Exhibit 1.1
UNDERWRITING AGREEMENT
US$[ ]
[ ] TRUST 200[ ]- [ ]
Mortgage Backed [Floating Rate] [Fixed Rate] Notes, Series 200[ ]- [ ],
Class [ ]
UNDERWRITING AGREEMENT
----------------------
[ ], 200[ ]
[Name of Underwriter].
As Representative of the
Several Underwriters Listed
in Schedule 1
[Address of Underwriter]
Ladies and Gentlemen:
[Name of Issuer Trustee and ABA Number, acting in its capacity as
trustee] (the "Issuer Trustee") of the [ ] Trust 200[ ]-[ ] (the "Trust"),
acting at the direction of National Global MBS Manager Pty Ltd (ABN 36 102 668
226), a company incorporated in Australia, as manager of the Trust (the
"Global Trust Manager"), proposes to sell to the several Underwriters listed
in Schedule 1 to this Agreement (the "Underwriters"), for whom [Name of
Underwriter] acting as representative (the "Representative"), US$[ ] aggregate
principal amount of Mortgage Backed Floating Rate Notes, Series 200[ ]-[ ],
Class [ ] (the "Notes") issued by the Issuer Trustee. The Global Trust Manager
is a wholly-owned indirect subsidiary of National Australia Bank Limited (ABN
12 004 044 937), a company incorporated in Australia (the "National"). To the
extent not defined herein, capitalized terms used herein have the meanings
assigned to such terms in the National Mortgage Securities Trusts Definitions
Schedule dated, [ ], 200[ ] (the "Definitions Schedule"), by and among the
Issuer Trustee, the Global Trust Manager, P.T. Limited (the "Security
Trustee"), [Names of other parties to the Definitions Schedule] or in the
Supplemental Deed (defined below) in respect of the Trust. To the extent of
any disagreement between defined terms, the Supplemental Deed shall take
precedence over the Definitions Schedule, and this Agreement shall take
precedence over the Supplemental Deed.
The Notes will be secured principally by a pool of one- to four-family
residential mortgage loans secured by properties located in Australia (the
"Mortgage Loans"). The National, as seller (in such capacity, the "Seller"),
will equitably assign the Mortgage Loans to
the Issuer Trustee. The Mortgage Loans will be serviced for the Issuer Trustee
by the National (the "Servicer").
The Trust was created pursuant to a master trust deed dated as of [ ]
(the "Master Trust Deed"), between the Global Trust Manager and the Issuer
Trustee, and a supplemental deed dated as of [ ] (the "Supplemental Deed"),
among the National (as Seller and Servicer), the Global Trust Manager, the
Issuer Trustee and the Security Trustee, and a Notice of Creation of Trust
between the Global Trust Manager and the Issuer Trustee dated as of [ ]. The
Notes will be issued pursuant to a Note Trust Deed to be dated as of [ ] among
the Issuer Trustee, the Global Trust Manager and [Name of Note Trustee] (the
"Note Trustee").
The Global 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 on Form S-3 (No. 333-[ ]), including a form of preliminary
prospectus, for registration of the Notes under the Securities Act and has
filed such amendments thereto and will file such additional amendments thereto
and such amended prospectuses as may hereafter be required. Such registration
statement in the form in which it first became effective and as amended or
supplemented thereafter (if applicable) and the prospectus constituting a part
thereof (including all information deemed to be a part thereof pursuant to
Rule 430A(b) of the rules and regulations of the Commission under the
Securities Act as amended or supplemented thereafter (if applicable) under
the Securities Act) are herein referred to as the "Registration Statement" and
the "Prospectus", respectively, except that if any revised prospectus shall be
provided to the Underwriters for use in connection with the offering of the
Notes which differs from the Prospectus on file with the Commission at the
time the Registration Statement becomes effective (whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b)), the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first provided to the Underwriters for such use.
When used in this Agreement, "Basic Documents" shall mean collectively:
the Master Trust Deed (in so far as it applies to the Trust), the Supplemental
Deed in respect of the Trust, the Notes, the Master Security Trust Deed (in so
far as it applies to the Trust), the Deed of Charge in respect of the Trust,
the Servicing Agreement (insofar as it applies to the Trust), the Note Trust
Deed in respect of the Trust, the Agency Agreement in respect of the Trust,
the Sale Agreement and the Offer to Sell in respect of the Trust, the
Definitions Schedule, the Basis Swap Agreement in respect of the Trust, the
Fixed Rate Swap Agreement in respect of the Trust, the Currency Swap Agreement
in respect of the Trust, the Redraw Facility Agreement in respect of the
Trust, the Liquidity Facility Agreement in respect of the Trust, any document
in connection with, or evidencing a Support Facility in respect of the Trust,
any other document which is agreed to by the Global Trust Manager and the
Issuer Trustee to be a Transaction Document in relation to the Trust under the
Supplemental Deed, the DTC Letter of Representations, any undertakings given
to Euroclear or Clearstream, Luxembourg in connection with the Notes, any
agreement, instrument or undertaking entered into by the Issuer Trustee or any
National Party (as defined below) in connection with the listing of the Notes
on the [ ] and any other contract, agreement or instrument in connection with
the issuance and sale of the Notes. The National and the Global Trust Manager
are each a "National Party" and collectively are referred to as the "National
Party" or the "National Parties."
2
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, and a reference to the assets, business, property, undertaking
or other things of or in relation to the Issuer Trustee, unless otherwise
stated, is a reference to the assets, business, property, undertaking or other
things of or in relation to the Issuer Trustee in that capacity only.
Each of the National Parties and the Issuer Trustee hereby agrees with
the Underwriters as follows:
1. Purchase and Sale.
(a) The Issuer Trustee, at the direction of the Global Trust
Manager, agrees to sell, and the Global Trust Manager agrees to direct the
Issuer Trustee to sell, the Notes to the several Underwriters as hereinafter
provided, and each Underwriter, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
agrees to purchase, severally and not jointly, from the Issuer Trustee, the
respective principal amounts of the Notes as set forth opposite each
Underwriter's name in Schedule 1 hereto at a price equal to [ ]% of their
principal amount.
(b) The Underwriters agree to pay for any expenses incurred by the
National Parties in connection with any "roadshow" presentation to potential
investors.
2. Offering. The National Parties and the Issuer Trustee understand
that the Underwriters intend to make a public offering of their respective
portions of the Notes upon the terms set forth in the Prospectus, as
supplemented by the Prospectus Supplement, as soon after (A) the Registration
Statement has become effective and (B) the parties hereto have executed and
delivered this Agreement, as in the judgment of the Representative is
advisable.
3. Delivery and Payment. Payment for the Notes shall be made by wire
transfer in immediately available funds to the account specified by the Issuer
Trustee to the Representative no later than 12:00 noon, New York City time on
[ ], or at such other time on the same or such other date, not later than the
fifth Business Day thereafter, as the Representative, the Issuer Trustee and
the Global Trust Manager may agree upon in writing. The time and date of such
payment are referred to herein as the "Closing Date". As used herein, the term
"Business Day" means any day other than a day on which banks are permitted or
required to be closed in New York City, Sydney, Melbourne and London.
Payment for the Notes shall be made against delivery to the nominee of
the DTC for the account of the Representative and for the respective accounts
of the several Underwriters of one or more fully registered global book-entry
notes (the "Book-Entry Notes") representing $[ ] in aggregate Invested Amount
of Notes, with any transfer taxes payable in connection with the transfer to
the Underwriters of the Notes duly paid by the Issuer Trustee. The Book-Entry
Notes will be made available for inspection by the Representative at the
offices of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ not later than 1:00 P.M., New York City time, on the Business Day
prior to the Closing Date. Interests in any Book-Entry Notes will be held only
in book-entry form through the book-entry facilities of the DTC, except in
limited circumstances described in the Prospectus.
3
4. Representations and Warranties of the Issuer Trustee and the
National Parties.
