PAYMENT FUNDING FACILITY
AGREEMENT FOR ISSUE AND REPAYMENT
OF NOTES SMHL GLOBAL FUND NO. 4
ORIGINATION FUND NO. 3
PERPETUAL TRUSTEES AUSTRALIA LIMITED
ABN 86 000 000 000
PERPETUAL TRUSTEES AUSTRALIA LIMITED
ABN 86 000 000 000
ME PORTFOLIO MANAGEMENT LIMITED
ABN 79 005 964 134
and
ME PORTFOLIO MANAGEMENT LIMITED
ABN 79 005 964 134
[FREEHILLS LOGO OMITTED]
MLC Centre Xxxxxx Xxxxx Xxxxxx Xxx Xxxxx Xxxxx 0000 Xxxxxxxxx
Telephone 00 0 0000 0000 Facsimile 61 2 9322 4000
xxx.xxxxxxxxx.xxx DX 000 Xxxxxx
XXXXXX XXXXXXXXX PERTH CANBERRA BRISBANE HANOI HO CHI MINH CITY SINGAPORE
Correspondent Offices JAKARTA KUALA LUMPUR
Liability limited by the Solicitors' Limitation of Liability
Scheme, approved under the Professional Standards Xxx 0000
(NSW)
Reference PSJR:TEL:25E
TABLE OF CONTENTS
Clause Page
1 DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 6
1.3 Banking Day 8
1.4 Transaction Document 8
2 THE NOTES 8
2.1 Application for and Issue of Notes 8
2.2 Acknowledgment of Indebtedness 8
2.3 Obligations under Notes 8
2.4 Ownership of Notes 9
2.5 Register 9
3 PURPOSE 9
4 FUNDING PROCEDURES 9
4.1 Delivery of Funding Notice 9
4.2 Requirements for a Funding Notice 10
4.3 Copy of the Funding Notice to be provided to the Issuer 10
4.4 Irrevocability of Funding Notice 10
5 LOAN FACILITY 10
5.1 Provision of Funding Portions 10
5.2 Repayment of Outstanding Moneys 11
5.3 Interest 11
5.4 Order of Repayment 12
5.5 Acknowledgments 12
6 PAYMENTS 13
6.1 Manner of payments 13
6.2 Payments on a Banking Day 13
6.3 Appropriation of payments 13
6.4 Payments in gross 13
6.5 Amounts payable on demand 13
7 REPRESENTATIONS AND WARRANTIES 14
7.1 By the Issuer 14
7.2 By the SF Manager 15
7.3 Survival and repetition of representations and warranties 15
7.4 Reliance by the Note Holder and OF Manager 15
8 UNDERTAKINGS 16
8.1 Term of undertakings 16
PAGE 1
8.2 Compliance with Covenants 16
8.3 Notify Events of Default 16
9 EVENTS OF DEFAULT 16
9.1 Operation of clause 9 16
9.2 Effect of Event of Default 16
9.3 Issuer to continue to perform 16
9.4 Enforcement 17
10 TRUSTEE LIMITATION OF LIABILITY PROTECTION 17
10.1 Limitation of Liability - Issuer 17
10.2 Limitation of Liability - Note Holder 18
10.3 Wilful Default of the Issuer and the Note Holder 19
11 INDEMNITIES 20
11.1 General indemnity 20
11.2 Continuing indemnities and evidence of loss 20
11.3 Funds available for indemnity 21
11.4 Negligence, wilful default or breach of law 21
11.5 Notification from Note Holder or OF Manager 21
12 TAX, COSTS AND EXPENSES 21
12.1 Tax 21
12.2 Costs and expenses 22
12.3 Goods and services tax 22
13 INTEREST ON OVERDUE AMOUNTS 23
13.1 Payment of interest 23
13.2 Accrual of interest 23
13.3 Rate of interest 23
14 ASSIGNMENT 23
14.1 Assignment by Transaction Party 23
14.2 Assignment by Note Holder 23
14.3 Assist transfer or assignment 24
14.4 Participation permitted 24
14.5 Lending Office 24
14.6 Disclosure 24
14.7 No increase in costs 24
15 GENERAL 24
15.1 Confidential information 24
15.2 Performance by Note Holder of obligations 25
15.3 Transaction Party to bear cost 25
15.4 Notices 25
15.5 Governing law and jurisdiction 26
15.6 Prohibition and enforceability 26
15.7 Waivers 27
15.8 Variation 27
PAGE 2
15.9 Cumulative rights 27
15.10 Attorneys 27
15.11 Binding Obligations 27
15.12 Winding up of Securitisation Fund 27
15.13 Termination 27
PAGE 3
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THIS PAYMENT FUNDING FACILITY AGREEMENT
is made on [# #] 2003 between the following parties:
1 PERPETUAL TRUSTEES AUSTRALIA LIMITED
ABN 86 000 000 000
in its capacity as trustee of the Securitisation Fund (as
hereinafter defined) of Xxxxx 0, 00 Xxxxxx Xxxxxx, Xxxxxx, Xxx
Xxxxx Xxxxx
(ISSUER)
2 PERPETUAL TRUSTEES AUSTRALIA LIMITED
ABN 86 000 000 000
in its capacity as trustee of the Origination Fund (as
hereinafter defined) of Xxxxx 0, 00 Xxxxxx Xxxxxx, Xxxxxx, Xxx
Xxxxx Xxxxx
(NOTE HOLDER)
3 ME PORTFOLIO MANAGEMENT LIMITED
ABN 79 005 964 134
in its capacity as manager of the Securitisation Fund of Xxxxx
00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx
(XX MANAGER)
4. ME PORTFOLIO MANAGEMENT LIMITED
ABN 79 005 964 134
in its capacity as manager of the Origination Fund of Xxxxx
00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx
(OF MANAGER)
RECITALS
A. The Issuer is the trustee, and the SF Manager is the manager,
of the Securitisation Fund.
B. The Note Holder is the trustee, and the OF Manager is the
manager, of the Origination Fund.
C. The SF Manager has requested the OF Manager to direct the Note
Holder to make available a loan facility to the Issuer under
which the Issuer will issue notes to the Note Holder and the
Note Holder will purchase notes from the Issuer.
D. The Note Holder and the OF Manager have agreed to make
available a facility on the terms and conditions of this
agreement and have agreed with the SF Manager and the Issuer
that the terms and conditions of the issue and repayment of
any such notes are those contained in this agreement.
THE PARTIES AGREE
in consideration of, among other things, the mutual promises contained
in this agreement:
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1 DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this agreement, unless the context otherwise requires:
ATTORNEY means an attorney appointed under a Material
Document;
PAGE 1
AUTHORISATION includes:
(a) any consent, registration, filing, agreement,
notarisation, certificate, licence, approval, permit,
authority or exemption from, by or with a
Governmental Agency; and
(b) any consent or authorisation regarded as given by a
Governmental Agency due to the expiration of the
period specified by a statute within which the
Governmental Agency should have acted if it wished to
proscribe or limit anything already lodged,
registered or notified under that statute;
AUTHORISED INVESTMENTS has the meaning given to it in the
Master Trust Deed;
BANK has the meaning given to it in the Master Trust Deed;
BANKING DAY means a day on which Banks are open for business
in Melbourne and Sydney excluding a Saturday, Sunday or public
holiday;
BOND ISSUE DATE has the meaning given to it in the Master
Trust Deed;
BOND ISSUE DIRECTION has the meaning given to it in the Master
Trust Deed;
CHARGE means the charge created under the Security Trust Deed;
CLASS A NOTE has the meaning given to it in the Supplementary
Bond Terms Notice;
CLASS B NOTE has the meaning given to it in the Supplementary
Bond Terms Notice;
COLLECTIONS has the meaning given to it in the Supplementary
Bond Terms Notice;
CONDITIONS means the terms and conditions as set out in
schedule 2;
DESIGNATED RATING AGENCY has the meaning given to it in the
Master Trust Deed;
DOLLARS, A$ and $ means the lawful currency of the
Commonwealth of Australia;
ENCUMBRANCE means an interest or power:
(a) reserved in or over an interest in any asset
including, but not limited to, any retention of
title; or
(b) created or otherwise arising in or over any interest
in any asset under a xxxx of sale, mortgage, charge,
lien, pledge, trust or power,
by way of security for the payment of a debt, any other
monetary obligation or the performance of any other
obligation, and includes, but is not limited to, any agreement
to grant or create any of the above;
ENTITY has the same meaning as in Chapter 2E of the
Corporations Act;
EVENT OF DEFAULT means an Event of Default as defined in the
Security Trust Deed;
EXCLUDED TAX means any Tax imposed by any jurisdiction on the
net income of the Note Holder;
FACILITY means the payment funding facility made available by
the Note Holder to the Issuer under this agreement (by
purchase of Notes);
FITCH RATINGS has the meaning given to it in the Supplementary
Bond Terms Notice;
PAGE 2
FUNDING DATE means the date on which a Note will be issued (as
stipulated in the Funding Notice) and the date on which a
Funding Portion is, or is to be, advanced or regarded as
advanced to the Issuer under this agreement;
FUNDING NOTICE means a notice given, or to be given, under
clauses 4.1 and 4.2;
FUNDING PORTION means in relation to any Note, the principal
amount of that Note to be provided or outstanding at that time
(as the case may be);
GOVERNMENTAL AGENCY means any government or any governmental,
semi-governmental, administrative, fiscal or judicial body,
department, commission, authority, tribunal, agency or entity;
GST has the same meaning as in the A New Tax System (Goods and
Services Tax) Xxx 0000;
INTEREST AMOUNT means for any Payment Period all of the net
income derived from the investment of the net proceeds of the
Principal Outstanding for that Payment Period;
LENDING OFFICE means the office of the Note Holder set out on
page 1 of this agreement or such other office as notified by
the Note Holder under this agreement;
LIQUIDITY NOTES has the meaning given to it in the
Supplementary Bond Terms Notice;
MASTER TRUST DEED means the Master Trust Deed dated 4 July
1994 made between Perpetual Trustees Australia Limited and ME
Portfolio Management Limited, and providing for the
establishment of a series of trusts known collectively as the
Superannuation Members Home Loans Trusts, as amended from time
to time;
MATERIAL DOCUMENTS means:
(a) this agreement (including each Note); and
(b) the Security Trust Deed; and
(c) the Supplementary Bond Terms Notice.
