Exhibit 10.4
WESTPAC SECURITIES ADMINISTRATION LIMITED
(Trustee)
WESTPAC BANKING CORPORATION
(Redraw Facility Provider)
and
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED
(Trust Manager)
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SERIES ▇▇▇▇-▇▇ ▇▇▇ ▇▇▇▇▇
REDRAW FACILITY AGREEMENT
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(C) ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Ref: AEJ [*]
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T A B L E O F C O N T E N T S
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1. DEFINITIONS AND INTERPRETATION .................... 1
1.1 Definitions ....................................... 1
1.2 Master Trust Deed definitions ..................... 3
1.3 Interpretation .................................... 3
1.4 Determination, statement and certificate sufficient
evidence .......................................... 3
1.5 Transaction Document .............................. 3
1.6 Limited to Trust .................................. 3
2. PURPOSE ........................................... 4
3. DRAWINGS .......................................... 4
3.1 Redraw Advance .................................... 4
3.2 Making of Redraw Advances ......................... 4
4. FEES .............................................. 4
4.1 Availability fee .................................. 4
4.2 Draw Fee .......................................... 5
4.3 Capitalisation .................................... 5
5. CANCELLATION OF REDRAW LIMIT ...................... 5
5.1 During Term ....................................... 5
5.2 At end of Term .................................... 6
5.3 Cancellation by Redraw Facility Provider .......... 6
6. REPAYMENT ......................................... 6
6.1 Repayment of Redraw Advances ...................... 6
6.2 Final repayment ................................... 6
7. PREPAYMENTS ....................................... 6
7.1 Voluntary prepayments ............................ 6
7.2 Draw Fee ......................................... 6
7.3 Limitation on prepayments ........................ 7
8. PAYMENTS ......................................... 7
8.1 Manner ........................................... 7
8.2 Payment to be made on Business Day ............... 7
8.3 Appropriation where insufficient moneys available. 7
9. CHANGES IN LAW ................................... 7
9.1 Additional payments .............................. 7
9.2 Minimisation ..................................... 8
9.3 Survival ......................................... 8
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10. CONDITIONS PRECEDENT ............................. 8
10.1 Conditions precedent to initial Drawdown Notice .. 8
10.2 Conditions precedent to each Redraw Advance ...... 9
11. REPRESENTATIONS AND WARRANTIES ................... 9
11.1 Representations and warranties ................... 9
11.2 Reliance on representations and warranties ....... 11
12. UNDERTAKINGS ..................................... 11
12.1 General undertakings ............................. 11
12.2 Undertakings relating to Trust ................... 12
12.3 Term of undertakings ............................. 12
13. EVENTS OF DEFAULT ................................ 12
13.1 Events of Default ................................ 12
13.2 Consequences ..................................... 13
14. CONTROL ACCOUNTS ................................. 13
15. WAIVERS, REMEDIES CUMULATIVE ..................... 13
16. SEVERABILITY OF PROVISIONS ....................... 13
17. SURVIVAL OF REPRESENTATIONS ...................... 13
18. INDEMNITY AND REIMBURSEMENT OBLIGATION ........... 14
19. MORATORIUM LEGISLATION ........................... 14
20. CONSENTS AND OPINIONS ............................ 14
21. ASSIGNMENTS ...................................... 14
22. NOTICES .......................................... 14
23. AUTHORISED SIGNATORIES ........................... 15
24. GOVERNING LAW AND JURISDICTION ................... 15
25. COUNTERPARTS ..................................... 15
26. ACKNOWLEDGEMENT BY TRUSTEE ....................... 15
27. LIMITED RECOURSE ................................. 15
27.1 General ................................. 15
27.2 Liability of Trustee limited to its right
to indemnity ............................ 15
27.3 Unrestricted remedies .................. 16
27.4 Restricted remedies .................... 16
28. REDRAW FACILITY PROVIDER'S OBLIGATIONS ........... 17
29. SUCCESSOR TRUSTEE ................................ 17
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REDRAW FACILITY AGREEMENT
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AGREEMENT dated 1998 between:
1. WESTPAC SECURITIES ADMINISTRATION LIMITED (ACN 000 049 472)
incorporated in New South Wales of ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ as Trustee of the Series ▇▇▇▇-▇▇ ▇▇▇ ▇▇▇▇▇ (the
Trustee);
2. WESTPAC BANKING CORPORATION (ARBN 007 457 141) incorporated in New
South Wales of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ (the Redraw
Facility Provider); and
3. WESTPAC SECURITISATION MANAGEMENT PTY LIMITED (ACN ▇▇▇ ▇▇▇ ▇▇▇)
incorporated in the Australian Capital Territory, of ▇▇▇▇▇ ▇, ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ (the Trust Manager).
RECITAL
The Trustee has requested the Redraw Facility Provider to provide the Trustee
with a redraw facility under which loans of up to an aggregate amount of $[*]
may be made available to the Trustee.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this agreement the following definitions apply unless the context
requires otherwise, or unless otherwise defined.
Available Redraw Amount means at any time the greater of:
(a) the Redraw Limit at the time less:
(i) the Principal Outstanding at that time;
(ii) the Carryover Redraw Charge Offs at that time; and
(b) zero.
