XXXXXXX XXX
EXECUTION DRAFT
Medallion Trust Series 2006-1G
Standby Redraw Facility Agreement
Commonwealth Bank of Australia
ABN 48 123 123 124
Perpetual Trustee Company Limited
ABN 42 000 001 007
Securitisation Advisory Services Pty. Limited
ABN 88 064 133 946
If you have any questions about the details of this document
PLEASE CONTACT XXXXX XXXXXX/XXXXXX XXXXXXX ON + 61 2 9353 4000
Xxxxxxx Xxx
Lawyers
Levels 19-35 Xx. 0 X'Xxxxxxx Xxxxxx Xxxxxx XXX 0000 Xxxxxxxxx
PO Box H3 Australia Square Sydney NSW 1215
T + 61 2 9353 4000 F + 61 2 8220 6700
XXX.XXXXXXXXXX.XXX
Our reference 174/657/80036670
TABLE OF CONTENTS
1....DEFINITIONS AND INTERPRETATION........................................................................1
1.1 Definitions.................................................................................1
1.2 Series Supplement and Master Trust Deed Definitions.........................................4
1.3 Interpretation..............................................................................4
1.4 Trustee Capacity............................................................................6
1.5 Master Trust Deed and Series Supplement.....................................................6
1.6 Incorporated Definitions and other Transaction Documents and provisions.....................6
2....THE FACILITY..........................................................................................6
2.1 Amount......................................................................................6
2.2 Purpose.....................................................................................6
2.3 Extension of Scheduled Termination Date.....................................................7
2.4 Termination of the Facility.................................................................7
3....CONDITIONS PRECEDENT..................................................................................7
3.1 Conditions Precedent to First Advance.......................................................7
3.2 Conditions Precedent to all Advances........................................................7
4....DRAWDOWN..............................................................................................8
4.1 Preparation of Drawdown Notices.............................................................8
4.2 Service of Drawdown Notices.................................................................8
4.3 Requirements of Drawdown Notices............................................................8
4.4 Availability of Facility....................................................................9
4.5 Making of Advances..........................................................................9
4.6 Book Entry Set-off of Advances against Seller Advances......................................9
5....INTEREST..............................................................................................9
5.1 Interest Period.............................................................................9
5.2 Calculation of Interest.....................................................................9
5.3 Payment of Interest........................................................................10
5.4 Interest on Unpaid Interest................................................................10
5.5 Interest on Overdue Sums...................................................................10
6....REPAYMENT OF STANDBY REDRAW FACILITY PRINCIPAL.......................................................10
6.1 Repayment of Standby Redraw Facility Principal during the Availability Period..............10
6.2 Re-Drawing.................................................................................10
6.3 Repayment on Termination...................................................................10
6.4 Payments Under Security Trust Deed.........................................................10
6.5 Principal Chargeoffs.......................................................................11
6.6 Principal Chargeoff Reimbursement..........................................................11
7....PAYMENTS.............................................................................................11
7.1 Time on Due Date and Free of Set-off & Taxes...............................................11
7.2 Certificate................................................................................11
8....ILLEGALITY AND INCREASED COST........................................................................11
8.1 Illegality.................................................................................11
8.2 Increased Cost.............................................................................12
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9....FEES.................................................................................................12
10...REPRESENTATIONS AND WARRANTIES.......................................................................13
10.1 General Representations and Warranties.....................................................13
10.2 Corporate Representations and Warranties...................................................13
10.3 Series Trust Representations and Warranties................................................13
10.4 Representations and Warranties Repeated....................................................14
11...UNDERTAKINGS.........................................................................................14
11.1 General....................................................................................14
11.2 Manager's Undertakings after Manager Event.................................................14
12...EVENTS OF DEFAULT....................................................................................15
12.1 Events of Default..........................................................................15
12.2 Consequences of Event of Default...........................................................16
13...TRUSTEE PROVISIONS...................................................................................16
13.1 Limitation on Trustee's Liability..........................................................16
13.2 Claims against Trustee.....................................................................16
13.3 Breach of Trust............................................................................16
13.4 Acts or omissions..........................................................................16
13.5 No authority...............................................................................17
13.6 No obligation..............................................................................17
14...ASSIGNMENT...........................................................................................17
14.1 Assignment by Trustee......................................................................17
14.2 Assignment by Standby Redraw Facility Provider.............................................17
15...NOTICES..............................................................................................17
15.1 Method of Delivery.........................................................................17
15.2 Deemed Receipt.............................................................................18
15.3 Email......................................................................................18
16...INDEMNITY............................................................................................18
16.1 Indemnity on Demand........................................................................18
16.2 Losses on Liquidation or Re-employment of Deposits.........................................18
16.3 Payment on Quarterly Distribution Date.....................................................19
17...MISCELLANEOUS........................................................................................19
17.1 Stamp Duties...............................................................................19
17.2 Waiver.....................................................................................19
17.3 Written Waiver, Consent and Approval.......................................................19
17.4 Severability...............................................................................20
17.5 Survival of Indemnities....................................................................20
17.6 Successors and Assigns.....................................................................20
17.7 Moratorium Legislation.....................................................................20
17.8 Amendments.................................................................................20
17.9 Governing Law..............................................................................20
17.10 Jurisdiction...............................................................................20
17.11 Counterparts...............................................................................21
17.12 Contra proferentem.........................................................................21
17.13 Know your customer.........................................................................21
17.14 Compliance with Regulation AB..............................................................21
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SCHEDULE DRAWDOWN NOTICE..................................................................................22
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THIS STANDBY REDRAW FACILITY AGREEMENT MADE AT SYDNEY ON 3 MARCH 2006
PARTIES COMMONWEALTH BANK OF AUSTRALIA ABN 48 123 123 124 of Level 1,
00 Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxx (the "STANDBY REDRAW
FACILITY PROVIDER")
PERPETUAL TRUSTEE COMPANY LIMITED ABN 42 000 001 007 of Level
12, 000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxx, in its capacity as
trustee of the Series Trust (the "TRUSTEE")
SECURITISATION ADVISORY SERVICES PTY LIMITED ABN 88 064 133
946 of Level 7, 00 Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxx ("SAS" and
also hereinafter included within the expression the "MANAGER")
BACKGROUND
A. The Trustee and the Manager are respectively the trustee and the
manager of the Series Trust.
B. The Manager has requested the Standby Redraw Facility Provider to
provide the Trustee with the Facility in connection with the Approved
Purpose.
C. The Standby Redraw Facility Provider has agreed to provide the Facility
to the Trustee on the terms and conditions contained in this Agreement.
OPERATIVE PROVISIONS
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1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement, unless the contrary intention appears:
"ADVANCE" means the principal amount of each advance to the Trustee by
the Standby Redraw Facility Provider in accordance with this Agreement.
"APPROVED PURPOSE" means the use of an Advance to meet a Redraw
Shortfall in accordance with the Series Supplement.
"AUTHORISED OFFICER" in relation to the Standby Redraw Facility
Provider means any person from time to time appointed by the Standby
Redraw Facility Provider to act as its Authorised Officer for the
purposes of this Agreement and notified to the Trustee.
"AVAILABILITY PERIOD" means the period commencing on the date of this
Agreement and ending on the Termination Date.
