Facility Agreement for the Issue and Repayment of Notes - SMHL Global Fund
ME
Portfolio Management Limited
the
Issue and
Repayment
of Notes -
SMHL
Global Fund
2007-1
Table
of contents
|
Clause
|
Page
|
||
|
1
|
Definitions
and interpretation
|
1
|
|
|
1.1
|
Definitions
|
1
|
|
|
1.2
|
Interpretation
|
5
|
|
|
1.3
|
Banking
Day
|
7
|
|
|
1.4
|
Transaction
Document
|
7
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|
|
2
|
The
Notes
|
7
|
|
|
2.1
|
Application
for and Issue of Notes
|
7
|
|
|
2.2
|
Acknowledgment
of Indebtedness
|
8
|
|
|
2.3
|
Obligations
under Notes
|
8
|
|
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2.4
|
Ownership
of Notes
|
8
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|
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2.5
|
Register
|
8
|
|
|
3
|
Redraw
Facilities
|
8
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|
|
3.1
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Purpose
|
8
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|
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3.2
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Loan
Redraws
|
9
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|
|
4
|
Funding
procedures
|
9
|
|
|
4.1
|
Delivery
of Funding Notice
|
9
|
|
|
4.2
|
Requirements
for a Funding Notice
|
9
|
|
|
4.3
|
Delivery
of Facility Provider Funding Notice
|
9
|
|
|
4.4
|
Requirements
for a Facility Provider Funding Notice
|
9
|
|
|
4.5
|
Copy
of the Funding Notice
|
10
|
|
|
4.6
|
Irrevocability
of Drawdown Notice
|
10
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|
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4.7
|
Notification
of Funding Rate
|
10
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|
|
5
|
Loan
Facility
|
10
|
|
|
5.1
|
Provision
of Funding Portions
|
10
|
|
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5.2
|
Repayment
|
11
|
|
|
5.3
|
Repayment
of Outstanding Moneys
|
11
|
|
|
5.4
|
Interest
|
11
|
|
|
5.5
|
Order
of Repayment
|
12
|
|
|
6
|
Payments
|
12
|
|
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6.1
|
Manner
of payments
|
12
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|
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6.2
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Payments
on a Banking Day
|
13
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|
|
6.3
|
Appropriation
of payments
|
13
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|
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6.4
|
Payments
in gross
|
13
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|
|
6.5
|
Taxation
deduction procedures
|
13
|
|
|
6.6
|
Amounts
payable on demand
|
13
|
|
|
7
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Representations
and warranties
|
14
|
|
|
7.1
|
By
the Issuer
|
14
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|
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7.2
|
By
the SF Manager
|
15
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|
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7.3
|
Survival
and repetition of representations and warranties
|
15
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|
|
7.4
|
Reliance
by the Note Holder and OF Manager
|
16
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|
|
8
|
Undertakings
|
16
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|
|
8.1
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Term
of undertakings
|
16
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|
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8.2
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Compliance
with Covenants
|
16
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|
|
8.3
|
Notify
Events of Default
|
16
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|
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8.4
|
Know
your customer
|
16
|
|
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8.5
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Compliance
with Regulation AB
|
16
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|
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8.6
|
Direction
of claims by the SF Manager
|
22
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|
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8.7
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Direction
of defence of claims
|
22
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|
|
9
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Events
of Default
|
23
|
|
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9.1
|
Effect
of Event of Default
|
23
|
|
|
9.2
|
Issuer
to continue to perform
|
23
|
|
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9.3
|
Enforcement
|
23
|
|
|
10
|
Increased
costs, illegality and yield protection
|
24
|
|
|
10.1
|
Increased
costs
|
24
|
|
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10.2
|
Illegality
|
25
|
|
|
11
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Trustee
Limitation of Liability Protection
|
25
|
|
|
11.1
|
Limitation
of Liability - Issuer
|
25
|
|
|
11.2
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Limitation
of Liability - Note Holder
|
26
|
|
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11.3
|
Wilful
Default of the Issuer and the Note Holder
|
27
|
|
|
12
|
Indemnities
|
28
|
|
|
12.1
|
General
indemnity
|
28
|
|
|
12.2
|
Continuing
indemnities and evidence of loss
|
28
|
|
|
12.3
|
Funds
available for indemnity
|
29
|
|
|
12.4
|
Negligence,
wilful default or breach of law
|
29
|
|
|
12.5
|
Notification
from Note Holder or OF Manager
|
29
|
|
|
13
|
Tax,
costs and expenses
|
29
|
|
|
13.1
|
Tax
|
29
|
|
|
13.2
|
Costs
and expenses
|
30
|
|
|
13.3
|
Goods
and services tax
|
30
|
|
|
14
|
Interest
on overdue amounts
|
31
|
|
|
14.1
|
Payment
of interest
|
31
|
|
|
14.2
|
Accrual
of interest
|
31
|
|
|
14.3
|
Rate
of interest
|
31
|
|
|
15
|
Assignment
|
32
|
|
|
15.1
|
Assignment
by Transaction Party
|
32
|
|
|
15.2
|
Assignment
by Note Holder and OF Manager
|
32
|
|
|
15.3
|
Assist
transfer or assignment
|
32
|
|
|
15.4
|
Participation
permitted
|
32
|
|
|
15.5
|
Lending
Office
|
32
|
|
|
15.6
|
Disclosure
|
32
|
|
|
15.7
|
No
increase in costs
|
32
|
|
|
16
|
General
|
33
|
|
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16.1
|
Confidential
information
|
33
|
|
|
16.2
|
Performance
by Note Holder of obligations
|
33
|
|
|
16.3
|
Transaction
Party to bear cost
|
33
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|
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16.4
|
Notices
|
33
|
|
|
16.5
|
Governing
law and jurisdiction
|
35
|
|
|
16.6
|
Prohibition
and enforceability
|
35
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|
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16.7
|
Waivers
|
35
|
|
|
16.8
|
Variation
|
35
|
|
|
16.9
|
Cumulative
rights
|
35
|
|
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16.10
|
Attorneys
|
36
|
|
|
16.11
|
Binding
Obligations
|
36
|
|
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16.12
|
Winding
up of Securitisation Fund
|
36
|
|
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16.13
|
Termination
clause
|
36
|
|
|
16.14
|
Counterparts
|
36
|
|
|
Schedule
1 - Funding Notice (clause 4.2)
|
37
|
||
|
Schedule
2 - Conditions
|
38
|
||
|
Schedule
3 - Facility Provider Funding Notice (clause 4.4)
|
42
|
||
|
Schedule
4 - Report on assessment of compliance with Regulation AB servicing
criteria
|
43
|
||
|
Schedule
5 - Servicing Criteria to be addressed in assessment of
compliance
|
44
|
||
Date
29 May 2007
Parties
Perpetual
Limited ABN
86
000 000 000 of Xxxxx 00, 000 Xxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx 0000 in its
capacity as trustee of the Securitisation Fund (as hereinafter defined)
(Issuer)
Perpetual
Limited ABN
86
000 000 000 of Xxxxx 00, 000 Xxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx 0000 in its
capacity as trustee of the Origination Fund (as hereinafter defined)
(Note
Holder)
ME
Portfolio Management Limited ABN
79
005
964 134 of
Xxxxx
00,
000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 0000 in its capacity as manager of
the
Securitisation Fund (SF
Manager)
ME
Portfolio Management Limited
ABN 79
005 964 134 of Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 0000 in its
capacity as manager of the Origination Fund (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:
|
1
|
Definitions
and interpretation
|
|
1.1
|
Definitions
|
In
this
agreement, unless the context otherwise requires:
Attorney
means an
attorney appointed under a Material Document;
Banking
Day
has the
meaning given to it by the Supplementary Bond Terms;
Base
Rate
means in
respect of a Funding Portion and a Payment Period:
|
(a)
|
the
rate percent per annum determined by the OF Manager by taking the
rates
quoted on the page entitled "BBSW" on the Reuters Monitor System
at or
about 10.10 am (Melbourne time) on the Funding Date by each Reference
Bank
(provided that at least 4 Reference Banks are quoting) as being
its mean
buying and
selling rate for a bank accepted Xxxx having a tenor equal to 90
days
eliminating one of the highest and one of the lowest mean
rates, and then calculating the average of the remaining mean
rates and then (if necessary) rounding up the resultant figure to
four
decimal places; or
|
|
(b)
|
if
in respect of any Funding Date the Base Rate cannot be determined
because:
|
|
(1)
|
less
than 4 Reference Banks have quoted their relevant rates;
or
|
|
(2)
|
the
Payment Period does not equal a tenor in relation to which at least
4
Reference Banks have quoted their relevant
rates,
|
on
the
page entitled "BBSW" on the Reuters Monitor System on the Funding Date, the
rate
percent per annum calculated by the OF Manager in accordance with paragraph
(a)
of this
definition but by taking the buying and
selling rates otherwise quoted by 4 of the Reference Banks on application by
the
OF Manager, for bank accepted Bills of the same tenor and a face value amount
of
A$1,000,000 each; or
|
(c)
|
if
in respect of any Funding Date the Base Rate cannot be determined
in
accordance with paragraphs (a)
or
(b)
of
this definition, the rate percent per annum determined by the OF
Manager
in good faith to be the rate most nearly approximating the rate that
would
otherwise have been calculated by the OF Manager in accordance with
paragraph (a)
of
this definition having regard to comparable indices then available
in the
then current xxxx market;
|
Xxxx
means a
xxxx of exchange as defined in the Bills of Exchange Act 1909 (Cth), but does
not include a cheque;
Card
and Cheque Facilities
means
any Card Facility and any Cheque and Direct Entry Facility;
Card
Facility
means
any facility in force in respect of the Origination Fund relating to the
provision of credit cards or debit cards;
Cheque
and Direct Entry Facility
means
any facility in force in respect of the Origination Fund relating to the
provision of either or both of direct entry facilities and cheque
facilities;
Class
A Note has
the
meaning given to it by the Supplementary Bond Terms;
Class
B Note has
the
meaning given to it by the Supplementary Bond Terms;
Commission
has
the
meaning given to it in the Supplementary Bond Terms;
Conditions
means
the terms and conditions as set out in schedule 2;
Designated
Rating Agency
has the
meaning given to it in the Master Trust Deed;
Dollars,
A$
and
$
means
the lawful currency of the Commonwealth of Australia;
Drawdown
Notice means
a
Funding Notice or a Facility Provider Funding Notice;
Event
of Default
means an
Event of Default as defined in the Security Trust Deed;
Exchange
Act has
the
meaning given to it by the Supplementary Bond Terms;
Excluded
Tax
means
any Tax imposed by any jurisdiction on the net income of the Note
Holder;
Facility
means
the redraw funding facility made available by the Note Holder to the Issuer
under this agreement (by purchase of Notes);
Facility
Provider
means
the provider of any of the Card and Cheque Facilities;
Facility
Provider Funding Notice
means a
notice given, or to be given, under clauses 4.3
and
4.4;
Funding
Date
means
the date on which a Note will be issued (as stipulated in the Funding Notice)
and the date on which a Funding Portion is, or is to be, advanced or regarded
as
advanced to the Issuer under this agreement;
Funding
Notice
means a
notice given, or to be given, under clauses 4.1
and
4.2;
Funding
Portion
means in
relation to any Note, the principal amount of that Note to be provided or
outstanding at that time (as the case may be);
Funding
Rate
means
for any Payment Period the rate per cent per annum which is the aggregate of
the
Base Rate for that Payment Period and the Margin;
Governmental
Agency
means
any government or any governmental, semi-governmental, administrative, fiscal
