Exhibit 10.2
[XXXXX XXXXX & XXXXXXX LETTERHEAD]
WESTPAC BANKING CORPORATION
(Westpac)
THE MORTGAGE COMPANY PTY LIMITED
(Servicer)
WESTPAC SECURITIES ADMINISTRATION LIMITED
(Trustee)
WESTPAC SECURITISATION TRUSTS
SERVICING AGREEMENT
SERIES 1998-1G AMENDMENT AGREEMENT
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION ............................ 1
1.1 Definitions ...................................... 1
1.2 Interpretation ................................... 1
2. AMENDMENT ................................................. 1
3. AMENDMENTS LIMITED ........................................ 4
4. GOVERNING LAW ............................................. 4
5. COUNTERPARTS .............................................. 4
SERVICING AGREEMENT SERIES 1998-1G AMENDMENT AGREEMENT
AGREEMENT dated 1998 between
1. WESTPAC BANKING CORPORATION (ARBN 007 457 141) incorporated in New
South Wales of 00 Xxxxxx Xxxxx, Xxxxxx in its capacity as an Approved
Seller to the Series 0000-0X XXX Trust (Westpac);
2. THE MORTGAGE COMPANY PTY LIMITED (ACN 070 968 302) incorporated in
the Australian Capital Territory of Xxxxx 0, 000 Xxxx Xxxxxx, Xxxxxx
as servicer of the Series 0000-0X XXX Xxxxx (the Servicer); and
3. WESTPAC SECURITIES ADMINISTRATION LIMITED (ACN 000 049 472)
incorporated in New South Wales of Xxxxx 00, 000 Xxxx Xxxxxx, Xxxxxx
as trustee of the Series 0000-0X XXX Xxxxx (the Trustee).
RECITALS
A. The Trustee, Westpac and the Servicer are parties to a Servicing
Agreement dated 18 February 1997 (the Servicing Agreement).
B. The Trustee, Westpac and the Servicer wish to amend the Servicing
Agreement so far as the Servicing Agreement relates to the Trust, in
the manner set out in this agreement.
IT IS AGREED as follows
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
Definitions in the Servicing Agreement apply in this agreement unless
the context requires otherwise or the relevant term is defined in
this agreement, but Trust means the Series 0000-0X XXX Xxxxx
constituted under the Master Trust Deed and the Series Notice dated
on or about the date of this agreement.
1.2 Interpretation
Clause 1.2 of the Servicing Agreement applies as if incorporated in
this agreement.
2. AMENDMENT
The Servicing Agreement is amended so far as it relates to the Trust
as follows.
(a) The definition of Custody Transfer Trigger in clause 1.1
of the Servicing Agreement is deleted and replaced with
the following definition.
"Custody Transfer Trigger means any of the following
events:
(a) a Further Audit resulting in an adverse
report;
(b) the long term credit rating of the holding
company of the Servicer that is downgraded:
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(i) below BBB by S&P; or
(ii) below Baa2 by Xxxxx'x; or
(iii) below BBB by Fitch IBCA; or
(c) the Servicer is in default under a servicing
agreement between it and any other person,
and by reason of the default that other
person removes any documents in the
Servicer's custody under the servicing
agreement where that person would otherwise
not have been entitled to do so."
(b) The definition of Servicer Transfer Event in clause 1.1
of the Servicing Agreement is amended by deleting the
number "10" in paragraph (b) and inserting the number
"5".
(c) Clause 1.3 of the Servicing Agreement is deleted and
replaced with the following new clause.
"1.3 Limitation of liability of the Trustee
(a) General
Clause 33 of the Master Trust Deed applies
to the obligations and liabilities of the
Trustee under this agreement.
(b) Liability of Trustee limited to its right of
indemnity
(i) This agreement applies to the
Trustee 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 any
similar person to the Trustee or
prove in any liquidation,
administration or arrangements of or
affecting the Trustee.
