XXXXXXX XXX
Medallion Trust Series [__]
Liquidity Facility Agreement
Commonwealth Bank of Australia
ABN 48 123 123 124
Perpetual Trustee Company Limited
ABN 42 000 001 007
Securitisation Advisory Services Pty. Limited
ABN 88 064 133 946
If you have any questions about the details of this document
PLEASE CONTACT[_________________________] ON + 61 2 9353 4000
Xxxxxxx Xxx
Lawyers
Levels 19-35 No. 0 X'Xxxxxxx Xxxxxx Xxxxxx XXX 0000 Xxxxxxxxx
XX Xxx X0 Xxxxxxxxx Xxxxxx Xxxxxx XXX 0000
T + 61 2 9353 4000 F + 61 2 8220 6700
XXX.XXXXXXXXXX.XXX
Our reference [______________]
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION......................................... 1
1.1 Definitions.................................................... 1
1.2 Series Supplement and Master Trust Deed Definitions............ 4
1.3 Interpretation................................................. 5
1.4 Trustee Capacity............................................... 6
1.5 Master Trust Deed and Series Supplement........................ 6
1.6 Incorporated Definitions and other Transaction Documents
and provisions.............................................. 7
2. THE FACILITY........................................................... 7
2.1 Amount......................................................... 7
2.2 Method of Making Advances...................................... 7
2.3 Purpose........................................................ 7
2.4 Termination of the Facility.................................... 7
3. CONDITIONS PRECEDENT................................................... 7
3.1 Conditions Precedent to first Advance.......................... 7
3.2 Conditions Precedent to all Advances........................... 8
4. DRAWDOWN............................................................... 8
4.1 Preparation of Drawdown Notices................................ 8
4.2 Service of Drawdown Notices.................................... 8
4.3 Requirements of Drawdown Notices............................... 8
4.4 Availability of Drawing........................................ 9
4.5 Payment of Drawing............................................. 9
5. INTEREST............................................................... 9
5.1 Interest Period................................................ 9
5.2 Calculation of Interest........................................ 10
5.3 Payment of Interest............................................ 10
5.4 Interest on Unpaid Interest.................................... 10
5.5 Interest on Overdue Sums....................................... 10
6. REPAYMENT OF DRAWINGS AND ADVANCES..................................... 10
6.1 Repayment of Drawings during the Availability Period........... 10
6.2 Re-Drawing..................................................... 10
6.3 Repayment on Termination....................................... 10
6.4 Payments Under Security Trust Deed............................. 11
7. CASH ADVANCE DEPOSIT PERIOD............................................ 11
7.1 Cash Advance Deposit Upon Ratings Downgrade.................... 11
7.2 Withdrawal from the Collections Account........................ 11
7.3 Drawings During the Cash Advance Deposit Period................ 11
7.4 Liquidity Facility Provider Upgrade............................ 12
7.5 Reduction in Facility Limit During Cash Advance Deposit
Period...................................................... 12
7.6 Termination of Agreement....................................... 12
7.7 Interest on Cash Advance Deposit............................... 12
8. PAYMENTS............................................................... 13
8.1 Time on Due Date and Free of Set-off & Taxes................... 13
8.2 Certificate.................................................... 13
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9. ILLEGALITY AND INCREASED COST.......................................... 13
9.1 Illegality..................................................... 13
9.2 Increased Cost................................................. 13
10. FEES................................................................... 14
11. REPRESENTATIONS AND WARRANTIES......................................... 14
11.1 General Representations and Warranties......................... 14
11.2 Corporate Representations and Warranties....................... 15
11.3 Series Trust Representations and Warranties.................... 15
11.4 Liquidity Facility Provider.................................... 15
11.5 Representations and Warranties Repeated........................ 16
12. UNDERTAKINGS........................................................... 16
12.1 General........................................................ 16
12.2 Manager's Undertakings after Manager Event..................... 16
12.3 Liquidity Facility Provider Undertaking........................ 17
13. EVENTS OF DEFAULT...................................................... 17
13.1 Events of Default.............................................. 17
13.2 Consequences of Event of Default............................... 18
14. TERMINATION BY TRUSTEE................................................. 18
14.1 Trustee may declare a Termination Date......................... 18
14.2 Requirements for termination................................... 18
15. TRUSTEE PROVISIONS..................................................... 18
15.1 Limitation on Trustee's Liability.............................. 18
15.2 Claims against Trustee......................................... 19
15.3 Breach of Trust................................................ 19
15.4 Acts or omissions.............................................. 19
15.5 No authority................................................... 19
15.6 No obligation.................................................. 19
16. ASSIGNMENT............................................................. 19
16.1 Assignment by Trustee.......................................... 19
16.2 Assignment by Liquidity Facility Provider...................... 20
17. NOTICES................................................................ 20
17.1 Method of Delivery............................................. 20
17.2 Deemed Receipt................................................. 20
17.3 Email.......................................................... 21
18. INDEMNITY.............................................................. 21
18.1 Indemnity on Demand............................................ 21
18.2 Losses on Liquidation or Re-employment of Deposits............. 21
18.3 Payment on Quarterly Distribution Date......................... 21
19. MISCELLANEOUS.......................................................... 22
19.1 Stamp Duties................................................... 22
19.2 Waiver......................................................... 22
19.3 Written Waiver, Consent and Approval........................... 22
19.4 Severability................................................... 22
19.5 Survival of Indemnities........................................ 22
19.6 Successors and Assigns......................................... 22
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19.7 Moratorium Legislation......................................... 22
19.8 Amendments..................................................... 23
19.9 Governing Law.................................................. 23
19.10 Jurisdiction................................................... 23
19.11 Counterparts................................................... 23
19.12 Contra proferentem............................................. 23
19.13 Know your customer............................................. 23
19.14 Compliance with Regulation AB.................................. 24
SCHEDULE................................................................... 25
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LIQUIDITY FACILITY AGREEMENT MADE AT SYDNEY ON [__________]
PARTIES COMMONWEALTH BANK OF AUSTRALIA ABN 48 123 123 124 of Xxxxx 0, 00
Xxxxxx Xxxxx, Xxxxxx, XXX 0000 Xxxxxxxxx ("LIQUIDITY FACILITY
PROVIDER")
PERPETUAL TRUSTEE COMPANY LIMITED ABN 42 000 001 007 of Xxxxx 00,
000 Xxxx Xxxxxx, Xxxxxx XXX 0000 Xxxxxxxxx in its capacity as
trustee of the Series Trust ("TRUSTEE")
SECURITISATION ADVISORY SERVICES PTY. LIMITED ABN 88 064 133 946 of
Xxxxx 0, 00 Xxxxxx Xxxxx, Xxxxxx XXX 0000 Xxxxxxxxx ("SAS" and also
hereinafter included within the expression the "MANAGER")
BACKGROUND
A. The Trustee and the Manager are respectively the trustee and the manager
of the Series Trust.
B. The Manager has requested the Liquidity Facility Provider to provide the
Trustee with the Facility in connection with the Approved Purpose.
C. The Liquidity Facility Provider has agreed to provide the Facility to the
Trustee on the terms and conditions contained in this Agreement.
OPERATIVE PROVISIONS
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement, unless the contrary intention appears:
"ADVANCE" means the principal amount of each advance to the Trustee by the
Liquidity Facility Provider in accordance with this Agreement or so much
of each such advance as remains outstanding from time to time.
"APPROVED PURPOSE" means the use of a Drawing to meet a Gross Income
Shortfall in accordance with the Series Supplement or to fund a Cash
Advance Deposit in accordance with this Agreement.
"AUTHORISED OFFICER" in relation to the Liquidity Facility Provider means
any person from time to time appointed by the Liquidity Facility Provider
to act as its Authorised Officer for the purposes of this Agreement and
notified to the Trustee.
"AVAILABILITY PERIOD" means the period commencing on the date of this
Agreement and ending on the Termination Date.
"BBSW" in relation to an Interest Period means the rate appearing at
approximately 10.00 am on the first day of that Interest Period on the
Reuters Screen page "BBSW" as being the average of the mean buying and
selling rates appearing on that page for a xxxx of exchange having a tenor
of:
(a) in relation to an Interest Period commencing on a Monthly
Distribution Date which immediately precedes a Quarterly Distribution
Date, one month;
(b) in relation to an Interest Period commencing on a Monthly
Distribution Date which is also a Quarterly Distribution Date, three
months; and
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(c) in relation to an Interest Period commencing on any other Monthly
Distribution Date, one and three months, in which case "BBSW" in
relation to that Interest Period will be determined by the Manager by
straight-line interpolation between the BBSW determined for a xxxx of
exchange having a tenor of one month and the BBSW determined for a
xxxx of exchange having a tenor of three months.
