Exhibit 10.9
Payment Funding Facility Agreement
for the Issue and Repayment of Notes
- SMHL Global Fund No. 9
Perpetual Limited
ABN 86 000 000 000
and
ME Portfolio Management Limited
ABN 79 005 964 134
Freehills
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MLC Centre Xxxxxx Xxxxx Xxxxxx Xxx Xxxxx Xxxxx 0000 Xxxxxxxxx
Telephone x00 0 0000 0000 Facsimile x00 0 0000 0000
xxx.xxxxxxxxx.xxx DX 000 Xxxxxx
XXXXXX XXXXXXXXX XXXXX XXXXXXXX SINGAPORE
Correspondent Offices HANOI HO CHI MINH CITY JAKARTA KUALA LUMPUR
Reference LGR:OMT:36G
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Table of contents
Clause Page
1 Definitions and interpretation 2
1.1 Definitions 2
1.2 Interpretation 6
1.3 Banking Day 8
1.4 Transaction Document 8
2 The Notes 8
2.1 Application for and Issue of Notes 8
2.2 Acknowledgment of Indebtedness 9
2.3 Obligations under Notes 9
2.4 Ownership of Notes 9
2.5 Register 9
3 Purpose 9
4 Funding procedures 10
4.1 Delivery of Funding Notice 10
4.2 Requirements for a Funding Notice 10
4.3 Copy of the Funding Notice to be provided to the Issuer 10
4.4 Irrevocability of Funding Notice 10
5 Loan Facility 11
5.1 Provision of Funding Portions 11
5.2 Repayment of Outstanding Moneys 11
5.3 Interest 11
5.4 Order of Repayment 12
5.5 Acknowledgments 12
6 Payments 13
6.1 Manner of payments 13
6.2 Payments on a Banking Day 13
6.3 Appropriation of payments 13
6.4 Payments in gross 14
6.5 Taxation deduction procedures 14
6.6 Amounts payable on demand 14
7 Representations and warranties 14
7.1 By the Issuer 14
7.2 By the SF Manager 15
7.3 Survival and repetition of representations and warranties 16
7.4 Reliance by the Note Holder and OF Manager 16
8 Undertakings 16
8.1 Term of undertakings 16
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8.2 Compliance with Covenants 16
8.3 Notify Events of Default 17
8.4 Know your customer 17
8.5 Compliance with Regulation AB 17
8.6 Direction of claims by the SF Manager 22
8.7 Direction of defence of claims 23
9 Events of Default 23
9.1 Operation of clause 9 23
9.2 Effect of Event of Default 24
9.3 Issuer to continue to perform 24
9.4 Enforcement 24
10 Trustee Limitation of Liability Protection 24
10.1 Limitation of Liability - Issuer 24
10.2 Limitation of Liability - Note Holder 25
10.3 Wilful Default of the Issuer and the Note Holder 26
11 Indemnities 27
11.1 General indemnity 27
11.2 Continuing indemnities and evidence of loss 28
11.3 Funds available for indemnity 28
11.4 Negligence, wilful default or breach of law 28
11.5 Notification from Note Holder or OF Manager 28
12 Tax, costs and expenses 29
12.1 Tax 29
12.2 Costs and expenses 29
12.3 Goods and services tax 30
13 Interest on overdue amounts 30
13.1 Payment of interest 30
13.2 Accrual of interest 30
13.3 Rate of interest 31
14 Assignment 31
14.1 Assignment by Transaction Party 31
14.2 Assignment by Note Holder and OF Manager 31
14.3 Assist transfer or assignment 31
14.4 Participation permitted 31
14.5 Lending Office 31
14.6 Disclosure 31
14.7 No increase in costs 32
15 General 32
15.1 Confidential information 32
15.2 Performance by Note Holder of obligations 32
15.3 Transaction Party to bear cost 32
15.4 Notices 32
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15.5 Governing law and jurisdiction 34
15.6 Prohibition and enforceability 34
15.7 Waivers 34
15.8 Variation 34
15.9 Cumulative rights 35
15.10 Attorneys 35
15.11 Binding Obligations 35
15.12 Winding up of Securitisation Fund 35
15.13 Termination 35
15.14 Counterparts 35
Schedule 3 - Report on assessment of compliance with
Regulation AB servicing criteria 42
Schedule 4 - Servicing Criteria to be addressed in assessment
of compliance 43
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
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This Payment Funding Facility Agreement
is made on 21 September 2006 between the following parties:
1 Perpetual Limited
ABN 86 000 000 000
in its capacity as trustee of the Securitisation
Fund (as hereinafter defined) of Xxxxx 00, 000 Xxxx
Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx
(Issuer)
2 Perpetual Limited
ABN 86 000 000 000
in its capacity as trustee of the Origination Fund
(as hereinafter defined) of Xxxxx 00, 000 Xxxx
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:
Payment Funding Facility Agreement - SMHL Global Fund No. 9
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1 Definitions and interpretation
1.1 Definitions
In this agreement, unless the context otherwise requires:
Attorney means an attorney appointed under a Material
Document;
Authorisation includes:
(a) any consent, registration, filing, agreement,
notarisation, certificate, licence, approval, permit,
authority or exemption from, by or with a Governmental
Agency; and
(b) any consent or authorisation regarded as given by a
Governmental Agency due to the expiration of the period
specified by a statute within which the Governmental
Agency should have acted if it wished to proscribe or
limit anything already lodged, registered or notified
under that statute;
Authorised Investments has the meaning given to it in the
Master Trust Deed;
Bank has the meaning given to it in the Master Trust Deed;
Banking Day means a day on which Banks are open for business
in Melbourne and Sydney excluding a Saturday, Sunday or
public holiday;
Bond Issue Date has the meaning given to it in the Master
Trust Deed;
Bond Issue Direction has the meaning given to it in the
Master Trust Deed;
Charge means the charge created under the Security Trust Deed;
Class A Note has the meaning given to it in the
Supplementary Bond Terms Notice;
Class B Note has the meaning given to it in the
Supplementary Bond Terms Notice;
Collections has the meaning given to it in the Supplementary
Bond Terms Notice;
Commission has the meaning given to it in the Supplementary
Bond Terms Notice;
Conditions means the terms and conditions as set out in
schedule 2;
Designated Rating Agency has the meaning given to it in the
Master Trust Deed;
Dollars, A$ and $ means the lawful currency of the
Commonwealth of Australia;
Encumbrance means an interest or power:
(a) reserved in or over an interest in any asset including,
but not limited to, any retention of title; or
(b) created or otherwise arising in or over any interest in
any asset under a xxxx of sale, mortgage, charge, lien,
pledge, trust or power,
by way of security for the payment of a debt, any other
monetary obligation or the performance of any other
obligation, and includes, but is not limited to, any
agreement to grant or create any of the above;
Entity has the same meaning as in Chapter 2E of the
Corporations Act;
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
Event of Default means an Event of Default as defined in the
Security Trust Deed;
Exchange Act has the meaning given to it in the
Supplementary Bond Terms Notice;
Excluded Tax means any Tax imposed by any jurisdiction on
the net income of the Note Holder;
Facility means the payment funding facility made available
by the Note Holder to the Issuer under this agreement (by
purchase of Notes);
Fitch Ratings means Fitch Australia Pty Ltd;
Funding Date means the date on which a Note will be issued
(as stipulated in the Funding Notice) and the date on which
a Funding Portion is, or is to be, advanced or regarded as
advanced to the Issuer under this agreement;
Funding Notice means a notice given, or to be given, under
clauses 4.1 and 4.2;
Funding Portion means in relation to any Note, the principal
amount of that Note to be provided or outstanding at that
time (as the case may be);
Governmental Agency means any government or any
governmental, semi-governmental, administrative, fiscal or
judicial body, department, commission, authority, tribunal,
agency or entity;
GST has the same meaning as in the A New Tax System (Goods
and Services Tax) Xxx 0000;
Interest Amount means for any Payment Period all of the net
income derived from the investment of the net proceeds of
the Principal Outstanding for that Payment Period;
Lending Office means the office of the Note Holder set out
in clause 15.4(a)(1)(A) or such other office as notified by
the Note Holder under this agreement;
Liquidity Notes has the meaning given to it in the
Supplementary Bond Terms Notice;
Master Trust Deed means the Master Trust Deed dated 4 July
1994 made between Perpetual Limited and ME Portfolio
Management Limited, and providing for the establishment of a
series of separate trusts known collectively as the
Superannuation Members' Home Loans Trusts, as amended and
restated from time to time;
Material Documents means:
(a) this agreement (including each Note); and
(b) the Security Trust Deed; and
(c) the Supplementary Bond Terms Notice.
