Payment Funding Facility Agreement
for Issue and Repayment of Notes -
SMHL Global Fund No. 6
Perpetual Trustees Australia Limited
ABN 86 000 000 000
Perpetual Trustees Australia Limited
ABN 86 000 000 000
ME Portfolio Management Limited
ABN 79 005 964 134
and
ME Portfolio Management Limited
ABN 79 005 964 134
[Freehills LOGO]
XXX Xxxxxx Xxxxxx Xxxxx Xxxxxx Xxx Xxxxx Xxxxx 0000 Xxxxxxxxx
Telephone x00 0 0000 0000 Facsimile x00 0 0000 0000
xxx.xxxxxxxxx.xxx DX 000 Xxxxxx
XXXXXX XXXXXXXXX PERTH BRISBANE HANOI HO CHI MINH CITY SINGAPORE
Correspondent Offices JAKARTA KUALA LUMPUR
Liability limited by the Solicitors' Limitation of Liability Scheme,
approved under the Professional Standards Xxx 0000 (NSW)
Reference PJSR:TEL:25E
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Table of contents
Clause Page
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1 Definitions and interpretation 2
1.1 Definitions 2
1.2 Interpretation 6
1.3 Banking Day 8
1.4 Transaction Document 8
2 The Notes 8
2.1 Application for and Issue of Notes 8
2.2 Acknowledgment of Indebtedness 8
2.3 Obligations under Notes 8
2.4 Ownership of Notes 9
2.5 Register 9
3 Purpose 9
4 Funding procedures 10
4.1 Delivery of Funding Notice 10
4.2 Requirements for a Funding Notice 10
4.3 Copy of the Funding Notice to be provided to the Issuer 10
4.4 Irrevocability of Funding Notice 10
5 Loan Facility 11
5.1 Provision of Funding Portions 11
5.2 Repayment of Outstanding Moneys 11
5.3 Interest 11
5.4 Order of Repayment 12
5.5 Acknowledgments 12
6 Payments 13
6.1 Manner of payments 13
6.2 Payments on a Banking Day 13
6.3 Appropriation of payments 13
6.4 Payments in gross 13
6.5 Amounts payable on demand 14
7 Representations and warranties 14
7.1 By the Issuer 14
7.2 By the SF Manager 15
7.3 Survival and repetition of representations and warranties 16
7.4 Reliance by the Note Holder and OF Manager 16
8 Undertakings 16
8.1 Term of undertakings 16
8.2 Compliance with Covenants 16
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
8.3 Notify Events of Default 16
9 Events of Default 16
9.1 Operation of clause 9 16
9.2 Effect of Event of Default 17
9.3 Issuer to continue to perform 17
9.4 Enforcement 17
10 Trustee Limitation of Liability Protection 17
10.1 Limitation of Liability - Issuer 17
10.2 Limitation of Liability - Note Holder 18
10.3 Wilful Default of the Issuer and the Note Holder 19
11 Indemnities 20
11.1 General indemnity 20
11.2 Continuing indemnities and evidence of loss 20
11.3 Funds available for indemnity 21
11.4 Negligence, wilful default or breach of law 21
11.5 Notification from Note Holder or OF Manager 21
12 Tax, costs and expenses 21
12.1 Tax 21
12.2 Costs and expenses 22
12.3 Goods and services tax 22
13 Interest on overdue amounts 23
13.1 Payment of interest 23
13.2 Accrual of interest 23
13.3 Rate of interest 23
14 Assignment 24
14.1 Assignment by Transaction Party 24
14.2 Assignment by Note Holder 24
14.3 Assist transfer or assignment 24
14.4 Participation permitted 24
14.5 Lending Office 24
14.6 Disclosure 24
14.7 No increase in costs 24
15 General 25
15.1 Confidential information 25
15.2 Performance by Note Holder of obligations 25
15.3 Transaction Party to bear cost 25
15.4 Notices 25
15.5 Governing law and jurisdiction 27
15.6 Prohibition and enforceability 27
15.7 Waivers 27
15.8 Variation 27
15.9 Cumulative rights 27
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
15.10 Attorneys 27
15.11 Binding Obligations 28
15.12 Winding up of Securitisation Fund 28
15.13 Termination 28
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
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This Payment Funding Facility agreement
is made on __________ 2004 between the following parties:
1 Perpetual Trustees Australia Limited
ABN 86 000 000 000
in its capacity as trustee of the Securitisation Fund (as
hereinafter defined)
of Xxxxx 0, 00 Xxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx
(Issuer)
2 Perpetual Trustees Australia Limited
ABN 86 000 000 000
in its capacity as trustee of the Origination Fund (as
hereinafter defined)
of Xxxxx 0, 00 Xxxxxx Xxxxxx,
Xxxxxx, Xxx Xxxxx Xxxxx
(Note Holder)
3 ME Portfolio Management Limited
ABN 79 005 964 134
in its capacity as manager of the Securitisation Fund
of Xxxxx 00, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx
(XX Manager)
4. ME Portfolio Management Limited
ABN 79 005 964 134
in its capacity as manager of the Origination Fund
of Xxxxx 00, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx
(OF Manager)
Recitals
A. The Issuer is the trustee, and the SF Manager is the manager, of
the Securitisation Fund.
B. The Note Holder is the trustee, and the OF Manager is the
manager, of the Origination Fund.
C. The SF Manager has requested the OF Manager to direct the Note
Holder to make available a loan facility to the Issuer under
which the Issuer will issue notes to the Note Holder and the Note
Holder will purchase notes from the Issuer.
D. The Note Holder and the OF Manager have agreed to make available
a facility on the terms and conditions of this agreement and have
agreed with the SF Manager and the Issuer that the terms and
conditions of the issue and repayment of any such notes are those
contained in this agreement.
The parties agree
in consideration of, among other things, the mutual promises contained
in this agreement:
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
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1 Definitions and interpretation
1.1 Definitions
In this agreement, unless the context otherwise requires:
Attorney means an attorney appointed under a Material Document;
Authorisation includes:
(a) any consent, registration, filing, agreement, notarisation,
certificate, licence, approval, permit, authority or exemption
from, by or with a Governmental Agency; and
(b) any consent or authorisation regarded as given by a Governmental
Agency due to the expiration of the period specified by a statute
within which the Governmental Agency should have acted if it
wished to proscribe or limit anything already lodged, registered
or notified under that statute;
Authorised Investments has the meaning given to it in the Master Trust
Deed;
Bank has the meaning given to it in the Master Trust Deed;
Banking Day means a day on which Banks are open for business in
Melbourne and Sydney excluding a Saturday, Sunday or public holiday;
Bond Issue Date has the meaning given to it in the Master Trust Deed;
Bond Issue Direction has the meaning given to it in the Master Trust
Deed;
Charge means the charge created under the Security Trust Deed;
Class A Note has the meaning given to it in the Supplementary Bond
Terms Notice;
Class B Note has the meaning given to it in the Supplementary Bond
Terms Notice;
Collections has the meaning given to it in the Supplementary Bond
Terms Notice;
Conditions means the terms and conditions as set out in schedule 2;
Designated Rating Agency has the meaning given to it in the Master
Trust Deed;
Dollars, A$ and $ means the lawful currency of the Commonwealth of
Australia;
Encumbrance means an interest or power:
(a) reserved in or over an interest in any asset including, but not
limited to, any retention of title; or
(b) created or otherwise arising in or over any interest in any asset
under a xxxx of sale, mortgage, charge, lien, pledge, trust or
power,
by way of security for the payment of a debt, any other monetary
obligation or the performance of any other obligation, and includes,
but is not limited to, any agreement to grant or create any of the
above;
Entity has the same meaning as in Chapter 2E of the Corporations Act;
Event of Default means an Event of Default as defined in the Security
Trust Deed;
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
Excluded Tax means any Tax imposed by any jurisdiction on the net
income of the Note Holder;
Facility means the payment funding facility made available by the Note
Holder to the Issuer under this agreement (by purchase of Notes);
Fitch Ratings has the meaning given to it in the Supplementary Bond
Terms Notice;
Funding Date means the date on which a Note will be issued (as
stipulated in the Funding Notice) and the date on which a Funding
Portion is, or is to be, advanced or regarded as advanced to the
Issuer under this agreement;
Funding Notice means a notice given, or to be given, under clauses 4.1
and 4.2;
Funding Portion means in relation to any Note, the principal amount of
that Note to be provided or outstanding at that time (as the case may
be);
Governmental Agency means any government or any governmental,
semi-governmental, administrative, fiscal or judicial body,
department, commission, authority, tribunal, agency or entity;
GST has the same meaning as in the A New Tax System (Goods and
Services Tax) Xxx 0000;
Interest Amount means for any Payment Period all of the net income
derived from the investment of the net proceeds of the Principal
Outstanding for that Payment Period;
Lending Office means the office of the Note Holder set out in clause
15.4(a)(1)(A) or such other office as notified by the Note Holder
under this agreement;
Liquidity Notes has the meaning given to it in the Supplementary Bond
Terms Notice;
Master Trust Deed means the Master Trust Deed dated 4 July 1994 made
between Perpetual Trustees Australia Limited and ME Portfolio
Management Limited, and providing for the establishment of a series of
trusts known collectively as the Superannuation Members' Home Loans
Trusts, as amended from time to time;
Material Documents means:
(a) this agreement (including each Note); and
(b) the Security Trust Deed; and
(c) the Supplementary Bond Terms Notice.
