[ALLEN ALLEN & HEMSLEY LOGO OMITTED]
INVESTMENT MANAGEMENT AGREEMENT
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INTERSTAR SECURITIES (AUSTRALIA) PTY LIMITED
PERPETUAL TRUSTEES VICTORIA LIMITED
INTERSTAR SECURITIES (AUSTRALIA) PTY LIMITED
Interstar Millennium Trusts
ALLEN ALLEN & HEMSLEY
The Chifley Tower
2 Chifley Square
Sydney NSW 2000
Australia
Tel 61 2 9230 4000
Fax 61 2 9230 5333
(C) Copyright Allen Allen & Hemsley 2000
Allen Allen
INVESTMENT MANAGEMENT AGREEMENT & Hemsley
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TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 3
1.3 Liability of Trustee limited to its right of indemnity 3
1.4 Series Notice 3
2. APPOINTMENT OF SERVICER 3
2.1 Appointment 3
2.2 General duties and standard of care 3
2.3 Powers 4
2.4 Records 4
2.5 Servicer's power to delegate 4
2.6 Servicer's power to appoint advisers 5
3. CUSTODY 5
4. UNDERTAKINGS 6
4.1 Servicing Undertakings 6
5. REPORT BY SERVICER 9
6. SERVICER FEES 9
6.1 Fee 9
6.2 Expenses of Servicer 9
7. TERMINATION 10
7.1 Expiry of Term 10
7.2 Servicer Transfer Event 10
7.3 Resignation 10
7.4 Upon termination or resignation 10
7.5 Survival 11
7.6 Release of outgoing Servicer 11
7.7 New Servicer to execute deed 11
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Allen Allen
INVESTMENT MANAGEMENT AGREEMENT & Hemsley
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7.8 Settlement and discharge 11
8. INDEMNITY 12
8.1 Indemnity 12
8.2 Limitation of liability 12
8.3 No liability for acts of certain persons 12
8.4 No liability for loss etc 12
8.5 Method of claiming under indemnity 13
8.6 Time of Payment 13
9. REPRESENTATIONS AND WARRANTIES 13
9.1 Representations and Warranties 13
9.2 Reliance 13
9.3 Survival of Representations and Indemnities 13
10. ADMINISTRATIVE PROVISIONS 14
10.1 Notices 14
10.2 Governing Law and Jurisdiction 15
10.3 Assignment 15
10.4 Amendment 15
10.5 Severability clause 16
10.6 Costs and Expenses 16
10.7 Waivers: Remedies Cumulative 16
10.8 Give effect 16
ANNEXURE 19
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INVESTMENT MANAGEMENT AGREEMENT & Hemsley
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DATE
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PARTIES
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1. INTERSTAR SECURITIES (AUSTRALIA) PTY LIMITED (ACN 087 271 109) of
367 Collins Street, Melbourne, Victoria (in this capacity, the
SERVICER);
2. PERPETUAL TRUSTEES VICTORIA LIMITED (ACN 004 027 258) of Level 4,
333 Collins Street, Melbourne, Victoria in its capacity as trustee
of each Relevant Trust (in this capacity, the TRUSTEE); and
3. INTERSTAR SECURITIES (AUSTRALIA) PTY LIMITED (ACN 087 271 109) of
367 Collins Street, Melbourne, Victoria (the TRUST MANAGER).
RECITALS
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The Trustee wants to retain the services of the Servicer to manage
the Loans in relation to certain Trusts.
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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 Series
Notice in relation to a Relevant Trust have the same meaning and the
following definitions apply unless a different meaning is given in a
Series Note in relation to a Relevant Trust or the context otherwise
requires.
ELIGIBLE SERVICER means any suitably qualified person whose appointment
by the Trustee as Servicer under this agreement will not materially
affect the rating assigned to the Notes (as confirmed by the Designated
Rating Agencies).
