Common use of Limitation on discretion to refuse Transfer Clause in Contracts

Limitation on discretion to refuse Transfer. If the End User gives a Notice of Intention to Transfer under clause 14.1, then (a) the End User will be taken to have relinquished the Nominated Access Rights under this Agreement; and (b) the Transferred Access Rights and the Requested Ancillary Access Rights (if any) will be granted to the Transferee for the Transfer Period under the Transferee Access Agreement, provided that: (c) the Transferred Access Rights and the Requested Ancillary Access Rights (if any) are for Cyclic Traffic; (d) Aurizon Network and the End User have entered into an agreement, in a form reasonably acceptable to Aurizon Network, to vary the terms of this Agreement to address the relinquishment of the Nominated Access Rights (including, for the avoidance of doubt, variations to the Access Charge Rates); (e) the Transferred Access Rights and the Requested Ancillary Access Rights (if any) are granted under a new or varied access agreement between Aurizon Network and the Transferee (Transferee Access Agreement) that: (i) has, to Aurizon Network’s satisfaction, been negotiated and agreed in accordance with the requirements of the Access Undertaking; and (ii) except for a condition in relation to the grant of the Transferred Access Rights and the Requested Ancillary Access Rights (if any) taking effect under this clause 14, is unconditional and binding upon the Transferee; (f) Aurizon Network’s obligation to provide, and the Transferee’s right to utilise, the Transferred Access Rights and the Requested Ancillary Access Rights (if any) under the Transferee Access Agreement does not commence until the later of: (i) the date upon which the End User pays the Transfer Fee to Aurizon Network; and (ii) the Transfer Date; (g) the Transferee has demonstrated to the reasonable satisfaction of Aurizon Network that the Transferee: (i) will hold, or will have the benefit of, Supply Chain Rights (as if the Transferee was the End User for the purposes of that definition) for the commencement of operation of Network Train Services utilising the Transferred Access Rights and the Requested Ancillary Access Rights (if any); and (ii) is reasonably likely to continue to hold, or have the benefit of, those Supply Chain Rights for the whole of the Transfer Period. In determining whether the Transferee will continue to hold, or have the benefit of, the relevant Supply Chain Rights for the purposes of this clause 14.2(g)(ii), the Parties are to assume, if the Transferee or the holder of those Supply Chain Rights has an option granted in its favour to renew such Supply Chain Rights or extend the term of such Supply Chain Rights, that such option to renew or extend is exercised; (h) the End User has complied with this clause 14; (i) the End User and the Transferee have complied with any requirements under the Access Undertaking in relation to the Transfer and the grant of the Requested Ancillary Access Rights (if any); (j) giving effect to the Transfer and the grant of the Requested Ancillary Access Rights (if any) will not cause Aurizon Network to breach the Access Undertaking; and (k) Aurizon Network has sufficient capability in its Infrastructure to grant the Transferred Access Rights and Requested Ancillary Access Rights (if any) to the Transferee without adversely affecting Aurizon Network’s ability to comply with its obligations to Advanced Access Seekers and Access Holders.

