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EXHIBIT 10.1
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ALLENS
& HEDDERWICKS ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
GROUP
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V/LINE FREIGHT CORPORATION
(VLF)
AND
FREIGHT VICTORIA LIMITED
AND
RAILAMERICA, INC.
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SALE OF ASSETS AGREEMENT
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & HEDDERWICKS
Melbourne
Ref RLO:PJS
Tel ▇▇▇▇ ▇▇▇▇
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TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION.................................................1
1.1 Definitions...........................................................1
1.2 Interpretation.......................................................15
1.3 Consents or approvals................................................15
2. SALE OF PLANT AND EQUIPMENT...................................................16
3. PURCHASE PRICE................................................................17
4. COMPLETION....................................................................18
4.1 Time and venue.......................................................18
4.2 VLF's obligations....................................................18
4.3 Purchaser's obligations..............................................19
4.4 Duty.................................................................21
4.5 Interdependence of Completion........................................22
4.6 Approval of assignment...............................................22
5. PASSING OF PROPERTY...........................................................22
6. REGISTRATION OF OWNERSHIP.....................................................22
7. RISK..........................................................................22
8. EMPLOYEES.....................................................................22
9. SUPERANNUATION ARRANGEMENTS...................................................25
9.1 Members of the State Superannuation Fund.............................25
9.2 Members of the Victorian Superannuation Fund.........................27
9.3 Administrative arrangements..........................................29
9.4 Superannuation Adjustment............................................31
10. BOOK DEBTS....................................................................31
11. SUBSISTING ORDERS AND CONTRACTUAL OBLIGATIONS.................................31
12. SOFTWARE LICENCES.............................................................32
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13. HIRING AGREEMENTS.............................................................32
14. ADJUSTMENT OF OUTGOINGS.......................................................32
15. WARRANTIES AND ACKNOWLEDGMENTS................................................33
15.1 Purchaser warranties.................................................33
15.2 VLF warranties.......................................................35
15.3 Exclusion of other warranties and warranty claims....................35
15.4 Purchaser acknowledgments............................................37
16. CONTINUITY OF THE BUSINESS....................................................41
19. INTEREST ON DEFAULT...........................................................42
20. BOOKS AND RECORDS.............................................................43
21. ACCESS........................................................................43
22. CONFIDENTIALITY...............................................................43
22.1 General obligations..................................................43
22.2 Exceptions...........................................................44
23. CONSEQUENCES OF TERMINATION...................................................45
24. DUTIES, COSTS AND EXPENSES....................................................45
24.1 Payment of Duty......................................................45
24.2 Indemnity............................................................45
24.3 Costs and expenses...................................................45
25. NO MERGER.....................................................................45
26. ASSIGNMENT....................................................................45
27. FURTHER ASSURANCES............................................................46
28. ENTIRE AGREEMENT..............................................................46
29. NO WAIVER.....................................................................46
30. NOTICES.......................................................................46
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31. GUARANTEE.....................................................................47
31.1 Guarantee............................................................47
31.2 Liability unaffected by other events.................................48
31.3 Continuing guarantee and indemnity...................................48
32. GOVERNING LAW AND JURISDICTION................................................48
33. COUNTERPARTS..................................................................48
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SALE OF ASSETS AGREEMENT
THIS AGREEMENT is made on 22 February 1999 between:
1. V/LINE FREIGHT of ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ (trading as
V/Line Freight Corporation) (VLF);
2. FREIGHT VICTORIA LIMITED (ACN 075 295 644) incorporated in the
Australian Capital Territory of ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇; and
3. RAILAMERICA, INC. incorporated in Delaware of ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the GUARANTOR).
RECITALS
A. VLF is a body corporate established under the Rail Corporations ▇▇▇
▇▇▇▇ (Vic).
B. VLF, at the request of the Guarantor, has agreed to sell the Assets to
the Purchaser and the Purchaser has agreed to buy the Assets and enter
into the other Transaction Documents on the terms of this Agreement.
C. The Purchaser and the Guarantor acknowledge that the objectives of VLF
and, through it, the State, pursuant to this Agreement and the other
Transaction Documents include:
(a) to minimize VLF's and the State's exposure to residual risks
and liabilities associated with the Business, the Assets and
the property, rights and interests arising under or in
connection with the Transaction Documents;
(b) to facilitate the development of an expanding rail freight
industry in Victoria as a viable alternative to road
transport; and
(c) to secure a progressive improvement in the quality of
services available to freight customers in Victoria.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise:
ACCESS AGREEMENTS means:
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(a) an access agreement with VLP in the form set out in Annexure
1 and initialled by the parties for the purposes of
identification;
(b) an access agreement with Bayside Trains in the form set out
in Annexure 2 and initialled by the parties for the purposes
of identification;
(c) an access agreement with The Victorian Railway Corporation
Pty Ltd substantially in the form set out in Annexure 3 and
initialled by the parties for the purposes of identification;
(d) an access agreement with Hoys Roadlines Pty Ltd substantially
in the form set out in Annexure 4 and initialled by the
parties for the purposes of identification; and
(e) an access agreement with Great Northern Rail Services Pty Ltd
substantially in the form set out in Annexure 5 and
initialled by the parties for the purposes of identification.
ACTUAL REDUNDANCY COSTS means the aggregate redundancy costs incurred
by VLF, VRTC, PTC or the State in respect of employees of VLF, VRTC or
PTC identified in the Data Room as being in the pool of employees
available to be employed by the Purchaser who do not receive an
Employment Offer, calculated in accordance with the methodology set
out in Schedule 11.
ACCREDITATION means accreditation, as an operator of Rolling Stock and
as manager of the Intrastate Infrastructure, under Division 3 of Part
VI of the Transport ▇▇▇ ▇▇▇▇ (Vic).
ACTIVE MEMBER means a person who contributes to, or who is accruing
benefits in, a superannuation fund.
ADVERTISING MATERIAL means all advertising, sales and marketing
material used by VLF in connection with the Business.
ARBITRATOR means the Director or a person nominated by the Director
for the purpose of determining a dispute under Clause 2.2.
ARTC ACCESS AGREEMENTS means the access agreements between Australian
Rail Track Corporation and VLF substantially in the form set out in
Annexure 6 and initialled by the parties for the purposes of
identification.
ASSETS means the assets to be sold by VLF under Clause 2.
ASSET REGISTER means the asset register of any of VLF, PTC or VRTC.
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AUTHORISATION includes:
(a) any consent, authorisation, registration, filing, lodgement,
permit, franchise, agreement, notarisation, certificate,
permission, licence, approval, direction, declaration,
authority or exemption from, by or with a Governmental
Agency; or
(b) in relation to anything that would be fully or partly
prohibited or restricted by law if a Governmental Agency
intervened or acted in any way within a specified period
after lodgement, filing, registration or notification, the
expiry of that period without intervention or action.
BAYSIDE TRAINS means Met Train 1, a statutory corporation established
under the Rail Corporations ▇▇▇ ▇▇▇▇ (Vic).
BENEFICIARY'S ACCOUNT means an account established and maintained by
the Victorian Superannuation Board under Section 37B of the Public
Sector Superannuation (Administration) ▇▇▇ ▇▇▇▇ (Vic).
BOARD PAPERS means all documents made available to the directors of
VLF or any one or more of them or tabled at meetings of the board of
directors of VLF including periodic board papers, submissions,
minutes, letters and board committee and sub-committee papers.
BOOK DEBTS means all amounts owing or due to VLF at the time of
Completion for services or goods provided or supplied by VLF in or in
connection with the Business.
BUSINESS means the business of operating rail freight services and
services ancillary or incidental to rail freight services conducted by
VLF.
BUSINESS CONTRACTS means the agreements specified in Schedule 1 made
by VLF with its customers or suppliers or otherwise in connection with
the Business.
BUSINESS NAMES means the business, trade and brand names specified in
Part 1 of Schedule 2.
BUSINESS RECORDS means all books of account, accounts, records and
data and all other documents relating solely to the Business or the
Assets including maintenance records for the Rolling Stock but
excluding Board Papers.
COMMUNICATIONS SYSTEMS IMPLEMENTATION SERVICES AGREEMENT means the
communications systems implementation services agreement substantially
in the form set out in Annexure 7 and initialled by the parties for
the purposes of identification.
COMPLETION means the completion by the parties of the sale and
purchase of the Assets as provided in Clause 4.
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COMPLETION DATE means that date prior to 30 June 1999 (not being a
date earlier than eight weeks after the date of this Agreement)
notified in writing by VLF to the Purchaser not less than two weeks
prior to that date.
COMPLYING SUPERANNUATION FUND means a superannuation fund which is a
complying superannuation fund for the purposes of the Income Tax
Assessment ▇▇▇ ▇▇▇▇ (Cth).
CONTRACTS means:
(a) the Business Contracts;
(b) all contracts and orders referred to in Clause 11; and
(c) the benefit of the contracts and orders referred to in
paragraphs (a) and (b) (including VLF's property and interest
in and rights under those contracts and orders).
CORPORATIONS LAW means the Corporations Law of Australia.
DATA ROOM means the data room relating to the sale of the Business
situated at ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇.
DEED OF COVENANT means a deed of covenant in the form set out in
Annexure 8 and initialled by the parties for the purposes of
identification.
DEFAULT RATE means the aggregate of two per centum per annum and the
rate per annum specified from time to time under the Penalty Interest
Rates ▇▇▇ ▇▇▇▇ (Vic).
DEPOSIT means the amount referred to in Clause 3.2(a).
DIRECT AGREEMENTS means:
(a) a direct agreement between the Director and the Purchaser in
the form set out in Annexure 9 and initialled by the parties
for the purposes of identification; and
(b) a direct agreement between the Director and the Purchaser in
the form set out in Annexure 10 and initialled by the parties
for the purposes of identification.
DIRECTOR means the Director of Public Transport under the Transport
▇▇▇ ▇▇▇▇ (Vic).
DISCLOSED INFORMATION means:
(a) the Information Memorandum;
(b) the Invitation to Tender;
(c) the Environmental Report;
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(d) the Final Engineer's Report; and
(e) all information disclosed to the Purchaser or the Guarantor
or any person acting on behalf of or associated with the
Purchaser or the Guarantor by or on behalf of the State, VLF,
VRTC, PTC, any of the Passenger Rail Corporations or any
person acting on behalf of or associated with any of them or
which is otherwise acquired by or comes to the knowledge of
the Purchaser or the Guarantor or any person acting on behalf
of or associated with the Purchaser or the Guarantor directly
or indirectly from any of them, whether the information is in
oral, visual or written form or is recorded in any other
medium (including all information contained in the Data Room,
on CD-Rom or otherwise disclosed or made available to the
Purchaser or the Guarantor or any person acting on behalf of
or associated with the Purchaser or the Guarantor including
as a result of management presentations or question and
answer processes or sessions).
DUTY means any stamp, transaction or registration duty or similar
charge imposed by any government or Governmental Agency and includes
Victorian Duty and any interest, fine, penalty, charge or other amount
imposed in respect of any of them.
EBA has the meaning given to it in Clause 8.2.
ELECTROL AGREEMENT means an electrol agreement in the form set out in
Annexure 11 and initialled by the parties for the purposes of
identification.
EMPLOYMENT OFFER has the meaning given to it in Clause 8.1.
ENGINEERING SERVICES AGREEMENT means the engineering services
agreement between VRTC and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Pty Ltd dated 11
December 1998.
ENVIRONMENT includes the meaning given to that term at common law and
in any legislation in force in any State or Territory of Australia
(including any land, water, atmosphere, climate, sand, odour, taste,
the biological factors of animals and plants and the social factors of
aesthetics).
ENVIRONMENTAL LAW means any Law relating to the Environment including
any law relating to land use, planning, pollution of air, water, soil
or groundwater, chemicals, waste, the use of transport, the storage
and handling of dangerous goods, the health or safety of any person,
or any other matters relating to but not limited to the protection of
the Environment, health or property.
