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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):
July 1, 1996
PACIFIC GAS TRANSMISSION COMPANY
(Exact name of registrant as specified in its charter)
CALIFORNIA 0-25842 94-1512922
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
2100 SW River Parkway, Portland, Oregon 97201
(Address of principal executive offices)
Registrant's telephone number, including area code - (503) 833-4000
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Item 2. Acquisition or Disposition of Assets
On July 1, 1996, the PGT Queensland Unit Trust (the "PGT Trust"), a
unit trust created under the laws of Australia, purchased all of the assets
comprising the Queensland State Gas Pipeline (the "Pipeline") from the
Government of the State of Queensland, Australia. The purchase was effected
pursuant to the State Gas Pipeline Sale Agreement dated as of April 29, 1996,
between the Secretary for Mines of the State of Queensland and PGT Australia Pty
Limited ("PGT Australia"), as Trustee of the PGT Trust, a copy of which is
attached to this report as an Exhibit.
PGT Australia is an Australian corporation which is a wholly-owned
subsidiary of the registrant. The record owners of all of the issued and
outstanding units of the PGT Trust, who as such own all of the beneficial
interest in the PGT Trust, are Pacific Gas Transmission International, Inc.
("PGT International"), a California corporation which is a wholly-owned
subsidiary of the registrant, and PGT Queensland Pty Limited ("PGT Queensland"),
an Australian corporation which is also a wholly-owned subsidiary of the
registrant.
The Pipeline is an approximately 376 mile 12 inch pipeline constructed
in 1990 which extends from Wallumbilla to Gladstone and Rockhampton in
Queensland, Australia. The pipeline was operated by the Government of the state
of Queensland, Australia to provide natural gas transportation service to
customers in the vicinity of the Pipeline. The PGT Trust intends to continue
such operations.
The purchase price, including related stamp duty taxes, for the
Pipeline was approximately US$133 million. Additional incurred and projected
acquisition costs, including financing costs and working capital are
approximately US$6 million. The purchase price for the assets comprising the
Pipeline was established through negotiations with the Government of Queensland
following a bidding process in which the registrant was the winning bidder.
The acquisition of the Pipeline by the PGT Trust was financed through
a combination of equity contributions from the registrant and bank loans. PGT
Australia, in its capacity as trustee of the PGT Trust, entered into a
Non-Recourse Syndicated Advance Facility Agreement dated June 27, 1996 (the
"Non-Recourse Facility Agreement"), with, among others, BA Asia Limited, as
Facility Agent, and Bank of America Trust and Savings Association, as Lender,
providing for loans to the PGT Trust in connection with the acquisition and
operation of the Pipeline denominated in both United States and Australian
Dollars totaling approximately US$60 million. Repayment of amounts outstanding
under the Non-Recourse Facility Agreement is secured by a first mortgage and
first security interest in substantially all of the assets owned by the PGT
Trust (with certain limited exceptions), but is otherwise non-recourse to PGT
Australia, PGT International, PGT Queensland and the registrant.
PGT Australia, in its capacity as trustee of the PGT Trust, also
entered into a Recourse Syndicated Facility Agreement dated June 27, 1996 (the
"Recourse Facility Agreement"), with, among others, BA Asia Limited, as Facility
Agent, and Bank of America Trust and Savings Association, as Lender, providing
for loans to the PGT Trust in connection with the acquisition and operation of
the Pipeline denominated in United States Dollars in the amount of US$40.0
million. In connection with this financing, Pacific Gas and Electric Company
("PG&E"), the parent of the registrant, has entered into a Capital Infusion
Agreement with the registrant (the "Capital Infusion Agreement"),
1
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under which PG&E has agreed to make capital contributions to the registrant in
an aggregate amount not exceeding US$40.0 million; the registrant has assigned
its rights under the Capital Infusion Agreement to the Facility Agent as agent
for and on behalf of the Lenders under the Recourse Facility Agreement. In
addition, the registrant has issued a guarantee in favor of the Facility Agent
with respect to all interest, fees, expenses and other obligations under this
Recourse Facility Agreement, other than principal, in an aggregate amount not to
exceed US$2.0 million. The registrant has further guaranteed all payment
obligations under any interest rate Hedging Agreement entered into under the
Resource Facility Agreement in an amount not to exceed US$9.0 million. PGT
International has guaranteed the repayment in full by the PGT Trust of all
amounts payable under the Recourse Facility Agreement.
Payment of the purchase price to the Government of the State of
Queensland was made by the PGT Trust from the proceeds of borrowing under the
Recourse and Non-Recourse Facility Agreements in the approximate amount of US$91
million with the balance being funded by the registrant.
Item 7. Financial Statements, PRO FORMA Financial Information and Exhibits
(a) FINANCIAL STATEMENTS OF BUSINESSES ACQUIRED. It is impracticable for
the registrant to provide any of the financial statements required by this item
at this time. Such financial statements will be filed as soon as practicable,
and in any event no later than September 16, 1996.
(b) PRO FORMA FINANCIAL INFORMATION. It is impracticable for the
registrant to provide any of the PRO FORMA financial information required by
this item at this time. Such PRO FORMA financial information will be filed as
soon as practicable, and in any event no later than September 16, 1996.
(c) EXHIBITS. The following exhibits are filed as part of this Form 8-K:
Exhibit No. Description
----------- -----------
2 State Gas Pipeline Sale Agreement dated
as of April 29, 1996, between the
Secretary for Mines of the State of
Queensland, Australia, and PGT Australia
Pty Limited, as Trustee of the PGT
Queensland Unit Trust
2
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SIGNATURES
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 thereunto duly authorized.
PACIFIC GAS TRANSMISSION COMPANY
--------------------------------
(Registrant)
By:/S/STANLEY C. KARCZEWSKI
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Stanley C. Karczewski
Vice President of Finance
and Controller and Chief
Financial Officer
Date: July 15, 1996
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STATE GAS PIPELINE SALE AGREEMENT
THIS AGREEMENT made the 29th day of April 1996
BETWEEN THE SECRETARY FOR MINES the corporate entity established by the
Petroleum Act 1923, Section 54A and preserved and continued in
existence as a corporation sole constituted by the Minister under
Section 11 of the Petroleum Act 1923 ("VENDOR")
AND PGT AUSTRALIA PTY. LIMITED (ACN 072 948 451) of Level 3, Waterfront
Place, 1 Eagle Street, Brisbane, Queensland ("PURCHASER") in its
capacity as trustee of the PGT Queensland Unit Trust ("TRUST")
constituted pursuant to a deed of trust dated 29 April 1996 made
between Ezekiel Solomon as Settlor and PGT Australia Pty. Limited as
Trustee ("TRUST DEED")
RECITALS
A The Vendor is the owner of the Pipeline.
B The Vendor has agreed to sell to the Purchaser and the Purchaser has agreed
to purchase from the Vendor the Pipeline Assets for the consideration and
upon the terms and conditions contained in this document.
OPERATIVE PROVISIONS
1 DEFINITIONS & INTERPRETAIONS
1.1 DEFINITIONS
In this document, including the Recitals and Schedules, the following terms
have the following meanings unless the context otherwise requires:
"ACCESS PRINCIPLES" means the tariff setting principles, indicative tariff
schedule and indicative access conditions contained in Schedule 4 as may be
varied by agreement in writing between the Vendor and Purchaser prior to
Completion.
"ACCRUED EMPLOYEE ENTITLEMENTS" means:
(a) in relation to each SGPU Employee, the accrued entitlement of the
employee to wages, holiday pay and long service leave, arising
out of the employee's employment with SGPU in relation to the
Pipeline; and
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(b) in relation to each Bridge Gas Employee:
(i) the accrued entitlement of the employee to wages and holiday pay
arising out of the employee's employment with Bridge Gas; and
(ii) the amount accrued by Bridge Gas on account of long service
leave for the employee arising out of the employee's
employment with Bridge Gas.
"ASSETS" means:
(a) the Pipeline Assets;
(b) the Specified Contracts;
(c) subject to Clause 7.4, the Transportation Contracts; and
(d) the Information;
"AUTHORISATION" includes:
(a) any consent, authorisation, registration, filing, recording,
agreement, notarisation, certificate, permission, licence, approval,
permit, authority or exemption; or
(b) in relation to any act, matter or thing which may be proscribed or
restricted in whole or in part by law or otherwise if a Government
Body intervenes or acts in any way within a specified period after
lodgment, registration or other notification of such act, matter or
thing, the expiration of such period without such intervention or
action.
"BHPMC INLET STATION AGREEMENT" means the agreement dated 16 February 1996
entered into between the Vendor and BHP Mitsui Coal Pty Ltd (ACN 009 713
875), in respect of the inlet station constructed or to be constructed at
or near Moura and connected or to be connected to the Pipeline.
"BRIDGE GAS" means Bridge Gas Queensland Pty Ltd (ACN 010 711 761).
"BRIDGE GAS EMPLOYEES" means the employees of Bridge Gas referred to in
Schedule 8.
"BRISBANE OFFICE" means the corporate offices of the Vendor used in
connection with the administration and operation of the Pipeline located at
Level 4, 61 Mary Street, Brisbane as indicated on the Plan contained in
Schedule 2.
"BRISBANE OFFICE EQUIPMENT" means the office furniture and equipment which
is the property of the Vendor and which at Completion is in the Brisbane
Office and used in connection with the day to day administration and
operation of the Pipeline.
"BUSINESS DAY" means a day, other than a Saturday, Sunday or public
holiday, upon which banks (as that term is defined in the Banking Act 1959)
are open for business in Brisbane.
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"CLAIM" means, in relation to any person, any claim, action, proceeding,
demand, damage, loss, cost, expense or liability made or brought by or
against or incurred or suffered by or to that person, of whatever nature or
description and however arising and whether present, unascertained,
immediate, future, actual or contingent.
"CMPS AGREEMENT" has the meaning given to that term in Clause 13.5.
"COMPLETION" means the completion of the sale and purchase of the
Pipeline Assets in accordance with the terms of this document.
"COMPLETION DATE" means 28 June 1996 or such other date as the Vendor
and the Purchaser may agree in writing.
"CONSTRUCTION CONTRACTS" means the contracts, if any, relating to the
construction of the Pipeline other than the CMPS Agreement.
"DATA ROOM" means the premises situated at Level 2, 56-62 Mary Street,
Brisbane, in which the Purchaser has had access to information and
materials relating to the Assets.
"DEPOSIT" means the sum of $5 million.
"ENCUMBRANCE" means:
(a) any mortgage, pledge, charge, lien, assignment, security interest,
title retention, preferential right or trust arrangement and any other
security agreement or other arrangement of any kind given, arising or
created (whether fixed, floating or otherwise); and
(b) any possessory lien in the ordinary course of business whether arising
by operation of law or by contract.
"EVENT OF FORCE MAJEURE" means an act of God, industrial disturbance, act
of public enemy, war, blockade, public riot, lightning, earthquake, fire,
storm, flood and any other event whether of the kind enumerated above or
otherwise which is not within the control of the Vendor.
"EXCLUDED ASSETS" means:
(a) the Trade Debts; and
(b) the Valve Claim;.
"EXISTING CUSTOMERS" means the parties to the respective Transportation
Contracts other than the Vendor.
"FIRB APPROVAL" means:
(a) the Purchaser being given advice of a decision by the Commonwealth
Treasurer ("TREASURER") that the Commonwealth Government has no
objection to the proposed acquisition of the Pipeline Assets
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by the Purchaser subject to the Purchaser complying with the conditions, if
any, which the Treasurer considers necessary and which the Purchaser,
acting reasonably, considers acceptable; or
(b) notice of the proposed acquisition of the Pipeline Assets having been
given to the Treasurer pursuant to the Foreign Acquisitions and
Takeovers Act 1975 ("ACT"), the Treasurer is, by reason of lapse of
time, not empowered to make an order under Part II of the Act in
relation to the proposed acquisition of the Pipeline Assets by the
Purchaser.
"GCQ CONTRACT" means the Gas Transportation Agreement dated 4 March 1992
made between the Vendor and Gas Corporation of Queensland Limited
(ACN 009 760 883).
"GCQ DEED" means the deed dated 10 February 1993 between the Vendor and Gas
Corporation of Queensland Limited (ACN 009 760 883) in respect of the
Parkhurst (Rockhampton) Station.
"GLADSTONE MAINTENANCE BASE LEASE" means the lease dated 1 October 1995
between the Vendor and Betty Constance Burns in respect of the Pipeline
maintenance base at Gladstone being the land described as Lots 2 and 3 on
Plan Cat G14.179.
"GOVERNMENT BODY" means any government, governmental or semi-government
entity, any body politic, any ministry, inspectorate, official, public or
statutory person or other statutory or administrative entity, domestic or
foreign, federal, state or local.
"GOVERNMENT OF THE STATE" means the Government of the State of Queensland
and includes any agency, instrumentality, ministry, official, public or
statutory person, or other statutory or administrative entity of the State.
"HONEYWELL CONTRACT" means the Support Services Agreement dated 8 April
1992 made between the Vendor and Honeywell Limited (ACN 000 646 882).
"ICI CONTRACT" means the Gas Transportation Agreement dated 11 November
1988 made between the Vendor and ICI Australia Operations Pty Ltd (ACN 004
117 828).
"INFORMATION" means:
(a) the information contained in the Information Memorandum;
(b) the information, documents and records in the Data Room; and
(c) any other information, documents or records made available or
disclosed to the Purchaser in respect of the Assets.
"INFORMATION MEMORANDUM" means the Information Memorandum prepared by or on
behalf of the Vendor and made available to prospective purchasers of the
Pipeline.
"LAND ACT" means the Land Act 1994.
"LAND MINISTER" means the Minister responsible for the administration of
the Land Act.
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"LANDOWNER NOTICE" means a notice in the form contained in Schedule 7 with
such additions, amendments or modifications as the Vendor and the Purchaser
may agree.
"LANDOWNERS" means persons being the registered owner, registered lessee,
trustee or occupier of any land which comprises part of the Pipeline Route
or in whom any such land is vested or who have control of any such land.
"LIABILITIES" means any and all debts, obligations and liabilities
(including Claims) of whatever nature or description and however arising
and whether present, unascertained, immediate, future, actual or
contingent.
"LICENCE" means a pipeline licence under the Petroleum Act in respect of
the Pipeline on the terms and conditions contained in Schedule 5 as may be
varied by agreement in writing between the Vendor and Purchaser prior to
Completion.
"LINEPACK" means the quantity of gas owned by the Vendor in the Pipeline
for the purpose of maintaining an adequate pressure in the Pipeline and
does not include gas in the Pipeline which is owned by parties other than
the Vendor.
"LOT 23" means the land described as Lot 23 on RP 603515 County of
Livingstone, Parish of Murchison and contained in Certificate of Title
Volume C113 Folio 70.
"MINISTER" means the Minister responsible for the administration of the
Petroleum Act exercising the powers conferred on the Minister by the
Petroleum Act and not as the person constituting the corporation sole which
is a party to this document as the Vendor.
"NATIVE TITLE LEGISLATION" means the Native Title Act 1993 (Commonwealth)
and the Native Title (Queensland) Act 1993.
"NATIVE TITLE REPORT" means the Reports on Tenure History Assessment of the
Existence/Extinguishment of Native Title in relation to the Pipeline Route
prepared by the Department of Lands and dated 10 November 1995 and 24
January 1996 and including a memorandum dated 10 November 1995 from the
Manager, Native Title Unit, Aboriginal and Torres Strait Islander Land
Interest Program ("ATSILIP") to the Program Director, ATSILIP and a letter
dated 25 January 1996 from the Manager of ATSILIP to the Under Treasurer.
"PETROLEUM ACT" means the Petroleum Act 1923.
"PGT OPERATOR" means PGT Queensland Pty. Limited (ACN 072 947 516) or such
other company incorporated in Queensland as may be nominated by the
Purchaser to be the operator of the Pipeline.
"PIPELINE" means the natural gas pipeline transmission system known as the
State Gas Pipeline described in Schedule 1.
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"PIPELINE ASSETS" means:
(a) the Pipeline;
(b) the Pipeline Tenure;
(c) the Linepack;
(d) the Spares and Emergency Equipment;
(e) the Brisbane Office Equipment;
(f) the Gladstone Maintenance Base Lease (unless it has been included in
the Excluded Assets pursuant to clause 6.4);
(g) the Records; and
(h) the Vehicles.
but excluding the Excluded Assets.
"PIPELINE ROUTE" means the land on, over or under which the Pipeline is
constructed and operated as described in Annexure A.
"PIPELINE TENURE" means the approvals, easements, leases, licences, rights
of way or other rights, titles or interests held by the Vendor in respect
of the Pipeline Route as at Completion but excluding any approvals,
easements, leases, licences, rights of way or other rights, titles or
interests not capable of assignment.
"PURCHASE PRICE" means the purchase price for the Pipeline Assets specified
in Clause 2.2.
"QAL CONTRACT" means the Gas Transportation Agreement dated 22 July 1989
made between the Vendor and Queensland Alumina Limited (ACN 009 725 044),
the exercise of certain rights and the performance of certain obligations
under which are co-ordinated under the Co-ordination Agreement dated the
22nd day of July 1989 made between the Vendor, Queensland Alumina Limited,
Santos Petroleum Operations Pty Ltd (formerly AGL Petroleum Operations Pty
Ltd) (ACN 010 829 017) and Oil Company of Australia Limited (formerly Oil
Company of Australia NL) (ACN 001 646 331).
"QNET CONTRACT" means the Data Communications Network Agreement - Contract
C - 2068 made between the Vendor and Q-Net Communications (Australia) Pty
Ltd (formerly called Q-Net Pty Ltd) (ACN 010 761 092).
"QMAG CONTRACT" means the Gas Transportation Agreement dated 22 August 1990
made between the Vendor, Queensland Metals Corporation Limited (formerly
Queensland Metals Corporation NL) (ACN 010 441 666), Pancontinental
Resources (Kunwarara) Pty Ltd (ACN 009 643 216), QMC Refmag Pty Ltd
(formerly Radex Australia Pty Ltd) (ACN 003 858 099) and Queensland
Magnesia (Operations) Pty Ltd (ACN 010 823 588).
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"RECORDS" means the Vendor's technical data and other records, documents
and data relating directly to the operation, maintenance and administration
of the Assets excluding:
(a) the Vendor's books of account and financial records pertaining to such
books of account;
(b) correspondence and memoranda relating to the relationship between the
Vendor and the Purchaser and between the Vendor and any other
prospective purchaser of the Pipeline Assets; and
(c) any other confidential information which in the reasonable opinion of
the Vendor is not germane to the Assets after Completion.
"ROCKHAMPTON EASEMENTS" means Easements F, G, H, J and K on RP 836730 and
Easements L and M on RP 836731 in favour of the Vendor in or about Werribee
Street, Rockhampton.
"SGPU" means the State Gas Pipeline Unit within the Department of Minerals
and Energy.
"SGPU EMPLOYEES" means the employees of the SGPU who are employed in
relation to the management and administration of the Pipeline.
"SPARES AND EMERGENCY EQUIPMENT" means the spares and emergency equipment
and operating tools and equipment held by the Vendor at Completion for use
in relation to the Pipeline.
"SPECIFIED CONTRACTS" means:
(a) the Honeywell Contract;
(b) the QNet Contract; and
(c) the CMPS Agreement.
"STATE" means the State of Queensland.
"TRADE DEBTS" means each and every amount due or owing to the Vendor at
Completion in connection with the Pipeline including, without limitation,
any amount due or owing or payable to the Vendor in respect of any quantity
of Linepack delivered to or for the account of any person on or before
Completion.
"TRANSFERRING EMPLOYEE" has the meaning given to that term in Clause 13.8.
"TRANSPORTATION CONTRACTS" means the QAL Contract, the ICI Contract, the
QMAG Contract and the GCQ Contract.
"VALVE CLAIM" has the meaning given to that term in Clause 13.2 and
includes any amount payable to or recovered by the Vendor in respect of the
Valve Claim.
"VEHICLES" means the vehicles described in Schedule 3.
"WARRANTIES" means the representations and warranties on the part of the
Vendor set out in Clause 10.1.
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1.2 INTERPRETATION
In this document, except to the extent that the context otherwise requires:
(a) a reference to a statute or other law includes regulations and other
instruments under it and consolidations, amendments, re-enactments or
replacements of any of them;
(b) the singular includes the plural and vice versa;
(c) a reference to a person includes corporations, associations and
statutory authorities;
(d) a reference to any instrument (including this document) includes any
variation or replacement thereof;
(e) a reference to Clauses, Annexures or Schedules shall, unless otherwise
provided, be to the clauses, annexures or schedules of or to this
document;
(f) all monetary amounts are expressed in Australian currency;
(g) a reference to any authority, association or body whether statutory or
otherwise shall, in the event of any such authority, association or
body ceasing to exist or being re-constituted, re-named or replaced or
the powers or functions thereof being transferred to any other
authority, association or body, be deemed to refer respectively to the
authority, association or body established or constituted in lieu
thereof or as nearly as may be succeeding to the powers or functions
thereof; and
(h) a reference to time is to Australian Eastern Standard Time.
