TOP-UP FUNDING FACILITY
AGREEMENT FOR THE ISSUE AND
REPAYMENT OF NOTES - SMHL GLOBAL
FUND NO. 7
PERPETUAL TRUSTEES AUSTRALIA LIMITED
ABN 86 000 000 000
and
ME PORTFOLIO MANAGEMENT LIMITED
ABN 79 005 964 134
[FREEHILLS LOGO]
XXX Xxxxxx Xxxxxx Xxxxx Xxxxxx Xxx Xxxxx Xxxxx
0000 Xxxxxxxxx Telephone x00 0 0000 0000
Facsimile x00 0 0000 0000 xxx.xxxxxxxxx.xxx DX
000 Xxxxxx
XXXXXX XXXXXXXXX PERTH BRISBANE HANOI HO CHI
MINH CITY SINGAPORE Correspondent Offices
JAKARTA KUALA LUMPUR
Reference PJSR:FW:25E
Top-Up Funding Facility Agreement - SMHL Global Fund No. 7
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TABLE OF CONTENTS
Clause Page
DEFINITIONS AND INTERPRETATION 2
Definitions 2
1.2 Interpretation 5
1.3 Business Day 7
1.4 Transaction Document 7
2 THE NOTES 7
2.1 Application for and Issue of Notes 7
2.2 Acknowledgment of Indebtedness 7
2.3 Obligations under Notes 7
2.4 Ownership of Notes 8
2.5 Register 8
3 TOP-UP LOAN 8
3.1 Purpose 8
3.2 Suspension of the Facility 8
4 FUNDING PROCEDURES 8
4.1 Delivery of Funding Notice 8
4.2 Requirements for a Funding Notice 9
4.3 Copy of the Funding Notice 9
4.4 Irrevocability of Funding Notice 9
4.5 Notification of Funding Rate 9
5 LOAN FACILITY 9
5.1 Provision of Funding Portions 9
5.2 Repayment 9
5.3 Repayment of Outstanding Moneys 10
5.4 Interest 10
5.5 Order of Repayment 11
6 PAYMENTS 11
6.1 Manner of payments 11
6.2 Payments on a Business Day 11
6.3 Appropriation of payments 11
6.4 Payments in gross 12
6.5 Taxation deduction procedures 12
6.6 Amounts payable on demand 12
7 REPRESENTATIONS AND WARRANTIES 12
7.1 By the Issuer 12
7.2 By the SF Manager 13
7.3 Survival and repetition of representations and warranties 14
7.4 Reliance by the Note Holder and OF Manager 14
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8 UNDERTAKINGS 15
8.1 Term of undertakings 15
8.2 Compliance with Covenants 15
8.3 Notify Events of Default 15
9 EVENTS OF DEFAULT 15
9.1 Effect of Event of Default 15
9.2 Issuer to continue to perform 15
9.3 Enforcement 16
10 INCREASED COSTS, ILLEGALITY AND YIELD PROTECTION 16
10.1 Increased costs 16
10.2 Illegality 17
11 TRUSTEE LIMITATION OF LIABILITY PROTECTION 17
11.1 Limitation of Liability - Issuer 17
11.2 Limitation of Liability - Note Holder 18
11.3 Wilful Default of the Issuer and the Note Holder 19
12 INDEMNITIES 20
12.1 General indemnity 20
12.2 Continuing indemnities and evidence of loss 21
12.3 Funds available for indemnity 21
12.4 Negligence, wilful default or breach of law 21
12.5 Notification from Note Holder or OF Manager 21
13 TAX, COSTS AND EXPENSES 22
13.1 Tax 22
13.2 Costs and expenses 22
13.3 Goods and services tax 23
14 INTEREST ON OVERDUE AMOUNTS 23
14.1 Payment of interest 23
14.2 Accrual of interest 23
14.3 Rate of interest 24
15 ASSIGNMENT 24
15.1 Assignment by Transaction Party 24
15.2 Assignment by Note Holder and OF Manager 24
15.3 Assist transfer or assignment 24
15.4 Participation permitted 24
15.5 Lending Office 24
15.6 Disclosure 24
15.7 No increase in costs 25
16 GENERAL 25
16.1 Confidential information 25
16.2 Performance by Note Holder of obligations 25
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16.3 Transaction Party to bear cost 25
16.4 Notices 25
16.5 Governing law and jurisdiction 27
16.6 Prohibition and enforceability 27
16.7 Waivers 27
16.8 Variation 28
16.9 Cumulative rights 28
16.10 Attorneys 28
16.11 Binding Obligations 28
16.12 Winding up of Securitisation Fund 28
16.13 Termination clause 28
16.14 Counterparts 28
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THIS TOP-UP FUNDING FACILITY AGREEMENT
is made on 2004 between the following parties:
1. PERPETUAL TRUSTEES AUSTRALIA LIMITED
ABN 86 000 000 000
in its capacity as trustee of the Securitisation Fund
(as hereinafter defined) of Xxxxx 0, 00 Xxxxxx Xxxxxx,
Xxxxxx, Xxx Xxxxx Xxxxx
(ISSUER)
2. PERPETUAL TRUSTEES AUSTRALIA LIMITED
ABN 86 000 000 000
in its capacity as trustee of the Origination Fund (as
hereinafter defined) of Xxxxx 0, 00 Xxxxxx Xxxxxx,
Xxxxxx, Xxx Xxxxx Xxxxx
(NOTE HOLDER)
3. ME PORTFOLIO MANAGEMENT LIMITED
ABN 79 005 964 134
in its capacity as manager of the Securitisation Fund
of Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx
(XX MANAGER)
4. ME PORTFOLIO MANAGEMENT LIMITED
ABN 79 005 964 134
in its capacity as manager of the Origination Fund
of Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx
(OF MANAGER)
RECITALS
A. The Issuer is the trustee, and the SF Manager is the
manager, of the Securitisation Fund.
B. The Note Holder is the trustee, and the OF Manager is
the manager, of the Origination Fund.
C. The SF Manager has requested the OF Manager to direct
the Note Holder to make available a loan facility to
the Issuer under which the Issuer will issue Notes to
the Note Holder and the Note Holder will purchase
Notes from the Issuer.
D. The Note Holder and the OF Manager have agreed to make
available a facility on the terms and conditions of
this agreement and have agreed with the SF Manager and
the Issuer that the terms and conditions of the issue
and repayment of any such Notes are those contained in
this agreement.
