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Asset Sale Agreement
The State of Victoria
Victorian Plantations Corporation
and
Forestry Victorian Plantations Pty Ltd
101 Collins Street Melbourne Victoria 3000 Australia
GPO Box 128A Melbourne 3001
Telephone (03) 9288 1234 Facsimile (03) 9288 1567 DX 240 Melbourne
Reference: RWN:SJR
MELBOURNE
SYDNEY
PERTH
CANBERRA
BRISBANE
SINGAPORE
CORRESPONDENT OFFICE IN JAKARTA
HANOI
HO CHI MINH CITY
Lia bilit y is limit e d by t he S o lic it o r s S c he me u nd e r t he P r o fe ssio na l S t a nd a r d s Ac t 1 9 9 4 ( N S W)
Asset Sale Agreement
Table of contents
Clause
Page
1 Definitions and Interpretation
6
1.1 Definitions
1.2 Interpretation
1.3 Operative Date
6
13
14
2 Sale and purchase of assets and grant of Plantation Licences
2.1 Sale, purchase and allocation of assets, rights and liabilities
2.2 Grant of Plantation Licences
2.3 Forestry Services Agreements
2.4 Method of Payment
2.5 Stamp duty adjustment
2.6 Allocation of Total Purchase Price
2.7 Initial payment
3 Deposit
3.1 Payment
3.2 Investment of Deposit
3.3 Interest on Deposit
3.4 Refund
3.5 Termination
3.6 Remedies
3.7 Completion
3.8 Risk
4 Completion
4.1 Date for Completion
4.2 Delivery of documents relating to the Seller
4.3 Buyer’s obligations at Completion
4.4 Property and Risk
4.5 Termination by lapse of time
4.6 Remedies
4.7 Condition Precedent
14
14
14
14
14
15
15
15
15
15
15
15
15
16
16
16
16
16
16
17
18
18
18
18
19
5 Interest on sums payable
19
6 Employees
19
6.1 Statutory Allocation of Employment
6.2 Superannuation
19
19
7 Assumption of liabilities and creditors
19
8 Contracts
20
8.1 Assignment of Contracts
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Asset Sale Agreement
8.2 Allocation of Contracts
20
9 Licences
20
10 Auditor-General’s Audit
20
10.1 Audit by Auditor-General
10.2 Access to books
10.3 Fees of Auditor-General and Treasurer’s Accountants
11 Buyer’s Obligations
11.1 Buyer’s Warranties
11.2 Buyer’s Undertakings
12 Seller’s Warranties
12.1 Giving of Warranties
12.2 Reliance
12.3 Acknowledgment
12.4 Remedies
12.5 Ability to claim
12.6 Limitation on claims
12.7 Quantification of claims
12.8 No claims against directors
13 Buyer’s risk
13.1 Buyer’s responsibilities
13.2 Buyer to discharge responsibilities
13.3 Buyer’s indemnities
14 Seller’s indemnities and the State’s indemnities
14.1 Tax indemnity
14.2 Indemnity for breach
14.3 Claims procedure
14.4 Environmental indemnity
15 Action Pending Completion
15.1 Carrying on of business
15.2 Buyer’s Representative
15.3 Access
15.4 Bank Account
16 Announcements & Confidentiality
16.1 Legal requirements
16.2 Disclosure to officers and professional advisers
16.3 Further publicity
17 Duties, costs and expenses
17.1 Payment of Duty
17.2 Indemnity
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21
21
21
21
22
22
22
22
22
24
24
25
25
25
25
25
26
26
26
26
26
27
27
28
28
30
30
30
31
31
31
31
31
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Asset Sale Agreement
17.3 Costs and expenses
17.4 Costs of performance
18 State's Guarantee and Indemnity
18.1 Guarantee
18.2 Indemnity
18.3 Extent of guarantee and indemnity
18.4 Avoidance of payments
18.5 Continuing guarantee and indemnity
18.6 Warranties of the State
19 Notices
19.1 General
19.2 Legibility of facsimile transmission
20 On-Going Obligations
20.1 Continued Access
20.2 Provision of information
20.3 Allocation Statement
20.4 Dissolution of VPC
21 General
21.1 Governing law and jurisdiction
21.2 Waivers
21.3 Variation
21.4 Further assurances
21.5 Third party rights
21.6 This agreement supersedes others
21.7 Assignment
22 Nominated Contract
32
32
32
32
32
32
33
33
33
33
33
35
35
35
35
36
36
36
36
36
37
37
37
37
37
37
Schedule 1 - Seller’s Warranties
1
Schedule 2 - Disclosures
6
Schedule 3 - There is no Schedule 3
7
Schedule 4 - Allocation of Total Purchase Price
8
Annexure A - 1998 Accounts
Annexure B - Allocation Statement
Annexure C - There is no Annexure C
Annexure D - Form of sign off on accounts
Annexure E - Plantation Licences
Annexure F - Forestry Services Agreements
Annexure G - Escrow Deed
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Asset Sale Agreement
This Asset Sale Agreement
is made on 27 October 1998 and becomes effective on the Operative Date (as
defined in clause 1.1) between the following parties:
1.
The Honourable Alan Robert Stockdale in his capacity as Treasurer
of the State of Victoria for and on behalf of the Crown in the right of the
State (“State”);
2.
Victorian Plantations Corporation a State business corporation
declared in accordance with the provisions of the State Owned Enterprises
Act 1992 (Vic) (“Seller”); and
3.
Forestry Victorian Plantations Pty Ltd ACN 084 801 132 of Level
18 Grosvenor Place, 225 George Street, Sydney, NSW, 2000 (“Buyer”).
A.
The Seller is the owner of the Assets.
B.
The Seller agrees to sell and the Buyer agrees to buy the Assets on the
terms and conditions set out in this agreement.
C.
The State agrees to guarantee the obligations of the Seller under this
agreement.
D.
The parties agree that the Total Purchase Price payable to the Seller in
connection
with
the
privatisation
of
the
Seller
is
$544,121,451.00(including a Licence Fee consisting of:
Recitals
(a)
(b)
E.
$472,008,688.00 for the right to use the land pursuant to subsection
27B(1)(b) of the VPC Act allocated as follows:
(i)
$469,416,000.00 for the right to take or convert Forest
Produce existing on the land; and
(ii)
$2,592,688.00 for the right to take or convert Forest
Produce on the land in the future; and
$100,000.00 for the right to exercise the remaining rights specified
in sections 27B, 27C, 27D and 27F of the VPC Act).
The total value attributed by the parties to the sale of Assets (net of
Creditors and Contract Liabilities) and the grant of the Plantation Licences
the subject of this agreement is $550,000,000.00 made up of:
Total Purchase Price
Estimated Duty
$544,121,451.00
$5,878,549.00
$550,000,000.00
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Asset Sale Agreement
The parties agree
1
Definitions and Interpretation
1.1
Definitions
1998 Accounts means the audited balance sheet of the Seller as at 30 June 1998,
the audited profit and loss statement and statement of cash flows of the Seller for
the period 1 July 1997 to 30 June 1998 and all notes forming part of those
accounts, a copy of which is set out in Annexure A.
ACCC means the Australian Competition and Consumer Commission.
Actual Duty means the amount payable pursuant to the Stamps Act 1958 (Vic) by
the Buyer to the State Revenue Office on the transfer of the Assets (including any
initial financing of the transactions contemplated by this agreement entered into
on or before Completion and security granted on or before Completion to secure
that financing) the grant of the Plantation Licences and any other transactions
forming part of the transactions contemplated by this agreement, as assessed by
the State Revenue Office.
Advisers means all of the advisers of the State in relation to the sale of the Assets
and all other transactions contemplated by this agreement including without
limitation, WDR, Freehill Hollingdale & Page, PricewaterhouseCoopers and the
Privatisation and Industry Reform Division (“PAIRD”) of the Department of
Treasury and Finance.
Allocated Nominated Contract has the meaning contained in clause 22.2.
Allocation Statement means the statements pursuant to which certain property,
rights, liabilities and Employees of the Seller will be transferred to the Buyer and
FVPP (if applicable), in the form set out in Annexure B as varied, if applicable
pursuant to clause 22.2.
Assets means:
(a)
the Plant and Equipment;
(b)
the Business Records;
(c)
the Contract Benefits;
(d)
the Land;
(e)
the Joint Venture Interest;
(f)
the Shares;
(g)
the Intellectual Property Rights;
(h)
the Licences;
(i)
the Forests Act Licences;
(j)
all the Seller’s entitlements under the Real Property Leases and the Shared
Plantation Agreements;
(k)
inventories, raw materials and stores of the Seller used in the Business;
(l)
the Seller’s entitlements under the Employment Contracts;
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Asset Sale Agreement
(m)
cash on hand, deposits and securities in the name of the Seller;
(n)
the Trade Debts; and
(o)
all other tangible or intangible assets (including goodwill and insurance
proceeds from the Seller’s insurance policies) owned by the Seller whether
or not listed in the balance sheet of the Seller forming part of the 1998
Accounts,
other than the Specified Assets.
Associate has the meaning given to that term in the Corporations Law.
Auditor-General means the Auditor-General for the State.
Authorisation includes:
(a)
any consent, registration, filing, agreement, notarisation, certificate,
licence, approval, permit, authority or exemption from, by or with a
Governmental Agency; and
(b)
in relation to anything which may be proscribed or restricted in whole or in
part by law or otherwise if a Governmental Agency intervenes or acts in
any way within a specified period after lodgement, registration or other
notification of anything, the expiration of that period without the
intervention or action by that Governmental Agency.
Base Rate means, in respect of a given date, the rate percent per annum which is
described as the “Average Mid Rate” and appears on the page entitled “BBSW”
on the Reuters Monitor System at or about 10.00 am (Melbourne time) on that
date for a bank accepted bill of exchange having a tenor of 30 days.
Business means the business of establishing, maintaining and managing certain
timber plantations situated on the Vested Land, the Managed Land and the Land
carried on by the Seller (and subsequently the Buyer) on a commercial basis, the
harvest and the sale of Forest Produce from these plantations and other activities
carried on by the Seller (and subsequently the Buyer) and FVPP (if applicable).
Business Day means a day on which banks are open for business in Melbourne,
excluding a Saturday or a Sunday or a public holiday, except in the case of clauses
2.7 and 3 where it means a day on which banks are open for business in
Melbourne and Boston, Massachusetts, USA excluding a Saturday, Sunday or a
public holiday.
Business Records means all of the Seller’s financial and business data, Employee
data, technical data and all the Seller’s other records, data, information and
documents, with the exception of any documents relating to the Specified Assets.
Buyer’s Representative has the meaning given to that term in clause 15.2.
Buyer’s Warranties means the warranties and representations of the Buyer set
out in clause 11.
Chief Executive Officer has the meaning given to that term in sub-section 34(1)
of the VPC Act.
Code of Forest Practices means the Code of Practice approved under the
Conservation, Forests and Lands Act 1987 (Vic) and called ‘the Code of Forest
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Asset Sale Agreement
Practices for Timber Production No. 2’, or any other Code approved under that
Act to replace that Code.
Completion means completion of the sale and purchase of the Assets and the
assumption of Creditors and Contract Liabilities under clause 2.
Completion Date means 3 December 1998 or as otherwise agreed in writing
between the parties (and on such terms as the parties agree).
Contract Benefits means all express or implied rights, benefits and interests of
the Seller pursuant to the Contracts whether before or after Completion.
Contract Liabilities means all express or implied liabilities, obligations and
burdens of the Seller pursuant to the Contracts which arise in relation to the
performance or failure in performance of such Contracts whether before or after
Completion.
Contracts means all contracts, agreements and arrangements to which the Seller
is a party, including, without limitation, the Forests Act Licences, Managed Land
Leases, Specified Agreements, research and development contracts, but not
including the Legislated Agreements.
Control has the same meaning as that in Chapter 2E.2 of the Corporations Law
and “Controls” and “Controlled” have corresponding meanings.
Creditors means all persons to whom are owed amounts, debts, obligations and
liabilities, whether currently owed or prospectively or contingently owing by the
Seller, whether provided for or not, including, without limitation, all provisions in
the accounts of the Seller including provisions for doubtful debts, site restoration,
diminution in the value of inventory, research and development, uninsured losses,
employee entitlements, redundancies and all bank overdraft arrangements.
Data Room Documentation means all written responses to questions submitted
by bidders during the sales process and all documentation contained in the data
room or otherwise disclosed to the Buyer and listed in the data room index dated
September/October 1998 and supplementary data room index sheets provided to
the Buyer up to and including 5:00 pm, 23 October 1998.
Deposit means $5,000,000.
Disclosures means the information described in Schedule 2.
dispose of includes transfer, sell or otherwise dispose of any right, title or interest
in or otherwise allow any person to acquire a Relevant Interest in, but does not
include the giving of any Security Interest to a bank or other financial institution.
Dollars A$ and $ means the lawful currency of the Commonwealth of Australia.
Duty means any stamp, transaction or registration duty or similar charge imposed
by any Victorian Governmental Agency and includes, but is not limited to, any
interest, fine, penalty, charge or other amount imposed in respect of the above, but
excludes any Tax.
Easements means any registered or registrable easement to use land disclosed in
the sales process as being an easement of the Seller.
Employees means those employees of the Seller engaged in the Business as at
Completion and listed in the List of Corporation Staff.
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Asset Sale Agreement
Employment Contracts means the employment contracts or agreements between
the Seller and the Employees and all related obligations of the Seller in respect of
the Employees, including in relation to superannuation and accrued leave and
workers compensation.
Escrow Deed means the deed to be entered into between the State, the Seller,
FVP and Freehill Hollingdale and Page, a copy of which is set out in Annexure G.
Estimated Duty means $5,878,549.00.
Forest Produce has the meaning given to that term in section 3 of the VPC Act.
Forestry Services Agreement means the agreement to sub-contract the rights and
obligations of the Seller under the Legislated Agreements to the Buyer, in the
form set out in Annexure F.
Forests Act Licences means the following licences issued pursuant to the Forests
Act 1958 (Vic):
(a)
Brown & Dureau Building Materials Pty Ltd (S000144) for the supply of
28,000 cubic metres until 30 June 2002;
(b)
Benalla Timber Products Pty Ltd (S000191) for the supply of 5000 cubic
metres until 30 June 2004; and
(c)
CSR Limited (S000193) for the supply of 5,200 cubic metres until 30 June
2004.
[Definition of FVPP deleted]
Governmental Agency means the government of any country or any state,
territory, municipality or other political subdivision of a country, and any minister,
administrative or judicial body, department, commission, authority,
instrumentality, tribunal, agency or entity of any such government.
Group means, in relation to each shareholder in the Buyer (and each person who
holds a beneficial interest in the shares held by that shareholder) (“first named
person”):
(a)
the Ultimate Holding Vehicle of that first named person; and
(b)
every person interposed between that Ultimate Holding Vehicle and the
first named person,
with each such vehicle, person or corporation being a Group Member.
Intellectual Property Rights means the rights of the Seller to all:
(a)
patents, copyrights or designs, registered or unregistered;
(b)
rights under each licence in respect of such patents, copyrights or design;
and
(c)
equitable rights in respect of such patents, copyrights or designs or such
licences.
Joint Venture Interest means VPC’s one third interest in SPEJV.
Land means all real property interests held by the Seller and allocated to the
Buyer pursuant to the Allocation Statement other than Vested Land and includes,
without limitation, freehold property and easements and includes any associated
liabilities such as contamination.
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Asset Sale Agreement
Legislated Agreements means the following agreements:
(a)
the Forests (Australian Newsprint Mills Limited) Act 1980 (Vic);
(b)
the Forests (Laminex Industries Agreement) Act 1989 (Vic); and
(c)
the Forests (Dunstan Agreement) Act 1987 (Vic).
Licence Fee means the $472,108,688.00 payable by the Buyer to the Seller in
consideration for the grant of the Plantation Licences in the form set out in
Annexure E and consists of:
(a)
(b)
the payment of $472,008,688.00 by the Buyer to the Seller for the Buyer’s
right, pursuant to the Plantation Licences, to use the Vested Land for the
uses specified in sub-section 27B(1)(b) of the VPC Act allocated as
follows:
(i)
$469,416,000.00 for the Buyer’s right to take or convert the
existing Forest Produce on the Vested Land; and
(ii)
$2,592,688.00 to take or convert Forest Produce on the Vested
Land in the future; and
the payment of $100,000.00 by the Buyer to the Seller for the Buyer’s
right, pursuant to the Plantation Licences, to exercise the remaining rights
specified in sections 27B, 27C, 27D and 27F of the VPC Act.
Licences means every licence, permit, registration or other authority whatsoever
which is held by the Seller and which is necessary to properly and efficiently carry
on the Business other than the Plantation Licences.
List of Corporation Staff means the list prepared pursuant to section 49 of the
VPC Act in the form set out in Annexure B.
Loss means any and all losses (including loss of profit and loss of expected
profit), claims, actions, liabilities, damages, expenses, diminutions in value or
deficiencies of any kind or character (whether consequential or otherwise or
whether or not known or asserted on or before Completion) including, without
limitation, all interest and other amounts payable to third parties, all liabilities on
account of taxes and all legal (on a full indemnity basis) and other expenses
reasonably incurred in connection with investigating or defending any claims or
actions, whether or not resulting in any liability and all amounts paid in settlement
of claims or actions.
Managed Land means the land the subject of the Managed Land Leases.
Managed Land Leases means those leases entered into by the Seller pursuant to
section 21 of the VPC Act, including those listed in the Allocation Statement.
Material Contract has the meaning given to that term in warranty 4.1(b) of
Schedule 1.
Management Company means SPE (Management) Pty Ltd (ACN 070 030 410).
Nominated Contract means [6 log supply contracts detailed with the customer
name and date. Details deleted due to confidentiality considerations.]
Officer means a director or company secretary or assistant secretary of the
relevant party (as the case may be).
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Asset Sale Agreement
Operative Date means the date when Freehill Hollingdale and Page as agent
under the Escrow Deed is notified in writing by the Seller, the State and the Buyer
that the conditions set out in clause 6(a) of the Escrow Deed relating to this
agreement have been fulfilled.
Plant and Equipment means all plant, equipment and articles owned by the
Seller including without limitation motor vehicles, fire tankers, office furniture,
communication equipment, computers and all other plant and equipment used in
the Business wherever located.
Plantation Licences means the licences of Vested Land entered into pursuant to
section 27B of the VPC Act, in the form set out in Annexure E.
Power means any right, authority, discretion or remedy conferred on the parties by
this agreement or any applicable law.
Real Property Interests means all rights and benefits of the Seller in the Land
and under the Real Property Leases.
Real Property Leases means all agreements pursuant to which the Seller leases
or licences or is the lessee or licensee of real property, including those listed in the
Allocation Statement.
Relevant Interest has the meaning given to that expression in the Corporations
Law.
Security Interest means an interest or power created or otherwise arising in or
over any interest in any asset under a bill of sale, mortgage, charge, lien, pledge,
trust or power by way of security for the payment of a debt and includes, but is not
limited to, any agreement to grant or create any of the above.
Seller’s Warranties means the warranties and representations of the Seller set out
in Schedule 1.
Shared Plantation Agreements means all agreements pursuant to which VPC
has undertaken to utilise land owner’s land for the purposes of plantations,
including those listed in the Allocation Statement.
Shares means 100 issued shares in the Management Company.
Specified Agreement means an agreement under Part 8 of the Conservation,
Forests and Lands Act 1987 (VIC) between the Seller and the Director General of
the Department of Natural Resources and Environment.
Specified Assets means:
(a)
any rights (whether actual, contingent or prospective) which the Seller may
have against any of the directors of the Seller (including directors of the
Seller who ceased to be directors prior to the date of this agreement) other
than in respect of fraud; and
(b)
any Allocated Nominated Contract.
Specified Creditors means any obligation of the Seller to pay State Equivalent
Tax.
SPEJV means Softwood Plantation Exporters Joint Venture, a joint venture
entered into between Associated Kiln Driers Pty Ltd (ACN 004 341 048), J
Wright & Sons Pty Ltd (ACN 004 271 452) and VPC, dated 20 February 1996.
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Asset Sale Agreement
STA Fund means the Superannuation Trust of Australia.
State Equivalent Tax means such amounts due to the Treasurer under section
88(1)(a) of the State Owned Enterprises Act 1992 (Vic) and any rulings made in
relation to that section in respect of tax that would be payable by the Seller if it
were liable to pay taxes under the law of the Commonwealth.
State Governmental Agency means the State or any Governmental Agency of the
State.
Tax means any tax (including land tax and goods and services tax), levy, charge,
impost, duty, fee, deduction or withholding which is assessed, levied, imposed or
collected by any State Governmental Agency and includes, but is not limited to
any interest, fine, penalty, charge, fee or any other amount imposed on, or in
respect of, any of the above and any amount imposed under section 88 of the State
Owned Enterprises Act 1992 (Vic) but excludes any Duty.
Third Party Claim has the meaning given to that term in clause 14.3.
Total Purchase Price means $544,121,451.00 being the sum of the Licence Fee,
the price of the Assets net of Contract Liabilities and Creditors (excluding
Specified Creditors) assumed under this agreement and, for the avoidance of
doubt, does not include the Estimated Duty or the Actual Duty. The sum of
$544,121,451.00 is fixed, notwithstanding that the components referred to above
may be shown collectively to have a different value.
Trade Debts means each and every amount due to the Seller on Completion in
connection with the Business by or in respect of trade debtors, payments in
advance, trade bills, receivables and like trade obligations and includes sundry
debtors, prepayments and other receivables.
Treasurer’s Accountants has the meaning given to that term in clause 10.1.
Ultimate Holding Vehicle means:
(a)
in relation to a body corporate, the same meaning as that given to
“Ultimate Holding Company” in the Corporations Law; and
(b)
in relation to any other investment vehicle (trust or otherwise), the person
who Controls that investment vehicle and is itself not Controlled by any
person.
Vested Land has the meaning given to that term in the VPC Act.
VPC means Victorian Plantations Corporation, a State business corporation
declared in accordance with the provisions of the State Owned Enterprises Act
1992 (Vic).
VPC Act means the Victorian Plantations Corporation Act 1993 (Vic).
WDR means Warburg Dillon Read Australia Corporate Finance Limited (ACN
053 909 407).
1.2
Interpretation
In this agreement, unless the context otherwise requires:
(a)
headings and underlinings are for convenience only and do not affect the
interpretation of this agreement;
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Asset Sale Agreement
(b)
words importing the singular include the plural and vice versa;
(c)
words importing a gender include any gender;
(d)
other parts of speech and grammatical forms of a word or phrase defined in
this agreement have a corresponding meaning;
(e)
an expression importing a natural person includes any company,
partnership, joint venture, association, corporation or other body corporate
and any Governmental Agency;
(f)
a reference to a clause, party, annexure, exhibit or schedule is a reference
to a clause of, and a party, annexure, exhibit and schedule to, this
agreement and a reference to this agreement includes any such annexure,
exhibit and schedule;
(g)
subject to paragraph 1.2(p), a reference to a statute, regulation,
proclamation, ordinance or by-law includes all statutes, regulations,
proclamations, ordinances or by-laws amending, consolidating or replacing
it, and a reference to a statute includes all regulations, proclamations,
ordinances and by-laws issued under that statute;
(h)
a reference to a document includes all amendments or supplements to, or
replacements or novations of, that document;
(i)
a reference to a party to a document includes that party's successors and
permitted assigns;
(j)
where the day on or by which any thing is to be done is not a Business
Day, that thing must be done on or by the next Business Day;
(k)
no rule of construction applies to the disadvantage of a party because that
party was responsible for the preparation of this agreement or any part of
it;
(l)
a reference to an agreement other than this agreement includes an
undertaking, agreement or legally enforceable arrangement or
understanding;
(m)
a reference to an asset includes all property of any nature, including, but
not limited to, a business, and all rights, revenues and benefits;
(n)
a reference to a document includes any agreement in writing, or any
certificate, notice, instrument or other document of any kind;
(o)
a reference to liquidation includes appointment of an administrator,
compromise, arrangement, merger, amalgamation, reconstruction,
winding-up, dissolution, assignment for the benefit of creditors, scheme,
composition or arrangement with creditors, insolvency, bankruptcy, or any
similar procedure or, where applicable, changes in the constitution of any
partnership or person, or death;
(p)
terms defined in the Corporations Law at the date of this agreement have
the meanings given to them in the Corporations Law at that date;
(q)
a reference to a person includes a reference to the person’s executors,
administrators, successors, substitutes (including, but not limited to,
persons taking by novation) and assigns;
(r)
a reference to time is a reference to Melbourne time; and
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Asset Sale Agreement
(s)
1.3
a reference to any thing (including, but not limited to, any amount) is a
reference to the whole and each part of it and a reference to a group of
persons is a reference to any one or more of them.
Operative Date
This agreement becomes effective on the Operative Date, save for clauses 1.1, 1.2,
1.3, 2.7, 15.1, 15.2, 15.4 and 19.1, which are effective on the date of signing of
this agreement.
2
Sale and purchase of assets and grant of Plantation Licences
2.1
Sale, purchase and allocation of assets, rights and liabilities
Subject to the terms of this agreement, on the Completion Date:
(a)
the Seller must sell free of Security Interests the Assets (excluding the
Land);
(b)
the Buyer must:
(c)
2.2
2.3
(1)
buy the Assets (excluding the Land);
(2)
assume the Creditors (except the Specified Creditors) and the
Contract Liabilities; and
(3)
pay the Total Purchase Price to the Seller; and
the State must procure that the Allocation Statement becomes effective.
Grant of Plantation Licences
(a)
In consideration of the Licence Fee, payable in accordance with this
agreement, the parties agree to enter into the Plantation Licences.
(b)
Contemporaneous with the Operative Date the parties must enter into the
Plantation Licences.
Forestry Services Agreements
Contemporaneous with the Operative Date the parties must enter into the Forestry
Services Agreements.
2.4
Method of Payment
All payments to be made under this agreement must be made by bank cheque or
other method of payment agreed between the parties.
2.5
Stamp duty adjustment
(a)
The Seller agrees to pay the Buyer any amount by which the Actual Duty
exceeds the Estimated Duty.
(b)
The Buyer agrees to pay the Seller any amount by which the Estimated
Duty exceeds the Actual Duty within a reasonable time after the Buyer is
refunded that amount by the State Revenue Office.
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Asset Sale Agreement
2.6
Allocation of Total Purchase Price
The parties agree that the allocation of the Total Purchase Price is as set out in
Schedule 4.
2.7
Initial payment
The Buyer agrees to pay to the State by wire transfer (as instructed by the State in
writing) the sum of US$100,000.00 within two (2) Business Days of receiving the
wire transfer instructions. That sum will not be refunded to the Buyer and does not
form part of the Total Purchase Price.
3
Deposit
3.1
Payment
Within five Business Days of the Operative Date, the Buyer must pay the Deposit
to the Seller on account of the Total Purchase Price.
3.2
Investment of Deposit
The Seller must:
3.3
(a)
invest the Deposit until the Completion Date, rescission or termination of
this agreement in an interest bearing account with National Australia Bank;
and
(b)
withdraw the Deposit and accrued interest on the Completion Date,
rescission or termination of this agreement and pay it to the person entitled
to it under this clause 3.
Interest on Deposit
Interest on the Deposit is payable:
3.4
(a)
if this agreement is completed, to the Seller; and
(b)
if this agreement is not completed, to whichever of the Buyer or the Seller
is entitled to the Deposit under this clause 3.
Refund
Subject to clause 3.5 and 3.6, the Deposit will only be refunded to the Buyer (and
the State must refund the Deposit) if the Buyer is able to comply with its
obligations under this agreement and undertake all steps which, on its part, are
necessary to achieve Completion but the State or the Buyer exercises its right to
terminate this agreement under clauses 4.5 and 4.7(d).
3.5
Termination
If prior to Completion, the Buyer commits a material breach of this agreement and
the Seller gives written notice to the Buyer to remedy the breach and the Buyer
remains in breach three Business Days after receipt of the notice, then, without
prejudice to any other rights or remedies the Seller may have, the Seller:
(a)
may retain the Deposit; and/or
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Asset Sale Agreement
(b)
3.6
may:
(1)
seek specific performance of this agreement failing which the Seller
may then elect to proceed under clause 3.5(b)(2); or
(2)
terminate this agreement and sue the Buyer for breach of contract
and resell the Business and the Assets on its own terms.
Remedies
If this agreement is terminated under this clause 3 then in addition to any other
rights provided by law, the State and the Seller retain the rights they have against
the Buyer, including without limitation, the right to retain the Deposit (on account
of liquidated damages), to claim and recover upon resale any deficiency (including
without limitation the time value of money) in the aggregate proceeds of sale
(however described) and any resulting expenses (in aggregate the “Sale
Deficiency”). The State and the Seller undertake to exercise their rights pursuant
to this clause 3.6 in an expeditious fashion in order that any deficiency for which
the Buyer may become liable will crystallise as soon as reasonably possible. In the
event that the Sale Deficiency is less than the amount of the Deposit, the
difference shall be refunded to the Buyer.
3.7
Completion
When Completion occurs, the Deposit will be taken to be part payment of the
Total Purchase Price in an amount equal to the Deposit.
3.8
Risk
The party who is entitled to the Deposit under this clause 3 bears the risk of losing
the Deposit.
4
Completion
4.1
Date for Completion
Completion must take place on the Completion Date at 10 am at the office of the
State's solicitors, Freehill Hollingdale & Page, 48th Floor, 101 Collins Street,
Melbourne or such other time or place as agreed between the parties.
4.2
Delivery of documents relating to the Seller
(a)
At Completion, the Seller must:
(1)
(2)
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make available to the Buyer at the respective offices or places of
business of the Seller:
(A)
copies of all ledgers, journals and books of account of the
Seller (whether in written or electronic form); and
(B)
all original documents in the possession of the Seller
relating to the ownership and use of the Assets;
deliver to the Buyer:
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Asset Sale Agreement
(b)
(A)
a copy of the Allocation Statement by which property, rights
and liabilities of the Seller are allocated to the Buyer and (if
applicable) FVPP and a certificate signed by the Chief
Executive Officer pursuant to section 38 of the VPC Act in
relation to the assets referred to in the Allocation Statement;
(B)
a copy of the List of Corporation Staff by which the
Employees of the Seller are transferred to the Buyer;
(C)
evidence of the appointment of the Chief Executive Officer;
(D)
the Assets not otherwise specifically referred to above in
clause 4.2(a) at the places where those assets are located at
the time; and
(E)
a copy of the directors’ resolution passed by the directors of
the Seller approving the sale of Assets by the Seller on and
subject to the terms of this agreement.
The Seller will be entitled to retain documents of the type described in
clause 4.2(a) as are required by the Seller to comply with applicable laws
including:
(1)
all of the corporate records of the Seller, including board minutes
and any other documents required to dissolve the Seller; and
(2)
such documents as are required by the Seller to verify the financial
statements and State Equivalent Tax returns of the Seller for the
periods up to 30 June 1998 and Completion,
provided that the Seller must deliver to the Buyer a list of documents
retained and the Buyer shall be entitled, at the Buyer’s cost, to access these
documents (including taking copies) on reasonable notice to the Seller.
