Exhibit 99.3
_____________________________
Dated 16 December 2000
Rail Freight Corridor
Land Use Agreement
(NarrowGauge) and
Railway Infrastructure
Lease
The Xxx Xxxxxx Xxxxxxx MLC
exercising powers under section 42
of the Rail Freight System Xxx 0000
("Minister")
The Western Australian
Government Railways Commission
exercising powers under sections
8(7) and 44 of the Rail Freight
System Xxx 0000 and section 62 of
the Government Railways Xxx 0000
("Commission")
The Xxx Xxxxxxx Fairfax Court,
MLA, Treasurer, exercising power
under section 20 of the Rail Freight
System Xxx 0000 (WA)
("Treasurer")
WestNet NarrowGauge Pty Ltd
("Network Lessee")
Australia Western Railroad Pty Ltd
("Purchaser")
Australian Railroad Group Pty Ltd
("Guarantor")
Mallesons Xxxxxxx Xxxxxx
Solicitors
Xxxxx 00
Xxxxxxx Xxxx
000 Xx Xxxxxx'x Xxxxxxx
Xxxxx XX 0000
Telephone (00 0) 0000 0000
Fax (00 0) 0000 0000
DX 91049 Perth
Ref: ML 09 5002 5009
Contents Rail Freight Network Use Agreement (NarrowGauge) and Railway
Infrastructure
1 Purpose and interpretation . . . . . . . . . . . . . . . . . . . . 3
Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defined terms . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
General rules for interpretation . . . . . . . . . . . . . . . . . 29
Unreasonable interference . . . . . . . . . . . . . . . . . . . . . 31
No Better or Worse Off . . . . . . . . . . . . . . . . . . . . . . 32
Uneconomic . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
GST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Shared Obligations . . . . . . . . . . . . . . . . . . . . . . . . 33
2 Use of Corridor Land and Lease of Leased Railway Infrastructure . . 34
Use of Corridor Land . . . . . . . . . . . . . . . . . . . . . . . 34
Lease of Railway Infrastructure . . . . . . . . . . . . . . . . . . 34
Reservation to the Minister and the Commission . . . . . . . . . . 34
3 Description of Corridor Land . . . . . . . . . . . . . . . . . . . 35
Corridor Land . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Operation of Maps . . . . . . . . . . . . . . . . . . . . . . . . . 35
Adjustment of boundaries . . . . . . . . . . . . . . . . . . . . . 37
Guiding Principles . . . . . . . . . . . . . . . . . . . . . . . . 38
4 Nature of Network Lessee's interest . . . . . . . . . . . . . . . . 40
Rights and responsibilities of the Network Lessee . . . . . . . . . 40
Agreement not to be registered . . . . . . . . . . . . . . . . . . 40
No proprietary interest . . . . . . . . . . . . . . . . . . . . . . 41
Native Title . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Rights to Railway Infrastructure . . . . . . . . . . . . . . . . . 42
Existing Third Party Interests . . . . . . . . . . . . . . . . . . 42
Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Rights to notice in respect of land . . . . . . . . . . . . . . . . 44
Undertakings by Minister . . . . . . . . . . . . . . . . . . . . . 44
Material Leases . . . . . . . . . . . . . . . . . . . . . . . . . . 44
5 Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
6 Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
-i-
Obligation to pay rent . . . . . . . . . . . . . . . . . . . . . . 45
Interest on late payments . . . . . . . . . . . . . . . . . . . . . 45
7 CPI Adjustment . . . . . . . . . . . . . . . . . . . . . . . . . . 46
CPI Adjustment . . . . . . . . . . . . . . . . . . . . . . . . . . 46
8 Use of Corridor Land and Leased Railway Infrastructure . . . . . . 47
Permitted Use . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Non-Permitted Uses . . . . . . . . . . . . . . . . . . . . . . . . 48
Rights and interests in Corridor Land . . . . . . . . . . . . . . . 50
Freight Terminals on Corridor Land . . . . . . . . . . . . . . . . 50
Avon Valley Access Road . . . . . . . . . . . . . . . . . . . . . . 51
9 Rights of the Minister and State in respect of Corridor Land . . . 51
Structures may be built . . . . . . . . . . . . . . . . . . . . . . 51
Improvements . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Non-Corridor Works . . . . . . . . . . . . . . . . . . . . . . . . 52
Right to connect . . . . . . . . . . . . . . . . . . . . . . . . . 52
10 Compensation for works . . . . . . . . . . . . . . . . . . . . . . 54
Interference . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Minimise disruption . . . . . . . . . . . . . . . . . . . . . . . . 56
Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Ownership of works . . . . . . . . . . . . . . . . . . . . . . . . 56
11 Specific new projects . . . . . . . . . . . . . . . . . . . . . . . 57
Urban Passenger Network . . . . . . . . . . . . . . . . . . . . . . 57
Geraldton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
12 Relocation of Lines . . . . . . . . . . . . . . . . . . . . . . . . 58
Relocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Surrender of old Line . . . . . . . . . . . . . . . . . . . . . . . 59
Interference . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Offer of compensation . . . . . . . . . . . . . . . . . . . . . . . 60
Minimum interference . . . . . . . . . . . . . . . . . . . . . . . 60
Access for Minister . . . . . . . . . . . . . . . . . . . . . . . . 61
Ownership of works . . . . . . . . . . . . . . . . . . . . . . . . 61
Dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
New maps . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
-ii-
13 Network Lessee's works . . . . . . . . . . . . . . . . . . . . . . 62
Railway Infrastructure . . . . . . . . . . . . . . . . . . . . . . 62
New Works . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Records of New Works . . . . . . . . . . . . . . . . . . . . . . . 64
14 Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Network Lessee's obligations as to access . . . . . . . . . . . . . 64
Minister's right of access . . . . . . . . . . . . . . . . . . . . 64
Private Level Crossings and tunnels . . . . . . . . . . . . . . . . 65
15 Maintenance obligations . . . . . . . . . . . . . . . . . . . . . . 66
Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Fit for Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Initial Performance Standards . . . . . . . . . . . . . . . . . . . 66
Works to land . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Return Condition . . . . . . . . . . . . . . . . . . . . . . . . . 67
Maintenance Plan . . . . . . . . . . . . . . . . . . . . . . . . . 67
Escrow Account . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Grain Network . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Level Crossings, bridges, tunnels and pedestrian crossings . . . . 70
Review of Performance Standards . . . . . . . . . . . . . . . . . . 71
Rail Safety Act accreditation . . . . . . . . . . . . . . . . . . . 73
16 Surrender of Lines . . . . . . . . . . . . . . . . . . . . . . . . 74
Surrender right . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Compensation on termination . . . . . . . . . . . . . . . . . . . . 75
17 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
GST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
18 Force Majeure, damage and destruction . . . . . . . . . . . . . . . 80
Force Majeure notice . . . . . . . . . . . . . . . . . . . . . . . 80
Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Suspension of obligations . . . . . . . . . . . . . . . . . . . . . 81
Force Majeure ceases . . . . . . . . . . . . . . . . . . . . . . . 82
Alternative arrangements . . . . . . . . . . . . . . . . . . . . . 82
Repair and replacement of Railway Infrastructure . . . . . . . . . 82
19 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
-iii-
Network Lessee to maintain insurance . . . . . . . . . . . . . . . 83
Insureds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Supply details of insurance . . . . . . . . . . . . . . . . . . . . 84
Not to invalidate insurance . . . . . . . . . . . . . . . . . . . . 85
Minister's rights . . . . . . . . . . . . . . . . . . . . . . . . . 85
20 Network Lessee's liability and indemnity . . . . . . . . . . . . . 85
Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
21 Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Warranties by the State . . . . . . . . . . . . . . . . . . . . . . 87
Network Lessee's warranties . . . . . . . . . . . . . . . . . . . . 88
22 Disclaimers and acknowledgments . . . . . . . . . . . . . . . . . . 90
23 Default and termination . . . . . . . . . . . . . . . . . . . . . . 91
Essential terms . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . 91
Minister's right to terminate . . . . . . . . . . . . . . . . . . . 92
Minister's rights on termination or expiration of the Term . . . . 93
Step in rights . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Assignment and novation of contracts on Termination . . . . . . . . 94
Infrastructure of the Purchaser . . . . . . . . . . . . . . . . . . 95
Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
24 [This clause has been deliberately left blank] . . . . . . . . . . 96
25 Sharing of information, reporting and co-operation . . . . . . . . 96
26 Stamp duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
27 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
28 Assignment and charging . . . . . . . . . . . . . . . . . . . . . . 100
No interest to be created without consent . . . . . . . . . . . . . 100
Requirements for assignment . . . . . . . . . . . . . . . . . . . . 101
Network Lessee liability . . . . . . . . . . . . . . . . . . . . . 103
Exclusion of statutory provisions . . . . . . . . . . . . . . . . . 103
Costs and expenses . . . . . . . . . . . . . . . . . . . . . . . . 103
Charging . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
29 Exercise of rights . . . . . . . . . . . . . . . . . . . . . . . . 105
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30 Waiver and variation . . . . . . . . . . . . . . . . . . . . . . . 105
31 Approvals and consents . . . . . . . . . . . . . . . . . . . . . . 105
32 Remedies cumulative . . . . . . . . . . . . . . . . . . . . . . . . 106
33 No merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
34 Indemnities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
35 Further assurances . . . . . . . . . . . . . . . . . . . . . . . . 107
36 Treasurer's guarantee and indemnity . . . . . . . . . . . . . . . . 108
37 Supervening legislation . . . . . . . . . . . . . . . . . . . . . . 109
38 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . 109
39 Sovereign immunity . . . . . . . . . . . . . . . . . . . . . . . . 111
40 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
41 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 111
42 No representations or warranties . . . . . . . . . . . . . . . . . 112
43 Dispute resolution . . . . . . . . . . . . . . . . . . . . . . . . 112
44 Governing law, jurisdiction and service of process . . . . . . . . 117
45 No undisclosed principals or undisclosed trusts . . . . . . . . . . 118
46 Guarantee and indemnity . . . . . . . . . . . . . . . . . . . . . . 118
Guarantor's obligations . . . . . . . . . . . . . . . . . . . . . . 118
Duration and application . . . . . . . . . . . . . . . . . . . . . 119
No prejudice to rights . . . . . . . . . . . . . . . . . . . . . . 120
Restriction on Guarantors' claims . . . . . . . . . . . . . . . . . 121
Minister's rights . . . . . . . . . . . . . . . . . . . . . . . . . 121
Costs and expenses . . . . . . . . . . . . . . . . . . . . . . . . 122
Assignment of benefit of this agreement . . . . . . . . . . . . . . 122
47 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
Consents and approvals not to be unreasonably withheld . . . . . . 122
-v-
Schedule 1 CBH Sites
Schedule 2 Excluded Railway Infrastructure
Schedule 3 Existing Third Party Interests
Schedule 4 Initial Performance Standards
Schedule 5 Material Leases
Schedule 6 Non-Corridor Land Railway Infrastructure
Schedule 7 Penalties
Schedule 8 CPI Index Change
Schedule 9 Country Passenger Stations and Stopping Places
Annexure A Grain Line Strengthening Plan
Annexure B Southern Suburbs Urban Rail Line
Annexure C Midland to Bellevue Extension Proposal
Annexure D Geraldton Line Relocation
Annexure E Avon Valley Access Road
-vi-
Rail Freight Corridor Land Use Agreement
(NarrowGauge) and Railway Infrastructure
Lease
Date: 16 December 2000
Parties: THE XXX XXXXXX XXXXXXX MLC EXERCISING
POWERS UNDER SECTION 43 OF THE RAIL FREIGHT
SYSTEM XXX 0000 (WA) ("Minister")
THE WESTERN AUSTRALIAN GOVERNMENT RAILWAYS
COMMISSION EXERCISING POWERS UNDER SECTIONS
8(7) AND 44 OF THE RAIL FREIGHT SYSTEM XXX
0000 AND SECTION 00 XX XXX XXXXXXXXXX
XXXXXXXX XXX 0000 ("Commission")
THE XXX. XXXXXXX FAIRFAX COURT MLA,
TREASURER OF THE STATE OF WESTERN
AUSTRALIA, EXERCISING POWERS UNDER SECTION
20 OF THE RAIL FREIGHT SYSTEM ACT 2000 (WA)
("Treasurer")
WESTNET NARROWGAUGE PTY LTD ACN 094 736 900
having its registered office at 11th Floor,
Wesfarmers House, 00 Xxx Xxxxxxxxx, Xxxxx,
Xxxxxxx Xxxxxxxxx ("Network Lessee")
AUSTRALIA WESTERN RAILROAD PTY LTD ACN 094
792 275 having its registered office at
11th Floor, Wesfarmers House, 00 Xxx
Xxxxxxxxx, Xxxxx, Xxxxxxx Xxxxxxxxx
("Purchaser")
AUSTRALIAN RAILROAD GROUP PTY LTD ACN 080
579 308 having its registered office at
11th Floor, Wesfarmers House, 00 Xxx
Xxxxxxxxx, Xxxxx, Xxxxxxx Xxxxxxxxx
("Guarantor")
Recitals:
A. The Commission, under the Government
Railways Xxx 0000, carries on a business of
transporting freight by rail and road in
Western Australia and is the agency through
which the State has developed the Railway
Infrastructure.
1
B. The Government of Western Australia decided
that it was no longer necessary for the
State through the Commission to be involved
in the Freight Business. Accordingly, it
has decided that the Commission and the
State should sell the Freight Business.
C. The Railways (Access) Xxx 0000 provides for
a regime of third party access to certain
railways including the Railway
Infrastructure.
D. The Rail Freight System Act 2000
facilitated the sale of the Freight
Business to the Purchaser and others and
the use of certain land by the Network
Lessee for Permitted Uses.
E. The Minister on behalf of the State of
Western Australia has entered into this
agreement with the Network Lessee with the
objectives of (amongst other things):
(a) expanding the use of the Network by
the Purchaser and others;
(b) subject to the Act and the Access
Regime disposing of the Freight
Business on a vertically integrated
basis; and
(c) ensuring that a person using or
occupying that part of the Network
comprised of standard gauge track
has a financial or legal interest
in the continued maintenance and
operation of the narrow gauge
track.
F. Pursuant to the Sale Agreement, the
Minister has agreed to sell the Freight
Business and to enter into this agreement
at Completion.
G. By orders made under section 34 of the Rail
Freight System Xxx 0000, the Act Minister
designated the land the subject of this
2
agreement and the Lease Agreement
(StandardGauge) as Corridor Land.
H. The approval of the Governor and of the
Minister for Transport has been provided
under the Government Railways Act 1904 for
the Commission to enter into this
agreement.
Operative provisions:
1 Purpose and interpretation
Purpose
1.1 This agreement sets out the terms on which the
Network Lessee is to be given the right to use
the Corridor Land and Leased Railway
Infrastructure for Permitted Uses during the
Term. The Minister and the Network Lessee agree
that the provision of this agreement constitutes
the transfer of a going concern.
Defined terms
1.2 The following words have these meanings in this
agreement unless the contrary intention appears:
Act means the Rail Freight System Xxx 0000.
Act Minister has the same meaning as in section
31 of the Act.
Access Act means the Railways (Access) Xxx 0000.
Access Agreements means:
(a) the Transferred Access Arrangements;
(b) all access agreements entered into by the
Network Lessee on or after the date of
this agreement as a result of an access
application made under the Access Code;
(c) the Country Passenger Access Agreement;
and
3
(d) all other agreements entered into by the
Network Lessee or a Related Entity of the
Network Lessee on or after the date of
this agreement whereby the Network Lessee
or a Related Entity of the Network Lessee
has granted access to a party (including
the Commission) to use Railway
Infrastructure.
Access Code means the code established pursuant
to the Access Act.
Access Regime means the Access Act and the Access
Code.
Access Revenue means the revenue derived by the
Network Lessee in consideration for the provision
of access to the Network, including from the
Purchaser and any other Related Entity of the
Network Lessee.
Approved Additional Use means, in respect of the
Corridor Land and Leased Railway Infrastructure,
a use other than a Permitted Use which is
approved by the Minister under clause 8.6.
ARTC means the Australian Rail Track Corporation
Limited ACN 081 455 754.
Avoidable Costs means in respect of a Line, the
difference between the long term costs of
maintaining all of the Leased Railway
Infrastructure, including the Line, in accordance
with this agreement (including capital
expenditure) and the long term costs that would
otherwise be incurred in doing so, if the Line
was not part of the Leased Railway
Infrastructure.
Avon Valley Access Road means the road shown on
Annexure E.
Authorised Officer means a person appointed by a
party to act as an Authorised Officer for the
purposes of this agreement.
4
Authority means any governmental or other public
body, local authority or other authority of any
kind.
Bank means a bank carrying on banking business in
Perth.
Brunswick to Collie Line means the Line shown on
Map described as railway identification plan 71,
02-3.
Business Day means a day on which Banks are open
for general banking business in Perth (not being
a Saturday, Sunday or public holiday in Perth).
CBH means Co-operative Bulk Handling Ltd.
CBH Sites means those sites listed in Schedule 1
to be leased to CBH in accordance with the
transaction described in that Schedule.
Civic Purposes means any purpose, other than a
predominant purpose of deriving income or
profits, that the Minister considers to be
beneficial to the public or a section of the
public of Western Australia.
Commencement Date means the date Completion
occurs.
Communications and Signalling Agreement means the
Signalling, Train Control and Communications
Systems Services Agreement between the Network
Lessee, the Purchaser and the Commission.
Completion means completion under the Sale
Agreement.
Confidential Information in respect of a party
means:
(a) all Information relating to the policies,
business, technology or other affairs of:
(i) the party; or
(ii) any Related Entity of the party;
5
including:
(iii) Information which is designated or
indicated as being the property or
confidential information of the
party, any of its Related
Entities; and
(iv) trade secrets or Information which
is capable of protection at law or
equity as confidential
information,
whether that Information was disclosed:
(v) orally, in writing or in
electronic or machine readable
form;
(vi) before, on or after the date of
this agreement; or
(vii) by the party, any of its
Representatives, any of its
Related Entities, any
Representatives of its Related
Entities or by any third person;
and
(b) the terms of this agreement,
but excludes the Excluded Information.
Contaminant means a solid, liquid, gas, odour,
head, sound, vibration, radiation or substance
which makes or may make the Freight Terminals or
any other land or the surrounding Environment:
(a) unsafe or unfit for habitation or
occupation by person or animals;
(b) degraded in its capacity to support plant
life; or
(c) otherwise environmentally degraded.
6
Controller has the meaning given to it by section
9 of the Corporations Law.
