Exhibit 10.2
REDRAW FACILITY AGREEMENT
PERPETUAL TRUSTEES CONSOLIDATED LIMITED
(Trustee)
▇▇.▇▇▇▇▇▇ BANK LIMITED
(Redraw Facility Provider)
CRUSADE MANAGEMENT LIMITED
(Manager)
Crusade Global Trust No. 1 of 2003
The Chifley Tower
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TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Master Trust Deed definitions 4
1.3 Interpretation 4
1.4 Determination, statement and certificate sufficient evidence 4
1.5 Transaction Document 4
1.6 Limited to Trust 4
1.7 Trustee as trustee 4
1.8 Knowledge of Trustee 5
2. PURPOSE 5
3. DRAWINGS 5
3.1 Redraw Advance 5
3.2 Making of Redraw Advances 6
4. FEES 6
4.1 Availability fee 6
4.2 Draw Margin 6
4.3 Capitalisation 7
4.4 GST 7
5. CANCELLATION OF REDRAW LIMIT 7
5.1 During Term 7
5.2 At end of Term 7
5.3 Cancellation by Redraw Facility Provider 7
5.4 Rollover Term renewal 8
6. REPAYMENT 8
6.1 Repayment of Redraw Advances 8
6.2 Final repayment 8
7. PREPAYMENTS 8
7.1 Voluntary prepayments 8
7.2 Draw Margin 8
7.3 Limitation on prepayments 8
8. PAYMENTS 9
8.1 Manner 9
8.2 Payment to be made on Business Day 9
8.3 Appropriation where insufficient moneys available 9
9. CHANGES IN LAW 9
9.1 Additional payments 9
9.2 Minimisation 10
9.3 Survival 10
10. CONDITIONS PRECEDENT 10
10.1 Conditions precedent to initial Drawdown Notice 10
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10.2 Conditions precedent to each Redraw Advance 11
11. REPRESENTATIONS AND WARRANTIES 11
11.1 Representations and warranties 11
11.2 Reliance on representations and warranties 12
12. UNDERTAKINGS 12
12.1 General undertakings 12
12.2 Undertakings relating to Trust 13
12.3 Term of undertakings 13
13. EVENTS OF DEFAULT 13
13.1 Events of Default 13
13.2 Consequences 14
14. CONTROL ACCOUNTS 14
15. WAIVERS, REMEDIES CUMULATIVE 14
16. SEVERABILITY OF PROVISIONS 14
17. SURVIVAL OF REPRESENTATIONS 14
18. INDEMNITY AND REIMBURSEMENT OBLIGATION 14
19. MORATORIUM LEGISLATION 15
20. CONSENTS AND OPINIONS 15
21. ASSIGNMENTS 15
22. NOTICES 15
23. AUTHORISED SIGNATORIES 16
24. GOVERNING LAW AND JURISDICTION 16
25. COUNTERPARTS 16
26. ACKNOWLEDGEMENT BY TRUSTEE 16
27. LIMITED RECOURSE 16
27.1 General 16
27.2 Liability of Trustee limited to its right to indemnity 16
27.3 Unrestricted remedies 17
27.4 Restricted remedies 18
28. REDRAW FACILITY PROVIDER'S OBLIGATIONS 18
29. SUCCESSOR TRUSTEE 18
ANNEXURE A 21
Drawdown Notice 21
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DATE 2003
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PARTIES
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1. PERPETUAL TRUSTEES CONSOLIDATED LIMITED (ABN 81 004 029 841) of
▇▇▇▇▇ ▇, ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ in
its capacity as trustee of the Crusade Global Trust No. 1 of
2003 (the TRUSTEE);
2. ▇▇.▇▇▇▇▇▇ BANK LIMITED (ABN 92 055 513 070) incorporated in
Australia and registered in New South Wales of ▇-▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ (the REDRAW FACILITY
PROVIDER); and
3. CRUSADE MANAGEMENT LIMITED (ABN 90 072 715 916) incorporated in
Australia and registered in the Australian Capital Territory of
▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ (the
MANAGER).
RECITALS
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A. The Trustee is the trustee of the Crusade Global Trust No. 1 of
2003 and proposes to issue Notes pursuant to the Master Trust
Deed and Supplementary Terms Notice.
