EXHIBIT 10.1
Westpac Securitisation Trusts
Servicing Agreement
Westpac Banking Corporation
(Westpac)
Westpac Securities Administration Limited
(Trustee)
Westpac Securitisation Management Pty Limited
(Trust Manager)
The ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Table of Contents
1. Definitions and interpretation 1
1.1 Definitions 1
1.2 Interpretation 3
1.3 Limitation of Trustee's Liability 4
1.4 Series Notice 5
2. Appointment of Servicer 5
2.1 Appointment 5
2.2 General duties and standard of care 5
2.3 Powers 5
2.4 Records 6
2.5 Servicer's power to delegate 6
2.6 Servicer's power to subcontract 6
2.7 Servicer's power to appoint advisers 7
2.8 Legal title 7
2.9 License to enter Premises 7
3. Duties and responsibilities of the Servicer as custodian 7
3.1 General 7
3.2 Locate and Access 8
3.3 Audit 8
3.4 Transfer of Custody 9
4. Undertakings 9
4.1 Servicing Undertakings 9
4.2 Westpac Undertakings 11
4.3 Westpac's power to delegate 13
4.4 Adverse Effect 13
5. Procedures manual 13
5.1 Trustee bound by acts of Servicer 13
5.2 No liability for compliance 14
5.3 Amendments to Procedures Manual 14
6. Collection and remittance of moneys 14
6.1 Collection of moneys 14
6.2 Remittances 15
6.3 Remittances to Trustee 15
6.4 Payments and Computations, etc. 15
6.5 Report by Servicer 16
6.6 No Right of Set-Off 16
7. Servicer fees 16
7.1 Fee 16
7.2 Expenses of Servicer and Westpac 16
8. Termination 17
8.1 Expiry of Term 17
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8.2 Servicer Transfer Event 17
8.3 Resignation 17
8.4 Survival 17
8.5 Release of outgoing Servicer 18
8.6 New Servicer to execute deed 18
8.7 Settlement and discharge 18
9. Indemnity 18
9.1 Indemnity 18
9.2 Limitation of liability 19
9.3 No liability for acts of certain persons 19
9.4 No liability for loss etc 19
9.5 Method of claiming under indemnity 19
9.6 Time of Payment 20
10. Representations and warranties 20
10.1 Representations and Warranties 20
10.2 Reliance 20
10.3 Survival of Representations and Indemnities 20
11. Westpac and the Servicer may act as banker 20
12. Administrative provisions 20
12.1 Notices 20
12.2 Governing Law and Jurisdiction 21
12.3 Assignment 21
12.4 Amendment 21
12.5 Severability Clause 21
12.6 Costs and Expenses 21
12.7 Waivers: Remedies Cumulative 21
Schedule 1 25
RECEIVABLES REGISTER INFORMATION 25
SCHEDULE 2 26
AUDIT 26
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Date 2001
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Parties
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1. WESTPAC BANKING CORPORATION (ARBN 007 457 141) incorporated in New
South Wales of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ in its capacity as an Approved
Seller (Westpac);
2. WESTPAC SECURITIES ADMINISTRATION LIMITED (ACN 000 049 472)
incorporated in New South Wales of ▇▇▇▇▇ ▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
(the Trustee); and
3. WESTPAC SECURITISATION MANAGEMENT PTY LIMITED (ACN ▇▇▇ ▇▇▇ ▇▇▇)
incorporated in the Australian Capital Territory, of ▇▇▇▇▇ ▇▇, ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ (▇▇▇ Trust Manager).
Recitals
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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, in its capacity as an Approved Seller, 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.
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It is agreed as follows.
1. Definitions and interpretation
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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
Notice 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 any of the following events:
(a) a Further Audit resulting in an adverse report;
(b) a Servicer Downgrade; or
(c) the Servicer is in default under a servicing agreement between it and
any other person, and by reason of the default that other person
removes any documents in the Servicer's custody under the servicing
agreement where that person would otherwise not have been entitled to
do so.
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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
Mortgage Company Pty Limited dated 14 February 1997.
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 ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 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.
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Servicer means Westpac or any other person who accedes to the position of
Servicer under clause 8.6.
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;
(b) the Servicer fails to pay any amount in accordance with any
Transaction Document within 5 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) Clause 33 of the Master Trust Deed applies to the obligations and
liabilities of the Trustee under this agreement.
(b) 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(d)) 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.
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(c) The parties other than the Trustee may not ▇▇▇ 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.
(d) 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
(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.
(e) It is acknowledged that the Trust Manager of the Relevant Trust is
responsible under the Master Trust Deed and the Series Notice for the
Relevant Trust 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(d) 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.
(f) 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(d).
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
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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;
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(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 will 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 any person for such purposes and with
such powers, authorities and discretions (not exceeding those vested
in the Servicer) as the Servicer thinks fit, including with:
(i) power for the attorney or agent to sub-delegate any such powers,
authorities or discretions;
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(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,
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 omissions
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 subcontract
Without in any way affecting the generality of the above, the Servicer may
subcontract with any person for such purposes as the Servicer thinks fit.
In particular, the Trustee and Trust Manager acknowledge that the Servicer
may engage EDS (Business Process Administration) Pty Limited (ABN 81 095
806 125) as a subcontractor in relation to all or some of the Servicer's
duties and obligations under this agreement. Despite any subcontracting
under this clause, the Servicer shall remain liable for the performance of
the Services in accordance with this agreement and shall be solely
responsible for the fees of any subcontractor engaged.
2.7 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.
2.8 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.
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2.9 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
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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 practices;
(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;
(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 either it or its holding company (if any) 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 neither it nor its holding company (if any) has such a
rating; on the last Business Day of each calendar quarter
during the Term;
(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
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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.