If on the first day of an Interest Period fewer than four banks are quoted
on the Reuters Screen page "BBSW" or for any other reason "BBSW" for an
Interest Period cannot be determined in accordance with the foregoing
provisions, then "BBSW" for that Interest Period means such rate as is
specified by the Liquidity Facility Provider having regard to comparable
indices then available.
"CASH ADVANCE DEPOSIT" means at any time that amount of the Collections
Account of the Series Trust that comprises at that time Advances by way of
deposits by the Liquidity Facility Provider to the Collections Account of
the Series Trust in accordance with clause 7.1 (after taking into account
any application of the Cash Advance Deposit in accordance with clause 7.3
or repayment of it in accordance with either of clauses 7.4 or 7.5).
"CASH ADVANCE DEPOSIT PERIOD" means each period commencing immediately
following a Cash Advance Deposit and ending on the date on which the
Trustee is obliged to repay to the Liquidity Facility Provider the Cash
Advance Deposit pursuant to clause 7.4.
"DESIGNATED CREDIT RATING" means a short term credit rating of A-1+ by
S&P, F1+ by Fitch and P-1 by Xxxxx'x or such other credit rating agreed to
between the Trustee, the Manager and the relevant Rating Agency.
"DIRECT ADVANCE" means an Advance by way of a deposit by the Liquidity
Facility Provider to the Collections Account of the Series Trust in
accordance with clause 4.5(a).
"DRAWDOWN DATE" means, in relation to a Drawing or proposed Drawing, the
Monthly Distribution Date immediately following the delivery of the
corresponding Drawdown Notice to the Liquidity Facility Provider in
accordance with this Agreement.
"DRAWDOWN NOTICE" means a notice given under clause 4.
"DRAWING" means:
(a) other than during the Cash Advance Deposit Period, a Direct Advance
or a proposed Direct Advance (as the case may be); and
(b) during the Cash Advance Deposit Period, a withdrawal or proposed
withdrawal (as the case may be) from the Cash Advance Deposit in the
Collections Account of the Series Trust by the Trustee in accordance
with clause 7.3.
"EFFECTIVE CONTROL" means:
(a) control of the composition of the board of directors of SAS;
(b) control of more than half of the voting power of SAS; or
(c) control of more than half of the issued share capital of SAS
excluding any part of such issued share capital which carries no
right to participate beyond a specified amount in the distribution of
either profit or capital.
"EVENT OF DEFAULT" means any of the events set out or referred to in
clause 13.1 as an Event of Default.
"FACILITY" means the standby liquidity facility granted to the Trustee by
the Liquidity Facility
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Provider on the terms and conditions of this Agreement.
"FACILITY LIMIT" means at any given time the lesser of the following:
(a) A$[_]; and
(b) the Performing Mortgage Loans Amount at that time,
or such greater or lesser amount from time to time agreed in writing
between the Manager, the Liquidity Facility Provider and the Rating
Agencies.
"INTEREST PERIOD" in relation to a Drawing means each period determined in
relation to that Drawing in accordance with clause 5.1.
"LIQUIDITY AMOUNT" means, for a Drawdown Date, the lesser of:
(a) the then un-utilised portion of the Facility Limit or if the Drawdown
Date is during the Cash Advance Deposit Period, the then un-utilised
portion of the Cash Advance Deposit; and
(b) the Gross Income Shortfall on the preceding Determination Date.
"MANAGER" means SAS or if SAS retires or is removed as manager of the
Series Trusts (as defined in the Master Trust Deed), any then Substitute
Manager, and includes the Trustee when acting as the manager of the Series
Trust in accordance with the provisions of the Master Trust Deed.
"MANAGER EVENT" means:
(a) SAS ceases to be a body over which the Liquidity Facility Provider
has Effective Control; or
(b) SAS ceases to be the manager of the Series Trust.
"MASTER TRUST DEED" means the Master Trust Deed dated 8 October 1997
between the Trustee and SAS, as amended from time to time.
"OBLIGATIONS" means all of the liabilities of the Trustee to the Liquidity
Facility Provider under this Agreement and, without limiting the
generality of the foregoing, includes any liabilities which:
(a) are liquidated;
(b) are present, prospective or contingent;
(c) relate to the payment of money or the performance or omission of any
act;
(d) sound in damages only; or
(e) accrue as a result of any Event of Default.
"PERFORMING MORTGAGE LOANS AMOUNT" means at any time the aggregate of the
following:
(a) the amount outstanding under Mortgage Loans forming part of the
Assets of the Series Trust in relation to which no payment due from
the relevant Borrower has been in arrears by more than 90 days; and
(b) the amount outstanding under Mortgage Loans forming part of the
Assets of the
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Series Trust in relation to which a payment due from the relevant
Borrower has been in arrears by more than 90 days and which are
insured under a Mortgage Insurance Policy.
"PRESCRIBED RATE" in relation to an Interest Period means the sum of:
(a) BBSW for that Interest Period; and
(b) [_]% per annum,
or such rate as is otherwise agreed by the Trustee, the Manager and the
Liquidity Facility Provider provided that each Rating Agency is given not
less than 3 Business Days prior notice by the Manager of any variation to
the Prescribed Rate and the Prescribed Rate will not be varied if such
variation would result in a reduction, qualification or withdrawal by a
Rating Agency of its then current credit rating of a Security.
"RECEIVER" means a person appointed under or by virtue of the Security
Trust Deed as a receiver or receiver and manager.
"SERIES SUPPLEMENT" means the Series Supplement dated on or about the date
of this Agreement between the Liquidity Facility Provider (as a Seller and
the Servicer), Homepath Pty Limited ABN 35 081 986 530, SAS and the
Trustee.
"SERIES TRUST" means the trust known as the Medallion Trust Series [_]
established pursuant to the Master Trust Deed and the Series Supplement.
"SPECIFIED RATE" means, on any day, the sum of:
(a) BBSW for the Interest Period that includes that day (or if the day is
not within an Interest Period, BBSW for the first Business Day of the
month that includes that day as if that month were an Interest
Period); and
(b) [_]% per annum.
"TERMINATION DATE" means the earliest of:
(a) the Scheduled Maturity Date;
(b) the date declared or appointed by the Liquidity Facility Provider or
the Trustee to be the Termination Date in accordance with this
Agreement;
(c) the date which is one month after the date on which all Securities
have been redeemed in full in accordance with the Series Supplement
or the Offered Note Conditions (as the case may be); and
(d) the date on which the Facility Limit is reduced to zero in accordance
with this Agreement.
1.2 SERIES SUPPLEMENT AND MASTER TRUST DEED DEFINITIONS
Subject to clause 1.6, unless defined in this Agreement, words and phrases
defined in either or both of the Master Trust Deed and the Series
Supplement have the same meaning in this Agreement. Where there is any
inconsistency in a definition between this Agreement (on the one hand) and
the Master Trust Deed or the Series Supplement (on the other hand), this
Agreement prevails. Where there is any inconsistency in a definition
between the Master Trust Deed and the Series Supplement, the Series
Supplement prevails over the Master Trust Deed in respect of this
Agreement. Subject to clause 1.6, where words or phrases used but not
defined in this Agreement are defined in the Master Trust Deed in relation
to a Series Trust (as defined
4
in the Master Trust Deed) and/or an Other Trust such words or phrases are
to be construed in this Agreement, where necessary, as being used only in
relation to the Series Trust (as defined in this Agreement) and/or the CBA
Trust, as the context requires.
