PAYMENT FUNDING FACILITY
AGREEMENT FOR ISSUE AND REPAYMENT
OF NOTES - SMHL GLOBAL FUND NO. 5
PERPETUAL TRUSTEES AUSTRALIA LIMITED
ABN 86 000 000 000
PERPETUAL TRUSTEES AUSTRALIA LIMITED
ABN 86 000 000 000
ME PORTFOLIO MANAGEMENT LIMITED
ABN 79 005 964 134
and
ME PORTFOLIO MANAGEMENT LIMITED
ABN 79 005 964 134
[Freehills LOGO OMITTED]
MLC Centre Xxxxxx Xxxxx Xxxxxx Xxx Xxxxx Xxxxx 0000 Xxxxxxxxx
Telephone 00 0 0000 0000 Facsimile 61 2 9322 4000
xxx.xxxxxxxxx.xxx DX 000 Xxxxxx
XXXXXX XXXXXXXXX XXXXX XXXXXXXX HANOI HO XXXX XXXX CITY
SINGAPORE
Correspondent Offices, JAKARTA KUALA LUMPUR
Liability limited by the Solicitors' Limitation of Liability
Scheme, approved under the Professional Standards Xxx 0000 (NSW)
Reference PJSR:TEL:25E
Payment Funding Facility
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TABLE OF CONTENTS
Clause Page
1 DEFINITIONS AND INTERPRETATION 2
1.1 Definitions 2
1.2 Interpretation 6
1.3 Banking Day 8
1.4 Transaction Document 8
2 THE NOTES 8
2.1 Application for and Issue of Notes 8
2.2 Acknowledgment of Indebtedness 8
2.3 Obligations under Notes 8
2.4 Ownership of Notes 9
2.5 Register 9
3 PURPOSE 9
4 FUNDING PROCEDURES 10
4.1 Delivery of Funding Notice 10
4.2 Requirements for a Funding Notice 10
4.3 Copy of the Funding Notice to be provided to the Issuer 10
4.4 Irrevocability of Funding Notice 10
5 LOAN FACILITY 11
5.1 Provision of Funding Portions 11
5.2 Repayment of Outstanding Moneys 11
5.3 Interest 11
5.4 Order of Repayment 12
5.5 Acknowledgments 12
6 PAYMENTS 13
6.1 Manner of payments 13
6.2 Payments on a Banking Day 13
6.3 Appropriation of payments 13
6.4 Payments in gross 13
6.5 Amounts payable on demand 14
7 REPRESENTATIONS AND WARRANTIES 14
7.1 By the Issuer 14
7.2 By the SF Manager 15
7.3 Survival and repetition of representations and warranties 16
7.4 Reliance by the Note Holder and OF Manager 16
8 UNDERTAKINGS 16
8.1 Term of undertakings 16
8.2 Compliance with Covenants 16
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8.3 Notify Events of Default 16
9 EVENTS OF DEFAULT 16
9.1 Operation of clause 9 16
9.2 Effect of Event of Default 17
9.3 Issuer to continue to perform 17
9.4 Enforcement 17
10 TRUSTEE LIMITATION OF LIABILITY PROTECTION 17
10.1 Limitation of Liability - Issuer 17
10.2 Limitation of Liability - Note Holder 18
10.3 Wilful Default of the Issuer and the Note Holder 19
11 INDEMNITIES 20
11.1 General indemnity 20
11.2 Continuing indemnities and evidence of loss 20
11.3 Funds available for indemnity 21
11.4 Negligence, wilful default or breach of law 21
11.5 Notification from Note Holder or OF Manager 21
12 TAX, COSTS AND EXPENSES 21
12.1 Tax 21
12.2 Costs and expenses 22
12.3 Goods and services tax 22
13 INTEREST ON OVERDUE AMOUNTS 23
13.1 Payment of interest 23
13.2 Accrual of interest 23
13.3 Rate of interest 23
14 ASSIGNMENT 24
14.1 Assignment by Transaction Party 24
14.2 Assignment by Note Holder 24
14.3 Assist transfer or assignment 24
14.4 Participation permitted 24
14.5 Lending Office 24
14.6 Disclosure 24
14.7 No increase in costs 24
15 GENERAL 25
15.1 Confidential information 25
15.2 Performance by Note Holder of obligations 25
15.3 Transaction Party to bear cost 25
15.4 Notices 25
15.5 Governing law and jurisdiction 27
15.6 Prohibition and enforceability 27
15.7 Waivers 27
15.8 Variation 27
15.9 Cumulative rights 27
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15.10 Attorneys 27
15.11 Binding Obligations 28
15.12 Winding up of Securitisation Fund 28
15.13 Termination 28
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THIS PAYMENT FUNDING FACILITY AGREEMENT
is made on November 2003 between the following parties:
1 PERPETUAL TRUSTEES AUSTRALIA LIMITED
ABN 86 000 000 000
in its capacity as trustee of the Securitisation Fund
(as hereinafter defined) of Xxxxx 0, 00 Xxxxxx Xxxxxx,
Xxxxxx, Xxx Xxxxx Xxxxx
(ISSUER)
2 PERPETUAL TRUSTEES AUSTRALIA LIMITED
ABN 86 000 000 000
in its capacity as trustee of the Origination Fund (as
hereinafter defined) of Xxxxx 0, 00 Xxxxxx Xxxxxx,
Xxxxxx, Xxx Xxxxx Xxxxx
(NOTE HOLDER)
3 ME PORTFOLIO MANAGEMENT LIMITED
ABN 79 005 964 134
in its capacity as manager of the Securitisation Fund
of Xxxxx 00, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx
(XX MANAGER)
4. ME PORTFOLIO MANAGEMENT LIMITED
ABN 79 005 964 134
in its capacity as manager of the Origination Fund
of Xxxxx 00, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx
(OF MANAGER)
RECITALS
A. The Issuer is the trustee, and the SF Manager is the
manager, of the Securitisation Fund.
B. The Note Holder is the trustee, and the OF Manager is
the manager, of the Origination Fund.
C. The SF Manager has requested the OF Manager to direct
the Note Holder to make available a loan facility to
the Issuer under which the Issuer will issue notes to
the Note Holder and the Note Holder will purchase
notes from the Issuer.
D. The Note Holder and the OF Manager have agreed to make
available a facility on the terms and conditions of
this agreement and have agreed with the SF Manager and
the Issuer that the terms and conditions of the issue
and repayment of any such notes are those contained in
this agreement.
THE PARTIES AGREE
in consideration of, among other things, the mutual promises
contained in this agreement:
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1 DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this agreement, unless the context otherwise requires:
ATTORNEY means an attorney appointed under a Material Document;
AUTHORISATION includes:
(a) any consent, registration, filing, agreement, notarisation,
certificate, licence, approval, permit, authority or
exemption from, by or with a Governmental Agency; and
(b) any consent or authorisation regarded as given by a
Governmental Agency due to the expiration of the period
specified by a statute within which the Governmental Agency
should have acted if it wished to proscribe or limit
anything already lodged, registered or notified under that
statute;
AUTHORISED INVESTMENTS has the meaning given to it in the Master
Trust Deed;
BANK has the meaning given to it in the Master Trust Deed;
BANKING DAY means a day on which Banks are open for business in
Melbourne and Sydney excluding a Saturday, Sunday or public
holiday;
BOND ISSUE DATE has the meaning given to it in the Master Trust
Deed;
BOND ISSUE DIRECTION has the meaning given to it in the Master
Trust Deed;
CHARGE means the charge created under the Security Trust Deed;
CLASS A NOTE has the meaning given to it in the Supplementary
Bond Terms Notice;
CLASS B NOTE has the meaning given to it in the Supplementary
Bond Terms Notice;
COLLECTIONS has the meaning given to it in the Supplementary
Bond Terms Notice;
CONDITIONS means the terms and conditions as set out in
schedule 2;
DESIGNATED RATING AGENCY has the meaning given to it in the
Master Trust Deed;
DOLLARS, A$ and $ means the lawful currency of the Commonwealth
of Australia;
ENCUMBRANCE means an interest or power:
(a) reserved in or over an interest in any asset including, but
not limited to, any retention of title; or
(b) created or otherwise arising in or over any interest in any
asset under a xxxx of sale, mortgage, charge, lien, pledge,
trust or power,
by way of security for the payment of a debt, any other monetary
obligation or the performance of any other obligation, and
includes, but is not limited to, any agreement to grant or
create any of the above;
ENTITY has the same meaning as in Chapter 2E of the Corporations
Act;
EVENT OF DEFAULT means an Event of Default as defined in the
Security Trust Deed;
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EXCLUDED TAX means any Tax imposed by any jurisdiction on the
net income of the Note Holder;
FACILITY means the payment funding facility made available by
the Note Holder to the Issuer under this agreement (by purchase
of Notes);
FITCH RATINGS has the meaning given to it in the Supplementary
Bond Terms Notice;
FUNDING DATE means the date on which a Note will be issued (as
stipulated in the Funding Notice) and the date on which a
Funding Portion is, or is to be, advanced or regarded as
advanced to the Issuer under this agreement;
FUNDING NOTICE means a notice given, or to be given, under
clauses 4.1 and 4.2;
FUNDING PORTION means in relation to any Note, the principal
amount of that Note to be provided or outstanding at that time
(as the case may be);
GOVERNMENTAL AGENCY means any government or any governmental,
semi-governmental, administrative, fiscal or judicial body,
department, commission, authority, tribunal, agency or entity;
GST has the same meaning as in the A New Tax System (Goods and
Services Tax) Xxx 0000;
INTEREST AMOUNT means for any Payment Period all of the net
income derived from the investment of the net proceeds of the
Principal Outstanding for that Payment Period;
LENDING OFFICE means the office of the Note Holder set out in
clause 15.4(a)(1)(A) or such other office as notified by the
Note Holder under this agreement;
LIQUIDITY NOTES has the meaning given to it in the Supplementary
Bond Terms Notice;
MASTER TRUST DEED means the Master Trust Deed dated 4 July 1994
made between Perpetual Trustees Australia Limited and ME
Portfolio Management Limited, and providing for the
establishment of a series of trusts known collectively as the
Superannuation Members' Home Loans Trusts, as amended from time
to time;
MATERIAL DOCUMENTS means:
(a) this agreement (including each Note); and
(b) the Security Trust Deed; and
(c) the Supplementary Bond Terms Notice.
