South Australian Consolidated Acts South Australian Consolidated ActsSchedule 2—The 2000 Deed of Amendment
DEED OF AMENDMENT
THIS DEED is made 30 March 2000 between:
1 JOHN WAYNE OLSEN in
his capacity as Premier, for and on behalf of the Crown in right of the State
of South Australia (the " State "); and
2 THE BROKEN HILL
PROPRIETARY COMPANY LIMITED ACN 004 028 077, of 600 Bourke
Street, Melbourne, Victoria (" BHP ").
RECITALS
A The State and BHP
are parties to an Indenture dated 4 October 1937 which Indenture is set out
(in consolidated form) in Appendix 1 to the Broken Hill Proprietary Company's
Indenture Act 1937 (the " 1937 Indenture ") and to an Indenture dated 4
September 1958 which Indenture is set out in the Schedule to the Broken Hill
Proprietary Company's Steel Works Indenture Act 1958 (the " 1958
Indenture ").
B By this Deed of
Amendment the parties have agreed to amend each of the 1937 Indenture and the
1958 Indenture to allow BHP to assign its rights and be released of its
obligations under the 1937 Indenture and the 1958 Indenture.
THE PARTIES AGREE as follows:
The 1937 Indenture is amended by:
(a)
inserting the following clauses after clause 17 of the 1937 Indenture:
"18 Transfer of rights and obligations
(a) The
Company may, with the consent of the State, transfer its rights and
obligations under this Indenture and under one or more mineral or other leases
or other proprietary rights referred to in, or granted pursuant to, this
Indenture (the " Leases ") to a person or body corporate (the " Assignee ") by
the Company, the State and the Assignee executing a deed of assignment and
assumption substantially in the form of the deed set out in Schedule C to this
Indenture. If such a deed of assignment and assumption is executed by the
Company, the State and the Assignee, the Company and the State will, in
accordance with the provisions of the deed of assignment and assumption, be
released from their obligations and liabilities to each other under this
Indenture and the Leases.
(b) The
State will not withhold or delay the giving of its consent to a proposed
transfer of rights and obligations under this Indenture, or its execution of a
deed of assignment and assumption, if the proposed Assignee is:
(i)
a related body corporate (as defined in the Corporations
Law) of the assignor; or
(ii)
a company which is within a group of companies to which
the steel works and related operations in and around Whyalla have been, or are
to be, transferred as part of an integrated group of steel businesses which
have processing plant and equipment which (including any processing plant and
equipment at Whyalla) has design capacity which is capable of processing most
of the raw steel output from the steel works.
(c) In
all other cases, the State will not unreasonably withhold or delay the giving
of its consent to a proposed transfer of rights and obligations under this
Indenture, or its execution of a deed of assignment and assumption, provided
that the State is satisfied:
(i)
that the proposed Assignee is responsible and solvent;
and
(ii)
with such proposed Assignee's plans to secure the
continued viability of the steel works and related operations in and around
Whyalla.
(d) If,
pursuant to paragraph 18(a), The Broken Hill Proprietary Company Limited
transfers its obligations under this Indenture and any Leases to a company
which is a subsidiary of The Broken Hill Proprietary Company Limited, then, if
the company fails to perform such obligations whilst it is a subsidiary of The
Broken Hill Proprietary Company Limited, and notwithstanding anything in
paragraph 18(a) or in the relevant deed of assignment and assumption, The
Broken Hill Proprietary Company Limited will be liable for such failure as if
the transfer had not occurred.
(a) Any
proposed change in the persons who beneficially own or control more than 50
percent of the voting shares of the Company (including, for the avoidance of
doubt, any direct or indirect Assignee of The Broken Hill Proprietary Company
Limited which is a body corporate), or more than 50 percent of the voting
shares of a parent company of the Company (or relevant Assignee), will require
the consent of the State.
(b) The
State will not withhold or delay the giving of its consent to a proposed
change in control of the Company (or relevant Assignee) if:
(i)
the ultimate holding company (as defined in the
Corporations Law) of the Company (or relevant Assignee) is to remain the same;
or
(ii)
the Company (or relevant Assignee) will remain, or
become, a company which is within a group of companies which holds the steel
works and related operations in and around Whyalla as part of an integrated
group of steel businesses which have processing plant and equipment which
(including any processing plant and equipment at Whyalla) has design capacity
which is capable of processing most of the raw steel output from the steel
works.
(c) In
all other cases, the State will not unreasonably withhold or delay the giving
of its consent to a proposed change in control of the Company (or relevant
Assignee), provided that the State is satisfied:
(i)
that any proposed new ultimate holding company (as
defined in the Corporations Law) of the Company (or relevant Assignee) is
responsible and solvent; and
(ii)
with the Company's (or relevant Assignee's) plans to
secure the continued viability of the steel works and related operations in
and around Whyalla.
(d)
Paragraph 19(a) will not apply if the voting shares of the Company (or
relevant Assignee) are listed on a stock exchange, or to any proposed change
in the persons who beneficially own or control voting shares in a parent
company of the Company (or relevant Assignee) where the voting shares of such
parent company are listed on a stock exchange, but paragraph 19(a) will apply
to any proposed listing of the Company or any such parent company as if, but
irrespective of whether, the proposed listing involves a change in the persons
who beneficially own or control more than 50 percent of the relevant voting
shares."; and
(b) by
inserting the form of deed of assignment and assumption set out in Annexure 2
to this Deed of Amendment as Schedule C to the 1937 Indenture.
2 AFFIRMATION OF REMAINING TERMS OF 1937 INDENTURE
Except for the variations provided for in clause 1 of this Deed of Amendment,
the 1937 Indenture is in all respects affirmed.
The 1958 Indenture is amended by:
(a)
inserting the following clause after clause 26 of the 1958 Indenture:
(1) The Company has
agreed with the State:
(a) to
dispose of such of the land comprised in Certificates of Title Register Book
Volumes 5280 Folio 990, 5184 Folio 639, 4215 Folio 661 and 5523 Folio 190
which is shown on the plan set out in Appendix D to this Indenture and which
is owned by the Company (being approximately 3,600 hectares of the area
described in paragraph 26(a)) (the " Subject Area "), in accordance with the
provisions of this clause; and
(b) save
for the continuation and renewal of existing tenancies, sub-leases, licences
and similar, not to allow third parties to use the remainder of the area
described in paragraph 26(a), or any part of it, for any purposes which are
not steelmaking, or related to or ancillary to or in support of steelmaking,
without the consent of either one of the State or the City of Whyalla.
