LENDERS' MORTGAGE INSURANCE PROVISIONS
between
Perpetual Trustees Consolidated Limited in its capacity as trustee of the
Crusade Global Trust No. 1 of 2007
and
PMI Mortgage Insurance Ltd
ABN 70 000 000 000
and
Xx.Xxxxxx Bank Limited
ABN 92 055 513 070
MASTER AGREEMENT NUMBER: X00000000
DATE OF ISSUE: 13 March 2007
PMI LENDERS' MORTGAGE INSURANCE
1. The insurance Agreement is between You and Us.......................... 4
1A Disclosures, representations, acts and omissions....................... 4
2. We rely on statements from You......................................... 4
3. If requirements are not met............................................ 5
3A Obligations............................................................ 6
4. Consumer Credit Code................................................... 6
5. What types of insurance do We provide?................................. 6
6. Entering into the Agreement and the once-only fee...................... 7
7. Management of Insured Mortgage and Loan Account........................ 7
8. Assignment of this Agreement........................................... 7
9. What if the Borrower requires more money?.............................. 8
10. Construction and Improvement Loans..................................... 8
11. Securing and protecting the loan....................................... 9
12. Protecting Your rights................................................. 10
13. Protecting the Mortgaged Property...................................... 11
14. Action following default by the Borrower............................... 12
15. How and when to claim for Loss......................................... 13
16. How is Your claim for Loss calculated?................................. 14
17. You give Us Your rights after We pay a claim........................... 17
18. After a claim is made.................................................. 17
19. Termination of the Agreement........................................... 17
20. Notices, reports and Applications...................................... 18
21. Meaning of words....................................................... 19
22. Assignments Related to Securitisation.................................. 25
23. Servicer as Mortgage Manager........................................... 26
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24. Payment of Once-only Fee............................................... 27
25. Trustee Provisions..................................................... 27
26. Governing Law.......................................................... 28
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PMI LENDERS' MORTGAGE INSURANCE PROVISIONS
SOME WORDS USED IN THE AGREEMENT HAVE SPECIFIED MEANINGS WHICH ARE LISTED IN
CLAUSE 21
1. THE INSURANCE AGREEMENT IS BETWEEN YOU AND US
The Lenders' Mortgage Insurance Agreement ("the Agreement") is a contract of
insurance between You and Us. It relates to the mortgages described in Exhibit A
to this Agreement.
We agree to insure You against Loss on each Insured Mortgage on the terms set
out in the Agreement upon payment of the once-only fee.
The Agreement consists of:
o this document and any exhibits, schedules and attachments to it; and
o the details in the Schedule relating to the Lenders' Mortgage
Insurance Advice.
1A DISCLOSURES, REPRESENTATIONS, ACTS AND OMISSIONS
For the purposes of the Agreement any disclosure, non-disclosure or
representation, the doing of any act or thing, the omission to do any act or
thing and the receipt of any moneys by any Loan Originator, Mortgage Manager,
the Insured Lender or the Trustee shall be deemed to be the disclosure,
non-disclosure or representation, the doing of the act or thing, the omission to
do the act or thing and the receipt of the moneys by the Insured Lender or the
Trustee.
2. WE RELY ON STATEMENTS FROM YOU
The Insured Lender warrants that:
o the particulars and statements in the Application are true and
correct;
o the Insured Mortgages meet the Eligibility Criteria; and
o the Loan Amount is originated according to and in compliance with the
Insured Lender's loan policy at the time of origination.
You acknowledge that We rely on the particulars and statements in the
Application in deciding whether to provide You insurance.
For the purpose of the Agreement any Loan Originator involved in the
establishment of the Insured Mortgage is agreed to be Your agent and the
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Insured Lender will be responsible for any non-disclosure or misrepresentation
arising from information provided by or through such person.
DUTY OF DISCLOSURE
Before You enter into a contract of insurance with Us, You have a duty, under
the Insurance Contracts Xxx 0000, to disclose to Us every matter that You know,
or could reasonably be expected to know, is relevant to Our decision whether to
accept the risk of the insurance and, if so, on what terms.
You have the same duty to disclose those matters to Us before You renew, extend,
vary or reinstate a contract of insurance.
Your duty however does not require disclosure of a matter:
o that diminishes the risk to be undertaken by Us; or
o that is of common knowledge; or
o that We know or, in the ordinary course of Our business, ought to
know; or
o as to which compliance with Your duty is waived by Us.
NON-DISCLOSURE
If You fail to comply with Your duty of disclosure, We may be entitled to reduce
Our liability under the Agreement in respect of a claim or may cancel the
Agreement.
If Your non-disclosure is fraudulent, We may also have the option of avoiding
the contract from its beginning.
When You have made a statement which was in fact untrue but was made on the
basis of a reasonable belief that You held based on information provided by the
Borrower, the statement will not be taken to be a misrepresentation.
3. IF REQUIREMENTS ARE NOT MET
If any of the requirements or obligations of the Insured Lender or the Trustee
or both under the Agreement are not met, then to the extent not prohibited by
the Insurance Contracts Xxx 0000:
o We may refuse to pay a claim; or
o We may reduce the amount of the claim by the amount which in Our
opinion reasonably represents the extent to which Our interests have
been prejudiced by Your failure to meet any such requirement; or
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o We may cancel the Agreement.
3A OBLIGATIONS
An obligation or requirement imposed on the Trustee under the Agreement will be
taken by Us to be performed or discharged by the Trustee to the extent that it
is performed or discharged by either or both of the Insured Lender or the
Mortgage Manager.
4. CONSUMER CREDIT CODE AND UNINSURED LOSS
You are insured for Loss resulting from:
o a Credit Tribunal or Court ordering postponement of enforcement
proceedings under Section 88 of the Consumer Credit Code; or
o a change to the Insured Mortgage or Loan Account or both in a manner
set out in Section 66 of the Consumer Credit Code:
o agreed to by You with Our prior written consent; or
o ordered by a Credit Tribunal or Court under Section 68 of the
Consumer Credit Code.
