EXHIBIT 10.51
XXXXX XXXXXX XXXXXXX
LAWYERS
MULTI-PARTY AGREEMENT
(PURCHASE DOCUMENTS)
The Xxx Xxxxxx Xxxxxxx MLC
The Western Australian Government Railways Commission
The Xxx Xxxxxxx Fairfax Court, Treasurer
WestNet StandardGauge Pty Ltd and Westnet NarrowGauge Pty Ltd
Australia Western Railroad Pty Ltd
Australian Railroad Group Pty Ltd
ANZ Capel Court Limited
Xxxxx 00, Xxxxxxx Xxxxxx
000 Xx Xxxxxx'x Xxxxxxx
XXXXX XX 0000
Telephone: (00) 0000 0000
Fax: (00) 0000 0000 Ref: MBW. MJB 12745944
(C)Xxxxx Xxxxxx Xxxxxxx 2000
CONTENTS
1. INTERPRETATION 1
1.1 Definitions 1
1.2 Definitions in the Lease 1
1.3 Rules for interpreting this document 1
1.4 Inconsistency 1
1.5 Capacity of Security Trustee 1
2. CONSENT AND ACKNOWLEDGEMENT 1
2.1 By the Government Parties 1
2.2 By the Purchaser, the Guarantor and the Network Lessee 1
2.3 By the Security Trustee 1
2.4 By the Treasurer 1
3. DEFAULT 1
3.1 Notifications 1
3.2 Enforcing Party's cure rights 1
3.3 Exercise of Rights by the Government Parties 1
3.4 Cure Procedure 1
3.5 Enforcement of a Security 1
3.6 Effect of Assignment 1
4. MINISTER'S REPRESENTATIONS AND WARRANTIES 1
5. NOTIFICATION BY SECURITY TRUSTEE 1
6. NOTICES 1
6.1 How to give a notice 1
6.2 When a notice is given 1
6.3 Address for notices 1
7. AMENDMENT AND ASSIGNMENT 1
7.1 Amendment 1
7.2 Assignment by Security Trustee 1
7.3 Assignment by Government Parties 1
8. DISCHARGE/RELEASE OF SECURITY 1
9. TREASURER'S GUARANTEE AND INDEMNITY 1
10. GENERAL 1
10.1 Governing law 1
10.2 Stamp Duty 1
10.3 Giving effect to this document 1
10.4 No waiver 1
10.5 Operation of this document 1
10.6 Counterparts 1
10.7 Attorneys 1
1 NETWORK LESSEE'S SECURITY 1
2 PROJECT DOCUMENTS 1
ii
MULTI-PARTY AGREEMENT- PURCHASE DOCUMENTS
DATE 2000
PARTIES
THE XXX XXXXXX XXXXXXX, MLC, exercising powers under sections 13, 42
and 44 of the Act ("Minister")
THE WESTERN AUSTRALIAN GOVERNMENT RAILWAYS COMMISSION exercising powers
under sections 8(7) and 44 of the Act and section 62 of the Government
Railways Xxx 0000 (WA) ("COMMISSION")
THE XXX XXXXXXX FAIRFAX COURT, MLA, TREASURER, exercising power under
section 20 of the Act ("TREASURER")
WESTNET STANDARDGAUGE PTY LTD ACN 000 000 000 and WESTNET NARROWGAUGE
PTY LTD ACN 094 736 900 ("NETWORK LESSEE")
AUSTRALIA WESTERN RAILROAD PTY LTD ACN 094 792 275 ("PURCHASER")
AUSTRALIAN RAILROAD GROUP PTY LTD ACN 080 579 308 ("GUARANTOR")
ANZ CAPEL COURT LIMITED ACN 004 768 807 in its capacity as trustee for
the Australian Railroad Group Security Trust ("SECURITY TRUSTEE")
RECITALS
A. The parties to this document (other than the Security Trustee) are
parties to the Project Documents.
