Exhibit 10.1
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National RMBS Trusts
Servicing Agreement
Date: [ ]
Parties: NATIONAL GLOBAL MBS MANAGER PTY LTD (ABN 36 102
668 226) having an office at ▇▇▇▇▇ ▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
("Global Trust Manager")
PERPETUAL TRUSTEE COMPANY LIMITED (ABN 42 000
001 007) having its registered office at ▇▇▇▇▇
▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ("Issuer
Trustee")
NATIONAL AUSTRALIA BANK LIMITED (ABN 12 004 044
937) having its registered office at ▇▇▇▇▇ ▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
("Servicer")
Operative provisions:
Part A - Interpretation
1 Definitions and interpretation
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Definitions
1.1 The following terms have the meaning set out
below unless the context otherwise requires:
Definitions Schedule means the deed entitled
"National RMBS Trusts Definitions Schedule"
dated [ ] and made between the companies
described in schedule 1 to that deed (as amended
from time to time).
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 and
the Supplemental Deed for that Trust.
Interpretation
1.2 Except to the extent to which words and phrases
are otherwise defined in this agreement, words
and phrases defined in the Definitions Schedule
shall bear the same meaning in this agreement.
In the event of any inconsistency between a
definition in this agreement and a definition in
the Definitions Schedule, the definitions in
this agreement will prevail. Any amendment to
the Definitions Schedule will only apply to this
agreement if that amendment has been made in
accordance with this agreement.
1.3 Clauses 1.2 to 1.5 (inclusive) of the
Definitions Schedule are incorporated in this
agreement as though they were set out in full in
it with references to "deed" being construed as
references to "agreement".
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1.4 By executing this agreement, the parties agree
that terms used in any Transaction Document have
the meaning given to them in the Definitions
Schedule.
Part B - Servicing
2 Servicing of Mortgage Loans and General Servicer Covenants
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Appointment of Servicer
2.1 The Issuer Trustee appoints the Servicer to act
as servicer and custodian to:
(a) service and administer the Mortgage
Loans of each Relevant Trust; and
(b) to hold any Mortgage Title Documents
in respect of the Mortgage Loans
forming the Assets of the Relevant
Trust as custodian on behalf of the
Issuer Trustee,
upon and subject to the terms of this agreement
and the Supplemental Deed for the Relevant
Trust. By executing the relevant Supplemental
Deed, the Servicer shall be taken to have
accepted that appointment, and agreed to perform
the role of Servicer in relation to that
Relevant Trust in accordance with this
agreement.
2.2 The appointment of the Servicer under clause 2.1
in respect of a Relevant Trust applies in
relation to the Mortgage Loans which are
acquired by the Issuer Trustee in accordance
with a Secondary Sale Agreement and a Secondary
Offer to Sell in respect of that Relevant Trust.
The Servicer's actions in servicing the Mortgage
Loans according to the relevant Servicing
Procedures are binding on the Issuer Trustee.
The Servicer must hold the Mortgage Title
Documents as custodian on behalf of the Issuer
Trustee until a Title Perfection Event or
Servicer Termination Event occurs.
Servicer's Obligations
2.3 The Servicer must service the Mortgage Loans of
each Relevant Trust and otherwise carry out and
perform its duties and obligations under the
Transaction Documents in respect of the Mortgage
Loans of each Relevant Trust:
(a) in accordance with all applicable
laws;
(b) in accordance with the provisions of
this agreement;
(c) with the same degree of diligence and
care expected of an appropriately
qualified and prudent servicer of
similar financial products and
custodian of documents; and
(d) subject to paragraphs (a), (b) and (c)
above, in accordance with the
Servicing Procedures, which are under
regular review and may change from
time to time as a result of business
changes, or legislative and regulatory
changes.
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No other provision of this clause 2 limits the
obligations of the Servicer in this clause 2.3.
2.4 In performing its duties, the Servicer must
comply with all reasonable instructions given by
the Issuer Trustee or the Global Trust Manager
(on behalf of the Issuer Trustee).
2.5 Except in accordance with the terms of the
relevant Supplemental Deed (whether or not at
the direction of the Global Trust Manager),
neither the Issuer Trustee nor the Global Trust
Manager is entitled to exercise any servicing
functions in connection with any Mortgage Loan
unless it is acting as Servicer.
Servicer agrees to perform duties
2.6 The Servicer agrees to carry out and perform its
duties and obligations contained in this
agreement in respect of the Mortgage Loans of a
Relevant Trust until the earlier of:
(a) the date of its retirement or removal
as Servicer in accordance with this
agreement; and
(b) the date upon which the Relevant Trust
is terminated.
Powers
2.7 The Servicer has the express power during the
term of its appointment in respect of each
Relevant Trust:
(a) to waive any fees and break costs
which may be collected in the ordinary
course of servicing the Mortgage
Loans, or to arrange the rescheduling
of interest due and unpaid following a
default under any Mortgage Loans;
(b) to waive any right in respect of the
Mortgage Loans in the ordinary course
of servicing the Mortgage Loans,
including according to its normal
collection procedures; and
(c) to extend the maturity date of a
Housing Loan beyond 30 years from the
date of origination when required to
do so by law or a Governmental Agency,
regardless of whether the extension
may have an Adverse Effect.
