EX-4.2 4 dex42.htm SHARE AND ASSET SALE DEED Share and Asset Sale Deed

Exhibit 2

 

CLAYTON UTZ

 

Share and Asset Sale Deed - Hospitals

(excluding collocated and privatised hospitals)

 

Mayne Group Limited ABN 56 004 073 410

MGL

 

Mayne Healthcare Holdings Pty Limited ABN 16 078 954 631

MHH

 

Australian Newco Holdings Pty Limited ACN 106 722 347

Buyer

 

The entities listed in Schedule 14

Other Indemnifying Parties

 

If you have any questions about the details of this document

please contact Rod Halstead on + 61 2 9353 4000

 

Clayton Utz Lawyers

Levels 22-35 No. 1 O’Connell Street Sydney NSW 2000 Australia

PO Box H3 Australia Square Sydney NSW 1215

T + 61 2 9353 4000 F + 61 2 8220 6700

 

www.claytonutz.com

 

Our reference Rod Halstead/Jonathan Algar/21724491

 

Liability limited by the Solicitors Scheme, approved under the Professional Standards Act 1994 (NSW) and by our Terms of Engagement


Table of Contents

 

1.

   Definitions and interpretation    2
     1.1    Definitions    2
     1.2    Procurement by MGL    15
     1.3    Umbrella Deed    15
     1.4    Other Indemnifying Parties    16

2.

   Sale of Sale Shares and Assets    16
     2.1    Sale of Sale Shares    16
     2.2    Sale of Assets    16
     2.3    Purchase Price    16
     2.4    Missing Titles    16
     2.5    Sold Properties    16

3.

   Completion    17
     3.1    Completion place and date    17
     3.2    Seller’s obligations on Completion    17
     3.3    Buyer’s obligations on Completion    19
     3.4    Delivery    20
     3.5    Title    20
     3.6    Risk    20
     3.7    Interdependence    20
     3.8    Notice to complete    20
     3.9    Conduct until Sale Shares are registered    21
     3.10    Storage of Disclosure Material    21

4.

   Novation and Assignment of Hospital Business Contracts -Seller Group and Equipment Leases -
Seller Group
   21
     4.1    Novation or assignment    21
     4.2    Obligations pending or if no novation or assignment    22
     4.3    Obligations if novation or assignment is not possible    22
     4.4    Indemnities    23
     4.5    Transfer of Assets under Equipment Leases - Seller Group    23
     4.6    Health Fund Contracts    24
     4.7    Key Contracts    25

5.

   Novation and Assignment of Leases- Seller Group    25
     5.1    Novation or assignment on Completion    25
     5.2    Obligations pending or if no novation or assignment    25
     5.3    Obligations if novation or assignment is not possible    26
     5.4    Indemnities    26

6.

   Contracts - Group    27
     6.1    Consent to change in control    27
     6.2    Obligations following Completion    27

7.

   Release of Seller’s Guarantees    27
     7.1    Release    28
     7.2    Indemnity    28

8.

   Shared arrangements    28
     8.1    Shared Contracts    28

9.

   Employees and Independent Contractors    29
     9.1    Provision of employment or engagement    29
     9.2    Payments to Employees and Independent Contractors    29


     9.3    Recognition of prior service    30
     9.4    Indemnity for Employees and Independent Contractors    30
     9.5    Pre-Completion Employee Arrangements    31
     9.6    Disclosure of industrial developments    31
     9.7    During the Liaison Period, if:    31
     9.8    (each an “Industrial Event”), then MGL must:    31
     9.9    Management of industrial relations and disputes    32
     9.10    Risk mitigation    32
     9.11    Costs of Applications    33
     9.12    Employee Lists and Independent Contractors    33

10.

   Superannuation    33

11.

   Trade Debts - Seller Group    35

12.

   Plant and equipment    35

13.

   Liabilities    36

14.

   Tax    36
     14.1    Tax Indemnity    36
     14.2    Rights of the Buyer Group Members and Enforcement of the Tax Indemnity    36
     14.3    Restrictions on claims under the Tax Indemnity    36
     14.4    Timing of payments    37
     14.5    Late Payments    37
     14.6    Notice of Potential Tax Claims and Tax Claims Procedure    37
     14.7    Refunds    39
     14.8    Interest received from a Revenue Authority    40
     14.9    Expert determination    40
     14.10    Tax Returns    40
     14.11    Loan Amounts    41
     14.12    Limits    41
     14.13    Tax office ruling    41

15.

   Pay as you go (PAYG) instalments    42
     15.1    Liability for the PAYG Instalment    42
     15.2    Payment of the PAYG Instalment for the Pre-Completion Quarter    42
     15.3    Payment of the PAYG Instalment for the Completion Quarter    42
     15.4    Calculation of the PAYG Credit for the PAYG Instalment for the Pre-Completion Quarter    42
     15.5    Calculation of PAYG Credit for the PAYG Instalment for the Completion Quarter    42
     15.6    GIC payable in respect of the PAYG Instalment    43
     15.7    Notification of PAYG Instalment    43
Schedule 1 Hospital Companies and Subsidiaries    6
Schedule 2 Sale Shares    8
Schedule 3 Hospitals    9
Schedule 4 Seller’s Guarantees    11
Schedule 5 Hospital Business Contracts    12
Schedule 6 Business Names - Seller Group    15


Schedule 7 Intellectual Property

   16

Schedule 8 Premises

   18

Schedule 9 Leases

   24

Schedule 10 - Not Used Schedule 11 - Not used

   39

Schedule 11 - Not used

   40

Schedule 12 - Not used

   41

Schedule 12 - Not used

   41

Schedule 13 Equipment Leases - Seller Group

   42

Schedule 14 - Other Indemnifying Parties

   44

Annexure A Diagnostics Agreements

   45

Annexure B Shared Services Agreement

   46

Annexure C Licence

   47

1.

   Definitions and interpretation    47
     1.1    Definitions    47
     1.2    Interpretation    48

2.

   Licence to use property    48
     2.1    Licence    48
     2.2    No Exclusive Possession    48
     2.3    Personal Rights Only    49

3.

   Licence fee    49
     3.1    Licence Fee    49
     3.2    Adjustment of Licence Fee    49

4.

   Condition and maintenance of Licensed Area    49
     4.1    Condition and Use of Licensed Area    49
     4.2    Licensee Accepts Risk    49
     4.3    Maintenance and Care    50
     4.4    Compliance with Directions    50
     4.5    Compliance with Legislation and Authorities    50

5.

   Insurance and indemnities    50
     5.1    Insurance    50
     5.2    Indemnities    50

6.

   Termination of Agreement    51
     6.1    Breach of Terms and Conditions    51
     6.2    Termination of Lease    51
     6.3    Licensee to Vacate    51

7.

   Holding over    51

8.

   Conditional Agreement    51
     8.1    Landlord’s Consent    51
     8.2    Completion under Share and Asset Sale Deed    52


9.

   General    52
     9.1    No Breach of Lease    52
     9.2    No Assignment by Licensee    52
     9.3    Assignment by the Licensor    52
     9.4    Notices    52
     9.5    Severability    52
     9.6    No Variation of Agreement    52
     9.7    Legal Costs And Disbursements    52
     9.8    GST    53

Schedule

   54

 

Annexure A - Diagnostics Agreements

 

Part A Diagnostics Agreement Table

 

Part B Diagnostic Imaging and Pathology Lease

 

Part C Right of First and Last Refusal Deed

 

Part D Diagnostic Imaging Service Level Agreement

 

Part E Pathology Service Level Agreement

 

Annexure B - Shared Services Agreement

 

Annexure C - Licence


Deed dated 21/10/ 2003

 

Parties

   Mayne Group Limited ACN 004 073 410 of Level 2, 390 St Kilda Road, Melbourne, Victoria, 3004, Australia (“MGL”)
     Mayne Healthcare Holdings Pty Limited ACN 967 954 631 of Level 21, 390 St Kilda Road, Melbourne, Victoria 3004 (“MHH”)
     (MGL and MHH, together, the “Sellers”)
     Australian Newco Holdings Pty Limited ACN 106 722 347 of c/- Minter Ellison, 88 Phillip Street, Sydney, NSW 2000 (“Buyer”)
     and
     Joondalup Hospital Pty Limited ACN 106 723 193 of c/- Minter Ellison, 88 Phillip Street, Sydney, New South Wales 2000, Australia;
     Port Macquarie Hospital Pty Limited ACN 106 723 399 of c/- Minter Ellison, 88 Phillip Street, Sydney, New South Wales 2000, Australia;
     Logan Hospital Pty Limited ACN 106 723 406 of c/- Minter Ellison, 88 Phillip Street, Sydney, New South Wales 2000, Australia;
     Melbourne Hospital Pty Limited ACN 106 723 415 of c/o Minter Ellison, 88 Phillip Street, Sydney, New South Wales 2000, Australia;
     Noosa Privatised Hospital Pty Limited ACN 106 723 380 of c/- Minter Ellison, 88 Phillip Street, Sydney, New South Wales 2000, Australia;
     Caboolture Hospital Pty Limited ACN 106 723 219 of c/- Minter Ellison, 88 Phillip Street, Sydney, New South Wales 2000, Australia;
     Frances Perry Hospital Pty Limited ACN 106 723 228 of c/- Minter Ellison, 88 Phillip Street, Sydney, New South Wales 2000, Australia;
     Armidale Hospital Pty Limited ACN 106 723 200 of c/- Minter Ellison, 88 Phillip Street, Sydney, New South Wales 2000, Australia; and
     P.O.W. Hospital Pty Limited ACN 106 723 871 of c/- Minter Ellison, 88 Phillip Street, Sydney, New South Wales 2000, Australia (collectively with the Buyer, the “Newco Group” and each a “Newco Group Member”)

 

Recitals

 

A. MHH and MGL are the holding companies of those companies set out in Part 1 of Schedule 1 (the “Hospital Companies”).

 

B. The Sellers are the registered and beneficial owners of the number of shares in the issued share capital of the Hospital Companies as set out in Schedule 2 (“Sale Shares”).

 

C. The Sellers have agreed to sell and the Buyer has agreed to buy the Sale Shares upon the terms and conditions of this Deed.

 

D. The Seller Group owns certain assets which are used in carrying on the Hospital Business. MGL has agreed to sell or procure the sale of and the Buyer has agreed to purchase these assets upon the terms and conditions of this Deed.

 

E. On or about the date of this Deed, the parties have entered into an Umbrella Deed in relation to the sale of the Australian Hospital Business.


The parties agree

 

1. Definitions and interpretation

 

1.1 Definitions

 

In this document:

 

“Accruals” has the meaning given in the Umbrella Completion Accounting Principles.

 

“Accruals Liability - Seller Group” means all obligations, whether arising before, on or after Completion exclusively in relation to the Hospital Business, in respect of or in connection with the Accruals which, but for this Deed, MGL or relevant Seller Group Member would be obliged or liable to pay, carry out, perform, observe or complete after Completion.

 

“Agreement” means this document including its Schedules and Annexures.

 

“Assets” means individually and collectively:

 

  (a) Goodwill;

 

  (b) the Fixed Assets;

 

  (c) the Prepayments;

 

  (d) the Intellectual Property Rights;

 

  (e) the right to be registered as proprietor of the Business Names;

 

  (f) the Business Records;

 

  (g) the Trade Debts;

 

  (h) the Stock;

 

  (i) the Seller Group’s right, title and interest in the Hospital Business Contracts;

 

  (j) the Seller Group’s right, title and interest in the Equipment Leases; and

 

  (k) the Seller Group’s right, title and interest in the Leases.

 

“Assets - Seller Group” means individually and collectively:

 

  (a) Goodwill - Seller Group;

 

  (b) the Fixed Assets - Seller Group;

 

  (c) the Prepayments - Seller Group;

 

  (d) the Intellectual Property Rights - Seller Group;

 

  (e) the right to be registered as proprietor of the Business Names - Seller Group;

 

  (f) the Business Records - Seller Group;

 

  (g) the Trade Debts - Seller Group;


  (h) the Stock - Seller Group;

 

  (i) the Seller Group’s right, title and interest in the Hospital Business Contracts - Seller Group;

 

  (j) the Seller Group’s right, title and interest in the Equipment Leases - Seller Group; and

 

  (k) the Seller Group’s right, title and interest in the Leases - Seller Group,

 

and all other assets which are owned by the Seller Group and used exclusively in the conduct of the Hospital Business but excludes the Excluded Assets.

 

“Assume” in relation to the Buyer means the Buyer must assume, pay, carry out, perform, observe, complete and comply with each and every obligation and Liability as if each and every one of those obligations and Liabilities were (to the extent not already performed) the obligation and Liability of the Buyer.

 

“Assumed Liabilities” means:

 

  (a) the Accruals Liability - Seller Group;

 

  (b) the Hospital Business Contracts Liability - Seller Group;

 

  (c) the Lease Liability - Seller Group;

 

  (d) the Equipment Lease Liability - Seller Group;

 

  (e) the Trade Creditors Liability - Seller Group;

 

  (f) the Independent Contractor Liability; and

 

  (g) the Employee Liability,

 

to the extent that they relate to the Hospital Business only but excludes the Excluded Liabilities.

 

“Australian Hospital Business” has the meaning given in the Umbrella Deed.

 

“Business Day” means a day, not being a Saturday, Sunday or public holiday, on which banks are generally open for business in the State.

 

“Business Names” means the business names exclusively used in respect of the Hospital Business, but excluding those containing a Reserved Name.

 

“Business Names - Seller Group” means the Business Names registered to a Seller Group Member identified in Schedule 6.

 

“Business Records” means all current operational records exclusively relating to the Assets or the Hospital Business, including:

 

  (a) service, promotional, descriptive, sales, trade and application literature and other advertising material and catalogues;

 

  (b) records relating to the Trade Debts;

 

  (c) supplier lists;


  (d) stock records, manufacturing, engineering and purchasing data sheets and bills of material;

 

  (e) wages, employment benefit, other benefit, payroll and personnel records of the Employees;

 

  (f) all computer software exclusively used in or relating exclusively to the Hospital Business and:

 

  (i) owned by any Seller Group Member or Group Member; or

 

  (ii) licensed to any Seller Group Member or Group Member under a Hospital Business Contract which can be lawfully transferred to the Buyer,

 

together with any computer records, including source code, object code, programmers notes and technical, functional and performance-related documents, associated with such software and owned by, or licensed under the applicable Hospital Business Contract to the relevant Seller Group Member or Group Member;

 

  (g) all records of the Hospital Business Contracts and Equipment Leases;

 

  (h) copies of lease documentation, correspondence and documents relating to on-going issues and financial files for the Leases; and

 

  (i) stationery.

 

“Business Records - Group” means the Business Records owned by, or licensed to, any Group Member.

 

“Business Records - Seller Group” means the Business Records owned by, or licensed to, any Seller Group Member which can be lawfully transferred to the Buyer but excluding the Excluded Business Records.

 

“Buyer Group” means the Buyer and each of its Related Bodies Corporate and, on and from Completion, includes the Group and where the context requires or allows, “Buyer Group Member” means any one or more of them.

 

“Buyer’s PAYG Credit” means the amount calculated by clause 15.5(c).

 

“Buyer’s Fund” has the meaning given in clause 10(a).