Limitation on discretion to refuse Transfer. If the End User gives a Notice of Intention to Transfer under clause 14.111.1, then (a) the End User will be taken to have relinquished the Nominated Access Rights under this Agreement; and (b) the Transferred Access Rights and the Requested Ancillary Access Rights (if any) will be granted to the Transferee for the Transfer Period under the Transferee Access Agreement, provided that: (c) the Transferred Access Rights and the Requested Ancillary Access Rights (if any) are for Cyclic Traffic; (d) Aurizon Network and the End User have entered into an agreement, in a form reasonably acceptable to Aurizon Network, to vary the terms of this Agreement to address the relinquishment of the Nominated Access Rights (including, for the avoidance of doubt, variations to the Access Charge Rates); (e) the Transferred Access Rights and the Requested Ancillary Access Rights (if any) are granted under a new or varied access agreement between Aurizon Network and the Transferee (Transferee Access Agreement) that: (i) has, to Aurizon Network’s satisfaction, been negotiated and agreed in accordance with the requirements of the Access Undertaking; and (ii) except for a condition in relation to the grant of the Transferred Access Rights and the Requested Ancillary Access Rights (if any) taking effect under this clause 1411, is unconditional and binding upon the Transferee; (f) Aurizon Network’s obligation to provide, and the Transferee’s right to utilise, the Transferred Access Rights and the Requested Ancillary Access Rights (if any) under the Transferee Access Agreement does not commence until the later of: (i) the date upon which the End User pays the Transfer Fee to Aurizon Network; and (ii) the Transfer Date; (g) the Transferee has demonstrated to the reasonable satisfaction of Aurizon Network that the Transferee: (i) will hold, or will have the benefit of, Supply Chain Rights (as if the Transferee was the End User Operator for the purposes of that definition) for the commencement of operation of Network Train Services utilising the Transferred Access Rights and the Requested Ancillary Access Rights (if any); and (ii) is reasonably likely to will continue to hold, or have the benefit of, those Supply Chain Rights for the whole of the Transfer Period. In determining whether Period (or the Transferee will continue to hold, or have whole of the benefit of, the relevant Supply Chain Rights for the purposes of this clause 14.2(g)(ii), the Parties are to assume, Transfer Period if the Transferee or the holder of those Supply Chain Rights has exercises an option granted in its favour to renew such Supply Chain Rights or extend the term of such Supply Chain Rights, that such option to renew or extend is exercised); (h) the End User has complied with this clause 1411; (i) the End User and the Transferee have complied with any requirements under the Access Undertaking in relation to the Transfer and the grant of the Requested Ancillary Access Rights (if any); (j) giving effect to the Transfer and the grant of the Requested Ancillary Access Rights (if any) will not cause Aurizon Network to breach the Access Undertaking; and (k) Aurizon Network has sufficient capability in its Infrastructure to grant the Transferred Access Rights and Requested Ancillary Access Rights (if any) to the Transferee without adversely affecting Aurizon Network’s ability to comply with its obligations to Advanced Access Seekers and Access Holders.

Limitation on discretion to refuse Transfer. If the End User gives a Notice of Intention to Transfer under clause 14.111.1,12.1, then (a) the End User will be taken to have relinquished the Nominated Access Rights under this Agreement; and (b) the Transferred Access Rights and the Requested Ancillary Access Rights (if any) will be granted to the Transferee for the Transfer Period under the Transferee Access Agreement, provided that: (c) the Transferred Access Rights and the Requested Ancillary Access Rights (if any) are for Cyclic Traffic; (d) Aurizon Network and the End User have entered into an agreement, in a form reasonably acceptable to Aurizon Network, to vary the terms of this Agreement to address the relinquishment of the Nominated Access Rights (including, for the avoidance of doubt, variations to the Access Charge Rates); (e) the Transferred Access Rights and the Requested Ancillary Access Rights (if any) are granted under a new or varied access agreement between Aurizon Network and the Transferee (Transferee Access Agreement) that: (i) has, to Aurizon Network’s satisfaction, been negotiated and agreed in accordance with the requirements of the Access Undertaking; and (ii) except for a condition in relation to the grant of the Transferred Access Rights and the Requested Ancillary Access Rights (if any) taking effect under this clause 1411,12, is unconditional and binding upon the Transferee; (f) Aurizon Network’s obligation to provide, and the Transferee’s right to utilise, the Transferred Access Rights and the Requested Ancillary Access Rights (if any) under the Transferee Access Agreement does not commence until the later of: (i) the date upon which the End User pays the Transfer Fee to Aurizon Network; and (ii) the Transfer Date; (g) the Transferee has demonstrated to