Exhibit 10.2
Redraw Facility Agreement
Series 2002-1G WST Trust Redraw Facility
Agreement
Westpac Securities Administration Limited
(Trustee)
Westpac Banking Corporation
(Redraw Facility Provider)
Westpac Securitisation Management Pty Limited
(Trust Manager)
Allens Xxxxxx Xxxxxxxx
The Chifley Tower
0 Xxxxxxx Xxxxxx
Xxxxxx XXX 0000
Xxxxxxxxx
Tel 00 0 0000 0000
Fax 00 0 0000 0000
(C) Copyright Allens Xxxxxx Xxxxxxxx 2000
Series 2002-1G WST Trust Redraw Facility
Agreement Allens Xxxxxx Xxxxxxxx
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Table of Contents
1. Definitions and Interpretation 1
1.1 Definitions 1
1.2 Master Trust Deed definitions 3
1.3 Interpretation 3
1.4 Determination, statement and certificate sufficient evidence 3
1.5 Transaction Document 3
1.6 Limited to Trust 3
2. Purpose 4
3. Drawings 4
3.1 Redraw Advance 4
3.2 Making of Redraw Advances 4
4. Fees 5
4.1 Availability fee 5
4.2 Draw Fee 5
4.3 Capitalisation 5
5. Cancellation of Redraw Limit 6
5.1 During Term 6
5.2 At end of Term 6
5.3 Cancellation by Redraw Facility Provider 6
6. Repayment 6
6.1 Repayment of Redraw Advances 6
6.2 Final repayment 7
7. Prepayments 7
7.1 Voluntary prepayments 7
7.2 Draw Fee 7
7.3 Limitation on prepayments 7
8. Payments 7
8.1 Manner 7
8.2 Payment to be made on Business Day 7
8.3 Appropriation where insufficient moneys available 8
9. Changes in Law 8
9.1 Additional payments 8
9.2 Minimisation 9
9.3 Survival 9
10. Conditions Precedent 9
10.1 Conditions precedent to initial Drawdown Notice 9
10.2 Conditions precedent to each Redraw Advance 9
11. Representations and Warranties 10
11.1 Representations and warranties 10
11.2 Reliance on representations and warranties 12
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12. Undertakings 12
12.1 General undertakings 12
12.2 Undertakings relating to Trust 13
12.3 Term of undertakings 13
13. Events of Default 13
13.1 Events of Default 13
13.2 Consequences 14
14. Control Accounts 14
15. Waivers, Remedies Cumulative 14
16. Severability of Provisions 14
17. Survival of Representations 14
18. Indemnity and Reimbursement Obligation 14
19. Moratorium Legislation 15
20. Consents and Opinions 15
21. Assignments 15
22. Notices 15
23. Authorised Signatories 16
24. Governing Law and Jurisdiction 16
25. Counterparts 16
26. Acknowledgement by Trustee 16
27. Limited Recourse 16
27.1 General 16
27.2 Liability of Trustee limited to its right to indemnity 16
27.3 Unrestricted remedies 17
27.4 Restricted remedies 18
28. Redraw Facility Provider's Obligations 18
29. Successor Trustee 18
ANNEXURE A 21
DRAWDOWN NOTICE 21
ANNEXURE B 22
VERIFICATION CERTIFICATE 22
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|
Date | 12 March 2002
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|
|
Parties |
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|
1. | Westpac Securities Administration Limited (ABN 77 000 049 472)
| incorporated in New South Wales of Xxxxx 0, 00 Xxxx Xxxxxx, Xxxxxx,
| New South Wales as Trustee of the Series 0000-0X XXX Xxxxx (the
| Trustee);
|
2. | Westpac Banking Corporation (ABN 33 007 457 141) incorporated in New
| South Wales of 00 Xxxxxx Xxxxx, Xxxxxx, Xxx Xxxxx Xxxxx (the Redraw
| Facility Provider); and
|
3. | Westpac Securitisation Management Pty Limited (ABN 73 000 000 000)
| incorporated in the Australian Capital Territory, of Xxxxx 00, 00
| Xxxxxx Xxxxx, Xxxxxx, Xxx Xxxxx Xxxxx (the Trust Manager).
|
|
Recitals |
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|
| The Trustee has requested the Redraw Facility Provider to provide
| the Trustee with a redraw facility under which loans of up to an
| aggregate amount of $35,000,000 may be made available to the
| Trustee.
|
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IT IS AGREED as follows.
1. Definitions and Interpretation
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1.1 Definitions
In this agreement the following definitions apply unless the context
requires otherwise, or unless otherwise defined.
Available Redraw Amount means at any time the greater of:
(a) the Redraw Limit at the time less:
(i) the Principal Outstanding at that time;
(ii) the Carryover Redraw Charge Offs at that time; and
(b) zero.
Bank Xxxx Rate has the meaning given in the Series Notice, but on the
first Reset Date of any Redraw Advance the Bank Xxxx Rate shall be an
interpolated rate calculated with reference to the tenor of the period
from that Reset Date to (but not including) the next Reset Date.
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Drawdown Date means, in relation to a Redraw Advance, the Payment Date on
which the Redraw Advance is or is to be made under this agreement.
Drawdown Notice means a notice under clause 3.1.
Event of Default means any of the events specified in clause 13.
Final Repayment Date means the date on which the Term ends.