ENVIRONMENTAL REPORT means:
(a) the report in relation to the environmental assessment of the
Intrastate Infrastructure by CMPS&F Pty Limited titled
"V/Line Freight Corporation Environmental Assessment" and
dated October 1998; and
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(b) the report by CMPS&F Pty Limited titled "V/Line Freight
Corporation -- South Dynon Bulk Fuel Storage Area -- Baseline
Environmental Site Assessment July 1998".
ESTIMATED VICTORIAN DUTY means $300,000 (being the amount specified by
the Purchaser in the Final Bid as estimated Victorian Duty payable on
or in respect of the Transaction Documents and the deeds, instruments,
documents and transactions contemplated by them).
EXPECTED REDUNDANCY COSTS means $18,500,000 (being the amount
specified by the Purchaser in the Final Bid as expected redundancy
costs).
FACILITIES LEASES means:
(a) a lease of the South Dynon maintenance facility in the form
set out in Annexure 12 and initialled by the parties for the
purposes of identification;
(b) a lease of the Dynon container terminal in the form set out
in Annexure 13 and initialled by the parties for the purposes
of identification;
(c) a lease of the South Dynon refuelling point in the form set
out in Annexure 14 and initialled by the parties for the
purposes of identification;
(d) a license of part of Lot 69 at Dynon in the form set out in
Annexure 15 and initialled by the parties for the purposes of
identification;
(e) a license of Lot 86 at Dynon in the form set out in Annexure
16 and initialled by the parties for the purposes of
identification;
(f) leases of certain areas of certain railway stations in the
form set out in Annexure 17 and initialled by the parties for
the purposes of identification; and
(g) license of certain areas of certain railway stations in the
form set out in Annexure 18 and initialled by the parties for
the purposes of identification;
FAST TRACK SERVICES AGREEMENT means the fast track services agreement
between the Secretary of the Department of Infrastructure and VLF
dated 1 June 1998.
FINAL BID means the Purchaser's final bid to acquire the Business and
to enter into or otherwise become a party to or bound by the
Transaction Documents, lodged with the State on 25 January 1999 in
accordance with the Invitation to Tender.
FINAL ENGINEER'S REPORT means:
(a) the report in relation to the Intrastate Infrastructure dated
October 1998; and
(b) the report in relation to the Rolling Stock dated November
1998, both by TMG International Pty Ltd and together titled
"Engineering Report on V/Line Freight Corporation's Assets
and Infrastructure".
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GOODWILL means the goodwill of the Business including (but not limited
to):
(a) the Business Names; and
(b) any unregistered Trade Marks (including the goodwill
associated with them).
GOVERNMENTAL AGENCY means any Australian government or governmental,
semi-governmental, administrative, fiscal or judicial body, Minister,
office, department, commission, authority, tribunal, agency or entity.
GREAT NORTHERN LOCOMOTIVE FUEL AGREEMENT means the locomotive fuel
agreement between Great Northern Rail Services Pty Ltd. and VLF dated
31 October 1997.
HILLSIDE TRAINS means Met Train 2, a statutory corporation established
under the Rail Corporations ▇▇▇ ▇▇▇▇ (Vic).
HIRED PLANT AND EQUIPMENT means the plant and equipment and the motor
vehicles specified in Schedule 3.
HIRING AGREEMENTS means the agreements under which the Hired Plant and
Equipment is hired to VLF.
INFORMATION MEMORANDUM means the information memorandum titled "V/Line
Freight Information Memorandum" and dated September 1998 (including
any supplement to or replacement of it), issued by the State.
INFORMATION TECHNOLOGY SERVICES AGREEMENT means an information
technology services agreement between PTC and VLF in the form set out
in Annexure 19 and initialled by the parties for the purposes of
identification.
INFRASTRUCTURE MAINTENANCE AGREEMENTS means:
(a) an infrastructure maintenance agreement with Bayside Trains
in the form set out in Annexure 20 and initialled by the
parties for the purposes of identification; and
(b) an infrastructure maintenance agreement with Hillside Trains
in the form set out in Annexure 21 and initialled by the
parties for the purposes of identification.
INTANGIBLE ASSETS means:
(a) registered Trade Marks;
(b) the Know How;
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(c) the Technical Data;
(d) the Advertising Material (including VLF's copyright in it or
license to use it, if any);
(e) VLF's copyright (if any) in labelling and printing used by
VLF in connection with the Business; and
(f) all transferable licenses, permits, quotas, consents and
authorities held by VLF in connection with the Business.
INTELLECTUAL PROPERTY MANAGEMENT DEED means an intellectual property
management deed between PTC, VLF, VRTC and each of the Passenger Rail
Corporations in the form set out in Annexure 22 and initialled by the
parties for the purposes of identification.
INTEREST means interest calculated with monthly rests and compounded
on each monthly rest date.
INTRASTATE INFRASTRUCTURE means the infrastructure assets to be leased
by the Director to the Purchaser under the Primary Infrastructure
Lease.
INVITATION TO TENDER means the document titled "V/Line Freight
Invitation to Tender" and dated September 1998 (including any
supplement to or replacement of it), issued by the State.
KNOW HOW means all the knowledge and information (whether contained in
the Business Records or otherwise) which VLF has relating solely to
the Business.
LAWS means any statute, regulation, order, rule, subordinate
legislation or other document enforceable under a statute, regulation,
order, rule or subordinate legislation.
LIABILITIES means debts or liabilities of any kind, including those
which are prospective or contingent and those the amount of which is
not ascertained or able to be ascertained.
MAINTENANCE AGREEMENTS means:
(a) a maintenance agreement in respect of the Ballarat workshop
in the form set out in Annexure 23 and initialled by the
parties for the purposes of identification;
(b) a maintenance agreement in respect of the Geelong fuelling
point and locomotive maintenance facility in the form set out
in Annexure 24 and initialled by the parties for the purposes
of identification;
(c) a maintenance agreement in respect of the Bendigo locomotive
maintenance facility in the form set out in Annexure 25 and
initialled by the parties for the purposes of identification;
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(d) maintenance agreements in respect of the Newport workshop in
the form set out in Annexure 26 and initialled by the parties
for the purposes of identification;
(e) maintenance agreements in respect of mechanised track
maintenance in the form set out in Annexure 27 and initialled
by the parties for the purposes of identification;
(f) a maintenance agreement in respect of locomotive maintenance
to be provided by the Purchaser to VLP at South Dynon and
Wodonga in the form set out in Annexure 28 and initialled by
the parties for the purposes of identification.
MEMBER ELECTION DATE means the date on which a Superannuation Election
is made.
MISCELLANEOUS SERVICES AGREEMENTS means:
(a) miscellaneous services agreement between VLF and VLP in the
form set out in Annexure 29 and initialled by the parties for
the purposes of identifications;
(b) a miscellaneous services agreement between VLF and Bayside
Trains in the form set out in Annexure 30 and initialled by
the parties for the purposes of identifications;
(c) a miscellaneous services agreement between VLF and Hillside
Trains in the form set out in Annexure 31 and initialled by
the parties for the purposes of identification;
(d) a miscellaneous services agreement between VRTC and Bayside
Trains in the form set out in Annexure 32 and initialled by
the parties for the purposes of identification; and
(e) a services agreement between VLF and PTC dated in the form
set out in Annexure 33 and initialled by the parties for the
purposes of identification.
NATIONAL RAIL LOCOMOTIVE FUEL AGREEMENT means the locomotive fuel
agreement between National Rail Corporation Ltd and PTC dated 3 July
1996.
NATIONAL RAIL LOCOMOTIVE PROVISIONING AGREEMENT means the locomotive
provisioning agreement between National Rail Corporation Ltd and PTC
dated 20 January 1997.
NOMINATED EMPLOYEE has the meaning given to it in Clause 8.1.
OPERATIONAL CONTROL AND SIGNALLING SERVICES AGREEMENT means an
operational control and signalling services agreement with Bayside
Trains in the form set out in Annexure 34 and initialled by the
parties for the purposes of identification.
OPTIONAL FACILITY LEASE means a sub-lease of Level 1 of Transport
House in the form set out in Annexure 35 and initialled by the parties
for the purposes of identification.
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PASSENGER RAIL CORPORATIONS means:
(a) Bayside Trains;
(b) Hillside Trains;
(c) Swanston Trams;
(d) Yarra Trams; and
(e) VLP.
PERMITTED SECURITY INTEREST means:
(a) a Permitted Security Interest within the meaning of the
Primary Infrastructure Lease; or
(b) a Security Interest approved in writing by VLF.
PLANT AND EQUIPMENT means the motor vehicles, plant, equipment, tools,
furniture, fixtures and fittings specified in Schedule 4.
PRIMARY INFRASTRUCTURE LEASE means a lease of the Intrastate
Infrastructure in the form set out in Annexure 36 and initialled by
the parties for the purposes of identification.
PTC means Public Transport Corporation, a statutory corporation
established under the ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (▇▇▇) of ▇▇▇▇▇ ▇▇, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
PURCHASE PRICE means the purchase price specified in Clause 3.1.
PURCHASER means:
(a) Freight Victoria Limited (ACN 075 295 644); and
(b) if the context permits or requires in relation to any
obligation of the Purchaser under this Agreement, is taken to
include a reference to the Purchaser's Nominee and the
Purchaser's Employment Nominee.
PURCHASER'S EMPLOYMENT NOMINEE means a person nominated in writing by
the Purchaser and approved in writing by VLF for the purposes of
Clauses 8 and 9 of this Agreement.
PURCHASER'S NOMINEE means a person nominated in writing by the
Purchaser and approved in writing by VLF for the purpose of Clause 2
of this Agreement.
PURCHASER'S SCHEME means a Complying Superannuation Fund other than
the State Superannuation Fund, the Victorian Superannuation Fund or
Superannuation Trust of Australia of which the Purchaser or the
Purchaser's Employment Nominee is the employer sponsor or a
participating employer.
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RAC ACCESS AGREEMENT means the access agreement between Rail Access
Corporation and VLF substantially in the form set out in Annexure 37
and initialled by the parties for the purposes of identification.
REDUNDANCY BENEFIT means any payment or benefit paid or payable to an
employee of VLF, VRTC or PTC in connection with his or her redundancy
(however such payment or benefit is described) and includes separation
payments and any additional superannuation redundancy amount but does
not include any leave entitlement.
RELATED BODY CORPORATE has the meaning given in the Corporations Law.
ROLLING STOCK means the locomotives, wagons, power pack and rail
tractors specified in Schedule 6.
ROLLING STOCK HIRE AGREEMENTS means the rolling stock hire agreements
between VLF and VLP in the form set out in Annexure 38 and initialled
by the parties for the purposes of identification.
SECONDMENT AGREEMENTS means the secondment agreements between VLF and
VLP in the form set out in Annexure 39 and initialled by the parties
for the purposes of identification.
SECURITY INTEREST means an interest or power:
(a) reserved in or over any interest in any asset including,
without limitations any retention of title; or
(b) created or otherwise arising in or over any interest in any
asset under a ▇▇▇▇ of sale, mortgage, charge, lien, pledge,
trust or power,
by way of security for the payment of debt or any other monetary
obligation or the performance of any other obligation and whether
existing or agreed to be granted or created.
SERVICES AGREEMENTS means:
(a) a services agreement with The Victorian Railway Company Pty
Limited substantially in the form set out in Annexure 40 and
initialled by the parties for the purposes of identification;
(b) a scientific services agreement with PTC in the form set out
in Annexure 41 and initialled by the parties for the purposes
of identification; and
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(c) an engineering services agreement with PTC in the form set
out in Annexure 42 and initialled by the parties for the
purposes of identification.
SHARED INFRASTRUCTURE AGREEMENT means a shared infrastructure
agreement with Australian Rail Track Corporation in the form set out
in Annexure 43 and initialled by the parties for the purposes of
identification.