Xxxxx'x has the meaning given to it in the Master Trust Deed;
Mortgage has the meaning given to it in the Master Trust Deed;
Note means a note issued under clauses 2 and 4;
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
Note Holder means Perpetual Limited (in its capacity as
trustee of the Origination Fund) or any person entitled to
be registered as a Note Holder in accordance with this
agreement;
Officer means:
(a) in relation to the Issuer and Note Holder, a director,
secretary or other person whose title contains the word
or words "manager" or "counsel" or "head" or a person
performing the functions of any of them; and
(b) in relation to the SF Manager and OF Manager, a director
or a secretary, or a person notified to be an authorised
officer of the relevant party;
Origination Fund means Superannuation Members' Home Loans
Origination Fund No. 3 established pursuant to the Master
Trust Deed;
Outstanding Moneys means all debts and monetary liabilities
of the Issuer to the Note Holder under or in relation to any
Material Document irrespective of whether the debts or
liabilities:
(a) are present or future;
(b) are actual, prospective, contingent or otherwise;
(c) are at any time ascertained or unascertained;
(d) are owed or incurred by or on account of the Issuer
alone, or severally or jointly with any other person;
(e) are owed to or incurred for the account of the Note
Holder alone, or severally or jointly with any other
person;
(f) are owed or incurred as principal, interest, fees,
charges, taxes, duties or other imposts, damages
(whether for breach of contract or tort or incurred on
any other ground), losses, costs or expenses, or on any
other account; or
comprise any combination of the above, after:
(g) deducting the aggregate amount of any payments made
under clause 3(b); and
(h) adding the aggregate of any amounts recovered by or
otherwise paid to the Issuer where the original
non-payment of those amounts was a Payment Amount
Shortfall;
Outstanding Principal Balance in respect of a Mortgage has
the same meaning as in the Supplementary Bond Terms Notice;
Overdue Rate means on any date the rate percent per annum
calculated by the OF Manager which is the rate, expressed as
a percentage, derived from dividing the Interest Amount by
the average of the Principal Outstanding on each Banking Day
during the Payment Period immediately preceding the date the
Overdue Rate is calculated;
Payment Amount means an amount payable by the Issuer to the
counterparty to any Enhancement or Interest Hedge (as those
terms are defined in the Security Trust Deed) in respect of
any loss suffered by the counterparty as a consequence of
the termination before its due date of any arrangement to
hedge or otherwise manage the Issuer's interest rate
exposure for any Mortgage being an Asset of the
Securitisation Fund where all or part of the interest
payable is subject to a fixed rate;
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
Payment Amount Shortfall means as the case requires:
(a) a Recovery Shortfall; and
(b) a Threshold Rate Shortfall;
Payment Date has the meaning given to it in the Supplementary
Bond Terms Notice;
Payment Period means the period from and including the last
relevant Payment Date to but excluding the next relevant
Payment Date except that the first Payment Period will
commence on the relevant Funding Date and the last Payment
Period will end on the Termination Date;
Permitted Encumbrance means:
(a) every lien created by operation of law securing an
obligation that is not yet due;
(b) every lien for the unpaid balance of purchase moneys
under an instalment contract entered into in the
ordinary course of business;
(c) every lien for the unpaid balance of moneys owing for
repairs; and
(d) an Encumbrance granted under a Transaction Document,
which affects or relates to any of the assets of the
Securitisation Fund;
Power means any right, power, authority, discretion or
remedy conferred on the Note Holder or OF Manager, or a
Receiver or an Attorney by any Transaction Document or any
applicable law;
Principal Outstanding means at any time the aggregate
principal amount of all outstanding Funding Portions at that
time after:
(a) deducting the aggregate amount of any payments made
under clause 3(b); and
(b) adding the aggregate of any amounts recovered by or
otherwise paid to the Issuer in respect of a Payment
Amount Shortfall;
Recovery Shortfall means an amount equal to the difference
between the Payment Amount and the amount recovered or
recoverable under or pursuant to the Mortgage in respect of
the Payment Amount;
Redraw Funding Facility has the meaning given to it in the
Security Trust Deed;
Register means the register of Note Holders maintained by
the Issuer;
Regulation AB has the meaning given to it in the
Supplementary Bond Terms Notice;
S&P has the meaning given to it in the Master Trust Deed;
Same Day Funds means bank cheque or other immediately
available funds;
Securitisation Fund means the Securitisation Fund
constituted under the Master Trust Deed known as SMHL Global
Fund No. 9;
Security Trust Deed means the security trust deed (as
amended from time to time) in respect of the Securitisation
Fund between the Issuer, the SF Manager, Perpetual Trustee
Company Limited ABN 42 000 001 007 (as security trustee) and
The Bank of New York (as note trustee);
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
Set Date means in relation to the initial Payment Period,
the Funding Date, and in relation to each subsequent Payment
Period, the relevant Payment Date at the commencement of
that Payment Period;
Supplementary Bond Terms Notice means the Supplementary Bond
Terms Notice dated on or about the date of this agreement in
respect of the Securitisation Fund and providing the terms
of issue for Class A Notes and Class B Notes;
Tax means:
(a) any tax (including GST), levy, charge, impost, duty,
fee, deduction, compulsory loan or withholding; or
(b) any income, stamp or transaction duty, tax or charge,
which is assessed, levied, imposed or collected by any
Governmental Agency and includes, but is not limited to, any
interest, fine, penalty, charge, fee or other amount imposed
on or in respect of any of the above;
Termination Date means, the first to occur of:
(a) the date on which the Total Outstanding Principal
Balance is zero or will be zero following any payments
made on the relevant Payment Date (as defined under the
Supplementary Bond Terms Notice); and
(b) the date by which the SF Manager has received written
notification from each Designated Rating Agency (as
defined in the Master Trust Deed) that the provision of
the Facility and the subscription and issue of Notes
under the Facility (including any outstanding Notes) is
no longer necessary in order to maintain the "AAA",
"Aaa" and "AAA" rating of notes in the Securitisation
Fund known as the "Class A Notes" by S&P, Xxxxx'x and
Fitch Ratings respectively;
Threshold Rate Shortfall means any shortfall arising under
any determination under clause 11(a) of the Supplementary
Bond Terms Notice;
Total Outstanding Principal Balance has the meaning given to
it under the Supplementary Bond Terms Notice;
Transaction Document has the meaning given to it in the
Master Trust Deed and includes this agreement and any
document or agreement entered into or given under it
(including Notes);
Transaction Party means:
(a) the Issuer; or
(b) the SF Manager.
1.2 Interpretation
In this agreement, headings and boldings are for convenience
only and do not affect the interpretation of this agreement
and, unless the context otherwise requires:
(a) words importing the singular include the plural and vice
versa;
(b) words importing a gender include any gender;
(c) other parts of speech and grammatical forms of a word or
phrase defined in this agreement have a corresponding
meaning;
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
(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
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
(q) the Issuer or the Note Holder will only be considered to
have knowledge or awareness of, or notice of, a thing,
or grounds to believe any thing, by virtue of the
officers of the Issuer or the Note Holder having day to
day responsibility for the administration of the
Origination Fund or the Securitisation Fund (as the case
may be) having actual knowledge, actual awareness or
actual notice of that thing, or grounds or reason to
believe that thing (and similar references will be
interpreted in this way). In addition, notice, knowledge
or awareness of an Event of Default means notice,
knowledge or awareness of the occurrence of the events
or circumstances constituting an Event of Default and
that those events or circumstances constitute an Event
of Default.
1.3 Banking Day
Unless otherwise stipulated in this agreement, where the day
on or by which any thing is to be done is not a Banking Day,
that thing must be done on or by the succeeding Banking Day.
1.4 Transaction Document
The parties agree that this agreement and any document or
agreement entered into or given under it (including a Note)
is a "Transaction Document" for the purposes of the Master
Trust Deed.
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2 The Notes
2.1 Application for and Issue of Notes
(a) The SF Manager may request that the Issuer issues a Note
to the Note Holder by:
(1) requesting a Note be issued from "SMHL Global Fund
No. 9";
(2) specifying the principal amount of the Note
required;
(3) specifying the proposed date of issue of the Note;
and
(4) providing to the Note Holder and the OF Manager a
Funding Notice (and a copy to the Issuer) pursuant
to clause 4.
(b) If the SF Manager has requested that the Issuer issues a
Note in accordance with clause 2.1(a) and the OF Manager
and Note Holder agree to subscribe for the Note as
requested by the SF Manager, the Issuer must, on the
terms of this agreement, issue the Note to the Note
Holder in consideration for the principal amount
provided that the OF Manager and Note Holder have
complied with clause 5.1.
(c) The parties agree that the terms and conditions
contained in this agreement, the Supplementary Bond
Terms Notice (to the extent applicable) and the Security
Trust Deed (to the extent applicable) govern the issue
and repayment of the Notes.
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
2.2 Acknowledgment of Indebtedness
The Issuer acknowledges its indebtedness to the Note Holder
in respect of each Note issued under this agreement.
2.3 Obligations under Notes
(a) The obligations of the Issuer under the Notes are
constituted by, and specified in, this agreement and in
the Conditions.
(b) Each Note is a separate debt of the Issuer.
(c) The entitlement of any person to a Note is determined by
registration as a Note Holder of that Note.
(d) The making of, or giving effect to, a manifest error in
an inscription in the Register will not avoid the
creation or transfer of a Note.
2.4 Ownership of Notes
(a) A Note may be transferred by the Note Holder to any
person in accordance with this agreement.
(b) The person whose name is registered as the Note Holder
of a Note in the Register will be, and will be treated
by the Issuer as, the absolute owner of the Note.
2.5 Register
The Issuer must:
(a) establish and maintain the Register;
(b) enter in the Register in respect of each Note:
(1) the principal amount and principal outstanding in
respect of each Note;
(2) its date of issue and date of redemption and
cancellation; and
(3) the date on which any person becomes, or ceases to
be, a Note Holder.
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3 Purpose
(a) Subject to clause 3(b), the Issuer must, and the SF
Manager must cause the Issuer to, keep the proceeds of a
Funding Portion invested in Authorised Investments:
(1) which are rated "AAA" or "A-1+" by S&P, "Prime-1"
or "Aaa" by Xxxxx'x and "AAA" or "F1+" by Fitch
Ratings, or such other rating as any Designated
Rating Agency may approve from time to time;
(2) which mature (except in the case of call deposits
with a Bank) not later than the day before the
relevant Payment Date immediately after the day on
which they are made; and
(3) otherwise in accordance with the Master Trust Deed.
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
(b) The Issuer must and the SF Manager must cause the Issuer
to, apply funds invested under clause 3(a):
(1) to the extent of any Payment Amount Shortfall and
subject to clause 5.5(b)(3), towards Collections in
accordance with the Supplementary Bond Terms
Notice; and
(2) otherwise as required under clause 5 or clause 11.
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4 Funding procedures
4.1 Delivery of Funding Notice
If the SF Manager determines that the Issuer requires a Note
to be issued, the SF Manager must deliver to the Note Holder
and the OF Manager a Funding Notice in accordance with this
clause 4.
4.2 Requirements for a Funding Notice
A Funding Notice:
(a) must be in writing in the form of, and specifying the
matters set out in, schedule 1;
(b) must be received by the Note Holder and the OF Manager
at least 2 Banking Days before the proposed Funding Date
(or such shorter period as the OF Manager may agree in
writing);
(c) must be signed by an Officer of the SF Manager and an
Officer of the Issuer;
(d) whether or not stated in the notice, constitutes a
representation and warranty by each of the Issuer and
the SF Manager that so far as it is aware (without the
need to make enquiry) each representation and warranty
set out in clause 7 and given by it is true, correct and
not misleading as if made at the date of the Funding
Notice and the Funding Date in respect of the facts and
circumstances then subsisting, but if the representation
and warranty constituted by this clause 4.2(d) is not
correct the Funding Notice must contain a statement to
that effect and must set out full details of any
exceptions and the reasons and any remedial action taken
or proposed. Any such statement is without prejudice to
the rights of the Note Holder and OF Manager.
4.3 Copy of the Funding Notice to be provided to the Issuer
A copy of each Funding Notice must be provided to the Issuer
at least 1 Banking Day before the proposed Funding Date
together with the Bond Issue Direction for the issue of the
Notes.
4.4 Irrevocability of Funding Notice
The Note Holder or the OF Manager may, in its absolute
discretion, decide to decline to provide the requested
funding specified in the Funding Notice, in which case the
OF Manager must notify each of the Issuer and the SF Manager
in writing. Following agreement by the Note Holder and the
OF Manager to the
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
issue of the relevant Note specified in the Funding Notice,
the Issuer is irrevocably committed to, and the SF Manager
is irrevocably committed to cause the Issuer to, issue the
relevant Note and to draw Funding Portions from the Note
Holder in accordance with the Funding Notice given to the OF
Manager and the Note Holder.
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5 Loan Facility
5.1 Provision of Funding Portions
If the SF Manager gives a Funding Notice in accordance with
clause 4 and the OF Manager and the Note Holder agree to the
issue of the specified Note, then, subject to this agreement
(including, without limitation, clause 10), the Note Holder
must, and the OF Manager must cause the Note Holder to,
provide the relevant Funding Portion under the Facility as
payment for the relevant Note in Same Day Funds in Dollars
not later than 12 noon (Melbourne time) on the specified
Funding Date and in accordance with that Funding Notice.
5.2 Repayment of Outstanding Moneys
(a) If after having regard to clause 5.5, the SF Manager
determines that on any Banking Day the Principal
Outstanding is greater than the amount agreed from time
to time by the SF Manager and each Designated Rating
Agency the Issuer must, and the SF Manager must cause
the Issuer to, repay to the Note Holder so much of the
Principal Outstanding so that the Principal Outstanding
immediately after that repayment will not cause the
current rating of the Class A Notes and the Class B
Notes issued by the Issuer to be downgraded or withdrawn
by any Designated Rating Agencies.
(b) The Issuer must, and the SF Manager must cause the
Issuer to, repay the Principal Outstanding, if any, in
full on the Termination Date.
(c) The Issuer must, and the SF Manager must cause the
Issuer to, pay or repay the balance of the Outstanding
Moneys in full to the Note Holder on the Termination
Date or on such other date on which the Principal
Outstanding is, or is required to be, repaid in full.
(d) The Issuer is not obliged to make a repayment under this
clause 5.2 other than out of the funds invested or
available for investment under clause 3.
5.3 Interest
(a) On each relevant Payment Date, the Issuer must, and the
SF Manager must cause the Issuer to, pay to the Note
Holder interest in relation to the relevant Payment
Period being an amount equal to the Interest Amount. The
Issuer is not obliged to pay interest under this clause
5.3(a) other than out of the Interest Amount.
