EXHIBIT 1.1
FORM OF UNDERWRITING AGREEMENT
US$[__________] CLASS [A-1] MORTGAGE-BACKED FLOATING RATE NOTES DUE 20[__]
PERPETUAL TRUSTEES CONSOLIDATED LIMITED
CRUSADE GLOBAL TRUST NO. [__] OF 20[__]
UNDERWRITING AGREEMENT
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[Underwriter Name]
[Address]
[Underwriter Name]
[Address]
[______] [__], 20[__]
Ladies and Gentlemen:
1. Introduction.
Perpetual Trustees Consolidated Limited, ABN 81 004 029 841, a limited
liability public company under the Corporations Act of Australia and registered
in New South Wales ("PERPETUAL"), acting in its capacity as trustee of the
Crusade Global Trust No. [__] of 20[__] (the "TRUST", and Perpetual in that
capacity being the "ISSUER TRUSTEE"), acting at the direction of Crusade
Management Limited, ABN 90 072 715 916, as manager of the Trust (the "TRUST
MANAGER"), proposes to sell to the several Underwriters listed in Schedule I to
this Agreement (the "UNDERWRITERS"), US$[_______] aggregate principal amount of
Class [A-1] Mortgage-Backed Floating Rate Notes due 20[__] (the "CLASS [A-1]
NOTES or the "OFFERED NOTES") issued by the Issuer Trustee. The Trust Manager is
a wholly-owned subsidiary of ▇▇.▇▇▇▇▇▇ Bank Limited, ABN 92 055 513 070
("▇▇.▇▇▇▇▇▇").
The Offered Notes will be secured by the assets of the Trust in accordance
with the Security Trust Deed. The assets of the Trust means all assets and
property, real and personal, (including choses in action and other rights),
tangible and intangible, present or future, held by the Issuer Trustee from time
to time, as trustee of the Trust including, among other things: (i) rights
specified in the Security Trust Deed and the Note Trust Deed in a pool of
variable and fixed rate residential housing loans (the "HOUSING LOANS") (such
rights, the "HOUSING LOAN RIGHTS") and certain moneys received under the Housing
Loans after [______] [__], 20[__] (the "CUT-OFF DATE"), (ii) the benefits of all
covenants, agreements, undertakings, representations, warranties and other
choses in action in favor of the Issuer Trustee under the Transaction Documents
(as defined in the Master Trust Deed), (iii) the Collection Account and (iv) all
other
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assets that comprise the charged property. The Housing Loans will be sold to the
Issuer Trustee by ▇▇.▇▇▇▇▇▇ (in such capacity, the "SELLER") and will be
serviced for the Issuer Trustee by ▇▇.▇▇▇▇▇▇ (in such capacity, the "SERVICER").
The Trust was created pursuant to a master trust deed dated March 14, 1998,
as amended from time to time (the "MASTER TRUST DEED") between the Trust Manager
and Perpetual and a supplementary terms notice dated [______] [__], 20[__] (the
"SUPPLEMENTARY TERMS NOTICE"), between ▇▇.▇▇▇▇▇▇ (as Seller and Servicer), the
Trust Manager and the Issuer Trustee, which describes, among other things, the
Trust and the underlying cash flow relating to the Offered Notes. The Offered
Notes will be issued pursuant to an Note Trust Deed dated [______] [__], 20[__]
among the Issuer Trustee, the Trust Manager and [________], (the "NOTE
TRUSTEE").
The Class [A-1] Notes will be issued in an aggregate principal amount of
US$[_______] which is equal to approximately [___]% of the aggregate balance of
the Housing Loans as of the Cut-Off Date. The Class [A-2] Notes will be issued
in an aggregate principal amount of A$[_______] which is equal to approximately
[__]% of the aggregate balance of the Housing Loans as of the Cut-Off Date. The
Class [A-3] Notes will be issued in an aggregate principal amount of
(euro)[_______] which is equal to approximately [___]% of the aggregate balance
of the Housing Loans as of the Cut-Off Date. The Class [B] Notes will be equal
to approximately [____]% of the aggregate principal amount of the Housing Loans
as of the Cut-Off Date. The Class [C] Notes will be equal to approximately
[____]% of the aggregate principal amount of the Housing Loans as of the Cut-Off
Date. The Class [A-2] Notes, the Class [B] Notes and the Class [C] Notes are
collectively referred to as the "A$ SECURITIES." The Class [A-3] Notes are
referred to as the "(EURO) SECURITIES." The Offered Notes, the Class [A-3] Notes
and the A$ Securities are collectively referred to as the "NOTES."
The Trust Manager has prepared and filed with the Securities and Exchange
Commission (the "SEC") in accordance with the provisions of the Securities Act
of 1933, as amended, and the rules and regulations of the SEC thereunder
(collectively, the "SECURITIES ACT"), a registration statement (Reg. No.
333-128920), including a prospectus, relating to the Offered Notes. 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
Offered Notes and the offering thereof (the "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 "PROSPECTUS". Any
preliminary form of the Prospectus Supplement to be filed pursuant to Rule
424(b) is referred to as a "PRELIMINARY PROSPECTUS SUPPLEMENT" and, together
with the Base Prospectus, and as amended or supplemented if the Trust Manager
shall have furnished any amendments or supplements thereto, a "PRELIMINARY
PROSPECTUS."
When used in this Agreement, "BASIC DOCUMENTS" shall mean collectively: the
Master Trust Deed (in so far as it applies to the Trust), the Supplementary
Terms Notice, the Servicing Agreement, the ?Notes?, the Security Trust Deed, the
Note Trust Deed, the Agency Agreement, the ?Dealer Agreement, the Subscription?
Agreement, the Basis Swap Agreement, the ?Redraw
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Facility Agreement, the Currency Swap Agreement, the Fixed-Floating Rate Swap
Agreement, the ?Mortgage Insurance Policy, any other document which is agreed to
by the Trust Manager and the Issuer Trustee to be a Transaction Document in
relation to the Trust under [clause 1.6(a)(i)] of the Supplementary Terms
Notice, the ?DTC Letter of Representations, any undertakings given to the
Euroclear System ("EUROCLEAR") or Clearstream Banking, societe anonyme
("CLEARSTREAM, LUXEMBOURG") in connection with the Book Entry Notes, and any
other contract, agreement or instrument [which is specified in the draft
settlement agenda dated [______] [__], 20[__] prepared by Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
in connection with the issuance and sale of the Notes]. ▇▇.▇▇▇▇▇▇ and the Trust
Manager are each a "▇▇.▇▇▇▇▇▇ PARTY" and collectively are referred to as the
"▇▇.▇▇▇▇▇▇ PARTIES". "EFFECTIVE DATE" shall mean the earlier of the date on
which the Prospectus Supplement is first used and the time of the first Contract
of Sale to which such Prospectus Supplement relates. The initial effective date
of the Registration Statement was within three years of the Closing Date. "RULE
424" refers to such rule under the Securities Act.
In addition, the following terms shall have the following meanings:
(i) "ABS INFORMATIONAL AND COMPUTATIONAL MATERIALS" shall have the
meaning given such term in Item 1101 of Regulation AB.
(ii) "APPROVED OFFERING MATERIALS" means the Preliminary Prospectus
that ▇▇.▇▇▇▇▇▇ or the Trust Manager identifies in writing to the
Underwriters as "Approved Offering Materials."
(iii) "CONTRACT OF SALE" has the same meaning as in Rule 159 of the
Securities Act Regulations and all SEC guidance relating to Rule 159.
(iv) "FREE WRITING PROSPECTUS" shall have the meaning given such term
in Rules 405 and 433 of the Securities Act Regulations.
(v) "ISSUER FREE WRITING PROSPECTUS" shall have the meaning given such
term in Rule 433 of the Securities Act Regulations.
(vi) "ISSUER INFORMATION" shall mean any "issuer information" as
defined in Rule 433(h) of the Securities Act Regulations and footnote
271 of SEC Release No. 33-8591 (Securities Offering Reform) and
identified by the Trust Manager as Issuer Information and relating to
the Offered Notes or the offering thereof.
(vii) "PERMITTED ADDITIONAL MATERIALS" shall mean information that is
not ABS Informational and Computational Materials and (x) that are
referred to in Section 6(V)(f)(iii) so long as any Issuer Information
provided by the Underwriter pursuant to Section 6(V)(f)(iii) is
limited to information included within the definition of ABS
Informational and Computational Materials, (y) that constitute Offered
Note price, yield, weighted average life, subscription or allocation
information, or a trade confirmation, or (z) otherwise with respect to
which the Trust Manager
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has provided written consent to the Underwriter to include in a Free
Writing Prospectus.
(viii) "POOL INFORMATION" means the information furnished by magnetic
tape, diskette or any other computer readable format, or in writing to
the Underwriter by any ▇▇.▇▇▇▇▇▇ Party regarding the Housing Loans.
(ix) "UNDERWRITER DERIVED INFORMATION" shall refer to information of
the type described in clause (5) of footnote 271 of SEC Release No.
33-8591 (Securities Offering Reform) when prepared by the
Underwriters, including traditional computational and analytical
materials prepared by the Underwriters.
(x) "UNDERWRITER FREE WRITING PROSPECTUS" shall mean all Free Writing
Prospectuses prepared by or on behalf of the Underwriters other than
any Underwriter Prepared Issuer FWP, including any Permitted
Additional Materials.
(xi) "UNDERWRITER PREPARED ISSUER FWP" shall mean any Free Writing
Prospectus prepared by or on behalf of the Underwriter that contains
any Issuer Information, including any Free Writing Prospectus or
portion thereof prepared by or on behalf of the Underwriter that
contains only a description of the final terms of the Offered Notes or
of the offering of the Offered Notes.
(xii) "WRITTEN COMMUNICATION" shall have the meaning given such term
in Rule 405 of the Securities Act Regulations.
To the extent not defined herein, capitalized terms used herein have the
meanings assigned to such terms in the Supplementary Terms Notice.
In this Agreement, a reference to the Issuer Trustee is a reference to the
Issuer Trustee in its capacity as trustee of the Trust only, and in no other
capacity and reference to the assets, business, property or undertaking of the
Issuer Trustee, unless otherwise stated, is a reference to the Issuer Trustee in
that capacity only.
Each of the ▇▇.▇▇▇▇▇▇ Parties and the Issuer Trustee hereby agrees with the
Underwriters as follows:
2. Purchase and Sale.
(a) The Issuer Trustee, at the direction of the Trust Manager, agrees
to sell, and the Trust Manager agrees to direct the Issuer Trustee to sell, the
Offered Notes to the several Underwriters as hereinafter provided, and each
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees to purchase,
severally and not jointly, from the Issuer Trustee, the respective principal
amounts of Offered Notes set forth opposite such Underwriter's name in Schedule
I hereto at a price equal to 100% of their principal amount.
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(b) In connection with such purchase, ▇▇.▇▇▇▇▇▇ will pay in
immediately available funds to the Underwriters commissions in the net sum of
US$[_______] with respect to the Offered Notes (the "Commission").
(c) The Underwriters agree to pay for any expenses incurred by the
▇▇.▇▇▇▇▇▇ Parties in connection with any "roadshow" presentation to potential
investors.
3. Offering. The ▇▇.▇▇▇▇▇▇ Parties and the Issuer Trustee understand that
the Underwriters intend to make a public offering of their respective portions
of the Offered Notes upon the terms set forth in the Prospectus as soon after
(A) the Registration Statement has become effective and (B) the parties hereto
have executed and delivered this Agreement, as in the judgment of the
Underwriters is advisable.
4. Delivery and Payment. Payment for the Offered Notes shall be made by
wire transfer in immediately available funds to the account specified by the
Issuer Trustee to the Underwriters no later than 12:00 noon, New York City time
on [______] [__], 20[__], or at such other time on the same or such other date,
not later than the fifth Business Day thereafter, as the Underwriters and the
Trust Manager may agree upon in writing. The time and date of such payment are
referred to herein as the "CLOSING DATE". As used herein, the term "BUSINESS
DAY" means any day other than a day on which banks are permitted or required to
be closed in New York City, Sydney and London.
Payment for the Class [A-1] Notes shall be made against delivery to the
nominee of The Depository Trust Company for the respective accounts of the
several Underwriters of one or more fully registered global book-entry notes
(the "CLASS [A-1] BOOK-ENTRY NOTES") representing US$[_______] in aggregate
principal amount of Class [A-1] Notes, with any transfer taxes payable in
connection with the transfer to the Underwriters of the Class [A-1] Notes duly
paid by the Issuer Trustee. The Class [A-1] Book-Entry Notes will be made
available for inspection by the Underwriters at the offices of Mayer, Brown,
▇▇▇▇ & Maw LLP at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ not later than 1:00
P.M., New York City time, on the Business Day prior to the Closing Date.