or
judicial body, department, commission, authority, tribunal, agency or entity;
GST
has
the
same meaning as in the A New Tax System (Goods and Services Tax) Xxx
0000;
Interest
Collections has
the
meaning given to it by the Supplementary Bond Terms;
Lending
Office
means
the office of the Note Holder set out on page 1 of this agreement or such other
office as notified by the Note Holder under this agreement;
Margin
means
that percentage notified by the OF Manager to the SF Manager on or about the
issue of a Note as the margin applicable to that Note;
Master
Trust Deed
means
the Master Trust Deed dated 4 July 1994 made between ME Portfolio Management
Limited and Perpetual Limited and providing for the establishment of a series
of
separate trusts known collectively as the Superannuation Members’ Home Loans
Trusts, as amended and restated from time to time;
Material
Documents
means:
|
(a)
|
this
agreement (including each Note);
and
|
|
(b)
|
the
Security Trust Deed; and
|
|
(c)
|
the
Supplementary Bond Terms;
|
Note
means a
note issued under clauses 2
and
4;
Note
Holder
means
Perpetual Limited (in its capacity as trustee of the Origination Fund) or any
person entitled to be registered as a Note Holder in accordance with this
agreement;
Officer
means:
|
(a)
|
in
relation to the Issuer and Note Holder, a director, secretary or
other
person whose title contains the word or words "manager" or "counsel"
or
“head” or a person performing the functions of any of them;
and
|
|
(b)
|
in
relation to the SF Manager and OF Manager, a director or a secretary,
or a
person notified to be an authorised officer of the relevant
party;
|
Origination
Fund
means
Superannuation Members’ Home Loans Origination Fund No. 3;
Outstanding
Moneys
means
all debts and monetary liabilities of the Issuer to the Note Holder under or
in
relation to any Material Document, irrespective of whether the debts or
liabilities:
|
(a)
|
are
present or future;
|
|
(b)
|
are
actual, prospective, contingent or
otherwise;
|
|
(c)
|
are
at any time ascertained or
unascertained;
|
|
(d)
|
are
owed or incurred by or on account of the Issuer alone, or severally
or
jointly with any other person;
|
|
(e)
|
are
owed to or incurred for the account of the Note Holder alone, or
severally
or jointly with any other person;
|
|
(f)
|
are
owed or incurred as principal, interest, fees, charges, taxes, duties
or
other imposts, damages (whether for breach of contract or tort or
incurred
on any other ground), losses, costs or expenses, or on any other
account;
or
|
|
(g)
|
comprise
any combination of the above;
|
Overdue
Rate
means on
any date the rate percent per annum which is the aggregate of 2% per annum
and
the Funding Rate;
Payment
Date
has the
meaning given to it under the Supplementary Bond Terms;
Payment
Period
means
the period from and including the last relevant Payment Date to but excluding
the next relevant Payment Date except that the first Payment Period will
commence on the relevant Funding Date and the last Payment Period will end
on
the Termination Date;
Power
means
any right, power, authority, discretion or remedy conferred on the Note Holder
or OF Manager, or a Receiver or an Attorney by any Transaction Document or
any
applicable law;
Principal
Collections has
the
meaning given to it by the Supplementary Bond Terms;
Principal
Outstanding
means at
any time the aggregate principal amount of all outstanding Funding Portions
at
that time;
Redraw
Amount
has the
same meaning as in clause 3.2(a);
Redraw
Facility
means a
facility contained in a loan or other form of financial accommodation the
repayment of which is secured by a mortgage granted or transferred to the
Issuer, which allows the mortgagor under that mortgage to redraw amounts prepaid
under that loan;
Reference
Bank
means
any one of Commonwealth Bank of Australia, Westpac Banking Corporation, National
Australia Bank Limited and Australia and New Zealand Banking Group
Limited;
Register
means
the register of Note Holders maintained by the Issuer;
Regulation
AB has
the
meaning given to it in the Supplementary Bond Terms;
Same
Day Funds
means
bank cheque or other immediately available funds;
Secured
Creditors
has the
meaning given to it in the Security Trust Deed;
Securitisation
Fund
means
the Securitisation Fund constituted under the Master Trust Deed known as SMHL
Global Fund 2007-1;
Security
Trust Deed
means
the security trust deed in respect of the Securitisation Fund dated 2 May 2007
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);
Supplementary
Bond Terms
means
the Supplementary Bond Terms Notice
in
respect of the Securitisation Fund and providing the terms of issue of Class
A
Notes and Class B Notes;
Tax
means:
|
(a)
|
any
tax (including GST), levy, charge, impost, duty, fee, deduction,
compulsory loan or withholding; or
|
|
(b)
|
any
income, stamp or transaction duty, tax or
charge,
|
which
is
assessed, levied, imposed or collected by any Governmental Agency and includes,
but is not limited to, any interest, fine, penalty, charge, fee or other amount
imposed on or in respect of any of the above;
Termination
Date
means
the day which is 1 Banking Day prior to the Final Maturity Date as defined
in
the Supplementary Bond Terms;
Transaction
Document
has the
meaning given to it in the Master Trust Deed and includes this agreement and
any
document or agreement entered into or given under it (including
Notes);
Transaction
Party
means:
|
(a)
|
the
Issuer; or
|
|
(b)
|
the
SF Manager.
|
|
1.2
|
Interpretation
|
In
this
agreement, headings and boldings are for convenience only and do not affect
the
interpretation of this agreement and, unless the context otherwise
requires:
|
(a)
|
words
importing the singular include the plural and vice
versa;
|
|
(b)
|
words
importing a gender include any
gender;
|
|
(c)
|
other
parts of speech and grammatical forms of a word or phrase defined
in this
agreement have a corresponding
meaning;
|
|
(d)
|
an
expression importing a natural person includes any company, partnership,
joint venture, association, corporation or other body corporate and
any
Governmental Agency;
|
|
(e)
|
a
reference to any thing (including, but not limited to, any right)
includes
a part of that thing;
|
|
(f)
|
a
reference to a part, clause, party, annexure, exhibit or schedule
is a
reference to a part and clause of, and a party, annexure, exhibit
and
schedule to, this agreement and a reference to this agreement includes
any
annexure, exhibit and schedule;
|
|
(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
page
6
Redraw
Funding Facility Agreement - SMHL Global Fund 2007-1
|
(q)
|
the
Issuer or the Note Holder will only be considered to have knowledge
or
awareness of, or notice of, a thing, or grounds to believe any thing,
by
virtue of the officers of the Issuer or the Note Holder having day
to day
responsibility for the administration of the Origination Fund or
the
Securitisation Fund (as the case may be) having actual knowledge,
actual
awareness or actual notice of that thing, or grounds or reason to
believe
that thing (and similar references will be interpreted in this way).
In
addition, notice, knowledge or awareness of an Event of Default means
notice, knowledge or awareness of the occurrence of the events or
circumstances constituting an Event of Default and that those events
or
circumstances constitute an Event of
Default.
|
|
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.
|
2
|
The
Notes
|
|
2.1
|
Application
for and Issue of Notes
|
(a) The
SF Manager may direct that the Issuer issues a Note to the Note Holder
by:
(1) directing
a Note be issued from SMHL Global Fund 2007-1;
(2) specifying
the principal amount of the Note required;
(3) specifying
the proposed date and time of issue of the Note; and
(4) providing
to the Note Holder and the OF Manager a Funding Notice (and a copy to the
Issuer) pursuant to clause 4.
(b) The
OF Manager may direct that the Issuer and the SF Manager cause the Issuer to
issue a Note to the Note Holder by:
(1) directing
a Note be issued from SMHL Global Fund 2007-1;
(2) specifying
the principal amount of the Note required;
(3) specifying
the proposed date and time of issue of the Note; and
(4) providing
to the Issuer and the SF Manager (and copy to the Noteholder) a Facility
Provider Funding Notice pursuant to clause 4.
(c) If
the SF Manager has directed that the Issuer issues a Note in accordance with
clause 2.1(a)
or the
OF Manager has directed that the Issuer issues a Note in accordance with clause
2.1(b),
the
Note Holder must subscribe for the Note as directed by the SF Manager, and
the
Issuer must, on the terms of this agreement, issue the Note to the Note Holder
in consideration for the principal amount provided that the OF Manager and
Note
Holder have complied with clause 5.1.
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(d) The
parties agree that the terms and conditions contained in this agreement, the
Supplementary Bond Terms and the Security Trust Deed govern the issue and
repayment of the Notes.
2.2 Acknowledgment
of Indebtedness
The
Issuer acknowledges its indebtedness to the Note Holder in respect of each
Note
issued under this agreement.
2.3 Obligations
under Notes
(a) The
obligations of the Issuer under the Notes are constituted by, and specified
in,
this agreement and in the Conditions.
(b) Each
Note is a separate debt of the Issuer.
(c) The
entitlement of any person to a Note is determined by registration as a Note
Holder of that Note.
(d) The
making of, or giving effect to, a manifest error in an inscription in the
Register will not avoid the creation or transfer of a Note.
2.4 Ownership
of Notes
(a) A
Note may be transferred by the Note Holder to any person in accordance with
this
agreement.
(b) The
person whose name is registered as the Note Holder of a Note in the Register
will be, and will be treated by the Issuer as, the absolute owner of the
Note.
2.5 Register
The
Issuer must:
(a) establish
and maintain the Register;
(b) enter
in the Register in respect of each Note:
(1) the
principal amount and principal outstanding in respect of each Note;
(2) its
date of issue and date of redemption and cancellation; and
(3) the
date on which any person becomes, or ceases to be, a Note Holder.
3 Redraw
Facilities
3.1 Purpose
The
Issuer must, and the SF Manager must cause the Issuer to, only use the net
proceeds of a Funding Portion to:
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(a) provide
funds requested under a Redraw Facility; and
(b) reimburse
the Note Holder for amounts paid or payable by the Note Holder to a Facility
Provider under or in respect of the Card and Cheque Facilities to fund a redraw
under a Redraw Facility provided by the Issuer.
3.2 Loan
Redraws
(a) The
OF Manager must notify the SF Manager by such time as they may agree on each
Banking Day all amounts payable by the Note Holder on that Banking Day to a
Facility Provider under or in respect of the Card and Cheque Facilities to
fund
redraws under Redraw Facilities provided by the Issuer (Redraw
Amount).
(b) The
Issuer must and the SF Manager must cause the Issuer to pay to the Note Holder
on each Banking Day an amount equal to the Redraw Amount for that Banking Day.
The amount payable under this clause 3.2(b)
must be
paid by such time as the parties may from time to time agree.
(c) Except
as expressly provided under this agreement, the Issuer has no obligation to
reimburse the Note Holder for any amounts paid or payable by the Note Holder
to
a Facility Provider under or in respect of the Facilities to fund redraws under
Redraw Facilities provided by the Issuer.
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 not later than 10.00 am on
the
Banking Day which is the Funding Date; and
(c) must
be signed by an Officer of the SF Manager.
4.3 Delivery
of Facility Provider Funding Notice
If
the OF
Manager determines that the Note Holder has, subject to clause 3,
an
obligation to a Facility Provider to fund a redraw under a Redraw Facility
provided by the Issuer, the OF Manager must deliver to the Issuer and the
SF Manager a Facility Provider Funding Notice in accordance with this
clause 4.
4.4 Requirements
for a Facility Provider Funding Notice
A
Facility Provider Funding Notice:
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(a) must
be in writing in the form of, and specifying the matters set out in schedule
3;
(b) must
be received by the Issuer and the SF Manager not later than 12.00 noon on
the Banking Day which is the Funding Date; and
(c) must
be signed by an Officer of the OF Manager.
4.5 Copy
of the Funding
Notice
(a) A
copy of each Funding Notice must be provided to the Issuer at the same time
it
is given to the Note Holder and the OF Manager.