"BBSW" in relation to an Interest Period means the rate appearing at
approximately 10.00 am on the first day of that Interest Period on the
Reuters Screen page "BBSW" as being the average of the mean buying and
selling rates appearing on that page for a bill of exchange having a
tenor of three months. If on the first day of a Interest Period fewer
than four banks are quoted on the Reuters Screen page "BBSW" or for any
other reason "BBSW" for an Interest Period cannot be determined in
accordance with the foregoing provisions, then "BBSW" for that Interest
Period means such rate as is specified by the Standby Redraw Facility
Provider having regard to comparable indices then available.
"DRAWDOWN DATE" means, in relation to an Advance or proposed Advance,
the Quarterly Distribution Date immediately following the delivery of
the corresponding Drawdown Notice to the Standby Redraw Facility
Provider in accordance with this Agreement.
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"DRAWDOWN MARGIN" means 0.15% per annum.
"DRAWDOWN NOTICE" means a notice given under clause 4.
"DRAWING" means, subject to clause 4.6, an Advance by way of deposit by
the Standby Redraw Facility Provider in the Collections Account in
accordance with clause 4.5.
"EFFECTIVE CONTROL" means:
(a) control of the composition of the board of directors of SAS;
(b) control of more than half of the voting power of SAS; or
(c) control of more than half of the issued share capital of SAS
excluding any part of such issued share capital which carries
no right to participate beyond a specified amount in the
distribution of either profit or capital.
"EVENT OF DEFAULT" means any of the events set out or referred to in
clause 12.1 as an Event of Default.
"FACILITY" means the standby redraw facility granted to the Trustee by
the Standby Redraw Facility Provider on the terms and conditions of
this Agreement.
"FACILITY LIMIT" means at any given time the lesser of:
(a) A$50 million; and
(b) the Performing Mortgage Loans Amount at that time;
or such greater or lesser amount from time to time agreed in writing by
the Standby Redraw Facility Provider, the Manager and the Rating
Agencies and notified to the Trustee in writing.
"INTEREST PERIOD" means each period determined in accordance with
clause 5.1.
"MANAGER" means SAS or if SAS retires or is removed as manager of the
Series Trusts (as defined in the Master Trust Deed), any then
Substitute Manager, and includes the Trustee when acting as the manager
of the Series Trust in accordance with the provisions of the Master
Trust Deed.
"MANAGER EVENT" means:
(a) SAS ceases to be a body over which the Standby Redraw Facility
Provider has Effective Control; or
(b) SAS ceases to be the manager of the Series Trust.
"MASTER TRUST DEED" means the Master Trust Deed dated 8 October 1997
between the Trustee and SAS, as amended from time to time.
"NET PRINCIPAL" in relation to a Determination Date means the aggregate
of the Principal Collections, the Principal Draw Reimbursement, the
Principal Charge-off Reimbursement and the Other Principal Amounts for
the Collection Period just ended, less the Net Income Shortfall on that
Determination Date, provided that if the above calculation produces an
amount less than zero, then "NET PRINCIPAL" will be zero for that
Determination Date.
"OBLIGATIONS" means all of the liabilities of the Trustee to the
Standby Redraw Facility Provider under this Agreement and, without
limiting the generality of the foregoing, includes any liabilities
which:
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(a) are liquidated;
(b) are present, prospective or contingent;
(c) relate to the payment of money or the performance or omission
of any act;
(d) sound in damages only; or
(e) accrue as a result of any Event of Default.
"PERFORMING MORTGAGE LOANS AMOUNT" means at any time the aggregate of
the following:
(a) the amount outstanding under Mortgage Loans forming part of
the Assets of the Series Trust in relation to which no payment
due from the relevant Borrower has been in arrears by more
than 90 days; and
(b) the amount outstanding under Mortgage Loans forming part of
the Assets of the Series Trust in relation to which a payment
due from the relevant Borrower has been in arrears by more
than 90 days and which are insured under a Mortgage Insurance
Policy.
"PRESCRIBED RATE" in relation to an Interest Period means the sum of:
(a) BBSW for that Interest Period; and
(b) the Drawdown Margin,
or such rate as is otherwise agreed by the Trustee, the Manager and the
Standby Redraw Facility Provider provided that each Rating Agency is
given not less than 3 Business Days prior notice by the Manager of any
variation to the Prescribed Rate and the Prescribed Rate will not be
varied if such variation would result in a reduction in any then
current credit rating of a Security.
"RECEIVER" means a person appointed under or by virtue of the Security
Trust Deed as a receiver or receiver and manager.
"REDRAW AMOUNT" in relation to a Determination Date means the lesser
of:
(a) the then un-utilised portion of the Facility Limit; and
(b) the Redraw Shortfall on that Determination Date.
"REDRAW SHORTFALL" in relation to a Determination Date means the amount
(if any) by which the Net Principal for that Determination Date is
insufficient to meet in full the repayment of Seller Advances made
during or prior to the Collection Period just ended which have not
previously been repaid.
"SCHEDULED TERMINATION DATE" means the date which is 364 days after the
date of this Agreement or such later date specified by the Standby
Redraw Facility Provider pursuant to clause 2.3.
"SERIES SUPPLEMENT" means the Series Supplement dated on or about the
date of this Agreement between the Standby Redraw Facility Provider (as
a Seller and the Servicer), Homepath Pty Limited ABN 35 081 986 530,
SAS and the Trustee.
"SERIES TRUST" means the trust known as the Medallion Trust Series
2006-1G established pursuant to the Master Trust Deed and the Series
Supplement.
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"SPECIFIED RATE" means, on any day, the sum of:
(a) BBSW for the Interest Period that includes that day (or if the
day is not within an Interest Period, BBSW for the first
Business Day of the month that includes that day as if that
month were an Interest Period);
(b) the Drawdown Margin; and
(c) 0.10% per annum.
"STANDBY REDRAW FACILITY PRINCIPAL" means at any given time, the
aggregate of all Advances made to the Trustee less:
(a) the aggregate of all repayments of Standby Redraw Facility
Principal pursuant to this Agreement; and
(b) the aggregate of all Principal Chargeoffs previously allocated
pursuant to clause 9.1 of the Series Supplement to reduce the
then Standby Redraw Facility Principal which have not been
reimbursed pursuant to clause 9.2 of the Series Supplement.
"TERMINATION DATE" means the earlier of:
(a) the Scheduled Termination Date; and
(b) the date on which the Standby Redraw Facility Provider
declares or appoints the Facility terminated in accordance
with this Agreement.
1.2 SERIES SUPPLEMENT AND MASTER TRUST DEED DEFINITIONS
Subject to clause 1.6, unless defined in this Agreement, words and
phrases defined in either or both of the Master Trust Deed and the
Series Supplement have the same meaning in this Agreement. Where there
is any inconsistency in a definition between this Agreement (on the one
hand) and the Master Trust Deed or the Series Supplement (on the other
hand), this Agreement prevails. Where there is any inconsistency in a
definition between the Master Trust Deed and the Series Supplement, the
Series Supplement prevails over the Master Trust Deed in respect of
this Agreement. Subject to clause 1.6, where words or phrases used but
not defined in this Agreement are defined in the Master Trust Deed in
relation to a Series Trust (as defined in the Master Trust Deed) and/or
an Other Trust such words or phrases are to be construed in this
Agreement, where necessary, as being used only in relation to the
Series Trust (as defined in this Agreement) and/or the CBA Trust, as
the context requires.
