Exhibit 2.1
COMMONWEALTH OF AUSTRALIA
- AND-
GENESEE & WYOMING AUSTRALIA PTY LIMITED
(ACN 079 444 296)
- AND -
GENESEE & WYOMING INC
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AGREEMENT
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FOR THE SALE AND PURCHASE OF SHARES IN
SA RAIL PTY LIMITED
(ACN 077 946 340)
[GRAPHIC OMITTED]
SHARE SALE AGREEMENT
CONTENTS
NO. PAGE
1. INTERPRETATION.............................................................................1
1.1 Definitions.......................................................................1
1.2 General...........................................................................7
1.3 Headings..........................................................................8
2. AGREEMENT TO SELL AND BUY THE SHARES.......................................................9
2.1 Sale and Purchase.................................................................9
2.2 Title Property and Risk...........................................................9
3. DEPOSIT....................................................................................9
3.1 Payment of Deposit................................................................9
3.2 Investment of Deposit.............................................................9
3.3 Vesting of Deposit................................................................9
3.4 Return of Deposit to Purchaser...................................................10
3.5 Application of Deposit on Termination by Commonwealth............................10
3.6 Risk.............................................................................10
4. CONDITIONS................................................................................10
4.1 Conditions Precedent to Completion...............................................10
4.2 Effect of Non-Fulfilment.........................................................10
4.3 Fulfilment by Waiver.............................................................11
4.4 Obligation to Satisfy Conditions.................................................11
4.5 Extent of Obligation to Fulfil Conditions........................................11
5. CONDUCT PENDING COMPLETION................................................................11
5.1 Conduct of Businesses............................................................11
5.2 Completion Contracts.............................................................12
5.3 Material Contract, Commitment or Liability.......................................12
5.4 Operation of Business by AN......................................................12
5.5 Assistance and Access for Purchaser..............................................13
5.6 Leigh Creek Haulage Contract.....................................................13
5.7 Confidentiality..................................................................14
5.8 Termination by the Commonwealth..................................................14
6. COMPLETION................................................................................15
6.1 Time and Place of Completion.....................................................15
6.2 Change to Condition Fulfilment Date..............................................15
6.3 Obligations of Commonwealth at Completion........................................15
6.4 Obligations of Purchaser at Completion...........................................17
6.5 Commonwealth's Obligations Until Registration....................................17
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6.6 Purchaser's Obligation to Register...............................................18
6.7 Default Interest.................................................................18
6.8 Default by Purchaser.............................................................18
6.9 Resale of the Business by the Commonwealth.......................................18
6.10 No Compensation..................................................................18
7. DEBTORS, CREDITORS AND CONTRACTS..........................................................19
7.1 Post-Completion Creditors........................................................19
7.2 Collection of Debts..............................................................19
7.3 Transitional Services Agreement and the Bureau Services Agreement................19
7.4 Purchaser's Indemnity............................................................19
7.5 No Commonwealth Warranty.........................................................19
7.6 Enforcement by AN................................................................20
8. PLANT, TRACK INFRASTRUCTURE AND INVENTORY.................................................20
8.1 Plant, Track Infrastructure and Inventory "As Is"................................20
8.2 Status of Asset Register.........................................................20
8.3 Stocktake........................................................................21
8.4 Active Wagon Stocktake...........................................................22
8.5 No Warranty as to Plant, Track Infrastructure or Inventory.......................23
8.6 Destruction or Damage to Plant...................................................23
9. LEASES AND LICENCES.......................................................................24
9.1 No Warranty As To Certain Matters As to Ground Lease, Parkeston
Licence or Xxxx Township Licence.................................................24
9.2 Land "As is".....................................................................25
9.3 Leasehold Title..................................................................25
9.4 Further Information..............................................................25
10. PARKESTON LAND............................................................................25
10.1 Application of Clause............................................................25
10.2 Subdivision of Land..............................................................25
10.3 Transfer of Parkeston Land.......................................................25
10.4 Purchaser to Assist..............................................................26
10.5 Parkeston Licence................................................................26
11. XXXX TOWNSHIP.............................................................................26
11.1 Application of Clause............................................................26
11.2 Subdivision of Land..............................................................26
11.3 Transfer of Xxxx Township Land...................................................26
11.4 Purchaser to Assist..............................................................26
11.5 Xxxx Township Licence............................................................27
12. ENVIRONMENTAL MATTERS.....................................................................27
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12.1 Disclosure.......................................................................27
12.2 Acknowledgments..................................................................27
12.3 No Warranty as to Environmental Matters or Report................................27
12.4 Remediation Programs.............................................................28
12.5 Notification of Completion of Remediation Program................................28
12.6 Purchaser not to Exacerbate Contamination........................................28
12.7 Release and Indemnity by the Commonwealth........................................29
12.8 Extent of Commonwealth Liability.................................................30
12.9 Release and Indemnity by Purchaser...............................................30
13. HERITAGE MATTERS..........................................................................31
14. EMPLOYEES AND APPRENTICES.................................................................31
14.1 Privacy Act......................................................................31
14.2 Termination of Employees.........................................................32
14.3 Apprentices......................................................................32
15. WARRANTIES................................................................................32
15.1 Commonwealth's Warranties........................................................32
15.2 Disclosures......................................................................32
15.3 Time Bar for Claims..............................................................33
15.4 Minimum Quantum of Claims........................................................33
15.5 Maximum Liability................................................................33
15.6 Purchaser's Warranties...........................................................33
15.7 Purchaser Relies on Own Judgment.................................................34
15.8 Licences and Permits.............................................................34
16. GUARANTEE.................................................................................35
16.1 Definitions......................................................................35
16.2 Guarantee........................................................................35
16.3 Indemnity........................................................................35
16.4 Principal Obligation.............................................................36
16.5 Continuing Guarantee.............................................................36
16.6 No Right of Subrogation..........................................................36
16.7 Winding up of the Purchaser......................................................36
17. RESOLUTION OF DISPUTES....................................................................36
17.1 Parties to use reasonable efforts to resolve disputes............................36
17.2 Dispute notice...................................................................36
17.3 Secretary and Director to resolve dispute........................................37
17.4 Mediation........................................................................37
17.5 Legal proceedings................................................................37
17.6 Disputes over Assets.............................................................37
18. MINIMUM SERVICES..........................................................................38
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18.1 Commitment.......................................................................38
18.2 Covenant to observe Ground Lease.................................................38
19. CAPITAL EXPENDITURE.......................................................................38
19.1 Capital Expenditure..............................................................38
19.2 Capital Expenditure Commitment...................................................38
19.3 Audit of Capital Expenditure Commitment..........................................38
19.4 Deferral of Capital Expenditure..................................................39
19.5 Capital Expenditure Account......................................................39
19.6 Independent Audit................................................................40
20.1 STANDARDISATION OF PINNAROO LINE..........................................................40
21. CONFIDENTIALITY...........................................................................41
21.1 Confidentiality Deed.............................................................41
21.2 Publicity........................................................................41
22. DISCLAIMER................................................................................41
22.1 Disclaimer.......................................................................41
22.2 Quality of Information...........................................................42
22.3 Associated Persons...............................................................44
23. TRANSFER OF OWNERSHIP OF COMMONWEALTH RECORDS.............................................44
23.1 Transfer of Ownership of Commonwealth Records....................................44
23.2 Commonwealth Access to Commonwealth Records......................................44
23.3 Intellectual Property in Commonwealth Records....................................45
24. COSTS AND STAMP DUTY......................................................................45
24.1 Costs Generally..................................................................45
24.2 Stamp Duty Generally.............................................................45
24.3 No Exemption from Duty...........................................................45
25. NOTICES...................................................................................46
25.1 Method of Giving Notices.........................................................46
25.2 Time of Receipt..................................................................46
25.3 Address of Parties...............................................................46
26. GENERAL...................................................................................47
26.1 Time of the Essence..............................................................47
26.2 Amendment........................................................................47
26.3 Waiver...........................................................................48
26.4 Entire agreement.................................................................48
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26.5 Severability.....................................................................48
26.6 Assignment.......................................................................48
26.7 Preservation of Rights...........................................................48
26.8 No Merger........................................................................49
26.9 Further Assurance................................................................49
26.10 Counterparts.....................................................................49
26.11 Attorneys........................................................................49
26.12 Joint and Several Liability of Consortium Members................................50
27. LAW AND JURISDICTION......................................................................50
27.1 Governing Law....................................................................50
27.2 Submission to Jurisdiction.......................................................50
27.3 Process Agent....................................................................50
Schedule
*1 THE SHARES................................................................................51
*2 THE COMPANY...............................................................................52
*3 CONDITIONS PRECEDENT TO COMPLETION........................................................53
*4 DISCLOSURES...............................................................................55
*5 COMMONWEALTH'S WARRANTIES.................................................................58
*6 ASSETS....................................................................................63
*6A SPECIFIED LOCOMOTIVES.....................................................................69
*7 EXCLUDED ASSETS...........................................................................74
*8 MINISTERIAL DECLARATION...................................................................78
*9 ENVIRONMENTAL REPORTS.....................................................................82
*10 CONTRACTS................................................................................110
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NO. PAGE
* ANNEXURE "A"
HERITAGE AND HISTORICAL ITEMS
* OMMITTED SCHEDULES AND ANNEXURE
UPON WRITTEN REQUEST, THE REGISTRANT WILL PROVIDE COPIES OF ANY OF THE
REFERENCED OMITTED SCHEDULES AND ANNEXURE.
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SHARE SALE AGREEMENT made August 28, 1997
BETWEEN:
(1) COMMONWEALTH OF AUSTRALIA (the "COMMONWEALTH");
(2) GENESEE & WYOMING AUSTRALIA PTY LIMITED ACN 079 444 296 of c/- 00 Xxxxx
Xxxxxx, Xxxxxxxx XX 0000 (the "PURCHASER"); and
(3) GENESEE & WYOMING INC of 00 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000
XXX (the "GUARANTOR").
RECITALS:
A. The Commonwealth will, before Completion, be the registered holder and
beneficial owner of the Shares.
B. The Commonwealth wishes to sell and the Purchaser at the request of the
Guarantor wishes to buy from the Commonwealth the Shares on the terms
and conditions of this agreement.
C. The Purchaser is a company all the shares in which are legally and
beneficially owned by the Guarantors.
THE PARTIES AGREE AND DECLARE AS FOLLOWS:
1. INTERPRETATION
1.1 DEFINITIONS
In this agreement, unless the context otherwise requires:
"AN" means Australian National Railways Commission established under
the Australian National Railways Act 1917 and continued in existence
pursuant to the ANRC Act;
"ANRC ACT" means the Australian National Railways Commission Act 1983
(C'th) (as amended inter alia by Act No. 96 of 1997);
"APPRENTICES" means those persons whose services are provided to AN at
the workshops located at Islington and Port Augusta in connection with
the Business and who are party to an Indenture of Apprenticeship with
AN as at the date of this agreement;
"ASSETS" means the right title and interest of AN as at the Vesting
Date in the assets included within each of the classes described in
schedule 6, other than any such assets which are Excluded Assets (each
an "ASSET");
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2.
"ASSET REGISTER" means the sub register which forms part of the asset
register of AN, and which relates to those business units of AN
referred to in the definition of "Business" and with a level 3 code of
"FTC", "INF", "LOC", "SAF", or "WKS" but as updated in respect of
transfers of assets occurring during May and June 1997;
"ASSOCIATED PERSON" has the same meaning as in the Confidentiality
Agreement except that, after Completion, the Company shall not be an
Associated Person;
"AUCTION VALUE" means for any item of Plant, the proportion of the
Purchase Price for the Shares fairly attributable to that item to be
determined at the cost of the Commonwealth by an independent expert
valuer mutually agreed by the Commonwealth and the Purchaser whose
certificate will be conclusive evidence of that auction value;
"AUSTRALIAN ARCHIVES" means the organisation within the Department of
Communication and the Arts of the Commonwealth established by section
5(1) of the Archives Xxx 0000;
"BUREAU SERVICES AGREEMENTS" means agreements between the Company and
AN, Pax Rail Pty Limited and Tasrail Pty Limited for the provision on
and from the Completion Date of computing and related services by the
Company, each in a form agreed between the parties to those agreements
(each a "BUREAU SERVICES AGREEMENT");
"BUSINESS DAY" means a day on which banks are open for the full range
of banking business in Canberra;
"BUSINESS" means the businesses known as:
(a) SA Freight;
(b) Infrastructure Services:
(c) PowerRail;
(d) RailFleet; and
(e) RailMec,
conducted by AN as at the date of this agreement and to be conducted by
the Company from Completion;
"COMMONWEALTH RECORD" has the meaning given by the Archives Xxx 0000;
"COMPANY" means SA Rail Pty Limited ACN 077 946 340, whose corporate
details are set out in schedule 2;
"COMPLETION" means completion of the sale and purchase of the Shares
under clause 6;
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3.