You are not insured for Loss resulting from a Credit Tribunal or Court making
orders affecting Your rights under the Insured mortgage, Collateral Security or
Loan Security or affecting Your ability to enforce those rights, by:
o reopening an unjust Insured Mortgage, Collateral Security or Loan
Account under Section 70 of the Consumer Credit Code;
o annulling or reducing any unconscionable interest rate change, fee or
charge under Section 72 of the Consumer Credit Code;
o reducing a Borrower, Guarantor or Security Interest provider's
liability to You; or
o ordering that You pay damages to a Borrower, Guarantor, Security
Interest provider or any other person.
5. WHAT TYPES OF INSURANCE DO WE PROVIDE?
The Advice states the insurance You have.
100% INSURANCE
You have 100% insurance. In the event of a claim You are reimbursed for Your
Loss calculated in accordance with the Agreement.
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6. ENTERING INTO THE AGREEMENT AND THE ONCE-ONLY FEE
You pay a once-only fee. This fee is calculated on the Loan Amount. You will
also have to pay any applicable stamp duty, GST, any additional government
duties, levies or charges, where applicable.
You must on or prior to the Closing Date pay to Us the once-only fee, GST and
any additional government duties, levies or charges, where applicable (in such
amount as agreed between Us and Xx.Xxxxxx Bank Limited prior to the Closing
Date). Until the once-only fee, GST and any additional government duties, levies
or charges, where applicable, is received by Us the Agreement does not come into
force. If the once-only fee is not received by Us on or before the Closing Date
the Agreement does not come into force at all.
7. MANAGEMENT OF INSURED MORTGAGE AND LOAN ACCOUNT
Each Insured Mortgage and each Loan Account must be administered and managed by
You or a Mortgage Manager.
Any Mortgage Manager is agreed to be Your agent.
Any Mortgage Manager must be approved by Us in writing.
We may require You to appoint or replace a Mortgage Manager to administer and
manage the Insured Mortgage and the Loan Account in the following situations:
o insolvency, liquidation, receivership or statutory management of You
or any existing Mortgage Manager; or
o if, after consultation with You, We are of the reasonable opinion that
the administration or management of the Insured Mortgage is not being
conducted satisfactorily.
8. ASSIGNMENT OF THIS AGREEMENT
You may assign Your rights under the Agreement to someone else only if:
o You have Our prior written consent; or
o It is pursuant to a substitution of the Trustee under the transaction
documents for the Series Trust; or
o We have notified You in writing that You may do so without Our
consent.
Within 30 days of any assignment You must notify Us in writing and pay to Us any
applicable fee.
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9. WHAT IF THE BORROWER REQUIRES MORE MONEY?
Before the advance of funds secured by the Insured Mortgage additional to the
Loan Amount ("a further advance") Our prior written consent is required.
An additional fee, Including GST where applicable, is payable before a further
advance is insured. The Insured Lender will also have to pay any additional
government duties, levies or charges where applicable.
However, You need not seek Our prior consent to a further advance if:
o LOAN REDRAW
o the Borrower's payments are equal to or in advance of the
Scheduled Instalments; and
o the Borrower only redraws up to the amount by which the Scheduled
Instalments have been exceeded.
In this case such a further advance is insured and no additional fee is payable.
10. CONSTRUCTION AND IMPROVEMENT LOANS
If the purpose of the Insured Mortgage or any part of the Insured Mortgage is
for Improvements to the Mortgaged Property, then We are not obliged to pay a
claim unless:
o BEFORE THE INITIAL LOAN ADVANCE
o the Borrower has entered a fixed price contract accepted by the
Insured Lender; and
o all necessary consents and approvals from relevant statutory and
other authorities are held and are current; and
o DURING CONSTRUCTION
o if the Loan Amount is advanced progressively, the progress
advances do not exceed increases in the value of the Mortgaged
Property confirmed by inspection certificates from a Valuer
instructed by the Insured Lender; and
o the Improvements are completed within twelve months of the
Initial Loan Advance; and
o an amount of the principal is retained by the Insured Lender to
ensure that the Improvements can be completed in accordance with
the plans and specifications incorporated within the fixed price
building contract accepted by the Insured Lender; and
o BEFORE THE FINAL LOAN ADVANCE
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o A final inspection certificate from a Valuer is provided
confirming that the completion of Improvements is in accordance
with the plans and specifications; and
o a certificate is issued by each relevant authority certifying
that the Improvements comply with approvals issued by the
authority before the Final Loan Advance is made.
COST OVERRUNS
Cost Overruns must be paid immediately they are identified and prior to any
further progress payments being paid.
Cost Overruns (including, without limitation any Cost Overruns attributable
wholly or partly to the introduction of GST and any GST component of the Cost
Overruns) are not insured.
We may decline to meet a claim under the Agreement until the Improvements for
which the Insured Mortgage was made have been completed.
If the Insured Lender does not retain sufficient funds to complete the
Improvements, We will deduct from any claim under the Agreement an amount equal
to the additional amount required to complete the Improvements as assessed by a
Valuer instructed by Us.
11. SECURING AND PROTECTING THE LOAN
The Insured Mortgage must be an enforceable registered mortgage over real estate
property in Australia. You are not insured if the mortgage is not enforceable.
You must follow the procedures of a prudent lender in preparing, administering
and managing the Insured Mortgage, any Collateral Security and the Loan Account.
The Insured Mortgage must be either:
o a first mortgage; or
o a second or lower ranking mortgage.
Where the Insured Mortgage is a second or a lower ranking mortgage the
following conditions must be met:
o St. Xxxxxx Bank Limited must be the first mortgagee of all prior
ranking mortgages; and
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o all prior ranking mortgages must be equitably assigned to the
Trustee on the Closing Date (or such other date as Xx.Xxxxxx Bank
Limited and We agree).
