Payment Funding Facility Agreement for the Issue and Repayment of Notes - SMHL Global Fund
Β
Β
Β
Β
ME
Portfolio Management Limited
Β
Facility
Agreement for
the
Issue
and
Repayment
of Notes -
SMHL
Global Fund
2007-1
Β
Β
Β
Β
Clause
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Page
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1
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Definitions
and interpretation
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1
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1.1
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Definitions
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1
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1.2
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Interpretation
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6
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1.3
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Banking
Day
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8
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1.4
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Transaction
Document
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8
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2
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The
Notes
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8
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2.1
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Application
for and Issue of Notes
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8
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2.2
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Acknowledgment
of Indebtedness
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8
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2.3
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Obligations
under Notes
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9
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2.4
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Ownership
of Notes
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9
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2.5
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Register
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9
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Β
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3
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Purpose
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9
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Β
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4
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Funding
procedures
|
10
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4.1
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Delivery
of Funding Notice
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10
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4.2
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Requirements
for a Funding Notice
|
10
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4.3
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Copy
of the Funding Notice to be provided to the Issuer
|
10
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4.4
|
Irrevocability
of Funding Notice
|
10
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Β | Β | Β | |
5
|
Loan
Facility
|
11
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5.1
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Provision
of Funding Portions
|
11
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5.2
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Repayment
of Outstanding Moneys
|
11
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5.3
|
Interest
|
11
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5.4
|
Order
of Repayment
|
12
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5.5
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Acknowledgments
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12
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Β
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6
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Payments
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13
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6.1
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Manner
of payments
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13
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6.2
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Payments
on a Banking Day
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13
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6.3
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Appropriation
of payments
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13
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6.4
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Payments
in gross
|
14
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6.5
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Taxation
deduction procedures
|
14
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6.6
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Amounts
payable on demand
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14
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Β | Β |
Β
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|
7
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Representations
and warranties
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14
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7.1
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By
the Issuer
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14
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7.2
|
By
the SF Manager
|
15
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page
i
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
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7.3
|
Survival
and repetition of representations and warranties
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16
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7.4
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Reliance
by the Note Holder and OF Manager
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16
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Β
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|
8
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Undertakings
|
16
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8.1
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Term
of undertakings
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16
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8.2
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Compliance
with Covenants
|
16
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8.3
|
Notify
Events of Default
|
17
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8.4
|
Know
your customer
|
17
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8.5
|
Compliance
with Regulation AB
|
17
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8.6
|
Direction
of claims by the SF Manager
|
22
|
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8.7
|
Direction
of defence of claims
|
23
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Β
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|
9
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Events
of Default
|
23
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9.1
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Operation
of clause 9
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23
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9.2
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Effect
of Event of Default
|
24
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9.3
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Issuer
to continue to perform
|
24
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9.4
|
Enforcement
|
24
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Β
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|
10
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Trustee
Limitation of Liability Protection
|
24
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10.1
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Limitation
of Liability - Issuer
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24
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10.2
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Limitation
of Liability - Note Holder
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25
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10.3
|
Wilful
Default of the Issuer and the Note Holder
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26
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Β | Β |
Β
|
|
11
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Indemnities
|
27
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11.1
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General
indemnity
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27
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11.2
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Continuing
indemnities and evidence of loss
|
28
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11.3
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Funds
available for indemnity
|
28
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11.4
|
Negligence,
wilful default or breach of law
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28
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11.5
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Notification
from Note Holder or OF Manager
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28
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Β | Β |
Β
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|
12
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Tax,
costs and expenses
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29
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12.1
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Tax
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29
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12.2
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Costs
and expenses
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29
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12.3
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Goods
and services tax
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30
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Β
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|
13
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Interest
on overdue amounts
|
30
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13.1
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Payment
of interest
|
30
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13.2
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Accrual
of interest
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30
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13.3
|
Rate
of interest
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31
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Β
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|
14
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Assignment
|
31
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14.1
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Assignment
by Transaction Party
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31
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14.2
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Assignment
by Note Holder and OF Manager
|
31
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14.3
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Assist
transfer or assignment
|
31
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14.4
|
Participation
permitted
|
31
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page
ii
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
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14.5
|
Lending
Office
|
31
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14.6
|
Disclosure
|
31
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14.7
|
No
increase in costs
|
32
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Β
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|
15
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General
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32
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15.1
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Confidential
information
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32
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15.2
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Performance
by Note Holder of obligations
|
32
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15.3
|
Transaction
Party to bear cost
|
32
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15.4
|
Notices
|
32
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15.5
|
Governing
law and jurisdiction
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34
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15.6
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Prohibition
and enforceability
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34
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15.7
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Waivers
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34
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15.8
|
Variation
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34
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15.9
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Cumulative
rights
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35
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15.10
|
Attorneys
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35
|
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15.11
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Binding
Obligations
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35
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15.12
|
Winding
up of Securitisation Fund
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35
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15.13
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Termination
|
35
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15.14
|
Counterparts
|
35
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Β | Β | Β | Β |
Schedule
1 - Funding Notice (clause 4.2)
|
36
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||
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Schedule
2 - Conditions
|
38
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||
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Schedule
3 - Report on assessment of compliance with Regulation AB servicing
criteria
|
42
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||
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Schedule
4 - Servicing Criteria to be addressed in assessment of
compliance
|
43
|
page
iii
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
Β
Β
Parties
Β
Β
Perpetual
Limited ABN
86
000 000 000 of Xxxxx 00, 000 Xxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx 0000 in
its
capacity as trustee of the Origination Fund (as hereinafter defined)
(NoteΒ Holder)
Β
ME
Portfolio Management LimitedΒ ABN
79
005
964 134 of
Xxxxx
00,
000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 0000 in its capacity as manager of
the
Securitisation Fund (SF
Manager)
Β
ME
Portfolio Management Limited
ABN 79
005 964 134 of Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 0000 in
its
capacity as manager of the Origination Fund (OF
Manager)
Β
Β
Β
A. |
The
Issuer is the trustee, and the SF Manager is the manager, of the
Securitisation Fund.
|
Β
B. |
The
Note Holder is the trustee, and the OF Manager is the manager,
of the
Origination Fund.
|
Β
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.
|
Β
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.
|
Β
The
parties agree
Β
in
consideration of, among other things, the mutual promises contained in this
agreement:
Β
Β
1 |
Definitions
and interpretation
|
Β
1.1 |
DefinitionsΒ
|
Β
In
this agreement, unless the context otherwise requires:
Β
Attorney
means an attorney appointed under a Material Document;
Β
page
1
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
Authorisation
includes:
Β
(a) |
any
consent, registration, filing, agreement, notarisation, certificate,
licence, approval, permit, authority or exemption from, by or with
a
Governmental Agency; and
|
Β
(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;
|
Β
Authorised
Investments
has the meaning given to it in the Master Trust Deed;
Β
Bank
has the meaning given to it in the Master Trust Deed;
Β
Banking
Day
means any day on which Banks are open for business in London, New York,
Melbourne and Sydney (excluding a Saturday, Sunday or public holiday) and
which
is a TARGET Settlement Day;
Β
Bond
Issue Date has
the meaning given to it in the Master Trust Deed;
Β
Bond
Issue Direction
has the meaning given to it in the Master Trust Deed;
Β
Charge
means the charge created under the Security Trust Deed;
Β
Class
A Note has
the meaning given to it in the Supplementary Bond Terms Notice;
Β
Class
B Note has
the meaning given to it in the Supplementary Bond Terms Notice;
Β
Collections
has the meaning given to it in the Supplementary Bond Terms Notice;
Β
Commission
has
the meaning given to it in the Supplementary Bond Terms Notice;
Β
Conditions
means the terms and conditions as set out in schedule 2;
Β
Designated
Rating Agency
has the meaning given to it in the Master Trust Deed;
Β
Dollars,
A$
and $
means the lawful currency of the Commonwealth of Australia;
Β
Encumbrance
means an interest or power:
Β
(a) |
reserved
in or over an interest in any asset including, but not limited
to, any
retention of title; or
|
Β
(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,
|
Β
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;
Β
Entity
has the same meaning as in Chapter 2E of the Corporations Act;
Β
Event
of Default
means an Event of Default as defined in the Security Trust Deed;
Β
Exchange
Act has
the meaning given to it in the Supplementary Bond Terms Notice;
Β
Excluded
Tax
means any Tax imposed by any jurisdiction on the net income of the Note
Holder;
Β
page
2
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
Facility
means the payment funding facility made available by the Note Holder to the
Issuer under this agreement (by purchase of Notes);
Β
Fitch
Ratings
means Fitch Australia Pty Ltd;
Β
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;
Β
Funding
Notice
means a notice given, or to be given, under clauses 4.1
and 4.2;
Β
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);
Β
Governmental
Agency
means any government or any governmental, semi-governmental, administrative,
fiscal or judicial body, department, commission, authority, tribunal, agency
or
entity;
Β
GST
has
the same meaning as in the A New Tax System (Goods and Services Tax) Xxx
0000;
Β
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;
Β
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;
Β
Master
Trust Deed
means the Master Trust Deed dated 4 July 1994 made between Perpetual Limited
and
ME Portfolio Management Limited, and providing for the establishment of a
series
of separate trusts known collectively as the Superannuation Membersβ Home Loans
Trusts, as amended and restated from time to time;
Β
Material
Documents
means:
Β
(a) |
this
agreement (including each Note);
and
|
Β
(b) |
the
Security Trust Deed; and
|
Β
(c) |
the
Supplementary Bond Terms Notice.