 

“C&P Completion” has the meaning given in the Umbrella Deed.

 

“C&P Hospital” has the meaning given in the Umbrella Deed.

 

“C&P Hospital Business” has the meaning given in the Umbrella Deed.

 

“Commissioner of Taxation” or “Commissioner” means has the meaning given in the Taxation Administration Act 1953.

 

“Completion” means completion of this Deed and the sale and purchase of the Assets - Seller Group and Sale Shares in accordance with the terms of this Deed.

 

“Completion Accounts” has the meaning given to “Umbrella Completion Accounts” in the Umbrella Deed.

 

“Completion Date” means the date set out in clause 3.1.


“Completion Quarter” means the Instalment Quarter in which Completion occurs.

 

“Condition Precedent” has the meaning given in the Umbrella Deed.

 

“Diagnostics Agreements” means as described and in accordance with the Table set out in Part A of Annexure A:

 

  (a) the Diagnostic Imaging and Pathology Lease set out in Part B of Annexure A;

 

  (b) the Right of First and Last Refusal Deed between Buyer and/or a Group Member and MGL set out in Part C of Annexure A;

 

  (c) the Diagnostic Imaging Service Level Agreement set out in Part D of Annexure A; and

 

  (d) the Pathology Service Level Agreement set out in Part E of Annexure A.

 

“Disclosure Material” has the meaning given in the Umbrella Deed.

 

“Divestment Businesses” has the meaning given in the Umbrella Deed.

 

“Eligible Subsidiary” means any Subsidiary that is or has been provided with an Instalment Rate by the Commissioner of Taxation before the end of the Completion Quarter.

 

“Employee Liability” means the Buyer’s obligations to Employees set out in clause 9.4.

 

“Employees” means the Employees - Seller Group, the Employees - Group, the Independent Contractors - Seller Group and the Independent Contractors - Group.

 

“Employees - Group” means those individuals employed by a Group Member in the Hospital Business as at the date of this Deed and any other individuals who are employed by a Group Member in the Hospital Business in the period between the date of this Deed and Completion. The term “Employees - Group” does not include any such individual whose employment terminates prior to, or who resigns prior to, Completion.

 

“Employees - Seller Group” means those individuals employed by a Seller Group Member exclusively in the Hospital Business as at the date of this Deed and any other individuals who are employed by a Seller Group Member exclusively in the Hospital Business in the period between the date of this Deed and Completion. The term “Employees - Seller Group” does not include any such individual whose employment terminates prior to or who resigns prior to Completion.

 

“Equipment Leases” mean the Equipment Leases - Group and the Equipment Leases - Seller Group.

 

“Equipment Leases - Group” mean all equipment, financing or operating leases or other hiring arrangements (but excluding the Leases - Group) exclusively relating to the Hospital Business to which any Group Member is a party.

 

“Equipment Lease Liability - Seller Group” means all obligations, whether arising before, on, or after Completion, under the Equipment Leases - Seller Group and which, but for this Deed, a Seller Group Member would be obliged to pay, carry out, perform, observe or complete after Completion.

 

“Equipment Leases - Seller Group” mean all equipment, financing or operating leases or other hiring arrangements (but excluding the Leases - Seller Group) exclusively relating to the Hospital Business to which any Seller Group Member is a party, including those set out in Schedule 13.


“Encumbrance” has the meaning given in the Umbrella Deed.

 

“Escrow Agreement” has the meaning given to that expression in the Umbrella Deed.

 

“Event” means any event, occurrence, transaction, instrument, act or omission (or any deemed event, occurrence, transaction, instrument, act or omission).

 

“Excluded Assets” means:

 

  (a) cash including cash on hand and funds held with any bank or financial institution;

 

  (b) any debtors of a Seller Group Member as at Completion other than the Trade Debts - Seller Group;

 

  (c) the Excluded Business Records;

 

  (d) any rights, title, interests or assets of any Seller Group Member which are not used exclusively in the Hospital Business; and

 

  (e) the Sold Properties.

 

“Excluded Business Records” means those of the Business Records that any Seller Group Member is required by Law to retain and debtor records other than records relating to the Trade Debts - Seller Group.

 

“Excluded Liabilities” means any Liabilities of any Seller Group Member to the extent that they do not relate to the Hospital Business.

 

“Fixed Assets” means those items of computer hardware (including desktop computers, laptop computers and servers) and other information technology-related fixed assets, capital work in progress, assets under construction, plant and equipment, machinery, office furniture, office machines, office equipment, appliances, fittings and spare parts and maintenance materials in relation to any of the foregoing and the Seller Group’s or Group’s right, title and interest in any leasehold improvement in respect of any of the foregoing, used by any Seller Group Member or Group Member exclusively in the Hospital Business.

 

“Fixed Assets - Seller Group” means those Fixed Assets owned by a Seller Group Member described in the column marked “Shared Services & Hospitals Corp management” in the Last Accounts, subject to any adjustment reflected in the Completion Accounts.

 

“Former Employee” means, in respect of a Group Member or a Seller Group Member, any person who was an employee of that Group Member or Seller Group Member at any time before Completion but is not so employed as at Completion.

 

“Freehold Premises” means the Freehold Premises - Group and the Freehold Premises - Seller Group.

 

“Freehold Premises - Group” means the real property owned by a Group Member and used in the Hospital Business as listed in Part D of Schedule 8.

 

“Freehold Premises - Seller Group” means the real property listed in Part C of Schedule 8.

 

“GIC” means the General Interest Charge payable in accordance with section 45-870 and 45-875 of Schedule 1 of the Taxation Administration Act 1953.

 

“Goodwill” means the goodwill in and attaching to the Hospital Business.

 

“Goodwill-Group” means the Goodwill owned by a Group Member and described in the columns marked AME Group and HCoA Group in the Last Accounts subject to any adjustment reflected in the Completion Accounts.


“Goodwill-Seller Group” means the Goodwill owned by a Seller Group Member and described in the column marked “Shared Services & Hospitals Corp Management” in the Last Accounts, subject to any adjustment reflected in the Completion Accounts.

 

“Governmental Authority” means any governmental, semi-governmental, administrative, judicial or quasi-judicial body or tribunal, department, public authority, agency or statutory authority or person vested with functions under of any Law.

 

“Group” means the Hospital Companies and the Subsidiaries and where the context requires or allows “Group Member” means any 1 or more of them.

 

“Group General Manager Hospitals” means Robert Cooke.

 

“GST” has the meaning given to it in the GST Act.

 

“GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth) as amended and any related imposition legislation.

 

“Head Office Contracts” means all agreements and arrangements of a corporate head office nature to which a Seller Group Member is a party which are entered into on a group wide basis and which do not relate exclusively to the Hospital Business, including agreements and arrangements concerning the provision of fuel cards to Employees and corporate credit cards to Employees and arrangements for corporate travel.

 

“Health Fund Contracts” means all agreements and arrangements between any Seller Group Member or Group Member and any health fund including:

 

  (a) an organisation registered under Part VI of the National Health Act 1953 (Cth);

 

  (b) the Australian Regional Health Group Limited;

 

  (c) the Australian Health Service Alliance Limited;

 

  (d) the Department of Veterans’ Affairs;

 

  (e) the Transport Accident Commission of Victoria;

 

  (f) the Motor Accident Authority of New South Wales;

 

  (g) the Motor Accident Insurance Commission of Queensland; or

 

  (h) the Insurance Commission of Western Australia.

 

“Hospital Business” means the business of:

 

  (a) operating the Hospitals;

 

  (b) providing the Shared Services (including procuring products and/or services for the provision of Shared Services),

 

carried on by the Seller Group or the Group in Australia at the date of this Deed, but excluding:

 

  (c) any other health service business carried on by the Seller Group not requiring a private hospital licence or registration;


  (d) the supply of inputs to the provision of services by those hospitals, including, supplying pharmaceuticals, pharmaceutical services, equipment, diagnostic imaging services and pathology services;

 

  (e) wholesaling and distribution of products sold in pharmacies to retail pharmacies;

 

  (f) wholesaling and distribution of various pharmaceutical products and medical consumables to hospitals;

 

  (g) the provision of certain retail and marketing services to pharmacies (including retail branding, back office support and technology and pharmacy finance guarantors);

 

  (h) the Indonesian Hospital Business;

 

  (i) the C&P Hospitals Business;

 

  (j) the Divestment Businesses; and

 

  (k) the Retained Business.

 

“Hospital Business Contracts” means Hospital Business Contracts - Group and Hospital Business Contracts - Seller Group.

 

“Hospital Business Contracts - Group” means all agreements, leases, contracts, arrangements, understandings or orders entered into, made or accepted by or on behalf of a Group Member relating to the Hospital Business and which are, in whole or in part, executory as at Completion including all contracts listed in Part B of Schedule 5 but excluding:

 

  (a) the Equipment Leases;

 

  (b) the Leases.

 

“Hospital Business Contracts - Seller Group” means all agreements, leases, licences, contracts, arrangements (including hiring arrangements), understandings or orders entered into, made or accepted by or on behalf of a Seller Group Member and exclusively relating to the Hospital Business which are, in whole or in part, executory as at Completion including all contracts listed in Part A of Schedule 5 but excluding:

 

  (a) the Hospital Business Contracts - Group;

 

  (b) the Leases;

 

  (c) the Equipment Leases;

 

  (d) any agreements, leases, licences, contracts, arrangements (including hiring arrangements), understandings or orders to the extent they relate to the Excluded Assets or a business other than the Hospital Business;

 

  (e) any agreements, leases, licences, contracts, arrangements (including hiring arrangements), understandings or orders to the extent they relate to borrowings or other financial accommodation made available to a Seller Group Member;

 

  (f) any contracts or policies of insurance to which a Seller Group Member is a party or which have been issued in favour of a Seller Group Member;

 

  (g) any foreign currency purchase, sale, hedge, swap or like agreement or arrangement;

 

  (h) any agreements with another Seller Group Member;


  (i) the Shared Contracts; and

 

  (j) the Head Office Contracts.

 

“Hospital Business Contracts Liability - Seller Group” means all obligations, whether arising before, on or after Completion, under the Hospital Business Contracts - Seller Group and which, but for this Deed, a Seller Group Member would be obliged or liable to pay, carry out, perform, observe or complete after Completion.

 

“Hospital Companies” has the meaning given in Recital A.

 

“Hospitals” means the hospitals listed in Schedule 3.

 

“Independent Contractors” means Independent Contractors - Seller Group and Independent Contractors - Group.

 

“Independent Contractors - Seller Group” means those individuals engaged by a Seller Group Member exclusively in the Hospital Business as at the date of this Deed together with any other individuals who are engaged by a Seller Group Member exclusively in the Hospital Business in the period between the date of this Deed and Completion. The term “Independent Contractors - Seller Group” does not include any such individual whose engagement terminates prior to Completion.

 

“Independent Contractors - Group” means those individuals engaged by a Group Member in the Hospital Business as at the date of this Deed together with any other individuals who are engaged by a Group Member in the Hospital Business in the period between the date of this Deed and Completion. The term “Independent Contractors - Group” does not include any such individual whose engagement terminates prior to Completion.

 

“Independent Contractor Liability” means the Buyer’s obligations to Independent Contractors set out in clause 9.4.

 

“Indonesian Hospital Business” has the meaning in the Umbrella Deed.

 

“Initial Head Company Instalment Rate” has the meaning given in section 995-1 of the Income Tax Assessment Act 1997.

 

“Instalment Income” means a Hospital Company’s instalment income or an Eligible Subsidiary’s instalment income (as the case requires) calculated in accordance with section 45-120 of Schedule 1 of the Taxation Administration Act 1953.

 

“Instalment Quarter” means the three-month periods commencing on 1 July 2003, 1 October 2003, 1 January 2004 and 1 April 2004.

 

“Instalment Rate” means the last instalment rate provided by the Commissioner of Taxation pursuant to Division 45 of Schedule 1 of the Taxation Administration Act 1953.

 

“Intellectual Property Rights” means the intellectual property and know-how which are exclusively used by a Seller Group Member or a Group Member in the Hospital Business but excluding the Trade Marks - Excluded.

 

“Intellectual Property Rights - Group” means the Intellectual Property Rights which are owned by a Group Member including the intellectual property described in Part B of Schedule 7.

 

“Intellectual Property Rights - Seller Group” means the Intellectual Property Rights which are owned by a Seller Group Member including the intellectual property described in Part A of Schedule 7.


“Interest Rate” means the published overdraft reference rate of Commonwealth Bank of Australia (CBA) or, if that bank ceases to publish an overdraft reference rate, such other rate as CBA decides should replace the bank’s overdraft reference rate.

 

“Key Contracts” means the contracts identified as such in Schedule 5.

 

“Last Accounts” has the meaning given in the Umbrella Deed.

 

“Law” includes all statutes, regulations, by-laws, ordinances and other delegated legislation and any rule of common law, contract, tort or equity from time to time and “lawfully” means in conformance with all such Laws and the provisions of any relevant contract.

 

“Lease Liability- Seller Group” means any Liability, whether arising before, on or after Completion, under the Leases - Seller Group.

 

“Leasehold Premises” means the Leasehold Premises - Seller Group and the Leasehold Premises - Group.

 

“Leasehold Premises - Group” means the properties listed in Part B of Schedule 8.

 

“Leasehold Premises - Seller Group” means the leased properties listed in Part A of Schedule 8.

 

“Leases” means the Leases - Seller Group and the Leases - Group.

 

“Leases - Group” means the leases relating to the Leasehold Premises - Group.

 

“Leases - Seller Group” means the leases relating to the Leasehold Premises - Seller Group and any other leases to which any Seller Group Member is party exclusively in relation to the Hospital Business.

 

“Liability” means:

 

  (a) any debt or other monetary liability or penalty, fine or payment or any damage, loss, cost, charge or expense on any account and in any capacity, irrespective of whether the debt, liability, penalty, fine, payment, damage, loss, cost, charge or expense is:

 

  (i) present or future, matured or unmatured;

 

  (ii) actual, prospective or contingent;

 

  (iii) a contractual, tortious, legal, equitable or statutory obligation;

 

  (iv) ascertained or unascertained at any time;

 

  (v) owed, incurred or imposed by or on account of any person alone or severally or jointly with another person;

 

  (vi) owed, incurred or imposed to or for the account of any person alone or severally or jointly with another person;

 

  (vii) owed, incurred or imposed as a principal obligation or by way of surety or indemnity;

 

  (viii) owed, incurred or imposed as interest, fees, charges, taxes, duties or other imposts;

 

  (ix) owed, incurred or imposed as compensation or damages, whether for breach of contact or tort or on any other basis, or as losses, costs or expenses or on any other account; or


  (x) any combination of any of the foregoing paragraphs; or

 

  (b) any contractual, tortious, statutory, legal equitable or other obligation or liability to do or perform any act or to refrain from doing or performing any act.

 

“Licence” means the licence for Level 3, Jetset House, 5 Queens Road, Melbourne, Victoria, in the form which is annexed to this Deed as Annexure C.

 

“Loan Agreement” means the agreement dated 27 June 2003 between ANZ Investment Bank and MGL in respect of a $220 million loan facility and a $30 million loan facility respectively.

 

“Loan Structure” means the arrangements specified in clause 16 of the Asset Sale Deeds in respect of Frances Perry Private Hospital, Carlton and the Joondalup Health Campus, Joondalup.