THE PARTIES AGREE
in consideration of, among other things, the mutual promises contained
in this agreement:
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DEFINITIONS AND INTERPRETATION
DEFINITIONS
In this agreement:
ATTORNEY means an attorney appointed under a Material Document;
BASE RATE means in respect of a Funding Portion and a Payment Period:
(a) the rate percent per annum determined by the OF Manager by taking
the rates quoted on the page entitled "BBSW" on the Reuters
Monitor System at or about 10.10am (Melbourne time) on the
Funding Date by each Reference Bank (provided that at least 4
Reference Banks are quoting) as being its mean buying and selling
rate for a bank accepted Xxxx having a tenor equal to 90 days
eliminating one of the highest and one of the lowest mean rates,
and then calculating the average of the remaining mean rates and
then (if necessary) rounding up the resultant figure to four
decimal places; or
(b) if in respect of any Funding Date the Base Rate cannot be
determined because:
(1) less than 4 Reference Banks have quoted their relevant
rates; or
(2) the Payment Period does not equal a tenor in relation to
which at least 4 Reference Banks have quoted their relevant
rates,
on the page entitled "BBSW" on the Reuters Monitor System on the
Funding Date, the rate percent per annum calculated by the OF
Manager in accordance with paragraph (a) of this definition but
by taking the buying and selling rates otherwise quoted by 4 of
the Reference Banks on application by the OF Manager, for bank
accepted Bills of the same tenor and a face value amount of
A$1,000,000 each; or
(c) if in respect of any Funding Date the Base Rate cannot be
determined in accordance with paragraphs (a) or (b) of this
definition, the rate percent per annum determined by the OF
Manager in good faith to be the rate most nearly approximating
the rate that would otherwise have been calculated by the OF
Manager in accordance with paragraph (a) of this definition
having regard to comparable indices then available in the then
current xxxx market;
XXXX means a xxxx of exchange as defined in the Bills of Exchange Act
1909 (Cth), but does not include a cheque;
BUSINESS DAY means a day on which banks are open for business in
Melbourne and Sydney excluding a Saturday, Sunday or public holiday;
CLASS A NOTE has the same meaning as in the Supplementary Bond Terms;
CLASS B NOTE has the same meaning as in the Supplementary Bond Terms;
CONDITIONS means the terms and conditions as set out in schedule 2;
DESIGNATED RATING AGENCY has the meaning given to it in the Master
Trust Deed;
DOLLARS, A$ and $ means the lawful currency of the Commonwealth of
Australia;
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EVENT OF DEFAULT means an Event of Default as defined in the Security
Trust Deed;
EXCLUDED TAX means any Tax imposed by any jurisdiction on the net
income of the Note Holder;
FACILITY means the top-up funding facility made available by the Note
Holder to the Issuer under this agreement (by purchase of Notes);
FUNDING DATE means the date on which a Note will be issued (as
stipulated in the Funding Notice) and the date on which a Funding
Portion is, or is to be, advanced or regarded as advanced to the
Issuer under this agreement;
FUNDING NOTICE means a notice given, or to be given, under clauses 4.1
and 4.2;
FUNDING PORTION means in relation to any Note, the principal amount of
that Note to be provided or outstanding at that time (as the case may
be);
FUNDING RATE means for any Payment Period the rate per cent per annum
which is the aggregate of the Base Rate for that Payment Period and
the Margin;
GOVERNMENTAL AGENCY means any government or any governmental,
semi-governmental, administrative, fiscal or judicial body,
department, commission, authority, tribunal, agency or entity;
GST has the same meaning as in the A New Tax System (Goods and
Services Tax) Xxx 0000;
LENDING OFFICE means the office of the Note Holder set out on page 1
of this agreement or such other office as notified by the Note Holder
under this agreement;
LOAN has the meaning given to it under the Master Trust Deed;
LOAN REDRAW FACILITY has the meaning given to it under the
Supplementary Bond Terms;
MARGIN means that percentage notified by the OF Manager to the SF
Manager on or about the issue of a Note as the margin applicable to
that Note;
MASTER TRUST DEED means the Master Trust Deed dated 4 July 1994 made
between Perpetual Trustees Australia Limited and ME Portfolio
Management Limited and providing for the establishment of a series of
separate trusts known collectively as the Superannuation Members' Home
Loans Trusts, as amended and restated from time to time;
MATERIAL DOCUMENTS means:
(a) this agreement (including each Note); and
(b) the Security Trust Deed; and
(c) the Supplementary Bond Terms;
MORTGAGE has the meaning given to it under the Master Trust Deed;
NOTE means a note issued under clause 2;
NOTE HOLDER means Perpetual Trustees Australia 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;
OFFICER means:
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(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 "head" or a person performing the functions of
any of them; and
(b) in relation to the SF Manager and OF Manager, a director or a
secretary, or a person notified to be an authorised officer of
the relevant party;
ORIGINATION FUND means Superannuation Members' Home Loans Origination
Fund No. 3;
OUTSTANDING MONEYS means all debts and monetary liabilities of the
Issuer to the Note Holder under or in relation to any Material
Document, irrespective of whether the debts or liabilities:
(a) are present or future;
(b) are actual, prospective, contingent or otherwise;
(c) are at any time ascertained or unascertained;
(d) are owed or incurred by or on account of the Issuer alone, or
severally or jointly with any other person;
(e) are owed to or incurred for the account of the Note Holder alone,
or severally or jointly with any other person;
(f) are owed or incurred as principal, interest, fees, charges,
taxes, duties or other imposts, damages (whether for breach of
contract or tort or incurred on any other ground), losses, costs
or expenses, or on any other account; or
(g) comprise any combination of the above;
OVERDUE RATE means on any date the rate percent per annum which is the
aggregate of 2% per annum and the Funding Rate;
PAYMENT DATE has the meaning given to it under the Supplementary Bond
Terms;
PAYMENT PERIOD means the period from and including the last Payment
Date to but excluding the next Payment Date except that the first
Payment Period will commence on the relevant Funding Date and the last
Payment Period will end on the Termination Date;
POWER means any right, power, authority, discretion or remedy
conferred on the Note Holder or OF Manager, or a Receiver or an
Attorney by any Transaction Document or any applicable law;
PRINCIPAL OUTSTANDING means at any time the aggregate principal amount
of all outstanding Funding Portions at that time;
REFERENCE BANK means any one of Commonwealth Bank of Australia,
Westpac Banking Corporation, National Australia Bank Limited and
Australia and New Zealand Banking Group Limited;
REGISTER means the register of Note Holders maintained by the Issuer;
SAME DAY FUNDS means bank cheque or other immediately available funds;
SECURED CREDITORS has the meaning given to it in the Security Trust
Deed;
SECURITISATION FUND means the Securitisation Fund constituted under
the Master Trust Deed known as SMHL Global Fund No. 7;
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SECURITY TRUST DEED means the deed in respect of the Securitisation
Fund between the Issuer, the SF Manager and Perpetual Trustee Company
Limited ABN 42 000 001 007 (as security trustee) and the Bank of New
York (as note trustee);
SUPPLEMENTARY BOND TERMS means the Supplementary Bond Terms Notice in
respect of the Securitisation Fund and providing the terms of issue of
Class A Notes and Class B Notes;
TAX means:
(a) any tax (including GST), levy, charge, impost, duty, fee,
deduction, compulsory loan or withholding; or
(b) any income, stamp or transaction duty, tax or charge,
which is assessed, levied, imposed or collected by any Governmental
Agency and includes, but is not limited to, any interest, fine,
penalty, charge, fee or other amount imposed on or in respect of any
of the above;
TERMINATION DATE means the day which is 1 Business Day prior to the
Final Maturity Date as defined in the Supplementary Bond Terms;
TOP-UP LOAN means, in relation to a Loan, any additional amount
advanced under the Loan (other than under a Loan Redraw Facility) and
secured by the Mortgage securing the Loan.
TRANSACTION DOCUMENT has the meaning given to it in the Master Trust
Deed and includes this agreement and any document or agreement entered
into or given under it (including Notes);
TRANSACTION PARTY means:
(a) the Issuer; or
(b) the SF Manager.