1.3 INTERPRETATION
In this Agreement, unless the contrary intention appears:
(a) headings are for convenience only and do not affect the
interpretation of this Agreement;
(b) a reference to this "AGREEMENT" includes the Background and the
Schedule;
(c) the expression "PERSON" includes an individual, the estate of an
individual, a body politic, a corporation and a statutory or other
authority or association (incorporated or unincorporated);
(d) a reference to a person includes that person's executors,
administrators, successors, substitutes and assigns, including any
person taking by way of novation;
(e) subject to clause 1.6, a reference to any document or agreement is to
such document or agreement as amended, novated, supplemented, varied
or replaced from time to time;
(f) a reference to any legislation or to any section or provision of any
legislation includes any statutory modification or re-enactment or
any statutory provision substituted for that legislation and all
ordinances, by-laws, regulations and other statutory instruments
issued under that legislation, section or provision;
(g) words importing the singular include the plural (and vice versa) and
words denoting a given gender include all other genders;
(h) a reference to a clause is a reference to a clause of this Agreement;
(i) the expression "CERTIFIED" means, in respect of a person, certified
in writing by two Authorised Officers of that person or by legal
counsel acting for that person and "CERTIFY" and like expressions
will be construed accordingly;
(j) a reference to "WILFUL DEFAULT" in relation to the Trustee or the
Manager, means, subject to clause 1.3(k) any wilful failure by the
Trustee to comply with, or wilful breach by the Trustee or the
Manager (as the case may be) of any of its obligations under any
Transaction Document, other than a failure or breach which:
(i) A. arises as a result of a breach of a Transaction Document
by a person other than:
1) the Trustee or the Manager (as the case may be); or
2) any other person referred to in clause 1.3(k);
B. the performance of the action (the non-performance of
which gave rise to such breach) is a pre-condition to the
Trustee or the Manager (as the case may be) performing the
said obligation; or
(ii) is in accordance with a lawful court order or direction or is
required by law; or
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(iii) is in accordance with a proper instruction or direction of
Investors given at a meeting convened under any Transaction
Document;
(k) a reference to the "FRAUD", "NEGLIGENCE" or "WILFUL DEFAULT" of the
Trustee means the fraud, negligence or wilful default of the Trustee
and of its officers, employees, agents and any other person where the
Trustee is liable for the acts or omissions of such other person
under the terms of any Transaction Document;
(l) where any word or phrase is given a defined meaning, any other part
of speech or other grammatical form in respect of such word or phrase
has a corresponding meaning;
(m) where any day on which a payment is due to be made or a thing is due
to be done under this Agreement is not a Business Day, that payment
must be made or that thing must be done on the immediately succeeding
Business Day;
(n) a reference to the "CLOSE OF BUSINESS" on any day is a reference to
5.00 pm on that day;
(o) a reference to time is to local time in Sydney; and
(p) subject to clause 17.2, each party will only be considered to have
knowledge or awareness of, or notice of, a thing or grounds to
believe anything by virtue of the officers of that party (or any
Related Body Corporate of that party) which have day to day
responsibility for the administration or management of that party's
(or a Related Body Corporate of that party's) obligations in relation
to the Series Trust or the Liquidity Facility having actual
knowledge, actual awareness or actual notice of that thing, or
grounds or reason to believe that thing (and similar references will
be interpreted in this way). In addition, notice, knowledge or
awareness of an Event of Default, Manager Default, Servicer Default
or Perfection of Title Event means notice, knowledge or awareness of
the occurrence of the events or circumstances constituting an Event
of Default, Manager Default, Servicer Default or Perfection of Title
Event (as the case may be).
1.4 TRUSTEE CAPACITY
In this Agreement, except where provided to the contrary:
(a) (REFERENCES TO TRUSTEE): a reference to the Trustee is a reference to
the Trustee in its capacity as trustee of the Series Trust only, and
in no other capacity; and
(b) (REFERENCES TO ASSETS OF TRUSTEE): a reference to the undertaking,
assets, business or money of the Trustee is a reference to the
undertaking, assets, business or money of the Trustee in the capacity
referred to in paragraph (a).
1.5 MASTER TRUST DEED AND SERIES SUPPLEMENT
For the purposes of the Master Trust Deed and the Series Supplement:
(a) (TRANSACTION DOCUMENT): this Agreement is a Transaction Document; and
(b) (SUPPORT FACILITY): the Facility made available pursuant to the terms
of this Agreement is a Support Facility.
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1.6 INCORPORATED DEFINITIONS AND OTHER TRANSACTION DOCUMENTS AND PROVISIONS
Where in this Agreement a word or expression is defined by reference to
its meaning in another Transaction Document or there is a reference to
another Transaction Document or to a provision of another Transaction
Document, any amendment to the meaning of that word or expression or to
that other Transaction Document or provision (as the case may be) will be
of no effect for the purposes of this Agreement unless and until the
amendment is consented to by the parties to this Agreement.
2. THE FACILITY
2.1 AMOUNT
Subject to this Agreement, the Liquidity Facility Provider agrees to make
Advances to the Trustee up to an aggregate principal amount equal to the
Facility Limit.
2.2 METHOD OF MAKING ADVANCES
Advances under the Facility will be by way of either Direct Advances or
Cash Advance Deposits.
2.3 PURPOSE
The Manager will direct the Trustee to use, and the Trustee will use, the
proceeds of each Drawing under the Facility exclusively for the Approved
Purpose.
2.4 TERMINATION OF THE FACILITY
The Facility will terminate on the Termination Date.
3. CONDITIONS PRECEDENT
3.1 CONDITIONS PRECEDENT TO FIRST ADVANCE
The Liquidity Facility Provider is not obliged to make the first Advance
to the Trustee unless the Liquidity Facility Provider has received each of
the following, in form and substance acceptable to the Liquidity Facility
Provider:
(a) (THIS AGREEMENT): this Agreement duly executed and delivered by the
Trustee and the Manager;
(b) (POWER OF ATTORNEY): a copy of each power of attorney under which
this Agreement has been or will be executed by the Trustee and the
Manager, certified as a true copy by the Trustee and the Manager
respectively;
(c) (AUTHORISED OFFICERS): a list of the Authorised Officers of the
Manager;
(d) (SECURITY TRUST DEED): a copy of the Security Trust Deed executed by
the parties thereto and certified as a true copy by the Manager;
(e) (POOL MORTGAGE INSURANCE POLICY): an executed original counterpart of
the Pool Mortgage Insurance Policy together with a letter from PMI
confirming that it has accepted for insurance under the Pool Mortgage
Insurance Policy the Mortgage Loans referred to in the certificate
attached to the letter; and
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(f) (LEGAL OPINION): a legal opinion addressed to the Liquidity Facility
Provider from the Trustee's solicitors in form and substance
satisfactory to the Liquidity Facility Provider.
3.2 CONDITIONS PRECEDENT TO ALL ADVANCES
The obligation of the Liquidity Facility Provider to make each Advance is
subject to the further conditions precedent that:
(a) (REPRESENTATIONS AND WARRANTIES TRUE): the representations and
warranties made or deemed to be made by the Trustee or the Manager in
any Transaction Document are true and correct as of the date of the
corresponding Drawdown Notice and Drawdown Date as though made at
that date;
(b) (NO EVENT OF DEFAULT): no Event of Default is subsisting at the date
of the corresponding Drawdown Notice and Drawdown Date or will result
from the provision or continuation of the Advance; and
(c) (NO NOTICE OF SECURITY INTERESTS): other than in respect of
priorities granted by statute, the Liquidity Facility Provider has
not received notice from any person that it claims to have a Security
Interest ranking in priority to or equal with the Security Interest
held by the Liquidity Facility Provider under the Security Trust
Deed.
4. DRAWDOWN
4.1 PREPARATION OF DRAWDOWN NOTICES
If on a Determination Date the Manager determines in accordance with the
Series Supplement that a Gross Income Shortfall has occurred in respect of
the Collection Period just ended the Manager must:
(a) (PREPARE DRAWDOWN NOTICE): prepare a Drawdown Notice in accordance
with clause 4.3 requesting a Drawing on the next Monthly Distribution
Date; and
(b) (DELIVER DRAWDOWN NOTICE): deliver the Drawdown Notice to the Trustee
no later than the close of business on the Business Day which is not
less than 3 Business Days before the proposed Drawdown Date.
4.2 SERVICE OF DRAWDOWN NOTICES
If the Trustee receives a Drawdown Notice from the Manager pursuant to
clause 4.1, it must:
(a) (SIGN DRAWDOWN NOTICE): sign the Drawdown Notice in accordance with
clause 4.3(b); and
(b) (DELIVER DRAWDOWN NOTICE): deliver the signed Drawdown Notice to the
Liquidity Facility Provider by the time specified in clause 4.4(a).
