Exhibit 10.3
Liquidity Facility Agreement
Series 0000-0X XXX Xxxxx Liquidity Facility Agreement
Westpac Securities Administration Limited
(Trustee)
Westpac Banking Corporation
(Liquidity Provider)
Westpac Securitisation Management Pty Limited
(Trust Manager)
Allens Xxxxxx Xxxxxxxx
The Chifley Tower
0 Xxxxxxx Xxxxxx
Xxxxxx XXX 0000
Xxxxxxxxx
Tel 00 0 0000 0000
Fax 00 0 0000 0000
(C) Copyright Allens Xxxxxx Xxxxxxxx 2002
Series 2002-1G WST Trust Liquidity Facility
Agreement Allens Xxxxxx Xxxxxxxx
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Table of Contents
1. Definitions and Interpretation 1
1.1 Definitions 1
1.2 Master Trust Deed definitions 3
1.3 Interpretation 3
1.4 Determination, statement and certificate sufficient evidence 4
1.5 Transaction Document 4
1.6 Limited to Trust 4
2. Purpose 4
3. Drawings 4
3.1 Liquidity Draw 4
3.2 Making of Liquidity Draws 5
3.3 Collateral Account 6
3.4 Collateral Account with Liquidity Provider 6
3.5 New Account 6
3.6 Conditions to transfer of account balance 7
3.7 Withdrawal from accounts 7
3.8 Liquidity Provider upgrade 8
3.9 Interest Cash Advance Deposit 8
4. Funding Periods 8
5. Interest 8
5.1 Accrual 8
5.2 Payment 8
5.3 Capitalisation 8
6. Commitment Fee 9
7. Cancellation of Liquidity Limit 9
7.1 During Term 9
7.2 At end of Term 9
8. Repayment 9
8.1 Final repayment 9
8.2 Repayment of Liquidity Draws 9
8.3 Repayments during Liquidity Collateralisation Period 9
9. Prepayments 10
9.1 Voluntary prepayments 10
9.2 Interest 10
9.3 Limitation on prepayments 10
10. Payments 10
10.1 Manner 10
10.2 Payment to be made on Business Day 10
10.3 Appropriation where insufficient moneys available 10
11. Changes In Law 10
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11.1 Additional payments 10
11.2 Minimisation 11
11.3 Survival 12
12. Conditions Precedent 12
12.1 Conditions precedent to initial Drawdown Notice 12
12.2 Conditions precedent to each Liquidity Draw 12
13. Representations and Warranties 12
13.1 Representations and warranties 12
13.2 Reliance on representations and warranties 14
14. Undertakings 14
14.1 General undertakings 14
14.2 Undertakings relating to Trust 15
14.3 Term of undertakings 16
15. Events of Default 16
15.1 Events of Default 16
15.2 Consequences 16
16. Interest on Overdue Amounts 16
16.1 Accrual 16
16.2 Payment 17
16.3 Limitation 17
17. Control Accounts 17
18. Waivers, Remedies Cumulative 17
19. Severability of Provisions 17
20. Survival of Representations 18
21. Indemnity and Reimbursement Obligation 18
22. Moratorium Legislation 18
23. Consents and Opinions 18
24. Assignments 18
25. Notices 18
26. Authorised Signatories 19
27. Governing Law and Jurisdiction 19
28. Counterparts 19
29. Acknowledgement by Trustee 19
30. Limited Recourse 20
30.1 General 20
30.2 Liability of Trustee limited to its right to indemnity 20
30.3 Unrestricted remedies 21
30.4 Restricted remedies 21
31. Liquidity Provider's Obligations 21
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32. Successor Trustee 22
ANNEXURE A 24
DRAWDOWN NOTICE 24
ANNEXURE B 25
VERIFICATION CERTIFICATE 25
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Date 12 March 2002
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Parties
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1. Westpac Securities Administration Limited (ABN 77 000 049 472)
incorporated in New South Wales of Xxxxx 0, 00 Xxxx Xxxxxx, Xxxxxx,
Xxx Xxxxx Xxxxx as Trustee of the Series 0000-0X XXX Xxxxx (the
Trustee);
2. Westpac Banking Corporation (ABN 33 007 457 141) incorporated in New
South Wales of 00 Xxxxxx Xxxxx, Xxxxxx, Xxx Xxxxx Xxxxx (the
Liquidity Provider); and
3. Westpac Securitisation Management Pty Limited (ABN 73 000 000 000)
incorporated in the Australian Capital Territory of Xxxxx 00, 00
Xxxxxx Xxxxx, Xxxxxx, Xxx Xxxxx Xxxxx (the Trust Manager).
Recitals
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The Trustee has requested the Liquidity Provider to provide the
Trustee with a liquidity facility under which loans of up to an
aggregate amount of $20,630,000 may be made available to the
Trustee.
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IT IS AGREED as follows.
1. Definitions and Interpretation
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1.1 Definitions
In this agreement the following definitions apply unless the context
requires otherwise, or unless otherwise defined.
Bank Xxxx Rate, in relation to a Funding Period, has the meaning given in
the Series Notice in relation to the first day of that Funding Period, but
if a Funding Period is less than 90 days the Bank Xxxx Rate shall be an
interpolated rate calculated with reference to the tenor of that Funding
Period.
Cash Advance Deposit means the balance of the Collateral Account from time
to time.
Collateral Account means (as the context requires):
(a) the account established and maintained in accordance with clause
3.3;
(b) the account established and maintained in accordance with clause
3.5; or
(c) the account to which the Cash Advance Deposit is transferred in
accordance with clause 3.8.
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Drawdown Date means, in relation to a Liquidity Draw, the Payment Date on
which the Liquidity Draw is or is to be made under this agreement.
Drawdown Notice means a notice under clause 3.1.
Event of Default means any of the events specified in clause 15.
Existing Collateral Account has the meaning given in clause 3.5.
Final Repayment Date means the date on which the Term ends.
Funding Period means, in relation to a Liquidity Draw, the period
determined in accordance with clause 4.
