U.S. $[______________]
CRUSADE MANAGEMENT LIMITED
CRUSADE GLOBAL TRUST NO. 2 OF 2001
U.S. $[___________] CLASS A MORTGAGE BACKED FLOATING RATE NOTES
UNDERWRITING AGREEMENT
[_________], 2001
Credit Suisse First Boston Corporation
As Representative of the Several Underwriters,
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
1. Introductory. Perpetual Trustees Consolidated Limited (ABN 81 004 029 841), a
limited liability public company under the Corporations Law of Victoria,
Australia in its capacity as trustee of the Crusade Global Trust No. 2 of 2001
(the "ISSUER TRUSTEE") at the direction of Crusade Management Limited (ABN 90
072 715 916), as manager (the "TRUST MANAGER") of Crusade Global Trust No. 2 of
2001 (the "TRUST") proposes to sell to the several Underwriters listed in
Schedule I hereto (the "UNDERWRITERS"), for whom you are acting as
representative (the "REPRESENTATIVE"), U.S.$[____________] principal amount of
Class A Mortgage Backed Floating Rate Notes (the "CLASS A NOTES" or the "NOTES")
issued by the Trust. Each Note will be secured by the assets of the Trust. The
assets of the Trust include, among other things, a pool of variable and fixed
rate residential housing loans (the "HOUSING LOANS") originated or acquired by
▇▇.▇▇▇▇▇▇ Bank Limited (ABN 92 055 513 070) ("▇▇.▇▇▇▇▇▇") including all monies
at any time paid or payable thereon or in respect thereof from, after
[__________], 2001 (the "CUT-OFF DATE") with respect to payments of principal
and after the Closing Date (as defined herein) with respect to payments of
interest, rights under certain insurance policies with respect to the Housing
Loans, the Collection Account and the rights of the Issuer Trustee under the
Basic Documents. The Trust will be created pursuant to the Master Trust Deed,
dated March 14, 1998 (the "MASTER TRUST DEED") and a supplementary terms notice,
to be dated on or about [____________], 2001 (the "SUPPLEMENTARY TERMS NOTICE"),
each among the Issuer Trustee, ▇▇.▇▇▇▇▇▇ and the Trust Manager, which sets forth
specific provisions regarding the Trust and details the provisions of the Notes.
The Note Trust Deed, to be dated on or about [_____________], 2001 (the "NOTE
TRUST DEED") by and among the Issuer Trustee, the Trust Manager and Wilmington
Trust Company (the "NOTE TRUSTEE") provides for the issuance and registration of
the Notes in accordance with the terms and conditions attached thereto.
▇▇.▇▇▇▇▇▇ will act as seller and as
servicer (the "SERVICER") of the Housing Loans. The Trust Manager and ▇▇.▇▇▇▇▇▇
are each a "▇▇.▇▇▇▇▇▇ PARTY" and collectively are referred to herein as the
"▇▇.▇▇▇▇▇▇ PARTIES."
The Trust Manager has prepared and filed with the Securities and
Exchange Commission (the "COMMISSION") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "SECURITIES ACT"), a registration
statement, including a prospectus, relating to the Notes.
When used in this Agreement, "BASIC DOCUMENTS" shall mean each of the
Master Trust Deed, the Supplementary Terms Notice, the Servicing Agreement, the
Notes, the Security Trust Deed, the Note Trust Deed, the Fixed-Floating Rate
Swap, the Currency Swap, the Basis Swap, and the Agency Agreement. To the extent
not defined herein, capitalized terms used herein have the meanings assigned to
such terms in the Prospectus (as defined hereinafter).
In this Agreement, a reference to the Issuer Trustee is a reference to
the Issuer Trustee in its capacity as trustee of the Trust only, and in no other
capacity. Any reference to the assets, business, property or undertaking of the
Issuer Trustee is a reference to the Issuer Trustee in that capacity only.
The ▇▇.▇▇▇▇▇▇ Parties and the Issuer Trustee hereby agree with the
several Underwriters named on Schedule I as follows:
2. Representations and Warranties of the Issuer Trustee and the ▇▇.▇▇▇▇▇▇
Parties.
I. The Issuer Trustee represents and warrants to each Underwriter that:
(a) Since [__________], 2001, there has been no material adverse change or
any development involving a prospective material adverse change in the
condition (financial or otherwise) of the Issuer Trustee, except as
disclosed in the Prospectus, which is material in the context of the Issuer
Trustee performing its obligations and duties under the Notes and each
Basic Document to which it is or is to be a party.
(b) The Issuer Trustee is a corporation duly incorporated and existing
under the laws of Victoria; it is lawfully qualified and holds all
Authorisations (as defined in the Master Trust Deed) necessary to carry on
its business as described in the Prospectus and to issue the Notes and to
act as required by each Basic Document to which it is or is to be a party
and by law to comply with any requirements which affect the operations or
business of the Trust or the Issuer Trustee's obligations under the Basic
Documents to which it is a party and no other thing is required to be done
by the Issuer Trustee (including without limitation the making of any
filing or registration) in order to issue the Notes or to execute and act
as required by each Basic Document to which it is to be a party.
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(c) This Agreement has been duly authorized, executed and delivered by the
Issuer Trustee.
(d) The Notes have been duly authorized, and, when issued, delivered and
paid for pursuant to this (d) Agreement, will have been duly executed,
issued and delivered and will constitute valid and binding obligations of
the Issuer Trustee, entitled to the benefits provided by the Note Trust
Deed and the Security Trust Deed, subject as to enforceability to
applicable bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation or other similar laws affecting the enforcement
of creditors' rights generally and to general equitable principles. Each of
the Basic Documents to which the Issuer Trustee is a party have been duly
authorized by the Issuer Trustee, and, when executed and delivered by the
Issuer Trustee and each of the other parties thereto, will constitute a
legal, valid and binding obligation of the Issuer Trustee, enforceable
against the Issuer Trustee in accordance with its terms, subject as to
enforceability to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation or other similar laws affecting
the enforcement of creditors' rights generally and to general equitable
principles.
(e) The Issuer Trustee is not, nor with the giving of notice or lapse of
time or both would be, in (e) violation of or in default under, (i) its
Constitution or (ii) any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Issuer Trustee is a party or
by which it or any of its properties is bound, except in the case of (ii)
for violations and defaults which individually and in the aggregate would
not have a material adverse effect on the transactions contemplated herein
or in the Basic Documents; the issue and sale of the Notes and the
performance by the Issuer Trustee of all of the provisions of its
obligations under the Notes, the Basic Documents and this Agreement and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, any agreement or instrument to which the
Issuer Trustee is a party or by which the Issuer Trustee is bound or to
which any of the property or assets of the Trust is subject, nor will any
such action result in any violation of the provisions of the Constitution
of the Issuer Trustee or any applicable law or statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Issuer Trustee, or any of its properties; and, to the
knowledge of the Issuer Trustee, no consent, approval, authorization,
order, license, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the Notes
or the consummation by the Issuer Trustee of the transactions contemplated
by this Agreement or the Basic Documents, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as may be
required under state securities or "Blue Sky" laws in connection with the
purchase and distribution of the Notes by the Underwriters.
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(f) Other than as set forth or contemplated in the Prospectus, there are no
legal or governmental (f) investigations, actions, suits or proceedings
pending or, to the knowledge of the Issuer Trustee, threatened against or
affecting the Issuer Trustee or the Trust, or to which the Issuer Trustee
is or may be a party or to which the Issuer Trustee or any property of the
Trust is or may be the subject, which will have an impact on the
transactions contemplated by this Agreement.
(g) The representations and warranties of the Issuer Trustee contained in
the Basic Documents are (g) true and correct in all material respects.
