<PAGE>
EXHIBIT 10.1
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DATED 2001
HOMESIDE MORTGAGE
SECURITIES TRUSTS
SERVICING AGREEMENT
HOMESIDE GLOBAL MBS MANAGER, INC.
("GLOBAL TRUST MANAGER")
PERPETUAL TRUSTEE COMPANY LIMITED
("ISSUER TRUSTEE")
NATIONAL AUSTRALIA BANK LIMITED, TRADING AS HOMESIDE
("SERVICER")
MALLESONS STEPHEN JAQUES
Solicitors
Governor Phillip Tower
1 Farrer Place
Sydney NSW 2000
Telephone (61 2) 9296 2000
Facsimile (61 2) 9296 3999
DX 113 Sydney
Ref: SRF:CD3
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CONTENTS HOMESIDE MORTGAGE SECURITIES TRUSTS
SERVICING AGREEMENT
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<TABLE>
<S> <C>
PART A - INTERPRETATION 1
1 DEFINITIONS AND INTERPRETATION 1
Definitions 1
Interpretation 1
PART B - SERVICING 2
2 SERVICING OF MORTGAGE LOANS AND GENERAL SERVICER
COVENANTS 2
Appointment of Servicer 2
Servicer's Obligations 2
Servicer agrees to perform duties 3
Powers 3
General Servicer covenants 3
Servicer's Statement 6
Provision of information 6
Proposed amendments to Servicing Procedures 6
Delegation by the Servicer 7
Adverse Effect 7
3 SERVICER TERMINATION EVENT AND RETIREMENT OF SERVICER 7
Servicer Termination Event 7
Termination of Servicing Agreement 8
Termination of Servicer's appointment and transfer of
servicing obligations 8
Voluntary Retirement of Servicer 8
Appointment of Substitute Servicer 8
Issuer Trustee act as Servicer 9
Issuer Trustee may give discharges 9
Servicer may accept payment 9
Servicer and Global Trust Manager
to provide full co-operation 9
Release 9
Title Perfection Event 10
4 CUSTODIAN 10
Standard 10
Information Indemnity 10
Auditor review 10
Document Custody Audit Report 11
Timing of Document Custody Audit Reports 12
Adverse Document Custody Audit Report 13
Custody Transfer Event 13
Exceptions 14
Failure to comply 14
Emergency Document transfer 14
Exceptions to Emergency Transfer 15
Indemnity 15
Issuer Trustee to co-operate with Servicer 15
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(ii)
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Issuer Trustee's duty while holding Mortgage Title Documents 16
Reappointment of Servicer as Custodian 16
5 SERVICER'S LIABILITY 16
No liability 16
Indemnity 16
6 REMUNERATION AND EXPENSES 16
Servicer fees 16
Expenses 17
PART C - GENERAL 17
7 PAYMENTS 17
Payments generally 17
No deduction 17
8 NOTICES 17
Notices 17
Initial addresses 18
Time effective 18
Receipt 18
9 AMENDMENTS TO THIS AGREEMENT 19
Amending power 19
Consent required 20
Amendments prejudicial to Noteholders of a Class 20
Amendments prejudicial to all Noteholders 20
10 GOVERNING LAW 20
Governing Law 20
Submission to jurisdiction 21
Service 21
11 LIMITED RECOURSE 21
12 COUNTERPARTS 21
</TABLE>
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1
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HOMESIDE MORTGAGE SECURITIES TRUSTS
SERVICING AGREEMENT
DATE: 2001
PARTIES: HOMESIDE GLOBAL MBS MANAGER, INC. having an office at 7301
Baymeadows Way, Jacksonville, Florida 32256, United States
of America ("GLOBAL TRUST MANAGER")
PERPETUAL TRUSTEE COMPANY LIMITED (ABN 42 000 001 007)
having its registered office at Level 7, 39 Hunter Street,
Sydney NSW 2000 ("ISSUER TRUSTEE")
NATIONAL AUSTRALIA BANK LIMITED TRADING AS HOMESIDE (ABN 12
004 044 937) having its registered office at Level 24, 500
Bourke Street, Melbourne VIC 3000 ("SERVICER")
OPERATIVE PROVISIONS:
PART A - INTERPRETATION
1 DEFINITIONS AND INTERPRETATION
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DEFINITIONS
1.1 The following terms have the meaning set out below unless
the context otherwise requires:
DEFINITIONS SCHEDULE means the deed entitled "HomeSide
Mortgage Securities Trusts Definitions Schedule" dated 3
January 2001 and made between the companies described in
schedule 1 to that deed.
RELEVANT TRUST means a Trust in relation to which the
Servicer has been appointed, and has agreed to act, as
Servicer under clause 2.1 and the Supplemental Deed for that
Trust.
INTERPRETATION
1.2 Except to the extent to which words and phrases are
otherwise defined in this agreement, words and phrases
defined in the Definitions Schedule shall bear the same
meaning in this agreement. In the event of any inconsistency
between a definition in this agreement and a definition in
the Definitions Schedule, the definitions in this agreement
will prevail. Any amendment to the Definitions Schedule will
only apply to this agreement if that amendment has been made
in accordance with this agreement.
1.3 Clauses 1.2 to 1.5 (inclusive) of the Definitions Schedule
are incorporated in this agreement as though they were set
out in full in it with references to "deed" being construed
as references to "agreement".
1.4 By executing this agreement, the parties agree that terms
used in any Transaction Document have the meaning given to
them in the Definitions Schedule.
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PART B - SERVICING
2 SERVICING OF MORTGAGE LOANS AND GENERAL SERVICER COVENANTS
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APPOINTMENT OF SERVICER
2.1 The Issuer Trustee appoints the Servicer to act as servicer
and custodian to:
(a) service and administer the Mortgage Loans of each
Relevant Trust; and
(b) to hold any Mortgage Title Documents in respect of the
Mortgage Loans forming the Assets of the Relevant Trust
as custodian on behalf of the Issuer Trustee,
upon and subject to the terms of this agreement and the
Supplemental Deed for the Relevant Trust. By executing the
relevant Supplemental Deed, the Servicer shall be taken to
have accepted that appointment, and agreed to perform the
role of Servicer in relation to that Relevant Trust in
accordance with this agreement.
