Crusade Euro Trust
Servicing Agreement
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St. Xxxxxx Bank Limited (Servicer)
Crusade Management Limited (Manager)
National Mutual Trustees Limited (Trustee)
Transaction Description here
Xxxxx Xxxxx & Xxxxxxx
The Chifley Tower
0 Xxxxxxx Xxxxxx
Xxxxxx XXX 0000
Xxxxxxxxx
Tel 00 0 0000 0000
Fax 00 0 0000 0000
(Copyright) Copyright Xxxxx Xxxxx & Xxxxxxx 1999
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Crusade Euro Trust Servicing Agreement Xxxxx Xxxxx & Xxxxxxx
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Table of Contents
1. Definitions and interpretation 1
1.1 Definitions 1
1.2 Interpretation 3
1.3 Limitation of Trustee's Liability 3
1.4 Supplementary Terms Notice 4
1.5 Knowledge of Trustee 4
1.6 Knowledge of Servicer 4
2. Appointment of servicer 4
2.1 Appointment 4
2.2 General duties and standard of care 4
2.3 Powers 4
2.4 Records 5
2.5 Servicer's power to delegate 5
2.6 Servicer's power to appoint advisers 6
2.7 Legal title 6
2.8 Transfer of custody of Relevant Documents 6
2.9 License to enter Servicer's premises 6
3. Undertakings 6
3.1 Servicing Undertakings 6
3.2 Undertakings of Servicer in its capacity as an Approved Seller 11
3.3 Material Adverse Effect 12
4. Procedures manual 12
4.1 Trustee bound by acts of Servicer 12
4.2 No liability for compliance 12
4.3 Amendments to Procedures Manual 12
5. Collection and remittance of moneys 12
5.1 Collection of moneys 12
5.2 Remittances 13
5.3 Remittances to Trustee 13
5.4 Payments and Computations, etc. 14
5.5 Report by Servicer 14
5.6 No Right of Set-Off 14
6. Servicer fees 14
6.1 Fee 14
6.2 Expenses of Servicer 14
7. Termination 15
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Page (i)
Crusade Euro Trust Servicing Agreement Xxxxx Xxxxx & Xxxxxxx
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7.1 Expiry of Term 15
7.2 Servicer Transfer Event 15
7.3 Resignation 15
7.4 Survival 16
7.5 Release of outgoing Servicer 16
7.6 New Servicer to execute deed 16
7.7 Settlement and discharge 16
8. Indemnity 16
8.1 Indemnity 17
8.2 Limitation of liability 17
8.3 No liability for acts of certain persons 17
8.4 No liability for loss etc 17
8.5 Method of claiming under indemnity 17
8.6 Time of Payment 18
9. Representations and warranties 18
9.1 Representations and Warranties 18
9.2 Reliance 18
9.3 Survival of Representations and Indemnities 18
10. The servicer may act as banker 18
11. Administrative provisions 18
11.1 Notices 18
11.2 Governing Law and Jurisdiction 18
11.3 Assignment 19
11.4 Amendment 19
11.5 Severability clause 19
11.6 Costs and Expenses 19
11.7 Waivers: Remedies Cumulative 19
SCHEDULE 1 21
RECEIVABLES REGISTER INFORMATION 28
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Page (ii)
Date
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Parties
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1. Xx.Xxxxxx Bank Limited (ACN 055 513 070) incorporated in New South
Wales of 0-00 Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxxx Xxxxx 0000
(Servicer);
2. Crusade Management Limited (ACN 072 715 916) incorporated in New South
Wales of 0-00 Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxxx Xxxxx 0000
(Manager); and
3. National Mutual Trustees Limited (ACN 004 029 841) of Xxxxx 0, 00
Xxxxxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxxx, Xxxxxxxx 0000 in its capacity as
trustee of each Relevant Trust (Trustee)
Recitals
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A The Trustee and the Manager agree to retain the Servicer to provide the
Services in relation to the Receivables and Receivable Rights for
certain Trusts.
B The Trustee and the Manager propose that the Servicer undertake the
Services in relation to those Receivables and Receivable Rights that it
sells to the Trustee for so long as the Servicer holds legal title to
those Receivables and Receivable Rights.
C The parties acknowledge that the Servicer is engaged by this Agreement
only to service the Receivables and the Receivable Rights and that it
is not engaged in any way to manage the Relevant Trust or the Assets of
the Relevant Trust, which task is that of the Manager under the Master
Trust Deed.
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IT IS AGREED as follows
1. Definitions and interpretation
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1.1 Definitions
In this Agreement, terms defined in the Master Trust Deed or a
Supplementary Terms Notice in relation to a Relevant Trust have the
same meaning and the following definitions apply unless the context
otherwise requires.
Civil Penalty Payment has the meaning given in Section 30.15 of the
Master Trust Deed.
Eligible Servicer means any suitably qualified person whose appointment
as Servicer under this Agreement will not materially prejudice the
interests of the Noteholders and, if required by the Mortgage Insurance
Policy, approved by the Mortgage Insurer.
Law means any statute, rule, regulation, ordinance, order or decree of
any Government Agency, and includes, without limitation the Consumer
Credit Legislation and the Code of Banking Practice.
Master Trust Deed means the Master Trust Deed between the Trustee, the
Manager and the Servicer dated on or about the date of this Agreement.
Material Default means, with respect to a Receivable:
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(a) a failure by an Obligor to pay any amount payable pursuant to
the relevant Receivable which failure causes the Receivable to
be in Arrears and which failure to pay continues for a period
of 90 days; or
(b) the occurrence of an event of default, howsoever described
(other than a failure by an Obligor to pay an amount under the
relevant Receivable) under that Receivable or any related
Receivable Right unless the Servicer reasonably determines
that such event of default is of a minor or technical nature
and will not result in a Material Adverse Effect.
Procedures Manual means, in relation to a Portfolio of Receivables,
those policies and procedures of the Servicer relating to the
origination, servicing and enforcement of those Receivables, Receivable
Securities and Related Securities as those policies and procedures are
amended in accordance with this Agreement, and applied from time to
time in the Servicer's ordinary course of business.
Receivable has the meaning in the Master Trust Deed, but relates only
to Receivables held by the Trustee under a Relevant Trust.
Receivable Rights has the meaning in the Master Trust Deed, but relates
only to Receivable Rights held by the Trustee under a relevant Trust.
Receivable Securities has the meaning in the Master Trust Deed, but
relates only to Receivable Securities held by the Trustee under a
Relevant Trust.
Receivables Register means a register of Receivables for each Trust and
Warehouse Trust maintained by the Servicer and stored on computer disk
or other electronic form. In relation to Mortgages it shall contain the
information in respect of each Mortgage set out in Schedule 1.
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 a
Supplementary Terms Notice.
Services means the services provided or to be provided by the Servicer
under this Agreement.