Corridor Land means all of the land designated as
Corridor Land under the Corridor Land Designation
Order, namely the Corridor Land NarrowGauge and
Corridor Land StandardGauge and in the context
of:
(a) this agreement, means: Corridor Land
NarrowGauge unless the context indicates
that it means Corridor Land NarrowGauge
and Corridor Land StandardGauge;
(b) the Lease Agreement (StandardGauge) means:
Corridor Land StandardGauge unless the
context indicates that it means Corridor
Land StandardGauge and Corridor Land
NarrowGauge; and
(c) this agreement and the Lease Agreement
(StandardGauge) means: both Corridor Land
NarrowGauge and Corridor Land
StandardGauge,with the intent and to the
effect that the Corridor Land NarrowGauge
and the Corridor Land StandardGauge
together comprise all of the land
designated as Corridor Land under the
Corridor Land Designation Order.
Corridor Land Designation Order means the order
made under section 34 of the Act and titled Rail
Freight System (Corridor Land) Order 2000 and
published in the Government Gazette on 27 October
2000.
Corridor Land NarrowGauge means that part of the
Corridor Land as relates to the Network
NarrowGauge, being all of the Corridor Land other
than the Corridor Land StandardGauge.
Corridor Land StandardGauge has the meaning in
the Lease Agreement (StandardGauge).
Country Passenger Access Agreement means the
agreement of that name which takes effect between
the Commission and the Network Lessee in respect
7
of the Country Passenger Services, by virtue of
the Transfer Order.
Country Passenger Services means the Prospector,
Australind and Avonlink Passenger Services
carried on by the Commission.
Country Passenger Stations and Stopping Places
means the places described in Schedule 9.
CPI Adjustment Date means each anniversary of the
Commencement Date.
CPI Adjustment Notice means a notice given by the
Minister under clause 7.2.
CPI Index means the Consumer Price Index Groups
index number for the weighted average of 8
capital cities published by the Australian Bureau
of Statistics under Catalogue Number 6401.0 from
time to time.
CPI Number means the relevant number shown by the
CPI Index but if Schedule 9, paragraph 1(b)
applies, the number selected in accordance with
that paragraph.
Current CPI Number means, in respect of a CPI
Adjustment Date, the CPI Number last published
before that relevant CPI Adjustment Date.
Customer Contracts means:
(a) the contracts for the carriage of goods by
rail which are novated to the Purchaser by
a Transfer Order; and
(b) all other agreements entered into by the
Purchaser or a Related Entity of the
Purchaser on or after the date of this
agreement for the carriage of goods by
rail using the Network.
Data Room means the data room made available to
the Purchaser at Xxxxx 00, Xxxxxxxxx Xxxxxx, 00
Xx Xxxxxxx Xxxxxxx, Xxxxx.
8
Disclosed means the provision of information in
the Data Room established by the Rail Freight
Sale Taskforce at 00xx Xxxxx, Xxxxxxxxx Square,
00 Xx Xxxxxxx Xxxxxxx, Xxxxx, Xxxxxxx Xxxxxxxxx,
or in this agreement, or in the Information
Memorandum or otherwise in writing to the Network
Lessee or any of its Representatives on or before
the date of this agreement.
Dispute means a dispute, controversy or claim.
Dollars, AUD, A$ and $ means the lawful currency
of Australia.
Encumbrance means any lease, licence, Native
Title, easement, mortgage, charge, lien, pledge,
deposit, hypothecations, restrictive covenant,
building condition, retention of title or other
interest of any third party affecting any
property or any agreement to create such
interest.
End Point means a point shown on a Map to which a
Line goes.
Environment means the physical factors of the
surroundings of persons including the land,
waters, atmosphere, climate, sound, odours,
taste, the biological factors of animals and
plants and the social factor of aesthetics.
Environmental Law means a law regulating or
otherwise relating to the Environment, including
but not limited to any law relating to land use,
planning, pollution of air or water, soil or
ground water contamination, chemicals, waste, use
of dangerous goods or to any other aspect of
protection of the Environment or person or
property.
Escrow Account means the Bank account referred to
in clause 15.14.
Event of Default means each of the events
described in clause 23.2.
Excluded Information means information:
9
(a) which is in or becomes part of the public
domain other than through breach of this
agreement or the Sale Agreement or an
obligation of confidence owed to a party;
(b) which a party can prove by contemporaneous
written documentation was already known to
it at the time of disclosure by another
party or its Representatives (other than
if such knowledge arose from disclosure of
information in breach of an obligation of
confidentiality); or
(c) which a party acquires from a third party
entitled to disclose it.
Excluded Railway Infrastructure means the Railway
Infrastructure described in Schedule 2 and
Railway Infrastructure which is to remain the
property of the Commission as referred to in the
Communications and Signalling Agreement.
Existing Relevant Information means:
(a) in the case of the Network Lessee, the
Information acquired by the Purchaser or
the Network Lessee from the Commission
under the Sale Agreement and the Transfer
Orders; and
(b) in the case of the Commission, all
Information remaining in the possession of
the Commission about the Corridor Land and
the Leased Railway Infrastructure.
Existing Third Party Interests means all third
party interests described in Schedule 3.
Financial Statements means an audited:
(a) profit and loss statement;
(b) balance sheet; and
(c) statement of cash flows,
10
together with the notes to those documents and a
directors' declaration as required under the
Corporations Law and any other information
necessary to give a true and fair view of the
assets and liabilities of the entity or entities
to which they relate.
Financial Year means the period commencing on 1
July and ending on the next 30 June.
Fit for Purpose means (subject to clause 15.3),
in respect of Leased Railway Infrastructure, the
Leased Railway Infrastructure is in a physical
condition such that:
(a) the Leased Railway Infrastructure can
sustain the use of the Leased Railway
Infrastructure:
(i) that is required by third parties
under the Access Agreements;
(ii) that is required for the Purchaser
or any Related Entity of the
Purchaser to perform its
obligations under the:
(A) State Agreement
Obligations; and
(B) Customer Contracts; and
(b) the provisions of sections 12(6), (7) and
(8) of the Act are complied with; and
(c) the provisions of the Rail Safety Act are
complied with.
Five Year Anniversary means each of the days
falling 5, 10, 15, 20, 25, 30, 35, 40 and 45
years from the Commencement Date.
Force Majeure means any event or circumstance or
combination of events and circumstances, beyond
the reasonable control of a party, which causes
or results in default or delay in the performance
by that party of any of its obligations under
11
this agreement, except an obligation to pay
money, where the event or circumstance or series
or combination of events and circumstances could
not have been prevented, overcome or remedied by:
(a) the exercise by the affected party of a
standard of care and diligence consistent
with that of a prudent and competent
person in the position of that party; or
(b) the expenditure of a reasonable amount of
money;
including but not limited to:
(c) fire, lightning, explosion, flood,
earthquake, storm, hurricane, action of
the elements, riot, civil commotion,
malicious damage, natural disaster,
sabotage, act of a public enemy, act of
God, war (declared or undeclared),
blockade, revolution, radioactive
contamination, toxic or dangerous
contamination, or force of nature; and
(d) strikes, lockouts, industrial disputes,
industrial difficulties, labour
difficulties, work bans, blockades or
picketing.
Freight Business means the business of carrying
goods by rail and road and the provision of
access to third parties to the Network under the
Access Agreements and handling and storing of
goods presently carried on by the Commission.
Freight Terminals means the freight terminals to
be sold, leased or licensed to the Purchaser
under the Sale Agreement.
Government Gazette means the Government Gazette
of Western Australia printed and published, or
purporting to be printed and published, by the
Government Printer and includes any supplement to
it.
12
Government Railway means a railway as defined in
section 2 of the Government Railways Xxx 0000.
Grain Contract means the Western Australian
Export Grain Transportation and Handling
Agreement dated 9 June 2000 between the
Commission, CBH, AWB Limited, The Grain Pool of
Western Australia and AgraCorp Pty Ltd, The
Pastoralists and Graziers Association of Western
Australia and The Western Australian Farmers
Federation Inc.
Grain Line Strengthening Plan means the capital
works programme described in Annexure A.
Grain Logistics Committee means the committee of
that name referred to in the Grain Line
Strengthening Plan.
Grain Network means the Lines shown on Map
denoted as CE Plan 82081.
Guiding Principles means the principles set out
in clause 3.6.
Incidental Uses means:
(a) the lease of Corridor Land to Local
Governments for Civic Purposes; and
(b) the development of new freight terminals
on Corridor Land as contemplated by clause
8.13.
Indirect Loss means loss or damage which does not
flow directly and immediately from the relevant
event, circumstance, act or omission, and
includes:
(a) any special, indirect or incidental loss
or damage; and
(b) loss or damage arising from loss or denial
of opportunity,
13
whether claim for such loss or damage is based in
contract, in negligence or any other tort or any
kind, under warranty or otherwise.
Information means information in any form and
includes without limitation ideas, concepts,
know-how, techniques, designs, specifications,
drawings, blueprints, tracings, plans, maps,
diagrams, models, functions and capabilities,
systems , manuals and designs including copies,
abstracts, reports, notes and summaries.
Information Memorandum means the Information
Memorandum dated 30 June 2000 and issued by the
Rail Freight Sale Task Force in relation to the
sale of the Freight Business.
Information Representative means a person
appointed by a party under clause 25.1.
Initial Performance Standards means the standards
set out in Schedule 4.
Initial Rent has the meaning given in the Sale
Agreement.
Insolvency Event in relation to a person means
the happening of one or more of the following
events:
(a) an order is made that the person be wound
up;
(b) a liquidator, provisional liquidator,
receiver or other administrator in respect
of the person, or one of them is appointed
whether or not under an order;
(c) a resolution is passed to appoint an
insolvency administrator in respect of the
person;
(d) the person enters into, or resolves to
enter into, a scheme of arrangement or
composition with, or assignment for the
benefit of, all or any class of its
creditors, or it proposes a
14
reorganisation, moratorium or other
administration involving any of them other
than a solvent reconstruction;
(e) the person resolves to appoint an
administrator to itself, wind itself up,
or otherwise dissolves itself, or gives
notice of intention to do so, or is
otherwise wound up or dissolved;
(f) the person is, or states that it is,
unable to pay its debts as and when they
fall due;
(g) the person takes any step to obtain
protection, or is granted protection, from
its creditors under any applicable
legislation in any applicable
jurisdiction; and
(h) anything having a substantially similar
effect to any of the events specified in
paragraphs (a) to (g) above happens under
the laws of any applicable jurisdiction.
Kalgoorlie to Esperance Line means the Line shown
on Map described as railway identification plan
01-13, 51, 51-1 to 51-7.
Kalgoorlie to Leonora Line means the Line shown
on Map described as railway identification plan
01-13, 52, 52-1 to 52-5.
Kenwick to Jandakot Line means the Line shown on
Department of Transport Map 000-00-00 Rev C.
Kwinana to Kalgoorlie Line means the Line shown
on Map described as railway identification plan
01, 02, 01-1 to 01-13.
Last Balance Date means 30 June 2000.
Law includes any constitutional provision,
treaty, decree, convention, statute, Act of
Parliament, Act, regulation, rule, ordinance,
proclamation, subordinate legislation, by-law,
judgment, rule of common law or equity, rule,
15
ruling or guideline by a competent entity
exercising jurisdiction in the relevant matter,
including a rule, ruling or guideline of the
Federal Treasurer, Foreign Investment Review
Board, the Australian Competition & Consumer
Commission or National Competition Council or any
other government agency.
Lease Agreement (StandardGauge) means the
agreement, dated the same date as this agreement,
between the Minister, the Commission, the
Treasurer, WestNet StandardGauge, the Purchaser
and the Guarantor.
Leased Railway Infrastructure means:
(a) all of the Railway Infrastructure on
Corridor Land, other than the Excluded
Railway Infrastructure; and
(b) Non-Corridor Land Railway Infrastructure,
and includes all repairs or additions to and
replacement of Leased Railway Infrastructure from
time to time in accordance with this agreement.
Level Crossing means where a road crosses or
intersects the Corridor Land.
Line means Corridor Land NarrowGauge or Corridor
Land StandardGauge between any End Points shown
on a Map.
Local Government means a local government
established under the Local Government Xxx 0000.
Maintenance Obligation means an obligation of the
Network Lessee under clause 15.
Maintenance Plan means a plan presented under
clause 15.7.
Maps means the maps contained in the booklet
dated the date of this agreement and initialled
by the Minister and an Authorised Officer on
behalf of the Network Lessee.
16
Material Adverse Effect includes something which
materially adversely affects:
(a) the legality, validity or enforceability
of this agreement; or
(b) a party's ability to observe its
obligations under this agreement; or
(c) the rights of a party under this
agreement; or
(d) the ability of a person to carry on its
business as it is from time to time
conducted.
Material Change in Circumstances means in
relation to the Network Lessee or a Related
Entity of the Network Lessee:
(a) a material change to the obligations of
the Network Lessee to provide access under
an Access Agreement;
(b) a material change to the obligations of a
Related Entity of the Network Lessee to
carry freight under a contract with a
customer of it; or
(c) a material change to the requirements as
to either access or freight task of a
State Agreement Party.
Material Event of Default in relation to the
Network Lessee means the happening of one or more
of the following events:
(a) the failure by the Network Lessee to pay
the Rent within 30 days of a notice from
the Minister demanding payment;
(b) failure to remedy a material breach of a
Maintenance Obligation within 120 days of
notice from the Minister requiring the
breach to be remedied provided that such
period will be extended by such further
period of time as is reasonably necessary
17
(not being more than a further 120 days)
to cure such breach if the Network Lessee
is, in the reasonable opinion of the
Minister, diligently pursuing
rectification of such breach;
(c) the failure by either the Network Lessee
or the Purchaser to remedy a material
breach of a State Agreement Obligation
within 120 days notice from the Minister
requiring the breach to be remedied;
(d) the Network Lessee (or any Related Entity
of the Network Lessee that is legally
required to be accredited as an owner) not
becoming accredited as an owner under the
Rail Safety Act within 90 days of the
Director General under that Act formally
advising the Network Lessee in writing
that it considers that the then safety
management responsibilities of the Network
Lessee render it necessary for it (or a
Related Entity of it, as aforesaid) to be
so accredited;
(e) the Network Lessee ceases to be a person
that is an "eligible company" for the
purposes of section 13(2) of the Act for
more than 30 days;
(f) an Insolvency Event having occurred in
respect of the Network Lessee or the
Guarantor; or
(g) termination of the Lease Agreement
(NarrowGauge) for a "Material Event of
Default" under that agreement.
Material Financial Obligation means an obligation
in respect of an amount or amounts exceeding
$100,000 (per event) adjusted by movements in CPI
in accordance with clause 7.
Material Leases means each of the leases referred
to in Schedule 5.
18
Member of Parliament means a member of the
Parliament.
Midland to Bellevue Extension means the proposed
extension of the Urban Passenger Network
described in Annexure C.
Minimum Expenditure Amount means the amount
referred to in a Maintenance Plan as estimated to
be necessary to be spent on maintenance in a
year.
Minister means the Corridor Minister under the
Act.
Narngulu/ Geraldton Port Line means the Line
shown on Map described as railway identification
plan 91.
Native Title means native title as that term is
defined in the Native Xxxxx Xxx 0000 (Cth).
Native Title Claim Group has the meaning given in
the Native Xxxxx Xxx 0000 (Cth).
Net Tonnes means the net tonnage of goods carried
by a train.
Network means Leased Railway Infrastructure and
New Works on the Corridor Land and in the context
of:
(a) this agreement means: the Network
NarrowGauge unless the context indicates
that it means both the Network NarrowGauge
and the Network StandardGauge;
(b) the Lease Agreement (StandardGauge) means:
the Network StandardGauge unless the
context indicates that it means both the
Network StandardGauge and the Network
NarrowGauge; and
(c) the agreement and the Lease Agreement
(StandardGauge) means both parts of the
Network,
19
with the intent and to the effect that the
Network StandardGauge and the Network NarrowGauge
together comprise all of the Network.
Network Lessee means in the context of:
(a) this agreement: WestNet NarrowGauge;
(b) the Lease Agreement (StandardGauge):
WestNet StandardGauge; and
(c) this agreement and the Lease Agreement
(StandardGauge): both WestNet NarrowGauge
and WestNet StandardGauge.
Network StandardGauge has the meaning in the
Lease Agreement (StandardGauge).
Network NarrowGauge means that part of the
Network as comprises or incidentally relates to
the narrow gauge tracks, being all of the Network
other than the Network StandardGauge.
New Works means work constructed on Corridor Land
NarrowGauge by the Network Lessee which:
(a) is not an addition to or replacement of
Leased Railway Infrastructure; and
(b) is not attached or connected to Leased
Railway Infrastructure,
on that Corridor Land.
Non-Corridor Land Railway Infrastructure means
all of the Railway Infrastructure referred to in
Schedule 6, including Railway Infrastructure on
Port Authority Land.
Parliament means the Parliament of the State of
Western Australia.
Performance Standards means the Initial
Performance Standards and any performance
standard adopted under clauses 15.21 to 15.26.
20
Permitted Use means any use of the Corridor Land
or Leased Railway Infrastructure for or
incidental to the operation of a railway
including, without limitation:
(a) the operation of locomotives and rolling
stock;
(b) the movement of livestock, goods or
people;
(c) the provision of facilities and services
reasonably required in connection with the
operation of a railway; and
(d) the provision of access to Corridor Land
or Leased Railway Infrastructure for any
of the uses described in paragraphs (a),
(b) or (c);
and includes the Incidental Uses.
Perth to Bunbury Line means the Line shown on
Maps described as railway identification plans
01, 02-1, 02-2, 02-3, 75.
Perth to Geraldton Line means the Line shown on
Maps described as railway identification plans
01, 03, 03-1 to 03-7, 91, 94.
Planning Law means a law regulating or otherwise
relating to the uses of land or the construction
of things on land.
Port Authority means an Authority with
responsibility for a port.
Port Authority Land means in respect of North
Quay, Fremantle, Geraldton, Bunbury, Albany and
Esperance the land shown on the Maps as being
under the control of a Port Authority.
Practical Completion means in respect of works,
the date on which the works reach practical
completion for the purpose of any contract
relating to such works or, if there is no
21
contract, the date when the works are complete,
other than for minor repairs and finishings.
Previous CPI Number means, in respect of a CPI
Adjustment Date, the CPI Number last published
before the later of the Commencement Date or the
last preceding CPI Adjustment Date.
Private Level Crossing means a Level Crossing
that is not generally used by the public,
including occupational crossings and level
crossings that are private roads.
Prospector, Australind and Avonlink Passenger
Services means the intrastate railway passenger
businesses currently carried on under those names
by the Commission and for which the Network
Lessee has agreed to provide access to parts of
the Network under the Country Passenger Access
Agreement.
Public Works Act means the Public Works Xxx 0000
(WA).
Rail Freight Sale Task Force means the task force
established by the Minister to advise the
Minister on the sale of the Freight Business.
Rail Safety Act means the Rail Safety Xxx 0000
(WA).