(b) The Issuer and the SF Manager acknowledge that the
Interest Amount is not available to meet any payment
obligation of the Issuer other than its obligation to
pay interest under clauses 5.3(a) and 5.3(c).
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
(c) If on any relevant Payment Date, the Interest Amount in
respect of the relevant Payment Period is not paid on
the whole amount of the Principal Outstanding:
(1) the Interest Amount shall accrue interest at the
Overdue Rate for the next Payment Period;
(2) the Interest Amount and interest accrued under
paragraph (1) shall become payable on the next
relevant Payment Date; and
(3) to the extent to which any unpaid Interest Amount
(including any interest accrued under paragraph
(1)) remains unpaid after that next relevant
Payment Date it will again be subject to paragraphs
(1) and (2) for each subsequent Payment Period and
relevant Payment Date until it has been paid.
(d) Interest must be calculated in arrears on daily balances
on the basis of a 365 day year and for the actual number
of days elapsed during the relevant period.
5.4 Order of Repayment
(a) In making repayments under clause 5.2, the Issuer must,
and the SF Manager must cause the Issuer to, apply the
amount of the repayment to repay the Principal
Outstanding under the Notes in order of the date of
issue of the Notes so that the Notes issued earlier in
time are repaid first.
(b) The Note Holder must, and the OF Manager must cause the
Note Holder to, apply repayments in accordance with
clause 6.3(a).
(c) The OF Manager must advise the Issuer and the SF Manager
in writing of the Notes which have been wholly or partly
repaid, the amount of the repayment and the Principal
Outstanding under that Note.
5.5 Acknowledgments
(a) The Issuer acknowledges that if an amount is paid out of
the Securitisation Fund as a consequence of a Payment
Amount Shortfall, and an amount referable to that
Payment Amount Shortfall is subsequently recovered by or
otherwise paid to the Issuer, such amounts are to be
available for repayment under clause 5.
(b) Each of the parties acknowledges that:
(1) the Issuer will not be able to issue the Class A
Notes or the Class B Notes unless and until a
Funding Portion has been provided and maintained
under clause 5.1 such that the Principal
Outstanding is not less than 0.00% of the
Outstanding Principal Balance of the Loans secured
by the Mortgages comprised in the Assets of
Securitisation Fund on the issue date of the notes;
(2) in order to maintain the assigned rating by each
Designated Rating Agency (which rating confirmation
by each Designated Rating Agency must be in
writing) of the Class A Notes or the Class B Notes
it may be necessary to increase the amount of the
Principal Outstanding to an amount in excess of
0.00% of the Outstanding
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
Principal Balance of the Loans secured by Mortgages
comprised in the Assets of Securitisation Fund;
(3) the amount of the Principal Outstanding up to an
amount equal to 0.00% of the Outstanding Principal
Balance of the Loans secured by Mortgages comprised
in the Assets of Securitisation Fund is only
available in respect of Payment Amount Shortfalls
being Recovery Shortfalls and any Principal
Outstanding in excess of 0.00% of the Outstanding
Principal Balance of the Loans secured by Mortgages
comprised in the Assets of Securitisation Fund is
only available in respect of Payment Amount
Shortfalls being Threshold Rate Shortfalls; and
(4) if a Threshold Rate Shortfall exists and the amount
of the Funding Portion is not increased as
contemplated by clause 5.5(b)(2), the SF Manager
must comply with clauses 11(c)(1) and (2) of the
Supplementary Bond Terms Notice.
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6 Payments
6.1 Manner of payments
All payments to the Note Holder under the Transaction
Documents must be made:
(a) in Same Day Funds;
(b) in Dollars; 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 Banking Day
If a payment is due on a day which is not a Banking Day, the
due date for that payment is the next Banking Day and
interest must be adjusted accordingly.
6.3 Appropriation of payments
(a) All payments made by the Issuer to the Note Holder under
this agreement may be appropriated as between principal,
interest and other amounts, as the OF Manager in its
absolute discretion determines or, failing any
determination, in the following order:
(1) firstly, towards 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) secondly, towards payment of interest due and
payable under the Material Documents; and
(3) thirdly, towards repayment of the Principal
Outstanding.
(b) Any appropriation under clause 6.3(a) overrides any
appropriation made by the Issuer.
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
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 the relevant Governmental Agency and
within 2 Banking Days after receipt the Issuer must, and
the SF Manager must cause the Issuer to, deliver them to
the Note Holder.
6.6 Amounts payable on demand
If any amount payable by a Transaction Party under any
Material Document is not expressed to be payable on a
specified date that amount is payable by the Transaction
Party on demand by the Note Holder or OF Manager.
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7 Representations and warranties
7.1 By the Issuer
The Issuer hereby represents and warrants to the OF Manager
and Note Holder that:
(a) (Due Incorporation): it is duly incorporated and has the
corporate power to own its property and to carry on its
business as is now being conducted;
(b) (Constitution): the execution delivery and performance
of this agreement and any Note does not and will not
violate its Constitution;
(c) (Corporate Power): it has the power and has taken all
corporate and other action required to enter into this
agreement and each Note and to authorise the execution
and delivery of this agreement and each Note and the
performance of its obligations thereunder;
(d) (Filings): it has filed all corporate notices and
effected all registrations with the Australian
Securities and Investments Commission or similar office
in the jurisdiction of incorporation and in any other
jurisdiction as required by law and all such filings and
registrations are current, complete and accurate except:
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
(1) as such enforceability may be limited by any
applicable bankruptcy, insolvency, re-organisation,
moratorium or trust or other similar laws affecting
creditors' rights generally; and
(2) that this representation and warranty does not
apply to the filing of ASIC form 309 or ASIC form
350 in relation to the creation or stamping of the
Charge;
(e) (Legally Binding Obligation): this agreement and each
Note constitutes or will constitute a valid, legally
binding and enforceable obligation of it in accordance
with its terms except as such enforceability may be
limited by any applicable bankruptcy, insolvency,
reorganisation, moratorium or trust 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 Government Agency required to be
obtained by it in connection with the execution and
delivery of, and performance of its obligations under,
this agreement and any Note have been obtained and are
valid and subsisting;
(h) (Securitisation Fund Validly Created): the
Securitisation Fund has been validly created and is in
existence at the date of this agreement;
(i) (Sole Trustee): it has been validly appointed as trustee
of the Securitisation Fund and is presently the sole
trustee of the Securitisation Fund;
(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;
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
(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.
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.
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8 Undertakings
8.1 Term of undertakings
Unless the OF Manager otherwise agrees in writing, until the
Outstanding Moneys are fully and finally repaid the Issuer
and the SF Manager must, at its own cost (but without
prejudice to clause 10 in the case of the Issuer), comply
with the undertakings in this clause 8.
8.2 Compliance with Covenants
The Issuer must and the SF Manager must ensure that the
Issuer does:
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
(a) comply with all of its covenants and obligations under
the Security Trust Deed and Supplementary Bond Terms
Notice; and
(b) wherever it is required to obtain consent of the
Security Trustee (as defined in the Security Trust Deed)
under the Security Trust Deed also obtain the prior
written consent of the Note Holder and OF Manager.
8.3 Notify Events of Default
On and from the Termination Date, each of the SF Manager and
the Issuer must immediately notify all the other parties to
this agreement in writing if it becomes actually aware of
the occurrence of any Event of Default and must provide full
and complete details in relation thereto immediately upon
becoming actually aware of such details.
8.4 Know your customer
Subject to any confidentiality, privacy or general trust law
obligations owed by the Issuer to Bondholders and any
applicable confidentiality or privacy laws, except to the
extent those obligations or laws are overridden by
applicable anti-money laundering or counter-terrorism
financing laws, each party hereto (Information Provider)
agrees to provide any information and documents reasonably
required by another party hereto (Information Receiver) for
the Information Receiver to comply with any applicable
anti-money laundering or counter-terrorism financing laws
including, without limitation, any laws imposing "know your
customer" or other identification checks or procedures on a
party, but only to the extent that such information is in
the possession of, or otherwise readily available to, the
Information Provider. The Information Receiver may, to the
extent required by law, decline to perform its affected
obligations under the Transaction Documents to which it is a
party. Any Information Receiver receiving information and
documents pursuant to this clause 8.4 agrees to utilize such
information and documents solely for the purpose of
complying with applicable anti-money laundering or
counter-terrorism financing laws.
8.5 Compliance with Regulation AB
In relation to compliance with Regulation AB:
(a) the SF Manager and the Issuer acknowledge and agree that
the purpose of this clause 8.5 is to facilitate
compliance by the Issuer in relation to the
Securitisation Fund with the provisions of Regulation AB
and related rules and regulations of the Commission to
the extent applicable to the Issuer;
(b) the SF Manager shall not exercise its right to request
delivery of information or other performance under these
provisions other than as required to comply with the
Securities Act, the Exchange Act and the rules and
regulations of the Commission thereunder, including
Regulation AB, with respect to the Securitisation Fund.
