Mortgage Origination & Management
Agreement
PERPETUAL TRUSTEES AUSTRALIA LIMITED
The Trustee
SUPERANNUATION MEMBERS' HOME LOANS LIMITED
The Trust Manager
NATIONAL MUTUAL PROPERTY SERVICES (AUST.) PTY LIMITED
The Mortgage Manager
TABLE OF CONTENTS
CLAUSE PAGE
1. DEFINITIONS AND INTERPRETATION 1
1.1 DEFINITIONS 1
1.2 INTERPRETATION 5
2. APPOINTMENT 7
2.1 APPOINTMENT 7
2.2 ACCEPTANCE OF APPOINTMENT 7
2.3 AGREED PROCEDURES 7
3. STATUS OF MORTGAGE MANAGER 7
3.1 INDEPENDENT CONTRACTOR 7
3.2 USE BY MORTGAGE MANAGER OF APPROVED MATERIALS 8
3.3 SPECIFIC INDEMNITY 8
4. ORIGINATION PROCEDURES 8
4.1 MAKING OF ORIGINATION PROPOSALS 8
4.2 FORM OF ORIGINATION PROPOSALS 8
4.3 IMPLEMENTATION OF AGREED PROCEDURES 8
5. GENERAL MANAGEMENT OF MORTGAGES 8
5.1 REQUIRED DEGREE OF SKILL AND CARE 8
5.2 EXERCISE OF POWERS 9
5.3 MORTGAGE MANAGER'S POWER TO APPOINT AGENTS 9
5.4 MORTGAGE MANAGER WILL ACCOUNT TO TRUSTEE FOR MONEYS RECEIVED 10
5.5 TRUSTEE TO RECEIVE MORTGAGE MONEY 10
5.6 MORTGAGE MANAGER TO KEEP TRUST ASSETS SEPARATE 10
5.7 MAINTENANCE OF RECORDS 10
5.8 RECORDS PROPERTY OF TRUSTEE 11
5.9 AVAILABILITY OF MORTGAGE MANAGER'S RECORDS AND OTHER INFORMATION 11
5.10 COMPLIANCE WITH LAWS 12
5.11 CUSTODY OF DOCUMENTS 12
5.12 DIRECTIONS OF TRUST MANAGER 12
5.13 BOND ISSUE CONFIRMATION CERTIFICATE 12
6. REPORTING 13
6.1 PERIODIC REPORTS 13
6.2 FINANCIAL INFORMATION 13
6.3 ADVERSE INFORMATION 13
7. DEFAULT PROCEDURES 13
7.1 ADVISING OF DEFAULTS 13
7.2 PROCEDURES ON DEFAULT 14
7.3 MORTGAGE MANAGER TO COMPLY WITH DIRECTIONS 14
7.4 MORTGAGE MANAGER MAY INCUR COSTS 14
7.5 TRUSTEE AND TRUST MANAGER TO FACILITATE ENFORCEMENT 14
7.6 MORTGAGE INSURANCE CLAIMS 15
7.7 REPORTING OF ENFORCEMENT ACTION 15
8. PROPERTY INSURANCE 15
9. REIMBURSEMENT OF MORTGAGE MANAGER 16
9.1 MORTGAGE MANAGER TO BEAR OWN COSTS 16
9.2 MORTGAGE MANAGER TO INDEMNIFY TRUSTEE FOR COSTS 16
9.3 REIMBURSEMENT OF MORTGAGE MANAGER 16
10. REPRESENTATIONS AND WARRANTIES 17
10.1 REGARDING MORTGAGES 17
10.2 REGARDING THE MORTGAGE MANAGER 18
10.3 TRUSTEE'S RELIANCE ON REPRESENTATIONS AND WARRANTIES 19
11. INDEMNITY 19
12. AGREED PROCEDURES 20
12.1 ACKNOWLEDGMENT 20
12.2 CHANGES TO AGREED PROCEDURES 20
12.3 INCONSISTENCY 20
13. MORTGAGE MANAGER'S FEES 20
13.1 SERVICING FEE 20
13.2 OTHER MORTGAGE MANAGER FEES 20
14. TERMINATION 20
14.1 TERMINATION BY TRUSTEE 20
14.2 TERMINATION BY MORTGAGE MANAGER 21
14.3 EFFECT OF TERMINATION 21
14.4 SURVIVAL OF OBLIGATIONS 21
15. ASSIGNMENTS 21
15.1 BY MORTGAGE MANAGER 21
15.2 BY TRUSTEE OR TRUST MANAGER 22
16. NOTICES 22
17. THE TRUSTEE 23
17.1 TRUSTEE OF THE FUNDS 23
18. MISCELLANEOUS 24
18.1 GOVERNING LAW 24
18.2 JURISDICTION 25
18.3 SEVERABILITY OF PROVISIONS 25
18.4 COUNTERPARTS 25
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TABLE OF CONTENTS
CLAUSE PAGE
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TABLE OF CONTENTS
CLAUSE PAGE
AGREEMENT made in on 1994
BETWEEN PERPETUAL TRUSTEES AUSTRALIA LIMITED ACN ▇▇▇ ▇▇▇ ▇▇▇ of ▇▇▇▇▇ ▇,
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (the "TRUSTEE")
AND SUPERANNUATION MEMBERS' HOME LOANS LIMITED, ACN 005 964 134 of
▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ (the "TRUST
MANAGER")
AND NATIONAL MUTUAL PROPERTY SERVICES (AUST.) PTY LIMITED, ACN 006 240
884 of ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ (the
"MORTGAGE MANAGER")
IT IS AGREED:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
The following words and expressions have the following meanings when
used in this Agreement.
"AGREED PROCEDURES" means the practices and procedures relating to the
origination, management and servicing of the Mortgages from time to time
notified by the Trust Manager to the Mortgage Manager for the purposes
of this Agreement. The initial Agreed Procedures are set out in the
document entitled "SMHL Mortgage Product - Agreed Procedures Manual
(Mortgage Origination and Management)" dated on or about the date of
this Agreement.
"APPLICATION FOR LOAN" means an application by a prospective Mortgagor
for a Loan.
"APPROVED MORTGAGE INSURANCE POLICY" means the Mortgage Insurance Policy
maintained by the Trustee to cover certain losses incurred in connection
with Mortgages originated in accordance with this Agreement.
"APPROVED SOLICITOR" means a solicitor or other person approved in
accordance with the Agreed Procedures to act for the Trustee in relation
to settling Mortgages as contemplated by this Agreement.
"APPROVED VALUER" means a person approved in accordance with the Agreed
Procedures to act for the Trustee in valuing Properties.
"AUTHORISED SIGNATORY" in relation to any corporation means any
person from time to time certified in writing by two directors of the
corporation (or, in the case of the Trustee, by any divisional
manager) to be an authorised signatory of the corporation, whose
signature appears on such certificate and which such signature is
certified thereon by such directors (or such divisional manager) to be
that person's signature.