Master Trust Deed means the deed entitled "Master Trust Deed" between the
Trustee and The Mortgage Company Pty Limited dated 14 February 1997.
Principal Outstanding means, at any time, the total principal amount of
all outstanding Redraw Advances at that time less the Carryover Redraw
Charge Offs at that time.
Redraw Advance means any advance made or to be made under this agreement.
Redraw Limit means $35,000,000 or any other amount as agreed in writing
between the Redraw Facility Provider, the Trustee and the Trust Manager,
as reduced or cancelled under this agreement, provided that the Redraw
Limit may not be increased unless the Designated Rating Agency for each
Class of Notes has confirmed in writing that the increase would not result
in a downgrading of the rating given to any Note of the relevant Class or
the withdrawal of the rating of any Note of the relevant Class.
Reset Date means in relation to a Redraw Advance:
(a) the Drawdown Date for that Redraw Advance; and
(b) each Payment Date while that Redraw Advance is outstanding.
Series Notice means the Series Notice issued by the Trust Manager under
the Master Trust Deed on or about the date of this agreement.
Term means the period commencing on the date of this agreement and
expiring on the earliest of:
(a) the date which is one month after the Notes have been redeemed in
full in accordance with the Master Trust Deed and the Series Notice;
(b) the date declared by the Redraw Facility Provider under clause
13.2(b);
(c) the date on which the Trustee enters into a redraw facility to
replace this agreement with any other person to enable it to fund
Redraw Shortfalls;
(d) at the election of the Redraw Facility Provider, the date on which
Westpac Securitisation Management Pty Limited retires or is removed
as Trust Manager under the Master Trust Deed;
(e) the date on which the Redraw Limit is cancelled in full by the
Trustee under clause 5.1;
(f) the date which is one year after the Maturity Date; and
(g) the date on which the Redraw Limit is cancelled in full by the
Redraw Facility Provider under clause 5.3.
Trust means the Series 0000-0X XXX Xxxxx constituted under the Master
Trust Deed on the terms of the Series Notice.
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Trust Document means:
(a) this agreement;
(b) the Master Trust Deed;
(c) the Notice of Creation of Trust;
(d) the Series Notice;
(e) the Note Trust Deed;
(f) the Agency Agreement;
(g) the Security Trust Deed; and
(h) the Servicing Agreement.
Trustee means the trustee of the Trust at the date of this agreement or
any person which becomes a successor trustee under clause 24 of the Master
Trust Deed.
1.2 Master Trust Deed definitions
Words and expressions which are defined in the Master Trust Deed (as
amended by the Series Notice) and the Series Notice (including in each
case by reference to another agreement) have the same meanings when used
in this agreement, unless the context otherwise requires or unless
otherwise defined in this agreement.
1.3 Interpretation
Clause 1.2 of the Master Trust Deed applies to this agreement as if set
out in full, except that references to this deed are references to this
agreement and:
(a) a reference to an asset includes any real or personal, present or
future, tangible or intangible property or asset and any right,
interest, revenue or benefit in, under or derived from the property
or asset;
(b) an Event of Default subsists until it has been waived in writing by
the Redraw Facility Provider; and
(c) a reference to an amount for which a person is contingently liable
includes an amount which that person may become actually or
contingently liable to pay if a contingency occurs, whether or not
that liability will actually arise.
1.4 Determination, statement and certificate sufficient evidence
Except where otherwise provided in this agreement any determination,
statement or certificate by the Redraw Facility Provider or an Authorised
Signatory of the Redraw Facility Provider provided for in this agreement
is sufficient evidence unless proven wrong.
1.5 Transaction Document
This agreement is a Transaction Document for the purposes of the Master
Trust Deed.
1.6 Limited to Trust
The rights and obligations of the parties under this agreement relate only
to the Trust, and do not relate to any other Trust (as defined in the
Master Trust Deed). Without limitation,
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the Redraw Facility Provider has no obligation under this agreement to
provide financial accommodation to the Trustee as trustee of any other
such Trust.
2. Purpose
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The Trust Manager directs to the Trustee to, and the Trustee shall, apply
the proceeds of each Redraw Advance to fund Redraw Shortfalls in relation
to the Trust by paying it to Westpac in accordance with clause 6.3 of the
Series Notice, and for no other purpose.
3. Drawings
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3.1 Redraw Advance
(a) Subject to this agreement, if on any Determination Date the Trust
Manager determines that there is a Redraw Shortfall in relation to
the Collection Period ending immediately prior to that Determination
Date the Trust Manager must, and the Trustee shall (subject to this
agreement and the Series Notice), direct the Trustee to request a
Redraw Advance by giving to the Redraw Facility Provider a Drawdown
Notice.
(b) A Drawdown Notice must be:
(i) in writing;
(ii) in or substantially in the form of Annexure A;
(iii) signed by the Trustee; and
(iv) given not later than 11.00 am (Sydney time) on the Remittance
Date following that Collection Period.
(c) The amount requested in a Drawdown Notice must be the lesser of:
(i) the relevant Redraw Shortfall; and
(ii) the Available Redraw Amount at that time (but assuming the
repayment of all Redraw Advances due to be repaid on or
before the relevant Drawdown Date).
3.2 Making of Redraw Advances
(a) Subject to the terms of this agreement, a Redraw Advance requested
in a Drawdown Notice shall be made available by the Redraw Facility
Provider paying the proceeds of that Redraw Advance to Westpac.