Servicer Transfer Event means the occurrence of any of the following:
(a) an Insolvency Event occurs with respect to the Servicer;
(b) the Servicer fails to pay any amount in accordance with any
Transaction Document within 10 Business Days of receipt of a
notice to do so from either the Trustee or the Manager;
(c) the Servicer fails to comply with any of its other obligations
under any Transaction Document and such action has had, or, if
continued will have, a Material Adverse Effect (as determined
by the Trustee) and, if capable of remedy, the Servicer does
not remedy that failure within 30 days after the earlier of:
(i) the Servicer becoming aware of that failure; and
(ii) receipt of a notice from either the Trustee or the
Manager;
(d) any representation, warranty or certification made by the
Servicer is incorrect when made and is not waived by the
Trustee or, if capable of remedy, remedied to the Trustee's
reasonable satisfaction within 45 days after notice from the
Trustee, and the Trustee determines that breach would have a
Material Adverse Effect; or
(e) if it is unlawful for the Servicer to perform the Services.
Supplementary Terms Notice means each Supplementary Terms Notice dated
on or after the date of this Agreement relating to a Relevant Trust.
Term means the period from the date of this Agreement until the earlier
of:
(a) the date on which this Agreement is terminated pursuant to
clause 7.2;
(b) the date which is one month after the Notes in relation to
each Relevant Trust have been redeemed in full in accordance
with the Transaction
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Documents and the Trustee ceases to have any obligations to
any Creditor in relation to any Trust;
(c) the date on which the Trustee replaces the Servicer with an
Eligible Servicer; and
(d) the date on which the Servicer is replaced after resigning
under clause 7.3.
1.2 Interpretation
The provisions of clause 1.2 of the Master Trust Deed apply to this
Agreement, as if set out in full, and on the basis that a reference in
clause 1.2(e), (f), (g), (k) or (l) to "this Deed" is a reference to
this Agreement.
1.3 Limitation of Trustee's Liability
(a) General
Clause 30 of the Master Trust Deed applies to the obligations
and liabilities of the Trustee and the Manager under this
Agreement.
(b) Liability of Trustee limited to its right to indemnity
(i) The Trustee enters into this Agreement only in its
capacity as trustee of each Trust and in no other
capacity (except where the Transaction Documents
provide otherwise). Subject to paragraph (iii) below,
a liability arising under or in connection with this
Agreement or a Trust can be enforced against the
Trustee only to the extent to which it can be
satisfied out of the assets and property of the
relevant Trust which are available to satisfy the
right of the Trustee to be exonerated or indemnified
for the liability. This limitation of the Trustee's
liability applies despite any other provision of this
Agreement and extends to all liabilities and
obligations of the Trustee in any way connected with
any representation, warranty, conduct, omission,
agreement or transaction related to this Agreement or
a Trust.
(ii) Subject to paragraph (iii) below, no person (including
any Relevant Party) may take action against the
Trustee in any capacity other than as trustee of the
relevant Trust or seek the appointment of a receiver
(except under the Security Trust Deed), or a
liquidator, an administrator or any similar person to
the Trustee or prove in any liquidation,
administration or arrangements of or affecting the
Trustee.
(iii) The provisions of this clause 1.3 shall not apply to
any obligation or liability of the Trustee to the
extent that it is not satisfied because under a
Transaction Document or by operation of law there is a
reduction in the extent of the Trustee's
indemnification or exoneration out of the Assets of
the relevant Trust as a result of the Trustee's fraud,
negligence, or Default.
(iv) It is acknowledged that the Relevant Parties are
responsible under this Agreement or the other
Transaction Documents for performing a variety of
obligations relating to each Trust. No act or omission
of the Trustee (including any related failure to
satisfy its obligations under this Agreement) will be
considered fraud, negligence or Default of the Trustee
for the purpose of paragraph (iii) above to the extent
to which the act or omission was caused or contributed
to by any failure by any Relevant Party or any person
who has been delegated or appointed by the Trustee in
accordance with the Transaction Documents to fulfil
its obligations relating to a Trust or by any other
act or omission of a Relevant Party or any such
person.
(v) In exercising their powers under the Transaction
Documents, each of the Trustee, the Security Trustee
and the Noteholders
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must ensure that no attorney, agent, delegate,
receiver or receiver and manager appointed by it in
accordance with this Agreement or any other
Transaction Documents has authority to act on behalf
of the Trustee in a way which exposes the Trustee to
any personal liability and no act or omission of any
such person will be considered fraud, negligence, or
Default of the Trustee for the purpose of paragraph
(iii) above.
(vi) In this clause, Relevant Parties means each of the
Manager, the Servicer, the Custodian, the Calculation
Agent, each Paying Agent, the Note Trustee and the
provider of any Support Facility.
(vii) Nothing in this clause limits the obligations
expressly imposed on the Trustee under the Transaction
Documents.
1.4 Supplementary Terms Notice
This Agreement is subject to the Supplementary Terms Notice for each
Relevant Trust. In case of any inconsistency, the relevant
Supplementary Terms Notice shall prevail.
1.5 Knowledge of Trustee
In relation to any Trust, the Trustee will be considered to have
knowledge or notice of or be aware of any matter or thing if the
Trustee has knowledge, notice or awareness of that matter or thing by
virtue of the actual notice or awareness of the officers or employees
of the Trustee who have day to day responsibility for the
administration of that Trust.
1.6 Knowledge of Servicer
For the purposes of this Agreement, the Servicer will only be
considered to have knowledge, notice of or to be aware of any thing if
the Servicer has knowledge, notice or awareness of that thing by virtue
of the actual knowledge, notice or awareness of the officers or
employees of the Servicer who have day to day responsibility for the
carrying its obligations under this Agreement.
2. Appointment of servicer
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2.1 Appointment
The Servicer is hereby appointed to perform the Services during the
Term for each Trust in relation to which the Servicer is specified as,
and agrees to act as, the Servicer in the relevant Supplementary Terms
Notice. By executing a Supplementary Terms Notice, the Servicer shall
be taken to have accepted that appointment, and agreed to perform the
Services in relation to that Trust in accordance with this Agreement.
2.2 General duties and standard of care
The Servicer shall service the Receivables:
(a) in accordance with this Agreement;
(b) to the extent not provided in this Agreement, in accordance
with the applicable Procedures Manual as that is interpreted
and applied by the Servicer in the ordinary course of its
business; and
(c) to the extent not covered by clauses 2.2(a) and (b), by
exercising the degree of diligence and care expected of an
appropriately qualified Servicer of the relevant financial
products.
2.3 Powers
Subject to clauses 2.2, 3.1(i) and 3.3, the Servicer has the express
power to the extent such action will not cause a Material Adverse
Effect (that is, an event which will materially and adversely affect
the amount of any payment to be made
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to any Noteholder, or will materially and adversely affect the timing
of such payment):
(a) to waive any fees and break costs which may be collected in
the ordinary course of servicing the Receivables or arrange
the rescheduling of interest due and unpaid following a
default under any Receivables;
(b) in its discretion, to waive any right in respect of any
Receivables and Receivable Securities in the ordinary course
of servicing the Receivables and Receivable Securities
(including in accordance with its normal collection
procedures); and
(c) to grant an extension of maturity beyond 30 years from the
date any Receivable that relates to a mortgage loan was made,
when required to do so by Law or a Government Agency. The
restriction on granting extensions that will not have a
Material Adverse Effect shall not apply where the extension is
required by Law or a Government Agency.
