CONFORMED COPY
EXHIBIT 10.1
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WESTPAC BANKING CORPORATION
(Westpac)
THE MORTGAGE COMPANY PTY LIMITED
(Servicer)
WESTPAC SECURITIES ADMINISTRATION LIMITED
(Trustee)
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WESTPAC SECURITISATION TRUSTS
SERVICING AGREEMENT
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(C) Xxxxx Xxxxx & Xxxxxxx
Xxxxxx
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T A B L E O F C O N T E N T S
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1. DEFINITIONS AND INTERPRETATION ............................. 1
1.1 Definitions ....................................... 1
1.2 Interpretation .................................... 3
1.3 Limitation of Trustee's Liability ................. 3
1.4 Series Notice ..................................... 4
2. APPOINTMENT OF SERVICER .................................... 4
2.1 Appointment ....................................... 4
2.2 General duties and standard of care ............... 4
2.3 Powers ............................................ 4
2.4 Records ........................................... 5
2.5 Servicer's power to delegate ...................... 5
2.6 Servicer's power to appoint advisers .............. 6
2.7 Legal title ....................................... 6
2.8 License to enter Premises ......................... 6
3. DUTIES AND RESPONSIBILITIES OF THE SERVICER AS CUSTODIAN ... 6
3.1 General ........................................... 6
3.2 Locate and Access ................................. 7
3.3 Audit ............................................. 7
3.4 Transfer of Custody ............................... 8
4. UNDERTAKINGS ............................................... 8
4.1 Servicing Undertakings ............................ 8
4.2 Westpac Undertakings ..............................11
4.3 Westpac's power to delegate .......................12
4.4 Adverse Effect ....................................13
5. PROCEDURES MANUAL ..........................................13
5.1 Trustee bound by acts of Servicer .................13
5.2 No liability for compliance .......................13
5.3 Amendments to Procedures Manual ...................13
6. COLLECTION AND REMITTANCE OF MONEYS ........................14
6.1 Collection of moneys ..............................14
6.2 Remittances .......................................14
6.3 Remittances to Trustee ............................15
6.4 Payments and Computations, etc. ...................15
6.5 Report by Servicer ................................15
6.6 No Right of Set-Off ...............................15
7. SERVICER FEES ..............................................15
7.1 Fee .............................................. 15
7.2 Expenses of Servicer and Westpac 16
8. TERMINATION............................................... 16
Page (ii)
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8.1 Expiry of Term................................... 16
8.2 Servicer Transfer Event.......................... 16
8.3 Resignation...................................... 17
8.4 Survival......................................... 17
8.5 Release of outgoing Servicer..................... 17
8.6 New Servicer to execute deed..................... 17
8.7 Settlement and discharge......................... 17
9. INDEMNITY................................................. 17
9.1 Indemnity........................................ 17
9.2 Limitation of liability.......................... 18
9.3 No liability for acts of certain persons......... 18
9.4 No liability for loss etc........................ 18
9.5 Method of claiming under indemnity............... 18
9.6 Time of Payment.................................. 19
10. REPRESENTATIONS AND WARRANTIES............................ 19
10.1 Representations and Warranties................... 19
10.2 Reliance......................................... 19
10.3 Survival of Representations and Indemnities...... 19
11. WESTPAC AND THE SERVICER MAY ACT AS BANKER................ 19
12. ADMINISTRATIVE PROVISIONS................................. 20
12.1 Notices.......................................... 20
12.2 Governing Law and Jurisdiction................... 20
12.3 Assignment....................................... 20
12.4 Amendment........................................ 20
12.5 Severability Clause.............................. 20
12.6 Costs and Expenses............................... 20
12.7 Waivers: Remedies Cumulative.................... 21
CONFORMED COPY
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SERVICING AGREEMENT
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AGREEMENT dated 18 February 1997 between
1. WESTPAC BANKING CORPORATION (ARBN 007 457 141) incorporated in New
South Wales of 00 Xxxxxx Xxxxx, Xxxxxx in its capacity as an Approved
Seller (Westpac);
2. THE MORTGAGE COMPANY PTY LIMITED (ACN 070 968 302) incorporated in the
Australian Capital Territory of Xxxxx 0, 000 Xxxx Xxxxxx, Xxxxxx (the
Servicer); and
3. WESTPAC SECURITIES ADMINISTRATION LIMITED (ACN 000 049 472)
incorporated in New South Wales of Xxxxx 0, 00 Xxxx Xxxxxx, Xxxxxx (the
Trustee).
RECITALS
A. The Trustee wants to retain the services of the Servicer to manage the
Receivables in relation to certain Trusts and provide custodial
services in relation to the Relevant Documents.
B. The Trustee wants Westpac to undertake various matters in relation to
the Receivables and Receivable Rights that it sells to the Trustee for
so long as Westpac holds legal title to those Receivables and
Receivable Rights.
IT IS AGREED as follows
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement, terms defined in the Master Trust Deed or a Series
Notice in relation to a Relevant Trust have the same meaning and the
following definitions apply unless a different meaning is given in a
Series Note in relation to a Relevant Trust or the context otherwise
requires.
Audit Date means a date not later than the first anniversary of the
date of this Agreement and every 12 months after that date during the
Term.
Custody Transfer Trigger means a Further Audit resulting in an adverse
report.
Eligible Servicer means any suitably qualified person whose appointment
by the Trustee as Servicer under this Agreement will not materially
prejudice the interests of the Noteholders.
Further Audit has the meaning given in Clause 3.3(c).
Law means any statute, rule, regulation, ordinance, order or decree of
any Governmental Agency, and includes, without limitation the Consumer
Credit Code and the Code of Banking Practice.
Master Trust Deed means the Master Trust Deed between the Trustee and
the Servicer (in its capacity as Trust Manager) dated on or about the
date of this Agreement.
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Material Default means, with respect to a Receivable:
(a) a failure by an Obligor to pay any amount pursuant to the
relevant Receivable which failure causes the Receivable to be
in Arrears and which failure to pay continues for a period of
90 days; or
(b) the occurrence of an event of default, howsoever described
(other than a failure by an Obligor to pay an amount under the
relevant Receivable) under that Receivable or Receivable
Security unless the Servicer reasonably determines that such
event of default is of a minor or technical nature and will
not result in an Adverse Effect.
Premises means the Mortgage Processing Centre at 00 Xxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxx Xxxxxxxxx or such other premises as the Servicer
proposes, and the Trustee agrees to in writing (such agreement not to
be unreasonably withheld where the proposed premises are to be used as
a document vault, and those premises have security to a standard at
least equal to the Mortgage Processing Centre).
Procedures Manual means, in relation to a Portfolio of Receivables,
those policies and procedures of Westpac or the Servicer (as the case
may be) relating to the origination, management and enforcement of
those Receivables, Receivable Securities and Related Securities as
those policies and procedures are amended in accordance with this
Agreement, and applied from time to time in Westpac's or the Servicer's
ordinary course of business (as the case may be).