Xxxxx'x has the meaning given to it in the Master Trust Deed;
Mortgage has the meaning given to it in the Master Trust Deed;
Note means a note issued under clauses 2 and 4;
Note Holder means Perpetual Trustees Australia Limited or any person
entitled to be registered as a Note Holder in accordance with this
agreement;
Officer means:
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
(a) in relation to the Issuer and Note Holder, a director, secretary
or other person whose title contains the word or words "manager"
or "counsel" or a person performing the functions of any of them;
and
(b) in relation to the SF Manager and OF Manager, a director or a
secretary, or a person notified to be an authorised officer of
the relevant party.
Origination Fund means Superannuation Members' Home Loans Origination
Fund No. 3 established pursuant to the Master Trust Deed;
Outstanding Moneys means all debts and monetary liabilities of the
Issuer to the Note Holder under or in relation to any Material
Document irrespective of whether the debts or liabilities:
(a) are present or future;
(b) are actual, prospective, contingent or otherwise;
(c) are at any time ascertained or unascertained;
(d) are owed or incurred by or on account of the Issuer alone, or
severally or jointly with any other person;
(e) are owed to or incurred for the account of the Note Holder alone,
or severally or jointly with any other person;
(f) are owed or incurred as principal, interest, fees, charges,
taxes, duties or other imposts, damages (whether for breach of
contract or tort or incurred on any other ground), losses, costs
or expenses, or on any other account; or
comprise any combination of the above, after:
(a) deducting the aggregate amount of any payments made under clause
3(b); and
(b) adding the aggregate of any amounts recovered by or otherwise
paid to the Issuer where the original non-payment of those
amounts was a Payment Amount Shortfall;
Outstanding Principal Balance in respect of a Mortgage has the same
meaning as in the Supplementary Bond Terms Notice;
Overdue Rate means on any date the rate percent per annum calculated
by the OF Manager which is the rate, expressed as a percentage,
derived from dividing the Interest Amount by the average of the
Principal Outstanding on each Banking Day during the Payment Period
immediately preceding the date the Overdue Rate is calculated;
Payment Amount means an amount payable by the Issuer to the
counterparty to any Enhancement or Interest Hedge (as those terms are
defined in the Security Trust Deed) in respect of any loss suffered by
the counterparty as a consequence of the termination before its due
date of any arrangement to hedge or otherwise manage the Issuer's
interest rate exposure for any Mortgage being an Asset of the
Securitisation Fund where all or part of the interest payable is
subject to a fixed rate;
Payment Amount Shortfall means as the case requires:
(a) a Recovery Shortfall; and
(b) a Threshold Rate Shortfall;
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
Payment Date has the meaning given to it in the Supplementary Bond
Terms Notice;
Payment Period means the period from and including the last Payment
Date to but excluding the next Payment Date except that the first
Payment Period will commence on the relevant Funding Date and the last
Payment Period will end on the Termination Date;
Permitted Encumbrance means:
(a) every lien created by operation of law securing an obligation
that is not yet due;
(b) every lien for the unpaid balance of purchase moneys under an
instalment contract entered into in the ordinary course of
business;
(c) every lien for the unpaid balance of moneys owing for repairs;
and
(d) an Encumbrance granted under a Transaction Document,
which affects or relates to any of the assets of the Securitisation
Fund;
Power means any right, power, authority, discretion or remedy
conferred on the Note Holder or OF Manager, or a Receiver or an
Attorney by any Transaction Document or any applicable law;
Principal Outstanding means at any time the aggregate principal amount
of all outstanding Funding Portions at that time after:
(a) deducting the aggregate amount of any payments made under clause
3(b); and
(b) adding the aggregate of any amounts recovered by or otherwise
paid to the Issuer in respect of a Payment Amount Shortfall;
Recovery Shortfall means an amount equal to the difference between the
Payment Amount and the amount recovered or recoverable under or
pursuant to the Mortgage in respect of the Payment Amount;
Redraw Funding Facility has the meaning given to it in the Security
Trust Deed;
Register means the register of Note Holders maintained by the Issuer;
S&P has the meaning given to it in the Master Trust Deed;
Same Day Funds means bank cheque or other immediately available funds;
Securitisation Fund means the Securitisation Fund constituted under
the Master Trust Deed known as SMHL Global Fund No. 6;
Security Trust Deed means the security trust deed (as amended from
time to time) in respect of the Securitisation Fund between the
Issuer, the SF Manager, Perpetual Trustee Company Limited ABN 42 000
001 007 (as security trustee) and The Bank of New York (as note
trustee);
Set Date means in relation to the initial Payment Period, the Funding
Date, and in relation to each subsequent Payment Period, the Payment
Date at the commencement of that Payment Period;
Supplementary Bond Terms Notice means the Supplementary Bond Terms
Notice dated on or about the date of this agreement in respect of the
Securitisation Fund and providing terms of issue for Class A Notes and
Class B Notes;
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Tax means:
(a) any tax (including goods and services tax), levy, charge, impost,
duty, fee, deduction, compulsory loan or withholding; or
(b) any income, stamp or transaction duty, tax or charge,
which is assessed, levied, imposed or collected by any Governmental
Agency and includes, but is not limited to, any interest, fine,
penalty, charge, fee or other amount imposed on or in respect of any
of the above;
Termination Date means, the first to occur of:
(a) the date on which the Total Outstanding Principal Balance is zero
or will be zero following any payments made on the relevant
Payment Date (as defined under the Supplementary Bond Terms
Notice); and
(b) the date by which the SF Manager has received written
notification from each Designated Rating Agency (as defined in
the Master Trust Deed) that the provision of the Facility and the
subscription and issue of Notes under the Facility (including any
outstanding Notes) is no longer necessary in order to maintain
the "AAA", "Aaa" and "AAA" rating of notes in the Securitisation
Fund known as the "Class A Notes" by S&P, Xxxxx'x and Xxxxx
Ratings respectively;
Threshold Rate Shortfall means any shortfall arising under any
determination under clause 11(a) of the Supplementary Bond Terms
Notice;
Total Outstanding Principal Balance has the meaning given to it under
the Supplementary Bond Terms Notice;
Transaction Document has the meaning given to it in the Master Trust
Deed and includes this agreement and any document or agreement entered
into or given under it (including Notes);
Transaction Party means:
(a) the Issuer; or
(b) the SF Manager.
1.2 Interpretation
In this agreement, headings and boldings are for convenience only and
do not affect the interpretation of this agreement and, unless the
context otherwise requires:
(a) words importing the singular include the plural and vice versa;
(b) words importing a gender include any gender;
(c) other parts of speech and grammatical forms of a word or phrase
defined in this agreement have a corresponding meaning;
(d) an expression importing a natural person includes any company,
partnership, joint venture, association, corporation or other
body corporate and any Governmental Agency;
(e) a reference to any thing (including, but not limited to, any
right) includes a part of that thing;
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
(f) a reference to a part, clause, party, annexure, exhibit or
schedule is a reference to a part and clause of, and a party,
annexure, exhibit and schedule to, this agreement and a reference
to this agreement includes any annexure, exhibit and schedule;
(g) a reference to a statute, regulation, proclamation, ordinance or
by-law includes all statutes, regulations, proclamations,
ordinances or by-laws amending, consolidating or replacing it,
and a reference to a statute includes all regulations,
proclamations, ordinances and by-laws issued under that statute;
(h) a reference to a document includes all amendments or supplements
to, or replacements or novations of, that document;
(i) a reference to liquidation includes appointment of an
administrator, compromise, arrangement, merger, amalgamation,
reconstruction, winding up, dissolution, assignment for the
benefit of creditors, scheme, composition or arrangement with
creditors, insolvency, bankruptcy, or a similar procedure or,
where applicable, changes in the constitution of any partnership
or person or death;
(j) a reference to a party to any document includes that party's
successors and permitted assigns;
(k) a reference to an agreement other than this agreement includes an
undertaking, deed, agreement or legally enforceable arrangement
or understanding whether or not in writing;
(l) a reference to an asset includes all property of any nature,
including, but not limited to, a business, and all rights,
revenues and benefits;
(m) a reference to a document includes any agreement in writing, or
any certificate, notice, instrument or other document of any
kind;
(n) no provision of this agreement will be construed adversely to a
party solely on the ground that the party was responsible for the
preparation of this agreement or that provision;
(o) a reference to the drawing, accepting, endorsing or other dealing
with or of a Xxxx refers to a drawing, accepting, endorsing or
dealing within the meaning of the Bills of Exchange Xxx 0000;
(p) a reference to a body, other than a party to this agreement
(including, without limitation, an institute, association or
authority), whether statutory or not:
(1) which ceases to exist; or
(2) whose powers or functions are transferred to another body,
is a reference to the body which replaces it or which
substantially succeeds to its powers or functions; and
(q) the Issuer or the Note Holder will only be considered to have
knowledge or awareness of, or notice of, a thing, or grounds to
believe any thing, by virtue of the officers of the Issuer or the
Note Holder having day to day responsibility for the
administration of the Origination Fund or the Securitisation Fund
(as the case may be) having actual knowledge, actual
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
awareness or actual notice of that thing, or grounds or reason to
believe that thing (and similar references will be interpreted in
this way).
