Exhibit 10.3
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National RMBS Trust 2004-1
Redraw Facility Agreement
Date: 28 September 2004
Parties: PERPETUAL TRUSTEE COMPANY LIMITED (ABN 42 000 001 007) in
its capacity as trustee of the Trust and having an office
at ▇▇▇▇▇ ▇, ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
("Issuer Trustee")
NATIONAL GLOBAL MBS MANAGER PTY LTD (ABN 36 102 668 226)
having an office at ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ("Global Trust Manager")
NATIONAL AUSTRALIA BANK LIMITED (ABN 12 004 444 937)
having its registered office at ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ("Redraw Facility
Provider").
1 Interpretation
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1.1 The following words have these meanings in this agreement
unless the contrary intention appears.
Available Redraw Amount means, on a Determination Date, an
amount equal to:
(a) the Redraw Limit on that Determination Date; less
(b) the Redraw Principal Outstanding on the previous
Determination Date.
Availability Period means the period commencing on the
Closing Date and ending on the Redraw Facility Termination
Date.
Changed Costs Event means:
(a) the introduction or commencement after the date of
this agreement of, or any change in, or in the
interpretation, application or administration of the
compliance by, or a change in the method of
compliance by, the Redraw Facility Provider with any
law or regulation;
(b) the incurrence of any new Taxes (other than a Tax on
the overall net income of the Redraw Facility
Provider); or
(c) the imposition by any regulatory authority in respect
of the Redraw Facility Provider of any new, or change
in the imposition of any (as at the date of this
agreement), reserve requirement, statutory reserve
deposit, special deposit, capital adequacy ratio,
equity ratio, liquidity ratio, liabilities ratio or
other similar requirement,
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whether such event results in an increase or a decrease in
the relevant amount or cost referred to in clause 10.1.
Definitions Schedule means the deed entitled "National
RMBS Trusts Definitions Schedule" dated 3 January 2001
between the parties named in schedule 1 to that deed.
Drawdown Date means the date on which a drawing is or is
to be made under the Redraw Facility, which date must be a
Payment Date in respect of the Trust.
Drawdown Notice means a notice given in accordance with
clause 4.1.
Performing Mortgage Loans Amount means, at any time, the
aggregate of:
(a) the Outstanding Principal Balance of all Housing
Loans which comprise part of the Purchased Mortgage
Loans in respect of which no payment due from the
Debtor has been in arrears for a period of more than
90 consecutive days; and
(b) the Outstanding Principal Balance of all Housing
Loans which comprise part of the Purchased Mortgage
Loans in respect of which a payment from the Debtor
has been in arrears for a period of more than 90
consecutive days and in respect of which a valid
claim is available under a Mortgage Insurance Policy.
Redraw Drawing means a drawing made under the Redraw
Facility.
Redraw Event of Default has the meaning given to it in
clause 15.1.
Redraw Facility means the facility granted pursuant to
this agreement.
Redraw Facility Termination Date means the earliest of:
(a) the Scheduled Termination Date;
(b) the date upon which the Redraw Facility Provider
makes a determination under clause 11.1;
(c) the date upon which the Redraw Limit is cancelled or
reduced to zero under clause 9; and
(d) the date upon which the Redraw Facility Provider
terminates the Redraw Facility under clause 15.2.
Redraw Facility Provider Termination Date means the date
determined under clause 23.3.
Redraw Interest Period means each period determined in
accordance with clause 5.
Redraw Interest Rate means, in respect of a Redraw
Drawing, the interest rate calculated in accordance with
clause 6.2.
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Redraw Limit means, at any time, the lesser of:
(a) A$15 million;
(b) the Performing Mortgage Loans Amount on the last day
of the previous Collection Period; and
(c) the amount (if any) to which the Redraw Limit has
been reduced to at that time in accordance with
clause 9.2.
Scheduled Termination Date means the date which is 364
days after the date of this agreement or such later date
as is specified by the Redraw Facility Provider under
clause 2.7.
Supplemental Deed means the deed entitled "National RMBS
Trust 2004-1 Supplemental Deed" dated on or about the date
of this agreement between, amongst others, the Issuer
Trustee, the Global Trust Manager and the Security
Trustee.
Trust means the National RMBS Trust 2004-1.
Other definitions
1.2 Unless otherwise defined in this agreement, words and
phrases defined in the Definitions Schedule or the
Supplemental Deed have the same meaning in this agreement
with each reference to "this deed" being construed as a
reference to "this agreement". In the event of an
inconsistency between a definition in the Definitions
Schedule or the Supplemental Deed and this agreement, the
definition in this agreement prevails. In the event of an
inconsistency between a definition in the Definitions
Schedule and the Supplemental Deed, the definition in the
Supplemental Deed prevails.
Interpretation
1.3 Clauses 1.2 to 1.5 (inclusive) of the Definitions Schedule
are deemed to be incorporated in this agreement as if they
were set out in full in it.
Limitation
1.4 The rights and obligations of the parties under this
agreement relate only to the Trust. The Redraw Facility
Provider has no obligation under this agreement to provide
financial accommodation to the Issuer Trustee in respect
of any other trust established under the Master Trust
Deed.
2 The Redraw Facility
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Redraw Facility
2.1 The Redraw Facility Provider grants to the Issuer Trustee
a loan facility in Australian dollars in respect of the
Trust in an amount equal to the Redraw Limit. If the
Issuer Trustee wants to use the Redraw Facility, then it
may do so by one or more requests made in accordance with
clause 4. Subject to this agreement, the Redraw Facility
Provider agrees to provide financial accommodation
requested by the Issuer Trustee under this agreement.
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Purpose
2.2 The Redraw Facility is only available to be drawn to meet
any Redraw Shortfall in relation to the Trust.
Redraw Shortfall
2.3 The Redraw Limit will be available only if and to the
extent that there is a Redraw Shortfall on any
Determination Date.
