U.S. $898,000,000
CRUSADE MANAGEMENT LIMITED
CRUSADE GLOBAL TRUST OF 2001
U.S. $180,000,000 Class A-1 Mortgage Backed Floating Rate Notes
U.S. $718,000,000 Class A-2 Mortgage Backed Floating Rate Notes
UNDERWRITING AGREEMENT
----------------------
February __, 2001
Credit Suisse First Boston Corporation
As Representative of the Several Underwriters,
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
1. Introductory. Perpetual Trustees Consolidated Limited (ABN 81 004 029 841), a
limited liability public company under the Corporations Law of Victoria,
Australia in its capacity as trustee of the Crusade Global Trust No. 1 of 2001
(the "Issuer Trustee") at the direction of Crusade Management Limited (ABN 90
072 715 916), as manager (the "Trust Manager") of Crusade Global Trust No. 1 of
2001 (the "Trust") proposes to sell to the several Underwriters listed in
Schedule I hereto (the "Underwriters"), for whom you are acting as
representative (the "Representative"), U.S.$180,000,000 principal amount of
Class A-1 Mortgage Backed Floating Rate Notes (the "Class A-1 Notes") and
U.S.$718,000,000 principal amount of Class A-2 Mortgage Backed Floating Rate
Notes (the "Class A-2 Notes" and together with the Class A-1 Notes, the "Notes")
issued by the Trust. Each Note will be secured by the assets of the Trust. The
assets of the Trust include, among other things, a pool of variable and fixed
rate residential housing loans (the "Housing Loans") originated or acquired by
Xx.Xxxxxx Bank Limited (ABN 92 055 513 070) ("Xx.Xxxxxx") including all monies
at any time paid or payable thereon or in respect thereof from, after February
16, 2001 (the "Cut-Off Date") with respect to payments of principal and after
the Closing Date (as defined herein) with respect to payments of interest,
rights under certain insurance policies with respect to the Housing Loans, the
Collection Account and the rights of the Issuer Trustee under the Basic
Documents. The Trust will be created pursuant to the Master Trust Deed, dated
March 14, 1998 (the "Master Trust Deed") and a supplementary terms notice, to be
dated on or about February 28, 2001 (the "Supplementary Terms Notice"), each
among the Issuer Trustee, Xx.Xxxxxx and the Trust Manager, which sets forth
specific provisions regarding the Trust and details the provisions of the Notes.
The Note Trust Deed, to be dated on or about February 28, 2001 (the "Note Trust
Deed") by and among the Issuer Trustee, the Trust Manager and Wilmington Trust
Company (the "Note Trustee") provides for the issuance and registration of the
Notes in accordance with the terms and
conditions attached thereto. Xx.Xxxxxx will act as seller and as servicer (the
"Servicer") of the Housing Loans. The Trust Manager and Xx.Xxxxxx are each a
"Xx.Xxxxxx Party" and collectively are referred to herein as the "Xx.Xxxxxx
Parties."
The Trust Manager has prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement, including a prospectus, relating to the Notes.
When used in this Agreement, "Basic Documents" shall mean each of the
Master Trust Deed, the Supplementary Terms Notice, the Servicing Agreement, the
Notes, the Security Trust Deed, the Note Trust Deed, the Fixed-Floating Rate
Swap, the Currency Swap, the Basis Swap, and the Agency Agreement. To the extent
not defined herein, capitalized terms used herein have the meanings assigned to
such terms in the Prospectus (as defined hereinafter).
In this Agreement, a reference to the Issuer Trustee is a reference to
the Issuer Trustee in its capacity as trustee of the Trust only, and in no other
capacity. Any reference to the assets, business, property or undertaking of the
Issuer Trustee is a reference to the Issuer Trustee in that capacity only.
The Xx.Xxxxxx Parties and the Issuer Trustee hereby agree with the
several Underwriters named on Schedule I as follows:
2. Representations and Warranties of the Issuer Trustee and the Xx.Xxxxxx
Parties.
I. The Issuer Trustee represents and warrants to each Underwriter that:
(a) Since September 30, 2000, there has been no material adverse
change or any development involving a prospective material adverse
change in the condition (financial or otherwise) of the Issuer
Trustee, except as disclosed in the Prospectus, which is material in
the context of the Issuer Trustee performing its obligations and
duties under the Notes and each Basic Document to which it is or is to
be a party.
(b) The Issuer Trustee is a corporation duly incorporated and existing
under the laws of Victoria; it is lawfully qualified and holds all
Authorisations (as defined in the Master Trust Deed) necessary to
carry on its business as described in the Prospectus and to issue the
Notes and to act as required by each Basic Document to which it is or
is to be a party and by law to comply with any requirements which
affect the operations or business of the Trust or the Issuer Trustee's
obligations under the Basic Documents to which it is a party and no
other thing is required to be done by the Issuer Trustee (including
without limitation the making of any filing or registration) in order
to issue the Notes or to execute and act as required by each Basic
Document to which it is to be a party.
2
(c) This Agreement has been duly authorized, executed and delivered by
the Issuer Trustee.
(d) The Notes have been duly authorized, and, when issued, delivered
and paid for pursuant to this Agreement, will have been duly executed,
issued and delivered and will constitute valid and binding obligations
of the Issuer Trustee, entitled to the benefits provided by the Note
Trust Deed and the Security Trust Deed, subject as to enforceability
to applicable bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation or other similar laws affecting the
enforcement of creditors' rights generally and to general equitable
principles. Each of the Basic Documents to which the Issuer Trustee is
a party have been duly authorized by the Issuer Trustee, and, when
executed and delivered by the Issuer Trustee and each of the other
parties thereto, will constitute a legal, valid and binding obligation
of the Issuer Trustee, enforceable against the Issuer Trustee in
accordance with its terms, subject as to enforceability to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation or other similar laws affecting the enforcement of
creditors' rights generally and to general equitable principles.
(e) The Issuer Trustee is not, nor with the giving of notice or lapse
of time or both would be, in violation of or in default under, (i) its
Constitution or (ii) any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Issuer Trustee
is a party or by which it or any of its properties is bound, except in
the case of (ii) for violations and defaults which individually and in
the aggregate would not have a material adverse effect on the
transactions contemplated herein or on the Basic Documents; the issue
and sale of the Notes and the performance by the Issuer Trustee of all
of the provisions of its obligations under the Notes, the Basic
Documents and this Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, any agreement or instrument to which the Issuer Trustee is a
party or by which the Issuer Trustee is bound or to which any of the
property or assets of the Trust is subject, nor will any such action
result in any violation of the provisions of the Constitution of the
Issuer Trustee or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Issuer Trustee, or any of its properties; and,
to the knowledge of the Issuer Trustee, no consent, approval,
authorization, order, license, registration or qualification of or
with any such court or governmental agency or body is required for the
issue and sale of the Notes or the consummation by the Issuer Trustee
of the transactions contemplated by this Agreement or the Basic
Documents.
(f) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental investigations, actions, suits or
proceedings pending or, to the knowledge of the Issuer Trustee,
threatened against or affecting the Issuer Trustee or the Trust, or to
which the Issuer Trustee is or may be a party or to
3
which the Issuer Trustee or any property of the Trust is or may be the
subject, which will have an impact on the transactions contemplated by
this Agreement.