Bank ▇▇▇▇ Rate has the meaning given in the Series Notice, but on the
first Reset Date of any Redraw Advance the Bank ▇▇▇▇ Rate shall be an
interpolated rate calculated with reference to the tenor of the period
from that Reset Date to (but not including) the next Reset Date.
Drawdown Date means, in relation to a Redraw Advance, the Payment Date
on which the Redraw Advance is or is to be made under this agreement.
Drawdown Notice means a notice under clause 3.1.
Event of Default means any of the events specified in clause 13.
Final Repayment Date means the date on which the Term ends.
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Master Trust Deed means the deed entitled "Master Trust Deed" between
the Trustee and the Trust Manager dated 14 February 1997.
Principal Outstanding means, at any time, the total principal amount of
all outstanding Redraw Advances at that time less the Carryover Redraw
Charge Offs at that time.
Redraw Advance means any advance made or to be made under this
agreement.
Redraw Limit means $[*], or any other amount as agreed in writing
between the Redraw Facility Provider, the Trustee and the Trust
Manager, as reduced or cancelled under this agreement, provided that
the Redraw Limit may not be increased unless the Designated Rating
Agency for each Class of Notes has confirmed in writing that the
increase would not result in a downgrading of the rating given to any
Note of the relevant Class or the withdrawal of the rating of any Note
of the relevant Class.
Reset Date means in relation to a Redraw Advance:
(a) the Drawdown Date for that Redraw Advance; and
(b) each Payment Date while that Redraw Advance is outstanding.
Series Notice means the Series Notice issued by the Trust Manager on or
about the date of this agreement under the Master Trust Deed.
Term means the period commencing on the date of this agreement and
expiring on the earliest of:
(a) the date which is one month after the Notes have been redeemed
in full in accordance with the Master Trust Deed and the
Series Notice;
(b) the date declared by the Redraw Facility Provider under clause
13.2(b);
(c) the date on which the Trustee enters into a redraw facility to
replace this agreement with any other person to enable it to
fund Redraw Shortfalls;
(d) the date on which Westpac Securitisation Management Pty
Limited retires or is removed as Trust Manager under the
Master Trust Deed;
(e) the date on which the Redraw Limit is cancelled in full by the
Trustee under clause 5.1;
(f) the date which is one year after the Maturity Date; and
(g) the date on which the Redraw Limit is cancelled in full by the
Redraw Facility Provider under clause 5.3.
Trust means the Series ▇▇▇▇-▇▇ ▇▇▇ ▇▇▇▇▇ constituted under the Master
Trust Deed on the terms of the Series Notice.
Trust Document means:
(a) this agreement;
(b) the Master Trust Deed;
(c) the Notice of Creation of Trust;
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(d) the Series Notice;
(e) the Bond Trust Deed;
(f) the Agency Agreement;
(g) the Security Trust Deed; and
(h) the Servicing Agreement.
Trustee means the trustee of the Trust at the date of this agreement or
any person which becomes a successor trustee under clause 24 of the
Master Trust Deed.
1.2 Master Trust Deed definitions
Words and expressions which are defined in the Master Trust Deed (as
amended by the Series Notice) and the Series Notice (including in each
case by reference to another agreement) have the same meanings when
used in this agreement, unless the context otherwise requires or unless
otherwise defined in this agreement.
1.3 Interpretation
Clause 1.2 of the Master Trust Deed applies to this agreement as if set
out in full, except that references to this deed are references to this
agreement and:
(a) a reference to an asset includes any real or personal, present
or future, tangible or intangible property or asset and any
right, interest, revenue or benefit in, under or derived from
the property or asset;
(b) an Event of Default subsists until it has been waived in
writing by the Redraw Facility Provider; and
(c) a reference to an amount for which a person is contingently
liable includes an amount which that person may become
actually or contingently liable to pay if a contingency
occurs, whether or not that liability will actually arise.
1.4 Determination, statement and certificate sufficient evidence
Except where otherwise provided in this agreement any determination,
statement or certificate by the Redraw Facility Provider or an
Authorised Signatory of the Redraw Facility Provider provided for in
this agreement is sufficient evidence unless proven wrong.
1.5 Transaction Document
This agreement is a Transaction Document for the purposes of the Master
Trust Deed.
1.6 Limited to Trust
The rights and obligations of the parties under this agreement relate
only to the Trust, and do not relate to any other Trust (as defined in
the Master Trust Deed). Without limitation, the Redraw Facility
Provider has no obligation under this agreement to provide financial
accommodation to the Trustee as trustee of any other such Trust.
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2. PURPOSE
The Trust Manager directs to the Trustee to, and the Trustee shall,
apply the proceeds of each Redraw Advance to fund Redraw Shortfalls in
relation to the Trust by paying it to Westpac in accordance with clause
6.3 of the Series Notice, and for no other purpose.
3. DRAWINGS
3.1 Redraw Advance
(a) Subject to this agreement, if on any Determination Date the
Trust Manager determines that there is a Redraw Shortfall in
relation to the Collection Period ending immediately prior to
that Determination Date the Trust Manager must, and the
Trustee shall (subject to this agreement and the Series
Notice), direct the Trustee to request a Redraw Advance by
giving to the Redraw Facility Provider a Drawdown Notice.
