Exhibit 4.5
Agency Agreement
Agency Agreement
Westpac Securities Administration Limited
(Trustee)
Westpac Securitisation Management Pty Limited
(Trust Manager)
Citibank, N.A., London Branch
(Note Trustee)
Citibank, N.A., London Branch
(Principal Paying Agent)
Citibank, N.A., London Branch
(Agent Bank)
Citibank, N.A., London Branch
(Note Registrar)
Allens Xxxxxx Xxxxxxxx
The Chifley Tower
0 Xxxxxxx Xxxxxx
Xxxxxx XXX 0000
Xxxxxxxxx
Tel 00 0 0000 0000
Fax 00 0 0000 0000
(C) Copyright Allens Xxxxxx Xxxxxxxx 2002
Agency Agreement Allens Xxxxxx Xxxxxxxx
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Table of Contents
1. Definitions and Interpretation 2
1.1 Definitions 2
1.2 Note Trust Deed definitions 3
1.3 Interpretation 3
1.4 Document or agreement 3
1.5 Transaction Document 3
1.6 Trustee as trustee 3
2. Appointment of Paying Agents 4
3. Payment 4
3.1 Payment by Trustee 4
3.2 Confirmation 5
3.3 Payments by Paying Agents 5
3.4 Method of Payment - Book-Entry Notes 5
3.5 Method of payment - Definitive Notes 5
3.6 Late payment 5
3.7 Notice of non-receipt 6
3.8 Agency 6
3.9 Reimbursement 6
3.10 Method of payment 6
3.11 No fee 7
4. Repayment 7
5. Appointment of the Agent Bank as Reference Agent 7
6. Duties of the Agent Bank 8
7. Note Trustee 9
8. Early Redemption of Class A Notes 10
9. Pro Rata Redemption, Purchases And Cancellation Of Notes 10
10. Notices to Class A Noteholders 12
11. Documents and Forms 12
12. Authentication 12
13. Indemnity 12
14. The Note Register 14
14.1 Appointment of Note Xxxxxxxxx 00
14.2 Details to be kept on the Note Register 14
14.3 Payments of Principal and Interest 14
14.4 Place of keeping Register, copies and access 15
14.5 Details on Note Register conclusive 15
14.6 Alteration of details on Note Register 15
14.7 Rectification of Note Register 15
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14.8 Correctness of Note Register 16
15. Changes of Note Xxxxxxxxx 00
15.1 Removal 16
15.2 Resignation 16
15.3 Limitation 16
16. General 16
16.1 Communications to Class A Noteholders 16
16.2 Agency 17
16.3 Identity 17
16.4 No set-off 17
16.5 Reliance 18
16.6 Entitled to deal 18
16.7 Consultation 18
16.8 Duties 18
16.9 Income Tax Returns 18
16.10 Obligations of each Note Party 18
17. Changes in Paying Agents and Agent Bank 19
17.1 Removal 19
17.2 Resignation 19
17.3 Limitation 19
17.4 Delivery of amounts 20
17.5 Successor to Principal Paying Agent 20
17.6 Successor to Agent Bank 21
17.7 Successor to Note Xxxxxxxxx 00
17.8 Notice to Class A Noteholders 22
17.9 Change in Paying Office or Specified Office 23
18. Fees and Expenses 23
19. Waivers, Remedies Cumulative 24
20. Severability of Provisions 24
21. Assignments 24
22. Notices 25
22.1 General 25
22.2 Details 25
22.3 Communication through Principal Paying Agent 27
23. Limited Recourse 27
23.1 General 27
23.2 Liability of Trustee limited to its right to indemnity 27
23.3 Unrestricted remedies 28
23.4 Restricted remedies 28
24. Counterparts 29
25. Governing Law 29
26. Successor Trustee 29
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Date 12 March 2002
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Parties
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1. Westpac Securities Administration Limited (ABN 77 000 049 472)
incorporated in New South Wales of Xxxxx 0, 00 Xxxx Xxxxxx,
Xxxxxx in its capacity as trustee of the Series 0000-0X XXX
Xxxxx (the Trustee);
2. Westpac Securitisation Management Pty Limited (ABN 73 081 709
211) incorporated in the Australian Capital Territory of Xxxxx
00, 00 Xxxxxx Xxxxx, Xxxxxx as trust manager in relation to
the Series 0000-0X XXX Xxxxx (the Trust Manager);
3. Citibank, N.A., London Branch acting through its office at 0
Xxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX as principal paying agent
for the Class A Notes described below (the Principal Paying
Agent, which expression shall, wherever the context requires,
include any successor principal paying agent from time to time
and, except where the context otherwise requires, the
Principal Paying Agent and any additional paying agent or
paying agents are Paying Agents);
4. Citibank, N.A., London Branch acting through its office at
Xxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxx XX0 0XX as trustee for the
Class A Noteholders (the Note Trustee, which expression shall,
wherever the context requires, include any other trustee or
trustees from time to time under the Note Trust Deed);
5. Citibank, N.A., London Branch acting through its office at 0
Xxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX as reference agent in
relation to the Class A Notes described below (the Agent Bank,
which expression shall, whenever the context requires, include
any successor reference agent from time to time); and
6. Citibank, N.A., London Branch acting through its office at 0
Xxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX as note registrar for the
Class A Notes (the Note Registrar which expression shall,
wherever the context requires, include any successor note
registrar from time to time).
Recitals
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A The Trustee proposes to issue US$1,116,000,000 of mortgage
backed floating rate notes due 2033 comprising
US$1,116,000,000 Class A Notes (Class A Notes).
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B The Class A Notes will be represented initially by one or more
book-entry notes (the Book-Entry Notes).
C The Class A Notes, upon original issue, will be issued in the
form of typewritten Book-Entry Notes representing the
Book-Entry Notes. The Trustee shall, on the date of this deed,
deliver or arrange the delivery on its behalf of the
Book-Entry Notes to the Principal Paying Agent. The Book-Entry
Notes shall initially be registered on the Note Register in
the name of Cede & Co., as nominee of DTC as Clearing Agency,
and no Class A Note Owner will receive a Definitive Note
representing such Class A Note Owner's interest in such Class
A Note, except as provided in the Note Trust Deed.
D The Class A Notes will be constituted by the Note Trust Deed,
the Series Notice and the Master Trust Deed.
E The Class A Notes will be secured on the terms of the Security
Trust Deed.
F The Trustee wishes to appoint the Principal Paying Agent as
principal paying agent in respect of the Class A Notes and has
entered into this agreement to provide for the terms and
conditions of that appointment.
G The Trustee wishes to appoint the Agent Bank as its reference
agent in respect of the Class A Notes and has entered into
this agreement to provide for the terms and conditions of that
appointment.
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IT IS AGREED as follows.
1. Definitions and Interpretation
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1.1 Definitions
The following definitions apply unless the context requires otherwise.
Master Trust Deed means the Master Trust Deed for the WST Trusts dated
14 February 1997 between the Trustee as trustee and The Mortgage
Company Pty Limited.
Notice of Creation of Trust means the Notice of Creation of Trust dated
4 March 2002 issued under the Master Trust Deed in relation to the
Trust.
Paying Office means, in relation to a Paying Agent, the office of the
Paying Agent specified in the Class A Notes or otherwise under this
agreement or the Note Trust Deed as the office at which payments in
respect of the Class A Notes will be made as changed from time to time
in accordance with this agreement.
Series Notice means the Series Notice dated on or about the date of
this agreement relating to the Trust.
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Specified Office means, in relation to the Agent Bank, the office of
the Agent Bank specified under this Agreement as the office at which
the Agent Bank will carry out its duties under this agreement.
Trust means the trust known as the Series 0000-0X XXX Xxxxx established
under the Notice of Creation of Trust, the Master Trust Deed and the
Series Notice.
1.2 Note Trust Deed definitions
Words and expressions which are defined in the Note Trust Deed
(including by reference to another agreement and including the
Conditions) have the same meanings when used in this agreement unless
the context otherwise requires or unless otherwise defined in this
agreement.
1.3 Interpretation
Clause 1.2 of the Master Trust Deed applies to this agreement as if set
out in full and:
(a) a reference to an asset includes any real or personal, present
or future, tangible or intangible property or asset and any
right, interest, revenue or benefit in, under or derived from
the property or asset; and
(b) a reference to an amount for which a person is contingently
liable includes an amount which that person may become
actually or contingently liable to pay if a contingency
occurs, whether or not that liability will actually arise.