SHELL FUEL SUPPLY AGREEMENT means the fuel supply agreement between
The Shell Company of Australia Limited and VLF dated 29 June 1998.
SPARE PARTS means spare and rotable parts for the Rolling Stock.
SOFTWARE LICENCES means the software licences details of which are
specified in Schedule 6.
STATE means the State of Victoria.
STATE SUPERANNUATION FUND means the fund of that name established
under the State Superannuation Act 1988 (Vic) and the ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (Vic).
STOCK means all stock of the Business including all diesel fuel held
by VLF in storage tanks at the Portland locomotive and wagon
maintenance facility and at the Geelong locomotive depot, sleepers and
ballast but excluding Advertising Material.
SUPERANNUATION ELECTION means an election made by a Transferred
Employee as contemplated by Clause 9.1(a) or 9.2(a).
SUPERANNUATION ELECTION PERIOD means the period of three calendar
months commencing on the Completion Date.
SWANSTON TRAMS means Met Tram 1, a statutory corporation established
under the Rail Corporations ▇▇▇ ▇▇▇▇ (Vic).
TECHNICAL DATA means all drawings, specifications, formulae,
manufacturing processes, operating procedures and other technical data
relating solely to the Business.
TELECOMMUNICATIONS SERVICES AGREEMENT means a telecommunications
services agreement with VRTC in the form set out in Annexure 44 and
initialled by the parties for the purposes of identification.
TRADE MARKS means the trade marks the particulars of which are
specified in Part 2 of Schedule 2.
TRADE ▇▇▇▇ LICENCE means a trade ▇▇▇▇ licence with PTC in the form set
out in Annexure 45 and initialled by the parties for the purposes of
identification.
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TRAIN CONTROL AGREEMENT means a train control agreement with VRTC in
the form set out in Annexure 46 and initialled by the parties for the
purposes of identification.
TRANSACTION DOCUMENTS means this Agreement and:
(a) the Primary Infrastructure Lease;
(b) each of the Facilities Leases;
(c) each of the Access Agreements;
(d) each of the Maintenance Agreements;
(e) the Train Control Agreement,
(f) the Direct Agreements;
(g) the Shared Infrastructure Agreement;
(h) each of the Services Agreements;
(i) the Deed of Covenant;
(j) the Fast Track Services Agreement;
(k) the Engineering Services Agreement;
(l) the Communications Systems Implementation Services Agreement;
(m) the Intellectual Property Management Deed;
(n) the Information Technology Services Agreement;
(o) the National Rail Locomotive Provisioning Agreement;
(p) the Shell Fuel Supply Agreement;
(q) the Great Northern Locomotive Fuel Agreement;
(r) the National Rail Locomotive Fuel Agreement;
(s) each of the Miscellaneous Services Agreements;
(t) the Electrol Agreement;
(u) the ARTC Access Agreement;
(v) the RAC Access Agreement;
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(w) each of the Secondment Agreements;
(x) each of the Rolling Stock Hire Agreements;
(y) (subject to Clause 4.3(i)) the Optional Facility Lease;
(z) each of the Infrastructure Maintenance Agreements;
(aa) the Trade ▇▇▇▇ Licence;
(bb) the Telecommunications Services Agreement;
(cc) the Operational Control and Signalling Services Agreement;
and
(dd) each deed or agreement entered into by the Purchaser pursuant
to Clause 4.3(j).
TRANSFER AMOUNT BENEFIT means a transfer amount determined in
accordance with Section 9(4) of the Superannuation (Portability) ▇▇▇
▇▇▇▇ (Vic).
TRANSFERRED EMPLOYEE means an employee of VLF, VRTC or PTC who
receives and accepts an Employment Offer and who is employed by the
Purchaser following such acceptance.
VICTORIAN DUTY means any stamp, transaction or registration duty or
similar charge imposed by the State or any Governmental Agency of the
State and includes any interest, fine, penalty, charge or other amount
imposed in respect of any of them.
VICTORIAN SUPERANNUATION FUND means the fund of that name established
under the Public Sector Superannuation (Administration) ▇▇▇ ▇▇▇▇
(Vic), VLP means V/Line Passenger Corporation, a statutory corporation
established under the Rail Corporations ▇▇▇ ▇▇▇▇ (Vic).
VRTC means Victorian Rail Track, a statutory corporation established
under the Rail Corporations ▇▇▇ ▇▇▇▇ (Vic) of ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
VSB BENEFICIARY'S ACCOUNT means an account established and maintained
by the Victorian Superannuation Board under Section 37B of the Public
Sector Superannuation (Administration) ▇▇▇ ▇▇▇▇ (Vic).
YARRA TRAMS means Met Tram 2, a statutory corporation established
under the Rail Corporations ▇▇▇ ▇▇▇▇ (Vic).
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1.2 INTERPRETATION
Headings are for convenience only and do not affect interpretation.
The following rules apply unless the context requires otherwise.
(a) The singular includes the plural and conversely.
(b) A gender includes all genders.
(c) If a word or phrase is defined, its other grammatical forms
have a corresponding meaning.
(d) A reference to a person, corporation, trust, partnership,
unincorporated body or other entity includes any of them.
(e) A reference to a Clause, Schedule or Annexure is a reference
to a clause of, or a schedule or annexure to, this Agreement.
(f) A reference to an agreement or document (including, without
limitation, a reference to this Agreement) is to the
agreement or document as amended, varied, supplemented,
novated or replaced except to the extent prohibited by this
Agreement or that other agreement or document.
(g) A reference to a party means a party to this Agreement.
(h) A reference to a party to this Agreement or another agreement
or document includes the party's successors and permitted
substitutes or assigns (and, where applicable, the party's
legal personal representatives).
(i) A reference to legislation or to a provision of legislation
includes a modification or re-enactment of it, a legislative
provision substituted for it and a regulation or statutory
instrument issued under it.
(j) A reference to WRITING includes a facsimile transmission and
any means of reproducing words in a tangible and permanently
visible form.
(k) A reference to $ is a reference to Australian dollars.
(l) A reference to a right or obligation of any two or more
persons confers that right or imposes that obligation on all
of them jointly and on each of them severally.
1.3 CONSENTS OR APPROVALS
If the doing of any act, matter or thing under this Agreement is
dependent on the consent or approval of a party or is within the
discretion of a party, the consent or approval may be given or the
discretion may be exercised conditionally or unconditionally or
withheld by the party in its absolute discretion.
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2. SALE OF PLANT AND EQUIPMENT
2.1 VLF as legal and beneficial owner sells free from all Security
Interests and the Purchaser (or, if the Purchaser so nominates, the
Purchaser's Nominee) buys on the terms set out in this Agreement:
(a) the Plant and Equipment;
(b) the Rolling Stock;
(c) the Stock;
(d) the Spare Parts;
(e) the Book Debts;
(f) the Goodwill;
(g) the Intangible Assets;
(h) the Contracts, and
(i) each other asset used solely in the Business not specifically
referred to above.
2.2 (a) If, during the period of one year after the Completion Date,
the Purchaser reasonably forms the view that:
(i) an Asset used solely in the Business prior to
Completion has not been transferred to the Purchaser
as required in accordance with this Agreement; and
(ii) the market value of that Asset (as between a willing
but not anxious buyer and a willing but not anxious
seller on arm's length terms (MARKET VALUE)) exceeds
$1,000,000,
the Purchaser may give notice to VLF setting out full details
of that Asset (the DISPUTED Asset) and the basis for the view
so formed by the Purchaser.
(b) A notice under this Clause cannot be given after the end of
the period of one year after the Completion Date and during
that period a maximum of two notices may be given by the
Purchaser under this Clause.
(c) If a notice is given by the Purchaser to VLF under this
Clause and VLF and the Purchaser cannot agree the validity of
the claim made by the notice or on how that claim should be
resolved, VLF and the Purchaser must jointly refer the
dispute to the Arbitrator for determination.
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(d) Each party must provide the Arbitrator with reasonable access
to its books and records for the purpose of the Arbitrator
determining that dispute. The procedure to be adopted by the
Arbitrator for the purpose of determining the dispute will be
at the discretion of the Arbitrator.
(e) If the Arbitrator determines that a Dispute Asset was used
solely in the Business prior to Completion, that the market
value of the Disputed Asset exceeds $1,000,000 and that the
Disputed Asset has not been transferred to the Purchaser as
required by this Agreement, unless VLF and the Purchaser
agree otherwise VLF, within a reasonable period of time
following the Arbitrator's determination, must either (at its
discretion):
(i) cause the Disputed Asset to be transferred to the
Purchaser; or
(ii) pay to the Purchaser the market value of the
Disputed Asset (as determined by the Arbitrator).
(f) determination of the Arbitrator for the purpose of this
Clause 2.2 will be final and binding on the parties. The
costs of the Arbitrator in making that determination (as
certified by the Arbitrator) will be apportioned between VLF
and the Purchaser as determined by the Arbitrator or, if the
Arbitrator does not make a determination as to such
apportionment, will be borne by the Purchaser.
3. PURCHASE PRICE
3.1 The purchase price for the Assets is $73,400,000, subject to such
adjustments as are provided for in Clauses 2.2, 8.10, 9.4 and 14.2 of
this Agreement. The Purchase Price is allocated among the Assets as
set out in Schedule 12.
3.2 The Purchase Price must be paid by the Purchaser to or as directed by
VLF as follows:
(a) a deposit of $30,000,000 on the signing of this Agreement
(which VLF must place in an interest bearing deposit account
with a bank (within the meaning of the Banking ▇▇▇ ▇▇▇▇
(Cth)); and
(b) the balance on the Completion Date in accordance with Clause
4.3(a).
3.3 (a) The Deposit will vest absolutely in VLF on Completion
without the need for any order authorising such vesting or
any other notification whatsoever.
(b) If, prior to Completion, in accordance with Clause 18 VLF
lawfully terminates this Agreement because of a default in
observance or performance by the Purchaser or the Guarantor
of its obligations under this Agreement, then the Deposit
will vest absolutely in VLF without the need for any order
authorising such vesting or any other notification whatsoever
and VLF will, in its absolute discretion, be entitled to
exercise any rights and remedies available to it.
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(c) If, prior to Completion, in accordance with Clause 18 the
Purchaser lawfully terminates this Agreement because of a
failure or default in observance or performance by VLF of its
obligations under this Agreement, then the Deposit will vest
absolutely in the Purchaser without the need for any order
authorising such vesting or any other notification whatsoever
and the Purchaser will, in its absolute discretion, be
entitled to exercise any rights and remedies available to it.
(d) Interest which accrues on the Deposit will be deemed to form
part of the Deposit and will be dealt with as specified in
Clauses 3.3(a) to (c).
(e) For the purposes of this Clause 3.3, "INTEREST" means
interest earned on the Deposit less bank charges and other
moneys paid or payable in respect of the placement of the
Deposit in accordance with Clause 3.2(a).
4. COMPLETION
4.1 TIME AND VENUE
Completion will take place on the Completion Date at the offices of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Hedderwicks of ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ or at
such other place as VLF and the Purchaser may agree.