Interests in any Book-Entry Notes will be held only in Book-Entry form through
DTC except in limited circumstances described in the Prospectus.
5. Representations and Warranties.
I. Representations and Warranties of the Issuer Trustee.
The Issuer Trustee represents and warrants to each Underwriter and the
▇▇.▇▇▇▇▇▇ Parties as of the date of this Agreement and as of the Closing Date,
and agrees with each Underwriter and the ▇▇.▇▇▇▇▇▇ Parties, that:
(a) since the respective dates as of which information is provided in
the Prospectus, there has not been any material adverse change or any
development involving a prospective material adverse change in or affecting the
general affairs, business, prospects, management, or results of operations,
condition (financial or otherwise) of Perpetual or the Trust except as disclosed
in the Prospectus which is material in the context of performing the Issuer
Trustee's obligations and duties under the Notes and each Basic Document to
which it is or is to be party;
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(b) Perpetual has been duly incorporated and is validly existing as a
corporation under the laws of Australia, with power and authority (corporate and
other) to conduct its business as described in the Prospectus, and to enter into
and perform the Issuer Trustee's obligations under this Agreement and the Basic
Documents and Perpetual has been duly qualified for the transaction of business
and is in good standing under the laws of each other jurisdiction in which it
conducts any business, so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have a material adverse
effect on the transactions contemplated herein or in the Basic Documents;
(c) Perpetual has duly authorized, executed and delivered this
Agreement;
(d) the Notes have been duly authorized by Perpetual, and, when the
Offered Notes have been issued (and duly authenticated by the Note Trustee),
delivered and paid for pursuant to this Agreement, they will constitute valid
and binding obligations of the Issuer Trustee entitled to the benefits of the
Note Trust Deed and the Security Trust Deed, subject as to enforceability to
applicable bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation or other similar laws affecting the enforcement of
creditors rights generally and to general equitable principles;
(e) the execution, delivery and performance by Perpetual of each of
the Basic Documents to which it either is, or is to be, a party and this
Agreement has been duly authorized by Perpetual and, when executed and delivered
by it and the other parties thereto, each of the Basic Documents will constitute
a legal, valid and binding obligation of the Issuer Trustee, enforceable against
it in accordance with its terms, subject as to enforceability to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation or other similar laws affecting the enforcement of creditors rights
generally and to general equitable principles;
(f) Perpetual is not, nor with the giving of notice or lapse of time
or both will be, in violation of or in default under: (i) its constitution or
(ii) any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which either 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 in this Agreement or in the Basic Documents;
the issue and sale of the Notes and the performance by the Issuer Trustee of all
of the provisions of the Issuer Trustee's obligations under the Notes, the Basic
Documents and this Agreement and the consummation of the transactions herein and
therein contemplated will not (I) conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which it is a party or by which it is bound or to which any of its property or
assets is subject, (II) result in any violation of the provisions of its
constitution or any applicable law or statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over it, or any
of its properties; or (III) result in the creation or imposition of any lien or
encumbrance upon any of its property pursuant to the terms of any indenture,
mortgage, contract or other instrument other than pursuant to the Basic
Documents; and no consent, approval, authorization, order, license, registration
or qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Notes or the consummation by the Issuer
Trustee of the transactions
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contemplated by this Agreement or the Basic Documents, except such consents,
approvals, authorizations, orders, licenses, registrations or qualifications as
have been obtained under the Securities Act and the Trust Indenture Act of 1939,
as amended, and the rules and regulations of the SEC thereunder (the latter,
including such applicable rules and regulations, 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 Offered Notes by the Underwriters;
(g) other than as set forth in or contemplated by the Prospectus,
there are no legal or governmental investigations, actions, suits or proceedings
pending or, to its knowledge, threatened against or affecting it or the Trust or
to which it is or may be a party or to which it is or may be the subject: (i)
asserting the invalidity of this Agreement or of any of the Basic Documents,
(ii) seeking to prevent the issuance of the Notes or the consummation of any of
the transactions contemplated by this Agreement or any of the Basic Documents by
the Issuer Trustee, (iii) that may adversely affect the U.S. federal or
Australian federal or state income, excise, franchise or similar tax attributes
of the Offered Notes, (iv) that could materially and adversely affect the Issuer
Trustee's performance of its obligations under, or the validity or
enforceability against the Issuer Trustee of, this Agreement or any of the Basic
Documents or (v) which could individually or in the aggregate reasonably be
expected to have a material adverse effect on the interests of the holders of
any of the Offered Notes or the marketability of the Offered Notes;
(h) the representations and warranties of the Issuer Trustee contained
in the Basic Documents are true and correct in all material respects;
(i) it has not done or omitted to do anything that might reduce, limit
or otherwise adversely affect the right of the Issuer Trustee to be indemnified
from the assets of the Trust under clause [16] of the Master Trust Deed;
(j) Perpetual has not taken any corporate action and (to the best of
its knowledge and belief having made reasonable inquiry and investigation) no
other steps have been taken or legal proceedings been started or threatened
against it for its winding-up, dissolution 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 its assets;
(k) in reliance on the legal opinion specified in Section 7(l) of this
Agreement, no stamp or other duty is assessable or payable in, and subject only
to compliance with Section 128F of the Income Tax Assessment Act 1936 (the
"AUSTRALIAN TAX ACT") in relation to interest payments under the Offered Notes,
no withholding or deduction for any taxes, duties, assessments or governmental
charges of whatever nature will be imposed or made for or on account of any
income, registration transfer or turnover taxes, customs or other duties or
taxes of any kind, levied, collected, withheld or assessed by or within, the
Commonwealth of Australia or any sub-division of or authority therein or thereof
having power to tax in such jurisdiction, in connection with (i) the
authorization, execution or delivery of any of the Basic Documents to which it
is or is to be a party or with the authorization, execution, issue, sale or
delivery of the Offered Notes under this Agreement, (ii) the sale and delivery
of the Offered Notes by the Underwriters contemplated in this Agreement and the
Prospectus or (iii) the execution, delivery or performance by the Issuer Trustee
of any of the Basic Documents to which it is or is to be a
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party or the Offered Notes; except, in the case of sub clause (iii), for any of
the Basic Documents on which nominal stamp duty is payable or any other document
executed in connection with the perfection of the Issuer's Trustee's legal title
to the Housing Loans on which stamp duties or registration fees may be payable;
(l) the Offered 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 Prior
Interest (as defined in the Security Trust Deed); and
(m) no event has occurred or circumstances arisen which, had the Notes
already been issued, would (whether or not with the giving of notice or
direction and/or the passage of time and/or fulfillment of any other
requirement) oblige it to retire as Issuer Trustee or constitute grounds for its
removal as Issuer Trustee under any Basic Document or constitute an Event of
Default (as defined in the Security Trust Deed).
II. Representations and Warranties of the ▇▇.▇▇▇▇▇▇ Parties.
Each ▇▇.▇▇▇▇▇▇ Party severally represents and warrants to each Underwriter
and the Issuer Trustee as of the date of this Agreement and as of the Closing
Date that:
(a) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
adverse change, or any development involving a prospective material adverse
change, in or affecting (x) the general affairs, business, prospects,
management, financial position, stockholders' equity or results of operations of
the ▇▇.▇▇▇▇▇▇ Parties taken as a whole or (y) the general affairs, business,
prospects, condition (financial or otherwise) of the Trust, otherwise than as
set forth or contemplated in the Prospectus;
(b) it has been duly incorporated and is validly existing as a
corporation under the laws of Australia, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus and to enter into and perform its obligations under this Agreement
and the Basic Documents, and, in each case, 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 in this Agreement or in
the Basic Documents;
(c) this Agreement has been duly authorized, executed and delivered by
it;
(d) each of the Basic Documents to which it is or is to be a party and
this Agreement has been duly authorized by it, upon filing the Note Trust Deed
with the SEC the Note Trust Deed will have been duly qualified under the Trust
Indenture Act and each of the Basic Documents, when executed and delivered by
each ▇▇.▇▇▇▇▇▇ Party that is a party to it and the other parties thereto, will
constitute a legal, valid and binding obligation of such ▇▇.▇▇▇▇▇▇ party,
enforceable against it in accordance with its terms, subject as to
enforceability to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation or other similar laws affecting the
enforcement of creditors rights generally and to general equitable
8
principles; and, in the case of the Trust Manager only, the Offered Notes and
the Basic Documents each will conform to the descriptions thereof in the
Prospectus;
(e) it is not, nor with the giving of notice or lapse of time or both
would it be, in violation of or in default under, its constitution or 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 for violations and defaults which individually and in the
aggregate would not have a material adverse effect on the transactions
contemplated in this Agreement or in the Basic Documents; the issue and sale of
the Notes and the performance by it of all or any obligations it has under the
Notes, the Basic Documents and this Agreement and the consummation of the
transactions herein and therein contemplated will not (i) conflict with or
result in a breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which it is a party or by which it is bound or to which any of
its property or assets is subject, (ii) result in any violation of the
provisions of the constitution of a ▇▇.▇▇▇▇▇▇ Party or any applicable law or
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over a ▇▇.▇▇▇▇▇▇ Party, or any of its properties or
(iii) result in the creation or imposition of any lien, charge or encumbrance
upon any of its property pursuant to the terms of any such indenture, mortgage,
contract, or other instrument other than pursuant to the Basic Documents; 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 Offered Notes or the consummation by it of the
transactions contemplated by this Agreement or the Basic Documents, except such
consents, approvals, authorizations, orders, licenses, registrations or
qualifications as have been obtained under the Securities Act, the Trust
Indenture Act and as may be required under state securities or Blue Sky Laws of
the United States in connection with the purchase and distribution of the
Offered Notes by the Underwriters and the registration of the Charge with the
ASIC on the Closing Date;
(f) other than as set forth or contemplated in the Prospectus, there
are no legal or governmental investigations, actions, suits or proceedings
pending or, to its knowledge, threatened against or affecting it or its
properties, the Trust or the Trust's properties, or to which it or the Trust is
or may be a party or to which it, the Trust or any property of it or the Trust
is or may be the subject, (i) asserting the invalidity of this Agreement or of
any of the Basic Documents, (ii) seeking to prevent the issuance of the Notes or
the consummation of any of the transactions contemplated by this Agreement or
any of the Basic Documents, (iii) that may adversely affect the U.S. federal or
Australian federal or state income, excise, franchise, stamp duty or similar tax
attributes of the Offered Notes, (iv) that could materially and adversely affect
its performance of its obligations under, or the validity or enforceability of,
this Agreement or any of the Basic Documents or (v) which could individually or
in the aggregate reasonably be expected to have a material adverse effect on the
interests of the holders of the Offered Notes or the marketability of the
Offered Notes; and there are no statutes, regulations, contracts or other
documents that are required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration Statement or the
Prospectus which are not filed or described as required;
(g) its representations and warranties contained in the Basic
Documents are true and correct in all material respects;
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(h) it owns, possesses or has obtained all licenses, permits,
certificates, consents, orders, approvals and other authorizations from, and has
made all declarations and filings with, all Australian and United States
federal, state, local and other governmental authorities (including United
States 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 it has not received any actual
notice of any proceeding relating to revocation or modification of any such
license, permit, certificate, consent, order, approval or other authorization;
and it is in compliance with all laws and regulations necessary for the
performance of its obligations under this Agreement and the Basic Documents;
(i) it has not taken any corporate action and (to the best of its
knowledge and belief having made reasonable inquiry and investigation) no other
steps have been taken or legal proceedings been started or threatened against it
for its winding-up, dissolution 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 (other than enforcement action
taken by ▇▇.▇▇▇▇▇▇ over its assets);
(j) no stamp or other duty is assessable or payable in, and subject
only to compliance with Section 128F of the Australian Tax Act in relation to
payments under the Offered Notes, 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-divisions of or
authority therein or thereof having power to tax in such jurisdiction, in
connection with (i) the authorization, execution or delivery of the Basic
Documents to which it is, or is to be, a party or with the authorization,
execution, issue, sale or delivery of the Offered Notes and (ii) the execution,
delivery or performance by each ▇▇.▇▇▇▇▇▇ Party of the Basic Documents to which
it is or is to be a party or the Offered Notes; except, in the case of sub
clause (ii), for any of the Basic Documents on which nominal stamp duty is
payable or any other document executed in connection with the perfection of the
Issuer's Trustee's legal title to the Housing Loans on which stamp duties or
registration fees may be payable;
(k) no event has occurred or circumstances arisen which, had the Notes
already been issued, would (whether or not with the giving of notice and/or the
passage of time and/or the fulfillment of any other requirement) constitute a
Manager Default (as defined in the Prospectus) or a Servicer Transfer Event (as
defined in the Servicing Agreement); and
(l) with respect to the A$ Securities and the (euro) Securities: (A)
none of the ▇▇.▇▇▇▇▇▇ Parties, any "affiliate" (as defined in Rule 144(a)(1),
each an "AFFILIATE") of a ▇▇.▇▇▇▇▇▇ Party or any person acting on behalf of a
▇▇.▇▇▇▇▇▇ Party or an Affiliate of a ▇▇.▇▇▇▇▇▇ Party has engaged or will engage
in any "directed selling efforts" (within the meaning of Regulation S), (B) each
of the ▇▇.▇▇▇▇▇▇ Parties, each Affiliate of a ▇▇.▇▇▇▇▇▇ Party and any person
acting on behalf of a ▇▇.▇▇▇▇▇▇ Party or an Affiliate of a ▇▇.▇▇▇▇▇▇ Party has
offered and sold, and will offer and sell, the A$ Securities and the (euro)
Securities only in "offshore transactions" (within the meaning of Regulation S)
in compliance with Regulation S and (C) each of the ▇▇.▇▇▇▇▇▇ Parties, each
Affiliate of a ▇▇.▇▇▇▇▇▇ Party and any person acting on behalf of a
10
▇▇.▇▇▇▇▇▇ Party or an Affiliate of a ▇▇.▇▇▇▇▇▇ Party has complied and will
comply with the offering restrictions requirement of Regulation S.
