EXHIBIT 10.47
CLAYTON UTZ
Deed of Floating Charge
Australia Southern Railroad Pty Limited
Chargor
ANZ Capel Court Limited
Security Agent
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.
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TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION................................................. 1
1.1 Definitions........................................................ 1
1.2 Interpretation..................................................... 2
1.3 Document or agreement.............................................. 3
1.4 Capacity of Security Agent......................................... 3
2. FEATHERWEIGHT FLOATING CHARGE.................................................. 3
2.1 Floating Charge.................................................... 3
2.2 Conversion......................................................... 5
3. COVENANT TO PAY................................................................ 5
4. ENFORCEMENT.................................................................... 5
5. APPOINTMENT OF RECEIVER........................................................ 6
5.1 Appointment........................................................ 6
5.2 Agent of Chargor................................................... 6
5.3 Receiver's powers.................................................. 6
5.4 Receiver appointed after commencement of winding up................ 8
5.5 Powers exercisable by the Security Agent........................... 8
5.6 Withdrawal......................................................... 8
5.7 Indemnity for Enforcement Costs.................................... 9
6. DISCHARGE...................................................................... 9
7. APPLICATION OF MONEYS RECEIVED................................................. 9
7.1 Order.............................................................. 9
7.2 Only actual receipts credited...................................... 9
7.3 Priorities......................................................... 9
8. OTHER SECURITY OVER CHARGED PROPERTY........................................... 10
9. PROTECTION OF FINANCIERS AND RECEIVER.......................................... 10
10. PROTECTION OF THIRD PARTIES.................................................... 10
10.1 No enquiry......................................................... 10
10.2 Receipt............................................................ 11
11. CONTINUING SECURITY............................................................ 11
12. OTHER SECURITIES............................................................... 11
13. SEVERABILITY OF PROVISIONS..................................................... 11
14. LIMIT ON ENFORCEMENT........................................................... 11
15. ASSIGNMENTS.................................................................... 11
15.1 Assignment by Chargor.............................................. 11
15.2 Assignment by Security Agent....................................... 12
16. GOVERNING LAW AND JURISDICTION................................................. 12
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DEED OF CHARGE MADE ON 7 NOVEMBER 1997 AS ASSIGNED ON OR ABOUT 18 AUGUST 1999
AND ON OR ABOUT 17 DECEMBER 2000 AND AMENDED ON 5 DECEMBER 2003
PARTIES AUSTRALIA SOUTHERN RAILROAD PTY LIMITED ACN 079 444 296
("CHARGOR")
ANZ CAPEL COURT LIMITED ABN 30 004 768 807 as trustee of the
Australian Railroad Group Security Trust ("SECURITY AGENT")
RECITALS
A. The Financiers may from time to time extend financial accommodation to
or for the account of the Borrower or another person on the security of
this Deed.
B. This Deed is given to the Security Agent as trustee of the Australian
Railroad Group Security Trust.
THIS DEED PROVIDES
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
Terms defined in the Common Provisions or the Security Trust Deed have
the same meanings in this Deed (and in the event of any inconsistency
between those two documents the definitions in the Common Provisions
will apply). In addition, the following definitions apply in this
document:
"BELOW TRACK PROPERTY" means any track infrastructure, such as railway
track, ballast, sleepers, stations or platforms owned by the Chargor.
"CHARGE" means the charge created by clause 2.1.
"CHARGED PROPERTY" means all the Chargor's property anywhere (real or
personal) including its Unpaid Capital.
"CHARGE ENFORCEMENT EVENT" means any of the following:
(a) a Default Notice has been issued notifying that a default has
occurred under the Lease which default, if not rectified, will
entitle the Lessor to terminate the Lease and the notified
default has not been rectified during the cure period, if any,
provided to the Chargor under the Lease; or
(b) an administrator has been appointed to the Chargor pursuant to
section 436A, 436B or 436C of the Corporations Act.