4.3 REQUIREMENTS OF DRAWDOWN NOTICES
A Drawdown Notice must:
(a) (FORM): be in the form of the Schedule (or in such other form as from
time to time agreed amongst the Liquidity Facility Provider, the
Manager and the Trustee);
(b) (AUTHORISED OFFICER): be signed by an Authorised Officer of the
Trustee;
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(c) (SPECIFY DRAWDOWN DATE): specify the proposed Drawdown Date for the
requested Advance which must be the next Monthly Distribution Date;
(d) (IRREVOCABLE): be irrevocable;
(e) (LIQUIDITY AMOUNT): specify the Liquidity Amount; and
(f) (CALCULATION): provide details of the calculation of the Liquidity
Amount.
4.4 AVAILABILITY OF DRAWING
The Trustee may make a Drawing on any Monthly Distribution Date during the
Availability Period provided that:
(a) (RECEIPT OF DRAWDOWN NOTICE): the Liquidity Facility Provider has
received, not later than 11.00 am on the Business Day which is not
less than 2 Business Days before the proposed Drawdown Date (or such
later time as the Liquidity Facility Provider may agree), a duly
completed Drawdown Notice; and
(b) (CONDITIONS PRECEDENT): the requirements of clause 3 have been
satisfied or waived in writing by the Liquidity Facility Provider
before the Drawdown Notice is given.
4.5 PAYMENT OF DRAWING
After receipt of a Drawdown Notice:
(a) (DEPOSIT TO COLLECTIONS ACCOUNT): other than during a Cash Advance
Deposit Period, the amount of a Drawing requested in a Drawdown
Notice will be deposited by the Liquidity Facility Provider in the
Collections Account in immediately available funds no later than
10.00 am on the Drawdown Date; and
(b) (SATISFIED FROM CASH ADVANCE DEPOSIT): during a Cash Advance Deposit
Period, the amount of a Drawing requested in a Drawdown Notice will
be satisfied from the Cash Advance Deposit in accordance with clause
7.
5. INTEREST
5.1 INTEREST PERIOD
(a) (DURATION): The duration that a Drawing is outstanding is divided
into successive Interest Periods.
(b) (FIRST INTEREST PERIOD): The first Interest Period for a Drawing
commences on (and includes) the Drawdown Date of that Drawing and
ends on (but excludes) the next Quarterly Distribution Date.
(c) (SUCCEEDING INTEREST PERIODS): Each succeeding Interest Period for a
Drawing commences on (and includes) a Quarterly Distribution Date and
ends on (but excludes) the next following Quarterly Distribution
Date.
(d) (LAST INTEREST PERIOD): The last Interest Period for a Drawing ends
on (but excludes) the first Quarterly Distribution Date that:
(i) follows the Termination Date; and
(ii) upon which all moneys the payment or repayment of which form
part of
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the Obligations are paid or repaid in full to the Liquidity
Facility Provider.
5.2 CALCULATION OF INTEREST
Interest in respect of a Drawing accrues from day to day in respect of
each Interest Period at the Prescribed Rate for that Interest Period on
the amount of the Drawing on that day and based on a 365 day year.
5.3 PAYMENT OF INTEREST
The Trustee at the direction of the Manager will on each Quarterly
Distribution Date pay to the Liquidity Facility Provider so much of the
then accrued interest on each Drawing as is available for this purpose in
accordance with the Series Supplement.
5.4 INTEREST ON UNPAID INTEREST
If any payment by the Trustee on a Quarterly Distribution Date pursuant to
clause 5.3 is insufficient to pay the full amount of the then accrued
interest on a Drawing, such unpaid accrued interest will in turn accrue
interest (as a separate and independent obligation) until paid at the
Prescribed Rate for each succeeding Interest Period and if not paid on the
Quarterly Distribution Date at the end of each such succeeding Interest
Period, will itself bear interest in accordance with this clause.
5.5 INTEREST ON OVERDUE SUMS
If the Trustee fails to pay any amount due and payable by it under or in
respect of this Agreement at the time and in the manner required under
this Agreement and the Series Supplement, other than as described in
clause 5.4, that amount will bear interest in accordance with this clause.
Such interest is payable on demand and will accrue on such amount from day
to day at the Specified Rate for that day from the date such amount is due
for payment up to the date of actual payment, before and (as a separate
and independent obligation) after judgment and if not paid at the end of a
30 day period will itself bear interest in accordance with this clause.
6. REPAYMENT OF DRAWINGS AND ADVANCES
6.1 REPAYMENT OF DRAWINGS DURING THE AVAILABILITY PERIOD
The Trustee will on each Quarterly Distribution Date repay so much of each
outstanding Drawing as at the previous Determination Date as is available
for this purpose in accordance with the Series Supplement. If a repayment
of all or part of a Drawing in accordance with the foregoing falls on a
Quarterly Distribution Date within the Cash Advance Deposit Period, such
repayment will be made by way of allocation to the Cash Advance Deposit in
accordance with clause 7.3(c).
6.2 RE-DRAWING
Amounts repaid pursuant to clause 6.1 may be redrawn by the Trustee in
accordance with the terms of this Agreement.
6.3 REPAYMENT ON TERMINATION
Notwithstanding clause 6.1, on the Quarterly Distribution Date immediately
following the Termination Date (or if the Termination Date is on a
Quarterly Distribution Date, then on that Quarterly Distribution Date),
the Trustee will pay or repay so much of the aggregate of all
10
Advances together with interest accrued thereon and all other money, the
payment or repayment of which forms part of the Obligations, as is
available for this purpose in accordance with the Series Supplement. If
all amounts due in accordance with this clause 6.3 are not paid or repaid
in full on the Quarterly Distribution Date in accordance with the
foregoing, on each succeeding Quarterly Distribution Date the Trustee will
pay or repay so much of such amounts as there are funds available for this
purpose in accordance with the Series Supplement until such amounts are
paid or repaid in full.
6.4 PAYMENTS UNDER SECURITY TRUST DEED
Without prejudice to clause 15, the limitation of the Trustee's liability
to make payments under this Agreement will not apply for the purposes of
calculating any amounts payable out of the Assets of the Series Trust to
the Liquidity Facility Provider pursuant to the Security Trust Deed.
7. CASH ADVANCE DEPOSIT PERIOD
7.1 CASH ADVANCE DEPOSIT UPON RATINGS DOWNGRADE
(a) (RATING DOWNGRADE): If at any time the Liquidity Facility Provider
ceases to have the Designated Credit Rating, the Liquidity Facility
Provider must within 5 Business Days thereafter (or such longer
period as the Rating Agencies may agree), in satisfaction of its
obligation to make Advances during the Cash Advance Deposit Period,
deposit in the Collections Account of the Series Trust, as an Advance
under the Facility, an amount equal to the then un-utilised portion
of the Facility Limit.
(b) (SUBSEQUENT RATING DOWNGRADE FOLLOWING UPGRADE): If at any time
following the application of clause 7.4 the Liquidity Facility
Provider ceases to have the Designated Credit Rating, the Liquidity
Facility Provider must within 5 Business Days (or such longer period
as the Rating Agencies may agree) make a deposit in the Collections
Account in the manner, and on the same terms as, provided in clause
7.1(a).
7.2 WITHDRAWAL FROM THE COLLECTIONS ACCOUNT
The Manager may only direct the Trustee to, and the Trustee may only, make
withdrawals from the Cash Advance Deposit in the Collection Account as
follows:
(a) (FOR A DRAWING): for the purposes of a Drawing pursuant to clause
4.5(b) of a Liquidity Amount for the Approved Purpose and otherwise
upon and subject to the terms of this Agreement;
(b) (REPAY CASH ADVANCE DEPOSIT): to repay to the Liquidity Facility
Provider the Cash Advance Deposit pursuant to clauses 7.4, 7.5 and
7.6; or
(c) (IF NEW COLLECTIONS ACCOUNT): to be paid into a new Collections
Account opened in accordance with the Series Supplement.
7.3 DRAWINGS DURING THE CASH ADVANCE DEPOSIT PERIOD
During a Cash Advance Deposit Period:
(a) (DRAWING TO BE SATISFIED FROM CASH ADVANCE DEPOSIT): any Drawing
pursuant to a Drawdown Notice must be satisfied from the Cash Advance
Deposit deposited in the Collections Account;
(b) (AMOUNT APPLIED CONSTITUTES A DRAWING): the amount applied from the
Cash
11
Advance Deposit in accordance with clause 7.3(a) constitutes a
Drawing, and the provisions of this Agreement (including, but not
limited to, clauses 5 and 6 of this Agreement) will apply
accordingly;
(c) (CASH ADVANCE DEPOSIT TO BE CREDITED): any full or partial repayment
of a Drawing required to be made by the Trustee in accordance with
this Agreement will, following receipt by the Trustee of a written
direction from the Manager, be applied in accordance with clause 6.1
by way of allocation by the Trustee of the relevant amount for credit
of that part of the Collections Account comprising the Cash Advance
Deposit; and
(d) (EFFECT OF ALLOCATION): an allocation by the Trustee in accordance
with clause 7.3(c) will, to the extent of the amount so allocated,
satisfy the obligation of the Trustee under this Agreement as regards
the repayment of the Drawing in respect of which the deposit is made,
but will not reduce or affect the obligations of the Trustee to pay
to the Liquidity Facility Provider the Cash Advance Deposit in
accordance with clauses 6.3, 7.4, 7.5, 7.6 and 13.2.
