Exhibit 10.23
Amendment Deed to
Business Sale Agreement
The parties specified in Schedule 1
Asia Pacific Transport Pty Ltd
(Receivers and Managers Appointed)
(Subject to Deed of Company Arrangement)
Freight Link Pty Ltd
(Receivers and Managers Appointed)
(Subject to Deed of Company Arrangement)
GWA (North) Pty Limited
Genesee & Wyoming Inc.
Deutsche Bank Place
Corner Hunter and Phillip Streets
Sydney NSW 2000
Australia
Tel 61 2 9230 4000
Fax 61 2 9230 5333
www.aar.com.au
© Copyright Allens Arthur Robinson 2010
Amendment Deed to Business Sale Agreement |
Table of Contents
1. | Definitions and Interpretation | 3 | ||||||
1.1 | Definitions | 3 | ||||||
1.2 | Interpretation | 3 | ||||||
2. | Amendments | 4 | ||||||
3. | Remaining Provisions Unaffected | 4 | ||||||
4. | Sale Document | 4 | ||||||
Schedule 1 |
Amendment Deed to Business Sale Agreement |
| Date
|
| 27 October 2010 | |
| Parties
|
| ||
1. | The parties specified in schedule 1 (JV SPV Sellers); | |||
2. | Freight Link Pty Ltd (Receivers and Managers Appointed) (Subject to Deed of Company Arrangement) (ACN 093 011 628) of 1 Station Place, Hindmarsh, South Australia 5007 (FreightLink); | |||
3. | Asia Pacific Transport Pty Ltd (Receivers and Managers Appointed) (Subject to Deed of Company Arrangement) (ACN 082 501 942) of 1 Station Place, Hindmarsh, South Australia 5007 (APT); | |||
4. | GWA (North) Pty Limited (ACN 144 081 774) of 320 Churchill Road, Kilburn, South Australia 5084 (Purchaser); and | |||
5. | Genesee & Wyoming Inc of 66 Field Point Road, Suite 200, Greenwich, CT 06830, United States of America (Purchaser’s Guarantor). | |||
Recitals | ||||
A | The parties are parties to a business sale agreement dated 9 June 2010 under which APT, the JV SPV Sellers and FreightLink have agreed to sell the Business and the Business Assets and the Purchaser has agreed to purchase the Business and the Business Assets and the Purchaser’s Guarantor has agreed to guarantee the obligations of the Purchaser (thePrincipal Agreement). | |||
B | The parties wish to amend the Principal Agreement in the manner set out in this Deed.
|
It is agreed as follows.
1. | Definitions and Interpretation |
1.1 | Definitions |
Definitions in the Principal Agreement apply in this Deed unless the context requires otherwise.
1.2 | Interpretation |
Clauses 1.2, 1.3 and 23.8 to 23.13 inclusive of the Principal Agreement apply as if incorporated in this Deed.
3
Amendment Deed to Business Sale Agreement |
2. | Amendments |
The Principal Agreement is amended as follows.
(a) | (Clause 1.1) The definition of ‘Cut-Off Date’ in clause 1.1 is deleted and replaced with the following new definition. |
Cut-Off Date means 180 days from the date of this document.
3. | Remaining Provisions Unaffected |
Except as specifically amended by this Deed, the provisions of the Principal Agreement remain in full force and effect.
4. | Sale Document |
This deed is a Sale Document for the purposes of the Principal Agreement.