General Servicer covenants
2.8 The Servicer covenants with the Issuer Trustee
and the Global Trust Manager that it will at all
times during the term of its appointment in
respect of each Relevant Trust:
(a) if directed by the Issuer Trustee
following a Title Perfection Event,
promptly take action to protect the
Issuer Trustee's interest in, and
title to, the Mortgage Loans in the
Mortgage Portfolio;
(b) take such action as is required to
protect or enforce the terms of any
Mortgage Loan forming part of the
Assets of the Relevant Trust or
otherwise exercise any rights
conferred under
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documentation or at law in relation to
the Mortgage Loan and take such action
and incur such expenses as are
necessary for such protection,
enforcement or exercise of rights
(including legal action for the
recovery of damages, whether in
relation to the Mortgage Loan or the
performance by any party of its duties
and obligations under the Transaction
Documents for the Relevant Trust) to
the extent it determines to be
appropriate;
(c) (if applicable) if the Global Trust
Manager is obliged to direct the
Servicer to set the interest rate
charged (if that rate is a variable
rate) on or any fees payable in
respect of each Housing Loan of the
Relevant Trust under the relevant
Supplemental Deed, then the Servicer
will comply with such direction;
(d) prepare and collate all reasonably
necessary performance statistics of
the Mortgage Loans for the Relevant
Trust;
(e) provide to the Issuer Trustee and the
Global Trust Manager promptly from
time to time such information,
documents, records, reports or other
information relating to the Mortgage
Loans of the Relevant Trust or the
operations of the Servicer as may be
reasonably requested by either of them
and upon reasonable notice and at
reasonable times permit the Issuer
Trustee to inspect the data and
records in relation to the Relevant
Trust and the Loan Agreements,
Mortgages and Mortgage Title
Documents;
(f) subject to the terms of the relevant
Supplemental Deed, on behalf of the
Issuer Trustee, make reasonable
efforts to collect all Collections
received by it in respect of each
Mortgage Loan and each Mortgage
Insurance Policy of the Relevant Trust
and remit any such Collections
received by the Servicer to the
relevant Collections Account on or
before the Payment Date relating to
that Collection Period in the manner
required by the relevant Supplemental
Deed;
(g) maintain any loan account in respect
of any Mortgage Loan of the Relevant
Trust and give all notices, documents
or statements required to be given
under the Servicing Procedures to the
relevant Debtor;
(h) with respect to any Mortgage Insurance
Policy:
(i) promptly prepare and make
claims under the Mortgage
Insurance Policy when it or
the Issuer Trustee is
entitled to do so under the
terms of the Mortgage
Insurance Policy or under
the terms of the Transaction
Documents, as the case may
be, and notify the Global
Trust Manager when each
claim of this type is made;
(ii) not, without the consent of
the Issuer Trustee, do
anything which could
reasonably be expected to
prejudicially affect or
limit its rights or the
rights of the Issuer Trustee
under, or in respect of, the
Mortgage
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Insurance Policy to the
extent those rights
relate to those Mortgage
Loans;
(iii) comply with, and to the
extent it is able ensure
that, all requirements and
conditions of the Mortgage
Insurance Policy are
complied with; and
(iv) take any action that it is
required to take under the
Servicing Procedures to
ensure that the Mortgage
Insurance Policy is in force
at all times after the date
of this agreement;
(i) not, without the consent of the
Security Trustee, consent to the
creation or existence of a Security
Interest in the Mortgage Loans of the
Relevant Trust to a third party which
ranks pari passu or before the
interest of the Security Trustee or
allow the creation or existence of any
other Security Interest in the
Mortgage Loans, unless priority
arrangements are entered into with the
third party under which the third
party acknowledges that the Security
Trustee's Security Interest in the
relevant Mortgage Loan ranks ahead in
priority to the third party's Security
Interest on enforcement for an amount
not less than the Outstanding
Principal Balance of the relevant
Housing Loan plus any additional
amount the Servicer determines
according to the Servicer's Servicing
Procedures manual or its ordinary
course of business;
(j) electronically identify all Mortgage
Loans of the Relevant Trust in its
electronic database in order to
identify the Collections and other
relevant cashflows in respect of the
Mortgage Loans;
(k) notify the Issuer Trustee, each
Current Rating Agency and the Global
Trust Manager of:
(i) the occurrence of any event
which it reasonably believes
is likely to have a Material
Adverse Effect;
(ii) the occurrence of a Servicer
Termination Event;
(iii) the occurrence of anything
else which the Global Trust
Manager reasonably requires
regarding any proposed
modification to any Mortgage
Loan; and
(iv) any material breach of the
Servicing Procedures by the
Servicer in relation to the
servicing of the Mortgage
Loans of the Relevant Trust,
promptly after becoming aware of such
event;
(l) perform any obligations imposed upon
the Servicer under a relevant
Supplemental Deed or as otherwise
agreed between the Issuer Trustee, the
Global Trust Manager and the Servicer;
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(m) maintain in effect all qualifications,
consents, licences, permits,
approvals, exemptions, filings and
registrations as may be required under
any applicable law in order to
properly service the Mortgage Loans
and to perform and comply with its
obligations under this agreement;
(n) subject to the terms of the relevant
Supplemental Deed, continue to act in
its capacity as Servicer of a Relevant
Trust after a Title Perfection Event
has occurred in respect of that
Relevant Trust; and
(o) not, except as required by law,
release a Debtor or discharge any
Mortgage Loan where it would have an
Adverse Effect.
Servicer's Statement
2.9 Prior to each Determination Date, in respect of
each Relevant Trust, the Servicer will prepare
and submit to the Global Trust Manager a
statement in the form agreed from time to time
between the Global Trust Manager and the
Servicer ("Servicer's Statement").
Provision of information
2.10 The Servicer may, on behalf of the Issuer
Trustee, provide information in relation to
Debtors and Security Providers (including,
without limitation, information which may be
subject to statutory or general law duties of
confidentiality or privacy) to other persons for
the purpose of the Servicer fulfilling its
obligations as Servicer or the obligations of
the Issuer Trustee in relation to the Mortgage
Loans.
