Draft (1) 31 May 2002
DATED [ O] JUNE 2002
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INTERSTAR SECURITISATION MANAGEMENT PTY LIMITED (1)
PERPETUAL TRUSTEES VICTORIA LIMITED (2)
INTERSTAR SECURITIES (AUSTRALIA) PTY LIMITED (3)
AND
BARCLAYS CAPITAL, INC. (4)
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UNDERWRITING AGREEMENT
relating to
PERPETUAL TRUSTEES VICTORIA LIMITED
(IN ITS CAPACITY AS TRUSTEE OF THE INTERSTAR MILLENNIUM SERIES 2002-1G TRUST)
US$1,000,000,000
CLASS A2 MORTGAGE BACKED FLOATING RATE NOTES DUE 2034
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[ORRICK Logo]
4 Broadgate
London, EC2M 2DA
TABLE OF CONTENTS
PAGE
1. DEFINITIONS.............................................................................................2
2. ISSUE OF THE NOTES......................................................................................3
3. STABILISATION...........................................................................................4
4. PURCHASE AND SALE OF CLASS A2 NOTES.....................................................................4
5. LISTING.................................................................................................5
6. REPRESENTATIONS AND WARRANTIES..........................................................................5
7. UNDERTAKINGS AND INDEMNITIES...........................................................................12
8. CONDITIONS PRECEDENT...................................................................................20
9. CLOSING................................................................................................24
10. COMMISSIONS AND FEES...................................................................................25
11. EXPENSES...............................................................................................25
12. RESTRICTED REMEDIES; TRUSTEE PROVISIONS................................................................27
13. TERMINATION............................................................................................30
14. CONSENT TO JURISDICTION; APPOINTMENT OF AGENT TO ACCEPT SERVICE OF PROCESS.............................30
15. FOREIGN TAXES..........................................................................................31
16. JUDGMENT CURRENCY......................................................................................31
17. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.............................................................32
18. TIME...................................................................................................32
19. COMMUNICATIONS.........................................................................................32
20. ASSIGNMENT.............................................................................................33
21. COUNTERPARTS...........................................................................................33
22. GOVERNING LAW AND JURISDICTION.........................................................................34
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THIS AGREEMENT is made on [o] June 2002
BETWEEN:
(1) PERPETUAL TRUSTEES VICTORIA LIMITED, a limited liability company
operating under the Corporations Act 2001 of Australia (ABN 47 004 027
258), with its registered offices at Level 4, 333 Collins Street,
Melbourne, Victoria, Australia (in its capacity as trustee of the
Interstar Millennium Series 2002-1G Trust (the "ISSUER");
(2) INTERSTAR SECURITISATION MANAGEMENT PTY LIMITED, a limited liability
company operating under the Corporations Act 2001 of Australia (ABN
[*]), with its registered offices at Level 28, 367 Collins Street,
Melbourne, Australia (in its capacity as trust manager of the Interstar
Millennium Series 2002-1G Trust, the "TRUST MANAGER");
(3) INTERSTAR SECURITIES (AUSTRALIA) PTY LIMITED, a limited liability
company operating under the Corporations Act 2001 of Australia (ABN 72
087 271 109), with its registered offices at Level 28, 367 Collins
Street, Melbourne, Australia (in its capacity as servicer of the
Interstar Millennium Series 2002-1G Trust, the "SERVICER");
(4) BARCLAYS CAPITAL, INC., a company incorporated under the laws of
[Delaware], with its head office located at 222 Broadway, New York, New
York, 10038 as representative (in such capacity, the "REPRESENTATIVE")
of the underwriters set forth on Schedule A hereto (the
"UNDERWRITERS").
WHEREAS:
(A) The Issuer, the Trust Manager, the Servicer and the Underwriters wish
to record the arrangements agreed between them in relation to the issue
and subscription of US$1,000,000,000 in aggregate principal amount
outstanding of Class A2 Mortgage Backed Floating Rate Notes due 2034
(the "CLASS A2 NOTES"). The Class B Notes (together with the Class A2
Notes, the "NOTES") also referred to, and defined in, the Prospectus
(defined below) are not the subject of this Underwriting Agreement.
(B) The Class A2 Notes will be in book-entry form in minimum denominations
of US$100,000 each. The Trust Manager has prepared and filed with the
United States Securities Exchange and Commission ("COMMISSION") in
accordance with the provisions of the United States 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.
(C) The Class A2 Notes will be constituted by, issued subject to, and
have the benefit of, a note trust
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deed (the "NOTE TRUST DEED") dated on or about [o] July 2002 between
the Issuer, the Trust Manager, The Bank of New York (the "NOTE
TRUSTEE") and The Bank of New York (Luxembourg) S.A. (the "LUXEMBOURG
PAYING AGENT"), and issued pursuant to the Master Trust Deed (the
"MASTER TRUST DEED") dated 2 December 1999 between Perpetual Trustees
Victoria Limited and Interstar Securities (Australia) Pty Limited, as
it applies to the Issuer by reason of the Notice of Creation of Trust
under which the Issuer becomes trustee of the Millennium Series 2002-1G
Trust on the terms of the Master Trust Deed (the "NOTICE OF CREATION OF
TRUST") to be given by the Trust Manager, the Series Notice (the
"SERIES NOTICE") to be entered into by, inter alios, the Issuer, the
Trust Manager, the Servicer, the Approved Sellers, the Note Trustee,
the Luxembourg Paying Agent and Perpetual Trustee Company Limited, as
security trustee (in such capacity, the "SECURITY TRUSTEE") and the
Agency Agreement (the "AGENCY AGREEMENT", and, together with the Master
Trust Deed, the Notice of Creation of Trust, the Note Trust Deed and
the Series Notice, the "NOTE ISSUANCE DOCUMENTS") to be entered into by
the Issuer, the Trust Manager, the Servicer, the Note Trustee
(including in its capacities as principal paying agent (in such
capacity, the "PRINCIPAL PAYING AGENT") and calculation agent (in such
capacity, the "CALCULATION AGENT")) and the Luxembourg Paying Agent.
IT IS AGREED as follows:
1. DEFINITIONS
1.1 MEANINGS. Subject to clause 1.2 and unless otherwise defined in this
Agreement, words and expressions which are defined in the Master Trust
Deed (as amended by the Series Notice) (including in each case by
reference to another agreement) and not defined herein have the same
meanings when used in this Underwriting Agreement (this "AGREEMENT"),
in each case unless the context otherwise requires.
1.2 CERTAIN TERMS. The following terms when used shall have the following
meanings:
"INVESTMENT COMPANY ACT" means the United States Investment Company Act
of 1940, as amended.
"ISSUER" means, except as otherwise specified, the Issuer in its
capacity as trustee of the Interstar Millennium Series 2002-1G Trust
(the "TRUST") and in no other capacity, provided that, except as
otherwise specified, a reference to the Issuer in clause 12 hereof is a
reference to the Issuer in its corporate and not trustee capacity;
"PROSPECTUS" shall have the meaning set out in clause 2.3;
"REGISTRATION STATEMENT" shall have the meaning set out in clause 2.3;
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"SELLING PRICE" shall have the meaning set out in clause 4.1;
"STOCK EXCHANGE" shall have the meaning set out in clause 5.1;
"SWAP PARTY" means any of the National Australia Bank Limited, as
fixed-floating rate swap provider, Zurich Capital Markets Australia
Limited, as currency swap provider and [*], as currency swap guarantor;
"TIME OF DELIVERY" shall have the meaning set out in clause 9.1;
"TRANSACTION DOCUMENTS" when used in this Agreement shall mean the
Master Trust Deed, the Series Notice, the Security Trust Deed, the Note
Trust Deed, the Agency Agreement, the Investment Management Agreement,
the Interest Rate Swap and the Currency Swap and in addition shall
include the Notes, including the relevant Conditions, the Notice of
Creation of Trust and this Agreement;
"SECURITIES ACT" means the United States Securities Act of 1933, as
amended.
"TRUST INDENTURE ACT" means the United States Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission
thereunder.
1.3 CLASS A2 NOTES. As used herein, the term "CLASS A2 NOTES" shall be
deemed, unless the context otherwise requires, to include Class A2
notes issued only in book-entry format deposited with the Note Trustee
as custodian for The Depository Trust Company ("DTC") and registered in
the name of Cede & Co., as nominee for DTC.