 

“Missing Titles” means certificates of title Volume 2146 Folios 617 and 618 (Mounts Bay Road, Perth) Volume 9578 Folio 776 (Knox) and reference 1711 8226 (St Andrews).

 

“Obligors” means:

 

  (a) HCoA Hospital Holdings (Australia) Pty Ltd;

 

  (b) HCoA Operations (Australia) Pty Ltd;

 

  (c) Hospital Corporation Australia Pty Ltd;

 

  (d) Australian Hospital Care (Pindara) Pty Ltd;

 

  (e) Australian Hospital Care (MSH) Pty Ltd;

 

  (f) Australian Hospital Care (Masada) Pty Ltd;

 

  (g) Australian Hospital Care (Knox) Pty Ltd;

 

  (h) AME Hospitals Pty Ltd;

 

  (i) AME Properties Pty Ltd;

 

  (j) Pindara Private Hospital Unit Trust;

 

  (k) Knox Private Hospital Unit Trust;

 

  (l) Masada Private Hospital Unit Trust;

 

  (m) Australian Hospitals Unit Trust;

 

  (n) AME Trading Trust; and

 

  (o) AME Property Trust.

 

“Officer” means, in relation to a corporation, an officer within the meaning of section 82A of the Corporations Act 2001 (Cth).

 

“Other Indemnifying Parties” means the parties listed in Schedule 14.


“PAYG Credit” means:

 

  (a) in respect of the Buyer – the Buyer’s PAYG Credit; and

 

  (b) in respect of MGL – MGL’s PAYG Credit.

 

“PAYG Instalment” means the PAYG instalment payable by a Hospital Company or an Eligible Subsidiary (as the case requires) in accordance with Subdivision 45-B of Schedule 1 of the Taxation Administration Act 1953.

 

“PAYG Payment Date” means:

 

  (a) in respect of a PAYG Instalment for the Pre-Completion Quarter – 21 days after the commencement of the Completion Quarter; and

 

  (b) in respect of a PAYG Instalment for the Post-Completion Quarter – 21 days after the end of the Completion Quarter.

 

“Post-Completion Instalment Rate” is the last Instalment Rate given to a Hospital Company or an Eligible Subsidiary (as the case requires) by the Commissioner of Taxation before the end of the Completion Quarter.

 

“Pre-Completion Instalment Rate” is the last Instalment Rate given to a Hospital Company or an Eligible Subsidiary (as the case requires) by the Commissioner of Taxation before the start of the Completion Quarter. If the Commissioner has not provided an Instalment Rate by the end of the Pre-Completion Quarter, the Instalment Rate will be 0%.

 

“Pre-Completion Quarter” means the Instalment Quarter before the Completion Quarter.

 

“Premises” means the Freehold Premises.

 

“Prepayments” has the meaning given in the Umbrella Completion Accounting Principles to the line item entitled “Prepayments” in the Last Accounts.

 

“Prepayments - Seller Group” means Prepayments paid or made by the Seller Group as described in the column marked “Shared Services & Hospitals Corp Management” in the Last Accounts subject to any adjustment reflected in the Completion Accounts.

 

“Pre-Adjustment Purchase Price” means [*].

 

“Purchase Price” means the purchase price for the Sale Shares and the Assets - Seller Group determined in accordance with the Umbrella Deed.

 

“Related Body Corporate” has the meaning given in section 9 of the Corporations Act 2001 (Cth).

 

“Relevant Seller Group Member” has the meaning defined in clause 1.2.

 

“Replacement Titles” means titles to replace the Missing Titles.

 

“Representative” has the meaning in the Umbrella Deed.

 

“Reserved Names” means “Mayne”, and any name containing the word “Mayne” and any name substantially similar to or reasonably capable of confusion with the word “Mayne”.

 

“Retained Business” means the business carried on by the Retained Companies and their subsidiaries (if any).

 

“Retained Companies” means AME Medical Services Pty Ltd, Jandale Pty Ltd, St George Private Hospital Nuclear Medicine Pty Ltd, Larches Pty Ltd and Dangara Pty Limited.


[*] Certain confidential portions of these exhibits have been omitted pursuant to a request for confidential treatment and filed separately with the Commission.


“Revenue Authority” means any Federal, State, Territory or local Government Authority in respect of Tax.

 

“Sale Shares” means all of the shares issued in the capital of the Hospital Companies more particularly described in Schedule 2.

 

“Scheduled Intellectual Property Rights” means the Intellectual Property Rights listed in Schedule 7.

 

“Scheduled Premises” means the Premises listed in Schedule 8.

 

“Seller Group” means MGL and each of its Related Bodies Corporate (but excluding all Group Members) and where the context requires or allows “Seller Group Member” means any one or more of them.

 

“Seller’s Guarantees” means all securities, letters of credit, letters of comfort, guarantees and indemnities provided by or on behalf of any Seller Group Member to support the operation of the Hospital Business (or any part of it) as listed in Schedule 4.

 

“Seller’s PAYG Credit” means the amounts calculated by clause 15.4.

 

“Seller’s Superannuation Fund” means the Mayne Group Limited Superannuation Fund.

 

“Shared Contracts” means the agreements or arrangements with third parties which are listed in Part C of Schedule 5 that relate partly to the Hospital Business and partly to any business of the Seller Group other than the Hospital Business and includes the Head Office Contracts.

 

“Shared Services” means all services which, at the date of this Deed, are provided by any Seller Group Member to any Group Member or other Seller Group Member using the SAP financial system (including general ledger (including fixed assets), accounts payable (including an IXOS imaging system), accounts receivable and payroll) and which the Buyer will provide to the Seller Group for a transitional period after Completion under the Shared Services Agreement and includes any other services which the parties agree that the Buyer will provide to the Seller Group under the Shared Services Agreement.

 

“Shared Services Agreement” means the agreement to be entered into between MGL and the Buyer at Completion in relation to the provision of transitional services by Buyer Group Members to the Seller Group and Seller Group Members to the Buyer Group for a transitional period on and after Completion, in the form which is annexed to this Deed as Annexure B.

 

“Sold Properties” means:

 

  (a) 9 Burrabil Avenue, North Gosford (Lot 2 on unregistered plan part Folio Identifier 11/874500);

 

  (b) 10 Jarrett Street, North Gosford (Folio Identifier 1/242369);

 

  (c) 8 Jarrett Street, North Gosford (Folio Identifier 2/242369);

 

  (d) 74 Etna Street, North Gosford (Folio Identifier 2/23399);

 

  (e) 72 Etna Street, North Gosford (Folio Identifier 1/23399);

 

  (f) 76 Etna Street, North Gosford (Folio Identifier 3/23399);

 

  (g) 78 Etna Street, North Gosford (Folio Identifier 4/23399); and

 

  (h) 78 Etna Street, North Gosford (Folio Identifier 5/23399).


“State” means the state of Victoria.

 

“Stock” means all the stock-in-trade exclusively relating to the Hospital Business used by a Group Member or a Seller Group Member, including all raw materials, factory supplies, components, work in progress, finished goods, packaging materials, spare parts, consumables, uniforms, stationery and goods in transit.

 

“Stock - Group” means all Stock owned by a Group Member as described in the columns marked “AME Group” and “HCoA Group” in the Last Accounts, subject to any adjustments reflected in the Completion Accounts.

 

“Stock - Seller Group” means all Stock owned by a Seller Group Member as described in the column marked “Shared Services & Hospitals Corp Management” in the Last Accounts, subject to any adjustments reflected in the Completion Accounts.

 

“Successor Fund” has the meaning given to that expression in Regulation 1.03 (1) of the Superannuation Industry (Supervision) Regulations.

 

“Subsidiaries” means the companies set out in Part 2 of Schedule 1.

 

“Tax” means income tax (including capital gains tax), franking deficit tax, franking additional tax, pay-as-you-go remittances, prescribed payments, GST, withholding tax (including deductions pursuant to the royalty withholding obligation), fringe benefits tax, customs duty, sales tax, payroll tax, land tax, stamp duty, financial institutions duty, debits tax, municipal rates and all other taxes, charges, imposts, duties and levies and any penalties, interest, fines or other costs relating thereto, whether levied or imposed by an authority in Australia or any jurisdiction outside Australia. Tax will also, for the avoidance of doubt, include a liability that arises pursuant to Division 721 of the Tax Act.

 

“Tax Act” means the Income Tax Assessment Act 1997, Income Tax Assessment Act 1936, the Taxation Administration Act 1953, Income Tax Rates Act 1986 and other rating legislation or regulations, the Income Tax Regulations and related Commonwealth income taxation legislation and regulations, the GST Act and any other legislation, regulation or administrative protocol relating to the imposition or administration of a Tax.

 

“Tax Claim” means any letter, request, advice, notice, demand, notice of assessment, amended assessment or determination, deemed assessment, other communication, instrument or document lodged under self-assessment or issued, served or made by or on behalf of a Revenue Authority, whether before or after the date of this Deed or Event occurring on or before Completion as a result of which any Group Member is liable to make a payment of Tax in respect of any period ending on or before Completion (including the date of Completion) or is not entitled to any credit, rebate, refund, relief, allowance, deduction, or tax loss in respect of any period ending on or before Completion.

 

“Tax Claim Amount” means the amount any Group Member is required to pay in Tax to a Revenue Authority as a result of a Tax Claim (including any penalty or interest) and includes any damages, losses, costs (including reasonable legal costs) or expenses suffered in or incurred in respect of any Tax Claim.

 

“Tax Indemnity” means the indemnities given by MGL under clause 14.

 

“Trade Creditors - Seller Group” means all debts and other money which at or after Completion are or become owing by any Seller Group Member in relation to goods or services sold or provided to any Seller Group Member in respect of the Hospital Business on or prior to Completion.


“Trade Creditors Liability - Seller Group” means all obligations, whether arising before, on or after Completion, in respect of or in connection with the Trade Creditors - Seller Group which, but for this Deed, the Seller or relevant Seller Group Member would be obliged or liable to pay, carry out, perform, observe or complete after Completion.

 

“Trade Debtors - Seller Group” means all persons who owe a Trade Debt - Seller Group.

 

“Trade Debts” means:

 

  (a) all the debts and other money owed to any Seller Group Member or any Group Member to the extent that they relate to goods or services sold or provided by such Seller Group Member or Group Member;

 

  (b) accrued revenue from discharged patients and inpatients to the extent they relate to goods or services sold or provided by any Seller Group Member or Group Member;

 

  (c) all other debts and other money owed to any Seller Group Member or any Group Member including proceeds from the sale of property, plant and equipment,

 

exclusively in respect of the Hospital Business.

 

“Trade Debts - Group” means the Trade Debts owed to, or accrued in favour of, any Group Member as described in the columns marked “AME Group” and “HCoA Group” in the Last Accounts, subject to any adjustment reflected in the Completion Accounts.

 

“Trade Debts - Seller Group” means the Trade Debts owed to, or accrued in favour of, any Seller Group Member as described in the column marked “Shared Services & Hospital Corp Management” in the Last Accounts, subject to any adjustment reflected in the Completion Accounts.

 

“Trade Marks - Excluded” means the trade marks listed in Part C of Schedule 7.

 

“Transaction Agreements” has the meaning given to it in the Umbrella Deed.

 

“Transferring Employees” means such of the Employees - Seller Group who accept the Buyer’s offer of employment made under clause 9.1.

 

“Umbrella Completion Accounting Principles” has the meaning defined in the Umbrella Deed.

 

“Umbrella Deed” means the deed so titled between the parties on or about the date of this Deed.

 

“Warranties” has the meaning in the Umbrella Deed.

 

1.2 Procurement by MGL

 

MGL agrees that where the performance of any obligation of MGL under this Deed requires any action by a Seller Group Member other than MHH, MGL will procure that action to be taken by the relevant Seller Group Member (“Relevant Seller Group Member”).

 

1.3 Umbrella Deed

 

  (a) The parties have entered into an Umbrella Deed in relation to certain aspects of the sale of the Sale Shares and the Assets - Seller Group.

 

  (b) The Umbrella Deed is supplementary to this Deed. In the event of any inconsistency between this Deed and the Umbrella Deed, the Umbrella Deed shall prevail.


1.4 Other Indemnifying Parties

 

  (a) In consideration for the Sellers entering into this Deed with the Buyer, each indemnity granted by the Buyer pursuant to this Deed is hereby also granted by each of the Other Indemnifying Parties.

 

  (b) Without limiting the Buyer’s obligations under this Deed, every reference in this Deed to the “Buyer” relating to an indemnity shall be read as if it was a reference to the “Buyer” and each of the Other Indemnifying Parties.

 

  (c) The obligations and liabilities assumed by, and rights conferred on, the Buyer and the Other Indemnified Parties pursuant to the provisions referred to in clause 1.4(b) binds and benefits them jointly and severally.

 

  (d) A reference in this Deed to a “party” or “the parties” does not include any of the Other Indemnified Parties, except to the extent necessary to give effect to this clause 1.4.

 

2. Sale of Sale Shares and Assets

 

2.1 Sale of Sale Shares

 

MGL and MHH agree to sell to the Buyer and the Buyer agrees to purchase from MGL and MHH the Sale Shares:

 

  (a) free from any Encumbrance;

 

  (b) with all rights, including dividend and voting rights, attached or accrued to them on or after the date of this Deed; and

 

  (c) on the terms and conditions of this Deed.

 

2.2 Sale of Assets

 

MGL agrees to sell or procure the sale by a Seller Group Member to the Buyer and the Buyer agrees to purchase from the relevant Seller Group Member the Assets - Seller Group free from any Encumbrance on the terms and conditions of this Deed.

 

2.3 Purchase Price

 

The purchase price payable for the Sale Shares and the Assets - Seller Group is the Purchase Price.

 

2.4 Missing Titles

 

  (a) The Buyer acknowledges that MGL is unable to locate the Missing Titles.

 

  (b) MGL will use best endeavours to obtain Replacement Titles prior to the Completion Date. If the Replacement Titles are not obtained prior to the Completion Date, MGL will continue to use best endeavours to obtain Replacement Titles as soon as practicable after Completion and the Buyer will do whatever is reasonably necessary to assist MGL in obtaining Replacement Titles.

 

2.5 Sold Properties

 

  (a)

The Buyer will procure the relevant Group Member to do all things necessary to effect the transactions in relation to the Sold Properties. Upon payment to any


 

Buyer Group Member or Buyer’s Representative (as defined in the Umbrella Deed), of any of the proceeds from the sale of the Sold Properties, the Buyer must within 5 Business Days thereafter, pay to MGL an amount equal to such proceeds subject to any deductions required by Law (including any Tax).

 

  (b) Subject to clauses 2.5(c) and (d), MGL indemnifies each Buyer Group Member against all Liabilities which it suffers or incurs as a result of the transactions in relation to the Sold Properties.

 

  (c) The limitations of liability in clause 8 of the Umbrella Deed will not apply in respect of this clause 2.5.

 

  (d) In the event that the Group Member is the subject of a Claim in respect of which it will seek to be indemnified pursuant to clause 2.5(b), such Claim will be deemed to be a Claim in respect of the “Divestment Business” and be resolved and managed in accordance with clause 11 (Litigation) of the Umbrella Deed.

