Exhibit 10.13
Form of Top-up Funding Facility Agreement
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Perpetual Limited
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ME Portfolio Management Limited
TOP-UP FUNDING
FACILITY AGREEMENT FOR
THE ISSUE AND REPAYMENT OF NOTES -
SMHL GLOBAL FUND
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Top-up Funding Facility Agreement - SMHL Global Fund [ ]-[ ]
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TABLE OF CONTENTS
Clause Page
1 DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
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1.2 Interpretation 5
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1.3 Business Day 7
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1.4 Transaction Document 7
2 THE NOTES 7
2.1 Application for and Issue of Notes 7
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2.2 Acknowledgment of Indebtedness 7
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2.3 Obligations under Notes 7
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2.4 Ownership of Notes 8
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2.5 Register 8
3 TOP-UP LOAN 8
3.1 Purpose 8
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3.2 Suspension of the Facility 8
4 FUNDING PROCEDURES 8
4.1 Delivery of Funding Notice 8
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4.2 Requirements for a Funding Notice 9
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4.3 Copy of the Funding Notice 9
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4.4 Irrevocability of Funding Notice 9
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4.5 Notification of Funding Rate 9
5 LOAN FACILITY 9
5.1 Provision of Funding Portions 9
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5.2 Repayment 9
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5.3 Repayment of Outstanding Moneys 10
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5.4 Interest 10
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5.5 Order of Repayment 11
6 PAYMENTS 11
6.1 Manner of payments 11
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6.2 Payments on a Business Day 11
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6.3 Appropriation of payments 11
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6.4 Payments in gross 12
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6.5 Taxation deduction procedures 12
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6.6 Amounts payable on demand 12
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7 REPRESENTATIONS AND WARRANTIES 12
7.1 By the Issuer 12
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7.2 By the SF Manager 13
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7.3 Survival and repetition of representations and warranties 14
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7.4 Reliance by the Note Holder and OF Manager 14
8 UNDERTAKINGS 15
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8.1 Term of undertakings 15
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8.2 Compliance with Covenants 15
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8.3 Notify Events of Default 15
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8.4 Know your customer 15
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8.5 Compliance with Regulation AB 15
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8.6 Direction of claims by the SF Manager 21
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8.7 Direction of defence of claims 21
9 EVENTS OF DEFAULT 22
9.1 Effect of Event of Default 22
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9.2 Issuer to continue to perform 22
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9.3 Enforcement 22
10 INCREASED COSTS, ILLEGALITY AND YIELD PROTECTION 22
10.1 Increased costs 22
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10.2 Illegality 23
11 TRUSTEE LIMITATION OF LIABILITY PROTECTION 24
11.1 Limitation of Liability - Issuer 24
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11.2 Limitation of Liability - Note Holder 25
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11.3 Wilful Default of the Issuer and the Note Holder 26
12 INDEMNITIES 27
12.1 General indemnity 27
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12.2 Continuing indemnities and evidence of loss 27
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12.3 Funds available for indemnity 28
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12.4 Negligence, wilful default or breach of law 28
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12.5 Notification from Note Holder or OF Manager 28
13 TAX, COSTS AND EXPENSES 28
13.1 Tax 28
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13.2 Costs and expenses 29
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13.3 Goods and services tax 29
14 INTEREST ON OVERDUE AMOUNTS 30
14.1 Payment of interest 30
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14.2 Accrual of interest 30
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14.3 Rate of interest 30
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15 ASSIGNMENT 30
15.1 Assignment by Transaction Party 30
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15.2 Assignment by Note Holder and OF Manager 31
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15.3 Assist transfer or assignment 31
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15.4 Participation permitted 31
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15.5 Lending Office 31
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15.6 Disclosure 31
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15.7 No increase in costs 31
16 GENERAL 32
16.1 Confidential information 32
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16.2 Performance by Note Holder of obligations 32
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16.3 Transaction Party to bear cost 32
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16.4 Notices 32
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16.5 Governing law and jurisdiction 33
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16.6 Prohibition and enforceability 34
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16.7 Waivers 34
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16.8 Variation 34
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16.9 Cumulative rights 34
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16.10 Attorneys 34
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16.11 Binding Obligations 34
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16.12 Winding up of Securitisation Fund 35
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16.13 Termination clause 35
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16.14 Counterparts 35
SCHEDULE 1 - FUNDING NOTICE (CLAUSE 4.2) 36
SCHEDULE 2 - CONDITIONS 37
SCHEDULE 3 - REPORT ON ASSESSMENT OF COMPLIANCE WITH REGULATION AB
SERVICING CRITERIA 41
SCHEDULE 4 - SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF
COMPLIANCE 42
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DATE [ ]
PARTIES
PERPETUAL LIMITED ABN 86 ▇▇▇ ▇▇▇ ▇▇▇ of ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ in its capacity as trustee of the Securitisation Fund
(as hereinafter defined) (ISSUER)
PERPETUAL LIMITED ABN 86 ▇▇▇ ▇▇▇ ▇▇▇ of ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ in its capacity as trustee of the Origination Fund
(as hereinafter defined) (NOTE HOLDER)
ME PORTFOLIO MANAGEMENT LIMITED ABN 79 005 964 134 of ▇▇▇▇▇ ▇▇, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ in its capacity as manager of the
Securitisation Fund (SF MANAGER)
ME PORTFOLIO MANAGEMENT LIMITED ABN 79 005 964 134 of ▇▇▇▇▇ ▇▇, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ in its capacity as manager of the
Origination Fund (OF MANAGER)
RECITALS
A. The Issuer is the trustee, and the SF Manager is the manager,
of the Securitisation Fund.
B. The Note Holder is the trustee, and the OF Manager is the
manager, of the Origination Fund.
C. The SF Manager has requested the OF Manager to direct the Note
Holder to make available a loan facility to the Issuer under
which the Issuer will issue Notes to the Note Holder and the
Note Holder will purchase Notes from the Issuer.
D. The Note Holder and the OF Manager have agreed to make
available a facility on the terms and conditions of this
agreement and have agreed with the SF Manager and the Issuer
that the terms and conditions of the issue and repayment of
any such Notes are those contained in this agreement.
THE PARTIES AGREE
in consideration of, among other things, the mutual promises
contained in this agreement:
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1 DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this agreement, unless the context otherwise requires:
ATTORNEY means an attorney appointed under a Material Document;
BASE RATE means in respect of a Funding Portion and a Payment
Period:
(a) the rate percent per annum determined by the OF Manager by
taking the rates quoted on the page entitled "BBSW" on the
Reuters Monitor System
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at or about 10.10am (Melbourne time) on the Funding Date by
each Reference Bank (provided that at least 4 Reference Banks
are quoting) as being its mean buying and selling rate for a
bank accepted ▇▇▇▇ having a tenor equal to 90 days eliminating
one of the highest and one of the lowest mean rates, and then
calculating the average of the remaining mean rates and then
(if necessary) rounding up the resultant figure to four
decimal places; or
(b) if in respect of any Funding Date the Base Rate cannot be
determined because:
(1) less than 4 Reference Banks have quoted their relevant
rates; or
(2) the Payment Period does not equal a tenor in relation to
which at least 4 Reference Banks have quoted their
relevant rates,
on the page entitled "BBSW" on the Reuters Monitor System on
the Funding Date, the rate percent per annum calculated by the
OF Manager in accordance with paragraph (a) of this definition
but by taking the buying and selling rates otherwise quoted by
4 of the Reference Banks on application by the OF Manager, for
bank accepted Bills of the same tenor and a face value amount
of A$1,000,000 each; or
(c) if in respect of any Funding Date the Base Rate cannot be
determined in accordance with paragraphs (a) or (b) of this
definition, the rate percent per annum determined by the OF
Manager in good faith to be the rate most nearly approximating
the rate that would otherwise have been calculated by the OF
Manager in accordance with paragraph (a) of this definition
having regard to comparable indices then available in the then
current ▇▇▇▇ market;
▇▇▇▇ means a ▇▇▇▇ of exchange as defined in the Bills of Exchange
Act 1909 (Cth), but does not include a cheque;
BUSINESS DAY has the same meaning as in the Supplementary Bond
Terms;
CLASS A NOTE has the same meaning as in the Supplementary Bond
Terms;
CLASS B NOTE has the same meaning as in the Supplementary Bond
Terms;
COMMISSION has the same meaning as in the Supplementary Bond Terms;
CONDITIONS means the terms and conditions as set out in schedule 2;
DESIGNATED RATING AGENCY has the meaning given to it in the Master
Trust Deed;
DOLLARS, A$ and $ means the lawful currency of the Commonwealth of
Australia;
EVENT OF DEFAULT means an Event of Default as defined in the
Security Trust Deed;
EXCHANGE ACT has the same meaning as in the Supplementary Bond
Terms;
EXCLUDED TAX means any Tax imposed by any jurisdiction on the net
income of the Note Holder;
FACILITY means the top-up funding facility made available by the
Note Holder to the Issuer under this agreement (by purchase of
Notes);
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FUNDING DATE means the date on which a Note will be issued (as
stipulated in the Funding Notice) and the date on which a Funding
Portion is, or is to be, advanced or regarded as advanced to the
Issuer under this agreement;
FUNDING NOTICE means a notice given, or to be given, under clauses
4.1 and 4.2;
FUNDING PORTION means in relation to any Note, the principal amount
of that Note to be provided or outstanding at that time (as the case
may be);
FUNDING RATE means for any Payment Period the rate per cent per
annum which is the aggregate of the Base Rate for that Payment
Period and the Margin;
GOVERNMENTAL AGENCY means any government or any governmental,
semi-governmental, administrative, fiscal or judicial body,
department, commission, authority, tribunal, agency or entity;
GST has the same meaning as in the A New Tax System (Goods and
Services Tax) ▇▇▇ ▇▇▇▇;
INTEREST COLLECTIONS has the meaning given to it in the
Supplementary Bond Terms;
LENDING OFFICE means the office of the Note Holder set out on page 1
of this agreement or such other office as notified by the Note
Holder under this agreement;
LOAN has the meaning given to it under the Master Trust Deed;
LOAN REDRAW FACILITY has the meaning given to it under the
Supplementary Bond Terms;
MARGIN means that percentage notified by the OF Manager to the SF
Manager on or about the issue of a Note as the margin applicable to
that Note;
MASTER TRUST DEED means the Master Trust Deed dated 4 July 1994 made
between Perpetual Limited and ME Portfolio Management Limited and
providing for the establishment of a series of separate trusts known
collectively as the Superannuation Members' Home Loans Trusts, as
amended and restated from time to time;
MATERIAL DOCUMENTS means:
(a) this agreement (including each Note); and
(b) the Security Trust Deed; and
(c) the Supplementary Bond Terms;
MORTGAGE has the meaning given to it under the Master Trust Deed;
NOTE means a note issued under clause 2;
NOTE HOLDER means Perpetual Limited (in its capacity as trustee of
the Origination Fund) or any person entitled to be registered as a
Note Holder in accordance with this agreement;
OFFICER means:
(a) in relation to the Issuer and Note Holder, a director,
secretary or other person whose title contains the word or
words "manager" or "counsel" or "head" or a person performing
the functions of any of them; and
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(b) in relation to the SF Manager and OF Manager, a director or a
secretary, or a person notified to be an authorised officer of
the relevant party;
ORIGINATION FUND means Superannuation Members' Home Loans
Origination Fund No. 3;
OUTSTANDING MONEYS means all debts and monetary liabilities of the
Issuer to the Note Holder under or in relation to any Material
Document, irrespective of whether the debts or liabilities:
(a) are present or future;
(b) are actual, prospective, contingent or otherwise;
(c) are at any time ascertained or unascertained;
(d) are owed or incurred by or on account of the Issuer alone, or
severally or jointly with any other person;
(e) are owed to or incurred for the account of the Note Holder
alone, or severally or jointly with any other person;
(f) are owed or incurred as principal, interest, fees, charges,
taxes, duties or other imposts, damages (whether for breach of
contract or tort or incurred on any other ground), losses,
costs or expenses, or on any other account; or
(g) comprise any combination of the above;
OVERDUE RATE means on any date the rate percent per annum which is
the aggregate of 2% per annum and the Funding Rate;
PAYMENT DATE has the meaning given to it under the Supplementary
Bond Terms;
PAYMENT PERIOD means the period from and including the last relevant
Payment Date to but excluding the next relevant Payment Date except
that the first Payment Period will commence on the relevant Funding
Date and the last Payment Period will end on the Termination Date;
POWER means any right, power, authority, discretion or remedy
conferred on the Note Holder or OF Manager, or a Receiver or an
Attorney by any Transaction Document or any applicable law;
PRINCIPAL COLLECTIONS has the meaning given to it in the
Supplementary Bond Terms;
PRINCIPAL OUTSTANDING means at any time the aggregate principal
amount of all outstanding Funding Portions at that time;
REFERENCE BANK means any one of Commonwealth Bank of Australia,
Westpac Banking Corporation, National Australia Bank Limited and
Australia and New Zealand Banking Group Limited;
REGISTER means the register of Note Holders maintained by the
Issuer;
REGULATION AB has the meaning given to it in the Supplementary Bond
Terms;
SAME DAY FUNDS means bank cheque or other immediately available
funds;
SECURED CREDITORS has the meaning given to it in the Security Trust
Deed;
SECURITISATION FUND means the Securitisation Fund constituted under
the Master Trust Deed known as SMHL Global Fund [ ]-[ ];
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SECURITY TRUST DEED means the deed in respect of the Securitisation
Fund between the Issuer, the SF Manager and Perpetual Trustee
Company Limited ABN 42 000 001 007 (as security trustee) and The
Bank of New York (as note trustee);
SUPPLEMENTARY BOND TERMS means the Supplementary Bond Terms Notice
in respect of the Securitisation Fund and providing the terms of
issue of Class A Notes and Class B Notes;
TAX means:
(a) any tax (including GST), levy, charge, impost, duty, fee,
deduction, compulsory loan or withholding; or
(b) any income, stamp or transaction duty, tax or charge,
which is assessed, levied, imposed or collected by any Governmental
Agency and includes, but is not limited to, any interest, fine,
penalty, charge, fee or other amount imposed on or in respect of any
of the above;
TERMINATION DATE means the day which is 1 Business Day prior to the
Final Maturity Date as defined in the Supplementary Bond Terms;
TOP-UP LOAN means, in relation to a Loan, any additional amount
advanced under the Loan (other than under a Loan Redraw Facility)
and secured by the Mortgage securing the Loan.
