EXHIBIT 10.45
XXXXXXX XXX
Security Trust Deed
Australian Railroad Group Pty Ltd
Borrower
ANZ Capel Court Limited
Security Trustee
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.
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TABLE OF CONTENTS
1. INTERPRETATION.................................................................... 1
1.1 Definitions........................................................... 1
1.2 Rules for interpreting this document.................................. 2
2. ESTABLISHMENT AND TERM OF SECURITY TRUST.......................................... 3
2.1 Establishment of the Security Trust................................... 3
2.2 Term of the Security Trust............................................ 3
2.3 Name of the Security Trust............................................ 3
2.4 The Security Trustee and the Beneficiaries bound...................... 3
3. GENERAL........................................................................... 3
3.1 Governing law......................................................... 3
3.2 Waiver................................................................ 4
3.3 Operation of this document............................................ 4
3.4 Operation of indemnities.............................................. 4
3.5 Giving effect to this document........................................ 4
3.6 Counterparts.......................................................... 5
3.7 Attorneys............................................................. 5
3.8 No Merger............................................................. 5
3.9 Exclusion of contrary legislation..................................... 5
4. SECURITY TRUSTEE.................................................................. 5
5. PAYMENTS.......................................................................... 5
SCHEDULE 1 - FINANCIERS................................................................ 6
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SECURITY TRUST DEED DATED 12 DECEMBER 2000, AS AMENDED AND NOVATED ON 5 DECEMBER
2003
PARTIES AUSTRALIAN RAILROAD GROUP PTY LTD, ABN 68 080 579 308
("BORROWER")
ANZ CAPEL COURT LIMITED, ABN 30 004 768 807 ("SECURITY
TRUSTEE")
RECITALS
The Security Trustee has agreed at the request of the Borrower to hold the
benefit of the Securities on trust for the Beneficiaries as set out in this
document.
OPERATIVE PROVISIONS
1. INTERPRETATION
1.1 DEFINITIONS
Unless otherwise defined in this document, terms defined in the Common
Provisions have the same meaning in this document and the following
definitions also apply in this document:
"AGENT" means a person (if any) who at any time is a party to any
Finance Document in the capacity as agent of any Financier or any other
Beneficiary.
"BENEFICIARIES" means:
(a) the Agent, the Security Trustee and the Financiers; and
(b) each other person who provides financial accommodation to the
Borrower and is agreed to be a beneficiary by the Borrower and
the Majority Lenders, so long as such person provides
financial accommodation to the Borrower.
"BORROWER" means Australian Railroad Group Pty Ltd, ABN 68 080 579 308.
"COMMON PROVISIONS" means the deed entitled "Common Terms Deed" dated
on or about 1 December 2003 between the Borrower, the companies listed
in Part I of Schedule 1 of that deed as original guarantors, the
financial institutions listed in Part II of Schedule 1 of that deed as
original lenders and ANZ Capel Court Limited as Security Trustee.
"FINANCIERS" means the financial institutions listed in schedule 1 so
long as they provide financial accommodation to the Borrower under the
Finance Documents and each other persons agreed to be a "Financier" by
the Majority Lenders and the Borrower so long as such person provides
financial accommodation to the Borrower under the Finance Documents.
"GUARANTEE" means an obligation or offer to provide funds or otherwise
be responsible in respect of an obligation or indebtedness, or the
financial condition or insolvency, of another person. It includes a
guarantee, indemnity, letter of credit or legally binding letter of
comfort, or an obligation or offer to purchase an obligation or
indebtedness of another person.
"RIGHT" means any right, power, remedy or discretion.
"SECURITY" has the same meaning as "Agreed Security" in the Common
Provisions.
"SECURITY INTEREST" means any mortgage, charge, pledge, lien,
encumbrance, assignment, hypothecation, security interest, title
retention, preferential right, trust arrangement, contractual right of
set-off or any other security agreement or arrangement in favour of any
person.
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"SECURITY PROPERTY" means any property subject to a Security.