4
Amendment Deed to Business Sale Agreement |
Executedand delivered as a deed
Executed by Brown & Root Investments | ) | |||||
Pty Ltd (Receivers and Managers | ) | |||||
Appointed) by one of its joint and several | ) | |||||
receivers and managers Martin Madden or | ) | |||||
David Winterbottom: | ) | |||||
) | ||||||
SIGNATURE OF KATE CONNEELY | SIGNATURE OF MARTIN MADDEN | |||||
|
| |||||
Witness | Receiver and Manager | |||||
/s/ KATE CONNEELY | /s/ MARTIN MADDEN | |||||
|
| |||||
Name of Witness (print) | Name of Receiver and Manager (print) | |||||
ExecutedbyBrown & Root Investments | ) | |||||
(No.1) Pty Ltd (Receivers and Managers | ) | |||||
Appointed) by one of its joint and several | ) | |||||
receivers and managers Martin Madden or | ) | |||||
David Winterbottom: | ) | |||||
) | ||||||
SIGNATURE OF KATE CONNEELY | SIGNATURE OF MARTIN MADDEN | |||||
|
| |||||
Witness | Receiver and Manager | |||||
/s/ KATE CONNEELY | /s/ MARTIN MADDEN | |||||
|
| |||||
Name of Witness (print) | Name of Receiver and Manager (print) |
Amendment Deed to Business Sale Agreement |
Executed byGWA Northern Pty Ltd | ) | |||||
(Receivers and Managers Appointed) by | ) | |||||
one of its joint and several receivers and | ) | |||||
managers Martin Madden or David | ) | |||||
Winterbottom: | ) | |||||
SIGNATURE OF KATE CONNEELY
| SIGNATURE OF MARTIN MADDEN
| |||||
Witness | Receiver and Manager | |||||
/s/ KATE CONNEELY | /s/ MARTIN MADDEN | |||||
|
| |||||
Name of Witness (print) | Name of Receiver and Manager (print) | |||||
Executed byARG Sell Down No.1 Pty Ltd | ) | |||||
(Receivers and Managers Appointed) by | ) | |||||
one of its joint and several receivers and | ) | |||||
managers Martin Madden or David | ) | |||||
Winterbottom: | ) | |||||
SIGNATURE OF KATE CONNEELY
| SIGNATURE OF MARTIN MADDEN
| |||||
Witness | Receiver and Manager | |||||
/s/ KATE CONNEELY | /s/ MARTIN MADDEN | |||||
|
| |||||
Name of Witness (print) | Name of Receiver and Manager (print) | |||||
Executed byDarwin Rail No.1 Pty Limited | ) | |||||
(Receivers and Managers Appointed) by | ) | |||||
one of its joint and several receivers and | ) | |||||
managers Martin Madden or David | ) | |||||
Winterbottom: | ) | |||||
SIGNATURE OF KATE CONNEELY
Witness
/s/ KATE CONNEELY
Name of Witness (print) | SIGNATURE OF MARTIN MADDEN
Receiver and Manager
/s/ MARTIN MADDEN
Name of Receiver and Manager (print) |
Amendment Deed to Business Sale Agreement |
Executedby Darwin Rail No.3 Pty Limited | ) | |||||
(Receivers and Managers Appointed) by | ) | |||||
one of its joint and several receivers and | ) | |||||
managers Martin Madden or David | ) | |||||
Winterbottom: | ) | |||||
SIGNATURE OF KATE CONNEELY
Witness
/s/ KATE CONNEELY
Name of Witness (print) | SIGNATURE OF MARTIN MADDEN
Receiver and Manager
/s/ MARTIN MADDEN
Name of Receiver and Manager (print) | |||||
Executed byJohn Holland AD Investments | ) | |||||
Pty Ltd (Receivers and Managers | ) | |||||
Appointed) by one of its joint and several | ) | |||||
receivers and managers Martin Madden or | ) | |||||
David Winterbottom: | ) | |||||
) | ||||||
SIGNATURE OF KATE CONNEELY
Witness
/s/ KATE CONNEELY
Name of Witness (print) | SIGNATURE OF MARTIN MADDEN
Receiver and Manager
/s/ MARTIN MADDEN
Name of Receiver and Manager (print) |
Amendment Deed to Business Sale Agreement |
Executedby JH Rail Investments Pty Ltd | ) | |||||
(Receivers and Managers Appointed) by | ) | |||||
one of its joint and several receivers and | ) | |||||
managers Martin Madden or David | ) | |||||
Winterbottom: | ) | |||||
