Western Australian Current Acts Western Australian Current Acts[s. 3]
THIS AGREEMENT is made this 11th day of August 2002
BETWEEN
THE HONOURABLE DR. GEOFFREY IAN GALLOP , B.Ec., MA., MPhil., DPhil., 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 (hereinafter called
“the State”) of the first part,
WESBEAM PTY LTD ACN 004 268 017 of Suite 9, 89 Forrest Street, Cottesloe,
Western Australia (hereinafter called “the Company” in which term
shall be included its successors and permitted assigns) of the second part,
and
WESBEAM HOLDINGS LIMITED ACN 095 594 826 of Suite 9, 89 Forrest Street,
Cottesloe, Western Australia (hereinafter called “the Guarantor”)
of the third part.
WHEREAS:
A. The State of Western Australia has established
softwood plantations on
land covering and adjacent to the aquifer known as the
Gnangara Mound. The Gnangara Mound is an important source of potable water for
Western Australia. The State wishes the progressive harvesting of its softwood
plantations on and adjacent to the Gnangara Mound to continue as part of its
plans to protect the Gnangara Mound groundwater resource.
B. The Company wishes to establish and operate in
Western Australia at the Site a plant to process Timber into laminated veneer
lumber and other Timber Products. The Company intends to market laminated
veneer lumber within Australia as a suitable substitute for large dimension
structural beams produced from old growth hardwood forest resource. The
Company has also identified overseas markets for the dry veneer and other
Timber Products to be produced by it and local markets for residues resulting
from its wood processing activities.
C. Before establishing that plant the Company
needs (among other things) to be assured that during the currency of this
Agreement it can obtain on reasonable and commercial terms from the
State’s softwood plantations on and adjacent to the Gnangara Mound and
from other parts of the Timber Supply Area a reliable supply of Timber
suitable for the production of laminated veneer lumber and other Timber
Products. The Company also wishes to have the opportunity during the currency
of this Agreement of obtaining additional Timber from the Timber Supply Area
if such Timber becomes available.
D. The State recognises:
(a) that the harvesting of Timber from the
State’s softwood plantations on and adjacent to the Gnangara Mound will
assist the State in implementing its plans to protect the Gnangara Mound
groundwater resource;
(b) that it is in the interests of the State that
Timber harvested by the Commission from the Timber Supply Area be fully
processed in Western Australia; and
(c) that the Company’s proposed wood
processing activities under this Agreement will add value to an important
resource of the State.
Accordingly and for the purpose of promoting
employment opportunities and industrial development generally the State has
agreed to assist the Company on the terms of this Agreement.
E. For the purposes of providing part of the
Company’s Timber requirements for the Plant during the Further Term (as
defined in clause 6) and of the Company being granted in accordance with, and
subject to the conditions set out in, clause 6 rights to the supply by the
Commission of Timber (if available) for the Plant during the Further Term, the
Company proposes to spend $1,000,000 during each Year of the Term commencing
from 1 July 2009 on planting in the Timber Supply Area trees suitable for the
production of Timber Products. The Company also considers such planting will
allow the Plant’s production during the Further Term to be increased and
assist endeavours by the State to address land salinity concerns in the Timber
Supply Area.
NOW THIS AGREEMENT WITNESSES:
1. In this Agreement subject to the context:
“Additional Area” means that land
being at the date of this Agreement portion of Lot 10053 on Deposited Plan
186030 and being part of the land in Certificate of Title Volume 1659 Folio
100 and comprising an area of 5 hectares at Neerabup, Western Australia as
shown coloured green on the plan “A” attached hereto and
initialled by or on behalf of the parties on the date of this Agreement for
the purpose of identification and which the Company has or will have the
option to purchase from LandCorp on the terms and conditions of the Option
Deed. The Additional Area adjoins the 10 hectares of land at Neerabup, Western
Australia that the Company has agreed or will agree to purchase from LandCorp
on the terms and conditions of the Contract of Sale;
“Additional Timber Limit” means in
relation to a Year 90,000 cubic metres less the total quantity of Timber
offered by the Commission in respect of that Year (including pursuant to past
offers) to the Company as referred to in clause 5(2) and accepted by the
Company or the subject of a counter-offer by the Company which is accepted by
the Commission;
“ advise ”, “ apply ”,
“ approve ”, “ approval ”, “ consent ”,
“ certify ”, “ direct ”, “ notice ”,
“ notify ”, “ request ”, or “ require ”,
means advise, apply, approve, approval, consent, certify, direct, notice,
notify, request or require in writing as the case may be and any inflexion or
derivation of any of those words has a corresponding meaning;
“ Available Additional Timber ” has
the meaning given to it in the Production Contract;
“CALM Act” means the
Conservation and Land Management Act 1984 ;
“Commencement Date” means the date on which the Bill referred to
in clause 3 commences to operate as an Act;
“Commission” means the Forest Products
Commission established under the Forest Products Act;
“Commission Sharefarmed Land” means
land that is the subject of a timber sharefarming agreement made pursuant to
section 34B of the CALM Act and which pursuant to the transitional provisions
of schedule 1 clause 4 to the Conservation and Land Management Amendment Act
2000 has effect as if it had been entered into by the Commission, and land
that is the subject of a timber sharefarming agreement made pursuant to
section 52 of the Forest Products Act;
“Commonwealth” means the Commonwealth
of Australia and includes the Government for the time being thereof;
“Concurrent Contract” means a contract
under which the Commission makes, or is to make, Timber available for supply
to the Company and which results from the acceptance by the Company of an
offer of a quantity of Timber as referred to in clause 5(2) or the
Commission’s acceptance of a counter-offer from the Company for the same
or a lesser quantity of Timber;
“Contract of Sale” means the contract
of sale entered into or to be entered into on or about the date of this
Agreement between LandCorp, the Company and the Guarantor for the purchase by
the Company from LandCorp of the Site subject to the Bill to ratify this
Agreement being passed by the State Parliament of Western Australia and
commencing to operate as an Act as referred to in clause 3;