(b) A Drawdown Notice must be:
(i) in writing;
(ii) in or substantially in the form of Annexure A;
(iii) signed by the Trustee; and
(iv) given not later than 11.00 am (Sydney time) on the
Remittance Date following that Collection Period.
(c) The amount requested in a Drawdown Notice must be the lesser
of:
(i) the relevant Redraw Shortfall; and
(ii) the Available Redraw Amount at that time (but
assuming the repayment of all Redraw Advances due to
be repaid on or before the relevant Drawdown Date).
3.2 Making of Redraw Advances
(a) Subject to the terms of this agreement, a Redraw Advance
requested in a Drawdown Notice shall be made available by the
Redraw Facility Provider paying the proceeds of that Redraw
Advance to Westpac.
(b) The Redraw Facility Provider is not obliged to provide a
Redraw Advance if as a result the aggregate of Principal
Outstanding and the Carryover Redraw Charge Offs would exceed
the Redraw Limit.
4. FEES
4.1 Availability fee
(a) An availability fee accrues at [0.02%] per annum on the daily
amount of the Available Redraw Amount (if any) due from day to
day from the date of this agreement.
(b) The availability fee is calculated on the actual number of
days elapsed and a year of 365 days.
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(c) The Trust Manager directs the Trustee to, and the Trustee
shall, pay to the Redraw Facility Provider any accrued
availability fee in arrear on:
(i) each Payment Date; and
(ii) at the end of the Term.
4.2 Draw Fee
(a) A draw fee accrues due from day to day on the daily amount of
each Redraw Advance at the following rates:
(i) the sum of [0.12%] per annum and the Bank ▇▇▇▇ Rate
calculated as of that date (if that date is a Reset
Date) or (otherwise) the Reset Date immediately
before that date, if the Redraw Advance has been
outstanding for less than 12 months; and
(ii) the sum of [0.22%] per annum and the Bank ▇▇▇▇ Rate
calculated as of that date (if that date is a Reset
Date) or (otherwise) the Reset Date immediately
before that date, if the Redraw Advance has been
outstanding for 12 months or more.
(b) Each draw fee is calculated on the actual number of days
elapsed and a year of 365 days.
(c) The Trust Manager directs the Trustee to, and the Trustee
shall, pay to the Redraw Facility Provider any accrued draw
fee in arrear on:
(i) each Payment Date; and
(ii) at the end of the Term.
(d) The Bank ▇▇▇▇ Rate as at any date will be the Bank ▇▇▇▇ Rate
determined:
(i) if that date is a Payment Date, on that Payment Date;
and
(ii) on any other date, on the Payment Date immediately
preceding that date.
4.3 Capitalisation
Any draw fee payable under this clause 4 which is not paid when due
will immediately be capitalised. The draw fee is payable on any
capitalised amount at the rate and in the manner referred to in this
clause 4.
5. CANCELLATION OF REDRAW LIMIT
5.1 During Term
(a) On giving not less than 5 Business Days irrevocable notice to
the Redraw Facility Provider the Trustee may cancel all or
part of the Redraw Limit during the Term.
(b) A partial cancellation must be in a minimum of $100,000 and a
whole multiple of $10,000 unless the Redraw Facility Provider
agrees otherwise.
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5.2 At end of Term
At the close of business (Sydney time) on the last day of the Term the
Redraw Limit will be cancelled.
5.3 Cancellation by Redraw Facility Provider
(a) The Redraw Facility Provider may cancel all or part of the
Redraw Limit during the Term immediately on giving notice to
the Trustee and the Trust Manager. The Redraw Limit shall be
reduced by the amount of that cancellation on that notice.
(b) On each Payment Date following that cancellation, the Trustee
shall pay to the Redraw Facility Provider the lesser of:
(i) an amount equal to the Principal Outstanding at that
Payment Date less the Redraw Limit at that Payment
Date (if positive); and
(ii) any amount available for distribution to the Redraw
Facility Provider under clauses 6.10(a)(v) and
6.13(a)(ii) of the Series Notice.
(c) Repayments under paragraph (b) will be applied against Redraw
Advances in chronological order of their Drawdown Dates.
(d) This clause does not affect the Redraw Facility Provider's
rights under clause 13 of this agreement or under clause
6.11(a)(ii)(D) of the Series Notice.
6. REPAYMENT
6.1 Repayment of Redraw Advances
The Trustee shall repay the Principal Outstanding on each Payment Date
and at the end of the Term, to the extent that amounts are available
for that purpose under clause 6.13(a)(iii) of the Series Notice. Those
repayments will be applied against Redraw Advances in chronological
order of their Drawdown Dates.
6.2 Final repayment
If following the Final Repayment Date, any Principal Outstanding or
Carryover Redraw Charge Off has not been repaid after the distribution
of all Assets of the Trust in accordance with the Series Notice, that
Principal Outstanding or Carryover Redraw Charge Off will be cancelled
and the Trustee will have no further obligation to pay that amount
under this agreement.
7. PREPAYMENTS
7.1 Voluntary prepayments
The Trustee may prepay all or part of the Principal Outstanding with
the consent of the Redraw Facility Provider and on at least 5 Business
Days' notice. The Trustee shall prepay in accordance with that notice.