(2) The Company and
the State have identified that portions of the Subject Area (as approximately
depicted on the plan set out in Appendix D to this Indenture) may be suited to
the following uses:
(a) the
portion marked A, to extend the Whyalla Conservation Park;
(b) the
portion marked B, to extend the width of the adjoining road reserves;
(c) the
portion marked C, as a site for the development of an industrial park;
(d) the
portion marked D, to continue as the site for the existing golf course;
(e) the
portion marked E, as a site for the development of a recreation and leisure
park; and
(f) the
portion marked F, for such use as the City of Whyalla chooses.
(3) During the period
from when this clause takes effect until 31 December 2000, the Company
will use its reasonable endeavours to negotiate with appropriate potential
transferees for the transfer of the above portions of the Subject Area (or of
portions approximating such portions) on terms and conditions consistent with
the provisions of this clause and otherwise acceptable to the Company.
(4) The Company and
the State have identified the following potential transferees as likely to be
appropriate:
(a) in
relation to the portion marked A, the Minister for Environment and Heritage;
(b) in
relation to the portion marked B, the Minister for Transport and Urban
Planning; and
(c) in
relation to the portions marked C, D, E and F, the City of Whyalla.
(5) The size and
location of the identified portions of the Subject Area, the potential uses
for such portions and the potential appropriate transferees of such portions
may be altered by the Company in consultation with the State.
(6) Any transfer or
vesting of land pursuant to this clause will be:
(a) for
no monetary consideration, except that the Company may require the transferee
to be responsible for all or some of any applicable costs of subdivision or
transfer including registration fees and stamp duty; and
(b) made
subject to all third party rights of access, occupation and use which are in
existence, or otherwise required to access occupied or used portions of the
land, as at the time of such transfer or vesting.
(7) Any land
transferred or vested pursuant to this clause (other than the portion of the
Subject Area marked F) will, for so long as the steel works continue to
operate, carry with it the following restrictive covenants (which covenants
will run with the land):
(a)
subject to any agreement between the Company and an owner, occupier or user of
the land from time to time, the land must not be used for residential
purposes, or for any other use that (in the Company's opinion, acting
reasonably) adversely affects or compromises the operation of the steel works
(including the steel works, or its operation, as it is changed from time to
time, provided that no change to the steel works or its operation shall
prevent the continuation of any then existing use which did not adversely
affect the operation of the steel works when the use commenced); and
(b)
subject to any agreement between the Company and an owner, occupier or user of
the land from time to time, the land must not be used in any way which:
(i)
changes or interferes with any infrastructure which is
presently on, under or above such land and which is owned or operated by the
Company in connection with the steel works; or
(ii)
compromises the availability of, or the Company's access
to, sufficient quantities of gas, electricity and water for use in connection
with the steel works (including the steel works, or its operation, as it is
changed from time to time, provided that no change to the steel works or its
operation shall prevent the continuation of any then existing use which did
not adversely affect the steel works in this manner when the use commenced).
(8) If, as at 31
December 2000, the Company has not disposed of, or entered into agreements to
dispose of, all of the Subject Area, substantially in the manner contemplated
by this clause (or as otherwise agreed by the State) then, effective from 1
January 2001, legal and beneficial title to all such portions of the Subject
Area not so disposed of will immediately, and without further action, vest in
the State. Any costs or fees (including costs of subdivision, registration
fees and stamp duty) which are incurred consequent upon such vesting will be
borne by the State.
(9) Clause 26 will
cease to apply to any land transferred or vested pursuant to this clause, as
and from the date of transfer or vesting.
(10) —
(a) This
sub-clause (10) applies to infrastructure that is presently owned or operated
by the Company in connection with the steel works and is situated on, under or
above land transferred or vested pursuant to this clause.
(b)
Subject to any agreement in writing to the contrary, any infrastructure to
which this clause applies and which is owned by the Company will continue to
be owned by the Company after the land is transferred or vested,
notwithstanding any affixation or annexation to the land.
(c) The
Company will have an easement over land transferred or vested pursuant to this
clause which entitles the Company to:
(i)
operate, examine, maintain, repair, modify or replace the
relevant infrastructure;
(ii)
enter the land, by its agents or employees, at any
reasonable time, for any of the above purposes; and
(iii)
bring on to the land any vehicles or equipment that may
be reasonably necessary for any of the above purposes.
(d) The
powers conferred by the easement under this sub-clause (10) must be exercised
so as to minimise, as far as reasonably practicable, interference with the
enjoyment of the land by persons lawfully occupying the land.
(e) If
the Company has an easement over land relating to any relevant infrastructure
otherwise than by virtue of this sub-clause (10), the application of the
easement under this sub-clause (10) to the land is excluded to the extent
necessary to avoid the same part of the land being subject to both easements.
(f) The
Company may, by instrument in writing, limit rights or impose conditions on
the exercise of rights arising under the easement under this
sub-clause (10) (and such an instrument has effect according to its
terms).
(g) An
easement under this sub-clause (10) may, but need not, be registered."
(b)
inserting the following sub-clauses after such clause 31(4) of the 1958
Indenture:
"31(5) Transfer of
rights and obligations
(a)
Notwithstanding clauses 31(1) to (4) above, the Company may, with the consent
of the State, transfer its rights and obligations under this Indenture and
under one or more mineral or other leases or other proprietary rights referred
to in, or granted pursuant to, this Indenture (the " Leases ") to a person or
body corporate (the " Assignee ") by the Company, the State and the Assignee
executing a deed of assignment and assumption substantially in the form of the
deed set out in Appendix E to this Indenture. If such a deed of assignment and
assumption is executed by the Company, the State and the Assignee, the Company
and the State will, in accordance with the provisions of the deed of
assignment and assumption, be released from its obligations and liabilities to
each other under this Indenture and the Leases.
(b) The
State will not withhold or delay the giving of its consent to a proposed
transfer of rights and obligations under this Indenture, or its execution of a
deed of assignment and assumption, if the proposed Assignee is:
(i)
a related body corporate (as defined in the Corporations
Law) of the assignor; or
(ii)
a company which is within a group of companies to which
the steel works and related operations in and around Whyalla have been, or are
to be, transferred as part of an integrated group of steel businesses which
have processing plant and equipment which (including any processing plant and
equipment at Whyalla) has design capacity which is capable of processing most
of the raw steel output from the steel works.