Liquidity Collateralisation Period means each period commencing on the
date on which either:
(a) the short term credit rating of the Liquidity Provider is either
less than A-1+ from S&P or less than P-1 from Moody's; or
(b) S&P or Moody's ceases to provide a short term credit rating for the
Liquidity Provider (other than because S&P or Moody's , as the case
may be, ceases to provide such ratings generally),
and ending on the date on which the short term credit rating of the
Liquidity Provider is A-1+ from S&P and P-1 from Moody's.
Liquidity Draw means any advance made or to be made under this agreement.
Liquidity Limit means at any date the least of:
(a) subject to clause 7.1, $20,630,000;
(b) the Unpaid Balance of Performing Loans at that date; and
(c) any lesser amount as may be agreed in writing from time to time
between the Liquidity Provider, the Trustee, the Trust Manager and
the Designated Rating Agency for each Class of Notes,
as reduced or cancelled under this agreement.
Margin means 0.13% per annum.
Master Trust Deed means the deed entitled "Master Trust Deed" between,
among others, the Trustee and The Mortgage Company Pty Limited dated 14
February 1997.
New Collateral Account has the meaning given in clause 3.5.
Performing Loan means, at any date, a Purchased Receivable which:
(a) is not in Arrears;
(b) at that date has been in Arrears for less than 90 consecutive days;
or
(c) if it has been in Arrears at that date for 90 or more consecutive
days, was insured under a Mortgage Insurance Policy at the date of
this agreement or on or before the Closing Date.
Reference Bank has the meaning given in the 2000 ISDA Definitions.
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Series Notice means the Series Notice issued by the Trust Manager on or
about the date of this agreement under the Master Trust Deed.
Term means the period commencing on the date of this agreement and
expiring on the earlier of:
(a) the date which is one month after the Notes have been redeemed in
full in accordance with the Master Trust Deed;
(b) the date declared by the Liquidity Provider under clause 15.2;
(c) the date on which the Trustee enters into a liquidity facility, as
previously notified to the Designated Rating Agency for each Class
of Notes, to replace this agreement with any other person to enable
it to fund Liquidity Shortfalls; and
(d) the date on which the Liquidity Limit is cancelled in full under
clause 7.1.
Trust means the Series 0000-0X XXX Xxxxx constituted under the Master
Trust Deed and the Notice of Creation of Trust.
Trust Document means:
(a) this agreement;
(b) the Master Trust Deed;
(c) the Notice of Creation of Trust;
(d) the Series Notice;
(e) the Note Trust Deed;
(f) the Agency Agreement;
(g) the Security Trust Deed;
(h) the Servicing Agreement; or
(i) a Hedge Agreement.
Trustee means the Trustee of the Trust at the date of this agreement or
any person which becomes a successor Trustee under clause 24 of the Master
Trust Deed.
1.2 Master Trust Deed definitions
Words and expressions which are defined in the Master Trust Deed (as
amended by the Series Notice) and the Series Notice (including in each
case by reference to another agreement) have the same meanings when used
in this agreement, unless the context otherwise requires or unless
otherwise defined in this agreement.
1.3 Interpretation
Clause 1.2 of the Master Trust Deed applies to this agreement as if set
out in full, except that references to this Deed are references to this
agreement and:
(a) a reference to an asset includes any real or personal, present or
future, tangible or intangible property or asset and any right,
interest, revenue or benefit in, under or derived from the property
or asset;
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(b) an Event of Default subsists until it has been waived in writing by
the Liquidity Provider; and
(c) a reference to an amount for which a person is contingently liable
includes an amount which that person may become actually or
contingently liable to pay if a contingency occurs, whether or not
that liability will actually arise.
1.4 Determination, statement and certificate sufficient evidence
Except where otherwise provided in this agreement any determination,
statement or certificate by the Liquidity Provider or an Authorised
Signatory of the Liquidity Provider provided for in this agreement is
sufficient evidence unless proven wrong. 1.5 Transaction Document
This agreement is a Transaction Document for the purposes of the Master
Trust Deed.
1.6 Limited to Trust
The rights and obligations of the parties under this agreement relate only
to the Trust, and do not relate to any other Trust (as defined in the
Master Trust Deed). Without limitation, the Liquidity Provider has no
obligation under this agreement to provide financial accommodation to the
Trustee as trustee of any other Trust.
2. Purpose
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The Trust Manager directs the Trustee to, and the Trustee shall, apply the
proceeds of each Liquidity Draw to fund Liquidity Shortfalls in relation
to the Trust by crediting it to the Collection Account to be applied in
accordance with clause 6 of the Series Notice, and for no other purpose.
3. Drawings
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3.1 Liquidity Draw
(a) Subject to this agreement, if on any Determination Date the Trust
Manager determines that there is a Liquidity Shortfall in relation
to the Collection Period ending immediately prior to the
Determination Date, the Trust Manager must direct the Trustee to and
the Trustee shall (subject to this agreement and the Series Notice)
request a Liquidity Draw by giving to the Liquidity Provider a
Drawdown Notice.
(b) A Drawdown Notice must be:
(i) in writing;
(ii) in or substantially in the form of Annexure A;
(iii) signed by an Authorised Signatory of the Trustee; and
(iv) given not later than 11.00am (Sydney time) on the Remittance
Date following that Collection Period.
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(c) The amount requested in a Drawdown Notice must be the lesser of:
(i) the relevant Liquidity Shortfall; and
(ii) subject to paragraph (d), the Available Liquidity Amount at
that time.
(d) If:
(i) the aggregate of all payments required to be made under
clauses 6.10(a)(i) to (iii) inclusive of the Series Notice on
the relevant Payment Date; plus
(ii) the outstanding Liquidity Draws due to be repaid on that date;
minus
(iii) the Available Income for the relevant Collection Period;
is equal to or less than the Liquidity Limit, the calculation of
Available Liquidity Amount in paragraph (c)(ii) shall assume the
repayment of all Liquidity Draws due to be repaid on or before the
relevant Drawdown Date.
(e) The Trustee irrevocably authorises the Liquidity Provider to apply
against a Liquidity Draw provided on any Drawdown Date all amounts
which are assumed to have been applied in repaying previous
Liquidity Draws as contemplated by paragraph (d).
(f) In the case of a Liquidity Draw provided:
(i) in accordance with paragraph (c)(i); or
(ii) following an application of paragraph (d),
the Liquidity Provider will only be required to advance to the
Trustee the difference (if any) between the Liquidity Draw and the
Available Liquidity Amount immediately prior to the relevant
Drawdown Date.