Proposed amendments to Servicing Procedures
2.11 The Servicer must deliver copies of all proposed
material amendments to the Servicing Procedures
which relate to the Servicer's credit and risk
policy in respect of the Mortgage Loans then
comprising Assets of a Relevant Trust to the
Current Rating Agencies, the Issuer Trustee and
the Global Trust Manager at least 10 Business
Days prior to the date the changes are intended
to take effect. The adoption of those amendments
by the Servicer takes effect upon the earlier to
occur of the following (or if the earlier to
occur of the following occurs before the
proposed date for the changes to take effect,
then on the proposed date for the changes to
take effect):
(a) (Current Rating Agencies
confirmation): the Current Rating
Agencies confirm in writing that the
adoption of those amendments will not
result in an Adverse Rating Effect;
and
(b) (10 Business Days after delivery): the
date being 10 Business Days after the
delivery of the amendments to the
Current Rating Agencies, unless the
Servicer has received notice from a
Current Rating Agency during that
period of its intention not to confirm
in writing that the adoption of those
amendments will not result in a
reduction, qualification or withdrawal
of the credit ratings then assigned by
them to the Notes of the Relevant
Trust.
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Delegation by the Servicer
2.12 The Servicer has the power to delegate or subcontract in
relation to some or all of its obligations under this
agreement. Despite any delegation, the Servicer remains
liable for the servicing of the Mortgage Loans in respect
of a Relevant Trust in accordance with the Transaction
Documents.
2.13 The Servicer may appoint a person as its agent to hold
Mortgage Title Documents. The Servicer will be liable for
the acts or omissions of any such agent.
Adverse Effect
2.14 In performing any services under this agreement the
Servicer will consider whether its performance of these
services does or does not have an Adverse Effect. The
Servicer may ask the Issuer Trustee or the Global Trust
Manager if any action or inaction on its part is
reasonably likely to, or will, have an Adverse Effect, and
may rely upon any statement by the Issuer Trustee or the
Global Trust Manager to that effect. 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 Issuer
Trustee or the Global Trust Manager that the action or
inaction is not reasonably likely to, or will not have, an
Adverse Effect.
3 Servicer Termination Event and retirement of Servicer
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Servicer Termination Event
3.1 A Servicer Termination Event occurs in respect of a
Relevant Trust if:
(a) the Servicer fails to remit, or pay, any amount
due by it in respect of that Relevant Trust in
accordance with the Transaction Documents for
that Relevant Trust within 10 Business Days of
receipt of a notice from either the Issuer
Trustee or the Global Trust Manager to do so,
except where that amount is subject to a good
faith dispute between the Servicer, the Issuer
Trustee or the Global Trust Manager;
(b) an Insolvency Event occurs in respect of the
Servicer;
(c) the Servicer fails to observe or perform any
term, covenant, condition or obligation imposed
on it under the Transaction Documents in respect
of the Relevant Trust (other than those referred
to in clause 3.1(a)), where such failure has
had, or if continued, will have an Adverse
Effect in respect of the Relevant Trust and
continues unremedied for a period of 30 days
after a notice is delivered to the Servicer by
the Issuer Trustee or the Global Trust Manager
(or such longer period as may be agreed between
the Servicer and the Issuer Trustee);
(d) any representation, warranty or certification
made by the Servicer is incorrect when made and
is not waived by the Issuer Trustee or remedied
to the Issuer Trustee's reasonable satisfaction
within 90 days after notice from the Issuer
Trustee
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and the Issuer Trustee determines that breach
would have an Adverse Effect in respect of the
Relevant Trust; and
(e) it becomes unlawful for the Servicer to perform
the services under this agreement in respect of
the Relevant Trust.
The Issuer Trustee may at its discretion waive
any Servicer Termination Event in respect of a
Relevant Trust. The Global Trust Manager must
notify the Issuer Trustee upon the Global Trust
Manager becoming actually aware of any Servicer
Termination Event in respect of a Relevant
Trust.
Termination of Servicing Agreement
3.2 This agreement will terminate in respect of a Relevant
Trust on the earlier of:
(a) the date on which this agreement is terminated
by the Issuer Trustee if a Servicer Termination
Event occurs in respect of that Relevant Trust;
(b) the date which is 1 month after the Notes in
relation to that Relevant Trust have been
redeemed in full under the Transaction Documents
for that Relevant Trust and the Issuer Trustee
ceases to have any obligation to any creditor in
relation to that Relevant Trust;
(c) the date on which the Issuer Trustee replaces
the Servicer with an eligible successor servicer
pursuant to this agreement in respect of that
Relevant Trust; and
(d) the date on which the Servicer is replaced due
to its resignation or removal pursuant to this
agreement in respect of that Relevant Trust.
Termination of Servicer's appointment and transfer of servicing obligations
3.3 Upon the occurrence of a Servicer Termination Event in
respect of a Relevant Trust, the Issuer Trustee must
immediately by notice to the Servicer, the Global Trust
Manager, the Seller and the Current Rating Agencies remove
the Servicer as servicer in respect of the Relevant Trust
under the Transaction Documents, terminate immediately all
of the Servicer's rights and obligations under the
Transaction Documents (including in relation to any
Mortgage Loans) for the Relevant Trust and terminate this
agreement in respect of the Relevant Trust.
Voluntary Retirement of Servicer
3.4 The Servicer must give to the Issuer Trustee, the Current
Rating Agencies, the Seller and the Global Trust Manager 3
months' notice in writing of its intention to retire as
Servicer in respect of a Relevant Trust or such lesser
time as the Servicer and the Issuer Trustee agree.
Appointment of Substitute Servicer
3.5 Upon the removal or retirement of the Servicer, the
Servicer, the Issuer Trustee and the Global Trust Manager
must use all reasonable endeavours to appoint a
replacement servicer (in this clause 3, the
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"Substitute Servicer") provided that the appointment of
such Substitute Servicer will not result in an Adverse
Effect.
