Exhibit 10.2
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National RMBS Trust 200[ ]-[ ]
Liquidity Facility Agreement
Date: [ ]
Parties: [NAME AND ABN NUMBER OF ISSUER TRUSTEE] (ABN )
in its capacity as trustee of the Trust and
having its registered office at [address of
Issuer Trustee] ("Issuer Trustee")
NATIONAL GLOBAL MBS MANAGER PTY LTD (ABN 36 102
668 226) having an office at ▇▇▇▇▇ ▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
("Global Trust Manager")
[NAME AND ABN OF LIQUIDITY FACILITY PROVIDER]
having its registered office at [address of
Liquidity Facility Provider] ("Liquidity
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 Liquidity Amount means on any Determination Date
an amount equal to:
(a) the Liquidity Limit on that Determination Date;
less
(b) the Liquidity Principal Outstanding on that
Determination Date.
Availability Period means the period commencing on the
Closing Date and ending on the Liquidity 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 Liquidity
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 Liquidity
Facility Provider); or
(c) the imposition by any regulatory authority in
respect of the Liquidity 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,
whether such event results in an increase or a decrease in
the relevant amount or cost referred to in clause 10.1.
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Definitions Schedule means the deed entitled "National
RMBS Trusts Definitions Schedule" dated [ ] between the
parties named in Schedule 1 to that deed (as amended from
time to time).
Drawdown Date means the date on which a drawing is or is
to be made under the Liquidity 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.
Liquidity Drawing means a drawing made under clause 2.4 of
this agreement.
Liquidity Event of Default has the meaning given to it in
clause 15.1.
Liquidity Facility means the facility granted pursuant to
this agreement.
Liquidity Facility Provider Termination Date means the
date determined under clause 23.3.
Liquidity Facility Termination Date means the earliest of:
(a) the date which is one month after the date upon
which all Notes have been fully and finally
redeemed in full in accordance with the
Transaction Documents in respect of the Trust,
and the Global Trust Manager has notified the
Issuer Trustee that it does not intend that any
further Notes will be issued in respect of the
Trust;
(b) the date upon which the Liquidity Facility
Provider makes a determination under clause 11;
(c) the date upon which the Liquidity Limit is
cancelled or reduced to zero under clause 9; and
(d) the date upon which the Liquidity Facility
Provider terminates the Liquidity Facility under
clause 15.2.
Liquidity Interest Period means each period determined in
accordance with clause 5.
Liquidity Interest Rate means, in respect of a Liquidity
Drawing, the interest rate calculated in accordance with
clause 6.2.
Liquidity Limit means, at any time, the lesser of:
(a) [ ]% of the Total Invested Amount of all Notes
as at the previous Determination Date;
(b) the Performing Mortgage Loans Amount on the last
day of the previous Collection Period; and
(c) the amount (if any) to which the Liquidity Limit
has been reduced at that time in accordance with
clause 9.2.
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Liquidity Principal Outstanding means, on a Determination
Date, an amount equal to:
(a) the aggregate of all Liquidity Drawings
previously made or to be made on the immediately
following Payment Date; less
(b) any repayments or prepayments of all such
Liquidity Drawings made by the Issuer Trustee on
or before the immediately following Payment
Date.
Liquidity Shortfall has the meaning given to that term in
the relevant Supplemental Deed.
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.
Required Liquidity Rating means the short term rating (if
any) of: [insert applicable short term ratings for
applicable ratings agencies]
Supplemental Deed means the deed entitled "National RMBS
Trust 200[ ]-[ ] Supplemental Deed" dated on or about the
date of this agreement between, amongst others, the Issuer
Trustee and the Global Trust Manager.
Trust means the National RMBS Trust 200[ ]-[ ].
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 references to "this deed" being construed as
references 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 with each reference to "this
deed" being construed as a reference to "this agreement".
Any obligation imposed on the Issuer Trustee under this
agreement is several only.
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Limitation
1.4 The rights and obligations of the parties under this
agreement relate only to the Trust. The Liquidity 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 Liquidity Facility
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Liquidity Facility
2.1 The Liquidity Facility Provider grants to the Issuer
Trustee a loan facility in [Australian dollars] in respect
of the Trust in an amount equal to the Liquidity Limit. If
the Issuer Trustee wants to use the Liquidity Facility,
then it may do so by one or more requests made in
accordance with clause 4. Subject to this agreement, the
Liquidity Facility Provider agrees to provide financial
accommodation requested by the Issuer Trustee under this
agreement.