(g) The representations and warranties of the Issuer Trustee contained
in the Basic Documents are true and correct in all material respects.
(h) To the Issuer Trustee's knowledge, no event has occurred which
would entitle the Trust Manager to direct the Issuer Trustee to retire
as trustee of the Trust under clause 20 of the Master Trust Deed.
(i) The Prospectus is accurate in all material respect and does not
contain any untrue statement of a material fact or omit to state any
material fact necessary to make the information therein, in the light
of the circumstances under which it is given, not misleading and all
reasonable inquires have been made to ascertain the accuracy of all
such information.
(j) The Issuer Trustee has not taken any corporate action nor (to the
best of its knowledge and belief) have any other steps been taken or
legal proceedings been started or threatened against the Issuer
Trustee for its winding-up, dissolution or reorganization or for the
appointment of a receiver, receiver and manager, administrator,
provisional liquidator or similar officer of it or of any or all of
its assets.
(k) Subject to compliance with Section 128F of the Income Tax
Assessment Act (1936) (the "Tax Act") and compliance by the
Underwriters with Section 10(b) hereto, no stamp or other duty is
assessable or payable in, and no withholding or deduction for any
taxes, duties, assessments or governmental charges of whatever nature
is imposed or made for or on account of any income, registration,
transfer or turnover taxes, customs or other duties or taxes of any
kind, levied, collected, withheld or assessed by or within, the
Commonwealth of Australia or any sub-division of or authority therein
or thereof having power to tax in such jurisdiction, in connection
with the authorization, execution or delivery of the agreements to
which the Issuer Trustee is to be a party or with the authorization,
execution, issue, sale or delivery of the Notes and the performance of
the Issuer Trustee's obligations under the agreements, other than, in
the case of stamp duty, following a Title Perfection Event, to which
it is to be a party and payments under the Notes.
(l) The 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.
(m) 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 an Issuer Trustee's Default (as defined in the
Prospectus).
4
II. The Xx.Xxxxxx parties, jointly and severally, represent and warrant to each
Underwriter and the Issuer Trustee that:
(a) The Trust Manager has filed a registration statement on Form S-11
(No. 333-96121), including a form of preliminary prospectus, for
registration of the Notes under the Securities Act and has filed such
amendments thereto and will file such additional amendments thereto
and such amended prospectuses as may hereafter be required. Such
registration statement in the form in which it first became effective
and as amended or supplemented thereafter (if applicable) and the
prospectus constituting a part thereof (including all information
deemed to be a part thereof pursuant to Rule 430A(b) of the rules and
regulations of the Commission under the Securities Act) as amended or
supplemented thereafter (if applicable) under the Securities Act are
herein referred to as the "Registration Statement" and the
"Prospectus", respectively, except that if any revised prospectus
shall be provided to you for use in connection with the offering of
the Notes which differs from the Prospectus on file with the
Commission at the time the Registration Statement becomes effective
(whether or not such revised prospectus is required to be filed
pursuant to Rule 424(b)), the term "Prospectus" shall refer to such
revised prospectus from and after the time it is first provided to you
for such use.
(b) The Registration Statement has been declared effective under the
Securities Act by the Commission. No stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge
of the Trust Manager, threatened by the Commission. The Registration
Statement and Prospectus (as amended or supplemented if the Trust
Manager shall have furnished any amendments or supplements thereto)
comply, or will comply, as the case may be, in all material respects
with the Securities Act and the rules and regulations of the
Commission thereunder and the Trust Indenture Act of 1939, as amended,
and the rules and regulations of the Commission thereunder
(collectively, the "Trust Indenture Act") and do not and will not, as
of the applicable effective date as to the Registration Statement and
any amendment thereto and as of the date of the Prospectus and any
amendment or supplement thereto, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
and the Prospectus, as amended or supplemented, if applicable, at the
Closing Date will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; except that the foregoing representations and
warranties shall not apply to (i) that part of the Registration
Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) of the Note Trustee under the Trust Indenture
Act, and (ii) statements in or omissions from the Registration
Statement or the Prospectus based upon written information furnished
to the Trust Manager by any Underwriter through the Representative
5
specifically for use therein, it being understood and agreed that the
only such information is that described as such in Section 7(b).
(c) Except as described in the Prospectus, since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, there has been no material adverse change, nor any
development involving a prospective material adverse change, in the
condition (financial or other), business, properties, stockholders'
equity or results of operations of any Xx.Xxxxxx Party taken as a
whole.
(d) Each Xx.Xxxxxx Party is a corporation duly incorporated and
validly existing under the Corporations Law of the Commonwealth of
Australia; each St. Xxxxxx Party has the power and authority
(corporate and other) to own its properties and conduct its business
as described in the Prospectus and to enter into and perform its
obligations under this Agreement and the Basic Documents to which it
is a party and carry out the transactions contemplated by such Basic
Documents; each Xx.Xxxxxx Party has been duly qualified or licensed
for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification or
licensing, other than where the failure to be so qualified or licensed
or in good standing would not have a material adverse effect on the
transactions contemplated herein or in the Basic Documents.
(e) This Agreement has been duly authorized, executed and delivered by
each of the Xx.Xxxxxx Parties.
(f) The Basic Documents to which any Xx.Xxxxxx party is a party have
been duly authorized by the applicable Xx.Xxxxxx Party, and upon
effectiveness of the Registration Statement, the Note Trust Deed will
have been duly qualified under the Trust Indenture Act and, when
executed and delivered by each Xx.Xxxxxx Party which is a party
thereto and each of the other parties thereto, each of the Basic
Documents to which any Xx.Xxxxxx Party is a party will constitute a
legal, valid and binding obligation of each such Xx.Xxxxxx Party,
enforceable against each such Xx.Xxxxxx Party in accordance with its
terms, subject as to enforceability to applicable bankruptcy,
insolvency, reorganization, conservatorship, receivership, liquidation
or other similar laws affecting the enforcement of creditors' rights
generally and to general equitable principles; and the Notes and the
Basic Documents each will conform to the descriptions thereof in the
Prospectus.
(g) Neither Xx.Xxxxxx Party is, nor with the giving of notice, or
lapse of time or both would be, in violation of or in default under,
(i) its Constitution or (ii) any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which it is a party
or by which it or any of its properties is bound, except in the case
of (ii) for violations and defaults which individually and in the
aggregate would not have a material adverse effect on the transactions
contemplated herein or in the Basic Documents; the issue and sale of
the Notes
6
and the performance by each Xx.Xxxxxx Party of all of the provisions
of its obligations under the Notes, the Basic Documents and this
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which either St. Xxxxxx Party is a party or by which
either St. Xxxxxx Party is bound or to which any of the property or
assets of either St. Xxxxxx Party is subject, nor will any such action
result in any violation of the provisions of the Constitution of
either St. Xxxxxx Party or any applicable law or statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over either Xx.Xxxxxx Party, or any of its properties;
and no consent, approval, authorization, order, license, registration
or qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Notes or the
consummation by either Xx.Xxxxxx Party of the transactions
contemplated by this Agreement or the Basic Documents, except such
consents, approvals, authorizations, orders, licenses, registrations
or qualifications as have been obtained under the Securities Act, the
Trust Indenture Act and as may be required under state securities or
"Blue Sky" laws in connection with the purchase and distribution of
the Notes by the Underwriters.