TRANSACTION DOCUMENT has the meaning given to it in the Master Trust
Deed and includes this agreement and any document or agreement
entered into or given under it (including Notes);
TRANSACTION PARTY means:
(a) the Issuer; or
(b) the SF Manager.
1.2 INTERPRETATION
In this agreement, headings and boldings are for convenience only
and do not affect the interpretation of this agreement and, unless
the context otherwise requires:
(a) words importing the singular include the plural and vice
versa;
(b) words importing a gender include any gender;
(c) other parts of speech and grammatical forms of a word or
phrase defined in this agreement have a corresponding meaning;
(d) an expression importing a natural person includes any company,
partnership, joint venture, association, corporation or other
body corporate and any Governmental Agency;
(e) a reference to any thing (including, but not limited to, any
right) includes a part of that thing;
(f) a reference to a part, clause, party, annexure, exhibit or
schedule is a reference to a part and clause of, and a party,
annexure, exhibit and schedule to, this agreement and a
reference to this agreement includes any annexure, exhibit and
schedule;
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(g) a reference to a statute, regulation, proclamation, ordinance
or by-law includes all statutes, regulations, proclamations,
ordinances or by-laws amending, consolidating or replacing it,
and a reference to a statute includes all regulations,
proclamations, ordinances and by-laws issued under that
statute;
(h) a reference to a document includes all amendments or
supplements to, or replacements or novations of, that
document;
(i) a reference to liquidation includes appointment of an
administrator, compromise, arrangement, merger, amalgamation,
reconstruction, winding up, dissolution, assignment for the
benefit of creditors, scheme, composition or arrangement with
creditors, insolvency, bankruptcy, or a similar procedure or,
where applicable, changes in the constitution of any
partnership or person or death;
(j) a reference to a party to any document includes that party's
successors and permitted assigns;
(k) a reference to an agreement other than this agreement includes
an undertaking, deed, agreement or legally enforceable
arrangement or understanding whether or not in writing;
(l) a reference to an asset includes all property of any nature,
including, but not limited to, a business, and all rights,
revenues and benefits;
(m) a reference to a document includes any agreement in writing,
or any certificate, notice, instrument or other document of
any kind;
(n) no provision of this agreement will be construed adversely to
a party solely on the ground that the party was responsible
for the preparation of this agreement or that provision;
(o) a reference to the drawing, accepting, endorsing or other
dealing with or of a ▇▇▇▇ refers to a drawing, accepting,
endorsing or dealing within the meaning of the Bills of
Exchange ▇▇▇ ▇▇▇▇;
(p) a reference to a body, other than a party to this agreement
(including, without limitation, an institute, association or
authority), whether statutory or not:
(1) which ceases to exist; or
(2) whose powers or functions are transferred to another
body,
is a reference to the body which replaces it or which
substantially succeeds to its powers or functions; and
(q) the Issuer or the Note Holder will only be considered to have
knowledge or awareness of, or notice of, a thing, or grounds
to believe any thing, by virtue of the officers of the Issuer
or the Note Holder having day to day responsibility for the
administration of the Origination Fund or the Securitisation
Fund (as the case may be) having actual knowledge, actual
awareness or actual notice of that thing, or grounds or reason
to believe that thing (and similar references will be
interpreted in this way). In addition, notice, knowledge or
awareness of an Event of Default means notice, knowledge or
awareness of the occurrence of the events or
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circumstances constituting an Event of Default and that those
events or circumstances constitute an Event of Default.
1.3 BUSINESS DAY
Unless otherwise stipulated in this agreement, where the day on or
by which any thing is to be done is not a Business Day, that thing
must be done on or by the succeeding Business Day.
1.4 TRANSACTION DOCUMENT
The parties agree that this agreement and any document or agreement
entered into or given under it (including a Note) is a "Transaction
Document" for the purposes of the Master Trust Deed.
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2 THE NOTES
2.1 APPLICATION FOR AND ISSUE OF NOTES
(a) The SF Manager may direct that the Issuer issues a Note to the
Note Holder by:
(1) directing a Note be issued from the Securitisation Fund;
(2) specifying the principal amount of the Note required;
(3) specifying the proposed date and time of issue of the
Note; and
(4) providing to the Note Holder and the OF Manager a
Funding Notice (and a copy to the Issuer) pursuant to
clause 4.
(b) If the SF Manager has directed that the Issuer issues a Note
in accordance with clause 2.1(a), the Note Holder must
subscribe for the Note as directed by the SF Manager, and the
Issuer must, on the terms of this agreement, issue the Note to
the Note Holder in consideration for the principal amount
provided that the OF Manager and Note Holder have complied
with clause 5.1.
(c) The parties agree that the terms and conditions contained in
this agreement, the Supplementary Bond Terms and the Security
Trust Deed govern the issue and repayment of the Notes.
2.2 ACKNOWLEDGMENT OF INDEBTEDNESS
The Issuer acknowledges its indebtedness to the Note Holder in
respect of each Note issued under this agreement.
2.3 OBLIGATIONS UNDER NOTES
(a) The obligations of the Issuer under the Notes are constituted
by, and specified in, this agreement and in the Conditions.
(b) Each Note is a separate debt of the Issuer.
(c) The entitlement of any person to a Note is determined by
registration as a Note Holder of that Note.
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(d) The making of, or giving effect to, a manifest error in an
inscription in the Register will not avoid the creation or
transfer of a Note.
2.4 OWNERSHIP OF NOTES
(a) A Note may be transferred by the Note Holder to any person in
accordance with this agreement.
(b) The person whose name is registered as the Note Holder of a
Note in the Register will be, and will be treated by the
Issuer as, the absolute owner of the Note.
2.5 REGISTER
The Issuer must:
(a) establish and maintain the Register;
(b) enter in the Register in respect of each Note:
(1) the principal amount and principal outstanding in
respect of each Note;
(2) its date of issue and date of redemption and
cancellation; and
(3) the date on which any person becomes, or ceases to be, a
Note Holder.
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3 TOP-UP LOAN
3.1 PURPOSE
The Issuer must, and the SF Manager must cause the Issuer to, use
the proceeds of a Funding Portion only to make Top-up Loans.
3.2 SUSPENSION OF THE FACILITY
(a) The OF Manager may, as the OF Manager in its absolute
discretion determines, suspend the Facility at any time and
for any period of time after giving notice to the SF Manager
and the Issuer.
(b) Nothing in clause 3.2(a) affects the obligations of the Note
Holder to subscribe for Notes in respect of Top-up Loans
approved by the OF Manager prior to giving notice in
accordance with clause 3.2(a).
(c) The OF Manager may give notice at any time that it withdraws
the suspension.
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4 FUNDING PROCEDURES
4.1 DELIVERY OF FUNDING NOTICE
If the SF Manager determines that the Issuer requires a Note to be
issued, the SF Manager must deliver to the Note Holder and the OF
Manager a Funding Notice in accordance with this clause 4.
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4.2 REQUIREMENTS FOR A FUNDING NOTICE
A Funding Notice:
(a) must be in writing in the form of, and specifying the matters
set out in, schedule 1;
(b) must be received by the Note Holder and the OF Manager not
later than 12 noon on the Business Day which is the Funding
Date; and
(c) must be signed by an Officer of the SF Manager.
4.3 COPY OF THE FUNDING NOTICE
A copy of each Funding Notice must be provided to the Issuer at the
same time it is given to the Note Holder and the OF Manager.
4.4 IRREVOCABILITY OF FUNDING NOTICE
The Note Holder and the OF Manager must not decline to provide the
funding specified in a Funding Notice. Following the issue of the
Funding Notice the Issuer is irrevocably committed to, and the SF
Manager is irrevocably committed to cause the Issuer to, issue the
relevant Note and to draw Funding Portions from the Note Holder in
accordance with the Funding Notice given to the OF Manager and the
Note Holder.
4.5 NOTIFICATION OF FUNDING RATE
(a) After the OF Manager has determined the Base Rate for a
Payment Period it must promptly notify the Issuer and SF
Manager in writing of the Funding Rate for that Payment
Period, specifying both the Base Rate and the Margin.
(b) In the absence of manifest error, each determination of the
Base Rate by the OF Manager is conclusive evidence of that
rate against the Issuer and the SF Manager.
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5 LOAN FACILITY
5.1 PROVISION OF FUNDING PORTIONS
If the SF Manager gives a Funding Notice in accordance with clause
4, then, subject to this agreement (including, without limitation,
clause 11), the Note Holder must, and the OF Manager must cause the
Note Holder to, provide the relevant Funding Portion under the
Facility as payment for the relevant Note in Same Day Funds in
Dollars not later than 12 noon (Melbourne time) on the specified
Funding Date and in accordance with that Funding Notice.
5.2 REPAYMENT
On each relevant Payment Date and to the extent that during the
Payment Period it has not done so, the Issuer must, and the SF
Manager must cause the Issuer to:
(a) repay so much of the Principal Outstanding (to the extent that
funds are available from the Securitisation Fund) as the
Issuer is required to apply
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from Interest Collections to repayment of any principal due
and payable under any Top-up Funding Facility pursuant to
clauses 6.1(a)(14) and 6.1(c)(14) of the Supplementary Bond
Terms; and
(b) repay so much of the Principal Outstanding (to the extent that
funds are available from the Securitisation Fund) (after the
repayment in clause 5.2(a)) as the Issuer is required to apply
from Principal Collections to repayment of any Top-up
Principal Outstanding under any Top-up Funding Facility"
pursuant to clauses 6.2(a)(5) and 6.2(c)(5) of the
Supplementary Bond Terms.
5.3 REPAYMENT OF OUTSTANDING MONEYS
(a) The Principal Outstanding under the Facility must be repaid by
the Issuer to the Note Holder:
(1) in full on the Termination Date; and
(2) otherwise as specified in, or required under, the
Transaction Documents,
and the SF Manager must cause the Issuer to do so.
(b) The Issuer must, and the SF Manager must cause the Issuer to,
pay or repay the balance of the Outstanding Moneys in full to
the Note Holder on the Termination Date or on such other date
on which the Principal Outstanding is, or is required to be,
repaid in full.
5.4 INTEREST
(a) On each relevant Payment Date, the Issuer must, and the SF
Manager must cause the Issuer to, pay to the Note Holder
interest (to the extent that funds are available from the
Securitisation Fund) on the Principal Outstanding at the
Funding Rate:
(1) in relation to any Funding Portion drawn during the
current Payment Period, for the period from and
including the relevant Funding Date to but excluding the
relevant Payment Date; and
(2) in relation to the remainder of the Principal
Outstanding, for the Payment Period,
to the extent to which the Issuer is required to apply from
Interest Collections to payment of any interest due under any
Top-up Funding Facility pursuant to clauses 6.1(a)(4) and
6.1(c)(4) of the Supplementary Bond Terms.