Where the Agreement insures more than one mortgage, the mortgages must be cross
collateralised.
VALUATIONS
A Valuation which forms part of the Application to Us must:
o be at Your instruction; and
o expressly acknowledge that We may rely on it; and
o be in a form acceptable to Us.
VARIATIONS
Variations to the Insured Mortgage or Loan Account or both can only be made with
Our prior written consent.
Some examples are:
o capitalisation or deferment of instalments
o partial discharge, release or substitution of security
o change of the Borrower or any Guarantor
o conversion of principal and interest loans to or from interest only
loans
o variation to the Expiry Date of the loan.
12. PROTECTING YOUR RIGHTS
During the whole term of the Agreement You must protect Your rights under Your
Security Interest and in particular:
o Your right to take action to recover the Loan Account must continue to
exist; and
o Your right to take action to recover the Loan Account must not be
deferred except with Our written consent; and
o there must be no Security Interest over the Mortgaged Property which
takes priority over the Insured Mortgage or those We consent to in
writing and other than a first mortgage where the conditions in clause
11 have been met and any Permitted Prior Security Interests in
relation to the Insured Mortgage; and
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o all the terms of the Insured Mortgage and every Collateral Security
must continue to be enforceable;
o You must give Us when requested notice in writing of the discharge in
whole of the Insured Mortgage and any Collateral Security within
thirty (30) days of such discharge occurring.
13. PROTECTING THE MORTGAGED PROPERTY
You and the Insured Lender must do everything reasonable to ensure that the
Insured Lender's interest in the Mortgaged Property is protected.
If You or any of Your officers responsible for the administration of the Loan
Account becomes actually aware:
(A) that the Mortgaged Property is defective, damaged, has been vacated or is
contaminated, You or the Insured Lender must tell us immediately; and
(B) that the condition of the Mortgaged Property has deteriorated in a material
respect, You or the Insured Lender must do everything reasonable and which
You or the Insured Lender is permitted to do under the Loan or the Mortgage
to restore the Mortgaged Property (without any obligation on You to expend
any money on such restoration).
PROPERTY INSURANCE
It must be a term of the relevant Loan or Mortgage that the Borrower is required
to ensure that during the whole term of the Agreement that the Mortgaged
Property is insured for its full insurable value against the standard perils
normally covered in a general insurance policy on a replacement and
reinstatement basis. Your interest as mortgagee must be noted.
PROPERTY DAMAGE
If the Mortgaged Property suffers any damage or destruction (except reasonable
wear and tear), You must ensure that all proceeds of any insurance which You
receive and which is available to restore that damage or destruction (in whole
or in part) is so applied. This does not limit Your ability to expend any other
money towards restoration as You see fit.
We will meet a claim under the Agreement only when the Mortgaged Property has
been restored.
The costs of restoration are not insured under this Agreement.
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However if the purpose of the Insured Mortgage or any part of the Insured
Mortgage is for Improvements to the Mortgaged Property We will meet a claim
under the Agreement only when the Improvements have been completed.
CONTAMINATION
If there is Contamination of the Mortgaged Property We will meet a claim under
the Agreement only when the Contaminant has been removed and the Mortgaged
Property is cleaned up and restored as nearly as possible to its condition at
the date of commencement of the insurance.
The costs of removal, clean up and restoration arising from Contamination are
not insured under the Agreement.
14. ACTION FOLLOWING DEFAULT BY THE BORROWER
In the event of default by the Borrower You, or the Mortgage Manager on Your
behalf, must follow the procedures of a prudent lender in administering and
managing the Insured Mortgage, any Collateral Security and the Loan Account.
FIRST REPORTING TO US
Any of the following events must be reported to Us in writing within 14 days:
o the total amount due and unpaid under the Insured Mortgage or
Loan Account or both is equal to or exceeds the total of ninety
(90) days arrears; or
o the Loan Amount is not repaid at the expiry of the Loan Term; or
o You take possession of the Mortgaged Property; or
o You become aware:
o there has been a default under a mortgage over the Mortgaged
Property other than the Insured Mortgage; or
o another mortgagee intends to sell or has sold the Mortgaged
Property; or
o an Application for winding up or administration or a petition for
bankruptcy has been or is to be lodged in relation to the
Borrower or any Guarantor; or
o any meeting of the members or shareholders of the Borrower or any
Guarantor is convened for the purpose of considering any
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resolution to wind up that Borrower or Guarantor or to put it
under administration; or
o the Borrower or any Guarantor has assigned its estate for the
benefit of creditors generally; or
o a receiver or manager has been appointed to the Borrower or any
Guarantor; or
o the Borrower intends to sell the Mortgaged Property in
circumstances where a claim under the Agreement is likely to
result; or
o there has been or will be any other default under the terms of
the Insured Mortgage or Loan Account; or
o of any material event or circumstance relating to the Mortgaged
Property or any Collateral Security or both arising after the
date of commencement of the Agreement.
FURTHER REPORTS
At monthly or longer intervals nominated by Us, the Insured Lender or Mortgage
Manager must provide Us with updated written reports and any documents about or
affecting any reported default or event.
CONSULTATION WITH US
You must continue to consult with Us following a default by the Borrower or any
Guarantor.
If the Mortgaged Property is placed for sale You must:
o provide Us with a Valuation which will be no more than 60 days old at
the proposed date of sale; and
o give Us 14 days notice of an intended sale; and
o inform Us of any reasonable offers; and
o seek Our consent prior to accepting a sale price which will result in
a claim.
RENTS OR OTHER AMOUNTS RECEIVED
Any rents or profits or other amounts You receive relating to the Mortgaged
Property or any Collateral Security are to be credited to the Loan Account.