1.3 INTERPRETATION
In this Agreement, unless the contrary intention appears:
(a) headings are for convenience only and do not affect the
interpretation of this Agreement;
(b) a reference to this "AGREEMENT" includes the Background and
the Schedule;
(c) the expression "PERSON" includes an individual, the estate of
an individual, a body politic, a corporation and a statutory
or other authority or association (incorporated or
unincorporated);
(d) a reference to a person includes that person's executors,
administrators, successors, substitutes and assigns, including
any person taking by way of novation;
(e) subject to clause 1.6, a reference to any document
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or agreement is to such document or agreement as amended,
novated, supplemented, varied or replaced from time to time;
(f) a reference to any legislation or to any section or provision
of any legislation includes any statutory modification or
re-enactment or any statutory provision substituted for that
legislation and all ordinances, by-laws, regulations and other
statutory instruments issued under that legislation, section
or provision;
(g) words importing the singular include the plural (and vice
versa) and words denoting a given gender include all other
genders;
(h) a reference to a clause is a reference to a clause of this
Agreement;
(i) the expression "CERTIFIED" means, in respect of a person,
certified in writing by two Authorised Officers of that person
or by legal counsel acting for that person and "CERTIFY" and
like expressions will be construed accordingly;
(j) a reference to "WILFUL DEFAULT" in relation to the Trustee or
the Manager, means, subject to clause 1.3(k), any wilful
failure by the Trustee to comply with, or wilful breach by the
Trustee or the Manager (as the case may be) of, any of its
obligations under any Transaction Document, other than a
failure or breach which:
(i) A. arises as a result of a breach of a
Transaction Document by a person other than:
1) the Trustee or the Manager (as the
case may be); or
2) any other person referred to in
clause 1.3(k); and
B. the performance of the action (the
non-performance of which gave rise to such
breach) is a pre-condition to the Trustee or
the Manager (as the case may be) performing
the said obligation;
(ii) is in accordance with a lawful court order or
direction or is required by law; or
(iii) is in accordance with a proper instruction or
direction of Investors given at a meeting convened
under any Transaction Document;
(k) a reference to the "FRAUD", "NEGLIGENCE" or "WILFUL DEFAULT"
of the Trustee means the fraud, negligence or wilful default
of the Trustee and of its officers, employees, agents and any
other person where the Trustee is liable for the acts or
omissions of such other person under the terms of any
Transaction Document;
(l) where any word or phrase is given a defined meaning, any other
part of speech or other grammatical form in respect of such
word or phrase has a corresponding meaning;
(m) where any day on which a payment is due to be made or a thing
is due to be done under this Agreement is not a Business Day,
that payment must be made or that thing must be done on the
immediately succeeding Business Day;
(n) a reference to the "CLOSE OF BUSINESS" on any day is a
reference to 5.00 pm on that day;
(o) a reference to time is to local time in Sydney; and
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(p) subject to clause 15.2, each party will only be considered to
have knowledge or awareness of, or notice of, a thing or
grounds to believe anything by virtue of the officers of that
party (or any Related Body Corporate of that party) having day
to day responsibility for the administration or management of
that party's (or a Related Body Corporate of that party's)
obligations in relation to the Series Trust having actual
knowledge, actual awareness or actual notice of that thing, or
grounds or reason to believe that thing (and similar
references will be interpreted in this way). In addition,
notice, knowledge or awareness of an Event of Default, Manager
Default, Trustee Default, Servicer Default or Perfection of
Title Event means notice, knowledge or awareness of the
occurrence of the events or circumstances constituting an
Event of Default, Manager Default, Trustee Default, Servicer
Default or Perfection of Title Event (as the case may be).
1.4 TRUSTEE CAPACITY
In this Agreement, except where provided to the contrary:
(a) (REFERENCES TO TRUSTEE): a reference to the Trustee is a
reference to the Trustee in its capacity as trustee of the
Series Trust only, and in no other capacity; and
(b) (REFERENCES TO ASSETS OF THE TRUSTEE): a reference to the
undertaking, assets, business or money of the Trustee is a
reference to the undertaking, assets, business or money of the
Trustee in the capacity referred to in paragraph (a).
1.5 MASTER TRUST DEED AND SERIES SUPPLEMENT
For the purposes of the Master Trust Deed and the Series Supplement:
(a) (TRANSACTION DOCUMENT): this Agreement is a Transaction
Document; and
(b) (SUPPORT FACILITY): the Facility made available pursuant to
the terms of this Agreement is a Support Facility.
1.6 INCORPORATED DEFINITIONS AND OTHER TRANSACTION DOCUMENTS AND PROVISIONS
Where in this Agreement a word or expression is defined by reference to
its meaning in another Transaction Document or there is a reference to
another Transaction Document or to a provision of another Transaction
Document, any amendment to the meaning of that word or expression or to
that other Transaction Document or provision (as the case may be) will
be of no effect for the purposes of this Agreement unless and until the
amendment is consented to by the parties to this Agreement.
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2. THE FACILITY
2.1 AMOUNT
Subject to this Agreement, the Standby Redraw Facility Provider agrees
to make Advances to the Trustee up to an aggregate principal amount
equal to the Facility Limit.
2.2 PURPOSE
The Manager will direct the Trustee to use, and the Trustee will use,
the proceeds of each Advance under the Facility exclusively for the
Approved Purpose.
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2.3 EXTENSION OF SCHEDULED TERMINATION DATE
(a) (MANAGER TO REQUEST EXTENSION): Not less than 60 days before
the then Scheduled Termination Date, the Manager may deliver a
notice in writing to the Standby Redraw Facility Provider
(with a copy to the Trustee) requesting the Standby Redraw
Facility Provider to extend the Scheduled Termination Date.
(b) (XXXXXXX XXXXXX FACILITY PROVIDER MAY EXTEND): Following
receipt by the Standby Redraw Facility Provider of the notice
referred to in paragraph (a), the Standby Redraw Facility
Provider may, in its absolute discretion, send the Trustee a
notice in writing (copied to the Manager) extending the then
Scheduled Termination Date to the new Scheduled Termination
Date specified in the notice (which must not be more than 364
days after the date of the notice).
2.4 TERMINATION OF THE FACILITY
The Facility will terminate on the Termination Date.
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3. CONDITIONS PRECEDENT
3.1 CONDITIONS PRECEDENT TO FIRST ADVANCE
The Standby Redraw Facility Provider is not obliged to make the first
Advance to the Trustee unless the Standby Redraw Facility Provider has
received each of the following, in form and substance acceptable to the
Standby Redraw Facility Provider:
(a) (THIS AGREEMENT): this Agreement duly executed and delivered
by the Trustee and the Manager;
(b) (POWER OF ATTORNEY): a copy of each power of attorney under
which this Agreement has been or will be executed by the
Trustee and the Manager, certified as a true copy by the
Trustee and the Manager respectively;
(c) (AUTHORISED OFFICERS): a certificate setting out in full the
name and specimen signature of each Authorised Officer of the
Manager;
(d) (SECURITY TRUST DEED): a copy of the Security Trust Deed
executed by the parties thereto and certified as a true copy
by the Manager;
(e) (POOL MORTGAGE INSURANCE POLICY): an executed original
counterpart of the Pool Mortgage Insurance Policy together
with a letter from PMI confirming that it has accepted for
insurance under the Pool Mortgage Insurance Policy the
Mortgage Loans referred to in the certificate attached to the
letter; and
(f) (LEGAL OPINION): a legal opinion addressed to the Standby
Redraw Facility Provider from the Trustee's solicitors in form
and substance satisfactory to the Standby Redraw Facility
Provider.