Receivable has the meaning in the Master Trust Deed, but relates only
to Receivables held by the Trustee under a Relevant Trust.
Receivable Securities has the meaning in the Master Trust Deed, but
relates only to Receivable Securities held by the Trustee under a
Relevant Trust.
Receivables Register means a register of Receivables for each Trust and
Warehouse Trust maintained by the Servicer and stored on computer disk
or other electronic form. In relation to Mortgages it shall contain the
information in respect of each Mortgage set out in Schedule 1.
Record of Movements has the meaning given in Clause 3.1(c).
Relevant Trust means a Trust in relation to which the Servicer has been
appointed, and has agreed to act, as Servicer under Clause 2.1(a) and a
Series Notice.
Security Packet means, in relation to a Receivable, each packet of
Relevant Documents relating to that Receivable.
Security Packet Audit means, at any time, an inventory of Security
Packets conducted by the Servicer to verify location of the Security
Packets.
Security Vault means any security document vault located on the
Premises in which any Security Packets or Relevant Documents are
stored.
Services means the services provided or to be provided by the Servicer
under this Agreement.
Servicer Transfer Event means the occurrence of any of the following:
(a) an Insolvency Event occurs with respect to the Servicer;
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(b) the Servicer fails to pay any amount in accordance with any
Transaction Document within 10 Business Days of receipt of a
notice to do so from either the Trustee or Trust Manager;
(c) the Servicer fails to comply with any of its other obligations
under any Transaction Document and such action has had, or, if
continued will have, an Adverse Effect (as determined by the
Trustee) and the Servicer does not remedy that failure within
30 days after the Servicer becomes aware of that failure by
receipt of a notice from either the Trustee or the Trust
Manager;
(d) any representation, warranty or certification made by the
Servicer is incorrect when made and is not waived by the
Trustee or remedied to the Trustee's reasonable satisfaction
within 90 days after notice from the Trustee, and the Trustee
determines that breach would have an Adverse Effect; or
(e) if it is unlawful for the Servicer to perform the Services.
Term means the period from the date of this Agreement until the earlier
of:
(a) the date on which this Agreement is terminated pursuant to
Clause 8.2;
(b) the date which is one month after the Notes in relation to
each Relevant Trust have been redeemed in full in accordance
with the Transaction Documents and the Trustee ceases to have
any obligations to any Creditor in relation to any Trust;
(c) the date on which the Trustee replaces the Servicer with an
Eligible Servicer; and
(d) the date on which the Servicer is replaced after resigning
under Clause 8.3.
1.2 Interpretation
The provisions of clause 1.2 of the Master Trust Deed apply to this
Agreement, as if set out in full, and on the basis that a reference in
Clause 1.2(e) or (f) to "this Deed" is a reference to this Agreement.
1.3 Limitation of Trustee's Liability
(a) The Trustee enters into this Agreement only in its capacity
as trustee of each Relevant Trust and in no other capacity. A
liability arising under or in connection with this Agreement
can be enforced against the Trustee only to the extent to
which it can be satisfied out of property of the Relevant
Trust out of which the Trustee is actually indemnified for
the liability. This limitation of the Trustee's liability
applies despite any other provision of this Agreement (other
than Clause 1.3(c)) and extends to all liabilities and
obligations of the Trustee in any way connected with any
representation, warranty, conduct, omission, agreement or
transaction related to this Agreement.
(b) The parties other than the Trustee may not xxx the Trustee
personally or seek the appointment of a liquidator,
administrator, receiver or similar person to the Trustee or
prove in any liquidation, administration or arrangement of or
affecting the Trustee.
(c) The provisions of this Clause 1.3 shall not apply to any
obligation or liability of the Trustee to the extent that
obligation or liability is not satisfied because:
(i) under the trust deed establishing the Trust; or
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(ii) by operation of law,
there is a reduction in the extent, or extinguishment, of the
Trustee's indemnification out of the assets of the Relevant
Trust, as a result of the Trustee's fraud, negligence or
breach of trust.
(d) It is acknowledged that the Trust Manager of the Relevant
Trust is responsible under the Master Trust Deed for a variety
of obligations relating to the Trust, including under this
Agreement. No act or omission of the Trustee (including any
related failure to satisfy its obligations under this
agreement) will be considered fraud, negligence or breach of
trust of the Trustee for the purpose of Clause 1.3(c) to the
extent to which the act or omission was caused or contributed
to by any failure by the Trust Manager or the Servicer or any
other person properly appointed by the Trustee, the Trust
Manager or the Servicer to fulfil its obligations relating to
the Relevant Trust or by any other act or omission of the any
other person properly appointed by the Trustee, the Trust
Manager or the Servicer.
(e) No attorney, agent, receiver or receiver and manager appointed
in accordance with this Agreement has authority to act on
behalf of the Trustee in a way which exposes the Trustee to
any personal liability and no act or omission of any such
person will be considered fraud, negligence or breach of trust
of the Trustee for the purpose of Clause 1.3(c).
1.4 Series Notice
This Agreement is subject to the Series Notice for each Relevant Trust.
In case of any inconsistency, the Series Notice shall prevail.
2. APPOINTMENT OF SERVICER
2.1 Appointment
The Trustee appoints the Servicer to perform the Services during the
Term for each Trust in relation to which the Servicer is specified as,
and agrees to act as, the Servicer in the relevant Series Notice. By
executing a Series Notice, the Servicer shall be taken to have accepted
that appointment, and agreed to perform the Services in relation to
that Trust in accordance with this Agreement.
2.2 General duties and standard of care
The Servicer shall manage and service the Receivables:
(a) in accordance with this Agreement;
(b) to the extent not provided in this Agreement, in accordance
with the applicable Procedures Manual as that is interpreted
and applied by the Servicer in the ordinary course of its
business; and
(c) to the extent not covered by Clauses 2.2(a) and (b), by
exercising the degree of diligence and care expected of an
appropriately qualified Servicer of the relevant financial
products and custodian of documents.
2.3 Powers
Subject to Clauses 2.2, 4.1(g) and 4.4, the Servicer has the express
power, among other things, to the extent such action will not cause an
Adverse Effect (that is, an event which xxxx
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materially and adversely affect the amount of any payment to be made to
any Noteholder, or will materially and adversely affect the timing of
such payment):
(a) to waive any fees and break costs which may be collected in
the ordinary course of servicing the Receivables or arrange
the rescheduling of interest due and unpaid following a
default under any Receivables;
(b) in its discretion, to waive any right in respect of any
Receivables and Receivable Securities in the ordinary course
of servicing the Receivables and Receivable Securities
(including in accordance with its normal collection
procedures); and
(c) to grant an extension of maturity beyond 30 years from the
date any Receivable that relates to a mortgage loan was made,
when required to do so by Law or a Government Agency. The
restriction on granting extensions that will not have an
Adverse Effect shall not apply where the extension is required
by Law or a Governmental Agency.
