Exhibit 4.5
Agency Agreement
---------------------------------------------
Westpac Securities Administration Limited
(Trustee)
Westpac Securitisation Management Pty Limited
(Trust Manager)
[*]
(Note Trustee)
[*]
(Principal Paying Agent)
[*]
(Agent Bank)
[*]
(Note Registrar)
Xxxxx Xxxxx & Xxxxxxx
The Chifley Tower
0 Xxxxxxx Xxxxxx
Xxxxxx XXX 0000
Xxxxxxxxx
Tel 00 0 0000 0000
Fax 00 0 0000 0000
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
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 4
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 Trust 6
3.9 Reimbursement 6
3.10 Method of payment 6
3.11 No fee 7
3.12 Payments outside Australia 7
4. Repayment 7
5. Appointment of the Agent Bank as Reference Agent 8
6. Duties of the Agent Bank 8
7. Note Trustee 9
8. Early Redemption of Class A Notes 10
--------------------------------------------------------------------------------
Page (i)
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
-------------------------------------------------------------------------------
9. Pro Rata Redemption, Purchases And Cancellation Of Notes 11
10. Notices to Class A Noteholders 12
11. Documents and Forms 12
12. Authentication 12
13. Indemnity 13
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 16
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 17
16.1 Communications to Class A Noteholders 17
16.2 Agency 17
16.3 Identity 17
16.4 No set-off 18
16.5 Reliance 18
16.6 Entitled to deal 18
16.7 Consultation 18
16.8 Duties 18
16.9 Income Tax Returns 19
16.10 Obligations of each Note Party 19
--------------------------------------------------------------------------------
Page (ii)
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
17. Changes in Paying Agents and Agent Bank 19
17.1 Removal 19
17.2 Resignation 19
17.3 Limitation 20
17.4 Delivery of amounts 20
17.5 Successor to Principal Paying Agent 21
17.6 Successor to Agent Bank 21
17.7 Notice to Class A Noteholders 22
17.8 Change in Paying Office or Specified Office 22
18. Fees and Expenses 23
19. Waivers, Remedies Cumulative 24
20. Severability of Provisions 24
21. Assignments 24
22. Notices 24
22.1 General 24
22.2 Details 25
22.3 Communication through Principal Paying Agent 26
23. Limited Recourse 26
23.1 General 26
23.2 Liability of Trustee limited to its right to indemnity 26
23.3 Unrestricted remedies 28
23.4 Restricted remedies 28
24. Counterparts 28
25. Governing Law 28
26. Successor Trustee 29
--------------------------------------------------------------------------------
Page (iii)
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
Date [*]
---------
Parties
---------
1. Westpac Securities Administration Limited (ACN 000 049 472)
incorporated in New South Wales of Xxxxx 00, 000 Xxxx Xxxxxx, Xxxxxx
in its capacity as trustee of the Series [*] WST Trust (the
Trustee);
2. Westpac Securitisation Management Pty Limited (ACN 000 000 000)
incorporated in the Australian Capital Territory of Xxxxx 00, 00
Xxxxxx Xxxxx, Xxxxxx as trust manager in relation to the Series [*]
WST Trust (the Trust Manager);
3. [*] acting through its office at [*] 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. [*] acting through its office at [*] 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. [*] acting through its office at [*] 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. [*] acting through its office at [*] 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
---------
A The Trustee proposes to issue US$[*] of mortgage backed floating
rate notes due [*] comprising US$[*] Class A Notes (Class A Notes).
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, as agent for the Clearing Agency. The Book-Entry Notes
shall
--------------------------------------------------------------------------------
Page 1
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
initially be registered on the Note Register in the name of the
Common Depository, as nominee of the 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.
--------------------------------------------------------------------------------
IT IS AGREED as follows.
1. Definitions and Interpretation
--------------------------------------------------------------------------------
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 Trust Manager.
Notice of Creation of Trust means the Notice of Creation of Trust dated [*]
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.
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 [*] WST Trust established under
the Notice of Creation of Trust, the Master Trust Deed and the Series
Notice.
--------------------------------------------------------------------------------
Page 2
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
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.
--------------------------------------------------------------------------------
Page 3
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
(b) The rights and obligations of the parties under this agreement relate
only to the Series [*] WST Trust, and do not relate to any other Trust
(as defined in the Master Trust Deed).
2. Appointment of Paying Agents
--------------------------------------------------------------------------------
(a) Subject to the terms of this agreement, the 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 in its capacity as trustee of the Trust 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
--------------------------------------------------------------------------------
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, pay to or to the order of, or procure
payment to or to the order of, the Principal Paying Agent the amount in US$
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.
