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EXHIBIT 10.3
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DATED 2001
HOMESIDE MORTGAGE SECURITIES
TRUST 2001-1
REDRAW FACILITY AGREEMENT
PERPETUAL TRUSTEE COMPANY LIMITED
("ISSUER TRUSTEE")
HOMESIDE GLOBAL MBS MANAGER, INC.
("GLOBAL TRUST MANAGER")
NATIONAL AUSTRALIA BANK LIMITED
("REDRAW FACILITY PROVIDER")
MALLESONS STEPHEN JAQUES
Solicitors
Governor Phillip Tower
1 Farrer Place
Sydney NSW 2000
Telephone (61 2) 9296 2000
Facsimile (61 2) 9296 3999
DX 113 Sydney
Ref: SRF
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CONTENTS HOMESIDE MORTGAGE SECURITIES TRUST 2001-1
REDRAW FACILITY AGREEMENT
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<TABLE>
<S> <C> <C>
1 INTERPRETATION 2
2 THE REDRAW FACILITY 4
3 CONDITIONS PRECEDENT 6
4 REDRAW DRAWINGS 7
5 INTEREST PERIODS 8
6 INTEREST 8
7 REPAYMENT OF REDRAW DRAWINGS 9
8 AVAILABILITY FEE 10
9 CANCELLATION OR REDUCTION OF THE REDRAW FACILITY 10
10 CHANGED COSTS EVENT 11
11 ILLEGALITY 12
12 PAYMENTS AND TAXES 12
13 REPRESENTATIONS AND WARRANTIES 13
14 GENERAL UNDERTAKINGS BY ISSUER TRUSTEE 15
15 REDRAW EVENTS OF DEFAULT 17
16 NOTICES 18
17 SECURITY INTERESTS AND ASSIGNMENT 19
18 MISCELLANEOUS 19
19 LIABILITY OF ISSUER TRUSTEE AND LIMITED RECOURSE 20
20 GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS 20
21 COUNTERPARTS 21
22 COSTS, CHARGES, EXPENSES AND INDEMNITIES 21
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23 REDRAW FACILITY PROVIDER TERMINATION DATE 23
SCHEDULE 1 DRAWDOWN NOTICE (CLAUSE 4) 24
</TABLE>
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HOMESIDE MORTGAGE SECURITIES TRUST 2001-1
REDRAW FACILITY AGREEMENT
DATE: 2001
PARTIES:
PERPETUAL TRUSTEE COMPANY LIMITED (ABN 42 000 001
007) in its capacity as trustee of the Trust and
having its registered office at Level 3, 39 Hunter
Street, Sydney, NSW 2000 ("ISSUER TRUSTEE")
HOMESIDE GLOBAL MBS MANAGER, INC. having an office
at 7301 Baymeadows Way, Jacksonville, Florida,
32256, United States of America ("GLOBAL TRUST
MANAGER")
NATIONAL AUSTRALIA BANK LIMITED (ABN 12 004 444 937)
having its registered office at Level 24, 500 Bourke
Street, Melbourne, Victoria, 3000 ("REDRAW FACILITY
PROVIDER").
1 INTERPRETATION
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1.1 The following words have these meanings in this
agreement unless the contrary intention appears.
AVAILABLE REDRAW AMOUNT means, on a Determination
Date, an amount equal to:
(a) the Redraw Limit on that Determination Date;
less
(b) the Redraw Principal Outstanding on the
previous Determination Date.
AVAILABILITY PERIOD means the period commencing on
the Closing Date and ending on the Redraw Facility
Termination Date.
CHANGED COSTS EVENT means:
(a) the introduction or commencement after the
date of this agreement of, or any change in,
or in the interpretation, application or
administration of the compliance by, or a
change in the method of compliance by, the
Redraw Facility Provider with any law or
regulation;
(b) the incurrence of any new Taxes (other than
a Tax on the overall net income of the
Redraw Facility Provider); or
(c) the imposition by any regulatory authority
in respect of the Redraw Facility Provider
of any new, or change in the imposition of
any (as at the date of this agreement),
reserve requirement, statutory reserve
deposit, special deposit, capital adequacy
ratio, equity ratio, liquidity ratio,
liabilities ratio or other similar
requirement,
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whether such event results in an increase or a
decrease in the relevant amount or cost referred to
in clause 10.1.
DEFINITIONS SCHEDULE means the deed entitled
"HomeSide Mortgage Securities Trusts Definitions
Schedule" dated 3 January 2001 between the parties
named in schedule 1 to that deed.
DRAWDOWN DATE means the date on which a drawing is or
is to be made under the Redraw Facility, which date
must be a Payment Date in respect of the Trust.
DRAWDOWN NOTICE means a notice given in accordance
with clause 4.1.
PERFORMING MORTGAGE LOANS AMOUNT means, at any time,
the aggregate of:
(a) the Outstanding Principal Balance of all
Housing Loans which comprise part of the
Purchased Mortgage Loans in respect of which
no payment due from the Debtor has been in
arrears for a period of more than 90
consecutive days; and
(b) the Outstanding Principal Balance of all
Housing Loans which comprise part of the
Purchased Mortgage Loans in respect of which
a payment from the Debtor has been in
arrears for a period of more than 90
consecutive days and in respect of which a
valid claim is available under a Mortgage
Insurance Policy.
REDRAW DRAWING means a drawing made under the Redraw
Facility.
REDRAW EVENT OF DEFAULT has the meaning given to it
in clause 15.1.
REDRAW FACILITY means the facility granted pursuant
to this agreement.
REDRAW FACILITY TERMINATION DATE means the earliest
of:
(a) the Scheduled Termination Date;
(b) the date upon which the Redraw Facility
Provider makes a determination under clause
11.1;
(c) the date upon which the Redraw Limit is
cancelled or reduced to zero under clause 9;
and
(d) the date upon which the Redraw Facility
Provider terminates the Redraw Facility
under clause 15.2.
REDRAW FACILITY PROVIDER TERMINATION DATE means the
date determined under clause 23.3.
REDRAW INTEREST PERIOD means each period determined
in accordance with clause 5.
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REDRAW INTEREST RATE means, in respect of a Redraw
Drawing, the interest rate calculated in accordance
with clause 6.2.
