EXECUTION VERSION
U.S. $1,450,000,000
CRUSADE MANAGEMENT LIMITED
CRUSADE GLOBAL TRUST NO. 1 of 2007
U.S. $1,450,000,000 Class A-1
Mortgage Backed Floating Rate Notes
UNDERWRITING AGREEMENT
March 8, 2007
Credit Suisse Securities (USA) LLC
As Representative of the several
Underwriters Listed in Schedule A
Eleven Madison Avenue
New York, New York 10010
UNITED STATES OF AMERICA
Dear Sirs:
1. Introductory. Perpetual Trustees Consolidated Limited (ABN 81 004 029
841), a limited liability public company under the Corporations Act of
Australia in its capacity as trustee of the Crusade Global Trust No. 1 of
2007 (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 2007 (the "TRUST") proposes to sell to the several
Underwriters listed in Schedule A hereto (the "UNDERWRITERS"), for whom you
are acting as representative (the "REPRESENTATIVE"), U.S. $1,450,000,000
principal amount of Class A-1 Mortgage Backed Floating Rate Notes (the
"CLASS A-1 NOTES") issued by the Trust. The Trust will also at the same
time issue its (euro)600,000,000 Class A-2 Mortgage Backed Floating Rate
Notes, its A$700,000,000 Class A-3 Mortgage Backed Floating Rate Notes, its
A$64,600,000 Class B Notes and its A$29,500,000 Class C Mortgage Backed
Floating Rate Notes (collectively, the "OTHER NOTES" and together with the
Class A-1 Notes, the "NOTES"). Each Note will be secured by the assets of
the Trust. The assets of the Trust include, among other things, a pool of
variable and fixed rate residential housing loans (the "HOUSING LOANS")
originated or acquired by ▇▇.▇▇▇▇▇▇ Bank Limited (ABN 92 055 513 070)
("▇▇.▇▇▇▇▇▇"), including all monies at any time paid or payable thereon or
in respect thereof, from the close of business on February 14, 2007 (the
"CUT-OFF DATE") with respect to payments of principal and after the Closing
Date (as defined herein) with respect to payments of interest, rights under
certain insurance policies with respect to the Housing Loans, the
Collection Account and the rights of the Issuer Trustee under the Basic
Documents. The Trust was created pursuant to the Master
Trust Deed, dated March 14, 1998 (the "MASTER TRUST DEED"), Notice of
Creation of Trust, dated March 5, 2007 and a supplementary terms notice, to
be dated on or about March 13, 2007 (the "SUPPLEMENTARY TERMS NOTICE"),
each among the Issuer Trustee, ▇▇.▇▇▇▇▇▇ and the Trust Manager, which set
forth specific provisions regarding the Trust and detail the provisions of
the Notes. The Note Trust Deed, to be dated on or about March 13, 2007 (the
"NOTE TRUST DEED") by and among the Issuer Trustee, the Trust Manager and
Deutsche Bank Trust Company Americas (the "NOTE TRUSTEE") provides for the
issuance and registration of the Class A-1 Notes in accordance with the
terms and conditions attached thereto. ▇▇.▇▇▇▇▇▇ will act as seller and as
servicer (the "SERVICER") of the Housing Loans. Each of the Trust Manager
and ▇▇.▇▇▇▇▇▇ is sometimes referred to as a "▇▇.▇▇▇▇▇▇ PARTY," and
collectively, they are sometimes referred to herein as the "▇▇.▇▇▇▇▇▇
PARTIES."
The Trust Manager has prepared and filed with the U.S. 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 on Form S-3 (No. 333-128920), including a form of prospectus
supplement and a base prospectus. The registration statement as amended at the
time when it became effective, or, if any post-effective amendment has been
filed with respect thereto, as amended by the most recent post-effective
amendment at the time of its effectiveness, is referred to in this Agreement as
the "REGISTRATION STATEMENT", the form of base prospectus included in the
Registration Statement as most recently filed with the SEC is referred to as the
"BASE PROSPECTUS" and the form of the prospectus which includes the Base
Prospectus and a prospectus supplement describing the Class A-1 Notes and the
offering thereof (the "FINAL PROSPECTUS SUPPLEMENT") which prospectus is first
filed on or after the date of this Agreement in accordance with Rule 424(b) is
referred to in this Agreement as the "FINAL PROSPECTUS". The preliminary form of
the Prospectus Supplement dated February 23, 2007 (the "INITIAL PRELIMINARY
PROSPECTUS SUPPLEMENT") as supplemented by the preliminary supplements thereto
dated March 6, 2007 and March 7, 2007 respectively (the "SUPPLEMENTED
PRELIMINARY PROSPECTUS SUPPLEMENT") is referred to as the "PRELIMINARY
PROSPECTUS SUPPLEMENT" and, together with the Base Prospectus, the "PRELIMINARY
PROSPECTUS." The United States Securities Exchange Act of 1934, as amended, is
herein referred to as the "EXCHANGE ACT".
When used in this Agreement, "BASIC DOCUMENTS" shall mean each of the
Master Trust Deed, the Supplementary Terms Notice, the Servicing Agreement, the
Class A-1 Notes, the Security Trust Deed, the Note Trust Deed, the
Fixed-Floating Rate Swap, the Currency Swap, the Basis Swap and the Agency
Agreement. To the extent not defined herein, capitalized terms used herein have
the meanings assigned to such terms in the Final Prospectus. "EFFECTIVE DATE"
shall mean the earlier of the date on which the Final Prospectus is first used
and the time of the first Contract of Sale to which such Final Prospectus
relates. "RULE 424" refers to such rule under the Securities Act. "CONTRACT OF
SALE" has the same meaning as in Rule 159 of the Securities Act and all
Commission guidance relating thereto. "FREE WRITING PROSPECTUS" shall have the
meaning given such term in Rules 405 and 433 of the Securities Act.
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.
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In this Agreement, a reference to any representation, warranty,
covenant undertaking or indemnity by ▇▇.▇▇▇▇▇▇ or the Trust Manager shall be
construed such that a clear distinction exists between ▇▇.▇▇▇▇▇▇ and the Trust
Manager in respect of any obligations in accordance with Australian Prudential
Regulatory Authority AGN 120.1.
Each ▇▇.▇▇▇▇▇▇ Party and the Issuer Trustee hereby agree with the
several Underwriters named on Schedule A as follows:
2. Representations and Warranties of the Issuer Trustee and the ▇▇.▇▇▇▇▇▇
Parties.
I. The Issuer Trustee represents and warrants to each Underwriter that:
(a) Since the respective dates as of which the information
contained in the Preliminary Prospectus and the Final Prospectus
under the heading "The Issuer Trustee, ▇▇.▇▇▇▇▇▇ Bank and the
Manager" was provided, 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 Preliminary Prospectus and
the Final Prospectus, which would affect that information which
is material in the context of the Issuer Trustee performing its
obligations and duties under the Class A-1 Notes and each Basic
Document to which it is or is to be a party.
(b) The Issuer Trustee is a corporation duly incorporated and
existing under the laws of Australia; it is lawfully qualified
and holds all Authorisations (as defined in the Master Trust
Deed) necessary for it to carry on its business as described in
the Preliminary Prospectus and the Final Prospectus, for it to
issue the Class A-1 Notes, for it to act as required by each
Basic Document to which it is or is to be a party and, by law,
for it to comply with any requirements which affect the
operations or business of the Trust or the Issuer Trustee's
obligations under the Basic Documents to which it is a party and
no other thing is required to be done by the Issuer Trustee
(including without limitation the making of any filing or
registration) in order to issue the Class A-1 Notes or to execute
and act as required by each Basic Document to which it is to be a
party.
(c) This Agreement has been duly authorized, executed and
delivered by the Issuer Trustee.
(d) The Class A-1 Notes have been duly authorized, and, when
issued, delivered and paid for pursuant to this Agreement, will
have been duly executed, issued and delivered and will constitute
valid and binding obligations of the Issuer Trustee, entitled to
the benefits provided by the Note Trust Deed and the Security
Trust Deed, subject as to enforceability to applicable
bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation or other similar laws affecting the
enforcement
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of creditors' rights generally and to general equitable
principles. Each of the Basic Documents to which the Issuer
Trustee is a party has been duly authorized by the Issuer
Trustee, and, when executed and delivered by the Issuer Trustee
and each of the other parties thereto, will constitute a legal,
valid and binding obligation of the Issuer Trustee, enforceable
against the Issuer Trustee in accordance with its terms, subject
as to enforceability to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation or
other similar laws affecting the enforcement of creditors' rights
generally and to general equitable principles.
(e) The Issuer Trustee is not, nor with the giving of notice or
lapse of time or both would be, in violation of or in default
under, (i) its Constitution or (ii) any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to
which the Issuer Trustee is a party or by which it or any of its
properties is bound, except in the case of (ii) for violations
and defaults which individually and in the aggregate would not
have a material adverse effect on the transactions contemplated
herein or in the Basic Documents; the issue and sale of the Class
A-1 Notes and the performance by the Issuer Trustee of all of the
provisions of its obligations under the Class A-1 Notes, the
Basic Documents and this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict
with or result in a breach of any of the terms or provisions of,
or constitute a default under, any agreement or instrument to
which the Issuer Trustee is a party or by which the Issuer
Trustee is bound or to which any of the property or assets of the
Trust is subject, nor will any such action result in any
violation of the provisions of the Constitution of the Issuer
Trustee or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Issuer Trustee, or any of its properties;
and, to the knowledge of the Issuer Trustee and assuming for this
purpose that the representations and warranties contained in
Section 2.II.(h) hereof are true and correct, no consent,
approval, authorization, order, license, registration or
qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Class A-1 Notes or
the consummation by 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 have been made and as may
be required under state securities or "Blue Sky" laws in
connection with the purchase and distribution of the Class A-1
Notes by the Underwriters.