2.2 The appointment of the Servicer under clause 2.1 in respect
of a Relevant Trust applies in relation to the Mortgage
Loans which are acquired by the Issuer Trustee in accordance
with a Secondary Sale Agreement and a Secondary Offer to
Sell in respect of that Relevant Trust. The Servicer's
actions in servicing the Mortgage Loans according to the
relevant Servicing Procedures are binding on the Issuer
Trustee. The Servicer must hold the Mortgage Title Documents
as custodian on behalf of the Issuer Trustee until a Title
Perfection Event or Servicer Termination Event occurs.
SERVICER'S OBLIGATIONS
2.3 The Servicer must service the Mortgage Loans of each
Relevant Trust and otherwise carry out and perform its
duties and obligations under the Transaction Documents in
respect of the Mortgage Loans of each Relevant Trust:
(a) in accordance with all applicable laws;
(b) in accordance with the provisions of this agreement;
(c) with the same degree of diligence and care expected of
an appropriately qualified and prudent servicer of
similar financial products and custodian of documents;
and
(d) subject to paragraphs (a), (b) and (c) above, in
accordance with the Servicing Procedures, which are
under regular review and may change from time to time
as a result of business changes, or legislative and
regulatory changes.
No other provision of this clause 2 limits the obligations
of the Servicer in this clause 2.3.
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2.4 In performing its duties, the Servicer must comply with all
reasonable instructions given by the Issuer Trustee or the
Global Trust Manager (on behalf of the Issuer Trustee).
2.5 Except in accordance with the terms of the relevant
Supplemental Deed (whether or not at the direction of the
Global Trust Manager), neither the Issuer Trustee nor the
Global Trust Manager is entitled to exercise any servicing
functions in connection with any Mortgage Loan unless it is
acting as Servicer.
SERVICER AGREES TO PERFORM DUTIES
2.6 The Servicer agrees to carry out and perform its duties and
obligations contained in this agreement in respect of the
Mortgage Loans of a Relevant Trust until the earlier of:
(a) the date of its retirement or removal as Servicer in
accordance with this agreement; and
(b) the date upon which the Relevant Trust is terminated.
POWERS
2.7 The Servicer has the express power during the term of its
appointment in respect of each Relevant Trust:
(a) to waive any fees and break costs which may be
collected in the ordinary course of servicing the
Mortgage Loans, or to arrange the rescheduling of
interest due and unpaid following a default under any
Mortgage Loans;
(b) to waive any right in respect of the Mortgage Loans in
the ordinary course of servicing the Mortgage Loans,
including according to its normal collection
procedures; and
(c) to extend the maturity date of a Housing Loan beyond 30
years from the date of origination when required to do
so by law or a Governmental Agency, regardless of
whether the extension may have an Adverse Effect.
GENERAL SERVICER COVENANTS
2.8 The Servicer covenants with the Issuer Trustee and the
Global Trust Manager that it will at all times during the
term of its appointment in respect of each Relevant Trust:
(a) if directed by the Issuer Trustee following a Title
Perfection Event, promptly take action to protect the
Issuer Trustee's interest in, and title to, the
Mortgage Loans in the Mortgage Portfolio;
(b) take such action as is required to protect or enforce
the terms of any Mortgage Loan forming part of the
Assets of the Relevant Trust or otherwise exercise any
rights conferred under documentation or at law in
relation to the Mortgage Loan and take such action and
incur such expenses as are necessary for such
protection, enforcement or exercise of
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rights (including legal action for the recovery of
damages, whether in relation to the Mortgage Loan or
the performance by any party of its duties and
obligations under the Transaction Documents for the
Relevant Trust) to the extent it determines to be
appropriate;
(c) (if applicable) if the Global Trust Manager is obliged
to direct the Servicer to set the interest rate charged
(if that rate is a variable rate) on or any fees
payable in respect of each Housing Loan of the Relevant
Trust under the relevant Supplemental Deed, then the
Servicer will comply with such direction;
(d) prepare and collate all reasonably necessary
performance statistics of the Mortgage Loans for the
Relevant Trust;
(e) provide to the Issuer Trustee and the Global Trust
Manager promptly from time to time such information,
documents, records, reports or other information
relating to the Mortgage Loans of the Relevant Trust or
the operations of the Servicer as may be reasonably
requested by either of them and upon reasonable notice
and at reasonable times permit the Issuer Trustee to
inspect the data and records in relation to the
Relevant Trust and the Loan Agreements, Mortgages and
Mortgage Title Documents;
(f) subject to the terms of the relevant Supplemental Deed,
on behalf of the Issuer Trustee, make reasonable
efforts to collect all Collections received by it in
respect of each Mortgage Loan and each Mortgage
Insurance Policy of the Relevant Trust and remit any
such Collections received by the Servicer to the
relevant Collections Account on or before the Payment
Date relating to that Collection Period in the manner
required by the relevant Supplemental Deed;
(g) maintain any loan account in respect of any Mortgage
Loan of the Relevant Trust and give all notices,
documents or statements required to be given under the
Servicing Procedures to the relevant Debtor;
(h) with respect to any Mortgage Insurance Policy:
(i) promptly prepare and make claims under the
Mortgage Insurance Policy when it or the Issuer
Trustee is entitled to do so under the terms of
the Mortgage Insurance Policy or under the terms
of the Transaction Documents, as the case may be,
and notify the Global Trust Manager when each
claim of this type is made;
(ii) not, without the consent of the Issuer Trustee,
do anything which could reasonably be expected to
prejudicially affect or limit its rights or the
rights of the Issuer Trustee under, or in respect
of, the
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Mortgage Insurance Policy to the extent those
rights relate to those Mortgage Loans;
(iii) comply with, and to the extent it is able ensure
that, all requirements and conditions of the
Mortgage Insurance Policy are complied with; and
(iv) take any action that it is required to take under
the Servicing Procedures to ensure that the
Mortgage Insurance Policy is in force at all
times after the date of this agreement;
(i) not, without the consent of the Security Trustee,
consent to the creation or existence of a Security
Interest in the Mortgage Loans of the Relevant Trust to
a third party which ranks pari passu or before the
interest of the Security Trustee or allow the creation
or existence of any other Security Interest in the
Mortgage Loans, unless priority arrangements are
entered into with the third party under which the third