2.4 Records
(a) The Servicer will maintain the Data Base used by it as a
master record of Receivables and Receivable Rights in relation
to each Relevant Trust.
(b) Each Receivable will be electronically tagged so that all
related Collections and performance statistics (the nature of
which shall be as mutually agreed from time to time by the
Servicer, the Manager and the Trustee) for that Receivable
will be readily identified.
2.5 Servicer's power to delegate
Without in any way affecting the generality of the above, the Servicer
may in carrying out and performing its duties and obligations contained
in this Agreement:
(a) (delegate to employees) delegate to any of its officers and
employees all Services (whether or not requiring or involving
the Servicer's judgment or discretion);
(b) (appoint attorneys or subcontract) appoint any person to be
its attorney or agent or delegate to or subcontract with any
person for such purposes and with such powers, authorities and
discretions (not exceeding those vested in the Servicer) as
the Servicer thinks fit with:
(i) power for the attorney or agent to sub-delegate any
such powers, authorities or discretions;
(ii) power to authorise the issue in the name of the
Servicer of documents bearing facsimile signatures of
the Servicer or of the attorney, agent or delegate
(either with or without proper manuscript signatures
of their officers); and
(iii) provisions for the protection and convenience of those
dealing with any such attorney, agent or delegate as
they may think fit; and
(c) (suspend agents and sub-agents) supersede or suspend any such
attorney, agent or delegate for such cause or reason as the
Servicer may in its sole discretion think sufficient with or
without assigning any cause or reason and either absolutely
or for such time as it may think proper,
but despite any delegation or appointment under the above paragraphs
of this clause, the Servicer shall remain liable for the performance
of the Services in accordance with this Agreement and for the acts or
omissions of any officer, employee, attorney, agent, delegate,
sub-delegate or sub-agent and shall be solely responsible for the
fees and expenses of such officer, employee, attorney, agent,
delegate, sub-delegate or sub-agent.
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2.6 Servicer's power to appoint advisers
In accordance with its ordinary course of business, the Servicer may
appoint and engage and act upon the opinion, advice or information
obtained from any valuers, solicitors, barristers, accountants,
surveyors, property managers, real estate agents, contractors,
qualified advisers and such other persons as may be necessary, usual or
desirable for the purpose of enabling the Servicer properly to exercise
and perform its duties and obligations under this Agreement.
2.7 Legal title
The Servicer agrees that upon being directed to do so by the Trustee
following a Title Perfection Event for a Relevant Trust, it will
promptly take all action to perfect the Trustee's legal title to the
relevant Receivables and Receivable Rights by:
(a) giving written notice of the Trustee's interest to any Obligor
or Mortgagor;
(b) preparing, lodging and registering any Transfer of Receivable
Security;
(c) taking any other action required or permitted by law to
perfect such legal title;
(d) delivering all Relevant Documents which it has in its
possession and procuring the Custodian to deliver all other
Relevant Documents for that Trust to or to the order of the
Trustee. If the Servicer or the Custodian (as the case may be)
has not done so within 10 Business Days (or such longer period
as the Trustee permits in its reasonable discretion), pursuant
to the Custodian Agreement, the Trustee must enter any
premises where those Relevant Documents are kept, take
possession of and remove those Relevant Documents. The
Servicer shall assist the Trustee in doing so; and
(e) taking any other action which the Trustee requires it to do.
2.8 Transfer of custody of Relevant Documents
If a Servicer Transfer Event occurs and is subsisting, the Servicer
immediately must deliver all Relevant Documents which it has in its
possession to the Trustee, or as it directs. If the Servicer has not
done so within 10 Business Days (or such longer period as the Trustee
in its reasonable discretion permits) the Trustee must enter any
premises where the Relevant Documents are kept, take possession of and
remove the Relevant Documents. The Servicer shall assist in doing so
and will take or perform any acts which the Trustee reasonably directs
it to do in relation to the Trustee taking possession of and removing
the Relevant Documents. If the Trustee does not have possession of all
of the Relevant Documents within that period it may, to the extent that
it has information available to it to do so, lodge caveats in relation
to the Receivables and Receivable Rights for which it does not hold the
Relevant Documents.
2.9 License to enter Servicer's premises
The Servicer irrevocably licenses the Trustee to enter onto its
premises for the purpose of taking possession of, and removing, any
Relevant Documents which the Servicer has in its possession in
accordance with this Agreement.
3. Undertakings
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3.1 Servicing Undertakings
The Servicer undertakes that at all times during the Term it will:
(a) (notice of default) give notice in writing to the Trustee and
each Designated Rating Agency of it becoming aware of the
occurrence of any Servicer Transfer Event;
(b) (compliance with law)
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(i) maintain in effect all qualifications, consents,
licenses, permits, approvals, exemptions, filings and
registrations as may be required under any applicable
law in order properly to service the Receivables and
Receivable Rights and to perform or comply with its
obligations under this Agreement;
(ii) comply with all Laws in connection with servicing the
Receivables and Receivable Rights where failure to do
so would have a Material Adverse Effect; and
(iii) comply with the Consumer Credit Legislation in
connection with servicing the Receivables and
Receivable Rights so that the Trustee does not
personally or in its capacity as trustee of the Trust
become liable to pay any Civil Penalty Payments.
(c) (Relevant Documents to Custodian) Unless the Servicer requires
a Relevant Document to perform its duties as Servicer in
relation to the related Receivable, or otherwise comply with
its obligations under the Transaction Documents, each Relevant
Document shall be delivered promptly to the Custodian to be
dealt with in accordance with the Custodian Agreement.
(d) (Collections)
(i) in relation to Receivables of which the Servicer (as
an Approved Seller) is the legal owner, collect all
moneys due under those Receivables and the Receivable
Rights; and
(ii) in relation to Receivables of which the Trustee is
the legal owner, collect all moneys due under those
Receivables and Receivables Rights,
in accordance with the standards specified in clause 2.2, and
pay them into the relevant Collection Account not later than
the time that Servicer would be required to do so under clause
5;
(e) (Material Default) if a Material Default occurs in respect to
a Receivable, take such action in accordance with the
Servicer's normal enforcement procedures to enforce the
relevant Receivable and the Receivable Right to the extent
that the Servicer determines that enforcement procedures
should be taken;
(f) (Insurance Policies)
(i) act (both in its capacity as Servicer and Approved
Seller) in accordance with the terms of any Mortgage
Insurance Policies;
(ii) not do or omit to do anything (both in its capacity
as Servicer and Approved Seller) which, or the
omission of which, as the case may be, could be
reasonably expected to prejudicially affect or limit
its rights or the rights of the Trustee under or in
respect of a Mortgage Insurance Policy to the extent
those rights relate to a Receivable and the
Receivable Rights;
(iii) promptly make a claim under any Mortgage Insurance
Policy when it is required to do so in accordance
with:
(A) the Procedures Manual;
(B) the Transaction Documents; and
(C) the terms of the Mortgage Insurance Policy;
(iv) promptly notify the Manager when circumstances arise
that would entitle it to make a claim under a
Mortgage Insurance Policy; and
(v) in respect of the HLIC Policy (as defined in the
Supplementary Terms Notice for Crusade Euro Trust No.