7.4 LIQUIDITY FACILITY PROVIDER UPGRADE
If, at any time during a Cash Advance Deposit Period, the Liquidity
Facility Provider obtains the Designated Credit Rating, the Manager will
direct the Trustee to repay (and upon the receipt of such direction the
Trustee will repay) from the Collections Account of the Series Trust the
then Cash Advance Deposit (which has not previously been utilised in
accordance with this Agreement) together with all accrued, but unpaid,
interest on that amount determined in accordance with clause 7.7.
7.5 REDUCTION IN FACILITY LIMIT DURING CASH ADVANCE DEPOSIT PERIOD
If immediately prior to any Quarterly Distribution Date during a Cash
Advance Deposit Period the then un-utilised portion of the Cash Advance
Deposit plus the amount of all outstanding Drawings exceeds the then
Facility Limit, the Manager will direct the Trustee to repay (and upon
receipt of such direction the Trustee will repay) from the Cash Advance
Deposit on the Quarterly Distribution Date to the Liquidity Facility
Provider the amount of the excess.
7.6 TERMINATION OF AGREEMENT
If the Termination Date occurs during a Cash Advance Deposit Period the
Manager will direct the Trustee to repay (and within 2 Business Days of
receipt of such direction the Trustee will repay) from the Collections
Account of the Series Trust the then Cash Advance Deposit (which has not
previously been utilised in accordance with this Agreement) together with
all accrued, but unpaid, interest on that amount determined in accordance
with clause 7.7 and any other amounts then due under this Agreement.
7.7 INTEREST ON CASH ADVANCE DEPOSIT
The Cash Advance Deposit will accrue interest at the rate and in
accordance with the manner of determination of interest then applicable
for amounts deposited to the Collections Account during the Cash Advance
Deposit Period. Such interest will be paid to the Liquidity Facility
Provider, in accordance with the Series Supplement, on each Quarterly
Distribution Date during such period.
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8. PAYMENTS
8.1 TIME ON DUE DATE AND FREE OF SET-OFF & TAXES
All payments to be made under this Agreement will:
(a) (DUE DATE): be made not later than close of business on the due date
for payment and all such payments will be made in such manner and to
such account as the party receiving the payment directs in writing;
and
(b) (SET-OFF): be made without set-off or counterclaim and free and clear
of and without deduction for or on account of present or future
Taxes, levies, imposts, duties, charges, fees, deductions,
withholdings, restrictions or conditions of any nature.
8.2 CERTIFICATE
A certificate signed by an Authorised Officer of the Liquidity Facility
Provider stating any amount or rate for the purposes of this Agreement
will, in the absence of manifest error on its face, constitute prima facie
evidence of the amount or rate stated therein.
9. ILLEGALITY AND INCREASED COST
9.1 ILLEGALITY
If any change in applicable law, regulation, treaty or official directive
or in the interpretation or administration thereof by any Governmental
Agency charged with the administration thereof makes it, in the reasonable
opinion of counsel to the Liquidity Facility Provider evidenced in writing
and addressed to the Trustee, unlawful or impossible for the Liquidity
Facility Provider to maintain or give effect to its obligations under this
Agreement, the Liquidity Facility Provider may by written notice to the
Trustee (with a copy to the Manager) appoint a date as the Termination
Date which date must not be prior to 30 days (or such shorter period
required by law) after the date of receipt by the Trustee of written
notice from the Liquidity Facility Provider appointing the Termination
Date.
9.2 INCREASED COST
(a) (CHANGE IN LAW): If by reason of any change in law or in its
interpretation or administration or because of compliance with any
request from or requirement of any fiscal, monetary or other
Governmental Agency:
(i) the Liquidity Facility Provider incurs a cost as a result of
its having entered into or performing its obligations under
this Agreement or as a result of any Advance being outstanding
hereunder;
(ii) there is any increase in the cost to the Liquidity Facility
Provider of funding or maintaining any Advance;
(iii) the amount of principal, interest or other amount payable to
the Liquidity Facility Provider or the effective return to the
Liquidity Facility Provider under this Agreement is reduced; or
(iv) the Liquidity Facility Provider becomes liable to make any
payment (not being a payment of Tax on its overall net income)
on or calculated by reference to the amount of Advances made
under this Agreement,
13
then from time to time on notification by the Liquidity Facility
Provider (with a copy to the Manager) the Trustee will on the
Quarterly Distribution Date following such notification and on each
succeeding Quarterly Distribution Date until the Liquidity Facility
Provider is paid in full pay to the Liquidity Facility Provider so
much of the amounts sufficient to indemnify the Liquidity Facility
Provider against such cost, increased cost, reduction or liability
that is available for this purpose in accordance with the Series
Supplement.
(b) (NO DEFENCE): If the Liquidity Facility Provider has acted in good
faith it will not be a defence to the Trustee, in the event of any
failure by the Trustee to comply with its payment obligations under
clause 9.2(a), that any such cost, increased cost, reduction or
liability could have been avoided. However, the Liquidity Facility
Provider will negotiate in good faith with the Trustee and the
Manager with a view to finding a means by which such cost, increased
cost, reduction or liability may be minimised.
(c) (CERTIFICATE CONCLUSIVE): The Liquidity Facility Provider's
certificate as to the amount of, and basis for arriving at, any such
cost, increased cost, reduction or liability is conclusive and
binding on the Trustee in the absence of manifest error on the face
of the certificate.
10. FEES
The Trustee will pay to the Liquidity Facility Provider a commitment fee
of [_]% per annum of the then un-utilised portion of the Facility Limit.
The commitment fee will be calculated daily from the date the Facility
becomes available on the basis of a 365 day year and will be paid in
arrears on each Quarterly Distribution Date in accordance with the Series
Supplement. The amount of the commitment fee may be varied by agreement
between the Trustee, the Manager and the Liquidity Facility Provider
provided that each Rating Agency is given not less than 3 Business Days
prior notice by the Manager of any variation to the amount of the
commitment fee and the amount of the commitment fee will not be varied if
such variation would result in a reduction, qualification or withdrawal by
a Rating Agency of its then current credit rating of a Security. To the
extent that such funds are not sufficient to pay the fee in full, the fee
must be paid from the funds available on each succeeding Quarterly
Distribution Date until paid in full.
11. REPRESENTATIONS AND WARRANTIES
11.1 GENERAL REPRESENTATIONS AND WARRANTIES
The Trustee in its capacity as trustee of the Series Trust represents and
warrants to the Liquidity Facility Provider that:
(a) (EXECUTION, DELIVERY AND PERFORMANCE): the execution, delivery and
performance of this Agreement and each other Transaction Document in
relation to the Series Trust to which it is a party does not violate
any existing law or regulation or any document or agreement to which
it is a party or which is binding upon it or any of its assets;
(b) (CORPORATE POWER AND AUTHORISATION): the Trustee has the power to
enter into, and to perform its obligations, and has taken all
corporate and other action necessary to authorise the entry into of,
and performance of its obligations under, this Agreement and each
other Transaction Document in relation to the Series Trust and to
which it is a party;
(c) (LEGALLY BINDING OBLIGATION): this Agreement and each of the other
Transaction
14
Documents to which it is a party constitute its valid and legally
binding obligations subject to stamping and any necessary
registration except as such enforceability may be limited by any
applicable bankruptcy, insolvency, reorganisation, moratorium or
trust or other similar laws affecting creditors' rights generally;
and
(d) (NO EVENT OF DEFAULT): to the best of the Trustee's knowledge, no
Event of Default or event which with the giving of notice, lapse of
time or other applicable condition would become an Event of Default
has occurred which has not been waived or remedied in accordance with
this Agreement.