3.2 Making of Liquidity Draws
Subject to the terms of this agreement, a Liquidity Draw requested in a
Drawdown Notice shall be made available:
(a) other than during a Liquidity Collateralisation Period, by the
Liquidity Provider crediting the proceeds of that Liquidity Draw to
the Collection Account by no later than 11.00 am (Sydney time) on
the relevant Remittance Date;
(b) during a Liquidity Collateralisation Period when the Collateral
Account is maintained with the Liquidity Provider, by the Trust
Manager directing the Trustee to transfer the amount of that
Liquidity Draw from the Collateral Account to the Collection
Account; and
(c) during a Liquidity Collateralisation Period when the Collateral
Account is not maintained with the Liquidity Provider, by the Trust
Manager directing the Trustee to arrange to transfer the amount of
that Liquidity Draw from the Collateral Account to the Collection
Account, in satisfaction of the Liquidity Provider's obligation to
make that Liquidity Draw available, provided that none of the
Liquidity Provider, the Trust Manager nor the Trustee shall have any
obligation if
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for any reason the Bank maintaining the Collateral Account does not
comply with a request or direction to make a transfer requested from
the Collateral Account.
3.3 Collateral Account
If at any time the Liquidity Provider's short term credit rating is less
than A-1 from S&P or P-1 from Moody's or S&P or Moody's ceases to provide
a short term credit rating for the Liquidity Provider (other than because
S&P or Moody's as the case may be, ceases to provide such ratings
generally):
(a) the Trustee must as soon as practicable establish and maintain in
the name of the Trustee an account with a Bank having a short term
rating of A-1 from S&P and P-1 from Moody's or which otherwise
satisfies the requirements of those Designated Rating Agencies; and
(b) the Liquidity Provider must within 2 Business Days or such longer
period as each Designated Rating Agency confirms will not result in
a downgrade, withdrawal or a qualification of its rating of any
Notes, deposit into that account an amount equal to the Available
Liquidity Amount at that time.
3.4 Collateral Account with Liquidity Provider
If and for so long as the Liquidity Provider has a short term credit
rating from S&P of not lower than A-1 and from Moody's of not lower than
P-1 and the Collateral Account shall be an account with the Liquidity
Provider.
3.5 New Account
If at any time:
(a) the short term credit rating of the Bank holding the Collateral
Account (the Existing Collateral Account) from S&P is lower than A-1
or from Xxxxx'x is lower than P-1; or
(b) deposits credited to the Existing Collateral Account cease to be
Authorised Investments because of paragraph (g)(B) of the definition
of Authorised Investments in clause 1.1 of the Master Trust Deed,
the Trust Manager must direct the Trustee to, and the Trustee must,
subject to clause 3.6, within 5 Business Days after such direction (or
such longer period as each Designated Rating Agency may agree):
(c) establish a new account with a Bank which has a short term credit
rating from S&P of not lower than A-1 and from Moody's of not lower
than P-1 (the New Collateral Account) in the name of the Trustee;
and
(d) transfer so much of the balance of the Existing Collateral Account
to the New Collateral Account as is not an Authorised Investment by
application of paragraph (b).
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3.6 Conditions to transfer of account balance
The Trustee shall only be obliged to transfer the balance of the Existing
Collateral Account to the New Collateral Account in accordance with clause
3.5(d) if both the Trust Manager and the Liquidity Provider are satisfied
that the terms upon which the New Collateral Account is established and
maintained are such that:
(a) the Bank with which the New Collateral Account is maintained will
have no right of set-off, combination of accounts, lien, flawed
deposit or other Security Interest over the New Collateral Account;
and
(b) the terms of the New Collateral Account may not be varied in any way
without the prior written consent of the Liquidity Provider.
The Trust Manager and the Liquidity Provider must provide the Trustee with
written notice of their satisfaction with these matters as soon as
practicable.
3.7 Withdrawal from accounts
(a) The Trustee may only make withdrawals from a Collateral Account if
directed to do so by the Trust Manager, and then only for the
following purposes:
(i) to make or fund a Liquidity Draw in accordance with this
agreement;
(ii) to transfer the credit balance of the Existing Collateral
Account to a New Collateral Account in accordance with clause
3.5;
(iii) to pay the Cash Advance Deposit to the Liquidity Provider
pursuant to clause 3.8(a);
(iv) to withdraw any amount which has been incorrectly deposited
into the Collateral Account;
(v) to pay any Tax payable in respect of the maintenance of, or
payments into or withdrawals from, the Collateral Account;
(vi) at the direction of the Trust Manager, invest in Authorised
Investments which mature no later than the end of the Funding
Period in which the Authorised Investments were acquired
provided that all amounts received by the Trustee on that
maturity must be credited to the Collateral Account; or
(vii) to refund to the Liquidity Facility Provider the amount of any
of the Liquidity Limit which is cancelled under clause 7.1.
(b) The Trust Manager must only direct the Trustee to make withdrawals
from the Collateral Account for the above purposes.
(c) For so long as the Collateral Account is maintained with the
Liquidity Provider, the obligations of the Liquidity Provider with
respect to payment to the Trustee of the debt constituted by any
credit balance on the Collateral Account shall be conditional upon
and subject to the terms of this clause 3.
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3.8 Liquidity Provider upgrade
(a) If, at any time when the Collateral Account is not maintained with
the Liquidity Provider, a short term credit rating of the Liquidity
Provider is upgraded so that it has a rating from S&P of not lower
than A-1 and from Moody's of not lower than P-1, the Trust Manager
must direct the Trustee to, and the Trustee must within 2 Business
Days of being so directed, arrange for the Cash Advance Deposit to
be transferred to an account with the Liquidity Provider (which
account will then become the Collateral Account).
(b) If at any time during a Liquidity Collateralisation Period a short
term credit rating of the Liquidity Provider is upgraded so that it
has a rating from S&P of A-1 and from Moody's of P-1, the Trust
Manager must direct the Trustee to, and the Trustee must within 2
Business Days of being so directed, repay to the Liquidity Provider
the balance of the Collateral Account.