(f) Other than as set forth or contemplated in the Preliminary
Prospectus and the Final 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
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the Trust, or to which the Issuer Trustee is or may be a party or
to which the Issuer Trustee or any property of the Trust is or
may be the subject, which will have an impact on the transactions
contemplated by this Agreement.
(g) The representations and warranties of the Issuer Trustee
contained in the Basic Documents are true and correct in all
material respects.
(h) To the Issuer Trustee's knowledge, no event has occurred
which would entitle the Trust Manager to direct the Issuer
Trustee to retire as trustee of the Trust under clause 20 of the
Master Trust Deed.
(i) The Issuer Trustee has not taken any corporate action nor (to
the best of its knowledge and belief) have any other steps been
taken or legal proceedings been started or threatened against the
Issuer Trustee for its winding-up, dissolution or reorganization
or for the appointment of a receiver, receiver and manager,
administrator, provisional liquidator or similar officer of it or
of any or all of its assets.
(j) Subject to compliance with Section 128F of the Income Tax
Assessment Act (1936) (the "TAX ACT") and compliance by the
Underwriters with Section 10(b) and 10(c) hereto, no stamp or
other duty is assessable or payable in, and no withholding or
deduction for any taxes, duties, assessments or governmental
charges of whatever nature is imposed or made for or on account
of any income, registration, transfer or turnover taxes, customs
or other duties or taxes of any kind, levied, collected, withheld
or assessed by or within, the Commonwealth of Australia or any
sub-division of or authority therein or thereof having power to
tax in such jurisdiction, in connection with the authorization,
execution or delivery of the agreements to which the Issuer
Trustee is to be a party or with the authorization, execution,
issue, sale or delivery of the Class A-1 Notes and the
performance of the Issuer Trustee's obligations under the Basic
Documents, other than, in the case of stamp duty, following a
Title Perfection Event (as defined in the Master Trust Deed), to
which it is to be a party and payments under the Class A-1 Notes.
(k) The Class A-1 Notes and the obligations of the Issuer Trustee
under the Note Trust Deed will be secured (pursuant to the
Security Trust Deed) by a first floating charge over the assets
of the Trust, subject to the terms of the Security Trust Deed.
(l) No event has occurred or circumstances arisen which, had the
Class A-1 Notes already been issued, would (whether or not with
the giving of notice and/or the passage of time and/or the
fulfillment of any other requirement) constitute an Issuer
Trustee's Default (as defined in the Final Prospectus).
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II. Each ▇▇.▇▇▇▇▇▇ Party, as to itself only, represents and warrants to
each Underwriter and the Issuer Trustee that:
(a) The Trust Manager filed the Registration Statement with the
Commission pursuant to the Securities Act. The Trust Manager
filed the Preliminary Prospectus pursuant to Rule 424(b) under
the Securities Act. The Trust Manager will file the Final
Prospectus with the Commission pursuant to Rule 424(b) under
Securities Act.
(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 Final 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 Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder (collectively, the
"TRUST INDENTURE ACT") and do not and will not, as of the
applicable Effective Date of the Registration Statement and any
amendment thereto and as of the date of the Final 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 Final 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 Final
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 Preliminary Prospectus and the
Final Prospectus, since the respective dates as of which
information is given in the Preliminary Prospectus and the Final
Prospectus, there has been no material adverse change, nor any
development involving a prospective material adverse change, in
the condition (financial or other), business, properties,
stockholders' equity or results of operations of such ▇▇.▇▇▇▇▇▇
Party taken as a whole.
(d) Such ▇▇.▇▇▇▇▇▇ Party is a corporation duly incorporated and
validly existing under the Corporations Act of the Commonwealth
of Australia as in effect at the date of this agreement; such
▇▇.▇▇▇▇▇▇ Party has the power and authority (corporate and other)
to own its properties and conduct its business as described in
the Preliminary Prospectus and the Final Prospectus and to enter
into and
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perform its obligations under this Agreement and the Basic
Documents to which it is a party and carry out the transactions
contemplated by such Basic Documents; such ▇▇.▇▇▇▇▇▇ Party has
been duly qualified or licensed for the transaction of business
and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties, or conducts any business,
so as to require such qualification or licensing, other than
where the failure to be so qualified or licensed or in good
standing would not have a material adverse effect on the
transactions contemplated herein or in the Basic Documents.
(e) This Agreement has been duly authorized, executed and
delivered by such ▇▇.▇▇▇▇▇▇ Party.
(f) The Basic Documents to which such ▇▇.▇▇▇▇▇▇ Party is a party
have been duly authorized by such ▇▇.▇▇▇▇▇▇ Party, the Note Trust
Deed will be timely and duly qualified under the Trust Indenture
Act (upon filing with the Commission) and, when executed and
delivered by the ▇▇.▇▇▇▇▇▇ Party which is a party thereto and
each of the other parties thereto, each of the Basic Documents to
which such ▇▇.▇▇▇▇▇▇ Party is a party will constitute a legal,
valid and binding obligation of such ▇▇.▇▇▇▇▇▇ Party, enforceable
against such ▇▇.▇▇▇▇▇▇ Party in accordance with its terms,
subject as to enforceability to applicable bankruptcy,
insolvency, reorganization, conservatorship, receivership,
liquidation or other similar laws affecting the enforcement of
creditors' rights generally and to general equitable principles;
and the Class A-1 Notes and the Basic Documents each will conform
to the descriptions thereof in the Preliminary Prospectus and the
Final Prospectus.
(g) Such ▇▇.▇▇▇▇▇▇ Party is not, and with the giving of notice,
or lapse of time or both would not be, in violation of or in
default under, (i) its Constitution or (ii) any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it or any of its
properties is bound, except in the case of (ii) for violations
and defaults which individually and in the aggregate would not
have a material adverse effect on the transactions contemplated
herein or in the Basic Documents; the issue and sale of the Class
A-1 Notes and the performance by such ▇▇.▇▇▇▇▇▇ Party of all of
the provisions of its obligations under the Class A-1 Notes, the
Basic Documents and this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict
with or result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which
such ▇▇.▇▇▇▇▇▇ Party is a party or by which such ▇▇.▇▇▇▇▇▇ Party
is bound or to which any of the property or assets of such
▇▇.▇▇▇▇▇▇ Party is subject, nor will any such action result in
any violation of the provisions of the Constitution of such
▇▇.▇▇▇▇▇▇ Party or any applicable law or statute or any order,
rule or regulation of any court or governmental agency or body
having jurisdiction over such ▇▇.▇▇▇▇▇▇ Party, or any of its
properties; and no consent, approval, authorization, order,
license, registration or qualification of or with any such court
or governmental agency or body is required for the issue and sale
of the Class A-1 Notes or the consummation by such ▇▇.▇▇▇▇▇▇
Party of the transactions contemplated by this
7
Agreement or the Basic Documents, except such consents,
approvals, authorizations, orders, licenses, registrations or
qualifications as have been obtained under the Securities Act,
the Trust Indenture Act, and as may be required under state
securities or "Blue Sky" laws in connection with the purchase and
distribution of the Class A-1 Notes by the Underwriters.
(h) Other than as set forth or contemplated in the Preliminary
Prospectus and the Final Prospectus, there are no legal or
governmental investigations, actions, suits or proceedings
pending or, to the knowledge of such ▇▇.▇▇▇▇▇▇ Party, threatened
against or affecting such ▇▇.▇▇▇▇▇▇ Party or its properties, to
which such ▇▇.▇▇▇▇▇▇ Party is or may be a party or to which such
▇▇.▇▇▇▇▇▇ Party or any property of such ▇▇.▇▇▇▇▇▇ Party is or may
be the subject, in each case, which will have a material adverse
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 Final Prospectus which are not filed or
described as required.
(i) The representations and warranties of such ▇▇.▇▇▇▇▇▇ Party
contained in the Basic Documents are true and correct in all
material respects.
(j) KPMG LLP are independent public accountants with respect to
such ▇▇.▇▇▇▇▇▇ Party within the meaning of the standards
established by the American Institute of Certified Public
Accountants.
(k) Such ▇▇.▇▇▇▇▇▇ Party owns, possesses or has obtained all
Authorisations (as defined in the Master Trust Deed), licenses,
permits, certificates, consents, orders, approvals and other
authorizations from, and has made all declarations and filings
with, all federal, state, local and other governmental
authorities (including foreign regulatory agencies), all
self-regulatory organizations and all courts and other tribunals,
domestic or foreign, necessary to perform its obligations under
this Agreement and the Basic Documents, and such ▇▇.▇▇▇▇▇▇ Party
has not received any actual notice of any proceeding relating to
revocation or modification of any such Authorisation, license,
permit, certificate, consent, order, approval or other
authorization; and such ▇▇.▇▇▇▇▇▇ Party is in compliance with all
laws and regulations necessary for the performance of its
obligations under this Agreement and the Basic Documents.