1.4 Document or agreement
A reference to:
(a) an agreement includes a Security Interest, Guarantee,
undertaking, deed, agreement or legally enforceable
arrangement whether or not in writing; and
(b) a document includes an agreement (as so defined) in writing or
a certificate, notice, instrument or document.
A reference to a specific agreement or document includes it as amended,
novated, supplemented or replaced from time to time, except to the
extent prohibited by this agreement.
1.5 Transaction Document
This agreement is a Transaction Document for the purposes of the Master
Trust Deed.
1.6 Trustee as trustee
(a) In this agreement, except where provided to the contrary:
(i) a reference to the Trustee is a reference to the
Trustee in its capacity as trustee of the Trust only,
and in no other capacity; and
(ii) a reference to the assets, business, property or
undertaking of the Trustee is a reference to the
assets, business, property or undertaking of the
Trustee only in the capacity described in
sub-paragraph (i) above.
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(b) The rights and obligations of the parties under this agreement
relate only to the Series 0000-0X XXX Xxxxx, and do not relate
to any other Trust (as defined in the Master Trust Deed).
2. Appointment of Paying Agents
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(a) Subject to the terms of this agreement, the Trustee (and, for
the purposes of clause 7 only, the Note Trustee) appoints the
Principal Paying Agent as its principal paying agent, and each
other Paying Agent as its paying agent, for making payments in
respect of the Class A Notes in accordance with the
Transaction Documents and the Conditions at their respective
Paying Offices. The Principal Paying Agent, and each other
Paying Agent appointed under this agreement, accepts that
appointment.
(b) Except in clause 17 and as the context otherwise requires,
references to the Principal Paying Agent are to it acting
solely through its Paying Office.
(c) If at any time there is more than one Paying Agent, the
obligations of the Paying Agents under this agreement shall be
several and not joint.
It is acknowledged and agreed that:
(i) each of the Principal Paying Agent and the other
Paying Agents is the agent of the Trustee (and, for
the purposes of clause 7 only, the Note Trustee) in
its capacity as trustee of the Trust (or Note
Trustee, as the case may be) only, and
(ii) despite anything else in this agreement, any other
Transaction Document or at law, the Trustee in its
personal capacity is not responsible for any
negligent act or negligent omission, fraudulent act
or fraudulent omission or any other act or omission
which, had it been done or not done by the Trustee
personally, would have amounted to a breach of trust
by the Trustee under any Transaction Document or at
law, of the Principal Paying Agent or any other
Paying Agent.
3. Payment
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3.1 Payment by Trustee
The Trustee shall not later than 10.00 am (London time) on each Payment
Date in accordance with clause 3.9, and subject to the Transaction
Documents and the relevant Conditions, pay to or to the order of, or
procure payment to or to the order of, the Principal Paying Agent the
amount in immediately available US$ funds as may be required (after
taking account of any cash then held by the Principal Paying Agent and
available for the purpose) to be made on that Payment Date under the
Series Notice and the Conditions.
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3.2 Confirmation
Not later than 4.00 pm (Sydney time) on each Determination Date, the
Trust Manager on behalf of the Trustee shall notify, or procure
notification to, the Principal Paying Agent and the Note Trustee in
writing of the amount of interest and principal payable in respect of
the Class A Notes on the Payment Date following that Determination
Date. The Trustee or the Trust Manager on its behalf shall also forward
to the Principal Paying Agent at that time confirmation that the
payments provided for in clause 3.1 will be made unconditionally.
3.3 Payments by Paying Agents
Subject to payment being duly made as provided in clause 3.1 (or to the
Principal Paying Agent otherwise being satisfied that the payment will
be duly made on the due date), and subject to clause 7, the Paying
Agents shall pay or cause to be paid on behalf of the Trustee on each
Payment Date the relevant amounts of principal and interest due in
respect of the Class A Notes in accordance with the Series Notice and
the Conditions.
3.4 Method of Payment - Book-Entry Notes
(a) The Principal Paying Agent shall cause all payments of
principal or interest (as the case may be) due in respect of
Class A Notes represented by a Book-Entry Note to be made to
DTC for credit to the account of the persons appearing from
time to time in the records of DTC as account holder with
respect to the Book-Entry Note.
(b) An annotation of the Principal Paying Agent, noting that a
payment or payments has or have been made under this clause
3.4, shall be sufficient evidence unless the contrary is
proved of the relevant payments having not been made.
3.5 Method of payment - Definitive Notes
Payments of principal or interest on the Definitive Notes, if any,
shall be made in accordance with the Conditions and the Series Notice.
3.6 Late payment
(a) If any payment under clause 3.1 is made late but otherwise in
accordance with the provisions of this agreement, each Paying
Agent shall make payments required to be made by it in respect
of the Class A Notes as provided in this clause 3. However,
unless and until the full amount of any payment in respect of
the Class A Notes required to be made under the Transaction
Documents has been made under clause 3.1 to or to the order of
the Principal Paying Agent, no Paying Agents shall be bound to
make a payment under clause 3 except to the extent that
non-payment is caused by fraud, wilful misconduct, negligence
or bad faith on the part of that Paying Agent or of any of its
directors, officers, employees or servants.
(b) If the Principal Paying Agent has not received on a Payment
Date the full amount of principal and interest then payable on
any Class A Note in accordance with the Series Notice and the
Conditions, but receives the full amount later, it shall:
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(i) forthwith upon full receipt notify in writing the
other Paying Agents (if any), the Trustee, the Note
Trustee, the Security Trustee and the Trust Manager;
and
(ii) as soon as practicable after such full receipt give
due notice, in accordance with Condition 12 (unless
the Note Trustee agrees otherwise), to Class A
Noteholders that it has received the full amount.
3.7 Notice of non-receipt
The Principal Paying Agent shall immediately notify by telex or
facsimile (if appropriate) the other Paying Agents (if any), the Note
Trustee, the Trustee, the Security Trustee and the Trust Manager if the
full amount of any payment of principal or interest required to be made
by the Series Notice and the Conditions in respect of the Class A Notes
is not unconditionally received by it or to its order in accordance
with this agreement.
3.8 Agency
The Principal Paying Agent shall hold as agent for the Note Trustee and
the Class A Noteholders all sums held by it for the payment of
principal and interest with respect to the Class A Notes until all
relevant sums are paid to the Note Trustee or the Class A Noteholders
or otherwise disposed of in accordance with the Note Trust Deed.
3.9 Reimbursement
The Principal Paying Agent shall (provided that it has received cleared
funds from the Trustee) on demand promptly reimburse the other Paying
Agents (if any) for payments of principal and interest properly made by
that Paying Agent in accordance with the Conditions and this agreement.
The Trustee shall not be concerned with the apportionment of any moneys
between the Principal Paying Agent and the other Paying Agents (if any)
and payment to the Principal Paying Agent of any moneys due to the
Paying Agents shall operate as a good discharge to the Trustee in
respect of such moneys.
3.10 Method of payment
(a) All sums payable by the Trustee to the Principal Paying Agent
under this agreement shall, unless otherwise provided and
subject to the Currency Swaps, be paid by the Currency Swap
Providers on behalf of the Trustee in US$ to the account with
the bank outside Australia as the Principal Paying Agent may
from time to time notify in writing to the Trustee and the
Note Trustee. Those sums shall be held by the Principal Paying
Agent as agent for the Class A Noteholders for payment to the
Class A Noteholders and, failing that payment within the
designated periods of prescription specified in Condition 8,
or upon the bankruptcy, insolvency, winding up or liquidation
of the Principal Paying Agent or default being made by the
Principal Paying Agent in the payment of any amounts in
respect of principal or interest in accordance with this
agreement, for repayment to the Trustee (subject to clause 4).
On repayment in full in accordance with clause 4 to the
Trustee all liabilities of the Principal Paying Agent with
respect to those moneys shall cease. The Trustee may, promptly
after each Payment Date, request confirmation from the
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Principal Paying Agent that the Principal Paying Agent has
paid the relevant amount to DTC. The Principal Paying Agent
will countersign and promptly return any such confirmation
requested by the Trustee.
