Exhibit 1.1
UNDERWRITING AGREEMENT
$____________________
WESTPAC SECURITIES ADMINISTRATION LIMITED
SERIES 0000-0X XXX XXXXX
X.X.x ________ Class A Mortgage Backed Floating Rate Notes
U.S.$ ________ Class B Mortgage Backed Floating Rate Notes
UNDERWRITING AGREEMENT
----------------------
June __, 1998
X.X. Xxxxxx Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
As Representatives of the
Several Underwriters Listed
in Schedule I
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Westpac Securities Administration Limited, a limited liability public
company under the Corporations Law of New South Wales, Australia in its capacity
as trustee of the Series 0000-0X XXX Xxxxx (the "Issuer Trustee") proposes to
sell to the several Underwriters listed in Schedule I hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), $___________ principal amount of Class A Mortgage Backed
Floating Rate Notes (the "Class A Notes") and $________ principal amount of
Class B Mortgage Backed Floating Rate Notes (the "Class B Notes" and together
with the Class A Notes, the "Notes") issued by the Series 0000-0X XXX Xxxxx (the
"Trust"). Each Note will be secured by the assets of the Trust. The assets of
the Trust include, among other things, a pool of variable and fixed rate
residential housing loans (the "Housing Loans") originated or acquired by
Westpac Banking Corporation ("Westpac") including all monies at any time paid or
payable thereon or in respect thereof from, on and after _______________ (the
"Cut-Off Date") with respect to payments of principal and after the Closing Date
(as defined herein) with respect to payments of interest, rights under certain
insurance policies with respect to the Housing Loans, the Collections Account
and the rights of the Issuer Trustee under the Basic Documents. The Series
1998-1G WST Trust will be created pursuant to the Master Trust Deed, dated
February 14, 1997 (the "Master Trust Deed") and a series notice, to be
dated ________ (the "Series Notice"), each between the Issuer Trustee and
Westpac Securitization Management Pty Limited (the "Trust Manager"), which sets
forth specific provisions regarding the Trust and details the provisions of the
Notes. The Note Trust Deed, dated June ___, 1998 (the "Note Trust Deed") by
and among the Issuer Trustee, the Trust Manager and Xxxxxx Guaranty Trust
Company of New York (the "Note Trustee") provides for the issuance and
registration of the Notes in accordance with the terms and conditions attached
thereto. Payments in respect of the Class B Notes are, to the extent specified
in the Note Trust Deed, subordinated to the rights of the holders of the Class A
Notes. The Mortgage Company Pty Limited will act as servicer (the "Servicer")
of the Housing Loans. The Trust Manager and Westpac are each a "Westpac Party"
and collectively are referred to herein as the "Westpac Parties."
The Trust Manager has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement, including a prospectus, relating to the Notes. The registration
statement as amended at the time when it became effective, or, if a
post-effective amendment is filed with respect thereto, as amended by such
post-effective amendment at the time of its effectiveness, including in each
case information (if any) deemed to be part of the registration statement at the
time of effectiveness pursuant to Rule 430A under the Securities Act, is
referred to in this Agreement as the "Registration Statement", and the
prospectus in the form first used to confirm sales of Notes is referred to in
this Agreement as the "Prospectus".
When used in this Agreement, "Basic Documents" shall mean the Master Trust
Deed, the Series Notice, the Servicing Agreement, the Notes, the Security Trust
Deed, the Note Trust Deed, the Swap Agreements and the Agency Agreement and any
other contract, agreement or instrument which is or is to be entered into by any
of the Westpac Parties or the Issuer Trustee on the Closing Date or otherwise in
connection with any of the foregoing or this Agreement. To the extent not
defined herein, capitalized terms used herein have the meanings assigned to such
terms in the Prospectus.
In this Agreement, a reference to the Issuer Trustee is a reference to the
Issuer Trustee in its capacity as trustee of the Series 0000-0X XXX Xxxxx only,
and in no other capacity. Any reference to the assets, business, property or
undertaking of the Issuer Trustee is a reference to the Issuer Trustee in that
capacity only.
The Westpac Parties and the Issuer Trustee hereby agree with the
Underwriters as follows:
1. PURCHASE AND SALE. The Issuer Trustee, at the direction of the Trust
Manager, agrees to sell the Notes to the several Underwriters as hereinafter
provided, and each Underwriter, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
agrees to purchase, severally and not jointly,
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from the Issuer Trustee the respective principal amount of Notes set forth
opposite such Underwriter's name in Schedule I hereto at a price equal to ___%
of the principal amount of the Class A Notes plus accrued interest, if any, on
the principal amount thereof at the Interest Rate of the Class A Notes from
______________, 1998 to the Closing Date and __% of the principal amount of the
Class B Notes plus accrued interest, if any, on the principal amount thereof at
the Interest Rate of the Class B Notes from ___________, 1998 to the Closing
Date.
2. OFFERING. The Westpac Parties and the Issuer Trustee understand that
the Underwriters intend (i) to make a public offering of their respective
portions of the Notes as soon after (A) the Registration Statement has become
effective and (B) the parties hereto have executed and delivered this Agreement
as in the judgment of the Representatives is advisable and (ii) initially to
offer the Notes upon the terms set forth in the Prospectus.
3. DELIVERY AND PAYMENT. Payment for the Notes shall be made by wire
transfer in immediately available funds to the account specified by the Issuer
Trustee to the Representatives no later than noon the Business Day (as defined
below) prior to the Closing Date (as defined below), at 10:00 a.m., New York
City time on June __, 1998, or at such other time on the same or such other
date, not later than the fifth Business Day thereafter, as the Representatives
and the Trust Manager may agree upon in writing. The time and date of such
payment are referred to herein as the "Closing Date". As used herein, the term
"Business Day" means any day other than a day on which banks are permitted or
required to be closed in New York City.
Payment for the Notes shall be made against delivery to the nominee of The
Depository Trust Company ("DTC") for the account of the Representatives [for the
respective accounts of the several Underwriters] of one or more book-entry notes
(the "Book-Entry Notes") representing the Notes, with any transfer taxes payable
in connection with the transfer to the Underwriters of the Notes duly paid by
the Trust Manager. The Book-Entry Notes will be made available for inspection
by the Representatives at the office of [the Note Trustee, address] [X.X. Xxxxxx
Securities Inc. at the address set forth above] not later than 1:00 P.M., New
York City time, on the Business Day prior to the Closing Date.