GENERAL INSURANCE POLICY means, in relation to a Loan, an insurance
contract for land and building insurance with respect to the property
secured by the relevant Loan Security, including fire insurance, taken
out with an insurer which:
(a) is registered by the Insurance & Superannuation Commission
under the Insurance Act 1974 (Commonwealth); and
(b) has been approved by the Trust Manager.
LAW means any statute, rule, regulation, ordinance, order or decree of
any Government Agency, and includes any Consumer Credit Legislation and
any applicable code of banking practice.
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INVESTMENT MANAGEMENT AGREEMENT & Hemsley
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MASTER TRUST DEED means the Master Trust Deed between the Trustee and
the Trust Manager dated on or about the date of this agreement.
LOAN, in relation to a Relevant Trust, has the meaning in the Master
Trust Deed (as amended by the Series Notice for that Relevant Trust),
but relates only to Loans held by the Trustee under that Relevant
Trust.
LOAN SECURITIES, in relation to a Relevant Trust, has the meaning in
the Master Trust Deed (as amended by the Series Notice for that
Relevant Trust), but relates only to Loan Securities held by the
Trustee under that Relevant Trust.
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
Series 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 5 Business Days of receipt of a
notice to do so from either the Trustee or Trust 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, an Adverse Effect (as determined by the
Trustee) and the Servicer does not remedy that failure within
30 days after the Servicer becomes aware of that failure by
receipt of a notice from either the Trustee or the Trust
Manager;
(d) any representation, warranty or certification made by the
Servicer is incorrect when made and is not waived by the
Trustee or remedied to the Trustee's reasonable satisfaction
within 90 days after notice from the Trustee, and the Trustee
determines that breach would have an Adverse Effect; or
(e) if it is unlawful for the Servicer to perform the Services.
SERVICER'S REPORT means any report of the Servicer referred to in
clause 5.
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 Documents and the Trustee ceases to have
any obligations to any Creditor in relation to any Relevant
Trust, and the Trustee and the Trust Manager notify the
Servicer that the Term has expired;
(c) the date on which the Trustee replaces the Servicer with an
Eligible Servicer; and
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INVESTMENT MANAGEMENT AGREEMENT & Hemsley
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(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 to
THIS DEED is a reference to THIS AGREEMENT.
1.3 LIABILITY OF TRUSTEE LIMITED TO ITS RIGHT OF INDEMNITY
Clause 32.16 of the Master Trust Deed is incorporated into this
agreement as if set out in full, except that any reference to DEED is
replaced by a reference to AGREEMENT and any reference to TRUST refers
to each Relevant Trust.
1.4 SERIES NOTICE
This agreement is subject to the Series Notice for each Relevant Trust.
In case of any inconsistency, the relevant Series Notice will prevail
in relation to that Relevant Trust only.
2. APPOINTMENT OF SERVICER
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2.1 APPOINTMENT
The Trustee appoints the Servicer to perform the Services for each
Relevant Trust during the Term. By executing a Series Notice, the
Servicer will be taken to have accepted that appointment, and agreed to
perform the Services in relation to that Relevant Trust in accordance
with this agreement.
2.2 GENERAL DUTIES AND STANDARD OF CARE
(a) The Servicer will act as the servicer, administrator and
manager of the Loans.
(b) In servicing and managing the Loans, the Servicer will:
(i) service and manage the Loans (or ensure that the
Loans are serviced and managed by third parties as
appointed by the Servicer from time to time):
(A) to the highest standard of accepted
servicing practice of prudent mortgage
lending and investment management
institutions;
(B) exercising a high degree of skill and care
in respect thereof; and
(C) in compliance with all relevant legislation;
and
(ii) not do any act, matter or thing that may adversely
affect the rating of any Notes then issued by the
Trustee of the Relevant Trust.
