Exhibit 1.1
Underwriting Agreement
UNDERWRITING AGREEMENT
U.S.$1,116,000,000
WESTPAC SECURITIES ADMINISTRATION LIMITED
SERIES 0000-0X XXX XXXXX
X.X.x Class A Mortgage Backed Floating Rate Notes
UNDERWRITING AGREEMENT
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6th March, 2002 (Australian Eastern Standard Time)
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
as Representatives of the Several Underwriters listed in Schedule 1
Ladies and Gentlemen:
Westpac Securities Administration Limited (ABN 77 000 049 472), a limited
liability public company under the Corporations Xxx 0000 of the Commonwealth of
Australia ("WSAL") 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"), U.S.$1,116,000,000 principal amount of
Class A Mortgage Backed Floating Rate Notes (the "Notes" or the "Class A Notes")
issued by the Series 2002 -1G WST Trust (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 (ABN 33 007 457
141) ("Westpac") including all monies at any time paid or payable thereon or in
respect thereof from, on and after 15 February, 2002 (the "Cut-Off Date") with
respect to payments of principal and after 14 March, 2002 (the "Closing Date")
with respect to payments of interest, rights under certain insurance policies
with respect to the Housing Loans, the collection account relating to the Trust
and the rights of the Issuer Trustee under 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 (the "Basic
Documents"). The Series 2002-1G WST Trust (the "Trust") will be created pursuant
to the Master Trust Deed, dated February 14, 1997 (the "Master Trust Deed")
between the Issuer Trustee and The Mortgage Company Pty Limited (ABN 86 070 968
302) and a series notice, to be dated 12 March, 2002 (the "Series Notice"),
between the Issuer Trustee and Westpac Securitisation Management Pty Limited
(ABN 73 000 000 000) (the "Trust Manager"), which sets forth specific provisions
regarding the Trust and details the provisions of the Notes. The Note Trust
Deed, to be dated on
or about 12 March, 2002 (the "Note Trust Deed") by and among the Issuer Trustee,
the Trust Manager and Citibank, N.A., London Branch (the "Note Trustee") will
provide for the issuance and registration of the Notes in accordance with the
terms and conditions attached thereto. Westpac will act as servicer (the
"Servicer") of the Housing Loans. The Trust Manager and Westpac (except in its
capacity as Servicer) are each a "Westpac Party" and collectively are referred
to herein as the "Westpac Parties." The Notes are described in the Prospectus
(as defined below) which the Trust Manager has furnished to the Underwriters.
To the extent not defined herein, capitalized terms used herein have the
meanings assigned to such terms in the Series Notice and the Master Trust Deed.
In this Agreement, a reference to the Issuer Trustee is a reference to the
Issuer Trustee in its capacity as trustee of the Series 0000-0-X 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. Offering.
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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 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, and in
compliance with all applicable laws and regulations.
2. Purchase and Sale.
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Subject to the terms and conditions and in reliance upon the
representations and warranties set forth herein, 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 agrees to purchase,
severally and not jointly, 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 100 percent of the principal amount of each Class A Note. In
connection with such purchase, Westpac will pay in immediately available funds
to the Underwriters the commissions payable under the letter agreement relating
to fees and expenses among Westpac and the Representatives (a copy of which is
attached hereto as an exhibit).
3. Delivery and Payment.
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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 on the Closing Date, 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.
Payment for the Notes shall be made against delivery to the nominee of The
Depository Trust Company ("DTC") for the account of the Representatives of one
or more book-entry notes (the "Book-Entry Notes") representing the Notes, with
any transfer taxes payable in connection
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with the transfer to the Underwriters of the Notes duly paid by the Issuer
Trustee. The Book-Entry Notes will be made available for inspection by the
Representatives at the office of Xxxxx, Xxxxx Xxxx & Maw, 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 not later than 1:00 P.M., New York City time, on the
Business Day prior to 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.
4. Representations and Warranties of the Westpac Parties and the Issuer
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Trustee.