(h) Except as disclosed in the Prospectus, there are no legal or
governmental investigations, actions, suits or proceedings pending or,
to the knowledge of either St. Xxxxxx Party, threatened against or
affecting either St. Xxxxxx Party or its properties or, to which
either St. Xxxxxx Party is or may be a party or to which either St.
Xxxxxx Party or any property of either St. Xxxxxx Party is or may be
the subject, in each case, which will have an impact on the
transactions contemplated by this Agreement; and there are no
statutes, regulations, contracts or other documents that are required
to be filed as an exhibit to the Registration Statement or required to
be described in the Registration Statement or the Prospectus which are
not filed or described as required.
(i) The representations and warranties of each St. Xxxxxx Party
contained in the Basic Documents are true and correct in all material
respects.
(j) KPMG are independent public accountants with respect to each St.
Xxxxxx Party within the meaning of the standards established by the
American Institute of Certified Public Accountants.
(k) Each St. Xxxxxx Party owns, possesses or has obtained all
Authorisations (as defined in the Master Trust Deed), licenses,
permits, certificates, consents, orders, approvals and other
authorizations from, and has made all declarations and filings with,
all federal, state, local and other governmental authorities
(including foreign regulatory agencies), all self-regulatory
organizations and all courts and other tribunals, domestic or foreign,
necessary to perform its obligations under this Agreement and the
Basic Documents, and neither St. Xxxxxx Party has
7
received any actual notice of any proceeding relating to revocation or
modification of any such Authorisation, license, permit, certificate,
consent, order, approval or other authorization; and each Xx.Xxxxxx
Party is in compliance with all laws and regulations necessary for the
performance of its obligations under this Agreement and the Basic
Documents.
(l) To the knowledge of any Xx.Xxxxxx Party, no event has occurred
which would entitle either Xx.Xxxxxx Party to direct the Issuer
Trustee to retire as trustee of the Trust under clause 20 of the
Master Trust Deed.
(m) Neither St. Xxxxxx Party has taken any corporate action nor (to
the best of its knowledge and belief) have any other steps been taken
or legal proceedings been started or threatened against either St.
Xxxxxx Party for its winding-up, dissolution or reorganization or for
the appointment of a receiver, receiver and manager, administrator,
provisional liquidator or similar officer of it or of any or all of
its assets.
(n) Subject to compliance with Section 128F of the Tax Act, no stamp
or other duty is assessable or payable in, and no withholding or
deduction for any taxes, duties, assessments or governmental charges
of whatever nature is imposed or made for or on account of any income,
registration, transfer or turnover taxes, customs or other duties or
taxes of any kind, levied, collected, withheld or assessed by or
within, the Commonwealth of Australia or any sub-division of or
authority therein or thereof having power to tax in such jurisdiction,
in connection with the authorization, execution or delivery of the
agreements to which it is to be a party or with the authorization,
execution, issue, sale or delivery of the Notes and the performance of
either Xx.Xxxxxx Parties' obligations under the agreements to which it
is to be a party and the Notes.
(o) No event has occurred or circumstances arisen which, had the Notes
already been issued, would (whether or not with the giving of notice
and/or the passage of time and/or the fulfillment of any other
requirement) constitute a Manager's Default (as defined in the
Prospectus).
(p) Since ________ __, 2000 there has been no material adverse change
or any development involving a prospective material adverse change in
the condition (financial or otherwise) of either of the Xx.Xxxxxx
Parties; and
(q) As of the Closing Date, Xx.Xxxxxx will have transferred to the
Issuer Trustee a valid equitable assignment of each related Housing
Loan offered for sale by it to the Issuer Trustee.
3. Purchase, Sale and Delivery of Notes. On the basis of the representations,
warranties and agreements contained herein, but subject to the terms and
conditions herein set forth, the Issuer Trustee, at the direction of the Trust
Manager, agrees to sell the Notes to the Underwriters, and the Underwriters
agree, severally and not jointly, to purchase from the
8
Issuer Trustee at a purchase price of _________% of the principal amount of the
Class A-1 Notes and _________% of the principal amount of the Class A-2 Notes
(which amount shall be net of the commissions payable to the Underwriters) the
respective principal amount of each class of Notes set forth opposite the names
of the Underwriters in Schedule A hereto.
The Issuer Trustee will deliver against payment of the purchase price the
Notes in the form of one or more permanent Global Notes in definitive form (the
"Global Notes") deposited with the Note Trustee as custodian for The Depository
Trust Company (the "DTC") and registered in the name of Cede & Co., as nominee
for DTC. Interests in any permanent Global Notes will be held only in book-entry
form through DTC, except in the limited circumstances described in the
Prospectus. Payment for the Notes shall be made by the Underwriters in Federal
(same day) funds by official bank check or checks or wire transfer to an account
at a bank acceptable to Credit Suisse First Boston Corporation ("CSFBC") drawn
to the order of the Currency Swap Provider at the office of Xxxxx, Brown &
Xxxxx, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 not later than 10:00 A.M., New
York City time, on February 28, 2001, or at such other time not later than seven
full business days thereafter as CSFBC and the Trust Manager determine, such
time being herein referred to as the "Closing Date," against delivery to the
Note Trustee as custodian for DTC of the Global Notes representing all of the
Notes. The Global Notes will be made available for checking at the above office
at least 24 hours prior to the Closing Date.
4. Offering by Underwriters. The Xx.Xxxxxx Parties and the Issuer Trustee
understand that the several Underwriters propose to offer the Notes for sale to
the public as set forth in the Prospectus.
5. Certain Agreements of the Issuer Trustee and the Xx.Xxxxxx Parties.
I. The Xx.Xxxxxx Parties, jointly and severally, covenant and agree with each of
the several Underwriters as follows:
(a) The Trust Manager will file with the Commission pursuant to and in
accordance with Rule 430A and subparagraph (4) of Rule 424(b) copies
of an amended Prospectus containing all of the information omitted
from the Prospectus in reliance upon Rule 430A at the time the
Registration Statement became effective. The Trust Manager will advise
CSFBC promptly of any such filing pursuant to Rule 424(b).
(b) The Trust Manager will advise CSFBC promptly of any proposal to
amend or supplement the Registration Statement as filed or the related
Prospectus and will not effect such amendment or supplementation
without CSFBC's consent; and the Trust Manager will also advise CSFBC
promptly of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement and will use its
best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
9
(c) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Securities Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the
Securities Act, the Trust Manager will promptly notify CSFBC of such
event and will promptly prepare and file with the Commission, at its
own expense, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such
compliance. Neither CSFBC's consent to, nor the Underwriters' delivery
of, any such amendment or supplement shall constitute a waiver of any
of the conditions set forth in Section 6.
(d) As soon as practicable, the Trust Manager will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the effective date of the
Registration Statement which will satisfy the provisions of Section
11(a) of the Securities Act.
(e) The Trust Manager will furnish to the Representative copies of
each Registration Statement (3 of which will be signed and will
include all exhibits), each related preliminary prospectus, and, so
long as a prospectus relating to the Notes is required to be delivered
under the Securities Act in connection with sales by any Underwriter
or dealer, the Prospectus and all amendments and supplements to such
documents, in each case in such reasonable quantities as CSFBC
requests. The Prospectus shall be so furnished on or prior to 3:00
P.M., New York time, on the business day following the later of the
execution and delivery of this Agreement or the effective time of the
Registration Statement. All other documents shall be so furnished as
soon as available. The Trust Manager will pay the expenses of printing
and distributing to the Underwriters all such documents.
