Lenders' Mortgage
Insurance Provisions
Securitised Tranches
between
Perpetual Trustee Company
Limited as trustee of the
Medallion Trust Series 2006-1G
ABN 42 000 001 007
and
PMI Mortgage Insurance Ltd
ABN 70 000 000 000
and
Commonwealth Bank of
Australia
ABN 48 123 123 124
and
Homepath Pty Limited
ABN 35 081 986 530
Master Agreement Number: G02540306
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Date of Issue: 9 March 2006
1. THE INSURANCE AGREEMENT IS BETWEEN US AND THE INSURED
LENDER AND THE INSURED TRUSTEE.........................................4
2. INTENTIONALLY DELETED...................................................4
3. WE RELY ON STATEMENTS MADE TO US .......................................4
DUTY OF DISCLOSURE......................................................4
NON- DISCLOSURE.........................................................5
4. IF REQUIREMENTS ARE NOT MET.............................................5
5. CONSUMER CREDIT CODE....................................................5
6. ENTERING INTO THE AGREEMENT AND THE ONCE-ONLY FEE.......................5
7. MANAGEMENT OF INSURED MORTGAGE AND LOAN ACCOUNT.........................5
8. ASSIGNMENT OF THIS AGREEMENT............................................6
9. WHAT IF THE BORROWER REQUIRES MORE MONEY?...............................6
LOAN REDRAW.............................................................6
10. CONSTRUCTION AND IMPROVEMENT LOANS......................................6
COST OVERRUNS...........................................................7
11. SECURING AND PROTECTING THE LOAN........................................7
VARIATIONS..............................................................7
12. PROTECTING YOUR RIGHTS..................................................8
13. PROTECTING THE MORTGAGED PROPERTY.......................................8
PROPERTY INSURANCE......................................................8
PROPERTY DAMAGE.........................................................8
CONTAMINATION...........................................................9
14. ACTION FOLLOWING DEFAULT BY THE BORROWER................................9
FIRST REPORTING TO US...................................................9
FURTHER REPORTS........................................................10
CONSULTATION WITH US...................................................10
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RENTS OR OTHER AMOUNTS RECEIVED........................................10
15. HOW AND WHEN TO CLAIM FOR LOSS.........................................10
16. HOW IS THE CLAIM FOR LOSS CALCULATED?..................................11
REDUCTIONS.............................................................12
17. YOU GIVE US YOUR RIGHTS AFTER WE PAY A CLAIM...........................13
18. AFTER A CLAIM IS MADE..................................................13
REFUNDS OF AMOUNTS RECOVERED BY YOU....................................13
SHARING OF RECOVERIES..................................................13
19. TERMINATION OF THE AGREEMENT...........................................13
20. NOTICES, REPORTS AND APPLICATIONS......................................14
21. TRUSTEE PROVISIONS.....................................................14
22. GOVERNING LAW..........................................................15
JURISDICTION...........................................................15
23. PRIVACY LEGISLATION COMPLIANCE.........................................15
24. MEANING OF WORDS.......................................................16
25. SCHEDULE OF VARIABLES..................................................21
SCHEDULE 1 - ELIGIBILITY CRITERIA......................................23
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PMI Lenders' Mortgage Insurance Provisions
SOME WORDS USED IN THE PROVISIONS HAVE SPECIFIED MEANINGS WHICH ARE
LISTED IN CLAUSE 24
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1. THE INSURANCE AGREEMENT IS BETWEEN US AND THE INSURED LENDER AND THE
INSURED TRUSTEE
1.1 The Lenders' Mortgage Insurance Agreement (the Agreement) is a contract
of insurance between Us and the Insured Lender and the Insured Trustee.
A separate Agreement exists in respect of each Insured Mortgage. The
Insured Mortgages are specified in the attached Schedule of Mortgages.
1.2 We agree to provide insurance against Loss on the Insured Mortgage on
the terms set out in these Provisions upon payment of the once-only
fee.
1.3 The Agreement consists of:
1.3.1 these Provisions (including the Schedule of Variables); and
1.3.2 the attached Schedule of Mortgages.
1.4 You are insured to the extent of the Percentage of Insurance and in the
event of a claim you are reimbursed for Your loss in accordance with
these provisions.
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2. INTENTIONALLY DELETED
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3. WE RELY ON STATEMENTS MADE TO US
3.1 The Insured Lender warrants that:-
3.1.1 The particulars and statements in the Application are true and
correct;
3.1.2 The Insured Mortgage meets the Eligibility Criteria; and
3.1.3 The Loan Amount originated according to and in compliance with
the Insured Lender's loan policy at the time of origination.
3.2 To the extent that any warranty is breached, and to the extent
permitted by the Insurance Contracts Xxx 0000, PMI shall be entitled to
deny or reduce its liability in respect of a claim by any insured.
DUTY OF DISCLOSURE
3.3 Before You enter into a contract of insurance with Us, You have a duty,
under the Insurance Contracts Xxx 0000, to disclose to Us every matter
that You know, or could reasonably be expected to know, is relevant to
our decision whether to accept the risk of the insurance and, if so, on
what terms.
3.4 You have the same duty to disclose those matters to Us before You
renew, extend, vary or reinstate a contract of insurance.
3.5 Your duty however does not require disclosure of a matter:
3.4.1 that diminishes the risk to be undertaken by Us; or
3.4.2 that is of common knowledge; or
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3.4.3 that We know or, in the ordinary course of our business, ought
to know; or
3.4.4 as to which compliance with Your duty is waived by Us.