3.9 Interest Cash Advance Deposit
All interest accrued on the Cash Advance Deposit shall belong to the
Liquidity Provider and all interest credited to the Cash Advance Deposit
shall be paid to the Liquidity Provider on each relevant Payment Date in
accordance with the Series Notice.
4. Funding Periods
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(a) Subject to this clause, the Funding Period for a Liquidity Draw
commences on its Drawdown Date and ends on the day before the
Payment Date in the Quarter following the Quarter in which that
Drawdown Date occurred.
(b) Notwithstanding paragraph (a), no Funding Period may extend beyond
the Final Repayment Date.
5. Interest
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5.1 Accrual
Interest accrues daily on the outstanding principal amount of each
Liquidity Draw at the rate per annum equal to the sum of the Margin and
the Bank Xxxx Rate for the relevant Funding Period, calculated on actual
days elapsed and a year of 365 days.
5.2 Payment
The Trustee shall pay accrued interest on each Liquidity Draw in respect
of its Funding Period in arrear on each Payment Date and on repayment or
prepayment of all or the relevant part of the Liquidity Draw.
5.3 Capitalisation
Interest payable under this clause 5 which is not paid when due will
immediately be capitalised. Interest is payable on capitalised interest at
the rate and in the manner referred to in this clause 5.
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6. Commitment Fee
(a) A commitment fee accrues due from day to day from the date of this
agreement at 0.25% per annum on the daily amount of the Available
Liquidity Amount (if any).
(b) The commitment fee is calculated on the actual number of days
elapsed and a year of 365 days.
(c) The Trust Manager directs the Trustee to, and the Trustee shall, pay
to the Liquidity Provider any accrued commitment fee in arrears on:
(i) each Payment Date; and
(ii) at the end of the Term,
in accordance with the Series Notice.
7. Cancellation of Liquidity Limit
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7.1 During Term
On giving not less than 5 Business Days irrevocable notice to the
Liquidity Provider the Trustee may cancel all or part of the Liquidity
Limit during the Term if each Designated Rating Agency has confirmed that
such cancellation will not result in a downgrading, withdrawal or
qualification of the credit rating assigned by each of the Designated
Rating Agencies to the Notes. A partial cancellation must be in a minimum
of $100,000 and a whole multiple of $10,000 unless the Liquidity Provider
agrees otherwise.
7.2 At end of Term
At the close of business (Sydney time) on the last day of the Term the
Liquidity Limit will be cancelled.
8. Repayment
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8.1 Final repayment
The Trustee shall repay the Liquidity Outstandings on the Final Repayment
Date, together with all interest and other moneys owing to the Liquidity
Provider under this agreement.
8.2 Repayment of Liquidity Draws
Subject to the terms of this agreement, the Trustee must repay each
Liquidity Draw on the last day of its Funding Period, to the extent that
amounts are available for that purpose under clause 6.10(a)(iv) of the
Series Notice. Those repayments will be applied against Liquidity Draws in
chronological order of their Drawdown Dates.
8.3 Repayments during Liquidity Collateralisation Period
During a Liquidity Collateralisation Period, all repayments or prepayments
in respect of Liquidity Outstandings must be made to the Collateral
Account.
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9. Prepayments
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9.1 Voluntary prepayments
The Trustee may prepay all or part of the Liquidity Outstandings with the
consent of the Liquidity Provider and on at least 5 Business Days' notice.
The Trustee shall prepay in accordance with that notice.
9.2 Interest
When the Trustee prepays any amount of the Liquidity Outstandings, it
shall also pay any interest accrued on that amount.
9.3 Limitation on prepayments
The Trustee may not prepay all or any part of the Liquidity Outstandings
except as set out in this agreement.
10. Payments
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10.1 Manner
Subject to clause 8.3, the Trustee shall make all payments under this
agreement:
(a) by cheque, electronic funds transfer or other agreed method to the
Liquidity Provider at its address for service of notices or by
transfer of immediately available funds to the account specified by
the Liquidity Provider and, in either case, by 4.00 pm (Sydney time)
on the due date; and
(b) without set-off, counterclaim or other deduction, except any
compulsory deduction for Taxation; and
(c) in accordance with the directions of the Trust Manager, the Master
Trust Deed and the Series Notice.
10.2 Payment to be made on Business Day
If any payment is due on a day which is not a Business Day, the due date
will be the next Business Day.
10.3 Appropriation where insufficient moneys available
Subject to any express provision of this agreement, the Liquidity Provider
may appropriate amounts it receives as between principal, interest and
other amounts then payable as it sees fit. This will override any
appropriation made by the Trustee.
11. Changes In Law
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11.1 Additional payments
Whenever the Liquidity Provider determines that:
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(a) the effective cost to the Liquidity Provider of making, funding or
maintaining any Liquidity Draw or the Liquidity Limit is increased
in any way;
(b) any amount paid or payable to the Liquidity Provider or received or
receivable by the Liquidity Provider, or the effective return to the
Liquidity Provider, under or in respect of this agreement is reduced
in any way;
(c) the return of the Liquidity Provider on the capital which is or
becomes directly or indirectly allocated by the Liquidity Provider
to any Liquidity Draw or the Liquidity Limit is reduced in any way;
or
(d) to the extent any relevant law, official directive or request
relates to or affects the Liquidity Limit, any Liquidity Draw or
this agreement, the overall return on capital of the Liquidity
Provider or any of its holding companies is reduced in any way,
as a result of any change in, any making of or any change in the
interpretation or application by any Government Agency of, any law,
official directive or request, then:
(e) (when it has calculated the effect of the above and the amount to be
charged to the Trustee under this clause) the Liquidity Provider
shall promptly notify the Trust Manager and the Trustee; and
(f) on the following Payment Date the Trustee shall, subject to clause 6
of the Series Notice, pay for the account of the Liquidity Provider
the amount certified by an Authorised Signatory of the Liquidity
Provider to be necessary to compensate the Liquidity Provider for
the increased cost or the reduction (from the date of the notice).