Railway Crossing Protection in Western Australia
- Policy and Guidelines means the document of
that name made available in the Data Room,
together with such other policies or guidelines
as may apply from time to time in respect of the
obligations of Local Governments in respect of
Level Crossings.
Railway Infrastructure means facilities used in
connection with the operation of a railway,
including:
(a) railway track, ballast, sleepers,
associated track structures, over or under
track structures, supports (including
22
supports for equipment or items associated
with the use of a railway);
(b) tunnels, bridges, viaducts, culverts,
pipes, conduits and drains;
(c) stations and platforms;
(d) train control systems, signalling systems
and communication systems;
(e) electric traction infrastructure;
(f) buildings and workshops; and
(g) associated plant machinery and equipment;
but not including:
(h) private sidings and spur lines connected
to premises which were not, prior to the
Corridor Land Designation Order, under the
management or control of the Commission;
(i) rolling stock, rolling stock maintenance
facilities, office buildings, housing, or
terminal yards and terminals;
(j) Country Passenger Stations and Stopping
Places; or
(k) Assets or Access Assets as defined in the
Sale Agreement.
Rate means the rate from time to time which is
two percentage points above:
(a) the 90 day bank xxxx swap rate; or
(b) if such rate ceases to be published then
such equivalent reference rate as may
reasonably be determined by the Treasurer
of the State.
Related Entity of an entity means another entity
which is related to the first within the meaning
of section 50 of the Corporations Law or is an
23
economic entity (as defined in any approved
accounting standard) which contains the first.
Relevant Information means Information in the
possession of a party about:
(a) Corridor Land; or
(b) Leased Railway Infrastructure; or
(c) New Works; or
(d) rail safety procedures, manuals or
policies relevant to a party's
accreditation under the Rail Safety Act,
which is, in the reasonable opinion of a party
requesting the Relevant Information, necessary or
desirable for that party to have access to for
the purpose of:
(a) in the case of the Minister;
(i) the performance of this agreement;
(ii) the exercise of rights under this
agreement; or
(iii) the operation of the Urban
Passenger Network;
(b) in the case of the Commission, the
performance of its functions under the
Government Railways Act; or
(c) in the case of the Network Lessee a
Permitted Use of the Corridor Land or
Railway Infrastructure.
Rent means the amount of $0.00, adjusted in
accordance with clause 7, and payable in nil
equal instalments on each of the Rent Payment
Dates but does not include the Initial Rent.
Rent Payment Date, if any, means the last
Business Day in each twelve month period during
the Term.
24
Representative of a party means an employee,
agent, officer, director, adviser, partner, joint
venturer or sub-contractor of that party or of
any Related Entity of that party.
Return Condition means that each part of the
Leased Railway Infrastructure is Fit for Purpose
at the expiration of the Term.
Sale Agreement means the Agreement for Sale of
Business of that name dated 30 October 2000
between the Act Minister, the Commission, the
Treasurer of the State, the Network Lessee,
WestNet StandardGauge, Westrail Freight
Employment Pty Ltd ACN 087 891 601, AWR Lease Co
Pty Ltd ACN 094 792 159, the Purchaser, AWR
Holdings WA Pty Ltd ACN 094 693 562 and the
Guarantor.
Services means facilities for the provision or
transport of water, electricity, gas,
communications or sewerage.
Significant Reduction in Use means in respect of
a Financial Year:
(a) traffic dropping below 200,000 Net Tonnes
over a Line; or
(b) traffic over a Line (measured in Net
Tonnes) of less than 50% of the average of
the traffic during each of the previous
three Financial Years.
Southern Suburbs Urban Rail Line Project means
the project described in Annexure B.
Staff Houses means the houses and barracks which
have been sold, licensed or leased to the
Purchaser under the Sale Agreement.
State means the Crown in the right of the State
of Western Australia.
State Agreement Obligations means each of the
obligations described in Schedule 11 of the Sale
Agreement.
25
State Agreement Party has the same meaning as in
the Sale Agreement.
Tax Act means the Income Tax Assessment Act 1936-
1997 (Cth).
Taxes means taxes, levies, imposts, deductions,
charges, withholding and duties imposed by any
government agency (including, without limitation,
stamp and transaction duties), together with any
related interest, penalties, fines and expenses
in connection with them.
Term means the period from the Commencement Date
until determination of this agreement.
Toodyay to Midland Line means the line shown on
Maps described as railway identification plans
01, 01-1, 01-2.
Transfer Order means an order made under section
23 of the Act and published in the Government
Gazette on or before the Commencement Date.
Transferred Access Arrangements mean all of the
rights and obligations of the Commission under
the access agreements entered into by the
Commission which are novated to the Network
Lessee under the Transfer Order.
Urban Passenger Network means the land (and
Railway Infrastructure on that land) coloured
blue on the Map described as primary network map
No 2 shown in Map denoted as CE Plan 82082.
WestNet NarrowGauge means WestNet NarrowGauge Pty
Ltd ACN 094 736 900 being the Network Lessee
under this agreement.
WestNet StandardGauge means WestNet StandardGauge
Pty Ltd ACN 000 000 000, being the Network Lessee
under the Lease Agreement (StandardGauge).
General rules for interpretation
1.3 In this agreement unless the contrary intention
appears:
26
(a) a reference to this agreement or another
instrument includes any variation or
replacement of any of them;
(b) a reference to a statute, ordinance, code
or other law includes regulations and
other instruments under it and
consolidations, amendments, re-enactments
or replacements of any of them;
(c) the singular includes the plural and vice
versa;
(d) the word "person" includes a firm, a body
corporate, a partnership, joint venture,
an unincorporated body or association, or
any government agency;
(e) a reference to a person includes a
reference to the person's executors,
administrators, successors, substitutes
(including, without limitation, persons
taking by novation) and assigns;
(f) an agreement, representation or warranty
in favour of two or more persons is for
the benefit of them jointly and severally;
(g) an agreement, representation or warranty
on the part of two or more persons binds
them jointly and severally;
(h) if a period of time is specified and dates
from a given day or the day of an act or
event, it is to be calculated exclusive of
that day;
(i) a reference to a day is to be interpreted
as the period of time commencing at
midnight and ending 24 hours later;
(j) a reference to an accounting term is to be
interpreted in accordance with accounting
standards under the Corporations Law and,
if not inconsistent with those accounting
standards, generally accepted principles
and practices in Australia consistently
27
applied by a body corporate or as between
bodies corporate over time;
(k) a reference to any thing is a reference to
the whole and each part of it and a
reference to a group of persons is a
reference to all of them collectively, to
any two or more of them collectively and
to each of them individually;
(l) the verb "include" (in all its parts,
tenses and variants) is not used as, nor
is it to be interpreted as, a word of
limitation;
(m) the words "including", "for example", "any
other" or "such as" do not limit the
meaning of the words to which the example
relates to that example or examples of a
similar kind;
(n) if an act prescribed under this agreement
to be done by a party on or by a given day
is done after 5.30pm on that day, it is
taken to be done on the next day;
(o) if an event must occur on a stipulated day
which is not a Business Day then the
stipulated day will be taken to be the
next Business Day;
(p) a reference to time is a reference to
Perth time; and
(q) the fact that this agreement was prepared
for the Minister is not to be taken into
account in its interpretation.
1.4 If a provision of this agreement is inconsistent
with a provision of another agreement between the
parties the provision of this agreement prevails.
Unreasonable interference
1.5 A thing done, to be done or not to be done
unreasonably interferes with the Network Lessee's
or a Related Entity of the Network Lessee's use
28
of Corridor Land and Leased Railway
Infrastructure for a Permitted Use if and only if
it does or can reasonably be foreseen to:
(a) impose a Material Financial Obligation on
the Network Lessee or any Related Entity
of the Network Lessee; or
(b) have a Material Adverse Effect on the
Network Lessee or any Related Entity of
the Network Lessee; or
(c) materially increase the costs of, or
materially reduce the profits, financial
position or prospects of the Network
Lessee or a Related Entity of the Network
Lessee or any other party who uses or
occupies the Corridor Land and Leased
Railway Infrastructure for a Permitted Use
or an Approved Additional Use,
where a reference to Network Lessee means both
WestNet NarrowGauge and WestNet StandardGauge
taken together.
1.6 A reference to use in clause 1.5 includes a
reference to the Network Lessee's or a Related
Entity of the Network Lessee's current or
proposed Permitted Use of Corridor Land or Leased
Railway Infrastructure or both or an Approved
Additional Use.
1.7 A reference to a proposed Permitted Use means a
use that is proposed by the Network Lessee or a
Related Entity of the Network Lessee or is
reasonably foreseeable as being a use of the
Corridor Land or Leased Railway Infrastructure.
No Better or Worse Off
1.8 Where a payment of an amount of compensation is
to be made under this agreement to a person so
that the person is "No Better or Worse Off" than
if something had not been done, the amount is to
be calculated so that upon payment the person's
financial position and prospects are, taking into
account all relevant facts, matters and
29
circumstances (including any reasonably
anticipated increased or reduced cost of
complying with clause 15), substantially the same
as they would have been if the things had not
been done.
Uneconomic
1.9 For the purpose of clause 16.2(b), the
maintenance of a Line is "Uneconomic" if the
Avoidable Costs reasonably attributable to the
requirement to maintain the Line required by
clause 15 for a three year period exceed all the
additional revenue reasonably expected to be
derived (directly or indirectly) by the Network
Lessee and its Related Entities from the use of
the Line including Access Revenue and revenue
derived by a Related Entity of the Network Lessee
from the carriage of goods.
Headings
1.10 In this agreement headings and subheadings are
for convenience only and do not affect the
interpretation of the rest of this agreement.
GST
1.11 In this agreement the terms GST, going concern,
consideration, tax invoice, adjustment event,
recipient, supply, supplier and taxable supply
have the meanings given to them in the A New Tax
System (Goods and Services Tax) Xxx 0000, as
amended from time to time.
Shared Obligations
1.12 Where this agreement contains a financial
obligation or financial commitment on the part of
the Network Lessee which either:
(a) relates to any extent to the Network
StandardGauge; or
(b) is replicated in the Lease Agreement
(StandardGauge) and is thereby imposed
upon WestNet StandardGauge:
30
then discharge or performance of that obligation
or commitment -
(i) in relation to the Network
StandardGauge, by WestNet
StandardGauge; or
(ii) under this agreement, by WestNet
NarrowGauge
will be taken to be discharge and performance of
that obligation or commitment under the Lease
Agreement (StandardGauge) and vice versa.
2 Use of Corridor Land and Lease of Leased Railway Infrastructure
Use of Corridor Land
2.1 The Minister grants the Network Lessee, and the
Network Lessee accepts, a right to use and occupy
the Corridor Land for the Term on the terms and
conditions of this agreement.
2.2 Only to the extent that the Minister does not
have power by reason of Native Title to provide
the right to use contemplated by clause 2.1, the
Commission grants the Network Lessee a lease of
such part of the Corridor Land as is affected by
Native Title on the terms and conditions of this
agreement.
Lease of Railway Infrastructure
2.3 The Commission and the Minister grant the Network
Lessee a lease of the Leased Railway
Infrastructure on the terms and conditions of
this agreement for the Term.
Reservation to the Minister and the Commission
2.4 The Minister and the Commission reserve to
themselves the rights in respect of the Corridor
Land and Railway Infrastructure set out in this
agreement.
31
3 Description of Corridor Land
Corridor Land
3.1 The Corridor Land along with the Corridor Land
NarrowGauge is all the land designated as
Corridor Land under the Corridor Land Designation
Order.
3.2 For the avoidance of doubt, the Network Lessee
acknowledges that the Corridor Land does not
include:
(a) certain land which is identified on the
Maps as not being needed for the operation
of the Freight Business and which has been
identified by the Commission for disposal
by it;
(b) land leased to Local Governments;
(c) the Freight Terminals;
(d) the Staff Houses; and
(e) the CBH Sites,
all of which are identified on the Maps.
Operation of Maps
3.3 The parties agree that the Maps are to be used as
follows to determine the boundaries of the
Corridor Land and provide information:
(a) Maps 1 and 2 show the overall Network and
the boundaries between the Network and the
Urban Passenger Network;
(b) the signalling diagrams marked "SD" key
section of like key kilometreage show the
general track layout and track ownership
at each interlocking and also show
schematically the location of Country
Passenger Stations and Stopping Places;
32
(c) the Maps and diagrams referred to in
paragraphs (a) and (b) are not intended to
establish boundaries;
(d) where the Maps describe a Line, then
unless the Maps show otherwise, the
Corridor Land is all of the land which was
formerly a Government Railway under the
Government Railways Act and mostly, but
not always, is a corridor of 20 metres
either side of the mid point of the
tracks;
(e) Maps described as "railway identification
plans" and coded by sections of Line show
the boundaries of the Corridor Land;
(f) Maps coded "DP" and numbered by location
on sections of Line and kilometreage
define the land at Freight Terminals and
show leased railway infrastructure on Port
Authority Land or other land which is not
Corridor Land and has private sidings or
spur lines on it. This land is not
Corridor Land because it is:
(i) land sold or leased under the Sale
Agreement;
(ii) owned by a Port Authority or
another person or is leased to
another person; or
(iii) being retained by the Commission;
(g) Maps coded "TP" and numbered by location
on a section of Line and kilometreage show
the land in towns which is not Corridor
Land because it is:
(i) leased or owned by a third party;
or
(ii) being retained by the Commission;
(h) Maps coded by location showing the
location and proposed boundaries of the
33
CBH Sites which are or are to be leased to
CBH;
(i) Map showing the Urban Passenger Network
coloured blue on the Map described as
primary network map No. 2; and
(j) Map showing the Grain Network coded CE
Plan 82081.
Adjustment of boundaries
3.4 The Network Lessee acknowledges that in some
cases the boundaries shown on the Maps between
the Corridor Land and other land (including the
land referred in clause 3.3 above ) which does
not form part of the Corridor Land, have not been
prepared to survey standards.
3.5 The Network Lessee agrees that:
(a) the Minister may, at his cost (and will on
the request of and at the cost of the
Network Lessee), undertake a survey of
parts of the Corridor Land for the purpose
of identifying the boundaries with more
precision and adjusting the boundaries
between the Corridor Land and other land;
and
(b) the Minister may, following such survey,
adjust the boundaries between the Corridor
Land and other land and remove from or add
land to the Corridor Land and the Network
Lessee will accept such adjustment
provided that the adjustment is made in
accordance with the Guiding Principles and
not otherwise.
Guiding Principles
3.6 For the purposes of clause 3.5(b), the Guiding
Principles to be used in an adjustment of
boundaries between Corridor Land and other land
are:
(a) the Minister may make an adjustment to
increase or reduce the amount of Corridor
34
Land if such adjustment will not
unreasonably interfere with the Network
Lessee's or Related Entity of the Network
Lessee's use of Corridor Land and leased
Railway Infrastructure for a Permitted
Use;
(b) subject to paragraph (a) the Minister may
make an adjustment to increase the amount
of Corridor Land if to do so will not
impose a Material Financial Obligation on
the Network Lessee;
(c) subject to paragraph (a), land which has a
commercial value to the State can be
disposed of so that commercial value is
realised;
(d) in respect of Freight Terminals and Staff
Houses, boundaries may be surveyed so as
to assist in obtaining freehold title over
the underlying land; and
(e) in the case of CBH, the boundaries may be
adjusted so the Commission can lease land
to CBH, provided that this does not
unreasonably interfere with the Network
Lessees or Related Entity of the Network
Lessee's use of Corridor Land and leased
Railway Infrastructure for a Permitted Use
or any Approved Additional Use.
3.7 The Minister:
(a) will provide 60 days notice to the Network
Lessee prior to the commencement of any
survey to be undertaken under clause 3.5
or 3.6(d); and
(b) will consider in good faith matters raised
by the Network Lessee before the survey
commences in respect of such proposed
survey.
3.8 Where the adjustment of a boundary is undertaken
in accordance with this clause 3:
35
(a) the Minister will give a written notice to
the Network Lessee with reasonable details
of the proposed boundaries;
(b) the boundary will be adjusted within seven
days of receipt by the Network Lessee of
written notice from the Minister of the
adjustment, and such notice will be
accompanied by reasonable survey details
and a Map showing the adjusted boundary;
(c) this agreement will only take effect in
respect of any land which is designated
Corridor Land after the adjustment of the
boundary, following the gazettal of the
relevant order under section 34 of the
Act;
(d) where Corridor Land is to cease to be
Corridor Land after the adjustment, the
land will only cease to be Corridor Land
upon gazettal of an order under section 37
of the Act;
(e) where land ceases to be Corridor Land,
following an adjustment under this clause
3, the Leased Railway Infrastructure on
that land ceases to be leased under clause
2 unless otherwise agreed by the Minister
and the Network Lessee; and
(f) where land becomes Corridor Land subject
to this agreement, any Railway
Infrastructure on the land when it becomes
Corridor Land is leased to the Network
Lessee on the terms and conditions of this
agreement.
3.9 The Minister will indemnify the Network Lessee
for any loss or liability suffered by the Network
Lessee because of an exercise of power by the
Minister under section 37 or 39 of the Act, which
is inconsistent with the Guiding Principles.
4 Nature of Network Lessee's interest
Rights and responsibilities of the Network Lessee
36
4.1 This agreement confers on the Network Lessee:
(a) subject to the Country Passenger Access
Agreement and clauses 8.5, 9, 10, 12, 14.2
and 23 and any other access agreement for
passenger trains, the right to the
exclusion of the State, the Commission and
any other person to use the Corridor Land
and Leased Railway Infrastructure for
Permitted Uses and any Approved Additional
Uses; and
(b) the responsibilities in respect of
Corridor Land and Leased Railway
Infrastructure as set out in this
agreement.
Agreement not to be registered
4.2 This agreement will not be registered under the
Transfer of Land Act 1893 or under any other
title registration system operating in the State.
The Minister will take all reasonable steps to
ensure that the Department of Land Administration
will note on any maps or titles land which is
designated as Corridor Land.
No proprietary interest
4.3 Except to the extent that clause 2.2 applies,
this agreement is not intended to create any
proprietary interest in favour of the Network
Lessee in the Corridor Land and the rights of the
Network Lessee in respect of the Corridor Land
are intended to be contractual only.
Native Title
4.4 Without limiting clause 4.3, in the event that
Native Title exists in respect of Corridor Land,
nothing in this agreement is intended to
adversely affect such Native Title.
4.5 The Network Lessee takes its interests under this
agreement subject to any Native Title which may
exist over the Corridor Land.
37
4.6 In the event that any Native Title (or claim of
Native Title by a Native Title Claim Group) in
the Corridor Land does unreasonably interfere
with the use by the Network Lessee of the
Corridor Land and Leased Railway Infrastructure
for Permitted Uses or any Approved Additional
Use, then the following provisions of this clause
4 apply.