Global Trust Manager to make drawing
2.4 If, on any Determination Date during the Availability
Period, the Global Trust Manager determines that there is
a Redraw Shortfall on that Determination Date, the Global
Trust Manager must arrange, by giving a direction to the
Issuer Trustee, for a Redraw Drawing to be made under the
Redraw Facility on the immediately following Payment Date
in accordance with this agreement and equal to the lesser
of:
(a) the Redraw Shortfall on that Determination Date; and
(b) the Available Redraw Amount on that Determination
Date.
Limit
2.5 Despite anything in this agreement, the Redraw Facility
Provider need not provide financial accommodation under
this agreement if to do so would result in the Redraw
Principal Outstanding exceeding the Redraw Limit.
Termination
2.6 The Redraw Facility will terminate on the earlier of the
Redraw Facility Termination Date and the Redraw Facility
Provider Termination Date.
Extension
2.7
(a) Not less than 90 days before the then Scheduled
Termination Date, the Global Trust Manager must
deliver a notice in writing to the Redraw Facility
Provider (with a copy to the Issuer Trustee)
requesting the Redraw Facility Provider to extend the
Scheduled Termination Date.
(b) Following the receipt by the Redraw Facility Provider
of the notice referred to in (a) above, or failing
receipt of that notice, the Redraw Facility Provider
may, in its absolute discretion, send the Issuer
Trustee a notice in writing (copied to the Global
Trust Manager) extending the then Scheduled
Termination Date to a later date, such date not to be
more than 364 days after the date of the notice.
3 Conditions precedent
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First Drawdown Notice
3.1 The Issuer Trustee must not deliver and the Global Trust
Manage must not direct the Issuer Trustee to deliver the
first Drawdown Notice until the Issuer Trustee has
received written notice from the Redraw Facility
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Provider that the Redraw Facility Provider has received
the following in form and substance satisfactory to it:
(a) (power of attorney) a certified copy of the power of
attorney under which a person signs and delivers this
agreement for the Issuer Trustee and the Global Trust
Manager and, if required by the Redraw Facility
Provider, evidence of its stamping and registration;
(b) (Transaction Documents) a certified copy of each
Transaction Document executed by each of the parties
to the respective document;
(c) (registration of charge) evidence of registration of,
or intention to register, the Deed of Charge with the
relevant Governmental Agencies; and
(d) (opinions) a legal opinion addressed to the Redraw
Facility Provider from the Global Trust Manager's
solicitors in a form and substance satisfactory to
the Redraw Facility Provider.
Drawings in respect of a Trust
3.2 The Redraw Facility Provider need not make any proposed
drawing available unless:
(a) (statements true) it is reasonably satisfied that the
statements contained in the Drawdown Notice are true
at the date of the Drawdown Notice and at the
Drawdown Date;
(b) (no Redraw Event of Default) no Redraw Event of
Default continues unremedied or would result from the
provision of the proposed drawing;
(c) (representations and warranties) the representations
and warranties made or deemed to be made by the
Global Trust Manager in any Transaction Document are
true and correct as of the date of the Drawdown
Notice and the Drawdown Date;
(d) (other security interests) other than in respect of
priorities granted by statute, the Redraw Facility
Provider has not received notice from any person that
it claims to have a Security Interest ranking in
priority to or equal with the Security Interest held
for the benefit of the Redraw Facility Provider in
accordance with the Master Security Trust Deed, the
Deed of Charge and the Supplemental Deed (other than
the Security Interests set out specifically in the
Master Security Trust Deed, the Deed of Charge and
the Supplemental Deed and ranking in priority to or
equal with the Security Interest held for the benefit
of the Redraw Facility Provider);
(e) (Notes) the Notes are still in existence and have not
been redeemed or repaid in full; and
(f) (Availability Period) the Availability Period has not
expired.
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Certification
3.3 Anything required to be certified under clause 3 must be
certified by an Authorised Person of the Issuer Trustee or
the Global Trust Manager (as applicable) as being true and
complete as at a date no earlier than the date of this
agreement.
Benefit of the Redraw Facility Provider
3.4 The conditions precedent set out in this clause 3 are for
the benefit of the Redraw Facility Provider and any of
them may be waived by the Redraw Facility Provider in its
absolute discretion.
4 Redraw Drawings
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Use of Redraw Facility
4.1 If the Issuer Trustee on the direction of the Global Trust
Manager wants to use the Redraw Facility to make a Redraw
Drawing, it must do so only in accordance with clause 2.4
and it must give a notice to the Redraw Facility Provider
meeting the requirements of clause 4.3 ("Drawdown
Notice").
Timing
4.2 Each Redraw Drawing must be drawn down on a Payment Date
in respect of the Trust. Each Redraw Drawing must be
credited to the Collections Account and applied only in
accordance with clause 14 of the Supplemental Deed.
Form of notice
4.3 A Drawdown Notice given under clause 4.1 must:
(a) be in or substantially in the form of Schedule 1;
(b) be signed by an Authorised Person of the Issuer
Trustee and the Global Trust Manager;
(c) specify the Drawdown Date, which must be a day which
complies with clause 4.2;
(d) specify the amount of the proposed Redraw Drawing and
its method of calculation; and
(e) be given no later than 4.00pm on the day which is 2
Business Days prior to the relevant Payment Date (or
such other period as may be agreed between the Issuer
Trustee, the Global Trust Manager and the Redraw
Facility Provider).
Effective
4.4 A Drawdown Notice is effective on actual receipt in
legible form by the Redraw Facility Provider and is
irrevocable.
Agreement to make Redraw Drawing
4.5 Subject to this agreement, the Redraw Facility Provider
agrees to deposit in the Collections Account the amount of
any Redraw Drawing
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in immediately available funds by 11.30am Melbourne time
on the relevant Payment Date.