The SF Manager shall not request the delivery of
information or other performance under this clause 8.5
unless the SF Manager is required under the Exchange Act
to file an annual report on Form 10-K with respect to
the Securitisation Fund. The SF Manager and the Issuer
acknowledge that interpretations of the requirements of
Regulation AB may change over time, whether due to
interpretive guidance provided by the Commission or its
staff, consensus
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
among participants in the asset-backed securities
markets, advice of counsel, or otherwise, and agrees to
comply with requests made by the SF Manager in good
faith for delivery of information under these provisions
on the basis of evolving interpretations of Regulation
AB; provided that, to the extent the SF Manager and the
Issuer do not agree with respect to an interpretation of
Regulation AB, the SF Manager and the Issuer shall
obtain a written opinion of counsel of U.S. national
reputation in the practice of U.S. federal securities
laws reasonably acceptable to the SF Manager and the
Issuer, addressed to the SF Manager and the Issuer,
stating the opinion of such counsel with respect to the
interpretation of the relevant provision(s) of
Regulation AB; provided, further, that the costs and
fees of such counsel incurred in the preparation of such
written opinion shall be divided equally between the SF
Manager and the Issuer. In relation to the
Securitisation Fund, the Issuer shall cooperate fully
with the SF Manager to deliver to the SF Manager
(including any of its assignees or designees), any and
all statements, reports, certifications, records and any
other information within the control of the Issuer or
for which the Issuer is responsible necessary in the
good faith determination of the SF Manager to permit the
SF Manager to comply with the provisions of Regulation
AB, together with such disclosures relating to the SF
Manager, the Issuer, any Subcontractor of the Issuer,
the Loans, the servicing of the Loans or any other
servicing activities within the meaning of Item 1122 of
Regulation AB, reasonably believed by the SF Manager to
be necessary in order to effect such compliance;
(c) the SF Manager (including any of its assignees or
designees) shall cooperate with the Issuer by providing
timely notice of requests for information under these
provisions following the SF Manager becoming aware that
it is required under the Exchange Act to file an annual
report on Form 10-K in any year and by reasonably
limiting such requests to information required, in the
SF Manager's reasonable judgment, to comply with
Regulation AB;
(d) the Issuer acknowledges and agrees that, to the extent
the SF Manager reasonably determines, upon consultation
with, and to the extent agreed with, the Issuer, that
the Issuer is "participating in the servicing function"
in relation to the Securitisation Fund within the
meaning of Item 1122 of Regulation AB, the Issuer will
comply with the applicable requirements contained in
clause 8.5(e) - (i); provided that, to the extent the SF
Manager and the Issuer do not agree whether the Issuer
is "participating in the servicing function" with
respect to one or more Servicing Criteria within the
meaning of Item 1122 in relation to the Securitisation
Fund, the SF Manager and the Issuer shall obtain a
written opinion of counsel of U.S. national reputation
in the practice of U.S. federal securities laws
reasonably acceptable to the SF Manager and the Issuer,
addressed to the SF Manager and the Issuer, stating
whether, in the opinion of such counsel, the Issuer is
"participating in the servicing function" with respect
to such Servicing Criteria within the meaning of Item
1122 in relation to the Securitisation Fund; provided,
further, that the costs and fees of such counsel
incurred in the preparation of such written opinion
shall be divided equally between the SF Manager and the
Issuer;
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
(e) on or before September 1 of each calendar year,
commencing in 2007, the Issuer shall upon the reasonable
request of the Manager:
(1) deliver to the SF Manager a report (in form and
substance reasonably satisfactory to the SF
Manager) regarding the Issuer's assessment of
compliance with the Servicing Criteria during the
immediately preceding financial year ended June 30,
as required under Rules 13a-18 and 15d-18 of the
Exchange Act and Item 1122 of Regulation AB. Such
report shall be addressed to the SF Manager and
signed by an authorized officer of the Issuer, and
shall address each of the Servicing Criteria
specified on a certification substantially in the
form of Schedule 3 hereto and addressing, at a
minimum, the criteria identified in Schedule 4
hereto as "Applicable Servicing Criteria", but only
with respect to such of the Servicing Criteria that
the Issuer performs;
(2) deliver to the SF Manager a report of a registered
public accounting firm reasonably acceptable to the
SF Manager that attests to, and reports on, the
assessment of compliance made by the Issuer and
delivered pursuant to the preceding paragraph. Such
attestation shall be in accordance with Rules
1-02(a)(3) and 2-02(g) of Regulation S-X under the
Securities Act and the Exchange Act;
(3) cause each Subcontractor of the Issuer (if any)
determined by the Issuer pursuant to clause 8.5 to
be "participating in the servicing function" within
the meaning of Item 1122 of Regulation AB, to
deliver to the SF Manager an assessment of
compliance and accountants' attestation as and when
provided in clause 8.5(e)(1) and 8.5(e)(2), but
only with respect to such of the Servicing Criteria
that such Subcontractor of the Issuer performs;
An assessment of compliance provided by a Subcontractor of
the Issuer pursuant to clause 8.5(e)(3) need not address
any elements of the Servicing Criteria other than those
specified by the Issuer pursuant to clause 8.5(f), and
need only address such of the Servicing Criteria that such
Subcontractor performs;
(f) in relation to the use of Subcontractors:
(1) the Issuer shall promptly upon the reasonable
request of the SF Manager provide to the SF Manager
(or any designee of the SF Manager) a written
description (in form and substance satisfactory to
the SF Manager) of the role and function of each
Subcontractor utilized by the Issuer, specifying:
(A) the identity of each such Subcontractor;
(B) which (if any) of such Subcontractors are
"participating in the servicing function"
within the meaning of Item 1122 of Regulation
AB; and
(C) which elements of the Servicing Criteria will
be addressed in assessments of compliance
provided by each Subcontractor identified
pursuant to clause 8.5(f)(1)(B);
(2) as a condition to the utilization of any
Subcontractor determined to be "participating in
the servicing function" within the meaning of
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
Item 1122 of Regulation AB, (i) the Issuer shall
cause any such Subcontractor used by the Issuer for
the benefit of the SF Manager to comply with the
provisions of clauses 8.5(e) - (i), 8.6 and 8.7 of
this agreement to the same extent as if such
Subcontractor were the Issuer (provided that in the
case of a Subcontractor of the Issuer, the
obligations of such Subcontractor under clause
8.5(g) will be owed directly to the SF Manager and
the Issuer will do all things reasonably necessary
to cause the Subcontractor to owe such obligations
directly to the SF Manager) and (ii) the Issuer
shall obtain the written consent of the SF Manager
(which is not to be unreasonably withheld or
delayed) to the utilization of such Subcontractor.
The Issuer shall be responsible for obtaining from
each Subcontractor and delivering to the SF Manager
any assessment of compliance and accountants'
attestation required to be delivered by such
Subcontractor under clause 8.5(e) - (i), in each
case as and when required to be delivered;
(g) the Issuer shall indemnify the SF Manager and shall hold
the SF Manager harmless from and against any losses,
damages, penalties, fines, forfeitures, legal fees and
expenses and related costs, judgments, and any other
costs, fees and expenses that it sustains directly as a
result of:
(1) any untrue statement of a material fact contained
or alleged to be contained in any information,
report, certification, accountants' letter or other
material provided in written or electronic form
under this clause 8.5 by or on behalf of the
Issuer, or provided under this clause 8.5 by or on
behalf of any Subcontractor of the Issuer
(collectively, the "Issuer Information"); provided
that in the case of any untrue statement of a
material fact contained or alleged to be contained
in the accountant's letter, the Issuer will
indemnify and hold harmless the SF Manager only to
the extent of the sum that the Issuer recovers from
the accounting firm providing such accountant's
letter (which recovery the Issuer must if the
Issuer in good faith determines the Issuer is
entitled to do so after taking professional advice
pursue including by taking action in any relevant
court of competent jurisdiction); provided,
further, that the Issuer will not indemnify and
hold harmless the SF Manager to the extent that the
untrue statement of a material fact contained or
alleged to be contained in the Issuer Information
relates to information provided to the Issuer by
the SF Manager or any other party to enable the
Issuer to complete its duties under the Transaction
Documents; or
(2) the omission or alleged omission to state in the
Issuer Information a material fact required to be
stated in the Issuer Information or necessary in
order to make the statements therein, in the light
of the circumstances under which they were made,
not misleading; provided, by way of clarification,
that this clause 8.5(g)(2) shall be construed
solely by reference to the Issuer Information and
not to any other information communicated in
connection with a sale or purchase of securities,
without regard to whether the Issuer Information or
any portion thereof is presented together with or
separately from such other information; provided,
further, that in
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
the case of the omission or alleged omission to
state in an accountant's letter a material fact
required to be stated in the accountant's letter or
necessary in order to make the statements therein,
in the light of the circumstances under which they
were made, not misleading, the Issuer will
indemnify and hold harmless the SF Manager only to
the extent of the sum that the Issuer recovers from
the accounting firm providing such accountant's
letter (which recovery the Issuer must if the
Issuer in good faith determines the Issuer is
entitled to do so after taking professional advice
pursue including by taking action in any relevant
court of competent jurisdiction); provided,
further, that the Issuer will not indemnify and
hold harmless the SF Manager to the extent that the
omission or alleged omission to state in the Issuer
Information a material fact required to be stated
in the Issuer Information or necessary in order to
make the statements therein, in the light of the
circumstances under which they were made, not
misleading, relates to information provided to the
Issuer by the SF Manager or any other party to
enable the Issuer to complete its duties under the
Transaction Documents; or
(3) any failure by the Issuer or any Subcontractor of
the Issuer to deliver any information, report,
certification, accountants' letter or other
material when and as required under this clause
8.5, including any failure by the Issuer to
disclose any non-compliance with any of the
Servicing Criteria in a certification or to
identify pursuant to clause 8.5(f) any
Subcontractor "participating in the servicing
function" within the meaning of Item 1122 of
Regulation AB. In the case of any failure of
performance described in clause 8.5(g)(3), the
Issuer shall promptly reimburse the SF Manager, for
all costs reasonably incurred by the SF Manager in
order to obtain the information, report,
certification, accountants' letter or other
material not delivered as required by the Issuer or
any Subcontractor of the Issuer;
(h) any failure by the Issuer or any Subcontractor of the
Issuer to:
(1) deliver any information, report, certification,
accountants' letter or other material when and as
required under this clause 8.5, shall, except as
provided in clause 8.5(h)(2), immediately and
automatically, without notice or grace period, entitle
the SF Manager, in its sole discretion:
(A) to remove the Issuer or direct the Issuer to
remove the Subcontractor of the Issuer from the
performance of any activities which the SF Manager
reasonably determines to constitute "participating
in the servicing function" in relation to the
Securitisation Fund within the meaning of Item
1122 of Regulation AB; and
(B) to replace such party with respect to such
activities, each at the expense of the Issuer,
without payment (notwithstanding anything in the
Transaction Documents to the contrary) of any
compensation to the Issuer; provided that to the
extent that any provision of the Transaction
Documents expressly
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
provides for the survival of certain rights or
obligations following termination of the Issuer,
such provision shall be given effect;
(2) deliver any information, report, certification or
accountants' letter when and as required under
clause 8.5(e) - (i) or (except as provided below)
any failure by the Issuer to identify pursuant to
clause 8.5(f) any Subcontractor of the Issuer
"participating in the servicing function" within
the meaning of Item 1122 of Regulation AB, which
continues unremedied for ten calendar days after
the date on which such information, report,
certification or accountants' letter was required
to be delivered, shall entitle the SF Manager, in
its sole discretion:
(A) to remove the Issuer or direct the Issuer to
remove the Subcontractor of the Issuer from the
performance of any activities which the SF Manager
reasonably determines to constitute "participating
in the servicing function" in relation to the
Securitisation Fund within the meaning of Item
1122 of Regulation AB; and
(B) to replace such party with respect to such
activities, in the case of the Issuer or any
Subcontractor of the Issuer, at the expense of the
Issuer, without payment (notwithstanding anything
in the Transaction Documents to the contrary) of
any compensation to the Issuer;
provided that to the extent that any provision of
the Transaction Documents expressly provides for
the survival of certain rights or obligations
following termination of the Issuer, such provision
shall be given effect; and
(i) the Issuer shall promptly reimburse the SF Manager (or
any designee of the SF Manager), for all reasonable
expenses incurred by the SF Manager (or such designee),
as such are incurred, in connection with the termination
of the Issuer and the transfer of servicing activities
within the meaning of Item 1122 of Regulation AB to a
successor. The provisions of this clause 8.5(i) shall
not limit whatever rights the SF Manager may have under
other provisions of the Transaction Documents or
otherwise, whether in equity or at law, such as an
action for damages, specific performance or injunctive
relief.
8.6 Direction of claims by the SF Manager
(a) If the Issuer is entitled to recover from the accounting
firm providing the accountant's letter referred to in
clause 8.5(g) by any action, proceeding, claim or demand
(for the purpose of this clause 8.6, a Claim), the
Issuer must if the Issuer in good faith determines that
it is entitled to do so after taking professional advice
pursue such Claim and must promptly notify the SF
Manager in writing of such Claim.
(b) Upon notice to the SF Manager of any such Claim under
clause 8.6(a), the SF Manager will have the option to
assume the direction of that Claim (including the
employment of legal advisers selected by the Issuer but
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
approved by the SF Manager subject to the payment by the
Issuer of all fees and expenses).
(c) If the Issuer receives notice from the SF Manager of its
election to direct the Claim and the SF Manager approves
the legal advisers selected by the Issuer for the
purposes of that Claim, the Issuer will not be liable to
the SF Manager under this clause 8.6 for any fees or
expenses subsequently incurred by the SF Manager in
connection with the Claim unless the Issuer does not
employ legal advisers approved by or on behalf of the SF
Manager to represent the SF Manager within a reasonable
time after notice of the Claim.
8.7 Direction of defence of claims
(a) If any action, proceeding, claim or demand brought
against the SF Manager in connection with (i) any untrue
statement of a material fact contained or alleged to be
contained in the Issuer Information referred to in
clause 8.5(g) or (ii) the omission or alleged omission
to state in the Issuer Information a material fact
required to be stated in the Issuer Information or
necessary in order to make the statements therein, in
the light of the circumstances under which they were
made, not misleading (for the purpose of this clause
8.7, a Claim), the Issuer will have the option to assume
the direction of that Claim (including the employment of
legal advisers selected by the Issuer but approved by
the SF Manager subject to the payment by the Issuer of
all fees and expenses).