party acknowledges that the Security Trustee's Security
Interest in the relevant Mortgage Loan ranks ahead in
priority to the third party's Security Interest on
enforcement for an amount not less than the Outstanding
Principal Balance of the relevant Housing Loan plus any
additional amount the Servicer determines according to
the Servicer's Servicing Procedures manual or its
ordinary course of business;
(j) electronically identify all Mortgage Loans of the
Relevant Trust in its electronic database in order to
identify the Collections and other relevant cashflows
in respect of the Mortgage Loans;
(k) notify the Issuer Trustee, each Current Rating Agency
and the Global Trust Manager of:
(i) the occurrence of any event which it reasonably
believes is likely to have a Material Adverse
Effect;
(ii) the occurrence of a Servicer Termination Event;
(iii) the occurrence of anything else which the Global
Trust Manager reasonably requires regarding any
proposed modification to any Mortgage Loan; and
(iv) any material breach of the Servicing Procedures
by the Servicer in relation to the servicing of
the Mortgage Loans of the Relevant Trust,
promptly after becoming aware of such event;
(l) perform any obligations imposed upon the Servicer under
a relevant Supplemental Deed or as otherwise agreed
between the Issuer Trustee, the Global Trust Manager
and the Servicer;
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(m) maintain in effect all qualifications, consents,
licences, permits, approvals, exemptions, filings and
registrations as may be required under any applicable
law in order to properly service the Mortgage Loans and
to perform and comply with its obligations under this
agreement;
(n) subject to the terms of the relevant Supplemental Deed,
continue to act in its capacity as Servicer of a
Relevant Trust after a Title Perfection Event has
occurred in respect of that Relevant Trust; and
(o) not, except as required by law, release a Debtor or
discharge any Mortgage Loan where it would have an
Adverse Effect.
SERVICER'S STATEMENT
2.9 Prior to each Determination Date, in respect of each
Relevant Trust, the Servicer will prepare and submit to the
Global Trust Manager a statement in the form agreed from
time to time between the Global Trust Manager and the
Servicer ("SERVICER'S STATEMENT").
PROVISION OF INFORMATION
2.10 The Servicer may, on behalf of the Issuer Trustee, provide
information in relation to Debtors and Security Providers
(including, without limitation, information which may be
subject to statutory or general law duties of
confidentiality or privacy) to other persons for the purpose
of the Servicer fulfilling its obligations as Servicer or
the obligations of the Issuer Trustee in relation to the
Mortgage Loans.
PROPOSED AMENDMENTS TO SERVICING PROCEDURES
2.11 The Servicer must deliver copies of all proposed material
amendments to the Servicing Procedures which relate to the
Servicer's credit and risk policy in respect of the Mortgage
Loans then comprising Assets of a Relevant Trust to the
Current Rating Agencies, the Issuer Trustee and the Global
Trust Manager at least 10 Business Days prior to the date
the changes are intended to take effect. The adoption of
those amendments by the Servicer takes effect upon the
earlier to occur of the following (or if the earlier to
occur of the following occurs before the proposed date for
the changes to take effect, then on the proposed date for
the changes to take effect):
(a) (CURRENT RATING AGENCIES CONFIRMATION): the Current
Rating Agencies confirm in writing that the adoption of
those amendments will not result in an Adverse Rating
Effect; and
(b) (10 BUSINESS DAYS AFTER DELIVERY): the date being 10
Business Days after the delivery of the amendments to
the Current Rating Agencies, unless the Servicer has
received notice from a Current Rating Agency during
that period of its intention not to confirm in writing
that the adoption of those amendments will not result
in a reduction, qualification or withdrawal of the
credit ratings then assigned by them to the Notes of
the Relevant Trust.
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DELEGATION BY THE SERVICER
2.12 The Servicer has the power to delegate or subcontract in
relation to some or all of its obligations under this
agreement. Despite any delegation, the Servicer remains
liable for the servicing of the Mortgage Loans in respect of
a Relevant Trust in accordance with the Transaction
Documents.
2.13 The Servicer may appoint a person as its agent to hold
Mortgage Title Documents. The Servicer will be liable for
the acts or omissions of any such agent.
ADVERSE EFFECT
2.14 In performing any services under this agreement the Servicer
will consider whether its performance of these services does
or does not have an Adverse Effect. The Servicer may ask the
Issuer Trustee or the Global Trust Manager if any action or
inaction on its part is reasonably likely to, or will, have
an Adverse Effect, and may rely upon any statement by the
Issuer Trustee or the Global Trust Manager to that effect.
The Servicer shall not be liable for a breach of this
agreement, or be liable under any indemnity, in relation to
any action or inaction on its part, where it has been
notified by the Issuer Trustee or the Global Trust Manager
that the action or inaction is not reasonably likely to, or
will not have, an Adverse Effect.
3 SERVICER TERMINATION EVENT AND RETIREMENT OF SERVICER
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SERVICER TERMINATION EVENT
3.1 A Servicer Termination Event occurs in respect of a Relevant
Trust if:
(a) the Servicer fails to remit, or pay, any amount due by
it in respect of that Relevant Trust in accordance with
the Transaction Documents for that Relevant Trust
within 10 Business Days of receipt of a notice from
either the Issuer Trustee or the Global Trust Manager
to do so, except where that amount is subject to a good
faith dispute between the Servicer, the Issuer Trustee
or the Global Trust Manager;
(b) an Insolvency Event occurs in respect of the Servicer;
(c) the Servicer fails to observe or perform any term,
covenant, condition or obligation imposed on it under
the Transaction Documents in respect of the Relevant
Trust (other than those referred to in clause 3.1(a)),
where such failure has had, or if continued, will have
an Adverse Effect in respect of the Relevant Trust and
continues unremedied for a period of 30 days after a
notice is delivered to the Servicer by the Issuer
Trustee or the Global Trust Manager (or such longer
period as may be agreed between the Servicer and the
Issuer Trustee);
(d) any representation, warranty or certification made by
the Servicer is incorrect when made and is not waived
by the Issuer Trustee or remedied to the Issuer
Trustee's reasonable satisfaction within 90 days after
notice from the Issuer Trustee
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and the Issuer Trustee determines that breach would
have an Adverse Effect in respect of the Relevant
Trust; and
(e) it becomes unlawful for the Servicer to perform the
services under this agreement in respect of the
Relevant Trust.
