Exhibit 99.4
________________________
Dated 16 December 2000
Rail Freight Corridor
Land Use Agreement
(StandardGauge) and
Railway Infrastructure
Lease
The ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MLC
exercising powers under section 42
of the Rail Freight System ▇▇▇ ▇▇▇▇
("Minister")
The Western Australian
Government Railways Commission
exercising powers under sections
8(7) and 44 of the Rail Freight
System ▇▇▇ ▇▇▇▇ and section 62 of
the Government Railways ▇▇▇ ▇▇▇▇
("Commission")
The ▇▇▇ ▇▇▇▇▇▇▇ Fairfax Court,
MLA, Treasurer, exercising power
under section 20 of the Rail Freight
System ▇▇▇ ▇▇▇▇ (WA)
("Treasurer")
WestNet NarrowGauge Pty Ltd
("Network Lessee")
Australia Western Railroad Pty Ltd
("Purchaser")
Australian Railroad Group Pty Ltd
("Guarantor")
Mallesons ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Solicitors
▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇'▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
Telephone (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
Fax (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
DX 91049 Perth
Ref: ML 09 5002 5009
Contents Rail Freight Network Use Agreement (StandardGauge) and Railway
Infrastructure Lease
1 Purpose and interpretation . . . . . . . . . . . . . . . . . . . . 3
Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defined terms . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
General rules for interpretation . . . . . . . . . . . . . . . . . 28
Unreasonable interference . . . . . . . . . . . . . . . . . . . . . 30
No Better or Worse Off . . . . . . . . . . . . . . . . . . . . . . 31
Uneconomic . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
GST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Shared Obligations . . . . . . . . . . . . . . . . . . . . . . . . 32
2 Use of Corridor Land and Lease of Leased Railway Infrastructure . . 32
Use of Corridor Land . . . . . . . . . . . . . . . . . . . . . . . 32
Lease of Railway Infrastructure . . . . . . . . . . . . . . . . . . 33
Reservation to the Minister and the Commission . . . . . . . . . . 33
3 Description of Corridor Land . . . . . . . . . . . . . . . . . . . 33
Corridor Land . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Operation of Maps . . . . . . . . . . . . . . . . . . . . . . . . . 34
Adjustment of boundaries . . . . . . . . . . . . . . . . . . . . . 35
Guiding Principles . . . . . . . . . . . . . . . . . . . . . . . . 36
4 Nature of Network Lessee's interest . . . . . . . . . . . . . . . . 38
Rights and responsibilities of the Network Lessee . . . . . . . . . 38
Agreement not to be registered . . . . . . . . . . . . . . . . . . 39
No proprietary interest . . . . . . . . . . . . . . . . . . . . . . 39
Native Title . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Rights to Railway Infrastructure . . . . . . . . . . . . . . . . . 40
Existing Third Party Interests . . . . . . . . . . . . . . . . . . 41
Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Rights to notice in respect of land . . . . . . . . . . . . . . . . 42
Undertakings by Minister . . . . . . . . . . . . . . . . . . . . . 42
Material Leases . . . . . . . . . . . . . . . . . . . . . . . . . . 42
5 Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
6 Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Obligation to pay rent . . . . . . . . . . . . . . . . . . . . . . 43
-i-
Interest on late payments . . . . . . . . . . . . . . . . . . . . . 43
7 CPI Adjustment . . . . . . . . . . . . . . . . . . . . . . . . . . 44
CPI Adjustment . . . . . . . . . . . . . . . . . . . . . . . . . . 44
8 Use of Corridor Land and Leased Railway Infrastructure . . . . . . 45
Permitted Use . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Non-Permitted Uses . . . . . . . . . . . . . . . . . . . . . . . . 47
Rights and interests in Corridor Land . . . . . . . . . . . . . . . 48
Freight Terminals on Corridor Land . . . . . . . . . . . . . . . . 49
Avon Valley Access Road . . . . . . . . . . . . . . . . . . . . . . 49
9 Rights of the Minister and State in respect of Corridor Land . . . 49
Structures may be built . . . . . . . . . . . . . . . . . . . . . . 49
Improvements . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Non-Corridor Works . . . . . . . . . . . . . . . . . . . . . . . . 51
Right to connect . . . . . . . . . . . . . . . . . . . . . . . . . 51
10 Compensation for works . . . . . . . . . . . . . . . . . . . . . . 52
Interference . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Minimise disruption . . . . . . . . . . . . . . . . . . . . . . . . 54
Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Ownership of works . . . . . . . . . . . . . . . . . . . . . . . . 54
11 Specific new projects . . . . . . . . . . . . . . . . . . . . . . . 55
Urban Passenger Network . . . . . . . . . . . . . . . . . . . . . . 55
Geraldton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
12 Relocation of Lines . . . . . . . . . . . . . . . . . . . . . . . . 56
Relocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Surrender of old Line . . . . . . . . . . . . . . . . . . . . . . . 56
Interference . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Offer of compensation . . . . . . . . . . . . . . . . . . . . . . . 58
Minimum interference . . . . . . . . . . . . . . . . . . . . . . . 58
Access for Minister . . . . . . . . . . . . . . . . . . . . . . . . 58
Ownership of works . . . . . . . . . . . . . . . . . . . . . . . . 59
Dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
New maps . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
13 Network Lessee's works . . . . . . . . . . . . . . . . . . . . . . 60
-ii-
Railway Infrastructure . . . . . . . . . . . . . . . . . . . . . . 60
New Works . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Records of New Works . . . . . . . . . . . . . . . . . . . . . . . 61
14 Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Network Lessee's obligations as to access . . . . . . . . . . . . . 62
Minister's right of access . . . . . . . . . . . . . . . . . . . . 62
Private Level Crossings and tunnels . . . . . . . . . . . . . . . . 62
15 Maintenance obligations . . . . . . . . . . . . . . . . . . . . . . 63
Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Fit for Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Initial Performance Standards . . . . . . . . . . . . . . . . . . . 64
Works to land . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Return Condition . . . . . . . . . . . . . . . . . . . . . . . . . 65
Maintenance Plan . . . . . . . . . . . . . . . . . . . . . . . . . 65
Escrow Account . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Grain Network . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Level Crossings, bridges, tunnels and pedestrian crossings . . . . 68
Review of Performance Standards . . . . . . . . . . . . . . . . . . 69
Rail Safety Act accreditation . . . . . . . . . . . . . . . . . . . 71
16 Surrender of Lines . . . . . . . . . . . . . . . . . . . . . . . . 71
Surrender right . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Compensation on termination . . . . . . . . . . . . . . . . . . . . 73
17 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
GST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
18 Force Majeure, damage and destruction . . . . . . . . . . . . . . . 77
Force Majeure notice . . . . . . . . . . . . . . . . . . . . . . . 77
Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Suspension of obligations . . . . . . . . . . . . . . . . . . . . . 78
Force Majeure ceases . . . . . . . . . . . . . . . . . . . . . . . 79
Alternative arrangements . . . . . . . . . . . . . . . . . . . . . 79
Repair and replacement of Railway Infrastructure . . . . . . . . . 79
19 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Network Lessee to maintain insurance . . . . . . . . . . . . . . . 80
-iii-
Insureds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Supply details of insurance . . . . . . . . . . . . . . . . . . . . 81
Not to invalidate insurance . . . . . . . . . . . . . . . . . . . . 81
Minister's rights . . . . . . . . . . . . . . . . . . . . . . . . . 82
20 Network Lessee's liability and indemnity . . . . . . . . . . . . . 82
Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
21 Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Warranties by the State . . . . . . . . . . . . . . . . . . . . . . 83
Network Lessee's warranties . . . . . . . . . . . . . . . . . . . . 85
22 Disclaimers and acknowledgments . . . . . . . . . . . . . . . . . . 87
23 Default and termination . . . . . . . . . . . . . . . . . . . . . . 88
Essential terms . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . 88
Minister's right to terminate . . . . . . . . . . . . . . . . . . . 89
Minister's rights on termination or expiration of the Term . . . . 90
Step in rights . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Assignment and novation of contracts on Termination . . . . . . . . 91
Infrastructure of the Purchaser . . . . . . . . . . . . . . . . . . 92
Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
24 [This clause has been deliberately left blank] . . . . . . . . . . 93
25 Sharing of information, reporting and co-operation . . . . . . . . 93
26 Stamp duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
27 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
28 Assignment and charging . . . . . . . . . . . . . . . . . . . . . . 97
No interest to be created without consent . . . . . . . . . . . . . 97
Requirements for assignment . . . . . . . . . . . . . . . . . . . . 97
Network Lessee liability . . . . . . . . . . . . . . . . . . . . . 99
Exclusion of statutory provisions . . . . . . . . . . . . . . . . . 99
Costs and expenses . . . . . . . . . . . . . . . . . . . . . . . . 100
Charging . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
29 Exercise of rights . . . . . . . . . . . . . . . . . . . . . . . . 101
-iv-
30 Waiver and variation . . . . . . . . . . . . . . . . . . . . . . . 102
31 Approvals and consents . . . . . . . . . . . . . . . . . . . . . . 102
32 Remedies cumulative . . . . . . . . . . . . . . . . . . . . . . . . 102
33 No merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
34 Indemnities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Obligations of the parties . . . . . . . . . . . . . . . . . . . . 103
35 Further assurances . . . . . . . . . . . . . . . . . . . . . . . . 104
36 Treasurer's guarantee and indemnity . . . . . . . . . . . . . . . . 104
37 Supervening legislation . . . . . . . . . . . . . . . . . . . . . 105
38 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . 106
39 Sovereign immunity . . . . . . . . . . . . . . . . . . . . . . . . 107
40 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
41 Entire agreement . . . . . . . . . . . . . . . . . . . . . . . . . 107
42 No representations or warranties . . . . . . . . . . . . . . . . . 108
43 Dispute resolution . . . . . . . . . . . . . . . . . . . . . . . . 108
44 Governing law, jurisdiction and service of process . . . . . . . . 113
45 No undisclosed principals or undisclosed trusts . . . . . . . . . . 114
46 Guarantee and indemnity . . . . . . . . . . . . . . . . . . . . . . 114
Guarantor's obligations . . . . . . . . . . . . . . . . . . . . . . 114
Duration and application . . . . . . . . . . . . . . . . . . . . . 115
No prejudice to rights . . . . . . . . . . . . . . . . . . . . . . 116
Restriction on Guarantors' claims . . . . . . . . . . . . . . . . . 117
Minister's rights . . . . . . . . . . . . . . . . . . . . . . . . . 117
Costs and expenses . . . . . . . . . . . . . . . . . . . . . . . . 117
Assignment of benefit of this agreement . . . . . . . . . . . . . . 118
47 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
Consents and approvals not to be unreasonably withheld . . . . . . 118
-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 (StandardGauge)
and Railway Infrastructure Lease
Date: 16 December 2000
Parties: THE ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MLC EXERCISING POWERS UNDER
SECTION 43 OF THE RAIL FREIGHT SYSTEM ▇▇▇ ▇▇▇▇ (WA)
("Minister")
THE WESTERN AUSTRALIAN GOVERNMENT RAILWAYS COMMISSION
EXERCISING POWERS UNDER SECTIONS 8(7) AND 44 OF THE RAIL
FREIGHT SYSTEM ▇▇▇ ▇▇▇▇ AND SECTION ▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ("Commission")
THE ▇▇▇. ▇▇▇▇▇▇▇ 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 STANDARDGAUGE PTY LTD ACN ▇▇▇ ▇▇▇ ▇▇▇ having its
registered office at 11th Floor, Wesfarmers House, ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ("Network Lessee")
AUSTRALIA WESTERN RAILROAD PTY LTD ACN 094 792 275 having
its registered office at 11th Floor, Wesfarmers House, ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ("Purchaser")
AUSTRALIAN RAILROAD GROUP PTY LTD ACN 080 579 308 having
its registered office at 11th Floor, Wesfarmers House, ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ("Guarantor")
Recitals:
A. The Commission, under the Government Railways ▇▇▇
▇▇▇▇, 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.
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.
1
C. The Railways (Access) ▇▇▇ ▇▇▇▇ 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 ▇▇▇ ▇▇▇▇, the Act Minister designated the
land the subject of this agreement and the Lease
Agreement (NarrowGauge) 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.
2
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 ▇▇▇ ▇▇▇▇.
Act Minister has the same meaning as in section 31
of the Act.
Access Act means the Railways (Access) ▇▇▇ ▇▇▇▇.