(b) If the Issuer notifies the SF Manager in writing of its
election to direct the defence of a Claim brought
against the Issuer and the SF Manager approves the legal
advisers selected by the Issuer for the purposes of the
defence of that Claim, the Issuer will not be liable to
the SF Manager under this clause 8.7 for any fees or
expenses subsequently incurred by the SF Manager in
connection with the Claim against the Issuer unless the
Issuer does not employ legal advisers approved by or on
behalf of the SF Manager to represent the Issuer within
a reasonable time after notice of the Claim.
(c) If any Claim brought against the Issuer is settled with
respect to the Issuer with the consent of the SF Manager
or if there is a final judgement against the Issuer in
relation to it, the Issuer agrees to indemnify and hold
harmless the SF Manager from and against any loss or
liability by reason of such settlement or judgement
(other than any fees and expenses incurred in
circumstances where the Issuer is not liable for them
under clause 8.7(b), or any fees and expenses incurred
in connection with any Claim brought against the Issuer
that is settled with respect to the Issuer or
compromised by the Issuer without the consent of the SF
Manager (unless the SF Manager has unreasonably withheld
its consent)).
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9 Events of Default
9.1 Operation of clause 9
Clauses 9.2 to 9.4 only have effect on and from the
Termination Date.
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
9.2 Effect of Event of Default
(a) Upon or at any time after the occurrence of an Event of
Default the Note Holder or the OF Manager may by notice
to the Issuer and the SF Manager declare that the
Outstanding Moneys are immediately due and payable.
(b) The Issuer must and the SF Manager must cause the Issuer
to upon receipt of a notice under clause 9.2(a)
immediately repay in full the Outstanding Moneys to the
Note Holder.
9.3 Issuer to continue to perform
(a) If the Note Holder or OF Manager makes any declaration
under clause 9.2:
(1) the declaration does not affect or diminish the
duties and obligations of the Issuer or the SF
Manager under the Transaction Documents; and
(2) each of the Issuer and the SF Manager must continue
to perform its obligations under the Transaction
Documents as if the declaration had not been made,
subject to any directions that may be given by the
Note Holder or the OF Manager from time to time
under any Transaction Document.
(b) Clause 9.3(a) does not affect the obligations of the
Issuer or the SF Manager under clause 9.2.
9.4 Enforcement
(a) The Material Documents may be enforced without notice to
or consent by the Issuer or SF Manager or any other
person even if the Note Holder accepts any part of the
Outstanding Moneys after an Event of Default or there
has been any other Event of Default.
(b) Neither the Note Holder nor the OF Manager is liable to
any Transaction Party for any loss or damage a
Transaction Party may suffer, incur or be liable for
arising out of or in connection with the Note Holder or
OF Manager exercising any Power under any Material
Document.
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10 Trustee Limitation of Liability Protection
10.1 Limitation of Liability - Issuer
(a) Clause 26 of the Master Trust Deed applies to the
obligations and liabilities of the Issuer and SF Manager
under this agreement.
(b) The Issuer enters into this agreement in its capacity as
trustee of the Securitisation Fund and in no other
capacity (except where the Transaction Documents provide
otherwise). Subject to clause 10.1(d) below, a liability
of the Issuer arising under or in connection with this
agreement or the Securitisation Fund is limited to and
can be enforced against the Issuer only to the extent to
which it can be satisfied out of the assets and property
of the Securitisation Fund which are available to
satisfy the right of the Issuer to be exonerated or
indemnified for the liability. This limitation of the
Issuer's liability applies despite any other provision
of this agreement
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
and extends to all liabilities and obligations of the
Issuer in any way connected with any representation,
warranty, conduct, omission, agreement or transaction
related to this agreement or the Securitisation Fund.
(c) Subject to clause 10.1(d) below, no person (including
any Relevant Party) may take action against the Issuer
in any capacity other than as trustee of the
Securitisation Fund or seek the appointment of a
receiver (except under the Security Trust Deed), or a
liquidator, an administrator or any similar person to
the Issuer or prove in any liquidation, administration
or arrangement of or affecting the Issuer (except in
relation to the assets of the Securitisation Fund).
(d) The provisions of this clause 10.1 shall not apply to
any obligation or liability of the Issuer to the extent
that it is not satisfied because under a Transaction
Document or by operation of law there is a reduction in
the extent of the Issuer's indemnification or
exoneration out of the assets of the Securitisation
Fund, as a result of the Issuer's fraud, negligence or
wilful default.
(e) It is acknowledged that the Relevant Parties are
responsible under this agreement or the other
Transaction Documents for performing a variety of
obligations relating to the Securitisation Fund. No act
or omission of the Issuer (including any related failure
to satisfy its obligations under this agreement) will be
considered fraud, negligence or wilful default of the
Issuer for the purposes of clause 10.1(d) above to the
extent to which the act or omission was caused or
contributed to by any failure by any Relevant Party or
any other person who has been delegated or appointed by
the Issuer in accordance with the Transaction Documents
to fulfil its obligations relating to the Securitisation
Fund or by any other act or omission of a Relevant Party
or any other person.
(f) No attorney, agent, receiver or receiver and manager
appointed in accordance with this agreement or any other
Transaction Document has authority to act on behalf of
the Issuer in a way which exposes the Issuer to any
personal liability and no act or omission of any such
person will be considered fraud, negligence or wilful
default of the Issuer for the purposes of clause 10.1(d)
above.
(g) In this clause 10.1 Relevant Parties means any party to
a Transaction Document other than the Issuer.
(h) The Issuer is not obliged to do or refrain from doing
anything under this agreement (including incur any
liability) unless the Issuer's liability is limited in
the same manner as set out in paragraphs (b) to (f) of
this clause.
10.2 Limitation of Liability - Note Holder
(a) Clause 26 of the Master Trust Deed applies to the
obligations and liabilities of the Note Holder and OF
Manager under this agreement.
(b) The Note Holder enters into this agreement only in its
capacity as trustee of the Origination Fund and no other
capacity. A liability of the Noteholder 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
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
can be satisfied out of property of the Origination Fund
out of which the Note Holder is actually indemnified for
the liability. This limitation of the Note Holder's
liability applies despite any other provision of this
agreement and extends to all liabilities and obligations
of the Note Holder in any way connected with any
representation, warranty, conduct, omission, agreement
or transaction related to this agreement.
(c) The parties other than the Note Holder may take action
against the Note Holder in any capacity other than as
trustee of the Origination Fund or seek the appointment
of a receiver (except in relation to property of the
Origination Fund), a liquidator, an administrator or any
similar person to the Note Holder or prove in any
liquidation, administration or arrangement of or
affecting the Note Holder (except in relation to
property of the Origination Fund).
(d) The provisions of this clause 10.2 shall not apply to
any obligation or liability of the Note Holder to the
extent that it is not satisfied because under the Master
Trust Deed establishing the Origination Fund or by
operation of law there is a reduction in the extent of
the Note Holder's indemnification out of the assets of
the Origination Fund, as a result of the Note Holder's
fraud, negligence or wilful default.
(e) It is acknowledged that the OF Manager is responsible
under the Master Trust Deed establishing the Origination
Fund for performing a variety of obligations relating to
the Origination Fund, including under this agreement. No
act or omission of the Note Holder (including any
related failure to satisfy its obligations or breach of
representation or warranty under this agreement) will be
considered fraud, negligence or wilful default of the
Note Holder for the purposes of paragraph (d) of this
clause 10.2 to the extent to which the act or omission
was caused or contributed to by any failure by the OF
Manager or any other person to fulfil its obligations
relating to the Origination Fund or by any other act or
omission of the OF Manager or any other person.
(f) No attorney, agent, receiver or receiver and manager
appointed in accordance with this agreement has
authority to act on behalf of the Note Holder in a way
which exposes the Note Holder to any personal liability
and no act or omission of any such person will be
considered fraud, negligence or wilful default of the
Note Holder for the purposes of paragraph (d) of this
clause 10.2.
(g) The Note Holder is not obliged to do or refrain from
doing anything under this agreement (including incur any
liability) unless the Note Holder's liability is limited
in the same manner as set out in paragraphs (a) to (f)
of this clause.
10.3 Wilful Default of the Issuer and the Note Holder
For the purposes of this agreement, the expression "wilful
default":
(a) in relation to the Issuer and the Note Holder, means a
wilful default of this agreement by the Issuer or the
Note Holder, as the case may be:
(1) other than a default which:
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
(A) arises out of a breach of a Transaction
Document by a person other than the Issuer,
Note Holder or any person referred to in
paragraph 10.3(b) in relation to the Issuer or
the Note Holder;
(B) arises because some other act or omission is a
precondition to the relevant act or omission
of the Issuer or the Note Holder, and that
other act or omission does not occur;
(C) is in accordance with a lawful court order or
direction or is required by law; or
(D) is in accordance with an instruction or
direction given to it by any person in
circumstances where that person is authorised
to do so by any Transaction Document; and
(2) in circumstances where had it not committed that
default it would have been entitled to recoupment,
reimbursement or a right of indemnity for its costs
and expenses (if any) in complying with this
agreement from the Fund.
(b) A reference to the "fraud", "negligence" or "wilful
default" of the Issuer or the Note Holder means the
fraud, negligence or wilful default of the Issuer or the
Note Holder, as the case may be, and of the officers or
employees, but not of the agents or delegates of the
Issuer or Note Holder, unless the Issuer or the Note
Holder is liable for the acts or omissions of such other
person under the terms of this agreement.
--------------------------------------------------------------------------------
11 Indemnities
11.1 General indemnity
(a) Subject to clause 10.1 the Issuer, to the extent it is
permitted or contemplated under the terms of the Master
Trust Deed, indemnifies on a full indemnity basis
(including legal costs and expenses charged at the usual
commercial rates of the relevant legal services
provider) and out of the property of the Securitisation
Fund the Note Holder and OF Manager against any claim,
action, damage, loss, liability, cost, charge, expense,
outgoing or payment which the Note Holder or OF Manager,
as the case may be, or an Attorney of the Note Holder or
OF Manager pays, suffers, incurs or is liable for, in
respect of any of the following:
(1) a Funding Portion required by a Funding Notice, not
being made for any reason, but excluding any
default by the Note Holder or OF Manager, as the
case may be;
(2) any repayment or prepayment of all or part of a
Funding Portion being made on a date other than the
relevant Payment Date.
(b) Without limitation to the indemnity contained in clause
11.1(a), that indemnity includes the amount determined
by the Note Holder or OF Manager, as the case may be, as
being incurred by reason of the liquidation or
re-employment of deposits or other funds acquired or
contracted for by the Note Holder or OF Manager, as the
case may be to
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
fund or maintain the Principal Outstanding or the
relevant Funding Portion and includes, but is not
limited to, loss of margin.
11.2 Continuing indemnities and evidence of loss
(a) Each indemnity of the Issuer contained in this agreement
is a continuing obligation of the Issuer, despite:
(1) any settlement of account; or
(2) the occurrence of any other thing,
and remains in full force and effect until:
(3) all moneys owing, contingently or otherwise, under
any of the Material Documents have been paid in full;
and
(4) the Outstanding Moneys are fully and finally repaid.
(b) Each indemnity of the Issuer contained in this agreement
is an additional, separate and independent obligation of
the Issuer and no one indemnity limits the generality of
any other indemnity.
(c) Each indemnity of the Issuer contained in this agreement
survives the termination of any Transaction Document.