4. REPRESENTATIONS AND WARRANTIES OF THE WESTPAC PARTIES AND THE ISSUER
TRUSTEE.
I. The Issuer Trustee represents and warrants to each Underwriter that:
(a) since ____________ there has been no material adverse change or
any development involving a prospective material adverse change in the
condition (financial or otherwise) of the Issuer Trustee and its material
subsidiaries except as disclosed in the Prospectus, which is material in
the context of the Issuer Trustee performing its obligations and duties
under the Notes and each Basic Document to which it is or is to be a party;
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(b) the Issuer Trustee is a corporation duly incorporated and
existing under the laws of New South Wales; it is lawfully qualified and
holds all Authorizations (as defined in the Master Trust Deed) necessary to
carry on its business as described in the Prospectus and to issue the Notes
and to act as required by each Basic Document to which it is or is to be a
party and by law to comply with the requirements of any legislation and
subordinate legislation (including, without limitation and to the extent
relevant, any Consumer Credit Legislation (as defined in the Master Trust
Deed) and no other thing is required to be done (including without
limitation the making of any filing or registration) in order to issue the
Notes or to execute and act as required by each Basic Document to which it
is to be a party;
(c) this Agreement has been duly authorized, executed and delivered
by the Issuer Trustee;
(d) the Notes have been duly authorized, and, when issued, delivered
and paid for pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and binding
obligations of the Issuer Trustee, entitled to the benefits provided by the
Note Trust Deed and the Security Trust Deed, subject to general principles
affecting creditors rights and general principles of equity. The Basic
Documents have been duly authorized, and, when executed and delivered by
the Issuer Trustee and, in the case of the Basic Documents, the other
parties thereto, each of the Basic Documents will constitute a legal, valid
and binding obligation of the Issuer Trustee, enforceable against the
Issuer Trustee in accordance with its terms, subject as to enforceability
to applicable bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation or other similar laws affecting the enforcement
of creditors rights generally and to general equitable principles;
(e) the Issuer Trustee is not, nor with the giving of notice or lapse
of time or both would be, in violation of or in default under, its Articles
of Association or any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which it is a party or by which it or any
of its properties is bound, except for violations and defaults which
individually and in the aggregate would not have a material adverse effect
on the transactions contemplated herein or in the Basic Documents; the
issue and sale of the Notes and the performance by the Issuer Trustee of
all of the provisions of its obligations under the Notes, the Basic
Documents and this Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Issuer Trustee is a party or by which the Issuer
Trustee is bound or to which any of the property or assets of the Trust is
subject, nor will any such action result in any violation of the provisions
of the Articles of Association of the Issuer Trustee or any applicable law
or statute or any order, rule or regulation of any court or governmental
agency or
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body having jurisdiction over the Issuer Trustee, or any of its properties;
and no consent, approval, authorization, order, license, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Notes or the consummation by the
Issuer Trustee of the transactions contemplated by this Agreement or the
Basic Documents, except such consents, approvals, authorizations, orders,
licenses, registrations or qualifications as have been obtained under the
Securities Act, the Trust Indenture Act and as may be required under state
securities or Blue Sky Laws in connection with the purchase and
distribution of the Notes by the Underwriters;
(f) other than as set forth or contemplated in the Prospectus, there
are no legal or governmental investigations, actions, suits or proceedings
pending or, to the knowledge of the Issuer Trustee, threatened against or
affecting the Issuer Trustee or the Trust or, to which the Issuer Trustee
is or may be a party or to which the Issuer Trustee or any property of the
Issuer Trustee is or may be the subject, (i) asserting the invalidity of
this Agreement or of any of the Basic Documents in relation to the Issuer
Trustee, (ii) seeking to prevent the issuance of the Notes or the
consummation of any of the transactions contemplated by this Agreement or
any of the Basic Documents by the Issuer Trustee, (iii) that may adversely
affect the federal or state income, excise, franchise or similar tax
attributes of the Notes, (iv) that could materially and adversely affect
the performance of the Issuer Trustee of its obligations under, or the
validity or enforceability of, this Agreement or any of the Basic Documents
by the Issuer Trustee or (v) which could individually or in the aggregate
reasonably be expected to have a material adverse effect on the interests
of the holders of the Notes or the marketability of the Notes;
(g) the representations and warranties of the Issuer Trustee
contained in the Basic Documents are true and correct in all material
respects;
(h) Coopers & Xxxxxxx L.L.P. are independent public accountants with
respect to the Issuer Trustee within the meaning of the Securities Act;
(i) to the Issuer Trustee's knowledge, no event has occurred which
would entitle the Trust Manager to direct the Issuer Trustee to retire as
trustee of the Trust under clause 24 of the Master Trust Deed;
(j) the Prospectus complies with the Listing Rules of the London
Stock Exchange Limited (the "London Stock Exchange"), and any preliminary
prospectus and Prospectus (in the case of the Prospectus, as of the date
hereof and in the case of any preliminary prospectus, as of its date) (i)
contains all the information required by section 146 of the Financial
Services Act; and (ii) in the context of the issue of the Notes, is
accurate in all material respects and does not contain any untrue statement
of a material fact or omit to state any material fact necessary to make the
information therein, in the light of the circumstances under which it is
given, not misleading and
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all reasonable enquiries have been made to ascertain the accuracy of all
such information.
(k) the Issuer Trustee has not taken any corporate action nor (to the
best of its knowledge and belief) have any other steps been taken or legal
proceedings been started or threatened against the Issuer Trustee for its
winding-up, dissolution or reorganization or for the appointment of a
receiver, receiver and manager, administrator, provisional liquidator or
similar officer of it or of any or all of its assets;
(l) subject to compliance with Section 128F of the Income Tax
Assessment Act (1936) (the "Tax Act"), no stamp or other duty is assessable
or payable in, and no withholding or deduction for any taxes, duties,
assessments or governmental charges of whatever nature is imposed or made
for or on account of any income, registration, transfer or turnover taxes,
customs or other duties or taxes of any kind, levied, collected, withheld
or assessed by or within, the Commonwealth of Australia or any sub-division
of or authority therein or thereof having power to tax in such
jurisdiction, in connection with the authorization, execution or delivery
of the agreements to which it is to be a party or with the authorization,
execution, issue, sale or delivery of the Notes and the performance of the
Issuer Trustee's obligations under the agreements to which it is to be a
party and the Notes;
(m) the Notes and the obligations of the Trust Manager under the Note
Trust Deed will be secured (pursuant to the Security Trust Deed) by a first
floating charge over Mortgages (which expression in this agreement has the
meaning given to it in the Sale Notice) having an aggregate principal
amount (including, where applicable, the amount of any further advances
made prior to the Closing Date) at the time of the issue of the Notes of
not less than US$[ ] (on the basis of the exchange rate for A$
against US$ applicable under the Currency Swap Agreement) together with all
relative rights and interests; and
(n) no event has occurred or circumstances arisen which, had the
Notes already been issued, would (whether or not with the giving of notice
and/or the passage of time and/or the fulfillment of any other requirement)
constitute an event described under "Events of Default; Rights Upon Events
of Default" in the Prospectus.
