New South Wales Consolidated Acts

SYDNEY HARBOUR TUNNEL (PRIVATE JOINT VENTURE) ACT 1987 - SCHEDULE 5

SCHEDULE 5 – The Ensured Revenue Stream Agreement

(Section 5)

THIS AGREEMENT is made the 29th day of June, 1987,

WHEREAS:

A. Pursuant to obligations contained in the Lease the Company has agreed to design, construct and operate the Tunnel.

B. In consideration of the Company agreeing to design, construct and operate the Tunnel, the Crown has agreed to make the payments set out in this Agreement to the Company to enable the Company to meet financial obligations in connection with the operation of the Tunnel and the payment of principal and interest upon moneys borrowed by it for the design, construction and operation of the Tunnel.

NOW THIS AGREEMENT WITNESSES as follows:

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions When used in this Agreement the following terms shall have the following meanings unless the context otherwise requires:
"
"Bridge Toll Collection Costs" " means the sum of $600,000 multiplied by a fraction the numerator of which is the CPI for the calendar quarter immediately preceding the calculation and the denominator of which is the CPI for the quarter ending 30th June 1986.
"
"Business Day" " means any day on which trading banks are open for business in Sydney.
"
"Commissioner" " means the Commissioner for Main Roads.
"
"CPI" " means:

(i) the "Weighted Average of Eight Capital Cities: All Groups Consumer Price Index" published quarterly by the Australian Bureau of Statistics as long as there is no change in the coverage, periodicity or reference base from that applying at the date of this Agreement;

(ii) if such Index is published and there is a change in coverage and the Index is linked to previous CPI's, such Index shall be the CPI;

(iii) if such Index is revised to a new base and a conversion factor to apply to the old Index to make it comparable with the new Index is provided, then the conversion factor shall be applied to all previous CPI's as published or otherwise revised in terms of this Agreement to calculate revised CPI's in terms of the new reference base;

(iv) if such Index is revised to a new base and a conversion factor to apply to the old Index to make it comparable with the new Index is not provided then the President of the Institute of Actuaries of Australia (or, if such Institute has ceased to exist, such other institute or body as then carries on the functions of such Institute), or his nominee, acting as an arbitrator (the "
"Arbitrator" ") shall be called upon to calculate revised CPI's for all CPI's as published or otherwise revised in terms of this Agreement and the Arbitrator's determination shall be conclusive;

(v) if such Index is published but:

(A) there is a change in coverage and the Index is not linked to previous CPI's; or

(B) there is a change in periodicity,

then the Arbitrator shall be called upon to decide whether such Index is appropriate as a general indicator of the rate of price change for consumer goods and services in the capital cities of Australia or, if it is not, what other index shall be used as a substitute index for the purpose of calculating the payments due under this Agreement and the Arbitrator's determination shall be conclusive;

(vi) if there is a cessation in the publication of such Index and the Australian Bureau of Statistics publishes another Index which it states to be in replacement of such Index and the replacement Index is linked to old CPI's then all CPI's relevant to this Agreement shall be recalculated to the same reference base as the replacement Index;

(vii) if there is a cessation in the publication of such Index and the Australian Bureau of Statistics publishes another Index which it states to be in replacement of such Index but the replacement Index is not linked to old CPI's then the Arbitrator shall be called upon to calculate revised CPI's for all previous CPI's as published or otherwise revised in terms of this Agreement and the Arbitrator's calculation shall be conclusive;

(viii) if there is a cessation in the publication of such Index and the Australian Bureau of Statistics does not publish another Index in replacement of such Index then the Arbitrator shall be called upon to provide an index which he determines to be appropriate as a general indicator of the rate of price change for consumer goods and services in the capital cities of Australia and the Arbitrator's determination shall be conclusive.

"
"Environmental Impact Determination" " means the determinations of the Commissioner dated 29th May 1987 and made under the Sydney Harbour Tunnel (Private Joint Venture) Act 1987 and Part V of the Environmental Planning and Assessment Act 1979 in respect of the works referred to in Schedules 1 and 2 to the Sydney Harbour Tunnel (Private Joint Venture) Act 1987 .
"
"ERS Toll" " means:

(i) from 1st September, 1992 until 30th June, 1993 inclusive--$1.00;

(ii) from 1st July, 1993 until 30th June, 2015 inclusive--$1.03; and

(iii) from 1st July, 2015 until 31st August, 2022--88 cents.