1.3 HEADINGS
Headings are inserted for convenience only and shall be ignored in the
construction of this document.
2 SALE OF PIPELINE
2.1 SALE AND PURCHASE OF PIPELINE ASSETS
The Vendor agrees to sell and the Purchaser agrees to purchase free from
all Encumbrances other than those provided for in this document, the
Pipeline Assets on the terms and conditions of this document for the
Purchase Price.
2.2 PURCHASE PRICE
The purchase price for the Pipeline Assets exclusive of the Linepack is
$162,000,000.00 and such purchase price shall be allocated between such
Pipeline Assets in the manner set out in Schedule 10.
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The Purchaser will pay to the Vendor the balance of the Purchase Price on
the Completion Date in accordance with Clause 5.2.
The Vendor and the Purchaser acknowledge and agree that:
(a) the quantity of Linepack is usually in the vicinity of 160,173
gigajoules;
(b) the Vendor will use its reasonable endeavours consistent with good
operating practice to ensure that Linepack is maintained at or about
the quantity referred to in paragraph (a); and
(c) the Purchaser will pay to the Vendor on Completion the amount of $2.81
per gigajoule for the quantity of Linepack in the Pipeline on
Completion as determined by a gas reconciliation made by the Vendor as
at Completion. If such gas reconciliation has not been completed on
or before Completion then the quantity of Linepack in the Pipeline on
Completion will be deemed to be the quantity referred to in paragraph
(a) and the Purchaser will pay to the Vendor on Completion the amount
of $2.81 per gigajoule for such quantity. Upon the gas reconciliation
being completed and the actual quantity of Linepack being determined
any adjustment owing by either party to the other shall be immediately
paid to the party in whose favour the adjustment is to be made.
3 DEPOSIT
3.1 PAYMENT OF DEPOSIT
The Deposit shall be paid by the Purchaser to the Vendor immediately upon
execution of this document by the Purchaser.
3.2 INVESTMENT OF DEPOSIT
The Vendor will as soon as practicable after the date of this document
invest the Deposit in an interest bearing deposit with Queensland Treasury
Corporation for a term as near as reasonably practicable to but not
exceeding the period from the date of this document to the Completion Date
and thereafter at call. The Purchaser shall promptly advise the Vendor of
its tax file number for this purpose.
3.3 INTEREST ON TERMINATION
If this document is terminated by the Purchaser in accordance with its
terms due to a default or failure to perform by the Vendor or the
non-satisfaction of any condition precedent to Completion then the Deposit,
together with all interest which has been earned from the investment of the
Deposit, shall be immediately refunded to the Purchaser.
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3.4 INTEREST ON COMPLETION
If the sale and purchase of the Pipeline Assets is completed in accordance
with the terms of this document then the Vendor will be absolutely entitled
to the Deposit and all interest which has been earned from the investment
of the Deposit in accordance with this Clause 3 shall be shared between the
Vendor and the Purchaser in equal shares.
3.5 FORFEITURE OF THE DEPOSIT
If the Purchaser fails to comply with any material term of this document
the Vendor may:-
(a) terminate the agreement evidenced by this document; and/or
(b) forfeit the Deposit and all interest which has been earned from the
investment of the Deposit; and/or
(c) sue the Purchaser for breach; and/or
(d) without further notice to the Purchaser resell the Pipeline Assets by
public auction or private treaty upon such terms as the Vendor thinks
proper with the power to vary or rescind any contract for sale, and
the deficiency, if any, arising on such resale and all incidental
expenses shall be recoverable by the Vendor from the Purchaser as
liquidated damages.
4 CONDITIONS
4.1 RELEVANT CONDITIONS
Completion of the agreement set out in this document is conditional upon:
(a) the Minister approving the Access Principles under Section 112 of the
Petroleum Act on or before the Completion Date;
(b) the Minister, with the approval of the Governor-in-Council, granting
the Licence to the Purchaser on or before the Completion Date and the
Minister consenting in writing to PGT Operator being the operator of
the Pipeline;
(c) the Vendor obtaining pursuant to clause 17.2 of the GCQ Contract prior
written consent in writing to the assignment of that contract from the
other party to that contract on or before the Completion Date;
(d) the Vendor obtaining pursuant to clause 17.2 of the QMAG Contract
prior written consent in writing to the assignment of that contract
from the other parties to that contract on or before the Completion
Date;
(e) the Purchaser obtaining the FIRB Approval, if required, by the date
which is 30 days from the date of this document ("FIRB APPROVAL
DATE");
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(f) the Minister consenting to the transfer of the Pipeline Tenure to the
Purchaser under Section 74 of the Petroleum Act; and
(g) the Land Minister consenting to the transfer of any part of the
Pipeline Tenure in respect of the transfer of which such consent is
required.
4.2 PURCHASER TO MAKE APPLICATIONS
Immediately on signing this document the Purchaser will:
(a) make application to the Minister for the grant of the Licence and
consent to PGT Operator being the operator of the Pipeline;
(b) give the Minister the Access Principles for approval; and
(c) give such notices, furnish such information and take such action as
may be required to obtain the FIRB Approval.
4.3 PURCHASER TO TAKE ALL REASONABLE ACTION
The Purchaser will:
(a) comply with the provisions of the Petroleum Act in relation to the
application for the Licence and in seeking the approval of the
Minister for the Access Principles;
(b) do all things reasonably necessary to obtain the approval of the
Minister to the Access Principles, the grant of the Licence and the
consent of the Minister for the transfer of the Pipeline Tenure;
(c) do all things reasonably necessary to obtain the FIRB Approval;
(d) immediately upon obtaining the FIRB Approval notify the Vendor and
provide to the Vendor true copies of all documentation evidencing the
FIRB Approval;
(e) do all things reasonably required of the Purchaser to obtain the
consent referred to in Clause 4.1(g); and
(f) keep the Vendor fully informed as to the progress of each of the
matters referred to in this Clause 4.3.
4.4 VENDOR TO OBTAIN CONSENT
The Vendor will:
(a) do all things reasonably necessary to obtain the consents referred to
in Clauses 4.1(c) and 4.1(d); and
(b) make application for and do all things reasonably necessary to obtain
the consents referred to in Clauses 4.1(f) and (g).
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4.5 TERMINATION
If the conditions contained in Clauses 4.1(a), (b), (c), (d), (f) and (g)
are not satisfied on or before the Completion Date then unless otherwise
agreed in writing between the parties the agreement set out in this
document will terminate on the Completion Date. If the condition contained
in Clause 4.1(e) is not satisfied on or before the FIRB Approval Date then
unless otherwise agreed in writing between the parties the agreement set
out in this document will terminate on the FIRB Approval Date.
5 COMPLETION
5.1 TIME AND PLACE OF COMPLETION
Completion will take place on the Completion Date at the offices of the
Vendor at 61 Mary Street, Brisbane or at such other place as the Vendor and
the Purchaser may agree in writing.
5.2 DELIVERY BY THE PURCHASER
On Completion the Purchaser shall:
(a) pay by way of unendorsed bank cheque to the Vendor or by a telegraphic
transfer of immediately available funds to a bank account in Brisbane
nominated by the Vendor the Purchase Price (less the amount of the
Deposit) and all other moneys then payable by the Purchaser to the
Vendor under this document;
(b) take possession of the Pipeline Assets at their respective locations
at Completion;
(c) accept from the Vendor the assignments of:
(i) subject to Clause 7.4, each of the Transportation Contracts;
(ii) the Pipeline Tenure;
(iii) the Gladstone Maintenance Base Lease (unless it has been
included in the Excluded Assets pursuant to Clause 6.4);
(iv) the GCQ Deed; and
(v) the BHPMC Inlet Station Agreement;
(d) deliver the documents executed by the Purchaser in accordance with
Clauses 6.4, 6.5, 6.6, 6.8 and 7.3; and
(e) do, execute and deliver all such other acts and documents that this
document requires the Purchaser to do, execute or deliver at
Completion.
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5.3 DELIVERY OF THE VENDOR
On Completion the Vendor shall deliver to the Purchaser:
(a) the Pipeline Assets at their respective locations at Completion;
(b) the assignments of:
(i) subject to Clause 7.4, each of the Transportation Contracts;
(ii) the Pipeline Tenure;
(iii) the Gladstone Maintenance Base Lease (unless it has been
included in the Excluded Assets pursuant to Clause 6.4);
(iv) the GCQ Deed; and
(v) the BHPMC Inlet Station Agreement;
(c) the documents required to effect the transfer of the registration of
the Vehicles to the Purchaser; and
(d) do, execute and deliver all such other acts and documents that this
document requires the Vendor to do, execute or deliver at Completion.
5.4 PREPARATION AND EXECUTION OF DOCUMENTS
(a) All documents required to be executed by the Vendor in accordance with
this document shall be prepared by the Purchaser (at the expense of
the Purchaser) and delivered to the Vendor a reasonable time prior to
Completion to allow execution by the Vendor prior to Completion.
(b) Where a statutory form is available, the Purchaser shall prepare the
documents in accordance with the statutory form but otherwise such
documents shall only contain such provisions as are necessary to
effect the assignment or to otherwise give effect to this document and
without limiting the generality of the foregoing, such documents shall
contain no representations, warranties or indemnities (whether from
the Vendor or otherwise) and shall provide that the Purchaser shall,
as between the parties, be liable for and duly pay all stamp duty
(including any fine or penalty).
5.5 PASSING OF TITLE
Subject to Clause 6.9, unencumbered legal and beneficial title to the
Pipeline Assets passes to the Purchaser on Completion.
5.6 PASSING OF RISK
Risk in the Pipeline Assets passes to the Purchaser on Completion.
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5.7 EVENT OF FORCE MAJEURE
If the Vendor, by reason of any Event of Force Majeure, is wholly or
partially unable to perform its obligations under the agreement evidenced
by this document, it will give to the Purchaser prompt written notice of
the Event of Force Majeure with reasonably full particulars thereof,
whereupon the obligations of the Vendor to the extent that they are
affected by the Event of Force Majeure shall be suspended for so long as
the Event of Force Majeure renders the Vendor unable to so perform its
obligations. The Vendor shall take all reasonable steps to avoid or
overcome the effect of the Event of Force Majeure.
If an Event of Force Majeure delays the Vendor's performance under this
document for a period in excess of three months then the Purchaser may
terminate the agreement evidenced by this document by notice in writing to
the Vendor.
5.8 CONSTRUCTION CONTRACTS
The Vendor assigns to the Purchaser with effect on and from Completion the
benefit of such of the Construction Contracts as the Vendor is able to
assign to the Purchaser without the consent of the other party or parties
to the Construction Contracts. The Purchaser acknowledges and agrees that:
(a) neither the Vendor nor any person on its behalf has made or makes any
representation or warranty in relation to the rights of the Vendor
under any Construction Contract or the ability of the Vendor to assign
any Construction Contract to the Purchaser; and
(b) notwithstanding Clause 17.7 or any other provision of this document,
the Vendor shall not be required to do anything to effect, perfect or
complete the assignment of the Construction Contracts or any of them
to the Purchaser or to enforce or assist the Purchaser in the
enforcement of any right, claim or obligation under any Construction
Contract.
6 PIPELINE TENURE
6.1 ACKNOWLEDGEMENTS
The Purchaser acknowledges and agrees that:
(a) As at the date of this document and at Completion not all of the
Pipeline Route is or will be the subject of a registered easement in
favour of the Vendor and the Purchaser shall not have and shall not
make any Claim in connection with such easements not existing or not
being registered at Completion;
(b) Not all of the approvals, easements, leases, licences, rights of way
or other rights, titles or interests held by the Vendor in respect of
the Pipeline Route are capable of assignment and any such approvals,
easements, leases, licences, rights of way or other rights, titles or
interests held by the Vendor in respect of the Pipeline Route are not
included in the Pipeline Tenure or the Pipeline Assets and the
Purchaser shall not have and shall not make any Claim in relation
thereto;
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(c) The Purchaser agrees to purchase the Pipeline Assets on the basis of
the Licence and the rights conferred by the Petroleum Act on the
holder of a pipeline licence and will obtain all other approvals and
do all other things as may be required of the holder of a pipeline
licence in respect of the Pipeline Route (whether pursuant to the
Petroleum Act or otherwise);
(d) Except as provided in this Clause 6.1 and Clause 6.9 the Purchaser
shall be responsible for all Claims and Liabilities and all
compensation payable in respect of the Pipeline Route and the Pipeline
Tenure on and from Completion;
(e) Up to and including Completion the Vendor shall be entitled to
continue to deal with all tenure issues relating to the Pipeline as
owner of the Pipeline without reference to the Purchaser and without
limiting the generality of the foregoing may deal with Lot 23 and the
Rockhampton Easements in accordance with Clause 6.7;
(f) If any part of the Pipeline Route is resumed (whether before or after
Completion) the Purchaser shall be required to complete the purchase
of the Pipeline Assets provided that where the resumption occurs after
the date of this document the Purchaser shall, subject to Completion,
be entitled to any compensation payable with respect to the
resumption;
(g) The particulars set out in respect of the headings "Land Holder Name"
and "Property Description" in respect of each relevant property in
Annexure A are based on title information obtained from the Department
of Lands in the period from 12 October to 16 October 1995 and that
such particulars may have changed since such dates; and
(h) The Vendor makes no warranty or representation with respect to the
accuracy or completeness of the information set out in respect of the
headings "Owner Address", "Phone Number", and "Contact Name/Address
(if different)" in respect of each relevant property in Annexure A.
6.2 AGREEMENT WITH LANDOWNERS
The Purchaser agrees to be bound by and after Completion shall duly carry
out and perform all of the obligations of the Vendor under all agreements
entered into between the Vendor and Landowners including, without limiting
the generality of the foregoing, the letter of amplification and all
agreements with Landowners disclosed in the Right of Way Access Manuals.
If the Purchaser assigns its rights in respect of the Pipeline Route or
under this document it shall obtain a covenant in favour of the Vendor in
terms similar to this Clause 6.2.
6.3 NOTICE TO LANDOWNERS
As soon as practicable after Completion the Purchaser shall send to all
Landowners the Landowner Notice advising of completion of the sale of the
Pipeline to the Purchaser.
6.4 GLADSTONE MAINTENANCE BASE
(a) The Vendor agrees to use its reasonable endeavours to procure the
assignment of the Gladstone Maintenance Base Lease from the Vendor to
the Purchaser with effect from Completion.
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(b) The Purchaser agrees to sign all documents reasonably required by the
lessor in accordance with the Gladstone Maintenance Base Lease
including a deed pursuant to which the Purchaser covenants with the
lessor under the Gladstone Maintenance Base Lease to observe and
perform all of the terms and conditions of the Gladstone Maintenance
Base Lease.
(c) If the landlord has not consented to the assignment of the Gladstone
Maintenance Base Lease by Completion then the Gladstone Maintenance
Base Lease shall be included in the Excluded Assets and shall be
excluded from the Pipeline Assets and the Purchaser shall not have and
shall not make any Claim with respect thereto.
(d) If the Gladstone Maintenance Base Lease is assigned to the Purchaser
with effect from Completion then after Completion the Purchaser shall
duly carry out and perform all of the obligations of the Vendor under
the Gladstone Maintenance Base Lease.
6.5 GCQ DEED
(a) The Vendor will assign its rights with respect to the GCQ Deed to the
Purchaser with effect from Completion.
(b) After Completion the Purchaser shall duly carry out and perform all of
the obligations of the Vendor under the GCQ Deed.
(c) The Purchaser shall execute and deliver on or before Completion a deed
in accordance with Clause 3.1 of the GCQ Deed pursuant to which the
Purchaser covenants directly with the other party or parties to the
GCQ Deed to observe and perform all of the terms and conditions of the
GCQ Deed. The Vendor shall be responsible for the preparation of such
deed which will be in such form as the Vendor and the other party or
parties to the GCQ Deed may reasonably require and shall arrange for
the execution of such deed by such other party or parties.
6.6 BHPMC INLET STATION
(a) The Vendor will assign its interest with respect to the BHPMC Inlet
Station Agreement to the Purchaser with effect from Completion.
(b) After Completion the Purchaser shall duly carry out and perform all of
the obligations of the Vendor under the BHPMC Inlet Station Agreement.
(c) The Purchaser shall execute and deliver on or before Completion a deed
pursuant to which the Purchaser covenants directly with the other
party or parties to the BHPMC Inlet Station Agreement to observe and
perform all of the terms and conditions of the BHPMC Inlet Station
Agreement. The Vendor shall be responsible for the preparation of
such deed which will be in such form as the Vendor and the other party
or parties to the BHPMC Inlet Station Agreement may reasonably require
and shall arrange for the execution of such deed by such other party
or parties.
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6.7 LOT 23 AND ROCKHAMPTON EASEMENTS
(a) The Purchaser acknowledges that the Vendor has been negotiating with
the Rockhampton City Council for the sale by the Vendor to the
Rockhampton City Council of Lot 23 and the surrender of the
Rockhampton Easements to allow Lot 23 and the land which is the
subject of the Rockhampton Easements to be dedicated as public road in
connection with the development of the Rockhampton Industrial Park by
the Rockhampton City Council.
(b) The Purchaser agrees to be bound by and shall not object to or make
any Claim with respect to the sale of Lot 23 or the surrender of the
Rockhampton Easements provided that there are rights in respect of the
maintenance and operation of the Pipeline as contemplated in a letter
dated 29 September 1994 from the SGPU to the Rockhampton City Council
and a letter dated 16 February 1995 from the Rockhampton City Council
to the SGPU.
6.8 BRISBANE OFFICE
The Vendor hereby grants to the Purchaser a free licence to use the
Brisbane Office for the period of 1 month commencing on Completion on the
following terms and conditions:
(a) the Purchaser will not use the Brisbane Office for any purpose other
than the administration of the Pipeline;
(b) the Purchaser will not make any alterations in or to the Brisbane
Office without the consent of the Vendor;
(c) the Purchaser will observe and conform to the reasonable rules and
regulations and other requirements from time to time specified by the
Vendor in connection with the use of the Brisbane Office;
(d) the Purchaser will at all times endeavour to ensure that the Brisbane
Office is kept clean and tidy and free from harmful, flammable or
unsightly matter;
(e) the Purchaser will not do or permit any act, matter or thing which
might in any way endanger or damage the Brisbane Office or the
building of which it forms part;
(f) the Purchaser will comply with the provisions of all laws in relation
to its use of the Brisbane Office;
(g) the Purchaser's occupation and use of the Brisbane Office shall be at
the sole risk of the Purchaser and the Purchaser acknowledges that the
Vendor does not expressly or impliedly represent, warrant or promise
that the Brisbane Office is or will remain fit, suitable or adequate
for the purposes of the Purchaser and the Vendor shall not be liable
to the Purchaser for any Claims suffered or incurred by the Purchaser
in relation to its use or occupation of the Brisbane Office except to
the extent caused or contributed to by the negligence or wilful act or
omission of the Vendor;
(h) all representations, warranties and promises implied by law as to the
fitness, suitability and adequacy of the Brisbane Office or the
building within which it is situated are expressly negatived;
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(i) the Purchaser will indemnify the Vendor against all Claims and
Liabilities arising out of or in connection with the Purchaser's
occupation and use of the Brisbane Office caused or contributed to by:
(i) the negligence or wilful act or omission of the Purchaser;
(ii) the default of the Purchaser under the provisions of this Clause;
(iii) the overflow, leakage or escape of water, fire, gas,
electricity or other harmful agent in or from the Brisbane
Office; or
(iv) the use of the Brisbane Office and the building of which it forms
part by the Purchaser,
except to the extent caused or contributed to by the negligence or
wilful act or omission of the Vendor;
(j) not later than 1 month after Completion the Purchaser will remove from
the Brisbane Office any property owned, hired or leased by the
Purchaser or the PGT Operator provided that such removal can be
effected without causing any substantial or structural damage to the
Brisbane Office or the building of which it forms part. The Purchaser
will make good any damage caused to the Brisbane Office or such
building by such removal. If the Purchaser does not remove such
property then the Vendor may do so and make good any damage caused by
such removal. The Purchaser will pay to the Vendor upon demand the
costs to the Vendor of such removal and making good;
(k) the Purchaser acknowledges and agrees that the rights granted under
this Clause 6.8 shall rest in contract only and shall not create or
confer upon the Purchaser any tenancy or any estate or interest
whatsoever in or over the Brisbane Office and that the rights of the
Purchaser shall be those of a licensee only; and
(l) the Purchaser will not assign the benefit of the licence granted by
this Clause 6.8.