II. The Trust Manager represents and warrants to each Underwriter that:
(a) no order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary
prospectus filed as part of the Registration Statement as originally filed
or as part of any amendment thereto, or filed pursuant to Rule 424 under
the Securities Act, complied when so
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filed in all material respects with the Securities Act, and did not contain
an 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,
in the light of the circumstances under which they were made, not
misleading; provided that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Trust Manager in
writing by such Underwriter through the Representatives expressly for use
therein;
(b) the Registration Statement has been declared effective under the
Securities Act by the Commission; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of the
Trust Manager, threatened by the Commission; and the Registration Statement
and Prospectus (as amended or supplemented if the Trust Manager shall have
furnished any amendments or supplements thereto) comply, or will comply, as
the case may be, in all material respects with the Securities Act and the
Trust Indenture Act of 1939, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Trust Indenture Act") and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the date of the
Prospectus and any amendment or supplement thereto, contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and the Prospectus, as amended or supplemented, if applicable,
at the Closing Date will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; except that the foregoing representations and warranties shall
not apply to (i) that part of the Registration Statement which constitutes
the Statement of Eligibility and Qualification (Form T-1) of the Note
Trustee under the Trust Indenture Act, and (ii) statements or omissions in
the Registration Statement or the Prospectus made in reliance upon and in
conformity with information relating to any Underwriter furnished to the
Trust Manager in writing by such Underwriter through the Representatives
expressly for use therein;
(c) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, business,
prospects, management, financial position, stockholders' equity or results
of operations of the Trust Manager, taken as a whole, otherwise than as set
forth or contemplated in the Prospectus;
(d) the Trust Manager is a corporation duly incorporated and validly
existing under the Corporations Law of the Commonwealth of Australia, the
Trust Manager has the power and authority (corporate and other) to own its
properties and
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conduct its business as described in the Prospectus and to enter into and
perform its obligations under this Agreement and the Basic Documents to
which it is a party and carry out the transactions contemplated by such
Basic Documents; the Trust Manager has been duly qualified or licensed for
the transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification or licensing, other than
where the failure to be so qualified or licensed or in good standing would
not have a material adverse effect on the transactions contemplated herein
or in the Basic Documents;
(e) this Agreement has been duly authorized, executed and delivered
by the Trust Manager;
(f) the Basic Documents have been duly authorized, and upon
effectiveness of the Registration Statement, the Note Trust Deed will have
been duly qualified under the Trust Indenture Act and, when executed and
delivered by the Trust Manager and, in the case of the Basic Documents, the
other parties thereto, each of the Basic Documents will constitute a legal,
valid and binding obligation of the Trust Manager, enforceable against the
Trust Manager in accordance with its terms, subject as to enforceability to
applicable bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation or other similar laws affecting the enforcement
of creditors rights generally and to general equitable principles; and the
Notes and the Basic Documents each will conform to the descriptions thereof
in the Prospectus;
(g) the Trust Manager is not, nor with the giving of notice or lapse
of time or both would be, in violation of or in default under, its Articles
and Memorandum of Association or any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which it is a party or
by which it or any of its properties is bound, except for violations and
defaults which individually and in the aggregate would not have a material
adverse effect on the transactions contemplated herein or in the Basic
Documents; the issue and sale of the Notes and the performance by the
Issuer Trustee of all of the provisions of its obligations under the Notes,
the Basic Documents and this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Trust Manager is a party or by
which the Trust Manager is bound or to which any of the property or assets
of the Trust Manager is subject, nor will any such action result in any
violation of the provisions of the Articles and Memorandum of Association
of the Trust Manager or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Trust Manager, or any of its properties; and no consent, approval,
authorization, order, license, registration or qualification of or with any
such court or governmental agency or body is required
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for the issue and sale of the Notes or the consummation by the Trust
Manager of the transactions contemplated by this Agreement or the Basic
Documents, except such consents, approvals, authorizations, orders,
licenses, registrations or qualifications as have been obtained under the
Securities Act, the Trust Indenture Act and as may be required under state
securities or Blue Sky Laws in connection with the purchase and
distribution of the Notes by the Underwriters;
(h) other than as set forth or contemplated in the Prospectus, there
are no legal or governmental investigations, actions, suits or proceedings
pending or, to the knowledge of the Trust Manager, threatened against or
affecting the Trust Manager or its properties or, to which the Trust
Manager is or may be a party or to which the Issuer Trustee or any property
of the Trust Manager is or may be the subject, (i) asserting the invalidity
of this Agreement or of any of the Basic Documents, (ii) seeking to prevent
the issuance of the Notes or the consummation of any of the transactions
contemplated by this Agreement or any of the Basic Documents, (iii) that
may adversely affect the federal or state income, excise, franchise or
similar tax attributes of the Notes, (iv) that could materially and
adversely affect the performance of the Trust Manager of its obligations
under, or the validity or enforceability of, this Agreement or any of the
Basic Documents or (v) which could individually or in the aggregate
reasonably be expected to have a material adverse effect on the interests
of the holders of the Notes or the marketability of the Notes; and there
are no statutes, regulations, contracts or other documents that are
required to be filed as an exhibit to the Registration Statement or
required to be described in the Registration Statement or the Prospectus
which are not filed or described as required;
(i) the representations and warranties of the Trust Manager contained
in the Basic Documents are true and correct in all material respects;
(j) Coopers & Xxxxxxx L.L.P. are independent public accountants with
respect to the Trust Manager within the meaning of the Securities Act;
(k) the Trust Manager owns, possesses or has obtained all
Authorizations (as defined in the Master Trust Deed), licenses, permits,
certificates, consents, orders, approvals and other authorizations from,
and has made all declarations and filings with, all federal, state, local
and other governmental authorities (including foreign regulatory agencies),
all self-regulatory organizations and all courts and other tribunals,
domestic or foreign, necessary to own the Housing Loans and to perform its
obligations under this Agreement and the Basic Documents, and the Trust
Manager has not received any actual notice of any proceeding relating to