15. HOW AND WHEN TO CLAIM FOR LOSS
A claim for Loss may be submitted:
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o when the sale of the Mortgaged Property has been sold and settled; or
o when We ask before the Mortgaged Property is sold; or
o when the mortgagee under a prior mortgage has completed the sale of
the Mortgaged Property.
The claim should be lodged within 30 days from the earlier of:-
o the Settlement Date; or
o a request from Us.
In support of the claim We must be provided with all documents and information
We reasonably require.
Any payment of a claim which We pay in full to You is a full and final discharge
of Our liability under the Agreement. Payment of a claim to the Insured Lender
shall be a full and final discharge of any liability to pay a claim to the
Trustee and payment of a claim to the Trustee shall be a full and final
discharge of any liability to pay a claim to the Insured Lender.
At Our discretion We may pay a claim before the Mortgaged Property has been
sold.
Within fourteen (14) days of receipt by Us of the complete claim documentation
Including all documentation and information reasonably required by Us We will
assess the claim and pay the amount recoverable under this Agreement.
16. HOW IS YOUR CLAIM FOR LOSS CALCULATED?
The Loss is the amount owing less the amount recovered as defined below:
AMOUNT OWING IS THE TOTAL OF:
o BALANCE OF THE LOAN ACCOUNT AT THE SETTLEMENT DATE; AND
o INTEREST ON THE BALANCE OF THE LOAN ACCOUNT FROM THE SETTLEMENT DATE
TO THE DATE OF CLAIM TO A MAXIMUM OF 30 DAYS; AND
o COSTS INCURRED ON SALE OF THE MORTGAGED PROPERTY WHICH INCLUDE:
o costs properly incurred for insurance premiums, rates, land tax
(calculated on a single holding basis) and other statutory
charges on the Mortgaged Property; and
o reasonable and necessary legal fees and disbursements incurred in
enforcing or protecting Your rights under the Insured Mortgage;
and
o reasonable agent's commission, advertising costs, Valuation costs
and other costs relating to the sale of the Mortgaged Property;
and
o reasonable and necessary costs incurred in maintaining (but not
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restoring) the Mortgaged Property, however total costs in excess
of $1,500 can be included only with Our prior written consent to
incur them; and
o any GST incurred on the sale or transfer of the Mortgaged
Property to a third party in or towards the satisfaction of any
debt that the Borrower owed under the Loan Account, and any GST
is properly incurred in respect of any of the costs, fees,
disbursements or commissions specifically identified under this
section headed "Costs incurred on the sale of the Mortgaged
Property which include."
o any amounts applied with Our prior written consent to discharge a
Security Interest having priority over the Insured Mortgage.
AMOUNT OWING DOES NOT INCLUDE:
o Interest charged in advance; and
o Default rate interest; and
o Early Repayment Fees; and
o Break Funding Costs; and
o Higher rate interest payable because of failure to make prompt
payment; and
o Fines, fees or charges debited to the Loan Account; and
o Costs of restoration following damage to or destruction of the
Mortgaged Property; and
o Costs of removal, clean up and restoration arising from Contamination
of the Mortgaged Property; and
o Additional funds advanced to the Borrower without Our written consent
other than any loan redraws in accordance with clause 9; and
o Amounts paid in addition to the Loan Amount to complete Improvements;
and
o Cost Overruns; and
o Any civil or criminal penalties imposed under legislation Including
the Consumer Credit Code.
o
AMOUNT RECOVERED IS THE TOTAL OF:
o THE GROSS PROCEEDS OF SALE OF THE MORTGAGED PROPERTY; AND
o THE FOLLOWING IF NOT ALREADY APPLIED TO THE CREDIT OF THE LOAN
ACCOUNT:
o compensation received for any part of the Mortgaged Property or
any Collateral Security that has been resumed or compulsorily
acquired; and
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o all rents collected and other profits received relating to the
Mortgaged Property or any Collateral Security; and
o any sums received under any insurance policy relating to the
Mortgaged Property not applied to restoration of the Mortgaged
Property following damage or destruction but only to the extent
you are entitled to apply those sums to the credit of the Loan
Account; and
o all amounts recovered from the exercise of Your rights relating
to any Collateral Security; and
o any other amount received relating to the Insured Mortgage or any
Collateral Security Including any amounts received from the
Borrower, any Guarantor, or prior mortgagee.
o any amount incurred by You in respect of GST relating to the
Mortgaged Property or any Collateral Security to the extent for
which You are entitled to claim an Input Tax Credit.
REDUCTIONS
Where You have made a claim and Your Loss has been increased due to Your
consent, without Our written approval, to:
o the creation of any lease, licence, easement, restriction or other
notification affecting the Mortgaged Property; or
o an increase in or acceleration of the payment obligation of the
Borrower under any Security Interest having priority over the Insured
Mortgage; then
We may reduce the amount payable to You by that increased Loss.
Where We pay any claim the amount of that payment will be less the amount of any
GST Input Tax Credit or reduced Input Tax Credit (together "Input Tax Credits")
that are or may be made available to You by reason of any taxable supply made in
connection with the exercise of Your rights under or in connection with the
Mortgaged Property and in respect of which the payment is made. If the payment
is not made in respect of any particular taxable supply, then the payment shall
be reduced by such amount as in Our opinion reflects the Input Tax Credits that
would have been available if the payment had been applied in connection with the
exercise of Your rights under or in connection with the Mortgaged Property or
for the provision of any services in connection with the exercise of such rights
Where Your Loss has been increased due to the making of any false or misleading
statement, assurance or representation to the Borrower or any
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Guarantor We may reduce the amount paid in the event of a claim by that increase
in the Loss.
17. YOU GIVE US YOUR RIGHTS AFTER WE PAY A CLAIM
After We pay a claim We may require You to:
o assign the Insured Mortgage and any Collateral Security to Us; or
o appoint Us Your attorney to exercise any of Your rights under the
Insured Mortgage and any Collateral Security.
You must comply with Our reasonable requests for assistance to recover from the
Borrower or any Guarantor the amount We pay to You in the event of a claim.