(c) In
all other cases, the State will not unreasonably withhold or delay the giving
of its consent to a proposed transfer of rights and obligations under this
Indenture, or its execution of a deed of assignment and assumption, provided
that the State is satisfied:
(i)
that the proposed Assignee is responsible and solvent;
and
(ii)
with such proposed Assignee's plans to secure the
continued viability of the steel works and related operations in and around
Whyalla.
(d) If,
pursuant to paragraph 31(5)(a), The Broken Hill Proprietary Company Limited
transfers its obligations under this Indenture and any Leases to a company
which is a subsidiary of The Broken Hill Proprietary Company Limited, then, if
the company fails to perform such obligations whilst it is a subsidiary of The
Broken Hill Proprietary Company Limited, and notwithstanding anything in
paragraph 31(5)(a) or in the relevant deed of assignment and assumption, The
Broken Hill Proprietary Company Limited will be liable for such failure as if
the transfer had not occurred.
31(6)
(a) Any
proposed change in the persons who beneficially own or control more than 50
percent of the voting shares of the Company (including, for the avoidance of
doubt, any direct or indirect Assignee of The Broken Hill Proprietary Company
Limited which is a body corporate), or more than 50 percent of the voting
shares of a parent company of the Company (or relevant Assignee), will require
the consent of the State.
(b) The
State will not withhold or delay the giving of its consent to a proposed
change in control of the Company (or relevant Assignee) if:
(i)
the ultimate holding company (as defined in the
Corporations Law) of the Company (or relevant Assignee) is to remain the same;
or
(ii)
the Company (or relevant Assignee) will remain, or
become, a company which is within a group of companies which holds the steel
works and related operations in and around Whyalla as part of an integrated
group of steel businesses which have processing plant and equipment which
(including any processing plant and equipment at Whyalla) has design capacity
which is capable of processing most of the raw steel output from the steel
works.
(c) In
all other cases, the State will not unreasonably withhold or delay the giving
of its consent to a proposed change in control of the Company (or relevant
Assignee), provided that the State is satisfied:
(i)
that any proposed new ultimate holding company (as
defined in the Corporations Law) of the Company (or relevant Assignee) is
responsible and solvent; and
(ii)
with the Company's (or relevant Assignee's) plans to
secure the continued viability of the steel works and related operations in
and around Whyalla.
(d)
Paragraph 31(6)(a) will not apply if the voting shares of the Company (or
relevant Assignee) are listed on a stock exchange, or to any proposed change
in the persons who beneficially own or control voting shares in a parent
company of the Company (or relevant Assignee) where the voting shares of such
parent company are listed on a stock exchange, but paragraph 31(6)(a) will
apply to any proposed listing of the Company or any such parent company as if,
but irrespective of whether, the proposed listing involves a change in the
persons who beneficially own or control more than 50 percent of the relevant
voting shares"; and
(c) by
inserting the plan set out in Annexure 1 to this Deed as Appendix D to the
1958 Indenture; and
(d) by
inserting the form of deed of assignment and assumption set out in Annexure 2
to this Deed of Amendment as Appendix E to the 1958 Indenture.
4 AFFIRMATION OF REMAINING TERMS OF 1958 INDENTURE
Except for the variations provided for in clause 3 of this Deed of Amendment,
the 1958 Indenture is in all respects affirmed.
5.1 The Government of
the State will, as early as practicable after execution of this Deed,
introduce a Bill into the Parliament of the State for ratification and
approval of this Deed of Amendment and to secure to BHP (and its successors
and assigns) the rights provided for in this Deed and enable this Deed to be
fully carried into operation.
5.2 The provisions of
this Deed, other than this clause 5, will not come into operation unless and
until the Bill referred to in clause 5.1 has been passed by the Parliament of
the State of South Australia and the Act founded on such Bill comes into
operation.
5.3 BHP agrees that
clause 1(3) of the 1958 Indenture will not apply to any Act passed by the
Parliament of the State of South Australia the sole effect of which is to
ratify and approve (or otherwise support the terms of) this Deed of Amendment,
except that such Act may also provide for the repeal of section 7 of the
Broken Hill Proprietary Company's Steel Works Indenture Act 1958 in
accordance with the following principles:
(a) the
repeal of such section takes effect from the date on which a transfer of The
Broken Hill Proprietary Company Limited's rights and obligations under the
1937 Indenture and the 1958 Indenture (and certain leases) to an Assignee
pursuant to new clause 18 of the 1937 Indenture and new clause 31(5) of the
1958 Indenture takes effect, unless the relevant Assignee is a related body
corporate of The Broken Hill Proprietary Company Limited, in which case the
repeal of such section takes effect on the date on which the Assignee ceases
to be a related body corporate of The Broken Hill Proprietary Company Limited
(" Repeal Date ");
(b)
section 16 of the Acts Interpretation Act 1915 applies to provide that
such repeal does not affect the operation of the repealed enactment, or alter
the doing, suffering or omission of anything, prior to the repeal or affect
any right or privilege, or any status existing, prior to the repeal;
(c)
notwithstanding any other Act or law, an Assignee (as defined in new
clause 18 of the 1937 Indenture and in new clause 31(5) of the 1958
Indenture (and including any assignee from an Assignee)) shall not be liable
for the doing, suffering or omission of anything by The Broken Hill
Proprietary Company Limited or its subsidiaries (including any Assignee,
whilst a subsidiary of The Broken Hill Proprietary Company Limited) prior to
the Repeal Date, where the Broken Hill Proprietary Company Limited and its
subsidiaries (including any Assignee, whilst a subsidiary of The Broken Hill
Proprietary Company Limited) are not so liable by reason of the prior
application of the repealed section; and
(d) an
environmental authorisation under section 37 of the Environment Protection
Act 1993, which exempts the Company from the application of a specified
provision of the Environment Protection Act 1993 in respect of specified
activities at its operations in or around Whyalla, may be granted or renewed
so that it remains in force for more than two years under Regulation 5(b)
of the Environment Protection (General) Regulations 1994 without the need
for compliance with Regulation 5(b)(ii).
6.1 Law
The governing law of this Deed of Amendment is the law of the State of South
Australia, and the parties submit to the non-exclusive jurisdiction of the
Courts of South Australia and to the courts which hear appeals from those
courts.
6.2 Costs
Each party will bear its own legal costs of preparation and review of this
Deed of Amendment. BHP will pay all stamp duty levied on this Deed of
Amendment.
6.3 Counterparts
This Deed of Amendment may be executed in counterparts, which when taken
together are one instrument.