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(a) The Issuer Trustee represents and warrants to each Underwriter that as at
the date hereof and as of the Closing Date:
(i) since 4 March, 2002 (the date (Australian Eastern Standard Time) of
the last due diligence call) there has been no material adverse change in the
condition (financial or otherwise) of the Issuer Trustee 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;
(ii) Issuer Trustee is a corporation duly incorporated and existing under
the laws of the Commonwealth of Australia; it is lawfully qualified and holds
all Authorisations (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;
(iii) this Agreement has been duly authorized, executed and delivered by
the Issuer Trustee. The Note Trust Deed will have been duly qualified under the
Trust Indenture Act of 1939 as of the Closing Date;
(iv) 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. Each Basic Document to which
it is a party has been duly authorized, and, when executed and delivered by the
Issuer Trustee and, each of the other parties thereto, each Basic Document to
which it is a party 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;
(v) 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 Constitution or any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Issuer Trustee is a party or by
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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 to which it
is a party 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 material
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
Constitution of the Issuer Trustee or any applicable law or statute or any
order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Issuer Trustee, or any of its properties; and, to the
knowledge of the Issuer Trustee, 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, or will be obtained as of the Closing Date, under the Securities Act,
the Trust Indenture Act, the listing rules of the Financial Services Authority
("UK Listing Authority"), the Financial Services and Markets Act ("FISMA") 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;
(vi) 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 Trust is or may be the
subject, (a) asserting the invalidity of this Agreement or of any of the Basic
Documents in relation to the Issuer Trustee, (b) 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, (c) that may
adversely affect the federal or state income, excise, franchise or similar tax
attributes of the Notes, (d) 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 (e) 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;
(vii) the representations and warranties of the Issuer Trustee contained
in the Basic Documents to which it is a party are true and correct in all
material respects as of the date when made;
(viii) PricewaterhouseCoopers are independent public accountants with
respect to the Issuer Trustee within the meaning of the Securities Act;
(ix) 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;
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(x) the Prospectus will as at the Closing Date comply with the Listing
Rules of the UK Listing Authority, and the Prospectus (as of the date hereof (a)
contains all the information required by section 80 of FISMA and (b) in the
context of the issue of the Notes to be issued to persons other than residents
of the United States of America, 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 all reasonable
inquiries have been made to ascertain the accuracy of all such information.;
(xi) 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;
(xii) subject to compliance with Section 128F of the Income Tax Assessment
Xxx 0000 of Australia (the "Tax Act") and compliance by the Underwriters with
clause 12(a)(iii)(D), the paragraph following such clause, clause 12(b) and
clause 12(c) hereto, 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, except for nominal stamp duty payable in
Queensland on the initial transfer of the housing loans;
(xiii) the Notes and the obligations of the Issuer Trustee under the Note
Trust Deed will be secured (pursuant to the Security Trust Deed) by a first
floating charge over the assets of the Trust; and
(xiv) 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 of Default under the Security Trust Deed.
(b) The Trust Manager represents and warrants to each Underwriter and the
Issuer Trustee as at the date hereof and as of the Closing Date that:
(i) A Registration Statement for the registration of Mortgage Backed
Notes (issuable in series), including the Notes, on Form S-3 (No.
333-32944) has (a) been prepared by the Trust Manager in conformity
with the requirements of the Securities Act of 1933, as amended (the
"Securities Act") and the rules and regulations (the "Rules and
Regulations") of the United States Securities and Exchange
Commission (the "Commission") thereunder, (b) been filed with the
Commission under the Securities Act and (c) become effective under
the
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Securities Act. Copies of such Registration Statement have been
delivered by the Trust Manager to the Underwriters. As used in this
Agreement, "Effective Time" means the date and the time as of which
such Registration Statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission;
"Effective Date" means the date of the Effective Time; "Registration
Statement" means such registration statement, at the Effective Time
and as of the Closing Date, including any documents incorporated by
reference therein at such time; and "Prospectus" means such final
prospectus dated February 25, 2002 as first supplemented by a
prospectus supplement, relating to the Notes, as first filed with
the Commission pursuant to paragraph (1), (2), (3), (4) or (5) of
Rule 424(b) of the Rules and Regulations. Reference made herein to
the Prospectus shall be deemed to refer to and include any documents
incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act, as of the date of the Prospectus, and any
reference to any amendment or supplement to the prospectus shall be
deemed to refer to and include any document filed under the
Securities Exchange Act of 1934 (the "Exchange Act") after the date
of the Prospectus and incorporated by reference in the Prospectus,
and any reference to any amendment or supplement to the Registration
Statement shall be deemed to include any report filed with the
Commission with respect to the Trust Manager pursuant to Section
13(a) or 15(d) of the Exchange Act after the date of the Prospectus
that is incorporated by reference in the Registration Statement.