"COMPLETION CONTRACTS" means those contracts described in part 1 of
schedule 10;
"COMPLETION DATE" means the Business Day which is 14 days after the
fulfilment (or waiver under clause 4.3) of the conditions referred to
in clause 4;
"CONDITION FULFILMENT DATE" means:
(a) in respect of condition precedent number 2 in schedule 3, 15
October 1997 or such later date as is agreed by the parties
pursuant to clause 6.2;
(b) in respect of all other conditions precedent, the date which
is 6 months after the date of the agreement; or
(c) any other date which is agreed in writing by the parties;
"CONFIDENTIALITY AGREEMENT" means the Confidentiality Agreement in the
form of a deed entered into between the Commonwealth, AN, and the
Purchaser relating to the disclosure of information relating to AN, the
Company, the Assets and the Business;
"CONTRACTS" means those Assets which are included in the class of
assets described in part 4 of schedule 6 (other than any asset in that
class which is an Excluded Asset) (each a "CONTRACT");
"XXXX TOWNSHIP LICENCE" means an agreement between AN and the Company
for the occupation by the Company on and from the Completion Date of
certain land in the township of Xxxx in South Australia in a form
agreed between AN, the Purchaser and the Company;
"XXXX TOWNSHIP LAND" means the land the subject of the Xxxx Township
Licence;
"DATA ROOM" means the room at the Maritime Services Building, 000 Xxxx
Xxxxxx, Xxxxxx access to which was made available to the Purchaser and
its advisers for the purposes of conducting due diligence on the Assets
and the Business;
"DEFAULT RATE" means the current rate for overdrafts in excess of
$100,000 offered to prime corporate customers at Commonwealth Bank;
"DEPOSIT" means the cash amount of $5,740,000 (being 10% of the
Purchase Price) payable by the Purchaser in accordance with clause 3.1;
"DEPOSIT HOLDER" means Xxxxx Xxxxxx Xxxxxxx, Solicitors, of Xxxxx 00,
Xxxxxxxxx Xxxxx, 000 Xxxxxx Xxxxxx, Xxxxxx, XXX 0000;
"DRAFT CONSERVATION MASTER PLAN" means a plan developed by consultants
for the Department of Transport and Regional Development which, among
other things, will make recommendations regarding the management of
heritage assets of the
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4.
Business and identify those places for which conservation management
plans should be prepared;
"DOCUMENT" includes:
(a) any paper or other material on which there is writing or
printing or on which there are marks, figures, symbols or
perforations having a meaning for persons qualified to
interpret them;
(b) a disc, tape or other article from which sounds, images or
messages are capable of being reproduced; and
(c) a disc, tape or other article, or any material, from which
sounds, images, writings or messages are capable of being
reproduced with or without the aid of any other article or
device;
"EMPLOYEE" means each employee of AN principally utilised in South
Australia for the Business;
"ENVIRONMENTAL REPORT" means a report listed in schedule 9;
"EXCLUDED ASSETS" means those assets included within each of the
classes described in schedule 7 (each an "EXCLUDED ASSET");
"FATA" means the Foreign Acquisitions and Takeovers Xxx 0000;
"GOVERNMENTAL AGENCY" means a government or government department, a
governmental, semi-governmental or judicial person and a person
(whether autonomous or not) charged with the admission of any
applicable law;
"GROUND LEASE" has the same meaning as in the Railways Agreement;
"INFORMATION MEMORANDUM" means the document dated May 1997 entitled
"Information Memorandum SA Rail" issued by the Commonwealth;
"INTELLECTUAL PROPERTY" means those Assets which are included in the
class of assets described in part 6 of schedule 6 (other than any asset
in that class which is an Excluded Asset);
"INVENTORY" means those Assets which are included in the class of
assets described in part 3 of schedule 6 (other than any asset in that
class which is an Excluded Asset);
"LOSS OR CLAIM" means, in relation to any person, a damage, loss, cost,
expense or liability incurred by the person (including, without
limitation, legal expenses on a solicitor and own client basis) or a
claim, demand, action, proceeding or judgment made against the person,
however arising and whether present or future, fixed or unascertained,
actual or contingent;
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5.
"MINISTERIAL DECLARATION" means a declaration or determination made by
the Minister for Finance for the Commonwealth pursuant to:
(a) sections 67AE(1)(a) and 67AF(1);
(b) section 67AZT(2); or
(c) part 1 of schedule 5
(as the case may be) of the ANRC Act in the form of or to the effect of
the declarations set out in parts 1, 2 and 3 of schedule 8
respectively;
"MINIMUM SERVICES" has the meaning given to that term in the Ground
Lease;
"NATIVE TITLE CLAIM" means any claim in respect of an interest in land
made pursuant to the Native Xxxxx Xxx 0000 or at common law;
"PARKESTON LAND" means the land the subject of the Parkeston Licence;
"PARKESTON LICENCE" means an agreement between AN and the Company for
the occupation by the Company on and from the Completion Date of
certain land comprising railway yards at Parkeston in Western Australia
in a form agreed between AN, the Purchaser and the Company;
"PLANT" means those Assets itemised in the Asset Register which are
included in the class of assets described in part 2 of schedule 6
(other than any asset in that class which is an Excluded Asset);
"PURCHASE PRICE" means $57,400,000;
"RAILWAYS AGREEMENT" means the agreement between the Commonwealth and
the State of South Australia dated 30 June 1997 a copy of which is
annexed to the Non-Metropolitan Railways (Transfer) Xxx 0000 (S.A);
"RAILWAYS LAND" means the land leased to the Company pursuant to the
Ground Lease;
"RECORDS ARRANGEMENT" means an arrangement made between AN and
Australian Archives under section 28A of the Archives Xxx 0000;
"RECORDS DISPOSAL AUTHORITY" means an authority granted by Australian
Archives for disposal of or transfer to the Company of custody or
ownership of, any record of AN that is a Commonwealth record;
"REMEDIATION PROGRAMS" means the programs between the Commonwealth and
the State of South Australia, the State of Western Australia and the
Northern Territory for the remediation of certain land in South
Australia, Western Australia and the Northern Territory respectively
associated with the railways;
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6.
"SALE INFORMATION" means all information in any form or media,
including, without limitation, the Information Memorandum, a package of
Documents and the contents of the Data Room:
(a) which may be disclosed or made available to the Purchaser or
its employees, agents or advisers by or on behalf of the
Commonwealth or AN; and
(b) which relates to or concerns the Assets or the Business, any
of the Companies or any related body corporate (as defined in
the Corporations Law) of AN or the Companies, or any agent,
employee or customer of AN;
"SENIOR OFFICER" means:
(a) in relation to the Commonwealth, a person in the Department of
Transport and Regional Development holding the rank of First
Assistant Secretary, Land Transport Policy or above; and
(b) in relation to the Purchaser, a director of the Purchaser;
"SHARES" means the shares in the Company described in schedule 1;
"SOUTH AUSTRALIAN ACTS" means the Non-Metropolitan Railways (Transfer)
Act 1997) and the Non-Metropolitan Railways (Operations and Access) Act
1997);
"SPECIFIED LOCOMOTIVES" means those locomotives specified in part 10 of
schedule 6;
"TRACK INFRASTRUCTURE" means those Assets itemised in the Asset
Register which are included in the class of assets described in part 1
of schedule 6 (other than any asset in that class which is an Excluded
Asset);
"TRANSITIONAL SERVICES AGREEMENT" means an agreement between the
Company and AN for the provision on and from the Completion Date of
certain services by AN to the Company in a form agreed between the
Commonwealth, AN, the Company and the Purchaser;
"VESTING DATE" in relation to an Asset means the date specified in a
relevant Ministerial Declaration as the date upon which the Asset
specified in that declaration vests in the Company;
"WARRANTY" means each of the warranties and representations referred to
in clause 15.1.
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7.
1.2 GENERAL
In this agreement, unless the context otherwise requires:
(a) a reference to any legislation or legislative provision
includes any statutory modification or re-enactment of, or
legislative provision substituted for, and any subordinate
legislation issued under, that legislation or legislative
provision;
(b) the singular includes the plural and vice versa;
(c) a reference to an individual or person includes a corporation,
partnership, joint venture, association, authority, trust,
state or Government and vice versa;
(d) a reference to any gender includes all genders;
(e) a reference to a recital, clause, schedule, annexure or
exhibit is to a recital, clause, schedule, annexure, or
exhibit of or to this agreement;
(f) a recital, schedule, annexure or a description of the parties
forms part of this agreement;
(g) a reference to any agreement or document is to that agreement
or document (and, where applicable, any of its provisions) as
amended, novated, supplemented or replaced from time to time;
(h) a reference to any party to this agreement, or any other
document or arrangement, includes that party's executors,
administrators, substitutes, successors and permitted assigns;
(i) where an expression is defined, another part of speech or
grammatical form of that expression has a corresponding
meaning;
(j) a reference to a "SUBSIDIARY" of a body corporate is to a
subsidiary of that body corporate in accordance with Part 1.2
Division 6 of the Corporations Law;
(k) a reference to a "RELATED BODY CORPORATE" of a body corporate
is to a body corporate which is related to that body corporate
within the meaning of section 50 of the Corporations Law;
(l) a reference to becoming bankrupt or being wound up includes
bankruptcy, winding up, liquidation, dissolution, becoming an
insolvent under administration (as defined in section 9 of the
Corporations Law), being placed under the control of an
administrator, execution of a deed of company arrangement and
the occurrence of anything analogous or having a substantially
similar effect to any of those conditions or matters under the
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8.
law of any applicable jurisdiction, and to the procedures,
circumstances and events which constitute any of those
conditions or matters;
(m) where an expression is defined anywhere in this agreement, it
has the same meaning throughout;
(n) a reference to "DOLLARS" or "$" is to an amount in Australian
currency; and
1.3 HEADINGS
In this agreement, headings are for convenience of reference only and
do not affect interpretation.
2. AGREEMENT TO SELL AND BUY THE SHARES
2.1 SALE AND PURCHASE
Subject to clauses 3.1 and 4, the Commonwealth agrees to sell to the
Purchaser and the Purchaser agrees to buy from the Commonwealth, the
Shares free from any security or third party interest for the Purchase
Price and otherwise on the terms and conditions of this agreement.
2.2 TITLE PROPERTY AND RISK
The title to, property in and risk of the Shares:
(a) after the Commonwealth acquires the Shares and until
Completion, remains solely with the Commonwealth; and
(b) passes to the Purchaser on and from Completion.
3. DEPOSIT
3.1 PAYMENT OF DEPOSIT
On the execution of this agreement and as a condition precedent to the
obligations of the parties under this agreement, the Purchaser must
pay, by way of deposit, to the Deposit Holder the Deposit to be held by
the Deposit Holder as stakeholder as contemplated by this agreement.
3.2 INVESTMENT OF DEPOSIT
The Deposit Holder must immediately invest the Deposit by placing it in
any interest bearing investment approved by the Commonwealth in
writing.
3.3 VESTING OF DEPOSIT
On Completion:
(a) the Deposit immediately vests in the Commonwealth;
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9.
(b) the Purchaser must deliver to the Commonwealth a written
direction to the Deposit Holder to account to the Commonwealth
for the Deposit;
(c) on delivery of that direction, the amount required to be paid
by the Purchaser to the Commonwealth on Completion is
automatically reduced by the amount of the Deposit; and
(d) the accrued interest immediately vests in the Commonwealth and
the Purchaser in equal shares and the parties shall direct the
Deposit Holder to account to the Commonwealth and the
Purchaser for that interest.
3.4 RETURN OF DEPOSIT TO PURCHASER
Except to the extent provided in clause 3.5, if this agreement is
lawfully rescinded or terminated before Completion, the Deposit and the
accrued interest immediately vests in the Purchaser, and the
Commonwealth shall deliver to the Purchaser a written direction to the
Deposit Holder to account to the Purchaser for the Deposit and the
accrued interest.