3.2 CONDITIONS PRECEDENT TO ALL ADVANCES
The obligation of the Standby Redraw Facility Provider to make each
Advance is subject to the further conditions precedent that:
(a) (REPRESENTATIONS AND WARRANTIES TRUE): the representations and
warranties made or deemed to be made by the Trustee in any
Transaction Document are true and correct as of the date of
the corresponding Drawdown Notice and the relevant Drawdown
Date as though made at that date;
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(b) (NO EVENT OF DEFAULT): no Event of Default is subsisting at
the date of the relevant Drawdown Notice and the relevant
Drawdown Date or will result from the provision or
continuation of the Advance; and
(c) (NO NOTICE OF SECURITY INTERESTS): other than in respect of
priorities granted by statute, the Standby Redraw Facility
Provider has not received notice from any person that it
claims to have a Security Interest ranking in priority to or
equal with the Security Interest held by the Standby Redraw
Facility Provider under the Security Trust Deed.
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4. DRAWDOWN
4.1 PREPARATION OF DRAWDOWN NOTICES
If on a Determination Date the Manager determines in accordance with
the Series Supplement that a Redraw Shortfall has occurred in respect
of the Collection Period just ended the Manager must:
(a) (PREPARE DRAWDOWN NOTICE): prepare a Drawdown Notice in
accordance with clause 4.3 requesting an Advance on the next
Quarterly Distribution Date; and
(b) (DELIVER DRAWDOWN NOTICE): deliver the Drawdown Notice to the
Trustee no later than the close of business on the Business
Day which is not less than 3 Business Days before the proposed
Drawdown Date.
4.2 SERVICE OF DRAWDOWN NOTICES
If the Trustee receives a Drawdown Notice from the Manager pursuant to
clause 4.1, it must:
(a) (SIGN DRAWDOWN NOTICE): sign the Drawdown Notice in accordance
with clause 4.3(b); and
(b) (DELIVER DRAWDOWN NOTICE): deliver the signed Drawdown Notice
to the Standby Redraw Facility Provider by the time specified
in clause 4.4(a).
4.3 REQUIREMENTS OF DRAWDOWN NOTICES
A Drawdown Notice must:
(a) (FORM): be in the form of the Schedule (or in such other form
as from time to time agreed amongst the Standby Redraw
Facility Provider, the Manager and the Trustee);
(b) (AUTHORISED OFFICER): be signed by an Authorised Officer of
the Trustee;
(c) (SPECIFY DRAWDOWN DATE): specify the proposed Drawdown Date
for the requested Advance which must be the next Quarterly
Distribution Date;
(d) (IRREVOCABLE): be irrevocable;
(e) (REDRAW AMOUNT): specify the Redraw Amount; and
(f) (CALCULATION): provide details of the calculation of the
Redraw Amount.
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4.4 AVAILABILITY OF FACILITY
The Trustee may make a Drawing on any Quarterly Distribution Date
during the Availability Period provided that:
(a) (RECEIPT OF DRAWDOWN NOTICE): the Standby Redraw Facility
Provider has received not later than 11.00 am on the Business
Day which is not less than 2 Business Days before the proposed
Drawdown Date (or such later time as the Standby Redraw
Facility Provider may agree), a duly completed Drawdown
Notice; and
(b) (CONDITIONS PRECEDENT): the requirements of clause 3 have been
satisfied or waived in writing by the Standby Redraw Facility
Provider before the Drawdown Notice is given.
4.5 MAKING OF ADVANCES
After receipt of a Drawdown Notice the amount of the Advance requested
in a Drawdown Notice will, subject to clause 4.6 but otherwise without
set-off or deduction on any other account, be deposited by the Standby
Redraw Facility Provider in the Collections Account in immediately
available funds no later than 10.00 am on the Drawdown Date.
4.6 BOOK ENTRY SET-OFF OF ADVANCES AGAINST SELLER ADVANCES
The Standby Redraw Facility Provider may make an Advance on a Drawdown
Date by way of a book entry in its records to the extent that it also
makes a book entry in its records reducing the amount of the
outstanding Seller Advances made by it to be repaid by such Advance on
that Drawdown Date by the relevant amount of such Advance.
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5. INTEREST
5.1 INTEREST PERIOD
(a) (DURATION): The duration of the Facility is divided into
successive Interest Periods.
(b) (FIRST INTEREST PERIOD): The first Interest Period commences
on (and includes) the first Drawdown Date and ends on (but
excludes) the next Quarterly Distribution Date.
(c) (SUCCEEDING INTEREST PERIODS): Each succeeding Interest Period
commences on (and includes) a Quarterly Distribution Date and
ends on (but excludes) the next Quarterly Distribution Date.
(d) (LAST INTEREST PERIOD): The last Interest Period ends on (but
excludes) the first Quarterly Distribution Date that:
(i) follows the Termination Date; and
(ii) upon which all moneys the payment or repayment of
which form part of the Obligations are paid or repaid
in full to the Standby Redraw Facility Provider.
5.2 CALCULATION OF INTEREST
Interest on the Standby Redraw Facility Principal accrues from day to
day in respect of each Interest Period at the Prescribed Rate for that
Interest Period on the amount of the Standby Redraw Facility Principal
on that day and based on a 365 day year.
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5.3 PAYMENT OF INTEREST
The Trustee at the direction of the Manager will on each Quarterly
Distribution Date pay to the Standby Redraw Facility Provider so much
of the then accrued interest on the Standby Redraw Facility Principal
as is available for this purpose in accordance with the Series
Supplement.
5.4 INTEREST ON UNPAID INTEREST
If any payment by the Trustee on a Quarterly Distribution Date pursuant
to clause 5.3 is insufficient to pay the full amount of the then
accrued interest on the Standby Redraw Facility Principal, such unpaid
accrued interest will in turn accrue interest (as a separate and
independent obligation) until paid at the Prescribed Rate for each
succeeding Interest Period and if not paid on the Quarterly
Distribution Date at the end of each such succeeding Interest Period,
will itself bear interest in accordance with this clause.
5.5 INTEREST ON OVERDUE SUMS
If the Trustee fails to pay any amount due and payable by it under or
in respect of this Agreement at the time and in the manner required
under this Agreement and the Series Supplement, other than as described
in clause 5.4, that amount will bear interest in accordance with this
clause. Such interest is payable on demand and will accrue on such
amount from day to day at the Specified Rate for that day from the date
such amount is due for payment up to the date of actual payment, before
and (as a separate and independent obligation) after judgment and if
not paid at the end of a 30 day period will itself bear interest in
accordance with this clause.
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6. REPAYMENT OF STANDBY REDRAW FACILITY PRINCIPAL
6.1 REPAYMENT OF STANDBY REDRAW FACILITY PRINCIPAL DURING THE AVAILABILITY
PERIOD
The Trustee will on each Quarterly Distribution Date repay so much of
the Standby Redraw Facility Principal on the previous Determination
Date as is available for this purpose in accordance with the Series
Supplement.
6.2 RE-DRAWING
Amounts repaid pursuant to clause 6.1 may be redrawn by the Trustee in
accordance with the terms of this Agreement.
6.3 REPAYMENT ON TERMINATION
Notwithstanding clause 6.1, on the Quarterly Distribution Date
immediately following the Termination Date, the Trustee will pay or
repay so much of the aggregate of all Standby Redraw Facility Principal
together with interest accrued thereon and all other money, the payment
or repayment of which forms part of the Obligations, as is available
for this purpose in accordance with the Series Supplement. If all
amounts due in accordance with this clause 6.3 are not paid or repaid
in full on the Quarterly Distribution Date immediately following the
Termination Date, on each succeeding Quarterly Distribution Date the
Trustee will pay or repay so much of such amounts as is available for
this purpose in accordance with the Series Supplement until such
amounts are paid or repaid in full.
