EXHIBIT 10.2
Draft: 9 March 2000
Series 2000-1G Medallion Trust
Liquidity Facility Agreement
Date:
Commonwealth Bank of Australia
Liquidity Facility Provider
Perpetual Trustee Company Limited
Trustee
Securitisation Advisory Services Pty. Limited
Manager
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Lawyers
Levels 27-35
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(C)Copyright ▇▇▇▇▇▇▇ ▇▇▇
Liability is limited by the Solicitors Scheme under the Professional Standards
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TABLE OF CONTENTS
Clause Page
1. INTERPRETATION 1
1.1 Definitions 1
1.2 Series Supplement and Master Trust Deed Definitions 4
1.3 Interpretation 4
1.4 Trustee Capacity 5
1.5 Master Trust Deed and Series Supplement 6
1.6 Incorporated Definitions and other Transaction Documents and provisions 6
2. THE FACILITY 6
2.1 Amount 6
2.2 Method of Making Advances 6
2.3 Purpose 6
2.4 Termination of the Facility 6
3. CONDITIONS PRECEDENT 6
3.1 Conditions Precedent to first Advance 6
3.2 Conditions Precedent to all Advances 7
4. DRAWDOWN 7
4.1 Preparation of Drawdown Notices 7
4.2 Service of Drawdown Notices 7
4.3 Requirements of Drawdown Notices 7
4.4 Availability of Drawing 8
4.5 Payment of Drawing 8
5. INTEREST 8
5.1 Interest Period 8
5.2 Calculation of Interest 9
5.3 Payment of Interest 9
5.4 Interest on Unpaid Interest 9
5.5 Interest on Overdue Sums 9
6. REPAYMENT OF DRAWINGS AND ADVANCES 9
6.1 Repayment of Drawings during the Availability Period 9
6.2 Re-Drawing 9
6.3 Repayment on Termination 9
6.4 Payments Under Security Trust Deed 10
7. CASH ADVANCE DEPOSIT PERIOD 10
7.1 Cash Advance Deposit Upon Ratings Downgrade 10
7.2 Withdrawal from the Collections Account 10
7.3 Drawings During the Cash Advance Deposit Period 10
7.4 Liquidity Facility Provider Upgrade 11
7.5 Reduction in Facility Limit During Cash Advance Deposit Period 11
7.6 Termination of Agreement 11
7.7 Interest on Cash Advance Deposit 11
8. PAYMENTS 11
8.1 Time on Due Date and Free of Set-off & Taxes 11
8.2 Certificate 11
(i)
TABLE OF CONTENTS
Clause Page
9. ILLEGALITY AND INCREASED COST 12
9.1 Illegality 12
9.2 Increased Cost 12
10. FEES 12
11. REPRESENTATIONS AND WARRANTIES 13
11.1 General Representations and Warranties 13
11.2 Corporate Representations and Warranties 13
11.3 Series Trust Representations and Warranties 13
11.4 Liquidity Facility Provider 14
11.5 Representations and Warranties Repeated 14
12. UNDERTAKINGS 14
12.1 General 14
12.2 Manager's Undertakings after Manager Event 15
12.3 Liquidity Facility Provider Undertaking 15
13. EVENTS OF DEFAULT 15
13.1 Events of Default 15
13.2 Consequences of Event of ▇▇▇▇▇▇▇ ▇▇
▇▇. TERMINATION BY TRUSTEE 16
14.1 Trustee may declare a Termination Date 16
14.2 Requirements for termination 16
15. TRUSTEE PROVISIONS 16
15.1 Limitation on Trustee's Liability 16
15.2 Claims against Trustee 17
15.3 Breach of Trust 17
15.4 Acts or omissions 17
15.5 No obligation 17
16. ASSIGNMENT 17
16.1 Assignment by Trustee 17
16.2 Assignment by Liquidity Facility Provider 17
17. NOTICES 18
17.1 Method of Delivery 18
17.2 Deemed Receipt 18
18. INDEMNITY 18
18.1 Indemnity on Demand 18
18.2 Losses on Liquidation or Re-employment of Deposits 19
18.3 Payment on Distribution Date 19
19. MISCELLANEOUS 19
19.1 Stamp Duties 19
(ii)
TABLE OF CONTENTS
Clause Page
19.2 Waiver 19
19.3 Written Waiver, Consent and Approval 19
19.4 Severability 20
19.5 Survival of Indemnities 20
19.6 Successors and Assigns 20
19.7 Moratorium Legislation 20
19.8 Amendments 20
19.9 Governing Law 20
19.10 Jurisdiction 20
19.11 Counterparts 21
SCHEDULE - FORM OF DRAWDOWN NOTICE 22
(iii)
THIS LIQUIDITY FACILITY AGREEMENT is made at Sydney on 2000
BETWEEN COMMONWEALTH BANK OF AUSTRALIA, ACN 123 123 124, a company
incorporated in the Australian Capital Territory and having an
office at ▇▇▇▇▇ ▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ (the
"Liquidity Facility Provider")
AND PERPETUAL TRUSTEE COMPANY LIMITED, ACN 000 001 007, a company
incorporated in the State of New South Wales and having an office
at ▇▇▇▇▇ ▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, in its capacity
as trustee of the Series 2000-1G Medallion Trust (the "Trustee")
AND SECURITISATION ADVISORY SERVICES PTY. LIMITED, ACN 064 133 946, a
company incorporated in the State of New South Wales and having an
office at ▇▇▇▇▇ ▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ("▇▇▇" and
also hereinafter included within the expression the "Manager")
RECITALS:
A. The Trustee and the Manager are respectively the trustee and the manager
of the Series Trust.
B. The Manager has requested the Liquidity Facility Provider to provide the
Trustee with the Facility in connection with the Approved Purpose.
C. The Liquidity Facility Provider has agreed to provide the Facility to the
Trustee on the terms and conditions contained in this Agreement.
THE PARTIES AGREE:
1. INTERPRETATION
1.1 Definitions
In this Agreement, unless the contrary intention appears:
"Advance" means the principal amount of each advance to the Trustee by
the Liquidity Facility Provider in accordance with this Agreement or so
much of each such advance as remains outstanding from time to time.
"Approved Purpose" means the use of a Drawing to meet an Income Shortfall
in accordance with the Series Supplement or to fund a Cash Advance
Deposit in accordance with this Agreement.
"Authorised Officer" in relation to the Liquidity Facility Provider means
any person from time to time appointed by the Liquidity Facility Provider
to act as its Authorised Officer for the purposes of this Agreement and
notified to the Trustee.
"Availability Period" means the period commencing on the date of this
Agreement and ending on the Termination Date.
"BBSW" in relation to an Interest Period means the rate appearing at
approximately 10.00 am on the first day of that Interest Period on the
Reuters Screen page "BBSW" as being the average of the mean buying and
selling rates appearing on that page for a ▇▇▇▇ of exchange having a
tenor of three months. If on the first day of an Interest Period fewer
than four banks are quoted on the Reuters Screen page "BBSW" or for any
other reason "BBSW" for an Interest Period cannot be determined in
accordance with the foregoing provisions, then "BBSW" for that Interest
Period means such rate as is specified by the Liquidity Facility Provider
having regard to comparable indices then available.
"Cash Advance Deposit" means at any time that amount of the Collections
Account of the Series Trust that comprises at that time Advances by way
of deposits by the Liquidity Facility Provider to the Collections Account
of the Series Trust in accordance with clause
1.
