GENESEE & WYOMING INC (Form: 8-K, Received: 12/01/2016 16:32:35)

Genesee & Wyoming Inc.

Date: December 1, 2016

/s/ Allison M. Fergus

Allison M. Fergus

General Counsel and Secretary

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 or 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

Date of report (Date of earliest event reported): November 28, 2016

Genesee & Wyoming Inc.

(Exact Name of Registrant as Specified in Charter)


Delaware	001-31456	06-0984624
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(IRS Employer Identification No.)

20 West Avenue Darien, Connecticut		06820
(Address of Principal Executive Offices)		(Zip Code)

Registrant’s telephone number, including area code: (203) 202-8900

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 1.01.

Entry Into a Material Definitive Agreement .

Amended and Restated Partnership Investment Agreement

On November 30, 2016, Genesee & Wyoming Inc., a Delaware corporation (“ G&W ”), and the members of a Macquarie Infrastructure and Real Assets consortium (“ MIRA ”) entered into an Amendment and Restatement Deed (the “ Amendment ”) pursuant to which G&W and MIRA agreed to amend and restate the Partnership Investment Agreement dated October 14, 2016, as amended on October 20, 2016 (as amended and restated, the “ PIA ”), the final form of which is attached to the Amendment. Under the PIA, MIRA contributed A$644 million (US$477 million at current exchange rates) in cash in the form of equity contributions and partner loans to G&W Australia Holdings LP (the “ Partnership ”), an existing partnership that was wholly-owned by G&W immediately prior to MIRA’s equity contributions and partner loans (the “ Partnership Transaction ”).

Following the completion of the Partnership Transaction on December 1, 2016, the Partnership is 51.1% owned by G&W and 48.9% owned by MIRA (collectively, the “ Partners ”), and, following the closing of the GRail Transaction (as defined and described herein), owns G&W’s existing Australian business and Glencore Rail (NSW) Pty Limited (“ GRail ”). G&W will consolidate 100% of the Partnership in its financial statements and will record a non-controlling interest for MIRA’s 48.9% equity ownership. In accordance with the terms of an Amended and Restated Partnership Agreement, the agreed form of which is attached to the PIA as a schedule (the “ Partnership Agreement ”), the Partnership will be governed by a management committee, which will contain representatives appointed by both MIRA and G&W general partners. Certain matters will require approval by both Partners, in general these include: (i) hiring and firing of select executives of the Partnership; (ii) commitments relating to significant contracts or other matters; (iii) approval of the Partnership’s strategic plan, which is a long-term plan outlining the expectations of the Partners for the business (including leverage, equity returns and capitalization); (iv) mergers or consolidations; (v) incurrence of material indebtedness; (vi) capital structure changes; (vii) changes to the distribution policy; and (viii) related-party transactions. The Partners also have agreed to certain customary exit rights with respect to their interests in the Partnership.

The foregoing description of the Amendment, the PIA and the Partnership Agreement and the transactions contemplated thereby does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Amendment, the PIA and the Partnership Agreement, each of which is attached hereto as Exhibit 10.1 and incorporated herein by reference.

Syndicated Facility Agreement

On November 28, 2016, and in anticipation of the completion of the Partnership Transaction and the GRail Transaction, G&W’s recently established subsidiary, GWI Acquisitions Pty Ltd (“ GWIA ”), entered into a syndicated facility agreement (the “ Syndicated Facility Agreement ”) with the other obligors thereto, National Australia Bank Limited, as agent (the “ Agent ”), and Australia and New Zealand Banking Group Limited, Bank of America, N.A. Australian Branch, BNP Paribas, Citibank, N.A. Sydney Branch, Commonwealth Bank of Australia, JPMorgan Chase Bank, N.A., Sumitomo Mitsui Banking Corporation and The Bank of Tokyo-Mitsubishi UFJ, Ltd. (such lenders together with the Agent, the “ Lenders ”), pursuant to which the Lenders provided to GWIA A$690 million (US$511 million at current exchange rates) in senior secured term loan facilities (the “ Term Loan Facilities ”) and A$50 million (US$37 million at current exchange rates) in the form of a revolving loan facility (the “ Revolving Credit Facility ” and, together with the Term Loan Facilities, the “ Credit Facilities ”). The Term Loan Facilities comprise a A$130 million (US$96 million at current exchange rates) amortizing tranche (“ Tranche A1 ”) and a A$560 million (US$414 million at current exchange rates) tranche repayable on the maturity date (“ Tranche A2 ”).

The maturity date of the Credit Facilities (the “ Maturity Date ”) is December 1, 2021, or such earlier date as the obligations under the Credit Facilities become due and payable pursuant to the terms of the Syndicated Facility Agreement.

Interest Rate and Fees under the Syndicated Facility Agreement

The interest rate per annum applicable to the loans under the Syndicated Facility Agreement for a relevant interest period will be the sum of the applicable margin and a fluctuating rate of interest determined by reference to: (i) the applicable screen rate displayed at or about 10:30 a.m. (Sydney time) on the first day on an interest period on the page BBSY of the Thompson Reuters screen (or such replacement that displays that rate); or (ii) if the rate in (i) is not available, the sum of (a) the rate displayed on the page BBSW of the Thompson Reuters screen and (b) 0.05% per annum; or (iii) if no rate under (i) or (ii) is available, the interpolated screen rate for the longest period less than the relevant interest period for the loan and the shortest period which exceeds the relevant interest period for the loan; or (iv) where the rate cannot be determined under (i), (ii) and (iii), the arithmetic mean of the rates provided by Australia and New Zealand Banking Group Limited, Commonwealth Bank of Australia, National Australia Bank Limited and Westpac Banking Corporation as reference banks, plus 0.05% per annum.

The applicable margin for the loans under the Credit Facilities will initially be (i) 2.70% per annum (for Tranche A1 and the Revolving Credit Facility) and 2.80% per annum (for Tranche A2). Following the delivery of GWIA’s first compliance certificate after the effective date in accordance with the terms of the Syndicated Facility Agreement, the applicable margin will range from 2.35% per annum to 3.65% per annum (in respect of Tranche A1 and the Revolving Credit Facility) and 2.45% per annum to 3.75% per annum (for Tranche A2), depending upon the total leverage ratio of GWIA and the obligors under the Syndicated Facility Agreement.

In addition to paying interest on outstanding principal under the Credit Facilities, GWIA will be required to pay a commitment fee in respect of the unutilized portion of the commitments under the Revolving Credit Facility. The commitment fee rate will initially be 45% of the applicable margin from time to time under the facility to which the unutilized portion of the commitments relate. GWIA will also pay customary letter of credit and agency fees.

Prepayments

GWIA may voluntarily prepay outstanding loans under the Credit Facilities, in whole or in part, at any time without penalty or premium, subject to customary “breakage” costs with respect to prepayments of loans on a day other than the last day of any applicable interest period.

In limited circumstances, GWIA may be required to repay all or a portion of outstanding loans under the Term Loan Facilities, including following certain sales, dispositions, receipt of certain insurance proceeds or issuances or incurrences of new indebtedness to refinance existing indebtedness.

Amortization – Tranche A1

The loans under Tranche A1 will amortize in quarterly installment amounts of approximately A$4.5 million (US$3.3 million at current exchange rates) to A$5.4 million (US$4.0 million at current exchange rates) for each calendar quarter commencing on March 31, 2017 to December 31, 2019 (inclusive), and thereafter until the Maturity Date, quarterly installment amounts of approximately A$8.6 million (US$6.3 million at current exchange rates). All amounts which remain outstanding on the Maturity Date must be repaid on the Maturity Date.

Guaranty and Security

In connection with the Credit Facilities, GWIA and certain obligors (the “ Guarantors ”), subject to certain exceptions and grace periods, have guaranteed and granted security interests over substantially all of their assets to guarantee and secure amounts borrowed under the Credit Facilities.

Pursuant to the Security Documents, amounts borrowed under the Credit Facilities and any other amounts owing under the finance documents (including hedge agreements) are secured on a first priority basis by a perfected security interest over substantially all of the tangible and intangible assets (subject to certain exceptions) of GWIA and the Guarantors, including the capital stock of each of GWIA’s direct and indirect wholly-owned material subsidiaries.

Certain Covenants and Events of Default

The Syndicated Facility Agreement contains a number of customary affirmative and negative covenants that, among other things, limit or restrict the ability of GWIA and the Guarantors, subject to certain exceptions, to: incur additional indebtedness; create liens; make investments; pay dividends on capital stock or redeem, repurchase or retire capital stock; consolidate or merge; enter into sale and leaseback transactions; change the business conducted by GWIA and the Guarantors; sell capital stock of certain Guarantors; enter into certain agreements or make amendments to certain agreements; and engage in certain transactions with affiliates. In addition, under the Syndicated Facility Agreement, GWIA is subject to specified maximum total leverage ratios and specified minimum debt service coverage ratios.

The Syndicated Facility Agreement contains customary events of default which apply to GWIA and certain obligors, including nonpayment of principal, interest, fees or other amounts; violation of certain covenants (including the financial covenants in the preceding paragraph); material inaccuracy of a representation or warranty when made; cross-default to other indebtedness; the occurrence of certain bankruptcy or insolvency events; material unsatisfied judgments; actual or asserted invalidity or the repudiation of any finance document in connection with the Credit Facilities; appropriation by a government agency of material business property of a Guarantor; and the occurrence of certain events which would have a “material adverse effect”.

Certain events of default are subject to customary remedy periods and the violation of certain financial covenants referred to above is subject to cure rights.

Other

The Lenders and certain of each of their affiliates may have engaged in, and may in the future engage in, investment banking and other commercial dealings in the ordinary course of business with us or our affiliates. They have received, or may in the future receive, customary fees and commissions for these transactions.

The foregoing description of the Syndicated Facility Agreement and the transactions contemplated thereby does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Syndicated Facility Agreement, which is attached hereto as Exhibit 10.2 and incorporated herein by reference.

Item 2.01

Completion of Acquisition or Disposition of Assets .

On December 1, 2016, GWIA completed the previously-announced acquisition of 100% of the issued share capital of GRail for cash consideration of A$1.14 billion (US$844 million at current exchange rates) (the “ GRail Transaction ”), from Glencore Coal Pty Limited (the “ Seller ”), pursuant to the terms of the Share Sale Agreement, dated October 20, 2016, by and among G&W, GWIA, the Seller and Glencore Operations Australia Pty Limited. Upon consummation of the GRail Transaction, GRail is wholly-owned by the Partnership.

The aggregate purchase price paid for GRail was funded by new equity and partner loan financing received in connection with the Partnership Transaction, debt financing under the Syndicated Facility Agreement and available cash from G&W’s balance sheet contributed as a partner loan.

Item 2.03

Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of a Registrant .

The information set forth in Item 1.01 of this Current Report on Form 8-K under the heading “Syndicated Facility Agreement” is incorporated by reference in this Item 2.03.

Item 7.01

Regulation FD Disclosure .

A copy of the press release announcing the closing of the GRail Transaction and the Partnership Transaction is attached hereto as Exhibit 99.1 and is incorporated herein by reference.

The information contained in this Item 7.01 and in the accompanying Exhibit 99.1 shall not be deemed filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or incorporated by reference in any filing under the Exchange Act or the Securities Act of 1933, as amended, except as shall be expressly set forth by specific reference in such filing.

Section 9 Financial Statements and Exhibits

Item 9.01

Financial Statements and Exhibits .

(d) Exhibits.

The following exhibits are filed herewith:


Exhibit		Description

10.1		Amendment and Restatement Deed, dated November 30, 2016, by and among Genesee & Wyoming Inc. and the members of a Macquarie Infrastructure and Real Assets consortium.*

10.2		Syndicated Facility Agreement, dated November 28, 2016, among GWI Acquisitions Pty Ltd, the obligors party thereto, National Australia Bank Limited, as agent and lender, and Australia and New Zealand Banking Group Limited, Bank of America, N.A. Australian Branch, BNP Paribas, Citibank, N.A. Sydney Branch, Commonwealth Bank of Australia, JPMorgan Chase Bank, N.A., Sumitomo Mitsui Banking Corporation and The Bank of Tokyo-Mitsubishi UFJ, Ltd., as lenders

99.1		Press release, dated December 1, 2016, announcing the completion of the acquisition of Glencore Rail (NSW) Pty Ltd.

*	Certain schedules to this agreement have been omitted pursuant to Item 601(b)(2) of Regulation S-K. G&W agrees to furnish supplementally a copy of such schedule, or any section thereof, to the Securities and Exchange Commission upon request.

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

INDEX OF EXHIBITS


Exhibit		Description

10.1		Amendment and Restatement Deed, dated November 30, 2016, by and among Genesee & Wyoming Inc. and the members of a Macquarie Infrastructure and Real Assets consortium.

10.2		Syndicated Facility Agreement, dated November 28, 2016, among GWI Acquisitions Pty Ltd, the obligors party thereto, National Australia Bank Limited, as agent and lender, and Australia and New Zealand Banking Group Limited, Bank of America, N.A. Australian Branch, BNP Paribas, Citibank, N.A. Sydney Branch, Commonwealth Bank of Australia, JPMorgan Chase Bank, N.A., Sumitomo Mitsui Banking Corporation and The Bank of Tokyo-Mitsubishi UFJ, Ltd., as lenders

99.1		Press release, dated December 1, 2016, announcing the completion of the acquisition of Glencore Rail (NSW) Pty Ltd.

Exhibit 10.1

LOGO

Genesee & Wyoming Inc.

Macquarie Specialised Asset Management Limited as trustee for the MAIF Investment Trust

Macquarie Australian Infrastructure Management 1 Limited as trustee for the Macquarie Australian Infrastructure Trust 1

Scissor Holdings Pty Limited

Stichting Depositary PGGM Infrastructure Funds, acting in its capacity as title holder of PGGM Infrastructure Fund 2016 and herein represented by PGGM Vermogensbeheer B.V. as its attorney in fact

Amendment and Restatement Deed

Amendment and restatement of the Partnership Investment Agreement dated 14 October 2016 as amended on

20 October 2016

The Allens contact for this document is Tracey Davern

Deutsche Bank Place

Corner Hunter and Phillip Streets

Sydney NSW 2000 Australia

T +61 2 9230 4000

F +61 2 9230 5333

www.allens.com.au

Allens is an independent partnership operating in alliance with Linklaters LLP.


Amendment and Restatement Deed


Contents

1	Definitions and Interpretation	1

2	Amendment and Restatement of Partnership Investment Agreement	1

3	PGGM LP	2

4	Counterparts	2

5	Governing Law and Jurisdiction	2

Schedule		3
	Amended Partnership Investment Agreement	3

page (i)


Amendment and Restatement Deed

This Deed is made on 30 November 2016

Parties

1	Genesee & Wyoming Inc. of 20 West Avenue, Darien, Connecticut 06820 United States of America ( *GWI* ).

2	Macquarie Specialised Asset Management Limited (ACN 087 382 965) as trustee for the MAIF Investment Trust (ABN 56 501 013 400) of Level 6, 50 Martin Place, Sydney, New South Wales, 2000 ( *MAIF LP* ).

3	Macquarie Australian Infrastructure Management 1 Limited (ACN 077 595 012) as trustee for the Macquarie Australian Infrastructure Trust 1 (ABN 34 678 914 659) of Level 6, 50 Martin Place, Sydney, New South Wales, 2000 ( *MAIT LP* ).

4	Scissor Holdings Pty Ltd (ACN 614 520 302) of Level 7, 50 Martin Place, Sydney, New South Wales, 2000 ( *MIRA GP* ).

5	Stichting Depositary PGGM Infrastructure Funds, acting in its capacity as title holder of PGGM Infrastructure Fund 2016 and herein represented by PGGM Vermogensbeheer B.V. as its attorney in fact of Noordweg Noord 150, 3705 JG Zeist, The Netherlands ( *PGGM LP* ).

Recitals

A	GWI, MAIF LP, MAIT LP, MIRA GP and PGGM LP (each a *Party* ) are parties to a Partnership Investment Agreement dated 14 October 2016 and which was amended by the Parties on 20 October 2016.

B	On 24 November 2016:

MAIT LP nominated Macquarie Australian Infrastructure Management 1 Limited (ABN 18 077 595 012) in its capacity as trustee for the Scissor Holdings Trust (ABN 60 744 504 418) as its Nominee for the purposes of clause 5.3 of the Partnership Investment Agreement; and

PGGM LP nominated Macquarie Australian Infrastructure Management 1 Limited (ABN 18 77595 012) in its capacity as trustee for the PGGM Ibis LP Trust (ABN 88 741 842 754) as its Nominee for the purposes of clause 5.3 of the Partnership Investment Agreement.

C	The Parties wish to amend and restate the Partnership Investment Agreement in the manner set out in this Deed.

It is agreed as follows.

1	Definitions and Interpretation

(a)

Words which are defined in the Partnership Investment Agreement have the same meaning in this Deed as in the Partnership Investment Agreement unless the context requires otherwise.

(b)

Clauses 1 and 15 of the Partnership Investment Agreement form part of this Deed as if set out at length in this Deed.

(c)

References to this Deed include the Schedule to this Deed.

2	Amendment and Restatement of Partnership Investment Agreement

(a)

The Parties agree that, effective on and from the date of this Deed, the Partnership Investment Agreement is amended and restated as set out in the Schedule to this Deed.

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Amendment and Restatement Deed

(b)

For the avoidance of doubt, references to ‘the date of this Agreement’ in the Partnership Investment Agreement as amended and restated in the Schedule to this Deed are references to 14 October 2016.

3	PGGM LP

As PGGM Infrastructure Fund 2016 is not a partnership (personenvennootschap) nor a legal entity (rechtspersoon) under Dutch law, any claims against the PGGM Infrastructure Fund 2016 and / or Stichting Depositary PGGM Infrastructure Funds are against Stichting Depositary PGGM Infrastructure Funds as such, and not against the participants in the PGGM Infrastructure Fund 2016 who, accordingly, are not liable for these claims. Recourse for such claims shall be limited to the assets held by Stichting Depositary PGGM Infrastructure Funds on behalf of the PGGM Infrastructure Fund 2016.

4	Counterparts

This Deed may be executed in any number of counterparts. All counterparts together will be taken to constitute one instrument.

5	Governing Law and Jurisdiction

This Deed is governed by the laws of South Australia. In relation to it and related non-contractual matters each Party irrevocably submits to the non-exclusive jurisdiction of courts with jurisdiction there, and waives any right to object to the venue on any ground.

page 2


Amendment and Restatement Deed

Schedule

Amended Partnership Investment Agreement

page 3

LOGO

Genesee & Wyoming Inc.

Macquarie Specialised Asset Management Limited as trustee for the MAIF Investment Trust

Macquarie Australian Infrastructure Management 1 Limited as trustee for the Macquarie Australian Infrastructure Trust 1

Scissor Holdings Pty Limited

Stichting Depositary PGGM Infrastructure Funds, acting in its capacity as title holder of PGGM Infrastructure Fund 2016

Partnership Investment Agreement

Deutsche Bank Place

Corner Hunter and Phillip Streets

Sydney NSW 2000 Australia

T +61 2 9230 4000

F +61 2 9230 5333

www.allens.com.au

Allens is an independent partnership operating in alliance with Linklaters LLP.


Partnership Investment Agreement


Contents

1	Definitions and Interpretation		1
	1.1	Definitions	1
	1.2	Interpretation	8
	1.3	Consents or approvals	9
	1.4	Best endeavours or reasonable endeavours	9
	1.5	Method of payment	9
	1.6	No-deduction or set off	10
	1.7	Interest on amounts payable	10
	1.8	Knowledge as to GWI Warranties	10

2	Transaction Overview		10

3	Conditions Precedent to Partnership Transaction		11
	3.1	Conditions Precedent	11
	3.2	Parties must co-operate	11
	3.3	Specific obligations of co-operation	11
	3.4	Waiver	12
	3.5	Termination before Completion	12
	3.6	Effect of termination	13

4	GRail Bid		13
	4.1	Submission of the Final GRail Bid Package	13
	4.2	Discussions with Glencore	13
	4.3	Finalisation of GRail Bid and the terms of the GRail Transaction	14
	4.4	Finalisation of documents	14
	4.5	Other matters	14

5	Partnership Transaction		15
	5.1	Partnership Transaction Steps	15
	5.2	Nomination by a Co-Investor Party	16

6	Obligations Prior to Completion Date		16
	6.1	GWI’s obligations	16
	6.2	Factors relevant to GWI’s obligations	17
	6.3	Information and access	17
	6.4	Conditions of access	17
	6.5	Check the Box Elections	17
	6.6	Debt financing	18

7	Completion of Partnership Transaction		18
	7.1	Notice of representatives	18
	7.2	Completion place	18
	7.3	Obligations of GWI on Completion	18
	7.4	Obligations of the Co-Investor Parties on Completion	19
	7.5	Completion Funding Steps	19
	7.6	Actions at Completion	19
	7.7	Notice to complete	19
	7.8	Remedies for failure to comply with notice	19

8	Completion Working Capital Adjustment		20
	8.1	Purpose of the Working Capital Adjustment	20
	8.2	Draft Completion Working Capital Statement	20
	8.3	Report by Co-Investor Parties	20

page (i)


Partnership Investment Agreement


	8.4	Agreement or failure by Co-Investor Parties to report	20
	8.5	Dispute resolution procedure	20
	8.6	Adjustment Amount	22
	8.7	Payment Date	22

9	GWI Warranties		23
	9.1	GWI Warranties	23
	9.2	Other warranties and conditions excluded	23
	9.3	When warranties given	23
	9.4	Notification	23

10	Qualifications and Limitations on Claims		23
	10.1	Disclosures	23
	10.2	Liability caps and thresholds	24
	10.3	Claims and conditions of payment	25
	10.4	Co-Investor Parties’ acknowledgments	26
	10.5	Release	27
	10.6	Mitigation of Liability	28
	10.7	Statutory actions	28
	10.8	Proceedings in respect of a Claim	28
	10.9	Insurance and recovery under any other right	28
	10.10	Remedies for breach of warranties	29
	10.11	No Liability where breach	29
	10.12	Independent limitations	29
	10.13	Fraud	29
	10.14	Reduction of the Partnership Contribution Amount	29
	10.15	Benefit of Clause 10	29

11	Tax indemnity		30
	11.1	Tax indemnity	30

12	Co-Investor Party Warranties		30
	12.1	Co-Investor Party Warranties	30
	12.2	Continued operation	30

13	Confidentiality		30
	13.1	Confidentiality	30
	13.2	Permitted disclosure	31
	13.3	Survival of obligation	31

14	GST		31
	14.1	Definitions	31
	14.2	Recovery of GST	31
	14.3	Liability net of GST	32
	14.4	Adjustment events	32
	14.5	Survival	32

15	General		32
	15.1	Limitation of liability of the Trustees	32
	15.2	Claims against PGGM LP	33
	15.3	Entire agreement	33
	15.4	Governing law	33
	15.5	Amendment	33
	15.6	Costs and duty	33

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Partnership Investment Agreement


	15.7	Remedies Cumulative	34
	15.8	Notices	34
	15.9	No Merger	36
	15.10	Assignment	36
	15.11	Further Assurances	36
	15.12	No Waiver	36
	15.13	Service of process	36
	15.14	Severability of Provisions	36
	15.15	Counterparts	37

Schedule 1			1
	GWA Group		1

Schedule 2			2
	GWI Warranties		2

Schedule 3			10
	Co-Investor Party Warranties		10

Schedule 4			12
	Amended and Restated Partnership Agreement		12

Schedule 5			13
	Plant and Equipment		13
	(as at 30 September 2016)		13

Schedule 6			17
	Restructuring Steps		17

1	CP Restructuring Steps		17

2	Completion Funding Steps		19

Schedule 7			21
	Rail Accreditations		27

Schedule 8			28
	Accounting Principles		28

Schedule 9			29
	Data Room Index		29

Schedule 10			70
	Partnership Loan Term Sheet		70

Schedule 11			72
	Reference Working Capital Statement		72

Schedule 12			77
	Services Agreement		77

page (iii)


Partnership Investment Agreement

This Agreement is made on November 2016

Parties

1	Genesee & Wyoming Inc. of 20 West Avenue, Darien, Connecticut 06820 United States of America ( *GWI* ).

2	Macquarie Specialised Asset Management Limited (ACN 087 382 965) as trustee for the MAIF Investment Trust of Level 6, 50 Martin Place, Sydney, New South Wales, 2000 ( *MAIF LP* ).

3	Macquarie Australian Infrastructure Management 1 Limited (ABN 18 077 595 012) as trustee for the Macquarie Australian Infrastructure Trust 1 of Level 6, 50 Martin Place, Sydney, New South Wales, 2000 ( *MAIT LP* ).

4	Scissor Holdings Pty Ltd (ACN 614 520 302) of Level 7, 50 Martin Place, Sydney, New South Wales, 2000 ( *MIRA GP* ).

5	Stichting Depositary PGGM Infrastructure Funds, acting in its capacity as title holder of PGGM Infrastructure Fund 2016 and herein represented by PGGM Vermogensbeheer B.V. as its attorney in fact of Noordweg Noord 150, 3705 JG Zeist, The Netherlands ( *PGGM LP* ).

Recitals

A	The GWA Group carries on certain below rail infrastructure and above rail haulage businesses in Australia.

B	The GWA Partnership owns, directly or indirectly, all of the shares in the members of the GWA Group (other than Freightliner Australia Pty Limited and its wholly owned subsidiaries which are 91.4% indirectly owned by the GWA Partnership).

C	Glencore is running a competitive sale process for the sale of all of the shares in GRail. GRail carries on a coal rail haulage business in the Hunter Valley in New South Wales, Australia.

D	GWI and the Co-Investor Parties intend to procure the submission of a final binding bid to purchase all of the shares in GRail from Glencore ( *GRail Bid* ).

E	If the GRail Bid is accepted by Glencore, the Co-Investor Parties shall invest in the GWA Partnership in accordance with the terms of this Agreement.

It is agreed as follows.

1	Definitions and Interpretation

1.1

Definitions

The following definitions apply unless the context requires otherwise.

2015 Accounts means the unaudited consolidated management accounts for the GWA Group for the year ended 31 December 2015.

2015 Audited Accounts means the audited special purpose financial reports for GWIH2, GWA (North) Pty Ltd, GWI Holdings Pty Ltd, Genesee & Wyoming Australia Pty Ltd, Freightliner Australia Pty Limited, FLA Coal Services Pty Limited and Freightliner Australia Coal Haulage Pty Ltd for the year ended 31 December 2015.

2016 Accounts means the unaudited monthly management accounts for the GWA Group for the period ended 30 June 2016.

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Partnership Investment Agreement

Aboriginal Land Rights Claim means any claim or application under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), whether successful or not.

Accession Deed means the accession deed in the form agreed between the parties and PGGM LP.

Accounting Principles means the principles and methodology to be applied in preparing the Completion Working Capital Statement, as set out in Schedule 8.

Accounting Standards means the Australian Accounting Standards and any authoritative interpretations issued by the Australian Accounting Standards Board.

Adjustment Amount means the payment to be made to GWI or to the Co-Investor Parties (or their Nominees) (as applicable) under clause 8.6, as increased pursuant to clause 8.7(b).

Anti-Corruption Laws means:

(a)

Division 70 of the Schedule to the Criminal Code Act 1995 (Cth);

(b)

the Foreign Corrupt Practices Act of 1997 of the United States of America;

(c)

the Bribery Act 2010 (UK);

(d)

any other applicable Law (including any: statute, ordinance, rule or regulation; order of any court, tribunal or any other judicial body; and rule, regulation, guideline or order of any public body or any other administrative requirement) which:

(i)

prohibits, or has as its objective the prohibition of, the giving, offering, solicitation and/or receipt of bribes and/or other improper benefits;

(ii)

is broadly equivalent to the Laws described in paragraphs (a), (b), or (c); and/or

(iii)

was intended to enact the provisions of the OECD Convention on Combatting Bribery of Foreign Public Officials in International Business Transactions, 1997.

Bid Process Deed means the Bid Process Deed dated 29 September 2016 between GWIH2 and Macquarie Infrastructure and Real Assets Holdings Pty Ltd.

Business means the below rail infrastructure and above rail haulage businesses carried on by the GWA Group in Australia as at the date of this Agreement.

Business Day means a day which is not a Saturday, Sunday or a public holiday in Adelaide, South Australia.

Claim means any claim, demand, legal proceeding or cause of action including any claim, demand, legal proceeding or cause of action:

(e)

based in contract (including breach of warranty);

(f)

based in tort (including misrepresentation or negligence);

(g)

under common law; or

(h)

under statute (including the Australian Consumer Law (as contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) or as applying under any State or Territory fair trading legislation)),

whether present, unascertained, immediate, future or contingent and in any way relating to or under or in connection with this Agreement or a breach of this Agreement (including a breach of a GWI Warranty).

Co-Investor Party means each of MAIT LP, MAIF LP, MIRA GP and PGGM LP.

Co-Investor Party Warranties means the representations and warranties in respect of each Co-Investor Party set out in sections 1 and 2 of Schedule 3.

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Completion means completion of the capital contributions to the GWA Partnership by each of the Co-Investor Parties (or their Nominees) and the admissions of each Co-Investor Party (or their Nominees) as new general and limited partners of the GWA Partnership, (as applicable), in accordance with clause 7.

Completion Date means the date on which GRail Completion occurs.

Completion Funding Steps means the steps set out in Part 2 of Schedule 6.

Completion Working Capital means the consolidated working capital of the GWA Group as at the Completion Date, being the amount specified in the line item “Total” in the column entitled “Working Capital at Completion” in the Completion Working Capital Statement.

Completion Working Capital Statement means a working capital statement for the GWA Group as at Completion which statement when determined or agreed in accordance with the requirements of clause 8 will be taken to be final.

Conditions Precedent has the meaning given in clause 3.1.

Conditions Precedent End Date means 12 January 2017 or such later date as GWI and the Co-Investor Parties may agree in writing

Consequential Loss means any loss which is not:

(a)

a loss flowing directly and naturally from the relevant breach or circumstances; or

(b)

a loss which could reasonably be supposed to have been in the contemplation of the parties as a direct result of the relevant breach or the circumstances at the time the parties entered into this Agreement.

Confidentiality Arrangement means the Confidentiality Agreement between Macquarie Infrastructure and Real Assets Holdings Pty Limited and GWIH2 dated 14 June 2016.

Contamination means the presence in the Environment of a substance at a concentration:

(c)

above the concentration at which the substance is normally present in the Environment in the same locality; and

(d)

which presents a risk of harm to human health or to any aspect of the Environment.

Contracts means the contracts listed in Schedule 7.

Corporations Act means the Corporations Act 2001 (Cth).

CP Restructuring Steps means the steps set out in Part 1 of Schedule 6.

Data Room means the Project Monty online data room located at https://services.intralinks.com maintained by or on behalf of GWI and made available to the Co-Investor Parties and its Representatives.

Data Room Index means the index of documents in the Data Room set out in Schedule 9.

Data Room Materials means all documentation contained in the Data Room as listed in the Data Room Index.

Debt Term Sheet means the Debt Term Sheet - Project Monty annexed to the Mandate, Commitment and Fee Letter.

Disclosure Material means an item of information, communication or disclosure contained in any of the following categories of information:

(a)

the Data Room Materials; and

(b)

the responses provided to the Co-Investor Parties or their Representatives by GWI or its Representatives through the question and answer process in the Data Room.

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Partnership Investment Agreement

Employee means an employee of the GWA Group.

Environment has the meaning given in the Environment Protection Act 1993 (SA).

Environmental Law means a law (including common law, acts of parliament, regulations, policies and by-laws) or a provision of a law relating to the Environment.

Expert means a person of appropriate reputation, standing and relevant experience in accounting who has no direct or indirect personal interest in the outcome of the dispute or the issue in respect of which they are consulted pursuant to this Agreement, agreed by the parties or failing agreement within five Business Days of the parties commencing discussions to select an Expert, nominated by the President of the Institute of Arbitrators and Mediators Australia upon the request of any party.

External Bid Costs has the meaning given in the Bid Process Deed.

Fairly Disclosed in relation to a fact, matter or circumstance means disclosed in reasonably sufficient detail to allow a sophisticated Co-Investor Party (experienced in transactions of the nature of the transaction contemplated in this Agreement) (acting competently and professionally) to be aware of, identify or otherwise determine the substance of the fact, matter or circumstance.

FATA means the Foreign Acquisitions and Takeovers Act 1975 (Cth).

FATA Regulations means the Foreign Acquisitions and Takeovers Regulation 2015 (Cth).

Final GRail Bid Package means the package of GRail bid documents to be submitted to Glencore in accordance with clause 4.1, comprising:

(a)

binding bid letter;

(b)

proposed draft of the Share Sale Agreement;

(c)

proposed draft of the Rail Haulage Agreement and the Fuel Facilities Access Agreement; and

(d)

Financier Consent Deed and the Bank Support Letters,

in each case in the form agreed by the Parties.

Financing Documents means the finance documents listed in the Debt Term Sheet.

Fundamental Warranties means the representations and warranties set out in sections 1, 2 3.1(c) and in relation to the Concession Deed only, 3.5 of Schedule 2.

Glencore means Glencore Coal Pty Limited (ACN 082 271 930).

Governmental Agency means a government or governmental, semi-governmental or judicial entity or authority. It also includes a self-regulatory organisation established under statute or a stock exchange.

GRail means Glencore Rail (NSW) Pty Limited (ACN 079 546 777).

GRail Bid has the meaning given in Recital D.

GRail Completion means “Completion” under the Share Sale Agreement (as that term is defined in the Share Sale Agreement).

GRail Transaction means the implementation and completion of the GRail Bid, including the purchase of all of the issued share capital of GRail by a member of the GWA Group.

GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

GST Amount has the meaning given in clause 14.2.

GWA GP NewCo means GWI International Pty Ltd (ACN 616 014 754).

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GWA Group means each of the entities listed in Schedule 1.

GWA Partnership means G&W Australia Holdings LP, a limited partnership registered under the Partnership Act 1891 (SA).

GWIH2 means GWI Holdings No.2 Pty Ltd (ACN 132 989 998).

GWI Group means GWI, GWIH2, the GWA Partnership and each of their Related Bodies Corporate including for the avoidance of doubt GWI International BV, GWI Holding BV and GWA GP NewCo .

GWI Warranties means the representations and warranties of GWI set out in Schedule 2.

Indemnified Party has the meaning given in clause 10.7(b).

Information Memorandum means the ‘Highly Confidential Information Pack’ dated 17 June 2016 and the accompanying ‘Pro-Forma GWA Financial Model’ dated 17 June 2016 (including in each case, any supplement to it, or replacement of it).

Interest Rate means the rate which is the arithmetic mean (rounded up, if necessary, to the nearest 0.01%) of the bid rates displayed at or about 10.30am (Sydney time) on the Reuters screen BBSW page for Australian bank bills with a three month duration plus 3%.

Law means any statute, regulation, order, rule, subordinate legislation or other document enforceable under any statute, regulation, rule or subordinate legislation.

Leases means the leases listed in Schedule 7.

Liabilities means Claims, debts, obligations, liabilities, losses, expenses, costs and damages of any kind and however arising, including penalties, fines, and interest and including those which are prospective or contingent and those the amount of which for the time being is not ascertained or ascertainable.

MAIF LP means Macquarie Specialised Asset Management Limited as trustee for the MAIF Investment Trust which is to be admitted as a limited partner of the GWA Partnership in accordance with clause 5.

MAIF LP Partnership Contribution Amount means $200,663,595.00.

MAIT LP means Macquarie Australian Infrastructure Management 1 Limited as trustee for the Macquarie Australian Infrastructure Trust 1 which is to be admitted as a limited partner of the GWA Partnership in accordance with clause 5.

MAIT LP Partnership Contribution Amount means $100,331,797.50.

Mandate, Commitment and Fee Letter means the letter so-entitled dated on or about 14 October 2016 between GWIH2 and a number of lenders in respect of the provision of debt facilities for the purposes of the GRail Transaction.

MIRA GP means Scissor Holdings Pty Ltd which is to be admitted as a general partner of the GWA Partnership in accordance with clause 5.

MIRA GP Partnership Contribution Amount means $4,053,810.00.

Native Title has the same meaning as in the Native Title Act 1993 (Cth) or as otherwise recognised by Law from time to time.

Native Title Claim means any Claim or application recognised from time to time under any Law (including the Constitution of the Commonwealth of Australia) relating to Native Title, including any application under section 61 of the Native Title Act 1993 (Cth), whether successful or not.

Native Title or Aboriginal Land Rights Issue means:

(a)

any Native Title Claim;

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Partnership Investment Agreement

(b)

any Aboriginal Land Rights Claim;

(c)

any application or proceeding impugning or seeking to impugn:

(i)

any compulsory acquisition of Native Title;

(ii)

the validity of any Lease in connection with the rail infrastructure used as part of the Business because of the existence of Native Title;

(iii)

any application or proceeding impugning or seeking to impugn any agreement, approval, consent or undertaking with any person who has a Native Title Claim;

(iv)

any rescission, avoidance or repudiation of an agreement, approval or consent with or given by a person who has a Native Title Claim or Aboriginal Land Right Claim; or

(v)

the grant by a court of an injunction pending the court’s decision regarding any of the matters referred to in paragraphs (a) to (c) inclusive.

Nominee has the meaning given in clause 5.2(a).

Notice has the meaning given in clause 15.8.

Partnership Account means a bank account nominated by the GWA Partnership in writing to the Co-Investor Parties no later than 48 hours prior to Completion.

Partnership Agreement means the Amended and Restated Partnership Agreement in the form set out in Schedule 4, to be entered into in accordance with clause 7.

Partnership Contribution Amount means the MAIF LP Partnership Contribution Amount, the MAIT LP Partnership Contribution Amount, the MIRA GP Partnership Contribution Amount or the PGGM LP Contribution Amount (as the context requires).

Partnership Interests means the respective partnership interests in the GWA Partnership to be acquired by the Co-Investor Parties or their Nominees in accordance with clause 5.

Partnership Loan Agreement means an agreement which is consistent in all material respects with the Partnership Loan Term Sheet.

Partnership Loan Term Sheet means the term sheet set out in Schedule 10.

Partnership Transaction means the process and completion of the Co-Investor Parties or their Nominees becoming a new general partner and new limited partners (as applicable), of the GWA Partnership in accordance with the terms of this Agreement.

Permitted Security Interest means:

(a)

a charge or lien arising in favour of a Governmental Agency by operation of statute unless there is default in payment of money secured by that charge or lien;

(b)

any mechanics’, workmen’s or other like lien arising in the ordinary course of business;

(c)

any retention of title arrangement undertaken in the ordinary course of day-to-day trading, unless the amounts payable in respect of any collateral or property the subject of a retention of title arrangement are not paid when due;

(d)

any encumbrance in respect of deposits of money or property by way of security for the performance of any contractual or statutory obligations owing in the ordinary course of business (other than obligations for borrowed moneys on the deferred purchase price of goods or services);

(e)

any banker’s lien arising by operation of law in respect of moneys lodged or deposited with a banker;

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Partnership Investment Agreement

(f)

any claim lodged over land under the Native Title Act 1993 (Cth) or at common law by a person or persons claiming to hold native title; or

(g)

any Security Interests which are ‘Permitted Security Interests’ under the Debt Term Sheet which are not otherwise included in paragraphs (a) to (f) of this definition.

PGGM LP means Stichting Depositary PGGM Infrastructure Funds, acting in its capacity as title holder of PGGM Infrastructure Fund 2016 which is to be admitted as a limited partner of the GWA Partnership in accordance with clause 5.

PGGM LP Contribution Amount means $100,331,797.50.

Plant and Equipment means the plant and equipment listed in Schedule 7.

Property Title means Lot 10459 Town of Alice Springs.

Rail Accreditations means the accreditations listed in Schedule 7.

Rail Haulage Agreement means the Rail Haulage Agreement between GRail and Glencore in respect of the provision of rail haulage services by GRail to Glencore, to be entered into in accordance with clause 4 if the GRail Bid is successful.

Reference Working Capital Statement means the working capital statement for the GWA Group set out in Schedule 11.

Related Bodies Corporate has the meaning given in the Corporations Act.

Relevant Trust means:

(a)

in respect of Macquarie Specialised Asset Management Limited, the MAIF Investment Trust; and

(b)

in respect of Macquarie Australian Infrastructure Management 1 Limited, the Macquarie Australian Infrastructure Trust 1.

Representative Member has the meaning given by the GST Act.

Representatives means in relation to a person or entity, its officers, employees, agents, professional advisers (including financial and legal advisors) or financiers.

Security Interest means any mortgage, pledge, lien or charge or any security or preferential interest or arrangement of any kind. It includes:

(a)

anything which gives a creditor priority to other creditors with respect to any asset; and

(b)

retention of title and a deposit of money by way of security.

It does not include an interest of the kind referred to in section 12(3) of the PPSA where the transaction concerned does not, in substance, secure payment or performance of an obligation.

Services Agreement means the services agreement to be entered into between the GWA Partnership and Genesee & Wyoming Railroad Services, Inc, the current draft of which is set out in Schedule 12 and which will be agreed by the GWI and the Co-Investor Parties in accordance with clause 4.5.

Share Sale Agreement means the Share Sale Agreement between Glencore and a member of the GWA Group in respect of the sale and purchase of all of the shares in GRail, to be entered into in accordance with clause 4 if the GRail Bid is successful.

Specified Clauses means clauses 1, 4.4(b), 10, 13, 14 and 15.

Target Working Capital means the amount specified in the final line item “Total Working Capital” in the column entitled “Reference Working Capital” in the Reference Working Capital Statement.

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Partnership Investment Agreement

Tax means any income tax, stamp duty (excluding stamp duty relating to or in respect of the Partnership Transaction or the GRail Transaction), land tax, sales tax, payroll tax, fringe benefits tax, group tax, withholding tax, franking deficits tax, goods and services tax, debits tax or any other taxes imposed in Australia by any government or Governmental Agency (including diesel fuel taxes and rebates, fines, additional tax, interest or penalties).

Tax Authority means any government, and any person, agency or office, authorised by law to impose, collect or otherwise administer any Tax.

Tax Claim means a Claim arising from a breach of a Tax Warranty or arising under clause 11.1 of this Agreement.

Tax Notice means a notice of demand or an assessment from a Tax Authority or any document received from a Tax Authority assessing, imposing, claiming or indicating an intention to assess, impose or claim any Tax.

Tax Warranty means the warranties set out in section 3.11 of Schedule 2.

Trustee Liability means any liability or obligation (of any kind including, without limitation, for negligence, in tort, in equity, or under statute) of the relevant Trustee which arises in any way under or in connection with this document or its performance, or any representation, warranty, conduct, omission, agreement or transaction made under or in connection with this document or its performance.

Trustees means:

(a)

Macquarie Specialised Asset Management Limited; and

(b)

Macquarie Australian Infrastructure Management 1 Limited,

and Trustee means any one of them.

Trustee Warranties means the representations and warranties in respect of each Trustee set out in section 2 of Schedule 3.

Trusts means:

(c)

the MAIF Investment Trust; and

(d)

the Macquarie Australian Investment Trust 1,

and Trust means any one of them.

1.2

Interpretation

(a)

Headings are for convenience only and do not affect interpretation.

(b)

Mentioning anything after includes, including, for example, or similar expressions, does not limit what else might be included.

(c)

Nothing in this Agreement is to be interpreted against a party solely on the ground that the party put forward this Agreement or a relevant part of it.

(d)

The following rules apply unless the context requires otherwise.

(i)

The singular includes the plural, and the converse also applies.

(ii)

A gender includes all genders.

(iii)

If a word or phrase is defined, its other grammatical forms have a corresponding meaning.

(iv)

A reference to a person or entity includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity.

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Partnership Investment Agreement

(v)

A reference to a clause or Schedule is a reference to a clause of, or Schedule to, this Agreement.

(vi)

A reference to an agreement or document (including a reference to this Agreement) is to the agreement or document as amended, supplemented, novated or replaced, except to the extent prohibited by this Agreement or that other agreement or document.

(vii)

A reference to writing includes any method of representing or reproducing words, figures, drawings or symbols in a visible and tangible form but excludes a communication by electronic mail.

(viii)

A reference to a party to this Agreement or another agreement or document includes the party’s successors, permitted substitutes and permitted assigns (and, where applicable, the party’s legal personal representatives).

(ix)

A reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it.

(x)

A reference to conduct includes an omission, statement or undertaking, whether or not in writing.

(xi)

A reference to an agreement includes any undertaking, deed, agreement and legally enforceable arrangement, whether or not in writing, and a reference to a document includes an agreement (as so defined) in writing and any certificate, notice, instrument and document of any kind.

(xii)

A reference to $, A$ or dollars is to Australian currency.

1.3

Consents or approvals

If the doing of any act, matter or thing under this Agreement is dependent on the consent or approval of a party or is within the discretion of a party, the consent or approval may be given or the discretion may be exercised conditionally or unconditionally or withheld by the party in its absolute discretion, unless expressly provided otherwise.

1.4

Best endeavours or reasonable endeavours

A reference to a party using or obligation on a party to use its best endeavours or reasonable endeavours does not oblige that party to:

(a)

pay money:

(i)

in the form of an inducement or consideration to a third party to procure something (other than the payment of immaterial expenses or costs, including costs of advisers, to procure the relevant thing); or

(ii)

in circumstances that are commercially onerous or unreasonable in the context of this Agreement;

(b)

provide other valuable consideration to or for the benefit of any person; or

(c)

agree to commercially onerous or unreasonable conditions.

1.5

Method of payment

All payments required to be made under this Agreement must be tendered by way of direct transfer of immediately available funds to the bank account nominated in writing by the party to whom the payment is due, by not later than 4pm Sydney time on the due date for payment. Any payment tendered under this Agreement after 4pm Sydney time on any date will be taken to have

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Partnership Investment Agreement

been made on the next succeeding Business Day (the deemed payment date) after the date on which payment was tendered, and if the deemed payment date is after the relevant due date for payment, interest will accrue under clause 1.7 accordingly.

1.6

No-deduction or set off

(a)

Each Co-Investor Party agrees to pay the relevant amount set out in clauses 5.1(a) to 5.1(g) in full without set-off or counterclaim, and without any deduction or withholding in respect of Taxes, unless required by law.

(b)

If a party is required to make any withholding or deduction for Taxes, under or in connection with this Agreement, the party must:

(i)

pay or procure the payment of the full amount of the withholding or deduction to the appropriate Government Agency or Tax Authority under applicable law; and

(ii)

at the same time of the relevant deduction or withholding, pay such additional amount to the other party as shall be required to ensure that the net amount received by the other party will equal the full amount which would have been received by it had no such deduction or withholding been required to be made.

1.7

Interest on amounts payable

If any party fails to pay any amount payable by it under or in accordance with this Agreement that party must, if demand is made, pay simple interest on that amount from the due date for payment until that amount is paid in full at the rate per annum which is the Interest Rate on the date which is three Business Days prior to the date on which the payment was due. The right to require payment of interest under this clause is without prejudice to any other rights the non-defaulting party may have against the defaulting party at law or in equity.

1.8

Knowledge as to GWI Warranties

(a)

Certain statements made by GWI in Schedule 2 are given and made by GWI only on the basis of its knowledge. For the purposes of this Agreement, GWI’s knowledge is limited to the actual knowledge, of GWI having made reasonable enquiries of the following people:

(i)

the following directors of members of the GWA Group – John Hellmann, David Brown, Michael Miller and Adam Cunliffe;

(ii)

the following Representatives of GWI – Timothy Gallagher and Matt Walsh; and

(iii)

the following executive management and senior employees of the GWA Group – Greg Pauline, John McArthur, Michael Morris, Ian Hall, Tav Martin, Vanessa Hoey, Natasha Jensen, Catriona Scott and Paul Hollitt.

(b)

The knowledge of any other persons other than the persons named in paragraph (a) will not be imputed to GWI.

(c)

The persons named in paragraph (a) will not bear any personal liability in respect of the GWI Warranties or otherwise under this Agreement.

2	Transaction Overview

The Partnership Transaction and the GRail Transaction will be implemented through the following steps and transactions, to be sequenced in accordance with this Agreement.

(a)

( GRail Bid ) a member of the GWA Group on behalf of the GWA Partnership will submit the Final GRail Bid Package to Glencore in accordance with clause 4;

(b)

( GRail Transaction documents ) if the GRail Bid is accepted by Glencore, GWI will negotiate and agree the final Rail Haulage Agreement and Share Sale Agreement with

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Partnership Investment Agreement

Glencore, and GWI will procure the execution of the Share Sale Agreement by the relevant member of the GWA Group, in accordance with clause 4;

(c)

( Partnership Transaction ) if the GRail Bid is accepted by Glencore, then, subject to clauses 3 and 4.3 and subject to GWI complying with its obligations under clause 7.3, each Co-Investor Party will provide the relevant capital contribution and loan to the GWA Partnership, subscribe for and be issued the relevant Partnership Interests and be admitted as new general and limited partners of the GWA Partnership (as applicable), in accordance with clause 5; and

(d)

( GRail Transaction ) subject to the satisfaction or waiver of the conditions precedent in the Share Sale Agreement, the GRail Transaction will be completed in accordance with the terms of the Share Sale Agreement.

3	Conditions Precedent to Partnership Transaction

3.1

Conditions Precedent

Subject to this clause 3, completion of the Partnership Transaction in accordance with clause 7 will not proceed unless and until each of the following conditions precedent (the Conditions Precedent ) is satisfied or waived (to the extent and in the manner set out in clause 3.4):

(a)

( Successful GRail Bid ) The Share Sale Agreement as agreed in accordance with clause 4 is executed by all parties to that agreement.

(b)

( Share Sale Agreement CPs ) Each of the conditions precedent to the Share Sale Agreement are satisfied or waived in accordance with the terms of that agreement.

(c)

( FIRB ) The Treasurer of the Commonwealth of Australia (or his or her delegate) ( Treasurer ):

(i)

provides written notice that there are no objections under the FATA, the FATA Regulations or Australia’s foreign investment policy to the investments by the Co- Investor Parties in the GWA Partnership contemplated by this Agreement, either on an unconditional basis or subject only to conditions acceptable to GWI and the Co-Investor Parties, each acting reasonably; or

(ii)

after notice of the Partnership Transaction and GRail Transaction has been given by or on behalf of the Co-Investor Parties to the Treasurer under the FATA, becomes precluded by the passage of time from making any order or decision under Division 2 of Part 3 of the FATA in respect of the investments by the Co- Investor Parties in the GWA Partnership contemplated by this Agreement,

whichever first occurs.

(d)

( CP Restructuring Steps ) GWI procures the completion of each of the CP Restructuring Steps and has provided the evidence specified in Schedule 6 as applicable to the Co- Investor Parties that the CP Restructuring Steps have been completed.

3.2

Parties must co-operate

Each party must co-operate with each other party and do all things reasonably necessary to procure that the Conditions Precedent are fulfilled as soon as reasonably possible, and in any event on or before the Conditions Precedent End Date.

3.3

Specific obligations of co-operation

Without limiting the generality of clause 3.2:

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Partnership Investment Agreement

(a)

each party must make all necessary and appropriate applications and supply all necessary and appropriate information for the purpose of enabling the Conditions Precedent to be fulfilled;

(b)

no party may withdraw or procure the withdrawal of any application made or information supplied under clause 3.3(a) (except in relation to any application made in connection with the Condition Precedent in 3.1(c) if requested by the relevant Governmental Agency to be withdrawn and promptly resubmitted in accordance with the customary practice of that Governmental Agency);

(c)

no party may take any action that would or would be likely to prevent or hinder the fulfilment of the Conditions Precedent (provided that this will not prohibit the termination of the Share Sale Agreement in accordance with its terms);

(d)

each party must (subject to any confidentiality obligations owing to third parties):

(i)

subject to clause 3.3(e), supply to the other party copies of all applications made and all information supplied for the purpose of enabling the Conditions Precedent to be fulfilled;

(ii)

keep the other party informed in a timely manner of the status of any discussions or negotiations with relevant third parties regarding the Conditions Precedent; and

(iii)

promptly notify the other party on becoming aware of the fulfilment of any Condition Precedent or of any Condition Precedent becoming incapable of being fulfilled; and

(e)

without limiting clause 3.3(d), in respect of the Condition Precedent in clauses 3.1(c) (FIRB), the Co-Investor Parties must:

(i)

provide a draft of all notifications, applications, submissions and responses with all relevant Governmental Agencies to GWI within a reasonable period of time prior to submission to the relevant Governmental Agency so as to allow GWI the opportunity to review and provide comments to the Co-Investor Parties prior to their submission; and

(ii)

act reasonably in taking into account and including any comments provided by GWI under clause 3.3(e)(i) prior to submitting the relevant notification, application, submission or response.

3.4

Waiver

(a)

The Conditions Precedent in clauses 3.1(a), 3.1(b) and 3.1(c) cannot be waived.

(b)

The Condition Precedent in clause 3.1(d) may only be waived by GWI and the Co- Investor Parties in writing.

3.5

Termination before Completion

(a)

Subject to clause 3.5(c), GWI or the Co-Investor Parties may terminate this Agreement before Completion by providing notice to the other if any of the Conditions Precedent are not fulfilled or waived on or before the Conditions Precedent End Date.

(b)

Subject to clause 3.5(c), the Co-Investor Parties may terminate this Agreement before Completion by providing notice to GWI if a material breach of a Fundamental Warranty occurs on or before the Conditions Precedent End Date.

(c)

GWI or the Co-Investor Parties may only terminate this Agreement under this clause 3.5 if they have complied with clauses 3.2 and 3.3.

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3.6

Effect of termination

If this Agreement is terminated under clause 3.5, clause 4.4(b) or otherwise, then:

(a)

except for this clause 3.6 and the Specified Clauses, each party is released from its obligations under this Agreement and this Agreement will be null and void and of no effect, provided that each party will retain any accrued rights and remedies; and

(b)

the Co-Investor Parties acknowledge and agree that GWI or any member or members of the GWI Group may continue to negotiate with Glencore to purchase, and may purchase, the shares in GRail or its rail haulage business.

4	GRail Bid

4.1

Submission of the Final GRail Bid Package

(a)

On or as soon as practicable after the date of this Agreement, GWI will submit (on behalf of itself and the Co-Investor Parties) the Final GRail Bid Package to Glencore.

(b)

Unless otherwise agreed by GWI and the Co-Investor Parties, no amendments will be made to the Final GRail Bid Package prior to submission of the Final GRail Bid Package to Glencore by the GWA Partnership.

4.2

Discussions with Glencore

Following the submission of the Final GRail Bid Package:

(a)

subject to clause 4.2(b), GWI will be primarily responsible for all communications and negotiations with Glencore and its Representatives relating to the GRail Transaction; and

(b)

GWI will, and will procure that the relevant members of the GWI Group:

(i)

work collaboratively with the Co-Investor Parties and their Representatives in relation to the GRail Transaction;

(ii)

provide the Co-Investor Parties and their Representatives with the opportunity to be involved in all discussions and negotiations with Glencore and its Representatives;

(iii)

work collaboratively with the Co-Investor Parties and their Representatives regarding the approach to be taken by the GWA Partnership in the discussions and negotiations with Glencore and its Representatives;

(iv)

provide the Co-Investor Parties and their Representatives with drafts of any documents or proposed amendments or comments in relation to any documents relating to the GRail Transaction that are to be submitted to Glencore, with sufficient time to enable the Co-Investor Parties and their Representatives to review and provide comments on and discuss with GWI and its Representatives the form of the documentation to be submitted by the GWA Partnership to Glencore and its Representatives;

(v)

meet as often as is reasonably necessary with the Co-Investor Parties and their Representatives in respect of the GRail Transaction;

(vi)

provide reasonable notice to the Co-Investor Parties of all discussions and negotiations with Glencore and its Representatives; and

(vii)

keep the Co-Investor Parties and their Representatives regularly informed of the outcomes of all discussions and negotiations (to the extent the Co-Investor Parties are unable to attend such negotiations and discussions) with Glencore and its Representatives and the progress of the GRail Transaction; and

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(c)

the Co-Investor Parties will:

(i)

work collaboratively with GWI and its Representatives in relation to the GRail Transaction;

(ii)

meet as often as is reasonably necessary with the Co-Investor Parties and their Representatives in respect of the GRail Transaction; and

(iii)

review and respond promptly to GWI and its Representatives in respect of:

(A)

the proposed approach to be taken with Glencore and its Representatives in respect of the negotiations and discussions relating to the GRail Transaction; and

(B)

any documents or proposed amendments or comments in relation to any documents relating to the GRail Transaction that are to be submitted to Glencore.

4.3

Finalisation of GRail Bid and the terms of the GRail Transaction

Following the submission of the Final GRail Bid Package, the following matters relating to the GRail Transaction must be agreed and approved by each of GWI and the Co-Investor Parties:

(a)

the final purchase price to be agreed with Glencore for the GRail Transaction;

(b)

the final form of the Rail Haulage Agreement;

(c)

the final form of the Fuel Facilities Access Agreement;

(d)

the final form of the Fuel Supply Agreement (if required);

(e)

the final form of the Share Sale Agreement;

(f)

the final form of any other documents to be entered into as part of the GRail Transaction; and

(g)

the final form of the Financing Documents.

4.4

Finalisation of documents

(a)

Each party must co-operate with the other party and use its best endeavours to agree (including with third parties) and approve the matters specified in clause 4.3.

(b)

If, following good faith discussions and provided that GWI has complied with its obligations under clause 4.2, the Co-Investor Parties and GWI are unable to agree the documents specified in clause 4.3(a) to clause 4.3(f) (inclusive) with the Glencore counterparties to those documents, GWI may terminate this Agreement provided that:

(i)

it has given a written notice to the Co-Investor Parties attaching the documents in clause 4.3 that GWI is prepared to execute ( Termination Notice ); and

(ii)

the Co-Investor Parties do not notify GWI in writing that they accept the terms as set out in the documents attached to the Termination Notice within 36 hours of receiving a Termination Notice.

(c)

If this Agreement is terminated by GWI under clause 4.4(b), GWI must reimburse the External Bid Costs incurred by the Co-Investor Parties in relation to the GRail Bid, the GRail Transaction and the Partnership Transaction, up to a maximum of A$650,000.

4.5

Other matters

(a)

On and from the date of this Agreement GWI and the Co-Investor Parties must negotiate in good faith to finalise the terms of the Services Agreement before Completion.

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Partnership Investment Agreement

(b)

GWI and the Co-Investor Parties agree that any outstanding information in the Partnership Agreement will be completed and any changes to the Partnership Agreement reasonably required to facilitate PGGM LP’s investment structure will be incorporated.

5	Partnership Transaction

5.1

Partnership Transaction Steps

Subject to the satisfaction or waiver of each Condition Precedent in accordance with clause 3:

(a)

in consideration for MIRA GP contributing capital of $4,053,810.00 to the GWA Partnership, it will acquire, by way of subscription, a 0.489% partnership interest in the GWA Partnership and be admitted as a new general partner of the GWA Partnership;

(b)

in consideration for the MAIT LP or its Nominee contributing capital of $100,331,797.50 to the GWA Partnership, it or its Nominee will acquire, by way of subscription, a 12.10275% partnership interest in the GWA Partnership and be admitted as a new limited partner of the GWA Partnership;

(c)

in consideration for MAIF LP contributing capital of $200,663,595.00 to the GWA Partnership, it will acquire, by way of subscription, a 24.2055% partnership interest in the GWA Partnership and be admitted as a new limited partner of the GWA Partnership;

(d)

in consideration for PGGM LP or its Nominee contributing capital of $100,331,797.50 to the GWA Partnership, it or its Nominee will acquire, by way of subscription, a 12.10275% partnership interest in the GWA Partnership and be admitted as a new limited partner of the GWA Partnership;

(e)

MAIT LP or its Nominee will provide a loan to the GWA Partnership of $59,535,750.00 in accordance with the Partnership Loan Agreement;

(f)

MAIF LP will provide a loan to the GWA Partnership of $119,071,500.00 in accordance with the Partnership Loan Agreement;

(g)

PGGM LP or its Nominee will provide a loan to the GWA Partnership of $59,535,750,00 in accordance with the Partnership Loan Agreement;

(h)

GWI will procure that the GWA Partnership issues the partnership interests to the Co- Investor Parties or to the Nominee of a Co-Investor Party and admits the Co-Investor Parties (or the Nominee of a Co-Investor Party) as general or limited partners (as applicable) of the GWA Partnership;

(i)

settlement of the subscription of the partnership interests in the GWA Partnership by the Co-Investor Parties or any of their Nominees, the issue of the partnership interests by the GWA Partnership and the admission of the Co-Investor Parties or their Nominees as general and limited partners (as applicable) of the GWA Partnership will take place by:

(i)

each Co-Investor Party or its Nominee paying the amounts set out in clauses 5.1(a) to 5.1(d), respectively, to the GWA Partnership in immediately available funds to the Partnership Account at Completion;

(ii)

GWA GP NewCo resolving in its capacity as general partner of the GWA Partnership to issue the partnership interests to the Co-Investor Parties or their Nominees, admit the Co-Investor Parties or their Nominees as general and limited partners (as applicable) of the GWA Partnership; and

(iii)

the GWA Partnership issuing the partnership interests to the Co-Investor Parties or their Nominees, admitting the Co-Investor Parties or their Nominees as general and limited partners (as applicable) of the GWA Partnership,

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Partnership Investment Agreement

with effect from the Completion Date;

(j)

with effect from the Completion Date, the Partnership Agreement will be amended and restated in the form set out in Schedule 4 upon the execution by all parties to that agreement, with such execution evidencing the agreement in writing to alter the Partnership Agreement;

(k)

this Agreement serves as an application by each of the Co-Investor Parties or their Nominees at the Completion Date to subscribe for the partnership interests in the GWA Partnership in accordance with clauses 5.1(a) to 5.1(d), respectively, and accordingly it will not be necessary for the Co-Investor Parties or their Nominees to provide a separate (additional) application at the Completion Date; and

(l)

upon the issue of the relevant partnership interests to the Co-Investor Parties or their Nominees on the Completion Date, each Co-Investor Party or its Nominee agrees to become a general partner and limited partner, as applicable, of the GWA Partnership subject to and in accordance with the terms of the Partnership Agreement.

5.2

Nomination by a Co-Investor Party

(a)

A Co-Investor Party may nominate a wholly owned entity ( Nominee ) to acquire the relevant Partnership Interests and provide the relevant loan to the GWA Partnership on Completion, provided that the Co-Investor Party gives GWI written notice of the Nominee and all relevant details at least 4 Business Days prior to Completion.

(b)

The relevant Co-Investor Party will continue to be bound by all of the obligations of that Co-Investor Party under this Agreement and will not be released from any obligations or liabilities under this Agreement. However, GWI agrees that the Co-Investor Party will not be in breach of this Agreement for failing to discharge an obligation of that Co-Investor Party under this Agreement if the Nominee fully discharges that obligation.

(c)

GWI acknowledges that this clause is for the benefit of the Nominee and such benefit is held on trust for the Nominee by the Co-Investor Party who may enforce this clause on behalf of the Nominee.

6	Obligations Prior to Completion Date

6.1

GWI’s obligations

(a)

Prior to the Completion Date, except as permitted by this Agreement or consented to by the Co-Investor Parties, GWI must procure that:

(i)

( conduct of business ) the Business is conducted by the GWA Group in its ordinary course;

(ii)

( no Reserved Matters ) the GWA Partnership does not take or omit to take, or allow to be done, an action that would constitute a “Reserved Matter” as set out in Schedule 3 of the Partnership Agreement; and

(iii)

( Share Sale Agreement ) once the Share Sale Agreement has been entered into, GWI Acquisitions Pty Ltd does not provide any consent, agreement or approval under or in connection with the Share Sale Agreement.

(b)

The Co-Investor Parties must not unreasonably withhold or delay any consent required under this clause 6.1 and each Co-Investor Party will be taken to have given its consent for the purposes of this clause 6.1 if that Co-Investor Party does not, within a period of time that is reasonable in the context of the matter to which the consent relates, notify GWI that it refuses its consent.

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Partnership Investment Agreement

(c)

In this clause 6.1, a reasonable period of time means within 72 hours after being notified by GWI of a proposed action or such shorter period as required under the SSA.

(d)

Prior to the Completion Date, GWI must procure that the GWA Partnership and the members of the GWA Group do not forgive any loans made by or to the GWA Partnership or a member of the GWA Group without the approval of the Co-Investor Parties.

6.2

Factors relevant to GWI’s obligations

In complying with its obligations under clause 6.1(a)(i) or clause 6.1(a)(ii), GWI is not required to do, to omit to do, or to allow to be done anything which would, in GWI’s opinion breach:

(a)

any obligations (including obligations of confidentiality) that GWI or any member of the GWI Group owes to any third party or under any Law; and

(b)

any GWI Warranty.

6.3

Information and access

Subject to clause 6.4, prior to the Completion Date, GWI must procure that the Co-Investor Parties and their Representatives are permitted:

(a)

during normal business hours to have reasonable access to the sites at which the Business is conducted for the purpose of viewing the state or condition of the GWA Group’s assets and the manner in which the Business is conducted, accompanied by a representative of GWI; and

(b)

during normal business hours to have reasonable access to all the accounts, records and data which relate exclusively to the GWA Group and the Business and which are in the possession of the GWA Group.

6.4

Conditions of access

The Co-Investor Parties may only exercise the right of access under clause 6.3 if:

(a)

the Co-Investor Parties have provided GWI with reasonable prior notice of the access that the Co-Investor Parties require (including the identity of the persons who are to exercise that right of access on behalf of the Co-Investor Parties);

(b)

the access will not, in the reasonable opinion of GWI, interfere with the conduct of the Business;

(c)

the access will not, in the reasonable opinion of GWI, breach any obligations (including obligations of confidentiality) that GWI or a member of the GWI Group owes to any third party or under any Law (including any applicable anti-trust Law);

(d)

the access will not, in the reasonable opinion of GWI, damage or compromise the protection of legal professional privilege attaching to any accounts, records or data; and

(e)

the Co-Investor Parties agree to comply with GWI’s reasonable requirements and directions in relation to that access.

Any exercise of the right of access under clause 6.3 by the Co-Investor Parties or any of their Representatives is at the risk and expense of the Co-Investor Parties.

6.5

Check the Box Elections

The Co-Investor Parties acknowledge that GWI may make, and nothing in this Agreement prevents GWI from making, ‘check-the-box’ elections for US tax purposes in respect of any member of the GWA Group.

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Partnership Investment Agreement

6.6

Debt financing

GWI must procure that the relevant members of the GWA Group take such steps as are required under the Financing Documents to satisfy the initial conditions precedent to funding and drawdown of the debt financing to fund the GRail Transaction that are within the control of the members of the GWA Group.

7	Completion of Partnership Transaction

7.1

Notice of representatives

At least five Business Days prior to the Completion Date, each of GWI and MIRA GP must give the other a notice in writing setting out the details of the persons to be appointed as representative members of the management committee of the GWA Partnership to be established under the Partnership Agreement.

7.2

Completion place

Completion of the Partnership Transaction will take place on the Completion Date at the offices of GWI’s solicitors, Allens of Deutsche Bank Place, Corner of Hunter & Phillips Streets, Sydney or at any other place as GWI and the Co-Investor Parties may agree.

7.3

Obligations of GWI on Completion

At Completion, GWI must:

(a)

procure that GWA GP NewCo in its capacity as general partner of the GWA Partnership passes all resolutions necessary to:

(i)

issue the Partnership Interests to the Co-Investor Parties or their Nominees; and

(ii)

admit the Co-Investor Parties or their Nominees as general and limited partners (as applicable) of the GWA Partnership;

(b)

procure that GWA GP NewCo in its capacity as general partner of the GWA Partnership:

(i)

issues the Partnership Interests to the Co-Investor Parties or their Nominees; and

(ii)

admits the Co-Investor Parties or their Nominees as general and limited partners (as applicable) of the GWA Partnership;

(c)

deliver to the Co-Investor Parties:

(i)

a copy of the Partnership Agreement duly executed by GWA GP NewCo as a general partner and GWI Holding BV as a limited partner;

(ii)

a copy of the Services Agreement duly executed by Genesee & Wyoming Railroad Services, Inc and the GWA Partnership;

(iii)

a copy of the Partnership Loan Agreement duly executed by GWI Holding BV and the GWA Partnership;

(iv)

evidence satisfactory to the Co-Investor Parties (acting reasonably) that the condition precedent to first Utilisation (Permitted Financial Indebtedness and Permitted Security Interest) in paragraph (o) of Part B of Schedule 2 of the Debt Term Sheet has been satisfied; and

(v)

written confirmation duly executed by GWA GP NewCo in a form satisfactory to the Co-Investor Parties (acting reasonably) confirming that GWA GP NewCo holds all of the issued shares in the capital of GWIH2 in its capacity as a general partner of the GWA Partnership and that such shares are Partnership Property (as that term is defined in the Partnership Agreement).

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Partnership Investment Agreement

7.4

Obligations of the Co-Investor Parties on Completion

At Completion, each Co-Investor Party must:

(a)

deliver to GWI an original counterpart of the Partnership Agreement duly executed by that Co-Investor Party or its Nominee as a general partner or a limited partner (as applicable);

(b)

deliver to GWI a copy of the Partnership Loan Agreement duly executed by each Co- Investor Party or its Nominee that is a party to that agreement; and

(c)

pay into the Partnership Account and deliver evidence of the payment by that Co-Investor Party or its Nominee of its Partnership Contribution Amount and any partner loan in immediately available funds.

7.5

Completion Funding Steps

(a)

On the Completion Date GWI must complete the Completion Funding Steps.

(b)

Each party must co-operate with the other parties and do all things reasonably necessary to procure that the Completion Funding Steps are completed.

7.6

Actions at Completion

(a)

Completion is taken to have occurred when GWI has performed all its obligations under clauses 7.3 and 7.5 and each of the Co-Investor Parties has performed all its obligations under clause 7.4.

(b)

In respect of Completion:

(i)

the obligations of the parties under this Agreement are interdependent; and

(ii)

unless otherwise stated, all actions required to be performed by a party at Completion are taken to have occurred simultaneously on the Completion Date.

(c)

Each of GWI and the Co-Investor Parties must execute any other documents, deeds or instruments as may reasonably be required by GWI or the Co-Investor Parties to vest ownership of all of the Partnership Interests in the Co-Investor Parties or their Nominees subject to and in accordance with this Agreement.

7.7

Notice to complete

If Completion does not occur in accordance with this clause 7 because of the failure of any party ( Defaulting Party ) to satisfy any of its obligations then:

(a)

GWI (where the Defaulting Party is a Co-Investor Party); or

(b)

the Co-Investor Parties (where the Defaulting Party is GWI),

(in either case the Non-Defaulting Party ) may give the Defaulting Party a notice requiring the Defaulting Party to satisfy those obligations within a period of two Business Days after the date of the notice and specifying that time is of the essence in relation to that notice.

7.8

Remedies for failure to comply with notice

(a)

If the Defaulting Party fails to comply with a notice given under clause 7.7, the Non- Defaulting Party may immediately terminate this Agreement.

(b)

The Defaulting Party acknowledges that:

(i)

damages may not be an adequate remedy for the Non-Defaulting Party and its Related Entities for any breach of this Agreement; and

(ii)

the Non-Defaulting Party may seek specific performance or injunctive relief as a remedy for any actual or threatened breach (without the need to give an

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Partnership Investment Agreement

undertaking as to damages), in addition to any other remedies available at law or in equity under or independently of this Agreement.

8	Completion Working Capital Adjustment

8.1

Purpose of the Working Capital Adjustment

The parties acknowledge that the purpose of the preparation of the Completion Working Capital Statement is to measure the difference in working capital of the GWA Group between the amount set out in the Reference Working Capital Statement and the amount set out in the Completion Working Capital Statement. Any difference between working capital as disclosed in these statements will be accounted for in accordance with clause 8.6.

8.2

Draft Completion Working Capital Statement

(a)

GWI must procure that no later than 30 Business Days after Completion a draft of the Completion Working Capital Statement is prepared and delivered to the Co-Investor Parties.

(b)

The draft Completion Working Capital Statement must be prepared

(i)

in the format and using only those line items set out in Schedule 11; and

(ii)

in accordance with the Accounting Principles.

8.3

Report by Co-Investor Parties

(a)

The Co-Investor Parties must deliver to GWI, by no later than 30 Business Days after receipt of the draft Completion Working Capital Statement, a report ( Co-Investor’s Report ) stating whether or not the Co-Investor Parties agree with the Completion Working Capital Statement and the Adjustment Amount.

(b)

If the Co-Investor Parties do not agree with the Completion Working Capital Statement or the Adjustment Amount, the Co-Investor Parties must also set out in the Co-Investor’s Report:

(i)

the matters in respect of which they disagree with the draft Completion Working Capital Statement ( Disputed Matters );

(ii)

the grounds on which the Co-Investor Parties disagree with the draft Completion Working Capital Statement;

(iii)

a separate dollar value for each of the Disputed Matters; and

(iv)

their opinion as to the Adjustment Amount.

8.4

Agreement or failure by Co-Investor Parties to report

If the Co-Investor Parties:

(a)

state in their Co-Investor’s Report that they agree with the Adjustment Amount; or

(b)

do not deliver the Co-Investor’s Report as required under clause 8.3(a)

then the draft Completion Working Capital Statement delivered under clause 8.2 will be deemed to be the final Completion Working Capital Statement and will be conclusive, final and binding on the parties.

8.5

Dispute resolution procedure

(a)

If the Co-Investor Parties do not agree with the Adjustment Amount as determined in accordance with the draft Completion Working Capital Statement, and Co-Investor’s Report contains the information referred to in clause 8.3(b), then the Co-Investor

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Partnership Investment Agreement

Parties and GWI must enter into good faith negotiations and use all reasonable endeavours to agree the Disputed Matters.

(b)

Despite clause 8.3(b), the Co-Investor Parties may not dispute:

(i)

an individual line item in the draft Completion Working Capital Statement unless the amount disputed for that line item is greater than A$25,000; and

(ii)

any amount in the draft Completion Working Capital Statement where the aggregate amounts in dispute are less than A$50,000.

(c)

If the dispute is not resolved within 30 Business Days of the delivery of Co-Investor’s Report (or such longer period as the parties may agree), then the parties must promptly refer the dispute for determination to an Expert who will determine the Disputed Matters. If this clause 8.5 applies in respect of all or part of any item referred to in the Completion Working Capital Statement, the amount to be paid under clause 8.6 will exclude the item (or the relevant part of it) in dispute. Payment in respect of that item (or the relevant part of it) must be made within five Business Days after the Expert’s determination. Payment of the amount not in dispute must be made within the five day period referred to in 8.7(a).

(d)

GWI and the Co-Investor Parties may each make a submission to the Expert in respect of each of the Disputed Matters within 15 Business Days of the Expert being appointed and may make a response to the submission of the other party (including for the avoidance of doubt, Co-Investor’s Report) within 15 Business Days of receiving the other party’s submission.

(e)

The Disputed Matters must be referred to the Expert by written submissions from the parties which must include only:

(i)

the draft Completion Working Capital Statement(together with any working papers);

(ii)

Co-Investor’s Report;

(iii)

any submission to the Expert or a response to such a submission made in accordance with clause 8.5(d); and

(iv)

an extract of the relevant provisions of this Agreement.

(f)

The Expert must also be instructed to decide the Disputed Matters and finish its determination and deliver to GWI and the Co-Investor Parties a report ( Expert’s Report ) which contains a copy of the amended Completion Working Capital Statement (if any) which states, on the basis of the Expert’s decision, its opinion as to:

(i)

the Disputed Matters, including the reasons for the Expert’s decision;

(ii)

the Adjustment Amount; and

(iii)

the allocation of the Expert’s costs in accordance with clause 8.5(n);

no later than 40 Business Days after receipt of the submissions (or such other period agreed by the parties having regard to the matters in dispute).

(g)

The parties must promptly supply the Expert with any information, assistance and co- operation requested in writing by the Expert in connection with its determination. All correspondence between the Expert and a party must be copied to the other party.

(h)

Copies of any submission, response or document submitted to or by the Expert or a party as contemplated by this clause 8.5 will be submitted by the Expert to the other party simultaneously or as soon as received, as the case may be.

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(i)

Any written correspondence between the Expert and GWI or the Co-Investor Parties must be copied to each of GWI and the Co-Investor Parties at the same time it is sent to the principal recipient.

(j)

The Expert must apply the Accounting Principles.

(k)

In the absence of agreement between GWI and the Co-Investor Parties and except as provided in this clause 8.5, the Expert will decide the procedures to be followed to resolve the matters of disagreement.

(l)

The Expert must act as an expert and not as an arbitrator. Subject to clause 8.5(m), the Expert’s written determination will be final and binding on the parties in the absence of manifest error and the draft Completion Working Capital Statement will be deemed to be amended accordingly and will be taken to constitute the final Completion Working Capital Statement.

(m)

The Expert shall consider only such Disputed Matters that remain in dispute. For the avoidance of doubt, to the extent the Expert’s Report purports to make any determination with respect to anything other than the Disputed Matters and amounts submitted to the Expert, it shall be disregarded by the parties.

(n)

The cost of a determination by the Expert must be borne by GWI and the Co-Investor Parties in such manner as the Expert determines (having regard to the merits of the dispute).

(o)

If the President of the Institute of Arbitrators and Mediators Australia fails to appoint an Expert, either party may start court proceedings to resolve the Disputed Matters.

(p)

If the Expert fails to make a decision as to the Disputed Matters and provide it to GWI and the Co-Investor Parties within 30 Business Days of the date on which the Expert’s Report was due under clause 8.5(f) (including any extension agreed by the parties under that clause), either party may start court proceedings to resolve the Disputed Matters.

8.6

Adjustment Amount

If the amount of the Completion Working Capital is:

(a)

less than the Target Working Capital, GWI must pay to the Co-Investor Parties or their Nominees (in proportion to their Partnership Interests), an amount equal to 48.9% of the amount of the shortfall; or

(b)

greater than the Target Working Capital, the Co-Investor Parties or their Nominees (in proportion to their Partnership Interests) must pay to GWI , an amount equal to 48.9% of the amount equal to the excess.

8.7

Payment Date

(a)

A party required to make a payment to another party under this clause 8 must make the payment in immediately available funds within five Business Days after the finalisation of the Completion Working Capital Statement or the Expert’s determination (as applicable).

(b)

All amounts payable by a party under this clause 8 will be increased by an amount calculated corresponding to the interest accrued on a daily basis (using the 365 day count convention) calculated at the Interest Rate from (but excluding) the Completion Date to (and including) the date of payment of the relevant amount.

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9	GWI Warranties

9.1

GWI Warranties

GWI represents and warrants to the Co-Investor Parties that each of the GWI Warranties is true and correct.

9.2

Other warranties and conditions excluded

Except as expressly set out in this Agreement, all terms, conditions, warranties and statements, (whether express, implied, written, oral, collateral, statutory or otherwise) relating to the GWA Group or the Business are excluded to the maximum extent permitted by Law and, to the extent they cannot be excluded, GWI disclaims all Liability in relation to them to the maximum extent permitted by Law.

9.3

When warranties given

(a)

Unless otherwise provided for in the relevant GWI Warranty, each of the GWI Warranties are given as at the date of this Agreement and as at the time immediately before Completion.

(b)

Each of the GWI Warranties will remain in full force and effect after the Completion Date despite Completion.

9.4

Notification

GWI must disclose to the Co-Investor Parties anything which has or will constitute a material breach of a GWI Warranty or cause a GWI Warranty to be untrue or incorrect in any material respect, promptly after GWI becomes aware of it. This obligation applies from the date of this Agreement.

10	Qualifications and Limitations on Claims

10.1

Disclosures

Other than in respect of a Claim under the indemnity in clause 11.1, the Co-Investor Parties will not make a Claim and agrees that no member of the GWI Group will have any Liability (whether by way of damages or otherwise) to make any payment under or in connection with any provision of this Agreement (including any GWI Warranty) to the extent that the Claim is based on any fact, matter or circumstance:

(a)

provided for in this Agreement or any agreement entered into pursuant to or in connection with this Agreement;

(b)

Fairly Disclosed in the Disclosure Material;

(c)

relating to any Liability in respect of which there is an accrual, allowance, provision or reserve for that Liability specifically in the 2015 Audited Accounts, the 2015 Accounts or the 2016 Accounts;

(d)

within the actual knowledge of the following people:

(i)

Kieran Zubrinich;

(ii)

Matthew Sibbison;

(iii)

John Danieli;

(iv)

Gordon Taylor;

(v)

David Luboff;

(vi)

Grant Smith;

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Partnership Investment Agreement

(vii)

Samantha Brewer; and

(viii)

Francis Kwok; or

(e)

which would have been Fairly Disclosed to the Co-Investor Parties had the Co-Investor Parties conducted the following searches of the records open to public inspection maintained by:

(i)

ASIC, in respect of GWI Acquisitions Pty Ltd on 13 October 2016 and in respect of each other member of the GWA Group and GRail on 12 October 2016;

(ii)

Australian Personal Property Securities Register in respect of GWI Acquisitions Pty Ltd on 13 October 2016 and in respect of each other member of the GWA Group and GRail on 12 October 2016;

(iii)

the High Court of Australia, the Federal Court of Australia and the Supreme Courts in the Northern Territory, Western Australia, South Australia and New South Wales as follows:

(A)

in respect of GRail:

(1)

in the High Court of Australia, on 28 September 2016;

(2)

in the Federal Court of Australia, on 26 September 2016;

(3)

in the Supreme Courts of New South Wales, the Northern Territory, South Australia and Western Australia, on 28 September 2016; and

(B)

in respect of Genesee & Wyoming Australia Pty Ltd, Freightliner Australia Pty Ltd and Freightliner Coal Haulage Pty Ltd:

(1)

in the High Court of Australia, on 15 September 2016;

(2)

in the Federal Court of Australia, on 14 September 2016;

(3)

in the Supreme Courts of New South Wales and the Northern Territory on 16 September 2016;

(4)

in the Supreme Courts of South Australia and Western Australia, on 14 September 2016.

10.2

Liability caps and thresholds

(a)

( Maximum aggregate liability for all Claims )

(i)

Subject to paragraph (a)(ii), the maximum aggregate amount that each Co- Investor Party may recover (whether by way of damages or otherwise) in respect of:

(A)

Claims for breaches of Fundamental Warranties (other than the GWI Warranty in section 3.5 of Schedule 2 in respect of the Concession Deed) is 100% of that Co-Investor Party’s Partnership Contribution Amount; and

(B)

all Claims (other than Claims described in clause 10.2(a)(i)(A)) is 25% of that Co-Investor Party’s Partnership Contribution Amount.

(ii)

The maximum aggregate amount that the Co-Investor Parties may recover in respect of all and any Claims in any way relating to this Agreement or the transactions contemplated by it (whether by way of damages or otherwise) whenever made is 100% of the aggregate Partnership Contribution Amount of all Co-Investor Parties.

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Partnership Investment Agreement

(b)

( Thresholds ) Except in respect of the indemnity under clause 11.1, no member of GWI Group will be liable to make any payment (whether by way of damages or otherwise) for or in connection with any Claim:

(i)

if the amount finally adjudicated or agreed against GWI Group in respect of the Claim (or a series of Claims relating to the same or substantially similar facts, matters or circumstances or made in respect of the same warranty) is less than A$200,000; and

(ii)

until the total of all amounts finally adjudicated or agreed against GWI Group in respect of all Claims that would, but for this paragraph (b)(ii), be payable under paragraph (b)(i), exceeds A$2,000,000,

in which case the Co-Investor Parties will recover the full amount of such Claims, and not just the excess.