the reasonable satisfaction of Aurizon Network that the Transferee: (i) will hold, or will have the benefit of, Supply Chain Rights (as if the Transferee was the End User and an Operator was an operator for the Transferee for the purposes of that definition) for the commencement of operation of Network Train Services utilising the Transferred Access Rights and the Requested Ancillary Access Rights (if any); and (ii) is xxxxxx reasonably likely to continue to hold, or have the benefit of, those Supply Chain Rights for the whole of the Transfer Period (or the whole of the Transfer Period. In determining whether the Transferee will continue to hold, or have the benefit of, the relevant Supply Chain Rights for the purposes of this clause 14.2(g)(ii12.2(g)(ii), the Parties are to assume, if the Transferee or the holder of those Supply Chain Rights has exerciseshas an option granted in its favour to renew such Supply Chain Rights or extend the term of such Supply Chain Rights), that such option to renew or extend is exercised; (h) the End User has complied with this clause 141112; (i) the End User and the Transferee have complied with any requirements under the Access Undertaking in relation to the Transfer and the grant of the Requested Ancillary Access Rights (if any); (j) giving effect to the Transfer and the grant of the Requested Ancillary Access Rights (if any) will not cause Aurizon Network to breach the Access Undertaking; and (k) Aurizon Network has sufficient capability in its Infrastructure to grant the Transferred Access Rights and Requested Ancillary Access Rights (if any) to the Transferee without adversely affecting Aurizon Network’s ability to comply with its obligations to Advanced Access Seekers and Access Holders.

Limitation on discretion to refuse Transfer. If the End User Operator gives a Notice of Intention to Transfer under clause 14.113.1, then (a) the End User Operator will be taken to have relinquished the Nominated Access Rights under this Agreement; and (b) the Transferred Access Rights and the Requested Ancillary Access Rights (if any) will be granted to the Transferee for the Transfer Period under the Transferee Access Agreement, provided that: (c) the Transferred Access Rights and the Requested Ancillary Access Rights (if any) are for Cyclic Traffic; (d) Aurizon Network and the End User Operator have entered into an agreement, in a form reasonably acceptable to Aurizon Network, to vary the terms of this Agreement to address the relinquishment of the Nominated Access Rights (including, for the avoidance of doubt, variations to the Access Charge Rates); (e) the Transferred Access Rights and the Requested Ancillary Access Rights (if any) are granted under a new or varied access agreement between Aurizon Network and the Transferee (Transferee Access Agreement) that: (i) has, to Aurizon Network’s satisfaction, been negotiated and agreed in accordance with the requirements of the Access Undertaking; and (ii) except for a condition in relation to the grant of the Transferred Access Rights and the Requested Ancillary Access Rights (if any) taking effect under this clause 1413, is unconditional and binding upon the Transferee; (f) Aurizon Network’s obligation to provide, and the Transferee’s right to utilise, the Transferred Access Rights and the Requested Ancillary Access Rights (if any) under the Transferee Access Agreement does not commence until the later of: (i) the date upon which the End User Operator pays the Transfer Fee to Aurizon Network; and (ii) the Transfer Date; (g) the Transferee has demonstrated to the reasonable satisfaction of Aurizon Network that the Transferee: (i) will hold, or will have the benefit of, Supply Chain Rights (as if the Transferee was the End User Operator for the purposes of that definition) for the commencement of operation of Network Train Services utilising the Transferred Access Rights and the Requested Ancillary Access Rights (if any); and (ii) is reasonably likely to will continue to hold, or have the benefit of, those Supply Chain Rights for the whole of the Transfer Period. In determining whether Period (or the Transferee will continue to hold, or have whole of the benefit of, the relevant Supply Chain Rights for the purposes of this clause 14.2(g)(ii), the Parties are to assume, Transfer Period if the Transferee or the holder of those Supply Chain Rights has exercises an option granted in its favour to renew such Supply Chain Rights or extend the term of such Supply Chain Rights, that such option to renew or extend is exercised); (h) the End User Operator has complied with this clause 1413; (i) the End User Operator and the Transferee have complied with any requirements under the Access Undertaking in relation to the Transfer and the grant of the Requested Ancillary Access Rights (if any); (j) giving effect to the Transfer and the grant of the Requested Ancillary Access Rights (if any) will not cause Aurizon Network to breach the Access Undertaking; and (k) Aurizon Network has sufficient capability in its Infrastructure to grant the Transferred Access Rights and Requested Ancillary Access Rights (if any) to the Transferee without adversely affecting Aurizon Network’s ability to comply with its obligations to Advanced Access Seekers and Access Holders.