B. The parties to this document (other than the Government Parties) have
entered into the Security in favour of the Security Trustee as security
Trustee for the financiers under certain senior debt financial
arrangements to be made available to the Borrower.
C. It is a condition precedent to the availability of such senior debt
financial arrangements to the Borrower that the parties enter into this
document.
OPERATIVE PROVISIONS
1. INTERPRETATION
1.1 DEFINITIONS
The following definitions apply in this document unless the context
requires otherwise.
"ANCILLARY AGREEMENTS" has the same meaning as in the Sale Agreement
except that the Operating Agreements are not Ancillary Agreements for
the purposes of this document and nothing in this document applies to
the Operating Agreements.
"APPLICABLE CURE PERIOD" means, in the case of a Material Event of
Default, a period of 8 months and, in the case of any other Default:
(a) 120 Business Days in the case of a Default under either of the
Leases or under the Sale Agreement or
(b) 21 days in the case of a Default under any of the Ancillary
Agreements,
(or, in either case, any longer period agreed by the Government Parties
under clause 3.3(c)(i)), in each case being a period commencing on the
date of notice being given to the Security Trustee under clause 3.1(a).
"BORROWER" means ARG Financing Pty Ltd ACN 094 768 078
"Default" means any Event of Default or Material Event of Default or
any event which, with the giving of notice, passage of time or
fulfilment of any other condition, may become an Event of Default or a
Material Event of Default or which may entitle any of the Government
Parties to terminate, rescind or treat as repudiated, or require the
Purchasing Parties to dispose of or surrender, any of the Project
Documents, or to take control of the Corridor Land or the Leased
Railway Infrastructure or to exercise any other Rights under the
Project Documents or at law or in equity as a consequence of the
occurrence of that event
"ENFORCING PARTY" means the Security Trustee or any receiver, receiver
and manager, administrator, agent or attorney appointed under the
Security or under the Corporations Law.
"GOVERNMENT PARTIES" means the Minister and the Commission or either of
them as the context requires.
"LEASES" means each of the Rail Freight Corridor Land Use Agreement and
Railway Infrastructure Leases dated on or about the date of this
document between the Minister, the Commission, the Treasurer, one or
other of the parties comprising the Network Lessee and the Purchaser
and the Guarantor.
"MATERIAL EVENT OF DEFAULT" has the same meaning as in the Leases, with
the exception of the event described at sub-clause (g) of that
definition.
"PROJECT DOCUMENT" means the documents referred to in schedule 2.
"PURCHASING PARTIES" means all or any of the Network Lessee, the
Purchaser, the Guarantor and the Borrower as the context requires.
"RIGHT" means any right, entitlement, discretion, power or remedy,
whether express or implied.
"SALE AGREEMENT" has the same meaning as in the Leases.
"SECURITY" means the document(s) referred to in schedule 1.
"SECURITY TRUST DEED" means the Security Sharing Deed dated on or about
the date of this document between the Borrower, Australia and New
Zealand Banking Group Ltd and the Security Trustee.
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1.2 DEFINITIONS IN THE LEASES
Subject to clause 1.1, terms that are defined in the Leases have the
same meanings in this document
1.3 RULES FOR INTERPRETING THIS DOCUMENT
(a) Clause 1.3 of the Leases applies as if incorporated in this
document as if references to "THIS AGREEMENT" were to "THIS
DOCUMENT".
(b) A reference in this document to remedy of a Default includes,
where the Default is not capable of remedy within the time
allowed under this document or the Project Documents, the
making of other arrangements reasonably satisfactory to the
Government Parties including the payment of reasonable
compensation where compensation is an adequate remedy for the
Government Parties.
(c) A reference to include, includes or including does not limit
what else might be included.
1.4 INCONSISTENCY
If there is any inconsistency between this document and the Project
Documents, this document will prevail.