"
"Immersed Tube Section of the Tunnel" " means the eight pre-cast concrete segments of the Tunnel to be constructed in the dry dock situated on the land described in Schedule 4 to the Sydney Harbour Tunnel (Private Joint Venture) Act 1987 and to be placed on the bed of Port Jackson.
"
"Joint Venturers" " means each of Transfield (SHTJV) Pty. Limited and Kumagai Gumi Co., Ltd. and "
"Joint Venturer" " means either one of them.
"
"Lease" " means the Lease dated the date of this Agreement between the Commissioner and the Company.
"
"Mortgagee" " means any holder of a first ranking Security Interest over this Agreement who gives notice to the Crown pursuant to Clause 6.
"
"Notional Crew" " means a notional representative labour force comprising one of each of the following classifications subject to the following awards respectively (except that if any one or more of the nominated awards do not apply to the particular classification then such award as is applicable to that classification shall apply):

Classification	Award
Electrician (Licensed)	Electricians and C State Award
Mechanic (Tradesman)	Metal Industry Award
Painter	National Building Trades Construction Award
Clerk Grade 1	Clerks (State) Award.

"
"Projected Traffic Volume" " means during each of the periods set out in Schedule 1, one quarter of the figure set out in the right hand column.
"
"Relevant Company" " means any party to a Relevant Document other than the Crown, the Commissioner, Perpetual Trustee Company Limited, Westpac Banking Corporation and the party providing the Performance Bond.
"
"Relevant Document" " means each of:

(a) this Agreement;

(b) the Net Bridge Revenue Loan Agreement dated the date of this Agreement between the Commissioner and the Company;

(c) the Trust Deed dated the same date as this Agreement under which the Company has granted a charge in favour of Perpetual Trustee Company Limited;

(d) the Deed of Covenant between ACTL Holdings Pty. Limited, Kumagai Gumi Co., Ltd., Perpetual Trustee Company Limited and the Commissioner;

(e) the Lease;

(f) the Shareholder Loan and Equity Agreement between the Shareholder, the Company, Kumagai Gumi Co., Ltd. and ACTL Holdings Pty. Limited providing, amongst other things, for a loan of $40,000,000 to the Company from the Shareholder;

(g) the Underwriting Agreement between the Company and Westpac Banking Corporation;

(h) the Design and Construction Agreement between the Company and the Joint Venturers;

(i) the Operation, Repair and Maintenance Agreement between the Company and the Commissioner;

(j) the DMR Sub-contract between the Company and the Commissioner;

(k) the Deed of Charge in favour of the Commissioner given by the Company;

(l) the Performance Bond provided on behalf of the Joint Venturers in favour of the Company, in the amount of $40,000,000;

(m) the Guarantee and Indemnity between Kumagai Gumi Co., Ltd., Transfield Pty. Limited and other companies in the Transfield group of companies, the Company and the Commissioner;

(n) the Subcontract Charge between Transfield Kumagai Contracting Pty. Limited and the Commissioner; and

(o) any other document or agreement which the parties to this Agreement agree is to be a Relevant Document for the purposes of this Agreement,

and any document or agreement entered into under, or for the purpose of amending or novating, any of them.
"
"Security Interest" " includes any mortgage, pledge or charge or any security or preferential interest or arrangement of any kind given by the Company.
"
"Shareholder" " means Tunnel Holdings Pty. Limited.
"
"Special Account" " means the account of the Company No. 032-099-88-9458 with Westpac Banking Corporation, 169 Miller Street, North Sydney or such other account as the Company and the Mortgagee notify the Crown in writing from time to time.
"
"Tax Act" " means the Income Tax Assessment Act 1936 .
"
"Tunnel" " means the whole of the permanent works to be designed and constructed on and in the Tunnel Site (as defined in the Lease), the scope of which works is set out in the Scope of Works and Design Criteria contained in Schedule 1 to the Lease.
"
"Tunnel Toll Receipts" " means the gross toll receipts of the Company paid into the Special Account from the operation of the Tunnel during the calendar quarter immediately preceding the date on which any calculation is made as certified by the Company's auditors.
"
"Weighted Index" " means:

(i) for the period beginning on 1st September, 1992 and expiring on 30th June, 1993--two; and

(ii) after that date the amount calculated in accordance with the following formula:

"e"

"f"

"g"

"d"

"A"

"B"

"C"

"CPIH" is the highest CPI for any quarter between the quarter ended 30 June 1986 and the last full calendar quarter prior to the date on which the calculation of Weighted Index is being made (referred to in this definition of "
"Weighted Index" " as the "
"last calendar quarter" ").