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 of the
amount of interest and principal payable in respect of the Class A Notes on
the Payment Date
--------------------------------------------------------------------------------
Page 4
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
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 the Common Depository
for credit to the account of the persons appearing from time to time
in the records of the Common Depository as account holder with
respect to the Book-Entry Note.
(b) An annotation of the Principal Paying Agent or of the Common
Depository under this clause 3.4 shall be sufficient evidence unless
the contrary is proved of the relevant payments having been made or
not 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:
--------------------------------------------------------------------------------
Page 5
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
(i) forthwith upon full receipt notify 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 Trust
The Principal Paying Agent shall hold in trust for the Note Trustee and the
Class A Notes 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 been placed in funds
by 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 to the
Trustee and the Note Trustee. Those sums shall be held on trust 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, on trust for repayment
to the Trustee (subject to clause 4). On repayment in full in
accordance with clause 4 to the Trustee that trust shall terminate
and all liabilities
--------------------------------------------------------------------------------
Page 6
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
of the Principal Paying Agent with respect to those moneys shall
cease. The Trustee may, promptly after each Payment Date, request
confirmation from the Principal Paying Agent that the Principal
Paying Agent has paid the relevant amount to the Common Depository.
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.
3.12 Payments outside Australia
All payments of interest by a Paying Agent in relation to an Class A Note
must be made to an account outside Australia (for so long as is required
for that payment to be exempt from interest withholding tax under section
128F of the Income Tax Assessment Xxx 0000 (Cth) and the Income Tax
Assessment Xxx 0000 (Cth)).
4. Repayment
--------------------------------------------------------------------------------
(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.
--------------------------------------------------------------------------------
Page 7
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
5. Appointment of the Agent Bank as Reference Agent
--------------------------------------------------------------------------------
(a) The 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 in its capacity as
trustee of the Trust 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 Agent Bank.
6. Duties of the Agent Bank
--------------------------------------------------------------------------------
(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 Office in New York and
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 (for so long as
the Relevant Class A Notes are listed on the London Stock
Exchange) 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
--------------------------------------------------------------------------------
Page 8
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
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 co-operate with the Agent Bank in order to
effect that publication.
(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
--------------------------------------------------------------------------------
(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 and the Agent
Bank require the Principal Paying Agent, the other Paying
Agents and the Agent Bank either:
(A) (1) to act as Principal Paying Agent and Paying Agents
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 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
--------------------------------------------------------------------------------
Page 9
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
Agent 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 (b) shall be a good discharge
to the Trustee and the Trustee shall not be 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 (b).
(c) The Note Trustee shall forthwith give notice to the Trust Manager,
the Trustee, the Security Trustee, the Agent Bank, 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
--------------------------------------------------------------------------------
(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(n) (which it may only do at the direction of the Trust Manager),
the Trust Manager shall give not less than 5 days' prior 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(n) 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 the Common Depository 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
--------------------------------------------------------------------------------
Page 10
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
(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
--------------------------------------------------------------------------------
(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(a) the
Trust Manager shall on each Determination Date give prior notice to
the Agent Bank, the Principal Paying Agent and the Note Trustee, as
provided in Condition 5.
(b) On receipt of a notice under paragraph (a), the Principal Paying
Agent shall notify the Common Depository of the proposed redemption,
specifying in each case the aggregate principal 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 on the London Stock
Exchange, 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 (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 to the Trustee,
the Agent Bank, the Note Trustee, the Principal Paying Agent and
(for so long as the Class A Notes are listed on the London Stock
Exchange) the London Stock Exchange 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 the
Common Depository 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.
--------------------------------------------------------------------------------
Page 11
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
(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 as soon as possible, and in any event within three months after
the date of any redemption or purchase, 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 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
--------------------------------------------------------------------------------
(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
--------------------------------------------------------------------------------
(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).
--------------------------------------------------------------------------------
Page 12
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
13. Indemnity
--------------------------------------------------------------------------------
(a) Subject to paragraph (b) and clause 23, the Trustee shall indemnify
each Paying Agent and the Agent Bank against any loss, damages,
proceeding, liability, cost, claim, action, demand or expense (each,
an Expense) which the Paying Agent may incur or which may be made
against the Paying Agent as a result of or in connection with the
Paying Agent's or Agent Bank (as the case may be) appointment or the
proper exercise of the Paying Agent's powers and proper performance of
the Paying Agent's or Agent Bank (as the case may be) duties under
this agreement, notwithstanding the resignation or removal of that
Paying Agent 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 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 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 or the Agent Bank (as the case may be) of the
terms of this agreement or from the Paying Agent'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 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 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 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 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 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.
