New South Wales Consolidated Acts

SYDNEY HARBOUR TUNNEL (PRIVATE JOINT VENTURE) ACT 1987 - SCHEDULE 6

SCHEDULE 6 – The Net Bridge Revenue Loan 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 Commissioner has agreed to make certain loans to the Company on the terms of this Agreement.

NOW THIS AGREEMENT WITNESSES as follows:

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions "
"Business Day" " means any day on which trading banks are open for business in Sydney.
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"Crown" " means The Honourable Laurence John Brereton Minister for Public Works and Ports and Minister for Roads for and on behalf of Her Majesty Queen Elizabeth the Second in Right of the State of New South Wales.
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"Date of Completion" " means the date on which the Tunnel is first opened to the public for the passage of vehicular traffic.
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"DMR Deed of Charge" " means the deed of charge dated the same date as this Agreement between the Company as mortgagor and the Commissioner as mortgagee.
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"ERS Agreement" " means the Ensured Revenue Stream Agreement dated the same date as this Agreement between the Company and the Crown.
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"Government Agency" " means any government or any governmental, semi governmental or judicial entity or authority.
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"Joint Venturer" " means each of Transfield (SHTJV) Pty. Limited and Kumagai Gumi Co., Ltd. and "
"Joint Venturer" " means either of them.
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"Lease" " means the Lease between the Commissioner and the Company dated the same date as this Agreement.
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"Loans" " means the loans made by the Commissioner pursuant to Clause 2.1.
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"Mortgagee" " means any holder of a first ranking Security Interest over this Agreement who gives notice to the Commissioner pursuant to Clause 7.
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"MSF Account" " means the account of that name referred to in Clause 3.3 of the Operation, Repair and Maintenance Agreement.
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"Operating Account" " means the account of that name referred to in Clause 3.2 of the Operation, Repair and Maintenance Agreement.
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"Operation, Repair and Maintenance Agreement" " means the agreement so entitled dated the same date as this Agreement between the Commissioner and the Company.
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"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.
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"Relevant Document" " means each of:

(a) this Agreement;

(b) the ERS Agreement;

(c) the Trust Deed;

(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;

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

(k) the DMR Deed of Charge;

(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.
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"Security Interest" " includes any mortgage, pledge or charge or any security or preferential interest or arrangement of any kind given by the Company.
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"Senior Debt" " means all money (other than the Loans) which the Company is or may become actually or contingently liable to pay on any account, including (without limitation) any money payable pursuant to any contractual obligation where such payment is conditional upon the performance by another person of an obligation owed to the Company.
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"Senior Creditor" " means any person to whom the Company owes Senior Debt.
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"Shareholder" " means Tunnel Holdings Pty. Limited.
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"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 Commissioner in writing from time to time.
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"Trust Deed" " means the deed dated the same date as this Agreement under which the Company has granted a charge in favour of Perpetual Trustee Company Limited.
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"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.

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 clauses, annexures and schedules of this Agreement; and

(c) references to any party to this Agreement or any other document or agreement shall include its successors or permitted assigns.

1.3 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. NET BRIDGE REVENUE LOANS

2.1 Loans Subject to Clause 4, unless and to the extent that the Mortgagee otherwise agrees in writing, the Commissioner shall if requested by notice in writing from the Company make loans to the Company on each of the following dates in the following amounts:

DATE		AMOUNT $m
10th July 1987		2.500
On the 10th day of each of the months
from August 1987 until July 1988	inclusive	2.483
"  August 1988 until January 1989	"	2.550
"  February 1989 until July 1989	"	3.467
"  August 1989 until July 1990	"	3.983
"  August 1990 until July 1991	"	4.017
"  August 1991 until July 1992	"	4.142
10th August 1992		4.250
10th September 1992		4.248

The Loans will be paid into the Special Account.

2.2 Repayment Subject to the terms of this Agreement and in particular to Clause 2.4 the Loans will become repayable on 31 December, 2022 or the determination of the Lease whichever is later.

2.3 Interest The Loans will be interest free.

2.4 Funds for repayment Subject to the terms of this Agreement the Loans will be repayable out of funds available as at the repayment date comprising:

(a) the amount uncalled or called and unpaid in respect of the four million ordinary shares of one dollar each issued paid as to one cent on the Date of Completion; and

(b) the net assets of the Company excluding all funds in the Operating Account and all funds in the MSF Account as at the date of the repayment.

3. - REPRESENTATIONS AND WARRANTIES

The Company makes the following representations and warranties for the benefit of the Commissioner as at the date of this Agreement.

(a) (Status): It is a corporation validly existing under the laws of the State of New South Wales.

(b) (Corporate power): It has the corporate power to enter into and to perform its obligations under this Agreement and each other Relevant Document to which it is a party.

(c) (Corporate authorisations): It has taken all necessary corporate action to authorise the entry into and performance of this Agreement and each other Relevant Document to which it is a party.