4.2 VLF'S OBLIGATIONS
At Completion VLF must deliver (or must procure that there is
delivered) to the Purchaser:
(a) releases of any Security Interests affecting the Assets from
all persons holding them;
(b) duly executed notices of disposition of all motor vehicles
(not including Rolling Stock) sold together with current
certificates of roadworthiness relating to them;
(c) duly executed transfers to the Purchaser of the Business
Names;
(d) a duly executed deed of assignment of the Book Debts (in the
form set out in Schedule 13 or in such other form as is
reasonably determined by VLF);
(e) a duly executed deed of assignment of the Trade Marks (in the
form set out in Schedule 14 or in such other form as is
reasonably determined by VLF), together with any certificates
of registration or applications for registration of them;
(f) subject to Clause 11.3, duly executed assignments of the
Business Contracts together with such consents of the other
parties to the Business Contracts as VLF has been able to
obtain;
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(g) subject to Clause 12.2, duly executed assignments of the
Software Licences together with such consents of the
licensors of the Software Licences as VLF has been able to
obtain;
(h) subject to Clause 13.2, duly executed assignments of the
Hiring Agreements together with such consents of the owners
of the Hired Plant and Equipment as VLF has been able to
obtain;
(i) such other duly executed deeds, instruments and documents, in
such form as VLF and the Purchaser agree, as may properly be
required to vest legal and beneficial ownership of all of the
Assets in the Purchaser;
(j) each item of Rolling Stock, Plant and Equipment, Hired Plant
and Equipment, Stock and Spare Parts at the place at which it
is located at the Completion Date or at such other place as
may be agreed between VLF and the Purchaser;
(k) such of the Technical Data and the Advertising Material as is
in its possession at the place or places at which it is
located at the Completion Date and in respect of the
remainder of the Technical Data and Advertising Material VLF
must direct the person or persons in whose possession it is
to make it available to the Purchaser on request;
(l) the Business Records at the piece or places at which they are
located at the Completion Date or at such other place as may
be agreed between VLF and the Purchaser; and
(m) a counterpart, duly executed by each person (other than the
Purchaser) who is expressed to be a party thereto, of each of
the documents referred to in Clauses 4.3(h) and (j) and, if
applicable, Clause 4.3(i).
4.3 PURCHASER'S OBLIGATIONS
At or prior to Completion the Purchaser must:
(a) pay to or as directed by VLF the balance of the Purchase
Price which is payable on the Completion Date, subject to
such adjustment as is provided for in Clauses 8.10 and 14.2
of this Agreement;
(b) pay to the State (or the State Revenue Office) the Estimated
Victorian Duty;
(c) deliver to the State a duly executed Deed of Covenant;
(d) deliver to VLF evidence satisfactory to it that the Purchaser
has obtained Accreditation;
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(e) deliver to VLF evidence satisfactory to it that the Purchaser
has effected insurance in accordance with the requirements of
Clause 24 of the Primary Infrastructure Lease;
(f) if required in accordance with Clause 21.4 of the Primary
Infrastructure Lease, deliver to the Director a letter of
credit which satisfies the requirements of Clause 21.4(b) of
the Primary Infrastructure Lease;
(g) deliver to VLF a copy of the constitution of the Purchaser
and of the Guarantor signed by a director or secretary of the
Purchaser for the purpose of identification;
(h) deliver to each of the persons (other than the Purchaser)
expressed to be a party thereto, a duly executed counterpart
of each of the following documents:
(i) the Primary Infrastructure Lease;
(ii) each of the Facilities Leases;
(iii) each of the Access Agreements;
(iv) each of the Maintenance Agreements;
(v) the Train Control Agreement;
(vi) each of the Direct Agreements;
(vii) the Shared Infrastructure Agreement;
(viii) the Electrol Agreement.
(ix) the Operational Control and Signalling Agreement;
(x) the Telecommunications Services Agreement;
(xi) each of the Infrastructure Maintenance Agreements;
(xii) each of the Services Agreements; and
(xiii) the Trade ▇▇▇▇ License;
(i) if not less than 30 days prior to the Completion Date the
Purchaser has given notice in writing to VLF that the
Purchaser proposes to enter into the Optional Facility Lease,
deliver to the persons (other than the Purchaser) expressed
to be a party thereto, a duly executed counterpart of the
Optional Facility Lease; and
(j) deliver to VLF duly executed deeds of assignment or novation
(in the form set out in Schedule 7 or in such other form as
is reasonably required by VLF) of each of the following deeds
or agreements:
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(i) the Fast Track Services Agreement;
(ii) the Engineering Services Agreement;
(iii) the Communications Systems Implementation Services
Agreement;
(iv) the Intellectual Property Management Deed;
(v) the Information Technology Services Agreement,
(vi) the National Rail Locomotive Provisioning Agreement;
(vii) the Shell Fuel Supply Agreement;
(viii) the Great Northern Locomotive Fuel Agreement;
(ix) the National Rail Locomotive Fuel Agreement;
(x) each of the Miscellaneous Services Agreements;
(xi) the ARTC Access Agreement;
(xii) the RAC Access Agreement;
(xiii) each of the Secondment Agreements; and
(xiv) each of the Rolling Stock Hire Agreements.
4.4 DUTY
(a) If the Victorian Duty payable by the Purchaser on or in
respect of the Transaction Documents and the deeds,
instruments, documents and transactions contemplated by them,
is greater than the Estimated Victorian Duty (excluding any
interest, fine, penalty, charge or other cost in respect of a
failure by the Purchaser to pay Victorian Duty on time or as
required) then the Purchase Price will be deemed to have been
reduced by the difference (and the Purchaser will be deemed
to have paid the Purchase Price reduced accordingly) and VLF
must procure that the State pays to the State Revenue Office,
on behalf of the Purchaser, the difference between that
Victorian Duty and the Estimated Victorian Duty.
(b) If the Victorian Duty payable by the Purchaser on or in
respect of the Transaction Documents and the deeds,
instruments, documents and transactions contemplated by them
(excluding, any interest, fine, penalty, charge or other cost
in respect of a failure by the Purchaser to pay Victorian
Duty on time or as required) is less than the Estimated
Victorian Duty, the State will be entitled to the difference
and, if so requested by VLF on behalf of the State, the
Purchaser must direct the State Revenue Office to pay the
difference to the State.
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4.5 INTERDEPENDENCE OF COMPLETION
Completion of the sale and purchase of each Asset is dependent on the
simultaneous completion of the sale and purchase of each other Asset.
4.6 APPROVAL OF ASSIGNMENT
If requested by VLF not less than seven days before the Completion
Date, the Purchaser will immediately make application to the other
party to any agreement which is to be assigned to the Purchaser under
this Agreement for approval to the assignment.
5. PASSING OF PROPERTY
Property in all of the Assets will pass to the Purchaser (and, in
particular, the Purchaser will become entitled to the benefit of the
Goodwill) on payment by the Purchaser to or as directed by VLF of the
amount payable on the Completion Date.
6. REGISTRATION OF OWNERSHIP
6.1 The cost of any notice of disposal and any roadworthiness certificate
required to be obtained in relation to any motor vehicle must be borne
by VLF. The costs of the preparation and lodging of any notices of
acquisition or other documents required to be lodged under the
relevant motor vehicle legislation and, subject to Clause 4.4, all
stamp and other duties payable with respect to the transfer of
ownership of the vehicles, must be borne by the Purchaser.
6.2 Following, Completion, the Purchaser must satisfy any law which
requires the Purchaser to register or give notice of its acquisition
of any Asset.
6.3 The Purchaser indemnifies VLF against any Liabilities which may be
incurred by or otherwise accrue to VLF in connection with any default
or delay by the Purchaser in complying with any requirement that the
Purchaser register or give notice of its acquisition of any Asset.
7. RISK
All Assets remain at the risk of VLF until property in the Assets
passes to the Purchaser.
8. EMPLOYEES
8.1 Within five weeks after the date of this Agreement (or such longer
period after the date of this Agreement as VLF may direct), the
Purchaser must make or must procure the Purchaser's Employment Nominee
to make an offer of employment (an EMPLOYMENT OFFER) to such of those
employees of VLF, VRTC and PTC identified in the Data Room as being in
the pool of employees available to be employed by the Purchaser as the
Purchaser or the Purchaser's Employment Nominee proposes to employ on
and from Completion. Each Employment Offer must comply with the
requirements of this Clause 8 and must be capable of acceptance by the
employee to whom it is made (the NOMINATED EMPLOYEE) at any time
within the period of two weeks after it is made.
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8.2 At least one week prior to making the Employment Offers, the Purchaser
must provide or must procure the Purchaser's Employment Nominee to
provide notice to VLF of the identity of each of the employees to whom
the Purchaser or the Purchaser's Employment Nominee intends to make
Employment Offers.
8.3 The Purchaser (for itself and for the Purchaser's Employment Nominee)
confirms that the Purchaser and the Purchaser's Employment Nominee
accepts the obligations under the provisions of the V/Line Freight
Corporation Enterprise Agreement 1997 as certified by the Australian
Industrial Relations Commission on 22 December 1997 (as varied from
time to time) (the EBA). For so long as the EBA remains in force, the
Purchaser or the Purchaser's Employment Nominee (as applicable) must
comply fully with such obligations in respect of each Transferred
Employee and must accord to each Transferred Employee the terms and
conditions of employment contained in the EBA except to the extent
that a new certified agreement is made between relevant unions and the
Purchaser or the Purchaser's Employment Nominee (as applicable) to
replace the terms of the EBA as provided for by the EBA.
8.4 Without limiting, Clause 8.3, each Employment Offer must be for
employment from the Completion Date on terms and conditions no less
favourable to the Nominated Employee than the terms and conditions on
which the Nominated Employee is employed immediately prior to the
Completion Date. The Purchaser further agrees to procure that each
Transferred Employee's service with VLF, VRTC, PTC or any Passenger
Rail Corporation (and any service with a previous employer recognised
by any of them) will count for all purposes as part of that employee's
service with the Purchaser or the Purchaser's Employment Nominee as
though there were a continuity of service in accordance with clause 9
of the EBA.
8.5 The Purchaser must consult and must procure the Purchaser's Employment
Nominee to consult with VLF, PTC and VRTC and staff industrial
representatives during the course of negotiations with the Nominated
Employees with respect to the Employment Offers.
8.6 VLF must release each Transferred Employee from his or her employment
on and from Completion.
8.7 Each party must use all reasonable endeavours to ensure that all of
the Nominated Employees accept the Employment Offers.
8.8 VLF is responsible for:
(a) the salary and wages (including any allowances or benefits)
of all the Transferred Employees for the period up to and
including the Completion Date, from which date the Purchaser
or the Purchaser's Employment Nominee will be responsible for
them; and
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(b) all taxes (including fringe benefits tax and payroll tax)
payable on the salary and wages (including any allowances or
benefits) of all the Transferred Employees in respect of the
period up to and including the Completion Date (whether such
taxes become due before, on or after the Completion Date).
Any necessary apportionment must be made and adjusted at Completion or
on such later date as the parties may agree.
8.9 Unless the application of this Clause (either generally or in a
particular case or cases) is expressly waived in writing by VLF, if
after Completion the Purchaser (which expression for the purposes of
this Clause includes the Purchaser's Employment Nominee and any
successor, assignee, Related Body Corporate or subcontractor of the
Purchaser or the Purchaser's Employment Nominee) hires as an employee
or otherwise engages the services of a person who at any time within
the period of 12 months prior to the Completion Date has been an
employee of VLF, VRTC, PTC or any Passenger Rail Corporation (other
than a Transferred Employee) and who within the period of three years
prior to such hiring or engagement his been paid Redundancy Benefits
by VLF, VRTC, PT'C, any Passenger Rail Corporation or the State, the
Purchaser must pay to or as directed by VLF in respect of each such
person an amount calculated in accordance with the following formula:
156-A x B
156
where A = the number of full weeks which have expired since the
Completion Date;
and B = the amount of the Redundancy Benefits paid to the
employee by VLF, VRTC, PTC, the State or any Passenger
Rail Corporation.
8.10 At Completion, the purchase price as set out in Clause 3.1 will be
adjusted as follows:
(a) if the Actual Redundancy Costs (as notified by VLF to the
Purchaser) are greater than the Expected Redundancy Costs,
the purchase price will be increased by an amount equal to
the amount by which the Actual Redundancy Costs exceed the
Expected Redundancy Costs; or
(b) if the Actual Redundancy Costs (as notified by VLF to the
Purchaser) are less than the Expected Redundancy Costs, the
purchase price-will be decreased by an amount equal to the
amount by which the Expected Redundancy Costs exceed the
Actual Redundancy Costs.
8.11 The Purchaser indemnities VLF against all clams for salary and wages
(including any allowances or benefits) and leave entitlements
(including sick, annual and long service-leave entitlements and
loadings) which are or may become payable to any Transferred Employee
under any contract of employment, award or statutory entitlement,
except as provided in Clause 8.8.