Without limiting the above in any way, this clause applies:
(g) to any law, official directive or request with respect to Taxation
(other than any Tax on the net income of any person) or reserve,
liquidity, capital adequacy, special deposit or similar
requirements;
(h) to official directives or requests which do not have the force of
law where it is the practice of responsible bankers or financial
institutions in the country concerned to comply with them; and
(i) where the increased cost or the reduction arises because the
Liquidity Provider is restricted in its capacity to enter other
transactions, is required to make a payment, or forgoes or earns
reduced interest or other return on any capital or on any sum
calculated by reference in any way to the amount of any Liquidity
Draw, the Liquidity Limit or to any other amount paid or payable or
received or receivable under this agreement or allocates capital to
any such sum.
11.2 Minimisation
(a) (No defence) If the Liquidity Provider has acted in good faith it
will not be a defence that any cost, reduction or payment referred
to in this clause could have been avoided.
(b) (Minimisation) The Liquidity Provider shall use reasonable
endeavours to minimise any cost, reduction or payment referred to in
this clause.
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11.3 Survival
This clause survives the repayment of any relevant Liquidity Draw and the
termination of this agreement.
12. Conditions Precedent
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12.1 Conditions precedent to initial Drawdown Notice
The right of the Trustee to give the initial Drawdown Notice and the
obligations of the Liquidity Provider under this agreement are subject to
the condition precedent that the Liquidity Provider receives all of the
following in form and substance satisfactory to the Liquidity Provider:
(a) (verification certificate) a certificate in relation to the Trustee
given by a director of the Trustee substantially in the form of
annexure B with the attachments referred to and dated not earlier
than 14 days before the first Drawdown Date;
(b) (Trust Documents) a certified copy of each duly executed and (where
relevant) stamped Trust Document;
(c) (Master Trust Deed conditions precedent) evidence that the
conditions precedent referred to in clause 13 of the Master Trust
Deed have been satisfied;
(d) (Security Trust Deed) evidence that the Security Trust Deed has been
or will be registered with each relevant Governmental Agency free
from all prior Security Interests and third party rights and
interests; and
(e) (Notes) evidence that the Notes have been issued.
12.2 Conditions precedent to each Liquidity Draw
The obligations of the Liquidity Provider to make available each Liquidity
Draw are subject to the further conditions precedent that no Event of
Default subsists at the date of the relevant Drawdown Notice and the
relevant Drawdown Date or will result from the provision of the Liquidity
Draw.
13. Representations and Warranties
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13.1 Representations and warranties
The Trustee, in its capacity as trustee of the Trust, makes the following
representations and warranties (so far as they relate to the Trust).
(a) (Status) It is a corporation validly existing under the laws of the
place of its incorporation specified in this agreement.
(b) (Power) It has the power to enter into and perform its obligations
under the Trust Documents to which it is expressed to be a party, to
carry out the transactions contemplated by those documents and to
carry on its business as now conducted or contemplated.
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(c) (Corporate authorisations) It has taken all necessary corporate
action to authorise the entry into and performance of the Trust
Documents to which it is expressed to be a party, and to carry out
the transactions contemplated by those documents.
(d) (Documents binding) Each Trust Document to which it is expressed to
be a party is its valid and binding obligation enforceable in
accordance with its terms, subject to any necessary stamping and
registration and to laws, defences and principles of equity
generally affecting creditors' rights.
(e) (Transactions permitted) The execution and performance by it of the
Trust Documents to which it is expressed to be a party and each
transaction contemplated under those documents do not violate in any
respect a provision of:
(i) a law or treaty or a judgment, ruling, order or decree of a
Government Body binding on it;
(ii) its constitution or other constituent documents; or
(iii) any other document or agreement which is binding on it or its
assets,
and, except as provided by the Trust Documents, did not and will
not:
(iv) create or impose a Security Interest on any of its assets; or
(v) allow a person to accelerate or cancel an obligation with
respect to any indebtedness in respect of financial
accommodation, or constitute an event of default, cancellation
event, prepayment event or similar event (whatever called)
under an agreement relating to any such indebtedness, whether
immediately or after notice or lapse of time or both.
(f) (Authorisations) Each Authorisation which is required in relation
to:
(i) the execution, delivery and performance by it of the Trust
Documents to which it is expressed to be a party and the
transactions contemplated by those documents;
(ii) the validity and enforceability of those documents; and
(iii) its business as now conducted or contemplated and which is
material,
has been obtained or effected. Each is in full force and effect. It
has complied with each of them. It has paid all applicable fees for
each of them.
(g) (No misrepresentation) All information provided by it to the
Liquidity Provider is true in all material respects at the date of
this agreement or, if later, when provided.
(h) (Agreements disclosed) Each document or agreement to which it is a
party which is material to the Trust Documents or which has the
effect of varying a Trust Document has been disclosed to the
Liquidity Provider in writing.
(i) (Trust) The Trust has been validly created and is in existence at
the date of this agreement.
(j) (Trust power) It is empowered by the Master Trust Deed:
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(i) to enter into and perform the Trust Documents to which it is
expressed to be a party and to carry on the transactions
contemplated by those documents; and
(ii) to carry on the business of the Trust and to own the Assets of
the Trust,
in its capacity as trustee of the Trust. There is no restriction on
or condition of its doing so.
(k) (Trust authorisations) All necessary resolutions have been duly
passed and all consents, approvals and other procedural matters have
been obtained or attended to as required by the Master Trust Deed
for it to enter into and perform the Trust Documents to which it is
expressed to be a party.
(l) (Sole trustee) It has been validly appointed as trustee of the Trust
and is the sole trustee of the Trust.
(m) (Removal) No notice has been given to it, and so far as it is aware
no resolution has been passed or direction or notice has been given
removing it as trustee of the Trust.
(n) (No resettlement) Other than as permitted by the Trust Documents, it
has not taken any action that will cause the property of the Trust
to be re-settled, set aside or transferred to any other trust.
(o) (No termination) It has not taken any action that will cause the
Trust to be terminated, nor has it taken any action that will result
in the vesting of the assets of the Trust.
(p) (Right of indemnity) It has not taken any action which will limit
its right of indemnity out of, and lien over, the Assets of the
Trust.
(q) (Compliance with Master Trust Deed) It has complied with its
obligations and duties under the Master Trust Deed, the Series
Notice and (to the best of its knowledge and belief) at law. No one
has alleged that it has not so complied.