"CPI2" is the CPI for the last calendar quarter.

"CPI3" is the CPI for the calendar quarter immediately preceding the last calendar quarter.

"CPI1" is the CPI for the quarter ended 30 June 1986.

"WI2" is the cost of employment of the Notional Crew for the last calendar quarter.

"WI3" is the cost of employment of the Notional Crew for the calendar quarter immediately preceding the last calendar quarter.

"WI1" is the cost of employment of the Notional Crew for the calendar quarter ended 30 June 1986.

"EI2" is the bulk supply tariff as published in the latest Annual Report of the Electricity Commission of the New South Wales for the last calendar quarter or if such tariff is not published, is the value of the product of EI 1 and CPI 2 divided by CPI 1.

"EI3" is the bulk supply tariff as published in the latest Annual Report of the Electricity Commission of New South Wales for the calendar quarter immediately preceding the last calendar quarter or if such tariff is not published, is the value of the product of EI 1 and CPI 3 divided by CPI 1.

"EI1" is the bulk supply tariff as published in the Annual Report of the Electricity Commission of New South Wales for the year ended 30 June 1986 namely 5.2224 cents per kilowatt hour.

"AA" is the percentage of actual operating expenditure of the Company incurred during the last calendar quarter, as certified by its auditors, remaining after deducting the sum of percentages calculated for BB and CC below.

"BB" is the percentage of the actual operating expenditure of the Company incurred during the last calendar quarter, as certified by its auditors, attributable to the cost of employment of the Company's personnel.

"CC" is the percentage of the actual operating expenditure of the Company incurred during the last calendar quarter, as certified by its auditors, attributable to the provision of electricity.

"T" is $2,600,000 divided by the product of the Projected Traffic Volume for the last calendar quarter and the ERS Toll for the last calendar quarter.

1.2 Interpretation In this Agreement headings are for convenience only and shall not affect its interpretation and except to the extent the context otherwise requires:

(a) words denoting the singular number shall include the plural and vice versa;

(b) references to Clauses, Annexures and Schedules are references to them in and to this Agreement.

1.3 Calculation All calculations under this Agreement shall be rounded upwards to the nearest $100 and all intermediate calculations shall be made to 4 decimal places unless otherwise stated.

1.4 Business Days If any payment is required to be made on a day which is not a Business Day, it shall be made on the preceding Business Day.

2. ENSURED REVENUE STREAM

2.1 Ensured Revenue Stream The Crown grants the Company, unless and to the extent that the Mortgagee otherwise agrees in writing, the right to receive an amount calculated in accordance with the following formula and undertakes to make payment to the Company of such amount in the manner referred to in Clause 2.2:

Each such payment (referred to in this Agreement as an "Ensured Revenue Stream Payment") shall be made to the Special Account.

2.2 Calculation of Amount Payable and Payment

(a) (First Payment of ERS)
Not later than 1st October 1992 the Company shall provide the Crown with a statement showing the calculation of the amount of the first Ensured Revenue Stream Payment which shall be paid on 10th October 1992. The amount shall be based upon the CPI for the calendar quarter ending on 30th June 1992 and shall be one third of the amount calculated by applying the formula contained in Clause 2.1.

(b) (Adjustment of First Payment)

(i) By 1st November 1992 or as soon thereafter as possible after the CPI for the calendar quarter ended 30th September 1992 becomes available the Company shall provide the Crown with a further statement showing the calculation of the amount of the first Ensured Revenue Stream Payment based on the actual CPI for the calendar quarter ending on 30th September 1992 and, where any other variable in the formula in Clause 2.1 (including any variable in the definition of Weighted Index) was, for the purpose of calculating the payment under paragraph (a), calculated by reference to the calendar quarter ended 30th June 1992 (referred to in this Clause 2.2 as a "Past Period Variable"), based on the actual figure for that variable for the quarter ended 30th September 1992.