III. Representations and Warranties of the Trust Manager.
The Trust Manager represents and warrants to each Underwriter and the
Issuer Trustee as of the date of this Agreement and as of the Closing Date,
that:
(a) the Registration Statement has been declared effective by the SEC
under the Securities Act; the conditions to the use by the Trust Manager of a
Registration Statement on Form S-3 under the Securities Act, as set forth in the
General Instructions to Form S-3, have been satisfied with respect to the
Registration Statement and the Prospectus; no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceeding
for that purpose has been instituted or, to the knowledge of the Trust Manager,
threatened by the SEC; and (i) on the Effective Date of the Registration
Statement, the Registration Statement conformed in all material respects to the
requirements of the Securities Act, and did not include any untrue statement of
a material fact or omit to state any material fact required to be stated
therein, or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and (ii) at the time of
filing of the Prospectus pursuant to Rule 424(b) and on the Closing Date the
Prospectus and the Registration Statement will conform in all material respects
to the requirements of the Securities Act, and such document will not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
except that the foregoing representations and warranties shall not apply to (i)
that part of the Registration Statement which constitutes the Statement of
Eligibility and Qualification (Form T-1) of the Note Trustee under the Trust
Indenture Act, and (ii) statements or omissions in the Registration Statement or
the Prospectus made in reliance upon and in conformity with information relating
to any Underwriter furnished to any ▇▇.▇▇▇▇▇▇ Party in writing by such
Underwriter expressly for use therein;
(b) the documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, at the time they
were or hereafter are filed with the SEC, complied and will comply in all
material respects with the requirements of the Exchange Act of 1934, as amended,
and the rules and regulations of the SEC thereunder (collectively, the "EXCHANGE
ACT") and, when read together with the other information in the Prospectus, at
the time the Registration Statement became effective, at the date of the
Prospectus and at the Closing Date, did not and will not include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, no representation or warranty
is made as to documents deemed to be incorporated by reference in the
Registration Statement as the result of filing any current report on Form 8-K at
the request of the Underwriters except to the extent such documents accurately
reflect or are accurately based upon information furnished by or on behalf of
the ▇▇.▇▇▇▇▇▇ Parties to the Underwriters for the purpose of preparing such
documents;
(c) each Issuer Free Writing Prospectus (as of its date) did not, and
the Approved Offering Materials as of the date of the Approved Offering
Materials did not and as of
11
the date of the first Contract of Sale will not and as at the Closing Date will
not, include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(d) The Trust Manager was not, as of any date on or after which a bona
fide offer (as used in Rule 164(h)(2) of the Securities Act Regulations) of the
Offered Notes was made an Ineligible Issuer, as such term is defined in Rule 405
of the Securities Act Regulations.
(e) to the knowledge of the Trust Manager, no event has occurred that
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; and
(f) the Trust is not and (i) upon the issuance and sale of the Notes
as contemplated in this Agreement, (ii) the application of the net proceeds
therefrom as described in the Prospectus, (iii) the performance by the parties
to the Basic Documents of their respective obligations under the Basic
Documents, and (iv) the consummation of the transactions contemplated by the
Basic Documents, the Trust will not be required to be registered as an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
6. Covenants and Agreements.
I. Covenants and Agreements of the Issuer Trustee.
The Issuer Trustee covenants and agrees with each of the Underwriters and
each of the ▇▇.▇▇▇▇▇▇ Parties as follows:
(a) to use the net proceeds received by the Issuer Trustee from the
sale of the Offered Notes pursuant to this Agreement in the manner specified in
the Prospectus under the caption "Use of Proceeds";
(b) to notify the Underwriters and the ▇▇.▇▇▇▇▇▇ Parties promptly
after it becomes actually aware of any matter which would make any of its
representations and warranties in this Agreement untrue if given at any time
prior to payment being made to the Issuer Trustee on the Closing Date and take
such steps as may be reasonably requested by the Underwriters to remedy the
same;
(c) to pay any stamp duty or other issue, transaction, value added,
goods and services or similar tax, fee or duty (including court fees) in
relation to the execution of, or any transaction carried out pursuant to, the
Basic Documents or in connection with the issue and distribution of the Offered
Notes or the enforcement or delivery of this Agreement;
(d) to use all reasonable endeavors to procure satisfaction on or
before the Closing Date of the conditions referred to in Section 7 below which
relate to the Issuer Trustee and, in particular (i) the Issuer Trustee shall
execute those of the Basic Documents not executed on the date hereof on or
before the Closing Date, and (ii) the Issuer Trustee will assist the
12
Underwriters to make arrangements with DTC, Euroclear and Clearstream,
Luxembourg concerning the issue of the Offered Notes and related matters;
(e) to provide reasonable assistance to the ▇▇.▇▇▇▇▇▇ Parties to
procure that the charges created by or contained in the Security Trust Deed are
registered within all applicable time limits in all appropriate registers;
(f) to perform all of its obligations under 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;
(g) not to take, or cause to be taken, any action or knowingly permit
any action to be taken which it knows or has reason to believe would result in
the Offered Notes not being assigned the ratings referred to in Section 7(r)
below;
(h) not, prior to or on the Closing Date, amend the terms of any Basic
Document nor execute any of the Basic Documents other than in the agreed form
without the consent of the Underwriters;
(i) in connection with the initial distribution of the Class [A-2]
Notes and the Class [B] Notes, it and each person acting on its behalf (other
than the ▇▇.▇▇▇▇▇▇ Parties, each Affiliate of a ▇▇.▇▇▇▇▇▇ Party and the Managers
(as defined in the Dealer Agreement)) has not and will not offer for issue, or
invite applications for the issue of, the Class [A-2] Notes, the Class [B] Notes
or the Class [C] Notes or offer the Class [A-2] Notes, the Class [B] Notes or
the Class [C] Notes for sale or invite offers to purchase the Class [A-2] Notes,
the Class [B] Notes or the Class [C] Notes to a person, where the offer or
invitation is received by that person in Australia, unless the minimum amount
payable for the Class [A-2] Notes, the Class [B] Notes or the Class [C] Notes
(as the case may be) (after disregarding any amount lent by any of the ▇▇.▇▇▇▇▇▇
Parties or any associate (as determined under sections 10 to 17 of the
Corporations Act) of any ▇▇.▇▇▇▇▇▇ Party) on acceptance of the offer by that
person is at least A$500,000 (calculated in accordance with both Section 708(a)
of the Corporations Act and Regulations 7.1.18 of the Corporations Regulations
2001 (Cth)) or the offer or invitation does not otherwise require disclosure to
investors in accordance with Part 6D.2 of the Corporations Act and is not made
to a person who is a "retail client" within the meaning of section 761 G of the
Corporations Act.
II. Covenants and Agreements of the ▇▇.▇▇▇▇▇▇ Parties.
The ▇▇.▇▇▇▇▇▇ Parties severally covenant and agree with each of the several
Underwriters and the Issuer Trustee as follows:
(a) in the case of the Trust Manager only, to cause the Preliminary
Prospectus and Prospectus Supplement, properly completed, and any supplement
thereto, to be filed with the SEC pursuant to the applicable paragraph of Rule
424(b) within the time period prescribed and to furnish copies of the Prospectus
to the Underwriters in New York City prior to 10:00 a.m., New York City time, on
the Business Day next succeeding the date of this Agreement in such quantities
as the Underwriters may reasonably request;
13
(b) in the case of the Trust Manager only, to deliver, at the expense
of the Trust Manager, to the Underwriters, a copy of the Registration Statement
(including exhibits thereto), and, during the period mentioned in paragraph (f)
below, to each of the Underwriters as many copies of the Prospectus (including
all amendments and supplements thereto and documents incorporated by reference
therein) as the Underwriters may reasonably request; provided, however, that if
the 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 [6(g)] in every confirmation and will deliver a paper copy of the
Prospectus to those investors that request a paper copy thereof. The Trust
Manager will furnish or cause to be furnished to the Underwriters copies of all
reports required by Rule 463 under the Securities Act;
(c) in the case of the Trust Manager only, before filing any amendment
or supplement to the Registration Statement or the Prospectus, to furnish to the
Underwriters a copy of the proposed amendment or supplement for review and not
to file any such proposed amendment or supplement to which the Underwriters
reasonably objects;
(d) in the case of the Trust Manager only, to advise the Underwriters
promptly, and to confirm such advice in writing, (i) when the Prospectus, and
any supplement thereto, shall have been filed with the SEC pursuant to Rule
424(b), (ii) when any amendment to the Registration Statement has been filed or
becomes effective, (iii) when any supplement to the Prospectus or any amendment
to the Prospectus has been filed and to furnish to the Underwriters with copies
thereof, (iv) of any request by the SEC for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for any additional
information, (v) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of the Prospectus or the initiation or threatening of any
proceeding for that purpose, and (vi) of the occurrence of any event, within the
period referenced in paragraph (f) below, as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading and to use its best efforts to prevent
the issuance of any such stop order, or of any order preventing or suspending
the use of the Prospectus, or of any order suspending the qualification of the
Offered Notes, or notification of any such order thereof and, if issued, to
obtain as soon as possible the withdrawal thereof;
(e) to advise the Underwriters promptly, and to confirm such advice in
writing of the receipt by a ▇▇.▇▇▇▇▇▇ Party of any notification with respect to
any suspension of the qualification of the Offered Notes for offer and sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose;
(f) in the case of the Trust Manager only, if, during such period of
time after the first date of the public offering of the Offered Notes as in the
opinion of counsel for the Underwriters a prospectus relating to the Offered
Notes is required by law to be delivered in connection with sales by an
Underwriter or a dealer, any event shall occur as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement the
Prospectus to comply with law, forthwith to prepare and furnish, at the expense
of the ▇▇.▇▇▇▇▇▇ Parties, to the Underwriters and to the dealers
14
(whose names and addresses the Underwriters will furnish to ▇▇.▇▇▇▇▇▇) to which
Offered Notes may have been sold by the Underwriters and to any other dealers
upon request, such amendments or supplements to the Prospectus as may be
necessary so that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus will comply with law;
(g) in the case of the Trust Manager only, to endeavor to qualify the
Offered Notes for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Underwriters shall reasonably request and to continue such
qualification in effect so long as reasonably required for distribution of the
Offered Notes; provided that the Trust Manager shall not be required to file a
general consent to service of process in any jurisdiction;
(h) in the case of the Trust Manager only, to make generally available
to the holders of the Offered Notes and to the Underwriters as soon as
practicable an earnings statement covering a period of at least twelve months
beginning with the first fiscal quarter of the Trust occurring after the
effective date of the Registration Statement, which shall satisfy the provisions
of Section 11(a) of the Securities Act and Rule 158 of the SEC promulgated
thereunder;
(i) in the case of the Trust Manager only, so long as the Offered
Notes are outstanding, to furnish to the Underwriters (i) copies of each
certificate, the annual statement of compliance and the annual independent
certified public accountant's audit report on the financial statements furnished
to the Issuer 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, (ii) copies of each amendment to any of the Basic Documents,
(iii) on each Determination Date or as soon thereafter as practicable, notice by
telex or facsimile to the Underwriters of the Bond Factor (as such term is
defined in the Supplementary Terms Notice) as of the related Record Date, (iv)