There are no contracts or documents of the Trust Manager which are
required to be filed as exhibits to the Registration Statement
pursuant to the Securities Act or the Rules and Regulations which
have not been so filed or incorporated by reference therein on or
prior to the Effective Date of the Registration Statement. As
interpreted by the SEC, the conditions for use of Form S-3 as set
forth in the General Instructions thereto have been satisfied;
(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,
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 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, 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: (a) that part of
the Registration Statement which constitutes the Statement of
Eligibility and
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Qualification (Form T-1) of the Note Trustee under the Trust
Indenture Act; (b) 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) information (except as to any
information or materials provided by a Westpac Party to produce such
information) under the heading "Prepayment and Yield Considerations"
in the Prospectus;
(iii) the documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission , as the case may
be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the Rules and
Regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading; and any further documents so
filed and incorporated by reference in the Prospectus, when such
documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as
applicable, and the Rules and Regulations of the Commission
thereunder and will not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided that no representation or
warranty is made as to information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon and in
conformity with information furnished to the Trust Manager in
writing by the Underwriters expressly for use therein;
(iv) 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, as supplemented or amended as of the Closing Date;
(v) the Trust Manager is a corporation duly incorporated and validly
existing under the Corporations Xxx 0000 of the Commonwealth of
Australia, the Trust Manager has the power and authority
(corporate and other) to own its properties and 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 or is to be 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
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qualified or licensed or in good standing would not have a material
adverse effect on the transactions contemplated herein or in the
Basic Documents;
(vi) this Agreement has been duly authorized, executed and delivered
by the Trust Manager;
(vii) each of the Basic Documents to which it is a party has been duly
authorized by the Trust Manager, and, when executed and delivered
by the Trust Manager and each of the other parties thereto, each of
the Basic Documents to which it is a party 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;
(viii) The Notes and the Basic Documents each will conform to the
descriptions thereof in the Prospectus;
(ix) 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
Constitution 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 performance by
the Trust Manager of all of the provisions of its obligations under
the Basic Documents to which it is a party 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
material 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
Constitution 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 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, or will be
obtained as of the Closing Date, under the Securities Act, the
Trust Indenture Act, the listing rules of the UK Listing Authority,
FISMA 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;
(x) 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
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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 Trust Manager or any property of
the Trust Manager is or may be the subject, (a) asserting the
invalidity of this Agreement or of any of the Basic Documents in
relation to the Trust Manager, (b)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,
(c)that may adversely affect the federal or state income, excise,
franchise or similar tax attributes of the Notes, (d) 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 by the Trust
Manager, or (e) 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;
(xi) the representations and warranties of the Trust Manager contained
in the Basic Documents to which it is a party are true and correct
in all material respects as of the date when made;
(xii) PricewaterhouseCoopers are independent public accountants with
respect to the Trust Manager within the meaning of the Securities
Act;
(xiii) the Trust Manager owns, possesses or has obtained all
Authorisations (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 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 Authorisation, 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;
(xiv) 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;
(xv) the Prospectus complies with the Listing Rules of the UK Listing
Authority and the Prospectus contains all the information required
by section 80 of FISMA;
(xvi) 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;
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(xvii) subject to compliance with Section 128F of Tax Act and compliance
by the Underwriters with clause 12 of this Agreement, 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, except for nominal stamp duty payable in Queensland on
the initial transfer of the housing loans; and
(xviii) 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 of Default under the
Security Trust Deed.