1.3 Banking Day
Unless otherwise stipulated in this agreement, where the day on or by
which any thing is to be done is not a Banking Day, that thing must be
done on or by the succeeding Banking Day.
1.4 Transaction Document
The parties agree that this agreement and any document or agreement
entered into or given under it (including a Note) is a "Transaction
Document" for the purposes of the Master Trust Deed.
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2 The Notes
2.1 Application for and Issue of Notes
(a) The SF Manager may request that the Issuer issues a Note to the
Note Holder by:
(1) requesting a Note be issued from "SMHL Global Fund No. 6";
(2) specifying the principal amount of the Note required;
(3) specifying the proposed date of issue of the Note; and
(4) providing to the Note Holder and the OF Manager a Funding
Notice (and a copy to the Issuer) pursuant to clause 4.
(b) If the SF Manager has requested that the Issuer issues a Note in
accordance with clause 2.1(a) and the OF Manager and Note Holder
agree to subscribe for the Note as requested by the SF Manager,
the Issuer must, on the terms of this agreement, issue the Note
to the Note Holder in consideration for the principal amount
provided that the OF Manager and Note Holder have complied with
clause 5.1.
(c) The parties agree that the terms and conditions contained in this
agreement, the Supplementary Bond Terms Notice (to the extent
applicable) and the Security Trust Deed (to the extent
applicable) govern the issue and repayment of the Notes.
2.2 Acknowledgment of Indebtedness
The Issuer acknowledges its indebtedness to the Note Holder in respect
of each Note issued under this agreement.
2.3 Obligations under Notes
(a) The obligations of the Issuer under the Notes are constituted by,
and specified in, this agreement and in the Conditions.
(b) Each Note is a separate debt of the Issuer.
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
(c) The entitlement of any person to a Note is determined by
registration as a Note Holder of that Note.
(d) The making of, or giving effect to, a manifest error in an
inscription in the Register will not avoid the creation or
transfer of a Note.
2.4 Ownership of Notes
(a) A Note may be transferred by the Note Holder to any person in
accordance with this agreement.
(b) The person whose name is registered as the Note Holder of a Note
in the Register will be treated by the Issuer as the absolute
owner of the Note.
2.5 Register
The Issuer must:
(a) establish and maintain the Register;
(b) enter in the Register in respect of each Note:
(1) the principal amount and principal outstanding in respect of
each Note;
(2) its date of issue and date of redemption and cancellation;
and
(3) the date on which any person becomes, or ceases to be, a
Note Holder.
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3 Purpose
(a) Subject to clause 3(b), the Issuer must, and the SF Manager must
cause the Issuer to, keep the proceeds of a Funding Portion
invested in Authorised Investments:
(1) which are rated "AAA" or "A-1+" by S&P, "Prime-1" or "Aaa"
by Xxxxx'x and "AAA" or "F1+" by Fitch Ratings, or such
other rating as any Designated Rating Agency may approve
from time to time;
(2) which mature (except in the case of call deposits with a
Bank) not later than the day before the Payment Date
immediately after the day on which they are made; and
(3) otherwise in accordance with the Master Trust Deed.
(b) The Issuer must and the SF Manager must cause the Issuer to,
apply funds invested under clause 3(a):
(1) to the extent of any Payment Amount Shortfall and subject to
clause 5.5(b)(3), towards Collections in accordance with the
Supplementary Bond Terms Notice; and
(2) otherwise as required under clause 5 or clause 11.
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4 Funding procedures
4.1 Delivery of Funding Notice
If the SF Manager determines that the Issuer requires a Note to be
issued, the SF Manager must deliver to the Note Holder and the OF
Manager a Funding Notice in accordance with this clause 4.
4.2 Requirements for a Funding Notice
A Funding Notice:
(a) must be in writing in the form of, and specifying the matters set
out in, schedule 1;
(b) must be received by the Note Holder and the OF Manager at least 2
Banking Days before the proposed Funding Date (or such shorter
period as the OF Manager may agree in writing);
(c) must be signed by an Officer of the SF Manager and an Officer of
the Issuer;
(d) whether or not stated in the notice, constitutes a representation
and warranty by each of the Issuer and the SF Manager that so far
as it is aware (without the need to make enquiry) each
representation and warranty set out in clause 7 and given by it
is true, correct and not misleading as if made at the date of the
Funding Notice and the Funding Date in respect of the facts and
circumstances then subsisting, but if the representation and
warranty constituted by this clause 4.2(d) is not correct the
Funding Notice must contain a statement to that effect and must
set out full details of any exceptions and the reasons and any
remedial action taken or proposed. Any such statement is without
prejudice to the rights of the Note Holder and OF Manager.
4.3 Copy of the Funding Notice to be provided to the Issuer
A copy of each Funding Notice must be provided to the Issuer at least
1 Banking Day before the proposed Funding Date together with the Bond
Issue Direction for the issue of the Notes.
4.4 Irrevocability of Funding Notice
The Note Holder or the OF Manager may, in its absolute discretion,
decide to decline to provide the requested funding specified in the
Funding Notice, in which case the OF Manager must notify each of the
Issuer and the SF Manager in writing. Following agreement by the Note
Holder and the OF Manager to the issue of the relevant Note specified
in the Funding Notice, the Issuer is irrevocably committed to, and the
SF Manager is irrevocably committed to cause the Issuer to, issue the
relevant Note and to draw Funding Portions from the Note Holder in
accordance with the Funding Notice given to the OF Manager and the
Note Holder.
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5 Loan Facility
5.1 Provision of Funding Portions
If the SF Manager gives a Funding Notice in accordance with clause 4
and the OF Manager and the Note Holder agree to the issue of the
specified Note, then, subject to this agreement (including, without
limitation, clause 10), the Note Holder must, and the OF Manager must
cause the Note Holder to, provide the relevant Funding Portion under
the Facility as payment for the relevant Note in Same Day Funds in
Dollars not later than 12 noon (Melbourne time) on the specified
Funding Date and in accordance with that Funding Notice.
5.2 Repayment of Outstanding Moneys
(a) If after having regard to clause 5.5, the SF Manager determines
that on any Banking Day the Principal Outstanding is greater than
the amount agreed from time to time by the Manager and each
Designated Rating Agency the Issuer must, and the SF Manager must
cause the Issuer to, repay to the Note Holder so much of the
Principal Outstanding so that the Principal Outstanding
immediately after that repayment will not cause the current
rating of the Class A Notes and the Class B Notes issued by the
Issuer to be downgraded or withdrawn by any Designated Rating
Agencies.
(b) The Issuer must, and the SF Manager must cause the Issuer to,
repay the Principal Outstanding, if any, in full on the
Termination Date.
(c) The Issuer must, and the SF Manager must cause the Issuer to, pay
or repay the balance of the Outstanding Moneys in full to the
Note Holder on the Termination Date or on such other date on
which the Principal Outstanding is, or is required to be, repaid
in full.
(d) The Issuer is not obliged to make a repayment under this clause
5.2 other than out of the funds invested or available for
investment under clause 3.
5.3 Interest
(a)
(1) On each Payment Date, the Issuer must, and the SF Manager
must cause the Issuer to, pay to the Note Holder interest on
the Payment Period being an amount equal to the Interest
Amount.
(2) The Issuer is not obliged to pay interest under clause
5.3(a)(1) other than out of the Interest Amount.
(b) The Issuer and the SF Manager acknowledge that the Interest
Amount is not available to meet any payment obligation of the
Issuer other than its obligation to pay interest under clauses
5.3(a) and 5.3(c).
