Draft (2) 15 January 2003
INTERSTAR SECURITISATION MANAGEMENT PTY LTD
INTERSTAR MILLENNIUM SERIES 2003-1G TRUST
(the "Trust")
US$[o] Class A2 Mortgage Backed Floating Rate Notes
US$[o] Class B1 Mortgage Backed Floating Rate Notes
FORM OF UNDERWRITING AGREEMENT
------------------------------
Barclays Capital Inc.
as Representative of the
Underwriters set forth herein
c/o Barclays Capital Inc.
200 Park Avenue
New York, New York 10166
Ladies and Gentlemen:
1. Introductory. Perpetual Trustees Victoria Limited (ABN 47 004 027
258), a limited liability public company under the Corporations Act 2001 of
Australia, in its capacity as trustee of the Trust (the "Issuer"), at the
direction of Interstar Securitisation Management Pty Limited (ACN 100 346 8987),
in its capacity as manager (the "Trust Manager") of the Trust, proposes to sell
to Barclays Capital Inc., [o] and [o] (the "Underwriters"), for whom you are
acting as representative (the "Representative"), US$[o] principal amount of
Class A2 Mortgage Backed Floating Rate Notes due 20[o] (the "Class A2 Notes")
and US$[o] principal amount of Class B1 Mortgage Backed Floating Rate Notes due
20[o] (the "Class B1 Notes" and together with the Class A2 Notes, the "Offered
Notes"). The Class B2 Notes (together with the Offered Notes, the "Notes") also
referred to, and defined in, the Prospectus (defined below) are not the subject
of this Agreement. Each Note will be secured by the assets of the Trust. The
assets of the Trust include, among other things, a pool of housing loans (the
"Loans") originated by Interstar Securities (Australia) Pty Limited (ABN 72 087
271 109) (the "Servicer") in the name of Perpetual Trustees Victoria Limited, as
trustee of a number of warehouse trusts, and secured by mortgages over
residential property located in Australia.
The Offered 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 and Exchange Commission (the "Commission") in accordance with
the provisions of the United States Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder (collectively,
the "Securities Act"), a registration statement, including a prospectus,
relating to the Offered Notes.
-1-
The Offered Notes will be constituted by, issued subject to, and have
the benefit of, a note trust deed (the "Note Trust Deed") dated on or about [o]
between the Issuer, the Trust Manager and The Bank of New York (the "Note
Trustee"), and will be 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 2003-1G Trust pursuant to the terms of the Master Trust
Deed (the "Notice of Creation of Trust") to be given by the Trust Manager and
the Servicer, the Series Notice (the "Series Notice") to be entered into by,
among others, the Issuer, the Trust Manager, the Servicer, Interstar Nominees
(B) Pty Limited, Interstar Nominees (N) Pty Limited, and Interstar Nominees (R)
Pty Limited (collectively, the "Approved Sellers"), the Note Trustee 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 and 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")).
The term "Transaction Documents" when used in this Agreement shall mean
the Note Issuance Documents, the Security Trust Deed, the Investment Management
Agreement, the Interest Rate Swaps (if any) and the Currency Swaps and in
addition shall include the Notes, including the relevant Conditions, and this
Agreement.
Unless otherwise defined in this Agreement or the context otherwise
requires, capitalized terms that 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
Agreement.
The Issuer, the Trust Manager and the Servicer hereby agree with the
Underwriters as follows:
2. Representations and Warranties of the Issuer, the Trust Manager and
the Servicer.
(a) The Issuer represents and warrants to, and agrees with, the
Underwriters that:
(i) On the Effective Date the information in the Prospectus
under the heading "The Issuer Trustee, the Trust Manager and the
Servicer - The Issuer Trustee" did not include any untrue statement of
a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, and such information will not include on the date of this
Agreement and on the Closing Date any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(ii) Since the date as of which information is given in the
Prospectus and any amendment or supplement thereto, the Issuer has not
carried on any business with respect to the Trust other than as
described in the Registration Statement.
-2-
(iii) The Issuer (in its corporate capacity) has been duly
incorporated and is validly existing as a limited liability company
under the laws of Victoria, Australia, has full power and authority to
act as trustee of the Trust as described in the Prospectus, and to
execute, deliver and perform its obligations under the Transaction
Documents, and 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 reorganization 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.
(iv) The Trust has been properly constituted and is validly
existing as a properly constituted trust under the laws of New South
Wales, Australia.
(v) The issue of the Notes has been duly authorized by the
Issuer and, when issued and (in the case of the Offered Notes)
authenticated and delivered pursuant to the Note Issuance Documents and
this Agreement (in the case of the Offered 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, reorganization and other laws of general
applicability relating to or affecting creditors' rights and the
general equitable principles.