XXXXX'X has the meaning given to it in the Master Trust Deed;
MORTGAGE has the meaning given to it in the Master Trust Deed;
NOTE means a note issued under Parts 2 and 4;
NOTE HOLDER means Perpetual Trustees Australia Limited or any
person entitled to be registered as a Note Holder in
accordance with this agreement;
OFFICER means:
(a) in relation to the Issuer and Note Holder, a
director, secretary or other person whose title
contains the word or words "manager" or "counsel" or
a person performing the functions of any of them; and
(b) in relation to the SF Manager and OF Manager, a
director or a secretary, or a person notified to be
an authorised officer of the relevant party.
PAGE 3
ORIGINATION FUND means Origination Fund No. 3 established
pursuant to the Master Trust Deed;
OUTSTANDING MONEYS means all debts and monetary liabilities of
the Issuer to the Note Holder under or in relation to any
Material Document irrespective of whether the debts or
liabilities:
(a) are present or future;
(b) are actual, prospective, contingent or otherwise;
(c) are at any time ascertained or unascertained;
(d) are owed or incurred by or on account of the Issuer
alone, or severally or jointly with any other person;
(e) are owed to or incurred for the account of the Note
Holder alone, or severally or jointly with any other
person;
(f) are owed or incurred as principal, interest, fees,
charges, taxes, duties or other imposts, damages
(whether for breach of contract or tort or incurred
on any other ground), losses, costs or expenses, or
on any other account; or
comprise any combination of the above, after:
(a) deducting the aggregate amount of any payments made
under clause 3(b); and
(b) adding the aggregate of any amounts recovered by or
otherwise paid to the Issuer where the original
non-payment of those amounts was a Payment Amount
Shortfall;
OUTSTANDING PRINCIPAL BALANCE in respect of a Mortgage has the
same meaning as in the Supplementary Bond Terms Notice;
OVERDUE RATE means on any date the rate percent per annum
calculated by the OF Manager which is the rate, expressed as a
percentage, derived from dividing the Interest Amount by the
average of the Principal Outstanding on each Banking Day
during the Payment Period immediately preceding the date the
Overdue Rate is calculated;
PAYMENT AMOUNT means an amount payable by the Issuer to the
counterparty to any Enhancement or Interest Hedge (as those
terms are defined in the Security Trust Deed) in respect of
any loss suffered by the counterparty as a consequence of the
termination before its due date of any arrangement to hedge or
otherwise manage the Issuer's interest rate exposure for any
Mortgage being an Asset of the Securitisation Fund where all
or part of the interest payable is subject to a fixed rate;
PAYMENT AMOUNT SHORTFALL means as the case requires:
(a) a Recovery Shortfall; and
(b) a Threshold Rate Shortfall;
PAYMENT DATE has the meaning given to it in the Supplementary
Bond Terms Notice;
PAYMENT PERIOD means the period from and including the last
Payment Date to but excluding the next Payment Date except
that the first Payment Period xxxx
XXXX 4
commence on the relevant Funding Date and the last Payment
Period will end on the Termination Date;
PERMITTED ENCUMBRANCE means:
(a) every lien created by operation of law securing an
obligation that is not yet due;
(b) every lien for the unpaid balance of purchase moneys
under an instalment contract entered into in the
ordinary course of business;
(c) every lien for the unpaid balance of moneys owing for
repairs; and
(d) an Encumbrance granted under a Transaction Document,
which affects or relates to any of the assets of the
Securitisation Fund;
POWER means any right, power, authority, discretion or remedy
conferred on the Note Holder or OF Manager, or a Receiver or
an Attorney by any Transaction Document or any applicable law;
PRINCIPAL OUTSTANDING means at any time the aggregate
principal amount of all outstanding Funding Portions at that
time after:
(a) deducting the aggregate amount of any payments made
under clause 3(b); and
(b) adding the aggregate of any amounts recovered by or
otherwise paid to the Issuer in respect of a Payment
Amount Shortfall;
RECOVERY SHORTFALL means an amount equal to the difference
between the Payment Amount and the amount recovered or
recoverable under or pursuant to the Mortgage in respect of
the Payment Amount;
REDRAW FUNDING FACILITY has the meaning given to it in the
Security Trust Deed;
REGISTER means the register of Note Holders maintained by the
Issuer;
S&P has the meaning given to it in the Master Trust Deed;
SAME DAY FUNDS means bank cheque or other immediately
available funds;
SECURITISATION FUND means the Securitisation Fund constituted
under the Master Trust Deed known as SMHL Global Fund No. 4;
SECURITY TRUST DEED means the Security Trust Deed (as amended
from time to time) in respect of the Securitisation Fund
between the Issuer, the SF Manager, Perpetual Trustee Company
Limited ABN 42 000 001 007 as security trustee and The Bank of
New York as note trustee;
SET DATE means in relation to the initial Payment Period, the
Funding Date, and in relation to each subsequent Payment
Period, the Payment Date at the commencement of that Payment
Period;
SUPPLEMENTARY BOND TERMS NOTICE means the Supplementary Bond
Terms Notice dated on or about the date of this agreement in
respect of the Securitisation Fund and providing terms of
issue for Class A Notes and Class B Notes;
TAX means:
(a) any tax (including goods and services tax), levy,
charge, impost, duty, fee, deduction, compulsory loan
or withholding; or
PAGE 5
(b) any income, stamp or transaction duty, tax or charge,
which is assessed, levied, imposed or collected by any
Governmental Agency and includes, but is not limited to, any
interest, fine, penalty, charge, fee or other amount imposed
on or in respect of any of the above;
TERMINATION DATE means, the first to occur of:
(a) the date on which the Total Outstanding Principal
Balance is zero or will be zero following any
payments made on the relevant Payment Date (as
defined under the Supplementary Bond Terms Notice);
and
(b) the date by which the SF Manager has received written
notification from each Designated Rating Agency (as
defined in the Master Trust Deed) that the provision
of the Facility and the subscription and issue of
Notes under the Facility (including any outstanding
Notes) is no longer necessary in order to maintain
the "AAA", "Aaa" and "AAA" rating of notes in the
Securitisation Fund known as the "Class A Notes" by
S&P, Xxxxx'x and Xxxxx Ratings respectively;
THRESHOLD RATE SHORTFALL means any shortfall arising under any
determination under clause 11(a) of the Supplementary Bond
Terms Notice;
TOTAL OUTSTANDING PRINCIPAL BALANCE has the meaning given to
it under the Supplementary Bond Terms Notice;
TRANSACTION DOCUMENT has the meaning given to it in the Master
Trust Deed and includes this agreement and any document or
agreement entered into or given under it (including Notes);
TRANSACTION PARTY means:
(a) the Issuer; or
(b) the SF Manager.