(b) The Redraw Facility Provider is not obliged to provide a Redraw
Advance to the extent that the aggregate of Principal Outstanding
and the Carryover Redraw Charge Offs would exceed the Redraw Limit.
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4. Fees
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4.1 Availability fee
(a) An availability fee accrues at 0.07% per annum on the daily amount
of the Available Redraw Amount (if any) due from day to day from the
date of this agreement.
(b) The availability fee is calculated on the actual number of days
elapsed and a year of 365 days.
(c) The Trust Manager directs the Trustee to, and the Trustee shall, pay
to the Redraw Facility Provider any accrued availability fee in
arrears on:
(i) each Payment Date; and
(ii) at the end of the Term.
4.2 Draw Fee
(a) A draw fee accrues due from day to day on the daily amount of each
Redraw Advance at the following rates:
(i) the sum of 0.18% per annum and the Bank Xxxx Rate calculated
as of that date (if that date is a Reset Date) or (otherwise)
the Reset Date immediately before that date, if the Redraw
Advance has been outstanding for less than 12 months; and
(ii) the sum of 0.30% per annum and the Bank Xxxx Rate calculated
as of that date (if that date is a Reset Date) or (otherwise)
the Reset Date immediately before that date, if the Redraw
Advance has been outstanding for 12 months or more.
(b) Each draw fee is calculated on the actual number of days elapsed and
a year of 365 days.
(c) The Trust Manager directs the Trustee to, and the Trustee shall, pay
to the Redraw Facility Provider any accrued draw fee in arrears on:
(i) each Payment Date; and
(ii) at the end of the Term.
(d) The Bank Xxxx Rate as at any date will be the Bank Xxxx Rate
determined:
(i) if that date is a Payment Date, on that Payment Date; and
(ii) on any other date, on the Payment Date immediately preceding
that date.
4.3 Capitalisation
Any draw fee payable under this clause 4 which is not paid when due will
immediately be capitalised. The draw fee is payable on any capitalised
amount at the rate and in the manner referred to in this clause 4, even if
the Term has expired.
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4.4 GST
Neither the Availability Fee nor the draw margin specified in this clause
4 are to be increased by reference to any goods and services tax unless:
(a) the Trustee, the Trust Manager and the Redraw Facility Provider
otherwise agree (that agreement not to be unreasonably withheld);
and
(b) the increase will not result in a downgrading or withdrawal of the
rating of any Notes.
5. Cancellation of Redraw Limit
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5.1 During Term
(a) On giving not less than 5 Business Days irrevocable notice to the
Redraw Facility Provider the Trustee may cancel all or part of the
Redraw Limit during the Term.
(b) A partial cancellation must be in a minimum of $100,000 and a whole
multiple of $10,000 unless the Redraw Facility Provider agrees
otherwise.
5.2 At end of Term
At the close of business (Sydney time) on the last day of the Term the
Redraw Limit will be cancelled.
5.3 Cancellation by Redraw Facility Provider
(a) The Redraw Facility Provider may cancel all or part of the Redraw
Limit during the Term immediately on giving notice to the Trustee
and the Trust Manager. The Redraw Limit shall be reduced by the
amount of that cancellation on that notice.
(b) On each Payment Date following that cancellation, the Trustee shall
pay to the Redraw Facility Provider the lesser of:
(i) an amount equal to the Principal Outstanding at that Payment
Date less the Redraw Limit at that Payment Date (if
positive); and
(ii) any amount available for distribution to the Redraw Facility
Provider under clauses 6.10(a)(v) and 6.13(a)(ii) of the
Series Notice.
(c) Repayments under paragraph (b) will be applied against Redraw
Advances in chronological order of their Drawdown Dates.
(d) This clause does not affect the Redraw Facility Provider's rights
under clause 13 of this agreement or under clause 6.11(a)(ii)(D) of
the Series Notice.
6. Repayment
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6.1 Repayment of Redraw Advances
The Trustee shall repay the Principal Outstanding on each Payment Date and
at the end of the Term, to the extent that amounts are available for that
purpose under clause 6.13(a)(ii)
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of the Series Notice. Those repayments will be applied against Redraw
Advances in chronological order of their Drawdown Dates.
6.2 Final repayment
If following the Final Repayment Date, any Principal Outstanding or
Carryover Redraw Charge Off has not been repaid after the distribution of
all Assets of the Trust in accordance with the Series Notice, that
Principal Outstanding or Carryover Redraw Charge Off will be cancelled and
the Trustee will have no further obligation to pay that amount under this
agreement.
7. Prepayments
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7.1 Voluntary prepayments
The Trustee may prepay all or part of the Principal Outstanding with the
consent of the Redraw Facility Provider and on at least 5 Business Days'
notice. The Trustee shall prepay in accordance with that notice.
7.2 Draw Fee
When the Trustee prepays any amount of the Principal Outstanding, it shall
also pay any draw fee accrued on that amount.
7.3 Limitation on prepayments
The Trustee may not prepay all or any part of the Principal Outstanding
except as set out in this agreement.