B. The Manager has arranged for the Redraw Facility Provider to
provide the Trustee with the Redraw Facility under which loans
of up to 2% of the sum of the aggregate of the Stated Amounts of
the Notes may be made available to the Trustee.
C. The Redraw Facility Provider has agreed to provide the Redraw
Facility to the Trustee on the terms and conditions contained in
this agreement.
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IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
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1.1 DEFINITIONS
In this agreement the following definitions apply unless the context
requires otherwise, or unless otherwise defined.
AVAILABLE REDRAW AMOUNT means at any time the greater of:
(a) the Redraw Limit at that time less the Redraw Principal
Outstanding at that time; and
(b) zero.
DRAWDOWN DATE means, in relation to a Redraw Advance, the date on which
the Redraw Advance is or is to be made under this agreement in
accordance with the Drawdown Notice.
DRAWDOWN NOTICE means a notice under clause 3.1.
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EVENT OF DEFAULT means any of the events specified in clause 13.
FINAL REPAYMENT DATE means the Final Maturity Date.
MASTER TRUST DEED means the deed entitled "Master Trust Deed" between,
among others, the Trustee and the Manager dated 14 March 1998.
NOTICE OF CREATION OF TRUST means the Notice of Creation of Trust dated
on or before the date of this agreement issued under the Master Trust
Deed in relation to the Trust.
ONE MONTH BANK ▇▇▇▇ RATE on any date means the rate calculated by
taking the simple average of the rates quoted on the Reuters Screen
BBSW Page at approximately 10.00 am, Sydney time, on that date (the
CALCULATION DAY) for each Reference Bank so quoting (but not fewer than
five) as being the mean buying and selling rate for a ▇▇▇▇ (which for
the purpose of this definition means a ▇▇▇▇ of exchange of the type
specified for the purpose of quoting on the Reuters Screen BBSW Page)
having a tenor of 30 days eliminating the highest and lowest mean rates
and taking the average of the remaining mean rates and then (if
necessary) rounding the resultant figure upwards to four decimal
places. If on the Calculation Day fewer than five Reference Banks have
quoted rates on the Reuters Screen BBSW Page, the rate for the
Calculation Day shall be calculated as above by taking the rates
otherwise quoted by five of the Reference Banks on application by the
parties for such a ▇▇▇▇ of the same tenor. If on the Calculation Day
the rate cannot be determined in accordance with the foregoing
procedures then the rate for the Calculation Day shall mean such rate
as is agreed between the Manager and the Trustee having regard to
comparable indices then available, PROVIDED THAT on the first Reset
Date of any Redraw Advance the ONE MONTH BANK ▇▇▇▇ RATE shall be an
interpolated rate calculated with reference to the tenor of the period
from (and including) that Reset Date to (but not including) the next
Reset Date.
REDRAW ADVANCE means any advance made or to be made under this
agreement.
REDRAW FACILITY means the redraw facility provided by the Redraw
Facility Provider under this agreement.
REDRAW LIMIT means 2% of the sum of the aggregate of the Stated Amounts
of the Class A Notes, Class B Notes and Class C Notes (as adjusted by
the Manager on each anniversary of this agreement) or any other amount
as agreed in writing between the Redraw Facility Provider, the Trustee
and the Manager, as reduced or cancelled under this agreement, provided
that the Redraw Limit may not be increased unless each Designated
Rating Agency has confirmed in writing that the increase would not
result in a downgrading of the rating given to any Note or the
withdrawal of the rating of any Note.
REDRAW 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.
REFERENCE BANK has the meaning given in the ISDA Definitions.
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.
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ROLLOVER TERM means:
(a) the period from the date of this agreement to the date which is
364 days after the date of this agreement; but
(b) if the Redraw Facility Provider has agreed to extend the term of
this agreement in accordance with clause 5.4, the period from the
commencement of that extended term to the date which is 364 days
after the date of that commencement, in each case subject to
clause 5.4.
SUPPLEMENTARY TERMS NOTICE means the Supplementary Terms Notice issued
by the Manager on or about the date of this agreement under the Master
Trust Deed.