6.4 PAYMENTS UNDER SECURITY TRUST DEED
Without prejudice to clause 13, the limitation of the Trustee's
liability to make payments under this Agreement will not apply for the
purposes of calculating any amounts payable out of the
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Assets of the Series Trust to the Standby Redraw Facility Provider
pursuant to the Security Trust Deed.
6.5 PRINCIPAL CHARGEOFFS
A Principal Xxxxxxxxx in relation to the Standby Redraw Facility
Principal pursuant to clause 9.1 of the Series Supplement reduces the
amount of the Standby Redraw Facility Principal immediately prior to
such Principal Chargeoff by the amount of the Principal Chargeoff with
effect from the Quarterly Distribution Date following the Determination
Date upon which the Principal Xxxxxxxxx was determined.
6.6 PRINCIPAL CHARGEOFF REIMBURSEMENT
A Principal Chargeoff Reimbursement in relation to the Standby Redraw
Facility Principal pursuant to clause 9.2 of the Series Supplement
increases the amount of the Standby Redraw Facility Principal
immediately prior to such Principal Chargeoff Reimbursement with effect
from the Quarterly Distribution Date following the Determination Date
upon which the Principal Chargeoff Reimbursement was determined.
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7. PAYMENTS
7.1 TIME ON DUE DATE AND FREE OF SET-OFF & TAXES
All payments to be made by the Trustee under this Agreement will:
(a) (DUE DATE): be made not later than close of business on the
due date for payment and all such payments will be made in the
manner and to such account as the Standby Redraw Facility
Provider directs in writing; and
(b) (SET-OFF): subject to clause 4.6, be made without set-off or
counterclaim and free and clear of and without deduction for
or on account of present or future Taxes, levies, imposts,
duties, charges, fees, deductions, withholdings, restrictions
or conditions of any nature.
7.2 CERTIFICATE
A certificate signed by an Authorised Officer of the Standby Redraw
Facility Provider stating any amount or rate for the purposes of this
Agreement will, in the absence of manifest error on its face,
constitute prima facie evidence of the amount or rate stated therein.
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8. ILLEGALITY AND INCREASED COST
8.1 ILLEGALITY
If any change in applicable law, regulation, treaty or official
directive or in the interpretation or administration thereof by any
Governmental Agency charged with the administration thereof makes it,
in the reasonable opinion of counsel to the Standby Redraw Facility
Provider evidenced in writing and addressed to the Trustee, unlawful or
impossible for the Standby Redraw Facility Provider to maintain or give
effect to its obligations under this Agreement, the Standby Redraw
Facility Provider may by written notice to the Trustee (with a copy to
the Manager) appoint a date as the Termination Date which date must not
be prior to 30 days (or such shorter period required by law) after the
date of receipt by the Trustee of written notice from the Standby
Redraw Facility Provider appointing the Termination Date.
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8.2 INCREASED COST
(a) (CHANGE IN LAW): If by reason of any change in law or in its
interpretation or administration or because of compliance with
any request from or requirement of any fiscal, monetary or
other Governmental Agency:
(i) the Standby Redraw Facility Provider incurs a cost as
a result of its having entered into or performing its
obligations under this Agreement or as a result of
any Advance being outstanding hereunder;
(ii) there is any increase in the cost to the Standby
Redraw Facility Provider of funding or maintaining
any Advance;
(iii) the amount of principal, interest or other amount
payable to the Standby Redraw Facility Provider or
the effective return to the Standby Redraw Facility
Provider under this Agreement is reduced; or
(iv) the Standby Redraw Facility Provider becomes liable
to make any payment (not being a payment of Tax on
its overall net income) on or calculated by reference
to the amount of Advances made under this Agreement,
then from time to time on notification by the Standby Redraw
Facility Provider (copied to the Manager) the Trustee will on
the Quarterly Distribution Date following such notification
and on each succeeding Quarterly Distribution Date until the
Standby Redraw Facility Provider is paid in full pay to the
Standby Redraw Facility Provider so much of the amounts
sufficient to indemnify the Standby Redraw Facility Provider
against such cost, increased cost, reduction or liability that
is available for this purpose in accordance with the Series
Supplement.
(b) (NO DEFENCE): If the Standby Redraw Facility Provider has
acted in good faith it will not be a defence to the Trustee,
in the event of any failure by the Trustee to comply with its
payment obligations under clause 8.2(a), that any such cost,
increased cost, reduction or liability could have been
avoided. However, the Standby Redraw Facility Provider will
negotiate in good faith with the Trustee and the Manager with
a view to finding a means by which such cost, increased cost,
reduction or liability may be minimised.
(c) (CERTIFICATE CONCLUSIVE): The Standby Redraw Facility
Provider's certificate as to the amount of, and basis for
arriving at, any such cost, increased cost, reduction or
liability is conclusive and binding on the Trustee in the
absence of manifest error on the face of the certificate.
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9. FEES
The Trustee will pay to the Standby Redraw Facility Provider a
commitment fee of 0.075% per annum of the then un-utilised portion of
the Facility Limit. The commitment fee will be calculated daily from
the date the Facility becomes available on the basis of a 365 day year
and will be paid quarterly in arrears on each Quarterly Distribution
Date in accordance with the Series Supplement. The amount of the
commitment fee may be varied by agreement between the Trustee, the
Manager and the Standby Redraw Facility Provider provided that each
Rating Agency is given not less than 3 Business Days prior notice by
the Manager of any variation to the amount of the commitment fee and
the amount of the commitment fee will not be varied if such variation
would result in a reduction, qualification or withdrawal in any then
current credit rating of a Security.
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10. REPRESENTATIONS AND WARRANTIES
10.1 GENERAL REPRESENTATIONS AND WARRANTIES
The Trustee in its capacity as trustee of the Series Trust represents
and warrants to the Standby Redraw Facility Provider that:
(a) (EXECUTION, DELIVERY AND PERFORMANCE): the execution, delivery
and performance of this Agreement and each other Transaction
Document in relation to the Series Trust to which it is a
party does not violate any existing law or regulation or any
document or agreement to which it is a party or which is
binding upon it or any of its assets;
(b) (CORPORATE POWER AND AUTHORISATION): the Trustee has the power
to enter into, and to perform its obligations, and has taken
all corporate and other action necessary to authorise the
entry into of, and performance of its obligations under, this
Agreement and each other Transaction Document in relation to
the Series Trust and to which it is a party;
(c) (LEGALLY BINDING OBLIGATION): this Agreement and each of the
other Transaction Documents to which it is a party constitute
its valid and legally binding obligations subject to stamping
and any necessary registration except as such enforceability
may be limited by any applicable bankruptcy, insolvency,
reorganisation, moratorium or trust or other similar laws
affecting creditors' rights generally; and
(d) (NO EVENT OF DEFAULT): to the best of the Trustee's knowledge
no Event of Default or event which with the giving of notice,
lapse of time or other applicable condition would become an
Event of Default has occurred which has not been waived or
remedied in accordance with this Agreement.
10.2 CORPORATE REPRESENTATIONS AND WARRANTIES
The Trustee in its capacity as trustee of the Series Trust represents
and warrants in respect of itself to the Standby Redraw Facility
Provider that:
(a) (DUE INCORPORATION): it is duly incorporated and has the
corporate power to own its own property and to carry on its
business as is now being conducted; and
(b) (EXECUTION, DELIVERY AND PERFORMANCE): the execution, delivery
and performance of this Agreement and each other Transaction
Document in relation to the Series Trust to which it is a
party does not violate its constitution.