"AUTHORITY" means any government, or any government or semi-government
authority, administrative, fiscal or judicial body, department,
commission or other like body.
"BANKING DAY" means a day, other than a Saturday, Sunday or public
holiday on which banks and financial institutions generally are open for
business in Melbourne.
"BOND ISSUE CONFIRMATION CERTIFICATE" means a certificate substantially
in the form of the Schedule.
"COLLATERAL SECURITY" means, in relation to a Mortgage, each guarantee,
indemnity or other Encumbrance executed in favour of the Trustee or held
by the Trustee as further security for the money secured by that
Mortgage.
"DEFAULTING MORTGAGE" means a Mortgage in respect of which an Event of
Default has occurred which has not been remedied to the satisfaction of
the Trust Manager and the Trustee or waived by or on behalf of the
Trustee.
"DISPUTE RESOLUTION PROCEDURES" means any procedures from time to time
in force which are agreed to between the Trustee and the Trust Manager
relating to the resolution of any dispute in relation to any Mortgage
Document or any proposed or prospective Loan.
"DUE DATE" means, in relation to a Mortgage Instalment, the date upon
which the relevant Mortgagor is due to pay that Mortgage Instalment in
accordance with the relevant Mortgage.
"ENCUMBRANCE" means a mortgage, charge, caveat or other security
interest.
"ENHANCEMENT" means any security, support, rights or benefits in support
of or substitution for an Authorised Investment or the income or benefit
arising thereon, including (but not limited to) a Mortgage Insurance
Policy.
"EVENT OF DEFAULT" means, in relation to a Mortgage, any event which
entitles the Trustee as mortgagee to demand immediate repayment of the
money secured by that Mortgage and to enforce that Mortgage.
3.
"EVENT OF INSOLVENCY" in relation to a person means each of the
following events:
(a) a liquidator, provisional liquidator, trustee, manager, receiver,
receiver and manager, administrator or similar officer is appointed
in respect of the person or any of its assets;
(b) an application is made to a court for an order or an order is made
or a meeting is convened or a resolution is passed for the purpose
of appointing a person referred to in paragraph (a) or for winding
up the person or for implementing a scheme of arrangement for the
person;
(c) a moratorium of any debts of the person or an official assignment
or a composition or an arrangement formal or informal with the
person's creditors or any similar proceeding or arrangement by
which the assets of the person are submitted to the control of its
creditors is applied for ordered or declared;
(d) the person becomes or is declared or is deemed insolvent within the
meaning of any applicable law or is unable or admits in writing its
inability to pay its debts as they fall due; or
(e) any distress, execution, attachment or other process is made or
levied against any asset of the person.
"EXPENSE" means, in relation to a Fund, all costs, charges and expenses
incurred by the Trustee or the Trust Manager in the operation of that
Fund pursuant to the Trust Deed.
"FACE VALUE" means in relation to a Mortgage and at any time, the
principal amount of the Loan secured by that Mortgage at that time.
"FINANCIAL STATEMENTS" means, in relation to a person, a profit and loss
account and balance sheet for that person, together with any notes or
other accounts or documents incorporated into or annexed to them.
"FUND" means each individual trust fund created by the Trustee pursuant
to the Trust Deed.
"GUARANTOR" means, in relation to a Mortgage, any person (other than the
Mortgagor) who has executed a Collateral Security in favour of the
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Trustee.
"INTEREST HEDGE" means any futures contract, option agreement, hedge,
swap, cap, forward rate agreement or other arrangement in relation to
interest rates made by the Trustee (whether alone or with the Trust
Manager or any other person) in accordance with the Trust Deed.
"LAW" means any law, regulation, rule, ordinance, by-law, statutory
instrument or order of the Commonwealth of Australia, any State or
Territory, or any local or municipal council or body.
"LOAN" means a loan secured by a Mortgage.
"LOAN INSTALMENT" means, in relation to a Mortgage, each payment
(whether of principal, interest or both) due to be made in respect of
that Mortgage on a periodic or regular basis.
"MORTGAGE" means a mortgage over land situated in any Australian
jurisdiction which is originated and settled by the Mortgage Manager on
behalf of the Trustee in accordance with this Agreement.
"MORTGAGE DOCUMENT" means in relation to a Mortgage:
(a) that Mortgage;
(b) each Secured Agreement relating to that Mortgage;
(c) each Collateral Security relating to that Mortgage;
(d) each Property Insurance relating to that Mortgage;
(e) each Enhancement, to the extent it relates to that Mortgage;
(f) each Interest Hedge to the extent it relates to that Mortgage;
(g) each Mortgage Insurance Policy, to the extent it relates to that
Mortgage; and
(h) any other document or agreement which is agreed between the Trustee
and/or the Trust Manager and the Mortgage Manager to be a Mortgage
Document for the purposes of this Agreement.
"MORTGAGE INSTALMENT" means all or any part of any amount of
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principal or interest payable by a Mortgagor under or secured by a
Mortgage on a periodic basis. It does not include any amount which
becomes due and payable upon or after the acceleration of the repayment
of the principal amount of a Loan following the occurrence of an Event
of Default under that Mortgage.
"MORTGAGE INSURANCE POLICY" means a policy of insurance under which,
amongst other things, an insurer insures a Mortgage against loss by the
Trustee for a fixed sum or a percentage (up to and including 100%) of
the Face Value of the Mortgage.
"MORTGAGOR" means the mortgagor under a Mortgage.
"PERIODIC REPORTS" means all reports, information and data which the
Mortgage Manager is required by the Agreed Procedures to give to the
Trust Manager on a regular or periodic basis.
"PORTFOLIO OF MORTGAGES" has the same meaning as in the Trust Deed.
"POWER" means, in relation to a Mortgage Document any right, power or
discretion conferred on the Trustee or the Mortgage Manager by that
Mortgage Document or by any Law.
"PROGRAMME" means the programme for the establishment of the
Superannuation Members' Loans Trusts under the Trust Deed, the issue of
Bonds (as defined in and in the manner contemplated by the Trust Deed)
and the origination of Loans secured by Mortgages in accordance with the
Trust Deed.
"PROPERTY" means, in relation to a Mortgage, the property the subject of
that Mortgage.
"PROPERTY INSURANCES" means, in relation to a Mortgage, all insurance
policies which a Mortgagor maintains, or is required to maintain under
that Mortgage.
"SECURED AGREEMENT" means, in relation to a Mortgage, any document or
agreement under which any money secured by that Mortgage is or may
become outstanding.
"SECURITISATION FUND BOND ISSUE DIRECTION" has the same meaning as in
the Trust Deed.
"SOLICITOR'S CERTIFICATE" means, in relation to a Mortgage, a
6.
certificate from an Approved Solicitor addressed to the Trustee and the
Trust Manager as to certain matters relating to the origination of that
Mortgage and the Property, such certificate to be in the form required
from time to time by the Agreed Procedures.