(c) Westpac represents and warrants to each Underwriter and the Issuer Trustee
as at the date hereof and the Closing Date that:
(i) Westpac is a corporation organized under the laws of New South
Wales, Australia;
(ii) this Agreement has been duly authorized, executed and delivered
by Westpac;
(iii) the representations and warranties of Westpac contained in the
Basic Documents are true and correct in all material respects;
(iv) since 4 March, 2002 (the date (Australian Eastern Standard Time) of
the last due diligence call) there has been no material adverse change in the
condition (financial or otherwise), or earnings of Westpac or the Westpac Group;
and
(v) as of the Closing Date, Westpac will have transferred to the Issuer
Trustee a valid equitable assignment of each related Housing Loan offered for
sale by it to the Issuer Trustee.
5. Covenants and Agreements.
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(a) Each Underwriter, severally and not jointly, and solely as to itself,
represents and warrants to and agrees with the Trust Manager, Westpacand the
Issuer Trustee that as of the date hereof and as of the Closing Date, such
Underwriter has complied with all of its obligations hereunder, including,
without limitation, Section 12,.
(b) The Trust Manager covenants and agrees with each of the several
Underwriters as follows:
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(i) To prepare the Prospectus and to file such Prospectus pursuant to Rule
424(b) under the Securities Act not later than the time required thereby; to
make no further amendment or any supplement to the Registration Statement or to
the Prospectus prior to the Closing Date except as permitted herein; to advise
the Underwriters, promptly after it receives notice thereof, of the time, during
the period that a Prospectus is required to be delivered in connection with the
offer and sale of the Notes, when any amendment to the Registration Statement
has been filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish the Underwriters with copies
thereof; to file promptly all reports or definitive proxy or information
statements required to be filed by the Trust Manager with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of the Prospectus and, for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Notes, to promptly
advise the Underwriters of its receipt of notice of the issuance by the
Commission of any stop order or of: (a) any order preventing or suspending the
use of the Prospectus with respect to the Notes; (b) the suspension of the
qualification of the Notes for offering or sale in any jurisdiction; (c) the
initiation of or threat of any proceeding for any such purpose; (d) any request
by the Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information. In the event of the
issuance of any stop order or of any order preventing or suspending the use of
the Prospectus or suspending any such qualification, the Trust Manager promptly
shall use its best efforts to obtain the withdrawal of such order by the
Commission;
(ii) To furnish promptly to the Underwriters and to counsel for the
Underwriters a signed copy of the Registration Statement as originally filed
with the Commission, including all consents and exhibits filed therewith;
(iii) To deliver promptly to the Underwriters such number of the following
documents as the Underwriters shall reasonably request: (a) conformed copies of
the Registration Statement as originally filed with the Commission and each
amendment thereto (in each case including exhibits); (b) the Prospectus and any
amended or supplemented Prospectus; and (c) any document filed by the Trust
Manager and incorporated by reference in the Prospectus (including exhibits
thereto). If the delivery of a prospectus is required at any time prior to the
expiration of nine months after the Effective Time in connection with the
offering or sale of the Notes, and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus or to file under the Exchange
Act any document incorporated by reference in the Prospectus in order to comply
with the Securities Act or the Exchange Act, the Trust Manager shall notify the
Underwriters and, upon the request of the Underwriters, shall file such document
and prepare and furnish without charge to the Underwriters and provide as many
copies as the Underwriters may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which corrects such
statement or omission or effects such compliance, and in case the Underwriters
are required to deliver a Prospectus in connection with sales of any of the
Notes at any time nine months or more after the Closing Date, upon the request
and expense of the Underwriters, the Trust Manager shall prepare and deliver to
the Underwriters as many copies as the Underwriters may reasonably request of an
amended or
11
supplemented Prospectus complying with Section 10(a)(3) of the Securities Act.