4.7 The Network Lessee will:
(a) give notice to the Minister as soon as
reasonably practicable of any such Native
Title (or claim by a Native Title Claim
Group);
(b) take all reasonable steps to negate the
impact on the Network Lessee of any such
Native Title (or claim by a Native Title
Claim Group) but the Network Lessee is not
obliged to incur a Material Financial
Obligation in taking such steps and will
not do so, without the consent of the
Minister; and
(c) afford the State all reasonable
opportunity and cooperate with the State
to (at the cost of the State) negotiate a
settlement or other appropriate response
to any such Native Title (or claim by a
Native Title Claim Group).
4.8 If within a period of 30 days from receipt of the
notice under clause 4.7(a), such Native Title is
reasonably likely to interfere with the use of
the Corridor Land and Leased Railway
Infrastructure for a Permitted Use or any
Approved Additional Use, then the State will take
all steps available to it to mitigate that effect
of Native Title, including the negotiation and
payment by it of compensation in respect of an
extinguishment (negotiated or otherwise) of any
such Native Title.
Rights to Railway Infrastructure
38
4.9 Regardless of whether any Railway Infrastructure
is affixed to land, all Leased Railway
Infrastructure is leased to the Network Lessee,
who obtains a right of quiet use and enjoyment of
the Leased Railway Infrastructure as lessee,
subject only to:
(a) the Access Regime;
(b) the Transferred Access Arrangements; and
(c) the Existing Third Party Interests; and
(d) the Country Passenger Access Agreement.
Existing Third Party Interests
4.10 The Network Lessee agrees:
(a) to take the use of the Corridor Land and
the lease of the Leased Railway
Infrastructure subject to the Existing
Third Party Interests;
(b) that throughout the Term it will avoid
doing anything which unreasonably
interferes with the rights or enjoyment of
a third party entitled under an Existing
Third Party Interest; and
(c) to permit and not to unreasonably hinder
access by the Commission and its customers
and staff to Country Passenger Stations
and Stopping Places.
Indemnity
4.11 The Minister will indemnify the Network Lessee in
respect of any liability, cost or expense (other
than Indirect Loss) incurred by the Network
Lessee which arises under or in connection with
Native Title (or claim of Native Title by a
Native Title Group) to the extent that such a
liability, cost or expense is reasonably and
necessarily incurred:
39
(a) because of any act or omission of the
State or Commission in connection with
this agreement, except things done at the
request of the Network Lessee;
(b) by the Network Lessee performing its
obligations under clause 4.7; or
(c) in order to:
(i) mitigate a Material Adverse
Effect; or
(ii) mitigate any unreasonable
interference with the ability of
the Network Lessee to use the
Corridor Land or Leased Railway
Infrastructure for a Permitted Use
or any Approved Additional Use; or
(iii) comply with the Network Lessee's
obligations under clause 4.7(b).
Rights to notice in respect of land
4.12 If the Commission or the Minister receives any
notice from the Western Australian Planning
Commission or any Local Government in respect of
land adjoining Corridor Land or any land used by
the Network Lessee under this agreement, the
Commission will:
(a) inform the Network Lessee of the contents
of the notice within 7 days of receipt of
such notice; and
(b) consult with the Network Lessee with
respect to responding to such notice.
Undertakings by Minister
4.13 The Minister and the Commission agree that during
the term they will not dispose of or create any
interest, including any Encumbrance, in the
Corridor Land except as permitted by clause 8.11
of this agreement.
40
Material Leases
4.14 In respect of the Material Leases, the Network
Lessee will stand as the Minister's and the
Commission's agent with all power in respect of
the rights and all responsibility in respect of
observing the obligations of the Minister and
Commission under each of the Material Leases
affecting the Corridor Land with the intent that
the Network Lessee be placed in the position of
being able to deal with the other party to the
Material Lease as if the Network Lessee were the
owner of the Corridor Land.
5 Term
This agreement will continue for the term of 49 years from the
Commencement Date.
6 Rent
Obligation to pay rent
6.1 The Network Lessee agrees to pay the Initial Rent
to the Minister at Completion.
6.2 The Network Lessee agrees to pay to the Minister
each instalment (if any) of Rent on each Rent
Payment Date free and clear of any deduction or
set off.
6.3 The Rent will not be affected by any adjustment
to Corridor Land made in accordance with this
agreement.
6.4 The Network Lessee agrees that the obligation to
pay Initial Rent and the Rent under this clause 6
is a fundamental term of this agreement.
Interest on late payments
6.5 Without limiting the right of the Minister to
terminate this agreement under clause 23.3, or
any other right or remedy available to the
Minister or the Commission, interest at the Rate
41
will be payable by the Network Lessee on any
payment due from the Network Lessee under this
agreement which is not paid when due (including
any portion of Rent not paid on the Rent Payment
Date).
6.6 Interest under clause 6.5 will be:
(a) calculated daily by multiplying the Rate
by the outstanding amount of payment due
and dividing by 365; and
(b) capitalised on the last Business Day of
each six month period and added to the
amount outstanding. Interest calculated
under paragraph (a) will then be applied
to this further capitalised amount.
6.7 The Minister may apply amounts paid by the
Network Lessee under this clause 6 towards
satisfaction of the Network Lessee's obligations
to pay rent or interest under this agreement in
the manner and order the Minister sees fit.
7 CPI Adjustment
CPI Adjustment
7.1 If the Current CPI Number on a CPI Adjustment
Date exceeds the Previous CPI Number, the Rent
(and other amounts to which this clause 7.1
applies) is to be adjusted as from and including
that CPI Adjustment Date in accordance with the
following formula:
NR = R x C
P
Where R = the Rent (or the amount) payable
prior to the CPI Adjustment Date;
C = the Current CPI Number
P = the Previous CPI Number
NR = the New Rent (or amount)
42
7.2 The Network Lessee is to continue making payments
under clause 6.1 at the Rent applying immediately
before a CPI Adjustment Date until the Minister
gives a CPI Adjustment Notice to the Network
Lessee which sets out the Rent applicable from
and including that CPI Adjustment Date. Any
necessary adjustment with respect to the Rent
paid or payable is to be made on the next Rent
Payment Date after the Minister gives the Network
Lessee that CPI Adjustment Notice.
7.3 If the CPI Index is for any reason not published
or it is, in the Minister's opinion, materially
changed, the provisions of Schedule 9 are to
apply.
8 Use of Corridor Land and Leased Railway Infrastructure
Permitted Use
8.1 The Network Lessee agrees to use the Corridor
Land and Leased Railway Infrastructure only for a
Permitted Use or any Approved Additional Use.
8.2 The Minister and the Commission agree that the
State (including the Minister and the Commission)
will not use the Corridor Land and Leased Railway
Infrastructure for a Permitted Use or any
Approved Additional Use except as permitted by
the Country Passenger Access Agreement, clauses
8.5, 9, 10, 12, 14.2 and 23 and any other access
agreement for passenger trains.
8.3 The Minister and the Commission will not grant
any right in favour of a third party in respect
of Corridor Land or Leased Railway Infrastructure
for a Permitted Use or any Approved Additional
Use except as permitted by the Country Passenger
Access Agreement, clauses 8.5, 9, 10, 12, 14.2
and 23 and any other access agreement for
passenger trains.
8.4 The Network Lessee may, on such terms and
conditions as it thinks fit, grant to a third
party a right to use or occupy Corridor Land or
43
Leased Railway Infrastructure for a Permitted Use
or any Approved Additional Use provided that:
(a) the Network Lessee does not provide any
greater interest to the third party in the
Corridor Land or Leased Railway
Infrastructure than it has under this
agreement;
(b) the right must not extend beyond the Term,
less one day; and
(c) doing so does not in any way relieve the
Network Lessee of any of its obligations
under this agreement.
8.5 Without limiting clause 8.4, the Network Lessee
may request the Minister or the Commission to
grant a right to a third party to use or occupy a
part of the Corridor Land or some of the Leased
Railway Infrastructure for a Permitted Use or any
Approved Additional Use (including without
limitation a lease of part of the Corridor Land)
and such right will be granted so long as:
(a) the right is not to subsist for a term
greater than the balance of the Term; and
(b) doing so does not impose any Material
Financial Obligation on the State or the
Commission.
Non-Permitted Uses
8.6 The Network Lessee may use, or may permit third
parties to use, the Corridor Land and Leased
Railway Infrastructure for purposes other than a
Permitted Use only with the prior written consent
of the Minister.
8.7 In considering whether or not to give consent
under clause 8.6 and notwithstanding clause 47:
(a) the Minister is not limited to
consideration of financial or business
matters, but may consider whether the
proposed use is in the interest of the
44
State, taking into account broader
community, social and economic interests;
and
(b) the Minister may withhold his consent:
(i) if he reasonably anticipates that
providing consent will result in a
use which may be inconsistent with
a use which may foreseeably be
granted by the Minister under this
clause 8; or
(ii) after negotiating in good faith as
to an appropriate means by which
proceeds arising from the proposed
use of the Corridor Land and
Leased Railway Infrastructure is
to be shared, the Minister and the
Network Lessee cannot agree, until
an appropriate apportionment of
proceeds is determined in
accordance with clause 43.
8.8 A determination under clause 43 will be made on
the basis that the arbitrator will be instructed
by the Minister and the Network Lessee to
allocate a fair proportion of the proceeds from
the use between the Minister and the Network
Lessee keeping in mind:
(a) that the Corridor Land and Leased Railway
Infrastructure is owned by the State;
(b) the direct and indirect benefits to the
parties of the proposed use; and
(c) that the transaction first became known to
the State because it was introduced to the
State by the Network Lessee if that is the
case.
45
Rights and interests in Corridor Land
8.9 Except in the case of emergency (where no prior
notice is required to be given), the Minister
will provide 60 days notice to the Network Lessee
prior to granting any such right under clause
8.11. The Minister must consult with the Network
Lessee regarding the impact on the Network
Lessee's use of the Corridor Land and Leased
Railway Infrastructure of any right the Minister
proposes to grant in accordance with this clause.
8.10 The rights granted by the Minister under clause
8.11 include not only rights in contract but also
proprietary interests in the land such as leases,
easements and restrictive covenants.
8.11 The Minister may create any interest in land or
right to use Corridor Land for a use other than a
Permitted Use provided that such interest or
right is not inconsistent with, and does not
extinguish, defeat or remove, the rights of the
Network Lessee to use the Corridor Land and the
Leased Railway Infrastructure for a Permitted Use
or any Approved Additional Use or does not
unreasonably interfere with the Network Lessee's,
the Purchaser's or any other person's use of the
Corridor Land and Leased Railway Infrastructure
for a Permitted Use or any Approved Additional
Use.
Freight Terminals on Corridor Land
8.12 For the purposes of clause 8.13 "new terminal"
means a facility with a direct connection to the
Network which is used for the purposes of loading
and unloading wagons, or the provisioning,
repair, maintenance or construction of
locomotives or rolling stock.
8.13 The Network Lessee may not (nor permit any other
person, including the Purchaser to) construct a
new terminal on the Corridor Land without the
Minister's consent, which may not be unreasonably
withheld.
46
Avon Valley Access Road
8.14 The Minister agrees that the State will take all
reasonable steps available to it to ensure that
the Avon Valley Access Road remains open for use
by the Network Lessee, provided that the Network
Lessee will maintain the road and security gates
to the standard which exists as at the date of
this agreement.
9 Rights of the Minister and State in respect of Corridor Land
Structures may be built
9.1 The Minister may (or may allow others) to:
(a) build structures over the Corridor Land;
(b) construct structures under the Corridor
Land, including tunnels; and
(c) install and maintain Services along or
across or otherwise through the Corridor
Land,
provided that it will not unreasonably interfere
with the Network Lessee's and the Purchaser's use
of the Corridor Land and Leased Railway
Infrastructure for a Permitted Use or any
Approved Additional Use, or if it will so
interfere then the Minister must follow the
procedures in clause 10.
Improvements
9.2 The Minister may, in accordance with this clause
9 and at his cost:
(a) upgrade, replace or add to any of the
Leased Railway Infrastructure to the same
or a better standard; or
(b) construct any new Railway Infrastructure
on Corridor Land.
47
provided that it will not unreasonably interfere
with the Network Lessee's and the Purchaser's use
of the Corridor Land and Leased Railway
Infrastructure for a Permitted Use or any
Approved Additional Use, or if it will so
interfere then the Minister must follow the
procedures in clause 10.
9.3 Except in the case of emergency (where no prior
notice or consultation is required), prior to
exercising any of his rights under this clause 9,
the Minister:
(a) will give not less than six months notice
to the Network Lessee specifying the
reasonable particulars of the work which
the Minister wishes to undertake; and
(b) must consult with the Network Lessee
regarding the impact any works the
Minister proposes to undertake under this
clause 9 will have on the Network Lessee's
use of the Corridor Land and Leased
Railway Infrastructure.
Non-Corridor Works
9.4 Nothing in this agreement is intended to, or will
in any way limit the State's right or ability to
construct Railway Infrastructure on land other
than Corridor Land.
Right to connect
9.5 Without limiting clause 9.2, the Network Lessee
acknowledges that the State may construct Railway
Infrastructure on land which is not Corridor Land
but which may connect with Leased Railway
Infrastructure, in which case the Network Lessee
agrees:
(a) at the cost of the Minister, to take all
reasonable steps to facilitate the
connection of such Railway Infrastructure
with Leased Railway Infrastructure under
this agreement provided that the
connection does not unreasonably interfere
48
with the Network Lessee's or Purchaser's
use of the Corridor Land and Leased
Railway Infrastructure for a Permitted Use
or any Approved Additional Use; and
(b) that any such Railway Infrastructure will
not form part of the Leased Railway
Infrastructure, leased under this
agreement.
9.6 Prior to the construction of any railway
infrastructure which may connect in accordance
with clause 9.5, the Minister will consult with
the Network Lessee about the location of any such
proposed connection and, where in the Minister's
opinion it would be in the public interest to do
so, will take into account the interests of the
Network in the location of the connection.
9.7 The Minister will take all reasonable steps (but
without being obliged to incur a Material
Financial Obligation in respect of the same) to
extend to the Network Lessee the benefit of any
warranties and indemnities given by contractors
who perform works under clause 9 or clause 11, in
respect of any liability on the part of the
contractors for defective workmanship.
10 Compensation for works
Interference
10.1 If the Network Lessee or the Purchaser considers
that the construction of works in accordance with
clauses 9.1, 9.2 or 9.5 will unreasonably
interfere with the Network Lessee's or the
Purchaser's use of Corridor Land or Leased
Railway Infrastructure for a Permitted Use or any
Approved Additional Use, it may within 60 days of
receiving notice under clause 9.3(a) give notice
to the Minister of that fact, such notice setting
out:
(a) details of the Permitted Use or any
Approved Additional Use, including the
49
nature and extent of the Permitted Use or
any Approved Additional Use;
(b) the nature of the interference; and
(c) the financial loss estimated to be
suffered by the Network Lessee or the
Purchaser as a result of the works.
10.2 The Minister must in response to a notice under
clause 10.1 and prior to the commencement of
works under clause 9 give notice to the Network
Lessee or the Purchaser (as the case may be)
setting out an offer of compensation (including
nominal compensation) to the Network Lessee or
the Purchaser (as the case may be) for loss
suffered by reason of the construction of the
works.
10.3 The Network Lessee or the Purchaser (as the case
may be) may within 30 days of receipt of an offer
under clause 10.2, by notice to the Minister:
(a) accept the offer; or
(b) elect to have compensation determined in
accordance with the following provisions
of this clause 10.
10.4 If the Network Lessee or the Purchaser has given
the Minister notice of its election under clause
10.3(b), then:
(a) its remedies for any loss, liabilities,
cost or claim in respect of any
construction or works in accordance with
clause 9 are limited to applying for
compensation under this clause 10; and
(b) the Minister may proceed with the
construction of works.
Compensation
10.5 If the Network Lessee or the Purchaser has given
notice under clause 10.3(b), it will:
50
(a) as soon as reasonably practicable give
notice to the Minister that it wishes to
invoke the compensation provisions of this
clause 10; and
(b) ensure that the notice is accompanied by
reasonable particulars of the cause of
loss and the nature and extent of loss
suffered and reasonable quantification of
the loss.
10.6 In the event that the Minister and the Network
Lessee or the Purchaser (as the case may be)
cannot agree appropriate compensation, the matter
will be referred for determination in accordance
with clause 43. Any arbitrator appointed to
determine a dispute in respect of this
clause 10.6 will be instructed to:
(a) decide if and to the extent that the loss
or damage claimed or suffered by the
Network Lessee or the Purchaser has been
or will be caused by the construction of
the works in accordance with clause 9; and
(b) quantify the compensation payable for the
loss or damage suffered on the basis of
the principle that the Network Lessee or
the Purchaser (as the case may be) should
be No Better or Worse Off than if the
construction of works had not been
undertaken.
Minimise disruption
10.7 In undertaking any works in accordance with
clause 9, the Minister will, and will ensure that
his contractors will, take all reasonable steps
to minimise any interference to the Network
Lessee's and the Purchaser's use of the Corridor
Land and Leased Railway Infrastructure for a
Permitted Use or any Approved Additional Use.
Access
10.8 The Network Lessee will take all reasonable steps
available to it to provide the Minister with
51
access to Corridor Land and Leased Railway
Infrastructure to facilitate the construction of
works in accordance with clause 9.
Ownership of works
10.9 Any works constructed under clause 9 will belong
to the Minister. To the extent that those works
constitute Railway Infrastructure on Corridor
Land referred to in clause 9.2(a), that Railway
Infrastructure will form part of the Leased
Railway Infrastructure leased to the Network
Lessee under this agreement.
11 Specific new projects
Urban Passenger Network
11.1 The provisions of clause 10 will not apply:
(a) in respect of the Midland to Bellevue
Extension; and
(b) in respect of the Southern Suburbs Urban
Rail Line Project.
11.2 The Minister agrees to:
(a) take all reasonable steps (having regard
to the nature of the works referred to in
Annexures B and C) to minimise the
interference caused by the works to the
Network Lessee's or the Purchaser's use of
the Corridor Land and Leased Railway
Infrastructure for a Permitted Use or any
Approved Additional Use; and
(b) keep the Network Lessee regularly informed
about the development of plans for works,
the dates for commencement of works, the
program of works and the likely impact of
the works on the Network Lessee or the
Purchaser.
11.3 In the case of the construction of new urban
railway infrastructure on the Kenwick to Jandakot
52
Line, the Network Lessee agrees to swap like for
like infrastructure as contemplated by Annexure
B.
Geraldton
11.4 The Network Lessee agrees that the Minister may
relocate the Narngulu/Geraldton Port Line, as
more particularly described in Annexure D, and
that the provisions of clause 12.4 will apply to
that relocation.