copies of all reports or other communications (financial or other) furnished to
holders of the Offered Notes, and copies of any reports and financial statements
furnished to or filed with the SEC, any governmental or regulatory authority or
any national securities exchange, and (v) from time to time such other
information concerning the Trust or the ▇▇.▇▇▇▇▇▇ Parties as the Underwriters
may reasonably request;
(j) to the extent, if any, that the ratings provided with respect to
the Offered Notes by the Rating Agencies are conditional upon the furnishing of
documents or the taking of any other action by a ▇▇.▇▇▇▇▇▇ Party or the Issuer
Trustee, the relevant ▇▇.▇▇▇▇▇▇ Party shall use its best efforts to furnish such
documents and take any other such action or, in the case of the Issuer Trustee,
it will use its best efforts to procure the Issuer Trustee to do so;
(k) not to 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 Offered Notes not being assigned the rating referred to in
Section 7(r) below;
(l) in the case of the Trust Manager only, to assist the Underwriters
in making arrangements with DTC, Euroclear and Clearstream, Luxembourg
concerning the issue of the Book-Entry Notes and related matters;
15
(m) in the case of the Trust Manager only, if required, to register
the Offered Notes pursuant to the Securities Exchange Act of 1934, as amended,
as soon as reasonably practicable as such requirement comes into effect but no
later than when such registration may become required by law;
(n) in the case of ▇▇.▇▇▇▇▇▇ only, whether or not the transactions
contemplated in this Agreement are consummated or this Agreement is terminated,
to pay, or cause to be paid, all fees costs and expenses incident to the
performance of the ▇▇.▇▇▇▇▇▇ Parties' obligations under this Agreement,
including, without limiting the generality of the foregoing, all fees, costs and
expenses: (i) incident to the preparation, issuance, execution, authentication
and delivery of the Notes, including any fees, costs and expenses of the Note
Trustee or any transfer agent, (ii) incident to the preparation, printing and
filing under the Securities Act of the Registration Statement and the Prospectus
(including in each case all exhibits, amendments and supplements thereto), (iii)
incurred in connection with the registration or qualification and determination
of eligibility for investment of the Offered Notes under the laws of such
jurisdictions as the Underwriters may designate (including fees of counsel for
the Underwriters and their disbursements with respect thereto), (iv) in
connection with the listing of the Notes on any stock exchange, (v) related to
any filing with National Association of Securities Dealers, Inc., (vi) in
connection with the printing (including word processing and duplication costs)
and delivery of this Agreement, the Basic Documents, the Preliminary and
Supplemental Blue Sky Memoranda and any Legal Investment Survey and the
furnishing to Underwriters and dealers of copies of the Registration Statement
and the Prospectus, including mailing and shipping, as provided in this
Agreement, (vii) the ▇▇.▇▇▇▇▇▇ Parties' counsel and accountants fees and
disbursement that are chargeable to ▇▇.▇▇▇▇▇▇, and (viii) payable to rating
agencies in connection with the rating of the Notes. However, the Underwriters
shall be responsible for any expenses incurred by the ▇▇.▇▇▇▇▇▇ Parties in
connection with any "roadshow" presentation to potential investors;
(o) to 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 Offered Notes in accordance with this
Agreement and on the execution and delivery of this Agreement and any value
added tax or goods and services tax payable in connection with any concessions,
commissions and other amounts payable or allowable by the Issuer Trustee; to
make all payments to be made by the ▇▇.▇▇▇▇▇▇ Parties or the Issuer Trustee
under this Agreement without withholding or deduction for or on account of any
present or future taxes, duties or governmental charges whatsoever unless the
relevant ▇▇.▇▇▇▇▇▇ Party is compelled by law to deduct or withhold such taxes,
duties or charges. In that event, the relevant ▇▇.▇▇▇▇▇▇ Party shall pay such
additional amounts as may be necessary in order that the net amounts received
after such withholding or deduction shall equal the amount that would have been
received if no withholding or deduction had been made;
(p) in connection with the initial distribution of the Class [A-2]
Notes, the Class [B] Notes and the Class [C] Notes, it and each person acting on
behalf of the ▇▇.▇▇▇▇▇▇ Parties, each of whom has agreed and covenanted with the
Issuer Trustee and the Trust Manager, with appropriate changes, as follows) has
not and will not offer for issue, or invite applications for the issue of, the
Class [A-2] Notes, the Class [B] Notes and the Class [C] Notes or offer the
Class [A-2] Notes, the Class [B] Notes and the Class [C] Notes for sale or
invite offers to
16
purchase the Class [A-2] Notes, the Class [B] Notes and the Class [C] Notes to a
person, where the offer or invitation is received by that person in Australia,
unless the minimum amount payable for the Class [A-2] Notes, the Class [B] Notes
and the Class [C] Notes (as the case may be) (after disregarding any amount lent
by any of the ▇▇.▇▇▇▇▇▇ Parties or any associate (as determined under sections
10 to 17 of the Corporations Act) of any ▇▇.▇▇▇▇▇▇ Party) on acceptance of the
offer by that person is at least A$500,000 (calculated in accordance with both
section 708(a) of the Corporations Act and Regulation 7.1.18 of the Corporations
Regulations 2001 (Cth)) or the offer or invitation does not otherwise require
disclosure to investors in accordance with Part 6D.2 of the Corporations Act and
is not made to a person who is a "retail client" within the meaning of section
761 G of the Corporations Act;
(q) in the case of the Trust Manager only, to file any Issuer Free
Writing Prospectus, and any Underwriter Prepared Issuer FWP provided to it by an
Underwriter under Section 6(V)(f), not later than the date of first use thereof,
except that:
(i) any Issuer Free Writing Prospectus or Underwriter Prepared
Issuer FWP or portion thereof otherwise required to be filed that
contains only (1) a description of the final terms of the Offered
Notes may be filed by the Trust Manager within two days of the
later of the date such final terms have been established for all
classes of Offered Notes and the date of first use, and (2) a
description of the terms of the Offered Notes that does not
reflect the final terms after they have been established for all
classes of all Offered Notes is not required to be filed; and
(ii) if the Issuer Free Writing Prospectus or Underwriter
Prepared Issuer FWP includes only information of a type included
in the definition of ABS Informational and Computational
Materials, the Trust Manager shall file the same within the later
of two business days after the Underwriter first provides this
information to investors and the date upon which the Trust
Manager is required to file the Prospectus Supplement with the
SEC pursuant to Rule 424(b)(3) of the Securities Act,
provided further, that prior to the filing of any Underwriter Prepared Issuer
FWP by the Trust Manager, such Underwriter must comply with its obligations
pursuant to Section 6(V)(f) and that the Trust Manager shall not be required to
file any Free Writing Prospectus to the extent such Free Writing Prospectus
includes information in a Free Writing Prospectus, Preliminary Prospectus or
Prospectus previously filed with the SEC or that does not contain substantive
changes from or additions to a Free Writing Prospectus previously filed with the
SEC; and
(r) to procure that the charges created by or contained in the
Security Trust Deed are registered within all applicable time limits in all
appropriate registers.
III. Selling Restrictions.
(a) No prospectus in relation to the Offered Notes has been lodged
with, or registered by, the Australian Securities and Investments Commission or
the Australian Stock Exchange Limited. Accordingly, each of the Underwriters,
severally and not jointly, represents
17
and agrees that it has not offered and will not offer for issue and has not
invited and will not invite applications for the issue of the Offered Notes or
offer the Offered Notes for sale or invite offers to purchase the Offered Notes
to a person, where the offer or invitation is received by that person in
Australia.
(b) Each Underwriter, severally and not jointly, agrees with the
Issuer Trustee that, within 30 days of the date of this Agreement, it will have
offered the Offered Notes for sale, or invited or induced offers to buy the
Offered Notes, in each case by:
(i) making the Prospectus available for inspection on a Bloomberg
source or on an alternative electronic source and inviting
potential investors to access the Prospectus available on that
Bloomberg source or on that alternative electronic source; or
(ii) making hard copies of the Prospectus for the Offered Notes
available for collection from that Underwriter in at least its
principal office in New York City or London and, in the case of
purchasers in the United States, by sending or giving copies of
the Prospectus to those purchasers.
(c) Each Underwriter agrees that it will not sell Offered Notes to, or
invite or induce offers for the Offered Notes from:
(i) any offshore associate of the Issuer Trustee or a ▇▇.▇▇▇▇▇▇
Party specified in Schedule II or Schedule III; or
(ii) any other offshore associate from time to time specified in
writing to the Underwriter by the Issuer Trustee or a ▇▇.▇▇▇▇▇▇
Party.
(d) Each Underwriter, severally and not jointly, agrees to:
(i) provide written advice to the Issuer Trustee and the Trust
Manager within 40 days of the issue of the Offered Notes
specifying that it has complied with Section 6(III)(b); and
(ii) cooperate with reasonable requests from the Issuer Trustee
for information for the purposes of assisting the Issuer Trustee
to demonstrate that the public offer test under section 128F of
the Australian Tax Act has been satisfied in respect of the
Offered Notes,
provided that no Underwriter shall be obliged to disclose:
(x) the identity of the purchaser of any Offered Note or any
information from which such identity might be capable of
being ascertained; or
(y) any information the disclosure of which would be
contrary to or prohibited by any relevant law, regulation or
directive.
18
(e) Each Underwriter (severally and not jointly) represents and
covenants to the Issuer Trustee and the ▇▇.▇▇▇▇▇▇ Parties as of the date of this
Agreement and agrees that:
(i) (a) it has complied with and will comply with all applicable
provisions of the Financial Services and Markets ▇▇▇ ▇▇▇▇, as
amended ("FSMA") with respect to anything done in relation to the
Offered Notes in, from or otherwise involving the United Kingdom;
and (b) 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 Offered Notes in
circumstances in which Section 21(1) of the FSMA does not apply
to the Issuer Trustee.
(ii) [(a) the Offered Notes have not been and will not be
offered, sold or distributed in the Kingdom of Spain save in
accordance with the requirements of the Spanish Securities Market
Law of 28 July 1988 (Ley ▇▇/▇▇▇▇, ▇▇ ▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇) as amended and restated, and Royal Decree 291/1992, of
27 March, on Issues and Public Offerings of Securities (Real
Decreto 291/1992, de 27 de marzo, sobre Emisiones y Ofertas
Publicas de Venta de Valores) as amended and restated and the
decrees and regulations made thereunder; (b) neither the Offered
Notes nor the Prospectus have been or will be verified or
registered in the administrative registries of the Spanish
Securities Markets Commission (Comision Nacional del ▇▇▇▇▇▇▇ de
Valores); and (c) the Offered Notes have not been 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 of the Spanish Securities Market Law and
further relevant legislation or without complying with all legal
and regulatory requirements in relation thereto.
(iii) the Offered Notes have not been registered pursuant to
Italian securities legislation and, accordingly, each Underwriter
has represented and agreed that no action has or will be taken by
it which would allow an offering (or a "sollecitazione
all'investimento") of the notes to the public in the Republic of
Italy, and that sale of the notes to any persons in the Republic
of Italy shall be effected in accordance with Italian securities,
tax and other applicable laws and regulations;
(iv) it has not offered, sold or delivered and will not offer,
sell or deliver any of the Offered Notes or distribute or make
available any of the Offered Notes or copies of the Prospectus or
any other offering material relating to the Offered Notes in the
Republic of Italy except (a) to professional investors (operatori
qualificati), as defined in Article 31, second paragraph of
Regulation No. 11522 of 1st July, 1998 issued by the Commissione
Nazionale per le Societa e la Borsa ("CONSOB"), as amended and
integrated from time to time; (b) in circumstances which are
19
exempted from the rules on solicitation of investments pursuant
to Article 100 of Legislative Decree No. 58 of 24th February,
1998 (the "FINANCIAL SERVICES ACT") and Article 33, first
paragraph, of CONSOB Regulation No. 11971 of 14th May, 1999, as
amended and integrated from time to time; or (c) to an Italian
resident who submits outside the Italian territory an unsolicited
offer to purchase such Offered Notes.
