Exhibit 99.1
DATED 25 October 2000
------------------------
WESFARMERS RAILROAD HOLDINGS PTY LTD
ACN 008 705 986
(WRH)
WESFARMERS LIMITED
ACN 008 984 049
(Wesfarmers)
GWI HOLDINGS PTY LTD
ACN 094 819 806
(GWH)
GENESEE & WYOMING INC
(GWI)
- AND -
GENESEE & WYOMING AUSTRALIA PTY LTD
ACN 080 579 308
(Company)
WESTRAIL FREIGHT
BIDDING AND SHARE SUBSCRIPTION AGREEMENT
XXXXXXX XXXXXXXX
Xxxxxxxxxx
Xxxxx 00, XX0 Xxxxxxxx
000 Xx Xxxxxx'x Xxxxxxx
Xxxxx 0000
Xxxxxxx Xxxxxxxxx
Telephone: 00 0 0000 0000
Facsimile: 61 8 9321 2788
E-mail: xxx@xxxxxxxxxxxxxxx.xxx.xx
Ref: AGT:AC:2000365
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION . . . . . . . . . . . . . . . . . . . . 1
2. ISSUE OF SHARES AND MAKING OF LOANS . . . . . . . . . . . . . . . . . 5
3. FUNDING OF THE BID AND ASSOCIATED EXPENSES AND LIABILITIES . . . . . 6
4. SHAREHOLDERS AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . 8
5. DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6. CHANGE OF NAME OF COMPANY AND INCORPORATION OF NEW COMPANIES . . . . 8
7. GENERAL WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . 9
8. GWH AND GWI WARRANTIES AND INDEMNITIES . . . . . . . . . . . . . . . 9
9. SPECIFIC INDEMNITIES, WARRANTIES AND COVENANTS . . . . . . . . . . . 10
10. SPECIAL RIGHTS OF GWI IF ASD PROJECT PROCEEDS . . . .. . . . . . . . . 10
11. SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
12. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . 10
SCHEDULE 1 - NUMBER OF GWH SUBSCRIPTION SHARES
SCHEDULE 2 - STRUCTURAL CHART
SCHEDULE 3 - NUMBER OF WRH SUBSCRIPTION SHARES
SCHEDULE 4 - WARRANTIES
SCHEDULE 5 - CONTRACTS & LITIGATION
SCHEDULE 6 - CASH FLOW FORMAT
EXECUTION
ANNEXURE
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BIDDING AND SHARE SUBSCRIPTION AGREEMENT
THIS AGREEMENT is made the 25th day of October 2000
AMONG
1. WESFARMERS RAILROAD HOLDINGS PTY LTD (ACN 008 705 986) of Xxxxx 00,
Xxxxxxxxxx Xxxxx, 00 Xxx Xxxxxxxxx, Xxxxx, Xxxxxxx Xxxxxxxxx (WRH)
2. WESFARMERS LIMITED (ACN 008 984 049) also of Xxxxx 00, Xxxxxxxxxx Xxxxx,
00 Xxx Xxxxxxxxx, Xxxxx, Xxxxxxx Xxxxxxxxx (Wesfarmers)
3. GWI HOLDINGS PTY LTD (ACN 094 819 806) of care of Xxxxxxx Xxxxxxxx of
Xxxxx 00, 000 Xx Xxxxxxx Xxxxxxx, Xxxxx, Xxxxxxx Xxxxxxxxx (GWH)
4. GENESEE & WYOMING INC, a Delaware corporation with its principal place
of business at 00 Xxxxx Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx, Xxxxxx
Xxxxxx of America (GWI)
AND
5. GENESEE & WYOMING AUSTRALIA PTY LTD (ACN 080 579 308) of Xxxxx 0 XXX
Xxxxxxxx, 000 Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxx Xxxxxxxxx (Company)
RECITALS
A. GWH is or will be entitled to be the sole shareholder of the Company.
B. The Company has an issued capital of 1 ordinary share and 5,852,230
redeemable preference shares.
C. WRH has agreed to subscribe for shares in and to make the Loan to the
Company on the terms and conditions set out in this Agreement.
OPERATIVE PROVISIONS
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement unless the contrary intention appears:
Accounts means the audited accounts of the Company and its subsidiaries
as at 31 December 1999.
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Allotment Date means the date and time immediately preceding the date
and time that Completion takes place in accordance with the Sale
Agreement.
