Deed of Indemnity
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Xx.Xxxxxx Bank Limited
(Indemnifier);
Xx.Xxxxxx Custodial Pty Limited
(Custodian);
Crusade Management Limited
(Manager);
National Mutual Trustees Limited
(Trustee).
Xxxxx Xxxxx & Xxxxxxx
The Chifley Tower
0 Xxxxxxx Xxxxxx
Xxxxxx XXX 0000
Xxxxxxxxx
Tel 00 0 0000 0000
Fax 00 0 0000 0000
(C) Copyright Xxxxx Xxxxx & Xxxxxxx 1999
Deed of Indemnity Xxxxx Xxxxx & Xxxxxxx
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Table of Contents
1. Definitions and interpretation 1
1.1 Definitions 1
1.2 Interpretation 2
1.3 Knowledge of the Trustee 2
2. Indemnity 2
3. Variation 3
4. Xxxxxxx, remedies cumulative 3
5. Severance 3
6. Moratorium legislation 3
7. Costs and expenses 3
8. Further assurances 4
9. Assignment 4
10. Notices 4
11. Acknowledgement by indemnifier 4
12. Governing law and jurisdiction 5
13. Counterparts 5
14. Deed binding on signatories 5
15. Limitation of trustee's liability 5
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Page (i)
Deed of Indemnity Xxxxx Xxxxx & Xxxxxxx
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Date
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Parties
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1. XX.Xxxxxx Bank Limited (ACN 055 513 070) incorporated in New
South Wales of 0-00 Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxxx Xxxxx
0000 (Indemnifier);
2. XX.Xxxxxx Custodial Pty Limited (ACN 003 347 411) incorporated in
New South Wales of 0-00 Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxxx
Xxxxx 0000 (Custodian);
3. Crusade Management Limited (ACN 072 715 916) incorporated in New
South Wales of 0-00 Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxxx Xxxxx
0000 (Manager); and
4. National Mutual Trustees Limited (ACN 004 029 841) of Level 2, 00
Xxxxxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxxx, Xxxxxxxx 0000 in its
capacity as trustee of the Relevant Trust (Trustee).
Recitals
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A By the Custodian Agreement, the Custodian was appointed to
provide Custodial Services in relation to the Relevant Documents.
B By this deed, the Indemnifier indemnifies the Trustee for any
losses arising from a breach by the Custodian of its obligations
under the Custodian Agreement.
IT IS AGREED as follows.
1. Definitions and interpretation
1.1 Definitions
In this deed, terms defined in the Custodian Agreement, Master Trust
Deed or a Supplementary Terms Notice 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.
Custodian Agreement means the agreement so titled dated on or about the
same date as this deed between the Custodian, the Manager and the
Trustee by which the Custodian agrees to provide Custodial Services to
the Relevant Trust.
Master Trust Deed means the Master Trust Deed between the Trustee, the
Manager and the Indemnifier dated 14 March 1998.
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Power means a power, right or authority, discretion or remedy which is
given to the Trustee by this deed or by Law.
Supplementary Terms Notice means each Supplementary Terms Notice dated
on or after the date of this Agreement relating to a Relevant Trust.
1.2 Interpretation
The provisions of clause 1.2 of the Master Trust Deed apply to this
deed, 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 deed.
1.3 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.
2. Indemnity
(a) The Indemnifier unconditionally and irrevocably indemnifies the
Trustee in respect of:
(i) all liability, including all actions, proceedings,
judgments, damages, losses, costs and expenses of any
nature, which may be incurred or suffered by, brought,
made or recovered against the Trustee consequent on or
arising directly or indirectly out of any default or delay
by the Custodian in the performance and observance of its
obligations contained or implied in the Custodian
Agreement; and
(ii) any money payable under the Custodian Agreement (including
money which would have been money payable under the
Custodian Agreement if it were recoverable) which is not
recoverable from the Custodian for any reason, including
any legal limitation, disability or incapacity affecting
the Custodian or an obligation in the Custodian Agreement
being or becoming unenforceable, void or illegal and
whether or not:
(A) any transaction relating to that money was void or
illegal or has been avoided; or
(B) anything relating to that transaction was or ought
to have been known to the Trustee.
(b) The Indemnifier as principal debtor agrees to pay to the Trustee
on demand a sum equal to the amount described in clause 2(a).
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3. Variation
This deed covers the Custodian Agreement as amended, varied or replaced
from time to time, whether or not with the consent of or notice to the
Indemnifier.
4. Xxxxxxx, remedies cumulative
(a) No failure to exercise and no delay in exercising any Power by
the Trustee operates as a waiver. Nor does any single or partial
exercise of any Power preclude any other or further exercise of
that Power or any other Power.
(b) The Powers under this deed are in addition to, and do not exclude
or limit, any right, power or remedy provided by Law.