6.9 NATIVE TITLE
The Purchaser acknowledges that the Native Title Report discloses the
potential for the continued existence of native title in respect of an area
on the Pipeline Route referred to as Area 140. The Vendor accepts and will
discharge its liability under the Native Title Legislation for payment of
compensation under that legislation to parties who hold, or previously
held, native title which has been extinguished, impaired or otherwise
adversely affected by the acts of the Government of the State or the Vendor
in respect of the Pipeline done up to Completion. The Purchaser shall be
solely responsible for the payment of compensation and all other liability
to parties holding native title which is impaired or otherwise affected by
acts done after Completion. The Purchaser shall keep the Government of the
State and the Vendor indemnified against such liability.
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7 TRANSPORTATION CONTRACTS
7.1 ASSIGNMENT OF TRANSPORTATION CONTRACTS
Subject to obtaining the consents referred to in Clauses 4.1(c) and 4.1(d)
and subject to Clause 7.4 the Vendor will assign the Transportation
Contracts to the Purchaser with effect from Completion.
7.2 PURCHASER TO PERFORM TRANSPORTATION CONTRACTS
After Completion the Purchaser shall duly carry out and perform all of the
obligations of the Vendor under the Transportation Contracts which are
assigned to the Purchaser. Without limiting the generality of the
foregoing, the Purchaser will transport through the Pipeline and deliver in
accordance with the relevant Transportation Contracts the gas in the
Pipeline on Completion which is owned by parties other than the Vendor.
7.3 DEED OF COVENANT
The Purchaser shall execute and deliver on or before Completion a deed of
covenant in respect of each Transportation Contract which is to be assigned
to the Purchaser pursuant to which the Purchaser covenants directly with
the other party or parties to each Transportation Contract to observe and
perform all of the terms and conditions of that Transportation Contract.
Such deed of covenant will be in the form contained in Schedule 6 with such
additions, amendments or modifications as the other party or parties to any
Transportation Contract may reasonably require.
7.4 TERMINATION OF TRANSPORTATION CONTRACTS
The Purchaser declares that it is the Purchaser's intention to:
(a) enter into new contracts with the Existing Customers for the
transportation of gas through the Pipeline to take effect on and from
Completion in substitution for the Transportation Contracts; and
(b) procure the Existing Customers to terminate the Transportation
Contracts with effect from Completion and release the Vendor from all
its obligations and liabilities under the Transportation Contracts
which relate to the period on and after Completion by duly executing
in respect of each Transportation Contract a deed substantially in the
form set out in Schedule 9 ("TERMINATION DEED").
The Vendor and the Purchaser agree as follows:
(c) the Vendor will execute each Termination Deed which has been duly
executed by each of the other parties to a Transportation Contract;
(d) notwithstanding any other provision of this document, the Vendor will
not be obliged to assign and the Purchaser will not be obliged to
accept the assignment of any Transportation Contract in respect of
which the Vendor and the Existing Customer which is the other party to
that Transportation Contract have duly executed a Termination Deed;
and
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(e) the condition in Clause 4.1(c) will be deemed waived on the
Termination Deed for the GCQ Contract being executed by the other
party to the GCQ Contract and delivered to the Vendor and the
condition in Clause 4.1(d) will be deemed waived on the Termination
Deed for the QMAG Contract being executed by the other parties to the
QMAG Contract and delivered to the Vendor.
8 SPECIFIED CONTRACTS
8.1 ASSIGNMENT OF SPECIFIED CONTRACTS
The Vendor shall at the request of the Purchaser ensure that each of the
Specified Contracts is with effect from Completion assigned or novated to
the Purchaser and the Vendor shall be responsible for the preparation and
execution of the assignment or novation documentation provided that if any
other party to any Specified Contract objects to such assignment or
novation, the provisions of Clause 8.2 apply.
8.2 NON-ASSIGNMENT OF ANY SPECIFIED CONTRACT
Where there is an objection or refusal to consent to an assignment or
novation as mentioned in Clause 8.1 then with effect from Completion and
until expiry or termination of the relevant Specified Contract by the
Vendor or the other party to the Specified Contract:
(a) the Purchaser shall duly perform the Specified Contract on behalf of
the Vendor at the cost of the Purchaser and at no expense to the
Vendor;
(b) the Vendor shall enforce the Specified Contract against the other
party or parties to the Specified Contract in such manner as the
Purchaser may reasonably direct from time to time, at the cost of the
Purchaser and at no expense to the Vendor; and
(c) the Vendor shall not agree to any amendment of the Specified Contract
or waiver of the Vendor's rights thereunder without the prior written
approval of the Purchaser.
9 PROFITS AND ADJUSTMENTS
9.1 PROFITS AND EXPENSES BEFORE COMPLETION
The Vendor shall remain entitled to receive any receipts or profits in
respect of the Assets insofar as those receipts and profits are in respect
of or related to the period prior to Completion. The Vendor shall remain
liable for and shall pay for any goods and materials ordered by the Vendor
in relation to the Pipeline prior to Completion notwithstanding that such
goods or materials may be delivered after Completion.
9.2 PROFITS AFTER COMPLETION
The Purchaser shall be entitled to receive all receipts and profits in
respect of the Assets insofar as those receipts and profits are in respect
of or related to the period after Completion.
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9.3 TRADE DEBTS
The Trade Debts remain the property of the Vendor following Completion.
The Purchaser shall promptly account to the Vendor for any amount received
by the Purchaser in respect of the Trade Debts following Completion.
9.4 ADJUSTMENT OF PERIODIC OUTGOINGS
All adjustments not otherwise provided for in this document in respect of
all periodic outgoings relating to the Pipeline Assets including
adjustments in respect of all services such as, but not limited to,
electricity are to be made as at Completion.
9.5 ADJUSTMENT OF OUTGOINGS AND EXPENSES
At Completion the Purchaser shall pay to the Vendor a sum equal to the
total amount of all outgoings and expenses paid by the Vendor in connection
with the Pipeline Assets in respect of any period after Completion, as set
out in a list provided by the Vendor to the Purchaser at least 2 Business
Days prior to Completion. Such list may be audited, if so required, by the
Purchaser at the Purchaser's expense.
10 WARRANTIES BY VENDOR
10.1 WARRANTIES
The Vendor represents and warrants to and for the benefit of the Purchaser
that:
(a) it is the corporate entity established by the Petroleum Act, Section
54A and preserved and continued in existence under Section 11 of the
Petroleum Act as a corporation sole constituted by the Minister under
the name and style "The Secretary for Mines";
(b) it has full power, authority and legal right to execute and deliver
and perform its obligations under this document;
(c) all Authorisations required from any Government Body for the execution
and delivery by it of this document have been obtained and are in full
force and effect and, to the best of its knowledge and belief, no act,
matter or thing has occurred or is threatened in consequence of which
any such Authorisation might be varied, abrogated or withdrawn, with
the giving of notice or lapse of time or the implementation of any
prescribed procedure or otherwise;
(d) this document has been duly authorised, executed and delivered by it;
(e) the execution, delivery and performance by it of this document does
not and will not violate or be in conflict with, in any respect any
provision of any law or regulation or any Authorisation of the State;
and
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(f) subject to Clause 6.9 and Clause 12.3, it has good legal and
beneficial title to and right to sell to the Purchaser the Pipeline
Assets in accordance with the provisions of this document.
10.2 WARRANTIES FOR THE BENEFIT OF THE PURCHASER
The Warranties are given for the benefit of the Purchaser only and may not
be relied on by any other person.
10.3 EFFECT OF A BREACH OF THE WARRANTIES
A breach of any of the Warranties does not entitle the Purchaser to
terminate the agreement evidenced by this document.
10.4 ACKNOWLEDGMENT IN RELATION TO THE WARRANTIES
The Purchaser acknowledges and agrees that:
(a) neither the Vendor nor any person on its behalf has made or makes any
representation or warranty to or for the benefit of the Purchaser
other than the Warranties;
(b) the Vendor will not be liable to the Purchaser in any way in respect
of the accuracy, completeness or efficacy of the Information or the
Records;
(c) in entering into this document and proceeding to Completion, the
Purchaser does not rely on any representation, warranty or statement
made or given by or on behalf of the Vendor, other than the
Warranties;
(d) it has had the opportunity to make and has made due diligence
enquiries in relation to all matters material to the Assets which are
not covered by the Warranties and satisfied itself in relation to the
matters arising from those investigations;
(e) the Warranties are to be read and construed subject to any matter,
circumstances or transaction:
(i) provided for or described in this document;
(ii) which is discoverable by search of public records; or
(iii) discovered by the Purchaser or which ought to have been
discovered by the Purchaser during the course of its due
diligence enquiries in relation to the Assets conducted
prior to the signing of this document;
(f) it agrees to purchase the Pipeline Assets on an "as is where is basis"
subject to all defects, both patent and latent, and, notwithstanding
any particular acknowledgements in this document, with full knowledge
of the Information;
(g) it has entered into the agreement evidenced by this document relying
entirely upon its own independent appraisal and assessment of the
Assets;
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(h) subject to any law to the contrary and except as provided in the
Warranties, all terms whether express, implied, written, oral,
collateral, statutory or otherwise, are excluded and the Vendor
disclaims all liability in relation to these to the maximum extent
permitted by law; and
(i) to the fullest extent possible the Purchaser waives any possible cause
of action or rights it may have under or in respect of Part V of the
Trade Practices Act 1974 or Part 3 of the Fair Trading Act 1989 or any
other legislation which is to any extent similar to such Part V or
Part 3 or any portion of such legislation touching or concerning
anything the subject of or incidental to this document and releases
and indemnifies to the fullest extent possible the Vendor and all
persons or entities associated with the Vendor from and against (as
the case may be) any claim or liability (if any) arising out of or
incidental to any such cause of action or right or any like cause of
action or right of any other person or entity whatsoever.
11 WARRANTIES BY PURCHASER
11.1 WARRANTIES
The Purchaser represents and warrants to and for the benefit of the Vendor
that:
(a) it is a limited liability body corporate duly incorporated in its
place of incorporation and validly existing and in good standing under
the laws of that place;
(b) it has full power, authority and legal right in its personal capacity
and as trustee of the Trust and pursuant to the Trust Deed to execute
and, subject to the satisfaction of the conditions in Clause 4.1,
deliver and perform its obligations under this document;
(c) all Authorisations required from any Government Body for the execution
and performance by it of this document, other than any Authorisation
referred to in Clause 4.1, have been obtained and are in full force
and effect and, to the best of its knowledge and belief, no act,
matter or thing has occurred or is threatened in consequence of which
any such Authorisation might be varied, abrogated or withdrawn, with
the giving of notice or lapse of time or the implementation of any
prescribed procedure or otherwise;
(d) this document has been duly authorised, executed and delivered by it;
and
(e) the execution, delivery and, subject to the satisfaction of the
conditions in Clause 4.1, performance by it of this document does not
and will not violate or be in conflict with, in any respect any
provision of:
(i) any law or regulation or any Authorisation of the place of its
incorporation or constitution;
(ii) the memorandum and articles of association or its other
constituent documents; or
(iii) the Trust Deed.
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12 VENDOR'S OBLIGATIONS
12.1 OPERATION OF PIPELINE PENDING COMPLETION
Until Completion, the Vendor shall operate and maintain the Pipeline in the
ordinary course consistent with past practice including maintaining a
sufficient quantity of gas in the Pipeline to ensure effective Pipeline
operation.
12.2 SPARES AND EMERGENCY EQUIPMENT
Until Completion, the Vendor will maintain levels of Spares and Emergency
Equipment in accordance with good operating practice. Subject to the
Vendor complying with its obligations under this Clause, the Purchaser will
not have and will not make any Claim against the Vendor if the quantity or
description of the Spares and Emergency Equipment on Completion is less
than or different from the Spares and Emergency Equipment on the date of
this document.
12.3 Q FLEET VEHICLES
The Purchaser acknowledges that the vehicles described in Part B of
Schedule 3 are owned by the State through Q Fleet and the Vendor agrees to
cause the State through Q Fleet to sell and transfer to the Purchaser such
vehicles for the consideration provided for in this document.
13 PURCHASER'S OBLIGATIONS
13.1 RECORDS
The Purchaser will keep and make available to the Vendor all accounting
records and other documents relating to the Assets which shall be in the
possession or control of the Purchaser after Completion (whether on
computer or otherwise held by or on behalf of the Purchaser) for such
purposes as the Vendor may reasonably require.
13.2 VALVES
The Purchaser acknowledges and agrees that:
(a) Cooper Flow Control Australia Pty Ltd or a related body corporate (as
defined in the Corporations Law) of that corporation ("Supplier")
supplied certain ball valves ("Valves") which were installed in the
Pipeline;
(b) certain of the Valves have failed or may fail or otherwise require
repair or replacement after the date of this document;
(c) the Vendor shall be entitled to make such claim and to take such
action as it considers appropriate against the Supplier in respect of
the Valves ("Valve Claim");
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(d) the Valve Claim and any amount payable to or recovered by the Vendor
in respect of the Valve Claim shall remain the property of the Vendor;
and
(e) the Purchaser does not have and will not make any Claim against the
Vendor or the Supplier or any officer, director, shareholder or
employee of either of them in relation to the Valves including,
without limiting the generality of the foregoing, any Claim resulting
from or arising out of:
(i) any misrepresentation with respect to the Valves;
(ii) any inadequacy or failure in performance of the Valves; or
(iii) any defects in the design, workmanship or material of the
Valves.
13.3 CASTLE HOPE DAM
The Purchaser acknowledges and agrees that:
(a) in the future there may be a need to construct a new dam on the
Calliope River currently being referred to as the Castle Hope Dam
("DAM");
(b) if and when constructed and depending on the location and final high
water level of the Dam some parts of the Pipeline Route relating to
the Wallumbilla to Gladstone section of the Pipeline could be
inundated to varying depths;
(c) the effects of such inundation could include, but not be limited to, a
restriction on the access to the Pipeline, changes in the
characteristics of the cathodic protection system and the floating of
one or more sections of the Pipeline; and
(d) the Purchaser will not object to the construction of or any resumption
for the purpose of and will not have and will not make any Claim
against the Vendor arising out of or in connection with the
construction and operation of the Dam except as provided for hereafter
in this Clause.
The Vendor and the Purchaser agree that if the construction of or any
resumption for the purpose of the Dam entitles the Purchaser to
compensation under any applicable law then the following provisions of this
Clause shall apply:
(e) if the construction of the Dam requires that work be carried out in
relation to part of the Pipeline for the reason that it will be
inundated by the water stored in the Dam then the Vendor and the
Purchaser will agree upon the work to be carried out in accordance
with good engineering practice and failing such agreement such work
will be as determined by a suitably qualified and independent engineer
appointed by the Purchaser and approved by the Vendor, such approval
not to be unreasonably withheld and the Vendor will pay to the
Purchaser the costs properly and reasonably incurred by the Purchaser
in carrying out the work provided that the Purchaser:
(i) takes all reasonable steps to minimise such costs including,
without limitation, procuring competitive prices for the work;
<PAGE>
-26-
(ii) provides to the Vendor all documentation and information
required by the Vendor in relation to the work and the cost of
the work; and
(iii) permits the Vendor to carry out an audit in respect of the
cost of the work.
(f) if the construction of the Dam makes it necessary for the Purchaser to
acquire rights in respect of land for the purposes of relocating part
of the Pipeline then the Vendor will pay to the Purchaser the amounts
paid to the relevant landowners to acquire such rights provided that
the rights to be acquired and such amounts are first approved by the
Vendor such approval not to be unreasonably withheld;
(g) the Vendor will not be obliged to pay the amounts provided for in
paragraphs (e) and (f) except in exchange for a full release and
discharge to the Vendor and any person or Government Body liable for
the payment of compensation to the Purchaser arising out of the
construction of or any resumption for the purpose of the Dam and the
Purchaser will accept such amount in full and final satisfaction of
any and all claims which it may have arising out of or in connection
with the construction of or any resumption for the purpose of the Dam.
13.4 NAME OF PIPELINE
After Completion the Purchaser:
(a) will not, whether in relation to the operation, maintenance and
administration of the Pipeline or otherwise, use the names "State Gas
Pipeline" or "SGP" or any other name, logo or mark previously used by
the Vendor in relation to the Pipeline; and
(b) will use in relation to the operation, maintenance and administration
of the Pipeline such name as the Purchaser shall notify to the Vendor
and the Vendor shall approve prior to Completion, such approval not to
be unreasonably withheld.
13.5 PROJECT DOCUMENTS
The Purchaser acknowledges and agrees that:
(a) the plans, designs, calculations, reports, time schedules, budgets,
costs, estimates, construction records, accounting records, purchasing
records, files and completed and uncompleted documents prepared and
obtained by CMPS&F (Qld) Pty Limited (formerly Crooks Michell Peacock
Stewart (Qld) Pty Limited) ACN 010 037 877 in performing the work
relating to the investigation, planning and engineering design and
procurement, construction, management and commissioning of the
Wallumbilla to Gladstone section of the Pipeline, (collectively called
the "Project Documents") are the property of the Vendor and CMPS
equally under and by virtue of an agreement made between the Vendor
and CMPS ("CMPS Agreement");
(b) under clause 11 of the CMPS Agreement the Project Documents may not be
used for any purpose other than the construction operation and
maintenance of the Wallumbilla to Gladstone section of the Pipeline;
<PAGE>
-27-
(c) the Vendor's rights in respect of that part of the Records consisting
of the Project Documents are limited in the manner provided for in the
CMPS Agreement and the Purchaser shall not have and shall not make any
Claim against the Vendor in relation thereto; and
(d) after Completion the Purchaser shall duly carry out and perform and
observe all of the obligations of the Vendor under the CMPS Agreement
in relation to the Project Documents.
13.6 BRIDGE GAS EMPLOYEES
Not later than 31 May 1996, the Purchaser will or will cause PGT Operator
to offer employment to each of the Bridge Gas Employees:
(a) for a period of not less than six months commencing on Completion or
at such earlier date as the Bridge Gas Employee, the Purchaser and the
Vendor agree;
(b) at such total remuneration as the Purchaser or PGT Operator and each
Bridge Gas Employee agree being not less than the total remuneration
payable to that employee at the time that such offer of employment is
made; and
(c) otherwise on such terms and conditions as the Purchaser or PGT
Operator and the Bridge Gas Employee agree;
and such offer will remain open for acceptance by the Bridge Gas
Employee until the date which is fourteen days after the date such
offer is made or the date which is two days prior to the Completion
Date whichever is the earlier.
13.7 ACCRUED EMPLOYEE ENTITLEMENTS - SGPU EMPLOYEES
The Vendor will be solely responsible for the Accrued Employee Entitlements
of the SGPU Employees as at the date of termination of their employment
with the SGPU and for any redundancy or termination payments in respect of
the termination of the employment of the SGPU Employees with the SGPU.
13.8 ACCRUED EMPLOYEE ENTITLEMENTS - BRIDGE GAS EMPLOYEES
In respect of each Bridge Gas Employee who accepts an offer of employment
by the Purchaser or PGT Operator pursuant to an offer made under
Clause 13.6 and who, not later than Completion, becomes an employee of the
Purchaser or PGT Operator ("TRANSFERRING EMPLOYEE"):
(a) the Vendor will give to the Purchaser on Completion, details in
writing of the Accrued Employee Entitlements as at Completion of each
Transferring Employee as advised to the Vendor by Bridge Gas, but for
informational purposes, the Accrued Employee Entitlements of the
Bridge Gas Employees, as at 1 January 1996, are advised by Bridge Gas
to the Vendor to be as set out in Schedule 8;
(b) the Vendor and the Purchaser acknowledge and agree that in respect of
each Transferring Employee:
<PAGE>
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(i) Bridge Gas has the responsibility to pay to that Transferring
Employee the amount payable to that Transferring Employee in
respect of wages as at the date on which such employee's
employment with Bridge Gas ceases;
(ii) Bridge Gas has the responsibility to pay to that Transferring
Employee the amount payable to that Transferring Employee in
respect of holiday pay as at the date on which such employee's
employment with Bridge Gas ceases if directed by the Transferring
Employee to do so; and
(iii) the Vendor shall pay or allow to the Purchaser the amount
received by the Vendor from Bridge Gas in respect of:
(A) the amount payable to that Transferring Employee in respect
of holiday pay as at the date on which such employee's
employment with Bridge Gas ceases if that Transferring
Employee has not given the direction contemplated in
sub-paragraph (ii) or has directed that such amount should
be transferred to and assumed by the Purchaser; and
(B) the amount accrued by Bridge Gas on account of long service
leave for that Transferring Employee as at the date on which
such employee's employment with Bridge Gas ceases;
(c) where a payment or allowance is made to the Purchaser for the Accrued
Employee Entitlements of a Transferring Employee in accordance with
Clause 13.8(b) the Purchaser shall, upon Completion taking place, take
over and be solely responsible for such Accrued Employee Entitlements
of that employee and indemnify the Vendor and Bridge Gas against all
Claims and Liabilities in connection with or arising out of or in
relation to such Accrued Employee Entitlements of that employee.