Purpose
2.2 The Liquidity Facility is only available to be drawn to
meet any Liquidity Shortfall in relation to the Trust.
Liquidity Shortfall
2.3 The Liquidity Limit will be available only if and to the
extent that there is a Liquidity 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 Liquidity Shortfall on that Determination Date, the
Global Trust Manager must arrange, by giving a direction
to the Issuer Trustee, for a drawing to be made under the
Liquidity Facility on the Payment Date immediately
following that Determination Date in accordance with this
agreement and equal to the lesser of:
(a) the Liquidity Shortfall on that Determination
Date; and
(b) the Available Liquidity Amount on that
Determination Date.
Limit
2.5 Despite anything in this agreement, the Liquidity Facility
Provider need not provide financial accommodation under
this agreement if to do so would result in the Liquidity
Principal Outstanding exceeding the Liquidity Limit.
Termination
2.6 The Liquidity Facility will terminate on the earlier of
the Liquidity Facility Termination Date and the Liquidity
Facility Provider Termination Date.
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3 Conditions precedent
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First Drawdown Notice
3.1 The Issuer Trustee must not deliver the first Drawdown
Notice until the Issuer Trustee has received written
notice from the Liquidity Facility Provider that the
Liquidity 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 Liquidity 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
Liquidity Facility Provider from the Issuer
Trustee's solicitors in a form and substance
satisfactory to the Liquidity Facility Provider.
Liquidity Drawings in respect of a Trust
3.2 The Liquidity 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 Liquidity Event of Default) no Liquidity
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 Issuer Trustee and the Global
Trust Manager in this agreement 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 Liquidity
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 Liquidity 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 Liquidity Facility
Provider);
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(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.
Certification
3.3 Anything required to be certified under clause 3.1 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 Liquidity Facility Provider
3.4 The conditions precedent set out in this clause 3 are for
the benefit of the Liquidity Facility Provider and any of
them may be waived by the Liquidity Facility Provider in
its absolute discretion.
4 Liquidity Drawings
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Use of Liquidity Facility
4.1 If the Issuer Trustee on the direction of the Global Trust
Manager wants to use the Liquidity Facility to make a
Liquidity Drawing, it must do so only in accordance with
clause 2.4 and it must give a notice to the Liquidity
Facility Provider meeting the requirements of clause 4.3
("Drawdown Notice").
Timing
4.2 Each Liquidity Drawing must be drawn down on a Payment
Date in respect of the Trust. Each Liquidity 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;
(c) specify the Drawdown Date, which must be a day
which complies with clause 4.2;
(d) specify the amount of the proposed Liquidity
Drawing and its method of calculation; and
(e) be given no later than [ ] on the day which is 2
Business Days prior to the relevant Drawdown
Date (or such other period as may be agreed
between the Issuer Trustee, the Global Trust
Manager and the Liquidity Facility Provider).
Effective
4.4 A Drawdown Notice is effective on actual receipt in
legible form by the Liquidity Facility Provider and is
irrevocable.
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Agreement to make Liquidity Drawing
4.5 Subject to this agreement, the Liquidity Facility Provider
agrees to deposit in the Collections Account the amount of
any Liquidity Drawing in immediately available funds by [
] Melbourne time on the relevant Payment Date.
5 Liquidity Interest Periods
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Initial interest periods
5.1 The first Liquidity Interest Period in respect of a
Liquidity Drawing commences on (and includes) its Drawdown
Date and ends on (but excludes) the next Payment Date.
Each subsequent Liquidity 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 Liquidity Interest Period in respect of a Liquidity
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 Liquidity Facility
Provider interest on the daily balance of each Liquidity
Drawing from and including its Drawdown Date until the
Liquidity Drawing is repaid in full. On each Payment Date,
the Issuer Trustee will pay to the Liquidity Facility
Provider accrued interest on each Liquidity 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 Liquidity 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 in arrears on each Payment Date in the
manner contemplated by clause 6.1. The rate of interest
paid to the Liquidity Facility Provider in respect of a
Liquidity Interest Period is [Insert provisions re
calculation of Liquidity Interest Rate] ("Liquidity
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
Liquidity Drawing and any other interest due and
payable under clause 6.3(b) up to the close of
the Liquidity 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 Liquidity
Drawing having successive Liquidity Interest
Periods calculated in accordance with clause 5.