13.2 Reliance on representations and warranties
The Trustee acknowledges that the Liquidity Provider has entered the Trust
Documents in reliance on the representations and warranties in this
clause.
14. Undertakings
--------------------------------------------------------------------------------
14.1 General undertakings
Each of the Trustee and the Trust Manager undertake to the Liquidity
Provider as follows in relation to the Trust, except to the extent that
the Liquidity Provider consents.
(a) (Authorisations) It will ensure that each Authorisation required
for:
(i) the execution, delivery and performance by it of the Trust
Documents to which it is expressed to be a party and the
transactions contemplated by those documents;
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(ii) the validity and enforceability of those documents; and
(iii) the carrying on by it of its business as now conducted or
contemplated,
is obtained and promptly renewed and maintained in full force and
effect. It will pay all applicable fees for them. It will provide
copies promptly to the Liquidity Provider when they are obtained or
renewed.
(b) (Negative pledge) It will not create or allow to exist a Security
Interest over the Assets of the Trust other than:
(i) under the Trust Documents; or
(ii) a lien arising by operation of law in the ordinary course of
day-to-day trading and not securing indebtedness in respect of
financial accommodation where it duly pays the indebtedness
secured by that lien other than indebtedness contested in good
faith.
(c) (Comply with obligations) It will duly and punctually comply with
its obligations under the Trust Documents.
(d) (Notice to Liquidity Provider) It will notify the Liquidity Provider
and each Designated Rating Agency as soon as it becomes aware of:
(i) any Event of Default; and
(ii) any proposal by a Government Agency to acquire compulsorily
any Assets of the Trust.
14.2 Undertakings relating to Trust
The Trustee, as trustee of the Trust, undertakes to the Liquidity Provider
as follows, except to the extent that the Liquidity Provider consents.
(a) (Amendment to Master Trust Deed) It will not consent to any
amendment to the Master Trust Deed, the Series Notice or any other
Trust Document if it would change:
(i) the basis upon which the amount of any Liquidity Draw to be
made is calculated;
(ii) the entitlement of the Trustee to make any Liquidity Draw; or
(iii) the basis of calculation or order of application of any amount
to be paid or applied under clause 6 of the Series Notice.
(b) (Resettlement) It will not take any action that will result in a
resettlement, setting aside or transfer of any asset of the Trust
other than a transfer which complies with the Master Trust Deed, the
Series Notice and the other Trust Documents.
(c) (No additional trustee) It will act continuously as trustee of the
Trust in accordance with the Master Trust Deed until the Trust has
been terminated or until it has retired or been removed in
accordance with the Master Trust Deed.
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14.3 Term of undertakings
Each undertaking in this clause continues from the date of this agreement
until all moneys actually or contingently owing under this agreement are
fully and finally repaid.
15. Events of Default
--------------------------------------------------------------------------------
15.1 Events of Default
Each of the following is an Event of Default (whether or not it is in the
control of the Trustee).
(a) (Payments)
(i) At any time the Available Liquidity Amount is zero, the
Trustee fails to pay an amount payable by it under this
agreement within 10 Business Days of its due date.
(ii) An amount is available for payment under clause 8 and the
Trustee does not pay that amount.
(b) (Insolvency Event) An Insolvency Event occurs:
(i) in relation to the Trust (as if it was a relevant corporation
for the purposes of the definition of Insolvency Event); or
(ii) in relation to the Trustee, and a successor trustee of the
Trust is not appointed with 30 days of that Insolvency Event.
(c) (Termination Date) The Termination Date occurs in relation to the
Trust.
(d) (Vitiation) All or any part of this agreement is terminated or is or
becomes void, illegal, invalid or unenforceable.
15.2 Consequences
In addition to any other rights provided by law or any Trust Document, at
any time after an Event of Default (whether or not it is continuing) the
Liquidity Provider may do all or any of the following:
(a) by notice to the Trustee and the Trust Manager declare all moneys
actually or contingently owing under this agreement immediately due
and payable, and the Trustee will immediately pay the Liquidity
Outstandings together with accrued interest and fees and all such
other moneys; and
(b) by notice to the Trustee and the Trust Manager cancel the Liquidity
Limit with effect from any date specified in that notice.
16. Interest on Overdue Amounts
--------------------------------------------------------------------------------
16.1 Accrual
Interest accrues on each unpaid amount which is due and payable by the
Trustee under or in respect of this agreement (including interest payable
under this clause):
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(a) on a daily basis up to the date of actual payment from (and
including) the due date or, in the case of an amount payable by way
of reimbursement or indemnity, the date of disbursement or loss, if
earlier;
(b) both before and after judgment (as a separate and independent
obligation); and
(c) at the rate determined by the Liquidity Provider to be the sum of 2%
per annum plus the higher of:
(i) the rate (if any) applicable to the unpaid amount immediately
before the due date; and
(ii) the One Month Bank Xxxx Rate on the first day of each Funding
Period, plus the Margin.
16.2 Payment
The Trustee shall pay interest accrued under this clause on demand and on
each Payment Date, to the extent that amounts are available for that
purpose under clause 6.10(a)(iii) of the Series Notice.
16.3 Limitation
Clause 16.1 will only apply in relation to any unpaid Liquidity Draw if,
at the time the Liquidity Draw was required to be paid, the aggregate of
all Liquidity Draws was equal to or greater than the Liquidity Limit.
17. Control Accounts
--------------------------------------------------------------------------------
The accounts kept by the Liquidity Provider constitute sufficient
evidence, unless proven wrong, of the amount at any time due from the
Trustee under this agreement.
18. Waivers, Remedies Cumulative
--------------------------------------------------------------------------------
(a) No failure to exercise and no delay in exercising any right, power
or remedy under this agreement operates as a waiver. Nor does any
single or partial exercise of any right, power or remedy preclude
any other or further exercise of that or any other right, power or
remedy.
(b) The rights, powers and remedies provided to the Liquidity Provider
in this agreement are in addition to, and do not exclude or limit,
any right, power or remedy provided by law.
19. Severability of Provisions
--------------------------------------------------------------------------------
Any provision of this agreement which is prohibited or unenforceable in
any jurisdiction is ineffective as to that jurisdiction to the extent of
the prohibition or unenforceability. That does not invalidate the
remaining provisions of this agreement nor affect the validity or
enforceability of that provision in any other jurisdiction.