5 Interest Periods
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Initial interest periods
5.1 The first Redraw Interest Period in respect of a Redraw
Drawing commences on (and includes) its Drawdown Date and
ends on (but excludes) the next Payment Date. Each
subsequent Redraw Interest Period will commence on (and
include) a Payment Date and end on (but exclude) the next
Payment Date.
Final interest period
5.2 A Redraw Interest Period in respect of a Redraw Drawing
which would otherwise end after the Final Termination Date
of the Trust ends on (but excludes) that Final Termination
Date.
6 Interest
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Payment of Interest
6.1 The Issuer Trustee agrees to pay to the Redraw Facility
Provider interest on the daily balance of each Redraw
Drawing from and including its Drawdown Date until the
Redraw Drawing is repaid in full. On each Payment Date,
the Issuer Trustee will pay to the Redraw Facility
Provider accrued interest on each Redraw Drawing. If, on
any Payment Date, all amounts due in accordance with this
clause 6.1 are not paid in full, on each following Payment
Date the Issuer Trustee must pay so much of the amounts as
are available for that purpose in accordance with the
Supplemental Deed until such amounts are paid in full.
Calculation of Interest
6.2 Interest is to be calculated for each Redraw Interest
Period. Interest accrues from day to day and is to be
calculated on actual days elapsed and a 365 day year.
Interest is payable quarterly in arrears on each Payment
Date in the manner contemplated by clause 6.1. The rate of
interest paid to the Redraw Facility Provider in respect
of a Redraw Interest Period is the sum of the Bank ▇▇▇▇
Rate on the first day of that Redraw Interest Period
(rounded to 3 decimal places) and 0.20% per annum ("Redraw
Interest Rate").
Interest on overdue amounts
6.3
(a) If any payment by the Issuer Trustee on a Payment
Date under clause 6.1 is insufficient to pay the full
amount of accrued interest on each Redraw Drawing and
any other interest due and payable under clause
6.3(b) up to the close of the Redraw Interest Period
just ended, such unpaid interest will itself
capitalise and bear interest in accordance with
clauses 6.1 and 6.2 of this agreement.
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(b) The Issuer Trustee agrees to pay interest on any
amount payable by it under this agreement (including
without limitation on any unpaid interest) from when
it becomes due for payment during the period that it
remains unpaid. Interest is payable at the rate set
out in clause 6.2, as if the amount is a Redraw
Drawing having successive Redraw Interest Periods
calculated in accordance with clause 5. The first
Redraw Interest Period commences on the day when the
outstanding amount becomes due for payment and each
subsequent Redraw Interest Period commences on the
day when the preceding Redraw Interest Period
expires.
Obligation unaffected
6.4 The Issuer Trustee's obligation to pay the outstanding
amount on the date it becomes due for payment is not
affected by clause 6.3.
Interest following judgment or order
6.5 If a liability under this agreement becomes merged in a
judgment or order, then the Issuer Trustee agrees to pay
interest to the Redraw Facility Provider on the amount of
that liability as an independent obligation. This interest
accrues from the date the liability becomes due for
payment both before and after the judgment or order until
it is paid, at a rate that is the higher of the rate
payable under the judgment or order and the rate referred
to in clause 6.3(b).
7 Repayment of Redraw Drawings
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Repayment of Redraw Drawings
7.1 Subject to clause 7.3, on each Payment Date, the Issuer
Trustee will repay to the Redraw Facility Provider so much
of the Redraw Principal Outstanding as there are funds
available for this purpose for that Payment Date in
accordance with clause 14 of the Supplemental Deed.
Re-Drawing
7.2 Amounts repaid pursuant to clause 7.1 may be redrawn by
the Issuer Trustee in accordance with the terms of this
agreement.
Repayment on Termination Date
7.3 Notwithstanding clause 7.1, on or before the Redraw
Facility Termination Date, the Issuer Trustee must repay:
(a) the Redraw Principal Outstanding;
(b) interest accrued thereon; and
(c) all other money due under this agreement,
in each case to the extent that amounts are available for
that purpose in accordance with the Master Trust Deed and
the Supplemental Deed.
7.4 If all amounts due in accordance with clause 7.3 are not
paid or repaid in full on the Payment Date immediately
following the Redraw Facility Termination Date, the Issuer
Trustee will repay so much of such
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amounts on succeeding Payment Dates as is available for
that purpose in accordance with the Master Trust Deed and
the Supplemental Deed until all such amounts are paid or
repaid in full.
7.5 A Redraw Charge-Off made under clause 14.15 of the
Supplemental Deed reduces the amount of the Redraw
Principal Outstanding from the date on which the Redraw
Charge-Off is made by the amount of the Redraw Charge-Off.
8 Availability Fee
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8.1 The Issuer Trustee will pay to the Redraw Facility
Provider an availability fee of 0.15% per annum on the
then un-utilised portion of the Redraw Limit. The fee will
be:
(a) calculated and accrue daily from the Closing Date on
the basis of a 365 day year; and
(b) paid quarterly in arrears on each Payment Date in
accordance with clause 14 of the Supplemental Deed.
8.2 The availability fee payable under clause 8.1 may be
varied from time to time by the Global Trust Manager and
the Redraw Facility Provider (and notified to the Issuer
Trustee) provided that the Global Trust Manager notifies
each Current Rating Agency of the variation and receives
confirmation from each Current Rating Agency that the
variation will not have an Adverse Rating Effect.
9 Cancellation or reduction of the Redraw Facility
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Cancellation
9.1
(a) Subject to paragraph (b), the Issuer Trustee may on
the direction of the Global Trust Manager cancel the
Redraw Facility by written notice to the Redraw
Facility Provider.
(b) The cancellation referred to in paragraph (a) will
only be effective if each Current Rating Agency has
confirmed that the cancellation of the Redraw
Facility will not have an Adverse Rating Effect,
unless all of the Notes have been or will be redeemed
on or before the date such cancellation is to take
effect in which case no such confirmation is
necessary.