(c) If on any Payment Date, the Interest Amount in respect of the
relevant Payment Period is not paid on the whole amount of the
Principal Outstanding:
(1) the Interest Amount shall accrue interest at the Overdue
Rate for the next Payment Period;
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
(2) the Interest Amount and interest accrued under paragraph (1)
shall become payable on the next Payment Date; and
(3) to the extent to which any unpaid Interest Amount (including
any interest accrued under paragraph (1)) remains unpaid
after that next Payment Date it will again be subject to
paragraphs (1) and (2) for each subsequent Payment Period
and Payment Date until it has been paid.
(d) Interest must be calculated in arrears on daily balances on the
basis of a 365 day year and for the actual number of days elapsed
during the relevant period.
5.4 Order of Repayment
(a) In making repayments under clause 5.2, the Issuer must, and the
SF Manager must cause the Issuer to, apply the amount of the
repayment to repay the Principal Outstanding under the Notes in
order of the date of issue of the Notes so that the Notes issued
earlier in time are repaid first.
(b) The Note Holder must, and the OF Manager must cause the Note
Holder to, apply repayments in accordance with clause 6.3(a).
(c) The OF Manager must advise the Issuer and the SF Manager in
writing of the Notes which have been wholly or partly repaid, the
amount of the repayment and the Principal Outstanding under that
Note.
5.5 Acknowledgments
(a) The Issuer acknowledges that if an amount is paid out of the
Securitisation Fund as a consequence of a Payment Amount
Shortfall, and an amount referable to that Payment Amount
Shortfall is subsequently recovered by or otherwise paid to the
Issuer, such amounts are to be available for repayment under
clause 5.
(b) Each of the parties acknowledges that:
(1) the Issuer will not be able to issue the Class A Notes or
the Class B Notes unless and until a Funding Portion has
been provided and maintained under clause 5.1 such that the
Principal Outstanding is not less than 0.00% of the
Outstanding Principal Balance of the Loans secured by the
Mortgages comprised in the Assets of Securitisation Fund on
the issue date of the notes;
(2) in order to maintain the assigned rating by each Designated
Rating Agency (which rating confirmation by each Designated
Rating Agency must be in writing) of the Class A Notes or
the Class B Notes it may be necessary to increase the amount
of the Principal Outstanding to an amount in excess of 0.00%
of the Outstanding Principal Balance of the Loans secured by
Mortgages comprised in the Assets of Securitisation Fund;
(3) the amount of the Principal Outstanding up to an amount
equal to 0.00% of the Outstanding Principal Balance of the
Loans secured by Mortgages comprised in the Assets of
Securitisation Fund is only available in respect of Payment
Amount Shortfalls being
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
Recovery Shortfalls and any Principal Outstanding in excess
of 0.00% of the Outstanding Principal Balance of the Loans
secured by Mortgages comprised in the Assets of
Securitisation Fund is only available in respect of Payment
Amount Shortfalls being Threshold Rate Shortfalls; and
(4) if a Threshold Rate Shortfall exists and the amount of the
Funding Portion is not increased as contemplated by clause
5.5(b)(2), the SF Manager must comply with clauses 12(a) and
(b) of the Supplementary Bond Terms Notice.
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6 Payments
6.1 Manner of payments
All payments to the Note Holder under the Transaction Documents must
be made:
(a) in Same Day Funds;
(b) in Dollars;
(c) not later than 11:00 am (Melbourne time) on the due date,
to the account of the Note Holder specified by the OF Manager to the
Issuer or in such other manner to an account of the Note Holder as the
OF Manager directs from time to time.
6.2 Payments on a Banking Day
If a payment is due on a day which is not a Banking Day, the due date
for that payment is the next Banking Day and interest must be adjusted
accordingly.
6.3 Appropriation of payments
(a) All payments made by the Issuer to the Note Holder under this
agreement may be appropriated as between principal, interest and
other amounts, as the OF Manager in its absolute discretion
determines or, failing any determination, in the following order:
(1) firstly, towards reimbursements of all fees, costs,
expenses, charges, damages and indemnity payments incurred
or due and owing by the Transaction Party under the Material
Documents;
(2) secondly, towards payment of interest due and payable under
the Material Documents; and
(3) thirdly, towards repayment of the Principal Outstanding.
(b) Any appropriation under clause 6.3(a) overrides any appropriation
made by the Issuer.
6.4 Payments in gross
All payments which a Transaction Party is required to make under any
Material Document must be:
(a) without any set-off, counterclaim or condition; and
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
(b) without any deduction or withholding for any Tax or any other
reason, unless the Transaction Party is required to make a
deduction or withholding by applicable law.
6.5 Amounts payable on demand
If any amount payable by a Transaction Party under any Material
Document is not expressed to be payable on a specified date that
amount is payable by the Transaction Party on demand by the Note
Holder or OF Manager.
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7 Representations and warranties
7.1 By the Issuer
The Issuer hereby represents and warrants to the OF Manager and Note
Holder that:
(a) (Due Incorporation): it is duly incorporated and has the
corporate power to own its property and to carry on its business
as is now being conducted;
(b) (Constitution): the execution delivery and performance of this
agreement and any Note does not and will not violate its
Constitution;
(c) (Corporate Power): it has the power and has taken all corporate
and other action required to enter into this agreement and each
Note and to authorise the execution and delivery of this
agreement and each Note and the performance of its obligations
thereunder;
(d) (Filings): it has filed all corporate notices and effected all
registrations with the Australian Securities and Investments
Commission or similar office in the jurisdiction of incorporation
and in any other jurisdiction as required by law and all such
filings and registrations are current, complete and accurate
except that this representation and warranty does not apply to
the filing of an ASIC form 309 in relation to the creation of the
Charge;
(e) (Legally Binding Obligation): this agreement and each Note
constitutes or will constitute a valid, legally binding and
enforceable obligation of it in accordance with its terms except
as such enforceability may be limited by any applicable
bankruptcy, insolvency, reorganisation, moratorium or trust or
other similar laws affecting creditors' rights generally;
(f) (Execution, Delivery and Performance): the execution, delivery
and performance of this agreement and each Note by it does not
violate any existing law or regulation or any document or
agreement to which it is a party in either case in its capacity
as trustee of the Securitisation Fund or which is binding upon it
or any of its assets in its capacity as trustee of the
Securitisation Fund;
(g) (Authorisation): all consents, licences, approvals and
authorisations of every Government Agency required to be obtained
by it in connection with the execution and delivery of, and
performance of its obligations under, this agreement and any Note
have been obtained and are valid and subsisting;
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
(h) (Securitisation Fund Validly Created): the Securitisation Fund
has been validly created and is in existence at the date of this
agreement;
(i) (Sole Trustee): it has been validly appointed as trustee of the
Securitisation Fund and is presently the sole trustee of the
Securitisation Fund;
(j) (Master Trust Deed): the Securitisation Fund is constituted
pursuant to the Master Trust Deed; and
(k) (No Proceedings to Remove): no notice has been given to it and to
its knowledge no resolution has been passed or direction or
notice has been given, removing it as trustee of the
Securitisation Fund.
7.2 By the SF Manager
The SF Manager hereby represents and warrants to the OF Manager and
Note Holder that:
(a) (Due incorporation): it is duly incorporated and has the
corporate power to own its property and to carry on its business
as is now being conducted;
(b) (Constitution): the execution, delivery and performance by it of
this agreement and each Note does not and will not violate its
Constitution;
(c) (Corporate power): the SF Manager has the power and has taken all
corporate and other action required to enter into this agreement
and each Note and to authorise the execution and delivery of this
agreement and each Note and the performance of its obligations
hereunder;
(d) (Filings): the SF Manager has filed all corporate notices and
effected all registrations with the Australian Securities and
Investments Commission or similar office in its jurisdiction of
incorporation and in any other jurisdiction as required by law
and all such filings and registrations are current, complete and
accurate;
(e) (Legally Binding Obligation): this agreement and each Note
constitutes or will constitute a valid, legally binding and
enforceable obligation of the SF Manager in accordance with its
terms except as such enforceability may be limited by any
applicable bankruptcy, insolvency, re-organisation, moratorium or
trust or other similar laws affecting creditors' rights
generally;
(f) (Execution, Delivery and Performance): the execution, delivery
and performance of this agreement and each Note by the SF Manager
does not violate any existing law or regulation or any document
or agreement to which the SF Manager is a party or which is
binding upon it or any of its assets; and
(g) (Authorisation): all consents, licences, approvals and
authorisations of every Government Agency required to be obtained
by the SF Manager in connection with the execution, delivery and
performance of this agreement and each Note have been obtained
and are valid and subsisting.