“cubic metre” means a cubic metre of
Timber under bark calculated on the basis that the length of each softwood log
taken into account is the sum of the length of each billet of 2.5 metres in
length (or such other length as may from time to time be agreed in writing by
the Company and the Commission) able to be cut from the softwood log;
“Department” means the Department of
Conservation and Land Management referred to in section 32 of the CALM Act;
“Departmental land” means:
(a) State forest and timber reserves within the
meaning of the CALM Act;
(b) land that is the subject of a declaration
under section 87(2) of the CALM Act; and
(c) land held by the Executive Director under
section 131 of the CALM Act;
“Departmental Sharefarmed Land” means
land that is the subject of a timber sharefarming agreement made pursuant to
section 34B of the CALM Act (not being a timber sharefarming agreement to
which the transitional provisions of schedule 1 clause 4 to the Conservation
and Land Management Amendment Act 2000 apply);
“Executive Director” means the
executive director of the Department referred to in section 36(1) of the CALM
Act;
“ Forest Products Act ” means the
Forest Products Act 2000 ;
“LandCorp” means the Western
Australian Land Authority a body corporate established under the
Western Australian Land Authority Act 1992 ;
“laws relating to native title” means
laws applicable from time to time in Western Australia in respect of native
title and includes the Native Title Act 1993 (Commonwealth);
“local government” means a local
government established under the Local Government Act 1995;
“Minister” means the Minister in the
Government of the State for the time being responsible for the administration
of the Act to ratify this Agreement and pending the passing of that Act means
the Minister for the time being designated in a notice from the State to the
Company and includes the successors in office of the Minister;
“Minister for Planning” means the
Minister in the Government of the State for the time being responsible for the
administration of the Town Planning and Development Act 1928;
“month” means calendar month;
“Option Deed” means the deed entered
into or to be entered into on or about the date of this Agreement between
LandCorp, the Company and the Guarantor for the grant by LandCorp to the
Company of an option to purchase the Additional Area subject to the Bill to
ratify this Agreement being passed by the State Parliament of Western
Australia and commencing to operate as an Act as referred to in clause 3;
“person” or “persons”
includes bodies corporate;
“Plant” means the plant and all
necessary ancillary buildings, works, plant and equipment and services to be
constructed and established by the Company on the Site in accordance with
clause 4 for the processing by the Company of Timber into laminated veneer
lumber and other Timber Products;
“Production Contract” means the
contract in the form marked “B” initialled by or on behalf of the
parties on the date of this Agreement for the purpose of identification and
under which the Commission is to make Timber available for supply to the
Company as referred to in clause 5(1);
“Public land” means Crown land within
the meaning of section 11 of the CALM Act and Departmental land;
“residues” means green residues, dry
residues and bark by-products resulting from the production of Timber Products
by the Company at the Plant;
“Site” means the land being at the
date of this Agreement portion of Lot 10053 on Deposited Plan 186030 and being
part of the land in Certificate of Title 1659 Folio 100 and comprising an area
of 10 hectares at Neerabup, Western Australia as shown coloured red on the
plan marked “A” attached hereto and initialled by or on behalf of
the parties on the date of this Agreement for the purpose of identification
and which the Company has agreed or will agree to purchase from LandCorp on
the terms and conditions of the Contract of Sale. If the Company acquires
ownership of the Additional Area pursuant to the exercise of the option in
that regard granted or to be granted to it under the Option Deed, a reference
in this Agreement (other than in the definition of Contract of Sale in this
clause) to the Site will from then on include the Additional Area;
“Term” means the term of this
Agreement specified in clause 24(1);
“this Agreement” ,
“hereof” and “hereunder” refer to this Agreement as
from time to time added to, varied or amended;
“Timber” means timber of the genus
pinus and the species pinaster or radiata or other species agreed in writing
by the Commission and the Company from time to time and in respect of which
the Commission has at the relevant time harvesting and sale rights;
“Timber Products” means laminated
veneer lumber, dry veneer, plywood and I-joists and such other allied products
as the Minister may approve from time to time for the purpose of this
Agreement;
“Timber Supply Area” means:
(a) Public land;
(b) Commission Sharefarmed Land; and
(c) Departmental Sharefarmed Land,
within a geographical radius of 250 kilometres of
the Site; and
“Year” means the period from and
including 1 July of any year to and including 30 June of the next year.
Interpretation
2. (1) In this
Agreement:
(a) monetary references are references to
Australian currency unless otherwise specifically expressed;
(b) power given under any clause other than clause
15 to extend any period or date shall be without prejudice to the power of the
Minister under clause 15;
(c) clause headings do not affect interpretation
or construction;
(d) words in the singular shall include the plural
and words in the plural shall include the singular according to the
requirements of the context;
(e) one gender includes the other genders;
(f) a covenant or agreement by more than one
person binds, and is enforceable against, those persons jointly and each of
them severally;
(g) reference to an Act includes the amendments to
that Act for the time being in force and also any Act passed in substitution
therefor or in lieu thereof and the regulations for the time being in force
thereunder;
(h) reference in this Agreement to any other
document includes that document as from time to time added to, varied or
amended and notwithstanding any change in the identity of the parties;
(i) reference to a clause or schedule is a
reference to a clause or schedule to this Agreement, and a reference to a
subclause or paragraph is a reference to the subclause of the clause or
paragraph of the clause or subclause as the case may be in, or in relation to,
which the reference is made;
(j) reference to the Commission includes the
person or body for the time being exercising the statutory powers and
functions relevant to this Agreement exercised by the Commission at the date
of this Agreement; and
(k) “including” means
“including, but not limited to”.