10.3

Claims and conditions of payment

Despite any other provision of this Agreement, each of the following applies in respect of this Agreement:

(a)

( Notice of Claims ):

(i)

No member of the GWI Group will be liable to make any payment (whether by way of damages or otherwise) for any Claim unless the Claim is made in writing by the Co-Investor Parties against GWI setting out full details (including details of the fact, circumstance or matter giving rise to the Claim, the nature of the Claim, the Co-Investor Parties’ calculation of the loss suffered) as soon as reasonably practicable after the Co-Investor Parties become aware of the fact, circumstance or matter on which the Claim is based and, in any event:

(A)

subject to paragraph (B), on or before the date that is 18 months after the Completion Date; or

(B)

where the Claim relates to a Tax Claim, on or before the date that is four years after the Completion Date, unless the Tax Claim relates to transfer pricing, in which case, on or before the date that is seven years after the Completion Date.

(b)

( Actions of the Co-Investor Parties ) GWI Group’s Liability in respect of any Claim to a Co-Investor Party will be reduced or extinguished (as the case may be) to the extent that the Claim has arisen as a result of any act or omission after Completion by or on behalf of that Co-Investor Party.

(c)

( Actions of GWI ) GWI Group’s Liability in respect of any Claim to a Co-Investor Party will be reduced or extinguished (as the case may be) to the extent that the Claim has arisen as a result of any act or omission by or on behalf of GWI Group where a Co-Investor Party has requested or consented or is taken to have consented to that act or omission under this Agreement.

(d)

( Credit ) If after a member of the GWI Group has made any payment to any Co-Investor Party for any Claim, a Co-Investor Party receives any benefit or credit by reason of matters to which the Claim relates then that Co-Investor Party must immediately repay to GWI a sum corresponding to the amount of the payment or (if less) the amount of the benefit or credit.

(e)

( No indirect loss ) No member of the GWI Group will be liable to make any payment (whether by way of damages or otherwise) to any Co-Investor Party in respect of any

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Partnership Investment Agreement

Claim for any Consequential Loss however arising, provided that nothing in this clause 10.3(e) shall operate to restrict or otherwise affect the entitlement of the Co-Investor Parties to compensation for any loss covered under the normal common law measure of damages (being damages which may fairly and reasonably be considered to arise naturally in the usual course of things from the breach) in order to compensate for direct loss actually suffered or incurred by the Co-Investor Parties and where a Court determines that the measure of damages shall include a diminution in the value of the Partnership Interests, GWI agrees not to object to such loss being calculated on the basis that the Co-Investor Parties’ valuation of the GWA Group was prepared using the discounted cash flow valuation methodology.

(f)

( No multiple Claims ) No member of the GWI Group will be liable to make any payment (whether by way of payment of damages or otherwise) for any Claim to the extent that a Co-Investor Party recovers, or is compensated for Liability arising out of any fact, matter or circumstance giving rise to the Claim, under an agreement entered into pursuant to this Agreement. This clause does not prevent the Co-Investor Party entitled to make a Claim under any agreement entered into pursuant to this Agreement from commencing that Claim. However, if for any reason more than one amount is paid in respect of the same Liability, the Co-Investor Party must ensure that the additional amount is immediately repaid to GWI.

(g)

( General limitations ) No member of GWI Group will be liable to make any payment (whether by way of payment of damages or otherwise) for any Claim to the extent that any Liability:

(i)

( breach of Law or contract ) could only have been avoided by a member of the GWI Group breaching its obligations at Law or under this Agreement or an agreement entered into pursuant to this Agreement;

(ii)

( change in Law or interpretation ) arises from:

(A)

any legislation not in force at the date of this Agreement including legislation which takes effect retrospectively;

(B)

a change in the judicial interpretation of the Law in any jurisdiction after the date of this Agreement; or

(C)

a change in the administrative practice of any Governmental Agency after the date of this Agreement including any change which takes effect retrospectively;

(iii)

( legal costs ) is an amount on account of legal costs which were not reasonably incurred by the Co-Investor Parties; or

(h)

( remediable loss ) is remediable, provided it is remedied to the satisfaction of the Co-Investor Parties, acting reasonably, within 30 Business Days after GWI receives written notice of the Claim in accordance with clause 10.3(a).

10.4

Co-Investor Parties’ acknowledgments

Each Co-Investor Party acknowledges and agrees that:

(a)

except as expressly set out in this Agreement, no member of the GWI Group nor any other person acting on behalf of or associated with the GWI Group and their respective Representatives has made any representation, given any advice or given any warranty or undertaking, promise or forecast of any kind in relation to the Partnership Interests, the GWA Group, the Business, GRail or its business, the Disclosure Material or this Agreement;

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Partnership Investment Agreement

(b)

without limiting paragraph (a), no representation, no advice, no warranty, no undertaking and no promise is given in relation to:

(i)

any economic, fiscal or other interpretations or evaluations by GWI or any person acting on behalf of or associated with GWI or any other person;

(ii)

future matters, including future or forecast costs, production, prices, revenue, profits or performance;

(iii)

any forward-looking statements, plans, estimates, forecasts or projections that are included in the Disclosure Material ( Estimates and Forecasts ) including the assumptions on which they are based, and the Co-Investor Parties acknowledges that such Estimates and Forecasts are inherently uncertain and that actual future results and performance may vary from that anticipated in the Estimates and Forecasts and such variations may be material;

(iv)

the principles to be applied by Governmental Agencies with respect to the regulation of the mining industry or any part of it and, in particular, matters affecting production, revenue, labour costs, prices and charges and service levels; or

(v)

the regulation of the rail industry (including any act or omission by any Governmental Agency) and other industries (and the relationship of such other industry regulation to the regulation of the rail industry);

(c)

without limiting paragraphs (a) or (b), and except for the statements made in this Agreement (including GWI’s Warranties), no statement or representation:

(i)

has induced or influenced that Co-Investor Party to enter into this Agreement or agree to any or all of its terms;

(ii)

has been relied on in any way as being accurate by that Co-Investor Party;

(iii)

has been warranted to that Co-Investor Party as being true; or

(iv)

has been taken into account by that Co-Investor Party as being important to that Co-Investor Party’s decision to enter into this Agreement or agree to any or all of its terms; and

(v)

it has competently and diligently carried out all relevant investigations and has examined and acquainted itself concerning:

(A)

the contents, correctness and sufficiency of the Disclosure Material;

(B)

the risks, contingencies and other circumstances which could affect its decision to enter into this Agreement; and

(C)

all amounts payable by the parties under this Agreement.

10.5

Release

To the extent permitted by Law, each Co-Investor Party releases each Indemnified Party from, and agrees not to make, and waives any right it might have to make, any Claim against any Indemnified Party in relation to anything referred to in clause 10.4.

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Partnership Investment Agreement

10.6

Mitigation of Liability

(a)

Each Co-Investor Party must:

(i)

take all reasonable actions to mitigate any Liability that may give rise to a Claim; and

(ii)

not omit to take any reasonable action that would mitigate any Liability that may give rise to a Claim.

(b)

If a Co-Investor Party does not comply with clause 10.6(a) and compliance with clause 10.6(a) would have mitigated the Liability, GWI is not liable to that Co-Investor Party for the amount by which the Liability would have been reduced.

10.7

Statutory actions

(a)

To the maximum extent permitted by Law, each Co-Investor Party agrees not to make and waives any right it might have to make any Claim against any member of the GWI Group or any of their respective Representatives, whether in respect of GWI’s Warranties, or otherwise, under:

(i)

Part 7.10 of the Corporations Act;

(ii)

the Australian Securities and Investments Commission Act 2001 (Cth) in connection with a breach of section 12DA of that Act;

(iii)

the Australian Consumer Law (as contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and equivalent State and Territory fair trading legislation); or

(iv)

any corresponding or similar provision of any Australian State or Territory legislation or any similar provision of any legislation in any relevant jurisdiction or any other applicable Laws,

(each a Statutory Claim ).

(b)

Each Co-Investor Party indemnifies and agrees to hold harmless GWI and its Representatives and each other member of the GWI Group and their Representatives (each an Indemnified Party ) from and against all Liability arising directly or indirectly from or in connection with a Statutory Claim made against any member of the GWI Group by that Co-Investor Party. GWI holds the benefit of this clause 10.7(b) on trust for each other Indemnified Party to the extent this clause 10.7(b) applies to those Indemnified Parties and is entitled to enforce this clause 10.7(b) on behalf of the other Indemnified Parties.

10.8

Proceedings in respect of a Claim

Unless GWI otherwise agrees, any Claim by a Co-Investor Party against any member of the GWI Group will be taken to be waived or withdrawn and will be barred and unenforceable (if such Claim has not been previously satisfied, settled or withdrawn) unless legal proceedings in respect of the Claim have been issued and served on GWI within 6 months of the service of the notice of such Claim on GWI under clause 10.3(a) and for this purpose legal proceedings will not be deemed to have been commenced unless they have been properly issued and validly served on GWI.

10.9

Insurance and recovery under any other right

(a)

No member of the GWI Group will be liable to a Co-Investor Party under a Claim to the extent that, in respect of any fact, matter or circumstance which gives or may give rise to a Claim, that Co-Investor Party:

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Partnership Investment Agreement

(i)

is entitled to claim, from a person other than a member of the GWI Group, an indemnity against any loss or damage suffered by the Co-Investor Party, or is entitled to claim under the terms of any insurance policy of or applicable to that Co-Investor Party in respect of that fact, matter or circumstance to which the Claim relates; or

(ii)

is otherwise entitled to recover from a person other than a member of the GWI Group in respect of any loss or damage suffered by that Co-Investor Party arising out of the fact, matter or circumstance to which the Claim relates.

(b)

If, after any member of the GWI Group has made a payment to a Co-Investor Party pursuant to a Claim, a that Co-Investor Party receives a payment or benefit from another person (including an insurer) in respect of the fact, matter or circumstance to which the Claim relates, that Co-Investor Party must repay to GWI the amount received from the member of the GWI Group or, if less, the amount of the payment or benefit received by that Co-Investor Party.

10.10

Remedies for breach of warranties

Each Co-Investor Party acknowledges that its sole remedy for a breach of GWI’s Warranty is damages and it has no right to terminate or cancel this Agreement (whether before or after Completion) as a result of any matter, information or circumstance, including for misrepresentation, repudiation, anticipatory breach or breach or for or in respect of any matter giving rise to or the subject of a Claim.

10.11

No Liability where breach

Without limiting the operation of any other provision of this Agreement, GWI’s Liability to a Co- investor Party in respect of any breach of any GWI Warranty or any provision of this Agreement will be reduced or extinguished to the extent that its position is prejudiced or compromised by any breach by the Co-Investor Party of any provision of this Agreement.

10.12

Independent limitations

Each qualification and limitation in this clause 10 is to be construed independently of the others and is not limited by any other qualification or limitation.

10.13

Fraud

The limitations in clause 10 do not apply in relation to any Claim under or in connection with this Agreement arising out of the fraud of GWI or its Representatives.

10.14

Reduction of the Partnership Contribution Amount

Any amount (whether by way of damages or otherwise) received by a Co-Investor Party as compensation for any breach by GWI of this Agreement will be in reduction and as a reimbursement of that Co-Investor Party’s Partnership Contribution Amount.

10.15

Benefit of Clause 10

GWI holds on trust for each other member of the GWI Group the benefit of this clause 10 and is entitled to enforce this clause 10 on behalf of each other member of the GWI Group.

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Partnership Investment Agreement

11	Tax indemnity

11.1	Tax indemnity

GWI indemnifies the Co-Investor Parties and must pay to the Co-Investor Parties an amount equal to 48.9% of:

(a)

any Taxes payable by any member of the GWA Group under a Tax Notice (whether payable before, on or after Completion), to the extent that the Tax relates to:

(i)

any period or part period, up to and including Completion; and

(ii)

any of:

(A)

the loan made by GWI International BV to the GWA Partnership;

(B)

the loan made by GWI Holdings Pty Ltd to GWI UK Acquisition Company Limited; or

(C)

the CP Restructuring Steps; and

(b)

all reasonable costs and expenses incurred by any member of the GWA Group in managing an inquiry or conducting any disputing action, to the extent that those Tax costs arise from or relate to any of the matters for which GWI is liable under clause 11.1(a),

except to the extent relating to any Liability in respect of which there is an accrual, allowance, provision or reserve for that Liability specifically in the 2015 Audited Accounts, 2015 Accounts or the 2016 Accounts or to extent provided for in the Completion Working Capital Adjustment.

12	Co-Investor Party Warranties

12.1

Co-Investor Party Warranties

(a)

Each Co-Investor Party represents and warrants in respect of itself to GWI that, as at the date of this Agreement and at Completion, each of the Co-Investor Party Warranties is correct.

(b)

Each Co-Investor Party that is a trust, represents and warrants in respect of itself that, as at the date of this Agreement and at Completion, each of the Trustee Warranties is correct.

12.2

Continued operation

The Co-Investor Party Warranties will remain in full force and effect after the Completion Date despite Completion.

13	Confidentiality

13.1

Confidentiality

(a)

Subject to clause 13.2, and without limiting the Confidentiality Arrangement, a party must not disclose, or use for a purpose other than contemplated by this Agreement, the existence of and terms of this Agreement or any unpublished information or documents supplied by the other party in connection with this Agreement ( Confidential Information ).

(b)

Subject to clause 13.2, a party may not make any public announcement relating to this Agreement or the Partnership Transaction (including the fact that the parties have executed this Agreement) unless the other parties (acting reasonably) have consented to the announcement, including the form and content of that disclosure.

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Partnership Investment Agreement

13.2

Permitted disclosure

(a)

A party may disclose any Confidential Information:

(i)

to the other party to this Agreement;

(ii)

to its Related Bodies Corporate;

(iii)

to its investors and potential investors where disclosure is required for the purposes of raising further funds by the party or reporting obligations to its investors;

(iv)

in the case of the Co-Investor Parties, to PGGM and its Representatives;

(v)

under corresponding obligations of confidence as imposed by this clause, to its legal and financial advisors and auditors;

(vi)

which is at the time lawfully in the possession of the proposed recipient of the Confidential Information through sources other than the other party to this Agreement;

(vii)

in enforcing this Agreement or in a proceeding arising out of or in connection with this Agreement or to the extent that disclosure is regarded by it acting reasonably as necessary to protect its interests;

(viii)

if required under a binding order of a Governmental Agency or under a procedure for discovery in any proceedings;

(ix)

if required under any Law or any administrative guideline, directive, request or policy (including administrative guidelines, directives, requests or policies of a Governmental Agency) whether or not having the force of Law and, if not having the force of Law, the observance of which is in accordance with the practice of responsible corporate entities;

(x)

as required or permitted by this Agreement; or

(xi)

with the prior consent of the other party to this Agreement.

13.3

Survival of obligation

This clause survives the termination of this Agreement.

GST

14.1

Definitions

Unless the context requires otherwise, words and phrases used in this clause 14 that have a specific meaning in the GST Law (as defined in the GST Act) will have the same meaning in this clause 14.

14.2

Recovery of GST

If GST is payable, or notionally payable, on a supply made under, by reference to or in connection with this Agreement, the party providing the consideration for that supply must pay as additional consideration an amount equal to the amount of GST payable, or notionally payable, on that supply (the GST Amount ). Subject to the prior receipt of a tax invoice, the GST Amount is payable at the same time that the other consideration for the supply is provided. This clause does not apply to the extent that the consideration for the supply is expressly stated to be GST inclusive or the supply is subject to reverse charge.

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Partnership Investment Agreement

14.3

Liability net of GST

Where any indemnity, reimbursement or similar payment under this Agreement is based on any cost, expense or other liability incurred, it will be reduced by any input tax credit entitlement, or notional input tax credit entitlement, in relation to the relevant cost, expense or other liability.

14.4

Adjustment events

If an adjustment event occurs in relation to a supply made under or in connection with this Agreement, the GST Amount will be recalculated to reflect that adjustment and an appropriate payment will be made between the parties.

14.5

Survival

This clause will not merge upon completion and will continue to apply after the expiration or termination of this Agreement.

15	General

15.1

Limitation of liability of the Trustees

(a)

Each Trustee enters into this Agreement in its capacity as trustee of the Relevant Trust and in no other capacity.

(b)

The parties acknowledge that each Trustee incurs the relevant Trustee Liabilities solely in its capacity as trustee of the Relevant Trust.

(c)

Subject to sub clause 15.1(e), a Trustee Liability may be enforced against the relevant Trustee only to the extent to which:

(i)

the Trustee is actually indemnified in respect of that Trustee Liability out of the property of the Relevant Trust; and

(ii)

there is sufficient property held by the Trustee as trustee at the time, which is available to meet that indemnity (after all Trust assets have been allocated to meet the indemnity and any other valid claims).

(d)

Subject to sub clause 15.1(e), no person will be entitled to:

(i)

claim from or commence proceedings against the Trustee in respect of any Trustee Liability in any capacity other than as trustee of the Relevant Trust;

(ii)

enforce or seek to enforce any judgment in respect of any Trustee Liability against any property of the Trustee other than property held by the Trustee as trustee of the Relevant Trust;

(iii)

take any steps to procure or support the appointment of a liquidator, administrator or any other similar office holder to the Trustee on the basis of a Trustee Liability, or prove in any liquidation, administration or arrangement of or affecting the Trustee; or

(iv)

in respect of a Trustee Liability, appoint or take any steps to procure or support the appointment of a receiver or receiver and manager to any property of the Trustee, other than property which is held by it in its capacity as trustee of the Relevant Trust.

(e)

The restrictions in clauses 15.1(c) and 15.1(d) do not apply to any Trustee Liability to the extent to which there is, whether under the constituent documents of the relevant Trust or by operation of Law, a reduction in the extent of the Trustee’s indemnification, or in respect of which the Trustee is not entitled to be indemnified, out of the property of the Relevant Trust, as a result of the Trustee’s fraud, gross negligence or breach of trust.

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Partnership Investment Agreement

(f)

The liability of a Trustee for the purposes of clause 15.1(e) will be reduced to the extent to which the act or omission was caused or contributed to by any failure of any other party to fulfil its obligations relating to the Relevant Trust or by any other act or omission of any other Party.

(g)

No attorney, agent or other person appointed in accordance with this document has authority to act on behalf of the Trustee in its personal capacity a way which exposes the Trustee to any personal liability, and no act or omission of such a Person will be considered fraud, gross negligence or breach of trust of the Trustee for the purposes of clause 15.1(e).

(h)

This limitation of the Trustee’s Liability applies despite any other provisions of this document and extends to all Trustee Liabilities of the Trustee in any way connected with any representation, warranty, conduct, omission, agreement or transaction related to this Agreement or its performance.

15.2

Claims against PGGM LP

As PGGM Infrastructure Fund 2016 is not a partnership ( personenvennootschap ) nor a legal entity ( rechtspersoon ) under Dutch law, any claims against the PGGM Infrastructure Fund 2016 and / or the PGGM LP are against the PGGM LP as such, and not against the participants in the PGGM Infrastructure Fund 2016 who, accordingly, are not liable for these claims. Recourse for such claims shall be limited to the assets held by PGGM LP on behalf of the PGGM Infrastructure Fund 2016.

15.3

Entire agreement

This Agreement contains the entire agreement between the parties with respect to its subject matter. It sets out the only conduct, representations, warranties, covenants, conditions, agreements or understandings (collectively Conduct ) relied on by the parties and supersedes all earlier Conduct by or between the parties in connection with its subject matter. None of the parties has relied on or is relying on any other Conduct in entering into this Agreement and completing the transactions contemplated by it.

15.4

Governing law

This Agreement is governed by the Laws of South Australia. In relation to it and related non- contractual matters each party irrevocably submits to the non-exclusive jurisdiction of courts with jurisdiction in Australia, and waives any right to object to the venue on any ground.

15.5

Amendment

This Agreement may be amended only by another agreement executed by all the parties.

15.6

Costs and duty

(a)

Unless otherwise agreed in writing between the parties, each party must bear its own costs arising out of the negotiation, preparation and execution of this Agreement.

(b)

All duty (including stamp duty and any fines, penalties and interest) that may be payable on or in connection with:

(i)

the Partnership Transaction, must be borne by the Co-Investor Parties;

(ii)

the CP Restructuring Steps, must be borne by GWI;

(iii)

the debt refinancing, must be borne by the relevant member of the GWA Group; and

(iv)

the GRail Transaction, must be borne by GWI Acquisitions Pty Ltd.

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Partnership Investment Agreement

15.7

Remedies Cumulative

The rights, powers and remedies provided in this Agreement are in addition to, and do not exclude or limit, any right, power or remedy provided by law or equity or by any agreement.

15.8

Notices

Any notice, demand, consent or other communication (a Notice ) given or made under this Agreement:

(a)

must be in writing and signed by the sender or a person duly authorised by the sender (or in the case of email, set out the full name and position or title of the sender or person duly authorised by the sender);

(b)

must be delivered to the intended recipient by prepaid post (if posted to an address in another country, by registered airmail) or by hand, fax or email to the address, fax number or email address below or the address, fax number or email address last notified by the intended recipient to the sender:


(i)	to GWI:	Genesee & Wyoming Inc.

		Address: 20 West Avenue, Darien, Connecticut 06820, U.S.A.

		Fax No.: +1 203 656 1092

		Attention: General Counsel

(ii)	to MAIF LP:	Macquarie Specialised Asset Management Limited as trustee for MAIF Investment Trust

		Address: Level 6, 50 Martin Place, Sydney, New South Wales, 2000

		Fax No: +61 2 8232 6510

		Attention: Christine Williams / David Anderson

		With a copy to:

		Macquarie Asia Infrastructure Fund Management Limited

		Address: PO Box 1093 Queensgate House, Grand Cayman KY1-1102, Cayman Islands

		Fax: +13459457100

		Email: cayman@maplesfs.com

		Attention: Company Secretary

(iii)	to MAIT LP	Macquarie Australian Infrastructure Management 1 Limited as trustee for Macquarie Australian Infrastructure Trust 1

		Address: Level 6, 50 Martin Place,
		Sydney, New South Wales, 2000

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Partnership Investment Agreement


		Fax No: +61 2 8232 6510

		Email: miralegal@macquarie.com

		Attention: Company Secretary

(iv)	MIRA GP	Scissor Holdings Pty Ltd

		Address: Level 6, 50 Martin Place, Sydney, New South Wales, 2000 [

		Fax No: +61 2 8232 6510

		Email: miralegal@macquarie.com

		Attention: Company Secretary

(v)	PGGM LP	Stichting Depositary PGGM Infrastructure Funds, acting in its capacity as title holder of PGGM Infrastructure Fund 2016

		Attention: Han Claessens and Erik van den Berg

		Address: Noordweg Noord 150, 3704 JG Zeist, The Netherlands

		Email: Han.Claessens@pggm.nl / Erik.van.den.Berg@pggm.nl

(c)

will be conclusively taken to be duly given or made:

(i)

in the case of delivery in person, when delivered;

(ii)

in the case of delivery by post, 6 Business Days after the date of posting (if posted to an address in the same country) or ten days after the date of posting (if posted to an address in another country);

(iii)

in the case of fax, on receipt by the sender of a transmission control report from the despatching machine showing the relevant number of pages and the correct destination fax number or name of recipient and indicating that the transmission has been made without error; and

(iv)

in the case of email, the earlier of:

(A)

the time that the sender receives an automated message from the intended recipient’s information system confirming delivery of the email;

(B)

the time that the email is first opened or read by the intended recipient, or an employee or officer of the intended recipient; and

(C)

two hours after the time the email is sent (as recorded on the device from which the sender sent the email) unless the sender receives, within that two hour period, an automated message that the email has not been delivered,

but if the result is that a Notice would be taken to be given or made:

(v)

in the case of delivery by hand, post or fax, at a time that is later than 5pm;

(vi)

in the case of delivery by email, at a time that is later than 7pm; or

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Partnership Investment Agreement

(vii)

on a day that is not a business day,

in the place specified by the intended recipient as its postal address under clause 15.8(b), it will be conclusively taken to have been duly given or made at the start of business on the next business day in that place.

15.9

No Merger

The rights and obligations of the parties will not merge on the completion of any transaction contemplated by this Agreement. They will survive the execution and delivery of any assignment or other document entered into for the purpose of implementing any such transaction.

15.10

Assignment

No party can assign, charge, encumber or otherwise deal with any rights and obligations under this Agreement (an Assignment ), or attempt or purport to do so, without the prior written consent of:

(a)

in the case of an Assignment by GWI, the Co-Investor Parties; and

(b)

in the case of an Assignment by a Co-Investor Party, GWI.

15.11

Further Assurances

Each party must do anything (including executing agreements and documents) reasonably necessary to give full effect to this Agreement and the transactions contemplated by it.

15.12

No Waiver

No failure to exercise nor any delay in exercising any right, power or remedy under this Agreement operates as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.

15.13

Service of process

(a)

Without preventing any other mode of service, any document in an action (including, any writ of summons or other originating process or any third or other party notice) may be served on any party by being delivered to or left for that party at its address for service of notices under clause 15.8.

(b)

GWI irrevocably appoints GWIH2 as its agent for the service of process in Australia in relation to any matter arising out of this Agreement. If GWIH2 ceases to be able to act as such or have an address in Australia, GWI agrees to appoint a new process agent in Australia and deliver to the other parties within 2 Business Days a copy of a written acceptance of appointment by the process agent, upon receipt of which the new appointment becomes effective for the purpose of this agreement. GWI must inform the other parties in writing of any change in the address of its process agent within 2 Business Days of the change.

15.14

Severability of Provisions

Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.

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Partnership Investment Agreement

15.15

Counterparts

This Agreement may be executed in any number of counterparts. All counterparts together will be taken to constitute one instrument.

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Partnership Investment Agreement

Schedule 1

GWA Group

G&W Australia Holdings LP (Australian limited partnership)

GWI Acquisitions Pty Ltd

GWI Holdings No. 2 Pty Ltd

GWA (North) Pty Ltd

GWI Holdings Pty Ltd

Genesee & Wyoming Australia Pty Ltd

Viper Line Pty Limited

S A Rail Pty Limited

Genesee & Wyoming Australia Eastern Pty Ltd

ARG Sell Down Holdings Pty Limited

ARG Sell Down No1 Pty Limited

ARG Sell Down No2 Pty Limited

GWA Holdings Pty Limited

GWA Northern Pty Limited

GWA Operations North Pty Limited

Freightliner Australia Pty Limited

FLA Coal Services Pty Limited

Freightliner Australia Coal Haulage Pty Ltd


Partnership Investment Agreement

Schedule 2

GWI Warranties

1	Incorporation and Authorisation

1.1

Incorporation

(a)

GWI is duly incorporated and validly exists under the Law of its place of incorporation.

(b)

GWI is not insolvent and no receiver has been appointed over any part of its assets and no such appointment has been threatened in writing.

(c)

GWI is not in liquidation or official management and no proceedings have been brought or threatened for the bona fide purpose of winding up GWI or placing it under official management.

(d)

No administrator has been appointed to GWI nor has any deed of company arrangement been executed or proposed in respect of GWI.

(e)

To the best of GWI’s knowledge, there are no facts, matters or circumstances which give any person the right to apply to liquidate or wind up GWI or place GWI under official management.

1.2

Due authorisation

(a)

The execution and delivery of this Agreement has been properly authorised by all necessary corporate action of GWI.

(b)

GWI has full corporate power and lawful authority to execute and deliver this Agreement and to consummate and perform or cause to be performed its obligations under this Agreement and each transaction contemplated by this Agreement to be performed by it.

(c)

This Agreement constitutes a legal, valid and binding obligation of GWI, enforceable in accordance with its terms by appropriate legal remedy.

(d)

The execution, delivery and performance by GWI of this Agreement and each transaction contemplated by this Agreement does not or will not (with or without the lapse of time, the giving of notice or both) contravene, conflict with or result in a breach of or default under:

(i)

any provision of the constitution of GWI;

(ii)

any material term or provision of any security arrangement, undertaking, agreement or deed; or

(iii)

any writ, order or injunction, judgement, Law, rule or regulation to which it is a party or is subject or by which it is bound.

2	Title Warranties

2.1

Partnership

(a)

Prior to Completion;

(i)

GWI Holding BV; and

(ii)

until the date of transfer of the interests of GWI International BV to GWA GP NewCo, GWI International BV; or

(iii)

on and from the date of transfer of the interests of GWI International BV to GWA GP NewCo, GWA GP NewCo,


Partnership Investment Agreement

are the only partners of the GWA Partnership and their respective interests in the GWA Partnership are GWI International BV 1% and GWI Holding BV 99%.

(b)

Other than as specified in this Agreement there has been no offer to admit any other entities to the GWA Partnership.

(c)

On Completion, the Co-Investor Parties or their Nominees will be issued with the full legal and beneficial title to the Partnership Interests free and clear of any Security Interest or claim of any person.

3	General Warranties

3.1

Disclosure Material

(a)

The Disclosure Material was prepared in good faith and with reasonable care by GWI.

(b)

To the best of GWI’s knowledge, the Disclosure Material is accurate and not misleading in all material respects and contains all information:

(i)

that is material to the Business; or

(ii)

relating to the Business that, to the best of GWI’s knowledge, would be material to a decision to proceed with, and the terms of, the subscription contemplated by clause 5 of this Agreement (but excluding making the GRail Bid or entering into the GRail Transaction) by the Co-Investor Parties.

(c)

GWI has not deliberately omitted anything from the Disclosure Material that is material to:

(i)

the assets owned and the business operated by GRail;

(ii)

the GWA Group’s decision to proceed with, and the terms of, the GRail Bid or the GRail Transaction; or

(iii)

GRail’s ability to perform its obligations under the Rail Haulage Agreement, on and from GRail Completion.

3.2

The GWA Group

(a)

Each member of the GWA Group (other than the GWA Partnership) is duly incorporated and validly exists under the Laws of the place of its incorporation.

(b)

Each GWA Group member has full corporate power and lawful authority to own its assets and carry on the Business as it is being carried on as at Completion.

(c)

Other than as Fairly Disclosed in the Disclosure Material, as at Completion:

(i)

no loans will be owing by the GWA Group to any member of GWI Group (excluding members of the GWA Group) on any account, except as provided for in this Agreement; and

(ii)

no GWA Group member is party to any guarantee (including any cross guarantee) in favour of a third party that is not a GWA Group member.

(d)

No GWA Group member is insolvent and no receiver has been appointed over any part of the assets of the GWA Partnership or any GWA Group member and no such appointment has been threatened in writing.

(e)

No GWA Group member is in liquidation or official management and no proceedings have been brought or threatened for the bona fide purpose of winding it up or placing it under official management.


Partnership Investment Agreement

(f)

To the best of GWI’s knowledge, there are no facts, matters or circumstances which give any person the right to apply to liquidate or wind up any GWA Group member or place any GWA Group member under official management.

(g)

The affairs of the each GWA Group member has been conducted in accordance with the relevant entity’s constituent documents.

(h)

Other than as Fairly Disclosed in the Disclosure Material, no person has any right, including a contractual right, an option, a right of first refusal, a right of pre-emption or other right, to acquire or to restrain any person from acquiring any shares or other securities in the capital of any member of the GWA Group that has not been waived.

(i)

The following members of the GWA Group are dormant and have not, in the 12 months prior to Completion, carried on any business or undertaken any activities:

(i)

GWA Holdings Pty Limited;

(ii)

GWA Operations North Pty Limited;

(iii)

ARG Sell Down No2 Pty Limited;

(iv)

ARG Sell Down Holdings Pty Limited;

(v)

ARG SellDown No1 Pty Ltd; and

(vi)

GWA Northern Pty Ltd.

3.3

Assets of GWA Group

(a)

As at the date the fixed asset register contained in the Data Room was prepared, each asset listed in that fixed asset register is the absolute property of, and legally and beneficially owned by, and under the possession or control of, the GWA Group member except for:

(i)

any Permitted Security Interest; or

(ii)

any item Fairly Disclosed in the Disclosure Material as being subject to hire purchase, lease or rental agreements,

and since the date of the fixed asset register contained in the Data Room there has been no disposal of any material assets.

(b)

No notice has been served on the GWA Partnership or a GWA Group member by any Governmental Agency which might materially impair, prevent or otherwise interfere with the GWA Partnership’s or the GWA Group member’s use of or proprietary rights in any of the assets listed in the fixed asset register contained in the Data Room.

(c)

Maintenance contracts are in full force and effect in respect of all items of Plant and Equipment which it is normal or prudent to have maintained by outside or specialist contractors.

(d)

The Plant and Equipment comprise all plant and equipment with a value of A$200,000 or more that are necessary to operate the Business.

3.4

Property

(a)

Except as Fairly Disclosed in the Disclosure Material:

(i)

the GWA Group has exclusive enjoyment and occupation of the Property Title;

(ii)

all right, title and interest in the Property Title is held by GWA Group free and clear of any Security Interest (except for any Permitted Security Interest);


Partnership Investment Agreement

(iii)

no GWA Group member has entered into any arrangement with any other party in relation to the Leases which might materially impair, prevent or otherwise interfere with the GWA Partnership’s or the GWA Group’s use or enjoyment of any of the Leases;

(iv)

there is no material default by the GWA Group under the Leases;

(v)

a GWA Group member has not knowingly waived in writing any material breach of covenant, material obligation or material restriction in favour of the GWA Partnership or a GWA Group member under the Leases which might materially impair, prevent or otherwise interfere with the GWA Partnership’s or the GWA Group’s use or enjoyment of any of the Leases; and

(vi)

to the best of GWI’s knowledge, each Lease is valid, subsisting and enforceable against the other counterparty listed in the relevant Lease and binding on the parties to it, in accordance with its terms.

(b)

No notices have been received by the GWA Partnership or a GWA Group member from, and to the best of GWI’s knowledge, there are no orders, declarations, reports, recommendations or proposals of, a Governmental Agency which would materially affect the use of the Property Title or the Leases (present or future) or require the doing of material works or expenditure of money in material amounts in relation to the Property Title or Leases.

(c)

To the best of GWI’s knowledge, no notice has been issued by any Governmental Agency or proceedings instituted in a court pursuant to any statute whereby the interest in the Property Title or Leases may be rendered liable to forfeiture to the Crown.

(d)

Apart from the Property Title and the Leases, the GWA Group does not own or lease any land within Australia.

3.5

Material contracts

To the best of GWI’s knowledge:

(i)

no party to a Contract has done or permitted to be done or failed to do anything that is a material breach or default under a Contract or would be likely to cause any of the Contracts to be terminated or give an other party to the Contract the right to claim damages;

(ii)

each Contract is valid, binding and enforceable against each other counterparty to that Contract, in accordance with its terms;

(iii)

no party to a Contract will, or is likely to cease or materially reduce its trading with the GWA Partnership or a GWA Group member as a result of the Partnership Transaction;

(iv)

there has been no failure by GWI or any member of GWA Group that is a party to a Contract to comply with a material obligation under any of the Contracts that would have a material adverse effect on the GWA Group; and

3.6

Native title and Aboriginal land rights

(a)

No member of the GWA Group has suffered:

(i)

any material Liabilities as a result of any Native Title or Aboriginal Land Rights Issue in relation to any Property Title or Leases; or

(ii)

any impact as a result of a Native Title or Aboriginal Land Rights Issue on the validity or otherwise of any Property Title or Leases.


Partnership Investment Agreement

(b)

To the best of GWI’s knowledge:

(i)

there is no Native Title or Aboriginal Land Rights Issue in respect of the Business which would materially prevent, hinder, disrupt, delay or interfere with the carrying out of the Business; and

(ii)

there are no circumstances that GWI is aware of which are reasonably likely to give rise to a future Native Title or Aboriginal Land Rights Issue in respect of the Business which would materially prevent, hinder, disrupt, delay or interfere with the carrying out of the Business.

3.7

Approvals, Environment and Safety

(a)

The GWA Group holds all material licences, authorisations and permits from relevant Governmental Agencies necessary or desirable to own the assets and carry on all aspects of the Business.

(b)

The Rail Accreditations have not lapsed, been cancelled, forfeited, surrendered or suspended or have otherwise ceased to have effect.

(c)

GWI is not aware of any fact, matter or circumstance that GWI considers, acting reasonably, would result in the cancellation, forfeiture, surrender or suspension of the Rail Accreditations or the imposition of any material new or varied conditions under the Rail Accreditations.

(d)

The GWA Partnership and the members of the GWA Group have each complied in all material respects with Environmental Law.

(e)

The GWA Group has not received written notice of any civil, criminal or administrative claims, demands, actions, suits or orders from a Governmental Agency or a third party:

(i)

under Environmental Law applicable to the Business; or

(ii)

in relation to the Rail Accreditations.

(f)

To the best of GWI’s knowledge:

(i)

there are no outstanding requirements for material payments or capital expenditure under any licence, authorisation or permit from a relevant Governmental Agency held by the GWA Group; and

(ii)

there is no threatened civil, criminal or administrative claim, demand, action, suit or order from a Governmental Agency or a third party:

(A)

under Environmental Law applicable to the Business; or

(B)

in respect of the Rail Accreditations,

in each case, that would be prejudicial to the owner of the Business.

(g)

Other than as Fairly Disclosed in the Disclosure Material, to the best of GWI’s knowledge, there is no Contamination in, on, under or emanating from any of the land occupied or controlled by a member of the GWA Group that would have a material adverse impact on the Business.

(h)

There are no outstanding material notices or prosecutions issued against any member of the GWA Group by any workplace safety authority and full details of all material incidents which might potentially give rise to occupational health and safety notices or prosecutions have been Fairly Disclosed in the Disclosure Material.


Partnership Investment Agreement

3.8

Insurance

All insurance required by law or by the terms of any Contract to be effected by each member of the GWA Group has been effected, is current and in force and to the best of GWI’s knowledge, no fact or circumstance exists that would render any such insurance void, voidable or unenforceable in any material respect.

3.9

Employees

(a)

Each member of the GWA Group has paid all material amounts due and payable under Law or a relevant employment contract, to each Employee (and each former Employee) employed by that member of the GWA Group.

(b)

There is no industrial dispute affecting the Employees and, to the best of GWI’s knowledge, none will arise as a result of the transactions contemplated by this Agreement.

(c)

The Disclosure Material contains a copy of all:

(i)

agreements, arrangements and understandings or award based transitional instruments;

(ii)

Fair Work Australia approved enterprise agreements; and

(iii)

modern awards,

within the meaning of the Fair Work Act 2009 and associated regulations to which any GWA Group member is a party and/or which relate to the remuneration and benefits of the Employees.

(d)

In respect of each Employee (and each former Employee), each member of the GWA Group has complied with in all material respects and has not received any written notice of any material breach by that GWA Group member of, its legal or contractual obligations in relation to any of the Employees employed by that member of the GWA Group.

(e)

No member of the GWA Group has any knowledge of grounds for dismissal of any Employee in respect of any facts, matter or circumstances which may have a material adverse impact on the reputation of the GWA Group, nor is under or likely to be under any obligation to reinstate or reemploy any former Employee.

(f)

No member of the GWA Group is involved in or, to the best of GWI’s knowledge is the subject of any pending, threatened or anticipated regulatory investigation or prosecution regarding any Claims by an Employee or former Employee.

3.10

Financial position

(a)

The 2015 Audited Accounts were prepared in accordance with the Accounting Standards applied on a consistent basis.

(b)

All material liabilities of the GWA Group:

(i)

as at 31 December 2015 are disclosed in or taken into account in the 2015 Accounts; and

(ii)

as at the 30 June 2016, are disclosed in or taken into account in the 2016 Accounts.

(c)

The 2015 Accounts accurately reflect in all material respects the assets and material liabilities and profits and losses of the GWA Group as at 31 December 2015.

(d)

The 2016 Accounts accurately reflect in all material respects the asset and material liabilities and profits and losses of the GWA Group as at 30 June 2016.


Partnership Investment Agreement

(e)

Since 30 June 2016:

(i)

each GWA Group member has carried on its business in the ordinary and usual course; and

(ii)

to the best of GWI’s knowledge, there has been no change in the financial position of the GWA Group from that set forth in the 2016 Accounts except changes none of which individually or in the aggregate has had a material adverse effect on the GWA Group taken as a whole.

3.11

Taxation

(a)

All Taxes which are due and payable to a Tax Authority and for which a member of the GWA Group is liable, whether individually or jointly with another person, have been paid.

(b)

Each member of the GWA Group has created and maintained records to enable it to comply with its obligations (to the extent such obligations exist) to prepare and submit any information, notices, computations, returns and payments required by any Law relating to Tax, and has retained necessary records as required of it by any Law relating to Tax.

(c)

Any information, notice, computation or return which has been submitted by a member of the GWA Group to any Tax Authority in respect of any Tax discloses all material facts that must be disclosed under any Law relating to Tax and is not misleading in any material respect.

(d)

All Tax returns or other documents or notices required by a Law relating to Tax (including, but not limited to, Laws imposing or relating to income tax, fringe benefits tax, goods and services tax, payroll tax, group tax, land tax, water and municipal rates and stamp and customs duty) to be lodged or filed by a member of the GWA Group prior to Completion have been or will be duly lodged or filed.

(e)

All amounts required by any Law relating to Tax to be deducted by or on behalf of a member of the GWA Group from the salary or wages of employees, or from any other amount, have been duly deducted and, where appropriate, duly paid to the relevant Tax Authority in accordance with the relevant Law.

(f)

Genesee & Wyoming Australia Pty Ltd is the Representative Member of a GST Group and has never been a member of any other GST Group.

(g)

Each member of the GWA Group required to be registered for GST, is registered for GST.

(h)

Within the meaning of Division 703 of the Income Tax Assessment Act 1997, all members of the GWA Group (other than Freightliner Australia Pty Limited, FLA Coal Services Pty Limited and Freightliner Australia Coal Haulage Pty Ltd) are members of a validly formed consolidated group of which GWAHLP is head entity.

(i)

No member of the GWA Group has entered into, or been a party to a transaction which knowingly contravenes the anti-avoidance provisions of any Law relating to Tax.

(j)

To the best of GWI’s knowledge, all transactions between the member of a the GWA Group with international related parties are on arm’s length terms.

3.12

Litigation

(a)

There is no current litigation, prosecution, administrative or dispute resolution proceedings ( Proceedings ) against GWI which is or may be materially prejudicial to GWA Group.


Partnership Investment Agreement

(b)

No written notice has been received by GWI or any member of the GWA Group of any potential Proceedings which may be materially prejudicial to the GWA Group.

(c)

GWI is not aware of any fact, matter or circumstance that GWI considers, acting reasonably, would give rise to any Proceedings related to the GWA Group which may be materially prejudicial to GWA Group.

(d)

Neither GWI nor any other member of the GWA Group has:

(i)

commenced Proceedings against any other party which may be materially prejudicial to the GWA Group and which is outstanding; or

(ii)

issued any written notice concerning any such potential Proceedings.

(e)

To the best of GWI’s knowledge, there is no:

(i)

unsatisfied judgment or award outstanding against the GWA Group or the Assets; or

(ii)

execution or process of any party issued against or levied or enforceable upon or against the GWA Group or the Assets, whether or not the effect of such execution or process has been stayed.

3.13

Compliance with Laws and anti-corruption

(a)

The GWA Group has complied in all material respects with all applicable Laws in respect of its Assets, the Business and the Employees and no material contravention, or allegation of any material contravention, of any applicable Law is known to GWI and, to the best of GWI’s knowledge, there are no facts or circumstances that are likely to give rise to any material contravention or allegation.

(b)

To the best of GWI’s knowledge, no GWA Group member nor any director, officer, employee or agent of any GWA Group member, nor any person acting on any GWA Group member’s behalf, has, in connection with, or otherwise relating to, the operation of the GWA Group’s business, engaged in any activity or conduct that has resulted in or will result in a violation of:

(i)

any applicable Anti-Corruption Laws; or

(ii)

any applicable domestic Laws that implement United Nations or state-imposed sanctions or export controls.


Partnership Investment Agreement

Schedule 3

Co-Investor Party Warranties

1	The Co-Investor Party

(a)

The Co-Investor Party is duly incorporated and validly exists under the Law of its places of incorporation.

(b)

The Co-Investor Party is not insolvent and no receiver has been appointed over any part of its assets and no such appointment has been threatened.

(c)

The Co-Investor Party is not in liquidation or official management and no proceedings have been brought or threatened for the purpose of winding up the Co-Investor Party or placing it under official management.

(d)

No administrator has been appointed to the Co-Investor Party nor has any deed of company arrangement been executed or proposed in respect of the Co-Investor Party.

(e)

To the best of the knowledge of the Co-Investor Party, there are no facts, matters or circumstances which give any person the right to apply to liquidate or wind up the Co- Investor Party or place the Co-Investor Party under official management.

2	Due authorisation

(a)

The execution and delivery of this Agreement has been properly authorised by all necessary corporate action of the Co-Investor Party.

(b)

The Co-Investor Party has full corporate power and lawful authority to execute and deliver this Agreement and to consummate and perform or cause to be performed its obligations under this Agreement and each transaction contemplated by this Agreement to be performed by it.

(c)

This Agreement constitutes a legal, valid and binding obligation of the Co-Investor Party, enforceable in accordance with its terms by appropriate legal remedy.

(d)

The execution, delivery and performance by the Co-Investor Party of this Agreement and each transaction contemplated by this Agreement does not or will not (with or without the lapse of time, the giving of notice or both) contravene, conflict with or result in a breach of or default under:

(i)

any provision of the constitution of the Co-Investor Party;

(ii)

any material term or provision of any security arrangement, undertaking, agreement or deed; or

(iii)

any writ, order or injunction, judgment, Law, rule or regulation to which it is a party or is subject or by which it is bound.

3	Co-Investor Party that is a trustee

(a)

Each Trustee is empowered by the trust deed establishing the trust under which it is appointed as trustee ( Trust Deed ) to enter into and perform its obligations under this Agreement and to carry out the acts and transactions contemplated by this Agreement.

(b)

All necessary resolutions have been duly passed and all consents, approvals and other procedural matters have been obtained or attended to as required by the Trust Deed.

(c)

The Trustee of the Relevant Trust is the sole trustee of that trust.


Partnership Investment Agreement

(d)

No property of the Relevant Trust is liable to be re-settled or set aside or transferred to any other trust of which the Trustee is trustee.

(e)

The Relevant Trust has not been terminated, nor has any event for the vesting of the assets of the Relevant Trust occurred.

(f)

Subject to the terms of the Trust Deed and limitations which may be imposed by general law, the Trustee’s right of indemnity out of, and lien over, the assets of the Relevant Trust have not been limited in any way.

(g)

Under the terms of applicable laws and the Trust Deed, the Trustee’s right of indemnity out of the assets of the Relevant Trust is only limited in respect of events where the Trustee has failed to properly perform its trustee or responsible entity duties (as applicable).

(h)

To the best of the relevant Co-Investor Party’s knowledge, the Trustee of the Relevant Trust has complied with all obligations and duties under the Trust Deed and at law, where failure to comply would prevent it from properly performing its obligations under this Agreement.


Partnership Investment Agreement

Schedule 4

Amended and Restated Partnership Agreement

LOGO

GWI International Pty Ltd (as a General Partner)

GWI Holding B.V. (as a Limited Partner)

Scissor Holdings Pty Ltd (as a General Partner)

Macquarie Specialised Asset Management Limited as trustee for the MAIF Investment Trust (as a Limited Partner)

Macquarie Australian Infrastructure Management 1 Limited as trustee for the Scissor Holdings Trust (as a Limited Partner)

Macquarie Australian Infrastructure Management 1 Limited as trustee for the PGGM Ibis LP Trust (as a Limited Partner)

Macquarie Corporate Holdings Pty Ltd

Limited Partnership Agreement for G&W Australia Holdings LP

Deutsche Bank Place

Corner Hunter and Phillip Streets

Sydney NSW 2000 Australia

T +61 2 9230 4000

F +61 2 9230 5333

www.allens.com.au

Allens is an independent partnership operating in alliance with Linklaters LLP.

Limited Partnership Agreement

for G&W Australia Holdings LP


Contents

1	Definitions and Interpretation		1
	1.1	Definitions	1
	1.2	General interpretation	13
	1.3	Exercise of powers	14

2	Formation of Partnership and its business		14
	2.1	Formation of Partnership	14
	2.2	Registration	14
	2.3	Admission of additional Partners	15
	2.4	Changes in registered particulars	15
	2.5	Admission by substitution	15
	2.6	Tax residency of a General Partner	15
	2.7	Partnership Property	15
	2.8	Name of business	15
	2.9	Documents to bear Partnership name	16
	2.10	Registered office	16
	2.11	Registration Certificate to be displayed	16

3	Duration of the Partnership		16
	3.1	Commencement of Partnership	16
	3.2	Continuity of Partnership	16
	3.3	Cessation of limited partnership	16
	3.4	Duration and dissolution	16

4	Liability of Partners		16
	4.1	Liability of each Partner to Third Parties	16
	4.2	Liability between Partners	17
	4.3	Indemnity of General Partners	17
	4.4	Indemnity by General Partners	17

5	Capital Contributions		17
	5.1	Initial Capital Contributions and Respective Proportions	17
	5.2	Payment date for Capital Contribution	17
	5.3	Additional Capital Contributions	17
	5.4	No obligation of Limited Partners to contribute	18
	5.5	No interest on Capital Contributions	18
	5.6	No withdrawal of Capital Contributions	18

6	Management of the Partnership		18
	6.1	Formation and functions of the Management Committee	18
	6.2	General powers of Representatives and delegation	19
	6.3	Appointment and removal of Representatives	20
	6.4	Appointment and removal of Chairman	20
	6.5	Appointment and removal of Secretary	21
	6.6	Observers	21
	6.7	Initial Representatives	21
	6.8	Use of experts	21
	6.9	Strategic Plan	21
	6.10	Budget	22
	6.11	Announcements, Advertising and Marketing Materials	23
	6.12	Partnership Bank Account	23

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Limited Partnership Agreement

for G&W Australia Holdings LP


	6.13	Partnership expenses	23
	6.14	Partner expenses	23
	6.15	Reimbursement of Approved Expenses	23
	6.16	Related Party Transactions	23
	6.17	Preparation of financial accounts	24
	6.18	Partner information rights	26
	6.19	Governance of the GWA Group	26
	6.20	GW Group requirements	26
	6.21	Compensation and management incentive plans	27

7	Meetings of Management Committee		28
	7.1	Meetings	28
	7.2	Quorum	28
	7.3	Agendas for Management Committee meetings	29
	7.4	Minutes	29

8	Voting of Management Committee		29
	8.1	Voting Entitlement of Representatives	29
	8.2	Decisions by simple majority vote	29
	8.3	Reserved Matters	29
	8.4	Decisions contractually binding on Partners	30
	8.5	Circulating resolutions	30

9	Profits and losses of Partnership		30
	9.1	General Partner to receive income	30
	9.2	Determination of profits and losses	30
	9.3	Allocation of profits and losses to Partner Account	30

10	Distributions		30
	10.1	Distributions of Partnership and GWA Group	30
	10.2	Tax withholding	31

11	Additional Financing		31
	11.1	Additional finance	31
	11.2	Call for further funding	31
	11.3	Failure to provide Funding Amount	32
	11.4	Dilution of Non-contributing Partner	33

12	Transfer of Partnership Interests		34
	12.1	Transfer of Partnership Interests generally	34
	12.2	Stapled Partnership Interests	34
	12.3	Exceptions to Stapling	34
	12.4	Effect of Transfer on application of this Agreement	34
	12.5	Disclosures to Third Parties	35
	12.6	Non-complying Transfer ineffective	35

13	Permitted Transfers		35

14	Pre-emption right on Transfers		35

15	Tag Right		37
	15.1	Tag Notice	37
	15.2	Exercise of Tag Right	37
	15.3	Completion of Transfer of Partnership Interest	38

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Limited Partnership Agreement

for G&W Australia Holdings LP


16	Exit events		38
	16.1	Exit Notice	38
	16.2	Third Party Sale	38
	16.3	IPO	38
	16.4	Exit mechanics	39
	16.5	Warranties on exit	39

17	Defaulting Partner Transfers		39
	17.1	Default Event	39
	17.2	Default Event Notice	39
	17.3	Defaulting Partner Transfer	40
	17.4	Transfer Price	40
	17.5	Reasonable endeavours	40

18	Competition		41
	18.1	Partners’ covenants not to compete with Partnership	41
	18.2	Application of covenants	41
	18.3	Specified periods	41
	18.4	Specified areas	41
	18.5	Construction and nature of restrictions	42
	18.6	Remedies	42

19	Process upon dissolution		42
	19.1	Application of proceeds on dissolution	42
	19.2	If no General Partner	43
	19.3	Distribution of assets	43
	19.4	Final statement	43

20	Disputes		43
	20.1	Disputes	43
	20.2	Communications without prejudice	44
	20.3	Continued performance of the agreement	44
	20.4	Court proceedings	44

21	Third Party Claims		44
	21.1	Conduct of Third Party Claims	44
	21.2	Funding Third Party Claims	44

22	Partner matters		44
	22.1	Duties of Partners	44
	22.2	Restrictions on Partners	45
	22.3	Representations and Warranties of Partners	45
	22.4	Continuation of Partnership	46
	22.5	Limitation of liability of the Trustees	46

23	Confidentiality		47
	23.1	Confidentiality	47
	23.2	Permitted disclosure	47
	23.3	Return of Confidential Information	48
	23.4	Remedies	48
	23.5	Survival of obligation	49

24	General		49
	24.1	Notices	49
	24.2	Status of Limited Partnership	50
	24.3	Entire Agreement	50
	24.4	Amendment	51

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Limited Partnership Agreement

for G&W Australia Holdings LP


	24.5	Assignment	51
	24.6	Counterparts	51
	24.7	Severability of provisions	51
	24.8	Discretion in exercising rights	51
	24.9	Remedies cumulative	51
	24.10	Rights and obligations are unaffected	52
	24.11	Waiver	52
	24.12	Further steps	52

25	Governing law and jurisdiction		52
	25.1	Governing law	52
	25.2	Jurisdiction	52
	25.3	Supervening legislation	52
	25.4	Service of process	52

Schedule 1			53
	Capital Contributions and Respective Proportion as at Investment Date		53

Schedule 2			54
	Admission Certificate		54

Schedule 3			55
	Reserved Matters		55
	Initial Distribution Policy		63

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Limited Partnership Agreement

for G&W Australia Holdings LP

This Agreement is made on

Parties

1	GWI International Pty Ltd (ACN 616 014 754) of Level 3, 33 Richmond Road, Keswick, South Australia 5035, a General Partner ( *GW GP* ).

2	GWI Holding B.V. (Company No. 17072430) registered in The Netherlands of Strawinskylaan 3105, 1077 ZX Amsterdam, The Netherlands, a Limited Partner ( *GW LP* ).

3	Scissor Holdings Pty Ltd (ACN 614 520 302) of Level 6, 50 Martin Place, Sydney, New South Wales, 2000 ( *MIRA GP* ).

4	Macquarie Australian Infrastructure Management 1 Limited (ACN 077 595 012) as trustee for the Scissor Holdings Trust (ABN 60 744 504 418) of Level 6, 50 Martin Place, Sydney, New South Wales, 2000 ( *MAIT LP* ).

5	Macquarie Specialised Asset Management Limited (ACN 087 382 965) as trustee for the MAIF Investment Trust (ABN 56 501 013 400) of Level 6, 50 Martin Place, Sydney, New South Wales, 2000 ( *MAIF LP* ).

6	Macquarie Australian Infrastructure Management 1 Limited (ACN 077 595 012) as trustee for the PGGM Ibis LP Trust (ABN 88 741 842 754) of Level 6, 50 Martin Place, Sydney, New South Wales, 2000 ( *PGGM LP* ).

7	Macquarie Corporate Holdings Pty Ltd (ACN 096 705 109) of 50 Martin Place, Sydney, New South Wales, 2000 ( *MCHPL* ).

Recitals

A	The Partners desire to carry on business with a view to profit in limited partnership on and subject to the following terms.

B	MCHPL is a party to this Agreement for the purposes of clause 18.1(b) only.

It is agreed as follows.

1	Definitions and Interpretation

1.1

Definitions

The following definitions apply unless the context requires otherwise.

Acceptance Notice has the meaning given in clause 11.2(c).

Accepting Partner has the meaning given in clause 14(f).

Accounting Standards means the requirements of the Australian Accounting Standards, other authoritative pronouncements of the Australian Accounting Standards Board, the requirements of the Corporations Act in relation to the preparation and content of accounts and, to the extent that any matter is not covered by them, means generally accepted accounting principles applied from time to time in Australia for entities similar to the Partnership.

Act means the Partnership Act 1891 (SA).

Admission Certificate means a certificate in the form of Schedule 2 or such other form acceptable to all of the Partners.

Affiliate means in respect of a person (the First Person ):

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(a)

a Related Body Corporate of the First Person;

(b)

any Managed Fund which is managed by, and must at all times continue to be managed by:

(i)

the First Person or any of its Related Bodies Corporate;

(ii)

the Fund Manager of the First Person, or any of the Related Bodies Corporate of that Fund Manager,

in each case, on a bona fide commercial and arms’ length basis; or

(c)

where the First Person is PGGM LP, in addition to paragraphs (a) and (b), any entity managed, advised or Controlled by PGGM BV or its Affiliates.

Aggregate Partnership Interest means:

(a)

in respect of GW LP and GW GP, the sum of the Partnership Interests held by GW LP and GW GP;

(b)

in respect of MIRA GP, the sum of the Partnership Interests held by MIRA GP and the MIRA Limited Partners;

(c)

in respect of a MIRA Limited Partner the sum of:

(i)

the Partnership Interests held by that MIRA Limited Partner; and

(ii)

that MIRA Limited Partner’s GP Proportion of Partnership Interests held by MIRA GP;

(d)

in respect of any Partner that is not a GW Partner or a MIRA Partner, the sum of the Partnership Interests held by that Partner and all of its Related Partners.

Aggregate Respective Proportion means, for each group of Related Partners, the sum of the Respective Proportions of each Partner in that group of Related Partners.

Approved Expenses has the meaning given in clause 6.15(a).

Auditor means the audit firm of the GWA Group, which must, subject to being one of Deloitte, Ernst & Young, PWC or KPMG, be the same audit firm as used by the GW Group from time to time, unless otherwise agreed in writing by each General Partner.

Board means the board of directors of a GWA Group entity.

Budget means the document that sets out the annual operating expenses and capital expenditure for the GWA Group as approved by the Management Committee in accordance with clause 6.9.

Budget Committee has the meaning in clause 6.10(b).

Business Day means a day a day that is not a Saturday, Sunday or any other day which is a public holiday or a bank holiday in the place where an act is to be performed or a payment is to be made.

Capital Contribution means, for each Partner, the amount(s) or asset(s) shown as the Capital Contribution for that Partner in Schedule 1 or their Admission Certificate (as the case may be) (including any unpaid or uncontributed component of such contribution amount), plus any additional amounts or assets contributed from time to time in accordance with clauses 5 or 11.

Ceasing Partner has the meaning given in clause 23.3(a).

Chairman means the Chairman of the Management Committee.

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Change of Control means the situation where a Partner comes under the Control of a person or persons who did not Control the Partner at the date the Partner became a Partner of the Partnership provided that a Change of Control will not be taken to have occurred:

(a)

as a result of a transaction entered into in relation to the securities of a Partner (or a Holding Company of a Partner) where those securities are listed on a recognised stock exchange);

(b)

as a result of a transaction entered into in relation to the securities of a Fund Manager of a Partner (or a Holding Company of a Fund Manager of a Partner) where those securities are listed on a recognised stock exchange;

(c)

as a result of a transaction where a Partner (or the Holding Company of a Partner) comes under the Control of an Affiliate of that Partner (or the Holding Company of that Partner);

(d)

if there is a change to the Fund Manager of a Partner (or the Holding Company of a Fund Manager of a Partner), provided that the new Fund Manager is an Affiliate of the first Fund Manager;

(e)

if a Limited Partner or a Holding Company of any Partner appoints a custodian, general partner, trustee, responsible entity or bare nominee to hold its Partnership Interests or there is a change to the custodian, general partner, trustee, responsible entity or bare nominee appointed by a Limited Partner (or the Holding Company of a Limited Partner), provided that there is no change in the ultimate beneficial ownership of the Partnership Interests as part of the same transaction;

(f)

if a Limited Partner or a Holding Company of any Partner is a Managed Fund subject to such persons not being Prohibited Transferees, there is a change to the limited partners, beneficiaries or underlying investors of that Limited Partner (or a Holding Company of that Limited Partner), provided that the Fund Manager, or an Affiliate of the Fund Manager, continues to be appointed;

(g)

as a result of a transaction where the Transferor has first complied with clause 14;

(h)

if, in relation to MIRA GP, there is a transfer of securities in the MIRA GP in accordance with the requirements of clause 12.3(b); or

(i)

if, in relation to PGGM LP, there is a change to the Fund Manager of PGGM LP, provided that there is no change to the beneficial ownership of PGGM LP’s Partnership Interest at the time of the change of the Fund Manager,

except that a Change of Control will be taken to have occurred where there is a change to the Fund Manager of either MAIT LP or MAIF LP and the new Fund Manager is not a Subsidiary of MCHPL, provided that a Change of Control will not be taken to have occurred where the role as manager of MAIT LP or MAIF LP (as applicable) continues to be performed on a day-to-day basis, with a similar degree of control, by persons who were employees of the Macquarie Infrastructure and Real Assets division of Macquarie Group Limited immediately prior to the change to the Fund Manager in circumstances where the business of the Macquarie Infrastructure and Real Assets division of Macquarie Group Limited has been sold, demerged or otherwise no longer forms part of Macquarie Group Limited.

Claim means any claim, demand, legal proceeding or cause of action including any claim, demand, legal proceeding or cause of action, however arising and whether present, unascertained, immediate, future or contingent.

Commissioner for Consumer Affairs means the person who for the time being is employed as Commissioner for Consumer Affairs South Australia under the Public Sector Act 2009 (SA).

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Compete means to be directly or indirectly engaged, concerned or interested, whether on its own account or as a member, shareholder, unitholder, consultant, principal, agent, partner, beneficiary, trustee or otherwise, in any enterprise, corporation, firm, partnership, trust, joint venture or syndicate, which is engaged or involved in or carrying on now or in the future:

(a)

any business the same as or substantially similar to or competing directly or indirectly with that conducted or planned by the Partnership; or

(b)

any business or assets that primarily relates to rail infrastructure, rail access, rail haulage services or trains and is wholly or partly carried out or located in the areas specified in clause 18.4.

Confidential Information has the meaning given in clause 23.1.

Continuing Partner has the meaning given in clause 14(b).

Contributing Partner has the meaning given in clause 11.3(b).

Control means, in respect of a person, the power, whether held directly or indirectly (such as through interposed entities) and by whatever means (and whether or not enforceable at Law or in equity):

(a)

to exercise, or control the exercise of, more than or equal to half the voting power attaching to securities in that person;

(b)

to Transfer, or control the Transfer of, more than or equal to half (by value) of the securities in that person; or

(c)

to appoint, or control the appointment of, directors of that person (or its trustee where the person is a trust) having more than or equal to half of the votes at board meetings.

Corporations Act means the Corporations Act 2001 (Cth).

Default Event has the meaning given in clause 17.1.

Default Event Notice has the meaning given in clause 17.2(a).

Default Transfer Price has the meaning given in clause 19.4.

Defaulting Partner has the meaning given in clause 17.1.

Director means a director of a Board.

Dispute has the meaning given in clause 20.1(a).

Dispute Notice has the meaning given in clause 20.1(a).

Distribution Policy means the document which sets out the distribution policy of the Partnership and the GWA Group as approved by the General Partners as a Reserved Matter, with the Initial Distribution Policy being attached at Annexure A.

Dividend means a dividend declared and includes a bonus or other distributions in kind or in cash.

Excess Services means services which when delivered will require a fee to be paid that would meet any of the criteria specified in clause 5.3 of the Management Support Services Agreement.

Exit Costs means the out of pocket costs and expenses incurred by a Partner in relation to a Transfer of that Partner’s Partnership Interest by way of Third Party Sale, including preparing transaction documents, advisory fees or other selling commissions (if any), expenses of due diligence investigations, fees of any relevant regulatory authority, legal fees, experts’ fees, and other related costs.

Exit Notice has the meaning given in clause 16.1(a).

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Finance Document means any document or agreement which sets out the terms and conditions by which the Partnership or one or more members of the GWA Group have received debt funding (excluding any Partner Loans) and, at the Investment Date, means the Security Trust Deed and each Finance Document (as defined in the Security Trust Deed).

Financial Year means the period from the Investment Date to 31 December 2016 and then each succeeding period from 1 January to the next 31 December.

Freightliner means Freightliner Australia Pty Limited (ACN 122 522 123).

Freightliner Management Shareholders means Jolenica Group Pty Limited ACN 123 720 310 as trustee for Jolenica Trust, 53 Hudson Road Pty Ltd ACN 147 150 141 as trustee for the Hudson Trust and Into the Black Pty Limited ACN 123 720 347 as trustee for the Out of the Red Trust.

Fund Manager means the manager of a Managed Fund and may include a trustee or general partner of a Managed Fund if that entity is providing management services as part of its role as trustee or general partner.

Funding Amount has the meaning given in clause 11.2(b).

Funding Notice has the meaning given in clause 11.2(a).

General Partner means each of GW GP and MIRA GP and any other person or entity admitted to the Partnership as a general partner in accordance with this Agreement.

GP Proportion means, in respect of each MIRA Limited Partner:

GP Proportion = A / B;

where:

A = the Partnership Interests held by the relevant MIRA Limited Partner; and

B = the total number of Partnership Interests held by all MIRA Limited Partners.

Government Agency means any government or representative of a government or any government, semi-governmental, administrative, fiscal, regulatory or judicial body, department, commission, authority, tribunal, agency, competition authority or entity. It includes Australian Securities and Investments Commission, the U.S. Securities and Exchange Commission, New York Stock Exchange and Australian Securities Exchange (and any other stock exchange).

Gross Income means all moneys, assets, rights and property in the nature of income derived from or in respect of the Partnership and the Partnership Business and the investments and operations of the Partnership from all sources.

GW Group means GW Inc and its Subsidiaries. For the purposes of this Agreement, GW Group does not include the Partnership or any member of the GWA Group.

GW Inc means Genesee & Wyoming Inc. (Delaware Company No. 842999).

GW Partners means GW GP and GW LP and each of their Permitted Transferees (excluding any Permitted Transferees that are not Affiliates of GW GP and/or GW LP) which is a Partner from time to time and GW Partner means any one of them.

GWA Group means GWIH2 and its Subsidiaries.

GWIH2 means GWI Holdings No.2 Pty Ltd (ACN 132 989 998).

Holding Company means in relation to an entity (the first entity ), an entity of which the first entity is a Subsidiary but where;

(a)

a trust may be a Holding Company, for the purposes of which the assets held by the trustee on behalf of that trust shall be deemed to be the assets of that trust; and

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(b)

an entity may be a Holding Company of a trust if it would have been a Holding Company of a trust if that trust were a corporation and the beneficial interests in that trust were securities.

Independent Expert means a person of appropriate reputation, standing and relevant experience who has no direct or indirect personal interest in the outcome of the issue in respect of which they are consulted pursuant to this Agreement, agreed by the parties or failing agreement within 5 Business Days of the parties commencing discussions to select an Independent Expert, nominated by the President of the Resolution Institute upon the request of any party.

Initial Distribution Policy means the distribution policy of the Partnership and the GWA Group from the Investment Date (as annexed to this Agreement at Annexure A).

Initial Strategic Plan means the strategic plan from the Investment Date as agreed in writing by the Partners.

Insolvency Event mean in respect of a Partner or the Partnership (as applicable) if:

(a)

the Partner or the Partnership stops or suspends or threatens to stop or suspend payment of all or a class of its debts;

(b)

the Partner or the Partnership is insolvent within the meaning of section 95A of the Corporations Act;

(c)

a court is required under section 459C(2) of the Corporations Act to presume that the Partner or the Partnership is insolvent;

(d)

the Partner or the Partnership fails to comply with a statutory demand (within the meaning of section 459F(1) of the Corporations Act);

(e)

an administrator is appointed over all or any of the Partner’s or the Partnership’s assets or undertaking or any step preliminary to the appointment of an administrator is taken;

(f)

a controller within the meaning of section 9 of the Corporations Act or similar officer is appointed to all or any of the Partner’s or the Partnership’s assets or undertaking; or

(g)

an application or order is made, proceedings are commenced, a resolution is passed or proposed in a notice of meeting or an application to a court or other steps are taken for the Partner’s or the Partnership’s winding up or dissolution or for the Partner or the Partnership to enter an arrangement, compromise or composition with or assignment for the benefit of its creditors, a class of them or any of them.

Interest Rate means 2% per annum above the current average interest rate payable by the Partnership in respect of all Third Party debt of the Partnership.

Investment Date means the date of this Agreement.

IPO means an initial public offering of all the shares in GWIH2 or all of the Partnership Business (via a company and/or a trust structure).

Law means any statute, regulation, order, rule, subordinate legislation or other document enforceable under any statute, regulation, rule or subordinate legislation.

Limited Partner means each of GW LP, MAIT LP and MAIF LP and any other person or entity admitted to the Partnership as a limited partner in accordance with this Agreement.

Liabilities in respect of the Partnership comprise:

(a)

unpaid administrative costs and expenses including fees of the General Partners;

(b)

accrued charges in respect of or owing in relation to any of the investments of the Partnership;

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(c)

amounts required to meet present liabilities of the Partnership;

(d)

amounts of all borrowings of the Partnership; and

(e)

all other liabilities (including contingent liabilities) of the Partnership, or other expenditure which in the opinion of the General Partners should be taken into account.

Lock-up Period means the 2 year period starting on and from the Investment Date.

Managed Fund means:

(a)

a unit trust, investment trust, managed investment scheme, limited partnership, general partnership, collective investment scheme or other entity or group of entities; or

(b)

any companies, trusts or other entities Controlled by an entity referred to in paragraph (a) above.

Management Committee has the meaning given in clause 6.1(c).

Management Support Services Agreement means the services agreement dated on or about the Investment Date between Genesee & Wyoming Railroad Services, Inc. and the Partnership.

Material Breach means, in respect of a Partner, a failure to comply with any material provision of this Agreement including clauses 12, 13, 14, 15, 16 and 18.

MIRA Partners means MIRA GP and the MIRA Limited Partners.

MIRA Limited Partners means MAIT LP, MAIF LP and PGGM LP and each of their Permitted Transferees (excluding any Permitted Transferees that are not Affiliates of MIRA GP, MAIT LP, MAIF LP and/or PGGM LP), which is a Partner from time to time.

Non-contributing Partner has the meaning given in clause 11.3.

Non-defaulting Partner has the meaning given in clause 17.2(a).

Notice Period has the meaning given in clause 14(e).

Notifiable Incidents means any occurrence of:

(a)

Fraud committed by any employee or director of the Partnership or any GWA Group member against the Partnership or any member of the GWA Group;

(b)

an unauthorised payment or series of payments being made out of Partnership or GWA Group funds by any employee or director of the Partnership or any member of the GWA Group in an amount greater than $50,000;

(c)

a breach of physical or computer security of the Partnership or any GWA Group member with the potential to lead to loss of commercially sensitive information, or disruption to business operations;

(d)

an accident involving the Partnership or any GWA Group member which resulted in death or permanent disablement of any employee or director of the Partnership or any GWA Group member such that the affected person is unable to return to work within six months and resume normal duties;

(e)

an environmental/rehabilitation bond or guarantee being called by a relevant authority;

(f)

serious damage to wildlife or the natural environment that would constitute a material breach of any Law regarding the environment;

(g)

legal proceedings or regulatory investigations being commenced in connection with any of the matters referred to in paragraphs (d) to (f) above;

(h)

any materially adverse mainstream press coverage or community unrest;

(i)

an employee strike affecting the Partnership or any GWA Group member; or

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(j)

any significant injury to members of the public requiring hospitalisation arising from an incident involving the Partnership or any GWA Group member.

Partner Account means, for each Partner, the sum of:

(a)

that Partner’s Capital Contribution; plus

(b)

the profits allocated to that Partner’s Partner Account; minus

(c)

the losses allocated to that Partner’s Partner Account; minus

(d)

the total amount of distributions of cash made to that Partner,

as credited or charged to the Partner’s Partner Account at the time that the relevant allocation is determined or distribution made.

Partner Loan means an advance provided to the Partnership by a Partner, on terms which must be in accordance with clause 11.2(e).

Partners means each of the General Partners and the Limited Partners together and Partner means any one of them.

Partner Entitlement has the meaning given in clause 14(c)(iii).

Partnership means the limited partnership registered under Part 3 of the Act and constituted or evidenced by this Agreement.

Partnership Bank means Australia and New Zealand Banking Group Limited, being the financial institution at which the Partnership Bank Account has been opened.

Partnership Bank Account means the Partnership’s trading bank account opened with the Partnership Bank.

Partnership Business means the business and related activities and support services of freight rail, rail transport, rail logistics and rail infrastructure operation and maintenance carried out in Australia or any other business or investment to be undertaken by the Partnership as separately unanimously agreed by the General Partners.

Partnership Interest means the legal and beneficial interest of a Partner in the Partnership, including all of a Partner’s rights and obligations under this Agreement.

Partnership Net Assets means at any time, all Partnership Property of the Partnership, minus the Liabilities at that time of the Partnership.

Partnership Property at any particular time means:

(a)

cash on hand or at a bank;

(b)

any securities or other investments;

(c)

any income accruing from any securities or other investments and from cash;

(d)

amounts owing to the Partnership by debtors;

(e)

any prepayment of expenditure; and

(f)

any other asset of the Partnership,

and includes all income earned thereon and all property substituted therefore at any such time.

Permitted Transferee means, in relation to a Partner, a person who is:

(a)

an Affiliate of that Partner;

(b)

receiving a Transfer of Partnership Interests on the exercise by that Partner of a Tag Right in accordance with clause 15;

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(c)

a security agent or financial institution if the Transfer of Partnership Interests results in such security agent or financial institution being the beneficiary of a Security Interest in accordance with the terms of a Finance Document;

(d)

Bank of America, N.A or its Affiliate, if the Transfer is GW GP granting a Security Interest over its Partnership Interest pursuant to the document entitled “Second Amended and Restated Senior Secured Syndicated Facility Agreement” dated 20 March 2015 between, inter alia, GW Inc, Genesee & Wyoming Australia Pty Ltd and Bank of America, N.A. (as amended to the date hereof and as the same may be further amended, amended and restated, refinanced, supplemented or otherwise modified from time to time);

(e)

a trustee, responsible entity, general partner, custodian or bare nominee if such person is replacing an existing trustee, responsible entity, general partner, custodian or bare nominee of that Partner’s Partnership Interest;

(f)

in the case of MIRA GP, receiving such Transfer in accordance with clause 12.3(a); or

(g)

in the case of MAIF LP and MAIT LP only, a Qualifying Buyer, provided such Transfer or series of Transfers occur within the Lock-up Period and comprise of up to 20% of the Aggregate Partnership interests held by MAIF LP and MAIT LP at the Investment Date,

subject to such person not being a Prohibited Transferee (unless approved in writing by all of the Partners).

PGGM BV means PGGM Vermogensbeheer B.V. (company registration 30228490) whose registered address is Noordweg 150, Zeist, Utrecht 3704JG, the Netherlands.

Profit means the profits of the Partnership, including dividends received from the GWA Group, as determined in accordance with Accounting Standards.

Prohibited Transferee means a person to whom a Partner is restricted from Transferring its Partnership Interest (whether directly or indirectly), being:

(a)

a person that has not obtained all approvals required from any Government Agency in respect of the Transfer;

(b)

a person that Competes with the Partnership;

(c)

a person that is not of sufficient financial standing to be permitted to hold the relevant Partnership Interest under the Finance Documents or a person to whom a Transfer would otherwise be a breach of the Finance Documents;

(d)

a person who is currently the subject or the target of any sanctions administered or enforced by a Government Agency or other relevant sanctions authority, or is located, organised or resident in a country, region or territory that is the subject or the target of any such sanctions;

(e)

a person whose directors or officers have been charged with an indictable offence or a Government Agency has commenced any public action against such persons;

(f)

a person whose directors or officers have been disqualified from managing a corporation under Part 2D.6 of the Corporations Act;

(g)

a person whose directors or officers engage, or are alleged to have been engaged in, any fraudulent conduct or activity;

(h)

a person that is otherwise damaging or potentially damaging to the reputation of the Partnership Business as determined by the General Partners acting reasonably; or

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(i)

a person to whom such Transfer would result in Glencore Coal Pty Limited having a termination right under clause 34.2 (Change of Control) in the Rail Haulage Agreement between Glencore Rail (NSW) Pty Limited, Glencore Coal Pty Limited and Glencore plc.

Qualifying Buyer means:

(a)

an Australian superannuation fund or a non-Australian pension plan;

(b)

sovereign wealth fund;

(c)

endowment fund;

(d)

life insurance company;

(e)

a pooled investment vehicle where the underlying investors are any of the entities set out in paragraphs (a) to (d) above; or

(f)

a Subsidiary of any of the entities set out in paragraphs (a) to (e) above or an entity that would be a Subsidiary of any of the entities set out in paragraphs (a) to (e) above if both such entities were bodies corporate,

with net assets of no less than $1 billion and which must at all times continue to be managed by a Subsidiary of MCHPL on a bona fide commercial and arms’ length basis.

Register means the Register as defined in the Act.

Registered Office means the registered office for the time being of the Partnership.

Registration Certificate means a certificate issued by the Commissioner for Consumer Affairs pursuant to the Act.

Related Body Corporate means where an entity is:

(a)

a Holding Company of another entity; or

(b)

a Subsidiary of another entity; or

(c)

a Subsidiary of a Holding Company of another entity,

the first mentioned entity and the other entity are Related Bodies Corporate of each other, provided that a member of the GWA Group is not regarded as a Related Body Corporate of any Partner for the purposes of this Agreement.

Related Partners means:

(a)

in respect of the GW Partners, GW LP and GW GP;

(b)

in respect of the MIRA Partners, MAIF LP, MAIT LP, PGGM LP and MIRA GP and any of their Permitted Transferees (excluding any Qualifying Buyers which are not Affiliates of a MIRA Partner) which is a Partner from time to time; or

(c)

in respect of any Partner that is not a GW Partner or a MIRA Partner, that Partner and any of its Affiliates that are also Partners.

Related Party Transaction means the entry into, termination or amendment of any agreements, arrangements, commitments or understandings entered into or to be entered into between the Partnership or a GWA Group entity and:

(a)

a Representative or a Director of a GWA Group entity; or

(b)

a Partner or an Affiliate of a Partner.

Relevant Trust means:

(a)

in respect of Macquarie Specialised Asset Management Limited, the MAIF Investment Trust;

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(b)

in respect of Macquarie Australian Infrastructure Management 1 Limited in its capacity as trustee of the Scissor Holdings Trust, and

(c)

in respect of Macquarie Australian Infrastructure Management 1 Limited in its capacity as trustee of PGGM Ibis LP Trust, PGGM Ibis LP Trust.

Remuneration Committee has the meaning given in clause 6.21(a).

Respective Proportion means the proportionate Partnership Interest of a Partner from time to time, expressed as a percentage of the total Partnership Interests at the relevant time and, at the Investment Date, is the percentage set out for the relevant Partner in Schedule 1.

Representative means a representative appointed by a General Partner to the Management Committee in accordance with clause 6.2.

Reserved Matter means a matter set out in Schedule 3.

Retained Information has the meaning given in clause 23.3(c).

Return on Investment means the aggregate amount that would be paid to and received by Related Partners in respect of their Aggregate Partnership Interest out of the proceeds from a Transfer of their Aggregate Partnership Interest by way of a Third Party Sale (less any Exit Costs) plus the aggregate amounts of all cash payments (including dividends received in respect of Partnership Interests and any principal and interest received respect of Partner Loans) received by the Related Partners since the Investment Date, all expressed as a percentage of the total Capital Contributions the relevant Related Partners have invested in the Partnership.

Secretary means the secretary of the Management Committee appointed by the Management Committee from time to time.

Security Interest means any mortgage, pledge, lien or charge or any security or preferential interest or arrangement of any kind. It includes:

(a)

anything which gives a creditor priority to other creditors with respect to any asset; and

(b)

retention of title (other than in the ordinary course of day to day trading) and a deposit of money by way of security.

Security Trust Deed means the document entitled “Project Monty – Security Trust Deed” dated on or about the Investment Date between, inter alia, GWIH2, GWI Acquisitions Pty Ltd and National Australia Bank Limited (as security trustee).

Senior Management has the meaning given in clause 6.21(a) and Senior Manager means any member of Senior Management.

Statement has the meaning given in clause 2.4.

Strategic Plan means the document which sets out the strategic intentions of the Partnership and the GWA Group as approved by the Management Committee and each General Partner in accordance with clause 6.9, with the Initial Strategic Plan being agreed in writing by the Partners.

Subsidiary means in relation to an entity (the first entity ), an entity which the first entity Controls.

Tag Partner has the meaning given in clause 15.2(b).

Tag Notice has the meaning given in clause 15.1(a).

Tag Right has the meaning given in clause 15.1(b).

Tax Acts means the Income Tax Assessment Act 1997 (Cth) and the Income Tax Assessment Act 1936 (Cth).

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Third Party means any person other than a Partner, an Affiliate of a Partner or a GWA Group entity and, for the purpose of clauses 12 to 17, a Third Party does not include a Permitted Transferee.

Third Party Claim has the meaning given in clause 21.1.

Third Party Sale means a sale of a Partner’s Aggregate Partnership Interests to a Third Party.

Transfer in relation to any property means to sell, transfer, assign, create a Security Interest over, declare oneself a trustee of or part with the benefit of or otherwise transfer or dispose of that property (or any direct interest in it or any part of it) including, without limitation, in relation to a Partnership Interest, to enter into a transaction in relation to a Partnership Interest (other than a transaction permitted by this Agreement or conditional on each other Partner consenting to it or waiving certain of its rights under this Agreement or as otherwise agreed by each Partner) which results in a person other than the registered holder of the Partnership Interest:

(a)

acquiring any direct equitable interest in the Partnership Interest, including, without limitation, a direct equitable interest arising under a declaration of trust, an agreement for sale and purchase or an option agreement or an agreement creating a charge or other Security Interest over the Partnership Interest;

(b)

acquiring any right to receive directly any Dividends payable in respect of the Partnership Interest or any other economic interest in respect of the Partnership Interest;

(c)

acquiring any rights of pre-emption, first refusal or other control over the disposal of the Partnership Interest;

(d)

acquiring any rights of control over the exercise of any voting rights or rights to appoint Representatives attaching to the Partnership Interest; or

(e)

otherwise acquiring legal or equitable rights against the registered holder of the Partnership Interest which have the effect of placing the person in the same position as if the person had acquired a legal or equitable interest in the Partnership Interest itself,

provided that without prejudice as to whether there is a Change of Control of a Partner, a Transfer will not be taken to have occurred as a result of (i) any acquisition of interests in a Partner or a Holding Company of a Partner, (ii) any management, services or administrative agreement entered into between (A) Related Partners in respect of the relationship of those Related Partners as partners in the Partnership or (B) a Holding Company of a Partner and any person.