"TRUST DEED" means the Master Trust Deed dated on or about the date of
this Agreement made between the Trust Manager and the Trustee pursuant
to which a series of separate trusts are to be established, to be called
collectively the "Superannuation Members' Home Loans Trusts" (or such
other name as the Trustee and the Trust Manager may from time to time
agree.
"UNIFORM CONSUMER CREDIT LEGISLATION" means, in relation to any State or
Territory of Australia, the legislation proposed to be enacted in that
State or Territory in the manner contemplated by the agreement entitled
Australian Uniform Credit Laws Agreement 1993 entered into between the
States and Territories of Australia, or (as the case may be) that
legislation as enacted.
"VALUATION" means, in relation to a Mortgage, a valuation of the
Property, prepared by an Approved Valuer and in a form which complies
with the Agreed Procedures.
1.2 INTERPRETATION
In this Agreement, the Recitals and Schedules, unless the context
indicates a contrary intention:
(a) the expression "PERSON" includes an individual, a body politic, a
corporation and a statutory or other authority or association
(incorporated or unincorporated);
(b) a reference to any party includes that party's executors,
administrators, successors, substitutes and assigns, including any
person taking by way of novation;
(c) a reference herein to any legislation or to any section or
provision thereof includes any statutory modification or
re-enactment or any statutory provision substituted therefor and
all ordinances, by-laws, regulations and other statutory
instruments issued thereunder;
(d) the expression "CORPORATION" means any body corporate wherever
formed or incorporated, including without limiting
7.
the generality of the foregoing, any public authority or any
instrumentality of the Crown in the right of any Australian
Jurisdiction;
(e) the expression "CERTIFIED" by a corporation or person means
certified in writing by 2 Authorised Signatories of the corporation
or by that person respectively and "CERTIFY" and like expressions
shall be construed accordingly;
(f) words importing the singular shall include the plural (and vice
versa) and words denoting a given gender shall include all other
genders;
(g) headings are for convenience only and shall not affect the
interpretation hereof;
(h) a reference to a clause or a Schedule is, respectively, a reference
to a clause or Schedule of this Deed;
(i) where any word or phrase is given a defined meaning any other part
of speech or other grammatical form in respect of such word or
phrase has a corresponding meaning;
(j) where the day on or by which any sum is payable hereunder or any
act, matter or thing is to be done is a day other than a Banking
Day such sum shall be paid and such act, matter or thing shall be
done on the next succeeding Banking Day;
(k) all accounting terms shall be interpreted in accordance with
accounting standards under the Corporations Law and the Regulations
and, where not inconsistent with those accounting standards and
Regulations generally accepted principles and practices in
Australia consistently applied by a body corporate or as between
bodies corporate and over time;
(l) a reference to a "MONTH" is to a calendar month; and
(m) a reference to any document is to such document as amended, varied,
supplemented or novated from time to time.
2. APPOINTMENT
2.1 APPOINTMENT
8.
In exercise of the powers conferred upon it by the Trust Deed, the
Trustee and the Trust Manager appoint the Mortgage Manager on the
terms of this Agreement to exercise certain powers and discretions and
perform certain obligations in relation to the origination and
management of Loans and Mortgages.
2.2 ACCEPTANCE OF APPOINTMENT
The Mortgage Manager accepts its appointment under clause 2.1 upon and
subject to the terms of this Agreement.
2.3 AGREED PROCEDURES
In exercising its powers and performing its obligations under this
Agreement, the Mortgage Manager must comply and act in accordance with
the Agreed Procedures in all respects.
3. STATUS OF MORTGAGE MANAGER
3.1 INDEPENDENT CONTRACTOR
Except for the express delegation to the Mortgage Manager of the
exercise of the Powers relating to Mortgage Documents contained in
this Agreement, the Mortgage Manager agrees that in performing its
obligations under this Agreement:
(a) it is an independent contractor and is not the agent, partner or
employee of the Trustee or the Trust Manager;
(b) it must not (except as permitted by clause 3.2) hold itself out as,
or engage in conduct which would lead others to believe that it is
a mortgagee under a Mortgage or the agent, partner or employee of
the Trustee or the Trust Manager;
(c) it will be solely responsible for the acts or omissions of its
employees or agents, or of independent contractors, advisers or
representatives engaged by it in the performance of its obligations
under this Agreement; and
(d) it must not (except as permitted by clause 3.2) issue any
promotional or advertising material which includes the name of the
Trustee or the provider of any Enhancement without the prior
written consent of the Trustee or that Enhancement provider.
9.
3.2 USE BY MORTGAGE MANAGER OF APPROVED MATERIALS
The Mortgage Manager may in performing its obligations under this
Agreement use stationery, forms, documents and advertising,
promotional and other material approved by or on behalf of the Trustee
or the Trust Manager for use in connection with the Programme,
provided that the Mortgage Manager complies with Agreed Procedures in
doing so.
3.3 SPECIFIC INDEMNITY
The Mortgage Manager must indemnify the Trustee and the Trust Manager
for all costs, losses, damages, claims and expenses suffered or
incurred by the Trustee or the Trust Manager as a result of the
Mortgage Manager, or any employee, agent or other person engaged by
the Mortgage Manager being, or being held to be, the agent, partner or
employee of the Trustee or the Mortgage Manager.
4. ORIGINATION PROCEDURES
4.1 MAKING OF ORIGINATION PROPOSALS
The Mortgage Manager shall from time to time give to the Trustee a
written proposal for the investment of the assets of the Funds in Loans
upon the security of Mortgages, and for the sale, transfer or other
realisation of or dealing with any such Loans or Mortgages. The proposal
shall also contain a recommendation by the Mortgage Manager for the
Trustee to make the investment or other dealing which is the subject of
the proposal.
4.2 FORM OF ORIGINATION PROPOSALS
A proposal made by the Mortgage Manager under clause 4.1 must be in the
form, contain the information, be accompanied by the documents, and be
made in accordance with the Agreed Procedures and any relevant Mortgage
Insurance Policy.
4.3 IMPLEMENTATION OF AGREED PROCEDURES
If the Trustee, acting on a recommendation by the Mortgage Manager in a
proposal under clause 4.1, accepts the proposal, the Mortgage Manager
must take all action which it is required to take in implementing that
proposal under the Agreed Procedures and any relevant Mortgage Insurance
Policy. In doing so, the Mortgage Manager must use the same degree of
skill and care as would be used by a responsible and prudent mortgagee.
10.
5. GENERAL MANAGEMENT OF MORTGAGES
5.1 REQUIRED DEGREE OF SKILL AND CARE
The Mortgage Manager must manage each Mortgage using the same degree of
skill and care as would be used by a responsible and prudent mortgagee
and in accordance with:
(a) this Agreement;
(b) the requirements of any Mortgage Insurance Policy covering that
Mortgage; and
(c) the Agreed Procedures.
5.2 EXERCISE OF POWERS
The Mortgage Manager must exercise all of the Powers and perform all
of the obligations and functions of the Mortgagee under the Mortgages,
including corresponding with the Mortgagors, preparing and sending out
statements of account to Mortgagors, and enforcing the Mortgages in
accordance with this Agreement.