I. The Issuer Trustee represents and warrants to each Underwriter and
the National Parties, as of the date of this Agreement and as of the Closing
Date, and agrees with each Underwriter and the National Parties, that:
(a) since the respective dates as of which information is provided
in the Prospectus and the related Prospectus Supplement, there has not been
any material adverse change or any development involving a prospective
material adverse change in or affecting the general affairs, business,
prospects, management, or results of operations, condition (financial or
otherwise) of the Issuer Trustee or the Trust except as disclosed in the
Prospectus or the related Prospectus Supplement which is material in the
context of performing the Issuer Trustee's obligations and duties under the
Notes and each Basic Document to which it is or is to be a party;
(b) the Issuer Trustee has been duly incorporated and is validly
existing as a corporation under the laws of [ ], with power and authority
(corporate and other) to conduct its business as described in the Prospectus,
and to enter into and perform the Issuer Trustee's obligations under this
Agreement and the Basic Documents and the Issuer Trustee has been duly
qualified for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it conducts any business, so as to
require such qualification, other than where the failure to have such power
and authority or to be so qualified or in good standing would not individually
or in the aggregate have a material adverse effect on the transactions
contemplated herein or in the Basic Documents;
(c) the Issuer Trustee has duly authorized, executed and delivered
this Agreement;
(d) the Notes have been duly authorized by the Issuer Trustee, and,
when the Notes have been issued (and duly authenticated by the Note Trustee),
delivered and paid for pursuant to this Agreement, they will constitute valid
and binding obligations of the Issuer Trustee entitled to the benefits of the
Note Trust Deed and the Master 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;
(e) the execution, delivery and performance by the Issuer Trustee of
each of the Basic Documents to which it either is, or is to be, a party and
this Agreement has been duly authorized by the Issuer Trustee and, when
executed and delivered by it and the other parties thereto, each of the Basic
Documents will constitute a legal, valid and binding obligation of the Issuer
Trustee, enforceable against it 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;
(f) the Issuer Trustee is not, nor with the giving of notice or
lapse of time or both will be, in violation of or in default under: (i) its
constitution or (ii) any indenture, mortgage, deed of trust, deed to secure
debt, loan agreement or other agreement or instrument to
4
which it is a party or by which it or any of its properties is bound, except
for violations and defaults which individually and in the aggregate would not
have a material adverse effect on the transactions contemplated in the Basic
Documents;
(g) the issue and sale of the Notes and the performance by the
Issuer Trustee of all of the provisions of the Issuer Trustee's obligations
under the Notes, the Basic Documents and this Agreement, and the consummation
of the transactions herein and therein contemplated will not (i) 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, deed to secure debt,
loan agreement or other agreement or instrument to which it is a party or by
which it is bound or to which any of its property or assets is subject, (ii)
result in any violation of the provisions of its constitution or any
applicable law or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over it, or any of its
properties; or (iii) result in the creation or imposition of any lien or
encumbrance upon any of its property pursuant to the terms of any indenture,
mortgage, contract or other instrument to which it is a party or by which it
is bound other than pursuant to the Basic Documents;
(h) no consent, approval, authorization, order, license,
registration or qualification of or with any such court or governmental agency
or body is required for the issue and sale of the Notes or the consummation by
the Issuer Trustee of the transactions contemplated by this Agreement or the
Basic Documents, except such consents, approvals, authorizations, orders,
licenses, registrations or qualifications (i) as have been obtained under the
Securities Act and the Trust Indenture Act of 1939, as amended, and the rules
and regulations of the Commission thereunder (the latter, including such
applicable rules and regulations, the "Trust Indenture Act"), (ii) as may be
required under state securities or "Blue Sky" Laws in connection with the
purchase and distribution of the Notes by the Underwriters and (iii) of or
with any court or governmental agency or body having jurisdiction over the
Issuer Trustee which the failure to obtain or make would not (A) have
individually or in the aggregate a material adverse effect on the condition
(financial or otherwise), earnings, business or properties of the Issuer
Trustee and its subsidiaries, taken as a whole, (B) affect the validity of the
Notes or rights of the holders of the Notes or (C) prevent or delay the
consummation of the transactions contemplated in the Basic Documents;
(i) other than as set forth in or contemplated by the Prospectus or
in the related Prospectus Supplement, there are no legal or governmental
investigations, actions, suits or proceedings pending or, to its knowledge,
threatened against or affecting it or the Trust or to which it is or may be a
party or to which it is or may be the subject: (i) asserting the invalidity of
this Agreement or of any of the Basic Documents, (ii) seeking to prevent the
issuance of the Notes or the consummation of any of the transactions
contemplated by this Agreement or any of the Basic Documents by the Issuer
Trustee, (iii) that may adversely affect the US Federal or Australian Federal
or state income, excise, franchise or similar tax attributes of the Notes,
(iv) that could materially and adversely affect the Issuer Trustee's
performance of its obligations under, or the validity or enforceability
against the Issuer Trustee of, this Agreement or any of the Basic Documents or
(v) which could individually or in the aggregate reasonably be expected to
have a material adverse effect on the interests of the holders of any of the
Notes;
5
(j) the representations and warranties of the Issuer Trustee
contained in the Basic Documents are true and correct in all material
respects;
(k) the Issuer Trustee has not taken any corporate action and (to
the best of its knowledge and belief having made reasonable inquiry and
investigation) no other steps have been taken or legal proceedings been
started or threatened against it for its winding-up, dissolution,
reconstruction 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 or revenues;
(l) no stamp or other duty is assessable or payable in, and subject
only to compliance with Section 128F of the Income Tax Assessment Act 1936
(the "Australian Tax Act") in relation to interest payments under the Notes,
no withholding or deduction for any taxes, duties, assessments or governmental
charges of whatever nature will be 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 (i) the
authorization, execution or delivery of any of the Transaction Documents to
which it is or is to be a party or with the authorization, execution, issue,
sale or delivery of the Notes under this Agreement, (ii) the sale and delivery
of the Notes by the Underwriters contemplated in this Agreement and the
Prospectus or (iii) the execution, delivery or performance by the Issuer
Trustee of any of the Transaction Documents to which it is or is to be a party
or the Notes; except, in the case of subclause (iii), for any of the
Transaction Documents on which nominal stamp duty is payable or any other
document executed in connection with the perfection of the Issuer's Trustee's
legal title to the Mortgage Loans on which stamp duties or registration fees
may be payable;
(m) the Notes and the obligations of the Issuer Trustee under the
Note Trust Deed will be secured (pursuant to the Master Security Trust Deed
and the Deed of Charge) by a first ranking fixed and floating charge over the
assets of the Trust; and
(n) no event has occurred or circumstances arisen which, had the
Notes already been issued, would (whether or not with the giving of notice or
direction and/or the passage of time and/or the fulfillment of any other
requirement) obligate it to retire as Issuer Trustee or constitute grounds for
its removal as Issuer Trustee under any Basic Document or constitute an Event
of Default (as defined in the Deed of Charge).
II. Each National Party severally represents and warrants to each
Underwriter and the Issuer Trustee as of the date of this Agreement and as of
the Closing Date that:
(a) The Global Trust Manager has filed a registration statement on
Form S-3 (No. 333-[ ]), including a form of each of a prospectus and a
prospectus supplement, for registration of the Notes under the Securities Act
and has filed such amendments thereto and will file such additional amendments
thereto and such amended prospectuses as may hereafter be required.
6
(b) since the respective dates as of which information is given in
the Registration Statement, the Prospectus or the Prospectus Supplement, there
has not been any material adverse change, or any development involving a
prospective material adverse change, in or affecting (x) the general affairs,
business, prospects, management, financial position, stockholders' equity or
results of operations of the National Parties taken as a whole or (y) the
general affairs, business, prospects, condition (financial or otherwise) of
the Trust otherwise than as set forth or contemplated in the Prospectus, which
is material in the context of performing the National Parties' or Trust's
obligations and duties under the Notes and each Basic Document to which they
are or are to be a party;
(c) it has been duly established and is validly existing with power
and authority under the laws of its jurisdiction of creation to conduct its
business as described in the Prospectus and to enter into and perform its
obligations under this Agreement and the Basic Documents, and, in each case,
has been duly qualified for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it conducts any
business, so as to require such qualification, other than where the failure to
have such power and authority or to be so qualified or in good standing would
not individually or in the aggregate have a material adverse effect on the
transactions contemplated in this Agreement or in the Basic Documents;
(d) this Agreement has been duly authorized, executed and delivered
by it;
(e) each of the Basic Documents to which it is or is to be a party
has been duly authorized by it and, upon effectiveness of the Registration
Statement, the Note Trust Deed will have been duly qualified under the Trust
Indenture Act and each of the Basic Documents, when executed and delivered by
each National Party that is a party to it and the other parties thereto, will
constitute a valid and legally binding obligation of such National Party,
enforceable against it in accordance with its terms, subject as to
enforceability to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation or other similar laws of general
applicability relating to or affecting the enforcement of creditors rights
generally and to general equitable principles;
(f) other than as set forth in or contemplated by the Prospectus,
there are no legal or governmental investigations, actions, suits or
proceedings pending or, to its knowledge, threatened against or affecting it
or the Trust or to which it is or may be a party or to which it is or may be
the subject: (i) asserting the invalidity of this Agreement or of any of the
Basic Documents, (ii) seeking to prevent the issuance of the Notes or the
consummation of any of the transactions contemplated by this Agreement or any
of the Basic Documents, (iii) that may adversely affect the U.S. Federal or
Australian Federal or state income, excise, franchise or similar tax
attributes of the Notes, (iv) that could materially and adversely affect its
performance of its obligations under, or the validity or enforceability
against it of, this Agreement or any of the Basic Documents or (v) which could
individually or in the aggregate reasonably be expected to have a material
adverse effect on the interests of the holders of any of the Notes;
(g) there are no contracts or other documents to which it is a party
or bound that are required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration Statement, the
Prospectus or the Prospectus Supplement which are not filed or described as
required; and
7
(h) its representations and warranties contained in the Basic
Documents are true and correct in all material respects as of the applicable
date made or given.