NON- DISCLOSURE
3.6 If You fail to comply with Your duty of disclosure, We may be entitled
to reduce our liability or cancel the Agreement in respect of an
individual claim. If Your non-disclosure is fraudulent, We may also
have the option of avoiding the contract from its beginning.
3.7 If You have made a statement which was in fact untrue but was made on
the basis of a reasonable belief that You held based on information
provided by the Borrower, the statement will not be taken to be a
misrepresentation.
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4. IF REQUIREMENTS ARE NOT MET
4.1 If any of the obligations of the Insured Lender or the Insured Trustee
or both under the Agreement are not met, then to the extent not
prohibited by the Insurance Contracts Xxx 0000:
4.1.1 We may refuse to pay a claim; or
4.1.2 We may reduce the amount of the claim by the amount which in
our opinion reasonably represents the extent to which our
interests have been prejudiced by the failure to meet any such
obligation; or
4.1.3 We may cancel the Agreement.
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5. CONSUMER CREDIT CODE
5.1 The Consumer Credit Code may apply to the Insured Mortgage.
5.2 You are insured for Loss resulting from:
5.2.1 a credit tribunal or court ordering postponement of
enforcement proceedings under Section 88 of the Consumer
Credit Code; or
5.2.2 a change to the Insured Mortgage or Loan Account or both in a
manner set out in Section 66 of the Consumer Credit Code:
(a) agreed to by You with our prior written consent; or
(b) ordered by a credit tribunal or court under Section 68
of the Consumer Credit Code.
5.3 You are not insured for Loss resulting from a credit tribunal or court:
5.3.1 reopening an unjust Insured Mortgage, Collateral Security or
Loan Account under Section 70 of the Consumer Credit Code; or
5.3.2 annulling or reducing any unconscionable interest rate change,
fee or charge under Section 72 of the Consumer Credit Code.
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6. ENTERING INTO THE AGREEMENT AND THE ONCE-ONLY FEE
You pay a once-only fee. This fee is calculated on the Loan amount. You will
also have to pay any applicable stamp duty, GST, and any additional government
duties, levies or charges, where applicable.
You must on or prior to the Closing Date pay to Us the once-only fee, GST and
any additional government duties, levies or charges, where applicable (in such
amount as agreed between Us and the Bank prior to the Closing Date). Until the
once-only fee, GST and any additional
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government duties, levies or charges, where applicable, is received by Us the
Agreement does not come into force. If the once-only fee is not received by Us
on or before the Closing Date the Agreement does not come into force at all.
Following receipt of the once-only fee, We will send You the Certificate stating
the commencement date of insurance and the Expiry date of insurance.
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7. MANAGEMENT OF INSURED MORTGAGE AND LOAN ACCOUNT
7.1 The Insured Mortgage and the Loan Account must be administered and
managed by You or a Mortgage Manager.
7.2 We acknowledge and consent that the Servicer will be the Mortgage
Manager in respect of the Insured Mortgage held by the Insured Trustee
as trustee of the Series Trust.
7.3 Any other Mortgage Manager must be approved by Us in writing.
7.4 We may require You to appoint or replace the Mortgage Manager to
administer and manage the Insured Mortgage and the Loan Account in the
following situations:
7.4.1 Insolvency, liquidation, receivership or statutory management
of You or any existing Mortgage Manager; or
7.4.2 If, after consultation with You, We are of the reasonable
opinion that the administration or management of the Insured
Mortgage and Loan Account is not being conducted
satisfactorily.
7.5 Notwithstanding clause 7.4, We cannot require the Insured Trustee to
replace the Servicer as Mortgage Manager or to appoint a new Mortgage
Manager except to the extent that following a Servicer Default in
relation to the Series Trust, the Insured Trustee is entitled to
appoint a new Servicer in relation to the Series Trust and the Mortgage
Manager proposed by Us is able to be appointed as Servicer in
accordance with the Series Trust provided that:
7.5.1 The Insured Trustee must give Us notice of any circumstances
or events occurring which entitle the Insured Trustee to issue
to the Servicer a notice of termination of the rights and
obligations of the Servicer in relation to the Series Trust
(whether or not such notice is actually issued) within seven
(7) days of the Insured Trustee becoming actually aware (as
determined in accordance with the Series Trust) of such
circumstances or events; and
7.5.2 The Insured Trustee must provide to Us a copy of any such
notice issued to the Servicer under the Series Trust within
seven (7) days of such notice being issued to the Servicer.
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8. ASSIGNMENT OF THIS AGREEMENT
You may assign your rights under the Agreement to someone else only if:
o You have our prior written consent; or
o it is pursuant to a substitution of the Insured Trustee under the
transaction documents for the Series Trust; or
o We have notified You in writing that You may do so without our
consent.
Within thirty (30) days of any assignment You must notify Us in writing and pay
to Us any applicable fee.
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9. WHAT IF THE BORROWER REQUIRES MORE MONEY?
9.1 Our prior consent is required before the advance of funds additional to
the Loan Amount, which are secured by the Insured Mortgage (A Further
Advance).
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9.2 An additional fee, including GST where applicable, is payable by the
Insured Lender before a Further Advance is insured. The Insured Lender
will also have to pay any additional government duties, levies or
charges where applicable.
LOAN REDRAW
9.3 However, our prior consent to a Further Advance in not required if:
9.3.1 the Borrower's payments are equal to or in advance of the
Scheduled Instalments; and
9.3.2 the Borrower only redraws up to the amount by which the
Scheduled Instalments have been exceeded.