(2) Nothing in this
Agreement shall be construed to exempt the State or the Company from
compliance with or to require the State or the Company to do anything contrary
to any law relating to native title or any lawful obligation or requirement
imposed on the State or the Company as the case may be pursuant to any law
relating to native title.
(3) Nothing in this
Agreement shall be construed to exempt the Company from compliance with any
requirement in connection with the protection of the environment arising out
of or incidental to its activities under this Agreement that may be made
pursuant to the Environmental Protection Act 1986 .
Ratification and operation
3. (1) The State must
introduce and sponsor a Bill in the State Parliament of Western Australia to
ratify this Agreement and endeavour to secure its passage as an Act prior to
26 September 2002 or such later date as may be agreed between the parties
hereto.
(2) The provisions of
this Agreement other than this clause and clauses 1 and 2 will not come into
operation until the Bill referred to in subclause (1) has been passed by the
State Parliament of Western Australia and comes into operation as an Act.
(3) If by 24 October
2002 the said Bill has not commenced to operate as an Act then, unless the
parties hereto otherwise agree, this Agreement will then cease and determine
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.
(4) On the said Bill
commencing to operate as an Act all the provisions of this Agreement will
operate and take effect notwithstanding the provisions of any Act or law.
Establishment of the Plant
4. (1) The Company
hereby covenants with the State that by 31 December 2002 the Company will
commence to erect and thereafter will diligently proceed with the construction
and establishment on the Site of a plant designed to process and capable of
processing not less than 160,000 cubic metres per year of Timber into
laminated veneer lumber and other Timber Products, and will within 2 years
after the commencement thereof complete the construction and establishment of
the plant on the Site and commence operating it.
(2) In constructing,
establishing and operating the Plant the Company must comply with all
statutes, regulations and by-laws and the requirements of any relevant public,
local government or other authority.
Supply of Timber during the Term
5. (1) The State must
ensure that the Commission enters into the Production Contract and during the
period commencing on the Commencement Date (or if that date is for any reason
considered inappropriate by the Commission and the Company, such later date as
they may agree in writing) and expiring on 30 June 2029 makes available for
supply to the Company at the Site up to 4,120,000 cubic metres (or such lesser
quantity as is agreed between the Commission and the Company) of Timber in
accordance with the log specifications, at the prices and upon the other terms
and conditions agreed between the Commission and the Company in or under the
Production Contract. The Company and the Guarantor must enter into the
Production Contract.
(2) During the period
referred to in subclause (1) the State must until the Additional Timber Limit
for each then remaining Year of the Term has been reached:
(a) ensure that except as otherwise permitted
under the Production Contract the Commission does not sell, or agree to make
available for supply, to a third party Available Additional Timber, or Timber
that would be Available Additional Timber if immediately before that sale was
made or that agreement was entered into a calculation of Available Additional
Timber was undertaken pursuant to clause 10.1 of the Production Contract and
immediately notified to the Company pursuant to clause 10.2 of the Production
Contract, which if offered to the Company and accepted by it would not cause
the Additional Timber Limit for the Year or Years of its intended supply to be
exceeded, without first offering to the Company to make that Timber available
for supply to it at the Site upon the terms and conditions for such offer in
the Production Contract; and
(b) if a periodic notification to the Company from
the Commission under the Production Contract of Available Additional Timber
discloses that not less than 5,000 cubic metres per Year of Timber of the same
specifications as to age, quality and dimensions would be available for supply
from the Timber Supply Area for a period of not less than 5 consecutive Years
that would commence within a timeframe agreed between the Commission and the
Company and expire on or before 30 June 2029, ensure that the Commission
offers to the Company to make available for supply to it at the Site for each
Year of that period of supply and upon the terms and conditions for such offer
in the Production Contract the quantity of such Timber disclosed as available
for that Year which if offered to the Company and accepted by it would not
cause the Additional Timber Limit for that Year to be exceeded.
(3) For the purposes
of this Agreement in respect of the Production Contract and each Concurrent
Contract the Forest Products Act shall be deemed modified by:
(a) the deletion of sections 58, 59 and 61(b)(ii);
and
(b) the insertion in the first line of section 61
after “production contract” of the words “(other than
provisions as to the term of the production contract, the quantities of timber
to be made available by the Commission under it and the prices payable for
such timber)”.
(4) If any of the
State’s softwood plantations or other parts of the Timber Supply Area
are damaged or destroyed by fire, disease or other cause to such an extent
that it is impracticable for the State to comply with the provisions of
subclauses (1) or (2) or if by reason of anything beyond its reasonable
control the State is prevented from complying with those provisions the
Company will have no claim against the State or against the Commission for the
nonfulfilment of their obligations under or as referred to in those provisions
so far as nonfulfilment is due to any such cause.