III. The Global Trust Manager represents and warrants to each Underwriter
and the Issuer Trustee as of the date of this Agreement and as of the Closing
Date, that:
(a) the Registration Statement has been declared effective by the
Commission under the Securities Act; the conditions to the use by the Global
Trust Manager of a Registration Statement on Form S-3 under the Act, as set
forth in the General Instructions to Form S-3, have been satisfied with
respect to the Registration Statement and the Prospectus; 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
Global Trust Manager, threatened by the Commission; and (i) on the Effective
Date of the Registration Statement, the Registration Statement conformed in
all material respects to the requirements of the Securities Act, and did not
include 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 (ii) at the time of filing of the Prospectus
pursuant to Rule 424(b) and on the Closing Date the Prospectus and the
Registration Statement will conform in all material respects to the
requirements of the Securities Act, and such document will not include 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, 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 or omissions in the Registration Statement
or the Prospectus made in reliance upon and in conformity with information
relating to any Underwriter furnished to any National Party in writing by such
Underwriter expressly for use therein;
(b) the documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, at the time they
were or hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") and, when read together with the other
information in the Prospectus, at the time the Registration Statement became
effective, at the date of the Prospectus and at the Closing Date, did not and
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided,
however, no representation or warranty is made as to documents deemed to be
incorporated by reference in the Registration Statement as the result of
filing any Current Report on Form 8-K at the request of the Underwriters
except to the extent such documents accurately reflect or are accurately based
upon information furnished by or on behalf of the National Parties to the
Underwriters for the purpose of preparing such documents;
(c) [ ] are independent public accountants with respect to the
National and the Global Trust Manager within the meaning of the Securities
Act;
8
(d) to the knowledge of the Global Trust Manager, no event has
occurred that would entitle the Global Trust Manager to direct the Issuer
Trustee to retire as trustee of the Trust under clause [ ] of the Master Trust
Deed;
(e) the Trust is not and (i) upon the issuance and sale of the Notes
as contemplated in this Agreement, (ii) the application of the net proceeds
therefrom as described in the Prospectus, (iii) the performance by the parties
to the Transaction Documents of their respective obligations under the
Transactions Documents, and (iv) the consummation of the transactions
contemplated by the Transaction Documents, the Trust will not be required to
be registered as an "investment company" within the meaning of the Investment
Company Act of 1940, as amended; and
(f) application has been made to list the Notes on the [ ] and for
the Notes to be admitted to trading and all relevant requirements for such
listing will have been complied with.
5. Covenants and Agreements.
I. The Issuer Trustee covenants and agrees with each of the several
Underwriters and each of the National Parties as follows:
(a) to use the net proceeds received by the Issuer Trustee from the
sale of the Notes pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
(b) to notify the Representative and the National Parties promptly
after it becomes actually aware of any matter which would make any of its
representations and warranties in this Agreement untrue if given at any time
prior to payment being made to the Issuer Trustee on the Closing Date and take
such steps as may be reasonably requested by the Representative to remedy the
same;
(c) to pay any stamp duty or other issue, transaction, value added,
goods and services or similar tax, fee or duty (including court fees) in
relation to the execution of, or any transaction carried out pursuant to, this
Agreement and the Basic Documents or in connection with the issue and
distribution of the Notes or the enforcement or delivery of this Agreement and
the Basic Documents;
(d) to use all reasonable endeavors to procure satisfaction on or
before the Closing Date of the conditions referred to in Section 6 below which
relate to the Issuer Trustee and, in particular (i) the Issuer Trustee shall
execute those of the Basic Documents not executed on the date hereof on or
before the Closing Date, and (ii) the Issuer Trustee will assist the
Representative to make arrangements with DTC, Euroclear and Clearstream,
Luxembourg concerning the issue of the Notes and related matters;
(e) to provide reasonable assistance to the National Parties to
procure that the charges created by or contained in the Deed of Charge are
registered within all applicable time limits in all appropriate registers;
9
(f) to perform all of its obligations under each of the Transaction
Documents to which it is a party which are required to be performed prior to
or simultaneously with closing on the Closing Date;
(g) not to take, or cause to be taken, any action or knowingly
permit any action to be taken which it knows or has reason to believe would
result in the Notes not being assigned the ratings referred to in Section 6(n)
below;
(h) not, prior to or on the Closing Date, amend the terms of any
Basic Document nor execute any of the Basic Documents other than in the agreed
form without the consent of the Underwriters;
(i) for the purposes of section 128F(3)(c) of the Australian Tax
Act, it will, before it issues any Note, seek a listing of the Notes on the [
] and the admission of the Notes to trading on the [ ], and use its best
efforts to maintain such listing for as long as any of the Notes are
outstanding; provided, however, if such listing becomes impossible, to use its
best efforts to obtain, and will thereafter use its best efforts to maintain a
quotation for, or listing of, the Notes on such other exchange as is commonly
used for the quotation or listing of debt securities as it may, with the
approval of the Representative, decide.
II. Except where otherwise specified below as a covenant solely
applicable to the Global Trust Manager, each National Party severally
covenants and agrees with each of the several Underwriters and the Issuer
Trustee as follows:
(a) in the case of the Global Trust Manager only, to cause the final
Prospectus and Prospectus Supplement to be filed with the Commission within
the time periods specified by Rule 424(b) and Rule 430A under the Securities
Act, and to furnish copies of the Prospectus and the related Prospectus
Supplement to the Underwriters in New York City prior to 10:00 a.m., New York
City time, on the Business Day next succeeding the date of this Agreement in
such quantities as the Representative may reasonably request;
(b) in the case of the Global Trust Manager only, to deliver, at the
expense of the Global Trust Manager, to the Representative, five signed copies
of the Registration Statement (as originally filed) and each amendment
thereto, in each case including exhibits, and to each other Underwriter a
conformed copy of the Registration Statement (as originally filed) and each
amendment thereto, in each case without exhibits and, during the period
mentioned in paragraph (f) below, to each of the Underwriters as many copies
of the Prospectus and the related Prospectus Supplement (including all
amendments and supplements thereto and documents incorporated by reference
therein) as the Representative may reasonably request during the period within
which the Representative may be required to deliver such documents under the
Act;
(c) in the case of the Global Trust Manager only, before filing any
amendment or supplement to the Registration Statement or the Prospectus,
whether before or after the time the Registration Statement becomes effective,
to furnish to the Representative a copy of the proposed amendment;
10
(d) in the case of the Global Trust Manager only, to advise the
Representative promptly, and to confirm such advice in writing, (i) when any
amendment to the Registration Statement has been filed or becomes effective,
(ii) when any supplement to the Prospectus or any amendment to the Prospectus
has been filed and to furnish the Representative with copies thereof, (iii) of
any request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus or the
Prospectus or the initiation or threatening of any proceeding for that purpose
and (v) of the occurrence of any event 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 in order to make the
statements therein, in light of the circumstances when the Prospectus and the
related Prospectus Supplement are delivered to a purchaser, not misleading;
and to use its reasonable best efforts to prevent the issuance of any such
stop order, or of any order preventing or suspending the use of any
preliminary prospectus or the Prospectus, or of any order suspending the
qualification of the Notes, or notification of any such order thereof and, if
issued, to obtain as soon as possible the withdrawal thereof;
(e) to advise the Representative promptly, and to confirm such
advice in writing of the receipt by the Global Trust Manager of any
notification with respect to any suspension of the qualification of the Notes
for offer and sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose;
(f) in the case of the Global Trust Manager only, if, during such