10.3 SERIES TRUST REPRESENTATIONS AND WARRANTIES
The Trustee in its capacity as trustee of the Series Trust represents
and warrants to the Standby Redraw Facility Provider in relation to the
Series Trust as follows:
(a) (SERIES TRUST VALIDLY CREATED): the Series Trust has been
validly created and is in existence at the date of this
Agreement;
(b) (SOLE TRUSTEE): the Trustee has been validly appointed as
trustee of the Series Trust and is presently the sole trustee
of the Series Trust;
(c) (NO PROCEEDINGS TO REMOVE): no notice has been given to the
Trustee and to the Trustee's knowledge no resolution has been
passed or direction or notice has been given, removing the
Trustee as trustee of the Series Trust;
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(d) (TRUSTEE'S POWER): the Trustee has power under the Master
Trust Deed to enter into the Transaction Documents to which it
is a party in its capacity as trustee of the Series Trust; and
(e) (GOOD TITLE): to the best of its knowledge without due
enquiry, the Trustee is the lawful owner of the Assets of the
Series Trust and has power under the Master Trust Deed to
mortgage or charge them in the manner provided in the Security
Trust Deed.
10.4 REPRESENTATIONS AND WARRANTIES REPEATED
Each representation and warranty contained in clauses 10.1, 10.2 and
10.3 will be deemed to be repeated on each Drawdown Date with reference
to the facts and circumstances then subsisting, as if made on each such
day.
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11. UNDERTAKINGS
11.1 GENERAL
The Trustee undertakes to the Standby Redraw Facility Provider that it
will:
(a) (ACT CONTINUOUSLY): act continuously as trustee of the Series
Trust in accordance with the Master Trust Deed and the Series
Supplement until the Series Trust is terminated or until it
has retired or been removed in accordance with the Master
Trust Deed;
(b) (DO ALL THINGS NECESSARY): do everything and take all such
actions which are necessary (including, without limitation,
obtaining all such authorisations and approvals as are
appropriate) to ensure that it is able to exercise all its
powers and remedies and perform all its obligations under this
Agreement, other arrangements entered into by the Trustee
pursuant to this Agreement and each Transaction Document to
which it is a party;
(c) (MAINTAIN AUTHORISATIONS): ensure that each authorisation
required for it to maintain its status as trustee of the
Series Trust is obtained and promptly renewed and maintained
in full force and effect; and
(d) (NOT AMEND OR REVOKE): not consent to amend or revoke
provisions of the Master Trust Deed, the Series Supplement or
the Security Trust Deed in respect of payments or the order of
priorities of payments to be made thereunder without the prior
written consent of the Standby Redraw Facility Provider.
11.2 MANAGER'S UNDERTAKINGS AFTER MANAGER EVENT
At any time after a Manager Event occurs the Manager will:
(a) (NOTIFY STANDBY REDRAW FACILITY PROVIDER): immediately notify
the Standby Redraw Facility Provider as soon as it becomes
actually aware of the occurrence of:
(i) any Event of Default, Servicer Default, Trustee
Default, Potential Termination Event, Perfection of
Title Event or Manager Default; or
(ii) any litigation, arbitration, criminal or
administrative proceedings relating to any of the
Trustee's property, assets or revenues that involves
a claim against it in excess of A$1 million or that,
if decided adversely to it, could have a material
adverse effect on its ability to perform the
Obligations,
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and in each case advise the Standby Redraw Facility Provider
of what steps it has taken and what steps it proposes to take
in relation to such occurrences; and
(b) (DELIVER MATERIALS): deliver to the Standby Redraw Facility
Provider:
(i) as soon as practicable and in any event not later
than 120 days after the close of each of the Series
Trust's financial years, a copy of the audited
Accounts of the Series Trust;
(ii) as soon as practicable and in any event not later
than 90 days after the first half of each of the
Series Trust's financial years, a copy of a statement
setting out the Assets and Liabilities of the Series
Trust for that half-year;
(iii) as soon as practical and in any event not later than
90 days after each half of each financial year of the
Series Trust, a copy of the written report prepared
by the Auditor in accordance with clause 21.9 of the
Master Trust Deed;
(iv) as and when required by the Standby Redraw Facility
Provider, a certificate executed by two Authorised
Officers on behalf of the Manager stating to the best
of the knowledge of the Manager whether or not an
Event of Default, Servicer Default, Trustee Default,
Potential Termination Event, Perfection of Title
Event or Manager Default has occurred and if the same
has occurred, setting out the details of such event
and the steps (if any) taken by the Manager to remedy
or cure the same; and
(v) promptly, such further information regarding the
Series Trust's financial condition and business
operations within the knowledge of the Manager as the
Standby Redraw Facility Provider from time to time
reasonably requires.
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12. EVENTS OF DEFAULT
12.1 EVENTS OF DEFAULT
Each of the following events is an Event of Default whether or not
caused by any reason whatsoever outside the control of the Trustee or
any other person:
(a) (FAILURE TO REPAY OR PAY): the Trustee fails to pay any amount
in accordance with this Agreement within 10 Business Days of
the due date for payment of such amount;
(b) (OTHER BREACH): the Trustee breaches its undertaking in clause
11.1(d); and
(c) (EVENT OF DEFAULT UNDER SECURITY TRUST DEED): an Event of
Default (as defined in the Security Trust Deed in relation to
the Series Trust) occurs and any action is taken by the
Security Trustee, pursuant to clause 10 of the Security Trust
Deed, to appoint a Receiver in respect of the Assets of the
Series Trust or to sell and realise the Assets of the Series
Trust or the Security Trustee takes any action pursuant to
clause 11 of the Security Trust Deed.
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12.2 CONSEQUENCES OF EVENT OF DEFAULT
At any time after the occurrence of an Event of Default the Standby
Redraw Facility Provider may, without being obliged to do so and
notwithstanding any waiver of any previous default, by written notice
to the Trustee:
(a) (DECLARE ADVANCES DUE): declare the Advances, accrued interest
and all other sums which have accrued due under this Agreement
(whether or not presently payable) to be due, whereupon they
will become immediately due and payable; and/or
(b) (DECLARE FACILITY TERMINATED): declare the Facility terminated
in which case the obligations of the Standby Redraw Facility
Provider under this Agreement will immediately terminate from
the date of receipt by the Trustee of such written notice.
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13. TRUSTEE PROVISIONS
13.1 LIMITATION ON TRUSTEE'S LIABILITY
The Trustee enters into this Agreement only in its capacity as trustee
of the Series Trust and in no other capacity. A liability incurred by
the Trustee acting in its capacity as trustee of the Series Trust
arising under or in connection with this Agreement is limited to and
can be enforced against the Trustee only to the extent to which it can
be satisfied out of the Assets of the Series Trust out of which the
Trustee is actually indemnified for the liability. This limitation of
the Trustee's liability applies despite any other provision of this
Agreement (other than clause 13.3) and extends to all liabilities and
obligations of the Trustee in any way connected with any
representation, warranty, conduct, omission, agreement or transaction
related to this Agreement.