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
(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.
3
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.
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).
4
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;
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;
5
(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 otherwise environmentally degraded.
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 StandardGauge and
Corridor Land NarrowGauge and in the context of:
(a) this agreement, means: Corridor Land
StandardGauge unless the context indicates
that it means Corridor Land StandardGauge and
Corridor Land NarrowGauge;
(b) the Lease Agreement (NarrowGauge) means:
Corridor Land NarrowGauge unless the context
indicates that it means Corridor Land
NarrowGauge and Corridor Land StandardGauge;
and
(c) this agreement and the Lease Agreement
(NarrowGauge) means: both Corridor Land
StandardGauge and Corridor Land NarrowGauge,
6
with the intent and to the effect that the Corridor
Land StandardGauge and the Corridor Land
NarrowGauge 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 has the meaning in the
Lease Agreement (NarrowGauge).
Corridor Land StandardGauge means that part of the
Corridor Land as relates to the Network
StandardGauge, being all of the Corridor Land other
than the Corridor Land NarrowGauge.
Country Passenger Access Agreement means the
agreement of that name which takes effect between
the Commission and the Network Lessee in respect 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 8, paragraph 1(b)
7
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 ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇.
Disclosed means the provision of information in the
Data Room established by the Rail Freight Sale
Taskforce at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ Square, ▇▇ ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, 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.
8
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:
(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:
9
(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,
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:
10
(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 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.
11
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.
Government Railway means a railway as defined in
section 2 of the Government Railways ▇▇▇ ▇▇▇▇.
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.
12
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,
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;
13
(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 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 ▇▇▇-▇▇-▇▇ Rev C.
Kwinana to Kalgoorlie Line means the Line shown on
Map described as railway identification plan 01,
02, 01-1 to 01-13.
14
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, 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 (NarrowGauge) means the agreement,
dated the same date as this agreement, between the
Minister, the Commission, the Treasurer, WestNet
NarrowGauge, 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 StandardGauge or Corridor
Land NarrowGauge between any End Points shown on a
Map.
Local Government means a local government
established under the Local Government ▇▇▇ ▇▇▇▇.
Maintenance Obligation means an obligation of the
Network Lessee under clause 15.
Maintenance Plan means a plan presented under
clause 15.7.
15
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.
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;
16
(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 (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.
17
Material Leases means each of the leases referred
to in Schedule 5.
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 ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (Cth).
Native Title Claim Group has the meaning given in
the Native ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (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
StandardGauge unless the context indicates
that it means both the Network StandardGauge
and the Network NarrowGauge;
(b) the Lease Agreement (NarrowGauge) means: the
Network NarrowGauge unless the context
indicates that it means both the Network
NarrowGauge and the Network StandardGauge;
and
(c) this agreement and the Lease Agreement
(NarrowGauge) means both parts of the
Network,
18
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 StandardGauge;
(b) the Lease Agreement (NarrowGauge): WestNet
NarrowGauge; and
(c) this agreement and the Lease Agreement
(NarrowGauge): both WestNet StandardGauge
and WestNet NarrowGauge.
Network NarrowGauge has the meaning in the Lease
Agreement (NarrowGauge).
Network StandardGauge means that part of the
Network as comprises or incidentally relates to the
standard gauge and dual gauge tracks, being all of
the Network other than the Network NarrowGauge.
New Works means work constructed on Corridor Land
StandardGauge 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.
19
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 contract, the date when
the works are complete, other than for minor
repairs and finishings.
20
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 ▇▇▇ ▇▇▇▇
(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 ▇▇▇ ▇▇▇▇
(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 supports for
equipment or items associated with the use of
a railway);
(b) tunnels, bridges, viaducts, culverts, pipes,
conduits and drains;
21
(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 ▇▇▇▇ 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
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
22
(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.
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.
23
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 NarrowGauge,
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.
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,
24
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
the Lease Agreement (NarrowGauge).
WestNet StandardGauge means WestNet Standard Gauge
Pty Ltd ACN ▇▇▇ ▇▇▇ ▇▇▇, being the Network Lessee
under this agreement.