5.3 MORTGAGE MANAGER'S POWER TO APPOINT AGENTS
(a) (POWER TO DELEGATE): The Mortgage Manager may, in carrying out and
performing its duties and obligations under this Agreement:
(i) (APPOINT ATTORNEYS): from time to time appoint any person to
be its attorney or agent for such purposes and with such
powers (not exceeding those vested in the Mortgage Manager) as
the Mortgage Manager thinks fit, with power for the attorney
or agent to sub-delegate any such Powers and also to authorise
the issue in the name of the Mortgage Manager of documents
bearing facsimile signatures of the Mortgage Manager or of the
attorney or agent, either with or without proper manuscript
signatures of their officers thereon and the Mortgage Manager
in any such power of attorney, and the attorney or agent by
the terms of any such sub-delegation, may insert such
provisions for the protection and convenience of those dealing
with any such attorney or agent or sub-delegate as they may
think fit; and
11.
(ii) (TERMINATE APPOINTMENTS): terminate, suspend or revoke any
appointment made pursuant to sub-paragraph (i) above,
(b) (LIABILITY FOR DELEGATES): Subject to paragraph (c) below, the
Mortgage Manager shall continue to be liable to the Trustee for the
acts or omissions of any person appointed as its attorney or agent
pursuant to paragraph (a) above.
(c) (NO LIABILITY): The Mortgage Manager shall have no liability for
the acts or omissions of any Approved Solicitor or Approved Valuer,
provided that:
(i) any such person is appointed in accordance with the Agreed
Procedures; and
(ii) the terms of such appointment are such that each such person
is appointed to act for the Trustee and is directly liable to
the Trustee for its acts or omissions in acting as an Approved
Solicitor or Approved Valuer (as the case may be).
5.4 MORTGAGE MANAGER WILL ACCOUNT TO TRUSTEE FOR MONEYS RECEIVED
The Mortgage Manager must immediately (and in any event within one
Banking Day of receipt) pay to the Trustee all money which it receives
under or in connection with any Mortgage Document or as a result of or
in connection with the exercise of any Power under any Mortgage
Document.
5.5 TRUSTEE TO RECEIVE MORTGAGE MONEY
The Mortgage Manager must ensure that, except and to the extent
expressly provided in this Agreement, all money:
(a) paid or payable under or in connection with any Mortgage Document;
or
(b) received, receivable or realised following the exercise of any
Power relating to a Defaulting Mortgage,
is paid to an account in the name of the Trustee designated by the
Trust Manager from time to time.
12.
5.6 MORTGAGE MANAGER TO KEEP TRUST ASSETS SEPARATE
The Mortgage Manager must keep any assets of any Fund which it holds
from time to time separate from any other property belonging to or
held by the Mortgage Manager.
5.7 MAINTENANCE OF RECORDS
The Mortgage Manager must keep accounting and other records which
correctly record and explain:
(a) the origination and settlement of each Mortgage;
(b) the entering into of all Mortgage Documents entered into in
connection with each Mortgage;
(c) all payments made and received by or on behalf of the Trustee under
each Mortgage Document;
(d) all action taken in the exercise of any Power; and
(e) the financial position at any time in relation to each Mortgage in
a manner which will enable the preparation from time to time of
accounts and other financial statements in accordance with the
requirements of all applicable Laws and otherwise in such form as
the Trust Manager from time to time requires.
These accounting and other records must be kept in such form and using
such data storage, access and retrieval methods as are set out in the
Agreed Procedures.
5.8 RECORDS PROPERTY OF TRUSTEE
All accounting and other records kept by the Mortgage Manager under
clause 5.7 shall be the property of the Trustee and the Mortgage
Manager must deliver all such records to the Trustee promptly upon
request and in any event upon termination of this Agreement.
5.9 AVAILABILITY OF MORTGAGE MANAGER'S RECORDS AND OTHER INFORMATION
The Mortgage Manager must:
(a) (PRODUCE BOOKS): make available for inspection by the Trustee, the
Trust Manager or any person authorised by either
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of them, during normal business hours and upon reasonable notice
all books and records maintained by the Mortgage Manager under or
for the purposes of this Agreement;
(b) (TAKE COPIES): permit the Trustee or the Trust Manager to take
copies of those books and records, using the Mortgage Manager's
copying and other office equipment and at no cost to the Trustee or
the Trust Manager;
(c) (PROVIDE INFORMATION): give to the Trustee, the Trust Manager or
any person authorised by either of them such written or oral
information as any such person requires with respect to all matters
relating to the performance by the Mortgage Manager of its
obligations under this Agreement; and
(d) (COMPUTER ACCESS): provide the Trust Manager with access to any
computer database on which any accounting or other records
maintained by the Mortgage Manager under or for the purposes of
this Agreement are kept on the following basis:
(i) the method of access will be by standard telephone line and
modem link or such other method of access as the Trust
Manager selects in its reasonable discretion from time to
time;
(ii) the Trust Manager must co-operate in all respects necessary
or desirable to establish that access and must bear the costs
of establishment; and
(iii) the access provided by the Mortgage Manager must be
continuous for 24 hours per day, except for periods during
which necessary maintenance work or unforeseen system failure
make access impossible.
5.10 COMPLIANCE WITH LAWS
The Mortgage Manager must comply with all Laws in performing its
obligations under this Agreement, including (without limitation) those
relating to or regulating the engaging in of misleading, deceptive and
unconscionable conduct.
5.11 CUSTODY OF DOCUMENTS
The Mortgage Manager must promptly deliver to the Trustee all Mortgage
Documents which come into its possession, except to the extent that
the Trustee consents to the Mortgage Manager holding
14.
them, or delivers to the Mortgage Manager any Mortgage Documents, for
the purposes of enabling or facilitating the performance by the
Mortgage Manager of its obligations under this Agreement.
5.12 DIRECTIONS OF TRUST MANAGER
The Mortgage Manager must comply with all reasonable directions of the
Trustee or the Trust Manager as to the performance by the Mortgage
Manager of its obligations under this Agreement. In the absence of any
directions from the Trustee or the Trust Manager, the Mortgage Manager
must (upon and subject to the terms of this Agreement) exercise its
own judgment, skill and discretion in performing its obligations under
this Agreement.
5.13 BOND ISSUE CONFIRMATION CERTIFICATE
(a) (COPY OF SECURITISATION FUND BOND ISSUE DIRECTION): The Trust
Manager must deliver a copy of a Securitisation Fund Bond Issue
Direction to the Mortgage Manager within one Banking Day of
delivering the original to the Trustee under the Master Trust Deed.