ASD Project means the construction and operation of a new railway from
Xxxxx Springs to Darwin, the upgrade and operation of the existing
railway from Tarcoola to Xxxxx Springs and the construction and
operation of a container freight terminal at the Port of Darwin by a
joint venture known as the Asia Pacific Transport Consortium of which a
subsidiary of the Company is a member.
Bid means the final binding offer by the Company for the purchase and
lease of the Westrail Freight Business.
Bid Liabilities means any Loss or Claim suffered, incurred or brought
against WRH, Wesfarmers, GWH, GWI or the Company in connection with:
(a) the Bid, irrespective of whether or not the Bid is successful; and
(b) the entry into and performance of the Bid Transaction Agreements,
including any consideration that is furnished or liability arising
under the Bid Transaction Agreements,
but does not include the Excluded Liabilities.
Bid Transaction Agreements means each of the agreements that will be
entered into by the Company, any of its subsidiaries, GWH, GWI, WRH,
Wesfarmers, the Government of Western Australia, its instrumentalities
and others in relation to the acquisition of the Westrail Freight
Business and the associated railroad infrastructure in the event that
the Bid is successful, including:
(a) the Agreement for Sale of Business to be made between the Company,
The Honourable Xxxxxx Xxxxxxx MLC, The Western Australian
Government Railways Commission and others;
(b) the Railway Corridor Land Use Agreement and Railway Infrastructure
Lease to be made between the Company, one or more of its
subsidiaries, The Western Australian Government Railways Commission
and others; and
(c) any guarantees provided by the Company, or in relation to the
acquisition of the Westrail Freight Business and the associated
railway infrastructure.
Business Day means a day on which trading banks are open for general
business in Perth and Adelaide, not being a Saturday or a Sunday.
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Claim includes any claim, action, demand, proceeding or judgment however
arising whether at law or in equity, statute, in tort for negligence,
contract or otherwise.
Completion Accounts means accounts of the Company and its Subsidiaries
compiled on the same basis as the Accounts as at the time immediately
preceding the allotment of Shares to WHR in accordance with this
Agreement.
Commencement Date means the date upon which the Company has been advised
by the State of Western Australia that its bid for the Westrail Freight
Business has been successful.
Constitution means the constitution of the Company.
Corporations Law means the Corporations Law in force in Western
Australia.
Excluded Liabilities means:
(a) the costs of consultants engaged directly by the Company, GWH, GWI,
WRH or Wesfarmers (as the case requires) in connection with the
Bid;
(b) administrative expenses incurred by the Company, GWI, GWH, WRH or
Wesfarmers in connection with the Bid; and
(c) travel, accommodation and similar expenses incurred by the Company,
GWH, GWI, WRH or Wesfarmers in connection with the Bid.
Loss includes any damage, loss, cost, expense or liability (including
legal expenses on a solicitor/client basis) whether direct, indirect or
consequential, present or future, fixed or unascertained, actual or
contingent, under statute, in tort for negligence, contract or
otherwise.
Minister's Lien means the fixed charge granted by Australia Southern
Railroad Pty Ltd in favour of the Minister of Transport and Urban
Planning for the State of South Australia pursuant to a deed of
agreement to lease and charge dated 7 November 1997 and registered with
the Australian Securities and Investments Commission on 22 December
1997.
MOU means the memorandum of understanding dated 13 September 2000
between Wesfarmers and the Company.
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Net Tangible Assets means the amount recorded as shareholders equity in
the Completion Accounts less any amount recorded as intangible assets.
Related Body Corporate has the meaning given in the Corporations Law.
Share means ordinary and preference shares in the capital of the
Company.
Sale Agreement means Agreement for Sale of Business between the
Honourable Xxxxxx Xxxxxxx MLC, Minister for Transport exercising powers
under Section 13 and Section 44 of the Rail Freight System Xxx 0000
(WA), the Western Australian Government Railways Commission, the
Honourable Xxxxxxx Fairfax Court MLA, Treasurer, exercising power under
Section 20 of the Rail Freight System Act 2000 (WA), Westrail Freight
Employment Pty Ltd ACN 087 891 601, Genesee & Wyoming Australia Pty Ltd
ACN 080 579 308, WestNet StandardGauge Pty Ltd, WestNet NarrowGauge Pty
Ltd, Australian Western Railroad Pty Ltd, AWR Lease Co Pty Ltd (the last
four companies to be incorporated or acquired prior to the execution of
the Sale Agreement).
Share Certificate means a certificate issued by the Company evidencing
that the person named in the certificate is the holder of the number of
Shares shown on the certificate .