(d) A certificate under the hand of an Officer of the OF
Manager detailing the amount of any damage, loss,
liability, cost, charge, expense, outgoing or payment
covered by any indemnity in this agreement is sufficient
evidence unless the contrary is proved.
11.3 Funds available for indemnity
The obligations of the Issuer under this clause 11 shall be
payable solely to the extent of funds invested or available
for investment under clause 3.
11.4 Negligence, wilful default or breach of law
The indemnities in this clause 11 do not extend to any
liability, loss, cost, charge or expense that is finally and
judicially determined to result from any negligence, wilful
default or breach of law by the other parties to this
agreement.
11.5 Notification from Note Holder or OF Manager
If the Note Holder or the OF Manager receives written notice
of any act, matter or thing which may give rise to a
liability, loss, cost, charge or expense in relation to
which the Issuer would be required to indemnify it under
this clause 11, the Note Holder or the OF Manager (as the
case may be) will notify the Issuer of that act, matter or
thing giving such details as it is practicable to give as
soon as it is reasonably practicable and in any event within
5 Banking Days of it coming to its attention, provided that
failure to do so will not result in any loss or reduction in
the indemnity contained in this clause 11 unless the Issuer
has been prejudiced in any material respect by such failure.
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
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12 Tax, costs and expenses
12.1 Tax
(a) The Issuer must and the SF Manager must cause the Issuer
to pay any Tax, other than an Excluded Tax in respect of
the Securitisation Fund or a Tax referred to in clause
12.3, in respect of the execution, delivery,
performance, release, discharge, amendment, enforcement
or attempted enforcement or otherwise in respect of any
of the following:
(1) any Material Document;
(2) any agreement or document entered into or signed
under any Material Document; and
(3) any transaction contemplated under any Material
Document or any agreement or document described in
clause 12.1(a)(2).
(b) The Issuer must and the SF Manager must cause the Issuer
to pay any fine, penalty or other cost in respect of a
failure to pay any Tax described in clause 12.1(a)
except to the extent that the fine, penalty or other
cost is caused by the Note Holder's failure to lodge
money received from the Issuer before the due date for
lodgement.
(c) The Issuer indemnifies out of the property of the
Securitisation Fund the Note Holder against any amount
payable under clause 12.1(a) or 12.1(b) or both.
12.2 Costs and expenses
The Issuer must, and the SF Manager must cause the Issuer
to, pay all costs and expenses of the Note Holder and the OF
Manager and any employee, Officer, agent or contractor of
the Note Holder and the OF Manager in relation to:
(a) the negotiation, preparation, execution, delivery,
stamping, registration, completion, variation and
discharge of any Material Document or any agreement or
document described in clause 12.1(a);
(b) the enforcement, protection or waiver, or attempted
enforcement or protection, of any rights under any
Material Document or any agreement or document described
in clause 12.1(a);
(c) the consent or approval of the Note Holder or OF Manager
given under any Material Document or any agreement or
document described in clause 12.1(a); and
(d) any enquiry by any Governmental Agency involving a
Transaction Party,
including, but not limited to, any administration costs of
the Note Holder or the OF Manager, as the case may be, in
connection with the matters referred to in clause 12.2(b)
and 12.2(d) and any legal costs and expenses (charged at the
usual commercial rates of the relevant legal services
provider) and any professional consultant's fees for any of
the above on a full indemnity basis.
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
12.3 Goods and services tax
(a) Subject to clause 12.3(b), all amounts referred to in
this agreement which are relevant in determining a
payment to be made by one party to another are exclusive
of GST unless specifically indicated otherwise.
(b) If a party to this agreement is entitled to be
indemnified or reimbursed for any cost or expense
incurred by that party, then the indemnity or
reimbursement will be calculated by reference to the
GST-exclusive amount of that cost or expense, increased
by an amount equal to that part of the cost or expense
for which the party or its representative member is not
entitled to an input tax credit but would be entitled if
that entity was entitled to a full input tax credit. For
the avoidance of doubt, the amount calculated under this
clause 12.3(b) is a GST-exclusive amount.
(c) If GST is levied or imposed on or in respect of any
supply made under or in connection with this agreement
for which the consideration is a monetary payment, then
the consideration provided for that supply is increased
by an amount equal to the consideration multiplied by
the rate at which that GST is levied or imposed. This
additional amount is payable to the party with the
liability to remit GST in the manner and at the time
when the consideration to which it relates is payable.
(d) The recipient of any consideration for a taxable supply
(whether in money or otherwise) must provide to the
other party a GST tax invoice (or any other thing
required under any legislation concerned with GST) in
the form required by the A New Tax System (Goods and
Services Tax) Xxx 0000 or that other legislation.
(e) Where an "adjustment event", as defined in the A New Tax
System (Goods and Services Tax) Xxx 0000 occurs under
this agreement, the parties shall do all things
necessary to ensure that the adjustment event may be
appropriately recognised, including the issue of an
"adjustment note", as that term is defined in that Act.
--------------------------------------------------------------------------------
13 Interest on overdue amounts
13.1 Payment of interest
The Issuer must, and the SF Manager must cause the Issuer
to, pay interest on:
(a) any of the Outstanding Moneys due and payable, but
unpaid; and
(b) on any interest payable but unpaid in accordance with
clause 5.
13.2 Accrual of interest
The interest payable under this clause 13:
(a) accrues from day to day from and including the due date
for payment up to the actual date of payment, before
and, as an additional and independent obligation, after
any judgment or other thing into which the liability to
pay the Outstanding Moneys becomes merged; and
(b) may be capitalised by the Note Holder on any relevant
Payment Date.
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
13.3 Rate of interest
The rate of interest payable under this clause 13 on any
part of the Outstanding Moneys is the higher of:
(a) the Overdue Rate; and
(b) the rate fixed or payable under a judgment or other
thing referred to in clause 13.2(a).
--------------------------------------------------------------------------------
14 Assignment
14.1 Assignment by Transaction Party
A Transaction Party must not transfer or assign any of its
rights or obligations under any Material Document without
the prior written consent of the OF Manager, the Note Holder
and each Designated Rating Agency.
14.2 Assignment by Note Holder and OF Manager
Neither the Note Holder nor the OF Manager may assign any of
its rights or transfer by novation any of its rights and
obligations under this agreement or any Note without the
prior written consent of the other parties and a prior
written notice of such assignment been given to each
Designated Rating Agency. Any such assignment must contain
an acknowledgment that the assignee is bound by the
provisions of this agreement.
14.3 Assist transfer or assignment
At the request of the Note Holder or OF Manager, the Issuer
and the SF Manager must do any thing including, but not
limited to, executing any documents or amending any Material
Document, to effect any transfer or assignment under this
clause 14.
14.4 Participation permitted
The Note Holder and OF Manager may grant by way of
sub-participation (being a right to share in the financial
effects of this agreement, without any rights against the
Issuer) all or part of the Note Holder's or OF Manager's, as
the case may be, rights and benefits under this agreement to
any other person without having to obtain the consent of or
to notify the Issuer or the SF Manager.
14.5 Lending Office
(a) The Note Holder may change its Lending Office at any
time.
(b) The Note Holder must promptly notify the Issuer and the
SF Manager of any such change.
14.6 Disclosure
Any party may disclose to a proposed assignee, transferee or
sub-participant any information relating to any other party
or the Transaction Documents whether or not confidential and
whether or not the disclosure would be in breach of any law
or of any duty owed to that other party.
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
14.7 No increase in costs
If the Note Holder or OF Manager assigns or transfers any of
its rights or obligations under any Material Document or
changes its Lending Office the Issuer is not required to pay
any net increase in the aggregate amount of costs, Taxes,
fees or charges which:
(a) are a direct consequence of the transfer or assignment
or change of Lending Office; and
(b) the Note Holder or OF Manager as the case may be, or its
transferee or assignee was aware of or ought reasonably
to have been aware of, at the time of the transfer or
assignment or change of Lending Office.
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15 General
15.1 Confidential information
The Note Holder and OF Manager may, for the purpose of
exercising any Power, disclose to any person any documents
or records of, or information about, any Transaction
Document, or the assets, business or affairs of any
Transaction Party, whether or not confidential and whether
or not the disclosure would be in breach of any law or of
any duty owed to any Transaction Party.
15.2 Performance by Note Holder of obligations
If a Transaction Party defaults in fully and punctually
performing any obligation contained or implied in any
Transaction Document, the Note Holder and OF Manager may,
without prejudice to any Power do all things necessary or
desirable, in the opinion of the Note Holder or OF Manager,
as the case may be, to make good or attempt to make good
that default to the satisfaction of the Note Holder or OF
Manager, as the case may be.
15.3 Transaction Party to bear cost
Without prejudice to clause 10, any thing which must be done
by a Transaction Party under any Material Document, whether
or not at the request of the Note Holder or OF Manager, must
be done at the cost of the Transaction Party.
15.4 Notices
(a) Any notice or other communication including, but not
limited to, any request, demand, consent or approval, to
or by a party to any Material Document:
(1) must be in legible writing and in English addressed
as shown below (or if sent by facsimile, to the
facsimile numbers below) and marked to the
attention of the following:
(A) if to the Note Holder:
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
Address: Xxxxx 00
000 Xxxx Xxxxxx
Xxxxxx, XXX, 0000
Attention: Head of Debt Markets/Manager -
Securitisation
Facsimile: (00) 0000 0000; and
(B) if to the Issuer:
Address: Xxxxx 00
000 Xxxx Xxxxxx
Xxxxxx, XXX, 0000
Attention: Head of Debt Markets/Manager -
Securitisation
Facsimile: (00) 0000 0000;
(C) if to the SF Manager:
Address: Xxxxx 00,
000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx 0000
Attention: Manager - Capital Markets
Facsimile: (00) 0000 0000; and
(D) if to the OF Manager:
Address: Xxxxx 00,
000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx 0000
Attention: Manager - Capital Markets
Facsimile: (00) 0000 0000;
or as specified to the sender by any party by notice;
(2) where the sender is a company, must be signed by an
Officer or under the common seal of the sender;
(3) is regarded as being given by the sender and
received by the addressee:
(A) if by delivery in person, when delivered to the
addressee;
(B) if by post, on delivery to the addressee; or
(C) if by facsimile transmission, as long as it is
legibly received, when transmitted to the
addressee,
but if the delivery or receipt is on a day which is
not a Banking Day or is after 4.00 pm (addressee's
time) it is regarded as received at 9.00 am on the
following Banking Day;
(4) can be relied upon by the addressee and the
addressee is not liable to any other person for any
consequences of that reliance if the addressee
believes it to be genuine, correct and authorised
by the sender; and
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
(5) if to the Note Holder must be copied to the OF
Manager and if to the Issuer must be copied to the
SF Manager.
(b) A facsimile transmission is regarded as legible unless
the addressee telephones the sender within 2 hours after
the transmission is received or regarded as received
under clause 15.4(a)(3) and informs the sender that it
is not legible.
(c) In this clause 15.4, a reference to an addressee
includes a reference to an addressee's Officers, agents
or employees.
15.5 Governing law and jurisdiction
(a) This agreement is governed by the laws of New South
Wales.
(b) The parties irrevocably submit to the non-exclusive
jurisdiction of the courts of New South Wales.
15.6 Prohibition and enforceability
(a) Any provision of, or the application of any provision
of, any Material Document or any Power which is
prohibited in any jurisdiction is, in that jurisdiction,
ineffective only to the extent of that prohibition.
(b) Any provision of, or the application of any provision
of, any Material Document which is void, illegal or
unenforceable in any jurisdiction does not affect the
validity, legality or enforceability of that provision
in any other jurisdiction or of the remaining provisions
in that or any other jurisdiction.
