Custodian Agreement
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Xx.Xxxxxx Custodial Pty Limited
(Custodian);
Crusade Management Limited
(Manager
National Mutual Trustees Limited
(the Trustee).
Xxxxx Xxxxx & Xxxxxxx
The Chifley Tower
0 Xxxxxxx Xxxxxx
Xxxxxx XXX 0000
Xxxxxxxxx
Tel 00 0 0000 0000
Fax 00 0 0000 0000
(Copyright) Copyright Xxxxx Xxxxx & Xxxxxxx 1999
Custodian Agreement Xxxxx Xxxxx & Xxxxxxx
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Table of Contents
1. Definitions and interpretation 3
1.1 Definitions 3
1.2 Interpretation 5
1.3 Limitation of Trustee's Liability 5
1.4 Supplementary terms notice 6
1.5 Knowledge of the Trustee 6
1.6 Knowledge of the Custodian 6
2. Appointment of the custodian 6
2.1 Appointment 6
2.2 General duties and standard of care 6
2.3 The Custodian's power to delegate 6
2.4 The Custodian's power to appoint advisers 7
2.5 Legal title 7
2.6 License to enter Premises 7
3. Duties and responsibilities of the custodian 7
3.1 General 7
3.2 Locate and Access 8
3.3 Audit 8
3.4 Transfer of custody 8
4. Undertakings 9
4.1 The custodian's undertakings 9
4.2 Material adverse effect 10
5. Custodial procedures 10
5.1 No liability for compliance 10
5.2 Amendments to Custodial Procedures 11
6. The custodian fees 11
6.1 Fee 11
6.2 Expenses of the Custodian 11
7. Termination 11
7.1 Expiry of Term 11
7.2 Custodial transfer event/custodial transfer trigger 11
7.3 Resignation 11
7.4 Survival 12
7.5 Release of outgoing Custodian 12
7.6 New Custodian to execute deed 12
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7.7 Settlement and discharge 12
8. Indemnity 12
8.1 Indemnity 12
8.2 Limitation of liability 13
8.3 No liability for acts of certain persons 13
8.4 No liability for loss etc 13
8.5 Method of claiming under indemnity 13
8.6 Time of Payment 13
9. Representations and warranties 14
9.1 Representations and Warranties 14
9.2 Reliance 14
9.3 Survival of Representations and Indemnities 14
10. Administrative provisions 14
10.1 Notices 14
10.2 Governing Law and Jurisdiction 14
10.3 Assignment 14
10.4 Amendment 14
10.5 Severability clause 15
10.6 Costs and Expenses 15
10.7 Waivers: remedies cumulative 15
SCHEDULE 1 17
AUDIT 17
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Date
Parties
1. XX.Xxxxxx Custodial Pty Limited (ACN 003 347 411)
incorporated in New South Wales of Xxxxx 0, 000 Xxxxxx
Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx, 0000 (Custodian);
2. Crusade Management Limited (ACN 072 715 916) of 0-00
Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxxx Xxxxx 0000
(Manager); and
3. National Mutual Trustees Limited (ACN 004 029 841)
incorporated in Victoria of Xxxxx 0, 00 Xxxxxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxxx, Xxxxxxxx, 0000 in its capacity
as trustee of each Relevant Trust (the Trustee).
Recitals
A The Trustee and the Manager wish to retain the services of
the Custodian to provide custodial services in relation to
the Relevant Documents.
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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, a
Supplementary Terms Notice or a Servicing Agreement in relation to a
Relevant Trust have the same meaning and the following definitions
apply unless a different meaning is given in a Supplementary Terms
Notice in relation to a Relevant Trust or the context otherwise
requires.
Audit Date means a date not later than the first anniversary of the
date of this Agreement and every 12 months after that date during the
Term.
Custodial Procedures means those policies and procedures of the
Custodian relating to the collection, storage and safekeeping, filing
and general management of the Relevant Documents and the Security
Packets, which have been approved in advance by the Trustee, the
Manager and the Designated Ratings Agencies.
Custodial Services means the services provided or to be provided by
the Custodian under this Agreement.