(b) If on any relevant Payment Date, interest in respect of the
relevant Payment Period is not paid on the whole amount of the
Principal Outstanding:
(1) that unpaid interest shall accrue interest at the
Overdue Rate for the next Payment Period;
(2) that unpaid interest and interest accrued under clause
5.4(b)(1) shall become payable on the next relevant
Payment Date to the extent to which (after payment of
interest under clause 5.4(a)) the Issuer is required to
apply from Interest Collections to repayment of interest
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due under any Top-up Funding Facility pursuant to clause
6.1(a) and 6.1(c) of the Supplementary Bond Terms; and
(3) to the extent to which any unpaid interest (including
any interest accrued under clause 5.4(b)(1)) remains
unpaid after that next relevant Payment Date it will
again be subject to clauses 5.4(b)(1) and 5.4(b)(2) for
each subsequent Payment Period and relevant Payment Date
until it has been paid.
(c) Interest must be calculated in arrears on daily balances on
the basis of a 365 day year and for the actual number of days
elapsed during the relevant period.
5.5 ORDER OF REPAYMENT
(a) In making repayments under clauses 5.2 and 5.3, the Issuer
must, and the SF Manager must cause the Issuer to, apply the
amount of the repayment to repay the Principal Outstanding
under the Notes in order of the date of issue of the Notes so
that the Notes issued earlier in time are repaid first.
(b) The Note Holder must, and the OF Manager must cause the Note
Holder to, apply repayments in accordance with clause 6.3(a).
(c) The OF Manager must advise the Issuer and the SF Manager in
writing of the Notes which have been wholly or partly repaid,
the amount of the repayment and the Principal Outstanding
under that Note.
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6 PAYMENTS
6.1 MANNER OF PAYMENTS
All payments to the Note Holder under the Material Documents must be
made:
(a) in Same Day Funds;
(b) in Dollars; and
(c) not later than 11:00 am (Melbourne time) on the due date,
to the account of the Note Holder specified by the OF Manager to the
Issuer or in such other manner to an account of the Note Holder as
the OF Manager directs from time to time.
6.2 PAYMENTS ON A BUSINESS DAY
If a payment is due on a day which is not a Business Day, the due
date for that payment is the next Business Day and interest must be
adjusted accordingly.
6.3 APPROPRIATION OF PAYMENTS
(a) All payments made by the Issuer to the Note Holder under this
agreement may be appropriated as between principal, interest
and other amounts, as the OF Manager in its absolute
discretion determines, or, failing any determination, in the
following order:
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(1) first, towards reimbursement of all fees, costs,
expenses, charges, damages and indemnity payments
incurred or due and owing by the Transaction Parties
under the Material Documents;
(2) second, towards payment of interest due and payable
under the Material Documents; and
(3) third, towards repayment of the Principal Outstanding.
(b) Any appropriation under clause 6.3(a) overrides any
appropriation made by the Issuer.
6.4 PAYMENTS IN GROSS
All payments which a Transaction Party is required to make under any
Material Document must be:
(a) without any set-off, counterclaim or condition; and
(b) without any deduction or withholding for any Tax or any other
reason, unless, the Transaction Party is required to make a
deduction or withholding by applicable law.
6.5 TAXATION DEDUCTION PROCEDURES
If a Transaction Party is required to make a deduction or
withholding in respect of Tax from any payment to be made to the
Note Holder under any Material Document, then:
(a) that Transaction Party has no obligation to indemnify the Note
Holder against that tax; and
(b) that Transaction Party must, and in the case of the Issuer,
the SF Manager must cause the Issuer to, use its best
endeavours to obtain official receipts or other documentation
from that Governmental Agency and within 2 Business Days after
receipt the Issuer must, and the SF Manager must cause the
Issuer to, deliver them to the Note Holder.
6.6 AMOUNTS PAYABLE ON DEMAND
If any amount payable by a Transaction Party under any Material
Document is not expressed to be payable on a specified date that
amount is payable by the Transaction Party on demand by the Note
Holder or OF Manager.
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7 REPRESENTATIONS AND WARRANTIES
7.1 BY THE ISSUER
The Issuer hereby represents and warrants to the OF Manager and Note
Holder that:
(a) (DUE INCORPORATION): it is duly incorporated and has the
corporate power to own its property and to carry on its
business as is now being conducted;
(b) (CONSTITUTION): the execution delivery and performance of this
agreement and any Note does not and will not violate its
Constitution;
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(c) (CORPORATE POWER): it has the power and has taken all
corporate and other action required to enter into this
agreement and each Note and to authorise the execution and
delivery of this agreement and each Note and the performance
of its obligations thereunder:
(d) (FILINGS): it has filed all corporate notices and effected all
registrations with the Australian Securities and Investments
Commission or similar office in the jurisdiction of
incorporation and in any other jurisdiction as required by law
and all such filings and registrations are current, complete
and accurate except;
(1) as such enforceability may be limited by any applicable
bankruptcy, insolvency, reorganisation, moratorium or
trust or other similar laws affecting creditors' rights
generally; and
(2) that this representation and warranty does not apply to
the filing of ASIC form 309 in relation to the creation
of the Charge (as defined in the Security Trust Deed);
(e) (LEGALLY BINDING OBLIGATION): this agreement and each Note
constitutes or will constitute a valid, legally binding and
enforceable obligation of it in accordance with its terms
except as such enforceability may be limited by any applicable
bankruptcy, insolvency, reorganisation, moratorium or trust
laws or other similar laws affecting creditors' rights
generally;
(f) (EXECUTION, DELIVERY AND PERFORMANCE): the execution, delivery
and performance of this agreement and each Note by it does not
violate any existing law or regulation or any document or
agreement to which it is a party in either case in its
capacity as trustee of the Securitisation Fund or which is
binding upon it or any of its assets in its capacity as
trustee of the Securitisation Fund;
(g) (AUTHORISATION): all consents, licences, approvals and
authorisations of every Governmental Agency required to be
obtained by it in connection with the execution and delivery
of, and performance of its obligations under, this agreement
and any Note have been obtained and are valid and subsisting;
(h) (SECURITISATION FUND VALIDLY CREATED): the Securitisation Fund
has been validly created and is in existence at the date of
this agreement;
(i) (SOLE TRUSTEE): it has been validly appointed as trustee of
the Securitisation Fund and is presently the sole trustee of
the Securitisation Fund;
(j) (MASTER TRUST DEED): the Securitisation Fund is constituted
pursuant to the Master Trust Deed; and
(k) (NO PROCEEDINGS TO REMOVE): no notice has been given to it and
to its knowledge no resolution has been passed or direction or
notice has been given, removing it as trustee of the
Securitisation Fund.
7.2 BY THE SF MANAGER
The SF Manager hereby represents and warrants to the OF Manager and
Note Holder that:
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(a) (DUE INCORPORATION): it is duly incorporated and has the
corporate power to own its property and to carry on its
business as is now being conducted;
(b) (CONSTITUTION): the execution, delivery and performance by it
of this agreement and each Note does not and will not violate
its Constitution;
(c) (CORPORATE POWER): the SF Manager has the power and has taken
all corporate and other action required to enter into this
agreement and each Note and to authorise the execution and
delivery of this agreement and each Note and the performance
of its obligations hereunder;
(d) (FILINGS): the SF Manager has filed all corporate notices and
effected all registrations with the Australian Securities and
Investments Commission or similar office in its jurisdiction
of incorporation and in any other jurisdiction as required by
law and all such filings and registrations are current,
complete and accurate;
(e) (LEGALLY BINDING OBLIGATION): this agreement and each Note
constitutes or will constitute a valid, legally binding and
enforceable obligation of the SF Manager in accordance with
its terms except as such enforceability may be limited by any
applicable bankruptcy, insolvency, re-organisation, moratorium
or trust or other similar laws affecting creditors' rights
generally;
(f) (EXECUTION, DELIVERY AND PERFORMANCE): the execution, delivery
and performance of this agreement and each Note by the SF
Manager does not violate any existing law or regulation or any
document or agreement to which the SF Manager is a party or
which is binding upon it or any of its assets; and
(g) (AUTHORISATION): all consents, licences, approvals and
authorisations of every Government Agency required to be
obtained by the SF Manager in connection with the execution,
delivery and performance of this agreement and each Note have
been obtained and are valid and subsisting.
7.3 SURVIVAL AND REPETITION OF REPRESENTATIONS AND WARRANTIES
The representations and warranties in, or given under, this
agreement including, but not limited to, clauses 7.1 and 7.2:
(a) survive the execution of each Transaction Document; and
(b) are regarded as repeated on each Funding Date with respect to
the facts and circumstances then subsisting.
7.4 RELIANCE BY THE NOTE HOLDER AND OF MANAGER
The Issuer and the SF Manager each acknowledge that the Note Holder
and OF Manager have entered into each Transaction Document to which
it is a party in reliance on the representations and warranties in,
or given under, this agreement including, but not limited to,
clauses 7.1 and 7.2.
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8 UNDERTAKINGS
8.1 TERM OF UNDERTAKINGS
Unless the OF Manager otherwise agrees in writing, until the
Outstanding Moneys are fully and finally repaid the Issuer and the
SF Manager must, at its own cost (but without prejudice to clause 11
in the case of the Issuer), comply with the undertakings in this
clause 8.
8.2 COMPLIANCE WITH COVENANTS
The Issuer must and the SF Manager must ensure that the Issuer does
comply with all of its covenants and obligations under the Security
Trust Deed and Supplementary Bond Terms.
8.3 NOTIFY EVENTS OF DEFAULT
On and from the Termination Date, each of the SF Manager and the
Issuer must immediately notify all the other parties to this
agreement in writing if it becomes actually aware of the occurrence
of any Event of Default and must provide full and complete details
in relation thereto immediately upon becoming actually aware of such
details.
8.4 KNOW YOUR CUSTOMER
Subject to any confidentiality, privacy or general trust law
obligations owed by the Issuer to Bondholders and any applicable
confidentiality or privacy laws, except to the extent those
obligations or laws are overridden by applicable anti-money
laundering or counter-terrorism financing laws, each party hereto
(INFORMATION PROVIDER) agrees to provide any information and
documents reasonably required by another party hereto (INFORMATION
RECEIVER) for the Information Receiver to comply with any applicable
anti-money laundering or counter-terrorism financing laws including,
without limitation, any laws imposing "know your customer" or other
identification checks or procedures on a party, but only to the
extent that such information is in the possession of, or otherwise
readily available to, the Information Provider. The Information
Receiver may, to the extent required by law, decline to perform its
affected obligations under the Transaction Documents to which it is
a party. Any Information Receiver receiving information and
documents pursuant to this clause 8.4 agrees to utilize such
information and documents solely for the purpose of complying with
applicable anti-money laundering or counter-terrorism financing
laws.
