EXECUTION VERSION
U.S. $1,200,000,000
CRUSADE MANAGEMENT LIMITED
CRUSADE GLOBAL TRUST NO. 2 of 2006
U.S. $1,200,000,000 Class A-1
Mortgage Backed Floating Rate Notes
UNDERWRITING AGREEMENT
September 15, 2006
Credit Suisse Securities (USA) LLC
As Representative of the several
Underwriters Listed in Schedule A
Eleven Madison Avenue
New York, New York 10010
UNITED STATES OF AMERICA
Dear Sirs:
1. Introductory. Perpetual Trustees Consolidated Limited (ABN 81 004 029
841), a limited liability public company under the Corporations Act of Australia
in its capacity as trustee of the Crusade Global Trust No. 2 of 2006 (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 2006
(the "TRUST") proposes to sell to the several Underwriters listed in Schedule A
hereto (the "UNDERWRITERS"), for whom you are acting as representative (the
"REPRESENTATIVE"), U.S. $1,200,000,000 principal amount of Class A-1 Mortgage
Backed Floating Rate Notes (the "CLASS A-1 NOTES") issued by the Trust. The
Trust will also at the same time issue its (euro)450,000,000 Class A-2 Mortgage
Backed Floating Rate Notes, its A$600,000,000 Class A-3 Mortgage Backed Floating
Rate Notes, its A$53,200,000 Class B Notes and its A$24,300,000 Class C Mortgage
Backed Floating Rate Notes (collectively, the "OTHER NOTES" and together with
the Class A-1 Notes, the "NOTES"). Each Note will be secured by the assets of
the Trust. The assets of the Trust include, among other things, a pool of
variable and fixed rate residential housing loans (the "HOUSING LOANS")
originated or acquired by Xx.Xxxxxx Bank Limited (ABN 92 055 513 070)
("XX.XXXXXX"), including all monies at any time paid or payable thereon or in
respect thereof, from the close of business on August 23, 2006 (the "CUT-OFF
DATE") with respect to payments of principal and after the Closing Date (as
defined herein) with respect to payments of interest, rights under certain
insurance policies with respect to the Housing Loans, the Collection Account and
the rights of the Issuer Trustee under the Basic Documents. The Trust was
created pursuant to the Master
Trust Deed, dated March 14, 1998 (the "MASTER TRUST DEED"), Notice of Creation
of Trust, dated September 13, 2006 and a supplementary terms notice, to be dated
on or about September 19, 2006 (the "SUPPLEMENTARY TERMS NOTICE"), each among
the Issuer Trustee, Xx.Xxxxxx and the Trust Manager, which set forth specific
provisions regarding the Trust and detail the provisions of the Notes. The Note
Trust Deed, to be dated on or about September 19, 2006 (the "NOTE TRUST DEED")
by and among the Issuer Trustee, the Trust Manager and The Bank of New York (the
"NOTE TRUSTEE") provides for the issuance and registration of the Class A-1
Notes in accordance with the terms and conditions attached thereto. Xx.Xxxxxx
will act as seller and as servicer (the "SERVICER") of the Housing Loans. Each
of the Trust Manager and Xx.Xxxxxx is sometimes referred to as a "XX.XXXXXX
PARTY," and collectively, they are sometimes referred to herein as the
"XX.XXXXXX PARTIES."
The Trust Manager has prepared and filed with the U.S. Securities and
Exchange Commission (the "COMMISSION") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "SECURITIES ACT"), a registration
statement on Form S-3 (No. 333-128920), including a form of prospectus
supplement and a base prospectus. The registration statement as amended at the
time when it became effective, or, if any post-effective amendment has been
filed with respect thereto, as amended by the most recent post-effective
amendment at the time of its effectiveness, is referred to in this Agreement as
the "REGISTRATION STATEMENT", the form of base prospectus included in the
Registration Statement as most recently filed with the SEC is referred to as the
"BASE PROSPECTUS" and the form of the prospectus which includes the Base
Prospectus and a prospectus supplement describing the Class A-1 Notes and the
offering thereof (the "FINAL PROSPECTUS SUPPLEMENT") which prospectus is first
filed on or after the date of this Agreement in accordance with Rule 424(b) is
referred to in this Agreement as the "FINAL PROSPECTUS". The preliminary form of
the Prospectus Supplement dated August 31, 2006 (the "INITIAL PRELIMINARY
PROSPECTUS SUPPLEMENT") as supplemented by the preliminary supplement dated
September 13, 2006 (the "SUPPLEMENTED PRELIMINARY PROSPECTUS SUPPLEMENT") is
referred to as the "PRELIMINARY PROSPECTUS SUPPLEMENT" and, together with the
Base Prospectus, the "PRELIMINARY PROSPECTUS." The United States Securities
Exchange Act of 1934, as amended, is herein referred to as the "EXCHANGE ACT".
When used in this Agreement, "BASIC DOCUMENTS" shall mean each of the
Master Trust Deed, the Supplementary Terms Notice, the Servicing Agreement, the
Class A-1 Notes, the Security Trust Deed, the Note Trust Deed, the
Fixed-Floating Rate Swap, the Currency Swap, the Basis Swap and the Agency
Agreement. To the extent not defined herein, capitalized terms used herein have
the meanings assigned to such terms in the Final Prospectus. "EFFECTIVE DATE"
shall mean the earlier of the date on which the Final Prospectus is first used
and the time of the first Contract of Sale to which such Final Prospectus
relates. "RULE 424" refers to such rule under the Securities Act. "CONTRACT OF
SALE" has the same meaning as in Rule 159 of the Securities Act and all
Commission guidance relating thereto. "FREE WRITING PROSPECTUS" shall have the
meaning given such term in Rules 405 and 433 of the Securities Act.
In this Agreement, a reference to the Issuer Trustee is a reference to the
Issuer Trustee in its capacity as trustee of the Trust only, and in no other
capacity. Any reference to the assets, business, property or undertaking of the
Issuer Trustee is a reference to the Issuer Trustee in that capacity only.
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In this Agreement, a reference to any representation, warranty, covenant
undertaking or indemnity by Xx.Xxxxxx or the Trust Manager shall be construed
such that a clear distinction exists between Xx.Xxxxxx and the Trust Manager in
respect of any obligations in accordance with Australian Prudential Regulatory
Authority AGN 120.1.
Each Xx.Xxxxxx Party and the Issuer Trustee hereby agree with the several
Underwriters named on Schedule A as follows:
2. Representations and Warranties of the Issuer Trustee and the Xx.Xxxxxx
Parties.
I. The Issuer Trustee represents and warrants to each Underwriter that:
(a) Since the respective dates as of which the information
contained in the Preliminary Prospectus and the Final
Prospectus under the heading "The Issuer Trustee, Xx.Xxxxxx
Bank and the Manager" was provided, there has been no material
adverse change or any development involving a prospective
material adverse change in the condition (financial or
otherwise) of the Issuer Trustee, except as disclosed in the
Preliminary Prospectus and the Final Prospectus, which would
affect that information which is material in the context of
the Issuer Trustee performing its obligations and duties under
the Class A-1 Notes and each Basic Document to which it is or
is to be a party.
(b) The Issuer Trustee is a corporation duly incorporated
and existing under the laws of Australia; it is lawfully
qualified and holds all Authorisations (as defined in the
Master Trust Deed) necessary for it to carry on its business
as described in the Preliminary Prospectus and the Final
Prospectus, for it to issue the Class A-1 Notes, for it to act
as required by each Basic Document to which it is or is to be
a party and, by law, for it to comply with any requirements
which affect the operations or business of the Trust or the
Issuer Trustee's obligations under the Basic Documents to
which it is a party and no other thing is required to be done
by the Issuer Trustee (including without limitation the making
of any filing or registration) in order to issue the Class A-1
Notes or to execute and act as required by each Basic Document
to which it is to be a party.
(c) This Agreement has been duly authorized, executed and
delivered by the Issuer Trustee.
(d) The Class A-1 Notes have been duly authorized, and, when
issued, delivered and paid for pursuant to this Agreement,
will have been duly executed, issued and delivered and will
constitute valid and binding obligations of the Issuer
Trustee, entitled to the benefits provided by the Note Trust
Deed and the Security Trust Deed, subject as to enforceability
to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation or other similar
laws affecting the enforcement
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of creditors' rights generally and to general equitable
principles. Each of the Basic Documents to which the Issuer
Trustee is a party has been duly authorized by the Issuer
Trustee, and, when executed and delivered by the Issuer
Trustee and each of the other parties thereto, will constitute
a legal, valid and binding obligation of the Issuer Trustee,
enforceable against the Issuer Trustee in accordance with its
terms, subject as to enforceability to applicable bankruptcy,
insolvency, reorganization, conservatorship, receivership,
liquidation or other similar laws affecting the enforcement of
creditors' rights generally and to general equitable
principles.
(e) The Issuer Trustee is not, nor with the giving of notice
or lapse of time or both would be, in violation of or in
default under, (i) its Constitution or (ii) any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Issuer Trustee is a party or by which
it or any of its properties is bound, except in the case of
(ii) for violations and defaults which individually and in the
aggregate would not have a material adverse effect on the
transactions contemplated herein or in the Basic Documents;
the issue and sale of the Class A-1 Notes and the performance
by the Issuer Trustee of all of the provisions of its
obligations under the Class A-1 Notes, the Basic Documents and
this Agreement and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a
default under, any agreement or instrument to which the Issuer
Trustee is a party or by which the Issuer Trustee is bound or
to which any of the property or assets of the Trust is
subject, nor will any such action result in any violation of
the provisions of the Constitution of the Issuer Trustee or
any applicable law or statute or any order, rule or regulation
of any court or governmental agency or body having
jurisdiction over the Issuer Trustee, or any of its
properties; and, to the knowledge of the Issuer Trustee and
assuming for this purpose that the representations and
warranties contained in Section 2.II.(h) hereof are true and
correct, no consent, approval, authorization, order, license,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Class A-1 Notes or the consummation by the Issuer
Trustee of the transactions contemplated by this Agreement or
the Basic Documents, except such consents, approvals,
authorizations, orders, licenses, registrations or
qualifications as may have been made and as may be required
under state securities or "Blue Sky" laws in connection with
the purchase and distribution of the Class A-1 Notes by the
Underwriters.