(ii) The adjustment to the 10th October 1992 payment referred to in Clause 2.2 (a) required by such further statement shall be made on 10th November 1992 by the Crown making a payment to the Company of the relevant amount or deducting the relevant amount from any Ensured Revenue Stream Payment to be made on that date. If however the CPI for the calendar quarter ended 30th September 1992 or the actual figure for any other Past Period Variable for that quarter is not available by 5th November 1992, then in calculating the adjustment, if any, to be made, the CPI or relevant Past Period Variable shall be that used for the purpose of calculating the payment under paragraph (a).

(c) (Subsequent monthly payments of ERS)
Within 32 days after the end of each calendar quarter for which the CPI is calculated after 30th September 1992 up to and including the calendar quarter ended 31st March 2022 the Company shall provide the Crown with a statement showing the calculation of the amount of the Ensured Revenue Stream Payments to be made by the Crown based upon the CPI applicable to the calendar quarter most recently ended. On the 10th day of the 2nd, 3rd and 4th months after the month in which such quarter ends, the Crown shall pay one third of the amount stated in the statement.

(d) (Adjustment of subsequent monthly payments of ERS)
Once the CPI for each calendar quarter is known (by whichever of the means referred to in the definition of CPI in Clause 1.1) all Ensured Revenue Stream Payments by the Crown not already adjusted pursuant to this Clause 2.2 will require adjustment as each payment will have been made upon the basis of the CPI and other Past Period Variables for a preceding calendar quarter rather than on the basis of the CPI and other Past Period Variables calculated in respect of the calendar quarter during which the payments were made. Accordingly, on each occasion the Company delivers a statement showing calculations of the amount of payments to be made by the Crown pursuant to Clause 2.2 (c) and on the day the Company delivers a statement under Clause 2.2 (e) it shall also deliver a statement (an "
"Adjustment Statement" ") showing revised calculations of the Ensured Revenue Stream Payments which would have been payable in respect of the 4th, 3rd and 2nd most recent months if based on the actual CPI for the quarter containing those months and on such of the actual figures for the Past Period Variables as are then available for those months. An adjustment, being the difference between the amount paid and the amount shown in the Adjustment Statement in respect of each such month, shall be made on the next date on which the Crown is obliged to make a payment under Clause 2.2 (c) or 2.2 (e), as appropriate, by increasing or decreasing that payment, as appropriate. If the actual figure for any Past Period Variable is not available 5 days before the date on which any Adjustment Statement is to be delivered then, in calculating the adjustment, if any, to be made under this paragraph, the relevant Past Period Variable shall be that used for the purpose of calculating the payment in respect of each such month under paragraph (c).

(e) (Final ERS payments)

(i) On 1st August 2022 the Company shall provide the Crown with a statement showing:

(A) a calculation of the amount of the Ensured Revenue Stream Payments to be made by the Crown based upon an estimate of the CPI for the calendar quarter to end on 30th September 2022; and

(B) a revised calculation of the adjustment to be paid pursuant to Clause 2.2 (d) on 10th August 2022 based upon the CPI and such of the actual figures for the Past Period Variables as are then available for the calendar quarter ended 30th June 2022.

(ii) On 10th August, 2022 the Crown shall pay one third of the amount shown in the statement under (i) (A) above together with any adjustment in relation to (i) (B) above and on 10th September 2022 the Crown shall pay one third of the amount shown in the statement under (i) (A) above.

(iii) For the purpose of (i) above, the estimate by the Company of the CPI for the calendar quarter to end on 30th September 2022 shall be the CPI for the calendar quarter ended 30th June 2022 divided by the CPI for the calendar quarter ended 31st March 2022 and the product thereof shall be multiplied by the CPI for the calendar quarter ended 30th June 2022.