TERM means the period commencing on the date of this agreement and
expiring on the earlier of:
(a) the date on which the Notes are redeemed in full in accordance
with the Master Trust Deed and the Supplementary Terms Notice;
(b) the date declared by the Redraw Facility Provider under clause
13.2;
(c) the date on which the Trustee enters into a redraw facility, to
replace this agreement with any person to enable it to fund
Redraw Shortfalls;
(d) the date on which Crusade Management Limited retires or is
removed as 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 1 year after the Final Maturity Date;
(g) the date on which the Redraw Limit is cancelled in full by the
Redraw Facility Provider under clause 5.3; and
(h) the expiry of the Rollover Term.
TRUST means the Crusade Global Trust No. 1 of 2003 constituted under
the Master Trust Deed on the terms of the Supplementary Terms Notice.
TRUST DOCUMENT means:
(a) this agreement;
(b) the Master Trust Deed;
(c) the Notice of Creation of Trust;
(d) the Supplementary Terms Notice;
(e) the Custodian Agreement;
(f) the Security Trust Deed;
(g) the Servicing Agreement;
(h) the Note Trust Deed;
(i) the Agency Agreement;
(j) each Note; or
(k) the Support Facilities.
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TRUSTEE means the trustee of the Trust at the date of this agreement or
any person which becomes a successor trustee under clause 20 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 Supplementary Terms Notice) and the Supplementary Terms
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.
1.7 TRUSTEE AS TRUSTEE
In this agreement, except where provided to the contrary;
(a) a reference to the Trustee is a reference to the Trustee in its
capacity as trustee of the Trust and in no other capacity; and
(b) a reference to the undertaking, property, assets, business or
money of the Trustee is a reference to the undertaking, property,
assets, business or money of the Trustee in its capacity referred
to in paragraph (a).
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1.8 KNOWLEDGE OF TRUSTEE
In relation to the Trust, the Trustee will be considered to have
knowledge or notice of or be aware of any matter or thing if the
Trustee has knowledge, notice or awareness of that matter or thing by
virtue of the actual notice or awareness of the officers or employees
of the Trustee who have day to day responsibility for the
administration of the Trust.
2. PURPOSE
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The Manager directs 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 the Approved Seller or to repay a previous
Redraw Advance in accordance with clause 3.2(a) of this agreement and
clause 5.8 of the Supplementary Terms Notice, and for no other purpose.
3. DRAWINGS
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3.1 REDRAW ADVANCE
(a) Subject to this agreement, if at any time during the Term the
Manager determines that there is a Redraw Shortfall, the Manager
may direct the Trustee to request a Redraw Advance by giving to
the Trustee a duly completed but unsigned Drawdown Notice by no
later than 10.00 am on the Business Day following the
Determination Date on which the Redraw Shortfall is determined.
(b) A Drawdown Notice must be:
(i) in writing;
(ii) in or substantially in the form of Annexure A; and
(iii) signed by the Trustee.
The Trustee must, at the direction of the Manager, sign and
return the Drawdown Notice to the Manager by no later than 2.00
pm on the Business Day following the Determination Date on which
the Redraw Shortfall is determined for delivery to the Redraw
Facility Provider.
(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).
(d) A Drawdown Notice may specify that the Drawdown Date is to be the
same date as the Drawdown Notice only if:
(i) the Drawdown Notice is given to the Redraw Facility
Provider in accordance with this agreement before 10.00 am
on that date; and
(ii) the Redraw Advance is payable no earlier than 2.00 pm on
that date.
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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 the Approved Seller.
(b) The Redraw Facility Provider is not obliged to provide a Redraw
Advance if as a result the aggregate of Redraw Principal
Outstanding and the Carryover Redraw Charge Offs would exceed the
Redraw Limit.
4. FEES
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4.1 AVAILABILITY FEE
(a) An availability fee accrues at 0.10% 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.
(c) The Manager must direct the Trustee to, and the Trustee shall,
pay to the Redraw Facility Provider any accrued availability fee
in arrears on:
(i) each Quarterly Payment Date; and
(ii) at the end of the Term.