8. Payments
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8.1 Manner
The Trustee shall make all payments under this agreement:
(a) by cheque, electronic funds transfer or other agreed method to the
Redraw Facility Provider at its address for service of notices or by
transfer of immediately available funds to the account specified by
the Redraw Facility Provider and, in either case, by 4.00 pm (Sydney
time) on the due date; and
(b) without set-off, counterclaim or other deduction, except any
compulsory deduction for Tax; and
(c) in accordance with the directions of the Trust Manager, Master Trust
Deed and the Series Notice.
8.2 Payment to be made on Business Day
If any payment is due on a day which is not a Business Day, the due date
will be the next Business Day.
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8.3 Appropriation where insufficient moneys available
Subject to any express provision of this agreement, the Redraw Facility
Provider may appropriate amounts it receives as between principal, draw
fees, interest and other amounts then payable as it sees fit. This will
override any appropriation made by the Trustee.
9. Changes in Law
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9.1 Additional payments
Whenever the Redraw Facility Provider determines that:
(a) the effective cost to the Redraw Facility Provider of making,
funding or maintaining any Redraw Advance or the Redraw Limit is
increased in any way;
(b) any amount paid or payable to the Redraw Facility Provider or
received or receivable by the Redraw Facility Provider, or the
effective return to the Redraw Facility Provider, under or in
respect of this agreement is reduced in any way;
(c) the return of the Redraw Facility Provider on the capital which is
or becomes directly or indirectly allocated by the Redraw Facility
Provider to any Redraw Advance or the Redraw Limit is reduced in any
way; or
(d) to the extent any relevant law, official directive or request
relates to or affects the Redraw Limit, any Redraw Advance or this
agreement, the overall return on capital of the Redraw Facility
Provider or any of its holding companies is reduced in any way,
as a result of any change in, any making of or any change in the
interpretation or application by any Government Agency of, any law,
official directive or request, then:
(e) (when it has calculated the effect of the above and the amount to be
charged to the Trustee under this clause) the Redraw Facility
Provider shall promptly notify the Trust Manager and the Trustee;
and
(f) on the following Payment Date from time to time the Trustee shall,
subject to clause 6 of the Series Notice, pay for the account of the
Redraw Facility Provider the amount certified by an Authorised
Signatory of the Redraw Facility Provider to be necessary to
compensate the Redraw Facility Provider for the increased cost or
the reduction (from the date of the notice).
Without limiting the above in any way, this clause applies:
(g) to any law, official directive or request with respect to Taxation
(other than any Tax on the net income of any person) or reserve,
liquidity, capital adequacy, special deposit or similar
requirements;
(h) to official directives or requests which do not have the force of
law where it is the practice of responsible bankers or financial
institutions in the country concerned to comply with them; and
(i) where the increased cost or the reduction arises because the Redraw
Facility Provider is restricted in its capacity to enter other
transactions, is required to make
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a payment, or forgoes or earns reduced interest or other return on
any capital or on any sum calculated by reference in any way to the
amount of any Redraw Advance, the Redraw Limit or to any other
amount paid or payable or received or receivable under this
agreement or allocates capital to any such sum.
9.2 Minimisation
(a) (No defence) If the Redraw Facility Provider has acted in good faith
it will not be a defence that any cost, reduction or payment
referred to in this clause could have been avoided.
(b) (Minimisation) The Redraw Facility Provider shall use reasonable
endeavours to minimise any cost, reduction or payment referred to in
this clause.
9.3 Survival
This clause survives the repayment of any relevant Redraw Advance and the
termination of this agreement.
10. Conditions Precedent
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10.1 Conditions precedent to initial Drawdown Notice
The right of the Trustee to give the initial Drawdown Notice and the
obligations of the Redraw Facility Provider under this agreement are
subject to the condition precedent that the Redraw Facility Provider
receives all of the following in form and substance satisfactory to the
Redraw Facility Provider:
(a) (verification certificate) a certificate in relation to the Trustee
given by a director of the Trustee substantially in the form of
Annexure B with the attachments referred to and dated not earlier
than 14 days before the first Drawdown Date;
(b) (Trust Documents) a certified copy of each duly executed and (where
relevant) stamped Trust Document;
(c) (Master Trust Deed conditions precedent) evidence that the
conditions precedent referred to in clause 13 of the Master Trust
Deed have been satisfied;
(d) (Security Trust Deed) evidence that the Security Trust Deed has been
or will be registered with each relevant Governmental Agency free
from all prior Security Interests and third party rights and
interests; and
(e) (Notes) evidence that the Notes have been issued.
10.2 Conditions precedent to each Redraw Advance
The obligations of the Redraw Facility Provider to make available each
Redraw Advance are subject to the further conditions precedent that:
(a) (no default) no Event of Default subsists at the date of the
relevant Drawdown Notice and the relevant Drawdown Date or will
result from the provision of the Redraw Advance; and
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(b) (representations true) the representations and warranties by the
Trustee in this agreement are true as at the date of the relevant
Drawdown Notice and the relevant Drawdown Date as though they had
been made at that date in respect of the facts and circumstances
then subsisting.
11. Representations and Warranties
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11.1 Representations and warranties
The Trustee (in its capacity as trustee of the Trust) makes the following
representations and warranties (so far as they relate to the Trust).
(a) (Status) It is a corporation validly existing under the laws of the
place of its incorporation specified in this agreement.
(b) (Power) It has the power to enter into and perform its obligations
under the Trust Documents to which it is expressed to be a party, to
carry out the transactions contemplated by those documents and to
carry on its business as now conducted or contemplated.