(b) (BOND ISSUE CONFIRMATION CERTIFICATE): Within three Banking Days
after receiving a copy of a Securitisation Fund Bond Issue
Direction the Mortgage Manager must either:
(i) deliver to the Trust Manager a Bond Issue Confirmation
Certificate with respect to the Portfolio of Mortgages
specified in the relevant Securitisation Fund Bond Issue
Direction; or
(ii) if the Mortgage Manager is unable to give that Bond Issue
Confirmation Certificate, because any of the matters to be
certified is, with respect to that Portfolio of Mortgages,
not correct, the Mortgage Manager must give notice in writing
to the Trust Manager and Trustee specifying in reasonable
detail the reasons why the Mortgage Manager is unable to give
the Bond Issue Confirmation Certificate with respect to that
Portfolio of Mortgages.
15.
6. REPORTING
6.1 PERIODIC REPORTS
The Mortgage Manager must deliver to the Trust Manager the Periodic
Reports at the times and in the form required from time to time by the
Agreed Procedures.
6.2 FINANCIAL INFORMATION
The Mortgage Manager must deliver to the Trustee (and the Trust
Manager):
(a) promptly, and in any event within 5 months of the end of each of
its financial years its audited Financial Statements; and
(b) promptly, such other financial and other information as the Trustee
or the Trust Manager may from time to time reasonably request,
including information relating to:
(i) the performance by the Mortgage Manager of its obligations
under this Agreement
(ii) the Mortgages and any other Mortgage Documents;
(iii) the exercise by the Mortgage Manager of its rights under this
Agreement; and
(iv) the performance by the Mortgage Manager of its obligations
under this Agreement.
6.3 ADVERSE INFORMATION
The Mortgage Manager must notify the Trust Manager promptly upon
becoming aware of any event or circumstance which it reasonably
considers likely to have a material adverse effect upon the ability of
the Mortgage Manager to comply with its obligations under this
Agreement, or the volume or value of investment proposals which it is
likely to be able to make to the Trustee under clause 4 or the
business operations of the Mortgage Manager generally.
7. DEFAULT PROCEDURES
7.1 ADVISING OF DEFAULTS
The Mortgage Manager must promptly give notice to the Trust Manager
upon becoming aware of:
16.
(a) the failure by a Mortgagor to pay any Loan Instalment; or
(b) the occurrence of any other Event of Default under any Mortgage.
7.2 PROCEDURES ON DEFAULT
The Mortgage Manager must take such action following the occurrence of
an Event of Default, and enforce the Powers (including by taking legal
proceedings) in respect of any Defaulting Mortgage in such manner as:
(a) the Mortgage Manager reasonably considers necessary to:
(i) remedy that Event of Default;
(ii) recover the money secured by that Defaulting Mortgage; and
(iii) protect and preserve the rights of the Trustee as mortgagee
and the interests of Bondholders under the Trust Deed and
Security Trust Deed; and
(b) is required to ensure that any losses suffered in relation to that
Mortgage which are, or are required to be insured under a Mortgage
Insurance Policy are able to be claimed under that Mortgage
Insurance Policy.
7.3 MORTGAGE MANAGER TO COMPLY WITH DIRECTIONS
The Trustee or the Trust Manager may (but shall not be obliged to)
give directions and instructions to the Mortgage Manager as to the
action to be taken pursuant to clause 7.2. The Mortgage Manager must
comply with those directions and instructions.
7.4 MORTGAGE MANAGER MAY INCUR COSTS
Without limiting clauses 7.2 and 7.3, the Mortgage Manager may,
provided that it obtains any consents required under and complies
with the relevant Mortgage Insurance Policy, take any action which
the Trustee as mortgagee is entitled to take under a Defaulting
Mortgage (for example the carrying out of repairs to or the
completion of building works on the Property) and incur such
expenses as the Mortgage Manager reasonably considers necessary for
the purposes of doing so, including retaining solicitors, valuers,
builders and other appropriately
17.
qualified professionals or experts.
7.5 TRUSTEE AND TRUST MANAGER TO FACILITATE ENFORCEMENT
The Trustee and the Trust Manager must do all things which the
Mortgage Manager reasonably requests to enable the Mortgage Manager
to perform its obligations under this clause 7.
7.6 MORTGAGE INSURANCE CLAIMS
If the Property the subject of a Defaulting Mortgage is sold in
exercise of a power of sale or foreclosed upon (and at such other
times as directed by the Trust Manager), the Mortgage Manager must
promptly take all action available to it to claim any amount payable
under the Mortgage Insurance Policy relating to that Defaulting
Mortgage.
7.7 REPORTING OF ENFORCEMENT ACTION
The Mortgage Manager must keep the Trustee and the Trust Manager
promptly informed of all action taken by the Mortgage Manager under
this clause 7.
7.8 NOTIFICATION OF DISPUTE RESOLUTION PROCEDURES
The Mortgage Manager must notify any Mortgagor or prospective
Mortgagor with whom there is a dispute in relation to a Mortgage
Document or an application for a Loan (whether in relation to a
Defaulting Mortgage or otherwise), which is not settled promptly
between the Mortgage Manager and the Mortgagor, of the Dispute
Resolution Procedures.
8. PROPERTY INSURANCE
The Mortgage Manager must:
(a) ensure that the relevant Mortgagor takes out and maintains all
Property Insurances under the relevant Mortgage;
(b) ensure that the interest of the Trustee as mortgagee is noted on
all Property Insurances;
(c) if that Mortgagor does not pay any premiums payable in respect of
any Property Insurances or for any reason any of the Property
Insurances are cancelled, terminated or lapse, exercise the Power
under that Mortgage to pay those
18.
premiums or (as the case may be) to take out and maintain
Property Insurances in respect of that Mortgage and the Property
subject to it;
(d) promptly notify the Trust Manager on behalf of the Trustee if any
Property Insurance lapses without renewal or is cancelled or
terminated; and
(e) not settle or compound any claim under any Property Insurance
unless it has obtained the prior written approval of the Trustee or
the Trust Manager and must comply with any instructions given by
the Trustee or the Trust Manager with respect to the settlement or
conduct of any such claim.
9. REIMBURSEMENT OF MORTGAGE MANAGER
9.1 MORTGAGE MANAGER TO BEAR OWN COSTS
The Mortgage Manager must pay all costs and expenses of performing its
obligations under this Agreement, and is not entitled to reimbursement
or compensation from the Trustee or the Trust Manager except to the
extent expressly stated in this Agreement.
9.2 MORTGAGE MANAGER TO INDEMNIFY TRUSTEE FOR COSTS
The Mortgage Manager must indemnify the Trustee on demand for all
stamp duty, taxes, registration and similar fees and charges payable
on or in connection with any Secured Agreement, which are payable by
the relevant Mortgagor under that Secured Agreement, and which are not
paid by that Mortgagor.
9.3 REIMBURSEMENT OF MORTGAGE MANAGER
(a) The Trustee must reimburse the Mortgage Manager from money received
by the Trustee under clause 5.5 for all costs, expenses and
disbursements incurred in the performance of its obligations under
clauses 7, 8 and 9.2 and in the exercise of any Power:
(i) if such costs, expenses and disbursements are paid by the
Mortgagor in accordance with its obligations under a
Mortgage, from the proceeds of such payment; and
(ii) otherwise in accordance with provisions of that
19.