 

3. Completion

 

3.1 Completion place and date

 

Subject to the satisfaction or waiver of each Condition Precedent in accordance with clause 4 of the Umbrella Deed, Completion will take place at the offices of Clayton Utz, 333 Collins Street, Melbourne, Victoria at 10 a.m. on 30 November 2003 or such other date or place (or both) as MGL and the Buyer may agree in writing.

 

3.2 Seller’s obligations on Completion

 

On Completion, MGL and MHH will (in relation to the Sale Shares) and MGL will (in relation to the Assets - Seller Group) as appropriate:

 

  (a) (Sale Shares): give and deliver to the Buyer:

 

  (i) the share certificates for the Sale Shares together with the share certificates for all issued shares in each Subsidiary;

 

  (ii) completed transfers of the Sale Shares duly executed by the registered holder of such shares in favour of the Buyer as transferee;

 

  (iii) any consent or consents to the transfers referred to in clause 3.2(a)(ii) contemplated by any pre-emptive rights or provisions in the Constitution or any other agreement, arrangement or understanding concerning the Sale Shares;

 

  (iv) written resignations with effect from the Completion Date from all of the directors and secretaries of each Group Member, each such director’s and secretary’s resignation to include an acknowledgment that the director or secretary has no claim for breach of contract, loss of office, redundancy compensation, remuneration or reimbursement against any Group Member in relation to his or her service or appointment or resignation as a director or secretary of any Group Member, as appropriate, or such other form of acknowledgment as is reasonably agreed by the Buyer; and


  (b) (Meetings): cause:

 

  (i) a meeting of the directors of the Hospital Companies to be held at which:

 

  A. persons nominated in writing by the Buyer and having consented in writing to such appointment in accordance with clause 3.3(g) will be appointed directors of such companies;

 

  B. persons nominated in writing by the Buyer and having consented in writing to such appointment in accordance with clause 3.3(g) will be appointed secretaries of such companies;

 

  C. the directors of each such company resolve to accept the resignations referred to in clause 3.2(a)(iv) with effect immediately after the appointments under clause 3.2(b)(i)A and 3.2(b)(i)B; and

 

  D. the directors of the each such company resolve to approve and register the share transfers referred to in clause 3.2(a)(ii) subject to those transfers being stamped (where necessary); and

 

  (ii) where necessary, meetings of the directors of each Subsidiary to be held at which resolutions in the same form (with the appropriate changes being made to take account of the identity of the Subsidiary concerned, its Constitution and any applicable law) as the resolutions provided for in clauses 3.2(b)(i)A to (i)C inclusive are passed;

 

  (c) (Possession): deliver to the Buyer:

 

  (i) the Fixed Assets - Seller Group;

 

  (ii) the Stock - Seller Group;

 

  (iii) the Business Records - Seller Group; and

 

  (iv) copies of the Excluded Business Records

 

  (v) hired, leased or any other assets the subject of any of the Hospital Business Contracts - Seller Group and Equipment Leases - Seller Group as are in the possession of any Seller Group Member (subject, where required, to the relevant counterparty’s consent); and

 

  (vi) possession of the Leasehold Premises - Seller Group (subject, where required, to the relevant lessor’s consent);

 

  (d) (Business Names): deliver to the Buyer forms required under the relevant legislation in the States and Territories in which the Business Names - Seller Group are registered to notify the relevant authorities in those States and Territories of the change in proprietorship of the Business Names - Seller Group to the Buyer, each duly executed by the relevant Seller Group Member;

 

  (e) (Transfer of Intellectual Property Rights - Seller Group): deliver to the Buyer duly executed assignments of all registered trademarks, registered designs, patents and copyrights included in the Intellectual Property Rights - Seller Group, together with all certificates of registration held by any Seller Group Member in relation thereto;


  (f) (Certificates of registration and originals of Leases - Seller Group, Hospital Business Contracts - Seller Group and Equipment Leases - Seller Group): deliver to the Buyer originals (where possible, copies where not) of the Leases - Seller Group which have been novated or assigned in accordance with clause and which are in the possession of a Seller Group Member, and originals of those of the Hospital Business Contracts - Seller Group and Equipment Leases - Seller Group (including all documents in relation to the WEF Leasing Arrangements referred to in clause 4) which have been novated or assigned in accordance with clause 4 and which are in the possession of a Seller Group Member;

 

  (g) (Release of Guarantees): obtain on behalf of each Obligor an unconditional release of its guarantee and obligations under the Loan Agreement;

 

  (h) (Notices and documents): deliver to the Buyer such notices and other documents as may be required to be executed or registered by a Seller Group Member under any statute in connection with the sale or assignment of the Assets - Seller Group and the Sale Shares, as appropriate provided that the Buyer has, at its own cost, prepared such notices and other documents and delivered the same to MGL’s solicitors at least 5 Business Days before the Completion Date;

 

  (i) (Services): surrender or cause to be surrendered all telephone and related lines, electricity, gas and other utility services of the Hospital Business as relate to the Leasehold Premises - Seller Group, and use its best endeavours to assist the transfer or grant of those services (including the retention of all telephone and facsimile numbers) or, where that is not possible, the grant of new services to the Buyer or Group;

 

  (j) (Diagnostics Agreements): deliver original counterparts of the Diagnostics Agreements executed by MGL and each relevant Seller Group Member;

 

  (k) (Shared Services Agreement and Licence): deliver an original counterpart of the Shared Services Agreement and Licence each executed by MGL and each relevant Seller Group Member;

 

  (1) (Escrow Agreement): deliver an original counterpart of the Escrow Agreement executed by MGL; and

 

  (m) (Other obligations): perform all other obligations to be performed by it on Completion under this Deed and procure that all other Relevant Seller Group Members do the same.

 

3.3 Buyer’s obligations on Completion

 

On Completion, the Buyer will:

 

  (a) (Pay): pay the Pre-Adjustment Purchase Price to MGL under clause 2.1(a) of the Umbrella Deed;

 

  (b) (Assignment or novation): accept from MGL or relevant Seller Group Member an assignment or novation in a form satisfactory to the Buyer, acting reasonably, of such of those of the Leases - Seller Group, Hospital Business Contracts - Seller Group and Equipment Leases - Seller Group as have been obtained as at the Completion Date (including all documents in relation to the WEF Arrangements referred to in clause 4), and enter into occupation of the Leasehold Premises - Seller Group. For those Leases - Seller Group for which consent or novation has not been obtained by the Completion Date, the Buyer shall enter into occupation on the basis of clause 5.2;


  (c) (Accept delivery): accept from MGL delivery of the items referred to in clause 3.2(c);

 

  (d) (Release of guarantees): cause to be delivered to MGL an unconditional release of each of the Seller’s Guarantees in a form reasonably satisfactory to MGL that it has been able to secure under clause 7.1;

 

  (e) (Diagnostics Agreements): deliver original counterparts of the Diagnostics Agreements executed by the Buyer or the Group Member which is a party thereto;

 

  (f) (Shared Services Agreement and Licence): deliver an original counterpart of the Shared Services Agreement and Licence executed by the Buyer;

 

  (g) (Consents): cause to be delivered to MGL signed consents to act for the persons nominated in writing by the Buyer to act as directors and secretaries as referred to in clause 3.2(b);

 

  (h) (Escrow Agreement): deliver an original counterpart of the Escrow Agreement executed by the Buyer; and

 

  (i) (Other obligations): perform all other obligations to be performed by it on Completion under this Deed.

 

3.4 Delivery

 

For the purposes of clause 3.2(c) delivery of any item (other than items in transit) will, where that item is ordinarily located at any of the Premises, be made by leaving that item at that location on the Premises.

 

3.5 Title

 

Subject to the necessary third party consents under clauses 4, 5 and 6 and complying with any registration requirements, upon Completion legal and beneficial ownership of the Assets - Seller Group and the Sale Shares will pass to the Buyer.

 

3.6 Risk

 

Risk in the Assets - Seller Group passes to the Buyer upon Completion.

 

3.7 Interdependence

 

Except as the parties otherwise agree in writing, the requirements of clauses 3.2 and 3.3 are interdependent and are to be carried out contemporaneously. No delivery or payment will be deemed to have been made until all deliveries and payments have been made.

 

3.8 Notice to complete

 

  (a) If MGL or MHH fail to satisfy their obligations under clause 2.5 on or before the Completion Date, the Buyer may give MGL a notice requiring it to satisfy those obligations within a period of 10 Business Days from the date of receipt of the notice, and declaring time to be of the essence in all respects. If MGL fails to satisfy those obligations on the date specified in the Buyer’s notice the Buyer may, without affecting or limiting any other rights it might have, terminate this Deed by giving MGL written notice to that effect and after any such termination the Buyer will be entitled to sue MGL or MHH for breach of contract.


  (b) If the Buyer fails to satisfy its obligations under clause 2.5 on or before the Completion Date or otherwise fails to satisfy its obligations to complete this Deed, MGL may give the Buyer a notice requiring it to satisfy those obligations within a period of 10 Business Days from the date of receipt of the notice, and declaring time to be of the essence in all respects. If the Buyer fails to satisfy those obligations on the date specified in MGL’s notice, MGL may, at its discretion and without affecting or limiting any other rights it might have, terminate this Deed by giving the Buyer written notice to that effect, or seek specific performance of this Deed. After any such termination MGL will be entitled to:

 

  (i) sue the Buyer for breach of contract; and

 

  (ii) resell and procure the resale of the Sale Shares and the Assets - Seller Group as owner,

 

whereupon the Buyer shall indemnify MGL and MHH from and against all Liabilities in relation to the Buyer’s breach of this Deed, including, in the circumstances set out in paragraph (ii), the deficiency (if any) arising on such resale and all expenses of and incidental to such resale or attempted resale, and the Buyer’s default.

 

3.9 Conduct until Sale Shares are registered

 

After Umbrella Completion and until the Sale Shares are registered in the name of the Buyer, MGL or MHH (as the case may be) must convene, attend and vote at general meetings of the relevant Group Member or sign resolutions of the relevant Group Member as the Buyer reasonably directs in writing.

 

3.10 Storage of Disclosure Material

 

As soon as practicable after Completion, MGL must arrange for a copy of the Disclosure Material to be recorded in electronic format on a compact disc and delivered for safe storage to Clayton Utz and Minter Ellison, on terms that (except where disclosure is required by law) it only be made available for inspection or copying to a party with the consent of both MGL and the Buyer, with such consent not to be unreasonably withheld.

 

4. Novation and Assignment of Hospital Business Contracts - Seller Group and Equipment Leases - Seller Group

 

4.1 Novation or assignment

 

  (a) From the date of this Deed until the date which is 12 calendar months after Completion (“Termination Option Date”), MGL must (and must procure that any Relevant Seller Group Member) use its best endeavours (excluding paying money or providing other valuable consideration to or for the benefit of any person) to obtain all necessary consents to, and to secure, at its discretion, the:

 

  (i) novation to the Buyer by and with effect from Completion of those of the Hospital Business Contracts - Seller Group as are listed in Schedule 5 and those of the Equipment Leases - Seller Group as are listed in Schedule 13 on terms reasonably acceptable to both the Buyer and MGL; or

 

  (ii) assignment to the Buyer by and with effect from Completion of the Hospital Business Contracts - Seller Group as are listed in Schedule 5 and those of the Equipment Leases - Seller Group as are listed in Schedule 13 on terms reasonably acceptable to both the Buyer and MGL.

 


 

  (b) The Buyer must accept such novation or assignment, assist and co-operate with MGL and each other party to the relevant Hospital Business Contract - Seller Group or Equipment Leases - Seller Group and the Buyer must execute any agreements or deeds (including a replacement master lease agreement in the case of Equipment Leases - Seller Group and any agreements or deeds so as to ensure that MGL is released from all the continuing obligations to the extent they relate to the WEF Leasing Arrangements (as set out in Schedule 13) which novations and agreements or deeds in relation to the WEF Leasing Arrangements must have been obtained as at the Completion Date), that may reasonably be required by the relevant other party as a condition of the other party’s consent.

 

  (c) Subject to Completion, MGL (on behalf of the relevant Seller Group Member) hereby assigns to the Buyer with effect on and from Completion the benefit of those of the Hospital Business Contracts - Seller Group not listed in Part A or Part B of Schedule 5 in respect of which assignments are permitted without the consent of the other party to the Hospital Business Contract - Seller Group.

 

4.2 Obligations pending or if no novation or assignment

 

If any of the Hospital Business Contracts - Seller Group or the Equipment Leases - Seller Group referred to in clause 4.1 or otherwise, are not novated or assigned to, or for the benefit of, the Buyer, on and from Completion, then until any novation or assignment occurs or until such Hospital Business Contract - Seller Group or Equipment Leases - Seller Group is terminated or expires under clause 4.3 or otherwise:

 

  (a) MGL must (and must procure that all Seller Group Members) use its reasonable endeavours (excluding paying money or providing other valuable consideration to or for the benefit of any person) to ensure that each relevant Hospital Business Contract - Seller Group or Equipment Leases - Seller Group continues in full force and effect and is held for the benefit of the Buyer or the Group;

 

  (b) the Buyer or the Group must to the extent that it is lawfully able, perform on behalf of the Relevant Seller Group Member all obligations of the Seller Group Member under or arising out of that Hospital Business Contract - Seller Group or Equipment Leases - Seller Group whether arising before, on or after Completion (and the Relevant Seller Group Member must facilitate this); and

 

  (c) to the extent that the Buyer and/or the Group is not lawfully able to perform any obligation or exercise any right of a Seller Group Member, the Relevant Seller Group Member must, on the request and at the reasonable expense of the Buyer and/or the Group, perform that obligation or exercise that right provided that:

 

  (i) the Relevant Seller Group Member is lawfully able and capable of doing so and will not suffer any resulting Liability; and

 

  (ii) the Buyer provides timely instructions to the Seller Group Member as to how it requires the Seller Group Member to exercise that right, failing which the Seller Group Member may exercise that right as it thinks fit.

 

4.3 Obligations if novation or assignment is not possible

 

If:

 

  (a) the Termination Option Date has expired; or


  (b) the relevant third party to the Hospital Business Contract - Seller Group or Equipment Lease - Seller Group has given written notice to MGL or the Buyer that it does not consent to novation or assignment of the Hospital Business Contract - Seller Group or Equipment Lease - Seller Group (as the case may be); or

 

  (c) the relevant third party provides its consent to novation or assignment of the Hospital Business Contract - Seller Group or Equipment Lease - Seller Group on conditions which are not reasonably acceptable to MGL or the Buyer,

 

then, subject to clause 4.4:

 

  (d) MGL may, at its discretion, terminate or breach the Hospital Business Contract - Seller Group or Equipment Lease - Seller Group provided that it consults with the Buyer in good faith and gives reasonable notice in writing to the Buyer before such termination or breach;

 

  (e) MGL must terminate the Hospital Business Contract - Seller Group or Equipment Lease - Seller Group, if possible under the terms of those agreements, at the written direction of the Buyer; or

 

  (f) Subject to (d) and (e), MGL must ensure that each such Hospital Business Contract - Seller Group and Equipment Lease - Seller Group continues in full force and effect and is held for the benefit of the Buyer or the Group and the Buyer must pay all amounts then due and payable and which may become due and payable under the relevant Hospital Business Contracts - Seller Group and Equipment Leases - Seller Group.