2.4 Records
(a) The Servicer will maintain the Data Base used by it as a
master record of Receivables and Receivable Securities in
relation to each Relevant Trust.
(b) Each Receivable will be electronically tagged so that all
related Collections and performance statistics (the nature of
which shall be as mutually agreed from time to time by the
Servicer, the Trust Manager and the Trustee) for that
Receivable can be readily identified.
2.5 Servicer's power to delegate
Without in any way affecting the generality of the above, the Servicer
may in carrying out and performing its duties and obligations contained
in this Agreement:
(a) (delegate to employees agent) delegate to any of its officers
and employees all Services (whether or not requiring or
involving the Servicer's judgment or discretion);
(b) (appoint attorneys or subcontract) appoint any person to be
its attorney or agent or delegate to or subcontract with any
person for such purposes and with such powers, authorities and
discretions (not exceeding those vested in the Servicer) as
the Servicer thinks fit with:
(i) power for the attorney or agent to sub-delegate any
such powers, authorities or discretions;
(ii) power to authorise the issue in the name of the
Servicer of documents bearing facsimile signatures of
the Servicer or of the attorney, agent or delegate
(either with or without proper manuscript signatures
of their officers); and
(iii) provisions for the protection and convenience of
those dealing with any such attorney, agent or
delegate as they may think fit; and
(c) (suspend agents and sub-agents) supersede or suspend any such
attorney, agent or delegate for such cause or reason as the
Servicer may in its sole discretion think sufficient with or
without assigning any cause or reason and either absolutely or
for such time as it may think proper,
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but despite any delegation or appointment under the above paragraphs of
this Clause, the Servicer shall remain liable for the performance of
the Services in accordance with this Agreement and for the acts or omis
sions of any officer, employee, attorney, agent, delegate, sub-delegate
or sub-agent and shall be solely responsible for the fees and expenses
of such officer, employee, attorney, agent, delegate, sub-delegate or
sub-agent.
2.6 Servicer's power to appoint advisers
In accordance with its ordinary course of business, the Servicer may
appoint and engage and act upon the opinion, advice or information
obtained from any valuers, solicitors, barristers, accountants,
surveyors, property managers, real estate agents, contractors,
qualified advisers and such other persons as may be necessary, usual or
desirable for the purpose of enabling the Servicer properly to exercise
and perform its duties and obligations under this Agreement.
2.7 Legal title
The Servicer agrees that upon being directed to do so by the Trustee
following a Title Perfection Event for a Relevant Trust, it will
promptly take all action to perfect the Trustee's legal title to the
relevant Receivables and Receivable Securities by:
(a) giving written notice of the Trustee's interest to any Obligor
or Mortgagor;
(b) registering any Transfer of Receivable Security;
(c) taking any other action required or permitted by law to
perfect such legal title; and
(d) delivering all Relevant Documents for that Trust to the
Trustee. If the Servicer has not done so within 10 Business
Days (or such longer period as the Trustee permits) the
Trustee may enter any premises where those Relevant Documents
are kept, take possession of and remove those Relevant
Documents. The Servicer shall assist the Trustee in doing so.
2.8 License to enter Premises
Westpac irrevocably licenses the Trustee to enter onto the Premises for
the purpose of taking possession of, and removing, the Relevant
Documents in accordance with this Agreement.
3. DUTIES AND RESPONSIBILITIES OF THE SERVICER AS CUSTODIAN
3.1 General
The Servicer's duties and responsibilities (in its capacity as
custodian under this Agreement) are to:
(a) hold as custodian under this Agreement at the direction of the
Trustee each Relevant Document that it may receive on behalf
of the Trustee (or its agent or nominee) pursuant to a
Transaction Document in accordance with its standard
safekeeping practises and in the same manner and to the same
extent as it holds similar documents for Westpac;
(b) ensure that each Relevant Document is capable of
identification and is kept in a Security Packet which is kept
together with other Security Packets relating to the
Receivables of that Trust in a security vault, and separate
from other documents held by the Servicer for another Trust or
otherwise;
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(c) in relation to each Relevant Trust, open and maintain in safe
custody a record of physical movement from the Premises and
between each Relevant Trust of any Relevant Document held by
it from time to time pursuant to this Agreement (the Record of
Movements);
(d) update the Receivables Register and give a copy to the
Trustee:
(i) within 3 months of the Closing Date for each Relevant
Trust;
(ii) if its holding company has a short term rating from
the Designated Rating Agency of not less than A-, not
later than the last Business Day of each calendar
year during the Term;
(iii) if its holding company does not have such a rating,
on the last Business Day of each calendar quarter
during the Term; and
(iv) within 30 days of a written request by the Trustee if
the Trustee (in its discretion, but acting
reasonably) believes that the Servicer or Westpac is
breaching its obligations under this Agreement or any
other Relevant Document; and
(e) at all times during the currency of this Agreement do all
acts, matters and things which may reasonably be required of
the Servicer by the Trustee for the purposes of, or as
contemplated by this Agreement.
3.2 Locate and Access
(a) The Servicer shall ensure that at all times it shall be able
to locate each Security Packet by way of a periodic Security
Packet Audit.
(b) Unless the Servicer requires a Relevant Document to perform
its duties as Servicer in relation to the related Receivable,
or otherwise comply with its obligations under the Transaction
Documents, each Relevant Document shall be kept within the
Security Vault.
(c) Other than the Servicer requiring a Relevant Document under
Clause 3.2(b), or for an audit by Westpac's or the Servicer's
internal or external auditor, or by the Auditor under Clause
3.3 of this Agreement, a Relevant Document may only be removed
from the Security Vault with the Trustee's written approval
and for the following purposes:
(i) inspection by the Trustee; or
(ii) such other purpose approved in writing by the
Trustee.
3.3 Audit
(a) The Trust Manager or the Trustee (in default of action by the
Trust Manager) shall on each Audit Date request an independent
auditor to conduct an audit of the Servicer's custodial role
with respect to the Relevant Documents for any Relevant Trust
by considering the matters set out in Schedule 2.
(b) The terms of the instruction of that auditor must require
delivery, within one month of an Audit Date, of a certificate
addressed to the Trustee, the Servicer and the Designated
Rating Agency stating whether or not the Servicer has complied
with the matters set out in Schedule 2.
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(c) Where a certificate referred to in Clause 3.3(b) (the Audit
Certificate) gives an "Adverse" finding (as set out in
Schedule 2), the Trustee must direct that auditor to conduct a
further audit (the Further Audit) on a similar basis to the
audit to which the Audit Certificate related. The Further
Audit shall be conducted no later than one month after the
date of the Audit Certificate. That auditor shall then issue a
new certificate with respect to the Further Audit in the form
required by Clause 3.3(b) no later than one month after the
date on which the Further Audit commenced.
(d) Subject to any bona fide confidentiality restrictions, the
Servicer shall give each auditor full access to all relevant
information and the Relevant Documents for the purpose of
conducting each audit under Clause 3.3.