XXXXX'X has the meaning given to it in the Master Trust Deed;
MORTGAGE has the meaning given to it in the Master Trust Deed;
NOTE means a note issued under clauses 2 and 4;
NOTE HOLDER means Perpetual Trustees Australia Limited or any
person entitled to be registered as a Note Holder in accordance
with this agreement;
OFFICER means:
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Payment Funding Facility
(a) in relation to the Issuer and Note Holder, a director,
secretary or other person whose title contains the word or
words "manager" or "counsel" or a person performing the
functions of any of them; and
(b) in relation to the SF Manager and OF Manager, a director or
a secretary, or a person notified to be an authorised
officer of the relevant party.
ORIGINATION FUND means Superannuation Members' Home Loans
Origination Fund No. 3 established pursuant to the Master Trust
Deed;
OUTSTANDING MONEYS means all debts and monetary liabilities of
the Issuer to the Note Holder under or in relation to any
Material Document irrespective of whether the debts or
liabilities:
(a) are present or future;
(b) are actual, prospective, contingent or otherwise;
(c) are at any time ascertained or unascertained;
(d) are owed or incurred by or on account of the Issuer alone,
or severally or jointly with any other person;
(e) are owed to or incurred for the account of the Note Holder
alone, or severally or jointly with any other person;
(f) are owed or incurred as principal, interest, fees, charges,
taxes, duties or other imposts, damages (whether for breach
of contract or tort or incurred on any other ground),
losses, costs or expenses, or on any other account; or
comprise any combination of the above, after:
(a) deducting the aggregate amount of any payments made under
clause 3(b); and
(b) adding the aggregate of any amounts recovered by or
otherwise paid to the Issuer where the original non-payment
of those amounts was a Payment Amount Shortfall;
OUTSTANDING PRINCIPAL BALANCE in respect of a Mortgage has the
same meaning as in the Supplementary Bond Terms Notice;
OVERDUE RATE means on any date the rate percent per annum
calculated by the OF Manager which is the rate, expressed as a
percentage, derived from dividing the Interest Amount by the
average of the Principal Outstanding on each Banking Day during
the Payment Period immediately preceding the date the Overdue
Rate is calculated;
PAYMENT AMOUNT means an amount payable by the Issuer to the
counterparty to any Enhancement or Interest Hedge (as those
terms are defined in the Security Trust Deed) in respect of any
loss suffered by the counterparty as a consequence of the
termination before its due date of any arrangement to hedge or
otherwise manage the Issuer's interest rate exposure for any
Mortgage being an Asset of the Securitisation Fund where all or
part of the interest payable is subject to a fixed rate;
PAYMENT AMOUNT SHORTFALL means as the case requires:
(a) a Recovery Shortfall; and
(b) a Threshold Rate Shortfall;
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PAYMENT DATE has the meaning given to it in the Supplementary
Bond Terms Notice;
PAYMENT PERIOD means the period from and including the last
Payment Date to but excluding the next Payment Date except that
the first Payment Period will commence on the relevant Funding
Date and the last Payment Period will end on the Termination
Date;
PERMITTED ENCUMBRANCE means:
(a) every lien created by operation of law securing an
obligation that is not yet due;
(b) every lien for the unpaid balance of purchase moneys under
an instalment contract entered into in the ordinary course
of business;
(c) every lien for the unpaid balance of moneys owing for
repairs; and
(d) an Encumbrance granted under a Transaction Document,
which affects or relates to any of the assets of the
Securitisation Fund;
POWER means any right, power, authority, discretion or remedy
conferred on the Note Holder or OF Manager, or a Receiver or an
Attorney by any Transaction Document or any applicable law;
PRINCIPAL OUTSTANDING means at any time the aggregate principal
amount of all outstanding Funding Portions at that time after:
(a) deducting the aggregate amount of any payments made under
clause 3(b); and
(b) adding the aggregate of any amounts recovered by or
otherwise paid to the Issuer in respect of a Payment Amount
Shortfall;
RECOVERY SHORTFALL means an amount equal to the difference
between the Payment Amount and the amount recovered or
recoverable under or pursuant to the Mortgage in respect of the
Payment Amount;
REDRAW FUNDING FACILITY has the meaning given to it in the
Security Trust Deed;
REGISTER means the register of Note Holders maintained by the
Issuer;
S&P has the meaning given to it in the Master Trust Deed;
SAME DAY FUNDS means bank cheque or other immediately available
funds;
SECURITISATION FUND means the Securitisation Fund constituted
under the Master Trust Deed known as SMHL Global Fund No. 5;
SECURITY TRUST DEED means the security trust deed (as amended
from time to time) in respect of the Securitisation Fund between
the Issuer, the SF Manager, Perpetual Trustee Company Limited
ABN 42 000 001 007 (as security trustee) and The Bank of New
York (as note trustee);
SET DATE means in relation to the initial Payment Period, the
Funding Date, and in relation to each subsequent Payment Period,
the Payment Date at the commencement of that Payment Period;
SUPPLEMENTARY BOND TERMS NOTICE means the Supplementary Bond
Terms Notice dated on or about the date of this agreement in
respect of the Securitisation Fund and providing terms of issue
for Class A Notes and Class B Notes;
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TAX means:
(a) any tax (including goods and services tax), levy, charge,
impost, duty, fee, deduction, compulsory loan or
withholding; or
(b) any income, stamp or transaction duty, tax or charge,
which is assessed, levied, imposed or collected by any
Governmental Agency and includes, but is not limited to, any
interest, fine, penalty, charge, fee or other amount imposed on
or in respect of any of the above;
TERMINATION DATE means, the first to occur of:
(a) the date on which the Total Outstanding Principal Balance
is zero or will be zero following any payments made on the
relevant Payment Date (as defined under the Supplementary
Bond Terms Notice); and
(b) the date by which the SF Manager has received written
notification from each Designated Rating Agency (as defined
in the Master Trust Deed) that the provision of the
Facility and the subscription and issue of Notes under the
Facility (including any outstanding Notes) is no longer
necessary in order to maintain the "AAA", "Aaa" and "AAA"
rating of notes in the Securitisation Fund known as the
"Class A Notes" by S&P, Xxxxx'x and Xxxxx Ratings
respectively;
THRESHOLD RATE SHORTFALL means any shortfall arising under any
determination under clause 11(a) of the Supplementary Bond Terms
Notice;
TOTAL OUTSTANDING PRINCIPAL BALANCE has the meaning given to it
under the Supplementary Bond Terms Notice;
TRANSACTION DOCUMENT has the meaning given to it in the Master
Trust Deed and includes this agreement and any document or
agreement entered into or given under it (including Notes);
TRANSACTION PARTY means:
(a) the Issuer; or
(b) the SF Manager.