(c) (Corporate authorisations) It has taken all necessary corporate
action to authorise the entry into and performance of the Trust
Documents to which it is expressed to be a party, and to carry out
the transactions contemplated by those documents.
(d) (Documents binding) Each Trust Document to which it is expressed to
be a party is its valid and binding obligation enforceable in
accordance with its terms, subject to any necessary stamping and
registration and to laws, defences and principles of equity
generally affecting creditors' rights.
(e) (Transactions permitted) The execution and performance by it of the
Trust Documents to which it is expressed to be a party and each
transaction contemplated under those documents do not violate in any
respect a provision of:
(i) a law or treaty or a judgment, ruling, order or decree of a
Government Body binding on it;
(ii) its constitution or other constituent documents; or
(iii) any other document or agreement which is binding on it or its
assets,
and, except as provided by the Trust Documents, did not and will
not:
(iv) create or impose a Security Interest on any of its assets; or
(v) allow a person to accelerate or cancel an obligation with
respect to any indebtedness in respect of financial
accommodation, or constitute an event of default,
cancellation event, prepayment event or similar event
(whatever called) under an agreement relating to any such
indebtedness, whether immediately or after notice or lapse of
time or both.
(f) (Authorisations) Each Authorisation which is required in relation
to:
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(i) the execution, delivery and performance by it of the Trust
Documents to which it is expressed to be a party and the
transactions contemplated by those documents;
(ii) the validity and enforceability of those documents; and
(iii) its business as now conducted or contemplated and which is
material,
has been obtained or effected. Each is in full force and
effect. It has complied with each of them. It has paid all
applicable fees for each of them.
(g) (No misrepresentation) All information provided by it to the Redraw
Facility Provider is true in all material respects at the date of
this agreement or, if later, when provided.
(h) (Agreements disclosed) Each document or agreement to which it is a
party and which is material to the Trust Documents or which has the
effect of varying a Trust Document has been disclosed to the Redraw
Facility Provider in writing.
(i) (Trust) The Trust has been validly created and is in existence at
the date of this agreement.
(j) (Trust power) It is empowered by the Master Trust Deed:
(i) to enter into and perform the Trust Documents to which it is
expressed to be a party and to carry on the transactions
contemplated by those documents; and
(ii) to carry on the business of the Trust and to own Assets of
the Trust,
in its capacity as trustee of the Trust. There is no restriction
on or condition of its doing so.
(k) (Trust authorisations) All necessary resolutions have been duly
passed and all consents, approvals and other procedural matters have
been obtained or attended to as required by the Master Trust Deed
for it to enter into and perform the Trust Documents to which it is
expressed to be a party.
(l) (Sole trustee) It has been validly appointed as trustee of the Trust
and is the sole trustee of the Trust.
(m) (Removal) No notice has been given to it, and so far as it is aware
no resolution has been passed or direction or notice has been given
removing it as trustee of the Trust.
(n) (No resettlement) Other than as permitted by the Trust Documents, it
has not taken any action that will cause the property of the Trust
to be re-settled, set aside or transferred to any other trust.
(o) (No termination) It has not taken any action that will cause the
Trust to be terminated, nor has it taken any action that will result
in the vesting of the Assets of the Trust.
(p) (Right of indemnity) It has not taken any action which will limit
its right of indemnity out of, and lien over, the Assets of the
Trust.
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(q) (Compliance with Master Trust Deed) It has complied with its
obligations and duties under the Master Trust Deed, the Series
Notice and (to the best of its knowledge and belief) at law. No one
has alleged that it has not so complied.
11.2 Reliance on representations and warranties
The Trustee acknowledges that the Redraw Facility Provider has entered the
Trust Documents in reliance on the representations and warranties in this
clause.
12. Undertakings
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12.1 General undertakings
Each of the Trustee and the Trust Manager undertake to the Redraw Facility
Provider as follows in relation to the Trust, except to the extent that
the Redraw Facility Provider consents.
(a) (Authorisations) It will ensure that each Authorisation required
for:
(i) the execution, delivery and performance by it of the Trust
Documents to which it is expressed to be a party and the
transactions contemplated by those documents;
(ii) the validity and enforceability of those documents; and
(iii) the carrying on by it of its business as now conducted or
contemplated,
is obtained and promptly renewed and maintained in full force and
effect. It will pay all applicable fees for them. It will provide
copies promptly to the Redraw Facility Provider when they are
obtained or renewed.
(b) (Negative pledge) It will not create or allow to exist a Security
Interest over the Assets of the Trust other than:
(i) under the Trust Documents; or
(ii) a lien arising by operation of law in the ordinary course of
day-to-day trading and not securing indebtedness in respect
of financial accommodation where it duly pays the
indebtedness secured by that lien other than indebtedness
contested in good faith.
(c) (Comply with obligations) It will duly and punctually comply with
its obligations under the Trust Documents.
(d) (Notice to Redraw Facility Provider) It will notify the Redraw
Facility Provider as soon as it becomes aware of:
(i) any Event of Default; and
(ii) any proposal by a Government Agency to acquire compulsorily
any Assets of the Trust.
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12.2 Undertakings relating to Trust
The Trustee, as trustee of the Trust, undertakes to the Redraw Facility
Provider as follows, except to the extent that the Redraw Facility
Provider consents.