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20. Survival of Representations
--------------------------------------------------------------------------------
All representations and warranties in this agreement survive the execution
and delivery of this agreement and the provision of advances and
accommodation.
21. Indemnity and Reimbursement Obligation
Unless stated otherwise, each indemnity, reimbursement or similar
obligation in this agreement:
(a) is a continuing obligation;
(b) is a separate and independent obligation;
(c) is payable on demand; and
(d) survives termination or discharge of this agreement.
22. Moratorium Legislation
--------------------------------------------------------------------------------
To the full extent permitted by law all legislation which at any time
directly or indirectly:
(a) lessens, varies or affects in favour of the Trustee any obligation
under a Trust Document; or
(b) delays, prevents or prejudicially affects the exercise by the
Liquidity Provider of any right, power or remedy conferred by this
agreement,
is excluded from this agreement.
23. Consents and Opinions
--------------------------------------------------------------------------------
Except where expressly stated the Liquidity Provider may give or withhold,
or give conditionally, approvals and consents, may be satisfied or
unsatisfied, may form opinions, and may exercise its rights, powers and
remedies, at its absolute discretion.
24. Assignments
--------------------------------------------------------------------------------
No party may assign or transfer any of its rights or obligations under
this agreement without the prior written consent of the other parties, or
if the rating of the Notes would be withdrawn or reduced as a result of
the assignment.
25. Notices
--------------------------------------------------------------------------------
All notices, requests, demands, consents, approvals, agreements or other
communications to or by a party to this agreement:
(a) must be in writing;
(b) must be signed by an Authorised Signatory of the sender; and
(c) will be taken to be duly given or made:
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(i) (in the case of delivery in person or by post) when delivered,
received or left at the address of the recipient shown in this
agreement or to any other address which it may have notified
the sender;
(ii) (in the case of facsimile transmission) on receipt of a
transmission report confirming successful transmission; and
(iii) (in the case of a telex) on receipt by the sender of the
answerback code of the recipient at the end of transmission,
but if delivery or receipt is on a day on which business is not
generally carried on in the place to which the communication is sent
or is later than 4.00 pm (local time), it will be taken to have been
duly given or made at the commencement of business on the next day
on which business is generally carried on in that place.
26. Authorised Signatories
--------------------------------------------------------------------------------
The Trustee irrevocably authorises the Liquidity Provider to rely on a
certificate by persons purporting to be its directors and/or secretaries
as to the identity and signatures of its Authorised Signatories. The
Trustee warrants that those persons have been authorised to give notices
and communications under or in connection with this agreement.
27. Governing Law and Jurisdiction
--------------------------------------------------------------------------------
This agreement is governed by the laws of New South Wales. The Trustee
submits to the non-exclusive jurisdiction of courts exercising
jurisdiction there.
28. Counterparts
--------------------------------------------------------------------------------
This agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
29. Acknowledgement by Trustee
--------------------------------------------------------------------------------
The Trustee confirms that:
(a) it has not entered into this agreement in reliance on, or as a
result of, any statement or conduct of any kind of or on behalf of
the Liquidity Provider (including any advice, warranty,
representation or undertaking); and
(b) the Liquidity Provider is not obliged to do anything (including
disclose anything or give advice),
except as expressly set out in this agreement.
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30. Limited Recourse
--------------------------------------------------------------------------------
30.1 General
Clause 33 of the Master Trust Deed applies to the obligations and
liabilities of the Trustee and the Trust Manager under this agreement.
30.2 Liability of Trustee limited to its right to indemnity
(a) The Trustee enters into this agreement only in its capacity as
trustee of the Trust and in no other capacity. A liability arising
under or in connection with this agreement or the Trust can be
enforced against the Trustee only to the extent to which it can be
satisfied out of property of the Trust out of which the Trustee is
actually indemnified for the liability. This limitation of the
Trustee's liability applies despite any other provision of this
agreement and extends to all liabilities and obligations of the
Trustee in any way connected with any representation, warranty,
conduct, omission, agreement or transaction related to this
agreement or the Trust.
(b) The parties other than the Trustee may not xxx the Trustee in any
capacity other than as trustee of the Trust or seek the appointment
of a receiver (except under the Security Trust Deed), or a
liquidator, an administrator or any similar person to the Trustee or
prove in any liquidation, administration or arrangements of or
affecting the Trustee.
(c) The provisions of this clause 30 shall not apply to any obligation
or liability of the Trustee to the extent that it is not satisfied
because under a Transaction Document or by operation of law there is
a reduction in the extent of the Trustee's indemnification out of
the Assets of the Trust as a result of the Trustee's fraud,
negligence or breach of trust.
(d) It is acknowledged that the Trust Manager, the Servicer, the
Currency Swap Providers, the Note Trustee, the Principal Paying
Agent, the other Paying Agents and the Agent Bank (each a Relevant
Party) are responsible under this agreement and the other
Transaction Documents for performing a variety of obligations
relating to the Trust. No act or omission of the Trustee (including
any related failure to satisfy its obligations under this agreement)
will be considered fraud, negligence or breach of trust of the
Trustee for the purpose of sub-paragraph (c) to the extent to which
the act or omission was caused or contributed to by any failure by
any Relevant Party or any other person who provides services in
respect of the Trust (other than a person who has been delegated or
appointed by the Trustee and for whom the Trustee is responsible
under this agreement or the relevant Transaction Documents, but
excluding any Relevant Party) to fulfil its obligations relating to
the Trust or by any other act or omission of a Relevant Party or any
other person who provides services in respect of the Trust (other
than a person who has been delegated or appointed by the Trustee and
for whom the Trustee is responsible under this agreement or the
relevant Transaction Documents, but excluding any Relevant Party).
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(e) No attorney, agent, receiver or receiver and manager appointed in
accordance with this agreement or any other Transaction Documents
(including a Relevant Party) has authority to act on behalf of the
Trustee in a way which exposes the Trustee to any personal liability
and no act or omission of any such person will be considered fraud,
negligence or breach of trust of the Trustee for the purpose of
sub-paragraph (c), if the Trustee has exercised reasonable care in
the selection and supervision of such a person.