Mortgage providing for the order of application of money
received as a result of the exercise of a Power under that
Mortgage (as though such costs, expenses or disbursements
had been incurred by the Trustee as mortgagee).
(b) The Trustee must pay to the Mortgage Manager:
(i) the amount of any interest which the Trustee receives from
the relevant Mortgagor in respect of any amount which is
reimburseable to the Mortgage Manager under paragraph (a)(i)
above; and
(ii) interest on any amount reimburseable to the Mortgage Manager
under paragraph (a)(ii) above at the rate payable by the
relevant Mortgagor under the relevant Mortgage in accordance
with the provisions of that Mortgage providing for the order
of application of money received as a result of the exercise
of a Power under that Mortgage (as though such interest were
an Expense of the Trustee in enforcing that Mortgage).
10. REPRESENTATIONS AND WARRANTIES
10.1 REGARDING MORTGAGES
The Mortgage Manager represents and warrants to the Trustee and the
Trust Manager that except as disclosed to the Trust Manager on behalf
of itself and the Trustee in writing, and approved or waived by the
Trust Manager on or prior to the settlement of a Mortgage, the
following matters will be true and correct in all material respects in
relation to that Mortgage:
(a) the Mortgage Manager instructed an Approved Solicitor, in
accordance with clause 4 and the Agreed Procedures to act for the
Trustee in relation to that Mortgage;
(b) before or at the time of settlement of that Mortgage, the Approved
Solicitor instructed in relation to that Mortgage gave a
Solicitor's Certificate which complied with the Agreed Procedures;
(c) each Mortgage Document relating to that Mortgage is and will at all
times be, in all material respects, in the form required by
20.
the Agreed Procedures, and the Mortgage Manager will not agree to
any amendment, variation or waiver of any Mortgage Document
except as specifically permitted by and in accordance with this
Agreement or the Agreed Procedures;
(d) the Property is insured in accordance with the requirements of the
Mortgage;
(e) the Mortgage is covered by an Approved Mortgage Insurance Policy;
(f) there is no Encumbrance affecting the Property other than the
Mortgage;
(g) the Mortgagor is the beneficial owner of the Property and is or is
entitled to be registered as the proprietor or is the legal owner
of the Property;
(h) each Mortgage Document relating to that Mortgage constitutes valid,
binding and enforceable obligations of the Mortgagor and the other
parties to them (other than the Trustee and the Trust Manager);
(i) each Mortgage Document relating to that Mortgage has been, or will
be, within any applicable statutory time limit, fully stamped in
accordance with all applicable Laws, and (if required or able to be
registered) has been registered or is in registrable form, and
there are no impediments to its registration or continued
registration;
(j) the Mortgage is or will be upon registration, a registered mortgage
with first priority for all money stated to be secured by it;
(k) the Mortgagor's Application for Loan is substantially in the form
required by the Agreed Procedures, has been fully investigated by
the Mortgage Manager in accordance with the Agreed Procedures, and
the Mortgage Manager is satisfied that all statements and
information contained in it are correct in all material respects;
(l) in the case of a Mortgage entered into in any State or Territory of
the Commonwealth of Australia before the coming into force in that
State or Territory of the Uniform Consumer Credit Legislation, none
of the Mortgage Documents relating to
21.
that Mortgage is a Regulated Mortgage, as defined in Section 5 of
the Credit ▇▇▇ ▇▇▇▇ (NSW) or the corresponding legislation of any
other Australian jurisdiction;
(m) the Mortgage Manager is not aware of any circumstances relating to
the Mortgage, the Property, the Mortgagor or any Guarantor which
could reasonably be expected to cause a prudent investor to:
(i) regard the Mortgage as an unacceptable investment;
(ii) expect the Mortgagor to default under the Mortgage; or
(iii) diminish the value or marketability of the Property from that
stated in the Valuation;
(n) the Agreed Procedures have been fully complied with in relation to
that Mortgage; and
(o) to the best of the Mortgage Manager's knowledge, all
representations and warranties made by the Mortgagor and any
Guarantor in the Mortgage Documents relating to that Mortgage are
true.
10.2 REGARDING THE MORTGAGE MANAGER
The Mortgage Manager represents and warrants to the Trustee and the
Trust Manager:
(a) (LEGALLY BINDING OBLIGATION): this Agreement constitutes its valid
and legally binding obligations in accordance with its terms;
(b) (NO VIOLATION): the execution, delivery and performance of this
Agreement does not violate its Memorandum and Articles of
Association, any existing Law, or any document or agreement to
which it is a party or which is binding upon it or any of its
assets;
(c) (AUTHORISATIONS): all consents, licences, approvals and
authorisations of every government authority required to be
obtained by it in connection with the execution, delivery and
performance of this Agreement have been obtained and are valid and
subsisting;
(d) (DUE INCORPORATION): it is duly incorporated and has the
22.
corporate power to own its own property and to carry on its own
business as it is now being conducted; and
(e) (CORPORATE POWER): it has the power and has taken all corporate and
other action required, to enter into this Agreement and to
authorise the execution and delivery of this Agreement and the
performance of its obligations under it.
The representations and warranties contained in this clause 10.2 shall
be deemed to be repeated on each day until this Agreement is
terminated, by reference to the facts and circumstances then existing.
10.3 TRUSTEE'S RELIANCE ON REPRESENTATIONS AND WARRANTIES
The Mortgage Manager:
(a) acknowledges that:
(i) the Trustee and the Trust Manager enter into this Agreement;
and
(ii) the Trustee will enter into Mortgages and advance money on
the security of Mortgages,
in each case in reliance on the representations and warranties set
out in clauses 10.1 and 10.2; and
(b) agrees to indemnify the Trustee and the Trust Manager on demand for
all damages, claims, losses, costs and expenses which either of
them may suffer or incur as a result of or in connection with any
breach of those representations and warranties.
11. INDEMNITY
The Mortgage Manager must indemnify the Trustee and the Trust Manager
on demand for all damages, claims, losses, costs and expenses which
either of them may suffer or incur as a result (direct or indirect)
of:
(a) any negligence, fraud or breach of duty by the Mortgage Manager; or
(b) any breach by the Mortgage Manager of this Agreement; or
23.
(c) any breach by the Mortgage Manager of any representation and
warranty contained in this Agreement.
12. AGREED PROCEDURES
12.1 ACKNOWLEDGMENT
The Trust Manager has delivered to the Mortgage Manager a copy of the
Agreed Procedures in force at the date of this Agreement, and the
Mortgage Manager acknowledges having received that copy.
12.2 CHANGES TO AGREED PROCEDURES
The Trust Manager must from time to time give to the Mortgage Manager
a copy of any changes or proposed changes to the Agreed Procedures.