(e) The Trustee shall pay the reasonable fees and expenses of the
auditor with respect to any audit under this Clause 3.3.
(f) The auditor instructed under this Clause must be instructed to
give written reasons supporting any "Adverse" finding.
(g) The Servicer shall take all reasonable steps to cure any non
compliance identified by an audit.
3.4 Transfer of Custody
If:
(a) a Servicer Transfer Event occurs and is subsisting; or
(b) a Custody Transfer Trigger occurs,
the Servicer must deliver the Relevant Documents to the Trustee, or as
it directs. If the Servicer has not done so within 10 Business Days (or
such longer period as the Trustee permits) the Trustee must enter any
premises where the Relevant Documents are kept, take possession of and
remove the Relevant Documents. The Servicer shall assist in doing so.
If the Trustee does not have possession of the Relevant Documents
within that period it may, to the extent that it has information
available to it to do so, lodge caveats in relation to and/or take all
other action it considers necessary to protect its interests in, the
Receivables and Receivable Securities for which it does not hold the
Relevant Documents.
4. UNDERTAKINGS
4.1 Servicing Undertakings
The Servicer undertakes that at all times during the Term it will:
(a) (notice of default) give notice in writing to the Trustee and
the Designated Rating Agency of it becoming aware of the
occurrence of any Servicer Transfer Event;
(b) (compliance with law)
(i) maintain in effect all qualifications, consents,
licenses, permits, approvals, exemptions, filings and
registrations as may be required under any applicable
law in order properly to service the Receivables and
Receivable Securities and to perform or comply with
its obligations under this Agreement; and
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(ii) comply with all Laws in connection with servicing the
Receivables and Receivable Securities where failure
to do so would have an Adverse Effect;
(c) (Collections)
(i) in relation to Receivables of which Westpac is the
legal owner, on request from Westpac, assist Westpac
to collect all moneys due under those Receivables and
the Receivable Securities; and
(ii) in relation to Receivables of which the Trustee is
the legal owner, collect all moneys due under those
Receivables and Receivables Securities,
in accordance with the standards specified in Clause 2.2, and
pay them into the relevant Collections Account not later than
the time that Westpac would be required to do so under Clause
6.
(d) (Material Default) if a Material Default occurs in respect to
a Receivable, take such action in accordance with the
Servicer's normal enforcement procedures to enforce the
relevant Receivable and the Receivable Security to the extent
that the Servicer determines that enforcement procedures
should be taken;
(e) (Insurance Policies)
(i) act in accordance with the terms of any Mortgage
Insurance Policies;
(ii) not do or omit to do anything which could be
reasonably expected to prejudicially affect or limit
its rights or the rights of the Trustee under or in
respect of a Mortgage Insurance Policy to the extent
those rights relate to a Receivable and the
Receivable Security;
(iii) promptly make a claim under any Mortgage Insurance
Policy when it is entitled to do so; and
(iv) promptly notify the Trust Manager when each such a
claim is made.
(f) (no Security Interests) not consent to the creation or
existence of any Security Interest in favour of a third party
in relation to any Mortgaged Property in connection with a
Receivable and the Receivable Security:
(i) without limiting paragraph (f)(ii), unless priority
arrangements are entered into with that third party
under which the third party acknowledges that the
Receivable and Receivable Security ranks ahead in
priority to the third party Security Interest on
enforcement for an amount not less than the Unpaid
Balance of the Receivable plus such other amount as
the Servicer determines in accordance with the
Procedures Manual or its ordinary course of business;
or
(ii) which would rank before or pari passu with the
relevant Receivable and Receivable Security;
(g) (release of debt or vary terms) not, except as required by
Law, release an Obligor from any amount owing in respect of a
Receivable or otherwise vary or discharge any Receivable or
Receivable Security or enter into any agreement or arrangement
which has the effect of altering the amount payable in respect
of a Receivable or Receivable Security where it would have an
Adverse Effect;
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(h) (binding provisions and orders of a competent authority)
release any Receivable or Receivable Security, reduce the
amount outstanding under or vary the terms of any Receivable
or grant other relief to an Obligor, if required to do so by
any Law or if ordered to do so by a court, tribunal,
authority, ombudsman or other entity whose decisions are
binding on the Servicer. If the order is due to the Servicer
breaching any applicable Law then the Servicer must indemnify
the Trustee for any loss the Trustee may suffer by reason of
the order. The amount of the loss is to be determined by
agreement with the Trustee or failing this, by the Servicer's
external auditors;
(i) (other miscellaneous things) attend to the stamping and
registration of all Relevant Documents for each Relevant
Trust (including documents which became Relevant Documents)
following any amendment, consolidation or other action, and
in the case of any registration of any Mortgage that
registration must result in the Mortgage having the ranking
referred to in the relevant eligibility criteria in the
Series Notice. In relation to any Mortgage that is not
registered at the relevant Closing Date, the Servicer shall
ensure that it is lodged for registration not later than
120 days after that Closing Date;
(j) (setting the Interest Rate)
(i) the Servicer shall set the interest rate on the
Receivables in accordance with the requirements of
the Series Notice; and
(ii) subject to the relevant Series Notice, if the Trustee
has perfected its title to the Receivables or
Receivable Securities and the Trustee is entitled to
vary the interest rate in accordance with the terms
of the Receivables, the Servicer shall, in accordance
with the terms of the Receivables, set and maintain
the interest rate on the relevant Receivables at or
above the relevant Threshold Rate as advised by the
Trust Manager in accordance with the Master Trust
Deed and the Series Terms and promptly notify the
relevant Obligors;
(k) (notification) notify:
(i) the Trustee and the Trust Manager of any event which
it reasonably believes is likely to have an Adverse
Effect promptly after becoming aware of such event;
and
(ii) the Trust Manager of anything else which the Trust
Manager reasonably requires regarding any proposed
modification to any Receivable or Receivable
Security.
(l) (provide information and access on request) provide
information reasonably requested by the Trustee or the Trust
Manager, with respect to all matters relating to each Relevant
Trust and the assets of the relevant Trust, and the Trustee or
the Trust Manager believes reasonably necessary for it to
perform its obligations under the relevant Transaction
Documents, and upon reasonable notice and at reasonable times
permit the Trustee to enter the Premises and inspect the Data
Base in relation to each Relevant Trust and the Relevant
Documents;
(m) (comply with other obligations) comply with all its
obligations under any Transaction Document to which it is a
party, where a failure to do so would result in an Adverse
Effect;
(n) (pay taxes) subject to receiving payment from, or being
reimbursed by, the relevant Obligor or being indemnified by
the Trustee, pay all Taxes that relate to the
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Services (other than any Tax on the income of a Trust) or
ensure those Taxes are paid or where such Taxes are incurred
due to the default or breach of duty by the Servicer;
(o) (not claim) not claim any Security Interest over any Asset;
(p) (availability of Data Base) make the Data Base that relates to
the Services available for inspection by the Trustee at any
reasonable time;
(q) (comply with Series Notice) comply with any undertaking
specified as an additional Servicer undertaking in a relevant
Series Notice, including, without limitation, providing the
Trust Manager with any information referred to in that Series
Notice;
(r) (insurances) ensure that the Premises are appropriately
insured for fire and public risks, and that it has appropriate
directors and officers insurance;
(s) (additional amounts) notify Westpac and the Trust Manager
immediately of each request by an Obligor to borrow further
moneys under or in relation to a Receivable or Receivable
Security which is a "top-up" and which the Servicer has
approved; and
(t) (comply with Trust Back) apply any moneys it receives in
relation to any Other Secured Liability in accordance with the
relevant Trust Back in accordance with the directions of the
Trustee.