EXECUTION
|
EXECUTED by the parties as a Deed. | | |
|
SIGNED SEALED and DELIVERED for and on behalf of the Crown in right of the
State of South Australia by JOHN WAYNE OLSEN , Premier, in the presence of: |
} |
(J W Olsen) |
|
Premier | ||
|
(Peter Lockett) | | |
|
Witness | | |
|
PETER LOCKETT | | |
|
Print Name | | |
| | | |
|
SIGNED SEALED and DELIVERED by THE BROKEN HILL PROPRIETARY COMPANY LIMITED by
its attorney and in the presence of: |
} |
(P Laity) |
|
Attorney | ||
|
Philip M Laity | ||
|
Print Name | ||
|
(D J Goodwin) | | |
|
Witness | | |
|
DAVID GOODWIN | | |
|
Print Name | | |
ANNEXURE 1
LAND TO BE DISPOSED
ANNEXURE 2
FORM OF DEED OF ASSIGNMENT AND ASSUMPTION
DEED OF ASSIGNMENT AND ASSUMPTION
THIS DEED is made
between:
1 THE MINISTER FOR
PRIMARY INDUSTRIES AND RESOURCES , the Minister administering the
Broken Hill Proprietary Company's Indenture Act 1937 and the Broken Hill
Proprietary Company's Steel Works Indenture Act 1958, a body corporate
pursuant to the provisions of the Administrative Arrangements Act 1994,
acting for and on behalf of the Crown in right of the State of South Australia
(the " State ");
2 THE BROKEN HILL
PROPRIETARY COMPANY LIMITED ACN 004 028 077 of 600 Bourke Street, Melbourne,
Victoria (" BHP "); and
3 [ Insert name, ACN
and address of Assignee ] (the " Assignee ").
RECITALS
A The State and BHP
are parties to an Indenture dated 4 October 1937 which Indenture is set out
(in consolidated form) in Appendix 1 to the Broken Hill Proprietary Company's
Indenture Act 1937 (the " 1937 Indenture ") and to an Indenture dated 4
September 1958 which Indenture is set out in the Schedule to the Broken Hill
Proprietary Company's Steel Works Indenture Act 1958 (the " 1958
Indenture ").
B By clause 18 of the
1937 Indenture BHP is permitted to assign its rights under the 1937 Indenture
and the Leases by the execution of a deed of assignment and assumption
substantially in the form of this Deed.
C By clause 31(5) of
the 1958 Indenture BHP is permitted to assign its rights under the 1958
Indenture and the Leases by the execution of a deed of assignment and
assumption substantially in the form of this Deed.
D By [ Insert details
of sale or other agreement between BHP and the Assignee ], BHP has agreed to
assign with effect from the Effective Date, its right and interest under the
1937 Indenture, the 1958 Indenture and the Leases to the Assignee and the
Assignee has agreed to accept that assignment and to assume BHP's obligations
and liabilities under the 1937 Indenture, the 1958 Indenture and the Leases.
E The parties are
entering into this Deed to effect the assignment and assumption referred to in
Recital D.
THE PARTIES AGREE as follows:
1. ASSIGNMENT AND ASSUMPTION
The Effective Date is [ Insert date ] or such other date on or after the date
of this Deed as is agreed in writing by BHP and the Assignee, and notified to
the State.
1.2 Deed applies from Effective Date
All provisions of this Deed will have effect from and, if necessary, relate
back to the Effective Date, so as to have full force and effect on and from
that date.
From the Effective Date:
(a) BHP
assigns to the Assignee all of its rights and interests under the Assigned
Instruments; and
(b) the
Assignee assumes all of BHP's obligations and liabilities under the Assigned
Instruments and will be bound by and comply with those provisions of the
Assigned Instruments which were, immediately prior to the Effective Date,
binding upon BHP.
2. THE STATE'S COVENANTS
The Assignee covenants with the State that it will, from the Effective Date,
observe and perform the Assigned Instruments and be bound by all terms of the
Assigned Instruments which, but for this Deed, were to be performed by BHP.
In consideration of the promise contained in clause 2.1, the State consents to
the assignment to the Assignee of BHP's rights under the Assigned Instruments,
with effect from the Effective Date.
2.3 Release of BHP by the State
(a) With
effect on and from the Effective Date, the State releases BHP from all its
obligations and liabilities under the Assigned Instruments and from all
actions, claims or proceedings that it may have against BHP under or in
respect of the Assigned Instruments.
(b)
Nothing in clause 2.3(a) relieves BHP of any obligations and liabilities
accrued under the Assigned Instruments prior to the Effective Date except to
the extent the Assignee discharges such obligations and liabilities.
(a) With
effect on and from the Effective Date, BHP releases the State from all its
obligations and liabilities under the Assigned Instruments and from all
actions, claims or proceedings that it may have against the State under or in
respect of the Assigned Instruments.
(b)
Nothing in clause 2.4(a):
(i)
relieves the State of any obligations and liabilities
accrued under the Assigned Instruments prior to the Effective Date except to
the extent such obligations and liabilities are discharged in favour of the
Assignee; or
(ii)
shall be taken to constitute a release by the Assignee of
any obligations and liabilities of the State.
3. MISCELLANEOUS PROVISIONS
The governing law of this Deed is the law of the State of South Australia, and
the parties submit to the non-exclusive jurisdiction of the Courts of South
Australia and to the courts which hear appeals from those courts.
Each party will bear its own legal costs of preparation and review of this
Deed. The Assignee will pay all stamp duty levied on this Deed.
This Deed may be executed in counterparts, which when taken together are one
instrument.
In this Deed:
(a) "
Assigned Instruments " means the 1937 Indenture, the 1958 Indenture and the
Leases.
(b) "
Leases " means all mineral and other leases and other proprietary rights held
by BHP which are referred to in, or granted pursuant to, the 1937 Indenture or
the 1958 Indenture.
(c) A
reference to the 1937 Indenture, the 1958 Indenture and the Leases is a
reference to those instruments and proprietary rights as they have been, or
are, amended from time to time.
EXECUTED by the parties as a Deed.
[ Insert Execution clauses ]
This consolidation is provided for convenience only and does not form part of
the Act.