4.2 DRAW MARGIN
(a) A draw margin accrues due from day to day on the daily amount of
each Redraw Advance at the following rates:
(i) the sum of 0.30% per annum and the One Month 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 0.40% per annum and the One Month 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 margin is calculated on the actual number of days
elapsed and a year of 365 days.
(c) The Manager must direct the Trustee to, and the Trustee shall,
pay to the Redraw Facility Provider any accrued draw margin in
arrears on:
(i) each Payment Date; and
(ii) at the end of the Term.
(d) The One Month Bank ▇▇▇▇ Rate as at any date will be the One Month
Bank ▇▇▇▇ Rate determined:
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(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 margin payable under this clause 4 which is not paid when due
will immediately be capitalised. The draw margin is payable on any
capitalised amount at the rate and in the manner referred to in this
clause 4.
4.4 GST
Neither the availability fee nor the draw margin specified in this
clause 4 are to be increased by reference to any goods and services tax
unless:
(a) the Trustee, the Manager and the Redraw Facility Provider
otherwise agree (that agreement not to be unreasonably withheld);
and
(b) the increase will not result in a downgrading or withdrawal of
the rating of any Notes.
5. CANCELLATION OF REDRAW LIMIT
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5.1 DURING TERM
(a) On giving not less than 5 Business Days irrevocable notice to the
Redraw Facility Provider the Trustee:
(i) may, in its absolute discretion and with no obligation to
do so; or
(ii) must, at the direction of the Manager,
cancel all or part of the Redraw Limit during the Term.
(b) A partial cancellation must be in a minimum of A$250,000 and a
whole multiple of A$50,000 unless the Redraw Facility Provider
agrees otherwise.
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 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 Redraw 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 5.1(c)(iv) and 5.4(c)(iv)
of the Supplementary Terms Notice.
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(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 5.2(a)(ii)(C)
of the Supplementary Terms Notice.
5.4 ROLLOVER TERM RENEWAL
If the Rollover Term will expire before the Final Repayment Date, then
not later than 90 days before the expiry of the Rollover Term, the
Redraw Facility Provider will notify the Trustee as to whether it will
or will not renew the Redraw Facility for 364 days (unless the Final
Repayment Date falls before the end of those 364 days, in which case
the renewal will apply up until the Final Repayment Date) commencing on
the date the notice of renewal is given. If the Redraw Facility
Provider fails to provide such notice, it will be deemed NOT to have
renewed the Redraw Facility.
6. REPAYMENT
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6.1 REPAYMENT OF REDRAW ADVANCES
The Trustee shall, at the direction of the Manager, repay the Redraw
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
5.4(c)(iv) of the Supplementary Terms 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 Redraw Principal Outstanding
or Carryover Redraw Charge Off or interest thereon has not been repaid
after the distribution of all Assets of the Trust in accordance with
the Supplementary Terms Notice, that Redraw Principal Outstanding or
Carryover Redraw Charge Off or interest and any other amounts due
hereunder will be cancelled and the Trustee will have no further
obligation to pay that amount under this agreement.
7. PREPAYMENTS
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7.1 VOLUNTARY PREPAYMENTS
Subject to clause 7.3, if directed by the Manager, the Trustee must
prepay all or part of the Redraw 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 MARGIN
When the Trustee prepays any amount of the Redraw Principal
Outstanding, it shall also pay any draw margin accrued on that amount.
7.3 LIMITATION ON PREPAYMENTS
The Trustee may not, and the Manager must not direct the Trustee to,
prepay all or any part of the Redraw Principal Outstanding except as
set out in this agreement and in accordance with the Supplementary
Terms Notice and the Security Trust Deed.
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8. PAYMENTS
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8.1 MANNER
The Trustee shall make all payments under this agreement:
(a) by cheque, electronic funds transfer or other agreed methods,
provided 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 (local 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, and only at the directions of the Manager,
the Master Trust Deed, the Security Trust Deed and the
Supplementary Terms 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 adjusted in accordance with the Modified Following
Business Day Convention.
8.3 APPROPRIATION WHERE INSUFFICIENT MONEYS AVAILABLE
The Redraw Facility Provider may appropriate amounts it receives as
between principal, interest and other amounts then payable as it sees
fit. This will override any appropriation made by the Trustee.