(vi) This Agreement has been duly authorized, executed and
delivered by the Issuer, and assuming valid authorization, 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,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equitable principles.
(vii) Each of the other Transactions Documents has been duly
authorized and either has been executed and delivered or will be
executed and delivered by the Issuer on or before the Closing Date, and
either currently constitutes or, when executed and delivered by the
Issuer and the other parties thereto, will constitute a valid and
binding agreement of the Issuer, enforceable against the Issuer in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equitable
principles.
(viii) 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
-3-
or regulation of any court or governmental agency or body having
jurisdiction over the Issuer or any of its assets.
(ix) No consent, approval, authorization, order, license,
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 such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as
have been obtained under the Securities Act and the United States Trust
Indenture Act of 1939, as amended, and the rules and regulations of the
Commission promulgated thereunder (the "Trust Indenture Act") and as
may be required under state securities or "Blue Sky" laws in connection
with the purchase and distribution of the Offered Notes by the
Underwriters.
(x) The Security Trustee will 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,
among others, the holders of the Notes.
(xi) 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.
(xii) On the Closing Date, there shall not exist any material
default 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.
(xiii) Subject always to the observance by each Underwriter of
the representations and warranties referred to in Section 17 hereof,
the Issuer: (1) has not (directly or indirectly) offered for issue or
sale or invited applications for the issue of or for offers to purchase
nor has it sold the Offered Notes; (2) will not (directly or
indirectly) offer for issue or sale or invited applications for the
issue of or for offers to purchase nor will it sell the Offered Notes;
and (3) has not distributed and will not distribute any draft,
preliminary or definitive prospectus, or any advertisement or other
offering material; in each case, to Interstar Securities (Australia)
Pty Limited, 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 Offered Notes).
(xiv) Subject always to the observance by each Underwriter of
the representations and warranties referred to in Sections 16 and 17
hereof, the Issuer will not itself, and will not authorize any other
person to, directly or indirectly, offer, sell, resell,
-4-
reoffer or deliver Offered 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.
(xv) All consents, licenses, approvals and authorizations of
any governmental body in connection with the execution, delivery and
performance of each Transaction Document by the Issuer have been
obtained and are validly existing.
(b) Each of the Servicer and the 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:
(i) A registration statement on Form S-11 (No. 333-[o]),
including a form of prospectus and such amendments thereto as may have
been required to the date hereof, relating to the Offered Notes and the
offering thereof in accordance with the provisions of the Securities
Act has been filed with, and has been declared effective by, the
Commission. If any post-effective amendment to such registration
statement has been filed with the Commission prior to the execution and
delivery of this Agreement, the most recent such amendment has been
declared effective by the Commission. For purposes of this Agreement,
"Effective Time" means the date and time as of which such registration
statement, or the most recent post-effective amendment thereto, if any,
was declared effective by the Commission, and "Effective Date" means
the date of the Effective Time. Such registration statement, as amended
at the Effective Time, including all material incorporated by reference
therein and including all information (if any) deemed to be part of
such registration statement at the Effective Time pursuant to Rule 430A
of the Commission promulgated under the Securities Act ("Rule 430A"),
is referred to in this Agreement as the "Registration Statement", and
the form of prospectus relating to the Offered Notes, as first filed
with the Commission pursuant to and in accordance with Rule 424(b) of
the Commission promulgated under the Securities Act ("Rule 424(b)") or
(if no such filing is required) as included in the Registration
Statement, including all material incorporated by reference in such
prospectus under the Securities Act, is referred to in this Agreement
as the "Prospectus". The conditions to the use of a registration
statement on Form S-11 under the Securities Act as set forth in the
General Instructions to Form S-11 have been satisfied with respect to
the Issuer, the Servicer and the Trust Manager.
(ii) 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
or the Servicer, threatened by the Commission, and on the Effective
Date the Registration Statement and the Prospectus conformed in all
respects to the requirements of the Securities Act, and did not include
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, and on the date of this Agreement, the
Registration Statement and the Prospectus conform, and at the time of
filing of the Prospectus pursuant to Rule 424(b) such documents will
conform, in all
-5-
respects to the requirements of the Securities Act, and on the Closing
Date the Registration Statement and the Prospectus will conform in all
respects to the requirements of the Securities Act, and neither of such
documents will include on the date of this Agreement and on the Closing
Date 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, except that the foregoing
representations and warranties shall not apply to (1) 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 (2) 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 Underwriters
acknowledges and agrees that the information under the heading "Plan of
Distribution" relating to selling concessions and reallowances and
relating to transactions by the Underwriters in accordance with
Regulation M of the Commission promulgated under the United States
Securities Exchange Act of 1934, as amended (collectively, the
"Underwriter Information") 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.