1.2 INTERPRETATION
In this agreement, headings and boldings are for convenience
only and do not affect the interpretation of this agreement and,
unless the context otherwise requires:
(a) words importing the singular include the plural and vice
versa;
(b) words importing a gender include any gender;
(c) other parts of speech and grammatical forms of a word or
phrase defined in this agreement have a corresponding
meaning;
(d) an expression importing a natural person includes any
company, partnership, joint venture, association,
corporation or other body corporate and any Governmental
Agency;
(e) a reference to any thing (including, but not limited to,
any right) includes a part of that thing;
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(f) a reference to a part, clause, party, annexure, exhibit or
schedule is a reference to a part and clause of, and a
party, annexure, exhibit and schedule to, this agreement
and a reference to this agreement includes any annexure,
exhibit and schedule;
(g) a reference to a statute, regulation, proclamation,
ordinance or by-law includes all statutes, regulations,
proclamations, ordinances or by-laws amending,
consolidating or replacing it, and a reference to a statute
includes all regulations, proclamations, ordinances and
by-laws issued under that statute;
(h) a reference to a document includes all amendments or
supplements to, or replacements or novations of, that
document;
(i) a reference to liquidation includes appointment of an
administrator, compromise, arrangement, merger,
amalgamation, reconstruction, winding up, dissolution,
assignment for the benefit of creditors, scheme,
composition or arrangement with creditors, insolvency,
bankruptcy, or a similar procedure or, where applicable,
changes in the constitution of any partnership or person or
death;
(j) a reference to a party to any document includes that
party's successors and permitted assigns;
(k) a reference to an agreement other than this agreement
includes an undertaking, deed, agreement or legally
enforceable arrangement or understanding whether or not in
writing;
(l) a reference to an asset includes all property of any
nature, including, but not limited to, a business, and all
rights, revenues and benefits;
(m) a reference to a document includes any agreement in
writing, or any certificate, notice, instrument or other
document of any kind;
(n) no provision of this agreement will be construed adversely
to a party solely on the ground that the party was
responsible for the preparation of this agreement or that
provision;
(o) a reference to the drawing, accepting, endorsing or other
dealing with or of a Xxxx refers to a drawing, accepting,
endorsing or dealing within the meaning of the Bills of
Exchange Xxx 0000;
(p) a reference to a body, other than a party to this agreement
(including, without limitation, an institute, association
or authority), whether statutory or not:
(1) which ceases to exist; or
(2) whose powers or functions are transferred to another
body,
is a reference to the body which replaces it or which
substantially succeeds to its powers or functions; and
(q) the Issuer or the Note Holder will only be considered to
have knowledge or awareness of, or notice of, a thing, or
grounds to believe any thing, by virtue of the officers of
the Issuer or the Note Holder having day to day
responsibility for the administration of the Origination
Fund or the Securitisation Fund (as the case may be) having
actual knowledge, actual
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awareness or actual notice of that thing, or grounds or
reason to believe that thing (and similar references will
be interpreted in this way).
1.3 BANKING DAY
Unless otherwise stipulated in this agreement, where the day on
or by which any thing is to be done is not a Banking Day, that
thing must be done on or by the succeeding Banking Day.
1.4 TRANSACTION DOCUMENT
The parties agree that this agreement and any document or
agreement entered into or given under it (including a Note) is a
"Transaction Document" for the purposes of the Master Trust
Deed.
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2 THE NOTES
2.1 APPLICATION FOR AND ISSUE OF NOTES
(a) The SF Manager may request that the Issuer issues a Note to
the Note Holder by:
(1) requesting a Note be issued from "SMHL Global Fund
No. 5";
(2) specifying the principal amount of the Note required;
(3) specifying the proposed date of issue of the Note; and
(4) providing to the Note Holder and the OF Manager a
Funding Notice (and a copy to the Issuer) pursuant to
clause 4.
(b) If the SF Manager has requested that the Issuer issues a
Note in accordance with clause 2.1(a) and the OF Manager
and Note Holder agree to subscribe for the Note as
requested by the SF Manager, the Issuer must, on the terms
of this agreement, issue the Note to the Note Holder in
consideration for the principal amount provided that the OF
Manager and Note Holder have complied with clause 5.1.
(c) The parties agree that the terms and conditions contained
in this agreement, the Supplementary Bond Terms Notice (to
the extent applicable) and the Security Trust Deed (to the
extent applicable) govern the issue and repayment of the
Notes.
2.2 ACKNOWLEDGMENT OF INDEBTEDNESS
The Issuer acknowledges its indebtedness to the Note Holder in
respect of each Note issued under this agreement.
2.3 OBLIGATIONS UNDER NOTES
(a) The obligations of the Issuer under the Notes are
constituted by, and specified in, this agreement and in the
Conditions.
(b) Each Note is a separate debt of the Issuer.
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(c) The entitlement of any person to a Note is determined by
registration as a Note Holder of that Note.
(d) The making of, or giving effect to, a manifest error in an
inscription in the Register will not avoid the creation or
transfer of a Note.
2.4 OWNERSHIP OF NOTES
(a) A Note may be transferred by the Note Holder to any person
in accordance with this agreement.
(b) The person whose name is registered as the Note Holder of a
Note in the Register will be treated by the Issuer as the
absolute owner of the Note.
2.5 REGISTER
The Issuer must:
(a) establish and maintain the Register;
(b) enter in the Register in respect of each Note:
(1) the principal amount and principal outstanding in
respect of each Note;
(2) its date of issue and date of redemption and
cancellation; and
(3) the date on which any person becomes, or ceases to be,
a Note Holder.
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3 PURPOSE
(a) Subject to clause 3(b), the Issuer must, and the SF Manager
must cause the Issuer to, keep the proceeds of a Funding
Portion invested in Authorised Investments:
(1) which are rated "AAA" or "A-1+" by S&P, "Prime-1" or
"Aaa" by Xxxxx'x and "AAA" or "F1+" by Fitch Ratings,
or such other rating as any Designated Rating Agency
may approve from time to time;
(2) which mature (except in the case of call deposits with
a Bank) not later than the day before the Payment Date
immediately after the day on which they are made; and
(3) otherwise in accordance with the Master Trust Deed.
(b) The Issuer must and the SF Manager must cause the Issuer
to, apply funds invested under clause 3(a):
(1) to the extent of any Payment Amount Shortfall and
subject to clause 5.5(b)(3), towards Collections in
accordance with the Supplementary Bond Terms Notice;
and
(2) otherwise as required under clause 5 or clause 11.
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4 FUNDING PROCEDURES
4.1 DELIVERY OF FUNDING NOTICE
If the SF Manager determines that the Issuer requires a Note to
be issued, the SF Manager must deliver to the Note Holder and
the OF Manager a Funding Notice in accordance with this
clause 4.
4.2 REQUIREMENTS FOR A FUNDING NOTICE
A Funding Notice:
(a) must be in writing in the form of, and specifying the
matters set out in, schedule 1;
(b) must be received by the Note Holder and the OF Manager at
least 2 Banking Days before the proposed Funding Date (or
such shorter period as the OF Manager may agree in
writing);
(c) must be signed by an Officer of the SF Manager and an
Officer of the Issuer;
(d) whether or not stated in the notice, constitutes a
representation and warranty by each of the Issuer and the
SF Manager that so far as it is aware (without the need to
make enquiry) each representation and warranty set out in
clause 7 and given by it is true, correct and not
misleading as if made at the date of the Funding Notice and
the Funding Date in respect of the facts and circumstances
then subsisting, but if the representation and warranty
constituted by this clause 4.2(d) is not correct the
Funding Notice must contain a statement to that effect and
must set out full details of any exceptions and the reasons
and any remedial action taken or proposed. Any such
statement is without prejudice to the rights of the Note
Holder and OF Manager.
4.3 COPY OF THE FUNDING NOTICE TO BE PROVIDED TO THE ISSUER
A copy of each Funding Notice must be provided to the Issuer at
least 1 Banking Day before the proposed Funding Date together
with the Bond Issue Direction for the issue of the Notes.
4.4 IRREVOCABILITY OF FUNDING NOTICE
The Note Holder or the OF Manager may, in its absolute
discretion, decide to decline to provide the requested funding
specified in the Funding Notice, in which case the OF Manager
must notify each of the Issuer and the SF Manager in writing.
Following agreement by the Note Holder and the OF Manager to the
issue of the relevant Note specified in the Funding Notice, the
Issuer is irrevocably committed to, and the SF Manager is
irrevocably committed to cause the Issuer to, issue the relevant
Note and to draw Funding Portions from the Note Holder in
accordance with the Funding Notice given to the OF Manager and
the Note Holder.
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5 LOAN FACILITY
5.1 PROVISION OF FUNDING PORTIONS
If the SF Manager gives a Funding Notice in accordance with
clause 4 and the OF Manager and the Note Holder agree to the
issue of the specified Note, then, subject to this agreement
(including, without limitation, clause 10), the Note Holder
must, and the OF Manager must cause the Note Holder to, provide
the relevant Funding Portion under the Facility as payment for
the relevant Note in Same Day Funds in Dollars not later than 12
noon (Melbourne time) on the specified Funding Date and in
accordance with that Funding Notice.
5.2 REPAYMENT OF OUTSTANDING MONEYS
(a) If after having regard to clause 5.5, the SF Manager
determines that on any Banking Day the Principal
Outstanding is greater than the amount agreed from time to
time by the Manager and each Designated Rating Agency the
Issuer must, and the SF Manager must cause the Issuer to,
repay to the Note Holder so much of the Principal
Outstanding so that the Principal Outstanding immediately
after that repayment will not cause the current rating of
the Class A Notes and the Class B Notes issued by the
Issuer to be downgraded or withdrawn by any Designated
Rating Agencies.
(b) The Issuer must, and the SF Manager must cause the Issuer
to, repay the Principal Outstanding, if any, in full on the
Termination Date.
(c) The Issuer must, and the SF Manager must cause the Issuer
to, pay or repay the balance of the Outstanding Moneys in
full to the Note Holder on the Termination Date or on such
other date on which the Principal Outstanding is, or is
required to be, repaid in full.
(d) The Issuer is not obliged to make a repayment under this
clause 5.2 other than out of the funds invested or
available for investment under clause 3.
5.3 INTEREST
(a)
(1) On each Payment Date, the Issuer must, and the SF
Manager must cause the Issuer to, pay to the Note
Holder interest on the Payment Period being an amount
equal to the Interest Amount.