REDRAW LIMIT means, at any time, the lesser of:
(a) $20 million;
(b) the Performing Mortgage Loans Amount on the
last day of the previous Collection Period;
and
(c) the amount (if any) to which the Redraw
Limit has been reduced to at that time in
accordance with clause 9.2.
SCHEDULED TERMINATION DATE means the date which is
364 days after the date of this agreement or such
later date as is specified by the Redraw Facility
Provider under clause 2.7.
SUPPLEMENTAL DEED means the deed entitled "HomeSide
Mortgage Securities Trust 2001-1 Supplemental Deed"
dated on or about the date of this agreement between,
amongst others, the Issuer Trustee, the Global Trust
Manager and the Security Trustee.
TRUST means the HomeSide Mortgage Securities Trust
2001-1.
OTHER DEFINITIONS
1.2 Unless otherwise defined in this agreement, words and
phrases defined in the Definitions Schedule or the
Supplemental Deed have the same meaning in this
agreement with each reference to "this deed" being
construed as a reference to "this agreement". In the
event of an inconsistency between a definition in the
Definitions Schedule or the Supplemental Deed and
this agreement, the definition in this agreement
prevails. In the event of an inconsistency between a
definition in the Definitions Schedule and the
Supplemental Deed, the definition in the Supplemental
Deed prevails.
INTERPRETATION
1.3 Clauses 1.2 to 1.5 (inclusive) of the Definitions
Schedule are deemed to be incorporated in this
agreement as if they were set out in full in it.
LIMITATION
1.4 The rights and obligations of the parties under this
agreement relate only to the Trust. The Redraw
Facility Provider has no obligation under this
agreement to provide financial accommodation to the
Issuer Trustee in respect of any other trust
established under the Master Trust Deed.
2 THE REDRAW FACILITY
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REDRAW FACILITY
2.1 The Redraw Facility Provider grants to the
Issuer Trustee a loan facility in Australian
dollars in respect of the Trust in an amount equal
to the Redraw Limit. If the Issuer Trustee wants
to use the Redraw Facility, then it may do so by
one or more requests made in accordance with
clause 4. Subject to this agreement, the Redraw
Facility Provider
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agrees to provide financial accommodation requested
by the Issuer Trustee under this agreement.
PURPOSE
2.2 The Redraw Facility is only available to be drawn to
meet any Redraw Shortfall in relation to the Trust.
REDRAW SHORTFALL
2.3 The Redraw Limit will be available only if and to the
extent that there is a Redraw Shortfall on any
Determination Date.
GLOBAL TRUST MANAGER TO MAKE DRAWING
2.4 If, on any Determination Date during the Availability
Period, the Global Trust Manager determines that
there is a Redraw Shortfall on that Determination
Date, the Global Trust Manager must arrange, by
giving a direction to the Issuer Trustee, for a
Redraw Drawing to be made under the Redraw Facility
on the immediately following Payment Date in
accordance with this agreement and equal to the
lesser of:
(a) the Redraw Shortfall on that Determination
Date; and
(b) the Available Redraw Amount on that
Determination Date.
LIMIT
2.5 Despite anything in this agreement, the Redraw
Facility Provider need not provide financial
accommodation under this agreement if to do so would
result in the Redraw Principal Outstanding exceeding
the Redraw Limit.
TERMINATION
2.6 The Redraw Facility will terminate on the earlier of
the Redraw Facility Termination Date and the Redraw
Facility Provider Termination Date.
EXTENSION
2.7
(a) Not less than 90 days before the then
Scheduled Termination Date, the Global Trust
Manager may deliver a notice in writing to
the Redraw Facility Provider (with a copy to
the Issuer Trustee) requesting the Redraw
Facility Provider to extend the Scheduled
Termination Date.
(b) Following the receipt by the Redraw Facility
Provider of the notice referred to in (a)
above, the Redraw Facility Provider may, in
its absolute discretion, send the Issuer
Trustee a notice in writing (copied to the
Global Trust Manager) extending the then
Scheduled Termination Date to a later date,
such date not to be more than 364 days after
the date of the notice.
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3 CONDITIONS PRECEDENT
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FIRST DRAWDOWN NOTICE
3.1 The Issuer Trustee must not deliver the first
Drawdown Notice until the Issuer Trustee has received
written notice from the Redraw Facility Provider that
the Redraw Facility Provider has received the
following in form and substance satisfactory to it:
(a) (POWER OF ATTORNEY) a certified copy of the
power of attorney under which a person signs
and delivers this agreement for the Issuer
Trustee and the Global Trust Manager and, if
required by the Redraw Facility Provider,
evidence of its stamping and registration;
(b) (TRANSACTION DOCUMENTS) a certified copy of
each Transaction Document executed by each
of the parties to the respective document;
(c) (REGISTRATION OF CHARGE) evidence of
registration of, or intention to register,
the Deed of Charge with the relevant
Governmental Agencies; and
(d) (OPINIONS) a legal opinion addressed to the
Redraw Facility Provider from the Issuer
Trustee's solicitors in a form and substance
satisfactory to the Redraw Facility
Provider.
DRAWINGS IN RESPECT OF A TRUST
3.2 The Redraw Facility Provider need not make any
proposed drawing available unless:
(a) (STATEMENTS TRUE) it is reasonably satisfied
that the statements contained in the
Drawdown Notice are true at the date of the
Drawdown Notice and at the Drawdown Date;
(b) (NO REDRAW EVENT OF DEFAULT) no Redraw Event
of Default continues unremedied or would
result from the provision of the proposed
drawing;
(c) (REPRESENTATIONS AND WARRANTIES) the
representations and warranties made or
deemed to be made by the Issuer Trustee and
the Global Trust Manager in any Transaction
Document are true and correct as of the date
of the Drawdown Notice and the Drawdown
Date;
(d) (OTHER SECURITY INTERESTS) other than in
respect of priorities granted by statute,
the Redraw Facility Provider has not
received notice from any person that it
claims to have a Security Interest ranking
in priority to or equal with the Security
Interest held for the benefit of the Redraw
Facility Provider in accordance with the
Master Security Trust Deed, the Deed of
Charge and the Supplemental Deed (other than
the Security Interests set out specifically
in the Master Security Trust Deed, the Deed
of Charge and the Supplemental Deed and
ranking in priority to or equal with the
Security Interest held for the benefit of
the Redraw Facility Provider);
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(e) (NOTES) the Notes are still in existence and
have not been redeemed or repaid in full;
and
(f) (AVAILABILITY PERIOD) the Availability
Period has not expired.