(v) any offer, sale or delivery of the Offered Notes or
distribution of copies of the Prospectus or any other document
relating to any of the Offered Notes in Italy under paragraphs
(iii) and (iv) above must be (a) made by an investment firm, bank
or financial intermediary permitted to conduct such activities in
the Republic of Italy in accordance with the Financial Services
Act, Legislative Decree No. 385 of 1st September, 1993 (the
"ITALIAN BANKING ACT"), as amended, Regulation 11522 and any
other applicable laws and regulations; (b) in compliance with
Article 129 of the Italian Banking Act and the implementing
guidelines of the Bank of Italy pursuant to which the issue or
the offer of securities in Italy may need to be preceded and
followed by an appropriate notice to be filed with the Bank of
Italy depending, inter alia, on the aggregate value of the
securities issued or offered in Italy and their characteristics;
(c) in compliance with any other application notification,
requirement or limitation which may be imposed by CONSOB or the
Bank of Italy. For the avoidance of doubt no application pursuant
to Article 129 of the Italian Banking Act has been made to the
Bank of Italy by any of the Underwriters; and (d) in compliance
with the banking transparency requirements set forth in the
Italian Banking Act and the implementing regulations and decrees.
(vi) it has not offered or sold and will not offer or sell any
Offered Notes, except in conformity with the provisions of the
Prospectus (Directive 2003/71/EC) Regulations 2005 and the
provisions of the Irish Companies Acts 1963-2005; (b) it has not
and will not offer or sell any Offered Notes other than in
compliance with the provisions of the Irish Market Abuse
(Directive 2003/6/EU) Regulations 2005; and (c) it will not
underwrite the issue of or place the Offered Notes otherwise than
in conformity with the provisions of the Irish Investment
Intermediaries Act 1995 (as amended), including, without
limitation, Sections 9, 23 (including any advertising
restrictions made thereunder) and 37 (including any codes of
conduct issued thereunder) and the provisions of the Irish
Investor Compensation Act, 1998, including without limitation,
Section 21.]
(f) Each Underwriter, severally and not jointly, acknowledges that the
Offered Notes may not be offered or sold, directly or indirectly, and neither
the 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
will comply with all applicable securities laws and regulations in
20
each jurisdiction in which it purchases, offers, invites offers, sells or
delivers Offered Notes or possesses or distributes the Prospectus or any other
offering material in all cases at its own expense.
IV. Trust Manager Direction to Issuer Trustee.
The Trust Manager hereby directs the Issuer Trustee to do each of the
things (or, as the case may be, not to do the things) specified in Section 6(I)
and the Issuer Trustee acknowledges and accepts that direction.
V. Covenants and Agreements of the Underwriters.
(a) Each Underwriter represents and warrants to and agrees with the
Issuer Trustee and the ▇▇.▇▇▇▇▇▇ Parties that as of the date of this Agreement
and as of the Closing Date, such Underwriter has complied with all of its
obligations under this Agreement, including, without limitation, this Section
6(V), and, with respect to all Underwriter Prepared Issuer FWP and Underwriter
Free Writing Prospectuses, if any, such Underwriter Prepared Issuer FWP and
Underwriter Free Writing Prospectuses are accurate in all material respects
(taking into account the assumptions explicitly set forth in such Underwriter
Prepared Issuer FWP and Underwriter Free Writing Prospectuses), except that such
Underwriter makes no representation to the extent that any misstatements or
omissions were the result of any inaccurate Issuer Information (including but
not limited to Pool Information) supplied by the Issuer Trustee or the ▇▇.▇▇▇▇▇▇
Parties to such Underwriter.
(b) Prior to the Closing Date each Underwriter shall notify the Trust
Manager or ▇▇.▇▇▇▇▇▇ of the earlier of (x) the date on which the Prospectus
Supplement is first used and (y) the time of the first Contract of Sale to which
such Prospectus Supplement relates.
(c) It is understood that the Underwriters propose to offer the
Offered Notes for sale to the public as set forth in the Prospectus and the
Underwriters agree that all such offers and sales shall be made in compliance
with all applicable laws and regulations. Prior to the date of the first
Contract of Sale made based on the Approved Offering Materials, each Underwriter
represents, warrants and agrees that it has not pledged, sold, disposed of or
otherwise transferred any Offered Note, Housing Loans or any interest in any
Offered Note.
(d) It is understood that the Underwriters will solicit offers to
purchase the Offered Notes as follows:
(i) Prior to the time that the Underwriters have received the
Approved Offering Materials they may, in compliance with the
provisions of this Agreement, solicit offers to purchase Offered
Notes; provided, that they shall not accept any such offer to
purchase an Offered Note or any interest in any Offered Note or
Housing Loan or otherwise enter into any Contract of Sale for any
Offered Note, any interest in any Offered Note or any Housing
Loan prior to their conveyance of Approved Offering Materials to
the investor.
21
(ii) any Written Communication relating to the Offered Notes made
by an Underwriter in compliance with the terms of this Agreement
prior to the time such Underwriter has entered into a Contract of
Sale for Offered Notes with the recipient shall prominently set
forth the following statements (or a substantially similar
statements approved by the Trust Manager):
The information in this free writing prospectus, if conveyed
prior to the time of your contractual commitment to purchase any
of the Offered Notes, supersedes any information contained in any
prior similar materials relating to the Offered Notes. The
information in this free writing prospectus is preliminary, and
is subject to completion or change. This free writing prospectus
is being delivered to you solely to provide you with information
about the offering of the Offered Notes referred to in this free
writing prospectus and to solicit an offer to purchase the
Offered Notes, when, as and if issued. Any such offer to purchase
made by you will not be accepted and will not constitute a
contractual commitment by you to purchase any of the Offered
Notes, until we have accepted your offer to purchase Offered
Notes.
The Offered Notes referred to in these materials are being sold
when, as and if issued. The issuer is not obligated to issue such
Offered Notes or any similar security and the underwriter's
obligation to deliver such Offered Notes is subject to the terms
and conditions of the underwriting agreement and the availability
of such Offered Notes when, as and if issued. You are advised
that the terms of the Offered Notes, and the characteristics of
the housing loan pool backing them, may change (due, among other
things, to the possibility that housing loans that comprise the
pool may become delinquent or defaulted or may be removed or
replaced and that similar or different housing loans may be added
to the pool, and that one or more classes of Offered Notes may be
split, combined or eliminated), at any time prior to issuance or
availability of a final prospectus. You are advised that Offered
Notes may not be issued that have the characteristics described
in these materials. The underwriter's obligation to sell such
Offered Notes to you is conditioned on the housing loans and
Offered Notes having the characteristics described in these
materials. If for any reason the issuer does not deliver such
Offered Notes, the underwriter will notify you, and neither the
issuer nor any underwriter will have any obligation to you to
deliver all or any portion of the Offered Notes which you have
committed to purchase, and none of the issuer nor any underwriter
will be liable for any costs or damages whatsoever arising from
or related to such non-delivery.
(e) It is understood that the Underwriters will not enter into a
Contract of Sale with any investor until the Approved Offering Materials have
been conveyed to the investor with respect to the Offered Notes that are the
subject of such Contract of Sale.
22
(f) Each Underwriter may prepare and provide to prospective investors
Free Writing Prospectuses, subject to the following conditions to be satisfied
by such Underwriter:
(i) Unless preceded or accompanied by a prospectus satisfying the
requirements of Section 10(a) of the Securities Act, such
Underwriter shall not convey or deliver any Written Communication
to any person in connection with the initial offering of the
Offered Notes, unless such Written Communication (i) is made in
reliance on Rule 134 under the Securities Act, (ii) constitutes a
prospectus satisfying the requirements of Rule 430B under the
Securities Act or (iii) constitutes a Free Writing Prospectus
consisting solely of (x) information of a type included within
the definition of ABS Informational and Computational Materials,
(y) Permitted Additional Materials or (z) information accurately
extracted from the Preliminary Prospectus Supplement or any
Issuer Free Writing Prospectus and included in any Underwriter
Prepared Issuer FWP or any Underwriter Free Writing Prospectus.
(ii) Such Underwriter shall comply with all applicable laws and
regulations in connection with the use of Free Writing
Prospectuses, including but not limited to Rules 164 and 433 of
the Securities Act Regulations and all SEC guidance relating to
Free Writing Prospectuses, including but not limited to SEC
Release No. 33-8591.
(iii) It is understood and agreed that all information provided
by the Underwriters to or through Bloomberg or Intex or similar
entities for use by prospective investors, or imbedded in any CDI
file provided to prospective investors, or in any email or other
electronic message provided to prospective investors, to the
extent constituting a Free Writing Prospectus, shall be deemed
for purposes of this Agreement to be an Underwriter Free Writing
Prospectus and shall not be subject to the required consent of
the Trust Manager set forth in the third sentence in Section
6(V)(f)(v). In connection therewith, each Underwriter agrees that
it shall not provide any information constituting Issuer
Information through the foregoing media unless (i) such
information or substantially similar information is contained
either in an Issuer Free Writing Prospectus or in an Underwriter
Prepared Issuer FWP in compliance with Section 6(V)(f)(v) or (ii)
to the extent such information consists of the terms of the
Offered Notes, the final version of the terms of the Offered
Notes or substantially similar information is contained either in
an Issuer Free Writing Prospectus or in an Underwriter Prepared
Issuer FWP in compliance with Section 6(V)(f)(v).
(iv) All Free Writing Prospectuses provided to prospective
investors, whether or not filed with the SEC, shall bear a legend
including the following statement (or a substantially similar
statement approved by the Trust Manager):
23
"THE DEPOSITOR HAS FILED A REGISTRATION STATEMENT (INCLUDING A
PROSPECTUS) WITH THE SECURITIES AND EXCHANGE COMMISSION (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 DEPOSITOR HAS FILED WITH THE
SEC FOR MORE COMPLETE INFORMATION ABOUT THE DEPOSITOR AND THE
OFFERING. YOU MAY GET THESE DOCUMENTS AT NO CHARGE BY VISITING
▇▇▇▇▇ ON THE SEC WEB SITE AT ▇▇▇.▇▇▇.▇▇▇. ALTERNATIVELY, THE
DEPOSITOR, ANY UNDERWRITER OR ANY DEALER PARTICIPATING IN THE
OFFERING WILL ARRANGE TO SEND YOU THE PROSPECTUS AT NO CHARGE IF
YOU REQUEST IT BY CALLING TOLL-FREE 1-8[XX-XXX-XXXX] OR VIA EMAIL
AT ______________."
Upon reasonable notice and in consultation with the Underwriters,
the Trust Manager shall have the right to require additional
specific legends or notations to appear on any Free Writing
Prospectus, the right to require changes regarding the use of
terminology and the right to determine the types of information
appearing therein. Notwithstanding the foregoing, subsection
(f)(iv) will be satisfied if all Free Writing Prospectuses bear a
legend in a form previously approved in writing by the Trust
Manager;
(v) The Underwriters shall deliver 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),
any Underwriter Prepared Issuer FWP (as defined above). To
facilitate filing to the extent required by Section [2(q)]
[6(II)(q)] or Section 6(V)(i), as applicable, all Underwriter
Derived Information shall be set forth in a document separate
from any Underwriter Prepared Issuer FWP including Issuer
Information. Consent to use of any Underwriter Prepared Issuer
FWP must be given by the Trust Manager in written or electronic
format before the Underwriter provides the Underwriter Prepared
Issuer FWP to investors pursuant to the terms of this Agreement.
Notwithstanding the foregoing, the Underwriters shall not be
required to deliver or obtain consent to use an Underwriter
Prepared Issuer FWP to the extent that it does not contain
substantive changes from or additions to any Underwriter Prepared
Issuer FWP previously approved by the Trust Manager. In the event
that a Underwriter uses any Underwriter Prepared Issuer FWP
without complying with the foregoing requirements, that
Underwriter Prepared Issuer FWP shall be deemed to be an
Underwriter Free Writing Prospectus for purposes of Sections 8(a)
and 8(b);
24
(vi) The Underwriters shall provide the Trust Manager and the
Issuer Trustee with a letter from KPMG, certified public
accountants, prior to the Closing Date, satisfactory in form and
substance to the ▇▇.▇▇▇▇▇▇ Parties, their counsel and the
Underwriters, to the effect that such accountants have performed
certain specified procedures, all of which have been agreed to by
the Trust Manager and the Underwriter, as a result of which they
determined that certain information of an accounting, financial
or statistical nature that is included in any Underwriter
Prepared Issuer FWP, other than any Pool Information therein and
any information accurately extracted from the Preliminary
Prospectus Supplement or any Issuer Free Writing Prospectus and
included in such Underwriter Prepared Issuer FWP, is accurate
except as to such matters that are not deemed by the Trust
Manager and the Underwriter to be material. The foregoing letter
shall be at the expense of the Underwriter.