9.4 In the case of a Further Advance made in accordance with clause 9.3
such Further Advance is insured and no additional fee is payable.
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10. CONSTRUCTION AND IMPROVEMENT LOANS
10.1 If the purpose of the Insured Mortgage or any part of the Insured
Mortgage is for Improvements to the Mortgaged Property, then We are not
obliged to pay a claim unless:
10.1.1 Before the Initial Loan Advance
(a) the Borrower has entered a fixed price building contract
for completion of the Improvements approved by the
Insured Lender; and
(b) all necessary consents and approvals from relevant
statutory and other authorities are held and are
current; and
10.1.2 During construction
(a) if the Loan Amount is advanced progressively, the
progress advances do not exceed increases in the value
of the Mortgaged Property; and
(b) the Improvements are completed within twelve months of
the Initial Loan Advance; and
(c) an amount of the Loan Amount is retained by the Insured
Lender to ensure that the Improvements can be completed
in accordance with the plans and specifications
incorporated within the fixed price building contract
approved by it; and
10.1.3 Before the Final Loan Advance a valuation Certificate is
provided confirming that the completion of Improvements is in
accordance with the plans and specifications.
COST OVERRUNS
10.2 Cost Overruns must be paid immediately they are identified and prior to
any further progress payments being paid.
10.3 We may decline to meet a claim under the Agreement until the
Improvements for which the Insured Mortgage was made have been
completed.
10.4 If the Insured Lender does not retain sufficient funds to complete the
Improvements, We will deduct from any claim under the Agreement an
amount equal to the additional amount required to complete the
Improvements as assessed by a Valuer instructed by Us.
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11. SECURING AND PROTECTING THE LOAN
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11.1 The Insured Mortgage must be an enforceable registered mortgage over
real estate property in Australia. You are not insured if the Insured
Mortgage is not enforceable.
11.2 You must follow the procedures of a prudent lender in preparing,
administering and managing the Insured Mortgage, any Collateral
Security and the Loan Account.
11.3 The Insured Mortgage must be either:
11.3.1 a first mortgage; or
11.3.2 a second mortgage.
11.4 Where the Insured Mortgage is a second mortgage the following
conditions must be met:
11.4.1 the Insured Lender must be the first mortgagee; and
11.4.2 the first-ranking mortgage must be equitably assigned to the
Insured Trustee on the Closing Date (or such other date as the
Insured Lender and We agree).
11.5 Where the Loan Account is secured by more than one mortgage the
mortgages must be cross collateralised.
VARIATIONS
11.6 Any variation of any Insured Mortgage (including substitution of
security and partial release of security but not including any
variation pursuant to an order by a Credit Tribunal or court) which
results in:
11.6.1 an increase to the Loan Term of the Insured Mortgage beyond
thirty (30) years; or
11.6.2 an increase in the Loan Account in respect of the Insured
Mortgage beyond the Scheduled Loan Balance; or
11.6.3 an increase in the Loan to Value Ratio of the Insured Mortgage
where the resultant Loan to Value Ratio exceeds 80%
will be subject to a new proposal form and a new premium.
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12. PROTECTING YOUR RIGHTS
12.1 During the term of the Agreement You must protect Your rights under
Your Security Interest and in particular:
12.1.1 Your right to take action to recover the Loan Account must
continue to exist; and
12.1.2 Your right to take action to recover the Loan Account must not
be deferred except with our written consent (unless the
deferment is pursuant to an order by a court or a credit
tribunal, in which case You must report such an order to Us
within (fourteen) 14 days of that order being made); and
12.1.3 there must be no Security Interest over the Mortgaged Property
which takes priority over the Insured Mortgage other than:-
(a) those We consent to in writing; or
(b) a first mortgage where the conditions in clause 11 have
been met; or
(c) any Permitted Prior Security Interest.
12.1.4 You must give Us notice in writing of the discharges in whole
of the Insured Mortgage and any Collateral Security during
each six (6) monthly period
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ending 31 May and 30 November in each year within fourteen
(14) days of the end of each such period.
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13. PROTECTING THE MORTGAGED PROPERTY
13.1 The Insured Lender must tell us within sixty (60) days if it becomes
aware that the Mortgaged Property is defective, damaged, has been
vacated or is contaminated.
PROPERTY INSURANCE - INTENTIONALLY DELETED
PROPERTY DAMAGE
13.3 If the Mortgaged Property suffers any damage or destruction (except
reasonable wear and tear), the Insured Lender must ensure that it is
restored as nearly as possible to its condition at the date of
commencement of the Agreement if so required by us where we have formed
the reasonable opinion that this will reduce the amount that may be
claimed by you under the Agreement.
13.4 The costs of restoration are not insured under the Agreement.
13.5 However if the purpose of the Insured Mortgage or any part of the
Insured Mortgage is for Improvements to the Mortgaged Property We will
meet a claim under the Agreement only when the Improvements have been
completed.
13.6 The Insured Lender must ensure that it is a term of the Insured
Mortgage that the mortgagor under the Insured Mortgage must:
13.6.1 keep the Mortgaged Property in good condition and fix any
defect; and
13.6.2 not do anything or allow anything to be done that might lower
the value of the Mortgaged Property; and
13.6.3 tell You if the Mortgaged Property is seriously damaged or
defective; and
13.6.4 comply with all laws, requirements, orders and notices of
authorities in connection with the Mortgaged Property.