(h) To the Issuer Trustee's knowledge, no event has occurred which would
entitle the Trust Manager to (h) direct the Issuer Trustee to retire as
trustee of the Trust under clause 20 of the Master Trust Deed.
(i) The Issuer Trustee has not taken any corporate action nor (to the best
of its knowledge and (i) belief) have any other steps been taken or legal
proceedings been started or threatened against the Issuer Trustee for its
winding-up, dissolution or reorganization or for the appointment of a
receiver, receiver and manager, administrator, provisional liquidator or
similar officer of it or of any or all of its assets.
(j) Subject to compliance with Section 128F of the Income Tax Assessment
Act (1936) (the "TAX ACT") (j) and compliance by the Underwriters with
Section 10(b) hereto, no stamp or other duty is assessable or payable in,
and no withholding or deduction for any taxes, duties, assessments or
governmental charges of whatever nature is imposed or made for or on
account of any income, registration, transfer or turnover taxes, customs or
other duties or taxes of any kind, levied, collected, withheld or assessed
by or within, the Commonwealth of Australia or any sub-division of or
authority therein or thereof having power to tax in such jurisdiction, in
connection with the authorization, execution or delivery of the agreements
to which the Issuer Trustee is to be a party or with the authorization,
execution, issue, sale or delivery of the Notes and the performance of the
Issuer Trustee's obligations under the Basic Documents, other than, in the
case of stamp duty, following a Title Perfection Event, to which it is to
be a party and payments under the Notes.
(k) The Notes and the obligations of the Issuer Trustee under the Note
Trust Deed will be secured (k) (pursuant to the Security Trust Deed) by a
first floating charge over the assets of the Trust.
(l) No event has occurred or circumstances arisen which, had the Notes
already been issued, would (l) (whether or not with the giving of notice
and/or the passage of time and/or the fulfillment of any other requirement)
constitute an Issuer Trustee's Default (as defined in the Prospectus).
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II. The ▇▇.▇▇▇▇▇▇ parties, jointly and severally, represent and warrant to each
Underwriter and the Issuer Trustee that:
(a) The Trust Manager has filed a registration statement on Form S-11 (No.
333-[___]), including a form of preliminary prospectus, for registration of
the Notes under the Securities Act and has filed such amendments thereto
and will file such additional amendments thereto and such amended
prospectuses as may hereafter be required. Such registration statement in
the form in which it first became effective and as amended or supplemented
thereafter (if applicable) and the prospectus constituting a part thereof
(including all information deemed to be a part thereof pursuant to Rule
430A(b) of the rules and regulations of the Commission under the Securities
Act) as amended or supplemented thereafter (if applicable) under the
Securities Act are herein referred to as the "REGISTRATION STATEMENT" and
the "PROSPECTUS", respectively, except that if any revised prospectus shall
be provided to you for use in connection with the offering of the Notes
which differs from the Prospectus on file with the Commission at the time
the Registration Statement becomes effective (whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b)), the term
"PROSPECTUS" shall refer to such revised prospectus from and after the time
it is first provided to you for such use.
(b) The Registration Statement has been declared effective under the
Securities Act by the Commission. No stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of the
Trust Manager, threatened by the Commission. The Registration Statement and
Prospectus (as amended or supplemented if the Trust Manager shall have
furnished any amendments or supplements thereto) comply, or will comply, as
the case may be, in all material respects with the Securities Act and the
rules and regulations of the Commission thereunder and the Trust Indenture
Act of 1939, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "TRUST INDENTURE ACT") and do not and will
not, as of the applicable effective date as to the Registration Statement
and any amendment thereto and as of the date of the Prospectus and any
amendment or supplement thereto, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and the
Prospectus, as amended or supplemented, if applicable, at the Closing Date
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except that the
foregoing representations and warranties shall not apply to (i) that part
of the Registration Statement which constitutes the Statement of
Eligibility and Qualification (Form T-1) of the Note Trustee under the
Trust Indenture Act, and (ii) statements in or omissions from the
Registration Statement or the Prospectus based upon written information
furnished to the Trust Manager by any Underwriter through the
Representative
5
specifically for use therein, it being understood and agreed that the only
such information is that described as such in Section 7(b).
(c) Except as described in the Prospectus, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has been no material adverse change, nor any development
involving a prospective material adverse change, in the condition
(financial or other), business, properties, stockholders' equity or results
of operations of any ▇▇.▇▇▇▇▇▇ Party taken as a whole.
(d) Each ▇▇.▇▇▇▇▇▇ Party is a corporation duly incorporated and validly
existing under the Corporations Law of the Commonwealth of Australia; each
St. ▇▇▇▇▇▇ Party has the power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus and
to enter into and perform its obligations under this Agreement and the
Basic Documents to which it is a party and carry out the transactions
contemplated by such Basic Documents; each ▇▇.▇▇▇▇▇▇ Party has been duly
qualified or licensed for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification or licensing, other than where the failure to be so qualified
or licensed or in good standing would not have a material adverse effect on
the transactions contemplated herein or in the Basic Documents.
(e) This Agreement has been duly authorized, executed and delivered by each
of the ▇▇.▇▇▇▇▇▇ Parties.
(f) The Basic Documents to which any ▇▇.▇▇▇▇▇▇ party is a party have been
duly authorized by the applicable ▇▇.▇▇▇▇▇▇ Party, and upon effectiveness
of the Registration Statement, the Note Trust Deed will have been duly
qualified under the Trust Indenture Act and, when executed and delivered by
each ▇▇.▇▇▇▇▇▇ Party which is a party thereto and each of the other parties
thereto, each of the Basic Documents to which any ▇▇.▇▇▇▇▇▇ Party is a
party will constitute a legal, valid and binding obligation of each such
▇▇.▇▇▇▇▇▇ Party, enforceable against each such ▇▇.▇▇▇▇▇▇ Party in
accordance with its terms, subject as to enforceability to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation or other similar laws affecting the enforcement of creditors'
rights generally and to general equitable principles; and the Notes and the
Basic Documents each will conform to the descriptions thereof in the
Prospectus.
(g) Neither ▇▇.▇▇▇▇▇▇ Party is, nor with the giving of notice, or lapse of
time or both would be, in violation of or in default under, (i) its
Constitution or (ii) any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which it is a party or by which it or
any of its properties is bound, except in the case of (ii) for violations
and defaults which individually and in the aggregate would not have a
material adverse effect on the transactions contemplated herein or in the
Basic Documents; the issue and sale of the Notes
6
and the performance by each ▇▇.▇▇▇▇▇▇ Party of all of the provisions of its
obligations under the Notes, the Basic Documents and this Agreement and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which either St. ▇▇▇▇▇▇ Party
is a party or by which either St. ▇▇▇▇▇▇ Party is bound or to which any of
the property or assets of either St. ▇▇▇▇▇▇ Party is subject, nor will any
such action result in any violation of the provisions of the Constitution
of either St. ▇▇▇▇▇▇ Party or any applicable law or statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over either ▇▇.▇▇▇▇▇▇ Party, or any of its properties; and no
consent, approval, authorization, order, license, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Notes or the consummation by either
▇▇.▇▇▇▇▇▇ Party of the transactions contemplated by this Agreement or the
Basic Documents, except such consents, approvals, authorizations, orders,
licenses, registrations or qualifications as have been obtained under the
Securities Act, the Trust Indenture Act and as may be required under state
securities or "Blue Sky" laws in connection with the purchase and
distribution of the Notes by the Underwriters.