(l) To the knowledge of such ▇▇.▇▇▇▇▇▇ Party, no event has
occurred which would entitle such ▇▇.▇▇▇▇▇▇ Party to direct the
Issuer Trustee to retire as trustee of the Trust under clause 20
of the Master Trust Deed.
(m) Such ▇▇.▇▇▇▇▇▇ Party has not taken any corporate action nor
(to the best of its knowledge and belief) have any other steps
been taken or legal proceedings been started or threatened
against such ▇▇.▇▇▇▇▇▇ Party for its winding-up, dissolution or
reorganization or for the appointment of a receiver, receiver and
8
manager, administrator, provisional liquidator or similar officer
of it or of any or all of its assets.
(n) Subject to compliance with Section 128F of the Tax Act and
compliance by the Underwriters with Section 10(b) and 10(c)
hereto, no stamp or other duty is assessable or payable in, and
no withholding or deduction for any taxes, duties, assessments or
governmental charges of whatever nature is imposed or made for or
on account of any income, registration, transfer or turnover
taxes, customs or other duties or taxes of any kind, levied,
collected, withheld or assessed by or within, the Commonwealth of
Australia or any sub-division of or authority therein or thereof
having power to tax in such jurisdiction, in connection with the
authorization, execution or delivery of the agreements to which
it is to be a party or with the authorization, execution, issue,
sale or delivery of the Class A-1 Notes and the performance of
such ▇▇.▇▇▇▇▇▇ Party's obligations under the agreements to which
it is to be a party and the Class A-1 Notes.
(o) No event has occurred or circumstances arisen which, had the
Class A-1 Notes already been issued, would (whether or not with
the giving of notice and/or the passage of time and/or the
fulfillment of any other requirement) constitute a Manager's
Default (as defined in the Final Prospectus).
(p) Since February 15, 2007, there has been no material adverse
change or any development involving a prospective material
adverse change in the condition (financial or otherwise) of such
▇▇.▇▇▇▇▇▇ Party.
(q) As of the Closing Date, ▇▇.▇▇▇▇▇▇ will have transferred to
the Issuer Trustee a valid equitable assignment of each related
Housing Loan offered for sale by it to the Issuer Trustee.
(r) Neither the Trust nor any ▇▇.▇▇▇▇▇▇ Party is an open-end
investment company, unit investment trust or face-amount
certificate company that is or is required to be registered under
Section 3 of the United States Investment Company Act of 1940, as
amended (the "INVESTMENT COMPANY ACT"); and neither of the Trust
nor any ▇▇.▇▇▇▇▇▇ Party is and, after giving effect to the
offering and sale of the Class A-1 Notes and the application of
the proceeds thereof as described in the Preliminary Prospectus
and the Final Prospectus, will not be an "INVESTMENT COMPANY" as
defined in the Investment Company Act.
(s) The Trust Manager was not, as of any date on which a bona
fide offer (as such term is used in Rule 164(h)(2) of the
Securities Act) of the Class A-1 Notes was made, an "ineligible
issuer" as defined in Rule 405 under the Securities Act.
3. Purchase, Sale and Delivery of Class A-1 Notes. On the basis of the
representations, warranties and agreements contained herein, but subject to
the terms and conditions herein set forth, the Issuer Trustee, at the
direction of the Trust Manager, agrees to sell the Class A-1 Notes to the
Underwriters, and each Underwriter agrees, severally, and not jointly, to
purchase from the Issuer Trustee at a purchase price of 100% of the
principal amount of the Class A-1
9
Notes (which amount may be made net of the commissions payable to the
Underwriters or such commissions may be paid to the Underwriters as a
separate payment, as the Representative and the ▇▇.▇▇▇▇▇▇ Parties shall
agree) the respective principal amount of the Class A-1 Notes set forth
opposite the name of such Underwriter in Schedule A hereto. In addition,
the Underwriters shall severally, and not jointly, be responsible for
certain out-of-pocket expenses incurred by the ▇▇.▇▇▇▇▇▇ Parties in
connection with the offering of the Class A-1 Notes, as shall be agreed to
separately by the Underwriters and the ▇▇.▇▇▇▇▇▇ Parties (and such expenses
may include a portion of the related attorneys fees incurred by the
▇▇.▇▇▇▇▇▇ Parties). Furthermore, if any Class A-1 Notes are offered and
sold by an Underwriter pursuant to Section 10(j) hereof, compliance with
Section 10(j) shall, in all cases, be at such Underwriter's sole expense.
The Issuer Trustee will deliver against payment of the purchase price
the Class A-1 Notes in the form of one or more fully registered, global
book-entry notes (the "GLOBAL NOTES") deposited with the Note Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent Global Notes will be
held only in book-entry form through DTC, except in the limited circumstances
described in the Preliminary Prospectus and the Final Prospectus. Payment for
the Class A-1 Notes shall be made by the Underwriters in Federal (same day)
funds by official bank check or checks or wire transfer to an account at a bank
acceptable to the Representative drawn to the order of National Westminster Bank
Plc (the "CURRENCY SWAP PROVIDER") at the office of Mayer, Brown, ▇▇▇▇ & Maw
LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ not later than 10:00 A.M., New York
City time, on March 15, 2007, or at such other time not later than seven full
business days thereafter as the Representative and the Trust Manager determine,
such time being herein referred to as the "CLOSING DATE," against delivery to
the Note Trustee as custodian for DTC of the Global Notes representing all of
the Class A-1 Notes. The Global Notes will be made available for checking at the
above office at least 24 hours prior to the Closing Date.
4. Offering by Underwriters. The Trust Manager and the Issuer Trustee
understand that the several Underwriters propose to offer the Class A-1
Notes for sale to the public as set forth in the Preliminary Prospectus and
the Final Prospectus.
5. Certain Agreements of the ▇▇.▇▇▇▇▇▇ Parties, the Issuer Trustee and the
Underwriters.
I. Each ▇▇.▇▇▇▇▇▇ Party, in respect of itself only, covenants and agrees with
each of the several Underwriters as follows:
(a) The Trust Manager shall file the Final Prospectus, properly
completed, with the Commission pursuant to and in accordance with
subparagraph (5) of Rule 424(b) of the Securities Act no later than
the second business day following the date it is first used. 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,
the Preliminary Prospectus or the Final Prospectus, and subject to
Section 5.I.(c) hereof, will not effect such amendment or
supplementation without the Representative's consent (which will not
be unreasonably
10
withheld); and the Trust Manager will also advise the Representative
promptly of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement and will use its
best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Class A-1 Notes
is required to be delivered under the Securities Act in connection
with sales by any Underwriter or dealer, the Trust Manager becomes
aware of the occurrence of any event as a result of which the Final
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 Final 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) The Trust Manager will furnish to the Representative copies of the
Registration Statement and each amendment (which will include all
exhibits), the Preliminary Prospectus, and, so long as a prospectus
relating to the Class A-1 Notes is required to be delivered under the
Securities Act in connection with sales by any Underwriter or dealer,
the Final Prospectus and all amendments and supplements to such
documents, in each case in such reasonable quantities as the
Representative requests; provided, however, that if the Final
Prospectus is not delivered with the confirmation in accordance with
Rule 172 under the Securities Act, the Underwriters will provide the
notice specified in Section 5.III.(b) in every confirmation and will
deliver a paper copy of the Final Prospectus to those investors that
request a paper copy thereof. The Final Prospectus and any amendments
or supplements thereto, shall be so furnished on or prior to 3:00
P.M., New York time, on or prior to, the later to occur of the second
business day following the execution and delivery of this Agreement or
the date such Final Prospectus is first used, but in no event later
than the day before the Closing Date. 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.
(e) The Trust Manager will endeavor to qualify the Class A-1 Notes for
offer and sale and under the securities and Blue Sky laws of such
jurisdictions as the Representative designates and will continue such
qualification in effect so long as is reasonably required for the
distribution; provided the Trust Manager shall not be required to file
a general consent to service of process in any jurisdiction.
(f) So long as the Class A-1 Notes are outstanding, the Trust Manager
will furnish to the Representative (i) copies of each certificate, the
annual statements of compliance and the annual independent certified
public accountant's audit report on the financial statements furnished
to the Issuer Trustee or the Note Trustee pursuant to the Basic
Documents by first class mail as soon as practicable after such
statements and reports are furnished to the
11
Issuer Trustee or the Note Trustee, (ii) copies of each amendment to
any of the Basic Documents, (iii) on each Determination Date or as
soon thereafter as practicable, the Bond Factor as of the related
Record Date shall be available to the Representative on Bloomberg and
Reuters, (iv) copies of all reports or other communications (financial
or other) furnished to holders of the Class A-1 Notes, and copies of
any reports and financial statements furnished to or filed with 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.
(g) To the extent, if any, that the ratings provided with respect to
the Class A-1 Notes by the Rating Agencies are conditional upon the
furnishing of documents or the taking of any other action by the Trust
Manager, the Trust Manager shall use its best efforts to furnish such
documents and take any other such action.
(h) The Trust Manager will assist the Representative in making
arrangements with DTC, Euroclear and Clearstream, Luxembourg
concerning the issue of the Class A-1 Notes and related matters.