(5) (a)
Subject to paragraph (c), if during the Term the
Commission or the State is a party to an agreement which provides for the
supply to a third party from the Timber Supply Area of 50,000 cubic metres or
more over a period of 5 or more consecutive years, or 10,000 cubic metres or
more in a 12 month period, of Timber:
(i) meeting the specifications applying to Timber
to be supplied under the Production Contract; and
(ii) to produce, or which the Commission is
reasonably satisfied the third party uses or intends to use to produce, one or
more Timber Products for sale in Western Australia; and
(iii) at delivered prices to the third party more
favourable on the whole to the third party than those under which the Company
will be supplied during the same period under the Production Contract or, if a
Concurrent Contract provides for the supply of Timber of those specifications,
under that Concurrent Contract and for that Timber,
(the quantity of Timber meeting the criteria in subparagraphs (i) and
(ii) above being called the “relevant quantity” , the period of
supply of such Timber being called the “relevant period of supply”
and a contract referred to in subparagraph (iii) above under which the Company
is being supplied on the less favourable delivered prices being called the
“relevant contract” ) the State must ensure that the Commission in
accordance with this subclause (5) makes the more favourable delivered prices
available in respect of the relevant contract on a whole of terms basis to the
Company from the beginning of the relevant period of supply in the case of a
third party agreement that specifies the use of the Timber as being to produce
one or more Timber Products, or in the case of a third party agreement that
does not specify the use of the Timber as being to produce one or more Timber
Products from the time the Commission is reasonably satisfied that the third
party uses or intends to use the Timber to produce one or more Timber
Products, until:
(iv) the expiration or earlier determination of
the relevant period of supply to the third party; or
(v) the expiration or earlier determination of the
relevant contract; or
(vi) the Timber to be supplied to the third party
no longer meets the specifications applying to Timber to be supplied under the
Production Contract,
whichever shall occur first.
The Commission must make the more favourable delivered prices available
on a whole of terms basis by way of discount, during the period the Company is
entitled to such discount, on the delivered prices otherwise applicable during
such period under the relevant contract and for a quantity of Timber up to but
not exceeding in aggregate between all of the relevant contracts, the relevant
quantity.
If the Company is entitled to a discount under both the Production
Contract and a Concurrent Contract such discount will first be made available
to the extent permitted under the Production Contract. The Company is not
entitled to a discount for a quantity of Timber exceeding in aggregate between
the Production Contract and Concurrent Contracts the relevant quantity nor for
Timber not meeting the specifications applying to Timber to be supplied under
the Production Contract. This subclause (5) does not require the Commission to
make available for supply to the Company more Timber than it is otherwise
required to do so under the Production Contract or relevant Concurrent
Contract.
(b)
If the Company believes that there are grounds on
which the Commission may be reasonably satisfied in terms of paragraph
(a)(ii), then the Company may give notice to the Commission specifying those
grounds and requesting the Commission to determine whether or not it is
reasonably satisfied in terms of that paragraph. The State must ensure that
within 90 days after receiving the notice the Commission:
(i) determines whether or not it is reasonably
satisfied in terms of paragraph (a)(ii), having regard to the grounds
specified in the notice and any other relevant information reasonably
available to the Commission at the time the determination is required to be
made; and
(ii) notifies the Company of the determination.
If the Company disputes the Commission’s determination it may
refer their dispute to arbitration under the provisions of the Commercial
Arbitration Act 1985 within 30 days after being notified of the determination.
If no such referral is made the determination will be final.
(c)
Paragraph (a) does not apply:
(i) to an agreement with a third party (whether
entered into before or after the date of this Agreement) for the supply by the
Commission or the State of Timber which is to be sent outside of Western
Australia; or
(ii) to an agreement with a third party (whether
entered into before or after the date of this Agreement) who, in response to a
request for tenders by the Commission (and which request was also open to the
Company to respond to), tendered to be supplied by the Commission with the
Timber the subject of the agreement; or
(iii) to an agreement between the Commission or
the State and a third party who is or becomes a related body corporate (as
defined in the Corporations Act 2001 ) of the Company or who is a director or
secretary of the Company or of a related body corporate of the Company; or
(iv) to any other agreement with a third party
that was entered into before the date of this Agreement unless it is expressly
varied after the date of this Agreement by written agreement between the
Commission or the State as the case may be and the third party to provide for
the supply of Timber at delivered prices to the third party more favourable on
the whole than those under which the third party was previously being supplied
by the Commission or the State as the case may be. The possible application of
paragraph (a) will then be considered on the basis of it being an agreement
for supply of Timber for the remaining term of that agreement and for the
quantity of Timber to be supplied over that remaining term.
Supply of Timber during the Further Term
6. (1)
(a) In this Agreement “Available Future
Timber” means the aggregate quantity (if any) of Specification Timber
that the Commission determines as at 30 June 2027 and in accordance with the
provisions of this definition will be available or is likely to be available
(within the limits of sound silvicultural practice) for supply by the
Commission during the Further Term from the Timber Supply Area in equal (or
nearly as practicable equal) quantities being not less than 1,000 cubic
metres, and not more than the Future Timber Limit, for each Year of the
Further Term after excluding only:
(i)
subject to clauses 10.1(b) - 10.1(e) both inclusive of
the Production Contract, the quantity of Timber the Commission considers would
be required to be made available by the Commission or the State from the
Timber Supply Area during the balance of the Term and during the Further Term
for supply under those of the agreements, renewals, extensions and replacement
agreements referred to in clause 10.1(a)(i) of the Production Contract that
are in force on 30 June 2027 or which at that date are proposed to be entered
into, renewed, extended or replaced (as permitted under the Production
Contract) by the State or by the Commission as the case may be, and on the
basis that if the term of any such agreement then in force or to be entered
into or as renewed, extended or replaced as the case may be (other than the
Production Contract, Concurrent Contracts and agreements referred to in
clauses 10.1(a)(i)E, not being agreements for the supply of Timber over a
period of 5 or more years expiring on or shortly before 30 June 2029,
10.1(a)(i)F, 10.1(a)(i)G, 10.1(a)(i)H or in 10.1(a)(i)J of the Production
Contract which replace those agreements referred to in clauses 10.1(a)E, not
being agreements for the supply of Timber over a period of 5 or more years
expiring on or shortly before 30 June 2029, 10.1(a)(i)F, 10.1(a)(i)G or
10.1(a)(i)H of the Production Contract or are renewals or extensions of such
replacement agreements) would otherwise expire prior to 1 July 2055 the
agreement will for the purpose of the Commission’s determination be
treated as continuing in force until that date for the yearly supply during
that continued term of the aggregate quantity of the Timber that is required
to be made available under it during the last year of its term and from the
supply area applicable at that time; and
(ii)
the quantity of Timber which the Commission would
otherwise have available (within the limits of sound silvicultural practice)
for supply under an agreement, or a renewal, extension or replacement of an
agreement referred to in clause 10.1(a)(i) of the Production Contract but
which comprises Subject Timber (as defined in clause 10.3A of the Production
Contract),
and including Timber referred to in subparagraph (i) of the definition
of Specification Timber in paragraph (b) in priority to the Timber referred to
in subparagraph (ii) of that definition, and the Timber referred to in that
subparagraph (ii) in priority to the Timber referred to in subparagraph (iii)
of that definition.