(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
must, 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
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its interests in the Receivables and Receivable Securities for which it
does not hold the Relevant Documents.
4. Undertakings
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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, licences,
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
(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, in its capacity as an Approved Seller,
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;
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(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;
(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
for a Relevant Trust in accordance with the requirements of
the Series Notice for that Relevant Trust; and
(ii) subject to the Series Notice for that Relevant Trust, 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 Notice for that Relevant Trust and
promptly notify the relevant Obligors;
(k) (notification) notify:
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(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 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, in its capacity as an Approved Seller, 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
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(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) if Westpac is not 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 (or, if Westpac is the Servicer, such
action as Westpac determines in accordance with its ordinary course
of business);
(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 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
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(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 is
not the Servicer, 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, 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
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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.
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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.
6. Collection and remittance of moneys
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6.1 Collection of moneys
(a) Westpac, in its capacity as an Approved Seller, 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, from time to time if it is not the Servicer, 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 so 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.
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6.2 Remittances
(a) If Westpac has a Westpac Remittance Rating or otherwise satisfies
the requirements of each Designated Rating Agency so that any rating
given by any Designated Rating Agency in respect of any relevant
Notes will not be adversely affected, Westpac, in its capacity as an
Approved Seller, must pay the Collections it receives during a
Collection Period on the Remittance Date for that Collection Period
into the relevant Collection Account.
(b) Subject to the terms of the relevant Series Notice, on that
Remittance Date, Westpac, in its capacity as an Approved Seller,
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 Westpac Remittance Rating or otherwise
does not satisfy the requirements of each of those Designated Rating
Agencies so that the rating given by any Designated Rating Agency in
respect of any relevant Notes will be adversely affected, then
Westpac, in its capacity as an Approved Seller, shall pay all
Collections in its possession or control into the relevant
Collection Account no later than five Business Days following
receipt.
(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, in its capacity as an
Approved Seller, 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, in its
capacity as an Approved Seller, shall make all payments to the
Trustee under a Transaction Document:
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(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
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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.
7.2 Expenses of Servicer and Westpac
(a) The Trustee must reimburse the Servicer and Westpac, in its capacity
as an Approved Seller, 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, in its capacity as an Approved Seller,
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, in its
capacity as an Approved Seller, will only be reimbursed where it has
obtained that consent. This right of reimbursement to Westpac, in
its capacity as an Approved Seller, 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.
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(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, in its capacity as an Approved Seller, 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
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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 must terminate this
agreement with immediate effect. The Trustee must promptly give
notice of that termination to the Trust Manager, the Approved
Seller, the Servicer and the Designated Rating Agencies.
(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.
(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.
(d) [If this agreement is terminated in accordance with this clause 8.2,
then until the Trustee appoints an Eligible Servicer to be the
Servicer, and that Eligible Servicer agrees to act as Servicer, the
Trust Manager shall act as Servicer and is entitled to the fee
payable under clause 7 while so acting.]
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, which
Eligible Servicer has agreed to act as Servicer, by the expiration of that
notice period, the Servicer shall continue to act as Servicer and be
entitled to the fee payable under Clause 7 while so acting, provided that:
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(a) the Trust Manager and the Trustee shall use all reasonable efforts
to appoint an Eligible Servicer to be the Servicer; and
(b) if, after 5 months from the date on which the Servicer gave notice
of its resignation, no Eligible Servicer has been appointed and has
agreed to act as Servicer, then the Servicer shall be entitled to
select an Eligible Servicer and, on behalf of the Trustee and the
Trust Manager, appoint that Eligible Servicer to be the Servicer.
Each of the Trustee and Trust Manager irrevocably authorises the
Servicer to make that appointment on its behalf. Upon that Eligible
Servicer being appointed and agreeing to act as Servicer, the
Servicer shall be released from its obligations under this agreement
in accordance with clause 8.5.
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 agreement at that date, the outgoing Servicer
shall be released from all further obligations under this agreement 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
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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 under
this agreement,
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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 Act, 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.
9.5 Method of claiming under indemnity
The Servicer shall not be obliged to pay any indemnity under this
agreement, unless:
(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:
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(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
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10.1 Representations and Warranties
[Each of Westpac, in its capacity as an Approved Seller, 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
the execution 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
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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 agreement, and, in the case of the
Servicer, it were not the Servicer. Neither Westpac, in its capacity as an
Approved Seller, 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.
12. Administrative provisions
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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
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(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
No party may assign its rights 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, in its
capacity as an Approved Seller, 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 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
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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.
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Executed in Canberra
Each attorney executing this agreement states that he has no notice of
revocation or suspension of his power of attorney.
WESTPAC
SIGNED on behalf of )
WESTPAC BANKING CORPORATION )
)
by its attorney )
in the presence of: )
---------------------------------------
Signature
---------------------------------- ---------------------------------------
Witness Print name
----------------------------------
Print name
TRUSTEE
SIGNED on behalf of )
WESTPAC SECURITIES )
ADMINISTRATION LIMITED )
by its attorney )
in the presence of: )
---------------------------------------
Signature
---------------------------------- ---------------------------------------
Witness Print name
----------------------------------
Print name
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TRUST MANAGER
SIGNED on behalf of )
WESTPAC SECURITISATION )
MANAGEMENT PTY LIMITED )
by its attorney )
in the presence of: )
---------------------------------------
Signature
---------------------------------- ---------------------------------------
Witness Print name
----------------------------------
Print name
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Schedule 1
RECEIVABLES REGISTER INFORMATION
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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, a description of the
lot, county, parish and title reference(s) of 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
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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
Notice for the Relevant Trust indicates 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.
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