9. CHANGES IN LAW
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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,
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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 in each case, after the date of this
agreement, then:
(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 Manager and the Trustee; and
(f) on the following Payment Date from time to time the Trustee
shall, subject to the Supplementary Terms Notice, pay for the
account of the Redraw Facility Provider the amount, absent
manifest error, 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 Tax
(other than any Tax on the net income of any person) or reserve,
redraw, 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
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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
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Provider receives all of the following in form and substance
satisfactory to the Redraw Facility Provider:
(a) (TRUST DOCUMENTS) from the Manager a certified copy of each duly
executed and (where relevant) stamped Trust Document;
(b) (MASTER TRUST DEED CONDITIONS PRECEDENT) from the Manager
evidence that the conditions precedent referred to in clause 6 of
the Master Trust Deed have been satisfied;
(c) (SECURITY TRUST DEED) from the Manager evidence that the Security
Trust Deed has been or will be registered with each relevant
Government Agency free from all prior Security Interests and
third party rights and interests; and
(d) (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) (DOCUMENTS BINDING) This agreement constitutes (or will, when
executed and delivered, constitute) its legal, valid and binding
obligations (subject to laws generally affecting creditors'
rights and to general principles of equity).
(b) (TRANSACTIONS PERMITTED) The execution of this agreement did not
and will not contravene any applicable law or authorisation which
affects the Trustee in its capacity as trustee of the Trust.
(c) (EVENT OF DEFAULT) It has no actual knowledge of any Event of
Default having occurred which has not been remedied or waived in
writing.
(d) (OTHER DEFAULT) It has no actual knowledge of any default by it
or the Manager under either:
(i) the Master Trust Deed; or
(ii) any law, authorisation, agreement or obligation applicable
to the Assets of the Trust,
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which has not been remedied or waived in writing.
(e) (TRUST) The Trust has been validly created and is in existence at
the date of this agreement.
(f) (SOLE TRUSTEE) It is the sole trustee of the Trust at the date of
this agreement.
(g) (REMOVAL) No notice has been given to it and to its knowledge no
resolution has been passed or direction or notice has been given,
removing it as trustee of the Trust.
11.2 RELIANCE ON REPRESENTATIONS AND WARRANTIES
The Trustee acknowledges that the Redraw Facility Provider has entered
into 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 Manager severally 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 (which,
in the case of the Trustee, is limited to any Authorisation
relating to the Trustee in its capacity as trustee of the Trust
and not to the Trust generally) 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
(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 actually aware of:
(i) any Event of Default; and
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(ii) any proposal by a Government Agency to acquire
compulsorily any Assets of the Trust.
12.2 UNDERTAKINGS RELATING TO TRUST
Each of the Trustee, as trustee of the Trust, and the Manager severally
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 Supplementary Terms
Notice or any other Trust Document which would change:
(i) the basis upon which the amount of any Redraw Advance to
be made is calculated;
(ii) Clause 5.8 of the Supplementary Terms Notice; or
(iii) the basis of calculation or order of application of any
amount to be paid or applied under clause 5 of the
Supplementary Terms Notice unless the change would not be
adverse to the Redraw Facility Provider.
(b) (RESETTLEMENT) It will not take any action that will result in a
resettlement, setting aside or transfer of any asset of the Trust
other than a transfer which complies with the Master Trust Deed,
the Supplementary Terms Notice and the other Trust Documents.
(c) (NO ADDITIONAL TRUSTEE) It will act continuously as trustee or
manager (as the case may be) 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 or cease to be outstanding.
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.
(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 within 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
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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
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) subject to the Trust Documents, by notice to the Trustee and the
Manager declare all moneys actually or contingently owing under
this agreement immediately due and payable, and the Trustee will
immediately pay the Redraw Principal Outstanding together with
accrued interest and fees and all such other moneys; and
(b) by notice to the Trustee and the 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.
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;
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(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, except for the creation of a charge by the
Trustee under the Security Trust Deed.
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
(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
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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 30 of the Master Trust Deed applies to the obligations and
liabilities of the Trustee and the Manager under this agreement.