Transfer Interest has the meaning given in clause 14(b).

Transfer Notice has the meaning given in clause 14(b).

Transfer Price has the meaning given in clause 14(c)(i).

Transfer Terms has the meaning given in clause 14(c).

Transferee has the meaning given in clause 12.4(a).

Transferor has the meaning given in clause 12.4(a).

Trustees means:

(a)

in respect of MAIF Investment Trust, Macquarie Specialised Asset Management Limited;

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(b)

in respect of the Scissor Holdings Trust, Macquarie Australian Infrastructure Managment 1 Limited; and

(c)

in respect of PGGM Ibis LP Trust, Macquarie Australian Infrastructure Management 1 Ltd,

and Trustee means any one of them.

Trusts means:

(a)

the MAIF Investment Trust;

(b)

the Scissor Holdings Trust; and

(c)

the PGGM Ibis LP Trust,

and Trust means any one of them.

Unpaid Amount has the meaning given in clause 11.3(a).

Urgent Amount has the meaning given in clause 11.3(e).

Urgent Funding Event means:

(a)

an event of default that has occurred under a Finance Document which has not been unconditionally waived in writing under the terms of that Finance Document (or, if conditionally waived in writing, such condition has not been satisfied in accordance with the terms of the waiver) and, where such event of default is capable of remedy, it has not been remedied or the Management Committee has resolved that there is a reasonable likelihood of an event of default occurring under a Finance Document;

(b)

an Insolvency Event has occurred in respect of the Partnership or the Management Committee has resolved that there is a reasonable likelihood of an Insolvency Event occurring; or

(c)

any other circumstance that the Management Committee determine is reasonably likely to have a material adverse impact on the Partnership or the GWA Group.

Working Capital means the working capital of the Partnership from time to time.

1.2

General interpretation

(a)

Headings are for convenience only and do not affect interpretation.

(b)

Nothing in this Agreement is to be interpreted against a party solely on the ground that the party put forward this Agreement or a relevant part of it.

(c)

In this Agreement unless the contrary intention appears:

(i)

a reference to a clause is a reference to a clause of this Agreement and references to this Agreement include any recital;

(ii)

a reference to this Agreement or another instrument includes any variation or replacement of either of them;

(iii)

a reference to a statute, ordinance, code or other Law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

(iv)

the singular includes the plural and vice versa;

(v)

a gender includes all genders;

(vi)

the word person includes a natural person, partnership, joint venture, trustee, trust, association, government agency, corporation or other entity;

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(vii)

a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including by novation) and permitted assigns;

(viii)

a reference to an entity includes a body corporate, unincorporated body, trust, fund, separate account and partnership;

(ix)

if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day;

(x)

a reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later;

(xi)

a reference to dollar or $ is to Australian currency;

(xii)

a reference to a group of persons or things is a reference to any two or more of them jointly and to each of them individually; and

(xiii)

the words ‘include’, ‘including’, ‘for example’ or ‘such as’ are not used as, nor are they to be interpreted as, words of limitation, and, when introducing an example, do not permit the meaning of the words to which the example relates to that example or examples of a similar kind.

1.3

Exercise of powers

Each General Partner, to the extent within its power to do so, must:

(a)

exercise its powers in relation to the Partnership, the GWA Group entities, the Management Committee and each Representative appointed by that General Partner to ensure that the Partnership, each GWA Group entity and its Representatives comply with this Agreement;

(b)

do or procure to be done all such acts and things as that General Partner is able to do or procure to be done to give full effect to this Agreement;

(c)

ensure that the Partnership, the GWA Group entities, the Management Committee and each Representative appointed by that General Partner acts consistently with the requirements of this Agreement; and

(d)

not unreasonably delay any action, consent or decision required by that General Partner under this Agreement.

2	Formation of Partnership and its business

2.1

Formation of Partnership

The Partnership was formed as a limited partnership under Part 3 of the Act and is subject to the terms of this Agreement for the principal purpose of carrying on a business with a view to profit by engaging in the activities of the Partnership Business.

2.2

Registration

(a)

The Partners acknowledge that the GW Group caused the Partnership to be registered as a limited partnership in accordance with the Act.

(b)

GW GP and MIRA GP must execute or cause to be executed all certificates and other documents, and do or cause to be done all acts, as each considers necessary or appropriate to comply with the requirements of the Act and any other applicable Law for the formation and operation of the Partnership.

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2.3

Admission of additional Partners

Subject to the other requirements set out in this Agreement, a person may be admitted as a new general partner or a new limited partner to the Partnership (whether by substitution or otherwise) after the Investment Date:

(a)

if all Partners provide their prior written consent;

(b)

if that person agrees to be bound by the terms of this Agreement by executing an Admission Certificate with the Partners; and

(c)

on the terms of the Admission Certificate,

and the parties agree that the Partnership will continue in full force and effect upon the admission of a new Partner.

2.4

Changes in registered particulars

(a)

If any issue of a new Partnership Interest or Transfer of an existing Partnership Interest in accordance with this Agreement would result in:

(i)

a change in any of the registered particulars of the Partnership under the Act;

(ii)

the admission of a new person as a partner in the Partnership; or

(iii)

a change in the liability of a Limited Partner to contribute,

then the General Partners must cause the lodgement of a statement setting out details of the changed particulars in accordance with the Act (the Statement ).

(b)

The Statement must be in a form approved by the Commissioner for Consumer Affairs (or other relevant authority) and contain the particulars required by the Act.

(c)

Any new or existing Partner that has changed its liability (as applicable) must sign the Statement and do all other acts promptly upon request by any General Partner.

(d)

The General Partners must not register any change referred to in clause 2.4(a) if the new issue or Transfer of a Partnership Interest was not undertaken in accordance with this Agreement.

2.5

Admission by substitution

For the purposes of this Agreement, a person may only be admitted as a partner to the Partnership by way of substitution of an existing Partner if that person acquired Partnership Interests in accordance with clauses 12 to 16.

2.6

Tax residency of a General Partner

Each General Partner is and must always be a Resident of Australia (as defined in the Tax Acts).

2.7

Partnership Property

The Partnership Property is owned by the Partners in their Respective Proportions from time to time.

2.8

Name of business

The business of the Partnership will be carried on under the name of ‘G&W Australia Holdings’ or such other name as the General Partners determine.

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2.9

Documents to bear Partnership name

Each document issued or executed by or on behalf of the Partnership must bear the name of the Partnership and the words ‘A Limited Partnership’ (or the expression ‘L.P.’ or ‘LP’ as an abbreviation) immediately adjacent to the name.

2.10

Registered office

The Partnership must keep a Registered Office in South Australia (at the place shown in the Register as the address of the Registered Office) to which all communications with the Partnership may be addressed. The Registered Office will be at 320 Churchill Road, Kilburn, SA 5084 or such other place as the General Partners determine.

2.11

Registration Certificate to be displayed

A copy of the Registration Certificate must be displayed clearly at the Registered Office.

3	Duration of the Partnership

3.1

Commencement of Partnership

The Partnership commenced on the date on which the Partnership was registered by the Commissioner for Consumer Affairs under Part 3 of the Act.

3.2

Continuity of Partnership

None of the following events will cause the Partnership to terminate:

(a)

the liquidation or other cessation of a Partner which is a corporation;

(b)

the addition of any new Partner; or

(c)

the change in status of any of the Partners.

3.3

Cessation of limited partnership

The Partnership ceases to be a limited partnership if and only if:

(a)

none of the Partners is a general partner within the meaning of the Act; or

(b)

none of the Partners is a limited partner within the meaning of the Act; or

(c)

all the Partners agree in writing that they will carry on the business of the Partnership otherwise than as a limited partnership.

3.4

Duration and dissolution

Subject to the operation of any provisions of the Act which cannot be excluded by agreement between all the Partners, the Partnership will continue until dissolved under this Agreement or by mutual agreement of all of the Partners or operation of Law.

4	Liability of Partners

4.1

Liability of each Partner to Third Parties

Subject to the Act, and despite anything else in this Agreement:

(a)

each Partner acknowledges that it is liable jointly with the other Partners for all Liabilities of the Partnership to Third Parties incurred while that Partner is a partner in the Partnership; but

(b)

each Limited Partner will be liable for the Liabilities of the Partnership to Third Parties only to the extent of, and out of the Capital Contribution of, that Limited Partner.

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4.2

Liability between Partners

(a)

Subject to clauses 4.1 and 4.2(b) and the Act, the Liabilities of the Partnership, including Third Party Claims, are attributable to the Partners pro rata according to the Capital Contribution of each Partner.

(b)

Each General Partner is liable for any Liability or obligation of the Partnership for which a Limited Partner that is a Related Partner of that General Partner is liable but is unable to satisfy due to the limitation of liability of that Limited Partner (as set out in clause 4.1(b)).

4.3

Indemnity of General Partners

(a)

Subject to clause 4.3(b), each General Partner shall be indemnified out of the Partnership Property against all debts, liabilities, obligations, costs and expenses incurred by that General Partner for the purposes of or in connection with managing the Partnership or the Partnership Business.

(b)

The indemnity in clause 4.3(a):

(i)

shall not extend to any loss, damage, debt, liability or obligation arising out of any fraud, wilful default, neglect or dishonesty or negligence or failure by the relevant General Partner to comply with any provisions contained in this Agreement; and

(ii)

will not in any way increase the liability of any Limited Partner beyond the amount of its Capital Contribution as contributed or agreed to be contributed by that Limited Partner pursuant to this Agreement.

4.4

Indemnity by General Partners

(a)

Each General Partner indemnifies its Related Partner(s) against all debts, liabilities, obligations, costs and expenses incurred by that Related Partner that result from such Related Partner not having limited liability (as set out in clause 4.1(b)), other than to the extent the lack or loss of limited liability is caused by some action or omission of that Related Partner.

(b)

A General Partner indemnifies all other Partners against all debts, liabilities, obligations, costs and expenses, including those incurred in connection with advisers, incurred by that Partner if the General Partner breaches this Agreement or acts outside the scope of its authority under this Agreement in managing and controlling the Partnership, the Partnership Property and Partnership Business.

5	Capital Contributions

5.1

Initial Capital Contributions and Respective Proportions

As at the Investment Date, each Partner has, in respect of its Partnership Interest, paid or is recognised as having paid, a Capital Contribution to the Partnership and holds a Respective Proportion of the Partnership as set out opposite its name in Schedule 1.

5.2

Payment date for Capital Contribution

Any additional Capital Contributions must be paid on the date specified in the relevant Admission Certificate or as agreed by all Partners.

5.3

Additional Capital Contributions

(a)

Subject to clause 8.3, the Partners agree to contribute from time to time in their Respective Proportions further capital required by the Partnership if and to the extent set out in the Strategic Plan.

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(b)

A Partner may make additional contributions of capital (such that it increases its Capital Contribution) from time to time to the Partnership:

(i)

in accordance with clause 11; or

(ii)

with the prior written consent of all the Partners.

(c)

Where a person is admitted or substituted as a Partner after the Investment Date, such Partner must pay or otherwise contribute, in respect of its Partnership Interest, the amount(s) or asset(s) set out in the relevant Admission Certificate on the date specified in that Admission Certificate.

(d)

Additional contributions of capital by a General Partner or a Limited Partner must be recorded by the General Partners by amending Schedule 1, reflecting it in the books of the Partnership and making any necessary filing as required under the Act.

5.4

No obligation of Limited Partners to contribute

Subject to clause 5.3(a), the Limited Partners are not obliged to make additional contributions of capital (to increase their respective Capital Contributions) or contribute other moneys or assets to the Partnership beyond the relevant amounts or assets set out in Schedule 1 (Part B) or their Admission Certificate (as the case may be).

5.5

No interest on Capital Contributions

No interest will be paid by the Partnership to any Partner on any Capital Contribution.

5.6

No withdrawal of Capital Contributions

Except as provided in this Agreement, none of the Partners may withdraw any Capital Contribution made to the Partnership.

6	Management of the Partnership

6.1

Formation and functions of the Management Committee

(a)

The General Partners are solely responsible for the management of the Partnership and the Partnership Business and have the sole right to exercise the powers of, and to act on behalf of, the Partnership. The General Partners are authorised to delegate to any other person or persons those acts, matters and things as they think fit.

(b)

A Limited Partner must not take part in the management of the Partnership or the Partnership Business and does not have any power to bind the Partnership or any of the other Partners.

(c)

On and from the Investment Date, the General Partners will establish a committee (the Management Committee ) in accordance with the terms of this Agreement.

(d)

Subject to this Agreement including clause 8.3 in relation to Reserved Matters:

(i)

the Management Committee will refer to the Strategic Plan for general guidance on how to conduct the Partnership Business; but

(ii)

the Management Committee has full, exclusive and absolute right, power and authority to manage and control the Partnership, the Partnership Property and the Partnership Business.

(e)

Subject to clause 8.3 in relation to Reserved Matters, the Management Committee has all of the rights, powers and authority conferred upon it by this Agreement, including:

(i)

to control and direct the management of, and to bind, the Partnership;

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(ii)

to appoint a nominee to hold the Partnership Property for the Partnership;

(iii)

to acquire and hold, in the name of the Partnership directly or by a nominee on behalf of the Partnership, any assets that the Management Committee determines is necessary or appropriate for the Partnership Business;

(iv)

to borrow and raise money (whether or not on security) on behalf of the Partnership and the GWA Group;

(v)

to lend and provide money (whether or not on security) on behalf of the Partnership and the GWA Group;

(vi)

to employ or engage, on behalf of the Partnership, operational, agent, sales, maintenance, administrative and secretarial personnel or other persons necessary for the maintenance and operation of the Partnership Business;

(vii)

to sign all instruments and do all acts, matters and things as may be necessary or desirable in the opinion of the Management Committee for carrying out the powers given to the Management Committee under this Agreement or in connection with the Partnership Business;

(viii)

to make any deductions in respect of taxes from any distributions to be made to a Partner, if required by Law; and

(ix)

to perform any and all other acts the Management Committee deems necessary or appropriate for the purposes of the Partnership Business.

6.2

General powers of Representatives and delegation

(a)

Subject to clause 8.3 in respect of Reserved Matters, each General Partner will exercise overall supervision and control of all matters pertaining to its interest and the interests of its Related Partners in the Partnership and, except as otherwise provided in this Agreement, such supervision and control must be exercised through its Representative(s) on the Management Committee.

(b)

Each Representative, subject to clause 8.3 in respect of Reserved Matters:

(i)

has full power and authority to represent and bind each Partner and the Partnership in all matters decided by the Management Committee within the scope of its functions; and

(ii)

must at all times act in the best interests of the Partnership as a whole (and, for the avoidance of doubt, such obligations on Representatives do not limit the decisions of a General Partner in relation to Reserved Matters).

(c)

Subject to clause 8.3 in respect of Reserved Matters, the Management Committee will supervise the management of the day-to-day operations of the Partnership and may delegate responsibility for the day-to-day management of the Partnership to Senior Management on terms determined by it.

(d)

The Representatives must procure that Senior Management provides updates on performance by hosting monthly calls for the Representatives.

(e)

The Partnership is liable for the fees, acts, deeds and omissions of any person to whom responsibilities are delegated by the Management Committee.

(f)

Despite any other provision of this Agreement, the Representatives appointed by each General Partner from time to time as members of the Management Committee will not, simply by virtue of their position as Representatives of that appointing General Partner,

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be or be deemed to be directors (within the meaning of the Corporations Act) of that appointing General Partner.

6.3

Appointment and removal of Representatives

(a)

Each General Partner is entitled to appoint one Representative to the Management Committee for every 20% of its Aggregate Respective Proportion.

(b)

For so long as the GW Partners hold an Aggregate Respective Proportion of greater than 50%, the GW Partners will be entitled to appoint an additional two Representatives.

(c)

Each Representative will continue in his or her duties on the Management Committee until such time that:

(i)

notice of the removal and or replacement of that Representative is given to the Management Committee by his or her appointing General Partner; or

(ii)

that Representative’s appointing General Partner’s Aggregate Respective Proportion falls below the required Aggregate Respective Proportion to appoint such number of Representatives in accordance with clause 6.3(a) and 6.3(b) as it has currently appointed, and from that time, the Representative is automatically removed from the Management Committee. If at the time a Representative is to be automatically removed there is more than one Representative appointed by the relevant General Partner, that General Partner must immediately notify the Management Committee of the identity of the Representative which must be removed. If the General Partner fails to notify the Management Committee, the Management Committee at its sole discretion can determine which Representative of that General Partner is to be removed from the Management Committee.

(d)

Each General Partner will be entitled to appoint any person as an alternate Representative for a Representative appointed by it and from time to time, to remove any person so appointed and to appoint another person in their place, by providing written notice to the other General Partner. An alternate Representative will be entitled to attend any meeting of the Management Committee and, if the Representative he or she is acting as an alternate Representative for is not present, to exercise all powers of that Representative.

(e)

The remuneration of a Representative (if any) is to be determined and paid by his or her appointing General Partner. A Representative is not entitled to remuneration for his or her services by the Partnership.

6.4

Appointment and removal of Chairman

(a)

For so long as the GW Partners hold an Aggregate Respective Proportion of greater than 50%, the Management Committee must appoint as Chairman a Representative appointed by GW GP. In the event that the GW Partners no longer hold an Aggregate Respective Proportion of greater than 50%, from such time the role of Chairman must be rotated between a Representative appointed by each of the General Partners at the end of each 12 month period.

(b)

The Chairman will continue in his or her duties until such time that:

(i)

notice of the removal and/or replacement of that Chairman is given to the Management Committee by his or her appointing General Partner;

(ii)

the GW Partners cease to hold an Aggregate Respective Proportion of greater than 50%; or

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(iii)

in the event that the GW Partners no longer hold an Aggregate Respective Proportion of greater than 50%, the Chairman has undertaken his or her duties for 12 months,

and at that time the Management Committee must remove the Chairman and appoint a new Chairman in accordance with clause 6.4(a).

6.5

Appointment and removal of Secretary

The Management Committee may appoint and remove or replace the Secretary of the Management Committee. The Secretary need not be a Representative.

6.6

Observers

Each General Partner may notify the Management Committee in advance of a meeting of the Management Committee that up to two observers may attend that meeting on behalf of that General Partner. The observers do not have a right to vote or participate at the meeting.

6.7

Initial Representatives

On and from the Investment Date, the initial Representatives of the Management Committee will be:

(a)

John C. Hellmann, Michael O. Miller, David A. Brown and Richard H. Allert as Representatives appointed by GW GP; and

(b)

Kieran Zubrinich and Gordon Taylor, as Representatives appointed by MIRA GP.

6.8

Use of experts

(a)

The Management Committee may, in its absolute discretion consult, appoint, employ or contract with any person to assist it to carry out its obligations in managing the Partnership and the Partnership Business pursuant to this Agreement. This shall include any expert, consultant, adviser or other person whom the Management Committee considers may assist it in the provision of its management services, but excludes Limited Partners.

(b)

Each General Partner is liable for its own acts or omissions notwithstanding that it has relied on the advice of any other person.

6.9

Strategic Plan

(a)

The General Partners must procure that the Management Committee refers to the Strategic Plan for general guidance on how to conduct the Partnership Business.

(b)

The General Partners have agreed the Initial Strategic Plan.

(c)

The Strategic Plan must be reviewed:

(i)

on an on-going basis at such times as determined by the General Partners, subject to being not less than once every three years; or

(ii)

at the request of a General Partner at any time so as to incorporate into the Strategic Plan any Reserved Matters agreed by the General Partners, as appropriate, or other material changes in the Partnership Business.

(d)

If the General Partners do not approve all or part of a Strategic Plan by the start of the period to which the relevant Strategic Plan relates, then that Strategic Plan or the unapproved part of it (as the case may be) is the same as in the previous Strategic Plan until such time as a new Strategic Plan or the previously unapproved part of the relevant Strategic Plan is approved by the General Partners.

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(e)

Once changes to the Strategic Plan are approved by the General Partners, all matters pertaining to the implementation of the Strategic Plan will be under the supervision and control of the Management Committee in its sole discretion, subject to clause 8.3 in respect of Reserved Matters.

6.10

Budget

(a)

The General Partners must procure that the Management Committee carries on the Partnership Business in accordance with the relevant Budget.

(b)

The Management Committee must select Representatives to form a budget committee ( Budget Committee ) to consider, make recommendations and submit to the Management Committee the draft Budget in accordance with the process set out in this clause 6.10. The Budget Committee must comprise of at least one Representative appointed by each General Partner.

(c)

At least 30 Business Days before the commencement of each Financial Year, the Budget Committee, with the assistance of Senior Management, must prepare and submit to the Management Committee for approval a draft Budget (including any draft amendments to the current Budget) for the next Financial Year.

(d)

At least 20 Business Days before the commencement of each Financial Year, the Management Committee must:

(i)

consider, vote on and approve with or without amendment the draft Budget received from the Budget Committee in accordance with clause 6.10(c) with or without amendment and may give conditional or unconditional approval of any item in the draft Budget; and

(ii)

inform the General Partners of the new Budget once approved.

For the avoidance of doubt, it will not be a breach of this Agreement by any Partner if the Management Committee approves a Budget which is not consistent with the draft Budget provided to it by the Budget Committee.

(e)

If any Representative does not approve the draft Budget in accordance with clause 6.10(d), that Representative may refer the draft Budget back to the Budget Committee for reconsideration and re-submission to the Management Committee, such re-submission to occur within 2 months of the date of the Representative’s referral. When referring a draft Budget back to the Budget Committee specific reasons for not approving the draft Budget must be provided by the relevant Representative.

(f)

If a draft Budget is referred back to the Budget Committee pursuant to clause 6.10(e), the Budget Committee, with the assistance of Senior Management, must prepare and re-submit to the Management Committee for approval within the 2 month period pursuant to clause 6.10(e) a revised draft Budget and the Management Committee must:

(i)

consider, vote on and approve with or without amendment the revised draft Budget received from the Budget Committee in accordance with clause 6.10(f) with or without amendment and may give conditional or unconditional approval of any item in the revised draft Budget; and

(ii)

inform the General Partners of the new Budget once approved.

(g)

If a draft Budget is not approved by a simple majority of the Management Committee, the Management Committee will work with Senior Management to establish an annual Budget that is satisfactory to the Management Committee in its sole discretion.

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(h)

Notwithstanding paragraphs (c) to (g) of this clause 6.10 above, the Management Committee must ensure that the draft Budget is approved without any item being subject to conditional approval or further amendment by the date that is 40 Business Days after the commencement of each Financial Year. All matters pertaining to the implementation of the Budget will be under the supervision and control of the Management Committee in its sole discretion, subject to clause 8.3 in respect of Reserved Matters.

6.11

Announcements, Advertising and Marketing Materials

Subject to clause 23.2, no announcement, advertising or marketing materials will be used in connection with the Partnership or the GWA Group unless they have been approved in writing by the Management Committee, except if such announcement or advertising refers to a Partner beyond its participation in the Partnership, or includes details of the ownership or capital structure or funding of the Partnership, that announcement or advertising must also be approved in writing by each Partner to which such announcement or advertising refers.

6.12

Partnership Bank Account

(a)

The Partnership Bank Account must be operated only for the requirements of the Partnership in the usual and regular course of business and always in the Partnership name.

(b)

The Management Committee must give the Partners reasonable written notice in advance of any change to the Partnership Bank Account details, including opening a new bank account with a different financial institution.

(c)

The Management Committee must take into consideration any reasonable tax or financial concerns of the Partners notified to the Management Committee in writing before making a decision to change the details of the Partnership Bank.

6.13

Partnership expenses

All expenses and outgoings of the Partnership, including any fees of independent advisors to the Management Committee and the costs and expenses incurred by the taking, keeping and circulating minutes of Management Committee meetings, are payable out of the Working Capital.

6.14

Partner expenses

Expenses incurred by any Partner for its own benefit, including fees and disbursement of its own legal counsel and other advisors incurred in connection with enforcing its rights under this Agreement, will be for the account of such Partner on whose behalf they are incurred, and will not be submitted to the Partnership for reimbursement and must not be reimbursed by the Partnership.

6.15

Reimbursement of Approved Expenses

(a)

Notwithstanding clause 6.14, if a Partner believes an expense incurred by that Partner should be an expense payable by the Partnership, before incurring such expense it must first be pre-approved by the General Partners as a Reserved Matter ( Approved Expense ).

(b)

Each Partner may be reimbursed for an Approved Expense out of the Working Capital.

6.16

Related Party Transactions

(a)

All Related Party Transactions must be approved by the General Partners as a Reserved Matter.

(b)

Other than in respect of Excess Services, the Partners agree that:

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(i)

requests by the Management Committee, a GWA Group entity or GWA Group employee for the provision of services under the Management Support Services Agreement;

(ii)

the provision of the services under the Management Support Services Agreement; and

(iii)

the administration (including the actual payment of any fees for services received) of the Management Support Services Agreement,

will not be a Related Party Transaction and no Representative will be deemed to have a conflict of interest when considering the provision of, or any request for, services under the Management Support Services Agreement.

(c)

The Partners agree that the amendment of the Management Support Services Agreement (including a change to the scope of the services or the basis for determining fees payable by the Partnership or the GWA Group), the request or payment for Excess Services, the conduct and outcome of any annual or other review of the Management Support Services Agreement or the termination of the Management Support Services Agreement will be a Related Party Transaction.

6.17

Preparation of financial accounts

(a)

The Management Committee must keep proper books of account and records of the affairs of the Partnership and the Partnership Business, including management and service fees, reimbursements, loans, interest and all other transactions as between the Partnership and the Partners.

(b)

Those books of account and records must be sufficient to enable the Management Committee to prepare the end of Financial Year accounts and other accounts relating to the Partnership as may be necessary and to ascertain the Partnership Property and Liabilities and the profits or losses realised from Partnership Business.

(c)

The Management Committee must ensure that the accounting records of the Partnership and the Partnership Business correctly record and explain the transactions of the Partnership and the Partnership’s financial position, and that these accounting records are kept in such a manner as will enable the preparation from time to time of true and fair accounts of the Partnership and enable the accounts of the Partnership to be conveniently and properly audited.

(d)

Each Partner may access the books of account during normal business hours.

(e)

The books of account must include a capital account balance in the Partner Account for each Partner’s Capital Contribution.

(f)

The capital account balance for the Partner Account of each Partner will be credited with the amount of that Partner’s Capital Contribution, plus any additional Capital Contributions in accordance with clause 5.3, less any returns of capital in accordance with clause 10.1(a)(iv)

(g)

The books of account must include a current account balance in the Partner Account for each Partner.

(h)

The current account balance of a Partner Account for each Partner will be credited with that Partner’s share of net profits in accordance with clause 10.1(a)(iii).

(i)

From 1 January 2017 (save for sub-paragraph (i) below, which shall commence from the Investment Date and which for the period prior to 1 January 2017, such accounts are to be prepared in accordance with the policies and procedures in place as at immediately

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prior to the Investment Date) as soon as reasonably practicable after the end of each relevant period throughout the duration of the Partnership, and also upon termination of the Partnership, the Management Committee will prepare (or procure the preparation of) and deliver to each Partner:

(i)

monthly management accounts of the Partnership (including any associated commentary prepared in conjunction with such accounts), which are not required to be reviewed or audited by the Auditor, and delivered to the Partners no later than 20 calendar days after the end of the relevant month;

(ii)

for so long as the Aggregate Respective Proportion of the GW Partners is greater than 50%:

(A)

quarterly consolidated management accounts of the Partnership (including comparison to Budget and any associated commentary prepared in conjunction with such accounts), together with quarterly reports in respect of environmental, social and governance matters (including details of material incidents or policy breaches, work, health and safety statistics and a summary of continuous improvement initiatives), and delivered to the Partners no later than 40 calendar days after the end of the relevant quarter;

(B)

annual consolidated financial accounts of the Partnership (including any associated commentary prepared in conjunction with such accounts), which are to be audited by the Auditor, and delivered to the Partners no later 120 calendar days after the end of the relevant Financial Year;

(C)

quarterly and annual financial accounts of the Partnership and its Subsidiaries and associated commentary required by the GW Group, subject to audit procedures and associated reporting by the Auditor as directed by the auditor of the GW Group within timeframes communicated by the GW Group and its auditor; and

(D)

documentation and testing of internal controls for financial reporting of the Partnership and its Subsidiaries as directed by the GW Group and its auditor within timeframes communicated to the Partnership by the GW Group and its auditor.

(iii)

for so long as the Aggregate Respective Proportion of the GW Partners is equal to or less than 50%:

(A)

quarterly consolidated financial accounts of the Partnership (including comparison to Budget and any associated commentary prepared in conjunction with such accounts), with the quarterly consolidated financial accounts (but not the comparison to Budget or the commentary) to be reviewed (but not audited) by the Auditor, together with quarterly reports in respect of environmental, social and governance matters (including details of material incidents or policy breaches, work, health and safety statistics and a summary of continuous improvement initiatives), and delivered to the Partners no later than 40 calendar days after the end of the relevant quarter;

(B)

annual consolidated financial accounts of the Partnership (including any associated commentary prepared in conjunction with such accounts), which are to be audited by the Auditor, and delivered to the Partners no later 60 calendar days after the end of the relevant Financial Year; and

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(C)

a report on the Partnership’s assessment of the effectiveness of its, and its consolidated Subsidiaries, internal controls over financial reporting based on the Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission as of each annual year end reporting date. The Management Committee must also procure that the Auditor perform an audit of the effectiveness of the Partnership’s, and its consolidated Subsidiaries, internal control over financial reporting during their audit of the annual consolidated financial accounts. Such reports must be delivered to the Partners as soon as reasonably practicable, but no later than 60 calendar days after the end of the relevant Financial Year.

(j)

Each of the financial accounts will include a statement of:

(i)

the Partnership Property and Liabilities;

(ii)

the net amount of equity in the Partnership; and

(iii)

the profits and losses in connection with the Partnership.

(k)

The financial accounts are binding on all of the Partners in the absence of manifest error.

6.18

Partner information rights

(a)

The Management Committee must provide each General Partner with:

(i)

as soon as practicable after the Management Committee is aware, a notification setting out any Notifiable Incidents; and

(ii)

any changes to the Strategic Plan once approved as a Reserved Matter and each Budget once approved by the Management Committee, in accordance with clause 6.9.

(b)

The Management Committee must as soon as reasonably practicable provide further information about GWA Group businesses that a General Partner reasonably requests from time to time, including for the purpose of a Partner’s planning cycle requirements.

6.19

Governance of the GWA Group

(a)

Subject to clause 6.19(b), the Management Committee must ensure that the Board composition of each GWA Group entity has the same proportionate composition as the Management Committee.

(b)

For so long as required by the constitution of Freightliner, or any other agreement between all of the shareholders of Freightliner, the Management Committee must ensure that the Freightliner Board composition comprises:

(i)

two directors appointed by GW GP;

(ii)

one director appointed by MIRA GP; and

(iii)

two directors appointed by the Freightliner Management Shareholders.

Each director appointed by a General Partner must, subject to his or her duties as a director of Freightliner, act in accordance with the directions of the Management Committee.

6.20

GW Group requirements

(a)

For so long as the Aggregate Respective Proportion of the GW Partners is greater than 50%:

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(i)

save to the extent that to do so would be a breach of Australian Law or to the extent that compliance with such policies would be a breach of Australian Law, the Management Committee must adopt, and must procure that the GWA Group adopts, policies in connection with operational matters, that comply with the policies of the GW Group in respect of the following:

(A)

financial reporting, budgeting, review, tax planning, outlook update, quarterly review and valuation processes;

(B)

accounting policies;

(C)

US reporting requirements;

(D)

compliance processes; and

(E)

employment, health and safety and environmental policies, procedures and programs; and

(ii)

the GW Group must provide the services requested under the Management Support Services Agreement in accordance with the terms of the Management Support Services Agreement.

(b)

The Management Committee and the Partnership must provide the GW Group with any information required by the GW Group pursuant to the GW Group’s assessment of its obligations under requirements of the U.S. Securities and Exchange Commission, the New York Stock Exchange and any tax or other Government Agency.

(c)

The Management Committee must consult with each General Partner and provide each General Partner with reasonable opportunity to comment on the policies and procedures of the Partnership or the GWA Group before any such policy is adopted, amended or terminated.

6.21

Compensation and management incentive plans

(a)

The Management Committee must select Representatives to form a remuneration committee ( Remuneration Committee ) to consider and make recommendations to the Management Committee in respect of compensation levels and the management incentive scheme that will apply to the Chief Executive Officer, Chief Financial Officer and other senior management of the GWA Group (together, Senior Management ).

(b)

The Remuneration Committee must comprise of at least one Representative appointed by each General Partner.

(c)

The Management Committee, before making any decision in respect of the compensation levels or management incentive schemes that will apply to Senior Management:

(i)

must refer the matter to the Remuneration Committee for a recommendation; and

(ii)

must not make a decision in respect of the compensation levels and any management incentive schemes that will apply to Senior Management without considering a recommendation of the Remuneration Committee.

For the avoidance of doubt, it will not be a breach of this Agreement by any Partner if the Management Committee determines compensation levels or management incentive schemes which are not consistent with a recommendation of the Remuneration Committee.

(d)

The Management Committee will consider the recommendations of the Remuneration Committee pursuant to clause 6.21(a) and set compensation levels for the Senior

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Managers, provided that such compensation must be consistent with market standards for comparable management roles at that time.

(e)

The Management Committee will consider the recommendations of the Remuneration Committee pursuant to clause 6.21(a) and implement (or amend) a discretionary management incentive scheme for the Senior Managers in accordance with the following principles:

(i)

there will be no entitlement to receive any equity in the Partnership and all incentives will be cash settled unless approved in writing by each General Partner;

(ii)

the management incentives will be aligned with the performance of the Partnership;

(iii)

to the maximum extent possible, the Senior Management will be rewarded for elements of performance which is within their control; and

(iv)

the Senior Managers will be rewarded for achieving financial targets and other operational metrics, including health and safety,

subject to each Senior Manager being employed and not on notice of termination at the time the incentive payment is due.

7	Meetings of Management Committee

7.1

Meetings

(a)

The Management Committee must:

(i)

meet no less than quarterly and at any other time two or more Representatives give notice to call a meeting;

(ii)

procure that Senior Management participate in monthly teleconference calls or meetings with the General Partners to provide a performance update on the Partnership;

(iii)

hold all meetings in Australia; and

(iv)

unless otherwise agreed by a Representative appointed by each General Partner, at least 12 Business Days’ notice of a meeting of the Management Committee must be given to all Representatives.

(b)

A meeting conducted by telephone or other means of electronic communication will be deemed to be held at the place determined by the Management Committee, provided that at least one Representative present at the meeting was at that place for the duration of the meeting.

7.2

Quorum

(a)

A quorum for a meeting of the Management Committee will be:

(i)

for so long as the GW Partners hold an Aggregate Respective Proportion of greater than 50%, not less than two Representatives appointed by GW GP and one Representative appointed by MIRA GP; or

(ii)

in the event that the GW Partners no longer hold an Aggregate Respective Proportion of greater than 50%, one Representative appointed by each group of Related Partners with an Aggregate Respective Proportion of 20% or more.

(b)

If a quorum is not present within 30 minutes after the time appointed for the commencement of a meeting of the Management Committee, that meeting must be

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adjourned to a date between two and five Business Days after the scheduled meeting, to the same time and at the same place (to the extent possible), unless otherwise agreed in writing by all Representatives.

(c)

If a quorum is not present within 30 minutes after the time appointed for the commencement of a meeting adjourned under clause 7.2(b), those Representatives present will constitute a quorum.

7.3

Agendas for Management Committee meetings

(a)

Notices convening meetings of the Management Committee will specify the matters to be considered at the meetings and any proposed resolutions and, unless agreed by a Representative appointed by each General Partner, no other matters will be considered.

(b)

At an adjourned or reconvened meeting, the Management Committee may only consider the matters set out in a notice of the original meeting of the Management Committee unless agreed by a Representative appointed by each General Partner.

7.4

Minutes

(a)

The Secretary (if appointed) or the Representatives (if no Secretary is appointed) will keep minutes of each meeting of the Management Committee.

(b)

Without prejudice to clause 8.4, a draft of the minutes of a meeting will be provided to the Representatives as soon as practicable after the conclusion of the meeting and, if approved by all Representatives, will be signed by the Chairman and, when so signed, will be conclusive evidence of the proceedings and decisions of the meeting to which they relate, except if they contain a manifest error.

8	Voting of Management Committee

8.1

Voting Entitlement of Representatives

(a)

Each Representative has one vote at a meeting of the Management Committee.

(b)

A Representative who has a conflict of interest must give the other Representatives notice of that interest and the Representative:

(i)

is permitted to attend and speak at meetings of the Management Committee at which any matter which comes within the scope of the conflict of interest is to be considered by the Management Committee; and

(ii)

will not be entitled to vote on any matter before the Management Committee which comes within the scope of the conflict of interest.

8.2

Decisions by simple majority vote

Subject to clause 8.3, all matters considered at a meeting of the Management Committee will be decided by a majority of votes cast by the Representatives. The Chairman will not have a casting vote in addition to his or her vote as a Representative.

8.3

Reserved Matters

No resolution or decision of the Management Committee and no resolution of any Board which is to approve a Reserved Matter, or the entry into of any agreement or arrangement to undertake a Reserved Matter, is effective unless it has the prior approval in writing of (or such resolution or decision is subject to the approval in writing of) each General Partner.

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8.4

Decisions contractually binding on Partners

Subject to clause 8.3, decisions of the Management Committee will be contractually binding on each Partner and the Partnership will be entitled to act on the basis of those decisions notwithstanding that the Partners have not received information on that decision.

8.5

Circulating resolutions

Subject to clause 8.3, a resolution in writing (notice of which has been given to each Representative) signed by a majority of Representatives (calculated excluding alternate Representatives from the total number of Representatives) who are entitled to vote on that resolution which must include at least one Representative appointed by each General Partner (subject to the Representatives from that General Partner not being precluded from voting in accordance with clause 8.1(b)) will be as valid and effectual as if it had been passed at a duly convened meeting of the Management Committee.

9	Profits and losses of Partnership

9.1

General Partner to receive income

The General Partners, acting through the Management Committee on behalf of the Partnership, will receive all Gross Income, and will pay or cause to be paid from them all costs and expenses incurred in respect of the Partnership and the Partnership Business and the investments and operations of the Partnership.

9.2

Determination of profits and losses

Subject to clause 19, the Profits or losses of the Partnership will be determined by the Management Committee at the end of each Financial Year in respect of that Financial Year and audited by the Auditor as soon as reasonably practicable following the end of that Financial Year.

9.3

Allocation of profits and losses to Partner Account

The Profits or losses of the Partnership in respect of each Financial Year will be attributed and allocated to each Partner’s respective Partner Account in their Respective Proportions as at the end of the Financial Year concerned in accordance with clause 10. For the avoidance of doubt, the parties acknowledge that no allocation of Profits or losses under this clause 9.3 will alter any Partner’s Capital Contribution.

10	Distributions

10.1

Distributions of Partnership and GWA Group

(a)

Subject to the Distribution Policy, the Management Committee may make distributions to each Partner out of available cash flows and such distributions must be designated as one or more of the following:

(i)

interest payable on outstanding Partner Loans;

(ii)

repayment of principal of outstanding Partner Loans;

(iii)

distributions of Profits; and/or

(iv)

distributions of capital returns,

with such designation subject to approval of the General Partners as a Reserved Matter.

(b)

Any distribution of Profits or capital returns made to each Partner in accordance with sub-clause 10.1(a) must be made:

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(i)

in proportion to their Respective Proportions as and when the Management Committee sees fit; or

(ii)

in disproportion to their Respective Proportions as and when the Management Committee sees fit, with the prior written consent of all the Partners.

(c)

Any amounts of Profits distributed under clause 10.1(a)(iii) will be attributed and allocated to that Partner’s respective current account balance of their Partner Account.

(d)

Any returns of capital distributed under clause 10.1(a)(iv) will be attributed and allocated to that Partner’s respective capital account balance of their Partner Account.

(e)

For the avoidance of doubt, the parties acknowledge that only distributions of capital returns under clause 10.1(a)(iv) will reduce any Partner’s Capital Contribution.

10.2

Tax withholding

To the extent that the Management Committee or any General Partner is required by any Law or any tax treaty to withhold or to make tax payments on behalf of or with respect to any Partner, the Management Committee or any General Partner must withhold such amounts or make such tax payments, as so required.

11	Additional Financing

11.1

Additional finance

(a)

Subject to clause 8.3, in the event that the Partnership or a member of the GWA Group requires further funding, such funding must be sought by the Management Committee, having regard to the following order of priority:

(i)

first, out of profits generated by the Partnership;

(ii)

second, by Third Party debt finance; and

(iii)

third, by way of Partner Loans, further capital contribution by the Partners or a combination of the two, in accordance with this clause 11.

(b)

Subject to clause 5.3(a), no Partner undertakes to provide any further funding (whether debt or equity finance) to the Partnership and acknowledges that this may result in the dilution of its Partnership Interest in accordance with this clause 11.

11.2

Call for further funding

(a)

Subject to clause 8.3, a funding notice ( Funding Notice ) may be issued by the Management Committee to the Partners if funding is not able to be obtained (out of profits generated by the Partnership or on reasonable terms in the case of clause 11.1(a)(ii) or the terms of any Third Party debt finance were not approved by the General Partners as a Reserved Matter).

(b)

A Funding Notice must be approved by each GP as a Reserved Matter and must be issued to each Partner on a pro-rata basis by reference to their existing Respective Proportions and specify:

(i)

what the funding is required for;

(ii)

the date for payment to the Partnership, which must be:

(A)

no less than 20 Business Days after the date of the Funding Notice, or

(B)

such other date as reasonably determined by the Management Committee if an Urgent Funding Event occurs;

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(iii)

the dollar amount of the funding required from each Partner in their Respective Proportions ( Funding Amount ); and

(iv)

whether the Funding Amount is to be provided by way of a Partner Loan, capital contribution by a Partner or a combination of the two; and

(v)

if the Funding Amount is to be provided by way of a further Capital Contribution, the Respective Proportion that the Partner will have on making a further Capital Contribution.

(c)

If a Funding Notice is issued in accordance with this clause 11.2, each Partner has:

(i)

5 Business Days; or

(ii)

if in respect of an Urgent Funding Event, such other period of time as reasonably determined by the Management Committee,

to notify the Management Committee and the other Partners as to whether or not it will accept the requirement to provide the Funding Amount in accordance with the Funding Notice ( Acceptance Notice ) and, if accepted, the Partner must provide the Funding Amount in accordance with the Funding Notice.

(d)

A Partner may nominate an Affiliate to provide all or any part of the Funding Amount called under a Funding Notice. Details of any such proposed Affiliate must be included in the relevant Acceptance Notice.

(e)

The terms of a Partner Loan must:

(i)

be approved by the Management Committee, and if the terms mean that it is a Reserved Matter, then approved in accordance with clause 8.3; and

(ii)

not allow for the relevant Partner Loan to be called unless each General Partner has approved in writing such a call,

and the Partners agree that a Partner Loan is not an increase of the capital of the Partner lending the Partner Loan and it does not entitle the Partner lending the Partner Loan to an increased share in the profits of the Partnership.

11.3

Failure to provide Funding Amount

The following provisions apply if a Partner ( Non-contributing Partner ) receives a Funding Notice and fails to provide an Acceptance Notice by the time required:

(a)

The Management Committee must as soon as practicable notify ( Shortfall Notice ) all Partners of each Non-contributing Partner’s identity and the Funding Amount each Non-contributing Partner was requested to fund ( Unpaid Amount ).

(b)

Each Partner ( Contributing Partner ) that has provided an Acceptance Notice may, as soon as practicable after receipt of the Shortfall Notice, notify ( Contribution Notice ) each other Partner and the Management Committee that it will pay all or part of the Unpaid Amount.

(c)

The Management Committee must as soon as practicable notify all Partners of the Contributing Partner’s identity and the amount of the Unpaid Amount each of the Contributing Partners has agreed to pay.

(d)

If all Contributing Partners agree to pay amounts which in aggregate are more than the Unpaid Amount, then such amounts shall be reduced pro-rata in their Respective Proportions as between those Contributing Partners.

(e)

If the Unpaid Amount is:

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(i)

funded as a Capital Contribution, then clauses 5 and 11.4 apply;

(ii)

received as a Partner Loan, then it must be in accordance with clause 11.2(e); and

(iii)

required to fund an Urgent Funding Event ( Urgent Amount ), each Non-contributing Partner has 30 days from the date a Contributing Partner paid the Urgent Amount to repay to the Contributing Partner the amount of the Urgent Amount paid by the Contributing Partner, plus interest accruing at the Interest Rate.

11.4

Dilution of Non-contributing Partner

(a)

If a Partner pays an Unpaid Amount in accordance with clause 11.3 (and, if in respect of an Urgent Funding Event, a Non-contributing Partner has not repaid the Urgent Amount in accordance with clause 11.3(e)(iii)), then that Contributing Partner is deemed to have paid an amount that is equal to 95% of the Unpaid Amount for new Partnership Interests which would otherwise have been issued to a Non-contributing Partner in respect of its proportion of the Unpaid Amount, such that the Respective Proportion of the relevant Partner who paid the Unpaid Amount will equal (expressed as a percentage):

LOGO

Where:

CPRP = that Contributing Partner’s Respective Proportion multiplied by the fair market value of the Partnership prior to receiving any contributions under the Funding Notice, plus the amount otherwise paid by the Contributing Partner as required by the relevant Funding Notice (not including the Unpaid Amount);

UA = the Unpaid Amount paid by that Contributing Partner to the Partnership; and

TCP = the fair market value of the Partnership following all contributions received following a Funding Notice.

“fair market value” is as determined by all of the Partners or, failing such agreement, as determined by an Independent Expert as at the date of the payment of the Unpaid Amount on the assumptions and bases in clause 17.4.

(b)

The Non-contributing Partner’s Respective Proportion will decrease by the same percentage amount as the Contributing Partner’s Respective Proportion increases as calculated in accordance with this clause 11.4. Where there is more than one Contributing Partner, the Non-contributing Partner’s Respective Proportion will decrease by the same percentage amount as the aggregate of the increases to each Contributing Partner’s Respective Proportion under this clause 11.4.

(c)

The General Partners must ensure that the Respective Proportions set out in the books of the Partnership reflect the revised Respective Proportions calculated in accordance with this clause 11.4.

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12	Transfer of Partnership Interests

12.1

Transfer of Partnership Interests generally

(a)

Subject to paragraphs (c) and (d) below, unless it obtains the prior written consent of all other Partners, a Partner must not Transfer any or all of its Partnership Interest during the Lock-up Period.

(b)

Subject to paragraphs (c) and (d) below, and subject always to the Transfer not being to a Prohibited Transferee, a Partner must not Transfer all or any of its Partnership Interest after the Lock-up Period without having first complied with:

(i)

clause 14 (Pre-emption right on Transfers);

(ii)

clause 15 (Tag Right); and

(iii)

clause 16 (Exit events),

unless it obtains the prior written consent of all other Partners.

(c)

A Partner may Transfer any or all of its Partnership Interest to a Permitted Transferee in accordance with clause 13 (Permitted Transfers).

(d)

A Partner may Transfer all (but not part) of its Partnership Interest by way of a Third Party Sale in accordance with clause 16 (Exit Events).

12.2

Stapled Partnership Interests

(a)

Subject to clause 12.3, each Partner’s Partnership Interest is stapled to that of its Related Partner(s) and any Transfer of a Partnership Interest by a Partner must be Transferred to the same transferee or an Affiliate of that transferee in the same proportions on a pro-rata basis, at the same time and in the same manner as the Partnership Interest of its Related Partner(s).

(b)

Subject to clause 12.3, a reference to a Partner Transferring its Partnership Interest in this Agreement is a reference to that Partner and its Related Partner(s) Transferring their respective Partnership Interests in accordance with clause 12.2(a).

12.3

Exceptions to Stapling

Each MIRA Limited Partner’s Partnership Interest is stapled to that Partner’s GP Proportion of Partnership Interests held by MIRA GP and the MIRA Limited Partner and MIRA GP must ensure that either:

(a)

any Transfer of a Partnership Interest by a MIRA Limited Partner is Transferred together with the relevant GP Proportion of the Partnership Interests held by MIRA GP to the same transferee or an Affiliate of that transferee; or

(b)

the relevant transferee, or an Affiliate of that transferee, acquires, at the same time that the MIRA Limited Partner Transfers its Partnership Interest, an interest in the MIRA GP that is referable to the Partnership Interests that would otherwise be required to be Transferred pursuant to clause 12.3(a)(i) above.

12.4

Effect of Transfer on application of this Agreement

(a)

A Transfer by a Partner ( Transferor ) of all or any of its Partnership Interests to the recipient of the Partnership Interest ( Transferee ), is not effective unless the Transferee agrees in writing to be bound by this Agreement by executing an Admission Certificate.

(b)

If a Partner Transfers its entire legal and beneficial Partnership Interest in accordance with this Agreement, then:

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(i)

this Agreement ceases to apply to that Partner except to the extent contemplated in clause 23.5; and

(ii)

this Agreement continues to apply to all other Partners in accordance with its terms and each Partner must perform its obligations under this Agreement in relation to any Transferee as if that person were a party to this Agreement.

12.5

Disclosures to Third Parties

(a)

Notwithstanding clause 12.5(b), a Partner must not engage in discussions or share any Confidential Information with any person that Competes with the Partnership.

(b)

A Partner may engage in discussions or share any Confidential Information with any Third Party in relation to a proposed Transfer provided that:

(i)

the Partner has notified in writing each other General Partner no less than 5 Business Days prior to any engagement or if approached by a Third Party, immediately upon that approach; and

(ii)

the Partner enters into a confidentiality agreement with the Third Party for the benefit of the Partnership and the Partnership Business as a whole on terms no less favourable than those set out in clause 23.

12.6

Non-complying Transfer ineffective

Any Transfer made in breach of this Agreement without the approval in writing of all Partners will be null and void and of no effect whatsoever.

13	Permitted Transfers

A Partner may Transfer any or all of its Partnership Interest to a Permitted Transferee subject to the Permitted Transferee not being a Prohibited Transferee (unless the Partner obtains the prior written consent of all of the Partners).

14	Pre-emption right on Transfers

(a)

All Transfers must first follow the procedure set out in this clause 14, unless the Transfer is to a Permitted Transferee. For the avoidance of doubt, any subsequent Transfer of such Partnership Interests must first follow the procedure set out in this clause 14.

(b)

If a Transferor wishes to Transfer all or any of its Partnership Interest ( Transfer Interest ) to a Third Party or another Partner, it must first offer the Transfer Interest to each other Partner ( Continuing Partner ) in their Respective Proportions (excluding the Transferor from such calculation) by written notice ( Transfer Notice ), with such notice being an irrevocable offer for the sale of the Transfer Interest.

(c)

A Transfer Notice must include the following:

(i)

the proportion of the Partnership represented by the Transfer Interest (expressed as a percentage);

(ii)

the proposed cash price in Australian currency for the Transfer Interest ( Transfer Price );

(iii)

the proportion of the Transfer Interest that Continuing Partner would receive, assuming that all Continuing Partners accept the offer to purchase the Transfer Interest, such proportion calculated pro-rata in their Respective Proportions as between the Contributing Partners ( Partner Entitlement );

(iv)

any other terms upon which the Transfer Interest is offered for sale; and

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(v)

an indication of the categories of potential Third Parties to whom the Transferor may Transfer the Transfer Interest pursuant to clause 14(j),

(together, Transfer Terms ).

(d)

If a Transferor has received a bona fide Third Party offer in writing for the Transfer Interest, the Transfer Notice must include the identity of the Third Party and be accompanied by a true and correct copy of such bona fide Third Party offer.

(e)

Subject to clause 14(f), a Transfer Notice constitutes an unconditional offer to Transfer the Transfer Interest on the Transfer Terms which must remain open for acceptance by the Continuing Partners for 30 days after the date of service of the Transfer Notice on the Continuing Partners ( Notice Period ).

(f)

The Transferor may revoke a Transfer Notice prior to the end of the Notice Period, provided that no Continuing Partner has accepted the offer to Transfer the Transfer Interest.

(g)

At any time during the Notice Period, any of the Continuing Partners may by notice in writing to the Transferor (with a copy to be provided to each other Partner) accept some or all of the Partner Interest offered to it in a Transfer Notice ( Accepting Partners ). Acceptances of offers made pursuant to this clause 14(g) must be unconditional other than any required approvals from any Government Agency.

(h)

If, within the Notice Period, the Transferor receives acceptances from Accepting Partners which in aggregate would be more than the amount of the Transfer Interest to be Transferred, the Transferor must agree to such acceptances on the basis that:

(i)

each Partner that accepted its Partner Entitlement receives its proportion of the Transfer Interest calculated pro-rata in their Respective Proportions as between the Accepting Partners; and

(ii)

if a Partner accepts the offer to Transfer less than its full Partner Entitlement:

(A)

that Partner receives such lesser amount of the Transfer Interest that it accepted; and

(B)

a proportion of the shortfall (arising from a Partner accepting less than its Partner Entitlement) is received by each other Accepting Partner who accepted their Partner Entitlement calculated pro-rata in their Respective Proportions as between the other Accepting Partners.

(i)

The Accepting Partners and the Transferor must effect the sale of the Transfer Interest to the Accepting Partners in accordance with the Transfer Terms, and do all things required of them in this regard as soon as is reasonably practicable after the end of the Notice Period and in any event by no later than 20 Business Days from the end of the Notice.

(j)

If, within the Notice Period, the Transferor receives offers from Accepting Partners for less than 100% of the Transfer Interest, the Transferor may, at any time within 6 months after the expiry of the Notice Period, Transfer all but not some of the Transfer Interest to one or more Third Parties that are not Prohibited Transferees at a price not less than the Transfer Price and on terms no more favorable to the Transferee than the Transfer Terms.

(k)

If the transfer of all of the Transfer Interest does not occur within the 6 month period set out in clause 14(j), the Transferor must not Transfer the Transfer Interest without first complying with the requirements set out in this clause 14 once more.

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15	Tag Right

15.1

Tag Notice

(a)

If:

(i)

a Transferor has complied with the procedure in clause 14 and the Transferor wishes to Transfer the Transfer Interest to a Third Party; and

(ii)

the Transfer Interest comprises 50% or more of all Partnership Interests at that time (including by way of a single transaction or series of related transactions),

then the Transferor must give a notice in writing ( Tag Notice ) to each of the other Partners in accordance with this clause 15.

(b)

Each of the other Partners has the right to require the Transferor to use its reasonable endeavours to cause the Third Party to purchase each Partner’s entire Partnership Interest in accordance with this clause 15 ( Tag Right ).

(c)

The Tag Notice must specify:

(i)

the proportion of the total Partnership Interests represented by the Transfer Interest (expressed as a percentage);

(ii)

the proportion of the Transferor’s Partnership Interest represented by the Transfer Interest (expressed as a percentage);

(iii)

the cash price in Australian currency for the Transfer Interest ( Tag Price );

(iv)

the identity of the Third Party who has made a bona fide offer to purchase the Transfer Interest at the Tag Price; and

(v)

any other terms (including any customary warranties required) upon which the Transfer Interest is offered for sale,

(together, Tag Terms ).

The Tag Price and the Tag Terms must not be more favourable than the Transfer Price and Transfer Terms notified under clause 14.

(d)

The Tag Notice must be accompanied by a true and correct copy of the bona fide offer for the Transfer Interest given in writing by the Third Party.

15.2

Exercise of Tag Right

(a)

Each of the other Partners may give a notice in writing to the Transferor ( Tag Acceptance ) stating that it, subject to clause 15.2(e), irrevocably elects to Transfer its entire Aggregate Partnership Interest ( Tag Interest ).

(b)

A Tag Acceptance must be in writing addressed to the Transferor and given to the Transferor within 10 Business Days of receipt by the relevant Partner ( Tag Partner ) of the Tag Notice.

(c)

Failure by a Partner to provide a Tag Acceptance within such 10 Business Day period will be deemed to be a waiver of its Tag Rights under this clause 15.

(d)

A Tag Partner may Transfer its entire Aggregate Partnership Interest to the Third Party in accordance with this clause 15 without the need to comply with the procedure set out in clause 14.

(e)

If a Tag Partner gives a Tag Acceptance, the Transferor may Transfer all or any of the Transfer Interest to the Third Party only if it procures that the Third Party acquires from

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each of the Tag Partners its Tag Interest at the Tag Price and on the Tag Terms at the same time as the Transfer Interest.

15.3

Completion of Transfer of Partnership Interest

(a)

Completion of the Transfer of the Transfer Interest and each Tag Interest must occur contemporaneously. If the Third Party fails to complete the purchase of the Tag Interest it agreed to acquire pursuant to this clause 15 within two months of the Tag Acceptance, then no Partner is permitted to consummate the proposed Transfer of either the Transfer Interest or Tag Interest, and any such attempted Transfer will be null and void; and:

(i)

the General Partners will not register any such purported Transfer; and

(ii)

the Third Party (or successor by operation of Law) will be deemed not to be a Partner arising from such transactions or proposed transactions and will not be entitled to any of the rights of a Partner arising therefrom.

(b)

If the Transferee requires the Transferor to provide reasonable warranties in relation to the Partnership Interest being Transferred and the assets and liabilities of the Partnership, each Tag Partner must agree in the Tag Notice to provide the same warranties to the Transferee in order to exercise its Tag Right.

16	Exit events

16.1

Exit Notice

(a)

A Partner must notify each other Partner in writing at any time that they wish to effect a Third Party Sale or seek an IPO ( Exit Notice ).

(b)

An Exit Notice must include reasonable details of the proposed Third Party Sale or IPO (as applicable).

16.2

Third Party Sale

Subject to first complying with clauses 14 and 15, a Partner may Transfer its entire Aggregate Partnership Interest by way of a Third Party Sale:

(a)

at any time after the expiry of the Lock-up Period, subject to the Transferee not being a Prohibited Transferee (unless approved with the prior written consent of all of the Partners); and

(b)

at any time during the Lock-up Period if the following conditions are satisfied:

(i)

the Transfer must result in a Return on Investment of no less than 250%;

(ii)

the Third Party Sale must not have been actively solicited by a Partner, any of its Affiliates or any of their advisors; and

(iii)

the Transferee must not be a Prohibited Transferee (unless approved with the prior written consent of all of the Partners).

16.3

IPO

(a)

Subject to first complying with clause 14, a Partner may seek an IPO of up to 100% of the Partnership with the prior approval of all of the Partners.

(b)

Each Partner shall be entitled to participate in an IPO on the same terms and conditions.

(c)

In the event of any IPO, this Agreement may be either terminated or amended in order to comply with applicable Laws and securities exchange regulations in connection with such IPO subject in either case to conditions to be agreed in good faith, such agreement on the part of each Partner not to be unreasonably withheld or delayed.

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16.4

Exit mechanics

In connection with clauses 16.1 to 16.3:

(a)

prior to the implementation of any IPO or Third Party Sale, the Partners must first follow the pre-emption rights procedure set out in clause 14 and, in respect of a Third Party Sale, the Tag Right procedure set out in clause 15. Once complied with, each Partner waives any further rights of pre-emption that Partner may have under this Agreement or otherwise in connection with or pursuant to such IPO or Third Party Sale;

(b)

each Partner and the Management Committee must use its best endeavours to procure that all steps are taken as are required (including any specific steps set out in the Exit Notice or any other steps notified by the Management Committee in writing from time to time) to obtain such IPO or effect such Third Party Sale, provided in each case that these steps are on terms no less favourable to any Partner;

(c)

each Partner appoints each of the Representatives as its agent to negotiate, procure and complete the sale of its Partnership Interest in conjunction with or pursuant to such IPO or Third Party Sale; and

(d)

each Partner agrees that the Tag Right in clause 15 has no operation in connection with the sale of the Partnership in conjunction with or pursuant to an IPO.

16.5

Warranties on exit

(a)

The Partners acknowledge that in the event of a Third Party Sale or an IPO the Partners will not be required to give any indemnities or any representations and warranties (other than as to title and capacity).

(b)

The parties must use reasonable endeavours to implement any measures which the General Partners agree are commercially reasonable for that purpose (such as warranty and indemnity insurance).

17	Defaulting Partner Transfers

17.1

Default Event

A Partner becomes a defaulting partner ( Defaulting Partner ) if:

(a)

a Material Breach of this Agreement is committed by or occurs in respect of that Partner, provided that, where the Material Breach is capable of remedy, the Partner fails to remedy the breach within 10 Business Days of the date that the Partner is notified by the Management Committee or any other Partner of the breach;

(b)

that Partner is prohibited from being a partner in the Partnership by a change in any Law;

(c)

an Insolvency Event occurs in relation that Partner; or

(d)

there is a Change of Control of that Partner,

(each a Default Event ).

17.2

Default Event Notice

(a)

Upon another Partner ( Non-defaulting Partner ) becoming aware of a Default Event, it may give notice ( Default Event Notice ) to the Defaulting Partner and the Management Committee.

(b)

A Default Event Notice given by a Non-defaulting Partner must: (i) state that the notice is given under this clause; and

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(ii)

identify the Default Event in respect of which the notice is given.

17.3

Defaulting Partner Transfer

(a)

If a Default Event occurs then any Non-defaulting Partner may cause a Transfer of the entire Partnership Interest of the Defaulting Partner by giving a written notice to each other Partner and the Management Committee.

(b)

If such a notice is received by the Management Committee, the Defaulting Partner is deemed to have given an irrevocable Transfer Notice in accordance with clause 14 and the procedure set out in clause 14 must be followed, subject to the following conditions:

(i)

the Transfer Interest is the Defaulting Partner’s entire Aggregate Partnership Interest;

(ii)

the Transfer Price is the Default Transfer Price calculated in accordance with clause 17.4; and

(iii)

the Notice Period will commence upon the date that the Independent Expert has notified the Non-defaulting Partners of the Default Transfer Price.

17.4

Transfer Price

If a Partner is deemed to have given a Transfer Notice pursuant to this clause 17, the Transfer Price ( Default Transfer Price ) for the relevant Transfer Interest must be 95% of its fair market value determined by all of the Partners or, failing such agreement, as determined by an Independent Expert as at the date of the Transfer Notice on the following assumptions and bases:

(a)

valuing the Transfer Interest is on an arm’s length sale between a willing vendor and a willing purchaser;

(b)

if the Partnership is carrying on business as a going concern, on the assumption that it is to continue to do so;

(c)

taking into account the then current Strategic Plan and Budget;

(d)

taking into account all amounts which the Transferor is obliged to pay to the other Partners or the Partnership under the terms of this Agreement (unless those amounts previously have been paid by or on behalf of the Transferor);

(e)

taking into account the stamp duty (if any) payable with respect to the Transfer of the Transfer Interest;

(f)

taking into account the rights and other restrictions attached to the Transfer Interest;

(g)

without taking into account whether the Transfer Interest does or does not (taken as a whole) confer any right of Control of the Partnership; and

(h)

taking into account any other information the Independent Expert reasonably thinks fit.

17.5

Reasonable endeavours

Each of the Partners must:

(a)

provide all information and assistance reasonably requested by the Independent Expert in connection with the determination of the Transfer Price under this clause 17; and

(b)

must use its reasonable endeavours to procure that the Independent Expert determines the Transfer Price within 20 Business Days of being requested to do so.

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18	Competition

18.1

Partners’ covenants not to compete with Partnership

(a)

For the sole purpose of protecting each Partner and the Partnership in respect of the goodwill of the Partnership, each Partner undertakes that it will not:

(i)

Compete with the Partnership; or

(ii)

entice (or attempt to entice) away from the GWA Group:

(A)

any customer of the GWA Group;

(B)

any supplier to the GWA Group; or

(C)

any employee of the GWA Group.

(b)

MCHPL must procure that, to the extent it or its Subsidiaries have the rights and powers (including veto powers) to do so, the businesses and assets owned or managed by any of MCHPL’s Subsidiaries operating within the Macquarie Infrastructure and Real Assets division of Macquarie Group Limited comply with the requirements of clause 18.1(a).

(c)

Each GW Partner must procure that its Affiliates comply with the requirements of clause 18.1(a).

18.2

Application of covenants

(a)

The covenants in clause 18.1 only apply during each of the specified periods referred to in clause 18.3 and in each of the specified areas referred to in clause 18.4.

(b)

The prohibition set out in clause 18.1 will not restrict any Partner or its Affiliates from holding or acquiring (directly or indirectly) in aggregate not more than 5% of the issued ordinary shares in the capital of any body corporate listed on a recognised securities exchange.

18.3

Specified periods

For the purposes of clause 18.2(a):

(a)

in respect of the prohibition set out in clause 18.1(a)(i), the specified period is during the time each Partner is a partner of the Partnership; and

(b)

in respect of the prohibition set out in clause 18.118.1(a)(ii), the specified period is during the time each Partner is a partner of the Partnership and the period of:

(i)

2 years after the date on which such Partner ceased to be a partner in the Partnership; or if that is unenforceable

(ii)

12 months after the date on which such Partner ceased to be a partner in the Partnership.

18.4

Specified areas

For the purposes of clause 18.2, the specified areas are:

(a)

Australia; or if that area is unenforceable;

(b)

New South Wales, South Australia, Queensland, Victoria, Western Australia and the Northern Territory; or if that area is unenforceable

(c)

New South Wales, South Australia and the Northern Territory.

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18.5

Construction and nature of restrictions

Each Partner acknowledges that each of the prohibitions and restrictions contained in clause 18.1 insofar as it relates to:

(a)

any of the activities referred to in clause 18.1 is separate, distinct and severable from any other activity set out in clause 18.1; and

(b)

any of the areas referred to in clause 18.4 is separate, distinct and severable from any other area set out in clause 18.4;

and the invalidity of such restraint in respect of:

(c)

any such activities will not affect its validity in respect of any of the other activities; and

(d)

any such areas will not affect its validity in respect of any of the other areas.

It is the intention of the parties that all combinations of the prohibitions and restrictions will apply and be enforceable and that only those which a Court, in exercising its discretion, may hold to be an unreasonable restraint of trade will be severed.

18.6

Remedies

The Partners acknowledge that:

(a)

each of the prohibitions and restrictions contained in this clause 18 is reasonable as to period, territorial limitations and subject matter;

(b)

each of the prohibitions and restrictions contained in this clause 18 confers a benefit on the Partnership which is no more than that which is reasonably and necessarily required by the Partners for the maintenance and protection of the goodwill of the Partnership Business; and

(c)

breach of any of the prohibitions and restrictions contained in this clause 18 may not adequately be compensated by an award of damages and any breach by a Partner of any of those prohibitions and restrictions will entitle the non-breaching Partners, in addition to any other remedies available at Law or in equity, to seek an injunction to restrain the committing of any breach (or continuing breach) of any of those prohibitions or restrictions.

19	Process upon dissolution

19.1

Application of proceeds on dissolution

As soon as practical (and in any event within 60 days) after the date on which the Partnership is dissolved in accordance with clause 3.4, the General Partners must sell, call in and convert the Partnership Property into money, and apply the proceeds in the following order of priority:

(a)

in payment of or provision for the costs, charges, liabilities (whether actual or contingent), expenses, claims and demands incurred, made or anticipated by each General Partner in connection with the Partnership or arising out of the termination of the Partnership;

(b)

in reimbursement of each General Partner for payments for which it is entitled to be reimbursed in accordance with clause 6.15 and indemnified in accordance with clause 4.3;

(c)

in payment to the Partners of the positive balances in their respective Partner Accounts, reduced in their Respective Proportions if the remaining net proceeds of sale and the balance of the Partnership are insufficient for a full distribution to each Partner entitled to receive any such payment, upon the execution by the Partners in favour of each General Partner of such releases as may reasonably be required; and

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(d)

in payment to the Partners of any surplus balance of the Partnership Net Assets in their Respective Proportions.

19.2

If no General Partner

If all General Partners have retired or are otherwise unable or unwilling to continue to perform their duties under this clause 19, the remaining Partners must nominate a person to carry out those duties.

19.3

Distribution of assets

Without limiting the generality of clause 19.1, before dissolution of the Partnership, the Partners must unanimously agree that, after making proper provision for the discharge and repayment of all debts, liabilities and expenses of the Partnership, some or all of the assets of the Partnership should:

(a)

be distributed in kind; or

(b)

be sold to any Partner or other person for cash or valuable consideration.

19.4

Final statement

(a)

Upon applying or distributing the net proceeds of sale and the balance of the Partnership Net Assets, the General Partners must give to each Partner a final statement setting out the details of the sale, calling in and conversion of the Partnership Property and the distribution and all payments otherwise made or allowed for.

(b)

Each General Partner shall then be released from all further duties and obligations under this Agreement, without prejudice to any liability of that General Partner incurred under this Agreement to the Partners or any of them or any breach of its duties imposed by Law under this Agreement or otherwise.

20	Disputes

20.1

Disputes

(a)

Upon the occurrence of any dispute, controversy or claim arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination (a Dispute ), the Management Committee or a Partner may give notice to each Partner requiring that the Dispute be resolved in accordance with this clause 20 ( Dispute Notice ).

(b)

The parties to a Dispute will first seek to resolve the Dispute by way of negotiations between senior executives, as nominated in writing by each Partner with authority to resolve the Dispute.

(c)

Any Dispute not resolved by negotiations within 10 Business Days of giving a Dispute Notice or such other longer period agreed between the parties to the Dispute, will be referred to and finally resolved by way of negotiations between the senior partner(s) or chief executive officer of each Partner.

(d)

If the parties fail to resolve the Dispute within 20 Business Days of receipt of the Notice of Dispute or such other longer period agreed between the parties to the Dispute, the parties may take whatever action they consider necessary to resolve the Dispute.

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20.2

Communications without prejudice

Communications between the parties during the process set out in clause 20.1, whether oral or in writing, will not be admissible as evidence in any legal process unless in writing and signed by both parties.

20.3

Continued performance of the agreement

Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this Agreement.

20.4

Court proceedings

A party may not start court proceedings in relation to a Dispute until it has exhausted the procedures in this clause 20, unless the party seeks injunctive or other interlocutory relief.

21	Third Party Claims

21.1

Conduct of Third Party Claims

If a Claim is made by a Third Party against the Partnership or all or any of the Partners in their capacity as Partners of the Partnership (a Third Party Claim ), the Partners agree that all decisions in relation to the conduct of such claim including, without limitation, decisions relating to:

(a)

payment, settlement or compromise of a Third Party Claim;

(b)

any admission in respect of a Third Party Claim;

(c)

the defence of a Third Party Claim; or

(d)

the engagement and instruction of external solicitors or other advisers relating to the Third Party Claim,

will be taken by the Management Committee, subject to obtaining any General Partner approval if required as a Reserved Matter.

21.2

Funding Third Party Claims

The Partners agree that any funding required for a Third Party Claim must be provided in accordance with clause 11.

22	Partner matters

22.1

Duties of Partners

Each Partner must:

(a)

use its best endeavours and work diligently for the benefit of the Partnership;

(b)

be just and faithful to the other Partners in all matters relating to the Partnership and must report to and provide complete and accurate information and explanations of all matters relating to the Partnership to the other Partners;

(c)

punctually pay and discharge the Partner’s separate and private debts and engagements and indemnify the other Partners against any liability in respect of them;

(d)

use the name of the Partnership in all transactions of the Partnership, but a Partner may not (while a Partner or at any subsequent time) use the name of the Partnership except in relation to the Partnership Business;

(e)

devote such time and attention to the Partnership as the Partners from time to time decide;

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(f)

maintain all authorisations, permits and licenses required by the Partner to conduct the Partnership (if any); and

(g)

make good to the Partnership any loss suffered by the Partnership arising from a breach of this Agreement by that Partner.

22.2

Restrictions on Partners

Unless otherwise permitted by the terms of this Agreement, each Partner must not, without obtaining the prior written agreement of all of the Partners, do any of the following:

(a)

lend any money belonging to the Partnership;

(b)

enter into any bond or guarantee or become bail, surety or security with or for any person or do or knowingly suffer anything by which, or by reason of which, the capital or any Partnership Property may be seized, attached or taken in execution;

(c)

sell, purchase, receive, take or otherwise employ any of the money, goods, or any other Partnership Property;

(d)

on behalf of or in the name of the Partnership:

(i)

invest any money or create a reserve fund;

(ii)

acquire, lease or sell any Partnership Property;

(iii)

borrow money or give any security over Partnership Property in respect of any loan;

(iv)

compromise or release any claim or debt vested in the Partnership;

(v)

bring in an additional Partner; or

(vi)

vary the nature of the Partnership.

22.3

Representations and Warranties of Partners

Each Partner represents and warrants to each other Partner that:

(a)

it is validly existing in its place of incorporation;

(b)

it has all requisite corporate and other legal authority to carry on its business in every jurisdiction under the Laws of which the nature of its business requires it to be qualified there to do business;

(c)

it has taken all corporate action required or necessary for the authorisation, execution, delivery and performance of this Agreement;

(d)

when accepted by the other Partners, this Agreement will constitute a valid and binding obligation that will be enforceable against it in accordance with its terms (subject only to limitations on enforceability that might result from bankruptcy, insolvency or other similar Laws affecting creditors’ rights generally);

(e)

it has no knowledge of any material adverse action, suit or proceeding pending or threatened against it that may have a material adverse effect upon it performing its obligations under this Agreement;

(f)

neither the execution of this Agreement, nor the consummation of the transactions contemplated by it, nor the fulfilment of or compliance with the terms and conditions contained within it, will conflict with its constituent documents, or will result in a breach of, or constitute a conflict or default under, any material contract, agreement or instrument to which it is a party or by which it or its assets or personnel are bound; and

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(g)

the foregoing representations and warranties will continue to be true and correct during the continuance of this Agreement.

22.4

Continuation of Partnership

The parties agree that the Partnership will continue in full force and effect upon the admission of an incoming Partner.

22.5

Limitation of liability of the Trustees

(a)

Each Trustee enters into this Agreement in its capacity as trustee of the Relevant Trust and in no other capacity.

(b)

The parties acknowledge that each Trustee incurs the relevant Trustee Liabilities solely in its capacity as trustee of the Relevant Trust.

(c)

Subject to sub clause 22.5(e), a Trustee Liability may be enforced against the relevant Trustee only to the extent to which:

(i)

the Trustee is actually indemnified in respect of that Trustee Liability out of the property of the Relevant Trust; and

(ii)

(d)

Subject to sub clause 22.5(e), no person will be entitled to:

(i)

claim from or commence proceedings against the Trustee in respect of any Trustee Liability in any capacity other than as trustee of the Relevant Trust;

(ii)

enforce or seek to enforce any judgment in respect of any Trustee Liability against any property of the Trustee other than property held by the Trustee as trustee of the Relevant Trust;

(iii)

(iv)

(e)

The restrictions in clauses 22.5(c) and 22.5(d) do not apply to any Trustee Liability to the extent to which there is, whether under the constituent documents of the relevant Trust or by operation of Law, a reduction in the extent of the Trustee’s indemnification, or in respect of which the Trustee is not entitled to be indemnified, out of the property of the Relevant Trust, as a result of the Trustee’s fraud, gross negligence or breach of trust.

(f)

A Trustee’s Liability for the purposes of clause 22.5(e) will be reduced to the extent to which the act or omission was caused or contributed to by any failure of another Party to fulfil its obligations relating to the Relevant Trust or by any other act or omission of that other Party.

(g)

No attorney, agent or other Person appointed in accordance with this document has authority to act on behalf of the Trustee in its personal capacity in a way which exposes the Trustee to any personal liability, and no such act or omission of such Person will be

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considered fraud, gross negligence or breach of trust of the Trustee for the purposes of clause 22.5(e).

(h)

23	Confidentiality

23.1

Confidentiality

Subject to clause 23.2, each Partner must not disclose the terms of this Agreement, or any unpublished information in connection with the Partnership or Partnership Business or documents supplied by any other person in connection with the Partnership, Partnership Business or this Agreement (collectively, Confidential Information ).

23.2

Permitted disclosure

A Partner may disclose Confidential Information:

(a)

to another Partner;

(b)

to its Affiliates;

(c)

to its Permitted Transferees;

(d)

under corresponding obligations of confidence as imposed by this clause, to its legal and financial advisors and auditors;

(e)

to its direct and indirect investors or potential investors where disclosure is required for the purpose of raising further funds by the Partner or reporting obligations to its investors and, any Partner or its direct or indirect investors may make the following information available on their respective public websites and such information is not Confidential Information for the purposes of this Agreement:

(i)

the asset category of the Partnership Business;

(ii)

the manager of the investment by the Partners in the Partnership Business;

(iii)

the location of the Partnership Business;

(iv)

the name and address of the Partnership and each Partner;

(v)

an indication of the market value of the Partnership Business and the investment within the following bands – EURO 0-50 million, EURO 50 -100 million, EURO 100-250 million, EURO 250 – 500 million and EURO 500 – 1000 million; and

(vi)

the year of formation of the Partnership and the year in which a Partner invested in the Partnership;

(f)

(g)

if required under a binding order of a Government Agency or under a procedure for discovery in any proceedings;

(h)

if required under any Law or any rules or regulations of any recognised securities exchange, administrative guideline, directive, request or policy (including administrative guidelines, directives, requests or policies of a Government Agency) whether or not

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having the force of Law and, if not having the force of Law, the observance of which is in accordance with the practice of responsible corporate entities;

(i)

as required or permitted by this Agreement; or

(j)

with the prior written consent of all of the Partners.

23.3

Return of Confidential Information

(a)

Upon a Partner ceasing to be a partner in the Partnership ( Ceasing Partner ), the Ceasing Partner must, at its own expense and on demand by any other Partner either (at the Ceasing Partner’s option):

(i)

return all Confidential Information to the Management Committee; or

(ii)

permanently destroy or delete all Confidential Information, however recorded or stored,

and ensure that its Affiliates do the same.

(b)

The return, destruction, deletion, erasure or retention of Confidential Information in compliance with this clause 23 does not relieve the Ceasing Partner from its obligations of confidentiality under this Agreement.

(c)

Despite clause 23.3(a), but subject to clause 23.3(b), the Ceasing Partner or any Affiliate of a Ceasing Partner may retain any Confidential Information it requires (acting reasonably and only for as long as is reasonably required):

(i)

to fulfil legal, regulatory or reporting obligations or for the purposes of any professional standards, ethical standards, practices, codes or insurance policies applicable to the Ceasing Partner or its Affiliate;

(ii)

as included in the directors’ papers or investment committee papers of the Ceasing Partner or an Affiliate or the minutes of the board of directors (or comparable body) or investment committee of the Ceasing Partner or an Affiliate; or

(iii)

due to such Confidential Information being stored electronically pursuant to an existing routine data back-up exercise on servers or back-up sources of the Ceasing Partner or an Affiliate as long as the relevant Confidential Information is deleted from local hard drives and no attempt is made to recover it from those servers or back-up sources other than as required by Law,

( Retained Information ), provided that the Ceasing Partner or Affiliate (as applicable):

(iv)

discloses to the Management Committee what the obligation is; and

(v)

adopts or maintains reasonable security arrangements to minimise the risk of disclosure and loss of the confidential nature of the information.

23.4

Remedies

(a)

Each Partner acknowledges that the obligations contained in this clause 23 are not in substitution for any obligations that each Partner may now owe, or subsequently owe, to each other and that exist apart from this clause 23. This clause 23 does not replace any right that each Partner has with respect to those obligations.

(b)

Each Partner acknowledges that damages will not be an adequate remedy for a breach of this clause 23 (including any misuse by any Affiliate or a Representative) and that a Partner may seek specific performance or injunctive relief as a remedy for any actual or

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threatened breach of this clause 23, in addition to any other remedies available at Law or in equity under or independently of this Agreement.

23.5

Survival of obligation

This clause 23 survives termination of this Agreement.

24	General

24.1

Notices

Any notice, demand, approval, consent, waiver, request or other communication ( Notice ) given or made under this Agreement:

(a)

must be in writing and signed by a person duly authorised by the sender;

(b)

must be delivered to the intended recipient by prepaid post (if posted to an address in another country, by registered airmail) or by hand, fax or electronic mail to the address, fax number or electronic mail address below or the address, fax number or electronic mail address last notified by the intended recipient to the sender:


(i)	to GW GP or GW LP:	Genesee & Wyoming Inc.
	to GW GP or GW LP:	20 West Avenue

		Darien, Connecticut 06820

		United States

		Attention: General Counsel

		Fax No: +1 203 656 1092

		Email: afergus@gwrr.com

(ii)	to MIRA GP, MAIF LP or MAIT LP:	Level 6, 50 Martin Place, Sydney
		NSW 2000
		Attention: Company Secretary

		Fax No: +61 2 8232 6510

		Email: miralegal@macquarie.com

(iii)	to PGGM LP	Level 6, 50 Martin Place, Sydney
		NSW 2000

		Attention: Company Secretary

		Fax No: +61 2 8232 6510

		Email: miralegal@macquarie.com

		With a copy to:

		PGGM Vermogensbeheer B.V.,
		acting in its capacity as fund manager
		of PGGM Infrastructure Fund 2016

		Attention: Han Claessens and David
		Wilcox

		Email: Address to each of:

		infra@pggm.nl;

		han.claessens@pggm.nl; and

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		david.wilcox@pggm.nl

(iv)	to MCHPL:	Level 6, 50 Martin Place, Sydney
		NSW 2000

		Attention: Company Secretary

		Email: MIRALegal@macquarie.com

(c)

will be taken to be duly given or made:

(i)

in the case of delivery in person, when delivered;

(ii)

in the case of delivery by post 4 Business Days after the date of posting (if posted to an address in the same country) or 8 Business Days after the date of posting (where posted to an address in another country);

(iii)

in the case of fax, on receipt by the sender of a transmission control report from the despatching machine showing the relevant number of pages and the correct destination fax machine number and or name of recipient indicating that the transmission has been made without error; and

(iv)

in the case of electronic mail, on the first to occur of:

(A)

receipt by the sender of an email acknowledgement from the recipient’s information system showing that the Notice has been delivered to the email address stated above;

(B)

the time that the Notice enters an information system which is under the control of the recipient; and

(C)

the time that the Notice is first opened or read by an employee or officer of the recipient,

but if the result is that a Notice would be taken to be given or made on a day that is not a Business Day in the place to which the Notice is sent or is later than 4pm (local time), it will be taken to have been duly given or made at the start of business on the next Business Day in that place.

24.2

Status of Limited Partnership

If at any time it is determined that contrary to the terms of this Agreement and the intention of the Partners, the Partnership was not properly constituted as a limited partnership, each Partner agrees that the terms and conditions of this Agreement shall continue to govern their relationship, including their interests in the Partnership Property, their allocation of the income, gain, loss or proceeds of sale of the Partnership Property, the responsibility for liabilities of the Partnership and the authority of the General Partners in respect of the Partnership Property and the Partnership Business.

24.3

Entire Agreement

This Agreement contains the entire agreement between the Partners with respect to its subject matter. It sets out the only conduct relied on by the Partners and supersedes all earlier conduct and prior agreements and understandings between the Partners in connection with its subject matter.