1.2 INTERPRETATION
In this agreement, headings and boldings are for convenience only and
do not affect the interpretation of this agreement and, unless the
context otherwise requires:
(a) words importing the singular include the plural and vice versa;
(b) words importing a gender include any gender;
(c) other parts of speech and grammatical forms of a word or phrase
defined in this agreement have a corresponding meaning;
(d) an expression importing a natural person includes any company,
partnership, joint venture, association, corporation or other
body corporate and any Governmental Agency;
(e) a reference to any thing (including, but not limited to, any
right) includes a part of that thing;
(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;
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(g) a reference to a statute, regulation, proclamation, ordinance or
by-law includes all statutes, regulations, proclamations,
ordinances or by-laws amending, consolidating or replacing it,
and a reference to a statute includes all regulations,
proclamations, ordinances and by-laws issued under that statute;
(h) a reference to a document includes all amendments or supplements
to, or replacements or novations of, that document;
(i) a reference to liquidation includes appointment of an
administrator, compromise, arrangement, merger, amalgamation,
reconstruction, winding up, dissolution, assignment for the
benefit of creditors, scheme, composition or arrangement with
creditors, insolvency, bankruptcy, or a similar procedure or,
where applicable, changes in the constitution of any partnership
or person or death;
(j) a reference to a party to any document includes that party's
successors and permitted assigns;
(k) a reference to an agreement other than this agreement includes an
undertaking, deed, agreement or legally enforceable arrangement
or understanding whether or not in writing;
(l) a reference to an asset includes all property of any nature,
including, but not limited to, a business, and all rights,
revenues and benefits;
(m) a reference to a document includes any agreement in writing, or
any certificate, notice, instrument or other document of any
kind;
(n) no provision of this agreement will be construed adversely to a
party solely on the ground that the party was responsible for the
preparation of this agreement or that provision;
(o) a reference to the drawing, accepting, endorsing or other dealing
with or of a Xxxx refers to a drawing, accepting, endorsing or
dealing within the meaning of the Bills of Exchange Xxx 0000;
(p) a reference to a body, other than a party to this agreement
(including, without limitation, an institute, association or
authority), whether statutory or not:
(1) which ceases to exist; or
(2) whose powers or functions are transferred to another body,
is a reference to the body which replaces it or which
substantially succeeds to its powers or functions; and
(q) the Issuer or the Note Holder will only be considered to have
knowledge or awareness of, or notice of, a thing, or grounds to
believe any thing, by virtue of the officers of the Issuer or the
Note Holder having day to day responsibility for the
administration of the Origination Fund or the Securitisation Fund
(as the case may be) having actual knowledge, actual 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
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circumstances constituting an Event of Default and that those
events or circumstances constitute an Event of Default.
1.3 BUSINESS DAY
Unless otherwise stipulated in this agreement, where the day on or by
which any thing is to be done is not a Business Day, that thing must
be done on or by the succeeding Business Day.
1.4 TRANSACTION DOCUMENT
The parties agree that this agreement and any document or agreement
entered into or given under it (including a Note) is a "Transaction
Document" for the purposes of the Master Trust Deed.
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2 THE NOTES
2.1 APPLICATION FOR AND ISSUE OF NOTES
(a) The SF Manager may direct that the Issuer issues a Note to the
Note Holder by:
(1) directing a Note be issued from the Securitisation Fund;
(2) specifying the principal amount of the Note required;
(3) specifying the proposed date and time of issue of the Note;
and
(4) providing to the Note Holder and the OF Manager a Funding
Notice (and a copy to the Issuer) pursuant to clause 4.
(b) If the SF Manager has directed that the Issuer issues a Note in
accordance with clause 2.1(a), the Note Holder must subscribe for
the Note as directed by the SF Manager, and the Issuer must, on
the terms of this agreement, issue the Note to the Note Holder in
consideration for the principal amount provided that the OF
Manager and Note Holder have complied with clause 5.1.
(c) The parties agree that the terms and conditions contained in this
agreement, the Supplementary Bond Terms and the Security Trust
Deed govern the issue and repayment of the Notes.
2.2 ACKNOWLEDGMENT OF INDEBTEDNESS
The Issuer acknowledges its indebtedness to the Note Holder in respect
of each Note issued under this agreement.
2.3 OBLIGATIONS UNDER NOTES
(a) The obligations of the Issuer under the Notes are constituted by,
and specified in, this agreement and in the Conditions.
(b) Each Note is a separate debt of the Issuer.
(c) The entitlement of any person to a Note is determined by
registration as a Note Holder of that Note.
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(d) The making of, or giving effect to, a manifest error in an
inscription in the Register will not avoid the creation or
transfer of a Note.
2.4 OWNERSHIP OF NOTES
(a) A Note may be transferred by the Note Holder to any person in
accordance with this agreement.
(b) The person whose name is registered as the Note Holder of a Note
in the Register will be, and will be treated by the Issuer as,
the absolute owner of the Note.
2.5 REGISTER
The Issuer must:
(a) establish and maintain the Register; (b) enter in the Register in
respect of each Note:
(1) the principal amount and principal outstanding in respect of
each Note;
(2) its date of issue and date of redemption and cancellation;
and
(3) the date on which any person becomes, or ceases to be, a
Note Holder.
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3 TOP-UP LOAN
3.1 PURPOSE
The Issuer must, and the SF Manager must cause the Issuer to, use the
proceeds of a Funding Portion only to make Top-up Loans.
3.2 SUSPENSION OF THE FACILITY
(a) The OF Manager may, as the OF Manager in its absolute discretion
determines, suspend the Facility at any time and for any period
of time after giving notice to the SF Manager and the Issuer.
(b) Nothing in clause 3.2(a) affects the obligations of the Note
Holder to subscribe for Notes in respect of Top-up Loans approved
by the OF Manager prior to giving notice in accordance with
clause 3.2(a).
(c) The OF Manager may give notice at any time that it withdraws the
suspension.
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4 FUNDING PROCEDURES
4.1 DELIVERY OF FUNDING NOTICE
If the SF Manager determines that the Issuer requires a Note to be
issued, the SF Manager must deliver to the Note Holder and the OF
Manager a Funding Notice in accordance with this clause 4.
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4.2 REQUIREMENTS FOR A FUNDING NOTICE
A Funding Notice:
(a) must be in writing in the form of, and specifying the matters set
out in, schedule 1;
(b) must be received by the Note Holder and the OF Manager not later
than 12 noon on the Business Day which is the Funding Date; and
(c) must be signed by an Officer of the SF Manager.
4.3 COPY OF THE FUNDING NOTICE
A copy of each Funding Notice must be provided to the Issuer at the
same time it is given to the Note Holder and the OF Manager.
4.4 IRREVOCABILITY OF FUNDING NOTICE
The Note Holder and the OF Manager must not decline to provide the
funding specified in a Funding Notice. Following the issue of 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.
4.5 NOTIFICATION OF FUNDING RATE
(a) After the OF Manager has determined the Base Rate for a Payment
Period it must promptly notify the Issuer and SF Manager in
writing of the Funding Rate for that Payment Period, specifying
both the Base Rate and the Margin.
(b) In the absence of manifest error, each determination of the Base
Rate by the OF Manager is conclusive evidence of that rate
against the Issuer and the SF Manager.
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5 LOAN FACILITY
5.1 PROVISION OF FUNDING PORTIONS
If the SF Manager gives a Funding Notice in accordance with clause 4,
then, subject to this agreement (including, without limitation, clause
11), the Note Holder must, and the OF Manager must cause the Note
Holder to, provide the relevant Funding Portion under the Facility as
payment for the relevant Note in Same Day Funds in Dollars not later
than 12 noon (Melbourne time) on the specified Funding Date and in
accordance with that Funding Notice.
5.2 REPAYMENT
On each Payment Date and to the extent that during the Payment Period
it has not done so, the Issuer must, and the SF Manager must cause the
Issuer to:
(a) repay so much of the Principal Outstanding (to the extent that
funds are available from the Securitisation Fund) as the Issuer
is required to apply
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from "Interest Collections" to "repayment of any principal due
and payable under any Top-up Funding Facility" pursuant to clause
6.1(n) of the Supplementary Bond Terms; and
(b) repay so much of the Principal Outstanding (to the extent that
funds are available from the Securitisation Fund) (after the
repayment in clause 5.2(a)) as the Issuer is required to apply
from "Principal Collections" to repayment of "any Top-up
Principal Outstanding under any Top-up Funding Facility" pursuant
to clause 6.2(e) of the Supplementary Bond Terms.
5.3 REPAYMENT OF OUTSTANDING MONEYS
(a) The Principal Outstanding under the Facility must be repaid by
the Issuer to the Note Holder:
(1) in full on the Termination Date; and
(2) otherwise as specified in, or required under, the
Transaction Documents,
and the SF Manager must cause the Issuer to do so.
(b) 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.
