EXHIBIT 4.26
FORESTRY CORPORATION OF NEW ZEALAND LIMITED
(IN RECEIVERSHIP) AND CITIC NEW
ZEALAND LIMITED (BVI) (IN RECEIVERSHIP)
BEING THE PARTNERS OF THE CENTRAL NORTH
ISLAND FOREST PARTNERSHIP
RED STAG WOOD PRODUCTS LIMITED
(IN RECEIVERSHIP)
RED STAG MOULDINGS LIMITED (IN RECEIVERSHIP)
XXXXXXX XXXXX XXXXXXXX AND XXXXX XXXXXX
XXXXXX
XXXXXXXX CHALLENGE FORESTS INDUSTRIES
LIMITED
XXXXXXXX CHALLENGE FORESTS MANUFACTURING LIMITED
XXXXXXXX CHALLENGE FORESTS FINANCE LIMITED
XXXXXXXX CHALLENGE FORESTS LIMITED
TIMBER MANAGEMENT COMPANY LIMITED
---------------------------------------
TRANSITION DEED
---------------------------------------
[MINTERELLISONRUDDWATTS LAWYERS LOGO]
CONTENTS
PAGE NO.
1. INTERPRETATION...................................................................................... 1
2. ROADING INFRASTRUCTURE.............................................................................. 8
3. RADIO COMMUNICATIONS................................................................................ 12
4. FIRE PROTECTION..................................................................................... 14
5. WAIOTAPU PREMISES................................................................................... 16
6. VEHICLE LEASES...................................................................................... 17
7. BUSINESS AND OTHER ASSETS........................................................................... 17
8. CNIFP PLANTS........................................................................................ 18
9. OTHER SURPLUS ASSETS................................................................................ 22
10. TE NGAE NURSERY..................................................................................... 22
11. MURUPARA RAILHEAD ISSUES............................................................................ 22
12. EXPORT RELATED ISSUES............................................................................... 23
13. CNIFP INFORMATION, IT AND DATA...................................................................... 23
14. RETURN OF CNIFP WORKING CAPITAL..................................................................... 25
15. INFORMATION CENTRE.................................................................................. 27
16. OTHER TRANSITIONAL MATTERS.......................................................................... 27
17. COMPLIANCE WITH STATUTES AND OTHER REQUIREMENTS..................................................... 31
18. RIGHT TO ASSIGN AND BENEFIT TO RUN WITH THE LAND.................................................... 32
19. ACKNOWLEDGMENT...................................................................................... 32
20. CONFIDENTIALITY..................................................................................... 33
21. DISPUTE RESOLUTION.................................................................................. 34
22. NOTICES............................................................................................. 35
23. NO WAIVERS.......................................................................................... 36
24. ENTIRE AGREEMENT.................................................................................... 36
25. WRITTEN VARIATIONS.................................................................................. 36
26. SEVERABILITY........................................................................................ 36
27. FURTHER ASSURANCES.................................................................................. 36
Transition Deed i
28. COUNTERPARTS........................................................................................ 36
29. OWN COSTS........................................................................................... 36
30. GOVERNING LAW AND JURISDICTION...................................................................... 37
31. MANAGEMENT AGREEMENT................................................................................ 37
32. LIMITATION OF LIABILITY OF RECEIVERS................................................................ 37
33. FCF LIABILITY....................................................................................... 38
SCHEDULE 1............................................................................................... 44
SCHEDULE 2............................................................................................... 45
SCHEDULE 3............................................................................................... 46
SCHEDULE 4............................................................................................... 47
SCHEDULE 5............................................................................................... 48
SCHEDULE 6............................................................................................... 50
SCHEDULE 7............................................................................................... 55
SCHEDULE 8............................................................................................... 59
Transition Deed ii
DEED dated 2003
PARTIES
FORESTRY CORPORATION OF NEW ZEALAND LIMITED (IN RECEIVERSHIP) ("FCNZ")
AND CITIC NEW ZEALAND LIMITED (BVI) (IN RECEIVERSHIP) ("CITIC") BEING
THE PARTNERS OF THE CENTRAL NORTH ISLAND FOREST PARTNERSHIP ("CNIFP")
RED STAG WOOD PRODUCTS LIMITED (IN RECEIVERSHIP) ("RSW")
RED STAG MOULDINGS LIMITED (IN RECEIVERSHIP) ("RSM")
XXXXXXX XXXXX XXXXXXXX AND XXXXX XXXXXX XXXXXX AS JOINT RECEIVERS OF
CNIFP (EACH A "RECEIVER" AND TOGETHER THE "RECEIVERS")
XXXXXXXX CHALLENGE FORESTS INDUSTRIES LIMITED (FORMERLY XXXXXXXX
CHALLENGE FORESTS LIMITED) ("FCF")
XXXXXXXX CHALLENGE FORESTS MANUFACTURING LIMITED ("FCM")
XXXXXXXX CHALLENGE FORESTS FINANCE LIMITED ("FCFL")
XXXXXXXX CHALLENGE FORESTS LIMITED ("FCL")
TIMBER MANAGEMENT COMPANY LIMITED ("TMC")
BACKGROUND
A. All of the parties to this deed other than TMC, RSW and RSM are parties
together with Kaingaroa Holdings Limited, Bank of New Zealand and CNI
Forest Nominees Limited to the Settlement Agreement. The Settlement
Agreement provides, inter alia, for termination of the Management
Agreement.
B. This deed records the agreement and understanding of the parties in
relation to certain transitional and longer term arrangements in
relation to or arising from the termination of the Management
Agreement.
COVENANTS
1. INTERPRETATION
1.1 DEFINITIONS: In this deed, unless the context otherwise requires:
"AFFILIATE" means any person that, directly or indirectly through one
or more intermediaries, is controlled by, is under common control with,
or is in control of, a party to this deed. A person will be deemed to
control another person for the purposes of this definition if the first
such person possesses, directly or indirectly, the power to appoint a
majority of the directors of the second person, or to otherwise direct
or cause the direction of the management or policies of the second
person, whether through the ownership of voting securities, by contract
or otherwise, provided
Transition Deed 1
however that, for the purposes of this definition, FCNZ is deemed not
to be an Affiliate of any member of the FCF Group or any Affiliate of
any member of the FCF Group;
"ANNIVERSARY DATE" means the date which is 12 months after the
Operational Date;
"BUSINESS" means the forestry and processing operations and activities
(including growing and harvesting forests, selling wood in New Zealand
and overseas, and processing of wood at the CNIFP Plants) carried on by
FCNZ and CITIC as the partners of CNIFP;
"BUSINESS DAY" means any day (other than a Saturday or a Sunday) on
which registered banks are open for business in Auckland;
"CHARGED ASSETS" means all those assets of FCNZ and CITIC at the
relevant time charged pursuant to a first charge debenture dated 27
September 1996 (as amended on 16 December 1996) executed by each of
FCNZ and CITIC (among others) in favour of the Bank of New Zealand as
security trustee;
"CNIFP INFORMATION" means:
(a) all information held by, or under the control of, FCF for the
collection of CNIFP debtors, both domestic and export;
(b) the forest stand record database, inventory data, yield tables
and spatial (GIS) data, and production, maintenance and
financial data, records, and database and spreadsheet
printouts held by, or under the control of, FCF for the
Business;
(c) harvest plans (including historic, current and harvest ready
plans), including those relating to clearfell and production
thinning, held by, or under the control of, FCF for the
Business;
(d) forest tending plans, including those relating to thinning,
pruning and spraying held by, or under the control of, FCF for
the Business;
(e) copies of all books and records of account maintained by FCF
for the Business;
(f) all data, information, records, reports and/or statements
(including environmental records and data) in relation to the
CNIFP forest estate for the purpose of obtaining and/or
maintaining FSC accreditation held by, or under the control
of, FCF;
(g) Intellectual Property that is site specific and used
specifically for the management or operations of the CNIFP
Plants (but not including the SAP, JMC, SIRS, SRMFS,
Smartstream and OEE systems and interfaces used at or in
relation to such CNIFP Plants and the Numetrix models);
(h) Data held by, or under the control of, FCF; and
(i) without limiting the generality of sub-clauses (a) to (h)
(inclusive) above, the data and information listed in schedule
7 to the extent held by, or under the control of, FCF;
"CNIFP IT" means all IT that is site specific and used specifically for
supporting the management or operations at any of the CNIFP Plants, but
does not include:
Transition Deed 2
(a) SAP, JMC, SIRS, SRMFS, Smartstream and OEE systems and
interfaces used at or in relation to such CNIFP Plants or the
Numetrix models;
(b) any CNIFP Information or Data;
(c) the items of computer and telephone equipment listed in
schedule 8; and
(d) the assets and equipment of FCF's IT applications group,
located at the CNIFP Plant at Waipa;
"CNIFP MONEYS" means all moneys (whether in NZ$ or otherwise) held or
received by FCF on account or in respect of the Business;
"CNIFP PLANTS" means each of KPP and the Relevant Processing Plants;
"CNIFP WORKING CAPITAL" means:
(a) all xxxx log stocks, log and chip stocks at Murupara, KPP and
the Relevant Processing Plants, and other log and chip stocks
(including any log and chip stocks at any port facility,
marshalling yard or storage facility) sourced from the CNIFP
forest estate that are in the possession or under the control
of FCF;
(b) all processed forest products (whether finished or
unfinished), together with all stock and other materials
comprising work in progress, at the Relevant Processing
Plants; and
(c) all stocks of consumable goods and products owned by CNIFP
that are located within the CNIFP forest estate, Murupara, KPP
and the Relevant Processing Plants or otherwise in the
possession or under the control of FCF;
"CONFIDENTIAL INFORMATION" means this deed and all information acquired
or received by a party ("Recipient") from another party ("Discloser")
under or in connection with this deed and includes without limitation:
(a) all know-how, technical information and data, including
formulations, specifications and applications;
(b) details of methodologies, manufacturing techniques or
manufacturing processes;
(c) all written or computerised data, designs, sketches,
photographs, plans, drawings, samples, articles, prototypes,
costings, studies, findings, inventions, developments and
forecasts;
(d) information in any form concerning the business and operations
of the Discloser;
(e) the financial position and state of affairs of the Discloser;
(f) all technical and market initiatives undertaken or to be
undertaken by the Discloser; and
(g) any information designated confidential by the Discloser,
but does not include information which:
Transition Deed 3
(h) the Recipient had knowledge of prior to the date of receipt of
such information (other than by reason of it having been
acquired directly or indirectly from a third party under an
obligation of confidence to that third party); or
(i) is or becomes general public knowledge through no fault of the
Recipient; or
(j) the parties agree in writing that such information is not or
will be deemed not to be confidential information;
"CROWN FORESTRY LICENCES" means the crown forestry licences specified
in schedule 6 hereto;
"DATA" means all existing data and other information (whether
Confidential Information or otherwise) relating to the Business,
howsoever generated, collected, derived and/or otherwise arising, and
whether by, for or through FCF, CNIFP, TMC or any other person but does
not include Intellectual Property of the FCF Group, or data or
information held by the FCF Group in its capacity as lender to, or
shareholder of, the partners of CNIFP or FCNZ;
"EXTENSION PERIOD" has the meaning given to that term in clause 8.2;
"FCF GROUP" means FCF, FCM, FCFL and FCL and their Affiliates;
"GANTRIES" means the gantries owned by any of the parties as described
in schedule 1;
"GST" means goods and services tax levied under the Goods and Services
Tax Xxx 0000;
"INFRASTRUCTURE" means the Roading Infrastructure, Radio Communications
Infrastructure and the parties' respective lookout towers referred to
in clause 4.4;
"INTELLECTUAL PROPERTY" means all statutory and other proprietary
rights in respect of know-how, layout designs, copyright works,
designs, inventions, plant varieties, trade marks and all other rights
as defined by Article 2 of the Convention of July 1967 establishing the
World Intellectual Property Organisation (including applications for
such rights) as may exist anywhere in the world;
"IT" means all computer and database systems, hardware, software,
programs, and other information technology (including all related user
documentation and support material);
"KPP" means the Kaingaroa Processing Plant;
"MANAGEMENT AGREEMENT" means the agreement dated 27 September 1996
between Xxxxxxxx Challenge Forests Limited (now FCF) as manager and the
partners of CNIFP and the memorandum of agreement dated 12 February
1999 between CITIC, Xxxxxxxx Challenge Limited (now FCL) and FCF, as
amended and varied from time to time;
"NZ$" means the lawful currency of New Zealand;
"OPERATING COSTS" has the same meaning given to that term in the
Management Agreement with the reference in that definition to the then
applicable management plan being, for the purposes of this deed, the
draft management plan as prepared by
Transition Deed 4
FCF and presented to CNIFP on 28 May 2002 ("Management Plan"), but for
the avoidance of doubt:
(a) except to the extent that any amount constitutes "SG&A"
contemplated in subclause (b) below, does not include any
amounts payable in respect of or in connection with the
termination of the Management Agreement; and
(b) includes costs currently classified as "Sales, General and
Administration" ("SG&A") and as determined by reference to the
SG&A calculation and allocation methodology, as set out in or
contemplated by the Management Plan, regardless of whether the
services by the relevant FCF employees, personnel or
contractors (for which SG&A is charged) are provided under the
Management Agreement or this deed;
"OPERATIONAL DATE" means 4.00 pm on 30 June 2003;
"OWNER PARTY" means, in relation to any item of Infrastructure, any
party to this deed which owns, or has exclusive rights to use, or is
entitled to permit a User Party to use, such item of Infrastructure;
"RADIO COMMUNICATIONS INFRASTRUCTURE" means the radio communications
system, together with related infrastructure, owned by any of the FCF
Group and used in the management of the Business as at the Transitional
Date;
"RELEVANT PROCESSING PLANTS" means:
(a) the sawmill and remanufacturing plant known as "Waipa Sawmill
and Remanufacturing Plant"; and
(b) the remanufacturing plant and storage facilities known as "Mt
Maunganui Remanufacturing Plant";
"ROADING INFRASTRUCTURE" means the Roads, Weighbridges and Gantries;
"ROADS" means arterial roads described in, and marked or highlighted on
the roading plans attached to, schedule 1;
"RPP HANDOVER DATE" has the meaning given to that term in clause 8.2;
"SETTLEMENT AGREEMENT" means the settlement agreement entered or to be
entered into contemporaneously with this deed by the parties to this
deed (other than TMC, RSW and RSM) together with Kaingaroa Holdings
Limited, Bank of New Zealand and CNI Forest Nominees Limited;
"TASMAN CONTRACTS" has the meaning given to that term in the Management
Agreement;
"TRANSITIONAL DATE" means the date of execution of this deed;
"TRANSITIONAL PERIOD" means the period commencing on the Transitional
Date and ending on the Operational Date;
"US$" means the lawful currency of the United States of America;
"USER PARTY" means, in relation to any item of Infrastructure, any
party to this deed which does not own or have a right to use such item
of Infrastructure but is granted rights to use such item of
Infrastructure by an Owner Party in accordance with this
Transition Deed 5
deed, including, where such User Party is CNIFP, any person authorised
by CNIFP to use such Infrastructure in connection with the management
of the Business and where such party is a member of the FCF Group, any
person authorised by FCF to use such Infrastructure in connection with
the management of the FCF Group's own forest estate; and
"WEIGHBRIDGES" means the weighbridges and associated buildings owned by
any of the parties, as described in schedule 1.
1.2 In this deed, unless the context otherwise requires:
(a) words denoting the singular shall include the plural and vice
versa;
(b) one gender shall include the other genders;
(c) words denoting persons shall include any individual,
principal, corporation, partnership, joint venture,
association, organisation, trust, state, agency of a state,
municipal authority, government or any statutory body in each
case whether or not having separate legal identity;
(d) any covenant or agreement on the part of two or more persons
shall bind those persons jointly and severally;
(e) reference to anything of a particular nature following upon a
general statement shall not in any way derogate from or limit
the application of the general statement unless the particular
context requires such derogation or limitation;
(f) any reference to "month" or "monthly" shall mean respectively
calendar month or calendar monthly;
(g) references to sections, clauses and schedules are references
to sections, clauses and schedules in this deed;
(h) the section headings and clause headings have been inserted
for convenience and are a guide to the provisions of this deed
and shall not form part of this deed or affect its
interpretation in any way;
(i) references to this deed or any document or statement (however
described) shall include references to that document as
modified, novated, supplemented, varied or replaced from time
to time;
(j) reference to any statute, regulation, ordinance or bylaw shall
be deemed to extend to all statutes, regulations, ordinances
or bylaws amending, consolidating or replacing the same;
(k) where any consent or approval is required pursuant to any
provision of this deed such consent or approval shall be
required for each separate occasion notwithstanding any prior
consent or approval obtained for the like purpose on any prior
occasion; and
(l) "dollars" or "$" means (unless otherwise stated) the lawful
currency of New Zealand.
1.3 The parties acknowledge and agree that:
(a) the process, timetable and associated plans for the transition
of the management of the Business to the CNIFP and/or TMC
("Transition Process") has been established by the CNIFP
including the setting of the Operational
Transition Deed 6
Date, the setting of the RPP Handover Date, the length of the
Transitional Period, and the length of the Extension Period
and the nature and scope of the activities to be undertaken by
the FCF Group under this deed as part of the Transition
Process. FCF was, at a time prior to this deed, aware of the
intention to change the manager of the Business but it was,
and remains, unaware of the full details of the Transition
Process other than any part thereof which is set out in this
deed or otherwise disclosed by CNIFP, TMC or any of its
Affiliates to any member of the FCF Group as part of the
performance by the parties of their obligations under this
deed;
(b) CNIFP, the Receivers, RSW, RSM and TMC accept that they have
not sought any advice from any member of the FCF Group on the
creation of the Transition Process. Correspondingly, the FCF
Group has no responsibility or liability for the creation of
the Transition Process or its implementation, except to the
extent that the implementation of any part thereof constitutes
an obligation of any member of the FCF Group under this deed
and the FCF Group gives no assurance, representation or
warranty that the Transition Process will be able to completed
by the Operational Date or, in relation to the transfer of the
management of the Relevant Processing Plants, the RPP Handover
Date or that it will result in the effective transfer of the
management of the Business from FCF to CNIFP or TMC by the
Operational Date or, in relation to the transfer of the
management of the Relevant Processing Plants, the RPP Handover
Date; and
(c) in anticipation of the termination of the Management
Agreement, FCF will commence winding down its forest and
processing plant management capability effective the
Operational Date (or the RPP Handover Date in relation to
management of the Relevant Processing Plants) and, partly as a
result of this position, except to the extent specifically set
out in this deed or as the parties may separately agree in
writing, the FCF Group will not be required to provide
management services or transitional services in respect of the
Business following the Operational Date or, in respect of the
management of the Relevant Processing Plants, following the
RPP Handover Date.