1 of 1998), perform the obligations and indemnify the
Trustee in respect of the
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following provisions as if the following amendments
were made to the HLIC Policy:
(A) in the section headed "DUTY OF DISCLOSURE" on
pages 2 and 3, wherever the word "Insured"
appears, it shall be replaced with the words
"First Insured (as Servicer)";
(B) in the sixth and seventh lines of clause 3.6(a),
the words "then the Insured shall immediately
advise HLIC and promptly pay to HLIC any
overpayment by HLIC" shall be replaced with the
words "then the First Insured (as Servicer)
shall immediately advise the Trustee and HLIC
and, after receiving the appropriate funds from
the Trustee (if any), promptly pay to HLIC any
overpayment by HLIC";
(C) in the fifth and sixth lines of clause 4.4, the
words "then the Insured shall immediately advise
HLIC of that fact and promptly repay to HLIC the
difference" shall be replaced with the words
"then the First Insured (as Servicer) shall
immediately advise the Trustee and HLIC of that
fact and, after receiving the appropriate funds
from the Trustee (if any), promptly repay to
HLIC the difference";
(D) in clause 5:
(1) wherever the word "Insured" (other than as
"Insured Loan" or "Insured Loan Contract")
appears, it shall be replaced with the
words "First Insured (as Servicer)";
(2) wherever the words "HLIC requests" and
"HLIC reasonably requests" appear, they
shall be replaced with "HLIC requests of
the Trustee" and "HLIC reasonably requests
of the Trustee", respectively; and
(3) wherever the words "request from HLIC"
appear, they shall be replaced with
"request from HLIC to the Trustee";
(E) in clause 6.1, the words "The Insured" in the
first line shall be replaced with the words "The
First Insured (as Servicer)";
(F) in clause 6.2(a):
(1) the word "Insured" in the first line shall
be replaced with "Insured, who may request
the First Insured alone (as Servicer)"; and
(2) the words "and the First Insured (as
Servicer) shall not unreasonably refuse to
comply with the Trustee's request" shall be
added to the end of the clause;
(G) in clause 6.2(b), the words in the second line
"HLIC may require the Insured" shall be replaced
with "HLIC may require the Insured, who may
direct the First Insured alone (as Servicer) and
the First Insured (as Servicer) shall not
unreasonably refuse to comply with the Trustee's
request";
(H) in clause 6.3:
(1) wherever the word "Insured" (other than as
"Insured Loan" or "Insured Loan Contract")
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appears, it shall be replaced with the word
"First Insured (as Servicer)"; and
(2) wherever the word "HLIC" appears, it shall
be replaced with the word "HLIC and/or the
Trustee (as the case may be)";
(I) in clause 9.2, paragraphs (d) - (i) inclusive
shall apply solely to the First Insured (as
Servicer);
(J) in clause 12, the word "Insured" at the end of
the second line shall be replaced with "First
Insured (as Servicer)";
(g) (Mortgaged Property Insurance) use reasonable endeavours by
reference to Australian market practice to ensure that a
current policy of general insurance is maintained in respect
of each Mortgaged Property;
(h) (no Security Interests) not consent to the creation or
existence of any Security Interest in favour of a third party
in relation to any Mortgaged Property in connection with a
Receivable and the Receivable Rights:
(i) without limiting paragraph (h)(ii), unless priority
arrangements are entered into with that third party
under which the third party acknowledges that the
Receivable and Receivable Rights ranks ahead in
priority to the third party Security Interest on
enforcement for an amount not less than the Unpaid
Balance of the Receivable plus such other amount as
the Servicer determines in accordance with the
Procedures Manual or its ordinary course of business;
or
(ii) which would rank before or pari passu with the
relevant Receivable and Receivable Rights;
(i) (release of debt or vary terms) not, except as required by
Law, release an Obligor from any amount owing in respect of a
Receivable or otherwise vary or discharge any Receivable or
Receivable Right or enter into any agreement or arrangement
which has the effect of altering the amount payable in respect
of a Receivable or Receivable Right where it would have a
Material Adverse Effect;
(j) (binding provisions and orders of a competent authority)
release any Receivable or Receivable Right, reduce the amount
outstanding under or vary the terms of any Receivable or grant
other relief to an Obligor, if required to do so by any Law or
if ordered to do so by a court, tribunal, authority, ombudsman
or other entity whose decisions are binding on the Servicer.
If the order is due to the Servicer breaching any applicable
Law then the Servicer must indemnify the Trustee for any loss
the Trustee may suffer by reason of the order. The amount of
the loss is to be determined by agreement with the Trustee or
failing this, by the Servicer's external auditors;
(k) (other miscellaneous things) attend to the stamping and
registration of all Relevant Documents for each Relevant Trust
(including documents which became Relevant Documents)
following any amendment, consolidation or other action, and in
the case of any registration of any Mortgage that registration
must result in the Mortgage having the ranking referred to in
the relevant eligibility criteria in the Supplementary Terms
Notice. In relation to any Mortgage that is not registered at
the relevant Closing Date, the Servicer shall ensure that it
is lodged for registration not later than 120 days after that
Closing Date;
(l) (setting the Interest Rate)
(i) the Servicer shall set the interest rate on the
Receivables in accordance with the requirements of
the Supplementary Terms Notice; and
(ii) subject to the relevant Supplementary Terms Notice,
if the Trustee has perfected its title to the
Receivables or Receivable
Page 9
Rights and the Trustee is entitled to vary the
interest rate in accordance with the terms of the
Receivables, the Servicer shall, in accordance with
the terms of the Receivables, set and maintain the
interest rate on the relevant Receivables at or above
the relevant Threshold Rate as advised by the Manager
in accordance with the Master Trust Deed and the
Supplementary Terms Notice and promptly notify the
relevant Obligors;
(m) (notification) notify:
(i) the Trustee and the Manager of any event which it
reasonably believes is likely to have a Material
Adverse Effect promptly after becoming aware of such
event; and
(ii) the Manager of anything else which the Manager
reasonably requires regarding any proposed
modification to any Receivable or Receivable Security
and the Services;
(n) (provide information and access on request) provide
information reasonably requested by the Trustee or the
Manager, with respect to all matters relating to each Relevant
Trust and the assets of the relevant Trust, and the Trustee or
the Manager believes reasonably necessary for it to perform
its obligations under the relevant Transaction Documents, and
upon reasonable notice and at reasonable times permit the
Trustee to inspect the Data Base in relation to each Relevant
Trust;
(o) (comply with other obligations) comply with all its
obligations under any Transaction Document to which it is a
party;
(p) (pay taxes) subject to receiving payment from, or being
reimbursed by, the relevant Obligor or being indemnified by
the Trustee, pay all Taxes that relate to the Services (other
than any Tax on or referable to the income of a Trust or of
the Servicer) or ensure those Taxes are paid or where such
Taxes are incurred due to the default or breach of duty by the
Servicer, pay those Taxes or ensure that those Taxes are paid;
(q) (not claim) not claim any Security Interest over any Asset;
(r) (comply with Supplementary Terms Notice) comply with any
undertaking specified as an additional Servicer undertaking in
a relevant Supplementary Terms Notice, including, without
limitation, providing the Manager with any information
referred to in that Supplementary Terms Notice;
(s) (update Receivables Register) update the Receivables Register
and give a copy to the Manager and the Trustee:
(i) within 3 months of the Closing Date for each Relevant
Trust;
(ii) if its holding company has a short term rating from
the Designated Rating Agency of not less than A-1+
from S&P, P-1 from Xxxxx'x or F1+ from Fitch, not
later than the last Business Day of each calendar
year during the Term;
(iii) if its holding company does not have such a rating,
on the last Business Day of each calendar quarter
during the Term; and
(iv) within 30 days of a written request by the Trustee.