The Issuer Trustee may at its discretion waive any Servicer
Termination Event in respect of a Relevant Trust. The Global
Trust Manager must notify the Issuer Trustee upon the Global
Trust Manager becoming actually aware of any Servicer
Termination Event in respect of a Relevant Trust.
TERMINATION OF SERVICING AGREEMENT
3.2 This agreement will terminate in respect of a Relevant Trust
on the earlier of:
(a) the date on which this agreement is terminated by the
Issuer Trustee if a Servicer Termination Event occurs
in respect of that Relevant Trust;
(b) the date which is 1 month after the Notes in relation
to that Relevant Trust have been redeemed in full under
the Transaction Documents for that Relevant Trust and
the Issuer Trustee ceases to have any obligation to any
creditor in relation to that Relevant Trust;
(c) the date on which the Issuer Trustee replaces the
Servicer with an eligible successor servicer pursuant
to this agreement in respect of that Relevant Trust;
and
(d) the date on which the Servicer is replaced due to its
resignation or removal pursuant to this agreement in
respect of that Relevant Trust.
TERMINATION OF SERVICER'S APPOINTMENT AND TRANSFER OF SERVICING OBLIGATIONS
3.3 Upon the occurrence of a Servicer Termination Event in
respect of a Relevant Trust, the Issuer Trustee must
immediately by notice to the Servicer, the Global Trust
Manager, the Seller and the Current Rating Agencies remove
the Servicer as servicer in respect of the Relevant Trust
under the Transaction Documents, terminate immediately all
of the Servicer's rights and obligations under the
Transaction Documents (including in relation to any Mortgage
Loans) for the Relevant Trust and terminate this agreement
in respect of the Relevant Trust.
VOLUNTARY RETIREMENT OF SERVICER
3.4 The Servicer must give to the Issuer Trustee, the Current
Rating Agencies, the Seller and the Global Trust Manager 3
months' notice in writing of its intention to retire as
Servicer in respect of a Relevant Trust or such lesser time
as the Servicer and the Issuer Trustee agree.
APPOINTMENT OF SUBSTITUTE SERVICER
3.5 Upon the removal or retirement of the Servicer, the
Servicer, the Issuer Trustee and the Global Trust Manager
must use all reasonable endeavours to appoint a replacement
servicer (in this clause 3, the
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"SUBSTITUTE SERVICER") provided that the appointment of
such Substitute Servicer will not result in an Adverse
Effect.
3.6 The purported appointment of a Substitute Servicer has no
effect until the Substitute Servicer executes an agreement
with the Issuer Trustee and the Global Trust Manager under
which it covenants to act as Servicer in accordance with
this agreement and the other Transaction Documents.
ISSUER TRUSTEE ACT AS SERVICER
3.7 Until the appointment of the Substitute Servicer is complete
or a Substitute Servicer has not been appointed by the
expiration of the 3 months notice period referred to in
clause 3.4, the Issuer Trustee must act as Servicer. The
Issuer Trustee is entitled to receive the fee payable in
accordance with clause 6.1 for the period during which the
Issuer Trustee so acts.
ISSUER TRUSTEE MAY GIVE DISCHARGES
3.8 The Issuer Trustee may settle with a Servicer the amount of
any sums payable by that Servicer to the Issuer Trustee or
by the Issuer Trustee to that Servicer, in either case in
respect of one or more Relevant Trusts, and may give to, or
accept from, that Servicer a discharge in respect of those
sums which will be conclusive and binding as between the
Issuer Trustee and that Servicer, as between that Servicer
and the Unitholders and as between the Servicer and the
relevant Secured Creditors.
SERVICER MAY ACCEPT PAYMENT
3.9 A Servicer may accept a payment or benefit in connection
with its retirement or removal from the Substitute Servicer.
A Servicer is also entitled to receive payments or benefits
which have accrued to that Servicer under this agreement
prior to the date of that Servicer's retirement or removal
from office.
SERVICER AND GLOBAL TRUST MANAGER TO PROVIDE FULL CO-OPERATION
3.10 The Servicer and the Global Trust Manager agree to provide
their full co-operation in the event of a transfer of the
functions of the Servicer. Subject to all applicable privacy
legislation, the Servicer and the Global Trust Manager must
provide the Substitute Servicer with copies of all paper and
electronic files, information and other materials which the
Global Trust Manager has retained and has in its possession
as the Issuer Trustee or the Substitute Servicer may
reasonably request as soon as practicable (and, in any event
within ten Business Days) after the removal or retirement of
the Servicer in accordance with this clause.
RELEASE
3.11 When it retires or is removed, the Servicer is released from
all obligations in relation to each Relevant Trust arising
after the date of its retirement or removal becoming
effective, other than its obligations under clause 3.10.
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TITLE PERFECTION EVENT
3.12 Subject to the terms of the relevant Supplemental Deed and
this agreement, the Servicer will continue to act in its
capacity as Servicer of a Relevant Trust after a Title
Perfection Event has occurred in respect of that Relevant
Trust.
4 CUSTODIAN
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STANDARD
4.1 The Servicer's duties and responsibilities in its capacity
as custodian under this agreement are to:
(a) hold as custodian under this agreement at the direction
of the Issuer Trustee each Mortgage Title Document that
it may receive on behalf of the Issuer Trustee pursuant
to a Transaction Document in accordance with its
standard safe-keeping practices and in the same manner
and to the same extent as it holds its own documents;
(b) ensure that each Mortgage Title Document is capable of
identification and is kept in a separate file in secure
premises and held separate from any other documents
held by the Servicer for another Trust or otherwise;
(c) maintain a record of the physical movement of the
relevant documents; and
(d) ensure that it is capable of locating security packets
containing the relevant documents.