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Limited Partnership Agreement

for G&W Australia Holdings LP

24.4

Amendment

Subject to any approval required by the Act, and the unanimous consent in writing of the General Partners, each Partner may by deed poll supplemental to this Agreement or agreement in writing with all of the Partners alter, modify, add to or cancel the provisions of this Agreement:

(a)

in the manner and to the extent as required to satisfy the requirements of any statute, ordinance, rule, regulation or by-Law which may be passed and which affects limited partnerships or the Partnership and Partnership Business;

(b)

in the manner and to the extent as may be required to enable the provisions of this Agreement to be more conveniently, profitably or economically administered or managed provided that:

(i)

each General Partner is of the opinion that the alteration, modification, addition or cancellation does not materially and adversely affect the interests of the Partners as a whole; and

(ii)

if any General Partner is not of that opinion, the alteration, modification, addition or cancellation is required to be approved by all of the Partners; and

(c)

in any other manner and to the extent which may be approved by all of the Partners.

Written notice of all the alterations, additions, modifications or cancellations of or to the provisions of this Agreement must be given to all of the Partners, but any accidental omission in that regard shall not invalidate the effect of any amendment.

24.5

Assignment

A party must not assign any of its rights under this Agreement, or attempt or purport to do so, otherwise than in connection with a Transfer of its Partnership Interest in accordance with this Agreement, unless otherwise agreed by all of the Partners in writing.

24.6

Counterparts

This Agreement may be executed and delivered in any number of counterparts. All counterparts together will be taken to constitute one instrument. Each Partner that has executed a counterpart of this Agreement may exchange that counterpart with another Partner by hand delivering, delivering by post, faxing or sending by electronic mail the counterpart executed by it to that other Partner.

24.7

Severability of provisions

24.8

Discretion in exercising rights

Each Partner may exercise a right or remedy or give or refuse its consent in any way it considers appropriate (including by imposing conditions), unless this Agreement expressly states otherwise.

24.9

Remedies cumulative

The rights and remedies provided in this Agreement are in addition to other rights and remedies given by Law independently of this Agreement.

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Limited Partnership Agreement

for G&W Australia Holdings LP

24.10

Rights and obligations are unaffected

Rights given to each Partner under this Agreement and each Partner’s liability under it are not affected by anything which might otherwise affect them by Law.

24.11

Waiver

A failure to exercise or a delay in exercising any right, power or remedy under this Agreement does not operate as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.

24.12

Further steps

Each Partner agrees, at its own expense, to do anything any other Partner asks (such as obtaining consents, signing and producing documents and getting documents completed and signed):

(a)

to bind the Partner and any other person intended to be bound under this Agreement; and

(b)

to carry out and implement the intent and purpose of this Agreement.

25	Governing law and jurisdiction

25.1

Governing law

This Agreement is governed by the law in force in South Australia.

25.2

Jurisdiction

Each Partner submits to the non-exclusive jurisdiction of the courts of South Australia and courts of appeal from them. Each Partner waives any right it has to object to an action being brought in those courts including, without limitation, by claiming that the action has been brought in an inconvenient forum or that those courts do not have jurisdiction.

25.3

Supervening legislation

Any present or future legislation which operates to vary the obligations of a Partner in connection with this Agreement with the result that another Partner’s rights, powers or remedies are adversely affected (including, by way of delay or postponement) is excluded except to the extent that its exclusion is prohibited or rendered ineffective by Law.

25.4

Service of process

(a)

(b)

GW LP irrevocably appoints GW GP as its agent for the service of process in Australia in relation to any matter arising out of this Agreement. If GW GP ceases to be able to act as such or have an address in Australia, GW LP agrees to appoint a new process agent in Australia and deliver to the other parties within 2 Business Days a copy of a written acceptance of appointment by the process agent, upon receipt of which the new appointment becomes effective for the purpose of this Agreement. GW LP must inform the other parties in writing of any change in the address of its process agent within 2 Business Days of the change.

page 52

Limited Partnership Agreement

for G&W Australia Holdings LP

Schedule 1

Capital Contributions and Respective Proportion as at Investment Date

Part A – General Partners


Partners	Capital Contributions		Respective Proportion
GW GP	$	3,103,151.00		0.511	%
MIRA GP	$	4,053,810.00		0.489	%

Part B – Limited Partners


Partners	Capital Contributions		Respective Proportion
GW LP	$	307,211,949.00		50.58900	%
MAIF LP	$	200,663,595.00		24.20550	%
MAIT LP	$	100,331,797.50		12.10275	%
PGGM LP	$	100,331,797.50		12.10275	%

NOTE: It is noted that this Schedule 1 sets out the Capital Contributions and Respective Proportions for each Partner as at the Investment Date. As the Partnership existed as at the Investment Date, the amount of Capital Contribution shown above for each GW Partner reflects the agreed historical Capital Contributions, including for the purposes of clause 4. For the avoidance of doubt, it is noted that the agreed relative capital contributions of the partners is as specified above as the Respective Proportions, which for the GW Partners is equal to 51.1% in the aggregate (being a notional amount (for the purpose only of calculating the Respective Proportions) of $4,236,190 for GW GP and $419,382,810 for GW LP).

page 53

Limited Partnership Agreement

for G&W Australia Holdings LP

Schedule 2

Admission Certificate

From [#date#], [#insert name#] ( New [General/Limited] Partner ) of [#insert address#] will be admitted as a [general/limited] partner to the G&W Australia Holdings Limited Partnership on the terms of the Limited Partnership Agreement for G&W Australia Holdings LP dated [#insert date#] between GWI International Pty Ltd and Scissor Holdings Pty Ltd (each as a general partner) and GWI Holding B.V., Macquarie Specialised Asset Management Limited as trustee for the MAIF Investment Trust, Macquarie Australian Infrastructure Management 1 Limited as trustee for the Scissor Holdings Trust, Macquarie Australian Infrastructure Management 1 Limited as trustee for the PGGM Ibis LP Trust (each as a limited partner) and Macquarie Corporate Holdings Pty Ltd and the terms of this Admission Certificate.

The New [General/Limited] Partner agrees to make the capital contribution set out below on the date specified.

Capital Contribution


Partner	Amount / Asset	Date of contribution
[insert name of person being admitted]	[insert date]	[insert amount]

Signed on behalf of G&W Australia Holdings Limited Partnership by [insert name of a General Partner] as general partner.

Signed by [New Partner].

Date:

page 54

Limited Partnership Agreement

for G&W Australia Holdings LP

Schedule 3

Reserved Matters

A Reserved Matter means:

(a)

( key management appointments ) the appointment and terms of employment (excluding remuneration set in accordance with clause 6.21) of the Chief Executive Officer and the Chief Financial Officer of the GWA Group;

(b)

( Strategic Plan ) the adoption of and any material amendments to the Strategic Plan;

(c)

( material acquisitions ) any sale, transfer, lease, assignment, disposal or acquisition of any business or operating assets by the Partnership or any member of the GWA Group where the value of such business or assets is greater than $10 million;

(d)

( merger or consolidation ) the entry by the Partnership or any member of the GWA Group into of any merger or consolidation;

(e)

( business acquisition ) the entry into by the Partnership or any member of the GWA Group of any partnership or joint venture;

(f)

( material contracts ) the approval of the entry into, termination or material amendment of any commitment or contract or series of directly related commitments or contracts with the same counterparty that have the effect of a single agreement (such as multiple enterprise bargaining agreements involving the same union):

(i)

with annual revenue or expense of $10 million or more; or

(ii)

which would require the Partnership and/or any member of the GWA Group to fund $10 million or more of capital expenditure;

(g)

( material financing ) any incurrence or amendment by the Partnership or any member of the GWA Group of any debt (including any hire purchase or asset lease arrangement), granting of guarantee or security over the assets of the Partnership or any member of the GWA Group, with a value greater than $10 million;

(h)

( capital structure changes ) any restructure of the capital of the Partnership or GWA Group including any grants of new Partnership Interests or other equity interests in the Partnership or any member of the GWA Group and entering into or amending any Partner Loans;

(i)

( tax ) any actions that may materially affect the tax status of a Partner, including changes to tax policies of the Partnership or the GWA Group;

(j)

( Related Party Transactions ) any Related Party Transaction;

(k)

( Approved Expenses ) any expense incurred by a Partner that is payable by the Partnership;

(l)

( distribution policy ) the adoption of or amendments to the Distribution Policy from time to time and approving any Dividend or other distribution not in accordance with the Distribution Policy;

(m)

( insolvency ) the appointment of an administrator, liquidator or an arrangement with creditors in respect of the Partnership or any member of the GWA Group;

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Limited Partnership Agreement

for G&W Australia Holdings LP

(n)

( litigation ) any commencement, settling or compromising of any litigation, administrative proceeding, regulatory process or dispute where the Partnership or GWA Group is party to the proceedings where the amount of a claim is greater than $10 million;

(o)

( materiality levels ) any increase to the materiality level of $10 million in the Reserved Matters (which, for the avoidance of doubt, apply in each case on a per matter basis, and not an aggregated basis, unless expressly stated), which shall be considered from time to time such that ordinary course decision making remains with the Management Committee; and

(p)

( Share Sale Agreement ) unless permitted under the terms of the partnership investment agreement entered into between GW Inc, MAIF LP, MAIT LP and MIRA GP dated on or about 14 October 2016, the provision of any consent, agreement, approval or the issue of any notice under or in connection with the share sale agreement dated 20 October 2016 between Glencore Coal Pty Limited, GWI Acquisitions Pty Ltd, Genesee & Wyoming Inc. and Glencore Operations Australia Pty Limited ( Share Sale Agreement ). Each General Partner will be deemed to have given its consent for the purposes of this paragraph (p) if that General Partner does not, within a period of time that is reasonable in the context of the matter to which the consent relates, notify the other General Partners and the Management Committee that it does not approve the relevant action. In this paragraph (p), a reasonable period of time means within 72 hours after being notified by a General Partner or the Management Committee of a proposed action or such shorter period as required under the Share Sale Agreement.

page 56

Limited Partnership Agreement

for G&W Australia Holdings LP

Each attorney executing this Agreement states that he or she has no notice of the revocation or suspension of his or her power of attorney.

Executed as an Agreement.

GW GP

Executed in accordance with section 127 of

the Corporations Act 2001 by GWI

International Pty Ltd :



Director Signature				Director/Secretary Signature


Print Name				Print Name


GW LP

Signed by GWI Holding B.V. in the presence of:



Signature of witness (block letters)				Managing Director A


Name of witness (block letters)				Managing Director B

				By executing this Agreement each signatory warrants that the signatory is duly authorised to execute this Agreement on behalf of GWI Holding B.V.

Limited Partnership Agreement

for G&W Australia Holdings LP


MIRA GP

Executed in accordance with section 127 of the Corporations Act 2001 by Scissor Holdings Pty Ltd :


Director Signature				Director/Secretary Signature


Print Name				Print Name

MAIF LP

Executed for and on behalf Macquarie Specialised Asset Management Limited ACN 087 382 965 as trustee for the MAIF Investment Trust ABN 56 501 013 400 by its attorneys under power of attorney dated 16 December 2015 who upon signing this document state that they have no notice of the revocation of this power of attorney:


Signature of witness				Signature of attorney


Name of witness (BLOCK LETTERS)				Name of attorney (BLOCK LETTERS)


Address of witness				Signature of attorney


				Name of attorney (BLOCK LETTERS)

Limited Partnership Agreement

for G&W Australia Holdings LP


MAIT LP

Executed for and on behalf Macquarie Australian Infrastructure Management 1 Limited ACN 077 595 012 as trustee for the Scissor Holdings Trust ABN 60 744 504 418 by its attorneys under power of attorney dated 21 June 2016 who upon signing this document state that they have no notice of the revocation of this power of attorney:


Signature of witness				Signature of attorney


Name of witness (BLOCK LETTERS)				Name of attorney (BLOCK LETTERS)


Address of witness				Signature of attorney


				Name of attorney (BLOCK LETTERS)

Limited Partnership Agreement

for G&W Australia Holdings LP


MCHPL

Signed for and on behalf of Macquarie Corporate Holdings Pty Limited ACN 096 705 109 by its duly authorised attorneys under power of attorney dated 30 November 2016 who, upon signing this document, state that they have received no notice of the revocation of this power of attorney in the presence of:


Signature of witness				Signature of attorney


Name of witness (BLOCK LETTERS)				Name of attorney (BLOCK LETTERS)


Address of witness				Signature of attorney


				Name of attorney (BLOCK LETTERS)

Limited Partnership Agreement

for G&W Australia Holdings LP


PGGM LP

Executed for and on behalf Macquarie Australian Infrastructure Management 1 Limited ACN 077 595 012 as trustee for the PGGM Ibis LP Trust ABN 88 741 842 754 by its attorneys under power of attorney dated 21 June 2016 who upon signing this document state that they have no notice of the revocation of this power of attorney:


Signature of witness				Signature of attorney


Name of witness (BLOCK LETTERS)				Name of attorney (BLOCK LETTERS)


Address of witness				Signature of attorney


				Name of attorney (BLOCK LETTERS)

Limited Partnership Agreement

for G&W Australia Holdings LP

Annexure A

Initial Distribution Policy

(a)

Subject to any restrictions in the Finance Documents and applicable Law, the Management Committee must require that each GWA Group entity distribute 100% of its available cash flows each Financial Year at quarterly intervals, provided that each retain such amount of the cash flows to ensure that each:

(i)

can maintain adequate capital reserves;

(ii)

has sufficient working capital;

(iii)

can meet all of its solvency requirements;

(iv)

has sustainable debt finance leverage; and

(v)

has sufficient cash for budgeted capital expenditures as well as capital expenditures otherwise approved by the Management Committee or pursuant to Schedule 3 item (f).

(b)	The Management Committee may agree to modify the structure of retention and distribution of cash flows by the Partnership to accommodate any reasonable request by any Partner where the request does not have any adverse effect on the Partnership or other Partners.


Partnership Investment Agreement

Schedule 5

Plant and Equipment

(as at 30 September 2016)

Locomotives


Loco #		Class
701		700
703		700
705		700
850		830
844		830
904		900
902		900
1204		1200
1301		1300
1302		1300
1304		1300
1907		1907
2210		2200
2216		2200
ALF18		ALF
ALF19		ALF
ALF20		ALF
ALF21		ALF
ALF22		ALF
ALF23		ALF
ALF24		ALF
ck3		CK
ck4		CK
CLF5		CLF
CLF6		CLF
CLP8		CLP
CLP16		CLP
CLP17		CLP
FJ104		FJ
FJ105		FJ
FQ1		FQ
FQ2		FQ
FQ3		FQ
FQ4		FQ
G533		G
G535		G


Partnership Investment Agreement


GM37		GM
GM40		GM
GM43		GM
GM45		GM
GM46		GM
GM47		GM
GM45		GM
GWA1		GWA
GWA2		GWA
GWA3		GWA
GWA4		GWA
GWA5		GWA
GWA6		GWA
GWA7		GWA
GWA8		GWA
GWA9		GWA
GWA10		GWA
GWN1		GWN
GWN2		GWN
GWN3		GWN
GWN4		GWN
GWN5		GWN
GWU1		GWU
GWU2		GWU
GWU3		GWU
GWU4		GWU
GWU5		GWU
GWU6		GWU
GWU7		GWU
GWU8		GWU
GWU9		GWU

Wagons


Amount	Description	Class
7	Crew Van-SG	ADFY
15	Container Flat Wagon-BG	AFGF
26	Sleeper & Rail Flat Wagon-SG	AFKX
1	Flat Wagon-SG	AFTF
9	Sleeper & Rail Flat Wagon-SG	AFTY
1	Shunt Fender-SG	AGGY
4	Ballast Hopper-BG-50 tonne bogies	AHBF-BG
16	Ballast Hopper-SG-50 tonne bogies	AHBF-SG
25	Ballast Hopper-SG-70 tonne bogie	AHBY
10	Ballast Hopper-SG-50 tonne bogies	AHBF-SG


Partnership Investment Agreement


31	Grain Hopper-SG	AHGX
27	Grain Hopper-SG	AHHF
56	Iron Ore Hopper-NG	AHOF
59	Iron Ore Hopper-NG	AHPF
1	Marble Hopper-SG	AHTF
4	Bulk Steel Open-NG	AKHX-NG
14	Bulk Steel Open-SG	AKHX
4	Short Rail Flat Wagon-SG	AKRF
1	Louvre Van-SG	ALGY
1	Louvre Van-SG	ALHX
80	Container Flat Wagon-SG	AQCY
4	Fuel Flat Wagon-Heavy U/frame & ECP-SG	AQFY
2	Container Flat 2 pack-SG	AQKY
24	Container Flat Wagon-SG	AQPY
6	Fuel Flat Wagon-SG	AQQY
41	Container Flat Wagon-SG	AQDY
1	Shunt Fender-SG	AST
1	Fuel Tanker-SG	ATCL
2	Fuel Tanker-SG	ATDF
2	Water Tanker-SG	ATWF
2	Water Tanker-SG	ATWY
1	Crew Van-SG	AVDP
1	Flat Wagon-NG	AZFF
2	Ballast Plough-SG	AZPY
1	Ballast Plough-BG	AZPF
80	Grain Hopper-SG	AHAY
1	Crew Van-SG	ECA
52	Gypsum Hopper-NG	ENH
7	Gypsum Hopper-NG	ENHA
1	Shunt Fender-NG	ESF
1	Ballast Plough-NG	EZZF
4	Crew Van-SG	FDDY
66	Grain Hopper-NG	HAN
11	Grain Hopper-NG	HBN
39	Grain Hopper-NG	HCN
1	Shunt Fender-BG	RGC
1	Power Van-SG	PGB
7	Gypsum Hopper-NG	RSG
4	Container Flat Wagon-SG	WFDY
2	Bulk Steel Open-SG	RKBX
2	Bulk Steel Open-SG	RKHX
1	Open Wagon-SG	AOKX
3	Open Wagon-SG	AOLX
11	Open Wagon-SG	AOOX
2	Open Wagon-SG	AOOY
7	Open Wagon-SG	AOSX
2	Open Wagon-SG	AZOY
2	Open Wagon-SG	ROOX
52	Container Flat 5 pack-SG	FQAY
32	Container Flat 2 pack-SG	FQCY
22	Piggy-Back flat wagon	FPPY


Partnership Investment Agreement


22	Container Flat 2 pack well - SG	FQWY
1	Container Flat 1 pack well - SG	FQXY
18	Fuel Tanker-SG	PTMY

Other

Lifting Equipment Darwin & Alice Springs

Darwin Forklift Omega Reachstacker

Dry Creek Fire Management System

Darwin Forklift Reachstacker

Hino Truck SB82GN

IVECO Tipper Truck CB63VE

HINO Flatbed Truck SB51HM


Partnership Investment Agreement

Schedule 6

Restructuring Steps

1	CP Restructuring Steps


No.	Description of Restructuring Step	Evidence of completion

1.	• Freightliner Australia Pty Ltd paid a fully franked dividend of A$12m to shareholders (GWI Holdings Pty Ltd (A$10.962m) 91.4% / management 8.6%). • GWI Holdings Pty Ltd lent A$6.58M to Genesee & Wyoming Australia Pty Ltd to repay bank debt. • GWI Holdings Pty Ltd repaid intercompany payable of A$4.38M to GWI UK Acquisition Co.	N/A - completed

2.	GWIH2 incorporates a new wholly-owned Australian subsidiary, GWI Acquisitions Pty Ltd.	N/A - completed

3.	Transfer of the entire final pre-completion balance of the loan between GWI International BV and the GWA Partnership from GWI International BV to GWI Holding BV by way of a dividend distribution.	GWI International BV board resolution. Executed amendment of Loan Agreement between GWI International BV, GWI Holdings BV and the GWA Partnership.

4.	Transfer of GWIH2’s interest in GWI Holdings Pty Ltd and GWA (North) Pty Ltd to GWI Acquisitions Pty Ltd.	Board resolutions of GWI Holdings Pty Ltd, GWA (North) Pty Ltd, GWIH2 and GWI Acquisitions Pty Ltd. Executed share transfer forms. ASIC Form 484. Updated register of members GWI Holdings Pty Ltd and GWA (North) Pty Ltd.

5.	Issue shares in GWI Acquisitions Pty Ltd to GWIH2 as consideration for Step 4.	Board resolutions of GWIH2 and GWI Acquisitions Pty Ltd Executed share certificate ASIC Form 484. Updated register of members for GWI Acquisitions Pty Ltd.

6.	Transfer of GWI Holdings Pty Ltd’s 91.4% interest in Freightliner Australia Pty Ltd to GWI Acquisitions Pty Ltd at book value (creating an intercompany payable/receivable between GWI Acquisitions Pty Ltd and GWI Holdings Pty Ltd.)	Board resolutions of Freightliner Australia Pty Ltd, GWI Holdings Pty Ltd and GWI Acquisitions Pty Ltd. Executed Shareholder consents Executed share transfer form. ASIC Form 484.


Partnership Investment Agreement


No.	Description of Restructuring Step	Evidence of completion

		Updated register of members for Freightliner Australia Pty Ltd.

7.	Distribution of profits (fully franked for Australian tax purposes) by GWA Partnership to GWI Holding BV (99%) and GWI International BV (1%) of the amount equal to: • the final loan balance in step 5 of the Completion Funding Steps; less • $88,176,000.00; less • the final pre completion balance of the existing loan from GWI Holding BV to the GWA Partnership (refer Step 3 above) To facilitate the distribution of profits above, GWIH2 will declare a dividend of $60,000,000.00 to the GWA Partnership (through GWI International B.V. as General Partner).	Distribution statements prepared by General Partner. Minute of General Partner to recognise distribution in books of partnership. Dividend statement prepared by GWIH2 Board resolution of GWIH2.

8.	Assignment of GWI International BV’s GWA Partnership distribution receivable to GWI Holding BV.	Board resolutions of GWI International BV and GWI Holding BV.

9.	Amendment of the terms of the final pre-completion balance of the loan between GWI Holding BV and GWA Partnership to a Partner loan in the form set out in Schedule 10.	Board resolutions of GWI Holding BV and Minute of General Partner. Executed amendment of Loan Agreement between GWI Holdings BV and the GWA Partnership.

10.	Conversion of profit distributions owing to GWI Holding BV to a Partner loan from GWI Holding BV to GWA Partnership, in the form set out in Schedule 10. For clarity, the result of this step is that the loan balance from step 3 and the distributions in step 7 will be consolidated into a single Partner loan from GWI Holding BV to the GWA Partnership.	Board resolutions of GWI Holding BV and Minute of General Partner. Executed Loan Agreement between the GWA Partnership, GWI Holding BV and GWI International BV.

11.	Incorporation of a new wholly-owned new Australian resident company by GWI International BV ( NewGPCo ) with a single ordinary share.	Certificate of incorporation.

12.	NewGPCo resolves to acquire 100% of the shares in GWIH2.	Board Resolutions of NewGPCo and GWI International BV.

13.	GWI International BV transfers its 1% General Partner interest in the GWA Partnership to NewGPCo.	Board resolutions of GWI International BV and NewGPCo. Executed transfer form. Admission Certificate.


Partnership Investment Agreement


No.	Description of Restructuring Step	Evidence of completion

14.	Issue ordinary shares in NewGPCo to GWI International BV, as consideration for Step 13.	Board resolution of NewGPCo. Executed share certificate. ASIC Form 484. Updated register of members for NewGPCo.

15.	Transfer of 100% of the shares in GWIH2 from GWI International BV to NewGPCo.	Board resolutions of GWIH2, NewGPCo and GWI International BV. Executed share transfer form. ASIC Form 484. Updated register of members.

2	Completion Funding Steps


No.	Description of Funding Step	Documents required

1.	Capital contribution of A$4,053,810.00 by MIRA GP to the GWA Partnership.	Evidence of funds transfer Payment Directions Deed.

2.	Capital contribution of: • A$100,331,797.50 by MAIT LP; • A$200,663,595.00 by MAIF LP; and • A$100,331,797.50 by PGGM LP, to the GWA Partnership.	Evidence of funds transfer Payment Directions Deed.

3.	Loans of A$59,535,750.00, A$119,071,500.00 and A$59,535,750,00 to the GWA Partnership made by MAIT LP, MAIF LP and PGGM LP respectively.	Executed Partnership Loan Agreement between MAIT LP, MAIF LP and PGGM LP (respectively) and the GWA Partnership. Payment Directions Deed. Evidence of funds transfer

4.	A$690,000,000.00 in external bank debt drawn down by GWI Acquisitions Pty Ltd.	Draw down and payment notices

5.	Cash payment from GWI Holding BV to GWA Partnership of $88,176,000.00, as addition to partner loan. For clarity, the final loan balance between GWI Holding BV and the GWA Partnership will be $248,857,000.00 and will be on the terms of the Partnership Loan Agreement	Evidence of funds transfer Payment Directions Deed.

6.	Internal funds flows to facilitate and repay existing Genesee & Wyoming Australia Pty Ltd bank debt	Payment Directions Deed. Board resolutions for each


Partnership Investment Agreement



	A$250,000,000.00. (c) GWA Partnership contributes A$250,000,000.00 to GWIH2 in return for issue of shares; (d) GWIH2 contributes A$250,000,000.00 to GWI Acquisitions Pty Ltd in return for issue of shares; (e) GWI Acquisitions Pty Ltd contributes A$250,000,000.00 to GWI Holdings Pty Ltd in return for issue of shares; (f) GWI Holdings Pty Ltd contributes A$250,000,000.00 to Genesee & Wyoming Australia Pty Ltd in return for issue of shares; and (g) Genesee & Wyoming Australia Pty Ltd repays existing bank debt of A$250,000,000.00.	subscriber and issuer Executed share certificates ASIC Forms Updated registers of members Payment notice for repayment of loan. Evidence of funds transfer.

7.	Internal funds flows to facilitate acquisition of GRail by GWI Acquisitions Pty Ltd A$481,700,000.00. (h) GWA Partnership contributes A$481,700,000.00 to GWIH2 in return for issue of shares; and (i) GWIH2 contributes A$481,700,000.00 to GWI Acquisitions Pty Ltd in return for issue of shares	Payment Directions Deed Board resolutions for subscriber and issuer. ASIC Forms Executed share certificates Updated register of members.

8.	GWI Acquisitions Pty Ltd acquires 100% of the shares in GRail for purchase price of A$1,140,000,000.00.	Completion of SSA


Partnership Investment Agreement

Schedule 7

Contracts


		Material Contracts

1.		Goods and Services Supply Contract for Track Resurfacing between GWA (North) Pty Ltd (ABN 92 144 081 774) and Downer EDI Works Pty Ltd (ABN 66 008 709 608) dated 21 December 2015.

2.		Goods and Services Supply Contract for Maintenance between Genesee & Wyoming Australia Pty Ltd (ABN 17 079 444 296) and Broadspectrum (Australia) Pty Ltd (ABN 11 093 114 553) dated 1 April 2016.

3.		Goods and Services Supply Contract for Diesel Fuel between Genesee & Wyoming Australia Pty Ltd (ABN 17 079 444 296) and Caltex Australia Petroleum Pty Ltd (ABN 17 000 032 128) dated 5 August 2015.

4.		Goods and Services Supply Contract for Diesel Fuel between GWA (North) Pty Ltd (ABN 92 144 081 774) and Caltex Australia Petroleum Pty Ltd (ABN 17 000 032 128) dated 5 August 2015.

5.		Equipment Master Rental Agreement between CFCL Australia Pty Ltd (ABN 61 083 217 814) and GWA (North) Pty Ltd (ABN 92 144 081 774) dated 19 June 2007.

6.		Rolling Stock Maintenance Agreement between Freightliner Australia Pty Ltd (ABN 51 122 522 123) and Downer EDI Rail Pty Ltd (ABN 92 000 002 031) dated on or around 1 July 2015, as amended.

7.		Diesel Supply Agreement between Maxi-Tankers Pty Ltd (ABN 22 117 406 934) and Freightliner Australia Pty Ltd (ABN 51 122 522 123) dated 8 July 2013, as extended.

8.		Equipment Lease Agreement between CIMC Rolling Stock Australia Pty Ltd (ABN 14 083 334 696) and Freightliner Australia Pty Ltd (ABN 51 122 522 123) dated 26 February 2014.

9.		Master Lease Agreement between CFCL Australia Pty Ltd (ABN 61 083 217 814) and Freightliner Australia Pty Ltd (ABN 51 122 522 123) dated 9 March 2009.

10.		Rental Agreement between CFCL Australia Pty Ltd (ABN 61 083 217 814) and Freightliner Australia Pty Ltd (ABN 51 122 522 123) dated 16 July 2013.

11.		Rental Agreement between CFCL Australia Pty Ltd (ABN 61 083 217 814) and Freightliner Australia Pty Ltd (ABN 51 122 522 123) dated 21 September 2012, as amended.

12.		Wagon Manufacture and Sale Contract between CIMC Rolling Stock Australia Pty Ltd (ABN 14 083 334 696) and Freightliner Australia Pty Ltd (ABN 51 122 522 123) dated 2 June 2014.


Partnership Investment Agreement



13.		Bulk Fuel Supply Agreement between Glencore Australia Oil Pty Limited and Freightliner Australia Coal Haulage Pty Ltd (ABN 46 137 483 713) dated 23 September 2013

14.		Payment Direction Deed under the Bulk Fuel Supply Agreement between Glencore Australia Oil Pty Limited and Freightliner Australia Coal Haulage Pty Ltd (ABN 46 137 483 713) dated 30 September 2013.

15.		Oil Supply Agreement between Fuchs Lubricants (Australasia) Pty Ltd (ABN 88 005 681 916) and Freightliner Australia Coal Haulage Pty Ltd (ABN 46 137 483 713) dated 13 December 2013.

16.		Terminals Operations Agreement between Linfox Australia Pty Ltd (ABN 47 004 718 647) and GWA (North) Pty Ltd (ABN 92 144 081 774), dated 24 May 2012.

17.		Goods and Services Supply Contract for fuelling services between Sunshine Refuellers Pty Ltd (ABN 65 600 542 514) and GWA (North) Australia Pty Ltd (ABN 92 144 081 774) dated 10 February 2015.

18.		Adelaide Freight Terminal Services Agreement between Asciano Services Pty Ltd (ABN 48 052 134 362) and GWA (North) Pty Ltd (ABN 92 144 081 774) dated on or around 19 December 2014.

19.		Contract for maintenance of locomotives and wagons (and related services) between Freightliner Australia Coal Haulage Pty Ltd (ACN 137 483 713), UGL Rail Services Limited (ACN 000 003 136) and Glencore Rail (NSW) Pty Limited (ACN 079 546 777) dated 21 July 2009.

20.		Rolling Stock Lease between Glencore Rail (NSW) Pty Ltd (ACN 079 546 777) and Freightliner Australia Coal Haulage Pty Limited dated 21 July 2009, as amended.

		Customer contracts

21.		Rail Haulage Agreement between OneSteel Manufacturing Pty Limited (ACN 004 651 325), Genesee & Wyoming Australia Pty Ltd (ABN 17 079 444 296) and Arrium Limited (ACN 004 410 833) dated 17 July 2012.

22.		Rail Haulage Agreement between Southern Iron Pty Ltd (ACN 119 611 068), Genesee & Wyoming Australia Pty Ltd (ABN 17 079 444 296) and Arrium Limited (ACN 004 410 833) dated 17 July 2012, as amended.

23.		Rail Haulage Agreement between Gypsum Resources Australia Pty Ltd (ACN 008 021 449) and Genesee & Wyoming Australia Pty Ltd (ABN 17 079 444 296) dated 19 August 2014.

24.		Concentrate Transport Contract between Oz Minerals Prominent Hill Operations Pty Ltd (ACN 091 546 691), Giacci N.T. Pty Ltd (ACN 126 038 579) and GWA (North) Pty Limited (ACN 144 081 774), dated 13 June 2007, as amended.

25.		Grain Rail Haulage Agreement (Eyre Peninsula) between Viterra Operations Ltd (ACN 007


Partnership Investment Agreement



		556 256) and Genesee & Wyoming Australia Pty Ltd (ACN 079 444 296) dated 31 March 2015.

26.		Grain Rail Haulage Agreement (Mainland) between Viterra Operations Ltd (ACN 007 556 256) and Genesee & Wyoming Australia Pty Ltd (ACN 079 444 296) dated 31 March 2015.

27.		Rail Haulage Agreement between CU-River Mining Australia Pty Ltd (ABN 48 600 429 443) and Genesee & Wyoming Australia Pty Ltd (ABN 17 079 444 296) dated 16 December 2015.

28.		Standing Offer for Hook and Pull Services Agreement between Australian Rail Track Corporation Ltd (ABN: 75 081 455 754) and Freightliner Australia Pty Ltd (ABN: 51 122 522 123) dated 16 June 2016.

29.		Rail Haulage Services Agreement between Freightliner Australia Pty Ltd (ACN 122 522 123) and Glencore Grain Pty Ltd (ACN 106 378 885), dated 22 April 2014, as amended.

30.		Rail Haulage Services Agreement (Wee Waa Facility) between Freightliner Australia Pty Ltd (ACN 122 522 123) and Namoi Cotton Alliance (unincorporated joint venture of Louis Dreyfus Commodities Melbourne JVP Pty Ltd (ACN 161 877 247) and Namcott Marketing Pty Ltd (ACN 161 757 366)) dated 1 July 2009, as amended.

31.		Plant Hire Contract between Swietelsky CPB Rail Joint Venture (ABN 57 271 911 843) and Freightliner Australia Pty Ltd (ABN 51 122 522 123) dated 6 April 2016.

32.		Framework Agreement between Glencore Rail (NSW) Pty Limited (ACN 079 546 777), Freightliner Australia Coal Haulage Pty Ltd (ACN 137 483 713), FLA Coal Services Pty Ltd (ACN 137 483 240), Freightliner Australia Pty Limited (ACN 122 522 123), Freightliner Group Limited, Glencore Coal Investments Australia Pty Ltd (ACN 082 271 912) dated 21 July 2009.

33.		Concentrate Transport Contract between Minex (SA) Pty Ltd (ACN 091 546 691) Giacci N.T. Pty Ltd (ACN 126 038 579) and Freight Link Pty Ltd (ACN 093 011 628) dated 13 June 2007. (If this contract is terminated and a new contract is entered into with Oz Minerals Prominent Hill Operations Pty Ltd the fact that this contract is not on foot will not be a breach of the GWI warranty in Schedule 2 section 3.5(ii))

34.		Joint Venture Agreement for the True North Unincorporated Joint Venture between Freight Link Pty Ltd (ACN 093 011 628), Biacci N.T Pty Ltd (ACN 126 038 579), Mike Batchelar and Giacci Holdings Pty Ltd (ACN 008 708 370) dated 11 August 2008. (If this contract is terminated and a new contract is entered into with Oz Minerals Prominent Hill Operations Pty Ltd the fact that this contract is not on foot will not be a breach of the GWI warranty in Schedule 2 section 3.5(ii))

		Access agreements and related contracts

35.		Track Access Agreement between GWA (North) Pty Ltd (ABN 92 144 81 774) and Genesee & Wyoming Australia Pty Ltd (ABN 17 079 444 296) dated 20 June 2016.


Partnership Investment Agreement



36.		Access agreement between Genesee & Wyoming Australia Pty Ltd (ABN 17 079 444 296), Pacific National (NSW) Pty Ltd (ABN 83 099 150 688) and Asciano Services Pty Ltd (ABN 48 052 134 362), dated 30 June 2010, as amended.

37.		Track Access Agreement between GWA (North) Pty Ltd (ABN 92 144 81 774) and Great Southern Railway Limited (ABN 59 079 476 949) dated 23 January 2004, as amended.

38.		Port Adelaide Rail Access and Train Operation Services Agreement between Genesee & Wyoming Australia Pty Ltd (ABN 17 079 444 296) and Bowmans Intermodal Pty Ltd (ABN 87 105 070 451), dated 31 August 2015.

39.		Rail Access Agreement between Genesee & Wyoming Australia Pty Ltd (ABN 17 079 444 296) and Bowmans Intermodal Pty Ltd (ABN 87 105 070 451), dated 31 August 2015.

40.		Track Access Agreement between Australian Rail Track Corporation Limited (ABN 75 081 455 754) and Genesee & Wyoming Australia Pty Ltd (ABN 17 079 444 296), undated, as extended.

41.		Licence Agreement for Exclusive Management between Australian Rail Track Corporation Limited (ABN 75 081 455 754) and Genesee & Wyoming Australia Pty Ltd (ABN 17 079 444 296), dated 10 November 2000.

42.		Rail Access Agreement between Rail Corporation New South Wales (ABN 59 325 778 353) and Genesee & Wyoming Australia Pty Ltd (ABN 17 079 444 296) dated 27 June 2013, as extended.

43.		Goods Sidings Licence Agreement between Australian Rail Track Corporation Limited (ABN 75 081 455 754) and Genesee & Wyoming Australia Pty Ltd (ABN 17 079 444 296), dated 1 June 2004.

44.		Rail Access Agreement between Rail Corporation New South Wales (ABN 59 325 778 353) and Freightliner Australia Pty Ltd (ABN 51 122 522 123) dated 28 June 2013, as amended and extended.

45.		Coal Operator Sub-Agreement for Services in the Hunter Valley between Australian Rail Track Corporation Limited (ABN 75 081 455 754) and Freightliner Australia Coal Haulage Pty Ltd (ABN 46 137 483 713) and endorsed by Glencore Coal (NSW) Pty Ltd (ABN 18 097 523 058), dated 1 February 2012.

46.		Siding Agreement (Muswellbrook) (ARTC Network (Inside the Rail Corridor)) between Australian Rail Track Corporation Limited (ABN 75 081 455 754) and Freightliner Australia Coal Haulage Pty Ltd dated 28 October 2010, as extended.

47.		Siding Agreement (Bullock Island) (ARTC Network (Inside the Rail Corridor)) between Australian Rail Track Corporation Limited (ABN 75 081 455 754) and Freightliner Australia Coal Haulage Pty Ltd dated 18 September 2012, as extended.


Partnership Investment Agreement



48.		Rail Access Agreement between Transport for NSW (ABN 18 804 239 602) and Freightliner Australia Pty Ltd (ABN 51 122 522 123) dated 5 February 2015.

49.		Track Access Agreement between Genesee & Wyoming Australia Pty Ltd (ABN 17 079 444 296) and Transport for NSW (ABN 18 804 239 602), dated 23 May 2011, as extended.

50.		Track Access Agreement between Australian Rail Track Corporation Limited (ABN 75 081 455 754) and Freightliner Australia Pty Ltd (ABN 51 122 522 123), undated, as extended.

51.		Rail Management Agreement between Flinders Ports Pty Limited (ACN 097 377 172) and Genesee & Wyoming Australia Pty Ltd (ACN 079 444 296), dated 12 January 2012.

52.		Port Adelaide Bulk Precinct Rail Access Agreement between Flinders Ports Pty Limited (ACN 097 377 172) and Genesee & Wyoming Australia Pty Ltd (ACN 079 444 296), dated 11 January 2012, as amended.

53.		AustralAsia Railway Project Novated Concession Deed between The AustralAsia Railway Corporation (ABN 43 839 400 411), The Northern Territory of Australia, The Crown in the right of the State of South Australia and GWA (North) Pty Ltd (ABN 92 144 081 774) dated 1 December 2010.

54.		ARC Corporation Deed of Charge between GWA (North) Pty Ltd (ABN 92 144 081 774) and The AustralAsia Railway Corporation (ABN 43 839 400 411), dated 19 November 2010.

55.		ARC Corporation Loan Agreement between GWA North Pty Ltd (ACN 144 081 774) and The AustralAsia Railway Corporation (ABN 43 839 400 411), dated 1 December 2010.

56.		ARC Guarantee and Indemnity between Genesee & Wyoming Australia Pty Ltd (ACN 079 444 296) and The AustralAsia Railway Corporation (ABN 43 839 400 411), dated 19 November 2010.

57.		Operating Agreement between GWA (North) Pty Limited (ACN 144 081 774) and Genesee & Wyoming Australia Pty Ltd (ACN 079 444 296), dated 19 November 2010.

58.		Novation Deed (Operating Agreement) between GWA (North) Pty Ltd (ACN 144 081 774), Genesee & Wyoming Australia Pty Limited (ACN 079 444 296) and the AustralAsia Railway Corporation (ABN 43 839 400 411) dated 19 November 2010.

59.		AustralAsia Railway Project Debt Financiers’ Tripartite Deed (2010) between The AustralAsia Railway Corporation, GWA (North) Pty Limited (ACN 144 081 774), Genesee & Wyoming Australia Pty Ltd (ABN 17 079 444 296), Genesee & Wyoming Australia Pty Ltd (ABN 17 079 444 296) as varied including under the Deed of Accession (Debt Financiers Tripartite Deed) executed by Viper Line Australia Pty Ltd dated 27 May 2014.


Partnership Investment Agreement



60.		Sale Consent Deed between GWA (North) Pty Ltd (ACN 144 081 774), the Northern Territory of Australia, the Crown in the right State of South Australia, the AustralAsia Railway Corporation, Asia Pacific Transport Pty Limited (Receivers and Managers Appointed) (Subject to Deed of Company Arrangement) (ACN 082 501 942) dated 22 November 2010.

Leases

1.		SA Ground Lease (2007) between Minister for Transport and Genesee & Wyoming Australia Pty Ltd (ACN 079 444 296) dated 3 August 2007

2.		SA Ground Lease (2011) between Minister for Transport and Infrastructure and Genesee & Wyoming Australia Pty Ltd (ACN 79 444 296) dated 24 November 2011.

3.		Darwin Port Terminal Lease between Darwin Port Corporation and GWA (North) Pty Limited (ABN 92 114 081 774) of the Land of Portion 5986, Plan 52000/206 and all improvements on that land including the Port Terminal, the Rail Causeway and the Loading Area, registered on 12 April 2004, registration number 576166, as amended.

4.		Development Agreement for Lease for Darwin Port Terminal between Darwin Port Corporation, GWA (North) Pty Ltd (ABN 92 144 081 774) and The Northern Territory of Australia, as amended.

5.		Keswick Office Lease – sub-lease from Coffey Corporate Pty Ltd (ACN 001 727 171) to Genesee & Wyoming Australia Pty Ltd (ACN 079 444 296) of that portion of the land in Certificate of Title Register Book Volume 6066 Folio 618 designated as “Level 3 South”, undated.

6.		Pymble Office Lease from Overland Consolidated Pty Limited (ACN 059642 867) to Freightliner Australia Pty Ltd (ACN 122 522 123) of Suite 1, Ground Floor, Building 1, Pymble Corporate Centre, 20 Bridge Street, Pymble NSW, registered number AE208702 dated 22 August 2008, as amended.

7.		Sandgate Depot Lease from Peter Di Prinzio and Rita Di Prinzio to Freightliner Australia Coal Haulage Pty Ltd (ABN 46 137 483 713) of Lot 26 in Deposited Plan 37524 (Sandgate Depot Lease), registered number AJ478616, undated, as extended.

8.		Tarcoola to Darwin Rail Corridor - Existing Corridor – SA – Sub-lease between AustralAsia Railway Corporation (ABN 43 839 400 411) and GWA (North) Pty Limited (ABN 92 114 081 774) registered number 9084341, dated 20 April 2001. (Tarcoola to Darwin Rail Corridor Leases – Existing Corridor – SA).

9.		Tarcoola to Darwin Rail Corridor Leases - Existing Corridor – NT – Sub-lease between AustralAsia Railway Corporation (ABN 43 839 400 411) and GWA (North) Pty Limited (ABN 92 114 081 774) registered number 465395, dated 20 April 2001.

10.		Tarcoola to Darwin Rail Corridor Leases - New Corridor – NT Crown Land – Sub-


Partnership Investment Agreement



		lease between AustralAsia Railway Corporation (ABN 43 839 400 411) and GWA (North) Pty Limited (ABN 92 114 081 774) registered number 465439, dated 20 April 2001.

11.		13 Tarcoola to Darwin Rail Corridor Leases – New Corridor – NT Aboriginal Land – Sub-leases between AustralAsia Railway Corporation (ABN 43 839 400 411) and GWA (North Pty Ltd) (ABN 92 114 081 774).

12.		Tarcoola to Darwin Rail Corridor – Darwin Port Terminal Additional Land – sub-lease between AustralAsia Railway Corporation (ABN 43 839 400 411) and GWA (North) Pty Ltd (ABN 92 144 081 774) and Genesee & Wyoming Australia (ACN 079 444 296) registered on 27 October 2010.

13.		Whyalla Lease between OneSteel Manufacturing Pty Ltd (ABN 42 005 651 425) and Genesee & Wyoming Australia Pty Ltd (ABN 19 079 444 296) of the land in Certificate of Title Volume 5835 Folio 294, dated 3 October 2012.

14.		Deed of Sublease of part of the East Arm Wharf of the Darwin Port Terminal, Release and Indemnity between Qube Ports Pty Ltd (Qube) (as sublessee), GWA (North) Pty Ltd (ABN 92 144 081 774) and Genesee & Wyoming Australia (ACN 079 444 296), undated.

15.		Deed of Consent to sublease of part of the East Arm Wharf of the Darwin Port Terminal between Darwin Port Corporation, GWA (North) Pty Ltd (ABN 92 144 081 774) and Patrick Stevedoring Pty Ltd, undated.

Amendments and variations

1.		Any amendment, extension or variations of any of the other agreements referred to in this schedule and disclosed in the Data Room.

Rail Accreditations

Freightliner Australia Pty Ltd accreditation as a Rolling Stock Operator under the Rail Safety National Law, commenced 20 January 2013;

Freightliner Australia Pty Ltd accreditation as a Rolling Stock Operator under Part 5 of the Transport (Rail Safety) Act 2010 (Qld), commenced 14 May 2007 and re-issued on 18 November 2013;

Genesee & Wyoming Australia Pty Ltd accreditation as a Rolling Stock Operator and Rail Infrastructure Manager under the Rail Safety National Law, commenced 20 January 2013; and

Genesee & Wyoming Australia Pty Ltd accreditation as a Rolling Stock Operator under Part 5 of the Transport (Rail Safety) Act 2010 (Qld), commenced 25 November 2002 and re-issued on 20 December 2013.


Partnership Investment Agreement

Schedule 8

Accounting Principles

The Completion Working Capital Statement will be drawn up in accordance with, in the following order of precedence:

the accounting principles, policies and procedures as set out in paragraph 2 below;

the accounting principles, policies and procedures adopted in the 2016 Accounts; and

the Accounting Standards as at the Completion Date.

Accounting principles, policies and procedures

The Completion Working Capital Statement will be prepared in the format required by Schedule 11, using the information extracted from the accounting records of the GWA Group as used in the preparation of the Reference Working Capital Statement.

The Completion Working Capital Statement will be drawn up as at the Completion Date. Events taking place or information arising after the Completion Date will not be incorporated in the Completion Working Capital Statement, except to the extent that such events or information would otherwise result in an adjusting event in accordance with AASB 110 Events after the Reporting Period.

To the extent that any item may ordinarily form part of or comprise working capital but is not included within those line items set out in this Schedule, such item will not be included within the Completion Working Capital Statement.


Partnership Investment Agreement

Schedule 9

Data Room Index


Partnership Investment Agreement

Schedule 10

Partnership Loan Term Sheet


PARTNER LOAN AGREEMENT TERM SHEET

Borrower:	G&W Australia Holdings LP.

Lenders:	GWI Holding B.V., MAIT LP, MAIF LP[ and PGGM LP].

Lender Share:	In relation to a Lender, the portion, expressed as a percentage, which that Lender’s limited partner interests in the Borrower bears to the total limited partner interests in the Borrower as at the date of the loan agreement.

Facility:	A$[*] unsecured loan facility. The Facility will be subordinated to external debt.

	Each Lender will contribute a portion of the Facility equal to its Lender Share (with GWI Holding B.V.’s portion having already been contributed by way of existing loan amounts).

Purpose:	The proceeds of the Facility will be used to capitalise GWI Acquisitions Pty Ltd for the purposes of completing the GRail Transaction.

Maturity Date:	The date that is 9 years and 11 months after the date the Loan is advanced.

Repayment:	1.	In full on the Maturity Date;

	2.	voluntarily (without penalty or premium) on 5 Business Days’ prior written notice; and

	3.	on demand if:

		(a)	an Event of Default is continuing; or

		(b)	it becomes illegal for a Lender to perform its obligations under the Loan Agreement.

Interest on Loans:	[] per cent. per annum on the principal outstanding under the Facility. Interest is calculated on the basis of a 365 day year. Accrued interest is payable semi-annually in arrears on the last Business Day of each financial half year ( Interest Payment Date* ) from cash of the Borrower available for distribution as permitted under the Borrower’s external debt arrangements and the terms of the Intercompany Loan.

	Accrued interest which is not paid will be capitalised and added to the principal outstanding under the Facility on each Interest Payment Date (i.e. unpaid interest is compounding and will itself bear interest).


Partnership Investment Agreement


				Default interest will be payable on any amount of principal unpaid at maturity or following acceleration of the Facility and will accrue until the eventual date of payment. Default interest will accrue at 2% plus the amount of interest otherwise payable on the overdue amount had that amount been a loan under the facility.

Proportionate payments:				All payments under the Loan Agreement must be paid to the Lenders pari passu and rateably in accordance with their respective Lender Shares. Each Lender shall account to the other Lender to the extent it receives or recovers more than its Lender Share of any payment from the Borrower in respect of the Facility.

Representations:				The Borrower will make representations as to status, binding obligations, non conflict with other obligations, power and authority and validity and admissibility in evidence, and standard limited partnership representations.

Events of Default:				The Loan Agreement will include events of default for non-payment, insolvency, insolvency proceedings, creditors’ process and repudiation/vitiation of the Loan Agreement.

Unilateral action by Lender:				No Lender may separately enforce or exercise any of its rights in connection with the Facility or create a security interest over any of its rights in or to the Facility without the prior written consent of the other Lender (not to be unreasonably withheld).

Assignment:				The Borrower may not assign or transfer any of its rights or obligations under the Loan Agreement without the prior written consent of the Lenders. A Lender may assign or transfer all or any of its rights or obligations under the Loan Agreement simultaneously with (and in the same proportion as) a transfer of its partnership interest in the Borrower or otherwise with the prior written consent of the other Lender.

Withholding tax:				If interest withholding tax applies to any payment or accrual of interest, then that withholding tax shall be deducted from the amount of interest otherwise payable or capitalised to the facility.

Costs and expenses:				The Borrower will be responsible for the costs of the Lenders for the preparation of the Facility documentation and amendments and enforcement.

Governing Law and Jurisdiction:				The laws and courts of New South Wales.


Partnership Investment Agreement

Schedule 11

Reference Working Capital Statement


AUD million	Reference Working Capital			Working Capital at Completion
Cash and cash equivalents A		0			XXX

Accounts receivable		32.6			XXX
Materials and supplies		24.3			XXX
Prepaid expenses and other		1.0			XXX
Accounts payable		(19.2	)		XXX
Accrued expenses		(17.5	)		XXX

Total Working Capital B		21.3			XXX/XXX

Capex receivables		0			XXX
Capex creditors		0			XXX
Deferred income		0			XXX
Downer EDI settlement		0			XXX
Incident/derailment provision		0			XXX
Income tax payable / receivable		0			XXX
Advance lease billings		0			XXX
Bonus accrual		0			XXX

Total debt-like items C		0			XXX/XXX


Total A+B+C		21.3			XXX/XXX

All amounts presented in the table are rounded to the nearest $0.1 million, which may result in some discrepancies between the sum of components and the totals outlined within the table.

Bid Costs determined in accordance with the Bid Process Deed are excluded from the Reference Working Capital calculation and will either be paid at or before Completion or will have cash reserved against them excluded from the Completion Working Capital calculation.

The Completion Working Capital figures will be calculated immediately after Completion.


Partnership Investment Agreement

Part B. Detailed Completion Accounts

The following schedule reflects accounts to be included in the Completion Working Capital calculation depicted in Part A


Account	GL code	GL description
Cash and cash equivalents	9600-000-000-1005-000	Cash - Operating Account
	9650-000-000-1005-000	Cash - Operating Account
	9650-000-000-1030-000	Cash - Special Deposits
	9652-000-000-1005-000	Cash - Operating Account
	9652-000-000-1030-000	Cash - Special Deposits
	9600-000-000-1000-000	Cash - Petty Cash Account
	9612-000-000-1000-000	Cash - ANZ
Accounts receivable	9612-000-000-1110-000	Accounts Receivable - Misc.
	9600-000-000-1110-000	Accounts Receivable - Misc.
	9600-000-000-1106-000	Accounts Receivable - Misc.
	9612-000-000-1106-000	Accounts Receivable - Misc.
	9600-000-000-1100-000	Accounts Receivable - Traffic
	9621-000-000-1100-000	Accounts Receivable - Customer
	9621-000-000-1106-000	Accounts Receivable - Misc.
	9650-000-000-1100-000	Accounts Receivable - Customer
	9650-000-000-1106-000	Accounts Receivable - Misc.
	9652-000-000-1100-000	Accounts Receivable - Customer
	9652-000-000-1106-000	Accounts Receivable - Misc.
	9612-000-000-1101-000	Unbilled AR
	9600-000-000-1101-000	Unbilled AR
	9612-000-000-1145-000	Receivable Allowance Account
	9600-000-000-1145-000	Receivable Allowance Account
	9650-000-000-1145-000	Receivable Allowance Account
	9612-000-000-1116-000	Rebillable projects
	9600-000-000-1116-999	Rebillable Projects
	9600-000-000-1116-100	Rebillable Projects - Electricity
	9600-000-000-1116-903	Rebillable - Souther Iron
	9600-000-000-1116-000	Rebillable projects
	9600-000-000-1116-001	Rebillable Projects - Freightliner
	9612-000-000-1116-997	Rebillable - Aust Beef
	9600-000-000-1116-904	Rebillable - Infrastructure
	9600-000-000-1116-855	Recoverable - Contract
	9612-000-000-1120-000	Off road diesel fuel rebate credits
	9600-000-000-1120-000	Off road diesel fuel rebate credits
	9650-000-000-1120-000	Off road diesel fuel rebate credits
	9652-000-000-1120-000	Off road diesel fuel rebate credits
	9600-000-000-1105-000	Advances
	9600-000-000-1111-000	Employee Receivables
	9600-000-000-1106-100	Accounts Receivable - Misc.(invoiced)
Materials and supplies	9600-000-000-1201-001	Fuel inventory - dry creek
	9600-000-000-1201-002	Fuel inventory - thevenard
	9600-000-000-1201-003	Fuel inventory - pt lincoln
	9612-000-000-1201-005	Fuel inventory - manguri
	9612-000-000-1201-004	Fuel inventory - darwin
	9600-000-000-1201-000	Fuel inventory dry creek
	9600-000-000-1203-000	Fuel inventory thevenard
	9600-000-000-1204-000	Fuel inventory pt lincoln
	9612-000-000-1205-000	Inventory fuel darwin
	9612-000-000-1206-000	Inventory fuel manguri
	9600-000-000-1200-001	Materials - wip - wsg
	9600-000-000-1200-006	Materials - wip - mpc
	9600-000-000-1200-003	Materials - wip - wng
	9600-000-000-1200-004	Materials - wip - ptl
	9612-000-000-1200-956	Inventory material ~rollingstock - non-contract
	9600-000-000-1200-000	Inventory


Partnership Investment Agreement


	9612-000-000-1200-000	Inventory
	9600-000-000-1200-002	Inventory provision
	9612-000-000-1201-006	Fuel Inventory
Prepaid expenses and	9612-000-000-1300-000	Prepaid l & p insurance
other	9600-000-000-1300-000	Prepaid l & p insurance
	9612-000-000-1310-000	Prepaid miscellaneous
	9600-000-000-1310-000	Prepaid miscellaneous
	9650-000-000-1310-000	Prepaid miscellaneous
	9652-000-000-1310-000	Prepaid miscellaneous
	9600-000-000-1307-000	Prepaid other
	9600-000-000-1400-000	Other current assets
	9600-000-000-1309-000	Suspense
	9609-000-000-1309-000	Suspense
	9612-000-000-1309-000	Suspense
	9650-303-050-1309-625	Wip clearing
	9650-181-070-1309-625	Wip clearing
	9652-305-050-1309-625	Wip clearing
Accounts payable	9600-000-000-2005-000	Accounts payable - accrued
	9609-000-000-2005-000	Accounts payable - accrued
	9612-000-000-2005-000	Accounts payable - accrued
	9621-000-000-2005-000	Accounts payable - accrued
	9650-000-000-2005-000	Accounts payable - accrued
	9652-000-000-2005-000	Accounts payable - accrued
	9612-000-000-2000-000	Accounts payable - trade
	9600-000-000-2000-000	Accounts payable - trade
	9621-000-000-2000-000	Accounts payable - trade
	9650-000-000-2000-000	Accounts payable - trade
	9652-000-000-2000-000	Accounts payable - trade
	9612-000-000-2005-981	Accounts payable - accrued - operations
	9612-000-000-2005-982	Accounts payable - accrued - rollingstock
	9612-000-000-2005-983	Accounts payable - accrued - track
	9600-000-000-2005-984	maintenance
	9600-000-000-2001-000	Accounts payable - accrued credit card
	9612-000-000-2001-000	clearing
	9612-000-000-2002-000	Accounts payable - unprocessed
	9612-000-000-2003-000	Accounts payable - unprocessed
		Due to pn
		Pn claim
Accrued expenses	9621-000-000-2366-000	Gst recoverable - purchases
	9652-000-000-2366-000	Gst recoverable - purchases
	9652-000-000-2365-000	Gst payables - sales
	9600-000-000-2365-000	Gst payable - sales
	9612-000-000-2365-000	Gst payable - sales
	9612-000-000-2367-000	Gst - net
	9600-000-000-2367-000	Gst - net
	9650-000-000-2366-000	Gst recoverable - purchases
	9612-000-000-2366-000	Gst recoverable - purchases
	9600-000-000-2366-000	Gst recoverable - purchases
	9612-000-000-2367-900	Gst - withholding tax payable
	9608-000-000-2365-000	Gst payable – sales
	9650-000-000-2370-000	Accrued other taxes
	9650-000-000-2365-000	Accrued sales tax
	9621-000-000-2365-000	Accrued sales tax
	9621-000-000-2155-000	Accrued sales/gst tax
	9652-000-000-2155-000	Accrued sales/gst tax
	9650-000-000-2155-000	Accrued sales/gst tax
	9600-000-000-2370-000	Provision for payroll tax
	9652-000-000-2370-000	Accrued other taxes
	9652-000-000-2376-000	Provision for lsl


Partnership Investment Agreement


	9650-000-000-2376-000	Provision for lsl
	9600-000-000-2376-000	Provision for lsl
	9600-000-000-2375-000	Provision for al
	9652-000-000-2327-000	Accrued 401k
	9650-000-000-2327-000	Accrued 401k
	9652-000-000-2359-000	Accrued gross payroll
	9650-000-000-2359-000	Accrued gross payroll
	9652-000-000-2375-000	Accrued vacation
	9650-000-000-2375-000	Accrued vacation
	9652-000-000-2377-000	Worker’s compensation reserve
	9650-000-000-2377-000	Worker’s compensation reserve
	9600-000-000-2377-000	Provision for workers compensation
	9600-000-000-2375-001	Provision for sick leave
	9600-000-000-2359-000	Accrued gross payroll
	9600-000-000-2327-000	Superannuation payable
	9600-000-000-2359-002	Payroll clearing account
	9600-000-000-2300-000	Payroll clearing account
	9652-000-000-2300-000	Accrued expenses
	9650-000-000-2300-000	Accrued expenses
	9650-000-000-2301-000	PAYG Payable
	9652-000-000-2301-000	PAYG Payable

Capex receivables	9612-000-000-1101-412	Unbilled AR - Oz Minerals
	9612-000-000-1101-413	Unbilled AR - TCIR 12979 Union Reef
	9612-000-000-1101-414	Unbilled AR - Kakadu Derailment
	9600-000-000-1116-905	Rebillable - SI Derail Why 271013
	9612-000-000-1101-405	TCIR12725
	9612-000-000-1101-406	Unbilled AR - TCIR10322 ~ Edith River
	9612-000-000-1106-405	Bridge
	9612-000-000-1106-406	Unbilled AR - Muckaty derailment Jun12
	9612-000-000-1106-412	Accounts Receivable - TCIR10322 Edith
	9612-000-000-1106-413	River
	9612-000-000-1106-414	Accounts Receivable - Muckaty Derailment
	9600-000-000-1101-409	Ju
	9600-000-000-1101-410	Accounts Receivable - Oz Minerals
	9600-000-000-1106-409	Accounts Receivable - TCIR12979 Union
	9612-000-000-1106-415	Reef
	9612-000-000-1106-416	Accounts Receivable - Kakadu Derailment
		TCIR 11421 Whyalla Narrow Gauge
		Derailment
		SRI Derailment Spencer Junction 17 Feb
		TCIR11713
		TCIR 11421 Whyalla Narrow Guage
		Derailment
		6DA2 Marryat Derailment
		6DA2 Marla Derailment
Capex creditors - Accrued capex (included in other accruals)	n/a – identified manually
Capex creditors - Accrued	9600-000-000-2006-000	Accounts payable - accrued capx
capex (separate accounts	9612-000-000-2006-000	Accounts payable - accrued capx
in TB)
Downer EDI settlement	9600-000-000-2005-001	Accounts payable - downer edi settlement
Deferred income	9612-000-000-2216-000	Current deferred income
	9600-000-000-2216-100	Current deferred income - southern iron
	9600-000-000-2216-000	Current deferred income
Incident/derailment	9612-000-000-2015-412	Incident provision - oz minerals
provision	9600-000-000-2015-411	Incident provision - wingfield fires


Partnership Investment Agreement


	9612-000-000-2015-000	Incident provision
	9600-000-000-2015-000	Incident provision
	9600-000-000-2015-100	Minor incidents
	9612-000-000-2015-100	Minor incidents
	9600-000-000-2010-100	Minor derailments
	9612-000-000-2010-100	Minor derailments
	9612-000-000-2010-000	Derailment provision
	9600-000-000-2010-000	Derailment provision
	9600-000-000-2010-409	Tcir 11421 whyalla narrow gauge derailment
	9600-000-000-2015-407	Tcir10091 collision dry creek nth sbr/grain
		train
Income tax payable /	9600-000-000-1401-000	Fit prepaid
receivable	9616-000-000-1401-000	FIT Prepaid
	9650-000-000-2379-000	Withholding tax payable
	9652-000-000-2200-000	Current fit payable
	9600-000-000-2200-000	Current fit payable
	9609-000-000-2200-000	Current fit payable
	9650-000-000-2200-000	Current fit payable
	9600-000-000-2304-000	Accrued fbt/fit
	9616-000-000-2379-000	Withholding tax payable
	9616-000-000-2200-000	Current FIT Payable
Advance lease billings	9600-000-000-2250-000	Advance lease billings
Bonus accrual	9600-000-000-2322-000	Accrued bonus


Partnership Investment Agreement

Schedule 12

Services Agreement

Genesee & Wyoming Railroad Services, Inc

G&W Australia Holdings LP

Services Agreement

Deutsche Bank Place

Corner Hunter and Phillip Streets

Sydney NSW 2000 Australia

T +61 2 9230 4000

F +61 2 9230 5333

www.allens.com.au

Allens is an independent partnership operating in alliance with Linklaters LLP.


Services Agreement


(A)	Contents

1	Definitions and Interpretation		1

	1.1	Definitions	1

	1.2	Interpretation	3

	1.3	Method of payment	4

2	Term		4

3	Provision of Services		4

4	Requests for Services		4

5	Payment for Services		5

	5.1	Charges for Services	5

	5.2	Invoicing and payment	5

	5.3	Threshold for Services	5

6	Records and Access		6

7	Regular Review		6

8	Subcontracting and Exclusivity		6

9	Data Transfer		6

10	Intellectual Property		6

11	Termination		6

12	Limitation of Liability		7

	12.1	Limitation of Liability	7

	12.2	Exclusion of indirect loss	7

13	Exclusion of Implied Terms and Other Obligations		8

14	GST		8

	14.1	Definitions	8

	14.2	Recovery of GST	8

	14.3	Liability net of GST	8

	14.4	Adjustment events	8

	14.5	Survival	8

15	General		9

	15.1	Relationship of parties	9

	15.2	Costs and duty	9

	15.3	Other terms	9

Schedule 1			10

page (i)


Services Agreement

This Agreement is made on 2016

Parties

1	Genesee & Wyoming Railroad Services, Inc of 20 West Avenue, Darien, Connecticut 06820 USA ( *G&W Inc* )

2	G&W Australia Holdings LP (ABN 30 124 868 215) of 320 Churchill Road, Kilburn, South Australia 5084, Australia (the *Partnership* )

Recital

A	G&W Inc has agreed to provide the Services to the Partnership Group from the Effective Date on the terms and conditions of this Agreement.

At the time of entering into this Agreement it is the intention of the parties to source relevant Services from G&W Inc where G&W Inc has the relevant level of skill or, for example, is able to provide an appropriate and cost-effective level of bulk-buy buying benefit with respect to the relevant Services. The parties note that where it deems it appropriate the Partnership will be free to build its internal capabilities or source relevant Services directly from third parties.

It is agreed as follows.

1	Definitions and Interpretation

1.1

Definitions

The following definitions apply unless the context requires otherwise.

Affiliate has the meaning given in the Partnership Agreement.

Agreement means this agreement.

Business Day means a day which is not a Saturday, Sunday or a public holiday in Adelaide, South Australia, or Darien, Connecticut, Jacksonville, Florida or Rochester, New York if a particular Service is being provided in whole or part from any of those locations.

Data Transfer Deed means the Inter-company Personal Information Transfer Deed dated 23 May 2016.

Effective Date means the date of this Agreement .

Gross Negligence means:

(a)

a higher level of negligence representing a reckless departure from the ordinary standard of care; or

(b)

a serious, wanton or wilful disregard or indifference for an obvious risk.

GWIH2 means GWI Holdings No.2 Pty Ltd (ACN 132 989 998).

IP Owner has the meaning given in clause 10(b).

Intellectual Property Rights means:

(a)

all rights conferred by statute, common law or in equity and subsisting anywhere in the world in relation to:

(i)

registered and unregistered copyright;

(ii)

inventions (including patents, innovation patents and utility models);

(iii)

confidential information, trade secrets, technical data and Know-how;

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Services Agreement

(iv)

registered and unregistered designs;

(v)

registered and unregistered trade marks; and

(vi)

circuit layout designs, topography rights and rights in databases, whether or not any of these is registered, registrable or patentable;

(b)

any other rights resulting from intellectual activity in the industrial, commercial, scientific, literary or artistic fields which subsist or may hereafter subsist;

(c)

any licence or other right to use a domain name; and

(d)

any licence or other similar right from a third party to use any of the above.

IT Services means the services specified in Part 1 of Schedule 1 as varied from time to time by agreement of G&W Inc and the Partnership.

Know-how means information, know-how and techniques (whether or not confidential and in whatever form held) including:

(a)

formulae, discoveries, design specifications, drawings, data, manuals and instructions;

(b)

customer lists, sales marketing and promotional information;

(c)

business plans and forecasts; and

(d)

technical or other expertise.

Other Services means the categories of services set out in Part 2 of Schedule 1 as varied from time to time by agreement of G&W Inc and the Partnership.

Partner means any partner of the Partnership.

Partnership Agreement means the agreement in respect of the Partnership as amended and restated on or about the date of this Agreement.

Partnership Group means:

(a)

the Partnership;

(b)

GWIH2;

(c)

any entity legally or beneficially owned by the Partnership; and

(d)

any Related Body Corporate of:

(i)

GWIH2; and

(ii)

an entity described in paragraph (c).

Partnership Group Member means an entity which is part of the Partnership Group.

Permitted Transferee has the meaning given to that term in the Partnership Agreement.

Personal Information means any information or opinion about a natural person (whether true or not), including ‘personal information’ as that term is defined in the Privacy Act.

Privacy Act means the Privacy Act 1988 (Cth) and all other laws, rules and regulations in Australia which relate to the privacy, protection, use or disclosure of Personal Information.

Privacy Laws means the Privacy Act and all other applicable laws, rules and regulations in Australia relating to the privacy and protection of Personal Information.

Related Body Corporate has the meaning given in the Partnership Agreement .

Related Party Transaction has the meaning given to that term in the Partnership Agreement.

Representatives means in relation to a person or entity, its officers, employees, agents, professional advisers (including financial and legal advisors) or financiers.

page 2


Services Agreement

Services means any of the services listed in Schedule 1.

Threshold means an amount equal to the budgeted costs for the IT Services for that relevant calendar year plus US$400,000 or such other amount as approved in accordance with clause 5.3.

Wilful Misconduct means, in relation to a party:

(a)

any intentional or reckless act or omission of the party with reckless indifference to the possible harmful consequences arising from that act or omission;

(b)

any intentional or reckless breach or any intentional or reckless disregard by a party of this Agreement; or

(c)

any intentionally illegal or malicious act or reckless omission of the party,

but does not include, for the avoidance of doubt, an error of judgment or mistake arising in good faith.

1.2

Interpretation

(a)

Headings are for convenience only and do not affect interpretation.

(b)

Mentioning anything after includes, including, for example, or similar expressions, does not limit what else might be included.

(c)

Nothing in this Agreement is to be interpreted against a party solely on the ground that the party put forward this Agreement or a relevant part of it.

The following rules apply unless the context requires otherwise.

(d)

The singular includes the plural, and the converse also applies.

(e)

A gender includes all genders.

(f)

If a word or phrase is defined, its other grammatical forms have a corresponding meaning.

(g)

A reference to a person or entity includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity.

(h)

A reference to a clause or Schedule is a reference to a clause of, or Schedule to, this Agreement.

(i)

(j)

A reference to writing includes any method of representing or reproducing words, figures, drawings or symbols in a visible and tangible form but excludes a communication by electronic mail.

(k)

(l)

A reference to legislation or to a provision of legislation includes a modification or re- enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it.

(m)

A reference to conduct includes an omission, statement or undertaking, whether or not in writing.

(n)

A reference to an agreement includes any undertaking, deed, agreement and legally enforceable arrangement, whether or not in writing, and a reference to a document

page 3


Services Agreement

includes an agreement (as so defined) in writing and any certificate, notice, instrument and document of any kind.

(o)

A reference to:

(i)

$, A$ or dollars is to Australian currency; and

(ii)

US$ is to United States currency.

1.3

Method of payment

Unless otherwise stated all payments required to be made under this Agreement must be tendered by way of direct transfer of immediately available funds to the bank account nominated in writing by the party to whom the payment is due on the due date for payment. Any payment tendered under this Agreement after the date on which the payment is due will be taken to have been made on the next succeeding Business Day (the deemed payment date ) after the date on which payment was tendered.

Term

(a)

This Agreement commences on the Effective Date and continues for a period of one (1) year from the Effective Date (the Initial Term ), unless earlier terminated as provided in clause 11 below.

(b)

Following the Initial Term, this Agreement shall automatically renew for successive one (1) year periods (each a Renewal Term ), unless notice of non-renewal is provided by one party to the other party at least one (1) year prior to the expiration of the then current Initial Term or Renewal Term (as the case may be).

3	Provision of Services

(a)

During the term of this Agreement, G&W Inc agrees to provide or procure the provision of:

(i)

the IT Services;

(ii)

the Other Services as and when requested by the Partnership in accordance with clause 4 of this Agreement.

(b)

G&W Inc undertakes to the Partnership that the Services will be performed:

(i)

in a competent, professional and timely manner;

(ii)

to the same standard and with the same level of priority that G&W Inc delivers equivalent services for its own internal use;

(iii)

with reasonable skill and care; and

(iv)

in compliance with applicable laws, regulations and industry practices.

(c)

Each party must co-operate in good faith with the other party to the extent reasonably necessary to allow the other party to perform its obligations under this Agreement.

4	Requests for Services

Any Partnership Group Member or any Representative of a Partnership Group Member may make a request to commence or cease any Other Service by any method, including verbally, in writing or by electronic means. Each request for an Other Service must specify and include a description of the Service required by the Partnership.

page 4


Services Agreement

5	Payment for Services

5.1

Charges for Services

(a)

In respect of each Service provided internally by G&W Inc, the Partnership will pay the relevant charges as set out in Schedule 1 attached hereto.

(b)

In respect of each Service procured by G&W Inc but provided by a third party, the Partnership will pay the actual third party cost charged in respect of that Service.

5.2

Invoicing and payment

(a)

Within five Business Days of the end of each calendar month, G&W Inc will invoice the Partnership for charges identified during that calendar month under clause 5.1. Charges identified in respect of a Service provided during a calendar month that have not been included in an invoice for that calendar month will be invoiced in a subsequent calendar month invoice. In all cases, charges must be invoiced prior to the date which is 3 months after the end of the G&W Inc financial year during which the relevant Services were provided.

(b)

Unless otherwise agreed by G&W Inc and the Partnership, all charges accrued in accordance with this Agreement must be invoiced in US dollars.

(c)

Subject to clause 5.3, the Partnership must pay G&W Inc the amount specified in the invoice issued under clause 5.2(a) within 20 Business Days of the receipt of that invoice.

5.3

Threshold for Services

(a)

G&W Inc acknowledges that where:

(i)

the Partnership has paid an amount under this agreement exceeding the Threshold in any calendar year; or

(ii)

upon completion of a Service requested under clause 4, the Partnership would be required to pay an amount that in aggregate with all other payments made in the relevant calendar year would exceed the Threshold; or

(iii)

upon completion of an individual Service requested under clause 4, the Partnership would be required to pay an amount in excess of $100,000 in respect of such individual Service,

the provision of such Service or the payment of an invoice by the Partnership where such payment will mean that the Partnership will have paid an amount under this agreement in excess of the Threshold for the relevant calendar year, will be a Related Party Transaction under the Partnership Agreement and any request for such Service or the payment of such invoice must be duly approved in accordance with the Partnership Agreement before payment for such Service or invoice can be made by the Partnership in accordance with clause 5.2.

(b)

If an event set out in clause 5.3(a) occurs or at such other time as reasonably determined by G&W Inc, G&W Inc may request an increase to the amount of the Threshold and any such request cannot be agreed by the Partnership unless the proposed increase to the Threshold has been approved as a Related Party Transaction in accordance with the Partnership Agreement.

page 5


Services Agreement

6	Records and Access

(a)

The Partnership must provide G&W Inc with reasonable access to the relevant Representatives and contractors of the Partnership Group for the purposes of G&W Inc providing each Service.

(b)

Each party must maintain such books, accounts and records as may be necessary in respect of the Services provided and will allow the other party and their Representatives reasonable access during normal business hours to inspect and, where reasonably necessary, take copies of such books, accounts and records including, in the case of G&W Inc, details of the breakdown of actual costs incurred for each Service to a level of detail reasonably requested by the Partnership.

7	Regular Review

The parties must review annually

(a)

the scope of the Services to consider whether the Services will continue to be required and to narrow or broaden the Services as appropriate; and

(b)

the fees payable in respect of the Services during the prior calendar year.

8	Subcontracting and Exclusivity

(a)

G&W Inc may subcontract the performance of any of the Services to a Related Body Corporate and/or to third parties, but will remain responsible for ensuring that the relevant Services are provided in accordance with this Agreement and, unless otherwise agreed, must pay any such Related Body Corporate or third party for its services. For the avoidance of doubt, this paragraph does not limit the Partnership’s obligation to pay the charges for the Services pursuant to clause 5.1(b).

(b)

The provision of the Services by G&W Inc to the Partnership is non-exclusive and the parties acknowledge and agree that the Partnership and Partnership Group Members may obtain services similar to the Services from any other person.

9	Data Transfer

The parties must comply with the Data Transfer Deed in exercising their rights and performing their obligations under this Agreement.

10	Intellectual Property

(a)

Subject to any other agreement between the parties, if a party (the IP Owner ) in the performance of its obligations under this Agreement makes available to another party any pre-existing or independently-developed Intellectual Property Rights owned by the IP Owner, those Intellectual Property Rights will remain the sole property of the IP Owner.

(b)

If a party creates or develops Intellectual Property Rights in the performance of its obligations under this Agreement those Intellectual Property Rights will be owned by the party which developed or created them.

11	Termination

(a)

Either party may terminate this Agreement immediately by notice to the other party if the other party materially defaults in the performance of any of its duties or obligations under this Agreement and that party is unable to remedy that default within 60 calendar days after that other party receives notice of the default. Termination of this Agreement does not affect any accrued rights or remedies of either party.

page 6


Services Agreement

(b)

Clauses 1, 12, 13, 14 and 15 survive termination of this Agreement.

(c)

Where G&W Inc fails to provide a Service in accordance with this Agreement and fails to remedy such a breach to the reasonable satisfaction of the Partnership and on a timely basis, the Partnership may advise G&W Inc it no longer requires the Service and may contract with a third party to provide the relevant Service. In such circumstances, the Partnership is liable to pay G&W Inc for Services performed to date but payment has not yet been received, but otherwise will have no liability to G&W Inc for any cost it has incurred in providing or preparing to provide the Service.

(d)

If this Agreement or the IT Services provided under this Agreement are terminated for any reason, or in instances where the parties agree that a particular IT Service is no longer required by the Partnership or G&W Inc otherwise stops providing the Services to the Partnership, G&W Inc must do all that is reasonably necessary to provide an orderly transition of the IT Services including assisting in the preparation of a transition plan and complying with such a transition plan.

12	Limitation of Liability

12.1

Limitation of Liability

(a)

Subject to clause 12.1(b):

(i)

G&W Inc is not liable to the Partnership, a Partner or any Affiliate of the Partnership or a Partner for losses sustained or liabilities incurred in connection with the provision of the Services, even if arising from the negligence of G&W Inc or any person for whom G&W Inc may be vicariously liable; and

(ii)

the Partnership releases G&W Inc from all claims, actions, demands, proceedings and liability which it may have or claim to have or, but for this release, might have had against G&W Inc or any person for whom G&W Inc may be vicariously liable in connection with the provision of the Services.

(b)

Clause 12.1(a) does not apply to exclude, limit or restrict in any way G&W Inc’s liability to the extent that, in the circumstances relating to or giving rise to the losses or liabilities, G&W Inc or any person for whom G&W Inc may be vicariously liable has committed, or its acts or omissions have involved, Gross Negligence or Wilful Misconduct.

(c)

Notwithstanding any other term of this Agreement, G&W Inc’s aggregate liability to the Partnership for any loss or liability arising out of or in connection with this Agreement shall not exceed the aggregate of all fees and charges paid to or received by G&W Inc in accordance with the terms of this Agreement.

12.2

Exclusion of indirect loss

(a)

Notwithstanding any other clause in this Agreement, G&W Inc is not liable to the Partnership, a Partner or any Affiliate of the Partnership or a Partner (whether by way of indemnity, damages or otherwise) in respect of any indirect loss arising from any breach of this Agreement or negligence. The Partnership releases G&W Inc from all liabilities associated with such losses and must indemnify G&W Inc against all liability arising directly or indirectly from any claim made by the Partnership, a Partner or any Affiliate of the Partnership or a Partner in respect of such losses.

(b)

Without limitation, it is agreed that the following losses constitute indirect loss, whether they arise directly or indirectly from the relevant act or omission:

(i)

loss of profit;

page 7


Services Agreement

(ii)

loss of revenue;

(iii)

loss of opportunity;

(iv)

damage to goodwill or reputation;

(v)

loss of access to markets;

(vi)

loss of anticipated savings;

(vii)

business interruption; and

(viii)

damage to credit rating.

(c)

Where the Partnership has suffered loss due to a third party service provider engaged with G&W Inc, the third party benefits must pass through to the Partnership from the third party service provider on a pro-rata basis.

13	Exclusion of Implied Terms and Other Obligations

To the maximum extent permitted by law, unless expressly provided in this Agreement, all implied terms, conditions, warranties and any other additional obligations are excluded from this Agreement.

GST

14.1

Definitions

Unless the context requires otherwise, words and phrases used in this clause 14 that have a specific meaning in the GST Law (as defined in the GST Act) will have the same meaning in this clause 14.

14.2

Recovery of GST

14.3

Liability net of GST

14.4

Adjustment events

14.5

Survival

This clause will not merge upon completion and will continue to apply after the expiration or termination of this Agreement.

page 8


Services Agreement

15	General

15.1

Relationship of parties

Nothing in this Agreement or the provision of the Services shall create a relationship of employment, agency or partnership between G&W Inc. and the Partnership.

15.2

Costs and duty

Each party must bear its own costs arising out of the negotiation, preparation and execution of this Agreement.

15.3

Other terms

Clauses 23, 24 (excluding 24.2) and 25 of the Partnership Agreement apply as if set out in full in this Agreement.

page 9


Services Agreement

Schedule 1

Part 1 - IT Services

G&W Inc shall provide information technology services as agreed with the Partnership. Such services may include, the selection, design, construction, development, maintenance, implementation, procurement, provision and repair of computer software, computer hardware and IT systems or services, such as financial systems, email services, network connectivity and computer management.

The fee for the IT Services will be on a pass through basis for all software licensing costs and fees for hardware, network, hosting and related administration services will be at rates in place prior to the Effective Date and as may be adjusted in the future according to the methodology set out below.

Part 2 - Other Services

The Partnership may request other services in the categories set out in the table below. If the Partnership requests such services, the Partnership be billed the rate for the Service in accordance with the methodology described below:

Service

Accounting

Operations Support

Tax

Legal

Safety & Claims

HR & Labour Relations

Business Development

Commercial Support

Insurance

Methodology :

The fees payable in respect of the Services (other than insurance) are based on a bottom-up survey of G&W Inc employees as to time spent on Partnership Group matters – typically by number of days as a pro-rata proportion of the respective employee’s fully loaded cost (salary and benefits), except for the IT Services which include various licenses maintained on behalf of G&W Inc. controlled entities and several of the Partnership Group’s systems maintained on servers based in the U.S. (e.g., e-mail and financial systems) – as such, the IT portion represents an estimate of the cost of providing IT services to the Partnership Group on a stand-alone basis, with no margin.

page 10


Services Agreement

Executed as an Agreement.


Signed for Genesee & Wyoming Railroad Services, Inc by its authorised representative in the presence of:
				Authorised representative signature


Witness signature				Print name


Print name				Position

GWI International Pty Ltd as general partner of the Partnership executing this Agreement states that it has had no notice of the revocation or suspension of its power to bind the partnership by agreement.

Executed in accordance with section 127 of the Corporations Act 2001 by GWI International Pty Ltd (ACN 616 014 754) in its capacity as a general partner of G&W Australia Holdings LP :


Director signature				Director/secretary signature


Print name				Print name

page 11


Amendment and Restatement Deed

Executed and delivered as a Deed

Each attorney executing this Deed states that he or she has no notice of revocation or suspension of his or her power of attorney.