1.4 FCF and CNIFP acknowledge and agree that:
(a) FCF shall, during the Transitional Period, use all reasonable
endeavours to fully perform all its obligations under the
Management Agreement to the same standard and level of service
required of FCF under the Management Agreement;
(b) to the extent that, after using all reasonable endeavours, FCF
is unable to fully perform any of its obligations under the
Management Agreement to the same standard or level of service
required of FCF under the Management Agreement (whether
arising as a result of FCF employees previously employed in
providing services associated with the management of the
Business having terminated their employment with FCF and
accepted offers of employment with TMC and/or CNIFP (where
such termination of employment with FCF has had a direct
material adverse effect on FCF's ability to fully perform such
obligation to such standard or level of service), or
otherwise):
(i) FCF shall in full consultation with CNIFP provide
reasonable cooperation to minimise any adverse effect
such non performance or reduced standard or level of
service may have on the Business; and
(ii) provided that FCF has complied with subclause (i)
above, FCF shall not be liable for any failure to
fully perform any of its obligations under the
Transition Deed 7
Management Agreement to the same standard and level
of service required of FCF under the Management
Agreement.
1.5 The parties acknowledge and agree that, where a member of the FCF Group
is required to use its "reasonable endeavours" to meet an obligation
under this deed or to comply with a reasonable request of CNIFP made
under this deed or to reasonably co-operate under this deed, in
determining what is reasonable the following factors are to be taken
into account:
(a) that the member of the FCF Group is not required to hire
additional staff or third party contractors in order to meet
that obligation or to purchase additional assets (other than
of a minimal nature) in order to meet that obligation;
(b) that the FCF Group's ability to meet that obligation may be
adversely affected as a result of FCF employees previously
employed in providing services associated with the management
of the Business or in the provision of services under this
deed having terminated their employment with FCF and accepted
offers of employment with TMC and/or CNIFP and the FCF Group
shall be under no obligation to replace such staff in order to
meet that obligation;
(c) that, effective no earlier than the Operational Date (or the
RPP Handover Date in relation to staff involved in the
management of the Relevant Processing Plants), FCF is
proposing to downsize its forest and processing plant
management capability including making redundant staff
previously involved in the management of the Business or the
provision of services under this deed that are to be performed
in the period up to the Operational Date or the RPP Handover
Date in relation to the Relevant Processing Plants; and
(d) that the availability of any employee of the relevant member
of the FCF Group to meet such obligation, comply with such
request or provide such co-operation is subject to that
employee performing, as a priority, that employee's tasks and
functions in respect of the day to day operation and
management of the Business and the FCF Group's forestry
business provided that such priority may be altered where FCF
and CNIFP have agreed, acting reasonably, on such alteration
of priority),
and to the extent that, after using all reasonable endeavours, such
party is not, or will not be, able to fully perform any of such
obligations, such party shall as soon as it becomes aware of the same
notify CNIFP accordingly and in full consultation with CNIFP provide
reasonable cooperation to minimise any adverse effect such inability to
fully perform such obligation may have on the Business or the
Transition Process (as that term is defined in clause 1.3(a) above),
such reasonable co-operation to include such party providing CNIFP, its
agents and/or subcontractors with reasonable access to the business
premises of such party, all relevant records and information of such
party (to the extent it is required to do so under this deed), and to
use all reasonable endeavours to make available all things (to the
extent it is required to do so under this deed) in each case as
reasonably requested by CNIFP, its agents and/or subcontractors for the
purpose of minimising any adverse effects such inability to perform
such obligation may have on the Business or the Transition Process (as
that term is defined in clause 1.3(a) above), and provided that such
party has complied with this clause 1.5, such party shall not be liable
for any failure to fully perform such obligation in the manner required
under this deed.
2. ROADING INFRASTRUCTURE
2.1 During the period from the Operational Date until the earlier of the
date that the Infrastructure Sharing Deed (as defined in clause 2.4) is
executed by all parties to that deed and becomes operational and the
expiry of a notice period relating to any
Transition Deed 8
relevant termination notice given by an Owner Party under clause 2.5 or
subclause (a)(iii) below:
(a) to the extent they are lawfully able to do so, all Owner
Parties shall grant each User Party rights of access to Roads
passing through their respective forests on the basis that:
(i) the User Party shall be entitled to use the Roads of
the Owner Party for the purpose of managing and
safeguarding the User Party's forest business and
forest assets and for the carriage of that User
Party's goods, including wood, chips and lumber;
(ii) there will be no charge for such use; and
(iii) any Owner Party may, following the Anniversary Date,
terminate all rights of access to all its Roads under
this clause 2.1 by giving not less than six months'
written notice of termination to each relevant User
Party affected by such termination in which case
clause 2.6 shall apply;
(b) the Owner Party shall be entitled to on charge to the User
Party on a cost recovery basis by reference to actual Road
usage, such tolls, levies, fees, charges or calls payable by
the Owner Party to third parties in respect of the relevant
Roads, whether under any Crown Forestry Licence, underlying
land ownership right, or otherwise, reasonably incurred by the
Owner Party in respect of the continued use of the Roads,
based on the extent of actual Road usage by the User Party as
a proportion of the actual Road usage by all users of the
Roads (including the Owner Party);
(c) each Owner Party shall be liable for the maintenance of all
its Roads to a reasonable standard and condition except where
damage (other than fair wear and tear) shall have been caused
to any Road of an Owner Party by a User Party in which case
the User Party alone shall be responsible for the repair and
reinstatement of such Road to the same standard and condition
that such Road was in at the time immediately prior to such
damage and all costs incidental thereto to the reasonable
satisfaction of the Owner Party, including as to timing. If
the User Party fails to repair the damaged Road within a
reasonable time, the Owner Party may itself repair that damage
and the User Party will indemnify the Owner Party against all
reasonable costs, expenses, charges and losses incurred in
relation to such repair (to the extent of repairing such
damaged Road to the same standard and condition required of
the User Party under this clause);
(d) each Owner Party acknowledges and agrees that, other than as
referred to in (c) above, they will be responsible for any
cost of a capital expenditure nature, whether in relation to
the reconstruction or replacement of any part or all of the
Roads or any major refurbishment or upgrading of any part or
all of the Roads and no contribution shall be required from
any User Party;
(e) the User Party acknowledges and agrees that, subject to clause
19, it has no entitlement to, and shall not, grant to any
third party (not including any agent or subcontractor) any
right or entitlement to use the Roads of the Owner Party which
is derivative of that User Party's right and entitlement to
use such Roads under this deed or the Infrastructure Sharing
Deed (as defined in clause 2.4) (as the case may be). The
Owner Parties acknowledge and agree to cooperate and work
together in good faith with a view to agreeing the reasonable
usage of their respective Roads by third parties;
Transition Deed 9
(f) each Owner Party shall make available to the User Party
without charge such bypass access over its other roads and
access ways as is necessary from time to time to enable the
User Party to retain the benefit of the use of the Roads in
the event that access over or the use of any part or all of
such Roads is impeded or restricted for any reason whatsoever;
(g) each User Party shall when using the Roads comply with the
Owner Party's reasonable road user rules including all
reasonable health and safety directions and restrictions, and
will procure all its agents and subcontractors do the same.
2.2 During the period from the Operational Date until the earlier of the
date that the Infrastructure Sharing Deed (as defined in clause 2.4) is
executed by all parties to that deed and becomes operational and the
expiry of the notice period relating to any relevant termination notice
given by an Owner Party under clause 2.5:
(a) to the extent they are lawfully able to do so, all Owner
Parties shall grant each User Party rights to use Weighbridges
provided that:
(i) the Owner Party of a Weighbridge shall provide
weighing services on such Weighbridge, ensure such
Weighbridge is accessible for weighing services to
User Parties during the usual hours of operation for
that Weighbridge (being the same hours as that
Weighbridge was operating during the three month
period immediately preceding the Transition Date) and
shall maintain such Weighbridge to a reasonable
standard including undertaking regular assizing of
such Weighbridge;
(ii) the Owner Party of a Weighbridge shall, after
consultation with the User Party of any such
Weighbridge and after obtaining such User Party's
consent, (such consent not to be unreasonably
withheld), have the right to relocate or close any
such Weighbridge; and
(iii) the Owner Party of a Weighbridge shall use its
reasonable endeavours to ensure that the results of
weigh-ins are in an industry standard format so that
all User Parties are reasonably able to
electronically download such results of weigh-ins of
that Weighbridge;
(b) the User Party of a Weighbridge shall pay a reasonable fee to
the Owner Party for the use of such Weighbridge, such fee to
be reasonably assessed on a cost recovery basis and calculated
by reference to the actual wood volume transported by the User
Party over the relevant Weighbridge. The Owner Party shall use
its reasonable endeavours to keep all costs associated with
such Weighbridge as low as possible;
(c) each Owner Party shall be liable for the maintenance and
operation of all its Weighbridges, except where damage (other
than fair wear and tear) shall have been caused to any
Weighbridge of an Owner Party by a User Party, in which case
the User Party alone shall be responsible for the repair of
such Weighbridge and all costs incidental thereto to the
reasonable satisfaction of the Owner Party including as to
timing. If the User Party fails to repair the damaged
Weighbridge within a reasonable time, the Owner Party may
itself repair that damage and the User Party will indemnify
the Owner Party against all reasonable costs, expenses,
charges and losses incurred in relation to such repair.
2.3 During the period from the Operational Date until the earlier of the
date that the Infrastructure Sharing Deed (as defined in clause 2.4) is
executed by all parties to that
Transition Deed 10
deed and becomes operational and the expiry of the notice period
relating to any relevant termination notice given by an Owner party
under clause 2.5:
(a) to the extent they are lawfully able to do so, all Owner
Parties shall grant each User Party rights to use Gantries
provided that:
(i) the Owner Party of a Gantry shall provide services on
such Gantry, ensure such Gantry is accessible to User
Parties 24 hours a day, seven days a week and shall
maintain such Gantry to a reasonable standard; and
(ii) the Owner Party of a Gantry shall, after consultation
with the User Party of any such Gantry and after
obtaining such User Party's consent, (such consent
not to be unreasonably withheld), have the right to
relocate or close any such Gantry;
(b) the User Party of a Gantry shall pay a reasonable fee to the
Owner Party for the use of such Gantry, such fee to be
reasonably assessed on a cost recovery basis and calculated by
reference to the usage by the User Party of the relevant
Gantry. The Owner Party shall use its reasonable endeavours to
keep all costs associated with such Gantry as low as possible.
The Owner Party and User Party agree to offset fees payable to
each other in respect of the use of Gantries and Weighbridges
such that a net payment only is required to be made;
(c) each Owner Party shall be liable for the maintenance and
operation of all its Gantries, except where damage (other than
fair wear and tear) shall have been caused to any Gantry of an
Owner Party by a User Party, in which case the User Party
alone shall be responsible for the repair of such Gantry and
all costs incidental thereto to the reasonable satisfaction of
the Owner Party including as to timing. If the User Party
fails to repair the damaged Gantry within a reasonable time,
the Owner Party may itself repair that damage and the User
Party will indemnify the Owner Party against all reasonable
costs, expenses, charges and losses incurred in relation to
such repair; and
(d) the parties acknowledge that, as at the Operational Date, the
Gantries will be operated and maintained under contract by
Forest Distribution Limited for the Owner Parties.
2.4 The parties acknowledge and agree that, as soon as practicable and in
any event by no later than the Anniversary Date, the relevant members
of the FCF Group and CNIFP shall negotiate in good faith with a view to
entering into a roading, weighbridge and gantries infrastructure usage
sharing deed ("INFRASTRUCTURE SHARING DEED") to provide for the ongoing
sharing of usage of Roading Infrastructure as between the parties
including the parties' access to each other's lookout towers as
contemplated in clause 4.4 and FCF's access through CNIFP's Murupara
log yard as contemplated in clause 11.1. On execution of the
Infrastructure Sharing Deed, the provisions of the Infrastructure
Sharing Deed shall supersede and replace clauses 2.1, 2.2, 2.3, 4.4
and/or 11.1 and all other parts of this deed which relate to Roading
Infrastructure.
2.5 Notwithstanding the good faith efforts of the parties under clause 2.4
if the relevant members of the FCF Group and CNIFP have not entered
into the Infrastructure Sharing Deed (as defined in clause 2.4) prior
to or on the Anniversary Date, each Owner Party under clauses 2.1, 2.2,
2.3, 4.4 and/or 11.1 shall be entitled to terminate the arrangements
set out in clauses 2.1, 2.2, 2.3, 4.4 and/or 11.1 which relate to the
Infrastructure by giving not less than six months' written notice of
termination to each relevant User Party affected by such termination in
which case clause 2.6 will apply.
Transition Deed 11
2.6 The parties acknowledge and agree that for so long as clauses 2.1, 2.2
and 2.3 and all other parts of this deed which relate to Roading
Infrastructure are in effect the arrangements affecting roading,
weighbridges, gantries or similar infrastructure which are set out in
the Tasman Contracts shall be suspended and shall not bind the parties
to the Tasman Contracts whilst so suspended.
3. RADIO COMMUNICATIONS
3.1 From the Transitional Date, FCF will license or otherwise make
available to CNIFP the following radio frequencies:
(a) Pukehina Lookout: X000 (Xx00)
Xxxxxxx Xx: X000 (Xx00)
Xxxxxxx Lookout: E161 (Ch32)
Moerangi: E163 (Ch33)
Galatea Lookout: E165 (Ch34)
Wairango: E145 (Ch37)
(identified by E number identifiers assigned by the Ministry
of Economic Development in use at such site);
(b) such shared frequencies and simplex channels where access is
reasonably required for accident, emergency, transport
co-ordination and dispatch purposes (and in the case of
simplex channels where access is also reasonably required for
the management and operations of the Business),
(the "FREQUENCIES") and the use of FCF's radio communication network
(which shall for the purposes of this clause 3 but subject to clause
3.3, include the underlying Radio Communications Infrastructure) in the
Central North Island for use solely in the management or operations of
CNIFP's forest estate. The parties agree that the dedicated frequencies
comprising the Frequencies (as contemplated in subclause (a) above) are
licensed to CNIFP on an exclusive basis and shall not be used by FCF
and/or authorised by FCF for use by any other person during the term of
this licence.
3.2 FCF and CNIFP will enter into a licence and service level agreement in
respect of the use of the Frequencies and FCF's radio communication
network in the Central North Island by CNIFP ("LICENCE AGREEMENT"), the
Licence Agreement to be on the following terms:
(a) to be for a perpetual term terminable by either party on 12
months' notice given at any time after the Anniversary Date;
(b) to provide for an annual licence fee based on appropriate
market rates in respect of comparable licence arrangements,
the licence fee for the first 3 month period to be $150,000
plus GST and $10,000 per month plus GST for each month
thereafter. The licence fee shall be renegotiated at each
anniversary of the execution of the Licence Agreement for the
following 12 month period. If no agreement is reached on the
new licence fee to apply to any 12 month period, then the fee
shall be determined by a person mutually agreed by CNIFP and
FCF or, failing agreement, nominated by the chairperson at the
relevant time of the Auckland District Law Society, such
person to act as an expert, and not an arbitrator, and whose
decision shall be final and binding on the parties. The costs
of such expert determination shall be shared and paid equally
by FCF and CNIFP;
(c) the licence fee is to be payable quarterly in advance with the
first payment of $150,000 plus GST being due on the
Operational Date;
Transition Deed 12
(d) the Frequencies and FCF's radio communication network in the
Central North Island are to be used only by the CNIFP (and its
agents and/or contractors) for management of the CNIFP forest
estate;
(e) the dedicated frequencies comprising the Frequencies (as
contemplated by clause 3.1(a)) are licensed to CNIFP on an
exclusive basis and shall not be used by FCF and/or authorised
by FCF for use by any other person during the term of the
Licence Agreement;
(f) FCF shall not be liable to CNIFP for any loss of profits,
indirect, special or consequential losses, damages,
liabilities, costs and/or expenses sustained, suffered and/or
incurred by CNIFP as a result of any breach by FCF of the
Licence Agreement;
(g) CNIFP shall be entitled to assign, novate or otherwise
transfer all of its rights and obligations arising under or in
respect of the Licence Agreement to any purchaser of all or
substantially all of the CNIFP forest estate;
(h) the Licence Agreement is to otherwise contain usual provisions
contained in similar licence and service level agreements and
if the parties are unable to agree on any provisions of the
Licence Agreement within a period of 10 Business Days of the
dispute arising, the dispute shall be determined by a person
mutually agreed by CNIFP and FCF or, failing agreement,
nominated by the chairperson at the relevant time of the
Auckland District Law Society, such person to act as an
expert, and not an arbitrator, and whose decision shall be
final and binding on the parties. The costs of such expert
determination shall be shared and paid equally by CNIFP and
FCF.
3.3 CNIFP acknowledges to FCF that the Licence Agreement shall only relate
to the use of the Frequencies and FCF's radio communication network in
the Central North Island, and FCF shall not provide any other
infrastructure (such as portable transmitters and receivers comprising
radio handsets (other than those installed or contained in surplus FCF
leased vehicles assigned to or used by CNIFP under clause 6)) which may
be required by CNIFP to operate the radio communications system.
3.4 CNIFP grants to FCF a licence for the continued access to, and use,
maintenance and operation of, the fire control centre, generator and
related equipment owned by FCF ("Control Centre"), as located in its
current position at the Waiotapu premises, for a period of three months
commencing on the Operational Date on the following terms and
conditions:
(a) FCF shall have unlimited access to the Control Centre at any
time in the event of an emergency requiring FCF personnel to
be present at the Control Centre. At all other times and for
all other purposes (including regular maintenance of the
Control Centre), FCF shall be entitled to reasonable access to
the Control Centre during normal business hours;
(b) CNIFP shall not be entitled to charge FCF any licence fee in
relation to the licence contemplated in this clause 3.4;
(c) notwithstanding that FCF has a licence for the continued
access to, and use, maintenance and operation of, the Control
Centre in the manner and during the licence period
contemplated in this clause 3.4, and has operational control
of the Control Centre during such licence period, CNIFP shall
be entitled to utilise the Control Centre on a "no charge"
basis at any time during such licence period as part of its
management or operations of the Business, subject to CNIFP
complying with the reasonable directions of FCF relating to
the use of the Control Centre; and
Transition Deed 13
(d) at the expiry of the licence period set out in this clause,
FCF will transfer ownership of the Control Centre to CNIFP for
the sum of $1. CNIFP acknowledges that FCF gives no warranty
as to the fitness for purpose of the Control Centre.