CONTAMINATION
13.7 If there is Contamination of the Mortgaged Property the Insured Lender
must ensure that the Contaminant has been removed and the Mortgaged
Property is cleared up and restored as nearly as possible to its
condition at the date of commencement of the Agreement where We have so
advised You, having formed the reasonable opinion that this will reduce
the amount that may be claimed by You under the Agreement.
13.8 The Insured Lender must ensure that it is a term of the Insured
Mortgage that the Mortgagor:
13.8.1 declares that the Mortgaged Property is free from any unlawful
Contamination; and
13.8.2 must remove any Contamination and clear up any Contamination,
if the Mortgaged Property is contaminated.
13.9 The costs of removal, clean up and restoration of the Mortgaged
Property arising from Contamination are not insured under this
Agreement.
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14. ACTION FOLLOWING DEFAULT BY THE BORROWER
14.1 In the event of default by the Borrower You must follow the procedures
of a prudent lender in administering and managing the Insured Mortgage,
any Collateral Security and the Loan Account.
FIRST REPORTING TO US
14.2 Any of the following events must be reported to Us in writing within
fourteen (14)days:
14.2.1 the total amount due and unpaid under the Insured Mortgage or
Loan Account or both at the end of a month is equal to or
exceeds the total of ninety (90) days arrears; or
14.2.2 the Loan Amount is not repaid at the expiry of the Loan Term;
or
14.2.3 You take possession of the Mortgaged Property; or
14.2.4 You become aware:
(a) there has been a default under a mortgage over the
Mortgaged Property other than the Insured Mortgage; or
(b) another mortgagee intends to sell or has sold the
Mortgaged Property; or
(c) an application for winding up or administration or a
petition for bankruptcy has been or is to be lodged in
relation to the Borrower or any Guarantor; or
(d) any meeting of the members or shareholders of the
Borrower or any Guarantor is convened for the purpose of
considering any resolution to wind up that Borrower or
Guarantor or to put it under administration; or
(e) the Borrower or any Guarantor has assigned its estate
for the benefit of creditors generally; or
(f) a receiver or manager has been appointed to the Borrower
or any Guarantor; or
(g) the Borrower intends to sell the Mortgaged Property in
circumstances where a claim under the Agreement is
likely to result; or
(h) there has been any other default under the terms of the
Insured Mortgage or Loan Account; or
(i) of any material event or circumstance relating to the
Mortgaged Property or any Collateral Security or both
arising after the date of commencement of the Agreement.
FURTHER REPORTS
14.3 At monthly or other intervals nominated by Us, the Insured Lender must
provide Us with updated written reports and any documents about or
affecting any reported default or event.
CONSULTATION WITH US
14.4 You must continue to consult with Us following a default by the
Borrower or any Guarantor.
14.5 You must not, without prior written notice to Us:
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14.5.1 enter into possession of the Mortgaged Property, sell it, take
foreclosure action or appoint any receiver or manager of the
Mortgaged Property;
14.5.2 commence any legal proceedings in relation to the Insured
Mortgage or any Collateral Security; or
14.5.3 if the Consumer Credit Code applies to the Insured mortgage,
take any Enforcement Proceedings or make any application to a
court in relation to the Insured mortgage or any Collateral
Security.
In this clause 14.4:
Enforcement proceedings has the same meaning as that term has under the
Consumer Credit Code.
A court includes any court as defined under the Consumer Credit Code.
Applications to a court may include applications under section 101 of
the Consumer Credit Code.
RENTS OR OTHER AMOUNTS RECEIVED
14.6 Any rents or profits or other amounts You receive relating to the
Mortgaged Property or any Collateral Security are to be credited to the
Loan Account.
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15. HOW AND WHEN TO CLAIM FOR LOSS
15.1 A claim for Loss may be submitted:
15.1.1 when the sale of the Mortgaged Property has been settled; or
15.1.2 when We ask before the Mortgaged Property is sold; or
15.1.3 when the mortgagee under a prior mortgage has completed the
sale of the Mortgage Property.
15.2 The claim should be lodged within thirty (30) days of:
15.2.1 the Settlement Date; or
15.2.2 a request from Us.
15.3 In support of the claim we must be provided with all documents and
information We reasonably require.
15.4 Any payment of a claim We make is a full and final discharge of our
liability under the Agreement. Payment of a claim to the Insured Lender
will be a full and final discharge of any liability to pay a claim to
the Insured Trustee and payment of a claim to the Insured Trustee will
be a full and final discharge of any liability to pay a claim to the
Insured Lender.
15.5 At our discretion We may pay a claim before the Mortgaged Property has
been sold.
15.6 Within fourteen (14) days of receipt by Us of the complete claim
documentation including all documentation and information reasonably
required by Us We will assess the claim and pay the amount recoverable
under this Agreement.
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16. HOW IS THE CLAIM FOR LOSS CALCULATED?