18. AFTER A CLAIM IS MADE
REFUNDS OF AMOUNTS RECOVERED BY YOU
Any amount You recover relating to the Insured Mortgage or any Collateral
Security after You have made a claim must be paid to Us.
SHARING OF RECOVERIES
However, if You sustain a Loss on the Loan Account after the sale of the
Mortgaged Property and payment of a claim by Us, any recoveries under the
Insured Mortgage or any Collateral Security, will be shared between You and Us
on a pro-rata basis.
The calculation of the pro-rata sharing shall exclude any amounts relating to
debts owed by the Borrower independent of the Loan Account such as personal
loans or credit card debts.
19. TERMINATION OF THE AGREEMENT
The Agreement terminates:
o when the Loan Account is repaid in full; or
o on the Expiry Date of the insurance, however if before fourteen (14)
days after the Expiry Date of the insurance You have given Us notice
of default the Agreement will continue solely for the purpose of a
claim; or
o in respect of a Loan, when We pay a claim in respect to that Loan; or
o upon cancellation of the Agreement in accordance with the Insurance
Contracts Xxx 0000.
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ASSISTANCE AND INSPECTION
o You will co-operate with all reasonable requests by Us and Our
representatives and all requests by the Australian Prudential
Regulation Authority for information, documents and assistance
relating to Applications or Insured Mortgages.
o You will, at Your own expense and within 15 business days of a written
notice by Us, make available to Us and Our representatives, access to
and copies of all Applications and supporting documentation requested
by Us.
o We may require You to furnish to Us information, Applications and
supporting documentation, which We may use for any purpose permitted
by law including for the purpose of reviewing compliance with the
Eligibility Criteria.
o We will exercise Our rights of inspection reasonably.
o In the event of any inconsistency in the information, Applications and
supporting documentation that You provide to Us, You will assist Us to
identify the reasons for, and resolve, the inconsistency.
REPORTING
o Within 15 business days of the end of each calendar month, You will
provide to Us in writing the following information identifying, in
relation to the preceding month Loans that have been fully repaid.
20. NOTICES, REPORTS AND APPLICATIONS
Notices, reports and Applications to Us are to be provided to:
PMI Mortgage Insurance Ltd.
Xxxxx 00 00 Xxxxxx Xxxxxx
XXXXXX XXX 0000
Facsimile No: 02 9251 5550
or to any other address We specify in writing.
Notices to You are to be provided to Your address stated in the Advice or any
other address You may specify in writing.
Where agreed between You and Us notices, reports and Applications may be
provided by mutually acceptable methods of electronic communication.
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21. MEANING OF WORDS
ADVICE AND LENDERS' MORTGAGE INSURANCE ADVICE
means the details and any special conditions specified in the Schedule in
relation to a mortgage insured under the Agreement.
APPLICATION
means information supplied to Us. This information will generally comprise
documentation Including the Lenders' Mortgage Insurance Application, Borrower's
loan Application, Your loan assessment and supporting documentation and a
Valuation of the Mortgage property and any documents setting out Xx.Xxxxxx Bank
Limited's Residential Policy and Procedure in relation to the Insured Mortgages.
BORROWER
means the borrower specified in the Loan.
BREAK FUNDING COSTS
means costs or Losses incurred by You as a result of the Insured Mortgage being
discharged or the Loan Account being repaid or both, prior to the expiry of the
Loan Term provided You are entitled to recover such costs or Losses from the
Borrower.
CLOSING DATE
means the date specified as such in the Schedule.
COLLATERAL SECURITY
means any Security Interest, other than the Insured Mortgage, You obtain as
security for, or guaranteeing, the payment of the Loan Account.
CONSUMER CREDIT CODE
means the Consumer Credit Code set out in the Appendix to the Consumer Credit
(Queensland) Xxx 0000 as in force and applicable for the time being in each
State and Territory of Australia and in Western Australia the Consumer Credit
(Western Australia) Code and in Tasmania, the Consumer Credit (Tasmania) Code.
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CONTAMINANT
means any substance the presence of which on a property renders the property in
whole or in part harmful or unusable or both, Including radioactive material,
asbestos, biological agents, heavy metals and toxins.
CONTAMINATION
means the presence in, on or under a property of any Contaminant at a
concentration above that naturally present in, on or under the property.
COST OVERRUNS
may occur if the purpose of the Insured Mortgage or any part of the Insured
Mortgage is for Improvements to the Mortgaged Property. Cost Overruns means the
cost of Improvements (including Improvements the subject of variations to the
fixed price building contract) in excess of the amounts approved in the original
Loan Amount and identified in the fixed priced building contract.
CREDIT TRIBUNAL OR COURT
means a Credit Tribunal or Court having jurisdiction under the Consumer Credit
Code.
EARLY REPAYMENT FEES
means any fines, fees or charges You are entitled to recover from the Borrower
as a result of the Insured Mortgage being discharged or the Loan Account being
repaid or both prior to the expiry of the Loan Term.
ELIGIBILITY CRITERIA
means the eligibility criteria detailed in the Schedule.
EXPIRY DATE:
of the insurance means the expiry date of the Loan in respect of an Insured
Mortgage.
FINAL LOAN ADVANCE
means the last progress payment of the Loan Amount upon completion of any
improvement to the Mortgaged Property.
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GST
means the goods and services tax as imposed by the GST Act.
GST ACT
means A New Tax System (Goods and Services Tax) Xxx 0000, or, if that Act does
not exist for any reason, means any Act imposing or relating to the imposition
or administration of a goods and services tax in Australia and any regulation
made under that Act.
GUARANTOR
means any person who has guaranteed performance of any of the Borrower's
obligations under the Insured Mortgage or Loan or both or provided indemnity in
respect of breach of those obligations.
IMPROVEMENTS
means any construction, additions, renovations and repairs on or to a Mortgaged
Property.