(t) (switches) notify the Manager immediately of each request by
an Obligor to switch its Receivable to another product offered
by an Approved Seller; and
(u) (comply with Trust Back) apply any moneys it receives in
relation to any Other Secured Liability in accordance with the
relevant Trust Back in accordance with the directions of the
Trustee.
Page 10
3.2 Undertakings of Servicer in its capacity as an Approved Seller
The Servicer in its capacity as an Approved Seller undertakes that at
all times during the Term, and for so long as it is the legal owner of
any Receivable or Receivable Security, it will:
(a) (compliance with law)
(i) maintain in effect all qualifications, consents,
licences, permits, approvals, exemptions, filings and
registrations as may be required under any applicable
Law in relation to its ownership of any Receivable or
Receivable Right and to perform or comply with its
obligations under this Agreement; and
(ii) comply with all Laws in connection with any
Receivables and Receivable Rights, where failure to
do so would have a Material Adverse Effect;
(b) (comply with Supplementary Terms Notice) comply with any
undertaking specified in relation to it in its capacity as
Servicer in a relevant Supplementary Terms Notice and all
other Transaction Documents with respect to the relevant
Trust, including, without limitation, providing the Manager
with any information referred to in that Supplementary Terms
Notice;
(c) (Insurance Policies) act in accordance with the terms of any
Mortgage Insurance Policies, and not do or omit to do anything
which could be reasonably expected to prejudicially affect or
limit the rights of the Trustee under or in respect of a
Mortgage Insurance Policy to the extent those rights relate to
a Receivable and the Receivable Right;
(d) (no Security Interests) not consent to the creation or
existence of any Security Interest in favour of a third party
in relation to any Mortgaged Property in connection with a
Receivable and the Receivable Right:
(i) without limiting paragraph (d)(ii), unless priority
arrangements are entered in to with that third party
under which the third party acknowledges that the
Receivable and Receivable Right ranks ahead in
priority to the third party Security Interest on
enforcement for an amount not less than the Unpaid
Balance of the Receivable plus such other amount as
the Servicer (as an Approved Seller) determines in
accordance with the Procedures Manual or its ordinary
course of business; or
(ii) which would rank before or pari passu with the
relevant Receivable and Receivable Right;
(e) (release of debt or vary terms) not, except as required by
Law, release an Obligor from any amount owing in respect of a
Receivable or otherwise vary or discharge any Receivable or
Receivable Right or enter into any agreement or arrangement
which has the effect of altering the amount payable in respect
of a Receivable or Receivable Right where it would have a
Material Adverse Effect;
(f) (binding provisions and orders of a competent authority)
release any Receivable or Receivable Right, reduce the amount
outstanding under or vary the terms of any Receivable or grant
other relief to an Obligor, if required to do so by any Law or
if ordered to do so by a court, tribunal, authority, ombudsman
or other entity whose decisions are binding on the Servicer
(as an Approved Seller). If the order is due to the Servicer
(as an Approved Seller) breaching any applicable Law then the
Servicer must indemnify the Trustee for any loss the Trustee
may suffer by reason of the order. The amount of the loss is
to be determined by agreement with the Trustee or failing
this, by the Servicer's external auditors; and
(g) (not claim) not claim any Security Interest over any Asset.
Page 11
3.3 Material Adverse Effect
(a) In performing the Services, the Servicer shall have regard to
whether what it does, or does not do, will have any Material
Adverse Effect.
(b) The Servicer may ask the Trustee or the Manager if any action
or inaction on its part is reasonably likely to, or will, have
a Material Adverse Effect.
(c) The Servicer may rely upon any statement by the Trustee or the
Manager that any action or inaction by the Servicer is
reasonably likely to, or will, have a Material Adverse Effect,
provided it so relies in good faith.
(d) Subject to paragraphs (a) and (c), the Servicer shall not be
liable for a breach of this Agreement, or be liable under any
indemnity, in relation to any action or inaction on its part,
where it has been notified by the Trustee or the Manager that
the action or inaction is not reasonably likely to, or will
not have a Material Adverse Effect.
4. Procedures manual
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4.1 Trustee bound by acts of Servicer
All acts of the Servicer in servicing the Receivables in accordance
with the relevant Procedures Manual are binding on the Trustee.
4.2 No liability for compliance
(a) The Servicer is not in breach of its duties under this
Agreement or otherwise liable to the Trustee if it complies
strictly with the relevant Procedures Manual unless:
(i) the relevant Procedures Manual does not materially
comply with any Law; or
(ii) the Servicer is not otherwise complying with clauses
2.2 and 3 in relation to the relevant matter or duty.
(b) If the Servicer becomes aware that any Procedures Manual does
not materially comply with any Law, it shall notify the
Trustee within 10 Business Days and take all reasonable steps
to rectify that non-compliance.
4.3 Amendments to Procedures Manual
The Servicer shall not amend the relevant Procedures Manual in any way
that would reasonably be expected to result in a Material Adverse
Effect, unless it must do so to ensure compliance with Law. The
Servicer shall notify the Trustee, the Manager and the Designated
Rating Agency of any material amendment to the relevant Procedures
Manual.
5. Collection and remittance of moneys
--------------------------------------------------------------------------------
5.1 Collection of moneys
(a) The Servicer shall on behalf of the Trustee collect and
receive the Collections in respect of Receivables in relation
to which the Servicer (as an Approved Seller) is the legal
owner.