Custodial Transfer Event means the occurrence of any of the
following:
(a) an Insolvency Event occurs with respect to the Custodian;
(b) for so long as the Custodian is a Related Body Corporate of
the Approved Seller:
(i) the long-term rating of the Approved Seller falls below
BBB from S&P, Baa2 from Xxxxx'x or BBB from Fitch IBCA;
or
(ii) a Title Perfection Event occurs;
(c) the Custodian fails to comply with the Custodial Procedures
or any of its other obligations under any Transaction
Document and such action has had, or, if continued will
have, a Material Adverse Effect (as determined by the
Trustee and the Manager) and, if capable of remedy, the
Custodian does not remedy that failure within the earlier of
30 days after:
(i) the Custodian becoming aware of that failure; and
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(ii) receipt of a notice from either the Trustee or the
Manager;
(d) any representation, warranty or certification made by the
Custodian is incorrect when made and is not waived by the
Trustee or remedied, if capable of remedy, to the Trustee's
reasonable satisfaction within 45 days after notice from the
Trustee, and the Trustee determines that breach would have a
Material Adverse Effect;
(e) if it is unlawful for the Custodian to perform the Custodial
Services; or
(f) a Servicer Transfer Event.
Custodial Transfer Trigger means a Further Audit resulting in an
adverse report.
Eligible Custodian means any suitably qualified person whose
appointment as the Custodian under this Agreement will not adversely
affect the rating assigned to any Notes by a Designated Rating
Agency.
Further Audit has the meaning given in clause 3.3(c).
Law means any statute, rule, regulation, ordinance, order or decree
of any Government Agency, and includes, without limitation the
Consumer Credit Legislation and the Code of Banking Practice.
Master Trust Deed means the Master Trust Deed between the Trustee,
the Manager and St. Xxxxxx Bank Limited dated on or about the date of
this Agreement.
Material Default means, with respect to a Receivable:
(a) a failure by an Obligor to pay any amount pursuant to the
relevant Receivable which failure causes the Receivable to
be in Arrears and which failure to pay continues for a
period of 90 days; or
(b) the occurrence of an event of default, howsoever described
(other than a failure by an Obligor to pay an amount under
the relevant Receivable) under that Receivable or any
related Receivable Right unless the Custodian reasonably
determines that such event of default is of a minor or
technical nature and will not result in a Material Adverse
Effect.
Premises means the area specified as such in the relevant
Supplementary Terms Notice relating to a Relevant Trust.
Receivable has the meaning in the Master Trust Deed, but relates only
to Receivables held by the Trustee under a Relevant Trust.
Receivable Rights has the meaning specified in the Master Trust Deed,
but relates only to Receivable Rights held by the Trustee under a
relevant Trust.
Receivable Securities has the meaning in the Master Trust Deed, but
relates only to Receivable Securities held by the Trustee under a
Relevant Trust.
Record of Movements has the meaning given in clause 3.1(c).
Relevant Document has the meaning given in the Master Trust Deed.
Relevant Trust means a Trust in relation to which the Custodian has
been appointed, and has agreed to act, as the Custodian under clause
2.1 and a Supplementary Terms Notice.
Security Packet means, in relation to a Receivable, each packet of
Relevant Documents relating to that Receivable.
Security Packet Audit means, at any time, an inventory of Security
Packets conducted by the Custodian to verify location of the Security
Packets.
Security Vault means any security document vault located on the
Premises in which any Security Packets or Relevant Documents are
stored.
Term means the period from the date of this Agreement until the
earlier of:
(a) the date on which this Agreement is terminated pursuant to
clause 7.2;
(b) the date which is one month after the Notes in relation to
each Relevant Trust have been redeemed in full in accordance
with the Transaction
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Documents and the Trustee ceases to have any obligations
to any Creditor in relation to any Trust;
(c) the date on which the Trustee replaces the Custodian with an
Eligible Custodian; and
(d) the date on which the Custodian is replaced after resigning
under clause 7.3.
Supplementary Terms Notice means each Supplementary Terms Notice
dated on or after the date of this agreement relating to each
Relevant Trust.
1.2 Interpretation
The provisions of clause 1.2 of the Master Trust Deed apply to this
Agreement, as if set out in full, and on the basis that a reference
in clause 1.2(e), (f), (g), (k) or (l) to "this Deed" is a reference
to this Agreement.
1.3 Limitation of Trustee's Liability
(a) General
Clause 30 of the Master Trust Deed applies to the
obligations and liabilities of the Trustee and the Manager
under this Agreement.
(b) Liability of Trustee limited to its right to indemnity
(i) The Trustee enters into this Agreement only in its
capacity as trustee of each Trust and in no other
capacity (except where the Transaction Documents provide
otherwise). Subject to paragraph (iii) below, a liability
arising under or in connection with this Agreement or a
Trust can be enforced against the Trustee only to the
extent to which it can be satisfied out of the assets and
property of the relevant Trust which are available to
satisfy the right of the Trustee to be exonerated or
indemnified for the liability. This limitation of the
Trustee's liability applies despite any other provision
of this Agreement and extends to all liabilities and
obligations of the Trustee in any way connected with any
representation, warranty, conduct, omission, agreement or
transaction related to this Agreement or a Trust.