Any such change will become effective and binding upon the Mortgage
Manager on the date specified by the Trust Manager in writing at the
time it gives notification of the changes or proposed changes, which
must not be less than three Banking Days after the date of
notification. Until so effective, the Agreed Procedures as notified to
the Mortgage Manager most recently prior to that time shall continue
to be binding on the Mortgage Manager.
12.3 INCONSISTENCY
If there is any inconsistency between this Agreement and the Agreed
Procedures, the Agreed Procedures prevail to the extent of the
inconsistency.
13. MORTGAGE MANAGER'S FEES
13.1 SERVICING FEE
The Trust Manager must pay to the Mortgage Manager a servicing and
other fees as are from time to time agreed between them. The Mortgage
Manager acknowledges that the aggregate of the servicing and other
fees payable to it under this clause 13.1 and the fees payable to any
delegate of the Mortgage Manager must not exceed the fees payable to
the Trust Manager under or in respect of the Trust Deed in so far as
the Trust Manager's fee is calculated by reference to the Mortgages
from time to time held in the Funds.
13.2 OTHER MORTGAGE MANAGER FEES
The Mortgage Manager will charge such application and other fees to
24.
applicants for a Loan as the Trust Manager may from time to time
require. All such fees will belong to the Trustee and must be paid to
the Trustee by the Mortgage Manager in accordance with this Agreement.
14. TERMINATION
14.1 TERMINATION BY TRUSTEE
The Trust Manager on the Trustee's behalf may, subject to clause 14.4,
terminate this Agreement immediately, by notice in writing to the
Mortgage Manager if:
(a) the Mortgage Manager breaches any of its obligations under this
Agreement, and does not remedy that breach within 10 Banking Days
of a notice from the Trustee or the Trust Manager requiring the
same to be remedied; or
(b) any representation or warranty made by the Mortgage Manager in this
Agreement is or proves to be untrue in any material respect as
determined by the Trust Manager; or
(c) an Event of Insolvency occurs in relation to the Mortgage Manager.
14.2 TERMINATION BY MORTGAGE MANAGER
The Mortgage Manager may terminate this Agreement at any time by not
less than three months notice in writing to the Trust Manager and the
Trustee.
14.3 EFFECT OF TERMINATION
Upon termination of this Agreement, the Mortgage Manager must
immediately deliver to the Trustee or as the Trustee directs all
books, records, accounts, registers, computer files, documents and
records of any kind kept or brought into existence by the Mortgage
Manager under, for the purposes of or in connection with this
Agreement.
14.4 SURVIVAL OF OBLIGATIONS
The Mortgage Manager's obligations under clauses 5.6 and 5.8 will
survive termination of this Agreement.
25.
15. ASSIGNMENTS
15.1 BY MORTGAGE MANAGER
(a) (TO RELATED BODY CORPORATE): The Mortgage Manager may assign or
transfer its rights under this Agreement in whole but not in part
to a related body corporate (as that expression is defined in the
Corporations Law) of the Mortgage Manager provided that:-
(i) it first obtains the written consent of the Trustee and the
Trust Manager, such consent not to be unreasonably withheld
or delayed; and
(ii) if required by the Trust Manager, the Mortgage Manager
notifies all Mortgagors in writing of the assignment or
transfer, either as a condition of the Trust Manager's
consent, or within any period specified by the Trust Manager
when it gives its consent.
(b) (OTHERWISE): The Mortgage Manager must not assign, transfer or
dispose of all or any part of its rights under this Agreement
without the prior written consent of the Trustee and the Trust
Manager. The Trustee and the Trust Manager may grant or withhold
that consent in their absolute discretion.
15.2 BY TRUSTEE OR TRUST MANAGER
Each of the Trustee and the Trust Manager may assign and transfer its
rights under this Agreement to a person who succeeds it as Trustee or
Trust Manager (as the case may be) under the Trust Deed. The Mortgage
Manager must upon request by the Trustee execute such documents as the
Trustee or the Trust Manager may reasonably require at the cost of the
Trustee or the Trust Manager (as the case may be) to transfer to the
successor Trustee or Trust Manager (as the case may be) the rights and
obligations of the Trustee or the Trust Manager (as the case may be)
under this Agreement upon it ceasing to hold the office of Trustee or
Trust Manager (as the case may be) under the Trust Deed.
26.
16. NOTICES
Every notice, certificate, request, direction, demand or other
communication of any nature whatsoever required to be served, given or
made under or arising from this Agreement:
(a) shall be in writing in order to be valid;
(b) shall be deemed to have been duly served, given or made in relation
to a party if it is:
(i) delivered to the address of that party set out in
sub-paragraph (e) (or to such other address as may be
notified in writing by that party to the other parties from
time to time); or
(ii) posted by prepaid registered post to such address; or
(iii) sent by facsimile to the facsimile number set out in
sub-paragraph (e) (or to such other number as may be notified
in writing by that party to the other parties from time to
time);
(c) shall be sufficient if executed by the party giving, serving or
making the same or on its behalf by any Authorised Signatory of
such party;
(d) shall be deemed to be given, served or made:
(i) (in the case of prepaid registered post) within 2 Banking
Days of posting;
(ii) (in the case of facsimile) on receipt of a transmission
report confirming successful transmission; and
(iii) (in the case of delivery by hand) on delivery;
(e) the addresses and facsimile numbers for service of notices as
referred to in sub-paragraph (b) of this clause are as follows:
(i) where the Trustee is the recipient:
▇▇▇▇▇ ▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
Fax: (▇▇) ▇▇▇ ▇▇▇▇
Attention: Manager: Mortgage Securitisation
27.
(ii) where the Trust Manager is the recipient:
▇▇▇▇▇ ▇▇,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
Fax: (▇▇) ▇▇▇ ▇▇▇▇
Attention: A Wamsteker
(iii) where the Mortgage Manager is the recipient:
▇▇▇▇▇ ▇▇,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
Fax: (▇▇) ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ La'Brooy
17. THE TRUSTEE
17.1 TRUSTEE OF THE FUNDS
The parties acknowledge that the Trustee enters into this Agreement as
trustee for the Funds and not in any other capacity.
17.2 LIABILITY OF TRUSTEE
(a) For the purposes of this clause 17.2:
"OBLIGATIONS" means all obligations and liabilities of whatsoever
kind, undertaken or incurred by, or devolving upon, the Trustee
under or in respect of this Agreement or any deed, agreement or
other instrument collateral herewith or given or entered into
pursuant hereto.
"ASSETS" includes all assets, property and rights real or
personal of any nature whatsoever.
(b) The Trustee enters into this Agreement as trustee of the Funds and
in no other capacity. The parties other than the Trustee
acknowledge that the Obligations are incurred by the Trustee solely
in its capacity as trustee of the Funds.
(c) The Trustee will not be liable to pay or satisfy any Obligations
out of any Assets out of which the Trustee is not entitled to be
indemnified in respect of any liability incurred by it as trustee
of the Funds.
28.