(h) Except as disclosed in the Prospectus, there are no legal or
governmental investigations, actions, suits or proceedings pending or, to
the knowledge of either St. ▇▇▇▇▇▇ Party, threatened against or affecting
either St. ▇▇▇▇▇▇ Party or its properties or, to which either St. ▇▇▇▇▇▇
Party is or may be a party or to which either St. ▇▇▇▇▇▇ Party or any
property of either St. ▇▇▇▇▇▇ Party is or may be the subject, in each case,
which will have an impact on the transactions contemplated by this
Agreement; and there are no statutes, regulations, contracts or other
documents that are required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration Statement or the
Prospectus which are not filed or described as required.
(i) The representations and warranties of each St. ▇▇▇▇▇▇ Party contained
in the Basic Documents are true and correct in all material respects.
(j) KPMG are independent public accountants with respect to each St. ▇▇▇▇▇▇
Party within the meaning of the standards established by the American
Institute of Certified Public Accountants.
(k) Each St. ▇▇▇▇▇▇ Party owns, possesses or has obtained all
Authorisations (as defined in the Master Trust Deed), licenses, permits,
certificates, consents, orders, approvals and other authorizations from,
and has made all declarations and filings with, all federal, state, local
and other governmental authorities (including foreign regulatory agencies),
all self-regulatory organizations and all courts and other tribunals,
domestic or foreign, necessary to perform its obligations under this
Agreement and the Basic Documents, and neither St. ▇▇▇▇▇▇ Party has
7
received any actual notice of any proceeding relating to revocation or
modification of any such Authorisation, license, permit, certificate,
consent, order, approval or other authorization; and each ▇▇.▇▇▇▇▇▇ Party
is in compliance with all laws and regulations necessary for the
performance of its obligations under this Agreement and the Basic
Documents.
(l) To the knowledge of any ▇▇.▇▇▇▇▇▇ Party, no event has occurred which
would entitle either ▇▇.▇▇▇▇▇▇ Party to direct the Issuer Trustee to retire
as trustee of the Trust under clause 20 of the Master Trust Deed.
(m) Neither St. ▇▇▇▇▇▇ Party has taken any corporate action nor (to the
best of its knowledge and belief) have any other steps been taken or legal
proceedings been started or threatened against either St. ▇▇▇▇▇▇ Party for
its winding-up, dissolution or reorganization or for the appointment of a
receiver, receiver and manager, administrator, provisional liquidator or
similar officer of it or of any or all of its assets.
(n) Subject to compliance with Section 128F of the Tax Act, no stamp or
other duty is assessable or payable in, and no withholding or deduction for
any taxes, duties, assessments or governmental charges of whatever nature
is imposed or made for or on account of any income, registration, transfer
or turnover taxes, customs or other duties or taxes of any kind, levied,
collected, withheld or assessed by or within, the Commonwealth of Australia
or any sub-division of or authority therein or thereof having power to tax
in such jurisdiction, in connection with the authorization, execution or
delivery of the agreements to which it is to be a party or with the
authorization, execution, issue, sale or delivery of the Notes and the
performance of either ▇▇.▇▇▇▇▇▇ Parties' obligations under the agreements
to which it is to be a party and the Notes.
(o) No event has occurred or circumstances arisen which, had the Notes
already been issued, would (whether or not with the giving of notice and/or
the passage of time and/or the fulfillment of any other requirement)
constitute a Manager's Default (as defined in the Prospectus).
(p) Since [__________], 2001 there has been no material adverse change or
any development involving a prospective material adverse change in the
condition (financial or otherwise) of either of the ▇▇.▇▇▇▇▇▇ Parties; and
(q) As of the Closing Date, ▇▇.▇▇▇▇▇▇ will have transferred to the Issuer
Trustee a valid equitable assignment of each related Housing Loan offered
for sale by it to the Issuer Trustee.
3. Purchase, Sale and Delivery of Notes. On the basis of the representations,
warranties and agreements contained herein, but subject to the terms and
conditions herein set forth, the Issuer Trustee, at the direction of the Trust
Manager, agrees to sell the Notes to the Underwriters, and the Underwriters
agree, severally and not jointly, to purchase from the
8
Issuer Trustee at a purchase price of [___]% of the principal amount of the
Class A Notes (which amount shall be net of the commissions payable to the
Underwriters) the respective principal amount of the Notes set forth opposite
the names of the Underwriters in Schedule A hereto.
The Issuer Trustee will deliver against payment of the purchase price
the Notes in the form of one or more permanent Global Notes in definitive form
(the "GLOBAL NOTES") deposited with the Note Trustee as custodian for The
Depository Trust Company (the "DTC") and registered in the name of Cede & Co.,
as nominee for DTC. Interests in any permanent Global Notes will be held only in
book-entry form through DTC, except in the limited circumstances described in
the Prospectus. Payment for the Notes shall be made by the Underwriters in
Federal (same day) funds by official bank check or checks or wire transfer to an
account at a bank acceptable to Credit Suisse First Boston Corporation ("CSFBC")
drawn to the order of the Currency Swap Provider at the office of ▇▇▇▇▇, ▇▇▇▇▇ &
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ not later than 10:00 A.M., New
York City time, on [_______________], 2001, or at such other time not later than
seven full business days thereafter as CSFBC and the Trust Manager determine,
such time being herein referred to as the "CLOSING DATE," against delivery to
the Note Trustee as custodian for DTC of the Global Notes representing all of
the Notes. The Global Notes will be made available for checking at the above
office at least 24 hours prior to the Closing Date.
4. Offering by Underwriters. The ▇▇.▇▇▇▇▇▇ Parties and the Issuer Trustee
understand that the several Underwriters propose to offer the Notes for sale to
the public as set forth in the Prospectus.
5. Certain Agreements of the Issuer Trustee and the ▇▇.▇▇▇▇▇▇ Parties.
I. The ▇▇.▇▇▇▇▇▇ Parties, jointly and severally, covenant and agree with each of
the several Underwriters as follows:
(a) The Trust Manager will file with the Commission pursuant to and in
accordance with Rule 430A and subparagraph (4) of Rule 424(b) copies of an
amended Prospectus containing all of the information omitted from the
Prospectus in reliance upon Rule 430A at the time the Registration
Statement became effective. The Trust Manager will advise the
Representative promptly of any such filing pursuant to Rule 424(b).
(b) The Trust Manager will advise the Representative promptly of any
proposal to amend or supplement the Registration Statement as filed or the
related Prospectus and will not effect such amendment or supplementation
without the Representative's consent; and the Trust Manager will also
advise the Representative promptly of the institution by the Commission of
any stop order proceedings in respect of the Registration Statement and
will use its best efforts to prevent the issuance of any such stop order
and to obtain as soon as possible its lifting, if issued.
9
(c) If, at any time when a prospectus relating to the Notes is required to
be delivered under the (c) Securities Act in connection with sales by any
Underwriter or dealer, any event occurs as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Securities Act, the Trust Manager will
promptly notify the Representative of such event and will promptly prepare
and file with the Commission, at its own expense, an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance. Neither the Representative's consent to,
nor the Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, the Trust Manager will make generally available
to its securityholders an (d) earnings statement covering a period of at
least 12 months beginning after the effective date of the Registration
Statement which will satisfy the provisions of Section 11(a) of the
Securities Act.
(e) The Trust Manager will furnish to the Representative copies of each
Registration Statement (3 of (e) which will be signed and will include all
exhibits), each related preliminary prospectus, and, so long as a
prospectus relating to the Notes is required to be delivered under the
Securities Act in connection with sales by any Underwriter or dealer, the
Prospectus and all amendments and supplements to such documents, in each
case in such reasonable quantities as CSFBC requests. The Prospectus shall
be so furnished on or prior to 3:00 P.M., New York time, on the business
day following the later of the execution and delivery of this Agreement or
the effective time of the Registration Statement. All other documents shall
be so furnished as soon as available. The Trust Manager will pay the
expenses of printing and distributing to the Underwriters all such
documents.
