[s. 3]
[Heading inserted: No. 10 of 2021 s. 7.]
2020
THE HONOURABLE MARK McGOWAN
PREMIER OF THE STATE OF WESTERN AUSTRALIA
AND
BBI RAIL AUS PTY LTD
ABN 44 604 857 392
AND
TODD PETROLEUM MINING COMPANY LIMITED
NZBN 9429040945767
TODD OFFSHORE LIMITED
NZBN 9429030115989
TODD MINERALS LIMITED
NZBN
9429030762596
RAILWAY (BBI RAIL AUS PTY LTD) AGREEMENT 2017
RATIFIED VARIATION AGREEMENT
[Solicitor’s details]
THIS AGREEMENT is made this 10 day of September 2020
BETWEEN
THE HONOURABLE MARK McGOWAN , BA, LLB, M.L.A., Premier of the State of Western
Australia, acting for and on behalf of the said State and its
instrumentalities from time to time (" the State ") of the first part,
AND
BBI RAIL AUS PTY LTD ABN 44 604 857 392 of Level 3, 151 Macquarie Street,
Sydney, New South Wales (" the Company ") of the second part,
AND
TODD PETROLEUM MINING COMPANY LIMITED NZBN 9429040945767 of Level 15, The Todd
Building, 95 Customhouse Quay, Wellington, New Zealand, TODD OFFSHORE LIMITED
NZBN 9429030115989 of Level 15, The Todd Building, 95 Customhouse Quay,
Wellington, New Zealand and TODD MINERALS LIMITED NZBN 9429030762596 of Level
15, The Todd Building, 95 Customhouse Quay, Wellington, New Zealand (each a "
Guarantor " and collectively " the Guarantors ") of the third part.
RECITALS
A. The State, the Company and the Guarantors are
the parties to the agreement dated 23 January 2017 ratified by and scheduled
to the Railway (BBI Rail Aus Pty Ltd) Agreement Act 2017 and which is referred
to in this Agreement as the " Principal Agreement ".
B. The parties wish to vary the provisions of the
Principal Agreement on the terms and conditions set out in this Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. Ratification and operation
(1) This Agreement,
other than this clause, does not come into operation except in accordance with
subclause (2).
(2) This Agreement,
other than this clause, comes into operation on the day on which it is
ratified by an Act of the Parliament of Western Australia (" Operative Date ")
unless, before that day, it terminates under subclauses (4) or (5).
(3) The State must
introduce in the Parliament of Western Australia before 30 September 2020 or a
later date agreed between the parties to this Agreement, a Bill to ratify this
Agreement and must endeavour to secure its passage as an Act.
(4) If by 30 June 2021
this Agreement has not been ratified by an Act of the Parliament of Western
Australia then, unless the parties to this Agreement otherwise agree, this
Agreement terminates on that day and no party hereto will have any claim
against any other party hereto with respect to any matter or thing arising out
of, done, performed, or omitted to be done or performed under this Agreement.
(5) The parties agree
that if the Principal Agreement is otherwise determined in accordance with its
provisions on a day prior to the Operative Date, then this Agreement shall
also terminate on and from that day and no party hereto will have any claim
against any other party hereto with respect to any matter or thing arising out
of, done, performed, or omitted to be done or performed under this Agreement.
2. Variations of the Principal Agreement
The Principal
Agreement is varied as follows:
(1) in clause 1 by
deleting the word "and" after the definition of "SRL spur line Operation Date"
and inserting the following definitions after the definition of "this
Agreement", "hereof" and "hereunder":
"Variation Agreement" means the variation agreement made on or about 16
September 2020 between the Honourable Mark McGowan, Premier of Western
Australia acting for and on behalf of the said State and its instrumentalities
from time to time, the Company and the Guarantors; and
"Variation Date" means the date on which clause 2 of the Variation Agreement
comes into operation;
(2) in clause 11(1) by
deleting "31 March 2019" and substituting "31 March 2022";
(3) by inserting after
clause 11(5) the following new subclause:
"(6) The provisions of clause 27 shall not apply
to this clause.";
(4) in clause 12(6) by
deleting “1 October 2019” and inserting “1 October
2022”;
(5) by inserting after
clause 19(4) the following new subclause:
"(5) The Company acknowledges that nothing in this
Agreement shall be taken to limit the rights of the State to enact general
legislation in substitution for or modification of, in whole or in part, the
provisions of this Agreement (including clauses 9 and 10) relating to local
participation."; and
(6) in clause 28(2) by
deleting “The” and substituting “After the Variation Date,
the”;
EXECUTED as a deed.
SIGNED by THE HONOURABLE )
MARK McGOWAN )
[Signature]
in the presence of: )
[Signature]
Signature of witness
NADEEN LYN ROBERTS
Name of witness
EXECUTED by BBI RAIL AUS PTY LTD ABN 44 604 857 392 in accordance with
section 127(1) of the Corporations Act 2001 (Cth) by authority of its
directors: [Signature] ............................................. Signature of director JONATHON TERENCE YOUNG ............................................. Full name of director (block letters) |
) |
[Signature] .......................................... Signature of director NICHOLAS CURTIS .......................................... Full name of director (block letters) |
EXECUTED by TODD PETROLEUM MINING COMPANY LIMITED ............................................. Signature of director CHRISTOPHER BRIAN HALL ............................................. Full name of director (block letters) |
) |
.......................................... Signature of director JONATHON TERENCE YOUNG .......................................... Full name of director (block letters) |
EXECUTED by TODD OFFSHORE LIMITED NZBN 9429030115989 in accordance with
section 180 of the Companies Act 1993 (New Zealand) by authority of its
directors:
............................................. Signature of director MICHAEL JOHN TODD ............................................. Full name of director (block letters) |
) |
.......................................... Signature of director HENRY ALEXANDER BRYAN TAIT .......................................... Full name of director (block letters) |
EXECUTED by TODD MINERALS LIMITED NZBN 9429030762596 in accordance with
section 180 of the Companies Act 1993 (New Zealand) by authority of its
directors:
............................................. Signature of director CHRISTOPHER BRIAN HALL ............................................. Full name of director (block letters) |
) |
.......................................... Signature of director JONATHON TERENCE YOUNG .......................................... Full name of director (block letters) |
[Schedule 2 inserted: No. 10 of 2021 s. 7.]
This is a compilation of the Railway (BBI Rail Aus Pty Ltd) Agreement Act
2017 and includes amendments made by other written laws. For provisions that
have come into operation see the compilation table. For provisions that have
not yet come into operation see the uncommenced provisions table.
Short title |
Number and year |
Assent |
Commencement |
---|---|---|---|
Railway (BBI Rail Aus Pty Ltd) Agreement Act 2017 |
15 of 2017 |
5 Dec 2017 |
Pt. 1: 5 Dec 2017 (see s. 2(a)); |
Railway (BBI Rail Aus Pty Ltd) Agreement Amendment Act 2021 |
10 of 2021 |
17 Aug 2021 |
s. 1 and 2: 17 Aug 2021 (see s. 2(a)); |
To view the text of the uncommenced provisions see Acts as passed on the WA
Legislation website.
Short title |
Number and year |
Assent |
Commencement |
---|---|---|---|
15 of 2017 |
5 Dec 2017 |
To be proclaimed (see. s. 2(c)) |
Defined terms
[This is a list of terms defined and the provisions where they
are defined. The list is not part of the law.]
Defined term Provision(s)
2020 variation agreement
3
Agreement 3
scheduled agreement 3