11.2 CORPORATE REPRESENTATIONS AND WARRANTIES
The Trustee in its capacity as trustee of the Series Trust represents and
warrants in respect of itself to the Liquidity Facility Provider that:
(a) (DUE INCORPORATION): it is duly incorporated and has the corporate
power to own its own property and to carry on its business as is now
being conducted; and
(b) (EXECUTION, DELIVERY AND PERFORMANCE): the execution, delivery and
performance of this Agreement and each other Transaction Document in
relation to the Series Trust to which it is a party does not violate
its constitution.
11.3 SERIES TRUST REPRESENTATIONS AND WARRANTIES
The Trustee in its capacity as trustee of the Series Trust represents and
warrants to the Liquidity Facility Provider in relation to the Series
Trust as follows:
(a) (SERIES TRUST VALIDLY CREATED): the Series Trust has been validly
created and is in existence at the date of this Agreement;
(b) (SOLE TRUSTEE): the Trustee has been validly appointed as trustee of
the Series Trust and is presently the sole trustee of the Series
Trust;
(c) (NO PROCEEDINGS TO REMOVE): no notice has been given to the Trustee
and to the Trustee's knowledge no resolution has been passed or
direction or notice has been given, removing the Trustee as trustee
of the Series Trust;
(d) (TRUSTEE'S POWER): the Trustee has power under the Master Trust Deed
to enter into the Transaction Documents to which it is a party in its
capacity as trustee of the Series Trust; and
(e) (GOOD TITLE): to the best of its knowledge without due enquiry, the
Trustee is the lawful owner of the Assets of the Series Trust and has
power under the Master Trust Deed to mortgage or charge them in the
manner provided in the Security Trust Deed.
11.4 LIQUIDITY FACILITY PROVIDER
The Liquidity Facility Provider represents and warrants to the Trustee
that:
(a) (EXECUTION, DELIVERY AND PERFORMANCE): the execution, delivery and
performance of this Agreement and each other Transaction Document in
relation to the Series Trust to which it is a party does not violate
any existing law or regulation or any document or agreement to which
it is a party or which is binding upon it or any of its assets;
(b) (CORPORATE POWER AND AUTHORISATION): the Liquidity Facility Provider
has the
15
power to enter into, and to perform its obligations, and has taken
all corporate and other action necessary to authorise the entry into
of, and performance of its obligations under, this Agreement and each
other Transaction Document in relation to the Series Trust and to
which it is a party; and
(c) (LEGALLY BINDING OBLIGATION): this Agreement and each of the other
Transaction Documents to which it is a party constitute its valid and
legally binding obligations subject to stamping and any necessary
registration except as such enforceability may be limited by any
applicable bankruptcy, insolvency, reorganisation, moratorium or
trust or other similar laws affecting creditors' rights generally.
11.5 REPRESENTATIONS AND WARRANTIES REPEATED
Each representation and warranty contained in clauses 11.1, 11.2, 11.3 and
11.4 will be deemed to be repeated on each Drawdown Date with reference to
the facts and circumstances then subsisting, as if made on each such day.
12. UNDERTAKINGS
12.1 GENERAL
The Trustee undertakes to the Liquidity Facility Provider that it will:
(a) (ACT CONTINUOUSLY): act continuously as trustee of the Series Trust
in accordance with the Master Trust Deed and the Series Supplement
until the Series Trust is terminated or until it has retired or been
removed in accordance with the Master Trust Deed;
(b) (DO ALL THINGS NECESSARY): do everything and take all such actions
which are necessary (including, without limitation, obtaining all
such authorisations and approvals as are appropriate) to ensure that
it is able to exercise all its powers and remedies and perform all
its obligations under this Agreement, other arrangements entered into
by the Trustee pursuant to this Agreement and each Transaction
Document to which it is a party;
(c) (MAINTAIN AUTHORISATIONS): ensure that each authorisation required
for it to maintain its status as trustee of the Series Trust is
obtained and promptly renewed and maintained in full force and
effect; and
(d) (NOT AMEND OR REVOKE): not consent to amend or revoke the provisions
of the Master Trust Deed, the Series Supplement or the Security Trust
Deed in respect of payments or the order of priorities of payments to
be made thereunder without the prior written consent of the Liquidity
Facility Provider.
12.2 MANAGER'S UNDERTAKINGS AFTER MANAGER EVENT
At any time after a Manager Event occurs the Manager will:
(a) (NOTIFY LIQUIDITY FACILITY PROVIDER): immediately notify the
Liquidity Facility Provider as soon as it becomes actually aware of
the occurrence of:
(i) any Event of Default, Servicer Default, Trustee Default,
Potential Termination Event, Perfection of Title Event or
Manager Default; or
(ii) any litigation, arbitration, criminal or administrative
proceedings relating to any of the Trustee's property, assets
or revenues that involves a claim against it in excess of A$[_]
or that, if decided adversely to it, could
16
have a material adverse effect on its ability to perform the
Obligations,
and in each case advise the Liquidity Facility Provider of what steps
it has taken and what steps it proposes to take in relation to such
occurrences; and
(b) (DELIVER MATERIALS): deliver to the Liquidity Facility Provider:
(i) as soon as practicable and in any event not later than 120 days
after the close of each of the Series Trust's financial years,
a copy of the audited Accounts of the Series Trust;
(ii) as soon as practicable and in any event not later than 90 days
after the first half of each of the Series Trust's financial
years, a copy of a statement setting out the Assets and
Liabilities of the Series Trust for that half-year;
(iii) a soon as practical and in any event not later than 90 days
after each half year of each financial year of the Series
Trust, a copy of the written report prepared by the Auditor in
accordance with clause 21.9 of the Master Trust Deed;
(iv) as and when required by the Liquidity Facility Provider, a
certificate executed by two Authorised Officers on behalf of
the Manager stating to the best of the knowledge of the Manager
whether or not an Event of Default, Servicer Default, Trustee
Default, Potential Termination Event, Perfection of Title Event
or Manager Default has occurred and if the same has occurred,
setting out the details of such event and the steps (if any)
taken by the Manager to remedy or cure the same; and
(v) promptly, such further information regarding the Series Trust's
financial condition and business operations within the
knowledge of the Manager as the Liquidity Facility Provider
from time to time reasonably requires.
12.3 LIQUIDITY FACILITY PROVIDER UNDERTAKING
The Liquidity Facility Provider undertakes to the Trustee that it will do
everything and take all such actions which are necessary (including,
without limitation, obtaining all such authorisations and approvals as are
appropriate) to ensure that it is able to exercise all its powers and
remedies and perform all its obligations under this Agreement, other
arrangements entered into by the Liquidity Facility Provider pursuant to
this Agreement and each Transaction Document to which it is a party.
13. EVENTS OF DEFAULT
13.1 EVENTS OF DEFAULT
Each of the following events is an Event of Default whether or not caused
by any reason whatsoever outside the control of the Trustee or any other
person:
(a) (FAILURE TO REPAY OR PAY): the Trustee fails to repay, in accordance
with this Agreement, any Advance or fails to pay any interest, fees,
costs, charges, expenses or other moneys payable under this Agreement
in each case within 10 Business Days of the due date for payment of
such amount;
(b) (BREACH OF UNDERTAKING): the Trustee breaches its undertaking in
clause 12.1(d); and
17
(c) (EVENT OF DEFAULT UNDER SECURITY TRUST DEED): an Event of Default (as
defined in the Security Trust Deed in relation to the Series Trust)
occurs and any action is taken by the Security Trustee, pursuant to
clause 10 of the Security Trust Deed, to appoint a Receiver in
respect of the Assets of the Series Trust or to sell and realise the
Assets of the Series Trust or the Security Trustee takes any action
pursuant to clause 11 of the Security Trust Deed.
13.2 CONSEQUENCES OF EVENT OF DEFAULT
At any time after the occurrence of an Event of Default the Liquidity
Facility Provider may, without being obliged to do so and notwithstanding
any waiver of any previous default, by written notice to the Trustee:
(a) (DECLARE ADVANCES DUE): declare the Advances, accrued interest and
all other sums which have accrued due under this Agreement (whether
or not presently payable) to be due, whereupon they will become
immediately due and payable; and/or
(b) (DECLARE FACILITY TERMINATED): declare the Facility terminated in
which case the obligations of the Liquidity Facility Provider under
this Agreement will immediately terminate from the date of receipt by
the Trustee of such written notice.