Limitation on discretion to refuse Transfer. If the End User gives a Notice of Intention to Transfer under clause 14.112.1, then (a) the End User will be taken to have relinquished the Nominated Access Rights under this Agreement; and (b) the Transferred Access Rights and the Requested Ancillary Access Rights (if any) will be granted to the Transferee for the Transfer Period under the Transferee Access Agreement, provided that: (c) the Transferred Access Rights and the Requested Ancillary Access Rights (if any) are for Cyclic Traffic; (d) Aurizon Network and the End User have entered into an agreement, in a form reasonably acceptable to Aurizon Network, to vary the terms of this Agreement to address the relinquishment of the Nominated Access Rights (including, for the avoidance of doubt, variations to the Access Charge Rates); (e) the Transferred Access Rights and the Requested Ancillary Access Rights (if any) are granted under a new or varied access agreement between Aurizon Network and the Transferee (Transferee Access Agreement) that: (i) has, to Aurizon Network’s satisfaction, been negotiated and agreed in accordance with the requirements of the Access Undertaking; and (ii) except for a condition in relation to the grant of the Transferred Access Rights and the Requested Ancillary Access Rights (if any) taking effect under this clause 1412, is unconditional and binding upon the Transferee; (f) Aurizon Network’s obligation to provide, and the Transferee’s right to utilise, the Transferred Access Rights and the Requested Ancillary Access Rights (if any) under the Transferee Access Agreement does not commence until the later of: (i) the date upon which the End User pays the Transfer Fee to Aurizon Network; and (ii) the Transfer Date; (g) the Transferee has demonstrated to the reasonable satisfaction of Aurizon Network that the Transferee: (i) will hold, or will have the benefit of, Supply Chain Rights (as if the Transferee was the End User and an Operator was an operator for the Transferee for the purposes of that definition) for the commencement of operation of Network Train Services utilising the Transferred Access Rights and the Requested Ancillary Access Rights (if any); and (ii) is reasonably likely to continue to hold, or have the benefit of, those Supply Chain Rights for the whole of the Transfer Period. In determining whether the Transferee will continue to hold, or have the benefit of, the relevant Supply Chain Rights for the purposes of this clause 14.2(g)(ii12.2(g)(ii), the Parties are to assume, if the Transferee or the holder of those Supply Chain Rights has an option granted in its favour to renew such Supply Chain Rights or extend the term of such Supply Chain Rights, that such option to renew or extend is exercised; (h) the End User has complied with this clause 1412; (i) the End User and the Transferee have complied with any requirements under the Access Undertaking in relation to the Transfer and the grant of the Requested Ancillary Access Rights (if any); (j) giving effect to the Transfer and the grant of the Requested Ancillary Access Rights (if any) will not cause Aurizon Network to breach the Access Undertaking; and (k) Aurizon Network has sufficient capability in its Infrastructure to grant the Transferred Access Rights and Requested Ancillary Access Rights (if any) to the Transferee without adversely affecting Aurizon Network’s ability to comply with its obligations to Advanced Access Seekers and Access Holders.

