EXHIBIT 1.1
MN DRAFT OF 2/3/04
U.S. $[________________]
CRUSADE MANAGEMENT LIMITED
CRUSADE GLOBAL TRUST NO. 1 of 2004
U.S. $[________] Class A-1
Mortgage Backed Floating Rate Notes
UNDERWRITING AGREEMENT
[February ___,] 2004
Credit Suisse First Boston LLC,
as Representative of the Several Underwriters,
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
1. Introductory. Perpetual Trustees Consolidated Limited (ABN 81 004 029 841), a
limited liability public company under the Corporations Act of Australia in its
capacity as trustee of the Crusade Global Trust No. [1 of 2004] (the "Issuer
Trustee") at the direction of Crusade Management Limited (ABN 90 072 715 916),
as manager (the "Trust Manager") of Crusade Global Trust No. [1 of 2004] (the
"Trust") proposes to sell to the several Underwriters listed in Schedule A
hereto (the "Underwriters"), for whom you are acting as representative (the
"Representative"), U.S.[$_______] 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 A$__________ Class ___ Notes [and its
A$___________ 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 [_______ ___,] 2004 (the "Cut-Off Date") with respect to
payments of principal and after the Closing Date (as defined herein) with
respect to payments of interest, rights under certain insurance policies with
respect to the Housing Loans, the Collection Account and the rights of the
Issuer Trustee under the Basic Documents. The Trust will be created pursuant to
the Master Trust Deed, dated March 14, 1998 (the "Master Trust Deed") and a
supplementary terms notice, to be dated on or about [_______ ___,] 2004 (the
"Supplementary Terms Notice"), each among the Issuer Trustee, ▇▇.▇▇▇▇▇▇ and the
Trust Manager, which sets forth specific provisions regarding the Trust and
details the provisions of the Notes. The Note Trust Deed, to be dated on or
about [_______ ___,]
2004 (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 ▇▇.▇▇▇▇▇▇
are sometimes referred to as a "▇▇.▇▇▇▇▇▇ Party" and collectively are sometimes
referred to herein as the "▇▇.▇▇▇▇▇▇ Parties."
The Trust Manager has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement, including a prospectus, relating to the Class A-1 Notes. In addition,
the United States Securities Exchange Act of 1934, as amended, is herein
referred to as the "Exchange Act".
When used in this Agreement, "Basic Documents" shall mean each of the
Master Trust Deed, the Supplementary Terms Notice, the Servicing Agreement, the
Class A-1 Notes, the Security Trust Deed, the Note Trust Deed, the
Fixed-Floating Rate Swap, the Currency Swap, the Basis Swap, and the Agency
Agreement. To the extent not defined herein, capitalized terms used herein have
the meanings assigned to such terms in the Prospectus (as defined hereinafter).
In this Agreement, a reference to the Issuer Trustee is a reference to the
Issuer Trustee in its capacity as trustee of the Trust only, and in no other
capacity. Any reference to the assets, business, property or undertaking of the
Issuer Trustee is a reference to the Issuer Trustee in that capacity only.
In this Agreement, a reference to any representation, warranty, covenant
undertaking or indemnity by St. ▇▇▇▇▇▇ or the Trust Manager shall be construed
such that a clear distinction exists between St. ▇▇▇▇▇▇ 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 I 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 information is provided in the
Registration Statement and the Prospectus (each as defined herein), there
has been no material adverse change or any development involving a
prospective material adverse change in the condition (financial or
otherwise) of the Issuer Trustee, except as disclosed in the Prospectus,
which is material in the context of the Issuer Trustee performing its
obligations and duties under the Class A-1 Notes and each Basic Document
to which it is or is to be a party.
(b) The Issuer Trustee is a corporation duly incorporated and existing
under the laws of Australia; it is lawfully qualified and holds all
Authorisations (as defined in the Master Trust Deed) necessary to carry on
its business as described in the Prospectus and to issue
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the Class A-1 Notes and to act as required by each Basic Document to which
it is or is to be a party and by law to comply with any requirements which
affect the operations or business of the Trust or the Issuer Trustee's
obligations under the Basic Documents to which it is a party and no other
thing is required to be done by the Issuer Trustee (including without
limitation the making of any filing or registration) in order to issue the
Class A-1 Notes or to execute and act as required by each Basic Document
to which it is to be a party.
(c) This Agreement has been duly authorized, executed and delivered by the
Issuer Trustee.
(d) The Class A-1 Notes have been duly authorized, and, when issued,
delivered and paid for pursuant to this Agreement, will have been duly
executed, issued and delivered and will constitute valid and binding
obligations of the Issuer Trustee, entitled to the benefits provided by
the Note Trust Deed and the Security Trust Deed, subject as to
enforceability to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation or other similar laws affecting
the enforcement of creditors' rights generally and to general equitable
principles. Each of the Basic Documents to which the Issuer Trustee is a
party have been duly authorized by the Issuer Trustee, and, when executed
and delivered by the Issuer Trustee and each of the other parties thereto,
will constitute a legal, valid and binding obligation of the Issuer
Trustee, enforceable against the Issuer Trustee in accordance with its
terms, subject as to enforceability to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation or other
similar laws affecting the enforcement of creditors' rights generally and
to general equitable principles.