revocation or modification of any such Authorization, license, permit,
certificate, consent, order, approval or other authorization; and the Trust
Manager is in compliance with all laws and regulations necessary for the
performance of its obligations under this Agreement and the Basic
Documents;
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(l) no event has occurred which would entitle the Trust Manager to
direct the Issuer Trustee to retire as trustee of the Trust under clause 24
of the Master Trust Deed;
(m) the Prospectus complies with the Listing Rules of the London
Stock Exchange Limited (the "London Stock Exchange"), and any preliminary
prospectus and Prospectus (in the case of the Prospectus, as of the date
hereof and in the case of any preliminary prospectus, as of its date)
contains all the information required by section 146 of the Financial
Services Act;
(n) the Trust Manager has not taken any corporate action nor (to the
best of its knowledge and belief) have any other steps been taken or legal
proceedings been started or threatened against the Trust Manager for its
winding-up, dissolution or reorganization or for the appointment of a
receiver, receiver and manager, administrator, provisional liquidator or
similar officer of it or of any or all of its assets;
(o) subject to compliance with Section 128F of the Income Tax
Assessment Act (1936), no stamp or other duty is assessable or payable in,
and no withholding or deduction for any taxes, duties, assessments or
governmental charges of whatever nature is imposed or made for or on
account of any income, registration, transfer or turnover taxes, customs or
other duties or taxes of any kind, levied, collected, withheld or assessed
by or within, the Commonwealth of Australia or any sub-division of or
authority therein or thereof having power to tax in such jurisdiction, in
connection with the authorization, execution or delivery of the agreements
to which it is to be a party or with the authorization, execution, issue,
sale or delivery of the Notes and the performance of the Trust Manager's
obligations under the agreements to which it is to be a party and the
Notes;
(p) the Notes and the obligations of the Trust Manager under the Note
Trust Deed will be secured (pursuant to the Security Trust Deed) by a first
floating charge over Mortgages (which expression in this agreement has the
meaning given to it in the Sale Notice) having an aggregate principal
amount (including, where applicable, the amount of any further advances
made prior to the Closing Date) at the time of the issue of the Notes of
not less than US$[ ] (on the basis of the exchange rate for A$
against US$ applicable under the Currency Swap Agreement) together with all
relative rights and interests; and
(q) no event has occurred or circumstances arisen which, had the
Notes already been issued, would (whether or not with the giving of notice
and/or the passage of time and/or the fulfillment of any other requirement)
constitute an event described under "Events of Default; Rights Upon Events
of Default" in the Prospectus.
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III. Westpac represents and warrants to each Underwriter that:
(a) Westpac is a corporation organized under the laws of New South
Wales;
(b) this Agreement has been duly authorized, executed and delivered
by Westpac;
(c) the representations and warranties of Westpac contained in the
Basic Documents are true and correct in all material respects;
(d) since ___________ there has been no material adverse change or
any development involving a prospective material adverse change in the
condition (financial or otherwise) of Westpac or the Westpac Group; and
(e) Westpac has good and marketable title to the Housing Loans free
and clear of all liens, encumbrances and defects, except such as are
described or referred to in the Prospectus, and by assignment and delivery
of each of the Housing Loans to the Trust as of the Closing Date, the Trust
Manager will transfer title in the Housing Loans to the Trust, subject to
no prior lien, mortgage, security interest, pledge, adverse claim, change
or encumbrance;
5. COVENANTS AND AGREEMENTS. (I) The Trust Manager covenants and
agrees with each of the several Underwriters as follows:
(a) to use its best efforts to cause the Registration Statement to
become effective at the earliest possible time and, if required, to file
the final Prospectus with the Commission within the time periods specified
by Rule 424(b) and Rule 430A under the Securities Act, and to furnish
copies of the Prospectus to the Underwriters in New York City prior to
10:00 a.m., New York City time, on the Business Day next succeeding the
date of this Agreement in such quantities as the Representatives may
reasonably request;
(b) to deliver, at the expense of the Trust Manager, to the
Representatives and to Xxxxx & Xxxx LLP, counsel to the Underwriters,
signed copies of the Registration Statement (as originally filed) and each
amendment thereto, in each case including exhibits, and to each other
Underwriter a conformed copy of the Registration Statement (as originally
filed) and each amendment thereto, in each case without exhibits and,
during the period mentioned in paragraph (e) below, to each of the
Underwriters as many copies of the Prospectus (including all amendments and
supplements thereto) as the Representatives may reasonably request;
(c) before filing any amendment or supplement to the Registration
Statement or the Prospectus, whether before or after the time the
Registration
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Statement becomes effective, to furnish to the Representatives a copy of
the proposed amendment or supplement for review and not to file any such
proposed amendment or supplement to which the Representatives reasonably
object;
(d) to advise the Representatives promptly, and to confirm such
advice in writing, (i) when the Registration Statement has become
effective, (ii) when any amendment to the Registration Statement has been
filed or becomes effective, (iii) when any supplement to the Prospectus or
any amendment to the Prospectus has been filed and to furnish the
Representatives with copies thereof, (iv) of any request by the Commission
for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for any additional information, (v) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of any order preventing or suspending the
use of any preliminary prospectus or the Prospectus or the initiation or
threatening of any proceeding for that purpose, (vi) of the occurrence of
any event, within the period referenced in paragraph (e) below, 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 in order to make the statements therein, in light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, and (vii) of the receipt by the Trust Manager of any
notification with respect to any suspension of the qualification of the
Notes for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and to use its best efforts
to prevent the issuance of any such stop order, or of any order preventing
or suspending the use of any preliminary prospectus or the Prospectus, or
of any order suspending any such qualification of the Notes, or
notification of any such order thereof and, if issued, to obtain as soon as
possible the withdrawal thereof;
(e) if, during such period of time after the first date of the public
offering of the Notes as in the opinion of counsel for the Underwriters a
prospectus relating to the Notes is required by law to be delivered in
connection with sales by an Underwriter or a dealer, any event shall occur
as a result of which it is necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if it
is necessary to amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at the expense of the Trust Manager, to
the Underwriters and to the dealers (whose names and addresses the
Representatives will furnish to the Trust Manager) to which Notes may have
been sold by the Representatives on behalf of the Underwriters and to any
other dealers upon request, such amendments or supplements to the
Prospectus as may be necessary so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances when