(c)
4.3
The Buyer must promptly apply for, and the State and the Seller shall cooperate with the Buyer in relation to, the transfers referred to in this clause
4.
Buyer’s obligations at Completion
At Completion the Buyer must:
(a)
pay the Seller the Total Purchase Price (plus any interest on the Total
Purchase Price payable pursuant to clause 5) less any Deposit paid;
(b)
pay to the State Revenue Office the Estimated Duty payable by the Buyer
in respect of the transactions effected by this agreement;
(c)
deliver to the State (in form and substance reasonably satisfactory to the
State):
(1)
certified copies of the certificates of incorporation and
memorandum and articles of association or other constituent
documents of the Buyer; and
(2)
certified copies of each power of attorney pursuant to which this
agreement and any document contemplated by this agreement is
executed by the Buyer or evidence (in form and substance
satisfactory to the State) of the Buyer’s power and authority to enter
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Asset Sale Agreement
into this agreement and any document contemplated by this
agreement and of the due execution of this agreement and any such
document by the Buyer.
4.4
Property and Risk
Property and risk in the Assets will pass to the Buyer at Completion.
4.5
Termination by lapse of time
If:
(a)
this agreement has not already been terminated by the State under clause
3.5; and
(b)
Completion has not occurred on or before 31 January 1999 (or such other
date as the parties may have agreed in writing),
then either the Buyer on the one part or the State (on behalf of itself and the
Seller) on the other part may, if not in breach of this agreement, give written
notice to the other of its intention to terminate this agreement after three Business
Days of receipt of the notice. After such notice has been delivered both parties
must use their best efforts to reach Completion within the three Business Day
notice period. If Completion does not occur within such period then this
agreement automatically terminates on expiration of the three Business Day notice
period.
4.6
Remedies
If this agreement is terminated under clause 4.5, then, in addition to any other
rights provided by law:
4.7
(a)
subject to paragraph (b), each party is released from its obligations to
continue performance under this agreement except those imposing
obligations of confidentiality; and
(b)
each party retains the rights it has against any other party in respect of any
past breach.
Condition Precedent
(a)
The parties agree that a condition precedent to Completion is that the
Plantation Licences be registered pursuant to the VPC Act.
(b)
The parties must use their best endeavours to satisfy the condition
precedent set out in clause 4.7(a) on or immediately prior to Completion.
(c)
Each party shall keep the other parties informed of the progress of
satisfying the condition precedent set out in clause 4.7(a).
(d)
If the condition precedent set out in clause 4.7(a) is not waived or satisfied
on or before 31 January 1999, the Buyer or the Seller may, by written
notice to the other, terminate this agreement.
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5
Interest on sums payable
If any party fails to pay any sum payable by it under or in accordance with this
agreement (including, without limitation, the Total Purchase Price) at the time and
in the manner provided in this agreement, that party must pay interest on that sum
from the due date of payment until that sum is paid in full at the Base Rate plus
2%.
6
Employees
6.1
Statutory Allocation of Employment
The Seller and the State must effect the statutory transfer of the employment of
each of the Employees to the Buyer with effect on and from Completion pursuant
to the VPC Act.
6.2
Superannuation
Following execution of this agreement, the Buyer must immediately apply to join
the STA Fund as a participating employer and use its best endeavours to become a
participating employer prior to Completion.
7
Assumption of liabilities and creditors
Following Completion, the Buyer must assume with effect from Completion all
liabilities of the Seller to the Creditors, including without limitation the Contract
Liabilities, other than the Specified Creditors and liabilities under any Allocated
Nominated Contract, and agrees to pay all Creditors other than the Specified
Creditors and liabilities under any Allocated Nominated Contract in the normal
course of business for obligations of the Seller existing before or after
Completion.
8
Contracts
8.1
Assignment of Contracts
With effect from Completion, the Seller assigns to the Buyer all of its right, title
and interest in the Contract Benefits and the Buyer agrees to assume the Contract
Liabilities provided that this clause does not apply to the benefits or liabilities
under any Allocated Nominated Contract.
8.2
Allocation of Contracts
Subject to clause 22, notwithstanding anything in this agreement, any Contract
which has not been novated to the Buyer 5 Business Days prior to Completion will
be allocated to the Buyer pursuant to the Allocation Statement.
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Asset Sale Agreement
9
Licences
The State, the Seller and the Buyer must use their best endeavours to transfer the
Licences from the Seller to the Buyer with effect from Completion.
10
Auditor-General’s Audit
10.1 Audit by Auditor-General
The Buyer acknowledges and agrees that:
(a)
it will procure that its management prepares, in draft, as expeditiously as
possible following Completion (and in any event within three months
following Completion), financial statements for the Seller as nominated by
the Treasurer for the period from 1 July 1998 up to and including the date
on which Completion occurs or such earlier date as is nominated by the
Treasurer on a basis consistent with the 1998 Accounts and applying such
generally accepted accounting principles and policies as may be advised by
independent accountants appointed by the Treasurer (“Treasurer's
Accountants”);
(b)
it will procure that its management assists the Seller, to the extent possible,
to prepare, as expeditiously as possible after 30 June 1999 (and in any
event before 30 September 1999) financial statements for the Seller as
nominated by the Treasurer for the period up to and including 30 June
1999 on a basis consistent with the 1998 Accounts and applying such
generally accepted accounting principles and policies as may be advised by
the Treasurer's Accountants;
(c)
it will at the request of the Seller provide such information as the Seller
may require to prepare final versions of the financial statements referred to
in paragraphs (a) and (b);
(d)
the financial statements referred to in paragraphs (a) and (b) may be
audited by the Auditor-General or his agent; and
(e)
it will procure that its management (including its chief financial officer)
signs off on the financial statements referred to in paragraph (a) within 10
Business Days after they have been finalised in a form and content
substantially the same as that set out in Annexure D.
10.2 Access to books
For the purposes of clause 10.1, the Buyer must grant the Auditor-General and/or
the Treasurer's Accountants (and/or the agents of any of them), the State and the
Seller (including the Seller’s directors) full and free access at all reasonable times
to those employees of the Buyer whose knowledge or information is needed by the
Auditor-General and/or the Treasurer's Accountants (and/or the agents of any of
them) and to all books, records and other data pertaining to the Buyer relevant to
the preparation of financial accounts of the Seller. The Buyer must procure that
the employees of the Buyer assist the Seller, the Auditor-General and/or the
Treasurer’s Accountants (and/or agents of any of them) in finalising, evaluating
and auditing the financial statements referred to in clause 10.1.
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10.3 Fees of Auditor-General and Treasurer’s Accountants
The fees payable to the Auditor-General and/or the Treasurer’s Accountants
(and/or the agents of any of them) in finalising, evaluating or auditing the financial
statement referred to in clause 10.1 must be met by the State.
11
Buyer’s Obligations
11.1 Buyer’s Warranties
The Buyer represents and warrants to the State and the Seller with respect to itself
and its Group Members that as at the date of this agreement and Completion:
(a)
it has the corporate power to enter into this agreement and has taken all
necessary action (including obtaining all shareholder approvals and
Authorisations) to authorise the execution, delivery and performance of
this agreement;
(b)
this agreement constitutes a legally valid and binding obligation of the
Buyer enforceable in accordance with its terms;
(c)
the execution, delivery and performance of this agreement will not violate
any provision of:
(1)
any law, regulation, order, rule or decree of any Governmental
Agency of the Commonwealth of Australia or any state or territory
or, where the Buyer is incorporated outside Australia, of the place
of its incorporation, or any recognised stock exchange on which its
shares or the shares of any related body corporate are listed;
(2)
the memorandum or articles of association (or equivalent
constituent documentation) of the Buyer; and
(3)
any security agreement, deed, contract, undertaking or other
instrument to which the Buyer is a party or which is binding on it
and does not and will not result in the creation or imposition of any
security over any of its assets pursuant to the provision of any such
security agreement, deed, contract, undertaking or other instrument;
(d)
the Buyer has not gone into liquidation nor passed a winding-up resolution
nor received a deregistration notice under section 601AA or applied for
deregistration under 601AB of the Corporations Law or corresponding
legislation of another jurisdiction;
(e)
no petition or other process for winding-up has been presented or
threatened against the Buyer and there are no circumstances justifying such
a petition or other process;
(f)
no writ of execution has issued against the Buyer; and
(g)
no receiver or receiver and manager to the Buyer or any part of the
undertaking or assets of the Buyer has been appointed to the Buyer.
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11.2 Buyer’s Undertakings
The Buyer undertakes to the State that it will:
12
(a)
subject to the trust deed governing the STA Fund, on and from
Completion, pay, in a timely manner, all superannuation contributions
imposed in respect of the Employees by the trustee of the STA Fund; and
(b)
promptly following Completion (and in any event within three months
following Completion) identify and return to the Seller, the documents in
the possession of the Buyer which are referred to in clauses 4.2(b)(1) and
(2).
Seller’s Warranties
12.1 Giving of Warranties
The Seller gives the Seller’s Warranties (other than Seller’s Warranty 16.3) in
favour of the Buyer as at the date of this agreement and in the case of Seller’s
Warranties 1.1, 1.2, 2, 5.1, 6.1, 7, 11, 15, 16.3, 17 and 19 at Completion.
12.2 Reliance
The Buyer has not entered into this agreement in reliance on anything other than
the Seller’s Warranties and other terms of this agreement.
12.3 Acknowledgment
The Buyer acknowledges and agrees with the State and the Seller that:
(a)
on the basis that the Disclosures have, to the knowledge and belief of the
State, been made in good faith and that the State has no knowledge that the
information therein is misleading or deceptive (but acknowledging that the
State is under no obligation to make any enquiries to verify that state of
knowledge) any statement, representation, term, warranty, condition,
promise or undertaking made, given or agreed to by the Seller, the State, a
representative of the Seller or an Adviser in any prior negotiation,
arrangement, understanding or agreement, has no effect except to the
extent expressly set out or incorporated by reference in this agreement;
(b)
it has entered into this agreement after satisfactory inspection and
investigation of the affairs of the Seller based on the Disclosures and other
information available to it;
(c)
no representation or warranty is made by the State (nor has the Seller or the
State any liability whatsoever to the Buyer) in relation to:
(1)
the principles to be applied by the ACCC or its successor(s) or
other Governmental Agencies;
(2)
the regulation of the Victorian timber industry (including any act or
omission by any responsible Minister of the Crown or the ACCC)
and other industries in Victoria (and the relationship of such other
industry regulation to the regulation of the Victorian timber
industry);
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Asset Sale Agreement
(d)
(3)
the terms or future terms of the Code of Forest Practices;
(4)
the manner or form in which the Federal Treasurer’s announcement
dated 4 August 1997 and Taxation Law Amendment Bill (No. 4)
1998 (now lapsed) regarding the tax treatment of privatised entities,
including sales effected by way of asset sale, will be implemented
or reflected in legislation and its application to the sale of Assets
pursuant to this agreement;
(5)
the status of relations between the Seller and its Employees;
(6)
the status of relations between the Seller and its customers;
(7)
the value ascribed to each asset acquired by the Buyer for the
purposes of taxation, including depreciation, amortisation, capital
gains or otherwise;
(8)
the basis on which any allowance or deduction in relation to any of
the Assets and other assets of the Seller and the Plantation Licences
may be calculated or allowed to the Buyer for Federal tax purposes;
(9)
the performance, future action, operation, profitability and
commercial direction of any entity participating in the Victorian
timber industry; and
(10)
any native title rights and interests in relation to the Land, the
Vested Land and the Managed Land; and
the past and present non-executive directors of the Seller have played no
part in the negotiation of this agreement or in the provision of information
to the Buyer, including, without limitation, the Data Room Documentation.
12.4 Remedies
The sole remedy of the Buyer for breach of any Seller Warranty is to damages in
accordance with this clause 12 or the indemnities in accordance with clause 14,
and in no event is the Buyer entitled to rescind this agreement.
12.5 Ability to claim
The Buyer is precluded from bringing a claim for breach of any Seller Warranty or
under the indemnities in clause 14, to the extent:
(a)
that the claim is based on any fact, matter or circumstance:
(1)
set out in the Disclosures;
(2)
within the actual knowledge of the Buyer or which ought to have
been known by the Buyer, having regard to its knowledge (and the
knowledge of its advisers which the advisers are not prevented
from disclosing to the Buyer due to obligations of confidence) of
the timber industry in Victoria and having regard to its
opportunities to make enquiries of the State and the Seller;
(3)
which, before the date of this agreement, had been communicated
in writing to the Buyer; or
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Asset Sale Agreement
(4)
which was within the actual knowledge of the Buyer at Completion
and such fact, matter or circumstance would be inconsistent with or
in breach of any Seller’s Warranty;
(b)
that the claim arises or is increased directly as a result of action taken (or
not taken as the case may be) by the State or the Seller on or after the date
of this agreement, after consultation with, and receipt of no objection
within a reasonable period from, the Buyer;
(c)
that provision has been made in the 1998 Accounts for any fact, matter or
circumstance on which the claim is based;
(d)
to which the claim is recoverable (or would have been recoverable under
insurance if notified to the Seller or the insurers in a timely manner after
the date of this agreement);
(e)
that the claim is based on any risk (actual or potential), fact, matter or
circumstance which was generally known in relation to the Victorian or
Australian timber industry before Completion;
(f)
of any change after the date of this agreement in any applicable law (other
than any act or subordinate legislation of the State) which has retrospective
effect;
(g)
that the Buyer has failed to comply with the procedures set out in clause
14.3, so that the State is effectively unable to assume or conduct (or is
materially prejudiced in so assuming or conducting) any defence or other
action contemplated by that clause; or
(h)
that the claim is based on any forecasts, projections or representations as to
the future revenue, profits or other matter.
12.6 Limitation on claims
(a)
In order for the Buyer to claim under the Seller’s Warranties and the
indemnities in clause 14 the Buyer must give written notice to the State of
the general nature of the claim as soon as is reasonable after it becomes
aware of the facts, matters or circumstances on which the claim is based
(and where the claim is recoverable under insurance the time limits
imposed by the relevant insurer will be taken into account in determining
what is reasonable) and in any event within 12 months after the
Completion Date.
(b)
With the exception of clause 2.5, the maximum aggregate amount which
the Buyer may recover from the State or the Seller under this agreement in
respect of all claims under this agreement (including claims under the
Seller’s Warranties and the indemnities in clause 14) is $1.00.
12.7 Quantification of claims
The quantum of any liability the Seller has to the Buyer under the Seller’s
Warranties, clause 14 and otherwise under this agreement will be determined
solely by reference to the direct financial impact on the Buyer (and in no
circumstances will a multiple of that direct financial impact be taken into account)
which results from the facts, matters or circumstances on which the claim is
based, not being as warranted.
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12.8 No claims against directors
13
(a)
The Buyer agrees not to make any claims or demands or issue proceedings
or seek any form of relief against all or any of the present or past directors
(the “Directors”) of the Seller in contract, in tort, for breach of statutory
duty or otherwise (save for fraud) relating to the transactions effected or
contemplated by this agreement.
(b)
The Buyer acknowledges that this covenant and undertaking given to the
State and the Seller is given to them as principal and as agent for the
Directors.
Buyer’s risk
13.1 Buyer’s responsibilities
Following Completion, the Buyer will be responsible for the risk and cost of:
(a)
any Loss arising from the operation of the Business before or after
Completion or in any way connected with the Business including, without
limitation, liabilities relating to Employees of the Seller and environmental
and third party liabilities relating to the Assets or the operation of the
Assets;
(b)
any Loss incurred by the Seller arising from the non-payment of, or failure
to perform obligations associated with, the Creditors;
(c)
any Loss arising from the performance or non-performance of the Contract
Liabilities before or after Completion;
(d)
all liabilities of the Seller arising (whether under contract, tort, statute or
otherwise) and debts incurred in connection with or in respect to the
Business or the Assets whether arising before or after Completion; and
(e)
any liability or Loss suffered or incurred by the Seller which arises from
(and any costs, charges or expenses incurred by the Seller in connection
with) any breach of, or default under, this agreement by the Buyer,
except the Specified Creditors which remain the responsibility of the Seller and in
relation to any compensation which may be payable in relation to the passage of
the VPC Act and the Land Titles Validation Act 1993 (Vic).
13.2 Buyer to discharge responsibilities
(a)
If requested by the State or the Seller, the Buyer must perform all actions
reasonably requested by the State or VPC to discharge its responsibilities
under clause 13.1.
(b)
The Buyer agrees that it will not object to be joined as a party to any legal
action, claim, dispute or proceedings in connection with or relating to any
Loss or liability referred to in clause 13.1.
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Asset Sale Agreement
13.3 Buyer’s indemnities
Following Completion, the Buyer must indemnify and continue to indemnify the
Seller and the State against any Loss or liability referred to in clause 13.1 which
arises after Completion.
14
Seller’s indemnities and the State’s indemnities
14.1 Tax indemnity
The Seller indemnifies the Buyer as a continuing indemnity against any liability or
Loss suffered or incurred by the Buyer which arises from (and any costs, charges
or expenses incurred by the Buyer in connection with) any liability to pay Tax
which is not fully provided for in the 1998 Accounts and which arises in respect of
the period before 30 June 1998.
14.2 Indemnity for breach
Subject to clauses 12.5, 12.6, 12.7 and 12.8 the Seller indemnifies the Buyer
against any liability or loss suffered or incurred by the Buyer and arising from (and
any costs, charges or expenses incurred by the Buyer or in connection with):
(a)
any matter or thing in respect of the Seller, the Assets or the Business
being other than as represented or warranted in this agreement; and
(b)
any breach of, or default under, this agreement by the Seller.
14.3 Claims procedure
On receipt of a notice under clause 12.6(a) which involves a Third Party Claim,
the State must assume the defence of the claim unless the claim is covered by
insurance, in which event the defence will be conducted by the insurer's lawyers.
The Buyer must have the right, at its own cost, to employ separate lawyers or
other advisers in any such action or claim and, subject to the consent of the
relevant insurance company, to participate in the defence. The Buyer agrees that:
(a)
it must not, pay or settle any claim in respect of which an indemnity may
be claimed under this clause 14 or make any admission in respect of any
claim in respect of which an indemnity may be claimed under this
clause 14 without the prior written consent of the State;
(b)
it must execute such forms and documents and make such personnel and
documents available to the State as the State may reasonably require to
enable the State to assume, defend or take such other action in respect of
any such Third Party Claim (including without limitation the lodgment of
an objection to the assessment or decision by the Victorian Commissioner
of State Revenue or other responsible person relating to Tax within the
time required by the relevant applicable law); and
(c)
it must promptly notify the State of receipt by it of any advice,
correspondence or other communication with the third party (or its
advisers) which relates to the Third Party Claim.
In this clause “Third Party Claim” means any liability of the Buyer to a third
party which arises out of or results from claims asserted against the Buyer by a
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Asset Sale Agreement
third party, and in respect of which the State or the Seller may be liable to the
Buyer under this agreement.
14.4 Environmental indemnity
(a)
Subject to paragraphs (b) and (c), as a separate and independent principal
obligation, the State indemnifies the Buyer against all liabilities incurred or
suffered by the Buyer (“Losses”) arising from any demand, notice or order
of any court or environmental authority for a clean up of any Land as a
result of a Specified Environmental Event that occurred before
Completion.
(b)
Paragraph (a) does not apply if:
(1)
the Loss is a result of the fraud, default or negligence of the Buyer;
or
(2)
the amount of the Losses in aggregate is less than $1 million;
(c)
The State’s liability to indemnify the Buyer under this clause is limited to
$5 million.
(d)
Where the clean up of Land arises partly by reason of any act or omission
of the Seller prior to Completion and partly by reason of any person after
Completion, then the liabilities shall by apportioned as between the Seller
on the one hand, and the Buyer on the other, in accordance with the degree
to which the relevant acts or omissions contributed to the state or condition
in respect of which the obligation to clean up arose.
(e)
No claim may be made under this clause 14.4 unless a notice of such claim
is received by the State within twelve (12) months of Completion.
(f)
In this clause:
“Specified Environmental Event” means the Contamination of land or
waters as a result of:
(1)
the existence of an underground storage tank on the Land on or
before Completion;
(2)
the use of the Land as an airstrip or for the storage and mixing of
aerially sprayed chemicals on or before Completion;
(3)
mining activities conducted on Land in the Western Zone on or
before Completion; and
(4)
the landfilling or disposal of wastes in or under the Land on or
before Completion
“Contamination” means the presence, in on or under land or Waters of a
Chemical Substance at a concentration above the concentration at which
the Chemical Substance is normally present in, on or under (respectively)
land or Waters in the same locality, being a presence that presents a risk of
harm to human health or any other aspect of the environment or which fails
to satisfy the contamination criteria published or adopted by the Victorian
Environment Protection Authority at the relevant time.
“Chemical Substance” shall have the same meaning as in the Environment
Protection Act 1970 (Vic).
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Asset Sale Agreement
“Waters” shall have the same meaning as in the Environment Protection
Act 1970 (Vic).
15
Action Pending Completion
15.1 Carrying on of business
(a)
Before Completion the Seller will ensure that, except as expressly
contemplated by this agreement, it carries on the Business (including
payment of its debts as and when they fall due) in the ordinary and normal
course so as to preserve the value of the Assets and the financial and
trading position of the Business.
(b)
The Seller and the State recognise the need for the Buyer to be involved in
all critical aspects of the management of the Business. In recognition of
this, the Seller must also ensure that before Completion unless the Buyer
consents (or fails to object) in accordance with clause 15.2 or as otherwise
contemplated by this agreement:
(1)
the Seller does not enter into, vary, rescind or terminate or fail to
observe its material obligations in respect of any contractual
commitment requiring the Seller to pay:
(A)
more than $1,000,000 or commitments with a particular
person where the aggregate value of those commitments is
more than $1,000,000; or
(B)
more than $250,000 per annum for any period more than
five years from the Completion Date,
except as otherwise disclosed in the Disclosures;
(2)
the Seller does not dispose of, or agree to dispose of or grant an
option to purchase, any material asset of the Seller or the Business,
or any interest in such asset;
(3)
except in the ordinary course of business the Seller does not engage
any new employee and in any event the Seller does not engage any
new employee with a base annual remuneration in excess of
$75,000 and, except in the ordinary course of business the Seller
does not terminate any of the Employees of the Seller or change the
terms of employment (including remuneration and the terms of any
enterprise bargaining agreement) of any of the Employees of the
Seller;
(4)
the Seller manages the working capital requirements and any
liabilities of the Seller in the ordinary course of business (with both
the State and the Buyer having the right to have their respective
representatives observe management in carrying out such
activities);
(5)
the Seller does not incur any expenditure or make any payment in
excess of $100,000 other than in the ordinary course of business;
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Asset Sale Agreement
(c)
(6)
the Seller does not incur any indebtedness except through the bank
account(s) referred to in clause 15.4 other than in the ordinary
course of business;
(7)
the Seller does not grant any Security Interest;
(8)
the Seller does not acquire any assets outside the ordinary course of
its business;
(9)
the Seller notifies the Buyer of any litigation, investigation,
arbitration or like proceedings involving an amount likely to exceed
$500,000;
(10)
the Seller does not grant any Power of Attorney that does not expire
before Completion; and
(11)
the Seller, as soon as practicable following execution of this
agreement, applies to have noted on all insurance policies of the
Seller in effect, the interest of the Buyer and maintains all insurance
policies in effect and pays all insurance premiums that become due,
Notwithstanding clauses 15.1(a) and 15.1(b), the Buyer acknowledges that
the Seller may make the following payments:
(1)
$8.6 million relating to dividend provided as at 30 June 1998;
(2)
$17.4 million special dividend to be proposed;
(3)
$2.9 million relating to tax provided for as at 30 June 1998;
(4)
$3.8 million relating to tax payable for 5 months to end November
1998; and
(5)
$0.3 million relating to municipal rates payable for 5 months to end
November 1998.
Which, for the avoidance of doubt, shall not result in any adjustment to the
Total Purchase Price.
15.2 Buyer’s Representative
(a)
The Buyer must nominate a person (“Buyer’s Representative”) who has
authority to act on behalf of the Buyer in relation to any queries, consents
or approvals required under this agreement. The Buyer’s Representative is
Bruce McKnight, or such other person notified in writing to the State.
(b)
The Buyer must act reasonably in relation to any consent or approval
sought under clause 15.1(b).
(c)
If the Buyer’s Representative does not consent or object to the entry into a
particular contract or conduct of the type described in clause 15.1(b) within
5 Business Days of being notified of the Seller's intention to enter into that
contract or implement that conduct, the Buyer will be deemed to have
consented to the entry into that contract or implementation of that course
of conduct.
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Asset Sale Agreement
15.3 Access
Before Completion the State must use reasonable endeavours to:
(a)
ensure that the Buyer, and any person authorised by the Buyer, is given all
reasonable access during normal business hours to the assets, properties,
books of account, records and documents of the Seller;
(b)
provide the Buyer with all explanations and information it requests in
respect of the Seller or the Business;
(c)
ensure that the Buyer, and any person authorised by the Buyer is given
reasonable access to senior management of the Seller; and
(d)
provide the Buyer’s Representative with an office at the Seller’s offices.
15.4 Bank Account
All cash flows relating to the Business, in the period from the date of this
agreement (“Signing”) to Completion (including cheques not presented at
Signing), must flow through the Seller’s nominated account(s) with National
Australia Bank.
16
Announcements & Confidentiality
16.1 Legal requirements
Subject to clause 16.2 the Buyer must not disclose anything in respect of this
agreement or the sale of the Assets except as required:
(a)
by applicable law; or
(b)
by the requirements of any recognised stock exchange on which its shares
or the shares of any related body corporate are listed,
but must consult with the State before making the disclosure and the Buyer must:
(c)
use reasonable endeavours to accommodate reasonable requests by the
State as to the form and content of the disclosure; and
(d)
claim and apply for, to the maximum extent possible, any exemptions or
rights of confidentiality that may be afforded the Buyer under such laws or
requirements.
16.2 Disclosure to officers and professional advisers
A party may disclose anything in respect of this agreement or the sale of the
Assets to such of the Officers, employees and professional advisers of that party
and its related bodies corporate and to its lenders and the lenders’ professional
advisers as need to know that thing for the ordinary business purposes but it must
use its best endeavours to ensure all matters disclosed are kept confidential.
16.3 Further publicity
Subject to clauses 16.1 and 16.2 the Buyer must not disclose the provisions of this
agreement, or the terms on which the Assets are sold unless the State has first
consented in writing.
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Asset Sale Agreement
17
Duties, costs and expenses
17.1 Payment of Duty
Subject to clause 2.5, the Buyer must pay:
(a)
any Duty in respect of the execution, delivery and performance of this
agreement and any document entered into or signed under this agreement;
and
(b)
any fine, penalty or other cost in respect of a failure to pay any Duty.
17.2 Indemnity
Subject to clause 2.5, the Buyer indemnifies the Seller and the State against any
amount payable under clause 17.1.
17.3 Costs and expenses
Subject to clause 17.1, each party must pay its own costs and expenses in respect
of the negotiation, preparation, execution, delivery and registration of this
agreement or other document described in clause 17.1(a).
17.4 Costs of performance
Any action to be taken by a party in performing its obligations under this
agreement must be taken at its own cost and expense unless otherwise provided in
this agreement.
18
State's Guarantee and Indemnity
18.1 Guarantee
The Treasurer on behalf of the State, unconditionally and irrevocably guarantees
to the Buyer the due and punctual performance of the Seller's obligations under
this agreement (including any indemnities given in favour of the Buyer).
18.2 Indemnity
As a separate and independent principal obligation, the State indemnifies the
Buyer against all liabilities, losses, damages, costs or expenses incurred or
suffered by the Buyer and all actions, proceedings, claims or demands made
against the Buyer as a result of default by the Seller in the performance of any
such obligation or from any such express or implied obligations being
unenforceable.
18.3 Extent of guarantee and indemnity
(a)
This clause 18 applies:
(1)
to the present and future obligations of the Seller under this
agreement; and
(2)
to this agreement, as amended, supplemented, renewed or replaced.
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Asset Sale Agreement
(b)
The obligations of the State under this clause 18 extend to any change in
the obligations of the Seller as a result of:
(1)
any amendment, supplement, renewal or replacement of this
agreement; or
(2)
the occurrence of any other thing.
(c)
This clause 18 is not affected, nor are the obligations of the State under
this agreement released or discharged or otherwise affected, by anything
which, but for this provision, might have that effect.
(d)
This clause 18.3 applies irrespective of any rule of law or equity to the
contrary.
18.4 Avoidance of payments
(a)
If any payment, conveyance, transfer or other transaction relating to or
affecting any obligation of the Seller under this agreement is:
(1)
void, voidable or unenforceable in whole or in part; or
(2)
is claimed to be void, voidable or unenforceable and that claim is
upheld, conceded or compromised in whole or in part,
the liability of the State under this clause 18 and any Power is the same as
if:
(3)
that payment, transaction, conveyance or transfer (or the void,
voidable or unenforceable part of it); and
(4)
any release, settlement or discharge made in reliance on any thing
referred to in clause 18.4(a)(3),
had not been made and the State must immediately take all action and sign
all documents necessary or required by the Buyer to restore to the Buyer
this clause 18 and any Security Interest held by the Buyer immediately
before the payment, conveyance, transfer or transaction.
(b)
Clause 18.4(a) applies whether or not the Seller knew, or ought to have
known of, anything referred to in that clause.
18.5 Continuing guarantee and indemnity
This is a continuing obligation of the State, despite:
(a)
any settlement of account; or
(b)
the occurrence of any other thing,
and remains in full force and effect until:
(c)
the obligations of the Seller under this agreement have been performed;
and
(d)
this clause 18 has been finally discharged by the State.
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Asset Sale Agreement
18.6 Warranties of the State
The State represents and warrants that this guarantee and indemnity constitutes a
legally valid and binding obligation of the guarantor enforceable in accordance
with its terms.
19
Notices
19.1 General
Any notice or other communication including, but not limited to, any request,
demand, consent or approval, to or by a party to this agreement:
(a)
must be in legible writing and in English addressed as shown :
(1)
if to the Seller
Chief Executive Officer
Address:
Victorian Plantations Corporation
Level 3, 517 Flinders Lane
Melbourne 3000
Attention:
Mr Kevin White
Facsimile:
03 9621 1659
with a copy to the State;
(2)
(3)
if to the State:
The Treasurer
Address:
C/- GBE Reform
Privatisation and Industry Reform
Division
Department of Treasury and Finance
Level 5
1 Treasury Place
Melbourne 3002
Facsimile:
03 9651 0034
if to the Buyer:
Address:
Level 18 Grosvenor Place, 225 George
Street, Sydney, NSW, 2000
Attention:
Bruce McKnight
Facsimile:
02 9258 1124
and to:
Hancock Natural Resources Group
Freehill Hollingdale & Page MELC3
Address:
26th Floor, 99 High Street, Boston,
Massachusetts, 02110-2320, United States of
America
Attention:
Bruce Mc Knight
Facsimile:
(617) 7471516;
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Asset Sale Agreement
(b)
where the sender is a company, must be signed by an Officer or under the
common seal of the sender;
(c)
is regarded as being given by the sender and received by the addressee:
(1)
if by delivery in person, when delivered to the addressee; or
(2)
if by facsimile transmission, when transmitted legibly to the
addressee,
but if the delivery or receipt is on a day which is not a Business Day or is
after 4.00 pm (addressee's time) it is regarded as received at 9.00 am on the
following Business Day; and
(d)
can be relied upon by the addressee and the addressee is not liable to any
other person for any consequences of that reliance if the addressee believes
it to be genuine, correct and authorised by the sender.