Reduction of Redraw Limit
9.3 The Issuer Trustee may on the direction of the Global
Trust Manager reduce the Redraw Limit in whole or in part
by written notice to the Redraw Facility Provider and must
notify each Current Rating Agency of the reduction.
When notices effective
9.3 A notice given by the Issuer Trustee pursuant to either
clause 9.1 or 9.2 will be effective on the day which is 3
Business Days after receipt by the
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Redraw Facility Provider (or such other period agreed
between the Issuer Trustee, the Global Trust Manager and
the Redraw Facility Provider).
10 Changed costs event
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Determination
10.1 Subject to clause 19, if, as a result of a Changed Costs
Event, the Redraw Facility Provider determines that:
(a) there is any direct or indirect change in the cost to
the Redraw Facility Provider of providing, agreeing
to provide, maintaining its commitment to provide,
funding or maintaining financial accommodation under
this agreement;
(b) there is any direct or indirect change in any amount
received or receivable by the Redraw Facility
Provider in the effective return to the Redraw
Facility Provider in connection with financial
accommodation provided or to be provided under this
agreement (including, without limitation, the return
on the Redraw Facility Provider's overall capital
which could have been achieved but for the occurrence
of the Changed Costs Event); or
(c) the Redraw Facility Provider is required to make a
payment or to forgo interest or other return on or
calculated by reference to an amount received or
receivable under this agreement,
then the Issuer Trustee must on the direction of the
Global Trust Manager pay (if applicable) to the Redraw
Facility Provider on the next Payment Date and to the
extent available under clause 14 of the Supplemental Deed,
the additional amount which the Redraw Facility Provider
certifies is necessary to compensate the Redraw Facility
Provider for the changed cost, reduction, payment or
forgone interest or other return.
Indirect cost
10.2 If the changed cost, reduction, payment or forgone
interest or other return is indirect, the Issuer Trustee
(if applicable) agrees to pay the Redraw Facility Provider
the proportion of it which the Redraw Facility Provider
determines to be fairly attributable to the financial
accommodation made available under this agreement.
Certificate
10.3 The Redraw Facility Provider must provide a certificate to
the Global Trust Manager setting out details of the
relevant Changed Costs Event and the calculations made by
the Redraw Facility Provider to determine the new amount
payable under clause 10.1. Any such certificate signed by
the Redraw Facility Provider as to an amount payable by
the Issuer Trustee under this clause 10 is conclusive
evidence of the amount stated in it in the absence of
manifest error. In determining additional amounts payable
under this clause 10, the Redraw Facility Provider may use
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averaging and attribution methods commonly used by
financiers or any other reasonable averaging or
attribution method.
Minimisation
10.4 If the Redraw Facility Provider is to receive any
additional payment under clause 10.1, the Redraw Facility
Provider must use its best endeavours to make the relevant
advances or financial accommodation available by some
alternative means (including, without limitation, changing
its lending office or making the advances or financial
accommodation available through a Related Entity of the
Redraw Facility Provider) which would avoid the necessity
for the additional payment or reduce the amount of it.
Nothing in this clause 10.4 affects the obligations of the
Issuer Trustee under clauses 10.1 and 10.2.
11 Illegality
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11.1 If as a result of any change in a law, regulation, code of
practice or an official directive which has the force of
law or compliance with which is in accordance with the
practice of responsible bankers in the jurisdiction
concerned, or in their interpretation or administration
after the date of this agreement, the Redraw Facility
Provider determines that it is or has become apparent that
it will become contrary to that official directive,
impossible or illegal for the Redraw Facility Provider to
fund, provide or maintain financial accommodation or
otherwise observe its obligations under this agreement
then the Issuer Trustee, on the immediately following
Payment Date, must, to the extent that there are Principal
Collections available on that Payment Date, prepay so much
of the Redraw Principal Outstanding as the Redraw Facility
Provider specifies to the Issuer Trustee in writing
together with accrued interest and other amounts payable
by the Issuer Trustee under this agreement. The Redraw
Facility Provider's obligations to the Issuer Trustee
under this agreement terminate on the giving of the
notice.
11.2 If, on any Payment Date, all amounts due in accordance
with clause 11.1 are not paid or repaid in full, on each
following Payment Date the Issuer Trustee will pay or
repay so much of the amounts as there are funds available
for that purpose on that Payment Date in accordance with
the Supplemental Deed until such amounts are paid or
repaid in full.
12 Payments and taxes
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Manner of payment
12.1 The Issuer Trustee agrees to make payments to the Redraw
Facility Provider under this agreement not later than
5.00pm local time in the place of payment on the due date
in immediately available funds to the account of the
Redraw Facility Provider at the bank which the Redraw
Facility Provider designates by prior written notice to
the Issuer Trustee. All payments must be made in
accordance with the Master Trust Deed and the Supplemental
Deed.
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No set off, etc
12.2 The Issuer Trustee agrees to make payments under this
agreement without set-off or counterclaim and free and
clear of any withholding or deduction for Taxes unless
prohibited by law.
