Draft: 1
May 16, 2003
INTERSTAR SECURITISATION MANAGEMENT PTY LTD
INTERSTAR MILLENNIUM SERIES 2003-3G TRUST
(the "Trust")
US$[500,000,000] Class A2 Mortgage Backed Floating Rate Notes
US$[28,000,000] Class B1 Mortgage Backed Floating Rate Notes
FORM OF UNDERWRITING AGREEMENT
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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 42 004 027
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 (ABN 56 100 346
898), in its capacity as manager (the "Trust Manager") of the Trust, proposes to
sell to Barclays Capital Inc. and [o] (the "Underwriters"), for whom you are
acting as representative (the "Representative"), US$[500,000,000] principal
amount of Class A2 Mortgage Backed Floating Rate Notes due 2035 (the "Class A2
Notes") and US$[28,000,000] principal amount of Class B1 Mortgage Backed
Floating Rate Notes due 2035 (the "Class B1 Notes" and together with the Class
A2 Notes, the "Offered Notes"). The Class A3 Notes, the Class A4 Notes and 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)
("Interstar") 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.
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], 2003 between the Issuer, the
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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 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 2003-3G Trust pursuant to the terms of
the Master Trust Deed (the "Notice of Creation of Trust") to be given by the
Trust Manager and Interstar, the Series Notice (the "Series Notice") to be
entered into by, among others, the Issuer, the Trust Manager and Interstar, as
the approved seller (in such capacity, the "Seller") and as servicer (in such
capacity, the "Servicer"), 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, Interstar 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 Interstar hereby agree with
the Underwriters as follows:
2. Representations and Warranties of the Issuer, the Trust Manager and
Interstar.
(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.
(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
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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 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
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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 Sections 16 and 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 invite 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, 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, 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.
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(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 Interstar 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. 333-102569),
including a form of preliminary 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, and including all information (if any) deemed to
be part of such registration statement at the Effective Time pursuant
to Rule 430A(b) 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, 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, Interstar 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 Interstar,
threatened by the Commission, and on the Effective Date the
Registration Statement conformed in all material respects to the
requirements of the Securities Act and the Trust Indenture 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 material respects to the requirements of
the Securities Act and the Trust Indenture Act, and on the Closing Date
the Registration Statement and the Prospectus will conform in all
material respects to the requirements of the Securities Act and the
Trust Indenture Act, and the Registration Statement 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 any material fact required to be
stated therein or necessary to make the statements therein not
misleading,
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and the Prospectus as amended or supplemented, if applicable, 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 any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, except that the foregoing representations and
warranties shall not apply to (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, Interstar 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 Interstar 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) Interstar and the Trust Manager have available to them the
necessary personnel (with relevant experience) and facilities
(including computer facilities and software) to permit Interstar 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), business, management,
shareholders' equity or results of operations of Interstar 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 Interstar 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 seller and
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, 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.
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(vii) This Agreement has been duly authorized and validly executed
and delivered by each of Interstar and the Trust Manager, and assuming
valid authorization, execution and delivery by the other parties
hereto, constitutes valid, legally binding obligations of Interstar 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 Interstar is a party has been duly authorized, and either
has been executed and delivered or will be executed and delivered by
Interstar and the Trust Manager on or before the Closing Date, and
either currently constitutes or, when executed and delivered by
Interstar, the Trust Manager and the other parties thereto, will
constitute a valid and binding agreement of Interstar and the Trust
Manager, enforceable against Interstar 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 Interstar 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 Interstar 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 Interstar 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 Interstar and the Trust Manager
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 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.
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(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 Interstar 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 Interstar 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 Interstar'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 Interstar 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 Schedule A. The Class A2 Notes shall be so purchased at a price equal to
[100]% of the principal amount of the Class A2 Notes, and the Class B1 Notes
shall be so purchased at a price equal to [100]% of the principal amount of the
Class B1 Notes (collectively, the "Selling Price").
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(b) In consideration of the agreement by each of the Underwriters to
purchase and pay for the Offered Notes, Interstar 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, at the direction of the Trust Manager, 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, 2003, 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, on the Closing
Date or such other time and date as the Underwriters may agree upon in writing.
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, Interstar 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 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.
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(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 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).
(v) 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) Interstar and the Trust Manager, jointly and severally, covenant
and agree with each of the Underwriters as follows (and Interstar 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).
(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.
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(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 Interstar 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).
(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
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documents, in each case as soon as available and in such quantities as
the Representative may reasonably request.
(xi) Neither Interstar 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 Interstar 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
Interstar or the Trust Manager, Interstar and the Trust Manager will
furnish such documents and take any such other actions.
(xv) Neither the Trust Manager nor Interstar will offer, sell,
contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under
the Securities Act relating to asset-backed securities, or publicly
disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of the
Representative for a period beginning at the date of this Agreement and
ending on the Closing Date.
(xvi) Neither Interstar nor the Trust Manager will 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
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price of the Offered Notes at levels other than those which might
otherwise prevail in the open market.
(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, Interstar and the Trust Manager herein, to the accuracy of
the statements of officers of each of the Issuer, Interstar and the Trust
Manager made pursuant to the provisions hereof, to the performance by each of
the Issuer, Interstar 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 A3 Notes, the Class A4 Notes and 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 Seller of the Loans and Related Rights to be acquired from the Seller
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.
(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.