1.2 INTERPRETATION
In this agreement, headings and boldings are for convenience
only and do not affect the interpretation of this agreement
and, unless the context otherwise requires:
(a) words importing the singular include the plural and
vice versa;
(b) words importing a gender include any gender;
(c) other parts of speech and grammatical forms of a word
or phrase defined in this agreement have a
corresponding meaning;
(d) an expression importing a natural person includes any
company, partnership, joint venture, association,
corporation or other body corporate and any
Governmental Agency;
(e) a reference to any thing (including, but not limited
to, any right) includes a part of that thing;
(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;
PAGE 6
(g) a reference to a statute, regulation, proclamation,
ordinance or by-law includes all statutes,
regulations, proclamations, ordinances or by-laws
amending, consolidating or replacing it, and a
reference to a statute includes all regulations,
proclamations, ordinances and by-laws issued under
that statute;
(h) a reference to a document includes all amendments or
supplements to, or replacements or novations of, that
document;
(i) a reference to liquidation includes appointment of an
administrator, compromise, arrangement, merger,
amalgamation, reconstruction, winding up,
dissolution, assignment for the benefit of creditors,
scheme, composition or arrangement with creditors,
insolvency, bankruptcy, or a similar procedure or,
where applicable, changes in the constitution of any
partnership or person or death;
(j) a reference to a party to any document includes that
party's successors and permitted assigns;
(k) a reference to an agreement other than this agreement
includes an undertaking, deed, agreement or legally
enforceable arrangement or understanding whether or
not in writing;
(l) a reference to an asset includes all property of any
nature, including, but not limited to, a business,
and all rights, revenues and benefits;
(m) a reference to a document includes any agreement in
writing, or any certificate, notice, instrument or
other document of any kind;
(n) no provision of this agreement will be construed
adversely to a party solely on the ground that the
party was responsible for the preparation of this
agreement or that provision;
(o) a reference to the drawing, accepting, endorsing or
other dealing with or of a Xxxx refers to a drawing,
accepting, endorsing or dealing within the meaning of
the Bills of Exchange Xxx 0000;
(p) a reference to a body, other than a party to this
agreement (including, without limitation, an
institute, association or authority), whether
statutory or not:
(1) which ceases to exist; or
(2) whose powers or functions are transferred to
another body,
is a reference to the body which replaces it or which
substantially succeeds to its powers or functions;
and
(q) the Issuer or the Note Holder will only be considered
to have knowledge or awareness of, or notice of, a
thing, or grounds to believe any thing, by virtue of
the officers of the Issuer or the Note Holder having
day to day responsibility for the administration of
the Origination Fund or the Securitisation Fund (as
the case may be) having actual knowledge, actual
awareness or actual notice of that thing, or grounds
or reason to believe that thing (and similar
references will be interpreted in this way).
PAGE 7
1.3 BANKING DAY
Unless otherwise stipulated in this agreement, where the day
on or by which any thing is to be done is not a Banking Day,
that thing must be done on or by the succeeding Banking Day.
1.4 TRANSACTION DOCUMENT
The parties agree that this agreement and any document or
agreement entered into or given under it (including a Note) is
a "Transaction Document" for the purposes of the Master Trust
Deed.
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2 THE NOTES
2.1 APPLICATION FOR AND ISSUE OF NOTES
(a) The SF Manager may request that the Issuer issues a
Note to the Note Holder by:
(1) requesting a Note be issued from "SMHL
Global Fund No. 4";
(2) specifying the principal amount of the Note
required;
(3) specifying the proposed date of issue of the
Note; and
(4) providing to the Note Holder and the OF
Manager a Funding Notice (and a copy to the
Issuer) pursuant to clause 4.
(b) If the SF Manager has requested that the Issuer
issues a Note in accordance with clause 2.1(a) and
the OF Manager and Note Holder agree to subscribe for
the Note as requested by the SF Manager, the Issuer
must, on the terms of this agreement, issue the Note
to the Note Holder in consideration for the principal
amount provided that the OF Manager and Note Holder
have complied with clause 5.1.
(c) The parties agree that the terms and conditions
contained in this agreement, the Supplementary Bond
Terms Notice (to the extent applicable) and the
Security Trust Deed (to the extent applicable) govern
the issue and repayment of the Notes.
2.2 ACKNOWLEDGMENT OF INDEBTEDNESS
The Issuer acknowledges its indebtedness to the Note Holder in
respect of each Note issued under this agreement.
2.3 OBLIGATIONS UNDER NOTES
(a) The obligations of the Issuer under the Notes are
constituted by, and specified in, this agreement and
in the Conditions.
(b) Each Note is a separate debt of the Issuer.
(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.
PAGE 8
2.4 OWNERSHIP OF NOTES
(a) A Note may be transferred by the Note Holder to any
person in accordance with this agreement.
(b) The person whose name is registered as the Note
Holder of a Note in the Register will be treated by
the Issuer as the absolute owner of the Note.
2.5 REGISTER
The Issuer must:
(a) establish and maintain the Register;
(b) enter in the Register in respect of each Note:
(1) the principal amount and principal
outstanding in respect of each Note;
(2) its date of issue and date of redemption and
cancellation; and
(3) the date on which any person becomes, or
ceases to be, a Note Holder.
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3 PURPOSE
(a) Subject to clause 3(b), the Issuer must, and the SF Manager
must cause the Issuer to, keep the proceeds of a Funding
Portion invested in Authorised Investments:
(1) which are rated "AAA" or "A-1+" by S&P, "Prime-1" or
"Aaa" by Xxxxx'x and "AAA" or "F1+" by Fitch Ratings,
or such other rating as any Designated Rating Agency
may approve from time to time;
(2) which mature (except in the case of call deposits
with a Bank) not later than the day before the
Payment Date immediately after the day on which they
are made; and
(3) otherwise in accordance with the Master Trust Deed.
(b) The Issuer must and the SF Manager must cause the Issuer to,
apply funds invested under clause 3(a):
(1) to the extent of any Payment Amount Shortfall and
subject to clause 5.5(b)(3), towards Collections in
accordance with the Supplementary Bond Terms Notice;
and
(2) otherwise as required under clause 5 or clause 11.
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4 FUNDING PROCEDURES
4.1 DELIVERY OF FUNDING NOTICE
If the SF Manager determines that the Issuer requires a Note
to be issued, the SF Manager must deliver to the Note Holder
and the OF Manager a Funding Notice in accordance with this
clause 4.
PAGE 9
4.2 REQUIREMENTS FOR A FUNDING NOTICE
A Funding Notice:
(a) must be in writing in the form of, and specifying the
matters set out in, schedule 1;
(b) must be received by the Note Holder and the OF
Manager at least 2 Banking Days before the proposed
Funding Date (or such shorter period as the OF
Manager may agree in writing);
(c) must be signed by an Officer of the SF Manager and an
Officer of the Issuer;
(d) whether or not stated in the notice, constitutes a
representation and warranty by each of the Issuer and
the SF Manager that so far as it is aware (without
the need to make enquiry) each representation and
warranty set out in clause 7 and given by it is true,
correct and not misleading as if made at the date of
the Funding Notice and the Funding Date in respect of
the facts and circumstances then subsisting, but if
the representation and warranty constituted by this
clause 4.2(d) is not correct the Funding Notice must
contain a statement to that effect and must set out
full details of any exceptions and the reasons and
any remedial action taken or proposed. Any such
statement is without prejudice to the rights of the
Note Holder and OF Manager.
4.3 COPY OF THE FUNDING NOTICE TO BE PROVIDED TO THE ISSUER
A copy of each Funding Notice must be provided to the Issuer
at least 1 Banking Day before the proposed Funding Date
together with the Bond Issue Direction for the issue of the
Notes.
4.4 IRREVOCABILITY OF FUNDING NOTICE
The Note Holder or the OF Manager may, in its absolute
discretion, decide to decline to provide the requested funding
specified in the Funding Notice, in which case the OF Manager
must notify each of the Issuer and the SF Manager in writing.
Following agreement by the Note Holder and the OF Manager to
the issue of the relevant Note specified in the Funding
Notice, the Issuer is irrevocably committed to, and the SF
Manager is irrevocably committed to cause the Issuer to, issue
the relevant Note and to draw Funding Portions from the Note
Holder in accordance with the Funding Notice given to the OF
Manager and the Note Holder.
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5 LOAN FACILITY
5.1 PROVISION OF FUNDING PORTIONS
If the SF Manager gives a Funding Notice in accordance with
clause 4 and the OF Manager and the Note Holder agree to the
issue of the specified Note, then, subject to this agreement
(including, without limitation, clause 10), the Note Holder
must, and the OF Manager must cause the Note Holder to,
provide the relevant Funding Portion under the Facility as
payment for the relevant Note in
PAGE 10
Same Day Funds in Dollars not later than 12 noon (Melbourne
time) on the specified Funding Date and in accordance with
that Funding Notice.