(b) In collecting and receiving the Collections for Receivables in
relation to which it is (as an Approved Seller) the legal
owner, the Servicer shall:
(i) act in accordance with the standards and practices
applied by the Servicer to other assets which it owns
in the ordinary course of its business (as an
Approved Seller) and in accordance with the
Procedures Manual; and
Page 12
(ii) exercise the degree of diligence and care expected of
an appropriately qualified lender in relation to the
relevant financial products.
(c) Following the perfection of title to any Receivable and
Receivable Rights, the Servicer shall assist the Trustee in
relation to the collection and receipt of Collections in
respect of those Receivables and Receivable Rights.
5.2 Remittances
(a) If the Servicer has a short term rating of A-1+ from S&P, P-1
from Xxxxx'x or F1+ from Fitch, and the Standby Bank Guarantee
is in place or the Servicer otherwise satisfies each relevant
Designated Rating Agency that any rating given by the
Designated Rating Agency in respect of the Notes will not be
adversely affected, the Servicer must pay the Collections it
receives during a Collection Period on the Remittance Date for
that Collection Period into the relevant Collection Account.
(b) Subject to the terms of the relevant Supplementary Terms
Notice, on that Remittance Date, the Servicer must pay into
the relevant Collection Account an amount equal to the
aggregate of:
(i) the Collections received during the Collection Period
relating to that Remittance Date; and
(ii) an amount equal to the interest that would have been
earned on such Collections received by it if they had
been deposited into the relevant Collection Account
five Business Days following receipt by the Servicer,
less an amount equal to any Taxes payable in relation to those
Collections and any other amount the Servicer may retain in
accordance with any relevant Supplementary Terms Notice.
(c) If the Servicer does not have a short term rating of A-1+ from
S&P, P-1 from Xxxxx'x and F1+ from Fitch, or otherwise does
not satisfy the requirements of each relevant Designated
Rating Agency so that the rating given by the Designated
Rating Agency in respect of the Notes will be adversely
affected, then the Servicer shall pay all Collections in its
possession or control into the relevant Collection Account no
later than two (2) Business Days following receipt.
(d) If a Collection Account is not maintained with the Servicer,
or a subsidiary of the Servicer, all Collections in relation
to the relevant Trust must be deposited into that Collection
Account no later than two Business Days following receipt of
them by the Servicer.
(e) In respect of Crusade Euro Trust No.1 of 1998, if the amount
standing to the credit of the Collection Account at any time
exceeds the Standby Guarantee Limit (as defined in the Standby
Bank Guarantee) at that time the amount of that excess must be
withdrawn from the Collection Account and deposited in an
account held with an Approved Bank (other than Xx.Xxxxxx)
unless the Standby Guarantor temporarily increases the Standby
Guarantee Limit (as defined in the Standby Bank Guarantee) by
an amount equal to that excess.
5.3 Remittances to Trustee
(a) (Transfer of funds to Trustee) The Servicer shall pay to the
relevant Collection Account all funds required to be paid to
the Trustee in accordance with this clause 5 by wire transfer
or as otherwise instructed by the Trustee in same day funds.
(b) (Payment dishonoured) If the Servicer pays funds relating to
any payment in respect of Receivables and Receivable Rights to
the Trustee and the related Obligor's payment is returned, or
dishonoured, the Servicer shall be entitled to a return of the
amount remitted to the
Page 13
Trustee for which the Servicer did not receive funds from the
Obligor. The Servicer may withhold that amount from funds
subsequently remitted to the Trustee in relation to the
Relevant Trust.
5.4 Payments and Computations, etc.
(a) Subject to the terms of any relevant Supplementary Terms
Notice, the Servicer shall make all payments to the Trustee
under a Transaction Document:
(i) without set off or counterclaim and without
deduction, except in relation to any deductions that
may be made in accordance with this clause; and
(ii) by paying or depositing it in accordance with the
terms of the relevant Transaction Document no later
than 4.00 pm on the day when due in same day funds.
(b) If any payment is due on a day which is not a Business Day,
the due date will be the next Business Day.
5.5 Report by Servicer
On or before each Determination Date for each Relevant Trust, the
Servicer will prepare and submit to the Manager and the Trustee a
report on Collections, and provide such other information as the
Manager reasonably requires to prepare its report under clause 14.16 of
the Master Trust Deed and at the end of each Financial Year produce a
certificate for the Trustee and the Manager containing a schedule of
information agreed from time to time with the Trustee and the Manager.
5.6 No Right of Set-Off
Notwithstanding any term of any other document, whether relating to the
establishment of a Collection Account or otherwise:
(a) if a Trust account is maintained with the Servicer, the
Servicer agrees that it shall have no right of set-off,
banker's lien, right of combination of accounts, right to
deduct moneys or any other analogous right or security in or
against any funds held in the Trust Account for any amount
owed to the Servicer; or
(b) if a Trust account is maintained with any Bank other than
Xx.Xxxxxx, the Manager shall use its best endeavours to ensure
that the relevant Bank agrees that it shall have no right of
set-off, banker's lien, right of combination of accounts,
right to deduct moneys or any other analogous right or
security in or against any funds held in the Trust Account for
any amount owed to that Bank.
6. Servicer fees
--------------------------------------------------------------------------------
6.1 Fee
The Trustee shall in accordance with, and subject to the relevant
Supplementary Terms Notice pay to the Servicer a fee for providing its
services under this Agreement in relation to each Trust.
6.2 Expenses of Servicer
(a) The Trustee must reimburse the Servicer for all legal and
selling expenses relating to the enforcement and recovery of
the Receivables, including legal expenses, valuations,
premiums on force-placed insurance policies where the relevant
Obligor has cancelled or let lapse an insurance policy, rates
and taxes, any amount repaid to a liquidator or trustee in
bankruptcy under any applicable law, binding code, order or
decision of a court, tribunal or the like or based on the
advice of the Servicer's legal advisers, and other reasonable
amounts which the Servicer reasonably
Page 14
spends or incurs in relation to the enforcement or sale,
provided that where the consent of an insurer under a Mortgage
Insurance Policy is required in order for an expense to be
reimbursable by that insurer, the Servicer will only be
reimbursed where it has obtained that consent. This right of
reimbursement to the Servicer is subject to the terms of any
relevant Trust Back under the Master Trust Deed.
(b) The Servicer will invoice the Trustee on each Determination
Date in relation to each Relevant Trust for the costs and
expenses under paragraph (a), and shall provide reasonable
details and supporting documentation in relation to amounts to
be reimbursed.
(c) This reimbursement shall be in accordance with the relevant
Supplementary Terms Notice.
(d) The Trustee must, in accordance with the Master Trust Deed and
the relevant Supplementary Terms Notice on the recommendation
of the Manager, reimburse the Servicer for all costs and
expenses incurred by the Servicer in complying with clause
2.7.
(e) Except as provided in this clause, the Servicer shall be
responsible for all other costs and expenses of servicing the
Receivables.
7. Termination
--------------------------------------------------------------------------------
7.1 Expiry of Term
This Agreement shall continue until the expiry of the Term.