(i) The Trust Manager will not take, or cause to be taken, any action
and will not knowingly permit any action to be taken which it knows or
has reason to believe would result in the Class A-1 Notes not being
assigned the ratings referred to in Section 6(n) below.
(j) ▇▇.▇▇▇▇▇▇ will pay all expenses incident to the performance of the
▇▇.▇▇▇▇▇▇ Parties' obligations under this Agreement, for any filing
fees and other expenses (including fees and disbursements of
Underwriters' counsel and issuers' counsel) incurred in connection
with qualification of the Class A-1 Notes for sale under the laws of
such jurisdictions as the Representative designates and the printing
of memoranda relating thereto, for any fees charged by the independent
accountants, for any fees charged by the rating agencies for the
rating of the Class A-1 Notes, for any travel expenses of any of the
▇▇.▇▇▇▇▇▇ Parties' officers and employees and any other expenses of
either ▇▇.▇▇▇▇▇▇ Party in connection with attending or hosting
meetings with prospective purchasers of the Class A-1 Notes and for
expenses incurred in distributing the Preliminary Prospectus and the
Final Prospectus (including any amendments and supplements thereto) to
the Underwriters.
(k) ▇▇.▇▇▇▇▇▇ Bank will indemnify and hold harmless the Underwriters
against any documentary, stamp or similar issue tax, including any
interest and penalties, on the creation, issue and sale of the Class
A-1 Notes and on the execution and delivery of this Agreement. All
payments to be made by the Issuer Trustee and the ▇▇.▇▇▇▇▇▇ 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.
12
(l) The ▇▇.▇▇▇▇▇▇ Party will not offer, sell, contract to sell, pledge
or otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Securities Act relating
to asset-backed securities, or publicly disclose the intention to make
any such offer, sale, pledge, disposition or filing, without the prior
written consent of the Representative for a period beginning at the
date of this Agreement and ending at the later of the Closing Date or
the lifting of trading restrictions by the Representative.
(m) The Trust Manager will file the information substantially similar
to the information set forth on Schedule B (the "REVISED
INFORMATION"), not later than the date of first use thereof, provided
however, that prior to the filing of the Revised Information by the
Trust Manager, the Underwriters must comply with their obligations
pursuant to Section 5.III.(c); provided, however, that the Trust
Manager shall not be obligated to file the Revised Information if such
Revised Information has been determined to contain any material error
or omission unless the Revised Information has been provided to a
Potential Investor (as defined herein), in which case, the Trust
Manager shall file the corrective information provided by the
Underwriter pursuant to Section 5.III.(d) not later than the date of
first use thereof.
(n) So long as the Class A-1 Notes are outstanding, the Trust Manager
will not be or become (nor permit the Trust to be or become), an
open-end investment company, unit investment trust or face-amount
certificate company that is or is required to be registered under
Section 8 of the Investment Company Act.
II. The Issuer Trustee covenants and agrees with each of the several
Underwriters as follows:
(a) The Issuer Trustee will use the net proceeds received by the
Issuer Trustee from the sale of the Class A-1 Notes pursuant to this
Agreement in the manner specified in the Preliminary Prospectus and
the Final Prospectus under the caption "Use of Proceeds".
(b) The Issuer Trustee will pay any stamp duty or other issue,
transaction, value added or similar tax, fee or duty (including court
fees) in relation to the execution of, or any transaction carried out
pursuant to, the Basic Documents or in connection with the issue and
distribution of the Class A-1 Notes or the enforcement or delivery of
this Agreement.
(c) The Issuer Trustee will use all reasonable efforts to procure
satisfaction on or before the Closing Date of the conditions referred
to in Section 6 below and, in particular (i) the Issuer Trustee shall
execute those of the Basic Documents required to be executed by the
Issuer Trustee not executed on the date hereof on or before the
Closing Date, and (ii) the Issuer Trustee will assist the
Representative to make arrangements with DTC, Euroclear and
Clearstream, Luxembourg concerning the issue of the Class A-1 Notes
and related matters.
(d) The Issuer Trustee will procure or cause to be procured that the
charges created by or contained in the Security Trust Deed are
registered within all applicable time limits in all appropriate
registers.
13
(e) The Issuer Trustee will perform all its obligations under, and
subject to, each of the Basic Documents to which it is a party which
are required to be performed prior to or simultaneously with closing
on the Closing Date.
(f) The Issuer Trustee will not take, or cause to be taken, any action
and will not knowingly permit any action to be taken which it knows or
has reason to believe would result in the Class A-1 Notes not being
assigned the ratings referred to in Section 6(n) below.
(g) The Issuer Trustee will not prior to or on the Closing Date amend
the terms of any Basic Document to which it is a party nor execute any
of the Basic Documents to which it is a party other than in the agreed
form without the consent of the Representative.
III. Each of the several Underwriters, for itself only, represents,
warrants and agrees with the ▇▇.▇▇▇▇▇▇ Parties and the Issuer Trustee as
follows:
(a) Other than the Initial Preliminary Prospectus (as defined herein),
the Preliminary Prospectus, the Final Prospectus, the Revised
Information and the information set forth on Schedule C (the "INITIAL
INFORMATION"), such Underwriter has not conveyed and will not convey,
without the Trust Manager's prior written approval, to any potential
investor in the Class A-1 Notes (each a "POTENTIAL INVESTOR") any
other written material of any kind relating to the Class A-1 Notes
that would constitute a "prospectus" or a "free writing prospectus,"
each as defined in the Securities Act and Rule 405 thereunder, as
applicable, including, but not limited to the materials constituting a
"road show" presentation to Potential Investors (other than use or
transmission of such written or electronic materials as part of a live
or electronic road show in which representatives from the Trust
Manager participated) and any "ABS informational and computational
materials" within the meaning of Item 1101(a) of Regulation AB
promulgated by the Commission under the Securities Act and the
Exchange Act; provided, however, that, in addition to the foregoing,
such Underwriter may convey to one or more of its Potential Investors
information permitted by Rule 134 under the Securities Act.
(b) Prior to the Closing Date each Underwriter shall notify the Trust
Manager or ▇▇.▇▇▇▇▇▇ of the earlier of (x) the date on which the Final
Prospectus is first used and (y) the time of the first Contract of
Sale to which such Final Prospectus relates.
(c) The Underwriters shall deliver the Initial Information and the
Revised Information (including any corrected Revised Information to
the extent described in Section 5.I.(m)) to the Trust Manager and its
counsel (in such format as reasonably required by the Trust Manager)
prior to the proposed date of first use thereof (unless such timing
requirement is waived by the Trust Manager).
(d) If the Revised Information has been determined to contain any
material error or omission and the Revised Information has been
provided to a Potential Investor, the Underwriters shall cooperate
with the Trust Manager to prepare corrective information that the
Underwriters will provide to any such Potential Investor. In the event
that an Underwriter becomes aware that, as of the date on which an
investor entered into a
14
Contract of Sale, the Initial Information or the Revised Information
contained any untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading, such Underwriter shall notify the Trust Manager thereof as
soon as practical but in any event within one business day after
discovery.
(e) Each Underwriter represents that it will offer the Class A-1 Notes
for sale to the public as set forth in the Final Prospectus and that
all such offers and sales shall be made in compliance with the
Securities Act.
(f) Each Underwriter covenants with the Trust Manager and the Issuer
Trustee that after the Final Prospectus is available such Underwriter
shall not distribute any written information concerning the Class A-1
Notes to a Potential Investor unless such information is preceded or
accompanied by the Final Prospectus.
(g) (i) If the Final Prospectus is not delivered with the confirmation
in reliance on Rule 172 under the Securities Act, it will include in
every confirmation sent out the notice required by Rule 173 under the
Securities Act informing the investor that the sale was made pursuant
to the Registration Statement and that the investor may request a copy
of the Final Prospectus from such Underwriter; (ii) if a paper copy of
the Final Prospectus is requested by a person who receives a
confirmation, such Underwriter shall deliver a printed or paper copy
of such Prospectus; and (iii) if an electronic copy of the Final
Prospectus is delivered by such Underwriter for any purpose, such copy
shall be identical to the copy of the Final Prospectus that is
provided to such Underwriter by the Trust Manager for such purpose.
(h) Each of the several Underwriters, for itself only, further agrees
not to accept any offer to purchase Class A-1 Notes from a Potential
Investor prior to the delivery of the Initial Preliminary Prospectus
and the Preliminary Prospectus to such Potential Investor within the
time limits set forth in Section 10(k).
(i) If a ▇▇.▇▇▇▇▇▇ Party or an Underwriter determines or becomes aware
that any "written communication" (as defined in Rule 405 under the
Securities Act) (including without limitation the Preliminary
Prospectus) or oral statement (when considered in conjunction with all
information conveyed at the time of Contract of Sale) made or prepared
by the ▇▇.▇▇▇▇▇▇ Parties or such Underwriter contains an untrue
statement of material fact or omits to state a material fact necessary
to make the statements, in light of the circumstances under which they
were made, not misleading at the time that a Contract of Sale was
entered into, either such ▇▇.▇▇▇▇▇▇ Party or such Underwriter may
prepare corrective information acceptable to both parties (the
"CORRECTIVE INFORMATION"), and such Underwriter shall deliver such
Corrective Information, in a manner reasonably acceptable to both
parties, to any person with whom a Contract of Sale was entered into
based on such written communication or oral statement, and such
information shall provide any such person with the following:
(1) adequate disclosure of the contractual arrangement;
15
(2) adequate disclosure of the person's rights under the
existing Contract of Sale at the time termination is sought;
(3) adequate disclosure of the new information that is necessary
to correct the misstatements or omissions in the information
given at the time of the original Contract of Sale; and
(4) a meaningful ability to elect to terminate or not terminate
the prior Contract of Sale and to elect to enter into or not
enter into a new Contract of Sale.