2.3 Artificial CPI's If CPI 2 is unavailable for any reason within 32 days of the end of the relevant calendar quarter, then the Ensured Revenue Stream Payment based upon each calendar quarter for which the CPI is calculated after 30th September 1992 up to and including the calendar quarter ended 31st March 2022 shall be calculated in terms of Clause 2.2 (c) except that CPI 3 for the relevant calendar quarter shall be used in place of CPI 2.
If CPI 2 does not become available for any reason within 75 days of the end of the relevant calendar quarter, then the President of the Institute of Actuaries of Australia (or, if such Institute has ceased to exist, such other institute or body as then carries on the functions of such Institute), or his nominee, acting as an arbitrator (the "
"Arbitrator" ") shall be called upon to calculate an artificial CPI 2 within 42 days of request, which calculation shall be conclusive.
If CPI 2 becomes available within 120 days of the end of the relevant calendar quarter, then that CPI 2 shall be used to calculate adjustments to previously made Ensured Revenue Stream Payments and the appropriate adjustments shall be payable on the next monthly payment date.
If upon the expiration of 120 days from the end of the relevant calendar quarter no CPI 2 has become available, that artificial CPI 2 as calculated by the Arbitrator shall become CPI 2 for that relevant calendar quarter.
The artificial CPI 2 shall then be used for the calculation of adjustments to the previously made Ensured Revenue Stream Payments and the appropriate adjustments shall be payable on the next monthly payment date.
If CPI 2 is subsequently published by the Australian Bureau of Statistics for a quarter in respect of which an artificial CPI 2 calculated under this Clause has been applied to calculations and Ensured Revenue Stream Payments, then no adjustment to past Ensured Revenue Stream Payments shall be made but such published CPI 2 shall apply for all other purposes of this Agreement.
Any reference in this Clause 2.3 to CPI 2 and CPI 3 shall be a reference to those expressions as defined in the definition of "
"Weighted Index" ".

2.4 Reduction in Ensured Revenue Stream Payment If:

(a) operations of the Tunnel do not commence on or before 1st September 1992 for any reason;

(b) at any time after operation of the Tunnel has commenced it is closed for a period or periods exceeding seven consecutive days; or

(c) savings in the cost of the ventilation system for the Tunnel are possible as a result of revised estimates of exhaust emission rates per vehicle,

the Company shall determine the savings in operating expenses (excluding financing expenses and tax provisions) resulting from such non-commencement, closure or savings in cost and, provided the consent of the Mortgagee is endorsed on the relevant notice, notify the Crown of the amount of such savings. The next succeeding Ensured Revenue Stream Payment by the Crown may at the discretion of the Crown be reduced by an amount not greater than the amount so notified.

2.5 Conditions Precedent The obligation of the Crown to make Ensured Revenue Stream Payments is subject to the condition that it has received, in form and substance satisfactory to it, the following prior to the making of the first payment:

(a) (Memorandum and Articles): a certified copy of the Memorandum and Articles of Association of each Relevant Company;

(b) (Corporate authorisations): a certified copy of all corporate authorisations of each Relevant Company required for the execution and performance of each Relevant Document to which it is a party;

(c) (Relevant Documents): a certified copy or, in the case of any Relevant Document to which the Company is a party, the original, of each duly executed, stamped and, where relevant, registered Relevant Document;

(d) (Capital contribution): evidence that the Shareholder has contributed an initial $200,000 capital to the Company, and is bound and will have the financial means to contribute additional capital of $6,800,000; and

(e) (Maritime Services Board): evidence that the Maritime Services Board has granted or will grant a lease of the land described in Schedule 4 to the Sydney Harbour Tunnel (Private Joint Venture) Act 1987 and a licence for, amongst other things, access to the Port Jackson harbour bed.

3. OBLIGATIONS OF CROWN ABSOLUTE AND UNCONDITIONAL

3.1 The obligation of the Crown to make Ensured Revenue Stream Payments to the Company shall, subject to Clauses 2.4 and 2.5, be free from any right of set-off, shall be absolute, unconditional and irrevocable and shall not be affected by any default, event of force majeure or other event or circumstance which otherwise would or might at law terminate or permit termination of this Agreement or any of its provisions, or excuse compliance with or performance or provide a defence to any proceedings to enforce the Crown's obligations under this Agreement. The obligations of the Crown shall not be terminated on account of any such matter or thing and shall be enforceable notwithstanding any such matter or thing.