INFORMATION INDEMNITY
4.2 If the Servicer:
(a) fails to supply adequate information; or
(b) supplies inaccurate or incomplete information,
in any Servicer's Statement or any computer files delivered
together with a Servicer's Statement and as a result the
Issuer Trustee is unable (when entitled to do so under this
agreement and the Master Trust Deed) to lodge and register
Transfers upon the occurrence of a Title Perfection Event,
then the Servicer indemnifies the Issuer Trustee for all
actions, loss, damage, costs, charges and expenses suffered
as a result.
AUDITOR REVIEW
4.3 The Global Trust Manager must retain the Auditor of the
Relevant Trust to conduct periodic reviews (at the intervals
determined in accordance with clause 4.6) in respect of the
Servicer's role as custodian under this agreement. The
Auditor must review:
(a) the custodial procedures adopted by the Servicer; and
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(b) the accuracy of information in respect of the Mortgage
Loans contained in the most recent Servicer's Statement
or on the computer diskette accompanying the most
recent Servicer's Statement.
4.4
(a) In respect of the review referred to in clause 4.3(a),
the Global Trust Manager must instruct the Auditor of
the Relevant Trust that its review should consist of
reporting on whether:
(i) the Mortgage Loans forming part of the Assets of
the Relevant Trust are capable of identification
and are distinguishable from the other assets of
the Servicer;
(ii) controls exist such that the Mortgage Title
Documents relating to such Mortgage Loans may not
be removed or tampered with except with
appropriate authorisation; and
(iii) an appropriate tracking system is in place and
such that the location of the security packages
containing the Mortgage Title Documents in
respect of the Mortgage Loans of the Relevant
Trust can be detected at any time.
(b) In respect of the review referred to in clause 4.3(b),
the Global Trust Manager must instruct the Auditor of
the Relevant Trust to review a sample of security
packets containing the Mortgage Title Documents in
respect of the Mortgage Loans then forming part of the
Assets of the Relevant Trust to determine whether they
contain the following:
(i) an original counterpart of the corresponding
Mortgage and each Collateral Security; and
(ii) the certificate of title (if any) in respect of
the Land the subject of the Mortgage.
If such security packets do not contain any of the
foregoing, the Auditor must determine if there is any
adequate explanation regarding the documents not in the
security packets or whether the security packets or the
Servicer's records indicate the location of the missing
documents. The Global Trust Manager must instruct the
Auditor to confirm (after having conducted the above
review) the accuracy of the information in respect of
the Mortgage Loans contained in the Servicer's
Statement and the computer diskette referred to in
clause 4.3.
DOCUMENT CUSTODY AUDIT REPORT
4.5 The Global Trust Manager must instruct the Auditor of the
Relevant Trust to provide a document custody audit report
("DOCUMENT CUSTODY AUDIT REPORT") to the Issuer Trustee in
which the Auditor, based on its reviews referred to in
clause 4.3, specifies a grade of the
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overall custodial performance by the Servicer, based on the
following grading system:
(a) good - all control procedures and accuracy of
information in respect of Mortgage Loans testing
completed without exception;
(b) satisfactory - minor exceptions noted;
(c) improvement requirement:
(i) base internal controls are in place but a number
of issues were identified that need to be
resolved for controls to be considered adequate;
and/or
(ii) testing of the information in respect of Mortgage
Loans identified a number of minor exceptions
which are the result of non-compliance with the
control system; or
(d) adverse - major deficiencies in internal controls were
identified. Cannot rely on the integrity of the
information in respect of Mortgage Loans in the
Servicer's Statement.
TIMING OF DOCUMENT CUSTODY AUDIT REPORTS
4.6 The Global Trust Manager must instruct the Auditor of the
Relevant Trust to prepare a Document Custody Audit Report
every year after the first Closing Date (or such other
period as may be agreed by the Global Trust Manager, the
Issuer Trustee and the Current Rating Agency). The Global
Trust Manager must require the Auditor to deliver a copy of
each such Document Custody Audit Report to the Global Trust
Manager and the Servicer.
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ADVERSE DOCUMENT CUSTODY AUDIT REPORT
4.7 If the Auditor issues a Document Custody Audit Report which
has a finding of "adverse" in relation to the Servicer's
custodial procedures, identification of documents, security
and tracking of systems, the Servicer must notify the
Australian Prudential Regulatory Authority of such report
and the Global Trust Manager must instruct the Auditor to
conduct a further Document Custody Audit Report no sooner
than 1 month but no later than 2 months after the date of
receipt by the Global Trust Manager of the "adverse"
Document Custody Audit Report. The Global Trust Manager must
instruct the Auditor to deliver the further Document Custody
Audit Report to the Issuer Trustee, with a copy to the
Global Trust Manager and the Servicer. The Servicer must
then forward a copy of the further Document Custody Audit
Report to the Australian Prudential Regulatory Authority
(and confirm in writing to the Global Trust Manager and the
Issuer Trustee that it has done so).
CUSTODY TRANSFER EVENT
4.8 The Issuer Trustee may terminate the Servicer's appointment
as custodian if any of the following occurs:
(a) the Servicer has not complied with the requirements of
this agreement to the satisfaction of the Auditor and a
further Document Custody Audit Report pursuant to
clause 4.7 is "adverse";
(b) the long-term rating of the Servicer is downgraded
below the following rating levels for each Relevant
Trust:
(i) "BBB" by S&P;
(ii) "BBB" by Fitch; or
(iii) "Baa2" by Moody's;
(c) the Servicer is in default under a servicing agreement
between it and any other person, and by reason of the
default that other person removes any documents in the
Servicer's custody under the servicing agreement where
that person would otherwise not have been entitled to
do so; or
(d) a Servicer Termination Event has occurred and continues
to exist.
