Medallion Trust Series [ ]
Liquidity Facility Agreement
Commonwealth Bank of Australia
ABN 48 123 123 124
Perpetual Trustee Company Limited
ABN 42 000 001 007
Securitisation Advisory Services Pty. Limited
ABN 88 064 133 946
If you have any questions about the details of this document
PLEASE CONTACT [ ] ON + 61 2 9353 [ ]
Xxxxxxx Xxx
Lawyers
Levels 22-35 No. 0 X'Xxxxxxx Xxxxxx Xxxxxx XXX 0000 Xxxxxxxxx
XX Xxx X0 Xxxxxxxxx Xxxxxx Xxxxxx XXX 0000
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Our reference [ ]
TABLE OF CONTENTS
1...........DEFINITIONS AND INTERPRETATION........................................................................1
1.1 Definitions...............................................................................1
1.2 Series Supplement and Master Trust Deed Definitions.......................................4
1.3 Interpretation............................................................................4
1.4 Trustee Capacity..........................................................................6
1.5 Master Trust Deed and Series Supplement...................................................6
1.6 Incorporated Definitions and other Transaction Documents and provisions...................6
2...........THE FACILITY..........................................................................................6
2.1 Amount....................................................................................6
2.2 Method of Making Advances.................................................................7
2.3 Purpose...................................................................................7
2.4 Termination of the Facility...............................................................7
3...........CONDITIONS PRECEDENT..................................................................................7
3.1 Conditions Precedent to first Advance.....................................................7
3.2 Conditions Precedent to all Advances......................................................7
4...........DRAWDOWN..............................................................................................8
4.1 Preparation of Drawdown Notices...........................................................8
4.2 Service of Drawdown Notices...............................................................8
4.3 Requirements of Drawdown Notices..........................................................8
4.4 Availability of Drawing...................................................................8
4.5 Payment of Drawing........................................................................9
5...........INTEREST..............................................................................................9
5.1 Interest Period...........................................................................9
5.2 Calculation of Interest...................................................................9
5.3 Payment of Interest.......................................................................9
5.4 Interest on Unpaid Interest...............................................................9
5.5 Interest on Overdue Sums.................................................................10
6...........REPAYMENT OF DRAWINGS AND ADVANCES...................................................................10
6.1 Repayment of Drawings during the Availability Period.....................................10
6.2 Re-Drawing...............................................................................10
6.3 Repayment on Termination.................................................................10
6.4 Payments Under Security Trust Deed.......................................................10
7...........CASH ADVANCE DEPOSIT PERIOD..........................................................................10
7.1 Cash Advance Deposit Upon Ratings Downgrade..............................................10
7.2 Withdrawal from the Collections Account..................................................11
7.3 Drawings During the Cash Advance Deposit Period..........................................11
7.4 Liquidity Facility Provider Upgrade......................................................11
7.5 Reduction in Facility Limit During Cash Advance Deposit Period...........................12
7.6 Termination of Agreement.................................................................12
7.7 Interest on Cash Advance Deposit.........................................................12
8...........PAYMENTS.............................................................................................12
8.1 Time on Due Date and Free of Set-off & Taxes.............................................12
8.2 Certificate..............................................................................12
9...........ILLEGALITY AND INCREASED COST........................................................................12
9.1 Illegality...............................................................................12
9.2 Increased Cost...........................................................................13
10..........FEES.................................................................................................13
11..........REPRESENTATIONS AND WARRANTIES.......................................................................14
11.1 General Representations and Warranties...................................................14
11.2 Corporate Representations and Warranties.................................................14
11.3 Series Trust Representations and Warranties..............................................14
11.4 Liquidity Facility Provider..............................................................15
11.5 Representations and Warranties Repeated..................................................15
12..........UNDERTAKINGS.........................................................................................15
12.1 General..................................................................................15
12.2 Manager's Undertakings after Manager Event...............................................16
12.3 Liquidity Facility Provider Undertaking..................................................17
13..........EVENTS OF DEFAULT....................................................................................17
13.1 Events of Default........................................................................17
13.2 Consequences of Event of Default.........................................................17
14..........TERMINATION BY TRUSTEE...............................................................................17
14.1 Trustee may declare a Termination Date...................................................17
14.2 Requirements for termination.............................................................18
15..........TRUSTEE PROVISIONS...................................................................................18
15.1 Limitation on Trustee's Liability........................................................18
15.2 Claims against Trustee...................................................................18
15.3 Breach of Trust..........................................................................18
15.4 Acts or omissions........................................................................18
15.5 No obligation............................................................................19
16..........ASSIGNMENT...........................................................................................19
16.1 Assignment by Trustee....................................................................19
16.2 Assignment by Liquidity Facility Provider................................................19
17..........NOTICES..............................................................................................19
17.1 Method of Delivery.......................................................................19
17.2 Deemed Receipt...........................................................................20
17.3 Email....................................................................................20
18..........INDEMNITY............................................................................................20
18.1 Indemnity on Demand......................................................................20
18.2 Losses on Liquidation or Re-employment of Deposits.......................................20
18.3 Payment on Distribution Date.............................................................21
19..........MISCELLANEOUS........................................................................................21
19.1 Stamp Duties.............................................................................21
19.2 Waiver...................................................................................21
19.3 Written Waiver, Consent and Approval.....................................................21
19.4 Severability.............................................................................21
19.5 Survival of Indemnities..................................................................22
19.6 Successors and Assigns...................................................................22
19.7 Moratorium Legislation...................................................................22
19.8 Amendments...............................................................................22
19.9 Governing Law............................................................................22
19.10 Jurisdiction.............................................................................22
19.11 Counterparts.............................................................................22
19.12 Contra proferentem.......................................................................23
SCHEDULE........................................................................................................24
LIQUIDITY FACILITY AGREEMENT MADE AT SYDNEY ON [ ]
PARTIES COMMONWEALTH BANK OF AUSTRALIA ABN 48 123 123 124 of
Xxxxx 0, 00 Xxxxxx Xxxxx, Xxxxxx, XXX 0000 Xxxxxxxxx
("LIQUIDITY FACILITY PROVIDER")
PERPETUAL TRUSTEE COMPANY LIMITED ABN 42 000 001 007 of
Xxxxx 0, 0 Xxxxxxxxxxx Xxxxxx, Xxxxxx XXX 0000 Xxxxxxxxx
in its capacity as trustee of the Series Trust
("TRUSTEE")
SECURITISATION ADVISORY SERVICES PTY. LIMITED
ABN 88 064 133 946 of Xxxxx 0, 00 Xxxxxx Xxxxx,
Xxxxxx XXX 0000 Xxxxxxxxx ("SAS" and also hereinafter
included within the expression the "MANAGER")
BACKGROUND
A. The Trustee and the Manager are respectively the trustee and the
manager of the Series Trust.
B. The Manager has requested the Liquidity Facility Provider to provide
the Trustee with the Facility in connection with the Approved
Purpose.
C. The Liquidity Facility Provider has agreed to provide the Facility
to the Trustee on the terms and conditions contained in this
Agreement.
OPERATIVE PROVISIONS
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1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement, unless the contrary intention appears:
"ADVANCE" means the principal amount of each advance to the Trustee
by the Liquidity Facility Provider in accordance with this Agreement
or so much of each such advance as remains outstanding from time to
time.
"APPROVED PURPOSE" means the use of a Drawing to meet a Gross Income
Shortfall in accordance with the Series Supplement or to fund a Cash
Advance Deposit in accordance with this Agreement.
"AUTHORISED OFFICER" in relation to the Liquidity Facility Provider
means any person from time to time appointed by the Liquidity
Facility Provider to act as its Authorised Officer for the purposes
of this Agreement and notified to the Trustee.
"AVAILABILITY PERIOD" means the period commencing on the date of
this Agreement and ending on the Termination Date.
"BBSW" in relation to an Interest Period means the rate appearing at
approximately 10.00 am on the first day of that Interest Period on
the Reuters Screen page "BBSW" as being the average of the mean
buying and selling rates appearing on that page for a xxxx of
exchange having a tenor of three months. If on the first day of an
Interest Period fewer than four banks are quoted on the Reuters
Screen page "BBSW" or for any other reason "BBSW" for an Interest
Period cannot be determined in accordance with the foregoing
provisions, then "BBSW" for that Interest Period means such rate as
is specified by the Liquidity Facility Provider having regard to
comparable indices then available.