"CHARGE ENFORCEMENT PERIOD" means, with reference to any Charge
Enforcement Event, the period commencing on the occurrence of that
Charge Enforcement Event and ending on:
(c) where the Charge Enforcement Event is of the type referred to
in paragraph (a) of the definition of that term in this clause
1.1, the date on which the event referred to in the Default
Notice is rectified or waived in accordance with the
provisions of the Lease;
(d) where the Charge Enforcement Event is of the type referred to
in paragraph (b) of the definition of that term in this clause
1.1, the date on which the administration ceases, other than
under the provisions of section 435C(2)(c) or 435C(3)(g) of
the Corporations Act, provided that as at that date no Default
Notice has been issued in respect of that Charge Enforcement
Event under the Lease or, if issued, has been subsequently
retracted or the relevant event has been rectified or waived
in
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accordance with the provisions of the Lease.
"COMMON PROVISIONS" means the deed entitled "Common Terms Deed" dated
on or about 1 December 2003 between Australian Railroad Group Pty
Limited, 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 Agent.
"CORPORATIONS ACT" means the Corporations Act 2001 (Commonwealth).
"DEFAULT NOTICE" means a notice issued to the Security Agent on the
terms contemplated by clause 3.3(b) of the Tripartite Deed.
"LEASE" means the deed entitled "Deed of Agreement to Lease and Charge"
dated 7 November 1997 between the Lessor, SA Rail Pty Limited and the
Chargor.
"LESSOR" means the Minister for Transport and Urban Planning, a body
corporate under the Administrative Arrangements Act 1994 (South
Australia).
"POWER" means a power, right, authority, discretion or remedy which is
conferred on the Security Agent or a Receiver by this Deed or by law in
relation to this Deed.
"RECEIVER" means a receiver or receiver and manager appointed under
this Deed.
"RESTRICTED PROPERTY" means:
(a) any rights or interests of the Chargor under or in connection
with the Lease; and
(b) the Below Track Property.
"SECURED MONEY" means any money which the Borrower or a Chargor is
obliged (whether that obligation is present or future, actual or
contingent) to pay to the Security Agent or the Financiers or another
Beneficiary under this Deed or another Finance Document.
"SECURITY TRUST DEED" means the deed entitled "Security Trust Deed"
dated 12 December 2000 and as amended and novated on or about 5
December 2003 between the Borrower and the Security Agent.
"TRIPARTITE DEED" means the deed entitled "Tripartite Deed" dated on or
about 13 December 2000 between the Lessor, the Chargor and the Security
Agent.
"UNPAID CAPITAL" means any uncalled or unpaid share capital or premiums
of the Chargor.
1.2 INTERPRETATION
Headings are for convenience only and do not affect interpretation. The
following rules apply unless the context requires otherwise:
(a) the singular includes the plural and the converse;
(b) a gender includes all genders;
(c) where a word or phrase is defined, its other grammatical forms
have a corresponding meaning;
(d) a reference to a person, corporation, trust, partnership,
unincorporated body or other entity includes any of them;
(e) a reference to a clause, annexure or schedule is a reference
to a clause of, or annexure or schedule to, this Deed;
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(f) a reference to a party to this Deed or another agreement or
document includes the party's successors and permitted
substitutes or assigns;
(g) a reference to legislation or to a provision of legislation
includes a modification or re-enactment of it, a legislative
provision substituted for it and a regulation or statutory
instrument issued under it;
(h) a reference to "writing" includes a facsimile transmission and
any means of reproducing words in a tangible and permanently
visible form;
(i) a reference to "conduct" includes an omission, statement or
undertaking, whether or not in writing;
(j) mentioning anything after "include", "includes" or "including"
does not limit what else might be included;
(k) a reference to an "asset" includes any real or personal,
present or future, tangible or intangible property or asset
(including intellectual property) and any right, interest,
revenue or benefit in, under or derived from the property or
asset; and
(l) a reference to a consent, approval or agreement not being
unreasonably withheld includes it not being unreasonably
delayed.