19.2 Legibility of facsimile transmission
A facsimile transmission is regarded as legible unless the addressee telephones the
sender within 2 hours after the transmission is received or regarded as received
under clause 19.1(c)(2) and informs the sender that it is not legible.
20
On-Going Obligations
20.1 Continued Access
The Buyer acknowledges that the State has continuing reporting obligations under:
(a)
the uniform budget presentation standards and Australian loan council
standards, as agreed from time to time by the Premiers of various States
within Australia; and
(b)
the Financial Management Act 1994 (Vic).
Accordingly, the Buyer must ensure that from Completion up until 30 June 1999:
(c)
the State is granted full and free access at all reasonable times to those
employees of the Buyer whose knowledge or information is needed by the
State (together with all books, records and other data pertaining to the
Seller and the Business and which are referrable to the period on and
before Completion) to enable it to comply with these obligations
(d)
if, to comply with such reporting obligations, the Auditor-General or the
Treasurer requires the Seller to prepare any accounts or other financial
information, the Buyer must, subject to any changes in the Australian
Accounting Standards Board accounting standards:
(1)
prepare such draft accounts or other financial information on a
basis consistent with the accounting policies and practices applied
by the Seller in the 1998 Accounts; or
(2)
prepare such draft accounts or other financial information on the
basis of its then current accounting policies and practices, but with
a reconciliation setting out the difference between its current
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Asset Sale Agreement
accounting policies and practices and those which applied in the
1998 Accounts.
20.2 Provision of information
The Buyer must provide, at no charge, all reasonable assistance (including access
to contractors, employees and operational records) to the Seller, the State and their
insurers, advisers, consultants and any successors to any of their liabilities
(together the “relevant parties”) to enable the relevant parties to respond and deal
with liabilities or potential liabilities of the relevant parties, including workers
compensation, personal injury, public liability and other similar claims against the
Seller and in particular, the Buyer must:
(a)
maintain, protect from damage and keep in an organised manner all
relevant records;
(b)
permit the relevant parties to inspect the relevant records; and
(c)
provide the relevant parties with copies of relevant records within fourteen
(14) Business Days of a request being made.
20.3 Allocation Statement
The Buyer agrees to assist the State to effect and implement the transfer of the
property, rights and liabilities referred to in the Allocation Statement, including,
without limitation, granting access and otherwise assisting to undertake any
subdivision of land that may be necessary.
20.4 Dissolution of VPC
21
(a)
If the State decides to dissolve or abolish the Seller, it shall implement this
decision in a manner which does not prejudice the Buyer’s interest in the
Plantation Licences or the Assets.
(b)
The Buyer acknowledges that if the Seller’s rights and obligations,
including its rights and obligations under the Plantation Licences are
transferred to a Government Agency or an entity wholly owned by the
State, and all of the Buyer’s rights are fully preserved, the Buyer’s interest
in the Plantation Licences or the Assets will not be prejudiced.
General
21.1 Governing law and jurisdiction
(a)
This agreement is governed by the laws of Victoria. Each party irrevocably
submits to the exclusive jurisdiction of the courts of Victoria.
(b)
Each party irrevocably waives any objection to the venue of any legal
process on the basis that the process has been brought in an inconvenient
forum.
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Asset Sale Agreement
21.2 Waivers
(a)
Waiver of any right arising from a breach of this agreement or of any
Power arising upon default under this agreement must be in writing and
executed by the party granting the waiver.
(b)
A failure or delay in exercise, of:
(1)
a right arising from a breach of this agreement; or
(2)
a Power created or arising upon default under this agreement,
does not result in a waiver of that right or Power.
(c)
A party is not entitled to rely on a delay in the exercise or non-exercise of a
right or Power arising from a breach of this agreement or on a default
under this agreement as constituting a waiver of that right or Power.
(d)
A party may not rely on any conduct of another party as a defence to
exercise of a right or Power by that other party.
(e)
This clause 21.2 may not itself be waived except in writing executed by the
party granting the waiver.
21.3 Variation
A variation of any term of this agreement must be in writing and executed by the
parties.
21.4 Further assurances
Each party must do all things, and execute all further documents, necessary to give
full effect to this agreement and the allocations made under the Allocation
Statement.
21.5 Third party rights
No person (including, but not limited to, an Employee) other than a party to this
agreement has or is intended to have any right, power or remedy or derives or is
intended to derive any benefit under this agreement.
21.6 This agreement supersedes others
This agreement and the Escrow Deed embodies the entire agreement between the
parties with respect to the subject matter of this agreement and supersedes any
prior negotiation, arrangement, understanding or agreement with respect to the
subject matter or any term of this agreement and the Escrow Deed.
21.7 Assignment
(a)
Subject to paragraph (b) and (c), a party may not assign its rights or
obligations under this agreement without the consent of the other parties,
such consent must not be unreasonably withheld.
(b)
Following Completion, the Seller may assign, without the consent of the
other parties, its rights or obligations under this agreement to any party
which is a statutory authority or is wholly owned by the State or a statutory
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Asset Sale Agreement
authority, provided that the guarantee by the State under clause 18 shall
continue to apply.
(c)
22
On and following Completion, the Buyer may grant a charge over its
interest under this agreement to its financiers.
Nominated Contract
[Note: the State, the Seller and the Buyer were required to obtain the consent of certain
customers under each Nominated Contract. Details deleted due to confidentiality
considerations.]
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Asset Sale Agreement
EXECUTED by the parties as an agreement.
SIGNED by THE HONOURABLE
ALAN ROBERT STOCKDALE in
the presence of:
________________________________
_______________________________
Witness
Name (printed):
THE OFFICIAL SEAL
of VICTORIAN PLANTATIONS CORPORATION
was affixed to this
document in the presence
of:
_______________________________
Secretary/Director
_______________________________
Name (please print)
_________________________________
Director
_________________________________
Name (please print)
THE COMMON SEAL
of FORESTRY VICTORIAN
PLANTATIONS PTY LTD
was affixed to this
document in the presence of:
_______________________________
Secretary/Director
_______________________________
Name (please print)
Freehill Hollingdale & Page MELC3
_________________________________
Director
_________________________________
Name (please print)
page 37
Schedule 1 - Seller’s Warranties
Warranty 1 - Corporate Power
1.1
No legal impediment
The execution, delivery and performance by the Seller and the State of this agreement and
the Allocation Statement complies with:
(a)
each law, regulation, Authorisation, ruling, judgment, order or decree of any
Governmental Agency; and
(b)
any Security Interest or document which is binding on the Seller.
1.2
Authorisations
The Treasurer has the power to execute this agreement on behalf of the State, and the
Seller has taken all necessary action to authorise the execution, delivery and performance
of this agreement in accordance with its terms.
Warranty 2 - Corporate Existence
2.1
Corporate existence
The Seller:
(c)
has the power to own its assets and carry on its business as it is now being
conducted;
(d)
is not registered and is not required to be registered in any place outside its place
of incorporation; and
(e)
does not carry on business in any place other than Australia.
2.2
Compliance with constituent documents
The business affairs of the Seller have been conducted in accordance with the VPC Act
and the State Owned Enterprises Act 1992 (Vic).
Warranty 3 - The 1998 Accounts
3.1
Basis of preparation
The 1998 Accounts have been prepared in accordance with Ministerial Directions issued
under the Financial Management Act 1994 (Vic).
Warranty 4 - Period Since the 1998 Accounts
4.1
Carrying on business
Since 30 June 1998 and up to and including the date of this agreement:
(a)
the Seller has carried on the Business in the ordinary and normal course;
(b)
the Seller has not entered into any contractual commitment:
(1)
Freehills MELC3
requiring the Seller to pay more than $1,000,000 (or commitments with a
particular person where the aggregate value of those commitments is more
than $1,000,000) or more than $250,000 per annum for any period more
than 5 years from the Completion Date; or
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Asset Sale Agreement
(2)
requiring the Seller to spend or incur indebtedness in excess of $100,000
other than in the ordinary course of business,
(each a “Material Contract”);
(c)
except for the sale of the Assets under this agreement the Seller has not disposed
of, or agreed to dispose of or grant an option to purchase, any material asset of the
Seller or the Business, or any interest in such an asset other than in the ordinary
course of business; and
(d)
the Seller has not engaged any new employee with base annual remuneration in
excess of $75,000 or, except in the ordinary course of business or pursuant to an
enterprise bargaining agreement (or interim agreement), changed the terms of
employment (including remuneration) of any of the Employees.
Warranty 5 - Assets
5.1
Title to assets
The Seller is the legal and beneficial owner of the Assets free of Security Interests other
than:
(a)
assets over which Security Interests have been created in the ordinary course of
business, or in the course of the sale of the Assets under this agreement; and
(b)
land of the Seller which is currently leased to third parties.
Warranty 6 - Disclosure
No trade secret or confidential information of the Seller has been disclosed or made
available to any person except in the ordinary course of business or in the course of the
sale of the Assets under this agreement.
Warranty 7 - Security Interests
The Seller has not granted or created, or agreed to grant any Security Interest except in the
ordinary course of business.
Warranty 8 - Contracts
8.1
Foreign currency transactions
The Seller is not party to any foreign currency transaction other than in the ordinary
course of business.
8.2
No notices
Except as disclosed in the Disclosures, the Seller has not received any written notice
which might affect any rights of the Buyer or the exercise of any rights by the Buyer in
respect of any Material Contract.
Warranty 9 - Delegations and offers
9.1
Powers of attorney
No power of attorney given by the Seller is in force except as disclosed in the
Disclosures.
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Asset Sale Agreement
9.2
Offers outstanding
Any offer, tender or quotation made by the Seller in respect of the Business which is
outstanding and capable of acceptance by a third party, was made in the ordinary course
of the Business.
Warranty 10 - Creditors
10.1 Outstanding Notes
No cheque, promissory note or bill of exchange drawn, accepted or endorsed by the Seller
is still outstanding, other than:
(a)
bills drawn in the course of refinancing by the Seller of debt owed to the State or
its instrumentalities; and
(b)
cheques drawn to pay for obligations incurred by the Seller in the ordinary course
of the Business.
Warranty 11 - Corporate structure
11.1 Shareholdings
The Seller is not the holder or the beneficial owner of any shares or other capital or
securities convertible into shares or other capital in any other company other than the one
third ownership of SPE (Management) Pty Ltd (ACN 070 030 410).
11.2 Permanent establishment
The Seller does not have any permanent establishment (as that expression is defined in
any relevant taxation agreement to which Australia is a party) outside Australia.
11.3 Memberships
The Seller is not a member of any joint venture, partnership or unincorporated association
(including a recognised trade association) other than the SPEJV and the Southern Tree
Breeders Association.
Warranty 12 - Employees
Other than contributions to the STA Fund and payments required under personal
employment contracts, the Seller is not currently liable to pay any annuity, superannuation
benefit, pension or other like payment in respect of the death, disability, retirement,
resignation or dismissal of any Employee or any former employee of the Seller.
Warranty 13 - Superannuation schemes
13.1 List complete
The STA Fund is the only superannuation scheme or other pension arrangement:
(a)
in operation by or in relation to the Employees; and
(b)
to which the Seller contributes which provides its directors or Employees or their
dependants with pensions, annuities or lump sum payments.
13.2 Funding
With respect to the STA Fund there were at 30 June 1998 no outstanding and unpaid
contributions other than as provided in the 1998 Accounts on the part of the Seller or any
Employee.
Warranty 14 - Unions
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Asset Sale Agreement
14.1 Agreements
The Seller is not a party to any agreement, arrangement or understanding with a union or
industrial organisation in respect of the Employees other than:
(a)
awards made by, agreements certified by, or agreements the implementation of
which has been approved by the Australian Industrial Relations Commission
under the Industrial Relations Act 1958 (Cth);
(b)
human resources policies of the Seller; and
(c)
Victorian Plantations Corporation - AWU Enterprise Agreement MkIII (1996).
Warranty 15 - Compliance with law
15.1 Compliance with law
The ownership and use of the Seller's assets by the Seller comply with all applicable laws
specific to the forestry industry.
15.2 Conduct and practices
The Seller only engages in, and has at all times only engaged in conduct or practices
which comply with all applicable laws which affect the Seller's operations (including any
consumer protection, fair trading, restrictive trade practices or anti-trust legislation.
15.3 Authorisations
(a)
The Seller has all necessary Authorisations required to conduct the Business and
has paid all fees due in relation to them and complied with all conditions under
them.
(b)
There is no factor which might prejudice the continuance or renewal of any such
Authorisation.
Warranty 16 - Litigation
16.1 Seller not a party to any litigation
The Seller is not:
(a)
a party to any investigation, prosecution, litigation, arbitration proceedings or any
other form of mediation or dispute resolution; or
(b)
subject to any audit or investigation by any Governmental Agency.
16.2 No litigation pending or threatened
No audit, investigation, prosecution, litigation, proceeding or any other form of mediation
or dispute resolution referred to in Warranty 16.1 is pending or threatened.
16.3 No litigation initiated by Seller
The Seller has not initiated any litigation, arbitration proceedings or any other form of
mediation or dispute resolution which would materially adversely affect the sale of the
Assets or the granting of the Plantation Licences as contemplated by this agreement, other
than in the ordinary course of business.
Warranty 17 - No Receiver
No receiver, receiver and manager or administrator of any part of the undertaking or
assets of the Seller has been appointed or is threatened or expected to be appointed and
there are no circumstances justifying an appointment.
Freehill Hollingdale & Page MELC3
page 4
Asset Sale Agreement
Warranty 18 - Records
All accounts, books, ledgers and financial and other records of the Seller are either:
(a)
in the possession or under the control of the Seller and located at the Seller’s
premises at Melbourne and or its regional offices;
(b)
held on behalf of the Seller by various contractors for the purposes of providing
services to the Seller.
Warranty 19 -Taxes and duties
19.1 Provisioning
Adequate provision has been made in the 1998 Accounts for any Tax or which is payable
or may become payable by the Seller in respect of the period before 30 June 1998 but
which was unpaid at that date.
19.2 Documents stamped
Any Duty payable in relation to any transaction or agreement to which the Seller is or has
been a party or by which the Seller derives or has derived a substantial benefit has been
paid.
19.3 Returns submitted
The Seller has submitted any necessary information, notices, computations, returns,
declarations and elections to the relevant Governmental Agency in respect of any Tax or
any Duty relating to the Seller.
Warranty 20 -Insurances
20.1 Premiums paid
All premiums due and payable under the Seller's insurance policies have been paid.
Freehill Hollingdale & Page MELC3
page 5
Asset Sale Agreement
Schedule 2 - Disclosures
1.
All Data Room Documentation.
2.
All information which is available on public record.
3.
All information set out in the Information Memorandum dated July 1998.
Freehill Hollingdale & Page MELC3
page 6
Asset Sale Agreement
Schedule 3 - There is no Schedule 3
Freehill Hollingdale & Page MELC3
page 7
Asset Sale Agreement
Schedule 4 - Allocation of Total Purchase Price
AMOUNT
A$’000
Plant and Equipment
Business Records
6,115
NIL
Land
17,633
Joint Venture Interest
2,846
Shares
0.1
Intellectual Property Rights
NIL
Licences
NIL
Forests Act Licences
NIL
All the Seller’s entitlements under the Real Property Leases and
the Shared Plantation Agreements and the Managed Land Leases
25,038.663
Inventories, raw materials and stores of the Seller used in the
Business
479
The Seller’s entitlements under the Employment Contracts
NIL
Trade Debts
11,506
All other tangible assets and insurance proceeds from the Seller’s
insurance policies owned by the Seller whether or not listed in
the balance sheet of the Seller forming part of the 1998 Accounts
14,000
Total Assets
Less Creditors assumed
Add Licence Fee
Total Purchase Price
Freehill Hollingdale & Page MELC3
77,617.763
(5,605)
472,108.688
544,121.451
page 8
Asset Sale Agreement
Annexure A - 1998 Accounts
Freehill Hollingdale & Page MELC3
page 9
Asset Sale Agreement
VICTORIAN PLANTATIONS CORPORATION - ANNUAL REPORT 1998
FINANCIAL
STATEMENTS
Operating Statement
for the year ended 30th June 1998
Note
1998
1997
$’000
$’000
81,540
69,363
8,637
7,354
Production, Harvesting and Cartage Costs
22,783
14,032
Plantation, Nursery and Administration Costs
14,793
14.868
1,669
1,427
7
246
Operating Revenue
2
Less:
Employee Costs
Depreciation
Interest Charges
Operating Profit before Abnormal Items and Income Tax
3
33,651
31,436
Abnormal Items
4
2,983
1,762
30,668
29,674
5,887
4,984
Net Profit after Income Tax
24,781
24,690
Retained Earnings at beginning of year
31,346
19,186
Total Available for Appropriation
56,127
43,876
Operating Profit before Income Tax
Income Tax
5
Amount Transferred to Natural Disaster Reserve
15
2,000
2,500
Amount Transferred from Natural Disaster Reserve
15
(2,983)
0
-
(1,400)
14,113
11,430
42,997
31,346
Amount Transferred from Land Title Reserve
Dividend Provided for or paid
Retained Earnings at End of Year
1
The accompanying notes form an integral part of these accounts.
Freehill Hollingdale & Page MELC3
page 10
Asset Sale Agreement
Balance Sheet
as at 30th June 1998
Note
1998
1997
$’000
$’000
20
6
20
7
8
2,574
11,521
22,830
1,567
410
38,902
2,711
11,849
12,139
1,600
173
28,472
9
10
8
317,700
7,945
4,825
330,470
300,500
7,187
4.189
311,876
369,372
340,348
12
13
14
4,351
12,625
137
17,113
4,434
12,138
241
16,8113
13
378
345
378
345
17,491
17,158
Net Assets
351,881
323,L90
Owner's Equity
Contributed Capital
Retained Earnings
Forest Valuation Reserve
Natural Disaster Reserve
Total Owner’s Equity
176,936
42,997
122,931
9,017
351,881
176,936
31.346
104,908
10,000
323,190
Current Assets
Cash and Bank Balances
Receivables
Investments
Inventories
Other
Total Current Assets
Non-Current Assets
Forest Valuation
Property, Motor Vehicles, Plant and Equipment
Other
Total Non-Current Assets
Total Assets
Current Liabilities
Creditors and Borrowings
Provisions
Other
Total Current Liabilities
Non-Current Liabilities
Provisions
Total Non-Current Liabilities
Total Liabilities
15
15
The accompanying notes form an integral part of these accounts.
Freehill Hollingdale & Page MELC3
page 11
Asset Sale Agreement
Statement of Cash Flows
for the year ended 30th June 1998
Note
1998
1997
$’000
$’000
Net Cash From Operating Activities
Receipts from trade and other debtors
Payments to trade creditors, other suppliers and creditors and employees
Interest received
Interest paid
Income tax paid
Net Operating Activities
20
83,503
(47,648)
1,027
(7)
(7,712)
29,163
61,267
(37,377)
1,105
(246)
(6,990)
17,759
Net Cash Used In Investing Activities
Payments for Property, Plant and Equipment
Payment for Plantation expansion
Proceeds from Sale of Property, Plant and Equipment
Net Investing Activity
(3,333)
(3,784)
1,167
(5,950)
(3,774)
(3,415)
616
(6,573)
(7,146)
(5,513)
(12,659)
(3,195)
(4,284)
(3,525)
(11,004)
Net Increase in Cash Held
10,554
182
Cash and Short Term Deposits at Beginning of Financial Year
14,850
14,668
25,404
14,850
Net Cash Used In Financing Activities
Final Dividend Paid
Interim Dividend Paid
Loan Repayments
Net Financing Activities
Cash and Short Term Deposits at End of Financial Year
20
The accompanying notes form an integral part of these accounts.
Freehill Hollingdale & Page MELC3
page 12
Asset Sale Agreement
Notes To and Forming Part of the Accounts
1. STATEMENT OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Accounting
The principal accounting policies adopted in preparing the accounts of the Corporation are stated
below to assist in a general understanding of these accounts.
The accounts have been prepared on a going concern basis and in accordance with Australian
Accounting Standards, Urgent Issues, Consensus Views and the requirements of the Financial
Management Act 1994 and Directions of the Minister of Finance.
Apart from the calculation of the initial Contributing Capital and the Perpetual Forest Valuation
basis for standing timber, the accounts have been prepared on an accrual basis and in accordance
with the historical cost convention using the accounting policies set out herein.
The accounting policies have been consistently applied unless otherwise stated and are consistent
with those adopted in the previous period.
Sustained Yield Approach to Forestry Accounting
The sustained yield approach to forestry accounting involves expensing the cost of fully
maintaining the existing timber stands, together with the harvesting costs of current year timber
sales and costs associated with re-establishment. All road expenditure is expended as incurred.
This policy recognises that the Corporation’s annual production is expected to increase in future
years until the plantations reach a more steady state condition.
New area costs are capitalised and include all direct costs associated with the acquisition of land
and establishment of new forestry areas but not indirect administrative costs.
Forest Valuation
The valuation is on a "Perpetual Forest Basis" and reflects an assessment of the current value of
the estate. The valuation is based on the after tax value of net revenue from projected woodflows
at current prices. Harvested. volume is based on sustainable yield beyond the current four year
planning cycle. Woodflows are derived from actual measured results and historic growth rates,
with no adjustment for improved silvicultural operation. Production and overhead costs used
assume current costs adjusted for future years' projected volume. Projected cash flows are
discounted at a real interest rate of 8.5%.
The valuation has been increased annually by the value of new plantings during the year and the
value of any changes in standing timber based on the increase in net market value of future
woodflows including changes in current revenue and cost levels. The valuation gain has been
transferred to a forest valuation gain reserve.
The method currently adopted by the Corporation will be amended in the future to reflect the
requirements of a new accounting standard AAS35 Self-Generating and Regenerating Assets that
will apply in the year ending 30 June 2000.
Freehill Hollingdale & Page MELC3
page 13
Asset Sale Agreement
Assets Taken Over from the former Department of Conservation and Natural Resources,
now called Department of Natural Resources and Environment
Plantations and land intended for long term plantation use are vested with the Corporation by
means of the Victorian Plantations Corporation Act 1993 and the Victorian Plantation
Corporation (Amendment) Act 1994.
The initial forest valuation as at 1 July 1993 was prepared by the Valuer General using the
Perpetual Forest Valuation and was adopted for accounting and audit purposes by the Treasurer
of Victoria for calculation of the initial contributed capital of the Corporation.
Inventories
Inventories have been valued at the lower of cost and net realisable value. Cost has been assigned
on a first-in first-out basis. Cost comprises direct material, direct labour and an appropriate
portion of fixed and variable overheads.
Foreign Currency Translation
Transactions
Foreign currency transactions are initially translated into Australian currency at the rate of
exchange at the date of the transaction. Resulting exchange differences are brought to account in
determining the profit and loss for the year.
Specific Commitments
Hedging is undertaken to avoid or minimise possible adverse financial effects of movements in
exchange rates. Costs arising upon entry into a hedging transaction intended to hedge the sale of
goods, together with subsequent exchange gains or losses resulting from those transactions, are
referred up to the date of the sale and included in the measurement of the sale.
Property, Motor Vehicles, Plant and Equipment
Property, motor vehicles, plant and equipment have been valued at cost. Cost is determined as
the paid or the fair market value of assets given in exchange for the acquired asset at date of
acquisition plus any incidentals. Where assets were taken over from the former Department of
Conservation and Natural Resources, cost, for the purpose of these accounts, is the amount
adopted for counting and audit purposes by the Treasurer of Victoria for calculation of initial
capital of the Corporation.
Appreciation of Property, Motor Vehicles, Plant and Equipment
Property, motor vehicles, plant and equipment, excluding freehold land. have been depreciated at
rates based upon their expected useful lives using the diminishing value method.
Receivables; and Revenue Recognition
Trade debtors are recognised at the amount receivable, as they are due for settlement no more
than thirty days from the date of recognition.
Freehill Hollingdale & Page MELC3
page 14
Asset Sale Agreement
Operating Revenue
Sales revenue represents revenue earned from the sale of the Corporation's products and services.
Other revenue includes interest income on short-term deposits and cash at bank.
Year 2000 Software Modification Costs
Costs relating to the modification of computer software for year 2000 compatibility are charged
as expenses.
Trade and Other Creditors
These amounts represent liabilities for goods and services provided to the Corporation prior to
the end of the financial year and which are unpaid. These amounts are unsecured and are usually
paid within thirty days of recognition.
Employee Entitlements
Wages and Salaries, Annual Leave
Liabilities for wages and salaries and annual leave are recognised, and are measured as the
amount unpaid at the reporting date at current pay rates in respect of employees’ services up to
that date.
Long Service Leave
A liability for long service leave is recognised and is measured as, the present value of expected
future payments to be made in respect of services provided by employees up to the reporting
date. Consideration is given, when assessing expected future payments to expected future wage
and salary levels. experience of employee departures and periods of service.
In measuring the liability for Long Service Leave, the guarantee by the Department of Natural
Resources and Environment to assume liability at the date of transfer in respect of employees
who joined the Corporation from the Department has been recognised and the liability shown in
the accounts is the net liability.
Superannuation
The Corporation contributes to superannuation funds on behalf of all employees and Directors.
All contributions are made to accumulation funds as incurred.
Doubtful Debts
The Corporation has established a provision for doubtful debts based on outstandings at yearend. Bad debts are written off when they are identified.
Research and Development
Research and development costs are regarded as a normal operating activity for the Corporation.
Such costs are expensed as incurred.
Freehill Hollingdale & Page MELC3
page 15
Asset Sale Agreement
Dividend Policy
The recommended dividend is $14,113,000 (1997 - $11,430,000) of which $5,513,000 (1997
$4,284,000) has been paid as an interim dividend. In accordance with Section 49 of the State
Owned Enterprises Act 1992 such dividend will be determined by the Treasurer after
consultation with the Board and the Minister for Agriculture and Resources.
Income Tax Equivalent
The Corporation is included under the Victorian Government’s Tax Equivalent System for
Income Tax. Income Tax Equivalent has been brought to account using a liability method of tax
effect accounting and is payable to the Victorian Consolidated Fund. As a State owned
enterprise, the Corporation is exempted from the payment of Income Tax to the Commonwealth
Government.
Cash Flows
For the purpose of the statement of cash flows, cash includes cash on hand, cash at banks and
short term deposits which are readily convertible to cash on hand and are subject to an
insignificant risk of changes in value.
Comparative Information
Where necessary, comparative information has been reclassified to achieve consistency in
disclosure with current financial year amounts and other disclosures.
Freehill Hollingdale & Page MELC3
page 16
Asset Sale Agreement
2. OPERATING REVENUE
Note
1998
1997
$’000
$’000
Sales Revenue
79,215
67,588
Other Revenue
Interest Revenue
Miscellaneous Revenue
Proceeds from Sale of Assets
Total Operating Revenue:.
1,102
56
1,167
81,540
1,105
54
616
69,363
1998
1997
$’000
$’000
261
153
26
28
159
820
690
(2)
146
677
604
158
9
720
56
608
24
3. OPERATING PROFIT
Note
Operating profit has been determined after:
Crediting:
Profit on sale of non-current assets
Charging as Expense:
-
Audit fees paid/due and payable to the Auditor General
for Auditing the Accounts
- Depreciation
Buildings & Leasehold
Plant and Equipment
Motor Vehicles and Tankers
- Provision for Doubtful debts
1 debts written off (recovered)
Superannuation contributions made on behalf of.
- Employees
- Directors
4. ABNORMAL ITEM
During the year a mini cyclone in the north-east of Victoria caused extensive damage to
approximately 530 hectares of mostly mature age trees in the Corporation’s plantations.
Subsequently salvage operations including additional harvesting, quality concessions, various
other salvage costs and loss of future sawlog value totalling $2,983,436 (net of recoveries) has
been charged to the Natural Disaster Reserve.
Freehill Hollingdale & Page MELC3
page 17
Asset Sale Agreement
5. INCOME TAX
Note
1998
1997
$’000
$’000
The Corporation became subject to the Victorian Government Income Tax Equivalent System
from 1 July 1995.
Amount of income tax attributed to the financial year:
Operating Profit
Prima facie income tax on operating profit 36%
Reduction in taxpayable:
-Amortisation of Standing Timber
-Planting Cost Capitalised
-50 % Research and Development Allowance
Expenses deducted in prior years but allowed for in current year
Over Provision prior years
Increase in tax payable:
-Under-provision in prior years
-Non-deductible expenses
Income Tax Expense
Income tax attributable to operating profit
Comprising:
-Current tax provision
-Deferred income tax provision
-Future income tax benefit
-Over-provision prior years
-Under-provision in prior year
Income Tax Expense
30,668
11,040
29,674
10,683
4.744
553
38
4,787
456
43
150
266
179
3
5,887
3
4,984
6,519
86
(897)
7,387
45
(2,182)
(266)
179
5,887
4,984
1998
1997
$’000
$’000
11,538
(285)
268
11,521
12,007
(288)
130
11,849
6. RECEIVABLES
Note
Current
Trade debtors
Deduct Provision for doubtful debts
Other
Freehill Hollingdale & Page MELC3
page 18
Asset Sale Agreement
7. INVENTORIES
Note
1998
1997
$’000
‘000
1,234
1,263
333
337
1,567
1,600
1998
1997
$'000
$000
410
173
410
173
Future income tax benefit
4,591
3,932
Lease payment in advance
234
257
4,825
4,189
1998
1997
$'000
$000
300,500
230,864
-
46,536
18,537
19.935
Add purchase of forest and forest land
2,247
2,148
Add new plantings capitalised
1,537
1,267
-
(250)
Logs and Wood Chips
Stores and Supplies
8. OTHER ASSETS
Note
Current
Prepayments
Non-current
9. FOREST VALUATION
Note
Opening Balance 1 July
Add increase due to change in discount rate
Add increase in net market value of future woodflows
Less Survey and Other Costs capitalised (written off)
Less Windthrow Damage
-Realised
4
(4.607)
-
-Unrealised
15
(514)
-
317,700
30.0,500
Closing Balance 30 June
Freehill Hollingdale & Page MELC3
page 19
Asset Sale Agreement
10. PROPERTY, MOTOR VE111CLES, PLANT AND EQUIPMENT
Note
Cost
Land
Buildings
Motor Vehicles & Fire Tankers
Plant & Equipment
Office Furniture & Equipment
Communication Equipment
Computer Equipment
Leasehold - Fixtures & Fittings
Assets under Construction
1998
1997
$’000
$’000
87
2,069
3,688
4,879
507
242
597
136
173
12,378
87
1,882
3.313
4,274
450
211
435
40
39
10,731
Accumulated Depreciation (Diminishing Value Method)
Land
Buildings
Motor Vehicles & Fire Tankers
Plant & Equipment
Office Furniture & Equipment
Communication Equipment
Computer Equipment
Leasehold - Fixtures & Fittings
Assets under Construction
Written Down Value
Land
Buildings
Motor Vehicles & Fire Tankers
Plant & Equipment
Office Furniture & Equipment
Communication Equipment
Computer Equipment
Leasehold - Fixtures & Fittings
Assets under Construction
Freehill Hollingdale & Page MELC3
Depreciation
Rate %
Per Annum
10.0
609
22.5
1,012
30.0
2,019
20.0
241
20.0
141
40.0
375
20.0
35
4,432
467
929
1575
178
102
274
19
3,544
‘87
1,460
2,676
2,860
266
101
222
101
173
7,946
87
1,415
2,384
2,699
272
109
161
21
39
7,187
page 20
Asset Sale Agreement
11. INTEREST IN JOINT VENTURES
Victorian Plantations Corporation has a one-third interest in Softwood Plantation Exporters Joint
Venture, the principal activity of which is to produce and export plantation softwood chips.