(ii) Subject to paragraph (iii) below, no person (including
any Relevant Party) may take action against the Trustee
in any capacity other than as trustee of the relevant
Trust or seek the appointment of a receiver (except under
the Security Trust Deed), or a liquidator, an
administrator or any similar person to the Trustee or
prove in any liquidation, administration or arrangements
of or affecting the Trustee.
(iii) The provisions of this clause 1.3 shall not apply to any
obligation or liability of the Trustee to the extent that
it is not satisfied because under a Transaction Document
or by operation of law there is a reduction in the extent
of the Trustee's indemnification or exoneration out of
the Assets of the relevant Trust as a result of the
Trustee's fraud, negligence, or Default.
(iv) It is acknowledged that the Relevant Parties are
responsible under this Agreement or the other Transaction
Documents for performing a variety of obligations
relating to the Trust. No act or omission of the Trustee
(including any related failure to satisfy its obligations
under this Agreement) will be considered fraud,
negligence or Default of the Trustee for the purpose of
paragraph (iii) above to the extent to which the act or
omission was caused or contributed to by any failure by
any Relevant Party or any person who has been delegated
or appointed by the Trustee in accordance with the
Transaction Documents to fulfil its obligations relating
to a Trust or by any other act or omission of a Relevant
Party or any such person.
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(v) In exercising their powers under the Transaction
Documents, each of the Trustee, the Security Trustee and
the Noteholders must ensure that no attorney, agent,
delegate, receiver or receiver and manager appointed by
it in accordance with this Agreement or any other
Transaction Documents has authority to act on behalf of
the Trustee in a way which exposes the Trustee to any
personal liability and no act or omission of any such
person will be considered fraud, negligence, or Default
of the Trustee for the purpose of paragraph (iii) above.
(vi) In this clause, Relevant Parties means each of the
Manager, the Servicer, the Custodian, the Calculation
Agent, each Paying Agent, the Note Trustee and the
provider of any Support Facility.
(vii) Nothing in this clause limits the obligations expressly
imposed on the Trustee under the Transaction Documents.
1.4 Supplementary terms notice
This Agreement is subject to the Supplementary Terms Notice for each
Relevant Trust. In case of any inconsistency, the relevant
Supplementary Terms Notice shall prevail.
1.5 Knowledge of the Trustee
In relation to the Trust, the Trustee will be considered to have
knowledge or notice of or be aware of any matter or thing if the
Trustee has knowledge, notice or awareness of that matter or thing by
virtue of the actual notice or awareness of the officers or employees
of the Trustee who have day to day responsibility for the
administration of the Trust.
1.6 Knowledge of the Custodian
For the purposes of this Agreement, the Custodian will only be
considered to have knowledge, notice of or to be aware of any thing
if the Custodian has knowledge, notice or awareness of that thing by
virtue of the actual knowledge, notice or awareness of the officers
or employees of the Custodian who have day to day responsibility for
carrying out its obligations under this Agreement.
2. Appointment of the custodian
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2.1 Appointment
The Manager and the Trustee appoint the Custodian to perform the
Custodial Services during the Term for each Trust in relation to
which the Custodian is specified as, and agrees to act as, the
Custodian in the relevant Supplementary Terms Notice. By executing a
Supplementary Terms Notice, the Custodian shall be taken to have
accepted that appointment, and agreed to perform the Custodial
Services in relation to that Trust in accordance with this Agreement.
2.2 General duties and standard of care
The Custodian shall provide the Custodial Services:
(a) in accordance with this Agreement;
(b) to the extent not provided in this Agreement, in accordance
with the Custodial Procedures; and
(c) to the extent not covered by clauses 2.2(a) and (b), by
exercising the degree of diligence and care expected of an
appropriately qualified custodian of documents.
2.3 The Custodian's power to delegate
(a) Without in any way affecting the generality of the above, the
Custodian may in carrying out and performing its duties and
obligations contained
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in this Agreement delegate all Custodial Services (whether or
not requiring or involving the Custodian's judgment or
discretion) to its officers and employees, the Servicer and to
such firms of solicitors as are approved by the Trustee.
(b) Despite any delegation or appointment under paragraph (a) of
this clause, the Custodian shall remain liable for the
performance of the Custodial Services in accordance with this
Agreement and for the acts or omissions of any delegate and
shall be solely responsible for the fees and expenses of such
delegate.