Limitation on discretion to refuse Transfer. If the End User Operator gives a Notice of Intention to Transfer under clause 14.1, then (a) the End User Operator will be taken to have relinquished the Nominated Access Rights under this Agreement; and (b) the Transferred Access Rights and the Requested Ancillary Access Rights (if any) will be granted to the Transferee for the Transfer Period under the Transferee Access Agreement, provided that: (c) the Transferred Access Rights and the Requested Ancillary Access Rights (if any) are for Cyclic Traffic; (d) Aurizon Network and the End User Operator have entered into an agreement, in a form reasonably acceptable to Aurizon Network, to vary the terms of this Agreement to address the relinquishment of the Nominated Access Rights (including, for the avoidance of doubt, variations to the Access Charge Rates); (e) the Transferred Access Rights and the Requested Ancillary Access Rights (if any) are granted under a new or varied access agreement between Aurizon Network and the Transferee (Transferee Access Agreement) that: (i) has, to Aurizon Network’s satisfaction, been negotiated and agreed in accordance with the requirements of the Access Undertaking; and (ii) except for a condition in relation to the grant of the Transferred Access Rights and the Requested Ancillary Access Rights (if any) taking effect under this clause 14, is unconditional and binding upon the Transferee; (f) Aurizon Network’s obligation to provide, and the Transferee’s right to utilise, the Transferred Access Rights and the Requested Ancillary Access Rights (if any) under the Transferee Access Agreement does not commence until the later of: (i) the date upon which the End User Operator pays the Transfer Fee to Aurizon Network; and (ii) the Transfer Date; (g) the Transferee has demonstrated to the reasonable satisfaction of Aurizon Network that the Transferee: (i) will hold, or will have the benefit of, Supply Chain Rights (as if the Transferee was the End User Operator for the purposes of that definition) for the commencement of operation of Network Train Services utilising the Transferred Access Rights and the Requested Ancillary Access Rights (if any); and (ii) is reasonably likely to continue to hold, or have the benefit of, those Supply Chain Rights for the whole of the Transfer Period. In determining whether the Transferee will continue to hold, or have the benefit of, the relevant Supply Chain Rights for the purposes of this clause 14.2(g)(ii), the Parties are to assume, if the Transferee or the holder of those Supply Chain Rights has an option granted in its favour to renew such Supply Chain Rights or extend the term of such Supply Chain Rights, that such option to renew or extend is exercised; (h) the End User Operator has complied with this clause 14; (i) the End User Operator and the Transferee have complied with any requirements under the Access Undertaking in relation to the Transfer and the grant of the Requested Ancillary Access Rights (if any); (j) giving effect to the Transfer and the grant of the Requested Ancillary Access Rights (if any) will not cause Aurizon Network to breach the Access Undertaking; and (k) Aurizon Network has sufficient capability in its Infrastructure to grant the Transferred Access Rights and Requested Ancillary Access Rights (if any) to the Transferee without adversely affecting Aurizon Network’s ability to comply with its obligations to Advanced Access Seekers and Access Holders.

Limitation on discretion to refuse Transfer. If the End User Customer gives a Notice of Intention to Transfer under clause 14.114.1,15.1, then (a) the End User Operator will be taken to have relinquished the Nominated Access Rights under this Agreement; and (b) the Transferred Access Rights and the Requested Ancillary Access Rights (if any) will be granted to the Transferee for the Transfer Period under the Transferee Access Agreement, provided that: (c) the Transferred Access Rights and the Requested Ancillary Access Rights (if any) are for Cyclic Traffic; (d) Aurizon Network the origin and destination of, and commodity for, the End User have entered into an agreementTransferred Access Rights under the Transferee Access Agreement are the same as the Origin and Destination of, in a form reasonably acceptable to Aurizon Networkand commodity for, to vary the terms of this Agreement to address the relinquishment of the Nominated Access Rights (including, for the avoidance of doubt, variations to the Access Charge Rates)Rights; (e) the Transferred Access Rights and the Requested Ancillary Access Rights (if any) are granted under a new or varied access agreement between Aurizon Network and the Transferee (Transferee Access Agreement) that: (i) has, to Aurizon Network’s