 

4.4 Indemnities

 

From Completion, the Buyer indemnifies each Seller Group Member against any Liabilities suffered or incurred by it in relation to:

 

  (a) any Hospital Business Contract - Seller Group or Equipment Lease - Seller Group terminated or breached under:

 

  (i) clause 4.3(d), to the extent that such document was included in Schedule 5 or Schedule 13;

 

  (ii) clause 4.3(e);

 

  (b) any Hospital Business Contracts - Seller Group or the Equipment Leases - Seller Group referred to in clause 4.3(f); and

 

  (c) termination by the relevant third party or expiry of any Hospital Business Contract - Seller Group or Equipment Lease - Seller Group,

 

whether arising before, on or after Completion including any Liabilities suffered or incurred by it in complying with its obligations or exercising its rights under that contract or as a result of terminating or breaching that contract.

 

4.5 Transfer of Assets under Equipment Leases - Seller Group

 

If:

 

  (a) an amount becomes payable by the Buyer under an indemnity in clause 4.4 relating to Equipment Leases - Seller Group as a result of the termination or expiry of any such Equipment Leases - Seller Group; and


  (b) upon such termination or expiry, legal and beneficial title to any assets to which such Equipment Leases - Seller Group relate becomes vested in MGL or any other Seller Group Member,

 

then upon the receipt by MGL or the relevant Seller Group Member of the full amount payable under the indemnity by the Buyer, MGL must or must procure the transfer of the legal and beneficial title to the Buyer of such assets.

 

4.6 Health Fund Contracts

 

  (a) Subject to the terms of each Health Fund Contract in Part D1 and D2 of Schedule 5, MGL and the Buyer agree that they will, each at their own expense, use their respective reasonable endeavours, to effect the transfer to the Buyer of that part of the benefits and obligations of any Seller Group Member under the Health Fund Contract that relates to the Hospital Business by agreeing with the counterparty to the Health Fund Contract:

 

  (i) to amend the terms of the Health Fund Contract to remove from the Health Fund Contract those benefits and obligations under the Health Fund Contract that relate to the Hospital Business; and

 

  (ii) that the counterparty will enter into a new contract with the Buyer or any Group Member in respect of the benefits and obligations between the counterparty and the Buyer that relate to the Hospital Business.

 

  (b) In respect of each Health Fund Contract in Part D1 of Schedule 5, if transfer pursuant to paragraph 4.6(a) above cannot be effected within 2 months after Completion, MGL will seek to assign or novate the Health Fund Contract in accordance with the process in clause 4.1 and clauses 4.1, 4.2, 4.3 and 4.4 shall thereafter apply to the Health Fund Contract (where all references to a Hospital Business Contract - Seller Group in those clauses shall be taken to be a reference to the Health Fund Contract). If assignment or novation occurs in accordance with this clause 4.6(b):

 

  (i) MGL may in its absolute discretion appoint the Buyer to act as its agent under the assigned or novated Health Fund Contract in respect of each C&P Hospital (until C&P Completion occurs for the relevant C&P Hospital Business); and

 

  (ii) of each of the Health Fund Contracts with Medibank Private Limited and AXA Limited, MGL must procure that any Hospital Company and Subsidiary which has appointed MGL to act as its agent under that Health Fund Contract assigns to the Buyer all the benefits of the agency arrangements and the Buyer must Assume all obligations under the agency arrangements.

 

  (c) In respect of each Health Fund Contract in Part D2 of Schedule 5, if transfer pursuant to paragraph 4.6(a) above cannot be effected, for the avoidance of doubt, MGL will not be required to assign or novate to the Buyer any rights or obligations under the Health Fund Contracts.

 

  (d) In respect of each Health Fund Contract in Part D3 of Schedule 5, MGL will seek to assign or novate such Health Fund Contracts in accordance with the process in clause 4.1 and clauses 4.1, 4.2, 4.3 and 4.4 shall thereafter apply to the Health Fund Contract (where all references to a Hospital Business Contract - Seller Group in those clauses shall be taken to be a reference to the Health Fund Contract).


  (e) If a Health Fund Contract is terminated in accordance with the terms of the Health Fund Contract by the counterparty to the Health Fund Contract in respect of any Hospital Companies or Subsidiaries, MGL shall not be liable for any Liability suffered or incurred by the Buyer as a result of such termination.

 

4.7 Key Contracts

 

  (a) MGL acknowledges that the Buyer considers that the Key Contracts are essential to the efficient operation of the Hospital Business and it will (and must procure any Relevant Seller Group Member to) use its best endeavours (excluding paying money or providing other valuable consideration to or for the benefit of any person) to secure novation or assignment of those contracts in accordance with clause 4.1 or partial transfer or assignment in accordance with clause 8 (as the case may be) and ensure that sufficient resources are applied to that task.

 

  (b) MGL will (and must procure any Relevant Seller Group Member to) continue to use its best endeavours for as long as is reasonably necessary notwithstanding any time limitation specified in clause 4.1.

 

5. Novation and Assignment of Leases- Seller Group

 

5.1 Novation or assignment on Completion

 

  (a) From the date of this Deed until the date which is 12 calendar months after Completion (“Termination Option Date”), MGL must (and must procure that any Relevant Seller Group Member) use its best endeavours (excluding paying money or providing other valuable consideration to or for the benefit of any person) to obtain all necessary consents to, and to secure, at its discretion, the:

 

  (i) novation to the Buyer with effect from Completion of those of the Leases - Seller Group as are listed in Part A of Schedule 8 on the terms set out in Part A of Schedule 9; or

 

  (ii) assignment to the Buyer by and with effect from Completion of the Leases - Seller Group as are listed in Part A of Schedule 8 on the terms set out in Part B of Schedule 9.

 

  (b) The Buyer must accept such novation or assignment, assist and co-operate with MGL and each other party to the relevant Leases - Seller Group and the Buyer must execute any agreements or deeds, that may reasonably be required by the relevant other party as a condition of the other party’s consent.

 

  (c) Subject to Completion, MGL (on behalf of the relevant Seller Group Member) hereby assigns to the Buyer with effect on and from Completion the benefit of those of the Leases - Seller Group which are not listed in Schedule 8 to the extent to which their assignment is permitted without the consent of the other party to such Leases - Seller Group.

 

5.2 Obligations pending or if no novation or assignment

 

If any of the Leases - Seller Group referred to in clause 5.1 or otherwise, are not novated or assigned to, or for the benefit of, the Buyer, on and from Completion, then until any novation or assignment occurs or until the Leases- Seller Group are terminated or expire under clause 5.3 or otherwise:

 

  (a) MGL must, to the extent it is lawfully able, procure that the Lease - Seller Group continues in full force and effect and must allow (and must procure that any relevant Seller Group Member allows) the Buyer to use or occupy the properties the subject of the Lease - Seller Group as licensee; and


  (b) the Buyer or the Group must to the extent that it is lawfully able, perform on behalf of the relevant Seller Group Member all obligations of the Seller Group Member under or arising out of that Leases - Seller Group whether arising before, on or after Completion (and the relevant Seller Group Member must facilitate this); and

 

  (c) to the extent that the Buyer and/or the Group is not lawfully able to perform any obligation or exercise any right of a Seller Group Member, the relevant Seller Group Member must, on the request and at the reasonable expense of the Buyer and/or the Group, perform that obligation or exercise that right provided that:

 

  (i) the relevant Seller Group Member is lawfully able and capable of doing so and will not suffer any resulting Liability; and

 

  (ii) the Buyer provides timely instructions to the Seller Group Member as to how it requires the Seller Group Member to exercise that right, failing which the Seller Group Member may exercise that right as it thinks fit.

 

5.3 Obligations if novation or assignment is not possible

 

If:

 

  (a) the Termination Option Date has expired; or

 

  (b) the relevant third party to the Leases- Seller Group has given written notice to MGL or the Buyer that it does not consent to novation or assignment of the Leases - Seller Group; or

 

  (c) the relevant third party provides its consent to novation or assignment of the Leases- Seller Group on conditions which are not reasonably acceptable to MGL or the Buyer,

 

then, subject to clause 5.4:

 

  (d) MGL may, at its discretion, terminate or breach the Leases - Seller Group provided that it consults with the Buyer in good faith and gives reasonable notice in writing to the Buyer before such termination or breach;

 

  (e) MGL must if possible under the terms of the Leases - Seller Group terminate the Leases - Seller Group at the written direction of the Buyer; or

 

  (f) unless that Lease - Seller Group is terminated in accordance with clauses 5.3(d) or (e), MGL may at its discretion ensure that each such Lease - Seller Group continues in full force and effect and is held for the benefit of the Buyer or the Group and the Buyer must pay all amounts then due and payable and which may become due and payable under the relevant Lease - Seller Group.

 

5.4 Indemnities

 

From Completion, the Buyer indemnifies each Seller Group Member against any Liabilities suffered or incurred by it in relation to:

 

  (a) any Lease - Seller Group terminated or breached under:

 

  (i) clause 5.3(d), to the extent that such document was included in Schedule 8;


  (ii) clause 5.3(e);

 

  (b) any Lease - Seller Group referred to in clause 5.3(f); and

 

  (c) termination by the relevant third party of any Lease - Seller Group,

 

whether arising before, on or after Completion, including any Liabilities suffered or incurred by it in complying with its obligations or exercising its rights under that contract or as a result of terminating or breaching that contract.

 

6. Contracts - Group

 

6.1 Consent to change in control

 

  (a) If the agreement or consent of any other party is required pursuant to the terms of any Hospital Business Contract - Group, Equipment Leases - Group (and any master lease agreement or like instrument relating to the Equipment Leases - Group) or Lease - Group to the change in control of any Group Member which occurs as a result of the transactions contemplated by this Deed (a “Required Consent”), MGL must (and must procure any Relevant Seller Group Member to) use its reasonable endeavours (excluding paying money or providing other valuable consideration to or for the benefit of any person other than as specifically contemplated by this clause 6) to procure the Required Consent with effect from Completion, on terms reasonably acceptable to both the Buyer and MGL.

 

  (b) The Buyer must co-operate with MGL and the relevant counterparty or counterparties, and must execute any agreements or deeds, that may reasonably be required by the other party as a condition of giving its agreement or consent to the change in control including in the case of the Equipment Leases - Group, entering into a new master lease agreement (or master lease agreements) with the relevant counterparty or counterparties to govern the relevant Equipment Leases - Group (or any of them) on and from Completion.

 

6.2 Obligations following Completion

 

  (a) If the parties are unable to obtain a Required Consent prior to Completion the parties must continue to use their best endeavours (excluding paying money or providing other valuable consideration to or for the benefit of the other party other than as specifically contemplated by this clause 6) for a period of six months after Completion to procure that that consent is obtained.

 

  (b) If it is not possible to obtain any Required Consent within the period specified in clause 6.2(a) then the Buyer must procure that the relevant Group Member performs and completes all of its obligations under the relevant Hospital Business Contract - Group, Equipment Lease - Group or Lease - Group, as applicable, in respect of the period following Completion.

 

  (c) The Buyer indemnifies each Seller Group Member against all Liabilities arising under any of the Hospital Business Contracts - Group, Equipment Leases - Group and the Leases - Group arising after Completion.


7. Release of Seller’s Guarantees

 

7.1 Release

 

The Buyer must use its best endeavours (excluding paying money or providing other valuable consideration to or for the benefit of any person) to secure, before Completion, the unconditional release of each Seller Group Member from the Seller’s Guarantees effective from Completion and MGL must use all reasonable endeavours to assist the Buyer in this regard.

 

7.2 Indemnity

 

  (a) From Completion, the Buyer indemnifies each Seller Group Member against any Liability which it suffers, incurs or is liable for, directly or indirectly, in relation to any Seller’s Guarantee.

 

  (b) MGL enters into this document for itself and each other person who has given a Seller’s Guarantee and accordingly accepts the full benefit of this clause 7.2 on behalf of those persons. The parties agree that MGL may enforce this provision on behalf of those other persons.

 

8. Shared arrangements

 

8.1 Shared Contracts

 

  (a) Subject to the terms of each Shared Contract and the Shared Services Agreement, MGL and the Buyer agree that they will, each at their own expense, use their respective reasonable endeavours to effect the transfer to the Buyer of that part of the benefits and obligations of any Seller Group Member under the Shared Contract that relates to the Hospital Business with effect on and from Completion by either:

 

  (i) agreeing with the counterparty to the Shared Contract:

 

  A. to amend the terms of the Shared Contract to remove from the Shared Contract those benefits and obligations under the Shared Contract that relate to the Hospital Business; and

 

  B. that the counterparty will enter into a new contract with the Buyer or any Group Member in respect of those benefits and obligations between the counterparty and the Buyer; or

 

  (ii) if transfer pursuant to sub-paragraph (i) above cannot be effected, by assigning to the Buyer (to the extent permitted by the Shared Contract) that part of the benefits and the Buyer Assuming that part of the obligations under the Shared Contract that relate to the Hospital Business.

 

  (b) If transfer cannot be effected by one of the methods contemplated in clause 8.1(a) then to the extent that the Shared Contract permits, MGL agrees to procure that the Relevant Seller Group Member will, and the Buyer agrees that it will, after Completion conduct its business on the basis that the benefits and obligations under the Shared Contract had been assigned and Assumed as contemplated in clause8.1(a)(ii).

 

  (c) The Buyer indemnifies the Seller Group Member which is party to the Shared Contract against all Liabilities suffered or incurred by the Seller Group Member arising from any breach by any Buyer Group Member of the Shared Contract after its partial assignment pursuant to clause 8.1(a)(ii).


  (d) MGL indemnifies the Buyer against any Liability suffered or incurred by it as a result of any breach by the Seller Group Member under, or relating to, any retained part of a Shared Contract after the partial assignment to the Buyer pursuant to clause 8.1(a)(ii).

 

9. Employees and Independent Contractors

 

9.1 Provision of employment or engagement

 

  (a) The Buyer must offer employment to each of the Employees - Seller Group and the engagement of each of the Independent Contractors - Seller Group to commence from the day after the Completion Date. The offer of such employment or engagement (as the case may be) must be communicated to the Employees - Sellers Group or the Independent Contractors - Seller Group in such form as the parties agree, at least 10 Business Days before the Completion Date. The employment or engagement (as the case may be) so offered must be for a position substantially similar to the relevant Employee’s or Independent Contractor’s position immediately prior to Completion and must be on terms and conditions (including as to superannuation (as applicable)) that are in the aggregate no less favourable than those on which the relevant Employee is employed or relevant Independent Contractor is engaged immediately prior to Completion provided that, except to the extent that the Buyer otherwise determines in its absolute discretion, in no circumstances will any Employee be offered or be entitled to seek membership of any defined benefits superannuation fund.

 

  (b) The Buyer must continue to provide employment to each Employee - Group on terms and conditions (including as to superannuation) that are in the aggregate no less favourable than those on which the relevant Employee - Group is employed immediately prior to Completion.