MAIF LP

Signed Sealed and Delivered for and on behalf of Macquarie Specialised Asset Management Limited ACN 087 382 965 as trustee for the MAIF Investment Trust ABN 56 501 013 400 by its attorneys under power of attorney dated 16 December 2015 who upon signing this document state that they have no notice of the revocation of this power of attorney:

/s/ Justine Krajewski				/s/ Samantha Brewer
Signature of witness				Signature of Attorney

Justine Krajewski				Samantha Brewer
Print Name				Print Name

225 George Street, Sydney, 2000				/s/ Matthew Sibbison
Address of witness				Signature of attorney

				Matthew Sibbison
				Print name


Amendment and Restatement Deed


MAIT LP

Signed Sealed and Delivered for and on behalf of Macquarie Australian Infrastructure Management 1 Limited ACN 077 595 012 as trustee for the Macquarie Australian Infrastructure Trust 1 ABN 34 678 914 659 by its attorneys under power of attorney dated 21 June 2016 who upon signing this document state that they have no notice of the revocation of this power of attorney:

/s/ Justine Krajewski				/s/ Samantha Brewer
Signature of witness				Signature of Attorney

Justine Krajewski				Samantha Brewer
Print Name				Print Name

225 George Street, Sydney 2000				/s/ Matthew Sibbison
Address of witness				Signature of attorney

				Matthew Sibbison
				Print name

MIRA GP

Executed as a deed by Scissor Holdings Pty Ltd ACN 614 520 302 in accordance with section 127 of the Corporations Act 2001:

/s/ Samantha Brewer				/s/ Matthew Sibbison
Director/company secretary				Director

SAMANTHA BREWER				MATTHEW SIBBISON
Name of director				Name of director
(BLOCK LETTERS)				(BLOCK LETTERS)


Amendment and Restatement Deed


PGGM LP

Signed Sealed and Delivered for and on behalf of Stichting Depositary PGGM Infrastructure Funds, acting in its capacity as title holder of PGGM Infrastructure Fund 2016 and herein represented by PGGM
Vermogensbeheer B.V. as its attorney in fact:				Seal

/s/ David Wilcox				/s/ A.B. Pasma
Signature of witness				By: A.B. Pasma

David Wilcox
Print Name				Title: Director

Noordweg Nord 150, 3704 JG Zeist, Netherlands				/s/ B. Rädecker
Address of witness				By: B. Rädecker


				Title: Director


Amendment and Restatement Deed


GWI

Signed Sealed and Delivered for Genesee & Wyoming Inc by its authorised representative in the presence of:				/s/ Matthew O. Walsh
				Authorised Representative Signature

/s/ Alfred Ricotta				Matthew O. Walsh
Witness Signature				Print Name

Alfred Ricotta				Executive Vice President, Global Corporate Development
Print Name				Position

Exhibit 10.2

LOGO

EXECUTION VERSION

Project Monty - Syndicated Facility Agreement

Dated 28 November 2016

GWI Acquisitions Pty Ltd (ACN 615 317 130) (“ Borrower ”)

Each person listed as an Obligor in schedule 1 (together with the Borrower, “ Original Obligors ”)

National Australia Bank Limited (ABN 12 004 044 937) (“ Agent ”)

Each person listed as a Lender and Mandated Lead Arranger in schedule 2 (“ Original Lenders and MLAs ”)

King & Wood Mallesons

Level 61

Governor Phillip Tower

1 Farrer Place

Sydney NSW 2000

Australia

T +61 2 9296 2000

F +61 2 9296 3999

DX 113 Sydney

www.kwm.com

REF: PJD: 602-0017222

Project Monty - Syndicated Facility Agreement

Contents


Details		1

General terms		2


Part 1 Interpretation		2


1	Definitions and interpretation	2

1.1	Definitions	2
1.2	Interpretation	39
1.3	Incorporation of defined terms	41
1.4	Security Trust Deed	41
1.5	Obligations of Lenders to act reasonably	41


Part 2 The Facilities		41


2	The Facilities	41

2.1	Lenders to provide financial accommodation	41
2.2	Finance Party’s rights and obligations	42


3	Purpose	42

3.1	Purpose	42
3.2	No obligation to monitor	42


4	Using the Facilities	42

4.1	Conditions to first Utilisation	42
4.2	Conditions to all Utilisations	43
4.3	Drawdown during the Certain Funds Period	43
4.4	Number of Utilisations	44


5	Utilisations – Loans	44

5.1	Requesting a Utilisation – Loans	44
5.2	Completing a Utilisation Notice – Loans	44
5.3	Currency and amount	45
5.4	Lenders’ participation	45
5.5	Cancellation – end of the Availability Period	45
5.6	Clean Down	45


6	Utilisations – Letters of Credit	45

6.1	Tranche B	45
6.2	Delivery of a Utilisation Notice for Letters of Credit	46
6.3	Completing a Utilisation Notice – Letters of Credit	46
6.4	Currency and amount	46
6.5	Issue of Letters of Credit	46
6.6	Renewal of a Letter of Credit	47
6.7	Notification to the Agent	47
6.8	Reduction or expiry of Letter of Credit	47
6.9	Letter of Credit which does not expire before the Maturity Date for Tranche B	48

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6.10	Extension of existing Letters of Credit	48


7	Letters of Credit	48

7.1	Claims under Letter of Credit	48
7.2	Indemnities	49
7.3	Rights of contribution	50
7.4	Voluntary pay-out	50


Part 3 Repayment, prepayment and cancellation		51


8	Repaying and cancelling	51

8.1	Repayment of Tranche A1 Loan	51
8.2	Repayment of Tranche A2 Loan	51
8.3	Repayment of Tranche B Loans	51
8.4	Voluntary prepayment	52
8.5	Voluntary cancellation	52
8.6	Illegality – Loans	53
8.7	Illegality – Letters of Credit	53
8.8	Restrictions	53


9	Mandatory prepayments	54

9.1	Mandatory prepayments	54
9.2	Application of mandatory prepayments	55
9.3	Timing of mandatory prepayments	56
9.4	Year 5 Mandatory Prepayment	56
9.5	RHA Termination Payment	57


10	Replacement or repayment and cancellation in relation to a Lender	57

10.1	Right to replace a Lender or repay and cancel commitments	57
10.2	Procedure to replace a Lender or repay and cancel commitments	58
10.3	Conditions	59


Part 4 Costs of Utilisations		59


11	Interest	59

11.1	Interest charges	59
11.2	Notification of Interest Periods	60
11.3	When Interest Periods begin and end	60
11.4	Consolidation of Loans	60


12	Changes to the calculation of interest	61

12.1	Unavailability of Screen Rate	61
12.2	Calculation of Reference Bank Rate	61
12.3	Market disruption	61
12.4	Cost of funds	62
12.5	Agent’s role and confidentiality	62
12.6	Right to prepay and substitute an MD Affected Lender	62


13	Fees	62

13.1	Fees contingent	62
13.2	Commitment fees	62
13.3	Establishment fees	63
13.4	Agency fees	63

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13.5	Letter of Credit fees	63


14	Interest on overdue amounts	64

14.1	Obligation to pay	64
14.2	Compounding	64


15	Break Costs	64


16	Reliquifying Bills	64

16.1	Obligation to draw Bills	64
16.2	Lender as attorney	65
16.3	Termination	65
16.4	No recourse to Borrower	65
16.5	Indemnity by Lender	65


Part 5 Additional payment obligations		65


17	Tax gross up and indemnities	65

17.1	Definitions	65
17.2	Tax gross up	65
17.3	Tax indemnity	66
17.4	Tax credit	67
17.5	Stamp duty and Taxes	67
17.6	Indirect Taxes	67
17.7	FATCA information	68
17.8	FATCA Deduction	68


18	Increased Costs	69

18.1	Increased Costs	69
18.2	Increased Costs claim	69
18.3	Exceptions	69


19	Other indemnities	70

19.1	Currency indemnity	70
19.2	Other indemnities	70
19.3	Indemnity to the Agent	71


20	Mitigation by the Finance Parties	71

20.1	Mitigation	71
20.2	Limitation of liability	71


21	Costs and expenses	72

21.1	Transaction expenses	72
21.2	Amendment and other costs	72
21.3	Enforcement costs	72


Part 6 Representations and warranties, undertakings, Events of Default and Review Event		72


22	Representations and warranties	72

22.1	Representations and warranties	72
22.2	Repetition	77
22.3	Reliance	77

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iii




23	Undertakings	77

23.1	Information undertakings	78
23.2	Financial Covenants	80
23.3	Distributions	81
23.4	Accounting policy	83
23.5	General undertakings	83
23.6	Undertakings relating to Security and guarantees	87
23.7	Negative undertakings	89
23.8	Refinancing Debt	90


24	Events of Default	91

24.1	Events of Default	91
24.2	Consequences of an Event of Default	93
24.3	Equity cure	94
24.4	Clean-up Period	95
24.5	LC cash cover	96


25	Review Event	96

25.1	Review Event	96
25.2	Consequences of a Review Event	96
25.3	Conditions	98
25.4	RHA Review Event criteria	99


Part 7 Change to the Parties		100


26	Change in Lenders	100

26.1	Lender may assign or novate	100
26.2	Permitted assignment or transfer	100
26.3	Limitation of responsibility of Existing Lenders	102
26.4	Procedure for transfer	103
26.5	Agent’s obligations on receipt of Transfer Certificate	103
26.6	Security over Lenders’ rights	104
26.7	Assignment or novation fee	104
26.8	Borrower not required to pay additional amounts	104
26.9	Borrower not required to pay stamp duty	105


27	Change in Obligors	105

27.1	No assignment or transfers by Obligors	105
27.2	Accession of GRail	105
27.3	New Obligors	106
27.4	Resignation of Obligors	106


28	Relationship between Finance Parties	107

28.1	Appointment and authority	107
28.2	Scope of Agent’s obligations and duties	107
28.3	Role of the MLAs	108
28.4	Business with the Obligors	108
28.5	Lenders bound by Agent’s actions	108
28.6	Agent to follow instructions	108
28.7	How Agent asks for instructions and Lenders give them	108
28.8	Failure to respond and Defaulting Finance Party	109
28.9	Restrictions on variations and waivers	109
28.10	Borrower need not enquire	111

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28.11	Own enquiries about the Obligors	111
28.12	Agent not obliged to monitor performance or provide information	112
28.13	No obligations to do “know your customer” checks	112
28.14	Information Agent must provide	112
28.15	When Agent is aware of a Default or Review Event	112
28.16	Information received by another division of the Agent	112
28.17	Agent to give notices and communications	113
28.18	Agent not responsible for information	113
28.19	Agent need not act in breach	113
28.20	Force majeure	113
28.21	Exoneration	113
28.22	No liability for Lender’s breach	114
28.23	Agent’s other activities	114
28.24	Agent may delegate	114
28.25	Agent may rely on communications and opinions	114
28.26	Notice of assignment or novation	115
28.27	Correspondence	115


29	Funding of the Agent	115

29.1	Agent may require funding or security before acting	115
29.2	Lenders may fund other Lenders	116


30	Change of Agent	116

30.1	Retirement	116
30.2	Removal	116
30.3	FATCA retirement	116
30.4	Permitted replacements	116
30.5	How the change takes effect	117
30.6	Outgoing Agent’s obligations	117
30.7	Costs of changing Agent	117
30.8	Agent must notify appointment	117


Part 8 Public Offer		117


31	Public Offer	117

31.1	Representations, warranties and undertakings	117
31.2	Borrower’s confirmation	118
31.3	Lenders’ representations and warranties	118
31.4	Information	118


Part 9 Finance Parties and sharing provisions		118


32	Conduct of business by the Finance Parties	118


33	Sharing among the Finance Parties	119

33.1	Payments to Finance Parties	119
33.2	Redistribution of payments	119
33.3	Recovering Finance Party’s rights	119
33.4	Reversal of distribution	120
33.5	Exceptions	121

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Part 10 Administration		121


34	Payment mechanics	121

34.1	Payments to the Agent	121
34.2	Distributions by the Agent	121
34.3	Distributions to an Obligor	122
34.4	Clawback and pre-funding	122
34.5	Agent as a Defaulting Finance Party	122
34.6	Partial payments	123
34.7	No set-off by Obligors	123
34.8	Business Days	123
34.9	Currency of account	124


35	Anti-money laundering and sanctions	124


36	KYC	126


37	Set-off	126


Part 11 General		127


38	Notices and communications	127

38.1	Communications in writing	127
38.2	Addresses	127
38.3	Delivery	127
38.4	Notification of address, fax number, email address	128
38.5	Communications if Agent is a Defaulting Finance Party	128
38.6	Email communication	128
38.7	Reliance	129
38.8	English language	129


39	Calculations and certificates	129

39.1	Accounts	129
39.2	Certificates and determinations	129
39.3	Day count convention	129


40	Partial invalidity	129


41	Remedies and waivers	130


42	Confidentiality	130

42.1	Confidential information	130
42.2	Disclosure of Confidential Information	130
42.3	Privacy	132
42.4	Continuing obligations	132
42.5	Entire agreement	132
42.6	Inside information	132
42.7	Notification of disclosure	132

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43	Counterparts	132


44	Indemnities and reimbursement	133


45	Code of Banking Practice	133


46	Governing law and jurisdiction	133


47	Contractual recognition of Bail-in	133

Schedule 1 – Original Obligors		134

Schedule 2 – Original Lenders and MLAs		138

Schedule 3 – Utilisation Notice		145

Part A – Form of Utilisation Notice (Loans)		145

Part B – Form of Utilisation Notice (Letter of Credit)		147

Schedule 4 – Interest Period Selection Notice		149

Schedule 5 – Form of Transfer Certificate		150

Schedule 6 – Initial Conditions Precedent		152

Schedule 7 – Tranche A1 Repayment Schedule		155

Schedule 8 – Form of Accession Deed (Additional Obligor)		156

Schedule 9 – Form of Obligor Resignation Deed		158

Schedule 10 – Form of Compliance Certificate		159

Schedule 11 – Form of Letter of Credit		160

Part A – Form of Letter of Credit		160

Part B – Form of Bank Guarantee		163

Schedule 12 – Form of Verification Certificate		166

Schedule 13 – Excluded Contracts		168

Schedule 14 – Approved Lenders		170

Part A – Banks		170

Part B – Funds, insurance companies and investment banks		171

Signing page		172

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Project Monty - Syndicated Facility Agreement

Details


Date	28 November 2016

Parties	Borrower, Original Obligors, Agent, Original Lenders and Mandated Lead Arrangers

Borrower	Name	GWI Acquisitions Pty Ltd

	ACN	615 317 130

	Address	Level 3, 33 Richmond Road, Keswick SA 5035

	Fax	+61 8 8343 5454

	Telephone	+61 8 8343 5455

	Email	mmorris@gwrr.com

	Attention	Chief Financial Officer, GWA

Original Obligors	Each person (together with the Borrower) listed as an Obligor in schedule 1 (“Original Obligors”). Their contact and notice details are also in schedule 1 (“Original Obligors”).

Mandated Lead Arrangers	Each person listed in Part A of schedule 2 (“Original Lenders and MLAs”). Their contact and notice details are also in Part A of schedule 2 (“Original Lenders and MLAs”).

Original Lenders	Each person listed in Part A of schedule 2 (“Original Lenders and MLAs”). Their contact and notice details are also in Part A of schedule 2 (“Original Lenders and MLAs”).

Agent	Name	National Australia Bank Limited

	ABN	12 004 044 937

	Address	Level 25, 255 George Street, Sydney NSW 2000

	Telephone	+61 2 9237 1040

	Fax	+61 2 9237 1634

	Email	Richard.Wheeler@nab.com.au

	Attention	Richard Wheeler, Director, Agency & Trustee Services

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Project Monty - Syndicated Facility Agreement

General terms

Part 1 Interpretation

1	Definitions and interpretation

1.1

Definitions

These meanings apply unless the contrary intention appears:

AARC means AustralAsia Railway Corporation (ABN 43 839 400 411).

Accession Deed (Additional Obligor) means a document substantially in the form set out in schedule 8 (“Form of Accession Deed (Additional Obligor)”).

Accounting Principles means accounting principles and practices applying by law or otherwise generally accepted in Australia and the United States consistently applied, including Australian Accounting Standards (developed and maintained by the Australian Accounting Standards Board) and U.S. GAAP.

Additional Equity Contribution has the meaning given in clause 24.3(a) (“Equity cure”).

Additional Obligor means:

(a)

following the date on which it accedes to this agreement in the capacity as an Obligor in accordance with clause 27.2 (“Accession of GRail”), GRail; and

(b)

each other New Obligor,

and who, in each case, has not ceased to be an Obligor in accordance with the terms of this agreement.

Affected Lender has the meaning given in clause 10.1 (“Right to replace a Lender or repay and cancel commitments”).

Affiliate means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.

Approved Lender means each Original Lender and each entity listed in schedule 14 (“Approved Lenders”).

Associate has the meaning given to it in section 128F(9) of the Tax Act.

AustralAsia Railway Project Concession Deed means the concession deed between AARC, The Northern Territory of Australia, The Crown in the right of the State of South Australia and GWA (North) (as amended and restated on 1 December 2010).

Australian Privacy Principles means the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth).

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Australian Withholding Tax means any Australian Tax required to be withheld or deducted from any interest or other payment under Division 11A of Part III of the Tax Act or Subdivision 12-F of Schedule 1 to the Taxation Administration Act 1953 (Cth).

Authorisation means:

(a)

any consent, authorisation, registration, filing, lodgement, agreement, notarisation, certificate, permission, licence, approval, authority or exemption from, by or with a Government Agency; or

(b)

in relation to anything which will be fully or partly prohibited or restricted by law if a Government Agency intervenes or acts in any way within a specified period after lodgement, filing, registration or notification, the expiry of that period without intervention or action.

Authorised Officer means:

(a)

in relation to an Obligor, a director or secretary of the Obligor and each person appointed as an “Authorised Officer” of the Obligor by notice to the Agent (that notice being accompanied by a certified copy of the signature of the appointee), whose identity has been verified to the satisfaction of each Finance Party in order to manage its “know your customer” and similar checks and whose appointment has not, prior to that time, been revoked by the Obligor by notice to the Agent; or

(b)

in relation to a Finance Party, a director or secretary or any person who purports to be a “manager”, “head”, “counsel”, “chief”, “executive”, “director”, “vice president” or “president” (or a person performing, or purporting to perform, the functions of any of them) of that party, at that time.

Availability Period means:

(a)

in relation to Tranche A1 and Tranche A2, the period from and including the date of Financial Close to and including the date that is 20 Business Days after the date of Financial Close; or

(b)

in relation to Tranche B, the period from and including the date of Financial Close to and including the date that is 1 month prior to the Maturity Date for Tranche B.

Available Commitment means, in relation to a Facility, a Lender’s Commitment under that Facility minus:

(a)

the amount of its participation in any outstanding Utilisations under that Facility; and

(b)

in relation to any proposed Utilisation, the amount of its participation in any Utilisations that are due to be made under that Facility on or before the proposed Utilisation Date,

other than, in relation to any proposed Utilisation under Tranche B only, that Lender’s participation in any outstanding Utilisations under Tranche B that are due to be repaid or prepaid on or before the proposed Utilisation Date.

Available Facility means, in relation to a Facility, the aggregate for the time being of each Lender’s Available Commitment in respect of that Facility.

Bail-in Action means the exercise of any Write-down and Conversion Powers.

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Bail-in Legislation means, in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time.

Bank Base Case Financial Model means the financial model agreed between the Borrower and the Original Lenders as an Initial Condition Precedent.

Base Currency means Australian dollars.

Basel III means:

(a)

the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;

(b)

the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text” published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and

(c)

any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”.

BBSY Bid means in relation to any Loan in Australian dollars:

(a)

the applicable Screen Rate as of the Specified Time for Australian dollars and for a period equal in length to the Interest Period of that Loan; or

(b)

as otherwise determined pursuant to clause 12.1 (“Unavailability of Screen Rate”).

The rate set must be expressed as a percentage rate per annum and be rounded up to the nearest fourth decimal place.

Bid Date means 14 October 2016.

Bill has the meaning it has in the Bills of Exchange Act 1909 (Cth) and a reference to the drawing, acceptance or endorsement of, or other dealing with, a Bill is to be interpreted in accordance with that Act.

Break Costs means the amount (if any) by which:

(a)

the interest (exclusive of the Margin component) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;

exceeds:

(b)

the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on

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deposit with a leading bank in the Relevant Market or acquiring a bill of exchange accepted by a leading bank for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.

It is an amount payable in lieu of interest which would otherwise have been paid.

Business Day means a day (other than a Saturday, Sunday or public holiday in that place) on which banks are open for general business in Sydney and Melbourne.

Calculation Date means, in each calendar year, the last day of each Quarter. The first Calculation Date will be 30 June 2017 or such earlier Quarter end date as notified by the Borrower to the Agent.

Calculation Period means, in respect of each Calculation Date, the 12 month period ending on that Calculation Date, other than where the period from Financial Close to that Calculation Date is less than 12 months, in which case clause 23.2(c) (“Financial Covenants”) will apply.

Cash Sweep Event will exist if, on any two consecutive Calculation Dates, a Lock-Up Event exists.

Certain Funds Event means any of the following:

(a)

the Initial Conditions Precedent or the conditions precedent in clause 4.2 (“Conditions to all Utilisations”) have not been satisfied or waived by the Agent (acting on the instructions of all the Original Lenders), except that a Utilisation Notice delivered during the Certain Funds Period will, in respect of confirmations as to no Default or misrepresentation subsisting at the time of delivery of the Utilisation Notice, only require confirmation in respect of the Major Representations and the Major Defaults and nothing else;

(b)

a Major Default is subsisting;

(c)

a Major Representation of an Obligor is not true and correct in all material respects; or

(d)

it is unlawful for the Original Lenders to perform any of their obligations in respect of the Facilities (for the avoidance of doubt the Lenders remain liable to perform those obligations that are not unlawful).

Certain Funds Period means, in respect of each Original Lender, the period from (and including) the Bid Date until (and including) the date that is 90 days after the Bid Date (or any extended period agreed between the Borrower and the Original Lenders).

CFADS means, for a Calculation Period ending on a Calculation Date (without double-counting):

(a)

EBITDA; plus or minus

(b)

negative or positive movements in working capital of the GWA Group; less

(c)

Operating Expenses (excluding costs, expenses and losses excluded from the calculation of EBITDA); less

(d)

expenditure on Growth Capex to the extent not funded from:

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(i)

Permitted Financial Indebtedness;

(ii)

equity contributions; or

(iii)

any amount that was available in a previous period to pay a Distribution but which has been retained and not distributed; less

(e)

Taxes paid in cash by the GWA Group (net of rebates, refunds or credits for Taxes received by the GWA Group) for that period,

in each case, for that Calculation Period.

Change of Control Review Event has the meaning given in clause 25.1 (“Review Event”).

Code means the US Internal Revenue Code of 1986.

Commitment means a:

(a)

Tranche A1 Commitment;

(b)

Tranche A2 Commitment; or

(c)

Tranche B Commitment.

Competitor means any person from time to time which is involved in the freight rail, transport, logistics and rail infrastructure operation and maintenance businesses, including Aurizon, Pacific National, Brookfield Rail, Watco, Qube, Toll, Patrick, DP World and SCT Logistics (or any of their Affiliates) and Australian Rail Track Corporation.

Completion has the meaning given in the Share Sale Agreement.

Compliance Certificate means a certificate substantially in the form set out in schedule 10 (“Form of Compliance Certificate”).

Concession Document means:

(a)

each SA Ground Lease; and

(b)

the AustralAsia Railway Project Concession Deed.

Confidential Information means all information relating to any Obligor, the Finance Documents, a Facility or the Transaction of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or a Facility from either:

(a)

an Obligor or any of its Affiliates;

(b)

any Connected Person of an Obligor or its Affiliates; or

(c)

another Finance Party, if the information was obtained by that Finance Party directly or indirectly from an Obligor or its Affiliates (or any Connected Person of an Obligor or its Affiliates),

in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which

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contains or is derived or copied from such information but excluding information that:

(d)

is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of clause 42 (“Confidentiality”); or

(e)

is identified in writing at the time of delivery as non-confidential by any Obligor or its Affiliate (or any Connected Person of an Obligor or its Affiliates); or

(f)

is known by that Finance Party before the date the information is disclosed to it in accordance with sub-paragraphs (c) or (d) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Obligors and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.

Connected Person means, in relation to any person, any director, officer, employee, agent, attorney, auditor or other adviser of that person.

Contested Tax means any Tax payable by an Obligor where that Obligor:

(a)

in good faith and in accordance with proper procedures, is contesting its liability to pay that Tax;

(b)

is not required by applicable law to pay that Tax before contesting its liability to pay the Tax; and

(c)

in respect of which it has made appropriate provisions (if any) having regard to Accounting Principles and for which it has set aside equivalent reserves.

Core Business means the freight rail, transport, logistics and rail infrastructure operation and maintenance businesses operated by the GWA Group, including:

(a)

the rail freight and rail infrastructure business in South Australia known as “SA Rail” which is the subject of the SA Ground Leases;

(b)

the rail freight and rail infrastructure business between Adelaide and Darwin which is the subject of the AustralAsia Railway Project Concession Deed;

(c)

to the extent not already included in paragraphs (a) or (b) above, the rail freight, transport and logistics businesses operated by GWA from time to time;

(d)

the rail freight business operated by the Freightliner Entities; and

(e)

on and from Completion, the rail freight business operated by GRail.

Corporation Loan means the $50 million concessional loan from AARC to GWA (North).

Corporations Act means the Corporations Act 2001 (Cth).

Costs includes costs, charges and expenses, including those incurred in connection with advisers and any legal costs on a full indemnity basis.

Debt Financiers Security has the meaning given in the Debt Financiers Tripartite Deed (2010).

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Debt Financiers Tripartite Deed (2010) has the meaning given in the AustralAsia Railway Project Concession Deed.

Debt Service means, in respect of a period (without double-counting):

(a)

Interest Expense for that period; and

(b)

the aggregate of all scheduled principal repayments under the Finance Documents (as defined in the Security Trust Deed) paid or payable during that period.

Debt Service Cover Ratio or DSCR means, for a Calculation Period ending on a Calculation Date, the ratio of A:B where:

A = CFADS for that Calculation Period; and

B = Debt Service for that Calculation Period.

Default means an Event of Default or a Potential Event of Default.

Defaulting Finance Party means any Finance Party which:

(a)

is or is adjudicated to be insolvent;

(b)

in the case of a Lender, fails to participate in a Loan under this agreement (or has notified the Borrower or the Agent that it will not participate in a Utilisation under this agreement) when it is obliged to do so;

(c)

in the case of an Issuing Bank:

(i)

fails to issue, renew or extend a Letter of Credit (or has notified the Borrower or the Agent that it will not issue, renew or extend a Letter of Credit) when it is obliged to do so; or

(ii)

fails to pay a claim (or has notified the Agent or the Borrower that it will not pay a claim) in accordance with clause 7.1 (“Claims under a Letter of Credit”);

(d)

without limiting paragraphs (b) and (c) above, fails to make a payment (in any capacity) when due under this agreement or has notified a party that it will not make such a payment;

(e)

repudiates or rescinds any Finance Document;

(f)

is the subject of Bail-in Action; or

(g)

is wound up or has a Controller appointed to it (or any analogous process),

unless, in the case of paragraphs (b), (c) and (d) above, its failure to participate in a Utilisation or to pay an amount is caused by an administrative or technical error or a Disruption Event and, in either case, the relevant Utilisation or payment is made within 3 Business Days of its due date or the Finance Party is disputing in good faith whether it is contractually obliged to make the payment in question.

Details means the section of this agreement entitled “Details”.

Disposal means a sale, transfer or other disposal by a person of any asset (whether by way of a single transaction or series of transactions).

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Disruption Event means either or both of:

(a)

a material disruption to those payment or communication systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facilities (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the parties to this agreement; or

(b)

the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a party to this agreement preventing that, or any other party to this agreement:

(i)

from performing its payment obligations under the Finance Documents; or

(ii)

from communicating with other parties to this agreement in accordance with the terms of the Finance Documents,

and which (in either such case) is not caused by, and is beyond the control of, the party to this agreement whose operations are disrupted.

Distribution means any dividend, charge, interest, payment or other distribution or repayment to or for the benefit of any holder of units, share capital or partnership interests in an Obligor and includes any payment in respect of any Subordinated Debt but excludes:

(a)

any payment of reasonable director’s fees in any Financial Year, provided that no Default or Review Event has occurred and is continuing or will arise as a result of payment;

(b)

any dividend or distributions where there has been or will simultaneously be, one or more subscriptions for new units, partnership interests or shares by applicable unitholders in a relevant trust, partners or shareholders in the relevant Obligor, where the new units, partnership interests or shares are subject to the Security and the subscription is for an amount at least equal to such dividend or distribution;

(c)

in respect of a Financial Year, payments made pursuant to any arm’s length administrative services agreement for the provision of corporate and support services (the scope of which is consistent with agreements of that nature), including out-of-pocket expenses;

(d)

any distribution by one Obligor to another Obligor or payment pursuant to a Tax Funding Arrangement or Tax Sharing Arrangement; and

(e)

any dividend, payment or other distribution to one or more Minority Investors (provided that the aggregate amount of such dividend, payment or other distribution does not exceed the pro rata entitlement of the Minority Investors based on the percentage holding of the Minority Investors as at the date of this agreement).

Distribution Conditions has the meaning given in clause 23.3(a) (“Distributions”).

Dormant Entity means each of:

(a)

ARG Sell Down Holdings Pty Limited (ABN 55 096 337 816);

(b)

GWA Holdings Pty Limited (ABN 62 095 319 672);

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(c)

ARG Sell Down No2 Pty Limited (ABN 80 096 337 923); and

(d)

GWA Operations North Pty Limited (ABN 88 093 145 290).

EBITDA means, in respect of a 12 month period ending on a Calculation Date, the consolidated net profit of the GWA Group for that period and (without double counting):

(a)

after adding back interest expense of the GWA Group in respect of the period (adjusted for the net effect of interest rate hedging transactions);

(b)

after excluding any accrued interest paid or payable to any member of the GWA Group;

(c)

after adding back corporate tax or tax on income or gains of the GWA Group in respect of the period;

(d)

before deducting (but if deducted, after adding back) any depreciation on fixed assets and any amortisation or impairment of any assets of the GWA Group in respect of the period;

(e)

after excluding costs, expenses and income resulting from any one-off, non-recurring, extraordinary, unusual or exceptional items (including significant items or abandonments);

(f)

after excluding unrealised gains or losses on hedging contracts and realised gains or losses on termination of hedging contracts;

(g)

after excluding amounts paid or payable in relation to any Subordinated Debt;

(h)

after excluding non-cash items taken into account in calculating the consolidated net profit of the GWA Group;

(i)

after excluding any transaction and one-off costs and expenses in respect of:

(i)

the Transaction or the Facilities (or both) in accordance with the agreed Funds Flow Statement; or

(ii)

any other Permitted Acquisition or Growth Capex (whether consummated or not) incurred by a member of the GWA Group during that period;

(j)

after deducting (to the extent otherwise included) any gain against book value incurred by a member of the GWA Group on the disposal of any asset (not being a disposal made in the ordinary course of trading) during that period and before taking account of any loss or gain on any revaluation or impairment of any asset during the period;

(k)

after adding back any non-cash costs related to any management incentive scheme or any other similar share or other ownership interest based employee compensation scheme of the GWA Group;

(l)

after excluding any non-cash current service costs, net interest costs or actuarial gains or losses on defined benefit superannuation schemes of the GWA Group;

(m)

to the extent included in net profit of the GWA Group, excluding any net profit (or loss) of any Excluded Subsidiary and any other entity which is not part of the consolidated group but including any net cash

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distributions actually received by the consolidated group from such entity sourced from their excess operating cashflow or other internally generated cashflow; and

(n)

after adding back fees paid or payable to the Agent and the Security Trustee (in that capacity) under the Agency and Security Trustee Fee Letter.

For Permitted Acquisitions made or Growth Capex undertaken during a 12 month period ending on a Calculation Date which forms part of the consolidated group, EBITDA will be adjusted (without double counting) by an entity to include:

(i)

the pro-forma earnings before interest, tax, depreciation and amortisation (calculated in the same way as EBITDA) attributable to the Permitted Acquisition or, in the case of Growth Capex in connection with contracted revenue, attributable to that Growth Capex, in each case for that part of the 12 month period up to (but excluding) the date of the Permitted Acquisition made or Growth Capex undertaken, provided that those adjustments are certified by the Chief Financial Officer of the Borrower and if they exceed A$10 million in aggregate, those adjustments exceeding A$10 million must also be certified by any one of the “big four” accounting firms selected by the Borrower or any third party or consultant reasonably acceptable to the Agent; and

(ii)

the actual earnings before interest, tax, depreciation and amortisation for that part of the 12 month period from (and including) the date of the Permitted Acquisition made or Growth Capex undertaken.

Where an entity, business or other asset is sold, transferred or otherwise disposed of by any GWA Group member during such period, no EBITDA generated by that entity, business or other asset will be included.

EEA Member Country means any member state of the European Union, Iceland, Liechtenstein and Norway.

Environment includes the natural physical surroundings of mankind (whether affecting individuals or groupings of individuals) and any man-made changes to them.

Environmental Law means a provision of a law, regulation or directive issued by a Government Agency which is binding on an Obligor or its assets regulating or relating to an aspect of planning, the Environment, heritage, health or safety.

Equity Cure means an equity cure of the breach of a Financial Covenant effected in accordance with clause 24.3 (“Equity cure”).

EU Bail-In Legislation Schedule means the document described as such and published by the Loan Market Association (or any successor person) from time to time.

Event of Default means any event or circumstance specified as such in clause 24.1 (“Events of Default”).

Excluded Contract means each agreement referred to in schedule 13 (“Excluded Contracts”).

Excluded Subsidiary means:

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(a)

each Dormant Entity; and

(b)

each member of the Hold Co Group which is not an Obligor and is not required to become an Obligor in accordance with clause 23.6(e) (“Obligor Coverage Test”).

Expiry Date means, for a Letter of Credit, the last day of its Term.

Facility means:

(a)

each Term Loan Facility; or

(b)

Tranche B,

and Facilities means all of them.

Facility Office means the office or offices notified by a Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days’ written notice) as the office or offices through which it will perform its obligations under this agreement.

FATCA means:

(a)

sections 1471 to 1474 of the Code or any associated regulations;

(b)

any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or

(c)

any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.

FATCA Application Date means:

(a)

in relation to a “withholdable payment” described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014;

(b)

in relation to a “withholdable payment” described in section 1473(1)(A)(ii) of the Code (which relates to “gross proceeds” from the disposition of property of a type that can produce interest from sources within the US), 1 January 2019; or

(c)

in relation to a “passthru payment” described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2019,

or, in each case, such other date from which such payment may become subject to a deduction or withholding required by FATCA as a result of any change in FATCA after the date of this agreement.

FATCA Deduction means a deduction or withholding from a payment under a Finance Document required by FATCA.

FATCA Exempt Party means a party that is entitled to receive payments free from any FATCA Deduction.

Fee Letter means:

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(a)

the Mandate, Commitment and Establishment Fee Letter;

(b)

the Agency and Security Trustee Fee Letter; and

(c)

any other letter or letters entered into between the Borrower and a Finance Party from time to time setting out any fees payable by the Borrower to that Finance Party.

Finance Debt means any present or future, actual or contingent liability in connection with any:

(a)

money borrowed or raised; or

(b)

amount raised in connection with any note purchase facility or the issue of bonds, notes, debentures, units, loan stock or similar instruments; or

(c)

reimbursement obligation or counter-indemnity with respect to a letter of credit, guarantee or similar instrument issued by a bank or financial institution; or

(d)

derivative transaction (and, when calculating the liability in connection with any derivative transaction, only the mark to market value is taken into account unless the derivative transaction has been terminated or closed-out, in which case the liability is the termination amount or close out amount for the derivative transaction); or

(e)

redeemable share or other redeemable security where the holder has the right, or the right in certain circumstances, to require redemption before the final Maturity Date; or

(f)

deferred purchase price of property or services (including securities repurchase agreements but excluding trade accounts payable or accrued liabilities arising in the ordinary course of business which are not more than 90 days overdue or which are being contested in good faith); or

(g)

any Finance Lease; or

(h)

obligation to deliver assets or services paid for in advance by a financier or otherwise relating to a financing transaction; or

(i)

receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis); or

(j)

amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing; or

(k)

any guarantee of any of the above,

but does not include an operating lease and any obligation under a lease which is classed as an operating lease to the extent such obligation becomes, as a result of any changes to the applicable Accounting Principles, a Finance Lease.

In this definition, “ guarantee ” includes:

(i)

any guarantee, indemnity, bond, letter of credit, legally binding comfort letter or similar assurance against loss; or

(ii)

any direct or indirect, actual or contingent obligation to purchase or assume any person’s liabilities, to make an investment in or provide financial accommodation to any person, or to purchase

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any person’s assets, in each case, where that obligation is assumed to assist that person to meet its liabilities; or

(iii)

any other direct or indirect, actual or contingent obligation under which a person is, or may be, responsible for another person’s solvency, financial condition or liabilities.

Finance Document means, for the purposes of this agreement:

(a)

this agreement;

(b)

the Security Trust Deed;

(c)

each Security;

(d)

each Fee Letter;

(e)

any Subordination Agreement;

(f)

each Tripartite Agreement;

(g)

each Accession Deed (Additional Obligor);

(h)

any document which is designated as a “Finance Document” for the purposes of this agreement in writing by the Borrower and the Agent; and

(i)

any document that amends, novates, supplements, extends, restates or replaces any of the above.

Finance Lease means a lease constituting or accounted for in or in a similar way to a finance lease or a capitalised lease under the Accounting Principles and includes any hire purchase agreement.

Finance Party means:

(a)

the Agent;

(b)

each MLA; and

(c)

each Lender,

and Finance Parties means all of them.

Financial Accommodation includes every form of financial accommodation including, without limitation:

(a)

making an advance or loan;

(b)

drawing, accepting, endorsing, discounting, collecting or paying a bill of exchange, cheque or other negotiable instrument;

(c)

entering into any agreement or transaction of any kind as a result of which a debt or liability or a contingent debt or liability arises (including without limitation any Finance Lease); and

(d)

forbearing to require immediate payment of any moneys owing or contingently owing on any account, for any reason whatever,

but for the avoidance of doubt does not include an operating lease.

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Financial Close means the date on which all of the Finance Documents have been executed by all of the parties thereto, and the Agent has confirmed that all Initial Conditions Precedent have been satisfied or waived by the Agent (acting on the instructions of all Lenders).

Financial Covenant has the meaning given in clause 23.2(a) (“Financial Covenants”).

Financial Model means the Bank Base Case Financial Model, as updated from time to time.

Financial Year means each 12 month period ending on 31 December.

Financier Consent Deed means the document so entitled to be dated on or about the date of the Rail Haulage Agreement between Glencore Coal, GRail and the Security Trustee.

Freightliner Entity means:

(a)

Freightliner Australia Pty Ltd (ABN 51 122 522 123);

(b)

Freightliner Australia Coal Haulage Pty Ltd (ABN 46 137 483 713); and

(c)

FLA Coal Services Pty Ltd (ABN 38 137 483 240),

and Freightliner Entities means all of them.

Fund means any unit trust, investment trust, investment company, managed account, limited partnership, general partnership, fund or other collective investment scheme, pension fund, insurance company or any other body corporate or entity.

Funds Flow Statement means the funds flow statement delivered by the Borrower and agreed by the Agent (acting on the instructions of all the Original Lenders) as an Initial Condition Precedent.

Glencore Coal means Glencore Coal Pty Ltd (ABN 18 082 271 930).

Government Agency means any government or any governmental, semi-governmental or judicial entity or authority. It also includes any self-regulatory organisation established under statute or any stock exchange.

GRail means Glencore Rail (NSW) Pty Ltd (ABN 11 079 546 777).

Group Structure Diagram means the group structure diagram delivered by the Borrower and agreed by the Agent (acting on the instructions of all the Original Lenders) as an Initial Condition Precedent, as updated in accordance with this agreement.

Growth Capex means payment for expenditure on the acquisition, development, upgrading or significant refurbishment (including the purchase of new assets to replace obsolete assets) of equipment, machinery, fixed assets, real property (including improvements thereon) or any other capital assets (including any costs incurred in connection with that expenditure) in connection with the Core Business.

GWA means Genesee & Wyoming Australia Pty Ltd (ABN 17 079 444 296).

GWA Group means the Obligors from time to time.

GWA (North) means GWA (North) Pty Ltd (ABN 92 144 081 774).

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GWA (North) Security Documents means:

(a)

the fixed and floating charge dated 29 November 2010;

(b)

the security trust deed dated 29 November 2010; and

(c)

each real property mortgage dated on or about 29 November 2010,

in each case granted by GWA (North) in favour of GWA (as security trustee).

GWI means Genesee & Wyoming Inc.

Head Company means the head company (as defined in the Tax Act) of a Tax Consolidated Group.

Holding Company means in relation to a company or other entity, any other company or other entity in respect of which it is a Subsidiary.

Hold Co means GWI Holdings No.2 Pty Ltd (ABN 53 132 989 998).

Hold Co Group means Hold Co and each of its Subsidiaries (other than the Dormant Entities).

Increased Cost has the meaning given in clause 18.1(b) (“Increased Costs”).

Indirect Tax means any goods and services tax, consumption tax, value added tax or any tax of a similar nature.

Initial Conditions Precedent means each of the conditions precedent to first drawdown of the Facilities as set out in schedule 6 (“Initial Conditions Precedent”).

A person is Insolvent if:

(a)

it is (or states that it is) an insolvent under administration or insolvent (each as defined in the Corporations Act); or

(b)

it is in liquidation, in provisional liquidation, under administration or wound up or has had a Controller, liquidator, provisional liquidator or administrator appointed to its property; or

(c)

it is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute, or dissolved, deregistered or applies to be deregistered (in each case, other than to carry out a reconstruction, reorganisation or amalgamation while solvent on terms approved by the Agent); or

(d)

an application or order has been made (and, in the case of an application, it is not stayed, withdrawn or dismissed within 14 days), resolution passed or any other action taken, in each case in connection with that person, in respect of any of (a), (b) or (c) above; or

(e)

it is the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act (or it makes a statement from which the Agent reasonably deduces it is so subject); or

(f)

it is otherwise unable to pay its debts when they fall due; or

(g)

something having a substantially similar effect to (a) to (f) above happens in connection with that person under the law of any jurisdiction.

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Interest Expense means the sum of the interest, margin, guarantee fees, letter of credit fees, line fees and commitment fees paid or payable under all Finance Debt under the Finance Documents (as defined in the Security Trust Deed) less interest income and adjusted for the net effect of hedging transactions and includes interest and amounts in the nature of interest earned on cash, in accordance with the Accounting Principles, but Interest Expense does not include:

(a)

establishment, upfront or underwriting fees in respect of Finance Debt, including the Facilities, any amortisation of fees or any fees, costs and expenses incurred in connection with refinancing any Finance Debt;

(b)

amounts paid or payable in relation to Subordinated Debt; or

(c)

any non-cash mark to market adjustments made in accordance with the Accounting Principles in respect of any permitted hedging under a Hedge Agreement.

Interest Payment Date means, for a Loan:

(a)

the last day of an Interest Period for that Loan; or

(b)

where an Interest Period for a Loan is longer than 3 months:

(i)

the last day of each 3 month period occurring during the Interest Period; and

(ii)

the last day of the Interest Period,

other than in respect of the first Interest Period for the Tranche A1 Loan and the Tranche A2 Loan, respectively, where the Interest Payment Date shall be the last day of the Interest Period for that Loan.

Interest Period means:

(a)

for a Loan, each period selected in accordance with clause 11.2 (“Notification of Interest Periods”);

(b)

for a Letter of Credit, the Term of that Letter of Credit; and

(c)

in the case of an Unpaid Sum, each period determined in accordance with clause 14 (“Interest on overdue amounts”).

Interest Period Selection Notice means a notice substantially in the form set out in, and completed in accordance with, schedule 4 (“Interest Period Selection Notice”).

Interpolated Screen Rate means, in relation to any Loan, the rate (rounded up to the nearest fourth decimal place) which results from interpolating on a linear basis between:

(a)

the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of the Loan; and

(b)

the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,

each as of the Specified Time for the currency of that Loan.

Investor means:

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(a)

Macquarie Group Limited;

(b)

any Affiliate or Related Body Corporate of Macquarie Group Limited; and/or

(c)

any Fund whose Manager is Macquarie Group Limited or any Affiliate or Related Body Corporate of Macquarie Group Limited.

Issuing Bank means any Lender under Tranche B from time to time.

Joint Venture means any form of joint venture, whether a company, unincorporated entity, undertaking, association, partnership or other similar entity in which an Obligor and a third party which is not an Obligor holds an equity, ownership or participating interest.

LC Beneficiary Notice Date means, in relation to a Letter of Credit which is issued on terms that its Expiry Date will be automatically extended, the earlier of:

(a)

the date on which an Issuing Bank must, under the terms of that Letter of Credit, notify the beneficiary of the Letter of Credit that the then-applicable Expiry Date will not be extended; and

(b)

60 days prior to the then-applicable Expiry Date for that Letter of Credit.

Lender means:

(a)

each Original Lender; and

(b)

each New Lender,

and which has not ceased to be a Lender in accordance with the terms of this agreement.

Letter of Credit or LC means:

(a)

a letter of credit, substantially in the form set out in Part A of schedule 11 (“Form of Letter of Credit”);

(b)

a bank guarantee substantially in the form set out in Part B of schedule 11 (“Form of Letter of Credit”); or

(c)

a letter of credit, bank guarantee, performance bond or other instrument requested by the Borrower in such other form agreed by the Agent with the prior consent of the relevant Issuing Bank (such agreement not to be unreasonably withheld, having regard to the internal policies of the relevant Issuing Bank from time to time),

in each case, issued by an Issuing Bank under Tranche B.

Leverage Ratio means, on a Calculation Date, the ratio of A:B where:

A = Net Senior Debt on that Calculation Date; and

B = EBITDA for the Calculation Period ending on that Calculation Date.

Loan means:

(a)

a Tranche A1 Loan;

(b)

a Tranche A2 Loan; or

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(c)

a Tranche B Loan.

Lock-Up Event means, in respect of any Calculation Date, any of the Distribution Conditions have not been met.

Locked-Up Cash means, in respect of any Calculation Date where a Lock-Up Event subsists, all amounts from the Quarter ending on that Calculation Date which would otherwise have been available to pay a Distribution if the Lock-Up Event was not subsisting.

Majority Lenders means, at any time, those Lenders whose aggregate Commitments are equal to or greater than 66.67% of the Total Commitments under all Facilities at that time.

Major Authorisation means each Authorisation necessary for it to carry on any business it conducts to the extent that failure to obtain, comply with or maintain that Authorisation would be likely to have a Material Adverse Effect.

Major Default means any Events of Default under the following provisions of this agreement:

(a)

clause 24.1(a) (“Non payment”);

(b)

clause 24.1(f) (“Insolvency”);

(c)

clause 24.1(g) (“Rail Haulage Agreement”);

(d)

clause 24.1(h) (“Voidable, repudiation or unlawful”);

(e)

clause 24.1(i) (“Cessation of business”);

(f)

clause 24.1(j) (“Compulsory acquisition”);

(g)

clause 24.1(k) (“Material judgment”); or

(h)

clause 24.1(c) (“Failure to comply with other obligations”) because an Obligor has not complied with one of the following undertakings:

(i)

clause 23.5(a) (“Authorisations”);

(ii)

clause 23.6(c) (“Pari passu ranking”);

(iii)

clause 23.7(a) (“Disposal of assets”);

(iv)

clause 23.7(b) (“Negative pledge”);

(v)

clause 23.7(d) (“Distributions”);

(vi)

clause 23.7(h) (“Finance Debt”);

(vii)

clause 23.7(i) (“Financial Accommodation”); or

(viii)

clause 23.7(j) (“Acquisitions”).

Major Representation means each of the representations set out in the following provisions of this agreement:

(a)

clause 22.1(a) (“Status”);

(b)

clause 22.1(b) (“Power”);

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(c)

clause 22.1(c) (“No contravention”);

(d)

clause 22.1(d) (“Authorisations”);

(e)

clause 22.1(e) (“Validity of obligations and ranking”);

(f)

clause 22.1(h) (“No breach of laws”);

(g)

clause 22.1(k) (“Ownership of assets”);

(h)

clause 22.1(l) (“Solvency”);

(i)

clause 22.1(n) (“Conduct of business”); and

(j)

clause 22.1(p)(ii) (“No trustee or immunity”).

Manager means, in relation to a Fund, a professional manager or adviser of the Fund who, pursuant to a bona fide arrangement evidenced in writing, is responsible for managing investments of the Fund and who (i) makes decisions in respect of the Fund’s investments including the exercise of voting rights (discretionary) or (ii) provides recommendations to the Fund in respect of investments, including in relation to how to exercise voting rights in respect of investments (non-discretionary).

Mandate, Commitment and Establishment Fee Letter means the letter entitled “Mandate, Commitment and Fee Letter – Project Monty” dated 14 October 2016 between Hold Co and each Original Lender and MLA (as amended).

Margin means, for a Loan under a Facility:

(a)

subject to paragraph (b):

(i)

from (and including) the date of Financial Close to (but excluding) the date of the first Agreed Compliance Certificate (defined below), the following rate:

(A)

Tranche A1, 2.70% per annum;

(B)

Tranche A2, 2.80% per annum; and

(C)

Tranche B, 2.70% per annum;

(ii)

from (and including) the date of the first Agreed Compliance Certificate to (and including) the date falling 3 years after the date of Financial Close, the following rate:


Leverage Ratio	Tranche A1 Margin (per annum)			Tranche A2 Margin (per annum)			Tranche B Margin (per annum)
> 4.5x		3.10	%		3.20	%		3.10	%
> 3.5x and < 4.5x		2.70	%		2.80	%		2.70	%
< 3.5x		2.35	%		2.45	%		2.35	%

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(iii)

from (but excluding) the date falling 3 years after the date of Financial Close to (and including) the date falling 4 years after the date of Financial Close, the following rate:


Leverage Ratio	Tranche A1 Margin (per annum)			Tranche A2 Margin (per annum)			Tranche B Margin (per annum)
> 4.5x		3.30	%		3.40	%		3.30	%
> 3.5x and < 4.5x		2.90	%		3.00	%		2.90	%
< 3.5x		2.55	%		2.65	%		2.55	%

(iv)

from (but excluding) the date falling 4 years after the date of Financial Close to (and including) the Maturity Date, the following rate:


Leverage Ratio	Tranche A1 Margin (per annum)			Tranche A2 Margin (per annum)			Tranche B Margin (per annum)
> 4.5x		3.65	%		3.75	%		3.65	%
> 3.5x and < 4.5x		3.25	%		3.35	%		3.25	%
< 3.5x		2.90	%		3.00	%		2.90	%

(b)

In determining the applicable Margin under sub-paragraphs (a)(ii), (a)(iii) and (a)(iv) above:

(i)

the Leverage Ratio will be as determined from the most recent Compliance Certificate delivered by the Borrower to the Agent and which is accepted by the Agent or otherwise agreed in accordance with this agreement (“ Agreed Compliance Certificate ”); and

(ii)

any change to the applicable Margin for a Loan as a result of a change in the Leverage Ratio (as determined from the most recent Agreed Compliance Certificate) will take effect on the first day of the next Interest Period for that Loan following the date of the most recent Agreed Compliance Certificate.

Marketable Securities means any shares, units or other marketable securities with rights of conversion to shares or units.

Material Adverse Effect means a material adverse effect on:

(a)

the business, operation, property or condition (financial or otherwise) of the Obligors (taken as a whole);

(b)

the ability of the Obligors (taken as a whole) to perform their payment obligations and other material obligations under the Finance Documents; or

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(c)

the legality, validity or enforceability of the whole or any material part of a Finance Document or any material rights or remedies under the Finance Documents.

Material Contract means:

(a)

each Concession Document; and

(b)

the Rail Haulage Agreement.

Maturity Date means, for a Facility, the date set out below:


Facility		Maturity Date
Tranche A1		5 years after the date of Financial Close

Tranche A2		5 years after the date of Financial Close

Tranche B		5 years after the date of Financial Close

MD Affected Lender has the meaning given in clause 12.3 (“Market disruption”).

Minority Investor means any person (other than GWI or its Subsidiaries or an Investor) who, as at the date of this agreement, holds any shares in a Freightliner Entity or any Holding Company of a Freightliner Entity.

Moody’s means Moody’s Investors Services Limited and any successor to the rating agency business of Moody’s Investors Services Limited.

Native Title Law means the Native Title Act 1993 (Cth), the Native Title Act 1994 (ACT), the Native Title Act 1994 (NSW), the Native Title Act 1994 (Qld) and regulations made thereunder.

Net Cash Amount means, on a relevant date:

(a)

the amount of cash and cash equivalents of the GWA Group; less

(b)

the aggregate principal amount of Tranche B Loans that are outstanding,

in each case, on that date. If that amount is a negative number, the Net Cash Amount will be deemed to be zero.

Net Senior Debt means, on any date, the aggregate principal amount of Senior Finance Debt outstanding (excluding Tranche B) less an amount equal to the aggregate of:

(a)

the Net Cash Amount; and

(b)

any mark to market hedge exposure under a Hedge Agreement,

in each case, on that date.

New Lender means:

(a)

each person who becomes a party to this agreement in the capacity as a Lender under clause 26 (“Change in Lender”); and

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(b)

any person who replaces a Lender pursuant to clause 10 (“Replacement or repayment and cancellation in relation to a Lender”) or clause 25.2 (“Consequences of a Review Event”),

and who, in each case, has not ceased to be a Lender in accordance with this agreement.

New Obligor means an entity which is required to become an Obligor under this agreement in accordance with clause 23.6(e) (“Obligor coverage test”) and clause 27.3 (“New Obligors”).

Non Consenting Lender means, in respect of any amendment, variation, waiver or release requested by the Borrower at any time which requires the unanimous consent of all Lenders under this agreement, a Lender that has not consented to the requested amendment, variation, waiver or release in circumstances where the Majority Lenders at that time have so consented. It does not include a RE Non Consenting Lender.

Obligor means:

(a)

each Original Obligor; and

(b)

any Additional Obligor,

and who, in each case, has not ceased to be an Obligor in accordance with this agreement.

Obligor Resignation Deed means a document substantially in the form set out in schedule 9 (“Form of Obligor Resignation Deed”).

Offshore Associate means an Associate:

(a)

which is a non-resident of Australia and does not become a Lender or receive a payment in carrying on a business in Australia at or through a permanent establishment of the Associate in Australia; or

(b)

which is a resident of Australia and which becomes a Lender or receives a payment in carrying on a business in a country outside Australia at or through a permanent establishment of the Associate in that country; and

which does not become a Lender and receive payment in the capacity of a clearing house, custodian, funds manager or responsible entity of a registered scheme.

Operating Expenses means, in respect of any period, the aggregate consolidated operating expenses incurred by the GWA Group (including insurance premia payable by the GWA Group and maintenance capital expenditure, but excluding Growth Capex), determined in accordance with Accounting Principles.

Permitted Acquisition means:

(a)

the Transaction;

(b)

acquisitions of shares, ownership interests, participating interests, securities and other investments in, or capital contributions to, Obligors;

(c)

the acquisition by an Obligor of any remaining shares in the Freightliner Entities which are not, as at the date of this agreement, held by an Obligor;

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(d)

assets (but not shares or ownership interests in a business) acquired in the ordinary course of day to day business that are consistent with or complementary to its Core Business;

(e)

assets, shares, ownership interests or units acquired from another Obligor;

(f)

an acquisition of debt securities for treasury management purposes provided that any debt security must be either cash or a debt security which is rated investment grade or higher as long as such debt security is subject to the Security upon acquisition;

(g)

an acquisition that is a Permitted Joint Venture;

(h)

any acquisition or transaction into which an Obligor is required to enter in order to comply with Native Title Law; or

(i)

an acquisition which has been approved by the board of directors of the applicable Obligor and, if that acquisition is funded by Permitted Financial Indebtedness, that Obligor has provided evidence of such board approval to the Agent and:

(i)

the acquisition is of any business, undertaking or ownership interest in another entity that conducts a business consistent with or complementary to the Core Business;

(ii)

no Event of Default, Review Event, Lock-Up Event or Cash Sweep Event is continuing at the time of the proposed acquisition or would arise by reason of the acquisition and the Borrower provides evidence thereof (in the form of a certificate signed by 2 directors) to the Agent;

(iii)

if the aggregate amount of consideration paid or payable in respect of the acquisition exceeds A$50,000,000, the Borrower has provided the Agent with any due diligence reports or financial modelling prepared or commissioned by the GWA Group in relation to the acquisition (in each case on a non-reliance basis and there being no requirement that the reports or financial modelling are satisfactory to the Lenders); and

(iv)

the aggregate consideration for all acquisitions referred to in this paragraph (i) of this definition until the latest Maturity Date does not exceed A$100,000,000 (or its foreign currency equivalent).

Permitted Disposal means:

(a)

a disposal by one Obligor to another Obligor which has given a Security Interest in favour of the Security Trustee in respect of such assets;

(b)

a disposal at arm’s length on ordinary commercial terms (or better) where an asset is surplus to requirements or it is no longer required for the proper and efficient operation of the Core Business;

(c)

the expenditure of cash in payment for assets and services acquired in the ordinary course of its business carried on in compliance with the terms of the Finance Documents;

(d)

discounting of bills in the ordinary course of business in connection with Permitted Financial Indebtedness;

(e)

realisation of short term investments;

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(f)

a disposal being the grant of any Permitted Security Interest;

(g)

a disposal of plant and equipment in exchange for other plant and equipment of comparable value and utility;

(h)

a payment or distribution of cash or any other asset which is permitted under the Finance Documents (as defined in the Security Trust Deed);

(i)

a disposal of assets required by a Concession Document;

(j)

any of the following provided it is consistent with or complementary to the Core Business:

(i)

a disposal constituted by a licence or sub-licence of intellectual property rights on arm’s length terms; or

(ii)

a disposal constituted by way of a lease or a sub-lease of any real property on arm’s length terms;

(k)

a disposal of any interest in a Permitted Joint Venture;

(l)

any sale, transfer or other disposal of any interest (including by way of the grant of a lease) by GWA pursuant to the Amended and Restated Rail Haulage Agreement between GWA, OneSteel Manufacturing Pty Limited and Arrium Limited dated 17 July 2012;

(m)

prior to GRail becoming an Obligor, any disposal by an Obligor to GRail provided that the asset disposed of will, on the date that GRail becomes an Obligor under this agreement, form part of the Security granted by GRail in favour of the Security Trustee;

(n)

a disposal approved by the Agent (acting on the instructions of the Majority Lenders); or

(o)

any other disposals (not otherwise referred to in this definition) on arm’s length terms where the total consideration for such disposals does not exceed in any Financial Year, in aggregate for all Obligors, A$10,000,000.

Permitted Distribution means any Distribution made in accordance with clause 23.3 (“Distributions”).

Permitted Financial Accommodation means:

(a)

Financial Accommodation provided by an Obligor to another Obligor;

(b)

Financial Accommodation provided to allow its customers to acquire goods and services on extended terms up to a maximum of 180 days in the ordinary course of day to day business;

(c)

Financial Accommodation otherwise permitted under the Finance Documents (including guarantees permitted under clause 23.7(c) (“Guarantees”)) and the making of investments under clauses 23.7(j) (“Acquisitions”) and 23.7(k) (“Joint Ventures”);

(d)

deposits into a bank account held with a Beneficiary or a financial institution providing any transactional banking facilities in the course of operating such facilities or any blocked account under the Finance Documents or otherwise arising under any netting or set-off arrangement entered into by any Obligor in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances of the

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Obligors or otherwise arising under cash pooling or cash management arrangements;

(e)

Financial Accommodation under loans which constitute a Permitted Distribution;

(f)

advance payments made in respect of capital expenditure in the ordinary course of trading; or

(g)

in addition to the exceptions above, where the maximum aggregate Financial Accommodation made available by the Obligors does not exceed A$10,000,000 (or its foreign currency equivalent).

Permitted Financial Indebtedness means:

(a)

Finance Debt of GRail in existence on the date of this agreement (other than Finance Debt which constitutes Permitted Financial Indebtedness under any other paragraph of this definition), provided it is discharged by the end of the day on which Financial Close occurs or will otherwise be discharged within the period allowed for in the Share Sale Agreement;

(b)

the Corporation Loan;

(c)

Finance Debt owed under the Finance Documents (as defined in the Security Trust Deed);

(d)

any Finance Debt (on a pari passu basis with the Lenders) raised by the Borrower to finance an acquisition by an Obligor under paragraph (i) of the definition of Permitted Acquisition provided that such Finance Debt:

(i)

is incurred on terms (other than as to fees and margins) no more favourable to the provider(s) of the Finance Debt than those set out in the Finance Documents;

(ii)

does not mature prior to the date that is 6 months after the latest Maturity Date of any then-existing Term Loan Facilities;

(e)

any trade credit incurred in the ordinary course of trading (including the provision, in the ordinary course of day to day business, of deferred payment terms);

(f)

any indebtedness in respect of guarantees, ancillary facilities or intercompany loans between the Obligors;

(g)

any Refinancing Debt;

(h)

any treasury transactions, interest rate or foreign exchange hedges permitted under a Finance Document (as defined in the Security Trust Deed);

(i)

any Finance Debt arising under any netting or set-off arrangement entered into by any Obligor in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances of the Obligors or otherwise arising under cash pooling or cash management arrangements;

(j)

any Finance Debt arising under any deferred payment arrangements in relation to the cost of acquisition of any asset in the ordinary course of business and which constitutes a Permitted Acquisition;

(k)

any Finance Debt arising under any Permitted Guarantee;

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(l)

any Finance Debt owed by one Obligor to another Obligor;

(m)

any Subordinated Debt;

(n)

the Australian Obligations under (and as defined in) the U.S. Credit Agreement provided that they are discharged in full by no later than the third Business Day after the date of Financial Close;

(o)

any lease of or hire purchase arrangement for rolling stock used in the Core Business;

(p)

any Finance Lease where the aggregate principal or capital amount of those agreements does not exceed A$10,000,000 (or its foreign currency equivalent) in aggregate at any time for the Obligors;

(q)

Finance Debt of any person that becomes an Obligor after Financial Close (other than GRail) as a result of a Permitted Acquisition, but only Finance Debt existing at the time of the Permitted Acquisition and which was not incurred in contemplation thereof and which is fully discharged within 120 days of the date of completion of the Permitted Acquisition;

(r)

any indebtedness incurred by an Obligor with an insurance broker in relation to the funding of insurance premia where the aggregate amount incurred in any 12 month period does not exceed A$10,000,000;

(s)

any indebtedness (not otherwise referred to in this definition) where the total amount outstanding does not exceed A$10,000,000 in aggregate for the Obligors; or

(t)

other indebtedness incurred with the prior written consent of the Agent.

Permitted Guarantee means:

(a)

any guarantee under the Finance Documents;

(b)

any unsecured guarantee to support the obligations (other than Finance Debt) of an Obligor provided that such obligations are permitted under the Finance Documents;

(c)

a class order guarantee in accordance with the Corporations Act where the only members of the class order are the Obligors or a class order guarantee to which GRail is subject and from which GRail is released in accordance with the Share Sale Agreement;

(d)

any guarantee in connection with Permitted Financial Indebtedness;

(e)

any unsecured guarantee by an Obligor under any commercial contract entered into in the ordinary course of trading and/or any performance or similar bond guaranteeing performance by an Obligor under any contract entered into in the ordinary course of trading;

(f)

the guarantee and indemnity between GWA (as guarantor) and AARC dated 19 November 2010;

(g)

any guarantee which an Obligor is required to provide in favour of AARC as a condition of AARC granting its consent to GWA (North) becoming an obligor under, and providing a guarantee and indemnity pursuant to, the Security Trust Deed; or

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(h)

any guarantee in connection with an operating lease entered into by an Obligor as permitted by the Finance Documents, including a lease of real property.

Permitted Joint Venture means any interest in a Joint Venture by an Obligor which satisfies the following conditions:

(a)

the business of the Joint Venture is consistent with the Core Business, or is acquired for the purpose of developing and operating all or part of the Core Business; and

(b)

no Default or Review Event is continuing or would result from the investment in or acquisition of the Joint Venture,

provided in each case under this definition, the aggregate of:

(c)

the investments under this definition (by way of initial contribution, cash or otherwise) at any time in, or consideration for the acquisition of an interest in, a Joint Venture; and

(d)

the market value of any assets transferred by any Obligor to any such Joint Venture (net of the market value of any assets transferred from such Joint Venture to an Obligor), in each case since Financial Close,

does not exceed A$50,000,000 (or its foreign currency equivalent) per Joint Venture or A$100,000,000 (or its foreign currency equivalent) in aggregate for all Joint Venture investments over the term of the Facilities without the Agent’s prior written consent.

The thresholds referred to in this definition will not include investments in any Joint Venture which subsequently becomes wholly-owned by an Obligor and constitutes part of the Security granted by that Obligor in favour of the Security Trustee.

Permitted Security Interest means:

(a)

any Security Interest existing at the time of acquisition of any asset acquired by an Obligor after the date of this agreement and not created in contemplation of the acquisition provided that there is no increase in the amount of the principal moneys secured by that Security Interest and that Security Interest is released within 120 days after the date of the acquisition of that asset;

(b)

bankers’ liens, rights of set-off or other netting arrangements arising in respect of any Permitted Financial Indebtedness;

(c)

a lien or charge arising by operation of law in the ordinary course of business;

(d)

a retention of title arrangement in connection with the acquisition of goods in the ordinary course of business (which terms must require payment within 90 days);

(e)

any Security Interest over cash deposits made in favour of landlords to secure performance under leases with that landlord where required under the terms of the lease;

(f)

any Security Interest granted by an Obligor to another Obligor or (prior to the date it becomes an Obligor under this agreement) GRail;

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(g)

any Security Interest granted under or pursuant to the GWA (North) Security Documents, Debt Financiers Security or the Debt Financiers Tripartite Deed (2010) and in existence on the date of this agreement;

(h)

any lien for:

(i)

rates, Taxes, duties or fees of any kind payable to a Government Agency; or

(ii)

money payable for work performed by suppliers, mechanics, workmen, repairmen or employees and, in each case, arising in the ordinary course of business,

either not yet due or being contested in good faith by the Obligors;

(i)

any Security Interest created under a Security and any Security Interest constituted by any cash cover provided under the Finance Documents (as defined in the Security Trust Deed);

(j)

a turnover trust under a subordination arrangement approved by the Agent;

(k)

any cash collateral provided to secure an indemnity obligation in respect of a bank guarantee or letter of credit the principal amount of which would be Permitted Financial Indebtedness;

(l)

a Security Interest provided by one of the following transactions if the transaction does not secure payment or performance of an obligation:

(i)

a transfer of an account or chattel paper;

(ii)

a commercial consignment; or

(iii)

a PPS Lease which is not a capital lease,

where the terms “account”, “chattel paper”, “commercial consignment” and “PPS Lease” have the respective meanings given in the PPSA;

(m)

any Security Interest which secures the Australian Obligations under (and as defined in) the U.S. Credit Agreement provided that such Security Interests are released by no later than the third Business Day after the date of Financial Close;

(n)

any Security Interests granted by GWA (North) in favour of AARC under the deed entitled “Corporation’s Deed of Charge” dated 19 November 2010;

(o)

any Security Interests granted pursuant to the document entitled “Deed of Agreement to Lease and Charge” between GWA, SA Rail Pty Limited and the Minister for Transport and Urban Planning dated 7 November 1997;

(p)

any Security Interest existing under a lease or hire purchase arrangement in connection with the Core Business;

(q)

any cross charge granted by an Obligor in relation to, and over the assets of, a Permitted Joint Venture securing obligations to contribute to that Permitted Joint Venture or to repay the other joint venturers who contribute to the Permitted Joint Venture in circumstances where the Obligor has failed to do so;

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(r)

any Security Interest granted by Freightliner Australia Coal Haulage Pty Limited in favour of Glencore Australia Oil Pty Limited (ACN 605 939 080) pursuant to the Fuel Supply Agreement (or any replacement agreement between GRail (or its Representative) and a Glencore Entity for the supply of fuel to GRail (or its Representative) for use in providing the Services (where “Representative”, “Glencore Entity”, “Services” and “Fuel Supply Agreement” each have the meaning given in the Rail Haulage Agreement);

(s)

any Security Interest granted by GWA in favour of the Minister for Transport for South Australia pursuant to an SA Ground Lease;

(t)

any Security Interest granted in respect of Finance Debt raised to finance an acquisition under paragraph (i) of the definition of Permitted Acquisition;

(u)

any Security Interest created or granted with the prior written consent of the Agent; or

(v)

any other Security Interest securing Finance Debt (other than Refinancing Debt) the principal amount of which (when aggregated with the principal amount of any other Finance Debt which has the benefit of a Security Interest other than any permitted under paragraphs (a) to (u) above) does not exceed A$10,000,000 or, other than where mandatorily preferred by law, rank in priority to the Secured Money.

Potential Event of Default means any event or circumstance which would (with the lapse of time, the giving of notice, the making of any determination under the Finance Documents, the fulfilment of any condition or any combination of any of the foregoing) be an Event of Default.

PPSA means the Personal Property Securities Act 2009 (Cth).

Prime Bank means a bank determined by the Australian Finance Markets Association (or any other person which takes over the administration of the Screen Rate for Australian dollars) as being a Prime Bank or an acceptor or issuer of bills of exchange or negotiable certificates of deposit for the purposes of calculating that Screen Rate. If the Australian Financial Markets Association or such other person ceases to make such determination, the Prime Banks shall be the Prime Banks last so appointed.

Qualifying Transferee means, in the case of the replacement of a Lender by the Borrower in accordance with clause 10 (“Replacement or repayment and cancellation in relation to a Lender”) or clause 25.2(c) (“Consequences of a Review Event”):

(a)

another existing Lender or any Affiliate of an existing Lender so long as that Affiliate is not a Distressed Debt Fund; or

(b)

another bank or financial institution which has a credit rating of at least BBB+ (S&P) or Baa1 (Moody’s) or is guaranteed by an entity which has that credit rating.

Quarter means each period of 3 months ending on 31 March, 30 June, 30 September and 31 December.

Quotation Day means, in relation to any period for which an interest rate is to be determined, the first day of that period.

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Rail Haulage Agreement means the agreement entitled “Rail Haulage Agreement” between GRail, Glencore Coal and Glencore plc (as Glencore Guarantor) entered into on or about the date of this agreement.

RE Non Consenting Lender has the meaning given in clause 25.2(b) (“Consequences of a Review Event”).

RE Repayment Period means:

(a)

in relation to a Change of Control Review Event, the period ending 90 days after the end of the Stand Still Period; or

(b)

in relation to a RHA Review Event, the period ending 6 months after the date that the Rail Haulage Agreement is terminated.

RE Transfer Period means:

(a)

in relation to a Change of Control Review Event, the period ending 90 days after the end of the Stand Still Period; or

(b)

in relation to a RHA Review Event, the period ending 6 months after the date that the Rail Haulage Agreement is terminated.

Reference Bank Rate means, in relation to BBSY Bid, the sum of:

(a)

the following rates (rounded up to the nearest fourth decimal place):

(i)

the rate representing the view (if any and applied to the relevant period) which respondents to the NCDSURVEY10AM survey conducted by the Australian Financial Markets Association (or any other person which takes over the conduct of that survey) are asked to submit to the relevant conductor of the survey; or

(ii)

(if the rate referred to in sub-paragraph (i) is not available), the arithmetic mean of the rates (rounded up to the nearest fourth decimal place) as supplied to the Agent at its request by the Reference Banks as the mid discount rate (expressed as a yield percent to maturity) observed by the relevant Reference Bank for marketable parcels of Australian dollar denominated bank accepted bills and negotiable certificates of deposit accepted or issued by Prime Banks, and which mature on the last day of the relevant period or in the same half month period under market conventions; or

(iii)

(if the rate referred to in sub-paragraph (i) is not available and there is no observable market rate for marketable parcels of Prime Bank Australian dollar securities referred to in sub-paragraph (ii) above), the arithmetic mean of the rates (rounded up to the nearest fourth decimal place) as supplied to the Agent at its request by the Reference Banks as the rate at which the relevant Reference Bank could borrow funds in Australian dollars in the Australian interbank market and for the relevant period were it to do so by asking for and then accepting interbank offers for deposits in reasonable market sizes and for that period; and

(b)

0.05% per annum.

Reference Banks means Commonwealth Bank of Australia, National Australia Bank Limited, Australia and New Zealand Banking Group Limited and Westpac

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Banking Corporation or any other leading banks in the Australian bank bill market as may be appointed by the Agent in consultation with the Borrower.

Refinancing Debt means new financial accommodation incurred by the Borrower upon a refinancing (in whole or in part) of any existing financial accommodation provided to the Borrower where (except in the case of a full refinancing of the Facilities) the principal amount of the financial accommodation to be incurred by the Borrower is no greater in aggregate than the level of financial accommodation provided to the Borrower immediately prior to the refinancing (excluding any fees, costs, expenses (including break fees and swap close-out costs, to the extent applicable) in connection with that refinancing) and which is incurred in accordance with clause 23.8 (“Refinancing Debt”).

Related Body Corporate has the meaning given in the Corporations Act.

Relevant Market means the Australian interbank market for bank accepted bills and negotiable certificates of deposits.

Renewal Request means, in respect of a Letter of Credit, a written notice delivered to the Agent (copied to the relevant Issuing Bank) in accordance with clause 6.6 (“Renewal of a Letter of Credit”).

Repeating Representations means each representation and warranty given by the Borrower under clause 22.1 (“Representations and warranties”) (other than the representations and warranties under clauses 22.1(n) (“Conduct of business”), 22.1(t)(i) (“Group Structure Diagram”), 22.1(u) (“No reliance”) and 22.1(v) (“No failure to disclose”)).

Resolution Authority means any body which has authority to exercise any Write-down and Conversion Powers.

Review Event means:

(a)

a Change of Control Review Event; or

(b)

a RHA Review Event.

RHA Prepayment Amount means:

(a)

(where the Rail Haulage Agreement is terminated) the amount (if any and not exceeding the RHA Termination Payment that is received by GRail upon termination of the Rail Haulage Agreement) that, at the time the Rail Haulage Agreement is terminated is the higher of:

(i)

the amount which would be required to be applied by the Borrower in mandatory prepayment of the Term Loan Facilities in accordance with clause 9.2 (“Application of Mandatory Prepayments”) in order to ensure that, on a pro-forma basis following termination of the Rail Haulage Agreement, the DSCR and the Leverage Ratio are each at the same level as shown in the most recent Compliance Certificate delivered to the Agent prior to the termination of the Rail Haulage Agreement; and

(ii)

the amount which would be required to be applied by the Borrower in mandatory prepayment of the Term Loan Facilities in accordance with clause 9.2 (“Application of Mandatory Prepayments”) in order to ensure that, on a pro-forma basis following termination of the Rail Haulage Agreement (and excluding any portion of the RHA Termination Payment not applied in mandatory prepayment), the Leverage Ratio is less than or equal to 2.50:1; or

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(b)

(where Glencore Coal terminates the Services (in whole or part) in respect of NTK affected by GRail FM under clause 35.3 (“Partial termination for GRail FM”) of the Rail Haulage Agreement), the amount (if any and not exceeding the aggregate RHA Termination Payment received by GRail pursuant to the Rail Haulage Agreement at that time in connection with the termination of Services) which would be required to be applied by the Borrower in mandatory prepayment of the Term Loan Facilities in accordance with clause 9.2 (“Application of Mandatory Prepayments”) in order to ensure that, on the basis of the aggregate reduction at that time in TOP NTK (Annual) for each of the remaining Contract Years of the RHA Term as a result of Glencore Coal terminating the Services from time to time, the Leverage Ratio (on a pro-forma basis and excluding any portion of the RHA Termination Payment not applied in mandatory prepayment) is as set out in the table below:


Aggregate reduction in TOP NTK (Annual) for each of the remaining Contract Years of the Term		Leverage Ratio
10-19%		Less than or equal to 3.85:1
20-29%		Less than or equal to 3.70:1
30-39%		Less than or equal to 3.55:1
40-49%		Less than or equal to 3.40:1
50-59%		Less than or equal to 3.25:1
60-69%		Less than or equal to 3.10:1
70-79%		Less than or equal to 2.95:1
80-89%		Less than or equal to 2.80:1
90-99%		Less than or equal to 2.65:1
100%		Less than or equal to 2.50:1

Defined terms used in this paragraph (b) not otherwise defined in this document have the meaning given in the Rail Haulage Agreement.

RHA Review Event has the meaning given in clause 25.1 (“Review Event”).

RHA Termination Payment means a Termination Payment payable pursuant to (and calculated in accordance with) clause 35.4 (“Termination Payment”) of the Rail Haulage Agreement.

RHA Term has the meaning given to “Term” in the Rail Haulage Agreement.

Rollover Loan means one or more Loans under Tranche B:

(a)

that is made or is to be made on the same day that an existing Loan under Tranche B matures;

(b)

the aggregate amount of which is equal to or less than the maturing Loan; and

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(c)

that is made or is to be made to the Borrower for the purpose of refinancing that maturing Loan under Tranche B.

SA Ground Lease means:

(a)

the Memorandum of Lease between the Minister for Transport for the State of South Australia and GWA dated 3 August 2007; and

(b)

the Memorandum of Lease between the Minister for Transport and Infrastructure for the State of South Australia and GWA dated 24 November 2011.

Screen Rate means, in relation to BBSY Bid:

(a)

the Australian Bank Bill Swap Reference Rate (Bid) administered by the Australian Financial Markets Association (or any other person which takes over the administration of that rate) for the relevant period displayed on page BBSY of the Thomson Reuters Screen (or any replacement Thomson Reuters page which displays that rate). If such page or service ceases to be available, the Agent may specify another page or service displaying the relevant rate after consultation with the Borrower; or

(b)

if the rate described in sub-paragraph (a) above is not available, the sum of:

(i)

the Australian Bank Bill Swap Reference Rate administered by the Australian Financial Markets Association (or any other person which takes over the administration of that rate) for the relevant period displayed on page BBSW of the Thomson Reuters Screen (or any replacement Thomson Reuters page which displays that rate). If such page or service ceases to be available, the Agent may specify another page or service displaying the relevant rate after consultation with the Borrower; and

(ii)

0.05% per annum.

Security Trust Deed means the deed entitled “Security Trust Deed – Project Monty” dated on or about the date of this agreement between, among others, the Original Obligors named therein, the Lenders, the Agent and the Security Trustee.

Security Trustee means National Australia Bank Limited (ABN 12 004 044 937) or such other entity which is the Security Trustee under the Security Trust Deed from time to time.

Senior Finance Debt means all debts and monetary liabilities of the Obligors that constitute Finance Debt under the Finance Documents (as defined in the Security Trust Deed) but excluding Subordinated Debt and any contingent exposures under all bank guarantees, letters of credit, performance bonds and like instruments on issue to third parties.

Share Sale Agreement means the share sale agreement between the Vendor (as seller) and the Borrower (as purchaser) in respect of the shares in GRail, dated 20 October 2016.

Specified Time means 10.30am (Sydney time) on the first day of a relevant Interest Period.

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Stand Still Period has the meaning given in clause 25.2(a) (“Consequences of a Review Event”).

Subordinated Debt means financial accommodation (including shareholder and intercompany loans and unsecured third party financial accommodation) provided to an Obligor, payment of which is subordinated to the Secured Money on the terms of a Subordination Agreement and which must not mature prior to the final Maturity Date. In respect of any Subordinated Debt provided by an Obligor to another Obligor (and whose rights in relation to the Subordinated Debt are secured in favour of the Security Trustee), the provider of that Subordinated Debt will not be required to execute a Subordination Agreement.

Subsidiary of an entity means another entity which:

(a)

is a subsidiary of the first entity within the meaning of the Corporations Act; or

(b)

is part of the consolidated entity constituted by the first entity and the entities it is required to include in the consolidated financial statements it prepares, or would be if the first entity was required to prepare consolidated financial statements.

A trust or partnership may be a subsidiary (and an entity may be a subsidiary of a trust or partnership) if it would have been a subsidiary under this definition if that trust or partnership were a corporation. For these purposes, a unit or other beneficial interest in a trust or a partnership interest (as applicable) is to be regarded as a share.

S&P means Standard & Poor’s Rating Services and any successor to the rating agency business of Standard & Poor’s Rating Services.

Tax Act means the Income Tax Assessment Act 1936 (Cth) or the Income Tax Assessment Act 1997 (Cth), as the context requires.

Tax Consolidated Group means a Consolidated Group or an MEC Group as defined in the Tax Act.

Tax Deduction means a deduction or withholding for or on account of Tax from a payment under a Finance Document.

Tax Funding Arrangement means any tax funding arrangement to which each member of the Tax Consolidated Group is a party and which includes:

(a)

reasonably appropriate arrangements for the funding of tax payments having regard to the position of each member of the Tax Consolidated Group;

(b)

an undertaking from the Head Company to compensate each member of the Tax Consolidated Group adequately for loss of tax attributes (including tax losses and tax offsets) as a result of being a member of the Tax Consolidated Group; and

(c)

an undertaking from the Head Company to pay all group liabilities (as described in section 721-10 of the Tax Act) of the Tax Consolidated Group as agreed.

Tax Sharing Arrangement means any arrangement, agreement or deed that satisfies the requirements of section 721-25 of the Tax Act for being a valid tax sharing arrangement.

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Taxes means taxes, levies, imposts, charges and duties (including stamp and transaction duties) imposed by any authority together with any related interest, penalties, fines and expenses in connection with them.

Term means each period determined under this agreement for which an Issuing Bank is under a liability under a Letter of Credit.

Term Loan Facility means:

(a)

Tranche A1; or

(b)

Tranche A2,

and Term Loan Facilities means both of them.

Total Commitments means the aggregate of:

(a)

the Total Tranche A1 Commitments;

(b)

the Total Tranche A2 Commitments; and

(c)

the Total Tranche B Commitments,

being $740,000,000 as at the date of this agreement.

Total Tranche A1 Commitments means the aggregate of the Tranche A1 Commitments, being A$130,000,000 as at the date of this agreement.

Total Tranche A2 Commitments means the aggregate of the Tranche A2 Commitments, being A$560,000,000 as at the date of this agreement.

Total Tranche B Commitments means the aggregate of the Tranche B Commitments, being A$50,000,000 as at the date of this agreement.

Tranche A1 means the term loan facility made available under this agreement as described in clause 2.1(a) (“Lenders to provide financial accommodation”).

Tranche A1 Commitment means:

(a)

in relation to an Original Lender, the amount in the Base Currency set out opposite its name under the heading “Tranche A1 Commitment” in Part B of schedule 2 (“Original Lenders and MLAs”) and the amount of any other Tranche A1 Commitment transferred to it under this agreement; and

(b)

in relation to any other Lender, the amount in the Base Currency of any Tranche A1 Commitment transferred to it under this agreement,

to the extent not cancelled, reduced or transferred by it under this agreement.

Tranche A1 Loan means the loan made or to be made under Tranche A1 or the principal amount outstanding for the time being of that loan.

Tranche A1 Repayment Date means each date set out in schedule 7 (“Tranche A1 Repayment Schedule”).

Tranche A1 Repayment Instalment means the principal amount set out opposite each Tranche A1 Repayment Date in schedule 7 (“Tranche A1 Repayment Schedule”).

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Tranche A2 means the term loan facility made available under this agreement as described in clause 2.1(b) (“Lenders to provide financial accommodation”).

Tranche A2 Commitment means:

(a)

in relation to an Original Lender, the amount in the Base Currency set out opposite its name under the heading “Tranche A2 Commitment” in Part B of schedule 2 (“Original Lenders and MLAs”) and the amount of any other Tranche A2 Commitment transferred to it under this agreement; and

(b)

in relation to any other Lender, the amount in the Base Currency of any Tranche A2 Commitment transferred to it under this agreement,

to the extent not cancelled, reduced or transferred by it under this agreement.

Tranche A2 Loan means the loan made or to be made under Tranche A2 or the principal amount outstanding for the time being of that loan.