(b) Subject to the terms of this agreement, the Principal Paying
Agent shall be entitled to deal with moneys paid to it under
this agreement in the same manner as other moneys paid to it
as a banker by its customers. The Principal Paying Agent shall
be entitled to retain for its own account any interest earned
on the sums from time to time credited to the separate account
referred to in paragraph (a) and it need not segregate such
sums from other amounts held by it.
(c) The payment by the Trustee of its A$ payment obligations on
each Payment Date under the Series Notice and the Conditions
to the Currency Swap Providers shall be a good discharge to
the Trustee.
(d) The Trustee shall not be liable for any act or omission or
default of any Currency Swap Provider or any Paying Agents
under this Agreement.
3.11 No fee
Subject to clause 18, no Paying Agent will charge any commission or fee
in relation to any payment under this agreement.
4. Repayment
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(a) Immediately on any entitlement to receive principal or
interest under any Class A Note becoming void under the
Conditions, the Principal Paying Agent shall repay to the
Trustee the amount which would have been due in respect of
that principal or interest if it had been paid before the
entitlement became void, together with any fees applicable to
that payment or entitlement (pro rated as to the amount and
time) to the extent already paid under clause 18.
(b) Despite paragraph (a) the Principal Paying Agent shall not be
obliged to make any repayment to the Trustee so long as any
fees and expenses which should have been paid to or to the
order of the Principal Paying Agent or, if applicable, the
Note Trustee by the Trustee remain unpaid.
5. Appointment of the Agent Bank as Reference Agent
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(a) The Trustee (and, for the purposes of clause 7 only, the Note
Trustee) appoints the Agent Bank as its reference agent in
respect of the Class A Notes upon the terms and conditions set
forth in this agreement and the Agent Bank accepts that
appointment.
(b) It is acknowledged and agreed that:
(i) the Agent Bank is the agent of the Trustee (and, for
the purposes of clause 7 only, the Note Trustee) in
its capacity as trustee of the Trust (or Note
Trustee, as the case may be) only, and
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(ii) despite anything else in this agreement, any other
Transaction Document or at law, the Trustee in its
personal capacity is not responsible for any
negligent act or negligent omission, fraudulent act
or fraudulent omission or any other act or omission
of the Agent Bank which, had it been done or not done
by the Trustee personally, would have amounted to a
breach of trust by the Trustee under any Transaction
Document or under general principles of law.
6. Duties of the Agent Bank
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(a) The Agent Bank shall in relation to the Class A Notes until
their final maturity or such earlier date on which the Class A
Notes are due and payable in full and in either case until the
Trustee has paid all amounts in relation to the Class A Notes
to the Principal Paying Agent or, if applicable, the Note
Trustee:
(i) perform such duties at its Specified Offices in
London as are set forth in this agreement and in the
Conditions and any other duties which are reasonably
incidental at the request of the Trustee, the Trust
Manager, the Note Trustee or the Principal Paying
Agent;
(ii) determine LIBOR for each Coupon Period, and calculate
the relevant Coupon on Class A Notes, in the manner
set out in Condition 4 and confirm with the Currency
Swap Providers that the LIBOR as determined under
this agreement is the same as LIBOR determined by the
Currency Swap Providers under the related Currency
Swap;
(iii) notify the Trustee, the Trust Manager, the Note
Trustee, the Paying Agents and the London Stock
Exchange and any other stock exchange, competent
listing authority and/or quotation system on which
the Class A Note are listed, quoted or traded (for so
long as the Class A Notes are listed, quoted and/or
traded on or by the London Stock Exchange or such
other stock exchange, competent listing authority
and/or quotation system) by telex or facsimile
transmission on or as soon as possible after the
first day of that Coupon Period, of the Coupon Rate
and the Coupon so determined by it in relation to
that Coupon Period, specifying to the Trustee the
rates upon which they are based and (where relevant)
the names of the banks quoting those rates; and
(iv) cause the Coupon Rates applicable to the Class A
Notes and each Coupon for each Coupon Period together
with the relevant Payment Date, to be published (at
the expense of the Trustee) in accordance with the
provisions of Conditions 4 and 12, on or as soon as
possible after the commencement of the relevant
Interest Period unless the Note Trustee otherwise
agrees, provided that the Trustee and the Note
Trustee shall use their reasonable endeavours to
co-operate with the Agent Bank in order to effect
that publication.
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(b) The Coupon and relevant Payment Date published under
sub-paragraph (iv) may subsequently be amended (or appropriate
alternative arrangements made by way of adjustment) without
notice to Class A Noteholders in the event of a shortening of
the Interest Period.
7. Note Trustee
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(a) At any time after an Event of Default in respect of the Class
A Notes has occurred, or at any time after Definitive Notes
have not been issued when so required in accordance with the
Conditions, the Note Trustee may:
(i) by notice in writing to the Trustee, the Trust
Manager, the Principal Paying Agent, the other Paying
Agents, the Note Registrar, and the Agent Bank
require the Principal Paying Agent, the other Paying
Agents, the Note Registrar and the Agent Bank either:
(A) (1) to act as Principal Paying Agent and
Paying Agents, the Note Registrar and Agent
Bank respectively of the Note Trustee on the
terms of this agreement in relation to
payments to be made by or on behalf of the
Note Trustee under the terms of the Note
Trust Deed, except that the Note Trustee's
liability under any provisions of this
agreement for the indemnification of the
Paying Agents, the Note Registrar and Agent
Bank shall be limited to any amount for the
time being held by the Note Trustee on the
trusts of the Note Trust Deed and which is
available to be applied by the Note Trustee
for that purpose; and
(2) hold all Definitive Notes, and all amounts,
documents and records held by them in
respect of the Class A Notes, on behalf of
the Note Trustee; or
(B) to deliver up all Definitive Notes and all
amounts, documents and records held by them in
respect of the Class A Notes, to the Note Trustee
or as the Note Trustee shall direct in that
notice, other than any documents or records which
the relevant Paying Agent, the Note Registrar or
Agent Bank is obliged not to release by any law
or regulation; and
(ii) by notice in writing to the Trustee require it to
make (or arrange to be made) all subsequent payments
in respect of the Class A Notes to the order of the
Note Trustee and not to the Principal Paying Agent
and, with effect from the issue of that notice to the
Trustee and until that notice is withdrawn clause 2.3
of the Note Trust Deed shall not apply.
(b) The payment by the Trustee of its payment obligations on each
Payment Date under the Series Notice and the Conditions to the
Note Trustee in accordance with paragraph (a) shall be a good
discharge to the Trustee and the Trustee shall not be
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liable for any act or omission or default of the Note Trustee
during the period it is required to make payment to the Note
Trustee under paragraph (a).
(c) The Note Trustee shall forthwith give written notice to the
Trust Manager, the Trustee, the Security Trustee, the Agent
Bank, the Note Registrar and the Principal Paying Agent of any
change in the Authorised Signatories of the Note Trustee.
(d) If the Agent Bank at any time for any reason does not
determine the Coupon Rate or calculate the Coupon for a Class
A Note, the Note Trustee shall do so and each such
determination or calculation shall be deemed to have been made
by the Agent Bank. In doing so, the Note Trustee shall apply
the provisions of clause 6, with any necessary consequential
amendments, to the extent that, in its opinion, it can do so,
and, in all other respects it shall do so in such a manner as
it shall deem fair and reasonable in all the circumstances.
8. Early Redemption of Class A Notes
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(a) If the Trustee intends to redeem all (but not some only) of
the Class A Notes prior to their Maturity Date pursuant to
Condition 5.15 (which it may only do at the direction of the
Trust Manager), the Trust Manager shall give not less than 5
days' prior written notice to the Principal Paying Agent and
the Note Trustee before giving the requisite period of notice
to the relevant Class A Noteholders in accordance with
Condition 5.15 and stating the date on which such Class A
Notes are to be redeemed.
(b) The Principal Paying Agent shall, on receipt of a notice under
paragraph (a):
(i) notify DTC of the proposed redemption, specifying:
(A) the aggregate Invested Amount of the Class A
Notes to be redeemed;
(B) the amount of principal to be repaid in
relation to the Class A Notes; and
(C) the date on which the Class A Notes are to
be redeemed; and
(ii) promptly and in accordance with the Conditions on
behalf of and at the expense of the Trustee publish
the notices required in connection with that
redemption.
9. Pro Rata Redemption, Purchases And Cancellation Of Notes
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(a) If the Trustee is required to redeem some (but not all) of the
Class A Notes prior to their Maturity Date pursuant to
Condition 5.1 the Trust Manager shall on each Determination
Date give prior written notice to the Agent Bank, the
Principal Paying Agent, the Note Registrar and the Note
Trustee, as provided in Condition 5.