1.5 CAPACITY OF SECURITY TRUSTEE
The Security Trustee enters into this document in its capacity as
trustee under the Security Trust Deed and, notwithstanding anything in
this document, each party to this document (other than the Security
Trustee) acknowledges that any rights which it may have against the
Security Trustee under or in respect of this document shall not be
against the Security Trustee personally but against the Security
Trustee solely in its capacity as trustee under the Security Trust
Deed. Accordingly, the Security Trustee may not be called on or be
liable to satisfy any such rights out of any of its personal assets
(other than any right of indemnity in its capacity as trustee under the
Security Trust Deed), and recourse (if any) against the Security
Trustee shall be limited to the assets held by it in its capacity as
trustee under the Security Trust Deed.
2. CONSENT AND ACKNOWLEDGEMENT
2.1 BY THE GOVERNMENT PARTIES
(a) The Government Parties consent to the grant of the Security,
and acknowledge that:
(i) the grant of the Security is not, and the exercise by
an Enforcing Party of Rights under the Security will
not be, or be treated as, a Default under the Project
Documents or entitle the Government Parties to
exercise any Right (including termination) under the
Project Documents or otherwise as a result of the
occurrence of a Default (including, without
limitation, by virtue of clause 13.2 of the Leases);
and
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(ii) the Rights of the Minister on the occurrence of a
Default under clause 23 of the Leases and the rights
of the Government Parties under equivalent provisions
in the other Project Documents are in all respects
subordinate to the Rights of the Security Trustee
under this document and the Security.
(b) The Government Parties agree with the Security Trustee that an
Enforcing Party may at any time (subject to the terms of any
agreement or document between the Security Trustee and, among
others, the Purchasing Parties) exercise all or any of the
Rights (including any Right to cure or take any remedial or
other action in relation to any Default), and perform all or
any of the obligations, of the Purchasing Parties under the
Project Documents as if it were bound by those Project
Documents in lieu of, and to the exclusion, of the Purchasing
Parties.
(c) The Government Parties acknowledge that the Purchasing Parties
cannot amend, terminate, release or surrender any of their
Rights under the Project Documents without the prior written
consent of the Security Trustee and agree not to consent to
any such amendment or accept any such termination, release or
surrender without the prior written consent of the Security
Trustee. Any amendment, termination, release or surrender of
the Purchasing Parties' Rights under the Project Documents
without the prior written consent of the Security Trustee is
of no effect.
(d) The Government Parties acknowledge that the exercise of their
Rights under the Project Documents are restricted as provided
in clause 3.
(e) The Government Parties agree to:
(i) observe and perform their obligations under the
Project Documents;
(ii) use all reasonable endeavours as legal owner to
remove any prescriptive easements or rights of
adverse possession which may during the term of the
Leases arise over the Corridor Land or the Leased
Railway Infrastructure and which unreasonably
interfere with the use thereof by the Network Lessee
for a Permitted Use; and
(iii) provide to the Security Trustee at the same time as
the Purchasing Parties all material notices given by
it to the Purchasing Parties under or in relation to
the Project Documents.
2.2 BY THE PURCHASER, THE GUARANTOR AND THE NETWORK LESSEE
Each of the Purchaser, the Guarantor and the Network Lessee
acknowledges that:
(a) it is bound by and must do everything within its power to
ensure that the Government Parties and the Security Trustee
may exercise their Rights under this document;
(b) this document is intended only to benefit the Security Trustee
and the Government Parties and that it may not take any action
to cause this document to be implemented nor object if it is
not implemented; and
4
(c) as between the Purchaser, the Guarantor, the Network Lessee
and the Government Parties, nothing in this document amends
the Project Documents.
2.3 BY THE SECURITY TRUSTEE
The Security Trustee agrees that nothing in this document authorises
the Security Trustee to do:
(a) anything under the Security in relation to the Project
Documents, the Corridor Land and the Leased Railway
Infrastructure which the Purchasing Parties may not do under
the Project Documents; or
(b) any act or thing without the Government Parties' consent where
under the Project Documents the Purchasing Parties require the
Government Parties' consent,
and acknowledges (without prejudice to the Rights conferred on it by
this document) that nothing in the Security confers on the Security
Trustee Rights in relation to the Corridor Land and the Leased
Railway Infrastructure greater than the Rights of the Network Lessee
under the Leases.