(b)
In this Agreement:
“Further Term” means the term commencing on 1 July 2029 and
expiring on 30 June 2054;
“Future Timber Limit” means in relation to each Year of the
Further Term:
(i) if
during the Relevant Period the Company purchases under the Production Contract
and Concurrent Contracts not less than 90% (or such other percentage as the
Minister and the Company may agree in writing is appropriate in the
circumstances) of the quantity that is equal to the aggregate of:
A. the quantity of Timber the Commission makes
available for purchase by the Company during the Relevant Period under the
Production Contract and Concurrent Contracts less:
(1) the quantity of Timber that the Commission was
obliged to but did not deliver to the Company during the Relevant Period for
reasons other than the forfeiture of such Timber under the Production Contract
or Concurrent Contracts or the refusal of the Company to accept delivery of
such Timber including on the basis it was excused from doing so under the
force majeure provisions of the Production Contract or a Concurrent Contract
as the case may be; and
(2) the quantity of Timber that under the force
majeure provisions of the Production Contract or the Concurrent Contracts as
the case may be the Commission was excused from its obligation to deliver to
the Company during the Relevant Period: and
B. the quantity of Timber the making available of
which for purchase by the Company under the Production Contract or a
Concurrent Contract or Concurrent Contracts was reduced or suspended by the
Commission for any part or parts of the Relevant Period under clause 23.4 of
the Production Contract or similar provisions of a Concurrent Contract,
250,000 cubic metres; or
(ii) if
subparagraph (i) of this definition does not apply:
A. then a quantity equal to the lesser of 250,000
cubic metres and the aggregate of :
(1) the average Yearly quantity during the
Relevant Period of Timber that the Company purchases under the Production
Contract; and
(2) the average Yearly quantity during the
Relevant Period of Timber that the Company purchases under Concurrent
Contracts; or
B. such greater quantity of Timber (not exceeding
250,000 cubic metres) which the Minister, after consultation with the Company
as to its ability to use such Timber in the Plant’s operations during
the Further Term and consultation with the Commission and having regard to
clause 6(2)(d), may in the Minister’s discretion approve;
“Relevant Period” means the period commencing on 1 July
2022 and expiring on 30 June 2027 or such other period expiring not later than
30 June 2027 as the Minister and the Company may agree in writing is
appropriate in the circumstances; and
“Specification Timber” means:
(i)
Timber meeting the specifications at 30 June 2027 for Timber to be supplied
under the Production Contract; and
(ii) if
during the Relevant Period the Company purchases under a Concurrent Contract
or Concurrent Contracts more than 50,000 cubic metres of Timber of the same
specifications as to age, quality, and dimensions, Timber meeting those
specifications; and
(iii)
Timber (if any) of other specifications which the Minister, after consultation
with the Company as to its ability to use such Timber in the Plant’s
operations during the Further Term and consultation with the Commission and
having regard to clause 6(2)(d), may in the Minister’s discretion
approve for inclusion in the Commission’s determination of Available
Future Timber.
(2) If at 1 July 2027:
(a)
the Company is not in default under this Agreement
or the Production Contract or a Concurrent Contract; and
(b)
the Minister is satisfied that the Company has
spent not less than $1,000,000 per Year (or such lesser amount as the Minister
determines is reasonable in the circumstances) during the period commencing on
1 July 2009 and expiring on 30 June 2027 on planting in the Timber Supply Area
trees of a genus and species suitable for the production of Timber Products to
provide timber for the Plant during the Further Term; and
(c)
the Commission has determined that there is
Available Future Timber during the Further Term,
the State must ensure
that the Commission as soon as practicable after 1 July 2027 enters into
negotiations with the Company for the supply of the Available Future Timber
(or such lesser quantity as is agreed between the Commission and the Company)
to the Company during the Further Term upon reasonable and commercial terms to
be agreed between the Company and the Commission for the purpose of producing
laminated veneer lumber, dry veneer, plywood and I-joists and other allied
products at the Plant. However, their agreement must:
(d)
include the Company’s agreement to process
at the Plant all the Timber (within the limits of sound silvicultural practice
and the Company’s log specifications from time to time for such Timber
to be processed at the Plant) from the Company’s tree planting programme
referred to in recital E; and
(e)
address the extent to which such Timber will be
processed from time to time in priority to, or on a proportionate basis with,
Timber that can be made available by the Commission; and
(f)
include provisions that will allow the Commission
to sell or otherwise dispose of Timber made available to the Company but which
the Company does not purchase; and
(g)
include provisions that will allow the Commission
to reduce the total quantity of Timber to be made available for supply to the
Company during the Further Term if the Company is not purchasing all of the
Timber being made available to it under their agreement while allowing the
Company a reasonable opportunity to increase the quantity it has been
purchasing from the Commission.