13.2 CLAIMS AGAINST TRUSTEE
The parties other than the Trustee may not sue the Trustee in respect
of any liabilities incurred by the Trustee acting in its capacity as
trustee of the Series Trust in any capacity other than as trustee of
the Series Trust including seeking the appointment of a receiver
(except in relation to the Assets of the Series Trust) a liquidator, an
administrator or any similar person to the Trustee, or prove in any
liquidation, administration or similar arrangements of or affecting the
Trustee (except in relation to the Assets of the Series Trust).
13.3 BREACH OF TRUST
The provisions of this clause 13 will not apply to any obligation or
liability of the Trustee to the extent that it is not satisfied because
under the Master Trust Deed, the Series Supplement, any other
Transaction Document in relation to the Series Trust or by operation of
law there is a reduction in the extent of the Trustee's indemnification
out of the Assets of the Series Trust as a result of the Trustee's
fraud, negligence or wilful default.
13.4 ACTS OR OMISSIONS
It is acknowledged that the Relevant Parties are responsible under the
Transaction Documents for performing a variety of obligations relating
to the Series Trust. No act or omission of the Trustee (including any
related failure to satisfy its obligations or any breach of
representations or warranties under this Agreement) will be considered
fraud, negligence or wilful default of the Trustee for the purpose of
clause 13.3 to the extent to which the act or omission was caused or
contributed to by any failure by any Relevant Party or any other person
appointed by the Trustee under any Transaction Document (other than a
person whose acts or omissions the
16
Trustee is liable for in accordance with any Transaction Document) to
fulfil its obligations in relation to the Series Trust or by any other
act or omission of a Relevant Party or any other such person.
13.5 NO AUTHORITY
No attorney or agent appointed in accordance with this Agreement has
authority to act on behalf of the Trustee in a way which exposes the
Trustee to any personal liability and no act or omission of any such
person will be considered fraudulent, negligent or a wilful default of
the Trustee for the purposes of clause 13.3.
13.6 NO OBLIGATION
The Trustee is not obliged to enter into any commitment or obligation
under this Agreement or any Transaction Document (including incur any
further liability) unless the Trustee's liability is limited in a
manner which is consistent with this clause 13 or otherwise in a manner
satisfactory to the Trustee in its absolute discretion.
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14. ASSIGNMENT
14.1 ASSIGNMENT BY TRUSTEE
The Trustee will not assign or otherwise transfer the benefit of this
Agreement or any of its rights, duties or obligations under this
Agreement except to a Substitute Trustee acceptable to the Standby
Redraw Facility Provider (whose consent is not to be unreasonably
withheld).
14.2 ASSIGNMENT BY XXXXXXX XXXXXX FACILITY PROVIDER
The Standby Redraw Facility Provider may at any time assign or
otherwise transfer all or any part of the benefit of this Agreement or
any of its rights, duties and obligations under this Agreement to
another Bank or financial institution. The Standby Redraw Facility
Provider may disclose to a proposed assignee or transferee information
in the possession of the Standby Redraw Facility Provider relating to
the Trustee and the Manager. An assignment or transfer by the Standby
Redraw Facility Provider pursuant to this clause 14.2 shall not be of
any effect until the Standby Redraw Facility Provider has notified the
Trustee in writing of the assignment or transfer, as the case may be.
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15. NOTICES
15.1 METHOD OF DELIVERY
Subject to this clause, any notice, request, certificate, approval,
demand, consent or other communication to be given under this Agreement
must:
(a) (IN WRITING AND SIGNED BY AN AUTHORISED OFFICER): except in
the case of communication by email, be in writing and signed
by 2 Authorised Officers of the party giving the same; and
(b) (DELIVERY): be:
(i) left at the address of the addressee;
(ii) sent by prepaid ordinary post to the address of the
addressee;
(iii) sent by facsimile to the facsimile number of the
addressee; or
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(iv) sent by email by an Authorised Officer of the party
giving the same in accordance with the addressee's
email address,
notified by that addressee from time to time to the other
parties to this Agreement as its address for service pursuant
to this Agreement.
15.2 DEEMED RECEIPT
A notice, request, certificate, demand, consent or other communication
under this Agreement is deemed to have been received:
(a) (DELIVERY): where delivered in person, upon receipt;
(b) (POST): where sent by post within Australia, on the 3rd day
after posting, and where sent by post to, from or outside
Australia, on the 7th day after posting; and
(c) (FAX): where sent by facsimile, on production by the
dispatching facsimile machine of a transmission report which
indicates that the facsimile was sent in its entirety to the
facsimile number of the recipient; and
(d) (EMAIL): where sent by email, on the date the email is
received.
However, if the time of deemed receipt of any notice is not before 5.30
pm on a Business Day at the address of the recipient it is deemed to
have been received at the commencement of business on the next Business
Day.
15.3 EMAIL
A notice, request, certificate, approval, demand, consent or other
communication to be given under this Agreement may only be given by
email where the recipient has separately agreed that that communication
or communications of that type, may be given by email.
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16. INDEMNITY
16.1 INDEMNITY ON DEMAND
Subject to clause 13, the Trustee will on demand indemnify the Standby
Redraw Facility Provider against any loss, cost or expenses which the
Standby Redraw Facility Provider may sustain or incur as a consequence
of:
(a) (OVERDUE SUMS): any sum payable by the Trustee under this
Agreement not being paid when due;
(b) (EVENT OF DEFAULT): the occurrence of any Event of Default;
(c) (FAILURE TO PROVIDE ADVANCE): an Advance requested in a
Drawdown Notice not being provided for any reason including
failure to fulfil any condition precedent but excluding any
matter within the control of the Standby Redraw Facility
Provider; or
(d) (PAYMENT OF PRINCIPAL): the Standby Redraw Facility Provider
receiving payments of principal other than on the Quarterly
Distribution Date immediately following the last day of the
relevant Interest Period for any reason.
16.2 LOSSES ON LIQUIDATION OR RE-EMPLOYMENT OF DEPOSITS
The losses, costs or expenses referred to in clause 16.1 will include
the amount determined in good faith by the Standby Redraw Facility
Provider as being any loss (other than an amount
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for loss of profit other than loss of margin) including:
(a) (LIQUIDATION AND RE-EMPLOYMENT): loss of margin, cost or
expense incurred by reason of the liquidation or re-employment
of deposits or other funds acquired or contracted for by the
Standby Redraw Facility Provider to fund or maintain any such
Advance or amount; and
(b) (OTHER ARRANGEMENTS): losses, costs, damages, charges or
expenses incurred by the Standby Redraw Facility Provider in
relation to the variation, termination or making of any other
arrangements in relation to any arrangement ancillary or
related to this Agreement including, without limitation, any
swap or derivative agreement entered into by the Standby
Redraw Facility Provider in connection with or in order to
fund any Advances.
16.3 PAYMENT ON QUARTERLY DISTRIBUTION DATE
Any payments to be made by the Trustee pursuant to this clause 16 will
only be made on the Quarterly Distribution Date following demand by the
Standby Redraw Facility Provider and on each succeeding Quarterly
Distribution Date until the Standby Redraw Facility Provider is paid in
full by payment of so much of the amount sufficient to indemnify the
Standby Redraw Facility Provider as is available for this purpose in
accordance with the Series Supplement.
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17. MISCELLANEOUS
17.1 STAMP DUTIES
(a) (TRUSTEE MUST PAY): The Trustee will pay all stamp, loan
transaction, registration and similar Taxes including fines
and penalties (except such fines and penalties incurred
through the act, neglect or omission of the Standby Redraw
Facility Provider after the Standby Redraw Facility Provider
has requested and been put in funds to pay such Taxes),
financial institutions duty and debits tax which may be
payable or required to be paid by any appropriate authority or
determined to be payable in connection with the execution,
delivery, performance or enforcement of this Agreement.