the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law;
12
(f) to endeavor to qualify the Notes for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representatives
shall reasonably request and to continue such qualification in effect so
long as reasonably required for distribution of the Notes; PROVIDED that
the Trust Manager shall not be required to file a general consent to
service of process in any jurisdiction;
(g) to make generally available to the holders of the Notes and to
the Representatives as soon as practicable an earnings statement covering a
period of at least twelve months beginning with the first fiscal quarter of
the Trust occurring after the effective date of the Registration Statement,
which shall satisfy the provisions of Section 11(a) of the Securities Act
and Rule 158 of the Commission promulgated thereunder;
(h) so long as the Notes are outstanding, to furnish to the
Representatives (i) copies of each certificate, the annual statements of
compliance and the annual independent certified public accountant's
servicing reports furnished to the Trustee pursuant to the Basic Documents
by first class mail as soon as practicable after such statements and
reports are furnished to the Trustee, (ii) copies of each amendment to any
of the Basic Documents, (iii) on each Determination Date or as soon
thereafter as practicable, notice by telex or facsimile to the
Representatives of the Bond Factor as of the related Record Date, (iv)
copies of all reports or other communications (financial or other)
furnished to holders of the Notes, and copies of any reports and financial
statements furnished to or filed with the Commission, any governmental or
regulatory authority or any national securities exchange, and (v) from time
to time such other information concerning the Trust or the Trust Manager as
the Representatives may reasonably request;
(i) to the extent, if any, that the ratings provided with respect to
the Notes by the Rating Agencies are conditional upon the furnishing of
documents or the taking of any other action by the Trust Manager, the Trust
Manager shall use its best efforts to furnish such documents and take any
other such action;
(j) to list the Notes on the London Stock Exchange and to use its
best efforts to maintain such listing for as long as any of the Notes are
outstanding; provided, however, if such listing becomes impossible, each of
the Issuer Trustee and the Trust Manager will use their best efforts to
obtain, and will thereafter use its best efforts to maintain a quotation
for, or listing of, the Notes on such other exchange as is commonly used
for the quotation or listing of debt securities as they may, with the
approval of the Representatives, decide;
(k) to furnish from time to time copies of the Prospectus and any and
all documents, instruments, information and undertakings (in addition to
any already published or lodged with the London Stock Exchange) and publish
all advertisements
13
or other material and to comply with any other requirements of the London
Stock Exchange that may be necessary in order to effect and maintain such
listing;
(l) to assist the Representatives to make arrangements with DTC,
Euroclear and Cedel Bank concerning the issue of the Notes and related
matters;
(m) to not take, or cause to be taken, any action and will not
knowingly permit any action to be taken which it knows or has reason to
believe would result in the Class A Notes or the Class B Notes not being
assigned the respective ratings referred to in Section 6(q) below; and
(n) whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, all fees, costs and
expenses incident to the performance of its obligations hereunder, shall be
paid as set forth in a letter among the Trust Manager and the
Representatives.
(II) The Issuer Trustee covenants and agrees with each of the several
Underwriters as follows:
(a) to use the net proceeds received by the Issuer Trustee from the
sale of the Notes pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
(b) the Issuer Trustee will notify the Representatives promptly after
it becomes actually aware of any matter which would make any of its
representations, warranties, agreements and indemnities herein untrue if
given at any time prior to payment being made to the Issuer Trustee on the
Closing Date and take such steps as may be reasonably requested by the
Representatives to remedy and/or publicize the same;
(c) the Issuer Trustee will pay any stamp duty or other issue,
transaction, value added or similar tax, fee or duty (including court fees)
in relation to the execution of, or any transaction carried out pursuant
to, the Agreements or in connection with the issue and distribution of the
Notes or the enforcement or delivery of this Agreement;
(d) the Issuer Trustee will use all reasonable endeavors to procure
satisfaction on or before the Closing Date of the conditions referred to in
Section 6 below and, in particular (i) the Issuer Trustee shall execute
those of the Basic Documents not executed on the date hereof on or before
the Closing Date, and (ii) the Issuer Trustee will assist the
Representatives to make arrangements with DTC, Euroclear and Cedel Bank
concerning the issue of the Notes and related matters;
14
(e) the Issuer Trustee will procure that the charges created by or
contained in the Security Trust Deed are registered within all applicable
time limits in all appropriate registers;
(f) the Issuer Trustee will perform all its obligations under each of
the Basic Documents to which it is a party which are required to be
performed prior to or simultaneously with closing on the Closing Date;
(g) the Issuer Trustee will not take, or cause to be taken, any action
and will not knowingly permit any action to be taken which it knows or has
reason to believe would result in the Class A Notes or the Class B Notes
not being assigned the respective ratings referred to in Section 6(q)
below; and
(h) the Issuer Trustee will not prior to or on the Closing Date amend
the terms of any Basic Document nor execute any of the Basic Documents
other than in the agreed form without the consent of the Underwriters.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The several
obligations of the Underwriters hereunder are subject to the performance by the
Westpac Parties and the Issuer Trustee of their obligations hereunder and to the
following additional conditions:
(a) the Registration Statement shall have become effective, or if a
post-effective amendment is required to be filed under the Securities Act,
such post-effective amendment shall have become effective, not later than
5:00 P.M., New York City time, on the date hereof; 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 shall have been filed with the Commission 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(a) hereof; and all requests for additional information shall have
been complied with to the satisfaction of the Representatives;
(b) the representations and warranties of the Westpac Parties and the
Issuer Trustee contained herein are true and correct on and as of the
Closing Date as if made on and as of the Closing Date and the
representations and warranties of the Westpac Parties in the Basic
Documents will be true and correct on the Closing Date; and each Westpac
Party and the Issuer Trustee shall have complied with all agreements and
all conditions on its part to be performed or satisfied hereunder and under
the Basic Documents at or prior to the Closing Date;
(c) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading,
nor shall any notice have been given of (i) any intended or potential
downgrading or (ii) any review or
15
possible change that does not indicate an improvement, in the rating
accorded any securities of or guaranteed by each Westpac Party by any
"nationally recognized statistical rating organization", as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given in
the Prospectus there shall not have been any material adverse change or any
development involving a prospective material adverse change, in or
affecting the general affairs, business, prospects, management, financial
position, stockholders' equity or results of operations of each Westpac
Party, taken as a whole, otherwise than as set forth or contemplated in the