INCLUDING OR SUCH AS
when introducing an example does not limit the meaning of the words to which the
example relates to that example or examples of a similar kind.
INITIAL LOAN ADVANCE
means the first advance of the Loan Amount or part of the Loan Amount and
includes the only advance if the entire Loan Amount is advanced at one time.
INSURED LENDER
means the insured lender specified in the Schedule.
INSURED MORTGAGE
means each mortgage specified in Exhibit A to the Agreement.
INPUT TAX CREDIT
has the meaning given to that term by the GST Act.
Page 21 of 33
LOAN
means each loan specified in the Schedule.
LOAN ACCOUNT
means the total of the Loan Amount and interest on the Loan Amount outstanding
under the Insured Mortgage, or related Loan documents.
LOAN AMOUNT
means the loan amount stated in the Advice.
LOAN ORIGINATOR
means any person who, whether acting as the agent of the Insured Lender or of
the Borrower or acting independently is involved in the marketing or
establishment of the Insured Mortgage and may include an agent, a mortgage
broker, a Mortgage Manager and a Trust Manager.
LOAN TERM
means the loan term stated in the Loan.
LOSS
means loss calculated in accordance with the Agreement.
LOW DOC LOAN
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means a Loan, originated as a "Low Doc (Stated Income) Home Loan", in respect of
which:
(a) the relevant Borrower, at the time of settlement of the Loan, has been
self employed or a full time investor for not less than 2 years; or
(b) the relevant Borrower is a salaried borrower who provides St. Xxxxxx
with an employment confirmation, and information contained in the
relevant application verifies that the Borrower has been employed for
30 months over the three years preceding settlement.
and in each case the income verification requirements are less extensive than
for other Loans.
MORTGAGE MANAGER
means a person appointed to administer and manage the Insured Mortgage and Loan
Account on Your behalf.
MORTGAGED PROPERTY
means the mortgaged property stated in the Loan.
PERMITTED PRIOR SECURITY INTERESTS
in relation to an Insured Mortgage means any statutory charges, prior charges of
a body corporate, service company or equivalent, whether registered or
otherwise, which do not prevent the Insured Mortgage from being a first ranking
mortgage or a second ranking mortgage (as the case may be) in accordance with
Xx.Xxxxxx Bank Limited's lending criteria.
SCHEDULE
means the Schedule of Variables attached (including an annexure setting out the
Eligibility Criteria) to the Agreement.
SCHEDULED INSTALMENTS
means the total amount due from time to time under the Insured Mortgage or Loan
Account or both whether paid or unpaid.
Page 23 of 33
SCHEDULED MONTHLY INSTALMENT
means the total amount payable each month (from time to time) by the Borrower to
You excluding any interest charged in advance, higher rate interest payable for
late payment and default rate interest.
SERIES TRUST
means the Crusade Global Trust No. 1 of 2007 constituted under the terms of a
Master Trust Deed dated 14 March 1998.
SERVICER
means Xx.Xxxxxx Bank Limited, ABN 92 055 513 070 or, if Xx.Xxxxxx Bank Limited
retires or is removed as master Servicer of the Series Trust, any substitute
master servicer.
SETTLEMENT DATE
means the date on which the sale of the Mortgaged Property is completed.
SECURITY INTEREST
means any mortgage, charge, lien, pledge, trust, power or other rights given as
or in effect as security for the payment of money or performance of obligations.
Security Interest also includes a guarantee and an indemnity.
XX.XXXXXX BANK LIMITED
means Xx.Xxxxxx Bank Limited and its successors and permitted assigns.
TRUST MANAGER
means a person appointed to manage a trust pursuant to which You are the
mortgagee of the Insured Mortgage, including Crusade Management Limited, ABN 90
072 715 916.
TRUSTEE
means Perpetual Trustees Consolidated Limited in its capacity as trustee of the
Crusade Global Trust No. 1 of 2007 or, if Perpetual Trustees Consolidated
Limited retires or is removed as Trustee of the Series Trust, then any
substitute Trustee and includes the Trust Manager when acting as Trustee of the
Series Trust.
Page 24 of 33
VALUER
means a person who is a member of the Australian Institute of Valuers and Land
Economists in the real property Valuation category.
VALUATION
means a written report as to value from a person who is at the time of provision
of the report a Valuer.
YOU AND YOUR
means:
o in relation to any Insured Mortgage that has been legally or equitably
assigned to the Trustee (and has not been reassigned to Xx.Xxxxxx Bank
Limited), the Trustee; and
o in relation to any other Insured Mortgage, Xx.Xxxxxx Bank Limited.
You includes any Mortgage Manager, Loan Originator and any Trust Manager, from
time to time except where inconsistent with the context.
WE, US AND OUR
means PMI Mortgage Insurance Ltd., ABN 70 000 000 000, and its successors and
assigns.
The singular includes the plural and vice versa.
A reference to anything includes the whole and each part of it.
Unless defined to the contrary in the Agreement, terms in the Agreement which
are defined in the Series Trust (Including terms defined by incorporation by
reference to other documents) have the same meaning in the Agreement.
22. ASSIGNMENTS RELATED TO SECURITISATION
Despite clause 8, any legal or equitable assignment of any Agreement:
o from Xx.Xxxxxx Bank Limited to the Trustee;
o from the Trustee to Xx.Xxxxxx Bank Limited or any trust of which
Xx.Xxxxxx Bank Limited is a beneficiary,
in accordance with the Series Trust, does not require Our consent and no fee is
payable in relation to any such assignment.
Page 25 of 33
Any assignment pursuant to this clause 22 shall be without prejudice to any of
Our rights against either Xx.Xxxxxx Bank Limited or the Trustee prior to, at the
time of or after the assignment.