Original Indenture and amendments
|
Year |
No |
Title |
Assent |
Commencement |
|---|---|---|---|---|
|
1937 |
2362 |
1.12.1937 |
1.12.1937 | |
|
1958 |
28 |
Broken Hill Proprietary Company's Steel Works Indenture Act 1958 |
13.11.1958 |
13.11.1958 |
|
1981 |
95 |
Harbors Act Amendment Act (No. 2) 1981 |
23.12.1981 |
23.12.1981 |
|
2000 |
15 |
Statutes Amendment (BHP Indentures) Act 2000 |
11.5.2000 |
11.5.2000 |
|
This Indenture was also amended by clause 33 of the Indenture to the Broken
Hill Proprietary Company's Steel Works Indenture Act 1958 . These
amendments have not been incorporated into this consolidated Indenture. | ||||
This Indenture made on the fourth day of October, 1937 BETWEEN HIS MOST
GRACIOUS MAJESTY KING GEORGE THE SIXTH by the Grace of God, of Great Britain,
Ireland and the British Dominions beyond the Seas King, Defender of the Faith,
Emperor of India, of the first part, HIS EXCELLENCY THE LIEUTENANT-GOVERNOR of
the State of South Australia and its Dependencies in the Commonwealth of
Australia, contracting for and on behalf of the State of South Australia and
the Governments thereof from time to time in office, of the second part, and
THE BROKEN HILL PROPRIETARY COMPANY LIMITED (which with its successors and
assigns is hereinafter called "the Company") of the third part:
WHEREAS the establishment of a blast furnace in South Australia for smelting
iron ores would be of great economic advantage to South Australia and of
considerable value for the purposes of national defence and the Honourable
Richard Layton Butler Premier and Treasurer of the said State has on behalf of
the Government of the said State requested the Company to establish within the
said State a blast furnace and the works and plant ancillary thereto: AND
WHEREAS the Company has agreed to comply with that request and to establish
such a furnace and such works and plant upon the Government of South Australia
entering into this Indenture and upon and subject to the covenants terms and
conditions therein contained and subject to the authorization and ratification
thereof by the Parliament of the said State AND WHEREAS in consideration of
the great expenditure to be incurred by the Company in complying with the
request and establishing the furnace works and plant it is agreed that the
tenure and other rights of the Company should be effectively extended
preserved and protected and that adequate rights of winning transporting
treating and shipping ironstone and its products and other materials and
stores used by the Company should be secured to the Company, and that
arrangements should be made for providing the Company with additional sites
for the erection of wharves and jetties and with other shipping facilities:
NOW THIS INDENTURE WITNESSETH AS FOLLOWS:
1. This Indenture to be subject to ratification
(a) The Government of
the State will as early as practicable after the execution of this Indenture
and during the session of Parliament current at the time of the execution of
this Indenture introduce a Bill into the Parliament of the State for
authorizing and ratifying this Indenture and securing to the Company the
rights provided for in this Indenture and enabling this Indenture to be fully
carried into operation. If such a Bill is not passed during the said session
the clauses of this Indenture, other than this clause, shall not come into
operation but if such a Bill is so passed and the Act founded thereon comes
into operation before the 1st March, 1938 those clauses shall become binding
on the day on which the said Act comes into operation.
(b) Interpretation
In this Indenture, except where the context otherwise requires, the following
terms have the following meanings:
"The commencement of this Indenture" means the day on which the Act for
authorizing and ratifying this Indenture and securing to the Company the
rights provided for in this Indenture and enabling this Indenture to be fully
carried into operation, comes into operation:
"The Government" means the Government of the State of South Australia for the
time being in office during the term of this Indenture:
"The State" means the State of South Australia:
"The term of this Indenture" (without affecting any obligation of any party to
do any act after the expiration of the term of this Indenture) means the
period of fifty years from the commencement of this Indenture and, if the
period of operation of this Indenture is extended by mutual agreement,
includes the period for which the operation of this Indenture is so extended:
"The Treasurer" means the Treasurer of the State of South Australia for the
time being in office:
"Blast furnace" means a blast furnace and all ancillary works plant tramways
jetties wharves roads and other works necessary for the production of pig
iron.
2. Construction of works by the Company
The Company will at its own expense establish at or in the vicinity of Whyalla
a blast furnace for the production of pig iron.
The Company shall commence the work of constructing the blast furnace as early
as practicable after the commencement of this Indenture and shall so carry on
the said work of construction that the blast furnace will be capable of
producing pig iron within three years from the commencement of this Indenture,
or within such extended period as the Treasurer approves.
The Treasurer shall not capriciously withhold his approval to any extension of
period reasonably asked for by the Company, and shall not withhold his
approval to any extension of period rendered necessary by labour troubles or
causes beyond the Company's control.
3. Extension of mineral leases
The term of all the leases described in the schedule to this Indenture shall
be extended so that every such lease shall expire upon the expiration of fifty
years from the commencement of this Indenture: and the Government will cause
to be executed such endorsements or instruments as are necessary to give
effect to this covenant.
During the said period and, unless otherwise agreed, during any further period
for which the operation of this Indenture is extended, the covenants terms
conditions and provisoes of the said leases shall remain as at the
commencement of this Indenture, subject only to the modifications provided for
in this Indenture.
Upon the expiration of the term of this Indenture the Company shall have a
right to the renewal of the said leases from time to time for periods of
twenty-one years and the renewal shall be on the terms and conditions
prescribed in that behalf by the laws of the State in force at the
commencement of this Indenture, subject to payment of the same royalty as is
provided for in subclause (2) of clause 6 of this Indenture.
5. Compliance with labour conditions
It shall be a sufficient compliance with the labour conditions of any of the
said leases if the horsepower and labour employed on any one or more of the
said leases satisfy the total labour conditions of the whole of the said
leases.
(1) As from the
commencement of this Indenture until the 3lst December, 1939, or the date on
which the Company commences the production of pig iron in South Australia,
whichever is earlier, the Company shall pay to the Treasurer a royalty at the
rate of three pence per ton on all ironstone won by it in the State, which
during the period aforesaid is shipped from Whyalla or sold in the State.
(2) From the 31st
December, 1939, or the earlier date aforesaid and throughout the remainder of
the term of this Indenture, the Company shall pay to the Treasurer a royalty
at the rate of sixpence per ton on all ironstone won by the Company in the
State, which during the period aforesaid is shipped in the State, or used by
the Company in its smelting operations in the State, or delivered in the State
on sale.
(3) The said royalties
shall be—
(a) computed upon the
total quantity of ironstone shipped or used or delivered as aforesaid during
every period of six calendar months ending respectively on the 30th day of
June and the 31st day of December, and also during any portion of any such
period occurring at the beginning or end of the term of this Indenture; and
(b) paid not later
than two months after the end of the period for which they are computed.