The first Liquidity Interest Period commences on
the day when the outstanding amount becomes due
for payment and each subsequent Liquidity
Interest Period commences on the day when the
preceding Liquidity 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 Liquidity 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 Liquidity Drawings
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Repayment of Liquidity Drawings
7.1 Subject to clause 7.3, on each Payment Date, the Issuer
Trustee will repay so much of the Liquidity Principal
Outstanding under all Liquidity Drawings as there are
funds available for this purpose in accordance with clause
14 of the Supplemental Deed. If, on any Payment Date, all
amounts due in accordance with this clause 7.1 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 in accordance
with the Supplemental Deed until such amounts are paid or
repaid in full.
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 Liquidity
Facility Termination Date, the Issuer Trustee must repay:
(a) the Liquidity 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.
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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 Liquidity Facility Termination Date, the
Issuer Trustee will repay so much of such 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.
8 Availability Fee
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8.1 The Issuer Trustee will pay to the Liquidity Facility
Provider an availability fee of [ ]% per annum on the then
un-utilised portion of the Liquidity Limit. The fee will
be: [insert provisions re calculation and payment of
Availability Fee]
8.2 The availability fee payable under clause 8.1 may be
varied from time to time by the Global Trust Manager and
the Liquidity 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 Liquidity Facility
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Cancellation
9.1 The Issuer Trustee may on the direction of the Global
Trust Manager cancel the Liquidity Facility by written
notice to the Liquidity Facility Provider if each Current
Rating Agency has confirmed that the cancellation of the
Liquidity Facility will not have an Adverse Rating Effect.
Reduction of Liquidity Limit
9.2 The Issuer Trustee may on the direction of the Global
Trust Manager reduce the Liquidity Limit in whole or in
part by written notice to the Liquidity Facility Provider
if each Current Rating Agency has confirmed that the
reduction of the Liquidity Limit will not have an Adverse
Rating Effect.
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 Liquidity Facility
Provider (or such other period agreed between the Issuer
Trustee, the Global Trust Manager and the Liquidity
Facility Provider).
Ratings downgrade
9.4 If, on a Determination Date during the Availability
Period, the Liquidity Facility Provider does not have the
Required Liquidity Rating from each Current Rating Agency,
the Liquidity Facility Provider must within 30 Business
Days or such longer period as may be agreed by each
Current Rating Agency:
(a) use its reasonable endeavours to procure another
person with the Required Liquidity Rating to
assume its obligations under
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this agreement, notice of which must be given to
each Current Rating Agency; or
(b) take such other steps as are agreed with each
Current Rating Agency to ensure that there is no
Adverse Rating Effect.
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 Liquidity Facility Provider determines that:
(a) there is any direct or indirect change in the
cost to the Liquidity 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 Liquidity
Facility Provider in the effective return to the
Liquidity Facility Provider in connection with
financial accommodation provided or to be
provided under this agreement (including,
without limitation, the return on the Liquidity
Facility Provider's overall capital which could
have been achieved but for the occurrence of the
Changed Costs Event); or
(c) the Liquidity 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 Liquidity
Facility Provider on the next Payment Date the additional
amount which the Liquidity Facility Provider certifies is
necessary to compensate the Liquidity 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 Liquidity Facility
Provider the proportion of it which the Liquidity Facility
Provider determines to be fairly attributable to the
financial accommodation made available under this
agreement.
Certificate
10.3 The Liquidity 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 Liquidity Facility Provider to determine the new
amount payable under clause 10.1. Any such certificate
signed by the Liquidity 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 Liquidity
Facility Provider may use averaging and attribution
methods
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commonly used by financiers or any other reasonable
averaging or attribution method.
Minimisation
10.4 If the Liquidity Facility Provider is to receive any
additional payment under clause 10.1, the Liquidity
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 Liquidity 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 Liquidity Facility
Provider determines that it is or has become apparent that
it will become contrary to that official directive,
impossible or illegal for the Liquidity 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 funds
available under clause 14 of the Supplemental Deed to do
so, prepay so much of the Liquidity Principal Outstanding
as the Liquidity 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 Liquidity 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
Liquidity Facility Provider under this agreement not later
than [ ] local time in the place of payment on the due
date in immediately available funds to the account of the
Liquidity Facility Provider at the bank which the
Liquidity 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
Liquidity 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;
(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) (creation of Trust) the Trust has been validly
created;
(i) (appointment of Issuer Trustee) it has been
validly appointed as the trustee of the Trust;
(j) (sole trustee) it is the sole trustee of the
Trust;
(k) (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;
(l) (no removal) as far as it is aware, there are no
proceedings to remove it as trustee of the
Trust;
(m) (vesting date) the vesting date has not occurred
in respect of the Trust; and
(n) (no Liquidity Event of Default) to its knowledge
no Liquidity Event of Default or event which
with the giving of notice, lapse of time or
other applicable condition would become an Event
of Default has occurred which has not been
waived or remedied in accordance with this
agreement.