(d) (Agreement binding): This Agreement and each other Relevant Document to which it is a party is a valid and binding obligation enforceable in accordance with its terms.

(e) (Transaction permitted): Neither the execution and performance by it of this Agreement and each other Relevant Document to which it is a party nor any transaction contemplated under it or them will violate in any respect any provision of:

(i) any treaty or law or any judgment, ruling, order or decree of any Governmental Agency binding on it;

(ii) its memorandum or articles of association; or

(iii) any other document or agreement which is binding upon it or its assets.

(f) (No litigation): No litigation, arbitration, tax claim, dispute or administrative proceeding is current or pending or is, to its knowledge threatened against it or any of its assets.

(g) (Scope of business): It does not carry on any business other than that necessary to comply with its obligations under the Relevant Documents.

4. - CONDITIONS PRECEDENT

The obligation of the Commissioner to provide the Loans is subject to the condition that he has received, in form and substance satisfactory to him, the following prior to the making of the first Loan:

(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;

(e) (No default): a certificate from a director of the Company that no Relevant Company is in default under any Relevant Document to which it is a party;

(f) (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; and

(g) (Special Account): evidence that the Special Account has been established and that the acts, matters and things required to be done to ensure that withdrawals from the Special Account may only be made with the consent of the Commissioner in accordance with Clause 5.2 of the Trust Deed have been done.

5. - OBLIGATION OF COMMISSIONER ABSOLUTE AND UNCONDITIONAL

5.1

Subject to Clause 4 the obligation of the Commissioner to make Loans to the Company under Clause 2 shall 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 of or provide a defence to any proceedings to enforce the Commissioner's obligations under this Agreement. The obligations of the Commissioner shall not be terminated on account of any such matter or thing and shall be enforceable notwithstanding any such matter or thing.

5.2

Without limiting the generality of Clause 5.1 the obligations of the Commissioner under Clause 2 shall not be affected by the occurrence of any of the following:

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

(b) the Tunnel not having been completed;

(c) the Tunnel not being constructed;

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

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

(f) 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;

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

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

6. - SUBORDINATION

6.1

The Loans will be subordinated to the payment of all Senior Debt of the Company and accordingly the Commissioner will not claim or receive from the Company by set off or in any other manner any part of the Loans until all Senior Debt has been paid.

6.2

In the event of any payment or distribution of assets of the Company in cash or in kind upon any dissolution, winding up, liquidation or reorganisation of the Company, the Senior Creditors shall first be entitled to receive payment in full of their indebtedness before the Commissioner receives any payment in respect of the Loans.

6.3

Any distribution to which the Commissioner would be entitled but for the provisions of this Agreement shall be paid or delivered by the liquidator directly to the Senior Creditors rateably according to their indebtedness until they have been paid in full.

6.4

If notwithstanding Clause 6.2 any distribution is received by the Commissioner in respect of the Loans such distribution shall be paid over to the Senior Creditors for application rateably against their Senior Debt until the Senior Debt has been paid in full and until such payment in full shall be held in trust by the Commissioner for the Senior Creditors. For the purposes of this Clause the Commissioner may rely on a certificate from the Mortgagee as to the identity of Senior Creditors and the amount of their Senior Debt.

6.5

Without prejudice to the Company's obligations under the DMR Deed of Charge, the Company shall not without the prior written consent of the Commissioner enter into any contract or arrangement or otherwise incur obligations (whether present or future, actual or contingent) of any kind whatsoever (including, without limitation, any sub-contract of its obligations under the Operation, Repair and Maintenance Agreement) otherwise than on terms appropriate to an arms length commercial transaction in the ordinary course of the Company's business or by virtue of which the Company's ability to repay the Loans in accordance with Clause 2.2 will or may be prejudiced.

6.6

Notwithstanding anything else in this Agreement the Loans shall only be repayable if the Commissioner has made all Loans which it is required to make under Clause 2.1 and if those Loans have been paid into the Special Account.

7. - 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 receive Loans. Where any person holding such a Security Interest gives notice of its interest to the Commissioner no amendment to this Agreement and no waiver of the performance of any of the obligations of the Commissioner under this Agreement shall be effective unless approved in writing by the Mortgagee.

8. - PROHIBITION ON ASSIGNMENTS

Neither the Company nor the Commissioner may sell, assign or transfer all or any part of its rights or obligations under this Agreement without the prior written consent of the other of them and the Mortgagee. If such consent is given this Agreement shall be binding upon and inure to the benefit of each party and its respective successors and assigns.

9. - WAIVER OF IMMUNITY

The Commissioner waives its immunity (if any) under any act or rule of law from legal proceedings or proceedings by way of arbitration which may be instituted against the Commissioner in the enforcement of this Agreement, notwithstanding any act or rule of law to the contrary.

10. - 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 Commissioner:
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

11. - GOVERNING LAW

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

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