Summary of agreed position. Under the July 2013 Suite the trustee will, at all times during a SUFA transaction, be an independent professional trustee company, whereas under the December 2012 Suite the initial trustee was to be initially an Aurizon Network affiliate. As a result of this change in position, in the July 2013 Suite the provisions that recognised the ‘related party’ linkage between Aurizon Network and the (Aurizon Network-owned) trustee, such as Aurizon Network’s guarantee of the trustee’s obligations, have been modified or removed. Also, in order to address concerns over the action of any particular incumbent trustee, the procedure for removing the existing trustee and appointing a replacement trustee has been modified so that either the PU holders or Aurizon Network may require the existing trustee to retire without cause and be replaced by another professional trustee company. These modifications have been documented in the Subscription and Unit Holders Deed and the Trust Deed.
Summary of agreed position. For the project delivery phase of a SUFA transaction the July 2013 Suite position is the same as the December 2012 Suite position, namely that ownership of PUs is ‘stapled’ to the PU holder’s interest in the associated Umbrella Agreement, under which the PU holder holds contingent access rights. For the project delivery and operating phases of a SUFA transaction, the July 2013 Suite position is that any PU holder that seeks to transfer PUs must provide Aurizon Network with an opportunity to bid for them, and must not sell the PUs to a third party buyer if the terms of its bid are less favourable to the vendor than the terms in an Aurizon Network bid. Subject to meeting these sale process restrictions, each PU holder is free to sell its PUs to any buyer, provided that the buyer has a suitable tax status and meets standard transfer requirements. The December 2012 Suite by contrast provided that Aurizon Network’s consent was required for any transfer of PUs by a PU holder (other than Aurizon Network) during the operating phase. In summary, the July 2013 Suite provides PU holders with significantly greater freedom over the disposal of their PUs during the operating phase than was provided in the December 2012 Suite. These changes have been effected in the Subscription and Unit Holders Deed.
Summary of agreed position. Under the July 2013 Suite the trustee takes optimisation risk in respect of scope and standard, as those terms are used in Aurizon Network’s access undertaking, only if and to the extent that the trustee has expressly required such scope and standard, whether at the time of entry into a SUFA transaction or subsequently. This is a clarification of the optimisation risk allocation position in the December 2012 Suite, under which the trustee would take optimisation risk in respect of scope and standard required (but not necessarily ‘expressly required’) by the trustee. The optimisation risk allocation position in the December 2012 Suite could have been construed as referring to both: scope and standard that is implied to be required by the trustee, and scope and standard that is expressly required by the trustee. This change has been effected in the Project Management Agreement.
Summary of agreed position. As discussed above, the July 2013 Suite retains the separate ‘trigger’ for project manager replacement due to poor time performance set out in the December 2012 Suite. Under the July 2013 Suite’s ‘general breach trigger’ provisions the trustee may also engage a ‘replacement project manager’ in the event of both:
Summary of agreed position. Under the July 2013 Suite: the aspects of the project’s scope of works or procurement methodology that are outstanding at the time of entry into a SUFA transaction are to be determined subsequently the contract price threshold for a works contract be subject to the ‘Major Works Contract’ provisions is reduced, so the scope of these provisions is broadened the trustee has consent rights over certain ‘material variations’ to Major Works Contracts proposed by the project manager each of the trustee and the project manager has rights in respect of a defined process for modifying the procurement methodology and the standard of works in the event of certain ‘material changes’ in project delivery circumstances after the project manager has proposed a preferred tender for a Major Works Contract, the trustee has rights in respect of a defined process for proposing an alternative preferred tender and, if not agreed by the trustee and the project manager, determining the selected tender each of the trustee and the project manager has rights in respect of a defined process for the early termination of a Major Works Contract Each of these six principal changes is discussed in greater detail below. In respect of these changes a binding dispute resolution process applies where the project manager and the trustee do not reach agreement within defined timeframes. The July 2013 Suite also includes various consequential changes to give effect to the principal changes. Completion of the project’s scope of works or procurement methodology - Aurizon Network and the QRC Working Group expect that the parties to a SUFA transaction will seek to agree the documentation of the project’s scope of works or procurement methodology in the process of negotiating a SUFA transaction. However it may not be both possible and prudent to document certain aspects of the scope of works or the procurement methodology as at the time of entry into a SUFA transaction. If this situation arises, following execution of the SUFA documents within which those aspects will be specified as ‘Deferred Decisions’, there will be a process for determining how to address each such aspect. If the project manager and the trustee cannot reach agreement on how to address these aspects after a structured process, an expert resolution process is to apply.
Summary of agreed position. If the EIHL was terminated other than for Aurizon cause, Aurizon Network continues to be required to pay rent on the basis that prevailed prior to termination. However Aurizon Network is entitled to recover from the trustee the ‘detriment’, if any, that Aurizon Network experiences as a result of leasing formerly SUFA assets under its infrastructure lease with QTH. Aurizon Network may also