1.3 DOCUMENT OR AGREEMENT
A reference to:
(a) an "agreement" includes a Security, Guarantee, undertaking,
deed, agreement or legally enforceable arrangement whether or
not in writing;
(b) a "document" includes an agreement (as so defined) in writing
or a certificate, notice, instrument or document; and
(c) a specific agreement or document includes it as amended,
novated, supplemented or replaced from time to time.
1.4 CAPACITY OF SECURITY AGENT
(a) The Security Agent enters into this Deed in its capacity as
trustee under the Security Trust Deed and, notwithstanding
anything in this Deed, the Chargor acknowledges that any
rights which it may have against the Security Agent under or
in respect of this Deed shall not be against the Security
Agent personally but against the Security Agent solely in its
capacity as trustee under the Security Trust Deed.
Accordingly, the Security Agent may not be called on or be
liable to satisfy any such rights out of any of its personal
assets, and recourse (if any) against the Security Agent shall
be limited to the assets held by it in its capacity as trustee
under the Security Trust Deed.
(b) However, despite anything in clause 1.4(a), the Security Agent
is personally liable to the extent that a liability under this
document arises out of the Security Agent's own fraud, wilful
misconduct, gross negligence or breach of trust which
disentitles it from an indemnity out of the assets of the
Australian Railroad Group Security Trust in relation to the
relevant liability.
2. FEATHERWEIGHT FLOATING CHARGE
2.1 FLOATING CHARGE
(a) The Chargor charges by way of floating charge to the Security
Agent the Charged
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Property as continuing security for the payment of the Secured
Money.
(b) The Security Agent and the Chargor agree:
(i) subject to clauses 5.3 and 5.4 of the Common
Provisions and clause 2.1(b)(ii) of this Deed, the
Chargor may, without the consent of the Security
Agent or of any other person:
A. create or permit to subsist any Security
which affects the Charged Property or any
part of it or enter into any sale, transfer
or other disposal of the type referred to in
clause 5.3(b) of the Common Provisions of or
in respect of the Charged Property or any
part of it; and/or
B. enter into a single transaction or a series
of transactions (whether related or not) and
whether voluntary or involuntary to sell,
lease, transfer or otherwise dispose of the
Charged Property or any part of it;
(ii) notwithstanding any other provision of any Finance
Document, the Chargor may not, except with the
consent of all Lenders or in accordance with clause
2.1(b)(iii):
A. create or permit to subsist any Security
which affects the Restricted Property or any
part of it or enter into any sale, transfer
or other disposal of the type referred to in
clause 5.3(b) of the Common Provisions of or
in respect of the Restricted Property or any
part of it; or
B. enter into a single transaction or a series
of transactions (whether related or not) and
whether voluntary or involuntary to sell,
lease, transfer or otherwise dispose of the
Restricted Property or any part of it;
(iii) the Chargor may, without the consent of the Security
Agent or any Beneficiary, enter into any transaction
of the nature referred to in clause 2.1(b)(ii) in
respect of or in relation to the Below Track
Property, or any part of it, which constitutes
non-essential track infrastructure (each a
"TRANSACTION"), provided the Transaction would
otherwise be permitted in accordance with clause 5.3
or 5.4 of the Common Provisions, in connection with
any proposal by the Chargor for use of any part of
the Below Track Property which is non-essential track
infrastructure for purposes other than the carriage
of freight or associated uses (for example, but
without limiting the generality of this clause, use