(f) Other than as set forth or contemplated in the
Preliminary Prospectus and the Final Prospectus, there are no
legal or governmental investigations, actions, suits or
proceedings pending or, to the knowledge of the Issuer
Trustee, threatened against or affecting the Issuer Trustee or
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the Trust, or to which the Issuer Trustee is or may be a party
or to which the Issuer Trustee or any property of the Trust is
or may be the subject, which will have an impact on the
transactions contemplated by this Agreement.
(g) The representations and warranties of the Issuer Trustee
contained in the Basic Documents are true and correct in all
material respects.
(h) To the Issuer Trustee's knowledge, no event has occurred
which would entitle the Trust Manager to direct the Issuer
Trustee to retire as trustee of the Trust under clause 20 of
the Master Trust Deed.
(i) The Issuer Trustee has not taken any corporate action
nor (to the best of its knowledge and belief) have any other
steps been taken or legal proceedings been started or
threatened against the Issuer Trustee for its winding-up,
dissolution or reorganization or for the appointment of a
receiver, receiver and manager, administrator, provisional
liquidator or similar officer of it or of any or all of its
assets.
(j) Subject to compliance with Section 128F of the Income
Tax Assessment Act (1936) (the "TAX ACT") and compliance by
the Underwriters with Section 10(b) and 10(c) hereto, no stamp
or other duty is assessable or payable in, and no withholding
or deduction for any taxes, duties, assessments or
governmental charges of whatever nature is imposed or made for
or on account of any income, registration, transfer or
turnover taxes, customs or other duties or taxes of any kind,
levied, collected, withheld or assessed by or within, the
Commonwealth of Australia or any sub-division of or authority
therein or thereof having power to tax in such jurisdiction,
in connection with the authorization, execution or delivery of
the agreements to which the Issuer Trustee is to be a party or
with the authorization, execution, issue, sale or delivery of
the Class A-1 Notes and the performance of the Issuer
Trustee's obligations under the Basic Documents, other than,
in the case of stamp duty, following a Title Perfection Event
(as defined in the Master Trust Deed), to which it is to be a
party and payments under the Class A-1 Notes.
(k) The Class A-1 Notes and the obligations of the Issuer
Trustee under the Note Trust Deed will be secured (pursuant to
the Security Trust Deed) by a first floating charge over the
assets of the Trust, subject to the terms of the Security
Trust Deed.
(l) No event has occurred or circumstances arisen which, had
the Class A-1 Notes already been issued, would (whether or not
with the giving of notice and/or the passage of time and/or
the fulfillment of any other requirement) constitute an Issuer
Trustee's Default (as defined in the Final Prospectus).
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II. Each Xx.Xxxxxx Party, as to itself only, represents and warrants to each
Underwriter and the Issuer Trustee that:
(a) The Trust Manager filed the Registration Statement with the
Commission pursuant to the Securities Act. The Trust Manager filed
the Preliminary Prospectus pursuant to Rule 424(b) under the
Securities Act. The Trust Manager will file the Final Prospectus
with the Commission pursuant to Rule 424(b) under Securities Act.
(b) The Registration Statement has been declared effective under
the Securities Act by the Commission. No stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge
of the Trust Manager, threatened by the Commission. The Registration
Statement and Final Prospectus (as amended or supplemented if the
Trust Manager shall have furnished any amendments or supplements
thereto) comply, or will comply, as the case may be, in all material
respects with the Securities Act and the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "TRUST INDENTURE ACT") and do not and
will not, as of the applicable Effective Date of the Registration
Statement and any amendment thereto and as of the date of the Final
Prospectus and any amendment or supplement thereto, contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, and the Final Prospectus, as
amended or supplemented, if applicable, at the Closing Date will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
except that the foregoing representations and warranties shall not
apply to (i) that part of the Registration Statement which
constitutes the Statement of Eligibility and Qualification (Form
T-1) of the Note Trustee under the Trust Indenture Act and (ii)
statements in or omissions from the Registration Statement or the
Final Prospectus based upon written information furnished to the
Trust Manager by any Underwriter through the Representative
specifically for use therein, it being understood and agreed that
the only such information is that described as such in Section 7(b).
(c) Except as described in the Preliminary Prospectus and the
Final Prospectus, since the respective dates as of which information
is given in Preliminary Prospectus and the Final Prospectus, there
has been no material adverse change, nor any development involving a
prospective material adverse change, in the condition (financial or
other), business, properties, stockholders' equity or results of
operations of such Xx.Xxxxxx Party taken as a whole.
(d) Such Xx.Xxxxxx Party is a corporation duly incorporated and
validly existing under the Corporations Act of the Commonwealth of
Australia as in effect at the date of this agreement; such Xx.Xxxxxx
Party has the power and authority (corporate and other) to own its
properties and conduct its business as described in the Preliminary
Prospectus and the Final Prospectus and to enter into and
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perform its obligations under this Agreement and the Basic Documents
to which it is a party and carry out the transactions contemplated
by such Basic Documents; such Xx.Xxxxxx Party has been duly
qualified or licensed for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns
or leases properties, or conducts any business, so as to require
such qualification or licensing, other than where the failure to be
so qualified or licensed or in good standing would not have a
material adverse effect on the transactions contemplated herein or
in the Basic Documents.
(e) This Agreement has been duly authorized, executed and
delivered by such Xx.Xxxxxx Party.
(f) The Basic Documents to which such Xx.Xxxxxx Party is a party
have been duly authorized by such Xx.Xxxxxx Party, the Note Trust
Deed will be timely and duly qualified under the Trust Indenture Act
(upon filing with the Commission) and, when executed and delivered
by the Xx.Xxxxxx Party which is a party thereto and each of the
other parties thereto, each of the Basic Documents to which such
Xx.Xxxxxx Party is a party will constitute a legal, valid and
binding obligation of such Xx.Xxxxxx Party, enforceable against such
Xx.Xxxxxx Party in accordance with its terms, subject as to
enforceability to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation or other similar laws
affecting the enforcement of creditors' rights generally and to
general equitable principles; and the Class A-1 Notes and the Basic
Documents each will conform to the descriptions thereof in the
Preliminary Prospectus and the Final Prospectus.
(g) Such Xx.Xxxxxx Party is not, and with the giving of notice, or
lapse of time or both would not be, in violation of or in default
under, (i) its Constitution or (ii) any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which it
is a party or by which it or any of its properties is bound, except
in the case of (ii) for violations and defaults which individually
and in the aggregate would not have a material adverse effect on the
transactions contemplated herein or in the Basic Documents; the
issue and sale of the Class A-1 Notes and the performance by such
Xx.Xxxxxx Party of all of the provisions of its obligations under
the Class A-1 Notes, the Basic Documents and this Agreement and the
consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which such Xx.Xxxxxx Party is a party or by which such
Xx.Xxxxxx Party is bound or to which any of the property or assets
of such Xx.Xxxxxx Party is subject, nor will any such action result
in any violation of the provisions of the Constitution of such
Xx.Xxxxxx Party or any applicable law or statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over such Xx.Xxxxxx Party, or any of its properties;
and no consent, approval, authorization, order, license,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of
the Class A-1 Notes or the consummation by such Xx.Xxxxxx Party of
the transactions contemplated by this
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Agreement or the Basic Documents, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as
have been obtained under the Securities Act, the Trust Indenture
Act, and as may be required under state securities or "Blue Sky"
laws in connection with the purchase and distribution of the Class
A-1 Notes by the Underwriters.
(h) Other than as set forth or contemplated in the Preliminary
Prospectus and the Final Prospectus, there are no legal or
governmental investigations, actions, suits or proceedings pending
or, to the knowledge of such Xx.Xxxxxx Party, threatened against or
affecting such Xx.Xxxxxx Party or its properties, to which such
Xx.Xxxxxx Party is or may be a party or to which such Xx.Xxxxxx
Party or any property of such Xx.Xxxxxx Party is or may be the
subject, in each case, which will have an impact on the transactions
contemplated by this Agreement; and there are no statutes,
regulations, contracts or other documents that are required to be
filed as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Final Prospectus
which are not filed or described as required.
(i) The representations and warranties of such Xx.Xxxxxx Party
contained in the Basic Documents are true and correct in all
material respects.
(j) KPMG LLP are independent public accountants with respect to
such Xx.Xxxxxx Party within the meaning of the standards established
by the American Institute of Certified Public Accountants.
(k) Such Xx.Xxxxxx Party owns, possesses or has obtained all
Authorisations (as defined in the Master Trust Deed), licenses,
permits, certificates, consents, orders, approvals and other
authorizations from, and has made all declarations and filings with,
all federal, state, local and other governmental authorities
(including foreign regulatory agencies), all self-regulatory
organizations and all courts and other tribunals, domestic or
foreign, necessary to perform its obligations under this Agreement
and the Basic Documents, and such Xx.Xxxxxx Party has not received
any actual notice of any proceeding relating to revocation or
modification of any such Authorisation, license, permit,
certificate, consent, order, approval or other authorization; and
such Xx.Xxxxxx Party is in compliance with all laws and regulations
necessary for the performance of its obligations under this
Agreement and the Basic Documents.
(l) To the knowledge of such Xx.Xxxxxx Party, no event has
occurred which would entitle such Xx.Xxxxxx Party to direct the
Issuer Trustee to retire as trustee of the Trust under clause 20 of
the Master Trust Deed.
(m) Such Xx.Xxxxxx Party has not taken any corporate action nor
(to the best of its knowledge and belief) have any other steps been
taken or legal proceedings been started or threatened against such
Xx.Xxxxxx Party for its winding-up, dissolution or reorganization or
for the appointment of a receiver, receiver and
8
manager, administrator, provisional liquidator or similar officer of
it or of any or all of its assets.