(hf The Trust Manager will arrange for the qualification of the Notes for
sale and the determination (f) of their eligibility for investment under
the laws of such jurisdictions as CSFBC designates and will continue such
qualifications in effect so long as required for the distribution.
(g) So long as the Notes are outstanding, the Trust Manager will furnish to
the Representative (i) (g) copies of each certificate, the annual
statements of compliance and the annual independent certified public
accountant's audit report on the financial statements furnished to the
Issuer Trustee or the Note Trustee pursuant to the Basic Documents by first
class mail as soon as practicable after such statements and reports are
furnished to the Issuer Trustee or the Note Trustee, (ii) copies of each
amendment to any of the Basic Documents, (iii) on each Determination Date
or as soon thereafter as practicable, the Bond Factor as of the related
Record Date shall be available to the Representative on Bloomberg and
10
Reuters, (iv) copies of all reports or other communications (financial or
other) furnished to holders of the Notes, and copies of any reports and
financial statements furnished to or filed with the Commission, any
governmental or regulatory authority or any national securities exchange,
and (v) from time to time such other information concerning the Trust or
the Trust Manager as the Representative may reasonably request.
(h) To the extent, if any, that the ratings provided with respect to the
Notes by the Rating Agencies are conditional upon the furnishing of
documents or the taking of any other action by the Trust Manager, the Trust
Manager shall use its best efforts to furnish such documents and take any
other such action.
(i) The Trust Manager will assist the Representative in making arrangements
with DTC, Euroclear and Clearstream, Luxembourg concerning the issue of the
Notes and related matters.
(j) The Trust Manager will not take, or cause to be taken, any action and
will not knowingly permit any action to be taken which it knows or has
reason to believe would result in the Notes not being assigned the ratings
referred to in Section 6(n) below.
(k) ▇▇.▇▇▇▇▇▇ will pay all expenses incident to the performance of the
▇▇.▇▇▇▇▇▇ Parties' obligations under this Agreement, for any filing fees
and other expenses (including fees and disbursements of underwriters'
counsel and issuers' counsel) incurred in connection with qualification of
the Notes for sale under the laws of such jurisdictions as CSFBC designates
and the printing of memoranda relating thereto, for any fees charged by the
independent accountants, for any fees charged by the rating agencies for
the rating of the Notes, for any travel expenses of any of the ▇▇.▇▇▇▇▇▇
Parties' officers and employees and any other expenses of either ▇▇.▇▇▇▇▇▇
Party in connection with attending or hosting meetings with prospective
purchasers of the Notes and for expenses incurred in distributing
preliminary prospectuses and the Prospectus (including any amendments and
supplements thereto) to the Underwriters.
(l) ▇▇.▇▇▇▇▇▇ Bank will indemnify and hold harmless the Underwriters
against any documentary, stamp or similar issue tax, including any interest
and penalties, on the creation, issue and sale of the Notes and on the
execution and delivery of this Agreement. All payments to be made by the
Issuer Trustee and the ▇▇.▇▇▇▇▇▇ Parties hereunder shall be made without
withholding or deduction for or on account of any present or future taxes,
duties or governmental charges whatsoever unless the Trust Manager is
compelled by law to deduct or withhold such taxes, duties or charges. In
that event, the Trust Manager shall pay such additional amounts as may be
necessary in order that the net amounts received after such withholding or
deduction shall equal the amounts that would have been received if no
withholding or deduction had been made.
11
(m) Neither ▇▇.▇▇▇▇▇▇ Party will offer, sell, contract to sell, pledge or
otherwise dispose of, (m) directly or indirectly, or file with the
Commission a registration statement under the Securities Act relating to
asset-backed securities, or publicly disclose the intention to make any
such offer, sale, pledge, disposition or filing, without the prior written
consent of the Representative for a period beginning at the date of this
Agreement and ending at the later of the Closing Date or the lifting of
trading restrictions by the Representative.
II. The Issuer Trustee covenants and agrees with each of the several
Underwriters as follows:
(a) The Issuer Trustee will use the net proceeds received by the Issuer
Trustee from the sale of the Notes pursuant to this Agreement in the manner
specified in the Prospectus under the caption "Use of Proceeds".
(b) The Issuer Trustee will pay any stamp duty or other issue, transaction,
value added or similar tax, fee or duty (including court fees) in relation
to the execution of, or any transaction carried out pursuant to, the Basic
Documents or in connection with the issue and distribution of the Notes or
the enforcement or delivery of this Agreement.
(c) The Issuer Trustee will use all reasonable efforts to procure
satisfaction on or before the Closing Date of the conditions referred to in
Section 6 below and, in particular (i) the Issuer Trustee shall execute
those of the Basic Documents required to be executed by the Issuer Trustee
not executed on the date hereof on or before the Closing Date, and (ii) the
Issuer Trustee will assist the Representative to make arrangements with
DTC, Euroclear and Clearstream, Luxembourg concerning the issue of the
Notes and related matters.
(d) The Issuer Trustee will procure or cause to be procured that the
charges created by or contained in the Security Trust Deed are registered
within all applicable time limits in all appropriate registers.
(e) The Issuer Trustee will perform all its obligations under, and subject
to, each of the Basic Documents to which it is a party which are required
to be performed prior to or simultaneously with closing on the Closing
Date.
(f) The Issuer Trustee will not take, or cause to be taken, any action and
will not knowingly permit any action to be taken which it knows or has
reason to believe would result in the Notes not being assigned the ratings
referred to in Section 6(n) below.
(g) The Issuer Trustee will not prior to or on the Closing Date amend the
terms of any Basic Document to which it is a party nor execute any of the
Basic Documents to which it is a party other than in the agreed form
without the consent of the Representative.
12
6. Conditions of the Obligations of the Underwriters. The obligations of the
several Underwriters to purchase and pay for the Notes on the Closing Date will
be subject to the accuracy of the representations and warranties on the part of
the ▇▇.▇▇▇▇▇▇ Parties and the Issuer Trustee herein, to the accuracy of the
statements of officers of the ▇▇.▇▇▇▇▇▇ Parties and the Issuer Trustee made
pursuant to the provisions hereof, to the performance of the ▇▇.▇▇▇▇▇▇ Parties
and the Issuer Trustee of their obligations hereunder and to the following
additional conditions precedent:
(a) The Registration Statement shall have become effective, or if a
post-effective amendment is required to be filed under the Securities Act,
such post-effective amendment shall have become effective, not later than
5:00 P.M., New York City time, on the date hereof or on such later date to
which you have consented; and no stop order suspending the effectiveness of
the Registration Statement or any post-effective amendment shall be in
effect, and no proceedings for such purpose shall be pending before or
threatened by the Commission. The Prospectus, including all price-related
information previously omitted from the prospectus which formed a part of
the Registration Statement at the time it became effective, in accordance
with Rule 430A, shall have been transmitted to the Commission for filing
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Securities Act and in
accordance with Section 5.1.(a) hereof; and prior to the Closing Date the
Trust Manager shall have provided evidence satisfactory to the
Representative of such timely filing, and all requests for additional
information shall have been complied with to the satisfaction of the
Representative.