3.5 The parties acknowledge and agree that, as soon as practicable and in
any case promptly after the date that the Licence Agreement is executed
by the parties to it, they shall enter into good faith discussions with
a view to establishing a special purpose joint venture entity ("RCJV")
as the owner and operator of the Radio Communications Infrastructure
and its functions, such RCJV to be established on the following
principles:
(a) each Owner Party shall, to the fullest extent it is lawfully
able to do so, transfer, assign and/or license to, or
otherwise make available for use by, the RCJV all Radio
Communications Infrastructure and radio frequencies which it
owns, or has rights in relation to, at fair and equitable
transfer costs to be agreed as between the parties to the
RCJV;
(b) the sole purpose of the RCJV is to own, operate, maintain and,
if necessary, replace and upgrade, for the benefit of all RCJV
participants, the Radio Communications Infrastructure and
radio frequencies;
(c) the RCJV will provide radio communications capability,
functions and services to the RCJV participants on a cost
recovery basis, which will be apportioned pro rata by
reference to the size of each RCJV participant's aggregate
forest estate in the Central North Island which benefits from
the provision of such capability, functions and services; and
(d) the RCJV participants shall jointly control the management and
operation of the RCJV.
3.6 If, notwithstanding the good faith efforts of the parties under clause
3.5, the RCJV is not established prior to or on the Anniversary Date,
the FCF Group or CNIFP shall be entitled, upon either of them giving
written notice to the other, to:
(a) discontinue all further discussions regarding the
establishment of the RCJV; and
(b) subject to clauses 3.1 and 3.2, deal with the radio
communications infrastructure which it owns, or has rights in
relation to, in such manner as it deems fit, and the
provisions of clause 3.5 shall be at an end.
4. FIRE PROTECTION
4.1 CNIFP shall have the right to purchase certain surplus fire equipment
from FCF ("SURPLUS FIRE EQUIPMENT") on the following terms:
(a) within 5 Business Days of the Transitional Date, FCF will give
CNIFP a list of the Surplus Fire Equipment and its assessment
of the fair value for each item of Surplus Fire Equipment;
(b) FCF shall allow CNIFP reasonable opportunity (at such times as
are mutually convenient to both parties) to assess the
condition of the Surplus Fire Equipment during the period of
10 Business Days from the date that FCF gives CNIFP the list
of the Surplus Fire Equipment under subclause (a) above. CNIFP
acknowledges that FCF gives no warranty as to the fitness for
purpose of such Surplus Fire Equipment;
Transition Deed 14
(c) within 2 Business Days of the expiry of the 10 Business Days
period specified in subclause (b) above, CNIFP shall notify
FCF in writing of all items of Surplus Fire Equipment which
CNIFP wishes to purchase, the relevant purchase price being
the value for each relevant item of Surplus Fire Equipment set
out in the list provided under subclause 4.1(a) (or such other
purchase price as the parties may otherwise agree); and
(d) completion of any sale of the Surplus Fire Equipment shall
occur on the date which is four months after the Operational
Date. CNIFP shall make payment of the purchase price in full
on that date, and FCF shall transfer free and clear title to
the relevant Surplus Fire Equipment purchased by CNIFP under
this clause upon payment of the purchase price in full by
CNIFP.
4.2 FCF and CNIFP will as soon as practicable after the Transitional Date
enter into a data provision and service level agreement in respect of
the supply by FCF to CNIFP of data from FCF's weather station network
which covers CNIFP's forests ("DATA SUPPLY AGREEMENT") as from the
Operational Date, the Data Supply Agreement to be on the following
terms:
(a) to be for a perpetual term terminable by either party on 12
months' notice;
(b) to provide for an annual licence fee based on appropriate
market rates for the provision of a comparable service, the
licence fee for the first 12 month period to be $2,000 per
month plus GST. The licence fee shall be renegotiated at each
anniversary of the execution of the Data Supply Agreement for
the following 12 month period. If no agreement is reached on
the new licence fee to apply to any 12 month period, then the
fee shall be determined by a person mutually agreed by CNIFP
and FCF or, failing agreement, nominated by the chairperson at
the relevant time of the Auckland District Law Society, such
person to act as an expert, and not an arbitrator, and whose
decision shall be final and binding on the parties. The costs
of such expert determination shall be shared and paid equally
by FCF and CNIFP;
(c) the licence fee is to be payable quarterly in advance with the
first payment being due on the Operational Date; and
(d) the Data Supply Agreement to otherwise contain usual
provisions contained in similar data supply and service level
agreements and if the parties are unable to agree on any
provisions of the Data Supply Agreement within a period of 10
Business Days of the dispute arising, the dispute shall be
determined by a person mutually agreed by CNIFP and FCF or,
failing agreement, nominated by the chairperson at the
relevant time of the Auckland District Law Society who shall
act as an expert, not an arbitrator, and whose decision shall
be final and binding on the parties. The costs of such expert
determination shall be shared and paid equally by FCF and
CNIFP.
4.3 During the period of four months from the Operational Date, FCF will
provide to CNIFP, in respect of CNIFP's forest estate, the same level
of fire protection services that FCF is currently providing to CNIFP
under the Management Agreement on the following basis:
(a) FCF shall be entitled to use at no charge all of CNIFP's fire
protection infrastructure and equipment as part of an
integrated fire protection service for the forest estates of
both CNIFP and FCF;
(b) CNIFP will pay to FCF a fee of $100,000 (plus GST) for the
provision of such fire protection services for the relevant
four month period and reimburse FCF
Transition Deed 15
for all direct third party costs and expenses incurred by FCF
in providing such fire protection services during that period;
(c) FCF shall bear no liability or responsibility for any costs,
losses, expenses or any other amounts incurred by CNIFP
directly or indirectly as a consequence of, or related to, any
fire which occurs in the CNIFP forest estate whilst FCF is
providing these fire protection services and FCF disclaims all
such liability or responsibility to the maximum extent
permitted by law; and
(d) FCF shall fully discuss with CNIFP its fire protection plans
for the CNIFP forest estate, and will use its reasonable
endeavours to accommodate any reasonable request by CNIFP to
vary or modify any aspect of such fire protection plan and its
implementation.
4.4 During the period from the Operational Date until the earlier of the
date that the Infrastructure Sharing Deed (as defined in clause 2.4) is
executed by all parties to that deed and becomes operational and the
expiry of the notice period relating to any relevant termination notice
given by CNIFP or FCF under subclause 2.1(a)(iii) or clause 2.5 (each
in its capacity as an Owner Party in respect of its respective lookout
towers), each of CNIFP and FCF (as an Owner Party) agrees to grant to
the other party (as a User Party) access to all its lookout towers
located within its respective forest estates in the Central North
Island on the following basis:
(a) each User Party shall, when accessing an Owner Party's lookout
towers, comply with the Owner Party's reasonable rules
relating to such lookout towers, including all health and
safety restrictions and requirements, and will procure all its
agents and subcontractors to do the same;
(b) each Owner Party shall allow the User Party reasonable access
over those portions of the Owner Party's forest estate
necessary to provide access to the relevant lookout towers;
(c) the Owner Party shall not be responsible for xxxxxxx any
lookout towers for the benefit of the User Party; and
(d) there shall be no charge to the User Party for such access.
5. WAIOTAPU PREMISES
5.1 FCF acknowledges and agrees that, subject to clause 5.3 and in relation
to staff required to stay on-site or access the site under clause 3.4,
it will vacate ("VACATION"), and give vacant possession to, the
premises owned by CNIFP at Waiotapu ("PREMISES") by no later than the
Operational Date.
5.2 The parties acknowledge and agree that, prior to Vacation, CNIFP,
and/or any person authorised by it, shall at all times be entitled to
full access to the Premises for the purposes of assessing the condition
of the Premises and its usage options, and preparing the Premises for
eventual occupation by CNIFP, and/or other persons authorised by it,
provided that (subject to clause 5.3) such access shall not
unreasonably interfere with FCF's continued use of the Premises until
Vacation and reasonable prior notice is given to FCF.
5.3 Notwithstanding anything in clause 5.2, FCF agrees to relinquish the
use of that part of the Premises occupied by Central North Island
Forest Managers Limited (CNIFML) as at the Transitional Date ("Interim
Space") as soon as reasonably possible but in any case by no later than
the date which is one month after the Transitional Date to enable
CNIFP, and/or any person authorised by it, to occupy and use the
Interim Space. FCF acknowledges and agrees that (subject to clause 5.5)
all fixtures, fittings
Transition Deed 16
and office equipment contained within the Interim Space, including all
telecommunications cabling and lines and other communication
infrastructure (except the links to the FCF Group's network) within the
Interim Space utilised by its current occupants, shall not be removed
but remain in place for use by CNIFP, and/or any person authorised by
it, upon FCF relinquishing the use of the Interim Space in the manner
contemplated in this clause.
5.4 FCF acknowledges, on behalf of itself and all occupants of the
Premises, that (subject to clause 5.5) all fixtures, fittings and
office equipment within the Premises (including all wiring,
telecommunication and data cabling and lines but excluding the links,
if any, to the FCF Group's network) are the sole property of CNIFP and
shall, upon Vacation, remain within the Premises.
5.5 CNIFP acknowledges that:
(a) the fixtures, fittings and equipment contained within the
Interim Space owned by CNIFML may be removed by CNIFML from
the Interim Space, provided that such removal occurs by no
later than the date of vacation of the Interim Space by
CNIFML; and
(b) the PABX system owned by FCF contained within the Premises may
be removed by FCF, provided that such removal occurs by no
later than the Operational Date.
6. VEHICLE LEASES
6.1 The parties acknowledge and agree that some of FCF's leased vehicles as
set out in schedule 3 will become surplus to FCF's requirements by
reason of the transition of the management of the Business from FCF to
CNIFP and/or TMC. Accordingly, as any leased vehicle described in
schedule 3 becomes surplus to FCF's requirements, FCF will notify CNIFP
of the same as soon as practicable thereafter. CNIFP shall, within five
Business Days of receiving such notice from FCF, notify FCF as to
whether it wishes to use such surplus leased vehicle.
6.2 Upon receiving notice from CNIFP under clause 6.1 that it wishes to use
a surplus leased vehicle, FCF shall, as soon as practicable, assign to,
or otherwise procure for continued usage by, CNIFP the leased vehicles
specified in the notice from CNIFP under clause 6.1 to the extent FCF
is legally able to do so. From the relevant date of assignment of (or,
if incapable of assignment, from the date of first usage of) such
vehicles by CNIFP, CNIFP shall be responsible for all costs and
expenses incurred relating to such vehicles (including all leasing
costs and the costs of transfer) provided that FCF shall remain liable
for all costs relating to such vehicles incurred prior to the relevant
date of assignment or first usage by CNIFP (as the case may be).
7. BUSINESS AND OTHER ASSETS
7.1 FCF shall transfer to CNIFP free and clear title (but without warranty
as to fitness for purpose) to all surplus FCF business assets
comprising computer equipment set out in the surplus FCF business asset
register, attached as schedule 2 on or prior to the Operational Date.
CNIFP and FCF shall cooperate and work together in good faith with a
view to facilitate the passing of control and possession of all such
surplus FCF business assets from FCF to CNIFP by no later than the
Operational Date.
7.2 CNIFP shall, at any time within 2 weeks from the Transitional Date, be
entitled to commence an asset verification exercise in respect of the
items listed in the Business assets register attached as schedule 4 and
ownership of the Weighbridges and the Gantries. FCF and CNIFP shall
cooperate and work together in good faith with a view to conducting
this asset verification exercise with a view to identifying the
Business
Transition Deed 17
assets to be transferred out of the control and/or possession of FCF to
CNIFP on the Operational Date and ownership of the Weighbridges and the
Gantries. CNIFP acknowledges that FCF gives no warranty as to the
accuracy and completeness of the Business asset register attached as
schedule 4.
8. CNIFP PLANTS
8.1 The parties acknowledge that, as at the Transitional Date, KPP is owned
by CNIFP but is managed and operated by FCF on behalf of CNIFP. In
order to facilitate the orderly transition of the management and
operations of KPP from FCF to CNIFP and completion of such orderly
transition by the Operational Date:
(a) CNIFP shall at all times be entitled to full access to KPP
prior to the Operational Date in order to assess the operating
condition of KPP and options for ongoing operations of KPP
subsequent to the Operational Date, provided that such access
shall not unreasonably interfere with FCF's ongoing management
of KPP until the Operational Date and reasonable prior notice
is given to FCF;
(b) FCF shall use its reasonable endeavours to provide or make
available to CNIFP within 5 Business Days after the
Transitional Date, full details regarding KPP which are held
by, or under the control of, FCF (including all KPP staff
details (including all employment contracts and other
employment terms), operational reports such as health and
safety reports, operation manuals, maintenance records,
production and financial reports, records, and spreadsheet and
database printouts, and any other relevant information
regarding KPP (including any CNIFP Information relating to
KPP));
(c) FCF shall use its reasonable endeavours to take all action
reasonably requested by CNIFP to assist it with the migration
of staff at KPP from FCF to CNIFP as at the Operational Date.
CNIFP and FCF shall cooperate and consult with each other in
relation to all dealings with staff at KPP, and all
communication to such staff, insofar as such communication
relates to any migration of staff at KPP from FCF to CNIFP
and/or any of the obligations of any member of the FCF Group
under this deed, shall be agreed (acting reasonably) and/or
issued jointly by CNIFP and FCF. CNIFP will indemnify the FCF
Group against all redundancy compensation payable under the
relevant terms of employment of staff at KPP that is incurred
by the FCF Group in connection with any claims or demands by a
staff member at KPP for redundancy compensation resulting from
the termination of their employment with the FCF Group,
whether such staff member accepts a job offer from CNIFP or
otherwise;
(d) FCF acknowledges and agrees that all CNIFP IT, CNIFP
Information and Data (including all operational manuals and
procedures relating to the operation of KPP) relating to KPP
is owned by CNIFP and shall remain with or at KPP (as the case
may be) except to the extent that:
(i) they contain Confidential Information or Intellectual
Property of the FCF Group in which case CNIFP shall
not own such Confidential Information or Intellectual
Property but rather FCF shall grant to CNIFP a
perpetual, royalty free licence to use the same
solely for the operation of KPP, such licence to be
non-transferable (including by way of sublicence)
except to a purchaser of all or substantially all of
CNIFP's forest estate; or
(ii) ownership of such CNIFP IT, CNIFP Information or Data
may be subject to any third party rights in respect
of it; and
Transition Deed 18
(e) the FCF Group will use its reasonable endeavours to do all
things reasonably requested by CNIFP to ensure the smooth and
efficient transfer of KPP and its operations from FCF to CNIFP
on the Operational Date.