(2) The Issuer is not obliged to pay interest under clause
5.3(a)(1) other than out of the Interest Amount.
(b) The Issuer and the SF Manager acknowledge that the Interest
Amount is not available to meet any payment obligation of
the Issuer other than its obligation to pay interest under
clauses 5.3(a) and 5.3(c).
(c) If on any Payment Date, the Interest Amount in respect of
the relevant Payment Period is not paid on the whole amount
of the Principal Outstanding:
(1) the Interest Amount shall accrue interest at the
Overdue Rate for the next Payment Period;
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(2) the Interest Amount and interest accrued under
paragraph (1) shall become payable on the next Payment
Date; and
(3) to the extent to which any unpaid Interest Amount
(including any interest accrued under paragraph (1))
remains unpaid after that next Payment Date it will
again be subject to paragraphs (1) and (2) for each
subsequent Payment Period and Payment Date until it
has been paid.
(d) Interest must be calculated in arrears on daily balances on
the basis of a 365 day year and for the actual number of
days elapsed during the relevant period.
5.4 ORDER OF REPAYMENT
(a) In making repayments under clause 5.2, the Issuer must, and
the SF Manager must cause the Issuer to, apply the amount
of the repayment to repay the Principal Outstanding under
the Notes in order of the date of issue of the Notes so
that the Notes issued earlier in time are repaid first.
(b) The Note Holder must, and the OF Manager must cause the
Note Holder to, apply repayments in accordance with clause
6.3(a).
(c) The OF Manager must advise the Issuer and the SF Manager in
writing of the Notes which have been wholly or partly
repaid, the amount of the repayment and the Principal
Outstanding under that Note.
5.5 ACKNOWLEDGMENTS
(a) The Issuer acknowledges that if an amount is paid out of
the Securitisation Fund as a consequence of a Payment
Amount Shortfall, and an amount referable to that Payment
Amount Shortfall is subsequently recovered by or otherwise
paid to the Issuer, such amounts are to be available for
repayment under clause 5.
(b) Each of the parties acknowledges that:
(1) the Issuer will not be able to issue the Class A Notes
or the Class B Notes unless and until a Funding
Portion has been provided and maintained under clause
5.1 such that the Principal Outstanding is not less
than 0.00% of the Outstanding Principal Balance of the
Loans secured by the Mortgages comprised in the Assets
of Securitisation Fund on the issue date of the notes;
(2) in order to maintain the assigned rating by each
Designated Rating Agency (which rating confirmation by
each Designated Rating Agency must be in writing) of
the Class A Notes or the Class B Notes it may be
necessary to increase the amount of the Principal
Outstanding to an amount in excess of 0.00% of the
Outstanding Principal Balance of the Loans secured by
Mortgages comprised in the Assets of Securitisation
Fund;
(3) the amount of the Principal Outstanding up to an
amount equal to 0.00% of the Outstanding Principal
Balance of the Loans secured by Mortgages comprised in
the Assets of Securitisation Fund is only available in
respect of Payment Amount Shortfalls being
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Recovery Shortfalls and any Principal Outstanding in
excess of 0.00% of the Outstanding Principal Balance
of the Loans secured by Mortgages comprised in the
Assets of Securitisation Fund is only available in
respect of Payment Amount Shortfalls being Threshold
Rate Shortfalls; and
(4) if a Threshold Rate Shortfall exists and the amount of
the Funding Portion is not increased as contemplated
by clause 5.5(b)(2), the SF Manager must comply with
clauses 12(a) and (b) of the Supplementary Bond Terms
Notice.
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6 PAYMENTS
6.1 MANNER OF PAYMENTS
All payments to the Note Holder under the Transaction Documents
must be made:
(a) in Same Day Funds;
(b) in Dollars;
(c) not later than 11:00 am (Melbourne time) on the due date,
to the account of the Note Holder specified by the OF Manager to
the Issuer or in such other manner to an account of the Note
Holder as the OF Manager directs from time to time.
6.2 PAYMENTS ON A BANKING DAY
If a payment is due on a day which is not a Banking Day, the due
date for that payment is the next Banking Day and interest must
be adjusted accordingly.
6.3 APPROPRIATION OF PAYMENTS
(a) All payments made by the Issuer to the Note Holder under
this agreement may be appropriated as between principal,
interest and other amounts, as the OF Manager in its
absolute discretion determines or, failing any
determination, in the following order:
(1) firstly, towards reimbursements of all fees, costs,
expenses, charges, damages and indemnity payments
incurred or due and owing by the Transaction Party
under the Material Documents;
(2) secondly, towards payment of interest due and payable
under the Material Documents; and
(3) thirdly, towards repayment of the Principal
Outstanding.
(b) Any appropriation under clause 6.3(a) overrides any
appropriation made by the Issuer.
6.4 PAYMENTS IN GROSS
All payments which a Transaction Party is required to make under
any Material Document must be:
(a) without any set-off, counterclaim or condition; and
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(b) without any deduction or withholding for any Tax or any
other reason, unless the Transaction Party is required to
make a deduction or withholding by applicable law.
6.5 AMOUNTS PAYABLE ON DEMAND
If any amount payable by a Transaction Party under any Material
Document is not expressed to be payable on a specified date that
amount is payable by the Transaction Party on demand by the Note
Holder or OF Manager.
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7 REPRESENTATIONS AND WARRANTIES
7.1 BY THE ISSUER
The Issuer hereby represents and warrants to the OF Manager and
Note Holder that:
(a) (DUE INCORPORATION): it is duly incorporated and has the
corporate power to own its property and to carry on its
business as is now being conducted;
(b) (CONSTITUTION): the execution delivery and performance of
this agreement and any Note does not and will not violate
its Constitution;
(c) (CORPORATE POWER): it has the power and has taken all
corporate and other action required to enter into this
agreement and each Note and to authorise the execution and
delivery of this agreement and each Note and the
performance of its obligations thereunder;
(d) (FILINGS): it has filed all corporate notices and effected
all registrations with the Australian Securities and
Investments Commission or similar office in the
jurisdiction of incorporation and in any other jurisdiction
as required by law and all such filings and registrations
are current, complete and accurate except that this
representation and warranty does not apply to the filing of
an ASIC form 309 in relation to the creation of the Charge;
(e) (LEGALLY BINDING OBLIGATION): this agreement and each Note
constitutes or will constitute a valid, legally binding and
enforceable obligation of it in accordance with its terms
except as such enforceability may be limited by any
applicable bankruptcy, insolvency, reorganisation,
moratorium or trust or other similar laws affecting
creditors' rights generally;
(f) (EXECUTION, DELIVERY AND PERFORMANCE): the execution,
delivery and performance of this agreement and each Note by
it does not violate any existing law or regulation or any
document or agreement to which it is a party in either case
in its capacity as trustee of the Securitisation Fund or
which is binding upon it or any of its assets in its
capacity as trustee of the Securitisation Fund;
(g) (AUTHORISATION): all consents, licences, approvals and
authorisations of every Government Agency required to be
obtained by it in connection with the execution and
delivery of, and performance of its obligations under, this
agreement and any Note have been obtained and are valid and
subsisting;
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(h) (SECURITISATION FUND VALIDLY CREATED): the Securitisation
Fund has been validly created and is in existence at the
date of this agreement;
(i) (SOLE TRUSTEE): it has been validly appointed as trustee of
the Securitisation Fund and is presently the sole trustee
of the Securitisation Fund;
(j) (MASTER TRUST DEED): the Securitisation Fund is constituted
pursuant to the Master Trust Deed; and
(k) (NO PROCEEDINGS TO REMOVE): no notice has been given to it
and to its knowledge no resolution has been passed or
direction or notice has been given, removing it as trustee
of the Securitisation Fund.
7.2 BY THE SF MANAGER
The SF Manager hereby represents and warrants to the OF Manager
and Note Holder that:
(a) (DUE INCORPORATION): it is duly incorporated and has the
corporate power to own its property and to carry on its
business as is now being conducted;
(b) (CONSTITUTION): the execution, delivery and performance by
it of this agreement and each Note does not and will not
violate its Constitution;
(c) (CORPORATE POWER): the SF Manager has the power and has
taken all corporate and other action required to enter into
this agreement and each Note and to authorise the execution
and delivery of this agreement and each Note and the
performance of its obligations hereunder;
(d) (FILINGS): the SF Manager has filed all corporate notices
and effected all registrations with the Australian
Securities and Investments Commission or similar office in
its jurisdiction of incorporation and in any other
jurisdiction as required by law and all such filings and
registrations are current, complete and accurate;
(e) (LEGALLY BINDING OBLIGATION): this agreement and each Note
constitutes or will constitute a valid, legally binding and
enforceable obligation of the SF Manager in accordance with
its terms except as such enforceability may be limited by
any applicable bankruptcy, insolvency, re-organisation,
moratorium or trust or other similar laws affecting
creditors' rights generally;
(f) (EXECUTION, DELIVERY AND PERFORMANCE): the execution,
delivery and performance of this agreement and each Note by
the SF Manager does not violate any existing law or
regulation or any document or agreement to which the SF
Manager is a party or which is binding upon it or any of
its assets; and
(g) (AUTHORISATION): all consents, licences, approvals and
authorisations of every Government Agency required to be
obtained by the SF Manager in connection with the
execution, delivery and performance of this agreement and
each Note have been obtained and are valid and subsisting.