(b) On receipt of a notice under paragraph (a), the Principal
Paying Agent shall notify DTC of the proposed redemption,
specifying in each case the aggregate principal
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amount of the Class A Notes to be redeemed and the date on
which such Class A Notes are to be redeemed.
(c) For so long as the Class A Notes are listed, quoted and/or
traded on or by the London Stock Exchange or any other stock
exchange, competent listing authority and/or quotation system,
the Trust Manager on behalf of the Trustee shall ensure that
notice of the matters referred to in paragraph (a) is provided
to the London Stock Exchange and any other stock exchange,
competent listing authority and/or quotation system on or by
which the Class A Notes are from time to time listed, quoted
and/or traded (if required).
(d) The Trust Manager shall, on (or as soon as practicable after)
each Determination Date in respect of the Class A Notes,
calculate:
(i) the amount of principal to be repaid in respect of
each Class A Note due on the Payment Date next
following that Determination Date;
(ii) the Invested Amount of each Class A Note on the first
day of the next following Coupon Period (after
deducting any principal due to be made on the next
Payment Date); and
(iii) the Bond Factor for the Class A Notes as of the
Notice Date,
and shall forthwith notify or cause to be notified in writing
to the Trustee, the Agent Bank, the Note Trustee, the
Principal Paying Agent and (for so long as the Class A Notes
are listed, quoted and/or traded on or by the London Stock
Exchange or any other stock exchange, competent listing
authority and/or quotation system) the London Stock Exchange
and such other stock exchange, competent listing authority
and/or quotation system of each of those determinations in
accordance with the Series Notice. On receipt of that notice,
the Principal Paying Agent shall give a copy of that notice to
DTC in accordance with the requirements of the Note Depository
Agreement.
(e) The Trust Manager will immediately cause details of each
determination under paragraph (d) to be published in
accordance with Condition 12 by the Notice Date immediately
preceding the relevant Payment Date.
(f) If no principal is due to be repaid on the Class A Notes on
any Payment Date, the Trust Manager shall give notice or shall
cause a notice to this effect to be given to the Class A
Noteholders in accordance with Condition 12.
(g) If any Class A Notes are redeemed in whole or in part in
accordance with the Conditions and the Transaction Documents,
the Principal Paying Agent will, if any Book-Entry Notes are
still outstanding in relation to those Notes, cause the Note
Registrar to record all relevant details in the Note Register.
The Principal Paying Agent shall, if requested in writing, as
soon as possible furnish to each of the Trustee and the Note
Trustee a certificate setting out the aggregate Invested
Amount and Stated Amount of Class A Notes which have been
redeemed or the aggregate Invested Amount and Stated Amount of
Class A Notes which have been purchased. If the Invested
Amount of a Book-Entry Note is reduced to nil, the Principal
Paying Agent shall destroy the relevant Book-Entry Note and,
if requested
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in writing, issue a destruction certificate forthwith to the
Note Trustee and shall send a copy of that certificate to the
Trustee, the Trust Manager and the Note Trustee.
10. Notices to Class A Noteholders
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(a) At the request and expense of the Trustee, the Principal
Paying Agent shall arrange for the delivery of all notices and
the Noteholders Report to Class A Noteholders in accordance
with the Conditions.
(b) The Principal Paying Agent shall promptly send to the Note
Trustee one copy of the form of every notice given to Class A
Noteholders in accordance with the Conditions.
11. Documents and Forms
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(a) The Trust Manager shall provide to the Principal Paying Agent
for distribution to each Paying Agent sufficient copies of all
documents required by the Conditions or the Note Trust Deed to
be available to Class A Noteholders for issue or inspection
(including the Note Trust Deed, the Master Trust Deed and the
Series Notice).
(b) The Trust Manager and the Trustee shall provide to the Agent
Bank such documents as the Agent Bank may reasonably require
from the Trustee in order for the Agent Bank properly to
fulfil its duties in respect of the Class A Notes.
12. Authentication
--------------------------------------------------------------------------------
The Principal Paying Agent shall authenticate or cause to be
authenticated the Book-Entry Notes and (if required) the Definitive
Notes (whether on initial issue or on replacement).
13. Indemnity
--------------------------------------------------------------------------------
(a) Subject to paragraph (b) and clause 23, the Trustee shall
indemnify each Paying Agent, the Note Registrar and the Agent
Bank against any loss, damages, proceeding, liability, cost,
claim, action, demand or expense (including, without
limitation, legal costs and expenses and any applicable value
added or similar tax thereon) (each, an Expense) which the
Paying Agent may incur or which may be made against the Paying
Agent, the Note Registrar or Agent Bank as a result of or in
connection with the Paying Agent's, the Note Registrar's or
Agent Bank's (as the case may be) appointment or the proper
exercise of the Paying Agent's, Note Registrar's or Agent
Bank's powers and proper performance of the Paying Agent's,
Note Registrar's or Agent Bank (as the case may be) duties
under this agreement, notwithstanding the resignation or
removal of that Paying Agent, the Note Registrar or the Agent
Bank in accordance with clause 17 (including any liability in
respect of payment of a cheque drawn by that Paying Agent or
Agent Bank (as the case may be) where the cheque is collected
or sued upon or an attempt at collection
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is made after the amount in respect of which it is paid has
been returned to the Trustee under clause 4).
(b) The indemnity in paragraph (a) applies to any Expense of a
Paying Agent, the Note Registrar or the Agent Bank (as the
case may be) only:
(i) to the extent the Expense does not result from the
breach by the Paying Agent, the Note Registrar or the
Agent Bank (as the case may be) of the terms of this
agreement or from the Paying Agent's, the Note
Registrar's or the Agent Bank's own fraud, wilful
misconduct, negligence or bad faith or that of its
directors, officers or employees or servants;
(ii) if the Paying Agent, the Note Registrar or the Agent
Bank (as the case may be) gives notice of the Expense
to the Trustee and the Trust Manager as soon as the
Paying Agent, the Note Registrar or the Agent Bank
(as the case may be) becomes aware of the Expense;
and
(iii) if and whenever the Trustee or the Trust Manager so
requires, the Paying Agent, the Note Registrar or the
Agent Bank (as the case may be) takes any actions or
proceedings under the control and at the expense of
the Trustee as the Trustee may reasonably require to
avoid, resist or compromise that Expense.
(c) Each of the Agent Bank, the Note Registrar and the Paying
Agents severally indemnifies the Trustee and the Trust Manager
against any Expense which the Trustee or the Trust Manager (as
the case may be) may incur or which may be made against it as
a result of a breach by the Agent Bank, the Note Registrar or
the Paying Agent (as the case may be) of the terms of this
agreement or its own fraud, wilful misconduct, negligence or
bad faith or that of its directors, officers or employees or
servants, including any failure to obtain and maintain in
existence any Authorisation required by it for the assumption,
exercise and performance of its powers and duties under this
agreement provided always that, notwithstanding the foregoing,
under no circumstances will any of the Agent Bank, the Note
Registrar or the Paying Agents be liable to the Trustee and/or
the Trust Manager or any other person for any consequential
loss (being loss of business, goodwill, opportunity or profit,
and for the avoidance of doubt the liability of the Trustee to
pay any Coupon on a Note under clause 6.10 of the Series
Notice does not constitute a consequential loss) howsoever
incurred or arising, even if advised of the possibility of
such loss or damage.
(d) Each indemnity, reimbursement or similar obligation in this
clause:
(i) is a continuing obligation;
(ii) is a separate and independent obligation;
(iii) is payable under clause 6.10 of the Series Notice on
the Payment Date following demand; and
(iv) survives termination or discharge of this agreement.
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14. The Note Register
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14.1 Appointment of Note Registrar
The Trustee appoints Citibank, N.A., London Branch to be the initial
Note Registrar. Citibank, N.A., London Branch accepts that appointment.