(e) The Issuer Trustee is not, nor with the giving of notice or lapse of
time or both would be, in violation of or in default under, (i) its
Constitution or (ii) any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Issuer Trustee is
a party or by which it or any of its properties is bound, except in the
case of (ii) for violations and defaults which individually and in the
aggregate would not have a material adverse effect on the transactions
contemplated herein or in the Basic Documents; the issue and sale of the
Class A-1 Notes and the performance by the Issuer Trustee of all of the
provisions of its obligations under the Class A-1 Notes, the Basic
Documents and this Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, any agreement or instrument to which the Issuer Trustee is a party
or by which the Issuer Trustee is bound or to which any of the property or
assets of the Trust is subject, nor will any such action result in any
violation of the provisions of the Constitution of the Issuer Trustee or
any applicable law or statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Issuer
Trustee, or any of its properties; and, to the knowledge of the Issuer
Trustee, no consent, approval, authorization, order, license, registration
or qualification of or with any such court or governmental agency or body
is required for the 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
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be required under state securities or "Blue Sky" laws in connection with
the purchase and distribution of the Class A-1 Notes by the Underwriters.
(f) Other than as set forth or contemplated in the Prospectus, there are
no legal or governmental investigations, actions, suits or proceedings
pending or, to the knowledge of the Issuer Trustee, threatened against or
affecting the Issuer Trustee or the Trust, or to which the Issuer Trustee
is or may be a party or to which the Issuer Trustee or any property of the
Trust is or may be the subject, which will have an impact on the
transactions contemplated by this Agreement.
(g) The representations and warranties of the Issuer Trustee contained in
the Basic Documents are true and correct in all material respects.
(h) To the Issuer Trustee's knowledge, no event has occurred which would
entitle the Trust Manager to direct the Issuer Trustee to retire as
trustee of the Trust under clause 20 of the Master Trust Deed.
(i) The Issuer Trustee has not taken any corporate action nor (to the best
of its knowledge and belief) have any other steps been taken or legal
proceedings been started or threatened against the Issuer Trustee for its
winding-up, dissolution or reorganization or for the appointment of a
receiver, receiver and manager, administrator, provisional liquidator or
similar officer of it or of any or all of its assets.
(j) Subject to compliance with Section 128F of the Income Tax Assessment
Act (1936) (the "Tax Act") and compliance by the Underwriters with Section
10(b) and 10(c) hereto, no stamp or other duty is assessable or payable
in, and no withholding or deduction for any taxes, duties, assessments or
governmental charges of whatever nature is imposed or made for or on
account of any income, registration, transfer or turnover taxes, customs
or other duties or taxes of any kind, levied, collected, withheld or
assessed by or within, the Commonwealth of Australia or any sub-division
of or authority therein or thereof having power to tax in such
jurisdiction, in connection with the authorization, execution or delivery
of the agreements to which the Issuer Trustee is to be a party or with the
authorization, execution, issue, sale or delivery of the Class A-1 Notes
and the performance of the Issuer Trustee's obligations under the Basic
Documents, other than, in the case of stamp duty, following a Title
Perfection Event, to which it is to be a party and payments under the
Class A-1 Notes, except for nominal stamp duty payable in Queensland on
the initial transfer of the housing loans.
(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
Prospectus).
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II. Each St. ▇▇▇▇▇▇ Party, as to itself only, represents and warrants to each
Underwriter and the Issuer Trustee that:
(a) The Trust Manager has filed a registration statement on Form S-11 (No.
333-111723), including a form of preliminary prospectus, for registration
of the Class A-1 Notes under the Securities Act and has filed such
amendments thereto and will file such additional amendments thereto and
such amended prospectuses as may hereafter be required. Such registration
statement in the form in which it first became effective and as amended or
supplemented thereafter (if applicable) and the prospectus constituting a
part thereof (including all information deemed to be a part thereof
pursuant to Rule 430A(b) of the rules and regulations of the Commission
under the Securities Act) as amended or supplemented thereafter (if
applicable) under the Securities Act are herein referred to as the
"Registration Statement" and the "Prospectus", respectively, except that
if any revised prospectus shall be provided to you for use in connection
with the offering of the Class A-1 Notes which differs from the Prospectus
on file with the Commission at the time the Registration Statement becomes
effective (whether or not such revised prospectus is required to be filed
pursuant to Rule 424(b)), the term "Prospectus" shall refer to such
revised prospectus from and after the time it is first provided to you for
such use.
(b) The Registration Statement has been declared effective under the
Securities Act by the Commission. No stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
the Trust Manager, threatened by the Commission. The Registration
Statement and Prospectus (as amended or supplemented if the Trust Manager
shall have furnished any amendments or supplements thereto) comply, or
will comply, as the case may be, in all material respects with the
Securities Act and the rules and regulations of the Commission thereunder
and the Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Trust
Indenture Act") and do not and will not, as of the applicable effective
date of the Registration Statement and any amendment thereto and as of the
date of the Prospectus and any amendment or supplement thereto, contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and the Prospectus, as amended or supplemented, if
applicable, at the Closing Date will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; except that the foregoing representations and
warranties shall not apply to (i) that part of the Registration Statement
which constitutes the Statement of Eligibility and Qualification (Form
T-1) of the Note Trustee under the Trust Indenture Act and (ii) statements
in or omissions from the Registration Statement or the Prospectus based
upon written information furnished to the Trust Manager by any Underwriter
through the Representative specifically for use therein, it being
understood and agreed that the only such information is that described as
such in Section 7(b).