(a) (Amendment to Master Trust Deed) It will not consent to any
amendment to the Master Trust Deed, the Series Notice or any other
Trust Document would change:
(i) the basis upon which the amount of any Redraw Advance to be
made is calculated;
(ii) the entitlement of the Trustee to request any Redraw Advance;
or
(iii) the basis of calculation or order of application of any
amount to be paid or applied under clause 6 of the Series
Notice.
(b) (Resettlement) It will not take any action that will result in a
resettlement, setting aside or transfer of any asset of the Trust
other than a transfer which complies with the Master Trust Deed, the
Series Notice and the other Trust Documents.
(c) (No additional trustee) It will act continuously as trustee of the
Trust in accordance with the Master Trust Deed until the Trust has
been terminated or until it has retired or been removed in
accordance with the Master Trust Deed.
12.3 Term of undertakings
Each undertaking in this clause continues from the date of this agreement
until all moneys actually or contingently owing under this agreement are
fully and finally repaid.
13. Events of Default
--------------------------------------------------------------------------------
13.1 Events of Default
Each of the following is an Event of Default (whether or not it is in the
control of the Trustee).
(a) (Payments) An amount is available for payment under clause 6 and the
Trustee does not pay that amount within 10 Business Days of its due
date.
(b) (Insolvency Event) An Insolvency Event occurs:
(i) in relation to the Trust (as if it was a relevant corporation
for the purposes of the definition of Insolvency Event); or
(ii) in relation to the Trustee, and a successor trustee of the
Trust is not appointed within 30 days of that Insolvency
Event.
(c) (Termination Date) The Termination Date occurs in relation to the
Trust.
(d) (Enforcement of Security Trust Deed) An Event of Default (as defined
in the Security Trust Deed) occurs and any action is taken to
enforce the Security Interest under the Security Trust Deed over the
Assets of the Trust (including appointing a receiver or receiver and
manager or selling any of those Assets).
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13.2 Consequences
In addition to any other rights provided by law or any Trust Document, at
any time after an Event of Default (whether or not it is continuing) the
Redraw Facility Provider may do all or any of the following:
(a) by notice to the Trustee and the Trust Manager declare all moneys
actually or contingently owing under this agreement immediately due
and payable, and the Trustee will immediately pay the Principal
Outstanding together with accrued interest and fees and all such
other moneys; and
(b) by notice to the Trustee and the Trust Manager cancel the Redraw
Limit with effect from any date specified in that notice.
14. Control Accounts
--------------------------------------------------------------------------------
The accounts kept by the Redraw Facility Provider constitute sufficient
evidence, unless proven wrong, of the amount at any time due from the
Trustee under this agreement.
15. Waivers, Remedies Cumulative
--------------------------------------------------------------------------------
(a) No failure to exercise and no delay in exercising any right, power
or remedy under this agreement operates as a waiver. Nor does any
single or partial exercise of any right, power or remedy preclude
any other or further exercise of that or any other right, power or
remedy.
(b) The rights, powers and remedies provided to the Redraw Facility
Provider in this agreement are in addition to, and do not exclude or
limit, any right, power or remedy provided by law.
16. Severability of Provisions
--------------------------------------------------------------------------------
Any provision of this agreement which is prohibited or unenforceable in
any jurisdiction is ineffective as to that jurisdiction to the extent of
the prohibition or unenforceability. That does not invalidate the
remaining provisions of this agreement nor affect the validity or
enforceability of that provision in any other jurisdiction.
17. Survival of Representations
--------------------------------------------------------------------------------
All representations and warranties in this agreement survive the execution
and delivery of this agreement and the provision of advances and
accommodation.
18. Indemnity and Reimbursement Obligation
--------------------------------------------------------------------------------
Unless stated otherwise, each indemnity, reimbursement or similar
obligation in this agreement:
(a) is a continuing obligation;
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(b) is a separate and independent obligation;
(c) is payable on demand; and
(d) survives termination or discharge of this agreement.
19. Moratorium Legislation
--------------------------------------------------------------------------------
To the full extent permitted by law, all legislation which at any time
directly or indirectly:
(a) lessens, varies or affects in favour of the Trustee any obligation
under a Trust Document; or
(b) delays, prevents or prejudicially affects the exercise by the Redraw
Facility Provider of any right, power or remedy conferred by this
agreement,
is excluded from this agreement.
20. Consents and Opinions
--------------------------------------------------------------------------------
Except where expressly stated the Redraw Facility Provider may give or
withhold, or give conditionally, approvals and consents, may be satisfied
or unsatisfied, may form opinions, and may exercise its rights, powers and
remedies, at its absolute discretion.
21. Assignments
--------------------------------------------------------------------------------
Neither party may assign or transfer any of its rights or obligations
under this agreement without the prior written consent of the other party,
or if the rating of the Notes would be withdrawn or reduced as a result of
the assignment.
22. Notices
--------------------------------------------------------------------------------
All notices, requests, demands, consents, approvals, agreements or other
communications to or by a party to this agreement:
(a) must be in writing;
(b) must be signed by an Authorised Signatory of the sender; and
(c) will be taken to be duly given or made:
(i) (in the case of delivery in person or by post) when
delivered, received or left at the address of the recipient
shown in this agreement or to any other address which it may
have notified the sender;
(ii) (in the case of facsimile transmission) on receipt of a
transmission report confirming successful transmission; and
(iii) (in the case of a telex) on receipt by the sender of the
answerback code of the recipient at the end of transmission,
but if delivery or receipt is on a day on which business is not
generally carried on in the place to which the communication is sent
or is later than 4.00 pm (local time),
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it will be taken to have been duly given or made at the commencement
of business on the next day on which business is generally carried
on in that place.