|
Β
Xxxxx'x
has the meaning given to it in the Master Trust Deed;
Β
Mortgage
has
the meaning given to it in the Master Trust Deed;
Β
Note
means a note issued under clauses 2
and 4;
Β
Note
Holder
means Perpetual Limited (in its capacity as trustee of the Origination Fund)
or
any person entitled to be registered as a Note Holder in accordance with
this
agreement;
Β
Officer
means:
Β
(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
βheadβ or a person performing the functions of any of them; and
|
Β
(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;
|
Β
page
3
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
Origination
Fund
means Superannuation Membersβ Home Loans Origination Fund No. 3 established
pursuant to the Master Trust Deed;
Β
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:
Β
(a) |
are
present or future;
|
Β
(b) |
are
actual, prospective, contingent or
otherwise;
|
Β
(c) |
are
at any time ascertained or
unascertained;
|
Β
(d) |
are
owed or incurred by or on account of the Issuer alone, or severally
or
jointly with any other person;
|
Β
(e) |
are
owed to or incurred for the account of the Note Holder alone, or
severally
or jointly with any other person;
|
Β
(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
|
Β
comprise
any combination of the above, after:
Β
(g) |
deducting
the aggregate amount of any payments made under clause 3(b);
and
|
Β
(h) |
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;
|
Β
Outstanding
Principal Balance
in respect of a Mortgage has the same meaning as in the Supplementary Bond
Terms
Notice;
Β
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;
Β
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 Master 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;
Β
Payment
Amount Shortfall
means as the case requires:
Β
(a) |
a
Recovery Shortfall; and
|
Β
(b) |
a
Threshold Rate Shortfall;
|
Β
Payment
Date
has the meaning given to it in the Supplementary Bond Terms Notice;
Β
Payment
Period
means the period from and including the last relevant Payment Date to but
excluding the next relevant 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;
Β
page
4
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
Permitted
Encumbrance
means:
Β
(a) |
every
lien created by operation of law securing an obligation that is
not yet
due;
|
Β
(b) |
every
lien for the unpaid balance of purchase moneys under an instalment
contract entered into in the ordinary course of
business;
|
Β
(c) |
every
lien for the unpaid balance of moneys owing for repairs;
and
|
Β
(d) |
an
Encumbrance granted under a Transaction
Document,
|
Β
which
affects or relates to any of the assets of the Securitisation Fund;
Β
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;
Β
Principal
Outstanding
means at any time the aggregate principal amount of all outstanding Funding
Portions at that time after:
Β
(a) |
deducting
the aggregate amount of any payments made under clause 3(b);
and
|
Β
(b) |
adding
the aggregate of any amounts recovered by or otherwise paid to
the Issuer
in respect of a Payment Amount
Shortfall;
|
Β
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;
Β
Redraw
Funding Facility
has the meaning given to it in the Security Trust Deed;
Β
Register
means the register of Note Holders maintained by the Issuer;
Β
Regulation
AB has
the meaning given to it in the Supplementary Bond Terms Notice;
Β
S&P
has the meaning given to it in the Master Trust Deed;
Β
Same
Day Funds
means bank cheque or other immediately available funds;
Β
Securitisation
Fund
means the Securitisation Fund constituted under the Master Trust Deed known
as
SMHL Global Fund 2007-1;
Β
Security
Trust Deed
means the security trust deed (as amended from time to time) in respect of
the
Securitisation Fund dated 2 May 2007 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);
Β
Set
Date
means in relation to the initial Payment Period, the Funding Date, and in
relation to each subsequent Payment Period, the relevant Payment Date at
the
commencement of that Payment Period;
Β
Supplementary
Bond Terms Notice
means the Supplementary Bond TermsΒ Notice
dated on or about the date of this agreement in respect of the Securitisation
Fund and providing the terms of issue for Class A Notes and Class B
Notes;
Β
page
5
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
TARGET
Settlement Day
means any day on which the Trans-European Automated Real-time Gross Settlement
Express Transfer system is open;
Β
Tax
means:
Β
(a) |
any
tax (including GST), levy, charge, impost, duty, fee, deduction,
compulsory loan or withholding; or
|
Β
(b) |
any
income, stamp or transaction duty, tax or
charge,
|
Β
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;
Β
Termination
Date
means, the first to occur of:
Β
(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
|
Β
(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 βAAAβ, βAaaβ and βAAAβ rating of notes in the
Securitisation Fund known as the βClass A Notesβ by S&P, Xxxxxβx and
Xxxxx Ratings respectively;
|
Β
Threshold
Rate Shortfall
means any shortfall arising under any determination under clause 11(a) of
the
Supplementary Bond Terms Notice;
Β
Total
Outstanding Principal Balance
has the meaning given to it under the Supplementary Bond Terms
Notice;
Β
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);
Β
Transaction
Party
means:
Β
(a) |
the
Issuer; or
|
Β
(b) |
the
SF Manager.
|
Β
1.2 |
InterpretationΒ
|
Β
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:
Β
(a) |
words
importing the singular include the plural and vice
versa;
|
Β
(b) |
words
importing a gender include any
gender;
|
Β
(c) |
other
parts of speech and grammatical forms of a word or phrase defined
in this
agreement have a corresponding
meaning;
|
Β
(d) |
an
expression importing a natural person includes any company, partnership,
joint venture, association, corporation or other body corporate
and any
Governmental Agency;
|
Β
page
6
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
(e) |
a
reference to any thing (including, but not limited to, any right)
includes
a part of that thing;
|
Β
(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;
|
Β
(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;
|
Β
(h) |
a
reference to a document includes all amendments or supplements
to, or
replacements or novations of, that
document;
|
Β
(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;
|
Β
(j) |
a
reference to a party to any document includes that party's successors
and
permitted assigns;
|
Β
(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;
|
Β
(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;
|
Β
(m) |
a
reference to a document includes any agreement in writing, or any
certificate, notice, instrument or other document of any
kind;
|
Β
(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;
|
Β
(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;
|
Β
(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:
|
Β
(1) |
which
ceases to exist; or
|
Β
(2) |
whose
powers or functions are transferred to another
body,
|
Β
is
a reference to the body which replaces it or which substantially succeeds
to its
powers or functions; and
Β
(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
awareness or actual notice of that thing, or grounds or reason
to believe
that thing (and similar references will be interpreted in this
way). In
addition, notice, knowledge or awareness of an Event of Default
means
notice, knowledge or awareness of the occurrence of the events
or
circumstances constituting an Event of Default and that those events
or
circumstances constitute an Event of
Default.
|
Β
page
7
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
1.3 |
Banking
Day
|
Β
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.
Β
1.4 |
Transaction
Document
|
Β
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.
Β
2 |
The
Notes
|
Β
2.1 |
Application
for and Issue of Notes
|
Β
(a) |
The
SF Manager may request that the Issuer issues a Note to the Note
Holder
by:
|
Β
(1) |
requesting
a Note be issued from βSMHL Global Fund
2007-1β;
|
Β
(2) |
specifying
the principal amount of the Note
required;
|
Β
(3) |
specifying
the proposed date of issue of the Note;
and
|
Β
(4) |
providing
to the Note Holder and the OF Manager a Funding Notice (and a copy
to the
Issuer) pursuant to clause 4.
|
Β
(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.
|
Β
(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.
|
Β
2.2 |
Acknowledgment
of Indebtedness
|
Β
The
Issuer acknowledges its indebtedness to the Note Holder in respect of each
Note
issued under this agreement.
Β
page
8
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
2.3 |
Obligations
under Notes
|
Β
(a) |
The
obligations of the Issuer under the Notes are constituted by, and
specified in, this agreement and in the
Conditions.
|
Β
(b) |
Each
Note is a separate debt of the
Issuer.
|
Β
(c) |
The
entitlement of any person to a Note is determined by registration
as a
Note Holder of that Note.
|
Β
(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.
|
Β
2.4 |
Ownership
of Notes
|
Β
(a) |
A
Note may be transferred by the Note Holder to any person in accordance
with this agreement.
|
Β
(b) |
The
person whose name is registered as the Note Holder of a Note in
the
Register will be, and will be treated by the Issuer as, the absolute
owner
of the Note.
|
Β
2.5 |
Register
|
Β
The
Issuer must:
Β
(a) |
establish
and maintain the Register;
|
Β
(b) |
enter
in the Register in respect of each
Note:
|
Β
(1) |
the
principal amount and principal outstanding in respect of each
Note;
|
Β
(2) |
its
date of issue and date of redemption and cancellation;
and
|
Β
(3) |
the
date on which any person becomes, or ceases to be, a Note
Holder.
|
Β
3 |
Purpose
|
Β
(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:
|
Β
(1) |
which
are rated βAAAβ or βA-1+β by S&P, βPrime-1β or βAaaβ by Xxxxxβx and
βAAAβ or βF1+β by Fitch Ratings, or such other rating as any Designated
Rating Agency may approve from time to
time;
|
Β
(2) |
which
mature (except in the case of call deposits with a Bank) not later
than
the Banking Day before the relevant Payment Date immediately after
the day
on which they are made; and
|
Β
(3) |
otherwise
in accordance with the Master Trust
Deed.
|
Β
(b) |
The
Issuer must, and the SF Manager must cause the Issuer to, apply
funds
invested under clause 3(a):
|
Β
page
9
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
(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
|
Β
(2) |
otherwise
as required under clause 5
or clause 11.
|
Β
4 |
Funding
procedures
|
Β
4.1 |
Delivery
of Funding Notice
|
Β
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.