16.1 The Loss is the amount owing less the amount recovered as defined
below:
16.2 Amount owing is the total of:
16.2.1 Balance of the Loan Account at the Settlement Date; and
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16.2.2 Interest on the balance of the Loan Account from the
Settlement Date to the date of claim to a maximum of thirty
(30) days; and
16.2.3 Any GST incurred on the sale or transfer of the Mortgaged
Property to a third party in or towards the satisfaction of
any debt that the Borrower owed under the Loan Account, and
any GST which is properly incurred in respect of any of the
costs, fees, disbursements or commissions specifically
included under clause 16.2.4; and
16.2.4 Costs incurred on sale of the Mortgaged Property which
include:
(a) Costs properly incurred for insurance premiums, rates,
land tax (calculated on a single holding basis) and
other statutory charges on the Mortgaged Property; and
in respect of amounts payable to a body corporate,
service company or equivalent in relation to the
Mortgaged Property,
(b) Reasonable and necessary legal fees and disbursements
incurred in enforcing or protecting rights under the
Insured Mortgage including the reasonable fees and
disbursements of the Servicer's internal legal
department; and
(c) Reasonable agent's commission, advertising costs,
valuation costs and other costs relating to the sale of
the Mortgaged Property; and
(d) Reasonable and necessary costs incurred by You in
maintaining (but not restoring) the Mortgaged Property,
however total costs in excess of $1,500 can be included
only with Our prior written consent to incur them; and
(e) Any amounts applied with Our prior written consent to
discharge a Security Interest having priority over the
Insured Mortgage.
16.3 Amount owing does not include:
16.3.1 Interest charged in advance; and
16.3.2 Default rate interest; and
16.3.3 Higher rate interest payable because of failure to make prompt
payment; and
16.3.4 Fines, fees or charges debited to the Loan Account (except for
any monthly account keeping fee, switching fee or loan
establishment fee); and
16.3.5 Costs of restoration following damage to or destruction of the
Mortgaged Property; and
16.3.6 Costs of removal, clean up and restoration arising from
Contamination of the Mortgaged Property; and
16.3.7 Additional funds advanced to the Borrower without Our written
consent other than any loan redraws in accordance with clause
9; and
16.3.8 Amounts paid in addition to the Loan Amount to complete
Improvements; and
16.3.9 Cost Overruns; and
16.3.10 Any civil or criminal penalties imposed under legislation
including the Consumer Credit Code.
16.4 Amount recovered is the total of:
16.4.1 The gross proceeds of sale of the Mortgaged Property; and
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16.4.2 Early Repayment Fees; and
16.4.3 Break Funding Costs; and
16.4.4 The following if not already applied to the credit of the Loan
Account:
(a) Compensation received for any part of the Mortgaged
Property or any Collateral Security that has been
resumed or compulsorily acquired; and
(b) all rents collected and other profits received relating
to the Mortgaged Property or any Collateral Security;
and
(c) any sums received under any insurance policy relating to
the Mortgaged Property not applied to restoration of the
Mortgaged Property following damage or destruction; and
(d) all amounts recovered from the exercise of rights
relating to any Collateral Security; and
(e) any other amount received relating to the Insured
Mortgage or any Collateral Security including any
amounts received from the Borrower, any Guarantor, or
prior mortgagee.
REDUCTIONS
16.5 Where a claim has been made and the Loss has been increased due to the
consent, without our written approval, to:
16.5.1 the creation of any lease, license, easement, restriction or
other notification affecting the Mortgaged Property; or
16.5.2 an increase in or acceleration of the payment obligation of
the Borrower under any Security Interest having priority over
the Insured Mortgage; then
We may reduce the amount payable to You by that increased Loss.
16.6 Where the Loss has been increased due to the making of any false or
misleading statement, assurance or representation to the Borrower or
any Guarantor, We may reduce the amount paid in the event of a claim by
that increase in the Loss.
16.7 Where We pay any claim the amount of that payment will be less the
amount of any GST input tax credit or reduced input tax credit
(together Input Tax Credit) entitlement You may have with respect to
the items included in the claim for Loss.
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17. You give Us Your rights after We pay a claim
17.1 After We pay a claim We may require You to:
17.1.1 assign the Insured Mortgage and any Collateral Security to Us;
or
17.1.2 appoint Us Your attorney to exercise any of Your rights under
the Insured Mortgage and any Collateral Security.
17.2 You must comply with our reasonable requests for assistance to recover
from the Borrower or any Guarantor or both the amount We pay to You in
the event of a claim.
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18. AFTER A CLAIM IS MADE
REFUNDS OF AMOUNTS RECOVERED BY YOU
18.1 Any amount You recover relating to the Insured Mortgage or any
Collateral Security after You have made a claim must be paid to Us.
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SHARING OF RECOVERIES
18.2 However, if You sustain a Loss on the Loan Account after the sale of
the Mortgaged Property and payment of a claim by Us, any recoveries
under the Insured Mortgage or any Collateral Security, will be shared
between You and Us on a pro-rata basis.
18.3 The calculation of the pro-rata sharing shall exclude any amounts
relating to debts owed by the Borrower independent of the Loan Account
such as personal loans or credit card debts.
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19. TERMINATION OF THE AGREEMENT
19.1 The Agreement terminates:
19.1.1 when the Loan Account is repaid in full; or
19.1.2 on the Expiry Date of the Insurance as set out in the Schedule
of Mortgages, however if before fourteen (14) days after the
Expiry Date of the Insurance You have given Us notice of
default under the Insured Mortgage the Agreement will continue
solely for the purpose of a claim; or
19.1.3 when We pay a claim; or
19.1.4 upon cancellation of the Agreement in accordance with the
Insurance Contracts Xxx 0000.
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20. NOTICES, REPORTS AND APPLICATIONS
Notices, reports and the Application to Us are to be provided to:
PMI Mortgage Insurance Ltd.
Xxxxx 00, 00 Xxxxxx Xxxxxx
XXXXXX XXX 0000
Facsimile No: 02 9251 5550
or to any other address We specify in writing.