(b) A
copy of each Facility Provider Funding Notice must be provided to the Note
Holder at the same time it is given to the Issuer and the SF
Manager.
4.6 Irrevocability
of Drawdown Notice
The
Note
Holder and the OF Manager must not decline to provide the funding specified
in a
Drawdown Notice. Following the issue of the Drawdown 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 or the Facility Provider Funding Notice given by the OF Manager
(as the case may be).
4.7 Notification
of Funding Rate
(a) After
the OF Manager has determined the Base Rate for a Payment Period it must
promptly notify the Issuer and SF Manager in writing of the Funding Rate for
that Payment Period, specifying both the Base Rate and the Margin.
(b) In
the absence of manifest error, each determination of the Base Rate by the OF
Manager is conclusive evidence of that rate against the Issuer and the SF
Manager.
5
Loan Facility
5.1 Provision
of Funding Portions
(a) If
the SF Manager gives a Funding Notice in accordance with clause 4,
then,
subject to this agreement (including, without limitation, clause 11),
the
Note Holder must, and the OF Manager must cause the Note Holder to, provide
the
relevant Funding Portion under the Facility as payment for the relevant Note
in
Same Day Funds in Dollars not later than 12 noon (Melbourne time) on the
specified Funding Date and in accordance with that Funding Notice.
(b) If
the OF Manager gives a Facility Provider Funding Notice in accordance with
clause 4
then,
subject to this agreement (including, without limitation, clause 11),
the
Note Holder is deemed to have provided the relevant Funding Portion under the
Facility as payment for the Note on the specified Funding Date and in accordance
with that Facility Provider Funding Notice. This clause 5.1(b)
has
application only to the extent that the Note Holder has made or has an
obligation to make a payment to a Facility Provider under a Card and Cheque
Facility in respect of Redraw Facilities provided by the Issuer on that
day.
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5.2 Repayment
On
each
relevant Payment Date and to the extent that during the Payment Period it has
not done so, the Issuer must, and the SF Manager must cause the Issuer
to:
(a) repay
so much of the Principal Outstanding (to the extent that funds are available
from the Securitisation Fund) as the Issuer is required to apply from Interest
Collections to repayment of any principal due and payable under any Redraw
Funding Facility pursuant to clauses 6.1(a)(14) and 6.1(c)(14) of the
Supplementary Bond Terms; and
(b) repay
so much of the Principal Outstanding (to the extent that funds are available
from the Securitisation Fund) (after the repayment in clause 5.2(a))
as the
Issuer is required to apply from Principal Collections to repayment of any
Redraw Principal Outstanding under a Redraw Funding Facility pursuant to
clauses 6.2(a)(5) and 6.2(c)(5) of the Supplementary Bond
Terms.
5.3 Repayment
of Outstanding Moneys
(a) The
Principal Outstanding under the Facility must be repaid by the Issuer to the
Note Holder:
(1) in
full on the Termination Date; and
(2) otherwise
as specified in, or required under, the Transaction Documents,
and
the
SF Manager must cause the Issuer to do so.
(b) The
Issuer must, and the SF Manager must cause the Issuer to, pay or repay the
balance of the Outstanding Moneys in full to the Note Holder on the Termination
Date or on such other date on which the Principal Outstanding is, or is required
to be, repaid in full.
5.4 Interest
(a) On
each relevant Payment Date, the Issuer must, and the SF Manager must cause
the
Issuer to, pay to the Note Holder interest (to the extent that funds are
available from the Securitisation Fund) on the Principal Outstanding at the
Funding Rate:
(1) in
relation to any Funding Portion drawn during the current Payment Period, for
the
period from and including the relevant Funding Date to but excluding the
relevant Payment Date; and
(2) in
relation to the remainder of the Principal Outstanding, for the Payment Period,
to
the
extent to which the Issuer is required to apply from Interest Collections to
payment of any interest due under any Redraw Funding Facility pursuant to
clauses 6.1(a)(4) and 6.1(c)(4) of the Supplementary Bond
Terms.
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Funding Facility Agreement - SMHL Global Fund 2007-1
(b) If
on any relevant Payment Date, interest in respect of the relevant Payment Period
is not paid on the whole amount of the Principal Outstanding:
(1) that
unpaid interest shall accrue interest at the Overdue Rate for the next Payment
Period;
(2) that
unpaid interest and interest accrued under clause 5.4(b)(1)
shall
become payable on the next relevant Payment Date to the extent to which (after
payment of interest under clause 5.4(a))
the
Issuer is required to apply from Interest Collections to payment of interest
due
under any Redraw Funding Facility pursuant to clauses 6.1(a)(4) and
6.1(c)(4) of the Supplementary Bond Terms; and
(3) to
the extent to which any unpaid interest (including any interest accrued under
clause 5.4(b)(1))
remains
unpaid after that next relevant Payment Date it will again be subject to
clauses 5.4(b)(1)
and
5.4(b)(2)
for each
subsequent Payment Period and relevant Payment Date until it has been
paid.
(c) Interest
must be calculated in arrears on daily balances on the basis of a 365 day year
and for the actual number of days elapsed during the relevant
period.
5.5 Order
of Repayment
(a) In
making repayments under clauses 5.2
and
5.3,
the
Issuer must, and the SF Manager must cause the Issuer to, apply the amount
of
the repayment to repay the Principal Outstanding under the Notes in order of
the
date of issue of the Notes so that the Notes issued earlier in time are repaid
first.
(b) The
Note Holder must, and the OF Manager must cause the Note Holder to, apply
repayments in accordance with clause 6.3(a).
(c) The
OF Manager must advise the Issuer and the SF Manager in writing of the Notes
which have been wholly or partly repaid, the amount of the repayment and the
Principal Outstanding under that Note.
6
Payments
6.1 Manner
of payments
All
payments to the Note Holder under the Material Documents must be
made:
(a) in
Same Day Funds;
(b) in
Dollars; and
(c) not
later than 11:00 am (Melbourne time) on the due date,
to
the
account of the Note Holder specified by the OF Manager to the Issuer or in
such
other manner to an account of the Note Holder as the OF Manager directs from
time to time.
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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) first,
towards reimbursement of all fees, costs, expenses, charges, damages and
indemnity payments incurred or due and owing by the Transaction Parties under
the Material Documents;
(2) second,
towards payment of interest due and payable under the Material Documents;
and
(3) third,
towards repayment of the Principal Outstanding.
(b) Any
appropriation under clause 6.3(a)
overrides any appropriation made by the Issuer.
6.4 Payments
in gross
All
payments which a Transaction Party is required to make under any Material
Document must be:
(a) without
any set-off, counterclaim or condition; and
(b) without
any deduction or withholding for any Tax or any other reason, unless, the
Transaction Party is required to make a deduction or withholding by applicable
law.
6.5 Taxation
deduction procedures
If
a
Transaction Party is required to make a deduction or withholding in respect
of
Tax from any payment to be made to the Note Holder under any Material Document,
then:
(a) that
Transaction Party has no obligation to indemnify the Note Holder against that
tax; and
(b) that
Transaction Party must, and in the case of the Issuer, the SF Manager must
cause
the Issuer to, use its best endeavours to obtain official receipts or other
documentation from that Governmental Agency and within 2 Banking Days after
receipt the Issuer must, and the SF Manager must cause the Issuer to, deliver
them to the Note Holder.
6.6 Amounts
payable on demand
If
any
amount payable by a Transaction Party under any Material Document is not
expressed to be payable on a specified date that amount is payable by the
Transaction Party on demand by the Note Holder or OF Manager.
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7 Representations
and warranties
7.1 By
the Issuer
The
Issuer hereby represents and warrants to the OF Manager and Note Holder
that:
(a) (Due
Incorporation):
it is
duly incorporated and has the corporate power to own its property and to carry
on its business as is now being conducted;
(b) (Constitution):
the
execution delivery and performance of this agreement and any Note does not
and
will not violate its constitution;
(c) (Corporate
Power):
it has
the power and has taken all corporate and other action required to enter into
this agreement and each Note and to authorise the execution and delivery of
this
agreement and each Note and the performance of its obligations
thereunder;
(d) (Filings):
it has
filed all corporate notices and effected all registrations with the Australian
Securities and Investments Commission or similar office in the jurisdiction
of
incorporation and in any other jurisdiction as required by law and all such
filings and registrations are current, complete and accurate except:
(1) as
such enforceability may be limited by any applicable bankruptcy, insolvency,
re-organisation, moratorium or trust or other similar laws affecting creditors’
rights generally; and
(2) that
this representation and warranty does not apply to the filing of ASIC form
309
or ASIC form 350 in relation to the creation and stamping of the Charge (as
defined in the Security Trust Deed);
(e) (Legally
Binding Obligation):
this
agreement and each Note constitutes or will constitute a valid, legally binding
and enforceable obligation of it in accordance with its terms except as such
enforceability may be limited by any applicable bankruptcy, insolvency,
reorganisation, moratorium or trust laws or other similar laws affecting
creditors' rights generally;
(f) (Execution,
Delivery and Performance):
the
execution, delivery and performance of this agreement and each Note by it does
not violate any existing law or regulation or any document or agreement to
which
it is a party in either case in its capacity as trustee of the Securitisation
Fund or which is binding upon it or any of its assets in its capacity as trustee
of the Securitisation Fund;
(g) (Authorisation):
all
consents, licences, approvals and authorisations of every Governmental Agency
required to be obtained by it in connection with the execution and delivery
of,
and performance of its obligations under, this agreement and any Note have
been
obtained and are valid and subsisting;
(h) (Securitisation
Fund Validly Created):
the
Securitisation Fund has been validly created and is in existence at the date
of
this agreement;
(i) (Sole
Trustee):
it has
been validly appointed as trustee of the Securitisation Fund and is presently
the sole trustee of the Securitisation Fund;
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(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.
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.
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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.
8 Undertakings
8.1 Term
of undertakings
Unless
the OF Manager otherwise agrees in writing, until the Outstanding Moneys are
fully and finally repaid the Issuer and the SF Manager must, at its own cost
(but without prejudice to clause 11
in the
case of the Issuer), comply with the undertakings in this clause 8.
8.2 Compliance
with Covenants
The
Issuer must and the SF Manager must ensure that the Issuer does comply with
all
of its covenants and obligations under the Security Trust Deed and Supplementary
Bond Terms.
8.3 Notify
Events of Default
On
and
from the Termination Date, each of the SF Manager and the Issuer must
immediately notify all the other parties to this agreement in writing if it
becomes actually aware of the occurrence of any Event of Default and must
provide full and complete details in relation thereto immediately upon becoming
actually aware of such details.
8.4 Know
your customer
Subject
to any confidentiality, privacy or general trust law obligations owed by the
Issuer to Bondholders and any applicable confidentiality or privacy laws, except
to the extent those obligations or laws are overridden by applicable anti-money
laundering or counter-terrorism financing laws, each party hereto (Information
Provider)
agrees
to provide any information and documents reasonably required by another party
hereto (Information
Receiver)
for the
Information Receiver 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. The Information
Receiver may, to the extent required by law, decline to perform its affected
obligations under the Transaction Documents to which it is a party. Any
Information Receiver receiving information and documents pursuant to this clause
8.4 agrees to utilize such information and documents solely for the purpose
of
complying with applicable anti-money laundering or counter-terrorism financing
laws.