CERTIFICATION
3.3 Anything required to be certified under clause 3 must
be certified by an Authorised Person of the Issuer
Trustee or the Global Trust Manager (as applicable)
as being true and complete as at a date no earlier
than the date of this agreement.
BENEFIT OF THE REDRAW FACILITY PROVIDER
3.4 The conditions precedent set out in this clause 3
are for the benefit of the Redraw Facility Provider
and any of them may be waived by the Redraw Facility
Provider in its absolute discretion.
4 REDRAW DRAWINGS
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USE OF REDRAW FACILITY
4.1 If the Issuer Trustee on the direction of the Global
Trust Manager wants to use the Redraw Facility to
make a Redraw Drawing, it must do so only in
accordance with clause 2.4 and it must give a notice
to the Redraw Facility Provider meeting the
requirements of clause 4.3 ("DRAWDOWN NOTICE").
TIMING
4.2 Each Redraw Drawing must be drawn down on a Payment
Date in respect of the Trust. Each Redraw Drawing
must be credited to the Collections Account and
applied only in accordance with clause 14 of the
Supplemental Deed.
FORM OF NOTICE
4.3 A Drawdown Notice given under clause 4.1 must:
(a) be in or substantially in the form of
Schedule 1;
(b) be signed by an Authorised Person of the
Issuer Trustee;
(c) specify the Drawdown Date, which must be a
day which complies with clause 4.2;
(d) specify the amount of the proposed Redraw
Drawing and its method of calculation; and
(e) be given no later than 4.00pm on the day
which is 2 Business Days prior to the
relevant Payment Date (or such other period
as may be agreed between the Issuer Trustee,
the Global Trust Manager and the Redraw
Facility Provider).
EFFECTIVE
4.4 A Drawdown Notice is effective on actual receipt in
legible form by the Redraw Facility Provider and is
irrevocable.
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AGREEMENT TO MAKE REDRAW DRAWING
4.5 Subject to this agreement, the Redraw Facility
Provider agrees to deposit in the Collections Account
the amount of any Redraw Drawing in immediately
available funds by 11.30am Melbourne time on the
relevant Payment Date.
5 INTEREST PERIODS
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INITIAL INTEREST PERIODS
5.1 The first Redraw Interest Period in respect of a
Redraw Drawing commences on (and includes) its
Drawdown Date and ends on (but excludes) the next
Payment Date. Each subsequent Redraw Interest Period
will commence on (and include) a Payment Date and end
on (but exclude) the next Payment Date.
FINAL INTEREST PERIOD
5.2 A Redraw Interest Period in respect of a Redraw
Drawing which would otherwise end after the Final
Termination Date of the Trust ends on (but excludes)
that Final Termination Date.
6 INTEREST
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PAYMENT OF INTEREST
6.1 The Issuer Trustee agrees to pay to the Redraw
Facility Provider interest on the daily balance of
each Redraw Drawing from and including its Drawdown
Date until the Redraw Drawing is repaid in full. On
each Payment Date, the Issuer Trustee will pay to the
Redraw Facility Provider accrued interest on each
Redraw Drawing. If, on any Payment Date, all amounts
due in accordance with this clause 6.1 are not paid
in full, on each following Payment Date the Issuer
Trustee must pay so much of the amounts as are
available for that purpose in accordance with the
Supplemental Deed until such amounts are paid in
full.
CALCULATION OF INTEREST
6.2 Interest is to be calculated for each Redraw Interest
Period. Interest accrues from day to day and is to be
calculated on actual days elapsed and a 365 day year.
Interest is payable quarterly in arrears on each
Payment Date in the manner contemplated by clause
6.1. The rate of interest paid to the Redraw Facility
Provider in respect of a Redraw Interest Period is
the sum of the Bank Bill Rate on the first day of
that Redraw Interest Period (rounded to 3 decimal
places) and 0.20% per annum ("REDRAW INTEREST RATE").
INTEREST ON OVERDUE AMOUNTS
(a) If any payment by the Issuer Trustee on a
Payment Date under clause 6.1 is
insufficient to pay the full amount of
accrued interest on each Redraw Drawing and
any other interest due and payable under
clause 6.3(b) up to the close of the Redraw
Interest Period just ended, such unpaid
interest will itself capitalise and bear
interest in accordance with clauses 6.1 and
6.2 of this agreement.
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(b) The Issuer Trustee agrees to pay interest on
any amount payable by it under this
agreement (including without limitation on
any unpaid interest) from when it becomes
due for payment during the period that it
remains unpaid. Interest is payable at the
rate set out in clause 6.2, as if the amount
is a Redraw Drawing having successive Redraw
Interest Periods calculated in accordance
with clause 5. The first Redraw Interest
Period commences on the day when the
outstanding amount becomes due for payment
and each subsequent Redraw Interest Period
commences on the day when the preceding
Redraw Interest Period expires.
OBLIGATION UNAFFECTED
6.4 The Issuer Trustee's obligation to pay the
outstanding amount on the date it becomes due for
payment is not affected by clause 6.3.
INTEREST FOLLOWING JUDGMENT OR ORDER
6.5 If a liability under this agreement becomes merged in
a judgment or order, then the Issuer Trustee agrees
to pay interest to the Redraw Facility Provider on
the amount of that liability as an independent
obligation. This interest accrues from the date the
liability becomes due for payment both before and
after the judgment or order until it is paid, at a
rate that is the higher of the rate payable under the
judgment or order and the rate referred to in clause
6.3(b).
7 REPAYMENT OF REDRAW DRAWINGS
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REPAYMENT OF REDRAW DRAWINGS
7.1 Subject to clause 7.3, on each Payment Date, the
Issuer Trustee will repay to the Redraw Facility
Provider so much of the Redraw Principal Outstanding
as there are funds available for this purpose for
that Payment Date in accordance with clause 14 of the
Supplemental Deed.
RE-DRAWING
7.2 Amounts repaid pursuant to clause 7.1 may be redrawn
by the Issuer Trustee in accordance with the terms of
this agreement.