"CASH ADVANCE DEPOSIT" means at any time that amount of the
Collections Account of the Series Trust that comprises at that time
Advances by way of deposits by the Liquidity Facility
Provider to the Collections Account of the Series Trust in
accordance with clause 7.1 (after taking into account any
application of the Cash Advance Deposit in accordance with clause
7.3 or repayment of it in accordance with either of clauses 7.4 or
7.5).
"CASH ADVANCE DEPOSIT PERIOD" means each period commencing
immediately following a Cash Advance Deposit and ending on the date
on which the Trustee is obliged to repay to the Liquidity Facility
Provider the Cash Advance Deposit pursuant to clause 7.4.
"DESIGNATED CREDIT RATING" means a short term credit rating of A-1+
by S&P and P-1 by Xxxxx'x or such other credit rating agreed to
between the Trustee, the Manager and the relevant Rating Agency.
"DIRECT ADVANCE" means an Advance by way of a deposit by the
Liquidity Facility Provider to the Collections Account of the Series
Trust in accordance with clause 4.5(a).
"DRAWDOWN DATE" means, in relation to a Drawing or proposed Drawing,
the Distribution Date immediately following the delivery of the
corresponding Drawdown Notice to the Liquidity Facility Provider in
accordance with this Agreement.
"DRAWDOWN NOTICE" means a notice given under clause 4.
"DRAWING" means:
(a) other than during the Cash Advance Deposit Period, a
Direct Advance or a proposed Direct Advance (as the case
may be); and
(b) during the Cash Advance Deposit Period, a withdrawal or
proposed withdrawal (as the case may be) from the Cash
Advance Deposit in the Collections Account of the Series
Trust by the Trustee in accordance with clause 7.3.
"EFFECTIVE CONTROL" means:
(a) control of the composition of the board of directors of
SAS;
(b) control of more than half of the voting power of SAS; or
(c) control of more than half of the issued share capital of
SAS excluding any part of such issued share capital
which carries no right to participate beyond a specified
amount in the distribution of either profit or capital.
"EVENT OF DEFAULT" means any of the events set out or referred to in
clause 13.1 as an Event of Default.
"FACILITY" means the standby liquidity facility granted to the
Trustee by the Liquidity Facility Provider on the terms and
conditions of this Agreement.
"FACILITY LIMIT" means at any given time the least of the following:
(a) A$35 million;
(b) the Performing Mortgage Loans Amount at that time; and
(c) the amount from time to time agreed in writing between
the Manager, the Liquidity Facility Provider and the
Rating Agencies.
"INTEREST PERIOD" means each period determined in accordance with
clause 5.1.
"LIQUIDITY AMOUNT" means, for a Drawdown Date, the lesser of:
(a) the then un-utilised portion of the Facility Limit or if
the Drawdown Date is during the Cash Advance Deposit
Period, the then un-utilised portion of the Cash Advance
Deposit; and
(b) the Gross Income Shortfall on the preceding
Determination Date.
"MANAGER" means SAS or if SAS retires or is removed as manager of
the Series Trusts (as defined in the Master Trust Deed), any then
Substitute Manager, and includes the Trustee when acting as the
manager of the Series Trust in accordance with the provisions of the
Master Trust Deed.
"MANAGER EVENT" means:
(a) SAS ceases to be a body over which the Liquidity Facility
Provider has Effective Control; or
(b) SAS ceases to be the manager of the Series Trust.
"MASTER TRUST DEED" means the Master Trust Deed dated 8 October 1997
between the Trustee and SAS, as amended from time to time.
"OBLIGATIONS" means all of the liabilities of the Trustee to the
Liquidity Facility Provider under this Agreement and, without
limiting the generality of the foregoing, includes any liabilities
which:
(a) are liquidated;
(b) are present, prospective or contingent;
(c) relate to the payment of money or the performance or
omission of any act;
(d) sound in damages only; or
(e) accrue as a result of any Event of Default.
"PERFORMING MORTGAGE LOANS AMOUNT" means at any time the aggregate
of the following:
(a) the amount outstanding under Mortgage Loans forming part
of the Assets of the Series Trust in relation to which
no payment due from the relevant Borrower has been in
arrears by more than 90 days; and
(b) the amount outstanding under Mortgage Loans forming part
of the Assets of the Series Trust in relation to which a
payment due from the relevant Borrower has been in
arrears by more than 90 days and which are insured under
a Mortgage Insurance Policy.
"PRESCRIBED RATE" in relation to an Interest Period means the sum
of:
(a) BBSW for that Interest Period; and
(b) 0.20% per annum,
or such rate as is otherwise agreed by the Trustee, the Manager and
the Liquidity Facility Provider provided that each Rating Agency is
given not less than 3 Business Days prior notice by the Manager of
any variation to the Prescribed Rate and the Prescribed Rate will
not be varied if such variation would result in a reduction,
qualification or withdrawal by a Rating
Agency of its then current credit rating of a Security.
"RECEIVER" means a person appointed under or by virtue of the
Security Trust Deed as a receiver or receiver and manager.
"SERIES SUPPLEMENT" means the Series Supplement dated on or about
the date of this Agreement between the Liquidity Facility Provider
(as a Seller and the Servicer), Homepath Pty Limited ABN 35 081 986
530, SAS and the Trustee.
"SERIES TRUST" means the trust known as the Medallion Trust Series
[ ] established pursuant to the Master Trust Deed and the Series
Supplement.
"SPECIFIED RATE" means, on any day, the sum of:
(a) BBSW for the Interest Period that includes that day (or
if the day is not within an Interest Period, BBSW for
the first Business Day of the month that includes that
day as if that month were an Interest Period); and
(b) 0.30% per annum.
"TERMINATION DATE" means the earliest of:
(a) the Scheduled Maturity Date;
(b) the date declared or appointed by the Liquidity Facility
Provider or the Trustee to be the Termination Date in
accordance with this Agreement;
(c) the date which is one month after the date on which all
Securities have been redeemed in full in accordance with
the Series Supplement or the Offshore Note Conditions
(as the case may be); and
(d) the date on which the Facility Limit is reduced to zero
in accordance with this Agreement.
1.2 SERIES SUPPLEMENT AND MASTER TRUST DEED DEFINITIONS
Subject to clause 1.6, unless defined in this Agreement, words and
phrases defined in either or both of the Master Trust Deed and the
Series Supplement have the same meaning in this Agreement. Where
there is any inconsistency in a definition between this Agreement
(on the one hand) and the Master Trust Deed or the Series Supplement
(on the other hand), this Agreement prevails. Where there is any
inconsistency in a definition between the Master Trust Deed and the
Series Supplement, the Series Supplement prevails over the Master
Trust Deed in respect of this Agreement. Subject to clause 1.6,
where words or phrases used but not defined in this Agreement are
defined in the Master Trust Deed in relation to a Series Trust (as
defined in the Master Trust Deed) and/or an Other Trust such words
or phrases are to be construed in this Agreement, where necessary,
as being used only in relation to the Series Trust (as defined in
this Agreement) and/or the CBA Trust, as the context requires.