15.7 Waivers
(a) Waiver of any right arising from a breach of this
agreement or of any Power arising upon default under
this agreement must be in writing and signed by the
party granting the waiver.
(b) A failure or delay in exercise, or partial exercise, of:
(1) a right arising from a breach of this agreement; or
(2) a Power created or arising upon default under this
agreement,
does not result in a waiver of that right or Power.
(c) A party is not entitled to rely on a delay in the
exercise or non-exercise of a right or Power arising
from a breach of this agreement or on a default under
this agreement as constituting a waiver of that right or
Power.
(d) A party may not rely on any conduct of another party as
a defence to exercise of a right or Power by that other
party.
(e) This clause may not itself be waived except by writing.
15.8 Variation
A variation of any term of this agreement must be in writing
and signed by the parties. No variation may be made if it
will cause the current rating of any bonds issued by the
Issuer to be downgraded or withdrawn by any Designated
Rating Agency.
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
15.9 Cumulative rights
The Powers are cumulative and do not exclude any other
right, power, authority, discretion or remedy of the Note
Holder or OF Manager.
15.10 Attorneys
Each of the Attorneys executing this agreement states that
the Attorney has no notice of the revocation of the power of
attorney appointing that Attorney.
15.11 Binding Obligations
Each party to this agreement acknowledges that the
obligations expressed in this agreement are binding upon it.
15.12 Winding up of Securitisation Fund
Prior to the Termination Date, neither the Note Holder nor
the OF Manager may seek to terminate or wind up the
Securitisation Fund as a consequence of any breach of this
agreement or any Note by the Issuer or the SF Manager.
15.13 Termination
This agreement can only be terminated on or after the
Termination Date.
15.14 Counterparts
(a) This agreement may be executed in any number of
counterparts.
(b) All counterparts, taken together, constitute 1
instrument.
(c) A party may execute this agreement by signing any
counterpart.
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
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Schedule 1 - Funding Notice (clause 4.2)
To: Perpetual Limited
in its capacity as trustee of the Origination Fund
(Note Holder)
Attention: Head of Debt Markets/Manager - Securitisation
And: ME Portfolio Management Limited
in its capacity as manager of the Origination Fund
(OF Manager)
Attention: Manager - Capital Markets
--------------------------------------------------------------------------------
We refer to the Payment Funding Facility Agreement dated [insert date]
(Agreement). Pursuant to clause 4 of the Agreement:
(a) we give you notice that we wish to request the Issuer to issue to the
Note Holder a Note pursuant to the Agreement on [insert date] (Funding
Date);
(b) the aggregate principal amount of the Note is: $[insert amount];
(c) we request that the proceeds be remitted to account number [insert
details] at [insert address] /[insert alternative instructions];
(d) The relevant Payment Period is a [Quarterly/Monthly] Payment Period
commencing on the Funding Date;
(e) The Issuer represents and warrants that:
(1) [(except as disclosed in paragraph (e)(2))] each representation and
warranty given by it in the Agreement is to the best of its
knowledge, true, correct and not misleading as though it had been
made at the date of this Funding Notice and the Funding Date
specified above in respect of the facts and circumstances then
subsisting;[ and]
(2) details of the exceptions to paragraph (e)(1) are as follows:
[insert details], and the Issuer [has taken/proposes] the following
remedial action [insert details]];
(f) The SF Manager represents and warrants that:
(1) [(except as disclosed in paragraph (f)(2))] each representation and
warranty given by it in the Agreement is to the best of its
knowledge, true, correct and not misleading as though it had been
made at the date of this Funding Notice and the Funding Date
specified above in respect of the facts and circumstances then
subsisting;[ and]
(2) details of the exceptions to paragraph (f)(1) are as follows:
[insert details], and the SF Manager [has taken/proposes] the
following remedial action [insert details]].
Expressions defined in the Agreement have the same meaning when used
in this Funding Notice.
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Payment Funding Facility Agreement - SMHL Global Fund No. 9
Dated:
Signed for and on behalf of
ME Portfolio Management Limited
----------------------------------------
Officer's signature
----------------------------------------
Name (please print)
Signed for and on behalf of
Perpetual Limited
----------------------------------------
Officer's signature
----------------------------------------
Name (please print)
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page 37
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Schedule 2 - Conditions
Payment Funding Facility Agreement - SMHL Global Fund No. 9
PERPETUAL LIMITED
ABN 86 000 000 000
in its capacity as trustee of the SMHL Global Fund No. 9
of Xxxxx 00, 000 Xxxx Xxxxxx, Xxxxxx, XXX, 0000
("Issuer")
whose office for the purposes of payment is at Xxxxx 00, 000 Xxxx Xxxxxx,
Xxxxxx, XXX, 0000 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.9. The terms and conditions of the issue of this
Note and repayment are constituted by this Note and the Payment
Funding Facility Agreement for the Issue and Repayment of Notes dated
[insert date] between the Issuer, the Note Holder, ME Portfolio
Management Limited (ABN 79 005 964 134) of Xxxxx 00, 000 Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx, in its capacity as manager of the XXXX
Xxxxxx Xxxx Xx. 0 (XX Xxxxxxx) and ME Portfolio Management Limited
(ABN 79 005 964 134) of Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx, in its capacity as manager of the Superannuation Members'
Home Loans Origination Fund No. 3 (OF Manager) (Agreement). Terms
defined in the Agreement have the same meaning when used in these
Conditions.
(b) Subject to clause 3, the Issuer promises to repay the principal
amount in accordance with the Agreement.
(c) This Note may only be assigned or transferred with the prior written
consent of the Issuer and subject to and in accordance with the
Agreement.
2 Derivation of payment
The parties acknowledge that the payments to be made by the Issuer under this
Note are derived by it from the receipts from a "mortgage" or "pool of
mortgages", as those terms are defined in section 3 of the Duties Xxx 0000
(Vic).
3 Extent of liability of Issuer
(a) Clause 26 of the Master Trust Deed applies to the obligations and
liabilities of the Issuer and SF Manager under this Note.
(b) The Issuer issues this Note in its capacity as trustee of the
Securitisation Fund and in no other capacity (except where the
Transaction Documents provide otherwise). Subject to paragraph 3(d)
below, a liability of the Issuer arising under or in connection with
this Note or the Agreement or the Securitisation Fund is limited to
and can be enforced against the Issuer only to the extent to which it
can be satisfied out of the assets and property of the Securitisation
Fund which are available to satisfy the right of the Trustee
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to be exonerated or indemnified for the liability. This limitation of
the Issuer's liability applies despite any other provision of this
Note or the Agreement and extends to all liabilities and obligations
of the Issuer in any way connected with any representation, warranty,
conduct, omission, agreement or transaction related to this Note or
the Agreement.
(c) Subject to paragraph (d) below, no person (including any Relevant
Party) may take action against the Issuer in any capacity other than
as trustee of the Securitisation Fund or seek the appointment of a
receiver (except under the Security Trust Deed), or a liquidator, an
administrator or any similar person to the Issuer or prove in any
liquidation, administration or arrangement of or affecting the Issuer
except in relation to the assets of the Securitisation Fund).
(d) The provisions of this clause 3 shall not apply to any obligation or
liability of the Issuer to the extent that it is not satisfied
because under a Transaction Document or by operation of law there is
a reduction in the extent of the Issuer's indemnification or
exoneration out of the assets of the Securitisation Fund, as a result
of the Issuer's fraud, negligence or wilful default.
(e) It is acknowledged that the Relevant Parties are responsible under
this Note and the Agreement and the Transaction Documents for
performing a variety of obligations relating to the Securitisation
Fund. No act or omission of the Issuer (including any related failure
to satisfy its obligations under this Note or the Agreement) will be
considered fraud, negligence or wilful default of the Issuer for the
purposes of clause 3(d) above to the extent to which the act or
omission was caused or contributed to by any failure by any Relevant
Party or any other person who has been delegated or appointed by the
Issuer in accordance with the Transaction Documents to fulfil its
obligations relating to the Securitisation Fund or by any other act
or omission of a Relevant Party or any other person.
(f) No attorney, agent, receiver or receiver and manager appointed in
accordance with this Note or the Agreement or any other Transaction
Document has authority to act on behalf of the Issuer in a way which
exposes the Issuer to any personal liability and no act or omission
of any such person will be considered fraud, negligence or wilful
default of the Issuer for the purposes of clause 3(d) above.
(g) In this clause 3 Relevant Parties means any party to a Transaction
Document other than the Issuer.
(h) The Issuer is not obliged to do or refrain from doing anything under
this Note or the Agreement (including incur any liability) unless the
Issuer's liability is limited in the same manner as set out in
paragraphs (a) to (f) of this clause 3.
4 Extent of liability of Note Holder
(a) Clause 26 of the Master Trust Deed applies to the obligations and
liabilities of the Note Holder and OF Manager under this Note.
(b) The Note Holder 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
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any representation, warranty, conduct, omission, agreement or
transaction related to this Note or the Agreement.
(c) The parties other than the Note Holder may not take action against
the Note Holder in any capacity other than as trustee of the
Origination Fund or seek the appointment of a receiver (except in
relation to property of the Origination Fund), a liquidator, an
administrator or any similar person to the Note Holder or prove in
any liquidation, administration or arrangement of or affecting the
Note Holder (except in relation to property of the Origination Fund).
(d) The provisions of this clause 4 shall not apply to any obligation or
liability of the Note Holder to the extent that it is not satisfied
because under the trust deed establishing the Origination Fund or by
operation of law there is a reduction in the extent of the Note
Holder's indemnification out of the assets of the Origination Fund,
as a result of the Note Holder's fraud, negligence or wilful default.
(e) It is acknowledged that the OF Manager is responsible under the trust
deed establishing the Origination Fund for performing a variety of
obligations relating to the Origination Fund, including under this
Note and the Agreement. No act or omission of the Note Holder
(including any related failure to satisfy its obligations or breach
of representation or warranty under this Note or the Agreement) will
be considered fraud, negligence or wilful default of the Note Holder
for the purposes of paragraph (d)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.
(f) No attorney, agent, receiver or receiver and manager appointed in
accordance with this Note or the Agreement has authority to act on
behalf of the Note Holder in a way which exposes the Note Holder to
any personal liability and no act or omission of any such person will
be considered fraud, negligence or wilful default of the Note Holder
for the purposes of paragraph (d) of this clause 4.
(g) The Note Holder is not obliged to do or refrain from doing anything
under this Note or the Agreement (including incur any liability)
unless the Note Holder's liability is limited in the same manner as
set out in paragraphs (a) to (f) of this clause 4.
5 Extent of liability of Issuer and Note Holder
For the purposes of this Note, the expression "wilful default":
(a) in relation to the Issuer and the Note Holder, means a wilful default
of this Note and the Agreement by the Issuer or the Note Holder, as
the case may be:
(1) other than a default which:
(A) arises out of a breach of a Transaction Document by a
person other than the Issuer, Note Holder or any person
referred to in clause 5(b) in relation to the Issuer or
the Note Holder;
(B) arises because some other act or omission is a
precondition to the relevant act or omission of the Issuer
or the Note Holder, and that other act or omission does
not occur;
(C) is in accordance with a lawful court order or direction or
is required by law; or
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(D) is in accordance with an instruction or direction given to
it by any person in circumstances where that person is
authorised to do so by any Transaction Document; and
(2) in circumstances where had it not committed that default it
would have been entitled to recoupment, reimbursement or a
right of indemnity for its costs and expenses (if any) in
complying with this Note and the Agreement from the Fund.