13.2 The Global Trust Manager represents and warrants to the
Liquidity 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
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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 Liquidity Event of Default) to its knowledge
no Liquidity Event of Default or event which
with the giving of notice, lapse of time or
other applicable condition would become a
Liquidity 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
it is able to exercise all its powers and
remedies and perform all its obligations under
this agreement and any other arrangements
15
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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
Liquidity Facility Provider (such consent not to
be unreasonably withheld or delayed); and
(e) (Event of Default) notify the Liquidity Facility
Provider as soon as practicable after becoming
aware of an Event of Default or a Liquidity
Event of Default.
14.2 The Global Trust Manager undertakes to:
(a) (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;
(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
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 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;
(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
Liquidity Facility Provider (such consent not to
be unreasonably withheld or delayed); and
(e) (Event of Default) notify the Liquidity Facility
Provider as soon as practicable after becoming
aware of an Event of Default or a Liquidity
Event of Default.
16
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15 Liquidity Events of Default
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Liquidity Events of Default
15.1 A Liquidity Event of Default occurs if:
(a) (failure to pay) the Issuer Trustee fails to
pay:
(i) any amount owing under this agreement
where funds are available for that
purpose under the Supplemental Deed;
or
(ii) without limiting paragraph (i) above,
any amount due in respect of interest
pursuant to clause 6.1 where funds are
available for that purpose under the
Supplemental Deed,
in the manner contemplated by this agreement, in
each case within 5 Business Days of the due date
for payment of such amount;
(b) (breach of undertaking) the Issuer Trustee
alters the priority of payments under the
Transaction Documents without the consent of the
Liquidity 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
Liquidity Facility Provider;
(c) (Event of Default) an Event of Default occurs in
respect of the Supplemental Deed or the Master
Security Trust Deed 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.
[Insert additional Liquidity Events of Default
specific to Series]
Consequences
15.2 If a Liquidity Event of Default occurs, then the Liquidity
Facility Provider may:
(a) declare at any time that the Liquidity Principal
Outstanding, interest on the Liquidity Principal
Outstanding, and all other amounts actually or
contingently payable under this agreement are
immediately due and payable; and/or
(b) terminate the Liquidity Facility Provider's
obligations in respect of the Liquidity
Facility.
17
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The Liquidity 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: [ ]
E-mail: [ ]
Global Trust Manager:
Address: ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: [(▇▇▇) ▇▇▇▇ ▇▇▇▇]
Attention: [Manager, Group Funding]
E-mail: [ ]
Liquidity Facility Provider:
Address: [ ]
Facsimile: [ ]
Attention: [ ]
E-mail: [ ]
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;
18
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(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
Liquidity 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 Liquidity 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 Liquidity Facility Provider
about a matter (including, without limitation, the
Interest Rate in respect of a Liquidity Drawing) or about
a sum payable to the Liquidity 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, 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.
19
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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 Liquidity 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 Liquidity 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 Liquidity 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 Liquidity 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.
19 Liability of Issuer Trustee and limited recourse
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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
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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
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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 Liquidity Facility
Provider on each Payment Date following a demand from the
Liquidity Facility Provider for:
(a) the costs, charges and expenses of the Liquidity
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 Liquidity 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 Liquidity Facility Provider), which may be
payable or determined to be payable in
connection with any Transaction Document or a
payment or receipt or any other transaction
contemplated by any Transaction Document; and
(c) costs, charges and expenses of the Liquidity
Facility Provider in connection with any enquiry
by any authority involving the Issuer Trustee,
any Secured Creditor or any of their Related
Entities.
21
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22.2 The Issuer Trustee will indemnify the Liquidity 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 Liquidity Event of Default;
(b) a proposed Liquidity 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 Liquidity 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 of this agreement or of any of its
obligations under this agreement.
22.3 The Issuer Trustee agrees to pay to the Liquidity 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 Liquidity 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
Liquidity Facility Provider.
If the Liquidity 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 Liquidity 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
21
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the Issuer Trustee has been prejudiced in any material
respect by such failure.