4.2 Westpac Undertakings
Westpac undertakes that at all times during the Term, and for so long
as it is the legal owner of any Receivable or Receivable Security, it
will:
(a) (compliance with law)
(i) maintain in effect all qualifications, consents,
licences, permits, approvals, exemptions, filings and
registrations as may be required under any applicable
Law in relation to its ownership of any Receivable or
Receivable Security and to perform or comply with its
obligations under this Agreement; and
(ii) comply with all Laws in connection with its ownership
of any Receivables and Receivable Securities where
failure to do so would have an Adverse Effect;
(b) (co operate with the Servicer) co operate with the Servicer in
relation to the performance by the Servicer of the Services
including, without limitation, in relation to the enforcement
of any Receivable or Receivable Security;
(c) (comply with Series Notice) comply with any undertaking
specified in relation to it in a relevant Series Notice,
including, without limitation, providing the Trust Manager
with any information referred to in that Series Notice;
(d) (Material Default) if a Material Default occurs in respect to
a Receivable, take such action as the Servicer directs it to
take in accordance with this Agreement;
(e) (Insurance Policies) act in accordance with the terms of any
Mortgage Insurance Policies, and not do or omit to do anything
which could be reasonably expected to
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prejudicially affect or limit the rights of the Trustee under
or in respect of a Mortgage Insurance Policy to the extent
those rights relate to a Receivable and the Receivable
Security;
(f) (no Security Interests) not consent to the creation or
existence of any Security Interest in favour of a third party
in relation to any Mortgaged Property in connection with a
Receivable and the Receivable Security:
(i) without limiting paragraph (f)(ii), unless priority
arrangements are entered in to with that third party
under which the third party acknowledges that the
Receivable and Receivable Security ranks ahead in
priority to the third party Security Interest on
enforcement for an amount not less than the Unpaid
Balance of the Receivable plus such other amount as
the Servicer determines in accordance with the
Procedures Manual or its ordinary course of business;
or
(ii) which would rank before or pari passu with the
relevant Receivable and Receivable Security;
(g) (release of debt or vary terms) not, except as required by
Law, release an Obligor from any amount owing in respect of a
Receivable or otherwise vary or discharge any Receivable or
Receivable Security or enter into any agreement or arrangement
which has the effect of altering the amount payable in respect
of a Receivable or Receivable Security where it would have an
Adverse Effect;
(h) (binding provisions and orders of a competent authority)
release any Receivable or Receivable Security, reduce the
amount outstanding under or vary the terms of any Receivable
or grant other relief to an Obligor, if required to do so by
any Law or if ordered to do so by a court, tribunal,
authority, ombudsman or other entity whose decisions are
binding on Westpac. If the order is due to Westpac breaching
any applicable Law then Westpac must indemnify the Trustee for
any loss the Trustee may suffer by reason of the order. The
amount of the loss is to be determined by agreement with the
Trustee or failing this, by Westpac's external auditors;
(i) (not claim) not claim any Security Interest over any Asset;
and
(j) (additional amounts) notify the Servicer immediately of each
request by an Obligor to borrow further moneys under or in
relation to a Receivable or Receivable Security.
4.3 Westpac's power to delegate
(a) For so long as Westpac is the legal owner of any Receivables,
and Westpac is required by Law (including, without limitation,
the Consumer Credit Code) to do, or refrain from doing,
certain things in relation to those Receivables or the
Receivable Securities:
(i) Westpac appoints the Servicer to do those things on
its behalf, except as specified in the Procedures
Manual;
(ii) Westpac directs the Servicer to perform the Services
in a manner that is consistent with any obligation of
Westpac under any Law;
(iii) Westpac authorises the Servicer to conduct
correspondence with Obligors and other persons as if
it had been appointed to perform the Services by
Westpac as legal owner of those Receivables and
Receivable Securities,
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but this authorisation is subject to any restriction
imposed on the Servicer in any power of attorney or
the Procedures Manual; and
(iv) the Servicer accepts that appointment and direction
and agrees to perform the Services in accordance with
this Agreement.
(b) Despite any delegation under this Clause, Westpac shall remain
liable in relation to any obligation it delegates to the
Servicer, and for the acts, omissions, fees and expenses of
the Servicer as its delegate.
4.4 Adverse Effect
(a) In performing the Services the Servicer shall have regard to
whether what it does, or does not do, will have any Adverse
Effect.
(b) The Servicer may ask the Trustee or the Trust Manager if any
action or inaction on its part is reasonably likely to, or
will, have an Adverse Effect.
(c) The Servicer may rely upon any statement by the Trustee or the
Trust Manager that any action or inaction by the Servicer is
reasonably likely to, or will, have an Adverse Effect.
(d) Subject to paragraph (a), the Servicer shall not be liable for
a breach of this Agreement, or be liable under ^ any
indemnity, in relation to any action or inaction on its part,
where it has been notified by the Trustee or the Trust Manager
that the action or inaction is not reasonably likely to, or
will not have an Adverse Effect.
5. PROCEDURES MANUAL
5.1 Trustee bound by acts of Servicer
All acts of the Servicer in servicing the Receivables in accordance
with the relevant Procedures Manual are binding on the Trustee.
5.2 No liability for compliance
(a) The Servicer is not in breach of its duties under this
Agreement or otherwise liable to the Trustee if it complies
strictly with the relevant Procedures Manual unless:
(i) the relevant Procedures Manual does not materially
comply with any Law; or
(ii) the Servicer is not otherwise complying with
Clauses 2.2 and 4 in relation to the relevant
matter or duty.
(b) If the Servicer becomes aware that any Procedures Manual does
not materially comply with any Law, it shall notify the
Trustee within 10 Business Days and take all reasonable steps
to rectify that non-compliance.
5.3 Amendments to Procedures Manual
The Servicer shall not amend the relevant Procedures Manual in any way
that would reasonably be expected to result in an Adverse Effect,
unless it must do so to ensure compliance with Law. The Servicer shall
notify the Trustee, the Trust Manager and the Designated Rating Agency
of any material amendment to the relevant Procedures Manual.