Xx.Xxxxxx Bank Limited must:
o from time to time, within seven (7) business days of receipt of Our
written request, provide details to Us in writing of any such
assignments; and
o promptly provide to Us a written report at the end of each period of
six (6) months commencing from the Closing Date of the details of any
such assignment/s occurring in the previous six (6) month period
during the term of the Agreement.
23. SERVICER AS MORTGAGE MANAGER
The Servicer will be the Mortgage Manager in respect of Loan Accounts held by
the Trustee as trustee of the Series Trust and until the Insured Mortgages are
legally assigned to the Trustee, the Mortgage Manager is responsible for day to
day management of the Loan Accounts.
We acknowledge and consent to Xx.Xxxxxx Bank Limited acting as Mortgage Manager.
Notwithstanding clause 7, We cannot require the Trustee to replace the Servicer
as Mortgage Manager or to appoint a new Mortgage Manager except to the extent
that, following a Servicer default in relation to the Series Trust, the Trustee
is entitled to appoint a new Servicer in relation to the Series Trust and the
Mortgage Manager proposed by Us is able to be appointed as Servicer in relation
to the Series Trust and provided that appointment would not lead to the
withdrawal or downgrade of, or conditions being imposed in respect of, the
rating of any debt instruments issued by the Trustee provided that:
o the Trustee must give Us written notice of any circumstances or events
occurring which entitle the Trustee to issue the Servicer a notice
terminating the rights and obligations of the Servicer in the relation
to the Series Trust (whether or not such a notice is actually issued)
within 7 days of the Trustee becoming actually aware (as determined in
accordance with the Series Trust) of such circumstances or events; and
o the Trustee must give Us a copy of any such notice issued to the
Servicer under the Series Trust within 7 days of such notice being
issued to the Servicer.
Page 26 of 33
24. PAYMENT OF ONCE-ONLY FEE
The once-only fee referred in clause 6 must be paid by Xx.Xxxxxx Bank Limited.
Any additional fee payable under clause 9 must be paid by Xx.Xxxxxx Bank
Limited. This clause applies regardless of any assignment by Xx.Xxxxxx Bank
Limited to the Trustee of the Agreement.
25. TRUSTEE PROVISIONS
(A) The Trustee enters into the Agreement only its capacity as Trustee of the
Series Trust and in no other capacity. A liability arising under or in
connection with the Agreement is limited to and can be enforced against the
Trustee only to the extent to which it can be satisfied out of the property
of the Series Trust (as the case may be) out of which the Trustee is
actually indemnified for the liability. This limitation of the Trustee's
liability or obligations under the Agreement applies despite any other
clause of the Agreement other than clause 25(c) and extends to all
liabilities and obligations in any way connected with any representation,
warranty, conduct, omission, agreement or transaction related to the
Agreement.
(B) The parties other than the Trustee may not xxx the Trustee in any capacity
other than as Trustee of the Series Trust, Including seeking the
appointment of a receiver (except in relation to the property of the Series
Trust, as the case may be), a liquidator, an administrator or any similar
person to the Trustee or prove in any liquidation, administration or
arrangement of, or affecting the Trustee (except in relation to the
property of the Series Trust, as the case may be).
(C) This clause 25 shall not apply to any obligation or liability of the
Trustee to the extent that the Trustee is not actually indemnified for the
obligation or liability as a result of the Trustee's fraud, negligence or
Default.
(D) For the purposes of subclause 25(c), it is agreed that the Trustee cannot
be regarded as being fraudulent, negligent or in Default to the extent to
which any failure by the Trustee to satisfy its liabilities or obligations
or breach of representation or warranty under the Agreement has been caused
or contributed to by a failure of Xx.Xxxxxx Bank Limited, the Servicer, the
Loan Originator, Mortgage Manager or the Trust Manager (being the Manager
referred to in the Supplementary Terms Notice) or any other person (other
than a person whose acts or omissions the Trustee is liable for in
accordance with any transaction document in relation to the Series Trust)
to fulfil its obligations in relation to the Series Trust, or any other act
or omission of
Page 27 of 33
Xx.Xxxxxx Bank Limited, the Servicer, the Loan Originator, the Mortgage
Manager or Trust Manager or any person.
(E) The Trustee (in its capacity as trustee of the Series Trust) is not obliged
to do or refrain from doing anything under the Agreement (Including incur
any liability) unless the Trustee's liability is limited in the same manner
as set out in this clause 25. For the avoidance of doubt, the Trustee in
its capacity as Trustee of the Series Trust agrees and acknowledges that
its liability for any commitment or obligation it has entered into under
this Agreement is limited in a manner which is consistent with this clause
25.
(F) For the avoidance of doubt, nothing in this clause affects Our rights under
this Agreement, or under the Insurance Contracts Xxx 0000, to avoid or
reduce a claim which may be made by or on behalf of, the Trustee under the
Agreement (or to obtain a declaration or any order to that effect).
26. GOVERNING LAW
The Agreement is governed by and construed in accordance with the laws of New
South Wales.
JURISDICTION
Each party irrevocably and unconditionally:
(a) (Submission to jurisdiction): submits to the non-exclusive
jurisdiction of the courts of New South Wales;
(b) (Waiver of inconvenient forum): waives any objection it may now or in
the future have to the bringing of proceedings in those courts and any
claim that any proceedings have been brought in an inconvenient forum;
and
(c) (Service of notice): agrees, without preventing any other mode of
service permitted by law, that any document required to be served in
any proceedings may be served in the manner in which notices and other
written communications may be given under clause 20.