3.5 APPLICATION OF DEPOSIT ON TERMINATION BY COMMONWEALTH
If before Completion:
(a) the Purchaser or the Guarantor fails to perform any obligation
or otherwise defaults in respect of a term of this agreement;
(b) that failure or breach entitles the Commonwealth to terminate
this agreement; and
(c) the Commonwealth terminates this agreement,
then the Deposit and the accrued interest immediately vests in the
Commonwealth, and the Purchaser must deliver to the Commonwealth a
written direction to the Deposit Holder to account to the Commonwealth
for the Deposit and the accrued interest.
3.6 RISK
The risk of losing the Deposit is on the party who becomes entitled to
the Deposit.
4. CONDITIONS
4.1 CONDITIONS PRECEDENT TO COMPLETION
The obligations of the parties to complete the sale and purchase of the
Shares do not become binding unless each of the conditions set out in
schedule 3 is fulfilled (or waived under clause 4.3).
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10.
4.2 EFFECT OF NON-FULFILMENT
If the conditions referred to in clause 4.1 are not fulfilled (or
waived under clause 4.3) on or before the Condition Fulfilment Date,
then this agreement (other than this clause 4 and clauses 1, 21, 22,
24, 25, 26 and 27) is at an end as to its future operation except for
the enforcement of any right or claim which arises on this agreement
coming to an end or which has arisen before this agreement comes to an
end.
4.3 FULFILMENT BY WAIVER
A condition referred to in clause 4.1 is waived if, and only if:
(a) where the condition is expressed to be for the benefit of a
particular party, that party gives notice of waiver of the
condition to the other party; and
(b) otherwise, the parties agree in writing to waive the condition.
4.4 OBLIGATION TO SATISFY CONDITIONS
The Purchaser must do anything needed on its part to ensure that the
conditions referred to in clauses 3.1 and 4.1 are fulfilled on or
before the Condition Fulfilment Date. The Commonwealth is not under any
express or implied obligation to procure fulfilment of, or in relation
to fulfilment of, any condition referred to in clause 4.1, and is not
liable to the Purchaser or the Guarantor for any Loss or Claim whatever
arising out of, or in connection with, or relating to any
non-fulfilment of any condition.
4.5 EXTENT OF OBLIGATION TO FULFIL CONDITIONS
The obligation imposed on the Purchaser by clause 4.4 does not require
the Purchaser to waive any condition under clause 4.3.
5. CONDUCT PENDING COMPLETION
5.1 CONDUCT OF BUSINESSES
Subject to clauses 5.2 and 5.3, the Commonwealth must procure that,
until Completion, the Company and AN do not, unless required or
contemplated by this agreement or as a consequence of the Ministerial
Declaration set out in part 1 of schedule 8, in relation to the
Business:
(a) enter into, terminate or alter any term of any material
contract or commitment;
(b) incur any material liabilities;
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11.
(c) dispose of, agree to dispose of, encumber or grant an option
over any of the Assets or any interest in any of them other
than (in the case of AN) in the ordinary course of carrying on
the Business;
(d) hire any employee;
(e) allot or issue or agree to allot or issue any share or loan
capital or any security convertible into any share or loan
capital;
(f) declare or pay any dividend or make any other distribution of
its assets or profits;
(g) alter or agree to alter its memorandum or articles of
association; or
(h) pass any special resolution.
5.2 COMPLETION CONTRACTS
Nothing in clause 5.1 precludes the Company or AN from:
(a) entering into Completion Contracts;
(b) doing anything specified in clause 5.1 with the Purchaser's
prior written consent; or
(c) doing anything specified in clause 5.1 pursuant to a
Ministerial direction under the ANRC Act.
5.3 MATERIAL CONTRACT, COMMITMENT OR LIABILITY
For the purposes of clauses 5.1(a) and (b), a material contract or
commitment or a material liability shall be a contract or commitment,
or liability (as the case may be), either:
(a) for or of a total value exceeding $250,000; or
(b) for or of a term or period of 6 months or more.
5.4 OPERATION OF BUSINESS BY AN
The Purchaser acknowledges that until the Assets are vested in the
Company pursuant to the Ministerial Declaration set out in part 1 of
schedule 8, the Assets will continue to be owned and the Business will
continue to be operated by AN pursuant to the Australian National
Railways Commission Act 1983 and that (except to the extent
specifically provided for in this agreement):
(a) neither the Commonwealth nor the Company is responsible for
the operation of the Business pending Completion; and
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(b) the Commonwealth is under no obligation to cause either or
both the Minister for Finance or the Minister for Transport
and Regional Development to direct AN in any way in relation
to the conduct by AN of the Business pending Completion
(including for the avoidance of doubt by the giving of any
direction under section 6AA or under section 19 of the
Australian National Railways Commission Act 1983 .
Nothing in this clause in any way restricts or xxxxxxx the Commonwealth
or restricts or xxxxxxx the discretion of any Minister in the giving of
any direction (whether under section 19 of the Australian National
Railways Commission Act 1983 or otherwise) or imposes on the
Commonwealth any liability in relation to, or creates in the Purchaser
or the Guarantor any rights as a result of, the giving of or failing to
give any such direction.
5.5 ASSISTANCE AND ACCESS FOR PURCHASER
Until Completion, the Commonwealth must procure that AN gives
reasonable access to its premises to the Purchaser's representatives
during normal business hours and in accordance with the reasonable
rules and policies of AN or the Commonwealth, and allows any of those
persons to:
(a) observe the conduct of the Business;
(b) so far as is permitted by law, examine and, if desired, at the
cost of the Purchaser copy any of the books and records (including,
without limitation, computerised information), property and affairs
of AN relating to the Business other than to the extent any such
book, record or information relate to the Excluded Assets;
(c) consult AN's auditor or any of AN's employees concerning the
Business; and
(d) conduct a stocktake for the purposes of clause 8.3.
5.6 LEIGH CREEK HAULAGE CONTRACT
The Purchaser acknowledges on its own behalf and on behalf of the
Company that the benefit and burden of the existing arrangements for
the haulage of coal on the line from the Leigh Creek North Coalfield to
the Northern Power Station at Port Augusta will not be vested pursuant
to the Ministerial Declaration set out in part 1 of schedule 8. The
Purchaser will be at liberty to negotiate a contract for coal haulage
between the Company and Optima Energy on the basis that:
(a) the contract will commence on or at any time after Completion; and
(b) failure to conclude a contract shall not relieve the Purchaser
or the Guarantor from their obligations under this agreement.
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5.7 CONFIDENTIALITY
The provisions of the Confidentiality Agreement apply to any
information disclosed to or obtained by the Purchaser by reason of the
tender process or action taken under clause 5.5.
5.8 TERMINATION BY THE COMMONWEALTH
Despite execution of this agreement, the Commonwealth may, by written
notice, notify the Purchaser that the agreement will not proceed to
Completion. If the Commonwealth gives such a notice:
(a) the Commonwealth is only liable to the Purchaser for:
(i) return of the Deposit plus accrued interest; and
(ii) the reasonable costs incurred by the Purchaser in
negotiating the agreement from the time the Purchaser
was selected as a preferred tenderer until the time
of issue of the notice; and
(b) the Purchaser and the Guarantor acknowledge on their own
behalf and on behalf of the Company that none of them is
entitled to:
(i) compensation for any other costs or expenses incurred
by the Purchaser or the Guarantor arising from or
relating to lodging the expressions of interest,
undertaking a due diligence on or related to any of
the Assets or the Business or taking part in the
tender process and submitting a tender; or
(ii) any other moneys or compensation or damages whatever,
including without limitation, for any loss of
prospective profits, loss of business opportunity or
any other form of indirect or consequential loss or
damage.
6. COMPLETION
6.1 TIME AND PLACE OF COMPLETION
Completion is to occur on the Completion Date at the offices of Xxxxx
Xxxxxx Xxxxxxx in Sydney or at any other time or place agreed in
writing by the parties.
6.2 CHANGE TO CONDITION FULFILMENT DATE
If, on the Business Day preceding the relevant Condition Fulfilment
Date, condition precedent number 2 in schedule 3 has not been
fulfilled, the parties may agree a new Condition Fulfilment Date which
shall be a date which is no more than 6 months after the date of this
agreement.
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6.3 OBLIGATIONS OF COMMONWEALTH AT COMPLETION
At Completion the Commonwealth must:
(a) deliver or cause to be delivered to the Purchaser:
(i) the share certificates in respect of the Shares;
(ii) instruments of transfer of the Shares naming as
transferee the Purchaser or its nominees which have
been duly executed in blank by the respective holders
and are in registrable form;
(iii) the Certificate of Incorporation of the Company (and
any Certificate of Incorporation on Change of Name);
(iv) the common seal (and any duplicate common seal, share
seal or official seal) of the Company;
(v) a copy of the Memorandum and Articles of Association
of the Company certified by the secretary of the
Company;
(vi) the minute books and other records of meetings or
resolutions of members and directors of the Company;
(vii) all registers of the Company (including the register
of members, register of directors, register of
charges) all in proper order and condition and fully
entered up to the Completion Date;
(viii) all records of the Business other than to the extent
those records relate to the Excluded Assets or are
required to be retained by the Commonwealth to meet
its obligations under the Archives Xxx 0000 or the
Audit Xxx 0000;
(ix) all current permits, licences and other documents
issued in respect of the Business under any
legislation or ordinance;
(x) the written resignations of each director,
secretary and public officer of the Company;
(xi) any other document which the Purchaser requires to
obtain good title to the Shares and to enable the
Purchaser to procure the registration of the Shares
in the name of the Purchaser or its nominee including
any power of attorney under which any document
delivered under this agreement has been signed;
(xii) copies of the written agreements referred to in part
2 of schedule 10;
(xiii) the Completion Contracts;
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(xiv) completed transfer documents relating to the motor
vehicles listed in part 8 of schedule 6; and
(xv) subject to clauses 10 and 11, the title deeds
relating to the Parkeston Land and the Xxxx Township
Land and either a Ministerial Declaration under
Section 67AE of the ANRC Act in respect of that land
(and all fixtures and fittings on it) or a transfer
of that land (and all fixtures and fittings on it)
capable of immediate registration;
(b) procure that duly convened meetings of the directors of the
Company are held and procure at those meetings (as
applicable):
(i) the Company issue and allot to the Commonwealth
573,999,999 ordinary shares of $1.00 each issued as
fully paid in consideration of the vesting pursuant
to the Ministerial Declaration set out in part 1 of
schedule 8 of the Assets in the Company;
(ii) the approval of the registration and the registration
(subject to payment of stamp duty) of the transfers
of the Shares, the issue of a new share certificate
for the Shares in the name of the transferee and the
cancellation of the existing share certificates;
(iii) the appointment as additional directors, secretaries
and public officers of the Company of the persons
nominated by the Purchaser by notice before the
Completion Date who have consented to so act; and
(iv) the retirement of each existing director, secretary
and public officer of the Company with effect from
the end of that meeting with each retirement;
(c) confer on the Purchaser title to the Shares and (subject to
the Transitional Services Agreement) place the Purchaser in
operating control of the Company, the Business and the Assets;
and
(d) do and execute all other acts and documents which this
agreement requires the Commonwealth to do or execute at
Completion.
6.4 OBLIGATIONS OF PURCHASER AT COMPLETION
At Completion the Purchaser must:
(a) (subject to clause 3) pay the Purchase Price to the
Commonwealth or as the Commonwealth may direct by notice to
the Purchaser, in cash or by bank cheque or in any other form
that the parties may agree in writing;
(b) cause sufficient instruments of consent to be available to
allow the Company to pass the resolutions required by clause
6.3(b)(iii); and
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(c) do and execute all other acts and documents which this
agreement requires the Purchaser to do or execute at
Completion.
6.5 COMMONWEALTH'S OBLIGATIONS UNTIL REGISTRATION
After Completion and until the Shares are registered in the name of the
Purchaser and any nominee, the Commonwealth must convene and attend
general meetings of the Company, vote at those meetings and take all
other action in the capacity of registered holder of the Shares as may
be lawfully required.
6.6 PURCHASER'S OBLIGATION TO REGISTER
The Purchaser must ensure that registration of the transfer of the
Shares takes place as soon as possible after Completion.