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
7.3 Survival and repetition of representations and warranties
The representations and warranties in, or given under, this agreement
including, but not limited to, clauses 7.1 and 7.2:
(a) survive the execution of each Transaction Document; and
(b) are regarded as repeated on each Funding Date with respect to the
facts and circumstances then subsisting.
7.4 Reliance by the Note Holder and OF Manager
The Issuer and the SF Manager each acknowledge that the Note Holder
and OF Manager have entered into each Transaction Document to which it
is a party in reliance on the representations and warranties in, or
given under, this agreement including, but not limited to, clauses 7.1
and 7.2.
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8 Undertakings
8.1 Term of undertakings
Unless the OF Manager otherwise agrees in writing, until the
Outstanding Moneys are fully and finally repaid the Issuer and the SF
Manager must, at its own cost (but without prejudice to clause 10 in
the case of the Issuer), comply with the undertakings in this clause
8.
8.2 Compliance with Covenants
The Issuer must and the SF Manager must ensure that the Issuer does:
(a) comply with all of its covenants and obligations under the
Security Trust Deed and Supplementary Bond Terms Notice; and
(b) wherever it is required to obtain consent of the Security Trustee
(as defined in the Security Trust Deed) under the Security Trust
Deed also obtain the prior written consent of the Note Holder and
OF Manager.
8.3 Notify Events of Default
On and from the Termination Date, each of the SF Manager and the
Issuer must immediately notify all the other parties to this agreement
in writing if it becomes actually aware of the occurrence of any Event
of Default and must provide full and complete details in relation
thereto immediately upon becoming actually aware of such details.
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9 Events of Default
9.1 Operation of clause 9
Clauses 9.2 to 9.4 only have effect on and from the Termination Date.
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
9.2 Effect of Event of Default
(a) Upon or at any time after the occurrence of an Event of Default
the Note Holder or the OF Manager may by notice to the Issuer and
the SF Manager declare that the Outstanding Moneys are
immediately due and payable.
(b) The Issuer must and the SF Manager must cause the Issuer to upon
receipt of a notice under clause 9.2(a) immediately repay in full
the Outstanding Moneys to the Note Holder.
9.3 Issuer to continue to perform
(a) If the Note Holder or OF Manager makes any declaration under
clause 9.2:
(1) the declaration does not affect or diminish the duties and
obligations of the Issuer or the SF Manager under the
Transaction Documents; and
(2) each of the Issuer and the SF Manager must continue to
perform its obligations under the Transaction Documents as
if the declaration had not been made, subject to any
directions that may be given by the Note Holder or the OF
Manager from time to time under any Transaction Document.
(b) Clause 9.3(a) does not affect the obligations of the Issuer or
the SF Manager under clause 9.2.
9.4 Enforcement
(a) The Material Documents may be enforced without notice to or
consent by the Issuer or SF Manager or any other person even if
the Note Holder accepts any part of the Outstanding Moneys after
an Event of Default or there has been any other Event of Default.
(b) Neither the Note Holder nor the OF Manager is liable to any
Transaction Party for any loss or damage a Transaction Party may
suffer, incur or be liable for arising out of or in connection
with the Note Holder or OF Manager exercising any Power under any
Material Document.
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10 Trustee Limitation of Liability Protection
10.1 Limitation of Liability - Issuer
(a) The Issuer enters into this agreement only in its capacity as
trustee of the Securitisation Fund and no other capacity. A
liability of the Issuer arising under or in connection with this
agreement is limited to and can be enforced against the Issuer
only to the extent to which it can be satisfied out of property
of the Securitisation Fund out of which the Issuer is actually
indemnified for the liability. This limitation of the Issuer's
liability applies despite any other provision of this agreement
and extends to all liabilities and obligations of the Issuer in
any way connected with any representation, warranty, conduct,
omission, agreement or transaction related to this agreement.
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
(b) The parties other than the Issuer may not xxx the Issuer in any
capacity other than as trustee of the Securitisation Fund or seek
the appointment of a receiver (except in relation to property of
the Securitisation Fund), a liquidator, an administrator or any
similar person to the Issuer or prove in any liquidation,
administration or arrangement of or affecting the Issuer (except
in relation to property of the Securitisation Fund).
(c) The provisions of this clause 10.1 shall not apply to any
obligation or liability of the Issuer to the extent that it is
not satisfied because under the Master Trust Deed establishing
the Securitisation Fund or by operation of law there is a
reduction in the extent of the Issuer's indemnification out of
the assets of the Securitisation Fund, as a result of the
Issuer's fraud, negligence or wilful default.
(d) It is acknowledged that the SF Manager is responsible under the
Master Trust Deed establishing the Securitisation Fund for
performing a variety of obligations relating to the
Securitisation Fund, including under this agreement. No act or
omission of the Issuer (including any related failure to satisfy
its obligations or breach of representation or warranty under
this agreement) will be considered fraud, negligence or wilful
default of the Issuer for the purposes of paragraph (c) of this
clause 10.1 to the extent to which the act or omission was caused
or contributed to by any failure by the SF Manager or any other
person to fulfil its obligations relating to the Securitisation
Fund or by any other act or omission of the SF Manager or any
other person.
(e) No attorney, agent, receiver or receiver and manager appointed in
accordance with this agreement has authority to act on behalf of
the Trustee in a way which exposes the Issuer to any personal
liability and no act or omission of any such person will be
considered fraud, negligence or wilful default of the Issuer for
the purposes of paragraph (c) of this clause 10.1.
(f) The Issuer is not obliged to do or refrain from doing anything
under this agreement (including incur any liability) unless the
Issuer's liability is limited in the same manner as set out in
paragraphs (a) to (c) of this clause.
10.2 Limitation of Liability - Note Holder
(a) The Note Holder enters into this agreement only in its capacity
as trustee of the Origination Fund and no other capacity. A
liability arising under or in connection with this agreement is
limited to and can be enforced against the Note Holder only to
the extent to which it can be satisfied out of property of the
Origination Fund out of which the Note Holder is actually
indemnified for the liability. This limitation of the Note
Holder's liability applies despite any other provision of this
agreement and extends to all liabilities and obligations of the
Note Holder in any way connected with any representation,
warranty, conduct, omission, agreement or transaction related to
this agreement.
(b) The parties other than the Note Holder may not xxx the Note
Holder in any capacity other than as trustee of the Origination
Fund or seek the appointment of a receiver (except in relation to
property of the Origination Fund), a liquidator, an administrator
or any similar person to the Note
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
Holder or prove in any liquidation, administration or arrangement
of or affecting the Note Holder (except in relation to property
of the Origination Fund).
(c) The provisions of this clause 10.2 shall not apply to any
obligation or liability of the Note Holder to the extent that it
is not satisfied because under the trust deed establishing the
Origination Fund or by operation of law there is a reduction in
the extent of the Note Holder's indemnification out of the assets
of the Origination Fund, as a result of the Note Holder's fraud,
negligence or wilful default.
(d) It is acknowledged that the OF Manager is responsible under the
trust deed establishing the Origination Fund for performing a
variety of obligations relating to the Origination Fund,
including under this agreement. No act or omission of the Note
Holder (including any related failure to satisfy its obligations
or breach of representation or warranty under this agreement)
will be considered fraud, negligence or wilful default of the
Note Holder for the purposes of paragraph (c) of this clause 10.2
to the extent to which the act or omission was caused or
contributed to by any failure by the OF Manager or any other
person to fulfil its obligations relating to the Origination Fund
or by any other act or omission of the OF Manager or any other
person.
(e) No attorney, agent, receiver or receiver and manager appointed in
accordance with this agreement has authority to act on behalf of
the Trustee in a way which exposes the Note Holder to any
personal liability and no act or omission of any such person will
be considered fraud, negligence or wilful default of the Note
Holder for the purposes of paragraph (c) of this clause 10.2.
(f) The Note Holder is not obliged to do or refrain from doing
anything under this agreement (including incur any liability)
unless the Note Holder's liability is limited in the same manner
as set out in paragraphs (a) to (c) of this clause.
10.3 Wilful Default of the Issuer and the Note Holder
For the purposes of this agreement, the expression "wilful default":
(a) in relation to the Issuer and the Note Holder, means a wilful
default of this agreement by the Issuer or the Note Holder, as
the case may be:
(1) other than a default which:
(A) arises out of a breach of a Transaction Document by a
person other than the Issuer, Note Holder or any person
referred to in paragraph 10.3(b) in relation to the
Issuer or the Note Holder;
(B) arises because some other act or omission is a
precondition to the relevant act or omission of the
Issuer or the Note Holder, and that other act or
omission does not occur;
(C) is in accordance with a lawful court order or direction
or is required by law; or
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
(D) is in accordance with an instruction or direction given
to it by any person in circumstances where that person
is authorised to do so by any Transaction Document; and
(2) in circumstances where had it not committed that default it
would have been entitled to recoupment, reimbursement or a
right of indemnity for its costs and expenses (if any) in
complying with this agreement from the Fund.