8.5 COMPLIANCE WITH REGULATION AB
In relation to compliance with Regulation AB:
(a) the SF Manager and the Issuer acknowledge and agree that the
purpose of this clause 8.5 is to facilitate compliance by the
Issuer in relation to the Securitisation Fund with the
provisions of Regulation AB and related rules and regulations
of the Commission to the extent applicable to the Issuer;
(b) the SF Manager shall not exercise its right to request
delivery of information or other performance under these
provisions other than as required to comply with the
Securities Act, the Exchange Act and the rules
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and regulations of the Commission thereunder, including
Regulation AB, with respect to the Securitisation Fund. The SF
Manager shall not request the delivery of information or other
performance under this clause 8.5 unless the SF Manager is
required under the Exchange Act to file an annual report on
Form 10-K with respect to the Securitisation Fund. The SF
Manager and the Issuer acknowledge that interpretations of the
requirements of Regulation AB may change over time, whether
due to interpretive guidance provided by the Commission or its
staff, consensus among participants in the asset-backed
securities markets, advice of counsel, or otherwise, and
agrees to comply with requests made by the SF Manager in good
faith for delivery of information under these provisions on
the basis of evolving interpretations of Regulation AB;
provided that, to the extent the SF Manager and the Issuer do
not agree with respect to an interpretation of Regulation AB,
the SF Manager and the Issuer shall obtain a written opinion
of counsel of U.S. national reputation in the practice of U.S.
federal securities laws reasonably acceptable to the SF
Manager and the Issuer, addressed to the SF Manager and the
Issuer, stating the opinion of such counsel with respect to
the interpretation of the relevant provision(s) of Regulation
AB; provided, further, that the costs and fees of such counsel
incurred in the preparation of such written opinion shall be
divided equally between the SF Manager and the Issuer. In
relation to the Securitisation Fund, the Issuer shall
cooperate fully with the SF Manager to deliver to the SF
Manager (including any of its assignees or designees), any and
all statements, reports, certifications, records and any other
information within the control of the Issuer or for which the
Issuer is responsible necessary in the good faith
determination of the SF Manager to permit the SF Manager to
comply with the provisions of Regulation AB, together with
such disclosures relating to the SF Manager, the Issuer, any
Subcontractor of the Issuer, the Loans, the servicing of the
Loans or any other servicing activities within the meaning of
Item 1122 of Regulation AB, reasonably believed by the SF
Manager to be necessary in order to effect such compliance;
(c) the SF Manager (including any of its assignees or designees)
shall cooperate with the Issuer by providing timely notice of
requests for information under these provisions following the
SF Manager becoming aware that it is required under the
Exchange Act to file an annual report on Form 10-K in any year
and by reasonably limiting such requests to information
required, in the SF Manager's reasonable judgment, to comply
with Regulation AB;
(d) the Issuer acknowledges and agrees that, to the extent the SF
Manager reasonably determines, upon consultation with, and to
the extent agreed with, the Issuer, that the Issuer is
"participating in the servicing function" in relation to the
Securitisation Fund within the meaning of Item 1122 of
Regulation AB, the Issuer will comply with the applicable
requirements contained in clause 8.5(e) - (i); provided that,
to the extent the SF Manager and the Issuer do not agree
whether the Issuer is "participating in the servicing
function" with respect to one or more Servicing Criteria
within the meaning of Item 1122 in relation to the
Securitisation Fund, the SF Manager and the Issuer shall
obtain a written opinion of counsel of U.S. national
reputation in the practice of U.S. federal securities laws
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reasonably acceptable to the SF Manager and the Issuer,
addressed to the SF Manager and the Issuer, stating whether,
in the opinion of such counsel, the Issuer is "participating
in the servicing function" with respect to such Servicing
Criteria within the meaning of Item 1122 in relation to the
Securitisation Fund; provided, further, that the costs and
fees of such counsel incurred in the preparation of such
written opinion shall be divided equally between the SF
Manager and the Issuer;
(e) on or before September 1 of each calendar year, commencing in
[ ], the Issuer shall upon the reasonable request of the
Manager:
(1) deliver to the SF Manager a report (in form and
substance reasonably satisfactory to the SF Manager)
regarding the Issuer's assessment of compliance with the
Servicing Criteria during the immediately preceding
financial year ended June 30, as required under Rules
13a-18 and 15d-18 of the Exchange Act and Item 1122 of
Regulation AB. Such report shall be addressed to the SF
Manager and signed by an authorized officer of the
Issuer, and shall address each of the Servicing Criteria
specified on a certification substantially in the form
of Schedule 3 hereto and addressing, at a minimum, the
criteria identified in Schedule 4 hereto as "Applicable
Servicing Criteria", but only with respect to such of
the Servicing Criteria that the Issuer performs;
(2) deliver to the SF Manager a report of a registered
public accounting firm reasonably acceptable to the SF
Manager that attests to, and reports on, the assessment
of compliance made by the Issuer and delivered pursuant
to the preceding paragraph. Such attestation shall be in
accordance with Rules 1-02(a)(3) and 2-02(g) of
Regulation S-X under the Securities Act and the Exchange
Act;
(3) cause each Subcontractor of the Issuer (if any)
determined by the Issuer pursuant to clause 8.5 to be
"participating in the servicing function" within the
meaning of Item 1122 of Regulation AB, to deliver to the
SF Manager an assessment of compliance and accountants'
attestation as and when provided in clause 8.5(e)(1) and
8.5(e)(2), but only with respect to such of the
Servicing Criteria that such Subcontractor of the Issuer
performs;
An assessment of compliance provided by a Subcontractor of the
Issuer pursuant to clause 8.5(e)(3) need not address any
elements of the Servicing Criteria other than those specified
by the Issuer pursuant to clause 8.5(f), and need only address
such of the Servicing Criteria that such Subcontractor
performs;
(f) in relation to the use of Subcontractors:
(1) the Issuer shall promptly upon the reasonable request of
the SF Manager provide to the SF Manager (or any
designee of the SF Manager) a written description (in
form and substance satisfactory to the SF Manager) of
the role and function of each Subcontractor utilized by
the Issuer, specifying:
(A) the identity of each such Subcontractor;
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(B) which (if any) of such Subcontractors are
"participating in the servicing function" within
the meaning of Item 1122 of Regulation AB; and
(C) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by
each Subcontractor identified pursuant to clause
8.5(f)(1)(B);
(2) as a condition to the utilization of any Subcontractor
determined to be "participating in the servicing
function" within the meaning of Item 1122 of Regulation
AB, (i) the Issuer shall cause any such Subcontractor
used by the Issuer for the benefit of the SF Manager to
comply with the provisions of clauses 8.5(e) - (i), 8.6
and 8.7 of this agreement to the same extent as if such
Subcontractor were the Issuer (provided that in the case
of a Subcontractor of the Issuer, the obligations of
such Subcontractor under clause 8.5(g) will be owed
directly to the SF Manager and the Issuer will do all
things reasonably necessary to cause the Subcontractor
to owe such obligations directly to the SF Manager) and
(ii) the Issuer shall obtain the written consent of the
SF Manager (which is not to be unreasonably withheld or
delayed) to the utilization of such Subcontractor. The
Issuer shall be responsible for obtaining from each
Subcontractor and delivering to the SF Manager any
assessment of compliance and accountants' attestation
required to be delivered by such Subcontractor under
clause 8.5(e) - (i), in each case as and when required
to be delivered;
(g) the Issuer shall indemnify the SF Manager and shall hold the
SF Manager harmless from and against any losses, damages,
penalties, fines, forfeitures, legal fees and expenses and
related costs, judgments, and any other costs, fees and
expenses that it sustains directly as a result of:
(1) any untrue statement of a material fact contained or
alleged to be contained in any information, report,
certification, accountants' letter or other material
provided in written or electronic form under this clause
8.5 by or on behalf of the Issuer, or provided under
this clause 8.5 by or on behalf of any Subcontractor of
the Issuer (collectively, the "Issuer Information");
provided that in the case of any untrue statement of a
material fact contained or alleged to be contained in
the accountant's letter, the Issuer will indemnify and
hold harmless the SF Manager only to the extent of the
sum that the Issuer recovers from the accounting firm
providing such accountant's letter (which recovery the
Issuer must if the Issuer in good faith determines the
Issuer is entitled to do so after taking professional
advice pursue including by taking action in any relevant
court of competent jurisdiction); provided, further,
that the Issuer will not indemnify and hold harmless the
SF Manager to the extent that the untrue statement of a
material fact contained or alleged to be contained in
the Issuer Information relates to information provided
to the Issuer by the SF Manager or any other party to
enable the Issuer to complete its duties under the
Transaction Documents; or
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(2) the omission or alleged omission to state in the Issuer
Information a material fact required to be stated in the
Issuer Information or necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading; provided, by
way of clarification, that this clause 8.5(g)(2) shall
be construed solely by reference to the Issuer
Information and not to any other information
communicated in connection with a sale or purchase of
securities, without regard to whether the Issuer
Information or any portion thereof is presented together
with or separately from such other information;
provided, further, that in the case of the omission or
alleged omission to state in an accountant's letter a
material fact required to be stated in the accountant's
letter or necessary in order to make the statements
therein, in the light of the circumstances under which
they were made, not misleading, the Issuer will
indemnify and hold harmless the SF Manager only to the
extent of the sum that the Issuer recovers from the
accounting firm providing such accountant's letter
(which recovery the Issuer must if the Issuer in good
faith determines the Issuer is entitled to do so after
taking professional advice pursue including by taking
action in any relevant court of competent jurisdiction);
provided, further, that the Issuer will not indemnify
and hold harmless the SF Manager to the extent that the
omission or alleged omission to state in the Issuer
Information a material fact required to be stated in the
Issuer Information or necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading, relates to
information provided to the Issuer by the SF Manager or
any other party to enable the Issuer to complete its
duties under the Transaction Documents; or
(3) any failure by the Issuer or any Subcontractor of the
Issuer to deliver any information, report,
certification, accountants' letter or other material
when and as required under this clause 8.5, including
any failure by the Issuer to disclose any non-compliance
with any of the Servicing Criteria in a certification or
to identify pursuant to clause 8.5(f) any Subcontractor
"participating in the servicing function" within the
meaning of Item 1122 of Regulation AB. In the case of
any failure of performance described in clause
8.5(g)(3), the Issuer shall promptly reimburse the SF
Manager, for all costs reasonably incurred by the SF
Manager in order to obtain the information, report,
certification, accountants' letter or other material not
delivered as required by the Issuer or any Subcontractor
of the Issuer;
(h) any failure by the Issuer or any Subcontractor of the Issuer
to:
(1) deliver any information, report, certification,
accountants' letter or other material when and as
required under this clause 8.5, shall, except as
provided in clause 8.5(h)(2), immediately and
automatically, without notice or grace period, entitle
the SF Manager, in its sole discretion:
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(A) to remove the Issuer or direct the Issuer to
remove the Subcontractor of the Issuer from the
performance of any activities which the SF Manager
reasonably determines to constitute "participating
in the servicing function" in relation to the
Securitisation Fund within the meaning of Item
1122 of Regulation AB; and
(B) to replace such party with respect to such
activities, each at the expense of the Issuer,
without payment (notwithstanding anything in the
Transaction Documents to the contrary) of any
compensation to the Issuer; provided that to the
extent that any provision of the Transaction
Documents expressly provides for the survival of
certain rights or obligations following
termination of the Issuer, such provision shall be
given effect;
(2) deliver any information, report, certification or
accountants' letter when and as required under clause
8.5(e) - (i) or (except as provided below) any failure
by the Issuer to identify pursuant to clause 8.5(f) any
Subcontractor of the Issuer "participating in the
servicing function" within the meaning of Item 1122 of
Regulation AB, which continues unremedied for ten
calendar days after the date on which such information,
report, certification or accountants' letter was
required to be delivered, shall entitle the SF Manager,
in its sole discretion:
(A) to remove the Issuer or direct the Issuer to
remove the Subcontractor of the Issuer from the
performance of any activities which the SF Manager
reasonably determines to constitute "participating
in the servicing function" in relation to the
Securitisation Fund within the meaning of Item
1122 of Regulation AB; and
(B) to replace such party with respect to such
activities, in the case of the Issuer or any
Subcontractor of the Issuer, at the expense of the
Issuer, without payment (notwithstanding anything
in the Transaction Documents to the contrary) of
any compensation to the Issuer;
provided that to the extent that any provision of the
Transaction Documents expressly provides for the survival of
certain rights or obligations following termination of the
Issuer, such provision shall be given effect; and
(i) the Issuer shall promptly reimburse the SF Manager (or any
designee of the SF Manager), for all reasonable expenses
incurred by the SF Manager (or such designee), as such are
incurred, in connection with the termination of the Issuer and
the transfer of servicing activities within the meaning of
Item 1122 of Regulation AB to a successor. The provisions of
this clause 8.5(i) shall not limit whatever rights the SF
Manager may have under other provisions of the Transaction
Documents or otherwise, whether in equity or at law, such as
an action for damages, specific performance or injunctive
relief.
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8.6 DIRECTION OF CLAIMS BY THE SF MANAGER
(a) If the Issuer is entitled to recover from the accounting firm
providing the accountant's letter referred to in clause 8.5(g)
by any action, proceeding, claim or demand (for the purpose of
this clause 8.6, a CLAIM), the Issuer must if the Issuer in
good faith determines that it is entitled to do so after
taking professional advice pursue such Claim and must promptly
notify the SF Manager in writing of such Claim.
(b) Upon notice to the SF Manager of any such Claim under clause
8.6(a), the SF Manager will have the option to assume the
direction of that Claim (including the employment of legal
advisers selected by the Issuer but approved by the SF Manager
subject to the payment by the Issuer of all fees and
expenses).
(c) If the Issuer receives notice from the SF Manager of its
election to direct the Claim and the SF Manager approves the
legal advisers selected by the Issuer for the purposes of that
Claim, the Issuer will not be liable to the SF Manager under
this clause 8.6 for any fees or expenses subsequently incurred
by the SF Manager in connection with the Claim unless the
Issuer does not employ legal advisers approved by or on behalf
of the SF Manager to represent the SF Manager within a
reasonable time after notice of the Claim.