(d) The parties other than the Trustee may enforce their rights against
the Trustee arising from non-performance of the Obligations only to
the extent of the Trustee's right of indemnity out of the Assets of
the Funds.
(e) If the parties other than the Trustee do not recover all money
owing to them arising from non-performance of the Obligations by
enforcing the rights referred to in paragraph (d), they may not
seek to recover the shortfall by:
(i) bringing proceedings against the Trustee in its personal
capacity; or
(ii) applying to have the Trustee wound up or proving in the
winding up of the Trustee unless another creditor has
initiated proceedings to wind up the Trustee.
(f) Except in the case of fraud, negligence, or wilful breach on the
part of the Trustee, each of the parties other than the Trustee
severally waives their rights, and releases the Trustee from any
personal liability whatsoever, in respect of any loss or damage:
(i) which any of them may suffer as a result of any:
(A) breach by the Trustee of its duties under this
Agreement; or
(B) non-performance by the Trustee of the Obligations; and
(ii) which cannot be paid or satisfied out of the Assets out of
which the Trustee is entitled to be indemnified in respect of
any liability incurred by it as trustee of the Funds.
(g) Nothing in clauses (d) or (e) above is to be taken as derogating
from the limitation of the Trustee's liability contained in clauses
(c) and (f).
18. MISCELLANEOUS
18.1 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of New South Wales.
29.
18.2 JURISDICTION
(a) Each of the Trustee, the Trust Manager and the Mortgage Manager
irrevocably submits to and accepts, generally and unconditionally,
the non-exclusive jurisdiction of the courts and appellate courts
of the State of New South Wales with respect to any legal action or
proceedings which may be brought at any time relating in any way to
this Agreement.
(b) Each of the Trustee, the Trust Manager and the Mortgage Manager
irrevocably waives any objection it may now or in the future have
to the venue of any such action or proceedings and any claim it may
now or in the future have that any such action or proceeding has
been brought in an inconvenient forum.
18.3 SEVERABILITY OF PROVISIONS
In the event that any provision of this Agreement is prohibited or
unenforceable in any jurisdiction such provision shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Deed or affecting the validity or enforceability of such provision in
any other jurisdiction.
18.4 COUNTERPARTS
This Agreement may be executed in any number of counterparts and all
of such counterparts taken together shall be deemed to constitute one
and the same instrument.
30.
SCHEDULE
BOND ISSUE CONFIRMATION CERTIFICATE
Perpetual Trustees Australia Limited
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: [ ]
Dear Sirs
We refer to:
(a) the Mortgage Origination and Management Agreement (the "AGREEMENT")
dated [ ] 1994 made between Perpetual Trustees Australia Limited,
Superannuation Members' Home Loans Limited and ourselves; and
(b) the Securitisation Fund Bond Issue Direction dated [ ], a copy of which
has been served upon us by the Trust Manager pursuant to clause 15.13 of
the Agreement.
Words and expressions which are defined in the Agreement have the same meanings
when used in this Certificate.
We certify with respect to each Mortgage comprised in the Portfolio of Mortgages
specified in the Securitisation Fund Bond Issue Direction that:
1 On the date of its settlement, to the best of our knowledge and belief,
all of the representations and warranties made by us pursuant to clause
10.1 of the Agreement were true and correct by reference to the fact and
circumstances then existing.
2 Nothing has come to our actual attention which would lead us to believe
that any of those representations and warranties, or any other
warranties, statements, certificates or other information provided to us
by the relevant Approved Solicitor, the relevant Approved Valuer or any
other person prior to the settlement of that Mortgage were incorrect,
untrue or misleading in any material respect at the time they were made
or given.
3 Nothing has come to our actual attention which would lead us to
31.
believe that there has been any material change in respect of any of
the matters referred to in any of those representations, warranties,
statements, certificates or other information which would adversely
affect the benefit of the security provided by the Mortgage or its
coverage under the relevant Approved Mortgage Insurance Policy or
would allow the insurer under the relevant Approved Mortgage Insurance
Policy to reduce or avoid a claim under the terms of the Mortgage
Insurance Policy or at law.
4 Nothing has come to our actual attention which would constitute a breach
of the terms of the relevant Approved Mortgage Insurance Policy by the
Trustee, the Trust Manager or ourselves.
5 The Mortgage is not in arrears, or if it is in arrears, it will not be
more than 30 days in arrears as at the Bond Issue Date.
6 To the best of our knowledge and belief no other material Event of
Default has occurred with respect to the Mortgage.
7 The Trustee is entitled to enforce in its own name the Mortgage and to
the extent of its interest and the interest of the Mortgagor under any
policy of Property Insurance in relation to the Property, any such
policy of Property Insurance.
8 The Mortgage and, if necessary an Collateral Security, have been
stamped, or have been lodged for stamping accompanied by a bank cheque,
for the full amount secured thereby.
9 The Mortgage has been duly registered by, or is in registrable form and
will be lodged for registration forthwith upon its stamping with, the
Land Titles Office in the State or Territory in which the Property is
situated and, if necessary, any Collateral Security has been registered
or is in registrable form and will be lodged for registration forthwith
upon its stamping.
We have made no specific enquiry or investigation of any of the matters referred
to above, except for a review of the records maintained by us with respect to
the Mortgages comprised in the Portfolio of Mortgages maintained by us in
accordance with the Agreement.
Yours faithfully
32.
......................................... ..................................
Authorised Signatory Authorised Signatory
National Mutual Property Services National Mutual Property Services
(Aust.) Pty. Limited (Aust.) Pty. Limited
33.
EXECUTED as an Agreement.
THE COMMON SEAL of )
PERPETUAL TRUSTEES )
AUSTRALIA LIMITED, ACN 000 )
431 827, was affixed in accordance )
with its Articles of Association in the )
presence of:
/s/ ▇▇▇▇▇ ▇▇▇▇▇ White /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
............................................. .................................
(Signature of Secretary/Director) (Signature of Director)
▇▇▇▇▇ ▇▇▇▇▇ White ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
............................................. .................................
(Name of Secretary/Director in Full) (Name of Director in Full)
SIGNED for and on behalf of ) /s/ A. Wamsterer
SUPERANNUATION MEMBERS' HOME ) .................................
LOANS LIMITED by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ) (Signature)
Wamsterer its Attorney under a )
Power of Attorney dated and who )
declares that he has not received )
any notice of the revocation of )
such Power of Attorney in the )
presence of:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
.............................................
(Signature of Witness)
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
.............................................
(Name of Witness in Full)
34.
(Signature)
SIGNED for and on behalf of ) /s/ A. Wamsterer
NATIONAL MUTUAL PROPERTY SERVICES ) ....................................
(AUST.) PTY LIMITED by its ) (Signature)
Attorney under a Power of )
Attorney ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ )
Wamsterer dated 1 July 1994 and who )
declares that he has not received )
any notice of the revocation of )
such Power of Attorney in the )
presence of: )
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
.............................................
(Signature of Witness)
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
.............................................
(Name of Witness in Full)