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7.3 SURVIVAL AND REPETITION OF REPRESENTATIONS AND WARRANTIES
The representations and warranties in, or given under, this
agreement including, but not limited to, clauses 7.1 and 7.2:
(a) survive the execution of each Transaction Document; and
(b) are regarded as repeated on each Funding Date with respect
to the facts and circumstances then subsisting.
7.4 RELIANCE BY THE NOTE HOLDER AND OF MANAGER
The Issuer and the SF Manager each acknowledge that the Note
Holder and OF Manager have entered into each Transaction
Document to which it is a party in reliance on the
representations and warranties in, or given under, this
agreement including, but not limited to, clauses 7.1 and 7.2.
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8 UNDERTAKINGS
8.1 TERM OF UNDERTAKINGS
Unless the OF Manager otherwise agrees in writing, until the
Outstanding Moneys are fully and finally repaid the Issuer and
the SF Manager must, at its own cost (but without prejudice to
clause 10 in the case of the Issuer), comply with the
undertakings in this clause 8.
8.2 COMPLIANCE WITH COVENANTS
The Issuer must and the SF Manager must ensure that the Issuer
does:
(a) comply with all of its covenants and obligations under the
Security Trust Deed and Supplementary Bond Terms Notice;
and
(b) wherever it is required to obtain consent of the Security
Trustee (as defined in the Security Trust Deed) under the
Security Trust Deed also obtain the prior written consent
of the Note Holder and OF Manager.
8.3 NOTIFY EVENTS OF DEFAULT
On and from the Termination Date, each of the SF Manager and the
Issuer must immediately notify all the other parties to this
agreement in writing if it becomes actually aware of the
occurrence of any Event of Default and must provide full and
complete details in relation thereto immediately upon becoming
actually aware of such details.
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9 EVENTS OF DEFAULT
9.1 OPERATION OF CLAUSE 9
Clauses 9.2 to 9.4 only have effect on and from the Termination
Date.
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9.2 EFFECT OF EVENT OF DEFAULT
(a) Upon or at any time after the occurrence of an Event of
Default the Note Holder or the OF Manager may by notice to
the Issuer and the SF Manager declare that the Outstanding
Moneys are immediately due and payable.
(b) The Issuer must and the SF Manager must cause the Issuer to
upon receipt of a notice under clause 9.2(a) immediately
repay in full the Outstanding Moneys to the Note Holder.
9.3 ISSUER TO CONTINUE TO PERFORM
(a) If the Note Holder or OF Manager makes any declaration
under clause 9.2:
(1) the declaration does not affect or diminish the duties
and obligations of the Issuer or the SF Manager under
the Transaction Documents; and
(2) each of the Issuer and the SF Manager must continue to
perform its obligations under the Transaction
Documents as if the declaration had not been made,
subject to any directions that may be given by the
Note Holder or the OF Manager from time to time under
any Transaction Document.
(b) Clause 9.3(a) does not affect the obligations of the Issuer
or the SF Manager under clause 9.2.
9.4 ENFORCEMENT
(a) The Material Documents may be enforced without notice to or
consent by the Issuer or SF Manager or any other person
even if the Note Holder accepts any part of the Outstanding
Moneys after an Event of Default or there has been any
other Event of Default.
(b) Neither the Note Holder nor the OF Manager is liable to any
Transaction Party for any loss or damage a Transaction
Party may suffer, incur or be liable for arising out of or
in connection with the Note Holder or OF Manager exercising
any Power under any Material Document.
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10 TRUSTEE LIMITATION OF LIABILITY PROTECTION
10.1 LIMITATION OF LIABILITY - ISSUER
(a) The Issuer enters into this agreement only in its capacity
as trustee of the Securitisation Fund and no other
capacity. A liability of the Issuer arising under or in
connection with this agreement is limited to and can be
enforced against the Issuer only to the extent to which it
can be satisfied out of property of the Securitisation Fund
out of which the Issuer is actually indemnified for the
liability. This limitation of the Issuer's liability
applies despite any other provision of this agreement and
extends to all liabilities and obligations of the Issuer in
any way connected with any representation, warranty,
conduct, omission, agreement or transaction related to this
agreement.
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(b) The parties other than the Issuer may not xxx the Issuer in
any capacity other than as trustee of the Securitisation
Fund or seek the appointment of a receiver (except in
relation to property of the Securitisation Fund), a
liquidator, an administrator or any similar person to the
Issuer or prove in any liquidation, administration or
arrangement of or affecting the Issuer (except in relation
to property of the Securitisation Fund).
(c) The provisions of this clause 10.1 shall not apply to any
obligation or liability of the Issuer to the extent that it
is not satisfied because under the Master Trust Deed
establishing the Securitisation Fund or by operation of law
there is a reduction in the extent of the Issuer's
indemnification out of the assets of the Securitisation
Fund, as a result of the Issuer's fraud, negligence or
wilful default.
(d) It is acknowledged that the SF Manager is responsible under
the Master Trust Deed establishing the Securitisation Fund
for performing a variety of obligations relating to the
Securitisation Fund, including under this agreement. No act
or omission of the Issuer (including any related failure to
satisfy its obligations or breach of representation or
warranty under this agreement) will be considered fraud,
negligence or wilful default of the Issuer for the purposes
of paragraph (c) of this clause 10.1 to the extent to which
the act or omission was caused or contributed to by any
failure by the SF Manager or any other person to fulfil its
obligations relating to the Securitisation Fund or by any
other act or omission of the SF Manager or any other
person.
(e) No attorney, agent, receiver or receiver and manager
appointed in accordance with this agreement has authority
to act on behalf of the Trustee in a way which exposes the
Issuer to any personal liability and no act or omission of
any such person will be considered fraud, negligence or
wilful default of the Issuer for the purposes of paragraph
(c) of this clause 10.1.
(f) The Issuer is not obliged to do or refrain from doing
anything under this agreement (including incur any
liability) unless the Issuer's liability is limited in the
same manner as set out in paragraphs (a) to (c) of this
clause.
10.2 LIMITATION OF LIABILITY - NOTE HOLDER
(a) The Note Holder enters into this agreement only in its
capacity as trustee of the Origination Fund and no other
capacity. A liability arising under or in connection with
this agreement is limited to and can be enforced against
the Note Holder only to the extent to which it can be
satisfied out of property of the Origination Fund out of
which the Note Holder is actually indemnified for the
liability. This limitation of the Note Holder's liability
applies despite any other provision of this agreement and
extends to all liabilities and obligations of the Note
Holder in any way connected with any representation,
warranty, conduct, omission, agreement or transaction
related to this agreement.
(b) The parties other than the Note Holder may not xxx the Note
Holder in any capacity other than as trustee of the
Origination Fund or seek the appointment of a receiver
(except in relation to property of the Origination Fund), a
liquidator, an administrator or any similar person to the
Note
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Holder or prove in any liquidation, administration or
arrangement of or affecting the Note Holder (except in
relation to property of the Origination Fund).
(c) The provisions of this clause 10.2 shall not apply to any
obligation or liability of the Note Holder to the extent
that it is not satisfied because under the trust deed
establishing the Origination Fund or by operation of law
there is a reduction in the extent of the Note Holder's
indemnification out of the assets of the Origination Fund,
as a result of the Note Holder's fraud, negligence or
wilful default.
(d) It is acknowledged that the OF Manager is responsible under
the trust deed establishing the Origination Fund for
performing a variety of obligations relating to the
Origination Fund, including under this agreement. No act or
omission of the Note Holder (including any related failure
to satisfy its obligations or breach of representation or
warranty under this agreement) will be considered fraud,
negligence or wilful default of the Note Holder for the
purposes of paragraph (c) of this clause 10.2 to the extent
to which the act or omission was caused or contributed to
by any failure by the OF Manager or any other person to
fulfil its obligations relating to the Origination Fund or
by any other act or omission of the OF Manager or any other
person.
(e) No attorney, agent, receiver or receiver and manager
appointed in accordance with this agreement has authority
to act on behalf of the Trustee in a way which exposes the
Note Holder to any personal liability and no act or
omission of any such person will be considered fraud,
negligence or wilful default of the Note Holder for the
purposes of paragraph (c) of this clause 10.2.
(f) The Note Holder is not obliged to do or refrain from doing
anything under this agreement (including incur any
liability) unless the Note Holder's liability is limited in
the same manner as set out in paragraphs (a) to (c) of this
clause.
10.3 WILFUL DEFAULT OF THE ISSUER AND THE NOTE HOLDER
For the purposes of this agreement, the expression "wilful
default":
(a) in relation to the Issuer and the Note Holder, means a
wilful default of this agreement by the Issuer or the Note
Holder, as the case may be:
(1) other than a default which:
(A) arises out of a breach of a Transaction Document
by a person other than the Issuer, Note Holder or
any person referred to in paragraph 10.3(b) in
relation to the Issuer or the Note Holder;
(B) arises because some other act or omission is a
precondition to the relevant act or omission of
the Issuer or the Note Holder, and that other act
or omission does not occur;
(C) is in accordance with a lawful court order or
direction or is required by law; or
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(D) is in accordance with an instruction or direction
given to it by any person in circumstances where
that person is authorised to do so by any
Transaction Document; and
(2) in circumstances where had it not committed that
default it would have been entitled to recoupment,
reimbursement or a right of indemnity for its costs
and expenses (if any) in complying with this agreement
from the Fund.