Any costs incurred in connection with any such termination or
reformation shall be borne by the ▇▇.▇▇▇▇▇▇ Parties; provided,
however, that the Underwriters shall bear any costs incurred in
connection with any such termination or reformation that is
necessitated by a material misstatement or omission in the Underwriter
Information (as defined herein).
(j) Each Underwriter shall covenant not to distribute the Initial
Information in a manner reasonably designed to lead to its broad
unrestricted dissemination.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Class A-1 Notes on the
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the ▇▇.▇▇▇▇▇▇ Parties and the Issuer Trustee
herein, to the accuracy of the statements of officers of the ▇▇.▇▇▇▇▇▇
Parties and the Issuer Trustee made pursuant to the provisions hereof, to
the performance of the ▇▇.▇▇▇▇▇▇ 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 prior to 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 Preliminary Prospectus and the Final Prospectus
(including any amendments or supplements thereto) shall have been
transmitted to the Commission for filing pursuant to Rule 424(b)
within the applicable time period prescribed for such filings by the
Securities Act and in accordance with Section 5.I.(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 ▇▇.▇▇▇▇▇▇
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
16
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Class A-1 Notes on
the terms and in the manner contemplated by the Preliminary Prospectus
and the Final Prospectus; (ii) any downgrading in the rating of any
debt securities of any of the Trust Manager, ▇▇.▇▇▇▇▇▇, the Issuer
Trustee or any Swap Party by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Securities Act), or any public announcement that any such organization
has under surveillance or review its rating of the Class A-1 Notes or
any debt securities of any of the Trust Manager, ▇▇.▇▇▇▇▇▇, the Issuer
Trustee or any Swap Party (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any change in United States,
Australian or international financial, political or economic
conditions or currency exchange rates or exchange controls as would,
in the judgment of a majority in interest of the Underwriters,
including the Representative, be likely to prejudice materially the
success of the proposed issue, sale or distribution of the Class A-1
Notes, whether in the primary market or in respect of dealings in the
secondary market; (iv) any material suspension or material limitation
of trading in securities generally on the New York Stock Exchange, the
London Stock Exchange or any other exchange on which the Class A-1
Notes are listed, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of any of the
Trust Manager, ▇▇.▇▇▇▇▇▇, the Issuer Trustee or any Swap Party on any
exchange or in the over-the-counter market; (v) any banking moratorium
declared by U.S. Federal, New York, London, England or Australian
authorities; (vi) any material disruption in the settlement or
clearance services of DTC, Euroclear or Clearstream; or (vii) any
outbreak or escalation of major hostilities or material act of
terrorism involving the United States, the United Kingdom or
Australia, any declaration of war by Congress or any other substantial
national or international calamity or emergency if, in the judgment of
a majority in interest of the Underwriters, including the
Representative, the effect of any such outbreak, escalation, act,
declaration, calamity or emergency makes it impractical or inadvisable
to proceed with completion of the public offering or the sale of and
payment for the Class A-1 Notes.
(c) The Representative shall have received a certificate, dated the
Closing Date, of an authorized officer of the Issuer Trustee in which
such officer, to the best of its knowledge after reasonable
investigation, shall state that: (i) the representations and
warranties of such entity in this Agreement are true and correct; and
(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.
(d) The Representative shall have received a certificate, dated the
Closing Date, of the managing director, director or any chief general
manager of each ▇▇.▇▇▇▇▇▇ Party in which such officers, to the best of
their knowledge after reasonable investigation, shall state that
subsequent to the date of the most recent financial statements
supplied by the ▇▇.▇▇▇▇▇▇ Parties to the Underwriters or the
Representative on behalf of the Underwriters, there has been no
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 Preliminary Prospectus and the Final Prospectus or as described
in such certificate.
17
(e) Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Australian counsel for ▇▇.▇▇▇▇▇▇, 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.
(f) Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Australian tax counsel for ▇▇.▇▇▇▇▇▇, 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.
(g) The Representative shall have received two letters, one dated on
or about the date hereof and one dated on or about the date of the
Preliminary Prospectus, of KPMG LLP confirming that they are
independent public accountants within the standards established by the
American Institute of Certified Public Accountants and the meaning of
the Securities Act and 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 Preliminary
Prospectus and the Final Prospectus, and any amendment or supplement
thereto (in each case to the extent that such dollar amounts,
percentages and other financial information are derived from the
general accounting records of the ▇▇.▇▇▇▇▇▇ 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.
(h) Mayer, Brown, ▇▇▇▇ & Maw LLP, United States counsel for the
▇▇.▇▇▇▇▇▇ Parties, shall have furnished to the Representative their
written opinions, dated the Closing Date, in each case in form and
substance satisfactory to the Representative and their counsel.
(i) Mallesons ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Australian counsel for the Issuer
Trustee, shall have furnished to the Representative their written
opinion, dated the Closing Date, in form and substance satisfactory to
the Representative, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass
upon such matters.
(j) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Note Trustee, shall have
furnished to the Representative their written opinion, dated the
Closing Date, in form and substance satisfactory to the
Representative, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon
such matters.
(k) Counsel to the Currency Swap Provider shall have furnished to the
Representative and the ▇▇.▇▇▇▇▇▇ Parties their written opinions in
form and substance satisfactory to the Representative.
18
(l) ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special United States counsel to the
Representative and the Underwriters, shall have furnished to the
Representative their written opinion, dated the Closing Date, with
respect to the Preliminary Prospectus and the Final Prospectus and
other related matters as the Representative may reasonably request,
and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters.
(m) The Representative shall have received a letter or letters from
each counsel delivering any written opinion to any Rating Agency in
connection with the transaction described herein which is not
otherwise described in this Agreement allowing the Representative to
rely on such opinion as if it were addressed to the Representative.
(n) At the Closing Date, the Class A-1 Notes shall have been rated
"AAA" by Standard & Poor's Ratings Group, A Division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("STANDARD & POORS"), "Aaa" by ▇▇▇▇▇'▇
Investors Service, Inc. ("MOODY'S") and "AAA" by Fitch Australia Pty
Ltd ("FITCH" and together with Moody's and Standard & Poor's, the
"RATING AGENCIES") as evidenced by letters from the Rating Agencies.
(o) The execution and delivery by all parties thereto of the Basic
Documents on or prior to the Closing Date.
(p) Each class of the Other Notes will have been validly issued by the
Issuer Trustee upon the directions of the Trust Manager and are
outstanding without any default thereon.
(q) On or prior to the Closing Date the ▇▇.▇▇▇▇▇▇ Parties and the
Issuer Trustee shall have furnished to the Representative such further
certificates and documents as the Representative shall reasonably
request.
(r) On or prior to the Closing Date, the Currency Swap Provider shall
have executed a verification certificate in a form reasonably
satisfactory to the ▇▇.▇▇▇▇▇▇ Parties, the Issuer Trustee and the
Representative.
(s) The applicable dealers shall have purchased the Other Notes
pursuant to the related dealer agreement, among the Issuer Trustee,
each ▇▇.▇▇▇▇▇▇ Party and the applicable dealers.
7. Indemnification and Contribution.
(a) Each of ▇▇.▇▇▇▇▇▇ and the Trust Manager, severally, agrees to
indemnify and hold harmless each Underwriter and the Issuer Trustee,
its partners, directors and officers and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities, joint or several, to which such
Underwriter or the Issuer Trustee may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or arise out of
or are based upon the omission or alleged omission
19
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 Preliminary Prospectus or the Final Prospectus or any
amendment or supplement thereto, 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
the light of the circumstances under which they were made, not
misleading (other than, with respect to the Preliminary Prospectus,
the blanks and other items identified in the Preliminary Prospectus as
to be completed in the Final Prospectus), 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
▇▇.▇▇▇▇▇▇ 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 ▇▇.▇▇▇▇▇▇
or the Trust Manager by (i) any Underwriter through the Representative
specifically for use therein, it being understood and agreed that the
only such information furnished by any Underwriter consists of the
information described as such in subsection (b) below or (ii) the
Currency Swap Provider, for inclusion in each of the Preliminary
Prospectus and the Final Prospectus under the heading "Hedging
Arrangements--The Currency Swaps--National Westminster Bank Plc," and
provided, further, that with respect to any untrue statement or
alleged untrue statement in or omission or alleged omission from the
Preliminary Prospectus (or any amendment or supplement thereto) or the
Final Prospectus (or any amendment or supplement thereto), as
applicable, the indemnity agreement contained in this paragraph (a)
shall not inure to the benefit of any Underwriter, to the extent that
the Initial Preliminary Prospectus (as defined herein), the
Preliminary Prospectus, the Final Prospectus or Corrective
Information, as applicable, was required to be delivered by such
Underwriter pursuant to Section 10(k) 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
purchaser of Class A-1 Notes a copy of the Initial Preliminary
Prospectus (as defined herein), the Preliminary Prospectus, the Final
Prospectus or Corrective Information, as applicable (and any
amendments or supplements thereto), in accordance with the delivery
requirements set forth in Section 10(k), if the Trust Manager had
previously furnished copies thereof to such Underwriter prior to the
time such Underwriter was required to deliver the Initial Preliminary
Prospectus (as defined herein), the Preliminary Prospectus, the Final
Prospectus or Corrective Information, as applicable, (and any
amendments or supplements thereto), pursuant to Section 10(k).