3.2 Without limiting the generality of Clause 3.1 the obligations of the Crown to make Ensured Revenue Stream Payments shall subject to Clauses 2.4 and 2.5 not be affected by the occurrence of any of the following:

(i) the Tunnel not commencing operations or operating continuously;

(ii) the Tunnel not having been completed;

(iii) the Tunnel not being constructed;

(iv) any interruption or cessation in the operation either in whole or part of the Sydney Harbour Bridge;

(v) the failure of the Crown to receive any money in the form of tolls from the operation of the Sydney Harbour Bridge;

(vi) the existence, currency or enforceability or legality of any agreement, arrangement or understanding whether oral or in writing between any persons in any way connected with the construction or operation of the Tunnel;

(vii) any breach or alleged breach by any person of the terms of any such agreement, arrangement or understanding; or

(viii) the cessation of the existence of any party to any such agreements, arrangements or understandings.

4. RENEGOTIATION

4.1 Renegotiation Events--General Where one of the following events occurs either party may give notice (in the case of paragraph (c) below within 10 Business Days of receipt of the relevant income tax assessment, in which respect time shall be of the essence) to the other, which notice will only be validly given if the consent of the Mortgagee is endorsed on the notice, that it wishes to alter the Ensured Revenue Stream Payments. The events are as follows:

(a) A material unforeseen increase or decrease in the cost of operating the Tunnel (excluding increases in financing costs and tax provisions) occurs as a result of circumstances beyond the reasonable control of the Company (including, without limitation, any change in the law of New South Wales except for awards of industrial tribunals);

(b) the CPI is on any of the dates specified in Schedule 2 less than the corresponding figure in Column 1 or greater than the corresponding figure set out in Column 2 of such Schedule; or

(c) the Company or a company which is a group company of the Company pursuant to Section 80G of the Tax Act receives an income tax assessment to the effect that its claim for a deduction from its assessable income for depreciation on the Immersed Tube Section of the Tunnel is denied and/or to the effect that tax losses (to the extent that these relate to such depreciation) are denied.

4.2 Amount of Adjustment to ERS Payment Promptly upon the receipt of a valid notice arising from one of the events set out in Clauses 4.1 (a), (b) or (c) above the amount payable pursuant to Clause 2.1 shall be amended and an adjustment shall be made. The adjustment shall be as follows:

(a) Where the notice is given pursuant to Clause 4.1 (a) and there is an increase in the cost of operating the Tunnel the Crown shall pay to the Company the amounts certified by the Company's auditors in such notice as being the amount of the increase. Where there is a decrease the Company shall refund to the Crown the amount so determined by the Company's auditors.

(b)

(i) Where the notice is given pursuant to Clause 4.1 (b) as a result of the CPI on any of the dates specified in Part A of Schedule 2 being less than the corresponding figure in Column 1 of Part A of Schedule 2 then not later than 1st October 1992 the Company's auditors shall prepare a statement showing the following calculation:

"CPI6" is the CPI for the full calendar quarter ending 31st December 1988

"CPI7" is the CPI for the full calendar quarter ending 30th June 1989

"CPI8" is the CPI for the full calendar quarter ending 31st December 1989

"CPI9" is the CPI for the full calendar quarter ending 30th June 1990

"CPI10" is the CPI for the full calendar quarter ending 31st December 1990

"CPI11" is the CPI for the full calendar quarter ending 30th June 1991

"CPI12" is the CPI for the full calendar quarter ending 31st December 1991

"CPI13" is the CPI for the full calendar quarter ending 30th June 1992

"CPI14" is the highest CPI for any full calendar quarter between the quarter ended 30 June 1986 and the last calendar quarter prior to the date on which the calculation of Z is being made

"CPI1" is the CPI for the full calendar quarter ended 30 June 1986.

(ii) Where the notice is given pursuant to Clause 4.1 (b) as a result of the CPI on any of the dates specified in Part B of Schedule 2 (a "
"Quarter End Date" ") being less than the corresponding figure in Column 1 of Part B of Schedule 2 the Crown shall in addition to the amount, if any, payable under sub-paragraph (i) pay to the Company the amount certified by the Company's auditors as being the difference between:

(A) the amount payable by the Crown under Clause 2.1 calculated using the CPI H (as defined in the definition of "
"Weighted Index" " in Clause 1.1) applicable to the calendar quarter ended on the relevant Quarter End Date; and

(B) the amount which would have been payable by the Crown under Clause 2.1 if, in the calculation of Weighted Index, CPI H was the figure set out in Column 1 of Part B of Schedule 2 opposite the relevant Quarter End Date.