(iii) Neither the Servicer nor the Trust Manager has taken any
action, or omitted to take any action, nor will 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
Offered Notes or distributing the Prospectus in any country or
jurisdiction except under circumstances that will result in compliance
with all applicable laws and regulations.
(iv) 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.
(v) Except as described in the Prospectus, since the date as
of which information is given in the Registration Statement or the
Prospectus and except as otherwise stated in the Registration Statement
or the Prospectus, there has been no material adverse change or any
development reasonably likely to result in a material adverse change in
the condition (financial or otherwise) general affairs, business,
prospects, management, shareholders' equity or results of operations of
the Servicer or the Trust Manager which is or might reasonably be
considered to be material in the context of the issue and offering of
the Offered Notes.
(vi) Each of the Servicer and the Trust Manager (x) has been
duly incorporated and is validly existing as a limited liability public
company under the laws of Victoria, Australia, (y) has all requisite
corporate power, authority and legal right to act as servicer and trust
manager, respectively (as described in the Prospectus), and (z) has not
taken any corporation 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,
-6-
dissolution or reorganization 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 revenue.
(vii) This Agreement has been duly authorized and validly
executed and delivered by each of the Servicer and the Trust Manager,
and assuming valid authorization, execution and delivery by the other
parties hereto, constitutes valid, legally binding obligations of the
Servicer and the Trust Manager, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equitable principles.
(viii) Each of the other Transaction Documents to which the
Trust Manager or the Servicer is a party has been duly authorized, and
either has been executed and delivered or will be executed and
delivered by the Servicer and the Trust Manager on or before the
Closing Date, and either currently constitutes or, when executed and
delivered by the Servicer, the Trust Manager and the other parties
thereto, will constitute a valid and binding agreement of the Servicer
and the Trust Manager, enforceable against the Servicer and the Trust
Manager in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equitable principles.
(ix) All information produced in writing or on electronic
media provided by the Servicer or the Trust Manager to KPMG in
connection with the letter referred to in Section 6(n) is true and
accurate in all material respects and is not misleading or deceptive
(including by reason of the omission of any fact or circumstance from
it) in any material respect.
(x) On the Closing Date 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 the
passage of time, the giving of notice or the making of any
determination of materiality, would constitute a material default by
the Servicer and/or the Trust Manager under any of the Transaction
Documents.
(xi) Except as disclosed in the Prospectus, there are no legal
or governmental proceedings, actual or, to the best of its knowledge,
pending or threatened, at the date hereof against or affecting its
assets or revenues which are or would be material, individually or in
the aggregate, in the context of its ability to perform its obligations
under this Agreement and the other Transaction Documents, in each case
to which it is expressed to be a party.
(xii) No consent, approval, authorization, order, license,
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 Offered Notes, the purchase of
the 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 such consents, approvals,
-7-
authorizations, 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 Offered Notes by
the Underwriters.
(xiii) All consents, licenses, approvals and authorizations of
any governmental 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
existing.
(xiv) On the Closing Date upon payment of the Purchase Price
and upon the execution and delivery of the relevant Sale Notices, the
Issuer will hold legal and beneficial title to the Loans and Related
Rights free from any Security Interest therein save those created by
the Security Trust Deed.
(xv) 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.
(xvi) The Trust is not, and as a result of the issue of the
Notes or the receipt or application of the proceeds thereof will not
be, required to register under the United States Investment Company Act
of 1940, as amended, and the rules and regulations of the Commission
promulgated thereunder (the "Investment Company Act").
(xvii) 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 Offered 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 Offered Notes.
(xviii) Since the date as of which information is given in the
Prospectus, neither the Servicer nor the Trust Manager has carried on
any material business other than as described in the Prospectus.
3. Purchase, Sale and Delivery of the Offered Notes.
(a) 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 Offered Notes
to the Underwriters, and the Underwriters agree, severally and not jointly, to
purchase from the Issuer on the Closing Date, the number, class and aggregate
principal amount of the Offered Notes set forth opposite such Underwriter's name
on
-8-
Schedule A. The Class A2 Notes shall be so purchased at a price equal to [o]% of
the principal amount of the Class A2 Notes, and the Class B1 Notes shall be so
purchased at a price equal to [o]% of the principal amount of the Class B1 Notes
(collectively, the "Selling Price").
(b) In consideration of the agreement by each of the Underwriters to
purchase and pay for the Offered Notes, the Servicer agrees to pay or procure
the payment at the Closing Date to the Underwriters:
(i) of a combined management and underwriting commission in
respect of the Class A2 Notes of [o]% of the principal amount of the
Class A2 Notes;
(ii) of a selling concession of an amount equal to [o]% of the
principal amount of the Class A2 Notes;
(iii) of a combined management and underwriting commission in
respect of the Class B1 Notes of [o]% of the principal amount of the
Class B1 Notes; and
(iv) of a selling concession of an amount equal to [o]% of the
principal amount of the Class B1 Notes.