12 Relocation of Lines
Relocation
12.1 The Minister may relocate a Line in accordance
with the provisions of this clause 12 if:
(a) the Line following relocation will access
any Port Authority Land accessed by the
current Line; and
(b) the proposed Line when commissioned will
be Fit for Purpose; and
(c) the Line following relocation is the same
or a better standard than the Line before
relocation; and
(d) the relocation does not have a Material
Adverse Effect on the Network Lessee's
business or the rail freight business
carried on by the Purchaser or carried on
by any person who has access to the
current line under the Access Regime.
12.2 Where the Minister wishes to relocate a Line in a
town, he must provide to the Network Lessee:
(a) not less than 12 months prior written
notice of commencement of construction of
works in respect of the new Line;
53
(b) reasonable details of the new Line,
including its location (which may be
underground or built over land);
(c) reasonable details of the estimated
construction time for the new Line; and
(d) reasonable details of the impact on the
businesses of persons using the Line.
Surrender of old Line
12.3 Upon the later of:
(a) the designation of the land on which the
new Line is situated as Corridor Land
under section 36 of the Act; and
(b) Practical Completion of the works
associated with the new Line,
the Network Lessee will surrender its rights
under this agreement in respect of the old Line
and:
(i) this agreement will apply to the
land on which the new Line is
constructed and which is
designated as Corridor Land;
(ii) the Corridor Land on which the old
Line was constructed shall cease
to be subject to this agreement;
(iii) the Minister will prepare
replacement Maps showing the
location of the new Line and
relevant Corridor Land, which Maps
will form part of this agreement;
and
(iv) the new Line will become Leased
Railway Infrastructure for the
balance of the Term in accordance
with the terms of this agreement.
Interference
54
12.4 If the Network Lessee or the Purchaser considers
that the relocation of a Line in accordance with
this clause 12 will unreasonably interfere with
the Network Lessee's or the Purchaser's use of
the Corridor Land or Leased Railway
Infrastructure for a Permitted Use or any
Approved Additional Use, it may within 30 days of
receiving notice under clause 12.2 give notice to
the Minister of that fact, such notice setting
out:
(a) details of the Permitted Use or any
Approved Additional Use, including the
nature and extent of the Permitted Use or
any Approved Additional Use;
(b) nature of the interference; and
(c) the financial loss estimated to be
suffered by the Network Lessee or the
Purchaser as a result of the relocation or
construction.
Offer of compensation
12.5 The Minister must in response to a notice under
clause 12.4 and prior to the commencement of
works under this clause 12 give notice to the
Network Lessee setting out an offer of
compensation to the Network Lessee or the
Purchaser or both of them (as the case may be)
for loss suffered by reason of the construction
of the works.
12.6 The Network Lessee or the Purchaser (as the case
may be) may within 30 days of receipt of an offer
under clause 12.5, by notice to the Minister:
(a) accept the offer; or
(b) elect to have compensation determined in
accordance with the succeeding provisions
of this clause 12.
Minimum interference
55
12.7 In undertaking any works in accordance with this
clause 12, the Minister will, and will ensure
that his contractors, take all reasonable steps
to minimise any interference to the Network
Lessee's or the Purchaser's use of the Corridor
Land and Leased Railway Infrastructure for
Permitted Uses or any Approved Additional Use.
Access for Minister
12.8 Each of the Network Lessee and the Purchaser will
take all reasonable steps available to it to
provide the Minister with access to Corridor Land
and Leased Railway Infrastructure and to
facilitate the construction of works in
accordance with this clause 12.
Ownership of works
12.9 Any works constructed by the Minister under this
clause 12 will belong to the Minister. To the
extent that any such works constitute Railway
Infrastructure, that Railway Infrastructure will
form part of the Leased Railway Infrastructure as
from surrender of the old line under clause 12.3.
Dispute
12.10 If the Network Lessee or the Purchaser has given
notice under clause 12.6(b), then its remedies
for any loss, liabilities, cost or claim arising
from the relocation or construction of works in
accordance with clause 12 are limited to applying
for compensation under this clause 12.
12.11 Where the Network Lessee or the Purchaser
believes it is entitled to compensation under
this clause 12, it must:
(a) as soon as reasonably practicable give
notice to the Minister that it wishes to
invoke the compensation provisions of this
clause 12; and
(b) ensure that such notice is accompanied by
reasonable particulars of the cause of
loss and the nature and extent of loss
56
suffered and reasonable quantification of
the loss.
12.12 In the event that the Minister and the Network
Lessee or the Purchaser (as the case may be)
cannot agree appropriate compensation, the matter
will be referred for determination in accordance
with clause 43. Any arbitrator appointed to
determine a dispute in respect of this clause 12
will be instructed to:
(a) decide if, and to the extent to which the
loss or damage suffered by the Network
Lessee or the Purchaser (as the case may
be) has been or will be caused by the
construction of the works in accordance
with this clause 12; and
(b) quantify the compensation payable for the
loss or damage suffered or to be suffered
in accordance with the principle that the
Network Lessee or the Purchaser (as the
case may be) should be No Better or Worse
Off than if the construction of the works
in accordance with clause 12 had not been
undertaken.
New maps
12.13 Where a new Line becomes Leased Railway
Infrastructure, the Minister will prepare the
necessary maps in respect of the new Line and
Corridor Land in addition to or in substitution
for existing Maps (as determined by the
Minister).
13 Network Lessee's works
Railway Infrastructure
13.1 Without limiting the obligations of the Network
Lessee under clause 15, the Network Lessee may at
its cost upgrade, replace or add to any of the
Leased Railway Infrastructure provided that such
upgrade, replacement or addition:
57
(a) does not render the Network Lessee in
breach of its obligations under this
agreement;
(b) based on the extent of knowledge of the
Network Lessee at that time, in the
reasonable opinion of the Network Lessee
is not likely to adversely impair the
exercise of rights by the Minister under
this agreement; and
(c) will not unreasonably interfere with the
rights of third parties in respect of
Corridor Land and Leased Railway
Infrastructure.
13.2 Any upgrade, replacement or addition to Leased
Railway Infrastructure will form part of the
Leased Railway Infrastructure for the purpose of
clause 15, but title in such additional Railway
Infrastructure will only vest in the Minister at
the expiration of the Term provided that the
Network Lessee will not create any Encumbrance
over such infrastructure which will take priority
over the right of the Minister to receive title
to such infrastructure at the end of the Term.
New Works
13.3 Subject to clause 8.13 the Network Lessee may
construct New Works at its own cost provided that
such New Works are substantially used in
connection with a Permitted Use and are of a
standard that a reasonably prudent Network Lessee
of a rail freight business would construct. The
provisions of this clause 13.3 are intended to be
a consent of the Minister for the purposes of
section 47 of the Act.
13.4 Within 12 months of the expiration of the Term,
the Network Lessee may remove any New Works at
its cost, including the cost of making good any
damage to Corridor Land or Railway Infrastructure
caused by that removal.
58
Records of New Works
13.5 The Network Lessee will maintain a record of all
works carried on under this clause and under
clause 15 which a reasonably prudent rail Network
Lessee would maintain. These records will be
preserved for the Term and access to them will be
given to the Minister during the Term. On
expiration of the Term these records or copies
(if and to the extent that the Network Lessee is
obliged by law to keep the original records) will
be delivered to the Minister.
14 Access
Network Lessee's obligations as to access
14.1 The Network Lessee will have the sole right to
grant third parties access to Leased Railway
Infrastructure, including under the Access
Regime.
Minister's right of access
14.2 At any time during the Term, the Minister may:
(a) in the event of an emergency, without
notice; or
(b) otherwise, upon giving not less than five
Business Days prior notice to the Network
Lessee
enter upon the Corridor Land to:
(c) exercise any right under this agreement;
(d) exercise any power under the Act; or
(e) ascertain whether or not the Network
Lessee is in compliance with its
obligations under this agreement.
59
Private Level Crossings and tunnels
14.3 Each of the Network Lessee and the Purchaser
agree that any person who has the benefit of a
Private Level Crossing or tunnel at the
Commencement Date will (subject to any agreement
with the person to the contrary) continue to do
so throughout the Term and neither the Network
Lessee nor the Purchaser will do anything to
interfere with such person's access to or from
their property.
14.4 The Network Lessee will permit the lawful
construction of new Private Level Crossings or
tunnels approved by the Minister, which do not
unreasonably interfere with the Network Lessee's
or Purchaser's use of the Corridor Land or Leased
Railway Infrastructure for a Permitted Use or any
Approved Additional Use and which do not
compromise the safety of the public.
14.5 At all times during the Term the Network Lessee
will:
(a) have in place (to the reasonable
satisfaction of the Minister) effective
liaison and emergency management plans
with the Police, Fire and Emergency
Services to facilitate the request for
closure of or modification of operations
on the Network in the event of an
emergency;
(b) if requested by the Minister to do so,
make available suitable representatives to
participate in local emergency management
planning and membership of relevant local
area management advisory committees; and
(c) following liaison with the Police, Fire
and Emergency Services, maintain an
emergency management plan for the Toodyay
to Midland Line.
15 Maintenance obligations
60
Systems
15.1 The Network Lessee will throughout the Term
maintain those systems and procedures which are
reasonably necessary to foresee works that may be
required to be undertaken in respect of Corridor
Land (and land adjacent to Corridor Land) and to
Leased Railway Infrastructure in order for the
Network Lessee to comply with its obligations
under this clause 15.
Fit for Purpose
15.2 Throughout the Term, the Network Lessee will
maintain, replace and repair and upgrade all
Leased Railway Infrastructure so that it is Fit
for Purpose.
Initial Performance Standards
15.3 Notwithstanding the definition of "Fit for
Purpose" in clause 1.2 but without limiting the
obligations of the Network Lessee to comply with
sections 12(6), (7) and (8) of the Act, the
Minister and the Network Lessee agree that unless
changed in accordance with this clause 15, Fit
for Purpose in respect of the Leased Railway
Infrastructure comprising those parts of the
Network listed in Schedule 4, means the Leased
Railway Infrastructure being in the physical
condition necessary to meet the Initial
Performance Standards or any other standard
agreed to by the Minister and the Network Lessee
from time to time.
Works to land
15.4 Without limiting clause 15.2 the Network Lessee
will do all things reasonably necessary in its
power in respect of Corridor Land and adjoining
land to comply with clause 15.2. Such things
include the maintenance and replacement (if
necessary) of all bridges on the Network.
15.5 Where it is or ought to be reasonably apparent to
the Network Lessee that works are required to be
undertaken on, or things done to land adjacent
61
to, Corridor Land so that the Leased Railway
Infrastructure is Fit for Purpose and that to do
so the Minister must exercise a power under the
Act, the Network Lessee will give notice as soon
as practicable to the Minister of the exercise of
power that is required. Where the power is
required to be exercised by the Minister the
Network Lessee's obligations under clause 15.2 in
respect of the action required to be done by the
power are suspended until the power is exercised.
Return Condition
15.6 Upon the expiration of the Term, the Network
Lessee must ensure that Leased Railway
Infrastructure must be in a condition no worse
than the Return Condition.
Maintenance Plan
15.7 No later than six months (or earlier than 12
months) prior to each Five Year Anniversary the
Network Lessee will submit to the Minister a
Maintenance Plan showing the works, repairs,
replacements, maintenance, additions and other
things that is reasonably expected to be
necessary to be undertaken by the Network Lessee
for each year during the five year period
commencing on the Five Year Anniversary in order
to keep the Leased Railway Infrastructure Fit for
Purpose, based on the then prevailing Performance
Standards, and to ensure that the Leased Railway
Infrastructure will be returned to the Minister
in a condition no worse than the Return
Condition.
15.8 The Maintenance Plan submitted under clause 15.7
will specify:
(a) reasonable details of what works will be
carried out in respect of the Leased
Railway Infrastructure;
(b) when those things are planned to be
carried out; and
62
(c) a reasonable estimate for each year of the
money to be spent on such things.
15.9 The Minister will, within 90 days of receipt of
the Maintenance Plan under clause 15.7, advise
the Network Lessee of any amendment to the
Maintenance Plan which the Minister considers
reasonably necessary for the Network Lessee to
comply with its obligations under this clause 15.
15.10 If the Network Lessee disputes the amendments
required by the Minister it may do so by invoking
the dispute resolution provisions of clause 43.
15.11 Notwithstanding that there is a dispute to be
resolved under clause 15.10, the Network Lessee
will do all things set out in the Maintenance
Plan when required by the Maintenance Plan
submitted under clause 15.7.
15.12 If a dispute under clause 15.10 is resolved in
the favour of the Network Lessee, the Minister
will pay to the Network Lessee any additional
expenditure that the Network Lessee has incurred
under this clause 15, that it would not otherwise
have been required to incur, together with
interest at the Rate calculated on a straight
line basis from the date that the additional
expenditure was incurred until the date of
payment.
Escrow Account
15.13 Prior to the commencement of the final five year
period of the Term, the Network Lessee will:
(a) deposit an amount equal to the aggregate
of the Minimum Expenditure Amounts for the
five year period in an account with a Bank
in the joint names of the Minister and the
Network Lessee; or
(b) provide such security (such as a bank
guarantee) as the Minister reasonably
requires that sufficient moneys will be
deposited from time to time into the
Escrow Account to meet the Minimum
63
Expenditure Amounts prior to the relevant
expenditure becoming payable.
15.14 The moneys in the Escrow Account will be held on
trust jointly for the Minister and the Network
Lessee and will only be used for the purpose of
carrying out maintenance in accordance with the
Maintenance Plan. Interest will accrue for the
benefit of the Network Lessee but will be
reinvested in the Escrow Account.
15.15 The Network Lessee may spend moneys standing to
the credit of the account 48 hours after
providing to the Minister a notice signed by an
Authorised Officer of the Network Lessee
certifying that an obligation has been properly
incurred in connection with the carrying out of
works in accordance with the Maintenance Plan and
specifying the amount of the obligation.
15.16 The balance (including interest) standing in the
Escrow Account at the end of the Term will be
applied:
(a) first to the cost of performing any
outstanding obligations of the Network
Lessee under this agreement; and
(b) then, will be paid to the Network Lessee
not later than 90 days after the end of
the Term.
Grain Network
15.17 The Network Lessee will complete at its cost the
work shown in the Grain Line Strengthening Plan
as the remaining commitment and that remains to
be completed as at the date of this agreement.
The work to be completed on the Tambellup to
Gnowangerup and the Katanning to Nyabing lines
will be completed as soon as reasonably possible.
Unless there is a Material Change in
Circumstances, the Network Lessee will complete
all other work by 30 June 2004.
15.18 The Network Lessee will participate in the Grain
Logistics Committee or such other committee as
64
may be established from time to time to advise
the State on the transportation of grain.
Level Crossings, bridges, tunnels and pedestrian crossings
15.19 The Minister and the Network Lessee agree to take
all reasonable steps to:
(a) fulfil the obligations of the State and
the Commission respectively in respect of
Level Crossings as described in the
Railway Crossings Protection in Western
Australia - Policy and Guidelines; and
(b) to co-operate with a Local Government in
the performance of a Local Government's
obligations (under the Public Works Xxx
0000, the Railways Crossings Protection in
Western Australia - Policy and Guidelines
or otherwise) in respect of Level
Crossings, bridges and tunnels.
15.20 The Network Lessee will maintain all Level
Crossings which provide for access from private
land over the Corridor Land to other private land
and which currently exist on Corridor Land so
they are Fit for Purpose, but at the cost of the
private owner and only if the private owner
agrees to pay and does pay such costs.
Review of Performance Standards
15.21 Twelve months before the end of each Five Year
Anniversary the Network Lessee must (at its own
cost) commission an independent and appropriately
qualified expert to review the compliance by the
Network Lessee with the Performance Standards.
The terms of the engagement and identity of the
expert must be submitted for the approval of the
Minister at least three months prior to the
expert's appointment and the Minister will
promptly and reasonably consider whether to give
his or her approval. Where the terms of
engagement of the expert proposed is not approved
by the Minister, the Network Lessee must resubmit
amended terms or a new identity for approval
within 30 days of the Minister advising the
65
Network Lessee that his or her approval will not
be given together with reasons for such non-
approval. The report of the expert must be
provided to the Minister six months before the
end of the relevant Five Year Anniversary.
15.22 Within six months, but not later than three
months, before each Five Year Anniversary either
the Minister or the Network Lessee may give
notice to the other proposing an amendment or
addition to or replacement of a Performance
Standard or Performance Standards, if the party
considers that:
(a) compliance with any or all of those
standards will no longer result in any
Leased Railway Infrastructure being Fit
for Purpose; or
(b) the Network Lessee may comply with a
lesser standard and still meet its
obligations under clause 15.2.
15.23 An amendment to a Performance Standard pursuant
to clause 15.22 may be suggested:
(a) to any part of the Network;
(b) to any type of Leased Railway
Infrastructure;
(c) to any particular Leased Railway
Infrastructure; or
(d) to take into account changes in the
technology of Railway Infrastructure or
otherwise.
15.24 The Minister and the Network Lessee will within
30 days of receiving a notice under clause 15.23
or 15.27 meet in good faith to:
(a) review the relevant Performance Standard;
(b) consider the amendment or addition to or
replacement of a Performance Standard with
a new Performance Standard; and
66
(c) make any necessary amendment to the
prevailing Maintenance Plan.
15.25 If the Minister and the Network Lessee fail to
reach an agreement following meeting in
accordance with clause 15.24, either may invoke
the dispute resolution provisions of clause 43.
15.26 The parties agree that the Performance Standards
will, in totality and in respect of each part of
the Network, set standards which will result in
the Network and each part of it being Fit for
Purpose.
15.27 If a Material Change in Circumstances occurs, the
Network Lessee may within six months of the
occurrence of such event, give notice to the
Minister proposing an amendment or addition to or
a replacement of a Performance Standard or
Performance Standards if the Network Lessee
considers that:
(a) compliance with any or all of those
standards will no longer result in any
Leased Railway Infrastructure being Fit
for Purpose; or
(b) the Network Lessee may comply with the
lesser standard and still meet its
obligations under clause 15.2; and
the Minister is reasonably satisfied (taking into
account the interests of any party to a relevant
Access Agreement, Customer Contract or of any
State Agreement Party) it would be unnecessary
for the Network Lessee to comply with that
standard then the provisions of clauses 15.23 and
15.24 (but not clause 15.25) apply to such
notice.
Rail Safety Act accreditation
15.28 The Network Lessee will make (or will take
reasonable steps to ensure that a Related Entity
of it makes) application for accreditation as an
owner under the Rail Safety Act within 90 days of
the Director General under that Act formally
67
advising the Network Lessee in writing that it
considers that the then safety management
responsibilities of the Network Lessee render it
necessary for it (or a Related Entity of it) to
be so accredited.