2.4 The Custodian's power to appoint advisers
In accordance with its ordinary course of business, the Custodian may
appoint and engage and act upon the opinion, advice or information
obtained from any solicitors, barristers, accountants, contractors,
qualified advisers and such other persons as may be necessary, usual
or desirable for the purpose of enabling the Custodian properly to
exercise and perform its duties and obligations under this Agreement.
2.5 Legal title
The Custodian agrees that, upon being directed to do so by the
Trustee following a Title Perfection Event for a Relevant Trust, it
will promptly take all action to assist the Trustee and the Manager
to perfect the Trustee's legal title to the relevant Receivables and
Receivable Rights by:
(a) taking any action required or permitted by law to assist the
perfection of such legal title;
(b) delivering all Relevant Documents for that Trust to the
Trustee. If the Custodian has not done so within 10 Business
Days (or such longer period as the Trustee in its reasonable
discretion permits) the Trustee must enter any premises
(including the Premises) where those Relevant Documents are
kept, take possession of and remove those Relevant Documents.
The Custodian shall assist the Trustee in doing so; and
(c) taking any other action which the Trustee reasonably requests
it to do.
2.6 License to enter Premises
The Custodian irrevocably licenses the Trustee to enter onto the
Premises for the purpose of taking possession of, and removing, the
Relevant Documents in accordance with this Agreement and give access
to any relevant Security Vault for that purpose.
3. Duties and responsibilities of the custodian
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3.1 General
The Custodian's duties and responsibilities are to:
(a) (hold Relevant Documents) hold as custodian under this
Agreement at the direction of the Trustee each Relevant
Document that it may receive on behalf of the Trustee (or its
agent or nominee) pursuant to a Transaction Document in
accordance with the Custodial Procedures as if the Relevant
Documents were beneficially owned by the Custodian;
(b) (identify and keep separate) ensure that each Relevant
Document is capable of identification and is kept in a
Security Packet which is kept together with other Security
Packets relating to the Receivables of that Trust in a
Security Vault, and separate from other documents held by the
Custodian for another Trust, other persons or otherwise;
(c) (Record of Movements) in relation to each Relevant Trust, open
and maintain in safe custody a record of physical movement
from the Premises and between each Relevant Trust of any
Relevant Document
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held by it from time to time pursuant to this Agreement (the
Record of Movements); and
(d) (all other things) at all times during the currency of this
Agreement do all acts, matters and things which may reasonably
be required of the Custodian by the Trustee for the purposes
of, or as contemplated by, this Agreement.
3.2 Locate and Access
(a) The Custodian shall ensure that at all times it shall be able
to locate each Security Packet by way of a periodic Security
Packet Audit.
(b) Unless the Servicer requires a Relevant Document to perform
its duties as the Servicer in relation to the related
Receivable in the manner permitted by the Servicing Agreement,
or otherwise comply with its obligations under the Transaction
Documents, each Relevant Document shall be kept within a
Security Vault.
(c) Other than the Servicer requiring a Relevant Document under
clause 3.2(b), or for an audit by the Servicer's or the
Custodian's internal or external auditor, or by the auditor
under clause 3.3 of this Agreement, a Relevant Document may
only be removed from a Security Vault with the Trustee's
written approval and for the following purposes:
(i) inspection by the Trustee; or
(ii) such other purpose approved in writing by the Trustee.
3.3 Audit
(a) The Manager or the Trustee (in default of action by the
Manager) shall on each Audit Date request an independent
auditor to conduct an audit of the Custodian's custodial role
with respect to the Relevant Documents for each Relevant Trust
by considering the matters set out in Schedule 1.
(b) The terms of the instruction of that auditor must require
delivery, within one month of an Audit Date, of a certificate
addressed to the Trustee, the Custodian and the Designated
Rating Agency stating whether or not the Custodian has
complied with the matters set out in Schedule 1.
(c) Where a certificate referred to in clause 3.3(b) (the Audit
Certificate) gives an "Adverse" finding (as set out in
Schedule 1), the Trustee must direct that auditor to conduct a
further audit (the Further Audit) on a similar basis to the
audit to which the Audit Certificate related. The Further
Audit shall be conducted no later than one month after the
date of the Audit Certificate. That auditor shall then issue a
new certificate with respect to the Further Audit in the form
required by clause 3.3(b) no later than one month after the
date on which the Further Audit commenced.
(d) Subject to any bona fide confidentiality restrictions, the
Custodian shall give each auditor full access to all relevant
information and the Relevant Documents for the purpose of
conducting each audit under clause 3.3.