3.6 The purported appointment of a Substitute Servicer has no
effect until the Substitute Servicer executes an agreement
with the Issuer Trustee and the Global Trust Manager under
which it covenants to act as Servicer in accordance with
this agreement and the other Transaction Documents.
Issuer Trustee act as Servicer
3.7 Until the appointment of the Substitute Servicer is
complete or a Substitute Servicer has not been appointed
by the expiration of the 3 months notice period referred
to in clause 3.4, the Issuer Trustee must act as Servicer.
The Issuer Trustee is entitled to receive the fee payable
in accordance with clause 6.1 for the period during which
the Issuer Trustee so acts.
Issuer Trustee may give discharges
3.8 The Issuer Trustee may settle with a Servicer the amount
of any sums payable by that Servicer to the Issuer Trustee
or by the Issuer Trustee to that Servicer, in either case
in respect of one or more Relevant Trusts, and may give
to, or accept from, that Servicer a discharge in respect
of those sums which will be conclusive and binding as
between the Issuer Trustee and that Servicer, as between
that Servicer and the Unitholders and as between the
Servicer and the relevant Secured Creditors.
Servicer may accept payment
3.9 A Servicer may accept a payment or benefit in connection
with its retirement or removal from the Substitute
Servicer. A Servicer is also entitled to receive payments
or benefits which have accrued to that Servicer under this
agreement prior to the date of that Servicer's retirement
or removal from office.
Servicer and Global Trust Manager to provide full co-operation
3.10 The Servicer and the Global Trust Manager agree to provide
their full co-operation in the event of a transfer of the
functions of the Servicer. Subject to all applicable
privacy legislation, the Servicer and the Global Trust
Manager must provide the Substitute Servicer with copies
of all paper and electronic files, information and other
materials which the Global Trust Manager has retained and
has in its possession as the Issuer Trustee or the
Substitute Servicer may reasonably request as soon as
practicable (and, in any event within ten Business Days)
after the removal or retirement of the Servicer in
accordance with this clause.
Release
3.11 When it retires or is removed, the Servicer is released
from all obligations in relation to each Relevant Trust
arising after the date of its retirement or removal
becoming effective, other than its obligations under
clause 3.10.
Title Perfection Event
3.12 Subject to the terms of the relevant Supplemental Deed and
this agreement, the Servicer will continue to act in its
capacity as Servicer of
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a Relevant Trust after a Title Perfection Event has
occurred in respect of that Relevant Trust.
4 Custodian
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Standard
4.1 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 Issuer Trustee each Mortgage
Title Document that it may receive on behalf of
the Issuer Trustee pursuant to a Transaction
Document in accordance with its standard
safe-keeping practices and in the same manner
and to the same extent as it holds its own
documents;
(b) ensure that each Mortgage Title Document is
capable of identification and is kept in a
separate file in secure premises and held
separate from any other documents held by the
Servicer for another Trust or otherwise;
(c) maintain a record of the physical movement of
the relevant documents; and
(d) ensure that it is capable of locating security
packets containing the relevant documents.
Information Indemnity
4.2 If the Servicer:
(a) fails to supply adequate information; or
(b) supplies inaccurate or incomplete information,
in any Servicer's Statement or any computer files
delivered together with a Servicer's Statement and as a
result the Issuer Trustee is unable (when entitled to do
so under this agreement and the Master Trust Deed) to
lodge and register Transfers upon the occurrence of a
Title Perfection Event, then the Servicer indemnifies the
Issuer Trustee for all actions, loss, damage, costs,
charges and expenses suffered as a result.
Auditor review
4.3 The Global Trust Manager must retain the Auditor of the
Relevant Trust to conduct periodic reviews (at the
intervals determined in accordance with clause 4.6) in
respect of the Servicer's role as custodian under this
agreement. The Auditor must review:
(a) the custodial procedures adopted by the
Servicer; and
(b) the accuracy of information in respect of the
Mortgage Loans contained in the most recent
Servicer's Statement or on the computer diskette
accompanying the most recent Servicer's
Statement.
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4.4
(a) In respect of the review referred to in clause
4.3(a), the Global Trust Manager must instruct
the Auditor of the Relevant Trust that its
review should consist of reporting on whether:
(i) the Mortgage Loans forming part of the
Assets of the Relevant Trust are
capable of identification and are
distinguishable from the other assets
of the Servicer;
(ii) controls exist such that the Mortgage
Title Documents relating to such
Mortgage Loans may not be removed or
tampered with except with appropriate
authorisation; and
(iii) an appropriate tracking system is in
place and such that the location of
the security packages containing the
Mortgage Title Documents in respect of
the Mortgage Loans of the Relevant
Trust can be detected at any time.
(b) In respect of the review referred to in clause
4.3(b), the Global Trust Manager must instruct
the Auditor of the Relevant Trust to review a
sample of security packets containing the
Mortgage Title Documents in respect of the
Mortgage Loans then forming part of the Assets
of the Relevant Trust to determine whether they
contain the following:
(i) an original counterpart of the
corresponding Mortgage and each
Collateral Security; and
(ii) the certificate of title (if any) in
respect of the Land the subject of the
Mortgage.
If such security packets do not contain any of
the foregoing, the Auditor must determine if
there is any adequate explanation regarding the
documents not in the security packets or whether
the security packets or the Servicer's records
indicate the location of the missing documents.
The Global Trust Manager must instruct the
Auditor to confirm (after having conducted the
above review) the accuracy of the information in
respect of the Mortgage Loans contained in the
Servicer's Statement and the computer diskette
referred to in clause 4.3.