(iii) Where the notice is given pursuant to Clause 4.1 (b) as a result of the CPI on any of the dates specified in Schedule 2 being greater than the corresponding figure set out in Column 2 of Schedule 2 the Company shall refund to the Crown the amount certified by the Company's auditors in such notice as being the net increase in expected revenue to the Company.

(c) Where the notice is given pursuant to Clause 4.1 (c) the following provisions shall apply:

(i) The Company (at the written request of the Crown) shall contest such assessment by lodging an objection against such assessment with the Commissioner of Taxation within the time required by Section 185 of the Tax Act. Such objection shall contain, amongst other things, such grounds as the Crown shall reasonably request in writing.

(ii) If any such objection shall be disallowed in whole or in part by the Commissioner of Taxation, the Company shall promptly (and, in any event, within 5 Business Days after becoming aware) serve notice of such disallowance upon the Crown, and (at the written request of the Crown) shall either (at the option of the Crown) lodge a request for reference to the Administrative Appeals Tribunal or refer the objection to the Supreme Court of a specified State or Territory or the Federal Court.

(iii) If any reference to the Administrative Appeals Tribunal is decided against the Company, the Company (at the written request of the Crown) shall refer the objection to the Supreme Court of a specified State or Territory or the Federal Court, as directed by the Crown. If an appeal to a court is decided against the Company, then the Company (at the written request of the Crown) shall take such steps as the Crown may reasonably require to cause an appeal in relation thereto to be prosecuted to the extent requested by the Crown and permissible by law.

(iv) If any reference to the Administrative Appeals Tribunal or (as the case may be) any proceedings before such Supreme Court or Federal Court are decided in favour of the Company but the Commissioner of Taxation appeals against any such decision, the Company shall promptly (and, in any event, within 5 Business Days after becoming aware of the same) serve notice of such appeal on the Crown and (at the written request of the Crown) take such steps as the Crown may reasonably require before whatever court such appeal is to be heard.

(v) Any request for the Company to take any action under sub-paragraphs (i) to (iv) inclusive may only be made by the Crown if within 30 days after notice by the Company to the Crown of the assessment, decision or appeal in question, the Crown requests in writing that such assessment, decision or appeal be contested or be the subject of an appeal. Further, the Crown shall and does hereby indemnify the Company from and against all liabilities, losses, costs and expenses which the Company may suffer, incur or sustain as the direct result of objecting to or contesting or appealing from any such assessment, decision or appeal including, without limitation:

(1) reasonable legal fees on a solicitor and client basis and disbursements; and

(2) the amount of any interest or penalty which is actually incurred as a result of contesting or appealing any such assessment, decision or appeal.

In pursuance of the foregoing, if it becomes necessary in connection with any objection, reference or appeal under this Clause 4.2 (c) to make any payment to the Commissioner of Taxation on account of a disputed assessment, such payment shall be made by the Crown forthwith upon receiving notice from the Company to do so.

(vi) Notwithstanding any objection, reference or proceedings undertaken or made by or on behalf of the Company pursuant to sub-paragraphs (i) to (iv) of this Clause 4.2 (c), the Crown shall pay the amount certified by the Company's auditors (a copy of which certificate shall be annexed to the notice given by the Company pursuant to Clause 4.1 (c)) as being the additional tax payable. Forthwith, upon the determination of such proceedings, objection or reference, the Company and the Crown shall make such payments by way of adjustment as the Company's auditors determine to be necessary to give effect to the outcome of such proceedings, objection or reference.

(vii) Any determination made by the Company's auditors for the purposes of this Agreement shall be conclusive and binding on the parties to this Agreement (in the absence of manifest error) and this Agreement shall be deemed to have been amended so as to incorporate that determination, as if it had become effective immediately upon the date specified in or by reference to the relevant income tax assessment.