2. ISSUE OF THE NOTES
2.1 AGREEMENT TO ISSUE. The Issuer as trustee of the Trust agrees, at the
direction of the Trust Manager which the Trust Manager agrees to give,
to issue the principal amount of Class A2 Notes set out opposite the
name of each Underwriter in Schedule A hereto to each respective
Underwriter.
2.2 THE CLASS A2 NOTES. The Issuer will, not later than the Time of
Delivery, enter into, and provide the Representative with a copy of,
each of the Transaction Documents. The Class A2 Notes will be issued in
accordance with the terms of the Note Issuance Documents and will each
be in the respective forms set out in the first schedule to the Note
Trust Deed.
2.3 FORM S-11 REGISTRATION STATEMENT. The Trust Manager has filed a
registration statement on Form S-11 (No. 333 - [o]), including a form
of preliminary prospectus, for registration of the Class A2 Notes under
the Securities Act and has filed such amendments thereto and will file
such
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additional amendments thereto and such amended prospectuses as may
hereafter be required. Such registration statement in the form in which
it first became effective and as amended or supplemented thereafter (if
applicable) and the prospectus constituting a part thereof (including
all information deemed to be a part thereof pursuant to Rule 430A(b) of
the rules and regulations of the Commission under the Securities Act)
as amended or supplemented thereafter (if applicable) under the
Securities Act are herein referred to as the "REGISTRATION STATEMENT"
and the "PROSPECTUS", respectively, except that if any revised
prospectus shall be provided to the Issuer 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 o not such revised prospectus is required to be
filed pursuant to Rule 424(b)), the term "PROSPECTUS" shall refer to
such revised prospectus from and after the time it is first provided to
the Issuer for such use.
3. STABILISATION
The Underwriters may, to the extent permitted by applicable laws,
over-allot and effect transactions in any over-the-counter market or
otherwise in connection with the distribution of the Class A2 Notes
with a view to stabilising or maintaining the market price of the Class
A2 Notes at levels other than those which might otherwise prevail in
the open market but in doing so the Underwriters shall act as principal
and not as agent of the Issuer and any loss resulting from
over-allotment or stabilisation will be borne, and any profit arising
from them shall be retained, by the Underwriters. The Underwriters
acknowledge that the Issuer has not authorised the issue of Class A2
Notes in an aggregate principal amount exceeding US$1,000,000,000.
4. PURCHASE AND SALE OF CLASS A2 NOTES
4.1 PURCHASE AND SALE. On the basis of the representations, warranties and
agreements contained herein, but subject to the terms and conditions
herein set forth, the Issuer, at the direction of the Trust Manager,
agrees to sell the Class A2 Notes to the Underwriters, and the
Underwriters agree, severally and not jointly, to purchase from the
Issuer at a price equal to [o] per cent. of the principal amount of the
Class A2 Notes (the "SELLING PRICE") at the Time of Delivery the
respective principal amount of the Class A2 Notes set forth opposite
the names of the Underwriters in Schedule A.
4.2 OFFERING BY UNDERWRITERS. The Issuer, the Trust Manager and the
Servicer understand that the several Underwriters propose to offer the
Class A2 Notes for sale to the public as set forth in the Prospectus.
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5. LISTING
5.1 APPLICATION FOR LISTING. The Issuer confirms that it has authorised the
Representative to make or cause to be made an application on its behalf
for the Class A2 Notes to be listed on the Luxembourg Stock Exchange
(the "STOCK EXCHANGE"). Each of the Issuer, the Servicer and the Trust
Manager must seek to have the Class A2 Notes listed on the Stock
Exchange.
5.2 SUPPLY OF INFORMATION. The Trust Manager agrees to deliver to the Stock
Exchange copies of the Prospectus on behalf of the Issuer and to take
such other steps as may be required for the purpose of obtaining such
listing.
5.3 MAINTENANCE OF LISTING. Each of the Issuer, the Servicer and the Trust
Manager will use all reasonable endeavours to obtain and maintain such
listing on behalf of the Issuer for as long as any Class A2 Note is
outstanding. If, however, they are unable to do so, having used such
endeavours, or if the maintenance of such listing is unduly onerous,
each of the Issuer, the Servicer and the Trust Manager will instead use
all reasonable endeavours to obtain and maintain a listing for the
Class A2 Notes on such other stock exchange as it may, with the
approval of the Representative (such approval not to be unreasonably
withheld), decide.
6. REPRESENTATIONS AND WARRANTIES
6.1 WARRANTIES OF THE ISSUER. The Issuer represents and warrants to the
Underwriters that:
6.1.1 The information in the Prospectus under the heading "The Issuer
Trustee, the Trust Manager and the Servicer - The Issuer Trustee"
contains all information relating to the Issuer which is material in
the context of the Class A2 Notes and such information is true and
accurate in all material respects and is not misleading or deceptive in
any material respect, and any opinions expressed therein are honestly
held and are based on reasonable assumptions, and there are no other
facts or circumstances (other than those contained or referred to in
the Prospectus) the omission of which may make any of such information
or the expression of any such opinions misleading or deceptive and the
Issuer has made all reasonable enquiries to ascertain such facts or
circumstances and to verify the accuracy and reliability of any such
information and opinions;
6.1.2 Since the date as of which information is given in the Prospectus and
any amendment or supplement thereto, the Issuer and the Servicer have
not carried on any business with respect to the Trust other than as
described in the Registration Statement;
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6.1.3 The Issuer (in its corporate capacity):
(i) has been duly incorporated and is validly existing as a
limited liability company under the laws of Victoria,
Australia;
(ii) has full power and authority to act as trustee of the Trust as
described in the Prospectus; and
(iii) 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 it for
its winding-up, dissolution or reorganisation or for the
appointment of a receiver, administrator, administrative
receiver, liquidator or similar officer of it or of any or all
of its assets or revenues;
6.1.4 The Trust has been properly constituted and is validly existing as a
properly constituted trust under the laws of New South Wales,
Australia;
6.1.5 The issue of the Notes has been duly authorised by the Issuer and, when
issued and (in the case of the Class A2 Notes) authenticated and
delivered pursuant to the Note Issuance Documents and this Agreement
(in the case of the Class A2 Notes), will have been duly executed,
authenticated, issued and delivered (as appropriate) and will
constitute valid and legally binding obligations of the Issuer,
enforceable in accordance with their terms and entitled to the benefits
provided by the Note Issuance Documents, subject, as to enforcement, to
bankruptcy, insolvency, reorganisation and other laws of general
applicability relating to or affecting creditors' rights and to general
equitable principles;
6.1.6 This Agreement has been duly authorised, executed and delivered by the
Issuer, and assuming valid authorisation, execution and delivery by the
other parties hereto, will constitute valid and legally binding
obligations of the Issuer, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganisation
and other laws of general applicability relating to or affecting
creditors' rights and to general equitable principles;
6.1.7 Each of the other Transaction Documents to which the Issuer is a party
has been duly authorised, executed and delivered by the Issuer and,
assuming valid authorisation, execution and delivery by the other
parties thereto, will constitute valid and legally binding obligations
of the Issuer, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganisation and other laws
of general applicability relating to or affecting creditors' rights and
to general equitable principles;
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6.1.8 The issue and sale of the Notes and the compliance by the Issuer with
all of the provisions of the Notes, this Agreement and the other
Transaction Documents and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, any other agreement or instrument to which the Issuer is
a party or by which the Issuer is bound, nor will such action result in
any violation of the provisions of the constitution of the Issuer (in
its corporate capacity), or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Issuer or any of its assets;
6.1.9 No consent, approval, authorisation, order, licenses, registration
(other than the registration of the Security Trust Deed) or
qualification of or with any court or governmental agency or body is
required for the issue and sale of the Notes or the consummation of the
transactions by the Issuer contemplated by this Agreement or the other
Transaction Documents, other than
(i) the approval for listing of the Class A2 Notes with the Stock
Exchange; and
(ii) such consents, approvals, authorisations, orders, licenses,
registrations or qualifications as have been obtained under
the Securities Act and the Trust Indenture Act and as may be
required under state securities or "Blue Sky" laws in
connection with the purchase and distribution of the Class A2
Notes by the Underwriters;
6.1.10 The Security Trustee shall have a first priority and (subject to the
registration of the Security Trust Deed) perfected Security Interest,
free and clear of all other Security Interests, in the present and
future "Trust Assets" (as such term is defined in the Security Trust
Deed) and undertaking of the Trust for the benefit of, inter alios, the
holders of the Class A2 Notes;
6.1.11 There are no legal or governmental proceedings pending to which the
Issuer is a party or of which any property of the Trust is subject and,
to the best knowledge of the Issuer, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others;
6.1.12 At the Time of Delivery there shall not exist any material default (as
defined hereinafter) by the Issuer under any of the Transaction
Documents or any condition, event or act, which, with notice or lapse
of time or both, would constitute a material default by the Issuer
under any of the Transaction Documents;
6.1.13 Subject always to the observance by each Underwriter of the
representations and warranties referred to in clause 6.3 hereof, the
Issuer:
(i) has not (directly or indirectly) offered for subscription or
purchase or issued invitations to subscribe for or buy nor has
it sold the Class A2 Notes;
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(ii) will not (directly or indirectly) offer for subscription or
purchase or issue invitations to subscribe for or buy nor will
it sell the Class A2 Notes; and
(iii) has not distributed and will not distribute any offering
circular, or any advertisement or other offering material,
in each case, to [o], in its capacity as beneficiary of the Trust, or
any of its successors or permitted assigns in that capacity from time
to time (the "BENEFICIARY") or to an "associate" of the Beneficiary
within the meaning of section 128F of the Income Tax Assessment Act
1936 of the Commonwealth of Australia (the "TAX ACT") (other than in
the capacity of a dealer, note manager or underwriter in relation to
the placement of the Class A2 Notes);
6.1.14 Subject always to the observance by each Underwriter of the
representations and warranties referred to in clause 6.3 hereof, the
Issuer will not itself, and will not authorise any other person to,
directly or indirectly, offer, sell, resell, reoffer or deliver Class
A2 Notes or distribute the Prospectus or any circular, advertisement or
other offering material in any country or jurisdiction except under
circumstances that will result in compliance with all applicable laws
and regulations; and
6.1.15 All consents, licences, approvals and authorisations of any government
body in connection with the execution, delivery and performance of each
Transaction Document by the Issuer have been obtained and are validly
subsisting.