period of time after the first date of the public offering of the Notes and in
the opinion of counsel for the Underwriters a prospectus relating to the Notes
is required by law to be delivered in connection with sales by an Underwriter
or a dealer, any event shall occur as a result of which it is necessary to
amend or supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement the
Prospectus to comply with law, forthwith to prepare and furnish, at the
expense of the National Parties, to the Underwriters and to the dealers (whose
names and addresses the Representative will furnish to the National) to which
Notes may have been sold by the Representative on behalf of the Underwriters
and to any other dealers upon request, such amendments or supplements to the
Prospectus as may be necessary so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law;
(g) in the case of the Global Trust Manager only, to endeavor to
qualify the Notes for offer and sale under the securities or Blue Sky laws of
such jurisdictions as the Representative shall reasonably request and to
continue such qualification in effect so long as reasonably required for
distribution of the Notes, provided that the Global Trust Manager shall not be
required to file a general consent to service of process in any jurisdiction;
(h) in the case of the Global Trust Manager only, to make generally
available to the holders of the Notes and to the Representative as soon as
practicable an earnings statement covering a period of at least twelve months
beginning with the first fiscal quarter of the Trust
11
occurring after the effective date of the Registration Statement, which shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of
the Commission promulgated thereunder;
(i) in the case of the Global Trust Manager only, to the extent, if
any, that the ratings provided with respect to the Notes by the Current Rating
Agencies are conditional upon the furnishing of documents or the taking of any
other action by the Global Trust Manager or the Issuer Trustee, to use its
reasonable best efforts to furnish such documents and take any other such
action or, in the case of the National only, it will use its best efforts to
procure the Global Trust Manager to do so;
(j) it will on behalf of the Issuer Trustee: (i) for the purposes of
128F of the Australian Tax Act, seek a listing of the Notes on [ ] and the
admission of the Notes to trading on the [ ] before the Issuer Trustee issues
any Note, (ii) ensure that the Issuer Trustee will not offer, issue or sell
the Notes to the Underwriters, until the Notes have been listed and have been
authorized for trading on the [ ] or the Representative, on behalf of the
Underwriters, is satisfied that the Notes will be listed after the Closing
Date and (iii) it will use its best efforts to maintain such listing for as
long as any of the Notes are outstanding; provided, however, if such listing
becomes impossible, to use its best efforts to obtain, and will thereafter use
its best efforts to maintain a quotation for, or listing of, the Notes on such
other exchange as is commonly used for the quotation or listing of debt
securities as it may, with the approval of the Representative, decide;
(k) to furnish from time to time copies of the Prospectus and any
and all documents, instruments, information and undertakings (in addition to
any already published or lodged with the [ ]) and publish all advertisements
or other material and to comply with any other requirements of the [ ] that
may be necessary in order to effect and maintain such listing;
(l) to assist the Representative in making arrangements with DTC,
Euroclear and Clearstream, Luxembourg concerning the issue of the Book-Entry
Notes and related matters; and
(m) in the case of the Global Trust Manager only, so long as the
Notes are outstanding, to furnish to the Representative (i) copies of each
certificate, the annual statement of compliance and the annual audit report on
the financial statements of the Trust furnished to the Issuer Trustee or the
Note Trustee by the auditor 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 as
thereafter as practicable, the note factor as of the related Record Date to be
made available to the Representative on Bloomberg, (iv) copies of all reports
or other communications (financial or other) furnished to holders of the Notes
and copies of any reports and financial statements furnished to or filed with
the Commission in connection with the Notes or any national securities
exchange in connection with the Notes, and (v) from time to time such other
information concerning the Trust or the Global Trust Manager as the
Representative may reasonably request.
III. The National covenants and agrees with each of the several
Underwriters and the Issuer Trustee as follows:
12
(a) at the Closing Date, to pay the Representative an underwriting
fee equal to [ ]% of the aggregate initial Invested Amount of the Notes;
provided, however, the Underwriters will rebate to the National Parties an
amount not to exceed [ ]% of such aggregate initial Invested Amount as
reimbursement for certain expenses of issuance of the Notes, but not to exceed
the actual expenses incurred by the National Parties.
(b) whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay, or cause to be paid,
all fees, costs and expenses incident to the performance of the National
Parties' obligations under this Agreement, including, without limiting the
generality of the foregoing, all fees, costs and expenses: (i) incident to the
preparation, issuance, execution, authentication and delivery of the Notes,
including any fees, costs and expenses of the Note Trustee or any transfer
agent, (ii) incident to the preparation, printing and filing under the
Securities Act of the Registration Statement, the Prospectus, Prospectus
Supplement and any preliminary prospectus (including in each case all
exhibits, amendments and supplements thereto), (iii) incurred in connection
with the registration or qualification and determination of eligibility for
investment of the Notes under the laws of such jurisdictions as the
Underwriters may designate (including fees of counsel for the Underwriters and
their disbursements with respect thereto), (iv) in connection with the listing
of the Notes on any stock exchange, (v) in connection with the printing
(including word processing and duplication costs) and delivery of this
Agreement, the Basic Documents, the Preliminary and Supplemental Blue Sky
Memoranda and any Legal Investment Survey and the furnishing to Underwriters
and dealers of copies of the Registration Statement and the Prospectus,
including mailing and shipping, as provided in this Agreement, (vi) the
National Parties' counsel and accountants and the Underwriters' counsel fees
and disbursement that are chargeable to the National, (vii) payable to Current
Rating Agencies in connection with the rating of the Notes and (viii) the
legal fees of counsel for the Underwriters. However, the Underwriters shall be
responsible for any expenses incurred by the National Parties in connection
with any "roadshow" presentation to potential investors;
(c) to the extent, if any, that the ratings provided with respect to
the Notes by the Current Rating Agencies are conditional upon the furnishing
of documents or the taking of any other action by the National, to use its
reasonable best efforts to furnish such documents and take any other such
action; and
(d) in connection with the initial distribution of the [ ] Notes, it
and each person acting on behalf of the National Parties, each of whom has
agreed and covenanted with the Issuer Trustee and the Global Trust Manager,
has not and will not offer for issue, or invite applications for the issue of,
the [ ] Notes or offer the [ ] Notes for sale or invite offers to purchase the
[ ] Notes to a person, where the offer or invitation is received by that
person in Australia, unless the minimum amount payable for the [ ] Notes
(after disregarding any amount lent by any of the National Parties or any
associate (as determined under sections 10 to 17 of the Corporations Act) of
any National Party) on acceptance of the offer by that person is at least
A$500,000 (calculated in accordance with both section 708(a) of the
Corporations Act and Regulation 7.1.18 of the Corporations Regulations 2001
(Cth)) or the offer or invitation does not otherwise require disclosure to
investors in accordance with Part 6D.2 of the Corporations Act and is not made
to a person who is a "retail client" within the meaning of section 761 G of
the Corporations Act.
13
IV. Covenants and Agreements of the Underwriters.
(a) Each Underwriter represents and warrants to and agrees with the
Issuer Trustee and the National Parties that as of the date of this Agreement
and as of the Closing Date, such Underwriter has complied with all of its
obligations under this Agreement, including, without limitation, this Section
5(IV), and, with respect to all Computational Materials and ABS Term Sheets
provided by such Underwriter to the Global Trust Manager pursuant to this
Section 5(IV), if any, such Computational Materials and ABS Term Sheets are
accurate in all material respects (taking into account the assumptions
explicitly set forth in the Computational Materials or ABS Term Sheets),
except to the extent of any errors that are caused by errors in the Pool
Information, and include all assumptions material to their preparation. The
Computational Materials and ABS Term Sheets, if any, provided by such
Underwriter to the Global Trust Manager constitute a complete set of all
Computational Materials and ABS Term Sheets delivered by such Underwriter to
prospective investors that are required to be filed with the Commission.