Shareholders Agreement means the shareholders agreement between the
parties contained in annexure 1.
Warranties means the statements contained in Schedule 4 to this
Agreement.
Westrail Freight Business means the business of carrying goods by rail
and road carried on by the Western Australia Government Railways
Commission and the provision of access to third parties to the rail
corridor land as defined in the Rail Freight System Act 2000 of Western
Australia and leased railway infrastructure and any expansions
modifications or variations thereto carried out from time to time.
Interpretation
1.2 In this Agreement unless the contrary intention appears:
(a) a reference to a clause, Schedule or annexure is a reference to a
clause of or schedule or annexure to this Agreement and references
to this Agreement include any recital, schedule or annexure;
(b) a reference to this Agreement or another instrument includes any
variation or replacement of either of them;
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(c) a reference to a statute, ordinance, code or other law includes
regulations and other instruments under it and consolidations,
amendments, re-enactments or replacements of any of them;
(d) the singular includes the plural, the plural includes the singular
and any gender includes each other gender;
(e) the word person includes a firm, a body corporate, an
unincorporated association or an authority;
(f) a reference to a person includes that person's executors,
administrators, successors, substitutes (including persons taking
by novation) and permitted assigns;
(g) an agreement, representation or warranty in favour of two or more
persons is for the benefit of them jointly and severally;
(h) an agreement, representation or warranty on the part of two or more
persons binds them jointly and severally;
(i) if a period of time is specified and dates from a given day or the
day of an act or event, it is to be calculated exclusive of that
day;
(j) a day means the period of time commencing at midnight and ending 24
hours later;
(k) a month means a calendar month;
(l) a reference to currency is a reference to Australian currency;
(m) the president of a body or authority means the president or other
senior officer for the time being and includes any person acting in
that capacity;
(n) including is deemed to be followed by the words, but not limited
to; and
(o) party or parties means a party or parties to this Agreement.
2. ISSUE OF SHARES AND MAKING OF LOANS
2.1 WRH agrees to subscribe for and the Company agrees to allot the
number and classes of Shares set out in Schedule 3 ("WRH
Subscription Shares") for the subscription price set out in
Schedule 3 ("WRH Subscription Price").
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2.2 On the Allotment Date, WRH must:
(a) give to the Company a completed and signed application form in
respect of the WRH Subscription Shares; and
(b) procure that the amount of the WRH Subscription Price is
transferred in immediately available funds into the Company's
nominated bank account.
2.3 Immediately after receipt by the Company of confirmation from the
Company's bankers that the amount of WRH Subscription Price has
been transferred in immediately available funds into the Company's
nominated bank account,
the Company must:
(i) give WRH certified copies of minutes of a board meeting at
which the directors of the Company resolve to allot the
Subscription Shares to WRH;
(ii) record WRH in its register of members as being the holder of
the Subscription Shares;
(iii) give WRH Share Certificates in respect of the
Subscription Shares; and
(iv) appoint the three directors nominated by WRH as directors of
the Company.
2.4 For the avoidance of doubt, the parties acknowledge that WRH's
right to subscribe for shares under this Agreement will only
arise if the Bid is successful.
3. FUNDING OF THE BID AND ASSOCIATED EXPENSES AND LIABILITIES
General principle
3.1 For so long as they are the only holders of Shares in the Company,
GWH and WRH agree to bear the Bid Liabilities in equal shares.
This agreement is given by each party for the benefit of the
others, but in particular:
(a) by WRH for the benefit of GWI; and
(b) by GWH for the benefit of Wesfarmers.
If the Bid is successful
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3.2 GWH and GWI will simultaneously with the steps set out in Clause
2.3 on the Allotment Date cause the Company and its subsidiaries to
pay all moneys secured by and cause to be satisfied and discharged
all mortgages charges liens pledges or other securities of any kind
given by or existing in respect of the Company and its subsidiaries
immediately prior to the Allotment Date (save and except the
Minister's Lien) and that the total debt owed by the Company to GWI
and any company associated with it shall not exceed $15 million.
3.3 GWH shall subscribe for and the Company shall allot the number and
classes of Shares set out in Schedule 1 for the subscription price
set out in Schedule 1.