13 Representations and warranties
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General representations and warranties
13.1 The Issuer Trustee represents and warrants to the Global
Trust Manager and the Redraw Facility Provider as follows:
(a) (incorporation) it is validly incorporated and
existing under the laws pursuant to which it purports
to have been incorporated;
(b) (corporate power) it has the corporate power to own
its assets and to carry on its business as it is now
being conducted and as proposed to be conducted under
this agreement and under each of the Transaction
Documents to which it is a party;
(c) (power) it has full power and authority to enter into
and perform its obligations under this agreement and
each of the Transaction Documents to which it is a
party;
(d) (all action taken) it has taken all necessary
internal corporate action to authorise the execution,
delivery and performance of this agreement and each
of the Transaction Documents to which it is a party
in accordance with their respective terms and no
additional approval or consent of any person is
required;
(e) (validity of obligations) this agreement and each of
the Transaction Documents to which it is a party
constitute legal, valid and binding obligations of it
and, subject to any necessary stamping and
registration and to doctrines of equity and laws and
defences generally affecting creditors' rights, are
enforceable in accordance with their respective
terms;
(f) (no violation) the execution, delivery and
performance by it of this agreement and each of the
Transaction Documents to which it is a party does not
and will not violate in any respect any material
provision of:
(i) any law, regulation, authorisation, ruling,
consent, judgement, order or decree of any
Governmental Agency; or
(ii) its constitution; or
(iii) any Encumbrance or document which is binding
upon it or any of its assets,
and (except in respect of the Deed of
Charge) does not and will not result in:
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(iv) the creation or imposition of any Encumbrance
or restriction of any nature on any of its
assets under the provision of; or
(v) the acceleration of the date of payment of any
obligation existing under,
any Encumbrance or document which is
binding upon it or its assets;
(g) (Authorisations) it has obtained all Authorisations
necessary for it to enter into, and perform its
obligations under, the Transaction Documents and such
Authorisations remain in full force and effect;
(h) (no Redraw Event of Default) to the best of its
knowledge no Redraw Event of Default or event which
with the giving of notice, lapse of time or other
applicable condition would become a Redraw Event of
Default has occurred which has not been waived or
remedied in accordance with this agreement;
(i) (creation of Trust) the Trust has been validly
created;
(j) (appointment of Issuer Trustee) it has been validly
appointed as the trustee of the Trust;
(k) (sole trustee) it is the sole trustee of the Trust;
(l) (trust power) it has power under the Transaction
Documents to enter into, perform and comply with its
obligations, and to carry out the transactions
contemplated by, this agreement;
(m) (no removal) as far as it is aware, there are no
proceedings to remove it as trustee of the Trust; and
(n) (vesting date) the vesting date has not occurred in
respect of the Trust.
13.2 The Global Trust Manager represents and warrants to the
Issuer Trustee and the Redraw Facility Provider as
follows:
(a) (incorporation) it is validly incorporated and
existing under the laws pursuant to which it purports
to have been incorporated;
(b) (corporate power) it has the corporate power to own
its assets and to carry on its business as it is now
being conducted and as proposed to be conducted under
this agreement and under each of the Transaction
Documents to which it is a party;
(c) (power) it has full power and authority to enter into
and perform its obligations under this agreement and
each of the Transaction Documents to which it is a
party;
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(d) (all action taken) it has taken all necessary
internal corporate action to authorise the execution,
delivery and performance of this agreement and each
of the Transaction Documents to which it is a party
in accordance with their respective terms and no
additional approval or consent of any person is
required;
(e) (validity of obligations) this agreement and each of
the Transaction Documents to which it is a party
constitute legal, valid and binding obligations of it
and, subject to any necessary stamping and
registration and to doctrines of equity and laws and
defences generally affecting creditors' rights, are
enforceable in accordance with their respective
terms;
(f) (no violation) the execution, delivery and
performance by it of this agreement and each of the
Transaction Documents to which it is a party does not
and will not violate in any respect any material
provision of:
(i) any law, regulation, authorisation, ruling,
consent, judgement, order or decree of any
Governmental Agency; or
(ii) its constitution;
(g) (Authorisations) it has obtained all Authorisations
necessary for it to enter into, and perform its
obligations under, the Transaction Documents and such
Authorisations remain in full force and effect; and
(h) (no Redraw Event of Default) to the best of its
knowledge no Redraw Event of Default or event which
with the giving of notice, lapse of time or other
applicable condition would become a Redraw Event of
Default has occurred which has not been waived or
remedied in accordance with this agreement.
Repetition
13.3 These representations and warranties are taken to be also
made on each date upon which a Drawdown Notice is provided
and each Payment Date with reference to the facts and
circumstances then subsisting, as if made on such day.
14 General undertakings by Issuer Trustee
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14.1 The Issuer Trustee undertakes to:
(a) (act as trustee) act continuously as trustee of the
Trust in accordance with the Master Trust Deed and
the Supplemental Deed until the Trust is terminated
or until it has retired or been removed in accordance
with the Master Trust Deed;
(b) (take actions) do everything and take all such actions
which are necessary (including, without limitation,
obtaining all such Authorisations and approvals as
are appropriate) to ensure that
15
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it is able to exercise all its powers and remedies
and perform all its obligations under this agreement
and any other arrangements entered by it pursuant to
the Transaction Documents to which it is party;
(c) (Authorisations) ensure that each Authorisation
required for it to act as trustee of the Trust and
for the business of the Trust to be conducted as now
conducted or as contemplated by the Transaction
Documents, is obtained and promptly renewed and
maintained in full force and effect;
(d) (not amend) not consent to amend or revoke the
provisions of the Master Trust Deed (insofar as it
affects the Trust) or the Supplemental Deed without
the prior written consent of the Redraw Facility
Provider (such consent not to be unreasonably
withheld or delayed); and
(e) (Event of Default) notify the Redraw Facility
Provider as soon as practicable after becoming aware
of an Event of Default or a Redraw Event of Default.