 

  (c) If MGL can reasonably establish (prior to the date which is 3 months after Completion) that any Employee - Group is in fact an Employee - Seller Group employed exclusively in the Hospital Business, then MGL may, at any time within the period of one month after establishing that fact, serve notice to that effect upon the Buyer and the Buyer must offer employment to that Employee. The offer of such employment must be communicated to that Employee by the Buyer in the form agreed to between the parties within 5 Business Days of receipt of such notice. The employment so offered must be deemed to commence from the day after the Completion Date and be for a position substantially similar to the relevant Employee’s position immediately prior to Completion and must be on terms and conditions (including as to superannuation) that are in the aggregate no less favourable than those on which the relevant Employee is employed immediately prior to Completion.

 

9.2 Payments to Employees and Independent Contractors

 

  (a) Subject to clauses 9.2(d) and 9.2(e), on Completion (or in the case of bonuses for the year ending on 30 June 2003, in accordance with the Seller Group’s usual practice), if it has not already done so, MGL or the Relevant Seller Group Member must pay to each Employee:

 

  (i) the amount of his or her wage or salary entitlements;

 

  (ii) elected salary sacrifice amounts;

 

  (iii) bonuses for any year ending on or prior to 30 June 2003;


  (iv) commissions (for the avoidance of doubt excluding annual leave, sick leave, rostered day off leave and long service leave entitlements) and in respect of Independent Contractors all other amounts payable in relation to services provided by the Independent Contractors; and

 

  (v) in respect of Independent Contractors - Seller Group, all other amounts payable in relation to services provided by the Independent Contractors - Seller Group,

 

accrued up to and payable to them on or before Completion pursuant to:

 

  (i) a contract of employment;

 

  (ii) Australian Workplace Agreement, award, certified agreement under the Workplace Relations Act 1996;

 

  (iii) enterprise agreement registered under State Law; or

 

  (iv) other form of agreement provided for under an industrial statute, Law or otherwise,

 

to which any Seller Group Member was a party, and on the same terms that applied as, at Completion.

 

  (b) MGL must pay to each Employee any payment or inducement it has promised on completion of the transactions contemplated by the Transaction Agreements.

 

  (c) MGL indemnifies the Buyer against all claims made by such Employees from time to time after the Completion Date against the Buyer in relation to clause 9.2(a).

 

  (d) MGL or the relevant Seller Group Member will not be required to pay any amount referred to in clause 9.2(a) to the extent to which such amount is recorded as a “liability” in the Completion Accounts.

 

  (e) For the avoidance of doubt, clause 9.2(a) does not require any Seller Group Member to make any retirement, redundancy, termination or severance payments of the nature described in clause 9.4(d).

 

9.3 Recognition of prior service

 

The Buyer must treat each Employee and deal with every entitlement (including annual and sick leave, rostered day off leave and prior service for the purpose of calculating long service leave and redundancy or severance payments (as applicable)) as if every entitlement had been accrued by the respective Employee while in the employment or engagement of the Buyer.

 

9.4 Indemnity for Employees and Independent Contractors

 

Subject to Completion, the Buyer will be solely responsible for and indemnifies each Seller Group Member against any Liability it suffers or incurs in respect of:

 

  (a) wages, salary and any other payment, benefit or amount owing to Employees and attributable to their employment after Completion or, in the case of bonuses, attributable to their employment after 30 June 2003;

 

  (b) fees, charges and any other payment, benefit or amount owing to Independent Contractors and attributable to their engagement after Completion;

 

  (c) annual leave, sick leave, rostered day off leave, long service leave and any other form of leave payment owing to Employees and attributable to their employment or engagement up to or after Completion; and


  (d) retirement, redundancy, contract termination or severance payments, benefits, costs or compensation of any kind (including payment in lieu of notice, severance payments howsoever called, in respect of annual leave, sick leave, rostered day off leave, long service leave and any other form of leave payments owing and payments in respect of goodwill) payable under a contract of employment or engagement, Australian Workplace Agreement, award, agreement (certified, registered or otherwise) or other arrangement or an award or order made by a Court or other tribunal or Government Authority under Law, to any Employee or Former Employee and whether attributable to their employment or engagement before or after their commencement with a Group Member or Seller Group Member arising from or in respect of a termination or cessation of their employment or engagement by any Seller Group Member or Group Member before, on or after Completion.

 

To the extent that this clause provides indemnification for a contractor, such indemnification will apply to any Liability arising in respect of any direct or indirect sub-contractor of that contractor.

 

9.5 Pre-Completion Employee Arrangements

 

With effect from the date of this Deed until Completion (“Liaison Period”), MGL must procure that no Seller Group Member or Group Member in respect of or relating to some or all of the Employees enters into, or agrees to enter into, any industrial award, agreement (certified, registered or otherwise) or other arrangement or understanding concerning some or all of such employees and/or contractors (“Arrangement”) except in the ordinary course of business as determined by the Group General Manager Hospitals.

 

9.6 Disclosure of industrial developments

 

9.7 During the Liaison Period, if:

 

  (a) a Seller Group Member or Group Member proposes to enter into, agree to enter into, or to initiate or participate in any negotiations or discussions in respect of, any Arrangement;

 

  (b) there is any other industrial development (including actual, threatened or pending industrial action, disputation, litigation or proceedings) (“Industrial Action”) in respect of or relating to some or all of the Employees (“Business Persons”); or

 

  (c) any meeting or discussions will, or are proposed to, be held or occur between representatives of a Seller Group Member or Group Member and representatives of a union, employee organisation or Business Persons relating to some or all of the Business Persons,

 

9.8 (each an “Industrial Event”), then MGL must:

 

  (a) keep the Buyer informed of the Industrial Event including the circumstances giving rise to, and the reasons for, and the ongoing status of the Industrial Event and the associated circumstances;

 

  (b) provide the Group General Manager Hospitals, with full and free access to all correspondence, notices, documents and other records in the possession or control of any Seller Group Member or Group Member relating to the Industrial Event;


  (c) in the case of any such proposed meeting or discussion, give the Group General Manager Hospitals the right to attend and participate in any such meeting or discussions and give him reasonable notice of the time and place of the meeting or discussions, together with details of the proposed topics of discussion;

 

  (d) keep the Buyer informed of the outcome of any meetings with unions during the Liaison Period; and

 

  (e) except to the extent such would breach any Law, comply with any conditions and requirements notified, and written directions given, by the Buyer in accordance with clause 9.7.

 

9.9 Management of industrial relations and disputes

 

If an Industrial Event occurs or arises at any time during the Liaison Period:

 

  (a) the Buyer may, in its absolute discretion, do any or all of the following in respect of any proposed Arrangement:

 

  (i) consent to the Arrangement either unconditionally or subject to such conditions or requirements as are notified by the Buyer to MGL; or

 

  (ii) withhold its consent to the Arrangement without giving reasons; and

 

  (b) MGL will procure that any relevant Seller Group Members or Group Members take (or fail to take) or do (or fail to do) any action or thing in respect of, arising out of, or in connection with, that Industrial Event or the circumstances giving rise to the Industrial Event as reasonably determined by the Group General Manager Hospitals including, in the case of any Industrial Action, relating to the conduct of any dispute or of any litigation or proceedings in any industrial tribunal or court.

 

9.10 Risk mitigation

 

Without in any way limiting the obligations imposed by clause 9.7, during the Liaison Period, MGL must consult with the Buyer and ensure that each Seller Group Member and Group Member takes all action and does all things within its power to limit the risk of any of the Business Persons making or bringing any claim, demand, action or proceedings in respect of retirement, redundancy, severance payments or any similar costs (“Redundancy Payments”), including:

 

  (a) being prepared to accept the resignation of Employees who are not covered by an industrial award or agreement (certified, registered or otherwise) and who resign to accept an offer of employment with the Buyer on the terms contemplated by the form of offer applicable to that employee;

 

  (b) using reasonable endeavours to adopt and maintain the position that Employees will not be entitled to a Redundancy Payment if they refuse to accept an offer of employment or engagement by the Buyer;

 

  (c) making all applications to relevant industrial tribunals as are available to any Seller Group Member or Group Member to remove any obligations that would otherwise apply under any industrial awards or agreements (whether certified, registered or otherwise) to make Redundancy Payments in respect of any employees or contractors because of the offers of suitable alternative employment or engagement to be made, or made, by the Buyer in accordance with this Deed, whether or not those offers are accepted by those employees or contractors;


  (d) co-operating with the Buyer to seek to secure:

 

  (i) the agreement and support of all relevant unions and employee organisations in respect of all applications referred to in clause 9.8(c); and

 

  (ii) union endorsement of the position referred to in clause 9.8(b) having regard to the offers of suitable alternative employment or engagement to be made, or made, by the Buyer to Employees.

 

9.11 Costs of Applications

 

The Buyer indemnifies each Seller Group Member against any Liability it suffers or incurs in respect of the costs arising from any application to relevant industrial tribunals under clause 9.10(c).

 

9.12 Employee Lists and Independent Contractors

 

As soon as possible following the date of execution of this Deed, but in any event no later than 14 days after that date, MGL will provide to the Buyer:

 

  (a) a current list of the Employees which will contain the following details in relation to each individual:

 

  (i) the individual’s full name;

 

  (ii) the Hospital location in which the individual is employed;

 

  (iii) the individual’s employer;

 

  (iv) the individual’s employment classification/position;

 

  (v) the individual’s current mailing address; and

 

  (vi) whether the individual is a defined benefit superannuation member; and

 

  (b) a current list of the Independent Contractors which will contain the following in respect of each individual:

 

  (i) the individual’s full name;

 

  (ii) the Hospital/location in which the individual is employed;

 

  (iii) the entity which engages the individual;

 

  (iv) the individual’s classification/position as an Independent Contractor; and

 

  (v) the individual’s current mailing address.

 

10. Superannuation

 

  (a) The Buyer shall make available or establish by the Completion Date one or more suitable superannuation funds (“Buyer’s Fund”) to provide superannuation benefits for those of the Transferring Employees who agree to become members of the Buyer’s Fund, and the Employees - Group who are members of the Seller’s Superannuation Fund as at the Completion Date (“Transferring Members”).

 

  (b) The Seller and the Buyer may agree in writing that special arrangements shall apply in respect of one or more Transferring Employees or Employees - Group.

 

38


  (c) Subject to paragraph (d), except for a Transferring Employee or Employee - Group covered by an arrangement made under paragraph (b), the Buyer must:

 

  (i) provide superannuation benefits for the Transferring Employees and the Employees - Group which, taken as a whole, shall be no less favourable than those provided to them by their employer as at the Completion Date; and

 

  (ii) ensure that the Buyer’s Fund shall be capable of being a Successor Fund to the Seller’s Superannuation Fund in respect of the Employees - Group,

 

save and except that the Transferring Employees and Employees - Group shall have no rights and no provision shall be made for any right to any surplus in the Seller’s Superannuation Fund and the Seller shall ensure that they shall not suffer any reduction in benefits or amounts transferred to the Buyer’s Fund representing or otherwise attributable to any deficit or under-funding in the Seller’s Superannuation Fund.

 

  (d) The Seller agrees that notwithstanding paragraph (c), the Buyer is not required to provide defined benefit style benefits to any Transferring Members who were entitled to defined benefits in the Seller’s Superannuation Fund.

 

  (e) The Buyer must pay for all costs in establishing (or making available) the Buyer’s Fund. For the avoidance of doubt, these costs will include all legal costs incurred in reviewing the trust deed, including any cost incurred in amending that trust deed, regardless or whether or not the proposed fund is accepted as a Successor Fund to the Seller’s Superannuation Fund by the trustee of the Seller’s Superannuation Fund.

 

  (f) Subject to paragraphs (d) and (g), the Buyer and the Seller must use their best endeavours to facilitate, within 90 business days after the Completion Date, the transfer of the Employees - Group and their superannuation benefits from the Seller’s Superannuation Fund to the Buyer’s Fund without their consent, in the circumstances permitted by superannuation law, on the basis that the Buyer’s Fund is a Successor Fund.

 

  (g) For a Transferring Member:

 

  (i) covered by an arrangement made under paragraph (b); or

 

  (ii) who is a Transferring Employee; or

 

  (iii) who is an Employee - Group where the trustee of the Seller’s Superannuation Fund and the trustee of the Buyer’s Fund fail to agree that the Buyer’s Fund is capable of being a Successor Fund to the Seller’s Superannuation Fund in respect of that employee within 90 business days after the Completion Date,

 

the Buyer shall allow that Transferring Member to voluntarily transfer his or her superannuation benefits in the Seller’s Superannuation Fund to the Buyer’s Fund. In the case of a Transferring Employee such voluntary transfer shall be in lieu of the benefit to which the Employee - Group is entitled on Completion.

 

  (h) The Seller will procure that the amount transferred in respect of each Transferring Member from the Seller’s Superannuation Fund to the Buyer’s Fund shall be at least equal to the Transferring Member’s member’s reserve in the Seller’s Superannuation Fund as at the Completion Date, adjusted for earnings at the estimated earning rate of the Seller’s Superannuation Fund in respect of the period from the Completion Date to the date the relevant amount is transferred.


  (i) Notwithstanding anything to the contrary in this Deed, each Transferring Employee will have the right to access their benefit at Completion in accordance with the provisions of the governing rules of the Seller’s Superannuation Fund and any applicable laws.

 

  (j) The Buyer will provide, and procure the trustee of the Buyer’s Fund to provide, to the trustee of the Seller’s Superannuation Fund all information that the trustee of the Seller’s Superannuation Fund reasonably needs to facilitate a transfer of the Transferring Members and their benefits to the Buyer’s Fund under a Successor Fund transfer.

 

  (k) The Seller will use its best endeavours to procure that the trustee of the Seller’s Superannuation Fund provides to the trustee of the Buyer’s Fund all information that the trustee of the Buyer’s Fund reasonably needs to facilitate a transfer of the Transferring Members and their benefits to the Buyer’s Fund under a Successor Fund transfer, and such other information that the Buyer or the trustee of any superannuation fund nominated by the Buyer reasonably requires to administer any benefits or enable any benefits to be provided to each Transferring Employee and Employee - Group.

 

  (1) On Completion, the Seller and the Buyer will immediately cause each member of the Group who is associated with the Seller’s Superannuation Fund, whether as a principal employer, associated employer, participating employer or otherwise, to take all steps necessary to end that association with effect from Completion.

 

  (m) Notwithstanding anything to the contrary in this Deed, and for the avoidance of doubt, the Buyer acknowledges that on and from Completion, no member of the Group shall have any rights in relation to the Seller’s Superannuation Fund (whether arising under the trust deed for the Seller’s Superannuation Fund or otherwise).

 

11. Trade Debts - Seller Group

 

  (a) From Completion, the Buyer shall be solely responsible for the collection of the Trade Debts - Seller Group. Except as provided in this clause 11, no Seller Group Member is obliged to take or continue, alone or jointly with the Buyer, any action with respect to the Trade Debts - Seller Group.

 

  (b) If requested by the Buyer, MGL will procure that the relevant Seller Group Member will execute joint notices in a form acceptable to both parties addressed to each Trade Debtor - Seller Group notifying the Trade Debtors - Seller Group of the assignment of the Trade Debts - Seller Group.

 

  (c) If any Seller Group Member receives any payment from any Trade Debtor in respect of any Trade Debt after the Completion Date, MGL will procure that the relevant Seller Group Member accounts to the Buyer for the amount received within 5 Business Days after its receipt.