satisfaction, been negotiated and agreed in accordance with the requirements of the Access Undertaking; and; (ii) except for a condition in relation to the grant of the Transferred Access Rights and the Requested Ancillary Access Rights (if any) taking effect under this clause 1414,15, is unconditional and binding upon the Transferee; (fiii) Aurizon Network’s obligation includes terms relating to provide, TOP Charges and Relinquishment Fees which are the Transferee’s right same as the terms relating to utilise, TOP Charges and Relinquishment Fees under this Agreement: (A) to the Transferred Access Rights and the Requested Ancillary Access Rights (if any) under extent that the Transferee Access Agreement does not commence until relates to the later of: (i) the date upon which the End User pays the Transfer Fee to Aurizon NetworkTransferred Access Rights; and (iiB) until at least the end of the Transfer Period for the Nominated Access Rights; and (iv) includes a provision, on terms and conditions satisfactory to Aurizon Network, under which the Transferee agrees to pay all Adjustment Charges (Transferred Adjustment Charges) that, but for the Transfer of the Nominated Access Rights under this clause 14,15, are, or would have become, payable by the Operator in relation to Train Services operated by the Operator utilising the Nominated Access Rights prior to the commencement of the Transferee Access Agreement (whether or not those Adjustment Charges are approved by the QCA before or after the commencement of the Transferee Access Agreement); (f) the Transfer DateCustomer (including for the avoidance of doubt, if the Customer is comprised of more that one entity, each entity comprised in the Customer) has warranted, in writing, to Aurizon Network that it is the sole end Customer of the Train Services operated by the Operator utilising the Nominated Access Rights; (g) if the Transferee Customer is comprised of more than one entity, each entity comprised in the Customer has demonstrated warranted, in writing, to the reasonable satisfaction of Aurizon Network that it agreed to the Transferee: (i) will hold, or will have the benefit of, Supply Chain Rights (as if the Transferee was the End User for the purposes of that definition) for the commencement of operation of Network Train Services utilising the Transferred Access Rights and the Requested Ancillary Access Rights (if any); and (ii) is reasonably likely to continue to hold, or have the benefit of, those Supply Chain Rights for the whole giving of the Transfer Period. In determining whether the Transferee will continue Notice of Intention to hold, or have the benefit of, the relevant Supply Chain Rights for the purposes of this clause 14.2(g)(ii), the Parties are to assume, if the Transferee or the holder of those Supply Chain Rights has an option granted in its favour to renew such Supply Chain Rights or extend the term of such Supply Chain Rights, that such option to renew or extend is exercisedTransfer; (h) the End User has complied with this clause 14;rail haulage agreement (or if there is more that one such agreement, each agreement) between the Operator and Customer under which the Train Services utilising the Nominated Access Rights were operated prior to the Transfer taking effect: (i) the End User and the Transferee have complied with any requirements under the Access Undertaking in relation to the Transfer and the grant of the Requested Ancillary Access Rights (if any); (j) giving effect to the Transfer and the grant of the Requested Ancillary Access Rights (if any) will not cause Aurizon Network to breach the Access Undertakingwas signed after 1 March 2002; and (k) Aurizon Network has sufficient capability in its Infrastructure to grant the Transferred Access Rights and Requested Ancillary Access Rights (if any) to the Transferee without adversely affecting Aurizon Network’s ability to comply with its obligations to Advanced Access Seekers and Access Holders.or

Limitation on discretion to refuse Transfer. If the End User gives a Notice of Intention to Transfer under clause 14.113.1,14.1, then (a) the End User will be taken to have relinquished the Nominated Access Rights under this Agreement; and (b) the Transferred Access Rights and the Requested Ancillary Access Rights (if any) will be granted to the Transferee for the Transfer Period under the Transferee Access Agreement, provided that: (c) the Transferred Access Rights and the Requested Ancillary Access Rights (if any) are for Cyclic Traffic; (d) Aurizon Network and the End User have entered into an agreement, in a form reasonably acceptable to Aurizon Network, to vary the terms of this Agreement to address the relinquishment of the Nominated Access Rights (including, for the avoidance of