Notices to the Insured Lender are to be provided to the address stated
in the Schedule of Variables or any other address the Insured Lender
may specify in writing.
Notices to the Insured Trustee are to be provided to the address stated
in the Schedule of Variables or any other address the Insured Trustee
may specify in writing.
Where agreed between You and Us notices, reports and applications may
be provided by mutually acceptable methods of electronic communication.
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21. TRUSTEE PROVISIONS
21.1 The Insured Trustee enters into the Agreement only its capacity as
trustee of the Series Trust and in no other capacity. A liability
arising under or in connection with the Agreement is limited to and can
be enforced against the Insured Trustee only to the extent to which it
can be satisfied out of the property of the Series Trust (as case may
be) out of which the Insured Trustee is actually indemnified for the
liability. This limitation of the Insured Trustee's liability or
obligations under the Agreement applies despite any other provision of
the Agreement other than clause 21.3 and extends to all liabilities and
obligations in any way connected with any representation, warranty,
conduct, omission, agreement or transaction related to the Agreement.
21.2 The parties other than the Insured Trustee may not xxx the Insured
Trustee in any capacity other than as trustee of the Series Trust,
including seeking the appointment of a receiver (except in relation to
the property of Series Trust, as the case may be), a liquidator, an
administrator or any similar person to the Insured Trustee or prove in
any liquidation, administration or arrangement of, or affecting the
Insured Trustee (except in relation to the property of Series Trust, as
the case may be).
21.3 The provisions of this clause 21 shall not apply to any obligation or
liability of the Insured Trustee to the extent that the Insured Trustee
is not actually indemnified for the obligation or liability as a result
of the Insured Trustee's fraud, negligence or breach of trust.
21.4 For the purposes of clause 21.3 it is agreed that the Insured Trustee
cannot be regarded as being fraudulent, negligent or in breach of trust
to the extent to which any failure by the Insured Trustee to satisfy
its liabilities or obligations or breach of representation or warranty
under the Agreement has been caused or contributed to by a failure of
the Insured Lender, the Servicer, the Loan Originator, Mortgage Manager
or the Trust Manager (being the Manager referred to in the Series
Supplement) or any other person (other than a person whose acts or
omissions the Insured Trustee is liable for in accordance with any
Transaction Document) to fulfil its obligations in relation to the
Series Trust, or any other act or omission of Insured Lender, the
Servicer, the Loan Originator, the Mortgage Manager or Trust Manager or
any person.
21.5 The Insured Trustee (in its capacity as trustee of the Series Trust) is
not obliged to do or refrain from doing anything under the Agreement
(including incur any liability) unless the Insured Trustee's liability
is limited in the same manner as set out in this clause 21.
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For the avoidance of doubt, the Insured 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 21.
21.6 For the avoidance of doubt, nothing in this clause affects Our rights
under this Agreement, or under the Insurance Contracts Xxx 0000, to
avoid or reduce a claim which may be made by or on behalf of, the
Insured Trustee under the Agreement or to obtain a declaration or any
order to that effect.
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22. GOVERNING LAW
22.1 These Provisions and the Agreement are governed by and construed in
accordance with the laws of New South Wales.
JURISDICTION
22.2 Each party irrevocably and unconditionally:
22.2.1 submits to the non-exclusive jurisdiction of the courts of New
South Wales;
22.2.2 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
22.2.3 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 20.
23. PRIVACY LEGISLATION COMPLIANCE
In respect of each Insured Mortgage the Insured Lender:
o warrants that it has complied with the Privacy Act;
o acknowledges that if it gives personal information about a
borrower or guarantor to us in circumstances where that borrower
or guarantor has not given all necessary consents, we are at risk
of contravening the Privacy Act;
o will, on request by us, provide us with such information as we
reasonably require to verify compliance with your obligations
under the Privacy Act in relation to an Insured Mortgage;
o must disclose to us as soon as practicable if it becomes aware of
a breach of its obligations under the Privacy Act in respect of
an Insured Mortgage;
o agrees to indemnify us and keep us indemnified against any
injury, cost, loss, damage, claim or liability which we may
suffer, as a result of it failing to comply with this clause 23,
including but not limited to any injury, loss, cost, damage,
claim or liability arising out of an action brought by an
individual against us pursuant to, in connection with, or arising
from the Privacy Xxx 0000.
In the section "Privacy Act" means the Privacy Xxx 0000, as amended by the
Privacy Amendment (Private Xxxxxx) Xxx 0000 (including but not limited to a
National Privacy Principle set out in that Act).
The indemnity in this clause 23 is a continuing obligation, separate and
independent from the other obligations of the parties, and survives termination,
completion or expiration of this Agreement.
It is not necessary for a party to incur expense or to make any payment before
enforcing the right of indemnity conferred by this Agreement.
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24. MEANING OF WORDS
APPLICATION
means all information (in whatever form including but not limited tohard copy,
electronic or on disk) supplied to Us (by whatever means including, but not
limited to electronic mail) by You or by any third party on your behalf relating
to the Insured Mortgage, the Borrower, the Mortgaged Property any other
information in support of Your request for us to insure the Insured Mortgage.
BORROWER
means the person or entity specified as the Borrower in the Schedule of
Mortgages.
BREAK FUNDING COSTS
means costs or Losses incurred by You as a result of the Insured Mortgage being
discharged or the Loan Account being repaid or both, prior to the expiry of the
loan term provided You are entitled to recover such costs or Losses from the
Borrower.