7.2 Servicer Transfer Event
(a) If a Servicer Transfer Event occurs, the Trustee must at the
direction of the Manager by notice terminate this Agreement
with immediate effect.
(b) Following such action:
(i) clause 2.8 shall apply;
(ii) the Servicer must promptly transfer at its own cost
to the Trustee or as the Trustee directs the relevant
information in the Data Base held or maintained by
the Servicer in relation to this Agreement, the
Receivables or Receivable Rights; and
(iii) unless and until another Eligible Servicer has been
appointed to be the Servicer, the Trustee shall act
as Servicer and be entitled to the fee payable under
clause 6 while so acting.
(c) No other person will be appointed to perform all or part of
the obligations the Servicer has undertaken to perform under
this Agreement or to service any of the Receivables unless:
(i) the Trustee has terminated this Agreement in
accordance with the provisions of paragraph (a); or
(ii) the Servicer has resigned in accordance with clause
7.3; and
in all circumstances that person must be an Eligible Servicer
or the Trustee.
7.3 Resignation
(a) The Servicer shall not resign without first giving 120 days'
notice to the Designated Rating Agency, the Manager and the
Trustee. The Manager and the Trustee shall use reasonable
endeavours to procure the appointment of a replacement
Servicer which is an Eligible Servicer. The Servicer shall
assist the Manager and the Trustee in procuring such
appointment if requested.
(b) When a notice under paragraph (a) is given, the Trustee and
the Manager shall be entitled to appoint some other
corporation to be the Servicer of
Page 15
the relevant Trust on any terms the Trustee sees fit
(including the amount of Servicer's Fee that would be payable
to the replacement Servicer at market rates) provided that the
terms of that appointment will not have an adverse effect on
the ratings of the Notes and that corporation is an Eligible
Servicer.
(c) Subject to paragraph (d) below, until a replacement Servicer
is appointed under paragraph (b) above, the Servicer must
continue to act as Servicer and be entitled to the fee payable
under clause 6 while so acting.
(d) If an Eligible Servicer is not appointed by the expiry of the
120 day notice period given under paragraph (a) above, the
Trustee must itself act as Servicer and be entitled to a fee
payable under clause 6 while so acting.
(e) Despite paragraph (a), the Trustee may resign as Servicer by
giving one (1) day's notice to the Designated Rating Agency
and the Manager when the appointment of a replacement Servicer
(which is an Eligible Servicer) has been procured to take
effect from the Trustee's resignation as Servicer.
7.4 Survival
The obligations of the Servicer under clause 7 survive the termination
of this Agreement.
7.5 Release of outgoing Servicer
Except as provided in clause 7.4, upon retirement or removal and
provided there has been payment to the Trustee of all sums due to it by
the outgoing Servicer under this Agreement at that date, the outgoing
Servicer shall be released from all further obligations under this
Agreement but no release under this clause shall extend to any existing
or antecedent fraud, negligence or wilful default on the part of the
outgoing Servicer or its officers, employees, agents or delegates.
7.6 New Servicer to execute deed
(a) A new Servicer shall execute a deed in such form as the
Trustee may reasonably require under which the new Servicer
shall undertake to the Trustee and other relevant parties to
be bound by all the covenants on the part of the Servicer
under the Transaction Documents from the date of execution of
the new deed on the same terms contained in the Transaction
Documents.
(b) On and from the date of execution of the new deed, the new
Servicer shall and may afterwards exercise all the powers,
enjoy all the rights and shall be subject to all the duties
and obligations of the Servicer under the Transaction
Documents as fully as though the new Servicer had been
originally named as a party to it.
7.7 Settlement and discharge
Subject to clause 7.5, the Trustee shall settle with the outgoing
Servicer the amount of any sums payable by the outgoing Servicer to the
Trustee or by the Trustee to the outgoing Servicer and shall give to or
accept from the outgoing Servicer a discharge in respect of those sums
which shall be conclusive and binding as between the Trustee, the
outgoing Servicer, the new Servicer, the Manager, the Beneficiaries and
the Noteholders.
8. Indemnity
--------------------------------------------------------------------------------
8.1 Indemnity
Subject to the succeeding provision of this clause, the Servicer fully
indemnifies the Trustee from and against all direct and indirect costs,
expenses, losses, damages, liabilities or actions arising or resulting
from any action or conduct undertaken or not taken by the Servicer (as
Servicer or Approved Seller) or its
Page 16
officers, employees or agents including as a consequence of a Servicer
Transfer Event, or a failure by the Servicer to perform its duties
under this Agreement (as Servicer or Approved Seller), including,
without limitation, a failure to keep the Receivables Register in
accordance with this Agreement.
8.2 Limitation of liability
The Servicer is not liable:
(a) in connection with anything done by it in good faith in
reliance upon any document, form or list provided by or on
behalf of the Trustee except when it has actual knowledge, or
ought reasonably to know, that the document, form or list is
not genuine or accurate;
(b) if it fails to do anything because it is prevented or hindered
from doing it by any Law; or
(c) subject to the Corporations Law, if a person (other than a
delegate or agent of the Servicer) fails to carry out an
agreement with the Trustee or the Servicer in connection with
the Services (except when the failure is due to the Servicer's
own neglect, fraud or default).
8.3 No liability for acts of certain persons
If the Servicer relies in good faith on an opinion, advice, information
or statement given to it, by a person the Servicer is not liable for
any misconduct, mistake, oversight, error of judgment, forgetfulness or
want of prudence on the part of that person, except:
(a) when the person is not independent from the Servicer; or
(b) it would not be reasonable to rely upon the opinion, advice,
information or statement from the person who gives it; or
(c) where that person is a delegate or agent of the Servicer.
A person will be regarded as independent notwithstanding that the
person acts or has acted as adviser to the Servicer so long as separate
instructions are given by the Servicer to that person.
8.4 No liability for loss etc
The Servicer is not liable:
(a) for any loss, cost, liability or expense arising out of the
exercise or non-exercise of a discretion by the Trustee or the
Manager or the act or omission of the Trustee or the Manager
except to the extent that it has arisen out of the Servicer's
own fraud, negligence or default; or
(b) for any loss, cost, liability or expense caused by its failure
to check any information, document, form or list supplied or
purported to be supplied to it by the Trustee or the Manager
except to the extent that the loss is caused by the Servicer's
own fraud, negligence or default.
This exclusion does not apply in relation to the acts or omissions of
the Manager for so long as the Servicer is a Related Body Corporate of
the Manager.
8.5 Method of claiming under indemnity
The Servicer shall not be obliged to pay any indemnity under this
Agreement, unless:
(a) the Trustee first establishes that there has been a breach
that has caused loss;
(b) the indemnity claimed represents no more than the loss
incurred as a result of the breach; and
(c) the Manager on behalf of the Trustee first gives the Servicer
a written notice specifying:
(i) the quantum of the claim; and
Page 17
(ii) the basis of the claim.