5. Severance
Any provision of this deed which is prohibited or unenforceable in any
jurisdiction is ineffective as to that jurisdiction to the extent of
the prohibition or unenforceability. That does not invalidate the
remaining provisions of this deed nor affect the validity or
enforceability of that provision in any other jurisdiction.
6. Moratorium legislation
To the full extent permitted by Law all legislation which at any time
directly or indirectly:
(a) lessens, varies or affects in favour of the Indemnifier any
obligation under this deed; or
(b) delays, prevents or prejudicially affects the exercise by the
Trustee of any right, power or remedy given by this deed,
is excluded from this deed.
7. Costs and expenses
On demand the Indemnifier shall indemnify the Trustee against any cost,
charge, expense, liability, outgoing or payment which the Trustee may
sustain or incur in relation to:
(a) the preparation, execution, stamping and completion of this deed;
and
(b) any actual or contemplated enforcement of, or the actual or
contemplated exercise, preservation or consideration of any
rights under, this deed,
including in each case legal costs and expenses (including in-house
lawyers charged at their usual rates) on a full indemnity basis.
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Deed of Indemnity Xxxxx Xxxxx & Xxxxxxx
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8. Further assurances
Each party shall take all steps, execute all documents and do
everything reasonably required by any other party to give effect to any
of the transactions contemplated by this deed.
9. 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. Notices
All notices, requests, demands, consents, approvals, agreements or
other communications to or by a party to this deed:
(a) must be in writing;
(b) must be signed by the sender or if the Trustee is a company, by
an Authorised Signatory; and
(c) will be taken to be duly given or made:
(i) (in the case of delivery in person or by post, facsimile
transmission or cable) when delivered, received or left at
the address of the recipient shown in this deed or to any
other address which it may have notified the sender; or
(ii) (in the case of a telex) on receipt by the sender of the
answerback code of the recipient at the end of
transmission,
but if delivery or receipt is on a day on which business is not
generally carried on in the place to which the communication is sent or
is later than 4 pm (local time), it will be taken to have been duly
given or made at the commencement of business on the next day on which
business is generally carried on in that place.
11. Acknowledgement by indemnifier
The Indemnifier confirms that:
(a) it has not entered into this deed in reliance on, or as a result
of, any statement or conduct of any kind of or on behalf of the
Trustee (including any advice, warranty, representation or
undertaking); and
(b) the Trustee is not obliged to do anything (including disclosing
anything or giving advice), except as expressly set out in the
Custodian Agreement or in writing duly signed by or on behalf of
the Trustee.
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Deed of Indemnity Xxxxx Xxxxx & Xxxxxxx
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12. Governing law and jurisdiction
This deed is governed by the laws of New South Wales. The Indemnifier
submits to the non-exclusive jurisdiction of courts exercising
jurisdiction there.
13. Counterparts
This deed may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
14. Deed binding on signatories
This deed binds each party which signs it even if other parties do not,
or if the execution by other parties is defective, void or voidable.
15. Limitation of trustee's liability
(a) The Trustee enters into this Deed only in its capacity as trustee
of each Trust and in no other capacity (except where the
Transaction Documents provide otherwise). Subject to paragraph
(c) below, a liability arising under or in connection with this
Deed 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 Deed 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 Deed or a Trust.
(b) Subject to paragraph (c) 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.
(c) The provisions of this clause 15 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.
(d) It is acknowledged that the Relevant Parties are responsible
under this Deed or the other Transaction Documents for performing
a variety of obligations relating to the Trust. No act or
omission of the
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Trustee (including any related failure to satisfy its obligations
under this Deed) will be considered fraud, negligence or Default
of the Trustee for the purpose of paragraph (c) 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.
(e) 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 (c) above.
(f) 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.
(g) Nothing in this clause limits the obligations expressly imposed
on the Trustee under the Transaction Documents.
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EXECUTED in New South Wales.
TRUSTEE
SIGNED SEALED and DELIVERED )
by NATIONAL MUTUAL )
TRUSTEES LIMITED )
(ACN 004 029 841) )
by its attorney under the 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 ) Signature
-------------------------------------- -------------------------------------
Witness Print Name
-------------------------------------- -------------------------------------
Signature Signature
-------------------------------------
Print Name
MANAGER
SIGNED SEALED and DELIVERED)
on behalf of CRUSADE )
MANAGEMENT LIMITED )
by its attorney )
in the presence of )
) --------------------------------------
Signature
---------------------------- --------------------------------------
Witness Print Name
----------------------------
Signature
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INDEMNIFIER
SIGNED SEALED and DELIVERED)
on behalf of XX.XXXXXX BANK)
LIMITED )
by its attorney )
in the presence of )
--------------------------------------
Signature
---------------------------- --------------------------------------
Witness Print Name
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Signature
CUSTODIAN
SIGNED SEALED and DELIVERED)
on behalf of XX.XXXXXX )
CUSTODIAL PTY LIMITED )
by its attorney )
in the presence of ) --------------------------------------
Signature
---------------------------- --------------------------------------
Witness Print Name
----------------------------
Signature
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