doubt, variations to the Access Charge Rates); (e) the Transferred Access Rights and the Requested Ancillary Access Rights (if any) are granted under a new or varied access agreement between Aurizon Network and the Transferee (Transferee Access Agreement) that: (i) has, to Aurizon Network’s satisfaction, been negotiated and agreed in accordance with the requirements of the Access Undertaking; and (ii) except for a condition in relation to the grant of the Transferred Access Rights and the Requested Ancillary Access Rights (if any) taking effect under this clause 1413,14, is unconditional and binding upon the Transferee; (f) Aurizon Network’s obligation to provide, and the Transferee’s right to utilise, the Transferred Access Rights and the Requested Ancillary Access Rights (if any) under the Transferee Access Agreement does not commence until the later of: (i) the date upon which the End User pays the Transfer Fee to Aurizon Network; and (ii) the Transfer Date; (g) the Transferee has demonstrated to the reasonable satisfaction of Aurizon Network that the Transferee: (i) will hold, or will have the benefit of, Supply Chain Rights (as if the Transferee was the End User for the purposes of that definition) for the commencement of operation of Network Train Services utilising the Transferred Access Rights and the Requested Ancillary Access Rights (if any); and (ii) is xxxxxx reasonably likely to continue to hold, or have the benefit of, those Supply Chain Rights for the whole of the Transfer Period (or the whole of the Transfer Period. In determining whether the Transferee will continue to hold, or have the benefit of, the relevant Supply Chain Rights for the purposes of this clause 14.2(g)(ii), the Parties are to assume, if the Transferee or the holder of those Supply Chain Rights has exerciseshas an option granted in its favour to renew such Supply Chain Rights or extend the term of such Supply Chain Rights), that such option to renew or extend is exercised; (h) the End User has complied with this clause 141314; (i) the End User and the Transferee have complied with any requirements under the Access Undertaking in relation to the Transfer and the grant of the Requested Ancillary Access Rights (if any); (j) giving effect to the Transfer and the grant of the Requested Ancillary Access Rights (if any) will not cause Aurizon Network to breach the Access Undertaking; and (k) Aurizon Network has sufficient capability in its Infrastructure to grant the Transferred Access Rights and Requested Ancillary Access Rights (if any) to the Transferee without adversely affecting Aurizon Network’s ability to comply with its obligations to Advanced Access Seekers and Access Holders.

Limitation on discretion to refuse Transfer. If the End User Customer gives a Notice of Intention to Transfer under clause 14.1, then (a) the End User Operator will be taken to have relinquished the Nominated Access Rights under this Agreement; and (b) the Transferred Access Rights and the Requested Ancillary Access Rights (if any) will be granted to the Transferee for the Transfer Period under the Transferee Access Agreement, provided that: (c) the Transferred Access Rights and the Requested Ancillary Access Rights (if any) are for Cyclic Traffic; (d) Aurizon Network the origin and destination of, and commodity for, the End User have entered into an agreementTransferred Access Rights under the Transferee Access Agreement are the same as the Origin and Destination of, in a form reasonably acceptable to Aurizon Networkand commodity for, to vary the terms of this Agreement to address the relinquishment of the Nominated Access Rights (including, for the avoidance of doubt, variations to the Access Charge Rates)Rights; (e) the Transferred Access Rights and the Requested Ancillary Access Rights (if any) are granted under a new or varied access agreement between Aurizon Network and the Transferee (Transferee Access Agreement) that: (i) has, to Aurizon Network’s satisfaction, been negotiated and agreed in accordance with the requirements of the Access Undertaking; and; (ii) except for a condition in relation to the grant of the Transferred Access Rights and the Requested Ancillary Access Rights (if any) taking effect under this clause 14, is unconditional and binding upon the Transferee; (iii) includes terms relating to TOP Charges and Relinquishment Fees which are the same as the terms relating to TOP Charges and Relinquishment Fees under this Agreement: (A) to the extent that the Transferee Access Agreement relates to the Transferred Access Rights; and (B) until at least the end of the Transfer Period for the Nominated Access Rights; and (iv) includes a provision, on terms and conditions satisfactory to Aurizon Network, under which the Transferee