6.7 DEFAULT INTEREST
If the Purchaser fails to pay on any due date any sum which the
Purchaser is obliged to pay under this agreement, then the Purchaser
must pay interest on the outstanding balance of that sum at a rate
calculated on a daily basis at the Default Rate for the period from and
including the due date until the sum has been paid in full.
6.8 DEFAULT BY PURCHASER
Where, due to any default by the Purchaser, Completion does not occur
the Commonwealth may in its absolute discretion:
(a) terminate this agreement by giving written notice to that
effect to the Purchaser; and
(b) if it terminates this agreement, resell the Shares or the
Assets and recover from the Purchaser:
(i) the deficiency on resale (with credit for any of the
Deposit forfeited); and
(ii) the reasonable costs and expenses of resale, and of any
attempted resale.
6.9 RESALE OF THE BUSINESS BY THE COMMONWEALTH
Where the Commonwealth is entitled to terminate this agreement under
clause 6.8 but has not yet done so:
(a) the entry by the Commonwealth into a conditional or
unconditional agreement for the resale of all or some of the
Shares or Assets to another party will take effect as a
termination of this agreement by the Commonwealth pursuant to
clause 6.8; and
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(b) such resale will be taken to have occurred after termination.
6.10 NO COMPENSATION
If this agreement is terminated under clause 6.8 or by virtue of clause
6.9, neither the Purchaser nor the Guarantor is entitled to:
(a) compensation for any other costs or expenses incurred by the
Purchaser or the Guarantor arising from or relating to lodging
the expressions of interest, undertaking a due diligence on or
related to any of the Assets or the Business or taking part in
the tender process and submitting a tender; or
(b) any other moneys or compensation or damages whatever,
including without limitation, for any loss of prospective
profits, loss of business opportunity or any other form of
indirect or consequential loss or damage.
7. DEBTORS, CREDITORS AND CONTRACTS
7.1 POST-COMPLETION CREDITORS
The Company is solely responsible to all creditors of the Business for
debts and liabilities incurred by the Company on and from Completion
and the Purchaser must indemnify, and agrees to keep indemnified, AN
and the Commonwealth in relation to any Loss or Claim in relation to
those debts and liabilities.
7.2 COLLECTION OF DEBTS
The Purchaser and the Guarantor acknowledge on their own behalf and on
behalf of the Company that all debtors of the Business arising from
transactions entered into prior to Completion remain the property of
AN.
7.3 TRANSITIONAL SERVICES AGREEMENT AND THE BUREAU SERVICES AGREEMENT
The Purchaser must ensure that the Company punctually and properly
performs all its obligations under the Transitional Services Agreement
and the Bureau Services Agreement between the Company and AN.
7.4 PURCHASER'S INDEMNITY
The Purchaser must indemnify, and keep indemnified, the Commonwealth
and AN against each Loss or Claim against the Commonwealth or AN
arising from or in connection with any breach or non-performance after
Completion by the Company of any provision of any Contract.
7.5 NO COMMONWEALTH WARRANTY
Except as expressly set out in this agreement, the Commonwealth makes
no warranty express or implied in relation to any Contract, and in
particular the
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Commonwealth makes no warranty or representations express or implied
concerning:
(a) compliance by AN, the Company or any other person with the
provisions of any Contract;
(b) the occurrence or non-occurrence of any event entitling any
party to vary or terminate any Contract;
(c) the profitability or feasibility of any Contract;
(d) whether any Contract, or performance of it, complies with any
law; or
(e) whether the written agreements specified in part 2 of schedule
10 contain all the terms and conditions of the relevant
contract between the parties to those agreements.
7.6 ENFORCEMENT BY AN
Clauses 7.1 to 7.5 of this agreement are intended to benefit and are to
be interpreted as benefiting AN and to be enforceable by AN against the
Purchaser. To that extent, the Commonwealth has entered this agreement
on its own behalf and on behalf of AN.
8. PLANT, TRACK INFRASTRUCTURE AND INVENTORY
8.1 PLANT, TRACK INFRASTRUCTURE AND INVENTORY "AS IS"
(a) The Plant, Track Infrastructure and Inventory is to be vested
in the Company as is, in its existing location, state of
repair and condition.
(b) Completion of this agreement will be conclusive evidence that
those Assets which are Plant, Track Infrastructure or
Inventory are in the state required by this agreement.
(c) The Purchaser and the Guarantor acknowledge on their own
behalf and on behalf of the Company that the Commonwealth will
not be liable to the Purchaser, the Guarantor, or the Company
for any Loss or Claim in relation to the state or condition
of, or any other matter concerning, any item of Plant, Track
Infrastructure or Inventory.
8.2 STATUS OF ASSET REGISTER
Subject to clauses 8.3 and 8.5(b):
(a) the Commonwealth makes no representation or warranty express
or implied:
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(i) that all items of Track Infrastructure, Plant and
Inventory to be vested in the Company on the Vesting
Date are contained in the Asset Register;
(ii) that all items in the Asset Register are Assets to be
vested in the Company on the Vesting Date; or
(iii) as to the correspondence of any item of Track
Infrastructure, Plant or Inventory to any description
in the Asset Register;
(b) the inclusion of any item in the Asset Register, or the
omission of any item of Track Infrastructure, Plant or
Inventory from the Asset Register, will not vitiate this
agreement or entitle the Purchaser to reduce the Purchase
Price or claim compensation or damages for any Loss or Claim
from the Commonwealth; and
(c) the provisions of this agreement and not the contents of the
Asset Register (to the extent of any inconsistency) are
paramount in determining the Assets to be vested in the
Company on the Vesting Date.
8.3 STOCKTAKE
(a) Within the period of one month from the date of this
agreement, the Commonwealth must give, and must procure that
AN gives, the Purchaser a reasonable opportunity at the
Purchaser's cost to inspect and take a count of all items of
Plant and Inventory. During or after that inspection and prior
to the Condition Fulfilment Date the Purchaser may give to the
Commonwealth written notice specifying any Specified
Locomotive which the Purchaser has been unable to inspect. If
the Commonwealth agrees or it is determined that more than
three of the Specified Locomotives described in schedule 6A
are unable to be located, then the Commonwealth will arrange
for the Auction Value of those locomotive to be determined
within 10 Business Days of receipt by the Commonwealth of that
notice and then subject to paragraph (b) the Purchaser will be
entitled to a deduction from the Purchase Price of the amount
of the aggregate of the Auction Values of those locomotives,
up to a maximum of 30% of the Purchase Price.
If no notice is given by the Purchaser under this clause
before the Condition Fulfilment Date, then the Purchaser shall
have no right to a deduction from the Purchase Price as
contemplated by this clause.
(b) If relevant Auction Values for the purposes of paragraph (a)
have not been determined at Completion, the Purchaser must pay
the full Purchase Price and the Commonwealth must repay to the
Purchaser the aggregate of the Auction Values as soon as
practicable when it has been ascertained up to the relevant
maximum percentage of the Purchase Price specified in
paragraph (a) above.
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(c) Apart from a claim under this clause, clause 8.4 or clause
8.5(b) the Commonwealth will not be liable for any Loss or
Claim made in relation to the existence or state of repair or
condition of or any other matter concerning any item of Plant.
8.4 ACTIVE WAGON STOCKTAKE
(a) During or after the inspection specified in clause 8.3(a) and
prior to the Condition Fulfilment Date the Purchaser may give
to the Commonwealth written notice specifying any wagon which
is currently in active use in the Business ("ACTIVE WAGON")
listed in the Asset Register which the Purchaser has been
unable to inspect (other than any such Active Wagon which is
an Excluded Asset.). If the Commonwealth agrees or it is
determined that an Active Wagon specified by the Purchaser is
unable to be located, then the Commonwealth will arrange for
the Auction Value of that Active Wagon specified in the
Purchaser's notice to be determined within 10 Business Days of
receipt by the Commonwealth of that notice. If the aggregate
of the Auction Values of all Active Wagons specified by the
Purchaser which are unable to be located exceed $1 million
then, subject to paragraph (b), the Purchaser will be entitled
to a deduction from the Purchase Price of the amount of the
aggregate of the Auction Values up to a maximum of 30% of the
Purchase Price. If no notice is given by the Purchaser under
this clause before the Condition Fulfilment Date, then the
Purchaser shall have no right to a deduction from the Purchase
Price as contemplated by this clause.
(b) If relevant Auction Values for the purposes of paragraph (a)
have not been determined at Completion, the Purchaser must pay
the full Purchase Price and the Commonwealth must repay to the
Purchaser the aggregate of the Auction Values as soon as
practicable when it has been ascertained up to a maximum of
30% of the Purchase Price.
8.5 NO WARRANTY AS TO PLANT, TRACK INFRASTRUCTURE OR INVENTORY
Except as expressly set out in this agreement, the Commonwealth makes
no warranty or representation express or implied in relation to any
Plant, Track Infrastructure or Inventory and in particular, the
Commonwealth makes no warranty or representation express or implied
concerning the following:
(a) the state of repair or maintenance or serviceability of any
item of Plant or Track Infrastructure;
(b) the ability to operate together as an entire unit of any items
of Plant or Track Infrastructure;
(c) compliance with any statutory or Governmental requirements
relating to or to the use or operation of any Plant or Track
Infrastructure including
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(without limitation) the existence of any licence or permit or
the ability to obtain any licence or permit;
(d) quality, fitness or suitability for any purpose of any item of
Plant or Track Infrastructure;
(e) the safety of any item of Plant or Track Infrastructure;
(f) ability to operate or use the Assets as a going concern; or
(g) the financial return which may be obtained from the use of the
Assets.
8.6 DESTRUCTION OR DAMAGE TO PLANT
If any item of Plant is materially damaged prior to Completion, the
Commonwealth may either reinstate or replace that item, or give to the
Purchaser notice that any such item or items will become an Excluded
Asset and on giving that notice:
(a) this agreement will be at an end in respect of that item of
Plant only (but will remain in full force and effect in
respect of all other Assets);
(b) if the aggregate Auction Values of all items of Plant referred
to in the notice from the Commonwealth exceeds $3 million,
then the Purchaser will be entitled to a deduction from the
Purchase Price of the aggregate of those Auction Values up to
a maximum of 30% of the Purchase Price and the Commonwealth
will arrange for the Auction Value of each item of Plant
referred to in the notice to be determined within 14 days of
giving that notice (but if any Auction Values of the items of
Plant referred to in the notice have not been determined at
Completion, the Purchaser must pay the full Purchase Price and
the Commonwealth must repay to the Purchaser the aggregate of
those Auction Values when it has been ascertained up to a
maximum of 30% of the Purchase Price); and
(c) neither the Commonwealth nor the Purchaser or the Guarantor
will have any other right, obligation, claim or liability for
any Loss or Claim in respect of any item of Plant specified in
the notice.
9. LEASES AND LICENCES
9.1 NO WARRANTY AS TO CERTAIN MATTERS AS TO GROUND LEASE, PARKESTON LICENCE
OR XXXX TOWNSHIP LICENCE
Except as expressly set out in this agreement, the Commonwealth makes
no warranty or representation express or implied concerning the Ground
Lease, the Parkeston Licence or the Xxxx Township Licence and in
particular the Commonwealth makes no warranty or representation express
or implied concerning, and is under no liability for any Loss or Claim
relating to, the following:
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(a) the fitness or suitability for any particular purpose of the
Railways Land, the Parkeston Land or the Xxxx Township Land;
(b) the state of repair or maintenance or serviceability of the
Railways Land, the Parkeston Land or the Xxxx Township Land;
(c) the completeness or accuracy of any description of the Ground
Lease, the Parkeston Licence, the Xxxx Township Licence, the
Railways Land, the Parkeston Land or the Xxxx Township Land;
(d) compliance with any statutory or governmental requirements
relating to or to the use or operation of the Railways Land,
the Parkeston Land or the Xxxx Township Land;
(e) the safety of the Railways Land, the Parkeston Land or the
Xxxx Township Land;
(f) the financial return which may be obtained from the use of the
Railways Land, the Parkeston Land or the Xxxx Township Land;
and
(g) the Railways Land, the Parkeston Land or the Xxxx Township
Land being subject, now or at any time, to a Native Title
Claim.
9.2 LAND "AS IS"
The Purchaser must accept the Railways Land, the Parkeston Land and the
Xxxx Township Land "as is" and in their present state of repair and
condition and subject to all latent and patent defects of title and any
infestation or dilapidation or any environmental hazard, pollution or
contamination or other defects.