7.1 (after taking into account any application of the Cash Advance
Deposit in accordance with clause 7.3 or repayment of it in accordance
with either of clauses 7.4 or 7.5).
"Cash Advance Deposit Period" means each period commencing immediately
following a Cash Advance Deposit and ending on the date on which the
Trustee is obliged to repay to the Liquidity Facility Provider the Cash
Advance Deposit pursuant to clause 7.4.
"Designated Credit Rating" means a short term credit rating of A-1+ by
S&P, P1 by ▇▇▇▇▇'▇ and F1+ by Fitch IBCA or such other credit rating
agreed to between the Trustee, the Manager and the relevant Rating
Agency.
"Direct Advance" means an Advance by way of a deposit by the Liquidity
Facility Provider to the Collections Account of the Series Trust in
accordance with clause 4.5(a).
"Drawdown Date" means, in relation to a Drawing or proposed Drawing, the
Distribution Date immediately following the delivery of the corresponding
Drawdown Notice to the Liquidity Facility Provider in accordance with
this Agreement.
"Drawdown Notice" means a notice given under clause 4.
"Drawing" means:
(a) other than during the Cash Advance Deposit Period, a Direct
Advance or a proposed Direct Advance (as the case may be); and
(b) during the Cash Advance Deposit Period, a withdrawal or proposed
withdrawal (as the case may be) from the Cash Advance Deposit in
the Collections Account of the Series Trust by the Trustee in
accordance with clause 7.3.
"Effective Control" means:
(a) control of the composition of the board of directors of SAS;
(b) control of more than half of the voting power of SAS; or
(c) control of more than half of the issued share capital of SAS
excluding any part of such issued share capital which carries no
right to participate beyond a specified amount in the distribution
of either profit or capital.
"Event of Default" means any of the events set out or referred to in
clause 13.1 as an Event of Default.
"Facility" means the standby liquidity facility granted to the Trustee by
the Liquidity Facility Provider on the terms and conditions of this
Agreement.
"Facility Limit" means at any given time the least of the following:
(a) A$48 million;
(b) the Performing Mortgage Loans Amount at that time; and
(c) the amount from time to time agreed in writing between the
Manager, the Liquidity Facility Provider and the Rating Agencies.
"Interest Period" means each period determined in accordance with clause
5.1.
"Liquidity Amount" means, for a Drawdown Date, the lesser of:
(a) the then un-utilised portion of the Facility Limit or if the
Drawdown Date is during the Cash Advance Deposit Period, the then
un-utilised portion of the Cash Advance Deposit; and
(b) the Income Shortfall on the preceding Determination Date.
2.
"Manager" means SAS or if SAS retires or is removed as manager of the
Series Trust, any then Substitute Manager, and includes the Trustee when
acting as the manager of the Series Trust in accordance with the
provisions of the Master Trust Deed.
"Manager Event" means:
(a) SAS ceases to be a body over which the Liquidity Facility Provider
has Effective Control; or
(b) SAS ceases to be the manager of the Series Trust.
"Master Trust Deed" means the Master Trust Deed dated 8 October 1997
between the Trustee and SAS, as amended from time to time.
"Obligations" means all of the liabilities of the Trustee to the
Liquidity Facility Provider under this Agreement and, without limiting
the generality of the foregoing, includes any liabilities which:
(a) are liquidated;
(b) are present, prospective or contingent;
(c) relate to the payment of money or the performance or omission of
any act;
(d) sound in damages only; or
(e) accrue as a result of any Event of Default.
"Performing Mortgage Loans Amount" means at any time the aggregate of the
following:
(a) the amount outstanding under Mortgage Loans forming part of the
Assets of the Series Trust in relation to which no payment due
from the relevant Borrower has been in arrears by more than 90
days; and
(b) the amount outstanding under Mortgage Loans forming part of the
Assets of the Series Trust in relation to which a payment due from
the relevant Borrower has been in arrears by more than 90 days and
which are insured under a Mortgage Insurance Policy.
"Prescribed Rate" in relation to an Interest Period means the sum of:
(a) BBSW for that Interest Period; and
(b) 0.20% per annum,
or such rate as is otherwise agreed by the Trustee, the Manager and the
Liquidity Facility Provider provided that each Rating Agency is given not
less than 3 Business Days prior notice by the Manager of any variation to
the Prescribed Rate and the Prescribed Rate will not be varied if such
variation would result in a reduction, qualification or withdrawal by a
Rating Agency of its then current credit rating of a Security.
"Receiver" means a person appointed under or by virtue of the Security
Trust Deed as a receiver or receiver and manager.
"Series Supplement" means the Series Supplement dated on or about the
date of this Agreement between the Liquidity Facility Provider (as Seller
and Servicer), SAS and the Trustee.
"Series Trust" means the trust known as the Series 2000-1G Medallion
Trust established pursuant to the Master Trust Deed and the Series
Supplement.
"Specified Rate" means, on any day, the sum of:
3.
(a) BBSW for the Interest Period that includes that day (or if the day
is not within an Interest Period, BBSW for the first Business Day
of the month that includes that day as if that month were an
Interest Period); and
(b) 0.30 % per annum.
"Termination Date" means the earliest of:
(a) the Scheduled Maturity Date;
(b) the date declared or appointed by the Liquidity Facility Provider
or the Trustee to be the Termination Date in accordance with this
Agreement;
(c) the date which is one month after the date on which all Securities
have been redeemed in full in accordance with the Series
Supplement or the Class A-1 Note Conditions (as the case may be);
and
(d) the date on which the Facility Limit is reduced to zero in
accordance with this Agreement.
1.2 Series Supplement and Master Trust Deed Definitions
Subject to clause 1.6, unless defined in this Agreement, words and
phrases defined in either or both of the Master Trust Deed and the Series
Supplement have the same meaning in this Agreement. Where there is any
inconsistency in a definition between this Agreement (on the one hand)
and the Master Trust Deed or the Series Supplement (on the other hand),
this Agreement prevails. Where there is any inconsistency in a definition
between the Master Trust Deed and the Series Supplement, the Series
Supplement prevails over the Master Trust Deed in respect of this
Agreement. Subject to clause 1.6, where words or phrases used but not
defined in this Agreement are defined in the Master Trust Deed in
relation to a Series Trust (as defined in the Master Trust Deed) and/or
an Other Trust such words or phrases are to be construed in this
Agreement, where necessary, as being used only in relation to the Series
Trust (as defined in this Agreement) and/or the CBA Trust, as the context
requires.
1.3 Interpretation
In this Agreement, unless the contrary intention appears:
(a) headings are for convenience only and do not affect the
interpretation of this Agreement;
(b) a reference to this "Agreement" includes the Recitals and the
Schedule;
(c) the expression "person" includes an individual, the estate of an
individual, a body politic, a corporation and a statutory or other
authority or association (incorporated or unincorporated);
(d) a reference to a person includes that person's executors,
administrators, successors, substitutes and assigns, including any
person taking by way of novation;
(e) subject to clause 1.6, a reference to any document or agreement is
to such document or agreement as amended, novated, supplemented,
varied or replaced from time to time;
(f) a reference to any legislation or to any section or provision of
any legislation includes any statutory modification or re-
enactment or any statutory provision substituted for that
legislation and all ordinances, by-laws, regulations and other
statutory instruments issued under that legislation, section or
provision;
(g) words importing the singular include the plural (and vice versa)
and words denoting a given gender include all other genders;
4.
