Docstoc

Deed of Novation

Document Sample
Deed of Novation Powered By Docstoc
					                        Deed of Novation
                        Spotless P&F Pty Ltd (Spotless)
                        Melton Shire Council (Customer)
                        CityWide Service Solutions Pty Ltd (CityWide)




                                  MinterEllison
                                                                                      L   A   W   Y   E   R   S


                                  RIALTO TOWERS, 525 COLLINS STREET, MELBOURNE VIC 3000, DX 204 MELBOURNE
                                  TEL: +61 3 8608 2000 FAX: +61 3 8608 1000
                                  www.minterellison.com




ME_70035342_5 (W2003)
Novation deed
Details                                                       3

Agreed terms                                                  4
1.        Defined terms & interpretation                      4
1.1       Defined terms in Agreement                          4
1.2       Defined terms                                       4
1.3       Interpretation                                      4
1.4       Headings                                            5
2.        Novation                                            5
2.1       CityWide party to Agreement                         5
2.2       CityWide bound by Agreement                         5
2.3       Condition precedent                                 6
3.        Releases                                            6
4.        Representations & warranties                        6
5.        GST                                                 6
5.1       Interpretation                                      6
5.2       GST gross up                                        6
5.3       Reimbursements                                      7
5.4       Tax invoice                                         7
6.        Notices and other communications                    7
6.1       Service of notices                                  7
6.2       Effective on receipt                                7
7.        Miscellaneous                                       7
7.1       Alterations                                         7
7.2       Approvals and consents                              7
7.3       Assignment                                          7
7.4       Costs                                               7
7.5       Stamp duty                                          8
7.6       Survival                                            8
7.7       Counterparts                                        8
7.8       No merger                                           8
7.9       Entire agreement                                    8
7.10      Further action                                      8
7.11      Severability                                        8
7.12      Waiver                                              8
7.13      Relationship                                        8
7.14      Confidentiality                                     8
7.15      Announcements                                       9
7.16      Governing law and jurisdiction                      9
7.17      Attorneys                                           9

Signing page                                                10
Minter Ellison | Ref: NSK BCL 30-5132255     Deed of Novation| page 2




ME_70035342_5 (W2003)
Details

Date

Parties
Name                             Spotless P&F Pty Ltd
ABN                              83 072 293 880
Short form name                  Spotless
Notice details                   350 Queen Street, Melbourne, Victoria, 3000
                                 Facsimile: (03) 9269 7605
                                 Attention: Michael Givoni


Name                             Melton Shire Council
Short form name                  Customer
Notice details                   232 High Street, Melton, Victoria, 3337
                                 Facsimile: (03) 9743 9970
                                 Attention: Chief Executive Officer

Name                              CityWide Service Solutions Pty Ltd
ABN                               94 066 960 085
Short form name                   CityWide
Notice details                    Level 1, 150 Jolimont Rd, East Melbourne, Victoria, 3002
                                  Facsimile: (03) 9261 5019
                                  Attention: John Collins


Background
 A         Spotless and the Customer are parties to the Agreement.
 B         Spotless and CityWide have asked the Customer to agree to a novation of the Agreement so that
           Spotless is released and discharged from the Agreement and CityWide becomes entitled to the
           rights and benefits and assumes the obligations of Spotless under the Agreement.
 C         CityWide is to replace Spotless under the Agreement on the terms of this deed.
 D         By executing this deed, the Customer consents to the novation effected by this deed.




Minter Ellison | Ref: NSK BCL 30-5132255                                                     Deed of Novation| page 3