6.2 WARRANTIES OF THE SERVICER AND THE TRUST MANAGER. Each of the Servicer
and Trust Manager, jointly and severally, repeats its representations
and warranties in the Transaction Documents, as if references to
"Transaction Documents" in such representations and warranties included
this Agreement, for the benefit of the Underwriters, and represents and
warrants to, and agrees with, each of the Underwriters and the Issuer
that:
6.2.1 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 Servicer or
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, and the rules and
regulations of the Commission thereunder, 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
8
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 on the
Closing Date, as amended or supplemented, if applicable 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 specifically identified by the
Representative for use therein. Each of the Trust Manager, the Servicer
and each of the Undewriters acknowledges and agrees that the
information under the heading "Plan of Distribution" relating to
selling concessions and reallowance and relating to transactions by the
Underwriters in accordance with Regulation M under the Securities Act
of 1934 constitutes the only information furnished in writing by the
Underwriters or on behalf of the Underwriters for inclusion in the
Registration Statement or the Prospectus;
6.2.2 The Prospectus:
(i) has been approved by or on behalf of the Stock Exchange;
(ii) contains all information which is material in the context of
the issue of the Class A2 Notes and such information is true
and accurate in all respects and is not misleading or
deceptive in any material respect, and the opinions and
intentions expressed therein are honestly held and are based
on reasonable assumptions, there are no other facts or
circumstances (other than those contained or referred to in
the Prospectus) the omission of which may make any of such
information or the expression of any such opinions or
intentions misleading or deceptive and the Servicer and the
Trust Manager have made all reasonable enquiries to ascertain
such facts or circumstances and to verify the accuracy and
reliability of all such information, intentions and opinions;
and
(iii) complies with the requirements of the Stock Exchange;
6.2.3 There has been no material adverse change in the financial position of
the Servicer or the Trust Manager and the Servicer and the Trust
Manager are able to pay their respective debts as and when they become
due and payable;
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6.2.4 The Servicer and the Trust Manager have available to them the necessary
personnel (with relevant experience) and facilities (including computer
facilities and software) to permit the Servicer and the Trust Manager
to perform their obligations under the Transaction Documents;
6.2.5 There are no legal or governmental proceedings pending to which the
Servicer or the Trust Manager is a party or of which any property of
the Servicer or the Trust Manager is the subject which, if adversely
determined, could materially adversely affect the Servicer or the Trust
Manager's ability to fulfil its obligations under the Transaction
Documents and, to the best knowledge of the Servicer and the Trust
Manager, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
6.2.6 At the Time of Delivery there shall not exist any material default by
the Servicer or the Trust Manager under any of the Transaction
Documents, or any condition, event or act which, with notice or lapse
of time or both, would constitute a material default by the Servicer
and/or the Trust Manager under any of the Transaction Documents;
6.2.7 Neither the Servicer nor the Trust Manager shall take any action, or
omit to take any action, that could result in the Issuer, directly or
indirectly, offering, selling, reselling, re-offering or delivering
Class A2 Notes or distributing the Prospectus or any advertisement or
other offering material in any country or jurisdiction except under
circumstances that will result in compliance with all applicable laws
and regulations;
6.2.8 Since the date as of which information is given in the Prospectus,
neither the Servicer nor the Trust Manager have carried on any business
other than as described in the Prospectus;
6.2.9 Each of the Servicer and the Trust Manager:
(i) has been duly incorporated and is validly existing as a
limited liability public company under the laws of Victoria,
Australia;
(ii) has full power and authority to act as servicer and the trust
manager respectively as described in the Prospectus; and
(iii) 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 it for its
winding-up, dissolution or reorganisation or for the
appointment of a receiver, administrator, administrative
receiver, liquidator or similar officer of it or of any or all
of its assets or revenues;
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6.2.10 This Agreement has been duly authorised, executed and delivered by the
Servicer and the Trust Manager, and assuming valid authorisation,
execution and delivery by the other parties hereto, will constitute
valid legally binding obligations of the Servicer and the Trust
Manager, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganisation and other laws
of general applicability relating to or affecting creditors' rights and
to general equitable principles;
6.2.11 Each of the other Transaction Documents to which the Servicer or the
Trust Manager is a party has been duly authorised, executed and
delivered by the Servicer or the Trust Manager, as applicable, and,
assuming valid authorisation, execution and delivery by the other
parties thereto, will constitute valid and legally binding obligations
of the Issuer, enforceable in accordance with its terms subject, as to
enforcement, to bankruptcy, insolvency, reorganisation and other laws
of general applicability relating to or affecting creditors' rights and
to general equitable principles;
6.2.12 No consent, approval, authorisation, order, licenses, registration
(other than the registration of the Security Trust Deed) or
qualification of or with any court or governmental agency or body is
required for the issue and sale of the Class A2 Notes, the purchase of
the mortgage loans and related property (the "LOANS AND RELATED
RIGHTS") or the consummation of the transactions by the Servicer and
the Trust Manager contemplated by this Agreement or the other
Transaction Documents, other than (i) the approval for the listing of
the Class A2 Notes with the Stock Exchange and (ii) such consents,
approvals, authorisations, orders, licenses, registrations or
qualifications as have been obtained under the Securities Act and the
Trust Indenture Act and as may be required under state securities or
"Blue Sky" laws in connection with the purchase and distribution of the
Class A2 Notes by the Underwriters;
6.2.13 All consents, licences, approvals and authorisations of any government
body in connection with the execution, delivery and performance of each
Transaction Document to which it is a party have been obtained by the
Servicer and the Trust Manager and are validly subsisting;
6.2.14 At the Closing Date upon payment of the Purchase Price and all relevant
procedures having been followed, the Issuer will hold legal and
beneficial title to the Loans and Related Rights free from any Security
Interests therein save those created by the Security Trust Deed;
6.2.15 All information, other than the Prospectus, produced in writing or on
electronic media provided by the Servicer or the Trust Manager to the
Representative in relation to the transactions contemplated by the
Transaction Documents (together with the Prospectus, the "TRUST
MANAGER'S OFFERING INFORMATION") is, on [ ] 2002, true and accurate
in all material respects and is, on [ ] 2002, not misleading or
deceptive (including by reason of the omission of any fact or
circumstance from it) in any material respect;
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6.2.16 Neither the Servicer nor the Trust Manager shall knowingly or
negligently take or omit to take any action that could cause the Issuer
to be in violation of any of its representations or warranties
contained in this Agreement;
6.2.17 The Trust is not, and as a result of the issue of the Class A2 Notes or
the receipt or application of the proceeds thereof will not be,
required to register under the Investment Company Act; and
6.2.18 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
Transaction Documents to which it is to be a party or with the
authorization, execution, issue, sale or delivery of the Class A2 Notes
and the performance of the Trust Manager's or the Servicer's
obligations under the Transaction Documents to which it is to be a
party and the Class A2 Notes.