3.4 If the Bid is successful, the parties expect that the Company will
be in a position to satisfy the Bid Liabilities on its own account,
and that GWH and WRH will satisfy their respective obligations to
bear the Bid Liabilities in equal shares through their
shareholdings in and loans to the Company. To the extent that the
Company requires further funds to satisfy the Bid Liabilities, GWH
and WRH must:
(a) cause the Company to borrow those further funds; or
(b) subscribe for further equity in the Company to meet the
requirement for the further funds,
in each case, as promptly as practicable, from time to time
and having regard to their agreement to bear the Bid
Liabilities in equal shares though their shareholding in the
Company and debt funding raised by the Company.
If the Bid is unsuccessful
3.5 If the Bid is unsuccessful, WRH agrees to pay to the Company or to
GWH (at GWH's option) and GWH agrees to pay to the Company or to
WRH such sum or sums as might reasonably be required from time to
time to satisfy WRH and GWH's respective obligation to bear half of
the Bid Liabilities.
Indemnity by WRH and Wesfarmers
3.6 WRH and Wesfarmers each unconditionally and irrevocably indemnify
and hold the Company and GWH harmless against any Loss suffered as
a result of any breach by WRH of the obligations imposed on it
under this Agreement. Wesfarmers acknowledges having received
valuable consideration for the grant of the indemnity.
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3.7 The liability of WRH and Wesfarmers under this indemnity is not
affected by anything which might release or exonerate or otherwise
affect it at law or in equity, including one or more of the
following:
(a) GWH or the Company granting time or other indulgence to,
compromising with or partially releasing any person in any
way;
(b) laches, acquiescence, delay, acts or omissions on the part of
any person;
(c) any variation or novation of a right of GWH or the Company;
(d) any alteration of this Agreement, the Bid Transaction
Agreements or any agreement entered into in the performance of
this Agreement or the Bid Transaction Agreements, with or
without the consent of WRH or Wesfarmers; or
(e) the invalidity or unenforceability of an obligation or
liability of a person other than WRH or Wesfarmers.
3.8 This indemnity is a continuing indemnity and is not discharged by
any one payment. It is not discharged on the Commencement Date or
the Allotment Date.
3.9 It is not necessary for GWH or the Company to make a payment or
incur an expense before enforcing this right of indemnity.
Indemnity by GWH and GWI
3.10 GWH and GWI each unconditionally and irrevocably indemnify and hold
the Company and WRH harmless against any Loss suffered as a result
of any breach by GWH of the obligations imposed on it under this
Agreement. GWH acknowledges having received valuable consideration
for the grant of the indemnity.
3.11 The liability of GWH and GWI under this indemnity is not affected
by anything which might release or exonerate or otherwise affect it
at law or in equity, including one or more of the following:
(a) WRH or the Company granting time or other indulgence to,
compromising with or partially releasing any person in any way;
(b) laches, acquiescence, delay, acts or omissions on the part of
any person;
(c) any variation or novation of a right of WRH or the Company;
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(d) any alteration of this Agreement, the Bid Transaction Agreements
or any agreement entered into in the performance of this
Agreement or the Bid Transaction Agreements, with or without
the consent of GWH or GWI; or
(e) the invalidity or unenforceability of an obligation or liability
of a person other than GWH or GWI.
3.12 This indemnity is a continuing indemnity and is not discharged by
any one payment. It is not discharged on the Commencement Date or
the Allotment Date.
3.13 It is not necessary for WRH or the Company to make a payment or
incur an expense before enforcing this right of indemnity:
4. SHAREHOLDERS AGREEMENT
4.1 Upon the Allotment Date the Shareholders Agreement will become
binding on the parties without further formality.
4.2 The parties agree to execute promptly original copies of the
Shareholders Agreement, although the Shareholders Agreement will be
binding on the parties in accordance with clause 4.1 even if it is
not properly executed.
4.3 The parties acknowledge that GWH is the Shareholder for the
purposes of the Shareholders Agreement.
5. DIRECTORS
5.1 From the Allotment Date WRH may appoint one or more directors to
the board of the Company in accordance with the Constitution and
the Shareholders Agreement.
6. CHANGE OF NAME OF COMPANY AND INCORPORATION OF NEW COMPANIES
The Company will:
(a) change its name to Australian Railroad Group Pty Ltd (or such
other name as is agreed by GWH and WRH);
(b) cause to be incorporated or acquired by the Company on
Commencement prior to its execution of the Sale Agreement, all
corporate entities required in relation to the Sale Agreement,
the Lease Agreement and the US Cross Border Lease Substitution
Deed, Operating Agreement and Sub-Sublease and otherwise as
set out in the structure chart attached as Schedule 2.