The joint venture is managed by SPE (Management) Pty Ltd, which is one-third owned by the
Corporation. The Corporation's investment in the management company is $100 (1997 $100).
The Corporation's interest in assets employed in the joint venture are consolidated in the accounts
as follows:
Note
Cash
Receivables
Plant and Equipment
Deduct Accumulated Depreciation
Net Plant and Equipment
Total Assets
1998
1997
$’000
$’000
61
15
1,992
(248)
1,744
1,820
41
31
1,942
(166)
1,776
1,848
No contingent liabilities or capital commitments exist in relation to the joint venture as at 30
June 1998.
12. CREDITORS AND BORROWINGS
Note
Current
Trade creditors
Non-current
1998
1997
$’000
$’000
4,351
4,351
4,434
4,434
-
-
1998
1997
$’000
$’000
13. PROVISIONS
Note
Current
Income Tax
Dividend
Long Service Leave
Employee Entitlements
Non-current
Deferred Income Tax Liabilities
Long Service leave
Freehill Hollingdale & Page MELC3
1
1
1
2,855
8,600
485
685
12,625
4,105
7,146
344
543
12,138
1
294
84
378
208
137
345
page 21
Asset Sale Agreement
14. OTHER LIABILITIES
Note
Prepaid revenue
Other
23
1998
1997
$’000
$’000
114
25
216
137
241
1997
1996
$’000
$’000
104,908
18,537
(514)
122,931
38,437
46,536
19,935
104,908
10,000
2,000
7,500
2,500
(2983)
9,017
10,000
15. MOVEMENTS IN RESERVES
Note
Forest Valuation Reserve
Opening
Add Increase due to change in discount rate
Add Increase in net market value of future woodflows
Less Decrease in net market value due to windthrow damage (a)
Closing
Natural Disaster Reserve
Opening
Add transfer from Operating Statement
Less transfer to Operating Statement
- Abnormal item - windthrow damage
Closing
(a)
The amount of $514,264 charged to the Forest Valuation Reserve is an estimate of the loss in
value of the damaged standing timber which will be harvested in future years.
16. CONTINGENT LIABILITIES
There are no material contingent liabilities.
17. SUPERANNUATION
There are no contributing employees under the Victorian Superannuation Fund and there are no
unfunded superannuation liabilities, as all contributions are made to accumulation funds.
Contributions to the employee superannuation fund, Superannuation Trust of Australia or other
approved funds are charged as an expense as the contributions are paid. Contributions are made
at a rate agreed to by the employee or in accordance with an industrial agreement and are credited
by the fund to the members' personal account.
18. CAPITAL EXPENDITURE COMMITMENTS
There was $54,000 of capital commitments to purchase various items of plant, equipment and
vehicles (1997 $250,000) contracted for at balance date and not provided for in the accounts.
Freehill Hollingdale & Page MELC3
page 22
Asset Sale Agreement
19. LEASE COMMITMENTS
Total operating lease expenditure contracted for at balance date but not provided for in the
accounts:
Note
Payable no later than one year
Payable later than one, not later than two years
Payable later than two, not later than five years
Payable later than five years
1998
1997
$’000
$’000
413
311
919
4,936
364
324
968
5,581
20. CASH FLOWS INFORMATION
Reconciliation of cash
Cash at the end of the financial year as shown in the statements of cash flows is reconciled to the
related items in the balance sheet as follows:
Note
1998
1997
$’000
Cash at bank
Petty Cash on hand
Short Term deposits
Cash and Short Term Deposits
$’000
2,561
13
22,830
25,404
2,698
13
12,139
14,850
24,781
327
33
(237)
1,669
(261)
4,607
(636)
(83)
(967)
(103)
33
29,16.3
24,690
(6,875)
(1,337)
524
1,427
(153)
250
(2,188)
1.264
245
(268)
180
17,759
Reconciliation of net cash flows from operating activities to operating profit:
Operating Profit After Tax
(Increase) Decrease in Receivables
(Increase) Decrease in Inventories
(Increase) Decrease in Other Current Assets
Depreciation
Profit on sale of Property, Plant and Equipment
Write-off of Survey and Other Costs
Write-off of Forest Valuation
(Increase) in Other Non Current Assets
Increase (Decrease) in Trade Creditors
Increase (Decrease) in Current Provisions
(Decrease) in other Current Liabilities
Increase in Non-Current Provisions
Net Cash Inflow from Operating Activities
Freehill Hollingdale & Page MELC3
6
7
8
3
8
12
13
14
13
page 23
Asset Sale Agreement
21. FINANCIAL INSTRUMENTS
Interest Rate Risk Exposures
The Corporation's exposure to interest rate risk and effective weighted interest rate for each class
of financial assets and financial liabilities is set out below:
1998
Financial Assets
Cash and Bank Balances
Receivables
Investments
Total Financial Assets
Weighted Average Interest Rate
Financial Liabilities
Creditors
Total Financial Liabilities
Net Financial Assets
1997
Financial Assets
Cash and Bank Balances
Receivables
Investments
Total Financial Assets
Weighted Average Interest Rate
Financial Liabilities
Creditors
Total Financial Liabilities
Net Financial Assets
Note
20
6
20
Floating
Interest
Rate
$’000
NonInterest
Bearing
$’000
$’000
2,574
11,521
11,521
2,574
11,521
22,830
36,925
22,830
25,404
5.48%
Total
12
25,404
4,351
4,351
7,170
4,351
4,351
32,574
Note
Floating
Interest
Rate
$’000
NonInterest
Bearing
$’000
Total
$’000
20
6
20
2,711
12,139
14,850
7.49%
11,849
11,849
2,711
11,849
12,139
26,699
12
14,850
4,434
4,434
7,415
4.434
4,434
22,265
Net Fair Value of Financial Assets and Liabilities
The net fair value of cash and cash equivalents and non-interest bearing monetary financial assets
and financial liabilities of the Corporation approximates their carrying value.
Freehill Hollingdale & Page MELC3
page 24
Asset Sale Agreement
The carrying amounts and net fair values of financial assets and financial liabilities at balance
date are:
1998
Carrying
Amount
1997
Net Fair
Value
Carrying
Amount
Net Fair
Value
$’000
$’000
$’000
Financial Assets
Cash and Bank Balances
2,574
2,574
2,711
2,711
Receivables
11,521
11,521
11,849
11.849
Investments
22,830
22,830
12,139
12.139
Total Financial Assets
36,925
36,925
26,699
26,699
Creditors
4,351
4,351
4,434
4,434
Total Financial Liabilities
4,351
4,351
4,434
4,434
Financial Liabilities
Foreign Exchange Contracts
The Corporation sells wood chips to Japan and is paid in US dollars.
In order to protect against exchange rate movements, the Corporation has entered into forward
exchange contracts to sell US dollars.
The contracts are timed to mature when shipments of chips are scheduled to be paid by the
purchaser and cover anticipated sales for the ensuing six months.
At balance date, the details of the outstanding contracts are (Australian dollar equivalents):
Sell US Dollars
Buy Australian $
Average Exchange Rate
(‘000)
0 - 6 Months
3,088
0.6396
6 - 12 Months
Nil
NU
The net fair value of foreign exchange contracts is taken to be the unrealised loss at balance date
calculated by reference to the current forward dates for contracts with similar maturity profiles.
Based on open contracts that will mature within the next six months, an unrealised loss of
$167,430 may eventuate.
Freehill Hollingdale & Page MELC3
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Asset Sale Agreement
22.
DIRECTORS INFORMATION
The name of each person holding the position of Director at any time during the financial year
and the number of meetings attended by each Director is set out below:
Director
Board of Directors Meetings
Robin E Clements
Allan W Diplock
George B Little
Kevin S White
Audit Committee
George B Little
Allan W. Diplock
Kevin S White
Remuneration Committee
Robin E Clements
Allan W Diplock
George B Little
Kevin S White
23
Special
Responsibility
Maximum
Possible
Number Attended
14
14
14
14
14
14
14
14
Chairman
4
4
4
4
4
4
Chairman
3
3
3
2
3
3
3
2
Chairman
Deputy Chairman
Managing Director
DIRECTORS' REMUNERATION
Note
1998
1997
$’000
$’000
Total remuneration of all directors of the Corporation received or receivable from the
Corporation including superannuation contributions shown in Note 3. Total remuneration being
value of payments to, superannuation paid on behalf of and any non cash benefits including any
Fringe Benefits Tax payable, accruing to the Directors from the Corporation:
328
310
The number of Directors of the Corporation included in these figures are shown below in their
relevant income bands.
Note
Income of:
$30.000 to $39,999
$40,000 to S49,999
$200,000 to $209,999
$2 10.000 to $219,999
Freehill Hollingdale & Page MELC3
Number
1998
Number
1997
2
1
1
2
1
1
-
page 26
Asset Sale Agreement
24
DIRECTORS' BENEFITS
No Director of the Corporation has, during and since the financial year, received or become
entitled to receive a benefit (other than a benefit included in the total amount of emoluments
received or due and receivable by Directors shown in the accounts) by reason of a contract made
by the Corporation with the Director or with a firm of which the Director is a member, or with an
entity in which the Director has a substantial financial interest.
25
DIRECTORS' INTEREST IN CONTRACTS
No contracts involving Directors' interests have been entered into during and since the financial
year.
During the year the Corporation utilised transportation services provided by a corporation of
which a Corporation Director was also a Director but had no beneficial or financial interest.
These transactions were on the same terms and conditions as those that would occur within a
normal supplier relationship.
The aggregate amount of transactions with responsible persons and the related parties were as
follows: V-Line Freight Corporation $464,579.
26
EXECUTIVES' REMUNERATION
Note
1998
1997
$’000
$’000
Total remuneration of all executive officers other than Directors whose income was more than
$100,000 including superannuation contributions shown in Note 3. Total remuneration being the
value of payments to, superannuation paid on behalf of and any non cash benefits including any
Fringe Benefits Tax payable, accruing to the Executives.
592
596
The number of executive officers of the Corporation included in these figures is shown below in
their relevant income bands.
Note
Income of:
$ 100.000 to $109,999
$110,000 to $119,999
$120,000 to $129,999
27
1998
Number
1997
Number
1
4
3
2
INDEMNIFICATION
During the financial year the Corporation obtained insurance to indemnify all current and former
directors and executive officers of the Corporation against liabilities to persons which arise out
of the performance of their normal duties as director or executive officer unless the liability
relates to conduct involving a lack of good faith.
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Asset Sale Agreement
28
EVENTS SUBSEQUENT TO BALANCE DATE
Following the announcement in March 1998 by the Victorian Government of its decision to offer
for sale the assets and undertaking of the Victorian Plantations Corporation, it is now anticipated
that the sale will be concluded by the end of the 1998 calendar year.
29
RESPONSIBLE PERSONS -
Responsible persons, as related to the Corporation under the Financial Management Act 1994,
include:
Minister
The Hon. Pat McNamara MLA, Minister for Agriculture and Resources
Directors
The Directors of the Corporation include the Managing Director
Remuneration information is included in Note 23.
Directors' Statement
In our opinion, the Financial Statements of the Victorian Plantations Corporation for the year
ended 30 June 1998 comprising the Operating Statement, Balance Sheet and Cash Flow
Statement and Notes to the Financial Statements present fairly the financial transactions of the
Corporation during the financial year to which they relate and the financial position of the
Corporation at the end of the financial year.
In our opinion the Financial Statements are drawn up in accordance with the Directions of the
Financial Management Act 1994.
At the date of signing the Financial Statements, we are not aware of any circumstances that
render any particulars in the Financial Statements to be misleading or inaccurate.
Robin E. Clements
Chairman
Kevin S. White
Managing Director
Melbourne
27 August 1998
Freehill Hollingdale & Page MELC3
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Asset Sale Agreement
Annexure B - Allocation Statement
Freehill Hollingdale & Page MELC3
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Asset Sale Agreement
VICTORIAN PLANTATIONS CORPORATION ACT 1993 (VIC)
SECTION 37
ALLOCATION STATEMENT
VICTORIAN PLANTATIONS CORPORATION
1
Introduction
1.1
Victorian Plantations Corporation Act 1993 (Vic)
This is an allocation statement under section 37 of the VPC Act.
1.2
Defined words and references
Unless the context otherwise requires, words and phrases used in this statement
which are defined in the VPC Act have the same meaning when used in this
statement.
In addition, the following expressions have the meanings ascribed to them below:
Asset Sale Agreement means the agreement so described between the State,
VPC, the Buyer dated
.
Buyer means Forestry Victorian Plantations Pty Ltd ACN 084 801 132.
Completion means completion in accordance with clause 4 of the Asset Sale
Agreement.
Completion Date has the meaning ascribed to it in the Asset Sale Agreement.
VPC means Victorian Plantations Corporation a State business corporation
declared in accordance with the provisions of the State Owned Enterprises Act
1992 (Vic).
VPC Act means Victorian Plantations Corporation Act 1993 (Vic).
1.3
Relevant Date
In accordance with the written determination made by the Minister under section
34 of the VPC Act, this statement relates to the property, rights and liabilities of
VPC at the Completion Date (“the relevant date”).
2
Allocation of property, rights and liabilities
All:
(a)
the property, rights and liabilities specified in paragraph 4 below; and
(b)
the property, rights and liabilities of VPC which have not been transferred,
assigned or novated to or acquired on Completion by the Buyer (including,
without limitation, the Land (as defined in the Asset Sale Agreement),
are vested in the Buyer on and from the relevant date save for Specified Creditors,
Specified Assets and the Legislated Agreements (each as defined in the Asset Sale
Agreement).
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Asset Sale Agreement
3
Value of property, rights and liabilities
The consideration passing from the Buyer to the Seller in respect of the allocation
of the property, rights and liabilities pursuant to this statement will, pursuant to
section 41 of the VPC Act, have the values set out in Schedule 4 of the Asset Sale
Agreement.
4
Specified property and rights
4.1
Freeholds
All property rights and liabilities of VPC in and in relation to the following Land
(as defined in the Asset Sale Agreement):
North East Region:
Volume
Folio
1
10188
462
2
2297
459264
3
10319
849
4
10227
616
Volume
Folio
1
9256
787
2
10028
507
3
9799
165
4
9799
166
5
10284
154
6
10017
583
Volume
Folio
1
2351
191
2
10227
557
3
10227
556
4
6339
1267736
5
9329
11
6
10220
292
Volume
Folio
South West Region:
Latrobe Region:
Ballarat:
Freehill Hollingdale & Page MELC3
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Asset Sale Agreement
Ballarat:
Volume
Folio
1.
10227
555
2.
10227
554
3.
6877
336
4.
6971
135
5.
7430
890
6.
8795
512
7.
8193
682
8.
9214
740
9.
7768
121
10.
8373
89
11.
7671
97
12.
8388
708
13.
9039
358
14.
8446
735
15.
5526
1105110
16.
5526
1105132
17.
9071
114
18.
8059
976
19.
8097
764
20.
6238
1247583
21.
6238
1247584
22.
6238
1247585
23.
6238
1247586
24.
8445
443
25.
8445
442
26.
6695
1338973
27.
8617
871
28.
9361
235
29.
9275
393
30.
7665
16
31.
8955
633
32.
9997
743
33.
8955
634
Freehill Hollingdale & Page MELC3
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Asset Sale Agreement
Ballarat:
4.2
Volume
Folio
34.
9997
742
35.
8587
939
Leases and Licences
All property rights and liabilities of VPC in and in relation to the following leases
and licences:
4.3
1
Lease of Real Estate between Victorian Plantations Corporation and North
East Victoria Hang Gliding Club Inc;
2
Agreement and Lease between Rural Water Commission and DirectorGeneral of Conservation, Forests and Lands including Sub-Lease between
the Director-General of Conservation and Environment and Dandongadale
Pastoral Company Pty Limited and Sub-Lease between the DirectorGeneral of Conservation and Environment and N.J. Bohun;
3
Agreement and Lease between State Electricity Commission of Victoria;
and Director-General of Conservation and Environment;
4
Two Victorian Plantations Corporation leases for Level 3, 517 Flinders
Lane, Melbourne VIC 3000; and
5
Lease between Secretary to the Department of Natural Resources and
Environment and Victorian Plantations Corporation relates to plantations
Old Narbethong in the north east zone of the Business and plantations
Creswick and Mt Macedon in the western zone of the Business.
6
Undated lease between the Secretary to the Department of Natural
Resources and Environment and Victorian Plantations Corporation that
relates to plantations in the western zone of the Business being Stewarts
Creek and Compartment 40 Aire Valley.
Shared Plantation
Agreements.
Agreements
and
Plantation
Sharefarming
[Note: included in this section was a listing of shared plantation contracts and
shared plantation agreements and plantation sharefarming agreements. Details
have been deleted due to confidentiality considerations.]
4.4
Land Management Agreement
All property rights and liabilities of VPC in and in relation to the land management
co-operative agreement between the Secretary to the Department of Natural
Resources and Environment and Victorian Plantations Corporation which relates to
road access to adjacent Crown land, entered into pursuant to part of the
Conservation, Forests and Lands Act 1987 (Vic).
4.5
Log Supply Arrangements
[27 Log Supply Contracts were listed in this section. Details have been deleted
due to confidentiality considerations.]
Freehill Hollingdale & Page MELC3
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Asset Sale Agreement
4.6
SPE Joint Venture
[SPE Joint Venture agreements and details were listed in this section. Details have
been deleted due to confidentiality considerations].
4.7
Harvesting Contracts
[12 Harvesting Contracts with harvesting firms were listed in this section. Details
have been deleted due to confidentiality considerations.]
4.8
Research and Forestry Agreements
[4 Research and Forestry Agreements were listed in this section. Details have been
deleted due to confidentiality considerations.]
4.9
Other Contracts
[18 Service Contracts were listed in this section. Details have been deleted due to
confidentiality considerations.]
Dated
1998
Signed
....................................................
Kevin White
Chief Executive Officer
Victorian Plantations Corporation
.....................................................
A R Stockdale
Treasurer
Freehill Hollingdale & Page MELC3
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Asset Sale Agreement
VICTORIAN PLANTATIONS CORPORATION ACT 1993 (VIC)
SECTION 49
LIST OF OFFICERS AND EMPLOYEES
VICTORIAN PLANTATIONS CORPORATION
[There was a detailed listing of employees in this section. Details have been
deleted due to confidentiality considerations.]
Dated:
1998.
....................................................................
Kevin White
Chief Executive Officer
Victorian Plantations Corporation
Freehill Hollingdale & Page MELC3
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Asset Sale Agreement
Annexure C - There is no Annexure C
Freehill Hollingdale & Page MELC3
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Asset Sale Agreement
Annexure D - Form of sign off on accounts
Freehill Hollingdale & Page MELC3
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Asset Sale Agreement
[Letterhead of the Buyer]
[date]
The Treasurer of Victoria
C/- GBE Reform, PAIRD
5th Floor, 1 Treasury Place
MELBOURNE VIC 3000
Attention: Director of GBE Reform
Dear Madam
Pursuant to your request and in connection with your examination of the attached financial
statements of the Victorian Plantations Corporation for the period 30 June 1998 to [insert
Completion Date], which have been prepared by Forestry Victorian Plantations Pty Ltd ACN
084 801 132 , I make the following representations, after making appropriate enquiries of all
those who report directly to me or the Chief Executive Officer, and accordingly to the best of my
knowledge and belief.
General
1
I acknowledge responsibility for the fair presentation of the financial statements in
accordance with clause 10.1(a) of the Asset Sale Agreement dated [insert date] and the
appropriate disclosures of all information required by statute.
2
All financial records and related data have been made available for inspection. All
material transactions have been properly recorded in the accounting records underlying
the financial statements.
3
There have been no irregularities involving any member of management or other
employees that could have a material effect on the financial statements.
4
Except as disclosed to you, there have been no:
•
violations or possible violations of laws or regulations, the effects of which should
be considered for disclosure in the financial statements or as a basis for recording
a contingent loss; or
•
communications from regulatory authorities concerning non compliance with, or
deficiencies in, financial reporting practices.
Assets
5
Adequate provision has been made for allowances which may be given and for losses
which may be sustained in connection with the collection of accounts receivable and nontrade receivables.
6
There were no deficiencies or encumbrances attaching to the title of the entity’s assets at
balance date other than those reflected in the financial statements.
7
There are no agreements to repurchase assets previously recorded in the accounting
records as sold.
8
Adequate provision has been made in the financial statements for any permanent
diminution in the value to the entity of any non-current assets.
Freehill Hollingdale & Page MELC3
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Asset Sale Agreement
Liabilities
9
All liabilities which have arisen or which will arise out of the activities of the entity to the
balance date have been included in the financial statements.
10
There were no contractual commitments for capital expenditure at balance date not
included in the financial statements or the notes thereto.
11
There were no contingent liabilities, including guarantees and letters of comfort of legal
effect (other than guarantees of the entity’s self performance), at balance date which are
not disclosed in the financial statements or the notes thereto.
Other
12
To my knowledge, no events have occurred subsequent to balance date which would
require adjustment to or disclosure in the financial statements.
13
At the balance date the entity had no plans or intentions that may materially affect the
book value or classification of assets and liabilities at balance date.
14
All details concerning related party transactions and related amounts receivable or
payable (including sales, purchases, loans and guarantees) up to the balance date have
been correctly recorded in the accounting records and have been properly disclosed in the
entity’s financial statements or the notes thereto, either where required by law or
applicable accounting standard or where such disclosure is necessary for the fair
presentation of the entity’s financial statements.
15
Other than as detailed in the entity’s financial statements, Forestry Victorian Plantations
Pty Ltd ACN 084 801 132 is not aware of any breach or non-compliance with the terms
of any contractual arrangements, however caused, which could initiate claims on the
entity which would have a material effect on the entity’s financial statements.
16
Records maintained during the period were in accordance with the Australian Tax Office
requirements.
17
At the balance date there were no open put or call options related to assets or liabilities
(or potential assets or liabilities) of a material significance to the entity which could if
exercised, have a material effect on the carrying amount of assets and liabilities and the
profit and loss result for the period.
Yours faithfully,
Chief Financial Officer
Freehill Hollingdale & Page MELC3
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Asset Sale Agreement
Annexure E - Plantation Licences
Freehills MELC3
page 1
Asset Sale Agreement
Plantation Licence
Section 27B of the Victorian Plantations
Corporation Act 1993 (Vic)
Victorian Plantations Corporation
and
Hancock Victorian Plantations Pty Ltd
101 Collins Street Melbourne Victoria 3000 Australia
GPO Box 128A Melbourne 3001
Telephone (03) 9288 1234 Facsimile (03) 9288 1567 DX 240 Melbourne
Reference: RWN:SJR
MELBOURNE
SYDNEY
PERTH
CANBERRA
BRISBANE
SINGAPORE
CORRESPONDENT OFFICE IN JAKARTA
HANOI
HO CHI MINH CITY
Lia bilit y is limit e d by t he S o lic it o r s S c he me u nd e r t he P r o fe ssio na l S t a nd a r d s Ac t 1 9 9 4 ( N S W)
Freehill Hollingdale & Page MELCC
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Asset Sale Agreement
Table of contents
Clause
Page
1 Definitions and interpretation
1.1 Definitions
1.2 Interpretation
1.3 Business Day
34
34
34
34
2 Grant of Licence and use of the Licensed Land
34
3 Term
34
3.1 Commencement
3.2 Cancellation in accordance with the VPC Act
3.3 Cancellation by the Licensor
3.4 Section 17A land
34
34
34
34
4 Licence Fee
34
5 Nature of Licensee’s rights
34
6 Licensor’s entry
34
6.1 Licensor’s right of entry
6.2 Non interference
34
34
7 Public liability insurance
34
8 Indemnity by the licensee
34
9 Assignment
34
9.1 Licensee’s right to assign
9.2 Forestry Services Agreements
9.3 Licensor’s right to assign
34
34
34
10 Mortgages or charges of the Licence
34
11 Existing Rights
34
12 Native title compensation
34
13 Notices
34
13.1 How notices may be given
13.2 When notice taken as given
13.3 Change of address or fax number
Freehill Hollingdale & Page MELCC
34
34
34
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Asset Sale Agreement
14 General
14.1 Costs and expenses
14.2 Governing law and jurisdiction
14.3 Waiver
14.4 Further action
14.5 Variation of Licence
14.6 Unenforceable provision
Schedule 1 - Licensed Land
Freehill Hollingdale & Page MELCC
34
34
34
34
34
34
34
34
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Asset Sale Agreement
Plantation licence
is made on 17 November 1998 between:
1.
Victorian Plantations Corporation,
a State business corporation declared in accordance with the provisions of
the State Owned Enterprises Act 1992 (Vic) and having its principal office
at Level 3, 517 Flinders Lane, Melbourne, Victoria, 3000,
(the Licensor).
2.
Hancock Victorian Plantations Pty Ltd
ACN 084 801 132
of Level 18 Grosvenor Place, 225 George Street, Sydney, NSW, 2000
(the Licensee).
A.
The Licensor has the Licensed Land vested in it pursuant to sections 8, 8A,
8E and 8H of the VPC Act.
B.
The Licensor and the Licensee have entered into the Asset Sale Agreement
under which the Licensor agreed to grant a licence pursuant to the VPC
Act to the Licensee in respect of the Licensed Land.
C.
The Licensor will grant a licence pursuant to the VPC Act of the Licensed
Land and the Licensee will acquire the rights and agree to perform the
obligations with respect to the Licensed Land in accordance with this
Licence.
Recitals
The parties agree as follows:
1
Definitions and interpretation
1.1
Definitions
In this agreement:
Asset Sale Agreement means the Asset Sale Agreement dated 27 October 1998
between, The Honourable Alan Robert Stockdale in his capacity as Treasurer of
the State of Victoria, the Licensor and the Licensee;
Business Day means a day on which banks are open for business in Victoria,
except a Saturday, Sunday or public holiday;
Completion Date has the same meaning as in the Asset Sale Agreement;
Crown means the Crown in the right of the State of Victoria and includes each
employee, servant and agent of the Crown;
Existing Rights means any rights, of whatever kind and character, existing on or
before the Commencement Date, including, without limitation, third party rights
pursuant to agreements granted in accordance with Part 8 of the Conservation,
Forests and Lands Act 1987 (Vic), third party rights created in accordance with
the VPC Act and native title rights and interests;
Forestry Agreement means each of the following agreements:
Freehill Hollingdale & Page MELCC
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Asset Sale Agreement
(a)
the Forests (Australian Newsprint Mills Limited) Act 1980 (Vic);
(b)
the Forests (Laminex Industries Agreement) Act 1989 (Vic); and
(c)
the Forests (Dunstan Agreement) Act 1987 (Vic),
and Forestry Agreements means all of those agreements;
Forestry Services Agreement means an agreement entered into on or about the
date of this agreement pursuant to which the Licensor has subcontracted the
performance of its obligations pursuant to the Forestry Agreements and Forestry
Services Agreements means all of those agreements;
Governmental Agency means any government or any governmental, semigovernmental, administrative, fiscal or judicial body, department, commission,
tribunal, agency or entity;
Licence means this licence granted pursuant to section 27B of the VPC Act;
Licence Fee means the amount specified in the Asset Sale Agreement as payable
by the Licensee to the Licensor for this Licence;
Licensed Land means the land listed in Schedule 1 and the land described in
section 17A of the VPC Act; and
VPC Act means the Victorian Plantations Corporation Act 1993 (Vic).
1.2
Interpretation
In this Licence, headings are only for convenience and do not affect interpretation
and, unless the context requires otherwise:
(a)
words in the singular include the plural and the other way around;
(b)
words of one gender include any gender;
(c)
if a word or phrase is defined, another grammatical form of that word or
phrase has a corresponding meaning;
(d)
an expression indicating a natural person includes a company, partnership,
joint venture, association, corporation or other body corporate and a
Governmental Agency;
(e)
a reference to a party to this Licence includes that party's executors,
administrators, successors and permitted assigns;
(f)
a promise or agreement by 2 or more persons binds them jointly and
individually;
(g)
a reference to a clause, party, annexure, exhibit or schedule is a reference
to a clause of, and a party, annexure, exhibit and schedule to, this Licence
and a reference to this Licence includes any annexure, exhibit or schedule;
(h)
a reference to a thing (including, but not limited to, a right) includes any
part of that thing;
(i)
a reference to a right includes a remedy, power, authority, discretion or
benefit;
(j)
except as specified in clause 1.2(o), a reference to legislation includes any
amendment to that legislation, any consolidation or replacement of it, and
any subordinate legislation made under it;
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Asset Sale Agreement
(k)
a reference to an agreement (other than this Licence) includes an
undertaking, deed, agreement or legally enforceable arrangement or
understanding, whether or not in writing;
(l)
a reference to a document includes all amendments or supplements to, or
replacements or novations of, that document;
(m)
examples are descriptive only and not exhaustive; and
(n)
a reference to a body, other than a party to this Licence, (including, but not
limited to, an association, authority, corporation, body corporate or
institution), whether statutory or not:
(1)
which ceases to exist;
(2)
is reconstituted, renamed or replaced; or
(3)
whose powers or functions are transferred to another body,
is a reference to the body which replaces it or which serves substantially
the same purposes or has the same powers or functions; and
(o)
1.3
references to the VPC Act are references to the VPC Act as at the date of
this Licence and do not include any amendments made after the date of this
Licence.
Business Day
Where the day on or by which something must be done is not a Business Day, that
thing must be done on or by the succeeding Business Day.
2
Grant of Licence and use of the Licensed Land
(a)
The Licensor, in consideration for the payment of the Licence Fee, licenses
the Licensee to enter, occupy and use the Licensed Land, in perpetuity, in
accordance with the provisions of the VPC Act and the terms of this
Licence.
(b)
The Licensee shall have the right, while this Licence remains in force, to
enter, occupy and use the Licensed Land for the purposes specified in subsection 27B(1)(b) of the VPC Act.
