Exhibit 4.5
[GRAPHIC OMITTED]
AGENCY AGREEMENT
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WESTPAC SECURITIES ADMINISTRATION LIMITED
(Trustee)
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED
(Trust Manager)
CITIBANK, N.A., LONDON OFFICE
(Note Trustee)
CITIBANK, N.A.
(Principal Paying Agent)
CITIBANK, N.A., LONDON OFFICE
(Agent Bank)
CITIBANK, N.A.
(Note Registrar)
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The Chifley Tower
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(C) Copyright ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ 1999
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AGENCY AGREEMENT & ▇▇▇▇▇▇▇
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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 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 7
6. DUTIES OF THE AGENT BANK 8
7. NOTE TRUSTEE 9
8. EARLY REDEMPTION OF CLASS A NOTES 10
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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 13
14.1 Appointment of Note ▇▇▇▇▇▇▇▇▇ ▇▇
14.2 Details to be kept on the Note Register 13
14.3 Payments of Principal and Interest 14
14.4 Place of keeping Register, copies and access 14
14.5 Details on Note Register conclusive 15
14.6 Alteration of details on Note Register 15
14.7 Rectification of Note Register 15
14.8 Correctness of Note Register 16
15. CHANGES OF NOTE ▇▇▇▇▇▇▇▇▇ ▇▇
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 17
16.6 Entitled to deal 18
16.7 Consultation 18
16.8 Duties 18
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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 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 23
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 27
23.4 Restricted remedies 28
24. COUNTERPARTS 28
25. GOVERNING LAW 28
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26. SUCCESSOR TRUSTEE 28
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DATE 1999
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PARTIES
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1. WESTPAC SECURITIES ADMINISTRATION LIMITED (ACN 000 049 472)
incorporated in New South Wales of ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
in its capacity as trustee of the Series ▇▇▇▇-▇▇ ▇▇▇ ▇▇▇▇▇ (the
TRUSTEE);
2. WESTPAC SECURITISATION MANAGEMENT PTY LIMITED (ACN ▇▇▇ ▇▇▇ ▇▇▇)
incorporated in the Australian Capital Territory of ▇▇▇▇▇ ▇▇, ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ as trust manager in relation to the Series
▇▇▇▇-▇▇ ▇▇▇ ▇▇▇▇▇ (the TRUST MANAGER);
3. CITIBANK, N.A. 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. CITIBANK, N.A., LONDON OFFICE 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. CITIBANK, N.A., LONDON OFFICE 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. CITIBANK, N.A. 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
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A The Trustee proposes to issue US$[*] of mortgage backed floating
rate notes due 2030 comprising US$[*] 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).
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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 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.
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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 Trust Manager.
NOTICE OF CREATION OF TRUST means the Notice of Creation of Trust dated
[*] 1999 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
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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 ▇▇▇▇-▇▇ ▇▇▇ ▇▇▇▇▇ 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
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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.
(b) The rights and obligations of the parties under this agreement
relate only to the Series ▇▇▇▇-▇▇ ▇▇▇ ▇▇▇▇▇, 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 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
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3.1 PAYMENT BY TRUSTEE
The Trustee shall not later than 10.00 am (London time) on each
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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 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 Depositary for credit to the account of the persons
appearing from time to time in the records of the Common
Depositary as account holder with respect to the Book-Entry
Note.
(b) An annotation of the Principal Paying Agent or of the Common
Depositary 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
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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:
(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
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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 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 Depositary. 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.
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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 ▇▇▇ ▇▇▇▇ (Cth) and the
Income Tax Assessment ▇▇▇ ▇▇▇▇ (Cth)).
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 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
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(a) The Agent Bank shall in relation to the Class A Notes until
their final
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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 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
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(a) At any time after an Event of Default in respect of the Class
A Notes has
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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 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
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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
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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(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 Depositary 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
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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 Depositary 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 Depositary 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
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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
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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
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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
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(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.
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14. THE NOTE REGISTER
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14.1 APPOINTMENT OF NOTE REGISTRAR
The Trustee appoints Citibank, N.A. to be the initial Note Registrar.
Citibank, N.A. 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
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(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 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.
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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.
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
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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
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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 ▇▇▇▇▇▇▇▇▇.
▇▇. 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 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
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shown in the records of the Common Depositary 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 Depositary 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.
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
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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.
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
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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 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:
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(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);
(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);
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(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 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:
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(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 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
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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 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
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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). 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.
(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.
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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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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
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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
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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
▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Tel: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Attention: Trustee Securitisation Manager
THE TRUST MANAGER
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED
▇▇▇▇▇ ▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Tel: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Attention: Securitisation Trust Manager
Copy to: ▇▇▇▇▇ E Love, Jr
C/- Westpac Banking Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ N.Y. 10023
THE PRINCIPAL PAYING AGENT
CITIBANK, N.A.
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
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Tel: [*]
Telex: [*]
Fax: [*]
Attention: [*]
THE AGENT BANK
CITIBANK, N.A., LONDON OFFICE
▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: [*]
Telex: [*]
Fax: [*]
Attention: [*]
THE NOTE TRUSTEE
CITIBANK, N.A., LONDON OFFICE
▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: [*]
Telex: [*]
Fax: [*]
Attention: [*]
THE NOTE REGISTRAR
CITIBANK, N.A.
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: [*]
Telex: [*]
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
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23.1 GENERAL
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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 ▇▇▇ 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,
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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 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
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(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
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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
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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
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TRUST MANAGER
SIGNED on behalf of )
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED)
by its attorney )
in the presence of: )
-------------------------------
Signature
---------------------------------------------- -------------------------------
Witness Print name
----------------------------------------------
Print name
NOTE TRUSTEE
SIGNED on behalf of )
CITIBANK, N.A., LONDON OFFICE )
by its attorney )
in the presence of: )
-------------------------------
Signature
---------------------------------------------- -------------------------------
Witness Print name
----------------------------------------------
Print name
PRINCIPAL PAYING AGENT
SIGNED on behalf of )
CITIBANK, N.A. )
by its attorney )
in the presence of: )
-------------------------------
Signature
---------------------------------------------- -------------------------------
Witness Print name
----------------------------------------------
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----------------------------------------------
Print name
AGENT BANK
SIGNED on behalf of )
CITIBANK, N.A., LONDON OFFICE )
by its attorney )
in the presence of: )
-------------------------------
Signature
---------------------------------------------- -------------------------------
Witness Print name
----------------------------------------------
Print name
NOTE REGISTRAR
SIGNED on behalf of )
CITIBANK, N.A. )
by its attorney )
in the presence of: )
-------------------------------
Signature
---------------------------------------------- -------------------------------
Witness Print name
----------------------------------------------
Print name
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