5.4 INTEREST
(a) On each Payment Date, the Issuer must, and the SF Manager must
cause the Issuer to, pay to the Note Holder interest (to the
extent that funds are available from the Securitisation Fund) on
the Principal Outstanding at the Funding Rate:
(1) in relation to any Funding Portion drawn during the current
Payment Period, for the period from and including the
relevant Funding Date to but excluding the Payment Date; and
(2) in relation to the remainder of the Principal Outstanding,
for the Payment Period,
to the extent to which the Issuer is required to apply from
"Interest Collections" to "repayment of any interest due" under
"any Top-up Funding Facility" pursuant to clause 6.1(d) of the
Supplementary Bond Terms.
(b) If on any Payment Date, interest in respect of the relevant
Payment Period is not paid on the whole amount of the Principal
Outstanding:
(1) that unpaid interest shall accrue interest at the Overdue
Rate for the next Payment Period;
(2) that unpaid interest and interest accrued under paragraph
(1) shall become payable on the next Payment Date to the
extent to which (after payment of interest under clause
5.4(a)) the Issuer is required to apply from "Interest
Collections" to "repayment of interest due"
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under "any Top-up Funding Facility" pursuant to clause 6.1
of the Supplementary Bond Terms; and
(3) to the extent to which any unpaid interest (including any
interest accrued under paragraph (1)) remains unpaid after
that next Payment Date it will again be subject to
paragraphs (1) and (2) for each subsequent Payment Period
and Payment Date until it has been paid.
(c) Interest must be calculated in arrears on daily balances on the
basis of a 365 day year and for the actual number of days elapsed
during the relevant period.
5.5 ORDER OF REPAYMENT
(a) In making repayments under clauses 5.2 and 5.3, the Issuer must,
and the SF Manager must cause the Issuer to, apply the amount of
the repayment to repay the Principal Outstanding under the Notes
in order of the date of issue of the Notes so that the Notes
issued earlier in time are repaid first.
(b) The Note Holder must, and the OF Manager must cause the Note
Holder to, apply repayments in accordance with clause 6.3(a).
(c) The OF Manager must advise the Issuer and the SF Manager in
writing of the Notes which have been wholly or partly repaid, the
amount of the repayment and the Principal Outstanding under that
Note.
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6 PAYMENTS
6.1 MANNER OF PAYMENTS
All payments to the Note Holder under the Material Documents must be
made:
(a) in Same Day Funds;
(b) in Dollars; and
(c) not later than 11:00 am (Melbourne time) on the due date,
to the account of the Note Holder specified by the OF Manager to the
Issuer or in such other manner to an account of the Note Holder as the
OF Manager directs from time to time.
6.2 PAYMENTS ON A BUSINESS DAY
If a payment is due on a day which is not a Business Day, the due date
for that payment is the next Business Day and interest must be
adjusted accordingly.
6.3 APPROPRIATION OF PAYMENTS
(a) All payments made by the Issuer to the Note Holder under this
agreement may be appropriated as between principal, interest and
other amounts, as the OF Manager in its absolute discretion
determines, or, failing any determination, in the following
order:
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(1) first, 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;
(2) second, towards payment of interest due and payable under
the Material Documents; and
(3) third, towards repayment of the Principal Outstanding.
(b) Any appropriation under clause 6.3(a) overrides any appropriation
made by the Issuer.
6.4 PAYMENTS IN GROSS
All payments which a Transaction Party is required to make under any
Material Document must be:
(a) without any set-off, counterclaim or condition; and
(b) without any deduction or withholding for any Tax or any other
reason, unless, the Transaction Party is required to make a
deduction or withholding by applicable law.
6.5 TAXATION DEDUCTION PROCEDURES
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:
(a) that Transaction Party has no obligation to indemnify the Note
Holder against that tax; and
(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 that
Governmental Agency and within 2 Business Days after receipt the
Issuer must, and the SF Manager must cause the Issuer to, deliver
them to the Note Holder.
6.6 AMOUNTS PAYABLE ON DEMAND
If any amount payable by a Transaction Party under any Material
Document is not expressed to be payable on a specified date that
amount is payable by the Transaction Party on demand by the Note
Holder or OF Manager.
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7 REPRESENTATIONS AND WARRANTIES
7.1 BY THE ISSUER
The Issuer hereby represents and warrants to the OF Manager and Note
Holder that:
(a) (DUE INCORPORATION): it is duly incorporated and has the
corporate power to own its property and to carry on its business
as is now being conducted;
(b) (CONSTITUTION): the execution delivery and performance of this
agreement and any Note does not and will not violate its
Constitution;
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(c) (CORPORATE POWER): it has the power and has taken all corporate
and other action required to enter into this agreement and each
Note and to authorise the execution and delivery of this
agreement and each Note and the performance of its obligations
thereunder;
(d) (FILINGS): it has filed all corporate notices and effected all
registrations with the Australian Securities and Investments
Commission or similar office in the jurisdiction of incorporation
and in any other jurisdiction as required by law and all such
filings and registrations are current, complete and accurate
except;
(1) as such enforceability may be limited by any applicable
bankruptcy, insolvency, reorganisation, moratorium or trust
or other similar laws affecting creditors' rights generally;
and
(2) that this representation and warranty does not apply to the
filing of ASIC form 309 in relation to the creation of the
Charge (as defined in the Security Trust Deed);
(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;
(f) (EXECUTION, DELIVERY AND PERFORMANCE): the execution, delivery
and performance of this agreement and each Note by it does not
violate any existing law or regulation or any document or
agreement to which it is a party in either case in its capacity
as trustee of the Securitisation Fund or which is binding upon it
or any of its assets in its capacity as trustee of the
Securitisation Fund;
(g) (AUTHORISATION): all consents, licences, approvals and
authorisations of every Governmental 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;
(h) (SECURITISATION FUND VALIDLY CREATED): the Securitisation Fund
has been validly created and is in existence at the date of this
agreement;
(i) (SOLE TRUSTEE): it has been validly appointed as trustee of the
Securitisation Fund and is presently the sole trustee of the
Securitisation Fund;
(j) (MASTER TRUST DEED): the Securitisation Fund is constituted
pursuant to the Master Trust Deed; and
(k) (NO PROCEEDINGS TO REMOVE): no notice has been given to it and to
its knowledge no resolution has been passed or direction or
notice has been given, removing it as trustee of the
Securitisation Fund.
7.2 BY THE SF MANAGER
The SF Manager hereby represents and warrants to the OF Manager and
Note Holder that:
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(a) (DUE INCORPORATION): it is duly incorporated and has the
corporate power to own its property and to carry on its business
as is now being conducted;
(b) (CONSTITUTION): the execution, delivery and performance by it of
this agreement and each Note does not and will not violate its
Constitution;
(c) (CORPORATE POWER): the SF Manager has the power and has taken all
corporate and other action required to enter into this agreement
and each Note and to authorise the execution and delivery of this
agreement and each Note and the performance of its obligations
hereunder;
(d) (FILINGS): the SF Manager has filed all corporate notices and
effected all registrations with the Australian Securities and
Investments Commission or similar office in its jurisdiction of
incorporation and in any other jurisdiction as required by law
and all such filings and registrations are current, complete and
accurate;
(e) (LEGALLY BINDING OBLIGATION): this agreement and each Note
constitutes or will constitute a valid, legally binding and
enforceable obligation of the SF Manager in accordance with its
terms except as such enforceability may be limited by any
applicable bankruptcy, insolvency, re-organisation, moratorium or
trust or other similar laws affecting creditors' rights
generally;
(f) (EXECUTION, DELIVERY AND PERFORMANCE): the execution, delivery
and performance of this agreement and each Note by the SF Manager
does not violate any existing law or regulation or any document
or agreement to which the SF Manager is a party or which is
binding upon it or any of its assets; and
(g) (AUTHORISATION): all consents, licences, approvals and
authorisations of every Government Agency required to be obtained
by the SF Manager in connection with the execution, delivery and
performance of this agreement and each Note have been obtained
and are valid and subsisting.
7.3 SURVIVAL AND REPETITION OF REPRESENTATIONS AND WARRANTIES
The representations and warranties in, or given under, this agreement
including, but not limited to, clauses 7.1 and 7.2:
(a) survive the execution of each Transaction Document; and
(b) are regarded as repeated on each Funding Date with respect to the
facts and circumstances then subsisting.