7.2 Draw Fee
When the Trustee prepays any amount of the Principal Outstanding, it
shall also pay any draw fee accrued on that amount.
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7.3 Limitation on prepayments
The Trustee may not prepay all or any part of the Principal Outstanding
except as set out in this agreement.
8. PAYMENTS
8.1 Manner
The Trustee shall make all payments under this agreement:
(a) by cheque, electronic funds transfer or other agreed method to
the Redraw Facility Provider at its address for service of
notices or by transfer of immediately available funds to the
account specified by the Redraw Facility Provider and, in
either case, by 4.00 pm (Sydney time) on the due date; and
(b) without set-off, counterclaim or other deduction, except any
compulsory deduction for Tax; and
(c) in accordance with the directions of the Trust Manager, Master
Trust Deed and the Series Notice.
8.2 Payment to be made on Business Day
If any payment is due on a day which is not a Business Day, the due
date will be the next Business Day.
8.3 Appropriation where insufficient moneys available
Subject to any express provision of this agreement, the Redraw Facility
Provider may appropriate amounts it receives as between principal, draw
fees, interest and other amounts then payable as it sees fit. This will
override any appropriation made by the Trustee.
9. CHANGES IN LAW
9.1 Additional payments
Whenever the Redraw Facility Provider determines that:
(a) the effective cost to the Redraw Facility Provider of making,
funding or maintaining any Redraw Advance or the Redraw Limit
is increased in any way;
(b) any amount paid or payable to the Redraw Facility Provider or
received or receivable by the Redraw Facility Provider, or the
effective return to the Redraw Facility Provider, under or in
respect of this agreement is reduced in any way;
(c) the return of the Redraw Facility Provider on the capital
which is or becomes directly or indirectly allocated by the
Redraw Facility Provider to any Redraw Advance or the Redraw
Limit is reduced in any way; or
(d) to the extent any relevant law, official directive or request
relates to or affects the Redraw Limit, any Redraw Advance or
this agreement, the overall return on capital of the Redraw
Facility Provider or any of its holding companies is reduced
in any way,
as a result of any change in, any making of or any change in the
interpretation or application by any Government Agency of, any law,
official directive or request, then:
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(e) (when it has calculated the effect of the above and the amount
to be charged to the Trustee under this clause) the Redraw
Facility Provider shall promptly notify the Trust Manager and
the Trustee; and
(f) on the following Payment Date from time to time the Trustee
shall, subject to clause 6 of the Series Notice, pay for the
account of the Redraw Facility Provider the amount certified
by an Authorised Signatory of the Redraw Facility Provider to
be necessary to compensate the Redraw Facility Provider for
the increased cost or the reduction (from the date of the
notice).
Without limiting the above in any way, this clause applies:
(g) to any law, official directive or request with respect to
Taxation (other than any Tax on the net income of any person)
or reserve, liquidity, capital adequacy, special deposit or
similar requirements;
(h) to official directives or requests which do not have the
force of law where it is the practice of responsible bankers
or financial institutions in the country concerned to comply
with them; and
(i) where the increased cost or the reduction arises because the
Redraw Facility Provider is restricted in its capacity to
enter other transactions, is required to make a payment, or
forgoes or earns reduced interest or other return on any
capital or on any sum calculated by reference in any way to
the amount of any Redraw Advance, the Redraw Limit or to any
other amount paid or payable or received or receivable under
this agreement or allocates capital to any such sum.
9.2 Minimisation
(a) (No defence) If the Redraw Facility Provider has acted in good
faith it will not be a defence that any cost, reduction or
payment referred to in this clause could have been avoided.
(b) (Minimisation) The Redraw Facility Provider shall use
reasonable endeavours to minimise any cost, reduction or
payment referred to in this clause.
9.3 Survival
This clause survives the repayment of any relevant Redraw Advance and
the termination of this agreement.
10. CONDITIONS PRECEDENT
10.1 Conditions precedent to initial Drawdown Notice
The right of the Trustee to give the initial Drawdown Notice and the
obligations of the Redraw Facility Provider under this agreement are
subject to the condition precedent that the Redraw Facility Provider
receives all of the following in form and substance satisfactory to the
Redraw Facility Provider:
(a) (verification certificate) a certificate in relation to the
Trustee given by a director of the Trustee substantially in
the form of annexure B with the attachments referred to and
dated not earlier than 14 days before the first Drawdown Date;
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(b) (Trust Documents) a certified copy of each duly executed and
(where relevant) stamped Trust Document;
(c) (Master Trust Deed conditions precedent) evidence that the
conditions precedent referred to in clause 13 of the Master
Trust Deed have been satisfied;
(d) (Security Trust Deed) evidence that the Security Trust Deed
has been or will be registered with each relevant Governmental
Agency free from all prior Security Interests and third party
rights and interests; and
(e) (Notes) evidence that the Notes have been issued.
10.2 Conditions precedent to each Redraw Advance
The obligations of the Redraw Facility Provider to make available each
Redraw Advance are subject to the further conditions precedent that:
(a) (no default) no Event of Default subsists at the date of the
relevant Drawdown Notice and the relevant Drawdown Date or
will result from the provision of the Redraw Advance; and
(b) (representations true) the representations and warranties by
the Trustee in this agreement are true as at the date of the
relevant Drawdown Notice and the relevant Drawdown Date as
though they had been made at that date in respect of the facts
and circumstances then subsisting.