(n) Subject to compliance with Section 128F of the Tax Act and
compliance by the Underwriters with Section 10(b) and 10(c) hereto,
no stamp or other duty is assessable or payable in, and no
withholding or deduction for any taxes, duties, assessments or
governmental charges of whatever nature is imposed or made for or on
account of any income, registration, transfer or turnover taxes,
customs or other duties or taxes of any kind, levied, collected,
withheld or assessed by or within, the Commonwealth of Australia or
any sub-division of or authority therein or thereof having power to
tax in such jurisdiction, in connection with the authorization,
execution or delivery of the agreements to which it is to be a party
or with the authorization, execution, issue, sale or delivery of the
Class A-1 Notes and the performance of such Xx.Xxxxxx Party's
obligations under the agreements to which it is to be a party and
the Class A-1 Notes.
(o) No event has occurred or circumstances arisen which, had the
Class A-1 Notes already been issued, would (whether or not with the
giving of notice and/or the passage of time and/or the fulfillment
of any other requirement) constitute a Manager's Default (as defined
in the Final Prospectus).
(p) Since August 23, 2006, there has been no material adverse
change or any development involving a prospective material adverse
change in the condition (financial or otherwise) of such Xx.Xxxxxx
Party; and
(q) As of the Closing Date, Xx.Xxxxxx will have transferred to the
Issuer Trustee a valid equitable assignment of each related Housing
Loan offered for sale by it to the Issuer Trustee.
(r) Neither the Trust nor any Xx.Xxxxxx Party is an open-end
investment company, unit investment trust or face-amount certificate
company that is or is required to be registered under Section 3 of
the United States Investment Company Act of 1940, as amended (the
"INVESTMENT COMPANY ACT"); and neither of the Trust nor any
Xx.Xxxxxx Party is and, after giving effect to the offering and sale
of the Class A-1 Notes and the application of the proceeds thereof
as described in the Preliminary Prospectus and the Final Prospectus,
will not be an "INVESTMENT COMPANY" as defined in the Investment
Company Act.
3. Purchase, Sale and Delivery of Class A-1 Notes. On the basis of the
representations, warranties and agreements contained herein, but subject to the
terms and conditions herein set forth, the Issuer Trustee, at the direction of
the Trust Manager, agrees to sell the Class A-1 Notes to the Underwriters, and
each Underwriter agrees, severally, and not jointly, to purchase from the Issuer
Trustee at a purchase price of 100% of the principal amount of the Class A-1
Notes (which amount may be made net of the commissions payable to the
Underwriters or such commissions may be paid to the Underwriters as a separate
payment, as the Representative and the Xx.Xxxxxx Parties shall agree) the
respective principal amount of the Class A-1 Notes set forth opposite the name
of such Underwriter in Schedule A hereto. In
9
addition, the Underwriters shall severally, and not jointly, be responsible for
certain out-of-pocket expenses incurred by the Xx.Xxxxxx Parties in connection
with the offering of the Class A-1 Notes, as shall be agreed to separately by
the Underwriters and the Xx.Xxxxxx Parties (and such expenses may include a
portion of the related attorneys fees incurred by the Xx.Xxxxxx Parties).
Furthermore, if any Class A-1 Notes are offered and sold by an Underwriter
pursuant to Section 10(j) hereof, compliance with Section 10(j) shall, in all
cases, be at such Underwriter's sole expense.
The Issuer Trustee will deliver against payment of the purchase price the
Class A-1 Notes in the form of one or more fully registered, global book-entry
notes (the "GLOBAL NOTES") deposited with the Note Trustee as custodian for The
Depository Trust Company ("DTC") and registered in the name of Cede & Co., as
nominee for DTC. Interests in any permanent Global Notes will be held only in
book-entry form through DTC, except in the limited circumstances described in
the Preliminary Prospectus and the Final Prospectus. Payment for the Class A-1
Notes shall be made by the Underwriters in Federal (same day) funds by official
bank check or checks or wire transfer to an account at a bank acceptable to the
Representative drawn to the order of Credit Suisse (USA), Inc. (the "CURRENCY
SWAP PROVIDER") at the office of Mayer, Brown, Xxxx & Maw LLP, 0000 Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 not later than 10:00 A.M., New York City time, on
September 21, 2006, or at such other time not later than seven full business
days thereafter as the Representative and the Trust Manager determine, such time
being herein referred to as the "CLOSING DATE," against delivery to the Note
Trustee as custodian for DTC of the Global Notes representing all of the Class
A-1 Notes. The Global Notes will be made available for checking at the above
office at least 24 hours prior to the Closing Date.
4. Offering by Underwriters. The Trust Manager and the Issuer Trustee
understand that the several Underwriters propose to offer the Class A-1 Notes
for sale to the public as set forth in the Preliminary Prospectus and the Final
Prospectus.
5. Certain Agreements of the Xx.Xxxxxx Parties, the Issuer Trustee and the
Underwriters.
I. Each Xx.Xxxxxx Party, in respect of itself only, covenants and agrees with
each of the several Underwriters as follows:
(a) The Trust Manager shall file the Final Prospectus, properly
completed, with the Commission pursuant to and in accordance with
subparagraph (5) of Rule 424(b) of the Securities Act no later than the
second business day following the date it is first used. The Trust Manager
will advise the Representative promptly of any such filing pursuant to
Rule 424(b).
(b) The Trust Manager will advise the Representative promptly of any
proposal to amend or supplement the Registration Statement as filed, the
Preliminary Prospectus or the Final Prospectus, and subject to Section
5.I.(c) hereof, will not effect such amendment or supplementation without
the Representative's consent (which will not be unreasonably withheld);
and the Trust Manager will also advise the Representative promptly of the
institution by the Commission of any stop order proceedings in respect of
the Registration
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Statement and will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Class A-1 Notes is
required to be delivered under the Securities Act in connection with sales
by any Underwriter or dealer, the Trust Manager becomes aware of the
occurrence of any event as a result of which the Final Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Final
Prospectus to comply with the Securities Act, the Trust Manager will
promptly notify the Representative of such event and will promptly prepare
and file with the Commission, at its own expense, an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance. Neither the Representative's consent
to, nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section 6.
(d) The Trust Manager will furnish to the Representative copies of the
Registration Statement and each amendment (which will include all
exhibits), the Preliminary Prospectus, and, so long as a prospectus
relating to the Class A-1 Notes is required to be delivered under the
Securities Act in connection with sales by any Underwriter or dealer, the
Final Prospectus and all amendments and supplements to such documents, in
each case in such reasonable quantities as the Representative requests;
provided, however, that if the Final Prospectus is not delivered with the
confirmation in accordance with Rule 172 under the Securities Act, the
Underwriters will provide the notice specified in Section 5.III.(b) in
every confirmation and will deliver a paper copy of the Final Prospectus
to those investors that request a paper copy thereof. The Final Prospectus
and any amendments or supplements thereto, shall be so furnished on or
prior to 3:00 P.M., New York time, on or prior to, the later to occur of
the second business day following the execution and delivery of this
Agreement or the date such Final Prospectus is first used, but in no event
later than the day before the Closing Date. All other documents shall be
so furnished as soon as available. The Trust Manager will pay the expenses
of printing and distributing to the Underwriters all such documents.
(e) The Trust Manager will endeavor to qualify the Class A-1 Notes for
offer and sale and under the securities and Blue Sky laws of such
jurisdictions as the Representative designates and will continue such
qualification in effect so long as is reasonably required for the
distribution; provided the Trust Manager shall not be required to file a
general consent to service of process in any jurisdiction.
(f) So long as the Class A-1 Notes are outstanding, the Trust Manager
will furnish to the Representative (i) copies of each certificate, the
annual statements of compliance and the annual independent certified
public accountant's audit report on the financial statements furnished to
the Issuer Trustee or the Note Trustee pursuant to the Basic Documents by
first class mail as soon as practicable after such statements and reports
are furnished to the 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
11
Factor as of the related Record Date shall be available to the
Representative on Bloomberg and Reuters, (iv) copies of all reports or
other communications (financial or other) furnished to holders of the
Class A-1 Notes, and copies of any reports and financial statements
furnished to or filed with any governmental or regulatory authority or any
national securities exchange, and (v) from time to time such other
information concerning the Trust or the Trust Manager as the
Representative may reasonably request.
(g) To the extent, if any, that the ratings provided with respect to the
Class A-1 Notes by the Rating Agencies are conditional upon the furnishing
of documents or the taking of any other action by the Trust Manager, the
Trust Manager shall use its best efforts to furnish such documents and
take any other such action.
(h) The Trust Manager will assist the Representative in making
arrangements with DTC, Euroclear and Clearstream, Luxembourg concerning
the issue of the Class A-1 Notes and related matters.
(i) The Trust Manager will not take, or cause to be taken, any action
and will not knowingly permit any action to be taken which it knows or has
reason to believe would result in the Class A-1 Notes not being assigned
the ratings referred to in Section 6(m) below.
(j) Xx.Xxxxxx will pay all expenses incident to the performance of the
Xx.Xxxxxx Parties' obligations under this Agreement, for any filing fees
and other expenses (including fees and disbursements of Underwriters'
counsel and issuers' counsel) incurred in connection with qualification of
the Class A-1 Notes for sale under the laws of such jurisdictions as the
Representative designates and the printing of memoranda relating thereto,
for any fees charged by the independent accountants, for any fees charged
by the rating agencies for the rating of the Class A-1 Notes, for any
travel expenses of any of the Xx.Xxxxxx Parties' officers and employees
and any other expenses of either Xx.Xxxxxx Party in connection with
attending or hosting meetings with prospective purchasers of the Class A-1
Notes and for expenses incurred in distributing the Preliminary Prospectus
and the Final Prospectus (including any amendments and supplements
thereto) to the Underwriters.
(k) Xx.Xxxxxx Bank will indemnify and hold harmless the Underwriters
against any documentary, stamp or similar issue tax, including any
interest and penalties, on the creation, issue and sale of the Class A-1
Notes and on the execution and delivery of this Agreement. All payments to
be made by the Issuer Trustee and the Xx.Xxxxxx Parties hereunder shall be
made without withholding or deduction for or on account of any present or
future taxes, duties or governmental charges whatsoever unless the Trust
Manager is compelled by law to deduct or withhold 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.