Maintenance and upgrading of public roads
7. (1) The State must
maintain or cause to be maintained those public roads under the control of the
Commissioner of Main Roads or a local government, which may be used by the
Company for the purposes of this Agreement to a standard similar to comparable
public roads maintained by the Commissioner of Main Roads or a local
government as the case may be.
(2) (a)
In the event that for or in connection with the
Company’s activities hereunder the Company or any person engaged by the
Company uses or wishes to use a public road (whether referred to in subclause
(1) or otherwise) which is inadequate for the purpose, or any use by the
Company or any person engaged by the Company of any public road results in
excessive damage to or deterioration of such road (other than fair wear and
tear), the Company must pay to the State or the local authority, as the case
may require the whole or an equitable part of the total cost of any upgrading
required or of making good the damage or deterioration as may be reasonably
required by the Commissioner of Main Roads, having regard to the use of such
public road by others.
(b)
It is declared and agreed for the purposes of this
subclause (2) that the Commission supplying Timber to the Site for the
purposes of the Production Contract or a Concurrent Contract is not a person
engaged by the Company referred to in paragraph (a) of this subclause (2).
Transport permits
8. (1) Subject to the
observance of all statutory requirements by the Company, the Commission and
persons carting Timber to the Site for the Company or Commission as the case
may be, those persons will be issued with extra-mass and overlength vehicle
permits or notices or both by the Commissioner of Main Roads appropriate to
road transport routes used by the Company, the Commission or those others
persons aforesaid as the case may be and as may be required to enable the
efficient cartage of Timber to the Site.
(2) Subject to the
observance of all statutory requirements by the Company and persons carting
Timber Products for the Company from the Site to a port, railhead or road
freight delivery point for sending out of Western Australia, those persons
will be issued with extra-mass and overlength vehicle permits or notices or
both by the Commissioner of Main Roads appropriate to road transport routes
used by the Company or those persons aforesaid as the case may be which the
Commissioner of Main Roads reasonably determines are required to enable the
efficient cartage of Timber Products from the Site for the above purpose.
No discriminatory charges
9. Except as provided in this Agreement the State
must not impose, nor shall it permit or authorise any of its agencies or
instrumentalities or any local government or other authority of the State to
impose, discriminatory taxes, rates or charges of any nature whatsoever on or
in respect of the titles, property or other assets, products, materials or
services used or produced by or through the activities of the Company in the
conduct of its business hereunder nor will the State take or permit to be
taken by any such State authority any other discriminatory action which would
deprive the Company of full enjoyment of the rights granted or intended to be
granted under this Agreement.
Zoning
10. (1) The State must
ensure after consultation with the relevant local government that the Site
(and the Additional Area while the Company has the option to purchase it under
the Option Deed and also if it is purchased by the Company as a consequence of
the exercise by the Company of such option) will be and remain zoned for use
or otherwise protected during the currency of this Agreement so that the
activities of the Company hereunder may be undertaken and carried out thereon
without any interference or interruption by the State or by any State agency
or instrumentality or by any local government or other authority of the State
on the ground that such activities are contrary to zoning by-law, regulation
or order.
(2) The State must
ensure that the zoning of the land shown outlined in blue on the plan marked
“A” (excluding the Site and the Additional Area while the Company
has the option to purchase it under the Option Deed and also if it is
purchased by the Company as a consequence of the exercise by the Company of
such option) attached hereto and initialled by or on behalf of the parties on
the date of this Agreement for the purpose of identification shall not be
changed during the currency of this Agreement to a zoning that is determined
by the Minister for Planning after consultation with the Minister and the
relevant local government to be incompatible with or likely to restrict or
adversely affect the activities of the Company hereunder.
Submissions on the Company’s behalf
11. If the Minister in his or her discretion
believes it is reasonable to do so he or she will at the Company’s
request make submissions to any relevant State agency or instrumentality in
respect of applications made by the Company to obtain relief or exemption from
specific legislation or regulations subject to the Company demonstrating to
the Minister’s satisfaction that the Company is making all reasonable
endeavours to comply with the legislation or regulations the subject of the
applications.
Assignment
12. (1) Subject to the
provisions of this clause the Company may at any time with the consent of the
Minister:
(a)
assign, mortgage, charge, sublet or dispose of to
any person the whole or any part of the rights of the Company hereunder
(including its rights to have supplies of Timber made available to it under
the Production Contract or a Concurrent Contract) and of the obligations of
the Company hereunder or the whole or any part of the rights of the Company
under the Contract of Sale or the Option Deed; or
(b)
allow the Site to be used wholly or in part for
purposes other than the activities of the Company under this Agreement,
subject however in the
case of an assignment, subletting or disposition to the assignee, sublessee or
disponee (as the case may be) executing in favour of the State (unless the
Minister otherwise determines) a deed of covenant in a form to be approved by
the Minister to comply with observe and perform the provisions hereof on the
part of the Company to be complied with, observed or performed in regard to
the matter or matters the subject of such assignment, subletting or
disposition.
(2) Notwithstanding
anything contained in or anything done under or pursuant to subclause (1) the
Company will at all times during the currency of this Agreement be and remain
liable for the due and punctual performance and observance of all the
covenants and agreements on its part contained in this Agreement PROVIDED THAT
the Minister may agree to release the Company from such liability where the
Minister considers such release will not be contrary to the interests of the
State.
Variation
13. (1) The parties to
this Agreement may from time to time by agreement in writing add to,
substitute for, cancel or vary all or any of the provisions of this Agreement
for the purpose of more efficiently or satisfactorily implementing or
facilitating any of the objects of this Agreement.