30.3 Unrestricted remedies
Nothing in clause 30.2 limits the Liquidity Provider in:
(a) obtaining an injunction or other order to restrain any breach of
this agreement by any party;
(b) obtaining declaratory relief; or
(c) relation to its rights under the Security Trust Deed.
30.4 Restricted remedies
Except as provided in clause 30.3, the Liquidity Provider shall not:
(a) (judgment) obtain a judgment for the payment of money or damages by
the Trustee;
(b) (statutory demand) issue any demand under s459E(1) of the
Corporations Act (or any analogous provision under any other law)
against the Trustee;
(c) (winding up) apply for the winding up or dissolution of the Trustee;
(d) (execution) levy or enforce any distress or other execution to, on,
or against any assets of the Trustee;
(e) (court appointed receiver) apply for the appointment by a court of a
receiver to any of the assets of the Trustee;
(f) (set-off or counterclaim) exercise or seek to exercise any set-off
or counterclaim against the Trustee; or
(g) (administrator) appoint, or agree to the appointment, of any
administrator to the Trustee,
or take proceedings for any of the above and the Liquidity Provider waives
its rights to make those applications and take those proceedings.
31. Liquidity Provider's Obligations
--------------------------------------------------------------------------------
The Trustee shall have no recourse to the Liquidity Provider in relation
to this agreement beyond its terms, and the Liquidity Provider's
obligations under this agreement are separate from, and independent to,
any obligations the Liquidity Provider may have to the Trustee for any
other reason (including under any other Trust Document).
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32. Successor Trustee
--------------------------------------------------------------------------------
The Liquidity Provider shall do all things reasonably necessary to enable
any successor Trustee appointed under clause 24 of the Master Trust Deed
to become the Trustee under this agreement.
EXECUTED in Sydney.
Each attorney executing this agreement states that he has no notice of
revocation or suspension of his power of attorney.
SIGNED on behalf of )
WESTPAC SECURITIES )
ADMINISTRATION LIMITED )
by its attorney )
in the presence of: ) /s/ Xxxxxx Xxxxxx Xxxxxxxx
------------------------------
Signature
/s/ Stuart Xxxxxxxx Xxxxxx Xxxxxx Xxxxxxxx
----------------------------------------------- ------------------------------
Witness Print name
Xxxxxx Xxxxxxxx
-----------------------------------------------
Print name
SIGNED on behalf of )
WESTPAC BANKING CORPORATION )
by its attorneys )
in the presence of: ) /s/ G.P.D. Xxxxxx
------------------------------
Signature
/s/ Xxxxxx Xxxxxxxx G.P.D. Xxxxxx
----------------------------------------------- ------------------------------
Witness Print name
Xxxxxx Xxxxxxxx /s/ Xxxxx Xxxxxxx
----------------------------------------------- ------------------------------
Print name Signature
Xxxxx Xxxxxxx
------------------------------
Print name
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SIGNED on behalf of )
WESTPAC SECURITISATION )
MANAGEMENT PTY LIMITED )
by its attorney )
in the presence of: ) /s/ G.P.D. Xxxxxx
---------------------------------
Signature
/s/ Xxxxxx Xxxxxxxx G.P.D. Xxxxxx
------------------------------ ---------------------------------
Witness Print name
Xxxxxx Xxxxxxxx
------------------------------
Print name
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ANNEXURE A
DRAWDOWN NOTICE
--------------------------------------------------------------------------------
To: Westpac Banking Corporation
LIQUIDITY FACILITY AGREEMENT - DRAWDOWN NOTICE NO. [*]
We refer to the Liquidity Facility Agreement dated [*] 2002 (the Facility
Agreement).
Under clause 3.1 of the Liquidity Facility Agreement we give you irrevocable
notice as follows:
(1) we wish to draw on [*] (the Drawdown Date); [NOTE: Date is to be a
Business Day.]
(2) the total principal amount to be drawn is [*]; [NOTE: Amount to comply
with the limits in clause 3.]
(3) particulars of [each/the] Liquidity Draw are as follows:
Principal amount Funding Period
[NOTE: Length of Funding Period to comply with clause 4.]
(4) we request that the proceeds be remitted to account number [*] at [*];
[NOTE: The account(s) to be completed only if funds not required in
repayment of any previous Liquidity Draw(s).]
(5) we represent and warrant that no Event of Default under the Facility
Agreement subsists or will result from the drawing.
Definitions in the Facility Agreement apply in this Drawdown Notice.
WESTPAC SECURITIES ADMINISTRATION LIMITED as trustee of the Series 0000-0X XXX
Trust
By: [Authorised Signatory]
DATED
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ANNEXURE B
VERIFICATION CERTIFICATE
--------------------------------------------------------------------------------
To: Westpac Banking Corporation
LIQUIDITY FACILITY AGREEMENT
I [*] am a [director] of Westpac Securities Administration Limited (the
Company).
I refer to the Liquidity Facility Agreement (the Facility Agreement) dated [*]
2002 between the Company as Trustee, Westpac Banking Corporation and Westpac
Securitisation Management Pty Limited.
Definitions in the Facility Agreement apply in this Certificate.
I CERTIFY as follows.
1. Attached to this Certificate are complete and up to date copies of:
(a) unless paragraph 2 below applies, the constitution of the Company
(marked A); and
(b) a power of attorney granted by the Company for the execution of the
Facility Agreement to which it is expressed to be a party (marked
B). That power of attorney has not been revoked or suspended by the
Company and remains in full force and effect.
2. If the constitution of the Company is not attached to this certificate,
there has been no change to them since the Company last gave a certified
copy of them to Westpac Banking Corporation.
3. The following are signatures of the Authorised Signatories of the Company
and the persons who have been authorised to sign the Facility Agreement
and to give notices and communications under or in connection with the
Facility Agreement. If no signatures are set out below, the Authorised
Signatories with respect to the Facility Agreement are the same as in
relation to the Series 0000-0X XXX Xxxxx, a copy of those signatures
having previously been provided to Westpac Banking Corporation.
Authorised Signatories
Name Position Signature
* * _____________________
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* * _____________________
* * _____________________
Signatories
Name Position Signature
* * _____________________
* * _____________________
* * _____________________
Signed: _________________________
Director
_________________________
Print name
DATED
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