(l) The Xx.Xxxxxx Party will not offer, sell, contract to sell, pledge
or otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Securities Act relating to
asset-backed securities, or publicly disclose the intention to make
12
any such offer, sale, pledge, disposition or filing, without the prior
written consent of the Representative for a period beginning at the date
of this Agreement and ending at the later of the Closing Date or the
lifting of trading restrictions by the Representative.
(m) The Trust Manager will file the information substantially similar to
the information set forth on Schedule B (the "REVISED INFORMATION"), not
later than the date of first use thereof, provided however, that prior to
the filing of the Revised Information by the Trust Manager, the
Underwriters must comply with their obligations pursuant to Section
5.III.(c); provided, however, that the Trust Manager shall not be
obligated to file the Revised Information if such Revised Information has
been determined to contain any material error or omission unless the
Revised Information has been provided to a Potential Investor (as defined
herein), in which case, the Trust Manager shall file the corrective
information provided by the Underwriter pursuant to Section 5.III.(d) not
later than the date of first use thereof.
(n) So long as the Class A-1 Notes are outstanding, the Trust Manager
will not be or become (nor permit the Trust to be or become), an open-end
investment company, unit investment trust or face-amount certificate
company that is or is required to be registered under Section 8 of the
Investment Company Act.
II. The Issuer Trustee covenants and agrees with each of the several
Underwriters as follows:
(a) The Issuer Trustee will use the net proceeds received by the Issuer
Trustee from the sale of the Class A-1 Notes pursuant to this Agreement in
the manner specified in the Preliminary Prospectus and the Final
Prospectus under the caption "Use of Proceeds".
(b) The Issuer Trustee will pay any stamp duty or other issue,
transaction, value added or similar tax, fee or duty (including court
fees) in relation to the execution of, or any transaction carried out
pursuant to, the Basic Documents or in connection with the issue and
distribution of the Class A-1 Notes or the enforcement or delivery of this
Agreement.
(c) The Issuer Trustee will use all reasonable efforts to procure
satisfaction on or before the Closing Date of the conditions referred to
in Section 6 below and, in particular (i) the Issuer Trustee shall execute
those of the Basic Documents required to be executed by the Issuer Trustee
not executed on the date hereof on or before the Closing Date, and (ii)
the Issuer Trustee will assist the Representative to make arrangements
with DTC, Euroclear and Clearstream, Luxembourg concerning the issue of
the Class A-1 Notes and related matters.
(d) The Issuer Trustee will procure or cause to be procured that the
charges created by or contained in the Security Trust Deed are registered
within all applicable time limits in all appropriate registers.
(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.
13
(f) The Issuer Trustee will not take, or cause to be taken, any action
and will not knowingly permit any action to be taken which it knows or has
reason to believe would result in the Class A-1 Notes not being assigned
the ratings referred to in Section 6(m) below.
(g) The Issuer Trustee will not prior to or on the Closing Date amend
the terms of any Basic Document to which it is a party nor execute any of
the Basic Documents to which it is a party other than in the agreed form
without the consent of the Representative.
III. Each of the several Underwriters, for itself only, represents, warrants
and agrees with the Xx.Xxxxxx Parties and the Issuer Trustee as follows:
(a) Other than the Initial Preliminary Prospectus (as defined herein),
the Preliminary Prospectus, the Final Prospectus, the Revised Information
and the information set forth on Schedule C (the "INITIAL INFORMATION"),
such Underwriter has not conveyed and will not convey, without the Trust
Manager's prior written approval, to any potential investor in the Class
A-1 Notes (each a "POTENTIAL INVESTOR") any other written material of any
kind relating to the Class A-1 Notes that would constitute a "prospectus"
or a "free writing prospectus," each as defined in the Securities Act and
Rule 405 thereunder, as applicable, including, but not limited to the
materials constituting a "road show" presentation to Potential Investors
(other than use or transmission of such written or electronic materials as
part of a live or electronic road show in which representatives from the
Trust Manager participated) and any "ABS informational and computational
materials" within the meaning of Item 1101(a) of Regulation AB promulgated
by the Commission under the Securities Act and the Exchange Act; provided,
however, that, in addition to the foregoing, such Underwriter may convey
to one or more of its Potential Investors information permitted by Rule
134 under the Securities Act.
(b) Prior to the Closing Date each Underwriter shall notify the Trust
Manager or Xx.Xxxxxx of the earlier of (x) the date on which the Final
Prospectus is first used and (y) the time of the first Contract of Sale to
which such Final Prospectus relates.
(c) The Underwriters shall deliver the Initial Information and the
Revised Information (including any corrected Revised Information to the
extent described in Section 5.I.(m)) to the Trust Manager and its counsel
(in such format as reasonably required by the Trust Manager) prior to the
proposed date of first use thereof (unless such timing requirement is
waived by the Trust Manager).
(d) If the Revised Information has been determined to contain any
material error or omission and the Revised Information has been provided
to a Potential Investor, the Underwriters shall cooperate with the Trust
Manager to prepare corrective information that the Underwriters will
provide to any such Potential Investor. In the event that an Underwriter
becomes aware that, as of the date on which an investor entered into a
Contract of Sale, the Initial Information or the Revised Information
contained any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements contained therein,
in light of the circumstances under which they were
14
made, not misleading, such Underwriter shall notify the Trust Manager
thereof as soon as practical but in any event within one business day
after discovery.
(e) Each Underwriter represents that it will offer the Class A-1 Notes
for sale to the public as set forth in the Final Prospectus and that all
such offers and sales shall be made in compliance with the Securities Act.
(f) Each Underwriter covenants with the Trust Manager and the Issuer
Trustee that after the Final Prospectus is available such Underwriter
shall not distribute any written information concerning the Class A-1
Notes to a Potential Investor unless such information is preceded or
accompanied by the Final Prospectus.
(g) (i) If the Final Prospectus is not delivered with the confirmation
in reliance on Rule 172 under the Securities Act, it will include in every
confirmation sent out the notice required by Rule 173 under the Securities
Act informing the investor that the sale was made pursuant to the
Registration Statement and that the investor may request a copy of the
Final Prospectus from such Underwriter; (ii) if a paper copy of the Final
Prospectus is requested by a person who receives a confirmation, such
Underwriter shall deliver a printed or paper copy of such Prospectus; and
(iii) if an electronic copy of the Final Prospectus is delivered by such
Underwriter for any purpose, such copy shall be identical to the copy of
the Final Prospectus that is provided to such Underwriter by the Trust
Manager for such purpose.
(h) Each of the several Underwriters, for itself only, further agrees
not to accept any offer to purchase Class A-1 Notes from a Potential
Investor prior to the delivery of the Initial Preliminary Prospectus and
the Preliminary Prospectus to such Potential Investor within the time
limits set forth in Section 10(k).
(i) If the Trust Manager or an Underwriter determines or becomes aware
that any information (including without limitation the Preliminary
Prospectus) or oral statement (when considered in conjunction with all
information conveyed at the time of Contract of Sale) contains an untrue
statement of material fact or omits to state a material fact necessary to
make the statements, in light of the circumstances under which they were
made, not misleading at the time that a Contract of Sale was entered into,
either the Trust Manager or such Underwriter may prepare corrective
information in a manner reasonably acceptable to both parties (the
"CORRECTIVE INFORMATION"), and such Underwriter shall deliver such
Corrective Information to any person with whom a Contract of Sale was
entered into.
(j) Each Underwriter shall covenant not to distribute the Initial
Information in a manner reasonably designed to lead to its broad
unrestricted dissemination.
6. Conditions of the Obligations of the Underwriters. The obligations of the
several Underwriters to purchase and pay for the Class A-1 Notes on the Closing
Date will be subject to the accuracy of the representations and warranties on
the part of the Xx.Xxxxxx Parties and the Issuer Trustee herein, to the accuracy
of the statements of officers of the Xx.Xxxxxx Parties and the Issuer Trustee
made pursuant to the provisions hereof, to the performance of the
15
Xx.Xxxxxx Parties and the Issuer Trustee of their obligations hereunder and to
the following additional conditions precedent:
(a) The Registration Statement shall have become effective, or if a
post-effective amendment is required to be filed under the Securities Act,
such post-effective amendment shall have become effective, not later than
5:00 P.M., New York City time, on the date prior to the date hereof or on
such later date to which you have consented; and no stop order suspending
the effectiveness of the Registration Statement or any post-effective
amendment shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission. The Preliminary Prospectus
and the Final Prospectus (including any amendments or supplements thereto)
shall have been transmitted to the Commission for filing pursuant to Rule
424(b) within the applicable time period prescribed for such filings by
the Securities Act and in accordance with Section 5.I.(a) hereof; and
prior to the Closing Date the Trust Manager shall have provided evidence
satisfactory to the Representative of such timely filing, and all requests
for additional information shall have been complied with to the
satisfaction of the Representative.
(b) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of any of the Xx.Xxxxxx
Parties, the Issuer Trustee or any Swap Party and their respective
subsidiaries, in each case, taken as one enterprise, which, in the
judgment of a majority in interest of the Underwriters including the
Representative, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the sale
of and payment for the Class A-1 Notes on the terms and in the manner
contemplated by the Preliminary Prospectus and the Final Prospectus; (ii)
any downgrading in the rating of any debt securities of any of the Trust
Manager, Xx.Xxxxxx, the Issuer Trustee or any Swap Party by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Act), or any public
announcement that any such organization has under surveillance or review
its rating of the Class A-1 Notes or any debt securities of any of the
Trust Manager, Xx.Xxxxxx, the Issuer Trustee or any Swap Party (other than
an announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any change
in United States, Australian or international financial, political or
economic conditions or currency exchange rates or exchange controls as
would, in the judgment of a majority in interest of the Underwriters,
including the Representative, be likely to prejudice materially the
success of the proposed issue, sale or distribution of the Class A-1
Notes, whether in the primary market or in respect of dealings in the
secondary market; (iv) any material suspension or material limitation of
trading in securities generally on the New York Stock Exchange, the London
Stock Exchange or any other exchange on which the Class A-1 Notes are
listed, or any setting of minimum prices for trading on such exchange, or
any suspension of trading of any securities of any of the Trust Manager,
Xx.Xxxxxx, the Issuer Trustee or any Swap Party on any exchange or in the
over-the-counter market; (v) any banking moratorium declared by U.S.