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2.3 POWERS
Subject to this agreement, the Servicer has the express power, among
other things, to the extent such action will not cause an Adverse
Effect or cause breach of any Transaction Document in respect of a
Relevant Trust:
(a) to waive any fees which may be collected in the ordinary
course of servicing the Loans or arrange the rescheduling of
interest due and unpaid following a default under any Loans;
(b) in its discretion, to waive any right in respect of any Loans
and Loan Securities in the ordinary course of servicing the
Loans and Loan Securities (including in accordance with its
normal collection procedures);
(c) to grant an extension of maturity beyond 30 years from the
date any Loan that relates to a Mortgage was made, when
required to do so by Law or a Government Agency. The
restriction on granting extensions that will have an Adverse
Effect will not apply where the extension is required by Law
or a Government Agency.; and
(d) to require any law firm preparing documents in relation to a
Loan or a Loan Security to use the pro forma documents in the
annexure or such other documents which will not have an
Adverse Effect in respect of the Relevant Trust.
2.4 RECORDS
The Servicer will keep or cause to be kept proper separate accounting
records and files of the Loans and Loan Securities in relation to each
Relevant Trust and provide, collect and maintain such information as
the Servicer may from time to time in writing be reasonably required to
provide, collect or maintain in respect of those Loans and Loan
Securities in order to provide the Services and perform its obligations
under this Agreement. Such accounting records and files will be kept at
the office of the Servicer or such other place as approved by the
Trustee in writing and will be open to the inspection of the Trustee
and/or the authorised agents of the Trustee. The Servicer will allow
such persons to take copies of any such accounting records and files.
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:
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(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);
(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 will 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 will be solely responsible for the fees
and expenses of such officer, employee, attorney, agent, delegate,
sub-delegate or sub-agent.
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.
3. CUSTODY
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(a) The Servicer shall not have the right to possession of any
Relevant Documents relating to a Relevant Trust except with
the consent of the Trustee of that Relevant Trust.
(b) The Servicer shall in no way deal with any Relevant Documents
relating to a Relevant Trust unless directed by the Trustee of
that Relevant Trust or with that Trustee's prior consent.
(c) All Relevant Documents relating to the Authorised Investments
in relation to a Relevant Trust shall be promptly deposited
with the Trustee which shall retain them in safe custody. The
Trustee will have no liability as custodian of those documents
(except as otherwise provided in the Transaction Documents in
relation to the Relevant Trust).
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(d) Notwithstanding paragraphs (a) to (c), the Servicer shall have
access to any documents in order to provide the Services and
perform its obligations under this Agreement.
4. UNDERTAKINGS
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4.1 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
the Designated Rating Agency of it becoming aware of the
occurrence of any Servicer Transfer Event;
(b) (COMPLIANCE WITH LAW)
(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 Loans and Loan
Securities and to perform or comply with its
obligations under this agreement; and
(ii) comply with all Laws in connection with servicing the
Loans and Loan Securities;
(c) (DEFAULT) upon becoming aware that any default has occurred in
respect of any Loan:
(i) promptly notify the Mortgage Insurer of that default
in accordance with the provisions of the relevant
Mortgage Insurance Policy;
(ii) subject to obtaining the prior consent of the
Mortgage Insurer, promptly take such action as the
Servicer considers necessary in relation to such
default, including:
(A) serving any notice of default upon the
Obligor or any other party;
(B) instituting and conducting legal proceedings
against the Obligor or any other party; and
(C) taking all necessary steps and engaging all
necessary persons to sell the Subject
Property pursuant to the exercise of the
power of sale authorised by the relevant
Loan Security; and
(iii) otherwise enforce the Loan and Loan Security in
accordance with the directions and requirements of
the Mortgage Insurer;
(d) (INSURANCE POLICIES)
(i) enter into:
(A) Mortgage Insurance Policies; and
(B) General Insurance Policies,
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for and on behalf of and in the name of the Trustee
and/or the mortgagee of a Loan Security whenever
required to do so, and ensure that the Trustee's
and/or mortgagee's interest is duly noted and/or
endorsed upon all such contracts;
(ii) ensure by its conduct that no Mortgage Insurance
Policy or General Insurance Policy in relation to the
Loans and Loan Securities become invalid,
unenforceable or lapse; and
(iii) not commit, or allow or cause to be committed, any
act or omission whereby any Mortgage Insurance Policy
or General Insurance Policy may be rendered void or
voidable at the option of the insurer.