23. Authorised Signatories
--------------------------------------------------------------------------------
The Trustee irrevocably authorises the Redraw Facility Provider to rely on
a certificate by persons purporting to be its directors and/or secretaries
as to the identity and signatures of its Authorised Signatories. The
Trustee warrants that those persons have been authorised to give notices
and communications under or in connection with this agreement.
24. Governing Law and Jurisdiction
--------------------------------------------------------------------------------
This agreement is governed by the laws of New South Wales. The Trustee
submits to the non-exclusive jurisdiction of courts exercising
jurisdiction there.
25. Counterparts
--------------------------------------------------------------------------------
This agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
26. Acknowledgement by Trustee
--------------------------------------------------------------------------------
The Trustee confirms that:
(a) it has not entered into this agreement in reliance on, or as a
result of, any statement or conduct of any kind of or on behalf of
the Redraw Facility Provider (including any advice, warranty,
representation or undertaking); and
(b) the Redraw Facility Provider is not obliged to do anything
(including disclose anything or give advice),
except as expressly set out in this agreement.
27. Limited Recourse
--------------------------------------------------------------------------------
27.1 General
Clause 33 of the Master Trust Deed applies to the obligations and
liabilities of the Trustee and the Trust Manager under this agreement.
27.2 Liability of Trustee limited to its right to indemnity
(a) The Trustee enters into this agreement only in its capacity as
trustee of the Trust and in no other capacity. A liability arising
under or in connection with this agreement or the Trust can be
enforced against the Trustee only to the extent to which it can be
satisfied out of property of the Trust out of which the Trustee is
actually indemnified for the liability. This limitation of the
Trustee's liability applies despite any other provision of this
agreement and extends to all liabilities
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and obligations of the Trustee in any way connected with any
representation, warranty, conduct, omission, agreement or
transaction related to this agreement or the Trust.
(b) The parties other than the Trustee may not xxx the Trustee in any
capacity other than as trustee of the Trust or seek the appointment
of a receiver (except under the Security Trust Deed), or a
liquidator, an administrator or any similar person to the Trustee or
prove in any liquidation, administration or arrangements of or
affecting the Trustee.
(c) The provisions of this clause 27 shall not apply to any obligation
or liability of the Trustee to the extent that it is not satisfied
because under a Transaction Document or by operation of law there is
a reduction in the extent of the Trustee's indemnification out of
the Assets of the Trust as a result of the Trustee's fraud,
negligence or breach of trust.
(d) It is acknowledged that the Trust Manager, the Servicer, the
Currency Swap Providers, the Note Trustee, the Principal Paying
Agent, the other Paying Agents and the Agent Bank (each a Relevant
Party) are responsible under this agreement and the other
Transaction Documents for performing a variety of obligations
relating to the Trust. No act or omission of the Trustee (including
any related failure to satisfy its obligations under this agreement)
will be considered fraud, negligence or breach of trust of the
Trustee for the purpose of sub-paragraph (c) to the extent to which
the act or omission was caused or contributed to by any failure by
any Relevant Party or any other person who provides services in
respect of the Trust (other than a person who has been delegated or
appointed by the Trustee and for whom the Trustee is responsible
under this agreement or the relevant Transaction Documents, but
excluding any Relevant Party) to fulfil its obligations relating to
the Trust or by any other act or omission of a Relevant Party or any
other person who provides services in respect of the Trust (other
than a person who has been delegated or appointed by the Trustee and
for whom the Trustee is responsible under this agreement or the
relevant Transaction Documents, but excluding any Relevant Party).
(e) No attorney, agent, receiver or receiver and manager appointed in
accordance with this agreement or any other Transaction Documents
(including a Relevant Party) has authority to act on behalf of the
Trustee in a way which exposes the Trustee to any personal liability
and no act or omission of any such person will be considered fraud,
negligence or breach of trust of the Trustee for the purpose of
sub-paragraph (c), if the Trustee has exercised reasonable care in
the selection and supervision of such a person.
27.3 Unrestricted remedies
Nothing in clause 27.2 limits the Redraw Facility Provider in:
(a) obtaining an injunction or other order to restrain any breach of
this agreement by any party;
(b) obtaining declaratory relief; or
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(c) in relation to its rights under the Security Trust Deed.
27.4 Restricted remedies
Except as provided in clause 27.3, the Redraw Facility Provider shall not:
(a) (judgment) obtain a judgment for the payment of money or damages by
the Trustee;
(b) (statutory demand) issue any demand under s459E(1) of the
Corporations Act (or any analogous provision under any other law)
against the Trustee;
(c) (winding up) apply for the winding up or dissolution of the Trustee;
(d) (execution) levy or enforce any distress or other execution to, on,
or against any assets of the Trustee;
(e) (court appointed receiver) apply for the appointment by a court of a
receiver to any of the assets of the Trustee;
(f) (set-off or counterclaim) exercise or seek to exercise any set-off
or counterclaim against the Trustee; or
(g) (administrator) appoint, or agree to the appointment, of any
administrator to the Trustee,
or take proceedings for any of the above and the Redraw Facility Provider
waives its rights to make those applications and take those proceedings.