(c)
In addition to the rights set out in (b), the Licensee will, while this Licence
remains in force, have the remaining rights to enter occupy and use the
Licensed Land for the purposes specified in sections 27B, 27C, 27D, 27F
and 27H of the VPC Act.
(d)
The Licensee’s rights include the right to create any interest in the Licence
or any right or other benefits conferred by it or declare that it holds any
interest in the Licence or any other right or any other benefit conferred by
it on trust for any person including without limitation any mortgage or
charge or sub-licence.
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Asset Sale Agreement
3
Term
3.1
3.2
Commencement
(a)
The Licensee must ensure that this Licence is registered in accordance with
Division 3 of Part 3A of the VPC Act on the Completion Date.
(b)
Subject to clause 3.1 (a), this Licence takes effect on the Completion Date.
Cancellation in accordance with the VPC Act
This Licence may be cancelled in accordance with sections 27H, 27I, 27J and 27M
of the VPC Act.
3.3
Cancellation by the Licensor
(a)
(b)
3.4
The Licensor acknowledges that:
(1)
sections 27H, 27I, 27J and 27M of the VPC Act apply in relation to
the cancellation of this Licence; and
(2)
sections 27(H)(1) and (2) of the VPC Act must be read
conjunctively.
The Licensor will not cancel this Licence under section 27H(2) of the VPC
Act unless the Licensee has requested the cancellation under section
27H(1) of the VPC Act.
Section 17A land
The Licensee acknowledges and agrees:
4
5
(a)
the land described in section 17A of the VPC Act will revert to the Crown
on 1 January 2015;
(b)
on and from 1 January 2015 the land described in section 17A of the VPC
Act will no longer form part of the Licensed Land; and
(c)
the Licensee will comply with the requirements in section 17A(2) of the
VPC Act.
Licence Fee
(a)
The Licensee must pay the Licence Fee to the Licensor (or to another
person if the Licensor directs in writing) without demand and without
deduction or set-off on the Completion Date.
(b)
The Licence Fee becomes the absolute property of the Licensor and will
not in any circumstances be refunded.
Nature of Licensee’s rights
This Licence does not:
(a)
create any tenancy;
Freehill Hollingdale & Page MELCC
page 4
Asset Sale Agreement
6
(b)
give the Licensee any leasehold interest in the Licensed Land; or
(c)
create any of the rights referred to in section 42 of the Transfer of Land Act
1958 (Vic).
Licensor’s entry
6.1
Licensor’s right of entry
The Licensee shall not prevent, attempt to prevent or in any way hinder, obstruct
or permit the hindrance or obstruction of the Licensor or the Licensor’s employees
or agents at any time from entering and remaining on the Licensed Land either
with or without motor vehicles or other equipment for the following purposes:
(a)
lawfully retaking or attempting to retake possession of the Licensed Land;
or
(b)
monitoring compliance by the Licensee with the VPC Act,
and the Licensor will not enter the Licensed Land for any other purpose.
6.2
Non interference
The Licensor will not unreasonably interfere with the Licensee’s use of the
Licensed Land in accordance with:
7
(a)
the terms and conditions of this Licence; and
(b)
the provisions of the VPC Act.
Public liability insurance
The Licensee shall, for the term of this Licence, maintain a public liability
insurance policy over the Licensed Land with a reputable insurer which:
8
(a)
notes the Licensor and the Crown as co-insured under the policy;
(b)
provides cover of no less than thirty (30) million dollars or such higher
amount as may be nominated by the Licensor acting reasonably for any
single occurrence during the policy period; and
(c)
includes a cross liability clause in which the insurer waives all rights of
subrogation against any of the persons comprising the insured as if a
separate policy of insurance had been issued to each of them.
Indemnity by the licensee
Subject to clause 14.4 of the Asset Sale Agreement, the Licensee shall indemnify
the Licensor and the Crown in respect of any claim or liability for property
damage or injury or death of any person which arises directly or indirectly out of
negligence, any other tortious act, breach of contract, or breach of a statutory duty
by the Licensee, its employees and agents including, but not limited to, any claim
or liability arising from the pollution or contamination of land or water, and any
costs, charges and expenses incurred in connection therewith.
Freehill Hollingdale & Page MELCC
page 5
Asset Sale Agreement
9
Assignment
9.1
Licensee’s right to assign
The Licensee must not assign this Licence, in whole or in part, except in
accordance with sections 27C, 27N, 27O of the VPC Act and clause 9.2 of
this Licence.
9.2
9.3
Forestry Services Agreements
(a)
The Licensee acknowledges that it has rights and obligations pursuant to
the Forestry Services Agreements.
(b)
If an assignment of the Licensee’s right, title and interest in this Licence to
an assignee (the “Assignee”) would mean that the Licensee would be
unable to perform its obligations under a Forestry Services Agreement, the
Licensee must:
(1)
obtain the prior written approval of the Licensor to the assignment;
and
(2)
not assign its right, title and interest in this Licence unless it also
assigns its rights and obligations under the relevant Forestry
Services Agreement to the Assignee.
(c)
The Licensor must not withhold its approval to an assignment by the
Licensee under clause 9.2(b), unless, within 30 days of any request for
approval, in the opinion of an independent Chartered Accountant,
nominated by the President of the Institute of Chartered Accountants
(Victoria), the proposed assignee is insolvent or unlikely to be capable of
performing the other party’s obligations under the Forestry Services
Agreements.
(d)
For the avoidance of doubt, the Licensor acknowledges and agrees that the
Licensee may assign its right, title and interest in that part of the Licensed
Land which does not pertain to the performance of its obligations under a
Forestry Services Agreement, without the prior written approval of the
Licensor.
Licensor’s right to assign
The Licensor may, in its absolute discretion, assign its rights (and, if applicable,
its obligations) under this Licence to any Governmental Agency in such a way as
preserves the Licensee’s interest
10
Mortgages or charges of the Licence
The Licensee may, without the need to obtain the consent of the Licensor,
mortgage or charge the whole of its interest under this Licence and it shall not be
necessary for any notice of any such mortgage or charge to be given by the
Licensee to the Licensor, but any sale or assignment or transfer upon default of
such mortgage or charge shall be deemed to be an assignment of the Licence and
shall require compliance with sections 27C, 27N and 27O of the VPC Act.
Freehill Hollingdale & Page MELCC
page 6
Asset Sale Agreement
11
Existing Rights
Subject to clause 12, the Licensee acknowledges that it takes this Licence subject
to Existing Rights over the Licensed Land. The Licensee shall, for the term of the
Licence, observe, perform and fulfil the terms, conditions, rights and obligations
of every such Existing Right.
12
Native title compensation
The Licensor agrees that, notwithstanding clause 8 and 11:
13
(a)
the Licensee has no liability for any compensation which may be payable
to any party in relation to the passage of the VPC Act and Land Titles
Validation Act 1993 (Vic); and
(b)
the liability referred to in clause 12(a) remains the responsibility of the
State.
Notices
13.1 How notices may be given
A notice, request, demand, consent or approval under this Licence:
(a)
must be in writing;
(b)
may be signed for the party giving it by the party’s authorised officer or
solicitor;
(c)
may be delivered personally to the person to whom it is addressed, or left
at or sent by prepaid post to the person’s address, or faxed to the person’s
fax number, given below:
(1)
if to the Licensor
Address:
Level 5, 1 Treasury Place
Melbourne VIC 3000
Attention:
(2)
The Chairman
if to the Licensee
Address:
Level 18, Grosvenor Place, 225 George Street
Sydney NSW 2000
Fax:
02 9258 1124
Attention:
Bruce McKnight
13.2 When notice taken as given
A notice is taken as given by the sender and received by the intended recipient:
(a)
if posted, 3 Business Days after posting; and
(b)
if faxed, on completion of the transmission,
Freehill Hollingdale & Page MELCC
page 7
Asset Sale Agreement
but if delivery or receipt is on a day which is not a Business Day or is after 5.00pm
at the place of delivery or receipt, it is taken as given at 9.00am on the next
Business Day.
13.3 Change of address or fax number
A party may change its address or fax number for notices by giving written notice
to the other party.
14
General
14.1 Costs and expenses
(a)
Each party must pay its own costs and expenses for the negotiation and
preparation of this Licence.
(b)
The Licensee must pay any stamp duty or other taxes concerning the
Licence.
(c)
The Licensee will pay all costs, charges and expenses which the Licensor
or the Crown may reasonably incur (including, without limitation legal
costs on a full indemnity basis) in consequence of or in connection with
any breach or default by the Licensee in the performance or observance of
any of the covenants and conditions of this Licence.
(d)
The Licensee will pay all of the costs of any accountant appointed under
clause 9.2(c).
14.2 Governing law and jurisdiction
(a)
This Licence is governed by the law of Victoria
(b)
Each party irrevocably submits to the jurisdiction of the courts of Victoria
and courts hearing appeals from them.
14.3 Waiver
(a)
A party waives a right under this Licence only if it does so in writing.
(b)
A party does not waive a right simply because it:
(c)
(1)
fails to exercise the right;
(2)
delays exercising the right; or
(3)
only exercises part of the right.
A waiver of one breach of a term of this Licence does not operate as a
waiver of another breach of the same term or any other term.
14.4 Further action
(a)
Each party must promptly sign any document and do anything else that is
necessary or reasonably requested by the other party to give full effect to
this Licence.
Freehill Hollingdale & Page MELCC
page 8
Asset Sale Agreement
(b)
If there is land vested in the Licensor pursuant to sections 8, 8A, 8E and
8H of the VPC Act which was intended by the parties to form part of the
Licensed Land, the Licensor upon becoming aware of this, shall use its
best endeavours to grant a new licence pursuant to section 27B of the VPC
Act to the Licensee in respect of that land.
14.5 Variation of Licence
A variation of this Licence must be in writing and signed by each party to the
Licence or by persons authorised to sign for them.
14.6 Unenforceable provision
If a provision in this Licence is wholly or partly invalid or unenforceable in any
jurisdiction, that provision or part must, to that extent and in that jurisdiction, be
treated as deleted from this Licence. This does not affect the validity or
enforceability of the remaining provisions or of the deleted provision in other
jurisdictions.
Freehill Hollingdale & Page MELCC
page 9
Asset Sale Agreement
Schedule 1 - Licensed Land
(List of certified plans lodged at the Central Plan Office under the Survey Co-ordination Act 1958)
Plantation
Crown
Allotment
Mt Mercer
82A
Cape Clear
6B3
G
Clarkesdale
CP116707-A
Cape Clear
2Y
A
Mindai
CP116707-A
Carngham
10
2
Chepstowe
CP116535
Carngham
3A
8
Chepstowe
CP116535
Durham Lead
7H, 7G
4
Clarendon
CP117795
Durham Lead
3
5
Clarendon
CP117796
Canadian
A5, A6
Ballarat
CP117822
Canadian
A2
Ballarat
CP117064
Canadian
B6
Ballarat
CP117065
Yarrowee
2B
16
Ballarat
CP116651-A
Yarrowee
9C
14
Ballarat
CP116651-A
Yarrowee
10L, 10K
12
Ballarat
CP116651-A
Yarrowee
24A, 22A
17A
Ballarat
CP116651-A
Irrewillipe
47
Macedon
23H, 23J,
23K, 23L
C
Macedon
CP117029-A
Macedon
19A
G
Woodend
CP117029-A
Macedon
10D, 10E
D
Macedon
CP116768
Macedon
40A, 41A
F
Woodend
CP116768
Campbells Creek
10F
G3
Castlemaine
Wylies
4J
Happy Valley
6
Scarsdale
Section
Parish
Enfield
Natte Murrang
Certified Plan
CP116370
CP116371
CP117642-A
Enfield
CP117781
48
Scarsdale
CP117965
3
47
Scarsdale
CP117964
Scarsdale
2F
B
Argyle
CP117964
Scarsdale
2G
B
Argyle
CP117966
Mt Lonarch
10C, 10D
B
Glenpatrick
CP118067
Mt Lonarch
10X, 10Y,
10Z
A
Raglan
CP118067
Mt Lonarch
10A, 10B
D
Langi-Kal-Kal
CP118067
Mt Lonarch
4C
C
Amphitheatre
CP118067
Mt Lonarch
5A1
63A
Raglan
CP118085
Mt Lonarch
10X1
A
Raglan
CP118616
Mt Beckworth
A8
Clunes
CP117806
Freehill Hollingdale & Page MELCC
page 10
Asset Sale Agreement
Plantation
Crown
Allotment
Section
Parish
Certified Plan
Creswick
Y30A, Y30B,
Y30C, Y30D
Creswick
CP117882
Creswick
Y29C, Y29D,
Y29F, Y29E
Creswick
CP117866
Creswick
6
89
Creswick
CP117883
Cobblers Gully
5H
S
Creswick
CP117995
Long Point
2B
P
Creswick
CP117996
Bald Hill
3
7
Creswick
CP117997
Bald Hill
61, 62
17
Creswick
CP117997
Petticoat
87C
Ballarat
CP117998
Petticoat
2, 3
W
Ballarat
CP117998
Petticoat
16
X
Ballarat
CP117998
Petticoat
9D
P
Ballarat
CP117998
Aire Valley
15F
Olangolah
CP118068
Aire Valley
15G
Olangolah
CP118069
Aire Valley
15H
Olangolah
CP118070
Aire Valley
15L
Olangolah
CP118072
Aire Valley
29L
Olangolah
CP118073
Aire Valley
29M
Olangolah
CP118074
Aire Valley
36A
Wyelangta
CP118079
Aire Valley
36B
Wyelangta
CP118080
Aire Valley
34E
Weeaproinah
CP118083
Beechforest
15J, 15K
Olangolah
CP118071
Boonah
5D, 6H, 8E,
34J, 34K, 34L
Wensleydale
CP117851
Yaugher
59F
Gerangamete
CP117641
Stevensons Falls
74C, 74D, 78D
Barramunga
CP117762
Webster Hill
54D, 54E, 54F
Barramunga
CP117985
Webster Hill
2D
Olangolah
CP117985
McDevitt
17J
Moorbanool
CP117984
Meehans
66E
Barramunga
CP117849
Bungal
79B
Bungal
CP117797
Basalt
4A, 4B, 4C
E
Wombat
CP117859
Spargo
12A
A
Korweinguboora
CP117823
Spargo
12B
A
Korweinguboora
CP117824
Spargo
16C
A
Korweinguboora
CP117825
Spargo
19A
A
Korweinguboora
CP117827
Freehill Hollingdale & Page MELCC
page 11
Asset Sale Agreement
Plantation
Crown
Allotment
Section
Parish
Spargo
3
14
Moorarbool West
CP117829
Bells Reef
46B
2A
Wombat
CP117884
Campaspe
Seed Orchard
80
D
Woodend
CP117648
Lal Lal Seed
Orchard
21E
Borhoneyghurk
CP117342
Giffard
19A
Giffard
CP117021
Darlimurla
126F
Mirboo
CP117423
Darlimurla
34Q, 34R,
34S, 34M
Narracan South
CP117424
Jeeralang
8C
A
Budgeree
CP117096
Jeeralang
26B
A
Budgeree
CP117095
Livingston
19C
A
Budgeree
CP117166
Livingston
62E
Mirboo
CP117208
Livingston
90L
Mirboo
CP117539
Livingston
34B
Gunyah Gunyah
CP117293
Livingston
32E
Gunyah Gunyah
CP117209
Livingston
90C1
Mirboo
CP117118
Livingston
8B
Gunyah Gunyah
CP117119
Livingston
6A2
Gunyah Gunyah
CP117241
Livingston
44D
Gunyah Gunyah
CP117264-A
Livingston
25A
Wonyip
CP117290
Boolarra South
132E
Mirboo
CP117461
Boolarra South
133G
Mirboo
CP117462
Boolarra South
2B
Gunyah Gunyah
CP117167
Boolarra South
51A7
Mirboo South
CP117168
Turtons
54L
Mirboo South
CP117338
Turtons
52L
Mirboo South
CP117337
Turtons
52J
Mirboo South
CP117339
Turtons
51H1
Mirboo South
CP117075
Turtons
69A
Mirboo South
CP117023-A
Turtons
6B
A
Woorarra
CP117032
Turtons
6C
A
Woorarra
CP117033
Turtons
59G
Mirboo South
CP117031
Turtons
4D
Mirboo South
CP117030-A
Turtons
72B
Mirboo South
CP117074
Woorarra
68B
Gunyah Gunyah
CP117930
Freehill Hollingdale & Page MELCC
C
A
Certified Plan
page 12
Asset Sale Agreement
Plantation
Crown
Allotment
Woorarra
68C
Woorarra
37B
Woorarra
Section
Parish
Certified Plan
Gunyah Gunyah
CP117931
A
Woorarra
CP117269
34D
A
Woorarra
CP117270
Woorarra
9A
B
Woorarra
CP117816
Woorarra
43C
B
Woorarra
CP117817
Woorarra
43D
B
Woorarra
CP117818
Woorarra
12E
C
Woorarra
CP117820
Woorarra
11A
C
Woorarra
CP117819
Woorarra
79D
Wonyip
CP117815
Woorarra
68A
Wonyip
CP117814
Woorarra
68E
Wonyip
CP117845
Woorarra
1C
Wonyip
CP117813
Woorarra
39B
B
Wonga Wonga
CP116984
Woorarra
19Q, 19R, 19T,
19U, 19V, 19W
B
Toora
Albert
57R1
Binginwarri
CP117662
Albert
58S
Binginwarri
CP117663
Albert
17E
Wonyip
CP117661
Albert
91F
Binginwarri
CP117478
Albert
92C
Binginwarri
CP117479
Albert
54F1
Binginwarri
CP117480
Albert
94D
Binginwarri
CP117706
Albert
94E
Binginwarri
CP117481
Albert
95G
Binginwarri
CP117483
Albert
95Q
Binginwarri
CP117484
Albert
95H
Binginwarri
CP117482
Albert
62L
Binginwarri
CP117595
Albert
62K
Binginwarri
CP117597
Albert
64E
Binginwarri
CP117598
Albert
66C
Binginwarri
CP117596
Jack
77H
Binginwarri
CP117538
Jack
92E
Binginwarri
CP117864
Jack
92F, 92G
Binginwarri
CP117865
Jack
8A
Bulga
CP117812
Jack
121H
Devon
CP117620
Jack
122C
Devon
CP117618
Freehill Hollingdale & Page MELCC
C
CP117367-A
page 13
Asset Sale Agreement
Plantation
Crown
Allotment
Section
Parish
Certified Plan
Jack
64J, 64K,
64L
Devon
CP117616
Jack
126B
Devon
CP117705
Jack
112A
Devon
CP117619
Jack
97D
Binginwarri
Jack
157E
Devon
CP117593
Jack
157F
Devon
CP117564
Jack
73J
Binginwarri
CP117476
Jack
74N
Binginwarri
CP117541
Macks
6F
B
Bulga
CP117361
Macks
6H
B
Bulga
CP117362
Macks
3B
B
Bulga
CP117360
Macks
9F, 9G, 9J
A
Bulga
CP117359
Macks
76A
Wonwron
CP117565
Macks
65G, 65H
Wonwron
CP117528
Bodman
9B, 12A
Carrajung
CP117707
Bodman
32J
Carrajung
CP117708
Bodman
18B
A
Callignee
CP117709
Bodman
22B
A
Bulga
CP117683
Bodman
20A
A
Callignee
CP117684
Bodman
43C, 43D
A
Boodyarn
CP117733
Bodman
14C
B
Boodyarn
CP117734-A
Bodman
2D
B
Boodyarn
CP117637
Gelliondale
29B
A
Alberton West
CP117022
Mullungdung
70C
A
Stradbroke
CP116993
Mullungdung
71J
Willung
CP117368-A
Mullungdung
75J
Carrajung
CP117077-A
Callignee
34F
Callignee
CP117540-A
Callignee
49K
Willung
CP117434
Callignee
1Q, 1R
A
Callignee
CP117726
Callignee
18E
B
Callignee
CP117727
Callignee
29E
Callignee
CP117728
Callignee
49G
Willung
CP117731
Callignee
11B
Callignee
CP117725
Callignee
73F
Callignee
CP117729
Callignee
5A
Callignee
CP117730
Freehill Hollingdale & Page MELCC
A
A
CP117617-A
page 14
Asset Sale Agreement
Plantation
Crown
Allotment
Section
Parish
Callignee
23D
A
Callignee
CP117732
Callignee
21C
A
Callignee
CP117664
Callignee
21D
A
Callignee
CP117665
Wonwron
55E, 55F
Carrajung
CP117350A
Wonwron
8C
Boodyarn
CP117364
Wonwron
8A
Boodyarn
CP117351
Wonwron
33F
Woranga
CP116992
Wonwron
1C
Woranga
CP117112
Leongatha
122M
Allambee East
CP117323-A
Leongatha
101E
Allambee East
CP117324
Mullungdung
57B
Willung
CP117537
Callignee
50A
Willung
CP110477-A
Allambee
19D, 19E, 19F
Allambee East
CP117382
Allambee
8C, 8D
Allambee East
CP117383
Allambee
118A
Warragul
CP117384
Allambee
16D
Allambee
CP117385
Loch Valley
2H
Noojee East
CP117899
Loch Valley
2J
Noojee East
CP117900
Loch Valley
2K
Noojee East
CP117901
Loch Valley
48L
Noojee East
CP117902
Loch Valley
49Q
Noojee East
CP117903
Neerim East
36K, 36L
Neerim
CP118010
Neerim East
54A
Neerim East
CP118010
Moondarra
64
Tanjil East
CP117763
Childers
26B, 26C, 30
Moe
CP117089
Ballas
53D
C
Wulla Wullock
CP116991
Jeeralang
Traralgon
33J, 33K,
33M, 33N
A
Traralgon
Latrobe Office
50E
Stockyard Creek
11D
9
Dorchap
Gardiners
20B
D
Strathbogie
CP116492
Mt Piper
15B
E
Strathbogie
CP117636
McDonalds
4A
E
Strathbogie
CP117363
Mystic
7
K
Bright
CP117026
Racecourse
14H
C
Bright
CP117120
Chiltern
19A
4
Barambogie
Freehill Hollingdale & Page MELCC
A
A
Yarram Yarram
Certified Plan
CP117421-A
CP117941
CP116426-A
CP116947-A
page 15
Asset Sale Agreement
Plantation
Crown
Allotment
Section
Parish
Bullhead
1E, 5D
14
Mitta Mitta
CP117017
Bullhead
1J
14
Mitta Mitta
CP117048
Bullhead
9B
14
Mitta Mitta
CP117049
Rose Valley
9C, 11C
Matong North
CP117757
Too-rour
8A
C
Too-rour
CP117944
Warrenbayne
1C
D
Lima
CP117947
Warrenbayne
19C, 19D
A
Boho
CP117945
Warrenbayne
25B
A
Boho
CP117946
Fenns
20
C
Moorngag
CP117719-A
Spring Creek
14, 14A, 14B
C
Moorngag
CP117721
Blue Range
10B, 10C, 10D
C
Dueran
CP117720
Kopps
10B
B
Dueran
CP117355
Kopps
10D
B
Dueran
CP117356
Kopps
10E
B
Dueran
CP117357
McRaes/Tromps
4G, 4H
C
Dueran
CP117553
McRaes/Tromps
15A, 15B
B
Dueran
CP117553
Holland
4K, 4L
Toombullup
CP117848
Contes
4J
Toombullup
CP117847
Archerton
33B
Toombullup
CP117113
Archerton
32C
Toombullup
CP117165
15 Mile Creek
11, 12
Whitfield South
CP117894
15 Mile Creek
56C
Toombullup
CP117894
15 Mile Creek
13A, 13B
3
Whitfield South
CP118631
Boggy
4A
1
Whitfield South
CP117097
Mohican
56, 57, 58
Glendale
CP117968
Glendale
13A
A
Niagaroon
CP117969
Glendale
13B
A
Niagaroon
CP117970
Mt Robertson
5B
A
Derril
CP117833
Mt Robertson
9M
C
Flowerdale
CP117835
Mt Robertson
14F
C
Flowerdale
CP117836
Mt Robertson
4G
Kinglake
CP117838
Narbethong
Robbies
9A, 10, 11,
13
B
Granton
CP117916-A
Junction
6D
7
Wandiligong
CP117474-A
Braithwaites
16
1A
Porepunkah
CP117475
One Mile Creek
8A
1
Porepunkah
CP118060
Freehill Hollingdale & Page MELCC
3
Certified Plan
page 16
Asset Sale Agreement
Crown
Allotment
Section
Parish
Havilah
Porepunkah
13B
F
Porepunkah
CP118061
Havilah
Porepunkah
13A
F
Porepunkah
CP118062
Havilah
Porepunkah
9E, 9F, 9G
23
Barwidgee
CP118063
Havilah
Porepunkah
14A
12
Tawanga
CP118064
Havilah
Porepunkah
22
15
Tawanga
CP118065
Running Creek
Bright
14D
15
Tawanga
CP117532
Running Creek
Bright
14E
15
Tawanga
CP117533
Bright
Porepunkah
14D
4
Porepunkah
CP117471
Two Mile Creek &
Morses Creek
3A
10A
Porepunkah
CP117967
Two Mile Creek &
Morses Creek
1C,7A
K
Bright
CP117967
Two Mile Creek &
Morses Creek
S23E, S23F,
S23G, S23H,
S30E
Bright
CP117967
Hill
17H
C
Bright
CP117764
Racecource
19D
C
Bright
CP117654
Freeburgh
15B
Freeburgh
CP117457
Smoko
50H
Freeburgh
CP117458
Smoko
51
Freeburgh
CP117459
Smoko
52E
Freeburgh
CP117460
Magpie
15, 16
Stanley
CP117910
Magpie
17
Stanley
CP117911
Stanley
14
Stanley
CP117963
Stanley
Bruarong
7A
14A
Stanley
CP117914
Stanley
Bruarong
17C
11A
Stanley
CP117913
Stanley
Bruarong
13B
11A
Stanley
CP117912
Stanley
Bruarong
10A
1B
Bruarong
CP117906
Bruarong
4E
3
Bruarong
CP117907
Plantation
Freehill Hollingdale & Page MELCC
Certified Plan
page 17
Asset Sale Agreement
Plantation
Crown
Allotment
Section
Parish
Bruarong
2B
2
Bruarong
CP117314
Dingle
9, 10, 11
13A
Stanley
CP117675
MyrtlefordCircular Creek
16
16
Mudgeegonga
CP117455
MyrtlefordGranite Creek
14, 15
10
Mudgeegonga
CP117896
MyrtlefordBasin Creek
7
15
Mudgeegonga
CP117897
Ovens
12B
4
Myrtleford
CP118001
Ovens
8A, 8B
0
Myrtleford
CP118002
Merriang,
Running Creek,
Long Corner Creek
37E, 37F
Bungamero
CP117783
Hurdle Creek
4E, 5A, 7A
Bungamero
CP117783
Cropper Creek
3, 4, 5
Winteriga
CP117783
Cropper Creek
14A
Dandongadale
CP117783
Gould
41F
Granya
CP117358
Gould
11F
1
Berringama
CP118048
Gould
1D
1
Berringama
CP118044
Gould
66G, 66H
Granya
CP118041
Gould
7T
1
Berringama
CP118045
Gould
3J
1
Berringama
CP118047
Lawson-Burrowye
30A, 30B, 30C
Koetong
CP117950
Lawson-Burrowye
37L
Koetong
CP117952
Lawson-Burrowye
37M
Koetong
CP117953
Lawson-Burrowye
38J
Koetong
CP117954
Lawson-Burrowye
30D
Koetong
CP117955
Lawson-Burrowye
9C
Koetong
CP117956
Lawson-Burrowye
37N
Koetong
CP118561
Sullivans
20D, 20E,
20G, 20F
Koetong
CP117949
Napoleon Gully
13D
Koetong
CP117621
Lucyvale
7U
1
Berringama
CP118005
Jemba
4G
1
Jinjellic
CP117979
Koetong
49D
Koetong
CP117958
Koetong
21A
1
Jinjellic
CP117977
Walwa
14A, 14C
1
Jinjellic
CP117463
Walwa
13A, 25A
15
Burrowye
CP117464
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8
A
A
Certified Plan
page 18
Asset Sale Agreement
Plantation
Crown
Allotment
Section
Parish
Jinjellic
20A
2
Jinjellic
CP117980
Railway
17L
A
Berringama
CP118035
Railway
17M
A
Berringama
CP118036
Wabba
41D, 41E
Canabore
CP117699
Hardings
16B
Burrowye
CP117271
Bullioh
2E, 2F
Canabore
CP117579
Everton
5C
Murmungee
CP117242
Whisky
15B
Toombullup
North
CP117846
Whisky
4M, 4N
Toombullup
CP117846
Emerson
5A, 5B
11
Drik Drik
CP117504-A
Lyons
12
B
Glenaulin
CP117466
Lyons
13, 14
B
Glenaulin
CP117468
Mt Richmond
9
2
Mouzie
CP117019
Mt Richmond
3A, 4A
6
Mouzie
CP117019
Kangaroo Park
81G
Winyayung
CP117397
Slater
2F, 2G
12
Myamyn
CP117393
Porter
4A
21
Myamyn
CP117394
Malseeds
7
14
Greenhills
CP117024
Weerona
11B
A
Hotspur
CP117067
Simpkin
19C
A
Hotspur
CP117068
Brisbane
1A, 21A
Glenaulin
CP117395
Brisbane
23A
Glenaulin
CP117396
Brisbane
26A
B
Hotspur
CP117396
Smokey Valley
5A
A
Glenaulin
CP116652
Smokey Valley
3E
A
Glenaulin
CP116653
Kentbruck
45
Warrain
CP117431
Kentbruck
6, 7
3
Kentbruck
CP117431
Kentbruck
12E
2
Kentbruck
CP117431
Bahgallah
29B
Bahgallah
CP117117
Rennick
19, 20C
Malanganee
CP118007
Rennick
18A, 16C, 16D
Palpara
CP118007
Rennick
38, 39
Wanwin
CP118114
Rennick
32C, 32D
Wanwin
CP117094
Rennick
9E, 11B
Palpara
CP117020
Rennick
62C
Mumbannar
CP117392
Freehill Hollingdale & Page MELCC
15
D
Certified Plan
page 19
Asset Sale Agreement
Plantation
Crown
Allotment
Section
Parish
Certified Plan
Lane
1A, 5B, 14C,
12C
A
Weecurra
CP117406
Read
6A
10
Digby
CP117088
Mocamboro
5
16
Mocamboro
CP117018
Freehill Hollingdale & Page MELCC
page 20
Asset Sale Agreement
Executed as an agreement:
The common seal of
Victorian Plantations Corporation
is affixed to this document:
_______________________________
Secretary/Director
_________________________________
Director
_______________________________
Name (please print)
_________________________________
Name (please print)
The common seal of
Hancock Victorian
Plantations Pty Ltd
is affixed to this document:
_______________________________
Secretary/Director
_________________________________
Director
_______________________________
Name (please print)
_________________________________
Name (please print)
Freehill Hollingdale & Page MELCC
page 21
Asset Sale Agreement
Plantation Licence
Section 27B of the Victorian Plantations
Corporation Act 1993 (Vic)
Victorian Plantations Corporation
and
Hancock Victorian Plantations Pty Ltd
101 Collins Street Melbourne Victoria 3000 Australia
GPO Box 128A Melbourne 3001
Telephone (03) 9288 1234 Facsimile (03) 9288 1567 DX 240 Melbourne
Reference: RWN:SJR
MELBOURNE
SYDNEY
PERTH
CANBERRA
BRISBANE
SINGAPORE
CORRESPONDENT OFFICE IN JAKARTA
HANOI
HO CHI MINH CITY
Lia bilit y is limit e d by t he S o lic it o r s S c he me u nd e r t he P r o fe ssio na l S t a nd a r d s Ac t 1 9 9 4 ( N S W)
Freehill Hollingdale & Page MELCC
page 1
Asset Sale Agreement
Table of contents
Clause
Page
1 Definitions and interpretation
1.1 Definitions
1.2 Interpretation
1.3 Business Day
34
34
34
34
2 Grant of Licence and use of the Licensed Land
34
3 Term
34
3.1 Commencement
3.2 Cancellation in accordance with the VPC Act
3.3 Cancellation by the Licensor
3.4 Termination
34
34
34
34
4 Licence Fee
34
5 Nature of Licensee’s rights
34
6 Licensor’s entry
34
6.1 Licensor’s right of entry
6.2 Non interference
34
34
7 Public liability insurance
34
8 Indemnity by the licensee
34
9 Assignment
34
9.1 Licensee’s right to assign
9.2 Forestry Services Agreements
9.3 Licensor’s right to assign
34
34
34
10 Mortgages or charges of the Licence
34
11 Existing Rights
34
12 Native title compensation
34
13 Final Harvest
34
14 Notices
34
14.1 How notices may be given
14.2 When notice taken as given
14.3 Change of address or fax number
Freehill Hollingdale & Page MELCC
34
34
34
page 2
Asset Sale Agreement
15 General
15.1 Costs and expenses
15.2 Governing law and jurisdiction
15.3 Waiver
15.4 Further action
15.5 Variation of Licence
15.6 Unenforceable provision
Schedule 1 - Licensed Land
Freehill Hollingdale & Page MELCC
34
34
34
34
34
34
34
34
page 3
Asset Sale Agreement
Plantation licence
is made on 3 December 1998 between:
1.