(e) The Trustee shall pay the reasonable fees and expenses of the
auditor with respect to any audit under this clause 3.3 from
the Trust.
(f) The auditor instructed under this clause must be instructed to
give written reasons supporting any "Adverse" finding.
(g) The Custodian shall take all reasonable steps to cure any
non-compliance identified by an audit.
3.4 Transfer of custody
If:
(a) a Custodial Transfer Event occurs and is subsisting; or
(b) a Custodial Transfer Trigger occurs,
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the Custodian must deliver the Relevant Documents at the Custodian's
expense to the Trustee, or as it directs. If the Custodian has not
done so within 10 Business Days (or such longer period as the Trustee
in its reasonable discretion permits) of the occurrence of the
Custodian Transfer Event or Custodian Transfer Trigger the Trustee
must (with assistance from the Manager) enter any premises where the
Relevant Documents are kept, take possession of and remove the
Relevant Documents and all other documents and records relating to
the Relevant Documents. The Custodian shall assist the Trustee in
doing so and will do, at its expense, all things which the Trustee or
the Manager reasonably directs it to do in relation to the Trustee
taking possession of, and removing, the Relevant Documents and all
other documents and records relating to the Relevant Documents. If
the Trustee does not have possession of the Relevant Documents within
that period it may, to the extent that it has information available
to it to do so, lodge caveats in relation to the Receivables and
Receivable Rights for which it does not hold the Relevant Documents.
4. Undertakings
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4.1 The custodian's undertakings
The Custodian undertakes that at all times during the Term it will:
(a) (notice of default) give notice in writing to the Trustee and
each Designated Rating Agency of it becoming aware of the
occurrence of any Custodial 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 perform or comply with its
obligations under this Agreement;
(ii) comply with all Laws in connection with the provision of
the Custodial Services where failure to do so would have
a Material Adverse Effect; and
(iii) comply with the Consumer Credit Legislation in
connection with the provision of the Custodial Services
so that the Trustee does not personally or in its
capacity as trustee of the Trust become liable to pay any
Civil Penalty Payments.
(c) (Material Default) if a Material Default occurs in respect to
a Receivable, take all reasonable action to assist the
Servicer and the Trustee to enforce the relevant Receivable
and the Receivable Rights;
(d) (Insurance Policies)
(i) act in accordance with the terms of any Mortgage
Insurance Policies to the extent applicable to the
Custodian; and
(ii) not do or omit to do anything which, or the omission of
which, as the case may be, could be reasonably expected
to prejudicially affect or limit its rights or the rights
of the Trustee or the Servicer under or in respect of a
Mortgage Insurance Policy to the extent those rights
relate to a Receivable and the Receivable Rights;
(e) (notification) notify the Trustee, the Manager and the
Servicer of any event which it reasonably believes is likely
to have a Material Adverse Effect promptly after becoming
aware of such event;
(f) (provide information and access on request) as soon as
reasonably practicable after being requested so to do, provide
information reasonably requested by the Trustee, the Manager
or the Servicer, with respect to all matters relating to the
Custodial Services and upon reasonable notice and at
reasonable times permit the Trustee, the
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Manager or the Servicer to enter the Premises and inspect the
Data Base in relation to each Relevant Trust and the Relevant
Documents;
(g) (Report Record of Movements) provide the Trustee and the
Manager on the last Business Day of each week a copy of an
extract from the Record of Movements applicable to that week's
movements of Relevant Documents;
(h) (comply with other obligations) comply with all its
obligations under any Transaction Document to which it is a
party;
(i) (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 Custodial
Services (other than any Tax on, or measured by reference to,
the income of a Trust or the Custodian) or where such Taxes
are incurred due to the default or breach of duty by the
Custodian, pay those Taxes itself or ensure those Taxes are
paid;
(j) (not claim) not claim any Security Interest over any Asset;
(k) (comply with Supplementary Terms Notice) comply with any
undertaking specified as an additional Custodian undertaking
in a relevant Supplementary Terms Notice, including, without
limitation, providing the Manager with any information
referred to in that Supplementary Terms Notice;
(l) (insurances) ensure that the Premises are appropriately
insured for fire and public risks, and that it has appropriate
directors and officers insurance; and
(m) (Data Base) maintain the Data Base collected, held or stored
by it in relation to each Relevant Trust and each Relevant
Document and, subject to all applicable laws, provide the
Trustee with access to the Data Base upon reasonable request
and during normal business hours.
4.2 Material adverse effect
(a) In performing the Custodial Services the Custodian shall have
regard to whether what it does, or does not do, will have any
Material Adverse Effect.