(e) (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
Loan and the Loan Security (other than as contemplated by the
relevant Transaction Documents):
(i) without limiting sub-paragraph (e)(ii), unless
priority arrangements are entered into with that
third party under which the third party acknowledges
that the Loan and Loan Security rank ahead in
priority to the third party Security Interest on
enforcement for an amount not less than the Unpaid
Balance of the Loan plus such other amount as the
Servicer determines in accordance with its ordinary
course of business; or
(ii) which would rank before or pari passu with the
relevant Loan and Loan Security;
(f) (VARY TERMS) not agree to any variation, amendment or
modification of any of the terms and conditions of any Loan or
Loan Security or do any act, matter or thing which could
constitute a diminution, restriction, waiver or modification
of the Trustee's rights under that Loan or Loan Security
without the Trustee's prior written consent.
(g) (OTHER MISCELLANEOUS THINGS) procure 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
will result in the Mortgage having the ranking referred to in
the relevant eligibility criteria in the Series Notice. In
relation to any Mortgage that is not registered at the
relevant Closing Date, the Servicer will procure that it is
lodged for registration not later than 30 days after that
Closing Date;
(h) (SETTING THE INVESTMENT RATE) set the Investment Rate in
respect of any Relevant Trust as 0.25% higher than the
percentage rate of return on the Purchased Loans, and taking
into account the percentage rate of return being earned on
other Authorised Investments, which it determines will be
necessary to ensure that the Trustee has sufficient cash
available at all times to enable the Trustee to pay all
payments of
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Interest in respect of the Relevant Trust and otherwise comply
with all of the Trustee's duties and obligations under the
relevant Transactions Documents as and when they fall due,
including payment of any Approved Seller's Fee as and when it
falls due.
(i) (NOTIFICATION) notify:
(i) the Trustee and the Trust Manager of any event which
it reasonably believes is likely to have an Adverse
Effect promptly after becoming aware of such event;
and
(ii) the Trust Manager of anything else which the Trust
Manager reasonably requires regarding any proposed
modification to the terms of any Loan or Loan
Security;
(j) (PROVIDE INFORMATION AND ACCESS ON REQUEST) provide
information reasonably requested by the Trustee or the Trust
Manager, with respect to all matters relating to each Relevant
Trust and the assets of the relevant Trust, and the Trustee or
the Trust 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 and the Relevant Documents;
(k) (COMPLY WITH OTHER OBLIGATIONS) comply with all its
obligations under any Transaction Document to which it is a
party;
(l) (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 the income of a Trust) or ensure those Taxes
are paid or where such Taxes are incurred due to the default
or breach of duty by the Servicer;
(m) (NOT CLAIM) not claim any Security Interest over any Asset
(other than in accordance with the relevant Transaction
Documents);
(n) (COMPLY WITH SERIES NOTICE) comply with any undertaking
specified as an additional Servicer undertaking in a relevant
Series Notice, including providing the Trust Manager with any
information referred to in that Series Notice;
(o) (ACCOUNT TO TRUSTEE) regularly account to the Trustee in such
manner as prescribed by the Trustee from time to time;
(p) (ENFORCE LOANS) enforce the Trustee's rights pursuant to or in
connection with the Loans in accordance with the directions of
the Trustee in that regard and ensure prompt compliance by the
Obligor under each Loan;
(q) (ACT AS DIRECTED BY TRUSTEE) take all or any necessary steps
which the Trustee may direct the Servicer to take to ensure
that the Trustee's rights pursuant to or in connection with
the Loans are in no way diminished, restricted or modified;
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(r) (PERFORMING OR NON-PERFORMING LOANS) determine whether Loans
are performing or non-performing as required by the Master
Trust Deed and the Series Notice for the Relevant Trust; and
(s) (COLLECT MONEYS) arrange to collect all moneys paid or payable
under the Loans and Loan Securities and pay them into the
relevant Collection Account.