8.7 DIRECTION OF DEFENCE OF CLAIMS
(a) If any action, proceeding, claim or demand brought against the
SF Manager in connection with (i) any untrue statement of a
material fact contained or alleged to be contained in the
Issuer Information referred to in clause 8.5(g) or (ii) the
omission or alleged omission to state in the Issuer
Information a material fact required to be stated in the
Issuer Information or necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading (for the purpose of this
clause 8.7, a CLAIM), the Issuer will have the option to
assume the direction of that Claim (including the employment
of legal advisers selected by the Issuer but approved by the
SF Manager subject to the payment by the Issuer of all fees
and expenses).
(b) If the Issuer notifies the SF Manager in writing of its
election to direct the defence of a Claim brought against the
Issuer and the SF Manager approves the legal advisers selected
by the Issuer for the purposes of the defence of that Claim,
the Issuer will not be liable to the SF Manager under this
clause 8.7 for any fees or expenses subsequently incurred by
the SF Manager in connection with the Claim against the Issuer
unless the Issuer does not employ legal advisers approved by
or on behalf of the SF Manager to represent the Issuer within
a reasonable time after notice of the Claim.
(c) If any Claim brought against the Issuer is settled with
respect to the Issuer with the consent of the SF Manager or if
there is a final judgement against the Issuer in relation to
it, the Issuer agrees to indemnify and hold harmless the SF
Manager from and against any loss or liability by reason of
such settlement or judgement (other than any fees and expenses
incurred in circumstances where the Issuer is not liable for
them under clause 8.7(b),
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or any fees and expenses incurred in connection with any Claim
brought against the Issuer that is settled with respect to the
Issuer or compromised by the Issuer without the consent of the
SF Manager (unless the SF Manager has unreasonably withheld
its consent)).
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9 EVENTS OF DEFAULT
9.1 EFFECT OF EVENT OF DEFAULT
(a) Upon or at any time after the occurrence of an Event of
Default the Note Holder or the OF Manager may by notice to the
Issuer and the SF Manager declare that the Outstanding Moneys
are immediately due and payable.
(b) The Issuer must and the SF Manager must cause the Issuer to
upon receipt of a notice under clause 9.1(a) immediately repay
in full the Outstanding Moneys to the Note Holder.
9.2 ISSUER TO CONTINUE TO PERFORM
(a) If the Note Holder or OF Manager makes any declaration under
clause 9.1:
(1) the declaration does not affect or diminish the duties
and obligations of the Issuer or the SF Manager under
the Transaction Documents; and
(2) each of the Issuer and the SF Manager must continue to
perform its obligations under the Transaction Documents
as if the declaration had not been made, subject to any
directions that may be given by the Note Holder or the
OF Manager from time to time under any Transaction
Document.
(b) Clause 9.2(a) does not affect the obligations of the Issuer or
the SF Manager under clause 9.1.
9.3 ENFORCEMENT
(a) The Material Documents may be enforced without notice to or
consent by the Issuer or SF Manager or any other person even
if the Note Holder accepts any part of the Outstanding Moneys
after an Event of Default or there has been any other Event of
Default.
(b) Neither the Note Holder nor the OF Manager is liable to any
Transaction Party for any loss or damage a Transaction Party
may suffer, incur or be liable for arising out of or in
connection with the Note Holder or OF Manager exercising any
Power under any Material Document.
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10 INCREASED COSTS, ILLEGALITY AND YIELD PROTECTION
10.1 INCREASED COSTS
If the OF Manager determines that the Note Holder is affected by any
future, or any change in any present or future, law, regulation,
order, treaty, official directive or request (with which, if not
having the force of law, compliance is in
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accordance with the practice of responsible bankers and financial
institutions in the jurisdiction concerned) including, but not
limited to in respect of:
(a) any reserve, liquidity, capital adequacy, capital allocation,
special deposit or similar requirement; or
(b) Tax (other than Excluded Tax in respect of the Securitisation
Fund) on or in respect of payments made or to be made to the
Note Holder under a Material Document,
or a present or future interpretation or administration of any of
them by a Governmental Agency, and that, as a result:
(c) the effective cost to the Note Holder of making, funding or
maintaining the Facility or the Principal Outstanding or
performing any of its obligations under or in respect of the
Material Documents is in any way directly or indirectly
increased; or
(d) any amount paid or payable to, or received or receivable by,
the Note Holder or the effective return to the Note Holder
under the Material Documents is in any way directly reduced;
or
(e) the Note Holder is required to make any payment or forego any
interest or other return on or calculated by reference to:
(1) any sum received or receivable by it under or in respect
of the Material Documents in an amount which the OF
Manager considers material; or
(2) any capital or other amount which is or becomes directly
or indirectly allocated by the Note Holder to the
Principal Outstanding in an amount which the OF Manager
considers material; or
(f) the Note Holder is restricted in its capacity to enter into,
or is prevented from entering into, any other transaction with
any consequence referred to in clause 10.1(c), (d) or (e) or
with any other cost or loss of return to the Note Holder,
then, and in each such case:
(g) when it becomes aware of the relevant result and has
calculated or otherwise determined the relevant effects the
Note Holder must and the OF Manager must cause the Note Holder
to promptly notify each Transaction Party of such event; and
(h) the Issuer and the SF Manager have no obligation to pay any
amount to compensate the Note Holder for such increased cost,
reduction, payment or foregone interest or other loss of
return.
10.2 ILLEGALITY
If any event occurs (including, but not limited to, any change in,
or the introduction, implementation, operation or taking effect of,
any law, regulation, treaty, order or official directive, or in
their interpretation or application by any Governmental Agency)
which makes it unlawful, or impracticable for the Note Holder to
make, fund or maintain the Principal Outstanding or for the Note
Holder or OF Manager to perform its obligations under any Material
Documents then:
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(a) the obligations of the Note Holder and the OF Manager under
the Material Documents are immediately suspended for the
duration of such illegality or other effect; and
(b) the Note Holder and the OF Manager may, by notice to the
Issuer terminate its obligations under the Material Documents;
and
(c) if required by the applicable event, or its effect, or if
necessary to prevent or remedy a breach or to comply with any
applicable law, regulation, treaty, order or official
directive the Issuer must and the SF Manager must cause it to
immediately prepay to the Note Holder the Outstanding Moneys
of it in full or, if in the OF Manager's opinion delay in
prepayment does not compound such breach or affect such
compliance, at the end of at least the longer of 30 days and
the period ending on the next occurring relevant Payment Date
(or such lesser period if the applicable law, regulation,
treaty, order or official directive requires) upon prior
notice to that effect from the OF Manager.
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11 TRUSTEE LIMITATION OF LIABILITY PROTECTION
11.1 LIMITATION OF LIABILITY - ISSUER
(a) Clause 26 of the Master Trust Deed applies to the obligations
and liabilities of the Issuer and SF Manager under this
agreement.
(b) The Issuer enters into this agreement in its capacity as
trustee of the Securitisation Fund and in no other capacity
(except where the Transaction Documents provide otherwise).
Subject to clause 11.1(d), a liability of the Issuer arising
under or in connection with this agreement or the
Securitisation Fund is limited to and can be enforced against
the Issuer only to the extent to which it can be satisfied out
of the assets and property of the Securitisation Fund which
are available to satisfy the right of the Issuer to be
exonerated or indemnified for the liability. This limitation
of the Issuer's liability applies despite any other provision
of this agreement and extends to all liabilities and
obligations of the Issuer in any way connected with any
representation, warranty, conduct, omission, agreement or
transaction related to this agreement or the Securitisation
Fund.
(c) Subject to clause 11.1(d), no person (including any Relevant
Party) may take action against the Issuer in any capacity
other than as trustee of the Securitisation Fund or seek the
appointment of a receiver (except under the Security Trust
Deed), or a liquidator, an administrator or any similar person
to the Issuer or prove in any liquidation, administration or
arrangement of or affecting the Issuer (except in relation to
the assets of the Securitisation Fund).
(d) The provisions of this clause 11.1 shall not apply to any
obligation or liability of the Issuer to the extent that it is
not satisfied because under a Transaction Document or by
operation of law there is a reduction in the extent of the
Issuer's indemnification or exoneration out of the assets of
the Securitisation Fund, as a result of the Issuer's fraud,
negligence or wilful default.
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(e) It is acknowledged that the Relevant Parties are responsible
under this agreement or the other Transaction Documents for
performing a variety of obligations relating to the
Securitisation Fund. No act or omission of the Issuer
(including any related failure to satisfy its obligations
under this agreement) will be considered fraud, negligence or
wilful default of the Issuer for the purposes of clause
11.1(d) to the extent to which the act or omission was caused
or contributed to by any failure by any Relevant Party or any
other person who has been delegated or appointed by the Issuer
in accordance with the Transaction Documents to fulfil its
obligations relating to the Securitisation Fund or by any
other act or omission of a Relevant Party or any other person.
(f) No attorney, agent, receiver or receiver and manager appointed
in accordance with this agreement or any other Transaction
Document has authority to act on behalf of the Issuer in a way
which exposes the Issuer to any personal liability and no act
or omission of any such person will be considered fraud,
negligence or wilful default of the Issuer for the purposes of
clause 11.1(d).
(g) In this clause 11.1, RELEVANT PARTIES means any party to a
Transaction Document other than the Issuer.
(h) The Issuer is not obliged to do or refrain from doing anything
under this agreement (including incur any liability) unless
the Issuer's liability is limited in the same manner as set
out in clauses 11.1(b) to 11.1(f).
11.2 LIMITATION OF LIABILITY - NOTE HOLDER
(a) Clause 26 of the Master Trust Deed applies to the obligations
and liabilities of the Note Holder and OF Manager under this
agreement.
(b) The Note Holder enters into this agreement only in its
capacity as trustee of the Origination Fund and no other
capacity. A liability of the Note Holder arising under or in
connection with this agreement is limited to and can be
enforced against the Note Holder only to the extent to which
it can be satisfied out of property of the Origination Fund
out of which the Note Holder is actually indemnified for the
liability. This limitation of the Note Holder's liability
applies despite any other provision of this agreement and
extends to all liabilities and obligations of the Note Holder
in any way connected with any representation, warranty,
conduct, omission, agreement or transaction related to this
agreement.
(c) The parties other than the Note Holder may not take action
against the Note Holder in any capacity other than as trustee
of the Origination Fund or seek the appointment of a receiver
(except in relation to property of the Origination Fund), a
liquidator, an administrator or any similar person to the Note
Holder or prove in any liquidation, administration or
arrangement of or affecting the Note Holder (except in
relation to property of the Origination Fund).
(d) The provisions of this clause 11.2 shall not apply to any
obligation or liability of the Note Holder to the extent that
it is not satisfied because under the Master Trust Deed
establishing the Origination Fund or by operation of law there
is a reduction in the extent of the Note Holder's
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indemnification out of the assets of the Origination Fund, as
a result of the Note Holder's fraud, negligence or wilful
default.
(e) It is acknowledged that the OF Manager is responsible under
the Master Trust Deed establishing the Origination Fund for
performing a variety of obligations relating to the
Origination Fund, including under this agreement. No act or
omission of the Note Holder (including any related failure to
satisfy its obligations or breach of representation or
warranty under this agreement) will be considered fraud,
negligence or wilful default of the Note Holder for the
purposes of clause 11.2(d) to the extent to which the act or
omission was caused or contributed to by any failure by the OF
Manager or any other person to fulfil its obligations relating
to the Origination Fund or by any other act or omission of the
OF Manager or any other person.
(f) No attorney, agent, receiver or receiver and manager appointed
in accordance with this agreement has authority to act on
behalf of the Note Holder in a way which exposes the Note
Holder to any personal liability and no act or omission of any
such person will be considered fraud, negligence or wilful
default of the Note Holder for the purposes of clause 11.2(d).
(g) The Note Holder is not obliged to do or refrain from doing
anything under this agreement (including incur any liability)
unless the Note Holder's liability is limited in the same
manner as set out in clauses 11.2(b) to 11.2(f).