(4) For the purpose of
computing the tonnage upon which the said royalty is payable the Company's
weighbridge and weightometer records with such corrections and adjustments
thereof as it is necessary to make to achieve reasonable exactitude shall be
accepted as correct.
(5) The said royalties
shall be substituted for any other royalties or payments in the nature of
royalties reserved under any of the leases mentioned in the schedule to this
Indenture.
(6) The Company shall
in every month of July and every month of January during the term of this
Indenture and within one month after the expiration of the term of this
Indenture furnish to the Minister of Mines of the State a full and complete
return of all ironstone shipped used or delivered as aforesaid during the
period of six calendar months ending on the preceding 30th day of June or 31st
day of December or during any portion of any such period for which the return
is furnished and any other information reasonably required by the said
Minister for the purpose of enabling him to compute the amount of royalty
payable by the Company. The said Minister his officers servants and agents
shall for the purpose of checking and verifying any such return have free
access to and right of inspection of all books papers and documents of the
Company in so far as they shew the quantities of ironstone shipped or used or
delivered and the right to enter and examine the lands comprised in the said
leases.
7. Rights to construct jetties
(a) The Company may
erect construct occupy maintain and use at or near False Bay on any part of
the area hereinafter described in this subclause (being land of the Crown,
foreshore and sea-bed) a jetty or jetties extending to seaward for such
distance within the said area as the Company thinks proper, with any wharves
channels works buildings approaches roads ways tramways and conveniences which
are reasonably required in connection with the operations of the Company, and
may, within the said area, extend any jetty or wharf existing at the time when
this Indenture comes into operation.
The area previously referred to in this subclause consists of land of the
Crown, foreshore and sea-bed defined as follows:
Commencing at the eastern corner of Section 2, Hundred of Randell; thence
southeasterly by a line being the production of the northeastern boundary of
said section; thence northeasterly at right angles by a line 30 chains
southeast of the southeastern edge of the Ore Berth at Whyalla Jetty for 160
chains; thence northwesterly at right angles to high water mark on the sea
coast; thence generally southerly along said high water mark to the point of
commencement, together with the 150 links Coast Reserve abutting the above
defined area on its coastal boundary and extending throughout the length of
that boundary.
(c) The Company shall
be entitled to occupy maintain and use all jetties wharves works buildings
approaches roads ways tramways and conveniences which are erected or
constructed by it pursuant to this Indenture; and such rights shall be as full
and extensive as the rights granted to the Company by or under the Broken Hill
Proprietary Company Limited's Hummock Hill to Iron Knob Tramways and Jetties
Act, 1900, in respect of the jetties wharves works buildings approaches
roads ways tramways and conveniences mentioned in sections 22 and 23 of that
Act.
(d) Paragraph (c) does
not apply in relation to the jetty constructed at Rapid Bay.
8. Right of Company to construct tramways
The Company may, on any land which is vested in it or over which it holds or
acquires the necessary rights, make form lay down construct maintain and work
such new tramways or extensions of existing tramways as are necessary for the
purpose of transporting ironstone and other material from and to any mineral
leases for the time being held by the Company; but before commencing to make
any such tramway or extension the Company shall deposit the usual and proper
plans thereof in the office of the Surveyor General.
9. Right of Company as to vermin fences
For the purpose of making forming laying down constructing and working any
such new tramway or extension of any tramway, the Company may cut sufficient
spaces or openings through any vermin fence, dog-proof fence or rabbit proof
fence within the meaning of the Vermin Act, 1931, through which the
tramway or extension passes; but the Company shall erect and at all times
maintain across every opening or space so cut good and sufficient gates or
other effective apparatus or devices for preventing the ingress or egress of
vermin. Such gates or other apparatus or devices shall be constructed in such
a manner that such gates when closed or such other apparatus or devices will
be at least as effective for the exclusion of rabbits dogs and other vermin as
the fence through which the openings or spaces are cut. The Company (unless
other apparatus or devices are employed) shall keep such gates constantly
closed and securely fastened, but may open any of them so long as is necessary
to enable any engines, waggons, carriages or other conveyances or traffic of
the Company to pass through them.
10. Application of Statute to tramway built by the
Company
In and for the purpose of making, forming, laying down, constructing,
maintaining and working any tramways or extensions of tramways under this
Indenture the Company shall conform to and have the benefit of those
provisions of the Broken Hill Proprietary Company Limited's Hummock Hill to
Iron Knob Tramways and Jetties Act, 1900, including the provisions of any
Acts incorporated with that Act, which relate to the tramways authorized by
that Act, as if those provisions applied also to the tramways and extensions
provided for in this Indenture; but no provision of that Act or any Act
incorporated therewith inconsistent with this indenture or fixing the period
for the completion of any tramway, or empowering the Government to license any
person to use the tramways, or binding the Company to file accounts relating
to tramways shall apply to or in relation to the tramways or extensions
provided for in this Indenture.
11. Land for tramways and electric transmission
(a) If for the purpose
of or in connection with the construction extension or working of any tramways
mines or quarries, or the installation of any posts, wires, conduits or other
apparatus or equipment for or in connection with the transmission of
electricity, the Company should require the fee simple of, or any lease
easement or other rights over, any land comprised in any pastoral lease or
other lease from the Crown, and any Minister of the Crown or any authority
under the Crown has power to resume such land, the Minister or other authority
shall at the request of the Company exercise such power to the extent
necessary, and transfer convey or assign to the Company the land or the lease
easement or rights which the Company requires for the purposes aforesaid; but
the Company shall pay to the Minister or other authority a reasonable price
for such land lease easement or other rights, sufficient to cover the
expenditure incurred by such Minister or other authority for and in connection
with the resumption.
(b) If for any of the
purposes mentioned in paragraph (a) of this clause the Company requires the
fee simple of or any rights over any Crown Lands not subject to any lease or
agreement, the Government will sell to the Company at such reasonable price as
may be agreed the fee simple of that land or the other rights required by the
Company over that land.
12. Deviation of Port Augusta-Whyalla Road
If any part of the Port Augusta-Whyalla Road passes through the site selected
by the Company for its blast furnace or other plant and works the Government
shall procure the closing of that part of the said road, and shall procure the
opening of a new piece of road in substitution for the part of the road so
closed, along a route convenient as far as possible both to the Company and
the public; and the new piece of road shall be constructed, in a manner
similar to the previously existing road, at the cost of the Company.
In order to assist the Company to further extend its works by the
establishment in the vicinity of Whyalla of Coke Oven Plant and/or works for
the production of Steel, Rolling Mills, and other plant, the Government on
being notified by the Company that it is prepared to establish any such works
will use every endeavour to provide the Company with a supply of fresh water
at the site of such works sufficient for the full requirements of the Company
at such fair and reasonable price as may be mutually agreed upon.