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6. COLLECTION AND REMITTANCE OF MONEYS
6.1 Collection of moneys
(a) Westpac shall on behalf of the Trustee collect and receive the
Collections in respect of Receivables in relation to which
Westpac is the legal owner.
(b) In collecting and receiving the Collections for Receivables in
relation to which it is the legal owner, Westpac shall:
(i) act in accordance with the standards and practices
applied by Westpac to other assets which it owns in
the ordinary course of its business and in accordance
with the Procedures Manual; and
(ii) exercise the degree of diligence and care expected of
an appropriately qualified lender in relation to the
relevant financial products.
(c) Westpac may delegate to the Servicer the collection and
receipt of the Collections referred to in paragraph (a).
Westpac may revoke that delegation. Westpac shall remain
liable under paragraph (a) despite any delegation under this
paragraph (c). If Westpac delegates to the Servicer the
collection and receipt of any Collections, the Servicer must
not deposit any Collections in its own account, and shall
deposit them in the relevant Collections Account not later
than the time that Westpac would have been required to deposit
them under this Agreement.
(d) Following the perfection of title to any Receivable and
Receivable Rights, the Servicer shall assist the Trustee in
relation to the collection and receipt of Collections in
respect of those Receivables and Receivable Rights.
6.2 Remittances
(a) If Westpac has a short term rating of A-1+ from the Designated
Rating Agency, or otherwise satisfies the requirements of the
Designated Rating Agency so that any rating given by the
Designated Rating Agency in respect of the Notes will not be
adversely affected, Westpac must pay the Collections it
receives during a Collection Period on the Remittance Date for
that Collection Period into the relevant Collections Account.
(b) Subject to the terms of the relevant Series Notice, on that
Remittance Date, Westpac must pay into the relevant Collection
Account an amount equal to the aggregate of:
(i) the Collections received during the Collection Period
relating to that Remittance Date; and
(ii) an amount equal to the interest that would have been
earned on such Collections received by it if they had
been deposited into the relevant Collection Account
five Business Days following receipt by the Servicer,
less an amount equal to any Taxes payable in relation to those
Collections and any other amount Westpac may retain in
accordance with any relevant Series Notice.
(c) If Westpac does not have a short term rating of A1+ from the
Designated Rating Agency, or otherwise does not satisfy the
requirements of the Designated Rating Agency so that the
rating given by the Designated Rating Agency in respect of the
Notes will be adversely affected, then Westpac shall pay all
Collections in its possession or control into the relevant
Collection Account no later than five Business Days following
receipt.
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(d) If a Collection Account is not maintained with Westpac, or a
subsidiary of Westpac, all Collections in relation to the
relevant Trust must be deposited into that Collection Account
no later than two Business Days following receipt of them by
Westpac.
6.3 Remittances to Trustee
(a) (Transfer of funds to Trustee) Westpac shall pay to the
relevant Collection Account all funds required to be paid to
the Trustee in accordance with this Clause 6 by wire transfer
or as otherwise instructed by the Trustee in same day funds.
(b) (Payment dishonoured) If Westpac pays funds relating to any
payment in respect of Receivables and Receivable Securities to
the Trustee and the related Obligor's payment for the payment
is, or is returned, dishonoured, Westpac shall be entitled to
a return of the amount remitted to the Trustee for which
Westpac did not receive funds from the Obligor. Westpac may
withhold that amount from funds subsequently remitted to the
Trustee in relation to the Relevant Trust.
6.4 Payments and Computations, etc.
(a) Subject to the terms of any relevant Series Notice, Westpac
shall make all payments to the Trustee under a Transaction
Document:
(i) without set off or counterclaim and without
deduction, except in relation to any deductions that
may be made in accordance with this Clause; and
(ii) by paying or depositing it in accordance with the
terms of the relevant Transaction Document no later
than 4.00 pm on the day when due in same day funds.
(b) If any payment is due on a day which is not a Business Day,
the due date will be the next Business Day.
6.5 Report by Servicer
On or before each Determination Date for each Relevant Trust the
Servicer will prepare and submit to the Trust Manager a report on
Collections, and provide such other information as the Trust Manager
reasonably requires to prepare its report under Clause 18.15 of the
Master Trust Deed.
6.6 No Right of Set-Off
Notwithstanding any term of any other document, whether relating to the
establishment of a Collection Account or otherwise, if a Collection
Account is maintained with Westpac, Westpac agrees that it shall have
no right of set-off, banker's lien, right of combination of accounts,
right to deduct moneys or any other analogous right or security in or
against any funds held in the Collection Account for any amount owed to
Westpac.
7. SERVICER FEES
7.1 Fee
The Trustee shall in accordance with, and subject to the relevant
Series Notice pay to the Servicer a fee for providing its services
under this Agreement in relation to each Trust.
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7.2 Expenses of Servicer and Westpac
(a) The Trustee must reimburse the Servicer and Westpac for all
legal and selling expenses relating to the enforcement and
recovery of the Receivables, including legal expenses,
valuations, premiums on force -placed insurance policies where
the relevant Obligor has cancelled or let lapse an insurance
policy, rates and taxes, any amount repaid to a liquidator or
trustee in bankruptcy under any applicable law, binding code,
order or decision of a court, tribunal or the like or based on
the advice of the Servicer's legal advisers, and other
reasonable amounts which the Servicer or Westpac reasonably
spends or incurs in relation to the enforcement or sale,
provided that where the consent of an insurer under a Mortgage
Insurance Policy is required in order for an expense to be
reimbursable by that insurer, the Servicer or Westpac will
only be reimbursed where it has obtained that consent. This
right of reimbursement to Westpac is subject to the terms of
any relevant Trust Back under the Master Trust Deed.
(b) The Servicer will invoice the Trustee monthly on each
Determination Date in relation to each Relevant Trust for the
costs and expenses under paragraph (a), and shall provide
reasonable details and supporting documentation in relation to
amounts to be reimbursed.
(c) This reimbursement shall be in accordance with the relevant
Series Notice.
(d) The Trustee must, in accordance with the Master Trust Deed, on
the recommendation of the Trust Manager, reimburse the
Servicer for all costs and expenses incurred by the Servicer
in complying with Clause 2.7.
(e) Except as provided in this Clause, the Servicer shall be
responsible for all other costs and expenses of servicing the
Receivables.
(f) Westpac and the Servicer shall determine between themselves
who will incur the liabilities referred to in paragraph (a).
They will inform the Trustee and the Trust Manager on request
of the arrangements that they make.
8. TERMINATION
8.1 Expiry of Term
This Agreement shall continue until the expiry of the Term.
8.2 Servicer Transfer Event
(a) If a Servicer Transfer Event occurs, the Trustee at its option
in the manner and at the times the Trustee in its absolute
discretion deems appropriate but without any obligation to do
so and notwithstanding any omission, neglect, delay or waiver
of the right to exercise such option may by notice terminate
this Agreement with immediate effect.