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7. GENERAL WARRANTIES
7.1 Each party warrants to each other party, at the date of this
Agreement, that:
(a) it has the power and authority to enter into and perform its
obligations under this Agreement;
(b) the execution, delivery and performance of this Agreement by
it will constitute legal, valid and binding obligations of it,
enforceable in accordance with its terms;
(c) no meeting has been convened, resolution proposed, petition
presented or order made for the winding up of it and no
receiver, receiver and manager, provisional liquidator,
liquidator or other officer of a court has been appointed in
relation to any of its assets and no mortgagee has taken or
attempted or indicated in any manner any intention to take
possession of any of its assets; and
(d) the execution, delivery and performance of this Agreement will
not violate:
(i) any legislation or rule of law or regulation,
authorisation, consent or any order or decree of any
governmental authority;
(ii) its constituent documents or any legislation, rules or
other document constituting that party or governing its
activities; or
(iii) any instrument to which it is a party or which is
binding on it or any of its assets including without
limitation in the case of the Company any charges
over the assets and undertakings of the Company; and
will not result in the creation or imposition of any
encumbrance or restriction of any nature on any of its
assets.
8. GWH AND GWI WARRANTIES AND INDEMNITIES
8.1 GWH and GWI represent and warrant to WRH that each of the
statements set out in Schedule 4 to this Agreement will be true and
correct in all material respects on the Allotment Date as if made
on that date.
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8.2 Subject to this clause 8, GWH and GWI indemnify and will keep
indemnified WRH from any Claim or damage, loss, cost, expense or
liability (including legal expenses on a solicitor/client basis)
under statute, in tort for negligence, contract or otherwise but
excluding indirect or consequential loss, loss of bargain, profits,
expectation or opportunity, brought against, incurred or suffered
by WRH as a result of any inaccuracy in or breach of the
Warranties.
8.3 The indemnity contained in clause 8.2 is a continuing obligation
separate and independent from the other obligations of the parties
and will survive the termination, completion or expiration of this
Agreement (although, in accordance with clause 8.8(c), the
indemnity ceases to have effect on the date which is 24 months
after the Commencement Date).
8.4 Subject to any law to the contrary and except as provided in the
Warranties or in this Agreement, all terms, conditions, warranties
and statements, whether express, implied, written, oral,
collateral, statutory or otherwise, are excluded and GWH disclaims
all liability in relation to these to the maximum extent permitted
by law.
8.5 WRH acknowledges that, in entering into this Agreement it does not
rely on any statement, representation, warranty, condition or other
conduct which may have been made by GWH or the Company or any
person purporting to act on behalf of GWH or the Company, except as
set out in this Agreement or the Warranties. WRH agrees not to
make and waives any right it may have to make any claim against GWH
or any of its officers, employees, agents or advisers under section
52 of the Trade Practices Xxx 0000, or the corresponding provision
of any state or territory enactment, for any statement or
representation made concerning the Company.
8.6 If a claim is made by a person against WRH which, if satisfied by
WRH, would result in a claim against GWH under the Warranties:
(a) WRH must immediately give notice of the claim to GWH; and
(b) at the expense and direction of GWH, WRH must take such
reasonable action (including legal proceedings) as GWH may
require to avoid, dispute, defend, appeal, settle or
compromise the claim and any adjudication of it.
8.7 WRH acknowledges that it has had the opportunity to make and has
made reasonable enquiries in relation to all matters material to it
which are not covered by the Warranties and has satisfied itself in
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relation to the matters arising from those investigations. In
particular, WRH acknowledges having received copies of the
documents and the information referred to in Schedule 5.
8.8 WRH may only make a claim against GWH under this clause 8 if:
(a) the aggregate amount of the claim is A$75,000 or more;
(b) the amount of the claim, when aggregated with all previous
claims made under this clause 8, does not exceed 115% WRH
Subscription Price;
(c) full particulars of the claim are given to GWH in writing
within:
(i) 21 Business Days of the date on which WRH first becomes
aware of the claim; and
(ii) 24 months after the Commencement Date.