REPAYMENT ON TERMINATION DATE
7.3 Notwithstanding clause 7.1, on or before the Redraw
Facility Termination Date, the Issuer Trustee must
repay:
(a) the Redraw Principal Outstanding;
(b) interest accrued thereon; and
(c) all other money due under this agreement,
in each case to the extent that amounts are available
for that purpose in accordance with the Master Trust
Deed and the Supplemental Deed.
7.4 If all amounts due in accordance with clause 7.3 are
not paid or repaid in full on the Payment Date
immediately following the Redraw Facility Termination
Date, the Issuer Trustee will repay so much of such
amounts on succeeding Payment Dates as is available
for that purpose
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in accordance with the Master Trust Deed and the
Supplemental Deed until all such amounts are paid or
repaid in full.
7.5 A Redraw Charge-Off made under clause 14.15 of the
Supplemental Deed reduces the amount of the Redraw
Principal Outstanding from the date on which the
Redraw Charge-Off is made by the amount of the Redraw
Charge-Off.
8 AVAILABILITY FEE
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8.1 The Issuer Trustee will pay to the Redraw Facility
Provider an availability fee of 0.15% per annum on
the then un-utilised portion of the Redraw Limit. The
fee will be:
(a) calculated and accrue daily from the Closing
Date on the basis of a 365 day year; and
(b) paid quarterly in arrears on each Payment
Date in accordance with clause 14 of the
Supplemental Deed.
8.2 The availability fee payable under clause 8.1 may be
varied from time to time by the Global Trust Manager
and the Redraw Facility Provider (and notified to the
Issuer Trustee) provided that the Global Trust
Manager notifies each Current Rating Agency of the
variation and receives confirmation from each Current
Rating Agency that the variation will not have an
Adverse Rating Effect.
9 CANCELLATION OR REDUCTION OF THE REDRAW FACILITY
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CANCELLATION
9.1
(a) Subject to paragraph (b), the Issuer Trustee
may on the direction of the Global Trust
Manager cancel the Redraw Facility by
written notice to the Redraw Facility
Provider.
(b) The cancellation referred to in paragraph
(a) will only be effective if each Current
Rating Agency has confirmed that the
cancellation of the Redraw Facility will not
have an Adverse Rating Effect, unless all of
the Notes have been or will be redeemed on
or before the date such cancellation is to
take effect in which case no such
confirmation is necessary.
REDUCTION OF REDRAW LIMIT
9.2 The Issuer Trustee may on the direction of the Global
Trust Manager reduce the Redraw Limit in whole or in
part by written notice to the Redraw Facility
Provider and must notify each Current Rating Agency
of the reduction.
WHEN NOTICES EFFECTIVE
9.3 A notice given by the Issuer Trustee pursuant to
either clause 9.1 or 9.2 will be effective on the day
which is 3 Business Days after receipt by the Redraw
Facility Provider (or such other period agreed
between
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the Issuer Trustee, the Global Trust Manager and
the Redraw Facility Provider).
10 CHANGED COSTS EVENT
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DETERMINATION
10.1 Subject to clause 19, if, as a result of a Changed
Costs Event, the Redraw Facility Provider determines
that:
(a) there is any direct or indirect change in
the cost to the Redraw Facility Provider of
providing, agreeing to provide, maintaining
its commitment to provide, funding or
maintaining financial accommodation under
this agreement;
(b) there is any direct or indirect change in
any amount received or receivable by the
Redraw Facility Provider in the effective
return to the Redraw Facility Provider in
connection with financial accommodation
provided or to be provided under this
agreement (including, without limitation,
the return on the Redraw Facility Provider's
overall capital which could have been
achieved but for the occurrence of the
Changed Costs Event); or
(c) the Redraw Facility Provider is required to
make a payment or to forgo interest or other
return on or calculated by reference to an
amount received or receivable under this
agreement,
then the Issuer Trustee must on the direction of the
Global Trust Manager pay (if applicable) to the
Redraw Facility Provider on the next Payment Date the
additional amount which the Redraw Facility Provider
certifies is necessary to compensate the Redraw
Facility Provider for the changed cost, reduction,
payment or forgone interest or other return.
INDIRECT COST
10.2 If the changed cost, reduction, payment or forgone
interest or other return is indirect, the Issuer
Trustee (if applicable) agrees to pay the Redraw
Facility Provider the proportion of it which the
Redraw Facility Provider determines to be fairly
attributable to the financial accommodation made
available under this agreement.
CERTIFICATE
10.3 The Redraw Facility Provider must provide a
certificate to the Global Trust Manager setting out
details of the relevant Changed Costs Event and the
calculations made by the Redraw Facility Provider to
determine the new amount payable under clause 10.1.
Any such certificate signed by the Redraw Facility
Provider as to an amount payable by the Issuer
Trustee under this clause 10 is conclusive evidence
of the amount stated in it in the absence of manifest
error. In determining additional amounts payable
under this clause 10, the Redraw Facility Provider
may use averaging and attribution methods commonly
used by financiers or any other reasonable averaging
or attribution method.
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MINIMISATION
10.4 If the Redraw Facility Provider is to receive any
additional payment under clause 10.1, the Redraw
Facility Provider must use its best endeavours to
make the relevant advances or financial
accommodation available by some alternative means
(including, without limitation, changing its
lending office or making the advances or financial
accommodation available through a Related Entity
of the Redraw Facility Provider) which would avoid
the necessity for the additional payment or reduce
the amount of it. Nothing in this clause 10.4
affects the obligations of the Issuer Trustee
under clauses 10.1 and 10.2.
11 ILLEGALITY
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11.1 If as a result of any change in a law, regulation,
code of practice or an official directive which has
the force of law or compliance with which is in
accordance with the practice of responsible bankers
in the jurisdiction concerned, or in their
interpretation or administration after the date of
this agreement, the Redraw Facility Provider
determines that it is or has become apparent that it
will become contrary to that official directive,
impossible or illegal for the Redraw Facility
Provider to fund, provide or maintain financial
accommodation or otherwise observe its obligations
under this agreement then the Issuer Trustee, on the
immediately following Payment Date, must, to the
extent that there are Principal Collections available
on that Payment Date, prepay so much of the Redraw
Principal Outstanding as the Redraw Facility Provider
specifies to the Issuer Trustee in writing together
with accrued interest and other amounts payable by
the Issuer Trustee under this agreement. The Redraw
Facility Provider's obligations to the Issuer Trustee
under this agreement terminate on the giving of the
notice.