The amounts referred to in Sections 3(b)(i), (ii), (iii) and (iv) above are
together called the "Commissions".
(c) The Issuer shall deliver the Offered Notes at the offices of Mayer,
Brown, Rowe & Maw, 1675 Broadway, New York, New York 10019, USA at 1.00 p.m.,
New York time, on [o], or at such other time not later than seven full business
days thereafter as you and the Issuer determine, such time and date being herein
referred to as the "Closing Date". The Offered Notes shall be issued in
book-entry format and shall be held by the Note Trustee as custodian for The
Depository Trust Company ("DTC") and registered in the name of Cede & Co., as
nominee for DTC. Delivery of the Offered 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 the Closing Date. The Offered Notes will be made
available for checking at the above offices at least 24 hours prior to the
Closing Date.
4. Offering by Underwriters. It is understood that after the Effective
Date the Underwriters initially propose to offer the Offered Notes for sale to
the public (which may include selected dealers) as set forth in the Prospectus.
5. Certain Agreements of the Issuer, the Servicer and Trust Manager.
(a) The Issuer covenants and agrees with each of the Underwriters
(subject to Section 11 below) as follows:
(i) The Issuer will, at any time prior to payment being made
to the Issuer on the Closing Date, 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
-9-
or would render untrue or incorrect in any material respect any of the
representations and warranties in Section 2(a) as if they had been made
or given at such time with reference to the facts and circumstances
then existing.
(ii) On the Closing Date, the Issuer will do all things within
its power and required of it on such date under the terms of the
Transaction Documents.
(iii) If at any time prior to the Closing Date 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.
(iv) The Issuer will 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 stabilize or
maintain the market price of the Offered Notes at levels other than
those which might otherwise prevail in the open market.
(v) The Issuer will pay (A) 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 Offered Notes or the execution or delivery of
the Transaction Documents, and (B) 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).
(vi) From the date hereof to (and including) the Closing Date,
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 Offered Notes.
(b) The Servicer and the Trust Manager, jointly and severally, covenant
and agree with each of the Underwriters as follows (and the Servicer covenants
and agrees that it will cause the Trust Manager to observe the following
covenants and agreements):
(i) The Trust Manager will 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).
-10-
(ii) The Trust Manager will advise the Representative promptly
of any proposal to amend or supplement the Registration Statement as
filed or the related Prospectus and will not effect such amendment or
supplementation without the Representative's consent. The Trust Manager
will also advise the Representative promptly of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement and will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if
issued.
(iii) At any time prior to payment being made to the Issuer on
the Closing Date, unless the same is capable of remedy and is forthwith
remedied, the Trust Manager will 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 Section 2(b) as if they had been made or given at
such time with reference to the facts and circumstances then existing.
(iv) At any time when a prospectus relating to the Offered
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 Section
5(b).
(v) The Trust Manager will, as soon as practicable, make
generally available to the holders of the Offered 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.
(vi) The Trust Manager will assist the Representative in
making arrangements with DTC, Euroclear and Clearstream, Luxembourg
concerning the issue of the Offered Notes and related matters;
(vii) On the Closing Date each of the Servicer and the Trust
Manager will do all things within its power and required by it on such
date under the terms of the Transaction Documents.
(viii) The Trust Manager will 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).
-11-
(ix) The Trust Manager will 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.
(x) The Trust Manager will 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.
(xi) Neither the Servicer nor the Trust Manager will take any
action or fail to take any action to cause the Trust to become an
investment company under the Investment Company Act.
(xii) The Trust Manager will endeavor to qualify the Offered
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 Offered 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 Offered Notes;
(xiii) The Trust Manager will, so long as the Offered Notes
are outstanding, furnish to the Representative:
(A) 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;
(B) copies of each amendment to the Transaction
Documents;
(C) copies of all reports or other communications
(financial or other) furnished to holders of the Offered
Notes, and copies of any reports and financial statements
furnished to the Commission, any governmental or regulatory
authority or any national securities exchange, and any
documents filed with the Australian Stock Exchange or the
Commission; and
(D) from time to time such other information
concerning the Trust, the Trust Manager or the Servicer as the
Representative may reasonably request.
(xiv) To the extent, if any, that any of the ratings provided
with respect to the Class A2 Notes or the Class B1 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") are conditional upon
the furnishing of documents or the taking of any other actions by the
Servicer or the Trust Manager, the Servicer and the Trust Manager will
furnish such documents and take any such other actions.
(xv) Neither the Trust Manager nor the Servicer will offer,
sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under
the Securities Act relating to asset-backed securities, or
-12-
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 on the Closing Date.