16 Surrender of Lines
Surrender right
16.1 At any time after six years from the
Commencement Date, the Network Lessee may request
the Minister to terminate this agreement in
respect of a particular Line in accordance with
the following provisions of this clause 16.
16.2 If:
(a) there has been a Significant Reduction in
Use in respect of a Line during a
Financial Year other than as a result of
Force Majeure or the Network Lessee's
breach of this agreement; and
(b) the continued maintenance of all or the
relevant part of that Line in accordance
with clause 15 would for the following
three years or more, be Uneconomic; and
(c) the Network Lessee is otherwise capable of
performing its obligations under this
agreement even if that Line was no longer
used by the Network Lessee,
then within three months of the end of the
relevant Financial Year the Network Lessee may
give notice of that fact to the Minister.
Information
16.3 The notice provided under clause 16.2 must be
accompanied by such information as is reasonably
necessary for the Minister to form an opinion
whether or not the continued maintenance of the
Line is Uneconomic, together with the following
information:
68
(a) gross tonnes of freight carried on the
Line and Access Revenue for the previous
three Financial Years and as reasonably
anticipated for the following Financial
Year for that Line;
(b) costs incurred by the Network Lessee in
performing maintenance on the Line for the
Financial Year and the costs estimated to
be incurred during the three Financial
Years following the end of the relevant
Financial Year;
(c) capital expenditure reasonably anticipated
as being required to be spent on the Line
in the three Financial Years following the
end of the relevant Financial Year;
(d) details of access; and
(e) details of all material liabilities
associated with the continued use of the
Line.
Compensation on termination
16.4 If each of the tests in clause 16.2 have been
satisfied, the Minister must, within six months
of receipt of a notice which complies with clause
16.3, either:
(a) agree to the termination of this agreement
in respect of the Line; or
(b) have proposed to the Network Lessee the
payment of moneys or other arrangements
with the Network Lessee or other person so
that maintenance of the Line by the
Network Lessee for that term is not
Uneconomic.
16.5 If the Minister gives notice under clause
16.4(a), this agreement will, in respect of that
Line only, terminate at midnight on the following
30 June. Termination under this clause 16.5 is
without prejudice to the rights of the parties in
respect of such Line arising at any time up to
69
that time. Termination under this clause 16.5
will not reduce the Rent payable by the Network
Lessee.
16.6 If the Minister gives notice under clause 16.4(b)
in respect of a Line, then the Minister will pay
the amounts specified in the notice on the dates
specified in the notice.
16.7 The Minister may, not later than six months
prior to the end of any term specified in a
notice given under clause 16.4(b), provide a
further notice in respect of that Line and:
(a) if the Minister does so, then the
provisions of clause 16.6 apply to such
notice; or
(b) if the Minister does not, then this
agreement will terminate in respect of
such Line on expiration of the relevant
period.
16.8 The provisions of this clause 16 do not apply to:
(a) the Kwinana to Kalgoorlie Line;
(b) the Kalgoorlie to Esperance Line;
(c) the Perth to Bunbury Line;
(d) the Perth to Geraldton Line;
(e) the Brunswick to Collie Line; or
(f) the Kalgoorlie to Xxxxxxx Line.
17 Taxes
17.1 The Network Lessee must pay or indemnify the
Minister for:
(a) all Taxes assessed against the Minister in
respect of the Corridor Land and Leased
Railway Infrastructure during the Term;
70
(b) all charges levied in respect of the
provision of Services to the Corridor
Land; and
(c) any charges imposed by any utility in
respect of the repair of the Leased
Railway Infrastructure in connection with
the provision of Services.
17.2 Where a Tax or charge to which clause 17.1
applies:
(a) is assessed in respect of land part of
which is Corridor Land, then the Network
Lessee will pay that portion of the Tax as
the area of the Corridor Land bears to the
total area of the land in respect of which
the Tax is assessed; and
(b) is assessed on Corridor Land in respect of
a period which includes time which is not
within the Term, the Network Lessee will
pay the same proportion of Tax as the
relevant part of the Term bears to the
period in respect of which the Tax is
assessed.
GST
17.3
(a) Unless expressly included, the
consideration for any supply under or in
connection with this agreement does not
include GST.
(b) To the extent that any supply made under
or in connection with this agreement is a
taxable supply, the consideration for that
supply is increased by an amount
determined by the supplier, not exceeding
the amount of that consideration (or its
GST exclusive market value in the case of
non-monetary consideration) multiplied by
the rate at which GST is imposed in
respect of the supply.
71
(c) The amount so determined must be paid by
the recipient of the supply even if the
recipient disputes the determination.
(d) If an adjustment event occurs following a
determination under clause 17.3(b):
(i) the supplier must make a further
determination under clause 17.3 of
the amount of consideration
payable; and
(ii) if the GST component of that
consideration differs from the
amount originally determined, the
amount of the difference must be
paid by, refunded to or credited
to the recipient as the case may
be.
(e) An amount payable under this clause 17.3
in respect of GST must be paid on or
before the 14th day of the month after the
month in which the taxable supply to which
it relates was made, provided that if at
any time the day on which GST is payable
to the Australian Taxation Office by
suppliers who are required to pay GST on a
monthly basis to the Australian Taxation
Office alters from the 21st day of the
month after the month in which the taxable
supply was made, then an amount payable
under this clause 17.3 in respect of GST
must be paid at least 7 days before the
day on which the supplier must pay the GST
to the Australian Taxation Office.
(f) Except to the extent the parties have
agreed to the contrary in accordance with
clause 17.3(g), the parties to this
agreement will in respect of any supply to
which this clause 17.3 applies, provide a
tax invoice to the other relevant party
within 7 days after the date of the supply
so that that party can claim an input tax
credit for (or seek a refund of) any
72
amount paid under this agreement in
respect of GST.
(g) The parties will use their respective best
endeavours to agree protocols for the
provision of tax invoices in respect of
supplies to be made under this agreement
and any such protocols as are agreed shall
take precedence over the provisions of
clause 17.3(f) in relation to the supplies
to which those protocols relate. Each of
the Network Lessee and the Guarantor agree
to remain registered for GST purposes
under the A New Tax System (Goods and
Services Tax ) Xxx 0000 for the term of
the lease.
17.4 Subject to clause 17.3, the Minister and the
Network Lessee will take all steps lawfully and
reasonably available to them to minimise the
financial effect (including on cash flow) on each
other by reason of things done under this
agreement including, without limitation, the
raising of invoices by the Minister in respect of
Rent and in respect of capital works which may at
the end of the Term form part of the Leased
Railway Infrastructure owned by the State.
18 Force Majeure, damage and destruction
Force Majeure notice
18.1 If a party considers that an event of Force
Majeure has occurred the party must give the
other parties prompt notice of that event,
specifying:
(a) the event of Force Majeure in detail;
(b) which of the party's obligations are or
will be affected by that event;
(c) the action that the party has taken and
proposes to take to remedy or overcome the
consequences of that event;
73
(d) the party's estimate of the length of time
during which the party will be unable to
carry out any of the party's obligations
owing to the Force Majeure;
(e) the party's opinion of the consequences
likely to flow from that Force Majeure;
(f) an estimate of the costs that the party
will incur to remedy the situation; and
(g) details of all insurance moneys on which
the party will be able to use in making
good any damage caused by the Force
Majeure.
Information
18.2 After giving a notice under clause 18.1, the
party must:
(a) continue to provide the other parties with
all relevant information pertaining to the
Force Majeure as and when it becomes known
to the party; and
(b) use its reasonable endeavours to remedy
the Force Majeure promptly provided that
nothing in this clause 18.2 obliges the
Network Lessee to settle any industrial
dispute.
Meeting
18.3 The Network Lessee and the Minister must meet
within five Business Days of the service of a
notice under clause 18.1 to determine:
(a) if the event of Force Majeure is covered
by insurance and if so the extent of that
insurance cover;
(b) the estimated length of time during which
the Force Majeure is likely to continue;
and
74
(c) if the Leased Railway Infrastructure has
been or is being damaged as a consequence
of the Force Majeure, and if so the extent
of the damage.
Suspension of obligations
18.4 (a) During the continuance of any Force
Majeure, each party's obligations under
this agreement which are affected by that
Force Majeure will be suspended in
accordance with clause 18.4(b) to the
extent that the affected party is
prevented by Force Majeure from complying
with those obligations; and
(b) any period of time specified in this
agreement within which a particular
obligation must be performed will be
extended by a period of time equal to the
period of time during which the affected
party is prevented by Force Majeure from
performing that obligation.
Force Majeure ceases
18.5 (a) The Minister or the Network Lessee may
each notify the other that it is of the
opinion that an event of Force Majeure has
ceased or been overcome; and
(b) as soon as Force Majeure ceases, the
affected party must recommence performance
of all its affected obligations under this
agreement.
Alternative arrangements
18.6 During the continuance of Force Majeure, each
party must use its reasonable endeavours to meet
such obligations under this agreement as are
capable of being met notwithstanding that Force
Majeure.
Repair and replacement of Railway Infrastructure
75
18.7 Subject to clause 18.8, if due to an event of
Force Majeure or any other event, Leased Railway
Infrastructure is:
(a) destroyed, then the Network Lessee will at
its cost replace the Leased Railway
Infrastructure with Railway Infrastructure
of such standard so that the relevant
Lines and Railway Infrastructure are Fit
for Purpose; or
(b) damaged, then the Network Lessee will at
its cost repair the Leased Railway
Infrastructure so that the relevant Lines
and Railway Infrastructure are Fit for
Purpose.
18.8 The obligations of the Network Lessee under
clause 18.7 do not apply to a Line which would,
notwithstanding the damage or destruction of
Leased Railway Infrastructure, qualify for
surrender under clause 16.
18.9 The Network Lessee will perform its obligations
under clause 18.7 as soon as reasonably
practicable following the event which causes the
damage or destruction.
19 Insurance
Network Lessee to maintain insurance
19.1 Provided that such insurance is available in the
insurance market on reasonable terms (having
regard to the nature of the risk insured) the
Network Lessee will maintain during the Term
comprehensive general public liability insurance
with a reputable insurance company covering all
material operational risks as Network Lessee,
including cover against claims for bodily injury,
death or property damage occurring on, in or
about the Corridor Land or on, in or about any
Leased Railway Infrastructure with a combined
single limit of not less than $250 million
(adjusted by clause 7.1) (or such other
appropriate amount as agreed by the Network
76
Lessee and the Minister) for each occurrence of
personal injury, death and property damage.
19.2 In addition to the insurance required under
clause 19.1, the Purchaser and the Network
Lessee, as operator and owner respectively under
the Rail Safety Act, will maintain during the
Term such insurance as is required from time to
time under the Rail Safety Act.
Insureds
19.3 Each insurance effected pursuant to clauses 19.1
and 19.2 will name each of the Network Lessee,
the Purchaser, the Minister, the State and the
Commission jointly and severally as an insured
party.
Supply details of insurance
19.4 The Network Lessee must:
(a) provide the Minister with current
certificates of insurance for each
insurance policy at the Commencement Date
and prior to each expiry date of a policy;
(b) produce each policy, receipt for premiums
or certificate of currency when required
to do so by the Minister;
(c) ensure that each policy conforms to the
Minister's reasonable requirements from
time to time of which the Network Lessee
is given written notice, including a
provision that a copy of any notice or
demand issued by the insurer to the
Network Lessee is provided to the
Minister;
(d) ensure that each policy contains
provisions for cross liability and waiver
of subrogation rights in favour of the
Minister;
77
(e) not alter the terms or conditions of any
policy without the prior written approval
of the Minister; and
(f) deliver promptly to the Minister
particulars of any alteration of the terms
and conditions of each policy.
Not to invalidate insurance
19.5 The Network Lessee must not do or omit to do
anything which might render:
(a) any insurance effected by the Network
Lessee void or voidable; or
(b) the insurance of any part of the Corridor
Land or the Leased Railway Infrastructure
void or voidable.
Minister's rights
19.6 The Minister may at any time pay any premium on
any policy required to be maintained by the
Network Lessee when due and recover the amount
paid as a debt due from the Network Lessee.
20 Network Lessee's liability and indemnity
Liability
20.1 As between the Minister and the Network Lessee,
the Network Lessee will during the Term be the
occupier of the Corridor Land and will:
(a) be responsible for compliance with all
Laws affecting the use or occupation by it
or grantees of the Corridor Land for a
Permitted Use or Approved Additional Use;
(b) pay all Taxes assessed in respect of the
Corridor Land in accordance with clause
17; and
(c) indemnify the Minister for liability in
accordance with clause 20.3.
78
20.2 The Network Lessee will throughout the Term
comply with all requirements of any Authority and
all Laws in connection with the Corridor Land
including all Environmental Laws and Planning
Laws.
Indemnity
20.3 The Network Lessee will indemnify the Minister
against all damages, losses, liabilities, costs,
expenses and payments suffered or incurred by the
Minister arising from or in connection with:
(a) the exercise of any powers under clause
23;
(b) the Minister not receiving the benefit of
the Network Lessee performing its
obligations under this agreement in
respect of the payment of Rent from the
date of that termination under clause 23
until the date on which the Term would
have expired by effluxion of time;
(c) any amount which the Network Lessee or the
Guarantor claims against the Minister, the
State or the Commission (or any of their
employees, agents and advisers) under the
Fair Trading Act 1987 (WA) or Trade
Practices Xxx 0000 (Cth), in respect of
any misleading or deceptive conduct prior
to the Commencement Date; or
(d) any contamination of the Corridor Land
arising because of the Network Lessee's
use of Contaminants on, in, under or above
the Corridor Land after the Commencement
Date,
including in each case, legal costs and expenses
relating to any of those matters on a
solicitor/client basis. This indemnity is not
affected by the Minister accepting a repudiation
of this agreement by the Network Lessee or by
exercising powers under clause 23.
79
21 Warranties
Warranties by the State
21.1 The Minister warrants and agrees with the Network
Lessee that as at the date of this agreement and
as at the Commencement Date:
(a) the Minister has legal capacity under the
Act to enter into and observe the
Minister's obligations under this
agreement on behalf of the State, and has
in full force and effect all
authorisations necessary to enter into
this agreement, observe obligations under
them and allow them to be enforced and his
obligations under the agreement are valid
and binding and are enforceable against
him in accordance with its terms;
(b) the Commission has legal capacity under
the Act to enter into and to observe the
Commission's obligations under this
agreement on its behalf and as agent of
the State of Western Australia and has in
full force and effect all authorisations
necessary to enter into this agreement,
observe obligations under them and allow
them to be enforced and its obligations
under the agreement are valid and binding
and are enforceable against it in
accordance with its terms;
(c) the State has good title to the Corridor
Land and Leased Railway Infrastructure to
enable the Minister to grant the rights
and powers to the Network Lessee under
this agreement;
(d) except for the Existing Third Party
Interests the Corridor Land is not subject
to any Encumbrance which would
unreasonably interfere with the use by the
Network Lessee of the Corridor Land or
Leased Railway Infrastructure for a
Permitted Use;
80
(e) except for the Non-Corridor Leased Railway
Infrastructure, the Leased Railway
Infrastructure is situated on Corridor
Land and within the boundaries of the
Corridor Land shown on the Maps;
(f) the Corridor Land along with the Corridor
Land NarrowGauge is that land described in
the Corridor Land Designation Order and in
the Maps to the scale shown on the Maps;
(g) there is no Railway Infrastructure
necessary for use by the Network Lessee
which is on any land referred to in
clauses 3.2(a), (b) or (e); and
(h) the Leased Railway Infrastructure and the
Corridor Land (together with the
Communications and Signalling Agreement)
comprise all land, railway infrastructure
and rights currently used by the
Commission in the conduct of its below
rail business.
Network Lessee's warranties
21.2 The Network Lessee, the Purchaser and the
Guarantor each represent, warrant and agree with
the State that at the date of this agreement:
(a) it has been duly incorporated as a company
limited by shares in accordance with the
laws of Australia , is validly existing
under those laws and has power and
authority to carry on its business as it
is now being conducted; and
(b) it has power to enter into and observe its
obligations under this agreement; and
(c) it has in full force and effect the
authorisations necessary to enter into
this agreement, observe obligations under
them and allow them to be enforced; and
(d) its obligations under this agreement are
valid and binding and are enforceable
81
against it in accordance with its terms;
and
(e) this agreement and the transactions under
it do not contravene its constituent
documents (if any) or any law, regulation
or official directive or any of its
obligations or undertakings by which it or
any of its assets are bound or cause a
limitation on its powers or the powers of
its directors to be exceeded; and
(f) the most recent audited Financial
Statements of it (if any) and audited
consolidated Financial Statements of it
and its subsidiaries (if any) are a true,
fair and accurate statement of its
financial position and their consolidated
financial position as at the date to which
they are prepared and disclose or reflect
all their actual and contingent
liabilities and subsequent events; and
(g) there has been no material change in the
financial position of it or in the
consolidated financial position of it and
its subsidiaries since the date (if any)
to which the audited Financial Statements
of it and the audited consolidated
Financial Statements of it and its
subsidiaries were last prepared before the
date of this agreement; and
(h) it has fully disclosed in writing to the
Minister all facts relating to it and its
subsidiaries and anything in connection
with them which are material to the
assessment of the nature and amount of the
risk undertaken by the Minister in
entering into this agreement and doing
anything in connection with them; and
(i) there is no pending or threatened action
or proceeding affecting it or any of its
subsidiaries or any of their respective
assets before a court, governmental
agency, commission or arbitrator; and
82
(j) neither it nor any of its subsidiaries has
immunity from the jurisdiction of a court
or from legal process (whether through
service of notice, attachment prior to
judgment, attachment in aid of execution,
execution or otherwise); and
(k) it does not enter into this agreement in
the capacity of a trustee of any trust or
settlement; and
(l) it is the beneficial owner of and has good
title to all property held by it or on its
behalf and all undertakings carried on by
it; and
(m) it is a person who complies with the
requirements of section 12(3) of the Act.
22 Disclaimers and acknowledgments
22.1 The Network Lessee, the Purchaser and the
Guarantor each represent, warrant and agree with
the Minister that:
(a) no representation or warranty, express or
implied, by the Minister, the Commission
or any other person has (except as
expressly set out in this agreement or the
Sale Agreement) been relied upon by the
Network Lessee, the Purchaser or the
Guarantor in entering into this agreement;
(b) they understand that the preparedness of
the Network Lessee and the Purchaser and
the Guarantor to provide the
representation given in clause 22.1(a) was
one of the key requirements of the
Minister in selecting the Network Lessee
as the party with whom the Minister would
enter into this agreement;
(c) they accept the Corridor Land and Leased
Railway Infrastructure in its current
condition; and
83
(d) the Network Lessee has made enquiries
about and obtained all approvals and
consents necessary for it to operate the
Leased Railway Infrastructure so as to
permit the Purchaser to carry on the
Freight Business.