Document Custody Audit Report
4.5 The Global Trust Manager must instruct the Auditor of the
Relevant Trust to provide a document custody audit report
("Document Custody Audit Report") to the Issuer Trustee in
which the Auditor, based on its reviews referred to in
clause 4.3, specifies a grade of the overall custodial
performance by the Servicer, based on the following
grading system:
(a) good - all control procedures and accuracy of
information in respect of Mortgage Loans testing
completed without exception;
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(b) satisfactory - minor exceptions noted;
(c) improvement requirement:
(i) 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/or
(ii) testing of the information in respect
of Mortgage Loans identified a number
of minor exceptions which are the
result of non-compliance with the
control system; or
(d) adverse - major deficiencies in internal
controls were identified. Cannot rely on the
integrity of the information in respect of
Mortgage Loans in the Servicer's Statement.
Timing of Document Custody Audit Reports
4.6 The Global Trust Manager must instruct the Auditor of the
Relevant Trust to prepare a Document Custody Audit Report
every year after the first Closing Date (or such other
period as may be agreed by the Global Trust Manager, the
Issuer Trustee and the Current Rating Agency). The Global
Trust Manager must require the Auditor to deliver a copy
of each such Document Custody Audit Report to the Global
Trust Manager and the Servicer.
Adverse Document Custody Audit Report
4.7 If the Auditor issues a Document Custody Audit Report
which has a finding of "adverse" in relation to the
Servicer's custodial procedures, identification of
documents, security and tracking of systems, the Servicer
must notify the Australian Prudential Regulatory Authority
of such report and the Global Trust Manager must instruct
the Auditor to conduct a further Document Custody Audit
Report no sooner than 1 month but no later than 2 months
after the date of receipt by the Global Trust Manager of
the "adverse" Document Custody Audit Report. The Global
Trust Manager must instruct the Auditor to deliver the
further Document Custody Audit Report to the Issuer
Trustee, with a copy to the Global Trust Manager and the
Servicer. The Servicer must then forward a copy of the
further Document Custody Audit Report to the Australian
Prudential Regulatory Authority (and confirm in writing to
the Global Trust Manager and the Issuer Trustee that it
has done so).
Custody Transfer Event
4.8 The Issuer Trustee may terminate the Servicer's
appointment as custodian if any of the following occurs:
(a) the Servicer has not complied with the
requirements of this agreement to the
satisfaction of the Auditor and a further
Document Custody Audit Report pursuant to clause
4.7 is "adverse";
(b) the long-term rating of the Servicer is
downgraded below the following rating levels for
each Relevant Trust:
(i) "BBB" by S&P;
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(ii) "BBB" by Fitch; or
(iii) "Baa2" by ▇▇▇▇▇'▇;
(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;
or
(d) a Servicer Termination Event has occurred and
continues to exist.
The Issuer Trustee must immediately upon
becoming actually aware of the occurrence of any
of the events listed in this clause deliver a
notice to the Servicer of the occurrence of the
relevant event. Upon receipt of such notice the
Servicer must transfer custody of the Mortgage
Title Documents relating to the Mortgage Loans
then forming part of the Assets of the Relevant
Trust held by it to the Issuer Trustee or
another custodian nominated by the Issuer
Trustee and approved by the Global Trust
Manager. If the Servicer has not done so within
10 Business Days of the date of termination of
this agreement or such longer period as the
Issuer Trustee in its reasonable discretion
permits, the Issuer Trustee may, in such
circumstances, commence legal proceedings to
obtain possession of the Mortgage Title
Documents or enter into the premises of the
Servicer or its agents at which the Mortgage
Title Documents are stored and take away from
such premises the Mortgage Title Documents
relating to the Mortgage Loans then forming part
of the Assets of the Relevant Trust.
Subject to clause 4.9, this requirement will be
treated as being satisfied if, within 7 days of
the above notice being received, all Mortgage
Title Documents in relation to at least 90% (by
number) of the Mortgage Loans are delivered to
the Issuer Trustee.
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Exceptions
4.9 The obligations to deliver Mortgage Title Documents under
this clause do not extend to such documents which the
Servicer can prove, to the reasonable satisfaction of the
Issuer Trustee, are deposited with a solicitor or title
insurer (acting on behalf of the Servicer), a land titles
office, a stamp duties office or any other Governmental
Agency. The Servicer must provide a list of such documents
to the Issuer Trustee together with any which have been
lost within 10 Business Days of the above notice having
been received by it. In respect of Mortgage Title
Documents that are so deposited, the Servicer must deliver
these to the Issuer Trustee immediately upon receipt from
the solicitor, title insurer or relevant office and, in
respect of Mortgage Title Documents that are lost, the
Servicer must take all reasonable steps satisfactory to
the Issuer Trustee to promptly replace such Mortgage Title
Documents.
Failure to comply
4.10 If the Servicer does not comply with the requirements of
clause 4.8 within the specified time limit, the Issuer
Trustee must to the extent to which it has information
available to it at the time:
(a) execute and lodge caveats in respect of all Land
or Mortgages (as the case may be) for which all
Mortgage Title Documents in respect of the
Relevant Trust have not been delivered; and
(b) initiate legal proceedings to take possession of
the Mortgage Title Documents in respect of the
Relevant Trust that have not been delivered,
and to the extent that the Issuer Trustee cannot do so, as
a result of not having information available to it to do
so, the indemnity in clause 4.2 applies.
Without limiting any right of indemnity which the Issuer
Trustee may have from the Servicer, the Issuer Trustee
must discontinue any legal proceedings commenced in
accordance with this clause if the relevant Mortgage Title
Documents are delivered to the Issuer Trustee.