11. REPRESENTATIONS AND WARRANTIES
11.1 Representations and warranties
The Trustee (in its capacity as trustee of the Trust) makes the
following representations and warranties (so far as they relate to the
Trust).
(a) (Status) It is a corporation validly existing under the laws
of the place of its incorporation specified in this agreement.
(b) (Power) It has the power to enter into and perform its
obligations under the Trust Documents to which it is expressed
to be a party, to carry out the transactions contemplated by
those documents and to carry on its business as now conducted
or contemplated.
(c) (Corporate authorisations) It has taken all necessary
corporate action to authorise the entry into and performance
of the Trust Documents to which it is expressed to be a party,
and to carry out the transactions contemplated by those
documents.
(d) (Documents binding) Each Trust Document to which it is
expressed to be a party is its valid and binding obligation
enforceable in accordance with its terms, subject to any
necessary stamping and registration and to laws, defences and
principles of equity generally affecting creditors' rights.
(e) (Transactions permitted) The execution and performance by it
of the Trust Documents to which it is expressed to be a party
and each transaction contemplated under those documents do not
violate in any respect a provision of:
(i) a law or treaty or a judgment, ruling, order or
decree of a Government Body binding on it;
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(ii) its memorandum or articles of association or other
constituent documents; or
(iii) any other document or agreement which is binding on
it or its assets,
and, except as provided by the Trust Documents, did not and
will not:
(iv) create or impose a Security Interest on any of its
assets; or
(v) allow a person to accelerate or cancel an obligation
with respect to any indebtedness in respect of
financial accommodation, or constitute an event of
default, cancellation event, prepayment event or
similar event (whatever called) under an agreement
relating to any such indebtedness, whether
immediately or after notice or lapse of time or both.
(f) (Authorisations) Each Authorisation which is required in
relation to:
(i) the execution, delivery and performance by it of the
Trust Documents to which it is expressed to be a
party and the transactions contemplated by those
documents;
(ii) the validity and enforceability of those documents;
and
(iii) its business as now conducted or contemplated and
which is material,
has been obtained or effected. Each is in full force and
effect. It has complied with each of them. It has paid all
applicable fees for each of them.
(g) (No misrepresentation) All information provided by it to the
Redraw Facility Provider is true in all material respects at
the date of this agreement or, if later, when provided.
(h) (Agreements disclosed) Each document or agreement to which it
is a party and which is material to the Trust Documents or
which has the effect of varying a Trust Document has been
disclosed to the Redraw Facility Provider in writing.
(i) (Trust) The Trust has been validly created and is in existence
at the date of this agreement.
(j) (Trust power) It is empowered by the Master Trust Deed:
(i) to enter into and perform the Trust Documents to
which it is expressed to be a party and to carry on
the transactions contemplated by those documents; and
(ii) to carry on the business of the Trust and to own
Assets of the Trust,
in its capacity as trustee of the Trust. There is no
restriction on or condition of its doing so.
(k) (Trust authorisations) All necessary resolutions have been
duly passed and all consents, approvals and other procedural
matters have been obtained or attended to as required by the
Master Trust Deed for it to enter into and perform the Trust
Documents to which it is expressed to be a party.
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(l) (Sole trustee) It has been validly appointed as trustee of the
Trust and is the sole trustee of the Trust.
(m) (Removal) No notice has been given to it, and so far as it is
aware no resolution has been passed or direction or notice has
been given removing it as trustee of the Trust.
(n) (No resettlement) Other than as permitted by the Trust
Documents, it has not taken any action that will cause the
property of the Trust to be re-settled, set aside or
transferred to any other trust.
(o) (No termination) It has not taken any action that will cause
the Trust to be terminated, nor has it taken any action that
will result in the vesting of the Assets of the Trust.
(p) (Right of indemnity) It has not taken any action which will
limit its right of indemnity out of, and lien over, the Assets
of the Trust.
(q) (Compliance with Master Trust Deed) It has complied with its
obligations and duties under the Master Trust Deed, the Series
Notice and (to the best of its knowledge and belief) at law.
No one has alleged that it has not so complied.
11.2 Reliance on representations and warranties
The Trustee acknowledges that the Redraw Facility Provider has entered
the Trust Documents in reliance on the representations and warranties
in this clause.
12. UNDERTAKINGS
12.1 General undertakings
Each of the Trustee and the Trust Manager undertake to the Redraw
Facility Provider as follows in relation to the Trust, except to the
extent that the Redraw Facility Provider consents.
(a) (Authorisations) It will ensure that each Authorisation
required for:
(i) the execution, delivery and performance by it of the
Trust Documents to which it is expressed to be a
party and the transactions contemplated by those
documents;
(ii) the validity and enforceability of those documents;
and
(iii) the carrying on by it of its business as now
conducted or contemplated, is obtained and promptly
renewed and maintained in full force and effect. It
will pay all applicable fees for them. It will
provide copies promptly to the Redraw Facility
Provider when they are obtained or renewed.