 

12. Plant and equipment

 

  (a) The Buyer acknowledges and agrees that the Fixed Assets - Seller Group may include plant and equipment which is a fixture or a tenant’s fixture or a part of the land on which it is situated.


  (b) Notwithstanding that the Buyer vacates the Premises at or any time after Completion, the Buyer may not make any claim against any Seller Group Member in relation to the value or classification of such items of Fixed Assets - Seller Group on the basis of them being fixtures, tenant’s fixtures or part of the land on which they are being situated (apart from any claim it may be entitled to make under the Warranties (as defined in the Umbrella Deed)).

 

13. Liabilities

 

  (a) The Buyer must Assume on and from Completion the Assumed Liabilities and any other Liability which any Seller Group Member suffers or incurs, whether arising before, on or after Completion, exclusively in relation to the Hospital Business.

 

  (b) From that time, the Buyer will be solely responsible for and must indemnify each Seller Group Member against any such Liability.

 

14. Tax

 

14.1 Tax Indemnity

 

MGL indemnifies the Buyer and each Group Member from and against all Tax Claim Amounts suffered or incurred in respect of any Tax Claim.

 

14.2 Rights of the Buyer Group Members and Enforcement of the Tax Indemnity

 

  (a) MGL acknowledges and confirms in favour of the Buyer and each Group Member that the Tax Indemnity given by MGL is for the benefit of the Buyer and each Group Member.

 

  (b) Each Group Member may enforce its rights in relation to the Tax Indemnity independently from each other and even though not a party to this Deed.

 

14.3 Restrictions on claims under the Tax Indemnity

 

The obligations of MGL under the Tax Indemnity do not apply in respect of a Tax Claim:

 

  (a) to the extent that the Tax Claim arises from the failure by the Buyer to supply to MGL on a timely basis information available to any Buyer Group Member which is reasonably requested by MGL in relation to a Tax Claim;

 

  (b) to the extent that the Tax Claim arises from the failure by any Buyer Group Member after Completion, in a timely and appropriate manner, to:

 

  (i) lodge any return, notice, objection or other document that gives rise to or relates to the Tax Claim;

 

  (ii) claim all or any portion of any relief, allowance, deduction, credit, rebate or right to repayment which is available to a Buyer Group Member as at Completion to the extent that information sufficient to make the claim was or might reasonably be expected to have been within the knowledge of any Buyer Group Member;

 

  (iii) disclose or correctly describe in any return, notice, objection or other document relating to the Tax Claim lodged, given or made after Completion, any fact, matter or thing to the extent that it was or might reasonably be expected to have been within the knowledge of any Buyer Group Member; or


  (iv) take any action which any Buyer Group Member is required to take under this clause 14 or any laws relating to Tax, or (provided that it does not result in any material disruption to the Hospital Business) which would have been necessary or appropriate to take in order to prevent the occurrence or existence of grounds for a Tax Claim provided that it has no material adverse effect to the Buyer Group;

 

  (c) arises as a result of any Buyer Group Member amending after Completion any Tax returns for a period ending on or prior to the Last Accounts Balance Date or changing the basis on which the income and deductions in relation to such Tax returns was computed (whether such change relates to a period ending before or after the Last Accounts Balance Date) other than in respect of an amendment approved in writing by MGL (which approval shall not be unreasonably withheld or delayed provided it does not cause a material adverse effect to MGL) or as otherwise required by Law;

 

  (d) to the extent that the Tax Claim arises as a result of a change to the Tax Act, its interpretation by a Court of Law or its interpretation by the Australian Taxation Office as set out in a published ruling or interpretative decision, after Completion that applies to any of the Buyer Group members;

 

  (e) to the extent that the Tax Claim arises as a result of the Buyer’s non-compliance with this clause 14 in a material respect; and

 

  (f) to the extent the Tax Claim is for an amount that has been provided for in the Completion Accounts.

 

14.4 Timing of payments

 

Payments under the Tax Indemnity must be made to the Buyer (or at the Buyer’s request, to any other Buyer Group Member) by whichever is the later of:

 

  (a) 5 Business Days before the latest date on which that payment of Tax may lawfully be made without incurring any penalty, additional tax, interest or general interest charge for late payment (allowing for any deferrals granted by the Revenue Authority); and

 

  (b) 10 Business Days after MGL receives notice in writing from the Buyer providing full and accurate particulars of the Tax Claim (with copies certified by the Buyer of all supporting documentation) sufficient for MGL to verify the accuracy of the Tax Claim, provided that MGL does not dispute its liability in respect of the tax claim.

 

14.5 Late Payments

 

If any sums required to be made by MGL under or relating to the matters in this clause 14 are not paid on the date specified in clause 14.4 (the Due Date), then, except to the extent that MGL’s liability under clause 14.1. compensates the Buyer or the relevant Group Member for the late payment by virtue of it extending to interest, penalties, fines or other costs, such sums shall bear interest (which shall accrue from day to day after as well as before any judgement for the same) at the Interest Rate, compounded quarterly, from the day following the Due Date up to and including the day of actual payment of such sums.


14.6 Notice of Potential Tax Claims and Tax Claims Procedure

 

  (a) If any Buyer Group Member:

 

  (i) receives a letter, request, demand, notice, or communication (“communication”); or

 

  (ii) intends to lodge a self-assessed return that will have effect as a deemed assessment (“return”),

 

that may reasonably be related to or give rise to a Tax Claim, the Buyer must:

 

  (iii) within 10 Business Days of the receipt of a communication within paragraph (i), inform MGL and provide a copy of any document received relating to the communication;

 

  (iv) not later than 20 Business Days before a lodgement of return within paragraph (ii), inform MGL and provide a copy of the relevant return or parts of the return, and shall consult in good faith with MGL concerning the reasons for that return;

 

  (v) in relation to a communication within paragraph (a)(i), consistently with any applicable statutory obligations, not engage in any discussions, negotiations or confer with any representatives of the Revenue Authority concerning the communication received without first complying with the requirements of paragraphs (b) and (c) of this subclause.

 

If any Buyer Group Member becomes aware of a Tax Claim, whether or not notice has been given under the above the Buyer must give timely and written notice of it to MGL.

 

  (b) The Buyer must ensure that MGL and its professional advisers have, at the Buyer’s expense, reasonable access to the personnel of the Buyer Group and to any relevant premises, assets and records within the custody, power, possession or control of any Buyer Group Member to enable MGL and its professional advisers to examine the communication, return or Tax Claim and records relating to them and to take copies or photographs of them, at the reasonable expense of MGL, provided MGL and its professional advisers give to the relevant Buyer Group Member such undertakings as to confidentiality as the Buyer may reasonably require.

 

  (c) The Buyer must ensure that all Buyer Group Members take any proper and reasonable action that MGL requests to, as applicable:

 

  (i) respond to the communication or to make changes to the return in order to give effect to the taxation treatment considered by MGL to have the greatest likelihood of not giving rise to a Tax Claim; or

 

  (ii) avoid, resist, compromise or defend a demand or notice issued by a Revenue Authority which gives rise to the Tax Claim,

 

provided MGL indemnifies the relevant Buyer Group Member against any reasonable costs or expenses which may be incurred as a result of compliance with MGL’s request and, in addition, MGL pays to the Buyer any Tax which is required to be paid to a Revenue Authority to enable such action to be taken.

 

  (d) The action that MGL may request be taken by any Buyer Group Member in respect of a Tax Claim includes the making of objections and appeals, and administrative law remedies.

 

  (e) Any action requested by MGL under this clause 14 must be taken in a timely manner.


  (f) If the Buyer becomes aware of a Tax Claim, consistently with any applicable statutory obligations, the Buyer must not, and must ensure that no Buyer Group Member does, engage in any discussions, negotiations or confer with any representatives of the Revenue Authority concerning the Tax Claim without first complying with the requirements of paragraphs (a), (b) and (c)(ii) of this subclause.

 

  (g) If MGL makes a request under paragraph (c)(ii) regarding the lodgement of a notice of objection, but MGL and the Buyer are unable to reach agreement concerning the response to the Tax Claim within sixty (60) Business Days after the Buyer has notified MGL of the Tax Claim (or any shorter time required by law for the objection, appeal or administrative law remedy), MGL may refer the dispute to an expert (as referred to in clause 14.9(b)), which shall apply to this provision with such modifications as are appropriate. The notice of objection shall then be prepared in the manner considered by the expert to have the most reasonable prospects of success.

 

  (h) If:

 

  (i) an objection duly lodged under this clause is disallowed by the Revenue Authority; or

 

  (ii) an appeal made, or administrative remedy taken, in accordance with this clause is decided against the interests of MGL; or

 

  (iii) the Revenue Authority appeals against a decision given in the interests of MGL,

 

then:

 

  (iv) the Buyer shall promptly give written notification of the facts and circumstances to MGL; and

 

  (v) MGL may require any Buyer Group Member to make such further appeal, or defence of appeal, or seek such administrative remedy, as it determines, in which case MGL shall be entitled, if it wishes, to have the control of any such appeal, remedy or defence and in any event the Buyer shall keep MGL fully informed of all matters relating thereto and provide copies to MGL of all documents relating thereto; and

 

  (vi) no further appeal, defence or remedy shall be settled or compromised except in accordance with MGL’s written consent.

 

  (i) MGL may only make a request under paragraph (h) if MGL has obtained an opinion from a Queen’s Counsel or Senior Counsel that the proposed appeal, remedy or defence has a reasonable prospect of success.

 

14.7 Refunds

 

  (a) If, following the making of a payment under the Tax Indemnity all or part of the Tax Claim Amount is refunded either in cash or by credit to any Buyer Group Member (including, but not limited to, any amount or credit received following a successful objection or appeal), the Buyer must immediately pay to MGL the lesser of the refund and the amount paid under the Tax Indemnity.


  (b) If at any time after the Completion Date any Buyer Group Member receives a refund or credit in respect of any Tax levied in respect of a tax year or part prior to Completion:

 

  (i) the Buyer will, or will procure that the Relevant Buyer Group Member will, as the case may be, immediately pay to MGL an amount equal to the amount of such refund or credit (together with any interest paid by the Australian Taxation Office after an appropriate allowance for tax payable by the relevant Buyer Group Member) to the extent that it has not been included in the Completion Statement or in prior years’ accounts of the Company; and

 

  (ii) any such payment by the Buyer under this provision will be by way of, and shall have effect as, a pro rata increase in the purchase price for each Sale Share.

 

14.8 Interest received from a Revenue Authority

 

Provided MGL has complied with clause 14.6(c), to the extent not covered by clause 14.7, if the Buyer Group Member receives an amount of interest from a Revenue Authority in connection with the refund of a Tax Claim Amount, then the Buyer will pay to MGL the amount of interest received by the relevant Buyer Group Member less any Tax payable by the relevant Buyer Group Member on that interest received but only to the extent any payment under this clause 14.8 does not qualify as being tax deductible under the Income Tax Assessment Act 1997 or under the Income Tax Assessment Act 1936 in the income year in which a payment under this clause 14.8 is made.

 

14.9 Expert determination

 

  (a) If MGL and the Buyer cannot agree on any amount to be paid under the Tax Indemnity within 60 Business Days of a dispute arising, or within such further time as may be agreed between them, then MGL may refer the agreement to an expert with the request that the expert make a decision on the disagreement as soon as practicable after receiving any submissions from MGL and the Buyer.

 

  (b) The expert is to be a Senior Counsel or Queen’s Counsel with over 15 years experience in Tax appointed by MGL.

 

  (c) The decision of the expert is to be conclusive and binding on the parties in the absence of manifest error.

 

  (d) Unless the expert makes a determination regarding costs, MGL and the Buyer agree to each pay one half of the expert’s costs and expenses in connection with the reference.

 

  (e) The expert is appointed as an expert and not as an arbitrator.

 

  (f) The procedures for determination are to be decided by the expert in its absolute discretion.

 

14.10 Tax Returns

 

  (a) MGL shall be obliged to prepare and lodge with the appropriate Revenue Authority all Tax returns for any periods ending on or prior to the Last Accounts Balance Date. The Buyer agrees that, in the event such Tax returns have not been lodged prior to the Completion Date it shall provide in a timely manner, such assistance as shall be necessary for the returns to be prepared, signed and lodged.

 

  (b)

The Buyer agrees that MGL shall be entitled, in relation to any periods ending on or prior to the Last Accounts Balance Date, to transfer or procure the transfer of Tax losses from all Group Members to any Seller Group Member for nil consideration.


 

The Buyer agrees that it shall ensure that all Group Members shall provide such assistance as shall be necessary to give effect to such transfer, including without prejudicing the generality of the foregoing, the signing of any loss transfer agreements.

 

14.11 Loan Amounts

 

  (a) Notwithstanding any other provision of the Transaction Agreements, this clause 14.11 shall apply for so long as the Loan Structure exists and for 4 years thereafter.

 

  (b) If any amounts paid to the Buyer or any Buyer Group Member as a loan pursuant to the Loan Structure are assessable to the Buyer or any Buyer Group Member, MGL will indemnify the Buyer or the Buyer Group Member an amount equal to the Tax that would be payable on the amount if the only offset that was taken into account was a credit or offset related to the loan amount.

 

14.12 Limits

 

None of clauses 8.1 to 8.10 of the Umbrella Deed apply to limit any payment that MGL is liable to make in respect of a Tax Claim Amount, except for clauses 8.2(a) and 8.2(b) (Buyer insured), 8.2(e) (Loss only compensated once), 8.2(f) (Buyer otherwise compensated), 8.2(g) (Last Accounts or Umbrella Completion Statement), 8.2(h) (No indirect or consequential loss), 8.2(i) (Legislation), 8.2(j) (Buyer’s actions in relation to Tax), 8.2(n) (Time limits - Non-C&P), 8.4 (Reimbursement for amounts recovered) and 8.6 (Adjustment to Umbrella Purchase Price).

 

14.13 Tax office ruling

 

  (a) Where any private binding ruling is to be obtained from the Australian Taxation Office in relation to the tax treatment of any Asset Sale Deed, MGL will have sole responsibility for the preparation and submission of any such ruling.

 

  (b) The Buyer will not request a private binding ruling or other opinion or determination from the ATO in respect of any Asset Sale Deed where that ruling would apply to MGL or prejudice the position of MGL.

 

  (c) Any request for a private binding ruling in respect of any Asset Sale Deed will be provided to the Buyer 5 Business Days prior to its lodgement with the ATO. The Buyer may request changes in respect of the documents to be submitted, however Seller is only required to agree to the changes where it can be established that they do not prejudice Seller’s position.

 

  (d) MGL will (in the event that it seeks a private binding ruling which would apply to the Buyer or prejudice its position) provide:

 

  (i) a copy of the final request for a private binding ruling, when it is lodged with the ATO;

 

  (ii) a copy of the relevant ruling when it is issued by the ATO; and

 

  (iii) a copy of all related correspondence (including notes of all verbal communications with the ATO) with the ATO which shall be provided within 5 business days of the relevant communication being received or made.


15. Pay as you go (PAYG) instalments

 

15.1 Liability for the PAYG Instalment

 

The Buyer acknowledges and agrees that:

 

  (a) the Hospital Companies and each Eligible Subsidiary will be liable to pay one or more PAYG Instalments after Completion in respect of Instalment Income derived by that Hospital Company or the Eligible Subsidiary prior to Completion;

 

  (b) MGL is entitled to a Seller’s PAYG Credit in respect of any PAYG Instalment covered by clause 15.1(a); and

 

  (c) the Buyer must not vary the Pre-Completion Instalment Rate and the Post-Completion Instalment Rate before the PAYG Payment Date.