(c) Except as described in the Prospectus, since the respective dates as
of which information is given in the Registration Statement and the
Prospectus, there has been no
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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 Prospectus and to enter into and perform its
obligations under this Agreement and the Basic Documents to which it is a
party and carry out the transactions contemplated by such Basic Documents;
such ▇▇.▇▇▇▇▇▇ 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, and upon effectiveness of the
Registration Statement, the Note Trust Deed will have been duly qualified
under the Trust Indenture Act and, when executed and delivered by the
▇▇.▇▇▇▇▇▇ 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
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
6
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 Agreement or the
Basic Documents, except such consents, approvals, authorizations, orders,
licenses, registrations or qualifications as have been obtained under the
Securities Act, the Trust Indenture Act and as may be required under state
securities or "Blue Sky" laws in connection with the purchase and
distribution of the Class A-1 Notes by the Underwriters.
(h) Except as disclosed in the Prospectus, there are no legal or
governmental investigations, actions, suits or proceedings pending or, to
the knowledge of such ▇▇.▇▇▇▇▇▇ Party, threatened against or affecting
such ▇▇.▇▇▇▇▇▇ Party or its properties or, 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 an impact on the transactions contemplated by this Agreement; and
there are no statutes, regulations, contracts or other documents that are
required to be filed as an exhibit to the Registration Statement or
required to be described in the Registration Statement or the Prospectus
which are not filed or described as required.
(i) The representations and warranties of such ▇▇.▇▇▇▇▇▇ 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
7
reorganization or for the appointment of a receiver, receiver and manager,
administrator, provisional liquidator or similar officer of it or of any
or all of its assets.
(n) Subject to compliance with Section 128F of the Tax Act, no stamp or
other duty is assessable or payable in, and no withholding or deduction
for any taxes, duties, assessments or governmental charges of whatever
nature is imposed or made for or on account of any income, registration,
transfer or turnover taxes, customs or other duties or taxes of any kind,
levied, collected, withheld or assessed by or within, the Commonwealth of
Australia or any sub-division of or authority therein or thereof having
power to tax in such jurisdiction, in connection with the authorization,
execution or delivery of the agreements to which it is to be a party or
with the authorization, execution, issue, sale or delivery of the 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
Prospectus).
(p) Since [February ___,] 2004, 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; and
(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 Prospectus, will not be an
"investment company" as defined in the Investment Company Act.
3. Purchase, Sale and Delivery of Class A-1 Notes. On the basis of the
representations, warranties and agreements contained herein, but subject to the
terms and conditions herein set forth, the Issuer Trustee, at the direction of
the Trust Manager, agrees to sell the Class A-1 Notes to the Underwriters, and
each Underwriter agrees, severally and not jointly, to purchase from the Issuer
Trustee at a purchase price of 100% of the principal amount of the Class A-1
Notes (which amount may be made net of the commissions payable to the
Underwriters or such commissions may be paid to the Underwriters as a separate
payment, as the Representative and the St. ▇▇▇▇▇▇ 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.
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The Issuer Trustee will deliver against payment of the purchase price the
Class A-1 Notes in the form of one or more permanent Global Notes in definitive
form (the "Global Notes") deposited with the Note Trustee as custodian for The
Depository Trust Company (the "DTC") and registered in the name of Cede & Co.,
as nominee for DTC. Interests in any permanent Global Notes will be held only in
book-entry form through DTC, except in the limited circumstances described in
the Prospectus. Payment for the Class A-1 Notes shall be made by the
Underwriters in Federal (same day) funds by official bank check or checks or
wire transfer to an account at a bank acceptable to the Representative drawn to
the order of the National Australia Bank Limited (the "Currency Swap Provider")
at the office of Mayer, Brown, ▇▇▇▇ & Maw LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ not later than 10:00 A.M., New York City time, on [February ___,] 2004, 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 ▇▇.▇▇▇▇▇▇ Parties and the Issuer Trustee
understand that the several Underwriters propose to offer the Class A-1 Notes
for sale to the public as set forth in the Prospectus.
5. Certain Agreements of the Issuer Trustee and the ▇▇.▇▇▇▇▇▇ Parties.
I. Each ▇▇.▇▇▇▇▇▇ Party, in respect of itself only, covenants and agrees with
each of the several Underwriters as follows:
(a) The Trust Manager will file with the Commission pursuant to and in
accordance with Rule 430A and subparagraph (4) of Rule 424(b) copies of an
amended Prospectus containing all of the information omitted from the
Prospectus in reliance upon Rule 430A at the time the Registration
Statement became effective. The Trust Manager will advise the
Representative promptly of any such filing pursuant to Rule 424(b).
(b) The Trust Manager will advise the Representative promptly of any
proposal to amend or supplement the Registration Statement as filed or the
related Prospectus and will not effect such amendment or supplementation
without the Representative's consent; and the Trust Manager will also
advise the Representative promptly of the institution by the Commission of
any stop order proceedings in respect of the Registration Statement and
will use its best efforts to prevent the issuance of any such stop order
and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Class A-1 Notes is
required to be delivered under the Securities Act in connection with sales
by any Underwriter or dealer, any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Securities Act, the Trust Manager
will promptly notify the Representative of such event and will promptly
prepare and file with the Commission, at
9
its own expense, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance.