(f) The Trust Manager will arrange for the qualification of the Notes
for sale and the determination of their eligibility for investment
under the laws of such jurisdictions as CSFBC designates and will
continue such qualifications in effect so long as required for the
distribution.
(g) So long as the Notes are outstanding, the Trust Manager will
furnish to the Representative (i) copies of each certificate, the
annual statements of compliance and the annual independent certified
public accountant's audit report on the financial statements furnished
to the Issuer Trustee or the Note Trustee pursuant to the Basic
Documents by first class mail as soon as practicable after such
statements and reports are furnished to the Issuer Trustee or the Note
Trustee, (ii) copies of each amendment to any of the Basic Documents,
(iii) on each Determination Date or as soon thereafter as practicable,
the Bond Factor as of the related Record Date shall be available to
the Representative on Bloomberg and
10
Reuters, (iv) copies of all reports or other communications (financial
or other) furnished to holders of the Notes, and copies of any reports
and financial statements furnished to or filed with the Commission,
any governmental or regulatory authority or any national securities
exchange, and (v) from time to time such other information concerning
the Trust or the Trust Manager as the Representative may reasonably
request.
(h) To the extent, if any, that the ratings provided with respect to
the Notes by the Rating Agencies are conditional upon the furnishing
of documents or the taking of any other action by the Trust Manager,
the Trust Manager shall use its best efforts to furnish such documents
and take any other such action.
(i) The Trust Manager will assist the Representative in making
arrangements with DTC, Euroclear and Clearstream, Luxembourg
concerning the issue of the Notes and related matters.
(j) The Trust Manager will not take, or cause to be taken, any action
and will not knowingly permit any action to be taken which it knows or
has reason to believe would result in the Notes not being assigned the
ratings referred to in Section 6(n) below.
(k) Xx.Xxxxxx will pay all expenses incident to the performance of the
Xx.Xxxxxx Parties' obligations under this Agreement, for any filing
fees and other expenses (including fees and disbursements of
underwriters' counsel and issuers' counsel) incurred in connection
with qualification of the Notes for sale under the laws of such
jurisdictions as CSFBC designates and the printing of memoranda
relating thereto, for any fees charged by the independent accountants,
for any fees charged by the rating agencies for the rating of the
Notes, for any travel expenses of any of the Xx.Xxxxxx Parties'
officers and employees and any other expenses of either Xx.Xxxxxx
Party in connection with attending or hosting meetings with
prospective purchasers of the Notes and for expenses incurred in
distributing preliminary prospectuses and the Prospectus (including
any amendments and supplements thereto) to the Underwriters.
(l) Xx.Xxxxxx Bank will indemnify and hold harmless the Underwriters
against any documentary, stamp or similar issue tax, including any
interest and penalties, on the creation, issue and sale of the Notes
and on the execution and delivery of this Agreement. All payments to
be made by the Issuer Trustee and the Xx.Xxxxxx Parties hereunder
shall be made without withholding or deduction for or on account of
any present or future taxes, duties or governmental charges whatsoever
unless the Trust Manager is compelled by law to deduct or withhold
such taxes, duties or charges. In that event, the Trust Manager shall
pay such additional amounts as may be necessary in order that the net
amounts received after such withholding or deduction shall equal the
amounts that would have been received if no withholding or deduction
had been made.
11
(m) Neither Xx.Xxxxxx Party will offer, sell, contract to sell, pledge
or otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Securities Act relating
to asset-backed securities, or publicly disclose the intention to make
any such offer, sale, pledge, disposition or filing, without the prior
written consent of CSFBC for a period beginning at the date of this
Agreement and ending at the later of the Closing Date or the lifting
of trading restrictions by the Representative.
II. The Issuer Trustee covenants and agrees with each of the several
Underwriters as follows:
(a) The Issuer Trustee will use the net proceeds received by the
Issuer Trustee from the sale of the Notes pursuant to this Agreement
in the manner specified in the Prospectus under the caption "Use of
Proceeds".
(b) The Issuer Trustee will pay any stamp duty or other issue,
transaction, value added or similar tax, fee or duty (including court
fees) in relation to the execution of, or any transaction carried out
pursuant to, the Agreements or in connection with the issue and
distribution of the Notes or the enforcement or delivery of this
Agreement.
(c) The Issuer Trustee will use all reasonable efforts to procure
satisfaction on or before the Closing Date of the conditions referred
to in Section 6 below and, in particular (i) the Issuer Trustee shall
execute those of the Basic Documents required to be executed by the
Issuer Trustee not executed on the date hereof on or before the
Closing Date, and (ii) the Issuer Trustee will assist the
Representative to make arrangements with DTC, Euroclear and
Clearstream, Luxembourg concerning the issue of the Notes and related
matters.
(d) The Issuer Trustee will procure or cause to be procured that the
charges created by or contained in the Security Trust Deed are
registered within all applicable time limits in all appropriate
registers.
(e) The Issuer Trustee will perform all its obligations under, and
subject to, each of the Basic Documents to which it is a party which
are required to be performed prior to or simultaneously with closing
on the Closing Date.
(f) The Issuer Trustee will not take, or cause to be taken, any action
and will not knowingly permit any action to be taken which it knows or
has reason to believe would result in the Notes not being assigned the
ratings referred to in Section 6(n) below.
(g) The Issuer Trustee will not prior to or on the Closing Date amend
the terms of any Basic Document to which it is a party nor execute any
of the Basic Documents to which it is a party other than in the agreed
form without the consent of the Representative.
12
6. Conditions of the Obligations of the Underwriters. The obligations of the
several Underwriters to purchase and pay for the Notes on the Closing Date will
be subject to the accuracy of the representations and warranties on the part of
the Xx.Xxxxxx Parties and the Issuer Trustee herein, to the accuracy of the
statements of officers of the Xx.Xxxxxx Parties and the Issuer Trustee made
pursuant to the provisions hereof, to the performance of the Xx.Xxxxxx Parties
and the Issuer Trustee of their obligations hereunder and to the following
additional conditions precedent:
(a) The Registration Statement shall have become effective, or if a
post-effective amendment is required to be filed under the Securities
Act, such post-effective amendment shall have become effective, not
later than 5:00 P.M., New York City time, on the date hereof or on
such later date to which you have consented; and no stop order
suspending the effectiveness of the Registration Statement or any
post-effective amendment shall be in effect, and no proceedings for
such purpose shall be pending before or threatened by the Commission.
The Prospectus, including all price-related information previously
omitted from the prospectus which formed a part of the Registration
Statement at the time it became effective, in accordance with Rule
430A, shall have been transmitted to the Commission for filing
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Securities Act
and in accordance with Section 5.1.(a) hereof; and prior to the
Closing Date the Trust Manager shall have provided evidence
satisfactory to the Representative of such timely filing, and all
requests for additional information shall have been complied with to
the satisfaction of the Representative.