8.2 The parties acknowledge that, as at the Transitional Date, the Relevant
Processing Plants are owned by CNIFP but are managed and operated by
FCF on behalf of CNIFP. In order to facilitate the orderly transition
of the management and operations of the Relevant Processing Plants from
FCF to CNIFP and completion of such orderly transition on 4.00 pm on 30
September 2003 ("RPP HANDOVER DATE"):
(a) CNIFP shall at all times be entitled to full access to the
Relevant Processing Plants in order to assess the operating
condition of the Relevant Processing Plants and options for
ongoing operations of the Relevant Processing Plants
subsequent to the RPP Handover Date, provided that such access
shall not unreasonably interfere with FCF's ongoing management
of the Relevant Processing Plants until the RPP Handover Date
and (in respect of the Transitional Period only) reasonable
prior notice is given to FCF;
(b) FCF shall use its reasonable endeavours to provide or make
available to CNIFP within 10 Business Days after the
Transitional Date, full details regarding the Relevant
Processing Plants which are held by or under the control of
FCF (including the Relevant Processing Plants staff details
(including all employment contracts and other employment
terms), operational reports such as health and safety reports,
operation manuals, maintenance records, production and
financial reports, records, and spreadsheet and database
printouts, and any other relevant information regarding the
Relevant Processing Plants (including any CNIFP Information
relating to the Relevant Processing Plants));
(c) Notwithstanding termination of the Management Agreement on the
Operational Date under the Settlement Agreement, FCF shall,
during the 3 month period between the Operational Date and the
RPP Handover Date ("EXTENSION PERIOD"), continue to manage and
operate the Relevant Processing Plants on behalf of CNIFP on
substantially the same basis that it manages and operates the
Relevant Processing Plants during the Transitional Period, and
in this regard FCF and CNIFP further acknowledge and agree
that:
(i) during the Extension Period, CNIFP shall indemnify
the FCF Group against all fees, costs, losses,
demands and charges incurred by the FCF Group in
respect of the management and operation of the
Relevant Processing Plants, such fees, costs, losses,
demands and charges to be calculated and charged to
CNIFP on the same basis as fees, costs, losses,
demands and charges were charged to CNIFP during the
Transitional Period as Operating Costs (including,
for the avoidance of doubt, the recharge of "SG&A"
costs as defined in the definition of Operating
Costs). FCF shall be entitled to deduct from any
receipts received by it in respect of or on account
of the Business, including the Relevant Processing
Plants, payments due from CNIFP under this clause;
(ii) during the Extension Period, subject to demand for
the same by the Relevant Processing Plants, FCF shall
supply the Relevant Processing Plants with two thirds
of the volume of each grade (other than "R" grade) of
forest products, and in relation to "R" grade, half
of the volume of that grade, supplied by FCF to the
Relevant Processing Plants during the three month
period preceding the Transitional Date ("Supply
Period") and shall use its reasonable endeavours
(having regard to the
Transition Deed 19
FCF Group's harvest volumes out of its forest estates
and the operational requirements of the FCF Group's
xxxxx) to supply the Relevant Processing Plant with
the remaining one third of the volume of the forest
products supplied by FCF to the Relevant Processing
Plants during the Supply Period. To the extent that
there are any material changes in market demand for
processed forest products produced by the Relevant
Processing Plants, FCF and CNIFP will consult and
reasonably cooperate to mitigate any effect which
such material changes may have on the Relevant
Processing Plants. The price payable by CNIFP for
forest products supplied by FCF (in relation to
supplies from the FCF Group forest estates) to the
Relevant Processing Plants shall be the average
transfer price paid by the Relevant Processing Plants
for equivalent grades of forest products to FCF
during the three month period preceding the
Operational Date (the transfer price for each such
month as determined in accordance with the transfer
price mechanism existing as at the Transitional Date)
and the price payable by CNIFP for forest products
procured by FCF from third parties for supply to the
Relevant Processing Plant shall be the price payable
by FCF to such third parties;
(iii) the wood volumes and grade mix of forest products
supplied to the Relevant Processing Plants during the
Extension Period shall be processed by the Relevant
Processing Plants in substantially the same manner as
during the Transitional Period. FCF shall use its
reasonable endeavours to accommodate any reasonable
request by CNIFP to process, by way of sample
batch(es)/product lines (for sale by CNIFP), forest
products of a different type or grade mix from that
currently processed by the Relevant Processing Plants
(such type or grade mix to be specified by CNIFP)
provided that to do so only requires the use of
existing resources at the Relevant Processing Plants;
(iv) during the Extension Period, CNIFP, its agents and
subcontractors shall be entitled to full access to
the Relevant Processing Plants and the location of
staff, assets and equipment at the Relevant
Processing Plants, so as to facilitate the smooth and
efficient transfer of the operations of the Relevant
Processing Plants from FCF to CNIFP on the RPP
Handover Date provided that such access shall not
unreasonably interfere with FCF's ongoing management
of the Relevant Processing Plants until the RPP
Handover Date;
(v) during the Extension Period, FCF shall, in
consultation with CNIFP, use its reasonable
endeavours to secure forward sales of processed
forest products from the Relevant Processing Plants
for delivery within one month after the RPP Handover
Date, and to use its reasonable endeavours to
otherwise maintain ongoing sales relationships
existing as at the Transitional Date (other than with
the FCF Group), in each case in substantially the
same manner as FCF has provided equivalent services
during the Transitional Period. Any orders or forward
sales planned by FCF under this clause for delivery
after the RPP Handover Date shall be the
responsibility of CNIFP and the FCF Group shall have
no responsibility to meet such orders;
(d) FCF shall use its reasonable endeavours to take all action
reasonably requested by CNIFP to assist it with the migration
of staff at the Relevant Processing Plants from FCF to CNIFP
as at the RPP Handover Date. CNIFP and FCF shall cooperate and
consult with each other in relation to all dealings with staff
at the Relevant Processing Plants, and all communication to
such
Transition Deed 20
staff, insofar as such communication relates to any migration
of staff at the Relevant Processing Plants from FCF to CNIFP
and/or any of the obligations of any member of the FCF Group
under this deed, shall be agreed (acting reasonably) and/or
issued jointly by CNIFP and FCF. CNIFP will indemnify the FCF
Group against all redundancy compensation payable under the
relevant terms of employment of staff at the Relevant
Processing Plants that is incurred by the FCF Group in
connection with any claims or demands by a staff member at the
Relevant Processing Plants for redundancy compensation
resulting from the termination of their employment with the
FCF Group, whether such staff member accepts a job offer from
CNIFP or otherwise;
(e) FCF acknowledges and agrees that all CNIFP IT, CNIFP
Information and Data (including all operational manuals and
procedures relating to the operation of a Relevant Processing
Plant) relating to a Relevant Processing Plant is owned by
CNIFP and shall remain with or at that Relevant Processing
Plant (as the case may be) except to the extent that:
(i) they contain Confidential Information or Intellectual
Property of the FCF Group in which case CNIFP shall
not own such Confidential Information or Intellectual
Property but rather FCF shall grant to CNIFP a
perpetual, royalty free licence to use the same
solely for the operation of the Relevant Processing
Plant, such licence to be non-transferable (including
by way of sublicence) except to a purchaser of the
Relevant Processing Plant; or
(ii) ownership of such CNIFP IT, CNIFP Information or Data
may be subject to any third party rights in respect
of it;
(f) the FCF Group will use its reasonable endeavours to do all
things reasonably requested by CNIFP to ensure the smooth and
efficient transfer of the Relevant Processing Plants and their
operations from FCF to CNIFP on the RPP Handover Date; and
(g) the parties agree:
(i) that FCF shall be entitled, following the
Transitional Date but prior to the RPP Handover Date,
to remove its equipment and material located in the
research and planning workshop at the Relevant
Processing Plant at Waipa; and
(ii) to negotiate and enter into a licence for FCF to
occupy and access the relevant parts of the Relevant
Processing Plant at Waipa for a period of up to nine
months after the RPP Handover Date, at a licence fee
of $2,000 (plus GST) per month, in order to
facilitate the orderly transfer of FCF's IT
applications group and associated facilities to an
FCF site; and
(h) the parties agree that a SOP process will be undertaken in
respect of the Relevant Processing Plants in order to manage
the obligations of the parties under this clause 8.2.
8.3 CNIFP acknowledges that FCF shall not, in relation to any CNIFP Plant,
be obliged to supply any feed stocks to CNIFP, or provide any marketing
operations, at any time after the Operational Date (or after the RPP
Handover Date in relation to marketing CNIFP stock produced at the
Relevant Processing Plants) except as agreed between the parties on
normal commercial terms.
Transition Deed 21
9. OTHER SURPLUS ASSETS
9.1 FCF and CNIFP shall, no later than 20 Business Days after the
Transitional Date, meet to discuss in good faith whether CNIFP wishes
to purchase any assets considered by FCF to be surplus to its
requirements following the Operational Date and to establish the basis
upon which any sale of such assets would take place.
10. TE NGAE NURSERY
10.1 The parties acknowledge and agree that, as soon as practicable
following the Transitional Date, FCF and CNIFP shall cooperate and work
together in good faith to procure Trees and Technology Limited ("T&T")
to separate the current order for nurseries stock and seedlings for the
2003 planting season placed by FCF with T&T in relation to both the
CNIFP and FCF forest estates into two independent orders, one for CNIFP
in respect of the CNIFP forest estate and the other for FCF in respect
of the FCF forest estate.
10.2 FCF acknowledges and agrees that, as from the Transitional Date, in
order to facilitate the 2003 planting season and subsequent planting
seasons, CNIFP shall be entitled to deal directly with T&T or any other
nursery services provider in respect of all operational dealings
relating to the Te Ngae Nursery in order to facilitate the smooth
transfer of nursery operations from FCF to CNIFP.
10.3 The FCF Group will use its reasonable endeavours to do all things
reasonably requested by CNIFP, to ensure the smooth and efficient
transfer of the Te Ngae Nursery and its operations from FCF to CNIFP by
the Operational Date.
11. MURUPARA RAILHEAD ISSUES
11.1 The parties acknowledge and agree that there are two separate log yards
at the Murupara Railhead, one relating to the FCF forest estate and the
other relating to the CNIFP forest estate, but only the CNIFP log yard
has direct off-road access. Accordingly, CNIFP agrees to grant to FCF
off-road access through its Murupara log yard to enable FCF to access
its Murupara log yard on the following basis:
(a) in respect of the roading comprising the off-road access
granted by CNIFP to FCF under this clause, but subject to
subclauses (b) and (c) below, FCF shall not be required to pay
any charge to CNIFP for use of such off-road access;
(b) in respect of any use of or access to any rail crossing to
enable FCF to gain access to the FCF Murupara log yard, FCF
shall be responsible for payment of all costs incurred in
respect of the continued use, operation and maintenance of
such rail crossing; and
(c) CNIFP may, following the Anniversary Date, terminate all
rights of off-road access by FCF through CNIFP's Murupara log
yard by giving not less than 6 months' written notice of
termination to FCF.
11.2 FCF and CNIFP further agree to cooperate and work together in good
faith with the view to establishing a commercially sensible operational
structure for their respective log yards at the Murupara Railhead.
11.3 CNIFP and FCF agree to cooperate and work together in good faith with a
view to jointly establishing systems and procedures (including rail
scheduling) for the efficient use of the rail capacity from the
Murupara Railhead and the Kawerau Railhead, the primary objective being
the efficient transportation of wood from the Murupara Railhead and the
Kawerau Railhead. If at any time FCF and CNIFP are unable to reasonably
allocate available rail capacity so that they are each able to
transport all
Transition Deed 22
their wood from the Murupara Railhead and the Kawerau Railhead to their
required destination(s) to meet their respective delivery timeframes,
the parties acknowledge and agree that such rail capacity shall be
allocated as between the parties by reference to the relative wood
volumes transported by FCF and CNIFP respectively from the Murupara
Railhead and the Kawerau Railhead during the preceding quarter.
12. EXPORT RELATED ISSUES
12.1 FCF acknowledges that CNIFP has entered into an export joint venture
with Xxxxxx Xxxx Xxxxxx Limited relating to the export of CNIFP forest
products from New Zealand. FCF and CNIFP acknowledge and agree that
they have established CNIFP forest product export protocols and
principles ("Export Protocols"), as set out in schedule 5, to
facilitate the export of CNIFP forest products under such export joint
venture arrangements for the period referred to in the Export
Protocols. FCF and CNIFP shall use their respective reasonable
endeavours to comply with the Export Protocols. The parties agree that,
to the extent that the Export Protocols are directly inconsistent with
the provisions of the Management Agreement, the Export Protocols will
override the provisions of the Management Agreement in respect of the
export of CNIFP forest products after the Transitional Date.
12.2 FCF agrees to request Port of Tauranga to re-allocate port storage
space on the basis of forecast export log volumes of Port of Tauranga's
users, including CNIFP.
13. CNIFP INFORMATION, IT AND DATA
13.1 Subject to and in accordance with clauses 13.2 to 13.5 (inclusive) and
16.2, the parties hereby agree that during, and where relevant after,
the Transitional Period FCF shall use its reasonable endeavours to
promptly transfer all CNIFP Information then held by, or under the
control of, FCF to CNIFP in the form that such CNIFP Information is
held by, or under the control of, FCF except where it is necessary for
FCF to retain such information in order to meet its obligations under
the Management Agreement or this deed in which case FCF shall where
reasonably possible provide CNIFP with copies of such CNIFP Information
and in any case shall transfer the relevant CNIFP Information promptly
after it becomes no longer necessary for FCF to retain such
information.
13.2 FCF acknowledges that, from the Transitional Date, CNIFP will be
establishing its IT and associated systems ("New IT Systems") so that
CNIFP is able to functionally operate all necessary IT functions and
systems for the smooth and efficient running of the Business from the
Operational Date. FCF agrees to use its reasonable endeavours to do all
things reasonably requested by CNIFP during the Transitional Period,
and (in relation to all necessary IT functions and systems for the
smooth and efficient running of CNIFP's forestry business) for a
further period of 3 months after the Operational Date, to assist in
such establishment of the New IT Systems, such assistance to include
the following:
(a) providing CNIFP with all CNIFP Information and Data in each
case held by, or under the control of, FCF to facilitate the
establishment of the New IT Systems (in the form that such
CNIFP Information or Data is held by, or under the control of,
FCF);
(b) to promptly, upon request by CNIFP, provide CNIFP with details
regarding the existing GIS systems and layers used by FCF in
respect of the Business, the Data comprised in the relevant
GIS database (in a format reasonably agreed as between the
parties) and, if requested by CNIFP, provide CNIFP with the
current GIS AML codes (or codes of a similar nature) for use
as part of the New IT Systems (which, for the avoidance of
doubt, does not include any assistance to acquire any other
GIS software);
Transition Deed 23
(c) during the months of May and June 2003, FCF will pass CNIFP
Information and Data then held by, or under the control of,
FCF from the existing IT systems operated by FCF to CNIFP or
TMC as required for the reconciliation of such CNIFP
Information and Data with the corresponding information and
data generated by the New IT Systems.
Subject to clause 13.5, CNIFP acknowledges that:
(d) where CNIFP considers that it requires the assistance of FCF
as contemplated in this clause 13.2 (in relation to all
necessary IT functions and systems for the smooth and
efficient running of CNIFP's forestry business) during the 3
month period following the Operational Date, CNIFP will give
FCF written notice of the same within 15 Business Days of the
Transitional Date together with notice of the number of full
time employees currently engaged to provide IT related
services in respect of the Business that CNIFP considers as
being necessary to provide such assistance. FCF shall use all
reasonable endeavours to procure the necessary number of such
employees for the required period of assistance (such period
not to exceed 3 months from the Operational Date), provided
that FCF shall only be obliged to procure such employees and
to provide the required assistance if CNIFP meets all costs of
such employees incurred by FCF during the relevant period of
assistance;
(e) FCF has no liability or responsibility for any aspect of New
IT Systems and FCF disclaims any liability or responsibility
to the maximum extent permitted by law; and
(f) FCF shall be entitled to, prior to the Operational Date (or
the RPP Handover Date in relation to hardware at the Relevant
Processing Plants), delete from any hardware device that forms
part of the CNIFP IT all communications and records (other
than CNIFP Information and Data) stored on such device that
are not related to the management or operation of the CNIFP
Plants, including correspondence confidential to the FCF Group
not needed to manage or operate the CNIFP Plants or directly
relevant to such management or operation and any third party
software on such hardware device that CNIFP does not, as at
the Operational Date or the RPP Handover Date (as the case may
be), have a licence or other right or entitlement to use. The
process and protocols relating to the undertaking of deletions
by FCF under this subclause shall constitute a data transfer
issue and be as agreed between the members of the data
transfer working group in the manner contemplated in clause
13.5.
13.3 FCF agrees to grant to CNIFP a perpetual, royalty-free licence to
utilise all Intellectual Property in any IT comprising the "Sonics
Program" (including but without limitation all relevant software,
operations manuals and other related IT infrastructure supporting the
"Sonics Program" and the portable sonics units used at Murupara) solely
for use in the Business such licence to be transferable (including by
way of sublicence) by CNIFP only to a purchaser of all or substantially
all of CNIFP's forest estate.
13.4 FCF acknowledges and agrees that, as between FCF and CNIFP, all Data
held by, or under the control of, FCF is the sole property of CNIFP and
FCF shall have no right to or interest in any such Data. FCF shall
ensure that all Data utilised by it, or which is generated, collected,
derived or otherwise arises and is held, or controlled, by it, in
relation to or in connection with any part or all of the Business
during the Transitional Period:
(a) is properly kept and maintained in electronic (and where
relevant, hard copy) form in an industry standard format that
is capable of being easily downloaded for removal, amended,
modified, updated and/or deleted; and
Transition Deed 24
(b) is properly protected from unauthorised access, use and/or
damage, and kept in a secure manner (including but not limited
to ensuring data back up integrity and the updating of
anti-virus software).
13.5 The parties acknowledge and agree that the transition of management
functions from FCF to CNIFP will involve the significant transfer of
CNIFP Information and Data from FCF to CNIFP. Accordingly, the parties
agree to facilitate the smooth and efficient transfer of such CNIFP
Information and Data on the following basis:
(a) a data transfer working group shall be established by FCF and
CNIFP within 5 Business Days from the Transitional Date, such
working group to be comprised of two nominated representatives
of CNIFP and two nominated representatives of FCF;
(b) the data transfer working group shall, unless otherwise agreed
as between the parties, meet regularly on a weekly basis;
(c) either of the nominated representatives of CNIFP shall be
entitled to request FCF (through either of its nominated
representatives) to provide details regarding CNIFP
Information and Data held by, or under the control of, FCF
from time to time, and to request the transfer of such CNIFP
Information and Data from FCF to CNIFP in accordance with
clauses 13.1 and 13.2; and
(d) the process for the actual transfer of such CNIFP Information
and Data shall be as agreed between the nominated
representatives of CNIFP and FCF provided that this process
shall not require any party to incur obligations or perform
activities that are inconsistent with the provisions of this
deed.
13.6 Notwithstanding anything contained elsewhere in this deed, FCF agrees
that, in relation to any transfer or provision of CNIFP Information
and/or Data to CNIFP under this deed by way of electronic means, such
CNIFP Information and/or Data shall be transferred or provided to CNIFP
in a generic industry standard format (including, by way of example but
not limited to CSV, Microsoft Word and Microsoft Excel).
14. RETURN OF CNIFP WORKING CAPITAL
14.1 Subject to clauses 14.2, 14.3 and 14.4, FCF shall on the Operational
Date, or on the RPP Handover Date in relation to CNIFP Working Capital
held at or arising from or in connection with the Relevant Processing
Plants:
(a) return all CNIFP Working Capital to CNIFP by relinquishing
possession of such CNIFP Working Capital to CNIFP, such that
CNIFP acquires possession and control of the CNIFP Working
Capital existing as at the Operational Date or the RPP
Handover Date, as the case may be; and
(b) transfer to CNIFP, without set-off, deduction and/or other
withholding, all CNIFP Moneys as at the Operational Date or
the RPP Handover Date, as the case may be.
14.2 CNIFP will fully and effectively indemnify FCF in respect of:
(a) the Operating Costs incurred by FCF prior to, but which remain
unpaid by FCF as at, the Operational Date and any costs,
demands, losses or claims payable or received by FCF after the
Operational Date arising out of or in connection with FCF's
management of the Business prior to the Operational Date, to
the extent the same comprise Operating Costs;
Transition Deed 25
(b) all fees, costs, losses, demands and charges which CNIFP is
required to indemnify the FCF Group under clause 8.2(c)(i)
that are incurred by any member of the FCF Group prior to, but
which remain unpaid by that member of the FCF Group as at, the
RPP Handover Date and any fees, costs, demands, losses or
claims payable or received by the FCF Group after the RPP
Handover Date arising out of or in connection with FCF's
management of the Relevant Processing Plants during the
Extension Period which CNIFP is required to indemnify the FCF
Group under clause 8.2(c)(i);
(c) all additional costs (other than those set out in clause
8.2(c)(i)) required to be incurred by the FCF Group directly
in order to provide services to CNIFP, the Receivers or TMC
under this deed (except in relation to services for which
specific arrangements as to payments of any costs, fees,
charges or amounts have been provided for under this deed,
costs which are Operating Costs properly recoverable under the
Management Agreement, any costs, fees, charges or amounts
payable in respect of or in connection with the termination of
the Management Agreement and any amounts payable under the
Settlement Agreement) provided that the FCF Group shall not
incur any item of additional cost in excess of $5,000, and the
aggregate of all such items not separately approved by CNIFP
shall not exceed $60,000 per month, without receiving CNIFP's
prior approval to do so. If and to the extent that CNIFP does
not approve any item of additional cost being incurred, then
the FCF Group will not be responsible for the failure to
perform any corresponding obligation under this deed, and
shall not be liable for any related breach of this deed, which
is a direct consequence of FCF not incurring such additional
cost.
FCF will give not less than 5 Business Days' notice in writing of
expected creditor or other payments (such notice to itemise the
relevant expected payments, the relevant amounts of each such item and
the date for such payments, and FCF to also make available for
inspection by CNIFP all supporting invoices and other relevant
documentation), and CNIFP will pay to FCF the amounts payable in
respect of the indemnities in this clause 14.2 no later than the date
specified in that notice.