6.3 WARRANTIES OF THE UNDERWRITER. Each of the Underwriters represents and
warrants to, and agrees with, the Issuer, the Servicer and the Trust
Manager as set out in Schedule B hereto.
7. UNDERTAKINGS AND INDEMNITIES
7.1 INDEMNITY FROM ISSUER, SERVICER, TRUST MANAGER AND THE UNDERWRITERS.
Subject to clause 12 of this Agreement:
7.1.1 The Issuer will indemnify and hold harmless each Underwriter against
any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a
material fact contained under the heading "The Issuer Trustee, the
Trust Manager and the Servicer - The Issuer Trustee" in the Prospectus
or arising out of or based upon information under the heading "The
Issuer Trustee, the Trust Manager and the Servicer - The Issuer
Trustee" in the Prospectus being, or being alleged to be, misleading or
deceptive, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein, in the light of
the circumstances under which they are made, not misleading or
deceptive, or arise out of or are based upon any breach by the Issuer
of any of its representations, warranties or agreements contained in
this Agreement, and will on demand and from time to time reimburse the
Underwriters for any legal or other expenses reasonably incurred
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by the Underwriters in connection with investigating or defending any
such action or claim as such expenses are incurred and provided that no
Underwriter shall be entitled to any amount under this clause 7.1.1 to
the extent the relevant legal or other expenses were the result of any
fraud, negligence, or wilful default of such Underwriter.
7.1.2 Each of the Servicer and the Trust Manager will, jointly and severally,
indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, which such Underwriter may become
subject insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon:
(i) an untrue statement or alleged untrue statement of a material
fact contained in the Trust Manager's Offering Information; or
(ii) the Trust Manager's Offering Information being, or being
alleged to be, misleading or deceptive; or
(iii) any amendment or supplement to the Trust Manager's Offering
Information; or
(iv) arising out of or are based upon the omission or alleged
omission to state in the Trust Manager's Offering Information
a material fact necessary to make the statements therein, in
the light of the circumstances under which they are made, not
misleading or deceptive; or
(v) any breach by the Trust Manager or the Servicer of any of its
representations, warranties or agreements contained in this
Agreement,
and will on demand and from time to time reimburse the
Underwriters for any legal or other expenses reasonably
incurred by the Underwriters in connection with investigating
or defending any such action or claim as such expenses are
incurred; provided that no Underwriter shall be entitled to
any amount under this clause 7.1.2 to the extent the relevant
legal or other expenses were the result of any fraud,
negligence or default of such Underwriter.
7.1.3 Each Underwriter will, severally and not jointly, indemnify and hold
harmless each of the Issuer and the Trust Manager against any losses,
claims, damages or liabilities to which the Issuer or the Trust
Manager, as the case may be, may become subject insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any breach by such Underwriter of any of its
representations, warranties or agreements contain in this Agreement,
and will reimburse the Issuer and the Trust Manager (as the case may
be) for any legal or other expenses reasonably incurred by the Issuer
and the Trust Manager (as the case
13
may be) in connection with investigating or defending any such action
or claim as such expenses are incurred provided that neither the Issuer
nor the Trust Manager shall be entitled to any amount under this clause
7.1.3 to the extent the relevant legal or other expenses were the
result of any fraud, negligence or wilful default of the Issuer or the
Trust Manager (as the case may be).
7.1.4 Promptly after receipt by an indemnified party under clauses 7.1.1,
7.1.2 or 7.1.3 above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such paragraph, notify the
indemnifying party in writing of the commencement thereof; provided
that the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party under
such paragraph or otherwise; and provided further that no such
indemnified party shall enter into a compromise or other settlement of
any such action without the prior consent of the indemnifying party
(such consent not to be unreasonably withheld).
7.1.5 In case any such action shall be brought against any indemnified party,
the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying
party, to assume the defence thereof, with counsel satisfactory to such
indemnified party; provided that if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be
legal defences available to it or other indemnified parties which are
different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to select
separate counsel to assert such legal defences and to otherwise
participate in the defence of such action on behalf of such indemnified
party or parties.
7.1.6 Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defence of such action and
approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this clause 7.1 or
for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defence thereof unless:
(i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defences in accordance
with the proviso to the immediately preceding sentence (it
being understood, however, that the indemnifying party shall
not be liable for the expenses of more than one separate
counsel in each relevant jurisdiction, approved by the
Underwriters in the case of clauses 7.1.1, 7.1.2 or 7.1.3,
representing the indemnified parties under clauses 7.1.1,
7.1.2 or 7.1.3, as the case may be, who are parties to such
action);
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(ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party at the expense of the
indemnifying party to represent the indemnified party within a
reasonable time after notice of commencement of the action; or
(iii) the indemnifying party has authorised the employment of
counsel for the indemnified party at the expense of the
indemnifying party;
and except that, if sub-paragraph (i) or (iii) is applicable,
such liability shall be only in respect of the counsel
referred to in such sub-paragraph (i) or (iii).
7.1.7 The obligations of each of the Issuer, the Servicer and the Trust
Manager under this clause 7.1 shall be in addition to any liability
which the Issuer, the Servicer or the Trust Manager, as the case may
be, may otherwise have and shall extend, upon the same terms and
conditions, to each employee, officer and director of each Underwriter
and to each person, if any, who controls such Underwriter within the
meaning of section 15 of the Securities Act (such obligations being
held on trust by each Underwriter for each of its employees, officers
and directors); and the obligations of each Underwriter under this
clause 7.1 shall be in addition to any liability which such Underwriter
may otherwise have and shall extend, upon the same terms and
conditions, to each employee, officer and director of the Issuer, the
Servicer or the Trust Manager, as the case may be, within the meaning
of section 15 of the Securities Act.
7.1.8 if the indemnification provided for in this clause 7.1 is unavailable
or insufficient to hold harmless an indemnified party under clauses
7.1.1, 7.1.2 or 7.1.3, 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 clauses 7.1.1,
7.1.2 or 7.1.3
(i) in such proportion as is appropriate to reflect the relative
benefits received by the Servicer, the Trust Manager or the
Issuer Trustee on the one hand and the Underwriters on the
other from the offering of the Class A2 Notes; or
(ii) if the allocation provided in paragraph (i) above is not
permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred
to in paragraph (i) above but also the relative fault of the
Servicer, the Trust Manager or 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 fault shall be determined by
reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to
information supplied by the Servicer, the Trust Manager and
the Issuer Trustee or the
15
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
clause 7.1.8 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 clause 7.1.8.
Notwithstanding the provisions of this clause 7.1.8, no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Class A2 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 clause 7.1.8 to contribute are several in
proportion to their respective underwriting obligations and not joint.
7.2 ISSUER UNDERTAKINGS. The Issuer undertakes to each of the Underwriters
(subject to clause 12 below) that it will:
7.2.1 at any time prior to payment being made to the Issuer at the Time of
Delivery, unless the same is capable of remedy and is forthwith
remedied, forthwith notify the Underwriters of anything which has or
would have rendered or will or would render untrue or incorrect in any
material respect any of the representations and warranties in clause
6.1 as if they had been made or given at such time with reference to
the facts and circumstances then subsisting;
7.2.2 at the Time of Delivery do all things within its power and required by
it on such date under the terms of the Transaction Documents;
7.2.3 if at any time prior to the Time of Delivery any event within its
knowledge shall have occurred as a result of which the information
under the heading "The Issuer Trustee, the Trustee Manager and the
Servicer - The Issuer Trustee" in 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 are made
when the Prospectus is delivered, not misleading or, if for any other
reason it shall be necessary to amend or supplement the Prospectus, the
Issuer will notify the Underwriters and, upon request from the
Representative, the Issuer will prepare and furnish without charge to
the Underwriters as many copies as each Underwriter from time to time
reasonably requests of any amended prospectus or a supplement to the
Prospectus which will correct such statement or omission;
16
7.2.4 not effect or enter into any transaction (in the open market or
otherwise) or effect or enter into any other arrangements the object or
effect of which would be to stabilise or maintain the market price of
the Class A2 Notes at levels other than those which might otherwise
prevail in the open market;
7.2.5 the Issuer will pay:
(i) any stamp, issue, registration, documentary or other taxes of a
similar nature and duties, including interest and penalties,
payable on or in connection with the creation, issue and offering
of the Class A2 Notes or the execution or delivery of the
Transaction Documents; and
(ii) in addition to any amount payable by it under this Agreement, any
value added, turnover or similar tax payable in respect of that
amount (and references in this Agreement to such amount shall be
deemed to include any such taxes so payable in addition to it).