(b) A reference to the "fraud", "negligence" or "wilful default" of
the Issuer or the Note Holder means the fraud, negligence or
wilful default of the Issuer or the Note Holder, as the case may
be, and of the officers or employees, but not of the agents or
delegates of the Issuer or Note Holder, unless the Issuer or the
Note Holder is liable for the acts or omissions of such other
person under the terms of this agreement.
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11 Indemnities
11.1 General indemnity
(a) The Issuer, to the extent it is permitted or contemplated under
the terms of the Master Trust Deed, indemnifies on a full
indemnity basis (including legal costs and expenses charged at
the usual commercial rates of the relevant legal services
provider) and out of the property of the Securitisation Fund the
Note Holder and OF Manager against any claim, action, damage,
loss, liability, cost, charge, expense, outgoing or payment which
the Note Holder or OF Manager, as the case may be, or an Attorney
pays, suffers, incurs or is liable for, in respect of any of the
following:
(1) a Funding Portion required by a Funding Notice, not being
made for any reason including, but excluding any default by
the Note Holder or OF Manager, as the case may be;
(2) any repayment or prepayment of all or part of a Funding
Portion being made on a date other than the relevant Payment
Date.
(b) Without limitation to the indemnity contained in clause 11.1(a),
that indemnity includes the amount determined by the Note Holder
or OF Manager, as the case may be, as being incurred by reason of
the liquidation or re-employment of deposits or other funds
acquired or contracted for by the Note Holder or OF Manager, as
the case may be to fund or maintain the Principal Outstanding or
the relevant Funding Portion and includes, but is not limited to,
loss of margin.
11.2 Continuing indemnities and evidence of loss
(a) Each indemnity of the Issuer contained in this agreement is a
continuing obligation of the Issuer, despite:
(1) any settlement of account; or
(2) the occurrence of any other thing,
and remains in full force and effect until:
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
(3) all moneys owing, contingently or otherwise, under any of
the Material Documents have been paid in full; and
(4) the Outstanding Moneys are fully and finally repaid.
(b) Each indemnity of the Issuer contained in this agreement is an
additional, separate and independent obligation of the Issuer and
no one indemnity limits the generality of any other indemnity.
(c) Each indemnity of the Issuer contained in this agreement survives
the termination of any Transaction Document.
(d) A certificate under the hand of an Officer of the OF Manager
detailing the amount of any damage, loss, liability, cost,
charge, expense, outgoing or payment covered by any indemnity in
this agreement is sufficient evidence unless the contrary is
proved.
11.3 Funds available for indemnity
The obligations of the Issuer under this clause 11 shall be payable
solely to the extent of funds invested or available for investment
under clause 3.
11.4 Negligence, wilful default or breach of law
The indemnities in this clause 11 do not extend to any liability,
loss, cost, charge or expense that is finally and judicially
determined to result from any negligence, wilful default or breach of
law by the other parties to this agreement.
11.5 Notification from Note Holder or OF Manager
If the Note Holder or the OF Manager receives written notice of any
act, matter or thing which may give rise to a liability, loss, cost,
charge or expense in relation to which the Issuer would be required to
indemnify it under this clause 11, the Note Holder or the OF Manager
(as the case may be) will notify the Issuer of that act, matter or
thing giving such details as it is practicable to give as soon as it
is reasonably practicable and in any event within 5 Banking Days of it
coming to its attention, provided that failure to do so will not
result in any loss or reduction in the indemnity contained in this
clause 11 unless the Issuer has been prejudiced in any material
respect by such failure.
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12 Tax, costs and expenses
12.1 Tax
(a) The Issuer must and the SF Manager must cause the Issuer to pay
any Tax, other than an Excluded Tax in respect of the
Securitisation Fund or a Tax referred to in clause 12.3, in
respect of the execution, delivery, performance, release,
discharge, amendment, enforcement or attempted enforcement or
otherwise in respect of any of the following:
(1) any Material Document;
(2) any agreement or document entered into or signed under any
Material Document; and
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
(3) any transaction contemplated under any Material Document or
any agreement or document described in clause 12.1(a)(2).
(b) The Issuer must and the SF Manager must cause the Issuer to pay
any fine, penalty or other cost in respect of a failure to pay
any Tax described in clause 12.1(a) except to the extent that the
fine, penalty or other cost is caused by the Note Holder's
failure to lodge money received from the Issuer before the due
date for lodgement.
(c) The Issuer indemnifies out of the property of the Securitisation
Fund the Note Holder against any amount payable under clause
12.1(a) or 12.1(b) or both.
12.2 Costs and expenses
The Issuer must, and the SF Manager must cause the Issuer to, pay all
costs and expenses of the Note Holder and the OF Manager and any
employee, Officer, agent or contractor of the Note Holder and the OF
Manager in relation to:
(a) the negotiation, preparation, execution, delivery, stamping,
registration, completion, variation and discharge of any Material
Document or any agreement or document described in clause
12.1(a);
(b) the enforcement, protection or waiver, or attempted enforcement
or protection, of any rights under any Material Document or any
agreement or document described in clause 12.1(a);
(c) the consent or approval of the Note Holder or OF Manager given
under any Material Document or any agreement or document
described in clause 12.1(a); and
(d) any enquiry by any Governmental Agency involving a Transaction
Party,
including, but not limited to, any administration costs of the Note
Holder or the OF Manager, as the case may be, in connection with the
matters referred to in clause 12.2(b) and 12.2(d) and any legal costs
and expenses (charged at the usual commercial rates of the relevant
legal services provider) and any professional consultant's fees for
any of the above on a full indemnity basis.
12.3 Goods and services tax
(a) Subject to clause 12.3(b), all amounts referred to in this
Agreement which are relevant in determining a payment to be made
by one party to another are exclusive of GST unless specifically
indicated otherwise.
(b) If a party to this Agreement is entitled to be indemnified or
reimbursed for any cost or expense incurred by that party, then
the indemnity or reimbursement will be calculated by reference to
the GST-exclusive amount of that cost or expense, increased by an
amount equal to that part of the cost or expense for which the
party or its representative member is not entitled to an input
tax credit but would be entitled if that entity was entitled to a
full input tax credit. For the avoidance of doubt, the amount
calculated under this clause 12.3(b) is a GST-exclusive amount.
(c) If GST is levied or imposed on or in respect of any supply made
under or in connection with this Agreement for which the
consideration is a monetary payment, then the consideration
provided for that supply is
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
increased by an amount equal to the consideration multiplied by
the rate at which that GST is levied or imposed. This additional
amount is payable to the party with the liability to remit GST in
the manner and at the time when the consideration to which it
relates is payable.
(d) The recipient of any consideration for a taxable supply (whether
in money or otherwise) must provide to the other party a GST tax
invoice (or any other thing required under any legislation
concerned with GST) in the form required by the A New Tax System
(Goods and Services Tax) Xxx 0000 or that other legislation.
(e) Where an "adjustment event", as defined in the A New Tax System
(Goods and Services Tax) Xxx 0000 occurs under this Agreement,
the parties shall do all things necessary to ensure that the
adjustment event may be appropriately recognised, including the
issue of an "adjustment note", as that term is defined in that
Act.
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13 Interest on overdue amounts
13.1 Payment of interest
The Issuer must, and the SF Manager must cause the Issuer to, pay
interest on:
(a) any of the Outstanding Moneys due and payable, but unpaid; and
(b) on any interest payable but unpaid in accordance with clause 5.
13.2 Accrual of interest
The interest payable under this clause 13:
(a) accrues from day to day from and including the due date for
payment up to the actual date of payment, before and, as an
additional and independent obligation, after any judgment or
other thing into which the liability to pay the Outstanding
Moneys becomes merged; and
(b) may be capitalised by the Note Holder on any Payment Date.
13.3 Rate of interest
The rate of interest payable under this clause 13 on any part of the
Outstanding Moneys is the higher of:
(a) the Overdue Rate; and
(b) the rate fixed or payable under a judgment or other thing
referred to in clause 13.2(a).
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
--------------------------------------------------------------------------------
14 Assignment
14.1 Assignment by Transaction Party
A Transaction Party must not transfer or assign any of its rights or
obligations under any Material Document without the prior written
consent of the OF Manager, the Note Holder and each Designated Rating
Agency.