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8.12 The Purchaser must or must procure the Purchaser's Employment Nominee
to notify the Victorian WorkCover Authority as soon as practicable
after the Completion Date that it has become the employer of each of
the Transferred Employees and from the Completion Date the Purchaser
or the Purchaser's Employment Nominee will be liable to make the
weekly compensation payments (if any) payable under the Accident
Compensation Act 1985 (Vic) and the Accident Compensation (Workcover)
Insurance ▇▇▇ ▇▇▇▇ (Vic) in respect of the Transferred Employees.
9. SUPERANNUATION ARRANGEMENTS
9.1 MEMBERS OF THE STATE SUPERANNUATION FUND
The following provisions apply to each Nominated Employee who is
reasonably expected by VLF to be, on the Completion Date, an Active
Member of the State Superannuation Fund:
(a) The Purchaser must or must procure the Purchaser's Employment
Nominee to give to each such Nominated Employee, together
with his or her Employment Offer, an offer in respect of
superannuation arrangements on the following terms:
(i) the Nominated Employee will be entitled, if he or
she accepts the Employment Offer, to elect one of
the following, options:
(A) to continue after the Member Election Date
to be an Active Member of the State
Superannuation Fund; or
(B) to cease to be an Active Member of the
State Superannuation Fund and to join at
his or her election Superannuation Trust of
Australia or a Purchaser's Scheme (if the
Purchaser or the Purchaser's Employment
Nominee (as applicable) elects in its
absolute discretion to offer membership of
a Purchaser's Scheme), either:
(1) on the basis that such cessation
will take effect on and from the
Completion Date, and that he or
she will receive such resignation
or retirement benefit which the
Nominated Employee is entitled to
receive under the terms of the
State Superannuation Fund; or
(2) on the basis that such cessation
will take effect on and from the
Member Election Date, and that he
or she will receive a Transfer
Amount Benefit and elect for that
Transfer Amount Benefit to be
credited to a VSB Beneficiary's
Account, or to be transferred to
the fund which the Nominated
Employee has elected to join as
set out in his or her
Superannuation Election or to any
other Complying Superannuation
Fund nominated by him or her;
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(ii) an election referred to in paragraphs (a)(i)(A) and
(a)(i)(B)(2) of this sub-clause must be made not
later than the last day of the Superannuation
Election Period and an election referred to in
paragraph (a)(i)(B)(1) of this sub-clause must be
made on or prior to the Completion Date.
(b) Where a Nominated Employee:
(i) elects to continue to be an Active Member of the
State Superannuation Fund and becomes a Transferred
Employee, he or she will continue after the Member
Election Date to be an Active Member of the State
Superannuation Fund, and the Purchaser must or must
procure the Purchaser's Employment Nominee to make
employer contributions in respect of him or her as
provided in Clause 9.3(d);
(ii) elects to cease to be an Active Member of the State
Superannuation Fund and becomes a Transferred
Employee:
(A) VLF must, if the Transferred Employee has
elected to receive such resignation or
retirement benefit which the Transferred
Employee is entitled to receive under the
terms of the State Superannuation Fund, do
such acts and things as are necessary or
desirable to be done by it so as to permit
the Transferred Employee to receive such
benefit to which the Transferred Employee
is entitled;
(B) VLF must, if the Transferred Employee has
elected to receive a Transfer Amount
Benefit, do such acts and things as are
necessary or desirable to be done by it so
as to permit the Transferred Employee to
receive a Transfer Amount Benefit, and for
such Transfer Amount Benefit, in accordance
with the Superannuation Election made by
the Transferred Employee, to be credited to
a VSB Beneficiary's Account or transferred
to such other fund as is nominated for
these purposes by the Transferred Employee
in his or her Superannuation Election as
the case may be; and
(C) each of VLF and the Purchaser must (and the
Purchaser must procure the Purchaser's
Employment Nominee to) do such acts and
things as are necessary or desirable to be
done by it so as to enable the Transferred
Employee to become on and from the
Completion Date (if the relevant
Superannuation Election was made under
Clause 9.1(a)(i)(B)(1)) or the Member
Election Date (if the relevant
Superannuation Election was made under
Clause 9.1(a)(i)(B)(2)) a member of
Superannuation Trust of Australia, or of a
Purchaser's Scheme, in accordance with the
Superannuation Election. made by the
Transferred Employee:
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(iii) fails within the period referred to in Clause
9.1(a)(ii) to make a Superannuation Election and
becomes a Transferred Employee:
(A) each of VLF and the Purchaser must (and the
Purchaser must procure the Purchaser's
Employment Nominee to) do such acts and
things as are necessary or desirable to be
done by it so as to permit the Transferred
Employee to receive a Transfer Amount
Benefit calculated as at the last day of
the Superannuation Election Period and for
that benefit to be credited to a VSB
Beneficiary's Account; and
(B) each of VLF and the Purchaser must (and the
Purchaser must procure the Purchaser's
Employment Nominee to) do such acts and
things as are necessary or desirable to be
done by it so as to enable the Transferred
Employee to become on and from the first
day after the expiration of the
Superannuation Election Period (or as soon
as practicable thereafter) a member of
Superannuation Trust of Australia.
(c) VLF acknowledges that it is liable to pay to the State
Superannuation Fund all such contributions as are determined
by the Victorian Superannuation Board and approved by the
Minister of Finance on the advice of the actuary to the State
Superannuation Fund to be employer contributions payable in
respect of each Transferred Employee in respect of the
liability as at the Completion Date in respect of the period
prior to the Completion Date.
9.2 MEMBERS OF THE VICTORIAN SUPERANNUATION FUND
The following provisions apply to each Nominated Employee who is
reasonably expected by VLF to be, on the Completion Date, an Active
Member of the Victorian Superannuation Fund:
(a) The Purchaser must or must procure the Purchaser's Employment
Nominee to give to each such Nominated Employee, together
with his or her Employment Offer, an offer in respect of
superannuation arrangements on the following terms:
(i) the Nominated Employee will be entitled, if he or
she accepts the Employment Offer, to elect either:
(A) to continue after the Member Election Date
to be an Active Member of the Victorian
Superannuation Fund; or
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(B) to cease on and from the Member Election
Date to be an Active Member of the
Victorian Superannuation Fund and to join
at his or her election Superannuation Trust
of Australia, or a Purchaser's Scheme (if
the Purchaser or the Purchaser's Employment
Nominee (as applicable) elects in its
absolute discretion to offer membership of
a Purchaser's Scheme) and to elect that
such amount to which the Nominated Employee
is entitled under the terms of the
Victorian Superannuation Fund be held on
his or her behalf in the Victorian
Superannuation Fund, or that such amount be
transferred to the fund which the Nominated
Employee has elected to join as set out in
his or her Superannuation Election or to
any other Complying Superannuation Fund
nominated by him or her;
(ii) the election referred to in paragraph (a)(i) of this
sub-clause must be made not later than the last day
of the Superannuation Election Period.
(b) Where a Nominated Employee:
(i) elects to continue to be an Active Member of the
Victorian Superannuation Fund and becomes a
Transferred Employee, he or she will continue after
the Member Election Date to be an Active Member of
the Victorian Superannuation Fund and the Purchaser
must or must procure the Purchaser's Employment
Nominee to make employer contributions in respect of
him or her as provided in Clause 9.3(d);
(ii) elects to cease to be an Active Member of the
Victorian Superannuation Fund and becomes a
Transferred Employee:
(A) VLF must, if the Transferred Employee has
elected to receive an amount as
contemplated by Clause 9.2(a)(i)(B), do
such acts and things as are necessary or
desirable to be done by it so as to permit
the Transferred Employee to receive such
amount to which the Transferred Employee is
entitled under the terms of the Victorian
Superannuation Fund, and for such amount to
be dealt with in accordance with the
Superannuation Election made by the
Transferred Employee; and
(B) each of VLF and the Purchaser must (and the
Purchaser must procure the Purchaser's
Employment Nominee to) do such acts and
things as are necessary or desirable to be
done by it so as to enable the Transferred
Employee to become on and from the Member
Election Date a member of Superannuation
Trust of Australia, or of a Purchaser's
Scheme, in accordance with the
Superannuation Election made by the
Transferred Employee;
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(iii) fails within the period referred to in Clause
9.2(a)(ii) to make a Superannuation Election and
becomes a Transferred Employee, each of VLF and the
Purchaser must (and the Purchaser must procure the
Purchaser's Employment Nominee to) do such acts and
things as are necessary or desirable to be done by
it so as to enable the Transferred Employee to
continue, on and from the first day after the
expiration of the Superannuation Election Period, to
be an Active Member of the Victorian Superannuation
Fund.
9.3 ADMINISTRATIVE ARRANGEMENTS
(a) The Purchaser may or may procure the Purchaser's Employment
Nominee to, prior to the Completion Date, establish or
identify a Purchaser's Scheme which is able to accept as a
member any Transferred Employee who elects to join it. If the
Purchaser or the Purchaser's Employment Nominee (as
applicable) in its absolute discretion elects to establish or
identify a Purchaser's Scheme, the Purchaser must or must
procure the Purchaser's Employment Nominee to provide to each
Nominated Employee, together with the offer given pursuant to
Clause 9.1 or 9.2, such information regarding the Purchaser's
Scheme as would reasonably be required by a Nominated
Employee in order to make a decision as to whether to elect
to join that fund.
(b) If any Transferred Employee is on the Completion Date:
(i) an Active Member of the State Superannuation Fund,
then VLF must do, and must use reasonable endeavours
to procure that the Minister for Finance or the
Treasurer (as the case requires) will do, such acts
and things as are necessary or desirable to be done
by it, him or her so as to procure that the
Purchaser or the Purchaser's Employment Nominee (as
applicable) becomes an employing authority or a
transport authority in respect of the State
Superannuation Fund for the purposes of the State
Superannuation Act 1988 (Vic) or the ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (Vic) (as the case
requires); or
(ii) an Active Member of the Victorian Superannuation
Fund, then VLF must do, and must use reasonable
endeavours to procure that the Secretary to the
Department of Treasury and Finance will do, such
acts and things as are necessary or desirable to be
done by it, him or her so as to procure that the
Purchaser or the Purchaser's Employment Nominee (as
applicable) becomes a participating employer in
respect of the Victorian Superannuation Fund for the
purposes of the Public Sector Superannuation
(Administration) ▇▇▇ ▇▇▇▇ (Vic).
(c) The Purchaser acknowledges (for itself and for the
Purchaser's Employment Nominee) that, upon it or the
Purchaser's Employment Nominee (as applicable) becoming an
employing authority or transport authority in respect of the
State Superannuation Fund, or a participating employer in
respect of the Victorian Superannuation Fund, it will be
bound by the requirements of the legislation governing or
relevant to those funds, and that penalties apply under that
legislation in respect of failure to comply with those
requirements.
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(d) The Purchaser undertakes to VLF that it will and that it will
procure the Purchaser's Employment Nominee to, upon becoming
an employing authority or transport authority, in respect of
the State Superannuation Fund, or a participating employer in
respect of the Victorian Superannuation Fund, do in a timely
manner all such things as are required to be done by an
employing authority, transport authority or participating
employer (as the case may be), including without limitation:
(i) paying such employer contributions to the State
Superannuation Fund in respect of Transferred
Employees who are Active Members of the State
Superannuation Fund as are determined by the
Victorian Superannuation Board and, in the case of
determinations made by the Victorian Superannuation
Board for the purposes of the State Superannuation
Act 1988 (Vic), approved by the Minister of Finance
on advice of the actuary to the State Superannuation
Fund, to be employer contributions payable in
respect of each such Transferred Employee in respect
of the period commencing on the Completion Date and
ending on the earlier of the date on which the
Transferred Employee ceases to be an employee of the
Purchaser or the Purchaser's Employment Nominee or
ceases to be a member of the State Superannuation
Fund; and
(ii) paying such employer contributions to the Victorian
Superannuation Fund in respect of Transferred
Employees who are Active Members of the Victorian
Superannuation Fund as are sufficient to avoid the
imposition of superannuation guarantee charge
pursuant to the Superannuation Guarantee
(Administration) ▇▇▇ ▇▇▇▇ (Cth) and the
Superannuation Guarantee Charge ▇▇▇ ▇▇▇▇ (Cth) in
respect of each such Transferred Employee in respect
of the period commencing on the Completion Date and
ending on the earlier of the date on which the
Transferred Employee ceases to be an employee of the
Purchaser or of the Purchaser's Employment Nominee
or ceases to be an Active Member of the Victorian
Superannuation Fund.