(b) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of any of the Xx.Xxxxxx
Parties, the Issuer Trustee or any Swap Party and their respective
subsidiaries, in each case, taken as one enterprise which, in the
judgment of a majority in interest of the Underwriters including the
Representative, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Notes; (ii) any downgrading in the rating
of any debt securities of any of the Trust Manager, Xx.Xxxxxx, the
Issuer Trustee or any Swap Party by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Securities Act), or any public announcement that any
such organization has under surveillance or review its rating of the
Notes or any debt securities of any of the Trust Manager, Xx.Xxxxxx,
the Issuer Trustee or any Swap Party (other than an announcement with
positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) any material suspension
or material limitation of trading in securities generally on the New
York Stock Exchange, the London Stock Exchange or any other exchange
on which the Notes are listed, or any setting of minimum prices for
trading on such exchange, or any suspension of trading of any
securities of any of the Trust
13
Manager, Xx.Xxxxxx, the Issuer Trustee or any Swap Party on any
exchange or in the over-the-counter market; (iv) any banking
moratorium declared by U.S. Federal, New York, London, England or
Australia authorities; or (v) any outbreak or escalation of major
hostilities in which the United States, London, England or Australia
is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the
judgment of a majority in interest of the Underwriters including the
Representative, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable
to proceed with completion of the public offering or the sale of and
payment for the Notes.
(c) The Representative shall have received a certificate, dated such
Closing Date, of the managing director, director or any chief general
manager of each Xx.Xxxxxx Party and (as to paragraphs (i) and (ii)
below only) of an authorized officer of the Issuer Trustee in which
such officers, to the best of their knowledge after reasonable
investigation, shall state that: (i) the representations and
warranties of such entity in this Agreement are true and correct; (ii)
such entity has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or
prior to such Closing Date; (iii) in the case of the Trust Manager, no
stop order suspending the effectiveness of any Registration Statement
has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission; and (iv) subsequent
to the date of the most recent financial statements supplied by the
Xx.Xxxxxx Parties to the Underwriters or the Representative on behalf
of the Underwriters, there has been no material adverse change, nor
any development or event involving a prospective material adverse
change, in the condition (financial or other), business, properties or
results of operations of such entity and its subsidiaries taken as a
whole except as set forth in or contemplated by the Prospectus or as
described in such certificate.
(d) Xxxxx Xxxxx & Xxxxxxx, Australian counsel for Xx.Xxxxxx, the Trust
Manager and the Servicer, shall have furnished to the Representative
their written opinion, dated the Closing Date, in form and substance
satisfactory to the Representative, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters, a copy of which opinion is
attached hereto as Exhibit A.
(e) Xxxxx Xxxxx & Xxxxxxx, Australian tax counsel for Xx.Xxxxxx, the
Trust Manager and the Servicer, shall have furnished to the
Representative their written opinion, dated the Closing Date, in form
and substance satisfactory to the Representative, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters, a copy of which
opinion is attached hereto as Exhibit B.
(f) The Representative shall have received two letters, one dated the
date hereof and one dated the Closing Date, of KPMG confirming that
they are
14
independent public accountants within the standards established by the
American Institute of Certified Public Accountants and stating to the
effect that they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Registration Statement (in each case to
the extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the
Xx.Xxxxxx Parties and their subsidiaries subject to the internal
controls of such parties' accounting system or are derived directly
from such records by analysis or computation or from the collateral
tape containing the description of the Housing Loans) with the results
obtained from inquiries, a reading of such general accounting records
and collateral tape and other procedures specified in such letter and
have found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as otherwise
specified in such letter.
(g) Xxxxx Xxxxx & Xxxxx, United States counsel for the Xx.Xxxxxx
Parties and the Issuer Trustee, shall have furnished to the
Representative their written opinion, dated the Closing Date, in form
and substance satisfactory to the Representative, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters, to the effect that:
(1) The Note Trust Deed has been duly qualified under the Trust
Indenture Act;
(2) To such counsel's knowledge, there are no material contracts,
indentures, or other documents of a character required to be
described or referred to under either the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration
Statement other than those described or referred to therein or
filed or incorporated by reference as exhibits thereto;
(3) The Trust is not and, after giving effect to the offering and
sale of the Notes and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company"
as defined in the Investment Company Act of 1940;
(4) No consent, approval, authorization or order of, or filing
with, any governmental agency located in the United States or
body or any court located in the United States is required for
the consummation of the transactions contemplated by this
Agreement in connection with the issuance or sale of the Notes by
the Issuer Trustee, except such as have been obtained and made
under the Securities Act and the Trust Indenture Act and such as
may be required under state securities laws;
15
(5) the Registration Statement was filed and was declared
effective under the Securities Act as of the date and time
specified in such opinion, the Prospectus either was filed with
the Commission pursuant to subparagraph (4) of Rule 424(b) on the
date specified therein, and, to the best of the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending
or contemplated under the Securities Act, and each Registration
Statement and the Prospectus, and each amendment or supplement
thereto, as of their respective effective or issue dates,
complied as to form in all material respects with the
requirements of the Securities Act, the Trust Indenture Act and
the Rules and Regulations; such counsel have no reason to believe
that any part of the Registration Statement or any amendment
thereto, as of its effective date or as of such Closing Date,
contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that
the Prospectus or any amendment or supplement thereto, as of its
issue date or as of such Closing Date, contained any untrue
statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; the descriptions in the Registration Statement and
Prospectus of statutes, legal and governmental proceedings are
accurate and fairly present the information required to be shown:
it being understood that such counsel need express no opinion as
to the financial statements or other financial data contained in
the Registration Statement or the Prospectus;
(6) The statements in the Prospectus under the Captions
"Description of the Class A-1 and Class A-2 Notes" and
"Description of the Transaction Documents", insofar as they
purport to summarize certain terms of the Notes and the
applicable Basic Documents, constitute a fair summary of the
provisions purported to be summarized; and
(7) This Agreement represents a legal valid and binding
obligation of each of Xx.Xxxxxx, the Trust Manager and the Issuer
Trustee.
(h) Xxxxx Xxxxx & Xxxxx, United States federal income tax counsel for the
Xx.Xxxxxx Parties and the Issuer Trustee, shall have furnished to the
Representative their written opinion, dated the Closing Date, in form and
substance satisfactory to the Representative, a copy of which opinion is
attached hereto as Exhibit C.
(i) Mallesons Xxxxxxx Xxxxxx, counsel for the Issuer Trustee, shall have
furnished to the Representative their written opinion, dated the Closing
Date, in form and substance satisfactory to the Representative, and such
counsel shall have received such papers and information as they may
reasonably request to enable
16
them to pass upon such matters, a copy of which opinion is attached hereto
as Exhibit D.
(j) White & Case LLP, counsel for the Note Trustee, shall have furnished to
the Representative their written opinion, dated the Closing Date, in form
and substance satisfactory to the Representative, and such counsel shall
have received such papers and information as they may reasonably request to
enable them to pass upon such matters, a copy of which is attached hereto
as Exhibit E.
(k) Counsel to the Fixed-Floating Rate Swap Provider, the Standby
Fixed-Floating Rate Swap Provider, the Basis Swap Provider, the Standby
Basis Swap Provider and the Currency Swap Provider shall have furnished to
the Representative and the Xx.Xxxxxx Parties their written opinion in form
and substance satisfactory to the Representative, copies of which opinions
will be attached hereto as Exhibit F.