14.2 The Global Trust Manager undertakes to:
(a) (take actions) do everything and take all such actions
which are necessary (including, without limitation,
obtaining all such Authorisations and approvals as
are appropriate) to ensure that it is able to
exercise all its powers and remedies and perform all
its obligations under this agreement and any other
arrangements entered by it pursuant to the
Transaction Documents to which it is party;
(b) (Authorisations) ensure that each Authorisation
required for it to act as manager of the Trust and
for the business of the Trust to be conducted as now
conducted or as contemplated by the Transaction
Documents, is obtained and promptly renewed and
maintained in full force and effect;
(c) (Event of Default) notify the Redraw Facility
Provider as soon as practicable after becoming aware
of an Event of Default or a Redraw Event of Default;
(d) (act as manager) act continuously as manager of the
Trust in accordance with the Master Trust Deed and
the Supplemental Deed until the Trust is terminated
or until it has retired or been removed in accordance
with the Master Trust Deed;
(e) (not amend) not consent to amend or revoke the
provisions of the Master Trust Deed (insofar as it
affects the Trust) or the Supplemental Deed without
the prior written consent of the Redraw Facility
Provider (such consent not to be unreasonably
withheld or delayed); and
16
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(f) (provide directions) direct the Issuer Trustee to
make all payments required to be made by the Issuer
Trustee in accordance with this agreement.
15 Redraw Events of Default
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Redraw Events of Default
15.1 A Redraw Event of Default occurs if:
(a) (failure to pay) the Issuer Trustee fails to pay:
(i) any amount owing under this agreement where
funds available for that purpose under the
Supplemental Deed; or
(ii) any amount due in respect of interest pursuant
to clause 6 where funds are available for that
purpose under the Supplemental Deed,
( in the manner contemplated by this agreement, in each
case within 10 Business Days of the due date for
payment of such amount;
(b) (breach of undertaking) the Issuer Trustee alters, or
the Global Trust Manager directs it to alter, the
priority of payments under the Transaction Documents
without the consent of the Redraw Facility Provider
or breaches any of its undertakings under the
Transaction Documents which affect its ability to
perform its obligations thereunder and that breach
has a Material Adverse Effect in respect of the
Redraw Facility Provider;
(c) (Event of Default) an Event of Default occurs in
respect of the Trust and the Security Trustee (acting
on the instructions of the Secured Creditors)
appoints a Receiver to the Assets of the Trust or is
directed to sell or otherwise realise the Assets of
the Trust in accordance with the Master Security
Trust Deed and the Deed of Charge; or
(d) (Insolvency Event) an Insolvency Event occurs in
respect of the Issuer Trustee in its capacity as
trustee of the Trust and the Issuer Trustee is not
replaced (by either the Global Trust Manager or a
replacement trustee) in accordance with the Master
Trust Deed within 30 days of such Insolvency Event.
Consequences
15.2 If a Redraw Event of Default occurs, then the Redraw
Facility Provider may:
(a) declare at any time that the Redraw Principal
Outstanding, interest on the Redraw Principal
Outstanding, and all other amounts actually or
contingently payable under this agreement are
immediately due and payable; and/or
17
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(b) terminate the Redraw Facility Provider's obligations
in respect of the Redraw Facility.
The Redraw Facility Provider may do either or both of
these things with immediate effect.
16 Notices
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Notice
16.1 A notice, approval, consent or other communication in
connection with this agreement:
(a) may be given by an Authorised Person of the relevant
party;
(b) must be in writing; and
(c) must be left at the address of the addressee or sent
by prepaid ordinary post to the address of the
addressee or sent by facsimile to the facsimile
number of the addressee, or sent by e-mail to the
e-mail address of the addressee specified below (or
to such other details as are notified by a party to
each other party on or after the date of execution of
this agreement):
Issuer Trustee:
Address: ▇▇▇▇▇ ▇
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
Attention: Manager, Securitisation
E-mail: as notified from time to
time
Global Trust Manager:
Address: ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
Attention: Manager, Group Funding
E-mail: as notified from time to time
Redraw Facility Provider:
Address: ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
Attention: Director Securitisation
E-mail: as notified from time to time
18
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When effective
16.2 Unless a later time is specified in it, a notice,
approval, consent or other communication takes effect from
the time it is received.
Secured receipt
16.3 A notice, request, certificate, demand, consent or other
communication under this agreement is deemed to have been
received:
(a) where delivered in person, upon receipt;
(b) where sent by post, on the third (or seventh, if
outside Australia) day after posting;
(c) where sent by facsimile, on production by the
dispatching facsimile machine of a transmission
report which indicates that the facsimile was sent in
its entirety to the facsimile number of the
recipient; and
(d) in the case of an e-mail, on receipt by the sender of
an e-mail from the recipient stating that the e-mail
was delivered in its entirety and the contents and
attachments of the e-mail have been received.
However, if the time of deemed receipt of any notice is
not before 4.00pm local time on a Business Day at the
address of the recipient it is deemed to have been
received at the commencement of business on the next
Business Day.
17 Security Interests and assignment
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Other than as contemplated by the Transaction Documents,
the Issuer Trustee may not, without the consent of the
Redraw Facility Provider, create or allow to exist a
Security Interest over, or an interest in, this agreement
or assign or otherwise dispose of or deal with its rights
under this agreement. The Redraw Facility Provider at any
time may do any of those things.
18 Miscellaneous
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Certificate
18.1 A certificate signed by the Redraw Facility Provider about
a matter (including, without limitation, the Interest Rate
in respect of a Redraw Drawing) or about a sum payable to
the Redraw Facility Provider in connection with this
agreement is sufficient evidence of the matter or sum
stated in the certificate unless the matter or sum is
proved to be false.
Exercise of rights
18.2 A party may exercise a right, power or remedy at its
discretion, and separately or concurrently with another
right, power or remedy. A single or partial exercise of a
right, power or remedy by the party does not prevent a
further exercise of that or an exercise of any other
right,
19
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power or remedy. Failure by the party to exercise or delay
in exercising a right, power or remedy does not prevent
its exercise. The party is not liable for any loss caused
by the exercise or attempted exercise of, failure to
exercise, or delay in exercising, the right, power or
remedy.
Waiver and variation
18.3 A provision of, or a right created under, this agreement
may not be waived or varied except in writing signed by
the party or parties to be bound.