Prospectus, the effect of which in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the public offering
or the delivery of the Notes on the Closing Date on the terms and in the
manner contemplated in the Prospectus;
(e) the Representatives shall have received on and as of the Closing
Date a certificate of an executive officer of each Westpac Party, with
specific knowledge about financial matters of such Westpac Party,
satisfactory to the Representatives to the effect set forth in subsections
[(a) through (d)] of this Section;
(f) Xxxxx Xxxxx & Xxxxxxx, Australian counsel for Westpac, the Trust
Manager and the Servicer, shall have furnished to the Representatives their
written opinion, dated the Closing Date, in form and substance satisfactory
to the Representatives, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass upon
such matters;
(g) Xxxxx Xxxxx & Xxxxxxx, Australian tax counsel for Westpac, the
Trust Manager and the Servicer, shall have furnished to the Representatives
their written opinion, dated the Closing Date, in form and substance
satisfactory to the Representatives, and such counsel shall have received
such papers and information as they may reasonably request to enable them
to pass upon such matters;
(h) on the date hereof and also on the Closing Date, Coopers &
Xxxxxxx L.L.P. shall have furnished to you letters, dated the respective
dates of delivery thereof, in form and substance satisfactory to you;
(i) the Representatives shall have received on and as of the Closing
Date an opinion of Xxxxx & Xxxx LLP, counsel to the Underwriters, with
respect to the Registration Statement, the Prospectus and other related
matters as the Representatives may reasonably request, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
00
(x) Xxxxx Xxxxx & Xxxxx, Xxxxxx Xxxxxx counsel for Westpac, the
Issuer Trustee and the Trust Manager, shall have furnished to the
Representatives their written opinion, dated the Closing Date, in form and
substance satisfactory to the Representatives, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(k) Xxxxx Xxxxx & Xxxxx, United States federal income tax counsel for
Westpac, the Issuer Trustee and the Trust Manager, shall have furnished to
the Representatives their written opinion, dated the Closing Date, in form
and substance satisfactory to the Representatives:
(l) Mallesons Xxxxxxx Xxxxxx, counsel for the Issuer Trustee, shall
have furnished to the Representatives their written opinion, dated the
Closing Date, in form and substance satisfactory to the Representatives,
and such counsel shall have received such papers and information as they
may reasonably request to enable them to pass upon such matters;
(m) Xxxxx & Xxxx, London, counsel for the Note Trustee, shall have
furnished to the Representatives their written opinion, dated the Closing
Date, in form and substance satisfactory to the Representatives, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(n) Counsel to the Interest Rate Swap and Currency Swap Provider
shall have furnished to the Representatives their written opinion and
substance satisfactory to the Representatives;
(o) the Representative shall have received a letter or letters from
each counsel delivering any written opinion to any Rating Agency in
connection with the transaction described herein which is not otherwise
described in this Agreement allowing the Representative to rely on such
opinion as if it were addressed to the Representative;
(p) at the Closing Date, the Class A Notes shall have been rated
"AAA" by Standard & Poor's Ratings Services, A Division of The XxXxxx-Xxxx
Companies, Inc. ("Standard and Poor's) and Fitch IBCA, Inc. ("Fitch") and
"Aaa" by Xxxxx'x Investors Service, Inc. ("Moody's" and together with
Standard and Poor's and Fitch, the "Rating Agencies") and the Class B Notes
shall have been rated "AA-" by Standard and Poor's and Fitch, as evidenced
by letters from the Rating Agencies;
(q) the execution and delivery by all parties thereto of the Basic
Documents on or prior to the Closing Date;
17
(r) the London Stock Exchange shall have agreed on or prior to the
Closing Date to list the Notes; and
(s) on or prior to the Closing Date the Westpac Parties and the
Issuer Trustee shall have furnished to the Representatives such further
certificates and documents as the Representatives shall reasonably request.
7. (a) INDEMNIFICATION AND CONTRIBUTION. Each of Westpac and the Trust
Manager, jointly and severally, agrees to indemnify and hold harmless each
Underwriter,each affiliate of an Underwriter which assists such Underwriter in
the distribution of the Securities, and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, the legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Trust Manager shall have furnished any amendments
or supplements thereto) (other than to the extent any losses, claims, damages or
liabilities arise as a result of any information under the heading "Prepayment
and Yield Considerations"), or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except (i) insofar as such losses,
claims, damages or liabilities are caused by any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Trust Manager in
writing by such Underwriter through the Representatives expressly for use
therein or (ii) that such indemnity with respect to the Prospectus shall not
inure to the benefit of any Underwriter (or any person controlling any
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Offered Notes which are the subject thereof if such
person did not receive a copy of the Prospectus (or the Prospectus as amended or
supplemented) at or prior to the confirmation of the sale of such Offered Notes
to such person in any case where such delivery is required by the Act and the
untrue statement or omission of a material fact contained in such Prospectus was
corrected in the Prospectus (or the Prospectus as amended or supplemented);
(b) To the extent that any payment of damages by Westpac pursuant to
subsection 7(a) above is determined to be a payment of damages pursuant to
"Funds Management and Securitisation Prudential Statement C2" such payment shall
be subject to the terms of Section 89 therein.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Trust Manager, its directors, its officers who sign the
Registration Statement, the Issuer Trustee and Westpac and each person who
controls any of the Westpac Parties or the Issuer Trustee within the meaning of
Section 15 of the Securities Act and Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Westpac Parties or
18
the Issuer Trustee to each Underwriter, but only with reference to information
relating to such Underwriter furnished to the Trust Manager in writing by such
Underwriter through the Representatives expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto.
(d) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to Subsections
(a) or (b) above, such person (the "Indemnified Person") shall promptly notify
the person against whom such indemnity may be sought (the "Indemnifying Person")
in writing, and the Indemnifying Person, upon request of the Indemnified Person,
shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding. In any such proceeding, any Indemnified Person
shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary, (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm for the Underwriters, each affiliate of any
Underwriter which assists such Underwriter in the distribution of the Notes, and
such control persons of Underwriters shall be designated in writing by the
Representatives and any such separate firm for the Trust Manager, its directors,
its officers who sign the Registration Statement, the Issuer Trustee and Westpac
and such control persons of any of the Westpac Parties or the Issuer Trustee
shall be designated in writing by the Trust Manager. The Indemnifying Person
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by the
third sentence of this subsection (c), the Indemnifying Person agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such Indemnifying Person of the aforesaid request and (ii) such
Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a
19
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such
proceeding.