5. REPORT BY SERVICER
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On or before each date which is 3 Business Days before each Payment
Date for each Relevant Trust, if so requested by the Trust Manager, the
Servicer will prepare and submit to the Trust Manager a report and
provide such other information as the Trust Manager reasonably requires
to prepare its report (if any) under clause 17.16 of the Master Trust
Deed.
6. SERVICER FEES
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6.1 FEE
The Trustee will in accordance with, and subject to, the relevant
Series Notice (where the Series Notice so specifies) 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 will reimburse the Servicer for all legal and
selling expenses relating to the enforcement and recovery of
the Loans, 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 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.
(b) The Servicer will invoice the Trustee 3 Business Days before
each Payment Date in relation to each Relevant Trust for the
costs and expenses under paragraph (a), and will provide
reasonable details and supporting documentation in relation to
amounts to be reimbursed.
(c) This reimbursement will be in accordance with the relevant
Series Notice.
(d) Except as provided in this clause, the Servicer will be
responsible for all other costs and expenses of servicing the
Loans.
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7. TERMINATION
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7.1 EXPIRY OF TERM
This agreement will continue until the expiry of the Term.
7.2 SERVICER TRANSFER EVENT
If the Trustee has actual knowledge of the occurrence of a Servicer
Transfer Event, the Trustee will terminate this agreement with
immediate effect. The Trustee will promptly give notice of that
termination to the Trust Manager, the Servicer and the Designated
Rating Agency.
7.3 RESIGNATION
(a) The Servicer shall not resign without first giving 3 months'
notice to the Designated Rating Agency, the Trust Manager
(where the Servicer is not the Trust Manager) and the Trustee.
The Trust Manager (where the Servicer is not the Trust
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 Trust Manager
(where the Servicer is not the Trust Manager) and the Trustee
in procuring such appointment if requested.
(b) When a notice under paragraph (a) is given, the Trustee and
the Trust Manager (where the Servicer is not the Trust
Manager) shall be entitled to appoint some other person to be
the Servicer of the relevant Trust provided that person 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 shall 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
3 month notice period given under paragraph (a) above, the
Trust Manager (or if the retiring Servicer is the Trust
Manager, the Trustee) must itself act as Servicer and shall be
entitled to the fee payable under clause 6 (if any) while so
acting.
7.4 UPON TERMINATION OR RESIGNATION
Where:
(a) the Trustee has terminated this agreement in accordance with
the provisions of clause 7.2; or
(b) the Servicer has resigned in accordance with clause 7.3,
each of the following applies.
(c) The Servicer will, as soon as practicable, deliver any
Relevant Documents in its possession to the Trustee, or as it
directs. If the Servicer has not done so within 10 Business
Days (or such longer
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period as the Trustee permits) the Trustee will enter any
premises where the Relevant Documents are kept, take
possession of and remove the Relevant Documents. The Servicer
will assist in doing so. If the Trustee does not have
possession of the Relevant Documents within the specified
period of 10 Business Days it will, to the extent that it has
information available to it to do so, lodge caveats in
relation to the Loans and Loan Securities for which it does
not hold the Relevant Documents.
(d) The Servicer will promptly transfer at its own cost to the
Trustee or as the Trustee directs the relevant information
held or maintained by the Servicer in relation to this
agreement, the Loans or Loan Securities.
(e) The Trustee may appoint any other person to perform all or
part of the obligations the Servicer has undertaken to perform
under this agreement or to service any of the Loans.
7.5 SURVIVAL
The obligations of the Servicer under clause 7 survive the termination
of this agreement.
7.6 RELEASE OF OUTGOING SERVICER
Except as provided in clause 7.5, 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 deed at that date, the outgoing
Servicer will be released from all further obligations under this deed
but no release under this clause will 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.
7.7 NEW SERVICER TO EXECUTE DEED
(a) A new Servicer will execute a deed in such form as the Trustee
may reasonably require under which the new Servicer will
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 will and may afterwards exercise all the powers,
enjoy all the rights and will 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.