Supervening legislation
18.4 Any present or future legislation which operates to vary
the obligations of the Issuer Trustee in connection with
this agreement with the result that the Redraw Facility
Provider's rights, powers or remedies are adversely
affected (including, without limitation, by way of delay
or postponement) is excluded except to the extent that its
exclusion is prohibited or rendered ineffective by law.
Approvals and consent
18.5 The Redraw Facility Provider may give (conditionally or
unconditionally) or withhold its approval or consent in
its absolute discretion unless this agreement expressly
provides otherwise.
Remedies cumulative
18.6 The rights, powers and remedies provided in this agreement
are cumulative with, and not exclusive of, the rights,
powers or remedies provided by law independently of this
agreement.
Indemnities
18.7 Each indemnity in this agreement is a continuing
obligation, separate and independent from the other
obligations of the Issuer Trustee and survives termination
of this agreement. It is not necessary for the Redraw
Facility Provider to incur expense or make payment before
enforcing a right of indemnity conferred by this
agreement.
Time of the essence
18.8 Time is of the essence of this agreement in respect of an
obligation of the Issuer Trustee to pay money.
Further assurances
18.9 At the Redraw Facility Provider's request the Issuer
Trustee must, at the expense of the Trust:
(a) execute and use its best endeavours to cause its
successors to execute documents and do everything
else necessary or appropriate to bind the Issuer
Trustee and its successors under this agreement; and
(b) use its best endeavours to cause relevant third
parties to do likewise to bind every person intended
to be bound under this agreement.
20
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19 Liability of Issuer Trustee and limited recourse
------------------------------------------------------------------------------
Clause 2 of the Definitions Schedule applies to this
agreement as if set out in full in it (with any
consequential changes as are necessary to give effect to
that clause in this agreement).
20 Governing law, jurisdiction and service of process
------------------------------------------------------------------------------
Governing law
20.1 This agreement is governed by the law in force in the
Australian Capital Territory.
Submission to jurisdiction
20.2 Each party irrevocably and unconditionally submits to the
non-exclusive jurisdiction of the courts of the Australian
Capital Territory and courts of appeal from them. Each
party waives any right it has to object to an action being
brought in those courts including, without limitation, by
claiming that the action has been brought in an
inconvenient forum or that those courts do not have
jurisdiction.
Address for service
20.3 Without preventing any other mode of service, any document
in an action (including, without limitation, any writ of
summons or other originating process or any third or other
party notice) may be served on any party by being
delivered to or left for that party at its address for
service of notices under clause 16.
21 Counterparts
------------------------------------------------------------------------------
This agreement may consist of a number of counterparts
and the counterparts taken together constitute one and
the same instrument.
22 Costs, Charges, Expenses and Indemnities
------------------------------------------------------------------------------
22.1 The Issuer Trustee will indemnify the Redraw Facility
Provider on each Payment Date following a demand from the
Redraw Facility Provider for:
(a) the costs, charges and expenses of the Redraw
Facility Provider in connection with any consent,
approval, exercise or non-exercise of rights
(including, without limitation, in connection with
the contemplated or actual enforcement or
preservation of any rights under any Transaction
Document), waiver, variation, release or discharge in
relation to any Transaction Document;
(b) Taxes (excluding any Taxes on the overall net income
of the Redraw Facility Provider) and fees (including,
without limitation, registration fees) and fines and
penalties in respect of these (except where any such
amount is incurred as a result of an act or omission
of the Redraw Facility Provider), which may be
payable or determined to be payable in connection
with any
21
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Transaction Document or a payment or receipt or any
other transaction contemplated by any Transaction
Document; and
(c) costs, charges and expenses of the Redraw Facility
Provider in connection with any enquiry by any
authority involving the Issuer Trustee, any Secured
Creditor or any of their Related Entities.
22.2 The Issuer Trustee will indemnify the Redraw Facility
Provider against any liability or loss arising from, and
any costs, charges and expenses incurred in connection
with:
(a) an Event of Default in respect of the Trust or any
Redraw Event of Default;
(b) a proposed Redraw Drawing not being made available in
accordance with the relevant Drawdown Notice for any
reason;
(c) any payment required to be made under any Transaction
Document not being made on its due date in accordance
with that document;
(d) the Redraw Facility Provider acting in connection
with a Transaction Document in good faith on
facsimile or telephone instructions purporting to
originate from the offices of the Issuer Trustee
including, without limitation, liability, loss,
costs, charges or expenses on account of funds
borrowed, contracted for or used to fund any amount
payable under the Transaction Document and including,
in each case (but without limitation), legal costs
and expenses on a full indemnity basis or solicitor
and own client basis, whichever is the higher; or
(e) a breach by the Issuer Trustee of any representation
and warranty contained in clause 13.1 of this
agreement or of any of its obligations under this
agreement.
22.3 The Issuer Trustee agrees to pay to the Redraw Facility
Provider an amount equal to any liability, loss, cost,
charge or expense of the kind referred to in clause 22.2
suffered or incurred by any employee, officer, agent or
contractor of the Redraw Facility Provider.
22.4 The obligation of the Issuer Trustee under this clause
shall:
(a) be payable solely to the extent that funds are
available for that purpose under the Supplemental
Deed; and
(b) survive any termination of this agreement.
22.5 The indemnities in clauses 22.1, 22.2 and 22.3 do not
extend to any liability, loss, cost, charge or expense
that is finally and judicially determined to result from
any negligence, wilful default or breach of law by the
Redraw Facility Provider.
22
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22.6 If the Redraw Facility Provider receives written notice of
any act, matter or thing which may give rise to a
liability, loss, cost, charge or expense in relation to
which the Issuer Trustee would be required to indemnify it
under clauses 22.1, 22.2 or 22.3, the Redraw Facility
Provider will notify the Issuer Trustee of that act,
matter or thing giving such details as it is practicable
to give as soon as it is reasonably practicable and in any
event within 5 Business Days of it coming to its
attention, provided that failure to do so will not result
in any loss or reduction in the indemnity contained in
clauses 22.1, 22.2 or 22.3 unless the Issuer Trustee has
been prejudiced in any material respect by such failure.