for retail purposes), where that use does not impair
the ability of the Chargor to carry out its business,
as carried out as at the date of the Common
Provisions;
(iv) subject to this clause 2.1(b) and clause 5.3 of the
Common Provisions, if the Chargor creates or allows
to exist a Security over the Charged Property, then
any such Security ranks ahead of the Charge. In such
circumstances and as soon as practicable after a
request by the Chargor, the Security Agent agrees to
enter into a priority agreement with respect to that
Security in order to give effect to this clause, in a
form reasonably acceptable to the Chargor;
(v) if a Charge Enforcement Event occurs, unless the
Security Agent agrees otherwise, the Charge
immediately and without the Security Agent
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having to give notice to the Chargor takes effect as
a fixed charge over the Charged Property. Despite any
applicable rule of law to the contrary the Charge
does not otherwise take effect as a fixed charge in
any circumstances; and
(vi) notwithstanding any other provision of this Deed or
any other Finance Document, at the expiration of the
Charge Enforcement Period for any Charge Enforcement
Event:
A. the fixed charge over the Charged Property
immediately takes effect as a floating
charge over that Charged Property;
B. the Security Agent will direct any Receiver
which it has appointed to the Chargor or the
assets of the Chargor to vacate office; and
C. until another Charge Enforcement Event
occurs:
1) the Chargor may deal with the
Charged Property as if it had
always been charged by way of a
floating charge under the Charge;
and
2) a person dealing with the Chargor
in relation to the Charged Property
may rely on a certificate from the
Security Agent as conclusive
evidence that, as from the expiry
of the Charge Enforcement Period,
the Charged Property is charged by
way of floating charge. The
Security Agent agrees that it will,
at the request of the Chargor,
issue certificates on the terms
contemplated by this clause
2.1(b)(vi)C.2) provided that the
Chargor provides to the Security
Agent evidence satisfactory to the
Security Agent, acting reasonably,
that the relevant Charge
Enforcement Period has expired.
2.2 CONVERSION
The Security Agent may, at any time by notice in writing to the
Chargor, reconvert its security under the Charge from a fixed charge to
a floating charge in respect of any asset or class of asset specified
in that notice. Any such conversion will be effective from the moment
of receipt by the Chargor of such notice.
3. COVENANT TO PAY
The Chargor shall duly and punctually pay the Secured Money when it
become payable in accordance with the terms of any Finance Document or,
in the absence of any agreement, on demand by the Security Agent.
4. ENFORCEMENT
If a Charge Enforcement Event occurs then, during the Charge
Enforcement Period for that Charge Enforcement Event, this Deed will
become immediately enforceable against the Chargor.
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5. APPOINTMENT OF RECEIVER
5.1 APPOINTMENT
To the extent permitted by law, if this Deed has become enforceable
against the Chargor under clause 4 (whether or not the Security Agent
has entered into possession of all or any of the Charged Property), the
Security Agent may during the relevant Charge Enforcement Period:
(a) appoint any person or any two or more persons jointly or
severally or both to be a receiver or receiver and manager of
all or any of the Charged Property for the duration of the
relevant Charge Enforcement Period;
(b) remove any Receiver;
(c) appoint another Receiver in addition to or in place of a
Receiver; and
(d) fix or vary the remuneration of a Receiver.
5.2 AGENT OF CHARGOR
Subject to clause 5.4, every Receiver is the agent of the Chargor and
the Chargor alone is responsible for his or her acts and defaults.