(b) (TRUSTEE MUST INDEMNIFY): Subject to clause 13, the Trustee
will indemnify and keep indemnified the Standby Redraw
Facility Provider against any loss or liability incurred or
suffered by it as a result of the delay or failure by the
Trustee to pay such Taxes.
17.2 WAIVER
A failure to exercise or enforce or a delay in exercising or enforcing
or the partial exercise or enforcement of any right, remedy, power or
privilege under this Agreement by the Standby Redraw Facility Provider
will not in any way preclude or operate as a waiver of any further
exercise or enforcement of such right, remedy, power or privilege or
the exercise or enforcement of any other right, remedy, power or
privilege under this Agreement or provided by law.
17.3 WRITTEN WAIVER, CONSENT AND APPROVAL
Any waiver, consent or approval given by the Standby Redraw Facility
Provider under this Agreement will only be effective and will only bind
the Standby Redraw Facility Provider if it is given in writing, or
given verbally and subsequently confirmed in writing, and executed by
the Standby Redraw Facility Provider or on its behalf by two Authorised
Officers of the Standby Redraw Facility Provider.
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17.4 SEVERABILITY
Any provision of this Agreement which is illegal, void or unenforceable
in any jurisdiction is ineffective in such jurisdiction to the extent
only of such illegality, voidness or unenforceability without
invalidating the remaining provisions of this Agreement or affecting
the validity or enforceability of the provisions in any other
jurisdiction.
17.5 SURVIVAL OF INDEMNITIES
The indemnities contained in this Agreement are continuing obligations
of the Trustee, separate and independent from the other obligations of
the Trustee and will survive the termination of this Agreement.
17.6 SUCCESSORS AND ASSIGNS
This Agreement is binding upon and enures to the benefit of the parties
to this Agreement and their respective successors and permitted
assigns.
17.7 MORATORIUM LEGISLATION
To the fullest extent permitted by law, the provisions of all statutes
whether existing now or in the future operating directly or indirectly:
(a) (TO AFFECT OBLIGATIONS): to lessen or otherwise to vary or
affect in favour of the Trustee any obligation under this
Agreement; or
(b) (TO AFFECT RIGHTS): to delay or otherwise prevent or
prejudicially affect the exercise of any rights or remedies
conferred on the Standby Redraw Facility Provider under this
Agreement,
are hereby expressly waived, negatived and excluded.
17.8 AMENDMENTS
The parties to this Agreement may only amend this Agreement in
accordance with clause 33.1(b) of the Series Supplement.
17.9 GOVERNING LAW
This Agreement is governed by and construed in accordance with the laws
of the Australian Capital Territory.
17.10 JURISDICTION
Each of the parties irrevocably and unconditionally:
(a) (SUBMISSION TO JURISDICTION): submits to the non-exclusive
jurisdiction of the courts of the Australian Capital
Territory;
(b) (WAIVER OF INCONVENIENT FORUM): waives any objection it may
now or in the future have to the bringing of proceedings in
those courts and any claim that any proceedings have been
brought in an inconvenient forum; and
(c) (SERVICE OF NOTICE): agrees, without preventing any other mode
of service permitted by law, that any document required to be
served in any proceedings may be served in the manner in which
notices and other written communications may be given under
clause 15.
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17.11 COUNTERPARTS
This Agreement may be executed in a number of counterparts and all such
counterparts taken together will constitute one and the same
instrument.
17.12 CONTRA PROFERENTEM
Each provision of this Agreement will be interpreted without
disadvantage to the party who (or whose representative) drafted that
provision.
17.13 KNOW YOUR CUSTOMER
Subject to any confidentiality, privacy or general trust law
obligations owed by Perpetual Trustee Company Limited to Noteholders
and any applicable confidentiality or privacy laws, each party
("INFORMATION PROVIDER") agrees to provide any information and
documents reasonably required by another party for that other party 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. Any party
may decline to perform any obligation under the Transaction Documents
to the extent that it forms the view, in its reasonable opinion, that
notwithstanding that it has taken all reasonable steps to comply with
such anti-money laundering or counter-terrorism financing laws, it is
required to decline to perform those obligations under any such laws.
17.14 COMPLIANCE WITH REGULATION AB
The Standby Redraw Facility Provider acknowledges and agrees that to
the extent it agrees with the Manager that the Standby Redraw Facility
Provider is "participating in the servicing function" in relation to
the Series Trust within the meaning of Item 1122 of Regulation AB,
clauses 16.31(b) and (d) of the Series Supplement will apply to this
Agreement as if references to "the Servicer" in those clauses were
references to the Standby Redraw Facility Provider and the definition
of "Subcontractor" in clause 1.1 of the Series Supplement will be
construed accordingly.
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SCHEDULE
DRAWDOWN NOTICE
To: Commonwealth Bank of Australia ABN 48 123 123 124
[Address]
Attention: Head of Securitisation
From: Perpetual Trustee Company Limited ABN 42 000 001 007
[Date]
In our capacity as trustee of the Series Trust, we hereby irrevocably request
you to make us an Advance on the Drawdown Date specified below for an amount
equal to the Redraw Amount specified below in accordance with clause 4 of the
Standby Redraw Facility Agreement dated [ ] between ourselves,
Commonwealth Bank of Australia and Securitisation Advisory Services Pty. Limited
ABN 88 064 133 946, as amended, novated or supplemented from time to time (the
"STANDBY REDRAW FACILITY AGREEMENT"):
(a) Drawdown Date [ ]
(b) Redraw Amount A$[ ]
(c) Details of the calculation of the Redraw Amount [ ]
Words used and not otherwise defined herein have the same meaning as in the
Standby Redraw Facility Agreement.
SIGNED for and on behalf of |
PERPETUAL TRUSTEE COMPANY LIMITED |
ABN 42 000 001 007, as trustee of |
the Medallion Trust Series 2006-1G |
by: |
|
|
|
__________________________________
(Authorised Officer)
__________________________________
(Name)
__________________________________
(Title)
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EXECUTED as an agreement.
SIGNED for and on behalf of |
COMMONWEALTH BANK OF AUSTRALIA ABN |
48 123 123 124 |
by | __________________________________
its Attorney under a Power of |
Attorney dated and who declares | Signature of Attorney
that he or she has not received |
any notice of the revocation of |
such Power of Attorney, in the |
presence of: |
|
|
__________________________________ __________________________________
Signature of Witness Name of Attorney in full
__________________________________
Name of Witness in full
SIGNED for and on behalf of |
PERPETUAL TRUSTEE COMPANY LIMITED |
ABN 42 000 001 007 |
by | __________________________________
its Attorney under a Power of |
Attorney dated and who declares | Signature of Attorney
that he or she has not received |
any notice of the revocation of |
such Power of Attorney, in the |
presence of: |
|
|
|
__________________________________ __________________________________
Signature of Witness Name of Attorney in full
__________________________________
Name of Witness in full
23
SIGNED SEALED AND DELIVERED for |
and on behalf of SECURITISATION |
ADVISORY SERVICES PTY LIMITED ABN |
88 064 133 946 | __________________________________
by |
its Attorney under a Power of | Signature of Attorney
Attorney dated and who declares |
that he or she has not received |
any notice of the revocation of |
such Power of Attorney, in the |
presence of: |
|
|
__________________________________ __________________________________
Signature of Witness Name of Attorney in full
__________________________________
Name of Witness in full
24