SIGNATURE OF KATE CONNEELY
Witness
/s/ KATE CONNEELY
Name of Witness (print) | SIGNATURE OF MARTIN MADDEN
Receiver and Manager
/s/ MARTIN MADDEN
Name of Receiver and Manager (print) | |||||
Executed byZelmex Pty Limited | ) | |||||
(Receivers and Managers Appointed) by | ) | |||||
one of its joint and several receivers and | ) | |||||
managers Martin Madden or David | ) | |||||
Winterbottom: | ) | |||||
SIGNATURE OF KATE CONNEELY
Witness
/s/ KATE CONNEELY
Name of Witness (print) | SIGNATURE OF MARTIN MADDEN
Receiver and Manager
/s/ MARTIN MADDEN
Name of Receiver and Manager (print) |
Amendment Deed to Business Sale Agreement |
Executedby Joetel Pty Limited (Receivers | ) | |||||
and Managers Appointed) by one of its | ) | |||||
joint and several receivers and managers | ) | |||||
Martin Madden or David Winterbottom: | ) | |||||
) | ||||||
SIGNATURE OF KATE CONNEELY
Witness
/s/ KATE CONNEELY
Name of Witness (print) | SIGNATURE OF MARTIN MADDEN
Receiver and Manager
/s/ MARTIN MADDEN
Name of Receiver and Manager (print) | |||||
Executed byMacmahon Rail Investments | ) | |||||
Pty Limited (Receivers and Managers | ) | |||||
Appointed) by one of its joint and several | ) | |||||
receivers and managers Martin Madden or | ) | |||||
David Winterbottom: | ) | |||||
) | ||||||
SIGNATURE OF KATE CONNEELY
Witness
/s/ KATE CONNEELY
Name of Witness (print) | SIGNATURE OF MARTIN MADDEN
Receiver and Manager
/s/ MARTIN MADDEN
Name of Receiver and Manager (print) |
Amendment Deed to Business Sale Agreement |
Executedby Thomco (No. 2021) Pty Ltd | ) | |||||
(Receivers and Managers Appointed) by | ) | |||||
one of its joint and several receivers and | ) | |||||
managers Martin Madden or David | ) | |||||
Winterbottom: | ) | |||||
SIGNATURE OF KATE CONNEELY
Witness
/s/ KATE CONNEELY
Name of Witness (print) | SIGNATURE OF MARTIN MADDEN
Receiver and Manager
/s/ MARTIN MADDEN
Name of Receiver and Manager (print) | |||||
Executed byS.A.N.T (MGT-UJV) Pty Ltd | ) | |||||
(Receivers and Managers Appointed) by | ) | |||||
one of its joint and several receivers and | ) | |||||
managers Martin Madden or David | ) | |||||
Winterbottom: | ) | |||||
SIGNATURE OF KATE CONNEELY
Witness
/s/ KATE CONNEELY
Name of Witness (print) | SIGNATURE OF MARTIN MADDEN
Receiver and Manager
/s/ MARTIN MADDEN
Name of Receiver and Manager (print) |
Amendment Deed to Business Sale Agreement |
Executedby S.A.N.T (TERM-UJV) Pty Ltd | ) | |||||
(Receivers and Managers Appointed) by | ) | |||||
one of its joint and several receivers and | ) | |||||
managers Martin Madden or David | ) | |||||
Winterbottom: | ) | |||||
SIGNATURE OF KATE CONNEELY
Witness
/s/ KATE CONNEELY
Name of Witness (print) | SIGNATURE OF MARTIN MADDEN
Receiver and Manager
/s/ MARTIN MADDEN
Name of Receiver and Manager (print) | |||||
Executed byNorthern Railway Aboriginal | ) | |||||
Investment Pty Ltd (Receivers and | ) | |||||
Managers Appointed), by one of its joint | ) | |||||
and several receivers and managers Martin | ) | |||||
Madden or David Winterbottom: | ) | |||||
) | ||||||
SIGNATURE OF KATE CONNEELY
Witness
/s/ KATE CONNEELY
Name of Witness (print) | SIGNATURE OF MARTIN MADDEN
Receiver and Manager
/s/ MARTIN MADDEN
Name of Receiver and Manager (print) |
Amendment Deed to Business Sale Agreement |
Executedby Central Railway Aboriginal | ) | |||||
Investment Pty Ltd (Receivers and | ) | |||||
Managers Appointed), by one of its joint | ) | |||||
and several receivers and managers Martin | ) | |||||
Madden or David Winterbottom: | ) | |||||
) | ||||||