(b) Subsequent to the execution and delivery of this Agreement, there shall
not have occurred (i) any change, or any development or event involving a
prospective change, in the condition (financial or other), business,
properties or results of operations of any of the ▇▇.▇▇▇▇▇▇ Parties, the
Issuer Trustee or any Swap Party and their respective subsidiaries, in each
case, taken as one enterprise, which, in the judgment of a majority in
interest of the Underwriters including the Representative, is material and
adverse and makes it impractical or inadvisable to proceed with completion
of the public offering or the sale of and payment for the Notes; (ii) any
downgrading in the rating of any debt securities of any of the Trust
Manager, ▇▇.▇▇▇▇▇▇, the Issuer Trustee or any Swap Party by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Securities Act), or any public announcement that any
such organization has under surveillance or review its rating of the Notes
or any debt securities of any of the Trust Manager, ▇▇.▇▇▇▇▇▇, the Issuer
Trustee or any Swap Party (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any material suspension or material
limitation of trading in securities generally on the New York Stock
Exchange, the London Stock Exchange or any other exchange on which the
Notes are listed, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of any of the
Trust
13
Manager, ▇▇.▇▇▇▇▇▇, the Issuer Trustee or any Swap Party on any exchange or
in the over-the-counter market; (iv) any banking moratorium declared by
U.S. Federal, New York, London, England or Australia authorities; or (v)
any outbreak or escalation of major hostilities in which the United States,
London, England or Australia is involved, any declaration of war by
Congress or any other substantial national or international calamity or
emergency if, in the judgment of a majority in interest of the Underwriters
including the Representative, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment
for the Notes.
(c) The Representative shall have received a certificate, dated such
Closing Date, of the managing director, director or any chief general
manager of each ▇▇.▇▇▇▇▇▇ Party and (as to paragraphs (i) and (ii) below
only) of an authorized officer of the Issuer Trustee in which such
officers, to the best of their knowledge after reasonable investigation,
shall state that: (i) the representations and warranties of such entity in
this Agreement are true and correct; (ii) such entity has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to such Closing Date; (iii) in the case of
the Trust Manager, no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that purpose
have been instituted or are contemplated by the Commission; and (iv)
subsequent to the date of the most recent financial statements supplied by
the ▇▇.▇▇▇▇▇▇ Parties to the Underwriters or the Representative on behalf
of the Underwriters, there has been no material adverse change, nor any
development or event involving a prospective material adverse change, in
the condition (financial or other), business, properties or results of
operations of such entity and its subsidiaries taken as a whole except as
set forth in or contemplated by the Prospectus or as described in such
certificate.
(d) Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Australian counsel for ▇▇.▇▇▇▇▇▇, the Trust
Manager and the Servicer, shall have furnished to the Representative their
written opinion, dated the Closing Date, in form and substance satisfactory
to the Representative, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters, a copy of which opinion is attached hereto as Exhibit A.
(e) Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Australian tax counsel for ▇▇.▇▇▇▇▇▇, the Trust
Manager and the Servicer, shall have furnished to the Representative their
written opinion, dated the Closing Date, in form and substance satisfactory
to the Representative, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters, a copy of which opinion is attached hereto as Exhibit B.
(f) The Representative shall have received two letters, one dated the date
hereof and one dated the Closing Date, of KPMG confirming that they are
14
independent public accountants within the standards established by the
American Institute of Certified Public Accountants and stating to the
effect that they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information contained
in the Registration Statement (in each case to the extent that such dollar
amounts, percentages and other financial information are derived from the
general accounting records of the ▇▇.▇▇▇▇▇▇ Parties and their subsidiaries
subject to the internal controls of such parties' accounting system or are
derived directly from such records by analysis or computation or from the
collateral tape containing the description of the Housing Loans) with the
results obtained from inquiries, a reading of such general accounting
records and collateral tape and other procedures specified in such letter
and have found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as otherwise
specified in such letter.
(g) ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇, United States counsel for the ▇▇.▇▇▇▇▇▇ Parties
and the Issuer Trustee, shall have furnished to the Representative their
written opinion, dated the Closing Date, in form and substance satisfactory
to the Representative, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters, to the effect that:
(1) The Note Trust Deed has been duly qualified under the Trust
Indenture Act;
(2) To such counsel's knowledge, there are no material contracts,
indentures, or other documents of a character required to be described
or referred to under either the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto;
(3) The Trust is not and, after giving effect to the offering and sale
of the Notes and the application of the proceeds thereof as described
in the Prospectus, will not be an "investment company" as defined in
the Investment Company Act of 1940;
(4) No consent, approval, authorization or order of, or filing with,
any governmental agency located in the United States or body or any
court located in the United States is required for the consummation of
the transactions contemplated by this Agreement in connection with the
issuance or sale of the Notes by the Issuer Trustee, except such as
have been obtained and made under the Securities Act and the Trust
Indenture Act and such as may be required under state securities laws;
15
(5) The Registration Statement was filed and was declared effective
under the Securities Act as of the date and time specified in such
opinion, the Prospectus either was filed with the Commission pursuant
to subparagraph (4) of Rule 424(b) on the date specified therein, and,
to the best of the knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement or any part thereof
has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Securities Act,
and each Registration Statement and the Prospectus, and each amendment
or supplement thereto, as of their respective effective or issue
dates, complied as to form in all material respects with the
requirements of the Securities Act, the Trust Indenture Act and the
Rules and Regulations; such counsel have no reason to believe that any
part of the Registration Statement or any amendment thereto, as of its
effective date or as of such Closing Date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus or any amendment or
supplement thereto, as of its issue date or as of such Closing Date,
contained any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; the descriptions in the Registration Statement and
Prospectus of statutes, legal and governmental proceedings are
accurate and fairly present the information required to be shown: it
being understood that such counsel need express no opinion as to the
financial statements or other financial data contained in the
Registration Statement or the Prospectus;
(6) The statements in the Prospectus under the Captions "Description
of the Class A Notes" and "Description of the Transaction Documents",
insofar as they purport to summarize certain terms of the Notes and
the applicable Basic Documents, constitute a fair summary of the
provisions purported to be summarized; and
(7) This Agreement represents a legal valid and binding obligation of
each of ▇▇.▇▇▇▇▇▇, the Trust Manager and the Issuer Trustee.
(h) ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇, United States federal income tax counsel for the
▇▇.▇▇▇▇▇▇ Parties and the Issuer Trustee, shall have furnished to the
Representative their written opinion, dated the Closing Date, in form and
substance satisfactory to the Representative, a copy of which opinion is
attached hereto as Exhibit C.
(i) Mallesons ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, counsel for the Issuer Trustee, shall have
furnished to the Representative their written opinion, dated the Closing
Date, in form and substance satisfactory to the Representative, and such
counsel shall have received such papers and information as they may
reasonably request to enable
16
them to pass upon such matters, a copy of which opinion is attached hereto
as Exhibit D.
(j) White & Case LLP, counsel for the Note Trustee, shall have furnished to
the Representative their written opinion, dated the Closing Date, in form
and substance satisfactory to the Representative, and such counsel shall
have received such papers and information as they may reasonably request to
enable them to pass upon such matters, a copy of which is attached hereto
as Exhibit E.
(k) Counsel to the Fixed-Floating Rate Swap Provider, the Standby
Fixed-Floating Rate Swap Provider, the Basis Swap Provider, the Standby
Basis Swap Provider and the Currency Swap Provider shall have furnished to
the Representative and the ▇▇.▇▇▇▇▇▇ Parties their written opinion in form
and substance satisfactory to the Representative, copies of which opinions
will be attached hereto as Exhibit F.
(l) The Representative shall have received a letter or letters from each
counsel delivering any written opinion to any Rating Agency in connection
with the transaction described herein which is not otherwise described in
this Agreement allowing the Representative to rely on such opinion as if it
were addressed to the Representative.
(m) At the Closing Date, the Class A Notes shall have been rated "AAA" by
Standard & Poor's Ratings Group, A Division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc. ("Standard and Poors") and Fitch Inc. ("Fitch") and "Aaa" by ▇▇▇▇▇'▇
Investors Service, Inc. ("Moody's" and together with Standard and Poor's
and Fitch, the "Rating Agencies") as evidenced by letters from the Rating
Agencies.