2.4 BY THE TREASURER
The Treasurer acknowledges and endorses the obligations assumed by the
Government Parties under this document and agrees to cause the
Government Parties to perform those obligations.
3. DEFAULT
3.1 NOTIFICATIONS
(a) The Government Parties shall, and the Purchasing Parties agree
that the Government Parties may:
(i) notify the Security Trustee of any Default or Force
Majeure promptly after the Government Parties become
aware of it; and
(ii) give the Security Trustee copies of all documents
relating to any Default or Force Majeure issued by
the Government Parties to the Purchasing Parties
under the Project Documents at the same time as those
documents are given to the Purchasing Parties.
(b) The Security Trustee shall notify the Minister if the Security
becomes enforceable promptly after the Security Trustee
becomes aware of it.
3.2 ENFORCING PARTY'S CURE RIGHTS
(a) On becoming aware of any Default an Enforcing Party may (but
is not obliged to) take steps to remedy the Default or rectify
the consequences of the Default. The Government Parties shall
recognise any such action as the action of the Network Lessee
or the Purchaser (as the case may be) irrespective of whether
or not the Security Trustee has enforced the Security.
5.
(b) To the extent reasonably requested by an Enforcing Party for
the purpose of exercising its Rights under this document (and
whether or not the Security Trustee has enforced the
Security), the Government Parties shall promptly:
(i) provide the Enforcing Party with any information
which the Government Parties has identifying the
Default and indicate what steps (if any) it considers
could be taken to remedy the Default; and
(ii) to the extent it is able to do so, facilitate the
Enforcing Party's access to the Corridor Land and the
Leased Railway Infrastructure to the extent permitted
by law and at the Enforcing Party's risk.
(c) The Network Lessee and the Purchaser agree to the Enforcing
Party being given information and access under clause 3.2(b).
3.3 EXERCISE OF RIGHTS BY THE GOVERNMENT PARTIES
Despite anything in the Project Documents or any other document, and
whether or not the Security Trustee has taken any action to enforce the
Security, the Government Parties may only exercise any Rights which,
but for this sub-clause, it would be entitled to exercise under the
Project Documents as a result of a Default if:
(a) that Default is subsisting under the Project Documents;
(b) the Government Parties have given notice to the Security
Trustee setting out details of that Default giving rise to
that exercise and identifying it as either a Material Event of
Default, an Event of Default or another Default; and
(c) any of the following applies:
(i) if that Default is:
(A) a Material Event of Default which is capable
of remedy (including by way of remedy in any
manner referred to in clause 1.3(b)), that
Material Event of Default has not been
remedied within the Applicable Cure Period
(or any longer period agreed by the
Government Parties, that agreement not to be
unreasonably withheld so long as the
Government Parties are of the reasonable
opinion that the remedy of that Material
Event of Default is being diligently pursued
by an Enforcing Party); or
(B) any other event constituting a Default which
is capable of remedy (including by way of
remedy in any manner referred to in clause
1.3(b)), that Default has not been remedied
within:
(I) 120 Business Days in the case of a
Default under either of the Leases
or under the Sale Agreement; or
(II) 21 days in the case of a Default
under any of the Ancillary
Agreements,
6.