11.3 WILFUL DEFAULT OF THE ISSUER AND THE NOTE HOLDER
For the purposes of this agreement the expression "wilful default":
(a) in relation to the Issuer and the Note Holder, means a wilful
default of this agreement by the Issuer or the Note Holder, as
the case may be,
(1) other than a default which:
(A) arises out of a breach of a Transaction Document
by a person other than the Issuer or the Note
Holder or any person referred to in clause 11.3(b)
in relation to the Issuer or the Note Holder;
(B) arises because some other act or omission is a
precondition to the relevant act or omission of
the Issuer or the Note Holder, and that other act
or omission does not occur;
(C) is in accordance with a lawful court order or
direction or is required by law; or
(D) is in accordance with an instruction or direction
given to it by any person in circumstances where
that person is authorised to do so by any
Transaction Document; and
(2) in circumstances where had it not committed that default
it would have been entitled to recoupment, reimbursement
or a right of indemnity for its costs and expenses (if
any) in complying with this agreement from the Fund.
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(b) A reference to the "fraud", "negligence" or "wilful default"
of the Issuer or the Note Holder means the fraud, negligence
or wilful default of the Issuer or the Note Holder, as the
case may be, and of the officers or employees but not the
agents or delegates of the Issuer or the Note Holder, unless
the Issuer or the Note Holder is liable for the acts or
omissions of such other person under the terms of this
agreement.
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12 INDEMNITIES
12.1 GENERAL INDEMNITY
(a) Subject to clause 11.1 the Issuer, to the extent it is
permitted or contemplated under the terms of the Master Trust
Deed, indemnifies on a full indemnity basis (including legal
costs and expenses charged at the usual commercial rates of
the relevant legal services provider) and out of the property
of the Securitisation Fund the Note Holder and OF Manager
against any claim, action, damage, loss, liability, cost,
charge, expense, outgoing or payment which the Note Holder or
OF Manager, as the case may be, or an Attorney of the Note
Holder or OF Manager pays, suffers, incurs or is liable for,
in respect of any of the following:
(1) a Funding Portion required by a Funding Notice, not
being made for any reason but excluding any default by
the Note Holder or OF Manager, as the case may be;
(2) the occurrence of any Default or Event of Default;
(3) the Note Holder or OF Manager, as the case may be,
exercising its Powers consequent upon or arising out of
the occurrence of any Event of Default.
(b) Without limitation to the indemnity contained in clause
12.1(a), that indemnity includes the amount determined by the
Note Holder or OF Manager, as the case may be, as being
incurred by reason of the liquidation or re-employment of
deposits or other funds acquired or contracted for by the Note
Holder or OF Manager, as the case may be to fund or maintain
the Principal Outstanding or the relevant Funding Portion and
includes, but is not limited to, loss of margin.
12.2 CONTINUING INDEMNITIES AND EVIDENCE OF LOSS
(a) Each indemnity of the Issuer contained in this agreement is a
continuing obligation of the Issuer, despite:
(1) any settlement of account; or
(2) the occurrence of any other thing,
and remains in full force and effect until:
(3) all moneys owing, contingently or otherwise, under any
of the Material Documents have been paid in full;
(4) the Outstanding Moneys are fully and finally repaid.
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(b) Each indemnity of the Issuer contained in this agreement is an
additional, separate and independent obligation of the Issuer
and no one indemnity limits the generality of any other
indemnity.
(c) Each indemnity of the Issuer contained in this agreement
survives the termination of any Transaction Document.
(d) A certificate under the hand of an Officer of the OF Manager
detailing the amount of any damage, loss, liability, cost,
charge, expense, outgoing or payment covered by any indemnity
in this agreement is sufficient evidence unless the contrary
is proved.
12.3 FUNDS AVAILABLE FOR INDEMNITY
The obligations of the Issuer under this clause 12 shall be payable
solely to the extent that funds are available from time to time for
that purpose under clause 6 of the Supplementary Bond Terms.
12.4 NEGLIGENCE, WILFUL DEFAULT OR BREACH OF LAW
The indemnities in this clause 12 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 other parties to this agreement.
12.5 NOTIFICATION FROM NOTE HOLDER OR OF MANAGER
If the Note Holder or the OF Manager 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 would be required
to indemnify it under this clause 12, the Note Holder or the OF
Manager (as the case may be) will notify the Issuer 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 this clause 12 unless the Issuer has been prejudiced in
any material respect by such failure.
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13 TAX, COSTS AND EXPENSES
13.1 TAX
(a) The Issuer must and the SF Manager must cause the Issuer to
pay any Tax, other than an Excluded Tax in respect of the
Securitisation Fund, in respect of the execution, delivery,
performance, release, discharge, amendment, enforcement or
attempted enforcement or otherwise in respect of any of the
following:
(1) any Material Document;
(2) any agreement or document entered into or signed under
any Material Document; and
(3) any transaction contemplated under any Material Document
or any agreement or document described in clause
13.1(a)(2).
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(b) The Issuer must and the SF Manager must cause the Issuer to
pay any fine, penalty or other cost in respect of a failure to
pay any Tax described in clause 13.1(a) except to the extent
that the fine, penalty or other cost is caused by the Note
Holder's failure to lodge money received from the Issuer
before the due date for lodgement.
(c) The Issuer indemnifies out of the property of the
Securitisation Fund the Note Holder against any amount payable
under clause 13.1(a) or 13.1(b) or both.
13.2 COSTS AND EXPENSES
The Issuer must and the SF Manager must cause the Issuer to pay all
costs and expenses of the Note Holder and the OF Manager and any
employee, Officer, agent or contractor of the Note Holder and the OF
Manager in relation to:
(a) the negotiation, preparation, execution, delivery, stamping,
registration, completion, variation and discharge of any
Material Document or any agreement or document described in
clause 13.1(a);
(b) the enforcement, protection or waiver, or attempted
enforcement or protection, of any rights under any Material
Document or any agreement or document described in clause
13.1(a),
(c) the consent or approval of the Note Holder or OF Manager given
under any Material Document or any agreement or document
described in clause 13.1(a); and
(d) any enquiry by any Governmental Agency involving a Transaction
Party,
including, but not limited to, any administration costs of the Note
Holder or the OF Manager, as the case may be, in connection with the
matters referred to in clause 13.2(b) and (d) and any legal costs
and expenses (charged at the usual commercial rates of the relevant
legal services provider) and any professional consultant's fees for
any of the above on a full indemnity basis.
13.3 GOODS AND SERVICES TAX
(a) Subject to clause 13.3(b), all amounts referred to in this
agreement which are relevant in determining a payment to be
made by one party to another are exclusive of GST unless
specifically indicated otherwise.
(b) If a party to this agreement is entitled to be indemnified or
reimbursed for any cost or expense incurred by that party,
then the indemnity or reimbursement will be calculated by
reference to the GST-exclusive amount of that cost or expense,
increased by an amount equal to that part of the cost or
expense for which the party or its representative member is
not entitled to an input tax credit but would be entitled if
that entity was entitled to a full input tax credit. For the
avoidance of doubt, the amount calculated under this clause
13.3(b) is a GST-exclusive amount.
(c) If GST is levied or imposed on or in respect of any supply
made under or in connection with this agreement for which the
consideration is a monetary payment, then the consideration
provided for that supply is increased by an amount equal to
the consideration multiplied by the rate at which that GST is
levied or imposed. This additional amount is payable to
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the party with the liability to remit GST in the manner and at
the time when the consideration to which it relates is
payable.
(d) The recipient of any consideration for a taxable supply
(whether in money or otherwise) must provide to the other
party a GST tax invoice (or any other thing required under any
legislation concerned with GST) in the form required by the A
New Tax System (Goods and Services Tax) ▇▇▇ ▇▇▇▇ or that other
legislation.
(e) Where an "adjustment event", as defined in the A New Tax
System (Goods and Services Tax) ▇▇▇ ▇▇▇▇ occurs under this
Agreement, the parties shall do all things necessary to ensure
that the adjustment event may be appropriately recognised,
including the issue of an "adjustment note", as that term is
defined in that Act.
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14 INTEREST ON OVERDUE AMOUNTS
14.1 PAYMENT OF INTEREST
The Issuer must and the SF Manager must cause the Issuer to pay
interest on:
(a) any of the Outstanding Moneys due and payable, but unpaid; and
(b) on any interest payable but unpaid in accordance with clause
5.
14.2 ACCRUAL OF INTEREST
The interest payable under this clause 14:
(a) accrues from day to day from and including the due date for
payment up to the actual date of payment, before and, as an
additional and independent obligation, after any judgment or
other thing into which the liability to pay the Outstanding
Moneys becomes merged; and
(b) may be capitalised by the Note Holder on any relevant Payment
Date.
14.3 RATE OF INTEREST
The rate of interest payable under this clause 14 on any part of the
Outstanding Moneys is the higher of:
(a) the Overdue Rate; and
(b) the rate fixed or payable under a judgment or other thing
referred to in clause 14.2(a).
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15 ASSIGNMENT
15.1 ASSIGNMENT BY TRANSACTION PARTY
A Transaction Party must not transfer or assign any of its rights or
obligations under any Material Document without the prior written
consent of the OF Manager, the Note Holder and each Designated
Rating Agency.
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15.2 ASSIGNMENT BY NOTE HOLDER AND OF MANAGER
Neither the Note Holder nor the OF Manager may assign any of its
rights or transfer by novation any of its rights and obligations
under this agreement without the prior written consent of the other
parties. Any such assignment must contain an acknowledgement that
the assignee is bound by the provisions of this agreement
15.3 ASSIST TRANSFER OR ASSIGNMENT
At the request of the Note Holder or OF Manager, the Issuer and the
SF Manager must do any thing including, but not limited to,
executing any documents or amending any Material Document, to effect
any transfer or assignment under this clause 15.
15.4 PARTICIPATION PERMITTED
The Note Holder and OF Manager may grant by way of sub-participation
(being a right to share in the financial effects of this agreement,
without any rights against the Issuer) all or part of the Note
Holder's or OF Manager's, as the case may be, rights and benefits
under this agreement to any other person without having to obtain
the consent of or to notify the Issuer or the SF Manager.
15.5 LENDING OFFICE
(a) The Note Holder may change its Lending Office at any time.
(b) The Note Holder must promptly notify the Issuer and the SF
Manager of any such change.
15.6 DISCLOSURE
Any party may disclose to a proposed assignee, transferee or
sub-participant any information relating to any other party or the
Transaction Documents whether or not confidential and whether or not
the disclosure would be in breach of any law or of any duty owed to
that other party.
15.7 NO INCREASE IN COSTS
If the Note Holder or OF Manager assigns or transfers any of its
rights or obligations under any Material Document or changes its
Lending Office the Issuer is not required to pay any net increase in
the aggregate amount of costs, Taxes, fees or charges which:
(a) are a direct consequence of the transfer or assignment or
change of Lending Office; and
(b) the Note Holder or OF Manager as the case may be, or its
transferee or assignee was aware of or ought reasonably to
have been aware of, at the time of the transfer or assignment
or change of Lending Office.
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16 GENERAL
16.1 CONFIDENTIAL INFORMATION
The Note Holder and OF Manager may, for the purpose of exercising
any Power, disclose to any person any documents or records of, or
information about, any Transaction Document, or the assets, business
or affairs of any Transaction Party, whether or not confidential and
whether or not the disclosure would be in breach of any law or of
any duty owed to any Transaction Party.
16.2 PERFORMANCE BY NOTE HOLDER OF OBLIGATIONS
If a Transaction Party defaults in fully and punctually performing
any obligation contained or implied in any Transaction Document, the
Note Holder and OF Manager may, without prejudice to any Power do
all things necessary or desirable, in the opinion of the Note Holder
or OF Manager, as the case may be, to make good or attempt to make
good that default to the satisfaction of the Note Holder or OF
Manager, as the case may be.
16.3 TRANSACTION PARTY TO BEAR COST
Without prejudice to clause 11, any thing which must be done by a
Transaction Party under any Material Document, whether or not at the
request of the Note Holder or OF Manager, must be done at the cost
of the Transaction Party.