Β
4.2 |
Requirements
for a Funding Notice
|
Β
A
Funding Notice:
Β
(a) |
must
be in writing in the form of, and specifying the matters set out
in,
schedule 1;
|
Β
(b) |
must
be received by the Note Holder and the OF Manager at least 2Β Banking
Days before the proposed Funding Date (or such shorter period as
the OF
Manager may agree in writing);
|
Β
(c) |
must
be signed by an Officer of the SF Manager and an Officer of the
Issuer;
|
Β
(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.
|
Β
4.3 |
Copy
of the Funding Notice to be provided to the
Issuer
|
Β
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.
Β
4.4 |
Irrevocability
of Funding Notice
|
Β
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.
Β
page
10
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
Β
5 |
Loan
Facility
|
Β
5.1 |
Provision
of Funding Portions
|
Β
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.
Β
5.2 |
Repayment
of Outstanding Moneys
|
Β
(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 SF
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.
|
Β
(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.
|
Β
(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.
|
Β
(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.
|
Β
5.3 |
Interest
|
Β
(a) |
On
each relevant Payment Date, the Issuer must, and the SF Manager
must cause
the Issuer to, pay to the Note Holder interest in relation to the
relevant
Payment Period being an amount equal to the Interest Amount. The
Issuer is
not obliged to pay interest under this clause 5.3(a)
other than out of the Interest
Amount.
|
Β
(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).
|
Β
(c) |
If
on any relevant Payment Date, the Interest Amount in respect of
the
relevant Payment Period is not paid on the whole amount of the
Principal
Outstanding:
|
Β
page
11
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
(1) |
the
Interest Amount shall accrue interest at the Overdue Rate for the
next
Payment Period;
|
Β
(2) |
the
Interest Amount and interest accrued under paragraph (1)
shall become payable on the next relevant Payment Date;
and
|
Β
(3) |
to
the extent to which any unpaid Interest Amount (including any interest
accrued under paragraph (1))
remains unpaid after that next relevant Payment Date it will again
be
subject to paragraphs (1)
and (2)
for each subsequent Payment Period and relevant Payment Date until
it has
been paid.
|
Β
(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.
|
Β
Β
5.4 |
Order
of Repayment
|
Β
(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.
|
Β
(b) |
The
Note Holder must, and the OF Manager must cause the Note Holder
to, apply
repayments in accordance with clause 6.3(a).
|
Β
(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.
|
Β
5.5 |
Acknowledgments
|
Β
(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.
|
Β
(b) |
Each
of the parties acknowledges that:
|
Β
(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;
|
Β
(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;
|
Β
(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 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
|
Β
page
12
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
(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 11(c)(1) and (2) of the
Supplementary Bond Terms Notice.
|
Β
6 |
Payments
|
Β
6.1 |
Manner
of payments
|
Β
All
payments to the Note Holder under the Material Documents must be
made:
Β
(a) |
in
Same Day Funds;
|
Β
(b) |
in
Dollars; and
|
Β
(c) |
not
later than 11:00 am (Melbourne time) on the due
date,
|
Β
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.
Β
6.2 |
Payments
on a Banking
Day
|
Β
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.
Β
6.3 |
Appropriation
of payments
|
Β
(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:
|
Β
(1) |
firstly,
towards reimbursement of all fees, costs, expenses, charges, damages
and
indemnity payments incurred or due and owing by the Transaction
Parties
under the Material Documents;
|
Β
(2) |
secondly,
towards payment of interest due and payable under the Material
Documents;
and
|
Β
(3) |
thirdly,
towards repayment of the Principal
Outstanding.
|
Β
(b) |
Any
appropriation under clause 6.3(a)
overrides any appropriation made by the
Issuer.
|
Β
page
13
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
6.4 |
Payments
in gross
|
Β
All
payments which a Transaction Party is required to make under any Material
Document must be:
Β
(a) |
without
any set-off, counterclaim or condition;
and
|
Β
(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.
|
Β
6.5 |
Taxation
deduction procedures
|
Β
If
a Transaction Party is required to make a deduction or withholding in respect
of
Tax from any payment to be made to the Note Holder under any Material Document,
then:
Β
(a) |
that
Transaction Party has no obligation to indemnify the Note Holder
against
that tax; and
|
Β
(b) |
that
Transaction Party must, and in the case of the Issuer, the SF Manager
must
cause the Issuer to, use its best endeavours to obtain official
receipts
or other documentation from the relevant Governmental Agency and
within 2
Banking Days after receipt the Issuer must, and the SF Manager
must cause
the Issuer to, deliver them to the Note
Holder.
|
Β
6.6 |
Amounts
payable on demand
|
Β
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.
Β
7 |
Representations
and warranties
|
Β
7.1 |
By
the Issuer
|
Β
The
Issuer hereby represents and warrants to the OF Manager and Note Holder
that:
Β
(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;
|
Β
(b) |
(Constitution):
the execution delivery and performance of this agreement and any
Note does
not and will not violate its
constitution;
|
Β
(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;
|
Β
(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:
|
Β
page
14
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
(1) |
as
such enforceability may be limited by any applicable bankruptcy,
insolvency, re-organisation, moratorium or trust or other similar
laws
affecting creditorsβ rights generally;
and
|
Β
(2) |
that
this representation and warranty does not apply to the filing of
ASIC form
309 or ASIC form 350 in relation to the creation or stamping of
the
Charge;
|
Β
(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 laws
or other
similar laws affecting creditors' rights
generally;
|
Β
(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;
|
Β
(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;
|
Β
(h) |
(Securitisation
Fund Validly Created):
the Securitisation Fund has been validly created and is in existence
at
the date of this agreement;
|
Β
(i) |
(Sole
Trustee):
it has been validly appointed as trustee of the Securitisation
Fund and is
presently the sole trustee of the Securitisation
Fund;
|
Β
(j) |
(Master
Trust Deed):
the Securitisation Fund is constituted pursuant to the Master Trust
Deed;
and
|
Β
(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.
|
Β
7.2 |
By
the SF Manager
|
Β
The
SF Manager hereby represents and warrants to the OF Manager and Note Holder
that:
Β
(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;
|
Β
(b) |
(Constitution):
the execution, delivery and performance by it of this agreement
and each
Note does not and will not violate its
constitution;
|
Β
(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;
|
Β
page
15
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
(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;
|
Β
(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;
|
Β
(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
|
Β
(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.
|
Β
7.3 |
Survival
and repetition of representations and
warranties
|
Β
The
representations and warranties in, or given under, this agreement including,
but
not limited to, clauses 7.1
and 7.2:
Β
(a) |
survive
the execution of each Transaction Document;
and
|
Β
(b) |
are
regarded as repeated on each Funding Date with respect to the facts
and
circumstances then subsisting.
|
Β
7.4 |
Reliance
by the Note Holder
and OF Manager
|
Β
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.
Β
8 |
Undertakings
|
Β
8.1 |
Term
of undertakings
|
Β
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.
Β
8.2 |
Compliance
with Covenants
|
Β
The
Issuer must and the SF Manager must ensure that the Issuer does:
Β
page
16
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
(a) |
comply
with all of its covenants and obligations under the Security Trust
Deed
and Supplementary Bond Terms Notice;
and
|
Β
(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.
|
Β
8.3 |
Notify
Events of Default
|
Β
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.
Β
8.4 |
Know
your customer
|
Β
Subject
to any confidentiality, privacy or general trust law obligations owed by
the
Issuer to Bondholders and any applicable confidentiality or privacy laws,
except
to the extent those obligations or laws are overridden by applicable anti-money
laundering or counter-terrorism financing laws, each party hereto (Information
Provider)
agrees to provide any information and documents reasonably required by another
party hereto (Information
Receiver)
for the Information Receiver to comply with any applicable anti-money laundering
or counter-terrorism financing laws including, without limitation, any laws
imposing "know your customer" or other identification checks or procedures
on a
party, but only to the extent that such information is in the possession
of, or
otherwise readily available to, the Information Provider. The Information
Receiver may, to the extent required by law, decline to perform its affected
obligations under the Transaction Documents to which it is a party. Any
Information Receiver receiving information and documents pursuant to this
clause
8.4 agrees to utilize such information and documents solely for the purpose
of
complying with applicable anti-money laundering or counter-terrorism financing
laws.