Federal, New York, London, England or Australian authorities; (vi) any
material disruption in the settlement or clearance services of DTC,
16
Euroclear or Clearstream; or (vii) any outbreak or escalation of major
hostilities or material act of terrorism involving the United States, the
United Kingdom or Australia, any declaration of war by Congress or any
other substantial national or international calamity or emergency if, in
the judgment of a majority in interest of the Underwriters, including the
Representative, the effect of any such outbreak, escalation, act,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment
for the Class A-1 Notes.
(c) The Representative shall have received a certificate, dated the
Closing Date, of the managing director, director or any chief general
manager of each Xx.Xxxxxx Party and (as to paragraphs (i) and (ii) below
only) of an authorized officer of the Issuer Trustee in which such
officers, to the best of their knowledge after reasonable investigation,
shall state that: (i) the representations and warranties of such entity in
this Agreement are true and correct; (ii) such entity has complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to such Closing Date; and (iii) subsequent
to the date of the most recent financial statements supplied by the
Xx.Xxxxxx Parties to the Underwriters or the Representative on behalf of
the Underwriters, there has been no material adverse change, nor any
development or event involving a prospective material adverse change, in
the condition (financial or other), business, properties or results of
operations of such entity and its subsidiaries taken as a whole except as
set forth in or contemplated by the Preliminary Prospectus and the Final
Prospectus or as described in such certificate.
(d) Allens Xxxxxx Xxxxxxxx, Australian counsel for Xx.Xxxxxx, the Trust
Manager and the Servicer, shall have furnished to the Representative their
written opinion, dated the Closing Date, in form and substance
satisfactory to the Representative, and such counsel shall have received
such papers and information as they may reasonably request to enable them
to pass upon such matters, a copy of which opinion is attached hereto as
Exhibit A.
(e) Allens Xxxxxx Xxxxxxxx, Australian tax counsel for Xx.Xxxxxx, the
Trust Manager and the Servicer, shall have furnished to the Representative
their written opinion, dated the Closing Date, in form and substance
satisfactory to the Representative, and such counsel shall have received
such papers and information 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 on or
about the date hereof and one dated on or about the date of the
Preliminary Prospectus, of KPMG LLP confirming that they are independent
public accountants within the standards established by the American
Institute of Certified Public Accountants and the meaning of the
Securities Act and stating to the effect that they have compared specified
dollar amounts (or percentages derived from such dollar amounts) and other
financial information contained in the Preliminary Prospectus and the
Final Prospectus, and any amendment or supplement thereto (in each case to
the extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the
Xx.Xxxxxx Parties and their subsidiaries subject to the internal controls
of such parties' accounting system or are derived directly from such
records by analysis or computation
17
or from the collateral tape containing the description of the Housing
Loans) with the results obtained from inquiries, a reading of such general
accounting records and collateral tape and other procedures specified in
such letter and have found such dollar amounts, percentages and other
financial information to be in agreement with such results, except as
otherwise specified in such letter.
(g) Mayer, Brown, Xxxx & Maw LLP, United States counsel for the
Xx.Xxxxxx Parties, shall have furnished to the Representative their
written opinions, dated the Closing Date, in each case in form and
substance satisfactory to the Representative and their counsel;
(h) Mallesons Xxxxxxx Xxxxxx, Australian counsel for the Issuer Trustee,
shall have furnished to the Representative their written opinion, dated
the Closing Date, in form and substance satisfactory to the
Representative, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon
such matters.
(i) Xxxxxxxx Chance 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.
(j) Counsel to the Currency Swap Provider shall have furnished to the
Representative and the Xx.Xxxxxx Parties their written opinions in form
and substance satisfactory to the Representative.
(k) XxXxx Xxxxxx LLP, special United States counsel to the
Representative and the Underwriters, shall have furnished to the
Representative their written opinion, dated the Closing Date, with respect
to the Preliminary Prospectus and the Final Prospectus and other related
matters as the Representative may reasonably request, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters.
(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-1 Notes shall have been rated "AAA"
by Standard & Poor's Ratings Group, A Division of The XxXxxx-Xxxx
Companies, Inc. ("STANDARD & POORS"), "Aaa" by Xxxxx'x Investors Service,
Inc. ("MOODY'S") and "AAA" by Fitch Australia Pty Ltd ("FITCH" and
together with Moody's and Standard & Poor's, the "RATING AGENCIES") as
evidenced by letters from the Rating Agencies.
(n) The execution and delivery by all parties thereto of the Basic
Documents on or prior to the Closing Date.
18
(o) Each class of the Other Notes will have been validly issued by the
Issuer Trustee upon the directions of the Trust Manager and are
outstanding without any default thereon.
(p) On or prior to the Closing Date the Xx.Xxxxxx Parties and the Issuer
Trustee shall have furnished to the Representative such further
certificates and documents as the Representative shall reasonably request.
(q) On or prior to the Closing Date, the Currency Swap Provider shall
have executed a verification certificate in a form reasonably satisfactory
to the Xx.Xxxxxx Parties, the Issuer Trustee and the Representative.
(r) The applicable dealers shall have purchased the Other Notes pursuant
to the related dealer agreement, among the Issuer Trustee, each Xx.Xxxxxx
Party and the applicable dealers.
7. Indemnification and Contribution.
(a) Each of Xx.Xxxxxx and the Trust Manager, severally, agrees to
indemnify and hold harmless each Underwriter and the Issuer Trustee, its
partners, directors and officers and each person, if any, who controls
such Underwriter within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter or the Issuer
Trustee may become subject, under the Securities Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading or (ii)
any untrue statement or alleged untrue statement of any material fact
contained in the Preliminary Prospectus or the Final Prospectus or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading
(other than, with respect to the Preliminary Prospectus, the blanks and
other items identified in the Preliminary Prospectus as to be completed in
the Final Prospectus), and will reimburse each Underwriter for any legal
or other expenses reasonably incurred by such Underwriter or the Issuer
Trustee in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred;
provided, however, that neither Xx.Xxxxxx nor the Trust Manager will be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information
furnished to Xx.Xxxxxx or the Trust Manager by (i) any Underwriter through
the Representative specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter
consists of the information described as such in subsection (b) below or
(ii) the Currency Swap Provider, for inclusion in each of the Preliminary
Prospectus and the Final Prospectus under the heading "Hedging
Arrangements--The Currency Swaps--Credit
19
Suisse (USA), Inc.," and provided, further, that with respect to any
untrue statement or alleged untrue statement in or omission or alleged
omission from the Preliminary Prospectus (or any amendment or supplement
thereto) or the Final Prospectus (or any amendment or supplement thereto),
as applicable, the indemnity agreement contained in this paragraph (a)
shall not inure to the benefit of any Underwriter, to the extent that the
Initial Preliminary Prospectus (as defined herein), the Preliminary
Prospectus, the Final Prospectus or Corrective Information, as applicable,
was required to be delivered by such Underwriter pursuant to Section 10(k)
in connection with such purchase and any such loss, claim, damage or
liability of such Underwriter results from the fact that there was not
sent or given to such purchaser of Class A-1 Notes a copy of the Initial
Preliminary Prospectus (as defined herein), the Preliminary Prospectus,
the Final Prospectus or Corrective Information, as applicable (and any
amendments or supplements thereto), in accordance with the delivery
requirements set forth in Section 10(k), if the Trust Manager had
previously furnished copies thereof to such Underwriter prior to the time
such Underwriter was required to deliver the Initial Preliminary
Prospectus (as defined herein), the Preliminary Prospectus, the Final
Prospectus or Corrective Information, as applicable, (and any amendments
or supplements thereto), pursuant to Section 10(k).
(b) Each Underwriter will severally, and not jointly, indemnify and hold
harmless Xx.Xxxxxx, the Issuer Trustee and the Trust Manager, their
respective partners, their respective directors and their respective
officers and each person, if any, who controls such company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, against any losses, claims, damages or liabilities to which such
company may become subject, under the Securities Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (A) (i) a breach of any of the
selling restrictions by the applicable Underwriter set forth in Section 10
or (ii) any information conveyed by an Underwriter to any investor which
is not permitted pursuant to the provisions of Section 5.III.(a), or (B)
(i) any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement or arise out of or are based upon
the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading or (ii) any untrue statement or alleged untrue statement of
any material fact contained in the Preliminary Prospectus (or any
amendments or supplements thereto) or the Final Prospectus (or any
amendments or supplements thereto), or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, in each
case, to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Trust Manager by such Underwriter through the Representative specifically
for use therein, and will reimburse any legal or other expenses reasonably
incurred by Xx.Xxxxxx, the Issuer Trustee or the Trust Manager in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Underwriter
consists of the following information in the Preliminary Prospectus and
the Final Prospectus furnished on behalf of each Underwriter: (x) the
20
concession and reallowance percentages appearing in the fourth paragraph
under the heading "Plan of Distribution" and (y) the information contained
in the eighth and ninth paragraphs under the heading "Plan of
Distribution" (the "UNDERWRITER INFORMATION"); provided, however, that the
Underwriters shall not be liable for any losses, claims, damages or
liabilities arising out of or based upon the Trust Manager's failure to
perform its obligations under Section 5.I.(b) of this Agreement.