14.2 Assignment by Note Holder
Neither the Note Holder nor the OF Manager may assign any of its
rights or transfer by novation any of its rights and obligations under
this agreement or any Note without the prior written consent of the
other parties and a prior written notice of such assignment been given
to each Designated Rating Agency. Any such assignment must contain an
acknowledgment that the assignee is bound by the provisions of this
agreement.
14.3 Assist transfer or assignment
At the request of the Note Holder or OF Manager, the Issuer and the SF
Manager must do any thing including, but not limited to, executing any
documents or amending any Material Document, to effect any transfer or
assignment under this clause 14.
14.4 Participation permitted
The Note Holder and OF Manager may grant by way of sub-participation
(being a right to share in the financial effects of this agreement,
without any rights against the Issuer) all or part of the Note
Holder's or OF Manager's, as the case may be, rights and benefits
under this agreement to any other person without having to obtain the
consent of or to notify the Issuer or the SF Manager.
14.5 Lending Office
(a) The Note Holder may change its Lending Office at any time.
(b) The Note Holder must promptly notify the Issuer and the SF
Manager of any such change.
14.6 Disclosure
Any party may disclose to a proposed assignee, transferee or
sub-participant any information relating to any other party or the
Transaction Documents whether or not confidential and whether or not
the disclosure would be in breach of any law or of any duty owed to
that other party.
14.7 No increase in costs
If the Note Holder or OF Manager assigns or transfers any of its
rights or obligations under any Material Document or changes its
Lending Office the Issuer is not required to pay any net increase in
the aggregate amount of costs, Taxes, fees or charges which:
(a) are a direct consequence of the transfer or assignment or change
of Lending Office; and
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
(b) the Note Holder or OF Manager as the case may be, or its
transferee or assignee was aware of or ought reasonably to have
been aware of, at the time of the transfer or assignment or
change of Lending Office.
--------------------------------------------------------------------------------
15 General
15.1 Confidential information
The Note Holder and OF Manager may, for the purpose of exercising any
Power, disclose to any person any documents or records of, or
information about, any Transaction Document, or the assets, business
or affairs of any Transaction Party, whether or not confidential and
whether or not the disclosure would be in breach of any law or of any
duty owed to any Transaction Party.
15.2 Performance by Note Holder of obligations
If a Transaction Party defaults in fully and punctually performing any
obligation contained or implied in any Transaction Document, the Note
Holder and OF Manager may, without prejudice to any Power do all
things necessary or desirable, in the opinion of the Note Holder or OF
Manager, as the case may be, to make good or attempt to make good that
default to the satisfaction of the Note Holder or OF Manager, as the
case may be.
15.3 Transaction Party to bear cost
Without prejudice to clause 10, any thing which must be done by a
Transaction Party under any Material Document, whether or not at the
request of the Note Holder or OF Manager, must be done at the cost of
the Transaction Party.
15.4 Notices
(a) Any notice or other communication including, but not limited to,
any request, demand, consent or approval, to or by a party to any
Material Document:
(1) must be in legible writing and in English addressed as shown
below (or if sent by facsimile, to the facsimile numbers
below) and marked to the attention of the following:
(A) if to the Note Holder:
Address: Xxxxx 0
0 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XXX, 0000
Attention: Head of Securitisation/Manager -
Securitisation
Facsimile: (00) 0000 0000; and
(B) if to the Issuer:
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
Address: Xxxxx 0
0 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XXX, 0000
Attention: Head of Securitisation/Manager -
Securitisation
Facsimile: (00) 0000 0000;
(C) if to the SF Manager:
Address: Xxxxx 00,
000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx 0000
Attention: Manager - Capital Markets
Facsimile: (00) 0000 0000; and
(D) if to the OF Manager:
Address: Xxxxx 00,
000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx 0000
Attention: Manager - Capital Markets
Facsimile: (00) 0000 0000;
or as specified to the sender by any party by notice;
(2) where the sender is a company, must be signed by an Officer
or under the common seal of the sender;
(3) is regarded as being given by the sender and received by the
addressee:
(A) if by delivery in person, when delivered to the
addressee;
(B) if by post, on delivery to the addressee; or
(C) if by facsimile transmission, whether or not legibly
received, when transmitted to the addressee,
but if the delivery or receipt is on a day which is not a
Banking Day or is after 4.00 pm (addressee's time) it is
regarded as received at 9.00 am on the following Banking
Day;
(4) can be relied upon by the addressee and the addressee is not
liable to any other person for any consequences of that
reliance if the addressee believes it to be genuine, correct
and authorised by the sender; and
(5) if to the Note Holder must be copied to the OF Manager and
if to the Issuer must be copied to the SF Manager.
(b) A facsimile transmission is regarded as legible unless the
addressee telephones the sender within 2 hours after the
transmission is received or regarded as received under clause
15.4(a)(3) and informs the sender that it is not legible.
(c) In this clause 15.4, a reference to an addressee includes a
reference to an addressee's Officers, agents or employees.
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
15.5 Governing law and jurisdiction
(a) This agreement is governed by the laws of New South Wales.
(b) The Issuer and the SF Manager irrevocably submit to the
non-exclusive jurisdiction of the courts of New South Wales.
15.6 Prohibition and enforceability
(a) Any provision of, or the application of any provision of, any
Material Document or any Power which is prohibited in any
jurisdiction is, in that jurisdiction, ineffective only to the
extent of that prohibition.
(b) Any provision of, or the application of any provision of, any
Material Document which is void, illegal or unenforceable in any
jurisdiction does not affect the validity, legality or
enforceability of that provision in any other jurisdiction or of
the remaining provisions in that or any other jurisdiction.
15.7 Waivers
(a) Waiver of any right arising from a breach of this agreement or of
any Power arising upon default under this agreement must be in
writing and signed by the party granting the waiver.
(b) A failure or delay in exercise, or partial exercise, of:
(1) a right arising from a breach of this agreement; or
(2) a Power created or arising upon default under this agreement,
does not result in a waiver of that right or Power.
(c) A party is not entitled to rely on a delay in the exercise or
non-exercise of a right or Power arising from a breach of this
agreement or on a default under this agreement as constituting a
waiver of that right or Power.
(d) A party may not rely on any conduct of another party as a defence
to exercise of a right or Power by that other party.
(e) This clause may not itself be waived except by writing.
15.8 Variation
A variation of any term of this agreement must be in writing and
signed by the parties. No variation may be made if it will cause the
current rating of any bonds issued by the Issuer to be downgraded or
withdrawn by any Designated Rating Agency.
15.9 Cumulative rights
The Powers are cumulative and do not exclude any other right, power,
authority, discretion or remedy of the Note Holder or OF Manager.
15.10 Attorneys
Each of the Attorneys executing this agreement states that the
Attorney has no notice of the revocation of the power of attorney
appointing that Attorney.
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
15.11 Binding Obligations
Each party to this agreement acknowledges that the obligations
expressed in this agreement are binding upon it.
15.12 Winding up of Securitisation Fund
Prior to the Termination Date, neither the Note Holder nor the OF
Manager may seek to terminate or wind up the Securitisation Fund as a
consequence of any breach of this agreement or any Note by the Issuer
on the SF Manager.
15.13 Termination
This agreement can only be terminated on or after the Termination
Date.
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
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Schedule 1 - Funding Notice (clause 4.2)
To: Perpetual Trustees Australia Limited
in its capacity as trustee of the Origination Fund
(Note Holder)
And: ME Portfolio Management Limited
(OF Manager)
Attention: Head of Securitisation/Manager - Securitisation
--------------------------------------------------------------------------------
We refer to the agreement dated [insert date] (Agreement). Pursuant to clause 4
of the Agreement:
(a) we give you notice that we wish to request the Issuer to issue to the Note
Holder a Note pursuant to the Agreement on _______________ [**] 2004.
(Funding Date);
(b) the aggregate principal amount of the Note is: $________;
(c) we request that the proceeds be remitted to account number ___________ at
___________________; /[insert alternative instructions]
(d) The Issuer represents and warrants that:
(1) [(except as disclosed in paragraph (d)(2))] each representation and
warranty given by it in the Agreement is to the best of its knowledge,
true, correct and not misleading as though it had been made at the
date of this Funding Notice and the Funding Date specified above in
respect of the facts and circumstances then subsisting;[ and]
(2) details of the exceptions to paragraph (d)(1) are as follows:
___________________, and the Issuer [has taken/proposes] the following
remedial action ______________________];
(e) The SF Manager represents and warrants that:
(1) [(except as disclosed in paragraph (e)(2))] each representation and
warranty given by it in the Agreement is to the best of its knowledge,
true, correct and not misleading as though it had been made at the
date of this Funding Notice and the Funding Date specified above in
respect of the facts and circumstances then subsisting; [and]
(2) details of the exceptions to paragraph (e)(1) are as follows:
___________________, and the SF Manager [has taken/proposes] the
following remedial action ______________________];
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
Dated:
--------------
Signed for and on behalf of
ME Portfolio Management Limited
------------------------------------
Officer's signature
------------------------------------
Name (please print)
Signed for and on behalf of
Perpetual Trustees Australia Limited
------------------------------------
Officer's signature
------------------------------------
Name (please print)
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
--------------------------------------------------------------------------------
Schedule 2 - Conditions
Payment Funding Facility Agreement - SMHL Global Fund No. 6
PERPETUAL TRUSTEES AUSTRALIA LIMITED
ABN 86 000 000 000
in its capacity as trustee of the SMHL Global Fund No. 6
of Xxxxx 0, 00 Xxxxxx Xxxxxx, Xxxxxx, XXX, 0000
("Issuer")
whose office for the purposes of payment is at Xxxxx 0, 0 Xxxxxxxxxxx Xxxxxx,
Xxxxxx, XXX, 0000 or such other address as the Issuer may notify to the Note
Holder from time to time.