(h) a reference to a clause is a reference to a clause of this
Agreement;
(i) the expression "certified" means, in respect of a person,
certified in writing by two Authorised Officers of that person and
"certify" and like expressions will be construed accordingly;
(j) a reference to "wilful default" in relation to the Trustee or the
Manager, means, subject to clause 1.3(k) any wilful failure by the
Trustee to comply with, or wilful breach by the Trustee or the
Manager (as the case may be) of any of its obligations under any
Transaction Document, other than a failure or breach which:
(i) A. arises as a result of a breach of a Transaction
Document by a person other than:
1) the Trustee or the Manager (as the case may be);
or
2) any other person referred to in clause 1.3(p);
B. the performance of the action (the non-performance of
which gave rise to such breach) is a pre-condition to
the Trustee or the Manager (as the case may be)
performing the said obligation; or
(ii) is in accordance with a lawful court order or direction or
is required by law; or
(iii) is in accordance with a proper instruction or direction of
Investors given at a meeting convened under any Transaction
Document;
(k) a reference to the "fraud", "negligence" or "wilful default" of
the Trustee means the fraud, negligence or wilful default of the
Trustee and of its officers, employees, agents and any other
person where the Trustee is liable for the acts or omissions of
such other person under the terms of any Transaction Document.
(l) where any word or phrase is given a defined meaning, any other
part of speech or other grammatical form in respect of such word
or phrase has a corresponding meaning;
(m) where any day on which a payment is due to be made or a thing is
due to be done under this Agreement is not a Business Day, that
payment must be made or that thing must be done on the immediately
succeeding Business Day;
(n) a reference to the "close of business" on any day is a reference
to 5.00 pm on that day;
(o) a reference to time is to local time in Sydney; and
(p) subject to clause 16.2, each party will only be considered to
have knowledge or awareness of, or notice of, a thing or grounds
to believe anything by virtue of the officers of that party (or
any Related Body Corporate of that party) which have day to day
responsibility for the administration or management of that
party's (or a Related Body Corporate of that party's) obligations
in relation to the Series Trust or the Liquidity Facility 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, Manager Default, Servicer
Default or Perfection of Title Event means notice, knowledge or
awareness of the occurrence of the events or circumstances
constituting an Event of Default, Manager Default, Servicer
Default or Perfection of Title Event (as the case may be).
1.4 Trustee Capacity
In this Agreement, except where provided to the contrary:
5.
(a) (References to Trustee): a reference to the Trustee is a reference
to the Trustee in its capacity as trustee of the Series Trust
only, and in no other capacity; and
(b) (References to assets of Trustee): a reference to the undertaking,
assets, business or money of the Trustee is a reference to the
undertaking, assets, business or money of the Trustee in the
capacity referred to in paragraph (a).
1.5 Master Trust Deed and Series Supplement
For the purposes of the Master Trust Deed and the Series Supplement:
(a) (Transaction Document): this Agreement is a Transaction Document;
and
(b) (Support Facility): the Facility made available pursuant to the
terms of this Agreement is a Support Facility.
1.6 Incorporated Definitions and other Transaction Documents and provisions
Where in this Agreement a word or expression is defined by reference to
its meaning in another Transaction Document or there is a reference to
another Transaction Document or to a provision of another Transaction
Document, any amendment to the meaning of that word or expression or to
that other Transaction Document or provision (as the case may be) will be
of no effect for the purposes of this Agreement unless and until the
amendment is consented to by the parties to this Agreement.
2. THE FACILITY
2.1 Amount
Subject to this Agreement, the Liquidity Facility Provider agrees to make
Advances to the Trustee up to an aggregate principal amount equal to the
Facility Limit.
2.2 Method of Making Advances
Advances under the Facility will be by way of either Direct Advances or
Cash Advance Deposits.
2.3 Purpose
The Manager will direct the Trustee to use, and the Trustee will use, the
proceeds of each Drawing under the Facility exclusively for the Approved
Purpose.
2.4 Termination of the Facility
The Facility will terminate on the Termination Date.
3. CONDITIONS PRECEDENT
3.1 Conditions Precedent to first Advance
The Liquidity Facility Provider is not obliged to make the first Advance
to the Trustee unless the Liquidity Facility Provider has received each
of the following, in form and substance acceptable to the Liquidity
Facility Provider:
(a) (This Agreement): this Agreement duly executed and delivered by
the Trustee and the Manager;
(b) (Power of attorney): a copy of each power of attorney under which
this Agreement has been or will be executed by the Trustee and the
Manager, certified as a true copy by the Trustee and the Manager
respectively;
(c) (Authorised Officers): a list of the Authorised Officers of the
Manager;
6.
(d) (Security Trust Deed): a copy of the Security Trust Deed executed
by the parties thereto and certified as a true copy by the
Manager;
(e) (GEMICO Mortgage Insurance Policy): an executed original
counterpart of the GEMICO Mortgage Insurance Policy together with
a letter from GEMICO confirming that it has accepted for insurance
under the GEMICO Mortgage Insurance Policy the Mortgage Loans
referred to in the certificate attached to the letter; and
(f) (Legal opinion): a legal opinion addressed to the Liquidity
Facility Provider from the Trustee's solicitors in form and
substance satisfactory to the Liquidity Facility Provider.
3.2 Conditions Precedent to all Advances
The obligation of the Liquidity Facility Provider to make each Advance is
subject to the further conditions precedent that:
(a) (Representations and Warranties true): the representations and
warranties made or deemed to be made by the Trustee or the Manager
in any Transaction Document are true and correct as of the date of
the corresponding Drawdown Notice and Drawdown Date as though made
at that date;
(b) (No Event of Default): no Event of Default is subsisting at the
date of the corresponding Drawdown Notice and Drawdown Date or
will result from the provision or continuation of the Advance; and
(c) (No Notice of Security Interests): other than in respect of
priorities granted by statute, the Liquidity Facility Provider has
not received notice from any person that it claims to have a
Security Interest ranking in priority to or equal with the
Security Interest held by the Liquidity Facility Provider under
the Security Trust Deed.
4. DRAWDOWN
4.1 Preparation of Drawdown Notices
If on a Determination Date the Manager determines in accordance with the
Series Supplement that an Income Shortfall has occurred in respect of the
Collection Period just ended the Manager must:
(a) (Prepare Drawdown Notice): prepare a Drawdown Notice in
accordance with clause 4.3 requesting a Drawing on the next
Distribution Date; and
(b) (Deliver Drawdown Notice): deliver the Drawdown Notice to the
Trustee no later than the close of business on the Business Day
which is not less than 3 Business Days before the proposed
Drawdown Date.
4.2 Service of Drawdown Notices
If the Trustee receives a Drawdown Notice from the Manager pursuant to
clause 4.1, it must:
(a) (Sign Drawdown Notice): sign the Drawdown Notice in accordance
with clause 4.3(b); and
(b) (Deliver Drawdown Notice): deliver the signed Drawdown Notice to
the Liquidity Facility Provider by the time specified in clause
4.4(a).
4.3 Requirements of Drawdown Notices
A Drawdown Notice must:
7.
(a) (Form): be in the form of the Schedule (or in such other form as
from time to time agreed amongst the Liquidity Facility Provider,
the Manager and the Trustee);
(b) (Authorised Officer): be signed by an Authorised Officer of the
Trustee;
(c) (Specify Drawdown Date): specify the proposed Drawdown Date for
the requested Advance which must be the next Distribution Date;
(d) (Irrevocable): be irrevocable;
(e) (Liquidity Amount): specify the Liquidity Amount; and
(f) (Calculation): provide details of the calculation of the
Liquidity Amount.