23 Default and termination
Essential terms
23.1 The following obligations of the Network Lessee
are essential terms of this agreement:
(a) the obligations to pay money under clause
6; and
(b) the obligations to maintain Leased Railway
Infrastructure under clause 15; and
(c) any other obligation a breach of which
would be a Material Event of Default.
Events of Default
23.2 An Event of Default occurs if:
(a) the Rent is at any time unpaid for 30 days
after notice from the Minister demanding
payment; or
(b) the Network Lessee does not comply with
any of its other obligations under this
agreement, whether or not an essential
term, within 120 days of demand by the
Minister to remedy the same provided that
such period will be extended by such
further period of time as is reasonably
necessary (not being more than a further
120 days) to cure such breach if the
Network Lessee is, in the reasonable
opinion of the Minister diligently
pursuing rectification of such breach; or
84
(c) an Insolvency Event occurs with respect to
the Network Lessee, the Purchaser or a
Guarantor.
Minister's right to terminate
23.3 If a Material Event of Default occurs, the
Minister may at his sole discretion:
(a) terminate this agreement by 120 day's
notice in writing to the Network Lessee;
or
(b) recover damages arising from such breach;
or
(c) refer the matter for resolution under
clause 43; or
(d) subject to clause 23.10 recover as a debt
due by the Network Lessee an amount up to
the penalty specified in Schedule 7 in
respect of the breach; or
(e) cure the default in accordance with clause
23.7; or
(f) do all or any of (a) to (e) above.
23.4 If an Event of Default occurs which is not a
Material Event of Default then the Minister may
at his sole discretion:
(a) recover damages arising from such breach;
or
(b) refer the matter for resolution under
clause 43; or
(c) recover as a debt due by the Network
Lessee an amount up to the penalty
specified in Schedule 7 in respect of the
breach for each day that the breach
continues; or
(d) cure the default in accordance with clause
23.7; or
85
(e) do all or any of (a) to (d) above.
Minister's rights on termination or expiration of the Term
23.5 If this agreement terminates for any reason
including under clause 23.3, the Network Lessee
remains liable for and must immediately on demand
by the Minister pay each of the instalments of
Rent remaining unpaid notwithstanding that those
Rent instalments were not otherwise due until
their respective Rent Payment Dates.
23.6 Termination of this agreement is without
prejudice to the rights of the parties subsisting
as at the date of termination.
Step in rights
23.7 In respect of an Event of Default the Minister
may if he has complied with clause 23.2 in
respect of a breach of this agreement take such
action by way of self help to remedy the breach
as he thinks fit including without limitation:
(a) operating and using the Leased Railway
Infrastructure and running its trains and
rolling stock on the Network to carry
goods in order that the obligations under
the Customer Contracts or the State
Agreement Obligations are performed; and
(b) carrying out any maintenance required to
be undertaken in accordance with clause
15, and the Network Lessee will take all
steps reasonably necessary to assist the
Minister in doing anything under this
clause 23.7.
and the Network Lessee will take all steps
reasonably necessary to assist the Minister in
doing anything under this clause 23.7.
Assignment and novation of contracts on Termination
23.8 If this agreement is terminated by the Minister
under clause 23.3 then:
86
(a) the Minister may within a further period
of six months give notice to the Purchaser
terminating any right of the Purchaser to
use the Leased Railway Infrastructure,
notwithstanding any understanding,
arrangement or agreement to the contrary
between the Network Lessee and the
Purchaser;
(b) for a period of two years the Purchaser
will make available to the Minister at no
cost such of the locomotives and rolling
stock then used or required to be used by
the Purchaser in Western Australia for the
purpose of performing any obligation under
the Grain Contract;
(c) the Minister will take all steps to
perform the obligations of the Network
Lessee under the Access Arrangements; and
(d) the Network Lessee will:
(i) execute and cause its successor to
execute documents and do
everything else necessary or
appropriate to be done in respect
of paragraphs (a) or (b) above;
and
(ii) use its best endeavours (short of
paying money or providing other
valuable consideration) to cause
relevant third parties to do
likewise.
Infrastructure of the Purchaser
23.9 Upon termination of this agreement the Purchaser
may within 12 months of such termination remove
any Railway Infrastructure owned by it which is
situated on Corridor Land provided that the
Purchaser must do so carefully and make good any
damage or loss caused and leave the site from
which the Railway Infrastructure was removed in a
safe and unpolluted state.
87
Penalties
23.10 This clause 23.10 applies to the Minister's right
to recover a penalty under clause 23.3(d) or
clause 23.4(c):
(a) the amount of the penalty will be
determined by the Minister in accordance
with this clause 23.10;
(b) the Minister will before determining a
penalty make reasonable enquiries of the
Network Lessee to determine either the
quantum of damages suffered by the
Minister in respect of a Material Event of
Default or Event of Default or the
reasonable costs which could be expected
to be incurred by the Network Lessee or
the Minister if the Network Lessee were to
remedy such Material Event of Default or
Event of Default; and
(c) the maximum penalty which the Minister may
recover in respect of a particular
Material Event of Default or Event of
Default is the amount reasonably
determined by the Minister in respect of
that default in accordance with clause
23.10(b).
24 [This clause has been deliberately left blank].
25 Sharing of information, reporting and co-operation
25.1 Throughout the Term each of the Minister, the
Commission, the Network Lessee and the Purchaser
will appoint a person as Information
Representative and will make that person
available as the point of contact through which
another party:
(a) may request access to Relevant
Information; and
88
(b) will provide Relevant Information to the
other party.
Any party may replace its Information
Representative from time to time provided notice
of that replacement has been given to the other
parties.
25.2 Each party will comply with a reasonable request
of another party for copies of Relevant
Information, provided that the other party pays
the reasonable costs of providing such
information.
25.3 Each party will throughout the Term take all
reasonable steps to preserve copies of all
Existing Relevant Information in its possession
at the Commencement Date.
25.4 Upon completion of any material works under
clause 13 or clause 15 the Network Lessee will
give to the Commission and the Minister copies of
the drawings and plans for such works.
25.5 Within 120 days after the end of each agreed
accounting period during the Term the Network
Lessee will provide the following information to
the Minister:
(a) audited Financial Statements for the
Network Lessee and the Guarantor;
(b) gross tonnes of freight carried (by all
users) during the relevant period on each
section of Line;
(c) number of track kilometres in use;
(d) numbers of trains (freight and passenger)
for the relevant period over each section
of Line; and
(e) a statement signed by two directors of the
Network Lessee certifying that to the best
of their knowledge, information and
belief:
89
(i) no Material Event of Default has
occurred which was not notified to
the Minister; and
(ii) the Network Lessee has complied
with its obligations under clause
15, including compliance with the
Performance Standards.
25.6 If the Network Lessee is in default under any
agreement with a financier which relates to this
agreement or to the Leased Railway
Infrastructure, the Network Lessee will provide
the Minister with copies of all financial
information which the Network Lessee provides to
the financier whilst that default is subsisting.
25.7 The Network Lessee will inform the Minister
immediately following any continuous period of
three months of non-compliance with any
Performance Standard.
25.8 Throughout the Term the Commission, the Network
Lessee and the Purchaser agree to co-operate with
each other and act in good faith and to take all
reasonable steps to ensure that to the extent
they are required to maintain the accreditation
of the Commission, the Purchaser or the Network
Lessee under the Rail Safety Act, there is in
place all interface agreements and protocols as
is required between them to meet any of those
parties' obligations under the Rail Safety Act.
26 Stamp duty
26.1 The Network Lessee and the Minister agrees that
the Rent includes stamp duty on this agreement,
which will be paid by the Minister.
26.2 The Network Lessee agrees not to dispute the
assessment of stamp duty on this agreement or to
seek any refund of such duty.
26.3 The Minister will indemnify the Network Lessee
for any liability for stamp duty or rental
90
business duty payable in respect of this
agreement.
27 Notices
27.1 A notice, approval, consent or other
communication in connection with this agreement:
(a) may be given by an Authorised Officer of
the relevant party;
(b) must be in writing in the English
language;
(c) must be marked for the attention of the
person identified in paragraph (d); and
(d) must be left at the address of the
addressee, or sent by prepaid ordinary
post (airmail if posted to a place outside
the country in which it is posted) to the
address of the addressee or sent by
facsimile to the facsimile number of the
addressee which is specified in this
clause or if the addressee notifies
another address or facsimile number then
to that address or facsimile number.
The address and facsimile number of each
party is:
Minister
Attention: The Minister
Address: 00xx Xxxxx
Xxxxx Xxxxx
0 Xxxxxxxx Xxxxxx
Xxxx Xxxxx XX 0000
Facsimile: (00) 0000 0000
Commission
Attention: The Commissioner
Address: Xxxxxxxx Xxxxxx
Xxxx Xxxxxx
Xxxx Xxxxx XX 0000
Facsimile: (00) 0000 0000
Treasurer
91
Attention: Under Treasurer
Address: 00xx Xxxxx
000 Xx Xxxxxxx Xxxxxxx
Xxxxx XX 0000
Facsimile: (00) 0000 0000
Network Lessee
Attention: Company Secretary
Address: 00xx Xxxxx
00 Xxx Xxxxxxxxx
Xxxxx XX 0000
Facsimile: (00) 0000 0000
Purchaser
Attention: Company Secretary
Address: 00xx Xxxxx
00 Xxx Xxxxxxxxx
Xxxxx XX 0000
Facsimile: (00) 0000 0000
Guarantor
Attention: Company Xxxxxxxxx
Xxxxxxx 00xx Xxxxx
00 Xxx Xxxxxxxxx
Xxxxx XX 0000
Facsimile: (00) 0000 0000
28 Assignment and charging
No interest to be created without consent
28.1 Subject to clause 28.2 and clause 28.6, the
Network Lessee is not, without the Minister's
consent, to assign all or any of its rights under
this agreement or create in favour of any person
an interest in this agreement, in the Corridor
Land or in the Leased Railway Infrastructure, or
allow any person to use or occupy the Corridor
Land or Leased Railway Infrastructure other than
in accordance with the terms and conditions of
this agreement, the Access Regime or as required
by law.
92
Requirements for assignment
28.2 The Network Lessee may only assign all (but not
part) of its rights under this agreement if:
(a) at least 90 days before the date of the
proposed assignment, the Network Lessee:
(i) applies for the Minister's
consent; and
(ii) supplies to the Minister evidence
acceptable to the Minister (acting
reasonably) that the proposed
assignee is experienced in and of
good reputation in relation to
maintaining and operating a rail
freight network permitted by this
agreement, and is financially able
to operate and maintain that
network and is or will be at the
date of assignment accredited as
an owner and operator under the
Rail Safety Act and that it will
comply with section 12(3) of the
Act; and
(iii) has remedied any outstanding Event
of Default on the Network Lessee's
part or the Minister has waived
the Event of Default; and
the Minister consents to the assignment;
(b) the Network Lessee delivers to the
Minister, before the date of the proposed
assignment, a completed agreement (or
deed), in a form prepared by and approved
by the Minister, by which:
(i) the proposed assignee agrees with
the Minister to be bound by this
agreement, and any subsisting
agreement between the Commission
and the Network Lessee for the
provision of services or of access
or the sharing of infrastructure
93
as from the date that the
assignment takes effect; and
(ii) the Guarantor procures that a
party of at least the financial
standing of the Guarantor gives to
the Minister a guarantee and
indemnity in the terms of clause
46 in respect of the liability of
the assignee;
(c) the Network Lessee pays to the Minister on
demand the Minister's expenses, including
legal costs,
(i) incurred in making enquiries to
satisfy itself concerning the
matters specified in
clause 28.2(a)(ii); and
(ii) in connection with the
preparation, completion and
stamping of the assignment and any
other related documents, and the
stamp duty on all those documents;
(d) if requested by the Minister, the Network
Lessee arranges for the proposed assignee
or sublessee to obtain from a bank or
other person acceptable to the Minister a
guarantee of the obligations under this
agreement to be assumed by the proposed
assignee in respect of any amount payable
under the agreement; and
(e) there is no subsisting Material Event of
Default.
Network Lessee liability
28.3 The Network Lessee remains fully liable under
this agreement if the Network Lessee assigns this
agreement or creates an interest in this
agreement, the Corridor Land or the Leased
Railway Infrastructure in favour of any other
person, whether or not the Network Lessee has
complied with the requirements set out in clause
94
28.2. If the Network Lessee has complied with
clause 28.2, the Network Lessee shall not be
liable for any of the obligations of the assignee
assumed under any agreement or deed entered into
in accordance with clause 28.2(b).
Exclusion of statutory provisions
28.4 The provisions of sections 80 and 82 of the
Property Law Xxx 0000 do not apply to this
agreement.
Costs and expenses
28.5 The Network Lessee is to pay to the Minister on
demand all reasonable fees and expenses payable
by the Minister to any consultant engaged by the
Minister in connection with a proposed assignment
or sub-letting.
Charging
28.6 The Minister, subject to the execution by each
such Permitted Chargee of an agreement with the
Minister (to which the Network Lessee shall also
be a party) in such reasonable form as the
Minister may require and which shall provide for
inter alia the matters listed below, hereby
consents to the Network Lessee's assigning by way
of security, mortgaging, charging or otherwise
creating a security (as principal or surety) in
favour of any of the lenders, financiers or other
credit providers (or agent or trustee for those
lenders, financiers or other credit providers)
(each a "Permitted Chargee") in connection with
the financing or refinancing of the Network
Lessee's obligations under this agreement
(including the payment of the Initial Rent) over
the Network Lessee's right, title and interest
under or derived from this agreement. The
matters referred to are:
(a) the Minister shall, contemporaneously with
giving to the Network Lessee any notice of
an Event of Default or a Material Default
under this Agreement, or any notice of an
event or circumstance that if not cured
95
within a specified period of time will or
may give rise to such an Event of Default
or Material Default, give a copy of that
notice to the Permitted Chargee or, if
more than one, their appointed agent;
(b) the Permitted Chargee or Permitted
Chargees shall be given a reasonable
opportunity over and above that afforded
to the Network Lessee to effect a cure of
any Event of Default or Material Default
prior to the Minister exercising any right
to terminate this agreement;
(c) the appointment by a Permitted Chargee of
a controller in respect of the Network
Lessee shall not of itself constitute an
Event of Default or a Material Default;
(d) the exercise by a Permitted Chargee of any
power of sale in respect of the whole or
any part of the assets or undertaking of
the Network Lessee shall not of itself
constitute an Event of Default or a
Material Default and shall be permitted,
subject to compliance with clause 28.2 in
relation to any consequent assignment of
the rights and any novation by any third
party of the obligations of the Network
Lessee under this agreement; and
(e) the Permitted Chargee shall,
contemporaneously with giving to the
Network Lessee any notice of default under
any agreement between the Permitted
Chargee and the Network Lessee, or any
notice of an event or circumstance that if
not cured within a specified period of
time will or may give rise to such an
event of default, give a copy of that
notice to the Minister.
29 Exercise of rights
A party may exercise a right, power or remedy at its discretion, and
separately or concurrently with another right, power or remedy. A
96
single or partial exercise of a right, power or remedy by the party
does not prevent a further exercise of that or of any other right,
power or remedy. Failure by the party to exercise or delay in
exercising a right, power or remedy does not prevent its exercise. A
party is not liable for any loss caused by the exercise or attempted
exercise of, failure to exercise, or delay in exercising the right,
power or remedy.
30 Waiver and variation
A provision of or a right created under this agreement may not be
waived or varied except in writing signed by the party or parties to
be bound.
31 Approvals and consents
By giving any approval or consent, a party does not, and is not to be
taken to, make or give any warranty or representation as to any
circumstance relating to or the subject matter of the consent or
approval.
32 Remedies cumulative
The rights, powers and remedies provided in this agreement are
cumulative with and not exclusive or limiting of the rights, powers
or remedies provided by law or equity independently of this
agreement.
33 No merger
The warranties, undertakings and indemnities in this agreement do not
merge on completion or termination of this agreement for whatever
reason.
34 Indemnities
34.1 Each indemnity in this agreement is a continuing
obligation, separate and independent from the
other obligations of the parties and survives
termination of this agreement for whatever
reason.
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34.2 It is not necessary for a party to incur expense
or make payment before enforcing a right of
indemnity conferred by this agreement.
34.3 Except as expressly provided in this agreement,
no party to this agreement, including their
respective employees and agents, will be liable
in any circumstances to any other party or anyone
claiming through another party, for any Indirect
Loss, , or loss of or corruption of data, caused
by or resulting from or in relation to any of
their obligations under this agreement whether
arising from breach of contract, negligence or
any tort, in equity or otherwise and whether or
not the other party was advised of the
possibility of such loss or damage.
Obligations of the parties
34.4 Within five Business Days after receiving any
claim or demand or being served with any legal
proceedings which may lead to liability on the
part of a party under any claim for indemnity
under this agreement, the party in receipt of
such claim, demand or service of legal
proceedings must give written notice to the other
party or parties setting out full details of the
claim, demand or legal proceedings.
34.5 A party must not accept, compromise or pay any
claim or demand or agree to arbitrate, compromise
or settle any legal proceedings which may lead to
liability on the part of another party under any
claim for indemnity under this agreement without
the prior written approval of that other party.
34.6 Upon receiving from a party an indemnity against
all damages, losses, liabilities, costs, expenses
and payments which may result, the other party
must take any action and provide any assistance
the first mentioned party requires to avoid,
contest, compromise or defend any claim, demand
or legal proceedings which may lead to liability
on the part of the other party under any claim.
Such assistance includes, but is not limited to,
providing witnesses and documentary or other
evidence and allowing the other party and its
98
legal advisers to inspect and take copies of all
relevant books, records, files and documents.
34.7 No party is liable to another party for any claim
arising from a claim, demand or legal proceedings
in respect of which the other party does not
fully comply with clauses 34.4 to 34.6.
35 Further assurances
Each party agrees, at its own expense, to:
(a) execute and cause its successors to
execute documents and do everything else
necessary or appropriate to bind the party
and its successors under this agreement;
and
(b) use its best endeavours to cause relevant
third parties to do likewise to bind every
person intended to be bound under this
agreement.
36 Treasurer's guarantee and indemnity
36.1 The Treasurer exercising power under section 20
of the Act, unconditionally and irrevocably
guarantees to the Purchaser, the Network Lessee
and the Guarantor, the due and punctual
performance by the Minister and the Commission of
their obligations under this agreement including
the obligation to pay any amount under this
agreement.
36.2 As a separate undertaking the Treasurer
indemnifies the Purchaser, the Network Lessee and
the Guarantor against all loss or liability
arising from and any costs charges and expenses
incurred in connection with a breach by the
Minister or the Commission of this agreement
including the obligation to pay any amount under
this agreement.