7.2.6 so long as any of the Class A Notes remains outstanding, the Issuer
will furnish to any Underwriter if it so requests in writing, copies of
each document filed by the Issuer with the Stock Exchange and the
Commission, and copies of financial statements and other periodic
reports that the Issuer may furnish generally to holders of its debt
securities; and
7.2.7 from the date hereof to (and including) the Time of Delivery, neither
the Issuer nor any of its affiliates shall, without the prior consent
of the Representative, make any public announcement which might
reasonably be expected to have an adverse effect on the marketability
of the Class A2 Notes.
7.3 SERVICER AND TRUST MANAGER UNDERTAKINGS. The Servicer and Trust
Manager, jointly and severally, undertake with each of the Underwriters
that the Trust Manager will (and the Servicer shall procure that the
Trust Manager will):
7.3.1 file with the Commission pursuant to and in accordance with Rule 430A
and Rule 424(b) copies of an amended Prospectus containing all of the
information omitted from the Prospectus in reliance upon Rule 430A at
the time the Registration Statement became effective. The Trust Manager
will advise the Representative promptly of any such filing pursuant to
Rule 424(b);
7.3.2 advise the Representative promptly of any proposal to amend or
supplement the Registration Statement as filed or the related
Prospectus and will not effect such amendment or supplementation
without the Representative's consent; and the Trust Manager will also
advise the Representative promptly of the institution by the Commission
of any stop order proceedings in
17
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;
7.3.3 at any time prior to payment being made to the Issuer at the Time of
Delivery, unless the same is capable of remedy and is forthwith
remedied, forthwith notify the Representative of anything which has or
would have rendered or will or would render untrue or incorrect in any
material respect any of the representations and warranties in clause
6.3 as if they had been made or given at such time with reference to
the facts and circumstances then subsisting;
7.3.4 at any time when a prospectus relating to the Class A2 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 the
Representative of such event and will promptly prepare and file with
the Commission, at its own expense, an amendment or supplement which
will correct such statement or omission or an amendment which will
effect such compliance. Neither the Representative's consent to, nor
any Underwriter's delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in this clause
7;
7.3.5 as soon as practicable, make generally available to the holders of the
Class A2 Notes an earnings statement or statements of the Trust
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 and Rule 158 of the Commission
promulgated thereunder;
7.3.6 assist the Representative in making arrangements with DTC, Euroclear
and Clearstream, Luxembourg concerning the issue of the Class A2 Notes
and related matters;
7.3.7 at the Time of Delivery do all things within its power and required by
it on such date under the terms of the Transaction Documents;
7.3.8 not effect or enter into any transaction (in the open market or
otherwise) or effect or enter into any other arrangements the object or
effect of which would be to stabilise or maintain the market price of
the Class A2 Notes at levels other than those which might otherwise
prevail in the open market;
7.3.9 pay, in addition to any amount payable by it under this Agreement, any
value added, turnover or similar tax payable in respect of that amount
(and references in this Agreement to such amount shall be deemed to
include any such taxes so payable in addition to it);
18
7.3.10 procure that the Security Interests created by or contained in the
Security Trust Deed are registered within all applicable time limits in
all appropriate registers;
7.3.11 furnish to the Representative on (or as soon as practicable after) the
date hereof three copies of the Prospectus signed by a duly authorised
officer of the Issuer and the Trust Manager and, without charge, such
additional number of copies of the Prospectus as the Representative may
reasonably request;
7.3.12 furnish to the Representative copies of the Registration Statement (one
of which will be signed and include all exhibits), each related
preliminary prospectus, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and in
such quantities as the Representative may reasonably request;
7.3.13 not cause the Trust to become an investment company under the
Investment Company Act;
7.3.14 endeavour to qualify the Class A2 Notes for sale under the securities
or "Blue Sky" laws of such jurisdictions as the Representative shall
reasonably request and the determination of eligibility for investment
of the Class A2 Notes under the laws of such jurisdictions as you may
designate and will continue such qualifications in effect so long as
required for the distribution of the Class A2 Notes;
7.3.15 so long as the Class A2 Notes are outstanding, 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 or the Note Trustee,
(ii) copies of each amendment to the Transaction Documents,
(iii) copies of all reports or other communications (financial or
other) furnished to holders of the Class A2 Notes, and copies
of any reports and financial statements furnished to the
Commission, any governmental or regulatory authority or any
national securities exchange, and
(iv) from time to time such other information concerning the Trust,
the Trust Manager or the Servicer as the Representative may
reasonably request;
7.3.16 to the extent, if any, that any of the ratings provided with respect to
the Class A2 Notes by Moody's Investors Service, Inc. ("MOODY'S") or
Standard & Poor's Ratings Group ("S&P") (Moody's and S&P, each a
"RATING AGENCY") and each are conditional upon the furnishing of
19
documents or the taking of any other actions by the Servicer or the
Trust Manager, furnish such documents and take any such other actions;
and
7.3.17 not offer, sell, contract to sell, pledge or otherwise dispose of,
directly or indirectly, or file with the Commission a registration
statement under the Securities Act relating to asset-backed securities,
or publicly disclose the intention to make any such offer, sale,
pledge, disposition or filing, without the prior written consent of the
Representative for a period beginning at the date of this Agreement and
ending at the later of the Time of Delivery or the lifting of trading
restrictions by the Representative.
7.4 RIGHTS IN FULL FORCE AND EFFECT. The rights and remedies conferred upon
each Underwriter (and the other indemnified persons) under this clause
7 shall continue in full force and effect notwithstanding the
completion of the arrangements set out herein for the issue and
subscription of, and payment for, the Class A2 Notes and regardless of
any investigation by any Underwriter.
8. CONDITIONS PRECEDENT
8.1 This Agreement and the obligations of each Underwriter under it are
conditional upon:-
8.1.1 EXECUTION OF TRANSACTION DOCUMENTS: the execution and delivery (at or
before the Time of Delivery) of the Transaction Documents by the
respective parties and due satisfaction of all conditions precedent to
the Transaction Documents other than the issue of the Class A2 Notes;
8.1.2 CLASS B NOTES: The Representative shall have received evidence
satisfactory to it that at the Time of Delivery the Class B Notes shall
have been issued;
8.1.3 PURCHASE: all the steps or conditions required by the Series Notice for
the purchase by the Issuer from the Approved Sellers of the Loans and
Related Rights to be acquired from the Approved Sellers pursuant
thereto having been or will be taken or satisfied, as the case may be;
8.1.4 REGISTRATION STATEMENT DECLARED EFFECTIVE: 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 the
Representative 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
20
rules and regulations under the Securities Act and in accordance with
clause 7.3.1 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.