Neither the Underwriters' consent nor the Underwriters' delivery of any such
amendment or supplement shall constitute a waiver of any of the conditions set
forth in Section 6 of this agreement;
(iv) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the reasonable judgment of the Trust Manager or the Underwriters,
be required by the Securities Act or requested by the Commission;
(v) Prior to filing with the Commission any (a) supplement to the
Prospectus or (b) Prospectus pursuant to Rule 424 of the Rules and Regulations,
to furnish a copy thereof to the Underwriters and counsel for the Underwriters
and obtain the consent of the Underwriters to the filing, which consent shall
not be reasonably withheld;
(vi) To use its best efforts, in cooperation with the Underwriters, to
qualify the Notes for offering and sale under the applicable securities laws of
such states and other jurisdictions of the United States as the Underwriters and
Trust Manager may agree, and maintain or cause to be maintained such
qualifications in effect for as long as may be required for the distribution of
the Notes; provided that the Trust Manager shall not be required to become
subject to any general consent to service of process or jurisdiction in any
jurisdiction in which it is not so qualified as of the date of this Agreement.
The Trust Manager will file or cause the filing of such statements and reports
as may be required by the laws of each jurisdiction in which the Notes have been
so qualified;
(vii) 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 Rules and Regulations;
(viii) so long as the Notes are outstanding, to furnish to the
Representatives (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 Trustee pursuant to the Basic
Documents by first class mail as soon as practicable after such statements and
reports are furnished to the Trustee, (b) copies of each amendment to any of the
Basic Documents, (c) on each Determination Date or as soon thereafter as
practicable, the Bond Factor as of the related Record Date shall be available to
the Representatives on Bloomberg , (d) 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 (e) from time to time such other information concerning the Trust
or the Trust Manager as the Representatives may reasonably request;
(ix) 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;
12
(x) to list the Notes on the official list (the "Official List") of the UK
Listing Authority, obtain admission of the Notes to trading on the London Stock
Exchange plc (the "London Stock Exchange") and to use its best efforts to
maintain such listing and to maintain the trading of the Notes on the London
Stock Exchange 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;
(xi) 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 UK Listing Authority) and publish all
advertisements or other material and to comply with any other requirements of
the UK Listing Authority or the London Stock Exchange that may be necessary in
order to effect and maintain such listing and the admission to, and continuation
of trading of the Notes on the London Stock Exchange;
(xii) to assist the Representatives to make arrangements with DTC, the
Euroclear system ("Euroclear"), and Clearstream Banking, Societe Anonyme
(formerly Cedelbank) ("Clearstream Luxembourg") concerning the issue of the
Notes and related matters; and
(xiii) 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 Notes not being assigned the ratings referred to in Section
6(n) below.
(c) The Issuer Trustee covenants and agrees with each of the Westpac Parties
and each of the several Underwriters as follows:
(i) 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";
(ii) 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;
(iii) 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;
(iv) 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 (a) the Issuer Trustee shall execute those of
the Basic Documents not executed on the date hereof on or before the Closing
Date, and (b) the Issuer Trustee will assist the Representatives to make
13
arrangements with DTC, Euroclear and Clearstream Luxembourg concerning the issue
of the Notes and related matters;
(v) 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;
(vi) 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; and
(vii) 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 Notes not being assigned the ratings
referred to in Section 6(xiii) below; and 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
parties hereto.
(d) Westpac covenants and agrees with each of the several Underwriters that,
all fees, costs and expenses incident to the performance of its obligations
hereunder, including commissions payable, in immediately available funds to the
Underwriters for the performance of their obligations under this Agreement,
shall be paid as set forth in a letter attached as an exhibit hereto (the "Fee
Letter") and dated 4 February, 2002 among Westpac and the Representatives.