(n) The execution and delivery by all parties thereto of the Basic
Documents on or prior to the Closing Date.
(o) On or prior to the Closing Date the ▇▇.▇▇▇▇▇▇ Parties and the Issuer
Trustee shall have furnished to the Representative such further
certificates and documents as the Representative shall reasonably request.
7. Indemnification and Contribution.
(a) Each of St. ▇▇▇▇▇▇ and the Trust Manager, jointly and severally, agrees
to indemnify and hold harmless each Underwriter and the Issuer Trustee, its
partners, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act, against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter or the Issuer Trustee may become subject, under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material fact contained
in any Registration Statement or arise out of or are based upon the
omission or alleged omission to state
17
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading or (ii) any untrue statement or
alleged untrue statement of any material fact contained in the Prospectus,
or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter or the Issuer Trustee in connection with investigating or
defending any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that neither ▇▇.▇▇▇▇▇▇ nor the
Trust Manager will be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to ▇▇.▇▇▇▇▇▇ or the Trust Manager by (i) any
Underwriter through the Representative specifically for use therein, it
being understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in subsection (b)
below or (ii) Credit Suisse First Boston Corporation for inclusion in the
Prospectus under the heading "Description of the Class A Notes--The
Interest Rate Swaps--Standby Swap Provider" and "Description of the Class A
Notes--The Currency Swap--DLJ International Capital and Credit Suisse First
Boston (USA), Inc."; and provided, further, that with respect to any untrue
statement or alleged untrue statement in or omission or alleged omission
from any preliminary prospectus the indemnity agreement contained in this
paragraph (a) shall not inure to the benefit of any Underwriter from whom
the person asserting any such losses, claims, damages or liabilities
purchased the Notes concerned, to the extent that a prospectus relating to
such Notes was required to be delivered by such Underwriter under the
Securities Act in connection with such purchase and any such loss, claim,
damage or liability of such Underwriter results from the fact that there
was not sent or given to such person, at or prior to the written
confirmation of the sale of such Notes to such person, a copy of the
Prospectus if the Trust Manager had previously furnished copies thereof to
such Underwriter.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless ▇▇.▇▇▇▇▇▇, the Issuer Trustee and the Trust Manager, its partners,
its directors and officers and each person, if any, who controls such
company within the meaning of Section 15 of the Securities Act, against any
losses, claims, damages or liabilities to which such company may become
subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon (i) any untrue statement or alleged untrue statement of
any material fact contained in any Registration Statement or arise out of
or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading or (ii) any untrue statement or alleged
untrue statement of any material fact contained in the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact
18
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Trust Manager
by such Underwriter through the Representative specifically for use therein, and
will reimburse any legal or other expenses reasonably incurred by ▇▇.▇▇▇▇▇▇, the
Issuer Trustee or the Trust Manager in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by any Underwriter consists of the following information in the
Prospectus furnished on behalf of each Underwriter: (i) the concession and
reallowance figures appearing in the [third paragraph] under the caption "Plan
of Distribution" and (ii) the information contained in the [fifth and seventh
paragraphs] under the caption "Plan of Distribution".
(c) Promptly after receipt by an indemnified party under this Section (c) of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement (i) includes an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or on behalf of an
indemnified party.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the ▇▇.▇▇▇▇▇▇
Parties and the Issuer Trustee on the one hand and the
19
Underwriters on the other from the offering of the Notes or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the ▇▇.▇▇▇▇▇▇
Parties and the Issuer Trustee on the one hand and the Underwriters on the other
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the ▇▇.▇▇▇▇▇▇ Parties and the
Issuer Trustee on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the ▇▇.▇▇▇▇▇▇ Parties and the Issuer Trustee
bear to the total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the ▇▇.▇▇▇▇▇▇ Parties and the Issuer Trustee or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). In addition, nothing in this
Section 7 shall require St. ▇▇▇▇▇▇ to indemnify and hold harmless CSFBC from any
losses, claims, damages or liabilities arising out of or based on information
contained in or omitted from the information set forth in the Prospectus under
the heading "Description of the Class A Notes--The Interest Rate Swaps--Standby
Swap Provider" and "Description of the Class A Notes--The Currency Swap--DLJ
International Capital and Credit Suisse First Boston (USA), Inc."
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Notes underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the ▇▇.▇▇▇▇▇▇ Parties and the Issuer Trustee under this
Section shall be in addition to any liability which the ▇▇.▇▇▇▇▇▇ Parties and
the Issuer Trustee may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Securities Act; and the obligations of the Underwriters under
this Section shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each director of the ▇▇.▇▇▇▇▇▇ Parties or the Issuer Trustee, to
each officer of the ▇▇.▇▇▇▇▇▇ Parties or the Issuer Trustee who has signed the
20
Registration Statement and to each person, if any, who controls the ▇▇.▇▇▇▇▇▇
Parties or the Issuer Trustee within the meaning of the Securities Act.
(f) To the extent that any payment of damages by ▇▇.▇▇▇▇▇▇ Bank pursuant to
subsection 7(a) above is determined to be a payment of damages pursuant to
"Funds Management and Securitisation Prudential Statement C2" such payment shall
be subject to the terms of Section 89 therein.
8. Default of Underwriters. If any Underwriter or Underwriters default in their
obligations to purchase Notes hereunder on the Closing Date and the aggregate
principal amount of Notes that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total principal amount
of Notes that the Underwriters are obligated to purchase on such Closing Date,
the Representative may make arrangements satisfactory to the Trust Manager for
the purchase of such Notes by other persons, including any of the Underwriters,
but if no such arrangements are made by such Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Notes that such defaulting Underwriters
agreed but failed to purchase on such Closing Date. If any Underwriter or
Underwriters so default and the aggregate principal amount of Notes with respect
to which such default or defaults occur exceeds 10% of the total principal
amount of Notes that the Underwriters are obligated to purchase on such Closing
Date and arrangements satisfactory to the Representative and the Trust Manager
for the purchase of such Notes by other persons are not made within 36 hours
after such default, this Agreement will terminate without liability on the part
of any non-defaulting Underwriter or the Trust Manager, except as provided in
Section 9. As used in this Agreement, the term "UNDERWRITER" includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve a
defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
the ▇▇.▇▇▇▇▇▇ Parties, the Issuer Trustee or their respective officers and of
the several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation, or statement
as to the results thereof, made by or on behalf of any Underwriter, the
▇▇.▇▇▇▇▇▇ Parties, the Issuer Trustee or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Notes. If this Agreement is terminated
pursuant to Section 8 or if for any reason the purchase of the Notes by the
Underwriters is not consummated, the ▇▇.▇▇▇▇▇▇ Parties, jointly and severally,
shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5 and the respective obligations of the ▇▇.▇▇▇▇▇▇ Parties,
the Issuer Trustee and the Underwriters pursuant to Section 7 shall remain in
effect, and if any Notes have been purchased hereunder the representations and
warranties in Section 2 and all obligations under Section 5 shall also remain in
effect. If the purchase of the Notes by the Underwriters is not consummated for
any reason other than solely because of the termination of this Agreement
pursuant to Section 8 or the occurrence of any event specified in clause (iii),
(iv) or (v) of Section 6(b), the ▇▇.▇▇▇▇▇▇
21
Parties, jointly and severally, will reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Notes.