(b) Each Underwriter may prepare and provide to prospective
investors Computational Materials and ABS Term Sheets in connection with its
offering of the Notes, subject to the following conditions to be satisfied by
such Underwriter:
(i) in connection with the use of Computational Materials, such
Underwriter shall comply with all applicable requirements of
the No-Action Letter of May 20, 1994 issued by the Commission
to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation I, ▇▇▇▇▇▇, Peabody &
Co. Incorporated and ▇▇▇▇▇▇ Structured Asset Corporation, as
made applicable to other issuers and underwriters by the
Commission in response to the request of the Public Securities
Association dated May 24, 1994 (collectively, the "▇▇▇▇▇▇/PSA
Letter"), as well as the PSA Letter referred to below. In
connection with the use of ABS Term Sheets, such Underwriter
shall comply with all applicable requirements of the No-Action
Letter of February 17, 1995 issued by the Commission to the
Public Securities Association (the "PSA Letter" and, together
with the ▇▇▇▇▇▇/PSA Letter, the "No-Action Letters");
(ii) "Computational Materials" has the meaning given in the
No-Action Letters, but shall include only those Computational
Materials that have been prepared or delivered to prospective
investors by or at the direction of any Underwriter. "ABS Term
Sheets" and "Collateral Term Sheets" have the meanings given in
the PSA Letter but shall include only those ABS Term Sheets or
Collateral Term Sheets that have been prepared or delivered to
prospective investors by or at the direction of any
Underwriter;
(iii) (A) All Computational Materials and ABS Term Sheets
provided to prospective investors that are required to be filed
pursuant to the No-Action Letters shall bear a legend on each
page including the following statement:
14
"THE INFORMATION HEREIN HAS BEEN PROVIDED SOLELY BY [NAME
OF [APPLICABLE] UNDERWRITER]. NEITHER THE ISSUER OF THE
NOTES NOR ANY OF ITS AFFILIATES MAKES ANY REPRESENTATION
AS TO THE ACCURACY OR COMPLETENESS OF THE INFORMATION
HEREIN. THE INFORMATION HEREIN IS PRELIMINARY AND WILL BE
SUPERSEDED BY THE APPLICABLE PROSPECTUS AND BY ANY OTHER
INFORMATION SUBSEQUENTLY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION."
(B) In the case of Collateral Term Sheets, such legend
shall also include the following statement:
"THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED BY
THE DESCRIPTION OF THE POOL OF HOUSING LOANS CONTAINED IN
THE PROSPECTUS SUPPLEMENT RELATING TO THE NOTES AND
SUPERSEDES ALL INFORMATION CONTAINED IN ANY COLLATERAL
TERM SHEETS RELATING TO THE POOL OF HOUSING LOANS
PREVIOUSLY PROVIDED BY [NAME OF [APPLICABLE]
UNDERWRITER]."
Upon reasonable notice and in consultation with the [ ],
the Global Trust Manager shall have the right to require
additional specific legends or notations to appear on any
Computational Materials or ABS Term Sheets, the right to
require changes regarding the use of terminology and the
right to determine the types of information appearing
therein. Notwithstanding the foregoing, subsections
(b)(iii)(A) and (b)(iii)(B) will be satisfied if all
Computational Materials and ABS Term Sheets bear a legend
in a form previously approved in writing by the Global
Trust Manager;
(iv) At or prior to the time any such materials are furnished
to the Global Trust Manager for filing on the Form 8-K, the
Underwriter furnishing such materials will provide to the
Global Trust Manager and such other Underwriters a letter, in
form and substance reasonably satisfactory to the Global Trust
Manager, of a firm of independent public accountants of
national reputation to the effect that such accountants have
performed certain specified procedures with respect to such
materials and have found no exceptions, other than such
exceptions as are acceptable to the Global Trust Manager and
the Underwriter.
(v) Such Underwriter shall provide the Global Trust Manager
with representative forms of all Computational Materials and
ABS Term Sheets prior to their first use, to the extent such
forms have not previously been
15
approved by the Global Trust Manager for use by the
Underwriters. Such Underwriter shall provide to the Global
Trust Manager, for filing on Form 8-K, copies (in such format
as reasonably required by the Global Trust Manager) of all
Computational Materials and ABS Term Sheets that are required
to be filed with the Commission pursuant to the No-Action
Letters. Such Underwriter may provide copies of the foregoing
in a consolidated or aggregated form including all information
required to be filed. All Computational Materials and ABS Term
Sheets described in this subsection (b)(v) must be provided to
the Global Trust Manager not later than 10:00 a.m. New York
time one Business Day before filing thereof is required
pursuant to the terms of this Agreement. Such Underwriter
agrees that it will not provide to any investor or prospective
investor in the Notes any Computational Materials or ABS Term
Sheets on or after the day on which Computational Materials and
ABS Term Sheets are required to be provided to the Global Trust
Manager pursuant to this subsection (b)(v) (other than copies
of Computational Materials or ABS Term Sheets previously
submitted to the Global Trust Manager in accordance with this
subsection (b)(v) for filing pursuant to subsection (b)(vii))
unless such Computational Materials or ABS Term Sheets are
preceded or accompanied by the delivery of a Prospectus to such
investor or prospective investor;
(vi) All information included in the Computational Materials
and ABS Term Sheets shall be generated based on substantially
the same methodology and assumptions that are used to generate
the information in the Prospectus Supplement as set forth
therein; provided, however, that the Computational Materials
and ABS Term Sheets may include information based on
alternative methodologies or assumptions if specified therein.
If any Computational Materials or ABS Term Sheets delivered by
such Underwriter that are required to be filed were based on
assumptions with respect to the pool of mortgages to be
securitized that differ from the final information in relation
to the pool of mortgages to be securitized in any material
respect or on note structuring terms that were revised in any
material respect prior to the printing of the Prospectus, such
Underwriter shall prepare revised Computational Materials or
ABS Term Sheets, as the case may be, based on the final
information with respect to the securitized pool of housing
loans and final structuring assumptions, circulate such revised
Computational Materials and ABS Term Sheets to all recipients
of the preliminary versions thereof that indicated orally to
such Underwriter they would purchase all or any portion of the
Offshore Notes, and include such revised Computational
Materials and ABS Term Sheets (marked, "as revised") in the
materials delivered to the Global Trust Manager pursuant to
subsection (b)(v) above;
(vii) The Global Trust Manager shall not be obligated to file
any Computational Materials or ABS Term Sheets that have been
determined to contain any material error or omission, provided
that, at the request of
16
the applicable Underwriter, the Global Trust Manager will file
Computational Materials or ABS Term Sheets that contain a
material error or omission if clearly marked "superseded by
materials dated _________" and accompanied by corrected
Computational Materials or ABS Term Sheets that are marked
"material previously dated , as corrected." In the event that
within the period during which the Prospectus relating to the
Offshore Notes is required to be delivered under the Act, any
Computational Materials or ABS Term Sheets delivered by an
Underwriter are determined, in the reasonable judgment of the
Global Trust Manager or such Underwriter, to contain a material
error or omission, such Underwriter shall prepare a corrected
version of such Computational Materials or ABS Term Sheets,
shall circulate such corrected Computational Materials and ABS
Term Sheets to all recipients of the prior versions thereof
that either indicated orally to such Underwriter they would
purchase all or any portion of the Offshore Notes, or actually
purchased all or any portion thereof, and shall deliver copies
of such corrected Computational Materials and ABS Term Sheets
(marked, "as corrected") to the Global Trust Manager for filing
with the Commission in a subsequent Form 8-K submission
(subject to the Global Trust Manager's obtaining an
accountant's comfort letter in respect of such corrected
Computational Materials and ABS Term Sheets);
(viii) If an Underwriter does not provide any Computational
Materials or ABS Term Sheets to the Global Trust Manager
pursuant to this subsection (b), such Underwriter shall be
deemed to have represented, as of the Closing Date, that it did
not provide any prospective investors with any information in
written or electronic form in connection with the offering of
the Offshore Notes that is required to be filed with the
Commission in accordance with the No-Action Letters;
(ix) In the event of any delay in the delivery by such
Underwriter to the Global Trust Manager of all Computational
Materials and ABS Term Sheets required to be delivered in
accordance with this subsection (b), or in the delivery of the
accountant's comfort letter in respect thereof pursuant to
subsection (b)(iv) or (b)(vi) above the Global Trust Manager
shall have the right to delay the release of the Prospectus to
investors or to the Underwriters, to delay the Closing Date and
to take other appropriate actions, in each case as necessary in
order to allow the Global Trust Manager to comply with its
agreement to file the Computational Materials and ABS Term
Sheets by such specified time;
(x) Each Underwriter represents that it has in place, and
covenants that it shall maintain internal controls and
procedures which it reasonably believes to be sufficient to
ensure full compliance with all applicable legal requirements
of the No-Action Letters with respect to the generation and use
of Computational Materials and ABS Term Sheets in connection
with the offering of the Notes.
17
Each Underwriter represents and warrants that, if and to the extent it
provided any prospective investors with any Computational Materials or ABS
Terms Sheets prior to the date hereof in connection with the offering of the
Notes, all of the conditions set forth in clauses (i) through (ix) above have
been or, to the extent the relevant condition requires action to be taken
after the date hereof, will be, satisfied with respect thereto.