(b) (Negative pledge) It will not create or allow to exist a
Security Interest over the Assets of the Trust other than:
(i) under the Trust Documents; or
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(ii) a lien arising by operation of law in the ordinary
course of day-to-day trading and not securing
indebtedness in respect of financial accommodation
where it duly pays the indebtedness secured by that
lien other than indebtedness contested in good faith.
(c) (Comply with obligations) It will duly and punctually comply
with its obligations under the Trust Documents.
(d) (Notice to Redraw Facility Provider) It will notify the Redraw
Facility Provider as soon as it becomes aware of:
(i) any Event of Default; and
(ii) any proposal by a Government Agency to acquire
compulsorily any Assets of the Trust.
12.2 Undertakings relating to Trust
The Trustee, as trustee of the Trust, undertakes to the Redraw Facility
Provider as follows, except to the extent that the Redraw Facility
Provider consents.
(a) (Amendment to Master Trust Deed) It will not consent to any
amendment to the Master Trust Deed, the Series Notice or any
other Trust Document would change:
(i) the basis upon which the amount of any Redraw Advance
to be made is calculated;
(ii) the entitlement of the Trustee to request any Redraw
Advance; or
(iii) the basis of calculation or order of application of
any amount to be paid or applied under clause 6 of
the Series Notice.
(b) (Resettlement) It will not take any action that will be result
in a resettlement, setting aside or transfer of any asset of
the Trust other than a transfer which complies with the Master
Trust Deed, the Series Notice and the other Trust Documents.
(c) (No additional trustee) It will act continuously as trustee of
the Trust in accordance with the Master Trust Deed until the
Trust has been terminated or until it has retired or been
removed in accordance with the Master Trust Deed.
12.3 Term of undertakings
Each undertaking in this clause continues from the date of this
agreement until all moneys actually or contingently owing under this
agreement are fully and finally repaid.
13. EVENTS OF DEFAULT
13.1 Events of Default
Each of the following is an Event of Default (whether or not it is in
the control of the Trustee).
(a) (Payments) An amount is available for payment under clause 6
and the Trustee does not pay that amount within 10 Business
Days of its due date.
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(b) (Insolvency Event) An Insolvency Event occurs:
(i) in relation to the Trust (as if it was a relevant
corporation for the purposes of the definition of
Insolvency Event); or
(ii) in relation to the Trustee, and a successor trustee
of the Trust is not appointed with 30 days of that
Insolvency Event.
(c) (Termination Date) The Termination Date occurs in relation to
the Trust.
(d) (Enforcement of Security Trust Deed) An Event of Default (as
defined in the Security Trust Deed) occurs and any action is
taken to enforce the Security Interest under the Security
Trust Deed over the Assets of the Trust (including appointing
a receiver or receiver and manager or selling any of those
Assets).
13.2 Consequences
In addition to any other rights provided by law or any Trust Document,
at any time after an Event of Default (whether or not it is continuing)
the Redraw Facility Provider may do all or any of the following:
(a) by notice to the Trustee and the Trust Manager declare all
moneys actually or contingently owing under this agreement
immediately due and payable, and the Trustee will immediately
pay the Principal Outstanding together with accrued interest
and fees and all such other moneys; and
(b) by notice to the Trustee and the Trust Manager cancel the
Redraw Limit with effect from any date specified in that
notice.
14. CONTROL ACCOUNTS
The accounts kept by the Redraw Facility Provider constitute sufficient
evidence, unless proven wrong, of the amount at any time due from the
Trustee under this agreement.
15. WAIVERS, REMEDIES CUMULATIVE
(a) No failure to exercise and no delay in exercising any right,
power or remedy under this agreement operates as a waiver. Nor
does any single or partial exercise of any right, power or
remedy preclude any other or further exercise of that or any
other right, power or remedy.
(b) The rights, powers and remedies provided to the Redraw
Facility Provider in this agreement are in addition to, and do
not exclude or limit, any right, power or remedy provided by
law.
16. SEVERABILITY OF PROVISIONS
Any provision of this agreement which is prohibited or unenforceable in
any jurisdiction is ineffective as to that jurisdiction to the extent
of the prohibition or unenforceability. That does not invalidate the
remaining provisions of this agreement nor affect the validity or
enforceability of that provision in any other jurisdiction.
17. SURVIVAL OF REPRESENTATIONS
All representations and warranties in this agreement survive the
execution and delivery of this agreement and the provision of advances
and accommodation.
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18. INDEMNITY AND REIMBURSEMENT OBLIGATION
Unless stated otherwise, each indemnity, reimbursement or similar
obligation in this agreement:
(a) is a continuing obligation;
(b) is a separate and independent obligation;
(c) is payable on demand; and
(d) survives termination or discharge of this agreement.
19. MORATORIUM LEGISLATION
To the full extent permitted by law all legislation which at any time
directly or indirectly:
(a) lessens, varies or affects in favour of the Trustee any
obligation under a Trust Document; or
(b) delays, prevents or prejudicially affects the exercise by the
Redraw Facility Provider of any right, power or remedy
conferred by this agreement, is excluded from this agreement.
20. CONSENTS AND OPINIONS
Except where expressly stated the Redraw Facility Provider may give or
withhold, or give conditionally, approvals and consents, may be
satisfied or unsatisfied, may form opinions, and may exercise its
rights, powers and remedies, at its absolute discretion.