Victorian Plantations Corporation,
a State business corporation declared in accordance with the provisions of
the State Owned Enterprises Act 1992 (Vic) and having its principal office
at Level 3, 517 Flinders Lane, Melbourne, Victoria, 3000,
(the Licensor).
2.
Hancock Victorian Plantations Pty Ltd
ACN 084 801 132
of Level 18 Grosvenor Place, 225 George Street, Sydney, NSW, 2000
(the Licensee).
A.
The Licensor has the Licensed Land vested in it pursuant to sections 8, 8A,
8E and 8H of the VPC Act.
B.
The Licensor and the Licensee have entered into the Asset Sale Agreement
under which the Licensor agreed to grant a licence pursuant to the VPC
Act to the Licensee in respect of the Licensed Land.
C.
The Licensor will grant a licence pursuant to the VPC Act of the Licensed
Land and the Licensee will acquire the rights and agree to perform the
obligations with respect to the Licensed Land in accordance with this
Licence.
Recitals
The parties agree as follows:
1
Definitions and interpretation
1.1
Definitions
In this agreement:
Asset Sale Agreement means the Asset Sale Agreement dated 27 October 1998
between, The Honourable Alan Robert Stockdale in his capacity as Treasurer of
the State of Victoria, the Licensor and the Licensee;
Business Day means a day on which banks are open for business in Victoria,
except a Saturday, Sunday or public holiday;
Completion Date has the same meaning as in the Asset Sale Agreement;
Crown means the Crown in the right of the State of Victoria and includes each
employee, servant and agent of the Crown;
Existing Rights means any rights, of whatever kind and character, existing on or
before the Commencement Date, including, without limitation, third party rights
pursuant to agreements granted in accordance with Part 8 of the Conservation,
Forests and Lands Act 1987 (Vic), third party rights created in accordance with
the VPC Act and native title rights and interests;
Forestry Agreement means each of the following agreements:
Freehill Hollingdale & Page MELCC
page 1
Asset Sale Agreement
(a)
the Forests (Australian Newsprint Mills Limited) Act 1980 (Vic);
(b)
the Forests (Laminex Industries Agreement) Act 1989 (Vic); and
(c)
the Forests (Dunstan Agreement) Act 1987 (Vic),
and Forestry Agreements means all of those agreements;
Forestry Services Agreement means an agreement entered into on or about the
date of this agreement pursuant to which the Licensor has subcontracted the
performance of its obligations pursuant to the Forestry Agreements and Forestry
Services Agreements means all of those agreements;
Governmental Agency means any government or any governmental, semigovernmental, administrative, fiscal or judicial body, department, commission,
tribunal, agency or entity;
Licence means this licence granted pursuant to section 27B of the VPC Act;
Licence Fee means the amount specified in the Asset Sale Agreement as payable
by the Licensee to the Licensor for this Licence;
Licensed Land means the land described in Schedule 1; and
VPC Act means the Victorian Plantations Corporation Act 1993 (Vic).
1.2
Interpretation
In this Licence, headings are only for convenience and do not affect interpretation
and, unless the context requires otherwise:
(a)
words in the singular include the plural and the other way around;
(b)
words of one gender include any gender;
(c)
if a word or phrase is defined, another grammatical form of that word or
phrase has a corresponding meaning;
(d)
an expression indicating a natural person includes a company, partnership,
joint venture, association, corporation or other body corporate and a
Governmental Agency;
(e)
a reference to a party to this Licence includes that party's executors,
administrators, successors and permitted assigns;
(f)
a promise or agreement by 2 or more persons binds them jointly and
individually;
(g)
a reference to a clause, party, annexure, exhibit or schedule is a reference
to a clause of, and a party, annexure, exhibit and schedule to, this Licence
and a reference to this Licence includes any annexure, exhibit or schedule;
(h)
a reference to a thing (including, but not limited to, a right) includes any
part of that thing;
(i)
a reference to a right includes a remedy, power, authority, discretion or
benefit;
(j)
except as specified in clause 1.2(o), a reference to legislation includes any
amendment to that legislation, any consolidation or replacement of it, and
any subordinate legislation made under it;
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page 2
Asset Sale Agreement
(k)
a reference to an agreement (other than this Licence) includes an
undertaking, deed, agreement or legally enforceable arrangement or
understanding, whether or not in writing;
(l)
a reference to a document includes all amendments or supplements to, or
replacements or novations of, that document;
(m)
examples are descriptive only and not exhaustive; and
(n)
a reference to a body, other than a party to this Licence, (including, but not
limited to, an association, authority, corporation, body corporate or
institution), whether statutory or not:
(1)
which ceases to exist;
(2)
is reconstituted, renamed or replaced; or
(3)
whose powers or functions are transferred to another body,
is a reference to the body which replaces it or which serves substantially
the same purposes or has the same powers or functions; and
(o)
1.3
references to the VPC Act are references to the VPC Act as at the date of
this Licence and do not include any amendments made after the date of this
Licence.
Business Day
Where the day on or by which something must be done is not a Business Day, that
thing must be done on or by the succeeding Business Day.
2
Grant of Licence and use of the Licensed Land
(a)
The Licensor, in consideration for the payment of the Licence Fee, licenses
the Licensee to enter, occupy and use the Licensed Land, until 31
December 2010, in accordance with the provisions of the VPC Act and the
terms of this Licence.
(b)
The Licensee shall have the right, while this Licence remains in force, to
enter, occupy and use the Licensed Land for the purposes specified in subsection 27B(1)(b) of the VPC Act.
(c)
In addition to the rights set out in (b), the Licensee will, while this Licence
remains in force, have the remaining rights to enter occupy and use the
Licensed Land for the purposes specified in sections 27B, 27C, 27D, 27F
and 27H of the VPC Act.
(d)
The Licensee’s rights include the right to create any interest in the Licence
or any right or other benefits conferred by it or declare that it holds any
interest in the Licence or any other right or any other benefit conferred by
it on trust for any person including without limitation any mortgage or
charge or sub-licence.
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Asset Sale Agreement
3
Term
3.1
3.2
Commencement
(a)
The Licensee must ensure that this Licence is registered in accordance with
Division 3 of Part 3A of the VPC Act on the Completion Date.
(b)
Subject to clause 3.1 (a), this Licence takes effect on the Completion Date.
Cancellation in accordance with the VPC Act
This Licence may be cancelled in accordance with sections 27H, 27I, 27J and 27M
of the VPC Act.
3.3
Cancellation by the Licensor
(a)
(b)
3.4
The Licensor acknowledges that:
(1)
sections 27H, 27I, 27J and 27M of the VPC Act apply in relation to
the cancellation of this Licence; and
(2)
sections 27(H)(1) and (2) of the VPC Act must be read
conjunctively.
The Licensor will not cancel this Licence under section 27H(2) of the VPC
Act unless the Licensee has requested the cancellation under section
27H(1) of the VPC Act.
Termination
Subject to clauses 3.2 and 3.3, this Licence will terminate on 31 December 2010.
4
5
Licence Fee
(a)
The Licensee must pay the Licence Fee to the Licensor (or to another
person if the Licensor directs in writing) without demand and without
deduction or set-off on the Completion Date.
(b)
The Licence Fee becomes the absolute property of the Licensor and will
not in any circumstances be refunded.
Nature of Licensee’s rights
This Licence does not:
(a)
create any tenancy;
(b)
give the Licensee any leasehold interest in the Licensed Land; or
(c)
create any of the rights referred to in section 42 of the Transfer of Land Act
1958 (Vic).
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Asset Sale Agreement
6
Licensor’s entry
6.1
Licensor’s right of entry
The Licensee shall not prevent, attempt to prevent or in any way hinder, obstruct
or permit the hindrance or obstruction of the Licensor or the Licensor’s employees
or agents at any time from entering and remaining on the Licensed Land either
with or without motor vehicles or other equipment for the following purposes:
(a)
lawfully retaking or attempting to retake possession of the Licensed Land;
or
(b)
monitoring compliance by the Licensee with the VPC Act,
and the Licensor will not enter the Licensed Land for any other purpose.
6.2
Non interference
The Licensor will not unreasonably interfere with the Licensee’s use of the
Licensed Land in accordance with:
7
(a)
the terms and conditions of this Licence; and
(b)
the provisions of the VPC Act.
Public liability insurance
The Licensee shall, for the term of this Licence, maintain a public liability
insurance policy over the Licensed Land with a reputable insurer which:
8
(a)
notes the Licensor and the Crown as co-insured under the policy;
(b)
provides cover of no less than thirty (30) million dollars or such higher
amount as may be nominated by the Licensor acting reasonably for any
single occurrence during the policy period; and
(c)
includes a cross liability clause in which the insurer waives all rights of
subrogation against any of the persons comprising the insured as if a
separate policy of insurance had been issued to each of them.
Indemnity by the licensee
Subject to clause 14.4 of the Asset Sale Agreement, the Licensee shall indemnify
the Licensor and the Crown in respect of any claim or liability for property
damage or injury or death of any person which arises directly or indirectly out of
negligence, any other tortious act, breach of contract, or breach of a statutory duty
by the Licensee, its employees and agents including, but not limited to, any claim
or liability arising from the pollution or contamination of land or water, and any
costs, charges and expenses incurred in connection therewith.
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Asset Sale Agreement
9
Assignment
9.1
Licensee’s right to assign
The Licensee must not assign this Licence, in whole or in part, except in
accordance with sections 27C, 27N, 27O of the VPC Act and clause 9.2 of
this Licence.
9.2
9.3
Forestry Services Agreements
(a)
The Licensee acknowledges that it has rights and obligations pursuant to
the Forestry Services Agreements.
(b)
If an assignment of the Licensee’s right, title and interest in this Licence to
an assignee (the “Assignee”) would mean that the Licensee would be
unable to perform its obligations under a Forestry Services Agreement, the
Licensee must:
(1)
obtain the prior written approval of the Licensor to the assignment;
and
(2)
not assign its right, title and interest in this Licence unless it also
assigns its rights and obligations under the relevant Forestry
Services Agreement to the Assignee.
(c)
The Licensor must not withhold its approval to an assignment by the
Licensee under clause 9.2(b), unless, within 30 days of any request for
approval, in the opinion of an independent Chartered Accountant,
nominated by the President of the Institute of Chartered Accountants
(Victoria), the proposed assignee is insolvent or unlikely to be capable of
performing the other party’s obligations under the Forestry Services
Agreements.
(d)
For the avoidance of doubt, the Licensor acknowledges and agrees that the
Licensee may assign its right, title and interest in that part of the Licensed
Land which does not pertain to the performance of its obligations under a
Forestry Services Agreement, without the prior written approval of the
Licensor.
Licensor’s right to assign
The Licensor may, in its absolute discretion, assign its rights (and, if applicable,
its obligations) under this Licence to any Governmental Agency in such a way as
preserves the Licensee’s interest.
10
Mortgages or charges of the Licence
The Licensee may, without the need to obtain the consent of the Licensor,
mortgage or charge the whole of its interest under this Licence and it shall not be
necessary for any notice of any such mortgage or charge to be given by the
Licensee to the Licensor, but any sale or assignment or transfer upon default of
such mortgage or charge shall be deemed to be an assignment of the Licence and
shall require compliance with sections 27C, 27N and 27O of the VPC Act.
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Asset Sale Agreement
11
Existing Rights
Subject to clause 12, the Licensee acknowledges that it takes this Licence subject
to Existing Rights over the Licensed Land. The Licensee shall, for the term of the
Licence, observe, perform and fulfil the terms, conditions, rights and obligations
of every such Existing Right.
12
Native title compensation
The Licensor agrees that, notwithstanding clause 8 and 11:
13
(a)
the Licensee has no liability for any compensation which may be payable
to any party in relation to the passage of the VPC Act and Land Titles
Validation Act 1993 (Vic); and
(b)
the liability referred to in clause 12(a) remains the responsibility of the
State.
Final Harvest
Upon the final harvest of the Forest Produce on the Licensed Land, the Licensed
Land from which the Forest Produce has been harvested must be treated to a
sufficient extent to enable the successful seeding and re-establishment of native
species indigenous to the general locality.
14
Notices
14.1 How notices may be given
A notice, request, demand, consent or approval under this Licence:
(a)
must be in writing;
(b)
may be signed for the party giving it by the party’s authorised officer or
solicitor;
(c)
may be delivered personally to the person to whom it is addressed, or left
at or sent by prepaid post to the person’s address, or faxed to the person’s
fax number, given below:
(1)
if to the Licensor
Address:
Level 5, 1 Treasury Place
Melbourne VIC 3000
Attention:
(2)
Freehill Hollingdale & Page MELCC
The Chairman
if to the Licensee
Address:
Level 18, Grosvenor Place, 225 George Street
Sydney NSW 2000
Fax:
02 9258 1124
page 7
Asset Sale Agreement
Attention:
Bruce McKnight
14.2 When notice taken as given
A notice is taken as given by the sender and received by the intended recipient:
(a)
if posted, 3 Business Days after posting; and
(b)
if faxed, on completion of the transmission,
but if delivery or receipt is on a day which is not a Business Day or is after 5.00pm
at the place of delivery or receipt, it is taken as given at 9.00am on the next
Business Day.
14.3 Change of address or fax number
A party may change its address or fax number for notices by giving written notice
to the other party.
15
General
15.1 Costs and expenses
(a)
Each party must pay its own costs and expenses for the negotiation and
preparation of this Licence.
(b)
The Licensee must pay any stamp duty or other taxes concerning the
Licence.
(c)
The Licensee will pay all costs, charges and expenses which the Licensor
or the Crown may reasonably incur (including, without limitation legal
costs on a full indemnity basis) in consequence of or in connection with
any breach or default by the Licensee in the performance or observance of
any of the covenants and conditions of this Licence.
(d)
The Licensee will pay all of the costs of any accountant appointed under
clause 9.2(c).
15.2 Governing law and jurisdiction
(a)
This Licence is governed by the law of Victoria
(b)
Each party irrevocably submits to the jurisdiction of the courts of Victoria
and courts hearing appeals from them.
15.3 Waiver
(a)
A party waives a right under this Licence only if it does so in writing.
(b)
A party does not waive a right simply because it:
(c)
(1)
fails to exercise the right;
(2)
delays exercising the right; or
(3)
only exercises part of the right.
A waiver of one breach of a term of this Licence does not operate as a
waiver of another breach of the same term or any other term.
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Asset Sale Agreement
15.4 Further action
(a)
Each party must promptly sign any document and do anything else that is
necessary or reasonably requested by the other party to give full effect to
this Licence.
(b)
If there is land vested in the Licensor pursuant to sections 8, 8A, 8E and
8H of the VPC Act which was intended by the parties to form part of the
Licensed Land, the Licensor upon becoming aware of this, shall use its
best endeavours to grant a new licence pursuant to section 27B of the VPC
Act to the Licensee in respect of that land.
15.5 Variation of Licence
A variation of this Licence must be in writing and signed by each party to the
Licence or by persons authorised to sign for them.
15.6 Unenforceable provision
If a provision in this Licence is wholly or partly invalid or unenforceable in any
jurisdiction, that provision or part must, to that extent and in that jurisdiction, be
treated as deleted from this Licence. This does not affect the validity or
enforceability of the remaining provisions or of the deleted provision in other
jurisdictions.
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Asset Sale Agreement
Schedule 1 - Licensed Land
(List of certified plans lodged at the Central Plan Office under the Survey Co-ordination Act 1958)
Plantation
Crown
Allotment
Section
Parish
Certified Plan
Delatite
99L1, 99M1,
101J, 108M2,
108M4, 108M5,
108M8, 108M11,
108M13, 108N,
108P, 108Q
Howqua West
CP117472-A
Goughs Bay
99J
Howqua West
CP117473
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Asset Sale Agreement
Executed as an agreement:
The common seal of
Victorian Plantations Corporation
is affixed to this document:
_______________________________
Secretary/Director
_________________________________
Director
_______________________________
Name (please print)
_________________________________
Name (please print)
The common seal of
Hancock Victorian
Plantations Pty Ltd
is affixed to this document:
_______________________________
Secretary/Director
_________________________________
Director
_______________________________
Name (please print)
_________________________________
Name (please print)
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Asset Sale Agreement
Annexure F - Forestry Services Agreements
Freehills MELC3
page 1
Asset Sale Agreement
Forestry Services Agreement
State
Victorian Plantations Corporation
and
Hancock Victorian Plantations Pty Ltd
101 Collins Street Melbourne Victoria 3000 Australia
GPO Box 128A Melbourne 3001
Telephone (03) 9288 1234 Facsimile (03) 9288 1567 DX 240 Melbourne
Reference: RWN:AMR:SJR
MELBOURNE
SYDNEY
PERTH
CANBERRA
BRISBANE
SINGAPORE
CORRESPONDENT OFFICE IN JAKARTA
HANOI
HO CHI MINH CITY
Lia bilit y is limit e d by t he S o lic it o r s S c he me u nd e r t he P r o fe ssio na l S t a nd a r d s Ac t 1 9 9 4 ( N S W)
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Table of contents
Clause
Page
1 Definitions and Interpretation
1.1 Definitions
1.2 Interpretation
2 Term
2.1 Commencement
2.2 Termination
2.3 Termination not to affect rights
3 Obligations of the Purchaser
3.1 Performance of the Services
3.2 Ratification of the Forestry Agreements
3.3 Responsibility for loss
3.4 Reporting
3.5 Litigation
3.6 Land pertaining to the Forestry Agreement
4 Obligations of VPC
4.1 Directions to the Customers
4.2 No interference with Services
4.3 No amendment of Forestry Agreement
4.4 Termination of the Forestry Agreement
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
34
5 State to consider representations
34
6 Obligations to accept assignment of the Forestry Agreement
34
7 Representations and Warranties
34
7.1 Representations and Warranties
7.2 Continuing representations and warranties
7.3 Separate representations and warranties
8 Miscellaneous
8.1 Governing Law
8.2 Assignment
8.3 Notices
8.4 Relationship of the Parties
8.5 Variation
8.6 Counterparts
8.7 Waiver
8.8 Indemnities
8.9 Further assurances
8.10 Entire agreement
8.11 To the extent not excluded by law
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34
34
34
34
34
34
34
34
34
34
34
34
34
34
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Asset Sale Agreement
8.12 Severability
8.13 Payment
8.14 Interest
8.15 Costs
Schedule 1 - Forestry Agreements
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34
34
34
34
34
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Asset Sale Agreement
This Forestry Services Agreement
is made on 17 November 1998 between the following parties:
1.
The Honourable Alan Robert Stockdale
in his capacity as Treasurer of the State of Victoria for and on behalf of the
Crown in the right of the State
(State)
2.
Victorian Plantations Corporation
of 517 Flinders Lane, Melbourne, Victoria
(VPC)
3.
Hancock Victorian Plantations Pty Ltd
ACN 084 801 132
of Level 18 Grosvenor Place, 225 George Street, Sydney, NSW, 2000
(Purchaser)
A.
Pursuant to the Forestry Agreement, VPC is obliged to make available a
supply of softwood sawlogs and round logs to the Customer in accordance
with the terms of that agreement.
B.
VPC and the Purchaser have entered into the Asset Sale Agreement which
includes the granting of a Plantation Licence under the Victorian
Plantations Corporation Act 1993 (Vic) to the Purchaser in respect of the
area of land the subject of the Forestry Agreement.
C.
VPC desires to subcontract the performance of its obligations pursuant to
the Forestry Agreement and the Purchaser desires to undertake those
obligations in accordance with this Agreement.
Recitals
The parties agree as follows:
1
Definitions and Interpretation
1.1
Definitions
In this Agreement unless the contrary intention appears:
Asset Sale Agreement means the Asset Sale Agreement dated 27 October 1998
between, amongst others, The Honourable Alan Robert Stockdale in his capacity
as Treasurer of the State of Victoria, VPC and the Purchaser.
Base Rate means, in respect of a given date, the rate percent per annum which is
described as the “Average Mid Rate” and appears on the page entitled “BBSW”
on the Reuters Monitor System at or about 10.00 am (Melbourne time) on that
date for a bank accepted bill of exchange having a tenor of 30 days.
Customer means the party to the Forestry Agreement specified as such in
Schedule 1.
Effective Date means the Completion Date as that term is defined in the Asset
Sale Agreement.
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Asset Sale Agreement
Forestry Act means the Act specified as such in Schedule 1.
Forestry Agreement means the agreement specified as such in Schedule 1.
Plantation Licence means the licence granted pursuant to section 27B of the
Victorian Plantations Corporation Act 1993 (Vic) to the Purchaser in respect of
the area of land the subject of the Forestry Agreement.
Loss means any and all losses, claims, demands, injuries, actions, liabilities,
damages, expenses, diminutions in value or deficiencies of any kind or character
(whether consequential or otherwise or whether or not known or asserted on or
before the date of this Agreement) including, without limitation, all interest and
other amounts payable to third parties, all liabilities on account of taxes and all
legal (on a full indemnity basis) and other expenses reasonably incurred in
connection with investigating or defending any claims or actions, whether or not
resulting in any liability and all amounts paid in settlement of claims or actions.
Ministers means the Ministers listed in Schedule 1 in respect of the Forestry
Agreement.
Services means the services, obligations, actions, decisions and determinations
required of VPC, the State or the Ministers pursuant to the Forestry Agreement,
including, but without limitation:
(a)
preparing a plan of utilisation;
(b)
`making available a supply of softwood sawlogs;
(c)
felling and removing softwood sawlogs;
(d)
calculating or determining any and all charges which VPC is required to
calculate or determine in accordance with the Forestry Agreement;
(e)
paying any and all charges;
(f)
such other additional services, obligations, actions decisions or
determinations in relation to the Forestry Agreement as are necessary or
desirable to be performed in provision of those services, obligations,
actions, decisions or determinations or as are agreed between VPC and the
Purchaser from time to time.
State means the State of Victoria.
1.2
Interpretation
In this Agreement unless the contrary intention appears, a reference to:
(a)
a reference to a statute, ordinance, code or other law includes regulations
and other instruments under, and consolidations, amendments, reenactments, extensions or replacements of that statute, ordinance, code or
law;
(b)
a reference to a thing (including, without limitation, an amount) is a
reference to the whole and each part of it;
(c)
the singular includes the plural and vice versa;
(d)
the words “person” and “entity” each include a natural person, firm, body
corporate, partnership (whether limited or otherwise), joint venture, trust,
an unincorporated association and an Authority;
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Asset Sale Agreement
2
(e)
a reference to a person includes a reference to the person’s executors,
administrators, successors, substitutes (including, but not limited to,
persons taking by novation) and permitted assigns;
(f)
a reference to one gender includes all genders;
(g)
where a word or phrase is specifically defined in this Agreement, other
parts of speech and grammatical forms of that word or phrase have
corresponding meaning;
(h)
a reference to a document includes all amendments or supplements to, or
replacements or novations of, that document;
(i)
a reference to a party to a document includes that party's successors and
permitted assigns;
(j)
no provision of this Agreement will be construed adversely to a party
solely on the ground that the party was responsible for the preparation of
this Agreement or that provision; and
(k)
headings are inserted for convenience and do not affect the interpretation
of this Agreement.
Term
2.1
Commencement
This Agreement takes effect upon the Effective Date.
2.2
Termination
This Agreement shall terminate on the earlier of:
2.3
(a)
termination of the Forestry Agreement;
(b)
assignment of the Forestry Agreement to the Purchaser in accordance with
clause 6; and
(c)
the date of completion of all of the obligations of VPC, the State and the
Ministers under the Forestry Agreement.
Termination not to affect rights
Termination of this Agreement does not affect any obligations or rights of the
parties pursuant to this Agreement which have arisen prior to its termination.
3
Obligations of the Purchaser
3.1
Performance of the Services
(a)
The Purchaser shall perform the Services.
(b)
Without in any way limiting the scope of clause 3.1(a), the parties agree
that in providing the Services the Purchaser will:
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Asset Sale Agreement
3.2
(1)
comply with all relevant provisions of the Forestry Agreement as if
the Purchaser was named as a party to that agreement in the place
of VPC;
(2)
be responsible for the risks and costs of performing the obligations
of VPC under the Forestry Agreement; and
(3)
do all things reasonably requested by VPC to provide VPC with all
assistance necessary or considered by VPC to be desirable to enable
VPC, the State and the Ministers to carry out their obligations
under the Forestry Agreements.
Ratification of the Forestry Agreements
(a)
In performing its obligations under this Agreement, the Purchaser
acknowledges that the Forestry Agreement is ratified by the Forestry Act
and has effect as if the provisions of the Forestry Agreement had been
expressly included in the Forestry Act.
(b)
The Purchaser acknowledges that:
(1)
the Services include any services, obligations, actions, decisions or
determinations; and
(2)
in performing the Services, the Purchaser must comply with any
obligations, principles, considerations or legal requirements
(whether arising by virtue of contract, administrative, constitutional
or equity law or otherwise)
which arise as a result of the subject matter of the acknowledgment in
clause 3.2(a).
3.3
3.4
Responsibility for loss
(a)
The Purchaser releases VPC, the State and the Ministers from and
indemnifies them against any Loss or liability brought against or suffered,
incurred or payable by VPC, the State or the Ministers arising (whether
under contract, statute, tort or otherwise) directly or indirectly out of or in
any way attributable to or in connection with the performance of the
Services, this Agreement (including clause 3.5) or the Forestry Agreement
or any activities related thereto, on or after the date of this Agreement.
(b)
The Purchaser releases VPC, the State and the Ministers from and is
responsible for the risk and cost of any Loss or liability brought against or
suffered, incurred or payable by VPC, the State or the Ministers arising
(whether under contract, statute, tort or otherwise) directly or indirectly out
of or in any way attributable to or in connection with the performance of
the Services, this Agreement (including clause 3.5) or the Forestry
Agreement or any activities related thereto, before the date of this
Agreement.
Reporting
The Purchaser shall report to a nominated officer or agent of VPC (“Contract
Officer”) in respect of all matters relating to this Agreement. The Purchasers shall
provide to the Contract Officer upon request, written reports on the performance
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Asset Sale Agreement
by the Purchaser of its obligations under this Agreement and provide such other
information and forecasts relating to the Services as the Contract Officer may
request and shall keep full business and accounting records relating to its
performance and allow the Contract Officer to inspect those records (and to make
copies) at all reasonable times.
3.5
Litigation
(a)
(b)
3.6
The Purchaser agrees that it will;
(1)
not object to be joined as a party to any legal action, claim, dispute
or proceedings with the Customer in respect of the Forestry
Agreement or any Loss or liability for which the Purchaser is
responsible under clause 3.3; and
(2)
if requested by VPC, use its best endeavours to defend any action,
claim, dispute or proceeding brought against VPC arising directly
or indirectly out of or in any way attributable to the performance of
the Services or the Forestry Agreement, including retaining and
instructing solicitors or other advisers.
If the Purchaser receives a request pursuant to clause 3.5(a)(2), VPC
authorises the Purchaser to give instructions to such solicitors or advisers
for and on behalf of VPC at the Purchaser's discretion, for the purposes
only of clause 3.5(a)(2), without the need to obtain any further
authorisation in any particular case from VPC but with the obligation upon
the Purchaser to keep the VPC informed. VPC appoints the Purchaser as
VPC's attorney with full licence, power and authority for the purposes only
of clause 3.5(a)(2), including without limitation to take all such steps and
proceedings and to do and execute all such acts, deeds and things as are
necessary or as seem to the Purchaser to be expedient for the purpose of
this clause 3.5, to commence, carry on and prosecute, settle and
compromise all actions, suits and proceedings at law or in equity referred
to in this clause 3.5 and generally to do, perform and execute all such
further and other acts, deeds, matters and things which become necessary
or regarded by the Purchaser in its discretion as desirable for the purposes
of this clause 3.5.
Land pertaining to the Forestry Agreement
The Purchaser agrees not to dispose of any right, title or interest in:
(a)
the Plantation Licence;
(b)
the land to which the Plantation Licence pertains; or
(c)
the land to which the Forestry Agreement pertains,
without also assigning its rights and obligations under this Agreement to a party
which acquires the Purchaser’s right title and interest in the Plantation Licence
and the land to the extent that the disposal would affect the performance by the
Purchaser of its obligations under this Agreement, on terms reasonably acceptable
to VPC.
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4
Obligations of VPC
4.1
Directions to the Customers
Subject to the Purchaser’s compliance with clause 3, VPC shall direct the
Customers to:
(a)
make any payments; and
(b)
send copies of any notices
pursuant to the Forestry Agreement to the Purchaser.
4.2
No interference with Services
Subject to the Purchaser’s compliance with clause 3, VPC shall not take any
action which would interfere with the Purchaser’s performance of its obligations
under that clause, unless provided for by this Agreement.