V. Selling Restrictions.
(a) Each Underwriter, severally and not jointly, agrees with the
Issuer Trustee that, within 30 days of the date of this Agreement, it will
have offered the Notes for sale, or invited or induced offers to buy the Notes
by making hard copies of the Prospectus for the Notes available for collection
from that Underwriter in at least its principal office in New York City or
London and, in the case of purchasers in the United States, by sending or
giving copies of the Prospectus to those purchasers.
(b) Each Underwriter agrees that it will not sell Notes to, or
invite or induce offers for the Notes from:
(i) any associate of the Issuer Trustee or a National Party
specified in Schedule 2 or Schedule 3; or
(ii) any other associate from time to time specified in writing
to the Underwriter by the Issuer Trustee or a National Party.
(c) Each Underwriter, severally and not jointly, agrees to:
(i) provide written advice to the Issuer Trustee and the Global
Trust Manager within 40 days of the issue of the Notes
specifying that it has complied with section 5(V)(a); and
(ii) cooperate 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 Australian Tax Act has been satisfied in respect of
the Notes,
provided that no Underwriter shall be obligated to disclose:
(x) the identity of the purchaser of any Note or any
information from which such identity might be capable of being ascertained; or
(y) any information the disclosure of which would be
contrary to or prohibited by any relevant law, regulation or directive.
(d) No prospectus in relation to the Notes has been lodged with, or
registered by, the Australian Securities and Investments Commission or the
Australian Stock Exchange Limited. Accordingly, each of the Underwriters,
severally and not jointly, represents and agrees that it has not offered and
will not offer for issue and has not invited and will not invite
18
applications for the issue of the Notes or offer the Notes for sale or invite
offers to purchase the Notes to a person, where the offer or invitation is
received by that person in Australia.
(e) Each Underwriter (severally and not jointly) agrees that:
(i) it has not offered or sold and, prior to the expiry of a
period of six months from the Closing Date, will not offer or
sell any Notes to persons in the United Kingdom except to
persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of
the Public Offers of Securities Regulations 1995, as amended;
(ii) 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 Financial Services and
Markets Act 2000 (the "FSMA")) received by it in connection
with the issue or sale of any Notes in circumstances in which
Section 21(1) of the FSMA does not apply to the Trust; and
(iii) has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in
relation to the Notes in, from or otherwise involving the
United Kingdom.
(f) Each Underwriter, severally and not jointly, acknowledges that
no action has been taken to permit a public offering of the Notes in any
jurisdiction outside the United States where action would be required for that
purpose. Each Underwriter will comply with all applicable securities laws and
regulations in each jurisdiction in which it purchases, offer, sells or
delivers Notes or has in its possession or distributes the Prospectus or any
other offering material in all cases at its own expense.
VI. Global Trust Manager Direction to Issuer Trustee.
The Global Trust Manager hereby directs the Issuer Trustee to do each of
the things (or, as the case may be, not to do the things) specified in Section
5(I) and the Issuer Trustee acknowledges and accepts that direction.
6. Conditions to the Obligations of the Underwriters. The several
obligations of the Underwriters hereunder are subject to the performance by
the Issuer Trustee and the National Parties of their obligations hereunder and
to the following additional conditions:
(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 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
19
pending before or threatened by the Commission; the Prospectus and the related
Prospectus Supplement shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by
the rules and regulations under the Securities Act;
(b) the representations and warranties of the Issuer Trustee and the
National Parties contained herein are true and correct on and as of the
Closing Date as if made on and as of the Closing Date and the representations
and warranties of the Issuer Trustee and the National Parties in the Basic
Documents will be true and correct on the Closing Date; and the Issuer Trustee
and the National Parties shall have complied with all agreements and all
conditions on the part of each to be performed or satisfied hereunder and
under the Basic Documents at or prior to the Closing Date;
(c) the Representative shall have received letters, dated the date
of delivery thereof, of (i) [ ], substantially in form and substance
satisfactory to the Representative and counsel for the Underwriters,
confirming that they are independent public accountants within the meaning of
the Securities Act and the applicable Rules and Regulations and stating in
effect that they have performed certain specified procedures as a result of
which they determined that certain information of an accounting, financial or
statistical nature set forth in the Registration Statement and the Prospectus
(and any amendments and supplements thereto), agrees with the accounting
records of the National, excluding any questions of legal interpretation, and
(ii) [ ], substantially in form and substance satisfactory to the
Representative and counsel for the Underwriters, stating in effect that they
have performed certain specified procedures with respect to the Mortgage
Loans;
(d) [ ], counsel to the Underwriters, shall have furnished to the
Underwriters their written opinion, dated the Closing Date, with respect to
the Registration Statement, the Prospectus and other related matters as the
Underwriters 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;
(e) Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, United States counsel for the
National Parties, shall have furnished to the Representative their written
opinions, dated the Closing Date, substantially 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) Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, United States federal income tax
counsel for the National Parties, shall have furnished to the Representative
their written opinion, dated the Closing Date, substantially 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) Mallesons ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Australian counsel for the National
Parties, shall have furnished to the Representative their written opinion,
dated the Closing Date, substantially in form and substance satisfactory to
the Representative, and such counsel shall
20
have received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(h) Mallesons ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Australian tax counsel for the
National Parties, shall have furnished to the Representative their written
opinion, dated the Closing Date, substantially in form and substance
satisfactory to the Representative, and such Australian tax counsel shall have
received such papers and information as they may reasonably request to enable
them to pass upon such matters;
(i) [ ], Australian counsel for the Issuer Trustee and the Security
Trustee, shall have furnished to the Representative their written opinion,
dated the Closing Date, substantially 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) [ ], 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) An internal counsel of the National knowledgeable of this
transaction shall have furnished to the Representative his written opinion,
dated the Closing Date, substantially in form and substance satisfactory to
the Representative, and such counsel shall have received such papers and
information as he may reasonably request to enable him to pass upon such
matters;
(l) Counsel to the Interest Rate Swap Provider and Currency Swap
Providers shall have furnished to the Representative their written opinions
dated the Closing Date, substantially 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;
(m) the Representative shall have received a letter or letters from
each counsel delivering any written opinion to any Current Rating Agency in
connection with the transaction described in this Agreement which opinion is
not otherwise described in this Agreement allowing the Representative to rely
on such opinion as if it were addressed to the Representative;
(n) the Representative shall have received copies of letters from
each of the Current Rating Agencies stating that the Notes have been rated AAA
or its equivalent by the Current Rating Agencies;
(o) the Notes shall have been listed on the [ ] and admitted to
trading on the [ ] or such other exchange as the parties shall agree upon or
the Representative shall be satisfied that such listing will be granted after
the Closing Date but in any event, prior to the first Payment Date for the
Notes; and
(p) on or prior to the Closing Date the Issuer Trustee and the
National Parties shall have furnished to the Representative such further
certificates and documents as the Representative shall reasonably request.