Tranche B means the revolving working capital loan facility made available under this agreement as described in clause 2.1(c) (“Lenders to provide financial accommodation”).

Tranche B Commitment means:

(a)

in relation to an Original Lender, the amount in the Base Currency set out opposite its name under the heading “Tranche B Commitment” in Part B of schedule 2 (“Original Lenders and MLAs”) and the amount of any other Tranche B Commitment transferred to it under this agreement; and

(b)

in relation to any other Lender, the amount in the Base Currency of any Tranche B Commitment transferred to it under this agreement,

to the extent not cancelled, reduced or transferred by it under this agreement.

Tranche B Loan means a loan made or to be made under Tranche B or the principal amount outstanding for the time being of that loan. For the avoidance of doubt, it does not refer to a Letter of Credit issued under Tranche B.

Transaction means the acquisition by the Borrower of the shares in GRail pursuant to the Share Sale Agreement.

Transaction Document means:

(a)

the Share Sale Agreement;

(b)

the Rail Haulage Agreement; and

(c)

each Finance Document.

Transfer Certificate means a certificate substantially in the form set out in schedule 5 (“Form of Transfer Certificate”) or any other form agreed between the Agent and the Borrower.

Transfer Date means, in relation to an assignment or transfer, the later of:

(a)

the proposed Transfer Date specified in the relevant assignment instrument or Transfer Certificate; and

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(b)

the date on which the Agent executes the relevant assignment instrument or Transfer Certificate.

Tripartite Agreement means:

(a)

the Financier Consent Deed;

(b)

any tripartite agreement which is entered into by a Finance Party with a New Mine Owner (as defined in the Rail Haulage Agreement) in connection with an assignment by Glencore Coal to a New Mine Owner in accordance with clause 27.3 (“Assignment to New Mine Owner”) of the Rail Haulage Agreement; and

(c)

any tripartite agreement entered into in respect of a replacement of the Rail Haulage Agreement in accordance with clause 25.4(d) (“RHA Review Event criteria”).

Unpaid Sum means any sum due and payable but unpaid by an Obligor to a Finance Party under a Finance Document.

U.S. Credit Agreement means the document entitled “Second Amended and Restated Senior Secured Syndicated Facility Agreement” dated 20 March 2015 between, inter alia, GWI, GWA and Bank of America, N.A. (as amended from time to time).

U.S. GAAP means principles that are:

(a)

consistent with the principles promulgated or adopted by the Financial Accounting Standards Board and its predecessors, as in effect from time to time and consistently applied with past financial statements of the GWA Group adopting the same principles; or

(b)

generally accepted accounting principles in GWI’s jurisdiction of incorporation.

Utilisation means a utilisation of a Facility by way of the advance of a Loan or the issuance of a Letter of Credit.

Utilisation Date means the date of a Utilisation, being the date on which the relevant Loan is to be made or a Letter of Credit is to be issued (as applicable).

Utilisation Notice means a notice in the form set out in, and completed in accordance with, Part A or Part B of schedule 3 (“Utilisation Notice”), as applicable.

Vendor means Glencore Coal.

Verification Certificate means a certificate substantially in the form set out in schedule 12 (“Form of Verification Certificate”).

Wilful Default means, in relation to a Finance Party, a wilful and intentional failure of the Finance Party to comply with any of its obligations under the Finance Documents other than a failure which:

(a)

arises as a result of a failure by a person other than the Finance Party to comply with a Finance Document or as a result of a Default or a Review Event;

(b)

arises due to a lack of proper or complete instructions or directions being given to the Finance Party under and in accordance with this agreement; or

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(c)

is in accordance with a court order or direction or otherwise required by law.

Write-down and Conversion Powers means in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule.

Year 5 Mandatory Prepayment Amount means any amount required to be applied in prepayment of Tranche A2 pursuant to clause 9.4 (“Year 5 Mandatory Prepayment”).

1.2

Interpretation

Unless a contrary indication appears, any reference in this agreement to:

(a)

the “Agent”, any “Finance Party”, any “Lender” (including any “Issuing Bank”), or any “Obligor” shall be construed so as to include its executors, administrators, successors, substitutes (including by novation) and assigns to, or of, its rights and/or obligations under the Finance Documents;

(b)

a document, agreement, deed or other instrument shall be construed as a reference to that document, agreement, deed or instrument as amended, novated, supplemented, extended or replaced from time to time;

(c)

“assets” or “property” includes present and future properties, revenues and rights of every description;

(d)

“indebtedness” or “debt” includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;

(e)

a “person” or “entity” includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership or other entity (whether or not having separate legal personality) or two or more of them and any reference to a particular person or entity (as so defined) includes a reference to that person’s or entity’s executors, administrators, successors, substitutes (including by novation) and assigns;

(f)

the word “law” includes common law, principles of equity, and laws made by parliament (and laws made by parliament include State, Territory and Commonwealth laws and regulations and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them);

(g)

a “regulation” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation and if not having the force of law, with which responsible entities in the position of the relevant party would normally comply;

(h)

a time of day is a reference to Sydney time;

(i)

the words “including”, “for example” or “such as” when introducing an example do not limit the meaning of the words to which the example relates to that example or examples of a similar kind;

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(j)

an amount borrowed includes any amount utilised by way of the issuance (including the renewal or replacement) of a Letter of Credit;

(k)

amounts outstanding under this agreement include amounts actually or contingently owing or outstanding under or in respect of any Letter of Credit;

(l)

section, clause and schedule headings are for ease of reference only (including those in brackets at the beginning of paragraphs) and any summary in the Details are for convenience only and do not affect the interpretation of the relevant Finance Document;

(m)

a reference to a “month” is a reference to a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month;

(n)

the Borrower providing “cash cover” for a Letter of Credit means the Borrower paying an amount to an Issuing Bank of such Letter of Credit who must apply the amount in accordance with clause 24.5 (“LC cash cover”);

(o)

a Default, Review Event or a Certain Funds Event is “continuing” or “subsisting” until it is waived by the Agent or remedied to the satisfaction of the Agent or (in the case of a Review Event) the relevant steps in clause 25.2 (“Consequences of a Review Event”) have been taken;

(p)

the Borrower “repaying” or “prepaying” a Letter of Credit in relation to an Issuing Bank means:

(i)

the Borrower providing cash cover for that Letter of Credit;

(ii)

the Borrower making a payment under clause 7.1 (“Claims under a Letter of Credit”) in respect of the Letter of Credit or reimbursing an amount paid by the Issuing Bank under the Letter of Credit under clause 7.2 (“Indemnities”);

(iii)

the maximum amount payable under the Letter of Credit being reduced or cancelled in accordance with its terms;

(iv)

the Letter of Credit being returned to the Issuing Bank;

(v)

the Issuing Bank being satisfied that it has no further liability under that Letter of Credit; or

(vi)

if the Issuing Bank has given its prior consent, providing a back-to-back letter of credit, bank guarantee or similar from a bank which, along with the terms (including fees and identity of the issuer) of such letter of credit, bank guarantee or similar instrument, must be acceptable to the Issuing Bank in its absolute discretion;

and the amount by which a Letter of Credit is repaid or prepaid under sub-paragraphs (i), (ii), (iii) or (vi) above is the amount of the relevant cash cover, payment, reimbursement, reduction or cancellation. When under this agreement the Borrower is obliged to repay or prepay a Letter of Credit, it must:

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(A)

provide cash cover for the outstanding amount of the Letter of Credit (less the total amount paid by the Issuing Bank under the Letter of Credit); and

(B)

pay under clause 7.1 (“Claims under a Letter of Credit”) or clause 7.2 (“Indemnities”) an amount equal to the total amount paid by the Issuing Bank under the Letter of Credit,

except to the extent that the amount of the Letter of Credit has been repaid or prepaid by another means;

(q)

an outstanding amount of a Letter of Credit at any time is the maximum amount that is or may be payable by the Borrower in respect of that Letter of Credit at that time;

(r)

the Borrower’s obligation on Utilisations becoming “due and payable” includes the Borrower repaying any Letter of Credit in accordance with clause 1.2(p);

(s)

a person “controls” another person if that first person has control within the meaning given in the Corporations Act;

(t)

“A$”, “$” “AUD” and “Australian dollars” are to the lawful currency of the Commonwealth of Australia; and

(u)

the “US”, “U.S.” or “United States” is to the United States of America.

1.3

Incorporation of defined terms

Terms defined in the Security Trust Deed have the same meaning when used in this agreement (unless otherwise defined herein, in which case the definition in this agreement applies for the purposes of this agreement).

1.4

Security Trust Deed

To the extent of any inconsistency, the terms of the Security Trust Deed will prevail over the terms of this agreement.

1.5

Obligations of Lenders to act reasonably

Unless the contrary intention appears in this agreement, if the Agent consults the Lenders to seek instructions in connection with a matter in respect of which the Agent is required under this agreement to act reasonably or not to unreasonably withhold or delay consent or approval, each Lender must act in the same manner in giving instructions. If the Agent receives such instructions, it may rely on them and it has no duty to consider whether a Lender has acted reasonably.

Part 2 The Facilities

2	The Facilities

2.1

Lenders to provide financial accommodation

Subject to the terms of this agreement, the Lenders agree to make available to the Borrower:

(a)

an Australian dollar term loan facility in an aggregate amount equal to the Total Tranche A1 Commitments;

(b)

an Australian dollar term loan facility in an aggregate amount equal to the Total Tranche A2 Commitments; and

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(c)

an Australian dollar revolving loan facility in an aggregate amount equal to the Total Tranche B Commitments.

2.2

Finance Party’s rights and obligations

(a)

The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.

(b)

The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance party include any debt owing to that Finance Party under the Finance Documents and for the avoidance of doubt, any part of a Loan or any other amount owed by an Obligor which relates to a Finance Party’s participation in a Facility or its role under a Finance Document (including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that Obligor.

(c)

A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.

3	Purpose

3.1

Purpose

(a)

The Borrower may apply all amounts borrowed by it under Tranche A1 and Tranche A2 towards:

(i)

funding the purchase price under the Share Sale Agreement;

(ii)

discharging in full the Australian Obligations under (and as defined in) the U.S. Credit Agreement; and

(iii)

the payment of any fees and Costs incurred in connection with the Transaction or the Facilities as shown in the Funds Flow Statement.

(b)

The Borrower must apply all amounts borrowed by it under Tranche B towards general working capital and general corporate purposes, including the issue of any Letters of Credit (but not for the purposes of paying Interest Expense or making scheduled amortisation payments under any Facility or paying Distributions).

3.2

No obligation to monitor

No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this agreement.

4	Using the Facilities

4.1

Conditions to first Utilisation

Subject to clause 4.3 (“Drawdown during the Certain Funds Period”), the Lenders need not provide the first Utilisation until each of the Initial Conditions Precedent have been provided by the Borrower to the Agent (in form and substance satisfactory to all the Original Lenders) or the requirement to provide any such

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Initial Conditions Precedent has been waived by the Agent (acting on the instructions of all the Original Lenders).

4.2

Conditions to all Utilisations

Subject to clause 4.3 (“Drawdown during the Certain Funds Period”), a Lender need not provide its proportion of any requested Loan or issue any Letter of Credit unless:

(a)

the proposed Utilisation Date is a Business Day within the applicable Availability Period;

(b)

the Lender’s Available Commitment for the Facility would not be exceeded as a result of providing its participation in the Loan or issuing the Letter of Credit;

(c)

the Agent has received a duly completed Utilisation Notice in respect of the requested Utilisation;

(d)

all statements in the Utilisation Notice and the Repeating Representations are true in all material respects at the date of the Utilisation Notice and at the Utilisation Date by reference to the then current circumstances;

(e)

in the case of a Rollover Loan or the renewal of a Letter of Credit in accordance with clause 6.6 (“Renewal of a Letter of Credit”) (as applicable), no Event of Default is continuing or would result from the proposed Utilisation and, in the case of any other Utilisation, no Default or Review Event is continuing or would result from the proposed Utilisation; and

(f)

the relevant conditions in clause 5 (“Utilisation – Loans”) or clause 6 (“Utilisation – Letters of Credit”) (as applicable) have been met.

Each condition under this clause 4.2 is for the benefit of each Lender severally providing the requested Utilisation and may be waived by the Agent only on the instructions of all the Lenders providing the requested Utilisation.

4.3

Drawdown during the Certain Funds Period

To provide certainty that the Borrower will be able to meet its obligations to the Vendor under the Share Sale Agreement and to ensure that there are sufficient funds available to achieve Completion of the Transaction, the Original Lenders agree that during the Certain Funds Period, no Original Lender (while it is a Lender) may:

(a)

refuse to make a loan under Tranche A1 or Tranche A2;

(b)

cancel any commitment under Tranche A1 or Tranche A2;

(c)

refuse to execute any interest rate hedging required in accordance with the Finance Documents in a notional amount up to its commitment to provide such hedging pursuant to the Mandate, Commitment and Fee Letter;

(d)

exercise any right of rescission or similar right or remedy or accelerate repayment of a loan;

(e)

take (or instruct the Security Trustee to take) enforcement action under any Security;

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(f)

refuse to issue a Letter of Credit under Tranche B at the request of the Borrower where it is required to be issued in order to replace any existing letter of credit, bank guarantee or other instrument issued on behalf of an Obligor to a relevant beneficiary prior to Financial Close; or

(g)

exercise any right of set off (other than any hedge netting),

unless there is a Certain Funds Event continuing.

At the end of the Certain Funds Period, all rights, remedies and entitlements under the Finance Documents shall be available to the Original Lenders notwithstanding that they could not be exercised during the Certain Funds Period.

4.4

Number of Utilisations

The Borrower need not use any Facility. If the Borrower wishes to use:

(a)

Tranche A1, it may do so by a single Utilisation only;

(b)

Tranche A2, it may do so by a single Utilisation only; and

(c)

Tranche B, it may do so by one or more Utilisations. However, other than with the Agent’s prior consent and subject to clause 11.4 (“Consolidation of Loans), no more than 10 Tranche B Loans may be outstanding at any time.

5	Utilisations – Loans

5.1

Requesting a Utilisation – Loans

(a)

If the Borrower requires a Loan, it agrees to give a Utilisation Notice to the Agent by 11.00 am (Sydney time) on the second Business Day before the day it requires the Loan (or any other time agreed by the Agent (acting on the instructions of all the Lenders participating in that Loan)).

(b)

A Utilisation Notice is effective when the Agent actually receives it in legible form. An effective Utilisation Notice is irrevocable.

5.2

Completing a Utilisation Notice – Loans

Each Utilisation Notice for a Loan is irrevocable and will not be regarded as having been duly completed unless:

(a)

it identifies the Facility to be utilised;

(b)

the currency and amount of the proposed Loan comply with clause 5.3 (“Currency and amount”);

(c)

the proposed Interest Period complies with clause 11.2(b) (“Notification of Interest Periods”); and

(d)

the applicable conditions in clause 4.2 (“Conditions to all Utilisations”) have been met.

Only one Loan may be requested in each Utilisation Notice (except that the Tranche A1 Loan and the Tranche A2 Loan may be requested in the same Utilisation Notice).

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5.3

Currency and amount

(a)

The currency specified in a Utilisation Notice must be the Base Currency.

(b)

The amount of the proposed Loan must not be an amount which is more than the Available Facility at that time and, in respect of Tranche B, must be a minimum amount of $1,000,000 (or if less, the Available Facility).

5.4

Lenders’ participation

(a)

If the conditions set out in this agreement have been met, and subject to clause 8.3 (“Repayment of Tranche B Loans”), each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.

(b)

The amount of each Lender’s participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.

(c)

No Lender has a duty to enquire of any person whether or not any of the conditions to the advance of a Loan set out in this agreement have been met. Each Lender may assume that those conditions have been met unless it is expressly notified to the contrary by the Agent. No Lender will have any liability to any person for advancing a Loan based on such assumption.

5.5

Cancellation – end of the Availability Period

Any Available Commitments under a Facility which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period for that Facility.

5.6

Clean Down

(a)

Commencing from Financial Close, the Borrower must ensure that the amount of outstanding Tranche B Loans is reduced to nil for a period of not less than 3 consecutive Business Days (the “ Clean Down Period ”) at least once in each Financial Year with at least 3 months between each Clean Down Period.

(b)

The Borrower will confirm that such Clean Down Period has occurred in the next Compliance Certificate.

(c)

This clause 5.6 does not apply to any outstanding Letters of Credit issued under Tranche B.

6	Utilisations – Letters of Credit

6.1

Tranche B

(a)

Tranche B may be utilised by way of one or more Letters of Credit.

(b)

Clause 5 (“Utilisation – Loans”) (other than clause 5.5 (“Cancellation – end of the Availability Period”) does not apply to Utilisations under Tranche B by way of Letters of Credit.

(c)

Unless otherwise agreed, in determining the amount of the Available Facility for the purposes of this agreement, the Available Commitment of each Issuing Bank under Tranche B will be calculated ignoring any cash cover or any back-to-back letter of credit provided for outstanding Letters of Credit issued by that Issuing Bank.

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6.2

Delivery of a Utilisation Notice for Letters of Credit

The Borrower (for itself or on behalf of an Obligor) may request a Letter of Credit to be issued by delivery to the Agent (with a copy to the relevant Issuing Bank) of a duly completed Utilisation Notice by 11.00 am (Sydney time) on the second Business Day before the day it requires the Letter of Credit to be issued (or any other time agreed by the relevant Issuing Bank).

6.3

Completing a Utilisation Notice – Letters of Credit

(a)

Each Utilisation Notice for a Letter of Credit is irrevocable and will not be regarded as having been duly completed unless:

(i)

it specifies that the proposed Utilisation is for a Letter of Credit;

(ii)

it identifies the Issuing Bank which is to issue the Letter of Credit;

(iii)

the currency and amount of the Letter of Credit comply with clause 6.4 (“Currency and amount”);

(iv)

the Letter of Credit is in the form set out in schedule 11 (“Form of Letter of Credit”) or another form that has been agreed in writing by the relevant Issuing Bank (such agreement not to be unreasonably withheld, having regard to the internal policies of the Issuing Bank from time to time);

(v)

the delivery instructions and the relevant beneficiary for the Letter of Credit are specified; and

(vi)

the applicable conditions in clause 4.2 (“Conditions to all Utilisations”) have been met.

(b)

The Borrower must use reasonable endeavours to select the Issuing Bank which is to issue a proposed Letter of Credit so that, in respect of each Issuing Bank under Tranche B, the aggregate amount of outstanding Letters of Credit issued by that Issuing Bank (expressed as a proportion of the aggregate amount of all outstanding Letters of Credit issued under Tranche B) is as close as reasonably practicable to that Issuing Bank’s Tranche B Commitment at that time (expressed as a proportion of the Total Tranche B Commitments at that time).

6.4

Currency and amount

(a)

The currency specified in a Utilisation Notice for the issue of a Letter of Credit must be the Base Currency.

(b)

The amount of the requested Letter of Credit must not be not more than the Available Facility under Tranche B at that time and must be a minimum amount of $500,000 (or if less, the Available Facility).

6.5

Issue of Letters of Credit

(a)

If the conditions set out in this agreement have been met, the relevant Issuing Bank shall issue the Letter of Credit on the Utilisation Date.

(b)

The Issuing Bank has no duty to enquire of any person whether or not any of the conditions to the issue of a Letter of Credit set out in this agreement have been met. The Issuing Bank may assume that those conditions have been met unless it is expressly notified to the contrary by the Agent or an Obligor. The Issuing Bank will not have liability to any person for issuing a Letter of Credit based on such assumption.

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(c)

The Issuing Bank is solely responsible for the form of the Letter of Credit that it issues. The Agent has no duty to monitor the form of that document.

(d)

The Issuing Bank and the Agent shall provide the other with any information reasonably requested by the other that relates to a Letter of Credit and its issue.

(e)

The Issuing Bank may issue a Letter of Credit in the form of a SWIFT message or other form of communication customary in the relevant market but has no obligation to issue that Letter of Credit in any particular form of communication.

6.6

Renewal of a Letter of Credit

(a)

The Borrower may request that any Letter of Credit which has been issued be renewed by delivery to the Agent (with a copy to the relevant Issuing Bank) of a Renewal Request in substantially similar form to a Utilisation Notice for a Letter of Credit by 11.00 am on the second Business Day before the day it requires the Letter of Credit to be renewed (or any other time agreed by the Issuing Bank).

(b)

The Issuing Bank shall treat any Renewal Request in the same way as a Utilisation Notice for a Letter of Credit.

(c)

The form and terms of each renewed Letter of Credit shall be the same as those of the relevant Letter of Credit immediately prior to its renewal, except that:

(i)

its amount may be less than the amount of the Letter of Credit immediately prior to its renewal; and

(ii)

its Term shall start on the date which was the Expiry Date of the Letter of Credit immediately prior to its renewal, and shall end on the proposed Expiry Date specified in the Renewal Request.

(d)

Subject to clauses 6.6(c) and 6.6(e), if the conditions set out in this agreement have been met, the Issuing Bank shall amend or re-issue any Letter of Credit pursuant to a Renewal Request.

(e)

Where a new Letter of Credit is to be issued to replace (by way of renewal) an existing Letter of Credit, the Issuing Bank is not required to issue that new Letter of Credit until the Letter of Credit being replaced has been returned to the Issuing Bank or the Issuing Bank is satisfied either that it will be returned to it or otherwise that no liability can arise under it.

6.7

Notification to the Agent

Each Issuing Bank shall, upon request, provide to the Agent details of all Letters of Credit issued under this agreement including details of the initial face value of each Letter of Credit, the tenor, the Expiry Date and the beneficiary under that Letter of Credit.

6.8

Reduction or expiry of Letter of Credit

If the amount of any Letter of Credit is wholly or partially reduced or it is repaid or prepaid or it expires prior to its Expiry Date, the relevant Issuing Bank and the Borrower shall promptly notify the Agent of the details upon becoming aware of them.

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6.9

Letter of Credit which does not expire before the Maturity Date for Tranche B

(a)

A Letter of Credit must be issued with an Expiry Date and the Expiry Date for a Letter of Credit cannot (whether at the time it is issued or as a result of an extension or renewal of that Letter of Credit) fall after the Maturity Date for Tranche B, in each case without the prior consent of the relevant Issuing Bank.

(b)

If:

(i)

a Letter of Credit does not have an Expiry Date, or the Expiry Date of the Letter of Credit is after the Maturity Date for Tranche B; and

(ii)

that Letter of Credit has not, by the Maturity Date for Tranche B, been repaid or prepaid (or the relevant Issuing Bank is not otherwise satisfied that no liability can arise under that Letter of Credit),

the Borrower must repay or prepay the Letter of Credit on the Maturity Date for Tranche B.

6.10

Extension of existing Letters of Credit

If a Letter of Credit is issued on terms that the relevant Expiry Date will be automatically extended:

(a)

the terms of the relevant Letter of Credit must provide that the beneficiary will not be entitled to make a demand under the Letter of Credit (solely on the basis that the Letter of Credit has not been extended) until the then-applicable Expiry Date;

(b)

the Issuing Bank must notify the Borrower in writing by no later than the applicable LC Beneficiary Notice Date if the Expiry Date will not be extended; and

(c)

in relation to each extension of that Letter of Credit, the Borrower will be deemed to have delivered a Renewal Request to the Issuing Bank 2 Business Days prior to the applicable LC Beneficiary Notice Date and otherwise in accordance with clause 6.6 (“Renewal of a Letter of Credit”) and the relevant conditions under this agreement which apply to the renewal of a Letter of Credit will apply to the extension of that Letter of Credit.

7	Letters of Credit

7.1

Claims under Letter of Credit

(a)

The Borrower irrevocably and unconditionally authorises each Issuing Bank to pay any claim made or purported to be made under a Letter of Credit issued by it at the request of the Borrower and which appears on its face to be in order and to make any payment under clause 7.4 (“Voluntary pay-out”) (in this clause 7, each of a claim or payment under clause 7.4 (“Voluntary pay-out”) is a “ claim ”).

(b)

The Borrower shall pay to the relevant Issuing Bank an amount equal to the amount of any claim on the day on which the Issuing Bank pays that claim. If the Borrower does not pay this amount to the Issuing Bank on the date on which the Issuing Bank pays the claim, interest shall accrue

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on the amount from that date up to the actual date of payment in accordance with clause 14 (“Interest on overdue amounts”).

(c)

The Borrower acknowledges that each Issuing Bank:

(i)

may make payments under a Letter of Credit issued by it by any means that it determines;

(ii)

may make any payments under a Letter of Credit issued by it despite any direction by the Borrower to the Issuing Bank not to pay, any dispute between the Borrower and the Issuing Bank as to the Issuing Bank’s obligation to pay, any dispute between the Borrower and the beneficiary of the Letter of Credit or any claim by the Borrower that a claim under the Letter of Credit is not valid;

(iii)

is not obliged to carry out any investigation or seek any confirmation from any other person before paying a claim;

(iv)

may refuse to make a payment under a Letter of Credit issued by it (in its absolute discretion) where it considers that a claim under, or any other document presented under the Letter of Credit, does not comply with the terms of the Letter of Credit; and

(v)

deals in documents only and will not be concerned with the legality of a claim or any underlying transaction or any available set-off, counterclaim or other defence of any person.

(d)

The obligations of the Borrower under this clause 7 will not be affected by:

(i)

the sufficiency, accuracy or genuineness of any claim or any other document;

(ii)

any incapacity of, or limitation on the powers of, any person signing a claim or other document;

(iii)

any act of any Government Agency, court, arbitral body, agency or authority or the application of any law or regulation affecting any Letter of Credit; or

(iv)

any failure by any person to obtain any Authorisation required or desirable in connection with any Letter of Credit.

7.2

Indemnities

(a)

Without prejudice to the Borrower’s obligation under clause 7.1 (“Claims under a Letter of Credit”), the Borrower shall immediately on demand indemnify each relevant Issuing Bank against any cost, loss or liability incurred by the Issuing Bank (otherwise than by reason of the Issuing Bank’s fraud, gross negligence or Wilful Default) in acting as the Issuing Bank under any Letter of Credit requested by the Borrower (including as a result of an Issuing Bank making a payment under clause 7.4 (“Voluntary pay-out”)).

(b)

The obligations of the Borrower under this clause 7.2 are continuing obligations and will extend to the ultimate balance of sums payable by the Borrower in respect of any Letter of Credit, regardless of any intermediate payment or discharge in whole or in part.

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(c)

The obligations of the Borrower under this clause 7 will not be affected by any act, omission, matter or thing which, but for this clause 7, would reduce, release or prejudice any of its obligations under this clause 7 (without limitation and whether or not known to it or any other person) including:

(i)

any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under a Letter of Credit or any other person;

(ii)

the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or Obligor;

(iii)

the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under a Letter of Credit or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;

(iv)

any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor, any beneficiary under a Letter of Credit or any other person;

(v)

any amendment (however fundamental) or replacement of a Finance Document, any Letter of Credit or any other document or security;

(vi)

any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any Letter of Credit or any other document or security; or

(vii)

any insolvency or similar proceedings.

7.3

Rights of contribution

No Obligor will be entitled to any right of contribution or indemnity from any Finance Party in respect of any payment it may make under this clause 7.

7.4

Voluntary pay-out

An Issuing Bank may cancel a Letter of Credit if:

(a)

the Agent has given notice under clause 24.2 (“Consequences of an Event of Default”);

(b)

clause 8.7 (“Illegality—Letters of Credit”) applies and:

(i)

the Borrower has been unable to procure the release of that Letter of Credit issued by the Issuing Bank; or

(ii)

another bank has not replaced the Issuing Bank and issued a replacement Letter of Credit;

(c)

the Issuing Bank would be entitled to exercise its rights under clause 35 (“Anti-money laundering and sanctions”);

(d)

the Borrower has failed to comply with clause 6.9(b) (“Letter of Credit which does not expire before the Maturity Date for Tranche B”); or

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(e)

otherwise permitted under the terms of that Letter of Credit (with the approval of the Borrower prior to that Letter of Credit’s issuance, extension or renewal),

by paying to the beneficiary of the relevant Letter of Credit the outstanding amount of the Letter of Credit or any lesser amount specified by the beneficiary.

Part 3 Repayment, prepayment and cancellation

8	Repaying and cancelling

8.1

Repayment of Tranche A1 Loan

(a)

In relation to the Tranche A1 Loan, the Borrower agrees to pay the relevant Tranche A1 Repayment Instalment on each Tranche A1 Repayment Date.

(b)

The Total Tranche A1 Commitments will reduce on each Tranche A1 Repayment Date by the amount of the Tranche A1 Repayment Instalment paid on that date. When the Total Tranche A1 Commitments reduce, each Lender’s Tranche A1 Commitment shall reduce rateably.

(c)

The Borrower must ensure that all principal amounts, accrued but unpaid interest, fees and all other amounts owing under Tranche A1 are paid on the Maturity Date for Tranche A1.

(d)

The Borrower may not reborrow any part of Tranche A1 which is repaid.

8.2

Repayment of Tranche A2 Loan

(a)

The Borrower must ensure that all principal amounts, all accrued but unpaid interest, fees and all other amounts owing under Tranche A2 are paid on the Maturity Date for Tranche A2.

(b)

The Borrower may not reborrow any part of Tranche A2 which is repaid .

8.3

Repayment of Tranche B Loans

The Borrower shall repay each Tranche B Loan on the last day of the relevant Interest Period for that Loan.

However, if:

(a)

a Tranche B Loan is to be made available to the Borrower:

(i)

on the same day that a maturing Tranche B Loan is due to be repaid by the Borrower; and

(ii)

in whole or in part for the purpose of refinancing the maturing Tranche B Loan; and

(b)

the proportion borne by each Lender’s participation in the maturing Tranche B Loan to the aggregate amount of that maturing Tranche B Loan is the same as the proportion borne by that Lender’s participation in the new Tranche B Loan to the aggregate amount of the new Tranche B Loan,

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the aggregate amount of the new Tranche B Loan shall, unless the Borrower notifies the Agent to the contrary in the relevant Utilisation Notice, be treated as if applied in or towards repayment of the maturing Tranche B Loan so that:

(c)

if the amount of the maturing Tranche B Loan exceeds the aggregate amount of the new Tranche B Loan:

(i)

the Borrower will only be required to make a payment under clause 34.1 (“Payments to the Agent”) in an amount equal to that excess; and

(ii)

each Lender’s participation in the new Tranche B Loan shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender’s participation in the maturing Tranche B Loan and that Lender will not be required to make a payment under clause 34.1 (“Payments to the Agent”) in respect of its participation in the new Tranche B Loan; and

(d)

if the amount of the maturing Tranche B Loan is equal to or less than the aggregate amount of the new Tranche B Loan:

(i)

the Borrower will not be required to make a payment under clause 34.1 (“Payments to the Agent”); and

(ii)

each Lender will be required to make a payment under clause 34.1 (“Payments to the Agent”) in respect of its participation in the new Tranche B Loan only to the extent that its participation in the new Tranche B Loan exceeds that Lender’s participation in the maturing Tranche B Loan and the remainder of that Lender’s participation in the new Tranche B Loan shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender’s participation in the maturing Tranche B Loan.

The Borrower must ensure that all principal amounts, accrued but unpaid interest, fees and all other amounts owing under any outstanding Tranche B Loan is paid on the Maturity Date for Tranche B.

8.4

Voluntary prepayment

(a)

The Borrower may, if it gives the Agent not less than 3 Business Days’ (or such shorter period as the Lenders under the relevant Facility may agree) prior written notice, prepay the whole or any part of the amount outstanding under any Facility (but, if in part, being an amount that reduces the amount of the Loan by a minimum amount of $1,000,000 and a whole multiple of $500,000).

(b)

Any amount of a Tranche A1 Loan or a Tranche A2 Loan which is prepaid by the Borrower may not be reborrowed.

(c)

Unless a contrary indication appears in this agreement, any part of Tranche B which is prepaid or repaid may be reborrowed in accordance with the terms of this agreement.

8.5

Voluntary cancellation

(a)

The Borrower may, if it gives the Agent not less than 3 Business Days’ (or such shorter period as the Lenders under the relevant Facility may agree) prior written notice, cancel the whole or any part (being a minimum amount of $1,000,000 and a whole multiple of $500,000) of an

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Available Facility. Any cancellation under this clause 8.5 shall reduce the Commitments of the Lenders rateably under that Facility.

(b)

No amount of the Total Commitments which is cancelled under this agreement may be reinstated.

8.6

Illegality – Loans

If, in any applicable jurisdiction, it becomes unlawful (or impossible as a result of a change in law or regulation occurring after the date of this agreement) for any Lender to perform any of its obligations as contemplated by this agreement or to fund or maintain its participation in any Utilisation:

(a)

that Lender shall promptly notify the Agent upon becoming aware of that event and the Agent shall promptly notify the Borrower;

(b)

upon the Agent notifying the Borrower, the Lender will not be obliged to advance its proportion of any Loan; and

(c)

to the extent that the Lender’s participation has not been transferred pursuant to clause 10 (“Replacement or repayment and cancellation in relation to a Lender”), the Borrower shall repay that Lender’s participation in the Utilisations in accordance with clause 10 (“Replacement or repayment and cancellation in relation to a Lender”).

8.7

Illegality – Letters of Credit

If, in any applicable jurisdiction, it becomes unlawful (or impossible as a result of a change in law or regulation occurring after the date of this agreement) for an Issuing Bank to issue or leave outstanding any Letter of Credit, then:

(a)

the Issuing Bank shall promptly notify the Agent upon becoming aware of that event and the Agent shall promptly notify the Borrower;

(b)

upon the Agent notifying the Borrower, the Issuing Bank shall not be obliged to issue any Letter of Credit; and

(c)

to the extent that each Letter of Credit issued by the Issuing Bank and outstanding at such time has not been returned and cancelled pursuant to clause 10 (“Replacement or repayment and cancellation in relation to a Lender”), the Borrower must ensure that cash cover is provided to the Issuing Bank in accordance with clause 10 (“Replacement or repayment and cancellation in relation to a Lender”).

8.8

Restrictions

(a)

Any notice of cancellation or prepayment given by the Borrower under this clause 8 is irrevocable and, unless a contrary indication appears in this agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.

(b)

Any prepayment under this clause 8 shall be made together with accrued but unpaid interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.

(c)

If the Borrower prepays the whole or any part of the Tranche A1 Loan under clause 8.4 (“Voluntary prepayment”), the amount which is applied in prepayment will be applied against the remaining Tranche A1 Repayment Instalments at the Borrower’s discretion.

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(d)

Any amounts prepaid by the Borrower under clause 8.4 (“Voluntary prepayment”) will be applied rateably between all Lenders under the Facility which is prepaid.

(e)

The Borrower shall not repay or prepay all or any part of the Utilisations or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this agreement.

(f)

If all or part of any Lender’s participation in a Utilisation under a Facility is repaid or prepaid and is not available for redrawing (other than by operation of clause 4.2 (“Conditions to all Utilisations”)), the Lender’s Commitment in respect of that Facility will be deemed to be cancelled on the date of repayment or prepayment by an amount equal to the amount of that Lender’s participation in the relevant Facility which is repaid or prepaid.

(g)

The Agent must provide to the Lenders a copy of each notice it receives from the Borrower under clauses 8.4 (“Voluntary prepayment”) or 8.5 (“Voluntary cancellation”) or from a Lender under clauses 8.6 (“Illegality – Loans”) or 8.7 (“Illegality – Letters of Credit”).

9	Mandatory prepayments

9.1

Mandatory prepayments

The Borrower must apply the following amounts in prepayment of the Facilities:

(a)

( Disposal proceeds ): net cash proceeds (after deducting transaction costs and taxes and other related expenses) of any Disposal of assets in excess of A$10,000,000 in any Financial Year received by the Obligors which are not, within a period of 365 days of receipt, reinvested in Permitted Acquisitions or Growth Capex or in assets of like or superior type and value as the assets disposed of;

(b)

( warranty proceeds ): any net proceeds (after deducting enforcement costs and taxes and other related expenses) received under any warranty or indemnity claims that is capital in nature in respect of the Share Sale Agreement or any due diligence report and excluding purchase price adjustments and amounts of a revenue replacement nature and which are not actually applied within 365 days of receipt in rectifying the problem the subject of the claim, replacing assets or meeting liabilities (including payment of tax) in respect of which the relevant claim was made to the extent such net proceeds exceed in aggregate a threshold amount of A$10,000,000 in any Financial Year;

(c)

( insurance proceeds ): insurance proceeds from any insurance claim received or recovered by an Obligor in cash in any Financial Year (net of any costs and taxes) to the extent that the insurance proceeds exceed a threshold amount of A$10,000,000 in any Financial Year but excluding:

(i)

any business interruption insurance proceeds;

(ii)

proceeds from claims in relation to public liability, personal injury, director’s and officer’s liability, other third party liability and workers’ compensation insurance;

(iii)

amounts applied to reinstate or replace assets in respect of which those insurance proceeds were received or which are contractually committed to be so applied;

(iv)

amounts required to be paid to third parties; or

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(v)

amounts which are used to reimburse an Obligor for amounts it has spent (other than by utilising the Facilities) in reinstating or replacing assets in respect of which those insurance proceeds were received;

(d)

( Equity Cure ): the proceeds of an Additional Equity Contribution pursuant to clause 24.3 (“Equity Cure”);

(e)

( Refinancing Debt ): the proceeds of any Refinancing Debt which is incurred for the purpose of refinancing all or part of a Facility under this agreement;

(f)

( Cash sweep ): on each Calculation Date on which a Cash Sweep Event subsists, 100% of Locked-up Cash;

(g)

( Year 5 Mandatory Prepayment ): all Year 5 Mandatory Prepayment Amounts pursuant to clause 9.4 (“Year 5 Mandatory Prepayment”); and

(h)

( RHA Termination Payment ): if an RHA Termination Payment is received by GRail in accordance with clause 9.5 (“RHA Termination Payment”), the relevant RHA Prepayment Amount.

9.2

Application of mandatory prepayments

(a)

Subject to clause 9.2(b), amounts required to be prepaid under clause 9.1 (“Mandatory prepayments”) will be applied against the Term Loan Facilities first in repayment of the Tranche A2 Loan and then (once the Tranche A2 Loan is fully repaid) in repayment of the Tranche A1 Loan (and in the case of the Tranche A1 Loan, amounts prepaid will be applied pro rata across the remaining Tranche A1 Repayment Instalments).

(b)

If the amount required to be prepaid under clause 9.1 (“Mandatory prepayments”) is:

(i)

a Year 5 Mandatory Prepayment Amount, that amount shall be applied in prepayment of the Tranche A2 Loan only until there is no further amount outstanding under the Tranche A2 Loan;

(ii)

Refinancing Debt which is incurred for the purpose of refinancing all or part of a Facility under this agreement, that amount will be applied in prepayment of the relevant Facility (in whole or in part) which is to be refinanced; or

(iii)

a RHA Prepayment Amount, that amount shall be applied first in prepayment of the Tranche A1 Loan (pro rata across the remaining Tranche A1 Repayment Instalments) and once the Tranche A1 Loan has been fully repaid, the Tranche A2 Loan.

(c)

All amounts prepaid under this clause 9:

(i)

will be applied pro rata between all Lenders participating in the relevant Facility which is prepaid;

(ii)

may not be re-borrowed;

(iii)

shall be made together with accrued but unpaid interest on the amount prepaid and, subject to Break Costs, without premium or penalty; and

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(iv)

each Lender’s Commitment in respect of the relevant Facility which is prepaid will be deemed to be cancelled on the date the prepayment is made in accordance with clause 9.3 (“Timing of mandatory prepayments”) by an amount equal to the amount of that Lender’s participation in the relevant Facility which is prepaid.

9.3

Timing of mandatory prepayments

(a)

Other than amounts prepaid under:

(i)

clause 9.1(d) (“Equity cure”) (which must be applied immediately);

(ii)

clause 9.1(e) (“Refinancing Debt”) (which must be applied on the relevant refinancing date); or

(iii)

clause 9.1(h) (“RHA Termination Payment”) (which must be applied at the time GRail receives the relevant RHA Termination Payment from Glencore Coal),

amounts required to be prepaid under clause 9.1 (“Mandatory prepayments”) will be applied in prepayment on the next Interest Payment Date for the relevant Loan or Loans to be prepaid.

(b)

The Obligors must ensure that the amounts required to be prepaid under this clause 9 are deposited into a prepayment account with the Agent (as the same may be redesignated, substituted or replaced from time to time and bearing interest at usual commercial rates for such amounts) (the “ Mandatory Prepayment Account ”) as soon as they are received by a member of the GWA Group. Provided that no Default or Review Event is subsisting, accrued interest on the balance credited to the Mandatory Prepayment Account shall be paid by the Agent to such account as the Borrower may direct from time to time by written notice to the Agent.

(c)

The Borrower irrevocably authorises and instructs the Agent to apply amounts credited to the Mandatory Prepayment Account to pay amounts due and payable under and in accordance with this clause 9.

9.4

Year 5 Mandatory Prepayment

(a)

In respect of any Calculation Date falling during the period from (but excluding) the date that is 4 years after the date of Financial Close to (and including) the date that is 4 years and 6 months after the date of Financial Close, the Borrower must ensure that 50% of all amounts from the Quarter ending on that Calculation Date which:

(i)

if a Lock-Up Event subsists, comprise Locked-Up Cash; or

(ii)

otherwise would be available to pay a Distribution,

are applied in mandatory prepayment of Tranche A2 in accordance with clause 9.2 (“Application of mandatory prepayments”).

(b)

In respect of any Calculation Date falling during the period from (but excluding) the date that is 4 years and 6 months after the date of Financial Close to the Maturity Date, the Borrower must ensure that 100% of all amounts from the Quarter ending on that Calculation Date which:

(i)

if a Lock-Up Event subsists, comprise Locked-Up Cash; or

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(ii)

otherwise would be available to pay a Distribution;

are applied in mandatory prepayment of Tranche A2 in accordance with clause 9.2 (“Application of mandatory prepayments”).

(c)

For the avoidance of doubt, if on the relevant Calculation Date a Cash Sweep Event is subsisting, this clause 9.4 will not apply.

9.5

RHA Termination Payment

If, at any time:

(a)

the Rail Haulage Agreement is terminated; or

(b)

Glencore Coal terminates the Services (in whole or part) in respect of NTK affected by GRail FM under clause 35.3 (“Partial termination for GRail FM”) of the Rail Haulage Agreement,

and Glencore Coal is required to pay a RHA Termination Payment to GRail in accordance with clause 35.4 (“Termination Payment”) of the Rail Haulage Agreement, the Borrower must ensure that upon the RHA Termination Payment being paid to GRail, an amount equal to the RHA Prepayment Amount is applied in mandatory prepayment in accordance with clause 9.2 (“Application of mandatory prepayments”).

Defined terms used in this clause 9.5 not otherwise defined in this agreement have the meaning given in the Rail Haulage Agreement.

10	Replacement or repayment and cancellation in relation to a Lender

10.1

Right to replace a Lender or repay and cancel commitments

If, at any time:

(a)

( Illegality ): the circumstances in clause 8.6 (“Illegality—Loans”) or clause 8.7 (“Illegality—Letters of Credit”) apply to any Lender;

(b)

( Tax gross-up ): any sum payable to any Lender by an Obligor is required to be increased under clause 17.2(c) (“Tax gross up”);

(c)

( Increased Costs ): any Lender claims any sum from an Obligor under clause 17.3 (“Tax indemnity”) or clause 18 (“Increased costs”);

(d)

( Defaulting Finance Party ): any Lender is a Defaulting Finance Party;

(e)

( Market Disruption ): any Lender is a MD Affected Lender; or

(f)

( Non Consenting Lender ): any Lender is a Non Consenting Lender,

(such Lender being, for the purposes of this clause 10, an “ Affected Lender ”) the Borrower may (and in the case of sub-paragraph (a) above, the Borrower must), whilst the relevant circumstances described above continue, by giving the Agent not less than 10 Business Days’ prior written notice (or such other period as is necessary to comply with any applicable grace period permitted by law where clause 10.1(a) (“Illegality”) applies), either:

(g)

require that the Affected Lender transfer all of its rights and obligations (in its capacity as a Lender) under the Finance Documents (and the Affected Lender will so transfer) at par to a replacement Lender selected by the Borrower (“ Transfer Option ”); or

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(h)

cancel the Commitments of the Affected Lender and repay the Affected Lender’s participation in the Utilisations at par (“ Repayment Option ”),

in each case, in accordance with clause 10.2 (“Procedure to replace a Lender or repay and cancel commitments”).

A notice given by the Borrower under this clause 10.1 is irrevocable. The Agent shall promptly notify the other Lenders if it receives a notice from the Borrower under this clause 10.1.

10.2

Procedure to replace a Lender or repay and cancel commitments

(a)

If the Borrower exercises the Transfer Option:

(i)

the replacement Lender selected by the Borrower must (unless the Agent otherwise consents) be a Qualifying Transferee; and

(ii)

the Borrower must ensure that, within 90 days of the date of the notice given by the Borrower to the Agent under clause 10.1 (or such other period agreed between the Borrower and the Affected Lender subject to any applicable grace period permitted by law where clause 10.1(a) (“Illegality”) applies):

(A)

the Affected Lender and the replacement Lender comply with all the procedures and steps (including the execution of a Transfer Certificate) under the Finance Documents to which the Affected Lender is a party in the capacity as a Lender in order to transfer the rights and obligations of the Affected Lender under the Finance Documents at par to the replacement Lender; and

(B)

if the Affected Lender is an Issuing Bank, all Letters of Credit issued by the Affected Lender are returned to the Affected Lender and cancelled and the replacement Lender issues replacement Letters of Credit.

(b)

If the Borrower exercises the Repayment Option, the Borrower must, on the next Interest Payment Date for each Loan (or such other period agreed between the Borrower and the Affected Lender subject to any applicable grace period permitted by law where clause 10.1(a) (“Illegality”) applies) and without the necessity for any demand:

(i)

repay the Affected Lender’s proportion of the principal amount outstanding of each Loan at par; and

(ii)

if the Affected Lender is an Issuing Bank, ensure that:

(A)

all Letters of Credit issued by the Affected Lender are returned to the Affected Lender and cancelled; and/or

(B)

cash cover is provided to the Issuing Bank in relation to the principal amount outstanding of all Letters of Credit issued by the Affected Lender which have not been returned and cancelled and which will remain outstanding after the Affected Lender ceases to be a Lender.

The Commitments of the Affected Lender will be automatically reduced to zero on the date that the Borrower makes the required payment to the Affected Lender under this paragraph (b).

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(c)

If the terms of clause 10.2(a) or clause 10.2(b) are complied with, the Affected Lender will cease to be a Lender.

(d)

If an Affected Lender which is replaced or repaid in accordance with this clause 10 is also a Swap Counterparty (or its Affiliate is a Swap Counterparty) under the Security Trust Deed, the obligations of the Affected Lender (or its Affiliate) as a Swap Counterparty may be novated, closed out or terminated subject to the terms of clause 14 (“Hedging arrangements”) of the Security Trust Deed.

10.3

Conditions

If the Borrower elects to exercise the Transfer Option or the Repayment Option:

(a)

neither the Agent nor any Lender shall have any obligation to find a replacement Lender. However, the Affected Lender must co-operate with, and provide all reasonable assistance to, the Borrower in order to facilitate any transfer to a replacement Lender;

(b)

the Borrower must ensure that all accrued but unpaid interest, fees, Costs and (if applicable) Break Costs owing to the Affected Lender are paid;

(c)

in no event shall the Affected Lender who is replaced or repaid under clause 10.2 (“Procedure to replace a Lender or repay and cancel commitments”) be required to pay or surrender any of the fees received by it pursuant to the Finance Documents prior to it becoming an Affected Lender;

(d)

the Affected Lender shall only be obliged to transfer its rights and obligations to a replacement Lender pursuant to clause 10.2 (“Procedure to replace a Lender or repay and cancel commitments”) once the Agent is satisfied that it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to that transfer; and

(e)

if the Affected Lender is also the Agent, the Borrower may not replace that person in its capacity as Agent.

Part 4 Costs of Utilisations

11	Interest

11.1

Interest charges

(a)

The rate of interest on each Loan for each Interest Period is the percentage rate per annum which is the aggregate of the applicable:

(i)

Margin; and

(ii)

BBSY Bid.

(b)

Interest accrues daily from (and including) the first day of an Interest Period to (but excluding) the last day of the Interest Period and is calculated on actual days elapsed using a year of 365 days.

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(c)

The Agent shall promptly notify the relevant Lenders and the Borrower of the determination of a rate of interest.

(d)

Accrued interest is payable on each Loan on each Interest Payment Date.

11.2

Notification of Interest Periods

(a)

An Interest Period for a Loan is:

(i)

for the first Interest Period, the period specified in the Utilisation Notice; and

(ii)

for each subsequent Interest Period and subject to clauses 11.2(b) and 11.2(c), the period specified in an Interest Period Selection Notice given by the Borrower to the Agent by 11.00am on the second Business Day before the end of the then-current Interest Period. An Interest Period Selection Notice is effective when the Agent receives it in legible form. An effective Interest Period Selection Notice is irrevocable.

(b)

Subject to clause 11.2(c), each Interest Period must be either 3 or 6 months (or such other period as agreed between the Borrower and the Agent (acting on the instructions of the Majority Lenders under the relevant Facility)).

(c)

During the 6 month period prior to the Maturity Date for a Facility, each Interest Period must be either 1 or 3 months or such other period which is reasonably requested by the Borrower to facilitate a refinancing and which is agreed by the Agent (acting reasonably on the instructions of the Majority Lenders under the relevant Facility).

(d)

The Agent agrees to notify each Lender under the Facility to which the Interest Period Selection Notice relates as soon as practicable after the Agent receives an Interest Period Selection Notice.

(e)

If the Borrower does not give the Agent an Interest Period Selection Notice by the required time, the subsequent Interest Period for the relevant Loan shall be the same length as the preceding Interest Period (or if it is shorter than the preceding Interest Period, the period until the applicable Maturity Date).

11.3

When Interest Periods begin and end

(a)

An Interest Period for a Loan begins:

(i)

for the first Interest Period, on the Utilisation Date for that Loan; and

(ii)

for each subsequent Interest Period or in the case of a Rollover Loan, on the last day of its preceding Interest Period.

(b)

If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not). However, an Interest Period which would otherwise end after the applicable Maturity Date shall end on the Maturity Date for that Facility.

11.4

Consolidation of Loans

If two or more Interest Periods:

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(a)

relate to Loans made under Tranche B; and

(b)

end on the same date,

the Borrower may request in the Interest Period Selection Notice for the next Interest Period that those Tranche B Loans be consolidated into, and treated as, a single Tranche B Loan on the last day of the Interest Period.

12	Changes to the calculation of interest

12.1

Unavailability of Screen Rate

(a)

( Interpolated Screen Rate ): If no Screen Rate is available for BBSY Bid for the Interest Period of a Loan, the applicable BBSY Bid shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of that Loan, except where the Interest Period of a Loan is less than the shortest period published for BBSY Bid, in which case it will be BBSY Bid for the shortest period published for BBSY Bid.

(b)

( Reference Bank Rate ): If no Screen Rate is available for BBSY Bid for:

(i)

the currency of a Loan; or

(ii)

the Interest Period of a Loan and it is not possible to calculate the Interpolated Screen Rate,

the applicable BBSY Bid shall be the Reference Bank Rate as of the Specified Time for the currency of that Loan and for a period equal in length to the Interest Period of that Loan.

(c)

( Cost of funds ): If clause 12.1(b) applies but no Reference Bank Rate is available for the relevant currency and Interest Period there shall be no BBSY Bid for that Loan and clause 12.4 (“Cost of funds”) shall apply to that Loan for that Interest Period.

12.2

Calculation of Reference Bank Rate

(a)

If BBSY Bid is to be determined on the basis of a Reference Bank Rate but a Reference Bank does not supply a quotation by the Specified Time, the Reference Bank Rate shall be calculated on the basis of the quotations of the remaining Reference Banks.

(b)

If at or about noon on the Quotation Day none or only one of the Reference Banks supplies a quotation, there shall be no Reference Bank Rate for that Interest Period.

12.3

Market disruption

If before 5.00 pm on the Business Day after the Quotation Day for the relevant Interest Period, the Agent receives notifications from more than 2 Lenders (whose participations in a Loan exceed 40% of that Loan) that as a result of market circumstances not limited to it, the cost to it of funding its participation in that Loan (from whatever source it may reasonably select) would be in excess of BBSY Bid (in which case an “ MD Affected Lender ” will be a Lender which gives such a notification), then clause 12.4 (“Cost of funds”) shall apply to the participation in the Loan of each MD Affected Lender for the relevant Interest Period.

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12.4

Cost of funds

(a)

If this clause 12.4 applies, the rate of interest on each relevant Lender’s share of the relevant Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:

(i)

the Margin; and

(ii)

(A)

in the circumstances described in clause 12.3 (“Market disruption”), the rate notified to the Agent by the relevant MD Affected Lender; and

(B)

in the circumstances described in clause 12.1 (“Unavailability of Screen Rate”), the rate of interest notified to the Agent by the Lender,

to be that which expresses as a percentage rate per annum (rounded up to the nearest fourth decimal place), the cost to the Lender of funding its participation in that Loan from whatever source it may reasonably select. That rate is to be notified as soon as practicable and in any event within 3 Business Days of the first day of that Interest Period.

(b)

If this clause 12.4 applies and the Agent or the Borrower so requires, the Agent and the Borrower shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest.

(c)

Any alternative basis agreed pursuant to clause 12.4(a) shall, with the prior consent of all the Lenders and the Borrower, be binding on all parties.

12.5

Agent’s role and confidentiality

(a)

The Agent shall promptly notify the Borrower if there is a market disruption event under clause 12.3 (“Market disruption”) and of the identity of any Lender or Lenders giving a notice under that clause.

(b)

A Lender who gives a notification under clause 12.3 (“Market disruption”) may in that notification request the Agent to notify each other Lender that it has received a notification under clause 12.3 (“Market disruption”) (without giving details) and the Agent shall promptly comply with the request.

12.6

Right to prepay and substitute an MD Affected Lender

If, at any time, a Lender is an MD Affected Lender, then the Borrower may exercise its rights under clause 10 (“Replacement or repayment and cancellation in relation to a Lender”) in respect of that Lender.

Fees

13.1

Fees contingent

Fees described in this clause 13 will only be payable if Financial Close occurs.

13.2

Commitment fees

(a)

The Borrower agrees to pay to the Agent (for the account of each Lender) a fee computed at the rate of 45% of the applicable Margin on that Lender’s Available Commitment under each Facility for the

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Availability Period applicable to that Facility (each a “ Commitment Fee ”).

(b)

Each Commitment Fee accrues daily from (and including) the date of this agreement and is payable quarterly in arrears (commencing on the first Calculation Date after the date of Financial Close), on the last day of the relevant Availability Period and on any cancelled amount at the time a cancellation is effective.

(c)

No Commitment Fees will be payable:

(i)

on the Term Loan Facilities provided that Financial Close and utilisation of the Term Loan Facilities occurs by no later than 10 Business Days after the date of this agreement; or

(ii)

on any Available Commitment of a Lender for any day on which that Lender is a Defaulting Finance Party.

13.3

Establishment fees

The Borrower agrees to pay to the Agent (for the account of each Original Lender) an establishment fee in the amount and at the times agreed in the Mandate, Commitment and Establishment Fee Letter.

13.4

Agency fees

The Borrower agrees to pay to the Agent (for its own account) an agency fee in the amount and at the times agreed in the Agency and Security Trustee Fee Letter.

13.5

Letter of Credit fees

(a)

The Borrower agrees to pay to the Agent (for the account of each Issuing Bank) a Letter of Credit fee (computed at the rate equal to the Margin applicable to a Tranche B Loan at that time) on the outstanding amount of each Letter of Credit that Issuing Bank has issued at the request of the Borrower for the period from the issue of that Letter of Credit until its Expiry Date or, if the Letter of Credit does not have an Expiry Date, until the Letter of Credit is repaid in one of the ways set out clauses 1.2(p)(ii) to 1.2(p)(v) (inclusive) (“Interpretation”).

(b)

The accrued Letter of Credit fee on a Letter of Credit is payable in arrears on each Calculation Date that a Letter of Credit is outstanding (or such shorter period as shall end on the Expiry Date for that Letter of Credit) starting on the date of issue of that Letter of Credit. If the outstanding amount of a Letter of Credit is reduced, any Letter of Credit fee accrued in respect of the amount of that reduction is payable on the day that that reduction becomes effective.

(c)

If the Borrower provides cash cover in respect of any Letter of Credit:

(i)

the Letter of Credit fee shall continue to be payable until the expiry of the Letter of Credit; and

(ii)

the Borrower shall be entitled to apply interest accrued on the cash cover to pay the fees described in sub-paragraph (i) above provided that no Event of Default is continuing.

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14	Interest on overdue amounts

14.1

Obligation to pay

If there is an Unpaid Sum under this agreement on its due date, interest shall accrue on the Unpaid Sum from (and including) the due date up to (but excluding) the date of actual payment (both before and after judgment) at a rate which, subject to clause 14.2(a) (“Compounding”), is the sum of 2.00% per annum and the rate which would have been payable if the Unpaid Sum had, during the period of non-payment, constituted a Loan in the currency of the Unpaid Sum for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). Any interest accruing under this clause shall be immediately payable by the Borrower on demand by the Agent.

14.2

Compounding

(a)

If any Unpaid Sum consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:

(i)

the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and

(ii)

the rate of interest applying to the overdue amount during that first Interest Period shall be the sum of 2.00% per annum and the interest rate which would have applied if the Unpaid Sum had not become due.

(b)

Default interest (if unpaid) arising on an Unpaid Sum will be compounded with the Unpaid Sum at the end of each Interest Period applicable to that Unpaid Sum but will remain immediately due and payable.

15	Break Costs

(a)

The Borrower will, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being paid by the Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.

(b)

Each Lender will, as soon as reasonably practicable after a demand by the Agent or the Borrower, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.

16	Reliquifying Bills

16.1

Obligation to draw Bills

The Borrower agrees to draw Bills when and in the form required by the Agent on behalf of a Lender. However:

(a)

the discounted value of those Bills, when added to the total of the discounted value of all other Bills drawn as required by the Agent on behalf of the Lender under this clause 16 and which are unmatured or unpresented, may not exceed the Lender’s participation in the Loan to which the Bills relate; and

(b)

no Bill is to be drawn which would mature after the Maturity Date for the Facility in respect of which the Bill is to be drawn.

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16.2

Lender as attorney

The Borrower irrevocably appoints each Authorised Officer of each Lender, individually as its attorney, to draw the Bills and agrees to ratify all action taken by an attorney under this clause 16.2.

16.3

Termination

The Borrower’s obligation to draw Bills ceases, and the appointment of a Lender and its Authorised Officers as attorney for this purpose is revoked, on payment by the Borrower of all amounts owing to the Lender under each Facility.

16.4

No recourse to Borrower

Any Bill drawn at a Lender’s request under this clause 16 must expressly state that it is without recourse to the Borrower.

16.5

Indemnity by Lender

Each Lender unconditionally and irrevocably indemnifies the Borrower against any liability or loss arising from, and any Costs and Taxes incurred in connection with, any Bill drawn at the Lender’s request under this clause 16. Each Lender agrees to pay amounts due under this indemnity to the Borrower on demand.

Part 5 Additional payment obligations

17	Tax gross up and indemnities

17.1

Definitions

In this clause 17:

Protected Party means a Finance Party which is or will be subject to any liability, or required to make any payment, for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document.

Tax Credit means a credit against, relief or remission for, or repayment of any Tax.

Tax Payment means either the increase in a payment made by an Obligor to a Finance Party under clause 17.2 (“Tax gross up”) or a payment under clause 17.3 (“Tax indemnity”).

17.2

Tax gross up

(a)

Each Obligor shall make all payments to be made by it under the Finance Documents without any Tax Deduction unless such Tax Deduction is required by law.

(b)

The Borrower or a Finance Party shall, promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction), notify the Agent accordingly. If the Agent receives such notification from a Lender or Issuing Bank it shall notify the Borrower and that Obligor.

(c)

If a Tax Deduction is required by law to be made by an Obligor except in relation to a Tax described in clauses 17.3(b)(i), 17.3(b)(ii), 17.3(b)(iii)(B), 17.3(b)(iv) or 17.3(b)(v) (“Tax indemnity”), the Obligor shall pay an additional amount together with the payment so that, after making any Tax Deduction, the Finance Party receives an amount equal to the payment which would have been due if no Tax Deduction had been required.

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(d)

If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.

(e)

Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Agent for the Finance Party entitled to the payment evidence satisfactory to that Finance Party, acting reasonably, that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.

17.3

Tax indemnity

(a)

The Borrower shall (within three Business Days of demand by the Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document or a transaction or payment under it.

(b)

Clause 17.3(a) shall not apply:

(i)

with respect to any Tax assessed on a Finance Party if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party:

(A)

under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or

(B)

under the law of the jurisdiction in which that Finance Party (or, in the case of a Lender, that Lender’s Facility Office) is located in respect of amounts received or receivable in that jurisdiction; or

(ii)

with respect to Australian Withholding Tax in respect of any interest paid to an Offshore Associate of the relevant Obligor;

(iii)

to the extent the relevant loss, liability or Cost:

(A)

is compensated for by an increased payment under clause 17.2 (“Tax gross up”); or

(B)

relates to a FATCA Deduction required to be made by a party;

(iv)

which would not be required to be deducted or withheld by an Obligor if the Finance Party had provided it with any of its name, address, Australian business number (ABN), Australian tax file number, registration number or similar details or evidence of any relevant tax exemption or similar details; or

(v)

in a case where an Obligor receives a notice or direction under section 260-5 of Schedule 1 to the Taxation Administration Act 1953 (Cth), section 255 of the Tax Act or any analogous provisions, any amounts paid or deducted from sums payable to the Finance Party by the Obligor in compliance with such notice or direction.

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(c)

A Protected Party making or intending to make a claim pursuant to clause 17.3(a) shall promptly notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify the Borrower.

(d)

A Protected Party shall, on receiving a payment from an Obligor under this clause 17.3, notify the Agent.

17.4

Tax credit

If an Obligor makes a Tax Payment and the relevant Finance Party determines in its absolute discretion that:

(a)

a Tax Credit is attributable to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and

(b)

that Finance Party has obtained, utilised and retained that Tax Credit,

subject to clause 32 (“Conduct of business by the Finance Parties”), the Finance Party shall pay an amount to the Obligor which that Finance Party determines in its absolute discretion will leave it (after that payment) in the same after-Tax position as it would have been in had the circumstances not arisen which caused the Tax Payment to be required to be made by the Obligor.

17.5

Stamp duty and Taxes

The Borrower shall:

(a)

pay; and

(b)

within three Business Days of demand, indemnify each Finance Party against any Cost, loss or liability that Finance Party incurs in relation to,

all stamp duty, registration and other similar Taxes payable in respect of any Finance Document except any Transfer Certificate, assignment or accession document for an acceding Finance Party under the Finance Documents.

17.6

Indirect Taxes

(a)

All payments to be made by an Obligor under or in connection with any Finance Document have been calculated without regard to Indirect Tax. If all or part of any such payment is the consideration for a taxable supply or chargeable with Indirect Tax then, when the Obligor makes the payment:

(i)

it must pay to the Finance Party an additional amount equal to that payment (or part) multiplied by the appropriate rate of Indirect Tax; and

(ii)

the Finance Party will promptly provide to the Obligor a tax invoice complying with the relevant law relating to that Indirect Tax.

(b)

Where a Finance Document requires an Obligor to reimburse or indemnify a Finance Party for any Costs, that Obligor shall also at the same time pay and indemnify that Finance Party against all Indirect Tax incurred by that Finance Party in respect of the Costs save to the extent that that Finance Party is entitled to repayment or credit in respect of the Indirect Tax. The Finance Party will promptly provide to the Obligor a tax invoice complying with the relevant law relating to that Indirect Tax

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17.7

FATCA information

(a)

Subject to clause 17.7(c), each party shall, within 10 Business Days of a reasonable request by another party:

(i)

confirm to that other party whether it is:

(A)

a FATCA Exempt Party; or

(B)

not a FATCA Exempt Party;

(ii)

supply to that other party such forms, documentation and other information relating to its status under FATCA as that other party reasonably requests for the purposes of that other party’s compliance with FATCA; and

(iii)

supply to that other party such forms, documentation and other information relating to its status as that other party reasonably requests for the purposes of that other party’s compliance with any other law, regulation, or exchange of information regime.

(b)

If a party confirms to another party pursuant to clause 17.7(a)(i) that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that party shall notify that other party reasonably promptly.

(c)

Clause 17.7(a) shall not oblige any Finance Party to do anything, and clauses 17.7(a)(ii) and 17.7(a)(iii) shall not oblige any other party to do anything, which would or might in its reasonable opinion constitute a breach of:

(i)

any law or regulation;

(ii)

any fiduciary duty; or

(iii)

any duty of confidentiality.

(d)

If a party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with clauses 17.7(a)(i) and 17.7(a)(ii) (including, for the avoidance of doubt, where clause 17.7(c) applies), then such party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the party in question provides the requested confirmation, forms, documentation or other information.

17.8

FATCA Deduction

(a)

Each party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.

(b)

Each party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the party to whom it is making the payment and, in addition, shall notify the Borrower and the Agent and the Agent shall notify the other Finance Parties.

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18	Increased Costs

18.1

Increased Costs

(a)

Subject to clause 18.3 (“Exceptions”) the Borrower shall, within three Business Days of a demand by the Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of:

(i)

the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation; or

(ii)

compliance with any law or regulation,

made after the date of this agreement. This includes any law or regulation with regard to capital adequacy, prudential limits, liquidity, reserve assets or Tax.

(b)

In this agreement, “ Increased Costs ” means:

(i)

a reduction in the rate of return from a Facility or on a Finance Party’s (or its Affiliate’s) overall capital (including as a result of any reduction in the rate of return on capital as more capital is required to be allocated);

(ii)

an additional or increased cost; or

(iii)

a reduction of any amount due and payable under any Finance Document,

which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that Finance Party having entered into its Commitment or funding or performing its obligations under any Finance Document.

18.2

Increased Costs claim

(a)

A Finance Party intending to make a claim pursuant to clause 18.1 (“Increased costs”) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Borrower.

(b)

Each Finance Party shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs.

18.3

Exceptions

Clause 18.1 (“Increased Costs”) does not apply to the extent that any Increased Cost is:

(a)

attributable to a Tax Deduction required by law to be made by an Obligor;

(b)

attributable to a FATCA Deduction required to be made by a party;

(c)

compensated for by clause 17.3 (“Tax indemnity”) (or would have been compensated for under clause 17.3 (“Tax indemnity”) but was not so compensated solely because any of the exclusions in paragraph (b) of clause 17.3 (“Tax indemnity”) applied);

(d)

attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation;

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(e)

attributable to the implementation or application of or compliance with the “International Convergence of Capital Measurement and Capital Standards, a Revised Framework” published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this agreement (“ Basel II ”) (but excluding any amendment arising out of Basel III) or any other law or regulation which implements Basel II (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates); or

(f)

incurred more than 180 days before the relevant Finance Party makes the claim for that Increased Cost (it being acknowledged that to the extent the occurrence of an event in clause 18.1(a) (“Increased costs”) is a retrospective change in law, the event giving rise to the claim is the change in law).

19	Other indemnities

19.1

Currency indemnity

(a)

If any sum due from an Obligor under the Finance Documents (a “ Sum ”), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the “ First Currency ”) in which that Sum is payable into another currency (the “ Second Currency ”) for the purpose of:

(i)

making or filing a claim or proof against that Obligor;

(ii)

obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,

(b)

that Obligor shall as an independent obligation, within three Business Days of demand, indemnify each Finance Party to whom that Sum is due against any Cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum.

(c)

Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.

(d)

Payment of an amount in a currency other than the due currency does not discharge that amount except to the extent of the amount of the due currency actually obtained when the recipient converts the amount received into the due currency.

19.2

Other indemnities

The Borrower shall (or shall procure that an Obligor will), within three Business Days of demand, indemnify each Finance Party against any cost, expense, loss or liability (including legal fees) incurred by that Finance Party as a result of:

(a)

the occurrence of any Event of Default;

(b)

any information prepared by an Obligor under or in connection with the Finance Documents or the transactions they contemplate being or being alleged to be misleading or deceptive in any respect;

(c)

any enquiry, investigation, subpoena (or similar order) or litigation with respect to any Obligor or with respect to the transactions contemplated or financed under this agreement;

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(d)

a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, expense, loss or liability arising as a result of clause 33 (“Sharing among the Finance Parties”) or clause 7 (“Sharing among the Beneficiaries”) of the Security Trust Deed;

(e)

funding, or making arrangements to fund, its participation in a Utilisation requested by the Borrower in a Utilisation Notice but not made by reason of the operation of any one or more of the provisions of this agreement (other than by reason of the default of that Finance Party);

(f)

issuing or making arrangements to issue a Letter of Credit requested by the Borrower in a Utilisation Notice but not issued by reason of the operation of any one or more of the provisions of this agreement (other than by reason of the default of that Finance Party);

(g)

a Utilisation (or part of a Utilisation) not being prepaid in accordance with a notice of prepayment given by the Borrower; or

(h)

an amount being paid or payable by that Finance Party to the Agent or another Finance Party under clause 29 (“Funding the Agent”).

19.3

Indemnity to the Agent

The Borrower shall promptly indemnify the Agent against any cost, expense, loss or liability incurred by the Agent (acting reasonably) as a result of:

(a)

investigating any event which it reasonably believes is a Default;

(b)

acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or

(c)

(after consulting with the Borrower) instructing lawyers, accountants, tax advisers, surveyors or other experts or professional advisers as permitted under this agreement.

20	Mitigation by the Finance Parties

20.1

Mitigation

(a)

Each Finance Party shall, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or its Commitment being cancelled pursuant to, any of clause 8.6 (“Illegality—Loans”) or, in respect of an Issuing Bank, clause 8.7 (“Illegality – Letters of Credit”), clause 17 (“Tax gross up and indemnities”) (other than clause 17.6 (“Indirect Taxes”)) or clause 18 (“Increased Costs”) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.

(b)

Clause 20.1(a) does not in any way limit the obligations of any Obligor under the Finance Documents.

20.2

Limitation of liability

(a)

The Borrower shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under clause 20.1 (“Mitigation”).

(b)

A Finance Party is not obliged to take any steps under clause 20.1 (“Mitigation”) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.

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21	Costs and expenses

21.1

Transaction expenses

The Borrower shall promptly on demand pay the Finance Parties the amount of all costs and expenses (including legal fees) reasonably incurred by any of them in connection with the negotiation, preparation, printing, execution and registration of:

(a)

this agreement and any other documents referred to in this agreement; and

(b)

any other Finance Documents executed after the date of this agreement.

21.2

Amendment and other costs

If an Obligor requests an amendment, waiver or consent to a Finance Document, the Borrower shall, within three Business Days of demand, reimburse the Agent and each Lender for the amount of all costs and expenses (including agreed legal fees) reasonably incurred by the Agent or the Lender in responding to, evaluating, negotiating or complying with that request or requirement.

21.3

Enforcement costs

The Borrower shall, within three Business Days of demand, pay to each Finance Party the amount of all costs and expenses (including legal fees) incurred by that Finance Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document.

Part 6 Representations and warranties, undertakings, Events of Default and Review Event

22	Representations and warranties

22.1

Representations and warranties

Each Obligor makes the representations and warranties set out in this clause 22.1 to each Finance Party on the date of this agreement (except in relation to matters disclosed to, and accepted by, the Agent in writing).

(a)

( Status )

It has been incorporated or formed in accordance with the laws of its place of incorporation or formation, is validly existing under those laws and has power and authority to own its assets and carry on its business as it is now being conducted.

(b)

( Power )

It has power to enter into the Transaction Documents to which it is a party, to comply with its obligations under them and exercise its rights under them.

(c)

( No contravention )

The entry by it into, its compliance with its obligations and the exercise of its rights under, the Transaction Documents to which it is a party do not and will not conflict with:

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(i)

its constituent documents or cause a limitation on its powers or the powers of its directors to be exceeded;

(ii)

any law binding on or applicable to it or its assets; or

(iii)

any document or agreement binding on or applicable to it or its assets or constitute a review event, event of default, termination, cash cover requirement, prepayment or similar event (each however described) under any such document or agreement where this has had or is likely to have a Material Adverse Effect.

(d)

( Authorisations )

Each of the following is in full force and effect:

(i)

each Major Authorisation;

(ii)

each Authorisation necessary for it to enter into the Transaction Documents to which it is a party, to comply with its obligations and exercise its rights under them, and to allow them to be enforced; and

(iii)

each other Authorisation necessary for it to carry on any business it conducts to the extent that failure to obtain, comply with or maintain that Authorisation would be likely to have a Material Adverse Effect.

(e)

( Validity of obligations and ranking )

(i)

Its obligations under each Transaction Document to which it is a party are valid and binding and are enforceable against it in accordance with its terms subject to any stamping and registration requirements, applicable equitable principles and laws generally affecting creditors’ rights.

(ii)

Each Security creates the Security Interests which that Security purports to create and those security interests are valid and effective subject to any stamping and registration requirements, applicable equitable principles and laws generally affecting creditors’ rights.

(iii)

Subject to any stamping and registration requirements, applicable equitable principles and laws generally affecting creditors’ rights, each Security Interest created or expressed to be created under the Security has the priority expressed in the relevant Security and is not subject to any prior ranking or pari passu ranking Security which is not a Permitted Security Interest.

(iv)

It benefits by entering into the Transaction Documents to which it is a party.

(v)

The Secured Property is not subject to any Security Interest other than a Permitted Security Interest.

(vi)

Its payment obligations under the Finance Documents rank at least equally with the claims of all its other unsecured and unsubordinated creditors (other than obligations mandatorily preferred by law applying to debtors generally).

(vii)

Each Material Contract is in full force and effect.

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(f)

( Real property )

It does not have any interest in real property other than leasehold rights under each SA Ground Lease, leasehold rights in respect of the AustralAsia rail corridor between Adelaide and Darwin described in the AustralAsia Railway Project Concession Deed and, in the case of GWA, its freehold interest in the Alice Springs Freight Terminal (Lot 10459 Town of Alice Springs).

(g)

( No Default )

(i)

No Event of Default is continuing or would result from any Utilisation being provided.

(ii)

To the best of its knowledge and belief, no Potential Event of Default (which has not otherwise been notified by the Borrower to the Agent) is continuing.

(iii)

It is not in breach of a law or document or agreement binding on or applicable to it or its assets and no review event, event of default, termination, cash cover requirement, prepayment or similar event (each however described) exists under any such document or agreement, which has had, or is likely to have, a Material Adverse Effect.

(h)

( No breach of law )

It has complied in all respects with all laws binding on or applicable to it or its assets where a failure to comply is likely to have a Material Adverse Effect.

(i)

( Related party transactions )

No Obligor has contravened or will contravene Chapter 2E (related parties) or Part 2J.3 (financial assistance) of the Corporations Act (or any equivalent legislation in any other jurisdiction) by entering into any Transaction Document or participating in any transaction in connection with a Transaction Document.

(j)

( Accounts )

(i)

The most recent audited financial statements given to the Agent under clause 23.1(a)(i) (“Annual financial statements”) comply with all Accounting Principles (except to the extent disclosed in them) and with all applicable law.

(ii)

The most recent audited financial statements and quarterly management accounts delivered under clauses 23.1(a)(i) (“Annual financial statements”) or 23.1(a)(ii) (“Quarterly management accounts”), respectively, give a true and fair view (if audited) or fairly present (if unaudited) (as applicable) the matters with which they deal as at the date they were prepared.

(k)

( Ownership of assets )

It is the sole beneficial owner, licensee or lessee of (other than if it acts in the capacity of a trustee), or is entitled to use, all material assets necessary for the conduct of its business.

(l)

( Solvency )

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It is not Insolvent.

(m)

( Litigation )

There is no current, pending or (to the best of its knowledge) threatened proceeding, investigation or claim affecting it or any of its assets before a court, authority, commission or arbitrator in which a decision against it is likely and which (either alone or together with other decisions) would be likely to have a Material Adverse Effect.

(n)

( Conduct of business )

(i)

It has not carried on any business or activities other than the Core Business and as contemplated by the Transaction Documents to which it is a party except to the extent expressly permitted by the terms of the Transaction Documents.

(ii)

It has not incurred any liabilities (actual or contingent), obligations or commitments save those arising under or in connection with the ordinary course of its business or administrative, incidental or ancillary liabilities as are necessary to maintain its corporate existence.

(o)

( Accuracy of information )

To the best of its knowledge and belief having made due enquiry:

(i)

all written factual information disclosed by it to any Finance Party in connection with the Finance Documents is true, accurate and correct in all material respects and not incorrect or misleading (whether by omission or otherwise) in any material respect as at the date it was provided or as at the date (if any) at which it was stated and it has not omitted to disclose any material facts known to it in connection with the Finance Documents;

(ii)

all financial projections provided in writing (including the Financial Model) were, as at the date provided, prepared in good faith, on the basis of the most recently available information and on the basis of assumptions believed by it to be reasonable (it being understood that such projections are subject to significant uncertainties and contingencies, many of which are beyond the control of the Obligors and that no assurance can be given that the projections will be realised); and

(iii)

all copies of documents (including the latest audited financial statements) given by it or on its behalf to the Agent are true and complete copies as at the date they were given, unless expressly specified otherwise as at the time provided to the Agent. Where such documents were entered into before Completion under the Share Sale Agreement and were received from the Vendor prior to Financial Close (and to which no Obligor is a party), it is not aware of any reason to doubt that such information is true in all material respects and not incorrect or misleading in any material respect as at the date it was given to the Agent.

(p)

( No trustee or immunity )

(i)

It does not enter into any Finance Document or hold any property as trustee.

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(ii)

Neither it nor its assets has immunity from the jurisdiction of a court or from legal process.

(q)

( Tax )

On and from Financial Close, it has:

(i)

promptly filed, or caused to be filed, all tax returns, business activity statements and other tax filings which are required to be filed under applicable Tax law;

(ii)

no claims asserted against it with respect to Taxes (other than Contested Taxes); and

(iii)

paid all Taxes and registration fees payable by it (other than Contested Taxes).

(r)

( Tax consolidation )

If it is a member of a Tax Consolidated Group, it is a member of a Tax Consolidated Group for which the Head Company is G&W Australia Holdings LP (ABN 30 124 868 215) and each member of that Tax Consolidated Group is party to a valid Tax Sharing Arrangement and Tax Funding Arrangement.

(s)

( Share and unit capital ) Subject to sub-paragraphs (iii) and (iv):

(i)

the equity capital of each Obligor is fully represented by the shares or units, as applicable, issued in respect of it and constituting part of the Secured Property;

(ii)

there is no agreement, arrangement or understanding under which further shares, units or other Marketable Securities, as applicable, with rights of conversion to shares or units in an Obligor (other than Hold Co) may be issued to any person other than a person who has, or will, contemporaneously with the issue of such shares or units, as applicable, provide a Security Interest over such shares in favour of the Security Trustee;

(iii)

in the case of the Borrower, from the date of Financial Close it is the majority owner (directly or indirectly) of the issued shares in the Freightliner Entities, those shares being owned in the proportions set out in the most recent Group Structure Diagram delivered to the Agent. Any shares, units or other Marketable Securities issued to a Minority Investor in a Freightliner Entity do not constitute part of the Security in favour of the Security Trustee; and

(iv)

in the case of an Obligor which directly owns shares, units or other Marketable Securities in a Dormant Entity, those shares, units or other Marketable Securities do not constitute part of the Security.

(t)

( Group Structure Diagram )

(i)

Assuming completion of the Transaction and registration of the transfer of shares in GRail has occurred, the Group Structure Diagram delivered to the Agent prior to Financial Close is true and correct in all material respects and does not omit any material information or details.

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(ii)

After completion of the Transaction and registration of the transfer of shares in GRail, the most recent Group Structure Diagram delivered to the Agent is true, complete and accurate in all material respects and does not omit any material information.

(u)

( No reliance )

(i)

It has entered into the Finance Documents to which it is a party without relying on any Finance Party or Affiliate of any Finance Party (in whatever capacity) or their advisers or on any representation, warranty, statement, undertaking or conduct of any kind made by any of them or on their behalf except as expressly set out in the Finance Documents.

(ii)

It has obtained its own tax and legal advice on the Finance Documents and the transactions in connection with them.

(v)

( No failure to disclose )

It has not withheld from any Finance Party any information known to it (having made all reasonable enquiries) and reasonably believed by it to be material to the decision of that Finance Party to enter into the Finance Documents to which that Finance Party is a party.

(w)

( Marketable Securities )

With respect to any Marketable Securities secured by it under the Security:

(i)

the Marketable Securities are fully paid;

(ii)

it has disclosed to the Security Trustee the details of all Marketable Securities held by it; and

(iii)

it has provided the Security Trustee with all documents and information necessary for the Security Trustee to complete a valid and fully effective transfer of the Marketable Securities.

22.2

Repetition

The Repeating Representations are deemed to be made by each Obligor by reference to the facts and circumstances then existing on:

(a)

the date of each Utilisation Notice and each Utilisation Date;

(b)

each Interest Payment Date; and

(c)

the date on which an Additional Obligor delivers as Accession Deed (Additional Obligor) pursuant to clause 27 (“Change in Obligors”).

22.3

Reliance

Each Obligor acknowledges that each Finance Party has entered into this agreement in reliance on the representations and warranties in this clause 22.

23	Undertakings

The undertakings in this clause 23 remain in force from the date of this agreement for so long as any amount is outstanding to the Finance Parties under the Finance Documents or any Commitment is in force.

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Any reference in this clause 23 to an approval or consent of the Agent is a reference to an approval or consent of the Agent acting on the instructions of the Majority Lenders.

23.1

Information undertakings

(a)

( Accounts )

The Obligors agree to give the Agent the following (in sufficient copies for each Lender):

(i)

( Annual financial statements ) the audited consolidated annual financial statements of the Hold Co Group for each Financial Year, within 120 days after the end of that Financial Year;

(ii)

( Quarterly management accounts ) the unaudited quarterly management accounts (containing profit and loss, cash flow and balance sheet statements for that quarter) of the Hold Co Group, at the time each Compliance Certificate is provided under sub-paragraph (iii) below;

(iii)

( Compliance Certificates ) by no later than 45 days after each Calculation Date, a Compliance Certificate from the Borrower (signed by two Authorised Officers (including the CFO) of the Borrower):

(A)

setting out the DSCR and the Leverage Ratio, respectively, for the Calculation Period ending on the Calculation Date to which the Compliance Certificate relates and confirming whether or not the Financial Covenants have been met;

(B)

setting out (in reasonable detail) all workings and/or calculations supporting the conclusions made regarding compliance with the Financial Covenants as at the Calculation Date to which the Compliance Certificate relates; and

(C)

certifying that no Default or Review Event is subsisting.

The Compliance Certificate delivered in respect of a Calculation Date falling on 31 December in each year may be based on the quarterly management accounts delivered under sub-paragraph (ii) above with a reconciliation statement to be provided in respect of that Calculation Date at the time the annual financial statements are delivered under sub-paragraph (i) above;

(iv)

( Auditor confirmation ) written confirmation from the Hold Co Group’s auditor in relation to the Financial Covenants as shown in the Compliance Certificate delivered in respect of a Calculation Date falling on 31 December in each year, at the same time as the annual financial statements are delivered under sub-paragraph (i) above;

(v)

( Annual budget ) the annual budget for the Hold Co Group for the forthcoming Financial Year, within 30 days after the approval of that budget by the Obligor’s board of directors; and

(vi)

( Operational report ) an annual operational report, at the time the annual financial statements are delivered under sub-paragraph (i) above.