(b) The Custodian may ask the Trustee or the Manager if any action
or inaction on its part is reasonably likely to, or will, have
a Material Adverse Effect.
(c) The Custodian may rely upon any statement by the Trustee or
the Manager that any action or inaction by the Custodian is
reasonably likely to, or will, have a Material Adverse
Effect.
(d) Subject to paragraph (a), the Custodian shall not be liable
for a breach of this Agreement, or be liable under any
indemnity, in relation to any action or inaction on its
part, where it has been notified by the Trustee or the
Manager that the action or inaction is not reasonably likely
to, or will not have a Material Adverse Effect, unless the
notification was caused by the fraud, negligence or wilful
default of the Custodian.
5. Custodial procedures
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5.1 No liability for compliance
(a) The Custodian is not in breach of its duties under this
Agreement or otherwise liable to the Trustee if it complies
strictly with the relevant Custodial Procedures unless:
(i) the relevant Custodial Procedures do not materially
comply with any Law; or
(ii) the Custodian is not otherwise complying with clauses 2.2
and 4 in relation to the relevant matter or duty.
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(b) If the Custodian becomes aware that any Custodial Procedures
do not materially comply with any Law, it shall notify the
Trustee within 10 Business Days and take all reasonable steps
to rectify that non-compliance.
5.2 Amendments to Custodial Procedures
The Custodian shall not amend the relevant Custodial Procedures in
any way that would reasonably be expected to result in a Material
Adverse Effect, unless it must do so to ensure compliance with Law.
The Custodian shall notify the Trustee, the Manager and the
Designated Rating Agency of any material amendment to the relevant
Custodial Procedures.
6. The custodian fees
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6.1 Fee
The Trustee shall in accordance with, and subject to the relevant
Supplementary Terms Notice, pay to the Custodian a fee for providing
its services under this Agreement in relation to each Trust.
6.2 Expenses of the Custodian
(a) The Trustee must, in accordance with the Master Trust Deed and
the relevant Supplementary Terms Notice, on the direction of
the Manager, reimburse the Custodian for all costs and
expenses incurred by the Custodian in complying with clause
2.5.
(b) Except as provided in this clause, the Custodian shall be
responsible for all other costs and expenses of providing the
Custodial Services.
7. Termination
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7.1 Expiry of Term
This Agreement shall continue until the expiry of the Term.
7.2 Custodial transfer event/custodial transfer trigger
(a) If a Custodial Transfer Event or a Custodial Transfer Trigger
occurs, the Trustee must (unless otherwise agreed by the Note
Trustee, that agreement not to be unreasonably withheld), at
the direction of the Manager, by notice terminate this
Agreement with immediate effect. Following such action, clause
3.4 shall apply.
(b) No other person will be appointed to perform all or part of
the obligations the Custodian has undertaken to perform under
this Agreement unless:
(i) the Trustee has terminated this Agreement in accordance
with the provisions of paragraph (a); or
(ii) the Custodian has resigned in accordance with clause 7.3,
and that person is either an Eligible Custodian or the
Trustee.
7.3 Resignation
(a) The Custodian shall not resign without first giving 3 months'
notice to the Designated Rating Agency, the Manager, the
Servicer and the Trustee. The Manager and the Trustee shall
use reasonable endeavours to procure the appointment of a
replacement Custodian which is an Eligible Custodian. The
Custodian shall assist the Manager and the Trustee in
procuring such appointment if requested.
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(b) If an Eligible Custodian has not been appointed to be the
Custodian by the expiration of that 3 month notice period, the
Custodian must continue to act as Custodian until such an
Eligible Custodian is appointed and be entitled to the fee
payable under clause 6 while so acting.
(c) Despite paragraph (a), the Custodian may resign as Custodian
by giving five (5) day's notice to the Designated Rating
Agency and the Manager when the appointment of a replacement
Custodian (which is an Eligible Custodian) has been procured
to take effect from the Custodian's resignation.
7.4 Survival
The obligations of the Custodian under clause 7 survive the termination
of this Agreement.
7.5 Release of outgoing Custodian
Except as provided in clause 7.4, upon retirement or removal and
provided there has been payment to the Trustee of all sums due to it
by the outgoing Custodian under this Agreement at that date
(including damages payable under clause 8), the outgoing Custodian
shall be released from all further obligations under this Agreement
but no release under this clause shall extend to any existing or
antecedent fraud, negligence or wilful default on the part of the
outgoing Custodian or its officers, employees, agents or delegates.