(l) The Representative shall have received a letter or letters from each
counsel delivering any written opinion to any Rating Agency in connection
with the transaction described herein which is not otherwise described in
this Agreement allowing the Representative to rely on such opinion as if it
were addressed to the Representative.
(m) At the Closing Date, each Class of Class A Notes shall have been rated
"AAA" by Standard & Poor's Ratings Group, A Division of The XxXxxx-Xxxx
Companies, Inc. ("Standard and Poors") and Fitch Inc. ("Fitch") and "Aaa"
by Xxxxx'x Investors Service, Inc. ("Xxxxx'x" and together with Standard
and Poor's and Fitch, the "Rating Agencies") as evidenced by letters from
the Rating Agencies.
(n) The execution and delivery by all parties thereto of the Basic
Documents on or prior to the Closing Date.
(o) On or prior to the Closing Date the Xx.Xxxxxx Parties and the Issuer
Trustee shall have furnished to the Representative such further
certificates and documents as the Representative shall reasonably request.
7. Indemnification and Contribution.
(a) Each of St. Xxxxxx and the Trust Manager, jointly and severally, agrees to
indemnify and hold harmless each Underwriter and the Issuer Trustee, its
partners, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act, against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter or the Issuer Trustee may become subject, under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any Registration
17
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter or the Issuer Trustee in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that neither Xx.Xxxxxx nor the Trust Manager will
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to Xx.Xxxxxx
or the Trust Manager by any Underwriter through the Representative specifically
for use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in
subsection (b) below; and provided, further, that with respect to any untrue
statement or alleged untrue statement in or omission or alleged omission from
any preliminary prospectus the indemnity agreement contained in this paragraph
(a) shall not inure to the benefit of any Underwriter from whom the person
asserting any such losses, claims, damages or liabilities purchased the Notes
concerned, to the extent that a prospectus relating to such Notes was required
to be delivered by such Underwriter under the Securities Act in connection with
such purchase and any such loss, claim, damage or liability of such Underwriter
results from the fact that there was not sent or given to such person, at or
prior to the written confirmation of the sale of such Notes to such person, a
copy of the Prospectus if the Trust Manager had previously furnished copies
thereof to such Underwriter.
(b) Each Underwriter will severally and not jointly indemnify and hold harmless
Xx.Xxxxxx, the Issuer Trustee and the Trust Manager, its partners, its directors
and officers and each person, if any, who controls such company within the
meaning of Section 15 of the Securities Act, against any losses, claims, damages
or liabilities to which such company may become subject, under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Trust Manager by such
Underwriter through the Representative specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by Xx.Xxxxxx, the
Issuer Trustee or the Trust Manager in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by any Underwriter consists of the following information in the
Prospectus furnished on behalf of each Underwriter: (i) the concession and
reallowance figures
18
appearing in the third paragraph under the caption "Plan of Distribution" and
(ii) the information contained in the fifth and seventh paragraphs under the
caption "Plan of Distribution".
(c) Promptly after receipt by an indemnified party under this Section (c) of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement (i) includes an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or on behalf of an
indemnified party.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Xx.Xxxxxx
Parties and the Issuer Trustee on the one hand and the Underwriters on the other
from the offering of the Notes or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Xx.Xxxxxx Parties and the Issuer Trustee on the
one hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities as well
as any other relevant equitable considerations. The relative benefits received
by the Xx.Xxxxxx Parties and the Issuer Trustee on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Xx.Xxxxxx Parties and the Issuer Trustee bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault shall
be
19
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Xx.Xxxxxx Parties and the
Issuer Trustee or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d). In
addition, nothing in this Section 7 shall require St. Xxxxxx to indemnify and
hold harmless CSFBC from any losses, claims, damages or liabilities arising out
of or based on information contained in or omitted from the information set
forth on pages __ and __ of the Prospectus under the heading "Description of the
Class A-1 and Class A-2 Notes - The Interest Rate Swaps - Standby Swap Provider"
and "Description of the Class A-1 and Class A-2 Notes - The Currency Swap -
Currency Swap Provider - DLJ International Capital and Credit Suisse First
Boston (USA), Inc." Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Notes underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Xx.Xxxxxx Parties and the Issuer Trustee under this
Section shall be in addition to any liability which the Xx.Xxxxxx Parties and
the Issuer Trustee may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Securities Act; and the obligations of the Underwriters under
this Section shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Xx.Xxxxxx Parties or the Issuer Trustee, to
each officer of the Xx.Xxxxxx Parties or the Issuer Trustee who has signed the
Registration Statement and to each person, if any, who controls the Xx.Xxxxxx
Parties or the Issuer Trustee within the meaning of the Securities Act.
(f) To the extent that any payment of damages by Xx.Xxxxxx Bank pursuant to
subsection 7(a) above is determined to be a payment of damages pursuant to
"Funds Management and Securitisation Prudential Statement C2" such payment shall
be subject to the terms of Section 89 therein.
8. Default of Underwriters. If any Underwriter or Underwriters default in their
obligations to purchase Notes hereunder on the Closing Date and the aggregate
principal amount of Notes that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total principal amount
of Notes that the
20
Underwriters are obligated to purchase on such Closing Date, CSFBC may make
arrangements satisfactory to the Trust Manager for the purchase of such Notes by
other persons, including any of the Underwriters, but if no such arrangements
are made by such Closing Date, the non-defaulting Underwriters shall be
obligated severally, in proportion to their respective commitments hereunder, to
purchase the Notes that such defaulting Underwriters agreed but failed to
purchase on such Closing Date. If any Underwriter or Underwriters so default and
the aggregate principal amount of Notes with respect to which such default or
defaults occur exceeds 10% of the total principal amount of Notes that the
Underwriters are obligated to purchase on such Closing Date and arrangements
satisfactory to CSFBC and the Trust Manager for the purchase of such Notes by
other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter
or the Trust Manager, except as provided in Section 9. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Xx.Xxxxxx Parties, the Issuer Trustee or their respective officers and of the
several Underwriters set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation, or statement as to
the results thereof, made by or on behalf of any Underwriter, the Xx.Xxxxxx
Parties, the Issuer Trustee or any of their respective representatives, officers
or directors or any controlling person, and will survive delivery of and payment
for the Notes. If this Agreement is terminated pursuant to Section 8 or if for
any reason the purchase of the Notes by the Underwriters is not consummated, the
Xx.Xxxxxx Parties, jointly and severally, shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Xx.Xxxxxx Parties, the Issuer Trustee and the Underwriters
pursuant to Section 7 shall remain in effect, and if any Notes have been
purchased hereunder the representations and warranties in Section 2 and all
obligations under Section 5 shall also remain in effect. If the purchase of the
Notes by the Underwriters is not consummated for any reason other than solely
because of the termination of this Agreement pursuant to Section 8 or the
occurrence of any event specified in clause (iii), (iv) or (v) of Section 6(b),
the Xx.Xxxxxx Parties, jointly and severally, will reimburse the Underwriters
for all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Notes.