--------------------------------------------------------------------------------
Page 13
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
14. The Note Register
--------------------------------------------------------------------------------
14.1 Appointment of Note Registrar
The Trustee appoints [*] to be the initial Note Registrar. [*] 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 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 an Class A
Noteholder;
(k) (account) the account to which any payments due to an 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
--------------------------------------------------------------------------------
Page 14
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
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 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 agree;
(b) (access to Trust Manager and Auditor) open to the Trustee, the Trust
Manager and the Auditor of the Trust to inspect during normal business
hours;
(c) (inspection by Class A Noteholders) open for inspection by an Class A
Noteholder during normal business hours but 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 or the Trust Manager) 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 recognise an 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 an Class A Noteholder by the Class A
Noteholder, the Note Registrar shall alter the Note Register accordingly.
--------------------------------------------------------------------------------
Page 15
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
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;
(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 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 Registrar.
--------------------------------------------------------------------------------
Page 16
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
16. General
--------------------------------------------------------------------------------
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 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 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 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 Common Depository 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
Common Depository 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
--------------------------------------------------------------------------------
Page 17
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
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.
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, after 10 days prior notice to the Trustee and the
Trust Manager, 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.
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.
--------------------------------------------------------------------------------
Page 18
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
16.9 Income Tax Returns
The Principal Paying Agent shall 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.
17. Changes in Paying Agents and Agent Bank
--------------------------------------------------------------------------------
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 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
--------------------------------------------------------------------------------
Page 19
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
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);
(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;
(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 the City of 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
--------------------------------------------------------------------------------
Page 20
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
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,
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
--------------------------------------------------------------------------------
Page 21
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
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 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 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 or the Agent
Bank;
(b) the appointment of a new Paying Agent or Agent Bank; or
(c) the resignation of any Paying Agent 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).
17.8 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 the City of 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
--------------------------------------------------------------------------------
Page 22
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
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
--------------------------------------------------------------------------------
(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). 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). 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 Trustee, together with any out-of-
pocket expenses reasonably incurred (including any legal fees and
expenses). 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.
--------------------------------------------------------------------------------
Page 23
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
(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
--------------------------------------------------------------------------------
(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
--------------------------------------------------------------------------------
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
--------------------------------------------------------------------------------
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.
22. Notices
--------------------------------------------------------------------------------
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
--------------------------------------------------------------------------------
Page 24
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
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
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 X.X. 00000
--------------------------------------------------------------------------------
Page 25
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
The Principal Paying Agent
[*]
[*]
Fax: [*]
Attention: [*]
The Agent Bank
[*]
[*]
Fax: [*]
Attention: [*]
The Note Trustee
[*]
[*]
Fax: [*]
Attention: [*]
The Note Registrar
[*]
[*]
Fax: [*]
Attention: [*]
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
--------------------------------------------------------------------------------
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
--------------------------------------------------------------------------------
Page 26
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
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 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
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
--------------------------------------------------------------------------------
Page 27
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
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 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 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 Law (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.
24. Counterparts
--------------------------------------------------------------------------------
This agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
25. Governing Law
--------------------------------------------------------------------------------
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.
--------------------------------------------------------------------------------
Page 28
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
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: ) ______________________________
Signature
_____________________________________ ______________________________
Witness Print name
_____________________________________
Print name
TRUST MANAGER
SIGNED on behalf of )
WESTPAC SECURITISATION )
MANAGEMENT PTY LIMITED )
by its attorney )
in the presence of: ) ______________________________
Signature
_____________________________________ ______________________________
Witness Print name
_____________________________________
Print name
--------------------------------------------------------------------------------
Page 29
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
NOTE TRUSTEE
SIGNED on behalf of )
[*] )
by its attorney )
in the presence of: ) _________________________________
Signature
______________________________________ _________________________________
Witness Print name
______________________________________
Print name
PRINCIPAL PAYING AGENT
SIGNED on behalf of )
[*] )
by its attorney )
in the presence of: ) _________________________________
Signature
_____________________________________ _________________________________
Witness Print name
_____________________________________
Print name
AGENT BANK
SIGNED on behalf of )
[*] )
by its attorney )
in the presence of: ) _________________________________
Signature
______________________________________ _________________________________
Witness Print name
______________________________________
Print name
--------------------------------------------------------------------------------
Page 30
Agency Agreement Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
NOTE REGISTRAR
SIGNED on behalf of )
[*] )
by its attorney )
in the presence of: ) _________________________________
Signature
______________________________________ _________________________________
Witness Print name
______________________________________
Print name
--------------------------------------------------------------------------------
Page 31