8.6 Time of Payment
The Servicer shall pay any amount it is required to pay under this
clause within 7 Business Days of receipt of notice under clause 8.5.
9. Representations and warranties
--------------------------------------------------------------------------------
9.1 Representations and Warranties
The Servicer makes the representations and warranties in clause 27.1 of
the Master Trust Deed in relation to itself for the benefit of the
Trustee.
9.2 Reliance
The Servicer acknowledges that the Trustee has entered into this
Agreement in reliance on the representations and warranties in clause
9.1.
9.3 Survival of Representations and Indemnities
(a) All representations and warranties in a Transaction Document
survive the execution and delivery of the Transaction
Documents.
(b) Each indemnity in this Agreement:
(i) is a continuing obligation;
(ii) is a separate and independent obligation; and
(iii) survives termination or discharge of this Agreement.
10. The servicer may act as banker
--------------------------------------------------------------------------------
The Servicer may (without having to account to the Trustee) engage in
any kind of banking, finance, trust or other business permitted under
any law with any Obligor as if it did not have obligations under this
Agreement and it were not the Servicer but subject to the provisions of
this Agreement. The Servicer shall not be required to account to the
Trustee for any moneys received by it on any account that is unrelated
to Receivables and Receivable Rights or the Services.
11. Administrative provisions
--------------------------------------------------------------------------------
11.1 Notices
All notices, requests, demands, consents, approvals or agreements to or
by a party to this Agreement:
(a) must be in writing;
(b) must be signed by an Authorised Signatory of the sender; and
(c) will be taken to be duly given or made (in the case of
delivery in person or by post or facsimile transmission) when
delivered, received or left at the address of the recipient
shown in this Agreement or to any other address which it may
have notified the sender, but if delivery or receipt is on a
day on which business is not generally carried on in the place
to which the communication is sent or is later than 4 pm
(local time), it will be taken to have been duly given or made
at the commencement of business on the next day on which
business is generally carried on in that place.
11.2 Governing Law and Jurisdiction
This Agreement is governed by the laws of the New South Wales. Each of
the Servicer and the Trustee submits to the non-exclusive jurisdiction
of courts exercising jurisdiction there.
Page 18
11.3 Assignment
No party may assign, novate, transfer or deal with its obligations
under this Agreement except for the creation of a charge by the Trustee
under the relevant Security Trust Deed.
11.4 Amendment
This Agreement can only be amended in writing, and provided:
(a) prior notice of any proposed amendment is given to the
Designated Rating Agency; and
(b) the amendment will not result in an adverse effect on the
ratings of any Notes.
11.5 Severability clause
Any provisions of any Transaction Document which are prohibited or
unenforceable in any jurisdiction are ineffective to the extent of the
prohibition or unenforceability. That does not invalidate the remaining
provisions of that Transaction Document nor affect the validity or
enforceability of that provision in any other jurisdiction.
11.6 Costs and Expenses
(a) (Trustees costs and expenses) On demand the Servicer shall
reimburse the Trustee for the reasonable expenses of the
Trustee (as applicable) in relation to any enforcement of this
Agreement by the Trustee against the Servicer for breaching
this Agreement including in each case legal costs and expenses
on a full indemnity basis and each party shall bear their own
costs (other than legal costs) relating to the preparation
execution and completion of this Agreement.
(b) (Stamp duty) In addition, the Servicer shall pay all stamp and
registration Taxes (including fines and penalties) which may
be payable or determined to be payable in relation to the
execution, delivery, performance or enforcement of this
Agreement.
(c) (Servicer's costs and expenses) In accordance with the
Supplementary Terms Notice, the Trustee shall reimburse the
Servicer for the reasonable expenses of the Servicer (as
applicable) in relation to any enforcement of this Agreement
including in each case legal costs and expenses on a full
indemnity basis, except to the extent that such enforcement
relates to a breach by the Servicer of this Agreement.
11.7 Waivers: Remedies Cumulative
(a) No failure on the part of a party to exercise and no delay in
exercising any right, power or remedy under any Transaction
Document operates as a waiver. Nor does any single or partial
exercise of any right, power or remedy preclude any other or
further exercise of that or any other right, power or remedy.
(b) The rights, powers and remedies provided to the Trustee in the
Transaction Documents are in addition to any right, power or
remedy provided by law.
EXECUTED in Canberra.
Each attorney executing this Agreement states that he or she has no
notice of revocation or suspension of his or her power of attorney.
Page 19
For agreement executed under power of attorney
c40
SIGNED on behalf of )
XX.XXXXXX BANK LIMITED )
by its attorney )
in the presence of: )
--------------------------------------
Signature
-------------------------------------- --------------------------------------
Witness Print name
--------------------------------------
Print name
SIGNED on behalf of )
CRUSADE MANAGEMENT LIMITED )
by its attorney )
in the presence of: )
-------------------------------------
Signature
-------------------------------------- --------------------------------------
Witness Print name
--------------------------------------
Print name
For agreement executed under power of attorney
c40
SIGNED on behalf of )
NATIONAL MUTUAL TRUSTEES )
LIMITED (ACN 004 029 841) )
by its attorney under power of attorney )
dated )
who hereby declare that no notice )
of alteration to or revocation of )
the said Power of Attorney has )
been received by them )
in the presence of: )
----------------------------------
Signature
------------------------------------------- ----------------------------------
Witness Print name
-------------------------------------------
Print name
Page 20
SCHEDULE 1
RECEIVABLES REGISTER INFORMATION
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The Receivables Register shall contain the following information in
relation to each Mortgage.
1. Name and address of the relevant Obligor(s).
2. Account/reference number of the loan under the relevant loan document,
letter of offer or terms and conditions.
3. The title reference for the relevant Mortgaged Property.
4. Such other information as the Servicer and the Trustee may agree from
time to time.
5. The registered dealing number of that Mortgage from the relevant Land
Titles Office together with:
(a) in respect of Mortgaged Property in New South Wales, the volume
and folio number(s) for the Mortgaged Property;
(b) in respect of Mortgaged Property in Queensland, a description of
the lot, county, parish and title reference(s) of the Mortgaged
Property;
(c) in respect of Mortgaged Property in Western Australia:
(i) lot and diagram/plan/strata plan number(s) or location name
and number(s); and
(ii) volume and folio number(s) or crown lease number(s);
(d) in respect of Mortgaged Property in South Australia, the volume
and folio number(s) for the Mortgaged Property;
(e) in respect of Mortgaged Property in Tasmania, the volume and folio
number(s) for the Mortgaged Property;
(f) in respect of Mortgaged Property in the Australian Capital
Territory district/division, section, block, unit, volume and
folio number(s) for the Mortgaged Property;
(g) in respect of Mortgaged Property in the Northern Territory, the
Receivables Register, volume, folio, location, parcel, plan and
unit for the Mortgaged Property;
(h) in respect of Mortgaged Property in Victoria, the volume and folio
number(s) for the Mortgaged Property.
6. Details of the direct debit authorities in respect of Obligors.
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