7.6 New Custodian to execute deed
(a) A new Custodian shall execute a deed in such form as the
Trustee may reasonably require (including any credit support
reasonably required by the Trustee) under which the new
Custodian shall undertake to the Trustee and other relevant
parties to be bound by all the covenants on the part of the
Custodian 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
Custodian shall and may afterwards exercise all the powers,
enjoy all the rights and shall be subject to all the duties
and obligations of the Custodian under the Transaction
Documents as fully as though the new Custodian had been
originally named as a party to it.
7.7 Settlement and discharge
The Trustee shall settle with the outgoing Custodian the amount of
any sums payable by the outgoing Custodian to the Trustee or by the
Trustee to the outgoing Custodian and shall give to or accept from
the outgoing Custodian a discharge in respect of those sums (subject
to clause 7.5) which shall be conclusive and binding as between the
Trustee, the outgoing Custodian, the new Custodian, the Manager, the
Beneficiaries and the Noteholders.
8. Indemnity
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8.1 Indemnity
Subject to the succeeding provision of this clause, the Custodian
fully indemnifies the Trustee from and against all direct and
indirect costs, expenses, losses, damages, liabilities or actions
arising or resulting from any action or conduct undertaken or not
taken by the Custodian or its officers, employees or agents including
as a consequence of a Custodial Transfer Event or a Custodial
Transfer Trigger, a failure by the Custodian to perform its duties
under this Agreement, including, without limitation, a failure to
deliver the Relevant Documents to the Trustee when it is required to
do so or a breach by the Custodian of its representations and
warranties under this Agreement.
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8.2 Limitation of liability
The Custodian 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 or accurate;
(b) if it fails to do anything because it is prevented or hindered
from doing it by any Law; or
(c) subject to the Corporations Law, if a person (other than a
delegate or agent of the Custodian) fails to carry out an
agreement with the Trustee or the Custodian in connection with
the Custodial Services (except when the failure is due to the
Custodian's own neglect, fraud or default).
8.3 No liability for acts of certain persons
If the Custodian relies in good faith on an opinion, advice,
information or statement given to it by a person, the Custodian 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 Custodian; or
(b) it would not be reasonable to rely upon the opinion, advice,
information or statement from the person who gives it; or
(c) where that person is a delegate or agent of the Custodian.
A person will be regarded as independent notwithstanding that the
person acts or has acted as adviser to the Custodian so long as
separate instructions are given by the Custodian to that person.
However, officers and employees of Xx.Xxxxxx and its Related Bodies
Corporate will not be regarded as independent.
8.4 No liability for loss etc
The Custodian 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, the
Manager or the Servicer or the act or omission of the Trustee,
the Manager or the Servicer except to the extent that it is
caused by the Custodian'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, the Manager or
the Servicer except to the extent that the loss, cost,
liability or expense is caused by the Custodian's own fraud,
negligence or wilful default.
8.5 Method of claiming under indemnity
The Custodian shall not be obliged to pay any indemnity under this
Agreement, unless:
(a) the Trustee first establishes that there has been a breach
that has caused loss;
(b) the indemnity claimed represents no more than the loss
incurred as a result of the breach; and
(c) the Trustee first gives the Custodian a written notice
specifying:
(i) the quantum of the claim; and
(ii) the basis of the claim.
8.6 Time of Payment
The Custodian shall pay any amount it is required to pay under this
clause within 7 Business Days of receipt of notice under clause 8.5.
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9. Representations and warranties
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9.1 Representations and Warranties
The Custodian makes the representations and warranties in clause 27
of the Master Trust Deed in relation to itself for the benefit of the
Trustee.
9.2 Reliance
The Custodian acknowledges that the Trustee has entered into this
Agreement in reliance on the representations and warranties in clause
9.1.
9.3 Survival of Representations and Indemnities
(a) All representations and warranties in a Transaction Document
survive the execution and delivery of the Transaction
Documents.
(b) Each indemnity in this Agreement:
(i) is a continuing obligation;
(ii) is a separate and independent obligation; and
(iii) survives termination or discharge of this Agreement.
10. Administrative provisions
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10.1 Notices
All notices, requests, demands, consents, approvals or agreements to
or by a party to this Agreement:
(a) must be in writing;
(b) must be signed by an Authorised Signatory of the sender; and
(c) will be taken to be duly given or made (in the case of
delivery in person or by post or facsimile transmission) when
delivered, received or left at the address of the recipient
shown in this Agreement or to any other address which it may
have notified the sender, but if delivery or receipt is on a
day on which business is not generally carried on in the place
to which the communication is sent or is later than 4 pm
(local time), it will be taken to have been duly given or made
at the commencement of business on the next day on which
business is generally carried on in that place.