(or, in any such case, any longer period agreed by
the Government Parties, that agreement not to be
unreasonably withheld so long as the Government
Parties are of the reasonable opinion that the remedy
of that Default is being diligently pursued by an
Enforcing Party) of the date on which the notice
referred to in clause 3.3(b) is given; or
(ii) if that Default is not a Default which is capable of
remedy (including by way of remedy in any manner
referred to in clause 1.3(b)), an Enforcing Party
does not enter into possession of the Purchasing
Parties' Rights under the Project Documents and
commence and continue to perform its obligations
under the Project Documents within:
(A) if the Default is a Material Event of
Default, the Applicable Cure Period; or
(B) in the case of any Default other than a
Material Event of Default:
(I) 120 Business Days in the case of a
Default under either of the leases
or under the Sale Agreement; or
(II) 21 days in the case of a Default
under any of the Ancillary
Agreements,
of the date on which the notice referred to
in clause 3.3(b) is given; or
(iii) the Security Trustee has notified the Government
Parties that it elects not to take any steps to
remedy (including by way of remedy in any manner
referred to in clause 1.3(b)) that Default,
and may not give such a notice or exercise such a Right during
an Applicable Cure Period (or so long as any other enforcement
action subsists).
(d) For the avoidance of doubt, if an act, omission, event or
circumstance is or is capable of becoming a Material Event of
Default under a Lease ("First Lease") and as a result the
First Lease is terminated, thereby causing a Default under the
other Lease ("Other Lease"), no Applicable Cure Period shall
apply in respect of that Default under the Other Lease and the
Government Parties may immediately give such notice or
exercise such Right in respect of such Default under the Other
Lease as they may in their discretion determine.
3.4 CURE PROCEDURE
(a) During the Applicable Cure Period (or, in the case of the
enforcement of a Security Interest or the occurrence of an
Insolvency Event, within 10 Business Days) the Government
Parties shall afford the Security Trustee the opportunity to
produce a detailed proposal ("Proposal") for remedying the
Default.
(b) If the Proposal is reasonably acceptable to the Government
Parties then, so long as:
7.
(i) the Security Trustee implements the Proposal with
reasonable diligence; and
(ii) the Security Trustee complies with its obligations
under this document,
the Government Parties must not terminate the Project
Documents based on the Default.
3.5 ENFORCEMENT OF A SECURITY
(a) If, at any time during the Term of the Project Documents, an
Enforcing Party enters into possession of the Corridor Land or
the Leased Railway Infrastructure or any other property of any
of the Purchasing Parties or if there is any exercise of power
of sale by the Enforcing Party of the Freight Business then
the Enforcing Party shall:
(i) within 10 Business Days, provide the Government
Parties with a reasonable plan for achieving full
compliance with the Purchasing Parties' obligations
under the Project Documents to be assumed by the
Enforcing Party or another person reasonably
acceptable to the Government Parties within 6 months
from the entry into possession, foreclosure or
extinguishment; and
(ii) diligently pursue, and keep the Government Parties
informed as to, the implementation of the plan using
reasonable endeavours to achieve full compliance with
the Purchasing Parties' obligations under the Project
Documents in accordance with the timetable in the
plan.
(b) The Government Parties agree with the Security Trustee that
they will not withhold their consent to an assignment of the
Project Documents on enforcement of the Security by the
Security Trustee provided that, in the case of the Leases:
(i) in the Minister's reasonable opinion, such an
assignment would be consistent with the State's
objectives referred to in Recital E to the Leases;
(ii) the assignee is a person who has demonstrated by the
supply to the Minister of evidence acceptable to the
Minister (acting reasonably) that it is experienced
in and of good reputation in relation to maintaining
and operating a rail freight network as permitted by
the Project Documents, and is financially able to
operate and maintain that network and is or will be
at the date of assignment accredited as an owner and
operator under the Rail Safety Act and that it will
comply with Section 12(3) of the Act; and
(iii) clauses 28(b) and (c) of the Leases are complied with
(whether by the Network Lessee or the Enforcing
Party).
(c) In relation to any assignment under clause 3.5(b) the Minister
agrees to do all such further acts and things as the Security
Trustee reasonably requires (including entering into documents
and making orders under the Act) to effect the transfer of all
rights and obligations in relation to the Freight Business to
the assignee (including those arising under the Project
Documents), which were originally
8.
effected in relation to the sale of the Freight Business to
the Purchaser, to the assignee.