23 Redraw Facility Provider Termination Date
------------------------------------------------------------------------------
23.1 Subject to clause 23.2, the Global Trust Manager may by
giving not less than 5 Business Days notice to the Redraw
Facility Provider and the Issuer Trustee, declare a
Payment Date as the date upon which:
(a) the Redraw Facility Provider will be replaced by a
substitute Redraw Facility Provider; and
(b) the Redraw Facility will terminate.
23.2 On or before the declaration of the Payment Date by the
Global Trust Manager in accordance with clause 23.1, the
Global Trust Manager must obtain written confirmation from
the Current Rating Agencies that the termination of the
Redraw Facility and the appointment of the proposed
substitute Redraw Facility Provider on that Payment Date
will not result in an Adverse Rating Effect.
23.3 The Redraw Facility Provider Termination Date will be the
later of:
(a) the Payment Date declared in accordance with clause
23.1; and
(b) the date upon which the Issuer Trustee has paid or
repaid to the Redraw Facility Provider all Redraw
Drawings outstanding on the Payment Date declared in
accordance with clause 23.1 together with all accrued
but unpaid interest and all other money outstanding
under this agreement.
EXECUTED as an agreement.
23
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Schedule 1 Drawdown Notice (clause 4)
------------------------------------------------------------------------------
To: National Australia Bank Limited
[Date]
Dear Sirs/Madams
Redraw Facility Agreement between Perpetual Trustee
Company Limited, National Global MBS Manager Pty Ltd and
National Australia Bank Limited dated [#] ("Redraw
Facility Agreement")
The Issuer Trustee gives notice under clause 4.1 of the
Redraw Facility Agreement that it wants to use the Redraw
Facility granted in respect of the National RMBS Trust
2004-1 ("Trust").
The particulars of the Redraw Drawing required to be given
under clause 4.3 of the Redraw Facility Agreement are as
follows:
(a) the proposed Drawdown Date is [ ];
(b) the Redraw Drawing is to be made in respect of the
Trust;
(c) the amount of the proposed Redraw Drawing is
$[ ] and its method of calculation is as follows:
[ ]; and
(d) the proposed Redraw Drawing is to be paid into the
Collections Account.
A term which has a defined meaning in (or is incorporated
in) the Redraw Facility Agreement has the same meaning as
in the Redraw Facility Agreement when used in this
Drawdown Notice.
Yours faithfully
....................................
[name of person]
being an Authorised Person of
Perpetual Trustee Company Limited
[name of person]
being an Authorised Person of
National Global MBS Manager Pty Limited
24
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Execution page
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SIGNED by ▇▇▇▇ ▇▇▇▇▇▇▇ )
............................... )
as attorney for PERPETUAL )
TRUSTEE COMPANY LIMITED under )
power of attorney dated )
28 September 2004..............)
)
in the presence of: )
)
/s/ ▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇ ) /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
............................... ) ..............................
Signature of witness ) By executing this agreement
) the attorney states that
▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇ ) the attorney has received
............................... ) no notice of revocation of
Name of witness (block ) the power of attorney
letters)
SIGNED by )4
)
▇▇▇▇▇▇▇ ▇▇▇▇▇ )
............................... )
as attorney for NATIONAL )
GLOBAL MBS MANAGER PTY LTD )
under power of attorney dated )
21 September 2004 in the )
presence of: )
) /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
) ................................
) By executing this agreement
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ) the attorney states that
............................... ) the attorney has received
Signature of witness ) no notice of revocation of
) the power of attorney
▇▇▇▇▇ ▇▇▇▇▇▇▇ )
............................... )
Name of witness (block
letters)
SIGNED by ▇▇▇▇▇▇▇ ▇▇▇▇▇ )
............................... )
as attorney for NATIONAL )
AUSTRALIA BANK LIMITED under )
power of attorney dated 13 )
September 2004 in the )
presence of: )
) /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
) ....................................
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ) By executing this agreement
............................... ) the attorney states that
Signature of witness ) the attorney has received
) no notice of revocation of
▇▇▇▇▇ ▇▇▇▇▇▇▇ ) the power of attorney
............................... )
Name of witness (block
letters)
1
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Contents National RMBS Trust 2004-1
Redraw Facility Agreement
--------------------------------------------------------------------------------------
1 Interpretation 1
2 The Redraw Facility 3
3 Conditions precedent 5
4 Redraw Drawings 6
5 Interest Periods 7
6 Interest 7
7 Repayment of Redraw Drawings 8
8 Availability Fee 9
9 Cancellation or reduction of the Redraw Facility 9
10 Changed costs event 10
11 Illegality 11
12 Payments and taxes 12
13 Representations and warranties 12
14 General undertakings by Issuer Trustee 15
15 Redraw Events of Default 16
16 Notices 17
17 Security Interests and assignment 18
18 Miscellaneous 18
19 Liability of Issuer Trustee and limited recourse 20
20 Governing law, jurisdiction and service of process 20
21 Counterparts 20
2
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22 Costs, Charges, Expenses and Indemnities 20
23 Redraw Facility Provider Termination Date 22
Schedule 1 Drawdown Notice (clause 4) 23
-------------------------------
Dated 28 September 2004
National RMBS Trust 2004-1
Redraw Facility Agreement
Perpetual Trustee Company Limited
("Issuer Trustee")
National Global MBS Manager Pty Ltd
("Global Trust Manager")
National Australia Bank Limited
("Redraw Facility Provider")
Mallesons ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Solicitors
Governor ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Telephone (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
Facsimile (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
DX ▇▇▇ ▇▇▇▇▇▇
Ref: EN/SRF