11.2 If, on any Payment Date, all amounts due in
accordance with clause 11.1 are not paid or repaid in
full, on each following Payment Date the Issuer
Trustee will pay or repay so much of the amounts as
there are funds available for that purpose on that
Payment Date in accordance with the Supplemental Deed
until such amounts are paid or repaid in full.
12 PAYMENTS AND TAXES
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MANNER OF PAYMENT
12.1 The Issuer Trustee agrees to make payments to the
Redraw Facility Provider under this agreement not
later than 5.00pm local time in the place of payment
on the due date in immediately available funds to the
account of the Redraw Facility Provider at the bank
which the Redraw Facility Provider designates by
prior written notice to the Issuer Trustee. All
payments must be made in accordance with the Master
Trust Deed and the Supplemental Deed.
NO SET OFF, ETC
12.2 The Issuer Trustee agrees to make payments under this
agreement without set-off or counterclaim and free
and clear of any withholding or deduction for Taxes
unless prohibited by law.
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13 REPRESENTATIONS AND WARRANTIES
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GENERAL REPRESENTATIONS AND WARRANTIES
13.1 The Issuer Trustee represents and warrants to the
Redraw Facility Provider as follows:
(a) (INCORPORATION) it is validly incorporated
and existing under the laws pursuant to
which it purports to have been incorporated;
(b) (CORPORATE POWER) it has the corporate power
to own its assets and to carry on its
business as it is now being conducted and as
proposed to be conducted under this
agreement and under each of the Transaction
Documents to which it is a party;
(c) (POWER) it has full power and authority to
enter into and perform its obligations under
this agreement and each of the Transaction
Documents to which it is a party;
(d) (ALL ACTION TAKEN) it has taken all
necessary internal corporate action to
authorise the execution, delivery and
performance of this agreement and each of
the Transaction Documents to which it is a
party in accordance with their respective
terms and no additional approval or consent
of any person is required;
(e) (VALIDITY OF OBLIGATIONS) this agreement and
each of the Transaction Documents to which
it is a party constitute legal, valid and
binding obligations of it and, subject to
any necessary stamping and registration and
to doctrines of equity and laws and defences
generally affecting creditors' rights, are
enforceable in accordance with their
respective terms;
(f) (NO VIOLATION) the execution, delivery and
performance by it of this agreement and each
of the Transaction Documents to which it is
a party does not and will not violate in any
respect any material provision of:
(i) any law, regulation, authorisation,
ruling, consent, judgement, order
or decree of any Governmental
Agency; or
(ii) its constitution; or
(iii) any Encumbrance or document which
is binding upon it or any of its
assets,
and (except in respect of the Deed of
Charge) does not and will not result in:
(iv) the creation or imposition of any
Encumbrance or restriction of any
nature on any of its assets under
the provision of; or
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(v) the acceleration of the date of
payment of any obligation existing
under,
any Encumbrance or document which is binding
upon it or its assets;
(g) (AUTHORISATIONS) it has obtained all
Authorisations necessary for it to enter
into, and perform its obligations under, the
Transaction Documents and such
Authorisations remain in full force and
effect;
(h) (NO REDRAW EVENT OF DEFAULT) to its
knowledge no Redraw Event of Default or
event which with the giving of notice, lapse
of time or other applicable condition would
become a Redraw Event of Default has
occurred which has not been waived or
remedied in accordance with this agreement;
(i) (CREATION OF TRUST) the Trust has been
validly created;
(j) (APPOINTMENT OF ISSUER TRUSTEE) it has been
validly appointed as the trustee of the
Trust;
(k) (SOLE TRUSTEE) it is the sole trustee of the
Trust;
(l) (TRUST POWER) it has power under the
Transaction Documents to enter into, perform
and comply with its obligations, and to
carry out the transactions contemplated by,
this agreement;
(m) (NO REMOVAL) as far as it is aware, there
are no proceedings to remove it as trustee
of the Trust; and
(n) (VESTING DATE) the vesting date has not
occurred in respect of the Trust.
13.2 The Global Trust Manager represents and warrants to
the Redraw Facility Provider as follows:
(a) (INCORPORATION) it is validly incorporated
and existing under the laws pursuant to
which it purports to have been incorporated;
(b) (CORPORATE POWER) it has the corporate power
to own its assets and to carry on its
business as it is now being conducted and as
proposed to be conducted under this
agreement and under each of the Transaction
Documents to which it is a party;
(c) (POWER) it has full power and authority to
enter into and perform its obligations under
this agreement and each of the Transaction
Documents to which it is a party;
(d) (ALL ACTION TAKEN) it has taken all
necessary internal corporate action to
authorise the execution, delivery and
performance of this agreement and each of
the Transaction Documents to which it is a
party in accordance with their respective
terms
<PAGE>
15
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and no additional approval or consent of
any person is required;
(e) (VALIDITY OF OBLIGATIONS) this agreement and
each of the Transaction Documents to which
it is a party constitute legal, valid and
binding obligations of it and, subject to
any necessary stamping and registration and
to doctrines of equity and laws and defences
generally affecting creditors' rights, are
enforceable in accordance with their
respective terms;
(f) (NO VIOLATION) the execution, delivery and
performance by it of this agreement and each
of the Transaction Documents to which it is
a party does not and will not violate in any
respect any material provision of:
(i) any law, regulation, authorisation,
ruling, consent, judgement, order
or decree of any Governmental
Agency; or
(ii) its constitution;
(g) (AUTHORISATIONS) it has obtained all
Authorisations necessary for it to enter
into, and perform its obligations under, the
Transaction Documents and such
Authorisations remain in full force and
effect; and
(h) (NO REDRAW EVENT OF DEFAULT) to its
knowledge no Redraw Event of Default or
event which with the giving of notice, lapse
of time or other applicable condition would
become a Redraw Event of Default has
occurred which has not been waived or
remedied in accordance with this agreement.
REPETITION
13.3 These representations and warranties are taken to be
also made on each date upon which a Drawdown Notice
is provided and each Payment Date with reference to
the facts and circumstances then subsisting, as if
made on such day.