27.2 LIABILITY OF TRUSTEE LIMITED TO ITS RIGHT TO INDEMNITY
(a) The Trustee enters into this agreement only in its capacity as
trustee of the Trust and in no other capacity (except where the
Transaction Documents provide otherwise). Subject to paragraph
(c) below, 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 the assets and
property of the Trust which are available to satisfy the right of
the Trustee to be exonerated or indemnified for the liability.
This limitation of the Trustee's liability
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applies despite any other provision of this agreement and extends
to all liabilities and obligations of the Trustee in any way
connected with any representation, warranty, conduct, omission,
agreement or transaction related to this agreement or the Trust.
(b) Subject to paragraph (c) below, no person (including any Relevant
Party) may take action against 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 arrangement of or affecting
the Trustee.
(c) The provisions of this clause 27.2 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 or exoneration out of the Assets of the
Trust as a result of the Trustee's fraud, negligence, or Default.
(d) It is acknowledged that the Relevant Parties are responsible
under this agreement or the other Transaction Documents for
performing a variety of obligations relating to the 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 Default of the Trustee for the purpose of
paragraph (c) above to the extent to which the act or omission
was caused or contributed to by any failure by any Relevant Party
or any person who has been delegated or appointed by the Trustee
in accordance with the Transaction Documents to fulfil its
obligations relating to the Trust or by any other act or omission
of a Relevant Party or any such person.
(e) In exercising their powers under the Transaction Documents, each
of the Trustee, the Security Trustee and the Noteholders must
ensure that no attorney, agent, delegate, receiver or receiver
and manager appointed by it in accordance with this agreement or
any other Transaction Documents 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 Default of the Trustee for the
purpose of paragraph (c) above.
(f) In this clause, RELEVANT PARTIES means each of the Manager, the
Servicer, the Custodian, the Calculation Agent, each Paying
Agent, the Note Registrar, the Note Trustee and the provider of
any Support Facility.
(g) Nothing in this clause limits the obligations expressly imposed
on the Trustee under the Transaction Documents.
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.
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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;
(b) (STATUTORY DEMAND) issue any demand under section 459E(1) of the
Corporations ▇▇▇ ▇▇▇▇ (Cth) (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 20 of the Master
Trust Deed to become the Trustee under this agreement.
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EXECUTED in Sydney.
Each attorney executing this agreement states that he or she has no notice of
revocation or suspension of his or her power of attorney.
TRUSTEE
SIGNED by )
PERPETUAL TRUSTEES )
CONSOLIDATED LIMITED )
by its attorney under Power of Attorney dated )
)
in the presence of: )
----------------------------------------------
Signature
-------------------------------------------------- ----------------------------------------------
Witness Print name
--------------------------------------------------
Print name
REDRAW FACILITY PROVIDER
SIGNED on behalf of )
▇▇.▇▇▇▇▇▇ BANK LIMITED )
by its attorney under Power of )
Attorney dated )
in the presence of: )
----------------------------------------------
Signature
-------------------------------------------------- ----------------------------------------------
Witness Print name
--------------------------------------------------
Print name
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MANAGER
SIGNED on behalf of )
CRUSADE MANAGEMENT LIMITED )
)
by its attorney under Power of )
Attorney dated )
in the presence of: )
----------------------------------------------
Signature
-------------------------------------------------- ----------------------------------------------
Witness Print name
--------------------------------------------------
Print name
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ANNEXURE A
DRAWDOWN NOTICE
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To: ▇▇.▇▇▇▇▇▇ Bank Limited
REDRAW FACILITY AGREEMENT - DRAWDOWN NOTICE NO. [*]
We refer to the Redraw Facility Agreement dated [*] 2003 (the FACILITY
AGREEMENT).
Under clause 3.1 of the 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 A$[*]; [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) to the best of our knowledge and, relying on the information provided by
the Manager, the proceeds of the advance will be used for the purposes
contemplated in the Facility Agreement;
(5) to the best of our knowledge and relying on the information provided by the
Manager, no Event of Default under the Facility Agreement, and no Event of
Default as defined in the Security Trust Deed, remains unremedied or has
not been waived in writing or will result from the drawing; and
(6) 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.
PERPETUAL TRUSTEES CONSOLIDATED LIMITED
By: Authorised Signatory
DATED
Verified by Crusade Management Limited
By: Authorised Signatory
Dated
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