The indemnity provided for in this Clause shall take effect on and
from Completion and shall continue to have full force and effect at
all times thereafter notwithstanding that Completion has taken place
nor any other matter or thing whatsoever;
(d) on the termination of a Transferring Employee's employment with the
Purchaser or PGT Operator for any reason the Purchaser will pay to
that employee:
(i) any Accrued Employee Entitlements paid or allowed to the
Purchaser in respect of that employee and not previously
paid to that employee; and
(ii) any entitlements which may have accrued to that employee in
respect of or during the period of his employment by the
Purchaser or PGT Operator; and
(e) at the expiration of 6 months from the commencement of a Transferring
Employee's employment with the Purchaser or PGT Operator or on the
termination by the Purchaser or PGT Operator of that employee's
employment for any reason, whichever is the earlier, the Purchaser
will pay to that employee an amount equal to one week's pay at the
rate the employee was being paid by Bridge Gas immediately prior to
commencing employment with the Purchaser or PGT Operator, for every
3 months or part thereof that the employee was employed by Bridge Gas.
<PAGE>
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13.9 SUPERANNUATION - BRIDGE GAS EMPLOYEES
The Purchaser acknowledges and agrees that:
(a) the Bridge Gas Employees are members of the PPA Staff Superannuation
Plan ("SUPERANNUATION PLAN") of which Bridge Oil Staff Superannuation
Pty Limited (ACN 064 953 493) ("TRUSTEE") is the trustee;
(b) Bridge Gas will give notice to the Trustee of the cessation of the
employment of the Bridge Gas Employees by Bridge Gas and the
entitlements of such employees under the Superannuation Plan will be
paid or otherwise dealt with in accordance with the trust deed
relating to the Superannuation Plan; and
(c) on and from the commencement of employment by the Purchaser or PGT
Operator of any Bridge Gas Employee the Purchaser will or will cause
PGT Operator to make contributions to the superannuation of such
employee to the superannuation fund nominated by the Purchaser or PGT
Operator and in accordance with the terms of employment agreed with
such employee and all applicable laws.
14 LIABILITIES AND INDEMNITIES
14.1 LIABILITIES AFTER COMPLETION
Subject to Clause 6.9, the Purchaser shall on and from Completion assume
and perform all of the obligations of the Vendor in relation to the Assets
and shall indemnify and keep indemnified the Vendor against all Claims and
Liabilities arising out of or in connection with the Assets in so far as
those Claims and Liabilities are in respect of or relate to the period
after Completion.
14.2 INDEMNITIES
Without limiting the generality of Clause 14.1 the Purchaser will on and
from Completion indemnify the Vendor against all Claims and Liabilities
arising out of or in connection with the following documents in so far as
those Claims and Liabilities are in respect of or relate to the period
after Completion:
(a) the Transportation Contracts which are assigned to the Purchaser;
(b) the Specified Contracts;
(c) the agreements entered into between the Vendors and Landowners as
referred to in Clause 6.2;
(d) the Gladstone Maintenance Base Lease (unless it has been included in
the Excluded Assets pursuant to Clause 6.4);
(e) the GCQ Deed;
(f) the BHPMC Inlet Station Agreement; and
<PAGE>
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(g) the CMPS Agreement.
15 LIMITATION ON PURCHASER'S RIGHTS
15.1 NOTICE OF CLAIM
The Vendor is not liable to the Purchaser (or any person claiming through
the Purchaser) in connection with the agreement evidenced by this document
unless:
(a) the Purchaser has given timely notice to the Vendor of any fact or
circumstance which gives or may give rise to a claim by the Purchaser
and has afforded the Vendor the opportunity and reasonable assistance
during a period of 20 Business Days from the giving of such notice, at
the Vendor's expense, to investigate the same even though it may not
at the date of such notification give rise to any liability on the
part of the Vendor;
(b) the Purchaser has given written notice to the Vendor setting out
specific details of the claim within one year after Completion; and
(c) within six months after the giving of written notice under
Clause 15.1(b), the Purchaser's claim has been admitted by the Vendor
or settled between the Vendor and the Purchaser or the Purchaser has
instituted and served legal proceedings in respect of the claim.
15.2 MINIMUM CLAIM
No action, claim, demand or proceeding can be made, brought or raised by
the Purchaser against the Vendor in respect of a breach of any of the
Warranties or of any undertaking or obligation under this agreement or
under any indemnity ("Purchaser's Claim") unless the total value of the
Purchaser's Claim is greater than $1 million and there is no single
component of the Purchaser's Claim less than $200,000.00.
15.3 MAXIMUM CLAIM
The liability of the Vendor to the Purchaser in respect of all Purchaser's
Claims (including legal costs) is limited to $5 million and the Purchaser
is not entitled to claim or recover from the Vendor any amount in excess of
such sum.
15.4 NO LIABILITY FOR CONSEQUENTIAL LOSS
The Vendor shall not in any circumstances be liable to the Purchaser for
any loss of profits, economic loss, or special, indirect or consequential
loss or damage.
15.5 REIMBURSEMENTS FOR AMOUNTS RECEIVED
The Purchaser shall reimburse the Vendor for amounts paid by the Vendor to
the Purchaser in respect of any Purchaser's Claim to the extent to which
the same is recovered by the Purchaser from any third party including,
without limitation, but not limited to suppliers, manufacturers or
insurers.
<PAGE>
-31-
15.6 LIMITATIONS ON LIABILITY
The Vendor is not liable to the Purchaser (or any person deriving title
from the Purchaser) for any Claims or Liabilities (whether based in
contract, tort or statute) in relation to this document or the Assets:
(a) where the Claims or Liabilities arise or are in respect of matters
against which the Purchaser is insured for loss or damage suffered by
it, to the extent of such insurance cover;
(b) where the Purchaser ceases at any time after Completion to own the
Pipeline Assets; or
(c) where the Claims or Liabilities are as a result of or in consequence
of any voluntary act, omission, transaction or arrangement of or on
behalf of the Purchaser after Completion.
15.7 CLAIMS BY SUBSEQUENT OWNER
The Purchaser will indemnify the Vendor against all Claims made against the
Vendor by any subsequent owner of the Pipeline Assets or the holder of any
interest therein arising out of or in connection with the Pipeline Assets.
16 ANNOUNCEMENTS
16.1 CONFIDENTIALITY
Prior to Completion and save as required by law or by the rules of any
recognised stock exchange the negotiations of the parties and the subject
matter and terms of this document are to be kept confidential and released
to third parties (other than the parties' professional advisers) only with
the mutual written consent of the parties to this document.
16.2 STOCK EXCHANGE
In relation to any report to any recognised stock exchange pertaining to
the negotiations of the parties or the subject matter or the terms of this
document the notifying party shall whenever practicable, in advance of
reporting to such stock exchange, advise the other of the text of the
proposed report and provide the other party with a reasonable opportunity
of making comment upon the form and content before the report is issued.
17 MISCELLANEOUS
17.1 STAMP DUTY
The Purchaser shall, as between the parties, be liable for and duly pay all
stamp duty (including any fine or penalty) on or relating to this document
and any document executed under it.
17.2 LEGAL COSTS
<PAGE>
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Subject to any express provision in this document to the contrary, each
party shall bear its own legal and other costs and expenses relating
directly or indirectly to the preparation of, and performance of its
obligations under, this document.
17.3 AMENDMENT
This document may only be varied or replaced by a document in writing duly
executed by the parties.
17.4 WAIVER AND EXERCISE OF RIGHTS
A provision of or a right created by this document may not be waived except
in writing signed by the party or parties to be bound. A single or partial
exercise or waiver of a right relating to this document will not prevent
any other exercise of that right or the exercise of any other right.
17.5 RIGHTS CUMULATIVE
Subject to any express provision in this document to the contrary, the
rights of a party under this document are cumulative and are in addition to
any other rights of that party.
17.6 APPROVALS AND CONSENT
Subject to any express provision in this document to the contrary, a party
may conditionally or unconditionally give or withhold any consent to be
given under this document and is not obliged to give its reasons for doing
so.
17.7 FURTHER ASSURANCE
Each party shall promptly execute all documents and do all things that the
other party from time to time reasonably requires of it to effect, perfect
or complete the provisions of this document and any transaction
contemplated by it.
17.8 GOVERNING LAW
This document is governed by and is to be construed in accordance with the
laws applicable in the State.
17.9 JURISDICTION
Each party:
(a) irrevocably and unconditionally submits to the non-exclusive
jurisdiction of the courts of the State and any courts which have
jurisdiction to hear appeals from any of those courts; and
(b) waives any right to object to any proceedings being brought in those
courts on grounds of inconvenient forum or lack of jurisdiction.
17.10 ASSIGNMENT
No party may assign any right under this document without the prior
written consent of the other party.
<PAGE>
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17.11 COUNTERPARTS
This document may consist of a number of counterparts and if so the
counterparts taken together constitute one and the same instrument.
17.12 TIME OF ESSENCE
Time is of the essence as regards any date or period determined under this
document save only for the extent that any date or period may be altered
by mutual agreement between the parties whereupon time is of the essence
as regards such date or period as so altered.
17.13 COMPUTATION OF TIME
Where time is to be reckoned by reference to a day or event, that day or
the day of that event shall be excluded.
17.14 JOINT AND SEVERAL LIABILITY
An obligation of two or more persons binds them jointly and severally.
17.15 EFFECT OF EXECUTION
This document is not binding on any party unless it or a counterpart has
been duly executed by, or on behalf of, each person named as a party to
the document.
17.16 ENTIRE AGREEMENT
This document embodies the entire understanding and agreement between the
parties as to the subject matter of this document.
17.17 INVALIDITY
If any one or more provisions of this document should at any time be
invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions of this documents shall not
in any way be affected or impaired thereby.
17.18 MERGER
Notwithstanding Completion, any provision of this document to which effect
is not given by Completion and which is capable of or which is expressed
or implied to operate or have effect after Completion shall remain in full
force and effect.
18 NOTICES
18.1 GENERAL
A notice, demand, certification or other communication under this document:
<PAGE>
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(a) shall be given in writing and in the English language; and
(b) may be given by an agent of the sender.
18.2 METHOD OF SERVICE
In addition to any means authorised by law a communication may be given by:
(a) being delivered personally;
(b) being left at the party's current address for service;
(c) being sent to the party's current address for service by pre-paid
ordinary mail or if the address is outside Australia, by pre-paid air
mail; or
(d) facsimile to the party's current facsimile number.
18.3 ADDRESS FOR SERVICE
(a) The addresses and facsimile numbers are initially:
(i) in the case of the Purchaser:
PGT Australia Pty. Limited
Level 3, Waterfront Place
1 Eagle Street
Brisbane Qld 4000
Tel: (07) 3360 0273
Fax: (07) 3360 0276
Attention: Mr Michael McDanold
(ii) in the case of the Vendor:
State Gas Pipeline Sale Team
Queensland Treasury
Level 11
100 George Street
Brisbane Qld 4000
Tel: (07) 3224 6021
Fax: (07) 3210 0739
Attention: Mr Paul Connolly
(b) A party may from time to time change its address or numbers for
service by notice to the other party.
<PAGE>
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18.4 SERVICE BY POST
A communication given by post is to be taken to be received:
(a) if posted within Australia to an Australian address on the third
Business Day after posting; and
(b) in any other case, on the fifth Business Day after posting.
18.5 SERVICE BY FACSIMILE
A communication given by facsimile is deemed received when the sender's
facsimile machine produces a transmission report indicating that the
facsimile was sent to the addressee's facsimile number.
18.6 FORM RECEIVED
A communication given by facsimile is to be taken to be given in the form
transmitted unless the message is not fully received in legible form and
the addressee immediately notifies the sender of that fact.
18.7 PROCESS SERVICE
Any process or other document relating to litigation, administrative or
arbitral proceedings in relation to this document may be served by any
method contemplated by this clause in addition to any means authorised by
law.
18.8 SERVICE AFTER HOURS
If a communication to a party is received by it:
(a) after 5.00pm in the place of receipt; or
(b) on a day which is not a Business Day,
it is to be taken to have been received at the commencement of the next
Business Day.
19 UNDERTAKINGS BY VENDOR AND PURCHASER
19.1 MARKETING OFFICE
The Purchaser will by the Completion Date establish a Brisbane marketing
office with appropriate staff and facilities in respect of the Pipeline and
will maintain that office for as long as the Purchaser owns the Pipeline
Assets.
19.2 RESEARCH AND DEVELOPMENT COMMITMENT
The Purchaser undertakes to invest in appropriate research and development
to promote the use of natural gas in Queensland industry, which may include
support for organisations such as the Australian Magnesium Research
-36-
<PAGE>
and Development Project or the Australian Centre of Coal Seam Methane
Research and Extraction or a new project initiated by the Purchaser.
19.3 FURTHER LICENSES
The Vendor acknowledges that with respect to any further application for
licences under the Petroleum Act for gas transportation infrastructure on
the Pipeline Route, the Vendor will not seek to obtain a further premium
for any such licence (a premium having been obtained through this initial
sale). The Vendor's stated intention in this clause is that any further
licence application related to infrastructure on the Pipeline Route will be
treated on its merits in accordance with the Petroleum Act and it is
envisaged that any expansion would be to the benefit of customers.
COM1DOC/3407
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<PAGE>
SCHEDULE 1
PIPELINE
The Pipeline is comprised of the pipelines, communication systems, SCADA system,
meter and regulator stations and odorant facilities described in this Schedule.
PIPELINES:
The Pipeline consists of the following pipelines the specifications for which
are set out in the following table:
(a) the pipeline from Wallumbilla (longitude E 149DEG. 11' 06" latitude S
26DEG. 41' 41") to Gladstone City Gate (longitude E 151DEG. 9' 11"
latitude S 23DEG. 49' 62");
(b) the pipeline from Gladstone City Gate (longitude E 151DEG. 9' 11" latitude
S 23DEG. 49' 62") to Queensland Alumina Limited's refinery at Gladstone
(longitude E 151DEG. 17' 10" latitude S 23DEG. 51' 54.6"); and
(c) the Rockhampton branch pipeline from Larcom Creek (longitude E 51DEG. 00'
50.3" latitude S 23DEG. 53' 0.4") to Rockhampton City Gate (longitude E
150DEG. 30' 3.9" latitude S 23DEG. 19' 7").
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------
PIPELINE SPECIFICATIONS
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Max.
Date Nominal Allowable
Commiss- Length Diameter Wall Operating Coating
Pipeline ioned (kms) (mm) Thickness Pressure
(mm) (kPa)
- ----------------------------------------------------------------------------------------------------------------
Wallumbilla to Dec.1989 514 323.9 5.6 10,200 High Density
Gladstone City Polyethylene
Gate
- ----------------------------------------------------------------------------------------------------------------
Gladstone City June 1990 16 323.9 4.8 5,100 High Density
Gate to QAL Polyethylene
- ----------------------------------------------------------------------------------------------------------------
Larcom Creek to May 1991 96 219.1 4.5 10,200 High Density
Parkhurst Polyethylene
</TABLE>
<PAGE>
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COMMUNICATION SYSTEMS
The communications systems on the Pipeline are of two types, voice and data
communication.
VOICE:
The radio system for voice communications consists of eleven transmission towers
each with a VHF talk through repeater interconnected via a UHF link system.
Remote control consoles are located in the Gladstone Maintenance Base and the
Brisbane Control Centre. The remote unit in Brisbane is connected to the radio
system via a Telstra landline.
Radio telephone equipment installed at the Gladstone Maintenance Base and at the
Wallumbilla meter station allow the radio system to be connected with the
national telephone grid.
DATA:
The data communications network permits communication between the Brisbane
Control Centre and the remote sites along the Pipeline.
The communication is via the QNet satellite system for the sites of Wallumbilla,
Westgrove, Rolleston, Banana and Gladstone City Gate (QNet owned satellite dish
located in Gladstone) and via Telstra landlines to Larcom Creek and Rockhampton
City Gate.
The QAL communications are via a Telstra landline to Gladstone City Gate where
they are combined with the satellite communications.
The QNet satellite system consists of a 3.7 metre diameter satellite dish and
associated electronic equipment on site which relays the data from the PLC
through the Optus B satellite to the master earth station in Brisbane. From the
Brisbane master station the information is relayed via a Telstra landline to the
Brisbane Control Centre.
SCADA SYSTEM
The Supervisory Control and Data Acquisition (SCADA) system comprises a
Honeywell SN60 Data Manager master station at the Brisbane Control Centre which
communicates with the sites of Wallumbilla, Westgrove, Rolleston, Banana,
Gladstone City Gate, QAL, Larcom Creek and Rockhampton City Gate.
The SCADA system consists of the following:
1. Two DPS6 processors each with their own dedicated hard disk storage and
magnetic tape backup facility.
<PAGE>
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2. Communications Director (Peripheral switch) which interfaces the DPS6
processors with the QNet and Telecom systems.
3. Two operator stations mounted in a control console.
4. Event and Report Printers.
5. Colour Printer.
6. Automatic Dialler.
7. Auto-answer Modem.
8. Satellite and Telecom Data Modems.
9. Seven remote stations.
In addition to the master station at the Brisbane Control Centre, a remote
monitoring station is located at the Gladstone Maintenance Base for operations
and maintenance purposes.
Remote access terminals (RAT) are also provided to the Pipeline Controllers to
permit them to remotely dial-up and gain access to the master station for out of
hours monitoring and control.
METER AND REGULATOR STATIONS
INLET METER STATIONS:
The inlet meter stations at Wallumbilla, Westgrove and Rolleston consist of a
filter separator, an orifice meter run, associated bypass pipework and valves
and a station limit valve which can be remotely operated and which will also
automatically close upon detection of either a high inlet pressure or
temperature.
The instrumentation consists of Smart transmitters, a moisture analyser, gas
sampler, gas chromatograph, flow computer, printers, programmable logic
controllers (PLCs) and satellite communication facilities.
REGULATOR STATIONS:
There are four pressure regulating stations on the Pipeline. These are:
1 CALLIOPE MAINLINE VALVE (MLV):
A pressure control valve has been placed in parallel with the MLV and is
used to reduce the pressure to 6,000 kPa prior to the gas entering the
pressure reduction station at Larcom Creek and Gladstone City Gate. By
dropping the pressure in two stages, there is a reduced need to heat the
gas to prevent liquids being produced.
<PAGE>
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2 LARCOM CREEK:
This is a pressure reduction and metering station which includes similar
equipment to the inlet meter stations except that analytical equipment such
as a gas chromatograph, gas sampler and moisture analyser are not fitted.
Data from such equipment are received from the Gladstone City Gate station.
3 ROCKHAMPTON CITY GATE:
This station consists of dual orifice metering runs, filter separators,
dual redundant pressure reduction runs, the Smart range of transmitters,
PLC, flow computers, printers and associated control equipment.
4 GLADSTONE CITY GATE:
This station consists of dual orifice metering runs, filter separators,
dual redundant pressure reduction runs, the Smart range of transmitters,
PLC, flow computers, a gas chromatograph, moisture analyser, gas sampler,
printers and associated control equipment.
OUTLET METER STATIONS:
There are six outlet meter stations connected to the Pipeline.
(i) ICI AUSTRALIA OPERATIONS PTY LIMITED - GLADSTONE
This station consists of a turbine meter, filter, flow computer, Smart
transmitters and associated pipework and valves.
(ii) QUEENSLAND ALUMINA LIMITED - GLADSTONE
This station consists of dual orifice meter runs, filters, flow
computers, printer, Smart transmitters and associated pipework and
valves.
(iii) GAS CORPORATION OF QUEENSLAND LIMITED ("GAS CORPORATION") - BRESLIN
STREET, GLADSTONE AND NORTH AND SOUTH ROCKHAMPTON
These stations are owned by Gas Corporation. They are fitted with a
filter, positive displacement meter, flow computer and associated
pipework and valves.
The Vendor is responsible for testing of the Gas Corporation meters.
(iv) QUEENSLAND MAGNESIA (OPERATIONS) PTY LTD - PARKHURST
<PAGE>
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This station consists of a turbine meter, filter, flow computer, printer,
associated pipework and valves. It is located within the Rockhampton City
Gate station compound.
ODORANT FACILITIES
There are two odorant facilities on the Pipeline, one is located at Gladstone
City Gate and the other at Larcom Creek.