(b) A reference to the "fraud", "negligence" or "wilful
default" of the Issuer or the Note Holder means the fraud,
negligence or wilful default of the Issuer or the Note
Holder, as the case may be, and of the officers or
employees, but not of the agents or delegates of the Issuer
or Note Holder, unless the Issuer or the Note Holder is
liable for the acts or omissions of such other person under
the terms of this agreement.
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11 INDEMNITIES
11.1 GENERAL INDEMNITY
(a) The Issuer, to the extent it is permitted or contemplated
under the terms of the Master Trust Deed, indemnifies on a
full indemnity basis (including legal costs and expenses
charged at the usual commercial rates of the relevant legal
services provider) and out of the property of the
Securitisation Fund the Note Holder and OF Manager against
any claim, action, damage, loss, liability, cost, charge,
expense, outgoing or payment which the Note Holder or OF
Manager, as the case may be, or an Attorney pays, suffers,
incurs or is liable for, in respect of any of the
following:
(1) a Funding Portion required by a Funding Notice, not
being made for any reason including, but excluding any
default by the Note Holder or OF Manager, as the case
may be;
(2) any repayment or prepayment of all or part of a
Funding Portion being made on a date other than the
relevant Payment Date.
(b) Without limitation to the indemnity contained in clause
11.1(a), that indemnity includes the amount determined by
the Note Holder or OF Manager, as the case may be, as being
incurred by reason of the liquidation or re-employment of
deposits or other funds acquired or contracted for by the
Note Holder or OF Manager, as the case may be to fund or
maintain the Principal Outstanding or the relevant Funding
Portion and includes, but is not limited to, loss of
margin.
11.2 CONTINUING INDEMNITIES AND EVIDENCE OF LOSS
(a) Each indemnity of the Issuer contained in this agreement is
a continuing obligation of the Issuer, despite:
(1) any settlement of account; or
(2) the occurrence of any other thing,
and remains in full force and effect until:
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(3) all moneys owing, contingently or otherwise, under any
of the Material Documents have been paid in full; and
(4) the Outstanding Moneys are fully and finally repaid.
(b) Each indemnity of the Issuer contained in this agreement is
an additional, separate and independent obligation of the
Issuer and no one indemnity limits the generality of any
other indemnity.
(c) Each indemnity of the Issuer contained in this agreement
survives the termination of any Transaction Document.
(d) A certificate under the hand of an Officer of the OF
Manager detailing the amount of any damage, loss,
liability, cost, charge, expense, outgoing or payment
covered by any indemnity in this agreement is sufficient
evidence unless the contrary is proved.
11.3 FUNDS AVAILABLE FOR INDEMNITY
The obligations of the Issuer under this clause 11 shall be
payable solely to the extent of funds invested or available
for investment under clause 3.
11.4 NEGLIGENCE, WILFUL DEFAULT OR BREACH OF LAW
The indemnities in this clause 11 do not extend to any
liability, loss, cost, charge or expense that is finally and
judicially determined to result from any negligence, wilful
default or breach of law by the other parties to this
agreement.
11.5 NOTIFICATION FROM NOTE HOLDER OR OF MANAGER
If the Note Holder or the OF Manager receives written notice
of any act, matter or thing which may give rise to a
liability, loss, cost, charge or expense in relation to which
the Issuer would be required to indemnify it under this clause
11, the Note Holder or the OF Manager (as the case may be)
will notify the Issuer of that act, matter or thing giving
such details as it is practicable to give as soon as it is
reasonably practicable and in any event within 5 Banking Days
of it coming to its attention, provided that failure to do so
will not result in any loss or reduction in the indemnity
contained in this clause 11 unless the Issuer has been
prejudiced in any material respect by such failure.
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12 TAX, COSTS AND EXPENSES
12.1 TAX
(a) The Issuer must and the SF Manager must cause the Issuer to
pay any Tax, other than an Excluded Tax in respect of the
Securitisation Fund or a Tax referred to in clause 12.3, in
respect of the execution, delivery, performance, release,
discharge, amendment, enforcement or attempted enforcement
or otherwise in respect of any of the following:
(1) any Material Document;
(2) any agreement or document entered into or signed under
any Material Document; and
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(3) any transaction contemplated under any Material
Document or any agreement or document described in
clause 12.1(a)(2).
(b) The Issuer must and the SF Manager must cause the Issuer to
pay any fine, penalty or other cost in respect of a failure
to pay any Tax described in clause 12.1(a) except to the
extent that the fine, penalty or other cost is caused by
the Note Holder's failure to lodge money received from the
Issuer before the due date for lodgement.
(c) The Issuer indemnifies out of the property of the
Securitisation Fund the Note Holder against any amount
payable under clause 12.1(a) or 12.1(b) or both.
12.2 COSTS AND EXPENSES
The Issuer must, and the SF Manager must cause the Issuer to,
pay all costs and expenses of the Note Holder and the OF Manager
and any employee, Officer, agent or contractor of the Note
Holder and the OF Manager in relation to:
(a) the negotiation, preparation, execution, delivery,
stamping, registration, completion, variation and discharge
of any Material Document or any agreement or document
described in clause 12.1(a);
(b) the enforcement, protection or waiver, or attempted
enforcement or protection, of any rights under any Material
Document or any agreement or document described in clause
12.1(a);
(c) the consent or approval of the Note Holder or OF Manager
given under any Material Document or any agreement or
document described in clause 12.1(a); and
(d) any enquiry by any Governmental Agency involving a
Transaction Party,
including, but not limited to, any administration costs of the
Note Holder or the OF Manager, as the case may be, in connection
with the matters referred to in clause 12.2(b) and 12.2(d) and
any legal costs and expenses (charged at the usual commercial
rates of the relevant legal services provider) and any
professional consultant's fees for any of the above on a full
indemnity basis.
12.3 GOODS AND SERVICES TAX
(a) Subject to clause 12.3(b), all amounts referred to in this
Agreement which are relevant in determining a payment to be
made by one party to another are exclusive of GST unless
specifically indicated otherwise.
(b) If a party to this Agreement is entitled to be indemnified
or reimbursed for any cost or expense incurred by that
party, then the indemnity or reimbursement will be
calculated by reference to the GST-exclusive amount of that
cost or expense, increased by an amount equal to that part
of the cost or expense for which the party or its
representative member is not entitled to an input tax
credit but would be entitled if that entity was entitled to
a full input tax credit. For the avoidance of doubt, the
amount calculated under this clause 12.3(b) is a
GST-exclusive amount.
(c) If GST is levied or imposed on or in respect of any supply
made under or in connection with this Agreement for which
the consideration is a monetary payment, then the
consideration provided for that supply is
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increased by an amount equal to the consideration
multiplied by the rate at which that GST is levied or
imposed. This additional amount is payable to the party
with the liability to remit GST in the manner and at the
time when the consideration to which it relates is payable.
(d) The recipient of any consideration for a taxable supply
(whether in money or otherwise) must provide to the other
party a GST tax invoice (or any other thing required under
any legislation concerned with GST) in the form required by
the A New Tax System (Goods and Services Tax) Xxx 0000 or
that other legislation.
(e) Where an "adjustment event", as defined in the A New Tax
System (Goods and Services Tax) Xxx 0000 occurs under this
Agreement, the parties shall do all things necessary to
ensure that the adjustment event may be appropriately
recognised, including the issue of an "adjustment note", as
that term is defined in that Act.
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13 INTEREST ON OVERDUE AMOUNTS
13.1 PAYMENT OF INTEREST
The Issuer must, and the SF Manager must cause the Issuer to,
pay interest on:
(a) any of the Outstanding Moneys due and payable, but unpaid;
and
(b) on any interest payable but unpaid in accordance with
clause 5.
13.2 ACCRUAL OF INTEREST
The interest payable under this clause 13:
(a) accrues from day to day from and including the due date for
payment up to the actual date of payment, before and, as an
additional and independent obligation, after any judgment
or other thing into which the liability to pay the
Outstanding Moneys becomes merged; and
(b) may be capitalised by the Note Holder on any Payment Date.
13.3 RATE OF INTEREST
The rate of interest payable under this clause 13 on any part
of the Outstanding Moneys is the higher of:
(a) the Overdue Rate; and
(b) the rate fixed or payable under a judgment or other thing
referred to in clause 13.2(a).
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14 ASSIGNMENT
14.1 ASSIGNMENT BY TRANSACTION PARTY
A Transaction Party must not transfer or assign any of its
rights or obligations under any Material Document without the
prior written consent of the OF Manager, the Note Holder and
each Designated Rating Agency.
14.2 ASSIGNMENT BY NOTE HOLDER
Neither the Note Holder nor the OF Manager may assign any of its
rights or transfer by novation any of its rights and obligations
under this agreement or any Note without the prior written
consent of the other parties and a prior written notice of such
assignment been given to each Designated Rating Agency. Any such
assignment must contain an acknowledgment that the assignee is
bound by the provisions of this agreement.