Neither the Representative's consent to, nor the Underwriters' delivery
of, any such amendment or supplement shall constitute a waiver of any of
the conditions set forth in Section 6.
(d) As soon as practicable, the Trust Manager will make generally
available to its securityholders an earnings statement covering a period
of at least 12 months beginning after the effective date of the
Registration Statement which will satisfy the provisions of Section 11(a)
of the Securities Act.
(e) The Trust Manager will furnish to the Representative copies of the
Registration Statement and each amendment (3 of which will be signed and
will include all exhibits), each related preliminary prospectus, and, so
long as a prospectus relating to the Class A-1 Notes is required to be
delivered under the Securities Act in connection with sales by any
Underwriter or dealer, the Prospectus and all amendments and supplements
to such documents, in each case in such reasonable quantities as the
Representative requests. The Prospectus shall be so furnished on or prior
to 3:00 P.M., New York time, on the business day following the later of
the execution and delivery of this Agreement or the effective time of the
Registration Statement. All other documents shall be so furnished as soon
as available. The Trust Manager will pay the expenses of printing and
distributing to the Underwriters all such documents.
(f) The Trust Manager will arrange for the qualification of the Class A-1
Notes for sale and the determination of their eligibility for investment
under the laws of such jurisdictions as the Representative designates and
will continue such qualifications in effect so long as required for the
distribution.
(g) So long as the Class A-1 Notes are outstanding, the Trust Manager will
furnish to the Representative (i) copies of each certificate, the annual
statements of compliance and the annual independent certified public
accountant's audit report on the financial statements furnished to the
Issuer Trustee or the Note Trustee pursuant to the Basic Documents by
first class mail as soon as practicable after such statements and reports
are furnished to the Issuer Trustee or the Note Trustee, (ii) copies of
each amendment to any of the Basic Documents, (iii) on each Determination
Date or as soon thereafter as practicable, the Bond Factor as of the
related Record Date shall be available to the Representative on Bloomberg
and Reuters, (iv) copies of all reports or other communications (financial
or other) furnished to holders of the Class A-1 Notes, and copies of any
reports and financial statements furnished to or filed with the
Commission, any governmental or regulatory authority or any national
securities exchange, and (v) from time to time such other information
concerning the Trust or the Trust Manager as the Representative may
reasonably request.
(h) To the extent, if any, that the ratings provided with respect to the
Class A-1 Notes by the Rating Agencies are conditional upon the furnishing
of documents or the taking of any other action by the Trust Manager, the
Trust Manager shall use its best efforts to furnish such documents and
take any other such action.
10
(i) The Trust Manager will assist the Representative in making
arrangements with DTC, Euroclear and Clearstream, Luxembourg concerning
the issue of the Class A-1 Notes and related matters.
(j) The Trust Manager will not take, or cause to be taken, any action and
will not knowingly permit any action to be taken which it knows or has
reason to believe would result in the Class A-1 Notes not being assigned
the ratings referred to in Section 6(n) below.
(k) ▇▇.▇▇▇▇▇▇ 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 preliminary prospectuses
and the Prospectus (including any amendments and supplements thereto) to
the Underwriters.
(l) ▇▇.▇▇▇▇▇▇ 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.
(m) 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.
(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:
11
(a) The Issuer Trustee will use the net proceeds received by the Issuer
Trustee from the sale of the Class A-1 Notes pursuant to this Agreement in
the manner specified in the Prospectus under the caption "Use of
Proceeds".
(b) The Issuer Trustee will pay any stamp duty or other issue,
transaction, value added or similar tax, fee or duty (including court
fees) in relation to the execution of, or any transaction carried out
pursuant to, the Basic Documents or in connection with the issue and
distribution of the Class A-1 Notes or the enforcement or delivery of this
Agreement.
(c) The Issuer Trustee will use all reasonable efforts to procure
satisfaction on or before the Closing Date of the conditions referred to
in Section 6 below and, in particular (i) the Issuer Trustee shall execute
those of the Basic Documents required to be executed by the Issuer Trustee
not executed on the date hereof on or before the Closing Date, and (ii)
the Issuer Trustee will assist the Representative to make arrangements
with DTC, Euroclear and Clearstream, Luxembourg concerning the issue of
the Class A-1 Notes and related matters.
(d) The Issuer Trustee will procure or cause to be procured that the
charges created by or contained in the Security Trust Deed are registered
within all applicable time limits in all appropriate registers.
(e) The Issuer Trustee will perform all its obligations under, and subject
to, each of the Basic Documents to which it is a party which are required
to be performed prior to or simultaneously with closing on the Closing
Date.
(f) The Issuer Trustee will not take, or cause to be taken, any action and
will not knowingly permit any action to be taken which it knows or has
reason to believe would result in the Class A-1 Notes not being assigned
the ratings referred to in Section 6(n) below.
(g) The Issuer Trustee will not prior to or on the Closing Date amend the
terms of any Basic Document to which it is a party nor execute any of the
Basic Documents to which it is a party other than in the agreed form
without the consent of the Representative.