4.4 Availability of Drawing
The Trustee may make a Drawing on any Distribution Date during the
Availability Period provided that:
(a) (Receipt of Drawdown Notice): the Liquidity Facility Provider has
received, not later than 11.00 am on the Business Day which is not
less than 2 Business Days before the proposed Drawdown Date (or
such later time as the Liquidity Facility Provider may agree), a
duly completed Drawdown Notice; and
(b) (Conditions precedent): the requirements of clause 3 have been
satisfied or waived in writing by the Liquidity Facility Provider
before the Drawdown Notice is given.
4.5 Payment of Drawing
After receipt of a Drawdown Notice:
(a) (Deposit to Collections Account): other than during a Cash Advance
Deposit Period, the amount of a Drawing requested in a Drawdown
Notice will be deposited by the Liquidity Facility Provider in the
Collections Account in immediately available funds no later than
10.00 am on the Drawdown Date; and
(b) (Satisfied from Cash Advance Deposit): during a Cash Advance
Deposit Period, the amount of a Drawing requested in a Drawdown
Notice will be satisfied from the Cash Advance Deposit in
accordance with clause 7.
5. INTEREST
5.1 Interest Period
(a) (Duration): The duration of the Facility is divided into
successive Interest Periods.
(b) (First Interest Period): The first Interest Period commences on
(and includes) the first Drawdown Date and ends on (but excludes)
the next Distribution Date.
(c) (Succeeding Interest Periods): Each succeeding Interest Period
commences on (and includes) a Distribution Date and ends on (but
excludes) the next following Distribution Date.
(d) (Last Interest Period): The last Interest Period ends on (but
excludes) the first Distribution Date that:
(i) follows the Termination Date; and
(ii) upon which all moneys the payment or repayment of which
form part of the Obligations are paid or repaid in full to
the Liquidity Facility Provider.
8.
5.2 Calculation of Interest
Interest in respect of a Drawing accrues from day to day in respect of
each Interest Period at the Prescribed Rate for that Interest Period on
the amount of the Drawing on that day and based on a 365 day year.
5.3 Payment of Interest
The Trustee at the direction of the Manager will on each Distribution
Date pay to the Liquidity Facility Provider so much of the then accrued
interest on each Drawing as is available for this purpose in accordance
with the Series Supplement.
5.4 Interest on Unpaid Interest
If any payment by the Trustee on a Distribution Date pursuant to clause
5.3 is insufficient to pay the full amount of the then accrued interest
on a Drawing, such unpaid accrued interest will in turn accrue interest
(as a separate and independent obligation) until paid at the Prescribed
Rate for each succeeding Interest Period and if not paid on the
Distribution Date at the end of each such succeeding Interest Period,
will itself bear interest in accordance with this clause.
5.5 Interest on Overdue Sums
If the Trustee fails to pay any amount due and payable by it under or in
respect of this Agreement at the time and in the manner required under
this Agreement and the Series Supplement that amount will bear interest
in accordance with this clause. Such interest is payable on demand and
will accrue on such amount from day to day at the Specified Rate for that
day from the date such amount is due for payment up to the date of actual
payment, before and (as a separate and independent obligation) after
judgment and if not paid at the end of a 30 day period will itself bear
interest in accordance with this clause.
6. REPAYMENT OF DRAWINGS AND ADVANCES
6.1 Repayment of Drawings during the Availability Period
The Trustee will on each Distribution Date repay so much of each
outstanding Drawing as at the previous Determination Date as is available
for this purpose in accordance with the Series Supplement. If a
repayment of all or part of a Drawing in accordance with the foregoing
falls on a Distribution Date within the Cash Advance Deposit Period, such
repayment will be made by way of allocation to the Cash Advance Deposit
in accordance with clause 7.3(c).
6.2 Re-Drawing
Amounts repaid pursuant to clause 6.1 may be redrawn by the Trustee in
accordance with the terms of this Agreement.
6.3 Repayment on Termination
Notwithstanding clause 6.1, on the Distribution Date immediately
following the Termination Date (or if the Termination Date is on a
Distribution Date, then on that Distribution Date), the Trustee will pay
or repay so much of the aggregate of all Advances together with interest
accrued thereon and all other money, the payment or repayment of which
forms part of the Obligations, as is available for this purpose in
accordance with the Series Supplement. If all amounts due in accordance
with this clause 6.3 are not paid or repaid in full on the Distribution
Date in accordance with the foregoing, on each succeeding Distribution
Date the Trustee will pay or repay so much of such amounts as there are
funds available for this purpose in accordance with the Series Supplement
until such amounts are paid or repaid in full.
9.
6.4 Payments Under Security Trust Deed
Without prejudice to clause 14, the limitation of the Trustee's
liability to make payments in clauses 6.3, 9.2, 10 and 18.3 will not
apply for the purposes of calculating any amounts payable out of the
Assets of the Series Trust to the Liquidity Facility Provider pursuant to
the Security Trust Deed.
7. CASH ADVANCE DEPOSIT PERIOD
7.1 Cash Advance Deposit Upon Ratings Downgrade
(a) (Rating Downgrade): If at any time the Liquidity Facility
Provider ceases to have the Designated Credit Rating, the
Liquidity Facility Provider must within 5 Business Days thereafter
(or such longer period as the Rating Agencies may agree), in
satisfaction of its obligation to make Advances during the Cash
Advance Deposit Period, deposit in the Collections Account of the
Series Trust, as an Advance under the Facility, an amount equal to
the then un-utilised portion of the Facility Limit.
(b) (Subsequent Rating Downgrade following Upgrade): If at any time
following the application of clause 7.4 the Liquidity Facility
Provider ceases to have the Designated Credit Rating, the
Liquidity Facility Provider must within 5 Business Days (or such
longer period as the Rating Agencies may agree) make a deposit in
the Collections Account in the manner, and on the same terms as,
provided in clause 7.1(a).
7.2 Withdrawal from the Collections Account
The Manager may only direct the Trustee to, and the Trustee may only,
make withdrawals from the Cash Advance Deposit in the Collection Account
as follows:
(a) (For a Drawing): for the purposes of a Drawing pursuant to clause
4.5(b) of a Liquidity Amount for the Approved Purpose and
otherwise upon and subject to the terms of this Agreement;
(b) (Repay Cash Advance Deposit): to repay to the Liquidity Facility
Provider the Cash Advance Deposit pursuant to clauses 7.4, 7.5 and
7.6; or
(c) (If new Collections Account): to be paid into a new Collections
Account opened in accordance with the Series Supplement.