10. Selling Restrictions.
(a) No offering circular, prospectus or other disclosure document in relation to
any Notes has been lodged with the Australian Securities and Investments
Commission or the Australian Stock Exchange Limited. Each Underwriter severally
(but not jointly) represents and agrees that it:
(1) has not, directly or indirectly, offered for issue or sale or invited
applications for the issue of or for offers to purchase nor has it
sold, the Notes;
(2) will not, directly or indirectly, offer for issue or sale or invited
applications for the issue of or for offers to purchase nor will it
sell the Notes; and
(3) has not distributed and will not distribute any draft, preliminary or
definitive offering circular, or any advertisement or other offering
material,
in the Commonwealth of Australia, its territories or possessions ("AUSTRALIA")
or to any person who is actually known by the Underwriter (without an obligation
on the Underwriter to make any inquiry) to be resident of Australia for the
purposes of Section 128F of the Income Tax Assessment Act unless:
(1) the amount payable for the Class A Notes on acceptance of the offer by
each offeree or invitee is a minimum amount of [A$500,000] (or its
equivalent in another currency) (disregarding amounts, if any, lent by
Crusade Management Pty Limited or other person offering the Notes or
any associate of them) or the offer or invitation is otherwise an
offer or invitation for which no disclosure is required to be made
under Part 6D.2 of the Corporations Law and the Corporations
Regulations made under the Corporations Law;
(2) the offer, invitation or distribution complies with all applicable
laws, regulations and directives in relation to the offer, invitation
or distribution and does not require any document to be lodged with
the Australian Securities and Investments Commission; and
(3) the Class A Notes will not be acquired by an associate of Crusade
Management Pty Limited (which includes associates of the Issuer
Trustee and St. ▇▇▇▇▇▇ Bank) within the meaning of section 128F of the
Income Tax Assessment Act (other than in the capacity of a dealer,
manager or
22
underwriter in relation to a placement of the Class A Notes) as
identified on a list provided by St. ▇▇▇▇▇▇ Bank (the "LIST").
(b) Each Underwriter severally (but not jointly) agrees that, in connection
with the primary distribution of the Notes, it will not sell any Notes to any
person if, at the time of such sale, the employees of the Underwriter aware of,
or involved in, the sale knows, or has reasonable grounds to suspect that, as a
result of such sale, such Notes or any interest in such Notes were being, or
would later be acquired (directly or indirectly) by an associate of the Issuer
Trustee and Crusade Management Pty Limited for the purposes of section 128F of
the Income Tax Assessment Act.
(c) Each Underwriter agrees that it must offer the Notes for which it
subscribes for sale within 30 days of the issue of those Notes. Such offer must
only be by one of the following means (or a combination thereof);
(1) as a result of negotiations being initiated by the underwriter in
electronic form on Reuters or the electronic information system made
available to its subscribers by Bloomberg, L.P., specifying in such
offer the name of the issuer and the price at which the Notes are
offered for sale; or
(2) by the Underwriter offering those Notes for sale to at least 10
persons, each of whom must be (i) carrying on a business of providing
finance, or investing or dealing in securities, in the course of
operating in the financial markets; and (ii) not known to be an
associate of any of the others (within the meaning of section 128F of
the Income Tax Assessment Act).
Each Underwriter will provide the Issuer Trustee (within five Business Days of
the offer of such Notes by it) a written statement which sets out the details of
the relevant offer.
Each Underwriter (severally, not jointly) agrees to co-operate with reasonable
requests from the Issuer Trustee for information for the purposes of assisting
the Issuer Trustee to demonstrate that the public offer test under section 128F
of the Tax Act has been satisfied, provided that no Underwriter shall be obliged
to disclose the identity of the purchaser of any Note or any information from
which such identity might/would be capable of being ascertained, or any
information the disclosure of which would be contrary to or prohibited by any
relevant law, regulation or directive.
(a) Each Underwriter (severally and not jointly) acknowledges that no
representation is made by the Issuer Trustee or any ▇▇.▇▇▇▇▇▇ Party that any
action has been or will be taken in any jurisdiction outside the United States
by the Issuer Trustee or any Underwriter that would permit a public offering of
the Notes, or possession or distribution of the Prospectus or any other offering
material, in any country or jurisdiction where action for that purpose is
required. Each Underwriter (severally and not jointly) will comply with all
applicable securities laws and regulations in each jurisdiction in which it
purchases, offers, sells or delivers Notes or has in its possession or
distributes the Prospectus or any other offering material, in all cases at its
own expense.
23
(b) Each Underwriter (severally and not jointly) agrees that:
(i) it has only offered or sold and will only offer or sell any Notes in
or from the United Kingdom: (a) to persons (1) whose ordinary
activities involve them in acquiring, holding, managing or disposing
of investments (as principal or agent) for the purposes of their
businesses; or (ii) to persons who it is reasonable to expect will
acquire, hold, manage or dispose of investments (as principal or
agent) for the purposes of their business except in circumstances that
do not constitute an offer to the public under the Public Offers of
Securities Regulations 1995 (as amended)
(ii) it has complied and will comply with all applicable provisions of the
Financial Services Act with respect to anything done by it in relation
to the Notes in, from or otherwise involving the United Kingdom.
(iii) in connection with the Notes, it has only issued or passed on and
will only issue or pass on in the United Kingdom the Notes or any
document received by it in connection with the issue of the Notes, to
a person who is of a kind described in Article 11(3) of the Financial
Services ▇▇▇ ▇▇▇▇ (Investment Advertisements) (Exemptions) Order 1996
(as amended) or is a person to whom the document may otherwise
lawfully be issued or passed on.
11. Certain Matters Relating to the Issuer Trustee. The Issuer Trustee enters
into this Agreement only in its capacity as trustee of the Trust and in no other
capacity. A liability arising under or in connection with this Agreement or the
Trust is limited to and can be enforced against the Issuer Trustee only to the
extent to which it can be satisfied out of assets and property of the Trust
which are available to satisfy the right of the Issuer Trustee to be exonerated
or indemnified for such liability. This limitation of the Issuer Trustee's
liability applies despite any other provisions of this Agreement and extends to
all liabilities and obligations of the Issuer Trustee in any way connected with
any representation, warranty, conduct, omission, agreement or Transaction
related to this Agreement or the Trust.
The parties other than the Issuer Trustee may not ▇▇▇ the Issuer
Trustee in any capacity other than as trustee of the Trust or seek the
appointment of a receiver (except under the Security Trust Deed) or a
liquidator, an administrator or any other similar person to the Issuer Trustee
or prove in any liquidation, administration or arrangements of or affecting the
Issuer Trustee.
The provisions of this Section 11 shall not apply to any obligation or
liability of the Issuer Trustee to the extent that it is not satisfied because
under a Basic Document or by operation of law there is a reduction in the extent
of the Issuer Trustee's
24
indemnification or exoneration out of the assets of the Trust as a result of the
Issuer Trustee's fraud, negligence or Default (as defined in the Master Trust
Deed).
It is acknowledged that the Trust Manager, the Servicer, the Custodian,
the Currency Swap Providers, the Redraw Facility Provider, the Swap Providers,
the Standby Swap Providers, the Note Trustee, the Principal Paying Agent, the
other Paying Agents, the Calculation Agent and the Agent Bank (each, a "RELEVANT
PARTY") are responsible under the Transaction Documents (as defined in the
Master Trust Deed) for performing a variety of obligations relating to the
Trust. No act or omission of the Issuer Trustee (including any related failure
to satisfy its obligations under the Transaction Documents) will be considered
fraud, negligence or Default (as defined in the Master Trust Agreement) of the
Issuer Trustee for the purpose of this Agreement to the extent to which the act
or omission was caused or contributed to by any failure by any Relevant Party or
any other person who has been delegated or appointed by the Issuer Trustee in
accordance with the Transaction Documents (as defined in the Master Trust Deed)
to fulfil its obligations relating to the Trust or by any other act or omission
of a Relevant Party or by any other such person.