7.4 RELIANCE BY THE NOTE HOLDER AND OF MANAGER
The Issuer and the SF Manager each acknowledge that the Note Holder
and OF Manager have entered into each Transaction Document to which it
is a party in reliance on the representations and warranties in, or
given under, this agreement including, but not limited to, clauses 7.1
and 7.2.
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8 UNDERTAKINGS
8.1 TERM OF UNDERTAKINGS
Unless the OF Manager otherwise agrees in writing, until the
Outstanding Moneys are fully and finally repaid the Issuer and the SF
Manager must, at its own cost (but without prejudice to clause 11 in
the case of the Issuer), comply with the undertakings in this clause
8.
8.2 COMPLIANCE WITH COVENANTS
The Issuer must and the SF Manager must ensure that the Issuer does
comply with all of its covenants and obligations under the Security
Trust Deed and Supplementary Bond Terms.
8.3 NOTIFY EVENTS OF DEFAULT
On and from the Termination Date, each of the SF Manager and the
Issuer must immediately notify all the other parties to this agreement
in writing if it becomes actually aware of the occurrence of any Event
of Default and must provide full and complete details in relation
thereto immediately upon becoming actually aware of such details.
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9 EVENTS OF DEFAULT
9.1 EFFECT OF EVENT OF DEFAULT
(a) Upon or at any time after the occurrence of an Event of Default
the Note Holder or the OF Manager may by notice to the Issuer and
the SF Manager declare that the Outstanding Moneys are
immediately due and payable.
(b) The Issuer must and the SF Manager must cause the Issuer to upon
receipt of a notice under clause 9.1(a) immediately repay in full
the Outstanding Moneys to the Note Holder.
9.2 ISSUER TO CONTINUE TO PERFORM
(a) If the Note Holder or OF Manager makes any declaration under
clause 9.1:
(1) the declaration does not affect or diminish the duties and
obligations of the Issuer or the SF Manager under the
Transaction Documents; and
(2) each of the Issuer and the SF Manager must continue to
perform its obligations under the Transaction Documents as
if the declaration had not been made, subject to any
directions that may be given by the Note Holder or the OF
Manager from time to time under any Transaction Document.
(b) Clause 9.2(a) does not affect the obligations of the Issuer or
the SF Manager under clause 9.1.
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9.3 ENFORCEMENT
(a) The Material Documents may be enforced without notice to or
consent by the Issuer or SF Manager or any other person even if
the Note Holder accepts any part of the Outstanding Moneys after
an Event of Default or there has been any other Event of Default.
(b) Neither the Note Holder nor the OF Manager is liable to any
Transaction Party for any loss or damage a Transaction Party may
suffer, incur or be liable for arising out of or in connection
with the Note Holder or OF Manager exercising any Power under any
Material Document.
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10 INCREASED COSTS, ILLEGALITY AND YIELD PROTECTION
10.1 INCREASED COSTS
If the OF Manager determines that the Note Holder is affected by any
future, or any change in any present or future, law, regulation,
order, treaty, official directive or request (with which, if not
having the force of law, compliance is in accordance with the practice
of responsible bankers and financial institutions in the jurisdiction
concerned) including, but not limited to in respect of:
(a) any reserve, liquidity, capital adequacy, capital allocation,
special deposit or similar requirement; or
(b) Tax (other than Excluded Tax in respect of the Securitisation
Fund) on or in respect of payments made or to be made to the Note
Holder under a Material Document,
or a present or future interpretation or administration of any of them
by a Governmental Agency, and that, as a result:
(c) the effective cost to the Note Holder of making, funding or
maintaining the Facility or the Principal Outstanding or
performing any of its obligations under or in respect of the
Material Documents is in any way directly or indirectly
increased; or
(d) any amount paid or payable to, or received or receivable by, the
Note Holder or the effective return to the Note Holder under the
Material Documents is in any way directly reduced; or
(e) the Note Holder is required to make any payment or forego any
interest or other return on or calculated by reference to:
(1) any sum received or receivable by it under or in respect of
the Material Documents in an amount which the OF Manager
considers material; or
(2) any capital or other amount which is or becomes directly or
indirectly allocated by the Note Holder to the Principal
Outstanding in an amount which the OF Manager considers
material; or
(f) the Note Holder is restricted in its capacity to enter into, or
is prevented from entering into, any other transaction with any
consequence referred to in clause 10.1(c), (d) or (e) or with any
other cost or loss of return to the Note Holder,
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then, and in each such case:
(g) when it becomes aware of the relevant result and has calculated
or otherwise determined the relevant effects the Note Holder must
and the OF Manager must cause the Note Holder to promptly notify
each Transaction Party of such event; and
(h) the Issuer and the SF Manager have no obligation to pay any
amount to compensate the Note Holder for such increased cost,
reduction, payment or foregone interest or other loss of return.
10.2 ILLEGALITY
If any event occurs (including, but not limited to, any change in, or
the introduction, implementation, operation or taking effect of, any
law, regulation, treaty, order or official directive, or in their
interpretation or application by any Governmental Agency) which makes
it unlawful, or impracticable for the Note Holder to make, fund or
maintain the Principal Outstanding or for the Note Holder or OF
Manager to perform its obligations under any Material Documents then:
(a) the obligations of the Note Holder and the OF Manager under the
Material Documents are immediately suspended for the duration of
such illegality or other effect; and
(b) the Note Holder and the OF Manager may, by notice to the Issuer
terminate its obligations under the Material Documents; and
(c) if required by the applicable event, or its effect, or if
necessary to prevent or remedy a breach or to comply with any
applicable law, regulation, treaty, order or official directive
the Issuer must and the SF Manager must cause it to immediately
prepay to the Note Holder the Outstanding Moneys of it in full
or, if in the OF Manager's opinion delay in prepayment does not
compound such breach or affect such compliance, at the end of at
least the longer of 30 days and the period ending on the next
occurring Payment Date (or such lesser period if the applicable
law, regulation, treaty, order or official directive requires)
upon prior notice to that effect from the OF Manager.
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11 TRUSTEE LIMITATION OF LIABILITY PROTECTION
11.1 LIMITATION OF LIABILITY - ISSUER
(a) Clause 26 of the Master Trust Deed applies to the obligations and
liabilities of the Issuer and SF Manager under this agreement.
(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
11.1(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 Issuer's liability
applies despite any other provision of this agreement
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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.
(c) Subject to clause 11.1(d) below, 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).
(d) The provisions of this clause 11.1 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
Issuer's indemnification or exoneration out of the assets of the
Securitisation Fund, as a result of the Issuer's fraud,
negligence or wilful default.
(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 11.1(d) above 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.
(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
11.1(d) above.
(g) In this clause 11.1 Relevant Parties means any party to a
Transaction Document other than the Issuer.
(h) The Issuer is not obliged to do or refrain from doing anything
under this agreement (including incur any liability) unless the
Issuer's liability is limited in the same manner as set out in
paragraph (b) to (d) of this clause 11.1.
11.2 LIMITATION OF LIABILITY - NOTE HOLDER
(a) Clause 26 of the Master Trust Deed applies to the obligations and
liabilities of the Note Holder and OF Manager under this
agreement.
(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
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can be enforced against the Note Holder only to the extent to
which it can be satisfied out of property of the Origination Fund
out of which the Note Holder is actually indemnified for the
liability. This limitation of the Note Holder's liability applies
despite any other provision of this agreement and extends to all
liabilities and obligations of the Note Holder in any way
connected with any representation, warranty, conduct, omission,
agreement or transaction related to this agreement.
(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).
(d) The provisions of this clause 11.2 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 Holder's indemnification out of the
assets of the Origination Fund, as a result of the Note Holder's
fraud, negligence or wilful default.