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SCHEDULE 2
PLAN OF BRISBANE OFFICE
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SCHEDULE 3
VEHICLES
REGISTRATION VEHICLE TYPE
PART A
976-BBS Toyota Landcruiser
QGD-870 Toyota Hilux Dual
00-8367 Box Trailer
00-8368 Box Trailer
0U-9496 Box Trailer
400-QBB Box Trailer
AC-7013 Box Trailer
PART B
690-DBN Toyota Hilux
616-DBN Toyota Hilux
691-DBN Toyota Hilux
571-CDK Toyota Hilux
582-DBN Toyota Hilux
640-DCT Ford Falcon
098-DCK Toyota Forerunner
581-DBN Toyota Hilux
115-BWQ Toyota Hilux
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SCHEDULE 4
ACCESS PRINCIPLES
PART 1 - PRELIMINARY
1.1 ACCESS PRINCIPLES FOR THE PGT QUEENSLAND GAS PIPELINE
These Access Principles are the access principles for the Pipeline for the
purposes of the Petroleum Act 1923.
1.2 COMPOSITION OF ACCESS PRINCIPLES
These access principles (the "ACCESS PRINCIPLES") consist of this Part 1
and the following Parts:
(a) Part 2 - Indicative Access Conditions;
(b) Part 3 - Tariff Setting Principles;
(c) Part 4 - Indicative Tariff Schedule.
1.3 DEFINITIONS
(1) In these Access Principles, unless the contrary intention appears:
"ACT" means the Petroleum Act 1923, as amended from time to time, or
any act in replacement of that Act.
"AS AVAILABLE RATE" means the amount per GJ per Day equal to 1.25
multiplied by the sum of (a) the Capacity Reservation Rate from time
to time, and (b) the Distance Reservation Rate from time to time
times the Distance Component.
"AS AVAILABLE SERVICE" means the provision of access in relation to a
gas transportation service in the Pipeline which is (a) subject to
interruption when the facility owner determines that capacity is not
available on the Pipeline due to the facility owner making an access
agreement relating to Firm Forward Haul Service, and (b) subject to
Curtailment.
"BACKHAUL RATE" means, subject to Clause 4.10(2) - Part 4 Indicative
Tariff Schedule, the amount of $0.40 per GJ.
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"BACKHAUL SERVICE" means the provision of access in relation to
contractual deliveries of gas in the direction opposite to the
physical flow of gas in the Pipeline, accomplished through a reduction
in the physical flow of gas, which is subject to curtailment or
interruption by the access provider when supplies of gas being
delivered to the Pipeline at the Delivery Point nominated under the
Backhaul service are inadequate to support that service.
"CAPACITY RESERVATION RATE" means, subject to Clause 4.10(1) - Part 4
Indicative Tariff Schedule, the amount of $0.50 per GJ.
"CURTAILMENT" means the right of the access provider to interrupt
transportation service on the Pipeline for reasons of force majeure
(that is, any event beyond the facility owner's control) or when it is
necessary for the safety and maintenance of the Pipeline or when it is
necessary to make modifications, repairs, or operating changes to the
Pipeline.
"DAY" means a period of 24 consecutive hours beginning at 8.00am
Australian Eastern Standard Time.
"DELIVERY POINT" means a point on the Pipeline at which gas is
delivered or deemed to be delivered from the Pipeline to or for the
account of a facility user under an access agreement.
"DISTANCE COMPONENT" means the distance measured along the Pipeline in
kilometres as determined by reference to the attached map of the
Pipeline, between the Receipt Point at which gas is received into the
Pipeline from or on account of the relevant facility user during the
Day and the Delivery Point at which gas is delivered from the Pipeline
to or for the account of the relevant facility user during the Day.
"DISTANCE RESERVATION RATE" means, subject to Clause 4.4(2) - Part 4
Indicative Tariff Schedule, the amount of $0.000943 per GJ per
kilometre.
"ELECTRONIC BULLETIN BOARD" means software known as the Electronic
Bulletin Board which provides information to facility users and
proposed facility users.
"EXPANSION DATE" means the date upon which the facility owner first
commences transportation services under access agreements providing
for firm contracted capacity for Firm Forward Haul Services of 25 PJ
or more on an annualised basis.
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"FIRM FORWARD HAUL SERVICE" means the provision of access in relation
to a gas transportation service in the Pipeline which is subject to
Curtailment but not any other interruption by the facility owner.
"FORCE MAJEURE" means any acts of God, strikes, lockouts, or other
industrial disturbances, acts of public enemies, sabotage, wars,
blockades, insurrections, riots, epidemics, landslides, lightning,
earthquakes, floods, storms, cyclones, fires, washouts, extreme
weather conditions, arrests and restraints of rulers and people, civil
disturbances, explosions, breakage of or accident to machinery or
lines of pipe, hydrate obstructions of lines of pipe, inability to
obtain pipe, materials or equipment, legislative, administrative or
judicial action which has been resisted in good faith by all
reasonable legal means, and any acts, omissions or causes whether of
the kind herein enumerated or otherwise where any such cause is not
reasonably within the control of the party invoking Force Majeure and
which by the exercise of due diligence such party could not have
prevented the necessity for making repairs to, replacing, or
reconditioning machinery, equipment, or pipelines not resulting from
the fault or negligence of the party invoking Force Majeure.
"GJ" means gigajoule of gas.
"GROSS HEATING VALUE" means the energy produced by the complete
combustion of One Cubic Metre of Gas with air, at a temperature of 15
degrees Celsius and at an absolute pressure of 101.325 kPa, with the
Gas free of all water vapour, the products of combustion cooled to a
temperature of 15 degrees Celsius and the water vapour formed by
combustion condensed to the liquid state, expressed in MJ per Cubic
Metre (MJ/m(3)).
"IMBALANCE" exists in relation to an access agreement if there is a
difference on any Day between the quantities of gas received by the
access provider at Receipt Points for a facility user's account
(excluding System Use Gas) and the quantities of gas delivered to or
on account of the facility user at the Delivery Points.
"INDICATIVE TARIFF SCHEDULE" means the indicative tariff schedule for
the Pipeline referred to in Part 4 - Indicative Tariff Schedule.
"KPAG" shall mean kilopascals gauge.
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"LINE PACK" means the quantity of gas in the Pipeline which is
necessary for physical operation of the Pipeline, excluding System Use
Gas.
"MAXIMUM TARIFF" means the maximum tariffs and charges which may be
levied by an access provider on a facility user for access to the
Pipeline under an access agreement.
"MDQ" means the fixed maximum quantity of gas (in GJ) which an access
provider is obliged to deliver at all Delivery Points (exclusive of
System Use Gas) for the account of a facility user on each Day under
an access agreement between the access provider and the facility user,
as specified in that access agreement. By agreement with the access
provider, a facility user's MDQ may be increased, but not decreased,
during the term of the access agreement subject to the availability of
spare capacity.
"MINISTER" means the Minister of the Crown who is for the time being
the Minister for the purposes of the Act.
"MJ" means megajoule of gas.
"MONTH" means a period extending from the beginning of the first Day
in a calendar month to the beginning of the first Day in the next
calendar month.
"NET NEGATIVE IMBALANCE" means an Imbalance when the quantities
delivered on a Day are less than the quantities received on that Day.
"NET POSITIVE IMBALANCE" means the cumulative Imbalance from the first
day to the last day of a Month where quantities delivered exceed
quantities received.
"NEW SERVICE" has the meaning given in Clause 4.15 - Part 4 Indicative
Tariff Schedule.
"NOMINATION" means a schedule provided monthly by a facility user to
its access provider, showing, for each Day of the applicable Month:
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(a) the quantities of gas (in GJ) intended to be presented at each
Receipt Point by or on behalf of the facility user under an
access agreement; and
(b) the quantities of gas (in GJ) required to be delivered at each
Delivery Point to or for the account of the facility user under
an access agreement.
"OVERRUN QUANTITY" means the quantity of gas (in GJ) delivered by an
access provider to or for the account of a facility user at all
Delivery Points during any Day under an access agreement that is
greater than the MDQ under the access agreement for that Day.
"OVERRUN RATE" for any Day shall equal the sum of (a) the facility
user's Capacity Reservation Rate, and (b) the facility user's Distance
Reservation Rate times the Distance Component, determined on a
weighted average basis based on the quantities of gas shown on the
nomination at each Delivery Point.
"OVERRUN SERVICE" means a service comprising the delivery of an
Overrun Quantity.
"PIPELINE" means the pipeline licensed under Pipeline Licence No. 30
pursuant to the Act.
"PJ" means petajoule of gas.
"PROPOSED NEW SERVICE CONDITIONS" has the meaning given in Clause 4.15
- Part 4 Indicative Tariff Schedule.
"RATE CAP" means:
(a) prior to the Expansion Date, $0.795 per GJ of MDQ; and
(b) on and from the Expansion Date, $0.71 per GJ of MDQ.
"RECEIPT POINT" means a point at which gas is received or deemed to be
received into the Pipeline from or on account of a facility user under
an access agreement.
"SWAP" means an arrangement between two or more facility users under
which the facility users agree to exchange quantities of gas
purchased, resulting in an exchange of the facility user's quantities
of gas at the Receipt Points of
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which the facility users give notice to the facility owner pursuant to
their individual access agreements. The facility owner is not a party
to the arrangement.
"SYSTEM USE GAS" means the quantities of gas necessarily used in the
operation of the Pipeline, including gas used as fuel for compressors
or other equipment and quantities otherwise lost and unaccounted for
in connection with the operation of the Pipeline but excludes Line
Pack and gas lost through the negligence of the facility owner.
"TARIFF SETTING PRINCIPLES" means the tariff setting principles
referred to in Part 3 - Tariff Setting Principles.
"TJ" means terajoule of gas.
(2) Unless the contrary intention appears:
(a) if the Act gives a meaning to a term in relation to a facility,
the same term in these Access Principles has the same meaning in
relation to the Pipeline; and
(b) words used in these Access Principles that are also defined
in the Act have the meaning so defined.
1.4 EFFECT OF INVALIDITY OF ANY PROVISION
If any term, clause or provision of these Access Principles is invalid
for any reason, such invalidity shall not affect the validity or
operation of any other term, clause or provision of these Access
Principles except to the extent necessary to give effect to such
invalidity.
1.5 HEADINGS NOT PART OF ACCESS PRINCIPLES
The headings to the Parts and Clauses of these Access Principles do not
form part of these Access Principles.
PART 2 - INDICATIVE ACCESS CONDITIONS
2.1 CONDITIONS INCLUDE PART 1 - PRELIMINARY
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Part 1 (Preliminary) of these Access Principles forms part of the
indicative access conditions set out in this Part.
2.2 ACCESS AGREEMENTS
Each access agreement must:
(a) be governed by and construed in accordance with the laws of the State
of Queensland;
(b) be for the term agreed between the parties subject to Clause 4.2(6);
(c) provide, subject to Clause 2.2(d) and Clause 2.8, that a facility user
may assign all or part of the facility user's interest in the access
agreement subject to compliance with the requirements in Clause 4.13;
and
(d) provide that the access provider cannot require the payment of any
additional amount in connection with the assignment of all or part of
the facility user's interest in the access agreement.
2.3 SYSTEM USE GAS
An access agreement other than in relation to a Back Haul Service must
provide that a facility user is required to supply, on a pro rata basis
based on capacity reserved, System Use Gas of up to and including 1.5% of
the facility user's MDQ at its cost unless the parties otherwise agree.
The facility owner will be responsible for supplying System Use Gas in
excess of 1.5% of the facility user's MDQ unless the parties otherwise
agree.
2.4 GAS PRESSURES
(1) An access agreement must provide that the access provider will deliver
gas at any of the Delivery Points at a pressure not less than 1,700
kPag or at a pressure (not less than 1,700 kPag) which is the minimum
pressure from time to time necessary to ensure that gas can be
delivered at a Delivery Point as determined by the facility owner
unless the parties otherwise agree.
(2) An access agreement must provide that the facility user will deliver
gas at a Receipt Point at pressures sufficient to allow the gas to
enter the Pipeline as determined by the access provider, but the
facility user shall not be required to deliver gas at a Receipt Point
at pressures in excess of 10,200 kPag.
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2.5 OWNERSHIP OF GAS
An access agreement must provide that:
(a) ownership of all gas supplied by or on account of a facility user,
between each Delivery Point and each Receipt Point will remain the
property of the facility user;
(b) the access provider will be responsible for custody of the gas in the
Pipeline; and
(c) on the termination of the access agreement, the facility user is
entitled to recover from the Pipeline gas, supplied by the facility
user, and not delivered to a Delivery Point to or for the account of
the facility user or is entitled to receive from the access provider
an amount equal to the then existing market price of that gas.
2.6 METERING AND INSPECTION
An access agreement must provide that the access provider must allow the
facility user, or cause the facility user to be allowed at all reasonable
times by giving reasonable prior notice to the facility owner, to:
(a) inspect the measuring equipment and records at any Receipt Point or
Delivery Point,
(b) request the facility owner to conduct a calibration (to the extent to
which the facility owner is capable) at the Receipt Point or Delivery
Point of any measuring equipment the facility user reasonably believes
to be inaccurate. The cost of such calibration will be borne by the
facility user if the measuring equipment is found to be accurate
within the billing correction limits set out in the facility owner's
calibration manual for the Pipeline, or by the facility owner if found
to be outside any of those billing correction limits.
If after such calibration the measuring equipment is found to be in error
in excess of the billing correction limit such that the total measurement
error for the Receipt Point or Delivery Point exceeds 1% of the total
quantity of gas measured unless otherwise agreed between the facility owner
and the facility user, then the facility owner will adjust the total
quantity of gas measured at the Receipt Point or Delivery Point and issue a
correction to the facility user's invoice for a period equal to one half
the time period since the last calibration.
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2.7 SPARE OR DEVELOPABLE CAPACITY OF THE FACILITY OWNER
(1) This clause 2.7 applies to developable capacity or spare capacity of the
facility owner that is or becomes available for a Firm Forward Haul
Service, but not when capacity is reserved through the renewal, or
extension of the term, of an existing access agreement.
(2) The facility owner shall post and maintain a notice requesting bids for the
spare or developable capacity on the Electronic Bulletin Board of the
facility owner, or in such other manner as reasonably determined by the
facility owner from time to time, stating as a minimum:
(a) the capacity and the minimum terms (which may include price) on
which the capacity is available; and
(b) how bids for the whole or part of the capacity may be made; and
(c) if appropriate, the time determined by the facility owner for
making of the bids; and
(d) a reasonable discount rate selected by the facility owner for
calculation of the net present value of bids; and
(e) particulars of bids as they are made (excluding the name of the
bidder).
(1) The maximum tariffs and charges that may be bid must not exceed the Maximum
Tariff.
(2) Sub-clause (2) does not prevent a facility owner negotiating with a
proposed facility user before posting a notice in accordance with that
subclause.
(3) A potential facility user may withdraw any previously submitted bid and
resubmit any bid at any time before the bidding period expires.
Resubmitted bids must be equal to or greater in value than the initial
bids. Lower valued bids will be invalid.
(4) (a) If the capacity available is insufficient to meet the total capacity
bid for, the facility owner will evaluate the bids and determine the
total bid or bids having the greatest economic value as determined by
reference to the net present value of the capacity reservation charges
(as defined in clause 4.4 (1) (a) (i) ) payable over the term in the
bid or bids.
(C) The facility owner shall then notify these bidders in order of their
economic value whose bids for capacity total the spare capacity,
provided that if the economic value of separate bids is equal, then
those bidders will be notified that
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the capacity requested is only available on a pro-rata basis. If any
such bidder withdraws its bid, its portion of the capacity will be
allotted to the remaining such bidders on a pro-rata basis.
(2) The facility owner must commence negotiations on a non-discriminatory basis
with each of the bidders whose bids conform to the minimum terms stated in
the notice under subclause (2) but, if subclause (6) applies, only those
bidders who are notified under that subclause, for an access agreement in
respect of such capacity at the same time.
(3) The facility owner and the bidders must negotiate in good faith for
reaching a fair and reasonable access agreement on terms not inconsistent
with these Access Principles.
(4) The proposed facility user must demonstrate creditworthiness in accordance
with the requirements in Clause 4.13.
(5) Once an access agreement is signed by the facility owner, the facility
owner shall promptly notify its existing facility users of the capacity and
terms of the agreement.
2.8 CAPACITY RELEASE BY FACILITY USERS
(1) This Clause 2.8 applies to spare capacity of a facility user that is or
becomes available for a Firm Forward Haul Service.
(2) A facility user must not make an access agreement with a proposed facility
user in respect of the facility user's spare capacity (including any access
agreement ordered to be made by an arbitrator under section 137 of the Act)
unless sub-clauses (3) to (10) have been complied with.
(3) The facility user must notify the facility owner of:
(a) the capacity and the minimum terms ( which may include price) under
which the facility user desires to assign or release capacity or make
an access agreement;.
(b) if appropriate, the time determined by the facility user for making of
the bids.
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(4) The facility owner shall post and maintain a notice requesting bids for the
facility user's spare capacity on the Electronic Bulletin Board, or in such
other manner as reasonably determined by the facility owner from time to
time, stating (as a minimum):
(a) the details notified to it pursuant to sub-clause (3); and
(b) how bids for the whole or part of the capacity may be made; and
(c) a reasonable discount rate selected by the facility user for
calculation of the net present value of bids; and
(d) particulars of bids as they are made (excluding the name of the
bidder).
(5) The maximum tariffs and charges that may be bid must not exceed the Maximum
Tariff.
(6) Sub-clause (2) does not prevent a facility user negotiating with a proposed
facility user before notifying the facility owner in accordance with sub-
clause (3).
(7) A potential facility user may withdraw any previously submitted bid and
resubmit any bid at any time before the bidding period expires.
Resubmitted bids must be equal to or greater in value than the initial
bids. Lower valued bids will be invalid
.
(8) (a) If the capacity available is insufficient to meet the total capacity
bid for, the facility owner will evaluate the bids and determine the
bid or bids having the greatest economic value as determined by
reference to the net present value of the capacity reservation charges
payable over the term in the bid or bids.
(a) The facility owner shall then notify the facility user and these
bidders in order of their economic value whose bids for capacity total
spare capacity, provided that if the economic value of separate bids
is equal, then those bidders will be notified that the capacity
requested is only available on a pro-rata basis. If any such bidder
withdraws its bid, its portion of capacity will be allotted to the
remaining such bidders on a pro-rata basis.
(9) The facility user must commence negotiations on a non-discriminatory basis
with each of the bidders whose bid conforms to the minimum terms stated in
the notice under sub-clause (3) but, if sub-clause (8) applies, only those
bidders who are notified under that sub-clause, for an access agreement in
respect of such capacity at the same time.
(10) The facility user and the bidders must negotiate in good faith for reaching
a fair and reasonable access agreement on terms not inconsistent with these
Access Principles.
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(11) A facility user remains liable for all its obligations under its access
agreement even if it assigns its interests under the agreement, unless the
facility user's access provider otherwise agrees.
2.9 SWAPS
Swaps are permissible transactions under these Access Principles. The
facility owner will not charge a fee to the applicable facility users for
the Swaps transaction.
2.10 ACCESS DISPUTE
Any access dispute shall be resolved according to the provisions of the
Act.
2.11 LINE PACK
The facility owner shall be responsible for acquiring and maintaining Line
Pack for the safe and efficient operation of the Pipeline and the
performance of contracted services. Line Pack shall at all times be the
property of the facility owner.
PART 3 - TARIFF SETTING PRINCIPLES
3.1 PRINCIPLES INCLUDE PART 1 - PRELIMINARY
Part 1 (Preliminary) of these Access Principles forms part of the tariff
setting principles set out in this Part.
3.2 SCHEDULE TO INDICATE MAXIMUM TARIFF
The Indicative Tariff Schedule for the Pipeline shall:
(a) set out the Maximum Tariff or a methodology for determining the
Maximum Tariff for access to the Pipeline;
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(b) subject to the requirements of the Indicative Tariff Schedule and the
Maximum Tariff, provide that tariffs and charges under access
agreements will be a matter for negotiation between the relevant
parties to each access agreement.
3.3 SCHEDULE TO INCLUDE OTHER CONDITIONS
The Indicative Tariff Schedule for the Pipeline shall set out terms and
conditions that relate to the operation of the Pipeline or financial
matters concerning the Pipeline appropriate to, or to assist in the
determination of, tariffs and charges under the Indicative Tariff Schedule.
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PART 4 - INDICATIVE TARIFF SCHEDULE
4.1 SCHEDULE INCLUDES PART 1 - PRELIMINARY
Part 1 (Preliminary) of these Access Principles forms part of the
Indicative Tariff Schedule set out in this Part.
4.2 MAXIMUM TARIFFS AND CHARGES
(1) The Maximum Tariff provided for in this Indicative Tariff Schedule
encompasses all the tariffs and charges which may be levied by an
access provider on a facility user for access to the Pipeline.