14. Provision in event of removal of works to
Backie Bay
If at any time during the term of this Indenture the Company desires to erect
new furnaces plant wharves jetties or other works at Backie Bay or to transfer
all or any part of its furnace plant wharves jetties and other works from
Whyalla to Backie Bay the Government will endeavour by all reasonable and
lawful means to secure to the Company, as far as possible, rights at and in
relation to Backie Bay its foreshore sea-bed and lands adjacent thereto for
the purpose of enabling the Company to carry on its operations there, similar
to the rights which the Company enjoys at the commencement of and by virtue of
this Indenture in relation to and for the purpose of its operations at
Whyalla.
15. Tolls and dues in respect of use of jetties
During the term of this Indenture no charges or imposts other than those which
have heretofore been collected from the Company shall be imposed in respect of
the use or occupation of the said wharves and jetties or on the shipment or
carriage of goods to over or from the said wharves and jetties nor on the
ships engaged in the shipment thereof.
Neither the Governor of the State nor the South Australian Railways
Commissioner nor any Governmental or other body shall during the term of this
Indenture exercise any right conferred on any of them by The General Tramways
Act, 1884, or The Broken Hill Proprietary Company Limited's Hummocks Hill
to Iron Knob Tramways and Jetties Act, 1900, or any Act amending either
of those Acts of purchasing any part of the Company's land tramways wharves
jetties works plant or other property, or of granting any licence to any other
person to use the wharves jetties or tramways of the Company.
In further consideration of the Company entering into this Indenture it is
hereby further covenanted that neither during the term of this Indenture nor
during any extension of that term shall the rights of tenure and otherwise of
the Company existing at the commencement or by virtue of this Indenture or
lawfully acquired during the term of this Indenture, be in any wise impaired
disturbed or prejudicially affected; and the Government shall take all
necessary steps to secure those rights to the Company and prevent them from
being impaired disturbed or prejudicially affected in any way whatsoever, and
no other person shall have the right to acquire a mining claim or title over
any land occupied by the Company for its works.
Provided that no tax payable by the Company or in respect of its property
under any public general Act of the Parliament of the State at rates not
exceeding those applicable generally throughout the State shall be deemed to
impair disturb or prejudicially affect any right of the Company.
18. Transfer of rights and obligations
(a) The Company may,
with the consent of the State, transfer its rights and obligations under this
Indenture and under one or more mineral or other leases or other proprietary
rights referred to in, or granted pursuant to, this Indenture (the " Leases ")
to a person or body corporate (the " Assignee ") by the Company, the State and
the Assignee executing a deed of assignment and assumption substantially in
the form of the deed set out in Schedule C to this Indenture. If such a deed
of assignment and assumption is executed by the Company, the State and the
Assignee, the Company and the State will, in accordance with the provisions of
the deed of assignment and assumption, be released from their obligations and
liabilities to each other under this Indenture and the Leases.
(b) The State will not
withhold or delay the giving of its consent to a proposed transfer of rights
and obligations under this Indenture, or its execution of a deed of assignment
and assumption, if the proposed Assignee is:
(i)
a related body corporate (as defined in the Corporations
Law) of the assignor; or
(ii)
a company which is within a group of companies to which
the steel works and related operations in and around Whyalla have been, or are
to be, transferred as part of an integrated group of steel businesses which
have processing plant and equipment which (including any processing plant and
equipment at Whyalla) has design capacity which is capable of processing most
of the raw steel output from the steel works.
(c) In all other
cases, the State will not unreasonably withhold or delay the giving of its
consent to a proposed transfer of rights and obligations under this Indenture,
or its execution of a deed of assignment and assumption, provided that the
State is satisfied:
(i)
that the proposed Assignee is responsible and solvent;
and
(ii)
with such proposed Assignee's plans to secure the
continued viability of the steel works and related operations in and around
Whyalla.
(d) If, pursuant to
paragraph 18 (a) , The Broken Hill Proprietary Company Limited transfers its
obligations under this Indenture and any Leases to a company which is a
subsidiary of The Broken Hill Proprietary Company Limited, then, if the
company fails to perform such obligations whilst it is a subsidiary of The
Broken Hill Proprietary Company Limited, and notwithstanding anything in
paragraph 18 (a) or in the relevant deed of assignment and assumption, The
Broken Hill Proprietary Company Limited will be liable for such failure as if
the transfer had not occurred.
(a) Any proposed
change in the persons who beneficially own or control more than 50 percent of
the voting shares of the Company (including, for the avoidance of doubt, any
direct or indirect Assignee of The Broken Hill Proprietary Company Limited
which is a body corporate), or more than 50 percent of the voting shares of a
parent company of the Company (or relevant Assignee), will require the consent
of the State.
(b) The State will not
withhold or delay the giving of its consent to a proposed change in control of
the Company (or relevant Assignee) if:
(i)
the ultimate holding company (as defined in the
Corporations Law) of the Company (or relevant Assignee) is to remain the same;
or
(ii)
the Company (or relevant Assignee) will remain, or
become, a company which is within a group of companies which holds the steel
works and related operations in and around Whyalla as part of an integrated
group of steel businesses which have processing plant and equipment which
(including any processing plant and equipment at Whyalla) has design capacity
which is capable of processing most of the raw steel output from the steel
works.
(c) In all other
cases, the State will not unreasonably withhold or delay the giving of its
consent to a proposed change in control of the Company (or relevant Assignee),
provided that the State is satisfied:
(i)
that any proposed new ultimate holding company (as
defined in the Corporations Law) of the Company (or relevant Assignee) is
responsible and solvent; and
(ii)
with the Company's (or relevant Assignee's) plans to
secure the continued viability of the steel works and related operations in
and around Whyalla.
(d) Paragraph 19 (a)
will not apply if the voting shares of the Company (or relevant Assignee) are
listed on a stock exchange, or to any proposed change in the persons who
beneficially own or control voting shares in a parent company of the Company
(or relevant Assignee) where the voting shares of such parent company are
listed on a stock exchange, but paragraph 19 (a) will apply to any proposed
listing of the Company or any such parent company as if, but irrespective of
whether, the proposed listing involves a change in the persons who
beneficially own or control more than 50 percent of the relevant voting
shares.