9. SPECIFIC INDEMNITIES, WARRANTIES AND COVENANTS
Specific Indemnities
9.1 In addition to and without limiting any other indemnities given by
GWH and GWI under this Agreement GWH and GWI indemnify and will
keep indemnified WRH, the Company and all subsidiaries of the
Company from:
(a) any Claim or Loss brought against, incurred or suffered by
WRH, the Company or any of its subsidiaries:
(i) in connection with the discharge or release of the
Company from any future obligations (including payment),
in respect of the Company's current executive's deferred
compensation scheme;
(ii) arising from the negotiation settlement or other
resolution of the disputes listed in Schedule 5; and
(iii) to the extent that it is not provided for in the
Completion Accounts any payment of a deductible
under any insurance claim for public liability
arising in respect of any event occurrence or
circumstance prior to Allotment Date;
(b) any costs arising as a consequence of the ASD Project not
proceeding. The ASD Project will unless otherwise agreed
between the parties to this Agreement be deemed to be not
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proceeding (without limiting any other facts or circumstances)
if:
(i) financing of the Asia Pacific Transport Consortium is not
completed by 31 March 2001; or
(ii) execution and delivery of the relevant documents in the
form submitted to Finlaysons, solicitors of Adelaide,
South Australia ("Finlaysons"), after the conduct of due
diligence by them, has not been completed on or before 30
April 2001.
Specific Warranties
9.2 GWH and GWI warrant to WRH, Wesfarmers and the Company that as at
the Allotment Date:
(a) the Net Tangible Assets of the Company will not be less than
$30,500,000;
(b) the issue of Shares and the acceptance of the loan by the
Company in accordance with this Agreement will not constitute
an event of default under or give rise to any rights or
consequences adverse to the Company in respect of the Ground
Lease or the Deed of Agreement to Lease dated 7 November 1997
made between the Minister of Transport and Urban Planning for
the State of South Australia, Australia Southern Railroad Pty
Ltd and GWI.
Specific Mutual Covenants
9.3 Each of the Parties hereto other than the Company covenants with
the other of them that:
(a) if the Net Tangible Assets of the Company shall be less than
$30,500,000 GWI shall cause GWH to subscribe for one
redeemable preference share at a subscription price equal to
the difference between $30,500,000 and the value of the Net
Tangible Assets of the Company and WRH shall subscribe for one
redeemable preference share for $1.00; and
(b) they will cause the Company to follow a dividend policy to pay
all available dividends to shareholders to the maximum
permissible level of available franking credits subject to any
requirements of the Company's financiers.
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9.4 GWI and GWH covenant with WRH that forthwith after the Commencement
Date and in any event prior to the Allotment Date GWI will transfer
to GWH and GWH will accept such transfer to it of all issued Shares
in the Company.
10. SPECIAL RIGHTS OF GWI IF ASD PROJECT PROCEEDS
10.1 ASD Project Proceeds
If financing of the Asia Pacific Transport Consortium is completed
by 31 March 2001 and execution and delivery of the relevant
documents in the form submitted to Finlaysons after the conduct of
due diligence by them is completed on or before 30 April 2001, then
the ASD Project will be deemed to proceed and the Company will give
notice in writing to each shareholder that the ASD Project is
proceeding whereupon GWH shall have the option to subscribe for and
be allotted 10,000,000 ordinary shares in the Company for a total
price of $1.00, such option to be exercised by notice in writing to
the Company prior to the expiration of 10 Business Days from the
date notice is given by the Company to GWH in accordance with this
clause. If GWH exercises its option, then the Company shall give
notice in writing to WRH whereupon WRH shall be obliged, as soon as
possible, to subscribe for 10,000,000 ordinary shares for a total
subscription price of $17.5 million being the net present value of
the ASD Project at a 12% discount rate as determined by the cash
flow analysis set out in Schedule 6.
10.2 ASD Project Proceeds on Different Basis
If the financing of the Asia Pacific Transport Consortium is
completed by 31 March 2001 but on or before 30 April 2001,
documents on terms materially different to those submitted to
Finlaysons after the conduct of due diligence by them are delivered
and executed, then the Company will give notice in writing to each
shareholder that the ASD Project is proceeding on a different basis
whereupon GWH shall have the option to subscribe for and be
allotted 10,000,000 ordinary shares in the Company for a total
price of $1.00, such option to be exercised by notice in writing to
the Company prior to the expiration of 10 Business Days from the
date notice is given by the Company to GWH in accordance with this
clause. If GWH exercises its option, then the Company shall give
notice in writing to WRH whereupon WRH shall be obliged, as soon as
possible, to subscribe for 10,000,000 ordinary shares for the
subscription price determined in accordance with the formula set
out below:
IP = (V+TV)
------
S
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IP is the issue price per share of the ordinary Shares to be
issued;
V is the net present value of future, nominal, after-tax cash
flows generated by ASD Project, discounted at 12.0% prepared
and calculated in accordance with the format set out in
Schedule 6;
TV is the net present value of an amount equal to 5.5 times 2015
nominal cash flows generated by ASD Project, discounted at
12.0% prepared and calculated in accordance with the format
set out in Schedule 6;
S is the number of ordinary shares subscribed for.