8.5 Compliance
with Regulation AB
In
relation to compliance with Regulation AB:
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Funding Facility Agreement - SMHL Global Fund 2007-1
(a) the
SF Manager and the Issuer acknowledge and agree that the purpose of this clause
8.5
is to
facilitate compliance by the Issuer in relation to the Securitisation Fund
with
the provisions of Regulation AB and related rules and regulations of the
Commission to the extent applicable to the Issuer;
(b) the
SF Manager shall not exercise its right to request delivery of information
or
other performance under these provisions other than as required to comply with
the Securities Act, the Exchange Act and the rules and regulations of the
Commission thereunder, including Regulation AB, with respect to the
Securitisation Fund. The SF Manager shall not request the delivery of
information or other performance under this clause 8.5
unless
the SF Manager is required under the Exchange Act to file an annual report
on
Form 10-K with respect to the Securitisation Fund. The SF Manager and the Issuer
acknowledge that interpretations of the requirements of Regulation AB may change
over time, whether due to interpretive guidance provided by the Commission
or
its staff, consensus among participants in the asset-backed securities markets,
advice of counsel, or otherwise, and agrees to comply with requests made by
the
SF Manager in good faith for delivery of information under these provisions
on
the basis of evolving interpretations of Regulation AB; provided that, to the
extent the SF Manager and the Issuer do not agree with respect to an
interpretation of Regulation AB, the SF Manager and the Issuer shall obtain
a
written opinion of counsel of U.S. national reputation in the practice of U.S.
federal securities laws reasonably acceptable to the SF Manager and the Issuer,
addressed to the SF Manager and the Issuer, stating the opinion of such counsel
with respect to the interpretation of the relevant provision(s) of Regulation
AB; provided, further, that the costs and fees of such counsel incurred in
the
preparation of such written opinion shall be divided equally between the SF
Manager and the Issuer. In relation to the Securitisation Fund, the Issuer
shall
cooperate fully with the SF Manager to deliver to the SF Manager (including
any
of its assignees or designees), any and all statements, reports, certifications,
records and any other information within the control of the Issuer or for which
the Issuer is responsible necessary in the good faith determination of the
SF
Manager to permit the SF Manager to comply with the provisions of Regulation
AB,
together with such disclosures relating to the SF Manager, the Issuer, any
Subcontractor of the Issuer, the Loans, the servicing of the Loans or any other
servicing activities within the meaning of Item 1122 of Regulation AB,
reasonably believed by the SF Manager to be necessary in order to effect such
compliance;
(c) the
SF Manager (including any of its assignees or designees) shall cooperate with
the Issuer by providing timely notice of requests for information under these
provisions following the SF Manager becoming aware that it is required under
the
Exchange Act to file an annual report on Form 10-K in any year and by reasonably
limiting such requests to information required, in the SF Manager’s reasonable
judgment, to comply with Regulation AB;
(d) the
Issuer acknowledges and agrees that, to the extent the SF Manager reasonably
determines, upon consultation with, and to the extent agreed with, the Issuer,
that the Issuer is “participating in the servicing function” in relation to the
Securitisation Fund within the meaning of Item 1122 of Regulation AB, the Issuer
will comply with the applicable requirements contained in clause 8.5(e)
-
(i);
provided that, to the extent the SF Manager and the Issuer do not agree whether
the Issuer is “participating in the servicing function” with respect to one or
more Servicing Criteria within the meaning of Item 1122 in relation to the
Securitisation Fund, the SF Manager and the Issuer shall obtain a written
opinion of counsel of U.S. national reputation in the practice of U.S. federal
securities laws reasonably acceptable to the SF Manager and the Issuer,
addressed to the SF Manager and the Issuer, stating whether, in the opinion
of
such counsel, the Issuer is “participating in the servicing function” with
respect to such Servicing Criteria within the meaning of Item 1122 in relation
to the Securitisation Fund; provided, further, that the costs and fees of such
counsel incurred in the preparation of such written opinion shall be divided
equally between the SF Manager and the Issuer;
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(e) on
or before September 1 of each calendar year, commencing in 2007, the Issuer
shall upon the reasonable request of the Manager:
(1) deliver
to the SF Manager a report (in form and substance reasonably satisfactory to
the
SF Manager) regarding the Issuer’s assessment of compliance with the Servicing
Criteria during the immediately preceding financial year ended June 30, as
required under Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of
Regulation AB. Such report shall be addressed to the SF Manager and signed
by an
authorized officer of the Issuer, and shall address each of the Servicing
Criteria specified on a certification substantially in the form of Schedule
4
hereto and addressing, at a minimum, the criteria identified in Schedule 5
hereto as “Applicable Servicing Criteria”, but only with respect to such of the
Servicing Criteria that the Issuer performs;
(2) deliver
to the SF Manager a report of a registered public accounting firm reasonably
acceptable to the SF Manager that attests to, and reports on, the assessment
of
compliance made by the Issuer and delivered pursuant to the preceding paragraph.
Such attestation shall be in accordance with Rules 1-02(a)(3) and 2-02(g) of
Regulation S-X under the Securities Act and the Exchange Act;
(3) cause
each Subcontractor of the Issuer (if any) determined by the Issuer pursuant
to
clause 8.5
to be
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, to deliver to the SF Manager an assessment of compliance and
accountants’ attestation as and when provided in clause 8.5(e)(1)
and
(2),
but
only with respect to such of the Servicing Criteria that such Subcontractor
of
the Issuer performs;
An
assessment of compliance provided by a Subcontractor of the Issuer pursuant
to
clause 8.5(e)(3)
need not
address any elements of the Servicing Criteria other than those specified by
the
Issuer pursuant to clause 8.5(f),
and
need only address such of the Servicing Criteria that such Subcontractor
performs;
(f) in
relation to the use of Subcontractors:
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(1) the
Issuer shall promptly upon the reasonable request of the SF Manager provide
to
the SF Manager (or any designee of the SF Manager) a written description (in
form and substance satisfactory to the SF Manager) of the role and function
of
each Subcontractor utilized by the Issuer, specifying:
(A) the
identity of each such Subcontractor;
(B) which
(if any) of such Subcontractors are "participating in the servicing function"
within the meaning of Item 1122 of Regulation AB; and
(C) which
elements of the Servicing Criteria will be addressed in assessments of
compliance provided by each Subcontractor identified pursuant to clause
8.5(f)(1)(B);
(2) as
a condition to the utilization of any Subcontractor determined to be
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, (i) the Issuer shall cause any such Subcontractor used by the
Issuer for the benefit of the SF Manager to comply with the provisions of
clauses 8.5(e)
-
(i),
8.6
and
8.7
of this
agreement to the same extent as if such Subcontractor were the Issuer (provided
that in the case of a Subcontractor of the Issuer, the obligations of such
Subcontractor under clause 8.5(g)
will be
owed directly to the SF Manager and the Issuer will do all things reasonably
necessary to cause the Subcontractor to owe such obligations directly to the
SF
Manager) and (ii) the Issuer shall obtain the written consent of the SF Manager
(which is not to be unreasonably withheld or delayed) to the utilization of
such
Subcontractor. The Issuer shall be responsible for obtaining from each
Subcontractor and delivering to the SF Manager any assessment of compliance
and
accountants’ attestation required to be delivered by such Subcontractor under
clause 8.5(e)
-
(i),
in each
case as and when required to be delivered;
(g) the
Issuer shall indemnify the SF Manager and shall hold the SF Manager harmless
from and against any losses, damages, penalties, fines, forfeitures, legal
fees
and expenses and related costs, judgments, and any other costs, fees and
expenses that it sustains directly as a result of:
(1) any
untrue statement of a material fact contained or alleged to be contained in
any
information, report, certification, accountants’ letter or other material
provided in written or electronic form under this clause 8.5
by or on
behalf of the Issuer, or provided under this clause 8.5
by or on
behalf of any Subcontractor of the Issuer (collectively, the "Issuer
Information"); provided that in the case of any untrue statement of a material
fact contained or alleged to be contained in the accountant's letter, the Issuer
will indemnify and hold harmless the SF Manager only to the extent of the sum
that the Issuer recovers from the accounting firm providing such accountant's
letter (which recovery the Issuer must if the Issuer in good faith determines
the Issuer is entitled to do so after taking professional advice pursue
including by taking action in any relevant court of competent jurisdiction);
provided, further, that the Issuer will not indemnify and hold harmless the
SF
Manager to the extent that the untrue statement of a material fact contained
or
alleged to be contained in the Issuer Information relates to information
provided to the Issuer by the SF Manager or any other party to enable the Issuer
to complete its duties under the Transaction Documents; or
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(2) the
omission or alleged omission to state in the Issuer Information a material
fact
required to be stated in the Issuer Information or necessary in order to make
the statements therein, in the light of the circumstances under which they
were
made, not misleading; provided, by way of clarification, that this clause
8.5(g)(2)
shall be
construed solely by reference to the Issuer Information and not to any other
information communicated in connection with a sale or purchase of securities,
without regard to whether the Issuer Information or any portion thereof is
presented together with or separately from such other information; provided,
further, that in the case of the omission or alleged omission to state in an
accountant's letter a material fact required to be stated in the accountant's
letter or necessary in order to make the statements therein, in the light of
the
circumstances under which they were made, not misleading, the Issuer will
indemnify and hold harmless the SF Manager only to the extent of the sum that
the Issuer recovers from the accounting firm providing such accountant's letter
(which recovery the Issuer must if the Issuer in good faith determines the
Issuer is entitled to do so after taking professional advice pursue including
by
taking action in any relevant court of competent jurisdiction); provided,
further, that the Issuer will not indemnify and hold harmless the SF Manager
to
the extent that the omission or alleged omission to state in the Issuer
Information a material fact required to be stated in the Issuer Information
or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, relates to information
provided to the Issuer by the SF Manager or any other party to enable the Issuer
to complete its duties under the Transaction Documents; or
(3) any
failure by the Issuer or any Subcontractor of the Issuer to deliver any
information, report, certification, accountants’ letter or other material when
and as required under this clause 8.5,
including any failure by the Issuer to disclose any non-compliance with any
of
the Servicing Criteria in a certification or to identify pursuant to clause
8.5(f)
any
Subcontractor "participating in the servicing function" within the meaning
of
Item 1122 of Regulation AB. In the case of any failure of performance described
in clause 8.5(g)(3),
the
Issuer shall promptly reimburse the SF Manager, for all costs reasonably
incurred by the SF Manager in order to obtain the information, report,
certification, accountants’ letter or other material not delivered as required
by the Issuer or any Subcontractor of the Issuer;
(h) any
failure by the Issuer or any Subcontractor of the Issuer to:
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(1) deliver
any information, report, certification, accountants’ letter or other material
when and as required under this clause 8.5,
shall,
except as provided in clause 8.5(h)(2),
immediately and automatically, without notice or grace period, entitle the
SF
Manager, in its sole discretion:
(A) to
remove the Issuer or direct the Issuer to remove the Subcontractor of the Issuer
from the performance of any activities which the SF Manager reasonably
determines to constitute “participating in the servicing function” in relation
to the Securitisation Fund within the meaning of Item 1122 of Regulation AB;
and
(B) to
replace such party with respect to such activities, each at the expense of
the
Issuer, without payment (notwithstanding anything in the Transaction Documents
to the contrary) of any compensation to the Issuer; provided that to the extent
that any provision of the Transaction Documents expressly provides for the
survival of certain rights or obligations following termination of the Issuer,
such provision shall be given effect;
(2) deliver
any information, report, certification or accountants’ letter when and as
required under clause 8.5(e)
-
(i)
or
(except as provided below) any failure by the Issuer to identify pursuant to
clause 8.5(f)
any
Subcontractor of the Issuer "participating in the servicing function" within
the
meaning of Item 1122 of Regulation AB, which continues unremedied for ten
calendar days after the date on which such information, report, certification
or
accountants’ letter was required to be delivered, shall entitle the SF Manager,
in its sole discretion:
(A) to
remove the Issuer or direct the Issuer to remove the Subcontractor of the Issuer
from the performance of any activities which the SF Manager reasonably
determines to constitute “participating in the servicing function” in relation
to the Securitisation Fund within the meaning of Item 1122 of Regulation AB;
and
(B) to
replace such party with respect to such activities, in the case of the Issuer
or
any Subcontractor of the Issuer, at the expense of the Issuer, without payment
(notwithstanding anything in the Transaction Documents to the contrary) of
any
compensation to the Issuer;
provided
that to the extent that any provision of the Transaction Documents expressly
provides for the survival of certain rights or obligations following termination
of the Issuer, such provision shall be given effect; and
(i) the
Issuer shall promptly reimburse the SF Manager (or any designee of the SF
Manager), for all reasonable expenses incurred by the SF Manager (or such
designee), as such are incurred, in connection with the termination of the
Issuer and the transfer of servicing activities within the meaning of Item
1122
of Regulation AB to a successor. The provisions of this clause 8.5(i)
shall
not limit whatever rights the SF Manager may have under other provisions of
the
Transaction Documents or otherwise, whether in equity or at law, such as an
action for damages, specific performance or injunctive relief.
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8.6 Direction
of claims by the SF Manager
(a) If
the Issuer is entitled to recover from the accounting firm providing the
accountant's letter referred to in clause 8.5(g)
by any
action, proceeding, claim or demand (for the purpose of this clause 8.6,
a
Claim),
the
Issuer must if the Issuer in good faith determines that it is entitled to do
so
after taking professional advice pursue such Claim and must promptly notify
the
SF Manager in writing of such Claim.
(b) Upon
notice to the SF Manager of any such Claim under clause 8.6(a),
the SF
Manager will have the option to assume the direction of that Claim (including
the employment of legal advisers selected by the Issuer but approved by the
SF
Manager subject to the payment by the Issuer of all fees and
expenses).
(c) If
the Issuer receives notice from the SF Manager of its election to direct the
Claim and the SF Manager approves the legal advisers selected by the Issuer
for
the purposes of that Claim, the Issuer will not be liable to the SF Manager
under this clause 8.6
for any
fees or expenses subsequently incurred by the SF Manager in connection with
the
Claim unless the Issuer does not employ legal advisers approved by or on behalf
of the SF Manager to represent the SF Manager within a reasonable time after
notice of the Claim.
8.7 Direction
of defence of claims
(a) If
any action, proceeding, claim or demand brought against the SF Manager in
connection with (i) any untrue statement of a material fact contained or alleged
to be contained in the Issuer Information referred to in clause 8.5(g)
or (ii)
the omission or alleged omission to state in the Issuer Information a material
fact required to be stated in the Issuer Information or necessary in order
to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading (for the purpose of this clause 8.7,
a
Claim),
the
Issuer will have the option to assume the direction of that Claim (including
the
employment of legal advisers selected by the Issuer but approved by the SF
Manager subject to the payment by the Issuer of all fees and
expenses).
(b) If
the Issuer notifies the SF Manager in writing of its election to direct the
defence of a Claim brought against the Issuer and the SF Manager approves the
legal advisers selected by the Issuer for the purposes of the defence of that
Claim, the Issuer will not be liable to the SF Manager under this clause
8.7
for any
fees or expenses subsequently incurred by the SF Manager in connection with
the
Claim against the Issuer unless the Issuer does not employ legal advisers
approved by or on behalf of the SF Manager to represent the Issuer within a
reasonable time after notice of the Claim.
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(c) If
any Claim brought against the Issuer is settled with respect to the Issuer
with
the consent of the SF Manager or if there is a final judgement against the
Issuer in relation to it, the Issuer agrees to indemnify and hold harmless
the
SF Manager from and against any loss or liability by reason of such settlement
or judgement (other than any fees and expenses incurred in circumstances where
the Issuer is not liable for them under clause 8.7(b),
or any
fees and expenses incurred in connection with any Claim brought against the
Issuer that is settled with respect to the Issuer or compromised by the Issuer
without the consent of the SF Manager (unless the SF Manager has unreasonably
withheld its consent)).
9 Events
of Default
9.1 Effect
of Event of Default
(a) Upon
or at any time after the occurrence of an Event of Default the Note Holder
or
the OF Manager may by notice to the Issuer and the SF Manager declare that
the
Outstanding Moneys are immediately due and payable.
(b) The
Issuer must and the SF Manager must cause the Issuer to upon receipt of a notice
under clause 9.1(a)
immediately repay in full the Outstanding Moneys to the Note
Holder.
9.2 Issuer
to continue to perform
(a) If
the Note Holder or OF Manager makes any declaration under clause 9.1:
(1) the
declaration does not affect or diminish the duties and obligations of the Issuer
or the SF Manager under the Transaction Documents; and
(2) each
of the Issuer and the SF Manager must continue to perform its obligations under
the Transaction Documents as if the declaration had not been made, subject
to
any directions that may be given by the Note Holder or the OF Manager from
time
to time under any Transaction Document.
(b) Clause
9.2(a)
does not
affect the obligations of the Issuer or the SF Manager under clause
9.1.
9.3 Enforcement
(a) The
Material Documents may be enforced without notice to or consent by the Issuer
or
SF Manager or any other person even if the Note Holder accepts any part of
the
Outstanding Moneys after an Event of Default or there has been any other Event
of Default.
(b) Neither
the Note Holder nor the OF Manager is liable to any Transaction Party for any
loss or damage a Transaction Party may suffer, incur or be liable for arising
out of or in connection with the Note Holder or OF Manager exercising any
Power under any Material Document.
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10 Increased
costs, illegality and yield protection
10.1 Increased
costs
If
the OF
Manager determines that the Note Holder is affected by any future, or any change
in any present or future, law, regulation, order, treaty, official directive
or
request (with which, if not having the force of law, compliance is in accordance
with the practice of responsible bankers and financial institutions in the
jurisdiction concerned) including, but not limited to in respect
of:
(a) any
reserve, liquidity, capital adequacy, capital allocation, special deposit or
similar requirement; or
(b) Tax
(other than Excluded Tax in respect of the Securitisation Fund) on or in respect
of payments made or to be made to the Note Holder under a Material
Document,
or
a
present or future interpretation or administration of any of them by a
Governmental Agency, and that, as a result:
(c) the
effective cost to the Note Holder of making, funding or maintaining the Facility
or the Principal Outstanding or performing any of its obligations under or
in
respect of the Material Documents is in any way directly or indirectly
increased; or
(d) any
amount paid or payable to, or received or receivable by, the Note Holder or
the
effective return to the Note Holder under the Material Documents is in any
way
directly reduced; or
(e) the
Note Holder is required to make any payment or forego any interest or other
return on or calculated by reference to:
(1) any
sum received or receivable by it under or in respect of the Material Documents
in an amount which the OF Manager considers material; or
(2) any
capital or other amount which is or becomes directly or indirectly allocated
by
the Note Holder to the Principal Outstanding in an amount which the OF Manager
considers material; or
(f) the
Note Holder is restricted in its capacity to enter into, or is prevented from
entering into, any other transaction with any consequence referred to in clause
10.1(c),
10.1(d)
or
10.1(e)
or with
any other cost or loss of return to the Note Holder,
then,
and
in each such case:
(g) when
it becomes aware of the relevant result and has calculated or otherwise
determined the relevant effects the Note Holder must and the OF Manager
must cause the Note Holder to promptly notify each Transaction Party of such
event; and
(h) the
Issuer and the SF Manager have no obligation to pay any amount to compensate
the
Note Holder for such increased cost, reduction, payment or foregone interest
or
other loss of return.
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10.2 Illegality
If
any
event occurs (including, but not limited to, any change in, or the introduction,
implementation, operation or taking effect of, any law, regulation, treaty,
order or official directive, or in their interpretation or application by any
Governmental Agency) which makes it unlawful, or impracticable for the Note
Holder to make, fund or maintain the Principal Outstanding or for the Note
Holder or OF Manager to perform its obligations under any Material Documents
then:
(a) the
obligations of the Note Holder and the OF Manager under the Material Documents
are immediately suspended for the duration of such illegality or other effect;
and
(b) the
Note Holder and the OF Manager may, by notice to the Issuer terminate its
obligations under the Material Documents; and
(c) if
required by the applicable event, or its effect, or if necessary to prevent
or
remedy a breach or to comply with any applicable law, regulation, treaty, order
or official directive the Issuer must and the SF Manager must cause it to
immediately prepay to the Note Holder the Outstanding Moneys of it in full
or,
if in the OF Manager's opinion delay in prepayment does not compound such breach
or affect such compliance, at the end of at least the longer of 30 days and
the
period ending on the next occurring relevant Payment Date (or such lesser period
if the applicable law, regulation, treaty, order or official directive requires)
upon prior notice to that effect from the OF Manager.
11 Trustee
Limitation of Liability Protection
11.1 Limitation
of Liability - Issuer
(a) Clause
26 of the Master Trust Deed applies to the obligations and liabilities of the
Issuer and SF Manager under this agreement.
(b) The
Issuer enters into this agreement in its capacity as trustee of the
Securitisation Fund and in no other capacity (except where the Transaction
Documents provide otherwise). Subject to clause 11.1(d),
a
liability of the Issuer arising under or in connection with this agreement
or
the Securitisation Fund is limited to and can be enforced against the Issuer
only to the extent to which it can be satisfied out of the assets and property
of the Securitisation Fund which are available to satisfy the right of the
Issuer to be exonerated or indemnified for the liability. This limitation of
the
Issuer’s liability applies despite any other provision of this agreement and
extends to all liabilities and obligations of the Issuer in any way connected
with any representation, warranty, conduct, omission, agreement or transaction
related to this agreement or the Securitisation Fund.
(c) Subject
to clause 11.1(d),
no
person (including any Relevant Party) may take action against the Issuer in
any
capacity other than as trustee of the Securitisation Fund or seek the
appointment of a receiver (except under the Security Trust Deed), or a
liquidator, an administrator or any similar person to the Issuer or prove in
any
liquidation, administration or arrangement of or affecting the Issuer except
in
relation to the assets of the Securitisation Fund.
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(d) The
provisions of this clause 11.1
shall
not apply to any obligation or liability of the Issuer to the extent that it
is
not satisfied because under a Transaction Document or by operation of law there
is a reduction in the extent of the Issuer’s indemnification or exoneration out
of the assets of the Securitisation Fund, as a result of the Issuer’s fraud,
negligence or wilful default.
(e) It
is acknowledged that the Relevant Parties are responsible under this agreement
or the other Transaction Documents for performing a variety of obligations
relating to the Securitisation Fund. No act or omission of the Issuer (including
any related failure to satisfy its obligations under this agreement) will be
considered fraud, negligence or wilful default of the Issuer for the purposes
of
clause 11.1(d)
to the
extent to which the act or omission was caused or contributed to by any failure
by any Relevant Party or any other person who has been delegated or appointed
by
the Issuer in accordance with the Transaction Documents to fulfil its
obligations relating to the Securitisation Fund or by any other act or omission
of a Relevant Party or any other person.
(f) No
attorney, agent, receiver or receiver and manager appointed in accordance with
this agreement or any other Transaction Document has authority to act on behalf
of the Issuer in a way which exposes the Issuer to any personal liability and
no
act or omission of any such person will be considered fraud, negligence or
wilful default of the Issuer for the purposes of clause 11.1(d)
(g) In
this clause 11.1,
Relevant
Parties means
any
party to a Transaction Document other than the Issuer.
(h) The
Issuer is not obliged to do or refrain from doing anything under this agreement
(including incur any liability) unless the Issuer's liability is limited in
the
same manner as set out in clauses 11.1(b)
to
11.1(f).
11.2 Limitation
of Liability - Note Holder
(a) Clause
26 of the Master Trust Deed applies to the obligations and liabilities of the
Note Holder and OF Manager under this agreement.
(b) The
Note Holder enters into this agreement only in its capacity as trustee of the
Origination Fund and no other capacity. A liability of the Note Holder arising
under or in connection with this agreement is limited to and can be enforced
against the Note Holder only to the extent to which it can be satisfied out
of
property of the Origination Fund out of which the Note Holder is actually
indemnified for the liability. This limitation of the Note Holder’s liability
applies despite any other provision of this agreement and extends to all
liabilities and obligations of the Note Holder in any way connected with any
representation, warranty, conduct, omission, agreement or transaction related
to
this agreement.
(c) The
parties other than the Note Holder may not take action against the Note Holder
in any capacity other than as trustee of the Origination Fund or seek the
appointment of a receiver (except in relation to property of the Origination
Fund), a liquidator, an administrator or any similar person to the Note Holder
or prove in any liquidation, administration or arrangement of or affecting
the
Note Holder (except in relation to property of the Origination
Fund).
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(d) The
provisions of this clause 11.2
shall
not apply to any obligation or liability of the Note Holder to the extent that
it is not satisfied because under the Master Trust Deed establishing the
Origination Fund or by operation of law there is a reduction in the extent
of
the Note Holder’s indemnification out of the assets of the Origination Fund, as
a result of the Note Holder’s fraud, negligence or wilful default.
(e) It
is acknowledged that the OF Manager is responsible under the Master Trust Deed
establishing the Origination Fund for performing a variety of obligations
relating to the Origination Fund, including under this agreement. No act or
omission of the Note Holder (including any related failure to satisfy its
obligations or breach of representation or warranty under this agreement) will
be considered fraud, negligence or wilful default of the Note Holder for the
purposes of clause 11.2(d)
to the
extent to which the act or omission was caused or contributed to by any failure
by the OF Manager or any other person to fulfil its obligations relating to
the
Origination Fund or by any other act or omission of the OF Manager or any other
person.
(f) No
attorney, agent, receiver or receiver and manager appointed in accordance with
this agreement has authority to act on behalf of the Note Holder in a way which
exposes the Note Holder to any personal liability and no act or omission of
any
such person will be considered fraud, negligence or wilful default of the Note
Holder for the purposes of clause 11.2(d).
(g) The
Note Holder is not obliged to do or refrain from doing anything under this
agreement (including incur any liability) unless the Note Holder's liability
is
limited in the same manner as set out in clauses 11.2(b)
to
11.2(f).
11.3 Wilful
Default of the Issuer
and the Note Holder
For
the
purposes of this agreement the expression "wilful default":
(a) in
relation to the Issuer and the Note Holder, means a wilful default of this
agreement by the Issuer or the Note Holder, as the case may be,
(1) other
than a default which:
(A) arises
out of a breach of a Transaction Document by a person other than the Issuer
or
the Note Holder or any person referred to in clause 11.3(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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(D) is
in accordance with an instruction or direction given to it by any person in
circumstances where that person is authorised to do so by any Transaction
Document; and
(2) in
circumstances where had it not committed that default it would have been
entitled to recoupment, reimbursement or a right of indemnity for its costs
and
expenses (if any) in complying with this agreement from the Fund.
(b) A
reference to the "fraud", "negligence" or "wilful default" of the Issuer or
the
Note Holder means the fraud, negligence or wilful default of the Issuer or
the
Note Holder, as the case may be, and of the officers or employees but not the
agents or delegates of the Issuer or the Note Holder, unless the Issuer or
the
Note Holder is liable for the acts or omissions of such other person under
the
terms of this agreement.
12
Indemnities
12.1 General
indemnity
(a) Subject
to Clause 11.1
the
Issuer, to the extent it is permitted or contemplated under the terms of the
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 of the Note Holder or OF Manager pays, suffers,
incurs or is liable for, in respect of any of the following:
(1) a
Funding Portion required by a Funding Notice, not being made for any reason
but
excluding any default by the Note Holder or OF Manager, as the case may
be;
(2) the
occurrence of any Event of Default;
(3) the
Note Holder or OF Manager, as the case may be, exercising its Powers consequent
upon or arising out of the occurrence of any Event of Default.
(b) Without
limitation to the indemnity contained in clause 12.1(a),
that
indemnity includes the amount determined by the Note Holder or OF Manager,
as the case may be, as being incurred by reason of the liquidation or
re-employment of deposits or other funds acquired or contracted for by the
Note
Holder or OF Manager, as the case may be to fund or maintain the Principal
Outstanding or the relevant Funding Portion and includes, but is not limited
to,
loss of margin.
12.2 Continuing
indemnities and evidence of loss
(a) Each
indemnity of the Issuer contained in this agreement is a continuing obligation
of the Issuer, despite:
(1) any
settlement of account; or
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(2) the
occurrence of any other thing,
and
remains in full force and effect until:
(3) all
moneys owing, contingently or otherwise, under any of the Material Documents
have been paid in full;
(4) the
Outstanding Moneys are fully and finally repaid.
(b) Each
indemnity of the Issuer contained in this agreement is an additional, separate
and independent obligation of the Issuer and no one indemnity limits the
generality of any other indemnity.
(c) Each
indemnity of the Issuer contained in this agreement survives the termination
of
any Transaction Document.
(d) A
certificate under the hand of an Officer of the OF Manager detailing the amount
of any damage, loss, liability, cost, charge, expense, outgoing or payment
covered by any indemnity in this agreement is sufficient evidence unless the
contrary is proved.
12.3 Funds
available for indemnity
The
obligations of the Issuer under this clause 12
shall be
payable solely to the extent that funds are available from time to time for
that
purpose under clause 6 of the Supplementary Bond Terms.
12.4 Negligence,
wilful default or breach of law
The
indemnities in this clause 12
do not
extend to any liability, loss, cost, charge or expense that is finally and
judicially determined to result from any negligence, wilful default or breach
of
law by the other parties to this agreement.
12.5 Notification
from Note Holder or OF Manager
If
the
Note Holder or the OF Manager receives written notice of any act, matter or
thing which may give rise to a liability, loss, cost, charge or expense in
relation to which the Issuer would be required to indemnify it under this clause
12,
the
Note Holder or the OF Manager (as the case may be) will notify the Issuer of
that act, matter or thing giving such details as it is practicable to give
as
soon as it is reasonably practicable and in any event within 5 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 12
unless
the Issuer has been prejudiced in any material respect by such
failure.
13 Tax,
costs and expenses
13.1 Tax
(a) The
Issuer must and the SF Manager must cause the Issuer to pay any Tax, other
than
an Excluded Tax in respect of the Securitisation Fund or a Tax referred to
in
clause 13.3,
in
respect of the execution, delivery, performance, release, discharge, amendment,
enforcement or attempted enforcement or otherwise in respect of any of the
following:
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29
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Funding Facility Agreement - SMHL Global Fund 2007-1
(1) any
Material Document;
(2) any
agreement or document entered into or signed under any Material Document;
and
(3) any
transaction contemplated under any Material Document or any agreement or
document described in clause 13.1(a)(2).
(b) The
Issuer must and the SF Manager must cause the Issuer to pay any fine, penalty
or
other cost in respect of a failure to pay any Tax described in clause
13.1(a)
except
to the extent that the fine, penalty or other cost is caused by the Note
Holder's failure to lodge money received from the Issuer before the due date
for
lodgement.
(c) The
Issuer indemnifies out of the property of the Securitisation Fund the Note
Holder against any amount payable under clause 13.1(a)
or
13.1(b)
or
both.
13.2 Costs
and expenses
The
Issuer must and the SF Manager must cause the Issuer to pay all costs and
expenses of the Note Holder and the OF Manager and any employee, Officer, agent
or contractor of the Note Holder and the OF Manager in relation to:
(a) the
negotiation, preparation, execution, delivery, stamping, registration,
completion, variation and discharge of any Material Document or any agreement
or
document described in clause 13.1(a);
(b) the
enforcement, protection or waiver, or attempted enforcement or protection,
of
any rights under any Material Document or any agreement or document described
in
clause 13.1(a);
(c) the
consent or approval of the Note Holder or OF Manager given under any Material
Document or any agreement or document described in clause 13.1(a);
and
(d) any
enquiry by any Governmental Agency involving a Transaction Party,
including,
but not limited to, any administration costs of the Note Holder or the OF
Manager, as the case may be, in connection with the matters referred to in
clause 13.2(b)
and
13.2(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.
13.3 Goods
and services tax
(a) Subject
to clause 13.3(b),
all
amounts referred to in this agreement which are relevant in determining a
payment to be made by one party to another are exclusive of GST unless
specifically indicated otherwise.
(b) If
a party to this agreement is entitled to be indemnified or reimbursed for any
cost or expense incurred by that party, then the indemnity or reimbursement
will
be calculated by reference to the GST-exclusive amount of that cost or expense,
increased by an amount equal to that part of the cost or expense for which
the
party or its representative member is not entitled to an input tax credit but
would be entitled if that entity was entitled to a full input tax credit. For
the avoidance of doubt, the amount calculated under this clause 13.3(b)
is a
GST-exclusive amount.
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Funding Facility Agreement - SMHL Global Fund 2007-1
(c) If
GST is levied or imposed on or in respect of any supply made under or in
connection with this agreement for which the consideration is a monetary
payment, then the consideration provided for that supply is increased by an
amount equal to the consideration multiplied by the rate at which that GST
is
levied or imposed. This additional amount is payable to the party with the
liability to remit GST in the manner and at the time when the consideration
to
which it relates is payable.
(d) The
recipient of any consideration for a taxable supply (whether in money or
otherwise) must provide to the other party a GST tax invoice (or any other
thing
required under any legislation concerned with GST) in the form required by
the A
New Tax System (Goods and Services Tax) Xxx 0000 or that other
legislation.
(e) Where
an "adjustment event", as defined in the A New Tax System (Goods and Services
Tax) Xxx 0000 occurs under this Agreement, the parties shall do all things
necessary to ensure that the adjustment event may be appropriately recognised,
including the issue of an "adjustment note", as that term is defined in that
Act.
14
Interest on overdue amounts
14.1 Payment
of interest
The
Issuer must and the SF Manager must cause the Issuer to pay interest
on:
(a) any
of the Outstanding Moneys due and payable, but unpaid; and
(b) on
any interest payable but unpaid in accordance with clause 5.
14.2 Accrual
of interest
The
interest payable under this clause 14:
(a) accrues
from day to day from and including the due date for payment up to the actual
date of payment, before and, as an additional and independent obligation, after
any judgment or other thing into which the liability to pay the Outstanding
Moneys becomes merged; and
(b) may
be capitalised by the Note Holder on any relevant Payment Date.
14.3 Rate
of interest
The
rate
of interest payable under this clause 14
on any
part of the Outstanding Moneys is the higher of:
(a) the
Overdue Rate; and
(b) the
rate fixed or payable under a judgment or other thing referred to in clause
14.2(a).
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Funding Facility Agreement - SMHL Global Fund 2007-1
15 Assignment
15.1 Assignment
by Transaction Party
A
Transaction Party must not transfer or assign any of its rights or obligations
under any Material Document without the prior written consent of the OF Manager,
the Note Holder and each Designated Rating Agency.
15.2 Assignment
by Note Holder and OF Manager
Neither
the Note Holder nor the OF Manager may assign any of its rights or transfer
by
novation any of its rights and obligations under this agreement or any Note
without the prior written consent of the other parties. Any such assignment
must
contain an acknowledgement that the assignee is bound by the provisions of this
agreement.
15.3 Assist
transfer or assignment
At
the
request of the Note Holder or OF Manager, the Issuer and the SF Manager must
do
any thing including, but not limited to, executing any documents or amending
any
Material Document, to effect any transfer or assignment under this clause
15.
15.4 Participation
permitted
The
Note
Holder and OF Manager may grant by way of sub-participation (being a right
to
share in the financial effects of this agreement, without any rights against
the
Issuer) all or part of the Note Holder's or OF Manager’s, as the case may be,
rights and benefits under this agreement to any other person without having
to
obtain the consent of or to notify the Issuer or the SF Manager.
15.5 Lending
Office
(a) The
Note Holder may change its Lending Office at any time.
(b) The
Note Holder must promptly notify the Issuer and the SF Manager of any such
change.
15.6 Disclosure
Any
party
may disclose to a proposed assignee, transferee or sub-participant any
information relating to any other party or the Transaction Documents whether
or
not confidential and whether or not the disclosure would be in breach of any
law
or of any duty owed to that other party.
15.7 No
increase in costs
If
the
Note Holder or OF Manager assigns or transfers any of its rights or obligations
under any Material Document or changes its Lending Office the Issuer
is not
required to pay any net increase in the aggregate amount of costs, Taxes, fees
or charges which:
(a) are
a direct
consequence of the transfer or assignment or change of Lending Office;
and
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Funding Facility Agreement - SMHL Global Fund 2007-1
(b) the
Note Holder or OF Manager as the case may be, or its transferee or assignee
was
aware of or ought reasonably to have been aware of, at the time of the transfer
or assignment or change of Lending Office.
16 General
16.1 Confidential
information
The
Note
Holder and OF Manager may, for the purpose of exercising any Power, disclose
to
any person any documents or records of, or information about, any Transaction
Document, or the assets, business or affairs of any Transaction Party, whether
or not confidential and whether or not the disclosure would be in breach of
any
law or of any duty owed to any Transaction Party.
16.2 Performance
by Note Holder of obligations
If
a
Transaction Party defaults in fully and punctually performing any obligation
contained or implied in any Transaction Document, the Note Holder and
OF Manager may, without prejudice to any Power do all things necessary or
desirable, in the opinion of the Note Holder or OF Manager, as the case may
be,
to make good or attempt to make good that default to the satisfaction of the
Note Holder or OF Manager, as the case may be.
16.3 Transaction
Party to bear cost
Without
prejudice to clause 11,
any
thing which must be done by a Transaction Party under any Material Document,
whether or not at the request of the Note Holder or OF Manager, must be done
at
the cost of the Transaction Party.
16.4 Notices
(a) Any
notice or other communication including, but not limited to, any request,
demand, consent or approval, to or by a party to any Material
Document:
(1) must
be in legible writing and in English addressed as shown below (or if sent by
facsimile, to the facsimile numbers below) and marked to the attention of the
following:
|
(A)
|
if
to the Note Holder:
|
|
Address:
|
Xxxxx
00
|
000
Xxxx
Xxxxxx
Xxxxxx,
XXX 0000
|
Attention:
|
Head
of Debt Markets/Manager - Securitisation
|
|
Facsimile:
|
(00)
0000 0000; and
|
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Funding Facility Agreement - SMHL Global Fund 2007-1
|
(B)
|
if
to the Issuer:
|
|
Address:
|
Xxxxx
00
|
000
Xxxx
Xxxxxx
Xxxxxx,
XXX 0000
|
Attention:
|
Head
of Debt Markets/Manager - Securitisation
|
|
Facsimile:
|
(00)
0000 0000; and
|
|
(C)
|
if
to the SF Manager:
|
|
Address:
|
Xxxxx
00,
|
000
Xxxxxxx Xxxxxx,
Xxxxxxxxx,
Xxxxxxxx 0000
|
Attention:
|
Manager
- Capital Markets
|
|
Facsimile:
|
(00)
0000 0000; and
|
|
(D)
|
if
to the OF Manager:
|
|
Address:
|
Xxxxx
00,
|
000
Xxxxxxx Xxxxxx,
Xxxxxxxxx,
Xxxxxxxx 0000
|
Attention:
|
Manager
- Capital Markets
|
|
Facsimile:
|
(00)
0000 0000;
|
or
as
specified to the sender by any party by notice;
(2) where
the sender is a company, must be signed by an Officer or under the common seal
of the sender;
(3) is
regarded as being given by the sender and received by the
addressee:
(A) if
by delivery in person, when delivered to the addressee;
(B) if
by post, on delivery to the addressee; or
(C) if
by facsimile transmission, as long as it is legibly received, when transmitted
to the addressee,
but
if
the delivery or receipt is on a day which is not a 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 16.4(a)(3)
and
informs the sender that it is not legible.
(c) In
this clause 16.4,
a
reference to an addressee includes a reference to an addressee's Officers,
agents or employees.
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Funding Facility Agreement - SMHL Global Fund 2007-1
16.5 Governing
law and jurisdiction
(a) This
agreement is governed by the laws of New South Wales.
(b) The
parties irrevocably submit to the non-exclusive jurisdiction of the courts
of
New South Wales.
16.6 Prohibition
and enforceability
(a) Any
provision of, or the application of any provision of, any Material Document
or
any Power which is prohibited in any jurisdiction is, in that jurisdiction,
ineffective only to the extent of that prohibition.
(b) Any
provision of, or the application of any provision of, any Material Document
which is void, illegal or unenforceable in any jurisdiction does not affect
the
validity, legality or enforceability of that provision in any other jurisdiction
or of the remaining provisions in that or any other jurisdiction.
16.7 Waivers
(a) Waiver
of any right arising from a breach of this agreement or of any Power arising
upon default under this agreement or upon the occurrence of an Event of Default
must be in writing and signed by the party granting the waiver.
(b) A
failure or delay in exercise, or partial exercise, of:
(1) a
right arising from a breach of this agreement or the occurrence of an Event
of
Default; or
(2) a
Power created or arising upon default under this agreement or upon the
occurrence of an Event of Default,
does
not
result in a waiver of that right or Power.
(c) A
party is not entitled to rely on a delay in the exercise or non-exercise of
a
right or Power arising from a breach of this agreement or on a default under
this agreement or on the occurrence of an Event of Default as constituting
a
waiver of that right or Power.
(d) A
party may not rely on any conduct of another party as a defence to exercise
of a
right or Power by that other party.
(e) This
clause may not itself be waived except by writing.
16.8 Variation
A
variation of any term of this agreement must be in writing and signed by the
parties.
16.9 Cumulative
rights
The
Powers are cumulative and do not exclude any other right, power, authority,
discretion or remedy of the Note Holder or OF Manager.
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Funding Facility Agreement - SMHL Global Fund 2007-1
16.10 Attorneys
Each
of
the Attorneys executing this agreement states that the Attorney has no notice
of
the revocation of the power of attorney appointing that Attorney.
16.11 Binding
Obligations
Each
party to this agreement acknowledges that the obligations expressed in this
agreement are binding upon it.
16.12 Winding
up of Securitisation Fund
Prior
to
the Termination Date, neither the Note Holder nor the OF Manager may seek to
terminate or wind up the Securitisation Fund as a consequence of any breach
of
this agreement or any Note by the Issuer or the SF Manager.
16.13 Termination
clause
This
agreement can only be terminated on or after the Termination Date.
16.14 Counterparts
(a) This
agreement may be executed in any number of counterparts.
(b) All
counterparts, taken together, constitute 1 instrument.
(c) A
party may execute this agreement by signing any counterpart.
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Funding Facility Agreement - SMHL Global Fund 2007-1
Schedule
1 - Funding Notice
(clause 4.2)
|
To:
|
Perpetual
Limited
|
in
its
capacity as trustee of the Origination Fund
(Note
Holder)
|
Attention:
|
Head
of Debt Markets/Manager - Securitisation
|
|
And:
|
ME
Portfolio Management
Limited
|
in
its
capacity as manager of the Origination Fund
(OF
Manager)
|
Attention:
|
Manager
- Capital Markets
|
We
refer
to the Redraw Funding Facility Agreement dated [insert
date]
(Agreement).
Pursuant to clause 4 of the Agreement:
(a) We
give
you notice that we require the Issuer to issue to the Note Holder a Note from
SMHL Global Fund 2007-1 on [insert
date] (Funding
Date)
at
[insert
details];
(b) The
aggregate principal amount of the Note is: $[insert
amount];
(c) The
relevant Payment Period is a [Quarterly/Monthly]
Payment
Period commencing on the Funding Date;
(d) We
request that the proceeds be remitted to account number [insert
details]
at
[insert
address]/
[insert
alternative instructions].
Expressions
defined in the Agreement have the same meaning when used in this Funding Notice.
|
Dated:
|
[insert
date]
|
Signed
for
and
on behalf of
ME
Portfolio
Management Limited
__________________________________
Officer's
signature
__________________________________
Name
(please print)
page
37
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Funding Facility Agreement - SMHL Global Fund 2007-1
Schedule
2 - Conditions
Redraw
Funding Facility Agreement - SMHL Global Fund 2007-1
PERPETUAL
LIMITED
(ABN
86
000 000 000)
in
its capacity as trustee of the SMHL Global Fund 2007-1
of
Xxxxx
00, 000 Xxxx Xxxxxx, Xxxxxx, XXX, 0000
("Issuer")
whose
office for the purposes of payment is at Xxxxx 00, 000 Xxxx Xxxxxx, Xxxxxx,
Xxx
Xxxxx Xxxxx or such other address as the Issuer may notify to the Note Holder
from time to time.
|
1
|
Note
|
|
(a)
|
This
Note certificate is issued as part of the Notes of SMHL Global Fund
2007-1. The terms and conditions of the issue of this Note and repayment
are constituted by this Note and the Redraw Funding Facility Agreement
for
the Issue and Repayment of Notes - SMHL Global Fund 2007-1 dated
[insert
date]
2007 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 SMHL Global Fund 0000-0 (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 Note Holder in accordance
with the Agreement.
|
|
(c)
|
This
Note may only be assigned or transferred with the prior written consent
of
the Issuer and subject to and in accordance with the
Agreement.
|
|
2
|
Derivation
of payment
|
The
parties acknowledge that the payments to be made by the Issuer under this Note
are derived by it from the receipts from a "mortgage" or "pool of mortgages",
as
those terms are defined in section 3 of the Duties Xxx 0000 (Vic).
|
3
|
Extent
of liability of Issuer
|
|
(a)
|
Clause
26 of the Master Trust Deed applies to the obligations and liabilities
of
the Issuer and SF Manager under this
Note.
|
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Funding Facility Agreement - SMHL Global Fund 2007-1
|
(b)
|
The
Issuer issues this Note in its capacity as trustee of the Securitisation
Fund and in no other capacity (except where the Transaction Documents
provide otherwise). Subject to clause 3(d),
a
liability of the Issuer arising under or in connection with this
Note or
the Agreement or the Securitisation Fund is limited to and can be
enforced
against the Issuer only to the extent to which it can be satisfied
out of
the assets and property of the Securitisation Fund which are available
to
satisfy the right of the Trustee to be exonerated or indemnified
for the
liability. This limitation of the Issuer’s liability applies despite any
other provision of this Note or the Agreement and extends to all
liabilities and obligations of the Issuer in any way connected with
any
representation, warranty, conduct, omission, agreement or transaction
related to this Note or the Agreement or the Securitisation
Fund.
|
|
(c)
|
Subject
to clause 3(d),
no person (including any Relevant Party) may take action against
the
Issuer in any capacity other than as trustee of the Securitisation
Fund or
seek the appointment of a receiver (except under the Security Trust
Deed),
or a liquidator, an administrator or any similar person to the Issuer
or
prove in any liquidation, administration or arrangement of or affecting
the Issuer except in relation to the assets of the Securitisation
Fund.
|
|
(d)
|
The
provisions of this clause 3 shall not apply to any obligation or
liability
of the Issuer to the extent that it is not satisfied because under
a
Transaction Document or by operation of law there is a reduction
in the
extent of the Issuer’s indemnification or exoneration out of the assets of
the Securitisation Fund, as a result of the Issuer’s fraud, negligence or
wilful default.
|
|
(e)
|
It
is acknowledged that the Relevant Parties are responsible under this
Note,
the Agreement or the Transaction Documents 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 under this Note or the Agreement)
will
be considered fraud, negligence or wilful default of the Issuer for
the
purposes of clause 3(d)
to
the extent to which the act or omission was caused or contributed
to by
any failure by any Relevant Party or any other person who has been
delegated or appointed by the Issuer in accordance with the Transaction
Documents to fulfil its obligations relating to the Securitisation
Fund or
by any other act or omission of a Relevant Party or any other
person.
|
|
(f)
|
No
attorney, agent, receiver or receiver and manager appointed in accordance
with this Note or the Agreement or any other Transaction Document
has
authority to act on behalf of the Issuer in a way which exposes the
Issuer
to any personal liability and no act or omission of any such person
will
be considered fraud, negligence or wilful default of the Issuer for
the
purposes of clause 3(d).
|
|
(g)
|
In
this clause 3,
Relevant Parties means any party to a Transaction Document other
than the
Issuer.
|
|
(h)
|
The
Issuer is not obliged to do or refrain from doing anything under
this Note
or the Agreement (including incur any liability) unless the Issuer's
liability is limited in the same manner as set out in clauses 3(a)
to
3(f).
|
|
4
|
Extent
of liability of Note Holder
|
|
(a)
|
Clause
26 of the Master Trust Deed applies to the obligations and liabilities
of
the Note Holder and OF Manager under this
Note.
|
|
(b)
|
The
Note Holder issues this Note only in its capacity as trustee of the
Origination Fund and no other capacity. A liability arising under
or in
connection with this Note or the Agreement is limited to and can
be
enforced against the Note Holder only to the extent to which it can
be
satisfied out of property of the Origination Fund out of which the
Note
Holder is actually indemnified for the liability. This limitation
of the
Note Holder’s 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.
|
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Funding Facility Agreement - SMHL Global Fund 2007-1
|
(c)
|
The
parties other than the Note Holder may not take action against the
Note
Holder in any capacity other than as trustee of the Origination Fund
or
seek the appointment of a receiver (except in relation to property
of the
Origination Fund), a liquidator, an administrator or any similar
person to
the Note Holder or prove in any liquidation, administration or arrangement
of or affecting the Note Holder (except in relation to property of
the
Origination Fund).
|
|
(d)
|
The
provisions of this clause 4 shall not apply to any obligation or
liability
of the Note Holder to the extent that it is not satisfied because
under
the trust deed establishing the Origination Fund or by operation
of law
there is a reduction in the extent of the Note Holder’s indemnification
out of the assets of the Origination Fund, as a result of the Note
Holder’s fraud, negligence or wilful
default.
|
|
(e)
|
It
is acknowledged that the OF Manager is responsible under the trust
deed
establishing the Origination Fund for performing a variety of obligations
relating to the Origination Fund, including under this Note and the
Agreement. No act or omission of the Note Holder (including any related
failure to satisfy its obligations or breach of representation or
warranty
under this Note or the Agreement) will be considered fraud, negligence
or
wilful default of the Note Holder for the purposes of clause 4(d)
to
the extent to which the act or omission was caused or contributed
to by
any failure by the OF Manager or any other person to fulfil its
obligations relating to the Origination Fund or by any other act
or
omission of the OF Manager or any other
person.
|
|
(f)
|
No
attorney, agent, receiver or receiver and manager appointed in accordance
with this Note or the Agreement has authority to act on behalf of
the Note
Holder in a way which exposes the Note Holder to any personal liability
and no act or omission of any such person will be considered fraud,
negligence or wilful default of the Note Holder for the purposes
of clause
4(d).
|
|
(g)
|
The
Note Holder is not obliged to do or refrain from doing anything under
this
Note or the Agreement (including incur any liability) unless the
Note
Holder's liability is limited in the same manner as set out in clauses
4(a)
to
4(f).
|
|
5
|
Wilful
Default of the Issuer and the Note
Holder
|
For
the
purposes of this Note the expression "wilful default":
|
(a)
|
in
relation to the Issuer and the Note Holder, means a wilful default
of this
Note and the Agreement by the Issuer or the Note Holder, as the case
may
be,
|
(1) other
than a default which:
(A) arises
out of a breach of a Transaction Document by a person other than the Issuer
or
the Note Holder or any person referred to in clause 5(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;
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40
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Funding Facility Agreement - SMHL Global Fund 2007-1
(C) is
in accordance with a lawful court order or direction or is required by law;
or
(D) is
in accordance with an instruction or direction given to it by any person in
circumstances where that person is authorised to do so by any Transaction
Document; and
(2) in
circumstances where had it not committed that default it would have been
entitled to recoupment, reimbursement or a right of indemnity for its costs
and
expenses (if any) in complying with this Note and the Agreement from the
Fund.
(b) A
reference to the "fraud", "negligence" or "wilful default" of the Issuer or
the
Note Holder means the fraud, negligence or wilful default of the Issuer or
the
Note Holder, as the case may be, and of the officers or employees but not the
agents or delegates of the Issuer or the Note Holder, unless the Issuer or
the
Note Holder is liable for the acts or omissions of such other person under
the
terms of this Note and the Agreement.
page
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Funding Facility Agreement - SMHL Global Fund 2007-1
Schedule
3 - Facility Provider Funding Notice
(clause 4.4)
|
To:
|
Perpetual
Limited
|
in
its
capacity as trustee of the Securitisation Fund
(Issuer)
|
Attention:
|
Head
of Debt Markets/Manager - Securitisation
|
|
And:
|
ME
Portfolio Management
Limited
|
in
its
capacity as manager of the Securitisation Fund
(SF
Manager)
|
Attention:
|
Manager
- Capital Markets
|
We
refer
to the Redraw Funding Facility Agreement dated [insert
date]
(Agreement).
Pursuant to clause 4 of the Terms and Conditions:
|
(a)
|
we
give you notice that we require the Issuer to issue to the Note Holder
a
Note from SMHL Global Fund 2007-1 on [insert
date]
(Funding
Date)
at [insert
details];
|
|
(b)
|
the
aggregate principal amount of the Note is $[insert
amount];
|
|
(c)
|
the
relevant Payment Period is a [Quarterly/Monthly]
Payment Period commencing on the Funding
Date.
|
Expressions
defined in the Agreement have the same meaning when used in this Funding
Notice.
|
Dated:
|
[insert
date]
|
Signed
for
and
on behalf of
ME
Portfolio Management Limited
_______________________
Officer’s
signature
_______________________
Name
(please print)
page
42
Redraw
Funding Facility Agreement - SMHL Global Fund 2007-1
Schedule
4 - Report on assessment of compliance with Regulation AB servicing
criteria
ME
Portfolio Management Limited
Xxxxx
00
000
Xxxxxxx Xxxxxx
Xxxxxxxxx
XXX 0000
[________________]
(the "Asserting
Party")
is
responsible for assessing compliance as of June 30,
[ ]
and for the period from
[ ]
(date of issuance of SMHL Global Fund 2007-1) through June 30,
[ ] (the "Reporting
Period")
with
the servicing criteria set forth in Section 229.1122(d) of the Code of Federal
Regulations (the "CFR"),
except for criteria 229.1122(d)[insert
section numbers in Regulation AB that are not applicable to Asserting
Party]
of the
CFR, which have not been determined pursuant to the transaction documents for
the SMHL Global Fund 2007-1 to be, and the Asserting Party has concluded are
not, servicing criteria that the Asserting Party performs, or in which the
Asserting Party participates, in relation to SMHL Global Fund 2007-1 (the
"Applicable
Servicing Criteria").
This
assessment of compliance is provided in relation to SMHL Global Fund
2007-1.
The
Asserting Party has assessed its compliance with the Applicable Servicing
Criteria for the Reporting Period and has concluded that the Asserting Party
has
complied, in all material respects, with the Applicable Servicing Criteria
in
relation to SMHL Global Fund 2007-1.
[____________],
an independent registered public accounting firm, has issued an attestation
report on the assessment of compliance with the Applicable Servicing Criteria
for the Reporting Period as set forth in this assertion.
[NAME
OF
ASSERTING PARTY]
Date:
________________________
By:
Name:
_________________________
Title:
_________________________
page
43
Redraw
Funding Facility Agreement - SMHL Global Fund 2007-1
Schedule
5 - Servicing Criteria to be addressed in assessment of
compliance
|
SERVICING
CRITERIA
|
APPLICABLE
SERVICING
CRITERIA
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, "federally insured depository institution" with respect
to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
|
page
44
Redraw
Funding Facility Agreement - SMHL Global Fund 2007-1
|
SERVICING
CRITERIA
|
APPLICABLE
SERVICING
CRITERIA
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
|
|
Investor
Remittances and Reporting
|
||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
|
page
45
Redraw
Funding Facility Agreement - SMHL Global Fund 2007-1
|
SERVICING
CRITERIA
|
APPLICABLE
SERVICING
CRITERIA
|
|
|
Reference
|
Criteria
|
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements.
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
|
page
46
Redraw
Funding Facility Agreement - SMHL Global Fund 2007-1
|
SERVICING
CRITERIA
|
APPLICABLE
SERVICING
CRITERIA
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
|
page
47
Redraw
Funding Facility Agreement - SMHL Global Fund 2007-1
Executed
as an agreement:
ISSUER:
Signed
for
Perpetual
Limited
by
its
attorney in
the
presence of:
|
/s/
Xxxxxxx Low
|
/s/
Xxxxx Xxxxxx
|
|
|
Witness
|
Attorney
|
|
|
Xxxxxxx
Low
|
Xxxxx
Xxxxxx
|
|
|
Name
(please print)
|
Name
(please print)
|
NOTE
HOLDER:
Signed
for
Perpetual
Limited
by
its
attorney in
the
presence of:
|
/s/
Xxxxxxx Low
|
/s/
Xxxxx Xxxxxx
|
|
|
Witness
|
Attorney
|
|
|
Xxxxxxx
Low
|
Xxxxx
Xxxxxx
|
|
|
Name
(please print)
|
Name
(please print)
|
page
48
Redraw
Funding Facility Agreement - SMHL Global Fund
2007-1
SF
MANAGER:
Signed
for
ME
Portfolio Management Limited
by
its
attorney in
the
presence of:
|
/s/
Xxxxxxx Xxxxx
|
/s/
Xxxxxxx X. Xxxxxx
|
|
|
Witness
|
Attorney
|
|
|
Xxxxxxx
Xxxxx
|
Xxxxxxx
X. Xxxxxx
|
|
|
Name
(please print)
|
Name
(please print)
|
OF
MANAGER:
Signed
for
ME
Portfolio Management Limited
by
its
attorney in
the
presence of:
|
/s/
Xxxxxxx Xxxxx
|
/s/
Xxxxxxx X. Xxxxxx
|
|
|
Witness
|
Attorney
|
|
|
Xxxxxxx
Xxxxx
|
Xxxxxxx
X. Xxxxxx
|
|
|
Name
(please print)
|
Name
(please print)
|
page
49