(c) The rights and remedies conferred upon each Underwriter (and the
other indemnified persons) under this Section 5 shall continue in full force and
effect notwithstanding the completion of the arrangements set out herein for the
issue and sale of, and payment for, the Offered Notes and regardless of any
investigation by any Underwriter.
6. Conditions of the Obligations of the Underwriters. The obligation of
the several Underwriters to purchase and pay for the Offered Notes will be
subject to the accuracy of the representations and warranties on the part of
each of the Issuer, the Servicer and the Trust Manager herein, to the accuracy
of the statements of officers of each of the Issuer, the Servicer and the Trust
Manager made pursuant to the provisions hereof, to the performance by each of
the Issuer, the Servicer and the Trust Manager of its obligations hereunder and
to the following additional conditions precedent:
(a) You shall have received evidence satisfactory to you that each of
the Transaction Documents has been executed and delivered by the respective
parties and that all conditions precedent to the Transaction Documents other
than the issue of the Offered Notes have been satisfied.
(b) You shall have received evidence satisfactory to you that on the
Closing Date the Class B2 Notes shall have been issued.
(c) You shall have received evidence satisfactory to you that 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 have been taken or satisfied, as the case
may be.
(d) The Registration Statement shall have become effective on or prior
to the date hereof, or if a post-effective amendment is required to be filed
under the Securities Act, such post-effective amendment shall have become
effective, not later than 5:00 p.m., New York City time, on the date hereof or
on such later date to which you have consented; and no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
shall be in effect, and no proceedings for such purpose shall be pending before
or threatened by the Commission. The Prospectus, including all price-related
information previously omitted from the prospectus which formed a part of the
Registration Statement at the time it became effective, in accordance with Rule
430A, shall have been transmitted to the Commission for filing pursuant to Rule
424(b) within the applicable time period prescribed for such filing by the rules
and regulations under the Securities Act and in accordance with Section 5(b)(i)
hereof; and prior to the Closing Date the Trust Manager shall have provided
evidence satisfactory to you of such timely filing, and all requests for
additional information shall have been complied with to your satisfaction.
-13-
(e) The Australian Stock Exchange having agreed to list the Notes,
subject only to the issue of the global Notes or you shall be satisfied that
such listing will be granted shortly after the Closing Date.
(f) On or before the Closing Date you shall have received opinions, in
form and substance satisfactory to you, dated the Closing Date 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) Allens 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 you may
reasonably require.
(g) You 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 Underwriters to rely on
such opinion as if it were addressed to the Underwriters.
(h) On the Closing Date the representations and warranties of the
Issuer, the Servicer and the Trust Manager in this Agreement shall be true,
accurate and correct at, and as if made on, the Closing Date; and each of the
Issuer, the Servicer and the Trust Manager shall have performed all of their
respective obligations under this Agreement to be performed on or before the
Closing Date and you shall have received a certificate from each of the Issuer,
the Servicer and the Trust Manager to such effect, dated the Closing Date and
signed by a duly authorized officer.
(i) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred:
(i) any change, or any development or event involving a
prospective change, in the condition (financial or other), business,
properties or results of operations of any of the Issuer, the Servicer,
the Trust Manager or any Swap Party and their respective subsidiaries,
in each case, taken as one enterprise, which, in the sole 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 Offered Notes;
-14-
(ii) 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) of the Commission promulgated
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 the Class B1 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);
(iii) any material suspension or material limitation of
trading in securities generally on the New York Stock Exchange, the
Australian Stock Exchange or any other exchange on which the Offered
Notes are listed, or any setting of minimum prices for trading on any
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;
(iv) any material disruption in commercial banking or
securities settlement or clearance services in the United States or
with respect to the Clearstream, Luxembourg or the Euroclear systems in
Europe;
(v) any banking moratorium declared by U.S. Federal, New York,
United Kingdom or Australian authorities; or
(vi) any outbreak or escalation of major hostilities in which
the United States, the United Kingdom 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
sole judgment of the Representative, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Offered Notes.
(j) You shall have received evidence satisfactory to you that the Class
A2 Notes shall be rated AAA by S&P and Aaa by Moody's and the Class B Notes
having been assigned a rating of AA- (creditwatch developing) by S&P and no such
rating having been downgraded and, except for the Class B Notes no Notes having
been placed on "credit watch" and there having occurred no downgrade, nor any
notice having been given of any intended or potential downgrading, or 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.
(k) You shall have received a solvency certificate of each of the
Approved Sellers dated the Closing Date and signed by a duly authorized officer.
(l) The Underwriters shall have received satisfactory evidence that
payment of the Commissions and the expenses referred to in Section 10 will be
made on the Closing Date.