3.6 EFFECT OF ASSIGNMENT
(a) Upon any assignment contemplated by clause 3.5(b) taking
effect:
(i) subject to clause 3.6(b), any subsisting Default (and
any Right of the Government Parties to terminate the
Project Documents as a result of such Default) shall
be automatically waived;
(ii) all liabilities of the Enforcing Party in connection
with this document and the Project Documents will
cease; and
(iii) the Government Parties and the Treasurer will, at the
cost of the Purchasing Parties, execute any documents
reasonably required by the Enforcing Party for the
purpose of giving effect to the above.
(b) The waiver referred to in clause 3.6(a)(i), for the avoidance
of doubt, does not affect the obligations of the assignee to
comply with the terms of the Project Documents or the Rights
of the Government Parties in respect of any Default occurring
after the assignment.
3.7 INTERRUPTION OF SERVICES
Nothing in clause 3 restricts the Government Parties from exercising at
any time (whether or not within the Applicable Cure Period) any Right
to remedy or to mitigate the effects of any Default if the Government
Parties reasonably consider that such remedy or mitigation is necessary
or desirable in the interests of procuring that there is no
interruption to the continued availability of rail freight services
within the State.
4. MINISTER'S REPRESENTATIONS AND WARRANTIES
The Minister represents and warrants to the Security Trustee that as of
the date of this document and as at the Commencement Date:
(a) the Minister has legal capacity under the Act to enter into
this document on behalf of the State of Western Australia;
(b) the Commission has legal capacity under the Act to enter into
this document on its behalf and as agent of the State of
Western Australia;
(c) the State of Western Australia has good title to the Corridor
Land and Leased Railway Infrastructure to enable the Minister
to grant the rights and power to the Network Lessee under the
Lease;
(d) except for the Existing Third Party Interests, the Corridor
Land is not subject to any Encumbrance which would
unreasonably interfere with the use by the Network Lessee of
the Corridor Land or Leased Railway Infrastructure for a
Permitted Use;
9.
(e) except for the Non-Corridor Leased Railway Infrastructure, the
Leased Railway Infrastructure is situated on Corridor Land;
and
(f) the Corridor Land is that land described in the Corridor Land
Designation Order and in the Maps to the level of accuracy
approved on the Maps.
5. NOTIFICATION BY SECURITY TRUSTEE
THE SECURITY TRUSTEE SHALL:
(a) provide to the Minister copies of any notice issued by it to
the Purchasing Parties demanding payment before their due date
of the moneys secured by the Security at approximately the
same time as or promptly after the notice is given to the
Purchasing Parties.
(b) promptly advise the Minister of any action taken to enforce
the Security.
(c) advise the Minister of the discharge of the Security.
6. NOTICES
6.1 HOW TO GIVE A NOTICE
A notice, consent or other communication under this document is only
effective if it is:
(a) in writing, signed by or on behalf of the person giving it;
(b) addressed to the person to whom it is to be given; and
(c) either:
(i) delivered or sent by pre-paid mail (by airmail, if
the addressee is overseas) to that person's address;
or
(ii) sent by fax to that person's fax number and the
machine from which it is sent produces a report that
states that it was sent in full.
6.2 WHEN A NOTICE IS GIVEN
A notice, consent or other communication that complies with this clause
is regarded as given and received:
(a) if it is delivered or sent by fax:
(i) by 5.00 pm (local time in the place of receipt) on a
Business Day - on that day; or
(ii) after 5.00 pm (local time in the place of receipt) on
a Business Day, or on a day that is not a Business
Day - on the next Business Day; and
(b) if it is sent by mail within Australia - 3 Business Days after
posting.
10.
6.3 ADDRESS FOR NOTICES
A person's address and fax number are those set out below, or as the
person notifies the sender:
11.