Β
8.5 |
Compliance
with Regulation AB
|
Β
In
relation to compliance with Regulation AB:
Β
(a) |
the
SF Manager and the Issuer acknowledge and agree that the purpose
of this
clause 8.5
is to facilitate compliance by the Issuer in relation to the
Securitisation Fund with the provisions of Regulation AB and related
rules
and regulations of the Commission to the extent applicable to the
Issuer;
|
Β
(b) |
the
SF Manager shall not exercise its right to request delivery of
information
or other performance under these provisions other than as required
to
comply with the Securities Act, the Exchange Act and the rules
and
regulations of the Commission thereunder, including Regulation
AB, with
respect to the Securitisation Fund. The SF Manager shall not request
the
delivery of information or other performance under this clause
8.5
unless the SF Manager is required under the Exchange Act to file
an annual
report on Form 10-K with respect to the Securitisation Fund. The
SF
Manager and the Issuer acknowledge that interpretations of the
requirements of Regulation AB may change over time, whether due
to
interpretive guidance provided by the Commission or its staff,
consensus
among participants in the asset-backed securities markets, advice
of
counsel, or otherwise, and agrees to comply with requests made
by the SF
Manager in good faith for delivery of information under these provisions
on the basis of evolving interpretations of Regulation AB; provided
that,
to the extent the SF Manager and the Issuer do not agree with respect
to
an interpretation of Regulation AB, the SF Manager and the Issuer
shall
obtain a written opinion of counsel of U.S. national reputation
in the
practice of U.S. federal securities laws reasonably acceptable
to the SF
Manager and the Issuer, addressed to the SF Manager and the Issuer,
stating the opinion of such counsel with respect to the interpretation
of
the relevant provision(s) of Regulation AB; provided, further,
that the
costs and fees of such counsel incurred in the preparation of such
written
opinion shall be divided equally between the SF Manager and the
Issuer. In
relation to the Securitisation Fund, the Issuer shall cooperate
fully with
the SF Manager to deliver to the SF Manager (including any of its
assignees or designees), any and all statements, reports, certifications,
records and any other information within the control of the Issuer
or for
which the Issuer is responsible necessary in the good faith determination
of the SF Manager to permit the SF Manager to comply with the provisions
of Regulation AB, together with such disclosures relating to the
SF
Manager, the Issuer, any Subcontractor of the Issuer, the Loans,
the
servicing of the Loans or any other servicing activities within
the
meaning of Item 1122 of Regulation AB, reasonably believed by the
SF
Manager to be necessary in order to effect such
compliance;
|
Β
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17
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
(c) |
the
SF Manager (including any of its assignees or designees) shall
cooperate
with the Issuer by providing timely notice of requests for information
under these provisions following the SF Manager becoming aware
that it is
required under the Exchange Act to file an annual report on Form
10-K in
any year and by reasonably limiting such requests to information
required,
in the SF Managerβs reasonable judgment, to comply with Regulation
AB;
|
Β
(d) |
the
Issuer acknowledges and agrees that, to the extent the SF Manager
reasonably determines, upon consultation with, and to the extent
agreed
with, the Issuer, that the Issuer is βparticipating in the servicing
functionβ in relation to the Securitisation Fund within the meaning of
Item 1122 of Regulation AB, the Issuer will comply with the applicable
requirements contained in clause 8.5(e)
- (i);
provided that, to the extent the SF Manager and the Issuer do not
agree
whether the Issuer is βparticipating in the servicing functionβ with
respect to one or more Servicing Criteria within the meaning of
Item 1122
in relation to the Securitisation Fund, the SF Manager and the
Issuer
shall obtain a written opinion of counsel of U.S. national reputation
in
the practice of U.S. federal securities laws reasonably acceptable
to the
SF Manager and the Issuer, addressed to the SF Manager and the
Issuer,
stating whether, in the opinion of such counsel, the Issuer is
βparticipating in the servicing functionβ with respect to such Servicing
Criteria within the meaning of Item 1122 in relation to the Securitisation
Fund; provided, further, that the costs and fees of such counsel
incurred
in the preparation of such written opinion shall be divided equally
between the SF Manager and the
Issuer;
|
Β
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18
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
(e) |
on
or before September 1 of each calendar year, commencing in
2007Β the
Issuer shall upon the reasonable request of the
Manager:
|
Β
(1) |
deliver
to the SF Manager a report (in form and substance reasonably satisfactory
to the SF Manager) regarding the Issuerβs assessment of compliance with
the Servicing Criteria during the immediately preceding financial
year
ended June 30, as required under Rules 13a-18 and 15d-18 of the
Exchange
Act and Item 1122 of Regulation AB. Such report shall be addressed
to the
SF Manager and signed by an authorized officer of the Issuer, and
shall
address each of the Servicing Criteria specified on a certification
substantially in the form of Schedule 3 hereto and addressing,
at a
minimum, the criteria identified in Schedule 4 hereto as βApplicable
Servicing Criteriaβ, but only with respect to such of the Servicing
Criteria that the Issuer performs;
|
Β
(2) |
deliver
to the SF Manager a report of a registered public accounting firm
reasonably acceptable to the SF Manager that attests to, and reports
on,
the assessment of compliance made by the Issuer and delivered pursuant
to
the preceding paragraph. Such attestation shall be in accordance
with
Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities
Act
and the Exchange Act;
|
Β
(3) |
cause
each Subcontractor of the Issuer (if any) determined by the Issuer
pursuant to clause 8.5
to be "participating in the servicing function" within the meaning
of Item
1122 of Regulation AB, to deliver to the SF Manager an assessment
of
compliance and accountantsβ attestation as and when provided in clause
8.5(e)(1)
and 8.5(e)(2),
but only with respect to such of the Servicing Criteria that such
Subcontractor of the Issuer
performs;
|
Β
An
assessment of compliance provided by a Subcontractor of the Issuer pursuant
to
clause 8.5(e)(3)
need not address any elements of the Servicing Criteria other than those
specified by the Issuer pursuant to clause 8.5(f),
and need only address such of the Servicing Criteria that such Subcontractor
performs;
Β
(f) |
in
relation to the use of
Subcontractors:
|
Β
(1) |
the
Issuer shall promptly upon the reasonable request of the SF Manager
provide to the SF Manager (or any designee of the SF Manager) a
written
description (in form and substance satisfactory to the SF Manager)
of the
role and function of each Subcontractor utilized by the Issuer,
specifying:
|
Β
(A) |
the
identity of each such Subcontractor;
|
Β
(B) |
which
(if any) of such Subcontractors are "participating in the servicing
function" within the meaning of Item 1122 of Regulation AB;
andΒ
|
Β
(C) |
which
elements of the Servicing Criteria will be addressed in assessments
of
compliance provided by each Subcontractor identified pursuant to
clause
8.5(f)(1)(B);
|
Β
(2) |
as
a condition to the utilization of any Subcontractor determined
to be
"participating in the servicing function" within the meaning of
Item 1122
of Regulation AB, (i) the Issuer shall cause any such Subcontractor
used
by the Issuer for the benefit of the SF Manager to comply with
the
provisions of clauses 8.5(e)
- (i),
8.6
and 8.7
of this agreement to the same extent as if such Subcontractor were
the
Issuer (provided that in the case of a Subcontractor of the Issuer,
the
obligations of such Subcontractor under clause 8.5(g)
will be owed directly to the SF Manager and the Issuer will do
all things
reasonably necessary to cause the Subcontractor to owe such obligations
directly to the SF Manager) and (ii) the Issuer shall obtain the
written
consent of the SF Manager (which is not to be unreasonably withheld
or
delayed) to the utilization of such Subcontractor. The Issuer shall
be
responsible for obtaining from each Subcontractor and delivering
to the SF
Manager any assessment of compliance and accountantsβ attestation required
to be delivered by such Subcontractor under clause 8.5(e)
- (i),
in each case as and when required to be
delivered;
|
Β
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19
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
(g) |
the
Issuer shall indemnify the SF Manager and shall hold the SF Manager
harmless from and against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments,
and any
other costs, fees and expenses that it sustains directly as a result
of:
|
Β
(1) |
any
untrue statement of a material fact contained or alleged to be
contained
in any information, report, certification, accountantsβ letter or other
material provided in written or electronic form under this clause
8.5
by or on behalf of the Issuer, or provided under this clause 8.5
by or on behalf of any Subcontractor of the Issuer (collectively,
the
"IssuerΒ Information");
provided that in the case of any untrue statement of a material
fact
contained or alleged to be contained in the accountant's letter,
the
Issuer will indemnify and hold harmless the SF Manager only to
the extent
of the sum that the Issuer recovers from the accounting firm providing
such accountant's letter (which recovery the Issuer must if the
Issuer in
good faith determines the Issuer is entitled to do so after taking
professional advice pursue including by taking action in any relevant
court of competent jurisdiction); provided, further, that the Issuer
will
not indemnify and hold harmless the SF Manager to the extent that
the
untrue statement of a material fact contained or alleged to be
contained
in the Issuer Information relates to information provided to the
Issuer by
the SF Manager or any other party to enable the Issuer to complete
its
duties under the Transaction Documents; or
|
Β
(2) |
the
omission or alleged omission to state in the Issuer Information
a material
fact required to be stated in the Issuer Information or necessary
in order
to make the statements therein, in the light of the circumstances
under
which they were made, not misleading; provided, by way of clarification,
that this clause 8.5(g)(2)
shall be construed solely by reference to the Issuer Information
and not
to any other information communicated in connection with a sale
or
purchase of securities, without regard to whether the Issuer Information
or any portion thereof is presented together with or separately
from such
other information; provided, further, that in the case of the omission
or
alleged omission to state in an accountant's letter a material
fact
required to be stated in the accountant's letter or necessary in
order to
make the statements therein, in the light of the circumstances
under which
they were made, not misleading, the Issuer will indemnify and hold
harmless the SF Manager only to the extent of the sum that the
Issuer
recovers from the accounting firm providing such accountant's letter
(which recovery the Issuer must if the Issuer in good faith determines
the
Issuer is entitled to do so after taking professional advice pursue
including by taking action in any relevant court of competent
jurisdiction); provided, further, that the Issuer will not indemnify
and
hold harmless the SF Manager to the extent that the omission or
alleged
omission to state in the Issuer Information a material fact required
to be
stated in the Issuer Information or necessary in order to make
the
statements therein, in the light of the circumstances under which
they
were made, not misleading, relates to information provided to the
Issuer
by the SF Manager or any other party to enable the Issuer to complete
its
duties under the Transaction Documents;
or
|
Β
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20
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
(3) |
any
failure by the Issuer or any Subcontractor of the Issuer to deliver
any
information, report, certification, accountantsβ letter or other material
when and as required under this clause 8.5,
including any failure by the Issuer to disclose any non-compliance
with
any of the Servicing Criteria in a certification or to identify
pursuant
to clause 8.5(f)
any Subcontractor "participating in the servicing function" within
the
meaning of Item 1122 of Regulation AB. In the case of any failure
of
performance described in clause 8.5(g)(3),
the Issuer shall promptly reimburse the SF Manager, for all costs
reasonably incurred by the SF Manager in order to obtain the information,
report, certification, accountantsβ letter or other material not delivered
as required by the Issuer or any Subcontractor of the
Issuer;
|
Β
(h) |
any
failure by the Issuer or any Subcontractor of the Issuer
to:
|
Β
(1) |
deliver
any information, report, certification, accountantsβ letter or other
material when and as required under this clause 8.5,
shall, except as provided in clause 8.5(h)(2),
immediately and automatically, without notice or grace period,
entitle the
SF Manager, in its sole discretion:
|
Β
(A) |
to
remove the Issuer or direct the Issuer to remove the Subcontractor
of the
Issuer from the performance of any activities which the SF Manager
reasonably determines to constitute βparticipating in the servicing
functionβ in relation to the Securitisation Fund within the meaning of
Item 1122 of Regulation AB; and
|
Β
(B) |
to
replace such party with respect to such activities, each at the
expense of
the Issuer, without payment (notwithstanding anything in the Transaction
Documents to the contrary) of any compensation to the Issuer; provided
that to the extent that any provision of the Transaction Documents
expressly provides for the survival of certain rights or obligations
following termination of the Issuer, such provision shall be given
effect;
|
Β
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21
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
(2) |
deliver
any information, report, certification or accountantsβ letter when and as
required under clause 8.5(e)
- (i)
or (except as provided below) any failure by the Issuer to identify
pursuant to clause 8.5(f)
any Subcontractor of the Issuer "participating in the servicing
function"
within the meaning of Item 1122 of Regulation AB, which continues
unremedied for ten calendar days after the date on which such information,
report, certification or accountantsβ letter was required to be delivered,
shall entitle the SF Manager, in its sole discretion:Β
|
Β
(A) |
to
remove the Issuer or direct the Issuer to remove the Subcontractor
of the
Issuer from the performance of any activities which the SF Manager
reasonably determines to constitute βparticipating in the servicing
functionβ in relation to the Securitisation Fund within the meaning of
Item 1122 of Regulation AB; and
|
Β
(B) |
to
replace such party with respect to such activities, in the case
of the
Issuer or any Subcontractor of the Issuer, at the expense of the
Issuer,
without payment (notwithstanding anything in the Transaction Documents
to
the contrary) of any compensation to the Issuer;
|
Β
provided
that to the extent that any provision of the Transaction Documents expressly
provides for the survival of certain rights or obligations following termination
of the Issuer, such provision shall be given effect; and
Β
(i) |
the
Issuer shall promptly reimburse the SF Manager (or any designee
of the SF
Manager), for all reasonable expenses incurred by the SF Manager
(or such
designee), as such are incurred, in connection with the termination
of the
Issuer and the transfer of servicing activities within the meaning
of Item
1122 of Regulation AB to a successor. The provisions of this clause
8.5(i)
shall not limit whatever rights the SF Manager may have under other
provisions of the Transaction Documents or otherwise, whether in
equity or
at law, such as an action for damages, specific performance or
injunctive
relief.
|
Β
8.6 |
Direction
of claims by the SF
Manager
|
Β
(a) |
If
the Issuer is entitled to recover from the accounting firm providing
the
accountant's letter referred to in clause 8.5(g)
by any action, proceeding, claim or demand (for the purpose of
this clause
8.6,
a Claim),
the Issuer must if the Issuer in good faith determines that it
is entitled
to do so after taking professional advice pursue such Claim and
must
promptly notify the SF Manager in writing of such
Claim.
|
Β
(b) |
Upon
notice to the SF Manager of any such Claim under clause 8.6(a),
the SF Manager will have the option to assume the direction of
that Claim
(including the employment of legal advisers selected by the Issuer
but
approved by the SF Manager subject to the payment by the Issuer
of all
fees and expenses).
|
Β
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22
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
(c) |
If
the Issuer receives notice from the SF Manager of its election
to direct
the Claim and the SF Manager approves the legal advisers selected
by the
Issuer for the purposes of that Claim, the Issuer will not be liable
to
the SF Manager under this clause 8.6
for any fees or expenses subsequently incurred by the SF Manager
in
connection with the Claim unless the Issuer does not employ legal
advisers
approved by or on behalf of the SF Manager to represent the SF
Manager
within a reasonable time after notice of the
Claim.
|
Β
8.7 |
Direction
of defence of claims
|
Β
(a) |
If
any action, proceeding, claim or demand brought against the SF
Manager in
connection with (i) any untrue statement of a material fact contained
or
alleged to be contained in the Issuer Information referred to in
clause
8.5(g)
or (ii) the omission or alleged omission to state in the Issuer
Information a material fact required to be stated in the Issuer
Information or necessary in order to make the statements therein,
in the
light of the circumstances under which they were made, not misleading
(for
the purpose of this clause 8.7,
a Claim),
the Issuer will have the option to assume the direction of that
Claim
(including the employment of legal advisers selected by the Issuer
but
approved by the SF Manager subject to the payment by the Issuer
of all
fees and expenses).
|
Β
(b) |
If
the Issuer notifies the SF Manager in writing of its election to
direct
the defence of a Claim brought against the Issuer and the SF Manager
approves the legal advisers selected by the Issuer for the purposes
of the
defence of that Claim, the Issuer will not be liable to the SF
Manager
under this clause 8.7
for any fees or expenses subsequently incurred by the SF Manager
in
connection with the Claim against the Issuer unless the Issuer
does not
employ legal advisers approved by or on behalf of the SF Manager
to
represent the Issuer within a reasonable time after notice of the
Claim.
|
Β
(c) |
If
any Claim brought against the Issuer is settled with respect to
the Issuer
with the consent of the SF Manager or if there is a final judgement
against the Issuer in relation to it, the Issuer agrees to indemnify
and
hold harmless the SF Manager from and against any loss or liability
by
reason of such settlement or judgement (other than any fees and
expenses
incurred in circumstances where the Issuer is not liable for them
under
clause 8.7(b),
or any fees and expenses incurred in connection with any Claim
brought
against the Issuer that is settled with respect to the Issuer or
compromised by the Issuer without the consent of the SF Manager
(unless
the SF Manager has unreasonably withheld its
consent)).
|
Β
9 |
Events
of Default
|
Β
9.1 |
Operation
of clause 9
|
Β
Clauses
9.2
to 9.4
only have effect on and from the Termination Date.
Β
page
23
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
9.2 |
Effect
of Event of Default
|
Β
(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.
|
Β
(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.
|
Β
9.3 |
Issuer
to continue to perform
|
Β
(a) |
If
the Note Holder or OF Manager makes any declaration under clause
9.2:
|
Β
(1) |
the
declaration does not affect or diminish the duties and obligations
of the
Issuer or the SF Manager under the Transaction Documents;
and
|
Β
(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.
|
Β
(b) |
Clause
9.3(a)
does not affect the obligations of the Issuer or the SF Manager
under
clause 9.2.
|
Β
9.4 |
Enforcement
|
Β
(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.
|
Β
(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.
|
Β
10 |
Trustee
Limitation of Liability
Protection
|
Β
10.1 |
Limitation
of Liability - Issuer
|
Β
(a) |
Clause
26 of the Master Trust Deed applies to the obligations and liabilities
of
the Issuer and SF Manager under this
agreement.
|
Β
(b) |
The
Issuer enters into this agreement in its capacity as trustee of
the
Securitisation Fund and in no other capacity (except where the
Transaction
Documents provide otherwise). Subject to clause 10.1(d)
below, a liability of the Issuer arising under or in connection
with this
agreement or the Securitisation Fund is limited to and can be enforced
against the Issuer only to the extent to which it can be satisfied
out of
the assets and property of the Securitisation Fund which are available
to
satisfy the right of the Issuer to be exonerated or indemnified
for the
liability. This limitation of the Issuerβs 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 or the Securitisation
Fund.
|
Β
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24
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
(c) |
Subject
to clause 10.1(d),
no person (including any Relevant Party) may take action against
the
Issuer in any capacity other than as trustee of the Securitisation
Fund or
seek the appointment of a receiver (except under the Security Trust
Deed),
or 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 the assets of the Securitisation
Fund).
|
Β
(d) |
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 a Transaction Document or
by
operation of law there is a reduction in the extent of the Issuerβs
indemnification or exoneration out of the assets of the Securitisation
Fund, as a result of the Issuerβs fraud, negligence or wilful
default.
|
Β
(e) |
It
is acknowledged that the Relevant Parties are responsible under
this
agreement or the other Transaction Documents for performing a variety
of
obligations relating to the Securitisation Fund. No act or omission
of the
Issuer (including any related failure to satisfy its obligations
under
this agreement) will be considered fraud, negligence or wilful
default of
the Issuer for the purposes of clause 10.1(d)
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 has been
delegated or appointed by the Issuer in accordance with the Transaction
Documents to fulfil its obligations relating to the Securitisation
Fund or
by any other act or omission of a Relevant Party or any other
person.
|
Β
(f) |
No
attorney, agent, receiver or receiver and manager appointed in
accordance
with this agreement or any other Transaction Document 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
clause 10.1(d).
|
Β
(g) |
In
this clause 10.1,
Relevant
Parties means
any party to a Transaction Document other than the
Issuer.
|
Β
(h) |
The
Issuer is not obliged to do or refrain from doing anything under
this
agreement (including incur any liability) unless the Issuerβs liability is
limited in the same manner as set out in clauses 10.1(b)
to 10.1(f).
|
Β
10.2 |
Limitation
of Liability - Note Holder
|
Β
(a) |
Clause
26 of the Master Trust Deed applies to the obligations and liabilities
of
the Note Holder and OF Manager under this
agreement.
|
Β
(b) |
The
Note Holder enters into this agreement only in its capacity as
trustee of
the Origination Fund and no other capacity. A liability of the
Note Holder
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 Holderβs 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.
|
Β
page
25
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
(c) |
The
parties other than the Note Holder may not take action against
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).
|
Β
(d) |
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 Master Trust
Deed
establishing the Origination Fund or by operation of law there
is a
reduction in the extent of the Note Holderβs indemnification out of the
assets of the Origination Fund, as a result of the Note Holderβs fraud,
negligence or wilful default.
|
Β
(e) |
It
is acknowledged that the OF Manager is responsible under the Master
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 clause 10.2(d)
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.
|
Β
(f) |
No
attorney, agent, receiver or receiver and manager appointed in
accordance
with this 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 clause 10.2(d).
|
Β
(g) |
The
Note Holder is not obliged to do or refrain from doing anything
under this
agreement (including incur any liability) unless the Note Holderβs
liability is limited in the same manner as set out in clauses 10.2(a)
to 10.2(f).
|
Β
Β
10.3 |
Wilful
Default of the Issuer
and the Note Holder
|
Β
For
the purposes of this agreement, the expression "wilful default":
Β
(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:
|
Β
(1) |
other
than a default which:
|
Β
page
26
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
(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 clause 10.3(b)
in relation to the Issuer or the Note Holder;
|
Β
(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;
|
Β
(C) |
is
in accordance with a lawful court order or direction or is required
by
law; or
|
Β
(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
|
Β
(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.
|
Β
(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.
|
Β
11 |
Indemnities
|
Β
11.1 |
General
indemnity
|
Β
(a) |
Subject
to clause 10.1
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 of the Note Holder or OF Manager pays, suffers, incurs
or is
liable for, in respect of any of the
following:
|
Β
(1) |
a
Funding Portion required by a Funding Notice, not being made for
any
reason, but excluding any default by the Note Holder or OF Manager,
as the
case may be;
|
Β
(2) |
any
repayment or prepayment of all or part of a Funding Portion being
made on
a date other than the relevant Payment
Date.
|
Β
(b) |
Without
limitation to the indemnity contained in clause 11.1(a),
that indemnity includes the amount determined by the Note Holder
or
OFΒ 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.
|
Β
page
27
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
11.2 |
Continuing
indemnities and evidence of
loss
|
Β
(a) |
Each
indemnity of the Issuer contained in this agreement is a continuing
obligation of the Issuer, despite:
|
Β
(1) |
any
settlement of account; or
|
Β
(2) |
the
occurrence of any other thing,
|
Β
and
remains in full force and effect until:
Β
(3) |
all
moneys owing, contingently or otherwise, under any of the Material
Documents have been paid in full;
and
|
Β
(4) |
the
Outstanding Moneys are fully and finally
repaid.
|
Β
(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.
|
Β
(c) |
Each
indemnity of the Issuer contained in this agreement survives the
termination of any Transaction Document.
|
Β
(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.
|
Β
11.3 |
Funds
available for indemnity
|
Β
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.
Β
11.4 |
Negligence,
wilful default or breach of
law
|
Β
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.
Β
11.5 |
Notification
from Note Holder or OF
Manager
|
Β
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.
Β
page
28
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
12 |
Tax,
costs and expenses
|
Β
12.1 |
Tax
|
Β
(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:
|
Β
(1) |
any
Material Document;
|
Β
(2) |
any
agreement or document entered into or signed under any Material
Document;
and
|
Β
(3) |
any
transaction contemplated under any Material Document or any agreement
or
document described in clause 12.1(a)(2).
|
Β
(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.
|
Β
(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.
|
Β
12.2 |
Costs
and expenses
|
Β
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:
Β
(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);
|
Β
(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);
|
Β
(c) |
the
consent or approval of the Note Holder or OF Manager given under
any
Material Document or any agreement or document described in
clauseΒ 12.1(a);
and
|
Β
(d) |
any
enquiry by any Governmental Agency involving a Transaction
Party,
|
Β
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.
Β
page
29
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
12.3 |
Goods
and services tax
|
Β
(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.
|
Β
(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.
|
Β
(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 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.
|
Β
(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.
|
Β
(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.
|
Β
13 |
Interest
on overdue amounts
|
Β
13.1 |
Payment
of interest
|
Β
The
Issuer must, and the SF Manager must cause the Issuer to, pay interest
on:
Β
(a) |
any
of the Outstanding Moneys due and payable, but unpaid;
and
|
Β
(b) |
on
any interest payable but unpaid in accordance with clause 5.
|
Β
13.2 |
Accrual
of interest
|
Β
The
interest payable under this clause 13:
Β
(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
|
Β
(b) |
may
be capitalised by the Note Holder on any relevant Payment
Date.
|
Β
page
30
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
13.3 |
Rate
of interest
|
Β
The
rate of interest payable under this clause 13
on any part of the Outstanding Moneys is the higher of:
Β
(a) |
the
Overdue Rate; and
|
Β
(b) |
the
rate fixed or payable under a judgment or other thing referred
to in
clause 13.2(a).
|
Β
14 |
Assignment
|
Β
14.1 |
Assignment
by Transaction Party
|
Β
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
OFΒ Manager, the Note Holder and each Designated Rating Agency.
Β
14.2 |
Assignment
by Note Holder
and OF Manager
|
Β
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.
Β
14.3 |
Assist
transfer or assignment
|
Β
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.
Β
14.4 |
Participation
permitted
|
Β
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 Managerβs, 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.
Β
14.5 |
Lending
Office
|
Β
(a) |
The
Note Holder may change its Lending Office at any
time.
|
Β
(b) |
The
Note Holder must promptly notify the Issuer and the SF Manager
of any such
change.
|
Β
14.6 |
Disclosure
|
Β
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.
Β
page
31
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
14.7 |
No
increase in costs
|
Β
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
isΒ not
required to pay any net increase in the aggregate amount of costs, Taxes,
fees
or charges which:
Β
(a) |
are
aΒ direct
consequence of the transfer or assignment or change of Lending
Office;
and
|
Β
(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.
|
Β
15 |
General
|
Β
15.1 |
Confidential
information
|
Β
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.
Β
15.2 |
Performance
by Note Holder of
obligations
|
Β
If
a Transaction Party defaults in fully and punctually performing any obligation
contained or implied in any Transaction Document, the Note Holder and
OFΒ 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.
Β
15.3 |
Transaction
Party to bear cost
|
Β
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.
Β
15.4 |
Notices
|
Β
(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:
|
Β
(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:
|
Β
(A) |
if
to the Note Holder:
|
Β
page
32
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
Address: |
Xxxxx
00
|
000
Xxxx Xxxxxx
Xxxxxx,
XXX, 0000
Β
Attention: |
Head
of Debt Markets/Manager -
Securitisation
|
Β
Facsimile: |
(00)
0000 0000; and
|
Β
(B) |
if
to the Issuer:
|
Β
Address: |
Xxxxx
00
|
000
Xxxx Xxxxxx
Xxxxxx,
XXX, 0000
Β
Attention: |
Head
of Debt Markets/Manager -
Securitisation
|
Β
Facsimile: |
(00)
0000 0000;
|
Β
(C) |
if
to the SF Manager:
|
Β
Address: |
Xxxxx
00,
|
000
Xxxxxxx Xxxxxx,
Xxxxxxxxx,
Xxxxxxxx 0000
Β
Attention: |
Manager
- Capital Markets
|
Β
Facsimile: |
(00)
0000 0000; and
|
Β
(D) |
if
to the OF Manager:
|
Β
Address: |
Xxxxx
00,
|
000
Xxxxxxx Xxxxxx,
Xxxxxxxxx,
Xxxxxxxx 0000
Β
Attention: |
Manager
- Capital Markets
|
Β
Facsimile: |
(00)
0000 0000;
|
Β
or
as specified to the sender by any party by notice;
Β
(2) |
where
the sender is a company, must be signed by an Officer or under
the common
seal of the sender;
|
Β
(3) |
is
regarded as being given by the sender and received by the
addressee:
|
Β
(A) |
if
by delivery in person, when delivered to the
addressee;
|
Β
(B) |
if
by post, on delivery to the addressee;
or
|
Β
(C) |
if
by facsimile transmission, as long as it is legibly received, when
transmitted to the addressee,
|
Β
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;
Β
(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
|
Β
page
33
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
(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.
|
Β
(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.
|
Β
(c) |
In
this clause 15.4,
a reference to an addressee includes a reference to an addressee's
Officers, agents or employees.
|
Β
15.5 |
Governing
law and jurisdiction
|
Β
(a) |
This
agreement is governed by the laws of New South
Wales.
|
Β
(b) |
The
parties irrevocably submit to the non-exclusive jurisdiction of
the courts
of New South Wales.
|
Β
15.6 |
Prohibition
and enforceability
|
Β
(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.
|
Β
(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.
|
Β
15.7 |
Waivers
|
Β
(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.
|
Β
(b) |
A
failure or delay in exercise, or partial exercise,
of:
|
Β
(1) |
a
right arising from a breach of this agreement;
or
|
Β
(2) |
a
Power created or arising upon default under this
agreement,
|
Β
does
not result in a waiver of that right or Power.
Β
(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.
|
Β
(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.
|
Β
(e) |
This
clause may not itself be waived except by
writing.
|
Β
15.8 |
Variation
|
Β
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.
Β
page
34
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
15.9 |
Cumulative
rights
|
Β
The
Powers are cumulative and do not exclude any other right, power, authority,
discretion or remedy of the Note Holder or OF Manager.
Β
15.10 |
Attorneys
|
Β
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.
Β
15.11 |
Binding
Obligations
|
Β
Each
party to this agreement acknowledges that the obligations expressed in this
agreement are binding upon it.
Β
15.12 |
Winding
up of Securitisation Fund
|
Β
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 or the SF Manager.
Β
15.13 |
Termination
|
Β
This
agreement can only be terminated on or after the Termination Date.
Β
15.14 |
Counterparts
|
Β
(a) |
This
agreement may be executed in any number of
counterparts.
|
Β
(b) |
All
counterparts, taken together, constitute 1
instrument.
|
Β
(c) |
A
party may execute this agreement by signing any
counterpart.
|
Β
page
35
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
Schedule
1 - Funding Notice (clause 4.2)
Β
Β
To: |
Perpetual
Limited
|
in
its capacity as trustee of the Origination Fund
(Note
Holder)
Β
Attention:
Head of Debt Markets/Manager - Securitisation
Β
And: |
ME
Portfolio Management
Limited
|
in
its capacity as manager of the Origination Fund
(OF
Manager)
Β
Attention:
Manager - Capital Markets
Β
Β
We
refer to the Payment Funding Facility Agreement dated [insert
date]
(Agreement).
Pursuant to clause 4 of the Agreement:
Β
(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 [insert
date]
(Funding
Date);
|
Β
(b) |
the
aggregate principal amount of the Note is: $[insert
amount];
|
Β
(c) |
we
request that the proceeds be remitted to account number [insert
details]
at [insert
address]
/[insert
alternative instructions];
|
Β
(d) |
The
relevant Payment Period is a [Quarterly/Monthly]
Payment Period commencing on the Funding
Date;
|
Β
(e) |
The
Issuer represents and warrants
that:
|
Β
(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]
|
Β
(2) |
details
of the exceptions to paragraph (e)(1) are as follows: [insert
details],
and the Issuer [has taken/proposes] the following remedial action
[insert
details]];
|
Β
(f) |
The
SF Manager represents and warrants
that:
|
Β
(1) |
[(except
as disclosed in paragraph (f)(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]
|
Β
(2) |
details
of the exceptions to paragraph (f)(1) are as follows: [insert
details],
and the SF Manager [has taken/proposes] the following remedial
action
[insert
details]].
|
Β
Expressions
defined in the Agreement have the same meaning when used in this Funding
Notice.
Β
page
36
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
Dated:Β
Β
Signed
for and on behalf of
ME
Portfolio
Management Limited
Β
Β
Β
Β
Β
Signed
for and on behalf of
Perpetual
Limited
Β
Β
Β
Β
Β
page
37
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
Β
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
Β
PERPETUAL
LIMITED
ABN
86 000 000 000
in
its capacity as trustee of the SMHL Global Fund 2007-1
of
Xxxxx 00, 000 Xxxx Xxxxxx, Xxxxxx, XXX, 0000
(βIssuerβ)
Β
whose
office for the purposes of payment is at Xxxxx 00, 000 Xxxx Xxxxxx, Xxxxxx,
XXX,
0000 or such other address as the Issuer may notify to the Note Holder from
time
to time.
Β
1 |
Note
|
Β
(a) |
This
Note certificate is issued as part of the Notes of SMHL Global
Fund
2007-1. The terms and conditions of the issue of this Note and
repayment
are constituted by this Note and the Payment Funding Facility Agreement
for the Issue and Repayment of the Notes of SMHL Global Fund 2007-1
dated
[insert
date]
between the Issuer, the Note Holder, ME Portfolio Management
LimitedΒ (ABN
79 005 964 134) of Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx,
in
its capacity as manager of the SMHL Global Fund 0000-0 (XX
Xxxxxxx)
and ME Portfolio Management LimitedΒ (ABN
79 005 964 134) of Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx,
in
its capacity as manager of the Superannuation Membersβ Home Loans
Origination Fund No. 3 (OF
Manager)
(Agreement).
Terms defined in the Agreement have the same meaning when used
in these
Conditions.
|
Β
(b) |
Subject
to clause 3, the Issuer promises to repay the principal amount
in
accordance with the Agreement.
|
Β
(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.
|
Β
2 |
Derivation
of payment
|
Β
The
parties acknowledge that the payments to be made by the Issuer under this
Note
are derived by it from the receipts from a βmortgageβ or βpool of mortgagesβ, as
those terms are defined in section 3 of the Duties Xxx 0000 (Vic).
Β
3 |
Extent
of liability of Issuer
|
Β
(a) |
Clause
26 of the Master Trust Deed applies to the obligations and liabilities
of
the Issuer and SF Manager under this
Note.
|
Β
(b) |
The
Issuer issues this Note in its capacity as trustee of the Securitisation
Fund and in no other capacity (except where the Transaction Documents
provide otherwise). Subject to clause 3(d),
a liability of the Issuer arising under or in connection with this
Note or
the Agreement or the Securitisation Fund is limited to and can
be enforced
against the Issuer only to the extent to which it can be satisfied
out of
the assets and property of the Securitisation Fund which are available
to
satisfy the right of the Trustee to be exonerated or indemnified
for the
liability. This limitation of the Issuerβs 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.
|
Β
page
38
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
(c) |
Subject
to clause 3(d),
no person (including any Relevant Party) may take action against
the
Issuer in any capacity other than as trustee of the Securitisation
Fund or
seek the appointment of a receiver (except under the Security Trust
Deed),
or 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 the assets of the Securitisation
Fund).
|
Β
(d) |
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 a Transaction Document or
by
operation of law there is a reduction in the extent of the Issuerβs
indemnification or exoneration out of the assets of the Securitisation
Fund, as a result of the Issuerβs fraud, negligence or wilful
default.
|
Β
(e) |
It
is acknowledged that the Relevant Parties are responsible under
this Note
and the Agreement and the Transaction Documents for performing
a variety
of obligations relating to the Securitisation Fund. No act or omission
of
the Issuer (including any related failure to satisfy its obligations
under
this Note or the Agreement) will be considered fraud, negligence
or wilful
default of the Issuer for the purposes of clause 3(d)
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 has been
delegated or appointed by the Issuer in accordance with the Transaction
Documents to fulfil its obligations relating to the Securitisation
Fund or
by any other act or omission of a Relevant Party or any other
person.
|
Β
(f) |
No
attorney, agent, receiver or receiver and manager appointed in
accordance
with this Note or the Agreement or any other Transaction Document 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 clause 3(d).
|
Β
(g) |
In
this clause 3,
Relevant
Parties means
any party to a Transaction Document other than the
Issuer.
|
Β
(h) |
The
Issuer is not obliged to do or refrain from doing anything under
this Note
or the Agreement (including incur any liability) unless the Issuerβs
liability is limited in the same manner as set out in clauses 3(a)
to 3(f).
|
Β
4 |
Extent
of liability of Note Holder
|
Β
(a) |
Clause
26 of the Master Trust Deed applies to the obligations and liabilities
of
the Note Holder and OF Manager under this
Note.
|
Β
(b) |
The
Note Holder issues 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 Holderβs 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.
|
Β
page
39
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
(c) |
The
parties other than the Note Holder may not take action against
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).
|
Β
(d) |
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 Holderβs indemnification
out of the assets of the Origination Fund, as a result of the Note
Holderβs fraud, negligence or wilful
default.
|
Β
(e) |
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 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 clause 4(d)
to the extent to which the act or omission was caused or contributed
to by
any failure by the OFΒ 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.
|
Β
(f) |
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 clause
4(d).
|
Β
(g) |
The
Note Holder is not obliged to do or refrain from doing anything
under this
Note or the Agreement (including incur any liability) unless the
Note
Holderβs liability is limited in the same manner as set out in clauses
4(a)
to 4(f).
|
Β
5 |
Wilful
Default of the Issuer and Note
Holder
|
Β
For
the purposes of this Note, the expression "wilful default":
Β
(a) |
in
relation to the Issuer and the Note
Holder, means a wilful default of this Note and the Agreement by
the
Issuer or the Note Holder, as the case may
be:
|
Β
(1) |
other
than a default which:
|
Β
(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 clause 5(b) in
relation
to the Issuer or the Note Holder;
|
Β
(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;
|
Β
(C) |
is
in accordance with a lawful court order or direction or is required
by
law; or
|
Β
page
40
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
(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
|
Β
(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 Note and the
Agreement
from the Fund.
|
Β
(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 Note and
the
Agreement.
|
Β
page
41
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
Schedule
3 - Report on assessment of compliance with Regulation AB servicing
criteria
Β
Β
ME
Portfolio Management Limited
Xxxxx
00
000
Xxxxxxx Xxxxxx
Xxxxxxxxx
XXX 0000
Β
Β
[________________]
(the "Asserting
Party")
is responsible for assessing compliance as of June 30, [Β ]
and for the period from [Β Β ]
(date of issuance of SMHL Global Fund 2007-1) through June 30, [Β ]
(the "Reporting
Period")
with the servicing criteria set forth in Section 229.1122(d) of the Code
of
Federal Regulations (the "CFR"),
except for criteria 229.1122(d)[insert
section numbers in Regulation AB that are not applicable to Asserting
Party]
of the CFR, which have not been determined pursuant to the transaction documents
for the SMHL Global Fund 2007-1 to be, and the Asserting Party has concluded
are
not, servicing criteria that the Asserting Party performs, or in which the
Asserting Party participates, in relation to SMHL Global Fund 2007-1 (the
"Applicable
Servicing Criteria").
This assessment of compliance is provided in relation to SMHL Global Fund
2007-1.
Β
The
Asserting Party has assessed its compliance with the Applicable Servicing
Criteria for the Reporting Period and has concluded that the Asserting Party
has
complied, in all material respects, with the Applicable Servicing Criteria
in
relation to SMHL Global Fund 2007-1.
Β
[____________],
an independent registered public accounting firm, has issued an attestation
report on the assessment of compliance with the Applicable Servicing Criteria
for the Reporting Period as set forth in this assertion.
Β
[NAME
OF ASSERTING PARTY]
|
|
Β | Β |
Β | Β |
Date:
|
Β |
Β | Β |
Β | Β |
By:
|
Β |
Β | Β |
Name:
|
Β |
Β | Β |
Β | Β |
Title:
|
Β |
Β Β Β Β
page
42
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
Schedule
4 - Servicing Criteria to be addressed in assessment of
compliance
Β
SERVICING
CRITERIA
|
APPLICABLE
SERVICING CRITERIA
|
|
Reference
|
Criteria
|
Β |
Β |
General
Servicing Considerations
|
Β |
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
Β |
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third partyβs
performance and compliance with such servicing activities.
|
Β |
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
Β |
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on
the party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
Β |
Β |
Cash
Collection and Administration
|
Β |
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than two
business days
following receipt, or such other number of days specified in
the
transaction agreements.
|
Β |
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
Β |
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are
made,
reviewed and approved as specified in the transaction
agreements.
|
Β |
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are
separately
maintained (e.g., with respect to commingling of cash) as set
forth in the
transaction agreements.
|
Β |
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, "federally insured depository institution" with
respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities
Exchange
Act.
|
Β |
page
43
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
SERVICING
CRITERIA
|
APPLICABLE
SERVICING CRITERIA
|
|
Reference
|
Criteria
|
Β |
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
Β |
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank
clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling
items. These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the
transaction
agreements.
|
Β |
Β |
Investor
Remittances and Reporting
|
Β |
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and
applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance
with the
terms specified in the transaction agreements; (C) are filed
with the
Commission as required by its rules and regulations; and (D)
agree with
investorsβ or the trusteeβs records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
Β |
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
Β |
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicerβs
investor records, or such other number of days specified in the
transaction agreements.
|
Β |
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
Β |
Β
page
44
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
SERVICING
CRITERIA
|
APPLICABLE
SERVICING CRITERIA
|
|
Reference
|
Criteria
|
Β |
Β |
Pool
Asset Administration
|
Β |
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the
transaction
agreements or related mortgage loan documents.
|
Β |
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the
transaction
agreements
|
Β |
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
Β |
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance
with the
related mortgage loan documents are posted to the Servicerβs obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements,
and
allocated to principal, interest or other items (e.g., escrow)
in
accordance with the related mortgage loan documents.
|
Β |
1122(d)(4)(v)
|
The
Servicerβs records regarding the mortgage loans agree with the Servicerβs
records with respect to an obligorβs unpaid principal
balance.
|
Β |
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage
loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
Β |
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions,
as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
Β |
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entityβs
activities in monitoring delinquent mortgage loans including,
for example,
phone calls, letters and payment rescheduling plans in cases
where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
Β |
page
45
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
SERVICING
CRITERIA
|
APPLICABLE
SERVICING CRITERIA
|
|
Reference
|
Criteria
|
Β |
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with
variable
rates are computed based on the related mortgage loan
documents.
|
Β |
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligorβs mortgage loan
documents, on at least an annual basis, or such other period
specified in
the transaction agreements; (B) interest on such funds is paid,
or
credited, to obligors in accordance with applicable mortgage
loan
documents and state laws; and (C) such funds are returned to
the obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
Β |
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that
such support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
Β |
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicerβs funds and not charged to the
obligor, unless the late payment was due to the obligorβs error or
omission.
|
Β |
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligorβs records maintained by the servicer, or such other number of
days
specified in the transaction agreements.
|
Β |
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
Β |
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
Β |
Β
page
46
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
Executed
as an agreement:
Β
Β
ISSUER:
Signed
for
Perpetual
Limited
by
its attorney in
the
presence of:
Β
/s/
Xxxxxxx Low
|
Β |
/s/
Xxxxx Xxxxxx
|
Witness
|
Β |
Attorney
|
Β | Β | Β |
Xxxxxxx
Low
|
Β |
Xxxxx
Xxxxxx
|
Name
(please print)
|
Β |
Name
(please print)
|
Β
NOTE
HOLDER:
Signed
for
Perpetual
Limited
by
its attorney in
the
presence of:
Β
/s/
Xxxxxxx Low
|
Β |
/s/
Xxxxx Xxxxxx
|
Witness
|
Β |
Attorney
|
Β | Β | Β |
Xxxxxxx
Low
|
Β |
Xxxxx
Xxxxxx
|
Name
(please print)
|
Β |
Name
(please print)
|
page
47
Payment
Funding Facility Agreement - SMHL Global Fund 2007-1
Β
SF
MANAGER:
Signed
for
ME
Portfolio Management Limited
by
its attorney in
the
presence of:
Β
/s/
Xxxxxxx Xxxxx
|
Β |
/s/
Xxxxxxx X. Xxxxxx
|
Witness
|
Β |
Attorney
|
Β | Β | Β |
Xxxxxxx
Xxxxx
|
Β |
Xxxxxxx
X. Xxxxxx
|
Name
(please print)
|
Β |
Name
(please print)
|
Β
OF
MANAGER:
Signed
for
ME
Portfolio Management Limited
by
its attorney in
the
presence of:
Β
/s/
Xxxxxxx Xxxxx
|
Β |
/s/
Xxxxxxx X. Xxxxxx
|
Witness
|
Β |
Attorney
|
Β | Β | Β |
Xxxxxxx
Xxxxx
|
Β |
Xxxxxxx
X. Xxxxxx
|
Name
(please print)
|
Β |
Name
(please print)
|
Β
page
48
Β