(b) A reference to the "fraud", "negligence" or "wilful default" of the
Issuer or the Note Holder means the fraud, negligence or wilful
default of the Issuer or the Note Holder, as the case may be, and of
the officers or employees, but not of the agents or delegates of the
Issuer or Note Holder, unless the Issuer or the Note Holder is liable
for the acts or omissions of such other person under the terms of
this Note and the Agreement.
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Schedule 3 - Report on assessment of compliance with Regulation AB servicing
criteria
ME Portfolio Management Limited
Xxxxx 00
000 Xxxxxxx Xxxxxx
Xxxxxxxxx XXX 0000
[________________] (the "Asserting Party") is responsible
for assessing compliance as of June 30, [ ] and for the period from [ ] (date
of issuance of SMHL Global Fund No. 9) through June 30, [ ] (the "Reporting
Period") with the servicing criteria set forth in Section 229.1122(d) of the
Code of Federal Regulations (the "CFR"), except for criteria
229.1122(d)[insert section numbers in Regulation AB that are not applicable to
Asserting Party] of the CFR, which have not been determined pursuant to the
transaction documents for the SMHL Global Fund No. 9 to be, and the Asserting
Party has concluded are not, servicing criteria that the Asserting Party
performs, or in which the Asserting Party participates, in relation to SMHL
Global Fund No. 9 (the "Applicable Servicing Criteria"). This assessment of
compliance is provided in relation to SMHL Global Fund No. 9.
The Asserting Party has assessed its compliance with the
Applicable Servicing Criteria for the Reporting Period and has concluded that
the Asserting Party has complied, in all material respects, with the
Applicable Servicing Criteria in relation to SMHL Global Fund No. 9.
[____________], an independent registered public accounting
firm, has issued an attestation report on the assessment of compliance with
the Applicable Servicing Criteria for the Reporting Period as set forth in
this assertion.
[NAME OF ASSERTING PARTY]
Date: ________________________
By:
Name: ________________________
Title: ________________________
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Schedule 4 - Servicing Criteria to be addressed in assessment of compliance
--------------------------------------------------------------------------------- ---------------------
APPLICABLE
SERVICING CRITERIA SERVICING CRITERIA
---------------------------- ---------------------------------------------------- ---------------------
Reference Criteria
---------------------------- ---------------------------------------------------- ---------------------
General Servicing Considerations
---------------------------- ---------------------------------------------------- ---------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor
any performance or other triggers and events of
default in accordance with the transaction
agreements.
---------------------------- ---------------------------------------------------- ---------------------
1122(d)(1)(ii) If any material servicing activities are
outsourced to third parties, policies and
procedures are instituted to monitor the third
party's performance and compliance with such
servicing activities.
---------------------------- ---------------------------------------------------- ---------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to
maintain a back-up servicer for the mortgage
loans are maintained.
---------------------------- ---------------------------------------------------- ---------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is
in effect on the party participating in the
servicing function throughout the reporting period
in the amount of coverage required by and otherwise
in accordance with the terms of the transaction
agreements.
---------------------------- ---------------------------------------------------- ---------------------
Cash Collection and Administration
---------------------------- ---------------------------------------------------- ---------------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the
appropriate custodial bank accounts and related
bank clearing accounts no more than two business
days following receipt, or such other number of
days specified in the transaction agreements.
---------------------------- ---------------------------------------------------- ---------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of
an obligor or to an investor are made only by
authorized personnel.
---------------------------- ---------------------------------------------------- ---------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding
collections, cash flows or distributions, and any
interest or other fees charged for such advances,
are made, reviewed and approved as specified in
the transaction agreements.
---------------------------- ---------------------------------------------------- ---------------------
1122(d)(2)(iv) The related accounts for the transaction, such as
cash reserve accounts or accounts established as
a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of
cash) as set forth in the transaction agreements.
---------------------------- ---------------------------------------------------- ---------------------
1122(d)(2)(v) Each custodial account is maintained at a
federally insured depository institution as set
forth in the
---------------------------- ---------------------------------------------------- ---------------------
43
transaction agreements. For purposes
of this criterion, "federally insured depository
institution" with respect to a foreign financial
institution means a foreign financial institution
that meets the requirements of Rule 13k-1(b)(1)
of the Securities Exchange Act.
---------------------------- ---------------------------------------------------- ---------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent
unauthorized access.
---------------------------- ---------------------------------------------------- ---------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis
for all asset-backed securities related bank
accounts, including custodial accounts and
related bank clearing accounts. These
reconciliations are (A) mathematically accurate;
(B) prepared within 30 calendar days after the
bank statement cutoff date, or such other number
of days specified in the transaction agreements;
(C) reviewed and approved by someone other than
the person who prepared the reconciliation; and
(D) contain explanations for reconciling items.
These reconciling items are resolved within 90
calendar days of their original identification,
or such other number of days specified in the
transaction agreements.
---------------------------- ---------------------------------------------------- ---------------------
Investor Remittances and Reporting
---------------------------- ---------------------------------------------------- ---------------------
1122(d)(3)(i) Reports to investors, including those to be filed
with the Commission, are maintained in accordance
with the transaction agreements and applicable
Commission requirements. Specifically, such
reports (A) are prepared in accordance with
timeframes and other terms set forth in the
transaction agreements; (B) provide information
calculated in accordance with the terms specified
in the transaction agreements; (C) are filed with
the Commission as required by its rules and
regulations; and (D) agree with investors' or the
trustee's records as to the total unpaid
principal balance and number of mortgage loans
serviced by the Servicer.
---------------------------- ---------------------------------------------------- ---------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted
in accordance with timeframes, distribution
priority and other terms set forth in the
transaction agreements.
---------------------------- ---------------------------------------------------- ---------------------
1122(d)(3)(iii) Disbursements made to an investor are posted
within two business days to the Servicer's
investor records, or such other number of days
specified in the transaction agreements.
---------------------------- ---------------------------------------------------- ---------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor
reports agree with cancelled checks, or other form
of payment, or custodial bank statements.
---------------------------- ---------------------------------------------------- ---------------------
Pool Asset Administration
---------------------------- ---------------------------------------------------- ---------------------
1122(d)(4)(i) Collateral or security on mortgage loans is
maintained as required by the transaction
agreements or related mortgage loan documents.
---------------------------- ---------------------------------------------------- ---------------------
44
---------------------------- ---------------------------------------------------- ---------------------
1122(d)(4)(ii) Mortgage loan and related documents are
safeguarded as required by the transaction
agreements
---------------------------- ---------------------------------------------------- ---------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the
asset pool are made, reviewed and approved in
accordance with any conditions or requirements in
the transaction agreements.
---------------------------- ---------------------------------------------------- ---------------------
1122(d)(4)(iv) Payments on mortgage loans, including any
payoffs, made in accordance with the related
mortgage loan documents are posted to the
Servicer's obligor records maintained no more
than two business days after receipt, or such
other number of days specified in the transaction
agreements, and allocated to principal, interest
or other items (e.g., escrow) in accordance with
the related mortgage loan documents.
---------------------------- ---------------------------------------------------- ---------------------
1122(d)(4)(v) The Servicer's records regarding the mortgage loans
agree with the Servicer's records with respect to
an obligor's unpaid principal balance.
---------------------------- ---------------------------------------------------- ---------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an
obligor's mortgage loans (e.g., loan
modifications or re-agings) are made, reviewed
and approved by authorized personnel in
accordance with the transaction agreements and
related pool asset documents.
---------------------------- ---------------------------------------------------- ---------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g.,
forbearance plans, modifications and deeds in
lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated,
conducted and concluded in accordance with the
timeframes or other requirements established by
the transaction agreements.
---------------------------- ---------------------------------------------------- ---------------------
1122(d)(4)(viii) Records documenting collection efforts are
maintained during the period a mortgage loan is
delinquent in accordance with the transaction
agreements. Such records are maintained on at
least a monthly basis, or such other period
specified in the transaction agreements, and
describe the entity's activities in monitoring
delinquent mortgage loans including, for example,
phone calls, letters and payment rescheduling
plans in cases where delinquency is deemed
temporary (e.g., illness or unemployment).
---------------------------- ---------------------------------------------------- ---------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return
for mortgage loans with variable rates are computed
based on the related mortgage loan documents.
---------------------------- ---------------------------------------------------- ---------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor
(such as escrow accounts): (A) such funds are
analyzed, in accordance with the obligor's
mortgage loan documents, on at least an annual
basis, or such other period specified in the
transaction agreements; (B)
---------------------------- ---------------------------------------------------- ---------------------
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---------------------------- ---------------------------------------------------- ---------------------
interest on such funds is paid, or credited, to
obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are
returned to the obligor within 30 calendar days
of full repayment of the related mortgage loans,
or such other number of days specified in the
transaction agreements.
---------------------------- ---------------------------------------------------- ---------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as
tax or insurance payments) are made on or before
the related penalty or expiration dates, as
indicated on the appropriate bills or notices for
such payments, provided that such support has
been received by the servicer at least 30
calendar days prior to these dates, or such other
number of days specified in the transaction
agreements.
---------------------------- ---------------------------------------------------- ---------------------
1122(d)(4)(xii) Any late payment penalties in connection with any
payment to be made on behalf of an obligor are
paid from the servicer's funds and not charged to
the obligor, unless the late payment was due to
the obligor's error or omission.
---------------------------- ---------------------------------------------------- ---------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted
within two business days to the obligor's records
maintained by the servicer, or such other number
of days specified in the transaction agreements.
---------------------------- ---------------------------------------------------- ---------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible
accounts are recognized and recorded in accordance
with the transaction agreements.
---------------------------- ---------------------------------------------------- ---------------------
1122(d)(4)(xv) Any external enhancement or other support, identified
in Item 1114(a)(1) through (3) or Item 1115 of
Regulation AB, is maintained as set forth in the
transaction agreements.
---------------------------- ---------------------------------------------------- ---------------------
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--------------------------------------------------------------------------------
Executed as an agreement:
<
ISSUER:
Signed for Perpetual Limited by its attorney in the presence of:
/s/ Simon Oh /s/ Xxxxxxxx Xx
-------------------------- -----------------------------
Witness Attorney
Simon Oh Xxxxxxxx Xx
-------------------------- -----------------------------
Name (please print) Name (please print)
NOTE HOLDER:
Signed for Perpetual Limited by its attorney in the presence of:
/s/ Simon Oh /s/ Xxxxxxxx Xx
-------------------------- -----------------------------
Witness Attorney
Simon Oh Xxxxxxxx Xx
-------------------------- -----------------------------
Name (please print) Name (please print)
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page 47
SF MANAGER:
Signed for
ME Portfolio Management Limited by its attorney in the presence of:
/s/ Xxxx Xxxxxx /s/ X. Xxxxxxxx
----------------------- ---------------------------
Attorney Attorney
Xxxx Xxxxxx X. Xxxxxxxx
----------------------- ---------------------------
Name (please print) Name (please print)
Witnessed by
/s/ Cara Xxxxxxx Xxxxxx
---------------------------
Cara Xxxxxxx Xxxxxx
Xxxxx 00, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx 0000
An Australian Legal
Practitioner within the
meaning of the Legal
Profession Xxx 0000
OF MANAGER:
Signed for
ME Portfolio Management Limited by its attorney in the presence of:
/s/ Xxxx Xxxxxx /s/ X. Xxxxxxxx
----------------------- ---------------------------
Attorney Attorney
Xxxx Xxxxxx X. Xxxxxxxx
----------------------- ---------------------------
Name (please print) Name (please print)
Witnessed by
/s/ Cara Xxxxxxx Xxxxxx
---------------------------
Cara Xxxxxxx Xxxxxx
Xxxxx 00, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx 0000
An Australian Legal
Practitioner within the
meaning of the Legal
Profession Xxx 0000
--------------------------------------------------------------------------------
page 48