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(b)

( Other information )

The Obligors shall supply to the Agent (in sufficient copies for all the Lenders, if the Agent so requests):

(i)

( Change of Authorised Officers ) promptly, notice of any change in Authorised Officer of an Obligor signed by two directors or a director and a secretary of the Obligor and accompanied by a specimen signature of the new Authorised Officer;

(ii)

( Litigation ) full details of any current, pending or to its knowledge threatened proceeding, investigation or claim affecting an Obligor or any of its assets before a court, authority, commission or arbitrator that includes a claim against an Obligor which is reasonably likely to be adversely determined and, if adversely determined, would require payments by that Obligor in excess of $10,000,000;

(iii)

( Asset disposal ) notice of any sale or disposal of an Obligor’s assets where the proceeds of sale are in excess of $10,000,000 in any Financial Year;

(iv)

( Environmental liability ) notice of any event or circumstance existing or arising the result of which is that an Obligor will incur an environmental liability which does, or is likely to, impose a cost or liability in excess of $10,000,000 in aggregate;

(v)

( Native title or heritage claim ) notice of any native title, heritage claim or other adverse title claim against the Secured Property or against the assets and undertakings of an Obligor;

(vi)

( Default or Review Event ) promptly upon becoming aware, notice of any Default or Review Event and any step taken or proposed to remedy the event (unless the Obligor is aware that notification has already been given by another Obligor);

(vii)

( KYC ) any document or other information that the Agent requests (either for itself or another Finance Party) to enable the Agent or another Finance Party (or prospective Finance Party) to do any “know your customer” checks;

(viii)

( Group Structure Diagram ) an updated Group Structure Diagram to the extent that the most recent version given to the Agent is no longer correct;

(ix)

( Notices under Material Contracts ) any material notice given by a party to a Material Contract to another party including any notice concerning any amendment, breach or potential breach or any material waiver, consent or approval under such Material Contract;

(x)

( Amendments to Material Contracts ) a copy of any amendment to a Material Contract;

(xi)

( PPSA ) a copy of any material notices or correspondence of any kind delivered or received by it in relation to the Security to or from the Registrar (as defined in the PPSA) or from another secured party in respect of the Secured Property;

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(xii)

( Disputes ) notice of any material dispute between it and a Government Agency;

(xiii)

( Material Adverse Effect ) notice of an event or circumstance which is reasonably likely to have a Material Adverse Effect;

(xiv)

( Breach of law ) notice of any material breach of law or an Authorisation that is material to the operation of the Core Business;

(xv)

( Insurance ) notice of any cancellation, change (to coverage or otherwise) or reduction in an insurance policy maintained by an Obligor or any such insurance policy becoming void or voidable or any claim under such insurance policy in excess of $10,000,000;

(xvi)

( Permitted Acquisition ) notice of any Permitted Acquisition proposed to be undertaken in accordance with this agreement; and

(xvii)

( Other relevant information ) any other information concerning the financial position or business operations of the Obligors as requested by the Agent, acting reasonably.

23.2

Financial Covenants

(a)

Each Obligor shall ensure that:

(i)

( DSCR ) on each Calculation Date, the Debt Service Cover Ratio for the applicable Calculation Period is equal to or greater than 1.20:1; and

(ii)

( Leverage Ratio ) on each Calculation Date falling during the relevant period set out below, the Leverage Ratio is as follows:


Calculation Date falling in the following period		Leverage Ratio
1 January – 31 December 2017		Less than or equal to 5.25:1

1 January 2018 – 31 December 2018		Less than or equal to 4.75:1

1 January 2019 – 31 December 2019		Less than or equal to 4.50:1

1 January 2020 – 31 December 2020		Less than or equal to 4.50:1

1 January 2021 – 31 December 2021		Less than or equal to 4.25:1

(each a “ Financial Covenant ” and together the “ Financial Covenants ”).

(b)

The Financial Covenants will be calculated on a consolidated GWA Group basis.

(c)

For the purposes of calculating the Financial Covenants for any Calculation Period of less than 12 months:

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Project Monty - Syndicated Facility Agreement

(i)

EBITDA will be the aggregate of (1) for the members of the GWA Group (other than GRail), actual figures for the 12 month period ending on that Calculation Date and (2) for GRail, EBITDA for the 12 month period ending on that Calculation Date, based on actual revenues for any part of that period after the date of Financial Close and pro-forma revenues for any part of that period prior to Financial Close, and less actual costs; and

(ii)

Interest Expense will be tested on the basis of actual amounts as from Financial Close to the relevant Calculation Date but annualised for 12 months.

(d)

Nothing shall be construed as a waiver, or shall otherwise prejudice the rights of the Lenders under the Finance Documents, if after deemed compliance in respect of a Compliance Certificate, calculations reveal that the Financial Covenants have not actually been complied with. In those circumstances, the Lenders will have all rights under the Finance Documents as if the deemed compliance with the Financial Covenants had not occurred.

(e)

If the Borrower has made any voluntary prepayment under clause 8.4 (“Voluntary Prepayment”) during a Calculation Period ending on a relevant Calculation Date, then such voluntary prepayment will be disregarded for the purposes of determining whether the Financial Covenants in respect of that Calculation Date have been met.

23.3

Distributions

(a)

No Obligor shall make any Distribution for a relevant Quarter ending on a Calculation Date (or any previous period which have not been distributed) unless all of the conditions in sub-paragraphs (i) to (vi) (inclusive) below (the “ Distribution Conditions ”) are met:

(i)

the Borrower has delivered a Compliance Certificate to the Agent and:

(A)

the Agent has notified the Borrower that the Compliance Certificate is in a form and substance satisfactory to it;

(B)

at least 10 Business Days have elapsed from the date of delivery of the Compliance Certificate, and the Agent has not objected to the Compliance Certificate; or

(C)

if the Agent has objected to the Compliance Certificate, any dispute has been resolved between the Borrower and the Agent or, failing that, by expert determination;

(ii)

no Default or Review Event is continuing or will result from the making of the Distribution;

(iii)

the DSCR for the Calculation Period ending on that Calculation Date (as set out in the relevant Compliance Certificate) is as follows:


Calculation Date falling in the following period		DSCR
1 January – 31 December 2017		Equal to or greater than 1.50:1

1 January 2018 – 31 December 2018		Equal to or greater than 1.50:1

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Calculation Date falling in the following period		DSCR
1 January 2019 – 31 December 2019		Equal to or greater than 1.50:1

1 January 2020 – 31 December 2020		Equal to or greater than 1.60:1

1 January 2021 – 31 December 2021		Equal to or greater than 1.60:1

(iv)

the Leverage Ratio for the Calculation Period ending on that Calculation Date (as set out in the relevant Compliance Certificate) is as follows and will remain so immediately following the proposed Distribution:


Calculation Date falling in the following period		Leverage Ratio
1 January – 31 December 2017		Less than or equal to 4.50:1

1 January 2018 – 31 December 2018		Less than or equal to 4.25:1

1 January 2019 – 31 December 2019		Less than or equal to 4.00:1

1 January 2020 – 31 December 2020		Less than or equal to 3.75:1

1 January 2021 – 31 December 2021		Less than or equal to 3.75:1

(v)

if at that time a Concession Document has been terminated, the Borrower has demonstrated to the reasonable satisfaction of the Majority Lenders that for the Calculation Period ending on each Calculation Date following the termination of that Concession Document until at least 12 months after the latest Maturity Date:

(A)

the DSCR will be equal to or greater than 1.75:1; and

(B)

the Leverage Ratio will be as follows:


Calculation Date falling in the following period		Leverage Ratio
1 January – 31 December 2017		Less than or equal to 4.25:1

1 January 2018 – 31 December 2018		Less than or equal to 4.00:1

1 January 2019 – 31 December 2019		Less than or equal to 3.75:1

1 January 2020 – 31 December 2020		Less than or equal to 3.50:1

After 1 January 2021		Less than or equal to 3.25:1

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and

(vi)

such Distribution is not restricted under clause 24.3(h) (“Equity cure”).

(b)

Subject to satisfaction of the Distribution Conditions, the Obligors may make a Distribution at any time and without the consent of the Agent. However, if:

(i)

a Distribution of amounts from a Quarter ending on a 31 December Calculation Date is made (a “ December Quarter Distribution ”); and

(ii)

the reconciliation statement subsequently provided to the Agent under clause 23.1(a)(iii) (“Compliance Certificate”) confirms that the amount of the December Quarter Distribution exceeds the amount which would (had the figures in the reconciliation statement been available when the December Quarter Distribution was made) have been permitted to be paid as a Distribution (the amount paid in error being the “ Distribution Error Amount ”),

the Borrower must, within 5 Business Days after the delivery of the reconciliation statement, provide evidence to the Agent showing that an amount equal to the Distribution Error Amount has been repaid to the Borrower.

(c)

If the Borrower has made any voluntary prepayment under clause 8.4 (“Voluntary Prepayment”) during a Calculation Period ending on a relevant Calculation Date, then such voluntary prepayment will be disregarded for the purposes of determining whether the Distribution Conditions in respect of that Calculation Date have been met.

23.4

Accounting policy

(a)

If, in the reasonable opinion of the Borrower or the Majority Lenders, any changes to Accounting Principles after the date of this agreement materially alter the effect of the Financial Covenants, the Distribution Conditions or the related definitions, the Borrower and the Agent (acting on the instructions of the Majority Lenders) will negotiate in good faith to amend the relevant provisions and definitions in this agreement so that they have an effect comparable to that at the date of this agreement.

(b)

If the amendments are not agreed within 30 days (or any longer period agreed between the Borrower and the Agent (acting on the instructions of the Majority Lenders)) then the Borrower will provide any reconciliation statements necessary to enable calculations based on Accounting Principles as they were before those changes, and the changes will be ignored for the purposes of the Financial Covenants under clauses 23.2 (“Financial Covenants”) and (as applicable) 23.3 (“Distributions”).

23.5

General undertakings

(a)

( Authorisations )

Each Obligor must obtain, comply with and maintain:

(i)

each Major Authorisation; and

(ii)

each Authorisation necessary for it to enter into the Transaction Documents to which it is a party, to comply with its obligations

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and exercise its rights under them and to allow them to be enforced.

(b)

( Compliance with laws )

Each Obligor must comply with all laws binding on, or applicable to, it or its assets where failure to comply is likely to have a Material Adverse Effect (and it agrees to ensure that each person who uses or occupies its property does the same).

(c)

( Core business and assets )

Each Obligor must:

(i)

carry on its Core Business in a proper and efficient manner and not cease, or significantly change the general nature of, its Core Business; and

(ii)

maintain its assets in good working order and condition (ordinary wear and tear excepted) and correct any defect to the extent that failure to do so would be likely to have a Material Adverse Effect.

(d)

(I nsurance )

Each Obligor must:

(i)

obtain, comply with and maintain insurances with a reputable and independent insurer authorised to carry on business in Australia by the Australian Prudential Regulation Authority or in the United Kingdom by the UK Financial Services Authority in the manner and to the extent which is in accordance with prudent business practice having regard to the nature of the business and assets of the Obligors (including all insurance required by applicable law);

(ii)

ensure that any insurances are on terms customary for the relevant type of insurance (or on terms more favourable) and in the names of the Obligor and (if it is customary practice to name mortgagees as insureds, in the name of the Security Trustee) for their respective rights and interests;

(iii)

notify the Agent if anything happens which gives rise, or may give rise, to an insurance claim of $10,000,000 or more or if an insurance claim of $10,000,000 or more is refused either in whole or in part; and

(iv)

use the proceeds from any insurance claim in respect of loss or theft of, or damage to, assets to reinstate, or carry out work on, the affected assets.

(e)

( Taxes )

Each Obligor must:

(i)

pay all rates and Taxes due and payable by it, except for Contested Taxes;

(ii)

pay all rates and Contested Taxes which remain due and payable by it after final determination or settlement of the contest;

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(iii)

enforce all of its material rights under any Tax Sharing Arrangement and Tax Funding Arrangement to which it is a party in a manner consistent to that which a reasonable prudent person in its position would act as if the other parties to such arrangement were independent persons with whom the Obligor had dealt with at arm’s length;

(iv)

take all action available to it to ensure that any Tax Sharing Arrangement and Tax Funding Arrangement to which it is a party remains in full force and effect in all material respects; and

(v)

ensure that it is entitled to make payments in accordance with any Tax Sharing Arrangement and Tax Funding Arrangement to which it is a party.

(f)

( Environment )

Each Obligor must:

(i)

maintain procedures which are adequate to monitor:

(A)

its compliance with any obligations imposed on it under a Material Contract in relation to the Environment;

(B)

its compliance with Environmental Law; and

(C)

circumstances which may give rise to a claim, or to a requirement, of substantial expenditure by it in relation to Environmental Law or the cessation of, or material alteration to, its Core Business; and

(ii)

where there is any non-compliance with Environmental Law in any material respect, or circumstances under sub-paragraph (i)(C) above arise, use its best endeavours to promptly remedy them to the extent reasonably requested by the Agent.

(g)

( Material Contracts )

Each Obligor must:

(i)

comply in all material respects with each Material Contract to which it is a party where failure to do so would have a Material Adverse Effect and must not take or fail to take any action which would result in the termination of such Material Contract where such termination would have a Material Adverse Effect;

(ii)

do all things reasonably necessary to enforce all of its rights, powers and remedies under each Material Contract prudently and, while an Event of Default subsists, in accordance with the reasonable directions (if any) of the Agent (except where to so comply would put it in breach of any law or any direction or order issued under an Authorisation);

(iii)

not agree to amend any Material Contract or grant any waiver or consent in respect of a Material Contract, in each case where the amendment, waiver or consent would be materially adverse to the interests of the Lenders, without the prior consent of the Agent;

(iv)

in the case of GRail, if its consent is required under clause 27 (“Dealing with Mines and TOP NTK”) or clause 37

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(“Assignment”) of the Rail Haulage Agreement in order to permit Glencore Coal or the Guarantor (as defined therein) to assign, transfer, charge or take other actions specified in those clauses, not provide its consent without first obtaining the approval of the Agent (such approval not to be unreasonably withheld or delayed). For the avoidance of doubt, this sub-paragraph (iv) does not apply if GRail is obliged to provide its consent to such matters in accordance with the terms of the Rail Haulage Agreement and if GRail is so obliged to provide its consent, the Borrower must promptly notify the Agent accordingly; and

(v)

not assign any of its rights or transfer any of its rights and obligations under the Rail Haulage Agreement without the prior consent of the Agent except:

(A)

pursuant to the Security; or

(B)

to another Obligor, provided that the other Obligor becomes a party to the Financier Consent Deed.

(h)

( Hedging )

Each Obligor must ensure that:

(i)

the Borrower, within 10 Business Days after Financial Close, enters into and maintains Hedge Agreements so that:

(A)

until the 3rd anniversary of Financial Close, at least 75% (and a maximum of 100%) of the aggregate Finance Debt under the Term Loan Facilities is hedged against interest rate risk; and

(B)

after the 3rd anniversary of Financial Close, at least 50% (and a maximum of 100%) of the aggregate Finance Debt under the Term Loan Facilities is hedged against interest rate risk until at least the date falling 3 months prior to the Maturity Date for the Term Loan Facilities; and

(ii)

it does not enter into derivative transactions for purely speculative purposes without the prior consent of the Agent.

(i)

( Corporate existence )

Each Obligor:

(i)

must do everything necessary to maintain its corporate existence; and

(ii)

must not transfer its jurisdiction of incorporation or enter any merger or consolidation (except for the purposes of solvent reconstruction on terms approved by the Agent).

(j)

( Proper accounts )

Each Obligor must keep a complete and up to date register of assets and proper books of account that give a true and fair view of its financial position and the results of operations.

(k)

( Approved auditor )

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Each Obligor must ensure that its auditor is one of Deloitte, PricewaterhouseCoopers, Ernst & Young or KPMG or such other major international accounting firm approved by the Agent (such approval not to be unreasonably withheld or delayed).

23.6

Undertakings relating to Security and guarantees

(a)

( Existing inter-company security arrangements )

GWA must ensure that at all times while the Facilities remain outstanding, the Debt Financiers Tripartite Deed (2010) and the Debt Financiers Security, respectively, remain in full force and effect.

(b)

( Change of details )

Each Obligor must notify the Agent at least 14 days before:

(i)

that Obligor changes its name as recorded in a public register in its jurisdiction of incorporation or in its constituent documents; and

(ii)

any ACN or ARBN allocated to that Obligor changes, is cancelled or otherwise ceases to apply to it (or if it does not have any such applicable number, one is allocated, or otherwise starts to apply, to it); and

(iii)

that Obligor becomes trustee of a trust, or a partner in a partnership.

(c)

( Pari passu ranking )

Each Obligor must ensure that its obligations under each Finance Document to which it is a party rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.

(d)

( Excluded Contracts )

Each Obligor agrees that if it is a party to an Excluded Contract which prohibits or restricts the grant of security without the consent of a relevant counterparty to that Excluded Contract, the relevant Obligor will use commercially reasonable endeavours for a period of 120 days after Financial Close to obtain any required consents. However:

(i)

no Obligor will be required to act to its commercial detriment in seeking such consent (including paying any fee or other material amount to the relevant counterparty); and

(ii)

the failure by an Obligor to obtain such consents despite making such commercially reasonable endeavours will not give rise to an Event of Default.

(e)

( Obligor coverage test )

Hold Co must ensure that:

(i)

at all times the consolidated assets of the Obligors equals or exceeds 90% of the value of the total consolidated assets of the Hold Co Group;

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(ii)

the consolidated EBITDA of the Obligors for each Financial Year equals or exceeds 90% of the value of the consolidated EBITDA of the Hold Co Group (calculated on the same basis as EBITDA) for that Financial Year; and

(iii)

any entity which is a member of the Hold Co Group must, if required in order to comply with sub-paragraphs (i) and (ii) above:

(A)

become an “Obligor” under this agreement; and

(B)

satisfy the other requirements set out in clause 27.3 (“New Obligors”),

in each case within 20 Business Days of Hold Co becoming aware that sub-paragraphs (i) and (ii) above have ceased to be complied with.

(f)

( Dormant Entities )

Each Obligor must ensure that, at all times until each such entity is wound-up:

(i)

each Dormant Entity remains dormant and does not carry on any business activities; and

(ii)

no assets are transferred by an Obligor to a Dormant Entity and no liabilities are assumed by a Dormant Entity.

At such time as each Dormant Entity is wound up, the Borrower will notify the Agent accordingly.

(g)

( GWA (North) )

(i)

The Obligors must use commercially reasonable endeavours for a period of 6 months after Financial Close to obtain consent from AARC in order for GWA (North) to become an obligor under, and provide a guarantee and indemnity in respect of the Secured Money pursuant to, the Security Trust Deed (including, if required by the AARC, Hold Co providing a deed poll in favour of AARC (in place of GWI) as contemplated by section 33.9 of the AustralAsia Railway Project Concession Deed).

(ii)

No Obligor will be required to act to its commercial detriment in seeking such consent (including paying any fee or other material amount to AARC). The failure by the Obligors to obtain the required consent from AARC, despite taking such commercially reasonable endeavours, will not give rise to an Event of Default.

(iii)

If AARC’s consent is obtained, GWA (North) will promptly accede to the Security Trust Deed in the capacity as an “Obligor” in accordance with the terms of the Security Trust Deed.

For the purposes of this paragraph (g), each Finance Party acknowledges and agrees that:

(iv)

unless AARC’s consent is obtained, GWA (North) will not become an obligor under the Security Trust Deed or provide any guarantee or indemnity in respect of the Secured Money; and

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(v)

if AARC’s consent is obtained, upon GWA (North) becoming a an obligor under the Security Trust Deed, the guarantee and indemnity provided by GWA (North) in respect of the Secured Money will be limited as set out in clause 10.2 (“Maximum liability of GWA (North)”) of the Security Trust Deed.

23.7

Negative undertakings

(a)

( Disposal of assets )

No Obligor shall sell or otherwise dispose of, part with possession of, or create an interest in, any of the Secured Property or agree or attempt to do so (whether in one or more related or unrelated transactions) except for Permitted Disposals.

The Finance Parties will instruct the Security Trustee under the Security Trust Deed to provide a release from the Security of each asset permitted to be disposed of under this clause 23.7(a).

(b)

( Negative pledge )

No Obligor shall create or allow to exist a Security Interest over its assets other than a Permitted Security Interest.

(c)

( Guarantees )

No Obligor shall provide any guarantee in favour of any person other than a Permitted Guarantee.

(d)

( Distributions )

No Obligor shall make a Distribution other than a Permitted Distribution.

(e)

( Security deposit )

No Obligor shall deposit or lend money on terms that it will not be repaid until its or another person’s obligations or indebtedness are performed or discharged other than in accordance with the Finance Documents or in relation to Subordinated Debt to an Obligor.

(f)

( Title retention )

No Obligor shall enter into an agreement with respect to the acquisition of assets on title retention terms other than in the ordinary course of business.

(g)

( Leasing )

No Obligor shall enter into any operating lease, Finance Lease or hire purchase arrangement, other than in the ordinary course of business or as permitted or contemplated under the Transaction Documents or the Material Contracts.

(h)

( Finance Debt )

No Obligor shall incur or permit to subsist any Finance Debt other than Permitted Financial Indebtedness.

(i)

( Financial Accommodation )

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No Obligor shall make available Financial Accommodation to or for the benefit of any person, other than Permitted Financial Accommodation.

(j)

( Acquisitions )

No Obligor will acquire any assets, shares or ownership interests other than a Permitted Acquisition.

(k)

( Joint Ventures )

No Obligor shall enter into any Joint Venture or make any investment (including by providing Financial Accommodation) in a Joint Venture other than a Permitted Joint Venture.

(l)

( Constitutions )

No Obligor shall amend its constitution, or permit it to be amended, in any way which would be likely to be adverse to the interests of the Finance Parties.

23.8

Refinancing Debt

(a)

Subject to clause 23.8(b), the Borrower may at any time, without the consent of the Finance Parties, enter into new finance documents for the purpose of raising Refinancing Debt to refinance (in whole or in part) any financial accommodation under this agreement or another Finance Document (as defined in the Security Trust Deed) as well as incur associated transaction fees, Costs (including Break Costs and swap close-out costs, to the extent applicable) in connection with that refinancing.

(b)

Except in the case of a full refinancing of all the Finance Debt under the Finance Documents, the following conditions will apply where the Borrower proposes to incur Refinancing Debt:

(i)

no Event of Default is subsisting or would result from incurring the Refinancing Debt;

(ii)

the Refinancing Debt must be incurred on arm’s length commercial terms;

(iii)

the provider(s) of the Refinancing Debt must rank pari passu with the Lenders under this agreement or (if so agreed by the provider(s) of the Refinancing Debt) may provide Subordinated Debt;

(iv)

if provided on a secured basis, the Refinancing Debt must not benefit from any Security Interest other than the Security and the providers of the Refinancing Debt must accede as Beneficiaries to (and in accordance with the terms of) the Security Trust Deed; and

(v)

the Refinancing Debt:

(A)

must not mature prior to the date that is 6 months after the latest Maturity Date of any then-existing Term Loan Facilities (which are not being refinanced);

(B)

must have a weighted average life to maturity not shorter than the remaining weighted average life to

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maturity of then-existing Term Loan Facilities (which are not being refinanced); and

(C)

must be incurred on terms (other than as to fees and margins) which are no more favourable to the provider(s) of the Refinancing Debt than those set out in the Finance Documents.

(c)

The Borrower may also enter into Hedge Agreements to hedge any interest rate risk relating to any Refinancing Debt which is incurred in accordance with this clause 23.8.

24	Events of Default

24.1

Events of Default

Each of the events or circumstances in this clause 24.1 is an Event of Default.

(a)

( Non payment )

An Obligor does not pay when due (or within 3 Business Days after the due date if that failure to pay is caused by administrative or technical error beyond the control of the Obligor) any amount payable by it under any Finance Document in the manner required under it.

(b)

( Financial Covenants )

Any Financial Covenant is not satisfied (subject to an Equity Cure being effected under clause 24.3 (“Equity cure”)).

(c)

( Failure to comply with other obligations )

An Obligor does not comply with any obligation under any Finance Document (other than non-payment or breach of Financial Covenant) and:

(i)

if the non-compliance can be remedied, does not remedy the non-compliance within 15 Business Days of the earlier of the Agent notifying the Borrower or the Obligor becoming aware of the non-compliance; or

(ii)

if the non-compliance cannot be remedied, does not overcome the effects of the non-compliance (to the satisfaction of the Agent (acting on the instructions of the Majority Lenders)) within 15 Business Days of the earlier of the Agent notifying the Borrower or the Obligor becoming aware of the non-compliance.

(d)

( Misrepresentation )

Any representation, warranty or statement made, or taken to be made, by or on behalf of an Obligor in a Finance Document is incorrect or misleading in any material respect when made or taken to be made and, if the circumstances giving rise to the misrepresentation can be remedied or overcome, the Obligor does not remedy or overcome them (to the satisfaction of the Agent (acting on the instructions of the Majority Lenders)) within 15 Business Days of the earlier of the Agent notifying the Borrower or the Obligor becoming aware of the non-compliance.

(e)

( Cross default )

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Any of the following occurs under the terms of any Finance Debt of an Obligor for amounts totalling more than $10,000,000 (or its foreign currency equivalent):

(i)

it is not satisfied when due (or by the end of any applicable grace period); or

(ii)

it is declared, or otherwise becomes or is capable of becoming, due before its stated maturity or expiry as a result of an event of default or other similar event (however described).

(f)

(I nsolvency )

(i)

An Obligor becomes Insolvent.

(ii)

An Obligor stops payment, ceases to carry on its business or a material part of it, or threatens to do either of those things, other than to carry out a reconstruction, reorganisation or amalgamation while solvent on terms approved by the Agent (acting on the instructions of the Majority Lenders).

(iii)

Distress is levied or a judgment, order or Security Interest is enforced, or becomes enforceable, against any asset of an Obligor for amounts totalling more than $10,000,000 (or its foreign currency equivalent).

(g)

( Rail Haulage Agreement )

Glencore Coal gives a Termination Notice to the Security Trustee under clause 6.4 (“Enforcing Party right to remedy”) of the Financier Consent Deed following the occurrence of a Termination Event.

For the purposes of this paragraph (g), Termination Notice and Termination Event each have the meaning given in the Financier Consent Deed.

(h)

( Voidable, repudiation or unlawful )

(i)

A Finance Document or any transaction in connection with it is or becomes (or is claimed to be by anyone other than a Finance Party) wholly or partly void, voidable or unenforceable.

(ii)

An Obligor rescinds or repudiates a Finance Document (or an Obligor or another party attempts or takes any step to do so).

(iii)

It is or becomes unlawful for an Obligor to comply with any of its obligations under the Finance Documents.

(i)

( Cessation of business )

An Obligor ceases to conduct its business without the prior written consent of the Agent (acting on the instructions of the Majority Lenders).

(j)

( Compulsory acquisition )

All or a material part of the property of an Obligor is compulsorily acquired by any Government Agency or an Obligor sells or divests itself of all or a material part of its property because it is required to do so by a Government Agency.

(k)

( Material judgment )

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A judgment is obtained against an Obligor for an amount exceeding $10,000,000 (or its foreign currency equivalent) and that judgement is not:

(i)

satisfied or stayed within 15 Business Days of the date for payment; or

(ii)

being appealed by an Obligor in good faith.

(l)

( Reduction in capital )

Without the consent of the Agent or as otherwise permitted under the Finance Documents, an Obligor takes any action to reduce its capital, buy back any of its shares or make any of its shares capable of being called up only in certain circumstances (such as by passing a resolution or calling a meeting to consider such a resolution).

(m)

( Material Adverse Effect )

An event occurs which has, or is likely to have (or a series of events occur which, together, have or are likely to have) a Material Adverse Effect.

24.2

Consequences of an Event of Default

On and at any time after the occurrence of an Event of Default which is continuing the Agent may, and will if so directed by the Majority Lenders, by notice to the Borrower take any (or any combination) of the following actions:

(a)

declare by notice to the Borrower that any of the Secured Money owing to the Lenders is either:

(i)

immediately due and payable, whereupon it will become immediately due and payable; or

(ii)

payable on demand, whereupon it will immediately become due and payable on demand by the Agent on the instructions of the Majority Lenders;

(b)

declare that cash cover in respect of each Letter of Credit is either:

(i)

immediately due and payable, whereupon it will become immediately due and payable; or

(ii)

payable on demand, whereupon it will immediately become due and payable on demand by the Agent on the instructions of the Majority Lenders;

(c)

declare by notice to the Borrower that the Lenders’ obligations specified in the notice are terminated and their Commitments specified in the notice are cancelled;

(d)

at the cost of the Borrower, appoint a firm of independent accountants or other experts to review and report to the Agent and the Lenders on the affairs, financial condition and business of any Obligor;

(e)

instruct the Security Trustee to exercise its rights under (and in accordance with the terms of) the Security Trust Deed or any Guarantee or Security; and/or

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(f)

take any other action (or instruct the Security Trustee to take any other action) permitted under any Finance Document.

24.3

Equity cure

(a)

Subject to this clause 24.3, the Borrower may cure a breach of a Financial Covenant by procuring that an additional equity contribution is made by a person which is not an Obligor to the Borrower (“ Additional Equity Contribution ”) in accordance with this clause 24.3.

(b)

If the Borrower intends to cure the breach of a Financial Covenant, it must deliver a notice (an “ Equity Cure Notice ”) to the Agent confirming that it intends to do so by no later than 5 Business Days after delivery of a Compliance Certificate which shows that a Financial Covenant has not been satisfied (the date of the Equity Cure Notice being, for the purposes of this clause 24.3, the “ Relevant Date ”).

(c)

If an Additional Equity Contribution is made, the Financial Covenants will be recalculated on a notional basis as if the Additional Equity Contribution had been made and an equivalent amount of Finance Debt outstanding under the Term Loan Facilities was the subject of a mandatory prepayment accordance with clauses 9.1(d) (“Mandatory prepayments”) and 9.2 (“Application of mandatory prepayments”) on the first day of the relevant Calculation Period for which the Financial Covenant has not been satisfied. For the avoidance of doubt, with respect to the recalculation of the Financial Covenants:

(i)

in the case of the DSCR, “Debt Service” (and not “CFADS”); and

(ii)

in the case of the Leverage Ratio, “Net Senior Debt” (and not “EBITDA”),

will be recalculated.

(d)

An Additional Equity Contribution may not be made:

(i)

more than three times during the first 5 years from Financial Close;

(ii)

in respect of consecutive Calculation Dates; or

(iii)

more than once in any 12 month period.

(e)

If the Borrower gives an Equity Cure Notice to the Agent, it must ensure that:

(i)

the Additional Equity Contribution is then made by no later than 15 Business Days after the Relevant Date (the “ Equity Cure Period ”);

(ii)

the Additional Equity Contribution, once made, is immediately applied in mandatory prepayment of the Term Loan Facilities in accordance with clauses 9.1(d) (“Mandatory prepayments”) and 9.2 (“Application of mandatory prepayments”); and

(iii)

an updated Compliance Certificate is delivered to the Agent by the end of the Equity Cure Period showing that the Financial Covenants have been satisfied (with supporting calculations for the Additional Equity Contribution).

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(f)

If the Borrower fails to provide an Equity Cure Notice to the Agent in accordance with paragraph (b) above or, having given the Agent an Equity Cure Notice, fails to comply with paragraph (e) above, an Event of Default will subsist under clause 24.1(b) (“Financial Covenants”).

(g)

The proceeds of an Additional Equity Contribution will only affect the recalculation of the Financial Covenants for the purposes of the Event of Default under clause 24.1(b) (“Financial Covenants”) and will not be taken into account in calculating any other ratios or covenants which may have been tested on or before the Calculation Date in respect of which an Additional Equity Contribution was made.

(h)

If the Borrower exercises its right under and in accordance with this clause 24.3 to cure a breach of a Financial Covenant, no Distribution may be made before the date of delivery of a Compliance Certificate for the Calculation Date immediately following the Calculation Date on which a Financial Covenant was not satisfied and in respect of which the Equity Cure has been effected.

24.4

Clean-up Period

(a)

Despite any other provision in a Finance Document, during a period commencing on the date of Financial Close and ending on the date falling 90 days after Financial Close (or in the case of any other Permitted Acquisition, beginning on the date of completion for that acquisition and ending 90 days after that date) (the “ Clean-up Period ”), an Event of Default under clauses 24.1(c) (“Failure to comply with other obligations”) or 24.1(d) (“Misrepresentation”) (other than any Major Default or in respect of a Major Representation under those clauses) with respect to an Obligor will not be taken to be an Event of Default if:

(i)

it is capable of remedy (or its effect are capable of being overcome) before the end of the Clean-up Period and the Obligors are diligently pursuing that remedy; and

(ii)

the circumstances or events giving rise to it:

(A)

do not entitle the Vendor (or the seller under any Permitted Acquisition) to exercise (or the Vendor or seller has agreed in writing that it will not exercise) its rights to suspend or terminate the Share Sale Agreement (or the share sale agreement or sale and purchase agreement (howsoever described) in respect of a Permitted Acquisition);

(B)

were not known to any Obligor prior to Financial Close (or prior to the date of completion in respect of any Permitted Acquisition) and have not been approved or procured by any Obligor;

(C)

in the case of a Clean-up Period triggered by a Permitted Acquisition, the relevant Event of Default would not have occurred if that Permitted Acquisition had not been made; and

(D)

would not have a Material Adverse Effect.

(b)

If the relevant circumstances or events giving rise to the Event of Default are continuing after the last day of the Clean-up Period, this will constitute an Event of Default despite paragraph (a) above (and without prejudice to the rights and remedies of the Lenders).

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(c)

The Borrower must promptly notify the Agent of any event or circumstance that would have constituted an Event of Default but for this clause 24.4.

24.5

LC cash cover

Each Issuing Bank shall place any cash cover it receives in relation to an outstanding Letter of Credit into an account in the name of the Borrower and in respect of which the following conditions must be met:

(a)

the account is with the Issuing Bank for which that cash cover is to be provided; and

(b)

until no amount is or may be outstanding under that Letter of Credit, the Issuing Bank may, subject to the terms of the Finance Documents, apply (including by combination of accounts or set off), amounts due and payable to it under this agreement in respect of that Letter of Credit.

25	Review Event

25.1

Review Event

A Review Event will occur if:

(a)

a person (other than GWI or the Investor) obtains beneficial ownership (directly or indirectly) of 50.1% or more of the issued ordinary shares in Hold Co; or

(b)

GWI ceases to have the right to appoint at least half of the number of representatives to the management committee of G&W Australia Holdings LP (ABN 30 124 868 215); or

(c)

GWI ceases to hold (directly or indirectly) at least a 40% interest in G&W Australia Holdings LP (ABN 30 124 868 215),

(each of the events in paragraphs (a), (b) and (c) above being a “ Change of Control Review Event ”); or

(d)

the Rail Haulage Agreement is terminated (other than on expiry of its terms and satisfaction of all of the obligations under the Rail Haulage Agreement) as a result of GRail exercising its termination rights under clause 35.1 (“GRail’s right to terminate”) of the Rail Haulage Agreement (a “ RHA Review Event ”).

25.2

Consequences of a Review Event

(a)

Following the occurrence of a Review Event, the Borrower and the Agent must consult in good faith for 45 Business Days (or such longer period as the Agent (acting on the instructions of the Majority Lenders) may agree) (the “ Stand Still Period ”) in relation to the Review Event and the consequences of that Review Event under the Finance Documents (including, in the case of a Change of Control Review Event, any necessary amendments to the Finance Documents to remedy or overcome the consequences of the Review Event or, in the case of a RHA Review Event, the terms of any proposed agreement to replace the Rail Haulage Agreement).

(b)

If, at the end of the Stand Still Period, a Lender (such Lender being a “ RE Non Consenting Lender ”) has not:

(i)

in the case of a Change of Control Review Event:

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(A)

agreed to any necessary amendments to the Finance Documents to remedy or overcome the consequences of the Review Event; or

(B)

approved the event that resulted in the Review Event occurring and agreed that the Review Event no longer subsists; or

(ii)

in the case of a RHA Review Event and subject to clause 25.4 (“RHA Review Event criteria”), approved the terms of any proposed agreement to replace the Rail Haulage Agreement,

that RE Non Consenting Lender may give a notice to the Agent and the Borrower on the last day of the Stand Still Period confirming that it does not wish to continue to participate in the Facilities. As between the Obligors and each other Lender which has provided its agreement or approval to the relevant matters under this clause 25.2(b), the Review Event will cease to apply.

The Agent shall promptly notify the other Lenders if it receives a notice from a RE Non Consenting Lender under this paragraph (b).

(c)

Subject to clause 25.3 (“Conditions”), if a RE Non Consenting Lender notifies the Borrower under clause 25.2(b) that it does not wish to continue to participate in the Facilities, it will not be obliged to participate in any further Utilisations (other than a Rollover Loan) and:

(i)

the Borrower will be entitled, at any time up to (and including) the last day of the relevant RE Transfer Period and provided that it gives at least 10 Business Days’ prior written notice to the Agent and the RE Non Consenting Lender, to require that the RE Non Consenting Lender transfer all of its rights and obligations (in its capacity as a Lender) under the Finance Documents (and the RE Non Consenting Lender will so transfer) at par to a replacement Lender selected by the Borrower which must (unless the Agent otherwise consents) be a Qualifying Transferee; or

(ii)

if the RE Non Consenting Lender’s rights and obligations under the Finance Document (as a Lender) have not otherwise been transferred under sub-paragraph (i), the Borrower must, by giving at least 10 Business Days’ prior written notice to the Agent and the RE Non Consenting Lender, repay the RE Non Consenting Lender’s proportion of the principal amount outstanding of each Loan at par by no later than the last day of the relevant RE Repayment Period. The Commitments of the relevant RE Non Consenting Lender will be automatically reduced to zero on the date that the Borrower makes the required payment to that RE Non Consenting Lender under this sub-paragraph (ii).

The Agent shall promptly notify the other Lenders if it receives a notice from the Borrower under this paragraph (c).

(d)

If the Borrower exercises its rights under clause 25.2(c)(i):

(i)

the RE Non Consenting Lender and the replacement Lender will comply with all the procedures and steps (including the execution of a Transfer Certificate) under the Finance Documents to which the RE Non Consenting Lender is a party in the capacity as a Lender in order to transfer the rights and

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obligations of the RE Non Consenting Lender under the Finance Documents to the replacement Lender; and

(ii)

if the RE Non Consenting Lender is an Issuing Bank, all Letters of Credit issued by the RE Non Consenting Lender must be returned to the RE Non Consenting Lender and cancelled and the replacement Lender will issue replacement Letters of Credit.

(e)

If the Borrower is required to repay the RE Non Consenting Lender’s participation under the Facilities pursuant to clause 25.2(c)(ii), the Borrower must by no later than the last day of the relevant RE Repayment Period:

(i)

repay the RE Non Consenting Lender’s proportion of the principal amount outstanding of each Loan at par; and

(ii)

if the RE Non Consenting Lender is an Issuing Bank, ensure that:

(A)

all Letters of Credit issued by the RE Non Consenting Lender are returned to the RE Non Consenting Lender and cancelled; and/or

(B)

cash cover is provided to the RE Non Consenting Lender in relation to the principal amount outstanding of all Letters of Credit issued by the RE Non Consenting Lender which have not been returned and cancelled and which will remain outstanding after the RE Non Consenting Lender ceases to be a Lender.

(f)

If the terms of clause 25.2(c) and clause 25.2(d) or 25.2(e) (as applicable) are complied with, the RE Non Consenting Lender will cease to be a Lender.

(g)

If a RE Non Consenting Lender which is replaced or repaid in accordance with this clause 25.2 is also a Swap Counterparty (or its Affiliate is a Swap Counterparty) under the Security Trust Deed, the obligations of the RE Non Consenting Lender (or its Affiliate) as a Swap Counterparty may be novated, closed out or terminated subject to the terms of clause 14 (“Hedging arrangements”) of the Security Trust Deed.

25.3

Conditions

If the Borrower exercises its rights under clause 25.2 (“Consequences of a Review Event”) to replace or repay (as applicable) a RE Non Consenting Lender:

(a)

neither the Agent nor any Lender will have any obligation to find a replacement Lender. However, a RE Non Consenting Lender must co-operate with, and provide all reasonable assistance to, the Borrower in order to facilitate any transfer to a replacement Lender;

(b)

the Borrower must ensure that all accrued but unpaid interest, fees, Costs and (if applicable) Break Costs owing to the RE Non Consenting Lender are paid;

(c)

in no event shall the RE Non Consenting Lender who is replaced or repaid be required to pay or surrender any of the fees received by it pursuant to the Finance Documents prior to it becoming a RE Non Consenting Lender;

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(d)

the RE Non Consenting Lender will only be obliged to transfer its rights and obligations to a replacement Lender once the Agent is satisfied that it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to that transfer; and

(e)

if the RE Non Consenting Lender is also the Agent, the Borrower may not replace that person in its capacity as Agent.

25.4

RHA Review Event criteria

Each Lender acknowledges and agrees that, if a RHA Review Event occurs, it will not unreasonably withhold or delay its approval of any proposed agreement to replace the Rail Haulage Agreement (“ RHA Replacement Contract ”) if:

(a)

the RHA Replacement Contract is with a counterparty of similar credit standing to Glencore Coal and with a parent company guarantee from an entity of similar credit standing to the Glencore Guarantor (as defined in the Rail Haulage Agreement) or with other form of equivalent credit enhancement or collateral;

(b)

the RHA Replacement Contract has a tenor at least equal to the remaining term of the Rail Haulage Agreement prior to its termination;

(c)

the RHA Replacement Contract is on substantially similar terms to the Rail Haulage Agreement and/or arm’s length current market terms at that time for contracts of that nature;

(d)

the counterparty to the RHA Replacement Contract has entered into (or unconditionally agreed to enter into) a tripartite agreement with the Security Trustee on terms similar to the Financier Consent Deed;

(e)

the Borrower provides evidence to the Lenders showing that the entry into the RHA Replacement Contract will provide a similar revenue profile over a period of time at least equal to the remaining term of the Rail Haulage Agreement prior to its termination; and

(f)

the Borrower delivers to the Agent an updated Financial Model:

(i)

where the only values updated from the then-current Financial Model immediately prior to the termination of the Rail Haulage Agreement are those reflecting the loss of revenue under the Rail Haulage Agreement, any reduction in the outstanding Finance Debt under the Facilities due to the RHA Prepayment Amount being applied in mandatory prepayment in accordance with clauses 9.1(h) (“Mandatory prepayments”) and 9.2 (“Application of mandatory prepayments”) and the revenues and other terms of the RHA Replacement Contract; and

(ii)

which shows that, as a result of the matters in sub-paragraph (i) above, the Leverage Ratio on each Calculation Date after the RHA Review Event has occurred will be less than or equal to the Leverage Ratio on each such Calculation Date as set out in the Bank Base Case Financial Model.

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Part 7 Change to the Parties

26	Change in Lenders

26.1

Lender may assign or novate

An existing Lender (“ Existing Lender ”) may:

(a)

assign some or all of its rights; or

(b)

transfer by novation some or all of its rights and obligations,

under the Finance Documents to another bank or financial institution or to a trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets (including credit derivatives) (“ New Lender ”) provided it does so in accordance with this clause 26 and provided there will be at least two Lenders after doing so.

26.2

Permitted assignment or transfer

(a)

Prior to the date of Financial Close, no Original Lender may assign any of its rights or transfer any of its rights and obligations without the prior written consent of the Borrower.

(b)

After Financial Close, a Lender may assign all or part of its rights or transfer by novation all or part of its rights or obligations under the Finance Documents with the prior consent of the Borrower. However, the consent of the Borrower will not be required if:

(i)

the assignment or transfer is to an existing Lender or an Affiliate of an existing Lender (provided such Affiliate is not a Distressed Debt Fund or a Competitor of the GWA Group);

(ii)

the assignment or transfer is to a securitisation or funding vehicle where the Existing Lender remains the lender of record and retains all voting rights;

(iii)

the proposed Lender is an Approved Lender; or

(iv)

subject to clause 26.2(d), an Event of Default is continuing.

(c)

If Borrower consent is required in respect of a proposed assignment or transfer by an Existing Lender, that consent must not be unreasonably withheld or delayed and the Borrower will be deemed to have given its consent 10 Business Days after the Existing Lender has requested it unless consent is expressly refused by the Borrower within that time. This paragraph (c) does not apply to a proposed assignment or transfer to a Distressed Debt Fund or to a Competitor of the GWA Group, in which case, subject to paragraph (d) below, the express consent of the Borrower is required and such consent may be withheld in the Borrower’s absolute discretion.

(d)

An Existing Lender may not (without the Borrower’s prior consent) assign any of its rights or transfer any of its rights and obligations or otherwise enter into any arrangement or deal with all or any part of its rights and obligations to any Distressed Debt Fund or to a Competitor of the GWA Group unless:

(i)

an Event of Default subsists under clause 24.1(a) (“Non payment”) or because an Obligor becomes Insolvent;

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(ii)

an Event of Default under clause 24.1(b) (“Financial Covenants”) subsists (which is not cured in accordance with clause 24.3 (“Equity cure”)); or

(iii)

any other Event of Default under clause 24.1 (“Events of Default”) has continued for at least 30 days (or, if earlier, the date that a Facility is accelerated).

(e)

Each Lender which wishes to assign its rights or transfer its rights and obligation in part (and not in full) must maintain a minimum aggregate Commitment (after the assignment or transfer occurs) of $25,000,000 across the Facilities at all times. However, this condition will not apply if an Event of Default is continuing.

(f)

In the case of Tranche B:

(i)

prior to the end of the Availability Period for that Facility, no Lender under that Facility will be permitted to assign its rights thereunder and must only transfer its rights and obligations under that Facility; and

(ii)

a Lender under Tranche B must transfer its rights and obligations in full (and not in part).

(g)

No assignment or transfer is permitted, at any time, to any person that is subject to any sanction by any governmental or intergovernmental organisation (including the OECD) or (in either case) is controlled by any person subject to sanction.

(h)

A Lender shall not assign or transfer rights to a person whom the officers of the Existing Lender involved on a day to day basis in the administration of the Facilities know to be an Offshore Associate of the Borrower.

(i)

Where an Existing Lender assigns rights but does not transfer by novation obligations, then for the purposes of clause 33 (“Sharing among the Finance Parties”), any amount received or recovered by the assignee will be taken to be received by that Existing Lender.

(j)

An assignment will only be effective once:

(i)

the Agent has completed all “know your customer” or other similar checks under all applicable laws and regulations which it is required to comply with in relation to the assignment to the New Lender (and the Agent will promptly notify the Existing Lender and the New Lender upon completion of the same); and

(ii)

the New Lender (if it is not already a Lender) becomes a party to the Security Trust Deed in the capacity as a Lender in accordance with the terms of the Security Trust Deed.

(k)

A transfer will only be effective:

(i)

if the procedure set out in clause 26.4 (“Procedure for transfer”) is complied with; and

(ii)

the Agent has completed all “know your customer” or other similar checks under all applicable laws and regulations which it is required to comply with in relation to the transfer to the New Lender (and the Agent will promptly notify the Existing Lender and the New Lender upon completion of the same).

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(l)

A Lender may not assign or transfer any of its rights or obligations under the Finance Documents or change its Facility Office, if the New Lender or the Lender acting through its new Facility Office would be entitled to exercise any rights under Clauses 8.6 (“Illegality—Loans”) or 8.7 (“Illegality – Letters of Credit”) as a result of circumstances existing as at the date the assignment, transfer or change is proposed to occur.

(m)

A Lender may not transfer any of its obligations during the period from when a Utilisation Notice is delivered until the Business Day after the Utilisation Date specified in that Utilisation Notice.

(n)

A Lender must bear its own Costs (including legal fees) in connection with any assignment or transfer.

26.3

Limitation of responsibility of Existing Lenders

(a)

Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:

(i)

the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents;

(ii)

the financial condition of any Obligor or any other person;

(iii)

the performance and observance by any Obligor or any other person of its obligations under the Finance Documents or any other documents; or

(iv)

the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,

and any representations or warranties implied by law are excluded.

(b)

Each New Lender confirms to the Existing Lender and the other Finance Parties that it:

(i)

has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its Affiliates and any other person in connection with its participation in Finance Documents as a Lender and has not relied exclusively on any information provided to it by the Existing Lender in connection with any Finance Document; and

(ii)

will continue to make its own independent appraisal of the creditworthiness of each Obligor and its Affiliates and any other person whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force.

(c)

Nothing in any Finance Document obliges an Existing Lender to:

(i)

accept a novation or re-assignment from a New Lender of any of the rights and obligations assigned or novated under this clause 26; or

(ii)

support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor or any other person of its obligations under the Finance Documents or otherwise.

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26.4

Procedure for transfer

(a)

Subject to the conditions set out in clause 26.2 (“Permitted assignment or transfer”), a novation is effected in accordance with paragraph (c) below when the Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to clause 26.5 (“Agent’s obligations on receipt of Transfer Certificate”), as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this agreement and delivered in accordance with the terms of this agreement, execute that Transfer Certificate.

(b)

Each party to this agreement other than the Existing Lender irrevocably authorises the Agent to execute any Transfer Certificate on its behalf.

(c)

On the Transfer Date:

(i)

to the extent that in the Transfer Certificate the Existing Lender seeks to novate its rights and obligations under the Finance Documents, each of the Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and their respective rights against one another under the Finance Documents shall be cancelled (being the “ Discharged Rights and Obligations ”);

(ii)

each of the Obligors and the New Lender shall assume obligations towards one another and will acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor and the New Lender have assumed and acquired the same in place of that Obligor and the Existing Lender;

(iii)

the Finance Parties and the New Lender will acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the New Lender been an Original Lender with the rights and obligations acquired or assumed by it as a result of the novation and to that extent each Finance Party and the Existing Lender shall be released from further obligations to each other under the Finance Documents;

(iv)

the New Lender shall (if it is not already a Lender) become a party to this agreement as a Lender and must become a party to the Security Trust Deed in the capacity as a Lender in accordance with the terms of the Security Trust Deed; and

(v)

for the purposes of this agreement rights and obligations will be taken to have been transferred under a Transfer Certificate even though it operates as a novation and rights and obligations are replaced rather than transferred.

(d)

If an Existing Lender transfers all of its rights and obligations as a Lender to a New Lender in accordance with this clause 26, the Existing Lender will cease to be a Lender.

26.5

Agent’s obligations on receipt of Transfer Certificate

If the Agent receives a Transfer Certificate in respect of a transfer which complies with this clause 26, it agrees to:

(a)

sign all the counterparts as Agent and on behalf of all parties to this agreement other than the Existing Lender;

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(b)

retain one counterpart and deliver the other counterparts to the Existing Lender and the New Lender;

(c)

notify the other Lenders and the Borrower of the transfer; and

(d)

notify the Security Trustee of the transfer for the purposes of the Security Trust Deed.

The Agent need not sign a Transfer Certificate until it is satisfied that it has done all “know your customer” and similar checks which it is required to do in connection with the transfer to the New Lender.

26.6

Security over Lenders’ rights

In addition to the other rights provided to Lenders under this clause 26, each Lender may without consulting with or obtaining consent from any Obligor, at any time charge, assign or otherwise create Security Interests in or over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of that Lender including:

(a)

any charge, assignment or other Security Interest to secure obligations to a federal reserve or central bank; and

(b)

in the case of any Lender which is a fund, any charge, assignment or other Security Interest granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities,

except that no such charge, assignment or Security Interest shall:

(i)

release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security Interest for the Lender as a party to any of the Finance Documents; or

(ii)

require any payments to be made by an Obligor other than or in excess of, or grant to any person any more extensive rights than, those required to be made or granted to the relevant Lender under the Finance Documents.

26.7

Assignment or novation fee

The New Lender shall, on the date upon which an assignment or transfer takes effect or a Transfer Certificate is delivered to the Agent under clause 26.3 (“Procedure for transfer”), pay to the Agent (for its own account) a fee of $5,000 (or $10,000 if an Event of Default is subsisting).

26.8

Borrower not required to pay additional amounts

If:

(a)

a Lender assigns or novates any of its rights or obligations under the Finance Documents or changes its Facility Office; and

(b)

as a result of circumstances existing at the date the assignment, novation or change occurs, an Obligor would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under clause 17 (“Tax gross up and indemnities”) or clause 18 (“Increased Costs”),

then the New Lender or Lender acting through its new Facility Office is only entitled to receive payment under those clauses to the same extent as the

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Existing Lender or Lender acting through its previous Facility Office would have been if the assignment, novation or change had not occurred. This clause 26.8 will not apply where the payment is in relation to Australian Withholding Tax and there are at least two Lenders after the assignment, novation or change, and the New Lender, or Lender acting through its new Facility Office, is not an Offshore Associate of the Borrower. In such instances, the New Lender, or Lender acting through its new Facility Office, will be entitled to full payment under clause 17 (“Tax gross up and indemnities”).

26.9

Borrower not required to pay stamp duty

Despite anything else in the Finance Documents, the Borrower is not liable for and does not need to pay any stamp duty (or any interest, fines, penalties or expenses in connection with it) assessed or payable in connection with any assignment or transfer of a Lender’s rights or rights and obligations under any Finance Document.

27	Change in Obligors

27.1

No assignment or transfers by Obligors

Subject to this clause 27, no Obligor may assign any of its rights or transfer by novation any of its rights or obligations under the Finance Documents, without the consent of the Agent (acting on the instructions of the Majority Lenders).

27.2

Accession of GRail

(a)

Hold Co and the Borrower must ensure that, within 30 Business Days of the date of Financial Close, GRail:

(i)

becomes an Obligor under this agreement by executing and delivering to the Agent an Accession Deed (Additional Obligor);

(ii)

becomes a party to the Security Trust Deed in the capacity as an Obligor in accordance with the terms of the Security Trust Deed;

(iii)

grants a general security agreement in favour of the Security Trustee, substantially in the form of the General Security Deed; and

(iv)

delivers to the Agent:

(A)

a Verification Certificate signed on behalf of GRail (with relevant annexures); and

(B)

a legal opinion from King & Wood Mallesons in relation to GRail’s entry into the general security agreement and accession to this agreement and the Security Trust Deed.

(b)

Provided that each condition in clause 27.2(a) has been satisfied or waived by the Agent (acting on the instructions of all the Lenders), the Agent will (and will be authorised by each party to this agreement other than Hold Co and the Borrower to) execute the Accession Deed (Additional Obligor) signed by GRail, the Borrower and Hold Co.

(c)

Upon execution of the Accession Deed (Additional Obligor) by GRail, Hold Co, the Borrower and the Agent, GRail will be taken to be a party to this agreement as if it was an Original Obligor and GRail shall assume the rights and the obligations of an Obligor under this agreement and

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each other party’s rights and obligations under this agreement in relation to the Obligors will include GRail.

(d)

On the date that GRail, Hold Co and the Borrower deliver an Accession Deed (Additional Obligor) to the Agent, GRail and each other Obligor will be deemed to confirm that the Repeating Representations are true and correct in relation to it by reference to the facts and circumstances then existing.

27.3

New Obligors

(a)

If, at any time, any entity is required to become an Obligor under this agreement in accordance with clause 23.6(e) (“Obligor coverage test”) (an “ New Obligor ”), then Hold Co and the Borrower must ensure that the New Obligor:

(i)

becomes an Obligor under this agreement by executing and delivering to the Agent an Accession Deed (Additional Obligor);

(ii)

becomes a party to the Security Trust Deed in the capacity as an Obligor in accordance with the terms of the Security Trust Deed;

(iii)

grants a general security agreement in favour of the Security Trustee, substantially in the form of the General Security Deed; and

(iv)

delivers to the Agent:

(A)

a Verification Certificate signed on behalf of the New Obligor (with relevant annexures); and

(B)

a legal opinion from King & Wood Mallesons in relation to the New Obligor’s entry into the general security agreement and accession to this agreement and the Security Trust Deed.

(b)

Provided that each condition in clause 27.3(a) has been satisfied or waived by the Agent (acting on the instructions of all the Lenders), the Agent will (and will be authorised by each party to this agreement other than Hold Co and the Borrower to) execute the Accession Deed (Additional Obligor) signed by the New Obligor, the Borrower and Hold Co.

(c)

Upon execution of the Accession Deed (Additional Obligor) by the New Obligor, the Borrower, Hold Co and the Agent, the New Obligor will be taken to be a party to this agreement as if it was an Original Obligor and the New Obligor shall assume the rights and the obligations of an Obligor under this agreement and each other party’s rights and obligations under this agreement in relation to the Obligors will include the New Obligor.

(d)

On the date that the Borrower, Hold Co and the New Obligor deliver an Accession Deed (Additional Obligor) to the Agent, the New Obligor and each other Obligor will be deemed to confirm that the Repeating Representations are true and correct in relation to it by reference to the facts and circumstances then existing.

27.4

Resignation of Obligors

(a)

The Borrower and Hold Co may from time to time propose that any other Obligor cease to be an Obligor under this agreement by delivering to the

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Agent an Obligor Resignation Deed signed by the Borrower, Hold Co and the relevant Obligor which will resign.

(b)

Provided that:

(i)

there is no Default or Review Event subsisting or would result from that person ceasing to be an Obligor;

(ii)

there is no payment due from that Obligor under the Finance Documents; and

(iii)

following the Obligor’s resignation, the conditions in clause 23.6(e) (“Obligor coverage test”) will continue to be satisfied,

the Agent will accept and countersign the Obligor Resignation Deed for that resigning Obligor and the resigning Obligor will cease to be an Obligor.

(c)

At the same time as a resigning Obligor ceases to be a party to this agreement, that Obligor will follow the steps and deliver relevant release documents under the Security Trust Deed so that the Obligor ceases to be an Obligor under the Security Trust Deed. The Finance Parties will provide the Security Trustee with all required instructions under the Security Trust Deed to ensure this occurs (including that the Security Trustee be authorised to execute any release documentation in respect of any Security provided by that retiring Obligor and any necessary PPSA filings to remove Security Interests granted by the retiring Obligor from the PPS Register).

28	Relationship between Finance Parties

28.1

Appointment and authority

The Agent agrees to provide agency services to each Lender and the MLAs at the request of the Borrower, and in consideration of the fee set out in the Agency and Security Trustee Fee Letter.

Each Lender and MLA:

(a)

appoints the Agent to act as its agent in connection with the Finance Documents and any transaction under it; and

(b)

irrevocably authorises the Agent to take action on behalf of that Lender or MLA in accordance with this agreement, to exercise its rights, powers and remedies, and comply with its obligations, under Finance Documents and any rights, powers and remedies reasonably incidental to them.

The Agent accepts its appointment to act as the agent of the Lenders and the MLAs in connection with Finance Documents and any transaction under them.

28.2

Scope of Agent’s obligations and duties

Each Lender and MLA acknowledges that:

(a)

the Agent has no obligations except those expressly set out in the Finance Documents;

(b)

except as expressly provided in the Finance Documents, the Agent’s appointment as agent for the Lenders and the MLAs does not mean that it is a trustee for the benefit of, is a partner of, or has a fiduciary duty to,

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or other fiduciary relationship with, any Lender, MLA, the Borrower or other person;

(c)

the Agent’s obligations are solely mechanical and administrative in nature; and

(d)

where the Agent provides services in connection with the administration of any Facility or the Finance Documents such as calculating fees and amounts, keeping records, distributing payments and information and dealing with notices such as utilisation notices, interest period selection notices or rollover notices, it does not provide those services as agent for the Lenders and MLAs but does so as principal, but the remainder of this part applies.

28.3

Role of the MLAs

Except as specifically provided in this agreement, no MLA (in that capacity) has obligations of any kind to any other party under or in connection with this agreement.

28.4

Business with the Obligors

The Agent and the MLAs may accept deposits from, lend money to and generally engage in any kind of banking or other business with any Obligor or its Affiliates.

28.5

Lenders bound by Agent’s actions

Each Lender agrees to be bound by anything properly done or properly not done by the Agent, whether or not on instructions, and whether or not the Lender gave an instruction or approved of the thing done or not done.

28.6

Agent to follow instructions

(a)

Where the Finance Documents require the Agent to follow, or states that the Agent is to act on, the instructions of a Lender, a specified majority of Lenders or all the Lenders, the Agent agrees to ask for instructions from the relevant Lender or all the Lenders, as the case may be, and to follow the instructions given in compliance with the applicable requirement.

(b)

Subject to this clause 28, the Agent agrees to follow any instructions it receives from the Majority Lenders. The Agent need not ask for their instructions but may do so.

(c)

If the Agent does not receive instructions (including after it requests them), it need not act but may do so. If the Agent acts without instructions, it agrees to act in what it considers to be the best interests of the Lenders as a whole.

28.7

How Agent asks for instructions and Lenders give them

Subject at all times to any specific time period prescribed in a Finance Document or other timing considerations under a Finance Document the Agent deems relevant:

(a)

whenever the Agent asks for instructions from a Lender under the Finance Documents, it may specify a period within which the Lender must instruct it. If the Agent specifies a period, the period must be reasonable having regard to the nature and subject matter of the request (but such period shall not exceed 10 Business Days unless the Borrower otherwise consents); and

(b)

the Agent may extend the period under clause 28.7(a) for a particular Lender following a request for an extension of time from the Lender,

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provided the Lender’s request is made in good faith and is made for reasons which are considered reasonable in the circumstances by the Agent (in consultation with the Borrower).

28.8

Failure to respond and Defaulting Finance Party

(a)

Subject to clause 28.8(b), if the Agent asks for instructions from a Lender under the Finance Documents and:

(i)

the Lender does not instruct the Agent:

(A)

within any period the Agent specifies (in accordance with clause 28.7 (“How Agent asks for instructions and Lenders give them”)); or

(B)

if no period of time is specified by the Agent, within 10 Business Days after the date that the Lender has been provided with all information necessary (in the reasonable opinion of the Agent) to make the relevant decision; or

(ii)

the Lender is a Defaulting Finance Party,

then for the purposes of determining whether the required Lenders have or have not approved a matter on which the Agent has sought instructions:

(iii)

the Lender’s Commitments will be taken to be taken to be zero; and

(iv)

when determining whether instructions have been given by the Lenders, each Lender which has not given instructions to the Agent will be disregarded for that purpose.

(b)

Clause 28.8(a) will not apply where the Agent asks for instructions from a Lender in relation to any matter referred to in clauses 28.9(b)(i) to 28.9(b)(viii) (inclusive) (“Restrictions on variations and waivers”).

(c)

The Agent may assume that a Lender is a Defaulting Finance Party if:

(i)

that Lender has notified the Agent that is has become a Defaulting Finance Party; or

(ii)

the relevant officers of the Agent with day-to-day conduct of its role are aware that any of the events or circumstances referred to in the definition of Defaulting Finance Party have occurred in respect of that Lender,

unless the Agent has received notice to the contrary from the Lender concerned (together with supporting evidence reasonably required by the Agent) or the Agent is otherwise aware that the Lender has ceased to be a Defaulting Finance Party.

28.9

Restrictions on variations and waivers

(a)

The Agent may only amend, vary or grant a waiver or release in connection with the Finance Documents on behalf of the Finance Parties if:

(i)

the Agent considers that it corrects an obvious or minor error, or is of a formal, technical, or administrative nature only or is

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necessary to allow a transaction which complies with the Finance Documents; or

(ii)

subject to paragraph (b) below, the Majority Lenders and the Borrower provide their consent.

(b)

Notwithstanding anything else in the Finance Documents, the Agent may not amend, vary or grant a waiver or release in connection with the Finance Documents if the variation, waiver or release would:

(i)

increase the obligations of, or change the date, amount, priority or order of any payment to a Finance Party, without the consent of that Finance Party;

(ii)

discharge or release (or agree to discharge or release) any guarantee or Security Interest existing for the benefit of a Finance Party, without the consent of that Finance Party, other than to permit a transaction which complies with the Finance Documents;

(iii)

change the definition of “BBSY”, without the consent of all Lenders;

(iv)

change the Margin or fees applicable to Tranche A1 or Tranche A2, without the consent of all Lenders participating in both Term Loan Facilities;

(v)

change the Margin or fees applicable to Tranche B, without the consent of all Lenders participating in Tranche B;

(vi)

waive any of the Initial Conditions Precedent, without the consent of all Lenders;

(vii)

waive any other conditions precedent to the making of a Utilisation (other than the first Utilisation), without the consent of the Lenders participating in that Utilisation;

(viii)

waive any of the requirements under clauses 27.2 (“Accession of GRail”) or clause 27.3 (“New Obligors”), without the consent of all Lenders;

(ix)

change any requirement for the agreement or instructions of all or a specified majority of Lenders to be obtained, without the consent of each Lender entitled to be counted in determining whether that requirement is satisfied;

(x)

change the definition of “Major Default”, “Major Representation” or “Majority Lenders”, without the consent of all Lenders;

(xi)

change clause 25.1 (“Review Event”) or clause 25.2 (“Consequences of a Review Event”), without the consent of all Lenders; or

(xii)

change this clause 28.9 or clause 46 (“Governing law and jurisdiction”), without the consent of all the Lenders.

(c)

Each Finance Party irrevocably authorises the Agent to effect, on its behalf, any variation, waiver or release permitted by this clause 28.9 and to do anything else the Agent reasonably considers necessary to effect the variation, waiver or release (including signing any power of attorney or other documents in connection with them).

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(d)

Any variation, waiver or release in accordance with this clause 28.9 is binding on all parties.

(e)

Any variation, waiver or release which relates to the rights or obligations of the Agent (in its capacity as such) may not be effected without the consent of the Agent.

28.10

Borrower need not enquire

In respect of anything the Agent does or omits to do under the Finance Documents, the Obligors need not enquire:

(a)

whether the Agent needed to consult or has consulted the Lenders;

(b)

whether the Agent has received relevant instructions under the Finance Documents; or

(c)

about the terms of any instructions.

As between the Agent and the Obligors, all action the Agent takes as Agent is taken to be authorised by the Finance Parties unless the Borrower has actual notice to the contrary.

28.11

Own enquiries about the Obligors

Each other Finance Party acknowledges and confirms to the Agent that it has:

(a)

entered into the Finance Documents to which it is a party;

(b)

made, and will continue to make, its own independent investigation and appraisal of the risks associated with the Finance Documents and the transactions in connection with them (including each Obligor’s business, status and financial condition) based on documents and other information which it considers appropriate;

(c)

made its own independent investigation of whether any Obligor has granted a security interest which competes with any security interest it might have granted to the Finance Parties, or whether any Finance Document or any other agreement, arrangement or transaction relating to them is or contains a security interest for the purposes of the PPSA which is for the benefit of the Finance Parties (either alone or together with any other Finance Party) and whether any such security interest has been or should be perfected under the PPSA;

(d)

made its own assessment and approval of:

(i)

the margin, fees and other returns under the Finance Documents;

(ii)

the legality, validity, priority effectiveness, adequacy or enforceability of the Finance Documents and any other arrangement, agreement or document; and

(iii)

the adequacy, completeness or accuracy of any information provided by the agent, another party or any other person under or in connection with the Finance Documents or the transactions contemplates in the Finance Documents and any other arrangement, agreement or document,

without relying on the Agent (in whatever capacity) or any other Finance Party or their Affiliates (or any officers, employees, agents or attorneys of the Agent, any

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Finance Party or any of their Affiliates) or on any representation, warranty or statement made by any of them.

28.12

Agent not obliged to monitor performance or provide information

The Agent has no obligation, either initially or on a continuing basis to:

(a)

keep itself informed, or to inform the other Finance Parties, about any Obligor’s business or financial condition or any Obligor’s performance of its obligations in connection with the Finance Documents;

(b)

provide the Finance Parties with any document or other information about the Obligors (whether coming into its possession before or after financial accommodation is provided under this agreement) except as expressly provided in this agreement; or

(c)

monitor whether a Finance Party is a Defaulting Finance Party.

28.13

No obligations to do “know your customer” checks

Each other Finance Party:

(a)

agrees that the Agent has no obligation to do any “know your customer” or similar checks in connection with any person on behalf of that Finance Party;

(b)

acknowledges to the Agent that it is solely responsible for any “know your customer” and similar checks which it is required to do and that it may not rely on any statement about any know your customer or similar checks made by the Agent; and

(c)

agrees to give the Agent any document or other information that the Agent reasonably requests to enable the Agent to do any “know your customer” and similar checks.

28.14

Information Agent must provide

Promptly after it gives or receives it, the Agent agrees to give each Lender a copy of each document (including any notice or other communication) which the Agent gives to or receives from the Obligors in connection with the Finance Documents, and which the Agent considers material.

28.15

When Agent is aware of a Default or Review Event

(a)

The Agent is taken not to be aware of any fact or information (including any Default or Review Event) until an Authorised Officer of the Agent with responsibility for administration of the transactions contemplated by the Finance Documents has received notice from a Finance Party or an Obligor stating the fact or information (and in the case of a Default or Review Event, describing it as such and giving details of the event).

(b)

If the Agent becomes so aware of a Default or Review Event, it agrees to promptly notify each other Finance Party.

(c)

Until it becomes so aware, the Agent may assume that no Default or Review Event has occurred and that each Obligor is complying with all its obligations in connection with the Finance Documents and need not inquire whether that is, in fact, the case.

28.16

Information received by another division of the Agent

In acting as agent for the Lenders, the Agent is taken to be acting through its agency division which is to be treated as a separate person from any of its other

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divisions or departments. If another division or department receives information, it may be treated as confidential to that division or department and the Agent is taken not to have notice of it.

28.17

Agent to give notices and communications

(a)

The Agent agrees to promptly forward to a party the original or a copy of any document which is delivered to the Agent for that party by any other party.

(b)

If the Agent receives a notice or other communication under the PPSA in connection with a Finance Document which the Agent considers material (such as an amendment demand under section 178 of the PPSA, a request for information under section 275 of the PPSA or a notice in connection with enforcement under Chapter 4 of the PPSA), the Agent agrees to give each Lender a copy promptly after the Agent receives it. The Agent will also promptly notify the Security Trustee.

28.18

Agent not responsible for information

The Agent has no obligation, either initially or on a continuing basis, to:

(a)

review or check any document or information about any Obligor which the Agent gives to the Finance Parties and makes no representation, warranty or statement about the adequacy, accuracy or completeness of any such document or information; or

(b)

update any document or information about an Obligor that the Agent gives to the Finance Parties in connection with the Finance Documents.

28.19

Agent need not act in breach

Despite anything else in the Finance Documents, the Agent need not do, or omit to do, anything if the Agent reasonably believes that doing so would involve a breach of law or duty of confidentiality or any provision of a Finance Document to which the Agent is a party.

28.20

Force majeure

(a)

Despite anything else in the Finance Documents, the Agent need not act (whether or not on instructions from one or more of the Lenders) for as long as it is unable to act due to any cause beyond its control (including war, riot, natural disaster, labour dispute, or law taking effect after the date of this agreement). The Agent agrees to notify the other parties after it determines that it is unable to act.

(b)

The Agent is not responsible to any Lender, any Obligor or any other person for any liability or loss arising from, or any Costs incurred in connection with, it not acting for as long as it is unable to act.

28.21

Exoneration

Except to the extent of its own fraud, gross negligence or Wilful Default, neither the Agent nor any Lender performing a role other than that of Agent or Lender nor any of their Affiliates (nor any of its or its Affiliates’ officers, employees, agents or attorneys) is responsible or liable (whether in tort or otherwise) to any other Finance Party:

(a)

because the Borrower or any other Obligor does not perform its obligations under the Finance Documents;

(b)

for the business or financial condition of the Borrower or any other Obligor;

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(c)

for the adequacy, accuracy or completeness of any document (including any information memorandum or offer document) or other information given to a Finance Party by or at the request of the Borrower or any other Obligor in connection with the Finance Documents;

(d)

for any conduct of any person in connection with a Finance Document, or the transactions in connection with it, being (or claimed to be) misleading or deceptive, or likely to mislead or deceive in any respect (including by omission);

(e)

for the effectiveness, genuineness, validity, enforceability or admissibility in evidence of a Finance Document or any document or transaction in connection with them;

(f)

for acting (or not acting) in accordance with the instructions of a required majority of Lenders or all Lenders, or a specific Lender, as the case may be; or

(g)

for anything done or not done in connection with the Finance Documents by any of them.

28.22

No liability for Lender’s breach

If a Lender does not comply with its obligations under a Finance Document, the Agent is not responsible to any Obligor or any other Finance Party for the non-compliance. However, this does not relieve any other Finance Party or any Obligor of any of their respective obligations.

28.23

Agent’s other activities

(a)

If the Agent is also a Lender, then the parties acknowledge and agree that in its capacity as a Lender it has the same rights and obligations under the Finance Documents as the other Lenders and may exercise those rights and agrees to comply with those obligations independently from its role as agent as if it were not the agent.

(b)

The Agent may:

(i)

engage in any kind of banking, or other business with any Obligor or Beneficiary or any of their Affiliates; and

(ii)

accept fees and other consideration from any Obligor or its Affiliates for services in connection with the Finance Documents or any other business or arrangement.

(c)

The Agent has no obligation to account to any party for any consideration it receives from doing those things. Each party releases the Agent from any obligation it might otherwise have to that party in connection with these matters.

28.24

Agent may delegate

The Agent may employ agents and attorneys and may delegate any of its rights, powers, remedies or obligations in its capacity as agent for the other Finance Parties without notifying any person of the delegation. The Agent agrees to exercise reasonable care in selecting delegates.

28.25

Agent may rely on communications and opinions

The Agent may (in acting in that capacity) rely:

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(a)

on any communication or document it believes in good faith to be genuine and correct and to have been signed or sent by the appropriate person; and

(b)

as to legal, accounting, taxation or other professional matters, on opinions and statements of any legal, accounting, taxation or other professional advisers used by it.

28.26

Notice of assignment or novation

The Agent may treat a Lender as the holder or obligor of the rights and obligations of a Lender for all purposes under the Finance Documents until the Agent signs a Transfer Certificate or receive a notice of assignment satisfactory to the Agent in respect of the Lender.

28.27

Correspondence

Except where expressly provided otherwise (including under the Security Trust Deed):

(a)

all correspondence under or in relation to the Finance Documents between the Lenders on the one hand and the Obligors on the other, will be made through the Agent; and

(b)

each Finance Party and each Obligor, respectively, agree to deal with and through the Agent in accordance with the Finance Documents.

29	Funding of the Agent

29.1

Agent may require funding or security before acting

(a)

If the Agent so requests, each Lender shall indemnify the Agent, within three Business Days of demand, against any Cost, loss or liability incurred by the Agent (other than by reason of the Agent’s fraud, gross negligence or Wilful Default) in acting as Agent on behalf of the Lenders (unless the Agent has otherwise been reimbursed by an Obligor pursuant to a Finance Document).

(b)

The Agent may refrain from acting in accordance with any instructions of any Lender or group of Lenders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any Cost, loss or liability which it may incur in complying with those instructions. The Agent may specify that the security be cash, in which case each Lender must on request pay the Agent.

(c)

The Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.

(d)

If a Lender is required to indemnify the Agent or provide cash security in accordance with this clause 29.1, each Lender’s share of that indemnity or cash security will be equal to the proportion its Commitments bear to the Total Commitments at that time (or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero).

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29.2

Lenders may fund other Lenders

If any Lender fails to pay its share of any amount due under clause 29.1 (“Agent may require funding or security before acting”), one or more other Lenders may pay all or part of that share to the Agent. In that case, the non-paying Lender must immediately pay each paying Lender the amount paid by that paying Lender together with interest equal to the rate from time to time certified by the paying Lender to be its cost of funds plus a margin of 2.00% per annum, compounding monthly.

30	Change of Agent

30.1

Retirement

The Agent may retire by giving the Borrower and each Lender at least 20 Business Days’ prior written notice of its intention to do so (and provided that a replacement has been appointed in accordance with this clause 30).

30.2

Removal

After consultation with the Borrower, the Majority Lenders may remove the Agent as Agent by giving the Agent at least 20 Business Days’ prior written notice of their intention to do so, unless at any time the Agent is a Defaulting Finance Party, in which case the Majority Lenders may remove the Agent by giving the Agent at least 5 Business Days’ prior written notice of their intention to do so. The removal of the Agent shall not become effective until a replacement has been appointed in accordance with this clause 30.

30.3

FATCA retirement

The Agent agrees to retire in accordance with clause 30.1 (“Retirement”) (and, to the extent applicable, agrees to use reasonable endeavours to appoint a replacement Agent under clause 30.4(b) (“Permitted replacements”)) if on or after the date which is 3 months before the earliest FATCA Application Date relating to any payment to the Agent under the Finance Documents, either:

(a)

the Agent fails to respond to a request under clause 17.7 (“FATCA information”) and the Borrower or a Lender reasonably believes that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;

(b)

the information supplied by the Agent under clause 17.7 (“FATCA information”) indicates that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or

(c)

the Agent notifies the Borrower and the Lenders that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date,

and (in each case) the Borrower or a Lender reasonably believes that a party will be required to make a FATCA Deduction that would not be required if the Agent were a FATCA Exempt Party, and the Borrower or that Lender, by notice to the Agent, requires it to resign. The retirement of the Agent shall not become effective until a replacement has been appointed in accordance with this clause 30.

30.4

Permitted replacements

The new Agent must be:

(a)

a Lender or an Affiliate of a Lender or a reputable and experienced bank or financial institution, in either case nominated by the Majority Lenders; or

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(b)

if the Majority Lenders have not nominated a new Agent by the end of the notice period for the retirement or removal of the Agent, a reputable and experienced bank or financial institution nominated by the outgoing Agent.

In addition, the new Agent must be approved by the Borrower (such approval not to be unreasonably withheld or delayed).

30.5

How the change takes effect

With effect from the effective date specified in the relevant retirement and appointment document:

(a)

the new Agent assumes the obligations of the Agent and is bound by the terms of this agreement;

(b)

the new Agent and each other party to this agreement will have the same rights and obligations among themselves as they would have had if the new Agent had been party to this agreement in the capacity as Agent on the date of this agreement; and

(c)

the outgoing Agent is discharged from any further obligation under this agreement. This discharge does not prejudice any accrued right or obligation.

The outgoing Agent and the new Agent must, at the same time as required under this agreement, also take all steps (including execution of relevant documentation) required under the Security Trust Deed in order to ensure that the outgoing Agent ceases to be party to the Security Trust Deed and the new Agent becomes a party to the Security Trust Deed, in the capacity as Agent.

30.6

Outgoing Agent’s obligations

The outgoing Agent agrees to sign documents (including a relevant retirement and appointment document) and do anything else necessary or appropriate to achieve its retirement and the appointment of the new Agent in accordance with clause 30.5 (“How the change takes effect”).

30.7

Costs of changing Agent

Everything the outgoing Agent is required to do under this clause 30 is at the Borrower’s expense except that if the Agent retires pursuant to clause 30.1 (“Retirement”) or 30.3 (“FATCA retirement”) or is removed due to it being a Defaulting Finance Party, it is at the outgoing Agent’s own expense.

30.8

Agent must notify appointment

The new Agent agrees to notify the Borrower and the Lenders promptly after its appointment as Agent becomes effective.

Part 8 Public Offer

31	Public Offer

31.1

Representations, warranties and undertakings

Hold Co represents and warrants that:

(a)

invitations were made prior to the date of this agreement on behalf of the Borrower to become a Lender under this agreement to at least ten

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parties, each of whom, as at the date the relevant invitation was made, Hold Co’s relevant officers involved in the transaction on a day to day basis believed carried on the business of providing finance or investing or dealing in securities in the course of operating in financial markets, for the purposes of Section 128F(3A)(a)(i) of the Tax Act, and each of whom has been disclosed to the Borrower;

(b)

at least 10 of the parties to whom the invitations referred to in clause 31.1(a) were made were not, as at the date the invitations were made, to the knowledge of the relevant officers of Hold Co involved in the transaction, Associates of any of the others of those 10 offerees; and

(c)

none of the offers or invitations referred to in clause 31.1(a) were made to parties whom its relevant officers involved in the transaction on a day to day basis are aware are Offshore Associates of the Borrower.

31.2

Borrower’s confirmation

The Borrower confirms that none of the potential offerees whose names were disclosed to it by Hold Co before the date of this agreement were known or suspected by it to be an Offshore Associate of the Borrower or an Associate of any other such offeree.

31.3

Lenders’ representations and warranties

Each Original Lender represents and warrants that, if it received an invitation under clause 31.1(a) (“Arranger’s representations, warranties and undertakings”), at the time it received the invitation it was carrying on the business of providing finance, or investing or dealing in securities, in the course of operating in financial markets.

31.4

Information

Each Lender will provide to the Borrower when reasonably requested by the Borrower any factual information in its possession or which it is reasonably able to provide to assist the Borrower to demonstrate (based upon tax advice received by the Borrower) that section 128F of the Tax Act has been satisfied where to do so will not, in the Lender’s reasonable opinion, breach any law or regulation or any duty of confidence.

Part 9 Finance Parties and sharing provisions

32	Conduct of business by the Finance Parties

No provision of this agreement will:

(a)

interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;

(b)

oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or

(c)

oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.

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33	Sharing among the Finance Parties

33.1

Payments to Finance Parties

(a)

If, prior to the Enforcement Date, a Finance Party (a “ Recovering Finance Party ”) receives or recovers (including by combination of accounts or set off) any amount from an Obligor other than in accordance with clause 34 (“Payment mechanics”) and applies that amount to a payment due under the Finance Documents then:

(i)

the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery to the Agent;

(ii)

the Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Agent and distributed in accordance with clause 34 (“Payment mechanics”), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and

(iii)

the Recovering Finance Party shall, within three Business Days of demand by the Agent, pay to the Agent an amount (the “ Sharing Payment ”) equal to such receipt or recovery less any amount which the Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with clause 34.6 (“Partial payments”).

(b)

Clause 33.1(a):

(i)

shall not apply from (and including) the Enforcement Date, at which time all amounts shall be distributed in accordance with the Security Trust Deed;

(ii)

shall not apply to any amount received or recovered by an Issuing Bank and applied by it towards any amount then payable to it by way of the provision of cash cover (which has been provided to the Issuing Bank in accordance with the Finance Documents) or otherwise in respect of a Letter of Credit at any time when receipts and recoveries by the Finance Parties are sufficient to discharge all amounts then due and payable under the Finance Documents; and

(iii)

shall apply to any amount received or recovered by an Issuing Bank and applied by it towards any amount then payable to it by way of the provision of cash cover or otherwise in respect of a Letter of Credit at any time when receipts and recoveries by the Finance Parties are not sufficient to discharge all amounts then due and payable under the Finance Documents.

33.2

Redistribution of payments

The Agent shall treat the Sharing Payment as if it had been paid by the relevant Obligor and distribute it between the Finance Parties (other than the Recovering Finance Party) (the “ Sharing Finance Parties ”) in accordance with clause 34.6 (“Partial payments”) towards the obligations of that Obligor to the Sharing Finance Parties.