14 GENERAL UNDERTAKINGS BY ISSUER TRUSTEE
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14.1 The Issuer Trustee undertakes to:
(a) (ACT AS TRUSTEE) act continuously as trustee
of the Trust in accordance with the Master
Trust Deed and the Supplemental Deed until
the Trust is terminated or until it has
retired or been removed in accordance with
the Master Trust Deed;
(b) (TAKE ACTIONS) do everything and take all
such actions which are necessary (including,
without limitation, obtaining all such
Authorisations and approvals as are
appropriate) to ensure that it is able to
exercise all its powers and remedies and
perform all its obligations under this
agreement and any other arrangements entered
by it pursuant to the Transaction Documents
to which it is party;
<PAGE>
16
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(c) (AUTHORISATIONS) ensure that each
Authorisation required for it to act as
trustee of the Trust and for the business of
the Trust to be conducted as now conducted
or as contemplated by the Transaction
Documents, is obtained and promptly renewed
and maintained in full force and effect;
(d) (NOT AMEND) not consent to amend or revoke
the provisions of the Master Trust Deed
(insofar as it affects the Trust) or the
Supplemental Deed without the prior written
consent of the Redraw Facility Provider
(such consent not to be unreasonably
withheld or delayed); and
(e) (EVENT OF DEFAULT) notify the Redraw
Facility Provider as soon as practicable
after becoming aware of an Event of Default
or a Redraw Event of Default.
14.2 The Global Trust Manager undertakes to:
(a) (TAKE ACTIONS) do everything and take all
such actions which are necessary (including,
without limitation, obtaining all such
Authorisations and approvals as are
appropriate) to ensure that it is able to
exercise all its powers and remedies and
perform all its obligations under this
agreement and any other arrangements entered
by it pursuant to the Transaction Documents
to which it is party;
(b) (AUTHORISATIONS) ensure that each
Authorisation required for it to act as
manager of the Trust and for the business of
the Trust to be conducted as now conducted
or as contemplated by the Transaction
Documents, is obtained and promptly renewed
and maintained in full force and effect;
(c) (EVENT OF DEFAULT) notify the Redraw
Facility Provider as soon as practicable
after becoming aware of an Event of Default
or a Redraw Event of Default;
(d) (ACT AS MANAGER) act continuously as manager
of the Trust in accordance with the Master
Trust Deed and the Supplemental Deed until
the Trust is terminated or until it has
retired or been removed in accordance with
the Master Trust Deed; and
(e) (NOT AMEND) not consent to amend or revoke
the provisions of the Master Trust Deed
(insofar as it affects the Trust) or the
Supplemental Deed without the prior written
consent of the Redraw Facility Provider
(such consent not to be unreasonably
withheld or delayed).
<PAGE>
17
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15 REDRAW EVENTS OF DEFAULT
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REDRAW EVENTS OF DEFAULT
15.1 A Redraw Event of Default occurs if:
(a) (FAILURE TO PAY) the Issuer Trustee fails to
pay:
(i) any amount owing under this
agreement where funds are available
for that purpose under the
Supplemental Deed; or
(ii) any amount due in respect of
interest pursuant to clause 6 where
funds are available for that
purpose under the Supplemental
Deed,
in the manner contemplated by this
agreement, in each case within 5 Business
Days of the due date for payment of such
amount;
(b) (BREACH OF UNDERTAKING) the Issuer Trustee
alters the priority of payments under the
Transaction Documents without the consent of
the Redraw Facility Provider or breaches any
of its undertakings under the Transaction
Documents which affect its ability to
perform its obligations thereunder and that
breach has a Material Adverse Effect in
respect of the Redraw Facility Provider;
(c) (EVENT OF DEFAULT) an Event of Default
occurs in respect of the Trust and the
Security Trustee (acting on the instructions
of the Secured Creditors) appoints a
Receiver to the Assets of the Trust or is
directed to sell or otherwise realise the
Assets of the Trust in accordance with the
Master Security Trust Deed and the Deed of
Charge; or
(d) (INSOLVENCY EVENT) an Insolvency Event
occurs in respect of the Issuer Trustee in
its capacity as trustee of the Trust and the
Issuer Trustee is not replaced (by either
the Global Trust Manager or a replacement
trustee) in accordance with the Master Trust
Deed within 30 days of such Insolvency
Event.
CONSEQUENCES
15.2 If a Redraw Event of Default occurs, then the Redraw
Facility Provider may:
(a) declare at any time that the Redraw
Principal Outstanding, interest on the
Redraw Principal Outstanding, and all other
amounts actually or contingently payable
under this agreement are immediately due and
payable; and/or
(b) terminate the Redraw Facility Provider's
obligations in respect of the Redraw
Facility.
The Redraw Facility Provider may do either or both of
these things with immediate effect.
<PAGE>
18
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16 NOTICES
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NOTICE
16.1 A notice, approval, consent or other communication in
connection with this agreement:
(a) may be given by an Authorised Person of the
relevant party;
(b) must be in writing; and
(c) must be left at the address of the addressee
or sent by prepaid ordinary post to the
address of the addressee or sent by
facsimile to the facsimile number of the
addressee, or sent by e-mail to the e-mail
address of the addressee specified below (or
to such other details as are notified by a
party to each other party on or after the
date of execution of this agreement):
ISSUER TRUSTEE:
Address: Level 3
39 Hunter Street
Sydney NSW 2000
Facsimile: (612) 9221 7870
Attention: Manager, Securitisation
E-mail: as notified from time to time
GLOBAL TRUST MANAGER:
Address: 7301 Baymeadows Way
Jacksonville Florida 32256
United States of America
Facsimile: 904 281 3062
Attention: General Counsel
E-mail: [email protected]
REDRAW FACILITY PROVIDER:
Address: 3rd Floor South
271 Collins Street
Melbourne VIC 3000
Facsimile: (613) 9659 6927
Attention: Senior Executive, Securitisation
E-mail: [email protected].
com.au
WHEN EFFECTIVE
16.2 Unless a later time is specified in it, a notice,
approval, consent or other communication takes effect
from the time it is received.