Emergency Document transfer
4.11 If a Title Perfection Event occurs and is notified to the
Servicer in accordance with this agreement then, subject
to clause 4.12, the Servicer must as soon as practicable
after receipt of such notice, transfer custody of the
Mortgage Title Documents relating to the Mortgage Loans
then forming part of the Assets of the Relevant Trust held
by it, to the Issuer Trustee or to another custodian
nominated by the Issuer Trustee and approved by the Global
Trust Manager. The Issuer Trustee may, in such
circumstances, commence legal proceedings to obtain
possession of the Mortgage Title Documents or enter into
the premises of the Servicer or its agents at which the
Mortgage Title Documents are stored and take away from
such premises the Mortgage Title Documents relating to the
Mortgage Loans then forming part of the Assets of the
Relevant Trust.
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Exceptions to Emergency Transfer
4.12 The obligations of the Servicer to deliver Mortgage Title
Documents to the Issuer Trustee do not extend to such
documents which the Servicer can prove, to the reasonable
satisfaction of the Issuer Trustee, are deposited with a
solicitor or title insurer (acting on behalf of the
Servicer), a land titles office, a stamp duties office or
any other Governmental Agency. The Servicer must provide a
list of such documents to the Issuer Trustee together with
any which have been lost within 10 Business Days of the
above notice having been received by it. In respect of
Mortgage Title Documents that are so deposited, the
Servicer must deliver these to the Issuer Trustee
immediately upon receipt from the solicitor, title insurer
or relevant office and, in respect of Mortgage Title
Documents that are lost, the Servicer must take all
reasonable steps satisfactory to the Issuer Trustee to
promptly replace such Mortgage Title Documents.
Indemnity
4.13 The Servicer indemnifies the Issuer Trustee against all
loss, costs, damages, charges and expenses incurred by the
Issuer Trustee:
(a) as a result of a breach by the Servicer of
clause 4.8 or clause 4.11; or
(b) in connection with the Issuer Trustee taking the
action referred to in clauses 4.8, 4.10 or 4.11,
including all registration fees, stamp duty, legal fees
and disbursements (charged at the usual commercial rates
of the relevant legal services provider), transport costs
and the cost of preparing and transmitting all necessary
documentation. If the Servicer breaches its obligations
under clauses 4.8 to 4.12 it is agreed that damages alone
will not be an adequate remedy for such a breach and that
the Issuer Trustee is entitled to specific performance by
the Servicer.
Issuer Trustee to co-operate with Servicer
4.14 If the Issuer Trustee holds any Mortgage Title Document
and if the Issuer Trustee receives from the Servicer a
satisfactory undertaking, the Issuer Trustee must release
to the Servicer from time to time such Mortgage Title
Documents as are reasonably required by the Servicer to
perform its obligations as Servicer under this agreement.
Issuer Trustee's duty while holding Mortgage Title Documents
4.15 While the Issuer Trustee holds any Mortgage Title
Documents, it must hold them in accordance with its
standard safekeeping practices and in the same manner and
to the same extent as it holds equivalent mortgage
documents as trustee.
Reappointment of Servicer as Custodian
4.16 If following a Servicer Termination Event:
(a) the Issuer Trustee is satisfied, notwithstanding
the occurrence of the Servicer Termination
Event, that the Servicer is an appropriate
person to act as custodian of the Mortgage Title
Documents; and
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(b) the Current Rating Agency confirms that the
appointment of the Servicer to act as custodian
of the Mortgage Title Documents will not have an
Adverse Rating Effect,
then the Issuer Trustee may by agreement with the Servicer
appoint the Servicer to act as custodian of the Mortgage
Title Documents upon such terms as are agreed between the
Issuer Trustee and the Servicer and approved by the Global
Trust Manager.
5 Servicer's liability
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No liability
5.1 The Servicer is not liable for any loss suffered by a
Secured Creditor or a Unitholder except to the extent that
such loss may be caused by:
(a) a breach by the Servicer of its obligations
under this agreement or the relevant
Supplemental Deed in respect of the Relevant
Trust; or
(b) an act or omission by any delegate of the
Servicer appointed in connection with clause
2.13 or 2.14 of this agreement.
Indemnity
5.2 The Servicer indemnifies the Issuer Trustee in respect of
a Relevant Trust in respect of all costs, damages, losses
and expenses incurred as a result of any Servicer
Termination Event (including, without limitation, in
relation to that Relevant Trust the costs of the
appointment of a new Servicer in accordance with clause 3)
or a failure by the Servicer to perform its duties under
this agreement except to the extent such costs, damages,
losses or expenses are incurred as a result of the fraud,
negligence or breach of trust of the Issuer Trustee.
6 Remuneration and expenses
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Servicer fees
6.1 The Servicer is entitled to a fee from the Assets of the
Relevant Trust for performing its functions and duties
under this agreement in respect of each Relevant Trust, in
an amount calculated and payable in accordance with the
relevant Supplemental Deed.
Expenses
6.2 Unless paid by or on behalf of the relevant Debtor, the
Servicer will pay from its servicing fee all reasonable
expenses incurred in connection with servicing the
Mortgage Loans of a Relevant Trust including expenses
related to the collection of the Mortgage Loans, but
excluding any expenses relating to the enforcement and
recovery of Mortgage Loans provided that where the consent
of a Mortgage Insurer is required in order for an expense
to be reimbursed by that Mortgage Insurer, that consent
must be obtained.
6.3 All expenses reasonably and properly incurred by the
Servicer in connection with the enforcement and recovery
of defaulted Mortgage
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Loans of a Relevant Trust including expenses relating to
any court proceedings, arbitration or other dispute are
reimbursable out of the Assets of that Relevant Trust.
6.4 The fee payable to the Servicer is inclusive of GST. The
Servicer will provide the Issuer Trustee any reasonably
documentation required for GST purposes so as to enable
the Issuer Trustee to receive an input tax credit or tax
refund for tax purposes.
Part C - General
7 Payments
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Payments generally
7.1 Each payment to be made by a party to another party under
this agreement or a Supplemental Deed must be made on the
due date for payment in such manner as the Global Trust
Manager and Issuer Trustee may determine.