6. Conditions of the Obligations of the Underwriters. The obligations of the
several Underwriters to purchase and pay for the Class A-1 Notes on the Closing
Date will be subject to the accuracy of the representations and warranties on
the part of the ▇▇.▇▇▇▇▇▇ 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 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
12
before or threatened by the Commission. The Prospectus, including all
price-related information previously omitted from the prospectus which
formed a part of the Registration Statement at the time it became
effective, in accordance with Rule 430A, shall have been transmitted to
the Commission for filing pursuant to Rule 424(b) within the applicable
time period prescribed for such filing by the rules and regulations under
the Securities Act and in accordance with Section 5.1.(a) hereof; and
prior to the Closing Date the Trust Manager shall have provided evidence
satisfactory to the Representative of such timely filing, and all requests
for additional information shall have been complied with to the
satisfaction of the Representative.
(b) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of any of the ▇▇.▇▇▇▇▇▇
Parties, the Issuer Trustee or any Swap Party and their respective
subsidiaries, in each case, taken as one enterprise, which, in the
judgment of a majority in interest of the Underwriters including the
Representative, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the sale
of and payment for the Class A-1 Notes; (ii) any downgrading in the rating
of any debt securities of any of the Trust Manager, ▇▇.▇▇▇▇▇▇, 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; or (vi) 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 the managing director, director or any chief general
manager of each ▇▇.▇▇▇▇▇▇ Party and (as
13
to paragraphs (i) and (ii) below only) of an authorized officer of the
Issuer Trustee in which such officers, to the best of their knowledge
after reasonable investigation, shall state that: (i) the representations
and warranties of such entity in this Agreement are true and correct; (ii)
such entity has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to such
Closing Date; (iii) in the case of the Trust Manager, no stop order
suspending the effectiveness of any Registration Statement has been issued
and no proceedings for that purpose have been instituted or are
contemplated by the Commission; and (iv) subsequent to the date of the
most recent financial statements supplied by the ▇▇.▇▇▇▇▇▇ Parties to the
Underwriters or the Representative on behalf of the Underwriters, there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
such entity and its subsidiaries taken as a whole except as set forth in
or contemplated by the Prospectus or as described in such certificate.
(d) Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, 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, a copy of which opinion is attached hereto as
Exhibit A.
(e) 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, a copy of which opinion is attached hereto as
Exhibit B.
(f) The Representative shall have received two letters, one dated the date
hereof and one dated the Closing Date, of KPMG LLP confirming that they
are independent public accountants within the standards established by the
American Institute of Certified Public Accountants and the meaning of the
Securities Act and the applicable published rules and regulations
thereunder (the "Rules and Regulations") and stating to the effect that
they have compared specified dollar amounts (or percentages derived from
such dollar amounts) and other financial information contained in the
Registration Statement (in each case to the extent that such dollar
amounts, percentages and other financial information are derived from the
general accounting records of the ▇▇.▇▇▇▇▇▇ Parties and their subsidiaries
subject to the internal controls of such parties' accounting system or are
derived directly from such records by analysis or computation or from the
collateral tape containing the description of the Housing Loans) with the
results obtained from inquiries, a reading of such general accounting
records and collateral tape and other procedures specified in such letter
and have found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as otherwise
specified in such letter.
(g) Mayer, Brown, ▇▇▇▇ & Maw LLP, United States counsel for the ▇▇.▇▇▇▇▇▇
Parties and the Issuer Trustee, shall have furnished to the Representative
their written opinion,
14
dated the Closing Date, in form and substance satisfactory to the
Representative, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon
such matters, to the effect that:
(1) The Note Trust Deed has been duly qualified under the Trust
Indenture Act;
(2) To such counsel's knowledge, there are no material contracts,
indentures, or other documents of a character required to be
described or referred to under either the Registration Statement or
the Prospectus or to be filed as exhibits to the Registration
Statement other than those described or referred to therein or filed
or incorporated by reference as exhibits thereto;
(3) The Trust is not and, after giving effect to the offering and
sale of the Class A-1 Notes and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940;
(4) No consent, approval, authorization or order of, or filing with,
any governmental agency located in the United States or body or any
court located in the United States is required for the consummation
of the transactions contemplated by this Agreement in connection
with the issuance or sale of the Class A-1 Notes by the Issuer
Trustee, except such as have been obtained and made under the
Securities Act and the Trust Indenture Act and such as may be
required under state securities laws;
(5) The Registration Statement was filed and was declared effective
under the Securities Act as of the date and time specified in such
opinion, the Prospectus either was filed with the Commission
pursuant to subparagraph (4) of Rule 424(b) on the date specified
therein, and, to the best of the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement or
any part thereof has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the
Securities Act, and the Registration Statement and the Prospectus,
and each amendment or supplement thereto, as of their respective
effective or issue dates, complied as to form in all material
respects with the requirements of the Securities Act, the Trust
Indenture Act and the Rules and Regulations; such counsel have no
reason to believe that any part of the Registration Statement or any
amendment thereto, as of its effective date or as of such Closing
Date, contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto, as of its issue
date or as of such Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; the
descriptions in the Registration Statement and Prospectus of
statutes, legal and governmental proceedings are accurate and fairly
present the information required to be shown: it being understood
that such counsel need express no opinion as to the financial
15
statements or other financial data contained in the Registration
Statement or the Prospectus;
(6) The statements in the Prospectus under the Captions "Description
of the Class A-1 Notes" and "Description of the Transaction
Documents", insofar as they purport to summarize certain terms of
the Class A-1 Notes and the applicable Basic Documents, constitute a
fair summary of the provisions purported to be summarized;
(7) The statements contained in the Prospectus under the captions
"ERISA Considerations" and "United States Federal Income Tax
Matters", to the extent that they constitute matters of federal law
or legal conclusions with respect thereto, while not purporting to
discuss all possible consequences of investment in the Class A-1
Notes, are correct in all material respect with respect to those
consequences or matters that are discussed therein; and
(8) This Agreement constitutes a legal valid and binding obligation
of each of ▇▇.▇▇▇▇▇▇, the Trust Manager and the Issuer Trustee.