21
7. Indemnification and Contribution.
(a) Each of the National Parties agrees jointly and severally to
indemnify and hold harmless each Underwriter, each affiliate of an Underwriter
that assists such Underwriter in the distribution of the Offshore Notes and
each person, if any, that controls any Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages and liabilities
(including, without limitation, the legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted) caused
by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus (as amended or
supplemented if the National Parties shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading;
except:
(i) insofar as any such losses, claims, damages, liabilities,
legal fees and other expenses are caused by any untrue
statement or omission or alleged untrue statement or omission
made (A) in reliance upon and in conformity with information
relating to any Underwriter furnished to a National Party in
writing by such Underwriter expressly for use therein or (B) in
the Prepayment and Yield Information (as defined in the next
paragraph); or
(ii) that such indemnity with respect to the Prospectus shall
not inure to the benefit of any Underwriter (or any person
controlling any Underwriter) from whom the person asserting any
such loss, claim, damage or liability, purchased the Notes
which are the subject hereof, if such person did not receive a
copy of the Prospectus (or the Prospectus as amended or
supplemented) at or prior to the confirmation of the sale of
such Notes to such person, and where such delivery is required
by the Securities Act and the alleged untrue statement
contained in, or omission of a material fact from the
Prospectus was corrected in the Prospectus as amended or
supplemented and such Prospectus, as amended or supplemented,
was delivered to the Underwriters reasonably prior to such
confirmation; or
(iii) to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged
omission made therein relating to any information included in
Computational Materials or ABS Term Sheets, if any, that have
been superseded by revised Computational Materials or ABS Terms
Sheets if such Underwriter (A) has not complied with its
obligation to circulate revised Computational Materials and ABS
Terms Sheets in accordance with Section 5(IV) or (B) has not
delivered them to the Manager no later than one (1) Business
Day after delivery to investors (in the case of (B), to the
extent such loss, claim, damage or liability is
22
attributable to the failure to deliver) provided that the
National Parties shall indemnify each Underwriter to the extent
any misstatement or omission is contained in the Pool
Information (as defined in the next paragraph);
For the purposes of this Agreement, the term "Prepayment and Yield
Information" means that portion of the information in the Prospectus (or the
Prospectus as amended or supplemented) set forth under the sub-heading
"Prepayment and Yield Considerations - Prepayment Rate Model and Modeling
Assumptions" including the prepayment tables included thereunder. "Pool
Information" means the information furnished by magnetic tape, diskette or any
other computer readable format, or in writing to the Underwriters by any
National Party regarding the Mortgage Loans.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Global Trust Manager, its directors, its officers who
sign the Registration Statement, the Issuer Trustee and the National and each
person that controls a National Party or the Issuer Trustee within the meaning
of Section 15 of the Securities Act and Section 20 of the Exchange Act to the
same extent as the foregoing indemnity from the National Parties to each
Underwriter, but only with reference to: (i) information relating to such
Underwriter furnished to the National Parties in writing by such Underwriter
expressly for use in the Registration Statement or the Prospectus, any
amendment or supplement thereto; and (ii) the Computational Materials and ABS
Term Sheets, if any, delivered to investors by such Underwriter, except to the
extent of any errors in the Computational Materials or ABS Term Sheets that
are caused by errors in the Pool Information.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted
against any person in respect of which indemnity may be sought pursuant to
subsection (a) or (b) above, such person (the "Indemnified Person") shall
promptly notify the person against whom such indemnity may be sought (the
"Indemnifying Person") in writing, and the Indemnifying Person, upon request
of the Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees
and expenses of such counsel related to such proceeding.
In any such proceeding, any Indemnified Person shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person unless:
(i) the Indemnifying Person and the Indemnified Person shall
have mutually agreed to the contrary;
(ii) the Indemnifying Person has failed within a reasonable
time to retain counsel reasonably satisfactory to the
Indemnified Person; or
(iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the
same counsel
23
would be inappropriate due to actual or potential differing
interests between them.
It is understood that the Indemnifying Person shall not, in connection
with any proceeding or related proceeding in the same jurisdiction, be liable
for the fees and expenses of more than one separate firm (in addition to any
local counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such separate firm for
the Underwriters, each affiliate of any Underwriter which assists such
Underwriter in the distribution of the Notes and such control persons of
Underwriters shall be designated in writing by the Representative and any such
separate firm for the Global Trust Manager, its directors, its officers who
sign the Registration Statement, the National and the Issuer Trustee and such
control persons of each of the Issuer Trustee and the National Parties shall
be designated in writing by that party.
The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested
an Indemnifying Person to reimburse the Indemnified Person for fees and
expenses of counsel as contemplated by the third sentence of this subsection
(c), the Indemnifying Person agrees that it shall be liable for any settlement
of any proceeding effected without its written consent if:
(i) such settlement is entered into more than 30 days
after receipt by such Indemnifying Person of the aforesaid request; and
(ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of
such settlement.
No Indemnifying Person shall, without the prior written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified
Person, unless such settlement includes an unconditional release of such
Indemnified Person from all liability on claims that are the subject matter of
such proceeding.
(d) If the indemnification provided for in subsection (a) or (b)
above is unavailable to, or insufficient to hold harmless, an Indemnified
Person in respect of any losses, claims, damages or liabilities referred to
therein (or, in the case where such indemnification is insufficient, in
addition to such partial indemnification), then each Indemnifying Person under
such subsection, in lieu of indemnifying such Indemnified Person thereunder,
shall contribute to the amount paid or payable by such Indemnified Person as a
result of such losses, claims, damages or liabilities (i) in such proportion
as is appropriate to reflect the relative benefits received by the National
Parties and the Issuer Trustee on the one hand and the Underwriters on the
other hand from the offering of the Notes or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the National Parties
24
and the Issuer Trustee on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the National Parties and the
Issuer Trustee on the one hand and the Underwriters on the other shall be
deemed to be in the same respective proportions as the net proceeds from the
offering (before deducting expenses) received by the National Parties and the
Issuer Trustee and the total underwriting discounts and the commissions
received by the Underwriters bear to the aggregate public offering price of
the Notes. The relative fault of the National Parties and the Issuer Trustee
on the one hand and the Underwriters on the other 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 a National Party or the
Issuer Trustee or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The National Parties, the Issuer Trustee and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an Indemnified
Person as a result of the losses, claims, damages and liabilities referred to
in this subsection (d) shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses incurred by such Indemnified
Person in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the
underwriting fees received by it with respect to the Notes underwritten by it
and distributed 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 to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amount of Notes set forth opposite their names in
Schedule 1 hereto, and not joint.
The remedies provided for 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.
To the extent that any payment of damages by a National Party pursuant to
subsection (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 provisions in any successor of Prudential Standard APS 120).
(e) The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Issuer Trustee and the
National Parties set forth in this Agreement shall remain operative and in
full force and effect regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of any Underwriter or
25
any person controlling any Underwriter or by or on behalf of the Issuer
Trustee or a National Party, its officers or directors or any other person
controlling the Issuer Trustee or a National Party and (iii) acceptance of and
payment for any of the Notes.
8. Termination. Notwithstanding anything herein contained, this
Agreement may be terminated in the absolute discretion of the Representative,
by notice given to the Issuer Trustee and each National Party, if after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by, as
the case may be, any of the New York Stock Exchange, the London Stock Exchange
or the Australian Stock Exchange, (ii) trading of any securities of or
guaranteed by the Issuer Trustee as trustee of the trust or any National Party
shall have been suspended on any exchange or in any over-the-counter market,
(iii) a general moratorium on commercial banking activities in New York,
Sydney or London shall have been declared by either United States Federal, New
York State, Commonwealth of Australia, Victoria or United Kingdom authorities,
or (iv) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States or Australia of a national emergency or war,
material adverse change in the financial markets of the United States,
Australia, France, Germany or England or other calamity or crisis the effect
of which on financial markets is such as to make it, in the reasonable
judgment of the Representative, impractical to proceed with the offering or
delivery of the Notes as contemplated by the final Prospectus (exclusive of
any supplement thereto).
9. Effectiveness of Agreement; Default of Underwriters. This Agreement
shall become effective upon the later of (x) execution and delivery hereof by
the parties hereto and (y) release of notification of the effectiveness of the
Registration Statement (or, if applicable, any post-effective amendment) by
the Commission.
If on the Closing Date any one or more of the Underwriters shall fail or
refuse to purchase Notes which it or they have agreed to purchase hereunder on
such date, and the aggregate principal amount of Notes which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not
more than one-tenth of the aggregate principal amount of the Notes to be
purchased on such date, the other Underwriters shall be obligated severally in
the proportions that the principal amount of Notes set forth opposite their
respective names in Schedule 1 bears to the aggregate principal amount of
Notes set forth opposite the names of all such non-defaulting Underwriters, or
in such other proportions as the Representative may specify, to purchase the
Notes which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; provided that in no event shall the
principal amount of Notes that any Underwriter has agreed to purchase pursuant
to Section 1 be increased pursuant to this Section 9 by an amount in excess of
one-ninth of such principal amount of Notes without the written consent of
such Underwriter. If on the Closing Date any Underwriter or Underwriters shall
fail or refuse to purchase Notes which it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Notes with
respect to which such default occurs is more than one-tenth of the aggregate
principal amount of Notes to be purchased on such date, and arrangements
satisfactory to the Representative and the Global Trust Manager for the
purchase of such Notes are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the National Parties and the Issuer Trustee. In any such case
either the Representative or the Global Trust Manager shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in
26
order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
10. Expenses Upon Termination. If this Agreement shall be terminated by
the Underwriters, or any of them, because of any failure or refusal on the
part of the Issuer Trustee or a National Party to comply with the terms or to
fulfill any of the conditions of this Agreement, or if for any reason the
Issuer Trustee or a National Party shall be unable to perform its obligations
under this Agreement or any condition of the Underwriters' obligations cannot
be fulfilled, the National Parties jointly and severally agree to reimburse
the Underwriters or such Underwriters as have so terminated this Agreement
with respect to themselves, severally, for all out-of-pocket expenses
(including the fees and expenses of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated
hereunder.