5.2 REPAYMENT OF OUTSTANDING MONEYS
(a) If after having regard to clause 5.5, the SF Manager
determines that on any Banking Day the Principal
Outstanding is greater than the amount agreed from
time to time by the Manager and each Designated
Rating Agency the Issuer must, and the SF Manager
must cause the Issuer to, repay to the Note Holder so
much of the Principal Outstanding so that the
Principal Outstanding immediately after that
repayment will not cause the current rating of the
Class A Notes and the Class B Notes issued by the
Issuer to be downgraded or withdrawn by any
Designated Rating Agencies.
(b) The Issuer must, and the SF Manager must cause the
Issuer to, repay the Principal Outstanding, if any,
in full on the Termination Date.
(c) The Issuer must, and the SF Manager must cause the
Issuer to, pay or repay the balance of the
Outstanding Moneys in full to the Note Holder on the
Termination Date or on such other date on which the
Principal Outstanding is, or is required to be,
repaid in full.
(d) The Issuer is not obliged to make a repayment under
this clause 5.2 other than out of the funds invested
or available for investment under clause 3.
5.3 INTEREST
(a)
(1) On each Payment Date, the Issuer must, and
the SF Manager must cause the Issuer to, pay
to the Note Holder interest on the Payment
Period being an amount equal to the Interest
Amount.
(2) The Issuer is not obliged to pay interest
under clause 5.3(a)(1) other than out of the
Interest Amount.
(b) The Issuer and the SF Manager acknowledge that the
Interest Amount is not available to meet any payment
obligation of the Issuer other than its obligation to
pay interest under clauses 5.3(a) and 5.3(c).
(c) If on any Payment Date, the Interest Amount in
respect of the relevant Payment Period is not paid on
the whole amount of the Principal Outstanding:
(1) the Interest Amount shall accrue interest at
the Overdue Rate for the next Payment
Period;
(2) the Interest Amount and interest accrued
under paragraph (1) shall become payable on
the next Payment Date; and
(3) to the extent to which any unpaid Interest
Amount (including any interest accrued under
paragraph (1)) remains unpaid after that
next Payment Date it will again be subject
to paragraphs (1) and (2) for each
subsequent Payment Period and Payment Date
until it has been paid.
PAGE 11
(d) Interest must be calculated in arrears on daily
balances on the basis of a 365 day year and for the
actual number of days elapsed during the relevant
period.
5.4 ORDER OF REPAYMENT
(a) In making repayments under clause 5.2, the Issuer
must, and the SF Manager must cause the Issuer to,
apply the amount of the repayment to repay the
Principal Outstanding under the Notes in order of the
date of issue of the Notes so that the Notes issued
earlier in time are repaid first.
(b) The Note Holder must, and the OF Manager must cause
the Note Holder to, apply repayments in accordance
with clause 6.3(a).
(c) The OF Manager must advise the Issuer and the SF
Manager in writing of the Notes which have been
wholly or partly repaid, the amount of the repayment
and the Principal Outstanding under that Note.
5.5 ACKNOWLEDGMENTS
(a) The Issuer acknowledges that if an amount is paid out
of the Securitisation Fund as a consequence of a
Payment Amount Shortfall, and an amount referable to
that Payment Amount Shortfall is subsequently
recovered by or otherwise paid to the Issuer, such
amounts are to be available for repayment under
clause 5.
(b) Each of the parties acknowledges that:
(1) the Issuer will not be able to issue the
Class A Notes or the Class B Notes unless
and until a Funding Portion has been
provided and maintained under clause 5.1
such that the Principal Outstanding is not
less than 0.40% of the Outstanding Principal
Balance of the Loans secured by the
Mortgages comprised in the Assets of
Securitisation Fund on the issue date of the
notes;
(2) in order to maintain the assigned rating by
each Designated Rating Agency (which rating
confirmation by each Designated Rating
Agency must be in writing) of the Class A
Notes or the Class B Notes it may be
necessary to increase the amount of the
Principal Outstanding to an amount in excess
of 0.40% of the Outstanding Principal
Balance of the Loans secured by Mortgages
comprised in the Assets of Securitisation
Fund;
(3) the amount of the Principal Outstanding up
to an amount equal to 0.40% of the
Outstanding Principal Balance of the Loans
secured by Mortgages comprised in the Assets
of Securitisation Fund is only available in
respect of Payment Amount Shortfalls being
Recovery Shortfalls and any Principal
Outstanding in excess of 0.40% of the
Outstanding Principal Balance of the Loans
secured by Mortgages comprised in the Assets
of Securitisation Fund is only available in
respect of Payment Amount Shortfalls being
Threshold Rate Shortfalls; and
(4) if a Threshold Rate Shortfall exists and the
amount of the Funding Portion is not
increased as contemplated by clause
5.5(b)(2), the SF
PAGE 12
Manager must comply with clauses 12(a) and
(b) of the Supplementary Bond Terms Notice.
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6 PAYMENTS
6.1 MANNER OF PAYMENTS
All payments to the Note Holder under the Transaction
Documents must be made:
(a) in Same Day Funds;
(b) in Dollars;
(c) not later than 11:00 am (Melbourne time) on the due
date,
to the account of the Note Holder specified by the OF Manager
to the Issuer or in such other manner to an account of the
Note Holder as the OF Manager directs from time to time.
6.2 PAYMENTS ON A BANKING DAY
If a payment is due on a day which is not a Banking Day, the
due date for that payment is the next Banking Day and interest
must be adjusted accordingly.
6.3 APPROPRIATION OF PAYMENTS
(a) All payments made by the Issuer to the Note Holder
under this agreement may be appropriated as between
principal, interest and other amounts, as the OF
Manager in its absolute discretion determines or,
failing any determination, in the following order:
(1) firstly, towards reimbursements of all fees,
costs, expenses, charges, damages and
indemnity payments incurred or due and owing
by the Transaction Party under the Material
Documents;
(2) secondly, towards payment of interest due
and payable under the Material Documents;
and
(3) thirdly, towards repayment of the Principal
Outstanding.
(b) Any appropriation under clause 6.3(a) overrides any
appropriation made by the Issuer.
6.4 PAYMENTS IN GROSS
All payments which a Transaction Party is required to make
under any Material Document must be:
(a) without any set-off, counterclaim or condition; and
(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.
PAGE 13
6.5 AMOUNTS PAYABLE ON DEMAND
If any amount payable by a Transaction Party under any
Material Document is not expressed to be payable on a
specified date that amount is payable by the Transaction Party
on demand by the Note Holder or OF Manager.
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7 REPRESENTATIONS AND WARRANTIES
7.1 BY THE ISSUER
The Issuer hereby represents and warrants to the OF Manager
and Note Holder that:
(a) (DUE INCORPORATION): it is duly incorporated and has
the corporate power to own its property and to carry
on its business as is now being conducted;
(b) (CONSTITUTION): the execution delivery and
performance of this agreement and any Note does not
and will not violate its Constitution;
(c) (CORPORATE POWER): it has the power and has taken all
corporate and other action required to enter into
this agreement and each Note and to authorise the
execution and delivery of this agreement and each
Note and the performance of its obligations
thereunder;
(d) (FILINGS): it has filed all corporate notices and
effected all registrations with the Australian
Securities and Investments Commission or similar
office in the jurisdiction of incorporation and in
any other jurisdiction as required by law and all
such filings and registrations are current, complete
and accurate except that this representation and
warranty does not apply to the filing of an ASIC form
309 in relation to the creation of the Charge;
(e) (LEGALLY BINDING OBLIGATION): this agreement and each
Note constitutes or will constitute a valid, legally
binding and enforceable obligation of it in
accordance with its terms except as such
enforceability may be limited by any applicable
bankruptcy, insolvency, reorganisation, moratorium or
trust or other similar laws affecting creditors'
rights generally;
(f) (EXECUTION, DELIVERY AND PERFORMANCE): the execution,
delivery and performance of this agreement and each
Note by it does not violate any existing law or
regulation or any document or agreement to which it
is a party in either case in its capacity as trustee
of the Securitisation Fund or which is binding upon
it or any of its assets in its capacity as trustee of
the Securitisation Fund;
(g) (AUTHORISATION): all consents, licences, approvals
and authorisations of every Government Agency
required to be obtained by it in connection with the
execution and delivery of, and performance of its
obligations under, this agreement and any Note have
been obtained and are valid and subsisting;
(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;
PAGE 14
(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.
PAGE 15
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 10 in the case of the Issuer), comply with the
undertakings in this clause 8.
8.2 COMPLIANCE WITH COVENANTS
The Issuer must and the SF Manager must ensure that the Issuer
does:
(a) comply with all of its covenants and obligations
under the Security Trust Deed and Supplementary Bond
Terms Notice; and
(b) wherever it is required to obtain consent of the
Security Trustee (as defined in the Security Trust
Deed) under the Security Trust Deed also obtain the
prior written consent of the Note Holder and OF
Manager.
8.3 NOTIFY EVENTS OF DEFAULT On and from the Termination Date,
each of the SF Manager and the Issuer must immediately notify
all the other parties to this agreement in writing if it
becomes actually aware of the occurrence of any Event of
Default and must provide full and complete details in relation
thereto immediately upon becoming actually aware of such
details.
--------------------------------------------------------------------------------
9 EVENTS OF DEFAULT
9.1 OPERATION OF CLAUSE 9
Clauses 9.2 to 9.4 only have effect on and from the
Termination Date.
9.2 EFFECT OF EVENT OF DEFAULT
(a) Upon or at any time after the occurrence of an Event
of Default the Note Holder or the OF Manager may by
notice to the Issuer and the SF Manager declare that
the Outstanding Moneys are immediately due and
payable.
(b) The Issuer must and the SF Manager must cause the
Issuer to upon receipt of a notice under clause
9.2(a) immediately repay in full the Outstanding
Moneys to the Note Holder.
PAGE 16
9.3 ISSUER TO CONTINUE TO PERFORM
(a) If the Note Holder or OF Manager makes any
declaration under clause 9.2:
(1) the declaration does not affect or diminish
the duties and obligations of the Issuer or
the SF Manager under the Transaction
Documents; and
(2) each of the Issuer and the SF Manager must
continue to perform its obligations under
the Transaction Documents as if the
declaration had not been made, subject to
any directions that may be given by the Note
Holder or the OF Manager from time to time
under any Transaction Document.
(b) Clause 9.3(a) does not affect the obligations of the
Issuer or the SF Manager under clause 9.2.
9.4 ENFORCEMENT
(a) The Material Documents may be enforced without notice
to or consent by the Issuer or SF Manager or any
other person even if the Note Holder accepts any part
of the Outstanding Moneys after an Event of Default
or there has been any other Event of Default.
(b) Neither the Note Holder nor the OF Manager is liable
to any Transaction Party for any loss or damage a
Transaction Party may suffer, incur or be liable for
arising out of or in connection with the Note Holder
or OF Manager exercising any Power under any Material
Document.
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10 TRUSTEE LIMITATION OF LIABILITY PROTECTION
10.1 LIMITATION OF LIABILITY - ISSUER
(a) The Issuer enters into this agreement only in its
capacity as trustee of the Securitisation Fund and no
other capacity. A liability of the Issuer arising
under or in connection with this agreement is limited
to and can be enforced against the Issuer only to the
extent to which it can be satisfied out of property
of the Securitisation Fund out of which the Issuer is
actually indemnified for the liability. This
limitation of the Issuer's liability applies despite
any other provision of this agreement and extends to
all liabilities and obligations of the Issuer in any
way connected with any representation, warranty,
conduct, omission, agreement or transaction related
to this agreement.
(b) The parties other than the Issuer may not xxx the
Issuer in any capacity other than as trustee of the
Securitisation Fund or seek the appointment of a
receiver (except in relation to property of the
Securitisation Fund), a liquidator, an administrator
or any similar person to the Issuer or prove in any
liquidation, administration or arrangement of or
affecting the Issuer (except in relation to property
of the Securitisation Fund).
(c) The provisions of this clause 10.1 shall not apply to
any obligation or liability of the Issuer to the
extent that it is not satisfied because under the
Master Trust Deed establishing the Securitisation
Fund or by operation of
PAGE 17
law there is a reduction in the extent of the
Issuer's indemnification out of the assets of the
Securitisation Fund, as a result of the Issuer's
fraud, negligence or wilful default.
(d) It is acknowledged that the SF Manager is responsible
under the Master Trust Deed establishing the
Securitisation Fund for performing a variety of
obligations relating to the Securitisation Fund,
including under this agreement. No act or omission of
the Issuer (including any related failure to satisfy
its obligations or breach of representation or
warranty under this agreement) will be considered
fraud, negligence or wilful default of the Issuer for
the purposes of paragraph (c) of this clause 10.1 to
the extent to which the act or omission was caused or
contributed to by any failure by the SF Manager or
any other person to fulfil its obligations relating
to the Securitisation Fund or by any other act or
omission of the SF Manager or any other person.
(e) No attorney, agent, receiver or receiver and manager
appointed in accordance with this agreement has
authority to act on behalf of the Trustee in a way
which exposes the Issuer to any personal liability
and no act or omission of any such person will be
considered fraud, negligence or wilful default of the
Issuer for the purposes of paragraph (c) of this
clause 10.1.
(f) The Issuer is not obliged to do or refrain from doing
anything under this agreement (including incur any
liability) unless the Issuer's liability is limited
in the same manner as set out in paragraphs (a) to
(c) of this clause.
10.2 LIMITATION OF LIABILITY - NOTE HOLDER
(a) The Note Holder enters into this agreement only in
its capacity as trustee of the Origination Fund and
no other capacity. A liability arising under or in
connection with this agreement is limited to and can
be enforced against the Note Holder only to the
extent to which it can be satisfied out of property
of the Origination Fund out of which the Note Holder
is actually indemnified for the liability. This
limitation of the Note Holder's liability applies
despite any other provision of this agreement and
extends to all liabilities and obligations of the
Note Holder in any way connected with any
representation, warranty, conduct, omission,
agreement or transaction related to this agreement.
(b) The parties other than the Note Holder may not xxx
the Note Holder in any capacity other than as trustee
of the Origination Fund or seek the appointment of a
receiver (except in relation to property of the
Origination Fund), a liquidator, an administrator or
any similar person to the Note Holder or prove in any
liquidation, administration or arrangement of or
affecting the Note Holder (except in relation to
property of the Origination Fund).
(c) The provisions of this clause 10.2 shall not apply to
any obligation or liability of the Note Holder to the
extent that it is not satisfied because under the
trust deed establishing the Origination Fund or by
operation of law there is a reduction in the extent
of the Note Holder's indemnification out of the
assets of the Origination Fund, as a result of the
Note Holder's fraud, negligence or wilful default.
PAGE 18
(d) It is acknowledged that the OF Manager is responsible
under the trust deed establishing the Origination
Fund for performing a variety of obligations relating
to the Origination Fund, including under this
agreement. No act or omission of the Note Holder
(including any related failure to satisfy its
obligations or breach of representation or warranty
under this agreement) will be considered fraud,
negligence or wilful default of the Note Holder for
the purposes of paragraph (c) of this clause 10.2 to
the extent to which the act or omission was caused or
contributed to by any failure by the OF Manager or
any other person to fulfil its obligations relating
to the Origination Fund or by any other act or
omission of the OF Manager or any other person.
(e) No attorney, agent, receiver or receiver and manager
appointed in accordance with this agreement has
authority to act on behalf of the Trustee in a way
which exposes the Note Holder to any personal
liability and no act or omission of any such person
will be considered fraud, negligence or wilful
default of the Note Holder for the purposes of
paragraph (c) of this clause 10.2.
(f) The Note Holder is not obliged to do or refrain from
doing anything under this agreement (including incur
any liability) unless the Note Holder's liability is
limited in the same manner as set out in paragraphs
(a) to (c) of this clause.
10.3 WILFUL DEFAULT OF THE ISSUER AND THE NOTE HOLDER
For the purposes of this agreement, the expression "wilful
default":
(a) in relation to the Issuer and the Note Holder, means
a wilful default of this agreement by the Issuer or
the Note Holder, as the case may be:
(1) other than a default which:
(A) arises out of a breach of a
Transaction Document by a person
other than the Issuer, Note Holder
or any person referred to in
paragraph (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
(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,
PAGE 19
but not of the agents or delegates of the Issuer or
Note Holder, unless the Issuer or the Note Holder is
liable for the acts or omissions of such other person
under the terms of this agreement.
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11 INDEMNITIES
11.1 GENERAL INDEMNITY
(a) The Issuer, to the extent it is permitted or
contemplated under the terms of the Master Trust
Deed, indemnifies on a full indemnity basis
(including legal costs and expenses charged at the
usual commercial rates of the relevant legal services
provider) and out of the property of the
Securitisation Fund the Note Holder and OF Manager
against any claim, action, damage, loss, liability,
cost, charge, expense, outgoing or payment which the
Note Holder or OF Manager, as the case may be, or an
Attorney pays, suffers, incurs or is liable for, in
respect of any of the following:
(1) a Funding Portion required by a Funding
Notice, not being made for any reason
including, but excluding any default by the
Note Holder or OF Manager, as the case may
be;
(2) any repayment or prepayment of all or part
of a Funding Portion being made on a date
other than the relevant Payment Date.
(b) Without limitation to the indemnity contained in
clause 11.1(a), that indemnity includes the amount
determined by the Note Holder or OF Manager, as the
case may be, as being incurred by reason of the
liquidation or re-employment of deposits or other
funds acquired or contracted for by the Note Holder
or OF Manager, as the case may be to fund or maintain
the Principal Outstanding or the relevant Funding
Portion and includes, but is not limited to, loss of
margin.
11.2 CONTINUING INDEMNITIES AND EVIDENCE OF LOSS
(a) Each indemnity of the Issuer contained in this
agreement is a continuing obligation of the Issuer,
despite:
(1) any settlement of account; or
(2) the occurrence of any other thing,
and remains in full force and effect until:
(3) all moneys owing, contingently or otherwise,
under any of the Material Documents have
been paid in full; and
(4) the Outstanding Moneys are fully and finally
repaid.
(b) Each indemnity of the Issuer contained in this
agreement is an additional, separate and independent
obligation of the Issuer and no one indemnity limits
the generality of any other indemnity.
(c) Each indemnity of the Issuer contained in this
agreement survives the termination of any Transaction
Document.
(d) A certificate under the hand of an Officer of the OF
Manager detailing the amount of any damage, loss,
liability, cost, charge, expense, outgoing or
PAGE 20
payment covered by any indemnity in this agreement is
sufficient evidence unless the contrary is proved.
11.3 FUNDS AVAILABLE FOR INDEMNITY
The obligations of the Issuer under this clause 11 shall be
payable solely to the extent of funds invested or available
for investment under clause 3.
11.4 NEGLIGENCE, WILFUL DEFAULT OR BREACH OF LAW
The indemnities in this clause 11 do not extend to any
liability, loss, cost, charge or expense that is finally and
judicially determined to result from any negligence, wilful
default or breach of law by the other parties to this
agreement.
11.5 NOTIFICATION FROM NOTE HOLDER OR OF MANAGER
If the Note Holder or the OF Manager receives written notice
of any act, matter or thing which may give rise to a
liability, loss, cost, charge or expense in relation to which
the Issuer would be required to indemnify it under this clause
11, the Note Holder or the OF Manager (as the case may be)
will notify the Issuer of that act, matter or thing giving
such details as it is practicable to give as soon as it is
reasonably practicable and in any event within 5 Banking Days
of it coming to its attention, provided that failure to do so
will not result in any loss or reduction in the indemnity
contained in this clause 11 unless the Issuer has been
prejudiced in any material respect by such failure.
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12 TAX, COSTS AND EXPENSES
12.1 TAX
(a) The Issuer must and the SF Manager must cause the
Issuer to pay any Tax, other than an Excluded Tax in
respect of the Securitisation Fund or a Tax referred
to in clause 12.3, in respect of the execution,
delivery, performance, release, discharge, amendment,
enforcement or attempted enforcement or otherwise in
respect of any of the following:
(1) any Material Document;
(2) any agreement or document entered into or
signed under any Material Document; and
(3) any transaction contemplated under any
Material Document or any agreement or
document described in clause 12.1(a)(2).
(b) The Issuer must and the SF Manager must cause the
Issuer to pay any fine, penalty or other cost in
respect of a failure to pay any Tax described in
clause 12.1(a) except to the extent that the fine,
penalty or other cost is caused by the Note Holder's
failure to lodge money received from the Issuer
before the due date for lodgement.
(c) The Issuer indemnifies out of the property of the
Securitisation Fund the Note Holder against any
amount payable under clause 12.1(a) or 12.1(b) or
both.
PAGE 21
12.2 COSTS AND EXPENSES
The Issuer must, and the SF Manager must cause the Issuer to,
pay all costs and expenses of the Note Holder and the OF
Manager and any employee, Officer, agent or contractor of the
Note Holder and the OF Manager in relation to:
(a) the negotiation, preparation, execution, delivery,
stamping, registration, completion, variation and
discharge of any Material Document or any agreement
or document described in clause 12.1(a);
(b) the enforcement, protection or waiver, or attempted
enforcement or protection, of any rights under any
Material Document or any agreement or document
described in clause 12.1(a);
(c) the consent or approval of the Note Holder or OF
Manager given under any Material Document or any
agreement or document described in clause 12.1(a);
and
(d) any enquiry by any Governmental Agency involving a
Transaction Party,
including, but not limited to, any administration costs of the
Note Holder or the OF Manager, as the case may be, in
connection with the matters referred to in clause 12.2(b) and
(d) and any legal costs and expenses (charged at the usual
commercial rates of the relevant legal services provider) and
any professional consultant's fees for any of the above on a
full indemnity basis.
12.3 GOODS AND SERVICES TAX
(a) Subject to clause 12.3(b), all amounts referred to in
this Agreement which are relevant in determining a
payment to be made by one party to another are
exclusive of GST unless specifically indicated
otherwise.
(b) If a party to this Agreement is entitled to be indemnified or
reimbursed for any cost or expense incurred by that party,
then the indemnity or reimbursement will be calculated by
reference to the GST-exclusive amount of that cost or expense,
increased by an amount equal to that part of the cost or
expense for which the party or its representative member is
not entitled to an input tax credit but would be entitled if
that entity was entitled to a full input tax credit. For the
avoidance of doubt, the amount calculated under this clause
12.3(b) is a GST-exclusive amount.
(c) If GST is levied or imposed on or in respect of any supply
made under or in connection with this Agreement for which the
consideration is a monetary payment, then the consideration
provided for that supply is 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
PAGE 22
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.
--------------------------------------------------------------------------------
13 INTEREST ON OVERDUE AMOUNTS
13.1 PAYMENT OF INTEREST
The Issuer must, and the SF Manager must cause the Issuer to,
pay interest on:
(a) any of the Outstanding Moneys due and payable, but
unpaid; and
(b) on any interest payable but unpaid in accordance with
clause 5.
13.2 ACCRUAL OF INTEREST
The interest payable under this clause 13:
(a) accrues from day to day from and including the due
date for payment up to the actual date of payment,
before and, as an additional and independent
obligation, after any judgment or other thing into
which the liability to pay the Outstanding Moneys
becomes merged; and
(b) may be capitalised by the Note Holder on any Payment
Date.
13.3 RATE OF INTEREST
The rate of interest payable under this clause 13 on any part
of the Outstanding Moneys is the higher of:
(a) the Overdue Rate; and
(b) the rate fixed or payable under a judgment or other
thing referred to in clause 13.2(a).
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14 ASSIGNMENT
14.1 ASSIGNMENT BY TRANSACTION PARTY
A Transaction Party must not transfer or assign any of its
rights or obligations under any Material Document without the
prior written consent of the OF Manager, the Note Holder and
each Designated Rating Agency.
14.2 ASSIGNMENT BY NOTE HOLDER
Neither the Note Holder nor the OF Manager may assign any of
its rights or transfer by novation any of its rights and
obligations under this agreement or any Note without the prior
written consent of the other parties and a prior written
notice of such assignment been given to each Designated Rating
Agency. Any such assignment must contain an acknowledgment
that the assignee is bound by the provisions of this
agreement.
PAGE 23
14.3 ASSIST TRANSFER OR ASSIGNMENT
At the request of the Note Holder or OF Manager, the Issuer
and the SF Manager must do any thing including, but not
limited to, executing any documents or amending any Material
Document, to effect any transfer or assignment under this
clause 14.
14.4 PARTICIPATION PERMITTED
The Note Holder and OF Manager may grant by way of
sub-participation (being a right to share in the financial
effects of this agreement, without any rights against the
Issuer) all or part of the Note Holder's or OF Manager's, as
the case may be, rights and benefits under this agreement to
any other person without having to obtain the consent of or to
notify the Issuer or the SF Manager.
14.5 LENDING OFFICE
(a) The Note Holder may change its Lending Office at any
time.
(b) The Note Holder must promptly notify the Issuer and
the SF Manager of any such change.
14.6 DISCLOSURE
Any party may disclose to a proposed assignee, transferee or
sub-participant any information relating to any other party or
the Transaction Documents whether or not confidential and
whether or not the disclosure would be in breach of any law or
of any duty owed to that other party.
14.7 NO INCREASE IN COSTS
If the Note Holder or OF Manager assigns or transfers any of
its rights or obligations under any Material Document or
changes its Lending Office the Issuer is not required to pay
any net increase in the aggregate amount of costs, Taxes, fees
or charges which:
(a) are a direct consequence of the transfer or
assignment or change of Lending Office; and
(b) the Note Holder or OF Manager as the case may be, or
its transferee or assignee was aware of or ought
reasonably to have been aware of, at the time of the
transfer or assignment or change of Lending Office.
--------------------------------------------------------------------------------
15 GENERAL
15.1 CONFIDENTIAL INFORMATION
The Note Holder and OF Manager may, for the purpose of
exercising any Power, disclose to any person any documents or
records of, or information about, any Transaction Document, or
the assets, business or affairs of any Transaction Party,
whether or not confidential and whether or not the disclosure
would be in breach of any law or of any duty owed to any
Transaction Party.
PAGE 24
15.2 PERFORMANCE BY NOTE HOLDER OF OBLIGATIONS
If a Transaction Party defaults in fully and punctually
performing any obligation contained or implied in any
Transaction Document, the Note Holder and OF Manager may,
without prejudice to any Power do all things necessary or
desirable, in the opinion of the Note Holder or OF Manager, as
the case may be, to make good or attempt to make good that
default to the satisfaction of the Note Holder or OF Manager,
as the case may be.
15.3 TRANSACTION PARTY TO BEAR COST
Without prejudice to clause 10, any thing which must be done
by a Transaction Party under any Material Document, whether or
not at the request of the Note Holder or OF Manager, must be
done at the cost of the Transaction Party.
15.4 NOTICES
(a) Any notice or other communication including, but not
limited to, any request, demand, consent or approval,
to or by a party to any Material Document:
(1) must be in legible writing and in English
addressed as shown below (or if sent by
facsimile, to the facsimile numbers below)
and marked to the attention of the
following:
(A) if to the Note Holder:
Address: Xxxxx 0
0 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XXX, 0000
Attention: Manager - Securitisation
Facsimile: (00) 0000 0000; and
(B) if to the Issuer:
Address: Xxxxx 0
0 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XXX, 0000
Attention: Manager - Securitisation
Facsimile: (00) 0000 0000;
(C) if to the SF Manager:,
Address: Xxxxx 00,
000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx 0000
Attention: Funding Manager
Facsimile: (00) 0000 0000; and
PAGE 25
(D) if to the OF Manager:
Address: Xxxxx 00,
000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx 0000
Attention: Funding Manager
Facsimile: (00) 0000 0000;
or as specified to the sender by any party
by notice;
(2) where the sender is a company, must be
signed by an Officer or under the common
seal of the sender;
(3) is regarded as being given by the sender and
received by the addressee:
(A) if by delivery in person, when
delivered to the addressee;
(B) if by post, on delivery to the
addressee; or
(C) if by facsimile transmission,
whether or not legibly received,
when transmitted to the addressee,
but if the delivery or receipt is on a day
which is not a Banking Day or is after 4.00
pm (addressee's time) it is regarded as
received at 9.00 am on the following Banking
Day;
(4) can be relied upon by the addressee and the
addressee is not liable to any other person
for any consequences of that reliance if the
addressee believes it to be genuine, correct
and authorised by the sender; and
(5) if to the Note Holder must be copied to the
OF Manager and if to the Issuer must be
copied to the SF Manager.
(b) A facsimile transmission is regarded as legible
unless the addressee telephones the sender within 2
hours after the transmission is received or regarded
as received under clause 15.4(a)(3) and informs the
sender that it is not legible.
(c) In this clause 15.4, a reference to an addressee
includes a reference to an addressee's Officers,
agents or employees.
15.5 GOVERNING LAW AND JURISDICTION
(a) This agreement is governed by the laws of New South
Wales.
(b) The Issuer and the SF Manager irrevocably submit to
the non-exclusive jurisdiction of the courts of New
South Wales.
15.6 PROHIBITION AND ENFORCEABILITY
(a) Any provision of, or the application of any provision
of, any Material Document or any Power which is
prohibited in any jurisdiction is, in that
jurisdiction, ineffective only to the extent of that
prohibition.
(b) Any provision of, or the application of any provision
of, any Material Document which is void, illegal or
unenforceable in any jurisdiction does not affect the
validity, legality or enforceability of that
provision in any
PAGE 26
other jurisdiction or of the remaining provisions in
that or any other jurisdiction.
15.7 WAIVERS
(a) Waiver of any right arising from a breach of this
agreement or of any Power arising upon default under
this agreement must be in writing and signed by the
party granting the waiver.
(b) A failure or delay in exercise, or partial exercise,
of:
(1) a right arising from a breach of this
agreement; or
(2) a Power created or arising upon default
under this agreement,
does not result in a waiver of that right or Power.
(c) A party is not entitled to rely on a delay in the
exercise or non-exercise of a right or Power arising
from a breach of this agreement or on a default under
this agreement as constituting a waiver of that right
or Power.
(d) A party may not rely on any conduct of another party
as a defence to exercise of a right or Power by that
other party.
(e) This clause may not itself be waived except by
writing.
15.8 VARIATION
A variation of any term of this agreement must be in writing
and signed by the parties. No variation may be made if it will
cause the current rating of any bonds issued by the Issuer to
be downgraded or withdrawn by any Designated Rating Agency.
15.9 CUMULATIVE RIGHTS
The Powers are cumulative and do not exclude any other right,
power, authority, discretion or remedy of the Note Holder or
OF Manager.
15.10 ATTORNEYS
Each of the Attorneys executing this agreement states that the
Attorney has no notice of the revocation of the power of
attorney appointing that Attorney.
15.11 BINDING OBLIGATIONS
Each party to this agreement acknowledges that the obligations
expressed in this agreement are binding upon it.
15.12 WINDING UP OF SECURITISATION FUND
Prior to the Termination Date, neither the Note Holder nor the
OF Manager may seek to terminate or wind up the Securitisation
Fund as a consequence of any breach of this agreement or any
Note by the Issuer on the SF Manager.
15.13 TERMINATION
This agreement can only be terminated on or after the
Termination Date.
PAGE 27
--------------------------------------------------------------------------------
SCHEDULE 1 - FUNDING NOTICE
(Clause 4.2 - Funding Notice)
To: Perpetual Trustees Australia Limited in its capacity as trustee of the
Origination Fund ("Note Holder")
ME Portfolio Management Limited ("OF Manager")
ATTENTION: MANAGER - SECURITISATION
--------------------------------------------------------------------------------
We refer to the agreement dated [##] 2003 ("Agreement"). Pursuant to clause 4 of
the Agreement:
(a) we give you notice that we wish to request the Issuer to issue to the
Note Holder a Note pursuant to the Agreement on ............... 2003.
("Funding Date");
(b) the aggregate principal amount of the Note is: $........;
(c) we request that the proceeds be remitted to account number ...........
at ...................; /[INSERT ALTERNATIVE INSTRUCTIONS]
(d) The Issuer represents and warrants that:
(1) [(except as disclosed in paragraph (d)(2))] each
representation and warranty given by it in the Agreement is to
the best of its knowledge, true, correct and not misleading as
though it had been made at the date of this Funding Notice and
the Funding Date specified above in respect of the facts and
circumstances then subsisting;[ AND]
(2) details of the exceptions to paragraph (d)(1) are as follows:
..................., and the Issuer [has taken/proposes] the
following remedial action ......................];
(e) The SF Manager represents and warrants that:
(1) [(except as disclosed in paragraph (e)(2))] each
representation and warranty given by it in the Agreement is to
the best of its knowledge, true, correct and not misleading as
though it had been made at the date of this Funding Notice and
the Funding Date specified above in respect of the facts and
circumstances then subsisting;[ AND]
(2) details of the exceptions to paragraph (e)(1) are as follows:
..................., and the SF Manager [has taken/proposes]
the following remedial action ......................];
PAGE 28
Dated:
SIGNED for and on behalf of
ME PORTFOLIO MANAGEMENT LIMITED
------------------------------------------------
Officer's signature
------------------------------------------------
Name (please print)
SIGNED for and on behalf of
PERPETUAL TRUSTEES AUSTRALIA LIMITED
------------------------------------------------
Officer's signature
------------------------------------------------
Name (please print)
PAGE 29
--------------------------------------------------------------------------------
SCHEDULE 2 - CONDITIONS
Payment Funding Facility SMHL Global Fund No. 4
PERPETUAL TRUSTEES AUSTRALIA LIMITED
(ABN 86 000 000 000)
IN ITS CAPACITY AS TRUSTEE OF THE SMHL GLOBAL FUND NO. 4
of Xxxxx 0, 00 Xxxxxx Xxxxxx, Xxxxxx, XXX, 0000
("ISSUER")
whose office for the purposes of payment is at Xxxxx 0, 0 Xxxxxxxxxxx Xxxxxx,
Xxxxxx or such other address as the Issuer may notify to the Note Holder from
time to time.
1 NOTE
(a) The terms and conditions of the issue of this Note and repayment are
constituted by this Note and the Payment Funding Facility - Agreement
for Issue and Repayment of Notes dated [# #] 2003 between the Issuer,
the Note Holder, ME Portfolio Management Limited (ABN 79 005 964 134)
of Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx, in its capacity
as manager of the XXXX Xxxxxx Xxxx Xx. 0 ("XX Xxxxxxx") and ME
Portfolio Management LIMITED (ABN 79 005 964 134) of Xxxxx 00, 000
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx, in its capacity as manager of the
Superannuation Members' Home Loans Origination Fund No 3 ("OF Manager")
("Agreement"). Terms defined in the Agreement have the same meaning
when used in these Conditions.
(b) Subject to clause 3, the Issuer promises to repay the principal amount
in accordance with the Agreement.
(c) This Note may only be assigned or transferred with the prior written
consent of the Issuer and subject to and in accordance with the
Agreement.
2 DERIVATION OF PAYMENT
The parties acknowledge that the payments to be made by the Issuer
under this Note are derived by it from the receipts from a "mortgage"
or "pool of mortgages", as those terms are defined in section 3 of the
Duties Xxx 0000 (Vic).
3 EXTENT OF LIABILITY OF ISSUER
(a) The Issuer issues this Note only in its capacity as trustee of the
Securitisation Fund and no other capacity. A liability of the Issuer
arising under or in connection with this Note or the Agreement is
limited to and can be enforced against the Issuer only to the extent to
which it can be satisfied out of property of the Securitisation Fund
out of which the Issuer is actually indemnified for the liability. This
limitation of the Issuer's liability applies despite any other
provision of this Note or the Agreement and extends to all liabilities
and obligations of the Issuer in any way connected with any
representation, warranty, conduct, omission, agreement or transaction
related to this Note or the Agreement.
(b) The parties other than the Issuer may not xxx the Issuer in any
capacity other than as trustee of the Securitisation Fund or seek the
appointment of a receiver (except in relation to property of the
Securitisation Fund), a liquidator, an administrator or any similar
PAGE 30
person to the Issuer or prove in any liquidation, administration or
arrangement of or affecting the Issuer (except in relation to property
of the Securitisation Fund).
(c) The provisions of this clause 3 shall not apply to any obligation or
liability of the Issuer to the extent that it is not satisfied because
under the Master Trust Deed establishing the Securitisation Fund or by
operation of law there is a reduction in the extent of the Issuer's
indemnification out of the assets of the Securitisation Fund Issuer, as
a result of the Issuer's fraud, negligence or wilful default.
(d) It is acknowledged that the SF Manager is responsible under the Master
Trust Deed establishing the Securitisation Fund for performing a
variety of obligations relating to the Securitisation Fund, including
under this Note and the Agreement. No act or omission of the Issuer
(including any related failure to satisfy its obligations or breach of
representation or warranty under this Note or the Agreement ) will be
considered fraud, negligence or wilful default of the Issuer for the
purposes of paragraph (c) of this clause 3 to the extent to which the
act or omission was caused or contributed to by any failure by the SF
Manager or any other person to fulfil its obligations relating to the
Securitisation Fund or by any other act or omission of the SF Manager
or any other person.
(e) No attorney, agent, receiver or receiver and manager appointed in
accordance with this Note or the Agreement has authority to act on
behalf of the Issuer in a way which exposes the Issuer to any personal
liability and no act or omission of any such person will be considered
fraud, negligence or wilful default of the Issuer for the purposes of
paragraph (c) of this clause 3.
(f) The Issuer is not obliged to do or refrain from doing anything under
this Note or the Agreement (including incur any liability) unless the
Issuer's liability is limited in the same manner as set out in
paragraphs (a) to (c) of this clause 3.
4 EXTENT OF LIABILITY OF NOTE HOLDER
(a) The Note Holder enters into this Note only in its capacity as trustee
of the Origination Fund and no other capacity. A liability arising
under or in connection with this Note or the Agreement is limited to
and can be enforced against the Note Holder only to the extent to which
it can be satisfied out of property of the Origination Fund out of
which the Note Holder is actually indemnified for the liability. This
limitation of the Note Holder's liability applies despite any other
provision of this Note or the Agreement and extends to all liabilities
and obligations of the Note Holder in any way connected with any
representation, warranty, conduct, omission, agreement or transaction
related to this Note or the Agreement.
(b) The parties other than the Note Holder may not xxx the Note Holder in
any capacity other than as trustee of the Origination Fund or seek the
appointment of a receiver (except in relation to property of the
Origination Fund), a liquidator, an administrator or any similar person
to the Note Holder or prove in any liquidation, administration or
arrangement of or affecting the Note Holder (except in relation to
property of the Origination Fund).
(c) The provisions of this clause 4 shall not apply to any obligation or
liability of the Note Holder to the extent that it is not satisfied
because under the trust deed establishing the Origination Fund or by
operation of law there is a reduction in the extent of the Note
Holder's indemnification out of the assets of the Origination Fund, as
a result of the Note Holder's fraud, negligence or wilful default.
(d) It is acknowledged that the OF Manager is responsible under the trust
deed establishing the Origination Fund for performing a variety of
obligations relating to the Origination Fund, including under this Note
and the Agreement. No act or omission of the Note
PAGE 31
Holder (including any related failure to satisfy its obligations or
breach of representation or warranty under this Note or the Agreement)
will be considered fraud, negligence or wilful default of the Note
Holder for the purposes of paragraph (c) of this clause 4 to the extent
to which the act or omission was caused or contributed to by any
failure by the OF Manager or any other person to fulfil its obligations
relating to the Origination Fund or by any other act or omission of the
OF Manager or any other person.
(e) No attorney, agent, receiver or receiver and manager appointed in
accordance with this Note or the Agreement has authority to act on
behalf of the Note Holder in a way which exposes the Note Holder to any
personal liability and no act or omission of any such person will be
considered fraud, negligence or wilful default of the Note Holder for
the purposes of paragraph (c) of this clause 4.
(f) The Note Holder is not obliged to refrain from doing anything under
this Note or the Agreement (including incur any liability) unless the
Note Holder's liability is limited in the same manner as set out in
paragraphs (a) to (c) of this clause 4.
PAGE 32
EXECUTED AS AN AGREEMENT:
SIGNED for
PERPETUAL TRUSTEES AUSTRALIA LIMITED in its
capacity as trustee of SMHL Global Fund No.
4 by its attorney under a Power of Attorney
dated and who declares that he has not
received any notice of the revocation of
such Power of Attorney in the presence of:
---------------------------------------- ------------------------------------
Witness Attorney
---------------------------------------- ------------------------------------
Name (please print) Name (please print)
SIGNED for
PERPETUAL TRUSTEES AUSTRALIA LIMITED
in its capacity as trustee of Superannuation
Members' Home Loans Origination Fund No. 3
by its attorney under a Power of Attorney
dated and who declares that he has not
received any notice of the revocation of
such Power of Attorney in the presence of:
---------------------------------------- ------------------------------------
Witness Attorney
---------------------------------------- ------------------------------------
Name (please print) Name (please print)
PAGE 33
SIGNED for
ME PORTFOLIO MANAGEMENT LIMITED
in its capacity as manager of SMHL Global
Fund No. 4 by its attorney under a Power of
Attorney dated and who declares that he has
not received any notice of the revocation of
such Power of Attorney in the presence of:
---------------------------------------- ------------------------------------
Witness Attorney
---------------------------------------- ------------------------------------
Name (please print) Name (please print)
SIGNED for
ME PORTFOLIO MANAGEMENT LIMITED
in its capacity as manager of Superannuation
Members' Home Loans Origination Fund No. 3
by its attorney under a Power of Attorney
dated and who declares that he has not
received any notice of the revocation of
such Power of Attorney in the presence of:
---------------------------------------- ------------------------------------
Witness Attorney
---------------------------------------- ------------------------------------
Name (please print) Name (please print)