27. PRIVACY LEGISLATION COMPLIANCE
In respect of each Insured Mortgage the Insured Lender:
o warrants that it has complied with the Privacy Act;
Page 28 of 33
o acknowledges that if it gives personal information about a Borrower or
Guarantor to Us in circumstances where that Borrower or Guarantor has
not given all necessary consents, We are at risk of contravening the
Privacy Act;
o will, on request by Us, provide Us with such information as We
reasonably require to verify compliance with Your obligations under
the Privacy Act in relation to an Insured Mortgage;
o must disclose to Us as soon as practicable if it becomes aware of a
breach of its obligations under the Privacy Act in respect of an
Insured Mortgage; and
o agrees to indemnify Us and keep Us indemnified against any injury,
cost, loss, damage, claim or liability which We may suffer, directly
or indirectly, as a result of it failing to comply with this clause
27, including but not limited to any injury, loss, cost, damage, claim
or liability arising out of an action brought by an individual against
Us pursuant to, in connection with, or arising from the Privacy Xxx
0000.
In the clause "Privacy Act" means the Privacy Xxx 0000, as amended by the
Privacy Amendment (Private Xxxxxx) Xxx 0000 (including but not limited to a
National Privacy Principle set out in that Act).
The indemnity in this clause 27 is a continuing obligation, separate and
independent from the other obligations of the parties, and survives termination,
completion or expiration of this Agreement.
It is not necessary for a party to incur expense or to make any payment before
enforcing the right of indemnity conferred by this Agreement.
SIGNED as an agreement this 13th day of March 2007
THE COMMON SEAL OF PMI MORTGAGE )
INSURANCE LTD )
Was placed on this Deed in )
accordance with the terms of its )
Constitution in the presence of: )
/s/ Xxx Xxxxxx /s/ Xxxx XXxxxxxxx
------------------------------------- ----------------------------------------
Director Director/Secretary
Page 29 of 33
Signed for and on behalf of XX.XXXXXX )
BANK LIMITED ABN 92 055 513 070 by )
its Attorneys under power of attorney )
dated )
)
/s/ Xxxxxx Xxxxx
-------------------------------------
ATTORNEY
Print Name:
Position Held:
/s/ Xxxxx Xxxxxxxx
-------------------------------------
WITNESS
Print Name: Xxxxx Xxxxxxxx
Signed Sealed and Delivered on behalf
of
PERPETUAL TRUSTEES CONSOLIDATED
LIMITED IN ITS CAPACITY AS TRUSTEE OF
THE CRUSADE GLOBAL TRUST NO. 1 OF
2007 by its Attorney pursuant to
Power of Attorney dated 13 March 2007
of which the Attorney has no notice
of its revocation in the presence of:
/s/ Xxxxxx Ruver /s/ Xxxx Xxxxx
------------------------------------- ----------------------------------------
SIGNATURE OF ATTORNEY signature of witness
XXXXXX RUVER Xxxx Xxxxx
PRINT NAME OF ATTORNEY Name of witness
Page 30 of 33
SCHEDULE OF VARIABLES
INSURED LENDER:
Xx.Xxxxxx Bank Limited
INSURED TRUSTEE:
Perpetual Trustees Consolidated Limited in its capacity as trustee of the
Crusade Global Trust No. 1 of 2007
INSURED MORTGAGE
These are specified in Exhibit A to the Agreement
CLOSING DATE:
15 March 2007
ELIGIBILITY CRITERIA:
As attached to this Schedule of Variables
SERVICER:
Xx.Xxxxxx Bank Limited
SERIES TRUST:
Crusade Global Trust No. 1 of 2007
Page 31 of 33
ATTACHMENT TO SCHEDULE OF VARIABLES
In this document, terms appearing in Title Case have the meaning given them by
the Agreement between PMI Mortgage Insurance Ltd, Xx.Xxxxxx Bank Limited and
Perpetual Trustees Consolidated Limited to which this document is attached.
ELIGIBILITY CRITERIA
As of the Closing Date, each Loan must satisfy the following eligibility
criteria:
(i) it is sourced from the Insured Lender's general portfolio of
residential mortgage loans;
(ii) it is secured by a mortgage which constitutes a first ranking
mortgage over residential (owner-occupied or investment) land
situated in capital city metropolitan areas or regional centres in
Australia which is or will be registered under the legislation
relating to registration of real property in that State or
Territory, or where a mortgage is not, or will not be when
registered, a first ranking mortgage, the Loan includes an offer by
the Insured Lender to the Borrower in relation to all prior ranking
registered mortgages;
(iii) it is secured by a mortgage over a Mortgaged Property which has
erected on it a residential dwelling and which is required under the
terms of the mortgage to be covered by general insurance by insurers
approved by the Insured Lender and Us;
(iv) it has an LVR less than or equal to 60% for Low Doc Loans; or less
than or equal to 80% of all other loans;
(vi) the Borrower does not owe more than A$1,500,000;
(vii) the Borrower is required to repay such loan within 30 years of the
Closing Date;
(viii) no payment from the Borrower is in arrears for more than 31
consecutive days;
(ix) the sale of an equitable interest in it, or the sale of an equitable
interest in any related mortgage or guarantee, does not contravene
or conflict with any law;
Page 32 of 33
(x) together with the related mortgage, it has been or will be stamped,
or has been taken by the relevant stamp duty authority to be
stamped, with all applicable duty;
(xi) it amortises in full by the end of its term;
(xii) is fully drawn as at its origination;
(xiii) it complies in all material respects with applicable laws, including
the Consumer Credit Code;
(xiv) it is subject to the terms and conditions of one of the following of
the Insured Lender's products:
a. the 'Fixed Rate Loan' product, which bears a fixed rate of
interest for up to 5 years as of the time of fixing;
b. the 'Essential Home Loan' product;
c. the 'Great Australian Home Loan' Product;
d. the 'Standard Variable Rate Home Loan' product, including sub
products of 'Loyalty Loans', which impose a reduced rate of
interest where the Borrower has made repayments to the Insured
Lender in respect of other home loans for 5 years or more;
e. the 'Discount Variable Rate Home Loan' and 'Introductory Fixed
Rate Home Loan' products, which are available only to Borrowers
who have not previously obtained a loan from the Insured
Lender.
f. the 'LowDoc Home Loan' where Borrowers provide signed
affordability statements.
Page 33 of 33