(2) The Minister must
cause any agreement made pursuant to subclause (1) to be laid on the Table of
each House of Parliament within 12 sitting days next following its execution.
(3) Either House may,
within 12 sitting days of that House after the agreement has been laid before
it, pass a resolution disallowing the agreement, but if after the last day on
which the agreement might have been disallowed neither House has passed such a
resolution the agreement shall have effect from and after that last day.
Force majeure
14. This Agreement shall be deemed to be made
subject to any delays in the performance of the obligations under this
Agreement (other than the obligations of the Company under clause 4(1)) and to
the temporary suspension of continuing obligations under this Agreement that
may be caused by or arise from circumstances beyond the power and control of
the party responsible for the performance of those obligations including
(without limiting the generality of the foregoing) delays or any such
temporary suspension as aforesaid caused by or arising from act of God, force
majeure, earthquakes, floods, storms, tempest, washaways, fire (unless caused
by the actual fault or privity of the party responsible for such performance)
act of war, act of public enemies, riots, civil commotions, strikes, lockouts,
stoppages, restraint of labour or other similar acts (whether partial or
general), acts or omissions of the Commonwealth, shortages of labour or
essential materials, reasonable failure to secure contractors, delays of
contractors, inability (common in the Timber Products industry) to sell
profitably Timber Products, factors due to overall world economic conditions
or factors due to action taken by or on behalf of any government or
governmental authority (other than the State or any authority of the State) or
factors that could not reasonably have been foreseen PROVIDED ALWAYS that the
party whose performance of obligations is affected by any of the said causes
must promptly give notice to the other party or parties of the event or events
and shall use its best endeavours to minimise the effects of such causes as
soon as possible after the occurrence.
Power to extend periods
15. Notwithstanding any provision of this
Agreement, the Minister may at the request of the Company from time to time
extend or further extend any period or vary or further vary any date referred
to in this Agreement for such period or to such later date as the Minister
thinks fit, whether or not the period to be extended has expired or the date
to be varied has passed.
Determination of Agreement
16. (1) If:
(a) (i)
the Company makes default which the State considers
material in the due performance or observance of any of the covenants or
obligations of the Company in this Agreement or in the Production Contract or
in a Concurrent Contract; or
(ii)
the Company abandons or repudiates this Agreement or the
Production Contract or a Concurrent Contract or abandons or repudiates its
activities under this Agreement or under the Production Contract or under a
Concurrent Contract,
and such matter is not remedied within a period of
180 days after notice is given by the State as provided in subclause (2) or if
the matter is referred to arbitration, then within the period mentioned in
subclause (3); or
(b) the Company goes into liquidation (other than
a voluntary liquidation for the purpose of reconstruction) and unless within 3
months from the date of such liquidation the interest of the Company is
assigned to an assignee approved by the Minister under clause 12; or
(c) the Company does not complete its purchase of
the Site under the Contract of Sale; or
(d) the Production Contract or a Concurrent
Contract is terminated by the Commission in accordance with its provisions
before its agreed expiration date; or
(e) the Company allows the Site to be used wholly
or in part other than for the purpose of the Company’s activities under
this Agreement without the consent of the Minister under clause 12; or
(f) the Company at any time ceases to operate the
Plant for a continuous period of more than 12 months without the consent of
the Minister,
the State may by notice to the Company determine this Agreement.
(2) The notice to be
given by the State to the Company in terms of subclause (1)(a) must specify
the nature of the default or other ground so entitling the State to exercise
such right of determination.
(3) (a)
If the Company contests the alleged default or
other ground referred to in subclause (1)(a) the Company shall within 60 days
after notice given by the State as provided in subclause (2) refer the matter
in dispute to arbitration.
(b)
If the question is decided against the Company,
the Company must comply with the arbitration award within a reasonable time to
be fixed by that award PROVIDED THAT if the arbitrator finds that there was a
bona fide dispute and that the Company was not dilatory in pursuing the
arbitration, the time for compliance with the arbitration award shall not be
less than 90 days from the date of such award.
(4) If the default
referred to in subclause (1)(a) has not been remedied within a period of 180
days after receipt of the notice referred to in that subclause or within the
time fixed by the arbitration award as aforesaid the State instead of
determining this Agreement as aforesaid because of such default may itself
remedy such default or cause the same to be remedied (for which purpose the
State by agents workmen or otherwise shall have full power to enter upon lands
occupied by the Company and to make use of all plant, machinery, equipment and
installations thereon) and the actual costs and expenses incurred by the State
in remedying or causing to be remedied such default shall be a debt payable by
the Company to the State on demand.
Effect of cessation or determination of Agreement
17. On the cessation or determination of this
Agreement:
(a)
except as otherwise agreed by the Minister the rights of the Company to, in or
under this Agreement shall thereupon cease and determine but without prejudice
to the liability of any of the parties hereto in respect of any antecedent
breach or default under this Agreement or in respect of any guarantee or
indemnity given under this Agreement;
(b) the
Company and the Guarantor shall forthwith pay to the State all money which may
then have become payable or accrued due; and
(c) save
as aforesaid and as otherwise provided in this Agreement or in the Contract of
Sale or Option Deed or in the Production Contract or a Concurrent Contract
none of the parties shall have any claim against the other of them with
respect to any matter or thing in or arising out of this Agreement.
Indemnity
18. The Company must indemnify and keep
indemnified the State and its servants agents and contractors in respect of
all actions suits claims demands or costs of third parties arising out of or
in connection with any work carried out by or on behalf of the Company
pursuant to this Agreement or relating to its activities hereunder or arising
out of or in connection with the construction maintenance or use by the
Company or its servants agents contractors or assignees of the Company’s
works or services the subject of this Agreement or the plant apparatus or
equipment installed in connection therewith PROVIDED THAT subject to the
provisions of any relevant Act such indemnity will not apply in circumstances
where the State, its servants, agents, or contractors are negligent in
carrying out work for the Company pursuant to this Agreement.