(2) The Maximum Tariff provided for in this Indicative Tariff Schedule is
for and extends to all types of access to the Pipeline including,
without limitation, for the following services:
(a) receipt of gas at the Receipt Points;
(b) transportation of gas to the Delivery Points, including use of
compression facilities installed on the Pipeline,
(c) delivery of gas at the Delivery Points,
(d) measurement of gas quantity and quality for the purposes of
metering, billing and the operational and safety requirements of
the Pipeline;
(e) measurement and control of gas pressures for the purposes of
metering, billing and the operational and safety requirements of
the Pipeline;
(f) establishment and management of transportation accounts,
preparation of invoices and collection of revenue for tariff
purposes;
(g) operation and maintenance of the Pipeline;
(h) provision of all business and customer support services required
for the provision of the services listed above or required by
this Indicative Tariff Schedule.
(3) Subject to sub-clause (1) and the other provisions of these Access
Principles and to the limits of the Maximum Tariff, tariffs and
charges under access agreements are a matter for negotiation between
the relevant parties to each access agreement.
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(4) Subject to sub-clause (5) an access provider is not obliged to enter
into any access agreement with provision for tariffs and charges that
are less than the Maximum Tariff.
(5) If an access provider agrees to charge a facility user less than the
Maximum Tariff for access under an access agreement then that access
provider must, on and from the effective date of such reduced tariffs
and charges, charge such reduced tariffs and charges under all other
access agreements which provide for similar access and must post a
notice on the Electronic Bulletin Board of the facility owner (or
provide notice in such other manner as reasonably determined by the
facility owner) describing the similar access including the reduced
tariffs and charges. For purposes of this sub-clause (5), "similar
access" means that, in all material respects, the terms and conditions
for access under the relevant access agreements (including, without
limitation, term (if a new access agreement), termination date (if an
amended access agreement), payment provisions, and currency risk
allocation) are equivalent, provided that material differences in
quantity or distance of haul are not to be taken into account.
If any existing facility user proposes within a period of 1 year of
the posting of the above notice or longer period determined by the
facility owner to change its existing access agreement with the
facility owner so that it provides for similar access, then the
facility owner will agree to those changes. As an alternative, the
facility user may request the facility owner to enter into a new
access agreement providing for similar access and, if such request is
made, the facility owner will enter into that new access agreement
with the facility user and the existing access agreement of the
facility user will be cancelled.
Subject to capacity being available and a proposed facility user being
creditworthy, if a proposed facility user proposes to the facility
owner that it will enter into an access agreement which provides for
similar access with the facility owner within a period of 1 year of
the posting of the above notice or longer period determined by the
facility owner, the facility owner will enter into such an access
agreement with the proposed facility user.
(6) An access agreement with the facility owner which relates to Firm
Forward Haul Service will be for a term of 10 years or more, as agreed
by the parties. This provision will not apply to renewals or
extensions of an access agreement in conformance with that access
agreement or the provisions of the Petroleum Act 1923.
4.3 APPLICATION
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Notwithstanding anything to the contrary contained in this Part 4,
Clauses 4.3 to 4.14 inclusive of this Part apply only to Firm Forward
Haul Services, Backhaul Services and As Available Services.
4.4 TARIFFS AND CHARGES
(1) Subject to adjustment in accordance with the following clauses of this
Part, the Maximum Tariff for each access agreement for the Pipeline
consists of:
(a) where the access agreement relates to Firm Forward Haul Service,
for each Day:
(i) a capacity reservation charge equal to the Capacity
Reservation Rate multiplied by the relevant facility user's
MDQ; and
(ii) a distance reservation charge equal to the Distance
Reservation Rate multiplied by the Distance Component
multiplied by the relevant facility user's MDQ;
(b) where the access agreement relates to Backhaul Service, for each
Day, a back haul reservation charge equal to the Backhaul Rate
multiplied by the relevant facility user's MDQ;
(c) where the access agreement relates to As Available Service, for
each Day, a charge equal to the As Available Rate multiplied by
the quantity of gas (in GJ) delivered at a Delivery Point for the
account of the facility user on the relevant day.
(d) overrun charges and Imbalance charges in accordance with Clauses
4.8 and 4.9;
(e) a charge for new taxes, duties or charges imposed by any
government or other regulatory authority in accordance with
Clause 4.12;
(f) costs of construction, operation and maintenance of capital
improvements in accordance with Clause 4.14(6).
(2) On and from the Expansion Date, the Distance Reservation Rate shall be
$0.000660 per GJ per kilometre.
(3) If the average capacity reservation charge and distance reservation
charge as determined under Clause 4.4(1)(a) actually charged to a
facility user per GJ of MDQ per Day by the access provider in any year
commencing on 1 July exceeds the applicable Rate Cap, then the access
provider will rebate such excess to that facility user. At the option
of the access provider, the rebate will be provided to the facility
user either through a cash refund within 30 days after the
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end of that year or through a credit of 1/12th of that excess each
month for the monthly invoices issued under the access agreement for
the 12 months after the end of that year.
(4) The overrun and Imbalance charges referred to in this Indicative
Tariff Schedule may only be included in an access agreement subject to
the access provider providing the facility user with:
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(a) sufficient and timely information; and
(b) adequate time to install control measures at the facility user's
option;
which will allow the facility user to take practical measures to
avoid incurring such charges.
4.5 RECEIPT AND DELIVERY POINTS
Subject to the availability of capacity, each facility user may vary
receipts and deliveries between different Receipt Points and Delivery
Points at three month intervals upon 30 days notice, provided that the
facility owner may agree to allow more frequent intervals and may allow a
shorter notice period.
4.6 NOMINATIONS
(1) Each access agreement shall include a requirement that each facility
user shall provide a Nomination prior to the commencement of the Month
for which the Nomination is to apply, provided that the access
provider shall have the discretion to accept changes in the Nomination
at such other times as operating conditions permit and without
detrimental impact to other facility users.
(2) However, an access agreement must not require a facility user to
provide a Nomination earlier than 10 Days prior to the commencement of
the Month for which it is to apply.
4.7 GENERALLY RECEIPTS AND DELIVERIES TO BE WITHIN MDQ
Subject to Clause 4.9, an access provider shall not be obliged, on any Day:
(a) to receive at all Receipt Points a quantity of gas, excluding System
Use Gas; or
(b) to deliver at all Delivery Points a quantity of gas; greater than the
MDQ for that Day.
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4.8 OVERRUN CHARGES
(1) For an Overrun Service in excess of the facility user's MDQ by more
than 5%, the facility user shall pay an overrun charge equal to the
Overrun Rate multiplied by the quantity of gas (in GJ) by which the
facility user's Overrun Quantity exceeds 5% of the MDQ
(2) For an Overrun Service which occurs in circumstances when the access
provider has declared by notice that physical or operational
circumstances exist on the Pipeline which require that the facility
users of the Pipeline limit their access to their respective MDQs,
then the facility user shall pay an overrun charge equal to:
(a) in the case of Firm Forward Haul Service, the facility user's
Overrun Quantity multiplied by an amount equal to the Overrun
Rate plus $1.00 per GJ;
(b) in the case of As Available Service, the facility user's Overrun
Quantity multiplied by an amount equal to the As Available Rate
plus $1.00 per GJ; or
(c) in the case of Backhaul Service, the facility user's Overrun
Quantity multiplied by an amount equal to the Backhaul Rate plus
$1.00 per GJ.
4.9 IMBALANCE CHARGE
(1) Each facility user will be responsible to control and, if necessary,
adjust the receipts and deliveries of gas to maintain a balance
between the facility user's receipts (net of System Use Gas) and
deliveries.
(2) If a Net Positive Imbalance exists at the end of a Month, then the
facility user will correct a continuing Imbalance during the
subsequent Month by making adjustments in receipts and/or deliveries.
If a Net Negative Imbalance exists at any time, the facility user
shall correct that Imbalance within 3 days after receiving
notification of the existence of that Imbalance from the facility
owner.
(3) If a facility user fails to take corrective action under sub-clause
(2), the access provider may adjust the facility user's receipts and
deliveries over that subsequent Month to correct that continuing
Imbalance.
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(4) If a Net Positive Imbalance still remains at the end of the subsequent
Month, from the beginning of the next Month until the Imbalance is
eliminated, the access provider may charge the facility user an
Imbalance Charge equal to the Net Positive Imbalance multiplied by the
imputed cost of the Net Positive Imbalance multiplied by a daily rate
equal to (a) the Indicator Lending Rate for business loans published
by Westpac Banking Corporation (expressed as a percentage per annum)
which is effective as at the first Day of the applicable Month,
divided by (b) 365. If such Indicator Lending Rate is not available,
the facility owner may select another equivalent rate. The imputed
cost of an Imbalance shall be determined and published from time to
time by the facility owner and is the cost to the facility owner of
the Line Pack per GJ. For the first year commencing on 1 July 1996,
the cost of the Line Pack shall be $2.81 per GJ.
(5) The access provider will not be entitled to act under sub-clause (4)
in respect of any Imbalance that has been corrected during a Month
notwithstanding that a further Imbalance has subsequently arisen by
the end of that Month.
4.10 TARIFF ESCALATION
(1) The Capacity Reservation Rate, as increased by the earlier application
of this clause, may be increased by the facility owner by no more than
$0.04 on the first day of July in the years 2001, 2006, 2011, 2016,
2021, 2026, and 2031.
(2) The Backhaul Rate, as increased by the earlier application of this
clause, may be increased by the facility owner by no more than $0.03
on the first day of July in the years 2001, 2006, 2011, 2016, 2021,
2026, and 2031.
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4.11 FORCE MAJEURE
(12) If as a result of Force Majeure:
(i) the capacity of the Pipeline is constrained so that the
facility owner is unable to comply with the requirements of
its access agreements with all or any number of facility
users;
(ii) the facility owner determines to allocate the available
capacity in accordance with those access agreements; and
(iii) the capacity allocated to a facility user is less than its
contracted transportation quantities;
the facility owner's failure to transport such contracted quantities
shall be deemed to be caused by Force Majeure.
(2) A Force Majeure event affecting the performance of either party to an
access agreement shall not constitute a breach of the obligations of
such party, but such party shall use reasonable diligence to put
itself in a position to carry out its obligations, provided that no
such Force Majeure event shall continue to relieve such party from its
obligation after the expiration of a reasonable period of time within
which by the use of due diligence such party could have remedied the
situation preventing its performance, nor shall any such cause relieve
either party from any obligation unless such party shall give notice
in writing to the other party with reasonable promptness, and like
notice shall be given upon termination of such cause.
(3) The failure of the facility owner to perform due to Force Majeure
shall not relieve a facility user from its obligation to make payments
due, including the payment of all charges due under Clause 4.4, for
the duration of such cause. Subject to sub-clause (4), where any such
cause relates to the physical operation of the Pipeline the agreed
term of any executed access agreement for Firm Forward Haul Service
shall be extended by a time period equal to the duration of such cause
and during that extended time period the facility user will be
relieved from its obligation to pay charges due under Clause 4.4 for
quantities of gas transported during that time period up to the
facility user's MDQ.
(4) Where any such cause relates to the physical operation of the Pipeline
which prevents a facility user under an access agreement for Firm
Forward Haul Service from transporting a quantity of gas each day
equal to its MDQ, then the facility user may, up to a maximum period
of thirty days after such cause has ceased, nominate and
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transport through the Pipeline an additional quantity of gas equal to
the difference between (a) the quantity of gas transported by the
facility user during the period that such cause continued and (b) its
MDQ during that period. Such additional quantities may be transported
at a daily quantity not to exceed 15% of the facility user's MDQ,
subject to Curtailment and the availability of Pipeline capacity. To
the extent that this right is exercised, then the extended term of the
executed access agreement otherwise applicable under sub-clause (3)
will be adjusted accordingly. The facility user will have no
obligation to pay charges due under Clause 4.4(1)(a) for such
additional quantities of gas transported, but will be obligated to
reimburse the facility owner for any incremental costs incurred by the
facility owner in providing the additional transportation quantities.
(5) Where the facility user under an access agreement for Firm Forward
Haul Service is prevented from transporting gas up to its MDQ due to
events beyond its control involving full or partial shutdown of the
facility user plant or non supply of gas from gas fields providing gas
to the facility user, then the facility user will have a right to
nominate and transport the quantities of gas that were not transported
due to such events within a period of thirty days after those events
cease. The facility user will have no obligation to pay charges due
under Section 4.4(1)(a) for such quantities but will be obligated to
reimburse the facility owner for any incremental costs incurred by the
facility owner in providing the transportation of that quantity. Such
quantities may be transported at a daily rate not to exceed 15% of the
facility user's MDQ, subject to Curtailment and the availability of
Pipeline capacity.
4.12 GOVERNMENT TAXES, DUTIES AND CHARGES
If, after 1 July 1996, a government or other regulatory authority imposes
or applies a new tax, duty or charge made or imposed directly in respect of
quantities transported by the access provider, then the access provider is
entitled to recover from its facility users, on a pro rata basis based on
capacity reserved, the amount of that new tax, duty or charge which it is
liable to pay under an access agreement so long as that tax, duty or charge
is effective.
4.13 CREDITWORTHINESS
The facility owner shall not be required enter into an access agreement
with a proposed facility user, or perform services under that agreement,
and a facility user shall not assign all or part of its interest in its
access agreement to a proposed facility user, who is or has become
insolvent or who, after the facility owner's request, fails within a
reasonable period to establish or confirm creditworthiness provided that
creditworthiness does not need to be established by a proposed facility
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user who takes an assignment of an interest in an access agreement from a
facility user where the facility user continues to be liable to the
facility owner for all obligations under the access agreement.
All proposed facility users (other than one which does not need to
establish creditworthiness) and facility users shall provide, initially and
on a continuing basis, financial statements, evidence of debt and/or credit
ratings, and other such information as is reasonably requested by the
facility owner to establish or confirm the proposed facility user's or the
facility user's qualification for service. All information provided for
credit evaluation purposes shall be used by the facility owner solely for
this purpose and shall be held in confidence. The facility owner shall
apply consistent evaluation practices to determine creditworthiness.
Credit limits will be established based on the level of requested service
and proposed facility user or facility user creditworthiness as established
by the following:
(a) The proposed facility user or facility user may demonstrate
creditworthiness by providing two years of audited financial
statements demonstrating adequate financial strength to justify the
amount of credit to be extended.
(b) The proposed facility user or facility user may demonstrate
creditworthiness by providing evidence of a senior ebt rating of BB+
or better, or a short-term debt rating of A-3 or better, from an
acceptable rating agency.
(c) If the proposed facility user or facility user does not establish
or maintain creditworthiness as described above, the proposed facility
user or facility user has the option of establishing creditworthiness
by providing one of the following alternatives:
(i) A guarantee of the proposed facility user's or the facility
user's financial performance in a form satisfactory to the
facility owner and for the term of the access agreement from
a corporate entity that meets one of the above
creditworthiness standards;
(ii) a satisfactory irrevocable letter of credit in an amount
adequate to cover one year of charges under the proposed
facility user's proposed access agreement or the facility
user's access agreement. The letter of credit must be
issued by a financial institution with a rating of A- or
better from an acceptable rating agency; or
(iii) other arrangements satisfactory to the facility owner.
4.14 GENERAL
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(1) The facility owner and each access provider will carry out their
respective obligations under the Act and these Access Principles
(including the operation of the Electronic Bulletin Board) and operate
the Pipeline and transport petroleum in a workman like and
commercially reasonable manner in accordance with reasonable operating
and management practices.
(2) An access provider's obligation to transport gas shall consist of the
receipt of gas at the Receipt Points for a facility user's account and
the delivery of a thermally equivalent quantity of gas at the Delivery
Points (less any System Use Gas).
(3) An access provider will be responsible for any gas lost from the
Pipeline due to its negligence or wilful default.
(4) An access provider shall have the right to co-mingle the gas received
from its facility user with gas transported for other facility users
and to deliver different molecules.
(5) An access provider may include in an access agreement a provision that
the gas delivered by a facility user to the access provider at the
Receipt Point(s) and the gas delivered by an access provider to the
facility user at the Delivery Point shall comply with the
specifications set out in sub-clause (5) as may be varied from time to
time by:
(i) agreement between the Minister and the facility owner; or
(ii) a determination by the Minister; or
(iii) agreement between the facility owner and the facility user.
However, an access provider shall not include any additional
limitations on the quality specification of gas to be received at a
Receipt Point unless the Minister otherwise approves.
(6) The specifications referred to in sub-clause (4) are that the gas:
(a) shall contain not more than 15 milligrams of mercaptan per
standard cubic metre of gas;
(b) shall be commercially free from sand, dust, gums, gum forming
constituents, crude oil, impurities, and other objectionable
substances which may be injurious to pipelines, regulators,
meters, or other appliances, or which may interfere with its
transmission through pipelines or the commercial utilisation of
the gas by the facility user;
(c) shall not have a hydrocarbon dew point in excess of 10 degrees
Celsius at pressures between 1,000 kPag and 10,000 kPag;
(d) shall not contain more than 7 milligrams of hydrogen sulphide per
standard cubic metre;
(e) shall not contain more than 50 milligrams of total sulphur per
standard cubic metre;
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(f) shall not contain more than 3% by volume of carbon dioxide;
(g) shall not contain more than 65 milligrams of water vapour per
standard cubic metre;
(h) shall have a temperature between 10 and 50 degrees Celsius at the
point of measurement;
(i) shall be as free of oxygen as it can be kept and shall not in any
event contain more than two-tenths of 1% by volume of oxygen;
(j) shall not contain more than 6% by volume of inert gases
(including carbon dioxide)provided that if the gas contains more
than 4.0% by volume of inerts, then the gas shall have a Gross
Heating Value of not less than 37.9 MJ per standard cubic metre
of gas and not more than 42.3 MJ per standard cubic metre of gas;
and if the gas contains less than or equal to 4.0% by volume of
inerts then the gas shall have a Gross Heating Value of not less
than 35 MJ per standard cubic metre of gas and not more than 43
MJ per standard cubic metre of gas;
(k) shall have a Wobbe Index not less than 47 and not more than 52.
(7) An access provider is entitled to recover from an applicable facility
user or a group of applicable facility users (in the proportion
agreed) the costs of:
(a) constructing capital improvements for additional Receipt Points
or Delivery Points or constructing capital improvements to
increase or decrease capacity at existing Receipt Points or
Delivery Points, as specifically required to deliver gas to or
receive gas from that facility user or group of facility users;
and
(b) operating and maintaining the capital improvements referred to in
paragraph (a).
4.15 NEW TRANSPORTATION SERVICES
(1) A proposed facility user and the facility owner may negotiate an
access agreement for an alternative form of gas transportation service
to a Firm Forward Haul Service, Backhaul Service or an As Available
Service ("NEW SERVICE"), but a New Service may only be provided if the
New Service conditions have been approved or decided by the Minister.
If a request for approval of the New Service conditions is submitted
to the Minister, the facility owner must, within a reasonable period
of time after being requested by the Minister, give the Minister
details of:
(a) the New Service which the facility owner desires to provide or
which the proposed facility user has requested; and
(b) the Maximum Tariff for the New Service which may be charged by
the facility owner and other conditions for the New Service
("PROPOSED NEW SERVICE CONDITIONS").
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(2) The Minister may approve, reject or suggest modifications to the
Proposed New Service Conditions or decide on other New Service
conditions, subject to sub-clauses (3) and (6). In making that
decision, the Minister must consider the relevant matters set out in
section 112(2) of the Act.
(3) If the Minister proposes to reject the Proposed New Service Conditions
or to suggest modifications to them or to decide on other New Service
conditions , the Minister shall give the facility owner an explanation
of the Minister's proposed action and provide the facility owner and
other interested parties a reasonable opportunity to comment. Within
a reasonable amount of time, the Minister shall notify the facility
owner and other interested parties of the Minister's proposed decision
regarding the Proposed New Service Conditions or other New Service
conditions. If the proposed decision is not acceptable to the
facility owner, the facility owner shall so notify the Minister within
30 days after receipt of the Minister's proposed decision. Within 30
days thereafter the Minister must establish or cause to be established
a Petroleum Advisory Board under Section 8 of the Act.
(4) The Petroleum Advisory Board established by the Minister shall be made
up of 3 individuals who are appointed by the Minister in consultation
with the facility owner and any proposed facility user who has
requested the New Service. The costs of the Petroleum Advisory Board
shall be borne by the facility owner and such proposed facility user
(if any) in equal shares. The Petroleum Advisory Board shall advise
the Minister as to whether it considers that there is a genuine demand
for the New Service and whether the proposed decision by the Minister
is fair and reasonable having regard to the relevant matters in
Section 112(2) of the Act.
(5) The Petroleum Advisory Board shall convey the results of its
considerations to the Minister, the facility owner and any proposed
facility user who has requested the New Service.
(6) Before making his final decision on New Service conditions, the
Minister must consider the advice of the Petroleum Advisory Board
given under sub-clause (5) but shall not in any case be bound to
follow that advice.