4.3
4.4
No amendment of Forestry Agreement
(a)
Subject to any obligation contained in the Forestry Agreement, VPC will
not waive any right or amend, or extend the Forestry Agreement without
the prior consent of the Purchaser.
(b)
The parties acknowledge that nothing in this Agreement limits or restricts
any rights of VPC, the Ministers or the State to terminate the Forestry
Agreement.
Termination of the Forestry Agreement
If any consent or approval is required by a Minister for the termination of the
Forestry Agreement, VPC shall use its best endeavours to procure the granting of
that consent provided that any conditions or procedures with respect to that
termination which are contained in the Forestry Agreement have been complied
with.
5
State to consider representations
The State will consider, in good faith, but is nevertheless not bound to accept,
support or advance any proposal by the Purchaser (which has been agreed to by
the Customer) to replace the Forestry Agreement with a new contract between the
Purchaser and the Customer, and the State acknowledges that such a proposal may
involve the introduction into Parliament of a Bill which would amend or repeal
the Forestry Act and Forestry Agreement.
6
Obligations to accept assignment of the Forestry Agreement
In the event that the Customer, VPC and the State agree to allow VPC to assign its
rights and obligations under, or to novate, the Forestry Agreement to the
Purchaser, whether or not such transaction includes a full and unconditional
discharge and release of VPC, the State and the Ministers from the Customer in
respect of the Forestry Agreement, the Purchaser unconditionally and irrevocably
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Asset Sale Agreement
agrees to accept any such assignment or novation on terms which may include a
full release and discharge of VPC, the State and the Ministers from all obligations
and liabilities (including those arising before the date of assignment or novation)
in respect of the Forestry Agreement.
7
Representations and Warranties
7.1
Representations and Warranties
The Purchaser hereby represents and warrants that:
7.2
(a)
it has the power to execute this Agreement and to perform its obligations
under this Agreement and has taken all necessary action (including
obtaining all shareholder approvals and authorisations) to authorise such
execution and performance;
(b)
this Agreement constitutes a legally valid and binding obligation of the
Purchaser enforceable in accordance with its terms;
(c)
the execution and performance of this Agreement will not violate any
provision of:
(1)
any law, regulation, order, rule or decree of any governmental
agency or authority of the Commonwealth of Australia or any state
or territory or, where the Purchaser is incorporated outside
Australia, of the place of its incorporation, or any recognised stock
exchange on which its shares or the shares of any related body
corporate are listed;
(2)
the memorandum or articles of association (or equivalent
constituent documentation) of the Purchaser; and
(3)
any security agreement, deed, contract, undertaking or other
instrument to which the Purchaser is a party or which is binding on
it and does not and will not result in the creation or imposition of
any security over any of its assets pursuant to the provision of any
such security agreement, deed, contract, undertaking or other
instrument;
Continuing representations and warranties
The representations and warranties given in clause 7.1 are continuing
representations and warranties, and shall not merge on, and shall remain in full
force and effect after, the date of this Agreement.
7.3
Separate representations and warranties
Each representation and warranty given in clause 7.1 shall be treated as a separate
representation and warranty in respect of each statement made and the
interpretation of any statement made is not restricted by any reference to or
inference from any other statement.
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8
Miscellaneous
8.1
8.2
Governing Law
(a)
This Agreement is governed by the laws of the State of Victoria.
(b)
Each of the parties irrevocably submits to the exclusive jurisdiction of the
courts of the State of Victoria.
Assignment
Subject to clauses 3.6 and 6 of this Agreement, this Agreement and each covenant,
term and condition hereof inures to the benefit of and is binding upon the parties
and their respective successors and permitted assigns, provided that:
8.3
(a)
the Purchaser must not assign all or any of its rights or obligations under
this Agreement without the prior written approval of VPC;
(b)
the Purchaser may without the necessity of obtaining such approval assign
its rights (and if applicable, its obligations) under this Agreement to a
corporation to which it is related within the meaning of the Corporations
Law but will not without the consent of VPC be released from any
obligations under this Agreement (such consent not to be unreasonably
withheld);
(c)
the Purchaser may without the necessity of obtaining approval under clause
8.2(a) create a charge over its rights under this Agreement for the benefit
of its financiers; or
(d)
a party must approve an assignment by the other party, if the other party
and the proposed assignee execute an assignment, in a form acceptable to
the first party, which requires the proposed assignee to perform all the
party’s obligations under this Agreement, unless, within 30 days of a
written request for approval, an independent chartered accountant
nominated by the President of the Institute of Chartered Accountants
(Victoria), determines that the proposed assignee is insolvent and unlikely
to be capable of performing the other party’s obligations under this
Agreement.
Notices
Notices given by one party to another under this Agreement will be in writing and
will be deemed served on actual receipt or:
(a)
at the time of transmission if given by facsimile; or
(b)
two clear days after posting by ordinary pre-paid post,
whichever is the earlier and such notices shall be addressed to each party at its
address or facsimile number as stated below:
VPC:
Level 5, 1 Treasury Place, Melbourne, VIC, 3000.
Attention:
The Administrator.
The Purchaser:
Level 18, Grosvenor Place, 225 George Street, Sydney, NSW, 2000.
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Asset Sale Agreement
Attention:
8.4
8.5
Bruce McKnight.
Relationship of the Parties
(a)
The relationship between VPC and the Purchaser is that of an independent
contractor. Nothing in this Agreement is intended to or shall establish any
other relationship between the Purchaser and VPC, including that of
principal and agent.
(b)
None of the provisions of this Agreement (other than clause 6, to the extent
provided for in that clause) shall operate so as to constitute an assignment
or disposition of the Forestry Agreements.
Variation
A variation of any term of this Agreement must be in writing and signed by the
parties.
8.6
Counterparts
This Agreement may consist of a number of counterparts and the counterparts
taken together constitute one and the same instrument.
8.7
8.8
Waiver
(a)
Waiver of any right, discretion or remedy arising pursuant to this
Agreement must be in writing and signed by the party granting the waiver.
(b)
A failure or delay in exercise, or partial exercise, of a right, discretion or
remedy arising from a breach of this Agreement does not result in a waiver
of that right, discretion or remedy.
(c)
A party is not entitled to rely on a delay in the exercise or non-exercise of a
right, discretion or remedy arising from a breach of this Agreement or on a
default under this Agreement as constituting a waiver of that right,
discretion or remedy.
(d)
A party may not rely on any conduct of another party as a defence to
exercise of a right, discretion or remedy by that other party.
(e)
This clause may not itself be waived except by writing.
Indemnities
The indemnities in this Agreement survive termination of this Agreement.
8.9
Further assurances
Each party must do all things and execute all further documents necessary to give
full effect to this Agreement.
8.10 Entire agreement
(a)
This Agreement supersedes all previous agreements in respect of its
subject matter and embodies the entire agreement between the parties.
(b)
Each party acknowledges that, except as expressly stated in this
Agreement, that party has not relied on any representation, warranty or
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Asset Sale Agreement
undertaking of any kind made by or on behalf of the other party in relation
to the subject matter of this Agreement.
8.11 To the extent not excluded by law
The rights, duties and remedies granted or imposed under the provisions of this
Agreement operate to the extent not excluded by law.
8.12 Severability
If any provision of this Agreement offends any law applicable to it and is as a
consequence illegal, invalid or unenforceable then:
(a)
where the offending provision can be read down so as to give it a valid and
enforceable operation of a partial nature it must be read down to the extent
necessary to achieve that result; and
(b)
in any other case the offending provision must be severed from this
Agreement in which event the remaining provisions of the agreement
operate as if the severed provision had not been included.
However the parties will negotiate in good faith to replace the severed provision
with one that is not illegal or unenforceable and provides as near as possible the
same effect as the severed provision.
8.13 Payment
Any amount which is payable by the Purchaser to VPC under this Agreement is
required to be paid on demand or such other time nominated by VPC.
8.14 Interest
(a)
If any money which one party owes to the other under this Agreement is
overdue, that party must pay to the other party interest calculated in
accordance with clause 8.14(b) whether or not the party to whom any
money is owing has made a formal demand for the money.
(b)
The interest payable is to:
(c)
(1)
be calculated on the overdue money from the due date of payment
to the date when payment is received in full;
(2)
be capitalised on the last day of each month;
(3)
accrue daily at a rate equivalent to the aggregate of 2% per annum
and the Base Rate applicable on the last business day of the month
preceding that day.
Nothing in this clause limits any other right, power or remedy which a
party may have in respect of money which it is owed.
8.15 Costs
The Purchaser will pay all of the costs of any accountant appointed under
clause 8.2(d).
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Asset Sale Agreement
EXECUTED by the parties as an agreement.
SIGNED by THE HONOURABLE
ALAN ROBERT STOCKDALE in
the presence of:
________________________________
_______________________________
Witness
Name (printed):
THE OFFICIAL SEAL
of VICTORIAN PLANTATIONS CORPORATION
was affixed to this
document in the presence
of:
_______________________________
Secretary/Director
_______________________________
Name (please print)
_________________________________
Director
_________________________________
Name (please print)
THE COMMON SEAL
of HANCOCK VICTORIAN
PLANTATIONS PTY LTD
was affixed to this
document in the presence of:
_______________________________
Secretary/Director
_______________________________
Name (please print)
Freehill Hollingdale & Page MELCC
_________________________________
Director
_________________________________
Name (please print)
page 14
Asset Sale Agreement
Schedule 1 - Forestry Agreements
Forestry Agreement and Act
Forests (Australian Newsprint Mills Limited) Act 1980 (Vic)
(including letters dated 20 January 1995, 16 June 1998 and 18
June 1998, deed of settlement dated 26 June 1992, deed of
settlement dated 20 December 1991 and supplementary
agreement dated 26 June 1992).
Customer
Australian Newsprint Mills Limited ACN 009 477 132
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Asset Sale Agreement
Forestry Services Agreement
State
Victorian Plantations Corporation
and
Hancock Victorian Plantations Pty Ltd
101 Collins Street Melbourne Victoria 3000 Australia
GPO Box 128A Melbourne 3001
Telephone (03) 9288 1234 Facsimile (03) 9288 1567 DX 240 Melbourne
Reference: RWN:AMR:SJR
MELBOURNE
SYDNEY
PERTH
CANBERRA
BRISBANE
SINGAPORE
CORRESPONDENT OFFICE IN JAKARTA
HANOI
HO CHI MINH CITY
Lia bilit y is limit e d by t he S o lic it o r s S c he me u nd e r t he P r o fe ssio na l S t a nd a r d s Ac t 1 9 9 4 ( N S W)
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Asset Sale Agreement
Table of contents
Clause
Page
1 Definitions and Interpretation
1.1 Definitions
1.2 Interpretation
2 Term
2.1 Commencement
2.2 Termination
2.3 Termination not to affect rights
3 Obligations of the Purchaser
3.1 Performance of the Services
3.2 Ratification of the Forestry Agreements
3.3 Responsibility for loss
3.4 Reporting
3.5 Litigation
3.6 Land pertaining to the Forestry Agreement
4 Obligations of VPC
4.1 Directions to the Customers
4.2 No interference with Services
4.3 No amendment of Forestry Agreement
4.4 Termination of the Forestry Agreement
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5 State to consider representations
34
6 Obligations to accept assignment of the Forestry Agreement
34
7 Representations and Warranties
34
7.1 Representations and Warranties
7.2 Continuing representations and warranties
7.3 Separate representations and warranties
8 Miscellaneous
8.1 Governing Law
8.2 Assignment
8.3 Notices
8.4 Relationship of the Parties
8.5 Variation
8.6 Counterparts
8.7 Waiver
8.8 Indemnities
8.9 Further assurances
8.10 Entire agreement
8.11 To the extent not excluded by law
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Asset Sale Agreement
8.12 Severability
8.13 Payment
8.14 Interest
8.15 Costs
Schedule 1 - Forestry Agreements
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Asset Sale Agreement
This Forestry Services Agreement
is made on 17 November 1998 between the following parties:
1.
The Honourable Alan Robert Stockdale
in his capacity as Treasurer of the State of Victoria for and on behalf of the
Crown in the right of the State
(State)
2.
Victorian Plantations Corporation
of 517 Flinders Lane, Melbourne, Victoria
(VPC)
3.
Hancock Victorian Plantations Pty Ltd
ACN 084 801 132
of Level 18 Grosvenor Place, 225 George Street, Sydney, NSW, 2000
(Purchaser)
A.
Pursuant to the Forestry Agreement, VPC is obliged to make available a
supply of softwood sawlogs and round logs to the Customer in accordance
with the terms of that agreement.
B.
VPC and the Purchaser have entered into the Asset Sale Agreement which
includes the granting of a Plantation Licence under the Victorian
Plantations Corporation Act 1993 (Vic) to the Purchaser in respect of the
area of land the subject of the Forestry Agreement.
C.
VPC desires to subcontract the performance of its obligations pursuant to
the Forestry Agreement and the Purchaser desires to undertake those
obligations in accordance with this Agreement.
Recitals
The parties agree as follows:
1
Definitions and Interpretation
1.1
Definitions
In this Agreement unless the contrary intention appears:
Asset Sale Agreement means the Asset Sale Agreement dated 27 October 1998
between, amongst others, The Honourable Alan Robert Stockdale in his capacity
as Treasurer of the State of Victoria, VPC and the Purchaser.
Base Rate means, in respect of a given date, the rate percent per annum which is
described as the “Average Mid Rate” and appears on the page entitled “BBSW”
on the Reuters Monitor System at or about 10.00 am (Melbourne time) on that
date for a bank accepted bill of exchange having a tenor of 30 days.
Customer means the party to the Forestry Agreement specified as such in
Schedule 1.
Effective Date means the Completion Date as that term is defined in the Asset
Sale Agreement.
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Asset Sale Agreement
Forestry Act means the Act specified as such in Schedule 1.
Forestry Agreement means the agreement specified as such in Schedule 1.
Plantation Licence means the licence granted pursuant to section 27B of the
Victorian Plantations Corporation Act 1993 (Vic) to the Purchaser in respect of
the area of land the subject of the Forestry Agreement.
Loss means any and all losses, claims, demands, injuries, actions, liabilities,
damages, expenses, diminutions in value or deficiencies of any kind or character
(whether consequential or otherwise or whether or not known or asserted on or
before the date of this Agreement) including, without limitation, all interest and
other amounts payable to third parties, all liabilities on account of taxes and all
legal (on a full indemnity basis) and other expenses reasonably incurred in
connection with investigating or defending any claims or actions, whether or not
resulting in any liability and all amounts paid in settlement of claims or actions.
Ministers means the Ministers listed in Schedule 1 in respect of the Forestry
Agreement.
Services means the services, obligations, actions, decisions and determinations
required of VPC, the State or the Ministers pursuant to the Forestry Agreement,
including, but without limitation:
(a)
preparing a plan of utilisation;
(b)
making available a supply of softwood sawlogs;
(c)
felling and removing softwood sawlogs;
(d)
calculating or determining any and all charges which VPC is required to
calculate or determine in accordance with the Forestry Agreement;
(e)
paying any and all charges;
(f)
such other additional services, obligations, actions decisions or
determinations in relation to the Forestry Agreement as are necessary or
desirable to be performed in provision of those services, obligations,
actions, decisions or determinations or as are agreed between VPC and the
Purchaser from time to time.
State means the State of Victoria.
1.2
Interpretation
In this Agreement unless the contrary intention appears, a reference to:
(a)
a reference to a statute, ordinance, code or other law includes regulations
and other instruments under, and consolidations, amendments, reenactments, extensions or replacements of that statute, ordinance, code or
law;
(b)
a reference to a thing (including, without limitation, an amount) is a
reference to the whole and each part of it;
(c)
the singular includes the plural and vice versa;
(d)
the words “person” and “entity” each include a natural person, firm, body
corporate, partnership (whether limited or otherwise), joint venture, trust,
an unincorporated association and an Authority;
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Asset Sale Agreement
2
(e)
a reference to a person includes a reference to the person’s executors,
administrators, successors, substitutes (including, but not limited to,
persons taking by novation) and permitted assigns;
(f)
a reference to one gender includes all genders;
(g)
where a word or phrase is specifically defined in this Agreement, other
parts of speech and grammatical forms of that word or phrase have
corresponding meaning;
(h)
a reference to a document includes all amendments or supplements to, or
replacements or novations of, that document;
(i)
a reference to a party to a document includes that party's successors and
permitted assigns;
(j)
no provision of this Agreement will be construed adversely to a party
solely on the ground that the party was responsible for the preparation of
this Agreement or that provision; and
(k)
headings are inserted for convenience and do not affect the interpretation
of this Agreement.
Term
2.1
Commencement
This Agreement takes effect upon the Effective Date.
2.2
Termination
This Agreement shall terminate on the earlier of:
2.3
(a)
termination of the Forestry Agreement;
(b)
assignment of the Forestry Agreement to the Purchaser in accordance with
clause 6; and
(c)
the date of completion of all of the obligations of VPC, the State and the
Ministers under the Forestry Agreement.
Termination not to affect rights
Termination of this Agreement does not affect any obligations or rights of the
parties pursuant to this Agreement which have arisen prior to its termination.
3
Obligations of the Purchaser
3.1
Performance of the Services
(a)
The Purchaser shall perform the Services.
(b)
Without in any way limiting the scope of clause 3.1(a), the parties agree
that in providing the Services the Purchaser will:
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Asset Sale Agreement
3.2
(1)
comply with all relevant provisions of the Forestry Agreement as if
the Purchaser was named as a party to that agreement in the place
of VPC;
(2)
be responsible for the risks and costs of performing the obligations
of VPC under the Forestry Agreement; and
(3)
do all things reasonably requested by VPC to provide VPC with all
assistance necessary or considered by VPC to be desirable to enable
VPC, the State and the Ministers to carry out their obligations
under the Forestry Agreements.
Ratification of the Forestry Agreements
(a)
In performing its obligations under this Agreement, the Purchaser
acknowledges that the Forestry Agreement is ratified by the Forestry Act
and has effect as if the provisions of the Forestry Agreement had been
expressly included in the Forestry Act.
(b)
The Purchaser acknowledges that:
(1)
the Services include any services, obligations, actions, decisions or
determinations; and
(2)
in performing the Services, the Purchaser must comply with any
obligations, principles, considerations or legal requirements
(whether arising by virtue of contract, administrative, constitutional
or equity law or otherwise)
which arise as a result of the subject matter of the acknowledgment in
clause 3.2(a).
3.3
3.4
Responsibility for loss
(a)
The Purchaser releases VPC, the State and the Ministers from and
indemnifies them against any Loss or liability brought against or suffered,
incurred or payable by VPC, the State or the Ministers arising (whether
under contract, statute, tort or otherwise) directly or indirectly out of or in
any way attributable to or in connection with the performance of the
Services, this Agreement (including clause 3.5) or the Forestry Agreement
or any activities related thereto, on or after the date of this Agreement.
(b)
The Purchaser releases VPC, the State and the Ministers from and is
responsible for the risk and cost of any Loss or liability brought against or
suffered, incurred or payable by VPC, the State or the Ministers arising
(whether under contract, statute, tort or otherwise) directly or indirectly out
of or in any way attributable to or in connection with the performance of
the Services, this Agreement (including clause 3.5) or the Forestry
Agreement or any activities related thereto, before the date of this
Agreement.
Reporting
The Purchaser shall report to a nominated officer or agent of VPC (“Contract
Officer”) in respect of all matters relating to this Agreement. The Purchasers shall
provide to the Contract Officer upon request, written reports on the performance
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Asset Sale Agreement
by the Purchaser of its obligations under this Agreement and provide such other
information and forecasts relating to the Services as the Contract Officer may
request and shall keep full business and accounting records relating to its
performance and allow the Contract Officer to inspect those records (and to make
copies) at all reasonable times.
3.5
Litigation
(a)
(b)
3.6
The Purchaser agrees that it will;
(1)
not object to be joined as a party to any legal action, claim, dispute
or proceedings with the Customer in respect of the Forestry
Agreement or any Loss or liability for which the Purchaser is
responsible under clause 3.3; and
(2)
if requested by VPC, use its best endeavours to defend any action,
claim, dispute or proceeding brought against VPC arising directly
or indirectly out of or in any way attributable to the performance of
the Services or the Forestry Agreement, including retaining and
instructing solicitors or other advisers.
If the Purchaser receives a request pursuant to clause 3.5(a)(2), VPC
authorises the Purchaser to give instructions to such solicitors or advisers
for and on behalf of VPC at the Purchaser's discretion, for the purposes
only of clause 3.5(a)(2), without the need to obtain any further
authorisation in any particular case from VPC but with the obligation upon
the Purchaser to keep the VPC informed. VPC appoints the Purchaser as
VPC's attorney with full licence, power and authority for the purposes only
of clause 3.5(a)(2), including without limitation to take all such steps and
proceedings and to do and execute all such acts, deeds and things as are
necessary or as seem to the Purchaser to be expedient for the purpose of
this clause 3.5, to commence, carry on and prosecute, settle and
compromise all actions, suits and proceedings at law or in equity referred
to in this clause 3.5 and generally to do, perform and execute all such
further and other acts, deeds, matters and things which become necessary
or regarded by the Purchaser in its discretion as desirable for the purposes
of this clause 3.5.
Land pertaining to the Forestry Agreement
The Purchaser agrees not to dispose of any right, title or interest in:
(a)
the Plantation Licence;
(b)
the land to which the Plantation Licence pertains; or
(c)
the land to which the Forestry Agreement pertains,
without also assigning its rights and obligations under this Agreement to a party
which acquires the Purchaser’s right title and interest in the Plantation Licence
and the land to the extent that the disposal would affect the performance by the
Purchaser of its obligations under this Agreement, on terms reasonably acceptable
to VPC.
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Asset Sale Agreement
4
Obligations of VPC
4.1
Directions to the Customers
Subject to the Purchaser’s compliance with clause 3, VPC shall direct the
Customers to:
(a)
make any payments; and
(b)
send copies of any notices
pursuant to the Forestry Agreement to the Purchaser.
4.2
No interference with Services
Subject to the Purchaser’s compliance with clause 3, VPC shall not take any
action which would interfere with the Purchaser’s performance of its obligations
under that clause, unless provided for by this Agreement.
4.3
4.4
No amendment of Forestry Agreement
(a)
Subject to any obligation contained in the Forestry Agreement, VPC will
not waive any right or amend, or extend the Forestry Agreement without
the prior consent of the Purchaser.
(b)
The parties acknowledge that nothing in this Agreement limits or restricts
any rights of VPC, the Ministers or the State to terminate the Forestry
Agreement.
Termination of the Forestry Agreement
If any consent or approval is required by a Minister for the termination of the
Forestry Agreement, VPC shall use its best endeavours to procure the granting of
that consent provided that any conditions or procedures with respect to that
termination which are contained in the Forestry Agreement have been complied
with.
5
State to consider representations
The State will consider, in good faith, but is nevertheless not bound to accept,
support or advance any proposal by the Purchaser (which has been agreed to by
the Customer) to replace the Forestry Agreement with a new contract between the
Purchaser and the Customer, and the State acknowledges that such a proposal may
involve the introduction into Parliament of a Bill which would amend or repeal
the Forestry Act and Forestry Agreement.
6
Obligations to accept assignment of the Forestry Agreement
In the event that the Customer, VPC and the State agree to allow VPC to assign its
rights and obligations under, or to novate, the Forestry Agreement to the
Purchaser, whether or not such transaction includes a full and unconditional
discharge and release of VPC, the State and the Ministers from the Customer in
respect of the Forestry Agreement, the Purchaser unconditionally and irrevocably
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Asset Sale Agreement
agrees to accept any such assignment or novation on terms which may include a
full release and discharge of VPC, the State and the Ministers from all obligations
and liabilities (including those arising before the date of assignment or novation)
in respect of the Forestry Agreement.
7
Representations and Warranties
7.1
Representations and Warranties
The Purchaser hereby represents and warrants that:
7.2
(a)
it has the power to execute this Agreement and to perform its obligations
under this Agreement and has taken all necessary action (including
obtaining all shareholder approvals and authorisations) to authorise such
execution and performance;
(b)
this Agreement constitutes a legally valid and binding obligation of the
Purchaser enforceable in accordance with its terms;
(c)
the execution and performance of this Agreement will not violate any
provision of:
(1)
any law, regulation, order, rule or decree of any governmental
agency or authority of the Commonwealth of Australia or any state
or territory or, where the Purchaser is incorporated outside
Australia, of the place of its incorporation, or any recognised stock
exchange on which its shares or the shares of any related body
corporate are listed;
(2)
the memorandum or articles of association (or equivalent
constituent documentation) of the Purchaser; and
(3)
any security agreement, deed, contract, undertaking or other
instrument to which the Purchaser is a party or which is binding on
it and does not and will not result in the creation or imposition of
any security over any of its assets pursuant to the provision of any
such security agreement, deed, contract, undertaking or other
instrument;
Continuing representations and warranties
The representations and warranties given in clause 7.1 are continuing
representations and warranties, and shall not merge on, and shall remain in full
force and effect after, the date of this Agreement.
7.3
Separate representations and warranties
Each representation and warranty given in clause 7.1 shall be treated as a separate
representation and warranty in respect of each statement made and the
interpretation of any statement made is not restricted by any reference to or
inference from any other statement.
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Asset Sale Agreement
8
Miscellaneous
8.1
8.2
Governing Law
(a)
This Agreement is governed by the laws of the State of Victoria.
(b)
Each of the parties irrevocably submits to the exclusive jurisdiction of the
courts of the State of Victoria.
Assignment
Subject to clauses 3.6 and 6 of this Agreement, this Agreement and each covenant,
term and condition hereof inures to the benefit of and is binding upon the parties
and their respective successors and permitted assigns, provided that:
8.3
(a)
the Purchaser must not assign all or any of its rights or obligations under
this Agreement without the prior written approval of VPC;
(b)
the Purchaser may without the necessity of obtaining such approval assign
its rights (and if applicable, its obligations) under this Agreement to a
corporation to which it is related within the meaning of the Corporations
Law but will not without the consent of VPC be released from any
obligations under this Agreement (such consent not to be unreasonably
withheld);
(c)
the Purchaser may without the necessity of obtaining approval under clause
8.2(a) create a charge over its rights under this Agreement for the benefit
of its financiers; or
(d)
a party must approve an assignment by the other party, if the other party
and the proposed assignee execute an assignment, in a form acceptable to
the first party, which requires the proposed assignee to perform all the
party’s obligations under this Agreement, unless, within 30 days of a
written request for approval, an independent chartered accountant
nominated by the President of the Institute of Chartered Accountants
(Victoria), determines that the proposed assignee is insolvent and unlikely
to be capable of performing the other party’s obligations under this
Agreement.
Notices
Notices given by one party to another under this Agreement will be in writing and
will be deemed served on actual receipt or:
(a)
at the time of transmission if given by facsimile; or
(b)
two clear days after posting by ordinary pre-paid post,
whichever is the earlier and such notices shall be addressed to each party at its
address or facsimile number as stated below:
VPC:
Level 5, 1 Treasury Place, Melbourne, VIC, 3000.
Attention:
The Administrator.
The Purchaser:
Level 18, Grosvenor Place, 225 George Street, Sydney, NSW, 2000.
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Asset Sale Agreement
Attention:
8.4
8.5
Bruce McKnight.
Relationship of the Parties
(a)
The relationship between VPC and the Purchaser is that of an independent
contractor. Nothing in this Agreement is intended to or shall establish any
other relationship between the Purchaser and VPC, including that of
principal and agent.
(b)
None of the provisions of this Agreement (other than clause 6, to the extent
provided for in that clause) shall operate so as to constitute an assignment
or disposition of the Forestry Agreements.
Variation
A variation of any term of this Agreement must be in writing and signed by the
parties.
8.6
Counterparts
This Agreement may consist of a number of counterparts and the counterparts
taken together constitute one and the same instrument.
8.7
8.8
Waiver
(a)
Waiver of any right, discretion or remedy arising pursuant to this
Agreement must be in writing and signed by the party granting the waiver.
(b)
A failure or delay in exercise, or partial exercise, of a right, discretion or
remedy arising from a breach of this Agreement does not result in a waiver
of that right, discretion or remedy.
(c)
A party is not entitled to rely on a delay in the exercise or non-exercise of a
right, discretion or remedy arising from a breach of this Agreement or on a
default under this Agreement as constituting a waiver of that right,
discretion or remedy.
(d)
A party may not rely on any conduct of another party as a defence to
exercise of a right, discretion or remedy by that other party.
(e)
This clause may not itself be waived except by writing.
Indemnities
The indemnities in this Agreement survive termination of this Agreement.
8.9
Further assurances
Each party must do all things and execute all further documents necessary to give
full effect to this Agreement.
8.10 Entire agreement
(a)
This Agreement supersedes all previous agreements in respect of its
subject matter and embodies the entire agreement between the parties.
(b)
Each party acknowledges that, except as expressly stated in this
Agreement, that party has not relied on any representation, warranty or
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Asset Sale Agreement
undertaking of any kind made by or on behalf of the other party in relation
to the subject matter of this Agreement.
8.11 To the extent not excluded by law
The rights, duties and remedies granted or imposed under the provisions of this
Agreement operate to the extent not excluded by law.
8.12 Severability
If any provision of this Agreement offends any law applicable to it and is as a
consequence illegal, invalid or unenforceable then:
(a)
where the offending provision can be read down so as to give it a valid and
enforceable operation of a partial nature it must be read down to the extent
necessary to achieve that result; and
(b)
in any other case the offending provision must be severed from this
Agreement in which event the remaining provisions of the agreement
operate as if the severed provision had not been included.
However the parties will negotiate in good faith to replace the severed provision
with one that is not illegal or unenforceable and provides as near as possible the
same effect as the severed provision.
8.13 Payment
Any amount which is payable by the Purchaser to VPL under this Agreement is
required to be paid on demand or such other time nominated by VPC.
8.14 Interest
(a)
If any money which one party owes to the other under this Agreement is
overdue, that party must pay to the other party interest calculated in
accordance with clause 8.14(b) whether or not the party to whom any
money is owing has made a formal demand for the money.
(b)
The interest payable is to:
(c)
(1)
be calculated on the overdue money from the due date of payment
to the date when payment is received in full;
(2)
be capitalised on the last day of each month;
(3)
accrue daily at a rate equivalent to the aggregate of 2% per annum
and the Base Rate applicable on the last business day of the month
preceding that day.
Nothing in this clause limits any other right, power or remedy which a
party may have in respect of money which it is owed.
8.15 Costs
The Purchaser will pay all of the costs of any accountant appointed under
clause 8.2(d).
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Asset Sale Agreement
EXECUTED by the parties as an agreement.
