New South Wales Consolidated Acts

ERARING POWER STATION ACT 1981 - SECT 6

6 Provisions of special arrangements

(1) A special arrangement may make provision for or with respect to:

(a) the incurring and performing by the Commission or an affiliate of any obligation or liability, absolute, qualified or contingent, present or future, or

(b) the subordination by the Commission or an affiliate of any of its rights arising under or in respect of any charge, loan or unpaid purchase money or otherwise,

in connection with the financing, erection, construction, development, disposition, sale, purchase, ownership, operation, maintenance or management of the Eraring Power Station, the site (including easements or rights of way appurtenant to the site or any part of the site) or any associated facilities.

(2) A special arrangement may contain absolute and unconditional covenants and promises, and in particular may contain:

(a) absolute and unconditional covenants or promises by the Commission or an affiliate to pay for, or to make payments calculated by reference to, the output, or the prospect of obtaining the output, of the Eraring Power Station, whether or not that output is, at any relevant time, produced or delivered or capable of being produced or delivered, and whether or not the Eraring Power Station is, at any relevant time, erected, in existence, available to be operated or capable of being operated,

(b) absolute and unconditional covenants or promises by the Commission or an affiliate to purchase, and pay for, any one or more of the following, namely, the Eraring Power Station, the site, easements or rights of way appurtenant to the site and any associated facilities in the events or circumstances specified in the special arrangement, and

(c) absolute and unconditional covenants or promises by the Commission or an affiliate to make loans (at interest or otherwise) in the events or circumstances specified in the special arrangement,

or any of them.

(3) A covenant or promise referred to in subsection (2) (a) may contain an obligation to make payment in advance.

(4) Where the Commission, in any special arrangement, makes a covenant or promise to make any payment irrespective of any event or circumstance which otherwise would or might at law terminate, or permit termination of, the arrangement or excuse compliance with, or performance of, or provide a defence to, any proceedings to enforce the covenant or promise, the covenant or promise shall operate and be enforceable in accordance with its terms notwithstanding any provision of the Frustrated Contracts Act 1978 , any other Act or statute or any rule of law to the contrary.

(5) A special arrangement may contain a provision that the arrangement shall not be terminated on account of any matter or thing referred to in the special arrangement and shall be enforceable notwithstanding any such matter or thing, being or including (without limiting the generality of the foregoing) any default, event of force majeure or other event which would or might at law otherwise terminate, or permit termination of, the arrangement or excuse compliance with, or performance of, or provide a defence to, any proceedings to enforce the arrangement, and where any special arrangement so provides the provision:

(a) shall operate in accordance with its terms so that the special arrangement shall not be capable of being terminated except by express agreement between the parties or in the events or circumstances expressly provided for in the special arrangement, and

(b) shall be enforceable in accordance with its terms,

notwithstanding any provision of the Frustrated Contracts Act 1978 , any other Act or statute or any rule of law to the contrary.

(6) A special arrangement may include an express waiver by the Commission of its immunity (if any) under any Act or rule of law from proceedings, either in whole or in part, and any such waiver shall operate in accordance with its terms notwithstanding the provisions of any Act or rule of law to the contrary.

(7) A special arrangement may include a guarantee by the Commission of all or any of the covenants, promises, obligations or liabilities undertaken by or imposed upon an affiliate under any special arrangement.

(8) A special arrangement may provide:

(a) that ownership of specified buildings, structures or other fixtures, or all buildings, structures or other fixtures or those of a specified class or description, on the site shall not vest in the owner of the land on which they are situated or in any other person having or claiming an interest in the land, and

(b) that those buildings, structures or other fixtures are not realty and shall be transferable, in accordance with the provisions of that or any other special arrangement, to another person,

and any such provision shall operate in accordance with its terms notwithstanding any rule of law to the contrary.

(9) Upon lodgment with the Registrar-General by the Commission of a plan of subdivision of the site, or of a transfer of the site, excepting thereout any specified buildings, structures or other fixtures, or all buildings, structures or fixtures or those of a specified class or description, situated on the site, the Registrar-General shall, without requiring any survey or other plan of the land indicating where the buildings, structures or other fixtures are situated and upon being satisfied that the land comprises the site and that the plan of subdivision or transfer is otherwise in registrable form, register the plan of subdivision or transfer.

(10) A special arrangement may provide that ownership of or property in specified assets, or assets of a specified class or description, on, in or over land the subject of an easement appurtenant to the site shall vest in a specified person, and any such provision shall operate in accordance with its terms notwithstanding any rule of law to the contrary.

(11) A vesting of assets or property under subsection (8) or (10) does not, except to such extent and subject to such conditions (which may include a condition that compensation is to be payable by the Commission as if the assets had been appropriated or resumed, under Division 1 of Part 5 of the Public Works Act 1912 , for the purpose of carrying out an authorised work within the meaning of that Act) as the Governor may, by proclamation published in the Gazette, declare, divest any proprietary rights of a person or class of persons not a party to the special arrangement.

(12) Nothing in any provision of this section limits any other provision of this section, and nothing in this section prevents the inclusion in a special arrangement of provisions that are not of a kind referred to in this section.