(iii) The provisions of this clause 1.3
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 Note
Trustee, the Principal Paying Agent,
the other Paying Agents and the
Agent Bank (each a Relevant Party)
are responsible under this agreement
and the other Transaction Documents
for performing a variety of
obligations relating to
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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 Documents
(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."
(d) Clause 3.1(d)(ii) of the Servicing Agreement is deleted
and replaced with the following clause 3.1(d)(ii).
"(d) if its holding company has a short term
rating from S&P of not less than A- and a
short term rating from Xxxxx'x of not less
than A2, and a short term rating from Fitch
IBCA of not less than A- not later than the
last Business Day of each calendar year
during the Term;".
(e) Clause 3.4 of the Servicing Agreement is amended by
deleting the word "may" in the fourth last line of that
clause and replacing it with the word "must".
(f) Clause 6.2(a) of the Servicing Agreement is deleted and
replaced with the following clause 6.2(a).
"(a) If Westpac has a short term rating of A-1+
from S&P and P-1 from Xxxxx'x and A-1+ from
Fitch IBCA, or otherwise satisfies the
requirements of both Designated Rating
Agencies so that any rating given by any
Designated Rating Agency in respect of the
Notes will not be adversely affected,
Westpac must pay the Collections it receives
during a Collection Period on the Remittance
Date for that Collection Period into the
relevant Collection Account."
(g) Clause 6.2(c), of the Servicing Agreement is deleted and
replaced with the following clause 6.2(c).
"(c) If Westpac does not have a short term rating of
at least A1+ from S&P and at least P-1 from
Xxxxx'x and at least A1+ from Fitch IBCA, or
otherwise does not satisfy the requirements of
both of those Designated Rating Agencies so
that the rating given by any Designated Rating
Agency in respect of the Notes will be
adversely affected, then Westpac shall pay all
Collections in its
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possession or control into the relevant
Collection Account no later than five Business
Days following receipt."
(h) Clause 8.2(a) of the Servicing Agreement is deleted and
replaced with the following clause 8.2(a).
"(a) If a Servicer Transfer Event occurs, the
Trustee must terminate this Agreement with
immediate effect. The Trustee must promptly
give notice of that termination to the Trust
Manager, the Approved Seller, the Servicer and
the Designated Rating Agencies."
(i) The following is inserted as clause 8.2(d):
"(d) If this agreement is terminated in accordance
with this clause 8.2, then until the Trustee
appoints an Eligible Servicer to be the
Servicer, and that Eligible Servicer agrees to
act as Servicer, the Trustee shall act as
Servicer and is entitled to the fee payable
under clause 7 while so acting."
(j) Clause 8.3 of the Servicing Agreement is amended by
deleting the words ", and that" in line two of that
clause and replacing them with the word "which".
(k) Paragraph 5(b)(ii) of schedule 1 to the Servicing Agreement is
deleted.
3. AMENDMENTS LIMITED
The amendments to the Servicing Agreement set out in this agreement
apply only in relation to the Trust, and do not apply in relation to
any other Trust (as defined in the Master Trust Deed).
4. GOVERNING LAW
This agreement is governed by the laws of the [Australian Capital
Territory] and each party submits to the non-exclusive jurisdiction
of its courts and the courts exercising jurisdiction in that State.
5. COUNTERPARTS
This agreement may be executed in any number of counterparts. All
counterparts taken together are deemed to constitute one instrument.
EXECUTED in Sydney.
Each attorney executing this agreement states that he has no notice of
revocation or suspension of his power of attorney.
SIGNED on behalf of )
WESTPAC BANKING CORPORATION )
by its attorneys in the )
presence of: )
/s/ /s/
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Signature Signature
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Print name Print name
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SIGNED on behalf of )
THE MORTGAGE COMPANY PTY )
LIMITED by its attorney )
in the presence of: )
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) Signature
/s/
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Witness Print name
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Print name
SIGNED on behalf of )
WESTPAC SECURITIES )
ADMINISTRATION LIMITED )
by its attorney )
in the presence of: )
/s/
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) Signature
/s/
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Witness Print name
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Print name
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