(vii) The Trust Manager shall not be obligated to file any Issuer
Free Writing Prospectuses that have been determined to contain
any material error or omission unless such Issuer Free Writing
Prospectus has been provided to a prospective investor, in which
case, the Underwriters shall cooperate with the Trust Manager to
prepare a corrective Issuer Free Writing Prospectus that the
Underwriters will provide to any such prospective investor and
the Trust Manager shall file to the extent required herein. In
the event that an Underwriter becomes aware that, as of the date
on which an investor entered into a Contract of Sale, any Free
Writing Prospectus prepared by or on behalf of such Underwriter
and delivered to such investor contained any untrue statement of
a material fact or omitted to state a material fact necessary in
order to make the statements contained therein, in light of the
circumstances under which they were made, not misleading (such
Free Writing Prospectus, a "DEFECTIVE FREE WRITING PROSPECTUS"),
such Underwriter shall notify the Trust Manager thereof as soon
as practical but in any event within one business day after
discovery;
(viii) If an Underwriter does not provide any Free Writing
Prospectuses to the Trust Manager pursuant to this subsection
(f), such Underwriter shall be deemed to have represented to the
Issuer Trustee and the ▇▇.▇▇▇▇▇▇ Parties, as of the Closing Date,
that it did not provide any prospective investors with any
information in written or electronic form in connection with the
offering of the Offered Notes that would constitute an
Underwriter Prepared Issuer FWP;
(ix) In the event of any delay in the delivery by such
Underwriter to the Trust Manager any Underwriter Prepared Issuer
FWP required to be delivered in accordance with this subsection
(f), or in the delivery of the accountant's comfort letter in
respect thereof pursuant to subsection (f)(vi) above the Trust
Manager shall have the right to delay the release of the
Prospectus to investors or to the Underwriters, to delay the
Closing Date and to take other appropriate actions, in each case
as necessary in order to
25
allow the Trust Manager to file such Underwriter Prepared Issuer
FWP by the time specified therein;
(x) Each Underwriter represents that it has in place, and
covenants, in each case to the Issuer Trustee and the ▇▇.▇▇▇▇▇▇
Parties, that it shall maintain internal controls and procedures
which it reasonably believes to be sufficient to ensure full
compliance with all applicable legal requirements of the
Securities Act Regulations with respect to the generation and use
of Free Writing Prospectuses in connection with the offering of
the Offered Notes. In addition, each Underwriter shall, for a
period of at least three years after the date hereof, maintain
written and/or electronic records of the following:
(A) any Free Writing Prospectus used by such Underwriter to
solicit offers to purchase Offered Notes to the extent not filed
with the SEC;
(B) regarding each Free Writing Prospectus delivered by the
Underwriter to an investor, the date of such delivery and
identity of such investor; and
(C) regarding each Contract of Sale entered into by such
Underwriter, the date, identity of the investor and the terms of
such Contract of Sale, as set forth in the related confirmation
of trade.
(xi) 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 Offered Notes to a prospective investor unless
such information is preceded or accompanied by the Final
Prospectus. It is understood and agreed that the use of written
information in accordance with the preceding sentence is not a
Free Writing Prospectus and is not otherwise restricted or
governed in any way by this Agreement.
(xii) The Underwriters shall not use any Free Writing Prospectus
in connection with the solicitation of offers to purchase Offered
Notes from any prospective investor in a class of Offered Notes
with denominations of less than $25,000 or otherwise designated
as a "retail" class of Offered Notes, and each Underwriter shall
not authorize any such use of any Free Writing Prospectus by any
dealer that purchases any such Offered Notes from such
Underwriter.
(g) Each Underwriter agrees that (i) if the Prospectus is not
delivered with the confirmation in reliance on Rule 172, it will include in
every confirmation sent out the notice required by Rule 173 informing the
investor that the sale was made pursuant to the Registration Statement and that
the investor may request a copy of the Prospectus from such Underwriter; (ii) if
a paper copy of the Prospectus is requested by a person who receives a
confirmation, such
26
Underwriter shall deliver a printed or paper copy of such Prospectus; and (iii)
if an electronic copy of the Prospectus is delivered by such Underwriter for any
purpose, such copy shall be the same electronic file containing the Prospectus
in the identical form transmitted electronically to the Underwriter by or on
behalf of the Trust Manager specifically for use by the Underwriter pursuant to
this Section 6(V)(g); for example, if the Prospectus is delivered to such
Underwriter by or on behalf of the Trust Manager in a single electronic file in
pdf format, then such Underwriter will deliver the electronic copy of the
Prospectus in the same single electronic file in pdf format. Each Underwriter
further agrees that it will provide to the Trust Manager any Underwriter
Prepared Issuer FWP, or portions thereof, which the Trust Manager is required to
file with the SEC in electronic format and will use reasonable efforts to
provide to the Trust Manager such Underwriter Prepared Issuer FWP, or portions
thereof, in either Microsoft Word(R) or Microsoft Excel(R) format and not in a
pdf, except to the extent that the Trust Manager, in its sole discretion, waives
such requirements.
(h) If the Trust Manager or an Underwriter determines or becomes aware
that any Written Communication (including without limitation any Approved
Offering Materials) 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 with notice
to the other party, and such Underwriter shall deliver such information in a
manner reasonably acceptable to both parties, to any person with whom a Contract
of Sale was entered into, and such information shall provide any such person
with the following:
(i) Adequate disclosure of the contractual arrangement;
(ii) Adequate disclosure of the person's rights under the
existing Contract of Sale at the time termination is sought;
(iii) Adequate disclosure of the new information that is
necessary to correct the misstatements or omissions in the
information given at the time of the original Contract of Sale;
and
(iv) A meaningful ability to elect to terminate or not terminate
the prior Contract of Sale and to elect to enter into or not
enter into a new Contract of Sale.
Any costs incurred to the investor in connection with any such termination or
reformation shall be subject to Sections 8(a) and (b), as applicable.
(i) Each Underwriter shall file any Underwriter Free Writing
Prospectus that has been distributed by such Underwriter in a manner reasonably
designed to lead to its broad, unrestricted dissemination within the later of
two business days after such Underwriter first provides this information to
investors and the date upon which the Trust Manager is required to file the
Prospectus Supplement with the SEC pursuant to Rule 424(b)(3) of the Securities
Act or otherwise as required under Rule 433 of the Securities Act; provided,
however, that the
27
Underwriter shall not be required to file any Underwriter Free Writing
Prospectus to the extent such Underwriter Free Writing Prospectus includes
information in a Free Writing Prospectus, Preliminary Prospectus or Prospectus
previously filed with the SEC or that does not contain substantive changes from
or additions to a Free Writing Prospectus previously filed with the SEC.
7. Conditions to the Obligations of the Underwriters. The several
obligations of the Underwriters hereunder are subject to the performance by the
Issuer Trustee and the ▇▇.▇▇▇▇▇▇ Parties of their obligations hereunder and to
the following additional conditions:
(a) the Registration Statement shall have become effective, or if a
post-effective amendment is required to be filed under the Securities Act, such
post-effective amendment shall have become effective, not later than 5:00 P.M.,
New York City time, on the date hereof; and no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
shall be in effect, and no proceedings for such purpose shall be pending before
or threatened by the SEC; the Prospectus used to confirm sales of the Notes
shall have been filed with the SEC pursuant to Rule 424(b) within the applicable
time period prescribed for such filing by the rules and regulations under the
Securities Act and in accordance with Section 5II(a) hereof; and all requests
for additional information shall have been complied with to the satisfaction of
the Underwriters;
(b) the representations and warranties of the Issuer Trustee and the
▇▇.▇▇▇▇▇▇ Parties contained herein are true and correct on and as of the Closing
Date as if made on and as of the Closing Date and the representations and
warranties of the Issuer Trustee and ▇▇.▇▇▇▇▇▇ Parties in the Basic Documents
will be true and correct on the Closing Date; and the Issuer Trustee and the
▇▇.▇▇▇▇▇▇ Parties shall have complied with all agreements and all conditions on
the part of each to be performed or satisfied hereunder and under the Basic
Documents at or prior to the Closing Date;
(c) all actions required to be taken and all filings required to be
made by the Trust Manager or the Issuer Trustee under the Securities Act prior
to the Closing Date for the Notes shall have been duly taken or made;
(d) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date: (x) there shall not have occurred any downgrading in
any rating accorded any securities of, or guaranteed by, ▇▇.▇▇▇▇▇▇ by any
"nationally recognized statistical rating organization" (as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act) to: (i) "A2" or worse
in the case of the rating accorded by ▇▇▇▇▇'▇ Investors Service, Inc., (ii) "A"
or worse in the case of a rating accorded by Standard & Poor's Ratings Group or
(iii) the equivalent of "A2" or "A" or worse in the case of the rating accorded
by any other "nationally recognized statistical rating organization" nor (y)
shall any notice have been given of any intended or potential downgrading as is
referred to in subclause (x) of this paragraph (d);
(e) since the date of this Agreement, there shall not have been any
material adverse change or any development involving a prospective material
adverse change, in or affecting the general affairs, business, prospects,
management, financial position, stockholders' equity or results of operations of
the Issuer Trustee or any of the ▇▇.▇▇▇▇▇▇ Parties, taken as
28
a whole, otherwise than as set forth or contemplated in the Prospectus, the
effect of which in the judgment of the Underwriters makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Offered
Notes on the Closing Date on the terms and in the manner contemplated in the
Prospectus;
(f) the Underwriters shall have received on and as of the Closing Date
a certificate of an Authorized Officer of the Issuer Trustee and each ▇▇.▇▇▇▇▇▇
Party, with specific knowledge about the party's financial matters, satisfactory
to the Underwriters to the effect set forth in subsections (b) and (e) of this
Section in the case of the Issuer Trustee, and (a) through (e) of this Section
in the case of each ▇▇.▇▇▇▇▇▇ Party;
(g) the Underwriters shall have received letters of KPMG LLP, one
dated the date of the preliminary prospectus and one dated the date of the final
prospectus, in form and substance satisfactory to counsel of the Underwriters,
confirming that they are independent public accountants within the meaning of
the Securities Act and the applicable Rules and Regulations and stating in
effect that they have performed certain specified procedures as a result of
which they determined that certain information of an accounting, financial or
statistical nature set forth in the Registration Statement and the Prospectus
(and any amendments and supplements thereto), agrees with the accounting records
of ▇▇.▇▇▇▇▇▇, excluding any questions of legal interpretation;
(h) ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special United States counsel to the
Underwriters, shall have furnished to the Underwriters their written opinion,
dated the Closing Date, with respect to the Registration Statement, the
Prospectus and other related matters as the Underwriters may reasonably request,
and such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(i) Mayer, Brown, ▇▇▇▇ & Maw LLP, United States counsel for the
▇▇.▇▇▇▇▇▇ Parties, shall have furnished to the Underwriters their written
opinions, dated the Closing Date, in form and substance satisfactory to the
Underwriters, and such counsel shall have received such papers and information
as they may reasonably request to enable them to pass upon such matters;
(j) Mayer, Brown, ▇▇▇▇ & Maw LLP, United States federal income tax
counsel for the ▇▇.▇▇▇▇▇▇ Parties shall have furnished to the Underwriters their
written opinion, dated the Closing Date, in form and substance satisfactory to
the Underwriters, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(k) Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Australian counsel for the ▇▇.▇▇▇▇▇▇
Parties, shall have furnished to the Underwriters their written opinion, dated
the Closing Date, in form and substance satisfactory to the Underwriters, and
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(l) Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Australian tax counsel for the ▇▇.▇▇▇▇▇▇
Parties, shall have furnished to the Underwriters their written opinion, dated
the Closing Date, in form and substance satisfactory to the Underwriters, and
such Australian tax counsel shall have
29
1received such papers and information as they may reasonably request to enable
them to pass upon such matters;
(m) [_________], Australian counsel for the Issuer Trustee and the
Security Trustee, shall have furnished to the Underwriters their written
opinion, dated the Closing Date, in form and substance satisfactory to the
Underwriters, and such counsel shall have received such papers and information
as they may reasonably request to enable them to pass upon such matters;
(n) [_________], counsel for the Note Trustee shall have furnished to
the Underwriters their written opinion, dated the Closing Date, in form and
substance satisfactory to the Underwriters, and such counsel shall have received
such papers and information as they may reasonably request to enable them to
pass upon such matters;
(o) [RESERVED];
(p) Counsel to the Currency Swap Provider shall have furnished to the
Underwriters their written opinion dated the Closing Date, in form and substance
satisfactory to the Underwriters, and such counsel shall have received such
papers and information as they may reasonably request to enable them to pass
upon such matters;
(q) [RESERVED];
(r) the Underwriters shall have received copies of letters from
▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"). Standard & Poor's (Australia) Pty.