1 Note
(a) The terms and conditions of the issue of this Note and repayment are
constituted by this Note and the Payment Funding Facility Agreement for
Issue and Repayment of Notes dated [**] 2004 between the Issuer, the Note
Holder, ME Portfolio Management Limited (ABN 79 005 964 134) of Xxxxx 00,
000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx, in its capacity as manager of the
XXXX Xxxxxx Xxxx Xx. 0 (XX Xxxxxxx) and ME Portfolio Management Limited
(ABN 79 005 964 134) of Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx,
in its capacity as manager of the Superannuation Members' Home Loans
Origination Fund No. 3 (OF Manager) (Agreement). Terms defined in the
Agreement have the same meaning when used in these Conditions.
(b) Subject to clause 3, the Issuer promises to repay the principal amount in
accordance with the Agreement.
(c) This Note may only be assigned or transferred with the prior written
consent of the Issuer and subject to and in accordance with the Agreement.
2 Derivation of payment
The parties acknowledge that the payments to be made by the Issuer under
this Note are derived by it from the receipts from a "mortgage" or "pool of
mortgages", as those terms are defined in section 3 of the Duties Xxx 0000
(Vic).
3 Extent of liability of Issuer
(a) The Issuer issues this Note only in its capacity as trustee of the
Securitisation Fund and no other capacity. A liability of the Issuer
arising under or in connection with this Note or the Agreement is limited
to and can be enforced against the Issuer only to the extent to which it
can be satisfied out of property of the Securitisation Fund out of which
the Issuer is actually indemnified for the liability. This limitation of
the Issuer's liability applies despite any other provision of this Note or
the Agreement and extends to all liabilities and obligations of the Issuer
in any way connected with any representation, warranty, conduct, omission,
agreement or transaction related to this Note or the Agreement.
(b) The parties other than the Issuer may not xxx the Issuer in any capacity
other than as trustee of the Securitisation Fund or seek the appointment of
a receiver (except in relation to property of the Securitisation Fund), a
liquidator, an administrator or any similar
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
person to the Issuer or prove in any liquidation, administration or
arrangement of or affecting the Issuer (except in relation to property of
the Securitisation Fund).
(c) The provisions of this clause 3 shall not apply to any obligation or
liability of the Issuer to the extent that it is not satisfied because
under the Master Trust Deed establishing the Securitisation Fund or by
operation of law there is a reduction in the extent of the Issuer's
indemnification out of the assets of the Securitisation Fund Issuer, as a
result of the Issuer's fraud, negligence or wilful default.
(d) It is acknowledged that the SF Manager is responsible under the Master
Trust Deed establishing the Securitisation Fund for performing a variety of
obligations relating to the Securitisation Fund, including under this Note
and the Agreement. No act or omission of the Issuer (including any related
failure to satisfy its obligations or breach of representation or warranty
under this Note or the Agreement) will be considered fraud, negligence or
wilful default of the Issuer for the purposes of paragraph (c) of this
clause 3 to the extent to which the act or omission was caused or
contributed to by any failure by the SF Manager or any other person to
fulfil its obligations relating to the Securitisation Fund or by any other
act or omission of the SF Manager or any other person.
(e) No attorney, agent, receiver or receiver and manager appointed in
accordance with this Note or the Agreement has authority to act on behalf
of the Issuer in a way which exposes the Issuer to any personal liability
and no act or omission of any such person will be considered fraud,
negligence or wilful default of the Issuer for the purposes of paragraph
(c) of this clause 3.
(f) The Issuer is not obliged to do or refrain from doing anything under this
Note or the Agreement (including incur any liability) unless the Issuer's
liability is limited in the same manner as set out in paragraphs (a) to (c)
of this clause 3.
4 Extent of liability of Note Holder
(a) The Note Holder enters into this Note only in its capacity as trustee of
the Origination Fund and no other capacity. A liability arising under or in
connection with this Note or the Agreement is limited to and can be
enforced against the Note Holder only to the extent to which it can be
satisfied out of property of the Origination Fund out of which the Note
Holder is actually indemnified for the liability. This limitation of the
Note Holder's liability applies despite any other provision of this Note or
the Agreement and extends to all liabilities and obligations of the Note
Holder in any way connected with any representation, warranty, conduct,
omission, agreement or transaction related to this Note or the Agreement.
(b) The parties other than the Note Holder may not xxx the Note Holder in any
capacity other than as trustee of the Origination Fund or seek the
appointment of a receiver (except in relation to property of the
Origination Fund), a liquidator, an administrator or any similar person to
the Note Holder or prove in any liquidation, administration or arrangement
of or affecting the Note Holder (except in relation to property of the
Origination Fund).
(c) The provisions of this clause 4 shall not apply to any obligation or
liability of the Note Holder to the extent that it is not satisfied because
under the trust deed establishing the Origination Fund or by operation of
law there is a reduction in the extent of the Note Holder's indemnification
out of the assets of the Origination Fund, as a result of the Note Holder's
fraud, negligence or wilful default.
(d) It is acknowledged that the OF Manager is responsible under the trust deed
establishing the Origination Fund for performing a variety of obligations
relating to the Origination Fund, including under this Note and the
Agreement. No act or omission of the Note
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
Holder (including any related failure to satisfy its obligations or breach
of representation or warranty under this Note or the Agreement) will be
considered fraud, negligence or wilful default of the Note Holder for the
purposes of paragraph (c) of this clause 4 to the extent to which the act
or omission was caused or contributed to by any failure by the OF Manager
or any other person to fulfil its obligations relating to the Origination
Fund or by any other act or omission of the OF Manager or any other person.
(e) No attorney, agent, receiver or receiver and manager appointed in
accordance with this Note or the Agreement has authority to act on behalf
of the Note Holder in a way which exposes the Note Holder to any personal
liability and no act or omission of any such person will be considered
fraud, negligence or wilful default of the Note Holder for the purposes of
paragraph (c) of this clause 4.
(f) The Note Holder is not obliged to refrain from doing anything under this
Note or the Agreement (including incur any liability) unless the Note
Holder's liability is limited in the same manner as set out in paragraphs
(a) to (c) of this clause 4.
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
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Executed as an agreement:
Signed for
Perpetual Trustee Australia Limited
in its capacity as trustee of SMHL Global Fund No. 6
by its attorney under a Power of Attorney dated
and who declares that he has not received any notice of the
revocation of such Power of Attorney in the presence of:
-------------------------------------- ---------------------------------------
Witness Attorney
-------------------------------------- ---------------------------------------
Name (please print) Name (please print)
Signed for
Perpetual Trustees Australia Limited
in its capacity as trustee of Superannuation Members'
Home Loans Origination Fund No. 3
by its attorney under a Power of Attorney dated
and who declares that he has not received any notice of the
revocation of such Power of Attorney in the presence of:
-------------------------------------- ---------------------------------------
Witness Attorney
------------------------- -------------------------
Name (please print) Name (please print)
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Payment Funding Facility Agreement - SMHL Global Fund No. 6
Signed for
ME Portfolio Management Limited
in its capacity as manager of SMHL Global Fund No. 6
by its attorney under a Power of Attorney dated
and who declares that he has not received any notice of the
revocation of such Power of Attorney in the presence of:
-------------------------------------- ---------------------------------------
Witness Attorney
-------------------------------------- ---------------------------------------
Name (please print) Name (please print)
Signed for
ME Portfolio Management Limited
in its capacity as manager of Superannuation Members'
Home Loans Origination Fund No. 3
by its attorney under a Power of Attorney dated
and who declares that he has not received any notice of the
revocation of such Power of Attorney in the presence of:
-------------------------------------- ---------------------------------------
Witness Attorney
-------------------------------------- ---------------------------------------
Name (please print) Name (please print)
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