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(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 Interstar and the
Trust Manager;
(iii) Allens Arthur Robinson, legal advisers to Interstar and the
Trust Manager;
(iv) Mallesons Stephen Jaques, legal advisers to the Issuer;
(v) legal advisers to the Swap Party;
(vi) Emmet, Marvin & Martin, LP, 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, Interstar 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, Interstar and the Trust Manager shall have performed all of their
respective obligations under this Agreement to be performed on or before the
Closing Date.
(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, Interstar, 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;
(ii) any downgrading in the rating of any debt securities of any of
Interstar, the Trust Manager, the Issuer 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 Interstar, the
Trust Manager, the Issuer or
-14-
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
Interstar, the Trust Manager, the Issuer 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- 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 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 the Seller 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
Interstar 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 on or
prior to the Closing Date;
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(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 Interstar 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 Interstar 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 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.
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(b) Each of Interstar 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
Interstar 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 the foregoing
indemnity with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter) from whom the person asserting any such losses, claims, damages or
liabilities purchased Offered Notes if such untrue statement or omission or
alleged untrue statement or omission made in such preliminary prospectus is
eliminated or remedied in the Prospectus (as amended or supplemented if the
Trust Manager or Interstar shall have furnished any amendments or supplements
thereto) and, if required by law, a copy of the Prospectus (as so amended or
supplemented) shall not have been furnished to such person at or prior to the
written confirmation of the sale of such Offered Notes to such person; provided
further, that neither the Trust Manager nor Interstar 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 (i) any of such documents in reliance upon and in
conformity with the Underwriter Information or (ii) any information contained
under the heading "Description of the US$ Notes - Currency Swap Provider".
(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 each of 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
-17-
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 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, Interstar and the Trust
Manager under this Section 7 shall be in addition to any liability which the
Issuer, Interstar 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, Interstar or the Trust Manager, as
the case may be, within the meaning of Section 15 of the Securities Act.
-18-
(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 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, Interstar 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,
Interstar 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, Interstar 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). In addition, nothing in this
Section 7 shall require the Trust Manager or Interstar to indemnify and hold
harmless the Underwriters from any losses, claims, damages or liabilities
arising out of or based on information contained in or omitted from the
information set forth in the Prospectus under the heading "Description of the
US$ Notes - Currency Swap Provider". 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, Interstar, 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,
Interstar 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, Interstar 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,
Interstar, 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), Interstar and
the Trust
-19-
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 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, Interstar 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 severally, in
proportion to their respective 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, Interstar 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, Interstar 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, Interstar 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;
-20-
(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;
(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, Interstar 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) Interstar 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 Interstar'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, Interstar'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, Interstar and the Trust Manager agree with the
Underwriters that Interstar 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
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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) Interstar 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.
(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, Interstar
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
-22-
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 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, Interstar, as Seller and as 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 Interstar or the Trust Manager in Section 2(b) or
any failure to perform any of the undertakings or obligations of the
Issuer, Interstar 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.
-23-
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:
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 Interstar 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.
-24-
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 2000 (the "FSMA"). Each
Underwriter represents and agrees with respect to itself that the Offered Notes
have only been offered or sold and, prior to the expiry of six months from the
Closing Date, 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, 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 FSMA 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 FSMA, will only be communicated or caused to
be communicated in circumstances when Section 21 of FSMA does not apply,
including to persons authorized under FSMA or to persons qualifying 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 or to any other person to whom an invitation or
inducement to enter into investment activity of this type may otherwise lawfully
be communicated.
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 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;
-25-
(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 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 (the issue date
being the date when the Underwriter has an unconditional obligation to
offer the Notes for sale under this Agreement) 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, the name of
the program 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, or suspected, by the Underwriters to be
an associate of any other person covered by this clause 17(b)(ii)(B);
or
(C) as a result of being accepted for listing on a stock
exchange where the Issuer has previously entered into an agreement
with the Underwriter in relation to the placement of the Offered
Notes requiring the Issuer to seek such listing; or
(D) to at least 100 persons who it would be reasonable to
regard as either having acquired instruments similar to the Offered
Notes in the past or as likely to be interested in acquiring
Offered Notes.
-26-
18. Consent to Jurisdiction; appointment of Agent to Accept Service of
Process.
(a) Each of the Issuer, Interstar 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, Interstar 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, Interstar
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, Interstar 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, Interstar and the Trust Manager agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Underwriter
against such loss.
19. Foreign Taxes. All payments to be made by Interstar, 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 Interstar, the Trust Manager or the Issuer, as applicable, is
compelled by law to deduct or withhold such taxes duties or charges. In that
event, Interstar, 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, Interstar 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,
Interstar or the Trust Manager, as applicable, to the Payee and (b) if positive
by the payee to the Issuer, Interstar or the Trust Manager, as applicable. The
foregoing indemnity shall constitute a separate and independent obligation of
the Issuer, Interstar or the Trust Manager or
-27-
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.
21. Compliance with Applicable Securities Laws. Each Underwriter
acknowledges that no representation is made by the Issuer, the Trust Manager or
Interstar that any action has been or will be taken by them in any jurisdiction
outside the United States to file the Prospectus or any other offering material
for the Offered Notes with any governmental agency. Each Underwriter (severally
and not jointly) represents and warrants that it will comply with all applicable
securities laws and regulations in each jurisdiction in which it purchases,
offers, sells or delivers the Offered Notes or distributes the Prospectus.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-28-
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, Interstar, 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$o
Class B1 Notes
--------------
Underwriters Principal Amount of
------------ Class B1 Notes
--------------
Barclays Capital Inc. US$o