(m) You shall have received a certificate, dated the Closing Date, 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:
-15-
(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 on or prior to the Closing Date;
(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
(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.
(n) You shall have received a letter, dated the Closing Date, of KPMG
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.
(o) The Representative may, at its discretion and upon such terms as it
thinks fit, waive compliance with the whole or any part of this Section 6 (other
than Sections 6(a) and (b)).
7. Indemnification and Contribution.
(a) 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
-16-
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 by the Underwriters in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(b) 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 an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, the
Prospectus or any preliminary prospectus, or any amendment or supplement to the
Registration Statement, the Prospectus or any preliminary prospectus, or arising
out of or are based upon the omission or alleged omission to state in the
Registration Statement, the Prospectus or any preliminary prospectus a material
fact necessary to make the statements therein, in the light of the circumstances
under which they are made, not misleading, or 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, however, that neither the Trust
Manager nor the Servicer will be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with the Underwriter
Information.
(c) Each Underwriter will, severally and not jointly, indemnify and
hold harmless each of the Issuer and the Trust Manager, its partners, its
directors and officers and each person, if any, who controls such company within
the meaning of Section 15 of the Securities Act against any losses, claims,
damages or liabilities to which 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 untrue
statement or alleged untrue statement of any material fact contained in the
Underwriter Information in the Prospectus, any preliminary prospectus or the
Registration Statement, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they are made, not misleading, 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 may be) in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(d) Promptly after receipt by an indemnified party under this Section
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
subsection (a), (b) or (c) above, 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 subsection (a), (b) or (c) above or otherwise. In
case any such action shall be brought against any indemnified party, the
indemnifying party shall be entitled to
-17-
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided further, however, that (i) 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 defenses available to it or other indemnified parties which are different
from or additional to those available to the indemnifying party or (ii) if
representation of both the indemnifying party or parties and the indemnified
party or parties by the same counsel is inappropriate under applicable standards
of professional conduct due to actual or potential differing interests between
them, then the indemnified party or parties shall have the right to select
separate counsel to assert such legal defenses or provide separate counsel and
to otherwise participate in the defense of such action on behalf of such
indemnified party or parties. An indemnifying party shall not enter into a
compromise or other settlement of any such action without the prior consent of
the indemnified parties (such consent not to be unreasonably withheld).
(e) Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying party will not be
liable to such indemnified party under this Section 7 or for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed separate
counsel in accordance with the proviso in subsection (d) (it being understood,
however, that the indemnifying party shall not, in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
expenses of more than one separate counsel in each relevant jurisdiction,
approved by the Underwriters in the case of subsection (a), (b) or (c),
representing the indemnified parties under subsection (a), (b) or (c), as the
case may be, who are parties to such action); (ii) the indemnifying party shall
not have employed counsel reasonably 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 authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and (iv) except that, if clause
(i) or (iii) is applicable, such liability shall be only in respect of the
counsel referred to in such clause (i) or (iii).
(f) The obligations of each of the Issuer, the Servicer and the Trust
Manager under this Section 7 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 Section 7 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.
(g) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a
-18-
result of the losses, claims, damages or liabilities referred to in subsection
(a), (b) or (c) above (i) in such proportion as is appropriate to reflect the
relative benefits received by the Issuer, the Servicer or the Trust Manager on
the one hand and the Underwriters on the other from the offering of the Offered
Notes, or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Issuer, the Servicer or the Trust Manager 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 Issuer, the Servicer or the Trust Manager
or the Underwriters and each party's relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (g) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (g). Notwithstanding
the provisions of this subsection (g), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Offered Notes underwritten by the Underwriters 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. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(g) to contribute are several in proportion to their respective underwriting
obligations and not joint.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Issuer, the Servicer, the Trust Manager or its respective officers and of the
several Underwriters set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation, or statement as to
the results thereof, made by or on behalf of the Underwriters, the Issuer, the
Servicer or the Trust Manager, and will survive delivery of and payment for the
Offered Notes. If this Agreement is terminated or if for any reason other than
default by the Underwriters the purchase of the Offered Notes by the
Underwriters is not consummated, the Servicer and the Trust Manager shall remain
responsible for the expenses to be paid or reimbursed by it or the Issuer
pursuant to Sections 5 and 10 and the respective obligations of the Issuer, the
Servicer, the Trust Manager and the Underwriters pursuant to Section 7 shall
remain in effect. If for any reason the purchase of the Offered Notes by the
Underwriters is not consummated other than solely because of the occurrence of
any event specified in clause (iii), (iv) or (v) of Section 6(i), the Servicer
and the Trust Manager will reimburse the Underwriters for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel and reasonable
costs and expenses of printing) reasonably incurred by them in connection with
the offering of the Offered Notes.