9.3 LEASEHOLD TITLE
The Purchaser is not entitled to any statement or abstract of title in
relation to the Ground Lease, the Parkeston Licence or the Xxxx
Township Licence.
9.4 FURTHER INFORMATION
The Purchaser and the Guarantor must provide to the Commonwealth any
further information required by it relating to the Purchaser as lessee
or licensee including without limitation up to date financial
information relating to the Purchaser and the Guarantor.
10. PARKESTON LAND
10.1 APPLICATION OF CLAUSE
This clause will apply if, at Completion, there are no separate title
deeds for the whole of the Parkeston Land.
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10.2 SUBDIVISION OF LAND
As soon as possible after the date of this agreement, the Commonwealth
shall take all necessary steps to create by way of subdivision separate
title to the Parkeston Land.
10.3 TRANSFER OF PARKESTON LAND
As soon as the Commonwealth is in receipt of a separate title deed for
the Parkeston Land, the Commonwealth shall prepare and execute all
necessary documents to effect the transfer of that land and all
fixtures and fittings on that land to the Company or such other wholly
owned subsidiary of the Purchaser as the Purchaser may direct in
writing. The Commonwealth may discharge its obligation under this
clause by delivery to the Company of a transfer of the Parkeston Land
or by Ministerial Declaration under section 67AE of the ANRC Act.
10.4 PURCHASER TO ASSIST
The Purchaser must provide any assistance the Commonwealth may require
to fulfil its obligation under this clause 10.
10.5 PARKESTON LICENCE
Until subdivision and transfer can be effected in accordance with this
clause, the Purchaser will have access to and use of the Parkeston Land
and all fixtures and fittings on that land pursuant to the Parkeston
Licence.
11. XXXX TOWNSHIP
11.1 APPLICATION OF CLAUSE
This clause will apply if, at Completion, there are no separate title
deeds for the whole of the Xxxx Township Land.
11.2 SUBDIVISION OF LAND
As soon as possible after the date of this agreement, the Commonwealth
shall take all reasonable steps to create by way of subdivision
separate title or titles to the Xxxx Township Land.
11.3 TRANSFER OF XXXX TOWNSHIP LAND
As soon as the Commonwealth is in receipt of a separate title deed for
the Xxxx Township Land, the Commonwealth shall prepare and execute all
necessary documents to effect the transfer of that land and all
fixtures and fittings on that land to the Company or such other wholly
owned subsidiary of the Purchaser as the Purchaser may direct in
writing. The Commonwealth may discharge its obligation under this
clause by delivery to the Company of a transfer of the Xxxx Township
Land or by Ministerial Declaration under section 67AE of the ANRC Act.
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11.4 PURCHASER TO ASSIST
The Purchaser shall provide any assistance the Commonwealth may require
to fulfil its obligation under this clause 11.
11.5 XXXX TOWNSHIP LICENCE
Until subdivision and transfer can be effected in accordance with this
clause, the Purchaser shall have access to and use of the Xxxx Township
Land and all fixtures and fittings on that land pursuant to the Xxxx
Township Licence.
12. ENVIRONMENTAL MATTERS
12.1 DISCLOSURE
The Commonwealth specifically discloses that the Railways Land, the
Parkeston Land and the Xxxx Township Land are affected by contamination
as described in the Environmental Reports and that the following
contaminants have been identified there, or may be there:
(a) heavy metals, including copper, zinc, chromium, lead and
cadmium;
(b) total petroleum hydrocarbons;
(c) monocyclic aromatic hydrocarbons, including benzene, toluene,
ethyl benzene and xylene;
(d) polycyclic aromatic hydrocarbons (PAHs) and a range of heavy
metals associated with coal ash; and
(e) weedicides containing OCPs and arsenic.
12.2 ACKNOWLEDGMENTS
The Purchaser acknowledges that copies of the Environmental Reports
have been made available in the data room prior to entering into this
agreement.
12.3 NO WARRANTY AS TO ENVIRONMENTAL MATTERS OR REPORT
The Commonwealth does not:
(a) represent or warrant the accuracy, validity, enforceability or
completeness of the matters set out in any Environmental
Report; or
(b) make any representation or warranty about any pollution,
contamination or chemical substances whatever.
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12.4 REMEDIATION PROGRAMS
(a) The Remediation Programs will apply to land which forms all or
part of the Railways Land, the Parkeston Land or the Xxxx
Township Land.
(b) The Commonwealth shall, as soon as is practicable, inform the
Purchaser of any remediation of the Railways Land, the
Parkeston Land or the Xxxx Township Land that is to commence
before Completion. If remediation of any of that land is to
commence after Completion, the Commonwealth shall give the
Company 30 days notice of when such remediation will commence
and shall specify in that notice the time it is expected to
take to carry out and complete the remediation process in
respect of that land.
(c) Neither the Purchaser nor the Company may object to the
carrying out of, or the manner of carrying out, the
remediation of the Railways Land, the Parkeston Land or the
Xxxx Township Land. If such remediation is carried out after
Completion, the Company shall co-operate (including without
limitation by providing reasonable access) to ensure that the
remediation can be duly carried out and completed.
12.5 NOTIFICATION OF COMPLETION OF REMEDIATION PROGRAM
The Commonwealth shall notify the Purchaser when each of the
Remediation Programs have been completed and shall provide to the
Purchaser copies of:
(a) the agreement of the Environmental Protection Authority to the
effect that the methodologies applied in carrying out and
completing the Remediation Programs were reasonable to achieve
the purposes of the Remediation Programs; and
(b) the certification by environmental consultants appointed by
the Commonwealth (and not involved in formulating or carrying
out the Remediation Programs) that the processes adopted in
implementing the Remediation Programs were reasonable to
achieve the purpose and desired outcome of the Remediation
Programs.
12.6 PURCHASER NOT TO EXACERBATE CONTAMINATION
The Purchaser shall not, and shall procure that the Company does not,
do any act which:
(a) exacerbates the extent of contamination or pollution of the
Railways Land, the Parkeston Land or the Xxxx Township Land
which exists at Completion; or
(b) directly or indirectly causes, allows, facilitates or
exacerbates the contamination or pollution of other land, air
or water as a result of the contamination of the Railways
Land, the Xxxx Township Land or the Parkeston Land which
exists at Completion.
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12.7 RELEASE AND INDEMNITY BY THE COMMONWEALTH
The Commonwealth shall be liable for, and shall, to the full extent
permitted by law, release and indemnify the Purchaser from and against:
(a) any obligation, duty or liability to any other person in
respect of any:
(i) contamination of the Railways Land, the Parkeston
Land and the Xxxx Township Land which exists at
Completion but, for the avoidance of doubt, not to
the extent such contamination is exacerbated by a
breach of clause 12.6 by the Purchaser;
(ii) contamination or pollution of other land, air or
water which exists at Completion as a result of
contamination of the Railways Land, the Parkeston
Land or the Xxxx Township Land but, for the avoidance
of doubt, not to the extent such contamination or
pollution is exacerbated by a breach of clause 12.6
by the Purchaser; and
(iii) contamination or pollution of other land, air or
water which occurs or arises after Completion as a
result of contamination of the Railways Land, the
Parkeston Land or the Xxxx Township Land which exists
at Completion but, for the avoidance of doubt, not to
the extent such contamination or pollution is caused
by or arises as a result of a breach of clause 12.6
by the Purchaser,
including, without limitation, compliance with any clean up
costs or valid and effective notices issued by the Director of
Environmental Management or a council officer; and
(b) any Loss or Claim arising out of:
(i) any such obligation, duty, liability, order or clean
up cost; or
(ii) any such contamination or pollution of the Railways
Land, the Parkeston Land and the Xxxx Township Land
or of other land, air or water other than to the
extent such contamination or pollution is caused by
or arises as a result of the Purchaser's breach of
clause 12.6.
12.8 EXTENT OF COMMONWEALTH LIABILITY
Notwithstanding anything else contained in this clause 12, the
Commonwealth is under no obligation to remediate any land to a standard
other than that required having regard to:
(a) the environmental standards applicable generally in the State
of South Australia at Completion; and
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(b) the purpose for which the land in question is used at the date
of this agreement (or the date on which that land was last
used).
12.9 RELEASE AND INDEMNITY BY PURCHASER
Upon Completion, the Purchaser shall be liable for and shall, to the
full extent permitted by law, release and indemnify the Commonwealth:
(a) from and against any obligation, duty or liability to the
Purchaser or any person claiming through or on behalf of the
Purchaser in respect of any contamination or pollution of the
Railways Land, the Parkeston Land and the Xxxx Township Land
occurring or arising after Completion (which did not exist at
Completion) and any contamination or pollution of other land,
air or water which occurs or arises as a result, including,
without limitation, compliance with any clean up costs or any
notices or orders issued by the Director of Environmental
Management or a council officer; and
(b) from and against any Loss or Claim arising out of:
(i) any such obligation, duty, liability, notice or order
or clean up cost; or
(ii) any such contamination or pollution of the Railways
Land, the Parkeston Land and the Xxxx Township Land
or of other land, air or water; and
(c) from and against any Loss or Claim by a third party to the
extent to which that Loss or Claim is attributable to, or the
amount thereof is increased as a result of, a breach by the
Purchaser of its undertaking in clause 12.6.
13. HERITAGE MATTERS
The Purchaser may be required to assume certain obligations in respect
of some or all of the buildings and other structures either owned by or
leased to the Company. Those obligations will be identified in the
Draft Conservation Master Plan and may include obligations:
(a) to assist the Commonwealth in the preparation of Conservation
Management Plans;
(b) to comply with (and monitor compliance with) and update those
Conservation Management Plans and establish management
procedures for those purposes;
(c) to provide any reasonable assistance required by the State
Heritage Council to ensure the relevant buildings and
structures identified in the Draft Conservation Master Plan
are entered in the State Register of Heritage Places;
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(d) to conduct the Business so as to ensure minimum adverse
effects on the Buildings and structures that are identified in
the Draft Conservation Master Plan or are the subject of, or
are to be the subject of, a Conservation Management Plan; and
(e) to consider any general recommendations of the Draft
Conservation Master Plan in the on-going management of the
Business.
14. EMPLOYEES AND APPRENTICES
14.1 PRIVACY ACT
The Purchaser must comply, and ensure that after Completion the Company
complies, with the provisions of the Privacy Xxx 0000 as if that Act
applied to it in relation to information held by AN or the
Commonwealth, and made available to the Purchaser or the Company,
concerning the Employees and the Apprentices, any person who has
provided or is providing services to the Company or AN in connection
with the Business.
14.2 TERMINATION OF EMPLOYEES
On the Completion Date, or on the date on which the services of the
Employees cease to be provided to the Company pursuant to the
Transitional Services Agreement, the Commonwealth must ensure that
there is paid to each of the Employees all amounts, if any, to which
the Employee is entitled by law or under any award, agreement or
arrangement, on termination of employment.
14.3 APPRENTICES
The Commonwealth must procure AN to transfer to the Company the
Indenture of Apprenticeship of each of the Apprentices who have
consented to the transfer of their Indenture of Apprenticeship
("TRANSFERRING APPRENTICES") with effect from Completion. The
Purchaser, with effect from Completion, must cause the Company to:
(a) perform and discharge all the responsibilities of AN under
those Indentures which relate to the period after Completion;
and
(b) do all things necessary under the Vocational Education,
Employment & Training Act 1994 (South Australia) and such
other statutes as may be relevant to validly effect such
transfer.
15. WARRANTIES
15.1 COMMONWEALTH'S WARRANTIES
The Commonwealth warrants that, except as set out in schedule 4 to the
knowledge of the Commonwealth, each of the statements set out in
schedule 5 (each as a separate warranty and representation) is true,
complete and accurate, both at the
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date of this agreement and at the Completion Date (except that where a
Warranty refers to only one of those dates, that Warranty is given only
as at that date).
15.2 DISCLOSURES
In addition to any disclosures contained in schedule 4, all information
included in the Information Memorandum, included in the Data Room,
given in answer to inquiry or other communication or disclosed during
the expression of interest, due diligence and tender process (including
management presentations) leading to this agreement is taken to have
been disclosed to the Purchaser for the purpose of this agreement and
any Warranty.