5.3 RECEIVER'S POWERS
The Receiver will have full power to do all or any of the following, in
each case (except in the case of clause 5.3(h)), only to the extent
necessary for the purposes of rectifying the relevant Charge
Enforcement Event or to ensure that the Lease is not terminated:
(a) (TO TAKE POSSESSION AND MANAGE) to take possession of, get in
and manage the Charged Property;
(b) (TO LEASE) to lease any of the Charged Property for any term
(whether or not the Receiver has taken possession);
(c) (TO CARRY ON BUSINESS) to carry on or concur in carrying on
any business;
(d) (TO ACQUIRE ANY ASSET) to acquire in any manner any asset
(including to take it on lease). After that acquisition it
will be included in the Charged Property;
(e) (TO MAINTAIN AND IMPROVE THE CHARGED PROPERTY) to do anything
to maintain, protect or improve any of the Charged Property or
to obtain income or returns from any of the Charged Property
(including by development, sub-division, construction,
alteration or repair of any property or by pulling down,
dismantling or scrapping any property);
(f) (BORROW FROM SECURITY AGENT): borrow from the Security Agent
any money that may be required for any of the purposes
mentioned in clause 5.3(c) or 5.3(e) provided that any money
borrowed may not be secured by mortgage, charge or any other
Security over the Charged Property (or any part of it),
without the Security Agent being bound to enquire whether the
borrowing is necessary or proper or responsible for the
misapplication or non-application of any money borrowed;
(g) (TO LEND) to lend money or provide financial accommodation;
(h) (TO SELL):
(i) to sell any of the Charged Property (whether or not
the Receiver has taken possession);
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(ii) without limitation any sale may be made:
A. by public auction, private treaty or tender;
B. for cash or on credit;
C. in one lot or in parcels;
D. either with or without special conditions or
stipulations as to title or time or mode of
payment of purchase money or otherwise;
E. with power to allow the whole or any part of
the purchase money to be deferred (whether
with or without any security); and
F. whether or not in conjunction with the sale
of any property by any person;
(i) (TO SEVER FIXTURES) to sever fixtures;
(j) (TO EMPLOY) to employ or discharge any person as employee,
contractor, agent, professional adviser, consultant or
auctioneer for any purpose;
(k) (TO COMPROMISE) to make or accept any arrangement or
compromise;
(l) (TO GIVE RECEIPTS) to give receipts for money and other
assets;
(m) (TO PERFORM AND ENFORCE AGREEMENTS):
(i) to perform or enforce;
(ii) to exercise or refrain from exercising the Chargor's
rights and powers under; or
(iii) to obtain the benefit in other ways of,
any documents or agreements or rights which form part of the
Charged Property and any documents or agreements entered into
in exercise of any Power;
(n) (TO VARY AND TERMINATE AGREEMENTS) to vary, rescind or
terminate any document or agreement (including surrender or
accept the surrender of leases);
(o) (TO TAKE INSOLVENCY PROCEEDINGS) to make debtors bankrupt,
wind up companies and do any thing in relation to any actual
or contemplated liquidation (including attend and vote at
meetings of creditors and appoint proxies);
(p) (TO TAKE PROCEEDINGS) to commence, defend, conduct, settle,
discontinue or compromise proceedings in the name of the
Chargor or otherwise;
(q) (TO EXECUTE DOCUMENTS) to enter into and execute documents or
agreements on behalf of the Receiver or the Chargor. This
includes using the Chargor's seal and signing, accepting and
endorsing cheques, promissory notes and bills of exchange;
(r) (TO OPERATE BANK ACCOUNTS) to operate any bank account
comprising part of the Charged Property and open and operate
any further bank account;
(s) (TO SURRENDER CHARGED PROPERTY) to surrender, release or
transfer any of the Charged Property;
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(t) (TO EXCHANGE CHARGED PROPERTY) to exchange with any person any
of the Charged Property for other property;
(u) (TO PROMOTE COMPANIES) to promote the formation of companies
with a view to purchasing any of the Charged Property or
assuming the obligations of the Chargor or otherwise;
(v) (TO DELEGATE) to delegate to any person approved by the
Security Agent any Powers (including delegation);
(w) (TO HAVE ACCESS) to have access to and make use of the
premises, plant, equipment and records and accounting and
other services of the Chargor and the services of its staff
insofar as they relate to the Charged Property;
(x) (TO VOTE) to exercise any voting or other rights or powers in
respect of any of the Charged Property;
(y) (OTHER OUTGOINGS) to pay any outgoings or indebtedness of the
Chargor or any other person;
(z) (SECURITY) to redeem any Security or acquire it and any debt
secured by it;
(aa) (MAKE CALLS) to make calls on the members of the Chargor in
respect of any Unpaid Capital;
(bb) (TO INSURE) to take out insurance; and
(cc) (INSURANCE CLAIMS) to make, enforce, compromise and settle all
claims in respect of insurance.