(c) Promptly after receipt by an indemnified party under this paragraph
(c) of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above, notify the indemnifying party of
the commencement thereof; but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party otherwise than under subsection (a) or (b) above. In
case any such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party),
and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any legal
or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could
have been a party 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 Xx.Xxxxxx Parties and the Issuer Trustee on the one hand
and the Underwriters on the other from the offering of the Class A-1 Notes
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the
relative fault of the Xx.Xxxxxx Parties and the Issuer Trustee on the one
hand and the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities
as well as any other relevant equitable considerations. The relative
benefits received by the Xx.Xxxxxx Parties and the Issuer Trustee on the
one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Xx.Xxxxxx Parties and the Issuer
Trustee bear to the total underwriting
21
discounts and commissions received by the Underwriters. The relative fault
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied
by the Xx.Xxxxxx Parties and the Issuer Trustee or the Underwriters and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of
this subsection (d). In addition, nothing in this Section 7 shall require
any of the Xx.Xxxxxx Parties or any Underwriter to contribute to the
amount paid or payable by any Xx.Xxxxxx Party or any Underwriter, as
applicable, from any losses, claims, damages or liabilities arising out of
or based on information contained in or omitted from the information set
forth in each of the Preliminary Prospectus and the Final Prospectus under
the heading "Hedging Arrangements--The Currency Swaps--Credit Suisse
(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 Class A-1 Notes underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of a Xx.Xxxxxx Party and the Issuer Trustee under
this Section shall be in addition to any liability which such Xx.Xxxxxx
Party and the Issuer Trustee may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Securities Act; and the obligations
of the Underwriters under this Section shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of a
Xx.Xxxxxx Party or the Issuer Trustee, to each officer of a Xx.Xxxxxx
Party or the Issuer Trustee who has signed the Registration Statement and
to each person, if any, who controls a Xx.Xxxxxx Party or the Issuer
Trustee within the meaning of the Securities Act.
(f) To the extent that any payment of damages by Xx.Xxxxxx or the Trust
Manager pursuant to subsection 7(a) above is determined to be a payment of
damages pursuant to paragraph 15 of Guidance Note AGN 120.3- "Purchase and
Supply of Assets (including Securities issued by SPVs)", being a Guidance
Note to Prudential Standard APS 120- "Funds Management and Securitisation"
or any successor thereto such payment shall be subject to the terms
therein (or the terms of any equivalent provision in any replacement of
Prudential Standard APS 120).
22
(g) The remedies provided in this Section 7, are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Class A-1 Notes hereunder on the Closing Date and
the aggregate principal amount of Class A-1 Notes that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount of Class A-1 Notes that the Underwriters are
obligated to purchase on such Closing Date, the Representative may make
arrangements satisfactory to the Trust Manager for the purchase of such Class
A-1 Notes by other persons, including any of the Underwriters, but if no such
arrangements are made by such Closing Date, the non-defaulting Underwriters
shall be obligated severally, and not jointly, in proportion to their respective
commitments hereunder, to purchase the Class A-1 Notes that such defaulting
Underwriters agreed but failed to purchase on such Closing Date. If any
Underwriter or Underwriters so default and the aggregate principal amount of
Class A-1 Notes with respect to which such default or defaults occur exceeds 10%
of the total principal amount of Class A-1 Notes that the Underwriters are
obligated to purchase on such Closing Date and arrangements satisfactory to the
Representative and the Trust Manager for the purchase of such Class A-1 Notes by
other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter
or the Trust Manager, except as provided in Section 9. As used in this
Agreement, the term "UNDERWRITER" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Xx.Xxxxxx Parties, the Issuer Trustee or their respective officers and of the
several Underwriters set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation, or statement as to
the results thereof, made by or on behalf of any Underwriter, the Xx.Xxxxxx
Parties, the Issuer Trustee or any of their respective representatives, officers
or directors or any controlling person, and will survive delivery of and payment
for the Class A-1 Notes. If this Agreement is terminated pursuant to Section 8
or if for any reason the purchase of the Class A-1 Notes by the Underwriters is
not consummated, each Xx.Xxxxxx Party, severally in respect of itself, shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 5 and the respective obligations of such Xx.Xxxxxx Party, the Issuer
Trustee and the Underwriters pursuant to Section 7 shall remain in effect, and
if any Class A-1 Notes have been purchased hereunder the representations and
warranties in Section 2 and all obligations under Section 6 shall also remain in
effect. If the purchase of the Class A-1 Notes by the Underwriters is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 8 or the occurrence of any event specified in
clause (iii), (iv), (v), (vi) or (vii) of Section 6(b), each Xx.Xxxxxx Party,
severally, will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Class A-1 Notes.
10. Selling Restrictions.
23
(a) No prospectus supplement, prospectus or other disclosure document in
relation to any Class A-1 Notes has been lodged with the Australian
Securities and Investments Commission or the Australian Stock Exchange
Limited. The Class A-1 Notes may not, in connection with their initial
distribution, be offered or sold, directly or indirectly, in the
Commonwealth of Australia, its territories or possessions, or to any
resident of Australia. Each Underwriter severally, and not jointly,
represents and agrees that it:
(1) has not, directly or indirectly, offered for issue or sale or
invited applications for the issue of or for offers to purchase nor
has it sold, the Class A-1 Notes;
(2) will not, directly or indirectly, offer for issue or sale or
invited applications for the issue of or for offers to purchase nor
will it sell the Class A-1 Notes; and
(3) has not distributed and will not distribute any draft,
preliminary or definitive prospectus, or any advertisement or other
offering material relating to the Class A-1 Notes,
in the Commonwealth of Australia, its territories or possessions ("AUSTRALIA")
unless:
(1) the amount payable for the Class A-1 Notes on acceptance of
the offer by each offeree or invitee is a minimum amount of
A$500,000 (or its equivalent in another currency) (disregarding
amounts, if any, lent by Crusade Management Pty Limited or other
person offering the Class A-1 Notes or any associate of them, which
will also include for this purpose the Issuer Trustee) or the offer
or invitation is otherwise an offer or invitation for which no
disclosure is required to be made under Part 6D.2 of the
Corporations Xxx 0000 (Cth) (the "CORPORATIONS ACT") as then in
effect and the Corporations Regulations made under the Corporations
Act as then in effect; and
(2) the offer, invitation or distribution complies with all
applicable laws, regulations and directives in relation to the
offer, invitation or distribution and does not require any document
to be lodged with the Australian Securities and Investments
Commission or the Australian Stock Exchange Limited.
(b) Each Underwriter severally, and not jointly, agrees
that, in connection with the primary distribution of the Class
A-1 Notes, it will not sell any Class A-1 Notes to any person
if, at the time of such sale, the employees of the Underwriter
aware of, or involved in, the sale actually knows (but without
an obligation on such Underwriter to make any inquiry) or has
reasonable grounds to suspect, that as a result of such sale,
such Class A-1 Notes or any interest in such Class A-1 Notes
were being, or would later be acquired (directly or
indirectly) by an Offshore Associate of the Issuer Trustee
(other than in the capacity of a dealer, manager or
Underwriter in relation to a placement of the Class A-1 Notes
or in the capacity of a clearing house, custodian, funds
manager or responsible entity of an Australian registered
scheme).
24
For purposes of this Section 10 an "OFFSHORE ASSOCIATE" of the Issuer Trustee
means an "associate" within the meaning of Section 128F of the Tax Act
(including for this purpose, any associates of Crusade Management Limited as a
beneficiary of the Trust) that is either:
(1) a non resident of Australia that does not acquire the Class
A-1 Notes in carrying on business at or through a permanent
establishment in Australia; or
(2) a resident of Australia that acquires the Class A-1 Notes in
carrying on a business at or through a permanent establishment
outside Australia.
Notwithstanding the foregoing, for purposes of this Section 10, an Underwriter
will be considered to have actual knowledge or reasonable grounds to suspect
that an entity is an Offshore Associate of the Issuer Trustee only if that
entity is identified on the lists that are to be provided to the Representative
by the Issuer Trustee and Xx.Xxxxxx Bank (collectively, the "LIST").
(c) Each Underwriter severally, and not jointly, agrees that it must
offer the Class A-1 Notes for which it subscribes for sale within 30 days
of the issue of those Class A-1 Notes. Such offer must only be by the
Underwriter offering those Class A-1 Notes for sale to at least 10
persons, each an "Investor", each of whom must be:
(1) carrying on a business of providing finance, or investing or
dealing in securities in the course of operating in the financial
markets; and
(2) not known or reasonably suspected by the Underwriter to be an
associate within the meaning of Section 128F of the Tax Act of any
of the others.
(d) Each Underwriter severally, and not jointly, agrees that
it will provide the Issuer Trustee (within five Business Days
of the offer of such Class A-1 Notes by it) a written
statement which sets out the details of the relevant offer.
(e) Each Underwriter severally, and not jointly, agrees to
co-operate with reasonable requests from the Issuer Trustee
for information for the purposes of assisting the Issuer
Trustee to demonstrate that the public offer test under
Section 128F of the Tax Act has been satisfied, provided that
no Underwriter shall be obliged to disclose:
(1) the identity of the purchaser of any Class A-1 Note,
(2) any information from which such identity might/would be
capable of being ascertained,
(3) any information the disclosure of which would be contrary to
or prohibited by any relevant law, regulation or directive, or
25
(4) any information or documentation after a period of 4 years
from the lodgment of the income tax return by the Issuer Trustee for
the financial year ending 30 September 2006.
(f) Each Underwriter severally, and not jointly, agrees that:
(1) it has complied with and will comply with all applicable
provisions of the Financial Services and Markets Act 2000 (the
"FSMA") with respect to anything done by it in relation to the Class
A-1 Notes in, from or otherwise involving the United Kingdom; and
(2) it has only communicated or caused to be communicated, and
will only communicate or cause to be communicated, an invitation or
inducement to engage in investment activity (within the meaning of
Section 21 of the FSMA) received by it in connection with the issue
or sale of any Class A-1 Notes in circumstances in which Section
21(1) of the FSMA does not apply to the Issuer Trustee.
(g) Each Underwriter severally, and not jointly, acknowledges that (1)
the Preliminary Prospectus and the Final Prospectus have not been and will
not be registered as a prospectus with the Monetary Authority of Singapore
and (2) the Class A-1 Notes are offered pursuant to exemptions invoked
under the Securities and Futures Act, Chapter 289 of Singapore (the
"SECURITIES AND FUTURES ACT"). Accordingly, each Underwriter severally,
and not jointly, represents and agrees that neither the Preliminary
Prospectus and the Final Prospectus nor any other document or material in
connection with the offer or sale, or invitation for subscription or
purchase of the Class A-1 Notes will be distributed or circulated by it
nor will the Class A-1 Notes be offered or sold, or be made the subject of
an invitation for subscription or purchase, whether directly or indirectly
in Singapore other than pursuant to, and in accordance with the conditions
of, an exemption invoked under Sub-division (4) of Division 1 of Part XIII
of or other applicable provision of the Securities and Futures Act and to
persons to whom any Class A-1 Notes may be offered or sold under any such
exemptions.