9. Default of Underwriter. If any Underwriter defaults in its
obligations to purchase Offered Notes hereunder and the aggregate principal
amount of the Offered Notes that such
-19-
defaulting Underwriter agreed but failed to purchase does not exceed 10% of the
total principal amount of the Offered Notes, you may make arrangements
satisfactory to the Issuer, the Servicer and the Trust Manager for the purchase
of such Offered Notes by other persons, including the non-defaulting
Underwriters, but if no such arrangements are made by the Closing Date, the
non-defaulting Underwriters shall be obligated, in proportion to their
commitments hereunder, to purchase the Offered Notes for which such defaulting
Underwriter agreed but failed to purchase. If any Underwriter so defaults and
the aggregate principal amount of the Offered Notes with respect to which such
default or defaults occur exceeds 10% of the total principal amount of the
Offered Notes and arrangements satisfactory to you and the Issuer, the Servicer
and the Trust Manager for the purchase of such Offered Notes by other persons
are not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter or the Issuer,
the Servicer or the Trust Manager, except as provided in Section 8. Nothing
herein will relieve a defaulting Underwriter for its default.
10. Expenses.
(a) 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:
(i) all costs and expenses in connection with:
(A) 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;
(B) the initial delivery and distribution (including
transportation and packaging but not insurance (other than to
the place of distribution)) of the Notes;
(C) the listing of the Notes on the Australian Stock
Exchange; and
(D) any filing fees and other expenses (including
fees and disbursements of Underwriters' counsel) incurred in
connection with qualification of the Offered Notes for sale
and determination of the eligibility of the Offered Notes for
investment under the laws of such jurisdiction as the
Representative designates, and the printing of memoranda
relating thereto;
(ii) 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;
(iii) 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, the registration fees of the Commission and obtaining and
maintaining the listing of the Offered Notes;
-20-
(iv) the fees charged by the Rating Agencies for rating the
Notes;
(v) 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
(vi) 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 Section 10(a).
(b) 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 Offered Notes.
(c) 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:
(i) expenses described in Section 10(a) if incurred by the
Underwriters;
(ii) United States, United Kingdom, Australian, Belgian or
Luxembourg documentary, stamp, reserve or similar United States, United
Kingdom, 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 Offered 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;
(iii) 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
(iv) payments to the Underwriters under this Section 10 shall
be in addition to the Commissions payable to the Underwriters under
Section 3(b).
(d) Without prejudice to the generality of Sections 10(c)(i) to (iv)
(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
Offered 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).
(e) 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 Closing Date.
-21-
(f) All payments in respect of the costs, fees, expenses referred to in
Sections 10(a)(i) and 10(b) 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 among the Underwriters or the payment of them to any other
persons.
11. Trustee Provisions. Notwithstanding any other terms of this
Agreement:
(a) 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.
(b) 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.
(c) 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).
(d) 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 willful default.
(e) 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 willful default
of the Issuer for the purpose of Section 11(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 fulfill 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.
(f) 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
-22-
the Issuer to any personal liability and no act or omission of any such person
will be considered fraud, negligence or willful default of the Issuer for the
purpose of Section 11(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.
(g) In this Section 11, "Relevant Parties" means each of the Trust
Manager, the Servicer, the Calculation Agent, each Paying Agent, the Note
Trustee and any Support Facility Provider.
(h) In this Section 11, "willful default" means any willful failure to
comply with, or willful 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 the Issuer
or 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, 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 in accordance with any proper
instruction or direction of the Noteholders of the Trust at a meeting convened
under the Master Trust Deed.
(i) Nothing in this Section 11 limits the obligations expressly imposed
on the Issuer under the Transaction Documents.
12. Termination. 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 Offered Notes to the
Issuer:
(i) 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 Section 2(a) or by the Servicer or the Trust Manager in
Section 2(b) or any failure to perform any of the undertakings or
obligations of the Issuer, the Servicer or the Trust Manager under this
Agreement;
(ii) if any of the conditions specified in Section 6 has not
been satisfied or waived by the Representative; or
(iii) 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 Offered Notes or dealing in the Offered Notes in the secondary
market.
13. Notices. 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:
if to the Issuer, to it at:
-23-
Perpetual Trustees Victoria Limited
Level 4, 333 Collins Street
Melbourne, Victoria 3000
Attention: Senior Manager, Securitisation Services
Facsimile: + 61 3 9615 9639
if to the Trust Manager to it at:
Interstar Securitisation Management Pty Limited
Level 28, 367 Collins Street
Melbourne, Victoria 3000
Attention: Sam Kyriacou
Facsimile: + 61 3 9620 3090
if to the Servicer to it at:
Interstar Securities (Australia) Pty Limited
Level 28, 367 Collins Street
Melbourne, Victoria 3000
Attention: Managing Director
Facsimile: + 61 3 9621 2368
if to the Representative to it at:
Barclays Capital Inc.