15.3 TIME BAR FOR CLAIMS
No proceedings under or in connection with this agreement for any Loss
or Claim (including without limitation under any Warranty) may be
commenced or maintained by the Purchaser unless on or before 31
December 1998 the Purchaser gives the Commonwealth written notice of
intention giving full particulars of the amount claimed (then known to
the Purchaser) and the facts and circumstances (then known to the
Purchaser) allegedly giving rise to the proceedings and the Loss or
Claim.
15.4 MINIMUM QUANTUM OF CLAIMS
The Purchaser may not first make a claim against the Commonwealth under
or in connection with this agreement unless and until the aggregate of
those claims exceeds or has already exceeded $3 million.
15.5 MAXIMUM LIABILITY
The maximum liability of the Commonwealth for claims made by the
Purchaser in respect of any Loss or Claim under or in connection with
this agreement is an amount equal to 20% of the Purchase Price.
15.6 PURCHASER'S WARRANTIES
The Purchaser and the Guarantor warrant and represent to the
Commonwealth, as an inducement to the Commonwealth to enter into this
agreement and to sell the Shares, and it is a condition of this
agreement that, at the date of this agreement:
(a) the execution and delivery of this agreement has been properly
authorised by all necessary corporate action of the Purchaser
and the Guarantor;
(b) the Purchaser and the Guarantor have full corporate power and
lawful authority to execute and deliver this agreement and to
consummate and perform or cause to be performed their
respective obligations under this agreement;
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(c) this agreement constitutes a legal, valid and binding
obligation on the Purchaser and the Guarantor enforceable in
accordance with its terms by appropriate legal remedy;
(d) except as contemplated by clause 4 this agreement does not
conflict with or result in the breach of or default under any
provision of its memorandum and articles of association or
constituent documents or any material term or provision of any
agreement or deed or any writ, order or injunction, judgment,
law, rule or regulation to which it is a party or a subject or
by which it is bound;
(e) there are no actions, claims, proceedings or investigations
pending or threatened against it or to its knowledge by,
against or before any person which may have a material effect
on the sale and purchase of the Shares in accordance with this
agreement;
(f) except as contemplated by clause 4, the Purchaser, and each
person to whom section 26 or 26A of FATA applies in relation
to the acquisition of the Shares by the Company, have complied
with each of those sections;
(g) the information supplied by the Purchaser or any employee,
agent or adviser on behalf of the Purchaser to the
Commonwealth in connection with any expression of interest or
tender has been and is true, complete and accurate; and
(h) there is no issue, matter, fact or thing that has not been
disclosed by the Purchaser or the Guarantor that, if
disclosed, would have an adverse effect on the Commonwealth's
ability to fulfil condition precedent number 9 in schedule 3.
15.7 PURCHASER RELIES ON OWN JUDGMENT
The Purchaser acknowledges that in tendering to acquire the Shares and
entering into this agreement:
(a) it has undertaken due diligence in relation to the Assets and
the Business and has satisfied itself in relation to all
matters arising during the course of that due diligence;
(b) it has fully informed itself and relied on its own judgment
and has not, except as provided in this agreement, relied on
any conduct of, or statements, warranties or representations
made by the Commonwealth, its employees or agents; and
(c) it remains bound by the provisions of the Confidentiality
Agreement.
15.8 LICENCES AND PERMITS
The Purchaser acknowledges that it is required to:
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(a) satisfy itself that all licences, consents, rights, permits
and certificates required to conduct the Business (as referred
to in part 5 of schedule 6) have been obtained;
(b) satisfy itself that the vesting of the Assets pursuant to a
Ministerial Declaration is effective to transfer the benefit
of such licence, consent, right, permit or certificate to the
Purchaser having regard to the provisions of the legislation
under which the licence, consent, right, permit or condition
is issued or the terms and conditions of such licence,
consent, right, permit or condition; and
(c) if such vesting is not effective to transfer the relevant
benefit, make and pursue any application necessary to obtain
the benefit of such a licence, contract, right, permit or
certificate.
16. GUARANTEE
16.1 DEFINITIONS
In this clause 16:
"GUARANTEED MONEYS" mean any Guaranteed Obligations relating to payment
(including payment by way of damages); and
"GUARANTEED OBLIGATIONS" mean the obligations of the Purchaser in
respect of payment of the Purchase Price which the Purchaser covenants
to observe and perform under this agreement.
16.2 GUARANTEE
The Guarantor unconditionally and irrevocably guarantees to the
Commonwealth the due observance and performance by the Purchaser of the
Guaranteed Obligations.
16.3 INDEMNITY
If the Purchaser defaults in its observance and performance of the
Guaranteed Obligations, the Guarantor must indemnify the Commonwealth
against any Loss or Claim.
Without limiting the generality of the foregoing:
(a) if the Purchaser defaults in payment of the Guaranteed Moneys,
the Guarantor must pay those moneys on demand to or as
directed by the Commonwealth; and
(b) the Guarantor unconditionally and irrevocably indemnifies the
Commonwealth against any loss which it may suffer because the
whole or any part of the Guaranteed Moneys is not recoverable
from the Purchaser.
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16.4 PRINCIPAL OBLIGATION
The Guarantor's liability under this clause is a principal obligation
and is not ancillary or collateral to any other right or obligation.
16.5 CONTINUING GUARANTEE
This is a continuing guarantee. The Guarantor's liability is absolute
and unconditional and is not affected by anything at all which, but for
this provision, might operate to relieve it of its obligations.
16.6 NO RIGHT OF SUBROGATION
Until the Guaranteed Moneys have been irrevocably paid in full, the
Guarantor may not exercise any right of subrogation to the Commonwealth
and may not exercise any rights as surety in competition with the
Commonwealth.
16.7 WINDING UP OF THE PURCHASER
Until the Guaranteed Moneys have been irrevocably paid in full, if the
Purchaser becomes bankrupt or is wound up, the Commonwealth may prove
for all moneys which the Guarantor may have paid under this clause and
need not apply, in discharge of the Guaranteed Moneys, any moneys which
it receives.
17. RESOLUTION OF DISPUTES
17.1 PARTIES TO USE REASONABLE EFFORTS TO RESOLVE DISPUTES
The Commonwealth and the Purchaser must use all reasonable efforts in
good faith to resolve any disputes which arise between them in
connection with this agreement.
17.2 DISPUTE NOTICE
A party may give the other party a notice of dispute ("DISPUTE NOTICE")
in connection with this agreement. Following the giving of a dispute
notice, the dispute shall initially be referred to a Senior Officer of
the Commonwealth (whose identity must be notified to the Purchaser as
soon as practicable after Completion) and a director of the Purchaser
who will endeavour to resolve the dispute within 10 Business Days of
the giving of the dispute notice.
17.3 SECRETARY AND DIRECTOR TO RESOLVE DISPUTE
If the dispute is not resolved within 10 Business Days of the giving of
the dispute notice, then the dispute shall be referred to the Secretary
of the Department of Transport and Regional Development of the
Commonwealth and a director of the Purchaser, who shall use reasonable
endeavours to resolve the dispute within a further 5 Business Days or
such other period as is agreed by the Parties.
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17.4 MEDIATION
If the Parties have not been able to resolve the dispute within 15
Business Days of the giving of the dispute notice, then either party
may refer the dispute to mediation, to be conducted:
(a) by a mediator mutually selected by the Parties (or failing
agreement, selected by the President of the New South Wales
Law Society) from the advanced panel of LEADR (Lawyers Engaged
in Alternative Dispute Resolution); and
(b) under the Institute of Arbitrators Australia Rules for
Mediation of Disputes.
17.5 LEGAL PROCEEDINGS
In the event that the dispute, controversy or claim has not been
resolved within 45 Business Days (or such other period as agreed
between the Parties in writing) after the giving of the dispute notice,
then any party may, if it wishes, commence legal proceedings despite,
or without, any reference to mediation.
17.6 DISPUTES OVER ASSETS
Despite any other clause (except clause 8.3 in relation to Specified
Locomotives) to the contrary, any dispute between the Purchaser and
either the Commonwealth or any other Purchaser and either the
Commonwealth or any other purchaser of any business unit of AN, as to
whether a specific thing constitutes an Asset (other than, in the case
of an Active Wagon, a wagon which is the subject of a notice under
clause 8.4) shall be determined by the Minister for Finance. Each party
to or person interested in that dispute shall be entitled to make
submissions to the Minister in relation to the dispute. The decision of
the Minister shall be final and binding on the parties. Nothing in this
clause applies to an Asset which is a Specified Locomotive.
18. MINIMUM SERVICES
18.1 COMMITMENT
The Purchaser shall, in conducting the Business, make available the
Minimum Services.
.18.2 COVENANT TO OBSERVE GROUND
The Purchaser agrees that it will procure that the Company observes and
performs the provisions of the Ground Lease in so far as they relate to
the provision of the Minimum Services.
19. CAPITAL EXPENDITURE
19.1 CAPITAL EXPENDITURE
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For the purposes of this clause 19, the expression "CAPITAL
EXPENDITURE" means expenditure incurred in connection with the
operation of the Business in respect of:
(a) the acquisition of locomotives and wagons (including Leigh
Creek coal wagons);
(b) the major overhaul including regearing of locomotives and
wagons;
(c) the upgrading including resleepering of track infrastructure;
and
(d) any other item of a capital nature as determined in accordance
with generally accepted accounting principles.
19.2 CAPITAL EXPENDITURE COMMITMENT
During the period from the Completion Date until 31 December 2002, the
Purchaser must undertake or cause to be undertaken (by the Company or a
third party) Capital Expenditure totalling not less than $52,300,000.
The Purchaser undertakes to ensure that any maintenance or
refurbishment of locomotives and wagons is carried out by or on behalf
of the Company in South Australia.
19.3 AUDIT OF CAPITAL EXPENDITURE COMMITMENT
(a) The Purchaser shall procure there is provided to the
Commonwealth within 3 months after the end of each financial
year of the Company, commencing with the first full financial
year ending after the Completion Date, a statement by the
Company's auditor certifying the Capital Expenditure
undertaken or caused to be undertaken by the Company during
the relevant year (or in the case of the first certificate,
during the period from the Completion Date to the end of the
first full financial year ending after the Completion Date.
(b) The Purchaser shall procure that the Company provides to the
Commonwealth, within 3 months after 31 December 2002, a
statement certified by the Company's auditors specifying the
aggregate capital expenditure undertaken by the Company
pursuant to clause 19.2.
19.4 DEFERRAL OF CAPITAL EXPENDITURE
If in the opinion of the Purchaser:
(a) the Purchaser is unlikely to be able to comply with its
obligations under clause 19.2;
(b) that inability is caused substantially by factors beyond the
reasonable control of the Purchaser or the Company (such as,
without limitation,
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adverse seasonal conditions or loss of markets by or
insolvency of customers); and
(c) the Purchaser gives notice to the Commonwealth to this effect
within one month of the delivery to the Commonwealth of the
auditors certificate delivered after 31 December 2001,
the Commonwealth agrees with the Purchaser that it will negotiate with
the Purchaser in good faith with a view to extending the period
referred to in clause 19.2 by such period as is reasonable having
regard to the circumstances at that time (including, without
limitation, the impact of the factors referred to in sub paragraph (b)
on the Company's business)
19.5 CAPITAL EXPENDITURE ACCOUNT
If the Purchaser has not complied with its obligations under clause
19.2 by 31 December 2002 (or such later date as the parties may agree
pursuant to clause 19.4) then the Purchaser shall request the Company's
auditor to calculate the amount equal to the difference between the
capital expenditure undertaken (as evidenced in relevant statements
under clause 19.3(a) and (b)) and the amount specified in clause 19.2
and shall:
(a) pay the amount into a trust account or controlled moneys
account operated by a solicitor acceptable to the
Commonwealth. The Purchaser may only withdraw moneys
(including interest) from the account to be used for
expenditure required by clause 19.2; or
(b) at the Commonwealth's election, pay the amount directly to the
Commonwealth.
19.6 INDEPENDENT AUDIT
(a) If the Commonwealth is not reasonably satisfied with the
auditor's statement in relation to yearly capital expenditure
(pursuant to clause 19.3(a)) or the auditor's certificate in
relation to compliance with clause 19.2 (pursuant to clause
19.3(b)):
(i) the parties may agree to appoint jointly but at the
cost of the Commonwealth, or failing agreement
(ii) the Commonwealth may appoint at its cost,
an independent auditor to determine the amount of Capital
Expenditure which has been undertaken by the Company in
accordance with clause 19.2.