All of the above paragraphs are to be construed independently. None
limits the generality of any other.
5.4 RECEIVER APPOINTED AFTER COMMENCEMENT OF WINDING UP
The power to appoint a Receiver may be exercised despite the fact that:
(a) an order may have been made or a resolution may have been
passed to wind up the Chargor; and
(b) a Receiver appointed in those circumstances may not, or may
not in some respects, act as the agent of the Chargor.
5.5 POWERS EXERCISABLE BY THE SECURITY AGENT
Whether or not a Receiver has been appointed, to the extent permitted
by law the Security Agent may exercise any Power of a Receiver at any
time during the relevant Charge Enforcement Period without giving
notice. It may exercise its Powers without taking possession or being
liable as chargee in possession. Without limitation, it may exercise
its Powers directly or through one or more agents. In the latter event,
anything done or incurred by such an agent will be taken to be done or
incurred by the Security Agent.
5.6 WITHDRAWAL
The Security Agent may at any time give up possession of the Charged
Property and may at any time withdraw any receivership.
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5.7 INDEMNITY FOR ENFORCEMENT COSTS
The Chargor on demand will indemnify the Security Agent for all
expenses, including legal fees, costs and disbursements incurred by the
Security Agent or a Receiver in or incidental to the exercise or
attempted exercise of any power under this Deed.
6. DISCHARGE
As soon as reasonably practicable after the Secured Moneys have been
fully and finally repaid the Security Agent must execute a release and
discharge of this Deed and deliver it to the Chargor. The Security
Agent is not obliged to discharge this Deed except in the circumstances
specified in this clause 6.
7. APPLICATION OF MONEYS RECEIVED
7.1 ORDER
(a) Subject in all circumstances to clause 14, money that the
Security Agent or a Receiver receives under or because of this
Deed is to be applied in the following order:
(i) (EXPENSES) first in payment of all expenses that the
Security Agent or a Receiver incurs in or incidental
to the exercise or attempted exercise of a power
under this Deed;
(ii) (OUTGOINGS) then in payment of any other outgoings
that the Receiver or the Security Agent thinks it
appropriate to pay;
(iii) (RECEIVER) then in payment to the Receiver of any
remuneration (whether by way of commission or
otherwise);
(iv) (INDEMNITIES) then in payment to the Security Agent
or a Receiver of any amount necessary to give effect
to any indemnity contained in this Deed; and
(v) (SECURED MONEY) then in payment to the Security Agent
of the Secured Money recoverable under this Charge
and the Security Agent agrees that it will distribute
any such amount to the Beneficiaries rateably in
proportion to the Secured Money owed to each of them.
(b) Any surplus will belong to the Chargor or other persons
entitled to it and:
(i) the surplus shall accrue interest at the Security
Agent's standard deposit rate for amounts equal to
the amount of that surplus; and
(ii) the Security Agent must pay the surplus together with
the interest accrued thereon to the Chargor or other
persons entitled to it and is then under no further
liability in respect of it.
7.2 ONLY ACTUAL RECEIPTS CREDITED
In applying any money towards the Secured Money, the Chargor's account
will be credited only with the amount of the money that the Security
Agent actually receives for that purpose. The credit will date from the
time of receipt.
7.3 PRIORITIES
For the purposes of fixing priorities between the Security created by
this Deed and any
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subsequent Security registered under the Corporations Act and for no
other purposes, the Security created by this Deed secures a prospective
liability up to a maximum amount of $10.00.
8. OTHER SECURITY OVER CHARGED PROPERTY
Any Financier and any Receiver may rely on the certificate of a holder
of another Security affecting or purporting to affect the Charged
Property as to the amount and property secured by the Security.
