by the
appropriate Transaction Entity after Completion will not constitute a Material
Adverse Change or Material Adverse Effect.
5.2
EFFECT OF TERMINATION
If this agreement is terminated under clause 2.5, clause 5.1 or clause 6.3(b),
then:
(A)
THE PARTIES WILL PROCURE THAT EACH
TRANSACTION AGREEMENT (IF PERMITTED BY THE TERMS OF THAT CONTRACT) WHICH HAS
ALREADY BEEN EXECUTED IS TERMINATED IN ACCORDANCE WITH ITS TERMS;
(B)
EACH PARTY IS RELEASED FROM ITS OBLIGATIONS
TO FURTHER PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE TRANSACTION
AGREEMENTS, EXCEPT THOSE EXPRESSED TO SURVIVE TERMINATION;
(C)
EACH PARTY RETAINS THE RIGHTS IT HAS AGAINST
THE OTHER IN RESPECT OF ANY BREACH OF THIS AGREEMENT OCCURRING BEFORE
TERMINATION;
(D)
THE BUYER MUST RETURN TO THE SELLER ALL
DOCUMENTS AND OTHER MATERIALS OBTAINED FROM THE SELLER IN ACCORDANCE WITH THE
TERMS OF THE CONFIDENTIALITY AGREEMENT; AND
(E)
THE RIGHTS AND OBLIGATIONS OF EACH PARTY
UNDER EACH OF THE FOLLOWING CLAUSES AND SCHEDULES WILL CONTINUE INDEPENDENTLY
FROM THE OTHER OBLIGATIONS OF THE PARTIES AND SURVIVE TERMINATION OF THIS
AGREEMENT:
(1)
CLAUSE 1 AND SCHEDULE 1 (DEFINITIONS AND
INTERPRETATION);
(2)
CLAUSE 4.7 (TERMINATION);
(3)
CLAUSE 18 (CONFIDENTIALITY AND
ANNOUNCEMENTS);
(4)
CLAUSE 19 (DUTIES, COSTS AND EXPENSES);
(5)
CLAUSE 20 (GST); AND
(6)
CLAUSE 23 (GENERAL).
5.3
NO OTHER RIGHT TO TERMINATE OR RESCIND
No party may terminate or rescind this agreement except as permitted under
clause 2.5, this clause 4.7 or clause 6.3(b).
12
6
COMPLETION
6.1
TIME AND PLACE
(A)
SUBJECT TO CLAUSES 4.7 AND 6.1(B),
COMPLETION MUST TAKE PLACE AT THE OFFICE OF FREEHILLS AT LEVEL 42, 101 COLLINS
STREET, MELBOURNE, AT 11:00 A.M. ON THE FIRST DAY WHICH IS:
(1)
IN A CALENDAR MONTH AFTER THE CALENDAR MONTH
IN WHICH COMPLETION OF THE HIVE OUT OCCURS; AND
(2)
BOTH THE LAST BUSINESS DAY OF A CALENDAR
MONTH AND WHICH IS AT LEAST 1 BUSINESS DAY AFTER SATISFACTION OR WAIVER OF THE
CONDITIONS IN CLAUSE 2.1,
or such other place, time and date as the Seller and Buyer agree.
(B)
THE PARTIES AGREE TO USE BEST ENDEAVOURS TO
ENSURE THAT COMPLETION WILL TAKE PLACE ON 30 NOVEMBER 2005 OR, IF THAT IS NOT
ACHIEVED, 30 DECEMBER 2005.
(C)
THE PARTIES AGREE TO COOPERATE WITH EACH
OTHER TO FACILITATE ANY REASONABLE ARRANGEMENT (INCLUDING ANY ARRANGEMENT THAT
DOCUMENTS BE HELD IN ESCROW AND ANY ARRANGEMENT THAT EFFECTIVE COMPLETION OCCUR
ON THE LAST BUSINESS DAY OF A CALENDAR MONTH WHERE COMPLETION OCCURS WITHIN 10
BUSINESS DAYS OF SUCH DAY) TO ENSURE COMPLETION CAN OCCUR IN ACCORDANCE WITH
CLAUSE 6.1(A) AND 6.1(B).
6.2
COMPLETION
(A)
ON OR BEFORE COMPLETION, EACH PARTY MUST
CARRY OUT THE COMPLETION STEPS REFERABLE TO IT IN ACCORDANCE WITH SCHEDULE 4.
(B)
COMPLETION IS TAKEN TO HAVE OCCURRED WHEN
EACH PARTY HAS PERFORMED ALL ITS OBLIGATIONS UNDER THIS CLAUSE 6 AND SCHEDULE 4.
6.3
NOTICE TO COMPLETE
(A)
IF A PARTY (DEFAULTING PARTY) FAILS TO
SATISFY ITS OBLIGATIONS UNDER CLAUSE 6.2 AND SCHEDULE 4 ON THE DAY AND AT THE
PLACE AND TIME FOR COMPLETION