(b) Each Underwriter will severally, and not jointly, indemnify and
hold harmless ▇▇.▇▇▇▇▇▇, the Issuer Trustee and the Trust Manager,
their respective partners, their respective directors and their
respective officers and each person, if any, who controls such company
within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, against any losses, claims, damages or
liabilities to which such company may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are
based upon (A)
20
(i) a breach of any of the selling restrictions by the applicable
Underwriter set forth in Section 10 or (ii) any information conveyed
by an Underwriter to any investor which is not permitted pursuant to
the provisions of Section 5.III.(a), or (B) (i) any untrue statement
or alleged untrue statement of any material fact contained in the
Registration Statement or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading or (ii) any untrue statement or alleged untrue statement of
any material fact contained in the Preliminary Prospectus (or any
amendments or supplements thereto) or the Final Prospectus (or any
amendments or supplements thereto), 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
▇▇.▇▇▇▇▇▇, 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 Preliminary Prospectus and the
Final Prospectus furnished on behalf of each Underwriter: (x) the
concession and reallowance percentages appearing in the fourth
paragraph under the heading "Plan of Distribution" and (y) the
information contained in the eighth and ninth paragraphs under the
heading "Plan of Distribution" (the "UNDERWRITER INFORMATION");
provided, however, that the Underwriters shall not be liable for any
losses, claims, damages or liabilities arising out of or based upon
the Trust Manager's failure to perform its obligations under Section
5.I.(b) of this Agreement.
(c) Promptly after receipt by an indemnified party under this
paragraph (c) of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under subsection (a) or (b) above,
notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise
than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any
legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party
is or could have been a party
21
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 ▇▇.▇▇▇▇▇▇ Parties and the Issuer
Trustee on the one hand and the Underwriters on the other from the
offering of the Class A-1 Notes or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the
▇▇.▇▇▇▇▇▇ 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 ▇▇.▇▇▇▇▇▇ 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 ▇▇.▇▇▇▇▇▇ 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 ▇▇.▇▇▇▇▇▇ Parties and the Issuer Trustee or the Underwriters and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the
subject of this subsection (d). In addition, nothing in this Section 7
shall require any of the ▇▇.▇▇▇▇▇▇ Parties or any Underwriter to
contribute to the amount paid or payable by any ▇▇.▇▇▇▇▇▇ Party or any
Underwriter, as applicable, from any losses, claims, damages or
liabilities arising out of or based on information contained in or
omitted from the information set forth in each of the Preliminary
Prospectus and the Final Prospectus under the heading "Hedging
Arrangements--The Currency Swaps--National Westminster Bank Plc."
Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Class A-1 Notes underwritten by it
and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in
22
this subsection (d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(e) The obligations of a ▇▇.▇▇▇▇▇▇ Party and the Issuer Trustee under
this Section shall be in addition to any liability which such
▇▇.▇▇▇▇▇▇ Party and the Issuer Trustee may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any,
who controls any Underwriter within the meaning of the Securities Act;
and the obligations of the Underwriters under this Section shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions,
to each director of a ▇▇.▇▇▇▇▇▇ Party or the Issuer Trustee, to each
officer of a ▇▇.▇▇▇▇▇▇ Party or the Issuer Trustee who has signed the
Registration Statement and to each person, if any, who controls a
▇▇.▇▇▇▇▇▇ Party or the Issuer Trustee within the meaning of the
Securities Act.
(f) To the extent that any payment of damages by ▇▇.▇▇▇▇▇▇ or the
Trust Manager pursuant to subsection 7(a) above is determined to be a
payment of damages pursuant to paragraph 15 of Guidance Note AGN
120.3- "Purchase and Supply of Assets (including Securities issued by
SPVs)", being a Guidance Note to Prudential Standard APS 120- "Funds
Management and Securitisation" or any successor thereto such payment
shall be subject to the terms therein (or the terms of any equivalent
provision in any replacement of Prudential Standard APS 120).
(g) The remedies provided in this Section 7, are not exclusive and
shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Class A-1 Notes hereunder on the Closing Date
and the aggregate principal amount of Class A-1 Notes that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed
10% of the total principal amount of Class A-1 Notes that the Underwriters
are obligated to purchase on such Closing Date, the Representative may make
arrangements satisfactory to the Trust Manager for the purchase of such
Class A-1 Notes by other persons, including any of the Underwriters, but if
no such arrangements are made by such Closing Date, the non-defaulting
Underwriters shall be obligated severally, and not jointly, in proportion
to their respective commitments hereunder, to purchase the Class A-1 Notes
that such defaulting Underwriters agreed but failed to purchase on such
Closing Date. If any Underwriter or Underwriters so default and the
aggregate principal amount of Class A-1 Notes with respect to which such
default or defaults occur exceeds 10% of the total principal amount of
Class A-1 Notes that the Underwriters are obligated to purchase on such
Closing Date and arrangements satisfactory to the Representative and the
Trust Manager for the purchase of such Class A-1 Notes by other persons are
not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter or the
Trust Manager, except as provided in Section 9. As used in this Agreement,
the term "UNDERWRITER" includes any person substituted for an Underwriter
under this Section. Nothing herein will relieve a defaulting Underwriter
from liability for its default.
23
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements
of the ▇▇.▇▇▇▇▇▇ 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 ▇▇.▇▇▇▇▇▇ Parties, the Issuer Trustee or any of
their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Class A-1 Notes.
If this Agreement is terminated pursuant to Section 8 or if for any reason
the purchase of the Class A-1 Notes by the Underwriters is not consummated,
each ▇▇.▇▇▇▇▇▇ Party, severally in respect of itself, shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to
Section 5 and the respective obligations of such ▇▇.▇▇▇▇▇▇ Party, the
Issuer Trustee and the Underwriters pursuant to Section 7 shall remain in
effect, and if any Class A-1 Notes have been purchased hereunder the
representations and warranties in Section 2 and all obligations under
Section 6 shall also remain in effect. If the purchase of the Class A-1
Notes by the Underwriters is not consummated for any reason other than
solely because of the termination of this Agreement pursuant to Section 8
or the occurrence of any event specified in clause (iii), (iv), (v), (vi)
or (vii) of Section 6(b), each ▇▇.▇▇▇▇▇▇ Party, severally, will reimburse
the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with
the offering of the Class A-1 Notes.
10. Selling Restrictions.
(a) No prospectus supplement, prospectus or other disclosure document
in relation to any Class A-1 Notes has been lodged with the Australian
Securities and Investments Commission or the Australian Securities
Exchange. The Class A-1 Notes may not, in connection with their
initial distribution, be offered or sold, directly or indirectly, in
the Commonwealth of Australia, its territories or possessions, or to
any resident of Australia. Each Underwriter severally, and 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 Class A-1 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 Class A-1 Notes; and
(3) has not distributed and will not distribute any draft,
preliminary or definitive prospectus, or any advertisement or
other offering material relating to the Class A-1 Notes,
in the Commonwealth of Australia, its territories or possessions ("AUSTRALIA")
unless:
(1) the amount payable for the Class A-1 Notes on acceptance
of the offer by each offeree or invitee is a minimum amount
of A$500,000 (or its equivalent in another currency)
(disregarding amounts, if any, lent by Crusade Management
Pty Limited or other person offering the Class A-1 Notes or
any associate of them, which will also include for this
purpose the
24
Issuer Trustee) or the offer or invitation is otherwise an
offer or invitation for which no disclosure is required to
be made under Part 6D.2 of the Corporations ▇▇▇ ▇▇▇▇ (Cth)
(the "CORPORATIONS ACT") as then in effect and the
Corporations Regulations made under the Corporations Act as
then in effect; and
(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 or the Australian Securities
Exchange.
(b) Each Underwriter severally, and not jointly, agrees
that, in connection with the primary distribution of
the Class A-1 Notes, it will not sell any Class A-1
Notes to any person if, at the time of such sale, the
employees of the Underwriter aware of, or involved in,
the sale actually knows (but without an obligation on
such Underwriter to make any inquiry) or has reasonable
grounds to suspect, that as a result of such sale, such
Class A-1 Notes or any interest in such Class A-1 Notes
were being, or would later be acquired (directly or
indirectly) by an Offshore Associate of the Issuer
Trustee (other than in the capacity of a dealer,
manager or Underwriter in relation to a placement of
the Class A-1 Notes or in the capacity of a clearing
house, custodian, funds manager or responsible entity
of an Australian registered scheme).
For purposes of this Section 10 an "OFFSHORE ASSOCIATE" of the Issuer Trustee
means an "associate" within the meaning of Section 128F of the Tax Act
(including for this purpose, any associates of Crusade Management Limited as a
beneficiary of the Trust) that is either:
(1) a non resident of Australia that does not acquire the Class
A-1 Notes in carrying on business at or through a permanent
establishment in Australia; or
(2) a resident of Australia that acquires the Class A-1 Notes in
carrying on a business at or through a permanent establishment
outside Australia.