(h) Mayer, Brown, ▇▇▇▇ & Maw LLP, United States federal income tax counsel
for the ▇▇.▇▇▇▇▇▇ Parties and the Issuer Trustee, shall have furnished to
the Representative their written opinion, dated the Closing Date, in form
and substance satisfactory to the Representative.
(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) White & Case LLP, counsel for the Note Trustee, shall have furnished
to the Representative their written opinion, dated the Closing Date, in
form and substance satisfactory to the Representative, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters.
(k) Counsel to the Currency Swap Provider shall have furnished to the
Representative and the ▇▇.▇▇▇▇▇▇ Parties their written opinion in form and
substance satisfactory to the Representative.
(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 Registration
Statement, the Prospectus and other related matters as the Representative
may reasonably request, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass upon
such matters.
(m) The Representative shall have received a letter or letters from each
counsel delivering any written opinion to any Rating Agency in connection
with the transaction
16
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 and Poors") and "Aaa" by ▇▇▇▇▇'▇ Investors
Service, Inc. ("Moody's" and together with Standard and 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.
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 any
Registration Statement or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading or (ii)
any untrue statement or alleged untrue statement of any material fact
contained in the Prospectus, or any amendment or supplement thereto, or
any related preliminary prospectus, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter or the Issuer Trustee in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that neither
▇▇.▇▇▇▇▇▇ 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 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; and provided,
17
further, that with respect to any untrue statement or alleged untrue
statement in or omission or alleged omission from any preliminary
prospectus the indemnity agreement contained in this paragraph (a) shall
not inure to the benefit of any Underwriter from whom the person asserting
any such losses, claims, damages or liabilities purchased the Class A-1
Notes concerned, to the extent that a prospectus relating to such Class
A-1 Notes was required to be delivered by such Underwriter under the
Securities Act in connection with such purchase and any such loss, claim,
damage or liability of such Underwriter results from the fact that there
was not sent or given to such person, at or prior to the written
confirmation of the sale of such Class A-1 Notes to such person, a copy of
the Prospectus if the Trust Manager had previously furnished copies
thereof to such Underwriter at least two Business Days prior to the
delivery of the related written confirmations regarding the sale of such
Class A-1 Notes to investors.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless ▇▇.▇▇▇▇▇▇, the Issuer Trustee and the Trust Manager, their
respective partners, their respective directors and their respective
officers and each person, if any, who controls such company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, against any losses, claims, damages or liabilities to which such
company may become subject, under the Securities Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in any
Registration Statement or arise out of or are based upon the omission or
the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading
or (ii) any untrue statement or alleged untrue statement of any material
fact contained in the Prospectus, or any amendment or supplement thereto,
or any related preliminary prospectus, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
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 Prospectus furnished on
behalf of each Underwriter: (i) the concession and reallowance percentages
appearing in the third paragraph under the caption "Plan of Distribution"
and (ii) the information contained in the eighth and ninth paragraphs
under the caption "Plan of Distribution"; provided, however, that the
Underwriters shall not be liable for any losses, claims, damages or
liabilities arising out of or based upon the Trust Manager's failure to
perform its obligations under Section 5.I.(b) of this Agreement..
(c) Promptly after receipt by an indemnified party under this paragraph
(c) of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above,
18
notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under
subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement
of any pending or threatened action in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party unless such settlement (i) includes an
unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not
include a statement as to, or an admission of, fault, culpability or a
failure to act by or on behalf of an indemnified party.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above
(i) in such proportion as is appropriate to reflect the relative benefits
received by the ▇▇.▇▇▇▇▇▇ 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).
19
Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Class A-1 Notes underwritten by it and
distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of a ▇▇.▇▇▇▇▇▇ 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 by available to any
indemnified party at law or in equity.