14.3 FCF shall promptly collect all outstanding debts and moneys owing on
account or in respect of the Business, and, subject to its rights under
clause 8.2(c)(i), immediately transfer to CNIFP all further CNIFP
Moneys received by it subsequent to the RPP Handover Date by depositing
in full and without deduction into the bank account(s) designated by
CNIFP for such purpose, as notified by CNIFP to FCF from time to time.
14.4 If and to the extent that parts of the CNIFP Working Capital existing
on the Operational Date or the RPP Handover Date, as the case may be,
are not capable of separate identification on that date, FCF's
obligation to return such CNIFP Working Capital shall be to deliver to
CNIFP assets of an equivalent volume and specification so far as is
reasonably practicable, or where it is not reasonably practicable to do
so, pay to CNIFP (by depositing in full and without deduction into the
bank account(s) designated by CNIFP for such purpose and notified by
CNIFP to FCF) the equivalent cash value of such assets, such cash value
to be based on the market price payable for such assets.
14.5 For the avoidance of doubt, nothing in this clause 14 requires FCF to
provide CNIFP with any cash receipts from debtors until FCF has
collected those receipts or to sell any CNIFP Working Capital
consisting of stock on the Operational Date other than in accordance
with clause 12.1 and other than stock arising from the Relevant
Processing Plants under clause 8.2(c)(v)). FCF shall have no obligation
to sell any CNIFP Working Capital consisting of stock at the Relevant
Processing Plants as from the RPP Handover Date.
Transition Deed 26
15. INFORMATION CENTRE
15.1 The parties acknowledge and agree that they shall use their reasonable
endeavours to obtain the consent of the Rotorua District Council to the
transfer of the management agreement for the Redwood Grove Information
Centre located at Long Mile Road, Rotorua ("Information Centre")
managed by FCF to CNIFP effective on the Operational Date, such
transfer to be effected on the following basis:
(a) FCF shall provide to CNIFP full details regarding the
Information Centre (including all staff details (including all
employment contracts and other employment terms), recreational
permit schedules and any other relevant information regarding
the Information Centre) within 5 Business Days of the
Transitional Date;
(b) during the Transitional Period, FCF shall not without the
prior consent of CNIFP issue any recreational permit where the
relevant usage period arises after the Operational Date. FCF
shall also consult with CNIFP in respect of all recreational
permits to be issued in respect of usage during the
Transitional Period; and
(c) if the consent of the Rotorua District Council is obtained,
CNIFP shall use its reasonable endeavours to do all things
reasonably necessary, and FCF shall use its reasonable
endeavours to do all acts reasonably requested by CNIFP, to
ensure the smooth and efficient transfer of the management
agreement for the Information Centre from FCF to CNIFP by the
Operational Date, such transfer to be effected without charge
to CNIFP.
15.2 The parties acknowledge and agree that from the date on which FCF's
management agreement in relation to the Information Centre is assigned
or otherwise transferred to CNIFP, CNIFP shall be responsible for all
costs and expenses incurred in relation to the Information Centre
provided that FCF shall remain liable for all costs and expenses
incurred prior to the relevant date of assignment or transfer.
16. OTHER TRANSITIONAL MATTERS
16.1 FCF agrees promptly from the Transitional Date to use its reasonable
endeavours to facilitate an interim accreditation arrangement for CNIFP
forest estate (but not for the Relevant Processing Plants) with the
Forest Stewardship Council ("FSC"), such arrangement to subsist until
CNIFP has obtained FSC certification in its own right.
16.2 FCF agrees to use its reasonable endeavours to do all things reasonably
requested by CNIFP to assist TMC to assume the management
responsibilities formerly held by FCF under the Management Agreement on
the Operational Date or the RPP Handover Date (in relation to
management of the Relevant Processing Plants), including, without
limitation:
(a) if requested and subject to clause 16.3, assigning or
novating, in a manner and form reasonably requested by CNIFP
and at CNIFP's sole cost, licences for the Intellectual
Property of third parties used in relation to the Business to
CNIFP (or at the request of CNIFP, TMC) and providing all
reasonable assistance to the relevant person to obtain the
consent of Intellectual Property owners or licensors to such
assignments or novations;
(b) if requested and subject to clause 16.3, assigning or
novating, in a manner and form reasonably requested by CNIFP
and at CNIFP's sole cost, any contract, resource consent,
permit, licence, consent and approval related to the Business
(irrespective of whether such contract, resource consent,
permit, licence and approval are in the name of FCF); and
Transition Deed 27
(c) as soon as practicable after the Transitional Date, providing
copies of the records and books of account maintained for the
Business including:
(i) CNIFP sales information;
(ii) information relating to relevant employees and
independent contractors;
(iii) administration details;
(iv) information relating to the Business such as planting
programmes, harvesting, forest description, stand
records, maintenance and logging; and
(v) trial balances, financial statements, other
accounting and stand valuation statements and
records, and management and other reports, relating
to or for the Business and which would otherwise have
been provided by FCF to CNIFP under the terms of the
Management Agreement, for the period up to the
Operational Date.
16.3 The parties acknowledge and agree that to the extent that any contract,
resource consent, permit, licence, consent or approval entered into by
FCF as principal or as agent of CNIFP is not able to be assigned or
novated to CNIFP as contemplated in clause 16.2(a) or 16.2(b) (as the
case may be), whether due to it being combined with contracts, permits,
licences, consents or approvals entered into by, or granted to, FCF in
its own right or on behalf of any third parties, or otherwise (each
being an "UNASSIGNABLE CONTRACT"), FCF will use its reasonable
endeavours to notify CNIFP of the same and will hold the benefit of
that part of each Unassignable Contract which relates to the Business
on trust for CNIFP (including any proceeds relating to that part of the
Unassignable Contract), and CNIFP shall bear all costs and liabilities
in respect of that part of the Unassignable Contract which relates to
the Business but provided that:
(a) FCF shall not be required to hold an Unassignable Contract on
trust for CNIFP at any time following any failure by CNIFP to
pay any cost or meet any liability under that Unassignable
Contract which relates to the Business before FCF is required
to pay such cost or meet such liability; and
(b) FCF shall not be required to incur any cost or liability under
any Unassignable Contract which relates to the Business unless
FCF is satisfied, acting reasonably, that CNIFP will pay that
cost or liability.
CNIFP acknowledges and agrees FCF's holding of any Unassignable
Contract on trust for CNIFP shall not prevent or restrict FCF dealing
with such Unassignable Contract in connection with the operation of its
own business (which may include amending or terminating such contract)
provided that FCF will give CNIFP reasonable prior notice before making
any change in relation to an Unassignable Contract. FCF shall use its
reasonable endeavours to provide all reasonable assistance (but without
being required to provide any guarantee or make any payment to any
other contractual party) requested by CNIFP from time to time to enable
CNIFP to replace any Unassignable Contract with a new contract with the
relevant contractual party or parties. FCF and CNIFP shall otherwise
take all reasonable steps and shall cooperate with each other to secure
the separation of such Unassignable Contract as soon as practicable.
16.4 The parties acknowledge and agree that, as from the Transitional Date,
CNIFP and/or any person authorised by it shall at all times be entitled
to full access to the CNIFP forest estate provided that such access
shall not unreasonably interfere with FCF's continued management under
the Management Agreement until the Operational Date
Transition Deed 28
and CNIFP and/or all persons authorised by it so accessing the CNIFP
forest estate shall comply with all reasonable directions of FCF in
relation to any health and safety or other requirements.
16.5 FCF shall use its reasonable endeavours to provide to CNIFP all
management reports held by it, or under its control, which it is
required to provide to CNIFP under the Management Agreement for the
relevant reporting periods up to and including the Operational Date,
all trial balances for accounting periods up to and including the
Operational Date, and all other historic accounting records (including
working capital accounts) held by it, or under its control, for periods
up to and including the Operational Date, notwithstanding that the
provision of such information by FCF may extend beyond the Operational
Date. FCF shall not be required to prepare any annual management plan
and/or budget under the Management Agreement in relation to the
2003/2004 period but this shall not release FCF from its obligation to
provide any working data already prepared by it under the Management
Agreement in respect of the Business for the 2003/2004 period as at the
Transitional Date.
16.6 FCF agrees, in respect of any FCF employee who applies for, and is
successful in obtaining, employment with TMC (any such person, a
"Relevant Employee") to waive any restrictive covenant or similar term
(but not including any obligations of confidentiality or ownership of
property including Intellectual Property) contained in any existing
employment contract of such Relevant Employee with FCF or any of its
subsidiaries ("FCF Employment Contract") which would or could arguably
prevent or unreasonably delay such Relevant Employee from promptly
commencing employment with TMC.
16.7 The parties acknowledge and agree that the transition of management
functions from FCF to TMC will involve the significant transfer of
roles, functions, operations and/or responsibilities from FCF to TMC.
Accordingly, the parties agree to facilitate the smooth and efficient
transfer of such roles, functions, operations and responsibilities
(subject to clause 13) on the following basis:
(a) a transition management working group shall be established by
FCF and CNIFP within 5 Business Days from the Transitional
Date, such working group to be comprised of two nominated
representatives of CNIFP or TMC and two nominated
representatives of FCF;
(b) the transition management working group shall, unless
otherwise agreed as between the parties, meet regularly on a
weekly basis;
(c) the transition management working group shall deal with all
day-to-day matters arising in relation to the performance by
the various parties of the various transition matters the
subject of this deed, and shall cooperate and work together in
good faith with a view to facilitate the smooth and efficient
performance of the relevant matters arising under this deed.
16.8 Each of CNIFP and TMC acknowledges and agrees for the benefit of the
FCF Group that it shall not (and shall procure that none of its
Affiliates), during the period from the Transitional Date until the
Anniversary Date, take any steps to induce or solicit any employee or
group of employees of any member of the FCF Group to terminate his, her
or their employment and/or enter into any employment with CNIFP and/or
TMC or their Affiliates, provided that nothing in this clause shall
preclude CNIFP and/or TMC from dealing with any such employee or group
of employees who is or are responding to any advertisement for
positions of employment with CNIFP and/or TMC or from dealing with any
such employee or group of employees who has or have, without inducement
or solicitation by CNIFP and/or TMC, approached CNIFP and/or TMC
regarding employment at CNIFP and/or TMC. Each member of the FCF Group
Transition Deed 29
acknowledges and agrees that in the event that any of its employees
wishes to commence employment with CNIFP and/or TMC (as the case may
be), it shall not (and shall procure that none of its Affiliates),
during the period from the Transitional Date until the Anniversary
Date, offer or attempt to offer any such relevant employee any
inducement to remain in its employment and/or that of any of its
Affiliates provided that, for the avoidance of doubt, this shall not
prevent any member of the FCF Group from undertaking normal annual
remuneration reviews or increasing employee remuneration commensurate
with corresponding increases in employee responsibilities.
16.9 None of CNIFP, the Receivers, RWS and RSM has any rights, entitlement
or interest in or to any Intellectual Property relating to, or
connected with, FCF's management of its own and CNIFP's forest estate
and associated forestry operations (which shall not include, for the
avoidance of doubt, Intellectual Property which forms part of CNIFP
Information or any "Red Stag", "Stag" and/or associated logos, brands,
trade marks, devices and/or similar markings) and except to the extent
of CNIFP's entitlement to use FCF's log grade names where its
specification is the same or substantially the same as FCF's
specification and as otherwise provided in or contemplated under this
deed, none of them shall have any right, entitlement or interest in or
to such Intellectual Property whether by way of title, licence or
sub-licence under this deed, the Management Agreement or otherwise.
16.10 The parties will reasonably co-operate with each other to:
(a) endeavour to manage effectively and efficiently the supply of
pulp wood fibre by the FCF Group under the back-up agreement
dated 28 July 2000 as varied by the variation agreement dated
19 December 2000 (the "BACK-UP AGREEMENT"), and the supply of
pulp wood fibre by CNIFP under the Tasman Contracts; and
(b) seek to effect either a novation of the pulp wood fibre supply
arrangements in the Back-up Agreement from the FCF Group to
CNIFP (other than insofar as the Back-up Agreement relates to
any of the Inter-Division Agreement, the Tarawera Agreement
and the Matahina Agreement (as such agreements are defined in
the Back-up Agreement)), or a replacement pulp wood fibre
supply agreement between CNIFP and Norske Xxxx Tasman Limited,
that releases the FCF Group from its obligations under the
Back-up Agreement provided however that any such novation or
replacement agreement must incorporate provisions whereby
CNIFP is released from all obligations to supply any pulp wood
fibre to any member of the FCF Group under the Tasman
Contracts.
FCF agrees that, for the duration of the Back-up Agreement, it will not
require CNIFP to provide a greater volume of pulp wood fibre under the
Tasman Contracts at any time than FCF is required to deliver to Norske
Xxxx Tasman Limited at that time under the Back-up Agreement. For the
avoidance of doubt, the parties acknowledge and agree that no member of
the FCF Group shall have any entitlement to the supply of any pulp wood
fibre under the Tasman Contracts after 31 March 2020.
16.11 Other than to the extent set out in paragraph 16 of schedule 5, none of
CNIFP, TMC, the Receivers, RWS and RSM shall, as from the Operational
Date, be entitled to use any FCF Group brand, logo, trade xxxx or other
similar right. CNIFP and TMC will use their reasonable endeavours to
remove all such FCF Group logos, brands, trade marks or similar
markings from all sites and equipment of the Business as soon as
reasonably practicable following the Operational Date and in any event
within six months of that date.
Transition Deed 30
16.12 Notwithstanding anything else contained in this deed, no member of the
FCF Group shall be required to transfer or deliver to any party under
this deed the following information:
(a) subject to clause 16.2(c)(i), customer information including
marketing plans;
(b) customer profiles;
(c) sales contacts;
(d) Intellectual Property relating to forestry operations;
(e) information relating to FSC "chain of custody" at the Relevant
Processing Plants; and
(f) any information the disclosure of which would result in the
relevant member of the FCF Group breaching any of its valid
and binding confidentiality obligations, in respect of which
the relevant member of the FCF Group shall promptly notify
CNIFP of the same and use its reasonable endeavours to
co-operate with CNIFP with a view to procuring from the
relevant third party all necessary consents to the transfer or
delivery of such information to CNIFP under the terms of this
deed or otherwise making such information available in a
manner which would not breach such confidentiality
obligations.
16.13 FCF shall use all reasonable endeavours to provide such reasonable
information, cooperation and assistance (including reasonably making
available employees as witnesses and using reasonable endeavours to
liaise with relevant third parties and former employees) as CNIFP may
reasonably require in order to prosecute the claim brought by (inter
alia) CNIFP against (inter alia) the Crown in the High Court of New
Zealand, Wellington Registry (CP 39/03). CNIFP shall pay all reasonable
costs and expenses (including all reasonable legal costs) incurred by
FCF in performing its obligations under this clause.
17. COMPLIANCE WITH STATUTES AND OTHER REQUIREMENTS
17.1 Each party shall comply with all relevant statutes, regulations and
other enactments, permits, notices, requirements and requisitions
affecting the use of the Infrastructure and the provision of fire
protection services as from the Operational Date for so long as and to
the extent that the relevant parts of clauses 2 to 4 inclusive apply.
Without limiting the generality of the foregoing:
(a) each party shall notify the relevant other parties of any
hazards discovered by it and of any accidents in terms of the
Health and Safety in Employment Xxx 0000;
(b) each party shall comply with the Forest and Rural Fires Xxx
0000;
(c) if any party receives notice from any statutory, territorial
or other authority having jurisdiction or control with respect
to the Infrastructure or the provision of fire protection
services or any part thereof, it shall forthwith advise the
relevant other parties of such notice. Each party shall
perform and observe the matters required of it and contained
in such notice (subject to any rights it may have to object or
otherwise lawfully resist the effect of such notice).
17.2 As from the Operational Date, for so long as and to the extent that the
relevant parts of clauses 2 to 4 inclusive apply, each party uses the
Infrastructure or part thereof at its own risk and to the fullest
extent permitted by law and to the extent that any claims, damages
and/or costs whatsoever shall not have arisen as a result of the wilful
or
Transition Deed 31
negligent act or omission of the relevant other parties, releases the
relevant other parties from all claims, damages or costs whatsoever in
connection with its use of the Infrastructure or any part thereof.
18. RIGHT TO ASSIGN AND BENEFIT TO RUN WITH THE LAND
18.1 The parties acknowledge and agree that:
(a) where one party owns the land on which any part of the Roading
Infrastructure is located, then such party shall ensure that
the right for any other party hereto to use that Roading
Infrastructure shall run with the land and shall bind all
successors in title to the land (to the extent such right
persists); and
(b) as, pursuant to the Crown Forestry Licences, CNIFP is licensee
only of the land on which its forests are planted, any right
to use any part of its Roading Infrastructure or lookout
towers on such land shall be subject to the terms of the Crown
Forestry Licences and to CNIFP or its successors in title to
its forests continuing as licensees under the Crown Forestry
Licences, and/or subject to CNIFP being reasonably able to
procure the necessary rights for the use of such part of the
Roading Infrastructure or the relevant lookout towers on terms
satisfactory to CNIFP (acting reasonably).
18.2 To the extent that it is not prevented by law, each party
("Encumbrancer") agrees to encumber the Encumbrancer's estate or
interest in the land on which the Roading Infrastructure is located in
favour of the relevant other party/parties ("Encumbrancee(s)") to
secure to the Encumbrancee(s) the Encumbrancer's compliance with its
obligations under this deed with respect to access to Roading
Infrastructure. Such encumbrance shall be registered against the title
to the Encumbrancer's estate or interest in the land, to provide notice
to the world of the existence of this deed and the parties' agreement
herein with respect to access to Roading Infrastructure. To the extent
that the consent of any chargee, mortgagee or other third party ("THIRD
PARTY") is required prior to the Encumbrancer being able to comply with
its obligations under this clause, the Encumbrancer and the
Encumbrancee(s) shall co-operate and use their reasonable endeavours to
seek and procure the necessary consent of such Third Party to the grant
and registration of all relevant encumbrances as contemplated in this
clause.
18.3 Neither FCF nor CNIFP (as forest owners) shall, in the case of CNIFP,
sell or otherwise dispose of any part or all of its forests or, in the
case of FCF, sell or dispose of the relevant parts of its forests
without first procuring from the purchaser or other disposee of such
forests a deed of covenant in favour of the relevant other
party/parties whereby the purchaser or disposee covenants to be bound
by and to perform and observe all the terms of this deed with respect
to access to Roading Infrastructure that have not expired or been
performed.