36.3 The Treasurer's liability under this guarantee
and indemnity is not affected by anything which
99
might release or exonerate or otherwise affect
him at law or in equity, including one or more of
the following:
(a) the Purchaser, the Network Lessee and the
Guarantor granting time or other
indulgence to, compromising with or
partially releasing in any way the
Commission, the Minister or the Treasurer;
(b) laches, acquiescence, delay, acts or
omissions on the part of the Purchaser,
the Network Lessee or the Guarantor;
(c) any variation or novation of a right of
the Purchaser, the Network Lessee or the
Guarantor;
(d) any alteration of this agreement or any
agreement entered into in the performance
of this agreement, with or without the
consent of the Treasurer; and
(e) the invalidity or unenforceability of an
obligation or liability of a person other
than the Treasurer.
36.4 This guarantee and indemnity is a continuing
guarantee and indemnity and is not discharged by
any one payment. This guarantee and indemnity
does not merge on Completion.
36.5 The Treasurer waives any right he may have of
first requiring the Purchaser, the Network Lessee
or the Guarantor to commence proceedings or
enforce their rights against the Commission, the
Minister or the Treasurer before claiming under
this guarantee and indemnity.
37 Supervening legislation
Any present or future legislation which operates to vary the
obligations of a party in connection with this agreement with the
result that another party's rights, powers or remedies are adversely
affected (including, without limitation, by way of delay or
100
postponement) is excluded except to the extent that its exclusion is
prohibited or rendered ineffective by Law.
38 Confidentiality
38.1 No Confidential Information may be disclosed by a
party to any person except:
(a) employees, legal advisers, auditors and
other consultants of the recipient or its
Related Entities who genuinely require the
information for the purposes of this
agreement; or
(b) with the consent of the party who supplied
the information; or
(c) if the party is required to do so by law
or a stock exchange; or
(d) if the party is required to do so in
connection with legal proceedings relating
to this agreement; or
(e) to any prospective investors, purchasers,
financiers, insurers or persons to whom
disclosure is necessary so a party can
perform its obligations under this
agreement provided that the such other
person agrees to be bound by similar
confidentiality obligations to this
clause.
38.2 A party disclosing information under clause
38.1(a) or (b) must use all reasonable endeavours
to ensure that persons receiving Confidential
Information from it do not disclose the
information except in the circumstances permitted
in clause 38.1.
38.3 This clause 38 will survive termination (for
whatever reason) of this agreement.
38.4 Nothing in this clause 38 prevents the Minister
from tabling a copy of this agreement in
101
Parliament or providing a copy to any Member of
Parliament.
39 Sovereign immunity
39.1 The Minister warrants that the State is not
entitled to claim immunity from legal proceedings
for itself or any of its properties and assets
(other than property and assets not in use or
intended for use for business purposes) on the
grounds of sovereignty or otherwise under a law
or in a jurisdiction where an action may be
brought for the enforcement of any of the
obligations under this agreement.
39.2 The Minister irrevocably waives to the fullest
extent permitted by the laws of any jurisdiction
any right to immunity from set-off, legal
proceedings, attachment prior to judgment, other
attachment or execution of judgment on the
grounds of sovereignty or otherwise, for the
State and its property in respect of its
obligations under this agreement.
40 Severability
If the whole or any part of a provision of this agreement is void,
unenforceable or illegal in a jurisdiction it is severed for that
jurisdiction. The remainder of this agreement has full force and
effect and the validity or enforceability of that provision in any
other jurisdiction is not affected. This clause has no effect if the
severance alters the basic nature of this agreement or is contrary to
public policy.
41 Entire Agreement
This agreement (including the Schedules, Annexures and Maps)
constitutes the entire agreement of the parties about its subject
matter and supersedes all previous agreements, understandings and
negotiations on that subject matter.
102
42 No representations or warranties
Each of the Network Lessee, the Purchaser and the Guarantor
acknowledge that in entering into this agreement it has not relied on
any representations or warranties about its subject matter except as
expressly provided by the written terms of this agreement.
43 Dispute resolution
43.1 If a Dispute arises between any of the parties as
to:
(a) the construction of this agreement; or
(b) the rights or obligations of a party under
this agreement; or
(c) any other matter arising out of or
relating to this agreement,
(other than a Dispute entitling a party to
proceed for urgent interlocutory relief or to
recover moneys owed) the parties undertake in
good faith to use all reasonable endeavours to
settle the Dispute in accordance with the
procedure set out in the following clauses and
illustrated below.
Dispute Timetable
Action Time Clause
1 Party claiming Any time 43.3
dispute must give
notice to the other
2 Party must nominate with notice 43.3
representative under (1)
3 Other party must within 14 days 43.3
also nominate from (2)
representative
4 Representatives must within 14 days 43.4
use reasonable from (3)
endeavours to
resolve Dispute
103
5 If not resolved, must meet for 43.5
referred to senior 2 days within
executives 14 days of (4)
6 If no resolution, within 14 days 43.7
parties must try and of (5)
agree procedure for
dispute resolution
7 If dispute 43.7
resolution process to
agreed then that 43.9
process followed
8 If no agreement, within 14 days 43.10
then a party may of (5) if no
refer the matter to agreement
arbitration reached
43.2 Unless a party has complied with clauses 43.3 to
43.8, that party may not commence court
proceedings or arbitration relating to any
Dispute to which clause 43.1 applies except where
that party seeks urgent interlocutory relief.
Where a party fails to comply with clauses 43.3
to 43.8, the other party in dispute with the
party failing to comply need not comply with this
clause before referring the Dispute to
arbitration or commencing court proceedings.
43.3 Any party claiming that a Dispute has arisen
under this agreement may give written notice to
the other party with reasonable particulars of
the Dispute and designating as its representative
in negotiations relating to the Dispute a person
with authority to settle the Dispute. The party
receiving such notice will, within 14 days of
receipt of the notice from the other party, give
notice in writing to the other party in dispute
designating as its representative in negotiations
relating to the Dispute a person with similar
authority.
43.4 The designated persons appointed under clause
43.3 will, within 14 days of the last designation
required by clause 43.3, and following whatever
investigations each considers appropriate, use
104
their reasonable endeavours to resolve the
Dispute.
43.5 If the designated persons appointed under
clause 43.3 are unable to resolve the Dispute to
the satisfaction of all parties to the dispute
within the 14 days referred to in clause 43.4,
the Dispute will be referred to:
(a) in the case of the Minister, either the
Minister, the Under-Treasurer or the
Director General of the Department of
Transport;
(b) in the case of the Commission, the
Commissioner for Railways or the Acting
Commissioner for Railways; or
(c) in the case of the Network Lessee, the
Purchaser or the Guarantor the Chief
Executive Officer or the Company Secretary
of the Guarantor,
who will meet within the next 14 days and for not
less than two full Business Days to attempt to
resolve the Dispute.
43.6 Any resolution reached pursuant to clauses 43.4
and 43.5, that is satisfactory to all parties to
the Dispute, will be implemented as soon as
possible.
43.7 If no satisfactory resolution of the Dispute is
agreed to in the meetings held under clause 43.5
or within such further period as the parties
agree after the conclusion of the meetings held,
pursuant to clause 43.5, the parties in dispute
will within a further 14 days, seek to agree on a
process for resolving the whole or part of the
Dispute through means other than litigation or
arbitration, such as further negotiations,
mediation, conciliation, independent expert
determination or mini-trial. If the parties do
not so agree then the Dispute may be submitted to
arbitration in accordance with this clause 43.
105
43.8 In agreeing to the procedure to adopt to resolve
the Dispute, the parties must agree:
(a) the procedure and timetable for any
exchange of documents and other
information relating to the Dispute;
(b) the procedural rules and a timetable for
the conduct of the selected mode of
proceeding;
(c) a procedure of selection and compensation
of any neutral person who may be employed
by the parties in dispute; and
(d) whether the parties should seek the
assistance of a dispute resolution
organisation.
43.9 The parties acknowledge that the purpose of any
exchange of information or documents or the
making of any offer of settlement pursuant to
this clause is to attempt to settle the Dispute
between the parties. No party may use any
information or documents obtained through the
dispute resolution process established by this
clause for any purpose other than in an attempt
to settle a Dispute between the parties. The
parties acknowledge that any exchange of
information or documents or the making of any
offer of settlement pursuant to this clause is
strictly on a without prejudice basis as regards
any rights that a party may have.
43.10 After the expiration of the time established by
or agreed under clause 43.8 for agreement on a
dispute resolution process, if the Dispute has
not been resolved, any party which has complied
with the provisions of clauses 43.3 to 43.7 may
in writing terminate the dispute resolution
process provided for in those clauses and may
then refer the Dispute to arbitration or reserve
its rights under this agreement.
43.11 If the Dispute is referred to arbitration, the
Dispute will be administered by the Australian
Commercial Disputes Centre Limited, conducted at
106
Perth and held in accordance with and subject to
the Commercial Arbitration Xxx 0000 (WA).
43.12 For the purposes of the arbitration proceedings
under clause 43.11, the parties agree to appoint
an arbitrator from:
(a) in respect of any Dispute relating to
clause 12, 13, 15 and 18, an engineer with
not less than 15 years relevant rail
experience; or
(b) in respect of any other Dispute, a
solicitor or chartered accountant of not
less than 15 years relevant experience.
If the parties do not agree on the arbitrator to
be appointed, the arbitrator is to be a person
nominated by the Secretary General of the
Australian Commercial Disputes Centre Limited or
its successor or if no such body exists then by
the President of the Law Society of Western
Australia.
43.13 The provisions of clause 43, and in particular
clause 43.2, do not apply to, or in any way limit
the rights of the Minister:
(a) to seek recovery of any amount payable
under clause 6; or
(b) to terminate the agreement in accordance
with clause 23; or
(c) to seek recovery of penalties under
clause 23 and Schedule 7.
44 Governing law, jurisdiction and service of process
44.1 This agreement is governed by the law in force in
Western Australia.
44.2 Each party irrevocably and unconditionally
submits to the non-exclusive jurisdiction of the
courts of Western Australia and courts of appeal
from them. Each party waives any right it has to
107
object to an action being brought in those courts
including, without limitation, by claiming that
the action has been brought in an inconvenient
forum or that those courts do not have
jurisdiction.
44.3 Without preventing any other mode of service, any
document in an action (including, without
limitation, any writ of summons or other
originating process or any third or other party
notice) may be served on any party by being
delivered to or left for that party at its
address for service of notices under clause 27 or
with its process agent referred to in clause
44.4.
44.4 Each of the Network Lessee and the Guarantor
irrevocably:
(a) nominates the Company Secretary for the
time being of the Guarantor as its agent
to receive service of process or other
documents in relation to any dispute in
Australia;
(b) agrees that the service of process or
documents on the agent or any other person
appointed under paragraph (a) will be
sufficient service on it; and
(c) undertakes to ensure that the process
agent remains authorised to accept service
on its behalf. If any process agent
ceases to have an office in the place
specified, it will ensure that at all
times there is another person in that
place acceptable to the Minister to
receive process on its behalf. It will
promptly notify the Minister of the
appointment of that other person.
45 No undisclosed principals or undisclosed trusts
Except as expressly stated in writing in this agreement, no person
enters into this agreement as an agent for any other person or as
108
trustee of any trust or on behalf or for the benefit of any other
person.
46 Guarantee and indemnity
Guarantor's obligations
46.1 In consideration of the Minister entering into
this agreement at the Guarantor's request, the
Guarantor:
(a) unconditionally and irrevocably guarantees
to the Minister the due and punctual
payment by the Network Lessee to the
Minister of all amounts payable by the
Network Lessee under this agreement and
the due compliance by the Network Lessee
with all the Network Lessee's other
obligations under this agreement; and
(b) as separate undertakings:
(i) unconditionally and irrevocably
agrees to indemnify the Minister
against all loss incurred or
suffered by the Minister arising
from or in connection with any
Event of Default or as a
consequence of a disclaimer of the
agreement by a liquidator or
trustee of the Network Lessee; and
(ii) as principal debtor agrees to pay
to the Minister on demand a sum
equal to the amount of any loss
described in clause 46.1(b)(i),
provided that nothing in this clause 46 requires
the Guarantor to do anything contrary to section
12 of the Act.
Duration and application
46.2 This guarantee and indemnity:
109
(a) continues in full force and effect until
the Network Lessee has complied with all
the Network Lessee's obligations under
this agreement and while the Network
Lessee occupies or is entitled to occupy
the Corridor Land under this agreement or
any other right of occupation or as a
trespasser or other unauthorised occupier;
(b) extends to the obligations of any assignee
of this agreement;
(c) extends to all extensions of this
agreement and any new agreement in respect
of the Corridor Land; and
(d) extends to claims by the Minister for loss
or damage arising from the repudiation of
this agreement or breaches of the terms of
this agreement by the Network Lessee,
including the Minister re-entering the
Corridor Land or terminating this
agreement.
46.3 The Guarantor waives:
(a) all the Guarantor's rights as a surety in
respect of this guarantee and indemnity;
and
(b) any right the Guarantor may have of first
requiring the Minister to commence
proceedings or enforce the Minister's
rights against the Network Lessee before
claiming under this guarantee and
indemnity.
No prejudice to rights
46.4 The liability of the Guarantor and the rights of
the Minister under this clause are not prejudiced
or otherwise affected by anything which might
otherwise affect them in law or in equity,
including one or more of the following:
(a) the Minister granting time or other
indulgence to or compromising with or
110
partially releasing in any way the Network
Lessee or the Guarantor;
(b) acquiescence, delay, acts or omissions on
the part of the Minister;
(c) a variation of this agreement with or
without the consent of the Guarantor;
(d) the dissolution or other incapacity of the
Network Lessee or the Guarantor;
(e) the occurrence of an Insolvency Event with
respect to the Network Lessee or the
Guarantor;
(f) the invalidity or unenforceability of an
obligation or liability of the Network
Lessee under this agreement;
(g) the disclaimer of this agreement by a
liquidator, administrator or trustee of
the Network Lessee; or
(h) the Minister releasing, disposing of or
dealing in any other way with any other
security interest the Minister may hold
given by the Network Lessee or any other
guarantor.
Restriction on Guarantors' claims
46.5 The Guarantor may not, without the prior written
consent of the Minister:
(a) raise a set-off or counterclaim available
to the Guarantor against the Network
Lessee in reduction of its liability under
this clause;
(b) prove or claim in any bankruptcy,
liquidation, arrangement or assignment of
or in relation to the Network Lessee until
the Minister has received 100 cents in the
$ in respect of the money owing by the
Network Lessee under this agreement; and
the Guarantor holds in trust for the
111
Minister any proof or claim and any
dividend received by the Guarantor; or
(c) claim to be entitled by way of
contribution, indemnity, subrogation,
marshalling or otherwise to the benefit of
any other security held by the Minister in
connection with this agreement.
Minister's rights
46.6 If a claim that a payment to the Minister in
connection with this agreement is void or
voidable under laws relating to insolvency or
protection of creditors is upheld, conceded or
compromised, the Minister is immediately entitled
as against the Guarantor to the rights to which
the Minister would have been entitled under this
clause 46 if all or part of the payment had not
been made.
Costs and expenses
46.7 The Guarantor agrees to pay to the Minister on
demand the Minister's costs and expenses,
including legal costs and expenses relating to
any action in connection with this guarantee and
indemnity, including its enforcement.
Assignment of benefit of this agreement
46.8 If the benefit of this agreement is transferred
or assigned by the Minister to any person, the
benefit of this guarantee and indemnity extends
to and is to be taken to be assigned to the
transferee or assignee.
47 Consents
Consents and approvals not to be unreasonably withheld
47.1 Subject to clause 47.2 in this agreement any
reference to a requirement to obtain the consent
or approval of the Minister or the Commission
shall be interpreted as including a proviso that
such consent or approval (as the case may be)
112
shall not be unreasonably withheld or delayed or
conditioned by the Minister or the Commission as
the case may be, provided that in the case of a
consent under clause 28.2 the Minister may take
into account (in deciding whether or not to give
consent to an assignment of the Network Lessee's
rights under this agreement) whether or not in
the Minister's reasonable opinion such assignment
would be consistent with the State's objective
referred to in Recital E.
47.2 Clause 47.1 shall not apply in relation to the
consents or approvals of the Minister or the
Commission as the case may be referred to in
clauses 8.6 Non-Permitted Uses, 8.13 Freight
Terminals on Corridor Land or 46 Guarantee in
which cases the giving or otherwise of the
relevant consent or approval shall be in the
absolute discretion of the Minister or the
Commission as the case may be.
EXECUTED as an agreement
113
Execution page
THE COMMON SEAL of the RAIL )
CORRIDOR MINISTER was hereunto )
affixed in the presence of: )
)
_______________________________
Signature of witness
_______________________________
Full name of witness
_______________________________
Address of witness
_______________________________
Occupation of witness
THE COMMON SEAL of THE WESTERN )
AUSTRALIAN GOVERNMENT RAILWAYS )
COMMISSION )
was hereunto affixed in the )
presence of: )
)
______________________________
Commissioner
______________________________
Secretary
SIGNED by the said )
THE HONOURABLE XXXXXXX FAIRFAX )
COURT MLA Treasurer of the State of )
Western Australia, in the presence )
of: )
_______________________________
Signature of witness
_______________________________
Full name of witness
_______________________________
Address of witness
_______________________________
Occupation of witness
Signed for and on behalf of )
AUSTRALIA WESTERN RAILROAD PTY LTD )
ACN 094 792 275 by its duly )
authorised Attorney pursuant to )
Power of Attorney dated )
)
2000 )
and who warrants that he has not )
received any notice of revocation )
of the grant in the presence of:
_______________________________
Signature of Attorney
_______________________________
Signature of Witness _______________________________
Name of Attorney
_______________________________
Name of Witness
_______________________________
Occupation
_______________________________
_______________________________
Address
Signed for and on behalf of )
WESTNET NARROWGAUGE PTY LTD )
ACN 094 736 900 by its duly )
authorised Attorney pursuant to )
Power of Attorney dated )
)
2000 )
)
and who warrants that he has )
not received any notice of
revocation of the grant in the
presence of:
_________________________________
Signature of Attorney
______________________________
Signature of Witness _________________________________
Name of Attorney
______________________________
Name of Witness
Occupation
_____________________________
_____________________________
Address
Signed for and on behalf of )
AUSTRALIAN RAILROAD GROUP PTY )
LTD ACN 080 579 308 by its duly )
authorised Attorney pursuant to )
Power of Attorney dated )
)
2000 )
and who warrants that he has )
not received any notice of )
revocation of the grant in the
presence of:
________________________________
Signature of Attorney
_______________________________
Signature of Witness ________________________________
Name of Attorney
_______________________________
Name of Witness
_______________________________
Occupation
_______________________________
_______________________________
Address