(b) Following such action:
(i) Clause 3.4 shall apply; and
(ii) the Servicer must promptly transfer at its own cost
to the Trustee or as the Trustee directs the relevant
information in the Data Base held or maintained by
the Servicer in relation to this Agreement, the
Receivables or Receivable Securities.
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(c) The Trustee will not appoint any other person to perform all
or part of the obligations the Servicer has undertaken to
perform under this Agreement or to service any of the
Receivables unless:
(i) the Trustee has terminated this Agreement in
accordance with the provisions of paragraph (a); or
(ii) the Servicer has resigned in accordance with clause
8.3.
8.3 Resignation
The Servicer shall not resign without first giving 3 months' notice to
the Designated Rating Agency, the Trust Manager and the Trustee. If the
Trustee has not appointed an Eligible Servicer to be the Servicer, and
that Eligible Servicer has agreed to act as Servicer, by the expiration
of that notice period, the Trustee shall act as Servicer and is
entitled to the fee payable under Clause 7 while so acting.
8.4 Survival
The obligations of the Servicer under Clause 8 survive the termination
of this Agreement.
8.5 Release of outgoing Servicer
Except as provided in Clause 8.4, upon retirement or removal and
provided there has been payment to the Trustee of all sums due to it by
the outgoing Servicer under this deed at that date, the outgoing
Servicer shall be released from all further obligations under this deed
but no release under this clause shall extend to any existing or
antecedent fraud, negligence or wilful default on the part of the
outgoing Servicer or its officers, employees, agents or delegates.
8.6 New Servicer to execute deed
(a) A new Servicer shall execute a deed in such form as the
Trustee may reasonably require under which the new Servicer
shall undertake to the Trustee and other relevant parties to
be bound by all the covenants on the part of the Servicer
under the Transaction Documents from the date of execution of
the new deed on the same terms contained in the Transaction
Documents.
(b) On and from the date of execution of the new deed, the new
Servicer shall and may afterwards exercise all the powers,
enjoy all the rights and shall be subject to all the duties
and obligations of the Servicer under the Transaction
Documents as fully as though the new Servicer had been
originally named as a party to it.
8.7 Settlement and discharge
The Trustee shall settle with the outgoing Servicer the amount of any
sums payable by the outgoing Servicer to the Trustee or by the Trustee
to the outgoing Servicer and shall give to or accept from the outgoing
Servicer a discharge in respect of those sums which shall be conclusive
and binding as between the Trustee, the outgoing Servicer, the new
Servicer, the Trust Manager, the Beneficiaries and the Noteholders.
9 INDEMNITY
9.1 Indemnity
Subject to the succeeding provision of this clause, the Servicer fully
indemnifies the Trustee from and against any expense, loss, damage or
liability which the Trustee may incur as a consequence of a Servicer
Transfer Event, or a failure by the Servicer to perform its duties
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under this Agreement, including, without limitation, a failure to
deliver the Relevant Documents to the Trustee when it is required to do
so or to keep the Receivables Register in accordance with this
Agreement.
9.2 Limitation of liability
The Servicer is not liable:
(a) in connection with anything done by it in good faith in
reliance upon any document, form or list provided by or on
behalf of the Trustee except when it has actual knowledge, or
ought reasonably know, that the document, form or list is not
genuine;
(b) if it fails to do anything because it is prevented or hindered
from doing it by any Law; or
(c) subject to the Corporations Law, if a person (other than a
delegate or agent of the Servicer) fails to carry out an
agreement with the Trustee or the Servicer in connection with
the Services (except when the failure is due to the Servicer's
own neglect or default).
9.3 No liability for acts of certain persons
If the Servicer relies in good faith on an opinion, advice, information
or statement given to it, by a person the Servicer is not liable for
any misconduct, mistake, oversight, error of judgment, forgetfulness or
want of prudence on the part of that person, except:
(a) when the person is not independent from the Servicer; or
(b) it would not be reasonable to rely upon the opinion, advice,
information or statement from the person who gives it; or
(c) where that person is a delegate or agent of the Servicer.
A person will be regarded as independent notwithstanding that the
person acts or has acted as adviser to the Servicer so long as separate
instructions are given by the Servicer to that person.
9.4 No liability for loss etc
The Servicer is not liable:
(a) for any loss, cost, liability or expense arising out of the
exercise or non-exercise of a discretion by the Trustee or the
Trust Manager or the act or omission of the Trustee or the
Trust Manager except to the extent that it is caused by the
Servicer's own fraud, negligence or breach of duty or
contract; or
(b) for any loss, cost, liability or expense caused by its failure
to check any information, document, form or list supplied or
purported to be supplied to it by the Trustee or the Trust
Manager except to the extent that the loss is caused by the
Servicer's own fraud, negligence or breach of duty or
contract.
This exclusion does not apply in relation to the acts or omissions of
the Trust Manager for so long as the Servicer is the Trust Manager.
9.5 Method of claiming under indemnity
The Servicer shall not be obliged to pay any indemnity under this
Agreement, unless:
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(a) the Trustee first establishes that there has been a breach
that has caused loss;
(b) the indemnity claimed represents no more than the loss
incurred as a result of the breach; and
(c) the Trustee first gives the Servicer a written notice
specifying:
(i) the quantum of the claim; and
(ii) the basis of the claim.
9.6 Time of Payment
The Servicer shall pay any amount it is required to pay under this
Clause within 7 Business Days of receipt of notice under Clause 9.5.
10. REPRESENTATIONS AND WARRANTIES
10.1 Representations and Warranties
Each of Westpac and the Servicer makes the representations and
warranties in Clause 32 of the Master Trust Deed in relation to itself
for the benefit of the Trustee.
10.2 Reliance
The Servicer acknowledges that the Trustee has entered into this
Agreement in reliance on the representations and warranties in Clause
10.1.
10.3 Survival of Representations and Indemnities
(a) All representations and warranties in a Transaction Document
survive theexecution and delivery of the Transaction
Documents.
(b) Each indemnity in this Agreement:
(i) is a continuing obligation;
(ii) is a separate and independent obligation; and
(iii) survives termination or discharge of this Agreement.
11. WESTPAC AND THE SERVICER MAY ACT AS BANKER
Each of Westpac and the Servicer may (without having to account to the
Trustee) engage in any kind of banking, finance, trust or other
business permitted under any law with any Obligor as if, in the case of
Westpac, it did not have obligations under this Agrement, and, in the
case of the Servicer, it were not the Servicer. Neither Westpac nor the
Servicer shall not be required to account to the Trustee for any moneys
received by it on any account that is unrelated to Receivables and
Receivable Securities or the Services.
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12. ADMINISTRATIVE PROVISIONS
12.1 Notices
All notices, requests, demands, consents, approvals or agreements to or
by a party to this Agreement:
(a) must be in writing;
(b) must be signed by an Authorised Signatory of the sender; and
(c) will be taken to be duly given or made (in the case of
delivery in person or by post or facsimile transmission) when
delivered, received or left at the address of the recipient
shown in this Agreement or to any other address which it may
have notified the sender, but if delivery or receipt is on a
day on which business is not generally carried on in the place
to which the communication is sent or is later than 4 pm
(local time), it will be taken to have been duly given or made
at the commencement of business on the next day on which
business is generally carried on in that place.