SECURED RECEIPT
16.3 A notice, request, certificate, demand, consent or
other communication under this agreement is deemed to
have been received:
(a) where delivered in person, upon receipt;
(b) where sent by post, on the third (or
seventh, if outside Australia) day after
posting;
<PAGE>
19
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(c) where sent by facsimile, on production by
the dispatching facsimile machine of a
transmission report which indicates that the
facsimile was sent in its entirety to the
facsimile number of the recipient; and
(d) in the case of an e-mail, on receipt by the
sender of an e-mail from the recipient
stating that the e-mail was delivered in its
entirety and the contents and attachments of
the e-mail have been received.
However, if the time of deemed receipt of any notice
is not before 4.00pm local time on a Business Day at
the address of the recipient it is deemed to have
been received at the commencement of business on the
next Business Day.
17 SECURITY INTERESTS AND ASSIGNMENT
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Other than as contemplated by the Transaction
Documents, the Issuer Trustee may not, without the
consent of the Redraw Facility Provider, create or
allow to exist a Security Interest over, or an
interest in, this agreement or assign or otherwise
dispose of or deal with its rights under this
agreement. The Redraw Facility Provider at any time
may do any of those things.
18 MISCELLANEOUS
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CERTIFICATE
18.1 A certificate signed by the Redraw Facility Provider
about a matter (including, without limitation, the
Interest Rate in respect of a Redraw Drawing) or
about a sum payable to the Redraw Facility Provider
in connection with this agreement is sufficient
evidence of the matter or sum stated in the
certificate unless the matter or sum is proved to be
false.
EXERCISE OF RIGHTS
18.2 A party may exercise a right, power or remedy at its
discretion, and separately or concurrently with
another right, power or remedy. A single or partial
exercise of a right, power or remedy by the party
does not prevent a further exercise of that or an
exercise of any other right, power or remedy. Failure
by the party to exercise or delay in exercising a
right, power or remedy does not prevent its exercise.
The party is not liable for any loss caused by the
exercise or attempted exercise of, failure to
exercise, or delay in exercising, the right, power or
remedy.
WAIVER AND VARIATION
18.3 A provision of, or a right created under, this
agreement may not be waived or varied except in
writing signed by the party or parties to be bound.
SUPERVENING LEGISLATION
18.4 Any present or future legislation which operates to
vary the obligations of the Issuer Trustee in
connection with this agreement with the result
<PAGE>
20
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that the Redraw Facility Provider's rights, powers or
remedies are adversely affected (including, without
limitation, by way of delay or postponement) is
excluded except to the extent that its exclusion is
prohibited or rendered ineffective by law.
APPROVALS AND CONSENT
18.5 The Redraw Facility Provider may give (conditionally
or unconditionally) or withhold its approval or
consent in its absolute discretion unless this
agreement expressly provides otherwise.
REMEDIES CUMULATIVE
18.6 The rights, powers and remedies provided in this
agreement are cumulative with, and not exclusive of,
the rights, powers or remedies provided by law
independently of this agreement.
INDEMNITIES
18.7 Each indemnity in this agreement is a continuing
obligation, separate and independent from the other
obligations of the Issuer Trustee and survives
termination of this agreement. It is not necessary
for the Redraw Facility Provider to incur expense or
make payment before enforcing a right of indemnity
conferred by this agreement.
TIME OF THE ESSENCE
18.8 Time is of the essence of this agreement in respect
of an obligation of the Issuer Trustee to pay money.
FURTHER ASSURANCES
18.9 At the Redraw Facility Provider's request the Issuer
Trustee must, at the expense of the Trust:
(a) execute and use its best endeavours to cause
its successors to execute documents and do
everything else necessary or appropriate to
bind the Issuer Trustee and its successors
under this agreement; and
(b) use its best endeavours to cause relevant
third parties to do likewise to bind every
person intended to be bound under this
agreement.
19 LIABILITY OF ISSUER TRUSTEE AND LIMITED RECOURSE
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Clause 2 of the Definitions Schedule applies to this
agreement as if set out in full in it (with any
consequential changes as are necessary to give effect
to that clause in this agreement).
20 GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS
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GOVERNING LAW
20.1 This agreement is governed by the law in force in the
Australian Capital Territory.
SUBMISSION TO JURISDICTION
20.2 Each party irrevocably and unconditionally submits to
the non-exclusive jurisdiction of the courts of the
Australian Capital Territory
<PAGE>
21
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and courts of appeal from them. Each party waives
any right it has to object to an action being
brought in those courts including, without
limitation, by claiming that the action has been
brought in an inconvenient forum or that those
courts do not have jurisdiction.
ADDRESS FOR SERVICE
20.3 Without preventing any other mode of service, any
document in an action (including, without limitation,
any writ of summons or other originating process or
any third or other party notice) may be served on any
party by being delivered to or left for that party at
its address for service of notices under clause 16.
21 COUNTERPARTS
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This agreement may consist of a number of
counterparts and the counterparts taken together
constitute one and the same instrument.
22 COSTS, CHARGES, EXPENSES AND INDEMNITIES
------------------------------------------------------------------------------
22.1 The Issuer Trustee will indemnify the Redraw Facility
Provider on each Payment Date following a demand from
the Redraw Facility Provider for:
(a) the costs, charges and expenses of the
Redraw Facility Provider in connection with
any consent, approval, exercise or
non-exercise of rights (including, without
limitation, in connection with the
contemplated or actual enforcement or
preservation of any rights under any
Transaction Document), waiver, variation,
release or discharge in relation to any
Transaction Document;
(b) Taxes (excluding any Taxes on the overall
net income of the Redraw Facility Provider)
and fees (including, without limitation,
registration fees) and fines and penalties
in respect of these (except where any such
amount is incurred as a result of an act or
omission of the Redraw Facility Provider),
which may be payable or determined to be
payable in connection with any Transaction
Document or a payment or receipt or any
other transaction contemplated by any
Transaction Document; and
(c) costs, charges and expenses of the Redraw
Facility Provider in connection with any
enquiry by any authority involving the
Issuer Trustee, any Secured Creditor or any
of their Related Entities.