19. ACKNOWLEDGMENT
19.1 The parties acknowledge and agree that:
(a) in respect of any benefit conferred to CNIFP under this deed,
CNIFP shall be entitled to require any other relevant party to
this deed to confer the relevant benefit(s) to TMC or any
other manager or purchaser of all or any substantial part of
the Business, (each Relevant Processing Plant being deemed to
be a substantial part of the Business) as if TMC, such
purchaser and/or such manager was (and hereby is deemed to be)
CNIFP under the relevant provision(s) of this deed. The
relevant provision(s) of this deed setting out such benefit(s)
so conferred by CNIFP on TMC, such purchaser and/or such
manager shall be enforceable by TMC, such purchaser and/or
such manager
Transition Deed 32
as if TMC, such purchaser and/or such manager (as the case may
be) is CNIFP under the relevant provision(s) of this deed;
(b) in respect of any benefit conferred to the FCF Group under
this deed, the FCF Group shall be entitled to require any
other relevant party to this deed to confer the relevant
benefit(s) to any other manager or purchaser of all or any
substantial part of its forest estate as if such manager or
purchaser was (and hereby is deemed to be) the FCF Group under
the relevant provision(s) of this deed. The relevant
provision(s) of this deed setting out such benefit(s) so
conferred by the FCF Group on such manager or purchaser shall
be enforceable by such manager or purchaser as if such manager
or purchaser was named as the relevant member of the FCF Group
under the relevant provision(s) of this deed;
(c) in respect of any obligation of CNIFP under this deed, CNIFP
may perform or fulfil such obligation through TMC or any other
person on behalf of CNIFP, in each case as advised by CNIFP to
FCF from time to time. Such performance or fulfilment by TMC
or such other person shall be deemed the performance or
fulfilment of the relevant obligation by CNIFP; and
(d) in respect of any obligation expressed to be an obligation of
FCF under this deed, such obligation shall be deemed to be the
obligation of any Affiliate of FCF which has the relevant
right, power, entitlement and/or authority to perform or
fulfil such obligation, and where the relevant Affiliate of
FCF is not a party to this deed but is deemed by virtue of
this subclause to have an obligation under this deed, FCF
shall procure such of its Affiliate to fulfil and perform the
relevant obligation under this deed.
20. CONFIDENTIALITY
20.1 Subject to clauses 20.2 and 20.3, each party shall:
(a) during the continuance of this deed and after its termination,
treat as confidential and privileged the terms of this deed,
all Confidential Information supplied to it by any of the
other parties or their Affiliates whether before or after
execution of this deed;
(b) not use any Confidential Information to the detriment of the
party from whom that party obtained the Confidential
Information or to the detriment of any other party in any way
whatsoever at any time except as may be required by law
(including without limitation any order of a court of
competent jurisdiction) or the rules of any recognised stock
exchange or governmental or other regulatory body;
(c) use all reasonable commercial endeavours to ensure that each
of its Affiliates (and in the case of CNIFP, any and all
prospective purchasers of the assets of CNIFP), who are at any
time in possession of any Confidential Information, comply
with that party's obligations under this clause, and otherwise
does not disclose or permit the disclosure or detrimental use
of such Confidential Information.
20.2 Notwithstanding anything in clause 20.1,
(a) CNIFP and/or the Receivers will be entitled at all times to
fully disclose the terms of this deed and any other related
information to:
(i) the Bank of New Zealand (as security agent or as
financier under the first ranking debenture dated 27
September 1996 granted by (amongst
Transition Deed 33
others) FCNZ and CITIC (formerly known as Citifor
Limited) in favour of Bank of New Zealand as the
security trustee, as amended on 16 December 1996
("DEBENTURE")) and each holder of the Debenture;
(ii) any potential manager and/or potential purchaser of
all or any substantial part of the Business (each
Relevant Processing Plant being deemed to be a
substantial part of the Business), subject to that
potential manager and/or purchaser agreeing to
reasonable confidentiality undertakings; and/or
(iii) their advisers, auditors or financiers; and
(b) each of FCF, FCM, FCFL and FCL may disclose the terms of this
deed and any related information to:
(i) any potential purchaser (directly or indirectly) of
all or any substantial part of that party's forestry
assets (subject to that potential purchaser agreeing
to reasonable confidentiality undertakings); and
(ii) its advisers, auditors or financiers.
20.3 Notwithstanding anything in clause 20.1:
(a) subject to subclause (b), if any party and/or its Affiliates
is required by law or court order or regulatory authority
having jurisdiction over that party to disclose any
Confidential Information of any other party, disclosure may be
made only after the relevant other party has been notified and
has had a reasonable opportunity to oppose such disclosure on
reasonable grounds;
(b) if any party and/or its Affiliates is required by the listing
rules of any stock exchange to disclose any Confidential
Information of any other party based on a legal opinion from
appropriately qualified legal counsel, or if any party and/or
its Affiliates is required to disclose any Confidential
Information of any other party pursuant to the continuous
disclosure provisions under the NZSE Listing Rules and/or the
Securities Markets Xxx 0000, the ASX Listing Rules or the NYSE
Listing Rules based on a legal opinion from appropriately
qualified legal counsel, such disclosure may (subject to
clause 20.4) be made immediately (if necessary) provided that
the relevant other party is notified as soon as is practicable
following the disclosing party becoming aware of such
requirement to disclose.
The provisions of this clause shall not affect the right of any party
to institute proceedings against the disclosing party for any
pre-existing breach of this deed by the disclosing party and/or its
Affiliates.
20.4 The disclosing party agrees that any of the other parties and/or any of
its Affiliates may suffer damage as a result of any unauthorised
disclosure of the Confidential Information. The disclosing party
further agrees that any of the other parties and/or any of its
Affiliates shall be entitled to equitable relief, including an
injunction and an order for specific performance, in the event of any
breach of the provisions of this deed.
21. DISPUTE RESOLUTION
21.1 Any dispute which may arise between the parties out of or in connection
with this deed, including any alleged breach by any party of any of the
terms of this deed or any dispute as to the existence or validity of
this deed ("DISPUTE"), shall be resolved in the following manner:
Transition Deed 34
(a) a party may give to the other party/parties a written notice
("DISPUTE NOTICE") stating the subject matter and details of
the Dispute and requesting the commencement of good faith
negotiations by their respective nominated representatives (or
either of the Receivers in the case of CNIFP);
(b) the nominated representatives of the disputing parties (or
either of the Receivers in the case of CNIFP) will negotiate
in good faith to resolve the Dispute within 5 Business Days of
receipt of the Dispute Notice by the receiving party/parties;
(c) if the Dispute is not resolved within 5 Business Days of
receipt of the Dispute Notice, the Dispute shall be referred
to the chief executive officers of the disputing parties and
either of the Receivers in the case of CNIFP, who will then
negotiate in good faith to resolve the Dispute;
(d) if the Dispute is not resolved within 10 Business Days of
receipt of the Dispute Notice, the Dispute shall:
(i) if agreed to by the disputing parties, be referred to
the mediation of one mediator, to be jointly
appointed by the disputing parties. The referral to
mediation shall commence when a party gives written
notice ("MEDIATION NOTICE") to the other
party/parties requesting the commencement of such
mediation within 5 Business Days of receipt of the
Dispute Notice. If the disputing parties cannot agree
on the appointment of a mediator within 3 Business
Days of the date of the Mediation Notice, the
mediator shall be appointed at the request of a party
by the chairperson or any other office holder for the
time being of the New Zealand chapter of LEADR, or
the nominee of such chairperson or other office
holder; or
(ii) otherwise be resolved through ordinary court
proceedings.
21.2 If the disputing parties exercise their option to refer the Dispute to
the mediation of one mediator as contemplated in clause 21.1(d) and the
Dispute is not resolved within 10 Business Days from the date of
appointment of the mediator under clause 21.1(d), the Dispute shall:
(a) if the disputing parties agree, be referred to determination
by an expert appointed by the disputing parties on such terms
and conditions of expert determination as the disputing
parties may jointly determine, the expert's determination
being binding on the disputing parties; or
(b) otherwise be resolved through ordinary court proceedings.
22. NOTICES
22.1 Each notice or other communications under this deed is to be in
writing, is to be made by facsimile, personal delivery or by post to
the addressee at the facsimile number or address, and is to be marked
for the attention of the person or office holder (if any) from time to
time designated for the purpose by the addressee in writing to the
other parties. The initial phone number, facsimile number, address and
relevant person or office holder of each party is set out under its
name at the end of this deed.
22.2 No communication is to be effective until received. A communication
will, however, be deemed to be received by the addressee:
(a) in the case of a facsimile, on the Business Day on which it is
despatched or, if despatched after 5pm (in the place of
receipt) on a Business Day or if
Transition Deed 35
despatched on a non-Business Day, on the next Business Day
after the date of dispatch;
(b) in the case of personal delivery, when delivered; and
(c) in the case of a letter, on the third Business Day after
posting by airmail.
23. NO WAIVERS
23.1 No delay, grant of time, release, compromise, forbearance (whether
partial or otherwise) or other indulgence by a party in respect of any
breach of any other party's obligations under this deed is to:
(a) operate as a waiver or prevent the subsequent enforcement of
that obligation; or
(b) be deemed a delay, grant of time, release, compromise,
forbearance (whether partial or otherwise) or other indulgence
in respect of, or a waiver of, any subsequent or other breach.
24. ENTIRE AGREEMENT
24.1 This deed, the Settlement Agreement and the wood supply agreement
referred to in the Settlement Agreement shall constitute the entire
understanding and agreement of the parties relating to the transactions
contemplated by these documents.
25. WRITTEN VARIATIONS
25.1 No amendment to this deed will be effective unless it is in writing and
signed by all the parties hereto.
26. SEVERABILITY
26.1 Any unlawful or voidable provision in this deed shall be read down as
to be valid and enforceable or, if it cannot be read down, will be
severed from this deed without affecting the validity, legality or
enforceability of the remaining provisions, provided the reading down
or severing does not materially affect the purpose of or frustrate this
deed.
27. FURTHER ASSURANCES
27.1 Each party shall:
(a) take all steps reasonably required to give full effect to the
terms of this deed; and
(b) use all reasonable endeavours to ensure the observance of the
terms of this deed.
28. COUNTERPARTS
28.1 This deed may be executed in two or more counterparts each of which
will be deemed an original, but all of which together will constitute
one and the same instrument.
29. OWN COSTS
29.1 Unless otherwise specified in this deed, each party will bear its own
costs in relation to the negotiation, preparation and execution of this
deed.
Transition Deed 36
30. GOVERNING LAW AND JURISDICTION
30.1 This deed is governed by the laws of New Zealand.
30.2 The parties submit to the exclusive jurisdiction of the courts of New
Zealand in relation to all disputes arising out of or in connection
with this deed.
31. MANAGEMENT AGREEMENT AND TASMAN CONTRACTS
31.1 The parties acknowledge and agree that the Receivers do not, by this
deed (including, without limitation, clause 1.4), their execution of
this deed, the performance by them or by any of FCNZ, CITIC or CNIFP of
any obligations of any of them under this deed, by the consultation,
co-operation or undertaking of any other thing contemplated by clause
1.4, or by any reference to the Management Agreement and/or the Tasman
Contracts anywhere in this deed, adopt, or otherwise become personally
liable under or in relation to, the Management Agreement and/or the
Tasman Contracts.
31.2 Without derogating from clause 31.1 above, each and every member of the
FCF Group waives, and fully releases the Receivers from, any claim such
member has as at the date of this deed or subsequently may have that
the Receivers have (by any action or omission whatsoever, whether
occurring prior to, by means of, or subsequent to their execution of
this deed) adopted, or otherwise become personally liable under or in
relation to, the Management Agreement.
31.3 The Receivers agree not to enter into any agreement to sell all or any
substantial part of the CNIFP forest estate, other than an agreement
which provides for the rights and obligations of CNIFP under the Tasman
Contracts to be assigned and/or novated to the purchaser under that
agreement, unless the Receivers have first given FCF not less than
seven Business Days prior written notice of their intention to enter
the agreement. The Receivers and FCF agree that this clause 31.3
supersedes the arrangements between them concerning the same matter
recorded in a letter dated 10 December 2001 written by Xxxxxxxx & Xxxx
to Xxxx Gully (and the arrangements recorded in that letter are hereby
terminated). Subject to the arrangements and agreements between the
parties recorded in this deed and in the Settlement Agreement and the
wood supply agreement referred to in the Settlement Agreement, the
agreement in this clause 31.3 is without prejudice to the respective
positions of the parties in relation to the Tasman Contracts.
32. LIMITATION OF LIABILITY OF RECEIVERS
32.1 The liability of the Receivers by virtue of section 32(1)(a) of the
Receiverships Xxx 0000 for the obligations of CNIFP under clause 14.2
shall:
(a) be limited in extent to the obligation of CNIFP to make
payments to FCF in respect of the indemnities set out in
clauses 8.1(c), 8.2(c)(i), 8.2(d) and 14.2; and
(b) be limited in amount, in respect of each of the indemnity
amount payable by CNIFP to FCF under clauses 8.1(c),
8.2(c)(i), 8.2(d) and 14.2, to an amount not exceeding the net
realisable value of the Charged Assets in the hands of the
Receivers and available to them pursuant to their indemnity
from Charged Assets at the relevant time ("Relevant Time"),
being the time such indemnity amount becomes due and payable
under clause 8.1(c), clause 8.2(c)(i), clause 8.2(d) or clause
14.2.
32.2 No party shall have recourse to either or both of the Receivers'
personal assets (other than their right to be indemnified from the
Charged Assets whether pursuant to section 32(9) of the Receiverships
Act 1993 or otherwise), nor shall any party petition
Transition Deed 37
or otherwise seek adjudication for bankruptcy of either or both of the
Receivers, in respect of any liability, claim or judgment thereon
under, pursuant to, or in connection with clause 8.1(c), clause
8.2(c)(i), clause 8.2(d) or clause 14.2 of this deed or any other
provision of this deed. Any recourse by any party against the Receivers
in respect of clause 8.1(c), clause 8.2(c)(i), clause 8.2(d) or clause
14.2 shall at all times be limited solely to the Charged Assets for the
time being of FCNZ and CITIC in the hands of the Receivers and
available to them pursuant to their indemnity from Charged Assets at
the Relevant Time.
32.3 Each member of the FCF Group acknowledges and agrees that this deed has
been signed on behalf of FCNZ and CITIC (as the partners of CNIFP) by
its joint Receivers, and that, other than (subject to the limitations
in clauses 32.1 and 32.2) in respect of the obligations of CNIFP under
clause 8.1(c), clause 8.2(c)(i), clause 8.2(d) or clause 14.2, the
Receivers and their agents and employees shall not be personally liable
for any of the obligations of FCNZ and CITIC (as the partners of CNIFP)
arising under or pursuant to this deed, nor shall the Receivers or
their agents or employees be liable for any statements, actions,
representations or other events leading up to the formation of this
deed, nor any claims arising consequent upon formation of this deed,
including any causes of action which may arise at any time after this
deed.
32.4 Other than (subject to the limitation as to the extent and as to the
amount in clauses 32.1 and 32.2) in respect of the obligations of CNIFP
under clause 8.1(c), clause 8.2(c)(i), clause 8.2(d) or clause 14.2 of
this deed, the Receivers shall have no personal liability under or in
respect of this deed and if any member of the FCF Group is entitled to
exercise any rights of action pursuant to this deed, each member of the
FCF Group agrees that such rights must be exercised against FCNZ and
CITIC (as the partners of CNIFP) alone and not the Receivers or their
agents or employees.
32.5 If, notwithstanding the provisions of clauses 32.3 and 32.4, other than
(subject to the limitation in clauses 32.1 and 32.2) in respect of the
obligations of CNIFP under clause 8.1(c), clause 8.2(c)(i), clause
8.2(d) or clause 14.2 of this deed, a court of competent jurisdiction
shall hold the Receivers or their agents or employees personally liable
in respect of any matters, other than (subject to the limitation in
clauses 32.1 and 32.2) in respect of the obligations of CNIFP under
clause 8.1(c) or clause 14.2 of this deed, arising under or incidental
to this deed, such liability shall be limited to the lesser of US$1
million or the net realisable value of the assets for the time being of
FCNZ and CITIC (as the partners of CNIFP) in the hands of and available
to the Receivers at the time when judgment is entered or execution
thereon is issued.
33. FCF LIABILITY
The total liability of the FCF Group in respect of any and all defaults
by any member of the FCF Group of any of its or their obligations under
this deed shall be limited to $10 million in aggregate, except for
liability resulting from the wilful default by any relevant member of
the FCF Group in respect of an obligation under this deed.