ME_70035342_5 (W2003)
Agreed terms
1.        Defined terms & interpretation
1.1       Defined terms in Agreement
          Defined terms in the Agreement have the same meanings in this deed, unless the contrary
          intention appears.
1.2       Defined terms
          In this deed:
          Agreement means contract number 04/005 between Spotless and the Customer for Parks
          Maintenance Services commencing on 1 April 2005.
          Business Day means:
          (a)       for receiving a notice under clause 6, a day that is not a Saturday, Sunday, public holiday
                    or bank holiday in the place where the notice is received; and
          (b)       for all other purposes, a day that is not a Saturday, Sunday, bank holiday or public holiday
                    in Victoria, Australia.
          Business Hours means from 9.00am to 5.00pm on a Business Day.
          Claims means all existing and future actions, suits, causes of action, claims and demands arising,
          directly or indirectly, out of the Agreement.
          Corporations Act means the Corporations Act 2001 (Cth).
          Customer Claims means any Claims that the Customer may have against Spotless.
          Effective Date means 30 November 2006 or such other completion date under the Sale
          Agreement, as notified to the Customer by Spotless.
          Sale Agreement means the asset sale agreement between Spotless Services Australia Limited
          ACN 005 309 320, Berkeley Challenge Pty Ltd ACN 000 464 755, Spotless and CityWide dated
          28 August 2006.
          Spotless Claims means any Claims that Spotless may have against the Customer.
1.3       Interpretation
          In this deed, except where the context otherwise requires:
          (a)       the singular includes the plural and vice versa, and a gender includes other genders;
          (b)       another grammatical form of a defined word or expression has a corresponding meaning;
          (c)       a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or
                    schedule or annexure to, this deed, and a reference to this deed includes any schedule or
                    annexure;
          (d)       a reference to a document or instrument includes the document or instrument as novated,
                    altered, supplemented or replaced from time to time;
          (e)       a reference to A$, $A, dollar or $ is to Australian currency;
          (f)       a reference to time is to Melbourne, Australia time;

Minter Ellison | Ref: NSK BCL 30-5132255                                                      Deed of Novation| page 4




ME_70035342_5 (W2003)
          (g)       a reference to a party is to a party to this deed, and a reference to a party to a document
                    includes the party's executors, administrators, successors and permitted assigns and
                    substitutes;
          (h)       a reference to a person includes a natural person, partnership, body corporate, association,
                    governmental or local authority or agency or other entity;
          (i)       a reference to a statute, ordinance, code or other law includes regulations and other
                    instruments under it and consolidations, amendments, re-enactments or replacements of
                    any of them;
          (j)       a word or expression defined in the Corporations Act has the meaning given to it in the
                    Corporations Act;
          (k)       the meaning of general words is not limited by specific examples introduced by including,
                    for example or similar expressions;
          (l)       any agreement, representation, warranty or indemnity by two or more parties (including
                    where two or more persons are included in the same defined term) binds them jointly and
                    severally;
          (m)       any agreement, representation, warranty or indemnity in favour of two or more parties
                    (including where two or more persons are included in the same defined term) is for the
                    benefit of them jointly and severally;
          (n)       a rule of construction does not apply to the disadvantage of a party because the party was
                    responsible for the preparation of this deed or any part of it; and
          (o)       if a day on or by which an obligation must be performed or an event must occur is not a
                    Business Day, the obligation must be performed or the event must occur on or by the next
                    Business Day.
1.4       Headings
          Headings are for ease of reference only and do not affect interpretation.

2.        Novation
2.1       CityWide party to Agreement
          Each party agrees with each other party that, with effect from the Effective Date, CityWide is
          taken to be a party to the Agreement instead of Spotless and all references to Spotless are to be
          read as references to CityWide.
2.2       CityWide bound by Agreement
          On and from the Effective Date:
          (a)       CityWide has all the rights and undertakes to perform and be responsible for the
                    obligations of Spotless under the Agreement (whether relating to the period before or after
                    the Effective Date) to the extent that they have not been performed as at the Effective Date
                    and to be bound by the terms of the Agreement in all respects as if CityWide had
                    originally been named in the Agreement as a party instead of Spotless; and
          (b)       CityWide and the Customer are bound by and must comply with the Agreement, as if
                    CityWide were a party to the Agreement rather than Spotless.



Minter Ellison | Ref: NSK BCL 30-5132255                                                        Deed of Novation| page 5




ME_70035342_5 (W2003)
2.3       Condition precedent
          (a)       The novation effected by this deed is conditional on the approval by the Minister for Local
                    Government to the novation under section 186(5)(c) of the Local Government Act 1989
                    (Vic) (Condition).
          (b)       In satisfaction of the Condition, the Customer must provide Spotless and CityWide with a
                    copy of any documentation from the Minister for Local Government evidencing the
                    approval.