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:
(i) the Underwriters shall have received confirmation of the effectiveness
of the Registration Statement and that no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and 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. Any
request of the Commission for inclusion of additional information in the
Registration Statement or the Prospectus shall have been complied with;
(ii) 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 to which each is party, at
or prior to the Closing Date;
(iii) subsequent to the execution and delivery of this Agreement and prior
to the Closing Date, there shall not have occurred any downgrading of the
long-term debt of Westpac;
14
(iv) since the respective dates as of which information is given in the
Prospectus there shall not have been any material adverse change in or affecting
the condition (financial or otherwise), earnings, general affairs, business,
prospects, management, financial position, stockholders' equity or results of
operations of the Westpac Parties, 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;
(v) 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 6(ii) through (iv);
(vi) Allens Xxxxxx Xxxxxxxx, Australian counsel for Westpac, the Trust
Manager and the Servicer, shall have furnished to the Representatives their
written opinion (covering inter alia Australian tax matters), 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; on the date hereof and also on
the Closing Date;
(vii) the Representatives shall have received on and as of the Closing
Date an opinion of Sidley Xxxxxx 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;
(viii) Xxxxx Xxxxx Xxxx & Maw, United States 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;
(ix) Xxxxx Xxxxx Xxxx & Maw, 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;
(x) Mallesons Xxxxxxx Xxxxxx, Australian 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;
(xi) Sidley Xxxxxx Xxxxx & Xxxx LLP, United States 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;
15
(xii) Counsel to the Interest Rate Swap Provider and Currency Swap
Providers shall have furnished to the Representatives their written opinion and
substance satisfactory to the Representatives;
(xiii) the Representative shall have received a letter or letters from
each counsel delivering any written opinion to Standard & Poor's Ratings
Services, A Division of The XxXxxx-Xxxx Companies, Inc. ("Standard and Poor's")
and Xxxxx'x Investors Service, Inc. ("Moody's" and together with Standard and
Poor's the "Rating Agencies") 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;
(xiv) at the Closing Date, the Class A Notes shall have been rated "AAA"
by Standard and Poors and "Aaa" by Moodys as evidenced by letters from the
Rating Agencies;
(xv) the Notes shall have been admitted to the Official List and admitted
to trading on the London Stock Exchange or such other exchange as the parties
shall agree upon or the Representatives shall be satisfied that such listing
will be granted after the Closing Date but in any event, prior to the first
Payment Date for the Notes;
(xvi) the Representative shall have received letters, dated the date of
delivery thereof, of PricewaterhouseCoopers in form and substance satisfactory
to the Representatives, confirming that they are independent public accountants
and stating in effect that they have performed certain specified procedures as a
result of which they have determined that certain information of an accounting,
financial or statistical nature set forth in the Prospectus (and any amendments
and supplements thereto), agrees with the accounting records of Westpac,
excluding any questions of legal interpretation;
(xvii) the Representative shall have received on and as of the Closing
Date a certificate of an Authorized Officer of the Note Trustee, with specific
knowledge about 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, satisfactory to the Representative to the effect that
such part of the Registration Statement complies, or will comply, as the case
may be, in all material respects with the Securities Act and the Trust Indenture
Act and does not and will not contain any untrue statement of a material act or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading; and
(xviii) 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 may reasonably request.
7. Indemnification and Contribution.
--------------------------------
(a) 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, (collectively the "Underwriter Parties") from and against any and all
losses, claims, damages and liabilities (including, without limitation, the
legal fees and other expenses
16
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 in the Prospectus (as
amended and supplemented if the Trust Manager shall have furnished any
amendments or supplements thereto), 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) to the
extent any losses, claims, damages or liabilities arise as a result of any
information under the heading "Prepayment and Yield Considerations", except to
the extent of any errors in the information under such heading that are caused
by errors in pool information, (ii) 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 (iii) that
such indemnity with respect to the Prospectus shall not inure to the benefit of
any Underwriter Party from whom the person asserting any such loss, claim,
damage or liability purchased the Notes if such person did not receive a copy of
the Prospectus as amended or supplemented) to correct the untrue statement or
omission of a material fact, at or prior to the confirmation of the sale of such
Notes to such person in any case where such delivery is required by the Act; and
the Trust Manager has furnished the Underwriter Party an amended or supplemented
Prospectus in such quantity and with sufficient time to make the required
delivery to such person;
(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
"Guidance Note AGN 120.3 - Purchase and Supply of Assets (including Securities
Issued by SPVs)", such payment shall be subject to the conditions specified in
Paragraph 15 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 to each Underwriter,
but only with reference to information relating to the "Plan of Distribution"
section in the Prospectus furnished to the Trust Manager in writing by such
Underwriter through the Representatives expressly for use in the Registration
Statement, the Prospectus, or 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
17
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, and Westpac and such control
persons of any of the Westpac Parties 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 (a) such settlement is
entered into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (b) 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
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
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,
18
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.
(f) 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 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.
(g) The indemnity and contribution agreements contained in this Section 7 and
the representations and warranties of the Westpac Parties, the Issuer Trustee
and Underwriters 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
19
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. Default of Underwriters.
-----------------------
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 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 as set forth in the Fee Letter.
11. Fee Letter.
----------
20
Notwithstanding any term or provision herein in relation to fees and
expenses, any obligation of reimbursement of such fees or expenses by a Westpac
Party shall be subject to, and where applicable, superceded by, the terms and
provisions of the Fee Letter.
12. Selling Restrictions.
--------------------
(a) No prospectus or other disclosure document in relation to the Notes has
been lodged with, the Australian Securities and Investment Commission or the
Australian Stock Exchange Limited. Each Underwriter represents and agrees,
severally and not jointly, 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,
(iii) has not distributed and will not distribute any draft or
definitive offering memorandum or prospectus, or any advertisement or other
offering material;
in the Commonwealth of Australia, its territories or possessions
("Australia"); unless:
(A) the written consent of the Trust Manager has been obtained and,
(B) the amount payable on acceptance of the offer for the Notes by each
offeree or invitee is a minimum amount of A$500,000 (or its equivalent in other
currency) (disregarding amounts, if any, lent by the Issuer Trustee or other
person offering the Note or an associate of either 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 and the Corporations
Regulations made under the Corporations Act;
(C) the offer, invitation or distribution complies with all applicable
laws, regulations and directives and does not require any document to be lodged
with the Australian Securities and Investments Commission; and
(D) the Notes will not be acquired by an associate of the Issuer Trustee
or Westpac within the meaning of s128F of the Tax Act (other than in the
capacity of an underwriter in relation to a placement of the Note) as identified
on a list provided by Westpac.
In addition, each Underwriter agrees that, in connection with the
primary distribution of any Notes, it will not sell any Notes to any person if,
at the time of such sale, the employees of the Underwriter aware of, or involved
in, the sale knew or had reasonable grounds to suspect that, as a result of such
sale, such Notes or an interest in such Notes were being, or would later be,
acquired (directly or indirectly) by an associate of the Issuer Trustee for the
purposes of Section 128F(9) of the Tax Act (other than in the capacity of a
dealer, underwriter or manager in relation to the placement of the Notes).
21
(b) Each Underwriter (severally, not jointly) undertakes to offer, within
30 days of issue, the Notes governed by this Agreement, in one or more of the
ways covered by any of paragraphs (a) to (d) of Section 128F(3) of the Tax
Act,and in any case it has announced on behalf of the Issuer Trustee in relation
to the offer that Euroclear Bank, as operator of the Euroclear System
("Euroclear") or Clearstream Luxembourg will confer rights in the Notes under
Book-Entry Notes. Each Underwriter will provide the Issuer Trustee (within five
Business Days of the offer of Notes by it) a written statement which sets out
details of the relevant offer.
(c) 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; and
(d) 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
securities laws 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.
