Exhibit 1.1
SECURITISATION MANAGEMENT PTY LTD
INTERSTAR MILLENNIUM SERIES 2004-2G TRUST
(the "Trust")
US$[______] Class A Mortgage Backed Floating Rate Notes
US$[______] Class AB Mortgage Backed Floating Rate Notes
US$[______] Class B Mortgage Backed Floating Rate Notes
UNDERWRITING AGREEMENT
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Barclays Capital Inc.
200 Park Avenue
New York, New York 10166
Deutsche Bank Securities Inc.
60 Wall Street, 19th floor
New York, New York 10005
Ladies and Gentlemen:
1. Introductory. Perpetual Trustees Victoria Limited (ABN 47 004 027 258),
a limited liability public company under the Corporations Act 2001 of Australia,
in its capacity as trustee of the Trust (the "Issuer"), at the direction of
Interstar Securitisation Management Pty Limited (ABN 56 100 346 898), in its
capacity as manager (the "Trust Manager") of the Trust, proposes to sell to J.P.
Morgan Securities Inc. Barclays Capital Inc. and Deutsche Bank Securities Inc.
(the "Underwriters") US$[______] principal amount of Class A Mortgage Backed
Floating Rate Notes due 2036 (the "Class A Notes"), US$[______] principal amount
of Class AB Mortgage Backed Floating Rate Notes due 2036 (the "Class AB Notes")
and US$[______] principal amount of Class B Mortgage Backed Floating Rate Notes
due 2036 (the "Class B Notes" and together with the Class A Notes and the Class
AB Notes, the "Offered Notes"). 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 [______]
[ ], [___] among the Issuer,
1
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
December 2, 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 became trustee of the Millennium Series 2004-2G Trust pursuant to the
terms of the Master Trust Deed (the "Notice of Creation of Trust") given by the
Trust Manager and Interstar on December 31, 2003, the Series Notice (the "Series
Notice") to be entered into by, among others, the Issuer, the Trust Manager,
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
the Commonwealth of 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
2
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 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
3
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 an Offshore
Associate of the Issuer (as defined in Section 17)(other than in the
capacity of a dealer, manager or underwriter in relation to the placement
of the Offered Notes or in the capacity of a clearing house, custodian,
funds manager or responsible entity of a registered scheme).
(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.
(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.
4
(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.333-112782), 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, 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
5
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 specifically
identified by that Underwriter 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 (the "Exchange
Act"), 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 (a) has been duly
incorporated and is validly existing as a limited liability public company
under the laws of the Commonwealth of Australia, (b) 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 (c)
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.
(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
6
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 application 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 application relating to or affecting creditors' rights and to
general equitable principles.
(ix) Neither Interstar nor the Trust Manager is in default under its
constitution or any other material agreement.
(x) 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(m) 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.
(xi) 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.
(xii) 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.
(xiii) 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.
7
(xiv) 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.
(xv) 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.
(xvi) 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.
(xvii) 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").
(xviii) Subject to compliance with Section 128F of the Income Tax
Assessment Act 1936 of the Commonwealth of Australia, 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.
(xix) 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.
(xx) Ernst & Young are independent public accountants with respect to
Interstar and the Trust Manager as required by the Securities Act.
(xxi) The compliance by each of Interstar and the Trust Manager with
all of the provisions of 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 material
agreement or instrument to which it is a party or by which it is bound,
nor will such action result in any violation of the provisions of its
constitution (in its corporate capacity), or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over it or any of its assets.
8
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 A Notes shall be so purchased at a price equal to 100%
of the principal amount of the Class A Notes, the Class AB Notes shall be so
purchased at a price equal to 100% of the principal amount of the Class AB Notes
and the Class B Notes shall be so purchased at a price equal to 100% of the
principal amount of the Class B Notes (collectively, the "Selling Price").