3.        Releases
          As a consequence of clause 2:
          (a)       Spotless absolutely and irrevocably releases and discharges the Customer from all
                    Spotless Claims; and
          (b)       the Customer absolutely and irrevocably releases and discharges Spotless from all
                    Customer Claims.

4.        Representations & warranties
          Each party represents and warrants that:
          (a)       it has the full power and authority to enter into and to perform its obligations under this
                    deed;
          (b)       the execution, delivery and performance by it of this deed does not and will not violate in
                    any respect any provision of:
                    (i)       any law, regulation, authorisation, ruling, consent, judgment, order or decree of
                              any government agency; or
                    (ii)      its constituent documents,
                    and does not and will not result in a breach or default in any material respect under any
                    agreement binding it; and
          (c)       any authorisations required in connection with the execution, delivery and performance by
                    it and the validity and enforceability against it of this deed have been obtained or effected
                    and are in full force, and there has been no material default by it in the performance of any
                    of the terms and conditions of any of those authorisations.

5.        GST
5.1       Interpretation
          In this clause 5, a word or expression defined in the A New Tax System (Goods and Services Tax)
          Act 1999 (Cth) has the meaning given to it in that Act.
5.2       GST gross up
          If a party makes a supply under or in connection with this deed in respect of which GST is
          payable, the consideration for the supply but for the application of this clause 5.2 (GST exclusive
          consideration) is increased by an amount equal to the GST exclusive consideration multiplied by
          the rate of GST prevailing at the time the supply is made.



Minter Ellison | Ref: NSK BCL 30-5132255                                                        Deed of Novation| page 6




ME_70035342_5 (W2003)
5.3       Reimbursements
          If a party must reimburse or indemnify another party for a loss, cost or expense, the amount to be
          reimbursed or indemnified is first reduced by any input tax credit the other party is entitled to for
          the loss, cost or expense, and then increased in accordance with clause 5.2.
5.4       Tax invoice
          A party need not make a payment for a taxable supply made under or in connection with this deed
          until it receives a tax invoice for the supply to which the payment relates.

6.        Notices and other communications
6.1       Service of notices
          A notice, demand, consent, approval or communication under this deed (Notice) must be:
          (a)       in writing, in English and signed by a person duly authorised by the sender; and
          (b)       hand delivered or sent by prepaid post or facsimile to the recipient's address for Notices
                    specified in the Details, as varied by any Notice given by the recipient to the sender.
6.2       Effective on receipt
          A Notice given in accordance with clause 6.1 takes effect when taken to be received (or at a later
          time specified in it), and is taken to be received:
          (a)       if hand delivered, on delivery;
          (b)       if sent by prepaid post, on the second Business Day after the date of posting (or on the
                    seventh Business Day after the date of posting if posted to or from a place outside
                    Australia); or
          (c)       if sent by facsimile, when the sender’s facsimile system generates a message confirming
                    successful transmission of the entire Notice unless, within eight Business Hours after the
                    transmission, the recipient informs the sender that it has not received the entire Notice,
          but if the delivery, receipt or transmission is not on a Business Day or is after 5.00pm on a
          Business Day, the Notice is taken to be received at 9.00am on the next Business Day.

7.        Miscellaneous
7.1       Alterations
          This deed may be altered only in writing signed by each party.
7.2       Approvals and consents
          Except where this deed expressly states otherwise, a party may, in its discretion, give
          conditionally or unconditionally or withhold any approval or consent under this deed.
7.3       Assignment
          A party may only assign this deed or a right under this deed with the prior written consent of each
          other party.
7.4       Costs
          (a)       Subject to clause 7.4(b) and 7.4(c), each party must pay its own costs of negotiating,
                    preparing and executing this deed;



Minter Ellison | Ref: NSK BCL 30-5132255                                                      Deed of Novation| page 7