7.3 Drawings During the Cash Advance Deposit Period
During a Cash Advance Deposit Period:
(a) (Drawing to be satisfied from Cash Advance Deposit): any Drawing
pursuant to a Drawdown Notice must be satisfied from the Cash
Advance Deposit deposited in the Collections Account;
(b) (Amount applied constitutes a Drawing): the amount applied from
the Cash Advance Deposit in accordance with clause 7.3(a)
constitutes a Drawing, and the provisions of this Agreement
(including, but not limited to, clauses 5 and 6 of this Agreement)
will apply accordingly;
(c) (Cash Advance Deposit to be credited): any full or partial
repayment of a Drawing required to be made by the Trustee in
accordance with this Agreement will, following receipt by the
Trustee of a written direction from the Manager, be applied in
accordance with clause 6.1 by way of allocation by the Trustee of
the relevant amount for credit of that part of the Collections
Account comprising the Cash Advance Deposit; and
(d) (Effect of allocation): an allocation by the Trustee in
accordance with clause 7.3(c) will, to the extent of the amount so
allocated, satisfy the obligation of
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the Trustee under this Agreement as regards the repayment of the
Drawing in respect of which the deposit is made, but will not
reduce or affect the obligations of the Trustee to pay to the
Liquidity Facility Provider the Cash Advance Deposit in accordance
with clauses 6.3, 7.4, 7.5, 7.6 and 13.2.
7.4 Liquidity Facility Provider Upgrade
If, at any time during a Cash Advance Deposit Period, the Liquidity
Facility Provider obtains the Designated Credit Rating, the Manager will
direct the Trustee to repay (and upon the receipt of such direction the
Trustee will repay) from the Collections Account of the Series Trust the
then Cash Advance Deposit (which has not previously been utilised in
accordance with this Agreement) together with all accrued, but unpaid,
interest on that amount determined in accordance with clause 7.7.
7.5 Reduction in Facility Limit During Cash Advance Deposit Period
If immediately prior to any Distribution Date during a Cash Advance
Deposit Period the then un-utilised portion of the Cash Advance Deposit
plus the amount of all outstanding Drawings exceeds the then Facility
Limit, the Manager will direct the Trustee to repay (and upon receipt of
such direction the Trustee will repay) from the Cash Advance Deposit on
the Distribution Date to the Liquidity Facility Provider the amount of
the excess.
7.6 Termination of Agreement
If the Termination Date occurs during a Cash Advance Deposit Period the
Manager will direct the Trustee to repay (and within 2 Business Days of
receipt of such direction the Trustee will repay) from the Collections
Account of the Series Trust the then Cash Advance Deposit (which has not
previously been utilised in accordance with this Agreement) together with
all accrued, but unpaid, interest on that amount determined in accordance
with clause 7.7 and any other amounts then due under this Agreement.
7.7 Interest on Cash Advance Deposit
The Cash Advance Deposit will accrue interest at the rate and in
accordance with the manner of determination of interest then applicable
for amounts deposited to the Collections Account during the Cash Advance
Deposit Period. Such interest will be paid to the Liquidity Facility
Provider, in accordance with the Series Supplement, on each Distribution
Date during such period.
8. PAYMENTS
8.1 Time on Due Date and Free of Set-off & Taxes
All payments to be made under this Agreement will:
(a) (Due date): be made not later than close of business on the due
date for payment and all such payments will be made in such manner
and to such account as the party receiving the payment directs in
writing; and
(b) (Set-off): be made without set-off or counterclaim and free and
clear of and without deduction for or on account of present or
future Taxes, levies, imposts, duties, charges, fees, deductions,
withholdings, restrictions or conditions of any nature.
8.2 Certificate
A certificate signed by an Authorised Officer of the Liquidity Facility
Provider stating any amount or rate for the purposes of this Agreement
will, in the absence of manifest error on its face, constitute prima
facie evidence of the amount or rate stated therein.
11.
9. ILLEGALITY AND INCREASED COST
9.1 Illegality
If any change in applicable law, regulation, treaty or official directive
or in the interpretation or administration thereof by any Governmental
Agency charged with the administration thereof makes it, in the
reasonable opinion of counsel to the Liquidity Facility Provider
evidenced in writing and addressed to the Trustee, unlawful or impossible
for the Liquidity Facility Provider to maintain or give effect to its
obligations under this Agreement, the Liquidity Facility Provider may by
written notice to the Trustee (with a copy to the Manager) appoint a date
as the Termination Date which date must not be prior to 30 days (or such
shorter period required by law) after the date of receipt by the Trustee
of written notice from the Liquidity Facility Provider appointing the
Termination Date.
9.2 Increased Cost
(a) (Change in law): If by reason of any change in law or in its
interpretation or administration or because of compliance with any
request from or requirement of any fiscal, monetary or other
Governmental Agency:
(i) the Liquidity Facility Provider incurs a cost as a result
of its having entered into or performing its obligations
under this Agreement or as a result of any Advance being
outstanding hereunder;
(ii) there is any increase in the cost to the Liquidity Facility
Provider of funding or maintaining any Advance;
(iii) the amount of principal, interest or other amount payable
to the Liquidity Facility Provider or the effective return
to the Liquidity Facility Provider under this Agreement is
reduced; or
(iv) the Liquidity Facility Provider becomes liable to make any
payment (not being a payment of Tax on its overall net
income) on or calculated by reference to the amount of
Advances made under this Agreement,
then from time to time on notification by the Liquidity Facility
Provider (with a copy to the Manager) the Trustee will on the
Distribution Date following such notification and on each
succeeding Distribution Date until the Liquidity Facility Provider
is paid in full pay to the Liquidity Facility Provider so much of
the amounts sufficient to indemnify the Liquidity Facility
Provider against such cost, increased cost, reduction or liability
that is available for this purpose in accordance with the Series
Supplement.
(b) (No defence): If the Liquidity Facility Provider has acted in
good faith it will not be a defence to the Trustee, in the event
of any failure by the Trustee to comply with its payment
obligations under clause 9.2(a), that any such cost, increased
cost, reduction or liability could have been avoided. However, the
Liquidity Facility Provider will negotiate in good faith with the
Trustee and the Manager with a view to finding a means by which
such cost, increased cost, reduction or liability may be
minimised.
(c) (Certificate conclusive): The Liquidity Facility Provider's
certificate as to the amount of, and basis for arriving at, any
such cost, increased cost, reduction or liability is conclusive
and binding on the Trustee in the absence of manifest error on the
face of the certificate.
10. FEES
The Trustee will pay to the Liquidity Facility Provider a commitment fee
of 0.10% per annum of the then un-utilised portion of the Facility Limit.
The commitment fee will be calculated daily from the date the Facility
becomes available on the basis of a 365 day year and will be paid in
arrears on each Distribution Date in accordance with the Series
Supplement. The amount of the commitment fee may be varied by agreement
between the Trustee, the Manager and the Liquidity Facility Provider
provided that each Rating Agency is given not less than 3 Business Days
prior notice by the Manager of any variation to the
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amount of the commitment fee will not be varied if such variation would
result in a reduction, qualification or withdrawal by a Rating Agency of
its then current credit rating of a Security. To the extent that such
funds are not sufficient to pay the fee in full, the fee must be paid from
the funds available on each succeeding Distribution Date until paid in
full.
11. REPRESENTATIONS AND WARRANTIES
11.1 General Representations and Warranties
The Trustee in its capacity as trustee of the Series Trust represents and
warrants to the Liquidity Facility Provider that:
(a) (Execution, delivery and performance): the execution, delivery and
performance of this Agreement and each other Transaction Document in
relation to the Series Trust to which it is a party does not violate
any existing law or regulation or any document or agreement to which
it is a party or which is binding upon it or any of its assets;
(b) (Corporate power and authorisation): the Trustee has the power to
enter into, and to perform its obligations, and has taken all
corporate and other action necessary to authorise the entry into of,
and performance of its obligations under, this Agreement and each
other Transaction Document in relation to the Series Trust and to
which it is a party;
(c) (Legally binding obligation): this Agreement and each of the other
Transaction Documents to which it is a party constitute its valid and
legally binding obligations subject to stamping and any necessary
registration except as such enforceability may be limited by any
applicable bankruptcy, insolvency, reorganisation, moratorium or
trust or other similar laws affecting creditors' rights generally;
and
(d) (No Event of Default): to the best of the Trustee's knowledge, no
Event of Default or event which with the giving of notice, lapse of
time or other applicable condition would become an Event of Default
has occurred which has not been waived or remedied in accordance with
this Agreement.