11. SUBORDINATION
11.1 WRH and GWH agree that on the Allotment Date, they will each make
subordinated loans to the Company in the sum of $15 million on the
terms set out in clause 11.3.
11.2 The subordinated loans by WRH and GWH are referred to in this
agreement as the WRH Loan and the GWH Loan respectively, and
together the subordinated loans are referred to as the Subordinated
Loans
11.3 The Subordinated Loans will be made on the following terms:
(a) the Subordinated Loans will not bear interest; and
(b) neither of the Subordinated Loans is repayable other than with
the agreement of both WRH and GWH, and other than as permitted
under:
(1) the Australian Railroad Group Senior Facilities Term
Sheet under which Australia and New Zealand Banking Group
Limited and Bank of America NA (Australian Branch) agree
to provide certain senior banking facilities to the
Company (including clause 20.2.11 of that Term Sheet);
and
(2) any other documentation entered into with those banks and
others in substitution for that Term Sheet.
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11.4 The procedures in relation to timing and manner of payment set out
in clauses 2.2 and 2.3 in relation to the WRH Subscription Price
apply equally to the timing and manner of payment of the WRH Loan.
11.5 The parties acknowledge that the amount of the GWH Loan has already
been provided to the Company, and that from the time the WRH Loan
is provided to the Company the terms and provisions set out in
clause 11.3 will apply to the GWH Loan in all respects.
12. GENERAL PROVISIONS
Notices
12.1 A notice, approval or other communication to be given under this
Agreement:
(a) is to be in writing signed by the party giving it or that party's
solicitor, counsel or agent;
(b) may be left at or posted to the address of the party to whom it is
given, or sent by facsimile transmission to that party's facsimile
number, in each case as stated below:
WRH's address Xxxxx 00, Xxxxxxxxxx Xxxxx
00 Xxx Xxxxxxxxx
Perth 6000
Western Australia
Facsimile number (00) 0000 0000
Wesfarmers' address Xxxxx 00, Xxxxxxxxxx Xxxxx
00 Xxx Xxxxxxxxx
Perth 6000
Western Australia
Facsimile number (00) 0000 0000
GWI's address 00 Xxxxx Xxxxx Xxxx
Xxxxxxxxx
Xxxxxxxxxxx 00000
Xxxxxx Xxxxxx of America
Facsimile number 0-(000)-000-0000
GWH's address care of Xxxxxxx Xxxxxxxx
Xxxxx 00
000 Xx Xxxxxx'x Xxxxxxx
Xxxxx 0000
Xxxxxxx Xxxxxxxxx
Facsimile: (00) 0000 0000
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Company's address care of Xxxxxxx Xxxxxxxx
Xxxxx 00
000 Xx Xxxxxx'x Xxxxxxx
Xxxxx 0000
Xxxxxxx Xxxxxxxxx
Facsimile number (00) 0000 0000
(c) takes effect from the time it is received; and is taken to have
been received as follows:
(i) if left at an address, at the time it is left;
(ii) if posted, on the second (fifth, if posted to or from a place
outside of Australia) Business Day after posting; and
(iii) if sent by facsimile, on the next Business Day after it
is sent unless the sender is aware that the transmission
is defective.
Costs and stamp duty
12.2 Each party agrees to bear its own legal and other costs and
expenses in connection with the preparation, signature and
completion of this Agreement and of other related documentation,
except stamp duty.
The Company is to pay any stamp duty, including any fines,
penalties and interest, payable in connection with this Agreement.
Waiver and Variation
12.3 A provision of or a right created under this Agreement may not be:
(a) waived, except in writing signed by the party granting the
waiver; or
(b) varied, except in writing signed by all parties.
Remedies cumulative
12.4 The rights, powers and remedies provided in this Agreement are
cumulative with and not exclusive of the rights, powers and
remedies provided by law independently of this Agreement.
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Entire agreement
12.5 This Agreement and the Shareholders Agreement constitute the
entire agreement between the parties about their subject
matter and any previous agreements, (including the MOU)
understandings and negotiations on that subject matter cease
to have effect.
Severance
12.6 If any provision of this Agreement or the application of that
provision to any person or circumstance is or becomes invalid or
unenforceable, then the remaining provisions of this Agreement are
not affected and are valid and enforceable to the fullest extent
permitted by law. This clause has no effect if the severance
alters the basic nature of this Agreement.