General rules for interpretation
1.3 In this agreement unless the contrary intention
appears:
(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,
25
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 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
26
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 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
27
(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 StandardGauge and WestNet NarrowGauge 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
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
28
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) ▇▇▇ ▇▇▇▇, 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
NarrowGauge; or
(b) is replicated in the Lease Agreement
(NarrowGauge) and is thereby imposed upon
WestNet NarrowGauge:
then discharge or performance of that obligation or
commitment -
(i) in relation to the Network NarrowGauge, by
WestNet NarrowGauge; or
(ii) under this agreement, by WestNet
StandardGauge
29
will be taken to be discharge and performance of
that obligation or commitment under the Lease
Agreement (NarrowGauge) 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.
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.
30
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;
(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
31
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 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
32
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
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;
33
(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:
(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
34
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
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.
35
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.
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
36
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
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.
37
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:
(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
38
(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.
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.
39
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 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
40
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)
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 8 are to apply.
8 Use of Corridor Land and Leased Railway Infrastructure
Permitted Use
41
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 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
42
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 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.
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.
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.
44
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.
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.
45
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.
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.
46
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 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.
47
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 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:
48
(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:
(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
49
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 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
50
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
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.
51
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;
(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
52
(iv) the new Line will become Leased
Railway Infrastructure for the balance
of the Term in accordance with the
terms of this agreement.
Interference
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.
53
Minimum interference
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
54
(b) ensure that such 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.
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:
55
(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.
Records of New Works
13.5 The Network Lessee will maintain a record of all
works carried on under this clause and under clause
56
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.
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
57
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
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.
58
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 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
59
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
(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.
60
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 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
61
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 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
62
obligations (under the Public Works ▇▇▇ ▇▇▇▇,
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 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
63
(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
(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
64
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 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
65
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:
(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
66
(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 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.
67
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 ▇▇▇▇▇▇▇ 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;
(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
68
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.
(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
69
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 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 ) ▇▇▇ ▇▇▇▇
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
70
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;
(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
71
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
(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
72
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
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
73
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 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;
74
(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.
75
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
▇▇▇ ▇▇▇▇ (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.
21 Warranties
Warranties by the State
76
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;
(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
77
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 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
78
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
(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
79
(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
(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
80
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
(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
81
(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
(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
82
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:
(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
83
(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.
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
84
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
(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:
85
(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:
(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
86
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 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
87
Attention: The Minister
Address: ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇
Facsimile: (▇▇) ▇▇▇▇ ▇▇▇▇
Commission
Attention: The Commissioner
Address: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇
Facsimile: (▇▇) ▇▇▇▇ ▇▇▇▇
Treasurer
Attention: Under Treasurer
Address: ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
Facsimile: (▇▇) ▇▇▇▇ ▇▇▇▇
Network
Lessee
Attention: Company Secretary
Address: ▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
Facsimile: (▇▇) ▇▇▇▇ ▇▇▇▇
Purchaser
Attention: Company Secretary
Address: ▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
Facsimile: (▇▇) ▇▇▇▇ ▇▇▇▇
Guarantor
Attention: Company ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
Facsimile: (▇▇) ▇▇▇▇ ▇▇▇▇
28 Assignment and charging
88
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.
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;
89
(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 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
90
(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 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 ▇▇▇ ▇▇▇▇ 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
91
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 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
92
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
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.
93
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.
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
94
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 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
95
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 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
96
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
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.
97
38.4 Nothing in this clause 38 prevents the Minister
from tabling a copy of this agreement in 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.
98
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
99
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
100
investigations each considers appropriate, use
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.
43.8 In agreeing to the procedure to adopt to resolve
the Dispute, the parties must agree:
101
(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
Perth and held in accordance with and subject to
the Commercial Arbitration ▇▇▇ ▇▇▇▇ (WA).
102
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 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.
103
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
trustee of any trust or on behalf or for the benefit of any other
person.
46 Guarantee and indemnity
Guarantor's obligations
104
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:
(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;
105
(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
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;
106
(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 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
107
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) 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
108
discretion of the Minister or the Commission as the
case may be.
EXECUTED as an agreement
109
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 ▇▇▇▇▇▇▇ 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 Witness Signature of Attorney
_______________________________ _______________________________
Name of Witness Name of Attorney
_______________________________
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 Witness Signature of Attorney
______________________________ _________________________________
Name of Witness Name of Attorney
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