12. Consent to Jurisdiction; Appointment of Agent to Accept Service of Process.
Each of the ▇▇.▇▇▇▇▇▇ Parties and the Issuer Trustee hereby submits to
the non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby. Each of the
▇▇.▇▇▇▇▇▇ Parties and the Issuer Trustee irrevocably appoints CT Corporation,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its authorized agent
in the Borough of Manhattan in The City of New York upon which process may be
served in any such suit or proceeding, and agrees that service of process upon
such agent, and written notice of said service to it by the person serving the
same to the address provided in Section 16, shall be deemed in every respect
effective service of process upon it in any such suit or proceeding. Each of the
▇▇.▇▇▇▇▇▇ Parties and the Issuer Trustee further agrees to take any and all
action as may be necessary to maintain such designation and appointment of such
agent in full force and effect for so long as the Notes remain outstanding.
The obligation of any of the ▇▇.▇▇▇▇▇▇ Parties or the Issuer Trustee in
respect of any sum due to any Underwriter shall, notwithstanding any judgment in
a currency other than United States dollars, not be discharged until the first
business day, following receipt by such Underwriter of any sum adjudged to be so
due in such other currency, on which (and only to the extent that) such
Underwriter may in accordance with normal banking procedures purchase United
States dollars with such other currency; if the United States dollars so
purchased are less than the sum originally due to such Underwriter hereunder,
each of the ▇▇.▇▇▇▇▇▇ Parties and the Issuer Trustee agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Underwriter
against such loss.
13. Foreign Taxes. All payments to be made by the Issuer Trustee and any
▇▇.▇▇▇▇▇▇ Party hereunder shall be made without withholding or deduction for or
on account of any
25
present or future taxes, duties or governmental charges whatsoever unless the
Issuer Trustee or such ▇▇.▇▇▇▇▇▇ Party, as applicable, is compelled by law to
deduct or withhold such taxes, duties or charges. In that event, the Issuer
Trustee or such ▇▇.▇▇▇▇▇▇ Party, as applicable, shall pay such additional
amounts as may be necessary in order that the net amounts received after such
withholding or deduction shall equal the amounts that would have been received
if no withholding or deduction had been made.
14. Waiver of Immunities. To the extent that any of the Issuer Trustee and
▇▇.▇▇▇▇▇▇ Parties or any of their properties, assets or revenues may have or may
hereafter become entitled to, or have attributed to it, any right of immunity,
on the grounds of sovereignty or otherwise, from any legal action, suit or
proceeding, from the giving of any relief in any respect thereof, from setoff or
counterclaim, from the jurisdiction of any court, from service of process, from
attachment upon or prior to judgment, from attachment in aid of execution of
judgment, or from execution of judgment, or other legal process or proceeding
for the giving of any relief or for the enforcement of any judgment, in any
jurisdiction in which proceedings may at any time be commenced, with respect to
its obligations, liabilities or any other matter under or arising out of or in
connection this Agreement, the Issuer Trustee and the ▇▇.▇▇▇▇▇▇ Parties, as
applicable, hereby irrevocably and unconditionally waives, and agrees not to
plead or claim, any such immunity and consents to such relief and enforcement.
15. Judgment Currency. If any judgment or order in any legal proceeding against
any of the Issuer Trustee and the St. ▇▇▇▇▇▇ Parties is given or made for any
amount due hereunder and such judgment or order is expressed and paid in a
currency (the "JUDGMENT CURRENCY") other than United States dollars and there is
any variation as between (i) the rate of exchange (the "JUDGMENT RATE") at which
the United States dollar amount is converted into Judgment Currency for the
purpose of such judgment or order, and (ii) the rate of exchange (the "MARKET
RATE") at which the person to whom such amounts is paid (the "PAYEE") is able to
purchase United States dollars with the amount of the Judgment Currency actually
received by the holder, then the difference, expressed in United States dollars,
between such amount calculated at the Judgment Rate and such amount calculated
at the Market Rate shall be indemnified (a) if negative by the Issuer Trustee
and the St. ▇▇▇▇▇▇ Parties, as applicable, to the Payee and (b) if positive by
the Payee to the Issuer Trustee and the St. ▇▇▇▇▇▇ Parties, as applicable. The
foregoing indemnity shall constitute a separate and independent obligation of
the Issuer Trustee, the Trust Manager and St. ▇▇▇▇▇▇ or the Payee, as the case
may be, and shall continue in full force and effect notwithstanding any such
judgment or order as aforesaid. The term "RATE OR EXCHANGE" shall include any
premiums and costs of exchange payable in connection with the purchase of, or
conversion into, the relevant currency.
16. Notices. All communications hereunder will be in writing and, if sent to
the Underwriters, will be mailed, delivered or telegraphed and confirmed to the
Representative at Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention:
Investment Banking Department--Transactions Advisory Group; if sent to the
Trust Manager will be mailed, delivered or telegraphed and confirmed to the
Trust Manager at c/o Company Secretary, ▇▇▇▇▇ ▇, ▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
26
(Facsimile No. 612 9236 1899), Attention: Manager Securitisation; if sent to the
Issuer Trustee, mailed, delivered or telegraphed and confirmed to the Issuer
Trustee at ▇▇▇▇▇ ▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ (Facsimile
No. 612-9221-7870), Attention: Manager, Securitisation; and if sent to
▇▇.▇▇▇▇▇▇, mailed, delivered or telegraphed and confirmed to ▇▇.▇▇▇▇▇▇ at ▇▇▇▇▇
▇, ▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (Facsimile No. 612 9236 1899),
Attention: Manager Securitisation: provided, however, that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed and
confirmed to such Underwriter.
17. Successors. This Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder.
18. Representation of Underwriters. The Representative will act for the several
Underwriters in connection with this financing, and any action under this
Agreement taken by the Representative will be binding upon all the Underwriters.
19. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.
20. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return the enclosed
counterparts hereof, whereupon it will become a binding agreement between the
parties listed below in accordance with its terms.
Very truly yours,
CRUSADE MANAGEMENT LIMITED
By:
-------------------------------
Name:
Title:
PERPETUAL TRUSTEES
CONSOLIDATED LIMITED
By:
-------------------------------
Name:
Title:
▇▇
▇▇. ▇▇▇▇▇▇ BANK LIMITED
By:
-------------------------------
Name:
Title:
28
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the day first above
written
Credit Suisse First Boston Corporation
CREDIT SUISSE FIRST BOSTON CORPORATION
By:
-----------------------------------
Name:
Title:
Acting on behalf
of itself as the Representative of
the several Underwriters
29
SCHEDULE A
PRINCIPAL AMOUNT OF CLASS A
Underwriter NOTES TO BE PURCHASED
Credit Suisse First Boston Corporation $[_________]
[____________________________] 0
[___________________] 0
Total........................... $[_________]
30
CRUSADE GLOBAL TRUST NO 2 OF 2001
Certificate pursuant to section 6(c) of the Underwriting Agreement
Date: [__________], 2001
Credit Suisse First Boston Corporation
As Representative of the Underwriters
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
I hereby certify that, to the best of my knowledge after reasonable
investigation:
(i) the representations and warranties of Perpetual Trustees Consolidated
Limited, in its capacity as trustee of the Crusade Global Trust No 2 of
2001 (the "Issuer Trustee"), in the Underwriting Agreement dated
[_________], 2001 among Credit Suisse First Boston Corporation, as
representative ("Representative") of the Underwriters listed in Schedule A
to that agreement (the "Underwriters"), Crusade Management Limited, the
Issuer Trustee and St. ▇▇▇▇▇▇ Bank Limited (the "Underwriting Agreement")
are true and correct; and
(ii) the Issuer Trustee has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied under the Underwriting
Agreement.
By:____________________________
Name:
Title: