UNDERWRITING AGREEMENT
U.S.$_____________
WESTPAC SECURITIES ADMINISTRATION LIMITED
SERIES 0000-0X XXX XXXXX
U.S.$_____________ Class A Mortgage Backed Floating Rate Notes
UNDERWRITING AGREEMENT
May 6, 1999
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 (ACN 000 049 472), 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"), U.S.$_____________ principal amount of
Class A Mortgage Backed Floating Rate Notes (the "Class A 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 (ARBN 007 457 141)
("Westpac") including all monies at any time paid or payable thereon or in
respect thereof from, on and after March 31, 1999 (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 1999-1G 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 May 13, 1999 (the "Series
Notice"), each between the Issuer Trustee and Westpac Securitisation 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 May 13, 1999 (the "Note Trust Deed") by and among the Issuer
Trustee, the Trust Manager and Citibank, N.A. (the "Note Trustee") provides for
the issuance and registration of the Notes in accordance with the terms and
conditions attached thereto. The Mortgage Company Pty Limited (ACN 070 968 302)
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, 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% of the principal amount of the Class A Notes (the
"Notes"). 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).
2. 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 (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 on May 13, 1999, 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 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
Xxxxx, Xxxxx & Xxxxx, 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, and the term
"Closing Date" means May 13, 1999.
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 April 8, 1999 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 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;
(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 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;
(c) this Agreement has been duly authorized, executed and delivered
by the Issuer Trustee;
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(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, each of 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
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
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 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 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
Trust 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
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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) PricewaterhouseCoopers LLP ("PricewaterhouseCoopers") 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 the 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 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.
(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") and compliance by the Underwriters
with clause 11 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;
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(m) 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
(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 "DESCRIPTION OF THE CLASS A
NOTES--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 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;
6
(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 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 by the Issuer
Trustee, 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 each of 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
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
issue and sale of the Notes and the performance by the Trust Manager 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
Constitution of the Trust Manager or any applicable law
7
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 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 Trust Manager 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) PricewaterhouseCoopers 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
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;
8
(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) 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 "DESCRIPTION OF CLASS A NOTES--Events
of Default; Rights Upon Events of Default" in the Prospectus.
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 April 8, 1999 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
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(e) 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.
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, provided that the
distribution of such copies shall be at the Underwriters' expense, 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 & Wood 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,
provided that the distribution of such copies shall be at the Underwriter's
expense;
(c) before filing any amendment or supplement to the Registration
Statement or the Prospectus, whether before or after the time the
Registration 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
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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;
(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
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, (ii) copies of
each amendment to any of the Basic Documents, (iii) 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
and Reuters], (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;
11
(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 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 Cedelbank 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 Notes not being assigned the ratings referred
to in Section 6(p) below; and
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
12
Representatives to make arrangements with DTC, Euroclear and Cedelbank
concerning the issue of the Notes and related matters;
(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 Notes not being assigned the
ratings referred to in Section 6(p) 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.
III. Westpac covenants and agrees with each of the several Underwriters that
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, 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 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:
(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
13
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 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, each of
PricewaterhouseCoopers and Deloitte & Touche shall have furnished to the
Underwriters letters, dated the respective dates of delivery thereof, in
form and substance satisfactory to the Underwriters;
(i) the Representatives shall have received on and as of the Closing
Date an opinion of Xxxxx & Wood LLP, counsel to the Underwriters, with
respect to the Registration Statement, the Prospectus and other related
matters as the Representatives
14
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;
(j) Xxxxx Xxxxx & Xxxxx, 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;
(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 Provider and Currency Swap
Providers 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") 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;
(r) the London Stock Exchange shall have agreed on or prior to the
Closing Date to list the Notes; and
15
(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 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 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 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, or any amendment or supplement thereto.
16
(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 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
17
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 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.
18
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 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.
19
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. FEE LETTER.
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 dated May 6, 1999, (attached as Exhibit 1 hereto)
executed by each Underwriter and Westpac.
12. 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 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
Notes governed by this Agreement resulted from:
(i) 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
20
(ii) 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
Cedelbank 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.
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.
(iii) 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.
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
21
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 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).
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 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.: (000) 000-0000); Attention: Syndicate Desk.
Notices to the Trust Manager shall be given to it at c/o Westpac Banking
Corporation, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (Facsimile
No. 212-682-0587), Attention: Xxxxx X. Love, Jr., with a copy to Xxxxx 0, 00
Xxxxxx
00
Xxxxx, Xxxxxx, XXX 0000, Attention: Xxxxx Xxxxxxxx; to the Issuer Trustee shall
be given to it at c/o Westpac Banking Corporation, 000 Xxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (Facsimile No. 212-682-0587), Attention: Xxxxx X. Love,
Jr., with a copy to Xxxxx 0, 00 Xxxx Xxxxxx, Xxxxxx, XXX 0000, Xxxxxxxxx,
Attention: Xxxxx Xxxxxxx and Xxx Xxxxxxxx; and to Westpac shall be given to it
at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (Facsimile No.
212-682-0587), Attention: Xxxxx X. Love, Jr.
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.
23
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:
-------------------------------------
Name:
Title:
WESTPAC SECURITIES ADMINISTRATION LIMITED
By:
-------------------------------------
Name:
Title:
WESTPAC BANKING CORPORATION
By:
-------------------------------------
Name:
Title:
24
Accepted: May __, 1999
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:
25
SCHEDULE I
PRINCIPAL AMOUNT OF CLASS A
UNDERWRITER NOTES TO BE PURCHASED
----------- ---------------------------
X.X. Xxxxxx Securities Inc.............................
Xxxxxx Xxxxxxx & Co. Incorporated......................
Westpac Banking Corporation............................
Deutsche Bank Securities, Inc..........................
Xxxxxxx Lynch, Pierce, Xxxxxx and Xxxxx
Incorporated...........................
Xxxxxxx Xxxxx Barney Inc...............................
Nomura International plc...............................
Total................................
26