(e) The Purchaser acknowledges that it has received from VLF and
has provided to the Purchaser's Employment Nominee a document
entitled "New Employer - Public Sector Superannuation
Contract Clauses" which describes certain administrative
requirements applying to the superannuation obligations of
the Purchaser and of the Purchaser's Employment Nominee in
respect of Transferred Employees, and the Purchaser
acknowledges that it will and that it will procure the
Purchaser's Employment Nominee to act in relation to those
superannuation obligations in a manner consistent with those
requirements. If there is any conflict between the provisions
of this Agreement and the contents of the document entitled
"New Employer - Public Sector Superannuation Contract
Clauses" the provisions of this Agreement will prevail.
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9.4 SUPERANNUATION ADJUSTMENT
If less than 100% of the Transferred Employees to whom Clause 9.1
applies elect by the last day of the Superannuation Election Period to
continue after their respective Member Election Dates to be Active
Members of the State Superannuation Fund, the Purchaser must pay to or
as directed by VLF, no later than the thirtieth day after the last day
of the Superannuation Election Period, the amount calculated in
accordance with Schedule 10.
10. BOOK DEBTS
If, after Completion, VLF receives any amount which is expressed to be
made in payment of any Book Debt, VLF must promptly pay it to the
Purchaser and in the meantime hold it on behalf of the Purchaser.
11. SUBSISTING ORDERS AND CONTRACTUAL OBLIGATIONS
11.1 As from Completion, the Purchaser is entitled to the benefit of the
Business Contracts and of:
(a) all contracts (other than contracts of a type specifically
dealt with elsewhere in this Agreement and any contracts for
the provision of financial accommodation to VLF) entered into
in the ordinary course of business by VLF in connection with
the Business and subsisting at Completion;
(b) all orders received by VLF in the ordinary course of business
for the supply of goods or services by the Business and
remaining unsatisfied at that time; and
(c) all orders placed by VLF in the ordinary course of business
for the supply of goods or services to the Business and
remaining unsatisfied at that time.
11.2 As from Completion, the Purchaser must assume responsibility for
performance of the Contracts and must indemnify VLF against all
Liabilities which may be incurred by VLF in relation to any breach of
or failure to fulfil any Contract occurring after Completion. Prior to
Completion, VLF must pay the amounts due and payable by it, and comply
with the other obligations binding, on it, under the Contracts.
11.3 Subject to VLF obtaining the consent of the other parties to the
Business Contracts (if required), on Completion VLF will assign the
Business Contracts to the Purchaser (in the form set out in Schedule 7
or in such other form as is reasonably determined by VLF) and the
Purchaser must accept those assignments. If such consent cannot be
obtained, VLF and the Purchaser must consult with a view to
determining an alternative method by which the transfer to the
Purchaser of VLF's rights under the relevant Business Contracts and
the assumption by the Purchaser of VLF's obligations to the other
parties to the Business Contracts, can in substance be achieved.
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12. SOFTWARE LICENCES
12.1 Prior to Completion, VLF must pay the amounts due and payable by it,
and comply with the other obligations binding, on it, under the
Software Licences,
12.2 Subject to VLF obtaining, the consent of the licensors of the Software
Licences (if required) on Completion VLF will assign the Software
Licences to the Purchaser (in the form set out in Schedule 8 or in
such other form as is reasonably determined by VLF) and the Purchaser
must accept those assignments. If such consent cannot be obtained, VLF
and the Purchaser must consult with a view to determining an
alternative method by which the transfer to the Purchaser of VLF's
rights under the relevant Software Licences and the assumption by the
Purchaser of VLF's obligations under the Software Licences, can in
substance be achieved.
13. HIRING AGREEMENTS
13.1 Prior to Completion VLF must pay the charges due and payable by it,
and comply with the other obligations binding on it, under the Hiring
Agreements.
13.2 Subject to VLF obtaining the consent of the owners of the Hired Plant
and Equipment (if required), on Completion VLF must assign the Hiring
Agreements to the Purchaser (in the form set out in Schedule 9 or in
such other form as is reasonably determined by VLF) and the Purchaser
must accept those assignments. If such consent cannot be obtained, VLF
and the Purchaser must consult with a view to determining an
alternative method by which the transfer to the Purchaser of VLF's
rights under the Hiring Agreements and the assumption by the Purchaser
of VLF's obligations under the Hiring Agreements, can in substance be
achieved.
13.3 As from Completion the Purchaser:
(a) must pay the charges provided for in, and comply with all
other obligations on the part of the hirer under, the Hiring
Agreements; and
(b) indemnifies VLF against all Liabilities which may be incurred
by VLF for any breach of or failure to fulfil any of the
Hiring Agreements occurring after Completion.
14. ADJUSTMENT OF OUTGOINGS
14.1 Except as otherwise expressly provided in this Agreement, all
outgoings of a periodical or recurring nature in respect of the
Business or any of the Assets must be borne by VLF for the period to
(and including) the Completion Date and after that by the Purchaser.
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14.2 Appropriate adjustments as at the Completion Date must be made on or
as soon as practicable after that date between VLF and the Purchaser
to give effect to the provisions of Clause 14.1.
15. WARRANTIES AND ACKNOWLEDGMENTS
15.1 PURCHASER WARRANTIES
Each of the Purchaser and the Guarantor represents and warrants to VLF
(who as a result has been induced to enter into this Agreement) that:
(a) (STATUS) It is a corporation duly incorporated and validly
existing under the laws of the place of its incorporation
specified in this Agreement.
(b) (POWER) It has the power to enter into and perform its
obligations under this Agreement and each other Transaction
Document, to carry out the transactions contemplated by this
Agreement and each other Transaction Document and to carry on
its business as now conducted or contemplated.
(c) (CONSTITUTION) Its constitution (produced to VLF at the date
of this Agreement and signed by a director or secretary of
the Purchaser for the purposes of identification) is its
constitution including all resolutions affecting it.
(d) (CORPORATE AUTHORISATIONS) It has taken all necessary
corporate action to authorise the entry into and performance
of this Agreement and each other Transaction Document and to
carry out the transactions contemplated by this Agreement and
each other Transaction Document.
(e) (DOCUMENT BINDING) This Agreement and each other Transaction
Document creates, or upon its entry into it will create,
valid and binding obligations and is enforceable in
accordance with its terms, subject to any necessary stamping
and registration.
(f) (TRANSACTIONS PERMITTED) The execution aid performance by it
of this Agreement and each other Transaction Document and
each transaction contemplated under them does not and will
not violate in any respect a provision of:
(i) a law or treaty or a judgment, ruling, order or
decree of a Governmental Agency binding on it;
(ii) its constitution; or
(iii) any other document or agreement that is binding on
it or its assets.
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(g) (LEGAL PROCEEDINGS)
(i) No suit, cause of action, proceeding, application,
claim or investigation is current, or, as far as it
is aware, pending, threatened or in prospect against
which may have a material effect on its performance
of its obligations under this Agreement.
(ii) No resolution has been passed for its winding up.
(iii) No resolution has been passed for the appointment of
an administrator to it.
(iv) There is no unsatisfied judgment against it which
may have a material effect on its performance of its
obligations under this Agreement.
(v) There are no facts, matters or circumstances that
give any person the right to apply to wind it up or
to appoint a controller within the meaning of
section 9 of the Corporations Law or an
administrator or an inspector under the Corporations
Law in respect of it or any part of its undertaken
or assets or income or to take any analogous or
equivalent step in any other jurisdiction.
(h) (AUTHORISATIONS) Each Authorisation that is required in
relation to:
(i) the execution, delivery and performance by it of
this Agreement, each other Transaction Document and
the transactions contemplated by them;
(ii) the validity and enforceability of this Agreement
and each other Transaction Document; and
(iii) its business as now conducted or contemplated to be
conducted from Completion and that is material
(including, under the Transport ▇▇▇ ▇▇▇▇ (Vic) and
under any Environmental Law),
has been obtained or effected and is in full force and
effect, or, in the case of' Accreditation, will be obtained
or effected and in full force and effect at and from
Completion. It has paid all applicable fees for each of them.
(i) (STATUTORY REQUIREMENTS)
(i) There are no notices of any Governmental Agency that
are or may be material to its business outstanding
against it.
(ii) All permits, licences and registrations necessary
for the conduct of its business are validly
subsisting and are held-by it.
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(iii) It has duly observed and complied in all respects
with the provisions of all Laws and all orders,
notices, awards and determinations made by any
Governmental Agency in any way relating to or
binding on it or any property owned or occupied by
it,
(j) (NO MISREPRESENTATION) All information provided by it to the
State or VLF (including, in the Final Bid) is true in all
material respects at the date of this Agreement or, if later,
when provided. Neither that information nor its conduct and
the conduct of anyone on its behalf in relation to the
transactions contemplated by this Agreement and the other
Transaction Documents was or is or will be misleading, by
omission or otherwise.
(k) (COPIES OF DOCUMENTS) All copies of documents (including its
latest audited accounts and all Authorisations) given by it
or on its behalf to the State or VLF (including in the Final
Bid) are true and complete copies. Those Authorisations all
are in full force and effect.
15.2 VLF WARRANTIES
Without limiting Clauses 15.3 or 15.4, VLF represents and warrants to
the Purchaser (who as a result has been induced to enter into this
Agreement) that:
(a) it has the power to enter into this Agreement and has taken
all necessary action to authorise the execution, delivery and
performance of this Agreement;
(b) this Agreement constitutes a legally valid and binding
obligation of VLF enforceable in accordance with its terms;
and
(c) the execution, delivery and performance of this Agreement
complies with:
(i) each law, regulation, authorisation, ruling,
judgement, order or decree of any Governmental
Agency which is binding on or applicable to VLF; and
(ii) any Security Interest or document which is binding
on VLF.
15.3 EXCLUSION OF OTHER WARRANTIES AND WARRANTY CLAIMS
To the maximum extent permitted by law and except as otherwise
provided in this Agreement all terms, conditions, warranties and
statements (whether express, implied, written, oral, collateral,
statutory or otherwise) which would be implied or incorporated into
this Agreement as having been given in favour of the Purchaser or the
Guarantor are excluded and VLF disclaims all liability in relation to
them.
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(a) Despite any other provision of this Agreement and except as
otherwise provided by law:
(i) VLF is not liable to make any payment (whether by
way of damages or otherwise) for any breach of any
representation, warranty, condition or obligation
unless a claim is made in writing by the Purchaser
(setting forth in reasonable detail the nature of
the claim and the damages sought) on or before the
date one year after the Completion Date;
(ii) VLF's liability for breach of any implied condition
or warranty in relation to any Asset is limited to
one or more of the following, as determined by VLF
in its absolute discretion:
(A) repair or replacement of the Asset;
(B) the cost of obtaining an equivalent Asset;
(C) paying the cost of having the Asset
repaired or replaced; or
(D) paying the cost of obtaining an equivalent
Asset,
provided that VLF will not be liable under this
clause to make payment of an amount which, in the
aggregate, exceeds the amount described in Clause
15.3(b)(iii);
(iii) subject to Clause 15.3(b)(iv) VLF will not be liable
for any breach of representation, condition,
obligation or warranty for an amount which would
exceed, in the aggregate, $1.00; and
(iv) VLF will not be liable for any breach of its
obligations set out in Clause 2 for an amount which
would exceed, in the aggregate, $5,000,000.