(e) If the indemnification provided for in subsections (a) or (b) above is
unavailable to an Indemnified Person in respect of any losses, claims, damages
or liabilities referred to therein, then each Indemnifying Person under such
subsection, in lieu of indemnifying such Indemnified Person thereunder, shall
contribute to the amount paid or payable by such Indemnified Person as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative benefits received by the Westpac Parties and
the Issuer Trustee on the one hand and the Underwriters on the other hand from
the offering of the Notes and also the relative fault of the Westpac Parties and
the Issuer Trustee on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Westpac Parties and the
Issuer Trustee on the one hand and the Underwriters on the other shall be deemed
to be in the same respective proportions as the net proceeds from the offering
(before deducting expenses) received by the Westpac Parties and the Issuer
Trustee and the total underwriting discounts and the commissions received by the
Underwriters bear to the aggregate public offering price of the Notes. The
relative fault of the Westpac Parties and the Issuer Trustee on the one hand and
the Underwriters on the other 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 Westpac Parties or the Issuer Trustee or by the Underwriters and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Westpac Parties, the Issuer Trustee and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by PRO RATA allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in this subsection (d)
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall an Underwriter be required to
contribute any amount in excess of the amount by which the total price at which
the Notes underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute
20
pursuant to this Section 7 are several in proportion to the respective principal
amount of Notes set forth opposite their names in Schedule I hereto, and not
joint.
The remedies provided for in this Section 7 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
(f) The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Westpac Parties or the Issuer
Trustee set forth in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Westpac Parties or the Issuer Trustee,
its officers or directors or any other person controlling the Westpac Parties or
the Issuer Trustee and (iii) acceptance of and payment for any of the Notes.
8. TERMINATION. Notwithstanding anything herein contained, this
Agreement may be terminated in the absolute discretion of the Representatives,
by notice given to the Trust Manager, if after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, (ii) trading of any securities of or guaranteed by any
of the Westpac Parties or the Issuer Trustee shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York, Sydney, Australia or London, England
shall have been declared by either Federal or New York or related authorities,
or (iv) there shall have occurred any outbreak or escalation of hostilities or
any change in financial markets or any calamity or crisis that, in the judgment
of the Representatives, is material and adverse and which, in the judgment of
the Representatives, makes it impracticable to market the Notes on the terms and
in the manner contemplated in the Prospectus.
9. EFFECTIVENESS OF AGREEMENT; DEFAULT OF UNDERWRITERS. This Agreement
shall become effective upon the later of (x) execution and delivery hereof by
the parties hereto and (y) release of notification of the effectiveness of the
Registration Statement (or, if applicable, any post-effective amendment) by the
Commission.
If on the Closing Date any one or more of the Underwriters shall fail or
refuse to purchase Notes which it or they have agreed to purchase hereunder on
such date, and the aggregate principal amount of Notes which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate principal amount of the Notes to be purchased on
such date, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Notes set forth opposite their
respective names in Schedule I bears to the aggregate principal amount of Notes
set forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as the Representatives may specify, to purchase the Notes
which such defaulting Underwriter or
21
Underwriters agreed but failed or refused to purchase on such date; PROVIDED
that in no event shall the principal amount of Notes that any Underwriter has
agreed to purchase pursuant to Section 1 be increased pursuant to this Section 9
by an amount in excess of one-ninth of such principal amount of Notes without
the written consent of such Underwriter. If on the Closing Date any Underwriter
or Underwriters shall fail or refuse to purchase Notes which it or they have
agreed to purchase hereunder on such date, and the aggregate principal amount of
Notes with respect to which such default occurs is more than one-tenth of the
aggregate principal amount of Notes to be purchased on such date, and
arrangements satisfactory to the Representatives and the Trust Manager for the
purchase of such Notes are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Trust Manager. In any such case either you or the Trust
Manager shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
10. EXPENSES UPON TERMINATION. If this Agreement shall be terminated by
the Underwriters, or any of them, because of any failure or refusal on the part
of the Westpac Parties or the Issuer Trustee to comply with the terms or to
fulfill any of the conditions of this Agreement, or if for any reason any of the
Westpac Parties or the Issuer Trustee shall be unable to perform its obligations
under this Agreement or any condition of the Underwriters' obligations cannot be
fulfilled, Westpac agrees to reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and expenses of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
11. SELLING RESTRICTIONS. (a) No prospectus in relation to the Notes has
been lodged with, or registered by, the Australian Securities Commission or the
Australian Stock Exchange Limited. Each Underwriter represents and agrees that
in connection with the initial distribution of the Notes:
(i) it has not (directly or indirectly) offered for subscription
or purchase or issued invitations to subscribe for or buy nor
has it sold, the Notes,
(ii) will not (directly or indirectly) offer for subscription or
purchase or issue invitations to subscribe for or buy nor will
it sell the Notes, and
(iii) has not distributed and will not distribute any prospectus, or
any advertisement or other offering material
in the Commonwealth of Australia, its territories or possessions
("Australia") or to any person who is actually known by the
Underwriter (without an
22
obligation on the Underwriter to make any inquiry) to be a resident of
Australia for the purposes of section 128F of the Income Tax
Assessment Xxx 0000 of Australia (the "Tax Act") or to any associates
of Westpac identified on Annex A hereto or as otherwise notified in
writing by Westpac to the Underwriters from time to time.
(b) Each Underwriter (severally, not jointly) undertakes that the issue of
Offered Notes governed by this Agreement resulted from:
(a) an offer by such Underwriter within 30 days of issue to any
person as a result of negotiations being initiated in
electronic form (specifying the particular electronic screen
or service), the Prospectus or in such other form as may be
applicable, being a form that is used by the financial markets
for dealing in securities; or
(b) its offer of the Notes for sale within 30 days of issue to at
least 10 persons who are in the business of providing finance
or investing or dealing in securities in financial markets
each of whom was not known to be an associate of any of the
others (within the meaning of section 128F of the Tax Act),
and in either case it has announced on behalf of the Issuer Trustee in
relation to the offer that Xxxxxx Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System ("Euroclear") or
Cedel Bank SOCIETE ANONYME ("Cedel Bank") will confer rights in the
Notes under Book-Entry Notes. Each Underwriter will provide the
Issuer Trustee (within five Business Day of the offer of Notes by it)
a written statement which sets out details of the relevant offer.