14.2 Details to be kept on the Note Register
The Note Registrar shall keep the Note Register with respect to the
Trust in accordance with the terms of this agreement and the Note Trust
Deed, on which shall be entered the following information relating to
the Trust:
(a) (name) the name of the Trust;
(b) (creation) the date of the creation of the Trust;
(c) (Issue Dates) the Issue Dates for Class A Notes issued in
relation to the Trust;
(d) (Initial Invested Amount) the total Initial Invested Amount of
Class A Notes issued on each such Issue Date;
(e) (Invested Amount) the Invested Amount of each Class A Note
from time to time;
(f) (Stated Amount) the Stated Amount of each Class A Note from
time to time;
(g) (details of Noteholders) the name and address of each Class A
Noteholder;
(h) (number of Notes) the number of Notes held by each Class A
Noteholder;
(i) (date of entry) the date on which a person was entered as the
holder of Class A Notes;
(j) (date of cessation) the date on which a person ceased to be a
Class A Noteholder;
(k) (account) the account to which any payments due to a Class A
Noteholder are to be made (if applicable);
(l) (payments) a record of each payment in respect of the Class A
Notes; and
(m) (additional information) such other information as:
(i) is required by the Series Notice;
(ii) the Note Registrar considers necessary or desirable;
or
(iii) the Trust Manager or the Trustee reasonably requires.
14.3 Payments of Principal and Interest
(a) Any payment of principal or interest on any Class A Note shall
be endorsed by the Note Registrar on the Note Register. In the
case of payments of principal, the Invested Amount of the
Class A Notes shall be reduced for all purposes by the amount
so paid and endorsed on the Note Register. Any such record
shall be prima facie evidence that the payment in question has
been made.
(b) If the amount of principal or interest (as the case may be)
due for payment on any Class A Note is not paid in full
(including Carryover Charge Offs and by reason of a
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deduction or withholding) the Note Registrar shall endorse a
record of that shortfall on the Note Register.
14.4 Place of keeping Register, copies and access
The Note Register shall be:
(a) (place kept) kept at the principal office of the Note
Registrar or at such place as the Trustee, the Trust Manager
and the Note Registrar may in writing agree;
(b) (access to Trust Manager and Auditor) open to the Trustee, the
Trust Manager, the Note Trustee and the Auditor of the Trust
to inspect during normal business hours;
(c) (inspection by Class A Noteholders) open for inspection by the
Note Trustee or a Class A Noteholder during normal business
hours but, in the case of a Class A Noteholder, only in
respect of information relating to that Class A Noteholder;
and
(d) (not for copying) not available to be copied by any person
(other than the Trustee, the Trust Manager or the Note
Trustee) except in compliance with such terms and conditions
(if any) as the Trust Manager, the Trustee and the Note
Registrar in their absolute discretion nominate from time to
time.
14.5 Details on Note Register conclusive
(a) (Reliance on Register) The Trustee shall be entitled to rely
on the Note Register as being a correct, complete and
conclusive record of the matters set out in it at any time and
whether or not the information shown in the Note Register is
inconsistent with any other document, matter or thing. The
Trustee is not liable to any person in any circumstances
whatsoever for any inaccuracy in, or omission from, the Note
Register.
(b) (No trusts etc) The Note Registrar shall not be obliged to
enter on the Note Register notice of any trust, Security
Interest or other interest whatsoever in respect of any Class
A Notes and the Trustee shall be entitled to treat a Class A
Noteholder as the absolute owner of Class A Notes and the
Trustee shall not be bound or affected by any trust affecting
the ownership of any Class A Notes unless ordered by a court
or required by statute.
14.6 Alteration of details on Note Register
On the Note Registrar being notified of any change of name or address
or payment or other details of a Class A Noteholder by the Class A
Noteholder, the Note Registrar shall promptly alter the Note Register
accordingly.
14.7 Rectification of Note Register
If:
(a) an entry is omitted from the Note Register;
(b) an entry is made in the Note Register otherwise than in
accordance with this deed;
(c) an entry wrongly exists in the Note Register;
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(d) there is an error or defect in any entry in the Note Register;
or
(e) default is made or unnecessary delay takes place in entering
in the Note Register that any person has ceased to be the
holder of Class A Notes,
the Note Registrar may, without notice to any party, rectify the same.
14.8 Correctness of Note Register
The Note Registrar shall not be liable for any mistake on the Note
Register or in any purported copy except to the extent that the mistake
is attributable to its fraud, negligence or wilful default.
15. Changes of Note Registrar
--------------------------------------------------------------------------------
15.1 Removal
The Trustee (or the Trust Manager on its behalf after advising the
Trustee) may terminate the appointment of the Note Registrar with the
prior written approval of the Note Trustee (which approval must not be
unreasonably withheld or delayed), with effect not less than 60 days
from that notice.
15.2 Resignation
Subject to this clause 15 the Note Registrar may resign its appointment
at any time by giving to the Trustee, the Trust Manager and the Note
Registrar not less than 60 days written notice to that effect.
15.3 Limitation
Despite clauses 15.1 and 15.2:
(a) no resignation by or termination of the appointment of the
Note Registrar shall take effect until a new Note Registrar
approved in writing by the Note Trustee has been appointed on
terms previously approved in writing by the Note Trustee (in
each case, that approval not to be unreasonably withheld or
delayed); and
(b) the appointment of a new Note Registrar shall be on the terms
and subject to the conditions of this agreement and the
outgoing Note Registrar shall co-operate fully to do all
further acts and things and execute any further documents as
may be necessary or desirable to give effect to the
appointment of the new Note Xxxxxxxxx.
00. General
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16.1 Communications to Class A Noteholders
The Principal Paying Agent shall, upon receipt from the Trustee, Trust
Manager, Security Trustee or Note Trustee of any communication to be
delivered to Class A Noteholders or Class A Note Owners, including any
communications pursuant to clauses 3.3, 7.1 18(a), 22.1, 23.2 or
32.2(b) of the Note Trust Deed or any other solicitation of notice from
or consent of the Class A Noteholders or Note Owners pursuant to or
relating to the Note
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Trust Deed or this agreement, forward such communications to the Class
A Noteholders, along with instructions that the responses relating to
such communications be returned to the Principal Paying Agent. Such
communication shall include the date upon which the response to such
solicitation shall be delivered (the Response Date). The Principal
Paying Agent shall treat any Noteholder who has not delivered its
response as of the Response Date as having withheld its consent to the
proposed action. The Principal Paying Agent shall notify the Trustee,
Trust Manager and Note Trustee in writing of the results of any such
solicitations of consent.
16.2 Agency
Subject to any other provision of this agreement, each Note Party shall
act solely for and as agent of the Trustee (or, pursuant to clause 7
only, the Note Trustee) and shall not have any obligations towards or
relationship of agency or trust with any person entitled to receive
payments of principal and/or interest on the Class A Notes and shall be
responsible only for performance of the duties and obligations
expressly imposed upon it in this agreement.
16.3 Identity
Each Paying Agent shall (except as ordered by a court of competent
jurisdiction or as required by law) be entitled to treat the person:
(a) who is, while a Book-Entry Note remains outstanding, the
registered owner of that Book-Entry Note as the person
entitled to receive payments of principal or interest (as
applicable) and each person shown in the records of the DTC as
the holder of any Class A Note represented by a Book-Entry
Note shall be entitled to receive from the registered owner of
that Book-Entry Note any payment so made in accordance with
the respective rules and procedures of the DTC and on the
terms and subject to the conditions of that Book-Entry Note;
(b) who is the registered owner of any relevant Definitive Note as
the absolute owner or owners of that Definitive Note (whether
or not that Definitive Note is overdue and despite any notice
of ownership or writing on it or any notice of previous loss
or theft or of any trust or other interest in it); or
(c) who, when a Book-Entry Note in respect of any Class A Note is
no longer outstanding but Definitive Notes in respect of the
Class A Notes have not been issued, is for the time being the
Note Trustee, as the person entrusted with the receipt of
principal or interest, as applicable, on behalf of the
relevant Class A Noteholders,
and in all cases and for all purposes despite any notice to the
contrary and shall not be liable for so doing.
16.4 No set-off
No Paying Agent shall exercise any right of set-off, withholding,
counterclaim or lien against, or make any deduction in any payment to,
any person entitled to receive amounts of principal or interest on the
Class A Notes in respect of moneys payable by it under this agreement.
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16.5 Reliance
Each Note Party shall be protected and shall incur no liability for or
in respect of any action taken, omitted or suffered by it in reliance
upon any instruction, request or order from the Trustee or the Trust
Manager or in reliance upon any Class A Note or upon any notice,
resolution, direction, consent, certificate, affidavit, statement or
other paper or document reasonably believed by it to be genuine and to
have been delivered, signed or sent by the proper party or parties.