Ltd. ("S&P") and Fitch Australia Pty Ltd ("Fitch" and together with Moody's and
S&P, the "Rating Agencies") stating that the Class [A-1] Notes, the Class [A-2]
Notes and the Class [A-3] Notes have each been rated ["AAA" by S&P, "Aaa" by
Moody's and "AAA" by Fitch];
(s) the Underwriters shall have received evidence satisfactory to it
and its counsel that on or prior to the Closing Date the Class [A-2] Notes, the
Class [A-3] Notes, the Class [B] Notes and the Class [C] Notes have been duly
authorized, executed, authenticated, issued and delivered pursuant to the Basic
Documents;
(t) the execution and delivery by all parties thereto of the Basic
Documents on or prior to the Closing Date;
(u) on or prior to the Closing Date the Issuer Trustee and the
▇▇.▇▇▇▇▇▇ Parties shall have furnished to the Underwriters such further
certificates and documents as the Underwriters shall reasonably request; and
(v) the Underwriters shall have received the Commission.
8. Indemnification and Contribution.
(a) Each of the ▇▇.▇▇▇▇▇▇ Parties agrees jointly and severally to
indemnify and hold harmless each Underwriter, each affiliate of an Underwriter
that assists such Underwriter in the distribution of the Offered Notes and each
person, if any, that controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the
30
Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, the legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, the Approved Offering
Materials or the Prospectus (as amended or supplemented if the ▇▇.▇▇▇▇▇▇ Parties
shall have furnished any amendments or supplements thereto) or in any Issuer
Information, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; except
(i) insofar as any such losses, claims, damages, liabilities,
legal fees and other expenses are caused by any untrue statement
or omission or alleged untrue statement or omission made (A) in
reliance upon and in conformity with information relating to any
Underwriter furnished to a ▇▇.▇▇▇▇▇▇ Party in writing by such
Underwriter expressly for use therein or (B) in the Prepayment
and Yield Information (as defined in the next paragraph); or
(ii) that such indemnity with respect to the Prospectus shall not
inure to the benefit of any Underwriter (or any person
controlling any Underwriter) from whom the person asserting any
such loss, claim, damage or liability, purchased the Offered
Notes which are the subject hereof, if (i) such person did not
receive a copy of the Prospectus (or the Prospectus as amended or
supplemented) at or prior to the confirmation of the sale of such
Offered Notes to such person, or (ii) the Underwriters failed to
comply with Section 6(V)(g) hereof, and the alleged untrue
statement contained in, or omission of a material fact from the
Prospectus was corrected in the Prospectus as amended or
supplemented; or
(iii) to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged
omission made therein relating to any information included in an
Underwriter Free Writing Prospectus or Underwriter Prepared
Issuer FWP, if any, that have been superseded by a revised
Underwriter Free Writing Prospectus or Underwriter Prepared
Issuer FWP if the Underwriter (A) has not complied with its
obligation to circulate a revised Underwriter Free Writing
Prospectus or Underwriter Prepared Issuer FWP in accordance with
Section 6(V)(vii) or (B) has not delivered them to the Trust
Manager no later than one (1) Business Day after delivery to
investors (in the case of (B), to the extent such loss, claim,
damage or liability is attributable to the failure to deliver)
provided that the ▇▇.▇▇▇▇▇▇ Parties shall indemnify the
Underwriter to the extent any misstatement or omission is
contained in the Pool Information.
For the purposes of this Agreement, the term "PREPAYMENT AND YIELD
INFORMATION" means that portion of the information in the Prospectus (or the
Prospectus as amended or supplemented) set forth under the sub-heading
"Prepayment and Yield Considerations -
31
Weighted Average Lives", including the table entitled "Percent of Initial
Principal Outstanding at the Following Percentages of Constant Prepayment Rate",
that is not Pool Information; provided, however, that information set forth
under that sub-heading that is not Pool Information shall not constitute
Prepayment and Yield Information to the extent such information is inaccurate or
misleading in any material respect as a result of it being based on Pool
Information that is inaccurate or misleading in any material respect.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Trust Manager, its directors, its officers who sign the
Registration Statement, the Issuer Trustee and ▇▇.▇▇▇▇▇▇ and each person that
controls a ▇▇.▇▇▇▇▇▇ Party or the Issuer Trustee within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act from and against any
and all losses, claims, damages and liabilities (including, without limitation,
the legal fees and other expenses incurred in connection with any suit, action
or proceeding or any claim asserted): (i) caused by information relating to such
Underwriter furnished to the ▇▇.▇▇▇▇▇▇ Parties in writing by such Underwriter
expressly for use in the Registration Statement or the Prospectus or any
amendment or supplement thereto; (ii) caused by Underwriter Free Writing
Prospectus or Underwriter Prepared Issuer FWP, if any, delivered to investors by
such Underwriter, except to the extent of any errors in the Underwriter Free
Writing Prospectus or Underwriter Prepared Issuer FWP that are caused by errors
in the Pool Information or are caused by a misstatement or omission resulting
from an error or omission in the Issuer Information supplied by the Issuer
Trustee or the ▇▇.▇▇▇▇▇▇ Parties to the Underwriter, (iii) caused by any untrue
statement or alleged untrue statement of material fact contained in any
Underwriter Prepared Issuer FWP (except for Issuer information or any
information accurately extracted from the Preliminary Prospectus Supplement or
any Issuer Free Writing Prospectus and included in such Underwriter Prepared
Issuer FWP), or any omission or alleged omission to state therein a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading (when considered in conjunction with
all information conveyed as of the date of the Contract of Sale), (iv) caused by
any Underwriter Prepared Issuer FWP for which the conditions set forth in
Section 6(V)(f)(v) above are not satisfied with respect to the prior consent by
the Trust Manager, and (v) resulting from the Underwriters' failure to comply
with Section 6(V)(e) or failure to file any Underwriter Free Writing Prospectus
required to be filed in accordance with Section 6(V)(f)(i).
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to subsection
(a) or (b) above, such person (the "INDEMNIFIED PERSON") shall promptly notify
the person against whom such indemnity may be sought (the "INDEMNIFYING PERSON")
in writing, and the Indemnifying Person, upon request of the Indemnified Person,
shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding.
In any such proceeding, any Indemnified Person shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person unless:
32
(i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary;
(ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified
Person; or
(iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential
differing interests between them.
It is understood that the Indemnifying Person shall not, in connection with
any proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters,
each affiliate of any Underwriter which assists such Underwriter in the
distribution of the Notes and such control persons of Underwriters shall be
designated in writing by the Underwriters and any such separate firm for the
Trust Manager, its directors, its officers who sign the Registration Statement,
▇▇.▇▇▇▇▇▇ and the Issuer Trustee and such control persons of each of the Issuer
Trustee and the ▇▇.▇▇▇▇▇▇ Parties shall be designated in writing by that party.
The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested an
Indemnifying Person to reimburse the Indemnified Person for fees and expenses of
counsel as contemplated by the third sentence of this subsection (c), the
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if:
(iv) such settlement is entered into more than 30 days after
receipt by such Indemnifying Person of the aforesaid request; and
(v) such Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the
date of such settlement.
No Indemnifying Person shall, without the prior written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such
proceeding.
(d) If the indemnification provided for in subsection (a) or (b) above
is unavailable to an Indemnified Person in respect of any losses, claims,
damages or liabilities
33
referred to therein, then each Indemnifying Person under such subsection, in
lieu of indemnifying such Indemnified Person thereunder, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the ▇▇.▇▇▇▇▇▇ Parties and the Issuer
Trustee on the one hand and the Underwriters on the other hand from the offering
of the Offered Notes, or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the ▇▇.▇▇▇▇▇▇ Parties and the Issuer Trustee on the one hand
and the Underwriters on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
▇▇.▇▇▇▇▇▇ Parties and the Issuer Trustee on the one hand and the Underwriters on
the other shall be deemed to be in the same respective proportions as the net
proceeds from the offering (before deducting expenses) received by the ▇▇.▇▇▇▇▇▇
Parties and the Issuer Trustee and the total underwriting discounts and the
commissions received by the Underwriters bear to the aggregate public offering
price of the Offered Notes. The relative fault of the ▇▇.▇▇▇▇▇▇ Parties and the
Issuer Trustee on the one hand and the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by a ▇▇.▇▇▇▇▇▇ Party or the
Issuer Trustee or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The ▇▇.▇▇▇▇▇▇ Parties, the Issuer Trustee and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 8
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in this
subsection (d) shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Notes underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 8 are several in proportion to the
respective principal amount of Offered Notes set forth opposite their names in
Schedule I hereto, and not joint.
The remedies provided for in this Section 8 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.
(e) The indemnity and contribution agreements contained in this
Section 8 and the representations and warranties of the Issuer Trustee and the
▇▇.▇▇▇▇▇▇ Parties set forth in this Agreement shall remain operative and in full
force and effect regardless of (i) any
34
termination of this Agreement, (ii) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter or by or on behalf of
the Issuer Trustee or a ▇▇.▇▇▇▇▇▇ Party, its officers or directors or any other
person controlling the Issuer Trustee or a ▇▇.▇▇▇▇▇▇ Party and (iii) acceptance
of and payment for any of the Offered Notes.
(f) To the extent that any payment of damages by a ▇▇.▇▇▇▇▇▇ Party
pursuant to subsection (a) above is determined to be a payment of damages
pursuant to paragraph 15 of Guidance Note AGN 120.3- "Purchase and Supply of
Assets (including Securities issued by SPVs)", being a Guidance Note to
Prudential Standard APS 120- "Funds Management and Securitisation" or any
successor thereto, such payment shall be subject to the terms therein (or the
terms of any equivalent provisions in any successor of Prudential Standard APS
120).
9. Termination. Notwithstanding anything herein contained, this Agreement
may be terminated in the absolute discretion of the Underwriters, by notice
given to the Issuer Trustee and each ▇▇.▇▇▇▇▇▇ Party, if after the execution and
delivery of this Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the London Stock Exchange or the Australian
Stock Exchange, (ii) trading of any securities of or guaranteed by the Issuer
Trustee or any ▇▇.▇▇▇▇▇▇ Party shall have been suspended on any exchange or in
any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York, Sydney or London shall have been declared by either
United States Federal, New York State, Commonwealth of Australia, New South
Wales State or United Kingdom authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of the Underwriters, is material and
adverse and which, in the judgment of the Underwriters, makes it impracticable
to market the Offered Notes on the terms and in the manner contemplated in the
Prospectus.
10. Effectiveness of Agreement; Default of Underwriters. This Agreement
shall become effective upon the later of (x) execution and delivery hereof by
the parties hereto and (y) release of notification of the effectiveness of the
Registration Statement (or, if applicable, any post-effective amendment) by the
SEC.
If on the Closing Date any one or more of the Underwriters shall fail or
refuse to purchase Offered Notes which it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Offered Notes
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate principal amount of the
Offered Notes to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the principal amount of Offered
Notes set forth opposite their respective names in Schedule I bears to the
aggregate principal amount of Offered Notes set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as the
Underwriters may specify, to purchase the Offered Notes which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the principal amount of Offered Notes that
any Underwriter has agreed to purchase pursuant to Section 1 be increased
pursuant to this Section 10 by an amount in excess of one-ninth of such
principal amount of Offered Notes without the written consent of such
Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail
or refuse to purchase Offered Notes which it or they have agreed to purchase
hereunder on such date, and the
35
aggregate principal amount of Offered Notes with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of Offered Notes
to be purchased on such date, and arrangements satisfactory to the Underwriters
and the Trust Manager for the purchase of such Notes are not made within 36
hours after such default, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter or the ▇▇.▇▇▇▇▇▇ Parties and the
Issuer Trustee. In any such case either the Underwriters or the Trust Manager
shall have the right to postpone the Closing Date, but in no event for longer
than seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
11. Expenses Upon Termination. If this Agreement shall be terminated by the
Underwriters, or any of them, because of any failure or refusal on the part of
the Issuer Trustee or a ▇▇.▇▇▇▇▇▇ Party to comply with the terms or to fulfill
any of the conditions of this Agreement, or if for any reason the Issuer Trustee
or a ▇▇.▇▇▇▇▇▇ Party shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
the ▇▇.▇▇▇▇▇▇ Parties jointly and severally agree to reimburse the Underwriters
or such Underwriters as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including the fees and
expenses of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering contemplated hereunder.