(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 A Notes of [______]% of the principal amount of the Class A
Notes;
(ii) of a selling concession of an amount equal to [______]% of the
principal amount of the Class A Notes;
(iii) of a combined management and underwriting commission in respect
of the Class AB Notes of [______]% of the principal amount of the Class AB
Notes;
(iv) of a selling concession of an amount equal to [______]% of the
principal amount of the Class AB Notes;
(v) of a combined management and underwriting commission in respect of
the Class B Notes of [______]% of the principal amount of the Class B
Notes; and
(vi) of a selling concession of an amount equal to [______]% of the
principal amount of the Class B Notes.
The amounts referred to in Sections 3(b)(i), (ii), (iii), (iv), (v) and (vi)
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 [______], 2004, 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
9
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.
(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 Trust 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 Underwriters, 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 Underwriters, make
10
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 Underwriters promptly of any such filing
pursuant to Rule 424(b).
(ii) The Trust Manager will advise the Underwriters 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 Underwriters' consent. The Trust Manager will also advise the
Underwriters 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 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(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 Underwriters 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 Underwriters' 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.
11
(vi) The Trust Manager will assist the Underwriters 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 Underwriters 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 Underwriters 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
Underwriters 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 Underwriters:
(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
12
(D) from time to time such other information concerning the
Trust, the Trust Manager or Interstar as the Underwriters may
reasonably request.
(xiv) To the extent, if any, that any of the ratings provided with
respect to the Class A Notes, the Class AB Notes or the Class B 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 Underwriters 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 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 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.
(c) 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
13
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.
(d) 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.
(e) On or before the Closing Date you shall have received opinions, in form
and substance satisfactory to you, dated the Closing Date of:
(i) McKee Nelson LLP, 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 and the
Note Trustee;
(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.
(f) 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.
(g) 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.
14
(h) 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 Underwriters, 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 A Notes, the Class AB Notes
or the Class B Notes or any debt securities of any of Interstar, the Trust
Manager, the Issuer 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 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 the
over-the-counter market, 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, except where such suspension occurs as a
result of technical or administrative difficulties which are promptly
resolved;
(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
Underwriters, 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.
(i) You shall have received evidence satisfactory to you that the Class A
Notes shall be rated AAA by S&P and Aaa by Moody's, the Class AB Notes shall be
rated AAA by S&P and Aa1 by Moody's and the Class B Notes having been assigned a
rating of AA- by S&P and Aa3 by Moody's 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
15
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.
(j) You shall have received a solvency certificate of the Seller dated the
Closing Date and signed by a duly authorized officer.
(k) 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.
(l) 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;
(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, 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.
(m) You shall have received a letter, dated the Closing Date and in form
and substance reasonably satisfactory to the Underwriters, of Ernst & Young
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 and the Prospectus (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.
16
(n) The Underwriters may, at their discretion and upon such terms as they
think fit, waive compliance with the whole or any part of this Section 6 (other
than Section 6(a)).
7. Indemnification and Contribution.
(a) The Issuer will indemnify and hold harmless each Underwriter, its
affiliates, directors, officers and each person who controls such Underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any losses, claims, damages or liabilities, joint
or several, 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.
(b) Each of Interstar and the Trust Manager will, jointly and severally,
indemnify and hold harmless each Underwriter, its affiliates, directors,
officers and each person who controls such Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any losses, claims, damages or liabilities, joint or several, 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, unless
such failure to deliver the
17
Prospectus was as a result of non-compliance by Interstar and the Trust Manager
with the provisions of Section 5(b)(i), (ii), (iii), (iv) and (x) hereof;
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 any of such documents in reliance upon
and in conformity with the Underwriter Information or the Information as set
forth under "Description of the US$ Notes -- The Currency Swaps -- Currency
Swap Provider".
(c) Each Underwriter will, severally and not jointly, indemnify and hold
harmless each of the Issuer and the Trust Manager, its affiliates, its directors
and officers and each person, if any, who controls such company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange 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 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
18
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.