16.6 Entitled to deal
A Note Party shall not be precluded from acquiring, holding or dealing
in any Class A Notes or from engaging or being interested in any
contract or other financial or other transaction with the Trustee, the
Trust Manager or the Servicer as freely as if it were not an agent of
the Trustee under this agreement and in no event whatsoever (other than
fraud, wilful misconduct, negligence or bad faith) shall any Note Party
be liable to account to the Trustee or any person entitled to receive
amounts of principal or interest on the Class A Notes for any profit
made or fees or commissions received in connection with this agreement
or any Class A Notes.
16.7 Consultation
Each Note Party may consult as to legal matters with lawyers selected
by it, who may be employees of or lawyers to the Trustee, the Trust
Manager or the relevant Paying Agent. Where that consultation is likely
to give rise to significant Expenses (as that term is defined in clause
13), the relevant Note Party shall where reasonably practical notify
the Trustee and Trust Manager 10 days prior to that consultation.
16.8 Duties
Each Note Party shall perform the duties, and only the duties,
contained in or reasonably incidental to this agreement and the
Conditions and in the Class A Notes and no implied duties or
obligations (other than general laws as to agency) shall be read into
this agreement or the Class A Notes against any Note Party. A Note
Party shall not be required to take any action under this agreement
which would require it to incur any expense or liability, for which (in
its reasonable opinion) either it would not be reimbursed within a
reasonable time or in respect of which it has not been indemnified to
its satisfaction.
16.9 Income Tax Returns
The Principal Paying Agent shall, subject always to compliance with
mandatory provisions of law, deliver to each Class A Noteholder such
information as may be reasonably required to enable such Class A
Noteholder to prepare its federal and state income tax returns.
16.10 Obligations of each Note Party
Each Note Party represents and warrants that it is duly qualified to
assume its obligations under this agreement and has obtained all
necessary approvals required to perform its obligations under this
agreement.
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17. Changes in Paying Agents and Agent Bank
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17.1 Removal
The Trustee (or the Trust Manager on its behalf after advising the
Trustee) may at any time:
(a) with the prior written approval of the Note Trustee appoint:
(i) additional or alternative Paying Agents; or
(ii) an alternative Agent Bank;
(b) subject to this clause 17, terminate the appointment of any
Paying Agent or the Agent Bank by giving written notice to
that effect to each Designated Rating Agency, the Note
Trustee, the Agent Bank (if its appointment is to be
terminated), the Principal Paying Agent and (if different) the
Paying Agent whose appointment is to be terminated:
(i) with effect immediately on that notice, if any of the
following occurs in relation to the Paying Agent or
Agent Bank (as the case may be):
(A) an Insolvency Event has occurred in relation
to the Paying Agent or Agent Bank;
(B) the Paying Agent or Agent Bank has ceased
its business;
(C) the Paying Agent or Agent Bank has failed to
remedy within fourteen days after prior
written notice by the Trustee or Trust
Manager any material breach of this
agreement on the part of the Paying Agent;
or
(ii) otherwise, with the prior written approval of the
Note Trustee (which approval must not be unreasonably
withheld or delayed) with effect not less than 60
days' from that notice, which date shall be not less
than 30 days before nor 30 days after any due date
for payment of any Class A Notes.
17.2 Resignation
Subject to this clause 17, a Paying Agent or the Agent Bank may resign
its appointment under this agreement at any time by giving to the
Trustee, the Trust Manager, each Designated Rating Agency and (where a
Paying Agent is resigning and the Paying Agent is not the Principal
Paying Agent) the Principal Paying Agent not less than 60 days' written
notice to that effect, which notice shall expire not less than 30 days
before or 30 days after any due date for payment of any Class A Notes.
17.3 Limitation
Despite clauses 17.1 and 17.2:
(a) no resignation by or termination of the appointment of the
Principal Paying Agent shall take effect until a new Principal
Paying Agent approved in writing by the Note Trustee has been
appointed on terms previously approved in writing by the Note
Trustee (in each case, that approval not to be unreasonably
withheld or delayed);
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(b) if any Paying Agent or the Agent Bank resigns in accordance
with clause 17.2, but by the day falling 15 days before the
expiry of any notice under clause 17.2 the Trustee or the
Trust Manager has not appointed a new Paying Agent or Agent
Bank, then the relevant Paying Agent or Agent Bank (as the
case may be) may appoint in its place any reputable bank or
trust company of good standing approved in writing by the Note
Trustee and appointed on terms previously approved in writing
by the Note Trustee (in each case, that approval not to be
unreasonably withheld or delayed);
(c) no resignation by or termination of the appointment of any
Paying Agent shall take effect if as a result of that
resignation or termination there would cease to be a Paying
Agent which has a Paying Office in the City of New York and
London and, if the conclusions of the ECOFIN Council Meeting
of 26-27 November, 2000 are implemented, there will at all
times be a Paying Agent (or the Principal Paying Agent) with a
Specified Office in a member state of the European Union that
will not be obliged to withhold or deduct tax pursuant to any
directive introduced to implement such conclusions;
(d) no appointment or termination of the appointment of any Paying
Agent shall take effect unless and until notice has been given
to the Class A Noteholders in accordance with the Conditions;
(e) no resignation by or termination of the appointment of the
Agent Bank shall take effect until a new Agent Bank having its
Specified Office in London has been appointed; and
(f) the appointment of any additional Paying Agent shall be on the
terms and subject to the conditions of this agreement and each
of the parties to this agreement shall co-operate fully to do
all further acts and things and execute any further documents
as may be necessary or desirable to give effect to the
appointment of the Paying Agent (which shall not, except in
the case of an appointment under clause 17.1(a) or a
termination under clause 17.1(b)(ii), be at the cost of the
Trustee or Trust Manager).
17.4 Delivery of amounts
If the appointment of the Principal Paying Agent terminates, the
Principal Paying Agent shall, on the date on which that termination
takes effect, pay to the successor Principal Paying Agent any amount
held by it for payment of principal or interest in respect of any Class
A Note and shall deliver to the successor Principal Paying Agent all
records maintained by it pursuant to this agreement and all documents
(including any Definitive Notes) held by it.
17.5 Successor to Principal Paying Agent
(a) On the execution by the Trustee, the Trust Manager and any
successor Principal Paying Agent of an instrument effecting
the appointment of that successor Principal Paying Agent, that
successor Principal Paying Agent shall, without any further
act, deed or conveyance, become vested with all the authority,
rights, powers, trusts,
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immunities, duties and obligations of its predecessor with
effect as if originally named as Principal Paying Agent in
this agreement and that predecessor, on payment to it of the
pro rata proportion of its administration fee and
disbursements then unpaid (if any), shall have no further
liabilities under this agreement, except for any accrued
liabilities arising from or relating to any act or omission
occurring prior to the date on which the successor Principal
Paying Agent is appointed.
(b) Any corporation:
(i) into which the Principal Paying Agent is merged;
(ii) with which the Principal Paying Agent is
consolidated;
(iii) resulting from any merger or consolidation to which
the Principal Paying Agent is a party;
(iv) to which the Principal Paying Agent sells or
otherwise transfers all or substantially all the
assets of its corporate trust business,
shall, on the date when that merger, conversion,
consolidation, sale or transfer becomes effective and to the
extent permitted by applicable law, become the successor
Principal Paying Agent under this agreement without the
execution or filing of any agreement or document or any
further act on the part of the parties to this agreement,
unless otherwise required by the Trustee or the Trust Manager,
and after that effective date all references in this agreement
to the Principal Paying Agent shall be references to that
corporation.
17.6 Successor to Agent Bank
(a) On the execution by the Trustee, the Trust Manager and any
successor Agent Bank of an instrument effecting the
appointment of that successor Agent Bank, that successor Agent
Bank shall, without any further act, deed or conveyance,
become vested with all the authority, rights, powers, trusts,
immunities, duties and obligations of its predecessor with
effect as if originally named as Agent Bank in this agreement
and that predecessor, on payment to it of the pro rata
proportion of its administration fee and disbursements then
unpaid (if any), shall have no further liabilities under this
agreement, except for any accrued liabilities arising from or
relating to any act or omission occurring prior to the date on
which the successor Agent Bank is appointed.