(b) The Purchaser shall ensure that the auditor appointed under
clause 19.6(a) is provided with reasonable access and
assistance required by that auditor in connection with the
review of the Capital Expenditure undertaken by the Company.
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(c) If the independent auditor is appointed under sub paragraph
(a) (i) above, the results of the audit are determinative of
the amounts of Capital Expenditure undertaken by the Company.
(d) If the independent auditor is appointed under sub paragraph
(a) (ii) above, and the parties do not accept the decision of
that auditor, the issue shall be resolved by an independent
expert appointed on the application of the Commonwealth by the
President for the time being of the Institute of Chartered
Accountants, whose decision will be determinative of the
amounts of Capital Expenditure undertaken by the Company.
20.1 STANDARDISATION OF PINNAROO LINE
The Purchaser and the Guarantor must, and must procure that the Company
does:
(a) not object to the Commonwealth carrying out and completing, or
procuring to be carried out and completed, the works
contemplated by clause 10 of the Railways Agreement; and
(b) provide such access to the Railways Land as the Commonwealth
requires for the purposes referred to in paragraph (a).
21. CONFIDENTIALITY
21.1 CONFIDENTIALITY DEED
Subject to the clause 19.2, the existence and terms of this agreement
are taken to be confidential information to which the Confidentiality
Agreement applies.
21.2 PUBLICITY
The Purchaser may not make any press or other announcements or releases
relating to this agreement and the transactions the subject of this
agreement without the approval of the Commonwealth to the form and
manner of the announcement or release unless that announcement or
release is required to be made by law or by a stock exchange. Nothing
in this clause 19.2 shall prohibit the Commonwealth or the Purchaser
from disclosing to its employees and officers of it the fact of this
agreement and its subject matter but any announcement or release by
those employees or officers will be considered an announcement or
release by the Purchaser to which this clause applies.
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22. DISCLAIMER
22.1 DISCLAIMER
The Purchaser and the Guarantor on their own behalf and on behalf of
the Company:
(a) acknowledge that the Sale Information provided to the
Purchaser has not been verified or checked by the
Commonwealth, AN, or any Associated Person, or independently
audited;
(b) agree that they have made their own assessment of all the Sale
Information;
(c) agree that they have independently satisfied themselves as to
the accuracy of, and conducted their own inquiries,
investigation, analysis and appraisal of, and sought
appropriate professional advice about:
(i) any information, statements, representations or
forecasts contained in any information memorandum;
(ii) the regulatory regime for each Business;
(iii) the financial condition, business affairs, and
operations of each Business;
(iv) the assumptions, uncertainties and contingencies
which may affect the future business of any Business
or any forecasts relating to any Business; and
(v) the impact that a variation in future outcomes may
have on any Business;
(d) acknowledge that, subject to any law to the contrary, and to
the maximum extent permitted by law, the Commonwealth, AN and
each Associated Person each disclaim all liability for any
loss or damage (whether foreseeable or not) suffered by any
other person acting on any part of the Sale Information,
whether or not the loss or damage arises in connection with
any negligence, default or lack of care on the part of the
Commonwealth, AN, an Associated Person or any other person or
any misrepresentation or any other cause;
(e) agree to be bound by any disclaimer contained in or
accompanying any Sale Information; and
(f) waive all claims or rights of action against the Commonwealth,
AN and each Associated Person in relation to the conduct of
the process relating to the calling for expressions of
interest and the lodging of tenders.
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22.2 QUALITY OF INFORMATION
The Purchaser and the Guarantor on their own behalf and on behalf of
the Company jointly and severally release each of the Commonwealth, AN,
the Companies and every Associated Person to the fullest extent
permitted by law from and against all claims, actions, damages remedies
and matters arising from or which may arise from or in connection with
the provision of, or any purported reliance on, the Sale Information or
which arises from or which may arise from any other aspect of the
conduct of the process relating to the calling for expressions of
interest and the lodging of tenders and the Purchaser and the Guarantor
agree on their own behalf and on behalf of the Company that neither the
Commonwealth, AN, nor any Associated Person:
(a) makes or gives any representation, assurance or warranty,
express or implied, that the Sale Information or any part of
the Sale Information is or will be current, accurate, reliable
or complete;
(b) is under any obligation to notify the Purchaser or any other
person, or to provide any further information to the Purchaser
or any other person, if they or any of them become aware of an
inaccuracy, incompleteness or change in the Sale Information;
(c) accepts any responsibility to inform any Purchaser or any
other person of any matter arising after the preparation of
any information memorandum;
(d) is under any obligation or duty in relation to the Sale
Information, either to the Purchaser, or to any person
obtaining Sale Information from the Purchaser;
(e) professes any expertise, or represents any willingness to
apply any expertise, for the benefit of the Purchaser;
(f) accepts any liability for the skill or care possessed or
exercised (or purportedly possessed or exercised) by any
person or expert or valuer whose report or work has been used
as a source of Sale Information;
(g) accepts any liability for the selection of any expert or
valuer or of any source of Sale Information;
(h) makes any express or implied representation or warranty that
any estimate or forecast will be achieved or that any
statements to future matters will prove correct;
(i) represents that the assumptions on which any forecast is based
are accurate, complete or reasonable;
(j) (except so far as liability under any statute cannot be
excluded) accepts no responsibility arising in any way for
errors in, or omissions from, the Sale Information, or in
negligence;
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(k) accepts any liability for any loss or damage suffered by any
person as a result of that person or any other person placing
any reliance on any Sale Information; or
(l) assumes any duty of disclosure or fiduciary duty to any
interested party.
22.3 ASSOCIATED PERSONS
Clauses 20.1 and 20.2 of this agreement are intended to benefit and are
to be interpreted as benefiting AN and each of the Associated Persons
and to be enforceable by AN and each of the Associated Persons. To that
extent, the Commonwealth has entered this agreement on its own behalf
and on behalf of AN and each Associated Person.
23. TRANSFER OF OWNERSHIP OF COMMONWEALTH RECORDS
23.1 TRANSFER OF OWNERSHIP OF COMMONWEALTH RECORDS
Where the Australian Archives authorises the transfer of a Commonwealth
Record to the Company, the Commonwealth Record transfers to the Company
at Completion. The Purchaser must ensure that the Company retains and
does not destroy the Commonwealth Record for the period specified in
the relevant Records Disposal Authority or Records Arrangement.
23.2 COMMONWEALTH ACCESS TO COMMONWEALTH RECORDS
During the period specified in the relevant Records Disposal Authority
or Records Arrangement:
(a) the Purchaser must itself comply with, and must ensure that
the Company complies with, each relevant Records Disposal
Authority and Records Arrangement;
(b) the Commonwealth is entitled to have access to the
Commonwealth Record at any time on giving five Business Days'
notice and may:
(i) view the Commonwealth Record at the premises of the
Company;
(ii) copy, and retain a copy of, the Commonwealth Record;
and
(iii) if necessary in the reasonable opinion of the
Commonwealth, require the Company or the Purchaser to
produce the original Commonwealth Record; and
(c) the Purchaser shall provide, and ensure that the Company
provides, such assistance and facilities as the Commonwealth
may reasonably require for and during such access.
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40.
23.3 INTELLECTUAL PROPERTY IN COMMONWEALTH RECORDS
The Commonwealth grants, or shall procure that AN grants, to the extent
of its copyright, an irrevocable, royalty-free, worldwide,
non-exclusive licence (including the right to sub-license) to the
Company and to the Purchaser to use, reproduce, adapt and exploit, for
the purposes of the Business, any material contained in a Commonwealth
Record in the possession of the Company pursuant to this agreement
provided that nothing in this clause is to be interpreted as:
(a) transferring from the Commonwealth to the Company or to the
Purchaser any copyright in any material embodied in the
Commonwealth Records;
(b) granting any licence or other right to the Company or to the
Purchaser in relation to any software or other technology and
related user and technical documentation used to store a
record; or
(c) a warranty or representation that the Commonwealth owns the
copyright in any or all of the Commonwealth Records.
24. COSTS AND STAMP DUTY
24.1 COSTS GENERALLY
Except to the extent specified in clause 24.2, each party must bear and
is responsible for its own costs in connection with the preparation,
execution, completion and carrying into effect of this agreement.
24.2 STAMP DUTY GENERALLY
The Purchaser must bear and is responsible for all stamp duty on or in
respect of:
(a) this agreement; and
(b) the instruments of transfer referred to in clause 6.3(a)(ii).
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41.
24.3 NO EXEMPTION FROM DUTY
Subject to further negotiation with the State Government of South
Australia, it is the intention of the Commonwealth that the Minister
for Finance will by written instrument under section 67AS(2) of the
ANRC Act declare that stamp duty will be levied on the instruments
referred to in clause 24.2 and will not make any other such
declaration. The Purchaser acknowledges that the making of such a
declaration will not give rise to a breach by the Commonwealth of any
term express or implied under this agreement or create any rights in
the Purchaser. Nothing in this clause xxxxxxx the Minister in the
exercise of his powers or discretions.
25. NOTICES
25.1 METHOD OF GIVING NOTICES
A notice, consent, approval or other communication (each a "NOTICE")
under this agreement must be in writing and must be signed by or on
behalf of the person giving it, addressed to the person to whom it is
to be given and:
(a) delivered to that person's address;
(b) sent by pre-paid mail to that person's address; or
(c) transmitted by facsimile to that person's address.
25.2 TIME OF RECEIPT
A Notice given to a person in accordance with this clause is treated as
having been given and received:
(a) if delivered to a person's address, on the day of delivery if
a Business Day, otherwise on the next Business Day;
(b) if sent by pre-paid mail, on the third Business Day after
posting; or
(c) if transmitted by facsimile to a person's address and a
correct and complete transmission report is received, on the
day of transmission if a Business Day, otherwise on the next
Business Day.
25.3 ADDRESS OF PARTIES
For the purposes of this clause the address of a person is the address
set out below or another address of which that person may from time to
time give notice to each other person:
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42.
THE COMMONWEALTH:
Address: The Chief Executive Officer
Office of Asset Sales
Xxxxx 0
000 Xxxxxxxxxxx Xxxxxx
XXXXXXX XXX 0000
Facsimile: (00) 000 0000
Attention: Xxxxxxx Xxxxxxxxxx
THE PURCHASER:
Address: The Managing Director,
Genesee & Wyoming Australia Pty Limited
c/- Xxxxxx Xxxxxxxx
00 Xxxxx Xxxxxx
XXXXXXXX 0000
Facsimile: (00) 0000 0000
Attention: Xxxxxxx X. Xxxxxx or Xxxx Xxxxxx Xxxxx
THE GUARANTOR:
Address: The Chief Financial Executive
Genesee & Wyoming Inc.
00 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx
XXXXXX XXXXXX OF AMERICA
Facsimile: (000) 000 0000
Attention: Xxxx Xxxxxxxx
26. GENERAL
26.1 TIME OF THE ESSENCE
Time is of the essence in the performance of this agreement and,
accordingly the failure of a party to perform any of its obligations
under this agreement on or before the time specified in this agreement
for that performance confers on the party which was to receive the
benefit of that performance the right, in addition to any other right,
to terminate this agreement.
26.2 AMENDMENT
This agreement may only be amended or supplemented in writing, signed
by the parties.
26.3 WAIVER
The non-exercise of or delay in exercising any power or right of a
party does not operate as a waiver of that power or right, nor does any
single exercise of a power or right preclude any other or further
exercise of it or the exercise of any other.
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43.
power or right. A power or right may only be waived in writing, signed
by the party to be bound by the waiver.
26.4 ENTIRE AGREEMENT
This agreement is the entire agreement of the parties on the subject
matter. The only enforceable obligations and liabilities of the parties
in relation to the subject matter are those that arise out of the
provisions contained in this agreement. All representations,
communications and prior agreements in relation to the subject matter
are merged in and superseded by this agreement.
26.5 SEVERABILITY
Any provision in this agreement which is invalid or unenforceable in
any jurisdiction is to be read down for the purposes of that
jurisdiction, if possible, so as to be valid and enforceable, and is
otherwise capable of being severed to the extent of the invalidity or
unenforceability, without affecting the remaining provisions of this
agreement or affecting the validity or enforceability of that provision
in any other jurisdiction.
26.6 ASSIGNMENT
Neither party may assign or transfer any of its rights or obligations
under this agreement without the prior consent in writing of the other
party.
