Amendment Deed to Business Sale Agreement



 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 (the Principal 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
	  	





  
  

 

 Executed and 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)	  	
				
	Executed by Brown & 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 by GWA 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 by ARG 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 by Darwin 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
	  	





  
  

 


							
	Executed by 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 by John 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
	  	





  
  

 


							
	Executed by 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 by Zelmex 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
	  	





  
  

 


							
	Executed by 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 by Macmahon 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
	  	





  
  

 


							
	Executed by 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 by S.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
	  	





  
  

 


							
	Executed by 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 by Northern 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
	  	





  
  

 


							
	Executed by 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 by NAM 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
	  	





  
  

 


							
	Executed by 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 by Memax 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
	  	





  
  

 


							
	Executed by 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 by Asia 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
	  	





  
  

 


							
	Executed by 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 	  	)	  		  	
	the Corporations Act 2001 by GWA (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)