(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 paragraph (d) of this
clause 11.2 to the extent to which the act or omission was caused
or contributed to by any failure by the OF Manager or any other
person to fulfil its obligations relating to the Origination Fund
or by any other act or omission of the OF Manager or any other
person.
(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 paragraph (d) of this clause 11.2.
(g) The Note Holder is not obliged to do or refrain from doing
anything under this agreement (including incur any liability)
unless the Note Holder's liability is limited in the same manner
as set out in paragraph (b) to (d) of this clause 11.2.
11.3 WILFUL DEFAULT OF THE ISSUER AND THE NOTE HOLDER
For the purposes of this agreement the expression "wilful default":
(a) in relation to the Issuer and the Note Holder, means a wilful
default of this agreement by the Issuer or the Note Holder, as
the case may be,
(1) other than a default which:
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(A) arises out of a breach of a Transaction Document by a
person other than the Issuer or the Note Holder or any
person referred to in paragraph (b) of this clause in
relation to the Issuer or the Note Holder;
(B) arises because some other act or omission is a
precondition to the relevant act or omission of the
Issuer or the Note Holder, and that other act or
omission does not occur;
(C) is in accordance with a lawful court order or direction
or is required by law; or
(D) is in accordance with an instruction or direction given
to it by any person in circumstances where that person
is authorised to do so by any Transaction Document; and
(2) in circumstances where had it not committed that default it
would have been entitled to recoupment, reimbursement or a
right of indemnity for its costs and expenses (if any) in
complying with this agreement from the Fund.
(b) A reference to the "fraud", "negligence" or "wilful default" of
the Issuer or the Note Holder means the fraud, negligence or
wilful default of the Issuer or the Note Holder, as the case may
be, and of the officers or employees but not the agents or
delegates of the Issuer or the Note Holder, unless the Issuer or
the Note Holder is liable for the acts or omissions of such other
person under the terms of this agreement.
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12 INDEMNITIES
12.1 GENERAL INDEMNITY
(a) Subject to clause 11.1 the Issuer, to the extent it is permitted
or contemplated under the terms of the 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:
(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;
(2) the occurrence of any Default or Event of Default;
(3) the Note Holder or OF Manager, as the case may be,
exercising its Powers consequent upon or arising out of the
occurrence of any Event of Default.
(b) Without limitation to the indemnity contained in clause 12.1(a),
that indemnity includes the amount determined by the Note Holder
or OF Manager, as the case may be, as being incurred by reason of
the
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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.
12.2 CONTINUING INDEMNITIES AND EVIDENCE OF LOSS
(a) Each indemnity of the Issuer contained in this agreement is a
continuing obligation of the Issuer, despite:
(1) any settlement of account; or
(2) the occurrence of any other thing,
and remains in full force and effect until:
(3) all moneys owing, contingently or otherwise, under any of
the Material Documents have been paid in full;
(4) the Outstanding Moneys are fully and finally repaid.
(b) Each indemnity of the Issuer contained in this agreement is an
additional, separate and independent obligation of the Issuer and
no one indemnity limits the generality of any other indemnity.
(c) Each indemnity of the Issuer contained in this agreement survives
the termination of any Transaction Document.
(d) A certificate under the hand of an Officer of the OF Manager
detailing the amount of any damage, loss, liability, cost,
charge, expense, outgoing or payment covered by any indemnity in
this agreement is sufficient evidence unless the contrary is
proved.
12.3 FUNDS AVAILABLE FOR INDEMNITY
The obligations of the Issuer under this clause 12 shall be payable
solely to the extent that funds are available from time to time for
that purpose under clause 6 of the Supplementary Bond Terms.
12.4 NEGLIGENCE, WILFUL DEFAULT OR BREACH OF LAW
The indemnities in this clause 12 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.
12.5 NOTIFICATION FROM NOTE HOLDER OR OF MANAGER
If the Note Holder or the OF Manager receives written notice of any
act, matter or thing which may give rise to a liability, loss, cost,
charge or expense in relation to which the Issuer would be required to
indemnify it under this clause 12, 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 Business 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 12 unless the Issuer has been prejudiced in any material
respect by such failure.
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13 TAX, COSTS AND EXPENSES
13.1 TAX
(a) The Issuer must and the SF Manager must cause the Issuer to pay
any Tax, other than an Excluded Tax in respect of the
Securitisation Fund, in respect of the execution, delivery,
performance, release, discharge, amendment, enforcement or
attempted enforcement or otherwise in respect of any of the
following:
(1) any Material Document;
(2) any agreement or document entered into or signed under any
Material Document; and
(3) any transaction contemplated under any Material Document or
any agreement or document described in clause 13.1(a)(2).
(b) The Issuer must and the SF Manager must cause the Issuer to pay
any fine, penalty or other cost in respect of a failure to pay
any Tax described in clause 13.1(a) except to the extent that the
fine, penalty or other cost is caused by the Note Holder's
failure to lodge money received from the Issuer before the due
date for lodgement.
(c) The Issuer indemnifies out of the property of the Securitisation
Fund the Note Holder against any amount payable under clause
13.1(a) or 13.1(b) or both.
13.2 COSTS AND EXPENSES
The Issuer must and the SF Manager must cause the Issuer to pay all
costs and expenses of the Note Holder and the OF Manager and any
employee, Officer, agent or contractor of the Note Holder and the OF
Manager in relation to:
(a) the negotiation, preparation, execution, delivery, stamping,
registration, completion, variation and discharge of any Material
Document or any agreement or document described in clause
13.1(a);
(b) the enforcement, protection or waiver, or attempted enforcement
or protection, of any rights under any Material Document or any
agreement or document described in clause 13.1(a),
(c) the consent or approval of the Note Holder or OF Manager given
under any Material Document or any agreement or document
described in clause 13.1(a); and
(d) any enquiry by any Governmental Agency involving a Transaction
Party,
including, but not limited to, any administration costs of the Note
Holder or the OF Manager, as the case may be, in connection with the
matters referred to in clause 13.2(b) and (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.
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13.3 GOODS AND SERVICES TAX
(a) Subject to clause 13.3(b), all amounts referred to in this
agreement which are relevant in determining a payment to be made
by one party to another are exclusive of GST unless specifically
indicated otherwise.
(b) If a party to this agreement is entitled to be indemnified or
reimbursed for any cost or expense incurred by that party, then
the indemnity or reimbursement will be calculated by reference to
the GST-exclusive amount of that cost or expense, increased by an
amount equal to that part of the cost or expense for which the
party or its representative member is not entitled to an input
tax credit but would be entitled if that entity was entitled to a
full input tax credit. For the avoidance of doubt, the amount
calculated under this clause 13.3(b) is a GST-exclusive amount.
(c) If GST is levied or imposed on or in respect of any supply made
under or in connection with this agreement for which the
consideration is a monetary payment, then the consideration
provided for that supply is increased by an amount equal to the
consideration multiplied by the rate at which that GST is levied
or imposed. This additional amount is payable to the party with
the liability to remit GST in the manner and at the time when the
consideration to which it relates is payable.
(d) The recipient of any consideration for a taxable supply (whether
in money or otherwise) must provide to the other party a GST tax
invoice (or any other thing required under any legislation
concerned with GST) in the form required by the A New Tax System
(Goods and Services Tax) Xxx 0000 or that other legislation.
(e) Where an "adjustment event", as defined in the A New Tax System
(Goods and Services Tax) Xxx 0000 occurs under this Agreement,
the parties shall do all things necessary to ensure that the
adjustment event may be appropriately recognised, including the
issue of an "adjustment note", as that term is defined in that
Act.
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14 INTEREST ON OVERDUE AMOUNTS
14.1 PAYMENT OF INTEREST
The Issuer must and the SF Manager must cause the Issuer to pay
interest on:
(a) any of the Outstanding Moneys due and payable, but unpaid; and
(b) on any interest payable but unpaid in accordance with clause 5.