23 Liquidity 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
Liquidity Facility Provider and the Issuer Trustee,
declare a Payment Date as the date upon which:
(a) the Liquidity Facility Provider will be replaced
by a substitute Liquidity Facility Provider; and
(b) the Liquidity 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
each Current Rating Agency that the termination of the
Liquidity Facility and the appointment of the proposed
substitute Liquidity Facility Provider on that Payment
Date will not result in an Adverse Rating Effect.
23.3 The Liquidity 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 Liquidity Facility Provider all
Liquidity 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: [name of Liquidity Facility Provider]
[Date]
Dear Sirs/Madams
Liquidity Facility Agreement between [Name of
Issuer Trustee], National Global MBS Manager Pty
Ltd and [Name of Liquidity Facility Provider]
dated [#] ("Liquidity Facility Agreement")
The Issuer Trustee gives notice under clause 4.1
of the Liquidity Facility Agreement that it
wants to use the Liquidity Facility granted in
respect of the National RMBS Trust 200[ ]-[ ]1-1
("Trust").
The particulars of the Liquidity Drawing
required to be given under clause 4.3 of the
Liquidity Facility Agreement are as follows:
(a) the proposed Drawdown Date is [ ];
(b) the Liquidity Drawing is to be made in
respect of the Trust;
(c) the amount of the proposed Liquidity
Drawing is $[ ] and its method of
calculation is as follows:
[ ]; and
(d) the proposed Liquidity Drawing is to
be paid into the Collections Account.
A term which has a defined meaning in (or is
incorporated in) the Liquidity Facility
Agreement has the same meaning as in the
Liquidity Facility Agreement when used in this
Drawdown Notice.
Yours faithfully
..........................................
[name of person]
being an Authorised Person of
[Name of Issuer Trustee]
24
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Execution page
------------------------------------------------------------------------------
SIGNED by [ ] )
as attorney for [NAME OF ISSUER )
TRUSTEE] under )
power of attorney dated )
[...................................] )
)
in the presence of: )
)
............................. )
Signature of witness )
)
......................................... )
Name of witness (block letters) )
) .............................
......................................... ) By executing this agreement
Address of witness ) the attorney states that the
) attorney has received no
........................................ ) notice of revocation of the
Occupation of witness ) power of attorney
SIGNED by [ ] on behalf of )
NATIONAL GLOBAL MBS )
MANAGER PTY LTD in the presence of: )
)
..............................................)
Signature of witness )
)
..............................................)
Name of witness (block letters) )
)
..............................................) .............................
Address of witness ) By executing this agreement
) the signatory ) states that
............................ ) the signatory has received no
Occupation of witness ) notice of revocation of the
) authority under which this
agreement is executed )
25
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SIGNED by [..............................] )
as attorney for [NAME OF LIQUIDITY FACILITY )
PROVIDER] under power of attorney dated )
)
in the presence of: )
)
...............................................)
Signature of witness )
)
...............................................)
Name of witness (block letters) )
)
...............................................) .............................
Address of witness ) By executing this agreement
) the attorney states that the
........................................... ) attorney has received no
Occupation of witness ) notice of revocation of the
) power of attorney
------------------------------------------------------------------------------
1
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Contents National RMBS Trust 200[ ]-[ ]
Liquidity Facility Agreement
------------------------------------------------------------------------------
1 Interpretation 1
2 The Liquidity Facility 4
3 Conditions precedent 5
4 Liquidity Drawings 6
5 Liquidity Interest Periods 7
6 Interest 7
7 Repayment of Liquidity Drawings 8
8 Availability Fee 9
9 Cancellation or reduction of the Liquidity Facility 9
10 Changed costs event 10
11 Illegality 11
12 Payments and taxes 11
13 Representations and warranties 12
14 General undertakings by Issuer Trustee 14
15 Liquidity Events of Default 16
16 Notices 17
17 Security Interests and assignment 18
18 Miscellaneous 18
19 Liability of Issuer Trustee and limited recourse 19
20 Governing law, jurisdiction and service of process 20
21 Counterparts 20
22 Costs, Charges, Expenses and Indemnities 20
23 Liquidity Facility Provider Termination Date 22
Schedule 1 Drawdown Notice (clause 4) 23
---------------------------------------------------
Dated
National RMBS Trust 200[ ]-[ ]
Liquidity Facility Agreement
[Name of Issuer Trustee]
("Issuer Trustee")
National Global MBS Manager Pty Ltd
("Global Trust Manager")
[Name of Liquidity Facility Provider]-
("Liquidity Facility Provider")
Mallesons ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Solicitors
Governor ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Telephone (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
Facsimile (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
DX ▇▇▇ ▇▇▇▇▇▇
Ref: AAV/SRF