16.4 NOTICES
(a) Any notice or other communication including, but not limited
to, any request, demand, consent or approval, to or by a party
to any Material Document:
(1) must be in legible writing and in English addressed as
shown below (or if sent by facsimile, to the facsimile
numbers below) and marked to the attention of the
following:
(A) if to the Note Holder:
Address: ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇
Attention: Head of Debt Markets / Manager -
Securitisation
Facsimile: (▇▇) ▇▇▇▇ ▇▇▇▇; and
(B) if to the Issuer:
Address: ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇
Attention: Head of Debt Markets / Manager -
Securitisation
Facsimile: (▇▇) ▇▇▇▇ ▇▇▇▇
(C) if to the SF Manager:
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Address: ▇▇▇▇▇ ▇▇,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇
Attention: Manager - Capital Markets
Facsimile: (▇▇) ▇▇▇▇ ▇▇▇▇; and
(D) if to the OF Manager:
Address: ▇▇▇▇▇ ▇▇,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇
Attention: Manager - Capital Markets
Facsimile: (▇▇) ▇▇▇▇ ▇▇▇▇;
or as specified to the sender by any party by notice;
(2) where the sender is a company, must be signed by an
Officer or under the common seal of the sender;
(3) is regarded as being given by the sender and received by
the addressee:
(A) if by delivery in person, when delivered to the
addressee;
(B) if by post, on delivery to the addressee; or
(C) if by facsimile transmission, as long as it is
legibly received, when transmitted to the
addressee,
but if the delivery or receipt is on a day which is not
a Business Day or is after 4.00 pm (addressee's time) it
is regarded as received at 9.00 am on the following
Business Day;
(4) can be relied upon by the addressee and the addressee is
not liable to any other person for any consequences of
that reliance if the addressee believes it to be
genuine, correct and authorised by the sender; and
(5) if to the Note Holder must be copied to the OF Manager
and if to the Issuer must be copied to the SF Manager.
(b) A facsimile transmission is regarded as legible unless the
addressee telephones the sender within 2 hours after the
transmission is received or regarded as received under clause
16.4(a)(3) and informs the sender that it is not legible.
(c) In this clause 16.4, a reference to an addressee includes a
reference to an addressee's Officers, agents or employees.
16.5 GOVERNING LAW AND JURISDICTION
(a) This agreement is governed by the laws of New South Wales.
(b) The parties irrevocably submit to the non-exclusive
jurisdiction of the courts of New South Wales.
--------------------------------------------------------------------------------
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Top-up Funding Facility Agreement - SMHL Global Fund [ ]-[ ]
16.6 PROHIBITION AND ENFORCEABILITY
(a) Any provision of, or the application of any provision of, any
Material Document or any Power which is prohibited in any
jurisdiction is, in that jurisdiction, ineffective only to the
extent of that prohibition.
(b) Any provision of, or the application of any provision of, any
Material Document which is void, illegal or unenforceable in
any jurisdiction does not affect the validity, legality or
enforceability of that provision in any other jurisdiction or
of the remaining provisions in that or any other jurisdiction.
16.7 WAIVERS
(a) Waiver of any right arising from a breach of this agreement
or of any Power arising upon default under this agreement or
upon the occurrence of an Event of Default must be in writing
and signed by the party granting the waiver.
(b) A failure or delay in exercise, or partial exercise, of:
(1) a right arising from a breach of this agreement or the
occurrence of an Event of Default; or
(2) a Power created or arising upon default under this
agreement or upon the occurrence of an Event of Default,
does not result in a waiver of that right or Power.
(c) A party is not entitled to rely on a delay in the exercise or
non-exercise of a right or Power arising from a breach of this
agreement or on a default under this agreement or on the
occurrence of an Event of Default as constituting a waiver of
that right or Power.
(d) A party may not rely on any conduct of another party as a
defence to exercise of a right or Power by that other party.
(e) This clause may not itself be waived except by writing.
16.8 VARIATION
A variation of any term of this agreement must be in writing and
signed by the parties.
16.9 CUMULATIVE RIGHTS
The Powers are cumulative and do not exclude any other right, power,
authority, discretion or remedy of the Note Holder or OF Manager.
16.10 ATTORNEYS
Each of the Attorneys executing this agreement states that the
Attorney has no notice of the revocation of the power of attorney
appointing that Attorney.
16.11 BINDING OBLIGATIONS
Each party to this agreement acknowledges that the obligations
expressed in this agreement are binding upon it.
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Top-up Funding Facility Agreement - SMHL Global Fund [ ]-[ ]
16.12 WINDING UP OF SECURITISATION FUND
Prior to the Termination date, neither the Note Holder nor the OF
Manager may seek to terminate or wind up the Securitisation Fund as
a consequence of any breach of this agreement or any Note by the
Issuer or the SF Manager.
16.13 TERMINATION CLAUSE
This agreement can only be terminated on or after the Termination
Date.
16.14 COUNTERPARTS
(a) This agreement may be executed in any number of counterparts.
(b) All counterparts, taken together, constitute 1 instrument.
(c) A party may execute this agreement by signing any counterpart.
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Top-up Funding Facility Agreement - SMHL Global Fund [ ]-[ ]
--------------------------------------------------------------------------------
SCHEDULE 1 - FUNDING NOTICE (CLAUSE 4.2)
TO: PERPETUAL LIMITED
in its capacity as trustee of the Origination Fund
(NOTE HOLDER)
Attention: Head of Debt Markets/Manager - Securitisation
AND: ME PORTFOLIO MANAGEMENT LIMITED
in its capacity as manager of the Origination Fund
(OF MANAGER)
Attention: Manager - Capital Markets
--------------------------------------------------------------------------------
We refer to the Top-up Funding Facility Agreement dated [INSERT DATE]
(AGREEMENT). Pursuant to clause 4 of the Agreement:
(a) We give you notice that we require the Issuer to issue to the Note Holder
a Note from SMHL Global Fund [ ]-[ ] on [INSERT DATE] (FUNDING DATE) at
[INSERT DATE];
(b) The aggregate principal amount of the Note is: $[INSERT AMOUNT];
(c) The relevant Payment Period is a [Quarterly/Monthly] Payment Period
commencing on the Funding Date;
(d) We request that the proceeds be remitted to account number [INSERT
DETAILS] at [INSERT ADDRESS]/[INSERT ALTERNATIVE INSTRUCTIONS].
Expressions defined in the Agreement have the same meaning when used in this
Funding Notice.
DATED: [INSERT DATE]
SIGNED for and on behalf of
ME PORTFOLIO MANAGEMENT LIMITED
------------------------------------------------
Officer's signature
------------------------------------------------
Name (please print)
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Top-up Funding Facility Agreement - SMHL Global Fund [ ]-[ ]
--------------------------------------------------------------------------------
SCHEDULE 2 - CONDITIONS
TOP-UP FUNDING FACILITY AGREEMENT - SMHL GLOBAL FUND [ ]-[]
PERPETUAL LIMITED
(ABN 86 ▇▇▇ ▇▇▇ ▇▇▇)
IN ITS CAPACITY AS TRUSTEE OF THE SMHL GLOBAL FUND [ ]-[]
of ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇
(ISSUER)
whose office for the purposes of payment is at ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ or such other address as the Issuer may notify to the
Note Holder from time to time.
--------------------------------------------------------------------------------
1 NOTE
(a) This Note certificate is issued as part of the Notes of SMHL Global Fund [
]-[ ]. The terms and conditions of the issue of this Note and repayment
are constituted by this Note and the Top-up Funding Facility Agreement for
the Issue and Repayment of Notes - SMHL Global Fund [ ]-[ ] dated [INSERT
date] between the Issuer, the Note Holder, ME Portfolio Management Limited
(ABN 79 005 964 134) of ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
in its capacity as manager of the Securitisation Fund (SF MANAGER) and ME
Portfolio Management Limited (ABN 79 005 964 134) of ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ in its capacity as manager of the Origination
Fund (OF MANAGER) (AGREEMENT). Terms defined in the Agreement have the
same meaning when used in these Conditions.
(b) Subject to clause 3, the Issuer promises to repay the Note Holder in
accordance with the Agreement.
(c) This Note may only be assigned or transferred with the prior written
consent of the Issuer and subject to and in accordance with the Agreement.
2 DERIVATION OF PAYMENT
The parties acknowledge that the payments to be made by the Issuer under
this Note are derived by it from the receipts from a "mortgage" or "pool
of mortgages", as those terms are defined in section 3 of the Duties ▇▇▇
▇▇▇▇ (Vic).
3 EXTENT OF LIABILITY OF ISSUER
(a) Clause 26 of the Master Trust Deed applies to the obligations and
liabilities of the Issuer and SF Manager under this Note.
(b) The Issuer issues this Note in its capacity as trustee of the
Securitisation Fund and no other capacity (except where the Transaction
Documents provide otherwise). Subject to
--------------------------------------------------------------------------------
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Top-up Funding Facility Agreement - SMHL Global Fund [ ]-[ ]
clause 3(d), a liability of the Issuer arising under or in connection with
this Note or the Agreement or the Securitisation Fund is limited to and
can be enforced against the Issuer only to the extent to which it can be
satisfied out of the assets and property of the Securitisation Fund which
are available to satisfy the right of the Trustee to be exonerated or
indemnified for the liability. This limitation of the Issuer's liability
applies despite any other provision of this Note or the Agreement and
extends to all liabilities and obligations of the Issuer in any way
connected with any representation, warranty, conduct, omission, agreement
or transaction related to this Note or the Agreement or the Securitisation
Fund.
(c) Subject to clause 3(d), no person (including any Relevant Party) may take
action against the Issuer in any capacity other than as trustee of the
Securitisation Fund or seek the appointment of a receiver (except under
the Security Trust Deed), or a liquidator, an administrator or any similar
person to the Issuer or prove in any liquidation, administration or
arrangement of or affecting the Issuer except in relation to the assets of
the Securitisation Fund.
(d) The provisions of this clause 3 shall not apply to any obligation or
liability of the Issuer to the extent that it is not satisfied because
under a Transaction Document or by operation of law there is a reduction
in the extent of the Issuer's indemnification or exoneration out of the
assets of the Securitisation Fund Issuer, as a result of the Issuer's
fraud, negligence or wilful default.
(e) It is acknowledged that the Relevant Parties are responsible under this
Note, the Agreement or the other Transaction Documents for performing a
variety of obligations relating to the Securitisation Fund. No act or
omission of the Issuer (including any related failure to satisfy its
obligations under this Note or the Agreement) will be considered fraud,
negligence or wilful default of the Issuer for the purposes of clause 3(d)
to the extent to which the act or omission was caused or contributed to by
any failure by any Relevant Party or any other person who has been
delegated or appointed by the Issuer in accordance with the Transaction
Documents to fulfil its obligations relating to the Securitisation Fund or
by any other act or omission of a Relevant Party or any other person.
(f) No attorney, agent, receiver or receiver and manager appointed in
accordance with this Note or the Agreement or any other Transaction
Document has authority to act on behalf of the Issuer in a way which
exposes the Issuer to any personal liability and no act or omission of any
such person will be considered fraud, negligence or wilful default of the
Issuer for the purposes of clause 3(d).
(g) In this clause 3, RELEVANT PARTIES means any party to a Transaction
Document other than the Issuer.
(h) The Issuer is not obliged to do or refrain from doing anything under this
Note or the Agreement (including incur any liability) unless the Issuer's
liability is limited in the same manner as set out in clauses 3(b) to
3(f).
4 EXTENT OF LIABILITY OF NOTE HOLDER
(a) Clause 26 of the Master Trust Deed applies to the obligations and
liabilities of the Note Holder and OF Manager under this Note.
(b) The Note Holder issues this Note only in its capacity as trustee of the
Origination Fund and no other capacity. A liability arising under or in
connection with this Note or the Agreement is limited to and can be
enforced against the Note Holder only to the extent to which it can be
satisfied out of property of the Origination Fund out of which the Note
Holder is actually indemnified for the liability. This limitation of the
Note Holder's
--------------------------------------------------------------------------------
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Top-up Funding Facility Agreement - SMHL Global Fund [ ]-[ ]
liability applies despite any other provision of this Note or the
Agreement and extends to all liabilities and obligations of the Note
Holder in any way connected with any representation, warranty, conduct,
omission, agreement or transaction related to this Note or the Agreement.
(c) The parties other than the Note Holder may not take action against the
Note Holder in any capacity other than as trustee of the Origination Fund
or seek the appointment of a receiver (except in relation to property of
the Origination Fund), a liquidator, an administrator or any similar
person to the Note Holder or prove in any liquidation, administration or
arrangement of or affecting the Note Holder (except in relation to
property of the Origination Fund).
(d) The provisions of this clause 4 shall not apply to any obligation or
liability of the Note Holder to the extent that it is not satisfied
because under the trust deed establishing the Origination Fund or by
operation of law there is a reduction in the extent of the Note Holder's
indemnification out of the assets of the Origination Fund, as a result of
the Note Holder's fraud, negligence or wilful default.
(e) It is acknowledged that the OF Manager is responsible under the trust deed
establishing the Origination Fund for performing a variety of obligations
relating to the Origination Fund, including under this Note and the
Agreement. No act or omission of the Note Holder (including any related
failure to satisfy its obligations or breach of representation or warranty
under this Note or the Agreement) will be considered fraud, negligence or
wilful default of the Note Holder for the purposes of clause 4(d) to the
extent to which the act or omission was caused or contributed to by any
failure by the OF Manager or any other person to fulfil its obligations
relating to the Origination Fund or by any other act or omission of the OF
Manager or any other person.