(e) Each Underwriter represents and agrees that (i) it has not offered or
sold, and prior to admission of the Notes to listing in accordance with Part VI
of FISMA will not offer or sell any Notes (or beneficial interests therein) to
Persons in the United Kingdom except to Persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or who it is reasonable
to expect will acquire, hold, manage or dispose of investments (as principal or
agent) for purposes of their businesses or otherwise in circumstances that have
not resulted in and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulations 1995,
as amended, (ii) it has complied and will comply with all applicable provisions
of FISMA and the Public Offers of Securities Regulations 1995, as amended, with
respect to anything done by it in relation to the Notes in, from or otherwise
involving the United Kingdom; (iii) it has only communicated and will only
communicate in the United Kingdom any document received by it in connection with
the issue of the Notes, other than any document which consists of, or any part
of, listing particulars, supplementary listing particulars or any other document
required or permitted to be published by listing rules under Part VI of FISMA,
in circumstances where the document may lawfully be communicated including,
without limitation, to a Person who is of a kind described as an investment
professional under Article 19 or as a high net worth person under Article 49 of
the Financial Services and Markets Xxx 0000 (Financial Promotion) Order 2001, as
amended, and in each case it has complied with and will comply with all the
relevant conditions contained in such Articles 19 and 49; and (iv) that no Notes
and no material relating to any Notes are available to other categories of
persons in the United Kingdom
22
and no-one falling outside such categories is entitled to rely on, and must not
act on, any information in this document.
(f) Each Underwriter who is carrying on, or purporting to carry on, or who
in relation to this Agreement will carry on, or purport to carry on, regulated
activities (as defined for the purposes of FISMA) in the United Kingdom
represents and agrees that it is an authorised person or an exempt person under
FISMA.
13. 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 13 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 fulfill 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). No attorney, agent, receiver, or receiver and manager appointed
in accordance with this agreement or any other Transaction Document (including a
Relevant Party) has authority to act on behalf of the Isuer Trustee in a way
which exposes the Issuer Trustee to any personal liability and no act or
omission of any such person will be considered fraud, negligence or breach of
trust
23
of the Issuer Trustee for the purpose this Agreement, if the Issuer Trustee has
exercised reasonable care in the selection and supervision of such a person.
14. 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.
15. Actions by Representatives; Notices.
-----------------------------------
Any action by the Underwriters hereunder may be taken by the
Representatives alone on behalf of the Underwriters, and any such action taken
by the Representatives 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 at c/x. Xxxxxxx Xxxxx Xxxxxx, 000 Xxxxxxxxx, 0xx Xxxxx, Xxx
Xxxx, XX 00000, Attention: Director, Asset Backed Finance. Notices to the Trust
Manager shall be given to it at c/o Westpac Banking Corporation, Xxxxx 0, 00
Xxxxxx Xxxxx, Xxxxxx, XXX 0000, Attention: Senior Manager, Securitisation; to
the Issuer Trustee shall be given to it at c/o Westpac Banking Corporation,
Xxxxx 0, 00 Xxxx Xxxxxx, Xxxxxx, XXX 0000, Xxxxxxxxx, Attention: Manager,
Trustee Securitisation; and to Westpac shall be given to it at Xxxxx 0, 00
Xxxxxx Xxxxx, Xxxxxx, XXX 0000, Attention: Senior Manager, Securitisation.
16 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.
24
If the foregoing is in accordance with your understanding, please sign and
return the enclosed counterparts hereof.
Very truly yours,
WESTPAC SECURITISATION MANAGEMENT PTY
LIMITED
By: /s/ G.P.D. Xxxxxx
-----------------------------------
Name: G.P.D. Xxxxxx
Title: Attorney
WESTPAC SECURITIES ADMINISTRATION LIMITED
By: /s/ Xxxxxx Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx Xxxxxxxx
Title: Attorney
WESTPAC BANKING CORPORATION
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Senior Manager, Global Funding
Attorney
By: /s/ G.P.D. Xxxxxx
-----------------------------------
Name: G.P.D. Xxxxxx
Title: Attorney
25
Accepted: Xxxxxxx Xxxxx Barney Inc.
Acting severally on behalf of themselves and the several Underwriters listed in
Schedule I hereto.
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
By:
-------------------------------
Name:
Title:
26
SCHEDULE I
Underwriter PRINCIPAL AMOUNT OF CLASS A
NOTES TO BE PURCHASED
---------------------------------
Xxxxxxx Xxxxx Xxxxxx Inc. US$816,000,000
Credit Suisse First Boston Corporation US$100,000,000
Deutche Banc Alex. Xxxxx Inc. US$100,000,000
Westpac Banking Corporation US$100,000,000
Exhibit
(Fees Letter - attached)
28