"SECURITY TRUST" means the security trust established by clause 2.
"SECURITY TRUST FUND" means:
(a) the amount held by the Security Trustee under clause 2.1;
(b) any other property the Security Trustee acquires in its
capacity as trustee of the Security Trust, including without
limitation:
(i) the benefits of all Rights and obligations given to
or conferred on the Security Trustee under the
Securities and the Finance Documents;
(ii) the benefit of any Security Interest or Guarantee,
representation, warranty, undertaking, covenant, or
other obligation given, assigned or transferred to
the Security Trustee in that capacity, whether under
this document or otherwise; and
(iii) any amount received by the Security Trustee under or
from the enforcement of any such Security Interest,
Guarantee, representation, warranty, undertaking,
covenant or other obligation (other than any amount
received by it on its own account), any investment
into which any such amount is converted and the
proceeds (whether capital or income) of any such
investment.
1.2 RULES FOR INTERPRETING THIS DOCUMENT
Headings are for convenience only, and do not affect interpretation.
The following rules also apply in interpreting this document, except
where the context makes it clear that a rule is not intended to apply.
(a) A reference to:
(i) legislation (including subordinate legislation) is to
that legislation as amended, re-enacted or replaced,
and includes any subordinate legislation issued under
it;
(ii) a document or agreement, or a provision of a document
or agreement, is to that document, agreement or
provision as amended, supplemented, replaced or
novated;
(iii) a party to this document or to any other document or
agreement includes a permitted substitute or a
permitted assignee of that party;
(iv) a person includes any type of entity or body of
persons, whether or not it is incorporated or has a
separate legal identity, and any executor,
administrator or successor in law of the person; and
(v) anything (including a right, obligation or concept)
includes each part of it.
(b) A singular word includes the plural, and vice versa.
(c) A word which suggests one gender includes the other genders.
(d) If a word is defined, another part of speech has a
corresponding meaning.
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(e) If an example is given of anything (including a right,
obligation or concept), such as by saying it includes
something else, the example does not limit the scope of that
thing.
(f) The word "agreement" includes an undertaking or other binding
arrangement or understanding, whether or not in writing.
(g) An Event of Default is continuing or subsisting if it has not
been remedied or waived.
(h) A reference to an "asset" includes any real or personal,
present or future, tangible or intangible property or asset
and any right, interest, revenue or benefit in, under or
derived from the property or asset.
(i) A reference to a body, other than a party to this document
(including, without limitation, an institute, association or
authority), whether statutory or not:
(i) which ceases to exist; or
(ii) whose powers or functions are transferred to another
body,
is a reference to the body which replaces it or which
substantially succeeds to its powers or functions.
2. ESTABLISHMENT AND TERM OF SECURITY TRUST
2.1 ESTABLISHMENT OF THE SECURITY TRUST
The Security Trustee declares that it holds the sum of $10, and will
hold the Security Trust Fund, on trust for the Beneficiaries in
accordance with this document.
2.2 TERM OF THE SECURITY TRUST
The Security Trust commences on the date of this document and ends
(unless determined earlier) on the earlier of:
(a) the day which is 80 years after the date of this document; and
(b) the day on which all amounts payable or owing but not yet
payable by any Obligor to any Beneficiary under or in
connection with the Finance Documents are fully and finally
paid and discharged.
2.3 NAME OF THE SECURITY TRUST
The name of the Security Trust is the "Australian Railroad Group
Security Trust".
2.4 THE SECURITY TRUSTEE AND THE BENEFICIARIES BOUND
The Security Trustee, each Beneficiary and each person claiming under
or through a Beneficiary is bound by the terms of this document.
3. GENERAL
3.1 GOVERNING LAW
(a) This document is governed by the law in force in the
Australian Capital Territory.
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(b) The parties submit to the non-exclusive jurisdiction of the
courts exercising jurisdiction in the Australian Capital
Territory and any courts that may hear appeals from those
courts in respect of any proceedings in connection with this
document and waive any right they might have to claim that
those courts are an inconvenient forum.