11.2 Corporate Representations and Warranties
The Trustee in its capacity as trustee of the Series Trust represents and
warrants in respect of itself to the Liquidity Facility Provider that:
(a) (Due incorporation): it is duly incorporated and has the corporate
power to own its own property and to carry on its business as is now
being conducted; and
(b) (Execution, delivery and performance): the execution, delivery and
performance of this Agreement and each other Transaction Document in
relation to the Series Trust to which it is a party does not violate
its constitution.
11.3 Series Trust Representations and Warranties
The Trustee in its capacity as trustee of the Series Trust represents and
warrants to the Liquidity Facility Provider in relation to the Series
Trust as follows:
(a) (Series Trust validly created): the Series Trust has been validly
created and is in existence at the date of this Agreement;
(b) (Sole trustee): the Trustee has been validly appointed as trustee of
the Series Trust and is presently the sole trustee of the Series
Trust;
(c) (No proceedings to remove): no notice has been given to the Trustee
and to the Trustee's knowledge no resolution has been passed or
direction or notice has
13.
been given, removing the Trustee as trustee of the Series Trust;
(d) (Trustee's power): the Trustee has power under the Master Trust Deed
to enter into the Transaction Documents to which it is a party in its
capacity as trustee of the Series Trust; and
(e) (Good title): the Trustee is the lawful owner of the Assets of the
Series Trust and has power under the Master Trust Deed to mortgage or
charge them in the manner provided in the Security Trust Deed.
11.4 Liquidity Facility Provider
The Liquidity Facility Provider represents and warrants to the Trustee
that:
(a) (Execution, delivery and performance): the execution, delivery and
performance of this Agreement and each other Transaction Document in
relation to the Series Trust to which it is a party does not violate
any existing law or regulation or any document or agreement to which
it is a party or which is binding upon it or any of its assets;
(b) (Corporate power and authorisation): the Liquidity Facility Provider
has the power to enter into, and to perform its obligations, and has
taken all corporate and other action necessary to authorise the entry
into of, and performance of its obligations under, this Agreement and
each other Transaction Document in relation to the Series Trust and
to which it is a party; and
(c) (Legally binding obligation): this Agreement and each of the other
Transaction Documents to which it is a party constitute its valid and
legally binding obligations subject to stamping and any necessary
registration except as such enforceability may be limited by any
applicable bankruptcy, insolvency, reorganisation, moratorium or
trust or other similar laws affecting creditors' rights generally.
11.5 Representations and Warranties Repeated
Each representation and warranty contained in clauses 11.1, 11.2, 11.3
and 11.4 will be deemed to be repeated on each Drawdown Date with
reference to the facts and circumstances then subsisting, as if made on
each such day.
12. UNDERTAKINGS
12.1 General
The Trustee undertakes to the Liquidity Facility Provider that it will :
(a) (Act continuously): act continuously as trustee of the Series Trust
in accordance with the Master Trust Deed and the Series Supplement
until the Series Trust is terminated or until it has retired or been
removed in accordance with the Master Trust Deed;
(b) (Do all things necessary): do everything and take all such actions
which are necessary (including, without limitation, obtaining all
such authorisations and approvals as are appropriate) to ensure that
it is able to exercise all its powers and remedies and perform all
its obligations under this Agreement, other arrangements entered into
by the Trustee pursuant to this Agreement and each Transaction
Document to which it is a party;
(c) (Maintain authorisations): ensure that each authorisation required
for it to maintain its status as trustee of the Series Trust is
obtained and promptly renewed and maintained in full force and
effect; and
(d) (Not amend or resolve): not consent to amend or revoke the provisions
of the Master Trust Deed, the Series Supplement or the Security Trust
Deed in respect
14.
of payments or the order of priorities of payments to be made
thereunder without the prior written consent of the Liquidity
Facility Provider.
12.2 Manager's Undertakings after Manager Event
At any time after a Manager Event occurs the Manager will:
(a) (Notify Liquidity Facility Provider): immediately notify the Liquidity
Facility Provider as soon as it becomes actually aware of the
occurrence of:
(i) any Event of Default, Servicer Default, Trustee Default,
Perfection of Title Event or Manager Default; or
(ii) any litigation, arbitration, criminal or administrative
proceedings relating to any of the Trustee's property, assets or
revenues that involves a claim against it in excess of A$1
million or that, if decided adversely to it, could have a
material adverse effect on its ability to perform the
Obligations,
and in each case advise the Liquidity Facility Provider of what steps
it has taken and what steps it proposes to take in relation to such
occurrences; and
(b) (Deliver Materials): deliver to the Liquidity Facility Provider:
(i) as soon as practicable and in any event not later than 120 days
after the close of each of the Series Trust's financial years,
a copy of the audited Accounts of the Series Trust;
(ii) as soon as practicable and in any event not later than 90 days
after the first half of each of the Series Trust's financial
years, a copy of a statement setting out the Assets and
Liabilities of the Series Trust for that half-year;
(iii) a soon as practical and in any event not later than 90 days
after each half year of each financial year of the Series
Trust, a copy of the written report prepared by the Auditor in
accordance with clause 21.9 of the Master Trust Deed;
(iv) as and when required by the Liquidity Facility Provider, a
certificate executed by two Authorised Officers on behalf of
the Manager stating to the best of the knowledge of the Manager
whether or not an Event of Default, Servicer Default, Trustee
Default, Perfection of Title Event or Manager Default has
occurred and if the same has occurred, setting out the details
of such event and the steps (if any) taken by the Manager to
remedy or cure the same; and
(v) promptly, such further information regarding the Series Trust's
financial condition and business operations within the
knowledge of the Manager as the Liquidity Facility Provider
from time to time reasonably requires.
12.3 Liquidity Facility Provider Undertaking
The Liquidity Facility Provider undertakes to the Trustee that it will do
everything and take all such actions which are necessary (including,
without limitation, obtaining all such authorisations and approvals as are
appropriate) to ensure that it is able to exercise all its powers and
remedies and perform all its obligations under this Agreement, other
arrangements entered into by the Liquidity Facility Provider pursuant to
this Agreement and each Transaction Document to which it is a party.
13. EVENTS OF DEFAULT
13.1 Events of Default
Each of the following events is an Event of Default whether or not caused
by any reason whatsoever outside the control of the Trustee or any other
person:
(a) (Failure to repay or pay): the Trustee fails to repay, in accordance
with this
15.
Agreement, any Advance or fails to pay any interest, fees, costs,
charges, expenses or other moneys payable under this Agreement in each
case within 10 Business Days of the due date for payment of such
amount;
(b) (Breach of undertaking): the Trustee breaches its undertaking in
clause 12.1(d); and
(c) (Event of Default under Security Trust Deed): an Event of Default (as
defined in the Security Trust Deed in relation to the Series Trust)
occurs and any action is taken by the Security Trustee, pursuant to
clause 10 of the Security Trust Deed, to appoint a Receiver in
respect of the Assets of the Series Trust or to sell and realise the
Assets of the Series Trust or the Security Trustee takes any action
pursuant to clause 11 of the Security Trust Deed.