7.8 SETTLEMENT AND DISCHARGE
The Trustee will 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 will give to or accept from the outgoing
Servicer a discharge in respect of those sums which will be conclusive
and binding as
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between the Trustee, the outgoing Servicer, the new Servicer, the Trust
Manager, the Beneficiaries and the Noteholders.
8. INDEMNITY
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8.1 INDEMNITY
Subject to the succeeding provisions of this clause, the Servicer fully
indemnifies the Trustee from and against any expense, loss, damage or
liability which the Trustee may incur as a consequence of a Servicer
Transfer Event, or a failure by the Servicer to perform its duties
under this agreement, including a failure to deliver the Relevant
Documents to the Trustee when it is required to do so 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 know, that the document, form or list is not
genuine;
(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 fraud, negligence or wilful 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;
(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
Trust Manager or
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INVESTMENT MANAGEMENT AGREEMENT & Hemsley
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the act or omission of the Trustee or the Trust Manager except
to the extent that it is caused by the Servicer's own fraud,
negligence or wilful 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 Trust
Manager except to the extent that the loss is caused by the
Servicer's own fraud, negligence or wilful default.
This exclusion does not apply in relation to the acts or omissions of
the Trust Manager for so long as the Servicer is the Trust Manager.
8.5 METHOD OF CLAIMING UNDER INDEMNITY
The Servicer will not be obliged to pay any indemnity under this
agreement, unless:
(a) the Trustee first establishes that there has been a breach;
(b) the indemnity claimed represents no more than the loss
incurred; and
(c) the Trustee first gives the Servicer a written notice
specifying:
(i) the quantum of the claim; and
(ii) the basis of the claim.
8.6 TIME OF PAYMENT
The Servicer will 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
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9.1 REPRESENTATIONS AND WARRANTIES
The Servicer makes the representations and warranties in clause 31 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.
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10. ADMINISTRATIVE PROVISIONS
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10.1 NOTICES
(a) (METHOD OF DELIVERY) Subject to paragraph (d) any notice,
request, certificate, approval, demand, consent or other
communication to be given under this deed must:
(i) except in the case of communications by email, be in
writing and signed by an Authorised Signatory of the
party giving the same; and
(ii) be:
(A) left at the address of the addressee;
(B) sent by prepaid ordinary post to the address
of the addressee;
(C) by facsimile to the facsimile number of the
addressee; or
(D) sent by email by an Authorised Signatory of
the party giving the same to the addressee's
specified email address.
(b) (ADDRESS FOR NOTICES) The address and facsimile number of a
party is the address and facsimile number notified by that
party to the other parties from time to time.
(c) (DEEMED RECEIPT) A notice, request, certificate, demand,
consent or other communication under this deed is deemed to
have been received:
(i) where delivered in person, upon receipt;
(ii) where sent by post, on the third (seventh if outside
Australia) day after posting;
(iii) where sent by facsimile, on production by the
dispatching facsimile machine of a transmission
report which indicates that the facsimile was sent in
its entirety to the facsimile number of the
recipient; and
(iv) where sent by email, on the date that the email is
received.
However, if the time of deemed receipt of any notice is not
before 5.30 pm local time 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.
(d) (EMAIL) A notice, request, certificate, approval, demand,
consent or other communication to be given under this deed may
only be given by email where the recipient has agreed that
that communication, or communications of that type, may be
given by email.
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10.2 GOVERNING LAW AND JURISDICTION
This agreement is governed by the laws of New South Wales. Each of the
Servicer, the Trust Manager and the Trustee submits to the
non-exclusive jurisdiction of courts exercising jurisdiction there.
10.3 ASSIGNMENT
No party may assign, novate, transfer or otherwise deal with its
obligations under this agreement other than in accordance with the
provisions of the Master Trust Deed or the Series Notice of the
Relevant Trust.