The Issuer Trustee must immediately upon becoming actually
aware of the occurrence of any of the events listed in this
clause deliver a notice to the Servicer of the occurrence of
the relevant event. Upon receipt of such notice the Servicer
must transfer custody of the Mortgage Title Documents
relating to the Mortgage Loans then forming part of the
Assets of the Relevant Trust held by it to the Issuer
Trustee or another custodian nominated by the Issuer Trustee
and approved by the Global Trust Manager. If the Servicer
has not done so within 10 Business Days of the date of
termination of this agreement or such longer period as the
Issuer Trustee in its reasonable
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discretion permits, the Issuer Trustee may, in such
circumstances, commence legal proceedings to obtain
possession of the Mortgage Title Documents or enter into
the premises of the Servicer or its agents at which the
Mortgage Title Documents are stored and take away from such
premises the Mortgage Title Documents relating to the
Mortgage Loans then forming part of the Assets of the
Relevant Trust.
Subject to clause 4.9, this requirement will be treated as
being satisfied if, within 7 days of the above notice being
received, all Mortgage Title Documents in relation to at
least 90% (by number) of the Mortgage Loans are delivered to
the Issuer Trustee.
EXCEPTIONS
4.9 The obligations to deliver Mortgage Title Documents under
this clause do not extend to such documents which the
Servicer can prove, to the reasonable satisfaction of the
Issuer Trustee, are deposited with a solicitor or title
insurer (acting on behalf of the Servicer), a land titles
office, a stamp duties office or any other Governmental
Agency. The Servicer must provide a list of such documents
to the Issuer Trustee together with any which have been lost
within 10 Business Days of the above notice having been
received by it. In respect of Mortgage Title Documents that
are so deposited, the Servicer must deliver these to the
Issuer Trustee immediately upon receipt from the solicitor,
title insurer or relevant office and, in respect of Mortgage
Title Documents that are lost, the Servicer must take all
reasonable steps satisfactory to the Issuer Trustee to
promptly replace such Mortgage Title Documents.
FAILURE TO COMPLY
4.10 If the Servicer does not comply with the requirements of
clause 4.8 within the specified time limit, the Issuer
Trustee must to the extent to which it has information
available to it at the time:
(a) execute and lodge caveats in respect of all Land or
Mortgages (as the case may be) for which all Mortgage
Title Documents in respect of the Relevant Trust have
not been delivered; and
(b) initiate legal proceedings to take possession of the
Mortgage Title Documents in respect of the Relevant
Trust that have not been delivered,
and to the extent that the Issuer Trustee cannot do so, as a
result of not having information available to it to do so,
the indemnity in clause 4.2 applies.
Without limiting any right of indemnity which the Issuer
Trustee may have from the Servicer, the Issuer Trustee must
discontinue any legal proceedings commenced in accordance
with this clause if the relevant Mortgage Title Documents
are delivered to the Issuer Trustee.
EMERGENCY DOCUMENT TRANSFER
4.11 If a Title Perfection Event occurs and is notified to the
Servicer in accordance with this agreement then, subject to
clause 4.12, the
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Servicer must as soon as practicable after receipt of such
notice, transfer custody of the Mortgage Title Documents
relating to the Mortgage Loans then forming part of the
Assets of the Relevant Trust held by it, to the Issuer
Trustee or to another custodian nominated by the Issuer
Trustee and approved by the Global Trust Manager. The
Issuer Trustee may, in such circumstances, commence legal
proceedings to obtain possession of the Mortgage Title
Documents or enter into the premises of the Servicer or its
agents at which the Mortgage Title Documents are stored and
take away from such premises the Mortgage Title Documents
relating to the Mortgage Loans then forming part of the
Assets of the Relevant Trust.
EXCEPTIONS TO EMERGENCY TRANSFER
4.12 The obligations of the Servicer to deliver Mortgage Title
Documents to the Issuer Trustee do not extend to such
documents which the Servicer can prove, to the reasonable
satisfaction of the Issuer Trustee, are deposited with a
solicitor or title insurer (acting on behalf of the
Servicer), a land titles office, a stamp duties office or
any other Governmental Agency. The Servicer must provide a
list of such documents to the Issuer Trustee together with
any which have been lost within 10 Business Days of the
above notice having been received by it. In respect of
Mortgage Title Documents that are so deposited, the Servicer
must deliver these to the Issuer Trustee immediately upon
receipt from the solicitor, title insurer or relevant office
and, in respect of Mortgage Title Documents that are lost,
the Servicer must take all reasonable steps satisfactory to
the Issuer Trustee to promptly replace such Mortgage Title
Documents.
INDEMNITY
4.13 The Servicer indemnifies the Issuer Trustee against all
loss, costs, damages, charges and expenses incurred by the
Issuer Trustee:
(a) as a result of a breach by the Servicer of clause 4.8
or clause 4.11; or
(b) in connection with the Issuer Trustee taking the action
referred to in clauses 4.8, 4.10 or 4.11,
including all registration fees, stamp duty, legal fees and
disbursements (charged at the usual commercial rates of the
relevant legal services provider), transport costs and the
cost of preparing and transmitting all necessary
documentation. If the Servicer breaches its obligations
under clauses 4.8 to 4.12 it is agreed that damages alone
will not be an adequate remedy for such a breach and that
the Issuer Trustee is entitled to specific performance by
the Servicer.
ISSUER TRUSTEE TO CO-OPERATE WITH SERVICER
4.14 If the Issuer Trustee holds any Mortgage Title Document and
if the Issuer Trustee receives from the Servicer a
satisfactory undertaking, the Issuer Trustee must release to
the Servicer from time to time such Mortgage Title Documents
as are reasonably required by the Servicer to perform its
obligations as Servicer under this agreement.
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ISSUER TRUSTEE'S DUTY WHILE HOLDING MORTGAGE TITLE DOCUMENTS
4.15 While the Issuer Trustee holds any Mortgage Title Documents,
it must hold them in accordance with its standard
safekeeping practices and in the same manner and to the same
extent as it holds equivalent mortgage documents as trustee.