GOVERNMENT PARTIES
Address: X/- Xxxxxxxx
Xxxxxxxx Xxxxxx
Xxxx Xxxxxx
Xxxx Xxxxx XX 0000
Fax number: (000) 0000 0000
Attention: The Commissioner
PURCHASING PARTIES
Address: X/- Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxxx Xxxxxxx
Xxxxxxxx XXX 0000
Fax number: (00) 0000 0000
Attention: Xxxxxx Xxxxx
SECURITY TRUSTEE
Address: C/- Xxxxx Xxxxx (Westrail)
Xxxxx 00
000 Xxxxxxx Xxxxxx
Xxxxxxxxx XXX 0000
Fax number: (00) 0000 0000
Attention: Xxxxx Xxxxx
7. AMENDMENT AND ASSIGNMENT
7.1 AMENDMENT
This document can only be amended, supplemented, replaced or novated by
another document signed by the parties.
7.2 ASSIGNMENT BY SECURITY TRUSTEE
(a) The Security Trustee may not transfer its rights and
obligations under this document to a transferee unless that
transferee executes a deed agreeing to be bound by this
document in form and substance satisfactory to the Government
Parties. The Government Parties, the Treasurer and the
Purchasing Parties will also execute that document if
necessary for the purposes of giving effect to the transfer.
(b) The Government Parties acknowledge that any change to the
composition or entitlements of persons sharing in the Security
through the Security Trustee will not require the execution of
a deed under clause 7.2(a).
7.3 ASSIGNMENT BY GOVERNMENT PARTIES
The Government Parties may not
12.
(a) assign its rights or transfer its obligations under this
document; or
(b) dispose of any part of the Corridor Land or the Leased Railway
Infrastructure or create any interest therein.
in favour of any other person unless that person executes a deed in
form and substance satisfactory to the Security Trustee agreeing to be
bound by this document and by the Project Documents. The Security
Trustee and the Purchasing Parties will also execute that deed if
necessary for the purposes of giving effect thereto.
8. DISCHARGE/RELEASE OF SECURITY
(a) Subject to paragraph (b), this document shall terminate upon
the discharge or payment of all moneys owed actually and/or
contingently to the Security Trustee and the beneficiaries for
the time being of the Australian Railroad Group Security Trust
provided that if, following such discharge or payment, such
discharge or payment is avoided (under any law relating to
insolvency or otherwise) then the provisions of this document
shall continue to apply to regulate the respective rights and
obligations of the Government Parties and the Security
Trustee.
(b) The obligations of the State Parties under this document will
automatically cease if the only beneficiaries for the time
being of the Australian Railroad Group Security Trust are
persons who are not a bona fide and reputable financial
institution at arm's length from the ARG Parties and their
respective related entities (as defined in section 9 of the
Corporations Law).
9. TREASURER'S GUARANTEE AND INDEMNITY
(a) The Treasurer exercising power under section 20 of the Act,
unconditionally and irrevocably guarantees to the Security
Trustee, the due and punctual performance by the Minister and
the Commission of their obligations under this document
including the obligation to pay any amount.
(b) As a separate undertaking the Treasurer indemnifies the
Security Trustee against all loss or liability arising from
and any costs, charges and expenses incurred in connection
with a breach by the Minister or the Commission of this
document including the obligation to pay any amount.
(c) The Treasurer's liability under this guarantee and indemnity
is not affected by anything which might release or exonerate
or otherwise affect him at law or in equity, including one or
more of the following:
(i) the Security Trustee granting time or other
indulgence to, compromising with or partially
releasing in any way the Commission, the Minister or
the Treasurer;
(ii) laches, acquiescence, delay, acts or omissions on the
part of the Security Trustee;
(iii) any variation or novation of a right of the Security
Trustee;
13.
(iv) any alteration of this document or any agreement
entered into in the performance of this document,
with or without the consent of the Treasurer; and
(v) the invalidity or unenforceability of an obligation
or liability of a person other than the Treasurer,
(d) This guarantee and indemnity is a continuing guarantee and
indemnity and is not discharged by any one payment. This
guarantee and indemnity does not merge on Completion.