33.3

Recovering Finance Party’s rights

(a)

Unless clause 33.3(b) applies:

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(i)

the receipt or recovery of an amount referred to in clause 33.1 (“Payments to Finance Parties”) will be taken to have been a payment for the account of the Agent and not to the Recovering Finance Party for its own account, and the liability of the relevant Obligor to the Recovering Finance Party will only be reduced to the extent of any distribution retained by the Recovering Finance Party under clause 33.1(a)(iii) (“Payments to Finance Parties”); and

(ii)

(without limiting sub-paragraph (i) above) the relevant Obligor from whom the amount was received or recovered shall indemnify the Recovering Finance Party against a payment under clause 33.1(a)(iii) (“Payments to Finance Parties”) to the extent that (despite sub-paragraph (i)) its liability has been discharged by the recovery or payment.

(b)

Where:

(i)

the amount referred to in clause 33.1 (“Payments to Finance Parties”) was received or recovered otherwise than by payment (for example, set off); and

(ii)

the relevant Obligor, or the person from whom the receipt or recovery is made, is insolvent at the time of the receipt or recovery, or at the time of the payment to the Agent, or becomes insolvent as a result of the receipt or recovery,

then the following will apply so that the Finance Parties have the same rights and obligations as if the money had been paid by the relevant Obligor to the Agent for the account of the Finance Parties and distributed accordingly:

(iii)

each other Finance Party will assign to the Recovering Finance Party an amount of the debt owed by the relevant Obligor to that Finance Party under the Finance Documents equal to the amount received by that Finance Party under clause 33.1(b) (“Payments to Finance Parties”);

(iv)

the Recovering Finance Party will be entitled to all rights (including interest and voting rights) under the Finance Documents in respect of the debt so assigned; and

(v)

that assignment will take effect automatically on payment of the Sharing Payment by the Agent to the other Finance Party.

33.4

Reversal of distribution

If any part of the Sharing Payment received or recovered by a Recovering Finance Party becomes repayable and is repaid by that Recovering Finance Party, then:

(a)

each Sharing Finance Party shall, upon request of the Agent, pay to the Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (the “ Redistributed Amount ”);

(b)

as between the relevant Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Obligor and the relevant Obligor

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shall indemnify the Sharing Finance Party against a payment under clause 33.4(a) to the extent that the relevant Obligor’s liability has been discharged by the recovery or payment; and

(c)

to the extent necessary, any debt assigned under clause 33.3(b) (“Recovering Finance Party’s rights”) will be reassigned.

33.5

Exceptions

(a)

This clause 33 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause, have a valid and enforceable claim (or right of proof in an administration) against the relevant Obligor.

(b)

A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if:

(i)

it notified that other Finance Party of the legal or arbitration proceedings; and

(ii)

that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.

Part 10 Administration

34	Payment mechanics

34.1

Payments to the Agent

(a)

On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, that Obligor or Lender shall make the same available to the Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the time in immediately available funds or if agreed by the Agent in such funds specified by the Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment.

(b)

Unless otherwise specified in the Finance Documents, payment shall be made to such account at the city of the Agent with such bank as the Agent specifies.

(c)

Unless otherwise specified in the Finance Documents, payment by an Obligor to the Agent (or as the Agent directs) for the account of a Finance Party will, when that amount is received by the Agent or the person to whom the Agent has directed that payment should be made, satisfy the Obligor’s obligations to make that payment.

34.2

Distributions by the Agent

Each payment received by the Agent under the Finance Documents for another party shall, subject to clauses 34.3 (“Distributions to an Obligor”) and 34.4 (“Clawback and pre-funding”) be made available by the Agent as soon as practicable after receipt to the party entitled to receive payment in accordance with this agreement (in the case of a Lender, for the account of its Facility Office), to such account as that party may notify to the Agent by not less than five Business Days’ notice with a bank specified by that party in Australia.

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34.3

Distributions to an Obligor

The Agent may (with the consent of the Obligor or in accordance with clause 37 (“Set-off”)) apply any amount received by it for that Obligor in or towards payment (on the date and in the currency and funds of receipt) of any amount due from that Obligor under the Finance Documents or in or towards purchase of any amount of any currency to be so applied.

34.4

Clawback and pre-funding

(a)

Where a sum is to be paid by a party (the “ Payer ”) to the Agent under the Finance Documents for another party, the Agent is not obliged to pay that sum to that other party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.

(b)

Unless clause 34.4(c) applies, if the Agent pays an amount to another party and it proves to be the case that the Agent had not actually received that amount, then the party to whom that amount (or the proceeds of any related exchange contract) was paid by the Agent shall on demand refund the same to the Agent together with interest on that amount from the date of payment to the date of receipt by the Agent, calculated by the Agent to reflect its cost of funds.

(c)

If the Agent is willing to make available amounts for the account of the Borrower before receiving funds from the Lenders then if and to the extent that the Agent does so but it proves to be the case that it does not then receive funds from a Lender in respect of a sum which it paid to the Borrower:

(i)

the Agent shall notify the Borrower of that Lender’s identity and the Borrower shall on demand refund it to the Agent; and

(ii)

the Lender who should have made those funds available or, if that Lender fails to do so, the Borrower, shall on demand pay to the Agent the amount (as certified by the Agent) which will indemnify the Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender.

(d)

The Payer will still remain liable to make the assumed payment, but until the other party does repay the Agent under clause 34.4(b), the Payer’s liability will be to the Agent in the Agent’s own right.

34.5

Agent as a Defaulting Finance Party

(a)

If, at any time, the Agent becomes Defaulting Finance Party, a party which is required to make a payment under the Finance Documents to the Agent for the account of other parties under Clause 34.1 (“Payments to the Agent”) may instead, on the due date for payment, either pay that amount direct to the required payee or pay that amount to an interest-bearing account held in the name of the payer and designated as a trust account for the benefit of the payee or payees with a bank in Australia rated at least A- (S&P) or A3 (Moody’s) or a comparable rating from an internationally recognised credit rating agency.

(b)

All interest accrued on the trust account will be for the benefit of the beneficiaries of that trust account pro rata to their respective entitlements.

(c)

A party which has made a payment under clause 34.5(a) shall be discharged of the relevant payment obligation under the Finance

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Documents and shall not take any credit risk with respect to the amounts in the trust account.

(d)

Promptly upon the appointment of a successor Agent under Clause 30.2 (“Removal”), each party which has made a payment to a trust account under clause 34.5(a) shall give all requisite instructions to the bank to transfer the amount (together with any accrued interest) to the successor Agent for distribution under clause 34.2 (“Distributions by the Agent”).

34.6

Partial payments

Prior to the Enforcement Date, if the Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents, the Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in the following order:

(a)

first , to itself for any amounts due to it in connection with its role as Agent under the Finance Documents;

(b)

secondly , in or towards payment pro rata of all amounts (including interest) payable by the Obligor to Lenders in respect of amounts or security paid or provided by the Lenders to the Agent in place of another Lender under clauses 29 (“Funding of the Agent”);

(c)

thirdly , to each Lender in or towards payment pro rata of any accrued interest, fees or commission due but unpaid under this agreement;

(d)

fourthly , to each Lender in or towards payment pro rata of any principal due but unpaid under this agreement; and

(e)

fifthly , in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.

The Agent may only vary the order set out in paragraphs (a) to (e) (inclusive) above with the prior written consent of all Lenders.

Paragraphs (a) and (b) above will override any appropriation made by an Obligor.

From (and including) the Enforcement Date, all amounts shall be distributed in accordance with the Security Trust Deed.

34.7

No set-off by Obligors

All payments to be made by an Obligor under the Finance Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.

34.8

Business Days

(a)

Any payment under the Finance Documents which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).

(b)

During any extension of the due date for payment of any principal or Unpaid Sum under this agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.

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34.9

Currency of account

(a)

Subject to this Clause 34.9, the Base Currency is the currency of account and payment for any sum due from an Obligor under any Finance Document.

(b)

Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.

(c)

Any amount expressed to be payable in a currency other than the Base Currency shall be paid in that other currency.

35	Anti-money laundering and sanctions

(a)

Each Obligor agrees that a Finance Party may delay, block or refuse to process any transaction without incurring any liability if a Finance Party knows or suspects that the transaction or the application of its proceeds may:

(i)

breach any AML/CTF Laws;

(ii)

allow the imposition of any penalty on that Finance Party or its Affiliates under any AML/CTF Laws;

(iii)

involve any Sanctioned Person; or

(iv)

directly or indirectly involve the proceeds of, or be applied for the purposes of, conduct which is unlawful in Australia or any other country,

including where the transaction or the application of its proceeds involves any entity or activity the subject of any applicable sanctions in any jurisdiction binding on the Finance Party or its Affiliate, or the direct or indirect proceeds of unlawful activity (each an “ Illegal Transaction ”).

(b)

If:

(i)

an Obligor becomes a Sanctioned Person or an interest in an Obligor is transferred to a Sanctioned Person; and

(ii)

in each case, as a consequence a Finance Party’s continued Commitment and participation in financial accommodation under the Facilities would cause the Finance Party to breach a Sanction,

the Finance Party may by notice to the Borrower and the Agent:

(iii)

terminate its Commitment; and

(iv)

direct the Borrower to prepay its participation in any financial accommodation, together with all interest and other affected amounts owing under the Finance Documents,

but, in each case, only to the extent that doing so will remedy its breach of Sanction or ensure that it does not breach the relevant Sanction.

The Borrower must make the prepayment on the later of the last day of the Interest Period for each Utilisation affected occurring after receipt of the notice referred to in paragraph (b) above or 30 days after receipt of that notice, or if earlier, the latest day on which the prepayment can be made without the relevant breach of Sanction arising.

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(c)

Each Obligor undertakes to exercise its rights and perform its obligations under the Finance Documents in accordance with all applicable laws or regulations relating to AML/CTF Laws or Sanctions.

(d)

Each Obligor must provide all information to a Finance Party which the Finance Party reasonably requires in order to comply with any AML/CTF Laws, manage its money-laundering, terrorism financing or economic and trade sanctions risk or to comply with any laws or regulations in Australia, any other country or any other jurisdiction binding on a Finance Party.

(e)

Each Obligor:

(i)

agrees that a Finance Party may disclose any information concerning the Obligor to any law enforcement, regulatory agency or court where required by any AML/CTF Law; and

(ii)

releases each Finance Party from any claim Obligor would otherwise have against that Finance Party in respect of any disclosure under sub-paragraph (i) above.

(f)

Each Obligor represents and warrants that:

(i)

it is acting on its own behalf in entering into any Finance Document; and

(ii)

it is not a Sanctioned Person.

(g)

Each Obligor declares and undertakes to each Finance Party that:

(i)

to the best of its knowledge, information and belief, having made due enquiry, the processing of any transaction by the Finance Party in accordance with the Obligor’s instructions will not breach any AML/CTF Laws or Sanctions or involve an Illegal Transaction;

(ii)

it will not (directly or indirectly) use the proceeds of the Facilities or any other transaction contemplated by this agreement, or lend, contribute or otherwise make available such proceeds to any person:

(A)

to fund any activities or business of or with any person, or in any country or territory, that is, or whose government is, at the time of such funding a Sanctioned Person or the subject of Sanctions; or

(B)

in any other manner that would result in a violation of Sanctions by any person or result in any person becoming a Sanctioned Person;

(iii)

it will not engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or breaches or attempts to breach, directly or indirectly, any Sanctions; and

(iv)

it will not fund all or part of any payment in connection with a Finance Document out of proceeds derived from business or transactions with a Sanctioned Person, or from any action which is in breach of any Sanctions.

(h)

In this clause 35:

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AML/CTF Laws means the Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth) and any other anti-money laundering, ant-bribery, ant-corruption or counter-terrorism financing laws or regulations of any country including any laws or regulations imposing ‘know your customer’ or other identification checks or procedures, that apply to a Finance Party, in any jurisdiction, in connection with the Finance Documents.

Sanctioned Person means any person (natural, corporate or governmental) who is owned or controlled by persons that are a designated target of any Sanctions or is otherwise a subject of Sanctions (including as a result of being (a) owned or controlled directly or indirectly by any person which is a designated target of Sanctions, or (b) located, organised under the laws of, or a citizen or resident of, any country or territory that is, or whose government is, subject to general or country-wide Sanctions).

Sanctions means any economic or financial sanctions, trade embargoes or similar measures enacted, administered or enforced by any of the following (or by any agency of any of the following):

(i)

Australia;

(ii)

the United Nations;

(iii)

the United States of America;

(iv)

the European Union or any present or future member state thereof;

(v)

the United Kingdom;

(vi)

Hong Kong;

(vii)

the French Republic;

(viii)

Singapore;

(ix)

Japan;

(x)

the Republic of Korea; or

(xi)

New Zealand.

KYC

Each Lender and Obligor shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of another Finance Party) in order for the Agent to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.

37	Set-off

If an Event of Default is continuing, a Finance Party may, but need not, set off any matured obligation due from an Obligor under this agreement (to the extent beneficially owned by that Finance Party) against any matured obligation owed by that Finance Party to that Obligor, regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different

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currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.

Part 11 General

38	Notices and communications

38.1

Communications in writing

Any communication or document to be made or delivered under or in connection with this agreement:

(a)

must be in writing;

(b)

must be signed by an authorised signatory of the sender (directly or with a facsimile signature), subject to clause 38.6 (“Email communication”) and clause 38.7 (“Reliance”), and

(c)

unless otherwise stated, may be made or delivered by fax, by letter or by email.

38.2

Addresses

The address, email address and fax number (and the department or officer, if any, for whose attention the communication is to be made) of each party for any communication or document to be made or delivered under or in connection with this agreement is:

(a)

in the case of the Agent, that identified with its name in the Details;

(b)

in the case of each Original Lender, the Borrower and each other Original Obligor, that specified in schedule 1 (“Original Obligors”) or schedule 2 (“Original Lenders”) (as applicable); or

(c)

in the case of each other Lender or Obligor, that notified in writing to the Agent on or prior to the date on which it becomes a party to this agreement,

or any substitute address, fax number, email address or department or officer as the party may notify to the Agent (or the Agent may notify to the other parties, as applicable) by not less than five Business Days’ notice.

38.3

Delivery

(a)

Any communication or document to be made or delivered by one party to another under or in connection with this agreement will be taken to be effective or delivered:

(i)

if by way of fax, when the sender receives a successful transmission report, unless the recipient informs the sender that it has not been received in legible form by any means within two hours after:

(A)

receipt, if in business hours in the city of the recipient; or

(B)

if not, the next opening of business in the city of the recipient; or

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(ii)

if by way of letter or any physical communication, when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address; or

(iii)

if by way of email, as specified in clause 38.6 (“Email communication”),

and, in the case of a communication, if a particular department or officer is specified as part of its address details provided under clause 38.2 (“Addresses”), if addressed to that department or officer.

(b)

All communication to or from an Obligor under this agreement must be sent through the Agent.

(c)

Any communication or document made or delivered to the Borrower in accordance with this clause 38 will be deemed to have been made or delivered to each of the Obligors.

(d)

A communication by fax or email after business hours in the city of the recipient will be taken not to have been received until the next opening of business in the city of the recipient.

38.4

Notification of address, fax number, email address

Promptly upon receipt of notification of (or any change in) an address, fax number or email address of an Obligor or upon changing its own address, fax number or email address, the Agent shall notify the other parties.

38.5

Communications if Agent is a Defaulting Finance Party

If and for so long as the Agent is a Defaulting Finance Party, the parties may, instead of communicating with each other through the Agent, communicate with each other directly and all the provisions of this agreement or another Finance Document which require communications as between an Obligor and the Lenders to be made or notices to be given to or by the Agent (on behalf of the Lenders) are varied so that communications may be made and notices given to or by the relevant parties directly.

38.6

Email communication

Any communication or document under or in connection with this agreement may be made by or attached to an email and will be effective or delivered only:

(a)

in the case of a notice to the Agent of a Review Event or a Default, when actually opened in legible format by the Agent;

(b)

in all other cases, on the first to occur of the following:

(i)

when it is dispatched by the sender to each of the email addresses specified by the recipient, unless for each of the addresses, the sender receives an automatic notification that the e-mail has not been received (other than an out of office greeting for the named addressee) and it receives the notification before 2 hours after the last to occur (for all addresses) of:

(A)

dispatch if in business hours in the city of the address; or

(B)

if not, the next opening of business in such city;

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(ii)

the sender receiving a message from the intended recipient’s information system confirming delivery of the email; and

(iii)

the email being available to be read at one of the email addresses specified by the sender; and

(c)

the email is in an appropriate and commonly used format, and any attached file is a pdf, jpeg, tiff or other appropriate and commonly used format.

38.7

Reliance

Any communication or document sent under this clause 38 can be relied on by the recipient if the recipient reasonably believes it to be genuine and it bears what appears to be the signature (original or facsimile or email) of an authorised signatory of the sender (without the need for further enquiry or confirmation).

38.8

English language

(a)

Any notice or other communication given under or in connection with this agreement must be in English.

(b)

All other documents provided under or in connection with this agreement must be:

(i)

in English; or

(ii)

if not in English, and if so required by the Agent, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.

39	Calculations and certificates

39.1

Accounts

In any litigation or arbitration proceedings arising out of or in connection with this agreement, the entries made in the accounts maintained by a Finance Party are prima facie evidence of the matters to which they relate.

39.2

Certificates and determinations

Any certification or determination by a Finance Party of a rate or amount under this agreement is, in the absence of manifest error, conclusive evidence of the matters to which it relates.

39.3

Day count convention

Any interest, commission or fee accruing under this agreement will accrue from day to day and is calculated on the basis of the actual number of days elapsed and a year of 365 days.

40	Partial invalidity

If, at any time, any provision of this agreement is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.

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41	Remedies and waivers

No failure to exercise, nor any delay in exercising, on the part of any Finance Party, any right or remedy under this agreement shall operate as a waiver of any such right or remedy or constitute an election to affirm any of this agreement. No election to affirm this agreement on the part of any Finance Party shall be effective unless it is in writing. No single or partial exercise of any right or remedy shall prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in this agreement are cumulative and not exclusive of any rights or remedies provided by law.

42	Confidentiality

42.1

Confidential information

Each Finance Party agrees to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by clause 42.2 (“Disclosure of Confidential Information”), and to ensure that all Confidential Information is protected with security measures and a degree of care that would apply to its own confidential information.

42.2

Disclosure of Confidential Information

Any Finance Party may disclose:

(a)

to any of its Affiliates and any Connected Person of that Finance Party or its Affiliates, such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information, except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;

(b)

to any person:

(i)

to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents or which succeeds (or which may potentially succeed) it as Agent and, in each case, to any of that person’s Affiliates or any of its or its Affiliates’ Connected Persons;

(ii)

with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or more Obligors and to any of that person’s Affiliates or any of its or its Affiliates’ Connected Persons;

(iii)

appointed by any Finance Party or by a person to whom sub-paragraph (i) or (ii) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any Authorised Officer of a Finance Party);

(iv)

who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in sub-paragraph (i) or (ii) above;

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(v)

to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation (except this paragraph does not permit the disclosure of any information under section 275(4) of the PPSA unless section 275(7) of the PPSA applies);

(vi)

to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes (except this paragraph does not permit the disclosure of any information under section 275(4) of the PPSA unless section 275(7) of the PPSA applies);

(vii)

to whom or for whose benefit that Finance Party charges, assigns or otherwise creates a Security Interest (or may do so) pursuant to clause 26.6 (“Security over Lenders’ rights”);

(viii)

who is a party to this agreement; or

(ix)

with the prior written consent of the Borrower,

in each case, such Confidential Information as that Finance Party shall consider appropriate, provided that:

(x)

in the case of any Confidential Information which a Finance Party proposes to disclose to any person referred to in sub-paragraphs (i), (ii), (iii) or (iv) above, the person to whom the Confidential Information is to be given is:

(A)

informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information; and

(B)

must be subject to professional obligations to maintain the confidentiality of the information disclosed or, if not, must first enter into a binding confidentiality agreement (in a form reasonably acceptable to the Borrower) with the disclosing Finance Party;

(xi)

in the case of any Confidential Information which a Finance Party proposes to disclose to any person referred to in sub-paragraphs (b)(v), (b)(vi), (b)(vii) or (b)(ix) above, the person to whom the Confidential Information is to be given is informed is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information, except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances; and

(c)

to any person appointed by that Finance Party or by a person to whom sub-paragraph (b)(i) or (b)(ii) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this paragraph (c), provided that the service provider to whom the Confidential Information is to be given has entered into a binding confidentiality agreement (in a form reasonably acceptable to the Borrower) with the disclosing Finance Party.

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42.3

Privacy

(a)

If the Agent receives a request from a Finance Party, the Agent will provide a privacy notice (in the form recommended by the Asia Pacific Loan Market Association (Australian Branch) or as otherwise directed by a Finance Party) to a representative of the officers of an Obligor whose personal information has been collected on behalf of the Finance Parties, which details the manner in which personal information collected in connection with this agreement may be used and disclosed by the Finance Parties.

(b)

To the extent that any information relating to an Obligor of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, this agreement comprises personal information of any officer, director or employee of an Obligor, each Finance Party agrees to hold that personal information in accordance with the Australian Privacy Principles.

42.4

Continuing obligations

The obligations in this clause 42 are continuing and, in particular, shall survive and remain binding on each Finance Party for a period of 12 months from the earlier of:

(a)

the date on which all amounts payable by the Obligors under or in connection with this agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and

(b)

the date on which such Finance Party otherwise ceases to be a Finance Party.

42.5

Entire agreement

This clause 42 constitutes the entire agreement between the Obligors and the Finance Parties in relation to the obligations of the Finance Parties under the Finance Documents regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information.

42.6

Inside information

Each Finance Party acknowledges that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and each of the Finance Parties undertakes not to use any Confidential Information for any unlawful purpose.

42.7

Notification of disclosure

Each of the Finance Parties agrees (to the extent permitted by law and regulation) to inform the Borrower upon becoming aware that Confidential Information has been disclosed in breach of this clause 42.

43	Counterparts

This agreement may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this agreement.

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44	Indemnities and reimbursement

All indemnities and reimbursement obligations (and any other payment obligations of any Obligor) in this agreement are continuing and survive termination of this agreement, repayment of the Utilisations and cancellation or expiry of the Commitments.

45	Code of Banking Practice

The Code of Banking Practice does not apply to this agreement and the transactions under it.

46	Governing law and jurisdiction

(a)

The law in force in New South Wales governs this agreement. To the extent permitted by law, the law of the Commonwealth as it applies in that jurisdiction governs a security interest provided for under this agreement.

(b)

The parties submit to the exclusive jurisdiction of the courts of New South Wales (including a dispute relating to the existence, validity or termination of this agreement) (a “ Dispute ”). The parties agree that the courts of New South Wales are the most appropriate and convenient courts to settle Disputes and accordingly no such party will argue to the contrary.

(c)

This clause 46 is for the benefit of the Finance Parties only. As a result, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions.

47	Contractual recognition of Bail-in

Notwithstanding any other term of any Finance Document or any other agreement, arrangement or understanding between the parties, each party acknowledges and accepts that any liability of any party to any other party under or in connection with the Finance Documents may be subject to Bail-In Action by the relevant Resolution Authority and acknowledges and accepts to be bound by the effect of:

(a)

any Bail-In Action in relation to any such liability, including (without limitation):

(i)

a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability;

(ii)

a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and

(iii)

a cancellation of any such liability; and

(b)

a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability.

EXECUTED as an agreement

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Schedule 1 – Original Obligors


Name	Address and notice details
GWI Acquisitions Pty Ltd	ACN	615 317 130

	Address	Level 3, 33 Richmond Road, Keswick SA 5035

	Fax	+61 8 8343 5454

	Telephone	+61 8 8343 5455

	Email	mmorris@gwrr.com

	Attention	Chief Financial Officer, GWA

Genesee & Wyoming Australia Pty Ltd	ABN	17 079 444 296

	Address	Level 3, 33 Richmond Road, Keswick SA 5035

	Fax	+61 8 8343 5454

	Telephone	+61 8 8343 5455

	Email	mmorris@gwrr.com

	Attention	Chief Financial Officer, GWA

GWI Holdings No.2 Pty Ltd	ABN	53 132 989 998

	Address	Level 3, 33 Richmond Road, Keswick SA 5035

	Fax	+61 8 8343 5454

	Telephone	+61 8 8343 5455

	Email	mmorris@gwrr.com

	Attention	Chief Financial Officer, GWA

GWI Holdings Pty Ltd	ABN	37 094 819 806

	Address	Level 3, 33 Richmond Road, Keswick SA 5035

	Fax	+61 8 8343 5454

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	Telephone	+61 8 8343 5455

	Email	mmorris@gwrr.com

	Attention	Chief Financial Officer, GWA

Genesee & Wyoming Australia Eastern Pty Ltd	ABN	68 142 367 280

	Address	Level 3, 33 Richmond Road, Keswick SA 5035

	Fax	+61 8 8343 5454

	Telephone	+61 8 8343 5455

	Email	mmorris@gwrr.com

	Attention	Chief Financial Officer, GWA

GWA (North) Pty Ltd	ABN	92 144 081 774

	Address	Level 3, 33 Richmond Road, Keswick SA 5035

	Fax	+61 8 8343 5454

	Telephone	+61 8 8343 5455

	Email	mmorris@gwrr.com

	Attention	Chief Financial Officer, GWA

SA Rail Pty Limited	ABN	55 077 946 340

	Address	Level 3, 33 Richmond Road, Keswick SA 5035

	Fax	+61 8 8343 5454

	Telephone	+61 8 8343 5455

	Email	mmorris@gwrr.com

	Attention	Chief Financial Officer, GWA

Viper Line Pty Limited	ABN	63 092 437 691

	Address	Level 3, 33 Richmond Road, Keswick SA 5035

	Fax	+61 8 8343 5454

	Telephone	+61 8 8343 5455

	Email	mmorris@gwrr.com

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	Attention	Chief Financial Officer, GWA

Freightliner Australia Pty Ltd	ABN	51 122 522 123

	Address	Level 3, 33 Richmond Road, Keswick SA 5035

	Fax	+61 8 8343 5454

	Telephone	+61 8 8343 5455

	Email	mmorris@gwrr.com

	Attention	Chief Financial Officer, GWA

FLA Coal Services Pty Ltd	ABN	38 137 483 240

	Address	Level 3, 33 Richmond Road, Keswick SA 5035

	Fax	+61 8 8343 5454

	Telephone	+61 8 8343 5455

	Email	mmorris@gwrr.com

	Attention	Chief Financial Officer, GWA

Freightliner Australia Coal Haulage Pty Ltd	ABN	46 137 483 713

	Address	Level 3, 33 Richmond Road, Keswick SA 5035

	Fax	+61 8 8343 5454

	Telephone	+61 8 8343 5455

	Email	mmorris@gwrr.com

	Attention	Chief Financial Officer, GWA

ARG Sell Down No1 Pty. Limited	ABN	65 096 337 861

	Address	Level 3, 33 Richmond Road, Keswick SA 5035

	Fax	+61 8 8343 5454

	Telephone	+61 8 8343 5455

	Email	mmorris@gwrr.com

	Attention	Chief Financial Officer, GWA

GWA Northern Pty Ltd	ABN	49 092 437 628

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		Address		Level 3, 33 Richmond Road, Keswick SA 5035

		Fax		+61 8 8343 5454

		Telephone		+61 8 8343 5455

		Email		mmorris@gwrr.com

		Attention		Chief Financial Officer, GWA

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Schedule 2 – Original Lenders and MLAs

Part A – Original Lenders and MLAs


Name	Address and notice details
Australia and New Zealand Banking Group Limited	ABN	11 005 357 522

	Address	Level 12, 100 Queen Street, Melbourne VIC 3000

	Fax	+61 3 8523 4543

	Telephone	+61 3 8655 6645

	Email	Chandana.Perera@anz.com

	Attention	Chandana Perera, Director, Project and Export Finance

Bank of America, N.A. Australian Branch	ABN	51 064 874 531

	Address	Level 19, 120 Collins Street, Melbourne VIC 3000

	Fax	+61 3 9659 2831

	Telephone	+61 3 9659 2363

	Email	Michael.senyard@baml.com

	Attention	Michael Senyard – Director Corporate Banking

BNP Paribas	ABN	23 000 000 117

	Address	Level 5, 60 Castlereagh Street, Sydney NSW 2000

	For credit matters :

	Fax	+61 2 9619 6107

	Telephone	+61 2 9619 6435 / +61 2 9216 8633

	Email	Justin.chan- sew@au.bnpparibas.com / Janie.Shi@au.bnpparibas.com

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Name	Address and notice details
	Attention	Justin Chan-Sew / Janie Shi

	For operational matters :

	Fax	+61 2 9006 9063

	Email	bnppops@au.bnpparibas.com

	Copy to	louise.xie@au.bnpparibas.com / kazue.moreland@au.bnpparibas.com

	Attention	Louise Xie/Kazue Moreland

Citibank, N.A. Sydney Branch	ABN	34 072 814 058

	Address	Level 23, 2 Park Street, Sydney NSW 2000

	Fax	+61 2 8225 5201 / +61 2 8225 5111

	Telephone	+61 2 8225 4610 / +61 2 8225 2615

	Email	Brian1.Nash@citi.com / au.loanoperations@citi.com

	Attention	Brian Nash / Mary Winata

Commonwealth Bank of Australia	ABN	48 123 123 124

	For credit matters :

	Address	Level 22, Tower 1, 201 Sussex St, Sydney, NSW 2000

	Telephone	+61 2 9303 8250 / +61 2 9117 1301

	Email	Alaster.Long@cba.com.au / Maryrose.Estacio@cba.com.au

	Attention	Alaster Long / Maryrose Estacio

	For operational matters :

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Name	Address and notice details
	Address	Level 9, 101 George St, Parramatta, NSW 2150 / Level 22, Tower 1, 201 Sussex St, Sydney, NSW 2000

	Fax	1300 857 262 / 02 9118 6655

	Telephone	1800 115 891 / 1300 881 394

	Email	corplend@cba.com.au / iblending@cba.com.au

	Attention	Institutional Banking Loan Administration / Institutional Loan Management Group

JPMorgan Chase Bank, N.A.	ABN	43 074 112 011

	For credit matters :

	Address	Level 18, 85 Castlereagh Street, Sydney NSW 2000

	Fax	+61 2 9003 8158

	Telephone	+61 2 9003 8250 / +1 203 944 8424

	Email	CB.Intl.Aust-NZ.Team@jpmorgan.com / Scott.Farquhar@jpmorgan.com

	Attention	Scott Farquhar

	For operational matters :

	Telephone	+91 80 679 05450

	Email	asia.loan.operations@jpmorgan.com

	Copy to	CB.Intl.Aust-NZ.Team@jpmorgan.com

National Australia Bank Limited	ABN	12 004 044 937
	Address	Level 32, 500 Bourke St, Melbourne 3000

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Name	Address and notice details
	Fax	+61 3 8641 0560

	Telephone	+61 3 8634 2950 / +61 3 8697 9003

	Email	Fabian.fuentes@nab.com.au / Fred.truong@nab.com.au

	Attention	Fabian Fuentes / Fred Truong

Sumitomo Mitsui Banking Corporation	ARBN	114 053 459

	Address	Level 35, The Chifley Tower, 2 Chifley Square, Sydney NSW 2000

	Fax	+61 2 9376 1863

	Telephone	+61 2 9376 1882

	Email	tarek_elrakshy@au.smbc.co.jp

	Attention	Tarek El-Rakshy, Senior Vice President

The Bank of Tokyo-Mitsubishi UFJ, Ltd.	ABN	75 103 418 882

	Address	Level 26, 1 Macquarie Place, Sydney NSW 2000

	For operational matters:

	Fax	+61 2 9296 1309

	Telephone	+61 2 9296 1372 / +61 2 9296 1196

	Email	loans@au.mufg.jp / tim_kapadia@au.mufg.jp / rui_yang@mufg.jp

	Attention	Tim Kapadia / Rui Yang

	For credit matters :

	Address	Level 22, 600 Bourke Street, Melbourne VIC 3000

	Telephone	+61 3 9602 8923 / +61 3 9602 8930

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Name	Address and notice details
	Email	hoa_huynh@au.mufg.jp / david_marriner@au.mufg.jp

	Attention	Hoa Huynh / David Marriner

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Part B – Commitments


Original Lender	Tranche A1 Commitment (A$)		Tranche A2 Commitment (A$)		Tranche B Commitment (A$)		Total Commitments (Lender) (A$)
Australia and New Zealand Banking Group Limited	$	20,724,600	$	89,275,400	$	25,000,000	$	135,000,000
Bank of America, N.A. Australian Branch	$	7,536,200	$	32,463,800		Nil	$	40,000,000
BNP Paribas	$	12,246,500	$	52,753,500		Nil	$	65,000,000
Citibank, N.A. Sydney Branch	$	7,536,200	$	32,463,800		Nil	$	40,000,000
Commonwealth Bank of Australia	$	20,724,600	$	89,275,400		Nil	$	110,000,000
JPMorgan Chase Bank, N.A.	$	7,536,200	$	32,463,800		Nil	$	40,000,000

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Original Lender	Tranche A1 Commitment (A$)		Tranche A2 Commitment (A$)		Tranche B Commitment (A$)		Total Commitments (Lender) (A$)
National Australia Bank Limited	$	20,724,600	$	89,275,400	$	25,000,000	$	135,000,000
Sumitomo Mitsui Banking Corporation	$	20,724,600	$	89,275,400		Nil	$	110,000,000
The Bank of Tokyo-Mitsubishi UFJ, Ltd.	$	12,246,500	$	52,753,500		Nil	$	65,000,000

Total Commitments (A$)	$	130,000,000	$	560,000,000	$	50,000,000	$	740,000,000

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Project Monty - Syndicated Facility Agreement

Schedule 3 – Utilisation Notice

Part A – Form of Utilisation Notice (Loans)

To: [insert] (ABN [INSERT]) (“ Agent ”)

Attention:

[Date]

Utilisation Notice – Project Monty - Syndicated Facility Agreement between GWI Acquisitions Pty Ltd (ACN 615 317 130) (“Borrower”), the Agent and the Lenders defined therein dated [•] 2016 (“Syndicated Facility Agreement”)

Under clause 5 (“Utilisations - Loans”) of the Syndicated Facility Agreement, the Borrower gives notice as follows.

1	[Utilisation under [Tranche A1]/[Tranche A2]/[Tranche B]

[The Borrower wishes to borrow a Loan under [insert Facility] .

(a)

The requested Utilisation Date is [•].

(b)

The amount of the proposed Loan is A$[•] (or, if less, the Available Facility).

(c)

The requested first Interest Period is [•].

(d)

[The proposed Loan is to be paid to:


Account number		[•]

Account name		[•]

Bank		[•]

Branch		[•]

BSB		[•]]

[This Loan is to be made in [whole][part] for the purpose of refinancing [ identify maturing Tranche B Loan ]

2	Representations and warranties

The Borrower represents and warrants that:

(a)

the Repeating Representations are correct and not misleading on the date of this notice and will be correct and not misleading on the requested Utilisation Date; and

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(b)

[no Default or Review Event is continuing or would result from the issue of the Loan] [ Note: Retain wording for the issue of a new Loan ];

(c)

[no Event of Default is continuing or would result from the issue of the Letter of Credit] [ Note: Retain wording for a Rollover Loan ].

3	Interpretation

Terms not otherwise defined in this notice have the meaning given in the Syndicated Facility Agreement (including by incorporation). Clause 1.2 (“Interpretation”) of the Syndicated Facility Agreement applies to this notice.

[Name of person] being

an Authorised Officer of

GWI Acquisitions Pty Ltd (ACN 615 317 130)

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Part B – Form of Utilisation Notice (Letter of Credit)

To:	[insert] (ABN [INSERT]) (“ Agent ”)

Copy to:

[ insert Issuing Bank ]

Attention:

[Insert]

[Date]

Under clause 6 (“Utilisations – Letters of Credit”) of the Syndicated Facility Agreement, the Borrower gives notice as follows.

1	[ Issue of Letter of Credit/Renewal/Replacement of Letter of Credit ]

We wish to arrange for [a Letter of Credit to be issued][an existing Letter of Credit to be renewed/replaced] by [ insert name of Issuing Bank ] (“ Issuing Bank ”) under Tranche B on the following terms:


Proposed Utilisation Date:		[•] (or, if that is not a Business Day, the next Business Day)

Amount		[•] (or, if less, the Available Facility under Tranche B)

Issued in connection with:		[ insert description of the underlying contract pursuant to which the LC is required to be issued ]

[Details of existing Letter of Credit]:		[ insert relevant details, e.g. as LC number ]

Beneficiary of the Letter of Credit:		[ Note: If LC is being renewed or replaced, the Beneficiary should remain unchanged ]

Delivery instructions		[ insert specific requirements (if any) of the Beneficiary of the LC ]

Expiry Date of the requested Letter of Credit:		[•]

2	Representations and warranties

The Borrower represents and warrants that:

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(a)

the Repeating Representations are correct and not misleading on the date of this notice and will be correct and not misleading on the requested Utilisation Date;

(b)

[no Default or Review Event is continuing or would result from the issue of the Letter of Credit] [ Note: Retain wording for the issue of a new Letter of Credit ];

(c)

[no Event of Default is continuing or would result from the issue of the Letter of Credit] [[ Note: Retain wording for the renewal or replacement of an existing Letter of Credit].

3	[Expiry Date

The Borrower acknowledges and agrees, in respect of the requested Letter of Credit which has [no expiry date][an expiry date falling after the Maturity Date for Tranche B] that clause 6.9 (“Letter of Credit which does not expire before the Maturity Date for Tranche B”) of the Syndicated Facility Agreement will apply to the extent that the requested Letter of Credit has not been repaid or prepaid.]

4	Interpretation

[Name of person] being

an Authorised Officer of

GWI Acquisitions Pty Ltd (ACN 615 317 130)

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Schedule 4 – Interest Period Selection Notice

To:	[insert name and ABN] (“ Agent ”)

Attention:

[insert]

[Date]

Interest Period Selection Notice – Project Monty Syndicated Facility Agreement between GWI Acquisitions Pty Ltd (ACN 615 317 130) (“Borrower”), the Agent and the Lenders defined therein dated [•] 2016 (“Syndicated Facility Agreement”)

Under clause 11.2 (“Notification of Interest Periods”) of the Syndicated Facility Agreement, the Borrower gives notice as follows.

1	Interest Period Selection

The Borrower selects the following Interest Periods for the following Loans.


Loan	Utilisation Date	New Interest Period ¹
[ insert details ]	[ insert details ]

Each Interest Period begins on the day when the current Interest Period for the relevant Loan ends.

2	[Consolidation of Loans

The Borrower notifies the Agent that the following Tranche B Loans should be consolidated into, and treated as, a single Tranche B Loan in accordance with clause 11.4 (“Consolidation of Loans”) of the Agreement.] [ Note: Delete if not applicable ]

3	Representations and warranties

The Borrower confirms that the Repeating Representations are correct and not misleading on the date of this notice and that each will be correct and not misleading on the next Interest Payment Date.

4	Interpretation

[Name of person] being

an Authorised Officer of

GWI Acquisitions Pty Ltd (ACN 615 317 130)

1	Must be an Interest Period set out in clause 11.2 (“Notification of Interest Period”).

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Schedule 5 – Form of Transfer Certificate

PROJECT MONTY – TRANSFER CERTIFICATE

To:	[ insert ] (the “ Agent ”)

From:

[ The Existing Lender ] (the “ Existing Lender ”) and [ The New Lender ] (the “ New Lender ”)

Project Monty Syndicated Facility Agreement between GWI Acquisitions Pty Ltd

(ACN 615 317 130) (“Borrower”), the Agent and the Lenders defined therein dated

[•] 2016 (“Syndicated Facility Agreement”)

We refer to the Syndicated Facility Agreement. This is a Transfer Certificate. Terms defined in the Syndicated Facility Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate. Clause references as (unless otherwise specified) to the Syndicated Facility Agreement.

2.	We refer to clause 26.4 (“Procedure for novation”) of the Syndicated Facility Agreement:

(a)

The Existing Lender and the New Lender agree to the Existing Lender and the New Lender novating [all/the part] of the Existing Lender’s Commitment referred to in the Schedule with effect from and including the Transfer Date in accordance with clause 26.4 (“Procedure for novation”) and corresponding rights and obligations;

(b)

The proposed Transfer Date is [ insert ];

(c)

To the extent permitted by law, the Existing Lender assigns to the New Lender all rights of action that it may have to the extent they relate to its Commitment and its corresponding rights and obligations and all sums provided under or in connection with the Commitment; and

(d)

The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of clause 38.2 (“Addresses”) are set out in the Schedule.

3.	The New Lender expressly acknowledges the matters set out in clause 26.3 (“Limitation of responsibility of Existing Lenders”).

4.	This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.

5.	This Transfer Certificate is governed by the laws of New South Wales.

6.	This Transfer Certificate has been entered into on the date stated below, being the date this Transfer Certificate is executed by the Agent.

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7.	This Transfer Certificate may be executed in counterpart and each signed counterpart taken together will constitute one instrument.

THE SCHEDULE

Commitment/rights and obligations to be transferred

[insert relevant details]

[Facility Office address, fax and phone number, email address and attention details for

notices and account details for payments,]

This Transfer Certificate is [executed as a deed and] accepted by the Agent and the Transfer Date is confirmed as [ insert date ].

[ insert execution blocks for the Existing Lender, New Lender and Agent ]

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Schedule 6 – Initial Conditions Precedent

Each of the following in form and substance satisfactory to the Agent (acting on the instructions of all Lenders):

(a)

( Verification Certificate ) A duly executed Verification Certificate from each Obligor, dated not earlier than 5 days before Financial Close, provided to the Agent together with each relevant annexure thereto.

(b)

( Equity ) Evidence that on or before Financial Close, the ratio of (i) Finance Debt under the Term Loan Facilities (assuming the Term Loan Facilities are fully drawn) to (ii) payments for the subscription for shares and/or units in the relevant Obligors and/or Subordinated Debt does not exceed 45:55.

(c)

( Authorisations ) A copy of each Major Authorisation and each other material Authorisation required by the Obligors in connection with the entry into and performance of the transactions contemplated by any Transaction Document or for the validity and enforceability of any Transaction Document, and evidence that each is in full force and effect.

(d)

( Completion of Transaction ) Evidence that:

(i)

the Transaction will, simultaneously with Financial Close, be completed in accordance with the Share Sale Agreement; and

(ii)

there has been:

(A)

no waiver of any condition precedent or condition subsequent (where such waiver of condition subsequent has or would reasonably likely to have an adverse effect on the interests of the Lenders) set out in;

(B)

no waiver or material amendment of any completion step set out in; or

(C)

no material amendment of,

the Share Sale Agreement without the Agent’s approval (not to be unreasonably withheld or delayed, acting on the instructions of all Lenders) and all conditions precedent not waived have been or will be satisfied on or before Financial Close.

(e)

( Finance Documents ) Duly executed counterparts of each of the Finance Documents which:

(i)

have been duly stamped or, if the Agent (acting on the instructions of the Lenders) permits, sufficient same day funds to meet all liabilities of Taxes on or in respect of them or evidence that they are not liable to stamp duty; and

(ii)

are in registrable form, together with all fully executed documents and other things necessary to effect registration of them in all relevant jurisdictions.

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(f)

( Executed documents ) A copy of the duly executed Share Sale Agreement and each Material Contract.

(g)

( Security ) Evidence that each Security which is to be granted at Financial Close or immediately after has been registered on the PPSR.

(h)

( Title Documents ) All documents and evidence of title to the Secured Property including:

(i)

share certificates for the Obligors and a certified copy of the share registers for each Obligor; and

(ii)

executed transfer forms in blank in respect of the shares and units the subject of the Security,

and evidence that the relevant constituent documents do not restrict transfers of shares on enforcement.

(i)

( Legal opinions ) Opinions addressed to the Beneficiaries from time to time from:

(i)

Clifford Chance in relation to the Finance Documents;

(ii)

Allens in relation to the Borrower’s entry into the Share Sale Agreement and GRail’s entry into the Rail Haulage Agreement; and

(iii)

HWL Ebsworth in relation to the Freight Terminal Mortgage.

(j)

( Fees ) Evidence that the Borrower has paid (or will cause to be paid) all fees, costs and expenses due and payable to the Beneficiaries (and its advisers and consultants) on or before the first Utilisation Date.

(k)

( Financial Model ) Delivery of the audited Financial Model.

(l)

( Searches ) Results of searches of the Obligors and GRail at ASIC and on the PPSR.

(m)

( Funds Flow Statement ) Delivery of the Funds Flow Statement.

(n)

( Insurance ) Evidence that all insurances required in accordance with clause 23.5(d) (“Insurance”) are in full force and effect, including customary loss payee/interested party/additional insured notations in favour of the Security Trustee on such policies.

(o)

( Permitted Financial Indebtedness and Permitted Security Interest ) Evidence that after Financial Close, the only Finance Debt will be Permitted Financial Indebtedness and the only Security Interest will be a Permitted Security Interest.

(p)

( Regulatory approval ) If required, all regulatory, competition and FIRB approvals have been obtained in relation to the Transaction.

(q)

( KYC ) Any “Know Your Customer” information in respect of the Obligors to the extent necessary to comply or manage compliance with anti-money laundering and counter-terrorism legislation, economic and trade sanctions risk, or any Lender’s internal policies (being a policy which is not specifically targeted at the Obligors) in relation to “Know Your Customer” or any laws or regulations in Australia or other jurisdictions applying to a transaction under the Finance Documents.

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(r)

( Updated due diligence ) Delivery of updates (if any) to the Due Diligence Reports (as defined in the Mandate, Commitment and Fee Letter) provided to the Original Lenders on or before the Bid Date.

(s)

( Group Structure Diagram ) Delivery to the Agent of a group structure diagram, certified by 2 directors of Hold Co, showing (1) the details of the Obligors immediately prior to completion of the Transaction on the date of Financial Close and (2) the details of the Obligors after Financial Close and the accession to this agreement of GRail upon satisfaction of the conditions under clause 27.2 (“Accession of GRail”).

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Schedule 7 – Tranche A1 Repayment Schedule


Tranche A1 Repayment Date	Tranche A1 Repayment Instalment (A$)
31 March 2017	$	4,500,000
30 June 2017	$	4,500,000
30 September 2017	$	4,500,000
31 December 2017	$	4,500,000
31 March 2018	$	5,437,500
30 June 2018	$	5,437,500
30 September 2018	$	5,437,500
31 December 2018	$	5,437,500
31 March 2019	$	5,437,500
30 June 2019	$	5,437,500
30 September 2019	$	5,437,500
31 December 2019	$	5,437,500
31 March 2020	$	8,562,500
30 June 2020	$	8,562,500
30 September 2020	$	8,562,500
31 December 2020	$	8,562,500
31 March 2021	$	8,562,500
30 June 2021	$	8,562,500
30 September 2021	$	8,562,500
The date that is 5 years after the date of Financial Close	$	8,562,500

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Schedule 8 – Form of Accession Deed (Additional Obligor)

PROJECT MONTY SYNDICATED FACILITY AGREEMENT – ACCESSION DEED

(ADDITIONAL OBLIGOR)

To:	[ insert ] (the “ Agent ”)

From:

[ GRail / other Additional Obligor ] (the “ Additional Obligor ”), GWI Holdings No.2 Pty Ltd (ABN 53 132 989 998) (“ Hold Co ”) and GWI Acquisitions Pty Ltd (ACN 615 317 130) (“ Borrower ”)

Project Monty Syndicated Facility Agreement between GWI Acquisitions Pty Ltd

(ACN 615 317 130) (“Borrower”), the Agent and the Lenders defined therein dated

[•] 2016 (“Syndicated Facility Agreement”)

1.	We refer to the Syndicated Facility Agreement. This is an Accession Deed (Additional Obligor). Terms defined in the Syndicated Facility Agreement have the same meaning in this document unless given a different meaning herein.

From the date that the Agent executes this document, the Additional Obligor agrees to become an Additional Obligor and to be bound by the terms of the Syndicated Facility Agreement as an Additional Obligor pursuant to clause [27.2 (“Accession of GRail”) / 27.3 (“New Obligors”)] of the Syndicated Facility Agreement. The Additional Obligor is a company duly incorporated under the laws of [ name of relevant jurisdiction ].

The Additional Obligor acknowledges and agrees to each of the matters set out in clause [27.2 (“Accession of GRail”) / 27.3 (“New Obligors”)] of the Syndicated Facility Agreement and the Additional Obligor, Hold Co and the Borrower each confirm to the Agent that each of the conditions under clause [27.2(a) (“Accession of GRail”) / 27.3(a) (“New Obligors”)] of the Syndicated Facility Agreement have been, or will be on the date of this Accession Deed (Additional Obligor), satisfied.

4.	The Additional Obligor’s details for the purposes clause 38.2 (“Addresses”) of the Syndicated Facility Agreement are as follows:

Name and ABN/ACN/ARBN:

Address:

Fax No:

Telephone:

Email:

Attention:

5.	This Accession Deed (Additional Obligor) is a Finance Document and is governed by the laws of New South Wales.

6.	This Accession Deed (Additional Obligor) may be executed in counterpart and each signed counterpart taken together will constitute a single instrument.

Executed as a deed

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[ Insert execution blocks for all parties ]

Dated: [ to be inserted by the Agent ]

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Schedule 9 – Form of Obligor Resignation Deed

PROJECT MONTY SYNDICATED FACILITY AGREEMENT – OBLIGOR

RESIGNATION DEED

To:	[ insert ] (the “ Agent ”)

From:

[ resigning Obligor ] (the “ Retiring Obligor ”), GWI Holdings No.2 Pty Ltd (ABN 53 132 989 998) (“ Hold Co ”) and GWI Acquisitions Pty Ltd (ACN 615 317 130) (“ Borrower ”)

Dated:

Project Monty Syndicated Facility Agreement between GWI Acquisitions Pty Ltd

(ACN 615 317 130) (“Borrower”), the Agent and the Lenders defined therein dated

[•] 2016 (“Syndicated Facility Agreement”)

1.	We refer to the Syndicated Facility Agreement. This is a Obligor Resignation Deed. Terms defined in the Syndicated Facility Agreement have the same meaning in this document unless given a different meaning herein.

2.	Pursuant to clause 27.4 (“Resignation of Obligors”) of the Syndicated Facility Agreement, we request that from the date the Agent executes this document, the Retiring Obligor be released from its obligations as an Obligor under the Syndicated Facility Agreement.

3.	Pursuant to clause 27.4(b) (“Resignation of Obligors”) of the Syndicated Facility Agreement, we confirm that:

(a)

there is no Default or Review Event subsisting or would result from the Retiring Obligor ceasing to be an Obligor;

(b)

there is no payment due from the Retiring Obligor under the Finance Documents; and

(c)

following the Retiring Obligor’s release, the conditions in clause 23.6(e) (“Obligor coverage test”) of the Syndicated Facility Agreement will continue to be satisfied.

4.	This Obligor Resignation Deed is governed by the laws of New South Wales.

5.	This Obligor Resignation Deed may be executed in counterpart and each signed counterpart taken together will constitute a single instrument.

Executed as a deed

[ Insert execution blocks for all parties ]

Dated: [ to be inserted by the Agent ]

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Schedule 10 – Form of Compliance Certificate

PROJECT MONTY – COMPLIANCE CERTIFICATE

To:	[ insert ] (the “ Agent ”)

From:

GWI Acquisitions Pty Ltd (ACN 615 317 130) (“ Borrower ”)

Dated:

Project Monty Syndicated Facility Agreement between GWI Acquisitions Pty Ltd

(ACN 615 317 130) (“Borrower”), the Agent and the Lenders defined therein dated

[•] 2016 (“Syndicated Facility Agreement”)

1.	We refer to the Syndicated Facility Agreement. This is a Compliance Certificate in respect of the Calculation Date falling on [31 March/30 June/30 September/31 December] [ insert year ].

2.	Terms defined in the Syndicated Facility Agreement have the same meaning when used in this Compliance Certificate unless given a different meaning in this Compliance Certificate.

3.	We confirm that:

(a)

in respect of the Calculation Date to which this Compliance Certificate relates:

(i)

the Leverage Ratio is [ insert ]; and

(ii)

the DSCR is [ insert ];

(b)

the Financial Covenants [have/not] been met;

(c)

no Default or Review Event is continuing[; and

(d)

a Clean Down Period occurred between [ insert dates ].]

4.	Calculations evidencing the Leverage Ratio and the DSCR are attached to this Compliance Certificate.

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Schedule 11 – Form of Letter of Credit

Part A – Form of Letter of Credit

[insert date]


To:		[insert beneficiary’s name#]

Address:		[insert beneficiary’s address]

We #insert name and ABN/ACN/ARBN of Issuing Bank# (“ Financier ”) issue an irrevocable Standby Letter of Credit on the following terms:

Irrevocable Standby Letter of Credit No. #insert#

dated #insert#


Applicant:		#insert name of Applicant#

Beneficiary:		#insert name of beneficiary#

Original amount :		A$#insert maximum liability amount#

Expiry Date :		#insert expiry date or “Not applicable”#

By demand on:		the Financier in person, by letter via registered mail or via authenticated SWIFT message and must be received in legible form to the Financier at its address and by a particular department or officer (if any) as follows (or such other address in Victoria as may be notified in writing from time to time by the Financier to the Beneficiary):

		Financier Address for a demand to be made in person or by registered mail:
		Name: [insert]
		Address: [insert]
		Fax: [insert]
		E-mail: [insert]
		Reference: [insert]

		Issuing Bank SWIFT Details for a demand to be made by SWIFT:
		Swift Code: [insert]
		SWIFT CODE: [insert]
		Reference: [insert]

		With a copy of all demands electronically by e-mail to:
		E-mail: [insert]

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Payable at:		Sight.

Enfaced :		Drawn under Irrevocable Standby Letter of Credit No. #insert# dated #insert#.

Issued in connection with:		#insert details of underlying agreement# (“ Agreement ”)

To claim under this Letter of Credit, the following items must be presented to the Financier at its address stated above on or before the Expiry Date:

(a)	a demand drawn and enfaced as stated above; and

(b)	a certificate signed by 2 directors or a director and secretary of the Beneficiary or under the seal of the Beneficiary which must:

(i)

state that the demand is presented under Letter of Credit No. #insert# dated #insert#; and

(ii)

state that there has been a failure to pay in full or in part an amount due under the Agreement; and

(iii)

state the amount which has not been paid (“ Default Sum ”); and

(iv)

state that the Beneficiary has demanded payment of the Default Sum from the Applicant and that the Applicant has not met the demand; and

(v)

request the Financier to pay to the Beneficiary the lesser of the Default Sum or the current amount of this Letter of Credit.

If the Beneficiary requires same day value on the day of presentation, the items must be presented by [3.00 pm #Sydney# time].

[Partial drawings are not permitted.]

[Partial drawings are permitted. The original amount of this Letter of Credit automatically reduces by the amount of all drawings under this Letter of Credit. ]

This Letter of Credit is subject to the International Standby Practices – ISP 98 International Chamber of Commerce Brochure No. 590, or any subsequent revision of it.

The Financier agrees with the Beneficiary that demands drawn under and in compliance with the terms of this Letter of Credit will be paid on presentation in person to the Financier at the address set out above, without reference to the Applicant (even if the Applicant has given the Financier notice not to pay any money) and without regard to the performance or non-performance of the Applicant or Beneficiary under the terms of the Agreement. .

The Financier need not make a payment under this Letter of Credit if, as a result, the total of all payments made by it under this Letter of Credit would exceed the original amount of this Letter of Credit.

The Financier does not have to do anything under this Letter of Credit if it considers that doing so would breach any anti-money laundering, counter-terrorism financing or economic or trade sanction laws or regulations.

This Letter of Credit is personal to the Beneficiary. It cannot assign, transfer, charge or otherwise deal with its rights under this Letter of Credit and the Financier will not recognise any purported assignment, transfer, charge or dealing.

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Notwithstanding anything stated in this Letter of Credit, the Financier has the right to terminate the Letter of Credit at any time by paying, without being required to do so, the Beneficiary the maximum amount that may be demanded under this Letter of Credit at that time.

This Letter of Credit is governed by the laws of [INSERT]. The Financier and the Beneficiary (on acceptance of this Letter of Credit) submit to the non-exclusive jurisdiction of the courts of that place.

For and on behalf of #name of Financier#

#insert signing clause for Financier

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Part B – Form of Bank Guarantee

Bank Guarantee

Details

Date



Beneficiary	Name	#insert Beneficiary’s name#

	ABN/ACN/ ARBN	#insert#

	Address	#insert beneficiary’s address#

Financier	Name	#insert Issuing Bank’s details#

	ABN/ACN/ ARBN	#insert#

	Address	#insert Financier’s address#

Company	Name	#insert Company’s name#

	ABN/ACN/ ARBN	#insert#

	Address	#insert Company’s address#

Instrument Number	#insert instrument number#

Maximum Amount	A$#insert maximum amount that may be claimed under the guarantee#

Agreement	#insert name of agreement#

Date	#insert date#

Expiry Date	#insert latest date a claim may be made under the guarantee or “Not applicable”#

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1	Guarantee

The Financier irrevocably agrees to pay on demand from the Beneficiary complying with this guarantee an amount or amounts not exceeding the Maximum Amount in total.

2	Demands

Any demand under this guarantee must be:

(a)

in writing;

(b)

signed by 2 directors or a director and secretary of the Beneficiary or under the seal of the Beneficiary; and

(c)

presented in person at the Financier, by letter via registered mail or via authenticated SWIFT message and must be received in legible form to the Financier at its address and by a particular department or officer (if any) as follows (or such other address in Victoria as may be notified in writing from time to time by the Financier to the Beneficiary):

Financier Address for a demand to be made in person or by registered mail:

Name: [insert]

Address: [insert]

Fax: [insert]

E-mail: [insert]

Reference: [insert]

Issuing Bank SWIFT Details for a demand to be made by SWIFT:

Swift Code: [insert]

SWIFT CODE: [insert]

Reference: [insert]

With a copy of all demands electronically by e-mail to:

E-mail: [insert]

3	Payments

The Financier agrees to make any payment under this guarantee without set-off or counterclaim, and without reference to the Company. This applies:

(a)

even if the Company or any other person has asked the Financier not to make payment; and

(b)

irrespective of the performance or non-performance by the Company or the Beneficiary of the Agreement.

If the Financier makes a payment for an amount less than the Maximum Amount, the Financier agrees to issue to the Beneficiary a replacement guarantee for the balance of the Maximum Amount.

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4	Cancellation

4.1

Cancellation by Beneficiary

This guarantee is cancelled if the guarantee is returned to the Financier together with an irrevocable confirmation from the Beneficiary to the Financier that it will not make or continue any claim under the guarantee after it has been returned.

4.2

Expiry

If this guarantee has an Expiry Date, this guarantee expires at #insert time eg 4.00 pm (Melbourne time) on the Expiry Date (unless it has been cancelled earlier).

4.3

Paying the Beneficiary

The Financier may at any time, without being required to do so, pay the Beneficiary the Maximum Amount or, after having made a part payment of the Maximum Amount, the balance outstanding or any lesser amount that the Beneficiary may require, and thereupon this guarantee expires.

5	Dealing with rights

The Beneficiary may not assign or otherwise deal with its rights under this guarantee or allow any interest in them to arise or be varied, in each case, without the Financier’s written consent.

6	[More than one Beneficiary

If 2 or more persons are named as the Beneficiary, this guarantee is for the benefit of them jointly. A demand under this guarantee by any one or more of them is taken to be a demand by both or all of them jointly. If the Financier makes a payment to any one or more of them under this guarantee, the payment discharges this guarantee to the extent of the amount paid. ] [ Note: Delete if not applicable]

7	Anti-money laundering and sanctions

The Financier does not have to do anything under this guarantee if it considers that doing so would breach any anti-money laundering, counter-terrorism financing or economic or trade sanctions laws or regulations.

8	Uniform Rules for Demand Guarantees

This guarantee is subject to the Uniform Rules for Demand Guarantees 2010 Revision, Publication No. 758.

9	Governing law and jurisdiction

The law in force in [INSERT] governs this guarantee.

The Financier and the Beneficiary (on acceptance of this guarantee) submit to the non-exclusive jurisdiction of the courts of that place. To the extent permitted by law, the law of the Commonwealth as it applies in that jurisdiction governs a security interest provided for under this guarantee.

For and on behalf of #name of Financier#

#insert signing clause for Financier#

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Schedule 12 – Form of Verification Certificate

PROJECT MONTY – VERIFICATION CERTIFICATE

To:	[ insert name and ABN of Agent ] (“ Agent ”)

From:

[ insert name and ABN of each Obligor delivering the certificate ]

([each an] “ Obligor ”)

Dated:

[ insert ]

Dear Sirs,

Project Monty Syndicated Facility Agreement between GWI Acquisitions Pty Ltd

(ACN 615 317 130) (“Borrower”), each Obligor, the Agent and the Lenders defined

therein dated [•] 2016 (“Syndicated Facility Agreement”)

1	I refer to the Syndicated Facility Agreement. Terms used in the Syndicated Facility Agreement have the same meaning in this Verification Certificate unless otherwise defined herein.

2	I am a Director of [the][each] Obligor and the confirmations and certifications given in this Verification Certificate are provided solely in my capacity as a Director of [the][each] Obligor.

3	Attached to this Verification Certificate and marked Annexure “A” is a copy of the certificate of incorporation of [the][each] Obligor.

4	Attached to this Verification Certificate and marked Annexure “B” is a copy of the constitution of [the][each] Obligor.

5	Attached to this Verification Certificate and marked Annexure “C” is a copy of the extract [Minutes of a meeting of the Board of Directors][circulating Directors’ resolutions] of [the][each] Obligor.

6	[Attached to this Verification Certificate and marked Annexure “D” is a copy of the extract resolution of the members of [ insert relevant Obligors ]]

[Attached to this Verification Certificate and marked Annexure “E” is a copy of each Major Authorisation and other material Authorisation required by [the][each] Obligor in connection with the entry into and performance transactions contemplated by the Transaction Documents or for the validity and enforceability of the Transaction Documents, being:

(i)

each SA Ground Lease;

(ii)

the AustralAsia Railway Project Concession Deed;

(iii)

the rail accreditation; and

(iv)

the ARTC Access Agreement.][ Note: Include in relevant Obligor certificate which is party to these documents ]

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8	[The Borrower confirms as follows:

(i)

the Transaction will, simultaneously with Financial Close, be completed in accordance with the Share Sale Agreement; and

(ii)

there has been:

(A)

no waiver or any condition precedent or condition subsequent (where such waiver of condition subsequent has or would reasonably be likely to have an adverse effect on the interests of the Lenders) set out in;

(B)

no waiver or material amendment of any completion step set out in; or

(C)

no material amendment of,

the Share Sale Agreement without the Agent’s approval and all conditions precedent not waived have been or will be satisfied on Financial Close.] [ Note: Include in the Borrower’s Verification Certificate ]

9	Attached to this Verification Certificate and marked “Annexure F” are the specimen signatures of those persons appointed by the Directors of [the][each] Obligor as an Authorised Officer (and whose appointment remains in full force and effect on the date of this certificate).

10	[Each][The] Obligor is solvent.

11	Each confirmation given in this Verification Certificate is correct as at the date of this certificate. Each document annexed to this Verification Certificate is true, correct and up-to-date and remains in full force and effect as at the date of this certificate.

Signed by:

Name:

Director of [ list each Obligor to whom the certificate relates ]

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Schedule 13 – Excluded Contracts

1	Rolling Stock Maintenance Agreement between Freightliner Australia Pty Ltd (“ Freightliner ”) and Downer EDI Rail Pty Ltd dated on or around 1 July 2015.

2	Equipment Lease Agreement between CIMC Rolling Stock Australia Pty Ltd (CARS) and Freightliner dated 26 February 2014.

3	Amended and Restated Rail Haulage Agreement between OneSteel Manufacturing Pty Limited (OneSteel), GWA and Arrium Limited (Guarantor) dated 17 July 2012.

4	Plant Hire Contract between Swietelsky CPB Rail Joint Venture (SCRJV) and Freightliner dated 6 April 2016.

5	Riverina Intermodal Freight and Logistics Hub Exclusivity Agreement between Council of the City of Wagga Wagga and GWA dated 18 November 2015.

6	Rail Haulage Services Agreement (Wee Waa Facility) between Freightliner and Namoi Cotton Alliance (unincorporated joint venture of Louis Dreyfus Commodities Melbourne JVP Pty Ltd and Namcott Marketing Pty Ltd) originally dated 1 July 2009, as amended and restated.

7	Standing Offer for Hook and Pull Services Agreement between Australian Rail Track Corporation Ltd (ARTC) and Freightliner dated 16 June 2016.

8	RailCorp Track Access Agreement between Rail Corporation New South Wales (“ RailCorp ”) and GWA as the ‘Rail Operator’ dated 27 June 2013 (as amended).

9	RailCorp Track Access Agreement between RailCorp and Freightliner as the ‘Rail Operator’ dated 19 June 2015.

10	Licence Agreement for Exclusive Management between Australian Rail Track Corporation Limited (“ ARTC ”) and GWA dated 10 November 2000.

11	Licence Agreement (Goods Sidings) between ARTC and GWA dated 1 June 2004.

12	Rail Management Agreement between Flinders Ports Pty Limited (ACN 097 377 172) (“ Flinders Ports ”) and GWA dated 12 January 2012.

13	Port Adelaide Bulk Precinct Rail Access Agreement between Flinders Ports and GWA dated 11 January 2012, as amended on 17 September 2012.

14	Each SA Ground Lease.

15	Memorandum of Underlease between Coffey Corporate Pty Ltd and GWA (‘Keswick Office Lease’).

16	Lease from Overland Consolidated Pty Limited (as landlord) to Freightliner (as tenant) dated 22 August 2008 (“Pymble Office Lease”).

17	Sandgate Depot Lease from Peter Di Prinzio and Rita Di Prinzio (together, the Landlord) to Freightliner Australia Coal Haulage Pty Ltd.

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18	Whyalla Lease between One Steel Manufacturing Pty Ltd (as landlord) and GWA.

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Schedule 14 – Approved Lenders

Part A – Banks

Agricultural Bank of China

Aozora Bank Ltd

Bank of America

Bank of China

Bank of Communications

Bank of Montreal

Bank of Nova Scotia Limited

Bank of Taiwan

BBVA

Bendigo and Adelaide Bank

BNP Paribas

The Bank of Tokyo-Mitsubishi UFJ, Ltd.

Business Development Bank of Canada

Caisse Centrale Desjardins

Cathay United

Chang Hwa Commercial Bank

China Construction Bank

China Development Bank

CIBC

Citigroup

Commerzbank

Credit Agricole CIB

Crédit Industriel et Commercial

CTBC Bank

DBS Bank Ltd

Deutsche Bank AG

Development Bank of Japan

DZ Bank

Erste Bank

Export Finance & Insurance Corporation

Hua Nan Commercial Bank

HSBC

HSH Nordbank

Industrial & Commercial Bank of China Ltd

ING Bank

Intesa

Investec Australia Limited

JP Morgan Chase & Co

Korea Development Bank

Korea Exchange Bank

Land Bank of Taiwan

Lloyds TSB

Mega International Commercial Bank

Mitsubishi UFJ Trust and Banking

Mizuho

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National Australia Bank Limited

National Bank of Canada

Natixis

Nord / LB

Norinchukin

Overseas-Chinese Banking Corporation Limited (OCBC)

Rabobank

Royal Bank of Scotland

Royal Bank of Canada

Shinhan

Shinsei

SMTB

State Bank India

Sumitomo Mitsui Banking Corporation

Societe Generale

Standard Chartered Bank

Taiwan Cooperative Bank

The Norinchukin Bank

Toronto-Dominion Bank

United Overseas Bank Limited

Westpac Banking Corporation

Woori Bank

Part B – Funds, insurance companies and investment banks

Accident Compensation Corporation NZ

AMP

Australian Super

Blackrock

CARE Super Pty Limited

Challenger Limited

Hastings Funds Management

Industry Funds Management

HESTA Super Fund

Metrics Credit Partners Pty Ltd

REST Retail Employees Superannuation Trust

UniSuper Limited

Victorian Fund Management Corporation

Zurich Insurance

UBS

Westbourne Capital

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Signing page

DATED: 28 November 2016

BORROWER AND EACH OTHER ORIGINAL OBLIGOR


EXECUTED by GWI ACQUISITIONS	)
PTY LTD in accordance with section	)
127(1) of the Corporations Act 2001	)
(Cth) by authority of its directors:	)
	)
Signature of Gregory Pauline	)	Signature of Michael Morris
Signature of Gregory Pauline	)	Signature of Michael Morris
Signature of director	)	Signature of director /company secretary*
	)	*delete whichever is not applicable
GREGORY PAULINE	)
GREGORY PAULINE	)
Name of director (block letters)	)	MICHAEL MORRIS Name of director /company secretary*
	)
	)
	)	(block letters)
	)	*delete whichever is not applicable

EXECUTED by GENESEE &	)
WYOMING AUSTRALIA PTY LTD in	)
accordance with section 127(1) of the	)
Corporations Act 2001 (Cth) by	)
authority of its directors:	)
	)	Signature of Michael Morris
Signature of Gregory Pauline	)	Signature of Michael Morris
Signature of Gregory Pauline	)	Signature of ~~director/~~ company secretary *
Signature of director	)	*delete whichever is not applicable
	)
GREGORY PAULINE	)
GREGORY PAULINE	)	MICHAEL MORRIS
Name of director (block letters)		MICHAEL MORRIS
		Name of ~~director/~~ company secretary *
		(block letters)
		*delete whichever is not applicable

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EXECUTED by GWI HOLDINGS NO.2	)
PTY LTD in accordance with section	)
127(1) of the Corporations Act 2001	)
(Cth) by authority of its directors:	)
	)
	)
Signature of Gregory Pauline	)	Signature of Michael Morris
Signature of director	)	Signature of director /company secretary*
	)	*delete whichever is not applicable
	)
GREGORY PAULINE	)
Name of director (block letters)	)	MICHAEL MORRIS
		Name of director /company secretary*
		(block letters)
		*delete whichever is not applicable

EXECUTED by GWI HOLDINGS PTY	)
LTD in accordance with section 127(1)	)
of the Corporations Act 2001 (Cth) by	)
authority of its directors:	)
	)
	)
Signature of Gregory Pauline	)	Signature of Michael Morris
Signature of director	)	Signature of director /company secretary*
	)	*delete whichever is not applicable
	)
GREGORY PAULINE	)
Name of director (block letters)	)	MICHAEL MORRIS
		Name of director /company secretary*
		(block letters)
		*delete whichever is not applicable

EXECUTED by GENESEE &	)
WYOMING AUSTRALIA EASTERN	)
PTY LTD in accordance with section	)
127(1) of the Corporations Act 2001	)
(Cth) by authority of its directors:	)
	)
	)
Signature of Gregory Pauline	)	Signature of Michael Morris
Signature of director	)	Signature of director /company secretary*
	)	*delete whichever is not applicable
	)
GREGORY PAULINE	)
Name of director (block letters)		MICHAEL MORRIS
		Name of director /company secretary*
		(block letters)
		*delete whichever is not applicable

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EXECUTED by GWA (NORTH) PTY	)
LTD in accordance with section 127(1)	)
of the Corporations Act 2001 (Cth) by	)
authority of its directors:	)
	)
	)
Signature of Gregory Pauline	)	Signature of Michael Morris
Signature of director	)	Signature of director /company secretary*
	)	*delete whichever is not applicable
	)
GREGORY PAULINE	)
Name of director (block letters)	)	MICHAEL MORRIS
		Name of director /company secretary*
		(block letters)
		*delete whichever is not applicable

EXECUTED by SA RAIL PTY LIMITED	)
in accordance with section 127(1) of	)
the Corporations Act 2001 (Cth) by	)
authority of its directors:	)
	)
	)
Signature of Gregory Pauline	)	Signature of Michael Morris
Signature of director	)	Signature of director /company secretary*
	)	*delete whichever is not applicable
	)
GREGORY PAULINE	)
Name of director (block letters)	)	MICHAEL MORRIS
		Name of director /company secretary*
		(block letters)
		*delete whichever is not applicable

EXECUTED by VIPER LINE PTY LTD	)
in accordance with section 127(1) of	)
the Corporations Act 2001 (Cth) by	)
authority of its directors:	)
	)
	)
Signature of Gregory Pauline	)	Signature of Michael Morris
Signature of director	)	Signature of director /company secretary*
	)	*delete whichever is not applicable
	)
GREGORY PAULINE	)
Name of director (block letters)	)	MICHAEL MORRIS
		Name of director /company secretary*
		(block letters)
		*delete whichever is not applicable

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EXECUTED by FREIGHTLINER	)
AUSTRALIA PTY LTD in accordance	)
with section 127(1) of the Corporations	)
Act 2001 (Cth) by authority of its	)
directors:	)
	)
	)
Signature of Gregory Pauline	)	Signature of Nalin Weerakoon
Signature of director	)	Signature of director /company secretary*
	)	*delete whichever is not applicable
GREGORY PAULINE	)
	)
Name of director (block letters)		NALIN WEERAKOON
		Name of director /company secretary*
		(block letters)
		*delete whichever is not applicable
EXECUTED by FLA COAL SERVICES	)
PTY LTD in accordance with section	)
127(1) of the Corporations Act 2001	)
(Cth) by authority of its directors:	)
	)
	)
Signature of Gregory Pauline	)	Signature of Nalin Weerakoon
Signature of director	)	Signature of director /company secretary*
	)	*delete whichever is not applicable
	)
Gregory Pauline	)
Name of director (block letters)	)	NALIN WEERAKOON
		Name of director /company secretary*
		(block letters)
		*delete whichever is not applicable

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EXECUTED by FREIGHTLINER	)
AUSTRALIA COAL HAULAGE PTY	)
LTD in accordance with section 127(1)	)
of the Corporations Act 2001 (Cth) by	)
authority of its directors:	)
	)
	)
Signature of Gregory Pauline	)	Signature of Nalin Weerakoon
Signature of director	)	Signature of director /company secretary* *
	)	*delete whichever is not applicable
GREGORY PAULINE	)
	)
Name of director (block letters)		NALIN WEERAKOON
		Name of director /company secretary*
		(block letters)
		*delete whichever is not applicable
EXECUTED by ARG SELL DOWN	)
NO1 PTY. LIMITED in accordance with	)
section 127(1) of the Corporations Act	)
2001 (Cth) by authority of its directors:	)
	)
	)
Signature of Gregory Pauline	)	Signature of Michael Morris
Signature of director	)	Signature of director /company secretary*
	)	*delete whichever is not applicable
	)
GREGORY PAULINE	)
Name of director (block letters)	)	MICHAEL MORRIS
		Name of director /company secretary*
		(block letters)
		*delete whichever is not applicable

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EXECUTED by GWA NORTHERN	)
PTY LTD in accordance with section	)
127(1) of the Corporations Act 2001	)
(Cth) by authority of its directors:	)
	)
	)
Signature of Gregory Pauline	)	Signature of Michael Morris
Signature of director	)	Signature of director /company secretary*
	)	*delete whichever is not applicable
	)
GREGORY PAULINE	)
Name of director (block letters)	)	MICHAEL MORRIS
		Name of director /company secretary*
		(block letters)
		*delete whichever is not applicable

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AGENT

SIGNED by Linda Juster	)
	)
as attorney for NATIONAL	)
AUSTRALIA BANK LIMITED under	)
power of attorney dated 1 March 2007	)
	)
	)
in the presence of:	)	Signature of Linda Juster
	)	By executing this document the
	)	attorney states that the attorney has
Signature of Jack Handford	)	received no notice of revocation of the
Signature of witness	)	power of attorney
	)
JACK HANDFORD
Name of witness (block letters)

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ORIGINAL LENDERS AND MLAs


SIGNED by Michelle Sichlau	)
	)
	)
as attorney for AUSTRALIA AND NEW	)
ZEALAND BANKING GROUP	)
LIMITED under power of attorney dated	)
	)
17 April 2015	)
	)
in the presence of:	)	Signature of Michelle Sichlau
	)	By executing this document the
	)	attorney states that the attorney has
Signature of Elizabeth Athanassios	)	received no notice of revocation of the
Signature of witness	)	power of attorney
	)
ELIZABETH ATHANASSIOS
Name of witness (block letters)

SIGNED by Michael Senyard	)
	)
	)
as attorney for and on behalf of BANK	)
OF AMERICA, N.A. AUSTRALIAN	)
BRANCH in the presence of:	)
	)
	)
Signature of William Lo	)
Signature of witness	)	Signature of Michael Senyard
	)	By executing this document the
	)	attorney states that the attorney has
WILLIAM LO	)	received no notice of revocation of the
Name of witness (block letters)	)	power of attorney
	)

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SIGNED by	)
	)
Chris Ruffa, Managing Director	)
	)
and	)
	)
Monica Mikhail, Legal Counsel	)
	)
as authorised signatories for BNP	)
PARIBAS in the presence of:	)
	)
	)	Signature of Chris Ruffa
Signature of Elizabeth Athanassios	)	By executing this document the
Signature of witness	)	authorised signatory states that the
	)	attorney has received no notice of
	)	revocation of the power of attorney
ELIZABETH ATHANASSIOS	)
Name of witness (block letters)	)
	)
	)
	)	Signature of Monica Mikhail
	)	By executing this document the
Signature of Alexander Sorgese	)	authorised signatory states that the
Signature of witness	)	attorney has received no notice of
	)	revocation of the power of attorney
ALEXANDER SORGESE
Name of witness (block letters)

SIGNED by Roderick Hill, Managing	)
Director	)
	)
and	)
	)
Lachlan Tracey, Director	)
	)
as authorised signatories for and on	)
behalf of CITIBANK, N.A. SYDNEY	)
BRANCH in the presence of:	)
	)
	)	Signature of Roderick Hill
Signature of Chad Bochan	)	By executing this document the
Signature of witness	)	authorised signatory states that the
	)	attorney has received no notice of
CHAD BOCHAN	)	revocation of the power of attorney
	)
Name of witness (block letters)	)
	)
	)
	)	Signature of Lachlan Tracey
Signature of Chad Bochan	)	By executing this document the
Signature of witness	)	authorised signatory states that the
	)	attorney has received no notice of
CHAD BOCHAN	)	revocation of the power of attorney
Name of witness (block letters)

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SIGNED for and on behalf of
COMMONWEALTH BANK OF
AUSTRALIA by its attorney under
power of attorney in the presence of:

		Signature of Alaster Long
		By executing this document the attorney
Signature of Chad Bochan		states that the attorney has received no
Signature of witness		notice of revocation of the power of
		attorney

CHAD BOCHAN
Name of witness (block letters)		ALASTER LONG
		Name of attorney (print)

		EXECUTIVE DIRECTOR
		Title of attorney (print)

		24 June 2013
		Date of power of attorney

SIGNED for and on behalf of	)
JPMORGAN CHASE BANK, N.A.	)
in the presence of:	)
	)	Signature of Carolyn Hely
	)	By executing this document the
	)	authorised signatory states that the
Signature of Elizabeth Athanassios	)	attorney has received no notice of
Signature of witness	)	revocation of the power of attorney
	)
	)
ELIZABETH ATHANASSIOS	)	Name: CAROLYN HELY
Name of witness (block letters)	)

	)
	)	Title: EXECUTIVE DIRECTOR
	)

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SIGNED by Richard Wheeler	)
	)
	)
as attorney for NATIONAL	)
AUSTRALIA BANK LIMITED under	)
power of attorney dated 1 March 2007	)
	)
	)
in the presence of:	)
	)	Signature of Richard Wheeler
	)	By executing this document the
Signature of Elizabeth Athanassios	)	attorney states that the attorney has
Signature of witness	)	received no notice of revocation of the
	)	power of attorney
ELIZABETH ATHANASSIOS	)
Name of witness (block letters)

SIGNED by Tarek El-Rakshy, Head of	)
Energy & Infrastructure Project Finance	)
Australia	)
	)
as attorney for SUMITOMO MITSUI	)
BANKING CORPORATION under	)
power of attorney dated 18 April 2016	)
	)
	)
in the presence of:	)	Signature of Tarek El-Rakshy
	)	By executing this document the
	)	attorney states that the attorney has
Signature of Brett Ruitenberg	)	received no notice of revocation of the
Signature of witness	)	power of attorney
	)

BRETT RUITENBERG
Name of witness (block letters)

SIGNED by Drew Riethmvlier	)
	)
	)
as attorney for THE BANK OF	)
TOKYO-MITSUBISHI UFJ, LTD. under	)
power of attorney dated 2 November	)
2016	)
	)
	)
in the presence of:	)	Signature of Drew Riethmvlier
	)	By executing this document the
	)	attorney states that the attorney has
Signature of Hoa Huynh	)	received no notice of revocation of the
Signature of witness	)	power of attorney
	)

Hoa Huynh
Name of witness (block letters)

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Exhibit 99.1

Genesee & Wyoming Australia Completes Acquisition of GRail, Issues 49% Equity Stake

DARIEN, Conn. – (Business Wire) – Genesee & Wyoming Inc. (G&W) (NYSE:GWR) announced today that Genesee & Wyoming Australia (GWA) has completed the acquisition of Glencore Rail (GRail) for A$1.14 billion and has concurrently issued a 49% equity stake in GWA to funds and clients managed by Macquarie Infrastructure and Real Assets (MIRA).

In conjunction with the acquisition of the GRail business, which includes nine train sets (30 locomotives and 894 wagons), a long-term, take-or-pay contract with Glencore Coal Pty Limited (GC) has been entered into, subject to existing agreements and certain limitations, to exclusively haul all coal produced at GC’s existing mines in the Hunter Valley to the Port of Newcastle.

The acquisition strengthens GWA’s nationwide footprint in Australia, adding a significant presence in the Hunter Valley coal supply chain and complementing GWA’s existing intermodal, agricultural and mining business in South Australia and the Northern Territory.

About G&W

Genesee & Wyoming owns or leases 121 freight railroads worldwide that are organized in 10 operating regions with approximately 7,200 employees and more than 2,800 customers.

•

G&W’s eight North American regions serve 41 U.S. states and four Canadian provinces and include 113 short line and regional freight railroads with more than 13,000 track-miles.

•

G&W’s Australia Region provides rail freight services in New South Wales, including in the Hunter Valley, and in the Northern Territory and South Australia, including operating the 1,400-mile Tarcoola-to-Darwin rail line.

•

G&W’s U.K./Europe Region is led by Freightliner, the U.K.’s largest rail maritime intermodal operator and second-largest rail freight company. Operations also include heavy-haul in Poland and Germany and cross-border intermodal services connecting Northern European seaports with key industrial regions throughout the continent.

G&W subsidiaries provide rail service at more than 40 major ports in North America, Australia and Europe and perform contract coal loading and railcar switching for industrial customers.

This press release contains “forward-looking statements” relating to the proposed transaction by G&W and GWA. Such forward-looking statements are based on current expectations and involve inherent risks and uncertainties. For a discussion of such risks and uncertainties, which could cause actual results to differ from those contained in the forward-looking statements, see “Risk Factors” in G&W’s Annual Report on Form 10-K for the most recently ended fiscal year. G&W does not undertake, and expressly

disclaims, any duty to publicly update any forward-looking statement, whether as a result of new information, future events, or otherwise, except as required by law.

SOURCE Genesee & Wyoming Inc.

CONTACT: Michael Williams, G&W Corporate Communications

1-203-202-8900

Web site: www.gwrr.com