13.2 Consequences of Event of Default
At any time after the occurrence of an Event of Default the Liquidity
Facility Provider may, without being obliged to do so and notwithstanding
any waiver of any previous default, by written notice to the Trustee:
(a) (Declare Advances due): declare the Advances, accrued interest and all
other sums which have accrued due under this Agreement (whether or not
presently payable) to be due, whereupon they will become immediately
due and payable; and/or
(b) (Declare Facility terminated): declare the Facility terminated in
which case the obligations of the Liquidity Facility Provider under
this Agreement will immediately terminate from the date of receipt by
the Trustee of such written notice.
14. TERMINATION BY TRUSTEE
14.1 Trustee may declare a Termination Date
Subject to clause 14.2, the Trustee may at the direction of the Manager,
by not less than 5 Business Days written notice to the Liquidity Facility
Provider and the Manager, declare a Distribution Date as the date on
which:
(a) (Substitute Liquidity Facility Provider): the Liquidity Facility
Provider hereunder will be replaced by a substitute Liquidity Facility
Provider; and
(b) (Termination): the Liquidity Facility will terminate.
14.2 Requirements for termination
On or before the declaration of the Distribution Date by the Trustee in
accordance with clause 14.1, the Trustee must obtain written confirmation
from the Rating Agencies that the termination of the Facility and the
appointment of the proposed substitute Liquidity Facility Provider on that
Distribution Date will not result in a downgrade, qualification or
withdrawal of the credit ratings then assigned by them to the Securities.
15. TRUSTEE PROVISIONS
15.1 Limitation on Trustee's Liability
The Trustee enters into this Agreement only in its capacity as trustee of
the Series Trust and in no other capacity. A liability incurred by the
Trustee acting in its capacity as trustee of the Series Trust arising
under or in connection with this Agreement is limited to and can be
enforced against the Trustee only to the extent to which it can be
satisfied out of the Assets of the Series Trust out of which the Trustee
is actually indemnified for the liability. This limitation of the
Trustee's liability applies despite any other provision of this Agreement
(other than clause 15.3) and extends to all liabilities and obligations of
the Trustee in any way connected with any representation, warranty,
conduct, omission, agreement or
16.
transaction related to this Agreement.
15.2 Claims against Trustee
The parties other than the Trustee may not ▇▇▇ the Trustee in respect of
liabilities incurred by the Trustee acting in its capacity as trustee of
the Series Trust in any capacity other than as trustee of the Series Trust
including seeking the appointment of a receiver (except in relation to the
Assets of the Series Trust), a liquidator, an administrator or any similar
person to the Trustee, or prove in any liquidation, administration or
similar arrangements of or affecting the Trustee (except in relation to
the Assets of the Series Trust).
15.3 Breach of Trust
The provisions of this clause 15 will not apply to any obligation or
liability of the Trustee to the extent that it is not satisfied because
under the Master Trust Deed, the Series Supplement, any other Transaction
Document in relation to the Series Trust or by operation of law there is a
reduction in the extent of the Trustee's indemnification out of the Assets
of the Series Trust as a result of the Trustee's fraud, negligence or
wilful default.
15.4 Acts or omissions
It is acknowledged that the Relevant Parties are responsible under the
Transaction Documents for performing a variety of obligations relating to
the Series Trust. No act or omission of the Trustee (including any related
failure to satisfy its obligations or any breach or representations or
warranties under this Agreement) will be considered fraud, negligence or
wilful default of the Trustee for the purpose of clause 15.3 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 appointed by the Trustee
under any Transaction Document (other than a person whose acts or
omissions the Trustee is liable for in accordance with any Transaction
Document) to fulfil its obligations in relation to the Series Trust or by
any other act or omission of a Relevant Party or any other such person.
15.5 No obligation
(a) (Obligations under this Agreement or any Transaction Document): The
Trustee is not obliged to enter into any commitment or obligation
under this Agreement or any Transaction Document unless the Trustee's
liability is limited in a manner which is consistent with this clause
15. The Trustee agrees and acknowledges that its liability for any
commitment or obligation it has entered into under this Agreement is
limited in a manner which is consistent with this clause 15.
(b) (Obligations not contained in this Agreement or any Transaction
Document): The Trustee is not obliged to enter into any commitment or
obligation contemplated by but not contained in this Agreement or any
Transaction Document unless the Trustee's liability in relation to
that commitment or obligation is limited in a manner satisfactory to
the Trustee in its absolute discretion.
16. ASSIGNMENT
16.1 Assignment by Trustee
The Trustee will not assign or otherwise transfer the benefit of this
Agreement or any of its rights, duties or obligations under this Agreement
except to a Substitute Trustee acceptable to the Liquidity Facility
Provider (whose consent is not to be unreasonably withheld).
16.2 Assignment by Liquidity Facility Provider
The Liquidity Facility Provider will not assign or otherwise transfer all
or any part of the benefit of this Agreement or any of its rights, duties
and obligations under this Agreement except to an assignee or transferee
that has a Designated Credit Rating or, if the assignee
17.
or transferee does not have a Designated Credit Rating, the assignee or
transferee complies immediately prior to the completion of the assignment
or transfer with clause 7.1(a). The Liquidity Facility Provider may
disclose to a proposed assignee or transferee information in the
possession of the Liquidity Facility Provider relating to the Trustee or
the Manager. An assignment or transfer by the Liquidity Facility Provider
pursuant to this clause 16.2 shall not be of any effect until the
Liquidity Facility Provider has notified the Trustee in writing of the
assignment or transfer, as the case may be.
17. NOTICES
17.1 Method of Delivery
Any notice, request, certificate, approval, demand, consent or other
communication to be given under this Agreement:
(a) (Execution): must be signed by 2 Authorised Officers of the party
giving the same;
(b) (In writing): must be in writing; and
(c) (Delivery): must be:
(i) left at the address of the addressee;
(ii) sent by prepaid ordinary post to the address of the addressee;
or
(iii) sent by facsimile to the facsimile number of the addressee,
notified by that addressee from time to time to the other parties to
this Agreement as its address for service pursuant to this Agreement.
17.2 Deemed Receipt
A notice, request, certificate, demand, consent or other communication
under this Agreement is deemed to have been received:
(a) (Delivery): where delivered in person, upon receipt;
(b) (Post): where sent by post within Australia, on the 3rd day after
posting and where sent by post to, from or outside Australia, on the
7th day after posting; and
(c) (Fax): where sent by facsimile, on production by the dispatching
facsimile machine of a transmission report which indicates that the
facsimile was sent in its entirety to the facsimile number of the
recipient.
However, if the time of deemed receipt of any notice is not before 5.30 pm
on a Business Day at the address of the recipient it is deemed to have
been received at the commencement of business on the next Business Day.
18. INDEMNITY
18.1 Indemnity on Demand
Subject to clause 15, the Trustee will on demand indemnify the Liquidity
Facility Provider against any loss, cost or expenses which the Liquidity
Facility Provider may sustain or incur as a consequence of:
(a) (Overdue sums): any sum payable by the Trustee under this Agreement
not being paid when due;
(b) (Event of Default): the occurrence of any Event of Default;
(c) (Failure to provide Advance): an Advance requested in a Drawdown
Notice not being provided for any reason including failure to fulfil
any condition
18.
precedent but excluding any matter within the control of the Liquidity
Facility Provider; or
(d) (Payment of principal): the Liquidity Facility Provider receiving
payments of principal other than on the last day of the relevant
Interest Period for any reason.