14.3 ASSIST TRANSFER OR ASSIGNMENT
At the request of the Note Holder or OF Manager, the Issuer and
the SF Manager must do any thing including, but not limited to,
executing any documents or amending any Material Document, to
effect any transfer or assignment under this clause 14.
14.4 PARTICIPATION PERMITTED
The Note Holder and OF Manager may grant by way of
sub-participation (being a right to share in the financial
effects of this agreement, without any rights against the
Issuer) all or part of the Note Holder's or OF Manager's, as the
case may be, rights and benefits under this agreement to any
other person without having to obtain the consent of or to
notify the Issuer or the SF Manager.
14.5 LENDING OFFICE
(a) The Note Holder may change its Lending Office at any time.
(b) The Note Holder must promptly notify the Issuer and the SF
Manager of any such change.
14.6 DISCLOSURE
Any party may disclose to a proposed assignee, transferee or
sub-participant any information relating to any other party or
the Transaction Documents whether or not confidential and
whether or not the disclosure would be in breach of any law or
of any duty owed to that other party.
14.7 NO INCREASE IN COSTS
If the Note Holder or OF Manager assigns or transfers any of its
rights or obligations under any Material Document or changes its
Lending Office the Issuer is not required to pay any net
increase in the aggregate amount of costs, Taxes, fees or
charges which:
(a) are a direct consequence of the transfer or assignment or
change of Lending Office; and
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Payment Funding Facility
(b) the Note Holder or OF Manager as the case may be, or its
transferee or assignee was aware of or ought reasonably to
have been aware of, at the time of the transfer or
assignment or change of Lending Office.
--------------------------------------------------------------------------------
15 GENERAL
15.1 CONFIDENTIAL INFORMATION
The Note Holder and OF Manager may, for the purpose of
exercising any Power, disclose to any person any documents or
records of, or information about, any Transaction Document, or
the assets, business or affairs of any Transaction Party,
whether or not confidential and whether or not the disclosure
would be in breach of any law or of any duty owed to any
Transaction Party.
15.2 PERFORMANCE BY NOTE HOLDER OF OBLIGATIONS
If a Transaction Party defaults in fully and punctually
performing any obligation contained or implied in any
Transaction Document, the Note Holder and OF Manager may,
without prejudice to any Power do all things necessary or
desirable, in the opinion of the Note Holder or OF Manager, as
the case may be, to make good or attempt to make good that
default to the satisfaction of the Note Holder or OF Manager, as
the case may be.
15.3 TRANSACTION PARTY TO BEAR COST
Without prejudice to clause 10, any thing which must be done by
a Transaction Party under any Material Document, whether or not
at the request of the Note Holder or OF Manager, must be done at
the cost of the Transaction Party.
15.4 NOTICES
(a) Any notice or other communication including, but not
limited to, any request, demand, consent or approval, to or
by a party to any Material Document:
(1) must be in legible writing and in English addressed as
shown below (or if sent by facsimile, to the facsimile
numbers below) and marked to the attention of the
following:
(A) if to the Note Holder:
Address: Xxxxx 0
0 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XXX, 0000
Attention: Head of Securitisation/Manager -
Securitisation
Facsimile: (00) 0000 0000; and
(B) if to the Issuer:
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Payment Funding Facility
Address: Xxxxx 0
0 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XXX, 0000
Attention: Head of Securitisation/Manager -
Securitisation
Facsimile: (00) 0000 0000;
(C) if to the SF Manager:
Address: Xxxxx 00,
000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx 0000
Attention: Manager - Capital Markets
Facsimile: (00) 0000 0000; and
(D) if to the OF Manager:
Address: Xxxxx 00,
000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx 0000
Attention: Funding Manager
Facsimile: (00) 0000 0000;
or as specified to the sender by any party by notice;
(2) where the sender is a company, must be signed by an
Officer or under the common seal of the sender;
(3) is regarded as being given by the sender and received
by the addressee:
(A) if by delivery in person, when delivered to the
addressee;
(B) if by post, on delivery to the addressee; or
(C) if by facsimile transmission, whether or not
legibly received, when transmitted to the
addressee,
but if the delivery or receipt is on a day which is
not a Banking Day or is after 4.00 pm (addressee's
time) it is regarded as received at 9.00 am on the
following Banking Day;
(4) can be relied upon by the addressee and the addressee
is not liable to any other person for any consequences
of that reliance if the addressee believes it to be
genuine, correct and authorised by the sender; and
(5) if to the Note Holder must be copied to the OF Manager
and if to the Issuer must be copied to the SF Manager.
(b) A facsimile transmission is regarded as legible unless the
addressee telephones the sender within 2 hours after the
transmission is received or regarded as received under
clause 15.4(a)(3) and informs the sender that it is not
legible.
(c) In this clause 15.4, a reference to an addressee includes a
reference to an addressee's Officers, agents or employees.
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Payment Funding Facility
15.5 GOVERNING LAW AND JURISDICTION
(a) This agreement is governed by the laws of New South Wales.
(b) The Issuer and the SF Manager irrevocably submit to the
non-exclusive jurisdiction of the courts of New South
Wales.
15.6 PROHIBITION AND ENFORCEABILITY
(a) Any provision of, or the application of any provision of,
any Material Document or any Power which is prohibited in
any jurisdiction is, in that jurisdiction, ineffective only
to the extent of that prohibition.
(b) Any provision of, or the application of any provision of,
any Material Document which is void, illegal or
unenforceable in any jurisdiction does not affect the
validity, legality or enforceability of that provision in
any other jurisdiction or of the remaining provisions in
that or any other jurisdiction.
15.7 WAIVERS
(a) Waiver of any right arising from a breach of this agreement
or of any Power arising upon default under this agreement
must be in writing and signed by the party granting the
waiver.
(b) A failure or delay in exercise, or partial exercise, of:
(1) a right arising from a breach of this agreement; or
(2) a Power created or arising upon default under this
agreement,
does not result in a waiver of that right or Power.
(c) A party is not entitled to rely on a delay in the exercise
or non-exercise of a right or Power arising from a breach
of this agreement or on a default under this agreement as
constituting a waiver of that right or Power.
(d) A party may not rely on any conduct of another party as a
defence to exercise of a right or Power by that other
party.
(e) This clause may not itself be waived except by writing.
15.8 VARIATION
A variation of any term of this agreement must be in writing and
signed by the parties. No variation may be made if it will cause
the current rating of any bonds issued by the Issuer to be
downgraded or withdrawn by any Designated Rating Agency.
15.9 CUMULATIVE RIGHTS
The Powers are cumulative and do not exclude any other right,
power, authority, discretion or remedy of the Note Holder or OF
Manager.
15.10 ATTORNEYS
Each of the Attorneys executing this agreement states that the
Attorney has no notice of the revocation of the power of
attorney appointing that Attorney.
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Payment Funding Facility
15.11 BINDING OBLIGATIONS
Each party to this agreement acknowledges that the obligations
expressed in this agreement are binding upon it.
15.12 WINDING UP OF SECURITISATION FUND
Prior to the Termination Date, neither the Note Holder nor the
OF Manager may seek to terminate or wind up the Securitisation
Fund as a consequence of any breach of this agreement or any
Note by the Issuer on the SF Manager.
15.13 TERMINATION
This agreement can only be terminated on or after the
Termination Date.
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Payment Funding Facility
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SCHEDULE 1 - FUNDING NOTICE (CLAUSE 4.2)
TO: PERPETUAL TRUSTEES AUSTRALIA LIMITED
in its capacity as trustee of the Origination Fund
(NOTE HOLDER)
AND: ME PORTFOLIO MANAGEMENT LIMITED
(OF MANAGER)
Attention: Head of Securitisation/Manager - Securitisation
--------------------------------------------------------------------------------
We refer to the agreement dated [INSERT DATE] (AGREEMENT). Pursuant to clause 4
of the Agreement:
(a) we give you notice that we wish to request the Issuer to issue to the Note
Holder a Note pursuant to the Agreement on ............... 2003. (FUNDING
DATE);
(b) the aggregate principal amount of the Note is: $........;
(c) we request that the proceeds be remitted to account number ........... at
...................; /[INSERT ALTERNATIVE INSTRUCTIONS]
(d) The Issuer represents and warrants that:
(1) [(except as disclosed in paragraph (d)(2))] each representation and
warranty given by it in the Agreement is to the best of its
knowledge, true, correct and not misleading as though it had been
made at the date of this Funding Notice and the Funding Date
specified above in respect of the facts and circumstances then
subsisting;[ AND]
(2) details of the exceptions to paragraph (d)(1) are as follows:.......
..........., and the Issuer [has taken/proposes] the
following remedial action ......................];
(e) The SF Manager represents and warrants that:
(1) [(except as disclosed in paragraph (e)(2))] each representation and
warranty given by it in the Agreement is to the best of its
knowledge, true, correct and not misleading as though it had been
made at the date of this Funding Notice and the Funding Date
specified above in respect of the facts and circumstances then
subsisting;[ AND]
(2) details of the exceptions to paragraph (e)(1) are as follows:....