Subcontracting
19. Without affecting the liabilities of the
parties under this Agreement both the State and the Company will have the
right from time to time to entrust to third parties the carrying out of any
portions of the activities which it is authorised or obliged to carry out
hereunder.
Arbitration
20. (1) Any dispute or
difference between the State and the Company arising out of or in connection
with this Agreement, the construction of this Agreement or as to the rights
duties or liabilities of either of them under this Agreement or as to any
matter to be agreed upon between them under this Agreement must, in default of
agreement between them and in the absence of any provision in this Agreement
to the contrary, be referred to and settled by arbitration under the
provisions of the Commercial Arbitration Act 1985 and each party may be
represented before the arbitrator by a duly qualified legal practitioner or
other representative.
(2) Except where
otherwise provided in this Agreement, the provisions of this clause will not
apply to any case where the State, the Minister or any other Minister in the
Government of the State is by this Agreement given either expressly or
impliedly a discretionary power.
(3) The arbitrator of
any submission to arbitration under this Agreement is hereby empowered upon
the application of either the State or the Company, to grant in the name of
the Minister any interim extension of any period or variation of any date
referred to herein which having regard to the circumstances may reasonably be
required in order to preserve the rights of that party or of the parties to
the arbitration and an award may in the name of the Minister grant any further
extension or variation for that purpose.
Consultation
21. (1) The Company
must during the currency of this Agreement consult with and keep the State
fully informed on a confidential basis concerning any action that the Company
proposes to take with any third party (including the Commonwealth or any
Commonwealth constituted agency, authority, instrumentality or other body)
which might significantly affect the overall interest of the State under this
Agreement.
(2) During the
currency of this Agreement the Company will notify the Minister of any
non-compliance by the Commission with clause 10 of the Production Contract
that the Company considers may have occurred as soon as practicable after the
Company becomes aware of it.
Notices
22. Any notice consent or other writing authorised
or required by this Agreement to be given or sent by the State to the Company
or to the Guarantor will be deemed to have been duly given or sent if signed
by the Minister or by any senior officer of the Public Service of the State
acting by the direction of the Minister and forwarded by prepaid post or
handed to the Company or to the Guarantor as the case may be at its address
hereinbefore set forth or other address in Western Australia nominated by the
Company, or by the Guarantor as the case may be, to the Minister and by the
Company or by the Guarantor to the State if signed on its behalf by any person
or persons authorised by the Company or by its solicitors, or by the Guarantor
or by its solicitors as the case may be, as notified to the State from time to
time and forwarded by prepaid post or handed to the Minister and except in the
case of personal service any such notice consent or writing shall be deemed to
have been duly given or sent on the day on which it would be delivered in the
ordinary course of post.
Guarantee of the Company’s performance
23. Notwithstanding any addition to or deletion or
variation of the provisions of this Agreement or any time or other indulgence
granted by the State or by the Minister to the Company whether or not notice
thereof is given to the Guarantor by the State, the Guarantor hereby
guarantees to the State the due performance by the Company of all of the
Company’s obligations to be performed hereunder and under the Contract
of Sale, the Production Contract and all Concurrent Contracts.
Term of Agreement
24. (1) Unless sooner
determined in accordance with the provisions hereof this Agreement will expire
on 30 June 2029.
(2) The parties will
confer 10 years after ratification of this Agreement and 10 years thereafter
on the Company’s intentions with respect to the continuance of the
Plant’s operations and the Company’s likely Timber requirements
for the Plant.
New agreement with the State
25. (1) Provided that
the Company is not then in default under this Agreement or under the
Production Contract or under a Concurrent Contract and the State is reasonably
satisfied that a further agreement with the State is required to assure to the
Company the supply to the Company of Timber to be supplied to the Company
during the Further Term in accordance with clause 6, the State will not later
than 18 months prior to the expiration of the Term enter into negotiations
with the Company for that purpose.
(2) If a new agreement
with the State is entered into the State must when it is entered into
introduce and sponsor a Bill in the Parliament of the State of Western
Australia to ratify the execution on behalf of the State of the new agreement.
Stamp duty
26. The State will exempt:
(a) this
Agreement; and
(b) the
Contract of Sale; and
(c) the
Production Contract; and
(d)
Concurrent Contracts entered into within 2 years after the Commencement Date,
from stamp duty which, but for the operation of this clause, would or might be
assessed as chargeable on them provided that this clause shall not apply to
any liability to stamp duty arising under the Production Contract or a
Concurrent Contract more than 2 years after the Commencement Date.
Applicable law
27. This Agreement is to be interpreted according
to the law for the time being in force in the State of Western Australia.
IN WITNESS WHEREOF this Agreement has been executed by or on behalf of the
parties hereto the day and year first hereinbefore mentioned.
|
SIGNED by the HONOURABLE DR. GEOFFREY IAN GALLOP in the presence of: |
} |
|
CLIVE
BROWN
Name:
|
THE COMMON SEAL of WESBEAM PTY LTD ACN 004 268 017 was hereunto affixed in
accordance with its constitution in the presence of: |
} |
|
Director:
DENIS
CULLITY
Name:
Director/Secretary: J
MALONE
Name:
|
THE COMMON SEAL of WESBEAM HOLDINGS LIMITED ACN 095 594 826 was hereunto
affixed in accordance with its constitution in the presence of: |
} |
|
Director:
DENIS
CULLITY
Name:
Director/ Secretary :
J
MALONE
Name:
“A” 