SIGNED by THE HONOURABLE
ALAN ROBERT STOCKDALE in
the presence of:
________________________________
_______________________________
Witness
Name (printed):
THE OFFICIAL SEAL
of VICTORIAN PLANTATIONS CORPORATION
was affixed to this
document in the presence
of:
_______________________________
Secretary/Director
_______________________________
Name (please print)
_________________________________
Director
_________________________________
Name (please print)
THE COMMON SEAL
of HANCOCK VICTORIAN
PLANTATIONS PTY LTD
was affixed to this
document in the presence of:
_______________________________
Secretary/Director
_______________________________
Name (please print)
Freehill Hollingdale & Page MELCC
_________________________________
Director
_________________________________
Name (please print)
page 29
Asset Sale Agreement
Schedule 1 - Forestry Agreements
Forestry Agreement and Act
Forests (Laminex Industries Agreement) Act 1989 (including
letters dated 26 June 1996, 30 July 1996, 29 June 1998 and
18 July 1998).
Customer
Laminex Industries
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Asset Sale Agreement
Forestry Services Agreement
State
Victorian Plantations Corporation
and
Hancock Victorian Plantations Pty Ltd
101 Collins Street Melbourne Victoria 3000 Australia
GPO Box 128A Melbourne 3001
Telephone (03) 9288 1234 Facsimile (03) 9288 1567 DX 240 Melbourne
Reference: RWN:AMR:SJR
MELBOURNE
SYDNEY
PERTH
CANBERRA
BRISBANE
SINGAPORE
CORRESPONDENT OFFICE IN JAKARTA
HANOI
HO CHI MINH CITY
Lia bilit y is limit e d by t he S o lic it o r s S c he me u nd e r t he P r o fe ssio na l S t a nd a r d s Ac t 1 9 9 4 ( N S W)
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Asset Sale Agreement
Table of contents
Clause
Page
1 Definitions and Interpretation
1.1 Definitions
1.2 Interpretation
2 Term
2.1 Commencement
2.2 Termination
2.3 Termination not to affect rights
3 Obligations of the Purchaser
3.1 Performance of the Services
3.2 Ratification of the Forestry Agreements
3.3 Responsibility for loss
3.4 Reporting
3.5 Litigation
3.6 Land pertaining to the Forestry Agreement
4 Obligations of VPC
4.1 Directions to the Customers
4.2 No interference with Services
4.3 No amendment of Forestry Agreement
4.4 Termination of the Forestry Agreement
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34
34
34
34
34
34
34
34
34
5 State to consider representations
34
6 Obligations to accept assignment of the Forestry Agreement
34
7 Representations and Warranties
34
7.1 Representations and Warranties
7.2 Continuing representations and warranties
7.3 Separate representations and warranties
8 Miscellaneous
8.1 Governing Law
8.2 Assignment
8.3 Notices
8.4 Relationship of the Parties
8.5 Variation
8.6 Counterparts
8.7 Waiver
8.8 Indemnities
8.9 Further assurances
8.10 Entire agreement
8.11 To the extent not excluded by law
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34
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8.12 Severability
8.13 Payment
8.14 Interest
8.15 Costs
Schedule 1 - Forestry Agreements
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page 3
Asset Sale Agreement
This Forestry Services Agreement
is made on 17 November 1998 between the following parties:
1.
The Honourable Alan Robert Stockdale
in his capacity as Treasurer of the State of Victoria for and on behalf of the
Crown in the right of the State
(State)
2.
Victorian Plantations Corporation
of 517 Flinders Lane, Melbourne, Victoria
(VPC)
3.
Hancock Victorian Plantations Pty Ltd
ACN 084 801 132
of Level 18 Grosvenor Place, 225 George Street, Sydney, NSW, 2000
(Purchaser)
A.
Pursuant to the Forestry Agreement, VPC is obliged to make available a
supply of softwood sawlogs and round logs to the Customer in accordance
with the terms of that agreement.
B.
VPC and the Purchaser have entered into the Asset Sale Agreement which
includes the granting of a Plantation Licence under the Victorian
Plantations Corporation Act 1993 (Vic) to the Purchaser in respect of the
area of land the subject of the Forestry Agreement.
C.
VPC desires to subcontract the performance of its obligations pursuant to
the Forestry Agreement and the Purchaser desires to undertake those
obligations in accordance with this Agreement.
Recitals
The parties agree as follows:
1
Definitions and Interpretation
1.1
Definitions
In this Agreement unless the contrary intention appears:
Asset Sale Agreement means the Asset Sale Agreement dated 27 October 1998
between, amongst others, The Honourable Alan Robert Stockdale in his capacity
as Treasurer of the State of Victoria, VPC and the Purchaser.
Base Rate means, in respect of a given date, the rate percent per annum which is
described as the “Average Mid Rate” and appears on the page entitled “BBSW”
on the Reuters Monitor System at or about 10.00 am (Melbourne time) on that
date for a bank accepted bill of exchange having a tenor of 30 days.
Customer means the party to the Forestry Agreement specified as such in
Schedule 1.
Effective Date means the Completion Date as that term is defined in the Asset
Sale Agreement.
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Asset Sale Agreement
Forestry Act means the Act specified as such in Schedule 1.
Forestry Agreement means the agreement specified as such in Schedule 1.
Plantation Licence means the licence granted pursuant to section 27B of the
Victorian Plantations Corporation Act 1993 (Vic) to the Purchaser in respect of
the area of land the subject of the Forestry Agreement.
Loss means any and all losses, claims, demands, injuries, actions, liabilities,
damages, expenses, diminutions in value or deficiencies of any kind or character
(whether consequential or otherwise or whether or not known or asserted on or
before the date of this Agreement) including, without limitation, all interest and
other amounts payable to third parties, all liabilities on account of taxes and all
legal (on a full indemnity basis) and other expenses reasonably incurred in
connection with investigating or defending any claims or actions, whether or not
resulting in any liability and all amounts paid in settlement of claims or actions.
Ministers means the Ministers listed in Schedule 1 in respect of the Forestry
Agreement.
Services means the services, obligations, actions, decisions and determinations
required of VPC, the State or the Ministers pursuant to the Forestry Agreement,
including, but without limitation:
(a)
preparing a plan of utilisation;
(b)
making available a supply of softwood sawlogs;
(c)
felling and removing softwood sawlogs;
(d)
calculating or determining any and all charges which VPC is required to
calculate or determine in accordance with the Forestry Agreement;
(e)
paying any and all charges;
(f)
such other additional services, obligations, actions decisions or
determinations in relation to the Forestry Agreement as are necessary or
desirable to be performed in provision of those services, obligations,
actions, decisions or determinations or as are agreed between VPC and the
Purchaser from time to time.
State means the State of Victoria.
1.2
Interpretation
In this Agreement unless the contrary intention appears, a reference to:
(a)
a reference to a statute, ordinance, code or other law includes regulations
and other instruments under, and consolidations, amendments, reenactments, extensions or replacements of that statute, ordinance, code or
law;
(b)
a reference to a thing (including, without limitation, an amount) is a
reference to the whole and each part of it;
(c)
the singular includes the plural and vice versa;
(d)
the words “person” and “entity” each include a natural person, firm, body
corporate, partnership (whether limited or otherwise), joint venture, trust,
an unincorporated association and an Authority;
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Asset Sale Agreement
2
(e)
a reference to a person includes a reference to the person’s executors,
administrators, successors, substitutes (including, but not limited to,
persons taking by novation) and permitted assigns;
(f)
a reference to one gender includes all genders;
(g)
where a word or phrase is specifically defined in this Agreement, other
parts of speech and grammatical forms of that word or phrase have
corresponding meaning;
(h)
a reference to a document includes all amendments or supplements to, or
replacements or novations of, that document;
(i)
a reference to a party to a document includes that party's successors and
permitted assigns;
(j)
no provision of this Agreement will be construed adversely to a party
solely on the ground that the party was responsible for the preparation of
this Agreement or that provision; and
(k)
headings are inserted for convenience and do not affect the interpretation
of this Agreement.
Term
2.1
Commencement
This Agreement takes effect upon the Effective Date.
2.2
Termination
This Agreement shall terminate on the earlier of:
2.3
(a)
termination of the Forestry Agreement;
(b)
assignment of the Forestry Agreement to the Purchaser in accordance with
clause 6; and
(c)
the date of completion of all of the obligations of VPC, the State and the
Ministers under the Forestry Agreement.
Termination not to affect rights
Termination of this Agreement does not affect any obligations or rights of the
parties pursuant to this Agreement which have arisen prior to its termination.
3
Obligations of the Purchaser
3.1
Performance of the Services
(a)
The Purchaser shall perform the Services.
(b)
Without in any way limiting the scope of clause 3.1(a), the parties agree
that in providing the Services the Purchaser will:
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Asset Sale Agreement
3.2
(1)
comply with all relevant provisions of the Forestry Agreement as if
the Purchaser was named as a party to that agreement in the place
of VPC;
(2)
be responsible for the risks and costs of performing the obligations
of VPC under the Forestry Agreement; and
(3)
do all things reasonably requested by VPC to provide VPC with all
assistance necessary or considered by VPC to be desirable to enable
VPC, the State and the Ministers to carry out their obligations
under the Forestry Agreements.
Ratification of the Forestry Agreements
(a)
In performing its obligations under this Agreement, the Purchaser
acknowledges that the Forestry Agreement is ratified by the Forestry Act
and has effect as if the provisions of the Forestry Agreement had been
expressly included in the Forestry Act.
(b)
The Purchaser acknowledges that:
(1)
the Services include any services, obligations, actions, decisions or
determinations; and
(2)
in performing the Services, the Purchaser must comply with any
obligations, principles, considerations or legal requirements
(whether arising by virtue of contract, administrative, constitutional
or equity law or otherwise)
which arise as a result of the subject matter of the acknowledgment in
clause 3.2(a).
3.3
3.4
Responsibility for loss
(a)
The Purchaser releases VPC, the State and the Ministers from and
indemnifies them against any Loss or liability brought against or suffered,
incurred or payable by VPC, the State or the Ministers arising (whether
under contract, statute, tort or otherwise) directly or indirectly out of or in
any way attributable to or in connection with the performance of the
Services, this Agreement (including clause 3.5) or the Forestry Agreement
or any activities related thereto, on or after the date of this Agreement.
(b)
The Purchaser releases VPC, the State and the Ministers from and is
responsible for the risk and cost of any Loss or liability brought against or
suffered, incurred or payable by VPC, the State or the Ministers arising
(whether under contract, statute, tort or otherwise) directly or indirectly out
of or in any way attributable to or in connection with the performance of
the Services, this Agreement (including clause 3.5) or the Forestry
Agreement or any activities related thereto, before the date of this
Agreement.
Reporting
The Purchaser shall report to a nominated officer or agent of VPC (“Contract
Officer”) in respect of all matters relating to this Agreement. The Purchasers shall
provide to the Contract Officer upon request, written reports on the performance
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Asset Sale Agreement
by the Purchaser of its obligations under this Agreement and provide such other
information and forecasts relating to the Services as the Contract Officer may
request and shall keep full business and accounting records relating to its
performance and allow the Contract Officer to inspect those records (and to make
copies) at all reasonable times.
3.5
Litigation
(a)
(b)
3.6
The Purchaser agrees that it will;
(1)
not object to be joined as a party to any legal action, claim, dispute
or proceedings with the Customer in respect of the Forestry
Agreement or any Loss or liability for which the Purchaser is
responsible under clause 3.3; and
(2)
if requested by VPC, use its best endeavours to defend any action,
claim, dispute or proceeding brought against VPC arising directly
or indirectly out of or in any way attributable to the performance of
the Services or the Forestry Agreement, including retaining and
instructing solicitors or other advisers.
If the Purchaser receives a request pursuant to clause 3.5(a)(2), VPC
authorises the Purchaser to give instructions to such solicitors or advisers
for and on behalf of VPC at the Purchaser's discretion, for the purposes
only of clause 3.5(a)(2), without the need to obtain any further
authorisation in any particular case from VPC but with the obligation upon
the Purchaser to keep the VPC informed. VPC appoints the Purchaser as
VPC's attorney with full licence, power and authority for the purposes only
of clause 3.5(a)(2), including without limitation to take all such steps and
proceedings and to do and execute all such acts, deeds and things as are
necessary or as seem to the Purchaser to be expedient for the purpose of
this clause 3.5, to commence, carry on and prosecute, settle and
compromise all actions, suits and proceedings at law or in equity referred
to in this clause 3.5 and generally to do, perform and execute all such
further and other acts, deeds, matters and things which become necessary
or regarded by the Purchaser in its discretion as desirable for the purposes
of this clause 3.5.
Land pertaining to the Forestry Agreement
The Purchaser agrees not to dispose of any right, title or interest in:
(a)
the Plantation Licence;
(b)
the land to which the Plantation Licence pertains; or
(c)
the land to which the Forestry Agreement pertains,
without also assigning its rights and obligations under this Agreement to a party
which acquires the Purchaser’s right title and interest in the Plantation Licence
and the land to the extent that the disposal would affect the performance by the
Purchaser of its obligations under this Agreement, on terms reasonably acceptable
to VPC.
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Asset Sale Agreement
4
Obligations of VPC
4.1
Directions to the Customers
Subject to the Purchaser’s compliance with clause 3, VPC shall direct the
Customers to:
(a)
make any payments; and
(b)
send copies of any notices
pursuant to the Forestry Agreement to the Purchaser.
4.2
No interference with Services
Subject to the Purchaser’s compliance with clause 3, VPC shall not take any
action which would interfere with the Purchaser’s performance of its obligations
under that clause, unless provided for by this Agreement.
4.3
4.4
No amendment of Forestry Agreement
(a)
Subject to any obligation contained in the Forestry Agreement, VPC will
not waive any right or amend, or extend the Forestry Agreement without
the prior consent of the Purchaser.
(b)
The parties acknowledge that nothing in this Agreement limits or restricts
any rights of VPC, the Ministers or the State to terminate the Forestry
Agreement.
Termination of the Forestry Agreement
If any consent or approval is required by a Minister for the termination of the
Forestry Agreement, VPC shall use its best endeavours to procure the granting of
that consent provided that any conditions or procedures with respect to that
termination which are contained in the Forestry Agreement have been complied
with.
5
State to consider representations
The State will consider, in good faith, but is nevertheless not bound to accept,
support or advance any proposal by the Purchaser (which has been agreed to by
the Customer) to replace the Forestry Agreement with a new contract between the
Purchaser and the Customer, and the State acknowledges that such a proposal may
involve the introduction into Parliament of a Bill which would amend or repeal
the Forestry Act and Forestry Agreement.
6
Obligations to accept assignment of the Forestry Agreement
In the event that the Customer, VPC and the State agree to allow VPC to assign its
rights and obligations under, or to novate, the Forestry Agreement to the
Purchaser, whether or not such transaction includes a full and unconditional
discharge and release of VPC, the State and the Ministers from the Customer in
respect of the Forestry Agreement, the Purchaser unconditionally and irrevocably
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Asset Sale Agreement
agrees to accept any such assignment or novation on terms which may include a
full release and discharge of VPC, the State and the Ministers from all obligations
and liabilities (including those arising before the date of assignment or novation)
in respect of the Forestry Agreement.
7
Representations and Warranties
7.1
Representations and Warranties
The Purchaser hereby represents and warrants that:
7.2
(a)
it has the power to execute this Agreement and to perform its obligations
under this Agreement and has taken all necessary action (including
obtaining all shareholder approvals and authorisations) to authorise such
execution and performance;
(b)
this Agreement constitutes a legally valid and binding obligation of the
Purchaser enforceable in accordance with its terms;
(c)
the execution and performance of this Agreement will not violate any
provision of:
(1)
any law, regulation, order, rule or decree of any governmental
agency or authority of the Commonwealth of Australia or any state
or territory or, where the Purchaser is incorporated outside
Australia, of the place of its incorporation, or any recognised stock
exchange on which its shares or the shares of any related body
corporate are listed;
(2)
the memorandum or articles of association (or equivalent
constituent documentation) of the Purchaser; and
(3)
any security agreement, deed, contract, undertaking or other
instrument to which the Purchaser is a party or which is binding on
it and does not and will not result in the creation or imposition of
any security over any of its assets pursuant to the provision of any
such security agreement, deed, contract, undertaking or other
instrument;
Continuing representations and warranties
The representations and warranties given in clause 7.1 are continuing
representations and warranties, and shall not merge on, and shall remain in full
force and effect after, the date of this Agreement.
7.3
Separate representations and warranties
Each representation and warranty given in clause 7.1 shall be treated as a separate
representation and warranty in respect of each statement made and the
interpretation of any statement made is not restricted by any reference to or
inference from any other statement.
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Asset Sale Agreement
8
Miscellaneous
8.1
8.2
Governing Law
(a)
This Agreement is governed by the laws of the State of Victoria.
(b)
Each of the parties irrevocably submits to the exclusive jurisdiction of the
courts of the State of Victoria.
Assignment
Subject to clauses 3.6 and 6 of this Agreement, this Agreement and each covenant,
term and condition hereof inures to the benefit of and is binding upon the parties
and their respective successors and permitted assigns, provided that:
8.3
(a)
the Purchaser must not assign all or any of its rights or obligations under
this Agreement without the prior written approval of VPC;
(b)
the Purchaser may without the necessity of obtaining such approval assign
its rights (and if applicable, its obligations) under this Agreement to a
corporation to which it is related within the meaning of the Corporations
Law but will not without the consent of VPC be released from any
obligations under this Agreement (such consent not to be unreasonably
withheld);
(c)
the Purchaser may without the necessity of obtaining approval under clause
8.2(a) create a charge over its rights under this Agreement for the benefit
of its financiers; or
(d)
a party must approve an assignment by the other party, if the other party
and the proposed assignee execute an assignment, in a form acceptable to
the first party, which requires the proposed assignee to perform all the
party’s obligations under this Agreement, unless, within 30 days of a
written request for approval, an independent chartered accountant
nominated by the President of the Institute of Chartered Accountants
(Victoria), determines that the proposed assignee is insolvent and unlikely
to be capable of performing the other party’s obligations under this
Agreement.
Notices
Notices given by one party to another under this Agreement will be in writing and
will be deemed served on actual receipt or:
(a)
at the time of transmission if given by facsimile; or
(b)
two clear days after posting by ordinary pre-paid post,
whichever is the earlier and such notices shall be addressed to each party at its
address or facsimile number as stated below:
VPC:
Level 5, 1 Treasury Place, Melbourne, VIC, 3000.
Attention:
The Administrator.
The Purchaser:
Level 18, Grosvenor Place, 225 George Street, Sydney, NSW, 2000.
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Asset Sale Agreement
Attention:
8.4
8.5
Bruce McKnight.
Relationship of the Parties
(a)
The relationship between VPC and the Purchaser is that of an independent
contractor. Nothing in this Agreement is intended to or shall establish any
other relationship between the Purchaser and VPC, including that of
principal and agent.
(b)
None of the provisions of this Agreement (other than clause 6, to the extent
provided for in that clause) shall operate so as to constitute an assignment
or disposition of the Forestry Agreements.
Variation
A variation of any term of this Agreement must be in writing and signed by the
parties.
8.6
Counterparts
This Agreement may consist of a number of counterparts and the counterparts
taken together constitute one and the same instrument.
8.7
8.8
Waiver
(a)
Waiver of any right, discretion or remedy arising pursuant to this
Agreement must be in writing and signed by the party granting the waiver.
(b)
A failure or delay in exercise, or partial exercise, of a right, discretion or
remedy arising from a breach of this Agreement does not result in a waiver
of that right, discretion or remedy.
(c)
A party is not entitled to rely on a delay in the exercise or non-exercise of a
right, discretion or remedy arising from a breach of this Agreement or on a
default under this Agreement as constituting a waiver of that right,
discretion or remedy.
(d)
A party may not rely on any conduct of another party as a defence to
exercise of a right, discretion or remedy by that other party.
(e)
This clause may not itself be waived except by writing.
Indemnities
The indemnities in this Agreement survive termination of this Agreement.
8.9
Further assurances
Each party must do all things and execute all further documents necessary to give
full effect to this Agreement.
8.10 Entire agreement
(a)
This Agreement supersedes all previous agreements in respect of its
subject matter and embodies the entire agreement between the parties.
(b)
Each party acknowledges that, except as expressly stated in this
Agreement, that party has not relied on any representation, warranty or
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Asset Sale Agreement
undertaking of any kind made by or on behalf of the other party in relation
to the subject matter of this Agreement.
8.11 To the extent not excluded by law
The rights, duties and remedies granted or imposed under the provisions of this
Agreement operate to the extent not excluded by law.
8.12 Severability
If any provision of this Agreement offends any law applicable to it and is as a
consequence illegal, invalid or unenforceable then:
(a)
where the offending provision can be read down so as to give it a valid and
enforceable operation of a partial nature it must be read down to the extent
necessary to achieve that result; and
(b)
in any other case the offending provision must be severed from this
Agreement in which event the remaining provisions of the agreement
operate as if the severed provision had not been included.
However the parties will negotiate in good faith to replace the severed provision
with one that is not illegal or unenforceable and provides as near as possible the
same effect as the severed provision.
8.13 Payment
Any amount which is payable by the Purchaser to VPL under this Agreement is
required to be paid on demand or such other time nominated by VPC.
8.14 Interest
(a)
If any money which one party owes to the other under this Agreement is
overdue, that party must pay to the other party interest calculated in
accordance with clause 8.14(b) whether or not the party to whom any
money is owing has made a formal demand for the money.
(b)
The interest payable is to:
(c)
(1)
be calculated on the overdue money from the due date of payment
to the date when payment is received in full;
(2)
be capitalised on the last day of each month;
(3)
accrue daily at a rate equivalent to the aggregate of 2% per annum
and the Base Rate applicable on the last business day of the month
preceding that day.
Nothing in this clause limits any other right, power or remedy which a
party may have in respect of money which it is owed.
8.15 Costs
The Purchaser will pay all of the costs of any accountant appointed under
clause 8.2(d).
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Asset Sale Agreement
EXECUTED by the parties as an agreement.
SIGNED by THE HONOURABLE
ALAN ROBERT STOCKDALE in
the presence of:
________________________________
_______________________________
Witness
Name (printed):
THE OFFICIAL SEAL
of VICTORIAN PLANTATIONS CORPORATION
was affixed to this
document in the presence
of:
_______________________________
Secretary/Director
_______________________________
Name (please print)
_________________________________
Director
_________________________________
Name (please print)
THE COMMON SEAL
of HANCOCK VICTORIAN
PLANTATIONS PTY LTD
was affixed to this
document in the presence of:
_______________________________
Secretary/Director
_______________________________
Name (please print)
Freehill Hollingdale & Page MELCC
_________________________________
Director
_________________________________
Name (please print)
page 14
Asset Sale Agreement
Schedule 1 - Forestry Agreements
Forestry Agreement and Act
Forests (Dunstan Agreement) Act 1987 (Vic) as amended by
Forests (Dunstan Agreement) (Amendment) Act 1997 (Vic)
(including amending agreement between Victorian Plantations
Corporation and Dunstan Timber Sales Pty Ltd dated 27 March
1997, deed of assignment and assumption between A Dunstan
Timber Sales Pty Ltd and Timber Industries Limited as at 25
November 1997 and letter dated 9 December 1994).
Customer
Timber Industries Limited ACN 000 049 221
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Asset Sale Agreement
Annexure G - Escrow Deed
Asset Sale Agreement
Escrow Deed
The Honourable Alan Robert Stockdale
Victorian Plantations Corporation
Forestry Victorian Plantations Pty Ltd
and
Freehill Hollingdale & Page
101 Collins Street Melbourne Victoria 3000 Australia
GPO Box 128A Melbourne 3001
Telephone (03) 9288 1234 Facsimile (03) 9288 1567 DX 240 Melbourne
Reference:
MELBOURNE
SYDNEY
PERTH
CANBERRA
BRISBANE
SINGAPORE
CORRESPONDENT OFFICE IN JAKARTA
HANOI
HO CHI MINH CITY
Lia bilit y is limit e d by t he S o lic it o r s S c he me u nd e r t he P r o fe ssio na l S t a nd a r d s Ac t 1 9 9 4 ( N S W)
Asset Sale Agreement
Table of contents
Clause
Page
1 Definitions
34
2 Appointment
34
3 Custody of Document
34
4 Document of no force or effect
34
5 Obligation of the Signatory
34
6 Release from escrow
34
7 Indemnity of Agent
34
8 Governing law and jurisdiction
34
9 Notices
34
10 Termination of deed
34
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Asset Sale Agreement
This escrow deed
is made on
October 1998 between the following parties:
1.
The Honourable Alan Robert Stockdale in his capacity as Treasurer
of the State of Victoria for and on behalf of the Crown in the right of the
State, of 1 Treasury Place, Melbourne, Victoria 3000 (State)
2.
Victorian Plantations Corporation a State business corporation
declared in accordance with the provisions of the State Owned Enterprises
Act 1992 (Vic) (Victorian Plantations Corporation)
3.
Forestry Victorian Plantations Pty Ltd
ACN 084 801 132
of Level 18 Grosvenor Place, 225 George Street, Sydney, NSW, 2000
(Signatory)
4.
Freehill Hollingdale & Page
of 101 Collins Street, Melbourne, Victoria 3000
(Agent)
A.
The Signatory and the Recipients wish to execute and deliver the Asset
Sale Agreement dated 27 October 1998 between:
Recitals
(a)
The State;
(b)
Victorian Plantations Corporation; and
(c)
Forestry Victorian Plantations Pty Ltd
(the Document) to the Agent to be held by the Agent on the terms of this
deed and delivered by the Agent to the Signatory and the Recipients upon
the Document being released from the terms of escrow embodied in this
deed.
B.
The parties wish to record the terms on which the Signatory and the
Recipients deliver the Document and the terms on which the Agent holds
the Document.
This deed witnesses:
1
Definitions
In this deed:
Bid Document means the bid document lodged by the Signatory with the
Recipients on 23 October 1998.
Business Day means a day on which banks are open for business in Melbourne
and Boston, Massachusetts, USA excluding a Saturday, Sunday or a public
holiday.
Escrow Release Date means 5:00pm (in Melbourne, Victoria) on 17 November
1998.
Recipients means the State and Victorian Plantations Corporation.
Asset Sale Agreement
Unconditional Commitments means unconditional commitments from the equity
investors described in the Bid Document or other equity investors for an aggregate
amount of A$220,000,000, evidenced to the Recipients in writing, in order that the
Signatory will be in a position to comply with its obligations under clause 4.3 of
the Document.
2
Appointment
The Agent enters into this agreement as agent of the Recipients for the purposes of
this deed until this deed is terminated in accordance with clause 10.
3
4
Custody of Document
3.1
After the Document is executed and delivered to the Agent, the Agent must retain
custody of the Document until it is released under clause 6 or the Recipients and
Signatory otherwise agree in writing.
3.2
The Agent must store the Document in a safe and secure manner at its offices at
101 Collins Street, Melbourne, Victoria 3000.
Document of no force or effect
The Document has no force or effect, and the Signatory and the Recipients have
no liability in respect of the Document, until the Document is released under this
deed, save for:
(a)
the payment by the Signatory to the State pursuant to clause 2.7 of the
Document; and
(b)
the arrangements set out in clause 15 (which shall lapse on the Escrow
Release Date if the Document has not been released from escrow).
Asset Sale Agreement
5
6
7
Obligation of the Signatory
5.1
The Signatory must use its best endeavours to obtain Unconditional Commitments
on or before the Escrow Release Date.
5.2
The Signatory acknowledges and agrees that it must not seek to amend or vary the
Document or agree to any of the investors providing a commitment to make funds
available on the basis that any amendment or variation is made to the Document.
5.3
The Signatory must advise the Recipients in writing per Mr D Christensen as to
the progress of the Signatory’s efforts to secure Unconditional Commitments from
each of the investors whom the Signatory has approached. Such notification must
be made on 2 November 1998 and every 3 Business Days from that date until the
Escrow Release Date and as each investor provides an Unconditional
Commitment.
Release from escrow
(a)
The Agent must hold the Document in escrow until the Signatory has
obtained on or before the Escrow Release Date the Unconditional
Commitments.
(b)
When the Agent is notified in writing by both the Signatory and the
Recipients that the conditions set out in clause 6(a) relating to the
Document have been fulfilled, the Document immediately has full force
and effect and the Agent must release the Document to the Recipients and
the Signatory.
(c)
If the conditions in clause 6(a) relating to the Document are not fulfilled or
are not waived by the Signatory on or before the Escrow Release Date the
Document has no force or effect.
(d)
The Signatory must promptly give notice to the Agent when the conditions
set out in clause 6(a) relating to the Document are fulfilled.
(e)
The Agent is entitled to rely on any notice under clause 6(d) which the
Agent believes is genuine and correct and to have been signed and sent by
the Signatory.
Indemnity of Agent
(a)
The Signatory and the Recipients jointly and severally indemnify the Agent
against any claim, action, damage, loss, liability, cost, charge, expense,
outgoing or payment suffered, paid or incurred by the Agent in respect of
the Agent entering into or performing its obligations under this deed,
except in the case of fraud, default or negligence in respect of its functions
under this deed.
(b)
The indemnity in clause 7(a) is a continuing indemnity and remains in full
force and effect despite any payment to the Agent or any other thing.
Asset Sale Agreement
8
9
Governing law and jurisdiction
(a)
This deed is governed by the laws of Victoria.
(b)
Each of the parties irrevocably submits to the non-exclusive jurisdiction of
the courts of Victoria.
Notices
Any notice or other communication to or by a party to this deed:
(a)
may be given by delivery in person or sent by post or facsimile
transmission;
(b)
must be in legible writing addressed as shown at the commencement of
this deed, marked to the attention of the following person:
(1)
if to the State:
fax:
(03) 9651 0034
with a copy to:
(2)
Attention:
Michael Lusis
fax:
(03) 9242 6231
if to the Signatory:
Attention:
D Christensen
fax:
(617) 7471516
with a copy to:
Attention:
Mike Roche
Deutsche Bank AG
fax:
(02) 9555 7040
and:
Attention:
Ilana Atlas
Mallesons Stephen Jaques
fax:
(3)
(02) 9296 3999
if to the Agent:
Attention:
Robert Nicholson
fax:
(03) 9288 1567
or as specified to the sender by any party by notice;
(c)
must be signed by the sender (if a natural person) or an officer or under the
common seal of the sender (if a corporation); and
(d)
is regarded as being given by the sender and received by the addressee
when delivered to the addressee at the address referred to in clause 9((b)).
Asset Sale Agreement
10
Termination of deed
Except for clause 7 this deed terminates once the Document has been released to
the Recipients and the Signatory or clause 6(c) applies or the Agent and Signatory
otherwise agree in writing.
Asset Sale Agreement
Executed as a deed:
Signed by The Honourable Alan
Robert Stockdale for and on behalf of
the State of Victoria in the presence
of:
________________________________
_______________________________
Witness
Name (printed):
The Official Seal
of Victorian Plantations Corporation
was affixed to this
document in the presence
of:
_______________________________
Secretary/Director
_______________________________
Name (please print)
_________________________________
Director
_________________________________
Name (please print)
The common seal of
Forestry Victorian
Plantations Pty Ltd
was affixed to this
document in the presence of:
_______________________________
Secretary/Director
_______________________________
Name (please print)
_________________________________
Director
_________________________________
Name (please print)
Signed, sealed and delivered by
Robert Nicholson
for and on behalf of
Freehill Hollingdale & Page
in the presence of:
________________________________
Witness
________________________________
Name
________________________________
Robert Nicholson