(7) The Minister must notify the New Service conditions approved or
decided by the Minister under this clause by Gazette notice.
(8) On notification in the Gazette, the New Service conditions approved or
decided by the Minister will be deemed to be included in and to form
part of this Indicative Tariff Schedule.
4.16 PUBLICATION OF COMPILED SCHEDULE
The Minister may at any time and from time to time publish the Access
Principles, as amended pursuant to the terms thereof, by Gazette
notice.
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SCHEDULE 5
LICENCE
QUEENSLAND
PETROLEUM ACT 1923
VOLUME
FOLIO
RECITALS
A. Pursuant to the provisions of the Petroleum Act 1923, PGT Australia Pty.
Limited ACN 072 948 451 (hereinafter called "THE LICENSEE"), has made
application to me for a Licence for the construction and operation of the
Pipeline.
B. I have consented to grant a Licence to the Licensee for the purpose of the
construction of the Pipeline and the conveyance thereby of gaseous
petroleum and associated liquid petroleum as defined in the Act under and
subject to the terms and conditions of this Licence and to the provisions
of the Act.
GRANT OF LICENCE
In consideration of the yearly licence fee and the terms conditions and
agreements contained in this Licence to be paid observed and performed by the
Licensee I hereby grant to the Licensee full license and authority on and from
the date of this Licence under and subject to the provisions of the Act and on
the terms and conditions of this Licence to construct and operate at the sole
cost of the Licensee the Pipeline for the conveyance thereby of gaseous
petroleum and associated liquid petroleum as defined in the Act.
CONDITIONS OF LICENCE
1. DEFINITIONS AND INTERPRETATION
1.1 In this Licence unless the context otherwise indicates or requires, the
terms used shall have the meanings respectively assigned to them by
Section 2 of the Act and the following terms shall have and include the
meanings set against them respectively:-
"ACCESS AGREEMENT" has the meaning given to that term in the Act.
"ACCESS PRINCIPLES" has the meaning given to that term in the Act.
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"ACT" means the Petroleum Act 1923 and any Act amending or in substitution
for this Act and all Proclamations and Regulations issued or made
thereunder.
"BUYER" means a person who contracts under a Gas Transportation Agreement
for the right to gas transportation services using the Pipeline.
"CORPORATION SOLE" has the meaning given to that term in the Act.
"CUBIC METRE" - with respect to oil, gas or water produced with the oil and
gas, the amount of oil, gas or water in one cubic metre of space at an
absolute pressure of 101.325 kilopascals and at a temperature of 15 degrees
Celsius.
"DEPARTMENT" means the Department of Mines and Energy or such other
Department of the Government of the State of Queensland responsible for the
administration of the Act from time to time.
"EIS" means the following documents:
(a) Denison Trough Gas Project Environmental Assessment Study Volumes 1
and 2;
(b) State Gas Pipeline Project Environmental Assessment Study Addendum;
and
(c) State Gas Pipeline - Rockhampton Branch Line Impact Assessment Study.
"EMERGENCY RESPONSE MANUAL" or "MANUAL" means the manual referred to in
clause 4.6.
"GAS TRANSPORTATION AGREEMENT" means an agreement for the supply of gas
transportation services using the Pipeline to which the Licensee is or
becomes a party.
"MAOP" means maximum allowable operating pressure as determined in
accordance with Australian Standard 2885 "SAA Pipelines - Gas and Liquid
Petroleum" current at the date of this Licence.
"MINISTER" means the minister of the Government of the State of Queensland
from time to time vested with responsibility for the administration of the
Act and includes where the context permits or allows a nominee or nominees
of the Minister and a person or persons authorised by the Minister for a
particular purpose.
"NOMINAL CAPACITY" has the meaning given to that term in the Act.
"OPERATOR" means the operator of the Pipeline.
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"PIPELINE" means:-
(a) the existing pipeline comprised of:
(i) the pipeline from Wallumbilla (longitude E 149DEG. 11' 06"
latitude S 26DEG. 41' 41") to Gladstone City Gate
(longitude E 151DEG. 9' 11" latitude S 23DEG. 49' 62");
(ii) the pipeline from Gladstone City Gate (longitude E 151DEG.
9' 11" latitude S 23DEG. 49' 62") to Queensland Alumina
Limited's refinery at Gladstone (longitude E 151DEG. 17'
10" latitude S 23DEG. 51' 54.6"); and
(iii) the Rockhampton branch pipeline from Larcom Creek (longitude
E 51DEG. 00' 50.3" latitude S 23DEG. 53' 0.4") to
Rockhampton City Gate (longitude E 150DEG. 30' 3.9"
latitude S 23DEG. 19' 7"),
together with all ancillary equipment and works connected therewith
but excluding all gas treatment and compression facilities at inlets
and outlets to the pipeline; and
(b) any variations to such pipeline pursuant to Clause 4.7 or which are
required or permitted by the Act.
"PIPELINE CROSSING" means a crossing made by the Pipeline on, over or under
any railway, tramway or road and in, on, over, through or across any
waterway (including any foreshore or land referred to in subsection 11 of
Section 78 of the Act).
"PIPELINE LOCATION BOOK" means:-
(a) the Wallumbilla to Gladstone Pipeline Location Books 1 and 2; and
(b) the Gladstone to Rockhampton Pipeline Location Book.
"REVIEW EVENT" means:
(a) the day being twenty 20 years from the date of this Licence; and
(b) such other events as the Licensee and the Minister may agree.
"SPECIFIED CONFIGURATION" means the configuration for the Pipeline
specified in Schedule 1.
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"STATE MINING ENGINEER" means the officer(s) of the Department from time to
time holding the position or exercising the duties and responsibilities of
the State Mining Engineer.
1.2 Any changes, revisions, amendments or alterations made to any code or
standard referred to in this Licence which:
(a) relate to operational matters shall apply to the Pipeline; or
(b) relate to non-operational matters shall apply only to additions or
alterations made to the Pipeline,
after the date of such change, revision, amendment or alteration.
1.3 A reference to the Licensee includes its successors and permitted assigns.
2. LEGISLATION
This Licence shall be subject to the provisions of all applicable
legislation.
3. USE OF PIPELINE
The Pipeline shall be used by the Licensee for the conveyance thereby of
gaseous petroleum as defined in the Act and associated liquid petroleum and
for no other purpose whatsoever unless the Minister, with the approval of
the Governor in Council, shall otherwise approve.
4. OPERATION
4.1 The Licensee shall from the date of this Licence and until this Licence is
terminated:
(a) operate and maintain the Pipeline or cause the Pipeline to be operated
and maintained in accordance with Australian Standard 2885, all
applicable legislation and regulations and otherwise in accordance
with industry best practices; and
(b) not without the prior written permission of the Minister discontinue
the operation of the Pipeline except to effect repairs or for
maintenance or other reason consistent with accepted practice in the
operation of pipelines.
4.2 The Licensee shall not allow a third party to be the Operator without the
prior written consent of the Minister.
4.3 The obligations of the Licensee under this Licence shall not be affected if
a third party is permitted to be the Operator.
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4.4 The measurement, monitoring and recording of the throughput of the Pipeline
shall be conducted to standards and accuracy conforming with normal
industry practice.
4.5 A control system for the operation and maintenance of the Pipeline,
including facilities for the remote control of mainline valves sufficient
for the isolation of Pipeline sections in the event of an emergency, shall
be installed and operative at all times.
4.6 The Pipeline shall be operated in accordance with an Emergency Response
Manual. The Manual shall be developed by the Licensee within 6 months from
the date of this Licence and shall be amended as the need arises.
The Manual shall be consistent with accepted industry practices and
reasonably acceptable to the Minister and shall set out the procedures to
be followed and actions to be taken, and shall identify the persons to be
responsible for following these procedures and taking these actions in the
event of an emergency arising during the Pipeline operations by reason of -
- the escape or ignition of petroleum;
- serious injury to a person;
- a vehicle or aircraft failing to arrive at its destination when it is
expected to arrive, unless a report has been made as to the reason for
the non-arrival;
- a vehicle or aircraft sending a distress signal;
- a person lost; or
- any other emergency associated with the operations.
4.7 The Licensee shall, subject to the requirements of Buyers, progressively
increase the capacity of the Pipeline up to the Nominal Capacity.
4.8 No variations to the Pipeline pursuant to clause 4.7 or which are required
or permitted under the Act shall be brought into operation by the Licensee
before it has been satisfactorily inspected and tested in accordance with
Australian Standard 2885. The Licensee shall submit to the State Mining
Engineer a detailed testing programme prior to the commencement of any
tests. A full report on the results of such tests shall be submitted to
the State Mining Engineer not more than twenty one (21) days after the
completion of such tests.
4.9 The MAOP for the Pipeline shall be at all times a minimum of 10.2 MPa with
the maximum operating temperature not exceeding the Pipeline material or
coating specifications.
5. INSPECTION
5.1 The Licensee shall permit an inspector appointed by the Minister to inspect
the Pipeline or any section thereof at all reasonable times in order to
ensure that the provisions, terms and conditions of this Licence are being
complied with by the Licensee its agents and servants, and shall render
such assistance and provide such
<PAGE>
information to an inspector as he may reasonably require with respect to
any matter or thing concerning the operation of the Pipeline.
5.2 The Minister shall not be liable for any loss, damage or personal injury
caused by any inspector appointed by the Minister or any environmental
officer of the Department during any inspection pursuant to clauses 5.1 or
8.2.
6. CORROSION
6.1 The Pipeline shall be effectively protected against internal and external
corrosion. Details of the corrosion prevention and monitoring systems used
and installed shall be submitted to the State Mining Engineer upon request.
6.2 The Licensee shall follow procedures that will allow accurate assessment of
any corrosion taking place within the Pipeline and shall keep records of
all readings and results which shall be made available in a readily
readable form for inspection when required.
6.3 Internal inspection of the Pipeline by a device which is able to accurately
indicate anomalies in pipe wall thickness throughout the full length of the
Pipeline or other method of inspection as approved by the State Mining
Engineer shall be carried out within five years of the date of this Licence
and thereafter at intervals not exceeding five years. If operational
measurements indicate concern about the level of corrosion protection an
inspection shall be carried out as soon as reasonably practicable
thereafter but in any case within two years thereafter or as directed by
the State Mining Engineer.
6.4 Should corrosion be detected the Licensee shall take adequate measures to
prevent further corrosion and shall ensure that the MAOP is maintained.
7. PIPELINE ROUTE
7.1 The following documents have been accepted by the State Mining Engineer and
registered in the proper office of the Department:
(a) (i) A key plan approved by the Chief Surveyor of the Department and
drawn to a scale of not less than 1:250 000 showing the actual
route of the Pipeline as laid.
(ii) A series of plans included in the Pipeline Location Book giving a
description of the lands, easements, licences and rights of way
and permits acquired or to be acquired for the purposes of the
Pipeline and of all Pipeline Crossings included in such actual
route. Each plan has been indexed and referenced to the key plan
and shows the location of the Pipeline with respect to property
boundaries.
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This Licence is restricted to the lands, easements, licences, rights
of way, permits and Pipeline Crossings hereinbefore in this clause
referred to; and
(b) A plan and longitudinal section to an appropriate scale, showing the
location of the Pipeline in relation to roads, railways, rivers and
streams, fences, property boundaries, underground pipes and cables,
electricity transmission lines and other structures adjacent to the
Pipeline and showing the exact location of compressor stations,
storage tanks, treatment facilities, metering arrangements,
communication towers, valves and scraper traps along the Pipeline.
7.2 The Licensee shall as soon as reasonably practicable after the date of this
Licence and at its own expense acquire all lands, easements, licences,
rights of way and permits referred to in Clause 7.1(a)(ii) which have not
been acquired at the date of this Licence and do all other things as may be
required of the Licensee in respect of the land to which this Licence
extends whether under the Act or otherwise.
8. ENVIRONMENT
8.1 The Licensee shall take all reasonable care to protect flora and fauna and
shall comply with any specific requirements as directed by the State Mining
Engineer from time to time. Top soil, where removed or disturbed, is to be
replaced and precautions are to be taken to prevent erosion of the soil
surface and the spreading of seeds of noxious weeds.
8.2 The Pipeline route or any section thereof may be inspected from time to
time by an environmental officer of the Department.
8.3 The Licensee shall comply with:
(a) the APEA Code of Environmental Practice - Onshore; and
(b) the commitments to environmental management outlined in the EIS to the
extent that they relate to the Pipeline, its operation or any land
affected by or in the vicinity of the Pipeline.
9. TERM OF LICENCE
This Licence shall be for a period commencing on the date of this Licence
and expiring forty (40) years from the date of this Licence.
10. LICENCE FEE
10.1 The Licensee shall pay an annual licence fee in advance to the Minister
within 14 days of the date of this Licence and on each anniversary of the
date of this Licence occurring during the term of this Licence.
<PAGE>
-77-
10.2 The annual licence fee payable in respect of the first year of the Licence
shall be $63,000.
10.3 The annual licence fee payable in respect of each subsequent year of this
Licence shall be determined as follows:
--- ---- ----- -----
| | --- ----- | |
| | | C - C | | | |
| | | | | 2 1 | | | |
F = F x | 1 + | 0.75 x | C ---------- |
1 | | | | | 1 --- ----- | |
---- ---- ----- -----
Where:
"F" = the annual licence fee in dollars payable in respect of the
relevant year of this Licence for which the licence fee is
to be calculated and determined;
"F(1)" = the licence fee in dollars payable in respect of the
immediately preceding year of this Licence.
"C(1)" = the Index Number most recently published as at the date of
commencement of the year of this Licence immediately
preceding the year for which the licence fee is to be
calculated and determined.
"C(2)" = the Index Number most recently published as at the date of
commencement of the relevant year of this Licence for which
the licence fee is to be calculated and determined.
PROVIDED ALWAYS that the annual licence fee payable in respect of any year
of this Licence shall not be less than the annual licence fee properly
payable under the terms of this Licence in respect of the immediately
preceding year of this Licence.
The words "INDEX NUMBER" mean the All Groups Consumer Price Index for the
city of Brisbane published from time to time by the Australia Bureau of
Statistics. In the event that the All Groups Consumer Price Index for the
city of Brisbane shall be discontinued or modified the Minister shall
specify a comparable consumer price index published by the Australian
Bureau of Statistics in substitution therefor.
10.4 A reference to a year of this Licence is a reference to a calendar year
commencing on the date of this Licence or any anniversary of such date.
<PAGE>
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10.5 The licence fees shall be payable to the Minister at the office of the
Department situated at 61 Mary Street, Brisbane, or such other place as may
be directed in writing.
11. ACCESS PRINCIPLES
11.1 The Access Principles for the Pipeline shall be reviewed in accordance with
the Act upon a Review Event happening.
11.2 Subject to the Act, the Licensee shall ensure that all Access Agreements in
relation to the Pipeline entered into after this Licence is granted are not
inconsistent with the Access Principles for the Pipeline from time to time.
12. INSURANCE
12.1 The Licensee shall effect and maintain all insurances in relation to the
operation of the Pipeline and for such amounts as the Minister considers
reasonably necessary including without limitation the following insurances:
(a) business interruption insurance;
(b) public liability insurance;
(c) insurance in respect of any damage to the Pipeline.
12.2 The Licensee shall provide to the Minister evidence of such insurances
within 7 days of being requested to do so.
12.3 Any insurance moneys received in relation to damage to the Pipeline shall
be used in making good the damage.
13. FINANCIAL RECORDS
The Licensee shall in accordance with the Act supply all information to the
Minister which it is required to under the Act.
14. OWNERSHIP & ASSIGNMENT
14.1 The Licensee must not directly or indirectly transfer, assign, lease,
sublease, mortgage, sub-license or create a trust in relation to this
Licence or any land or easement or right of way over land acquired for use
for or held in connection with the Pipeline without the prior written
consent of the Minister.
14.2 Any change in the ultimate legal or beneficial ownership of any share in
the Licensee shall be deemed to be an assignment under this clause except
where the change has occurred due to the trading of shares in the Licensee
or any holding company of the Licensee on a recognised stock exchange.
<PAGE>
-79-
15. CONTRACTS
15.1 All Gas Transportation Agreements entered into after the date of this
Licence shall be in accordance with the Act and other relevant legislation.
15.2 The Licensee shall supply to the Minister a copy of each Gas Transportation
Agreement entered into by the Licensee and all amendments thereto forthwith
upon a Gas Transportation Agreement being executed or an amendment being
made.
16. FORCE MAJEURE
16.1 If the Licensee, by reason of an event of force majeure, is wholly or
partially unable to perform its obligations under this Licence it shall
give to the Minister prompt written notice of the event of force majeure
with reasonably full particulars of the event, whereupon the obligations of
the Licensee to the extent that they are affected by the event of force
majeure shall be suspended for so long as the event renders the Licensee
unable to so perform its obligations.
16.2 The Licensee shall take all reasonable steps to avoid or remove the force
majeure condition and resume performance of its obligations under this
Licence.
16.3 The term "event of force majeure" means an act of God, industrial
disturbance, act of public enemy, war, blockade, public riot, lightning,
earthquake, fire, storm, flood, and any other event whether of the kind
enumerated above or otherwise which is not within the control of the
Licensee.
16.4 If an event or events of force majeure delay the Licensee's performance
hereunder for a period or periods which in aggregate exceed 2 years then
the Minister may terminate this Licence by notice in writing to the
Licensee.
17. TERMINATION OF LICENCE
17.1 If the Licensee breaches any condition of this Licence, whether express or
implied, or any condition of a Gas Transportation Agreement executed prior
to the date of this Licence and the Minister notifies the Licensee of such
breach then the Licensee must remedy the breach within three calendar
months after the giving of such notice by the Minister or, if such remedy
shall reasonably require more than three calendar months to complete,
commence the remedy of such breach within a reasonable time (not exceeding
thirty days after the giving of such notice by the Minister) and continue
to expeditiously pursue the remedy of such breach with all due diligence.
If the Licensee fails to do so the Minister may by notice in writing to the
Licensee terminate this Licence.
17.2 If the Minister terminates this Licence, whether pursuant to clause 17.1 or
otherwise, or this Licence is surrendered by the Licensee (other than where
the surrender is to facilitate the grant to the Licensee of a new licence
in respect of the
<PAGE>
-80-
Pipeline), the Minister may notify the Licensee in writing that the
Corporation Sole will take over the Pipeline on and from the date specified
in such notice and on and from such date:
(a) ownership of the Pipeline and the benefit of all easements, licences,
rights of way and permits relating to the Pipeline shall vest in the
Corporation Sole and the Licensee shall, as required by the
Corporation Sole, take such action as is necessary to transfer such
property to the Corporation Sole;
(b) the Licensee shall supply to the Corporation Sole all documents and
records relating to the operation and use of the Pipeline;
(c) the Corporation Sole shall be entitled at the option of the
Corporation Sole to assume the rights and obligations of the Licensee
under any Gas Transportation Agreement and the Licensee shall, as soon
as practicable after being notified of the exercise of such option,
take such action as is necessary to assign those rights and
obligations to the Corporation Sole; and
(d) the Licensee will have no claim for compensation or any other claim
against the Corporation Sole or the Minister.
17.3 The Licensee must ensure that all contracts referred to in clause 17.2(c)
make provision for the Corporation Sole to take over such contracts in the
circumstances contemplated by that clause.
18. REMOVAL OF EQUIPMENT AND DECOMMISSIONING OF PIPELINE
If this Licence has expired by effluxion of time and has not been extended
or renewed or this Licence has been terminated or surrendered other than to
facilitate the grant to the Licensee of a new licence in respect of the
Pipeline then:
(a) the Minister may direct the Licensee to remove all surface equipment
associated with the Pipeline within a period of six (6) months or such
greater period as determined by the Minister. If the Licensee fails
to remove the equipment within the specified time all right, title and
interest in the equipment will vest in the Corporation Sole. The
Licensee shall, following removal of such surface equipment, to the
satisfaction of the Minister progressively rehabilitate the surface of
the specified area, as nearly as may be to its state and condition
prior to the construction of the Pipeline or as may otherwise be
agreed;
(b) the Minister may direct the Licensee to, decommission sub-surface
pipelines and equipment in accordance with the Australian Standard
2885 "SAA Pipelines - Gas and Liquid Petroleum" or in a manner
approved by the State Mining Engineer. The Licensee shall, following
decommissioning of such sub-surface equipment, to the satisfaction of
the
<PAGE>
-81-
Minister progressively rehabilitate the surface of the specified area,
as nearly as may be to its state and condition prior to the
construction of the Pipeline or as may otherwise be agreed; and
(c) the Minister may direct the Licensee at the expense of the Licensee to
transfer to the Corporation Sole, or surrender, all easements,
licences, rights of way and permits relating to the Pipeline within a
period of six (6) months or such greater period as determined by the
Minister.