(b) Any corporation:
(i) into which the Agent Bank is merged;
(ii) with which the Agent Bank is consolidated;
(iii) resulting from any merger or consolidation to which
the Agent Bank is a party;
(iv) to which the Agent Bank sells or otherwise transfers
all or substantially all the assets of its corporate
trust business,
shall, on the date when that merger, conversion,
consolidation, sale or transfer becomes effective and to the
extent permitted by applicable law, become the
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successor Agent Bank under this agreement without the
execution or filing of any agreement or document or any
further act on the part of the parties to this agreement,
unless otherwise required by the Trustee or the Trust Manager,
and after that effective date all references in this agreement
to the Agent Bank shall be references to that corporation.
17.7 Successor to Note Registrar
(a) On the execution by the Trustee, the Trust Manager and any
successor Note Registrar of an instrument effecting the
appointment of that successor Note Registrar, that successor
Note Registrar shall, without any further act, deed or
conveyance, become vested with all the authority, rights,
powers, trusts, immunities, duties and obligations of its
predecessor with effect as if originally named as Note
Registrar in this agreement and that predecessor, on payment
to it of the pro rata proportion of its administration fee and
disbursements then unpaid (if any), shall have no further
liabilities under this agreement, except for any accrued
liabilities arising from or relating to any act or omission
occurring prior to the date on which the successor Note
Registrar is appointed.
(b) Any corporation:
(i) into which the Note Registrar is merged;
(ii) with which the Note Registrar is consolidated;
(iii) resulting from any merger or consolidation to which
the Note Registrar is a party;
(iv) to which the Note Registrar sells or otherwise
transfers all or substantially all the assets of its
corporate trust business,
shall, on the date when that merger, conversion,
consolidation, sale or transfer becomes effective and to the
extent permitted by applicable law, become the successor Note
Registrar under this agreement without the execution or filing
of any agreement or document or any further act on the part of
the parties to this agreement, unless otherwise required by
the Trustee or the Trust Manager, and after that effective
date all references in this agreement to the Note Registrar
shall be references to that corporation.
17.8 Notice to Class A Noteholders
The Trust Manager on behalf of the Trustee shall, within 14 days of:
(a) the termination of the appointment of any Paying Agent, the
Note Registrar or the Agent Bank;
(b) the appointment of a new Paying Agent, the Note Registrar or
Agent Bank; or
(c) the resignation of any Paying Agent, the Note Registrar or
Agent Bank,
give to the Class A Noteholders notice of the termination, appointment
or resignation in accordance with Condition 12 (in the case of a
termination under clause 17.1(b)(i) or 17.2 at the cost of the outgoing
Paying Agent).
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17.9 Change in Paying Office or Specified Office
(a) If any Paying Agent proposes to change its Paying Office
(which must be within the same city as its previous Paying
Office), it must give to the Trustee, the Trust Manager, the
Note Trustee and, in the case of a change in the Paying Office
of a Paying Agent other than the Principal Paying Agent, the
Principal Paying Agent, not less than 30 days' prior written
notice of that change, giving the address of the new Paying
Office and stating the date on which the change is to take
effect. No change of Paying Office may occur within the period
between 30 days before and 30 days after any due date for
payment of any Class A Notes.
(b) If the Agent Bank proposes to change its Specified Office
(which must be in London), it must give to the Trustee, the
Trust Manager and the Note Trustee, not less than 30 days'
prior written notice of that change, giving the address of the
new Specified Office and stating the date on which the change
is to take effect. No change of specified office may occur
within the period between 30 days before and 30 days after any
due date for payment of any Class A Notes.
(c) The Trustee or Trust Manager must, within 14 days of receipt
of a notice under paragraph (a) (unless the appointment is to
terminate pursuant to clause 17.1 or 17.2 on or prior to the
date of that change) give to the Class A Noteholders notice in
accordance with the Conditions of that change and of the
address of the new Paying Office but the costs of giving that
notice shall be borne by the Paying Agent which is changing
its Paying Office and not by the Trustee or the Trust Manager.
(d) Despite any other provision of this agreement, no Paying
Office may be located in Australia.
18. Fees and Expenses
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(a) The Trustee shall pay to the Principal Paying Agent during the
period when any of the Class A Notes remain outstanding the
administration fee separately agreed by the Principal Paying
Agent and the Trustee, together with any out-of-pocket
expenses reasonably incurred (including any legal fees and
expenses and any applicable value added or similar tax
thereon). If the appointment of the Principal Paying Agent is
terminated under this agreement, the Principal Paying Agent
must refund to the Trustee that proportion of the fee (if any)
which relates to the period during which the Principal Paying
Agent will not be the Principal Paying Agent.
(b) The Trustee shall pay to the Agent Bank during the period when
any of the Class A Notes remain outstanding the fee separately
agreed by the Agent Bank and the Trustee, together with any
out-of-pocket expenses reasonably incurred (including any
legal fees and expenses and any applicable value added or
similar tax thereon). If the appointment of the Agent Bank is
terminated under this agreement, the Agent Bank must refund to
the Trustee that proportion of the fee (if any) which relates
to the period during which the Agent Bank will not be the
Agent Bank.
(c) The Trustee shall pay to the Note Registrar during the period
when any of the Class A Notes remain outstanding the fee
separately agreed by the Note Registrar and the
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Trustee, together with any out-of-pocket expenses reasonably
incurred (including any legal fees and expenses and any
applicable value added or similar tax thereon). If the
appointment of the Note Registrar is terminated under this
agreement, the Note Registrar must refund to the Trustee that
proportion of the fee (if any) which relates to the period
during which the Note Registrar will not be the Note
Registrar.
(d) Save as provided in paragraphs (a) and (c), or as expressly
provided elsewhere in this agreement, neither the Trustee nor
the Trust Manager shall have any liability in respect of any
fees or expenses of the Agent Bank, Principal Paying Agent or
any other Paying Agent or the Note Registrar in connection
with this agreement.
(e) The above fees, payments and expenses shall be paid in United
States dollars and the Trustee shall in addition pay any Value
Added Tax which may be applicable. The Principal Paying Agent
shall arrange for payment of commissions to the other Paying
Agents and arrange for the reimbursement of their expenses
promptly upon demand, supported by evidence of that
expenditure, and provided that payment is made as required by
paragraph (a) the Trustee shall not be concerned with or
liable in respect of that payment.
19. Waivers, Remedies Cumulative
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(a) No failure to exercise and no delay in exercising any right,
power or remedy under this agreement operates as a waiver. Nor
does any single or partial exercise of any right, power or
remedy preclude any other or further exercise of that or any
other right, power or remedy.
(b) The rights, powers and remedies provided to a party in this
agreement are in addition to, and do not exclude or limit, any
right, power or remedy provided by law.
20. Severability of Provisions
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Any provision of this agreement which is prohibited or unenforceable in
any jurisdiction is ineffective as to that jurisdiction to the extent
of the prohibition or unenforceability. That does not invalidate the
remaining provisions of this agreement nor affect the validity or
enforceability of that provision in any other jurisdiction.
21. Assignments
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Subject to the Transaction Documents, no party may assign or transfer
any of its rights or obligations under this agreement without the prior
written consent of the other parties, or if the rating of the Class A
Notes would be withdrawn or reduced as a result of the assignment.
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22. Notices
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22.1 General
All notices, requests, demands, consents, approvals, agreements or
other communications to or by a party to this agreement:
(a) must be in writing;
(b) must be signed by an Authorised Signatory of the sender; and
(c) will be taken to be duly given or made:
(i) (in the case of delivery in person or by post) when
delivered, received or left at the address of the
recipient shown in clause 22.2 or to any other
address which it may have notified by the recipient
to the sender;
(ii) (in the case of facsimile transmission) on receipt of
a transmission report confirming successful
transmission to the number shown in clause 22.2 or
any other number notified by the recipient to the
sender under this clause 22; and
(iii) (in the case of a telex) on receipt by the sender of
the answerback code of the recipient at the end of
transmission to the number shown in clause 22.2 or
any other number notified by the recipient to the
sender under this clause 22,
but if delivery or receipt is on a day on which business is
not generally carried on in the place to which the
communication is sent or is later than 4.00 pm (local time),
it will be taken to have been duly given or made at the
commencement of business on the next day on which business is
generally carried on in that place.