14. TERMINATION BY TRUSTEE
14.1 TRUSTEE MAY DECLARE A TERMINATION DATE
Subject to clause 14.2, the Trustee may at the direction of the Manager,
by not less than 5 Business Days written notice to the Liquidity Facility
Provider and the Manager, declare a Quarterly Distribution Date as the
date on which:
(a) (SUBSTITUTE LIQUIDITY FACILITY PROVIDER): the Liquidity Facility
Provider hereunder will be replaced by a substitute Liquidity
Facility Provider; and
(b) (TERMINATION): the Liquidity Facility will terminate.
14.2 REQUIREMENTS FOR TERMINATION
On or before the declaration of a Quarterly Distribution Date by the
Trustee in accordance with clause 14.1, the Trustee must obtain written
confirmation from the Rating Agencies that the termination of the Facility
and the appointment of the proposed substitute Liquidity Facility Provider
on that Quarterly Distribution Date will not result in a downgrade,
qualification or withdrawal of the credit ratings then assigned by them to
the Securities.
15. TRUSTEE PROVISIONS
15.1 LIMITATION ON TRUSTEE'S LIABILITY
The Trustee enters into this Agreement only in its capacity as trustee of
the Series Trust and in no other capacity. A liability incurred by the
Trustee acting in its capacity as trustee of the Series Trust arising
under or in connection with this Agreement is limited to and can be
enforced against the Trustee only to the extent to which it can be
satisfied out of the Assets of the Series Trust out of which the Trustee
is actually indemnified for the liability. This limitation of the
Trustee's liability applies despite any other provision of this Agreement
(other than clause 15.3) and extends to all liabilities and obligations of
the Trustee in any way connected with any representation, warranty,
conduct, omission, agreement or transaction
18
related to this Agreement.
15.2 CLAIMS AGAINST TRUSTEE
The parties other than the Trustee may not xxx the Trustee in respect of
liabilities incurred by the Trustee acting in its capacity as trustee of
the Series Trust in any capacity other than as trustee of the Series Trust
including seeking the appointment of a receiver (except in relation to the
Assets of the Series Trust), a liquidator, an administrator or any similar
person to the Trustee, or prove in any liquidation, administration or
similar arrangements of or affecting the Trustee (except in relation to
the Assets of the Series Trust).
15.3 BREACH OF TRUST
The provisions of this clause 15 will not apply to any obligation or
liability of the Trustee to the extent that it is not satisfied because
under the Master Trust Deed, the Series Supplement, any other Transaction
Document in relation to the Series Trust or by operation of law there is a
reduction in the extent of the Trustee's indemnification out of the Assets
of the Series Trust as a result of the Trustee's fraud, negligence or
wilful default.
15.4 ACTS OR OMISSIONS
It is acknowledged that the Relevant Parties are responsible under the
Transaction Documents for performing a variety of obligations relating to
the Series Trust. No act or omission of the Trustee (including any related
failure to satisfy its obligations or any breach of representations or
warranties under this Agreement) will be considered fraud, negligence or
wilful default of the Trustee for the purpose of clause 15.3 to the extent
to which the act or omission was caused or contributed to by any failure
by any Relevant Party or any other person appointed by the Trustee under
any Transaction Document (other than a person whose acts or omissions the
Trustee is liable for in accordance with any Transaction Document) to
fulfil its obligations in relation to the Series Trust or by any other act
or omission of a Relevant Party or any other such person.
15.5 NO AUTHORITY
No attorney or agent appointed in accordance with this Agreement has
authority to act on behalf of the Trustee in a way which exposes the
Trustee to any personal liability and no act or omission of any such
person will be considered fraudulent, negligent or a wilful default of the
Trustee for the purposes of clause 15.3.
15.6 NO OBLIGATION
The Trustee is not obliged to enter into any commitment or obligation
under this Agreement or any Transaction Document (including incur any
further liability) unless the Trustee's liability is limited in a manner
which is consistent with this clause 15 or otherwise in a manner
satisfactory to the Trustee in its absolute discretion.
16. ASSIGNMENT
16.1 ASSIGNMENT BY TRUSTEE
The Trustee will not assign or otherwise transfer the benefit of this
Agreement or any of its rights, duties or obligations under this Agreement
except to a Substitute Trustee acceptable to the Liquidity Facility
Provider (whose consent is not to be unreasonably withheld).
19
16.2 ASSIGNMENT BY LIQUIDITY FACILITY PROVIDER
The Liquidity Facility Provider will not assign or otherwise transfer all
or any part of the benefit of this Agreement or any of its rights, duties
and obligations under this Agreement except to an assignee or transferee
that has a Designated Credit Rating or, if the assignee or transferee does
not have a Designated Credit Rating, the assignee or transferee complies
immediately prior to the completion of the assignment or transfer with
clause 7.1(a). The Liquidity Facility Provider may disclose to a proposed
assignee or transferee information in the possession of the Liquidity
Facility Provider relating to the Trustee or the Manager. An assignment or
transfer by the Liquidity Facility Provider pursuant to this clause 16.2
shall not be of any effect until the Liquidity Facility Provider has
notified the Trustee in writing of the assignment or transfer, as the case
may be.
17. NOTICES
17.1 METHOD OF DELIVERY
Subject to this clause, any notice, request, certificate, approval,
demand, consent or other communication to be given under this Agreement
must:
(a) (IN WRITING AND SIGNED BY AN AUTHORISED OFFICER): except in the case
of communication by email, be in writing and signed by 2 Authorised
Officers of the party giving the same; and
(b) (DELIVERY): be:
(i) left at the address of the addressee;
(ii) sent by prepaid ordinary post to the address of the addressee;
(iii) sent by facsimile to the facsimile number of the addressee; or
(iv) sent by email by an Authorised Officer of the party giving the
same in accordance with the addressee's email address,
notified by that addressee from time to time to the other parties to
this Agreement as its address for service pursuant to this Agreement.
17.2 DEEMED RECEIPT
A notice, request, certificate, demand, consent or other communication
under this Agreement is deemed to have been received:
(a) (DELIVERY): where delivered in person, upon receipt;
(b) (POST): where sent by post within Australia, on the 3rd day after
posting and where sent by post to, from or outside Australia, on the
7th day after posting;
(c) (FAX): where sent by facsimile, on production by the dispatching
facsimile machine of a transmission report which indicates that the
facsimile was sent in its entirety to the facsimile number of the
recipient; and
(d) (EMAIL): where sent by email, on the date the email is received.
However, if the time of deemed receipt of any notice is not before 5.30 pm
on a Business Day at the address of the recipient it is deemed to have
been received at the commencement of business on the next Business Day.
20
17.3 EMAIL
A notice, request, certificate, approval, demand, consent or other
communication to be given under this Agreement may only be given by email
where the recipient has separately agreed that that communication or
communications of that type, may be given by email.
18. INDEMNITY
18.1 INDEMNITY ON DEMAND
Subject to clause 15, the Trustee will on demand indemnify the Liquidity
Facility Provider against any loss, cost or expenses which the Liquidity
Facility Provider may sustain or incur as a consequence of:
(a) (OVERDUE SUMS): any sum payable by the Trustee under this Agreement
not being paid when due;
(b) (EVENT OF DEFAULT): the occurrence of any Event of Default;
(c) (FAILURE TO PROVIDE ADVANCE): an Advance requested in a Drawdown
Notice not being provided for any reason including failure to fulfil
any condition precedent but excluding any matter within the control
of the Liquidity Facility Provider; or
(d) (PAYMENT OF PRINCIPAL): the Liquidity Facility Provider receiving
payments of principal other than on the Quarterly Distribution Date
immediately following the last day of the relevant Interest Period
for any reason.
18.2 LOSSES ON LIQUIDATION OR RE-EMPLOYMENT OF DEPOSITS
The losses, costs or expenses referred to in clause 18.1 will include the
amount determined in good faith by the Liquidity Facility Provider as
being any loss (other than an amount for loss of profit other than loss of
margin) including:
(a) (LOSS OF MARGIN): loss of margin, cost or expense incurred by reason
of the liquidation or re-employment of deposits or other funds
acquired or contracted for by the Liquidity Facility Provider to fund
or maintain any such Advance or amount;
(b) (OTHER ARRANGEMENTS): losses, costs, damages, charges or expenses
incurred by the Liquidity Facility Provider in relation to the
variation, termination or making of any other arrangements in
relation to any arrangement ancillary or related to this Agreement
including, without limitation, any swap or derivative agreement
entered into by the Liquidity Facility Provider in connection with or
in order to fund any Advances.