REAPPOINTMENT OF SERVICER AS CUSTODIAN
4.16 If following a Servicer Termination Event:
(a) the Issuer Trustee is satisfied, notwithstanding the
occurrence of the Servicer Termination Event, that the
Servicer is an appropriate person to act as custodian
of the Mortgage Title Documents; and
(b) the Current Rating Agency confirms that the appointment
of the Servicer to act as custodian of the Mortgage
Title Documents will not have an Adverse Rating Effect,
then the Issuer Trustee may by agreement with the Servicer
appoint the Servicer to act as custodian of the Mortgage
Title Documents upon such terms as are agreed between the
Issuer Trustee and the Servicer and approved by the Global
Trust Manager.
5 SERVICER'S LIABILITY
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NO LIABILITY
5.1 The Servicer is not liable for any loss suffered by a
Secured Creditor or a Unitholder except to the extent that
such loss may be caused by:
(a) a breach by the Servicer of its obligations under this
agreement or the relevant Supplemental Deed in respect
of the Relevant Trust; or
(b) an act or omission by any delegate of the Servicer
appointed in connection with clause 2.13 or 2.14 of
this agreement.
INDEMNITY
5.2 The Servicer indemnifies the Issuer Trustee in respect of a
Relevant Trust in respect of all costs, damages, losses and
expenses incurred as a result of any Servicer Termination
Event (including, without limitation, in relation to that
Relevant Trust the costs of the appointment of a new
Servicer in accordance with clause 3) or a failure by the
Servicer to perform its duties under this agreement except
to the extent such costs, damages, losses or expenses are
incurred as a result of the fraud, negligence or breach of
trust of the Issuer Trustee.
6 REMUNERATION AND EXPENSES
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SERVICER FEES
6.1 The Servicer is entitled to a fee from the Assets of the
Relevant Trust for performing its functions and duties under
this agreement in respect
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of each Relevant Trust, in an amount calculated and payable
in accordance with the relevant Supplemental Deed.
EXPENSES
6.2 Unless paid by or on behalf of the relevant Debtor, the
Servicer will pay from its servicing fee all reasonable
expenses incurred in connection with servicing the Mortgage
Loans of a Relevant Trust including expenses related to the
collection of the Mortgage Loans, but excluding any expenses
relating to the enforcement and recovery of Mortgage Loans
provided that where the consent of a Mortgage Insurer is
required in order for an expense to be reimbursed by that
Mortgage Insurer, that consent must be obtained.
6.3 All expenses reasonably and properly incurred by the
Servicer in connection with the enforcement and recovery of
defaulted Mortgage Loans of a Relevant Trust including
expenses relating to any court proceedings, arbitration or
other dispute are reimbursable out of the Assets of that
Relevant Trust.
6.4 The fee payable to the Servicer is inclusive of GST. The
Servicer will provide the Issuer Trustee any reasonably
documentation required for GST purposes so as to enable the
Issuer Trustee to receive an input tax credit or tax refund
for tax purposes.
PART C - GENERAL
7 PAYMENTS
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PAYMENTS GENERALLY
7.1 Each payment to be made by a party to another party under
this agreement or a Supplemental Deed must be made on the
due date for payment in such manner as the Global Trust
Manager and Issuer Trustee may determine.
NO DEDUCTION
7.2 Each payment to be made by the Servicer to the Issuer
Trustee or the Global Trust Manager under this agreement or
the relevant Supplemental Deed except to the extent agreed
to be set off under that Supplemental Deed must be made in
full, free and clear of any set off, restriction or
condition and without any deduction or withholding other
than as required by law.
8 NOTICES
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NOTICES
8.1 Any notice, approval, consent or other communication in
connection with this agreement:
(a) must be given by an Authorised Person of the relevant
party; and
(b) must be in writing; and
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(c) must be left at the address of the addressee or sent by
prepaid ordinary post to the address of the addressee
or sent by facsimile to the facsimile number of the
addressee, or sent by e-mail to the e-mail address of
the addressee specified in clause 8.2 or any other
address, facsimile number or e-mail address any party
may from time to time notify to the other parties as
its address for service of communications pursuant to
this agreement.
INITIAL ADDRESSES
8.2 The initial address and facsimile numbers of each party are:
ISSUER TRUSTEE:
Address: Level 3
39 Hunter Street
Sydney NSW 2000
Facsimile: 61 2 9221 7870
Attention: Manager, Securitisation
Email: (as notified from time to time)
GLOBAL TRUST MANAGER:
Address: 7301 Baymeadows Way
Jacksonville Florida 32256
United States of America
Facsimile: 904 281 3062
Attention: General Counsel
E-mail: [email protected]
SERVICER:
Address: Level 1
120 Spencer Street
Melbourne Vic 3000
Facsimile: 61 3 9601 7600
Attention: Head of Servicing and Head of Securitisation
E-mail: not applicable
TIME EFFECTIVE
8.3 Unless a later time is specified in it a notice, approval,
consent or other communication takes effect from the time it
is received.
RECEIPT
8.4 A letter, facsimile or e-mail is taken to be received:
(a) in the case of a posted letter, on the third (seventh,
if posted to or from a place outside Australia) day
after posting;
(b) in the case of a facsimile, on production of a
transmission report by the machine from which the
facsimile was sent which indicates that the facsimile
was sent in its entirety to the facsimile number of the
recipient notified for the purpose of this clause; and
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(c) in the case of an e-mail, on receipt by the sender of
an e-mail from the recipient stating that the e-mail
was delivered in its entirety and the contents and
attachments of the e-mail have been received.
However, if the deemed receipt of any notice is not before
4.00pm on a Business Day at the address of the recipient, it
is deemed to have been received at the commencement of
business on the next Business Day.