22.2 Details
The address, facsimile and telex of each party at the date of this
agreement are as follows:
The Trustee
WESTPAC SECURITIES ADMINISTRATION LIMITED
Xxxxx 0, Xxxxxxxxx Xxxxx
00 Xxxx Xxxxxx
XXXXXX XXX 0000
Tel: 000 0000 0000
Fax: 000 0000 0000
Attention: Trustee Securitisation Manager
The Trust Manager
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED
Xxxxx 0
00 Xxxxxx Xxxxx
XXXXXX XXX 0000
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Agency Agreement Allens Xxxxxx Xxxxxxxx
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Tel: 000 0000 0000
Fax: 000 0000 0000
Attention: Securitisation Trust Manager
Copy to: Xxxxx E Love, Jr
C/- Westpac Banking Corporation
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx N.Y. 10023
The Principal Paying Agent
CITIBANK, N.A., LONDON BRANCH
0 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Fax: 00 (0)000 000 0000
Attention: Agency & Trust
The Agent Bank
CITIBANK, N.A., LONDON BRANCH
0 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Fax: 00 (0)000 000 0000
Attention: Agency & Trust
The Note Trustee
CITIBANK, N.A., LONDON BRANCH
Xxxxxxx Xxxxxx
Xxxx Xxxx
Xxxxxx XX0 0XX
Fax: 00 (0)000 000 0000
Attention: Agency & Trust
The Note Registrar
CITIBANK, N.A., LONDON BRANCH
0 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Fax: 00 (0)000 000 0000
Attention: Agency & Trust
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Agency Agreement Allens Xxxxxx Xxxxxxxx
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22.3 Communication through Principal Paying Agent
All communications relating to this agreement between the Trustee and
the Agent Bank and any of the Paying Agents or between the Paying
Agents themselves shall, save as otherwise provided in this agreement,
be made through the Principal Paying Agent.
23. Limited Recourse
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23.1 General
Clause 33 of the Master Trust Deed applies to the obligations and
liabilities of the Trustee and the Trust Manager under this agreement.
23.2 Liability of Trustee limited to its right to indemnity
(i) The 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 Trustee only to the extent to which it
can be satisfied out of property of the Trust out of
which the Trustee is actually indemnified for the
liability. This limitation of the Trustee's liability
applies despite any other provision of this agreement
and extends to all liabilities and obligations of the
Trustee in any way connected with any representation,
warranty, conduct, omission, agreement or transaction
related to this agreement or the Trust.
(ii) The parties other than the Trustee may not xxx the
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 similar person to the Trustee or
prove in any liquidation, administration or
arrangement of or affecting the Trustee.
(iii) The provisions of this clause 23 shall not apply to
any obligation or liability of the Trustee to the
extent that it is not satisfied because under a
Transaction Document or by operation of law there is
a reduction in the extent of the Trustee's
indemnification out of the Assets of the Trust, as a
result of the Trustee's fraud, negligence or breach
of trust.
(iv) It is acknowledged that the Trust Manager, the
Servicer, the Currency Swap Providers, the Note
Trustee, the Agent Bank, the Principal Paying Agent,
the Note Registrar and the Paying Agents (each a
Relevant Party) are responsible under this agreement
and the other Transaction Documents for performing a
variety of obligations relating to the Trust. No act
or omission of the Trustee (including any related
failure to satisfy its obligations under this
agreement) will be considered fraud, negligence or
breach of trust of the Trustee for the purpose of
sub-paragraph (iii) 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
Trustee and for whom the Trustee is responsible under
this agreement or the
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relevant Transaction Documents, 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 any other person who provides
services in respect of the Trust (other than a person
who has been delegated or appointed by the Trustee
and for whom the Trustee is responsible under this
agreement or the relevant Transaction Documents, but
excluding any Relevant Party).
(v) 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 Trustee
in a way which exposes the Trustee to any personal
liability and no act or omission of any such person
will be considered fraud, negligence or breach of
trust of the Trustee for the purpose of sub-paragraph
(iii), if the Trustee has exercised reasonable care
in the selection and supervision of such a person.
23.3 Unrestricted remedies
Nothing in clause 23.2 limits a Paying Agent, the Note Registrar, the
Agent Bank or the Note Trustee in:
(a) obtaining an injunction or other order to restrain any breach
of this agreement by any party;
(b) obtaining declaratory relief; or
(c) in relation to its rights under the Security Trust Deed.
23.4 Restricted remedies
Except as provided in clause 23.3, none of the Paying Agents, the Note
Registrar, the Agent Bank or the Note Trustee shall:
(a) (judgment) obtain a judgment for the payment of money or
damages by the Trustee;
(b) (statutory demand) issue any demand under s459E(1) of the
Corporations Act (or any analogous provision under any other
law) against the Trustee;
(c) (winding up) apply for the winding up or dissolution of the
Trustee;
(d) (execution) levy or enforce any distress or other execution
to, on, or against any assets of the Trustee;
(e) (court appointed receiver) apply for the appointment by a
court of a receiver to any of the assets of the Trustee;
(f) (set-off or counterclaim) exercise or seek to exercise any
set-off or counterclaim against the Trustee; or
(g) (administrator) appoint, or agree to the appointment, of any
administrator to the Trustee,
or take proceedings for any of the above and each Paying Agent, the
Agent Bank and the Note Trustee waives its rights to make those
applications and take those proceedings.
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24. Counterparts
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This agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
25. Governing Law
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This agreement is governed by the laws of New South Wales. Each party
submits to the non-exclusive jurisdiction of the courts exercising
jurisdiction there.
26. Successor Trustee
--------------------------------------------------------------------------------
Each Paying Agent shall do all things reasonably necessary to enable
any successor Trustee appointed under clause 24 of the Master Trust
Deed to become the Trustee under this agreement.
EXECUTED in London.
Each attorney executing this agreement states that he has no notice of
revocation or suspension of his power of attorney.
TRUSTEE
SIGNED on behalf of )
WESTPAC SECURITIES ADMINISTRATION LIMITED )
)
by its attorney )
in the presence of: ) /s/ XXXXXX XXXXXX XXXXXXXX
-----------------------------
Signature
/s/ STUART XXXXXXXX Xxxxxx Xxxxxx Xxxxxxxx
------------------------------- -----------------------------
Witness Print name
Xxxxxx Xxxxxxxx
-------------------------------
Print name
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Agency Agreement Allens Xxxxxx Xxxxxxxx
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TRUST MANAGER
SIGNED on behalf of )
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED )
)
by its attorney )
in the presence of: ) /s/ G.P.D. XXXXXX
------------------------------
Signature
/s/ XXXXXX XXXXXXXX G.P.D. Xxxxxx
------------------------------- ------------------------------
Witness Print name
Xxxxxx Xxxxxxxx
-------------------------------
Print name
NOTE TRUSTEE
12th March 2002
EXECUTED by )
CITIBANK, N.A., LONDON BRANCH )
/s/ XXXX X'XXXX /s/ XXXXXXX XXXXXXXX
------------------------------- ------------------------------
Authorised Signatory Authorised Signatory
Xxxx X'Xxxx Xxxxxxx Xxxxxxxx
------------------------------- ------------------------------
Print name Print name
PRINCIPAL PAYING AGENT
12th March 2002
EXECUTED by )
CITIBANK, N.A., LONDON BRANCH )
/s/ XXXX X'XXXX /s/ XXXXXXX XXXXXXXX
------------------------------- ------------------------------
Authorised Signatory Authorised Signatory
Xxxx X'Xxxx Xxxxxxx Xxxxxxxx
------------------------------- ------------------------------
Print name Print name
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Agency Agreement Allens Xxxxxx Xxxxxxxx
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AGENT BANK
12th March 2002
EXECUTED by )
CITIBANK, N.A., LONDON BRANCH )
/s/ XXXX X'XXXX /s/ XXXXXXX XXXXXXXX
------------------------------- ------------------------------
Authorised Signatory Authorised Signatory
Xxxx X'Xxxx Xxxxxxx Xxxxxxxx
------------------------------- ------------------------------
Print name Print name
NOTE REGISTRAR
12th March 2002
EXECUTED by )
CITIBANK, N.A., LONDON BRANCH )
/s/ XXXX X'XXXX /s/ XXXXXXX XXXXXXXX
------------------------------- ------------------------------
Authorised Signatory Authorised Signatory
Xxxx X'Xxxx Xxxxxxx Xxxxxxxx
------------------------------- ------------------------------
Print name Print name
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