(f) No attorney, agent, receiver or receiver and manager appointed in
accordance with this Note or the Agreement has authority to act on behalf
of the Note Holder in a way which exposes the Note Holder to any personal
liability and no act or omission of any such person will be considered
fraud, negligence or wilful default of the Note Holder for the purposes of
clause 4(d).
(g) The Note Holder is not obliged to do or refrain from doing anything under
this Note or the Agreement (including incur any liability) unless the Note
Holder's liability is limited in the same manner as set out in clauses
4(b) to 4(f).
5 WILFUL DEFAULT OF THE ISSUER AND THE NOTE HOLDER
For the purposes of this Note the expression "wilful default":
(a) in relation to the Issuer and the Note Holder, means a wilful default of
this Note and the Agreement by the Issuer or the Note Holder, as the case
may be,
(1) other than a default which:
(A) arises out of a breach of a Transaction Document by a person
other than the Issuer or the Note Holder or any person
referred to in clause 5(b) in relation to the Issuer or the
Note Holder;
(B) arises because some other act or omission is a precondition to
the relevant act or omission of the Issuer or the Note Holder,
and that other act or omission does not occur;
(C) is in accordance with a lawful court order or direction or is
required by law; or
--------------------------------------------------------------------------------
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Top-up Funding Facility Agreement - SMHL Global Fund [ ]-[ ]
(D) is in accordance with an instruction or direction given to it
by any person in circumstances where that person is authorised
to do so by any Transaction Document; and
(2) in circumstances where had it not committed that default it would
have been entitled to recoupment, reimbursement or a right of
indemnity for its costs and expenses (if any) in complying with this
Note and the Agreement from the Fund.
(b) A reference to the "fraud", "negligence" or "wilful default" of the Issuer
or the Note Holder means the fraud, negligence or wilful default of the
Issuer or the Note Holder, as the case may be, and of the officers or
employees but not the agents or delegates of the Issuer or the Note
Holder, unless the Issuer or the Note Holder is liable for the acts or
omissions of such other person under the terms of this Note and the
Agreement.
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Top-up Funding Facility Agreement - SMHL Global Fund [ ]-[ ]
--------------------------------------------------------------------------------
SCHEDULE 3 - REPORT ON ASSESSMENT OF COMPLIANCE WITH REGULATION
AB SERVICING CRITERIA
ME Portfolio Management Limited
▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
[________________] (the "ASSERTING PARTY") is responsible for assessing
compliance as of June 30, [ ] and for the period from [ ]
(date of issuance of SMHL Global Fund [ ]-[ ]) through June 30, [ ] (the
"REPORTING PERIOD") with the servicing criteria set forth in Section 229.1122(d)
of the Code of Federal Regulations (the "CFR"), except for criteria
229.1122(d)[insert section numbers in Regulation AB that are not applicable to
Asserting Party] of the CFR, which have not been determined pursuant to the
transaction documents for the SMHL Global Fund [ ]-[ ] to be, and the
Asserting Party has concluded are not, servicing criteria that the Asserting
Party performs, or in which the Asserting Party participates, in relation to
SMHL Global Fund [ ]-[ ] (the "APPLICABLE SERVICING CRITERIA"). This
assessment of compliance is provided in relation to SMHL Global Fund [ ]-[ ].
The Asserting Party has assessed its compliance with the Applicable Servicing
Criteria for the Reporting Period and has concluded that the Asserting Party has
complied, in all material respects, with the Applicable Servicing Criteria in
relation to SMHL Global Fund [ ]-[ ].
[____________], an independent registered public accounting firm, has issued an
attestation report on the assessment of compliance with the Applicable Servicing
Criteria for the Reporting Period as set forth in this assertion.
[NAME OF ASSERTING PARTY]
Date:
-----------------------------------
By:
Name:
-----------------------------------
Title:
-----------------------------------
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Top-up Funding Facility Agreement - SMHL Global Fund [ ]-[ ]
SCHEDULE 4 - SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
--------------------------------------------------------------------------------------------------
SERVICING CRITERIA APPLICABLE
SERVICING
CRITERIA
--------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
--------------------------------------------------------------------------------------------------
GENERAL SERVICING CONSIDERATIONS
--------------------------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance
or other triggers and events of default in accordance with the
transaction agreements.
--------------------------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to third
parties, policies and procedures are instituted to monitor the
third party's performance and compliance with such servicing
activities.
--------------------------------------------------------------------------------------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a
back-up servicer for the mortgage loans are maintained.
--------------------------------------------------------------------------------------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on
the party participating in the servicing function throughout the
reporting period in the amount of coverage required by and
otherwise in accordance with the terms of the transaction
agreements.
--------------------------------------------------------------------------------------------------
CASH COLLECTION AND ADMINISTRATION
--------------------------------------------------------------------------------------------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate
custodial bank accounts and related bank clearing accounts no
more than two business days following receipt, or such other
number of days specified in the transaction agreements.
--------------------------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or
to an investor are made only by authorized personnel.
--------------------------------------------------------------------------------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows
or distributions, and any interest or other fees charged for such
advances, are made, reviewed and approved as specified in the
transaction agreements.
--------------------------------------------------------------------------------------------------
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve
accounts or accounts established as a form of
overcollateralization, are separately maintained (e.g., with
respect to commingling of cash) as set forth in the transaction
agreements.
--------------------------------------------------------------------------------------------------
1122(d)(2)(v) Each custodial account is maintained at a federally insured
depository institution as set forth in the
--------------------------------------------------------------------------------------------------
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Top-up Funding Facility Agreement - SMHL Global Fund [ ]-[ ]
--------------------------------------------------------------------------------------------------
SERVICING CRITERIA APPLICABLE
SERVICING
CRITERIA
--------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
--------------------------------------------------------------------------------------------------
transaction agreements. For purposes of this criterion, "federally
insured depository institution" with respect to a foreign financial
institution means a foreign financial institution that meets the
requirements of Rule 13k-1(b)(1) of the Securities Exchange Act.
--------------------------------------------------------------------------------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized
access.
--------------------------------------------------------------------------------------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all
asset-backed securities related bank accounts, including
custodial accounts and related bank clearing accounts. These
reconciliations are (A) mathematically accurate; (B) prepared
within 30 calendar days after the bank statement cutoff date, or
such other number of days specified in the transaction
agreements; (C) reviewed and approved by someone other than the
person who prepared the reconciliation; and (D) contain
explanations for reconciling items. These reconciling items are
resolved within 90 calendar days of their original
identification, or such other number of days specified in the
transaction agreements.
--------------------------------------------------------------------------------------------------
INVESTOR REMITTANCES AND REPORTING
--------------------------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those to be filed with the
Commission, are maintained in accordance with the transaction
agreements and applicable Commission requirements. Specifically,
such reports (A) are prepared in accordance with timeframes and
other terms set forth in the transaction agreements; (B) provide
information calculated in accordance with the terms specified in
the transaction agreements; (C) are filed with the Commission as
required by its rules and regulations; and (D) agree with
investors' or the trustee's records as to the total unpaid
principal balance and number of mortgage loans serviced by the
Servicer.
--------------------------------------------------------------------------------------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance
with timeframes, distribution priority and other terms set forth
in the transaction agreements.
--------------------------------------------------------------------------------------------------
1122(d)(3)(iii) Disbursements made to an investor are posted within two business
days to the Servicer's investor records, or such other number of
days specified in the transaction agreements.
--------------------------------------------------------------------------------------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with
cancelled checks, or other form of payment,
--------------------------------------------------------------------------------------------------
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Top-up Funding Facility Agreement - SMHL Global Fund [ ]-[ ]
--------------------------------------------------------------------------------------------------
SERVICING CRITERIA APPLICABLE
SERVICING
CRITERIA
--------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
--------------------------------------------------------------------------------------------------
or custodial bank statements.
--------------------------------------------------------------------------------------------------
POOL ASSET ADMINISTRATION
--------------------------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as
required by the transaction agreements or related mortgage loan
documents.
--------------------------------------------------------------------------------------------------
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required
by the transaction agreements
--------------------------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are
made, reviewed and approved in accordance with any conditions or
requirements in the transaction agreements.
--------------------------------------------------------------------------------------------------
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in
accordance with the related mortgage loan documents are posted to
the Servicer's obligor records maintained no more than two
business days after receipt, or such other number of days
specified in the transaction agreements, and allocated to
principal, interest or other items (e.g., escrow) in accordance
with the related mortgage loan documents.
--------------------------------------------------------------------------------------------------
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with
the Servicer's records with respect to an obligor's unpaid
principal balance.
--------------------------------------------------------------------------------------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's
mortgage loans (e.g., loan modifications or re-agings) are made,
reviewed and approved by authorized personnel in accordance with
the transaction agreements and related pool asset documents.
--------------------------------------------------------------------------------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans,
modifications and deeds in lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated, conducted and
concluded in accordance with the timeframes or other requirements
established by the transaction agreements.
--------------------------------------------------------------------------------------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained during the
period a mortgage loan is delinquent in accordance with the
transaction agreements. Such records are maintained on at least a
monthly basis, or such other period specified in the transaction
agreements, and describe the entity's activities in monitoring
delinquent mortgage loans including, for example, phone calls,
letters and payment rescheduling plans in cases where delinquency
is deemed temporary
--------------------------------------------------------------------------------------------------
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Top-up Funding Facility Agreement - SMHL Global Fund [ ]-[ ]
--------------------------------------------------------------------------------------------------
SERVICING CRITERIA APPLICABLE
SERVICING
CRITERIA
--------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
--------------------------------------------------------------------------------------------------
(e.g., illness or unemployment).
--------------------------------------------------------------------------------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage
loans with variable rates are computed based on the related
mortgage loan documents.
--------------------------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow
accounts): (A) such funds are analyzed, in accordance with the
obligor's mortgage loan documents, on at least an annual basis,
or such other period specified in the transaction agreements; (B)
interest on such funds is paid, or credited, to obligors in
accordance with applicable mortgage loan documents and state
laws; and (C) such funds are returned to the obligor within 30
calendar days of full repayment of the related mortgage loans, or
such other number of days specified in the transaction agreements.
--------------------------------------------------------------------------------------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance
payments) are made on or before the related penalty or expiration
dates, as indicated on the appropriate bills or notices for such
payments, provided that such support has been received by the
servicer at least 30 calendar days prior to these dates, or such
other number of days specified in the transaction agreements.
--------------------------------------------------------------------------------------------------
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be
made on behalf of an obligor are paid from the servicer's funds
and not charged to the obligor, unless the late payment was due
to the obligor's error or omission.
--------------------------------------------------------------------------------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two
business days to the obligor's records maintained by the
servicer, or such other number of days specified in the
transaction agreements.
--------------------------------------------------------------------------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction
agreements.
--------------------------------------------------------------------------------------------------
1122(d)(4)(xv) Any external enhancement or other support, identified in Item
1114(a)(1) through (3) or Item 1115 of Regulation AB, is
maintained as set forth in the transaction agreements.
--------------------------------------------------------------------------------------------------
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Top-up Funding Facility Agreement - SMHL Global Fund [ ]-[ ]
--------------------------------------------------------------------------------
EXECUTED AS AN AGREEMENT:
ISSUER:
SIGNED for
PERPETUAL LIMITED
by its attorney in
the presence of:
----------------------------------- --------------------------------
Witness Attorney
----------------------------------- --------------------------------
Name (please print) Name (please print)
NOTE HOLDER:
SIGNED for
PERPETUAL LIMITED
by its attorney in
the presence of:
----------------------------------- --------------------------------
Witness Attorney
----------------------------------- --------------------------------
Name (please print) Name (please print)
--------------------------------------------------------------------------------
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Top-up Funding Facility Agreement - SMHL Global Fund [ ]-[ ]
SF MANAGER:
SIGNED for
ME PORTFOLIO MANAGEMENT LIMITED
by its attorney in
the presence of:
----------------------------------- --------------------------------
Witness Attorney
----------------------------------- --------------------------------
Name (please print) Name (please print)
OF MANAGER:
SIGNED for
ME PORTFOLIO MANAGEMENT LIMITED
by its attorney in
the presence of:
----------------------------------- --------------------------------
Witness Attorney
----------------------------------- --------------------------------
Name (please print) Name (please print)
--------------------------------------------------------------------------------
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