IN WITNESS WHEREOF the public seal of the State and the common seal of the
Company were hereunto affixed on the days and years set out below.
|
The Common seal of the Broken Hill Proprietary Company Limited was affixed
hereunto on the fourth day of October, 1937, in the presence of— |
Seal of Company. |
|
Public Seal of the State. |
H.G. DARLING, Director. |
THE SCHEDULE TO THE AGREEMENT.
A.
Mineral Leases over iron ore deposits held by or to be issued to The Broken
Hill Proprietary Company Limited, the term of which is extended by this
Indenture:
Numbers: 1659–1667, 2238–2242, 2383, 2384, 2386–2392,
2397–2403, 2560–2568, 2612–2614, 2631, 2632,
2647–2654, 2656–2663, 2668–2674, 2677–2712.
B.
Any leases which may be granted to the Company before or during the term of
this Indenture in respect of areas pegged out and held by virtue of the
following Miner's Rights:
Numbers: 1874, 1875, 1951, 1995, 1996, 1997, 1999, 2001, 2002, 2010, 2058,
2061, 2063, 2080, 2081, 2084, 2111, and 2059.
C.
FORM OF DEED OF ASSIGNMENT AND ASSUMPTION
DEED OF ASSIGNMENT AND ASSUMPTION
THIS DEED is made
between:
1 THE MINISTER FOR
PRIMARY INDUSTRIES AND RESOURCES , the Minister administering the
Broken Hill Proprietary Company's Indenture Act 1937 and the Broken Hill
Proprietary Company's Steel Works Indenture Act 1958, a body corporate
pursuant to the provisions of the Administrative Arrangements Act 1994,
acting for and on behalf of the Crown in right of the State of South Australia
(the " State ");
2 THE BROKEN HILL
PROPRIETARY COMPANY LIMITED ACN 004 028 077 of 600 Bourke
Street, Melbourne, Victoria (" BHP "); and
3 [ Insert name, ACN
and address of Assignee ] (the " Assignee ").
RECITALS
A The State and BHP
are parties to an Indenture dated 4 October 1937 which Indenture is set out
(in consolidated form) in Appendix 1 to the Broken Hill Proprietary Company's
Indenture Act 1937 (the " 1937 Indenture ") and to an Indenture dated 4
September 1958 which Indenture is set out in the Schedule to the Broken Hill
Proprietary Company's Steel Works Indenture Act 1958 (the " 1958
Indenture ").
B By clause 18 of the
1937 Indenture BHP is permitted to assign its rights under the 1937 Indenture
and the Leases by the execution of a deed of assignment and assumption
substantially in the form of this Deed.
C By clause 31(5) of
the 1958 Indenture BHP is permitted to assign its rights under the 1958
Indenture and the Leases by the execution of a deed of assignment and
assumption substantially in the form of this Deed.
D By [ Insert details
of sale or other agreement between BHP and the Assignee ], BHP has agreed to
assign with effect from the Effective Date, its right and interest under the
1937 Indenture, the 1958 Indenture and the Leases to the Assignee and the
Assignee has agreed to accept that assignment and to assume BHP's obligations
and liabilities under the 1937 Indenture, the 1958 Indenture and the Leases.
E The parties are
entering into this Deed to effect the assignment and assumption referred to in
Recital D.
THE PARTIES AGREE as follows:
1. ASSIGNMENT AND ASSUMPTION
1.1 Effective Date
The Effective Date is [ Insert date ] or such other date on or after the date
of this Deed as is agreed in writing by BHP and the Assignee, and notified to
the State.
1.2 Deed applies from
Effective Date
All provisions of this Deed will have effect from and, if necessary, relate
back to the Effective Date, so as to have full force and effect on and from
that date.
1.3 Assignment and
Assumption
From the Effective Date:
(a) BHP
assigns to the Assignee all of its rights and interests under the Assigned
Instruments; and
(b) the
Assignee assumes all of BHP's obligations and liabilities under the Assigned
Instruments and will be bound by and comply with those provisions of the
Assigned Instruments which were, immediately prior to the Effective Date,
binding upon BHP.
2. THE STATE'S COVENANTS
2.1 Covenant
The Assignee covenants with the State that it will, from the Effective Date,
observe and perform the Assigned Instruments and be bound by all terms of the
Assigned Instruments which, but for this Deed, were to be performed by BHP.
2.2 Consent of the
State
In consideration of the promise contained in clause 2.1, the State consents to
the assignment to the Assignee of BHP's rights under the Assigned Instruments,
with effect from the Effective Date.
2.3 Release of BHP by
the State
(a) With
effect on and from the Effective Date, the State releases BHP from all its
obligations and liabilities under the Assigned Instruments and from all
actions, claims or proceedings that it may have against BHP under or in
respect of the Assigned Instruments.
(b)
Nothing in clause 2.3(a) relieves BHP of any obligations and liabilities
accrued under the Assigned Instruments prior to the Effective Date except to
the extent the Assignee discharges such obligations and liabilities.
2.4 Release of State
by BHP
(a) With
effect on and from the Effective Date, BHP releases the State from all its
obligations and liabilities under the Assigned Instruments and from all
actions, claims or proceedings that it may have against the State under or in
respect of the Assigned Instruments.
(b)
Nothing in clause 2.4(a):
(i)
relieves the State of any obligations and liabilities
accrued under the Assigned Instruments prior to the Effective Date except to
the extent such obligations and liabilities are discharged in favour of the
Assignee; or
(ii)
shall be taken to constitute a release by the Assignee of
any obligations and liabilities of the State.
3. MISCELLANEOUS PROVISIONS
3.1 Law and
Jurisdiction
The governing law of this Deed is the law of the State of South Australia, and
the parties submit to the non-exclusive jurisdiction of the Courts of South
Australia and to the courts which hear appeals from those courts.
3.2 Costs
Each party will bear its own legal costs of preparation and review of this
Deed. The Assignee will pay all stamp duty levied on this Deed.
3.3 Counterparts
This Deed may be executed in counterparts, which when taken together are one
instrument.
3.4 Interpretation
In this Deed:
(a) "
Assigned Instruments " means the 1937 Indenture, the 1958 Indenture and the
Leases.
(b) "
Leases " means all mineral and other leases and other proprietary rights held
by BHP which are referred to in, or granted pursuant to, the 1937 Indenture or
the 1958 Indenture.
(c) A
reference to the 1937 Indenture, the 1958 Indenture and the Leases is a
reference to those instruments and proprietary rights as they have been, or
are, amended from time to time.
EXECUTED by the parties as a Deed.
[ Insert Execution clauses ]