8.1.5 LISTING: the Stock Exchange having agreed to list the Class A2 Notes,
subject only to the issue of the Global Notes or the Representative
being satisfied that such listing will be granted shortly after the
Time of Delivery;
8.1.6 OPINIONS: at or before the Time of Delivery, there having been
delivered to the Representative opinions, in form and substance
satisfactory to the Representative, dated the Time of Delivery of:
(i) Orrick, Herrington & Sutcliffe, legal advisers to the
Underwriters;
(ii) Mayer, Brown, Rowe & Maw, legal advisers to the Servicer and
the Trust Manager;
(iii) Allen Arthur Robinson, legal advisers to the Servicer and the
Trust Manager;
(iv) Mallesons Stephen Jaques, legal advisers to the Issuer;
(v) legal advisers to the Swap Party;
(vi) Tite & Lewis, legal advisers to the Note Trustee;
(vii) KPMG, tax advisers to the Trust Manager;
and such other documents, opinions and certificates as the
Representative may reasonably require;
8.1.7 The Representative shall have received a letter or letters from each
counsel delivering any written opinion to any Rating Agency in
connection with the transactions described in this Agreement allowing
the Representative to rely on such opinion as if it were addressed to
the Representative;
8.1.8 COMPLIANCE: at the Time of Delivery:
(i) the representations and warranties of the Issuer, the Servicer
and the Trust Manager in this Agreement being true, accurate
and correct at, and as if made at, the Time of Delivery;
(ii) each of the Issuer, the Servicer and the Trust Manager having
performed all of their respective obligations under this
Agreement to be performed on or before the Time of Delivery
and there having been delivered to the Representative a
certificate from each of
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the Issuer, the Servicer and the Trust Manager to such effect,
dated the Time of Delivery and signed by a duly authorised
officer; and
(iii) subsequent to the execution and delivery of this Agreement,
there shall not have occurred
(a) 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 Issuer, the Servicer, the Trust Manager
or any Swap Party and their respective subsidiaries,
in each case, taken as one enterprise, which, in the
judgment of the Representative, is material and
adverse and makes it impractical or inadvisable to
proceed with completion of the public offering or the
sale of and payment for the Class A2 Notes;
(b) any downgrading in the rating of any debt securities
of any of the Servicer, the Trust Manager, the Issuer
Trustee or any Swap Party by any "nationally
recognized statistical rating organization" (as
defined for purposes of Rule 436 (g) under the
Securities Act), or any public announcement that any
such organization has under surveillance or review
its rating of the Class A2 Notes or any debt
securities of any of the Servicer, the Trust Manager,
the Issuer Trustee or any Swap Party (other than an
announcement with positive implications of a possible
upgrading, and no implication of a possible
downgrading, of such rating);
(c) any material suspension or material limitation of
trading in securities generally on the New York Stock
Exchange, the Stock Exchange or any other exchange on
which the Class A2 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 Servicer, the Trust Manager, the Issuer Trustee
or any Swap Party on any exchange or in the
over-the-counter market;
(d) any banking moratorium declared by U.S. Federal, New
York, United Kingdom, Luxembourg or Australia
authorities; or
(e) any outbreak or escalation of major hostilities in
which the United States, the United Kingdom,
Luxembourg or Australia is involved, any declaration
of war by the United States Congress or any other
substantial national or international calamity or
emergency if, in the judgment of the Representative,
the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it
22
impractical or inadvisable to proceed with completion
of the public offering or the sale of and payment for
the Class A2 Notes.
8.1.9 RATING: at the Time of Delivery, the Class A2 Notes having been
assigned a rating of AAA by S&P and Aaa by Moody's and the Class B
Notes having been assigned a rating of AA- by S&P and no such rating
having been downgraded and no Notes having been placed on "credit
watch" and there having occurred no downgrade, nor any notice having
been given of:
(i) any intended or potential downgrading; or
(ii) any review or possible change which does not indicate the
direction of any such change, in the rating accorded to any
other debt securities of the Issuer by any Rating Agency;
8.1.10 MATERIAL ADVERSE CHANGE: at the Time of Delivery there shall not have
occurred any change nor any development or event reasonably likely to
involve a prospective change which would be, in the discretion of the
Representative, material and adverse and which would make it, in the
discretion of the Representative, impracticable to market the Class A2
Notes on the terms and in the manner contemplated in the Prospectus;
8.1.11 SOLVENCY: there having been delivered to the Representative a solvency
certificate of each of the Approved Sellers dated the Time of Delivery
and signed by a duly authorised officer;
8.1.12 COMMISSIONS AND EXPENSES: there having been delivered to the
Underwriters satisfactory evidence that payment of the Commissions
(defined in clause 10.1 below) and the expenses referred to in clause
11.2 will be made at the Time of Delivery;
8.1.13 The Representative shall have received a certificate, dated the Time of
Delivery, of the managing director, director or any chief general
manager of each of the Servicer and the Trust Manager and (as to
paragraphs (i) and (ii) below only) of an authorized officer of the
Issuer 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 the Time of Delivery;
(iii) in the case of the Trust Manager, no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
are contemplated by the Commission; and
23
(iv) subsequent to the date of the most recent financial statements
supplied by the Servicer 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; and
8.1.14 The Representative shall have received two letters; one dated the date
hereof and one dated the Time of Delivery, of KPMB confirming that they
are 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
Servicer and its subsidiaries and affiliates 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 Loans and Related Rights) 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.
8.2 WAIVER. The Representative may, at its discretion and upon such terms
as it thinks fit, waive compliance with the whole or any part of clause
8 (other than clauses 8.1.1 and 8.1.2).
9. CLOSING
9.1 The Issuer Trustee will deliver the Class A2 Notes to be purchased by
the Underwriters hereunder at the offices of Mayer, Brown, Rowe & Maw,
1675 Broadway, New York, New York 10019, USA, in book-entry form
deposited with the Note Trustee as custodian for DTC, and registered in
the name of Cede & Co., as nominee for DTC. Interests in any Class A2
Notes will be held only in book-entry form through DTC, except in the
limited circumstances described in the Prospectus. Delivery of the
Class A2 Notes will be by means of credit to the account of the
Underwriters with DTC, against payment to, or as directed by, the
Issuer by the Underwriters of the Selling Price in U.S. dollars in
immediately available funds, at or around [2.30] p.m., New York time,
or at such other time as may be notified by the Representative to the
parties hereto, on [ ] 2002, or at such other time and date as the
Representative and the Issuer may agree upon in writing (such time and
date being herein called the "TIME OF DELIVERY").
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10. COMMISSIONS AND FEES
10.1 In consideration of the agreement by each of the Underwriters to
purchase and pay for the Class A2 Notes, the Servicer agrees to pay or
procure the payment, at the Time of Delivery to the Underwriters:
10.1.1 of a combined management and underwriting commission in respect of the
Class A2 Notes of [*] per cent. of the principal amount of the Class A2
Notes; and
10.1.2 of a selling concession of an amount equal to [*] per cent. of the
principal amount of the Class A2 Notes.
The amounts referred to in clause 10.1.1 and 10.1.2 above are together
the "COMMISSIONS".
10.2 The Trust Manager shall, and the Servicer shall procure that the Trust
Manager shall, pay or procure the payment at the Time of Delivery to
each Underwriter of the expenses of such Underwriter (as separately
agreed and referred to in clause 11.2).
11. EXPENSES
11.1 GENERAL EXPENSES. The Issuer, the Servicer and the Trust Manager agree
with the Underwriters that the Underwriters will not be responsible for
payment of any of the following, which will be paid by the Trust
Manager:
11.1.1 all costs and expenses in connection with:
(i) the preparation, production and (where appropriate) printing
of the Notes, the information in the Prospectus, the
Transaction Documents, and all other documents relating to the
issue of the Notes and the Prospectus;
(ii) the initial delivery and distribution (including
transportation and packaging but not insurance (other than to
the place of distribution)) of the Notes;
(iii) the listing of the Class A2 Notes on the Stock Exchange; and
(iv) any filing fees and other expenses (including fees and
disbursements of Underwriters' counsel) incurred in connection
with qualification of the Class A2 Notes for sale and
determination of the eligibility of the Class A2 Notes for
investment under the laws of such jurisdiction as the
Representative designates, and the printing of memoranda
relating thereto,
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11.1.2 the fees and expenses of the Security Trustee, the Note Trustee, the
Paying Agents and any other party to the Transaction Documents in
relation to the preparation and execution of the Transaction Documents,
the issue and authentication of the Notes and the performance of their
duties under the Transaction Documents,
11.1.3 the fees, disbursements and expenses of the legal advisers of the
Underwriters and the legal advisers of any other party to the
Transaction Documents and the legal advisers and accountants of the
Issuer and all other expenses of the Issuer in connection with the
issue and obtaining and maintaining the listing of the Class A2 Notes,
11.1.4 the fees charged by S&P and Moody's for rating the Notes,
11.1.5 the initial fees and expenses of DTC, Euroclear and Clearstream in
relation to the Notes (excluding any such fees and expenses arising as
a result of any transfer of the Notes), and
11.1.6 all other out-of-pocket costs and expenses of the Issuer incidental to
the performance of the Issuer's obligations hereunder and the issuance
and sale of the Notes which are not otherwise specifically provided for
in this clause 11.1.
11.2 REPRESENTATIVE'S EXPENSES. [In addition, the Servicer will pay to
Barclays Capital, Inc. an amount, to be agreed separately in an
expenses side-letter dated the date hereof, in lieu of reimbursement of
their legal and other expenses in connection with the issue of the
Class A2 Notes.]