8. Default of Underwriters. If any Underwriter or Underwriters default in their
obligations to purchase Class A-1 Notes hereunder on the Closing Date and the
aggregate principal amount of Class A-1 Notes that such defaulting Underwriter
or Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of Class A-1 Notes that the Underwriters are obligated to
purchase on such Closing Date, the Representative may make arrangements
satisfactory to the Trust Manager for the purchase of such Class A-1 Notes by
other persons, including any of the Underwriters, but if no such arrangements
are made by such Closing Date, the non-defaulting Underwriters shall be
obligated severally, in proportion to their respective commitments hereunder, to
purchase the Class A-1 Notes that such defaulting Underwriters agreed but failed
to purchase on such Closing Date. If any Underwriter or Underwriters so default
and the aggregate principal amount of Class A-1 Notes with respect to which such
default or defaults occur exceeds 10% of the total principal amount of Class A-1
Notes that the Underwriters are obligated to purchase on such Closing Date and
arrangements satisfactory to
20
the Representative and the Trust Manager for the purchase of such Class A-1
Notes by other persons are not made within 36 hours after such default, this
Agreement will terminate without liability on the part of any non-defaulting
Underwriter or the Trust Manager, except as provided in Section 9. As used in
this Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
▇▇.▇▇▇▇▇▇ 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 St. ▇▇▇▇▇▇ Party, the Issuer
Trustee and the Underwriters pursuant to Section 7 shall remain in effect, and
if any Class A-1 Notes have been purchased hereunder the representations and
warranties in Section 2 and all obligations under Section 5 shall also remain in
effect. If the purchase of the Class A-1 Notes by the Underwriters is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 8 or the occurrence of any event specified in
clause (iii), (iv), (v) or (vi) of Section 6(b), each ▇▇.▇▇▇▇▇▇ 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 offering circular, prospectus or other disclosure document in
relation to any Class A-1 Notes has been lodged with the Australian Securities
and Investments Commission or the Australian Stock Exchange Limited. Each
Underwriter severally (but not jointly) represents and agrees that in connection
with the distribution of the Class A-1 Notes:
(1) it has not, directly or indirectly, offered for issue or sale or
invited applications for the issue of or for offers to purchase nor
has it sold, the Class A-1 Notes;
(2) it will not, directly or indirectly, offer for issue or sale or
invited applications for the issue of or for offers to purchase nor
will it sell the Class A-1 Notes; and
(3) it has not distributed and will not distribute any draft,
preliminary or definitive offering circular, or any advertisement or
other offering material,
in the Commonwealth of Australia, its territories or possessions ("Australia")
unless:
21
(I) the amount payable for the Class A-1 Notes on acceptance of
the offer by each offeree or invitee is a minimum amount of
A$500,000 (or its equivalent in another currency)
(disregarding amounts, if any, lent by Crusade Management Pty
Limited or other person offering the Class A-1 Notes or any
associate of them, which will also include for this purpose
the Issuer Trustee) or the offer or invitation is otherwise an
offer or invitation for which no disclosure is required to be
made under Part 6D.2 of the Corporations ▇▇▇ ▇▇▇▇ (Cth) (the
"Corporations Act") as then in effect and the Corporations
Regulations made under the Corporations Act as then in effect;
and
(II) the offer, invitation or distribution complies with all
applicable laws, regulations and directives in relation to the
offer, invitation or distribution and does not require any
document to be lodged with the Australian Securities and
Investments Commission or the Australian Stock Exchange
Limited.
(b) Each Underwriter severally (but not jointly) agrees that, in
connection with the primary distribution of the Class A-1 Notes, it will not
sell any Class A-1 Notes to any person if, at the time of such sale, the
employees of the Underwriter aware of, or involved in, the sale actually knows
or has reasonable grounds to suspect (but without an obligation on such
Underwriter to make any inquiry), that as a result of such sale, such Class A-1
Notes or any interest in such Class A-1 Notes were being, or would later be
acquired (directly or indirectly) by an Offshore Associate of the Issuer Trustee
(other than in the capacity of a dealer, manager or underwriter in relation to a
placement of the Class A-1 Notes or in the capacity of a clearing house,
custodian, funds manager or responsible entity of an Australian scheme.
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, not jointly) agrees that it must offer
the Class A-1 Notes for which it subscribes for sale within 30 days of the issue
of those Class A-1 Notes. Such offer must only be by one of the following means
(or a combination thereof):
22
(1) as a result of negotiations being initiated by the underwriter
in electronic form on Reuters or the electronic information system
made available to its subscribers by Bloomberg, L.P., specifying in
such offer the name of the issuer and the price at which the Class
A-1 Notes are offered for sale; or
(2) to at least 10 persons each of whom was carrying on a business
of providing finance, investing in or dealing in securities, in the
course of operating in financial markets who was not actually known
or reasonably suspected by the employees of each Underwriter acting
in relation to the sale to be an associate (as defined in Section
128F of the Tax Act) of any other person covered by this
sub-paragraph (2) (but without an obligation on such Underwriter to
make any inquiry); or
(3) to at least 100 persons who it would be reasonable to regard as
either having acquired instruments similar to the Class A-1 Notes in
the past or as likely to be interested in acquiring Class A-1 Notes.
Each Underwriter (severally, not jointly) agrees that it will provide the Issuer
Trustee (within five Business Days of the offer of such Class A-1 Notes by it) a
written statement which sets out the details of the relevant offer.
(d) Each Underwriter (severally, not jointly) agrees to co-operate with
reasonable requests from the Issuer Trustee for information for the purposes of
assisting the Issuer Trustee to demonstrate that the public offer test under
Section 128F of the Tax Act has been satisfied, provided that no Underwriter
shall be obliged to disclose:
(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 Trustee for the
financial year ending 30 September 2004.
(e) Each Underwriter (severally and not jointly) acknowledges that no
representation is made by the Issuer Trustee or any ▇▇.▇▇▇▇▇▇ Party that any
action has been or will be taken in any jurisdiction outside the United States
by the Issuer Trustee or any Underwriter that would permit a public offering of
the Class A-1 Notes, or possession or distribution of the Prospectus or any
other offering material, in any country or jurisdiction where action for that
purpose is required. Each Underwriter (severally and not jointly) will comply
with all applicable securities laws and regulations in each jurisdiction in
which it purchases, offers, sells or delivers Class A-1 Notes or has in its
possession or distributes the Prospectus or any other offering material, in all
cases at its own expense.