3.2 WAIVER
A right may only be waived in writing, signed by the party giving the
waiver, and:
(a) no other conduct of a party (including a failure to exercise,
or delay in exercising, the right) operates as a waiver of the
right or otherwise prevents the exercise of the right;
(b) a waiver of a right on one or more occasions does not operate
as a waiver of that right if it arises again; and
(c) the exercise of a right does not prevent any further exercise
of that right or of any other right.
3.3 OPERATION OF THIS DOCUMENT
(a) Any right that a person may have under this document is in
addition to, and does not replace or limit, any other right
that the person may have.
(b) Any provision of this document which is unenforceable or
partly unenforceable is, where possible, to be severed to the
extent necessary to make this document enforceable, unless
this would materially change the intended effect of this
document.
3.4 OPERATION OF INDEMNITIES
(a) Each indemnity in this document survives the expiry or
termination of this document.
(b) A party may recover a payment under an indemnity in this
document before it makes the payment.
3.5 GIVING EFFECT TO THIS DOCUMENT
(a) Each party must do anything (including execute any document),
and must ensure that its employees and agents do anything
(including execute any document), that any other party may
reasonably require to give full effect to this document.
(b) Without limiting paragraph (a), the Borrower must, whenever
requested by the Security Trustee (acting reasonably) and at
the cost and expense of the Borrower, do or cause to be done
anything requested by the Security Trustee:
(i) for more satisfactorily assuring or securing to the
Security Trustee the Secured Property in a manner not
inconsistent with the provisions of the Finance
Documents; or
(ii) for assisting in the execution or exercise of any
power under this document or any Security,
including the execution of any other document or agreement,
the delivery of documents or evidence of title and execution
and delivery of blank transfers.
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3.6 COUNTERPARTS
This document may be executed in counterparts.
3.7 ATTORNEYS
Each person who executes this document on behalf of a party under a
power of attorney declares that he or she is not aware of any fact or
circumstance that might affect his or her authority to do so under that
power of attorney.
3.8 NO MERGER
Nothing in any other document merges with any other Security Interest,
or any Guarantee, judgment or other right or remedy, that the Security
Trustee or a Beneficiary may hold at any time.
3.9 EXCLUSION OF CONTRARY LEGISLATION
Any legislation that adversely affects an obligation of the Borrower,
or the exercise by the Security Trustee or a Beneficiary of a right or
remedy under or relating to this document is excluded to the full
extent permitted by law.
4. SECURITY TRUSTEE
(a) The Security Trustee has no obligations in its capacity as
trustee other than those expressly imposed on it by this
document or any other Finance Document.
(b) The Security Trustee has the Rights, and is entitled to the
indemnities and protections, given to trustees by applicable
law, except to the extent that the Finance Documents expressly
provide otherwise.
(c) The Security Trustee is not required to provide any
information to a Beneficiary unless any Finance Document
expressly provides otherwise.
5. PAYMENTS
The Security Trustee will, subject to the terms of the Finance
Documents, promptly distribute amounts received by it under the Finance
Documents in the following order:
(a) first, to the extent that the amount is recovered under a
Security, in accordance with that Security;
(b) next, towards payment to the Security Trustee of fees due to
it on its own account and amounts due to it on its own account
under any indemnity provision in any Finance Document;
(c) next, towards payment to the Beneficiaries of any other
"Secured Money", as defined for the purposes of any Security,
to which the Beneficiaries are entitled in accordance with the
Finance Documents rateably in accordance with their respective
entitlements,
and the surplus (if any) belongs to the Borrower.
EXECUTED as a deed.
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SCHEDULE 1 - FINANCIERS
NAME ABN
National Australia Bank Limited 12 004 044 937
Australia and New Zealand Banking Group Limited 11 005 357 522
BNP Paribas 23 000 000 117
Sumitomo Mitsui Finance Australia Limited 16 000 000 000
Mizuho Corporate Bank, Ltd. 83 099 031 106
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