(viii) Any reference in this Clause 4.2 (c) to the Company includes a reference to a company which is a group company of the Company pursuant to Section 80G of the Tax Act and the Company shall procure that any such group company complies with its obligations under this Clause 4.2 (c) accordingly.

4.3 Renegotiation Events--Construction Cost Where the cost of constructing the Tunnel is increased as a result of any of the following events either party may give notice to the other (with a copy to the Mortgagee) that it wishes an alteration in the amount payable by the Crown to the Company under Clause 2.1. The events are as follows:

(a) change in the law of New South Wales affecting the design and construction of the Tunnel except for awards of industrial tribunals;

(b) injunctive or other proceedings or relief under the law of New South Wales except where due to:

(i) the negligence fraud or wilful misconduct of the Company, the Joint Venturers or their sub-contractors;

(ii) non-compliance with the Environmental Impact Determination; or

(iii) the Company's non-compliance with the Lease;

(c) failure of the Commissioner to comply with its obligation under Clause 2.5 of the Lease; or

(d) acts or omissions by the Crown outside the terms of the Lease having a direct effect on the Tunnel.

4.4 Additional Payment by Crown Where notice is given pursuant to Clause 4.3 the Company will use its best endeavours to obtain additional funding on terms acceptable to it to meet the increased costs. Where such funding is available the Crown shall pay to the Company an amount certified by the Company's auditors in the notice as being necessary to repay such additional funding and to meet all interest and other charges payable with respect to it. Where it is not possible to arrange additional funding on terms acceptable to the Company the Crown shall pay to the Company the amount certified by the Company's auditors as being the additional cost.

5. EVIDENCE OF CALCULATIONS

(a) The Company shall procure that the Company's auditors make any calculations (and furnish appropriate certificates in respect of such calculations) which such auditors are required to make in accordance with any provision of this Agreement.

(b) The Company shall promptly provide the Crown with sufficient information (including, without limitation, a certified copy of any certificates furnished by its auditors) to enable it to check and verify any calculations made by the Company or the Company's auditors pursuant to any provision of this Agreement.

6. COMPANY'S RIGHT TO GIVE SECURITY INTEREST OVER THIS AGREEMENT

For the purpose of securing its obligations to any person or persons providing financial accommodation to it, the Company may give a Security Interest over this Agreement and its rights to payment from the Crown to any person who provides financial accommodation to the Company or to any trustee for any such person. Where any person holding a first ranking Security Interest gives notice of its interest to the Crown no amendment to this Agreement or variation of any payment to be made under this Agreement (other than a variation pursuant to Clauses 2.4, 4.1 or 4.2 made as a result of a notice endorsed by the Mortgagee or a variation pursuant to Clause 4.3) and no waiver of the performance of any of the obligations of the Crown under this Agreement shall be effective unless approved in writing by the Mortgagee.

7. NOTICES

Any notice, approval, consent or other communication given or made to or by a party under this Agreement shall be in writing delivered to the address or sent to the telex number or facsimile number of the recipient shown below or to such other address, telex number or facsimile number as the recipient may have notified the sender and shall be deemed to be duly given or made:

(a) (in the case of delivery in person or by facsimile transmission) when delivered to the recipient at such address or facsimile number; or

(b) (in the case of telex) on receipt by the sender of the answerback code of the recipient at the end of transmission.

(i) The Crown:
The Minister for Roads,
C/- The Commissioner for Main Roads,
4th Floor, 309 Castlereagh Street,
Sydney, N.S.W. 2000
Telex No.: AA121825
Facsimile: (02) 218 6794

(ii) The Company:
Sydney Harbour Tunnel Company Limited,
3rd Floor, 100 Arthur Street,
North Sydney, N.S.W. 2060
Telex No.: AA21396 Answerback: TRANSHO
Attention: The Secretary
Facsimile: (02) 922 2834

8. GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of New South Wales.

9. RESTRICTION ON ASSIGNMENTS

Neither the Crown nor the Company shall assign or transfer all or any part of its rights or obligations under this Agreement without the prior consent of the other of them and the Mortgagee. This Agreement shall be binding upon and inure to the benefit of each party and its respective successors and permitted assigns.

IN WITNESS the parties have executed this Agreement on the date first written on page 1 of this Agreement.

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