26.7 PRESERVATION OF RIGHTS
Termination of this agreement for any reason shall not extinguish or
otherwise affect:
(a) any rights of any party against any other party which:
(i) accrued prior to the time of termination; or
(ii) otherwise relate to or may arise at any future time
from any breach or non-observance of obligations
under this agreement which arose prior to the time of
termination; or
(b) the provisions of this agreement, which by their nature
survive termination, including clauses 1, 3, 21, 22, 24, 25,
26 or 27.
26.8 NO MERGER
No provision of this agreement:
(a) merges on or by virtue of Completion; or
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44.
(b) is in any way modified, discharged or prejudiced by reason of
any investigations made or information acquired by or on
behalf of the Purchaser or any of the conditions specified in
clause 4.1 being waived.
26.9 FURTHER ASSURANCE
Each party must do, sign, execute and deliver and must procure that
each of its employees and agents does, signs, executes and delivers,
all deeds, documents, instruments and acts reasonably required of it or
them by notice from another party to effectively carry out and give
full effect to this agreement and the rights and obligations of the
parties under it, both before and after Completion.
26.10 COUNTERPARTS
This agreement may be executed in any number of counterparts and all of
those counterparts taken together constitute one and the same
instrument.
26.11 ATTORNEYS
Each attorney who executes this agreement on behalf of a party declares
that the attorney has no notice of the revocation or suspension by the
grantor or in any manner of the power of attorney under the authority
of which the attorney executes this agreement and has no notice of the
death of the grantor.
26.12 JOINT AND SEVERAL LIABILITY OF CONSORTIUM MEMBERS
The Consortium Members shall be jointly and severally liable for or in
respect of the Purchaser's obligations under this agreement.
27. LAW AND JURISDICTION
27.1 GOVERNING LAW
This agreement is governed by the law in force in the Australian
Capital Territory.
27.2 SUBMISSION TO JURISDICTION
The parties submit to the non-exclusive jurisdiction of the courts of
the Australian Capital Territory and any courts which may hear appeals
from those courts in respect of any proceedings in connection with this
agreement.
27.3 PROCESS AGENT
The Guarantor appoints the Purchaser as its agent for the service of
process in relation to any proceedings arising out of this agreement.
EXECUTED as an agreement.
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45.
SIGNED for and on behalf of the )
COMMONWEALTH OF AUSTRALIA by )
the Minister for Transport and Regional )
Development in the presence of: )
)
)
/s/ Xxxxx Somervaille
---------------------------
Witness /s/ Xxxx Xxxxxx
---------------------------------
Name (printed): Xxxxx Somervaille Name (printed): Xxxx Xxxxxx
SIGNED for and on behalf of GENESEE & )
WYOMING AUSTRALIA PTY LIMITED )
by its authorised officer )
)
)
in the presence of:
/s/ Xxxxx X. Xxxxx
----------------------------
Witness /s/ Xxxxxxx X. Xxxxxx
Name (printed): Xxxxx X. Xxxxx ---------------------------------
Authorised Officer
Name (printed): Xxxxxxx X. Xxxxxx
SIGNED for and on behalf of GENESEE & )
WYOMING INC. )
by its authorised officer )
)
in the presence of: )
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
/s/ Xxxxx X. Xxxxx Authorised Officer
----------------------------- Name (printed): Xxxxxxx X. Xxxxxx
Witness
Name (printed): Xxxxx X. Xxxxx
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COMMONWEALTH OF AUSTRALIA
- AND-
AUSTRALIA SOUTHERN RAILROAD PTY LIMITED
(ACN 079 444 296)
- AND -
GENESEE & WYOMING INC
---------------------------------
AMENDMENT AGREEMENT
---------------------------------
[GRAPHIC OMITTED]
AMENDMENT AGREEMENT
CONTENTS
No. Page
1 INTERPRETATION........................................... 1
1.1 Definitions......................................... 1
1.2 Principal Agreement Definitions..................... 1
1.3 General............................................. 1
1.4 Headings............................................ 1
2 AMENDMENTS TO PRINCIPAL AGREEMENT........................ 2
2.1 Amendments.......................................... 2
2.2 Effective Date...................................... 2
2.3 Guarantor's consent................................. 2
3 GENERAL.................................................. 2
3.1 Counterparts........................................ 2
3.2 Governing Law and Jurisdiction...................... 2
3.3 Attorneys........................................... 2
SCHEDULE
Amendments to Principal Agreement........................ 3
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AMENDMENT AGREEMENT made November 7, 1997
BETWEEN:
(1) COMMONWEALTH OF AUSTRALIA (the "Commonwealth");
(2) AUSTRALIA SOUTHERN RAILROAD PTY LIMITED (ACN 079 444 296) of c/- 00 Xxxxx
Xxxxxx, Xxxxxxxx XX 0000 (the "Purchaser"); and
(3) GENESEE & WYOMING INC of 00 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 XXX
(the "Guarantor").
RECITALS:
A. Pursuant to the Principal Agreement the Commonwealth agreed to sell to the
Purchaser the Shares in the Company.
B. The parties have agreed to amend the Principal Agreement in the manner set
out in this agreement.
THE PARTIES AGREE AND DECLARE AS FOLLOWS:
INTERPRETATION
1.1 DEFINITIONS
In this agreement (including the recitals and the schedule):
"PRINCIPAL AGREEMENT" means the agreement dated 28 August 1997 between the
Commonwealth, the Purchaser (formerly known as Genesee & Wyoming Australia
Pty Limited) and the Guarantor for the sale by the Commonwealth to the
Purchaser of the Shares in the Company.
1.2 PRINCIPAL AGREEMENT DEFINITIONS
Words and expressions defined in the Principal Agreement have the same
meaning when used in this agreement (including the recitals and the
schedule).
1.3 GENERAL
The provisions of clause 1.2 of the Principal Agreement apply as if fully
set out in this agreement.
1.4 HEADINGS
In this agreement, headings are for convenience of reference only and do
not affect interpretation.
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2.
AMENDMENTS TO PRINCIPAL AGREEMENT
2.1 AMENDMENTS
The Principal Agreement is amended as set out in the schedule.
2.2 EFFECTIVE DATE
This agreement shall take effect on the Completion Date.
2.3 GUARANTOR'S CONSENT
The Guarantor consents to the amendment of the Principal Agreement as set
out in this agreement.
GENERAL
3.1 COUNTERPARTS
This agreement may be executed in any number of counterparts and all of
those counterparts taken together constitute one and the same instrument.
3.2 GOVERNING LAW AND JURISDICTION
This agreement is governed by the law in force in the Australian Capital
Territory. The parties submit to the non-exclusive jurisdiction of the
courts of the Australian Capital Territory and any courts which may hear
appeals from those courts in respect of any proceedings in connection with
this agreement.
3.3 ATTORNEYS
Each attorney who executes this agreement on behalf of a party declares
that the attorney has no notice of the revocation or suspension by the
grantor or in any manner of the power of attorney under the authority of
which the attorney executes this agreement.
EXECUTED as an agreement
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3.
SCHEDULE
AMENDMENTS TO PRINCIPAL AGREEMENT
(CLAUSE 2.1)
The Principal Agreement is amended:
1. By amending clause 24.1 by adding, at the end of the clause, a new sentence
to read as follows:
"The Commonwealth is liable for any stamp duty that may be
levied on the Xxxx Township Licence or the Parkeston Licence or
on the instruments of transfer of the Xxxx Township Land or the
Parkeston Land and, if any such duty is so levied, the
Commonwealth must reimburse the Purchaser immediately on demand
for the amount of that duty by way of adjustment to the Purchase
Price".
2. By amending Part 1 of Schedule 6 by inserting, in the first line after the
words "Railways Land", the words "the Xxxx Township Land and the Parkeston
Land".
3. In Part 7 of Schedule 6, by changing the reference to "7" at the end of
paragraph (c) to "17".
4. By the insertion of the following paragraph in Schedule 7 immediately under
the heading "Class 9 Contracts":
"The benefit and burden of the contract dated 21 December 1992
between Cubico Pty Limited and AN for the haulage of freight
between Adelaide and Perth"
5. By adding, to the last paragraph in Schedule 7 under the heading "Class 9
Contracts", the following:
"For the avoidance of doubt, the rights and obligations granted
to or incurred by AN (whether or not contained in a Contract) in
connection with its business unit known as 'Track Access'
including, without limitation, rights and obligations for the:
(a) management and pricing of access;
(b) allocation and control of train paths;
(c) operation of signalling and communication systems;
(d) repair and maintenance of Track Infrastructure;
(e) provision and maintenance of connections for private
sidings and yards;
(f) safe working of trains; and
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4.
(g) investigation of incidents,
to or along the Interstate Mainline Track are not rights and
obligations incurred in connection with the Business and
accordingly are not rights and obligations which by this
agreement or pursuant to the Ministerial Declaration set out in
Part 1 of Schedule 8 are intended to become rights and
obligations of the Company."
6. By inserting a new paragraph in Schedule 7 under the heading "Class 9
Contracts" and at the end of that section, as follows:
"Any contracts under which the only obligation remaining to be
discharged relates to the defects liability provisions or
warranty provisions in those contracts."
7. By amending Schedule 7 under the heading "Class 12 Furniture and Equipment",
by deleting the words, "All items of furniture, computer equipment and other
office equipment in all other general office areas of AN House other than",
and also deleting all of paragraphs (a), (b), (c) and (d) after those words,
and inserting the following:
"All items of furniture, computer equipment and other office equipment in
all other general office areas of AN House other than:
(a) the areas on the third floor currently occupied by SA Freight business
unit of AN;
(b) two enclosed areas on the fourth floor currently holding the computer
servers, disks, printers and communication equipment;
(c) the area on the fourth floor currently occupied by the Information
Technology section of AN which support the IT systems vested in the
Company or support the IT systems used by the Tasrail and Passenger
business units of AN to the extent they are not vested in the Company;
and
(d) all computer equipment purchased for and currently held pending
installation in premises occupied by the Passenger and Tasrail business
units of AN. "
8. By adding a new class of assets to Schedule 7 as follows:
"CLASS 15 SACBH FACILITIES
The Bulk Handling Facilities (as defined in the Railways
Agreement) which are referred to in clause 12 of the Agreement
to Lease to be entered into
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5.
between the Crown in right of the State of South Australia and
the Company prior to entering into the Ground Lease."
9. By adding a new clause 28 as follows:
"28. MOTOR VEHICLES
28.1 The Purchaser releases and fully indemnifies the Commonwealth and AN
in respect of any Loss or Claim arising out of:
(a) the use, after Completion, of any of the mobile plant, machinery
and equipment which, at Completion, carry a number plate
commencing with the letters "ZNC" and which are not part of the
light vehicle fleet (the "VEHICLES"); or
(b) the fact that the Vehicles are not registered in the name of an
entity that is not the Commonwealth or AN while those vehicles
carry the number plates commencing with the letters "ZNC".
28.2 The release and indemnity referred to in clause 28.1 applies until the
Vehicles can be registered in the name of the Puchaser or any other
entity that is not the Commonwealth or AN.
28.3 Clause 28.1 is intended to benefit, and is to be interpreted as
benefiting AN and to be enforceable by AN. To that extent, the
Commonwealth has entered this agreement on its own behalf and on
behalf of AN.
EXECUTED as an agreement.
SIGNED for and on behalf of the )
COMMONWEALTH OF AUSTRALIA by )
the duly authorised delegate )
of the Minister of State for )
Finance and Administration in )
the presence of: ) /s/ Xxxx Xxxxxxxx
/s/ Xxxxx Somervaille -------------------------------
-------------------------------------- Name (printed): Xxxx Xxxxxxxx
Witness
Name (printed): Xxxxx Somervaille
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6.
SIGNED for and on behalf of AUSTRALIA )
SOUTHERN RAILROAD LIMITED by its )
authorised officer in the presence of: )
/s/ Xxxx Xxxxxx )
.........................................
Witness /s/ Xxxxxxx X. Xxxxxx
Name (printed): Xxxx Xxxxxx .............................
Authorised Officer
Name (printed): Xxxxxxx X. Xxxxxx
SIGNED for and on behalf of GENESEE & )
WYOMING INC. by its authorised officer )
in the presence of: )
/s/ Xxxx Xxxxxx )
--------------------------------------- /s/ Xxxxxxx X. Xxxxxx
Witness -----------------------------
Name (printed): Xxxx Xxxxxx Authorised Officer
Name (printed): Xxxxxxx X. Xxxxxx
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