18.3 PAYMENT ON QUARTERLY DISTRIBUTION DATE
Any payments to be made by the Trustee pursuant to this clause 18 will
only be made on the Quarterly Distribution Date following demand by the
Liquidity Facility Provider and on each succeeding Quarterly Distribution
Date until the Liquidity Facility Provider is paid in full by payment of
so much of the amount sufficient to indemnify the Liquidity Facility
Provider as is available for this purpose in accordance with the Series
Supplement.
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19. MISCELLANEOUS
19.1 STAMP DUTIES
(a) (TRUSTEE MUST PAY): The Trustee will pay all stamp, loan transaction,
registration and similar Taxes including fines and penalties (except
such fines and penalties incurred through the act, neglect or
omission of the Liquidity Facility Provider after the Liquidity
Facility Provider has requested and been put in funds to pay such
Taxes), financial institutions duty and debits tax which may be
payable or required to be paid by any appropriate authority or
determined to be payable in connection with the execution, delivery,
performance or enforcement of this Agreement.
(b) (TRUSTEE MUST INDEMNIFY): Subject to clause 15, the Trustee will
indemnify and keep indemnified the Liquidity Facility Provider
against any loss or liability incurred or suffered by it as a result
of the delay or failure by the Trustee to pay such Taxes.
19.2 WAIVER
A failure to exercise or enforce or a delay in exercising or enforcing or
the partial exercise or enforcement of any right, remedy, power or
privilege under this Agreement by the Liquidity Facility Provider will not
in any way preclude or operate as a waiver of any further exercise or
enforcement of such right, remedy, power or privilege or the exercise or
enforcement of any other right, remedy, power or privilege under this
Agreement or provided by law.
19.3 WRITTEN WAIVER, CONSENT AND APPROVAL
Any waiver, consent or approval given by the Liquidity Facility Provider
under this Agreement will only be effective and will only bind the
Liquidity Facility Provider if it is given in writing, or given verbally
and subsequently confirmed in writing, and executed by the Liquidity
Facility Provider or on its behalf by two Authorised Officers of the
Liquidity Facility Provider.
19.4 SEVERABILITY
Any provision of this Agreement which is illegal, void or unenforceable in
any jurisdiction is ineffective in such jurisdiction to the extent only of
such illegality, voidness or unenforceability without invalidating the
remaining provisions of this Agreement or affecting the validity or
enforceability of the provision in any other jurisdiction.
19.5 SURVIVAL OF INDEMNITIES
The indemnities contained in this Agreement are continuing obligations of
the Trustee, separate and independent from the other obligations of the
Trustee and will survive the termination of this Agreement.
19.6 SUCCESSORS AND ASSIGNS
This Agreement is binding upon and inures to the benefit of the parties to
this Agreement and their respective successors and permitted assigns.
19.7 MORATORIUM LEGISLATION
To the fullest extent permitted by law, the provisions of all statutes
whether existing now or in the future operating directly or indirectly:
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(a) (TO AFFECT OBLIGATIONS): to lessen or otherwise to vary or affect in
favour of the Trustee any obligation under this Agreement; or
(b) (TO AFFECT RIGHTS): to delay or otherwise prevent or prejudicially
affect the exercise of any rights or remedies conferred on the
Liquidity Facility Provider under this Agreement,
are hereby expressly waived, negatived and excluded.
19.8 AMENDMENTS
The parties to this Agreement may only amend this Agreement in accordance
with clause 33.1(b) of the Series Supplement.
19.9 GOVERNING LAW
This Agreement is governed by and construed in accordance with the laws of
the Australian Capital Territory.
19.10 JURISDICTION
Each of the parties irrevocably and unconditionally:
(a) (SUBMISSION TO JURISDICTION): submits to the non-exclusive
jurisdiction of the courts of the Australian Capital Territory;
(b) (WAIVER OF INCONVENIENT FORUM): waives any objection it may now or in
the future have to the bringing of proceedings in those courts and
any claim that any proceedings have been brought in an inconvenient
forum; and
(c) (SERVICE OF NOTICE): agrees, without preventing any other mode of
service permitted by law, that any document required to be served in
any proceedings may be served in the manner in which notices and
other written communications may be given under clause 17.
19.11 COUNTERPARTS
This Agreement may be executed in a number of counterparts and all such
counterparts taken together will constitute one and the same instrument.
19.12 CONTRA PROFERENTEM
Each provision of this Agreement will be interpreted without disadvantage
to the party who (or whose representative) drafted that provision.
19.13 KNOW YOUR CUSTOMER
Subject to any confidentiality, privacy or general trust law obligations
owed by Perpetual Trustee Company Limited to Noteholders and any
applicable confidentiality or privacy laws, each party ("INFORMATION
PROVIDER") agrees to provide any information and documents reasonably
required by another party for that other party to comply with any
applicable anti-money laundering or counter-terrorism financing laws
including, without limitation, any laws imposing "know your customer" or
other identification checks or procedures on a party, but only to the
extent that such information is in the possession of, or otherwise readily
available to, the Information Provider. Any party may decline to perform
any obligation under the Transaction Documents to the extent that it forms
the view, in its reasonable opinion, that notwithstanding that it has
taken all reasonable steps
23
to comply with such anti-money laundering or counter-terrorism financing
laws, it is required to decline to perform those obligations under any
such laws.
19.14 COMPLIANCE WITH REGULATION AB
The Liquidity Facility Provider acknowledges and agrees that to the extent
it agrees with the Manager that the Liquidity Facility Provider is
"participating in the servicing function" in relation to the Series Trust
within the meaning of Item 1122 of Regulation AB, clauses 16.31(b) and (d)
of the Series Supplement will apply to this Agreement as if references to
"the Servicer" in those clauses were references to the Liquidity Facility
Provider and the definition of "Subcontractor" in clause 1.1 of the Series
Supplement will be construed accordingly.
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SCHEDULE
FORM OF DRAWDOWN NOTICE
To: Commonwealth Bank of Australia ABN 48 123 123 124
[Address]
Attention: Head of Securitisation
From: Perpetual Trustee Company Limited ABN 42 000 001 007
[Date]
In our capacity as trustee of the Series Trust, we hereby irrevocably request a
Drawing on the Drawdown Date specified below for an amount equal to the
Liquidity Amount specified below in accordance with clause 4 of the Liquidity
Facility Agreement dated [_________] between ourselves, Commonwealth Bank of
Australia and Securitisation Advisory Services Pty. Limited ABN 88 064 133 946
as amended, novated or supplemented from time to time (the "LIQUIDITY FACILITY
AGREEMENT"):
(a) Drawdown Date [___________]
(b) Liquidity Amount A$[_________]
(c) Calculation of Liquidity Amount [___________]
Words used and not otherwise defined herein have the same meaning as in the
Liquidity Facility Agreement.
SIGNED on behalf of PERPETUAL
TRUSTEE COMPANY LIMITED as
trustee of the Medallion Trust Series [_] by:
--------------------------------------
(Authorised Officer)
--------------------------------------
(Name)
--------------------------------------
(Title)
25
EXECUTED as an agreement.
SIGNED for and on behalf of
COMMONWEALTH BANK OF AUSTRALIA ABN 48
123 123 124
by
its Attorney under a Power of Attorney ---------------------------------------
dated and who declares that he or she Signature of Attorney
has not received any notice of the
revocation of such Power of Attorney ---------------------------------------
in the presence of: Name of Attorney in full
--------------------------------------
Signature of Witness
--------------------------------------
Name of Witness in full
SIGNED for and on behalf of PERPETUAL
TRUSTEE COMPANY LIMITED ABN 42 000 001
007
by
its Attorney under a Power of Attorney ---------------------------------------
dated and who declares that he or she Signature of Attorney
has not received any notice of the
revocation of such Power of Attorney ---------------------------------------
in the presence of: Name of Attorney in full
--------------------------------------
Signature of Witness
--------------------------------------
Name of Witness in full
26
SIGNED for and on behalf of
SECURITISATION ADVISORY SERVICES PTY.
LIMITED ABN 88 064 133 946
by
its Attorney under a Power of Attorney ---------------------------------------
dated and who declares that he or she Signature of Attorney
has not received any notice of the
revocation of such Power of Attorney ---------------------------------------
in the presence of: Name of Attorney in full
--------------------------------------
Signature of Witness
---------------------------------------
Name of Witness in full
27