(b) If a claim is made by any person against the Purchaser or the
Guarantor which if satisfied or paid by the Purchaser or the
Guarantor would permit the Purchaser to make a claim against
VLF under this Agreement:
(i) the Purchaser or the Guarantor must immediately give
notice of the claim to VLF; and
(ii) VLF must within 30 days after receipt of that notice
either:
(A) cause the Purchaser or the Guarantor to be
put in sufficient funds to satisfy or pay
the claim; or
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(B) by notice to the Purchaser or the Guarantor
request the Purchaser or the Guarantor not
to satisfy or pay the claim in whole or in
part but at the expense and direction of
VLF to take such action (including, legal
proceedings) as VLF may direct to avoid,
dispute, defend, appeal or compromise the
claim and any adjudication of it and VLF
must also cause the Purchaser or the
Guarantor to be immediately put (and
afterwards maintained) in sufficient funds
in sufficient time to pay all reasonable
costs and expenses of the action directed
by VLF and (subject to this) the Purchaser
and the Guarantor must comply with the
directions of VLF.
(c) If the Purchaser or the Guarantor becomes aware of a claim or
potential claim the Purchaser or the Guarantor may have
against VLF with respect to any breach of any representation,
warranty or obligation the Purchaser or the Guarantor must
give notice of such claim to VLF within 21 days after
becoming so aware.
15.4 PURCHASER ACKNOWLEDGMENTS
(a) Each of the Purchaser and the Guarantor acknowledges that,
except as expressly set out in this Agreement, neither the
State, VLF, VRTC, PTC, the Passenger Rail Corporations nor
any person acting on behalf of or associated with any of them
has made any representation, given any advice or given any
warranty or undertaking of any kind in respect to any Plant
and Equipment, Rolling Stock, Hired Plant and Equipment,
Stock, Spare Parts, Hiring Agreements, Software Licences,
Contracts, Book Debts, Intangible Assets or the Goodwill or
otherwise in relation to or in connection with the Assets,
this Agreement, any of the other Transaction Documents or any
transaction or arrangement contemplated under any of them or
any other matter relevant to the Purchaser's or the
Guarantor's decision to enter into this Agreement or any of
the other Transaction Documents.
(b) Without limiting the Generality of Clause 15.4(a), each of
the Purchaser and the Guarantor acknowledges the following:
(i) the Disclosed Information (other than the Business
Records) and all intellectual property rights in the
Disclosed Information (other than the Business
Records) will remain the property of the State, VLF,
VRTC, PTC or a Passenger Rail Corporation (as the
case may be) at all times;
(ii) the Disclosed Information did not constitute an
invitation, offer or recommendation by or on behalf
of the State, VLF, VRTC, PTC or a Passenger Rail
Corporation;
(iii) the purpose of the Disclosed Information was to
provide the Purchaser with information to assist it
in preparing and lodging a proposal;
(iv) the Disclosed Information did not purport to contain
all of the information that the Purchaser or the
Guarantor required for the purpose of preparing and
lodging a proposal (including the Final Bid) or
making the decision to enter into this Agreement or
any of the other Transaction Documents and did not
purport to have been prepared having regard to the
Purchaser's or the Guarantor's business objectives,
financial situation or particular needs;
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(v) neither the State, VLF, VRTC, PTC, the Passenger
Rail Corporations nor any other person acting on
behalf of or associated with any of them has
verified the accuracy, reliability or completeness
of the Disclosed Information;
(vi) neither the State, VLF, VRTC, PTC, the Passenger
Rail Corporations nor any other person acting on
behalf of or associated with any of them has made
any representation or warranty either express or
implied as to the accuracy, reliability or
completeness of the Disclosed Information;
(vii) the Purchaser and the Guarantor has not relied in
any way on the skill or judgment of the State, VLF,
VRTC, PTC or the Passenger Rail Corporations or any
person acting on behalf of or associated with any of
them and has relied absolutely on its own opinion
and professional advice based upon its own
independent analysis, assessment, investigation and
appraisal in deciding to tender a proposal and enter
into this Agreement and each of the other
Transaction Documents;
(viii) the Purchaser and the Guarantor has carried out all
relevant investigations and has examined and
acquainted itself concerning:
(A) the contents, correctness and sufficiency of
the Disclosed Information;
(B) all information which is relevant to the
risks, contingencies and other
circumstances which could affect its
decision to enter into this Agreement and
each of the other Transaction Documents;
and
(C) all amounts payable between the parties to
this Agreement and the other Transaction
Documents;
(ix) on the basis that the Disclosed Information has been
given in good faith and that neither the State, VLF,
VRTC, PTC nor any, Passenger Rail Corporation has
any knowledge that any part of the Disclosed
Information is misleading or deceptive (but
acknowledging that none of the State, VLF, VRTC,
PTC, any Passenger Rail Corporation or any person
acting on behalf of or associated with any of them
is under any obligation to make and that none of
them has made enquiries to verify that state of
knowledge), any statement, representation, term,
warranty. condition, promise or undertaking made,
given or agreed to by the State, VLF, VRTC, PTC, a
Passenger Rail Corporation or any person acting on
behalf of or associated with any of them in any
prior negotiation, arrangement, understanding or
agreement has no effect except to the extent
expressly set out or incorporated in this Agreement
or another Transaction Document; and
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(x) the acknowledgments under this Clause 15.4(b) are in
addition to and do not replace the terms and
conditions already agreed to or accepted by the
Purchaser and the Guarantor when receiving, the
Disclosed Information.
(c) Each of the Purchaser and the Guarantor acknowledges that no
representation or warranty is made by the State, VLF, VRTC,
PTC or any Passenger Rail Corporation (nor has the State,
VLF, VRTC, PTC or any Passenger Rail Corporation any
liability whatsoever to the Purchaser or the Guarantor) in
relation to:
(i) the apportioned value ascribed or to be ascribed to
any of the Assets for the purposes of taxation,
including depreciation, amortisation, capital gains
or otherwise; or
(ii) the basis on which any allowance or deduction for
depreciation of any of the items of Assets may be
calculated or allowed to the Purchaser for taxation
purposes.
(d) Each of the Purchaser and the Guarantor acknowledges that no
representation or warranty is made by the State, VLF, VRTC,
PTC or any Passenger Rail Corporation (nor has the State,
VLF, VRTC, PTC or any Passenger Rail Corporation any
liability whatsoever to the Purchaser or the Guarantor) in
relation to any defects in the computer hardware, software,
networks, data storage devices, peripherals, data stored in
electronic form and other information technology forming part
of or used in the Assets or the Business, including any
defect due to the problem commonly known as the Year 2000
problem.
(e) Each of the Purchaser and the Guarantor acknowledges that no
representation or warranty is made by the State, VLF, VRTC,
PTC or any Passenger Rail Corporation (nor has the State,
VLF, VRTC, PTC or any Passenger Rail Corporation any
liability whatsoever to the Purchaser or the Guarantor) in
relation to:
(i) the existence of any Stock or Spare Parts;
(ii) the state of maintenance, state of repair, condition
or serviceability of any item of Plant and
Equipment, Stock or Spare Parts;
(iii) compliance with any Authorisation in relation to the
use or operation of any item of Plant and Equipment,
Stock or Spare Parts;
(iv) the quality, fitness or suitability of any item of
Plant and Equipment, Stock or Spare Parts;
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(v) the safety of any item of Plant and Equipment, Stock
or Spare Parts; or
(vi) the accuracy, reliability or completeness of the
Asset Register, including whether:
(A) all items of Plant and Equipment, Stock or
Spare Parts are contained in the Asset
Register;
(B) items in the Asset Register are Assets to
be sold by VLF to the Purchaser under
Clause 2; or
(C) the Plant and Equipment, Stock or Spare
Parts correspond to any description in the
Asset Register.
(f) Each of the Purchaser and the Guarantor warrants to the
State, VLF, VRTC, PTC and each Passenger Rail Corporation
that in entering, into this Agreement and each other
Transaction Document, the Purchaser and the Guarantor is
aware that the State, VLF, VRTC, PTC and the Passenger Rail
Corporations have relied on the acknowledgments contained in
this Clause 15.4 in entering into this Agreement and each of
the other Transaction Documents.
(g) To the extent permitted by law, each of the Purchaser and the
Guarantor expressly waives any right which it has (whether at
the date of this Agreement or otherwise) to bring any action
or make any claim against the State, VLF, VRTC, PTC or any
Passenger Rail Corporation or any person acting on behalf of
or associated with any of them arising (directly or
indirectly) out of any alleged misrepresentation or
misleading or deceptive conduct on the part of the State,
VLF, VRTC, PTC or any Passenger Rail Corporation or any
person acting on behalf of or associated with any of them in
providing the Disclosed Information or in connection with
this Agreement or any other Transaction Document.
(h) The Purchaser indemnities the State, VLF, VRTC, PTC and each
Passenger Rail Corporation and will hold each of those
parties harmless against all claims, proceedings, costs,
expenses, loss, liability or damage that any of them may
sustain or incur as a result of or in connection with
(whether directly or indirectly) any breach of this Clause
15.4 by the Purchaser or the Guarantor including, any breach
of a warranty given by the Purchaser for the Guarantor under
this Clause 15.4.
(i) Each of the Purchaser and the Guarantor acknowledges that
this Clause 15.4 is intended to benefit and is to be
interpreted as benefiting the State, VLF, VRTC, PTC and each
Passenger Rail Corporation to the extent that this Clause
15.4 applies to them and is to be enforceable by them against
the Purchaser and the Guarantor accordingly. VLF holds the
benefit of the Purchaser's and the Guarantor's
representations, warranties, acknowledgments and agreements
under this Clause 15.4 on trust for the State, VRTC, PTC and
each Passenger Rail Corporation to the extent that this
Clause 15.4 applies to them.
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(j) Each of the Purchaser and the Guarantor acknowledges that all
of its representations, warranties, acknowledgments and
agreements under this Clause 15 survive the execution and
delivery of this Agreement and the completion of the
transactions contemplated by it.
16. CONTINUITY OF THE BUSINESS
16.1 VLF covenants with the Purchaser that prior to Completion it will
carry on the Business in the usual and ordinary course as it is
carried on by VLF at the date of this Agreement and prior to
Completion it will do all things reasonably necessary to preserve the
Goodwill, taking into account the transactions contemplated and the
obligations imposed on VLF by this Agreement.
16.2 Without limiting Clause 16.1, VLF covenants with the Purchaser that
prior to Completion VLF will not:
(a) enter into, terminate or alter the term of any Business
Contract or other Contract where the obligation of either
party under that Contract is to pay to the other an amount in
aggregate exceeding $350,000;
(b) other than pursuant to any Contract subsisting at the date of
this Agreement and disclosed in the Disclosed Information,
incur any liability the amount of which exceeds $350,000; or
(c) dispose of, agree to dispose of, encumber or grant an option
over any of the Assets or any interest in them other than in
the ordinary course of business, in each case without the
Purchaser's prior written consent (which must not be
unreasonably withheld).
16.3 VLF agrees that, prior to Completion, it will (at the expense and risk
of the Purchaser) provide the Purchaser with reasonable access during
business hours to VLF's premises to:
(a) observe the conduct of the Business; and
(b) examine records, property and affairs of VLF relating to the
Business (excluding, Board Papers),
provided that:
(i) on each occasion on which access is required, the
Purchaser provides VLF with reasonable prior notice
of the access that the Purchaser requires (including
the identity of the persons who are to exercise that
right of access on behalf of the Purchaser); and
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(ii) such access will not, in VLF's reasonable opinion,
interfere with the conduct of the Business.
17. METHOD OF PAYMENT
All payments required to be made under this Agreement must be tendered
either in Australian dollars in cash or by bank cheque, direct credit
or in such other immediately available funds as may be agreed in
writing between VLF and the Purchaser.