CLOSING DATE
means the Closing Date specified in the Schedule of Variables
COLLATERAL SECURITY
means any security interest, other than the Insured Mortgage, You obtain as
security for, or guaranteeing, the payment of the Loan Account.
CONSUMER CREDIT CODE
means the Consumer Credit Code set out in the Appendix to the Consumer Credit
(Queensland) Xxx 0000 as in force and applicable for the time being in each
State and Territory of Australia.
CONTAMINANT
means any substance the presence of which on a property renders the property in
whole or in part harmful or unusable or both, including, but not limited to
radioactive material, asbestos, biological agents, heavy metals and toxins.
CONTAMINATION
means the presence in, on or under a property of any Contaminant at a
concentration above that naturally present in, on or under the property.
COST OVERRUNS
may occur if the purpose of the Insured Mortgage or any part of the Insured
Mortgage is for Improvements to the Mortgaged Property. Cost Overruns means the
cost of Improvements (including Improvements the subject of variations to the
fixed price building contract) in excess of the amounts approved in the original
Loan Amount and identified in the fixed priced building contract.
CREDIT TRIBUNAL OR COURT
means a credit tribunal or court having jurisdiction under the Consumer Credit
Code.
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EARLY REPAYMENT FEES
means any fines, fees or charges You are entitled to recover from the Borrower
as a result of the Insured Mortgage being discharged or the Loan Account being
repaid or both prior to the expiry of the Loan Term.
ELIGIBILITY CRITERIA
means the Eligibility Criteria specified in the Schedule of Variables.
EXPIRY DATE OF INSURANCE
means the Loan Expiry Date of a loan in respect of an Insured Mortgage specified
in the Schedule of Mortgages, plus thirty (30) days.
FINAL LOAN ADVANCE
means the last progress payment of the Loan Amount upon completion of any
Improvement to the Mortgaged Property.
GUARANTOR
means any person who has guaranteed performance of any of the Borrower's
obligations under the Insured Mortgage or Loan Account or both or provided
indemnity in respect of breach of those obligations.
GST
means the goods and services tax as imposed by the GST Act.
GST ACT
means A New Tax System (Goods and Services Tax) Xxx 0000, or, if that Act does
not exist for any reason, means any Act imposing or relating to the imposition
or administration of a goods and services tax in Australia and any regulation
made under that Act.
IMPROVEMENTS
means any construction, additions, renovations and repairs on or to the
Mortgaged Property.
INCLUDING OR SUCH AS
when introducing an example does not limit the meaning of the words to which the
example relates to that example or examples of a similar kind.
INPUT TAX CREDIT
has the same meaning given to that term by A New Tax System (Goods and Services
Tax) Xxx 0000.
INITIAL LOAN ADVANCE
means the first advance of the Loan Amount or part of the Loan Amount and
includes the only advance if the entire Loan Amount is advanced at one time.
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INSURED LENDER
means the person or entity specified as the Insured Lender in the Schedule of
Variables.
INSURED TRUSTEE
means the person or entity specified as the Insured Trustee in the Schedule of
Variables or if that person or entity retires or it's removed as trustee of the
Series Trust, then any substitute trustee and includes the Trust Manager when
acting as trustee of the Series Trust.
ISSUE DATE
means the date of payment by the Insured Lender of the once-only fee in
accordance with clause 6.
INSURED MORTGAGE
means each of the mortgages specified in the Schedule of Mortgages.
LOAN ACCOUNT
means the total of the Loan Amount and interest on the Loan Amount outstanding
under the Insured Mortgage.
LOAN AMOUNT
means the Loan Amount specified for the Insured Mortgage in the Schedule of
Mortgages.
LOAN ORIGINATOR
means any person who, whether acting as the agent of the Insured Lender or of
the Borrower or acting independently is involved in the marketing or
establishment of the Insured Mortgage and may include an agent, a mortgage
broker, a Mortgage Manager and a Trust Manager.
LOAN TERM
means the Loan Term specified for the Insured Mortgage in the Schedule of
Mortgages.
LOSS
means Loss calculated in accordance with these Provisions.
MINIMUM SCHEDULED INSTALMENTS
means the instalments required to meet the Loan Agreement repayments over the
term of the Loan.
MORTGAGE MANAGER
means a person appointed to administer and manage the Insured Mortgage and Loan
Account on Your behalf.
MORTGAGED PROPERTY
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means the Mortgaged Property specified for the Insured Mortgage in the Schedule
of Mortgages.
PERCENTAGE OF INSURANCE
means the Percentage of Insurance specified in the Schedule of Variables.
PERMITTED PRIOR SECURITY INTERESTS
in relation to an Insured Mortgage means any statutory charges, prior charges of
a body corporate, service company or equivalent, whether registered or
otherwise, which do not prevent the Insured Mortgage from being a first ranking
mortgage or a second ranking mortgage (as the case may be) in accordance with
the Insured Lender's lending criteria.
PROVISIONS
means these Lenders Mortgage Insurance Provisions Securitised Tranches.
SCHEDULE OF MORTGAGES
means the Schedule of Mortgages in the CD Rom in Exhibit A to these Provisions
which includes details of the Insured Mortgage, the Mortgaged Property, the
Borrower, the Loan Amount, the Loan Term and the Loan Expiry Date of the
Insurance of the Insured Mortgage.