.............., and the SF Manager [has taken/proposes] the
following remedial action ......................];
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Payment Funding Facility
DATED:
SIGNED for and on behalf of
ME PORTFOLIO MANAGEMENT LIMITED
------------------------------------------------
Officer's signature
------------------------------------------------
Name (please print)
SIGNED for and on behalf of
PERPETUAL TRUSTEES AUSTRALIA LIMITED
------------------------------------------------
Officer's signature
------------------------------------------------
Name (please print)
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Payment Funding Facility
--------------------------------------------------------------------------------
SCHEDULE 2 - CONDITIONS
Payment Funding Facility Agreement - SMHL Global Fund No. 5
PERPETUAL TRUSTEES AUSTRALIA LIMITED
ABN 86 000 000 000
IN ITS CAPACITY AS TRUSTEE OF THE SMHL GLOBAL FUND NO. 5
of Xxxxx 0, 00 Xxxxxx Xxxxxx, Xxxxxx, XXX, 0000
("ISSUER")
whose office for the purposes of payment is at Xxxxx 0, 0 Xxxxxxxxxxx Xxxxxx,
Xxxxxx, XXX, 0000 or such other address as the Issuer may notify to the Note
Holder from time to time.
1 NOTE
(a) The terms and conditions of the issue of this Note and repayment are
constituted by this Note and the Payment Funding Facility Agreement for
Issue and Repayment of Notes dated [INSERT DATE] November 2003 between
the Issuer, the Note Holder, ME Portfolio Management Limited (ABN 79
005 964 134) of Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx, in
its capacity as manager of the XXXX Xxxxxx Xxxx Xx. 0 (XX XXXXXXX) and
ME Portfolio Management Limited (ABN 79 005 964 134) of Xxxxx 00, 000
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx, in its capacity as manager of the
Superannuation Members' Home Loans Origination Fund No. 3 (OF MANAGER)
(AGREEMENT). Terms defined in the Agreement have the same meaning when
used in these Conditions.
(b) Subject to clause 3, the Issuer promises to repay the principal amount
in accordance with the Agreement.
(c) This Note may only be assigned or transferred with the prior written
consent of the Issuer and subject to and in accordance with the
Agreement.
2 DERIVATION OF PAYMENT
The parties acknowledge that the payments to be made by the Issuer
under this Note are derived by it from the receipts from a "mortgage"
or "pool of mortgages", as those terms are defined in section 3 of the
Duties Xxx 0000 (Vic).
3 EXTENT OF LIABILITY OF ISSUER
(a) The Issuer issues this Note only in its capacity as trustee of the
Securitisation Fund and no other capacity. A liability of the Issuer
arising under or in connection with this Note or the Agreement is
limited to and can be enforced against the Issuer only to the extent to
which it can be satisfied out of property of the Securitisation Fund
out of which the Issuer is actually indemnified for the liability. This
limitation of the Issuer's liability applies despite any other
provision of this Note or the Agreement and extends to all liabilities
and obligations of the Issuer in any way connected with any
representation, warranty, conduct, omission, agreement or transaction
related to this Note or the Agreement.
(b) The parties other than the Issuer may not xxx the Issuer in any
capacity other than as trustee of the Securitisation Fund or seek the
appointment of a receiver (except in relation to property of the
Securitisation Fund), a liquidator, an administrator or any similar
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Payment Funding Facility
person to the Issuer or prove in any liquidation, administration or
arrangement of or affecting the Issuer (except in relation to property
of the Securitisation Fund).
(c) The provisions of this clause 3 shall not apply to any obligation or
liability of the Issuer to the extent that it is not satisfied because
under the Master Trust Deed establishing the Securitisation Fund or by
operation of law there is a reduction in the extent of the Issuer's
indemnification out of the assets of the Securitisation Fund Issuer, as
a result of the Issuer's fraud, negligence or wilful default.
(d) It is acknowledged that the SF Manager is responsible under the Master
Trust Deed establishing the Securitisation Fund for performing a
variety of obligations relating to the Securitisation Fund, including
under this Note and the Agreement. No act or omission of the Issuer
(including any related failure to satisfy its obligations or breach of
representation or warranty under this Note or the Agreement) will be
considered fraud, negligence or wilful default of the Issuer for the
purposes of paragraph (c) of this clause 3 to the extent to which the
act or omission was caused or contributed to by any failure by the SF
Manager or any other person to fulfil its obligations relating to the
Securitisation Fund or by any other act or omission of the SF Manager
or any other person.
(e) No attorney, agent, receiver or receiver and manager appointed in
accordance with this Note or the Agreement has authority to act on
behalf of the Issuer in a way which exposes the Issuer to any personal
liability and no act or omission of any such person will be considered
fraud, negligence or wilful default of the Issuer for the purposes of
paragraph (c) of this clause 3.
(f) The Issuer is not obliged to do or refrain from doing anything under
this Note or the Agreement (including incur any liability) unless the
Issuer's liability is limited in the same manner as set out in
paragraphs (a) to (c) of this clause 3.
4 EXTENT OF LIABILITY OF NOTE HOLDER
(a) The Note Holder enters into this Note only in its capacity as trustee
of the Origination Fund and no other capacity. A liability arising
under or in connection with this Note or the Agreement is limited to
and can be enforced against the Note Holder only to the extent to which
it can be satisfied out of property of the Origination Fund out of
which the Note Holder is actually indemnified for the liability. This
limitation of the Note Holder's liability applies despite any other
provision of this Note or the Agreement and extends to all liabilities
and obligations of the Note Holder in any way connected with any
representation, warranty, conduct, omission, agreement or transaction
related to this Note or the Agreement.
(b) The parties other than the Note Holder may not xxx the Note Holder in
any capacity other than as trustee of the Origination Fund or seek the
appointment of a receiver (except in relation to property of the
Origination Fund), a liquidator, an administrator or any similar person
to the Note Holder or prove in any liquidation, administration or
arrangement of or affecting the Note Holder (except in relation to
property of the Origination Fund).
(c) The provisions of this clause 4 shall not apply to any obligation or
liability of the Note Holder to the extent that it is not satisfied
because under the trust deed establishing the Origination Fund or by
operation of law there is a reduction in the extent of the Note
Holder's indemnification out of the assets of the Origination Fund, as
a result of the Note Holder's fraud, negligence or wilful default.
(d) It is acknowledged that the OF Manager is responsible under the trust
deed establishing the Origination Fund for performing a variety of
obligations relating to the Origination Fund, including under this Note
and the Agreement. No act or omission of the Note
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Payment Funding Facility
Holder (including any related failure to satisfy its obligations or
breach of representation or warranty under this Note or the Agreement)
will be considered fraud, negligence or wilful default of the Note
Holder for the purposes of paragraph (c) of this clause 4 to the extent
to which the act or omission was caused or contributed to by any
failure by the OF Manager or any other person to fulfil its obligations
relating to the Origination Fund or by any other act or omission of the
OF Manager or any other person.
(e) No attorney, agent, receiver or receiver and manager appointed in
accordance with this Note or the Agreement has authority to act on
behalf of the Note Holder in a way which exposes the Note Holder to any
personal liability and no act or omission of any such person will be
considered fraud, negligence or wilful default of the Note Holder for
the purposes of paragraph (c) of this clause 4.
(f) The Note Holder is not obliged to refrain from doing anything under
this Note or the Agreement (including incur any liability) unless the
Note Holder's liability is limited in the same manner as set out in
paragraphs (a) to (c) of this clause 4.
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Payment Funding Facility
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EXECUTED AS AN AGREEMENT:
SIGNED for
PERPETUAL TRUSTEE AUSTRALIA LIMITED
in its capacity as trustee of SMHL Global Fund No. 5
by its attorney under a Power of Attorney dated
and who declares that he has not received any notice of the
revocation of such Power of Attorney in the presence of:
----------------------------------- -------------------------------------
Witness Attorney
----------------------------------- -------------------------------------
Name (please print) Name (please print)
SIGNED for
PERPETUAL TRUSTEES AUSTRALIA LIMITED
in its capacity as trustee of Superannuation Members'
Home Loans Origination Fund No. 3
by its attorney under a Power of Attorney dated
and who declares that he has not received any notice of the
revocation of such Power of Attorney in the presence of:
----------------------------------- -------------------------------------
Witness Attorney
----------------------------------- -------------------------------------
Name (please print) Name (please print)
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Payment Funding Facility
SIGNED for
ME PORTFOLIO MANAGEMENT LIMITED
in its capacity as manager of SMHL Global Fund No. 5
by its attorney under a Power of Attorney dated
and who declares that he has not received any notice of the
revocation of such Power of Attorney in the presence of:
----------------------------------- -------------------------------------
Witness Attorney
----------------------------------- -------------------------------------
Name (please print) Name (please print)
SIGNED for
ME PORTFOLIO MANAGEMENT LIMITED
in its capacity as manager of Superannuation Members'
Home Loans Origination Fund No. 3
by its attorney under a Power of Attorney dated
and who declares that he has not received any notice of the
revocation of such Power of Attorney in the presence of:
----------------------------------- -------------------------------------
Witness Attorney
----------------------------------- -------------------------------------
Name (please print) Name (please print)
--------------------------------------------------------------------------------
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