14.2 ACCRUAL OF INTEREST
The interest payable under this clause 14:
(a) accrues from day to day from and including the due date for
payment up to the actual date of payment, before and, as an
additional and independent obligation, after any judgment or
other thing into which the liability to pay the Outstanding
Moneys becomes merged; and
(b) may be capitalised by the Note Holder on any Payment Date.
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14.3 RATE OF INTEREST
The rate of interest payable under this clause 14 on any part of the
Outstanding Moneys is the higher of:
(a) the Overdue Rate; and
(b) the rate fixed or payable under a judgment or other thing
referred to in clause 14.2(a).
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15 ASSIGNMENT
15.1 ASSIGNMENT BY TRANSACTION PARTY
A Transaction Party must not transfer or assign any of its rights or
obligations under any Material Document without the prior written
consent of the OF Manager, the Note Holder and each Designated Rating
Agency.
15.2 ASSIGNMENT BY NOTE HOLDER AND OF MANAGER
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 without the prior written consent of the other parties.
Any such assignment must contain an acknowledgement that the assignee
is bound by the provisions of this agreement
15.3 ASSIST TRANSFER OR ASSIGNMENT
At the request of the Note Holder or OF Manager, the Issuer and the SF
Manager must do any thing including, but not limited to, executing any
documents or amending any Material Document, to effect any transfer or
assignment under this clause 15.
15.4 PARTICIPATION PERMITTED
The Note Holder and OF Manager may grant by way of sub-participation
(being a right to share in the financial effects of this agreement,
without any rights against the Issuer) all or part of the Note
Holder's or OF Manager's, as the case may be, rights and benefits
under this agreement to any other person without having to obtain the
consent of or to notify the Issuer or the SF Manager.
15.5 LENDING OFFICE
(a) The Note Holder may change its Lending Office at any time.
(b) The Note Holder must promptly notify the Issuer and the SF
Manager of any such change.
15.6 DISCLOSURE
Any party may disclose to a proposed assignee, transferee or
sub-participant any information relating to any other party or the
Transaction Documents whether or not confidential and whether or not
the disclosure would be in breach of any law or of any duty owed to
that other party.
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15.7 NO INCREASE IN COSTS
If the Note Holder or OF Manager assigns or transfers any of its
rights or obligations under any Material Document or changes its
Lending Office the Issuer is not required to pay any net increase in
the aggregate amount of costs, Taxes, fees or charges which:
(a) are a direct consequence of the transfer or assignment or change
of Lending Office; and
(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.
--------------------------------------------------------------------------------
16 GENERAL
16.1 CONFIDENTIAL INFORMATION
The Note Holder and OF Manager may, for the purpose of exercising any
Power, disclose to any person any documents or records of, or
information about, any Transaction Document, or the assets, business
or affairs of any Transaction Party, whether or not confidential and
whether or not the disclosure would be in breach of any law or of any
duty owed to any Transaction Party.
16.2 PERFORMANCE BY NOTE HOLDER OF OBLIGATIONS
If a Transaction Party defaults in fully and punctually performing any
obligation contained or implied in any Transaction Document, the Note
Holder and OF Manager may, without prejudice to any Power do all
things necessary or desirable, in the opinion of the Note Holder or OF
Manager, as the case may be, to make good or attempt to make good that
default to the satisfaction of the Note Holder or OF Manager, as the
case may be.
16.3 TRANSACTION PARTY TO BEAR COST
Without prejudice to clause 11, 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.
16.4 NOTICES
(a) Any notice or other communication including, but not limited to,
any request, demand, consent or approval, to or by a party to any
Material Document:
(1) must be in legible writing and in English addressed as shown
below (or if sent by facsimile, to the facsimile numbers
below) and marked to the attention of the following:
(A) if to the Note Holder:
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Address: Xxxxx 0
0 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XXX, 0000
Attention: Head of Securitisation / Manager -
Securitisation
Facsimile: (00) 0000 0000; and
(B) if to the Issuer:
Address: Xxxxx 0
0 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XXX, 0000
Attention: Head of Securitisation / Manager -
Securitisation
Facsimile: (00) 0000 0000
(C) if to the SF Manager:
Address: Xxxxx 00,
000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx 0000
Attention: Manager - Capital Markets
Facsimile: (00) 0000 0000; and
(D) if to the OF Manager:
Address: Xxxxx 00,
000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx 0000
Attention: Manager - Capital Markets
Facsimile: (00) 0000 0000;
or as specified to the sender by any party by notice;
(2) where the sender is a company, must be signed by an Officer
or under the common seal of the sender;
(3) is regarded as being given by the sender and received by the
addressee:
(A) if by delivery in person, when delivered to the
addressee;
(B) if by post, on delivery to the addressee; or
(C) if by facsimile transmission, as long as it is legibly
received, when transmitted to the addressee,
but if the delivery or receipt is on a day which is not a
Business Day or is after 4.00 pm (addressee's time) it is
regarded as received at 9.00 am on the following Business
Day;
(4) can be relied upon by the addressee and the addressee is not
liable to any other person for any consequences of that
reliance if the addressee believes it to be genuine, correct
and authorised by the sender; and
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(5) if to the Note Holder must be copied to the OF Manager and
if to the Issuer must be copied to the SF Manager.
(b) A facsimile transmission is regarded as legible unless the
addressee telephones the sender within 2 hours after the
transmission is received or regarded as received under clause
16.4(a)(3) and informs the sender that it is not legible.
(c) In this clause 16.4, a reference to an addressee includes a
reference to an addressee's Officers, agents or employees.
16.5 GOVERNING LAW AND JURISDICTION
(a) This agreement is governed by the laws of New South Wales.
(b) The parties irrevocably submit to the non-exclusive jurisdiction
of the courts of New South Wales.
16.6 PROHIBITION AND ENFORCEABILITY
(a) Any provision of, or the application of any provision of, any
Material Document or any Power which is prohibited in any
jurisdiction is, in that jurisdiction, ineffective only to the
extent of that prohibition.
(b) Any provision of, or the application of any provision of, any
Material Document which is void, illegal or unenforceable in any
jurisdiction does not affect the validity, legality or
enforceability of that provision in any other jurisdiction or of
the remaining provisions in that or any other jurisdiction.
16.7 WAIVERS
(a) Waiver of any right arising from a breach of this agreement or of
any Power arising upon default under this agreement or upon the
occurrence of an Event of Default must be in writing and signed
by the party granting the waiver.
(b) A failure or delay in exercise, or partial exercise, of:
(1) a right arising from a breach of this agreement or the
occurrence of an Event of Default; or
(2) a Power created or arising upon default under this agreement
or upon the occurrence of an Event of Default,
does not result in a waiver of that right or Power.
(c) A party is not entitled to rely on a delay in the exercise or
non-exercise of a right or Power arising from a breach of this
agreement or on a default under this agreement or on the
occurrence of an Event of Default as constituting a waiver of
that right or Power.
(d) A party may not rely on any conduct of another party as a defence
to exercise of a right or Power by that other party.
(e) This clause may not itself be waived except by writing.
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16.8 VARIATION
A variation of any term of this agreement must be in writing and
signed by the parties.
16.9 CUMULATIVE RIGHTS
The Powers are cumulative and do not exclude any other right, power,
authority, discretion or remedy of the Note Holder or OF Manager.
16.10 ATTORNEYS
Each of the Attorneys executing this agreement states that the
Attorney has no notice of the revocation of the power of attorney
appointing that Attorney.
16.11 BINDING OBLIGATIONS
Each party to this agreement acknowledges that the obligations
expressed in this agreement are binding upon it.
16.12 WINDING UP OF SECURITISATION FUND
Prior to the Termination date, neither the Note Holder nor the OF
Manager may seek to terminate or wind up the Securitisation Fund as a
consequence of any breach of this agreement or any Note by the Issuer
or the SF Manager.
16.13 TERMINATION CLAUSE
This agreement can only be terminated on or after the Termination
Date.
16.14 COUNTERPARTS
(a) This agreement may be executed in any number of counterparts.