10. Selling Restrictions.
(a) No prospectus in relation to the Notes has been lodged with, or registered
by, the Australian Securities Commission or the Australian Stock Exchange
Limited. Each Underwriter (severally and not jointly) represents and agrees that
in connection with the initial distribution of the Notes:
21
(1) it has not (directly or indirectly) offered for subscription or
purchase or issued invitations to subscribe for or buy nor has it sold, the
Notes,
(2) will not (directly or indirectly) offer for subscription or purchase or
issue invitations to subscribe for or buy nor will it sell the Notes, and
(3) has not distributed and will not distribute any prospectus, or any
advertisement or other offering material
in the Commonwealth of Australia, its territories or possessions
("Australia") or to any person who is actually known by the Underwriter
(without an obligation on the Underwriter to make any inquiry) to be a
resident of Australia for the purposes of section 128F of the Income Tax
Assessment Act 1936 of Australia (the "Tax Act") or to any associates of
the Trust Manager or Xx.Xxxxxx identified on Annex A hereto or as otherwise
notified in writing by the Trust Manager or Xx.Xxxxxx to the Underwriters
from time to time.
(b) Each Underwriter (severally, not jointly) undertakes in connection with the
Notes subject to the "public offer test" under Section 128F of the Tax Act and
governed by this Agreement that the issue of such Notes resulted from:
(i) an offer by such Underwriter within 30 days of issue to any person as
a result of negotiations being initiated in electronic form
(specifying the particular electronic screen or service), the
Prospectus or in such other form as may be applicable, being a form
that is used by the financial markets for dealing in securities; or
(ii) its offer of such Notes for sale within 30 days of issue to at least
10 persons who are in the business of providing finance or investment
or dealing in securities in financial markets each of whom was not
known to be an associate of any of the others (within the meaning of
section 128F of the Tax Act);
and in either case it has announced on behalf of the Issuer Trustee in relation
to the offer that Euroclear Bank, S.A./N.V., as operator of the Euroclear System
("Euroclear"), Clearstream, Luxembourg or The Depository Trust Company will
confer rights in such Notes under Global Notes. Each Underwriter will provide
the Issuer Trustee (within five Business Days of the offer of such Notes by it)
a written statement which sets out details of the relevant offer.
Each Underwriter (severally, not jointly) agrees to co-operate with reasonable
requests from the Issuer Trustee for information for the purposes of assisting
the Issuer Trustee to demonstrate that the public offer test under section 128F
of the Tax Act has been
22
satisfied, provided that no Underwriter shall be obliged to disclose the
identity of the purchaser of any Note or any information from which such
identity might/would be capable of being ascertained, or any information the
disclosure of which would be contrary to or prohibited by any relevant law,
regulation or directive.
(c) Each Underwriter (severally and not jointly) acknowledges that no
representation is made by the Issuer Trustee or any Xx.Xxxxxx Party that any
action has been or will be taken in any jurisdiction outside the United States
by the Issuer Trustee or any Underwriter that would permit a public offering of
the Notes, or possession or distribution of the Prospectus or any other offering
material, in any country or jurisdiction where action for that purpose is
required. Each Underwriter (severally and not jointly) will comply with all
applicable securities laws and regulations in each jurisdiction in which it
purchases, offers, sells or delivers Notes or has in its possession or
distributes the Prospectus or any other offering material, in all cases at its
own expense.
(d) Each Underwriter (severally and not jointly) agrees that:
(i) it has only offered or sold and will only offer or sell any Notes in
or from the United Kingdom: (a) to persons (1) whose ordinary
activities involve them in acquiring, holding, managing or disposing
of investments (as principal or agent) for the purposes of their
businesses; or (ii) to persons who it is reasonable to expect will
acquire, hold, manage or dispose of investments (as principal or
agent) for the purposes of their business except in circumstances that
do not constitute an offer to the public under the Public Offers of
Securities Regulations 1995 (as amended)
(ii) it has complied and will comply with all applicable provisions of the
Financial Services Act with respect to anything done by it in relation
to the Notes in, from or otherwise involving the United Kingdom.
(iii) in connection with the Notes, it has only issued or passed on and
will only issue or pass on in the United Kingdom the Notes or any
document received by it in connection with the issue of the Notes, to
a person who is of a kind described in Article 11(e) of the Financial
Services Act 1986 (Investment Advertisements) (Exemptions) Order 1996
(as amended) or is a person to whom the document may otherwise
lawfully be issued or passed on.
11. Certain Matters Relating to the Issuer Trustee. The Issuer Trustee enters
into this Agreement only in its capacity as trustee of the Trust and in no other
capacity. A liability arising under or in connection with this Agreement or the
Trust can be enforced against the Issuer Trustee only to the extent to which it
can be satisfied out of assets and property of the Trust which are available to
satisfy the right of the Issuer Trustee to be exonerated or indemnified for such
liability. This limitation of the Issuer Trustee's liability applies
23
despite any other provisions of this Agreement and extends to all liabilities
and obligations of the Issuer Trustee in any way connected with any
representation, warranty, conduct, omission, agreement or Transaction related to
this Agreement or the Trust.
The parties other than the Issuer Trustee may not sue the Issuer
Trustee in any capacity other than as trustee of the Trust or seek the
appointment of a receiver (except under the Security Trust Deed) or a
liquidator, an administrator or any other similar person to the Issuer Trustee
or prove in any liquidation, administration or arrangements of or affecting the
Issuer Trustee.
The provisions of this Section 11 shall not apply to any obligation or
liability of the Issuer Trustee to the extent that it is not satisfied because
under a Basic Document or by operation of law there is a reduction in the extent
of the Issuer Trustee's indemnification or exoneration out of the assets of the
Trust as a result of the Issuer Trustee's fraud, negligence or Default (as
defined in the Master Trust Deed).
It is acknowledged that the Trust Manager, the Servicer, the Custodian,
the Currency Swap Providers, the Redraw Facility Provider, the Swap Providers,
the Standby Swap Providers, the Note Trustee, the Principal Paying Agent, the
other Paying Agents, the Calculation Agent and the Agent Bank (each, a "Relevant
Party") are responsible under the Transaction Documents (as defined in the
Master Trust Deed) for performing a variety of obligations relating to the
Trust. No act or omission of the Issuer Trustee (including any related failure
to satisfy its obligations under the Transaction Documents) will be considered
fraud, negligence or Default (as defined in the Master Trust Agreement) of the
Issuer Trustee for the purpose of this Agreement to the extent to which the act
or omission was caused or contributed to by any failure by any Relevant Party or
any other person who has been delegated or appointed by the Issuer Trustee in
accordance with the Transaction Documents (as defined in the Master Trust Deed)
to fulfil its obligations relating to the Trust or by any other act or omission
of a Relevant Party or by any other such person.
12. Consent to Jurisdiction; Appointment of Agent to Accept Service of Process.
Each of the Xx.Xxxxxx Parties and the Issuer Trustee hereby submits to
the non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby. Each of the
Xx.Xxxxxx Parties and the Issuer Trustee irrevocably appoints CT Corporation,
000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent
in the Borough of Manhattan in The City of New York upon which process may be
served in any such suit or proceeding, and agrees that service of process upon
such agent, and written notice of said service to it by the person serving the
same to the address provided in Section 16, shall be deemed in every respect
effective service of process upon it in any such suit or proceeding. Each of the
Xx.Xxxxxx Parties and the Issuer Trustee further agrees to take any and all
action as may be necessary to maintain such designation and appointment of such
agent in full force and effect for so long as the Notes remain outstanding.