18.2 Losses on Liquidation or Re-employment of Deposits
The losses, costs or expenses referred to in clause 18.1 will include the
amount determined in good faith by the Liquidity Facility Provider as
being any loss (other than an amount for loss of profit other than loss of
margin) including:
(a) (Loss of margin): loss of margin, cost or expense incurred by reason
of the liquidation or re-employment of deposits or other funds
acquired or contracted for by the Liquidity Facility Provider to fund
or maintain any such Advance or amount;
(b) (Other arrangements): losses, costs, damages, charges or expenses
incurred by the Liquidity Facility Provider in relation to the
variation, termination or making of any other arrangements in relation
to any arrangement ancillary or related to this Agreement including,
without limitation, any swap or derivative agreement entered into by
the Liquidity Facility Provider in connection with or in order to fund
any Advances.
18.3 Payment on Distribution Date
Any payments to be made by the Trustee pursuant to this clause 18 will
only be made on the Distribution Date following demand by the Liquidity
Facility Provider and on each succeeding Distribution Date until the
Liquidity Facility Provider is paid in full by payment of so much of the
amount sufficient to indemnify the Liquidity Facility Provider as is
available for this purpose in accordance with the Series Supplement.
19. MISCELLANEOUS
19.1 Stamp Duties
(a) (Trustee must pay): The Trustee will pay all stamp, loan transaction,
registration and similar Taxes including fines and penalties (except
such fines and penalties incurred through the act, neglect or omission
of the Liquidity Facility Provider after the Liquidity Facility
Provider has requested and been put in funds to pay such Taxes),
financial institutions duty and debits tax which may be payable or
required to be paid by any appropriate authority or determined to be
payable in connection with the execution, delivery, performance or
enforcement of this Agreement.
(b) (Trustee must indemnify): Subject to clause 15, the Trustee will
indemnify and keep indemnified the Liquidity Facility Provider against
any loss or liability incurred or suffered by it as a result of the
delay or failure by the Trustee to pay such Taxes.
19.2 Waiver
A failure to exercise or enforce or a delay in exercising or enforcing or
the partial exercise or enforcement of any right, remedy, power or
privilege under this Agreement by the Liquidity Facility Provider will not
in any way preclude or operate as a waiver of any further exercise or
enforcement of such right, remedy, power or privilege or the exercise or
enforcement of any other right, remedy, power or privilege under this
Agreement or provided by law.
19.3 Written Waiver, Consent and Approval
Any waiver, consent or approval given by the Liquidity Facility Provider
under this Agreement will only be effective and will only bind the
Liquidity Facility Provider if it is
19.
given in writing, or given verbally and subsequently confirmed in
writing, and executed by the Liquidity Facility Provider or on its behalf
by two Authorised Officers of the Liquidity Facility Provider.
19.4 Severability
Any provision of this Agreement which is illegal, void or unenforceable
in any jurisdiction is ineffective in such jurisdiction to the extent
only of such illegality, voidness or unenforceability without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of the provision in any other jurisdiction.
19.5 Survival of Indemnities
The indemnities contained in this Agreement are continuing obligations of
the Trustee, separate and independent from the other obligations of the
Trustee and will survive the termination of this Agreement.
19.6 Successors and Assigns
This Agreement is binding upon and inures to the benefit of the parties
to this Agreement and their respective successors and permitted assigns.
19.7 Moratorium Legislation
To the fullest extent permitted by law, the provisions of all statutes
whether existing now or in the future operating directly or indirectly:
(a) (To affect obligations): to lessen or otherwise to vary or affect in
favour of the Trustee any obligation under this Agreement; or
(b) (To affect rights): to delay or otherwise prevent or prejudicially
affect the exercise of any rights or remedies conferred on the
Liquidity Facility Provider under this Agreement,
are hereby expressly waived, negatived and excluded.
19.8 Amendments
No amendment to this Agreement will be effective unless in writing and
executed by each of the parties to this Agreement. The Manager must give
each Rating Agency not less than 10 Business Days' prior notice of any
amendment to this Agreement.
19.9 Governing Law
This Agreement is governed by and construed in accordance with the laws
of the State of New South Wales.
19.10 Jurisdiction
Each of the parties irrevocably and unconditionally:
(a) (Submission to jurisdiction): submits to the non-exclusive
jurisdiction of the courts of the State of New South Wales;
(b) (Waiver of inconvenient forum): waives any objection it may now or
in the future have to the bringing of proceedings in those courts
and any claim that any proceedings have been brought in an
inconvenient forum; and
(c) (Service of notice): agrees, without preventing any other mode of
service permitted by law, that any document required to be served in
any proceedings may be served in the manner in which notices and
other written communications may be given under clause 17.
20.
19.11 Counterparts
This Agreement may be executed in a number of counterparts and all such
counterparts taken together will constitute one and the same instrument.
21.
SCHEDULE
FORM OF DRAWDOWN NOTICE
To: Commonwealth Bank of Australia, ACN 123 123 124
[Address]
Attention: Head of Securitisation
From: Perpetual Trustee Company Limited, ACN 000 001 007
[Date]
In our capacity as trustee of the Series Trust, we hereby irrevocably request a
Drawing on the Drawdown Date specified below for an amount equal to the
Liquidity Amount specified below in accordance with clause 4 of the Liquidity
Facility Agreement dated [ ] between ourselves, Commonwealth Bank of Australia
and Securitisation Advisory Services Pty. Limited as amended, novated or
supplemented from time to time (the "Liquidity Facility Agreement"):
(a) Drawdown Date [ ]
(b) Liquidity Amount A$[ ]
(c) Calculation of Liquidity Amount [ ]
Words used and not otherwise defined herein have the same meaning as in the
Liquidity Facility Agreement.
SIGNED on behalf of PERPETUAL
TRUSTEE COMPANY LIMITED as
trustee of the Series 2000-1G Medallion Trust by:
....................................................
(Authorised Officer)
....................................................
(Name)
....................................................
(Title)
22.
EXECUTED as an Agreement.
SIGNED for and on behalf of )
COMMONWEALTH BANK OF ) ...............................
AUSTRALIA, ACN 123 123 124 by its ) (Signature of Attorney)
Attorney under a Power of Attorney dated )
)
in the presence of: ) ...............................
(Name of Attorney in Full)
...........................................
(Signature of Witness)
...........................................
(Name of Witness in Full)
SIGNED for and on behalf of )
PERPETUAL TRUSTEE COMPANY ) ...............................
LIMITED, ACN 000 001 007, by its ) (Signature of Attorney)
Attorney under a Power of Attorney dated )
and who declares that he or she has not )
received any notice of the revocation of )
such Power of Attorney in the presence of: ...............................
(Name of Attorney in Full)
...........................................
(Signature of Witness)
...........................................
(Name of Witness in Full)
SIGNED for and on behalf of )
SECURITISATION ADVISORY ) ...............................
SERVICES PTY. LIMITED, ACN 064 133 ) (Signature of Attorney)
946, by its Attorney under a Power of )
Attorney dated )
and who declares that he or she has not ) ...............................
received any notice of the revocation of ) (Name of Attorney in Full)
such Power of Attorney in the presence of: )
)
...........................................
(Signature of Witness)
...........................................
(Name of Witness in Full)
23.