Governing law and jurisdiction
12.7 This Agreement is governed by the law in force in the State of
Western Australia and each party irrevocably submits to the
non-exclusive jurisdiction of the courts of that State.
Exercise of rights
12.8 A party may exercise a right, power or remedy (in this clause,
collectively a right) at its discretion. The exercise of a right
does not prevent the further exercise of that right or the exercise
of any other right. Failure to exercise a right is not to be taken
as a waiver of that right.
Approvals and Consents
12.9 Where this Agreement provides for a party to give its approval or
consent, the party may give it conditionally or unconditionally or
withhold it, unless this Agreement otherwise provides.
No Merger
12.10 The warranties, undertakings and indemnities in this Agreement
do not merge on the Commencement Date of the Allotment Date.
Payments
12.11 A party liable to make a payment under this Agreement is to
make the payment without set off, counterclaim or deduction.
The party to whom a payment is to be made need not make a
demand for payment unless a demand is expressly required.
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Further assurance
12.12 Each party is to do, at its own expense, on the request of the
other party, everything reasonable necessary to give effect to
this Agreement and the transactions contemplated by it.
Publicity
12.13 A party may not make press or other announcements relating to
this Agreement or the transactions for which it provides
without the approval of the other party, unless that
announcement is required by law or a stock exchange.
Assignment
12.14 Rights arising out of or under this Agreement are not
assignable by any Party without the prior written consent of
the other parties.
Amendment
12.15 No amendment or variation of this Agreement is valid or
binding on a Party unless made in writing and executed by all
parties.
Counterparts
12.16 This Agreement may be executed in a number of counterparts.
All counterparts together will be taken to constitute one
instrument.
EXECUTED AS AN AGREEMENT
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SIGNED BY ________________
For and on behalf of
WESFARMERS RAILROAD
HOLDINGS PTY LTD
ACN 008 705 986
In the presence of:
/s/ Xxxxx Xxxxxx /s/ Xxxx Xxxxxx Xxxxxxxx
-------------------------------- ---------------------------------
Witness Signature of authorised person
Xxxxx Xxxxxx Company Secretary
-------------------------------- --------------------------------
Name of witness (print) Office held
Xxxx Xxxxxx Xxxxxxxx
---------------------------------
Name of authorised person
(block letters)
EXECUTED by
WESFARMERS LIMITED
ACN 008 984 049
by the party's attorney pursuant to Power of
Attorney dated 24 October 2000 who states
that no notice of revocation of the power of
attorney has been received in the presence of:
/s/ Xxxxx Xxxxxx /s/ Xxxx X. Xxxxxxxx
-------------------------------- ---------------------------------
Witness Attorney
Xxxxx Xxxxxx Xxxx X. Xxxxxxxx
-------------------------------- ---------------------------------
Name of Witness (print) Name of Attorney (print)
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THE COMMON SEAL of GWI HOLDINGS
PTY LTD ACN 094 819 806 is affixed in
accordance with its constitution in
the presence of:
/s/ Xxxxxxx X. Xxxxxx /s/ Ian XX Xxxxxxxx
----------------------------- --------------------------------
Signature of authorised person Signature of authorised person
Director Director
----------------------------- ---------------------------------
Office held Office held
Xxxxxxx X. Xxxxxx Xxx XX Xxxxxxxx
------------------------------ --------------------------------
Name of authorised person Name of authorised person
(block letters) (block letters)
SIGNED by
for and on behalf of
GENESEE & WYOMING INC
in the presence of:
/s/ Xxxxxxx X. Xxxxxx
-------------------------------
Signature of authorised person
Senior Vice President
-------------------------------
Office Held
Xxxxxxx X. Xxxxxx
-------------------------------
Name of authorised person
(block letters)
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THE COMMON SEAL of GENESEE &
WYOMING AUSTRALIA PTY LTD ACN
080 579 308 is affixed in accordance with
its constitution in the presence of:
/s/ Xxxxxxx X. Xxxxxx /s/ Ian XX Xxxxxxxx
---------------------------------- ---------------------------------
Signature of authorised person Signature of authorised person
Senior Vice President Secretary
---------------------------------- ---------------------------------
Office held Office held
Xxxxxxx X. Xxxxxx Xxx XX Xxxxxxxx
---------------------------------- --------------------------------
Name of authorised person Name of authorised person
(block letters) (block letters)
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