21. ASSIGNMENTS
Neither party may assign or transfer any of its rights or obligations
under this agreement without the prior written consent of the other
party, or if the rating of the Notes would be withdrawn or reduced as a
result of the assignment.
22. NOTICES
All notices, requests, demands, consents, approvals, agreements or
other communications to or by a party to this agreement:
(a) must be in writing;
(b) must be signed by an Authorised Signatory of the sender; and
(c) will be taken to be duly given or made:
(i) (in the case of delivery in person or by post) when
delivered, received or left at the address of the
recipient shown in this agreement or to any other
address which it may have notified the sender;
(ii) (in the case of facsimile transmission) on receipt of
a transmission report confirming successful
transmission; and
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(iii) (in the case of a telex) on receipt by the sender of
the answerback code of the recipient at the end of
transmission,
but if delivery or receipt is on a day on which business is
not generally carried on in the place to which the
communication is sent or is later than 4.00 pm (local time),
it will be taken to have been duly given or made at the
commencement of business on the next day on which business is
generally carried on in that place.
23. AUTHORISED SIGNATORIES
The Trustee irrevocably authorises the Redraw Facility Provider to rely
on a certificate by persons purporting to be its directors and/or
secretaries as to the identity and signatures of its Authorised
Signatories. The Trustee warrants that those persons have been
authorised to give notices and communications under or in connection
with this agreement.
24. GOVERNING LAW AND JURISDICTION
This agreement is governed by the laws of [New South Wales]. The
Trustee submits to the non-exclusive jurisdiction of courts
exercising jurisdiction there.
25. COUNTERPARTS
This agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
26. ACKNOWLEDGEMENT BY TRUSTEE
The Trustee confirms that:
(a) it has not entered into this agreement in reliance on, or as a
result of, any statement or conduct of any kind of or on
behalf of the Redraw Facility Provider (including any advice,
warranty, representation or undertaking); and
(b) the Redraw Facility Provider is not obliged to do anything
(including disclose anything or give advice),
except as expressly set out in this agreement.
27. LIMITED RECOURSE
27.1 General
Clause 33 of the Master Trust Deed applies to the obligations and
liabilities of the Trustee and the Trust Manager under this agreement.
27.2 Liability of Trustee limited to its right to indemnity
(a) This agreement applies to the Trustee only in its capacity as
trustee of the Trust and in no other capacity. A liability
arising under or in connection with this agreement or the
Trust can be enforced against the Trustee only to the extent
to which it can be satisfied out of property of the Trust out
of which the Trustee is actually indemnified for the
liability. This limitation of the Trustee's liability applies
despite any other provision of this agreement and extends to
all liabilities and obligations of the Trustee in any way
connected with any representation, warranty, conduct,
omission, agreement or transaction related to this agreement
or the Trust.
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(b) The parties other than the Trustee may not ▇▇▇ the Trustee in
any capacity other than as trustee of the Trust or seek the
appointment of a receiver (except under the Security Trust
Deed), or a liquidator, an administrator or any similar person
to the Trustee or prove in any liquidation, administration or
arrangements of or affecting the Trustee.
(c) The provisions of this clause 3 shall not apply to any
obligation or liability of the Trustee to the extent that it
is not satisfied because under a Transaction Document or by
operation of law there is a reduction in the extent of the
Trustee's indemnification out of the Assets of the Trust as a
result of the Trustee's fraud, negligence or breach of trust.
(d) It is acknowledged that the Trust Manager, the Servicer, the
Note Trustee, the Principal Paying Agent, the other Paying
Agents and the Agent Bank (each a Relevant Party) are
responsible under this agreement and the other Transaction
Documents for performing a variety of obligations relating to
the Trust. No act or omission of the Trustee (including any
related failure to satisfy its obligations under this
agreement) will be considered fraud, negligence or breach of
trust of the Trustee for the purpose of sub-paragraph (c) to
the extent to which the act or omission was caused or
contributed to by any failure by any Relevant Party or any
other person who provides services in respect of the Trust
(other than a person who has been delegated or appointed by
the Trustee and for whom the Trustee is responsible under this
agreement or the relevant Transaction Documents, but excluding
any Relevant Party) to fulfil its obligations relating to the
Trust or by any other act or omission of a Relevant Party or
any other person who provides services in respect of the Trust
(other than a person who has been delegated or appointed by
the Trustee and for whom the Trustee is responsible under this
agreement or the relevant Transaction Documents, but excluding
any Relevant Party).
(e) No attorney, agent, receiver or receiver and manager appointed
in accordance with this agreement or any other Transaction
Documents (including a Relevant Party) has authority to act on
behalf of the Trustee in a way which exposes the Trustee to
any personal liability and no act or omission of any such
person will be considered fraud, negligence or breach of trust
of the Trustee for the purpose of sub-paragraph (c), if the
Trustee has exercised reasonable care in the selection and
supervision of such a person.
27.3 Unrestricted remedies
Nothing in clause 27.2 limits the Redraw Facility Provider in:
(a) obtaining an injunction or other order to restrain any breach
of this agreement by any party;
(b) obtaining declaratory relief; or
(c) in relation to its rights under the Security Trust Deed.