ME_70035342_5 (W2003)
          (b)       Spotless and CityWide must pay the Customer's legal costs up to a maximum amount of
                    $1,400 plus GST for negotiating, preparing and executing this deed within 30 days
                    following execution of this deed (Customer Costs); and
          (c)       Spotless and CityWide agree to each be responsible for half of the aggregate amount of
                    the Customer Costs.
7.5       Stamp duty
          Any stamp duty, duties or other taxes of a similar nature (including fines, penalties and interest) in
          connection with this deed or any transaction contemplated by this deed, must be paid by
          CityWide.
7.6       Survival
          Any indemnity or any obligation of confidence under this deed is independent and survives
          termination of this deed. Any other term by its nature intended to survive termination of this deed
          survives termination of this deed.
7.7       Counterparts
          This deed may be executed in counterparts. All executed counterparts constitute one document.
7.8       No merger
          The rights and obligations of the parties under this deed do not merge on completion of any
          transaction contemplated by this deed.
7.9       Entire agreement
          This deed constitutes the entire agreement between the parties in connection with its subject
          matter and supersedes all previous agreements or understandings between the parties in
          connection with its subject matter.
7.10 Further action
          Each party must do, at its own expense, everything reasonably necessary (including executing
          documents) to give full effect to this deed and any transaction contemplated by it.
7.11 Severability
          A term or part of a term of this deed that is illegal or unenforceable may be severed from this deed
          and the remaining terms or parts of the term of this deed continue in force.
7.12 Waiver
          A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the
          right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent
          another or further exercise of that or another right, power or remedy. A waiver of a right, power
          or remedy must be in writing and signed by the party giving the waiver.
7.13 Relationship
          Except where this deed expressly states otherwise, it does not create a relationship of
          employment, trust, agency or partnership between the parties.
7.14 Confidentiality
          A party may only use confidential information of another party for the purposes of this deed, and
          must keep the existence and the terms of this deed and any confidential information of another
          party confidential except where:
          (a)       the information is public knowledge (but not because of a breach of this deed) or the party
                    has independently created the information;
Minter Ellison | Ref: NSK BCL 30-5132255                                                     Deed of Novation| page 8




ME_70035342_5 (W2003)
          (b)       disclosure is required by law or a regulatory body (including a relevant stock exchange);
                    or
          (c)       disclosure is made to a person who must know for the purposes of this deed on the basis
                    that the person keeps the information confidential.
7.15 Announcements
          A public announcement in connection with this deed or any transaction contemplated by it must
          be agreed by the parties before it is made, except if required by law or a regulatory body
          (including a relevant stock exchange), in which case the party required to make an announcement
          must, to the extent practicable, first consult with and take into account the reasonable
          requirements of each other party.
7.16 Governing law and jurisdiction
          This deed is governed by the law of Victoria and each party irrevocably and unconditionally
          submits to the non-exclusive jurisdiction of the courts of Victoria.
7.17 Attorneys
          Each person who executes this document on behalf of a party under a power of attorney declares
          that he or she is not aware of any fact or circumstance that might affect his or her authority to do
          so under that power of attorney.




Minter Ellison | Ref: NSK BCL 30-5132255                                                     Deed of Novation| page 9




ME_70035342_5 (W2003)
Signing page
EXECUTED as a deed.

Executed by Spotless P&F Pty Ltd in
accordance with s127(1) of the Corporations
Act

                                                 ←                                                                 ←
Signature of director                                   Signature of director/company secretary
                                                        (Please delete as applicable)



Name of director (print)                                Name of director/company secretary (print)




The Common Seal of MELTON SHIRE                   )
COUNCIL was affixed this……………. day                )
of ………………… 2006 in the presence of:               )


………………………………………                            Councillor


………………………………………                            Chief Executive Officer




Executed by CityWide Service Solutions
Pty Ltd in accordance with s127(1) of the
Corporations Act

                                                 ←                                                                 ←
Signature of director                                   Signature of director/company secretary
                                                        (Please delete as applicable)



Name of director (print)                                Name of director/company secretary (print)




Minter Ellison | Ref: NSK BCL 30-5132255                                                          Deed of Novation| page 10




ME_70035342_5 (W2003)

				
DOCUMENT INFO
Shared By:
Categories:
Tags: Deed, Novation
Stats:
views:391
posted:5/4/2010
language:English
pages:10
Description: Deed of Novation