Transition Deed 38
EXECUTED AS A DEED
FORESTRY CORPORATION OF NEW
ZEALAND LIMITED (IN RECEIVERSHIP)
by:
_________________________________
Signature of joint receiver
_________________________________
Name of joint receiver
______________________________________
Signature of witness
______________________________________
Name of witness
______________________________________
Occupation of witness
______________________________________
City/town of residence
Forestry Corporation of New Zealand
c/- Xxxxxxx Xxxxxxxx/Xxxxx Xxxxxx
Xxxxxxx Xxxxxxx
Xxxxx 00
Xxxxx Xxxxxx
00 Xxxxx Xxxxxx
XX Xxx 000
Xxxxxxxx 0
Ph: (00) 000 0000
Fax: (00) 000 0000
CITIC NEW ZEALAND LIMITED (BVI) (IN
RECEIVERSHIP) by:
____________________________________________
Signature of joint receiver, as its attorney
______________________________ ____________________________________________
Signature of witness Name of joint receiver
______________________________
Name of witness
______________________________
Occupation of witness
______________________________
City/town of residence
Citic New Zealand Limited (BVI)
c/- Xxxxxxx Xxxxxxxx/Xxxxx Xxxxxx
Xxxxxxx Xxxxxxx
Xxxxx 00
Xxxxx Xxxxxx
00 Xxxxx Xxxxxx
XX Xxx 000
Xxxxxxxx 0
Ph: (00) 000 0000
Fax: (00) 000 0000
Transition Deed 39
TIMBER MANAGEMENT COMPANY LIMITED
by:
_________________________________
Signature of director
_________________________________
Name of director
_________________________________
Signature of director
_________________________________
Name of director
Timber Management Company Limited
X/- Xxxxxxx Xxxxxxx
Xxxxx 00
Xxxxx Xxxxxx
00 Xxxxx Xxxxxx
XX Xxx 000
Xxxxxxxx 1
Ph: (00) 000 0000
Fax: (00) 000 0000
RED STAG WOOD PRODUCTS LIMITED
(IN RECEIVERSHIP) by:
_________________________________
Signature of joint receiver
_________________________________
Name of joint receiver
______________________________________
Signature of witness
______________________________________
Name of witness
______________________________________
Occupation of witness
______________________________________
City/town of residence
Red Stag Wood Products Limited
c/- Xxxxxxx Xxxxxxxx/Xxxxx Xxxxxx
Xxxxxxx Xxxxxxx
Xxxxx 00
Xxxxx Xxxxxx
00 Xxxxx Xxxxxx
XX Xxx 000
Xxxxxxxx 0
Ph: (00) 000 0000
Fax: (00) 000 0000
Transition Deed 40
RED STAG MOULDINGS LIMITED (IN
RECEIVERSHIP) by:
_________________________________
Signature of joint receiver
_________________________________
Name of joint receiver
______________________________________
Signature of witness
______________________________________
Name of witness
______________________________________
Occupation of witness
______________________________________
City/town of residence
Red Stag Mouldings Limited
c/- Xxxxxxx Xxxxxxxx/Xxxxx Xxxxxx
Xxxxxxx Xxxxxxx
Xxxxx 00
Xxxxx Xxxxxx
00 Xxxxx Xxxxxx
XX Xxx 000
Xxxxxxxx 0
Ph: (00) 000 0000
Fax: (00) 000 0000
XXXXXXX XXXXX XXXXXXXX AND GRANT
XXXXXX XXXXXX by:
_________________________________
Signature of joint receiver
_________________________________
Name of joint receiver
_________________________________
Signature of joint receiver
_________________________________
Name of joint receiver
______________________________________
Signature of witness
______________________________________
Name of witness
______________________________________
Occupation of witness
______________________________________
City/town of residence
Xxxxxxx Xxxxxxxx and Xxxxx Xxxxxx
Xxxxxxx Xxxxxxx
Xxxxx 00
Xxxxx Xxxxxx
00 Xxxxx Xxxxxx
XX Xxx 000
Xxxxxxxx 0
Ph: (00) 000 0000
Fax: (00) 000 0000
Transition Deed 41
XXXXXXXX CHALLENGE FORESTS
MANUFACTURING LIMITED by:
_________________________________
Signature of director
_________________________________
Name of director
_________________________________
Signature of director
_________________________________
Name of director
Chief Executive/General Counsel
0 Xxxxxxxxx Xxxxxx
Xxxxxxx
Xxxxxxxx
Private Bag 92036
Ph: (00) 000 0000
Fax: (00) 000 0000
XXXXXXXX CHALLENGE FOREST INDUSTRIES LIMITED by:
_________________________________
Signature of director
_________________________________
Name of director
_________________________________
Signature of director
_________________________________
Name of director
Chief Executive/General Counsel
0 Xxxxxxxxx Xxxxxx
Xxxxxxx
Xxxxxxxx
Private Bag 92036
Ph: (00) 000 0000
Fax: (00) 000 0000
Transition Deed 42
XXXXXXXX CHALLENGE FORESTS FINANCE
LIMITED by:
_________________________________
Signature of director
_________________________________
Name of director
_________________________________
Signature of director
_________________________________
Name of director
Chief Executive/General Counsel
0 Xxxxxxxxx Xxxxxx
Xxxxxxx
Xxxxxxxx
Private Bag 92036
Ph: (00) 000 0000
Fax: (00) 000 0000
XXXXXXXX CHALLENGE FORESTS LIMITED by :
_________________________________
Signature of authorised person
______________________________________ _________________________________
Signature of witness Name of authorised person
______________________________________
Name of witness
______________________________________
Occupation of witness
______________________________________
City/town of residence
AND by :
_________________________________
Signature of authorised person
______________________________________ _________________________________
Signature of witness Name of authorised person
______________________________________
Name of witness
______________________________________
Occupation of witness
______________________________________
City/town of residence
Chief Executive/General Counsel
0 Xxxxxxxxx Xxxxxx
Xxxxxxx
Xxxxxxxx
Private Bag 92036
Ph: (00) 000 0000
Fax: (00) 000 0000
Transition Deed 43
SCHEDULE 1
ROADING INFRASTRUCTURE
1. ROADS
All roads highlighted on the roading plans attached to this schedule 0,
xxxxx xxxxx, xxxxxxx and supporting infrastructure located on land
owned or occupied by FCF or CNIFP in the central North Island which at
the Transitional Date are used in connection with the forestry
operations of either FCF or CNIFP and which either:
(a) FCF or CNIFP has access to or a right to use; or
(b) FCF or CNIFP owns,
but only to the extent each party is lawfully able to share such roads
and access thereto.
2. WEIGHBRIDGES
LOCATION OF WEIGHBRIDGE OWNER OF WEIGHBRIDGE*
-------------------------------------------------------
KPP - stems CNIFP
-------------------------------------------------------
Murupara - Logs FCF
-------------------------------------------------------
Waimihia CNIFP
-------------------------------------------------------
Waipa CNIFP
-------------------------------------------------------
Kawerau FCF
-------------------------------------------------------
Kawerau - stems FCF
-------------------------------------------------------
KPP - logs CNIFP
-------------------------------------------------------
Murupara - Stems FCF/CNIFP
-------------------------------------------------------
Rainbow Mt FCF
-------------------------------------------------------
Mobile FCF
-------------------------------------------------------
Tauhara FCF
-------------------------------------------------------
3. GANTRIES
LOCATION OF GANTRY OWNER OF GANTRY*
---------------------------------------------
Xxxx CNIFP
---------------------------------------------
Murupara FCF
---------------------------------------------
Waipa CNIFP
---------------------------------------------
Kawerau FCF
---------------------------------------------
* Subject to any asset verification exercise undertaken pursuant to
clause 7.2.
Transition Deed 44
SCHEDULE 2
SURPLUS FCF BUSINESS ASSETS REGISTER
Transition Deed 45
SCHEDULE 3
SURPLUS FCF LEASED VEHICLES
Transition Deed 46
SCHEDULE 4
CNIFP BUSINESS ASSETS REGISTER
Transition Deed 47
SCHEDULE 5
EXPORT PROTOCOLS
1. From 1 July 2003, ExportCo will operate a two month "soft transition
start up" (the "START-UP PERIOD") where CNIFP can continue to produce
product for planned and scheduled FCF sales/commitments ("FCF SALES")
made for July and August 2003.
2. CNIFP will, by no later than 15 May 2003, provide to FCF an indication
in writing of the likely export grades and quantities of each grade
that CNIFP expects will be available for FCF to sell to export markets
during July 2003 and August 2003.
3. FCF will, within 5 Business Days of receiving CNIFP's written
indication under clause 2 of this schedule, advise CNIFP in writing of
the volumes and grades of forest products that FCF considers it will
require to meet the forecasted FCF Sales, together with an indicative
delivery schedule (setting out indicative delivery times by month by
week and by volume) and proposed shipping dates.
4. CNIFP shall, within 5 Business Days of receiving FCF's written advice
under clause 3 of this schedule, confirm to FCF in writing the volumes
and grades of forest products which CNIFP is prepared to supply to FCF
to meet the forecasted FCF Sales.
5. FCF shall ensure that all confirmed volume and grade of logs as advised
by CNIFP to FCF under clause 4 of this schedule for FCF Sales and
delivered by CNIFP to FCF under clause 6 of this schedule shall be sold
and shipped by FCF as soon as reasonably practicable following delivery
and in any case by no later than 30 September 2003. CNIFP acknowledges
that FCF may, in making export sales under these protocols, combine the
logs owned by CNIFP with other logs owned or managed by FCF or its
Affiliates, provided such combination will not adversely affect the
price or other terms of sale of the logs. FCF acknowledges and agrees
that, when selling the forest products supplied by CNIFP to FCF as
contemplated in this schedule:
(a) FCF shall treat the sale of such CNIFP forest products as if
they were FCF forest products of equivalent lengths and
grades; and
(b) if FCF wishes to regrade any forest products so supplied by
CNIFP, FCF shall not do so without first consulting with
CNIFP.
6. FCF will provide to CNIFP a weekly delivery schedule (that has been
prepared in a manner consistent with the indicative delivery schedule
and is otherwise consistent with clauses 3 and 4 of this schedule,
except to the extent that FCF and CNIFP, acting reasonably, otherwise
agree) 2 weeks in advance, and CNIFP will use its reasonable endeavours
to deliver to that schedule. CNIFP will be responsible for using its
reasonable endeavours to deliver forest products produced for FCF Sales
to the Port of Tauranga and in this regard CNIFP shall deal directly
with FCF. FCF will use all reasonable endeavours to assist CNIFP with
its transport obligations in respect of the supply of CNIFP forest
products to meet FCF Sales so long as this does not adversely affect
FCF's business.
7. If CNIFP is unable to supply the confirmed volume and grade of logs as
advised by CNIFP to FCF under clause 4 of this schedule for FCF Sales
CNIFP will promptly notify FCF of such inability. CNIFP may, at its
option and upon advice to FCF, purchase logs of equivalent grades from
an alternative supplier to make up the shortfall. If CNIFP does not so
notify FCF within 5 Business Days of its original notice of inability
to supply under this clause, FCF may purchase logs from an alternative
supplier to make up the shortfall. CNIFP will indemnify FCF for any
cost, expense or
Transition Deed 48
loss actually incurred on such purchase. Likewise, if FCF incurs a
loss, cost or expense through short shipment to a customer from such a
delivery shortfall by CNIFP, CNIFP will indemnify FCF for any such
loss, cost or expense actually incurred.
8. FCF will pay all proceeds of sale due to CNIFP in respect of its supply
of forest products to meet FCF Sales directly to CNIFP immediately upon
receipt, subject to FCF first being allowed to deduct from the relevant
sales proceeds all direct and indirect costs associated with each
relevant sale, including for this purpose any amounts payable to FCF
under clause 7 above in relation to that or any other FCF Sale. In no
circumstances will FCF be entitled to charge CNIFP a fee of any kind,
nor a sales margin, in respect of the making of FCF Sales other than
the pro rata recovery of indirect costs.
9. Subject to any advice to the contrary from CNIFP to FCF under clause 4
of this schedule, CNIFP shall in no circumstances be required, at any
time after 31 August 2003, to supply or make available to FCF any CNIFP
forestry products in FCF grades.
10. FCF will use all reasonable endeavours to procure that the price and
delivery terms of FCF Sales are no less favourable than such equivalent
price and delivery terms that FCF has itself committed to sell its own
exported forest products in the relevant months.
11. In accounting for the sales, FCF shall provide CNIFP with all
reasonable details of the terms of the relevant FCF Sales, including
details regarding grade, market, price, payment terms and customer
identity (but not other customer details).
12. CNIFP and FCF will work together in good faith to coordinate the
supply, payment and documentation of the volume produced to meet FCF
Sales.
13. Any surplus production and unallocated volume produced from 1 July 2003
will be cut to ExportCo grades. No FCF grades will be cut post 31
August 2003 - however, practicably it is expected that the cut off will
likely to be earlier eg 20 August 2003.
14. Where practical, FCF/CNIFP/ExportCo will cooperate on operational
issues. However, the general principle is that both FCF and ExportCo
will manage their own operations independently.
15. FCF will allow CNIFP volume arriving by train to the Port of Tauranga
to use the current FCF rail siding during the Start-up Period.
16. During the Start-up Period, CNIFP can continue to use for product
committed to FCF Sales FCF log specifications and grades, stencils and
identification markings relating to export forest products which FCF,
as at the Transitional Date, utilises in respect of forest products
sourced from the CNIFP forest estate which are exported by FCF.
Transition Deed 49
SCHEDULE 6
CROWN FORESTRY LICENCES
A. ROTOEHU FOREST
1. (a) CFL: CT 00X/000, Xxxx Xxxxx
(b) Variation: B 371196.24
(c) Variation: B 371196.25
(d) Variation: B 371196.27
(e) Variation: B 558475.13
2. (a) CFL: CT 00X/000, XXXX XXXXX
(b) Variation: B 371196.60
(c) Variation: B 371196.61
(d) Variation: B 371196.63
(e) Variation: B 558475.27
B. WHAKAREWAREWA FOREST
1. (a) CFL: CT 60D/750 WHAKA BLOCK
(b) Variation: B 475395.12
(c) Variation: B 475395.13
(d) Variation: B 475395.15
(e) Variation: B 558475.29
2. (a) CFL: CT 00X/000 XXXXXXXXX XXXXX
(b) Variation: 1 (EXECUTED VARIATION BUT NOT IN REGISTRABLE
FORM)
(c) Variation: 2 (EXECUTED VARIATION BUT NOT IN REGISTRABLE
FORM)
(d) Variation: 3 (EXECUTED VARIATION BUT NOT IN REGISTRABLE
FORM)
(e) Variation: 4 (EXECUTED VARIATION BUT NOT IN REGISTRABLE
FORM)
Transition Deed 50
3. (a) CFL: CT 00X/00 XXXXXXXX XXXXX
(b) Variation: B 371196.28
(c) Variation: B 371196.29
(d) Variation: B 371196.31
(e) Variation: B 558475.39
C. KAINGAROA FOREST
1. (a) CFL: CT 60D/550 NORTH BOUNDARY
(b) Variation: B 475395.7
(c) Variation: B 475395.8
(d) Variation: B 475395.10
(e) Variation: B 558475.47
2. (a) CFL: CT 52D/400 TOTARA BLOCK
(b) Variation: B 371196.12
(c) Variation: B 371196.13
(d) Variation: B 371196.15
(e) Variation: B 558475.15
3. (a) CFL: CT 00X/000 XXXXXXXXXXXX XXXXX
(b) Variation: B 371196.16
(c) Variation: B 371196.17
(d) Variation: B 371196.19
(e) Variation: B 558475.33
4. (a) CFL: CT 57A/750 REPOROA BLOCK
(b) Variation: B 475395.2
(c) Variation: B 475395.3
(d) Variation: B 475395.5
(e) Variation: B 558475.31
Transition Deed 51
5. (a) CFL: CT 39C/764 CAVE
(b) Variation: B 371196.64
(c) Variation: B 371196.65
(d) Variation: B 371196.67
(e) Variation: B 558475.49
6. (a) CFL: CT 00X/000 XXXXXXXXXX
(b) Variation: B 371196.36
(c) Variation: B 371196.37
(d) Variation: B 371196.39
(e) Variation: B 558475.17
7. (a) CFL: CT 55B/500 FLAXY CREEK
(b) Variation: B 371196.40
(c) Variation: B 371196.41
(d) Variation: B 371196.43
(e) Variation: B 558475.35
(f) Deed Granting Right of Way dated 8 September 1998 relating
to Flaxy Creek and Whirinaki
8. (a) CFL: CT 52D/500 WAIMAROKE
(b) Variation: B 371196.20
(c) Variation: B 371196.21
(d) Variation: B 371196.23
(e) Variation: B 558475.23
9. (a) CFL: CT 00X/0 XXXXX XXXXX
(b) Variation: B 371196.56
(c) Variation: B 371196.57
Transition Deed 52
(d) Variation: B 371196.59
(e) Variation: B 558475.45
10. (a) CFL: CT 56D/50 PUKURIRI BLOCK
(b) Variation: B 371196.44
(c) Variation: B 371196.45
(d) Variation: B 371196.47
(e) Variation: B 558475.31
(f) Memorandum of Consent relating to an error in the land
area recorded in the licence.
D. WHIRINAKI - KAINGAROA FOREST
1. (a) CFL: CT 57A/60 WHIRINAKI BLOCK
(b) Variation: B 371196.52
(c) Variation: B 371196.53
(d) Variation: B 371196.55
(e) Variation: B 558475.41
(f) Compensation Certificate: B457481.1
(g) Deed Granting Right of Way dated 8 September 1998 relating
to Flaxy Creek and Whirinaki.
E. HOROHORO FOREST
1. (a) CFL: CT 70B/81
(b) Variation: 1 (EXECUTED VARIATION BUT NOT IN REGISTRABLE
FORM)
(c) Variation: 2 (EXECUTED VARIATION BUT NOT IN REGISTRABLE
FORM)
(d) Variation: 3 (EXECUTED VARIATION BUT NOT IN REGISTRABLE
FORM)
(e) Variation: 4 (EXECUTED VARIATION BUT NOT IN REGISTRABLE
FORM)
F. CRATER FOREST
1. (a) CFL: CT 51D/850
(b) Variation: B 371196.2
Transition Deed 53
(c) Variation: B 371196.3
(d) Variation: B 371196.7
(e) Variation: B 558475.25
G. MAROTIRI FOREST
1. (a) CFL: CT 51D/900
(b) Variation: B 371196.8
(c) Variation: B 371196.9
(d) Variation: B 371196.11
(e) Variation: B 558475.19
(f) Right Of Way Easement 55D/138
H. WAIMIHIA FOREST
1. (a) CFL: CT 56D/200 NORTH BLOCK
(b) Variation: B 371196.48
(c) Variation: B 371196.49
(d) Variation: B 371196.51
(e) Variation: B 558475.43
2. (a) CFL: CT 00X/000 XXXXX XXXXX
(b) Variation: B 371196.32
(c) Variation: B 371196.33
(d) Variation: B 371196.35
(e) Variation: B 558475.21
Transition Deed 54
SCHEDULE 7
CNIFP INFORMATION
BUSINESS AREA Process MASTER DATA DESCRIPTION
---------------------------------------------------------------------------------------------------------------------------------
1 Environmental Monitoring data Stream Assessments, Kaingaroa Streamside management policy,
Assessments and monitoring results of indigenous remnants,
Archaeological survey results, Recreation use, non wood products
---------------------------------------------------------------------------------------------------------------------------------
2 Environmental Flora and Fauna surveys.
---------------------------------------------------------------------------------------------------------------------------------
3 Environmental Historic protected sites and any authorisations to modify,
(Authority, and conditions, Other documentation referred to in
the application.
---------------------------------------------------------------------------------------------------------------------------------
4 Environmental Resource All resource consents and associated documents and correspondence
Consents relating to CNIFP Forests
---------------------------------------------------------------------------------------------------------------------------------
5 Environmental Stakeholders Agreements and accords with Iwi, ODC, Fish and Game, QEII,
Transpower, Transit NZ, District Road Authorities, Recreation
users, Other stakeholders
---------------------------------------------------------------------------------------------------------------------------------
6 Environmental Stakeholders Organisation, Names, Contact Details, Consultation notes, Agreement
with Stakeholders.