No deduction
7.2 Each payment to be made by the Servicer to the Issuer
Trustee or the Global Trust Manager under this agreement
or the relevant Supplemental Deed except to the extent
agreed to be set off under that Supplemental Deed must be
made in full, free and clear of any set off, restriction
or condition and without any deduction or withholding
other than as required by law.
8 Notices
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Notices
8.1 Any notice, approval, consent or other communication in
connection with this agreement:
(a) must be given by an Authorised Person of the
relevant party; and
(b) must be in writing; and
(c) must be left at the address of the addressee or
sent by prepaid ordinary post to the address of
the addressee or sent by facsimile to the
facsimile number of the addressee, or sent by
e-mail to the e-mail address of the addressee
specified in clause 8.2 or any other address,
facsimile number or e-mail address any party may
from time to time notify to the other parties as
its address for service of communications
pursuant to this agreement.
Initial addresses
8.2 The initial address and facsimile numbers of
each party are:
Issuer Trustee:
Address: Level 3
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▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: 61 2 9221 7870
Attention: Manager, Securitisation
Email: (as notified from time to
time)
Global Trust Manager:
Address: ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: [(▇▇▇) ▇▇▇▇ ▇▇▇▇]
Attention: Manager, Group Funding
E-mail: (as notified from time to
time)
Servicer:
Address: ▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: [61 3 9601 7600]
Attention: Head of Servicing and Head
of Securitisation
E-mail: not applicable
Time effective
8.3 Unless a later time is specified in it a notice, approval,
consent or other communication takes effect from the time
it is received.
Receipt
8.4 A letter, facsimile or e-mail is taken to be received:
(a) in the case of a posted letter, on the third
(seventh, if posted to or from a place outside
Australia) day after posting;
(b) in the case of a facsimile, on production of a
transmission report by the machine from which
the facsimile was sent which indicates that the
facsimile was sent in its entirety to the
facsimile number of the recipient notified for
the purpose of this clause; and
(c) in the case of an e-mail, on receipt by the
sender of an e-mail from the recipient stating
that the e-mail was delivered in its entirety
and the contents and attachments of the e-mail
have been received.
However, if the deemed receipt of any notice is not before
4.00pm on a Business Day at the address of the recipient,
it is deemed to have been received at the commencement of
business on the next Business Day.
19
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9 Amendments to this agreement
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Amending power
9.1 Subject to this clause 9.1 and to any approval required by
law and by clause 9.2, and provided that 10 Business Days
prior notice of the proposed amendment has been given to
each Current Rating Agency, the Issuer Trustee, the Global
Trust Manager and the Servicer by agreement may amend, add
to or revoke any provision of this agreement (including
this clause 9.1) as it applies to any Relevant Trust if
the amendment, addition or revocation:
(a) in the opinion of the Issuer Trustee or of a
barrister or solicitor instructed by the Issuer
Trustee is necessary or expedient to comply with
or be consistent with the provisions of any
statute, ordinance, regulation or by-law or with
the requirement of any statutory authority;
(b) in the opinion of the Issuer Trustee is made to
correct a manifest error or is of a formal,
technical or administrative nature only;
(c) in the opinion of the Issuer Trustee or the
Global Trust Manager will enable the provisions
of this agreement to be more conveniently,
advantageously, profitably or economically
administered;
(d) in the opinion of the Issuer Trustee or the
Global Trust Manager is otherwise desirable for
any reason;
(e) is considered by the Issuer Trustee not to be
materially prejudicial to the interests of the
Noteholders as a whole or the interests of any
individual Noteholder or group of Noteholders;
or
(f) in the reasonable opinion of the Issuer Trustee
or of legal counsel appointed by the Issuer
Trustee is required by, is a consequence of, is
consistent with or is appropriate or expedient
as a consequence of, any amendment to any
statute, regulation or requirements of any
Governmental Agency (including, without
limitation, any amendment, addition or
revocation which is in the opinion of the Issuer
Trustee appropriate or expedient as a result of
any amendment to any legislation dealing with,
or associated with, taxation or any ruling by
the Commissioner or Deputy Commissioner of
Taxation or any government announcement or
statement that has or may have the effect of
altering the manner or basis of taxation of
trusts generally or of trusts similar to any of
the Trusts).
Consent required
9.2 If in the reasonable opinion of the Issuer Trustee any
amendment, addition or revocation referred to in clause
9.1(d) will be or is likely to become prejudicial to the
interests of Noteholders of a particular Class of the
Relevant Trust or to the interests of all Noteholders of
the
20
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Relevant Trust, the amendment, addition or revocation may
be effected only if in accordance with clause 9.3 or 9.4
(as the case may be).
Amendments prejudicial to Noteholders of a Class
9.3 Subject to clause 9.4, if in the opinion of the Issuer
Trustee any amendment, addition or revocation referred to
in clause 9.1(d) will be or is likely to become
prejudicial to the interests of Noteholders of a
particular class, the amendment, addition or revocation
may only be effected if the relevant Noteholders pass an
Extraordinary Resolution approving such amendment,
addition or revocation in accordance with this deed.
Amendments prejudicial to all Noteholders
9.4 If in the opinion of the Issuer Trustee, any amendment,
addition or revocation referred to in clause 9.1(d) will
be or is likely to become prejudicial to the interests of
all Noteholders in respect of the Trust:
(a) the amendment, addition or revocation may only
be effected if the relevant Noteholders pass an
Extraordinary Resolution approving such
amendment, addition or revocation in accordance
with this deed; and
(b) there will not be a separate Extraordinary
Resolution required for each class of
Noteholders pursuant to clause 9.3.