24
The obligation of any of the Xx.Xxxxxx Parties or the Issuer Trustee in
respect of any sum due to any Underwriter shall, notwithstanding any judgment in
a currency other than United States dollars, not be discharged until the first
business day, following receipt by such Underwriter of any sum adjudged to be so
due in such other currency, on which (and only to the extent that) such
Underwriter may in accordance with normal banking procedures purchase United
States dollars with such other currency; if the United States dollars so
purchased are less than the sum originally due to such Underwriter hereunder,
each of the Xx.Xxxxxx Parties and the Issuer Trustee agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Underwriter
against such loss.
13. Foreign Taxes. All payments to be made by the Issuer Trustee and any
Xx.Xxxxxx Party hereunder shall be made without withholding or deduction for or
on account of any present or future taxes, duties or governmental charges
whatsoever unless the Issuer Trustee or such Xx.Xxxxxx Party, as applicable, is
compelled by law to deduct or withhold such taxes, duties or charges. In that
event, the Issuer Trustee or such Xx.Xxxxxx Party, as applicable, shall pay such
additional amounts as may be necessary in order that the net amounts received
after such withholding or deduction shall equal the amounts that would have been
received if no withholding or deduction had been made.
14. Waiver of Immunities. To the extent that any of the Issuer Trustee and
Xx.Xxxxxx Parties or any of their properties, assets or revenues may have or may
hereafter become entitled to, or have attributed to it, any right of immunity,
on the grounds of sovereignty or otherwise, from any legal action, suit or
proceeding, from the giving of any relief in any respect thereof, from setoff or
counterclaim, from the jurisdiction of any court, from service of process, from
attachment upon or prior to judgment, from attachment in aid of execution of
judgment, or from execution of judgment, or other legal process or proceeding
for the giving of any relief or for the enforcement of any judgment, in any
jurisdiction in which proceedings may at any time be commenced, with respect to
its obligations, liabilities or any other matter under or arising out of or in
connection this Agreement, the Issuer Trustee and the Xx.Xxxxxx Parties, as
applicable, hereby irrevocably and unconditionally waives, and agrees not to
plead or claim, any such immunity and consents to such relief and enforcement.
15. Judgment Currency. If any judgment or order in any legal proceeding against
any of the Issuer Trustee and the St. Xxxxxx Parties is given or made for any
amount due hereunder and such judgment or order is expressed and paid in a
currency (the "Judgment Currency") other than United States dollars and there is
any variation as between (i) the rate of exchange (the "Judgment Rate") at which
the United States dollar amount is converted into Judgment Currency for the
purpose of such judgment or order, and (ii) the rate of exchange (the "Market
Rate") at which the person to whom such amounts is paid (the "Payee") is able to
purchase United States dollars with the amount of the Judgment Currency actually
received by the holder, then the difference, expressed in United States dollars,
between such amount calculated at the Judgment Rate and such amount calculated
at the Market Rate shall be indemnified (a) if negative by the Issuer Trustee
and the St. Xxxxxx Parties, as applicable, to the Payee and (b) if positive by
the Payee to the Issuer Trustee and the St. Xxxxxx Parties, as applicable. The
foregoing indemnity
25
shall constitute a separate and independent obligation of the Issuer Trustee,
the Trust Manager and St. Xxxxxx or the Payee, as the case may be, and shall
continue in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "rate or exchange" shall include any premiums and costs of
exchange payable in connection with the purchase of, or conversion into, the
relevant currency.
16. Notices. All communications hereunder will be in writing and, if sent to the
Underwriters, will be mailed, delivered or telegraphed and confirmed to the
Representative at Xxxxxx Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 10010-3629, Attention:
Investment Banking Department--Transactions Advisory Group; if sent to the Trust
Manager will be mailed, delivered or telegraphed and confirmed to the Trust
Manager at c/o Company Secretary, level 4, 0-00 Xxxxxxxxxx Xxxxxx, Xxxxxxx XXX
0000 (Facsimile No. 612 9236 1899), Attention: Manager Securitisation; if sent
to the Issuer Trustee, mailed, delivered or telegraphed and confirmed to the
Issuer Trustee at c/o 00 Xxxxxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxxx Xxxxxxxx 0000
(Facsimile No. _________), Attention: ______________; and if sent to Xx.Xxxxxx,
mailed, delivered or telegraphed and confirmed to Xx.Xxxxxx at Level 0, 0-00
Xxxxxxxxxx Xxxxxx, Xxxxxxx XXX 0000 (Facsimile No. 612 9236 1899), Attention:
Manager Securitisation: provided, however, that any notice to an Underwriter
pursuant to Section 7 will be mailed, delivered or telegraphed and confirmed to
such Underwriter.
17. Successors. This Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder.
18. Representation of Underwriters. The Representative will act for the several
Underwriters in connection with this financing, and any action under this
Agreement taken by the Representative will be binding upon all the Underwriters.
19. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.
20. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
26
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return the enclosed counterparts
hereof, whereupon it will become a binding agreement between the parties listed
below in accordance with its terms.
Very truly yours,
CRUSADE MANAGEMENT LIMITED
By:
---------------------------
Name:
Title:
PERPETUAL TRUSTEES
CONSOLIDATED LIMITED
By:
---------------------------
Name:
Title:
ST. XXXXXX BANK LIMITED
By:
---------------------------
Name:
Title:
27
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the day
first above written
Credit Suisse First Boston Corporation
CREDIT SUISSE FIRST BOSTON CORPORATION
By:
-----------------------------------
Name:
Title:
Acting on behalf
of itself as the Representative of
the several Underwriters
28
SCHEDULE A
----------
Underwriter PRINCIPAL AMOUNT OF CLASS A-1
----------- NOTES TO BE PURCHASED
-----------------------------
Credit Suisse First Boston Corporation $__________,___
Deutsche Bank Securities Inc. _______,___
X. X. Xxxxxx, a division of Chase Securities Inc. _______,___
Total................................. $__________,___
Underwriter PRINCIPAL AMOUNT OF CLASS A-2
----------- NOTES TO BE PURCHASED
-----------------------------
Credit Suisse First Boston Corporation $__________,___
Deutsche Bank Securities Inc. __________,___
X. X. Xxxxxx, a division of Chase Securities Inc. _______,___
Total................................. $__________,___
29
CRUSADE GLOBAL TRUST NO 1 OF 2001
Certificate pursuant to section 6(c) of the Underwriting Agreement
Date: February 28, 2001
Credit Suisse First Boston Corporation
As Representative of the Underwriters
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
I hereby certify that, to the best of my knowledge after reasonable
investigation:
(i) the representations and warranties of Perpetual Trustees Consolidated
Limited, in its capacity as trustee of the Crusade Global Trust No 1 of
2001 (the "Issuer Trustee"), in the Underwriting Agreement dated
February __, 2001 among Credit Suisse First Boston Corporation, as
representative ("Representative") of the Underwriters listed in
Schedule 1 to that agreement (the "Underwriters"), Crusade Management
Limited, the Issuer Trustee and St. Xxxxxx Bank Limited (the
"Underwriting Agreement") are true and correct; and
(ii) the Issuer Trustee has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied under the
Underwriting Agreement.
By: ________________________________
Name:
Title:
