REDRAW FUNDING FACILITY
AGREEMENT FOR THE ISSUE AND R
EPAYMENT OF NOTES
SMHL GLOBAL FUND NO. 4
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
[XXXXXXXX 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 PJSR: TEL: 25E
TABLE OF CONTENTS
Clause Page
1 DEFINITIONS AND INTERPRETATION 2
1.1 Definitions 2
1.2 Interpretation 5
1.3 Business Day 7
1.4 Transaction Document 7
2 THE NOTES 7
2.1 Application for and Issue of Notes 7
2.2 Acknowledgment of Indebtedness 8
2.3 Obligations under Notes 8
2.4 Ownership of Notes 8
2.5 Register 8
3 REDRAW FACILITIES 8
3.1 Purpose 8
3.2 Loan Redraws 9
4 FUNDING PROCEDURES 9
4.1 Delivery of Funding Notice 9
4.2 Requirements for a Funding Notice 9
4.3 Delivery of Facility Provider Funding Notice 9
4.4 Requirements for a Facility Provider Funding Notice 9
4.5 Copy of the Note 10
4.6 Irrevocability of Funding Notice 10
4.7 Notification of Funding Rate 10
5 LOAN FACILITY 10
5.1 Provision of Funding Portions 10
5.2 Repayment 11
5.3 Repayment of Outstanding Moneys 11
5.4 Interest 11
5.5 Order of Repayment 12
6 PAYMENTS 12
6.1 Manner of payments 12
6.2 Payments on a Business Day 12
6.3 Appropriation of payments 13
6.4 Payments in gross 13
6.5 Taxation deduction procedures 13
6.6 Amounts payable on demand 13
7 REPRESENTATIONS AND WARRANTIES 14
7.1 By the Issuer 14
7.2 By the SF Manager 15
PAGE 1
7.3 Survival and repetition of representations and warranties 15
7.4 Reliance by the Note Holder and OF Manager 16
8 UNDERTAKINGS 16
8.1 Term of undertakings 16
8.2 Compliance with Covenants 16
9 EVENTS OF DEFAULT 16
9.1 Effect of Event of Default 16
9.2 Issuer to continue to perform 16
9.3 Enforcement 17
10 INCREASED COSTS, ILLEGALITY AND YIELD PROTECTION 17
10.1 Increased costs 17
10.2 Illegality 18
11 TRUSTEE LIMITATION OF LIABILITY PROTECTION 18
11.1 Limitation of Liability - Issuer 18
11.2 Limitation of Liability - Note Holder 19
11.3 Wilful Default of the Issuer and the Note Holder 20
12 INDEMNITIES 21
12.1 General indemnity 21
12.2 Continuing indemnities and evidence of loss 21
12.3 Funds available for indemnity 22
12.4 Negligence, wilful default or breach of law 22
12.5 Notification from Note Holder or OF Manager 22
13 TAX, COSTS AND EXPENSES 22
13.1 Tax 22
13.2 Costs and expenses 23
14 INTEREST ON OVERDUE AMOUNTS 23
14.1 Payment of interest 23
14.2 Accrual of interest 24
14.3 Rate of interest 24
15 ASSIGNMENT 24
15.1 Assignment by Transaction Party 24
15.2 Assignment by Note Holder and OF Manager 24
15.3 Assist transfer or assignment 24
15.4 Participation permitted 24
15.5 Lending Office 24
15.6 Disclosure 25
15.7 No increase in costs 25
16 GENERAL 25
16.1 Confidential information 25
PAGE 2
16.2 Performance by Note Holder of obligations 25
16.3 Transaction Party to bear cost 25
16.4 Notices 25
16.5 Governing law and jurisdiction 27
16.6 Prohibition and enforceability 27
16.7 Waivers 27
16.8 Variation 28
16.9 Cumulative rights 28
16.10 Attorneys 28
16.11 Binding Obligations 28
16.12 Winding up of Securitisation Fund 28
16.13 Termination clause 28
PAGE 3
--------------------------------------------------------------------------------
THIS REDRAW 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:
PAGE 1
--------------------------------------------------------------------------------
1 DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this agreement:
ATTORNEY means an attorney appointed under a Material
Document;
BASE RATE means in respect of a Funding Portion and a Payment
Period:
(a) the rate percent per annum determined by the OF
Manager by taking the rates quoted on the page
entitled "BBSW" on the Reuters Monitor System at or
about 10.10 am (Melbourne time) on the Funding Date
by each Reference Bank (provided that at least 4
Reference Banks are quoting) as being its mean buying
and selling rate for a bank accepted Xxxx having a
tenor equal to 90 days eliminating one of the highest
and one of the lowest mean rates, and then
calculating the average of the remaining mean rates
and then (if necessary) rounding up the resultant
figure to four decimal places; or
(b) if in respect of any Funding Date the Base Rate
cannot be determined because:
(1) less than 4 Reference Banks have quoted
their relevant rates; or
(2) the Payment Period does not equal a tenor in
relation to which at least 4 Reference Banks
have quoted their relevant rates,
on the page entitled "BBSW" on the Reuters Monitor
System on the Funding Date, the rate percent per
annum calculated by the OF Manager in accordance with
paragraph (a) of this definition but by taking the
buying and selling rates otherwise quoted by 4 of the
Reference Banks on application by the OF Manager, for
bank accepted Bills of the same tenor and a face
value amount of A$1,000,000 each; or
(c) if in respect of any Funding Date the Base Rate
cannot be determined in accordance with paragraphs
(a) or (b) of this definition, the rate percent per
annum determined by the OF Manager in good faith to
be the rate most nearly approximating the rate that
would otherwise have been calculated by the OF
Manager in accordance with paragraph (a) of this
definition having regard to comparable indices then
available in the then current xxxx market;
XXXX means a xxxx of exchange as defined in the Bills of
Exchange Act 1909 (Cth), but does not include a cheque;
BUSINESS DAY means a day on which banks are open for business
in Melbourne and Sydney excluding a Saturday, Sunday or public
holiday;
CARD AND CHEQUE FACILITIES means any Card Facility and any
Cheque and Direct Entry Facility;
CARD FACILITY means any facility in force in respect of the
Origination Fund relating to the provision of credit cards or
debit cards;
CHEQUE AND DIRECT ENTRY FACILITY means any facility in force
in respect of the Origination Fund relating to the provision
of either or both of direct entry facilities and cheque
facilities;
PAGE 2
CLASS A NOTES has the meaning given to it by the Supplementary
Bond Terms;
CLASS B NOTES has the meaning given to it by the Supplementary
Bond Terms;
CONDITIONS means the terms and conditions as set out in
schedule 2;
DOLLARS, A$ and $ means the lawful currency of the
Commonwealth of Australia;
DRAWDOWN NOTICE means a Funding Notice or a Facility Provider
Funding Notice;
EVENT OF DEFAULT means an Event of Default as defined in the
Security Trust Deed;
EXCLUDED TAX means any Tax imposed by any jurisdiction on the
net income of the Note Holder;
FACILITY means the redraw funding facility made available by
the Note Holder to the Issuer under this agreement (by
purchase of Notes);
FACILITY PROVIDER means the provider of any of the Card and
Cheque Facilities;
FACILITY PROVIDER FUNDING NOTICE means a notice given, or to
be given, under clauses 4.3 and 4.4;
FUNDING DATE means the date on which a Note will be issued (as
stipulated in the Funding Notice) and the date on which a
Funding Portion is, or is to be, advanced or regarded as
advanced to the Issuer under this agreement;
FUNDING NOTICE means a notice given, or to be given, under
clauses 4.1 and 4.2;
FUNDING PORTION means in relation to any Note, the principal
amount of that Note to be provided or outstanding at that time
(as the case may be);
FUNDING RATE means for any Payment Period the rate per cent
per annum which is the aggregate of the Base Rate for that
Payment Period and the Margin;
GOVERNMENTAL AGENCY means any government or any governmental,
semi-governmental, administrative, fiscal or judicial body,
department, commission, authority, tribunal, agency or entity;
LENDING OFFICE means the office of the Note Holder set out on
page 1 of this agreement or such other office as notified by
the Note Holder under this agreement;
MARGIN means that percentage notified by the OF Manager to the
SF Manager on or about the issue of a Note as the margin
applicable to that Note;
MASTER TRUST DEED means the Master Trust Deed dated 4 July
1994 made between Superannuation Members' Home Loans Limited
and Perpetual Trustees Australia Limited and providing for the
establishment of a series of separate trusts known
collectively as the Superannuation Members' Home Loans Trust,
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;
NOTE means a Note issued under Parts 2 and 4;
PAGE 3
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";
and
(b) in relation to the SF Manager and OF Manager, a
director or a secretary, or a person notified to be
an authorised officer of the relevant party;
ORIGINATION FUND means Superannuation Members' Home Loans
Origination Fund No. 3;
ORIGINATION FUND LOAN has the same meaning as in clause 3.3;
OUTSTANDING MONEYS means all debts and monetary liabilities of
the Issuer to the Note Holder under or in relation to any
Material Document and in any capacity, irrespective of whether
the debts or liabilities:
(a) are present or future;
(b) are actual, prospective, contingent or otherwise;
(c) are at any time ascertained or unascertained;
(d) are owed or incurred by or on account of the Issuer
alone, or severally or jointly with any other person;
(e) are owed to or incurred for the account of the Note
Holder alone, or severally or jointly with any other
person;
(f) are owed or incurred as principal, interest, fees,
charges, taxes, duties or other imposts, damages
(whether for breach of contract or tort or incurred
on any other ground), losses, costs or expenses, or
on any other account; or
(g) comprise any combination of the above;
OVERDUE RATE means on any date the rate percent per annum
which is the aggregate of 2% per annum and the Funding Rate;
PAYMENT DATE has the meaning given to it under the
Supplementary Bond Terms in respect of the Class A Notes;
PAYMENT PERIOD means the period from and including the last
Payment Date to but excluding the next Payment Date except
that the first Payment Period will commence on the relevant
Funding Date and the last Payment Period will end on the
Termination Date;
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;
REDRAW AMOUNT has the same meaning as in clause 3.2(a);
REDRAW FACILITY means a facility contained in a loan or other
form of financial accommodation the repayment of which is
secured by a mortgage granted or transferred to the Issuer,
which allows the mortgagor under that mortgage to redraw
amounts prepaid under that loan;
PAGE 4
REFERENCE BANK means any one of Commonwealth Bank of
Australia, Westpac Banking Corporation, National Australia
Bank Limited and Australia and New Zealand Banking Group
Limited;
REGISTER means the register of Note Holders maintained by the
Issuer;
SAME DAY FUNDS means bank cheque or other immediately
available funds;
SECURED CREDITORS has the meaning given to it in the Security
Trust Deed;
SECURITISATION FUND means the Securitisation Fund constituted
under the Master Trust Deed known as the Superannuation
Members' Home Loans Global Fund No. 4;
SECURITY TRUST DEED means the Security Trust Deed 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;
SUPPLEMENTARY BOND TERMS means the Supplementary Bond Terms
Notice dated on or about the date of this agreement in respect
of the Securitisation Fund and providing the terms of issue of
Class A Notes and Class B Notes;
TAX means:
(a) any tax, levy, charge, impost, duty, fee, deduction,
compulsory loan or withholding; or
(b) any income, stamp or transaction duty, tax or charge,
which is assessed, levied, imposed or collected by any
Governmental Agency and includes, but is not limited to, any
interest, fine, penalty, charge, fee or other amount imposed
on or in respect of any of the above;
TERMINATION DATE means the day which is 1 Business Day prior
to the Final Maturity Date as defined in the Supplementary
Bond Terms;
TRANSACTION DOCUMENT has the meaning given to it in the Master
Trust Deed and includes this agreement and any document or
agreement entered into or given under it (including Notes);
TRANSACTION PARTY means:
(a) the Issuer; or
(b) the SF Manager.
1.2 INTERPRETATION
In this agreement, headings and boldings are for convenience
only and do not affect the interpretation of this agreement
and, unless the context otherwise requires:
(a) words importing the singular include the plural and
vice versa;
(b) words importing a gender include any gender;
(c) other parts of speech and grammatical forms of a word
or phrase defined in this agreement have a
corresponding meaning;
PAGE 5
(d) an expression importing a natural person includes any
company, partnership, joint venture, association,
corporation or other body corporate and any
Governmental Agency;
(e) a reference to any thing (including, but not limited
to, any right) includes a part of that thing;
(f) a reference to a part, clause, party, annexure,
exhibit or schedule is a reference to a part and
clause of, and a party, annexure, exhibit and
schedule to, this agreement and a reference to this
agreement includes any annexure, exhibit and
schedule;
(g) a reference to a statute, regulation, proclamation,
ordinance or by-law includes all statutes,
regulations, proclamations, ordinances or by-laws
amending, consolidating or replacing it, and a
reference to a statute includes all regulations,
proclamations, ordinances and by-laws issued under
that statute;
(h) a reference to a document includes all amendments or
supplements to, or replacements or novations of, that
document;
(i) a reference to liquidation includes appointment of an
administrator, compromise, arrangement, merger,
amalgamation, reconstruction, winding up,
dissolution, assignment for the benefit of creditors,
scheme, composition or arrangement with creditors,
insolvency, bankruptcy, or a similar procedure or,
where applicable, changes in the constitution of any
partnership or person or death;
(j) a reference to a party to any document includes that
party's successors and permitted assigns;
(k) a reference to an agreement other than this agreement
includes an undertaking, deed, agreement or legally
enforceable arrangement or understanding whether or
not in writing;
(l) a reference to an asset includes all property of any
nature, including, but not limited to, a business,
and all rights, revenues and benefits;
(m) a reference to a document includes any agreement in
writing, or any certificate, notice, instrument or
other document of any kind;
(n) no provision of this agreement will be construed
adversely to a party solely on the ground that the
party was responsible for the preparation of this
agreement or that provision;
(o) a reference to the drawing, accepting, endorsing or
other dealing with or of a Xxxx refers to a drawing,
accepting, endorsing or dealing within the meaning of
the Bills of Exchange Xxx 0000;
(p) a reference to a body, other than a party to this
agreement (including, without limitation, an
institute, association or authority), whether
statutory or not:
(1) which ceases to exist; or
(2) whose powers or functions are transferred to
another body,
is a reference to the body which replaces it or which
substantially succeeds to its powers or functions;
and
PAGE 6
(q) the Issuer or the Note Holder will only be considered
to have knowledge or awareness of, or notice of, a
thing, or grounds to believe any thing, by virtue of
the officers of the Issuer or the Note Holder having
day to day responsibility for the administration of
the Origination Fund or the Securitisation Fund (as
the case may be) having actual knowledge, actual
awareness or actual notice of that thing, or grounds
or reason to believe that thing (and similar
references will be interpreted in this way). In
addition, notice, knowledge or awareness of an Event
of Default means notice, knowledge or awareness of
the occurrence of the events or circumstances
constituting an Event of Default and that those
events or circumstances constitute an Event of
Default.
1.3 BUSINESS DAY
Unless otherwise stipulated in this agreement, where the day
on or by which any thing is to be done is not a Business Day,
that thing must be done on or by the succeeding Business Day.
1.4 TRANSACTION DOCUMENT
The parties agree that this agreement and any document or
agreement entered into or given under it (including a Note) is
a "Transaction Document" for the purposes of the Master Trust
Deed.
--------------------------------------------------------------------------------
2 THE NOTES
2.1 APPLICATION FOR AND ISSUE OF NOTES
(a) The SF Manager may direct that the Issuer issues a
Note to the Note Holder by:
(1) directing a Note be issued from SMHL Global
Fund No.4;
(2) specifying the principal amount of the Note
required;
(3) specifying the proposed date and time of
issue of the Note; and
(4) providing to the Note Holder and the OF
Manager a Funding Notice (and a copy to the
Issuer) pursuant to clause 4.
(b) The OF Manager may direct that the Issuer and the SF
Manager cause the Issuer to issue a Note to the Note
Holder by:
(1) directing a Note be issued from SMHL Global
Fund No.4;
(2) specifying the principal amount of the Note
required;
(3) specifying the proposed date and time of
issue of the Note; and
(4) providing to the Issuer and the SF Manager
(and copy to the Noteholder) a Facility
Provider Funding Notice pursuant to clause
4.
(c) If the SF Manager has directed that the Issuer issues
a Note in accordance with clause 2.1(a) or the OF
Manager has directed that the Issuer issues a Note in
accordance with clause 2.1(b),the Note Holder must
subscribe for the Note as requested by the SF
Manager, and the Issuer must, on the
PAGE 7
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.
(d) The parties agree that the terms and conditions
contained in this agreement, the Supplementary Bond
Terms and the Security Trust Deed govern the issue
and repayment of the Notes.
2.2 ACKNOWLEDGMENT OF INDEBTEDNESS
The Issuer acknowledges its indebtedness to the Note Holder in
respect of each Note issued under this agreement.
2.3 OBLIGATIONS UNDER NOTES
(a) The obligations of the Issuer under the Notes are
constituted by, and specified in, this agreement and
in the Conditions.
(b) Each Note is a separate debt of the Issuer.
(c) The entitlement of any person to a Note is determined
by registration as a Note Holder of that Note.
(d) The making of, or giving effect to, a manifest error
in an inscription in the Register will not avoid the
creation or transfer of a Note.
2.4 OWNERSHIP OF NOTES
(a) A Note may be transferred by the Note Holder to any
person in accordance with this agreement.
(b) The person whose name is registered as the Note
Holder of a Note in the Register will, and will be
treated by the Issuer as the absolute owner of the
Note.
2.5 REGISTER
The Issuer must:
(a) establish and maintain the Register;
(b) enter in the Register in respect of each Note:
(1) the principal amount and principal
outstanding in respect of each Note;
(2) its date of issue and date of redemption and
cancellation; and
(3) the date on which any person becomes, or
ceases to be, a Note Holder.
--------------------------------------------------------------------------------
3 REDRAW FACILITIES
3.1 PURPOSE
The Issuer must, and the SF Manager must cause the Issuer to,
only use the net proceeds of a Funding Portion to:
PAGE 8
(a) provide funds requested under a Redraw Facility; and
(b) reimburse the Note Holder for amounts paid or payable
by the Note Holder to a Facility Provider under or in
respect of the Card and Cheque Facilities to fund a
redraw under a Redraw Facility provided by the
Issuer.
3.2 LOAN REDRAWS
(a) The OF Manager must notify the SF Manager by such
time as they may agree on each Business Day all
amounts payable by the Note Holder on that Business
Day to a Facility Provider under or in respect of the
Card and Cheque Facilities to fund redraws under
Redraw Facilities provided by the Issuer (REDRAW
AMOUNT).
(b) The Issuer must and the SF Manager must cause the
Issuer to pay to the Note Holder on each Business Day
an amount equal to the Redraw Amount for that
Business Day. The amount payable under this clause
3.2(b) must be paid by such time as the parties may
from time to time agree.
(c) Except as expressly provided under this agreement,
the Issuer has no obligation to reimburse the Note
Holder for any amounts paid or payable by the Note
Holder to a Facility Provider under or in respect of
the Facilities to fund redraws under Redraw
Facilities provided by the Issuer.
--------------------------------------------------------------------------------
4 FUNDING PROCEDURES
4.1 DELIVERY OF FUNDING NOTICE
If the SF Manager determines that the Issuer requires a Note
to be issued, the SF Manager must deliver to the Note Holder
and the OF Manager a Funding Notice in accordance with this
clause 4.
4.2 REQUIREMENTS FOR A FUNDING NOTICE
A Funding Notice:
(a) must be in writing in the form of, and specifying the
matters set out in, schedule 1;
(b) must be received by the Note Holder and the OF
Manager not later than 10.00 am on the Business Day
which is the Funding Date; and
(c) must be signed by an Officer of the SF Manager.
4.3 DELIVERY OF FACILITY PROVIDER FUNDING NOTICE
If the OF Manager determines that the Note Holder has, subject
to clause 3, an obligation to a Facility Provider to fund a
redraw under a Redraw Facility provided by the Issuer, the OF
Manager must deliver to the Issuer and the SF Manager a
Facility Provider Funding Notice in accordance with this
clause 4.
4.4 REQUIREMENTS FOR A FACILITY PROVIDER FUNDING NOTICE
A Facility Provider Funding Notice:
PAGE 9
(a) must be in writing in the form of, and specifying the
matters set out in schedule 3;
(b) must be received by the Issuer and the SF Manager not
later than 12.00 noon on the Business Day which is
the Funding Date; and
(c) must be signed by an Officer of the OF Manager.
4.5 COPY OF THE NOTE
(a) A copy of each Funding Notice must be provided to the
Issuer at the same time it is given to the Note
Holder and the OF Manager.
(b) A copy of each Facility Provider Funding Notice must
be provided to the Note Holder at the same time it is
given to the Issuer and the SF Manager.
4.6 IRREVOCABILITY OF FUNDING NOTICE
The Note Holder and the OF Manager must not decline to provide
the funding specified in a Drawdown Notice. Following the
issue of the Drawdown 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.
4.7 NOTIFICATION OF FUNDING RATE
(a) After the OF Manager has determined the Base Rate for
a Payment Period it must promptly notify the Issuer
and SF Manager in writing of the Funding Rate for
that Payment Period, specifying both the Base Rate
and the Margin.
(b) In the absence of manifest error, each determination
of the Base Rate by the OF Manager is conclusive
evidence of that rate against the Issuer and the SF
Manager.
--------------------------------------------------------------------------------
5 LOAN FACILITY
5.1 PROVISION OF FUNDING PORTIONS
(a) If the SF Manager gives a Funding Notice in
accordance with clause 4, then, subject to this
agreement (including, without limitation, clause 11),
the Note Holder must, and the OF Manager must cause
the Note Holder to, provide the relevant Funding
Portion under the Facility as payment for the
relevant Note in Same Day Funds in Dollars not later
than 12 noon (Melbourne time) on the specified
Funding Date and in accordance with that Funding
Notice.
(b) If the OF Manager gives a Facility Provider Funding
Notice in accordance with clause 4 then, subject to
this agreement (including, without limitation, clause
11), the Note Holder is deemed to have provided the
relevant Funding Portion under the Facility as
payment for the Note on the specified Funding Date
and in accordance with that Facility Provider Funding
Notice. This clause 5.1(b) has application only to
the extent that
PAGE 10
the Note Holder has made or has an obligation to make
a payment to a Facility Provider under a Card and
Cheque Facility in respect of Redraw Facilities
provided by the Issuer on that day.
5.2 REPAYMENT
On each Payment Date and to the extent that during the Payment
Period it has not done so, the Issuer must, and the SF Manager
must cause the Issuer to:
(a) repay so much of the Principal Outstanding (to the
extent that funds are available from the
Securitisation Fund) as the Issuer is required to
apply from "Interest Collections" to "repayment of
any principal due and payable under any Redraw
Funding Facility" pursuant to clause 6.1(m) of the
Supplementary Bond Terms; and
(b) repay so much of the Principal Outstanding (to the
extent that funds are available from the
Securitisation Fund) (after the repayment in clause
5.2(a)) as the Issuer is required to apply from
"Principal Collections" to "repayment of any Redraw
Principal Outstanding under a Redraw Funding
Facility" pursuant to clause 6.2(e) of the
Supplementary Bond Terms.
5.3 REPAYMENT OF OUTSTANDING MONEYS
(a) The Principal Outstanding under the Facility must be
repaid by the Issuer to the Note Holder:
(1) in full on the Termination Date; and
(2) otherwise as specified in, or required
under, the Transaction Documents,
and the SF Manager must cause the Issuer to do so.
(b) The Issuer must, and the SF Manager must cause the
Issuer to, pay or repay the balance of the
Outstanding Moneys in full to the Note Holder on the
Termination Date or on such other date on which the
Principal Outstanding is, or is required to be,
repaid in full.
5.4 INTEREST
(a) On each Payment Date, the Issuer must, and the SF
Manager must cause the Issuer to, pay to the Note
Holder interest (to the extent that funds are
available from the Securitisation Fund) on the
Principal Outstanding at the Funding Rate:
(1) in relation to any Funding Portion drawn
during the current Payment Period, for the
period from and including the relevant
Funding Date to but excluding the Payment
Date; and
(2) in relation to the remainder of the
Principal Outstanding, for the Payment
Period,
to the extent to which the Issuer is required to
apply from "Interest Collections" to "payment of any
interest due under any Redraw Funding Facility"
pursuant to clause 6.1(d) of the Supplementary Bond
Terms.
PAGE 11
(b) If on any Payment Date, interest in respect of the
relevant Payment Period is not paid on the whole
amount of the Principal Outstanding:
(1) that unpaid interest shall accrue interest
at the Overdue Rate for the next Payment
Period;
(2) that unpaid interest and interest accrued
under paragraph (1) shall become payable on
the next Payment Date to the extent to which
(after payment of interest under clause
5.4(a)) the Issuer is required to apply from
"Interest Collections" to "payment of
interest due under any Redraw Funding
Facility" pursuant to clause 6.1 of the
Supplementary Bond Terms; and
(3) to the extent to which any unpaid interest
(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. (c) Interest must be
calculated in arrears on daily balances on
the basis of a 365 day year and for the
actual number of days elapsed during the
relevant period.
5.5 ORDER OF REPAYMENT
(a) In making repayments under clauses 5.2 and 5.3, the
Issuer must, and the SF Manager must cause the Issuer
to, apply the amount of the repayment to repay the
Principal Outstanding under the Notes in order of the
date of issue of the Notes so that the Notes issued
earlier in time are repaid first.
(b) The Note Holder must, and the OF Manager must cause
the Note Holder to, apply repayments in accordance
with clause 5.5(a).
(c) The OF Manager must advise the Issuer and the SF
Manager in writing of the Notes which have been
wholly or partly repaid, the amount of the repayment
and the Principal Outstanding under that Note.
--------------------------------------------------------------------------------
6 PAYMENTS
6.1 MANNER OF PAYMENTS
All payments to the Note Holder under the Material Documents
must be made:
(a) in Same Day Funds;
(b) in Dollars; and
(c) not later than 11:00 am (Melbourne time) on the due
date,
to the account of the Note Holder specified by the OF Manager
to the Issuer or in such other manner to an account of the
Note Holder as the OF Manager directs from time to time.
6.2 PAYMENTS ON A BUSINESS DAY
If a payment is due on a day which is not a Business Day, the
due date for that payment is the next Business Day and
interest must be adjusted accordingly.
PAGE 12
6.3 APPROPRIATION OF PAYMENTS
(a) All payments made by the Issuer to the Note Holder
under this agreement may be appropriated as between
principal, interest and other amounts, as the OF
Manager in its absolute discretion determines, or,
failing any determination, in the following order:
(1) first, towards reimbursement of all fees,
costs, expenses, charges, damages and
indemnity payments incurred or due and owing
by the Transaction Parties under the
Material Documents;
(2) second, towards payment of interest due and
payable under the Material Documents; and
(3) third, towards repayment of the Principal
Outstanding.
(b) Any appropriation under clause 6.3(a) overrides any
appropriation made by the Issuer.
6.4 PAYMENTS IN GROSS
All payments which a Transaction Party is required to make
under any Material Document must be:
(a) without any set-off, counterclaim or condition; and
(b) without any deduction or withholding for any Tax or
any other reason, unless, the Transaction Party is
required to make a deduction or withholding by
applicable law.
6.5 TAXATION DEDUCTION PROCEDURES
If a Transaction Party is required to make a deduction or
withholding in respect of Tax from any payment to be made to
the Note Holder under any Material Document, then:
(a) that Transaction Party has no obligation to indemnify
the Note Holder against that tax; and
(b) that Transaction Party must, and in the case of the
Issuer, the SF Manager must cause the Issuer to, use
its best endeavours to obtain official receipts or
other documentation from that Governmental Agency and
within 2 Business Days after receipt the Issuer must,
and the SF Manager must cause the Issuer to, deliver
them to the Note Holder.
6.6 AMOUNTS PAYABLE ON DEMAND
If any amount payable by a Transaction Party under any
Material Document is not expressed to be payable on a
specified date that amount is payable by the Transaction Party
on demand by the Note Holder or OF Manager.
PAGE 13
--------------------------------------------------------------------------------
7 REPRESENTATIONS AND WARRANTIES
7.1 BY THE ISSUER
The Issuer hereby represents and warrants to the OF Manager
and Note Holder that:
(a) (DUE INCORPORATION): it is duly incorporated and has
the corporate power to own its property and to carry
on its business as is now being conducted;
(b) (CONSTITUTION): the execution delivery and
performance of this agreement and any Note does not
and will not violate its Constitution;
(c) (CORPORATE POWER): it has the power and has taken all
corporate and other action required to enter into
this agreement and each Note and to authorise the
execution and delivery of this agreement and each
Note and the performance of its obligations
thereunder;
(d) (FILINGS): it has filed all corporate notices and
effected all registrations with the Australian
Securities and Investments Commission or similar
office in the jurisdiction of incorporation and in
any other jurisdiction as required by law and all
such filings and registrations are current, complete
and accurate except:
(1) as such enforceability may be limited by any
applicable bankruptcy, insolvency,
re-organisation, moratorium or trust or
other similar laws affecting creditors'
rights generally; and
(2) that this representation and warranty does
not apply to the filing of ASIC form 309 in
relation to the creation of the Charge (as
defined in the Security Trust Deed);
(e) (LEGALLY BINDING OBLIGATION): this agreement and each
Note constitutes or will constitute a valid, legally
binding and enforceable obligation of it in
accordance with its terms except as such
enforceability may be limited by any applicable
bankruptcy, insolvency, reorganisation, moratorium or
trust laws or other similar laws affecting creditors'
rights generally;
(f) (EXECUTION, DELIVERY AND PERFORMANCE): the execution,
delivery and performance of this agreement and each
Note by it does not violate any existing law or
regulation or any document or agreement to which it
is a party in either case in its capacity as trustee
of the Securitisation Fund or which is binding upon
it or any of its assets in its capacity as trustee of
the Securitisation Fund;
(g) (AUTHORISATION): all consents, licences, approvals
and authorisations of every Governmental Agency
required to be obtained by it in connection with the
execution and delivery of, and performance of its
obligations under, this agreement and any Note have
been obtained and are valid and subsisting;
(h) (SECURITISATION FUND VALIDLY CREATED): the
Securitisation Fund has been validly created and is
in existence at the date of this agreement;
(i) (SOLE TRUSTEE): it has been validly appointed as
trustee of the Securitisation Fund and is presently
the sole trustee of the Securitisation Fund;
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 11 in the case of the Issuer), comply with the
undertakings in this clause 8.
8.2 COMPLIANCE WITH COVENANTS
The Issuer must and the SF Manager must ensure that the Issuer
does comply with all of its covenants and obligations under
the Security Trust Deed and Supplementary Bond Terms.
--------------------------------------------------------------------------------
9 EVENTS OF DEFAULT
9.1 EFFECT OF EVENT OF DEFAULT
(a) Upon or at any time after the occurrence of an Event
of Default the Note Holder or the OF Manager may by
notice to the Issuer and the SF Manager declare that
the Outstanding Moneys are immediately due and
payable.
(b) The Issuer must and the SF Manager must cause the
Issuer to upon receipt of a notice under clause
9.1(a) immediately repay in full the Outstanding
Moneys to the Note Holder.
9.2 ISSUER TO CONTINUE TO PERFORM
(a) If the Note Holder or OF Manager makes any
declaration under clause 9.1:
(1) the declaration does not affect or diminish
the duties and obligations of the Issuer or
the SF Manager under the Transaction
Documents; and
(2) the Issuer and the SF Manager must continue
to perform its obligations under the
Transaction Documents as if the declaration
had not been made, subject to any directions
that may be given by the Note Holder or the
OF Manager from time to time under any
Transaction Document.
(b) Clause 9.2(a) does not affect the obligations of the
Issuer or the SF Manager under clause 9.1.
PAGE 16
9.3 ENFORCEMENT
(a) The Material Documents may be enforced without notice
to or consent by the Issuer or SF Manager or any
other person even if the Note Holder accepts any part
of the Outstanding Moneys after an Event of Default
or there has been any other Event of Default.
(b) Neither the Note Holder nor the OF Manager is liable
to any Transaction Party for any loss or damage a
Transaction Party may suffer, incur or be liable for
arising out of or in connection with the Note Holder
or OF Manager exercising any Power under any Material
Document.
--------------------------------------------------------------------------------
10 INCREASED COSTS, ILLEGALITY AND YIELD PROTECTION
10.1 INCREASED COSTS
If the OF Manager determines that the Note Holder is affected
by any future, or any change in any present or future, law,
regulation, order, treaty, official directive or request (with
which, if not having the force of law, compliance is in
accordance with the practice of responsible bankers and
financial institutions in the jurisdiction concerned)
including, but not limited to in respect of:
(a) any reserve, liquidity, capital adequacy, capital
allocation, special deposit or similar requirement;
or
(b) Tax (other than Excluded Tax in respect of the
Securitisation Fund) on or in respect of payments
made or to be made to the Note Holder under a
Material Document,
or a present or future interpretation or administration of any
of them by a Governmental Agency, and that, as a result:
(c) the effective cost to the Note Holder of making,
funding or maintaining the Facility or the Principal
Outstanding or performing any of its obligations
under or in respect of the Material Documents is in
any way directly or indirectly increased; or
(d) any amount paid or payable to, or received or
receivable by, the Note Holder or the effective
return to the Note Holder under the Material
Documents is in any way directly reduced; or
(e) the Note Holder is required to make any payment or
forego any interest or other return on or calculated
by reference to:
(1) any sum received or receivable by it under
or in respect of the Material Documents in
an amount which the OF Manager considers
material; or
(2) any capital or other amount which is or
becomes directly or indirectly allocated by
the Note Holder to the Principal Outstanding
in an amount which the OF Manager considers
material; or
(f) the Note Holder is restricted in its capacity to
enter into, or is prevented from entering into, any
other transaction with any consequence referred to in
clause 10.1(c), (d) or (e) or with any other cost or
loss of return to the Note Holder,
PAGE 17
then, and in each such case:
(g) when it becomes aware of the relevant result and has
calculated or otherwise determined the relevant
effects the Note Holder must and the OF Manager must
cause the Note Holder to promptly notify each
Transaction Party of such event; and
(h) the Issuer and the SF Manager have no obligation to
pay any amount to compensate the Note Holder for such
increased cost, reduction, payment or foregone
interest or other loss of return.
10.2 ILLEGALITY
If any event occurs (including, but not limited to, any change
in, or the introduction, implementation, operation or taking
effect of, any law, regulation, treaty, order or official
directive, or in their interpretation or application by any
Governmental Agency) which makes it unlawful, or impracticable
for the Note Holder to make, fund or maintain the Principal
Outstanding or for the Note Holder or OF Manager to perform
its obligations under any Material Documents then:
(a) the obligations of the Note Holder and the OF Manager
under the Material Documents are immediately
suspended for the duration of such illegality or
other effect; and
(b) the Note Holder and the OF Manager may, by notice to
the Issuer terminate its obligations under the
Material Documents; and
(c) if required by the applicable event, or its effect,
or if necessary to prevent or remedy a breach or to
comply with any applicable law, regulation, treaty,
order or official directive the Issuer must and the
SF Manager must cause it to immediately prepay to the
Note Holder the Outstanding Moneys of it in full or,
if in the OF Manager's opinion delay in prepayment
does not compound such breach or affect such
compliance, at the end of at least the longer of 30
days and the period ending on the next occurring
Payment Date (or such lesser period if the applicable
law, regulation, treaty, order or official directive
requires) upon prior notice to that effect from the
OF Manager.
--------------------------------------------------------------------------------
11 TRUSTEE LIMITATION OF LIABILITY PROTECTION
11.1 LIMITATION OF LIABILITY - ISSUER
(a) 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.
PAGE 18
(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 11.1 shall not apply to
any obligation or liability of the Issuer to the
extent that it is not satisfied because under the
Master Trust Deed establishing the Securitisation
Fund or by operation of law there is a reduction in
the extent of the Issuer's indemnification out of the
assets of the Securitisation Fund, as a result of the
Issuer's fraud, negligence or wilful default.
(d) It is acknowledged that the SF Manager is responsible
under the Master Trust Deed establishing the
Securitisation Fund for performing a variety of
obligations relating to the Securitisation Fund,
including under this agreement. No act or omission of
the Issuer (including any related failure to satisfy
its obligations or breach of representation or
warranty under this agreement) will be considered
fraud, negligence or wilful default of the Issuer for
the purposes of paragraph (c) of this clause 11.1 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 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 11.1.
(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 paragraph (a) to (c)
of this clause 11.1.
11.2 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 including 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
PAGE 19
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 11.2 shall not apply to
any obligation or liability of the Note Holder to the
extent that it is not satisfied because under the
Master Trust Deed establishing the Origination Fund
or by operation of law there is a reduction in the
extent of the Note Holder's indemnification out of
the assets of the Origination Fund, as a result of
the Note Holder's fraud, negligence or wilful
default.
(d) It is acknowledged that the OF Manager is responsible
under the Master Trust Deed establishing the
Origination Fund for performing a variety of
obligations relating to the Origination Fund,
including under this agreement. No act or omission of
the Note Holder (including any related failure to
satisfy its obligations or breach of representation
or warranty under this agreement) will be considered
fraud, negligence or wilful default of the Note
Holder for the purposes of paragraph (c) of this
clause 11.2 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 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 11.2.
(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 paragraph
(a) to (c) of this clause 11.2.
11.3 WILFUL DEFAULT OF THE ISSUER AND THE NOTE HOLDER
For the purposes of this agreement the expression "wilful
default":
(a) in relation to the Issuer and the Note Holder, means
a wilful default of this agreement by the Issuer or
the Note Holder, as the case may be,
(1) other than a default which:
(A) arises out of a breach of a
Transaction Document by a person
other than the Issuer or the Note
Holder or any person referred to in
paragraph (b) of this clause 11.3
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
PAGE 20
(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 Deed from the
Fund.
(b) A reference to the "fraud", "negligence" or "wilful
default" of the Issuer or the Note Holder means the
fraud, negligence or wilful default of the Issuer or
the Note Holder, as the case may be, and of the
officers or employees but not the agents or delegates
of the Issuer or the Note Holder, unless the Issuer
or the Note Holder is liable for the acts or
omissions of such other person under the terms of
this agreement.
--------------------------------------------------------------------------------
12 INDEMNITIES
12.1 GENERAL INDEMNITY
(a) Subject to Clause 11.1 the Issuer, to the extent it
is permitted or contemplated under the terms of the
Trust Deed, indemnifies on a full indemnity basis
(including legal costs and expenses charged at the
usual commercial rates of the relevant legal services
provider) and out of the property of the
Securitisation Fund the Note Holder and OF Manager
against any claim, action, damage, loss, liability,
cost, charge, expense, outgoing or payment which the
Note Holder or OF Manager, as the case may be, or an
Attorney of the Noteholder or OF Manager pays,
suffers, incurs or is liable for, in respect of any
of the following:
(1) a Funding Portion required by a Funding
Notice, not being made for any reason but
excluding any default by the Note Holder or
OF Manager, as the case may be;
(2) the occurrence of any Default or Event of
Default;
(3) the Note Holder or OF Manager, as the case
may be, exercising its Powers consequent
upon or arising out of the occurrence of any
Event of Default.
(b) Without limitation to the indemnity contained in
clause 12.1(a), that indemnity includes the amount
determined by the Note Holder or OF Manager, as the
case may be, as being incurred by reason of the
liquidation or re-employment of deposits or other
funds acquired or contracted for by the Note Holder
or OF Manager, as the case may be to fund or maintain
the Principal Outstanding or the relevant Funding
Portion and includes, but is not limited to, loss of
margin.
12.2 CONTINUING INDEMNITIES AND EVIDENCE OF LOSS
(a) Each indemnity of the Issuer contained in this
agreement is a continuing obligation of the Issuer,
despite:
(1) any settlement of account; or
PAGE 21
(2) the occurrence of any other thing,
and remains in full force and effect until:
(3) all moneys owing, contingently or otherwise,
under any of the Material Documents have
been paid in full;
(4) the Outstanding Moneys are fully and finally
repaid.
(b) Each indemnity of the Issuer contained in this
agreement is an additional, separate and independent
obligation of the Issuer and no one indemnity limits
the generality of any other indemnity.
(c) Each indemnity of the Issuer contained in this
agreement survives the termination of any Transaction
Document.
(d) A certificate under the hand of an Officer of the OF
Manager detailing the amount of any damage, loss,
liability, cost, charge, expense, outgoing or payment
covered by any indemnity in this agreement is
sufficient evidence unless the contrary is proved.
12.3 FUNDS AVAILABLE FOR INDEMNITY
The obligations of the Issuer under this clause 12 shall be
payable solely to the extent that funds are available from
time to time for that purpose under clause 7 of the
Supplementary Bond Terms.
12.4 NEGLIGENCE, WILFUL DEFAULT OR BREACH OF LAW
The indemnities in this clause 12 do not extend to any
liability, loss, cost, charge or expense that is finally and
judicially determined to result from any negligence, wilful
default or breach of law by the other parties to this
agreement.
12.5 NOTIFICATION FROM NOTE HOLDER OR OF MANAGER
If the Note Holder or the OF Manager receives written notice
of any act, matter or thing which may give rise to a
liability, loss, cost, charge or expense in relation to which
the Issuer would be required to indemnify it under this clause
12, the Note Holder or the OF Manager (as the case may be)
will notify the Issuer of that act, matter or thing giving
such details as it is practicable to give as soon as it is
reasonably practicable and in any event within 5 Business Days
of it coming to its attention, provided that failure to do so
will not result in any loss or reduction in the indemnity
contained in this clause 12 unless the Issuer has been
prejudiced in any material respect by such failure.
--------------------------------------------------------------------------------
13 TAX, COSTS AND EXPENSES
13.1 TAX
(a) The Issuer must and the SF Manager must cause the
Issuer to pay any Tax, other than an Excluded Tax in
respect of the Securitisation Fund, in respect of the
execution, delivery, performance, release, discharge,
amendment, enforcement or attempted enforcement or
otherwise in respect of any of the following:
PAGE 22
(1) any Material Document;
(2) any agreement or document entered into or
signed under any Material Document; and
(3) any transaction contemplated under any
Material Document or any agreement or
document described in clause 13.1(a)(2).
(b) The Issuer must and the SF Manager must cause the
Issuer to pay any fine, penalty or other cost in
respect of a failure to pay any Tax described in
clause 13.1(a) except to the extent that the fine,
penalty or other cost is caused by the Note Holder's
failure to lodge money received from the Issuer
before the due date for lodgement.
(c) The Issuer indemnifies out of the property of the
Securitisation Fund the Note Holder against any
amount payable under clause 13.1(a) or 13.1(b) or
both.
13.2 COSTS AND EXPENSES
The Issuer must and the SF Manager must cause the Issuer to
pay all costs and expenses of the Note Holder and the OF
Manager and any employee, Officer, agent or contractor of the
Note Holder and the OF Manager in relation to:
(a) the negotiation, preparation, execution, delivery,
stamping, registration, completion, variation and
discharge of any Material Document or any agreement
or document described in clause 13.1(a);
(b) the enforcement, protection or waiver, or attempted
enforcement or protection, of any rights under any
Material Document or any agreement or document
described in clause 13.1(a);
(c) the consent or approval of the Note Holder or OF
Manager given under any Material Document or any
agreement or document described in clause 13.1(a);
and
(d) any enquiry by any Governmental Agency involving a
Transaction Party,
including, but not limited to, any administration costs of the
Note Holder or the OF Manager, as the case may be, in
connection with the matters referred to in clause 13.2(b) and
(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.
--------------------------------------------------------------------------------
14 INTEREST ON OVERDUE AMOUNTS
14.1 PAYMENT OF INTEREST
The Issuer must and the SF Manager must cause the Issuer to
pay interest on:
(a) any of the Outstanding Moneys due and payable, but
unpaid; and
(b) on any interest payable but unpaid in accordance with
clause 5.
PAGE 23
14.2 ACCRUAL OF INTEREST
The interest payable under this clause 14:
(a) accrues from day to day from and including the due
date for payment up to the actual date of payment,
before and, as an additional and independent
obligation, after any judgment or other thing into
which the liability to pay the Outstanding Moneys
becomes merged; and
(b) may be capitalised by the Note Holder on any Payment
Date.
14.3 RATE OF INTEREST
The rate of interest payable under this clause 14 on any part
of the Outstanding Moneys is the higher of:
(a) the Overdue Rate; and
(b) the rate fixed or payable under a judgment or other
thing referred to in clause 14.2(a).
--------------------------------------------------------------------------------
15 ASSIGNMENT
15.1 ASSIGNMENT BY TRANSACTION PARTY
A Transaction Party must not transfer or assign any of its
rights or obligations under any Material Document without the
prior written consent of the other parties.
15.2 ASSIGNMENT BY NOTE HOLDER AND OF MANAGER
Neither the Note Holder nor the OF Manager may assign any of
its rights or transfer by novation any of its rights and
obligations under this agreement without the prior written
consent of the other parties.
15.3 ASSIST TRANSFER OR ASSIGNMENT
At the request of the Note Holder or OF Manager, the Issuer
and the SF Manager must do any thing including, but not
limited to, executing any documents or amending any Material
Document, to effect any transfer or assignment under this
clause 15.
15.4 PARTICIPATION PERMITTED
The Note Holder and OF Manager may grant by way of
sub-participation (being a right to share in the financial
effects of this agreement, without any rights against the
Issuer) all or part of the Note Holder's or OF Manager's, as
the case may be, rights and benefits under this agreement to
any other person without having to obtain the consent of or to
notify the Issuer or the SF Manager.
15.5 LENDING OFFICE
(a) The Note Holder may change its Lending Office at any
time.
(b) The Note Holder must promptly notify the Issuer and
the SF Manager of any such change.
PAGE 24
15.6 DISCLOSURE
Any party may disclose to a proposed assignee, transferee or
sub-participant any information relating to any other party or
the Transaction Documents whether or not confidential and
whether or not the disclosure would be in breach of any law or
of any duty owed to that other party.
15.7 NO INCREASE IN COSTS
If the Note Holder or OF Manager assigns or transfers any of
its rights or obligations under any Material Document or
changes its Lending Office the Issuer is not required to pay
any net increase in the aggregate amount of costs, Taxes, fees
or charges which:
(a) are a direct consequence of the transfer or
assignment or change of Lending Office; and
(b) the Note Holder or OF Manager as the case may be, or
its transferee or assignee was aware of or ought
reasonably to have been aware of, at the time of the
transfer or assignment or change of Lending Office.
--------------------------------------------------------------------------------
16 GENERAL
16.1 CONFIDENTIAL INFORMATION
The Note Holder and OF Manager may, for the purpose of
exercising any Power, disclose to any person any documents or
records of, or information about, any Transaction Document, or
the assets, business or affairs of any Transaction Party,
whether or not confidential and whether or not the disclosure
would be in breach of any law or of any duty owed to any
Transaction Party.
16.2 PERFORMANCE BY NOTE HOLDER OF OBLIGATIONS
If a Transaction Party defaults in fully and punctually
performing any obligation contained or implied in any
Transaction Document, the Note Holder and OF Manager may,
without prejudice to any Power do all things necessary or
desirable, in the opinion of the Note Holder or OF Manager, as
the case may be, to make good or attempt to make good that
default to the satisfaction of the Note Holder or OF Manager,
as the case may be.
16.3 TRANSACTION PARTY TO BEAR COST
Without prejudice to clause 11, any thing which must be done
by a Transaction Party under any Material Document, whether or
not at the request of the Note Holder or OF Manager, must be
done at the cost of the Transaction Party.
16.4 NOTICES
(a) Any notice or other communication including, but not
limited to, any request, demand, consent or approval,
to or by a party to any Material Document:
PAGE 25
(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; and
(C) if to the SF Manager:
Address: Xxxxx 00,
000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx 0000
Attention: Funding Manager
Facsimile: (00) 0000 0000; and
(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, as
long as it is legibly received,
when transmitted to the addressee,
but if the delivery or receipt is on a day
which is not a Business Day or is after 4.00
pm (addressee's time) it is regarded as
received at 9.00 am on the following
Business Day;
PAGE 26
(4) can be relied upon by the addressee and the
addressee is not liable to any other person
for any consequences of that reliance if the
addressee believes it to be genuine, correct
and authorised by the sender; and
(5) if to the Note Holder must be copied to the
OF Manager and if to the Issuer must be
copied to the SF Manager.
(b) A facsimile transmission is regarded as legible
unless the addressee telephones the sender within 2
hours after the transmission is received or regarded
as received under clause 16.4(a)(3) and informs the
sender that it is not legible.
(c) In this clause 16.4, a reference to an addressee
includes a reference to an addressee's Officers,
agents or employees.
16.5 GOVERNING LAW AND JURISDICTION
(a) This agreement is governed by the laws of New South
Wales.
(b) The Parties irrevocably submit to the non-exclusive
jurisdiction of the courts of New South Wales.
16.6 PROHIBITION AND ENFORCEABILITY
(a) Any provision of, or the application of any provision
of, any Material Document or any Power which is
prohibited in any jurisdiction is, in that
jurisdiction, ineffective only to the extent of that
prohibition.
(b) Any provision of, or the application of any provision
of, any Material Document which is void, illegal or
unenforceable in any jurisdiction does not affect the
validity, legality or enforceability of that
provision in any other jurisdiction or of the
remaining provisions in that or any other
jurisdiction.
16.7 WAIVERS
(a) Waiver of any right arising from a breach of this
agreement or of any Power arising upon default under
this agreement or upon the occurrence of an Event of
Default must be in writing and signed by the party
granting the waiver.
(b) A failure or delay in exercise, or partial exercise,
of:
(1) a right arising from a breach of this
agreement or the occurrence of an Event of
Default; or
(2) a Power created or arising upon default
under this agreement or upon the occurrence
of an Event of Default,
does not result in a waiver of that right or Power.
(c) A party is not entitled to rely on a delay in the
exercise or non-exercise of a right or Power arising
from a breach of this agreement or on a default under
this agreement or on the occurrence of an Event of
Default as constituting a waiver of that right or
Power.
(d) A party may not rely on any conduct of another party
as a defence to exercise of a right or Power by that
other party.
PAGE 27
(e) This clause may not itself be waived except by
writing.
16.8 VARIATION
A variation of any term of this agreement must be in writing
and signed by the parties.
16.9 CUMULATIVE RIGHTS
The Powers are cumulative and do not exclude any other right,
power, authority, discretion or remedy of the Note Holder or
OF Manager.
16.10 ATTORNEYS
Each of the Attorneys executing this agreement states that the
Attorney has no notice of the revocation of the power of
attorney appointing that Attorney.
16.11 BINDING OBLIGATIONS
Each party to this agreement acknowledges that the obligations
expressed in this agreement are binding upon it.
16.12 WINDING UP OF SECURITISATION FUND
Prior to the Termination Date, neither the Note Holder nor the
OF Manager may seek to terminate or wind up the Securitisation
Fund as a consequence of any breach of this agreement or any
Note by the Issuer or the SF Manager.
16.13 TERMINATION CLAUSE
This agreement can only be terminated on or after the
Termination Date.
PAGE 28
--------------------------------------------------------------------------------
SCHEDULE 1 - FUNDING NOTICE
(Clause 4.2)
To: Perpetual Trustees Australia Limited in its capacity as trustee of the
Origination Fund No. 3 ("Note Holder")
ME Portfolio Management Limited ("OF Manager")
ATTENTION: MANAGER - SECURITISATION
--------------------------------------------------------------------------------
We refer to the agreement dated [INSERT DATE] ("Agreement"). Pursuant to clause
4 of the Agreement:
(a) We give you notice that we require the Issuer to issue to the Note
Holder a Note from SMHL Global Fund No.4 on ............... ("Funding
Date") at [#];
(b) The aggregate principal amount of the Note is: $........;
(c) We request that the proceeds be remitted to account number ...........
at ...................;/ [INSERT ALTERNATIVE INSTRUCTIONS]
Expressions defined in the Agreement have the same meaning
when used in this Funding Notice.
Dated: [INSERT DATE]
SIGNED for and on behalf of
ME PORTFOLIO MANAGEMENT LIMITED
------------------------------------------------
Officer's signature
------------------------------------------------
Name (please print)
PAGE 29
--------------------------------------------------------------------------------
SCHEDULE 2 - CONDITIONS
Redraw - 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, Xxx Xxxxx Xxxxx or such other address as the Issuer may notify to the
Note Holder from time to time.
--------------------------------------------------------------------------------
1 NOTE
(a) This Note certificate is issued as part of the Notes known as the SMHL
Global Fund No.4. The terms and conditions of the issue of this Note
and repayment are constituted by this Note and the Redraw Funding
Facility - Agreement for Issue and Repayment of Notes dated [##]
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 Superannuation Members' Home
Loans Global Fund No 4 ("SF Manager") and ME Portfolio Management
Limited (ABN 79 005 964 134) of Xxxxx 00, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx, in its capacity as manager of the Superannuation
Members' Home Loans Origination Fund No. 3 ("OF Manager")
("Agreement"). Terms defined in the Agreement have the same meaning
when used in these Conditions.
(b) Subject to clause 3, the Issuer promises to repay the Note Holder in
accordance with the Agreement.
(c) This Note may only be assigned or transferred with the prior written
consent of the Issuer and subject to and in accordance with the
Agreement.
2 DERIVATION OF PAYMENT
The parties acknowledge that the payments to be made by the Issuer
under this Note are derived by it from the receipts from a "mortgage"
or "pool of mortgages", as those terms are defined in section 3 of the
Duties Xxx 0000 (Vic).
3 EXTENT OF LIABILITY OF ISSUER
(a) 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
PAGE 30
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 including
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 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
paragraph (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 including
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).
PAGE 31
(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 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 do or refrain from doing anything
under this Note or the Agreement (including incur any liability) unless
the Note Holder's liability is limited in the same manner as set out in
paragraph (a) to (c) of this clause 4.
PAGE 32
SCHEDULE 3 - FACILITY PROVIDER FUNDING NOTICE
(Clause 4.4)
To: Perpetual Trustees Australia Limited in its capacity as trustee of the
Superannuation Members' Home Loans Global Fund No. 4 (ISSUER) ME
Portfolio Management Limited (SF MANAGER)
Attention: Manager - Securitisation
We refer to the agreement dated [INSERT DATE] (AGREEMENT). Pursuant to clause 4
of the Terms and Conditions:
(a) we give you notice that we require the Issuer to issue to the Note
Holder a Note from SMHL Global Fund No.4 on .................. (FUNDING
DATE) at [#];
(b) the aggregate principal amount of the Note is $.......
Expressions defined in the Agreement have the same meaning when used in this
Funding Notice.
Dated: [INSERT DATE]
Signed for and on behalf of
ME PORTFOLIO MANAGEMENT LIMITED
-----------------------
Officer's signature
-----------------------
Name (please print)
PAGE 33
EXECUTED AS AN AGREEMENT:
SIGNED for
PERPETUAL TRUSTEES AUSTRALIA LIMITED
by its attorney in the presence of:
-------------------------------------- --------------------------------------
Witness Attorney
-------------------------------------- --------------------------------------
Name (please print) Name (please print)
SIGNED for
PERPETUAL TRUSTEES AUSTRALIA LIMITED
by its attorney in the presence of:
-------------------------------------- --------------------------------------
Witness Attorney
-------------------------------------- --------------------------------------
Name (please print) Name (please print)
PAGE 34
SIGNED for
ME PORTFOLIO MANAGEMENT LIMITED
by its attorney in the presence of:
-------------------------------------- --------------------------------------
Witness Attorney
-------------------------------------- --------------------------------------
Name (please print) Name (please print)
SIGNED for
ME PORTFOLIO MANAGEMENT LIMITED
by its attorney in the presence of:
-------------------------------------- --------------------------------------
Witness Attorney
-------------------------------------- --------------------------------------
Name (please print) Name (please print)