12. Successors. This Agreement shall inure to the benefit of and be binding
upon the ▇▇.▇▇▇▇▇▇ Parties, the Issuer Trustee, the Underwriters, each affiliate
of any Underwriter which assists such Underwriter in the distribution of the
Offered Notes, any controlling persons referred to herein and their respective
successors and assigns. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person, firm or corporation any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. No purchaser of Notes from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
13. Certain Matters Relating to the Issuer Trustee.
(a) The Issuer Trustee enters into this Agreement only in its capacity
as trustee of the Trust and in no other capacity. A liability incurred by the
Issuer Trustee acting in its capacity as trustee of the Trust arising under or
in connection with this Agreement is limited to and can be enforced against the
Issuer Trustee only to the extent to which it can be satisfied out of Assets of
the Trust out of which the Issuer Trustee is actually indemnified for the
liability. This limitation of the Issuer Trustee's liability applies despite any
other provision of this Agreement (other than Section 13(c)) to the contrary and
extends to all liabilities and obligations of the Issuer Trustee in any way
connected with any representation, warranty, conduct, omission, agreement or
transaction related to this Agreement.
(b) Each Underwriter and each of the ▇▇.▇▇▇▇▇▇ Parties may not ▇▇▇ the
Issuer Trustee in respect of liabilities incurred by the Issuer Trustee, acting
in its capacity as trustee of the Trust, in any capacity other than as trustee
of the Trust including seeking the appointment of
36
a receiver (except in relation to the Assets of the Trust), or a liquidator, an
administrator or any similar person to the Issuer Trustee or prove in any
liquidation, administration or arrangements of or affecting the Issuer Trustee
(except in relation to the Assets of the Trust).
(c) The provisions of this Section 13 will not apply to any obligation
or liability of the Issuer Trustee to the extent that it is not satisfied
because under the Master Trust Deed, this Agreement or any other Transaction
Document in relation to the Trust 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
wilful default (as defined in the Supplementary Terms Notice).
(d) It is acknowledged that the Relevant Parties (as defined in the
Supplementary Terms Notice) are responsible under the Basic Documents for
performing a variety of obligations relating to the Trust. No act or omission of
the Issuer Trustee (including any related failure to satisfy its obligations and
any breach of representations and warranties under this Agreement) will be
considered fraudulent, negligent or a wilful default for the purpose of Section
13(c) to the extent to which the act or omission was caused or contributed to by
any failure by any Relevant Party (other than any person for whom the Issuer
Trustee is responsible or liable for in accordance with any Transaction
Document) to fulfill its obligations relating to the Trust or by any other act
or omission of a Relevant Party or any other such person.
14. Actions by [Representative]; Notices. Any action by the Underwriters
hereunder may be taken by the any Underwriter on behalf of the Underwriters, and
any such action taken by the such Underwriter shall be binding upon the
Underwriters. All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the Underwriters shall be given
to [________], [____________]: (Facsimile No.: [_______]); Attention: [_______],
[___________] (Facsimile No.:[_______]); Attention: [_______] and [__________],
[________] (Facsimile No.: [_______]); Attention: [_________]. Notices to
▇▇.▇▇▇▇▇▇ shall be given to it at ▇▇.▇▇▇▇▇▇ Bank Limited, ▇▇▇▇▇ ▇, ▇-▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇ (Facsimile No.: (▇▇▇) ▇▇▇▇-▇▇▇▇);
Attention: Manager Securitisation. Notices to the Trust Manager shall be given
to it at c/o Company Secretary, ▇▇▇▇▇ ▇, ▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇,
▇▇▇▇ (Facsimile No.: (▇▇▇) ▇▇▇▇-▇▇▇▇); Attention: Manager Securitisation.
Notices to the Issuer Trustee shall be given to it at Perpetual Trustees
Consolidated Limited, ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇ (Facsimile
No.: (▇▇▇) ▇▇▇▇-▇▇▇▇); Attention: Manager, Securitisation.
15. Counterparts; Applicable Law. This Agreement may be signed in
counterparts, each of which shall be an original and all of which together shall
constitute one and the same instrument. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to the conflicts of laws provisions thereof.
16. Submission to Jurisdiction. Each of the ▇▇.▇▇▇▇▇▇ Parties and the
Issuer Trustee submits to the non-exclusive jurisdiction of any Federal or State
court in the City, County and State of New York, United States of America, in
any legal suit, action or proceeding based on or arising under this Agreement
and agrees that all claims in respect of such suit or proceeding may be
determined in any such court. Each of the ▇▇.▇▇▇▇▇▇ Parties and the Issuer
Trustee waives, to
37
the extent permitted by law, the defense of an inconvenient forum or objections
to personal jurisdiction with respect to the maintenance of such legal suit,
action or proceedings any objection to the laying of the venue of any such suit,
action or proceeding in any Federal or State court in the City, County and State
of New York, United States of America. To the extent that each of the ▇▇.▇▇▇▇▇▇
Parties and the Issuer Trustee or any of their respective properties, assets or
revenues may have or may hereafter become entitled to, or have attributed to it,
any right of immunity from any legal action, suit or proceeding, from setoff or
counterclaim, from the jurisdiction of any court, from service of process,
attachment upon or prior to judgment, or attachment in aid of execution of
judgment, or from execution of a judgment, or other legal process or proceeding
for the giving of any relief or for the enforcement of a judgment, in any such
jurisdiction, with respect to its obligations, liabilities or any other matter
under or arising out of or in connection with the issuance of the Offered Notes
or this Agreement, each of the ▇▇.▇▇▇▇▇▇ Parties and the Issuer Trustee hereby
irrevocably and unconditionally waives and agrees not to plead or claim any such
immunity and consents to such relief and enforcement.
17. Appointments of Process Agent.
(a) Each of the ▇▇.▇▇▇▇▇▇ Parties hereby designates and appoints CT
Corporation System, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the
"▇▇.▇▇▇▇▇▇ Process Agent"), as its authorized agent, upon whom process may be
served in any legal suit, action or proceeding based on or arising under or in
connection with this Agreement, it being understood that the designation and
appointment of CT Corporation System as such authorized agent shall become
effective immediately without any further action on the part of the each of the
▇▇.▇▇▇▇▇▇ Parties. Such appointment shall be irrevocable to the extent permitted
by applicable law and subject to the appointment of a successor agent in the
United States on terms substantially similar to those contained in this Section
17 and reasonably satisfactory to the Underwriters. If the ▇▇.▇▇▇▇▇▇ Process
Agent shall cease to act as agent for service of process, each of the ▇▇.▇▇▇▇▇▇
Parties shall appoint, without unreasonable delay, another such agent, and
notify the Underwriters of such appointment. Each of the ▇▇.▇▇▇▇▇▇ Parties
represents to the Underwriters that it has notified the ▇▇.▇▇▇▇▇▇ Process Agent
of such designation and appointment and that the ▇▇.▇▇▇▇▇▇ Process Agent has
accepted the same in writing. Each of the ▇▇.▇▇▇▇▇▇ Parties hereby authorizes
and directs the ▇▇.▇▇▇▇▇▇ Process Agent to accept such service. Each of the
▇▇.▇▇▇▇▇▇ Parties further agrees that service of process upon the ▇▇.▇▇▇▇▇▇
Process Agent and written notice of that service to it shall be deemed in every
respect effective service of process upon it in any such legal suit, action or
proceeding. Nothing in this Section 17 shall affect the right of any Underwriter
or any person controlling any Underwriter to serve process in any other manner
permitted by law.
(b) The Issuer Trustee hereby designates and appoints CT Corporation
System, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "IT Process
Agent"), as its authorized agent, upon whom process may be served in any legal
suit, action or proceeding based on or arising under or in connection with this
Agreement, it being understood that the designation and appointment of CT
Corporation System as such authorized agent shall become effective immediately
without any further action on the part of the Issuer Trustee. Such appointment
shall be irrevocable to the extent permitted by applicable law and subject to
the appointment of a successor agent in the United States on terms substantially
similar to those contained in this Section 17 and reasonably satisfactory to the
Underwriters. If the IT Process
38
Agent shall cease to act as agent for service of process, the Issuer Trustee
shall appoint, without unreasonable delay, another such agent, and notify the
Underwriters of such appointment. The Issuer Trustee represents to the
Underwriters that it has notified the IT Process Agent of such designation and
appointment and that the IT Process Agent has accepted the same in writing. The
Issuer Trustee hereby authorizes and directs the IT Process Agent to accept such
service. The Issuer Trustee further agrees that service of process upon the IT
Process Agent and written notice of that service to it shall be deemed in every
respect effective service of process upon it in any such legal suit, action or
proceeding. Nothing in this Section 17 shall affect the right of any Underwriter
or any person controlling any Underwriter to serve process in any other manner
permitted by law.
18. Currency Indemnity. The obligations of the parties to make payments
under this Agreement are in U.S. dollars. Such obligations shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in any currency other than U.S. dollars or any other realization in
such other currency, whether as proceeds of set-off security, guarantee,
distributions, or otherwise, except to the extent to which such tender recovery
or realization shall result in the receipt by the party which is to receive such
payment of the full amount of the U.S. dollars expressed to be payable under
this Agreement. The party liable to make such payment agrees to indemnify the
party which is to receive such payment for the amount (if any) by which the full
amount of U.S. dollars exceeds the amount actually received, and, in each case,
such obligation shall not be affected by judgment being obtained for any other
sums due under this Agreement. The parties agree that the rate of exchange which
shall be used to determine if such tender, recovery or realization shall result
in the receipt by the party which is to receive such payment of the full amount
of U.S. dollars expressed to be payable under this Agreement shall be the noon
buying rate in New York City for cable transfers in such foreign currency as
certified for customs purposes by the Federal Reserve Bank of New York of the
business day preceding that on which the judgment becomes a final judgment or,
if such noon buying rate is not available, the rate of exchange shall be the
rate at which in accordance with normal banking procedures the Underwriters
could purchase United States dollars with such foreign currency on the business
day preceding that on which the judgment becomes a final judgment.
39
If the foregoing is in accordance with your understanding, please sign and
return the enclosed counterparts hereof.
Very truly yours,
▇▇.▇▇▇▇▇▇ BANK LIMITED
By:
--------------------------------------
Name:
Title:
CRUSADE MANAGEMENT LIMITED
By:
--------------------------------------
Name:
Title:
PERPETUAL TRUSTEES CONSOLIDATED LIMITED
in its capacity as Trustee of the Trust
By:
--------------------------------------
Name:
Title:
S-1
Accepted: [______] [__], 20[__]
[_______________]
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
S-2
[_______________]
By:
----------------------------
Name:
Title:
S-3
[_______________]
By:
----------------------------
Name:
Title:
S-4
[_______________]
By:
----------------------------
Name:
Title:
S-5
SCHEDULE I
----------
PRINCIPAL AMOUNT OF
UNDERWRITER SECURITIES TO BE PURCHASED
--------------------------
[_______]........................................ US$[_______]
[_______]........................................ US$[_______]
[_______]........................................ US$[_______]
Total............................ US$[_______]
============
1
SCHEDULE II
-----------
List of 128F(9) Offshore Associates of the Issuer Trustee
---------------------------------------------------------
[TO BE INSERTED]
2
SCHEDULE III
------------
List of 128F(9) Associates of the ▇▇.▇▇▇▇▇▇
-------------------------------------------
[TO BE INSERTED]
3
TABLE OF CONTENTS
PAGE
1. INTRODUCTION..............................................................1
2. PURCHASE AND SALE.........................................................4
3. OFFERING..................................................................5
4. DELIVERY AND PAYMENT......................................................5
5. REPRESENTATIONS AND WARRANTIES............................................5
I. Representations and Warranties of the Issuer Trustee.................5
II. Representations and Warranties of the ▇▇.▇▇▇▇▇▇ Parties..............8
III. Representations and Warranties of the Trust Manager.................11
6. COVENANTS AND AGREEMENTS.................................................12
I. Covenants and Agreements of the Issuer Trustee......................12
II. Covenants and Agreements of the ▇▇.▇▇▇▇▇▇ Parties...................13
III. Selling Restrictions................................................18
IV. Trust Manager Direction to Issuer Trustee...........................21
V. Covenants and Agreements of the Underwriters........................21
7. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS........................28
8. INDEMNIFICATION AND CONTRIBUTION.........................................31
9. TERMINATION..............................................................35
10. EFFECTIVENESS OF AGREEMENT; DEFAULT OF UNDERWRITERS......................35
11. EXPENSES UPON TERMINATION................................................36
12. SUCCESSORS...............................................................36
13. CERTAIN MATTERS RELATING TO THE ISSUER TRUSTEE...........................36
14. ACTIONS BY [REPRESENTATIVE]; NOTICES.....................................37
15. COUNTERPARTS; APPLICABLE LAW.............................................37
16. SUBMISSION TO JURISDICTION...............................................38
17. APPOINTMENTS OF PROCESS AGENT............................................38
18. CURRENCY INDEMNITY.......................................................39
i