9. PROTECTION OF FINANCIERS AND RECEIVER
Subject to any law which applies despite an agreement to the contrary,
neither the Security Agent nor any Receiver will be liable:
(a) in respect of any conduct, delay, negligence or breach of duty
in the exercise or non-exercise of a Power; nor
(b) for any loss (including consequential loss) which results,
except where it arises from fraud or wilful misconduct on the part of
the Security Agent or Receiver.
10. PROTECTION OF THIRD PARTIES
10.1 NO ENQUIRY
No party (other than the Security Agent, a Financier or Receiver) to
any Dealing (as defined below) and no person asked to register a
Dealing:
(a) is bound to enquire:
(i) whether a Charge Enforcement Event has occurred or
whether this Deed has become enforceable;
(ii) whether a person who is, or purports or is purported
to be a Receiver is duly appointed;
(iii) the amount of the Secured Money and whether the
Secured Money is due and payable; or
(iv) in any other way as to the propriety or regularity of
the Dealing; or
(b) is affected by express notice that the Dealing is unnecessary
or improper.
For the protection of any party to a Dealing or a person registering a
Dealing, the Dealing will be taken to be authorised by this Deed and
will be valid accordingly, even if there is any irregularity or
impropriety in the Dealing.
In this clause a "Dealing" is:
(a) any payment or any delivery or handing over of an asset to; or
(b) any acquisition, incurring of Financial Indebtedness, receipt,
sale, lease, disposal or other dealing, by,
the Security Agent or any Receiver.
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10.2 RECEIPT
The receipt of the Security Agent or any Receiver for any moneys or
assets payable to, or receivable or received by, it exonerates the
person paying those moneys or handing over that asset from being
concerned as to their application, or from being liable or accountable
for their loss or misapplication.
11. CONTINUING SECURITY
This Deed is a continuing security despite any settlement of account,
intervening payment or anything else until a final discharge of this
Deed has been given to the Chargor.
12. OTHER SECURITIES
No Power and nothing in this Deed merges in, or in any other way
prejudicially affects or is prejudicially affected by:
(a) any other Security; or
(b) any judgment, right or remedy against any person,
which the Security Agent or any person claiming through the Security
Agent may have at any time.
13. SEVERABILITY OF PROVISIONS
(a) Any provision of this Deed which is prohibited of
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.
(b) Without limiting the generality of paragraph (a):
(i) the definition of Secured Money does not include any
liability so long as and to the extent that the
inclusion of that liability would avoid, invalidate
or render ineffective clause 2 or the Security
constituted by this Deed; and
(ii) the definition of the Charged Property does not
include any asset so long as and to the extent that
the inclusion of that asset would invalidate, avoid
or render ineffective clause 2 or the Security
constituted by this Deed.
14. LIMIT ON ENFORCEMENT
Despite any other provision of this Deed or any other Finance Document,
the amount recoverable by the Security Agent under this Deed is limited
to an aggregate amount of $10.00.
15. ASSIGNMENTS
15.1 ASSIGNMENT BY CHARGOR
The Chargor may not assign or transfer any of its rights or obligations
under this Deed without the prior written consent of the Security
Agent.
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15.2 ASSIGNMENT BY SECURITY AGENT
Subject to the other Finance Documents, the Security Agent may assign
its rights under this Deed in accordance with the Common Provisions and
in no other manner whatsoever.
16. GOVERNING LAW AND JURISDICTION
(a) This Deed is governed by New South Wales law.
(b) The courts having jurisdiction in New South Wales have
non-exclusive jurisdiction to settle any dispute arising out
of or in connection with this Deed (including a dispute
regarding the existence, validity or termination of this
Deed).
(c) Each party irrevocably waives any objection it may now or in
the future have to the venue of any proceedings, and any claim
it may now or in the future have that any proceedings have
been brought in any inconvenient forum, where that venue falls
within clause 16(b).
EXECUTED as a deed.
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