(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 benefits received by the Issuer, Interstar or the
Trust Manager on the one hand and the Underwriters on the other shall be deemed
to be in the same respective proportions as the net proceeds (before deducting
expenses) received by the Issuer, Interstar and the Trust Manager from the sale
of the Offered Notes and the total underwriting discounts and commissions
received by the Underwriters in connection therewith, in each case as set forth
in the table on the cover of the Prospectus, bear to the aggregate offering
price of the Offered Notes. 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
19
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 underwriting discounts and commissions
received by such Underwriter with respect to the offering of the Offered Notes
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(h), Interstar 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 defaulting Underwriter agreed but failed to purchase
does not exceed 10% of the total principal amount of the Offered Notes, the
Underwriters 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 the
Underwriters 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.
20
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 Underwriters 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;
(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. J.P.
Morgan Securities Inc. and Deutsche Bank Securities 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.
21
(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 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 Underwriters 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 Underwriters, 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
22
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 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
23
accordance with a proper instruction or direction of the Voting Mortgagees (as
defined in the Series Notice) 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
Underwriters 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 Underwriters 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 Underwriters; or
(iii) if, in the Underwriters' 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:
Perpetual Trustees Victoria Limited
Level 7, 9 Castlereagh Street
Sydney, NSW 2000
Attention: Senior Manager, Securitisation Services
Facsimile: +61 2 9221 7870
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:
24
Interstar Securities (Australia) Pty Limited
Level 28, 367 Collins Street
Melbourne, Victoria 3000
Attention: Managing Director
Facsimile: + 61 3 9621 2368
if to the Underwriters to them at:
Barclays Capital Inc.
200 Park Avenue
New York, New York 10166
U.S.A.
Attention: Syndicate Desk
Facsimile: +1 212 412 7305
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
U.S.A.
Attention: ABS Syndicate Desk
Facsimile: +1 212 834 6081
Deutsche Bank Securities Inc.
60 Wall Street, 19th floor
New York, New York 10005
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 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
25
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 severally 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
invite 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; and
(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.
(b) Each Underwriter further severally 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, employees of the Underwriter directly 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 will be, or will later
be acquired, directly or indirectly, by an Offshore Associate of the Issuer
(as identified on a list furnished by the Trust Manager to each
Underwriter), other than in the capacity of a dealer, manager, or
underwriter in relation to the placement of the Offered Notes or in the
capacity of a clearing house, custodian, funds manager or responsible
entity of a registered scheme; 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
26
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 employees of such
Underwriter directly involved in the sale of the Offered Notes to be an
associate of any other person covered by this clause 17(b)(ii)(B); or
(C) by such Underwriter offering those Offered Notes for sale 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) by such Underwriter offering those Offered Notes for sale 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.
In this Agreement, an "Offshore Associate of the Issuer" means an associate
(within the meaning of section 128F of the Income Tax Assessment Act 1936
of the Commonwealth of Australia) of the Issuer that is either a
non-resident of Australia that does not acquire the Offered Notes in
carrying on a business at or through a permanent establishment in Australia
or, alternatively, a resident of Australia that acquires the Offered Notes
in carrying on a business at or through a permanent establishment outside
Australia.
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
27
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 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.
28
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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:
[Underwriting Agreement Signature Page]
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof
BARCLAYS CAPITAL INC.
By
---------------------------------
Name:
Title:
J.P. MORGAN SECURITIES INC.
By
---------------------------------
Name:
Title:
Deutsche Bank Securities Inc.
By
---------------------------------
Name:
Title:
[Underwriting Agreement Signature Page]
SCHEDULE A
Class A Notes
Underwriters Principal Amount of
- ------------ Class A Notes
-------------
Barclays Capital Inc. US$[______]
J.P. Morgan Securities Inc. US$[______]
Deutsche Bank Securities Inc. US$[______]
Class AB Notes
Underwriters Principal Amount of
- ------------ Class AB Notes
--------------
Barclays Capital Inc. US$[______]
J.P. Morgan Securities Inc. US$[______]
Deutsche Bank Securities Inc. US$[______]
Class B Notes
Underwriters Principal Amount of
- ------------ Class B Notes
-------------
Barclays Capital Inc. US$[______]
J.P. Morgan Securities Inc. US$[______]
Deutsche Bank Securities Inc. US$[______]