---------------------------------------------------------------------------------------------------------------------------------
7 Environmental Encumbrances Details of any encumbrances
---------------------------------------------------------------------------------------------------------------------------------
8 Environmental Information and Alternative species, Chemicals, Operational techniques, H&S
results of Trialsinitiatives, Sustainability, (inter rotational soil studies,
undertaken on compaction studies), Other trials with social or environmental
CNIFP estate ramifications.
---------------------------------------------------------------------------------------------------------------------------------
9 Finance Billing, AR Customer current balances relating to CNIFP sales
---------------------------------------------------------------------------------------------------------------------------------
10 Finance Accounts Payable Suppliers Contracts, address, phone, contacts, current balances
---------------------------------------------------------------------------------------------------------------------------------
11 Finance Accounts Payable History Transactions for the past 2 years
---------------------------------------------------------------------------------------------------------------------------------
12 Finance Accounts History Transactions for the past 2 years for sales analysis
Receivable
---------------------------------------------------------------------------------------------------------------------------------
13 Finance Accounts Payable Transport Rates Distance from Harvest area to Weighbridge and Customers.
Weighbridge to Customer. classification on/off highway,
singles/doubles/binwood/stems, rate, , rate model,
---------------------------------------------------------------------------------------------------------------------------------
14 Finance Accounts payable Transport Rates Rail rate schedule
---------------------------------------------------------------------------------------------------------------------------------
15 Finance Accounts Payable Harvesting rates Harvest Rate schedule, Contract Rates Agreements valid at 1st
Jul 03
---------------------------------------------------------------------------------------------------------------------------------
16 Finance Accounts Payable Loading Rates Rate
for cold deck
operations
---------------------------------------------------------------------------------------------------------------------------------
17 Finance Accounts Payable Other rates Rate ID Rate
(hourly)
---------------------------------------------------------------------------------------------------------------------------------
18 Finance Accounts Payable Roading Rate schedule
---------------------------------------------------------------------------------------------------------------------------------
19 Finance Accounts Payable Forestry Manday rates, Costings programmes, machinery rates by operation
Operation rates type
---------------------------------------------------------------------------------------------------------------------------------
20 Finance/Sales & Invoice History SRMFS data. Can be separated by source. Deliveries.
Distribution transactions
---------------------------------------------------------------------------------------------------------------------------------
21 Financial General Financial Year Detailed & Summary Trial Balance.
and period
---------------------------------------------------------------------------------------------------------------------------------
Transition Deed 55
BUSINESS AREA Process MASTER DATA DESCRIPTION
---------------------------------------------------------------------------------------------------------------------------------
22 Financial Fixed Assets Assets Asset register, classes depreciation rates.
---------------------------------------------------------------------------------------------------------------------------------
23 Forestry Management Plans Contorta control plan, stand/operational level data to support F04
management plan.
---------------------------------------------------------------------------------------------------------------------------------
24 Forestry Management Stands ID, treatment, history, regime, normal stand data, includes all
GIS layers relevant to CNIFP estate.
---------------------------------------------------------------------------------------------------------------------------------
25 Forestry Management Constraints Catchments
---------------------------------------------------------------------------------------------------------------------------------
26 Forestry Management Constraints PSPs, locations and data service agreement
---------------------------------------------------------------------------------------------------------------------------------
27 Forestry Management Constraints Utilities - power/gas/canals, location and agreements for
management
---------------------------------------------------------------------------------------------------------------------------------
28 Forestry Inventory Heighting/Block Location, standID, data, rules for collection, plot locations
Check
---------------------------------------------------------------------------------------------------------------------------------
29 Forestry Inventory Post Operation Location, standID, data, plot location, data collection rules,
Inspection summary results.
---------------------------------------------------------------------------------------------------------------------------------
30 Forestry Inventory Mid rotation Location, standID, data, quality code dictionary, cutting
strategy, plot location
---------------------------------------------------------------------------------------------------------------------------------
31 Forestry Inventory PHA Location, standID, data, cutting strategy, quality code
dictionary, plot location
---------------------------------------------------------------------------------------------------------------------------------
32 Forestry Inventory Cutting strategies ID, Description, Purpose, quality code dictionaries
---------------------------------------------------------------------------------------------------------------------------------
33 Forestry Management Yield tables Formulae, values, applications, stand linkages to croptype
---------------------------------------------------------------------------------------------------------------------------------
34 Forestry Obtain all Records of Land Privileges, Access Rights, Grazing
Licences, Covenant Areas and Restricted Areas
---------------------------------------------------------------------------------------------------------------------------------
35 Forestry Crown Forest Licences and JV agreements for PokoPoko, Nursery, and
Spirit of NZ Joint Venture at Rotoehu.
---------------------------------------------------------------------------------------------------------------------------------
36 Forestry Obtain Valuation and Rating Records.
---------------------------------------------------------------------------------------------------------------------------------
37 Forestry Obtain GIS Spatial and Attribute Data
---------------------------------------------------------------------------------------------------------------------------------
38 Forestry Fire protection Fire Plan Fire Plan
---------------------------------------------------------------------------------------------------------------------------------
39 Finance Management Capitalised cost schedule
---------------------------------------------------------------------------------------------------------------------------------
40 Forestry Management Stand maps Paper based stand maps and operational data.
---------------------------------------------------------------------------------------------------------------------------------
41 Forestry Management Aerial Photographs Historic aerial photos
---------------------------------------------------------------------------------------------------------------------------------
42 Harvesting Ahead Position FRD File
---------------------------------------------------------------------------------------------------------------------------------
43 Harvesting History Daily crew Crew, weekly production figures prev 6 months.
production from
CNIFP forests
---------------------------------------------------------------------------------------------------------------------------------
44 Harvesting Harvesting plan Three year cutting plan clearfell
---------------------------------------------------------------------------------------------------------------------------------
45 Harvesting Five Year Thinning Plan
---------------------------------------------------------------------------------------------------------------------------------
46 Harvesting F04 thinning schedule and yield estimates
---------------------------------------------------------------------------------------------------------------------------------
47 Harvesting Future Harvest Planning Notes Including Resource Consents
---------------------------------------------------------------------------------------------------------------------------------
48 Harvesting Historic Harvest planning Notes including resource consents
---------------------------------------------------------------------------------------------------------------------------------
49 Harvesting F03 Contractor Allocation and Rate Schedule
---------------------------------------------------------------------------------------------------------------------------------
50 Harvesting Aerial Photographs for Operations Purposes.
---------------------------------------------------------------------------------------------------------------------------------
51 S&OP S&OP Crew location and details on Operational date
---------------------------------------------------------------------------------------------------------------------------------
52 S&OP S&OP SOP round for Production by Harvest area down to the block ID and SOP Grade
Budget level for F04
---------------------------------------------------------------------------------------------------------------------------------
53 Sales & Inventory Product Details Product ID, description, rates, type, length grade, treatment,
Distribution marketing specification [knots, weep, SED, LED error ovality,
density] Agespec, for sales to FCF and Export sales via FCF and
stock as at Operational date.
---------------------------------------------------------------------------------------------------------------------------------
54 Sales & &Inventory Stocks Product ID, Location, Units, Quantity Age
Distribution
---------------------------------------------------------------------------------------------------------------------------------
55 Sales & &Dispatch Weighbridges ID, operator contracts
Distribution
---------------------------------------------------------------------------------------------------------------------------------
Transition Deed 56
BUSINESS AREA Process MASTER DATA DESCRIPTION
---------------------------------------------------------------------------------------------------------------------------------
56 Sales & Dispatch Trucks & trailers , Tare weight by truck,
Distribution
---------------------------------------------------------------------------------------------------------------------------------
57 Sales & S&OP Conversion From nits, to units, basis, date applicable for 12 months
Distribution factors historic.
---------------------------------------------------------------------------------------------------------------------------------
58 Sales & S&OP Sonic standards Parameters, grade
Distribution
---------------------------------------------------------------------------------------------------------------------------------
59 Sales & S&OP SOP Family Product details vs SOP Family
Distribution
---------------------------------------------------------------------------------------------------------------------------------
60 KPP / Staff HR Personnel Existing Employment Agreement Terms/Conditions
---------------------------------------------------------------------------------------------------------------------------------
61 KPP / Staff HR Personnel Job Descriptions
---------------------------------------------------------------------------------------------------------------------------------
62 KPP / Staff HR Personnel Employee/Position/Remuneration
---------------------------------------------------------------------------------------------------------------------------------
63 KPP / Staff HR Personnel Allowances
---------------------------------------------------------------------------------------------------------------------------------
64 KPP / Staff HR Personnel Service length
---------------------------------------------------------------------------------------------------------------------------------
65 KPP / Staff HR Personnel Leave records/status
---------------------------------------------------------------------------------------------------------------------------------
66 KPP / Staff HR Personnel Special leave
---------------------------------------------------------------------------------------------------------------------------------
67 KPP / Staff HR Personnel Employee benefits
---------------------------------------------------------------------------------------------------------------------------------
68 KPP / Staff HR Personnel Contact details
---------------------------------------------------------------------------------------------------------------------------------
69 KPP / Staff HR Personnel Next of Kin etc
---------------------------------------------------------------------------------------------------------------------------------
70 KPP / Staff HR Personnel Medical records etc
---------------------------------------------------------------------------------------------------------------------------------
71 KPP / Staff HR Personnel H&S records
---------------------------------------------------------------------------------------------------------------------------------
72 KPP / Staff HR Personnel ACC & work related accident/incidents
---------------------------------------------------------------------------------------------------------------------------------
73 KPP / Staff HR Personnel Performance info: Skill/Competency
---------------------------------------------------------------------------------------------------------------------------------
74 KPP / Staff HR Personnel Training records
---------------------------------------------------------------------------------------------------------------------------------
75 KPP / Staff HR Personnel Personnel files
---------------------------------------------------------------------------------------------------------------------------------
76 KPP / Staff Staff H&S/ops Process performance and safety information
---------------------------------------------------------------------------------------------------------------------------------
77 KPP / Staff Staff H&S/ops Manufacturing process information
---------------------------------------------------------------------------------------------------------------------------------
78 KPP / Staff Staff H&S/ops Machine set-up/run parameters
---------------------------------------------------------------------------------------------------------------------------------
79 KPP / Staff Staff H&S/ops Standard operating procedures
---------------------------------------------------------------------------------------------------------------------------------
80 KPP / Staff Staff H&S/ops Production sheets
---------------------------------------------------------------------------------------------------------------------------------
81 KPP Ops Yard contracts, Maintenance contracts.
---------------------------------------------------------------------------------------------------------------------------------
82 KPP Ops Maintenance history, and plans.
---------------------------------------------------------------------------------------------------------------------------------
83 KPP / Staff Staff H&S/ops Material Safety Data Sheets
---------------------------------------------------------------------------------------------------------------------------------
84 Waipa/MT HR Personnel Existing Employment Agreement Terms/Conditions
---------------------------------------------------------------------------------------------------------------------------------
85 Waipa/MT HR Personnel Job Descriptions
---------------------------------------------------------------------------------------------------------------------------------
86 Waipa/MT HR Personnel Employee/Position/Remuneration
---------------------------------------------------------------------------------------------------------------------------------
87 Waipa/MT HR Personnel Allowances
---------------------------------------------------------------------------------------------------------------------------------
88 Waipa/MT HR Personnel Service length
---------------------------------------------------------------------------------------------------------------------------------
89 Waipa/MT HR Personnel Leave records/status
---------------------------------------------------------------------------------------------------------------------------------
90 Waipa/MT HR Personnel Special leave
---------------------------------------------------------------------------------------------------------------------------------
91 Waipa/MT HR Personnel Employee benefits
---------------------------------------------------------------------------------------------------------------------------------
92 Waipa/MT HR Personnel Contact details
---------------------------------------------------------------------------------------------------------------------------------
93 Waipa/MT HR Personnel Next of Kin etc
---------------------------------------------------------------------------------------------------------------------------------
94 Waipa/MT HR Personnel Medical records etc
---------------------------------------------------------------------------------------------------------------------------------
95 Waipa/MT HR Personnel H&S records
---------------------------------------------------------------------------------------------------------------------------------
96 Waipa/MT HR Personnel ACC & work related accident/incidents
---------------------------------------------------------------------------------------------------------------------------------
97 Waipa/MT HR Personnel Performance info: Skill/Competency
---------------------------------------------------------------------------------------------------------------------------------
98 Waipa/MT HR Personnel Training records
---------------------------------------------------------------------------------------------------------------------------------
99 Waipa/MT HR Personnel Personnel files
---------------------------------------------------------------------------------------------------------------------------------
100 Waipa/MT Staff H&S/ops safety information
---------------------------------------------------------------------------------------------------------------------------------
101 Waipa/MT Staff H&S/ops Machine set-up/run parameters
---------------------------------------------------------------------------------------------------------------------------------
102 Waipa/MT Staff H&S/ops Standard operating procedures
---------------------------------------------------------------------------------------------------------------------------------
103 Waipa/MT Staff H&S/ops Production sheets
---------------------------------------------------------------------------------------------------------------------------------
104 Waipa/MT Ops Yard contracts, Maintenance contracts.
---------------------------------------------------------------------------------------------------------------------------------
Transition Deed 57
BUSINESS AREA Process MASTER DATA DESCRIPTION
---------------------------------------------------------------------------------------------------------------------------------
105 Waipa/MT Ops Maintenance history, and plans.
---------------------------------------------------------------------------------------------------------------------------------
106 Waipa/MT Staff H&S/ops ACC history and status
---------------------------------------------------------------------------------------------------------------------------------
107 Waipa/MT Staff H&S/ops Material Safety Data Sheets
---------------------------------------------------------------------------------------------------------------------------------
108 Waipa/MT Sales Sales order data Current sales orders by product by customer by delivery date
---------------------------------------------------------------------------------------------------------------------------------
109 Waipa/MT Sales Forward orders Forward sales orders by product by customer by delivery date
---------------------------------------------------------------------------------------------------------------------------------
110 Waipa/MT Sales Sales History Historic sales by customer by product by date
---------------------------------------------------------------------------------------------------------------------------------
111 Waipa/MT Sales Claims Claims history
---------------------------------------------------------------------------------------------------------------------------------
112 Waipa/MT Sales Claims Current claims
---------------------------------------------------------------------------------------------------------------------------------
113 Waipa/MT Sales Claims Outstanding claims
---------------------------------------------------------------------------------------------------------------------------------
114 Waipa/MT Ops Maintenance Preventative maintenance system documentation
---------------------------------------------------------------------------------------------------------------------------------
115 Waipa/MT Ops Maintenance Preventative maintenance master data
---------------------------------------------------------------------------------------------------------------------------------
116 Waipa/MT Ops Maintenance Preventative maintenance transaction data
---------------------------------------------------------------------------------------------------------------------------------
117 Waipa/MT Finance Financial
templates Eg return to log calculation template
---------------------------------------------------------------------------------------------------------------------------------
118 Waipa/MT Ops Production Production reports in electronic form
reporting
---------------------------------------------------------------------------------------------------------------------------------
119 Waipa/MT Ops Production Spreadsheets
templates
---------------------------------------------------------------------------------------------------------------------------------
120 Waipa/MT Finance Procurement Central procurement master data - Relating to CNIFP Plants
---------------------------------------------------------------------------------------------------------------------------------
121 Waipa/MT Finance Procurement Central procurement transaction data - Relating to CNIFP Plants
---------------------------------------------------------------------------------------------------------------------------------
122 Waipa/MT Ops RAYOX Plant details and history requirements
---------------------------------------------------------------------------------------------------------------------------------
123 Waipa/MT Finance Working capital Working capital procedures
---------------------------------------------------------------------------------------------------------------------------------
124 Waipa/MT Ops Legal Agreements All legal agreements necessary for the continuous operation of the
plant
---------------------------------------------------------------------------------------------------------------------------------
125 Waipa/MT Ops Claims Claims to third parties
---------------------------------------------------------------------------------------------------------------------------------
126 Waipa/MT Finance Fixed assets Tax and book versions
---------------------------------------------------------------------------------------------------------------------------------
127 Waipa/MT Finance Debtors Debtors claims process and details
---------------------------------------------------------------------------------------------------------------------------------
128 Waipa/MT Staff H&S/ops Payroll Master file and transactions Xxxxx data - relating CNIFP Plants
---------------------------------------------------------------------------------------------------------------------------------
129 Waipa/MT Staff H&S/ops Policies HR policies and procedures
---------------------------------------------------------------------------------------------------------------------------------
Transition Deed 58
SCHEDULE 8
EXCLUSION FROM CNIFP IT
MAKE MODEL SERIAL NUMBER BIOS/DATE BIOS/MANUFACTURER DESKTOP/
NOTEBOOK
Dell Computer OptiPlex GX260 HB8Q61S 09/24/2002 Dell Computer Desktop
Corporation Corporation
Dell Computer OptiPlex GX260 HB8Q61S 09/24/2002 Dell Computer Desktop
Corporation Corporation
Dell Computer OptiPlex GX260 HB8Q61S 09/24/2002 Dell Computer Desktop
Corporation Corporation
Dell Computer OptiPlex GX260 HB8Q61S 09/24/2002 Dell Computer Desktop
Corporation Corporation
Dell Computer OptiPlex GX260 HB8Q61S 09/24/2002 Dell Computer Desktop
Corporation Corporation
Dell Computer OptiPlex GX260 BC9W61S 09/24/2002 Dell Computer Desktop
Corporation Corporation
Dell Computer OptiPlex GX260 HB8Q61S 09/24/2002 Dell Computer Desktop
Corporation Corporation
Dell Computer Latitude C510 GRZ761S 08/17/2002 Dell Computer Notebook
Corporation Corporation
Dell Computer Latitude C610 JL9R61S 11/05/2002 Dell Computer Notebook
Corporation Corporation
Dell Computer Latitude C510 GRZ761S 08/17/2002 Dell Computer Notebook
Corporation Corporation
Dell Computer Latitude C610 16RZ61S 11/05/2002 Dell Computer Notebook
Corporation Corporation
Dell Computer Latitude C610 16RZ61S 11/05/2002 Dell Computer Notebook
Corporation Corporation
Dell Computer Latitude C600 G1KX21S 4/12/2001 Dell Computer Notebook
Corporation Corporation
Waipa Mill, Meridian phone system, 15 keyphones, 100
extension capability
KPP, NEC phone system, 24 extension capacity,
2 keyphones
Mt Processing, 5 keyphones, 24
extension capacity
15 Teklogix Handheld terminals, 6
teklogix base station
together with any software loaded on the devices identified above
Transition Deed 59