200 Park Avenue
New York, New York 10166
U.S.A.
Attention: Syndicate Desk
Facsimile: +1 212 412 7305
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 dispatch. 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.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
16. Financial Services and Markets Act (the "FSMA"). Each Underwriter
represents and agrees with respect to itself that the Offered Notes have only
been offered or sold and will only be offered or sold in or from the United
Kingdom (a) to persons (i) whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments, as principal or agent, for the
purposes of their businesses, (ii) who it is reasonable to expect will acquire,
-24-
hold, manage or dispose of investments, as principal or agent, for the purposes
of their businesses, or (iii) 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), and (b) 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.
17. Australian Offering Restrictions.
(a) Each Underwriter represents and agrees with respect to itself 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 Offered 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 Offered 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:
(A) the amount payable for the Offered 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 Offered 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;
(B) 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
(C) the Offered Notes will not be acquired by an
associate of the Issuer within the meaning of section 128F of
the Tax Act, other than in the capacity of a dealer, trust
manager or underwriter in relation to a placement of the
Offered Notes, as identified on a list provided by the Trust
Manager.
(b) Each Underwriter further agrees that:
(i) in connection with the primary distribution of the Offered
Notes, it will not sell any Offered Notes to any person if, at the time
of such sale, the employees of
-25-
such Underwriter aware of, or involved in, the sale know, or have
reasonable grounds to suspect that, as a result of such sale, such
Offered Notes or any interest in such Offered Notes were being, or
would later be acquired, directly or indirectly, by an associate of the
Issuer for the purposes of section 128F of the Tax Act; and
(ii) it must offer the Offered Notes for which it subscribes
for sale within 30 days of the issue of those Offered 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 Offered Notes
are offered for sale; or
(B) by such Underwriter offering those Offered Notes
for sale to at least 10 persons, each of whom must be:
I. carrying on a business of providing
finance, or investing or dealing in securities, in
the course of operating in the financial markets; and
II. not known to be an associate of any of
the others.
18. Consent to Jurisdiction; appointment of Agent to Accept Service of
Process.
(a) Each of the Issuer, the Servicer and the Trust Manager 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 Issuer, the Servicer and the Trust Manager
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, shall be deemed in every respect
effective service of process upon it in any such suit or proceeding. Each of the
Issuer, the Servicer and the Trust Manager 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 Offered Notes are outstanding.
(b) The obligation of the Issuer, the Servicer and the Trust Manager 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 Issuer, the Servicer and the Trust Manager agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Underwriter
against such loss.
-26-
19. Foreign Taxes. All payments to be made by the Servicer, the Trust
Manager or the Issuer 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, 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, 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.
20. Judgment Currency. If any judgment or order in any legal proceeding
against any of the Issuer, the Servicer or the Trust Manager 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 amount is paid (the "Payee") is
able to purchase United States dollars with the amount of the Judgment Currency
actually received by the holder, then the difference expressed in United States
dollars, between such amount calculated at the Judgment Rate and such amount
calculated at the Market Rates shall be indemnified (a) if negative by the
Issuer, the Servicer or the Trust Manager, as applicable, to the Payee and (b)
if positive by the payee to the Issuer, the Servicer or the Trust Manager, as
applicable. The foregoing indemnity shall constitute a separate and independent
obligation of the Issuer, the Servicer or the Trust Manager 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 of Exchange" shall include any
premiums and costs of exchange payable in connection with the purchase of, or
conversion into, the relevant currency.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-27-
If you are in agreement with the foregoing, please sign two
counterparts hereof and return one to the Issuer whereupon this letter and your
acceptance shall become a binding agreement among the Issuer, the Servicer, the
Trust Manager and the Underwriters.
Very truly yours,
PERPETUAL TRUSTEES VICTORIA LIMITED
By
---------------------------------
Name:
Title:
INTERSTAR SECURITISATION MANAGEMENT
PTY LIMITED
By
---------------------------------
Name:
Title:
INTERSTAR SECURITIES (AUSTRALIA)
PTY LIMITED
By
---------------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof
BARCLAYS CAPITAL INC.
as Representative of the
Underwriters set forth herein
By
------------------------------
Name:
Title:
[Underwriting Agreement Signature Page]
SCHEDULE A
Class A2 Notes
--------------
Underwriters Principal Amount of
------------ Class A2 Notes
--------------
Barclays Capital Inc. US$[o]
[o]
US$[o]
[o]
US$[o]
[o]
US$[o]
Class B1 Notes
--------------
Underwriters Principal Amount of
------------ Class B1 Notes
--------------
Barclays Capital Inc. US$[o]
-29-