9.5 The Issuer Trustee will be entitled to assume that any
proposed alteration, addition or revocation referred to in
clause 9 will not be materially prejudicial to the
interests of a Class of Noteholders or all Noteholders if
each of the Current Rating Agencies confirms in writing
that if the alteration, addition or revocation is effected
this will not lead to a reduction, qualification or
withdrawal of the then rating given, respectively, to the
Class of Notes, or to each Class of Notes, by the Current
Rating Agency.
10 Governing law
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Governing Law
10.1 This agreement is governed by the law in force in the
Australian Capital Territory and the rights, liabilities
and obligations of the Global Trust Manager, Issuer
Trustee and Servicer are governed by the laws in force in
the Australian Capital Territory.
Submission to jurisdiction
10.2 Each party irrevocably and unconditionally submits to the
non-exclusive jurisdiction of the courts of the Australian
Capital Territory and courts of appeal from them. Each
party waives any right it has to object to an action being
brought in those courts including, without limitation, by
claiming that the action has been brought in an
inconvenient forum or that those courts do not have
jurisdiction.
Service
10.3 Without preventing any other mode of service, any document
in an action (including, without limitation, any writ of
summons or other
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originating process or any third or other party notice)
may be served on any party by being delivered to or left
for that party at its address for service of notices under
clause 8.
11 Limited recourse
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Clause 2 of the Definitions Schedule applies to this
agreement as if set out in full in it (with any
consequential changes as are necessary to give effect to
that clause in this agreement).
12 Counterparts
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This agreement may consist of a number of counterparts and
the counterparts taken together constitute one and the
same instrument.
EXECUTED as a agreement in the Australian Capital Territory.
22
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Execution page
-----------------------------------------------------------------------------
SIGNED by [ ] on behalf of NATIONAL )
GLOBAL MBS MANAGER PTY LTD in the )
presence of: )
)
[ ].......................... )
Signature of witness )
)
[ ]................... )
Name of witness (block letters) )
)
[ ] ............ ) [ ] ....................
Address of witness ) By executing this agreement
) the signatory states that the
[ ].................... ) signatory has received no
Occupation of witness ) notice of revocation of the
) authority pursuant to which
) this agreement is executed
)
SIGNED by [ ] )
as attorney for )
PERPETUAL TRUSTEE COMPANY )
LIMITED under power of )
attorney dated )
[ ] )
in the presence of: )
)
[ ]..................... )
Signature of witness )
) [ ]..................
[ ]...................... ) By executing this agreement
Name of witness (block letters) ) the attorney states that the
) attorney has received no
[ ]............. ) notice of revocation of the
Address of witness ) power of attorney
)
[ ]......................... )
Occupation of witness )
23
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SIGNED by [ ] )
as attorney for NATIONAL )
AUSTRALIA BANK LIMITED under )
power of attorney dated )
)
in the presence of: )
)
...................................... )
Signature of witness )
)
...................................... )
Name of witness (block letters) )
)
...................................... ) [ ]......................
Address of witness ) By executing this agreement
) the attorney states that the
...................................... ) attorney has received no
Occupation of witness ) notice of revocation of the
) power of attorney
-----------------------------------------------------
Dated [ ]
National RMBS Trusts
Consolidated
Servicing Agreement
National Global MBS Manager Pty Ltd
("Global Trust Manager")
Perpetual Trustee Company Limited
("Issuer Trustee")
National Australia Bank Limited,
("Servicer")
Mallesons ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Governor ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Telephone (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
Facsimile (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
DX ▇▇▇ ▇▇▇▇▇▇
Ref: SRF:CD3
-------------------------------------------------------------------------------
Contents National RMBS Trusts
Servicing Agreement
-------------------------------------------------------------------------------
Part A - Interpretation 1
1 Definitions and interpretation 1
Definitions 1
Interpretation 1
Part B - Servicing 2
2 Servicing of Mortgage Loans and General Servicer Covenants 2
Appointment of Servicer 2
Servicer's Obligations 2
Servicer agrees to perform duties 3
Powers 3
General Servicer covenants 3
Servicer's Statement 6
Provision of information 6
Proposed amendments to Servicing Procedures 6
Delegation by the Servicer 7
Adverse Effect 7
3 Servicer Termination Event and retirement of Servicer 7
Servicer Termination Event 7
Termination of Servicing Agreement 8
Termination of Servicer's appointment and transfer of servicing
obligations 8
Voluntary Retirement of Servicer 8
Appointment of Substitute Servicer 8
Issuer Trustee act as Servicer 9
Issuer Trustee may give discharges 9
Servicer may accept payment 9
Servicer and Global Trust Manager to provide full co-operation 9
Release 9
Title Perfection Event 9
4 Custodian 10
Standard 10
Information Indemnity 10
Auditor review 10
Document Custody Audit Report 11
Timing of Document Custody Audit Reports 12
Adverse Document Custody Audit Report 12
Custody Transfer Event 12
Exceptions 14
Failure to comply 14
Emergency Document transfer 14
Exceptions to Emergency Transfer 15
Indemnity 15
Issuer Trustee to co-operate with Servicer 15
(ii)
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Issuer Trustee's duty while holding Mortgage Title Documents 15
Reappointment of Servicer as Custodian 15
5 Servicer's liability 16
No liability 16
Indemnity 16
6 Remuneration and expenses 16
Servicer fees 16
Expenses 16
Part C - General 17
7 Payments 17
Payments generally 17
No deduction 17
8 Notices 17
Notices 17
Initial addresses 17
Time effective 18
Receipt 18
9 Amendments to this agreement 19
Amending power 19
Consent required 19
Amendments prejudicial to Noteholders of a Class 20
Amendments prejudicial to all Noteholders 20
10 Governing law 20
Governing Law 20
Submission to jurisdiction 20
Service 20
11 Limited recourse 21
12 Counterparts 21