Notwithstanding the foregoing, for purposes of this Section 10, an Underwriter
will be considered to have actual knowledge or reasonable grounds to suspect
that an entity is an Offshore Associate of the Issuer Trustee only if that
entity is identified on the lists that are to be provided to the Representative
by the Issuer Trustee and ▇▇.▇▇▇▇▇▇ Bank (collectively, the "LIST").
(c) Each Underwriter severally, and not jointly, agrees that it must
offer the Class A-1 Notes for which it subscribes for sale within 30
days of the issue of those Class A-1 Notes. Such offer must only be by
the Underwriter offering those Class A-1 Notes for sale to at least 10
persons, each an "Investor", each of whom must be:
25
(1) carrying on a business of providing finance, or investing or
dealing in securities in the course of operating in the financial
markets; and
(2) not known or reasonably suspected by the Underwriter to be an
associate within the meaning of Section 128F of the Tax Act of
any of the others.
(d) Each Underwriter severally, and not jointly, agrees that
it will provide the Issuer Trustee (within five Business
Days of the offer of such Class A-1 Notes by it) a written
statement which sets out the details of the relevant offer.
(e) Each Underwriter severally, and 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:
(1) the identity of the purchaser of any Class A-1 Note,
(2) any information from which such identity might/would be
capable of being ascertained,
(3) any information the disclosure of which would be contrary to
or prohibited by any relevant law, regulation or directive, or
(4) any information or documentation after a period of 4 years
from the lodgment of the income tax return by the Issuer Trustee
for the financial year ending 30 September 2007.
(f) Each Underwriter severally, and not jointly, agrees that:
(1) it has complied with and will comply with all applicable
provisions of the Financial Services and Markets Act 2000 (the
"FSMA") with respect to anything done by it in relation to the
Class A-1 Notes in, from or otherwise involving the United
Kingdom; and
(2) it has only communicated or caused to be communicated, and
will only communicate or cause to be communicated, an invitation
or inducement to engage in investment activity (within the
meaning of Section 21 of the FSMA) received by it in connection
with the issue or sale of any Class A-1 Notes in circumstances in
which Section 21(1) of the FSMA does not apply to the Issuer
Trustee.
(g) Each Underwriter severally, and not jointly, acknowledges that (1)
the Preliminary Prospectus and the Final Prospectus have not been and
will not be registered as a prospectus with the Monetary Authority of
Singapore and (2) the Class A-1 Notes are offered pursuant to
exemptions invoked under the Securities and Futures Act, Chapter
26
289 of Singapore (the "SECURITIES AND FUTURES ACT"). Accordingly, each
Underwriter severally, and not jointly, represents and agrees that
neither the Preliminary Prospectus and the Final Prospectus nor any
other document or material in connection with the offer or sale, or
invitation for subscription or purchase of the Class A-1 Notes will be
distributed or circulated by it nor will the Class A-1 Notes be
offered or sold, or be made the subject of an invitation for
subscription or purchase, whether directly or indirectly in Singapore
other than pursuant to, and in accordance with the conditions of, an
exemption invoked under Sub-division (4) of Division 1 of Part XIII of
or other applicable provision of the Securities and Futures Act and to
persons to whom any Class A-1 Notes may be offered or sold under any
such exemptions.
(h) Each Underwriter severally, and not jointly, agrees that:
(1) it has not offered or sold and will not offer or sell in Hong
Kong, by means of any document, any Class A-1 Notes other than:
(A) to persons whose ordinary business it is to buy or sell
shares or debentures (whether as principal or agent) or to
"professional investors" as defined in the Securities and Futures
Ordinance (Cap. 571) of the laws of Hong Kong and any rules made
under that Ordinance; or
(B) in other circumstances which do not result in the
document being a "prospectus" as defined in the Companies
Ordinance (Cap. 32) of the laws of Hong Kong or which do not
constitute an offer to the public within the meaning of the
Ordinance; and
(2) it has not issued or had in its possession for the purposes
of issue, and will not issue or have in its possession for the
purposes of issue, whether in Hong Kong or elsewhere, any
advertisement, invitation or document, relating to the Class A-1
Notes, which is directed at, or the contents of which are likely
to be accessed or read by, the public of Hong Kong (except if
permitted to do so under the securities laws of Hong Kong) other
than with respect to Class A-1 Notes which are or are intended to
be disposed of only to persons outside Hong Kong or only to
"professional investors" as defined in the Securities and Futures
Ordinance (Cap. 571) of Hong Kong and any rules made under that
ordinance.
(i) Each Underwriter severally, and not jointly, agrees that neither
the Class A-1 Notes nor the Preliminary Prospectus and the Final
Prospectus have been or will be approved or registered in the
administrative registries of the Spanish Securities Markets Commission
(Comision Nacional del Maercado de Valores). Accordingly, the Class
A-1 Notes may not and will not be sold, offered or distributed in
Spain except in circumstances which do not constitute a public offer
of securities in Spain within the meaning artcicle 30-bis of the
Spanish Securities Market Law of 28 July 1988 (Ley ▇▇/▇▇▇▇, ▇▇ ▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇) as amended and restated, and
supplemental rules enacted thereunder.
27
(j) Each Underwriter severally, and not jointly, acknowledges that no
action has been or will be taken to permit a public offering of the
Class A-1 Notes, or possession or distribution of the Preliminary
Prospectus and the Final Prospectus or any other offering material, in
any country or jurisdiction where action for that purpose is required.
Each Underwriter severally, and not jointly, agrees that: the
distribution of the Preliminary Prospectus and the Final Prospectus
and the offering and sale of the Class A-1 Notes in certain other
foreign jurisdictions may be restricted by law. The Class A-1 Notes
may not be offered or sold, directly or indirectly, and neither the
Preliminary Prospectus and the Final Prospectus nor any form of
application, advertisement or other offering material may be issued,
distributed or published in any country or jurisdiction, unless
permitted under all applicable laws and regulations. Each Underwriter
agrees severally, and not jointly, to comply with all applicable
securities laws and regulations in each jurisdiction in which it
purchases, offers, sells or delivers Class A-1 Notes or possesses or
distributes the Preliminary Prospectus and the Final Prospectus or any
other offering material.
(k) Each Underwriter severally, and not jointly, acknowledges and
agrees that it shall convey:
(1) the Initial Preliminary Prospectus Supplement together with
the Base Prospectus (together, the "INITIAL PRELIMINARY
PROSPECTUS") to each person who purchases a Class A-1 Note (or an
interest therein) from such Underwriter at least 48 hours prior
to the Applicable Time (as defined herein);
(2) the Preliminary Prospectus to each person who purchases a
Class A-1 Note (or interest therein) from such Underwriter at
least four (4) hours prior to the Applicable Time;
(3) the Final Prospectus in accordance with Section 5.III.(g)
hereof; and
(4) any Corrective Information prepared and delivered in
accordance with Section 5.III.(i) so that such Corrective
Information will be conveyed for purposes of Rule 159 of the
Securities Act.
As used herein, "APPLICABLE TIME" shall mean 10:29 A.M. Eastern time
on March 8, 2007 (which such Underwriter has informed the ▇▇.▇▇▇▇▇▇
Parties is a time prior to the time of the first Contract of Sale of
the Class A-1 Notes by an Underwriter).
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.
28
The parties other than the Issuer Trustee may not ▇▇▇ the Issuer
Trustee in any capacity other than as trustee of the Trust or seek the
appointment of a receiver (except under the Security Trust Deed) or a
liquidator, an administrator or any other similar person to the Issuer Trustee
or prove in any liquidation, administration or arrangements of or affecting the
Issuer Trustee.
The provisions of this Section 11 shall not apply to any obligation or
liability of the Issuer Trustee to the extent that it is not satisfied because
under a Basic Document or by operation of law there is a reduction in the extent
of the Issuer Trustee's indemnification or exoneration out of the assets of the
Trust as a result of the Issuer Trustee's fraud, negligence or Default (as
defined in the Master Trust Deed).
It is acknowledged that the Trust Manager, the Approved Seller, the
Servicer, the Custodian, the Currency Swap Provider, the Swap Providers, the
Note Trustee, the Principal Paying Agent, the other Paying Agents, the Note
Registrar, the Calculation Agent, and the Agent Bank (each, a "RELEVANT PARTY")
are responsible under the Transaction Documents (as defined in the Master Trust
Deed) for performing a variety of obligations relating to the Trust. No act or
omission of the Issuer Trustee (including any related failure to satisfy its
obligations under the Transaction Documents) will be considered fraud,
negligence or Default (as defined in the Master Trust Agreement) of the Issuer
Trustee for the purpose of this Agreement to the extent to which the act or
omission was caused or contributed to by any failure by any Relevant Party or
any other person who has been delegated or appointed by the Issuer Trustee in
accordance with the Transaction Documents (as defined in the Master Trust Deed)
to fulfill its obligations relating to the Trust or by any other act or omission
of a Relevant Party or by any other such person.
12. Consent to Jurisdiction; Appointment of Agent to Accept Service of
Process; Satisfaction of Obligations in United States Dollars.