18. TIME
18.1 Time is of the essence of this Agreement. However neither VLF nor the
Purchaser is at liberty to exercise any right or remedy (other than
those set out in Clause 19) arising out of the default of the other in
performing or observing any of the terms of this Agreement unless:
(a) notice is given to the other party specifying the default and
stating the intention of the party giving the notice to
enforce its rights and remedies if the default is not made
good and the proper legal costs incurred by it as a result of
the default are not paid within the period specified in the
notice (being not less than 14 days from the giving of the
notice); and
(b) the other party fails within that period to remedy the
default and pay those costs.
18.2 If a notice is given under Clause 18.1 prior to the Completion Date
which states that unless the default is remedied and the costs paid,
the Agreement will be treated as having been repudiated by the party
in default and the default is not remedied and the costs are not paid
within the period specified in the notice, then the Agreement will be
deemed to have been repudiated on the expiration of that period.
19. INTEREST ON DEFAULT
19.1 If any party defaults for more than seven days in payment of any money
payable under this Agreement that party must, if demand is made, pay
Interest on the amount in default until that amount has been paid in
full.
19.2 Interest will accrue daily at the Default Rate for each day from the
date on which the amount became due and payable until such amount (and
all Interest accrued on it) is paid in full, and is payable on the
date payment of the amount is made.
19.3 The right to require payment of Interest under this Clause is without
prejudice to any other rights and remedies of the party requiring that
payment in respect of the default.
19.4 If a liability under this Agreement becomes merged in an order or
judgment of a court of competent jurisdiction, the party obliged to
make payment in respect of the default must pay Interest on the amount
of that liability as an independent obligation. This Interest accrues
from the date the liability becomes due for payment (after or at the
time of the order or judgment) until it is paid, at a rate that is the
higher of the rate payable under the order or judgment and the Default
Rate.
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20. BOOKS AND RECORDS
All Business Records will become the property of the Purchaser from
Completion except to the extent they are required by law to be kept by
VLF. VLF will provide the Purchaser with a copy of Business Records
required by law to be kept by VLF, upon reasonable notice from the
Purchaser to VLF. The Purchaser acknowledges that Board Papers remain
the property of VLF after Completion and that VLF is not obliged to
provide a copy of any Board Papers to the Purchaser.
21. ACCESS
(a) The Purchaser acknowledges and agrees that VLF has continuing
reporting obligations under the Financial Management ▇▇▇ ▇▇▇▇
(Vic) and the Auditor-General has obligations in respect of
VLF under the Audit ▇▇▇ ▇▇▇▇ (Vic). Accordingly, the
Purchaser must ensure from Completion until 1 January 2001
that VLF, the Auditor-General and his officers and employees
and any representative of the State nominated by the
Treasurer are granted access without charge on reasonable
notice at all reasonable times to:
(i) those employees of the Purchaser and other persons
employed or engaged in the conduct of the business
after Completion whose knowledge or information is
needed by VLF, the Auditor-General or the State; and
(ii) to all books, records and other data pertaining to
VLF, the Business, the Assets, this Agreement or any
other Transaction Document and which are referable
to the period on and before Completion,
to enable VLF, the Auditor-General and the State to comply
with their respective obligations under or in respect of the
Financial Management ▇▇▇ ▇▇▇▇ (Vic) and the Audit ▇▇▇ ▇▇▇▇
(Vic).
(b) After Completion the Purchaser must allow VLF to have access
on reasonable notice at all reasonable times to the Business
Records (and to take extracts from or copies of them) if such
access reasonably is required by VLF for or in connection
with this Agreement or any other Transaction Document.
22. CONFIDENTIALITY
22.1 GENERAL OBLIGATIONS
The parties to this Agreement must keep confidential and not allow,
make or cause any disclosure of or in relation to:
(a) any Disclosed Information;
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(b) the terms of this Agreement or any other Transaction
Document; and
(c) any documents which are or information which is confidential
under this Agreement, without the prior written consent of
each of the other parties.
22.2 EXCEPTIONS
The parties' obligations in Clause 22.1 do not apply to disclosures to
the extent that the disclosure is:
(a) by a party to its legal and other professional advisers,
auditors or other consultants (consultants) or employees of
that party or that party's Related Bodies Corporate requiring
the information for the purposes of this Agreement or any
other Transaction Document (or any transactions contemplated
by any of them) or for the purposes of advising that party in
relation thereto;
(b) of information which is at the time lawfully in the
possession of the proposed recipient of the information
through sources other than a party;
(c) required by law or by a lawful requirement of any
Governmental Agency having jurisdiction over a party or its
Related Bodies Corporate;
(d) required by a lawful requirement of any stock exchange having
jurisdiction over a party or its Related Bodies Corporate;
(e) required in connection with legal proceedings, arbitration or
expert determination relating to this Agreement or any other
Transaction Document or for the purpose of advising a party
in relation thereto;
(f) of information which is at the time generally and publicly
available other than is result of breach of confidence by the
party wishing to disclose the information;
(g) necessary or commercially desirable to an existing or bona
fide proposed or prospective financier, however, the party
wishing to disclose the information must, if requested by
another party, procure that the proposed recipient of the
information executes a confidentiality deed in favour of the
other parties prior to the disclosure of the confidential
information;
(h) to the Crown in right of the State of Victoria or any
minister, officer, employee, agent, adviser or consultant of
the State or any of its Governmental Agencies or
instrumentalities; or
(i) contemplated by Clause 21.
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23. CONSEQUENCES OF TERMINATION
23.1 Termination of this Agreement for whatever cause is without prejudice
to any rights or obligations which may have accrued to, or be owing
by, a party at or prior to such termination.
23.2 Clauses 1, 15, 17, 19, 22, 24, 31, 32, and this Clause 23 continue to
apply after termination of this Agreement.
24. DUTIES, COSTS AND EXPENSES
24.1 PAYMENT OF DUTY
Subject to Clause 4.4, the Purchaser must pay:
(a) any Duty in respect of the execution, delivery and
performance of this Agreement the other Transaction Documents
and the deeds, instruments, documents and transactions
contemplated by them; and
(b) any interest, fine, penalty, charge or other amount in
respect of a failure to pay any Duty on time or as required.
24.2 INDEMNITY
The Purchaser indemnifies VLF against any amount payable by the
Purchaser under Clause 24.1.
24.3 COSTS AND EXPENSES
Subject to Clause 24.1, each party must pay its own costs and expenses
in respect of the negotiation, preparation, execution, delivery,
registration and performance of this Agreement and the other
Transaction Documents and the deeds, instruments, documents and
transactions contemplated by them.
25. NO MERGER
The rights and obligations of the parties will not merge on the
completion of any transaction contemplated by this Agreement. They
will survive the execution and delivery of any assignment or other
document entered into for the purpose of implementing any such
transaction.
26. ASSIGNMENT
(a) The Purchaser must not assign, encumber or otherwise dispose
of or deal with its rights or obligations under this
Agreement, or attempt or purport to do so, without the prior
written consent of VLF.
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(b) VLF may assign, encumber or otherwise dispose of or deal with
its rights and obligations under this Agreement at any time
following written notice to the Purchaser.
27. FURTHER ASSURANCES
Each party agrees to do all such things and execute all such deeds,
instruments, transfers or other documents as may be necessary or
desirable to give full effect to the provisions of this Agreement and
the transactions contemplated by it.
28. ENTIRE AGREEMENT
Except as expressly set out in this Agreement or another Transaction
Document, this Agreement and the other Transaction Documents contain
the entire agreement between the parties with respect to their subject
matter and supersede all prior agreements and understandings between
the parties in connection with them.
29. NO WAIVER
No failure to exercise nor any delay in exercising any right, power or
remedy by a party operates as a waiver. A single or partial exercise
of any right, power or remedy does not preclude any other or further
exercise of that or any other right, power or remedy. A waiver is not
valid or binding on the party granting that waiver unless made in
writing.
30. NOTICES
Any notice, demand, consent or other communication (a NOTICE) given or
made under this Agreement:
(a) must be in writing, and signed by a person duly authorised by
the sender;
(b) must be delivered to the intended recipient by prepaid post
(if posted to an address in another country, by registered
airmail) or by hand or fax to the address or fax number below
or the address or fix number last notified by the intended
recipient to the sender:
(i) to VLF: V/Line Freight Corporation
▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Chief Executive Officer
Fax No: (▇▇) ▇▇▇▇ ▇▇▇▇
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(ii) to the Purchaser: Freight Victoria Limited
▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Chief Executive
Fax No: (▇▇) ▇▇▇▇ ▇▇▇▇
(iii) to the Guarantor: Rail America, Inc
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Senior Vice President
Fax No: (▇▇▇) ▇▇▇ ▇▇▇▇
(c) will be taken to be duly given or made:
(i) in the case of delivery in person, when delivered;
(ii) in the case of delivery by post two business days
after the date of posting, (if posted to an address
in the same country) or seven business days after
the date of position (if posted to an address in
another country);
(iii) in the case of fix, on receipt by the sender of a
transmission control report from the despatching
machine showing the relevant number of pages and the
correct destination fix machine number and
indicating that the transmission had been made
without error,
but if the result is that a Notice would be taken to be given
or made on a day which is not a business day in the place to
which the Notice is sent or is later than 4.00pm (local time)
it will be taken to have been duly given or made at the
commencement of business on the next business day in that
place.
31. GUARANTEE
31.1 GUARANTEE
In consideration of VLF entering, into this Agreement at the request
of the Guarantor, the Guarantor:
(a) unconditionally and irrevocably guarantees to VLF the due and
punctual performance by the Purchaser of all its obligations
under this Agreement; and
(b) separately indemnities VLF against any Liabilities which may
be incurred or sustained by VLF in connection with any
default or delay by the Purchaser in the due and punctual
performance of any of its obligations under this Agreement.
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31.2 LIABILITY UNAFFECTED BY OTHER EVENTS
The liability of the Guarantor under this Clause is not affected by
any act, omission or thing which, but for this provision, might in any
way operate to release or otherwise exonerate or discharge the
Guarantor from any of its obligations including (without limitation)
the grant to the Purchaser or any other person of any time, waiver or
other indulgence, or the discharge or release of the Purchaser or any
other person from any, obligation.
31.3 CONTINUING GUARANTEE AND INDEMNITY
This Clause:
(a) extends to cover this Agreement as amended, varied or
replaced, whether with or without the consent of the
Guarantor; and
(b) is a continuing guarantee and indemnity and, despite
Completion, remains in full force and effect for so long as
the Purchaser has any liability or obligation to VLF under
this Agreement and until all of those liabilities or
obligations have been fully discharged.
32. GOVERNING LAW AND JURISDICTION
The Agreement is governed by the laws of Victoria. Each party submits
to the non-exclusive jurisdiction of courts exercising jurisdiction
there in connection with matters concerning this Agreement.
33. COUNTERPARTS
This Agreement may be executed in any number of counterparts. All
counterparts will be taken to constitute one instrument.
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EXECUTED in Melbourne
Each attorney executing this Deed states that he or she has no notice of
revocation or suspension of his or her power of attorney.
THE OFFICIAL SEAL of V/LINE )
FREIGHT was duly affixed in the presence )
of: )
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ROD O'LOAN
----------------------------------------- --------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Rod O'Loan
----------------------------------------- --------------------------------
Print Name Print Name
THE COMMON SEAL of FREIGHT )
VICTORIA LIMITED was duly affixed in )
the presence of: )
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ M. VAN ONSELEN
----------------------------------------- --------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ M. Van Onselen
----------------------------------------- --------------------------------
Print Name Print Name
SIGNED for and on behalf of )
RAILAMERICA, INC. by its duly )
appointed attorney in the presence of: )
/s/ ▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇ /s/ M. VAN ONSELEN
----------------------------------------- --------------------------------
▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇ M. Van Onselen
----------------------------------------- --------------------------------
Print Name Print Name
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