1.3 INTERPRETATION
In this Agreement, unless the contrary intention appears:
(a) headings are for convenience only and do not affect the
interpretation of this Agreement;
(b) a reference to this "AGREEMENT" includes the Background
and the Schedule;
(c) the expression "PERSON" includes an individual, the
estate of an individual, a body
politic, a corporation and a statutory or other
authority or association (incorporated or
unincorporated);
(d) a reference to a person includes that person's
executors, administrators, successors, substitutes and
assigns, including any person taking by way of novation;
(e) subject to clause 1.6, a reference to any document or
agreement is to such document or agreement as amended,
novated, supplemented, varied or replaced from time to
time;
(f) a reference to any legislation or to any section or
provision of any legislation includes any statutory
modification or re-enactment or any statutory provision
substituted for that legislation and all ordinances,
by-laws, regulations and other statutory instruments
issued under that legislation, section or provision;
(g) words importing the singular include the plural (and
vice versa) and words denoting a given gender include
all other genders;
(h) a reference to a clause is a reference to a clause of
this Agreement;
(i) the expression "CERTIFIED" means, in respect of a
person, certified in writing by two Authorised Officers
of that person or by legal counsel acting for that
person and "CERTIFY" and like expressions will be
construed accordingly;
(j) a reference to "WILFUL DEFAULT" in relation to the
Trustee or the Manager, means, subject to clause 1.3(k)
any wilful failure by the Trustee to comply with, or
wilful breach by the Trustee or the Manager (as the case
may be) of any of its obligations under any Transaction
Document, other than a failure or breach which:
(i) A. arises as a result of a breach of
a Transaction Document by a
person other than:
1) the Trustee or the
Manager (as the case
may be); or
2) any other person
referred to in clause
1.3(k);
B. the performance of the action
(the non-performance of which
gave rise to such breach) is a
pre-condition to the Trustee or
the Manager (as the case may be)
performing the said obligation;
or
(ii) is in accordance with a lawful court order
or direction or is required by law; or
(iii) is in accordance with a proper instruction
or direction of Investors given at a meeting
convened under any Transaction Document;
(k) a reference to the "FRAUD", "NEGLIGENCE" or
"WILFUL DEFAULT" of the Trustee means the fraud,
negligence or wilful default of the Trustee and of its
officers, employees, agents and any other person where
the Trustee is liable for the acts or omissions of such
other person under the terms of any Transaction
Document;
(l) where any word or phrase is given a defined meaning, any
other part of speech or other grammatical form in
respect of such word or phrase has a corresponding
meaning;
(m) where any day on which a payment is due to be made or a
thing is due to be done under this Agreement is not a
Business Day, that payment must be made or that
thing must be done on the immediately succeeding
Business Day;
(n) a reference to the "CLOSE OF BUSINESS" on any day is a
reference to 5.00 pm on that day;
(o) a reference to time is to local time in Sydney; and
(p) subject to clause 17.2, each party will only be
considered to have knowledge or awareness of, or notice
of, a thing or grounds to believe anything by virtue of
the officers of that party (or any Related Body
Corporate of that party) which have day to day
responsibility for the administration or management of
that party's (or a Related Body Corporate of that
party's) obligations in relation to the Series Trust or
the Liquidity Facility having actual knowledge, actual
awareness or actual notice of that thing, or grounds or
reason to believe that thing (and similar references
will be interpreted in this way). In addition, notice,
knowledge or awareness of an Event of Default, Manager
Default, Servicer Default or Perfection of Title Event
means notice, knowledge or awareness of the occurrence
of the events or circumstances constituting an Event of
Default, Manager Default, Servicer Default or Perfection
of Title Event (as the case may be).
1.4 TRUSTEE CAPACITY
In this Agreement, except where provided to the contrary:
(a) (REFERENCES TO TRUSTEE): a reference to the Trustee is a
reference to the Trustee in its capacity as trustee of
the Series Trust only, and in no other capacity; and
(b) (REFERENCES TO ASSETS OF TRUSTEE): a reference to the
undertaking, assets, business or money of the Trustee is
a reference to the undertaking, assets, business or
money of the Trustee in the capacity referred to in
paragraph (a).
1.5 MASTER TRUST DEED AND SERIES SUPPLEMENT
For the purposes of the Master Trust Deed and the Series Supplement:
(a) (TRANSACTION DOCUMENT): this Agreement is a Transaction
Document; and
(b) (SUPPORT FACILITY): the Facility made available pursuant
to the terms of this Agreement is a Support Facility.
1.6 INCORPORATED DEFINITIONS AND OTHER TRANSACTION DOCUMENTS AND
PROVISIONS
Where in this Agreement a word or expression is defined by reference
to its meaning in another Transaction Document or there is a
reference to another Transaction Document or to a provision of
another Transaction Document, any amendment to the meaning of that
word or expression or to that other Transaction Document or
provision (as the case may be) will be of no effect for the purposes
of this Agreement unless and until the amendment is consented to by
the parties to this Agreement.
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2. THE FACILITY
2.1 AMOUNT
Subject to this Agreement, the Liquidity Facility Provider agrees to
make Advances to the Trustee up to an aggregate principal amount
equal to the Facility Limit.
2.2 METHOD OF MAKING ADVANCES
Advances under the Facility will be by way of either Direct Advances
or Cash Advance Deposits.
2.3 PURPOSE
The Manager will direct the Trustee to use, and the Trustee will
use, the proceeds of each Drawing under the Facility exclusively for
the Approved Purpose.
2.4 TERMINATION OF THE FACILITY
The Facility will terminate on the Termination Date.
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3. CONDITIONS PRECEDENT
3.1 CONDITIONS PRECEDENT TO FIRST ADVANCE
The Liquidity Facility Provider is not obliged to make the first
Advance to the Trustee unless the Liquidity Facility Provider has
received each of the following, in form and substance acceptable to
the Liquidity Facility Provider:
(a) (THIS AGREEMENT): this Agreement duly executed and
delivered by the Trustee and the Manager;
(b) (POWER OF ATTORNEY): a copy of each power of attorney
under which this Agreement has been or will be executed
by the Trustee and the Manager, certified as a true copy
by the Trustee and the Manager respectively;
(c) (AUTHORISED OFFICERS): a list of the Authorised Officers
of the Manager;
(d) (SECURITY TRUST DEED): a copy of the Security Trust Deed
executed by the parties thereto and certified as a true
copy by the Manager;
(e) (POOL MORTGAGE INSURANCE POLICY): an executed original
counterpart of the Pool Mortgage Insurance Policy
together with a letter from PMI confirming that it has
accepted for insurance under the Pool Mortgage Insurance
Policy the Mortgage Loans referred to in the certificate
attached to the letter; and
(f) (LEGAL OPINION): a legal opinion addressed to the
Liquidity Facility Provider from the Trustee's
solicitors in form and substance satisfactory to the
Liquidity Facility Provider.
3.2 CONDITIONS PRECEDENT TO ALL ADVANCES
The obligation of the Liquidity Facility Provider to make each
Advance is subject to the further conditions precedent that:
(a) (REPRESENTATIONS AND WARRANTIES TRUE): the
representations and warranties made or deemed to be made
by the Trustee or the Manager in any Transaction
Document are true and correct as of the date of the
corresponding Drawdown Notice and Drawdown Date as
though made at that date;
(b) (NO EVENT OF DEFAULT): no Event of Default is subsisting
at the date of the corresponding Drawdown Notice and
Drawdown Date or will result from the provision or
continuation of the Advance; and
(c) (NO NOTICE OF SECURITY INTERESTS): other than in respect
of priorities granted by statute, the Liquidity Facility
Provider has not received notice from any person that it
claims to have a Security Interest ranking in priority
to or equal with the Security Interest held by the
Liquidity Facility Provider under the Security Trust
Deed.
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4. DRAWDOWN
4.1 PREPARATION OF DRAWDOWN NOTICES
If on a Determination Date the Manager determines in accordance with
the Series Supplement that a Gross Income Shortfall has occurred in
respect of the Collection Period just ended the Manager must:
(a) (PREPARE DRAWDOWN NOTICE): prepare a Drawdown Notice in
accordance with clause 4.3 requesting a Drawing on the
next Distribution Date; and
(b) (DELIVER DRAWDOWN NOTICE): deliver the Drawdown Notice
to the Trustee no later than the close of business on
the Business Day which is not less than 3 Business Days
before the proposed Drawdown Date.
4.2 SERVICE OF DRAWDOWN NOTICES
If the Trustee receives a Drawdown Notice from the Manager pursuant
to clause 4.1, it must:
(a) (SIGN DRAWDOWN NOTICE): sign the Drawdown Notice in
accordance with clause 4.3(b); and
(b) (DELIVER DRAWDOWN NOTICE): deliver the signed Drawdown
Notice to the Liquidity Facility Provider by the time
specified in clause 4.4(a).