(e) The Treasurer waives any right he may have of first requiring
the Security Trustee to commence proceedings or enforce its
rights against the Commission, the Minister or the Treasurer
before claiming under this guarantee and indemnity.
10. GENERAL
10.1 GOVERNING LAW
(a) This document is governed by the law in force in Western
Australia.
(b) Each party submits to the non-exclusive jurisdiction of the
courts exercising jurisdiction in Western Australia, and any
court that may hear appeals from any of those courts, for any
proceedings in connection with this document, and waives any
right it might have to claim that those courts are an
inconvenient forum.
10.2 STAMP DUTY
The Purchasing Parties shall bear any stamp duty (including fines and
penalties) chargeable on this document. The Purchasing Parties shall
indemnify each other party on demand against any liability for that
stamp duty.
10.3 GIVING EFFECT TO THIS DOCUMENT
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.
10.4 NO WAIVER
No waiver or consent, whether express or implied, to any breach of this
document by any party is to be construed as a consent or waiver to any
other breach.
10.5 OPERATION OF THIS DOCUMENT
(a) This document contains the entire agreement between the
parties about its subject matter. Any previous understanding,
agreement, representation or warranty relating to that subject
matter is replaced by this document and has no further effect.
14.
(b) Any right that a person may have under this document is in
addition to, and does not replace or limit, loss any other
right that the person may have.
(c) 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.
10.6 COUNTERPARTS
This document may be executed in counterparts.
10.7 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.
15.
________________________________________________________________________________
EXECUTED as a deed.
SIGNED, SEALED and DELIVERED by
THE HONOURABLE XXXXXX
XXXXXXX MLC in the presence of: _______________________________
Signature of party
_____________________________
Signature of witness
_____________________________
Name
THE COMMON SEAL of THE )
WESTERN AUSTRALIAN
GOVERNMENT RAILWAYS )
COMMISSION
)
was hereunto affixed in the
presence of: )
) ................................
) Commissioner
................................
Secretary
SIGNED, SEALED and DELIVERED by
THE HONOURABLE XXXXXXX
FAIRFAX COURT in the presence of: _______________________________
Signature of party
_____________________________
Signature of witness
_____________________________
Name
16.
________________________________________________________________________________
SIGNED, SEALED and DELIVERED for
WESTNET STANDARDGAUGE PTY
LTD under power of attorney in
the presence of: _______________________________
Signature of attorney
_____________________________ _______________________________
Signature of witness Name
_____________________________ _______________________________
Name Date of power of attorney
SIGNED, SEALED and DELIVERED for
WESTNET NARROWGAUGE PTY LTD
under power of attorney in the presence of: _______________________________
Signature of attorney
_____________________________ _______________________________
Signature of witness Name
_____________________________ _______________________________
Name Date of power of attorney
SIGNED, SEALED and DELIVERED for
AUSTRALIA WESTERN RAILROAD PTY LTD
under power of attorney in the presence of: _______________________________
Signature of attorney
_____________________________ _______________________________
Signature of witness Name
_____________________________ _______________________________
Name Date of power of attorney
17.
________________________________________________________________________________
SIGNED, SEALED and DELIVERED for
AUSTRALIAN RAILROAD GROUP PTY
LTD under power of attorney in the
presence of: _______________________________
Signature of attorney
_____________________________ _______________________________
Signature of witness Name
_____________________________ _______________________________
Name Date of power of attorney
SIGNED, SEALED and DELIVERED for
ANZ CAPEL COURT LIMITED under
power of attorney in the presence of: _______________________________
Signature of attorney
_____________________________ _______________________________
Signature of witness Name
_____________________________ _______________________________
Name Date of power of attorney
18.
SCHEDULE 1
SECURITY
The Fixed and Floating Charge and Equitable Mortgage of Shares dated on or about
the date of this document and made between the Purchasing Parties and others and
the Security Trustee
19.
SCHEDULE 2
PROJECT DOCUMENTS
1. The Leases
2. The Sale Agreement
3. The Ancillary Agreements
20.