(h) Each Underwriter severally, and not jointly, agrees that:
(1) it has not offered or sold and will not offer or sell in Hong
Kong, by means of any document, any Class A-1 Notes other than:
(A) to persons whose ordinary business it is to buy or sell
shares or debentures (whether as principal or agent) or to
"professional investors" as defined in the Securities and Futures
Ordinance (Cap. 571) of Hong Kong and any rules made under that
Ordinance; or
(B) in other circumstances which do not result in the
document being a "prospectus" as defined in the Companies Ordinance
(Cap. 32) of Hong Kong or
26
which do not constitute an offer to the public within the meaning of
the Ordinance; and
(2) it has not issued or had in its possession for the purposes of
issue, and will not issue or have in its possession for the purposes
of issue, whether in Hong Kong or elsewhere, any advertisement,
invitation or document, relating to the Class A-1 Notes, which is
directed at, or the contents of which are likely to be accessed or
read by, the public of Hong Kong (except if permitted to do so under
the securities laws of Hong Kong) other than with respect to Class
A-1 Notes which are or are intended to be disposed of only to
persons outside Hong Kong or only to "professional investors" as
defined in the Securities and Futures Ordinance (Cap. 571) of Hong
Kong and any rules made under that ordinance.
(i) Each Underwriter severally, and not jointly, agrees that neither the
Class A-1 Notes nor the Preliminary Prospectus and the Final Prospectus
have been or will be approved or registered in the administrative
registries of the Spanish Securities Markets Commission (Comision Nacional
del Maercado de Valores). Accordingly, the Class A-1 Notes may not and
will not be sold, offered or distributed in Spain except in circumstances
which do not constitute a public offer of securities in Spain within the
meaning artcicle 30-bis of the Spanish Securities Market Law of 28 July
1988 (Ley 00/0000, xx 00 xxxxx, xxx Xxxxxxx xx Xxxxxxx) as amended and
restated, and supplemental rules enacted thereunder.
(j) Each Underwriter severally, and not jointly, acknowledges that no
action has been or will be taken to permit a public offering of the Class
A-1 Notes, or possession or distribution of the Preliminary Prospectus and
the Final Prospectus or any other offering material, in any country or
jurisdiction where action for that purpose is required. Each Underwriter
severally, and not jointly, agrees that: the distribution of the
Preliminary Prospectus and the Final Prospectus and the offering and sale
of the Class A-1 Notes in certain other foreign jurisdictions may be
restricted by law. The Class A-1 Notes may not be offered or sold,
directly or indirectly, and neither the Preliminary Prospectus and the
Final Prospectus nor any form of application, advertisement or other
offering material may be issued, distributed or published in any country
or jurisdiction, unless permitted under all applicable laws and
regulations. Each Underwriter agrees severally, and not jointly, to comply
with all applicable securities laws and regulations in each jurisdiction
in which it purchases, offers, sells or delivers Class A-1 Notes or
possesses or distributes the Preliminary Prospectus and the Final
Prospectus or any other offering material.
(k) Each Underwriter severally, and not jointly, acknowledges and agrees
that it shall convey:
(1) the Initial Preliminary Prospectus Supplement together
with the Base Prospectus (together, the "INITIAL PRELIMINARY
PROSPECTUS") to each person who purchases a Class A-1 Note (or
an interest therein) from such Underwriter at least 48 hours
prior to the Applicable Time (as defined herein);
27
(2) the Preliminary Prospectus to each person who purchases
a Class A-1 Note (or interest therein) from such Underwriter
at least three (3) hours prior to the Applicable Time;
(3) the Final Prospectus in accordance with Section
5.III.(g) hereof; and
(4) any Corrective Information prepared and delivered in
accordance with Section 5.III.(i) so that such Corrective
Information will be conveyed for purposes of Rule 159 of the
Securities Act.
As used herein, "APPLICABLE TIME" shall mean 9:59 A.M. Eastern time on
September 15, 2006 (which such Underwriter has informed the Xx.Xxxxxx
Parties is a time prior to the time of the first Contract of Sale of the
Class A-1 Notes by an Underwriter).
11. Certain Matters Relating to the Issuer Trustee. The Issuer Trustee enters
into this Agreement only in its capacity as trustee of the Trust and in no other
capacity. A liability arising under or in connection with this Agreement or the
Trust is limited to and can be enforced against the Issuer Trustee only to the
extent to which it can be satisfied out of assets and property of the Trust
which are available to satisfy the right of the Issuer Trustee to be exonerated
or indemnified for such liability. This limitation of the Issuer Trustee's
liability applies despite any other provisions of this Agreement and extends to
all liabilities and obligations of the Issuer Trustee in any way connected with
any representation, warranty, conduct, omission, agreement or Transaction
related to this Agreement or the Trust.
The parties other than the Issuer Trustee may not xxx the Issuer Trustee
in any capacity other than as trustee of the Trust or seek the appointment of a
receiver (except under the Security Trust Deed) or a liquidator, an
administrator or any other similar person to the Issuer Trustee or prove in any
liquidation, administration or arrangements of or affecting the Issuer Trustee.
The provisions of this Section 11 shall not apply to any obligation or
liability of the Issuer Trustee to the extent that it is not satisfied because
under a Basic Document or by operation of law there is a reduction in the extent
of the Issuer Trustee's indemnification or exoneration out of the assets of the
Trust as a result of the Issuer Trustee's fraud, negligence or Default (as
defined in the Master Trust Deed).
It is acknowledged that the Trust Manager, the Approved Seller, the
Servicer, the Custodian, the Currency Swap Provider, the Swap Providers, the
Note Trustee, the Principal Paying Agent, the other Paying Agents, the Note
Registrar, the Calculation Agent, and the Agent Bank (each, a "RELEVANT PARTY")
are responsible under the Transaction Documents (as defined in the Master Trust
Deed) for performing a variety of obligations relating to the Trust. No act or
omission of the Issuer Trustee (including any related failure to satisfy its
obligations under the Transaction Documents) will be considered fraud,
negligence or Default (as defined in the Master Trust Agreement) of the Issuer
Trustee for the purpose of this Agreement to the extent to which the act or
omission was caused or contributed to by any failure by any Relevant Party or
any other person who has been delegated or appointed by the Issuer Trustee in
accordance with the Transaction Documents (as defined in the Master Trust Deed)
to fulfill its obligations relating to the Trust or by any other act or omission
of a Relevant Party or by any other such person.
28
12. Consent to Jurisdiction; Appointment of Agent to Accept Service of
Process; Satisfaction of Obligations in United States Dollars.
Each of the Xx.Xxxxxx Parties and the Issuer Trustee hereby submits to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby. Each of the
Xx.Xxxxxx Parties and the Issuer Trustee irrevocably appoints CT Corporation,
000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent
in the Borough of Manhattan in The City of New York upon which process may be
served in any such suit or proceeding, and agrees that service of process upon
such agent, and written notice of said service to it by the person serving the
same to the address provided in Section 17, shall be deemed in every respect
effective service of process upon it in any such suit or proceeding. Each of the
Xx.Xxxxxx Parties and the Issuer Trustee further agrees to take any and all
action as may be necessary to maintain such designation and appointment of such
agent in full force and effect for so long as the Class A-1 Notes remain
outstanding.
The obligation of any of the Xx.Xxxxxx Parties or the Issuer Trustee in
respect of any sum due to any Underwriter shall, notwithstanding any judgment in
a currency other than United States dollars, not be discharged until the first
business day, following receipt by such Underwriter of any sum adjudged to be so
due in such other currency, on which (and only to the extent that) such
Underwriter may in accordance with normal banking procedures purchase United
States dollars with such other currency; if the United States dollars so
purchased are less than the sum originally due to such Underwriter hereunder,
each of the Xx.Xxxxxx Parties and the Issuer Trustee agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Underwriter
against such loss.
13. Foreign Taxes. All payments to be made by the Issuer Trustee and any
Xx.Xxxxxx Party hereunder shall be made without withholding or deduction for or
on account of any present or future taxes, duties or governmental charges
whatsoever unless the Issuer Trustee or such Xx.Xxxxxx Party, as applicable, is
compelled by law to deduct or withhold such taxes, duties or charges. In that
event, the Issuer Trustee or such Xx.Xxxxxx Party, as applicable, shall pay such
additional amounts as may be necessary in order that the net amounts received
after such withholding or deduction shall equal the amounts that would have been
received if no withholding or deduction had been made.
14. Waiver of Immunities. To the extent that any of the Issuer Trustee and
Xx.Xxxxxx Parties or any of their properties, assets or revenues may have or may
hereafter become entitled to, or have attributed to it, any right of immunity,
on the grounds of sovereignty or otherwise, from any legal action, suit or
proceeding, from the giving of any relief in any respect thereof, from setoff or
counterclaim, from the jurisdiction of any court, from service of process, from
attachment upon or prior to judgment, from attachment in aid of execution of
judgment, or from execution of judgment, or other legal process or proceeding
for the giving of any relief or for the enforcement of any judgment, in any
jurisdiction in which proceedings may at any time be commenced, with respect to
its obligations, liabilities or any other matter under or arising out of or in
connection this Agreement, the Issuer Trustee and the Xx.Xxxxxx Parties, as
applicable, hereby irrevocably and unconditionally waives, and agrees not to
plead or claim, any such immunity and consents to such relief and enforcement.