4.3 REQUIREMENTS OF DRAWDOWN NOTICES
A Drawdown Notice must:
(a) (FORM): be in the form of the Schedule (or in such other
form as from time to time agreed amongst the Liquidity
Facility Provider, the Manager and the Trustee);
(b) (AUTHORISED OFFICER): be signed by an Authorised Officer
of the Trustee;
(c) (SPECIFY DRAWDOWN DATE): specify the proposed Drawdown
Date for the requested Advance which must be the next
Distribution Date;
(d) (IRREVOCABLE): be irrevocable;
(e) (LIQUIDITY AMOUNT): specify the Liquidity Amount; and
(f) (CALCULATION): provide details of the calculation of the
Liquidity Amount.
4.4 AVAILABILITY OF DRAWING
The Trustee may make a Drawing on any Distribution Date during the
Availability Period provided that:
(a) (RECEIPT OF DRAWDOWN NOTICE): the Liquidity Facility
Provider has received, not later than 11.00 am on the
Business Day which is not less than 2 Business Days
before the proposed Drawdown Date (or such later time as
the Liquidity Facility Provider may agree), a duly
completed Drawdown Notice; and
(b) (CONDITIONS PRECEDENT): the requirements of clause 3
have been satisfied or waived in writing by the
Liquidity Facility Provider before the Drawdown Notice
is given.
4.5 PAYMENT OF DRAWING
After receipt of a Drawdown Notice:
(a) (DEPOSIT TO COLLECTIONS ACCOUNT): other than during a
Cash Advance Deposit Period, the amount of a Drawing
requested in a Drawdown Notice will be deposited by the
Liquidity Facility Provider in the Collections Account
in immediately available funds no later than 10.00 am on
the Drawdown Date; and
(b) (SATISFIED FROM CASH ADVANCE DEPOSIT): during a Cash
Advance Deposit Period, the amount of a Drawing
requested in a Drawdown Notice will be satisfied from
the Cash Advance Deposit in accordance with clause 7.
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5. INTEREST
5.1 INTEREST PERIOD
(a) (DURATION): The duration of the Facility is
divided into successive Interest Periods.
(b) (FIRST INTEREST PERIOD): The first Interest
Period commences on (and includes) the first
Drawdown Date and ends on (but excludes) the
next Distribution Date.
(c) (SUCCEEDING INTEREST PERIODS): Each
succeeding Interest Period commences on (and
includes) a Distribution Date and ends on
(but excludes) the next following
Distribution Date.
(d) (LAST INTEREST PERIOD): The last Interest
Period ends on (but excludes) the first
Distribution Date that:
(i) follows the Termination Date; and
(ii) upon which all moneys the payment or
repayment of which form part of the
Obligations are paid or repaid in full to
the Liquidity Facility Provider.
5.2 CALCULATION OF INTEREST
Interest in respect of a Drawing accrues from day to day in respect
of each Interest Period at the Prescribed Rate for that Interest
Period on the amount of the Drawing on that day and based on a 365
day year.
5.3 PAYMENT OF INTEREST
The Trustee at the direction of the Manager will on each
Distribution Date pay to the Liquidity Facility Provider so much of
the then accrued interest on each Drawing as is available for this
purpose in accordance with the Series Supplement.
5.4 INTEREST ON UNPAID INTEREST
If any payment by the Trustee on a Distribution Date pursuant to
clause 5.3 is insufficient to pay the full amount of the then
accrued interest on a Drawing, such unpaid accrued interest will in
turn accrue interest (as a separate and independent obligation)
until paid at the Prescribed Rate for each succeeding Interest
Period and if not paid on the Distribution Date at
the end of each such succeeding Interest Period, will itself bear
interest in accordance with this clause.
5.5 INTEREST ON OVERDUE SUMS
If the Trustee fails to pay any amount due and payable by it under
or in respect of this Agreement at the time and in the manner
required under this Agreement and the Series Supplement, other than
as described in clause 5.4, that amount will bear interest in
accordance with this clause. Such interest is payable on demand and
will accrue on such amount from day to day at the Specified Rate for
that day from the date such amount is due for payment up to the date
of actual payment, before and (as a separate and independent
obligation) after judgment and if not paid at the end of a 30 day
period will itself bear interest in accordance with this clause.
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6. REPAYMENT OF DRAWINGS AND ADVANCES
6.1 REPAYMENT OF DRAWINGS DURING THE AVAILABILITY PERIOD
The Trustee will on each Distribution Date repay so much of each
outstanding Drawing as at the previous Determination Date as is
available for this purpose in accordance with the Series Supplement.
If a repayment of all or part of a Drawing in accordance with the
foregoing falls on a Distribution Date within the Cash Advance
Deposit Period, such repayment will be made by way of allocation to
the Cash Advance Deposit in accordance with clause 7.3(c).
6.2 RE-DRAWING
Amounts repaid pursuant to clause 6.1 may be redrawn by the Trustee
in accordance with the terms of this Agreement.
6.3 REPAYMENT ON TERMINATION
Notwithstanding clause 6.1, on the Distribution Date immediately
following the Termination Date (or if the Termination Date is on a
Distribution Date, then on that Distribution Date), the Trustee will
pay or repay so much of the aggregate of all Advances together with
interest accrued thereon and all other money, the payment or
repayment of which forms part of the Obligations, as is available
for this purpose in accordance with the Series Supplement. If all
amounts due in accordance with this clause 6.3 are not paid or
repaid in full on the Distribution Date in accordance with the
foregoing, on each succeeding Distribution Date the Trustee will pay
or repay so much of such amounts as there are funds available for
this purpose in accordance with the Series Supplement until such
amounts are paid or repaid in full.
6.4 PAYMENTS UNDER SECURITY TRUST DEED
Without prejudice to clause 15, the limitation of the Trustee's
liability to make payments under this Agreement will not apply for
the purposes of calculating any amounts payable out of the Assets of
the Series Trust to the Liquidity Facility Provider pursuant to the
Security Trust Deed.
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7. CASH ADVANCE DEPOSIT PERIOD
7.1 CASH ADVANCE DEPOSIT UPON RATINGS DOWNGRADE
(a) (RATING DOWNGRADE): If at any time the Liquidity
Facility Provider ceases to have the Designated Credit
Rating, the Liquidity Facility Provider must within 5
Business Days thereafter (or such longer period as the
Rating Agencies may agree), in satisfaction of its
obligation to make Advances during the Cash Advance
Deposit
Period, deposit in the Collections Account of the Series
Trust, as an Advance under the Facility, an amount equal
to the then un-utilised portion of the Facility Limit.
(b) (SUBSEQUENT RATING DOWNGRADE FOLLOWING UPGRADE): If at
any time following the application of clause 7.4 the
Liquidity Facility Provider ceases to have the
Designated Credit Rating, the Liquidity Facility
Provider must within 5 Business Days (or such longer
period as the Rating Agencies may agree) make a deposit
in the Collections Account in the manner, and on the
same terms as, provided in clause 7.1(a).
7.2 WITHDRAWAL FROM THE COLLECTIONS ACCOUNT
The Manager may only direct the Trustee to, and the Trustee may
only, make withdrawals from the Cash Advance Deposit in the
Collection Account as follows:
(a) (FOR A DRAWING): for the purposes of a Drawing pursuant
to clause 4.5(b) of a Liquidity Amount for the Approved
Purpose and otherwise upon and subject to the terms of
this Agreement;
(b) (REPAY CASH ADVANCE DEPOSIT): to repay to the Liquidity
Facility Provider the Cash Advance Deposit pursuant to
clauses 7.4, 7.5 and 7.6; or
(c) (IF NEW COLLECTIONS ACCOUNT): to be paid into a new
Collections Account opened in accordance with the Series
Supplement.
7.3 DRAWINGS DURING THE CASH ADVANCE DEPOSIT PERIOD
During a Cash Advance Deposit Period:
(a) (DRAWING TO BE SATISFIED FROM CASH ADVANCE DEPOSIT): any
Drawing pursuant to a Drawdown Notice must be satisfied
from the Cash Advance Deposit deposited in the
Collections Account;
(b) (AMOUNT APPLIED CONSTITUTES A DRAWING): the amount
applied from the Cash Advance Deposit in accordance with
clause 7.3(a) constitutes a Drawing, and the provisions
of this Agreement (including, but not limited to,
clauses 5 and 6 of this Agreement) will apply
accordingly;
(c) (CASH ADVANCE DEPOSIT TO BE CREDITED): any full or
partial repayment of a Drawing required to be made by
the Trustee in accordance with this Agreement will,
following receipt by the Trustee of a written direction
from the Manager, be applied in accordance with clause
6.1 by way of allocation by the Trustee of the relevant
amount for credit of that part of the Collections
Account comprising the Cash Advance Deposit; and
(d) (EFFECT OF ALLOCATION): an allocation by the Trustee in
accordance with clause 7.3(c) will, to the extent of the
amount so allocated, satisfy the obligation of the
Trustee under this Agreement as regards the repayment of
the Drawing in respect of which the deposit is made, but
will not reduce or affect the obligations of the Trustee
to pay to the Liquidity Facility Provider the Cash
Advance Deposit in accordance with clauses 6.3, 7.4,
7.5, 7.6 and 13.2.
7.4 LIQUIDITY FACILITY PROVIDER UPGRADE
If, at any time during a Cash Advance Deposit Period, the Liquidity
Facility Provider obtains the Designated Credit Rating, the Manager
will direct the Trustee to repay (and upon the receipt of such
direction the Trustee will repay) from the Collections Account of
the Series
Trust the then Cash Advance Deposit (which has not previously been
utilised in accordance with this Agreement) together with all
accrued, but unpaid, interest on that amount determined in
accordance with clause 7.7.
7.5 REDUCTION IN FACILITY LIMIT DURING CASH ADVANCE DEPOSIT PERIOD
If immediately prior to any Distribution Date during a Cash Advance
Deposit Period the then un-utilised portion of the Cash Advance
Deposit plus the amount of all outstanding Drawings exceeds the then
Facility Limit, the Manager will direct the Trustee to repay (and
upon receipt of such direction the Trustee will repay) from the Cash
Advance Deposit on the Distribution Date to the Liquidity Facility
Provider the amount of the excess.
7.6 TERMINATION OF AGREEMENT
If the Termination Date occurs during a Cash Advance Deposit Period
the Manager will direct the Trustee to repay (and within 2 Business
Days of receipt of such direction the Trustee will repay) from the
Collections Account of the Series Trust the then Cash Advance
Deposit (which has not previously been utilised in accordance with
this Agreement) together with all accrued, but unpaid, interest on
that amount determined in accordance with clause 7.7 and any other
amounts then due under this Agreement.
7.7 INTEREST ON CASH ADVANCE DEPOSIT
The Cash Advance Deposit will accrue interest at the rate and in
accordance with the manner of determination of interest then
applicable for amounts deposited to the Collections Account during
the Cash Advance Deposit Period. Such interest will be paid to the
Liquidity Facility Provider, in accordance with the Series
Supplement, on each Distribution Date during such period.
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8. PAYMENTS
8.1 TIME ON DUE DATE AND FREE OF SET-OFF & TAXES
All payments to be made under this Agreement will:
(a) (DUE DATE): be made not later than close of business on
the due date for payment and all such payments will be
made in such manner and to such account as the party
receiving the payment directs in writing; and
(b) (SET-OFF): be made without set-off or counterclaim and
free and clear of and without deduction for or on
account of present or future Taxes, levies, imposts,
duties, charges, fees, deductions, withholdings,
restrictions or conditions of any nature.
8.2 CERTIFICATE
A certificate signed by an Authorised Officer of the Liquidity
Facility Provider stating any amount or rate for the purposes of
this Agreement will, in the absence of manifest error on its face,
constitute prima facie evidence of the amount or rate stated
therein.
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9. ILLEGALITY AND INCREASED COST
9.1 ILLEGALITY
If any change in applicable law, regulation, treaty or official
directive or in the interpretation or administration thereof by any
Governmental Agency charged with the administration thereof
makes it, in the reasonable opinion of counsel to the Liquidity
Facility Provider evidenced in writing and addressed to the Trustee,
unlawful or impossible for the Liquidity Facility Provider to
maintain or give effect to its obligations under this Agreement, the
Liquidity Facility Provider may by written notice to the Trustee
(with a copy to the Manager) appoint a date as the Termination Date
which date must not be prior to 30 days (or such shorter period
required by law) after the date of receipt by the Trustee of written
notice from the Liquidity Facility Provider appointing the
Termination Date.
9.2 INCREASED COST
(a) (CHANGE IN LAW): If by reason of any change
in law or in its interpretation or
administration or because of compliance with
any request from or requirement of any
fiscal, monetary or other Governmental
Agency:
(i) the Liquidity Facility Provider incurs a
cost as a result of its having entered into
or performing its obligations under this
Agreement or as a result of any Advance
being outstanding hereunder;
(ii) there is any increase in the cost to the
Liquidity Facility Provider of funding or
maintaining any Advance;
(iii) the amount of principal, interest or other
amount payable to the Liquidity Facility
Provider or the effective return to the
Liquidity Facility Provider under this
Agreement is reduced; or
(iv) the Liquidity Facility Provider becomes
liable to make any payment (not being a
payment of Tax on its overall net income) on
or calculated by reference to the amount of
Advances made under this Agreement,
then from time to time on notification by the Liquidity
Facility Provider (with a copy to the Manager) the
Trustee will on the Distribution Date following such
notification and on each succeeding Distribution Date
until the Liquidity Facility Provider is paid in full
pay to the Liquidity Facility Provider so much of the
amounts sufficient to indemnify the Liquidity Facility
Provider against such cost, increased cost, reduction or
liability that is available for this purpose in
accordance with the Series Supplement.
(b) (NO DEFENCE): If the Liquidity Facility Provider has
acted in good faith it will not be a defence to the
Trustee, in the event of any failure by the Trustee to
comply with its payment obligations under clause 9.2(a),
that any such cost, increased cost, reduction or
liability could have been avoided. However, the
Liquidity Facility Provider will negotiate in good faith
with the Trustee and the Manager with a view to finding
a means by which such cost, increased cost, reduction or
liability may be minimised.
(c) (CERTIFICATE CONCLUSIVE): The Liquidity Facility
Provider's certificate as to the amount of, and basis
for arriving at, any such cost, increased cost,
reduction or liability is conclusive and binding on the
Trustee in the absence of manifest error on the face of
the certificate.
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10. FEES
The Trustee will pay to the Liquidity Facility Provider a commitment
fee of 0.10% per annum of the then un-utilised portion of the
Facility Limit. The commitment fee will be calculated daily from the
date the Facility becomes available on the basis of a 365 day year
and will be paid in arrears on each Distribution Date in accordance
with the Series Supplement. The
amount of the commitment fee may be varied by agreement between the
Trustee, the Manager and the Liquidity Facility Provider provided
that each Rating Agency is given not less than 3 Business Days prior
notice by the Manager of any variation to the amount of the
commitment fee and the amount of the commitment fee will not be
varied if such variation would result in a reduction, qualification
or withdrawal by a Rating Agency of its then current credit rating
of a Security. To the extent that such funds are not sufficient to
pay the fee in full, the fee must be paid from the funds available
on each succeeding Distribution Date until paid in full.
11. REPRESENTATIONS AND WARRANTIES
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11.1 GENERAL REPRESENTATIONS AND WARRANTIES
The Trustee in its capacity as trustee of the Series Trust
represents and warrants to the Liquidity Facility Provider that:
(a) (EXECUTION, DELIVERY AND PERFORMANCE): the execution,
delivery and performance of this Agreement and each
other Transaction Document in relation to the Series
Trust to which it is a party does not violate any
existing law or regulation or any document or agreement
to which it is a party or which is binding upon it or
any of its assets;
(b) (CORPORATE POWER AND AUTHORISATION): the Trustee has the
power to enter into, and to perform its obligations, and
has taken all corporate and other action necessary to
authorise the entry into of, and performance of its
obligations under, this Agreement and each other
Transaction Document in relation to the Series Trust and
to which it is a party;
(c) (LEGALLY BINDING OBLIGATION): this Agreement and each of
the other Transaction Documents to which it is a party
constitute its valid and legally binding obligations
subject to stamping and any necessary registration
except as such enforceability may be limited by any
applicable bankruptcy, insolvency, reorganisation,
moratorium or trust or other similar laws affecting
creditors' rights generally; and
(d) (NO EVENT OF DEFAULT): to the best of the Trustee's
knowledge, no Event of Default or event which with the
giving of notice, lapse of time or other applicable
condition would become an Event of Default has occurred
which has not been waived or remedied in accordance with
this Agreement.
11.2 CORPORATE REPRESENTATIONS AND WARRANTIES
The Trustee in its capacity as trustee of the Series Trust
represents and warrants in respect of itself to the Liquidity
Facility Provider that:
(a) (DUE INCORPORATION): it is duly incorporated and has the
corporate power to own its own property and to carry on
its business as is now being conducted; and
(b) (EXECUTION, DELIVERY AND PERFORMANCE): the execution,
delivery and performance of this Agreement and each
other Transaction Document in relation to the Series
Trust to which it is a party does not violate its
constitution.
11.3 SERIES TRUST REPRESENTATIONS AND WARRANTIES
The Trustee in its capacity as trustee of the Series Trust
represents and warrants to the Liquidity Facility Provider in
relation to the Series Trust as follows:
(a) (SERIES TRUST VALIDLY CREATED): the Series Trust has
been validly created and is in existence at the date of
this Agreement;
(b) (SOLE TRUSTEE): the Trustee has been validly appointed
as trustee of the Series Trust and is presently the sole
trustee of the Series Trust;
(c) (NO PROCEEDINGS TO REMOVE): no notice has been given to
the Trustee and to the Trustee's knowledge no resolution
has been passed or direction or notice has been given,
removing the Trustee as trustee of the Series Trust;
(d) (TRUSTEE'S POWER): the Trustee has power under the
Master Trust Deed to enter into the Transaction
Documents to which it is a party in its capacity as
trustee of the Series Trust; and
(e) (GOOD TITLE): the Trustee is the lawful owner of the
Assets of the Series Trust and has power under the
Master Trust Deed to mortgage or charge them in the
manner provided in the Security Trust Deed.
11.4 LIQUIDITY FACILITY PROVIDER
The Liquidity Facility Provider represents and warrants to the
Trustee that:
(a) (EXECUTION, DELIVERY AND PERFORMANCE): the execution,
delivery and performance of this Agreement and each
other Transaction Document in relation to the Series
Trust to which it is a party does not violate any
existing law or regulation or any document or agreement
to which it is a party or which is binding upon it or
any of its assets;
(b) (CORPORATE POWER AND AUTHORISATION): the Liquidity
Facility Provider has the power to enter into, and to
perform its obligations, and has taken all corporate and
other action necessary to authorise the entry into of,
and performance of its obligations under, this Agreement
and each other Transaction Document in relation to the
Series Trust and to which it is a party; and
(c) (LEGALLY BINDING OBLIGATION): this Agreement and each of
the other Transaction Documents to which it is a party
constitute its valid and legally binding obligations
subject to stamping and any necessary registration
except as such enforceability may be limited by any
applicable bankruptcy, insolvency, reorganisation,
moratorium or trust or other similar laws affecting
creditors' rights generally.
11.5 REPRESENTATIONS AND WARRANTIES REPEATED
Each representation and warranty contained in clauses 11.1, 11.2,
11.3 and 11.4 will be deemed to be repeated on each Drawdown Date
with reference to the facts and circumstances then subsisting, as if
made on each such day.
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12. UNDERTAKINGS
12.1 GENERAL
The Trustee undertakes to the Liquidity Facility Provider that it
will:
(a) (ACT CONTINUOUSLY): act continuously as trustee of the
Series Trust in accordance with the Master Trust Deed
and the Series Supplement until the Series Trust is
terminated or until it has retired or been removed in
accordance with the Master Trust Deed;
(b) (DO ALL THINGS NECESSARY): do everything and take all
such actions which are necessary (including, without
limitation, obtaining all such authorisations and
approvals as are appropriate) to ensure that it is able
to exercise all its powers and
remedies and perform all its obligations under this
Agreement, other arrangements entered into by the
Trustee pursuant to this Agreement and each Transaction
Document to which it is a party;
(c) (MAINTAIN AUTHORISATIONS): ensure that each
authorisation required for it to maintain its status as
trustee of the Series Trust is obtained and promptly
renewed and maintained in full force and effect; and
(d) (NOT AMEND OR REVOKE): not consent to amend or revoke
the provisions of the Master Trust Deed, the Series
Supplement or the Security Trust Deed in respect of
payments or the order of priorities of payments to be
made thereunder without the prior written consent of the
Liquidity Facility Provider.
12.2 MANAGER'S UNDERTAKINGS AFTER MANAGER EVENT
At any time after a Manager Event occurs the Manager will:
(a) (NOTIFY LIQUIDITY FACILITY PROVIDER):
immediately notify the Liquidity Facility
Provider as soon as it becomes actually
aware of the occurrence of:
(i) any Event of Default, Servicer Default,
Trustee Default, Potential Termination
Event, Perfection of Title Event or Manager
Default; or
(ii) any litigation, arbitration, criminal or
administrative proceedings relating to any
of the Trustee's property, assets or
revenues that involves a claim against it in
excess of A$1 million or that, if decided
adversely to it, could have a material
adverse effect on its ability to perform the
Obligations,
and in each case advise the Liquidity Facility Provider
of what steps it has taken and what steps it proposes to
take in relation to such occurrences; and
(b) (DELIVER MATERIALS): deliver to the Liquidity Facility
Provider:
(i) as soon as practicable and in any event not
later than 120 days after the close of each
of the Series Trust's financial years, a
copy of the audited Accounts of the Series
Trust;
(ii) as soon as practicable and in any event not
later than 90 days after the first half of
each of the Series Trust's financial years,
a copy of a statement setting out the Assets
and Liabilities of the Series Trust for that
half-year;
(iii) a soon as practical and in any event not
later than 90 days after each half year of
each financial year of the Series Trust, a
copy of the written report prepared by the
Auditor in accordance with clause 21.9 of
the Master Trust Deed;
(iv) as and when required by the Liquidity
Facility Provider, a certificate executed by
two Authorised Officers on behalf of the
Manager stating to the best of the knowledge
of the Manager whether or not an Event of
Default, Servicer Default, Trustee Default,
Potential Termination Event, Perfection of
Title Event or Manager Default has occurred
and if the same has occurred, setting out
the details of such event and the steps (if
any) taken by the Manager to remedy or cure
the same; and
(v) promptly, such further information regarding
the Series Trust's financial
condition and business operations within the
knowledge of the Manager as the Liquidity
Facility Provider from time to time reasonably
requires.
12.3 LIQUIDITY FACILITY PROVIDER UNDERTAKING
The Liquidity Facility Provider undertakes to the Trustee that it
will do everything and take all such actions which are necessary
(including, without limitation, obtaining all such authorisations
and approvals as are appropriate) to ensure that it is able to
exercise all its powers and remedies and perform all its obligations
under this Agreement, other arrangements entered into by the
Liquidity Facility Provider pursuant to this Agreement and each
Transaction Document to which it is a party.
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13. EVENTS OF DEFAULT
13.1 EVENTS OF DEFAULT
Each of the following events is an Event of Default whether or not
caused by any reason whatsoever outside the control of the Trustee
or any other person:
(a) (FAILURE TO REPAY OR PAY): the Trustee fails to repay,
in accordance with this Agreement, any Advance or fails
to pay any interest, fees, costs, charges, expenses or
other moneys payable under this Agreement in each case
within 10 Business Days of the due date for payment of
such amount;
(b) (BREACH OF UNDERTAKING): the Trustee breaches its
undertaking in clause 12.1(d); and
(c) (EVENT OF DEFAULT UNDER SECURITY TRUST DEED): an Event
of Default (as defined in the Security Trust Deed in
relation to the Series Trust) occurs and any action is
taken by the Security Trustee, pursuant to clause 10 of
the Security Trust Deed, to appoint a Receiver in
respect of the Assets of the Series Trust or to sell and
realise the Assets of the Series Trust or the Security
Trustee takes any action pursuant to clause 11 of the
Security Trust Deed.
13.2 CONSEQUENCES OF EVENT OF DEFAULT
At any time after the occurrence of an Event of Default the
Liquidity Facility Provider may, without being obliged to do so and
notwithstanding any waiver of any previous default, by written
notice to the Trustee:
(a) (DECLARE ADVANCES DUE): declare the Advances, accrued
interest and all other sums which have accrued due under
this Agreement (whether or not presently payable) to be
due, whereupon they will become immediately due and
payable; and/or
(b) (DECLARE FACILITY TERMINATED): declare the Facility
terminated in which case the obligations of the
Liquidity Facility Provider under this Agreement will
immediately terminate from the date of receipt by the
Trustee of such written notice.
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14. TERMINATION BY TRUSTEE
14.1 TRUSTEE MAY DECLARE A TERMINATION DATE
Subject to clause 14.2, the Trustee may at the direction of the
Manager, by not less than 5 Business Days written notice to the
Liquidity Facility Provider and the Manager, declare a
Distribution Date as the date on which:
(a) (SUBSTITUTE LIQUIDITY FACILITY PROVIDER): the Liquidity
Facility Provider hereunder will be replaced by a
substitute Liquidity Facility Provider; and
(b) (TERMINATION): the Liquidity Facility will terminate.
14.2 REQUIREMENTS FOR TERMINATION
On or before the declaration of a Distribution Date by the Trustee
in accordance with clause 14.1, the Trustee must obtain written
confirmation from the Rating Agencies that the termination of the
Facility and the appointment of the proposed substitute Liquidity
Facility Provider on that Distribution Date will not result in a
downgrade, qualification or withdrawal of the credit ratings then
assigned by them to the Securities.
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15. TRUSTEE PROVISIONS
15.1 LIMITATION ON TRUSTEE'S LIABILITY
The Trustee enters into this Agreement only in its capacity as
trustee of the Series Trust and in no other capacity. A liability
incurred by the Trustee acting in its capacity as trustee of the
Series Trust arising under or in connection with this Agreement is
limited to and can be enforced against the Trustee only to the
extent to which it can be satisfied out of the Assets of the Series
Trust out of which the Trustee is actually indemnified for the
liability. This limitation of the Trustee's liability applies
despite any other provision of this Agreement (other than clause
15.3) and extends to all liabilities and obligations of the Trustee
in any way connected with any representation, warranty, conduct,
omission, agreement or transaction related to this Agreement.
15.2 CLAIMS AGAINST TRUSTEE
The parties other than the Trustee may not xxx the Trustee in
respect of liabilities incurred by the Trustee acting in its
capacity as trustee of the Series Trust in any capacity other than
as trustee of the Series Trust including seeking the appointment of
a receiver (except in relation to the Assets of the Series Trust), a
liquidator, an administrator or any similar person to the Trustee,
or prove in any liquidation, administration or similar arrangements
of or affecting the Trustee (except in relation to the Assets of the
Series Trust).
15.3 BREACH OF TRUST
The provisions of this clause 15 will not apply to any obligation or
liability of the Trustee to the extent that it is not satisfied
because under the Master Trust Deed, the Series Supplement, any
other Transaction Document in relation to the Series Trust or by
operation of law there is a reduction in the extent of the Trustee's
indemnification out of the Assets of the Series Trust as a result of
the Trustee's fraud, negligence or wilful default.
15.4 ACTS OR OMISSIONS
It is acknowledged that the Relevant Parties are responsible under
the Transaction Documents for performing a variety of obligations
relating to the Series Trust. No act or omission of the Trustee
(including any related failure to satisfy its obligations or any
breach of representations or warranties under this Agreement) will
be considered fraud, negligence or wilful default of the Trustee for
the purpose of clause 15.3 to the extent to which the act or
omission was caused or contributed to by any failure by any Relevant
Party or any other person appointed by the Trustee under any
Transaction Document (other than a person whose acts or omissions
the Trustee is liable for in accordance with any Transaction
Document) to fulfil its obligations in
relation to the Series Trust or by any other act or omission of a
Relevant Party or any other such person.
15.5 NO OBLIGATION
The Trustee is not obliged to enter into any commitment or
obligation under this Agreement or any Transaction Document
(including incur any further liability) unless the Trustee's
liability is limited in a manner which is consistent with this
clause 15 or otherwise in a manner satisfactory to the Trustee in
its absolute discretion.
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16. ASSIGNMENT
16.1 ASSIGNMENT BY TRUSTEE
The Trustee will not assign or otherwise transfer the benefit of
this Agreement or any of its rights, duties or obligations under
this Agreement except to a Substitute Trustee acceptable to the
Liquidity Facility Provider (whose consent is not to be unreasonably
withheld).
16.2 ASSIGNMENT BY LIQUIDITY FACILITY PROVIDER
The Liquidity Facility Provider will not assign or otherwise
transfer all or any part of the benefit of this Agreement or any of
its rights, duties and obligations under this Agreement except to an
assignee or transferee that has a Designated Credit Rating or, if
the assignee or transferee does not have a Designated Credit Rating,
the assignee or transferee complies immediately prior to the
completion of the assignment or transfer with clause 7.1(a). The
Liquidity Facility Provider may disclose to a proposed assignee or
transferee information in the possession of the Liquidity Facility
Provider relating to the Trustee or the Manager. An assignment or
transfer by the Liquidity Facility Provider pursuant to this clause
16.2 shall not be of any effect until the Liquidity Facility
Provider has notified the Trustee in writing of the assignment or
transfer, as the case may be.
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17. NOTICES
17.1 METHOD OF DELIVERY
Subject to this clause, any notice, request, certificate, approval,
demand, consent or other communication to be given under this
Agreement must:
(a) (IN WRITING AND SIGNED BY AN AUTHORISED OFFICER): except
in the case of communication by email, be in writing and
signed by 2 Authorised Officers of the party giving the
same; and
(b) (DELIVERY): be:
(i) left at the address of the addressee;
(ii) sent by prepaid ordinary post to the address
of the addressee;
(iii) sent by facsimile to the facsimile number of
the addressee; or
(iv) sent by email by an Authorised Officer of
the party giving the same in accordance with
the addressee's email address,
notified by that addressee from time to time to the
other parties to this Agreement as its address for
service pursuant to this Agreement.
17.2 DEEMED RECEIPT
A notice, request, certificate, demand, consent or other
communication under this Agreement is deemed to have been received:
(a) (DELIVERY): where delivered in person, upon receipt;
(b) (POST): where sent by post within Australia, on the 3rd
day after posting and where sent by post to, from or
outside Australia, on the 7th day after posting;
(c) (FAX): where sent by facsimile, on production by the
dispatching facsimile machine of a transmission report
which indicates that the facsimile was sent in its
entirety to the facsimile number of the recipient; and
(d) (EMAIL): where sent by email, on the date the email is
received.
However, if the time of deemed receipt of any notice is not before
5.30 pm on a Business Day at the address of the recipient it is
deemed to have been received at the commencement of business on the
next Business Day.
17.3 EMAIL
A notice, request, certificate, approval, demand, consent or other
communication to be given under this Agreement may only be given by
email where the recipient has separately agreed that that
communication or communications of that type, may be given by email.
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18. INDEMNITY
18.1 INDEMNITY ON DEMAND
Subject to clause 15, the Trustee will on demand indemnify the
Liquidity Facility Provider against any loss, cost or expenses which
the Liquidity Facility Provider may sustain or incur as a
consequence of:
(a) (OVERDUE SUMS): any sum payable by the Trustee under
this Agreement not being paid when due;
(b) (EVENT OF DEFAULT): the occurrence of any Event of
Default;
(c) (FAILURE TO PROVIDE ADVANCE): an Advance requested in a
Drawdown Notice not being provided for any reason
including failure to fulfil any condition precedent but
excluding any matter within the control of the Liquidity
Facility Provider; or
(d) (PAYMENT OF PRINCIPAL): the Liquidity Facility Provider
receiving payments of principal other than on the last
day of the relevant Interest Period for any reason.
18.2 LOSSES ON LIQUIDATION OR RE-EMPLOYMENT OF DEPOSITS
The losses, costs or expenses referred to in clause 18.1 will
include the amount determined in good faith by the Liquidity
Facility Provider as being any loss (other than an amount for loss
of profit other than loss of margin) including:
(a) (LOSS OF MARGIN): loss of margin, cost or expense
incurred by reason of the liquidation or re-employment
of deposits or other funds acquired or contracted for by
the Liquidity Facility Provider to fund or maintain any
such Advance or amount;
(b) (OTHER ARRANGEMENTS): losses, costs, damages, charges or
expenses incurred by
the Liquidity Facility Provider in relation to the
variation, termination or making of any other
arrangements in relation to any arrangement ancillary or
related to this Agreement including, without limitation,
any swap or derivative agreement entered into by the
Liquidity Facility Provider in connection with or in
order to fund any Advances.
18.3 PAYMENT ON DISTRIBUTION DATE
Any payments to be made by the Trustee pursuant to this clause 18
will only be made on the Distribution Date following demand by the
Liquidity Facility Provider and on each succeeding Distribution Date
until the Liquidity Facility Provider is paid in full by payment of
so much of the amount sufficient to indemnify the Liquidity Facility
Provider as is available for this purpose in accordance with the
Series Supplement.
--------------------------------------------------------------------------------
19. MISCELLANEOUS
19.1 STAMP DUTIES
(a) (TRUSTEE MUST PAY): The Trustee will pay all stamp, loan
transaction, registration and similar Taxes including
fines and penalties (except such fines and penalties
incurred through the act, neglect or omission of the
Liquidity Facility Provider after the Liquidity Facility
Provider has requested and been put in funds to pay such
Taxes), financial institutions duty and debits tax which
may be payable or required to be paid by any appropriate
authority or determined to be payable in connection with
the execution, delivery, performance or enforcement of
this Agreement.
(b) (TRUSTEE MUST INDEMNIFY): Subject to clause 15, the
Trustee will indemnify and keep indemnified the
Liquidity Facility Provider against any loss or
liability incurred or suffered by it as a result of the
delay or failure by the Trustee to pay such Taxes.
19.2 WAIVER
A failure to exercise or enforce or a delay in exercising or
enforcing or the partial exercise or enforcement of any right,
remedy, power or privilege under this Agreement by the Liquidity
Facility Provider will not in any way preclude or operate as a
waiver of any further exercise or enforcement of such right, remedy,
power or privilege or the exercise or enforcement of any other
right, remedy, power or privilege under this Agreement or provided
by law.
19.3 WRITTEN WAIVER, CONSENT AND APPROVAL
Any waiver, consent or approval given by the Liquidity Facility
Provider under this Agreement will only be effective and will only
bind the Liquidity Facility Provider if it is given in writing, or
given verbally and subsequently confirmed in writing, and executed
by the Liquidity Facility Provider or on its behalf by two
Authorised Officers of the Liquidity Facility Provider.
19.4 SEVERABILITY
Any provision of this Agreement which is illegal, void or
unenforceable in any jurisdiction is ineffective in such
jurisdiction to the extent only of such illegality, voidness or
unenforceability without invalidating the remaining provisions of
this Agreement or affecting the validity or enforceability of the
provision in any other jurisdiction.
19.5 SURVIVAL OF INDEMNITIES
The indemnities contained in this Agreement are continuing
obligations of the Trustee, separate and independent from the other
obligations of the Trustee and will survive the termination of this
Agreement.
19.6 SUCCESSORS AND ASSIGNS
This Agreement is binding upon and inures to the benefit of the
parties to this Agreement and their respective successors and
permitted assigns.
19.7 MORATORIUM LEGISLATION
To the fullest extent permitted by law, the provisions of all
statutes whether existing now or in the future operating directly or
indirectly:
(a) (TO AFFECT OBLIGATIONS): to lessen or otherwise to vary
or affect in favour of the Trustee any obligation under
this Agreement; or
(b) (TO AFFECT RIGHTS): to delay or otherwise prevent or
prejudicially affect the exercise of any rights or
remedies conferred on the Liquidity Facility Provider
under this Agreement,
are hereby expressly waived, negatived and excluded.
19.8 AMENDMENTS
The parties to this Agreement may only amend this Agreement in
accordance with clause 33.1(b) of the Series Supplement.
19.9 GOVERNING LAW
This Agreement is governed by and construed in accordance with the
laws of the State of New South Wales.
19.10 JURISDICTION
Each of the parties irrevocably and unconditionally:
(a) (SUBMISSION TO JURISDICTION): submits to the
non-exclusive jurisdiction of the courts of the State of
New South Wales;
(b) (WAIVER OF INCONVENIENT FORUM): waives any objection it
may now or in the future have to the bringing of
proceedings in those courts and any claim that any
proceedings have been brought in an inconvenient forum;
and
(c) (SERVICE OF NOTICE): agrees, without preventing any
other mode of service permitted by law, that any
document required to be served in any proceedings may be
served in the manner in which notices and other written
communications may be given under clause 17.
19.11 COUNTERPARTS
This Agreement may be executed in a number of counterparts and all
such counterparts taken together will constitute one and the same
instrument.
19.12 CONTRA PROFERENTEM
Each provision of this Agreement will be interpreted without
disadvantage to the party who (or whose representative) drafted that
provision.
SCHEDULE
FORM OF DRAWDOWN NOTICE
To: Commonwealth Bank of Australia ABN 48 123 123 124
[Address]
Attention: Head of Securitisation
From: Perpetual Trustee Company Limited ABN 42 000 001 007
[Date]
In our capacity as trustee of the Series Trust, we hereby irrevocably request a
Drawing on the Drawdown Date specified below for an amount equal to the
Liquidity Amount specified below in accordance with clause 4 of the Liquidity
Facility Agreement dated [ ] between ourselves, Commonwealth Bank of
Australia and Securitisation Advisory Services Pty. Limited ABN 88 064 133 946
as amended, novated or supplemented from time to time (the "LIQUIDITY FACILITY
AGREEMENT"):
(a) Drawdown Date [ ]
(b) Liquidity Amount A$[ ]
(c) Calculation of Liquidity Amount [ ]
Words used and not otherwise defined herein have the same meaning as in the
Liquidity Facility Agreement.
SIGNED on behalf of PERPETUAL
TRUSTEE COMPANY LIMITED as
trustee of the Medallion Trust Series [ ] by:
.................................
(Authorised Officer)
.................................
(Name)
.................................
(Title)
EXECUTED as an agreement.
SIGNED for and on behalf of
COMMONWEALTH BANK OF AUSTRALIA
ABN 48 123 123 124
by
its Attorney under a Power of -----------------------------------
Attorney dated and who declares
that he or she has not received any Signature of Attorney
notice of the revocation of such
Power of Attorney in the presence
of:
-----------------------------------
-----------------------------------------
Name of Attorney in full
Signature of Witness
-----------------------------------------
Name of Witness in full
SIGNED for and on behalf of
PERPETUAL TRUSTEE COMPANY LIMITED
ABN 42 000 001 007
by
its Attorney under a Power of -----------------------------------
Attorney dated and who declares
that he or she has not received any Signature of Attorney
notice of the revocation of such
Power of Attorney in the presence
of:
-----------------------------------
Name of Attorney in full
-----------------------------------------
Signature of Witness
-----------------------------------------
Name of Witness in full
SIGNED for and on behalf of
SECURITISATION ADVISORY SERVICES
PTY. LIMITED ABN 88 064 133 946
by
its Attorney under a Power of -----------------------------------
Attorney dated and who declares
that he or she has not received any Signature of Attorney
notice of the revocation of such
Power of Attorney in the presence
of:
-----------------------------------
Name of Attorney in full
-----------------------------------------
Signature of Witness
-----------------------------------------
Name of Witness in full