22.2 The Issuer Trustee will indemnify the Redraw Facility
Provider against any liability or loss arising from,
and any costs, charges and expenses incurred in
connection with:
(a) an Event of Default in respect of the Trust
or any Redraw Event of Default;
<PAGE>
22
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(b) a proposed Redraw Drawing not being made
available in accordance with the relevant
Drawdown Notice for any reason;
(c) any payment required to be made under any
Transaction Document not being made on its
due date in accordance with that document;
(d) the Redraw Facility Provider acting in
connection with a Transaction Document in
good faith on facsimile or telephone
instructions purporting to originate from
the offices of the Issuer Trustee including,
without limitation, liability, loss, costs,
charges or expenses on account of funds
borrowed, contracted for or used to fund any
amount payable under the Transaction
Document and including, in each case (but
without limitation), legal costs and
expenses on a full indemnity basis or
solicitor and own client basis, whichever is
the higher; or
(e) a breach by the Issuer Trustee of any
representation and warranty contained in
clause 13.1 of this agreement or of any of
its obligations under this agreement.
22.3 The Issuer Trustee agrees to pay to the Redraw
Facility Provider an amount equal to any liability,
loss, cost, charge or expense of the kind referred to
in clause 22.2 suffered or incurred by any employee,
officer, agent or contractor of the Redraw Facility
Provider.
22.4 The obligation of the Issuer Trustee under this
clause shall:
(a) be payable solely to the extent that funds
are available for that purpose under the
Supplemental Deed; and
(b) survive any termination of this agreement.
22.5 The indemnities in clauses 22.1, 22.2 and 22.3 do not
extend to any liability, loss, cost, charge or
expense that is finally and judicially determined to
result from any negligence, wilful default or breach
of law by the Redraw Facility Provider.
22.6 If the Redraw Facility Provider receives written
notice of any act, matter or thing which may give
rise to a liability, loss, cost, charge or expense in
relation to which the Issuer Trustee would be
required to indemnify it under clauses 22.1, 22.2 or
22.3, the Redraw Facility Provider will notify the
Issuer Trustee of that act, matter or thing giving
such details as it is practicable to give as soon as
it is reasonably practicable and in any event within
5 Business Days of it coming to its attention,
provided that failure to do so will not result in any
loss or reduction in the indemnity contained in
clauses 22.1, 22.2 or 22.3 unless the Issuer Trustee
has been prejudiced in any material respect by such
failure.
<PAGE>
23
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23 REDRAW FACILITY PROVIDER TERMINATION DATE
------------------------------------------------------------------------------
23.1 Subject to clause 23.2, the Global Trust Manager may
by giving not less than 5 Business Days notice to the
Redraw Facility Provider and the Issuer Trustee,
declare a Payment Date as the date upon which:
(a) the Redraw Facility Provider will be
replaced by a substitute Redraw Facility
Provider; and
(b) the Redraw Facility will terminate.
23.2 On or before the declaration of the Payment Date by
the Global Trust Manager in accordance with clause
23.1, the Global Trust Manager must obtain written
confirmation from the Current Rating Agencies that
the termination of the Redraw Facility and the
appointment of the proposed substitute Redraw
Facility Provider on that Payment Date will not
result in an Adverse Rating Effect.
23.3 The Redraw Facility Provider Termination Date will be
the later of:
(a) the Payment Date declared in accordance with
clause 23.1; and
(b) the date upon which the Issuer Trustee has
paid or repaid to the Redraw Facility
Provider all Redraw Drawings outstanding on
the Payment Date declared in accordance with
clause 23.1 together with all accrued but
unpaid interest and all other money
outstanding under this agreement.
EXECUTED as an agreement.
<PAGE>
24
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SCHEDULE 1 DRAWDOWN NOTICE (CLAUSE 4)
------------------------------------------------------------------------------
To: National Australia Bank Limited
[DATE]
Dear Sirs/Madams
REDRAW FACILITY AGREEMENT BETWEEN PERPETUAL TRUSTEE
COMPANY LIMITED, HOMESIDE GLOBAL MBS MANAGER, INC AND
NATIONAL AUSTRALIA BANK LIMITED DATED [#] ("REDRAW
FACILITY AGREEMENT")
The Issuer Trustee gives notice under clause
4.1 of the Redraw Facility Agreement that it
wants to use the Redraw Facility granted in
respect of the HomeSide Mortgage Securities
Trust 2001-1 ("TRUST").
The particulars of the Redraw Drawing required
to be given under clause 4.3 of the Redraw
Facility Agreement are as follows:
(a) the proposed Drawdown Date is [ ];
(b) the Redraw Drawing is to be made in respect
of the Trust;
(c) the amount of the proposed Redraw Drawing is
$[ ] and its method of calculation is as
follows:
[ ]; and
(d) the proposed Redraw Drawing is to be paid
into the Collections Account.
A term which has a defined meaning in (or is
incorporated in) the Redraw Facility Agreement has
the same meaning as in the Redraw Facility Agreement
when used in this Drawdown Notice.
Yours faithfully
..................................
[name of person]
being an Authorised Person of
PERPETUAL TRUSTEE COMPANY LIMITED
<PAGE>
<TABLE>
<S><C>
25
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EXECUTION PAGE
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SIGNED by )
as attorney for PERPETUAL )
TRUSTEE COMPANY LIMITED )
under power of attorney dated )
)
in the presence of: )
)
................................................ )
Signature of witness )
)
................................................ )
Name of witness (block letters) )
)
................................................ )
Address of witness ) ................................................
) By executing this agreement the attorney states
.......................................... ) that the attorney has received no notice of
Occupation of witness ) revocation of the power of attorney
)
SIGNED by )
on behalf of HOMESIDE GLOBAL )
MBS MANAGER, INC in the presence )
of: )
)
................................................ )
Signature of witness )
)
................................................ )
Name of witness (block letters) )
)
................................................ )
Address of witness )
) ................................................
.......................................... ) By executing this agreement the signatory
Occupation of witness ) states that the signatory has received no
) notice of revocation of the authority under
) which this agreement is executed
<PAGE>
26
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SIGNED by )
as attorney for NATIONAL )
AUSTRALIA BANK LIMITED under )
power of attorney dated )
)
in the presence of: )
)
................................................ )
Signature of witness )
)
................................................ )
Name of witness (block letters) )
)
................................................ )
Address of witness ) ................................................
) By executing this agreement the attorney states
.......................................... ) that the attorney has received no notice of
Occupation of witness ) revocation of the power of attorney
)
</TABLE>