10.2 Governing Law and Jurisdiction
This Agreement is governed by the laws of New South Wales. Each of
the Custodian and the Trustee submits to the non-exclusive
jurisdiction of courts exercising jurisdiction there.
10.3 Assignment
No party may assign, novate, transfer or deal with its obligations
under this Agreement except for the creation of a charge by the
Trustee under the relevant Security Trust Deed.
10.4 Amendment
This Agreement can only be amended in writing, and provided:
(a) prior notice of any proposed amendment is given to the
Designated Rating Agency; and
(b) the amendment will not result in an adverse effect on the
ratings of any Notes.
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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) (Trustees costs and expenses) On demand the Custodian shall
reimburse the Trustee for the reasonable expenses of the
Trustee (as applicable) in relation to any enforcement of this
Agreement by the Trustee against the Custodian for breaching
this Agreement, including in each case legal costs and
expenses on a full indemnity basis and each party shall bear
their own costs (other than legal costs) relating to the
preparation execution and completion of this Agreement.
(b) (Stamp duty) In addition, the Custodian shall pay all stamp
and registration Taxes (including fines and penalties) which
may be payable or determined to be payable in relation to the
execution, delivery, performance or enforcement of this
Agreement.
(c) (Custodial Services costs and expenses) In accordance with the
relevant Supplementary Terms Notice, the Trustee shall
reimburse the Custodian for the reasonable expenses of the
Custodian (as applicable) in relation to any enforcement of
this Agreement including in each case legal costs and expenses
on a full indemnity basis, except to the extent that such
enforcement relates to a breach by the Custodian of this
Agreement.
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.
EXECUTED in . Canberra.
Each attorney executing this Agreement states that he or she has no notice of
revocation or suspension of his or her power of attorney.
SIGNED on behalf of XX.XXXXXX )
CUSTODIAL PTY LIMITED )
by its attorneys in the )
Presence of: )
-------------------------------- --------------------------------
Signature Signature
-------------------------------- --------------------------------
Print name Print name
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SIGNED on behalf of CRUSADE )
MANAGEMENT LIMITED )
by its attorneys in the )
presence of: )
-------------------------------- ----------------------------
Signature Signature
-------------------------------- ----------------------------
Print name Print name
SIGNED by NATIONAL MUTUAL )
TRUSTEES LIMITED )
(AC 004 029 841) )
by its attorneys under Power of Attorney )
dated )
who hereby declare that no notice of )
alternation to or revocation of the said )
Power of Attorney has been received by )
them in the presence of: )
-------------------------------- ----------------------------
Witness Print Name
-------------------------------- ----------------------------
Print name Print name
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SCHEDULE 1
AUDIT
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1. Each audit referred to in clause 3.3 shall involve a review of the
following:
(a) the custodial procedures adopted by the Custodian;
(b) that the Relevant Documents are capable of identification,
segregated by reference to the relevant Portfolio of
Receivables and from other mortgage title documents held by
the Custodian;
(c) that controls exist such that the Relevant Documents may not
be removed or tampered with except with appropriate
authorisation; and
(d) that an appropriate tracking system is in place such that the
location of the Relevant Documents can be detected at any
time.
2. The Auditor will review a sample of the Security Packets and confirm
that those Security Packets contain the Relevant Documents which the
Supplementary Terms indicate that they should (including, as a
minimum, the Receivable Security documents, and any Certificate of
Title if issued). If the Security Packets do not contain all such
documents the Auditor must determine if there is an adequate
explanation for that or whether the Security Packets of the
Custodian's records, indicate the location of the missing documents.
3. The Auditor's certificate referred to in clause 3.3 will set out
whether any errors detected by the Auditor in the relevant audit were
the result of isolated non-compliance with the control system
established by the Custodian under this Agreement or result from a
weakness in that control system.
4. The Auditor's certificate referred to in clause 3.3 will grade the
custodial performance of the Custodian under this Agreement based on
the following grades.
(A) Good - All control procedures and accuracy of information in
respect of Relevant Documents completed without exception,
other than immaterial and occasional variances.
(B) Satisfactory - Minor exceptions to compliance with control
procedures and accuracy of information in respect of Relevant
Documents
(C) Improvement required - 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 testing of the
relevant information in respect of Relevant Documents
identified a number of minor exceptions to compliance which
are the result of non-compliance with the control system
(D) Adverse - Major deficiencies in internal controls and the
relevant information in respect of the Relevant Documents were
identified.
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