29
15. Judgment Currency. If any judgment or order in any legal proceeding
against any of the Issuer Trustee and the Xx.Xxxxxx Parties is given or made for
any amount due hereunder and such judgment or order is expressed and paid in a
currency (the "JUDGMENT CURRENCY") other than United States dollars and there is
any variation as between (i) the rate of exchange (the "JUDGMENT RATE") at which
the United States dollar amount is converted into Judgment Currency for the
purpose of such judgment or order, and (ii) the rate of exchange (the "MARKET
RATE") at which the person to whom such amounts is paid (the "PAYEE") is able to
purchase United States dollars with the amount of the Judgment Currency actually
received by the holder, then the difference, expressed in United States dollars,
between such amount calculated at the Judgment Rate and such amount calculated
at the Market Rate shall be indemnified (a) if negative by the Issuer Trustee
and the Xx.Xxxxxx Parties, as applicable, to the Payee and (b) if positive by
the Payee to the Issuer Trustee and the Xx.Xxxxxx Parties, as applicable. The
foregoing indemnity shall constitute a separate and independent obligation of
the Issuer Trustee, the Trust Manager and Xx.Xxxxxx or the Payee, as the case
may be, and shall continue in full force and effect notwithstanding any such
judgment or order as aforesaid. The term "RATE OR EXCHANGE" shall include any
premiums and costs of exchange payable in connection with the purchase of, or
conversion into, the relevant currency.
16. Absence of Fiduciary Relationship. Each of the Trust Manager and the
Issuer Trustee acknowledges and agrees that:
(a) the Representative has been retained solely to act as
underwriter in connection with the sale of the Class A-1 Notes and
that no fiduciary, advisory or agency relationship between either
the Trust Manager or the Issuer Trustee, on the one hand, and the
Representative, on the other hand, has been created in respect of
any of the transactions contemplated by this Agreement, irrespective
of whether the Representative has advised or is advising the Trust
Manager and/or the Issuer Trustee on other matters;
(b) the price of the Class A-1 Notes set forth in this Agreement
was established by the Representative and the Underwriters following
discussions and arms-length negotiations with the Trust Manager, and
the Trust Manager and the Issuer Trustee are capable of evaluating
and understanding and understand and accept the terms, risks and
conditions of the transactions contemplated by this Agreement;
(c) they have been advised that the Representative and its
affiliates are engaged in a broad range of transactions which may
involve interests that differ from those of the Trust Manager and
the Issuer Trustee and that the Representative has no obligation to
disclose such interests and transactions to the Trust Manager and
the Issuer Trustee by virtue of any fiduciary, advisory or agency
relationship; and
(d) they severally waive, to the fullest extent permitted by law,
any claims they may have against the Representative for breach of
fiduciary duty or alleged breach of fiduciary duty and agree that
the Representative shall have no liability (whether direct or
indirect) to the Trust Manager or the Issuer Trustee in respect
30
of such a fiduciary duty claim or to any person asserting a
fiduciary duty claim on behalf of or in right of the Trust Manager
and/or the Issuer Trustee, including stockholders, employees or
creditors of the Trust Manager or the Issuer Trustee.
17. Notices. All communications hereunder will be in writing and, if sent to
the Underwriters, will be mailed, delivered or telegraphed and confirmed to the
Representative at Eleven Madison Avenue, New York, New York 10010, Attention:
Legal (Facsimile No. 646 424-9416); if sent to the Trust Manager will be mailed,
delivered or telegraphed and confirmed to the Trust Manager at c/o Company
Secretary, Xxxxx 0, 0-00 Xxxxxxxxxx Xxxxxx, Xxxxxxx XXX 0000 (Facsimile No.
612-9236-1899), Attention: Manager Securitisation if sent to the Issuer Trustee,
mailed, delivered or telegraphed and confirmed to the Issuer Trustee at Xxxxx
00, Xxxxx Xxxxx, 000 Xxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx 0000 (Facsimile No.
612-9221-7870), Attention: Manager, Securitisation; and if sent to Xx.Xxxxxx,
mailed, delivered or telegraphed and confirmed to Xx.Xxxxxx at Xxxxx 0, 0-00
Xxxxxxxxxx Xxxxxx, Xxxxxxx XXX 0000 (Facsimile No. 612-9236-1899), Attention:
Manager Securitisation; provided, however, that any notice to an Underwriter
pursuant to Section 7 will be mailed, delivered or telegraphed and confirmed to
such Underwriter.
18. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder.
19. Representation of Underwriters. The Representative will act for the
several Underwriters in connection with this financing, and any action under
this Agreement, or such other agreements as are necessary to further the
transactions contemplated hereby, taken by the Representative will be binding
upon all the Underwriters.
20. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
21. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
[signature pages follow]
31
If the foregoing is in accordance with the Representative's understanding
of our agreement, kindly sign and return the enclosed counterparts hereof,
whereupon it will become a binding agreement between the parties listed below in
accordance with its terms.
Very truly yours,
CRUSADE MANAGEMENT LIMITED
By:/s/ Xxxxxxx Xxxxxx See Bowan________
Name: Xxxxxxx Xxxxxx See Xxxxx
Title: Attorney
XX.XXXXXX BANK LIMITED
By:/s/ Xxxxxxx Xxxxxx See Bowan________
Name: Xxxxxxx Xxxxxx See Xxxxx
Title: Attorney
(Crusade Global Trust No. 2 of 2006 - Underwriting Agreement)
PERPETUAL TRUSTEES
CONSOLIDATED LIMITED
By:/s/ Xxxxxx Ruver____________________
Name: Xxxxxx Ruver
Title: Manager
(Crusade Global Trust No. 2 of 2006 - Underwriting Agreement)
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the day first above written
CREDIT SUISSE SECURITIES (USA) LLC,
acting on behalf of itself and as the Representative
of the several Underwriters
By:/s/ Xxxxxx Hazelwood____________
Name: Xxxxxx Xxxxxxxxx
Title: Managing Director
(Crusade Global Trust No. 2 of 2006 - Underwriting Agreement)
SCHEDULE A
PRINCIPAL AMOUNT OF CLASS A-1
Underwriter NOTES TO BE PURCHASED
--------------------------------------- ---------------------------------------
Credit Suisse Securities (USA) LLC U.S. $600,000,000
Deutsche Bank Securities Inc. U.S. $600,000,000
Total U.S. $1,200,000,000
SCHEDULE B
REVISED INFORMATION
FORM OF PRICING BLOOMBERG SCREEN
CRUSADE No. 2 of 2006 - USD/EUR/AUD Aussie RMBS **PRICED**
Jt Leads: CS/DBSI (A1 & A2) with SGB as Jt lead on A3, B, C
Class Size(m) Rating (S/M/F) WAL Bench Level DollarPX
A1 USD1,200 AAA/Aaa/AAA 2.83 3M Libor +[__]bps 100
A2 EUR450 AAA/Aaa/AAA 2.83 3M Euribor +[__]bps 100
A3 AUD600 AAA/Aaa/AAA 2.75 1M BBSW +[__]bps 100
B AUD53.2 AA/--/AA 4.97 3M BBSW +[__]bps [ ]
C AUD24.3 A+/--/AA- 4.89 3M BBSW +[__]bps [ ]
A1 - SEC Registered A2/A3 - ASX Listed
Expected Settlement: 21 Sept, 2006
Disclaimer:
The issuer has filed a registration statement (including a prospectus) with the
SEC for the offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the issuer
and this offering. You may get these documents for free by visiting XXXXX on the
SEC Web site at xxx.xxx.xxx. Alternatively, Credit Suisse will arrange to send
you the prospectus if you request it by calling toll free 1-800-221-1037.
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO
THIS MESSAGE AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES HAVE
BEEN AUTOMATICALLY GENERATED AS A RESULT OF THIS MESSAGE HAVING BEEN SENT VIA
BLOOMBERG OR ANOTHER SYSTEM.
SCHEDULE C
INITIAL INFORMATION
CRUSADE No. 2 of 2006 ***ANNOUNCEMENT*** - USD/EUR/AUD Aussie RMBS Jt Leads:
CS/DBSI (A1 & A2) with SGB as Jt lead on A3, B, C
Class Size(m) Rating (S/M/F) WAL Bench Px Guid Status
A1 USD[1,000] AAA/Aaa/AAA 2.83 3M Libor TBA
A2 EUR[400] AAA/Aaa/AAA 2.83 3M Euribor TBA
A3 AUD[600] AAA/Aaa/AAA 2.75 1M BBSW TBA
B AUD[46.3] AA/--/AA 4.97 3M BBSW TBA
C AUD[21.2] A+/--/AA- 4.89 3M BBSW TBA
A1 - SEC Registered A2/A3 - ASX Listed
Roadshowing: US 11 - 14 Sept
Timing: Px Guidance out Tuesday AM
Expected Pricing: 15 Sept, 2006
Expected Settlement: 21 Sept, 2006
Disclaimer:
The issuer has filed a registration statement (including a prospectus) with the
SEC for the offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the issuer
and this offering. You may get these documents for free by visiting XXXXX on the
SEC Web site at xxx.xxx.xxx. Alternatively, Credit Suisse will arrange to send
you the prospectus if you request it by calling toll free 1-800-221-1037.
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO
THIS MESSAGE AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES HAVE
BEEN AUTOMATICALLY GENERATED AS A RESULT OF THIS MESSAGE HAVING BEEN SENT VIA
BLOOMBERG OR ANOTHER SYSTEM.
CRUSADE GLOBAL TRUST NO. 2 OF 2006
Form of Certificate pursuant to section 6(c) of the Underwriting Agreement
Date: [__________] [ ], 2006
Credit Suisse Securities (USA) LLC
as Representative of the several Underwriters,
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
I hereby certify that, to the best of my knowledge after reasonable
investigation:
(i) the representations and warranties of Perpetual Trustees
Consolidated Limited, in its capacity as trustee of the Crusade
Global Trust No. 2 of 2006 (the "Issuer Trustee"), in the
Underwriting Agreement dated [__________] [ ], 2006 among Credit
Suisse Securities (USA) LLC, as representative (the
"Representative") of the Underwriters listed in Schedule A to that
agreement (the "Underwriters"), Crusade Management Limited, the
Issuer Trustee and Xx.Xxxxxx Bank Limited (the "Underwriting
Agreement") are true and correct; and
(ii) the Issuer Trustee has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied under the
Underwriting Agreement.
By: ________________________________
Name:
Title:
