XXXXXXX XXX
Medallion Trust Series [__]
Standby Redraw Facility Agreement
Commonwealth Bank of Australia
ABN 48 123 123 124
Perpetual Trustee Company Limited
ABN 42 000 001 007
Securitisation Advisory Services Pty. Limited
ABN 88 064 133 946
If you have any questions about the details of this document
PLEASE CONTACT [___________________________] ON + 61 2 9353 4000
Xxxxxxx Xxx
Lawyers
Levels 19-35 No. 0 X'Xxxxxxx Xxxxxx Xxxxxx XXX 0000 Xxxxxxxxx
XX Xxx X0 Xxxxxxxxx Xxxxxx Xxxxxx XXX 0000
T + 61 2 9353 4000 F + 61 2 8220 6700
XXX.XXXXXXXXXX.XXX
Our reference [_________________]
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION......................................... 1
1.1 Definitions...................................................... 1
1.2 Series Supplement and Master Trust Deed Definitions.............. 4
1.3 Interpretation................................................... 4
1.4 Trustee Capacity................................................. 6
1.5 Master Trust Deed and Series Supplement.......................... 6
1.6 Incorporated Definitions and other Transaction Documents and
provisions....................................................... 6
2. THE FACILITY........................................................... 6
2.1 Amount........................................................... 6
2.2 Purpose.......................................................... 6
2.3 Extension of Scheduled Termination Date.......................... 7
2.4 Termination of the Facility...................................... 7
3. CONDITIONS PRECEDENT................................................... 7
3.1 Conditions Precedent to First Advance............................ 7
3.2 Conditions Precedent to all Advances............................. 7
4. DRAWDOWN............................................................... 8
4.1 Preparation of Drawdown Notices.................................. 8
4.2 Service of Drawdown Notices...................................... 8
4.3 Requirements of Drawdown Notices................................. 8
4.4 Availability of Facility......................................... 9
4.5 Making of Advances............................................... 9
4.6 Book Entry Set-off of Advances against Seller Advances........... 9
5. INTEREST............................................................... 9
5.1 Interest Period.................................................. 9
5.2 Calculation of Interest.......................................... 9
5.3 Payment of Interest.............................................. 10
5.4 Interest on Unpaid Interest...................................... 10
5.5 Interest on Overdue Sums......................................... 10
6. REPAYMENT OF STANDBY REDRAW FACILITY PRINCIPAL......................... 10
6.1 Repayment of Standby Redraw Facility Principal during the
Availability Period.............................................. 10
6.2 Re-Drawing....................................................... 10
6.3 Repayment on Termination......................................... 10
6.4 Payments Under Security Trust Deed............................... 10
6.5 Principal Chargeoffs............................................. 11
6.6 Principal Chargeoff Reimbursement................................ 11
7. PAYMENTS............................................................... 11
7.1 Time on Due Date and Free of Set-off & Taxes..................... 11
7.2 Certificate...................................................... 11
8. ILLEGALITY AND INCREASED COST.......................................... 11
8.1 Illegality....................................................... 11
8.2 Increased Cost................................................... 12
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9. FEES................................................................... 12
10. REPRESENTATIONS AND WARRANTIES......................................... 13
10.1 General Representations and Warranties........................... 13
10.2 Corporate Representations and Warranties......................... 13
10.3 Series Trust Representations and Warranties...................... 13
10.4 Representations and Warranties Repeated.......................... 14
11. UNDERTAKINGS........................................................... 14
11.1 General.......................................................... 14
11.2 Manager's Undertakings after Manager Event....................... 14
12. EVENTS OF DEFAULT...................................................... 15
12.1 Events of Default................................................ 15
12.2 Consequences of Event of Default................................. 16
13. TRUSTEE PROVISIONS..................................................... 16
13.1 Limitation on Trustee's Liability................................ 16
13.2 Claims against Trustee........................................... 16
13.3 Breach of Trust.................................................. 16
13.4 Acts or omissions................................................ 16
13.5 No authority..................................................... 17
13.6 No obligation.................................................... 17
14. ASSIGNMENT............................................................. 17
14.1 Assignment by Trustee............................................ 17
14.2 Assignment by Standby Redraw Facility Provider................... 17
15. NOTICES................................................................ 17
15.1 Method of Delivery............................................... 17
15.2 Deemed Receipt................................................... 18
15.3 Email............................................................ 18
16. INDEMNITY.............................................................. 18
16.1 Indemnity on Demand.............................................. 18
16.2 Losses on Liquidation or Re-employment of Deposits............... 18
16.3 Payment on Quarterly Distribution Date........................... 19
17. MISCELLANEOUS.......................................................... 19
17.1 Stamp Duties..................................................... 19
17.2 Waiver........................................................... 19
17.3 Written Waiver, Consent and Approval............................. 19
17.4 Severability..................................................... 20
17.5 Survival of Indemnities.......................................... 20
17.6 Successors and Assigns........................................... 20
17.7 Moratorium Legislation........................................... 20
17.8 Amendments....................................................... 20
17.9 Governing Law.................................................... 20
17.10 Jurisdiction..................................................... 20
17.11 Counterparts..................................................... 21
17.12 Contra proferentem............................................... 21
17.13 Know your customer............................................... 21
17.14 Compliance with Regulation AB.................................... 21
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SCHEDULE DRAWDOWN NOTICE................................................... 22
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THIS STANDBY REDRAW FACILITY AGREEMENT MADE AT SYDNEY ON [__________]
PARTIES COMMONWEALTH BANK OF AUSTRALIA ABN 48 123 123 124 of Xxxxx 0, 00
Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxx (the "STANDBY REDRAW FACILITY
PROVIDER")
PERPETUAL TRUSTEE COMPANY LIMITED ABN 42 000 001 007 of Xxxxx 00, 000
Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxx, in its capacity as trustee of the
Series Trust (the "TRUSTEE")
SECURITISATION ADVISORY SERVICES PTY LIMITED ABN 88 064 133 946 of
Xxxxx 0, 00 Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxx ("XXX" and also
hereinafter included within the expression the "MANAGER")
BACKGROUND
A. The Trustee and the Manager are respectively the trustee and the manager
of the Series Trust.
B. The Manager has requested the Standby Redraw Facility Provider to provide
the Trustee with the Facility in connection with the Approved Purpose.
C. The Standby Redraw Facility Provider has agreed to provide the Facility to
the Trustee on the terms and conditions contained in this Agreement.
OPERATIVE PROVISIONS
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement, unless the contrary intention appears:
"ADVANCE" means the principal amount of each advance to the Trustee by the
Standby Redraw Facility Provider in accordance with this Agreement.
"APPROVED PURPOSE" means the use of an Advance to meet a Redraw Shortfall
in accordance with the Series Supplement.
"AUTHORISED OFFICER" in relation to the Standby Redraw Facility Provider
means any person from time to time appointed by the Standby Redraw
Facility Provider to act as its Authorised Officer for the purposes of
this Agreement and notified to the Trustee.
"AVAILABILITY PERIOD" means the period commencing on the date of this
Agreement and ending on the Termination Date.
"BBSW" in relation to an Interest Period means the rate appearing at
approximately 10.00 am on the first day of that Interest Period on the
Reuters Screen page "BBSW" as being the average of the mean buying and
selling rates appearing on that page for a xxxx of exchange having a tenor
of three months. If on the first day of a Interest Period fewer than four
banks are quoted on the Reuters Screen page "BBSW" or for any other reason
"BBSW" for an Interest Period cannot be determined in accordance with the
foregoing provisions, then "BBSW" for that Interest Period means such rate
as is specified by the Standby Redraw Facility Provider having regard to
comparable indices then available.
"DRAWDOWN DATE" means, in relation to an Advance or proposed Advance, the
Quarterly Distribution Date immediately following the delivery of the
corresponding Drawdown Notice to the Standby Redraw Facility Provider in
accordance with this Agreement.
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"DRAWDOWN MARGIN" means [_]% per annum.
"DRAWDOWN NOTICE" means a notice given under clause 4.
"DRAWING" means, subject to clause 4.6, an Advance by way of deposit by
the Standby Redraw Facility Provider in the Collections Account in
accordance with clause 4.5.
"EFFECTIVE CONTROL" means:
(a) control of the composition of the board of directors of SAS;
(b) control of more than half of the voting power of SAS; or
(c) control of more than half of the issued share capital of SAS
excluding any part of such issued share capital which carries no
right to participate beyond a specified amount in the distribution of
either profit or capital.
"EVENT OF DEFAULT" means any of the events set out or referred to in
clause 12.1 as an Event of Default.
"FACILITY" means the standby redraw facility granted to the Trustee by the
Standby Redraw Facility Provider on the terms and conditions of this
Agreement.
"FACILITY LIMIT" means at any given time the lesser of:
(a) A$[_] million; and
(b) the Performing Mortgage Loans Amount at that time;
or such greater or lesser amount from time to time agreed in writing by
the Standby Redraw Facility Provider, the Manager and the Rating Agencies
and notified to the Trustee in writing.
"INTEREST PERIOD" means each period determined in accordance with clause
5.1.
"MANAGER" means SAS or if SAS retires or is removed as manager of the
Series Trusts (as defined in the Master Trust Deed), any then Substitute
Manager, and includes the Trustee when acting as the manager of the Series
Trust in accordance with the provisions of the Master Trust Deed.
"MANAGER EVENT" means:
(a) SAS ceases to be a body over which the Standby Redraw Facility
Provider has Effective Control; or
(b) SAS ceases to be the manager of the Series Trust.
"MASTER TRUST DEED" means the Master Trust Deed dated 8 October 1997
between the Trustee and SAS, as amended from time to time.
"NET PRINCIPAL" in relation to a Determination Date means the aggregate of
the Principal Collections, the Principal Draw Reimbursement, the Principal
Charge-off Reimbursement and the Other Principal Amounts for the
Collection Period just ended, less the Net Income Shortfall on that
Determination Date, provided that if the above calculation produces an
amount less than zero, then "NET PRINCIPAL" will be zero for that
Determination Date.
"OBLIGATIONS" means all of the liabilities of the Trustee to the Standby
Redraw Facility Provider under this Agreement and, without limiting the
generality of the foregoing, includes any liabilities which:
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(a) are liquidated;
(b) are present, prospective or contingent;
(c) relate to the payment of money or the performance or omission of any
act;
(d) sound in damages only; or
(e) accrue as a result of any Event of Default.
"PERFORMING MORTGAGE LOANS AMOUNT" means at any time the aggregate of the
following:
(a) the amount outstanding under Mortgage Loans forming part of the
Assets of the Series Trust in relation to which no payment due from
the relevant Borrower has been in arrears by more than 90 days; and
(b) the amount outstanding under Mortgage Loans forming part of the
Assets of the Series Trust in relation to which a payment due from
the relevant Borrower has been in arrears by more than 90 days and
which are insured under a Mortgage Insurance Policy.
"PRESCRIBED RATE" in relation to an Interest Period means the sum of:
(a) BBSW for that Interest Period; and
(b) the Drawdown Margin,
or such rate as is otherwise agreed by the Trustee, the Manager and the
Standby Redraw Facility Provider provided that each Rating Agency is given
not less than 3 Business Days prior notice by the Manager of any variation
to the Prescribed Rate and the Prescribed Rate will not be varied if such
variation would result in a reduction in any then current credit rating of
a Security.
"RECEIVER" means a person appointed under or by virtue of the Security
Trust Deed as a receiver or receiver and manager.
"REDRAW AMOUNT" in relation to a Determination Date means the lesser of:
(a) the then un-utilised portion of the Facility Limit; and
(b) the Redraw Shortfall on that Determination Date.
"REDRAW SHORTFALL" in relation to a Determination Date means the amount
(if any) by which the Net Principal for that Determination Date is
insufficient to meet in full the repayment of Seller Advances made during
or prior to the Collection Period just ended which have not previously
been repaid.
"SCHEDULED TERMINATION DATE" means the date which is 364 days after the
date of this Agreement or such later date specified by the Standby Redraw
Facility Provider pursuant to clause 2.3.
"SERIES SUPPLEMENT" means the Series Supplement dated on or about the date
of this Agreement between the Standby Redraw Facility Provider (as a
Seller and the Servicer), Homepath Pty Limited ABN 35 081 986 530, SAS and
the Trustee.
"SERIES TRUST" means the trust known as the Medallion Trust Series [_]
established pursuant to the Master Trust Deed and the Series Supplement.
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"SPECIFIED RATE" means, on any day, the sum of:
(a) BBSW for the Interest Period that includes that day (or if the day is
not within an Interest Period, BBSW for the first Business Day of the
month that includes that day as if that month were an Interest
Period);
(b) the Drawdown Margin; and
(c) [_]% per annum.
"STANDBY REDRAW FACILITY PRINCIPAL" means at any given time, the aggregate
of all Advances made to the Trustee less:
(a) the aggregate of all repayments of Standby Redraw Facility Principal
pursuant to this Agreement; and
(b) the aggregate of all Principal Chargeoffs previously allocated
pursuant to clause 9.1 of the Series Supplement to reduce the then
Standby Redraw Facility Principal which have not been reimbursed
pursuant to clause 9.2 of the Series Supplement.
"TERMINATION DATE" means the earlier of:
(a) the Scheduled Termination Date; and
(b) the date on which the Standby Redraw Facility Provider declares or
appoints the Facility terminated in accordance with this Agreement.
1.2 SERIES SUPPLEMENT AND MASTER TRUST DEED DEFINITIONS
Subject to clause 1.6, unless defined in this Agreement, words and phrases
defined in either or both of the Master Trust Deed and the Series
Supplement have the same meaning in this Agreement. Where there is any
inconsistency in a definition between this Agreement (on the one hand) and
the Master Trust Deed or the Series Supplement (on the other hand), this
Agreement prevails. Where there is any inconsistency in a definition
between the Master Trust Deed and the Series Supplement, the Series
Supplement prevails over the Master Trust Deed in respect of this
Agreement. Subject to clause 1.6, where words or phrases used but not
defined in this Agreement are defined in the Master Trust Deed in relation
to a Series Trust (as defined in the Master Trust Deed) and/or an Other
Trust such words or phrases are to be construed in this Agreement, where
necessary, as being used only in relation to the Series Trust (as defined
in this Agreement) and/or the CBA Trust, as the context requires.
1.3 INTERPRETATION
In this Agreement, unless the contrary intention appears:
(a) headings are for convenience only and do not affect the
interpretation of this Agreement;
(b) a reference to this "AGREEMENT" includes the Background and the
Schedule;
(c) the expression "PERSON" includes an individual, the estate of an
individual, a body politic, a corporation and a statutory or other
authority or association (incorporated or unincorporated);
(d) a reference to a person includes that person's executors,
administrators, successors, substitutes and assigns, including any
person taking by way of novation;
(e) subject to clause 1.6, a reference to any document or agreement is to
such document
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or agreement as amended, novated, supplemented, varied or replaced
from time to time;
(f) a reference to any legislation or to any section or provision of any
legislation includes any statutory modification or re-enactment or
any statutory provision substituted for that legislation and all
ordinances, by-laws, regulations and other statutory instruments
issued under that legislation, section or provision;
(g) words importing the singular include the plural (and vice versa) and
words denoting a given gender include all other genders;
(h) a reference to a clause is a reference to a clause of this Agreement;
(i) the expression "CERTIFIED" means, in respect of a person, certified
in writing by two Authorised Officers of that person or by legal
counsel acting for that person and "CERTIFY" and like expressions
will be construed accordingly;
(j) a reference to "WILFUL DEFAULT" in relation to the Trustee or the
Manager, means, subject to clause 1.3(k), any wilful failure by the
Trustee to comply with, or wilful breach by the Trustee or the
Manager (as the case may be) of, any of its obligations under any
Transaction Document, other than a failure or breach which:
(i) A. arises as a result of a breach of a Transaction Document
by a person other than:
1) the Trustee or the Manager (as the case may be); or
2) any other person referred to in clause 1.3(k); and
B. the performance of the action (the non-performance of
which gave rise to such breach) is a pre-condition to the
Trustee or the Manager (as the case may be) performing the
said obligation;
(ii) is in accordance with a lawful court order or direction or is
required by law; or
(iii) is in accordance with a proper instruction or direction of
Investors given at a meeting convened under any Transaction
Document;
(k) a reference to the "FRAUD", "NEGLIGENCE" or "WILFUL DEFAULT" of the
Trustee means the fraud, negligence or wilful default of the Trustee
and of its officers, employees, agents and any other person where the
Trustee is liable for the acts or omissions of such other person
under the terms of any Transaction Document;
(l) where any word or phrase is given a defined meaning, any other part
of speech or other grammatical form in respect of such word or phrase
has a corresponding meaning;
(m) where any day on which a payment is due to be made or a thing is due
to be done under this Agreement is not a Business Day, that payment
must be made or that thing must be done on the immediately succeeding
Business Day;
(n) a reference to the "CLOSE OF BUSINESS" on any day is a reference to
5.00 pm on that day;
(o) a reference to time is to local time in Sydney; and
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(p) subject to clause 15.2, each party will only be considered to have
knowledge or awareness of, or notice of, a thing or grounds to
believe anything by virtue of the officers of that party (or any
Related Body Corporate of that party) having day to day
responsibility for the administration or management of that party's
(or a Related Body Corporate of that party's) obligations in relation
to the Series Trust 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,
Manager Default, Trustee Default, Servicer Default or Perfection of
Title Event means notice, knowledge or awareness of the occurrence of
the events or circumstances constituting an Event of Default, Manager
Default, Trustee Default, Servicer Default or Perfection of Title
Event (as the case may be).
1.4 TRUSTEE CAPACITY
In this Agreement, except where provided to the contrary:
(a) (REFERENCES TO TRUSTEE): a reference to the Trustee is a reference to
the Trustee in its capacity as trustee of the Series Trust only, and
in no other capacity; and
(b) (REFERENCES TO ASSETS OF THE TRUSTEE): a reference to the
undertaking, assets, business or money of the Trustee is a reference
to the undertaking, assets, business or money of the Trustee in the
capacity referred to in paragraph (a).
1.5 MASTER TRUST DEED AND SERIES SUPPLEMENT
For the purposes of the Master Trust Deed and the Series Supplement:
(a) (TRANSACTION DOCUMENT): this Agreement is a Transaction Document; and
(b) (SUPPORT FACILITY): the Facility made available pursuant to the terms
of this Agreement is a Support Facility.
1.6 INCORPORATED DEFINITIONS AND OTHER TRANSACTION DOCUMENTS AND PROVISIONS
Where in this Agreement a word or expression is defined by reference to
its meaning in another Transaction Document or there is a reference to
another Transaction Document or to a provision of another Transaction
Document, any amendment to the meaning of that word or expression or to
that other Transaction Document or provision (as the case may be) will be
of no effect for the purposes of this Agreement unless and until the
amendment is consented to by the parties to this Agreement.
2. THE FACILITY
2.1 AMOUNT
Subject to this Agreement, the Standby Redraw Facility Provider agrees to
make Advances to the Trustee up to an aggregate principal amount equal to
the Facility Limit.
2.2 PURPOSE
The Manager will direct the Trustee to use, and the Trustee will use, the
proceeds of each Advance under the Facility exclusively for the Approved
Purpose.
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2.3 EXTENSION OF SCHEDULED TERMINATION DATE
(a) (MANAGER TO REQUEST EXTENSION): Not less than 60 days before the then
Scheduled Termination Date, the Manager may deliver a notice in
writing to the Standby Redraw Facility Provider (with a copy to the
Trustee) requesting the Standby Redraw Facility Provider to extend
the Scheduled Termination Date.
(b) (STANDBY REDRAW FACILITY PROVIDER MAY EXTEND): Following receipt by
the Standby Redraw Facility Provider of the notice referred to in
paragraph (a), the Standby Redraw Facility Provider may, in its
absolute discretion, send the Trustee a notice in writing (copied to
the Manager) extending the then Scheduled Termination Date to the new
Scheduled Termination Date specified in the notice (which must not be
more than 364 days after the date of the notice).
2.4 TERMINATION OF THE FACILITY
The Facility will terminate on the Termination Date.
3. CONDITIONS PRECEDENT
3.1 CONDITIONS PRECEDENT TO FIRST ADVANCE
The Standby Redraw Facility Provider is not obliged to make the first
Advance to the Trustee unless the Standby Redraw Facility Provider has
received each of the following, in form and substance acceptable to the
Standby Redraw Facility Provider:
(a) (THIS AGREEMENT): this Agreement duly executed and delivered by the
Trustee and the Manager;
(b) (POWER OF ATTORNEY): a copy of each power of attorney under which
this Agreement has been or will be executed by the Trustee and the
Manager, certified as a true copy by the Trustee and the Manager
respectively;
(c) (AUTHORISED OFFICERS): a certificate setting out in full the name and
specimen signature of each Authorised Officer of the Manager;
(d) (SECURITY TRUST DEED): a copy of the Security Trust Deed executed by
the parties thereto and certified as a true copy by the Manager;
(e) (POOL MORTGAGE INSURANCE POLICY): an executed original counterpart of
the Pool Mortgage Insurance Policy together with a letter from PMI
confirming that it has accepted for insurance under the Pool Mortgage
Insurance Policy the Mortgage Loans referred to in the certificate
attached to the letter; and
(f) (LEGAL OPINION): a legal opinion addressed to the Standby Redraw
Facility Provider from the Trustee's solicitors in form and substance
satisfactory to the Standby Redraw Facility Provider.
3.2 CONDITIONS PRECEDENT TO ALL ADVANCES
The obligation of the Standby Redraw Facility Provider to make each
Advance is subject to the further conditions precedent that:
(a) (REPRESENTATIONS AND WARRANTIES TRUE): the representations and
warranties made or deemed to be made by the Trustee in any
Transaction Document are true and correct as of the date of the
corresponding Drawdown Notice and the relevant Drawdown Date as
though made at that date;
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(b) (NO EVENT OF DEFAULT): no Event of Default is subsisting at the date
of the relevant Drawdown Notice and the relevant Drawdown Date or
will result from the provision or continuation of the Advance; and
(c) (NO NOTICE OF SECURITY INTERESTS): other than in respect of
priorities granted by statute, the Standby Redraw Facility Provider
has not received notice from any person that it claims to have a
Security Interest ranking in priority to or equal with the Security
Interest held by the Standby Redraw Facility Provider under the
Security Trust Deed.
4. DRAWDOWN
4.1 PREPARATION OF DRAWDOWN NOTICES
If on a Determination Date the Manager determines in accordance with the
Series Supplement that a Redraw Shortfall has occurred in respect of the
Collection Period just ended the Manager must:
(a) (PREPARE DRAWDOWN NOTICE): prepare a Drawdown Notice in accordance
with clause 4.3 requesting an Advance on the next Quarterly
Distribution Date; and
(b) (DELIVER DRAWDOWN NOTICE): deliver the Drawdown Notice to the Trustee
no later than the close of business on the Business Day which is not
less than 3 Business Days before the proposed Drawdown Date.
4.2 SERVICE OF DRAWDOWN NOTICES
If the Trustee receives a Drawdown Notice from the Manager pursuant to
clause 4.1, it must:
(a) (SIGN DRAWDOWN NOTICE): sign the Drawdown Notice in accordance with
clause 4.3(b); and
(b) (DELIVER DRAWDOWN NOTICE): deliver the signed Drawdown Notice to the
Standby Redraw Facility Provider by the time specified in clause
4.4(a).
4.3 REQUIREMENTS OF DRAWDOWN NOTICES
A Drawdown Notice must:
(a) (FORM): be in the form of the Schedule (or in such other form as from
time to time agreed amongst the Standby Redraw Facility Provider, the
Manager and the Trustee);
(b) (AUTHORISED OFFICER): be signed by an Authorised Officer of the
Trustee;
(c) (SPECIFY DRAWDOWN DATE): specify the proposed Drawdown Date for the
requested Advance which must be the next Quarterly Distribution Date;
(d) (IRREVOCABLE): be irrevocable;
(e) (REDRAW AMOUNT): specify the Redraw Amount; and
(f) (CALCULATION): provide details of the calculation of the Redraw
Amount.
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4.4 AVAILABILITY OF FACILITY
The Trustee may make a Drawing on any Quarterly Distribution Date during
the Availability Period provided that:
(a) (RECEIPT OF DRAWDOWN NOTICE): the Standby Redraw Facility Provider
has received not later than 11.00 am on the Business Day which is not
less than 2 Business Days before the proposed Drawdown Date (or such
later time as the Standby Redraw Facility Provider may agree), a duly
completed Drawdown Notice; and
(b) (CONDITIONS PRECEDENT): the requirements of clause 3 have been
satisfied or waived in writing by the Standby Redraw Facility
Provider before the Drawdown Notice is given.
4.5 MAKING OF ADVANCES
After receipt of a Drawdown Notice the amount of the Advance requested in
a Drawdown Notice will, subject to clause 4.6 but otherwise without
set-off or deduction on any other account, be deposited by the Standby
Redraw Facility Provider in the Collections Account in immediately
available funds no later than 10.00 am on the Drawdown Date.
4.6 BOOK ENTRY SET-OFF OF ADVANCES AGAINST SELLER ADVANCES
The Standby Redraw Facility Provider may make an Advance on a Drawdown
Date by way of a book entry in its records to the extent that it also
makes a book entry in its records reducing the amount of the outstanding
Seller Advances made by it to be repaid by such Advance on that Drawdown
Date by the relevant amount of such Advance.
5. INTEREST
5.1 INTEREST PERIOD
(a) (DURATION): The duration of the Facility is divided into successive
Interest Periods.
(b) (FIRST INTEREST PERIOD): The first Interest Period commences on (and
includes) the first Drawdown Date and ends on (but excludes) the next
Quarterly Distribution Date.
(c) (SUCCEEDING INTEREST PERIODS): Each succeeding Interest Period
commences on (and includes) a Quarterly Distribution Date and ends on
(but excludes) the next Quarterly Distribution Date.
(d) (LAST INTEREST PERIOD): The last Interest Period ends on (but
excludes) the first Quarterly Distribution Date that:
(i) follows the Termination Date; and
(ii) upon which all moneys the payment or repayment of which form
part of the Obligations are paid or repaid in full to the
Standby Redraw Facility Provider.
5.2 CALCULATION OF INTEREST
Interest on the Standby Redraw Facility Principal accrues from day to day
in respect of each Interest Period at the Prescribed Rate for that
Interest Period on the amount of the Standby Redraw Facility Principal on
that day and based on a 365 day year.
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5.3 PAYMENT OF INTEREST
The Trustee at the direction of the Manager will on each Quarterly
Distribution Date pay to the Standby Redraw Facility Provider so much of
the then accrued interest on the Standby Redraw Facility Principal as is
available for this purpose in accordance with the Series Supplement.
5.4 INTEREST ON UNPAID INTEREST
If any payment by the Trustee on a Quarterly Distribution Date pursuant to
clause 5.3 is insufficient to pay the full amount of the then accrued
interest on the Standby Redraw Facility Principal, such unpaid accrued
interest will in turn accrue interest (as a separate and independent
obligation) until paid at the Prescribed Rate for each succeeding Interest
Period and if not paid on the Quarterly Distribution Date at the end of
each such succeeding Interest Period, will itself bear interest in
accordance with this clause.
5.5 INTEREST ON OVERDUE SUMS
If the Trustee fails to pay any amount due and payable by it under or in
respect of this Agreement at the time and in the manner required under
this Agreement and the Series Supplement, other than as described in
clause 5.4, that amount will bear interest in accordance with this clause.
Such interest is payable on demand and will accrue on such amount from day
to day at the Specified Rate for that day from the date such amount is due
for payment up to the date of actual payment, before and (as a separate
and independent obligation) after judgment and if not paid at the end of a
30 day period will itself bear interest in accordance with this clause.
6. REPAYMENT OF STANDBY REDRAW FACILITY PRINCIPAL
6.1 REPAYMENT OF STANDBY REDRAW FACILITY PRINCIPAL DURING THE AVAILABILITY
PERIOD
The Trustee will on each Quarterly Distribution Date repay so much of the
Standby Redraw Facility Principal on the previous Determination Date as is
available for this purpose in accordance with the Series Supplement.
6.2 RE-DRAWING
Amounts repaid pursuant to clause 6.1 may be redrawn by the Trustee in
accordance with the terms of this Agreement.
6.3 REPAYMENT ON TERMINATION
Notwithstanding clause 6.1, on the Quarterly Distribution Date immediately
following the Termination Date, the Trustee will pay or repay so much of
the aggregate of all Standby Redraw Facility Principal together with
interest accrued thereon and all other money, the payment or repayment of
which forms part of the Obligations, as is available for this purpose in
accordance with the Series Supplement. If all amounts due in accordance
with this clause 6.3 are not paid or repaid in full on the Quarterly
Distribution Date immediately following the Termination Date, on each
succeeding Quarterly Distribution Date the Trustee will pay or repay so
much of such amounts as is available for this purpose in accordance with
the Series Supplement until such amounts are paid or repaid in full.
6.4 PAYMENTS UNDER SECURITY TRUST DEED
Without prejudice to clause 13, the limitation of the Trustee's liability
to make payments under this Agreement will not apply for the purposes of
calculating any amounts payable out of the
10
Assets of the Series Trust to the Standby Redraw Facility Provider
pursuant to the Security Trust Deed.
6.5 PRINCIPAL CHARGEOFFS
A Principal Chargeoff in relation to the Standby Redraw Facility Principal
pursuant to clause 9.1 of the Series Supplement reduces the amount of the
Standby Redraw Facility Principal immediately prior to such Principal
Chargeoff by the amount of the Principal Chargeoff with effect from the
Quarterly Distribution Date following the Determination Date upon which
the Principal Chargeoff was determined.
6.6 PRINCIPAL CHARGEOFF REIMBURSEMENT
A Principal Chargeoff Reimbursement in relation to the Standby Redraw
Facility Principal pursuant to clause 9.2 of the Series Supplement
increases the amount of the Standby Redraw Facility Principal immediately
prior to such Principal Chargeoff Reimbursement with effect from the
Quarterly Distribution Date following the Determination Date upon which
the Principal Chargeoff Reimbursement was determined.
7. PAYMENTS
7.1 TIME ON DUE DATE AND FREE OF SET-OFF & TAXES
All payments to be made by the Trustee under this Agreement will:
(a) (DUE DATE): be made not later than close of business on the due date
for payment and all such payments will be made in the manner and to
such account as the Standby Redraw Facility Provider directs in
writing; and
(b) (SET-OFF): subject to clause 4.6, be made without set-off or
counterclaim and free and clear of and without deduction for or on
account of present or future Taxes, levies, imposts, duties, charges,
fees, deductions, withholdings, restrictions or conditions of any
nature.
7.2 CERTIFICATE
A certificate signed by an Authorised Officer of the Standby Redraw
Facility Provider stating any amount or rate for the purposes of this
Agreement will, in the absence of manifest error on its face, constitute
prima facie evidence of the amount or rate stated therein.
8. ILLEGALITY AND INCREASED COST
8.1 ILLEGALITY
If any change in applicable law, regulation, treaty or official directive
or in the interpretation or administration thereof by any Governmental
Agency charged with the administration thereof makes it, in the reasonable
opinion of counsel to the Standby Redraw Facility Provider evidenced in
writing and addressed to the Trustee, unlawful or impossible for the
Standby Redraw Facility Provider to maintain or give effect to its
obligations under this Agreement, the Standby Redraw Facility Provider may
by written notice to the Trustee (with a copy to the Manager) appoint a
date as the Termination Date which date must not be prior to 30 days (or
such shorter period required by law) after the date of receipt by the
Trustee of written notice from the Standby Redraw Facility Provider
appointing the Termination Date.
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8.2 INCREASED COST
(a) (CHANGE IN LAW): If by reason of any change in law or in its
interpretation or administration or because of compliance with any
request from or requirement of any fiscal, monetary or other
Governmental Agency:
(i) the Standby Redraw Facility Provider incurs a cost as a result
of its having entered into or performing its obligations under
this Agreement or as a result of any Advance being outstanding
hereunder;
(ii) there is any increase in the cost to the Standby Redraw
Facility Provider of funding or maintaining any Advance;
(iii) the amount of principal, interest or other amount payable to
the Standby Redraw Facility Provider or the effective return to
the Standby Redraw Facility Provider under this Agreement is
reduced; or
(iv) the Standby Redraw Facility Provider becomes liable to make any
payment (not being a payment of Tax on its overall net income)
on or calculated by reference to the amount of Advances made
under this Agreement,
then from time to time on notification by the Standby Redraw Facility
Provider (copied to the Manager) the Trustee will on the Quarterly
Distribution Date following such notification and on each succeeding
Quarterly Distribution Date until the Standby Redraw Facility
Provider is paid in full pay to the Standby Redraw Facility Provider
so much of the amounts sufficient to indemnify the Standby Redraw
Facility Provider against such cost, increased cost, reduction or
liability that is available for this purpose in accordance with the
Series Supplement.
(b) (NO DEFENCE): If the Standby Redraw Facility Provider has acted in
good faith it will not be a defence to the Trustee, in the event of
any failure by the Trustee to comply with its payment obligations
under clause 8.2(a), that any such cost, increased cost, reduction or
liability could have been avoided. However, the Standby Redraw
Facility Provider will negotiate in good faith with the Trustee and
the Manager with a view to finding a means by which such cost,
increased cost, reduction or liability may be minimised.
(c) (CERTIFICATE CONCLUSIVE): The Standby Redraw Facility Provider's
certificate as to the amount of, and basis for arriving at, any such
cost, increased cost, reduction or liability is conclusive and
binding on the Trustee in the absence of manifest error on the face
of the certificate.
9. FEES
The Trustee will pay to the Standby Redraw Facility Provider a commitment
fee of [_]% per annum of the then un-utilised portion of the Facility
Limit. The commitment fee will be calculated daily from the date the
Facility becomes available on the basis of a 365 day year and will be paid
quarterly in arrears on each Quarterly Distribution Date in accordance
with the Series Supplement. The amount of the commitment fee may be varied
by agreement between the Trustee, the Manager and the Standby Redraw
Facility Provider provided that each Rating Agency is given not less than
3 Business Days prior notice by the Manager of any variation to the amount
of the commitment fee and the amount of the commitment fee will not be
varied if such variation would result in a reduction, qualification or
withdrawal in any then current credit rating of a Security.
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10. REPRESENTATIONS AND WARRANTIES
10.1 GENERAL REPRESENTATIONS AND WARRANTIES
The Trustee in its capacity as trustee of the Series Trust represents and
warrants to the Standby Redraw Facility Provider that:
(a) (EXECUTION, DELIVERY AND PERFORMANCE): the execution, delivery and
performance of this Agreement and each other Transaction Document in
relation to the Series Trust to which it is a party does not violate
any existing law or regulation or any document or agreement to which
it is a party or which is binding upon it or any of its assets;
(b) (CORPORATE POWER AND AUTHORISATION): the Trustee has the power to
enter into, and to perform its obligations, and has taken all
corporate and other action necessary to authorise the entry into of,
and performance of its obligations under, this Agreement and each
other Transaction Document in relation to the Series Trust and to
which it is a party;
(c) (LEGALLY BINDING OBLIGATION): this Agreement and each of the other
Transaction Documents to which it is a party constitute its valid and
legally binding obligations subject to stamping and any necessary
registration except as such enforceability may be limited by any
applicable bankruptcy, insolvency, reorganisation, moratorium or
trust or other similar laws affecting creditors' rights generally;
and
(d) (NO EVENT OF DEFAULT): to the best of the Trustee's knowledge no
Event of Default or event which with the giving of notice, lapse of
time or other applicable condition would become an Event of Default
has occurred which has not been waived or remedied in accordance with
this Agreement.
10.2 CORPORATE REPRESENTATIONS AND WARRANTIES
The Trustee in its capacity as trustee of the Series Trust represents and
warrants in respect of itself to the Standby Redraw Facility Provider
that:
(a) (DUE INCORPORATION): it is duly incorporated and has the corporate
power to own its own property and to carry on its business as is now
being conducted; and
(b) (EXECUTION, DELIVERY AND PERFORMANCE): the execution, delivery and
performance of this Agreement and each other Transaction Document in
relation to the Series Trust to which it is a party does not violate
its constitution.
10.3 SERIES TRUST REPRESENTATIONS AND WARRANTIES
The Trustee in its capacity as trustee of the Series Trust represents and
warrants to the Standby Redraw Facility Provider in relation to the Series
Trust as follows:
(a) (SERIES TRUST VALIDLY CREATED): the Series Trust has been validly
created and is in existence at the date of this Agreement;
(b) (SOLE TRUSTEE): the Trustee has been validly appointed as trustee of
the Series Trust and is presently the sole trustee of the Series
Trust;
(c) (NO PROCEEDINGS TO REMOVE): no notice has been given to the Trustee
and to the Trustee's knowledge no resolution has been passed or
direction or notice has been given, removing the Trustee as trustee
of the Series Trust;
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(d) (TRUSTEE'S POWER): the Trustee has power under the Master Trust Deed
to enter into the Transaction Documents to which it is a party in its
capacity as trustee of the Series Trust; and
(e) (GOOD TITLE): to the best of its knowledge without due enquiry, the
Trustee is the lawful owner of the Assets of the Series Trust and has
power under the Master Trust Deed to mortgage or charge them in the
manner provided in the Security Trust Deed.
10.4 REPRESENTATIONS AND WARRANTIES REPEATED
Each representation and warranty contained in clauses 10.1, 10.2 and 10.3
will be deemed to be repeated on each Drawdown Date with reference to the
facts and circumstances then subsisting, as if made on each such day.
11. UNDERTAKINGS
11.1 GENERAL
The Trustee undertakes to the Standby Redraw Facility Provider that it
will:
(a) (ACT CONTINUOUSLY): act continuously as trustee of the Series Trust
in accordance with the Master Trust Deed and the Series Supplement
until the Series Trust is terminated or until it has retired or been
removed in accordance with the Master Trust Deed;
(b) (DO ALL THINGS NECESSARY): do everything and take all such actions
which are necessary (including, without limitation, obtaining all
such authorisations and approvals as are appropriate) to ensure that
it is able to exercise all its powers and remedies and perform all
its obligations under this Agreement, other arrangements entered into
by the Trustee pursuant to this Agreement and each Transaction
Document to which it is a party;
(c) (MAINTAIN AUTHORISATIONS): ensure that each authorisation required
for it to maintain its status as trustee of the Series Trust is
obtained and promptly renewed and maintained in full force and
effect; and
(d) (NOT AMEND OR REVOKE): not consent to amend or revoke provisions of
the Master Trust Deed, the Series Supplement or the Security Trust
Deed in respect of payments or the order of priorities of payments to
be made thereunder without the prior written consent of the Standby
Redraw Facility Provider.
11.2 MANAGER'S UNDERTAKINGS AFTER MANAGER EVENT
At any time after a Manager Event occurs the Manager will:
(a) (NOTIFY STANDBY REDRAW FACILITY PROVIDER): immediately notify the
Standby Redraw Facility Provider as soon as it becomes actually aware
of the occurrence of:
(i) any Event of Default, Servicer Default, Trustee Default,
Potential Termination Event, Perfection of Title Event or
Manager Default; or
(ii) any litigation, arbitration, criminal or administrative
proceedings relating to any of the Trustee's property, assets
or revenues that involves a claim against it in excess of A$[ ]
million or that, if decided adversely to it, could have a
material adverse effect on its ability to perform the
Obligations,
14
and in each case advise the Standby Redraw Facility Provider of
what steps it has taken and what steps it proposes to take in
relation to such occurrences; and
(b) (DELIVER MATERIALS): deliver to the Standby Redraw Facility Provider:
(i) as soon as practicable and in any event not later than 120 days
after the close of each of the Series Trust's financial years,
a copy of the audited Accounts of the Series Trust;
(ii) as soon as practicable and in any event not later than 90 days
after the first half of each of the Series Trust's financial
years, a copy of a statement setting out the Assets and
Liabilities of the Series Trust for that half-year;
(iii) as soon as practical and in any event not later than 90 days
after each half of each financial year of the Series Trust, a
copy of the written report prepared by the Auditor in
accordance with clause 21.9 of the Master Trust Deed;
(iv) as and when required by the Standby Redraw Facility Provider, a
certificate executed by two Authorised Officers on behalf of
the Manager stating to the best of the knowledge of the Manager
whether or not an Event of Default, Servicer Default, Trustee
Default, Potential Termination Event, Perfection of Title Event
or Manager Default has occurred and if the same has occurred,
setting out the details of such event and the steps (if any)
taken by the Manager to remedy or cure the same; and
(v) promptly, such further information regarding the Series Trust's
financial condition and business operations within the
knowledge of the Manager as the Standby Redraw Facility
Provider from time to time reasonably requires.
12. EVENTS OF DEFAULT
12.1 EVENTS OF DEFAULT
Each of the following events is an Event of Default whether or not caused
by any reason whatsoever outside the control of the Trustee or any other
person:
(a) (FAILURE TO REPAY OR PAY): the Trustee fails to pay any amount in
accordance with this Agreement within 10 Business Days of the due
date for payment of such amount;
(b) (OTHER BREACH): the Trustee breaches its undertaking in clause
11.1(d); and
(c) (EVENT OF DEFAULT UNDER SECURITY TRUST DEED): an Event of Default (as
defined in the Security Trust Deed in relation to the Series Trust)
occurs and any action is taken by the Security Trustee, pursuant to
clause 10 of the Security Trust Deed, to appoint a Receiver in
respect of the Assets of the Series Trust or to sell and realise the
Assets of the Series Trust or the Security Trustee takes any action
pursuant to clause 11 of the Security Trust Deed.
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12.2 CONSEQUENCES OF EVENT OF DEFAULT
At any time after the occurrence of an Event of Default the Standby Redraw
Facility Provider may, without being obliged to do so and notwithstanding
any waiver of any previous default, by written notice to the Trustee:
(a) (DECLARE ADVANCES DUE): declare the Advances, accrued interest and
all other sums which have accrued due under this Agreement (whether
or not presently payable) to be due, whereupon they will become
immediately due and payable; and/or
(b) (DECLARE FACILITY TERMINATED): declare the Facility terminated in
which case the obligations of the Standby Redraw Facility Provider
under this Agreement will immediately terminate from the date of
receipt by the Trustee of such written notice.
13. TRUSTEE PROVISIONS
13.1 LIMITATION ON TRUSTEE'S LIABILITY
The Trustee enters into this Agreement only in its capacity as trustee of
the Series Trust and in no other capacity. A liability incurred by the
Trustee acting in its capacity as trustee of the Series Trust arising
under or in connection with this Agreement is limited to and can be
enforced against the Trustee only to the extent to which it can be
satisfied out of the Assets of the Series Trust out of which the Trustee
is actually indemnified for the liability. This limitation of the
Trustee's liability applies despite any other provision of this Agreement
(other than clause 13.3) and extends to all liabilities and obligations of
the Trustee in any way connected with any representation, warranty,
conduct, omission, agreement or transaction related to this Agreement.
13.2 CLAIMS AGAINST TRUSTEE
The parties other than the Trustee may not xxx the Trustee in respect of
any liabilities incurred by the Trustee acting in its capacity as trustee
of the Series Trust in any capacity other than as trustee of the Series
Trust including seeking the appointment of a receiver (except in relation
to the Assets of the Series Trust) a liquidator, an administrator or any
similar person to the Trustee, or prove in any liquidation, administration
or similar arrangements of or affecting the Trustee (except in relation to
the Assets of the Series Trust).
13.3 BREACH OF TRUST
The provisions of this clause 13 will not apply to any obligation or
liability of the Trustee to the extent that it is not satisfied because
under the Master Trust Deed, the Series Supplement, any other Transaction
Document in relation to the Series Trust or by operation of law there is a
reduction in the extent of the Trustee's indemnification out of the Assets
of the Series Trust as a result of the Trustee's fraud, negligence or
wilful default.
13.4 ACTS OR OMISSIONS
It is acknowledged that the Relevant Parties are responsible under the
Transaction Documents for performing a variety of obligations relating to
the Series Trust. No act or omission of the Trustee (including any related
failure to satisfy its obligations or any breach of representations or
warranties under this Agreement) will be considered fraud, negligence or
wilful default of the Trustee for the purpose of clause 13.3 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 appointed by the Trustee under
any Transaction Document (other than a person whose acts or omissions the
16
Trustee is liable for in accordance with any Transaction Document) to
fulfil its obligations in relation to the Series Trust or by any other act
or omission of a Relevant Party or any other such person.
13.5 NO AUTHORITY
No attorney or agent appointed in accordance with this Agreement has
authority to act on behalf of the Trustee in a way which exposes the
Trustee to any personal liability and no act or omission of any such
person will be considered fraudulent, negligent or a wilful default of the
Trustee for the purposes of clause 13.3.
13.6 NO OBLIGATION
The Trustee is not obliged to enter into any commitment or obligation
under this Agreement or any Transaction Document (including incur any
further liability) unless the Trustee's liability is limited in a manner
which is consistent with this clause 13 or otherwise in a manner
satisfactory to the Trustee in its absolute discretion.
14. ASSIGNMENT
14.1 ASSIGNMENT BY TRUSTEE
The Trustee will not assign or otherwise transfer the benefit of this
Agreement or any of its rights, duties or obligations under this Agreement
except to a Substitute Trustee acceptable to the Standby Redraw Facility
Provider (whose consent is not to be unreasonably withheld).
14.2 ASSIGNMENT BY STANDBY REDRAW FACILITY PROVIDER
The Standby Redraw Facility Provider may at any time assign or otherwise
transfer all or any part of the benefit of this Agreement or any of its
rights, duties and obligations under this Agreement to another Bank or
financial institution. The Standby Redraw Facility Provider may disclose
to a proposed assignee or transferee information in the possession of the
Standby Redraw Facility Provider relating to the Trustee and the Manager.
An assignment or transfer by the Standby Redraw Facility Provider pursuant
to this clause 14.2 shall not be of any effect until the Standby Redraw
Facility Provider has notified the Trustee in writing of the assignment or
transfer, as the case may be.
15. NOTICES
15.1 METHOD OF DELIVERY
Subject to this clause, any notice, request, certificate, approval,
demand, consent or other communication to be given under this Agreement
must:
(a) (IN WRITING AND SIGNED BY AN AUTHORISED OFFICER): except in the case
of communication by email, be in writing and signed by 2 Authorised
Officers of the party giving the same; and
(b) (DELIVERY): be:
(i) left at the address of the addressee;
(ii) sent by prepaid ordinary post to the address of the addressee;
(iii) sent by facsimile to the facsimile number of the addressee; or
17
(iv) sent by email by an Authorised Officer of the party giving the
same in accordance with the addressee's email address,
notified by that addressee from time to time to the other parties to
this Agreement as its address for service pursuant to this Agreement.
15.2 DEEMED RECEIPT
A notice, request, certificate, demand, consent or other communication
under this Agreement is deemed to have been received:
(a) (DELIVERY): where delivered in person, upon receipt;
(b) (POST): where sent by post within Australia, on the 3rd day after
posting, and where sent by post to, from or outside Australia, on the
7th day after posting; and
(c) (FAX): where sent by facsimile, on production by the dispatching
facsimile machine of a transmission report which indicates that the
facsimile was sent in its entirety to the facsimile number of the
recipient; and
(d) (EMAIL): where sent by email, on the date the email is received.
However, if the time of deemed receipt of any notice is not before 5.30 pm
on a Business Day at the address of the recipient it is deemed to have
been received at the commencement of business on the next Business Day.
15.3 EMAIL
A notice, request, certificate, approval, demand, consent or other
communication to be given under this Agreement may only be given by email
where the recipient has separately agreed that that communication or
communications of that type, may be given by email.
16. INDEMNITY
16.1 INDEMNITY ON DEMAND
Subject to clause 13, the Trustee will on demand indemnify the Standby
Redraw Facility Provider against any loss, cost or expenses which the
Standby Redraw Facility Provider may sustain or incur as a consequence of:
(a) (OVERDUE SUMS): any sum payable by the Trustee under this Agreement
not being paid when due;
(b) (EVENT OF DEFAULT): the occurrence of any Event of Default;
(c) (FAILURE TO PROVIDE ADVANCE): an Advance requested in a Drawdown
Notice not being provided for any reason including failure to fulfil
any condition precedent but excluding any matter within the control
of the Standby Redraw Facility Provider; or
(d) (PAYMENT OF PRINCIPAL): the Standby Redraw Facility Provider
receiving payments of principal other than on the Quarterly
Distribution Date immediately following the last day of the relevant
Interest Period for any reason.
16.2 LOSSES ON LIQUIDATION OR RE-EMPLOYMENT OF DEPOSITS
The losses, costs or expenses referred to in clause 16.1 will include the
amount determined in good faith by the Standby Redraw Facility Provider as
being any loss (other than an amount
18
for loss of profit other than loss of margin) including:
(a) (LIQUIDATION AND RE-EMPLOYMENT): loss of margin, cost or expense
incurred by reason of the liquidation or re-employment of deposits or
other funds acquired or contracted for by the Standby Redraw Facility
Provider to fund or maintain any such Advance or amount; and
(b) (OTHER ARRANGEMENTS): losses, costs, damages, charges or expenses
incurred by the Standby Redraw Facility Provider in relation to the
variation, termination or making of any other arrangements in
relation to any arrangement ancillary or related to this Agreement
including, without limitation, any swap or derivative agreement
entered into by the Standby Redraw Facility Provider in connection
with or in order to fund any Advances.
16.3 PAYMENT ON QUARTERLY DISTRIBUTION DATE
Any payments to be made by the Trustee pursuant to this clause 16 will
only be made on the Quarterly Distribution Date following demand by the
Standby Redraw Facility Provider and on each succeeding Quarterly
Distribution Date until the Standby Redraw Facility Provider is paid in
full by payment of so much of the amount sufficient to indemnify the
Standby Redraw Facility Provider as is available for this purpose in
accordance with the Series Supplement.
17. MISCELLANEOUS
17.1 STAMP DUTIES
(a) (TRUSTEE MUST PAY): The Trustee will pay all stamp, loan transaction,
registration and similar Taxes including fines and penalties (except
such fines and penalties incurred through the act, neglect or
omission of the Standby Redraw Facility Provider after the Standby
Redraw Facility Provider has requested and been put in funds to pay
such Taxes), financial institutions duty and debits tax which may be
payable or required to be paid by any appropriate authority or
determined to be payable in connection with the execution, delivery,
performance or enforcement of this Agreement.
(b) (TRUSTEE MUST INDEMNIFY): Subject to clause 13, the Trustee will
indemnify and keep indemnified the Standby Redraw Facility Provider
against any loss or liability incurred or suffered by it as a result
of the delay or failure by the Trustee to pay such Taxes.
17.2 WAIVER
A failure to exercise or enforce or a delay in exercising or enforcing or
the partial exercise or enforcement of any right, remedy, power or
privilege under this Agreement by the Standby Redraw Facility Provider
will not in any way preclude or operate as a waiver of any further
exercise or enforcement of such right, remedy, power or privilege or the
exercise or enforcement of any other right, remedy, power or privilege
under this Agreement or provided by law.
17.3 WRITTEN WAIVER, CONSENT AND APPROVAL
Any waiver, consent or approval given by the Standby Redraw Facility
Provider under this Agreement will only be effective and will only bind
the Standby Redraw Facility Provider if it is given in writing, or given
verbally and subsequently confirmed in writing, and executed by the
Standby Redraw Facility Provider or on its behalf by two Authorised
Officers of the Standby Redraw Facility Provider.
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17.4 SEVERABILITY
Any provision of this Agreement which is illegal, void or unenforceable in
any jurisdiction is ineffective in such jurisdiction to the extent only of
such illegality, voidness or unenforceability without invalidating the
remaining provisions of this Agreement or affecting the validity or
enforceability of the provisions in any other jurisdiction.
17.5 SURVIVAL OF INDEMNITIES
The indemnities contained in this Agreement are continuing obligations of
the Trustee, separate and independent from the other obligations of the
Trustee and will survive the termination of this Agreement.
17.6 SUCCESSORS AND ASSIGNS
This Agreement is binding upon and enures to the benefit of the parties to
this Agreement and their respective successors and permitted assigns.
17.7 MORATORIUM LEGISLATION
To the fullest extent permitted by law, the provisions of all statutes
whether existing now or in the future operating directly or indirectly:
(a) (TO AFFECT OBLIGATIONS): to lessen or otherwise to vary or affect in
favour of the Trustee any obligation under this Agreement; or
(b) (TO AFFECT RIGHTS): to delay or otherwise prevent or prejudicially
affect the exercise of any rights or remedies conferred on the
Standby Redraw Facility Provider under this Agreement,
are hereby expressly waived, negatived and excluded.
17.8 AMENDMENTS
The parties to this Agreement may only amend this Agreement in accordance
with clause 33.1(b) of the Series Supplement.
17.9 GOVERNING LAW
This Agreement is governed by and construed in accordance with the laws of
the Australian Capital Territory.
17.10 JURISDICTION
Each of the parties irrevocably and unconditionally:
(a) (SUBMISSION TO JURISDICTION): submits to the non-exclusive
jurisdiction of the courts of the Australian Capital Territory;
(b) (WAIVER OF INCONVENIENT FORUM): waives any objection it may now or in
the future have to the bringing of proceedings in those courts and
any claim that any proceedings have been brought in an inconvenient
forum; and
(c) (SERVICE OF NOTICE): agrees, without preventing any other mode of
service permitted by law, that any document required to be served in
any proceedings may be served in the manner in which notices and
other written communications may be given under clause 15.
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17.11 COUNTERPARTS
This Agreement may be executed in a number of counterparts and all such
counterparts taken together will constitute one and the same instrument.
17.12 CONTRA PROFERENTEM
Each provision of this Agreement will be interpreted without disadvantage
to the party who (or whose representative) drafted that provision.
17.13 KNOW YOUR CUSTOMER
Subject to any confidentiality, privacy or general trust law obligations
owed by Perpetual Trustee Company Limited to Noteholders and any
applicable confidentiality or privacy laws, each party ("INFORMATION
PROVIDER") agrees to provide any information and documents reasonably
required by another party for that other party 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. Any party may decline to perform
any obligation under the Transaction Documents to the extent that it forms
the view, in its reasonable opinion, that notwithstanding that it has
taken all reasonable steps to comply with such anti-money laundering or
counter-terrorism financing laws, it is required to decline to perform
those obligations under any such laws.
17.14 COMPLIANCE WITH REGULATION AB
The Standby Redraw Facility Provider acknowledges and agrees that to the
extent it agrees with the Manager that the Standby Redraw Facility
Provider is "participating in the servicing function" in relation to the
Series Trust within the meaning of Item 1122 of Regulation AB, clauses
16.31(b) and (d) of the Series Supplement will apply to this Agreement as
if references to "the Servicer" in those clauses were references to the
Standby Redraw Facility Provider and the definition of "Subcontractor" in
clause 1.1 of the Series Supplement will be construed accordingly.
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SCHEDULE
DRAWDOWN NOTICE
To: Commonwealth Bank of Australia ABN 48 123 123 124
[Address]
Attention: Head of Securitisation
From: Perpetual Trustee Company Limited ABN 42 000 001 007
[Date]
In our capacity as trustee of the Series Trust, we hereby irrevocably request
you to make us an Advance on the Drawdown Date specified below for an amount
equal to the Redraw Amount specified below in accordance with clause 4 of the
Standby Redraw Facility Agreement dated [_______________] between ourselves,
Commonwealth Bank of Australia and Securitisation Advisory Services Pty. Limited
ABN 88 064 133 946, as amended, novated or supplemented from time to time (the
"STANDBY REDRAW FACILITY AGREEMENT"):
(a) Drawdown Date [________]
(b) Redraw Amount A$[______]
(c) Details of the calculation of the Redraw Amount [________]
Words used and not otherwise defined herein have the same meaning as in the
Standby Redraw Facility Agreement.
SIGNED for and on behalf of PERPETUAL
TRUSTEE COMPANY LIMITED ABN 42 000
001 007, as trustee of the Medallion
Trust Series [___] by:
-------------------------------------
(Authorised Officer)
-------------------------------------
(Name)
-------------------------------------
(Title)
22
EXECUTED as an agreement.
SIGNED for and on behalf of
COMMONWEALTH BANK OF AUSTRALIA
ABN 48 123 123 124
by ----------------------------------------
its Attorney under a Signature of Attorney
Power of Attorney dated and who
declares that he or she has not
received any notice of the revocation
of such Power of Attorney, in the
presence of:
------------------------------------- ----------------------------------------
Signature of Witness Name of Attorney in full
-------------------------------------
Name of Witness in full
SIGNED for and on behalf of PERPETUAL
TRUSTEE COMPANY LIMITED
ABN 42 000 001 007
by
its Attorney under a Power of ----------------------------------------
Attorney dated and who declares that Signature of Attorney
he or she has not received any notice
of the revocation of such Power of
Attorney, in the presence of:
------------------------------------- ----------------------------------------
Signature of Witness Name of Attorney in full
-------------------------------------
Name of Witness in full
23
SIGNED SEALED AND DELIVERED for and
on behalf of SECURITISATION ADVISORY
SERVICES PTY LIMITED
ABN 88 064 133 946
by
its Attorney under a Power of ----------------------------------------
Attorney dated and who declares that Signature of Attorney
he or she has not received any notice
of the revocation of such Power of
Attorney, in the presence of:
------------------------------------- ----------------------------------------
Signature of Witness Name of Attorney in full
-------------------------------------
Name of Witness in full
24