19. NOTICES
Any notice, certificate, report or other writing authorised or required by
this Licence to be given or sent shall be deemed to have been duly given or
sent by the Minister if delivered in writing personally or forwarded by
prepaid post to each of the holders of the Licence at the registered office
or principal office in the said State of each such holder and by the
Licensee if signed by each of the holders of the Licence by the authorised
officer of each such holder and delivered in writing personally or
forwarded by prepaid post to the Minister at his office in Brisbane in the
said State and any such notice consent report or writing sent by prepaid
post shall be deemed to have been delivered on the day on which it would be
delivered in the ordinary course of post.
20. PRESERVATION OF ACCRUED RIGHTS
The expiration or termination of this Licence:
(a) shall not affect the provisions expressed or implied to operate or
have effect after such expiration or determination; and
(b) shall be without prejudice to any right of action already accrued to
the Minister in respect of any breach of this Licence by the Licensee.
21. REVIEW OF LICENCE CONDITIONS
21.1 This clause applies if the Review Event specified in paragraph (a) of the
definition of that term happens.
21.2 Within 3 months after the Review Event happens, the Minister must review
the terms and conditions of this Licence and advise the Licensee of any
proposed variations to such terms and conditions.
21.3 The Minister and the Licensee shall confer with a view to agreeing on the
variations (if any) to be made to such terms and conditions of this Licence
as soon as practicable after the Minister has given advice to the Licensee
in accordance with clause 21.2.
<PAGE>
-82-
21.4 If, within 6 months after the Review Event happens, the Minister and the
Licensee have not agreed on the variations (if any) to be made to such
terms and conditions of this Licence, such terms and conditions shall be
varied as notified in writing by the Minister to the Licensee and such
variations shall be deemed to have been made upon such notification being
given.
21.5 The Minister may, where he considers it appropriate, issue to the Licensee
a new licence document which contains the terms and conditions of this
Licence as varied in accordance with this clause.
22. VARIATION OF LICENCE
Except as provided in clause 21, the provisions of this Licence may be
varied from time to time by the Minister with the consent of the Licensee.
Any such variation affecting the route of the Pipeline shall be notified in
the Gazette and shall take effect upon the publication of such
notification.
23. STAMP DUTY
The Licensee shall pay all stamp duty on this Licence and any document
executed under it.
24. INVALIDITY
If any term, clause or provision of this Licence shall be or be deemed or
judged to be invalid for any reason, such invalidity shall not affect the
validity or operation of any other term, clause or provision of this
Licence except to the extent necessary to give effect to such invalidity.
25. EXCLUSIVITY
The grant of this Licence shall not preclude the grant of any other
pipeline licences which may detract from the benefit of this Licence.
EXECUTED on the day of 1996
by the Minister for Mines and Energy of the State of Queensland
Minister
-----------------------------
Witness
-----------------------------
<PAGE>
-83-
SCHEDULE 1
SPECIFIED CONFIGURATION
The Specified Configuration for the Pipeline consists of the following:
PIPELINE
A single high pressure natural gas pipeline consisting of:
514.3km of 323.9mm outside diameter pipe, having a maximum allowable
operating pressure of 10.2 MPa, extending from a point near Wallumbilla
(Kilometre-Post O-KP) in a northerly and easterly direction to a pressure
regulating station near Mt Larcom, adjacent to the city of Gladstone; and
16.1km of 323.9mm outside diameter pipe, having a maximum operating
pressure of 5.1 MPa extending from the Mt Larcom pressure regulating
station to the processing plant owned by QAL near Gladstone (the
"MAINLINE"); and
96.7km of 219.1mm outside diameter pipe having a maximum allowable pressure
of 10.2 MPa extending from the Mainline at KP 497.8 near Larcom Creek to
the Parkhurst Meter Station near Rockhampton (the "ROCKHAMPTON EXTENSION").
RECEIPT AND DELIVERY POINT METER STATIONS
MAINLINE
Wallumbilla (KP 0.0)
Westgrove (KP 154.0)
Rolleston (KP 243.4)
Moura (km-post 360.71)
ICI Operations Meter (KP 516.3)
Gas Corp. of Queensland Gladstone Meter #1 (KP 525.6)
Gas Corp. of Queensland Gladstone Meter #2 (KP 527.9)
Boyne Smelter Meter (KP 529.4)
QAL Meter (KP 530.4)
Other meter stations as may be required to provide service up to the
Nominal Capacity of the Pipeline.
ROCKHAMPTON EXTENSION
Parkhurst Meter (KP R-96.7)
Other meter stations as may be required to provide service up to the
Nominal Capacity of the Pipeline.
<PAGE>
-84-
COMPRESSOR STATIONS
MAINLINE MAXIMUM POWER
SITE RATED KW
Gooimbah (KP 94.0) 4,850
Westgrove (KP 154.0) 3,360
Rolleston (KP 243.4) 3,360
Oombabeer (KP 318.0) 4,850
Banana (KP 386.4) 4,850
Bell Creek (KP 450.0) 9,110
ROCKHAMPTON EXTENSION
Bajool (KP R-50.7) 2,240
The maximum delivery capacity or Nominal Capacity of the Mainline under the
Specified Configuration is approximately 50 PJ per year (137 TJ per day). The
maximum delivery capacity or Nominal Capacity of the Rockhampton Extension under
the Specified Configuration is approximately 14 PJ per year (38 GJ per day).
ENDORSEMENTS
<PAGE>
-85-
SCHEDULE 6
DEED OF COVENANT
THIS DEED is made on the day of 1996
BETWEEN THE SECRETARY FOR MINES the corporate entity established by the
Petroleum Act 1923, Section 54A and preserved and continued in
existence as a corporation sole constituted by the Minister under
Section 11 of the Petroleum Act 1923 ("ASSIGNOR")
AND [***] (ACN *** *** ***) of [***]
("CUSTOMER")
AND [***] (ACN *** *** ***) of [***]
("ASSIGNEE")
WHEREAS
A The Assignor and the Customer are parties to the Contract.
B The Assignor has agreed to sell the Pipeline to the Assignee and to assign
the Contract to the Assignee.
OPERATIVE PROVISIONS
1
1.1 In the Deed:
"ASSIGNMENT DATE" means [****].
"CONTRACT" means the Gas Transportation Agreement dated [****] made between
the Assignor and the Customer in respect of the transportation of gas
through the Pipeline.
"CONTRACT PROVISIONS" means all terms, covenants, conditions, provisions,
stipulations, restrictions, obligations, powers, rights, remedies or like
provisions of
<PAGE>
-86-
the Contract which are to be observed and/or performed by the Assignor,
whether express or implied, whether positive or negative.
"OBLIGATIONS" means all the acts, duties, responsibilities, undertakings
and obligations to be performed or discharged by the Assignor under the
Contract.
"PIPELINE" has the meaning given to that term in the Contract.
1.2 Unless the contrary intention appears in this Deed a reference to:
(a) a clause is to a clause in this Deed;
(b) the singular includes the plural and vice versa;
(c) any gender includes all other genders;
(d) a person includes a corporation or an association being incorporated
or not and vice versa;
(e) clause headings appearing in this Deed are inserted for convenience of
reference and shall not affect the construction of this Deed.
2 ASSIGNMENT OF RIGHTS INTERESTS AND OBLIGATIONS
The Assignor hereby transfers and assigns to the Assignee absolutely as and
from the Assignment Date (notwithstanding the date hereof) and the Assignee
hereby accepts the transfer and assignment of all the Assignor's right,
title, interest, benefits and obligations in and under the Contract.
3 COVENANT BY ASSIGNEE
The Assignee hereby covenants in favour of each of the Assignor and the
Customer that on and from the Assignment Date it shall be bound by and
shall observe and perform the Contract and the Contract Provisions and
shall discharge and perform the Obligations in accordance with the Contract
as if it had originally been a party to the Contract in the place of the
Assignor.
4 COVENANTS BY CUSTOMER
4.1 The Customer covenants and agrees with the Assignee to be bound by and to
observe and perform its obligations under the Contract as if the Assignee
had originally been a party thereto in place of the Assignor.
4.2 The Customer acknowledges and agrees that all rights, benefits and
entitlements of the Assignor under the Contract shall on and from the
Assignment Date be the rights, benefits and entitlements of the Assignee.
<PAGE>
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5 APPLICABLE LAW
The interpretation and construction of this Deed shall be governed and
determined in accordance with the laws of the State of Queensland.
6 COSTS
All stamp duty payable on this Deed shall be borne by the Assignee but each
party shall bear their own legal costs incurred in the drawing, negotiation
and execution of this Deed.
7 COUNTERPARTS
This Deed may be signed in any number of counterparts. Any single
counterpart or a set of counterparts signed in either case by all the
parties hereto shall constitute a full and original Deed for all purposes.
<PAGE>
-88-
EXECUTED AS A DEED
THE OFFICIAL SEAL of )
THE SECRETARY FOR MINES )
was hereunto affixed by )
the Honourable Thomas John George Gilmore )
in the presence of: )
THE COMMON SEAL of )
[****] )
was hereunto affixed )
in accordance with its Articles )
of Association in the )
presence of: )
THE COMMON SEAL of )
[****] )
was hereunto affixed )
in accordance with its Articles )
of Association in the )
presence of: )
<PAGE>
-89-
SCHEDULE 7
LANDOWNER NOTICE
[LETTERHEAD OF PURCHASER]
[NAME AND ADDRESS OF LANDOWNER]
RE: STATE GAS PIPELINE
The State Gas Pipeline traverses land which is occupied by you.
The Pipeline has now been sold to [NAME OF PURCHASER] and the Pipeline has been
renamed as [NEW NAME OF PIPELINE].
If you have any queries with respect to the Pipeline or its operations please
contact:
[NAME OF CONTACT]
[ADDRESS OF CONTACT]
[TELEPHONE NUMBER OF CONTACT]
Yours faithfully
<PAGE>
-90-
SCHEDULE 8
BRIDGE GAS EMPLOYEES
BRIDGE GAS EMPLOYEES
<TABLE>
<CAPTION>
NAME JOB TITLE TOTAL DATE OF ACCRUED EMPLOYEE ENTITLEMENTS (AS AT 1.1.96:
REMUNERATION COMMENCEMENT
PACKAGE (PER OF EMPLOYMENT
ANNUM AS AT
1.1.96)
ANNUAL LEAVE LONG SERVICE
LEAVE
<S> <C> <C> <C> <C>
Bruce McCaul Manager $87,054.00 1.8.89 $11,703.27 $9,158.39
Rosemary Office $41,200.00 1.9.89 $1,918.86 $4,291.69
Frederikson Co-Ordinator
Christine Ward Secretary $27,000.00 2.10.95 $303.03 $74.98
Rudi Hoogsteyns Pipeline $66,000.00 25.9.95 $1,345.52 $275.04
Engineer
Geoff Harrison Field $45,200.00 29.10.90 $1,813.51 $3,892.24
Supervisor
Bill Van Harten Pipeline $34,500.00 1.9.89 $1,805.85 $3,593.77
Operator
Russell Cooper Pipeline $35,400.00 4.1.94 $2,557.08 $1,179.98
Operator
Michael Gander Pipeline $34,500.00 3.6.91 $1,929.20 $2,587.50
Operator
John Ibell Pipeline $36,500.00 17.2.92 $3,137.37 $2,281.25
<PAGE>
-91-
Operator
Andrew Johnson Pipeline $36,100.00 5.3.91 $1,731.57 $2,807.75
Operator
Eric Timm Pipeline $36,000.00 20.5.91 $1,565.54 $2,700.00
Operator
James Tucker Pipeline $35,400.00 13.7.92 $2,906.66 $2,015.83
Operator
Mark McGuire Pipeline $34,500.00 2.10.89 $3,172.64 $3,545.80
Operator
TOTAL $549,354.00 $35,890.10 $38,404.22
</TABLE>
SCHEDULE 9
DEED OF TERMINATION AND RELEASE
This Deed is made 1996
BETWEEN ("CUSTOMER")
AND THE SECRETARY FOR MINES, the corporate entity established by the Petroleum
Act 1923, Section 54A, and preserved and continued in existence as a
corporation sole constituted by the Minister under Section 11 of the
Petroleum Act 1923 (the "SECRETARY FOR MINES").
WHEREAS
A The Secretary for Mines and the Customer are parties to the Contract.
B The Secretary for Mines has agreed pursuant to a Sale Agreement to sell the
Pipeline and associated assets to PGT Australia Pty Limited (the
"PURCHASER").
OPERATIVE PROVISIONS
1 DEFINITIONS
In this Deed,
"CONTRACT" means the Gas Transportation Agreement dated made
between the Secretary for Mines and the Customer in respect of the
transportation of gas through the Pipeline.
"CLOSING DATE" means the date of completion of the sale of the Pipeline and
associated assets by the Secretary for Mines to the Purchaser.
"PIPELINE" has the meaning given to that term in the Contract.
<PAGE>
-92-
2 TERMINATION
The parties agree that the Contract is terminated on the Closing Date but
without prejudice to the rights of the Customer or the Secretary for Mines
accrued prior to such termination.
3 RELEASE
Each party releases the other party from all obligations and liabilities of
that party under the Contract which relate to the period on and after the
Closing Date.
4 CONDITION
This Deed is conditional on completion of the sale of the Pipeline and
associated assets to the Purchaser on or before 30 June 1996 or other later
date agreed between the Secretary for Mines and the Purchaser. This Deed
shall automatically terminate on that date if that condition is not
satisfied by that date unless the parties agree otherwise. The Secretary
for Mines shall notify the Customer when that condition is satisfied.
5 APPLICABLE LAW
The interpretation and construction of this Deed shall be governed and
determined in accordance with the laws of the State of Queensland.
6 COUNTERPARTS
This Deed may be signed in any number of counterparts. Any single
counterpart or a set of counterparts signed in either case by all the
parties shall constitute a full and original Deed for all purposes.
EXECUTED AS A DEED
THE COMMON SEAL of )
[****] )
was duly affixed )
THE OFFICIAL SEAL of )
THE SECRETARY FOR MINE )
was hereunto affixed by the )
Honourable Thomas John George Gilmore )
in the presence of: )
<PAGE>
-93-
SCHEDULE 10
ALLOCATION OF PURCHASE PRICE
ASSET ALLOCATED PRICE ($)
Pipeline and Spares and Emergency Equipment
(but excluding buildings) 161,254.998
Buildings 334,000
Pipeline Tenure (freehold land, leases, licences,
easements, rights of way) 48,000
Brisbane Office Equipment 128,000
Gladstone Maintenance Base Lease 1
Records 1
Vehicles 235,000
<PAGE>
-94-
TOTAL PURCHASE PRICE $162,000,000
<PAGE>
EXECUTED AS AN AGREEMENT.
THE SECRETARY FOR MINES FOR THE STATE OF QUEENSLAND AUSTRALIA
PGT AUSTRALIA PTY LIMITED
/S/ EZEKIEL SOLOMON /S/ MICHAEL J. MCDANOLD
- ------------------- -----------------------
Director Director
<PAGE>
THE SECRETARY FOR MINES
"VENDOR"
and
PGT AUSTRALIA PTY. LIMITED
"PURCHASER"
----------------------------------------------
STATE GAS PIPELINE SALE AGREEMENT
----------------------------------------------
CORRS CHAMBERS WESTGARTH
SOLICITORS
Comalco Place
12 Creek Street
Brisbane Queensland 4000
AUSTRALIA
Telephone (07) 3228 9333
Facsimile (07) 3229 2844
DX 135 BRISBANE
Ref: J Kelly
COM1DOC:3407
1 DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 7
<PAGE>
-97-
CONTENTS
CLAUSE PAGE
1.3 Headings 7
2 SALE OF PIPELINE 7
2.1 Sale and Purchase of Pipeline Assets 7
2.2 Purchase Price 8
2.3 Payment of Purchase Price 8
2.4 Payment for Linepack 8
3 DEPOSIT 8
3.1 Payment of Deposit 8
3.2 Investment of Deposit 8
3.3 Interest on Termination 8
3.4 Interest on Completion 9
3.5 Forfeiture of the Deposit 9
4 CONDITIONS 9
4.1 Relevant Conditions 9
4.2 Purchaser to Make Application 10
4.3 Purchaser to Take all Reasonable Action 10
4.4 Vendor to Obtain Consent 10
4.5 Termination 10
5 COMPLETION 11
5.1 Time and Place of Completion 11
5.2 Delivery by the Purchaser 11
5.3 Delivery by the Vendor 11
5.4 Preparation and Execution of Documents 11
5.5 Passing of Title 11
5.6 Passing of Risk 11
5.7 Event of Force Majeure 11
5.8 Construction Contracts 11
6 PIPELINE TENURE 13
6.1 Acknowledgements 13
6.2 Agreement with Landowners 14
6.3 Notice to Landowners 14
6.4 Gladstone Maintenance Base 14
<PAGE>
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CONTENTS
CLAUSE PAGE
6.5 GCQ Deed 14
6.6 BHPMC Inlet Station 15
6.7 Lot 23 15
6.8 Brisbane Office 15
6.9 Native Title 17
7 TRANSPORTATION CONTRACTS 17
7.1 Assignment of Transportation Contracts 17
7.2 Purchaser to Perform Transportation Contracts 17
7.3 Deed of Covenant 18
7.4 Termination of Transportation Contracts 18
8 SPECIFIED CONTRACTS 18
8.1 Assignment of Specified Contracts 18
8.2 Non-Assignment of any Specified Contract 19
9 PROFITS AND ADJUSTMENTS 19
9.1 Profits and Expenses Before Completion 19
9.2 Profits after Completion 19
9.3 Trade Debts 19
9.4 Adjustment of Periodic Outgoings 19
9.5 Adjustment of Outgoings and Expenses 19
10 WARRANTIES BY VENDOR 20
10.1 Warranties 20
10.2 Warranties for the Benefit of the Purchaser 20
10.3 Effect of a Breach of the Warranties 20
10.4 Acknowledgment in Relation to the Warranties 20
11 WARRANTIES BY PURCHASER 21
11.1 Warranties 21
12 VENDOR'S OBLIGATIONS 22
12.1 Operation of Pipeline Pending Completion 22
12.2 Spares and Emergency Equipment 22
12.3 Q Fleet Vehicles 22
<PAGE>
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CONTENTS
CLAUSE PAGE
13 PURCHASER'S OBLIGATIONS 22
13.1 Records 22
13.2 Valves 23
13.3 Castle Hope Dam 23
13.4 Name of Pipeline 24
13.5 Project Documents 24
13.6 Bridge Gas Employees 25
13.7 Accrued Employee Entitlements - SGPU Employees 25
13.8 Accrued Employee Entitlements - Bridge Gas Employees 25
13.9 Superannuation - Bridge Gas Employees 27
14 LIABILITIES AND INDEMNITIES 27
14.1 Liabilities after Completion 28
14.2 Indemnities 28
15 LIMITATION ON PURCHASER'S RIGHTS 28
15.1 Notice of Claim 28
15.2 Minimum Claim 28
15.3 Maximum Claim 29
15.4 No Liability for Consequential Loss 29
15.5 Reimbursements for Amounts Received 29
15.6 Limitations on Liability 29
15.7 Claims by Subsequent Owner 29
16 ANNOUNCEMENTS 29
16.1 Confidentiality 29
16.2 Stock Exchange 29
17 MISCELLANEOUS 30
17.1 Stamp Duty 30
17.2 Legal Costs 30
17.3 Amendment 30
17.4 Waiver and Exercise of Rights 30
17.5 Rights Cumulative 30
17.6 Approvals and Consent 30
17.7 Further Assurance 30
17.8 Governing Law 30
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17.9 Jurisdiction 30
17.10 Assignment 31
17.11 Counterparts 31
17.12 Time of Essence 31
17.13 Computation of Time 31
17.14 Joint and Several Liability 31
17.15 Effect of Execution 31
17.16 Entire Agreement 31
17.17 Invalidity 31
17.18 Merger 31
18 NOTICES 32
18.1 General 32
18.2 Method of service 32
18.3 Address for service 32
18.4 Service by post 32
18.5 Service by facsimile 33
18.6 Form received 33
18.7 Process service 33
18.8 Service after hours 33
19 UNDERTAKINGS BY VENDOR AND PURCHASER 33
19.1 Marketing Office 33
19.2 Research and Development Commitment 33
19.3 Further Licences 33
SCHEDULES
Schedule 1 - Pipeline 34
Schedule 2 - Plan of Brisbane Office 38
Schedule 3 - Vehicles 40
Schedule 4 - Access Principles 41
Schedule 5 - Licence 61
Schedule 6 - Deed of Covenant 73
Schedule 7 - Landowner Notice 76
Schedule 8 - Bridge Gas Employees 77
Schedule 9 - Deed of Termination and Release 79
Schedule 10 - Allocation of Purchase Price 81
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ANNEXURE A - Pipeline Route 82