(b) All counterparts, taken together, constitute 1 instrument.
(c) A party may execute this agreement by signing any counterpart.
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SCHEDULE 1 - FUNDING NOTICE (CLAUSE 4.2)
TO: PERPETUAL TRUSTEES AUSTRALIA LIMITED
in its capacity as trustee of the Superannuation Members' Home Loans
Origination Fund No. 3
(NOTE HOLDER)
Attention: Head of Securitisation/Manager - Securitisation
AND: ME PORTFOLIO MANAGEMENT LIMITED
in its capacity as manager of the Superannuation Members' Home Loans
Origination Fund No. 3
(OF MANAGER)
Attention: Manager - Capital Markets
--------------------------------------------------------------------------------
We refer to the Top-up Funding Facility Agreement dated [INSERT DATE]
(AGREEMENT). Pursuant to clause 4 of the Agreement:
(a) We give you notice that we require the Issuer to issue to the Note Holder a
Note from SMHL Global Fund No. 7 on ............... (FUNDING DATE) at [#];
(b) The aggregate principal amount of the Note is: $........;
(c) We request that the proceeds be remitted to account number ........... at
................... /[INSERT ALTERNATIVE INSTRUCTIONS]
Expressions defined in the Agreement have the same meaning when used in this
Funding Notice.
DATED: [INSERT DATE]
SIGNED for and on behalf of
ME PORTFOLIO MANAGEMENT LIMITED
------------------------------------------------
Officer's signature
------------------------------------------------
Name (please print)
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SCHEDULE 2 - CONDITIONS
Top-up Funding Facility - SMHL Global Fund No. 7
PERPETUAL TRUSTEES AUSTRALIA LIMITED
(ABN 86 000 000 000)
IN ITS CAPACITY AS TRUSTEE OF THE SMHL GLOBAL FUND NO. 7
of Xxxxx 0, 00 Xxxxxx Xxxxxx, Xxxxxx, XXX, 0000
(ISSUER)
whose office for the purposes of payment is at Xxxxx 0, 0 Xxxxxxxxxxx Xxxxxx,
Xxxxxx, Xxx Xxxxx Xxxxx or such other address as the Issuer may notify to the
Note Holder from time to time.
------------------------------------------------------------------------
1 NOTE
(a) This Note certificate is issued as part of the Notes known as the SMHL
Global Fund No. 7. The terms and conditions of the issue of this Note and
repayment are constituted by this Note and the Top-up Funding Facility
Agreement for the Issue and Repayment of Notes - SMHL Global Fund No. 7
dated [#] 2004 between the Issuer, the Note Holder, ME Portfolio Management
Limited (ABN 79 005 964 134) of Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx in its capacity as manager of the Securitisation Fund (SF MANAGER)
and ME Portfolio Management Limited (ABN 79 005 964 134) of Xxxxx 00, 000
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx in its capacity as manager of the
Origination Fund (OF MANAGER) (AGREEMENT). Terms defined in the Agreement
have the same meaning when used in these Conditions.
(b) Subject to clause 3, the Issuer promises to repay the Note Holder in
accordance with the Agreement.
(c) This Note may only be assigned or transferred with the prior written
consent of the Issuer and subject to and in accordance with the Agreement.
2 DERIVATION OF PAYMENT
The parties acknowledge that the payments to be made by the Issuer under
this Note are derived by it from the receipts from a "mortgage" or "pool of
mortgages", as those terms are defined in section 3 of the Duties Xxx 0000
(Vic).
3 EXTENT OF LIABILITY OF ISSUER
(d) Clause 26 of the Master Trust Deed applies to the obligations and
liabilities of the Issuer and SF Manager under this Note.
(e) The Issuer issues this Note in its capacity as trustee of the
Securitisation Fund and no other capacity (except where the Transaction
Documents provide otherwise). Subject to
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paragraph (d) below, 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
Issuer's liability applies despite any other provision of this Note or the
Agreement and extends to all liabilities and obligations of the Issuer in
any way connected with any representation, warranty, conduct, omission,
agreement or transaction related to this Note or the Agreement or the
Securitisation Fund.
(f) Subject to paragraph (d) below, 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.
(g) 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 Issuer's indemnification or exoneration out of the assets
of the Securitisation Fund Issuer, as a result of the Issuer's fraud,
negligence or wilful default.
(h) It is acknowledged that the Relevant Parties are responsible under this
Note, the 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 Note or the Agreement) will be considered fraud,
negligence or wilful default of the Issuer for the purposes of paragraph
(d) of this clause 3 above 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.
(i) No attorney, agent, receiver or receiver and manager appointed in
accordance with this Note or the Agreement or any 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 paragraph (d) of this clause 3.
(j) In this clause 3 Relevant Parties means any party to a Transaction Document
other than the Issuer.
(k) The Issuer is not obliged to do or refrain from doing anything under this
Note or the Agreement (including incur any liability) unless the Issuer's
liability is limited in the same manner as set out in paragraphs (b) to (d)
of this clause 3.
4 EXTENT OF LIABILITY OF NOTE HOLDER
(a) Clause 26 of the Master Trust Deed applies to the obligations and
liabilities of the Note Holder and OF Manager under this agreement.
(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 Holder's
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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.
(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).
(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 Holder's indemnification
out of the assets of the Origination Fund, as a result of the Note Holder's
fraud, negligence or wilful default.
(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 paragraph (c) of this
clause 4 to the extent to which the act or omission was caused or
contributed to by any failure by the OF Manager or any other person to
fulfil its obligations relating to the Origination Fund or by any other act
or omission of the OF Manager or any other person.
(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
paragraph (c) of this clause 4.
(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
Holder's liability is limited in the same manner as set out in paragraph
(ba) to (d) of this clause 4.
5 WILFUL DEFAULT OF THE ISSUER AND THE NOTE HOLDER
For the purposes of this Note the expression "wilful default":
(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,
(1) other than a default which:
(A) arises out of a breach of a Transaction Document by a person
other than the Issuer or the Note Holder or any person referred
to in paragraph (b) of this clause in relation to the Issuer or
the Note Holder;
(B) arises because some other act or omission is a precondition to
the relevant act or omission of the Issuer or the Note Holder,
and that other act or omission does not occur;
(C) is in accordance with a lawful court order or direction or is
required by law; or
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(D) is in accordance with an instruction or direction given to it by
any person in circumstances where that person is authorised to do
so by any Transaction Document; and
(2) in circumstances where had it not committed that default it would have
been entitled to recoupment, reimbursement or a right of indemnity for
its costs and expenses (if any) in complying with this Note and the
Agreement from the Fund.
(b) A reference to the "fraud", "negligence" or "wilful default" of the Issuer
or the Note Holder means the fraud, negligence or wilful default of the
Issuer or the Note Holder, as the case may be, and of the officers or
employees but not the agents or delegates of the Issuer or the 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.
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EXECUTED AS AN AGREEMENT:
ISSUER:
SIGNED for
PERPETUAL TRUSTEES AUSTRALIA LIMITED
by its attorney in
the presence of:
----------------------------------- -----------------------------------
Witness Attorney
----------------------------------- -----------------------------------
Name (please print) Name (please print)
NOTE HOLDER:
SIGNED for
PERPETUAL TRUSTEES AUSTRALIA LIMITED
by its attorney in
the presence of:
----------------------------------- -----------------------------------
Witness Attorney
----------------------------------- -----------------------------------
Name (please print) Name (please print)
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SF MANAGER:
SIGNED by
ME PORTFOLIO MANAGEMENT LIMITED
by:
----------------------------------- -----------------------------------
Secretary/Director Director
----------------------------------- -----------------------------------
Name (please print) Name (please print)
OF MANAGER:
SIGNED by
ME PORTFOLIO MANAGEMENT LIMITED
by:
----------------------------------- -----------------------------------
Secretary/Director Director
----------------------------------- -----------------------------------
Name (please print) Name (please print)
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