Each Underwriter (severally, not jointly) agrees to co-operate with
reasonable requests from the Issuer Trustee for information for the
purposes of assisting the Issuer Trustee to demonstrate that the
public offer test under section 128F of the Tax Act has been
satisfied, provided that no Underwriter shall be obliged to disclose
the identity of the purchaser of any Note or any information from
which such identity might/would be capable of being ascertained, or
any information the disclosure of which would be contrary to or
prohibited by any relevant law, regulation or directive.
(c) Each Underwriter acknowledges that no representation is made by the
Issuer Trustee or any Underwriter that any action has been or will be
taken in any jurisdiction by the Issuer Trustee or any Underwriter
that would permit a public offering of the Notes, or possession or
distribution of the Prospectus or any other offering material, in any
country or jurisdiction where action for that purpose is required.
Each Underwriter will comply with all applicable
23
securities law and regulations in each jurisdiction in which it
purchases, offers, sell or delivers Notes or has in its possession or
distributes the Prospectus or any other offering material, in all
cases at its own expense.
12. CERTAIN MATTERS RELATING TO THE ISSUER TRUSTEE. The Issuer Trustee
enters into this Agreement only in its capacity as trustee of the Trust and in
no other capacity. A liability arising under or in connection with this
Agreement or the Trust can be enforced against the Issuer Trustee only to the
extent to which it can be satisfied out of assets of the Trust out of which the
Issuer Trustee is actually indemnified for such liability. This limitation of
the Issuer Trustee's liability applies despite any other provisions of this
Agreement and extends to all liabilities and obligations of the Issuer Trustee
in any way connected with any representation, warranty, conduct, omission,
agreement or Transaction related to this Agreement or the Trust.
The parties other than the Issuer Trustee may not xxx the Issuer Trustee in
any capacity other than as trustee of the Trust or seek the appointment of a
receiver (except under the Security Trust Deed) or a liquidator, an
administrator or any other similar person to the Issuer Trustee or prove in any
liquidation, administration or arrangements of or affecting the Issuer Trustee.
The provisions of this clause 12 shall not apply to any obligation or
liability of the Issuer Trustee to the extent that it is not satisfied because
under the Master Trust Deed or by operation of law there is a reduction in the
extent of the Issuer Trustee's indemnification out of the assets of the Trust as
a result of the Issuer Trustee's fraud, negligence or breach of trust.
It is acknowledged that the Trust Manager, the Servicer, the Currency Swap
Providers, the Note Trustee, the Principal Paying Agent, the other Paying Agents
and the Agent Bank (each, a "Relevant Party") are responsible under the
Transaction Documents (as defined in the Master Trust Deed) for performing a
variety of obligations relating to the Trust. No act or omission of the Issuer
Trustee (including any related failure to satisfy its obligations under the
Transaction Documents) will be considered fraud, negligence or breach of trust
of the Issuer Trustee for the purpose of this Agreement to the extent to which
the act or omission was caused or contributed to by any failure by any Relevant
Party or any other person who provides services in respect of the Trust (other
than a person who has been delegated or appointed by the Issuer Trustee and for
whom the Issuer Trustee is responsible under the relevant Transaction Document,
but excluding any Relevant Party) to fulfil its obligations relating to the
Trust or by any other act or omission of a Relevant Party or by any other person
who provides services in respect of the Issuer Trustee (other than a person who
has been delegated or appointed by the Issuer Trustee and for whom the Issuer
Trustee is responsible under the Transaction Documents, but excluding any
Relevant Party).
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13. SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the Westpac Parties, the Issuer Trustee, the Underwriters, each
affiliate of any Underwriter which assists such Underwriter in the distribution
of the Notes, any controlling persons referred to herein and their respective
successors and assigns. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person, firm or corporation any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. No purchaser of Notes from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
14. ACTIONS BY REPRESENTATIVES; NOTICES. Any action by the Underwriters
hereunder may be taken by the Representatives jointly or by X.X. Xxxxxx
Securities Inc. alone on behalf of the Underwriters, and any such action taken
by the Representatives jointly or by X.X. Xxxxxx Securities Inc. alone shall be
binding upon the Underwriters. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be given to [the Representatives c/o X.X. Xxxxxx Securities
Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 (Facsimile No.: (212)
648-5909); Attention: Syndicate Desk. Notices to the Trust Manager shall be
given to it at _____________, ____________, ________________, (Facsimile No.:
_______________; Attention: ________________, to the Issuer Trustee shall be
given to it at _______________, ________________, _______________, (Facsimile
No.: ______________; Attention: ______________ and to Westpac shall be given to
it at _________________, ______________, _______________, (Facsimile No:
_____________).
15. COUNTERPARTS: APPLICABLE LAW. This Agreement may be signed in
counterparts, each of which shall be an original and all of which together shall
constitute one and the same instrument. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to the conflicts of laws provisions thereof.
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If the foregoing is in accordance with your understanding, please sign and
return the enclosed counterparts hereof.
Very truly yours,
WESTPAC SECURITIZATION
MANAGEMENT PTY LIMITED
By:
-----------------------------------
Name:
Title:
WESTPAC SECURITIES ADMINISTRATION
LIMITED
By:
-----------------------------------
Name:
Title:
WESTPAC BANKING CORPORATION
By:
-----------------------------------
Name:
Title:
26
Accepted: May __, 1998
X.X. Xxxxxx Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Acting severally on behalf
of themselves and the
several Underwriters
listed in Schedule I hereto.
X.X. XXXXXX SECURITIES INC.
By:
---------------------------
Name:
Title:
XXXXXX XXXXXXX & CO. INCORPORATED
By:
---------------------------
Name:
Title:
27
SCHEDULE I
PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
---------------------
Underwriter
-----------
X.X. Xxxxxx Securities Inc. ..................
Xxxxxx Xxxxxxx & Co. Incorporated ............
Westpac Banking Corporation ..................
Deutsche Xxxxxx Xxxxxxxx Inc. ................
Xxxxxxx Lynch, Pierce, Xxxxxx and Xxxxx
Incorporated .....................
Total ..............................
==============
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