28. Redraw Facility Provider's Obligations
--------------------------------------------------------------------------------
The Trustee shall have no recourse to the Redraw Facility Provider in
relation to this agreement beyond its terms, and the Redraw Facility
Provider's obligations under this agreement are separate from, and
independent to, any obligations the Redraw Facility Provider may have to
the Trustee for any other reason (including under any other Trust
Document).
29. Successor Trustee
--------------------------------------------------------------------------------
The Redraw Facility Provider shall do all things reasonably necessary to
enable any successor Trustee appointed under clause 24 of the Master Trust
Deed to become the Trustee under this agreement.
EXECUTED in Sydney.
Each attorney executing this agreement states that he has no notice of
revocation or suspension of his power of attorney.
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SIGNED on behalf of )
WESTPAC SECURITIES ADMINISTRATION )
LIMITED )
by its attorney )
in the presence of: ) /s/ Xxxxxx Xxxxxx Xxxxxxxx
-------------------------------
Signature
/s/ Stuart Xxxxxxxx Xxxxxx Xxxxxx Xxxxxxxx
----------------------------------- -------------------------------
Witness Print name
Xxxxxx Xxxxxxxx
-----------------------------------
Print name
SIGNED on behalf of )
WESTPAC BANKING CORPORATION )
by its attorney )
in the presence of: ) /s/ G.P.D. Xxxxxx
-------------------------------
Signature
/s/ Xxxxxx Xxxxxxxx G.P.D. Xxxxxx
----------------------------------- -------------------------------
Witness Print name
Xxxxxx Xxxxxxxx /s/ Xxxxx Xxxxxxx
----------------------------------- -------------------------------
Print name Signature
Xxxxx Xxxxxxx
-------------------------------
Print name
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SIGNED on behalf of )
WESTPAC SECURITISATION MANAGEMENT )
PTY LIMITED )
by its attorney )
in the presence of: ) /s/ G.P.D. Xxxxxx
-------------------------------
Signature
/s/ Xxxxxx Xxxxxxxx G.P.D. Xxxxxx
----------------------------------- -------------------------------
Witness Print name
Xxxxxx Xxxxxxxx
-----------------------------------
Print name
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ANNEXURE A
DRAWDOWN NOTICE
--------------------------------------------------------------------------------
To: Westpac Banking Corporation
REDRAW FACILITY AGREEMENT - DRAWDOWN NOTICE NO. [*]
We refer to the Redraw Facility Agreement dated 2002 (the Facility Agreement).
Under clause 3.1 of the Facility Agreement we give you irrevocable notice as
follows:
(1) we wish to draw on [*] (the Drawdown Date); [NOTE: Date is to be a
Business Day.]
(2) the principal amount of the Redraw Advance is $[*]; [NOTE: Amount to
comply with the limits in clause 3.]
(3) we request that the proceeds be remitted to account number [*] at [*];
[NOTE: The account(s) to be completed only if funds not required in repayment of
any previous Redraw Advance(s).]
(4) we represent and warrant that no Event of Default [under the Facility
Agreement, and no Event of Default as defined in the Security Trust Deed],
subsists or will result from the drawing; and
(5) all representations and warranties under clause 11 of the Facility
Agreement are true as though they had been made at the date of this
Drawdown Notice and the Drawdown Date specified above in respect of the
facts and circumstances then subsisting.
Definitions in the Facility Agreement apply in this Drawdown Notice.
WESTPAC SECURITIES ADMINISTRATION LIMITED as trustee of the Series 0000-0X
XXX Trust
By: [Authorised Signatory]
DATED
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ANNEXURE B
VERIFICATION CERTIFICATE
--------------------------------------------------------------------------------
To: Westpac Banking Corporation
REDRAW FACILITY AGREEMENT
I [*] am a [director] of Westpac Securities Administration Limited of [*] (the
Company).
I refer to the Redraw Facility Agreement (the Facility Agreement) dated
2002 between the Company as Trustee, Westpac Banking Corporation and Westpac
Securitisation Management Pty Limited.
Definitions in the Facility Agreement apply in this Certificate.
I CERTIFY as follows.
1. Attached to this Certificate are complete and up to date copies of:
(a) unless paragraph 2 below applies, the constitution of the Company
(marked A); and
(b) a power of attorney granted by the Company for the execution of the
Facility Agreement to which it is expressed to be a party (marked
B). That power of attorney has not been revoked or suspended by the
Company and remains in full force and effect.
2. If the constitution of the Company is not attached to this certificate,
there has been no change to them since the Company last gave a certified
copy of them to Westpac Banking Corporation.
3. The following are signatures of the Authorised Signatories of the
Company and the persons who have been authorised to sign the Facility
Agreement and to give notices and communications under or in connection
with the Facility Agreement. If no signatures are set out below, the
Authorised Signatories with respect to the Facility Agreement are the
same as in relation to the Series 0000-0X XXX Xxxxx, a copy of those
signatures having previously been provided to Westpac Banking
Corporation.
Authorised Signatories
Name Position Signature
* *
----------------------
* *
----------------------
* *
----------------------
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Signatories
Name Position Signature
* *
----------------------
* *
----------------------
* *
----------------------
Signed:
--------------------------
Director
--------------------------
Print name
DATED
--------------------------------------------------------------------------------
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