11. Successors. This Agreement shall inure to the benefit of and be
binding upon the National Parties, the Issuer Trustee, the Underwriters, each
affiliate of any Underwriter which assists such Underwriter in the
distribution of the Notes, any controlling persons referred to herein and
their respective successors and assigns. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any other person,
firm or corporation any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. No purchaser of
Notes from any Underwriter shall be deemed to be a successor by reason merely
of such purchase.
12. Actions by Representative; Notice. Any action by the Underwriters
hereunder may be taken by the Representative on behalf of the Underwriters,
and any such action taken by the Representative shall be binding upon the
Underwriters. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to the Underwriters shall
be given to [Name of Underwriter], [Address of Underwriter]. Notices to the
National and the Global Trust Manager shall be given to it at National Global
MBS Manager Pty Ltd, ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇ (Facsimile No.: [ ]; Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇. Notices to the
Issuer Trustee shall be given to it at [Address of Issuer Trustee].
13. Appointments of Process Agent.
(a) Each of the National Parties hereby designates and appoints
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. (the
"National Process Agent"), as its authorized agent, upon whom process may be
served in any legal suit, action or proceeding based on or arising under or in
connection with this Agreement, it being understood that the designation and
appointment of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as such authorized agent shall become
effective immediately without any further action on the part of the each of
the National Parties. Such appointment shall be irrevocable to the extent
permitted by applicable law and subject to the appointment of a successor
agent in the United States on terms substantially similar to those contained
in this Section 13 and reasonably satisfactory to the Representative. If the
National Process Agent shall cease to act as agent for service of process,
each of the National Parties shall
27
appoint, without unreasonable delay, another such agent, and notify the
Representative of such appointment. Each of the National Parties represents to
the Underwriters that it has notified the National Process Agent of such
designation and appointment and that the National Process Agent has accepted
the same in writing. Each of the National Parties hereby authorizes and
directs the National Process Agent to accept such service. Each of the
National Parties further agrees that service of process upon the National
Process Agent and written notice of that service to it shall be deemed in
every respect effective service of process upon it in any such legal suit,
action or proceeding, Nothing in this Section 13 shall affect the right of any
Underwriter or any person controlling any Underwriter to serve process in any
other manner permitted by law.
(b) The Issuer Trustee hereby designates and appoints CT
Corporation, [Address] (the "IT Process Agent"), as its authorized agent, upon
whom process may be served in any legal suit, action or proceeding based on or
arising under or in connection with this Agreement, it being understood that
the designation and appointment of CT Corporation, as such authorized agent
shall become effective immediately without any further action on the part of
the Issuer Trustee. Such appointment shall be irrevocable to the extent
permitted by applicable law and subject to the appointment of a successor
agent in the United States on terms substantially similar to those contained
in this Section 13 and reasonably satisfactory to the Representative. If the
IT Process Agent shall cease to act as agent for service of process, the
Issuer Trustee shall appoint, without unreasonable delay, another such agent,
and notify the Representative of such appointment. The Issuer Trustee
represents to the Underwriters that it has notified the IT Process Agent of
such designation and appointment and that the IT Process Agent has accepted
the same in writing the Issuer Trustee hereby authorizes and directs the IT
Process Agent to accept such service. The Issuer Trustee further agrees that
service of process upon the IT Process Agent and written notice of that
service to it shall be deemed in every respect effective service of process
upon it in any such legal suit, action or proceeding. Nothing in this Section
13 shall affect the right of any Underwriter or any person controlling any
Underwriter to serve process in any other manner permitted by law.
14. Consent to Jurisdiction; Exchange Risk of Payments in Non-U.S.
Currency.
(a) Each of the Parties hereto 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.
(b) The obligation of any of the National 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 National Parties and the Issuer Trustee agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Underwriter against such loss. If the United States dollars so purchased are
more than the sum originally due to such Underwriter, such Underwriter agrees
to indemnify the National Parties and the Issuer Trustee, as applicable, for
such difference.
28
15. Foreign Taxes. All payments to be made by the Issuer Trustee and any
National Party hereunder shall be made without withholding or deduction for or
on account of any present or future taxes, duties or governmental charges,
excluding for the purposes of this Section 15, (i) any taxes which are payable
as a consequence of any Underwriter having a necessary connection with the
relevant taxing jurisdiction and (ii) any income or franchise tax on the
overall net income of such Underwriter imposed by the United States or the
State of New York (all such non-excluded taxes, duties or charges, "Foreign
Taxes"), unless the Issuer Trustee or such National Party, as applicable, is
compelled by law to deduct or withhold such Foreign Taxes. In that event, the
Issuer Trustee or such National 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.
16. Waiver of Immunities. To the extent that any of the Issuer Trustee
and National 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 National Parties, as applicable, each hereby irrevocably and
unconditionally waives, and agrees not to plead or claim, any such immunity
and consents to such relief and enforcement.
17. Judgment Currency. If any judgment or order in any legal proceeding
against any of the Issuer Trustee and the National 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 the 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 National Parties, as
applicable, to the Payee and (b) if positive by the Payee to the Issuer
Trustee and the National Parties, as applicable. The foregoing indemnity shall
constitute a separate and independent obligation of the Issuer Trustee, the
Global 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.
29
18. Certain Matters Relating to the Issuer Trustee.
(a) 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 is limited to and can be enforced
against the Issuer Trustee only to the extent to which it can be satisfied out
of Assets of the Trust out of which the Issuer Trustee is actually indemnified
for the liability. This limitation of the Issuer Trustee's liability applies
despite any other provision of this Agreement (other than section 18(c))
hereof to the contrary 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.
(b) Each Underwriter and each of the National Parties may not ▇▇▇
the Issuer Trustee in any capacity other than as trustee of the Trust
including seeking the appointment of a receiver (except in relation to the
Assets of the Trust), or a liquidator, an administrator or any similar person
to the Issuer Trustee or prove in any liquidation, administration or
arrangements of or affecting the Issuer Trustee (except in relation to the
Assets of the Trust).
(c) The provisions of this section 18 will not apply to any
obligation or liability of the Issuer Trustee to the extent that it is not
satisfied because under the Master Trust Deed, this Agreement or any other
Transaction 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
willful default.
(d) It is acknowledged that the Global Trust Manager, the Servicer,
the Currency Swap Provider, the Interest Rate Swap Provider, the Note Trustee,
the principal Paying Agent, the other Paying Agents and the Agent Bank, (each,
a "Relevant Party") are responsible under the Basic Documents 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 and any
breach of representations and warranties under this Agreement) will be
considered fraudulent, negligent or a willful default for the purpose of
section 18(c) to the extent to which the act or omission was caused or
contributed to by any failure by any Relevant Party (other than any person for
whom the Issuer Trustee is responsible or liable for in accordance with any
Transaction Document) to fulfil its obligations relating to the Trust or by
any other act or omission of a Relevant Party or any other such person.
(e) No attorney, agent, receiver or receiver and manager appointed
in accordance with this Agreement has authority to act on behalf of the Issuer
Trustee in a way that exposes the Issuer Trustee to any liability in excess of
that contemplated in this Section 18, and no act or omission of any such
person will be considered fraud, negligence or willful default of the Issuer
Trustee.
(f) The Issuer Trustee is not obligated to do anything or refrain
from doing anything under or in connection with this Agreement (including
incur a liability) unless the Issuer Trustee's liability is limited in the
same manner as set out in this Section 18.
19. Counterparts, Applicable Law. This Agreement may be signed in
counterparts, each of which shall be an original and all of which together
shall constitute one and the same
30
instrument. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the conflicts
of laws provisions thereof.
31
If the foregoing is in accordance with your understanding, please sign
and return the enclosed counterparts hereof
Very truly yours,
NATIONAL AUSTRALIA BANK LIMITED
By:_________________________________
Name:
Title:
NATIONAL GLOBAL MBS MANAGER PTY LTD
By:_________________________________
Name:
Title:
[ ]
in its capacity as Issuer Trustee
of the [ ] Trust 200[ ]-[ ]
By:_________________________________
Name:
Title:
Accepted:
[ ]
Acting on behalf of itself and the
several Underwriters listed in
Schedule 1 hereto.
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
SCHEDULE 1
----------
Principal Amount of
Notes (US$)
-------------------
1. [ ] $[ ]
2. [ ] $[ ]
3. [ ] $[ ]
Total................................ $
SCHEDULE 2
----------
List of 128F(9) Associates of the Issuer Trustee
[To be completed for transaction]
34
SCHEDULE 3
----------
List of 128F(9) Associates of the National Parties
[To be completed for transaction]
35