9 AMENDMENTS TO THIS AGREEMENT
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AMENDING POWER
9.1 Subject to this clause 9.1 and to any approval required by
law and by clause 9.2, and provided that 10 Business Days
prior notice of the proposed amendment has been given to
each Current Rating Agency, the Issuer Trustee, the Global
Trust Manager and the Servicer by agreement may amend, add
to or revoke any provision of this agreement (including this
clause 9.1) as it applies to any Relevant Trust if the
amendment, addition or revocation:
(a) in the opinion of the Issuer Trustee or of a barrister
or solicitor instructed by the Issuer Trustee is
necessary or expedient to comply with or be consistent
with the provisions of any statute, ordinance,
regulation or by-law or with the requirement of any
statutory authority;
(b) in the opinion of the Issuer Trustee is made to correct
a manifest error or is of a formal, technical or
administrative nature only;
(c) in the opinion of the Issuer Trustee or the Global
Trust Manager will enable the provisions of this
agreement to be more conveniently, advantageously,
profitably or economically administered;
(d) in the opinion of the Issuer Trustee or the Global
Trust Manager is otherwise desirable for any reason;
(e) is considered by the Issuer Trustee not to be
materially prejudicial to the interests of the
Noteholders as a whole or the interests of any
individual Noteholder or group of Noteholders; or
(f) in the reasonable opinion of the Issuer Trustee or of
legal counsel appointed by the Issuer Trustee is
required by, is a consequence of, is consistent with or
is appropriate or expedient as a consequence of, any
amendment to any statute, regulation or requirements of
any Governmental Agency (including, without limitation,
any amendment, addition or revocation which is in the
opinion of the Issuer Trustee appropriate or expedient
as a result of any amendment to any legislation dealing
with, or associated with, taxation or any
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ruling by the Commissioner or Deputy Commissioner of
Taxation or any government announcement or statement
that has or may have the effect of altering the manner
or basis of taxation of trusts generally or of trusts
similar to any of the Trusts).
CONSENT REQUIRED
9.2 If in the reasonable opinion of the Issuer Trustee any
amendment, addition or revocation referred to in clause
9.1(d) will be or is likely to become prejudicial to the
interests of Noteholders of a particular Class of the
Relevant Trust or to the interests of all Noteholders of the
Relevant Trust, the amendment, addition or revocation may be
effected only if in accordance with clause 9.3 or 9.4 (as
the case may be).
AMENDMENTS PREJUDICIAL TO NOTEHOLDERS OF A CLASS
9.3 Subject to clause 9.4, if in the opinion of the Issuer
Trustee any amendment, addition or revocation referred to in
clause 9.1(d) will be or is likely to become prejudicial to
the interests of Noteholders of a particular class, the
amendment, addition or revocation may only be effected if
the relevant Noteholders pass an Extraordinary Resolution
approving such amendment, addition or revocation in
accordance with this deed.
AMENDMENTS PREJUDICIAL TO ALL NOTEHOLDERS
9.4 If in the opinion of the Issuer Trustee, any amendment,
addition or revocation referred to in clause 9.1(d) will be
or is likely to become prejudicial to the interests of all
Noteholders in respect of the Trust:
(a) the amendment, addition or revocation may only be
effected if the relevant Noteholders pass an
Extraordinary Resolution approving such amendment,
addition or revocation in accordance with this deed;
and
(b) there will not be a separate Extraordinary Resolution
required for each class of Noteholders pursuant to
clause 9.3.
9.5 The Issuer Trustee will be entitled to assume that any
proposed alteration, addition or revocation referred to in
clause 9 will not be materially prejudicial to the interests
of a Class of Noteholders or all Noteholders if each of the
Current Rating Agencies confirms in writing that if the
alteration, addition or revocation is effected this will not
lead to a reduction, qualification or withdrawal of the then
rating given, respectively, to the Class of Notes, or to
each Class of Notes, by the Current Rating Agency.
10 GOVERNING LAW
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GOVERNING LAW
10.1 This agreement is governed by the law in force in the
Australian Capital Territory and the rights, liabilities and
obligations of the Global Trust Manager, Issuer Trustee and
Servicer are governed by the laws in force in the Australian
Capital Territory.
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SUBMISSION TO JURISDICTION
10.2 Each party irrevocably and unconditionally submits to the
non-exclusive jurisdiction of the courts of the Australian
Capital Territory and courts of appeal from them. Each party
waives any right it has to object to an action being brought
in those courts including, without limitation, by claiming
that the action has been brought in an inconvenient forum or
that those courts do not have jurisdiction.
SERVICE
10.3 Without preventing any other mode of service, any document
in an action (including, without limitation, any writ of
summons or other originating process or any third or other
party notice) may be served on any party by being delivered
to or left for that party at its address for service of
notices under clause 8.
11 LIMITED RECOURSE
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Clause 2 of the Definitions Schedule applies to this
agreement as if set out in full in it (with any
consequential changes as are necessary to give effect to
that clause in this agreement).
12 COUNTERPARTS
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This agreement may consist of a number of counterparts and
the counterparts taken together constitute one and the same
instrument.
EXECUTED as a agreement in the Australian Capital Territory.
<PAGE>
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EXECUTION PAGE
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SIGNED by )
on behalf of HOMESIDE GLOBAL )
MBS MANAGER, INC. in the presence of: )
)
....................................... )
Signature of witness )
)
....................................... )
Name of witness (block letters) )
)
....................................... )
Address of witness )
) ................................
....................................... ) By executing this agreement the
Occupation of witness ) signatory states that the
) signatory has received no
) notice of revocation of the
) authority pursuant to which this
agreement is executed
SIGNED by )
as attorney for )
PERPETUAL TRUSTEE COMPANY LIMITED )
under power of attorney dated )
)
in the presence of: )
)
....................................... )
Signature of witness )
)
....................................... )
Name of witness (block letters) )
)
....................................... ) ................................
Address of witness ) By executing this agreement the
) attorney states that the
....................................... ) attorney has received no notice
Occupation of witness ) of revocation of the power of
attorney
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SIGNED by )
as attorney for NATIONAL )
AUSTRALIA BANK LIMITED under )
power of attorney dated )
)
in the presence of: )
)
....................................... )
Signature of witness )
)
....................................... )
Name of witness (block letters) )
)
....................................... ) ................................
Address of witness ) By executing this agreement the
) attorney states that the
....................................... ) attorney has received no notice
Occupation of witness ) of revocation of the power of
) attorney