27.4 Restricted remedies
Except as provided in clause 27.3, the Redraw Facility Provider shall
not:
(a) (judgment) obtain a judgment for the payment of money or
damages by the Trustee;
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(b) (statutory demand) issue any demand under s459E(1) of the
Corporations Law (or any analogous provision under any other
law) against the Trustee;
(c) (winding up) apply for the winding up or dissolution of the
Trustee;
(d) (execution) levy or enforce any distress or other execution
to, on, or against any assets of the Trustee;
(e) (court appointed receiver) apply for the appointment by a
court of a receiver to any of the assets of the Trustee;
(f) (set-off or counterclaim) exercise or seek to exercise any
set-off or counterclaim against the Trustee; or
(g) (administrator) appoint, or agree to the appointment, of any
administrator to the Trustee,
or take proceedings for any of the above and the Redraw Facility
Provider waives its rights to make those applications and take those
proceedings.
28. REDRAW FACILITY PROVIDER'S OBLIGATIONS
The Trustee shall have no recourse to the Redraw Facility Provider in
relation to this agreement beyond its terms, and the Redraw Facility
Provider's obligations under this agreement are separate from, and
independent to, any obligations the Redraw Facility Provider may have
to the Trustee for any other reason (including under any other Trust
Document).
29. SUCCESSOR TRUSTEE
The Redraw Facility Provider shall do all things reasonably necessary
to enable any successor Trustee appointed under clause 24 of the Master
Trust Deed to become the Trustee under this agreement.
EXECUTED in Sydney.
Each attorney executing this agreement states that he has no notice of
revocation or suspension of his power of attorney.
SIGNED on behalf of )
WESTPAC SECURITIES )
ADMINISTRATION LIMITED )
by its attorney )
in the presence of: ) -----------------------------
Signature
----------------------------- -----------------------------
Witness Print name
-----------------------------
Print name
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SIGNED on behalf of )
WESTPAC BANKING CORPORATION )
by its attorney in the )
presence of: ) ----------------------------
Signature
------------------------------ ----------------------------
Witness Print name
-----------------------------
Print name
SIGNED on behalf of )
WESTPAC SECURITISATION )
MANAGEMENT PTY LIMITED by its )
attorney in the presence of: ) --------------------------
Signature
----------------------------- --------------------------
Witness Print name
-----------------------------
Print name
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ANNEXURE A
DRAWDOWN NOTICE
To: Westpac Banking Corporation
REDRAW FACILITY AGREEMENT - DRAWDOWN NOTICE NO. [*]
We refer to the Redraw Facility Agreement dated 1998 (the Facility Agreement).
Under clause 3.1 of the Redraw Facility Agreement we give you irrevocable notice
as follows:
(1) we wish to draw on [*] (the Drawdown Date); [NOTE: Date is to be a
Business Day.]
(2) the principal amount of the Redraw Advance is $[*]; [NOTE: Amount to
comply with the limits in clause 3.]
(3) we request that the proceeds be remitted to account number [*] at [*];
[NOTE: The account(s) to be completed only if funds not required in
repayment of any previous Redraw Advance(s).]
(4) we represent and warrant that no Event of Default [under the Facility
Agreement, and no Event of Default as defined in the Security Trust
Deed], subsists or will result from the drawing; and
(5) all representations and warranties under clause 11 of the Facility
Agreement are true as though they had been made at the date of this
Drawdown Notice and the Drawdown Date specified above in respect of the
facts and circumstances then subsisting.
Definitions in the Facility Agreement apply in this Drawdown Notice.
WESTPAC SECURITIES ADMINISTRATION LIMITED as trustee of the Series 1997-4E WST
Trust
By: [Authorised Signatory]
DATED
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ANNEXURE B
VERIFICATION CERTIFICATE
To: Westpac Banking Corporation
REDRAW FACILITY AGREEMENT
I [*] am a [director] of Westpac Securities Administration Limited of [*] (the
Company).
I refer to the Redraw Facility Agreement (the Facility Agreement) dated
_______ 1998 between the Company as Trustee, Westpac Banking Corporation and
Westpac Securitisation Management Pty Limited.
Definitions in the Facility Agreement apply in this Certificate.
I CERTIFY as follows.
1. Attached to this Certificate are complete and up to date copies of:
(a) unless paragraph 2 below applies, the memorandum and articles
of association of the Company (marked A); and
(b) a power of attorney granted by the Company for the execution
of the Facility Agreement to which it is expressed to be a
party (marked B). That power of attorney has not been revoked
or suspended by the Company and remains in full force and
effect.
2. If the memorandum and articles of association of the Company are not
attached to this certificate, there has been no change to them since
the Company last gave a certified copy of them to Westpac Banking
Corporation.
3. The following are signatures of the Authorised Signatories of the
Company and the persons who have been authorised to sign the Facility
Agreement and to give notices and communications under or in connection
with the Facility Agreement. If no signatures are set out below, the
Authorised Signatories with respect to the Facility Agreement are the
same as in relation to the Series 1997-3E WST Trust, a copy of those
signatures having previously been provided to Westpac Banking
Corporation.
Authorised Signatories
Name Position Signature
* * -----------------------
* * -----------------------
* * -----------------------
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Signatories
Name Position Signature
* * -----------------------
* * -----------------------
* * -----------------------
Signed:
-----------------------
Director
-----------------------
Print name
DATED