12.2 Governing Law and Jurisdiction
This Agreement is governed by the laws of the Australian Capital
Territory. Each of the Servicer and the Trustee submits to the
non-exclusive jurisdiction of courts exercising jurisdiction there.
12.3 Assignment
Neither party may assign, novate, transfer or deal with its obligations
under this Agreement.
12.4 Amendment
This Agreement can only be amended in writing, and provided prior
notice of any proposed amendment is given to the Designated Rating
Agency.
12.5 Severability Clause
Any provisions of any Transaction Document which are prohibited or
unenforceable in any jurisdiction are ineffective to the extent of the
prohibition or unenforceability. That does not invalidate the remaining
provisions of that Transaction Document nor affect the validity or
enforceability of that provision in any other jurisdiction.
12.6 Costs and Expenses
(a) (Trustees costs and expenses) On demand each of Westpac and
the Servicer shall reimburse the Trustee for the reasonable
expenses of the Trustee (as applicable) in relation to any
enforcement of this Agreement against it including in each
case legal costs and expenses on a full indemnity basis and
each party shall bear their own costs (other than legal costs)
relating to the preparation execution and completion of this
Agreement;
(b) (Stamp duty) In addition, the Servicer shall pay all stamp and
registration Taxes (including fines and penalties) which may
be payable or determined to be payable in relation to the
execution, delivery, performance or enforcement of this
Agreement.
(c) (Services costs and expenses) In accordance with the Series
Notice, the Trustee shall reimburse the Servicer for the
reasonable expenses of the Servicer (as
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applicable) in relation to any enforcement of this Agreement
including in each case legal costs and expenses on a full
indemnity basis.
12.7 Waivers: Remedies Cumulative
(a) No failure on the part of a party to exercise and no delay in
exercising any right, power or remedy under any Transaction
Document operates as a waiver. Nor does any single or partial
exercise of any right, power or remedy preclude any other or
further exercise of that or any other right, power or remedy.
(b) The rights, powers and remedies provided to the Trustee in the
Transaction Documents are in addition to any right, power or
remedy provided by law.
EXECUTED in Canberra.
Each attorney executing this Agreement states that he has no notice of
revocation or suspension of his power of attorney.
SIGNED on behalf of )
WESTPAC BANKING CORPORATION )
by its attorneys in the )
presence of: )
XXXXXX XXXXX XXXXXXX XXXXX XXXX WINTOUR
------------------------------------- ------------------------------
Signature Signature
------------------------------------ ------------------------------
Print name Print name
------------------------------------ ------------------------------
Signature Signature
------------------------------------ ------------------------------
Print name Print name
SIGNED on behalf of )
THE MORTGAGE COMPANY PTY )
LIMITED by its attorney )
in the presence of: ) XXXXX XXXX WINTOUR
------------------------------
) Signature
XXXXXX XXXXX XXXXXXX
------------------------------------ ------------------------------
Witness Print name
------------------------------------
Print name
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SIGNED on behalf of )
WESTPAC SECURITIES )
ADMINISTRATION LIMITED )
by its attorney ) XXXXXXXXXXX XXXXXXXX
in the presence of: ) CHENOWORTH
-----------------------------
) Signature
XXXXXX XXXXX XXXXXXX
------------------------------------ -----------------------------
Witness Print name
------------------------------------
Print name
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SCHEDULE 1
RECEIVABLES REGISTER INFORMATION
The Receivables Register shall contain the following information in relation to
each Mortgage.
1. Name and address of the relevant Obligor(s).
2. Account/reference number of the loan under the relevant loan document,
letter of offer or terms and conditions.
3. The title reference for the relevant Mortgaged Property.
4. Such other information as the Servicer and the Trustee may agree from
time to time.
5. The registered dealing number of that Mortgage from the relevant Land
Titles Office together with:
(a) in respect of Mortgaged Property in New South Wales, the
volume and folio number(s) for the Mortgaged Property;
(b) in respect of Mortgaged Property in Queensland:
(i) a description of the lot, county, parish and title
reference(s) of the Mortgaged Property; and
(ii) full name and address of any party other than the
relevant Obligor(s) and Westpac having the right to
deal with the Mortgaged Property;
(c) in respect of Mortgaged Property in Western Australia:
(i) lot and diagram/plan/strata plan number(s) or
location name and number(s); and
(ii) volume and folio number(s) or crown lease number(s);
(d) in respect of Mortgaged Property in South Australia, the
volume and folio number(s) for the Mortgaged Property;
(e) in respect of Mortgaged Property in Tasmania, the volume and
folio number(s) for the Mortgaged Property;
(f) in respect of Mortgaged Property in the Australian Capital
Territory district/division, section, block, unit, volume and
folio number(s) for the Mortgaged Property;
(g) in respect of Mortgaged Property in the Northern Territory,
the Receivables Register, volume, folio, location, parcel,
plan and unit for the Mortgaged Property;
(h) in respect of Mortgaged Property in Victoria, the volume and
folio number(s) for the Mortgaged Property.
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SCHEDULE 2
AUDIT
1. Each audit referred to in Clause 3.3 shall involve a review of the
following:
(a) the custodial procedures adopted by the Servicer;
(b) that the Relevant Documents are capable of identification,
segregated by reference to the relevant Portfolio of
Receivables and from other mortgage title documents held by
the Servicer;
(c) that controls exist such that the Relevant Documents may not
be removed or tampered with except with appropriate
authorisation; and
(d) that an appropriate tracking system is in place such that the
location of the Relevant Documents can be detected at any
time.
2. The Auditor will review a sample of the Security Packets and confirm
that those Security Packets contain the Relevant Documents which the
Series Terms indicate that they should (including, as a minimum, the
Receivable Security documents, and any Certificate of Title if issued).
3. The Auditor's certificate referred to in Clause 3.3 will set out
whether any errors detected by the Auditor in the relevant audit were
the result of isolated non-compliance with the control system
established by the Servicer under this Agreement or result from a
weakness in that control system.
4. The Auditor's certificate referred to in Clause 3.3 will grade the
custodial performance of the Servicer under this Agreement based on the
following grades.
(A) Good - All control procedures and accuracy of
information in respect of Relevant Documents
completed without exception, other than
immaterial and occasional variances.
(B) Satisfactory - Minor exceptions to compliance with control
procedures and accuracy of information in
respect of Relevant Documents
(C) Improvement
required - Base internal controls are in place but a
number of issues were identified that need
to be resolved for controls to be considered
adequate; and testing of the relevant
information in respect of Relevant Documents
identified a number of minor exceptions to
compliance which are the result of
non-compliance with the control system
(D) Adverse - Major deficiencies in internal controls and
the relevant information in respect of the
Relevant Documents were identified.