SIGNATURE OF KATE CONNEELY
Witness
/s/ KATE CONNEELY
Name of Witness (print) | SIGNATURE OF MARTIN MADDEN
Receiver and Manager
/s/ MARTIN MADDEN
Name of Receiver and Manager (print) | |||||
Executed byNAM NT Rail Pty Limited | ) | |||||
(Receivers and Managers Appointed), by | ) | |||||
one of its joint and several receivers and | ) | |||||
managers Martin Madden or David | ) | |||||
Winterbottom: | ) | |||||
SIGNATURE OF KATE CONNEELY
Witness
/s/ KATE CONNEELY
Name of Witness (print) | SIGNATURE OF MARTIN MADDEN
Receiver and Manager
/s/ MARTIN MADDEN
Name of Receiver and Manager (print) |
Amendment Deed to Business Sale Agreement |
Executedby SIF Railway No. 1 Pty Limited | ) | |||||
(Receivers and Managers Appointed) by | ) | |||||
one of its joint and several receivers and | ) | |||||
managers Martin Madden or David | ) | |||||
Winterbottom: | ) | |||||
SIGNATURE OF KATE CONNEELY
Witness
/s/ KATE CONNEELY
Name of Witness (print) | SIGNATURE OF MARTIN MADDEN
Receiver and Manager
/s/ MARTIN MADDEN
Name of Receiver and Manager (print) | |||||
Executed byMemax Pty Limited | ) | |||||
(Receivers and Managers Appointed) by | ) | |||||
one of its joint and several receivers and | ) | |||||
managers Martin Madden or David | ) | |||||
Winterbottom: | ) | |||||
SIGNATURE OF KATE CONNEELY
Witness
/s/ KATE CONNEELY
Name of Witness (print) | SIGNATURE OF MARTIN MADDEN
Receiver and Manager
/s/ MARTIN MADDEN
Name of Receiver and Manager (print) |
Amendment Deed to Business Sale Agreement |
Executedby Nortfol Pty Limited (Receivers | ) | |||||
and Managers Appointed) by one of its | ) | |||||
joint and several receivers and managers | ) | |||||
Martin Madden or David Winterbottom: | ) | |||||
) | ||||||
SIGNATURE OF KATE CONNEELY
Witness
/s/ KATE CONNEELY
Name of Witness (print) | SIGNATURE OF MARTIN MADDEN
Receiver and Manager
/s/ MARTIN MADDEN
Name of Receiver and Manager (print) | |||||
Executed byAsia Pacific Transport Pty | ) | |||||
Ltd (Receivers and Managers Appointed) | ) | |||||
(Subject to Deed of Company | ) | |||||
Arrangement) by one of its joint and | ) | |||||
several receivers and managers Martin | ) | |||||
Madden or Jannamaria Robertson: | ) | |||||
) | ||||||
SIGNATURE OF KATE CONNEELY
Witness
/s/ KATE CONNEELY
Name of Witness (print) | SIGNATURE OF MARTIN MADDEN
Receiver and Manager
/s/ MARTIN MADDEN
Name of Receiver and Manager (print) |
Amendment Deed to Business Sale Agreement |
Executedby Freight Link Pty Ltd | ) | |||||
(Receivers and Managers Appointed) | ) | |||||
(Subject to Deed of Company | ) | |||||
Arrangement) by one of its joint and | ) | |||||
several receivers and managers Martin | ) | |||||
Madden or Jannamaria Robertson: | ) | |||||
SIGNATURE OF KATE CONNEELY
Witness
/s/ KATE CONNEELY
Name of Witness (print) | SIGNATURE OF MARTIN MADDEN
Receiver and Manager
/s/ MARTIN MADDEN
Name of Receiver and Manager (print) | |||||
Executed in accordance with section 127 of | ) | |||||
theCorporations Act 2001 byGWA (North) | ) | |||||
Pty Limited | ) | |||||
SIGNATURE OF ROBERT EASTHOPE
Company Secretary/Director
/s/ ROBERT EASTHOPE
Name of Company Secretary/Director (print) | SIGNATURE OF MARK W HASTINGS
Director
/s/ MARK W HASTINGS
Name of Director (print) | |||||
Signed for Genesee & Wyoming Inc by its | ) | |||||
Authorised Representative in the presence of | ) | |||||
) | ||||||
SIGNATURE OF ROBERT EASTHOPE
Witness
/s/ ROBERT EASTHOPE
Name of Witness (print) | SIGNATURE OF MARK W HASTINGS
Authorise Representative
/s/ MARK W HASTINGS
Name of Authorised Representative (print) |