Each of the ▇▇.▇▇▇▇▇▇ 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
▇▇.▇▇▇▇▇▇ Parties and the Issuer Trustee irrevocably appoints CT Corporation,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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 17, shall be deemed in every respect
effective service of process upon it in any such suit or proceeding. Each of the
▇▇.▇▇▇▇▇▇ Parties and the Issuer Trustee further agrees to take any and all
action as may be necessary to maintain such designation and appointment of such
agent in full force and effect for so long as the Class A-1 Notes remain
outstanding.
The obligation of any of the ▇▇.▇▇▇▇▇▇ 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 ▇▇.▇▇▇▇▇▇ Parties and the
29
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
▇▇.▇▇▇▇▇▇ 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 ▇▇.▇▇▇▇▇▇ Party, as
applicable, is compelled by law to deduct or withhold such taxes, duties or
charges. In that event, the Issuer Trustee or such ▇▇.▇▇▇▇▇▇ 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
▇▇.▇▇▇▇▇▇ 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 ▇▇.▇▇▇▇▇▇ 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 ▇▇.▇▇▇▇▇▇ 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 ▇▇.▇▇▇▇▇▇ Parties, as applicable, to the Payee and (b) if positive by
the Payee to the Issuer Trustee and the ▇▇.▇▇▇▇▇▇ Parties, as applicable.
The foregoing indemnity shall constitute a separate and independent
obligation of the Issuer Trustee, the Trust Manager and ▇▇.▇▇▇▇▇▇ or the
Payee, as the case may be, and shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. The term "RATE OR
EXCHANGE" shall include any premiums and costs of exchange payable in
connection with the purchase of, or conversion into, the relevant currency.
16. Absence of Fiduciary Relationship. Each of the Trust Manager and the
Issuer Trustee acknowledges and agrees that:
30
(a) the Representative and each Underwriter has been retained solely
to act as underwriter in connection with the sale of the Class A-1
Notes and that no fiduciary, advisory or agency relationship between
either the Trust Manager or the Issuer Trustee, on the one hand, and
the Representative and each Underwriter, on the other hand, has been
created in respect of any of the transactions contemplated by this
Agreement, irrespective of whether the Representative or any
Underwriter has advised or is advising the Trust Manager and/or the
Issuer Trustee on other matters;
(b) the price of the Class A-1 Notes set forth in this Agreement was
established by the Representative and the Underwriters following
discussions and arms-length negotiations with the Trust Manager, and
the Trust Manager and the Issuer Trustee are capable of evaluating and
understanding and understand and accept the terms, risks and
conditions of the transactions contemplated by this Agreement;
(c) they have been advised that the Representative, each Underwriter
and their respective affiliates are engaged in a broad range of
transactions which may involve interests that differ from those of the
Trust Manager and the Issuer Trustee and that the Representative and
each Underwriter has no obligation to disclose such interests and
transactions to the Trust Manager and the Issuer Trustee by virtue of
any fiduciary, advisory or agency relationship; and
(d) they severally waive, to the fullest extent permitted by law, any
claims they may have against the Representative or any Underwriter for
breach of fiduciary duty or alleged breach of fiduciary duty and agree
that the Representative and each Underwriter shall have no liability
(whether direct or indirect) to the Trust Manager or the Issuer
Trustee in respect of such a fiduciary duty claim or to any person
asserting a fiduciary duty claim on behalf of or in right of the Trust
Manager and/or the Issuer Trustee, including stockholders, employees
or creditors of the Trust Manager or the Issuer Trustee.
17. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representative at Eleven Madison Avenue, New York, New York 10010,
Attention: Legal (Facsimile No. 646 424-9416); if sent to the Trust Manager
will be mailed, delivered or telegraphed and confirmed to the Trust Manager
at c/o Company Secretary, ▇▇▇▇▇ ▇, ▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
(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 ▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ (Facsimile No. 612-9221-7870), Attention: Manager,
Securitisation; and if sent to ▇▇.▇▇▇▇▇▇, mailed, delivered or telegraphed
and confirmed to ▇▇.▇▇▇▇▇▇ at ▇▇▇▇▇ ▇, ▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ (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.
31
18. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no
other person will have any right or obligation hereunder.
19. Representation of Underwriters. The Representative will act for the
several Underwriters in connection with this financing, and any action
under this Agreement, or such other agreements as are necessary to further
the transactions contemplated hereby, taken by the Representative will be
binding upon all the Underwriters.
20. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
21. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
[signature pages follow]
32
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: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Group Executive,
Institutional & Business
Banking
▇▇.▇▇▇▇▇▇ BANK LIMITED
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Group Executive,
Institutional & Business
Banking
(Crusade Global Trust No. 1 of 2007 - Underwriting Agreement)
PERPETUAL TRUSTEES CONSOLIDATED LIMITED
By: /s/ ▇▇▇▇▇▇ Ruver
------------------------------------
Name: ▇▇▇▇▇▇ Ruver
Title: Manager
(Crusade Global Trust No. 1 of 2007 - Underwriting Agreement)
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the day first above written
CREDIT SUISSE SECURITIES (USA) LLC,
acting on behalf of itself and as the Representative
of the several Underwriters
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Director
(Crusade Global Trust No. 1 of 2007 - Underwriting Agreement)
SCHEDULE A
PRINCIPAL AMOUNT OF CLASS A-1 NOTES
Underwriter TO BE PURCHASED
---------------------------------- -----------------------------------
Credit Suisse Securities (USA) LLC U.S. $725,000,000
Greenwich Capital Markets, Inc. U.S. $725,000,000
Total U.S. $1,450,000,000
SCHEDULE B
REVISED INFORMATION
FORM OF PRICING BLOOMBERG SCREEN
CRUSADE No. 1 of 2007 - USD/EUR/AUD Aussie RMBS **PRICED**
Jt Leads: CS/RBS (A1 & A2) with SGB as Jt lead on A3. CS sole lead on B & C
Class Size(m) Rating (S/M/F) WAL Bench Level DollarPX
----- -------- -------------- ---- ---------- ------ --------
A1 USD1,450 AAA/Aaa/AAA 2.94 3M Libor + 6bps 100.00
A2 EUR600 AAA/Aaa/AAA 2.94 3M Euribor + 7bps 100.00
▇▇ ▇▇▇▇▇▇ ▇▇▇/▇▇▇/▇▇▇ 2.86 1M BBSW +15bps 100.00
B AUD64.6 AA/--/AA 5.02 3M BBSW +22bps 100.00
C AUD29.5 A+/--/AA- 4.94 3M BBSW +32bps 100.00
A1 - SEC Registered A2/A3 - ASX Listed
Expected Settlement: 15 March, 2007
Disclaimer:
The issuer has filed a registration statement (including a prospectus) with the
SEC for the offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the issuer
and this offering. You may get these documents for free by visiting ▇▇▇▇▇ on the
SEC Web site at ▇▇▇.▇▇▇.▇▇▇. Alternatively, Credit Suisse will arrange to send
you the prospectus if you request it by calling toll free 1-800-221-1037.
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO
THIS MESSAGE AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES HAVE
BEEN AUTOMATICALLY GENERATED AS A RESULT OF THIS MESSAGE HAVING BEEN SENT VIA
BLOOMBERG OR ANOTHER SYSTEM.
SCHEDULE C
INITIAL INFORMATION
*** Crusade No. 1 of 2007 DEAL ANNOUNCEMENT - USD/EUR/AUD RMBS***
Cls Size Rating (S/M/F) WAL Window Bench Lead Managers Status
--- -------- -------------- ---- ----------- ----- -------------- ------
A1 USD1bn AAA/Aaa/AAA 2.87 Apr 07~July 14 3mL CS, RBS
A2 Eur750m AAA/Aaa/AAA 2.87 Apr 07~July 14 3mE CS, RBS
A3 ▇▇▇▇▇▇▇ ▇▇▇/▇▇▇/▇▇▇ 2.78 Apr 07~July 14 1mB CS,RBS,SGB
B AUD54.6m AA/--/AA 4.97 Apr 10~July 14 3mB CS
C AUD25m A+/--/AA- 4.90 Apr 10~July 14 3mB CS
Collateral: Prime Aussie mortgages. 100% LMI. WA LTV: 65%.
WA Seasoning: 20 months
Roadshow: 28 Feb Sing/HK; 1-5 March Europe; 6 & 7 March US Exp pricing: 8 March
2007 Exp settlement: 15 March 2007
Materials avail: ▇▇▇▇://▇▇.▇▇▇▇.▇▇▇/▇▇_▇▇▇▇/
The issuer has filed a registration statement (including a prospectus) with the
SEC for the offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the issuer
and this offering. You may get these documents for free by visiting ▇▇▇▇▇ on the
SEC Web site at ▇▇▇.▇▇▇.▇▇▇. Alternatively, Credit Suisse will arrange to send
you the prospectus if you request it by calling toll free 1-800-221-1037.
CRUSADE GLOBAL TRUST NO. 1 OF 2007
Form of Certificate pursuant to section 6 of the Underwriting Agreement
[Date: [__________] [___], 2007
Credit Suisse Securities (USA) LLC
as Representative of the several Underwriters,
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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 2007 (the "Issuer Trustee"), in the Underwriting Agreement dated
[__________] [___], 2007 among Credit Suisse Securities (USA) LLC, as
representative (the "Representative") of the Underwriters listed in
Schedule A to that agreement (the "Underwriters"), Crusade Management
Limited, the Issuer Trustee and ▇▇.▇▇▇▇▇▇ 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:]