agrees to pay all Adjustment Charges (Transferred Adjustment Charges) that, but for the Transfer of the Nominated Access Rights under this clause 14, are, or would have become, payable by the Operator in relation to Train Services operated by the Operator utilising the Nominated Access Rights prior to the commencement of the Transferee Access Agreement (whether or not those Adjustment Charges are approved by the QCA before or after the commencement of the Transferee Access Agreement); (f) the Customer (including for the avoidance of doubt, if the Customer is comprised of more that one entity, each entity comprised in the Customer) has warranted, in writing, to Aurizon Network that it is the sole end Customer of the Train Services operated by the Operator utilising the Nominated Access Rights; (g) if the Customer is comprised of more than one entity, each entity comprised in the Customer has warranted, in writing, to Aurizon Network that it agreed to the giving of the Notice of Intention to Transfer; (h) the rail haulage agreement (or if there is more that one such agreement, each agreement) between the Operator and Customer under which the Train Services utilising the Nominated Access Rights were operated prior to the Transfer taking effect: (i) was signed after 1 March 2002; or (ii) if signed on or before 1 March 2002: (A) the particulars of the agreement (such as the parties and term) were notified to the QCA prior to 30 June 2006; and (B) the agreement was varied after 1 March 2002 to extend the term of the agreement and the period that is the extension of that term has commenced; (i) the Customer has provided Aurizon Network with a legally enforceable written undertaking (including security, if required by Aurizon Network, for the due and proper performance of that undertaking) indemnifying Aurizon Network for all Claims (including Consequential Loss) of any nature suffered or incurred by, or made or brought against, Aurizon Network in connection with: (i) the Transfer (including any costs arising in respect of any Claim by the Operator); and (ii) any failure by the Transferee to pay all Transferred Adjustment Charges when due; (j) the Operator did not give Aurizon Network a notice under clause 14.3(a) within the time required under clause 14.3(a); (k) if the Operator gave Aurizon Network a notice under clause 14.3(a) within the time required under clause 14.3(a), Aurizon Network is satisfied that the matters specified in clauses 14.3(a)(i), 14.3(a)(ii) and 14.3(a)(iii) are satisfied; (l) Aurizon Network’s obligation to provide, and the Transferee’s right to utilise, the Transferred Access Rights and the Requested Ancillary Access Rights (if any) under the Transferee Access Agreement does not commence until the later of: (i) the date upon which the End User Customer pays the Transfer Fee to Aurizon Network; and (ii) the Transfer Date; (gm) the Transferee has demonstrated to the reasonable satisfaction of Aurizon Network that the Transferee: (i) will hold, or will have the benefit of, Supply Chain Rights (as if the Transferee was the End User Operator for the purposes of that definition) for the commencement of operation of Network Train Services utilising the Transferred Access Rights and the Requested Ancillary Access Rights (if any)Rights; and (ii) is reasonably likely to will continue to hold, or have the benefit of, those Supply Chain Rights for the whole of the Transfer Period. In determining whether Period (or the Transferee will continue to hold, or have whole of the benefit of, the relevant Supply Chain Rights for the purposes of this clause 14.2(g)(ii), the Parties are to assume, Transfer Period if the Transferee or the holder of those Supply Chain Rights has exercises an option granted in its favour to renew such Supply Chain Rights or extend the term of such Supply Chain Rights, that such option to renew or extend is exercised); (hn) the End User has Operator and the Customer have complied with this clause 1414 (in the case of the Customer, as if the Customer was a party to this Agreement); (io) the End User Operator, the Customer and the Transferee have complied with any requirements under the Access Undertaking in relation to the Transfer and the grant of the Requested Ancillary Access Rights (if any);Transfer; and (jp) giving effect to the Transfer and the grant of the Requested Ancillary Access Rights (if any) will not cause Aurizon Network to breach the Access Undertaking; and (k) Aurizon Network has sufficient capability in its Infrastructure to grant the Transferred Access Rights and Requested Ancillary Access Rights (if any) to the Transferee without adversely affecting Aurizon Network’s ability to comply with its obligations to Advanced Access Seekers and Access Holders.