11.3 SERVICER AND TRUST MANAGER. The Servicer and the Trust Manager, jointly
and severally further covenant and agree with each Underwriter to
indemnify and hold harmless each Underwriter from any:
11.3.1 expenses described in clause 11.1 if incurred by the Underwriters;
11.3.2 U.S., U.K., Australian, Belgian or Luxembourg documentary, stamp,
reserve or similar U.S., U.K., Australian, Belgian or Luxembourg issue
tax or duty and any related interest or penalties on, and value added
tax (if any) and all court fees payable in respect of the execution of,
or otherwise in connection with, the Transaction Documents or the
issue, sale or delivery of, or otherwise in connection with, the Class
A2 Notes to the Underwriters or any expense incurred by any Underwriter
(including legal fees on a full indemnity basis) in connection with the
enforcement of the Trust Manager's or the Servicer's obligations under
this Agreement;
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11.3.3 expenses incurred by any Underwriter (including legal fees on a full
indemnity basis) in connection with the enforcement of any of the
Issuer's, the Servicer's or the Trust Manager's obligations (as the
case may be) under this Agreement; and
11.3.4 payments to the Underwriters under this clause 11 shall be in addition
to the Commissions payable to the Lead Managers under clause 10.
11.4 COSTS OF PURCHASE ETC. Without prejudice to the generality of clauses
11.3.1 to 11.3.4 (inclusive), the Issuer, the Servicer and the Trust
Manager agree with the Underwriters that the Servicer will be
responsible for payments of all and any fees, charges, costs and duties
and any stamp and other taxes or duties, including interest and
penalties, arising from or in connection with the purchase of the Loans
and Related Rights, the creation of the security for the Class A2 Notes
and for the other amounts to be secured as contemplated by the Security
Trust Deed, and the perfection of such security (including the making
of any necessary registration).
11.5 COMMISSIONS. The Servicer and Trust Manager, jointly and severally,
agree to pay or procure the payment of a sum equal to the amount of any
due but unpaid Commissions to the Representative on behalf of the
Underwriters in immediately available funds at the Time of Delivery.
11.6 PAYMENT. All payments in respect of the costs, fees, expenses referred
to in clause 11.1.1 [and 11.2 ]shall be satisfied by any of the Issuer,
the Servicer or the Trust Manager (as the case may be) making them to
the Representative, and the Issuer shall not be concerned with the
apportionment of such payments between the Underwriters or the payment
of them to any other persons.
12. RESTRICTED REMEDIES; TRUSTEE PROVISIONS
12.1 RESTRICTED REMEDIES. Subject to clause 12.3 and except as provided in
clause 12.2, the Underwriters shall not:
12.1.1 (JUDGMENT) obtain a judgment for the payment of money or damages by the
Issuer;
12.1.2 (STATUTORY DEMAND) issue any demand under section 459E(1) of the
Corporations Act 2001 of Australia (or any analogous provision under
any other law) against the Issuer;
12.1.3 (WINDING UP) apply for the winding up or dissolution of the Issuer;
12.1.4 (EXECUTION) levy or enforce any distress or other execution to, on, or
against any assets of the Issuer;
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12.1.5 (COURT APPOINTED RECEIVER) apply for the appointment by a court of a
receiver to any of the assets of the Issuer;
12.1.6 (SET-OFF OR COUNTERCLAIM) exercise or seek to exercise any set-off or
counterclaim against the Issuer; or
12.1.7 (ADMINISTRATOR) appoint, or agree to the appointment of, any
administrator to the Issuer,
or take proceedings for any of the above and the Underwriters waive
their rights to make those applications and take those proceedings.
12.2 UNRESTRICTED REMEDIES. Nothing in clause 12.1 limits the Underwriters
from:
12.2.1 obtaining an injunction or other order to restrain any breach of this
Agreement by any party; or
12.2.2 obtaining declaratory relief in relation to their rights under the
Security Trust Deed.
12.3 TRUSTEE PROVISIONS. Notwithstanding any other terms of this Agreement:
12.3.1 clause 32.16 of the Master Trust Deed (as amended by the Series Notice)
applies to the obligations and liabilities of the Issuer under this
Agreement.
12.3.2 The Issuer enters into the Transaction Documents and issues the Notes
only in its capacity as trustee of the Trust and in no other capacity.
A liability incurred by the Issuer acting in its capacity as trustee of
the Trust arising under or in connection with the Transaction Documents
or the Trust or in respect of the Notes is limited to and can be
enforced against the Issuer only to the extent to which it can be
satisfied out of the Assets of the Trust out of which the Issuer is
actually indemnified for the liability. This limitation of the Issuer's
liability applies despite any other provision of the Transaction
Documents and extends to all liabilities and obligations of the Issuer
in any way connected with any representation, warranty, conduct,
omission, agreement or transaction related to the Transaction Documents
or the Trust.
12.3.3 The parties other than the Issuer may not sue the Issuer in any
capacity other than as trustee of the Trust or seek the appointment of
a receiver (except in relation to the Assets of the Trust), liquidator,
administrator or similar person to the Issuer or prove in any
liquidation, administration or arrangements of or affecting the Issuer
(except in relation to the Assets of the Trust).
12.3.4 The provisions of clause 32.16 of the Master Trust Deed do not apply to
any obligation or liability of the Issuer to the extent that it is not
satisfied because under a Transaction Document or by operation of law
there is a reduction in the extent of the Issuer's indemnification out
of the Assets of the Trust as a result of the Issuer's fraud,
negligence, or wilful default.
28
12.3.5 It is acknowledged that the Relevant Parties are responsible under the
Transaction Documents for performing a variety of obligations relating
to the Trust. No act or omission of the Issuer (including any related
failure to satisfy its obligations or breach of representation or
warranty under the Transaction Documents) will be considered fraud,
negligence or wilful default of the Issuer for the purpose of paragraph
(d) above to the extent to which the act or omission was caused or
contributed to by any failure by the Relevant Parties (other than a
person whose acts or omissions the Issuer is liable for in accordance
with the Transaction Documents) to fulfil its obligations relating to
the Trust or by any other act or omission of the Relevant Parties
(other than a person whose acts or omissions the Issuer is liable for
in accordance with the Transaction Documents) regardless of whether or
not that act or omission is purported to be done on behalf of the
Issuer.
12.3.6 No attorney, agent, receiver or receiver and manager appointed in
accordance with a Transaction Document has authority to act on behalf
of the Issuer in a way which exposes the Issuer to any personal
liability and no act or omission of any such person will be considered
fraud, negligence or wilful default of the Issuer for the purpose of
paragraph (d) above provided (in the case of any person selected and
appointed by the Issuer) that the Issuer has exercised reasonable care
in the selection of such persons.
12.3.7 In this clause 12, "RELEVANT PARTIES" means each of the Trust Manager,
the Servicer, the Calculation Agent, each Paying Agent, the Note
Trustee and any Support Facility Provider.
12.3.8 In this clause 12, "WILFUL DEFAULT" means any wilful failure to comply
with, or wilful breach by the Issuer of, any of its obligations under
any Transaction Document, other than a failure or breach which:
(i) arises as a result of a breach of a Transaction Document by a
person other than:
(a) the Issuer; or
(b) any officer, employee, agent or delegate of the
Issuer; and
(ii) is in accordance with a lawful court order or required by law;
or
(iii) is, in relation to a Trust:
(a) in accordance with a proper instruction or direction
of the Voting Mortgagees (as defined in the Security
Trust Deed in relation to the Trust) given at a
meeting of Voting Mortgagees convened pursuant to the
Security Trust Deed in relation to the Trust; or
29
(b) in accordance with any proper instruction or
direction of the Noteholders of the Trust at a
meeting convened under the Master Trust Deed.
12.3.9 Nothing in this clause 12 limits the obligations expressly imposed on
the Issuer under the Transaction Documents.
13. TERMINATION
13.1 THE REPRESENTATIVE'S ABILITY TO TERMINATE. Notwithstanding anything
contained herein, the Representative may terminate this Agreement by
notice to the Issuer, given at any time prior to payment of the Selling
Price for the Class A2 Notes to the Issuer:
13.1.1 if there shall have come to the notice of the Representative any
material breach or any event rendering untrue or incorrect in any
respect, any of the warranties and representations by the Issuer in
clause 6.1 or by the Servicer or the Trust Manager in clause 6.2 or any
failure to perform any of the undertakings or obligations of the
Issuer, the Servicer or the Trust Manager under this Agreement;
13.1.2 if any of the conditions specified in clause 8 has not been satisfied
or waived by the Representative; or
13.1.3 if, in the Representative's opinion, there shall have been since the
date of this Agreement, a change in national or international
financial, political or economic conditions or currency exchange rates
or exchange controls which would in its view be likely to prejudice
materially the success of the offering and distribution of the Class A2
Notes or dealing in the Class A2 Notes in the secondary market.