SCHEDULE OF VARIABLES
means the Schedule of Variables attached to these Provisions which includes
details of the Insured Lender, the Insured Trustee, the Closing Date, the
Eligibility Criteria, the Servicer, the Series Trust, and the Percentage of
Insurance.
SCHEDULED INSTALMENTS
means the total amount due from time to time under the Insured Mortgage or Loan
Account or both whether paid or unpaid.
SCHEDULED LOAN BALANCE
means the amount that from time to time would have been outstanding if the
Minimum Scheduled Instalments had been paid when due.
SCHEDULED MONTHLY INSTALMENT
means the total amount payable each month (from time to time) by the Borrower to
You excluding any interest charged in advance, higher rate interest payable for
late payment and default rate interest.
SERIES SUPPLEMENT
means the Series Supplement dated 3 March 2006 between the Insured Lender, the
Insured Trustee and Securitisation Advisory Services Pty Limited ABN 88 064 133
946.
SERIES TRUST
means the Series Trust specified in the Schedule of Variables.
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SERVICER
means the Servicer specified in the Schedule of Variables.
SETTLEMENT DATE
means the day the sale of the Mortgaged Property is completed.
SECURITY INTEREST
means any mortgage, charge, lien, pledge, trust, power or other rights given as
or in effect as security for the payment of money or performance of obligations.
Security Interest also includes a guarantee and an indemnity.
TRUST MANAGER
means a person appointed to manage a trust pursuant to which You are the
mortgagee of the Insured Mortgage.
VALUER
means a person who is a member of the Australian Property Institute in the real
property valuation category.
VALUATION
means a written report as to value from a person who is at the time of provision
of the report a Valuer.
YOU MEANS:
(a) in relation to any Insured Mortgage that has been legally or equitably
assigned to the Insured Trustee and has not been reassigned to the
Insured Lender, the Insured Trustee; and in relation to any other
Insured Mortgage, the Insured Lender; and
(b) includes any Mortgage Manager or Trust Manager from time to time except
where inconsistent with the context.
WE OR US
means PMI Mortgage Insurance Ltd., ABN 70 000 000 000, and its successors and
assigns.
The singular includes the plural and vice versa.
A reference to anything includes the whole and each part of it.
Unless defined to the contrary in the Agreement, terms in the Agreement which
are defined in the Series Supplement (including terms defined by incorporation
by reference to other documents) have the same meaning in the Agreement.
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25. SCHEDULE OF VARIABLES
INSURED LENDER:
Commonwealth Bank of Australia
ABN 48 123 123 124
and
Homepath Pty Limited
ABN 35 081 986 530
Xxxxx 0, 00 Xxxxxx Xxxxx
Xxxxxx XXX 0000
INSURED TRUSTEE:
Perpetual Trustee Company Limited as trustee
of the Medallion Trust Series 2006-1G
ABN 42 000 001 007
Xxxxx 00, 000 Xxxx Xxxxxx
Xxxxxx XXX 0000
Fax: 00 0000 0000
CLOSING DATE:
14 March 2006
SERVICER:
Commonwealth Bank of Australia
ABN 48 123 123 124
SERIES TRUST:
Medallion Trust Series 2006-1G
PERCENTAGE OF INSURANCE:
100%
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SIGNED as an agreement this day of
THE COMMON SEAL OF PMI MORTGAGE )
INSURANCE LTD )
was hereunto affixed in the presence of: )
--------------------------------------------- ------------------------------
Director Director/Secretary
Signed, Sealed and Delivered on behalf of )
COMMONWEALTH BANK OF AUSTRALIA by its )
attorney in the presence of: )
)
--------------------------------------------- ------------------------------
Signature of Attorney Witness
---------------------------------------------
Print Name
Signed, Sealed and Delivered on behalf of )
HOMEPATH PTY LIMITED by its attorney in the )
presence of: )
--------------------------------------------- ------------------------------
Signature of Attorney Witness
---------------------------------------------
Print Name
SIGNED SEALED AND DELIVERED on behalf of )
PERPETUAL TRUSTEE COMPANY LIMITED AS TRUSTEE )
OF THE MEDALLION TRUST SERIES 2006-1G by its )
attorney in the presence of: )
--------------------------------------------- ------------------------------
Signature of Attorney Witness
---------------------------------------------
Print Name
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SCHEDULE 1 - ELIGIBILITY CRITERIA
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Eligibility Criteria in relation to each Insured Mortgage means that the Insured
Mortgage must:
o be in relation to a loan which has a Loan to Value Ratio (based
on the outstanding balance of the housing loan and the most
recent valuation of the mortgaged property, at the commencement
of business on the Cut-Off Date) less than or equal to 95%;
o be in relation to a loan where the Borrower is required to repay
that loan within 30 years of the Cut-Off Date;
o be in relation to a loan where the amount outstanding, assuming
all due payments have been made by the Borrower, does not exceed
A$1,000,000;
o be in relation to a loan which is sourced from the general
mortgage loan portfolio of Commonwealth Bank of Australia or
Homepath Pty Limited;
o be in relation to a loan where the Borrower is not an employee of
either Insured Lender who is paying a concessional rate of
interest under the Insured Mortgage as a result of such
employment;
o be in relation to a loan which was advanced in, and is repayable
in, Australian dollars;
o be in relation to a loan where no payment from the Borrower under
the Loan Account is in arrears by more than thirty (30)
consecutive days;
o be over Land which has erected on or within it a residential
dwelling or unit; and
o be in relation to a loan which is or has been fully drawn.
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