(f) Each Underwriter (severally and not jointly) agrees that:
23
(i) it has not offered or sold and will not offer or sell any
Class A-1 Notes to persons in the United Kingdom prior to the
expiry of a period of six months from the date of issue of the
Class A-1 Notes except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the
United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995, as amended (the "UK
Regulations");
(ii) it has complied with and will comply with all applicable
provisions of the UK Regulations and Financial Services and
Markets ▇▇▇ ▇▇▇▇, as amended (the "FSMA") with respect to
anything done by it in relation to the Class A-1 Notes in,
from or otherwise involving the United Kingdom; and
(iii) it has only issued or passed on and will only issue or pass on
in the United Kingdom any document received by it in
connection with the issue of the Class A-1 Notes to a person
who is of a kind described in Article 11(3) of the Financial
Services ▇▇▇ ▇▇▇▇ (Investment Advertisements) (Exemptions)
Order 1996 or is a person to whom such document may otherwise
lawfully be issued or passed on and it has only communicated
or caused to be communicated, and will only communicate or
cause to be communicated, any invitation or inducement to
engage in investment activity (within the meaning of section
21 of the FSMA) received by it in connection with the issue or
sale of such Class A-1 Notes in circumstances in which section
21(1) of the FSMA does not apply to the Issuer Trustee.
11. Certain Matters Relating to the Issuer Trustee. The Issuer Trustee enters
into this Agreement only in its capacity as trustee of the Trust and in no other
capacity. A liability arising under or in connection with this Agreement or the
Trust is limited to and can be enforced against the Issuer Trustee only to the
extent to which it can be satisfied out of assets and property of the Trust
which are available to satisfy the right of the Issuer Trustee to be exonerated
or indemnified for such liability. This limitation of the Issuer Trustee's
liability applies despite any other provisions of this Agreement and extends to
all liabilities and obligations of the Issuer Trustee in any way connected with
any representation, warranty, conduct, omission, agreement or Transaction
related to this Agreement or the Trust.
The parties other than the Issuer Trustee may not ▇▇▇ 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
24
exoneration out of the assets of the Trust as a result of the Issuer Trustee's
fraud, negligence or Default (as defined in the Master Trust Deed).
It is acknowledged that the Trust Manager, the Approved Seller, the
Servicer, the Custodian, the Currency Swap Provider, the Redraw Facility
Provider, the Swap Providers, the Note Trustee, the Principal Paying Agent, the
other Paying Agents, the Note Registrar, the Calculation Agent and the Agent
Bank (each, a "Relevant Party") are responsible under the Transaction Documents
(as defined in the Master Trust Deed) for performing a variety of obligations
relating to the Trust. No act or omission of the Issuer Trustee (including any
related failure to satisfy its obligations under the Transaction Documents) will
be considered fraud, negligence or Default (as defined in the Master Trust
Agreement) of the Issuer Trustee for the purpose of this Agreement to the extent
to which the act or omission was caused or contributed to by any failure by any
Relevant Party or any other person who has been delegated or appointed by the
Issuer Trustee in accordance with the Transaction Documents (as defined in the
Master Trust Deed) to fulfill its obligations relating to the Trust or by any
other act or omission of a Relevant Party or by any other such person.
12. Consent to Jurisdiction; Appointment of Agent to Accept Service of Process;
Satisfaction of Obligations in United States Dollars.
Each of the ▇▇.▇▇▇▇▇▇ 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 16, 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 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
25
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. 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 ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇
▇▇▇; 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
26
Securitisation; provided, however, that any notice to an Underwriter pursuant to
Section 7 will be mailed, delivered or telegraphed and confirmed to such
Underwriter.
17. Successors. This Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder.
18. Representation of Underwriters. The Representative will act for the several
Underwriters in connection with this financing, and any action under this
Agreement taken by the Representative will be binding upon all the Underwriters.
19. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.
20. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
27
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return the enclosed counterparts
hereof, whereupon it will become a binding agreement between the parties listed
below in accordance with its terms.
Very truly yours,
CRUSADE MANAGEMENT LIMITED
By:
---------------------------------------------
Name:
Title:
PERPETUAL TRUSTEES
CONSOLIDATED LIMITED
By:
---------------------------------------------
Name:
Title:
2
▇▇.▇▇▇▇▇▇ BANK LIMITED
By:
---------------------------------------------
Name:
Title:
3
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the day
first above written
CREDIT SUISSE FIRST BOSTON LLC.,
acting on behalf of itself as the Representative
of the several Underwriters
By:
---------------------------------------------
Name:
Title:
4
SCHEDULE A
PRINCIPAL AMOUNT OF CLASS A-1
Underwriter NOTES TO BE PURCHASED
----------- ---------------------
Credit Suisse First Boston LLC US$[_________________]
[_______________] US$[_________________]
[_______________] US$[_________________]
[_______________] US$[_________________]
Total............................... US$[_________________]
5
Crusade Global Trust No 1 of 2004
Certificate pursuant to section 6(c) of the Underwriting Agreement
Date: [February ___,] 2004
Credit Suisse First Boston LLC,
as Representative of the Several Underwriters,
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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 2004] (the "Issuer Trustee"), in the
Underwriting Agreement dated [February ___,] 2004 among Credit
Suisse First Boston 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:
6