14. CONSENT TO JURISDICTION; APPOINTMENT OF AGENT TO ACCEPT SERVICE OF
PROCESS
14.1 Each of the Servicer, the Trust Manager and the Issuer Trustee hereby
submits to the non-exclusive jurisdiction of the United States 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 Servicer, the Trust
Manager and the Issuer Trustee irrevocably appoints CT Corporation, 111
Eighth Avenue, 13th Floor, New York, New York 10011, 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 servicing the same to the address provided in
clause 19, shall be deemed in every respect effective service of
process upon it in any such suit or proceeding. Each of the Servicer,
the Trust Manager and the Issue
30
Trustee further agrees to take any and all action as may be necessary
to maintain such designation and appointment of such agent in full
force and effect for so long as the Class A2 Notes remain outstanding.
14.2 The obligation of the Servicer, the Trust Manager or the Issue 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
Servicer, the Trust Manager and the Issue Trustee agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such
Underwriter against such loss.
15. FOREIGN TAXES
All payments to be made by the Servicer, the Trust Manager or the
Issuer Trustee 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 Servicer, the Trust Manager
or the Issuer Trustee, as applicable, is compelled by law to deduct or
withhold such taxes duties or charges. In that event, the Servicer, the
Trust Manager or the Issuer Trustee, as applicable, shall pay such
additional amount as may be necessary in order that the net amounts
received after such withholding or deduction shall equal the amounts
that would have been received if no withholding or deduction had been
made.
16. JUDGMENT CURRENCY
16.1 If any judgment or order in any legal proceeding against any of the
Servicer, the Trust Manager or the Issuer Trustee 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 who 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 differenced 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 Servicer, the Trust Manager or Issuer Trustee, as
applicable, to the Payee and (b) if positive by the Payee to the
Servicer, the Trust Manager or the Issuer Trustee, as applicable. The
foregoing indemnity shall
31
constitute a separate and independent obligation of the Issuer Trustee,
the Trust Manager or the Servicer 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.
17. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
17.1 The representations, warranties, agreements, undertakings and
indemnities in this Agreement shall continue in full force and effect
notwithstanding completion of the arrangements for the purchase of the
Class A2 Notes or any investigations made by or on behalf of the
Underwriters.
18. TIME
18.1 Any date or period specified herein may be postponed or extended by
agreement among the parties but, as regards any date or period
originally fixed or so postponed or extended, time shall be of the
essence.
19. COMMUNICATIONS
All notices and communications hereunder shall be made in writing (by
letter or fax), shall be effective upon receipt by the addressee and
shall be sent as follows:
19.1 if to the Issuer, to it at:
Perpetual Trustee Company Limited
[Level 4, 333 Collins Street
Melbourne VIC 3000
Attention: Senior Manager, Securitisation Services
Facsimile: + 61 3 9615 9639]
19.2 if to the Trust Manager to it at:
Interstar Securitisation Management Pty Limited
[Address*
Attention: *
Facsimile: *]
19.3 if to the Servicer to it at:
Interstar Securities (Australia) Pty Limited
32
[Level 28, 367 Collins Street
Melbourne, Victoria 3000
Attention: Managing Director
Facsimile: + 61 3 9621 2368]
19.4 if to the Representative to it at:
Barclays Capital, Inc.
222 Broadway
New York, New York 10038
U.S.A.
Attention: *
Facsimile: *
Any such communication shall take effect, in the case of a letter, at
the time of delivery, in the case of facsimile transmission, at the
time of despatch. Any communication not by letter shall be confirmed by
letter but failure to send or receive the letter of confirmation shall
not invalidate the original communication.
20. ASSIGNMENT
This Agreement shall be binding upon, and, to the extent set forth in
this Agreement, inure solely to the benefit of, each Underwriter, the
Issuer, the Servicer, the Trust Manager, the officers and directors of
each Underwriter, the Issuer, the Servicer, and the Trust Manager and
each person who controls the Issuer, the Servicer, the Trust Manager or
such Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No
purchaser of any of the Class A2 Notes from the Underwriters shall be
deemed a successor or assigned by reason merely of such purchase.
21. COUNTERPARTS
This Agreement may be executed by any one or more of the parties hereto
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 instrument.
33
22. GOVERNING LAW AND JURISDICTION
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
34
If you are in agreement with the foregoing, please sign and return the enclosed
counterparts hereof, hereupon it will become a binding agreement in accordance
with its terms.
PERPETUAL TRUSTEES VICTORIA LIMITED
By:
NAME:
TITLE:
INTERSTAR SECURITISATION MANAGEMENT PTY LIMITED
By:
NAME:
TITLE:
INTERSTAR SECURITIES (AUSTRALIA) PTY LIMITED
By:
NAME:
TITLE:
BARCLAYS CAPITAL INC.
By:
NAME:
TITLE:
SCHEDULE A
UNDERWRITERS PRINCIPAL AMOUNT OF
CLASS A2 NOTES
Barclays Capital, Inc. [O]
[O] [O]
[O] [O]
II-1
SCHEDULE B
SELLING RESTRICTIONS
A. UNITED KINGDOM
1. Each Underwriter represents and agrees with respect to itself that the
Class A2 Notes have only been offered or sold and will only be offered
or sold in or from the United Kingdom:
(i) to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments, as
principal or agent, for the purposes of their businesses; or
(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 businesses; or
(iii) to persons otherwise in circumstances that have not resulted
and will not result in an offer to the public under the Public
Offers of Securities Regulations 1995 (as amended);
(iv) in compliance with all applicable provisions of the Financial
Services and Markets Act 2000 (FISMA), and rules and
regulations made thereunder with respect to anything done in
relation to the notes in, from or otherwise involving the
United Kingdom. Any invitation or inducement to engage in
investment activity, within the meaning of Section 21 of
FISMA, will only be communicated or caused to be communicated
in circumstances when Section 21 of FISMA does not apply,
including to persons exempted as investment professionals
under Article 19 or to high net worth persons under Article 49
of the Financial Services and Markets Act 2000 (Financial
Promotion) Order 2001, as amended.
B. AUSTRALIA
1. Each Underwriter has agreed that it:
(i) has not, directly or indirectly, offered for issue or sale or
invited applications for the issue of or for offers to
purchase nor has it sold, the Class A2 Notes;
(ii) will not, directly or indirectly, offer for issue or sale or
invited applications for the issue of or for offers to
purchase nor will it sell the Class A2 Notes; and
(iii) has not distributed and will not distribute any draft,
preliminary or definitive offering circular, or any
advertisement or other offering material,
in Australia, its territories or possessions unless:
II-1
(i) the amount payable for the Class A2 Notes on acceptance of the
offer by each offeree or invitee is a minimum amount of
A$500,000, or its equivalent in another currency -
disregarding amounts, if any, lent by the issuer trustee or
other person offering the notes or any associate of them - or
the offer or invitation is otherwise an offer or invitation
for which no disclosure is required to be made under Part 6D.2
of the Corporations Act 2001 of Australia;
(ii) the offer, invitation or distribution complies with all
applicable laws, regulations and directives in relation to the
offer, invitation or distribution and does not require any
document to be lodged with the Australian Securities and
Investments Commission; and
(iii) the Class A2 Notes will not be acquired by an associate of the
Issuer within the meaning of section 128F of the Income Tax
Assessment Act 1936 of the Commonwealth of Australia (the "TAX
ACT"), other than in the capacity of a dealer, trust manager
or underwriter in relation to a placement of the Class A2
Notes, as identified on a list provided by the Trust Manager.
2. Each Underwriter further agrees that:
(i) in connection with the primary distribution of the Class A2
Notes, it will not sell any Class A2 Notes to any person if,
at the time of such sale, the employees of such Underwriter
aware of, or involved in, the sale know, or have reasonable
grounds to suspect that, as a result of such sale, such Class
A2 Notes or any interest in such Class A2 Notes were being, or
would later be acquired, directly or indirectly, by an
associate of the issuer trustee for the purposes of section
128F of the Tax Act; and
(ii) it must offer the Class A2 Notes for which it subscribes for
sale within 30 days of the issue of those Class A2 Notes and
that such offer must only be by one of the following means, or
a combination thereof:
(a) as a result of negotiations being initiated by such
Underwriter in electronic form on Reuters or the
electronic information system made available to its
subscribers by Bloomberg, L.P., specifying in such
offer the name of the Issuer and the price at which
the Class A2 Notes are offered for sale; or
(b) by such Underwriter offering those Class A2 Notes for
sale to at least 10 persons, each of whom must be:
II-2
(I) carrying on a business of providing finance,
or investing or dealing in securities, in
the course of operating in the financial
markets; and
(II) not known to be an associate of any of the
others.
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