10.4 AMENDMENT
(a) Subject to paragraphs (b) and (c), the parties may by an
agreement in writing make any variation, amendment or addition
to this agreement which they think proper having regard to all
the circumstances of the case subject to:
(i) the Designated Rating Agency confirming that the
variation, amendment or addition will not affect the
credit rating of any Notes in relation to the
Relevant Trust, and
(ii) the Trust Manager certifying to the Trustee that, in
the Trust Manager's opinion, the variation, amendment
or addition will not materially and adversely affect
the rights of any relevant Noteholder,
and after the execution of any such agreement this Agreement
shall be construed and take effect as varied, amended or added
to.
(b) Where a Designated Rating Agency indicates that such
variation, amendment or addition will adversely affect the
credit rating of all Notes or, if in the Trust Manager's
opinion, the rights of all Noteholders would be materially and
adversely affected by such variation amendment or addition
then the variation, amendment or addition may only be effected
by Extraordinary Resolution of all Noteholders.
(c) Where a Designated Rating Agency indicates that such
variation, amendment or addition will adversely affect the
credit rating of Notes in only one or some (but not all) of
the Classes of Notes or, if in the Trust Manager's opinion,
the rights of Noteholders in only one or some (but not all) of
the Classes of Notes would be materially and adversely
affected by such variation, amendment or addition then the
variation, amendment or addition may only be effected by
Extraordinary Resolution of Noteholders of that Class or those
Classes of Notes.
(d) The Trust Manager shall give the Designated Rating Agency at
least five Business Days' notice prior to:
(i) the parties effecting any variation, amendment or
addition to this agreement pursuant to paragraph (a);
or
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(ii) the date upon which a meeting of Noteholders is to be
held which will consider a resolution involving any
such variation, amendment or addition,
and upon any such variation, amendment or addition being
effected then the Trust Manager shall notify the Designated
Rating Agency.
10.5 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.
10.6 COSTS AND EXPENSES
(a) (TRUSTEE'S COSTS AND EXPENSES) On demand the Servicer will
reimburse the Trustee for the reasonable expenses of the
Trustee (as applicable) in relation to any enforcement of this
agreement against the Servicer or the Trust Manager including
in each case legal costs and expenses at the usual commercial
rates of the legal services provider and each party will bear
their own costs (other than legal costs) relating to the
preparation execution and completion of this agreement.
(b) (STAMP DUTY) The Servicer will 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) (SERVICES COSTS AND EXPENSES) In accordance with the Series
Notice, the Trustee will reimburse the Servicer for the
reasonable expenses of the Servicer in relation to any
enforcement of this agreement including in each case legal
costs and expenses charged at the usual commercial rates of
the legal services provider.
10.7 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.
10.8 GIVE EFFECT
Each party will sign, execute, do and perform all such other documents,
instruments, writings, acts, matters and things as may be necessary or
desirable to give effect to this agreement.
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EXECUTED in Sydney.
Each attorney executing this agreement states that he has no notice of
revocation or suspension of his power of attorney.
SERVICER
SIGNED on behalf of )
INTERSTAR SECURITIES )
(AUSTRALIA) PTY LIMITED )
by its attorney )
in the presence of: )
--------------------------------------------
Signature
- --------------------------------- --------------------------------------------
Witness Print name
- ---------------------------------
Print name
TRUSTEE
SIGNED on behalf of )
PERPETUAL TRUSTEES )
VICTORIA LIMITED )
by its attorney )
in the presence of: )
--------------------------------------------
Signature
- --------------------------------- --------------------------------------------
Witness Print name
- ---------------------------------
Print name
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INVESTMENT MANAGEMENT AGREEMENT & Hemsley
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TRUST MANAGER
SIGNED on behalf of )
INTERSTAR SECURITIES )
(AUSTRALIA) PTY LIMITED )
by its attorney )
in the presence of: )
--------------------------------------------
Signature
- --------------------------------- --------------------------------------------
Witness Print name
- ---------------------------------
Print name
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INVESTMENT MANAGEMENT AGREEMENT & Hemsley
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ANNEXURE
PRO FORMA DOCUMENTS FOR LOANS AND LOAN SECURITIES
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