 

15.2 Payment of the PAYG Instalment for the Pre-Completion Quarter

 

If:

 

  (a) the Commissioner does not provide an Initial Head Company Instalment Rate to MGL before the commencement of the Completion Quarter; and

 

  (b) a Hospital Company or an Eligible Subsidiary (as the case requires) has not paid their PAYG Instalment for the Pre-Completion Quarter prior to Completion,

 

then:

 

  (c) the PAYG Instalment for the Hospital Company and for each Eligible Subsidiary will be calculated using their Pre-Completion Instalment Rate; and

 

  (d) the Buyer will ensure that the Hospital Company and each Eligible Subsidiary remits their PAYG Instalment for the Pre-Completion Quarter to the Commissioner on or before the PAYG Payment Date.

 

15.3 Payment of the PAYG Instalment for the Completion Quarter

 

If the Commissioner does not provide an Initial Head Company Instalment Rate to the Seller’s Guarantor before the end of the Completion Quarter:

 

  (a) the PAYG Instalment for each Hospital Company and for each Eligible Subsidiary will be calculated using their Post-Completion Instalment Rate; and

 

  (b) the Buyer will ensure that each Hospital Company and each Eligible Subsidiary will remit their PAYG Instalment to the Commissioner on or before the PAYG Payment Date.

 

15.4 Calculation of the PAYG Credit for the PAYG Instalment for the Pre-Completion Quarter

 

If clause 15.2 applies, the Seller’s PAYG Credit will be equal to the sum of the PAYG Instalments.

 

15.5 Calculation of PAYG Credit for the PAYG Instalment for the Completion Quarter

 

  (a) If clause 15.3 applies, both the Seller and the Buyer can be entitled to a PAYG Credit for part of each PAYG Instalment.


  (b) The Seller’s PAYG Credit will be equal to the sum of the amounts calculated in accordance with the following formula in respect of each PAYG Instalment:

 

            PAYG Instalment     x   

Instalment Income derived between the start

of the completion Quarter and Completion Date


     Instalment Income derived during the Completion Quarter

 

  (c) The “Buyer’s PAYG Credit” will be calculated in accordance with the following formula:

 

PAYG Instalment less the Seller’s PAYG Credit

 

15.6 GIC payable in respect of the PAYG Instalment

 

The Buyer agrees to indemnify and keep indemnified MGL against, and must pay MGL on demand the amount of, GIC that becomes payable by MGL because of the Buyer’s failure to comply with clause 15.2 and/or clause 15.3.

 

15.7 Notification of PAYG Instalment

 

The Buyer will notify MGL of the quantum of each PAYG Instalment in writing by 31 days after the end of the Completion Quarter. The notification will be addressed to:

 

Mr Campbell Richards

Group Tax Manager

Mayne Group Limited

GPO Box 1714N

Melbourne VIC 3001


Executed as a deed.

    
Executed for and on behalf of Mayne Group Limited ABN 56 004 073 410 by its Attorneys under Power of Attorney dated 30 January 2002 each of whom declares that he or she holds the office in Mayne Group Limited indicated under his or her signature and that he or she has no notice of revocation of the Power of Attorney   

Mayne Group Limited

ABN 56 004 073 410 by

its Attorneys:

    

/s/ Stuart Bruce James


    

Signature of Attorney

    

Stuart Bruce James


    

Name of Attorney in full

    

DIRECTOR


    

Office

    

/s/ Paul Andrew Binfield


    

Signature of Attorney

    

Paul Andrew Binfield


    

Name of Attorney in full

    

CHIEF FINANCIAL OFFICER


    

Office

Executed by Mayne Healthcare Holdings

Pty Limited ACN 078 954 631 by or in the

presence of:

    

/s/ Stuart Bruce James


  

/s/ Paul Andrew Binfield


Signature of Director

  

Signature of Secretary/other Director

Stuart Bruce James


  

Paul Andrew Binfield


Name of Director in full

  

Name of Secretary/other Director in full


Signed sealed and delivered for and on behalf of Australian Newco Holdings Pty Limited ACN 106 722 347 by its Attorney under a Power of Attorney dated 20 October 2003, and the Attorney declares that the Attorney has not received any notice of the revocation of such Power of Attorney, in the presence of:   

/s/ Philip Kapp


    

Signature of Attorney

/s/ Kate Jordan


  

Philip Kapp


Signature of Witness

  

Name of Attorney in full

Kate Jordan


    

Name of Witness in full

    
Signed sealed and delivered for and on behalf of Joondalup Hospital Pty Limited ACN 106 723 193 by its Attorney under a Power of Attorney dated 20 October 2003, and the Attorney declares that the Attorney has not received any notice of the revocation of such Power of Attorney, in the presence of:   

/s/ Philip Kapp


    

Signature of Attorney

/s/ Kate Jordan


  

Philip Kapp


Signature of Witness

  

Name of Attorney in full

Kate Jordan


    

Name of Witness in full

    


Signed sealed and delivered for and on behalf of Port Macquarie Hospital Pty Limited ACN 106 723 399 by its Attorney under a Power of Attorney dated 20 October 2003, and the Attorney declares that the Attorney has not received any notice of the revocation of such Power of Attorney, in the presence of:   

/s/ Philip Kapp


     Signature of Attorney

/s/ Kate Jordan


  

Philip Kapp


Signature of Witness

  

Name of Attorney in full

Kate Jordan


    

Name of Witness in full

    
Signed sealed and delivered for and on behalf of Logan Hospital Pty Limited ACN 106 723 406 by its Attorney under a Power of Attorney dated 20 October 2003, and the Attorney declares that the Attorney has not received any notice of the revocation of such Power of Attorney, in the presence of:   

 

/s/ Philip Kapp


    

Signature of Attorney

/s/ Kate Jordan


  

Philip Kapp


Signature of Witness

  

Name of Attorney in full

Kate Jordan


    

Name of Witness in full

    


Signed for and on behalf of Melbourne Hospital Pty Limited ACN 106 723 415 by its Attorney under a Power of Attorney dated 20 October 2003, and the Attorney declares that the Attorney has not received any notice of the revocation of such Power of Attorney, in the presence of:   

/s/ Philip Kapp


    

Signature of Attorney

/s/ Kate Jordan


  

Philip Kapp


Signature of Witness

  

Name of Attorney in full

Kate Jordan


    

Name of Witness in full

    
Signed sealed and delivered for and on behalf of Noosa Privatised Hospital Pty Limited ACN 106 723 380 by its Attorney under a Power of Attorney dated 20 October 2003, and the Attorney declares that the Attorney has not received any notice of the revocation of such Power of Attorney, in the presence of:   

/s/ Philip Kapp


    

Signature of Attorney

/s/ Kate Jordan


  

Philip Kapp


Signature of Witness

  

Name of Attorney in full

Kate Jordan


    

Name of Witness in full

    


Signed sealed and delivered for and on behalf of Caboolture Hospital Pty Limited ACN 106 723 219 by its Attorney under a Power of Attorney dated 20 October 2003, and the Attorney declares that the Attorney has not received any notice of the revocation of such Power of Attorney, in the presence of:   

/s/ Philip Kapp


    

Signature of Attorney

/s/ Kate Jordan


  

Philip Kapp


Signature of Witness

  

Name of Attorney in full

Kate Jordan


    

Name of Witness in full

    
Signed sealed and delivered for and on behalf of Frances Perry Hospital Pty Limited ACN 106 723 228 by its Attorney under a Power of Attorney dated 20 October 2003, and the Attorney declares that the Attorney has not received any notice of the revocation of such Power of Attorney, in the presence of:   

/s/ Philip Kapp


Signature of Attorney

/s/ Kate Jordan


  

Philip Kapp


Signature of Witness

  

Name of Attorney in full

Kate Jordan


    

Name of Witness in full

    


Signed sealed and delivered for and on behalf of Armidale Hospital Pty Limited ACN 106 723 200 by its Attorney under a Power of Attorney dated 20 October 2003, and the Attorney declares that the Attorney has not received any notice of the revocation of such Power of Attorney, in the presence of:   

/s/ Philip Kapp


    

Signature of Attorney

/s/ Kate Jordan


  

Philip Kapp


Signature of Witness

  

Name of Attorney in full

Kate Jordan


    

Name of Witness in full

    
Signed sealed and delivered for and on behalf of P.O.W. Hospital Pty Limited ACN 106 723 871 by its Attorney under a Power of Attorney dated 20 October 2003, and the Attorney declares that the Attorney has not received any notice of the revocation of such Power of Attorney, in the presence of:   

/s/ Philip Kapp


    

Signature of Attorney

/s/ Kate Jordan


  

Philip Kapp


Signature of Witness

  

Name of Attorney in full

Kate Jordan


    

Name of Witness in full

    


Schedule 1

Hospital Companies and Subsidiaries

 

Part 1

Hospital Companies

 

1. Australian Medical Enterprises Ltd
2. HCoA Hospital Holdings (Australia) Pty Ltd
3. Hospitals of Australia Ltd
4. Relkban Pty Ltd
5. Relkmet Pty Ltd
6. Votraint No. 664 Pty Ltd
7. Votraint No. 665 Pty Ltd

 

Part 2

Subsidiaries - HCoA Hospital Holdings (Australia) Pty Ltd

 

1. HCoA Operations (Australia) Pty Ltd
2. Hospital Corporation Australia Pty Ltd
3. Pruinosa Pty Ltd
4. Australian Hospital Care Limited
5. Australian Hospital Care (Latrobe) Pty Ltd
6. Australian Hospital Care (MPH) Pty Ltd
7. Rehabilitation Holdings Pty Ltd
8. Australian Hospital Care (Pindara) Pty Ltd
9. Australian Hospital Care 1988 Pty Ltd
10. Australian Hospital Care (The Avenue) Pty Ltd
11. Health Technologies Pty Ltd
12. Australian Hospital Care (Spare) Pty Ltd
13. Australian Hospital Care (Ringwood) Pty Ltd
14. Australian Hospital Care (Lady Davidson) Pty Ltd
15. Australian Hospital Care (MSH) Pty Ltd
16. Australian Hospital Care (Allamanda) Pty Ltd
17. The Victorian Rehabilitation Centre Pty Ltd
18. eHealth Technologies Limited
19. Australian Hospital Care Retirement Plan Pty Ltd
20. AHC Foundation Pty Ltd
21. Australian Hospital Care (Masada) Pty Ltd
22. Australian Hospital Care (Como) Pty Ltd
23. AHC Tilbox Pty Ltd
24. Australian Hospital Care (Knox) Pty Ltd
25. Australian Hospital Care (Northpark) Pty Ltd
26. Australian Hospital Care (Dorset) Pty Ltd
27. Australian Hospital Care Investments Pty Ltd
28. AHC Radiology Pty Ltd
29. Hospital Affiliates of Australia Pty Ltd
30. HCA Management Pty Ltd
31. Dabuvu Pty Ltd
32. HOAIF Pty Ltd
33. Tilemo Pty Ltd
34. C.R.P.H. Pty Ltd
35. Hospital Developments Pty Ltd
36. P.M.P.H. Pty Ltd
37. Malahini Pty Limited


Subsidiaries - Australian Medical Enterprises Limited

 

1. AME Hospitals Pty Ltd
2. Attadale Hospital Property Pty Ltd
3. AME Properties Pty Ltd
4. Jamison Private Hospital Property Pty Ltd
5. Glengarry Hospital Property Pty Ltd
6. Hallcraft Pty Ltd
7. Rannes Pty Ltd
8. Hadassah Pty Ltd
9. Victoria House Holdings Pty Ltd
10. AME Superannuation Pty Ltd

 

Part 3

Other subsidiaries - HCoA Hospital Holdings (Australia) Pty Ltd

 

1. Pindara Day Procedure Centre Pty Ltd

 

Other subsidiaries - Australian Medical Enterprises Limited

 

1. Mount Hospital Cath Labs Pty Ltd


Schedule 2

Sale Shares

 

    

Hospital Company


  

Registered and Beneficial Owner


   Number of
Sale Shares


   Class

   Percentage of
total issued
share capital


 

1.

   Australian Medical Enterprises Limited   

Mayne Group Limited

  

191,974,841

  

Ordinary

  

100

%

2.

   HCoA Hospital Holdings (Australia) Pty Ltd    Mayne Healthcare Holdings Pty Ltd   

182,089,998

  

Ordinary

  

*100

%

3.

       

Mayne Group Limited

  

*

  

Ordinary

  

*

 

4.

   Hospitals of Australia Limited   

Mayne Group Limited

  

44,923,720

  

Ordinary

  

100

%

5.

  

Relkban Pty Ltd

  

Mayne Group Limited

  

1

  

A Class

  

100

%

6.

       

Mayne Group Limited

  

2

  

B Class

  

100

%

7.

       

Mayne Group Limited

  

2

  

C Class

  

100

%

8.

  

Relkmet Pty Ltd

  

Mayne Group Limited

  

1

  

A Class

  

100

%

9.

       

Mayne Group Limited

  

2

  

B Class

  

100

%

10.

       

Mayne Group Limited

  

2

  

C Class

  

100

%

11.

  

Votraint No. 664 Pty Ltd

  

Mayne Group Limited

  

2

  

Ordinary

  

100

%

12.

  

Votraint No. 665 Pty Ltd

  

Mayne Group Limited

  

2

  

Ordinary

  

100

%


* Pursuant to an agreement dated 5 December 2000 between MGL and HCoA Hospital Holdings (Australia) Pty Ltd (“HCoA”), HCoA is obliged to issue new shares to MGL, the number to be determined pursuant to clause 2.2 of that agreement. These shares will be issued prior to Completion, at which time those shares together with the shares owned by MHH specified in row 2 of the table above will comprise 100% of the total issued share capital of HCoA and rows 2 and 3 of the table above will be deemed to be amended to reflect the share issue. The accounting entires which are necessary as a result of the issue of these shares have already been made in the accounts of HCoA and accordingly no further entries will be made. In particular there will be no further adjustment to the intercompany debt made as a result.


Schedule 3

Hospitals

 

1.

  

Castlecrag Private Hospital

  

150 Edinburgh Road

  

Castlecrag

  

NSW

2.

  

Christo Road Private Hospital

  

219 Christo Road

  

Waratah

  

NSW

3.

  

Gosford Private Hospital

  

Burrabil Avenue

  

North Gosford

  

NSW

4.

  

Kareena Private Hospital

  

86 Kareena Road

  

Caringbah

  

NSW

5.

  

Lady Davidson Private Hospital

  

Bobbin Head Road

  

North Turramurra

  

NSW

6.

  

Lingard Private Hospital

  

23 Merewether Street

  

Merewether

  

NSW

7.

  

Macarthur Private Hospital

  

92-96 Dumaresq Street

  

Campbelltown

  

NSW

8.

  

Nepean Private Hospital

  

1-9 Barber Avenue

  

Kingswood

  

NSW

9.

  

Nowra Private Hospital

  

Weerona Place

  

Nowra

  

NSW

10.

  

Orange Private Hospital

  

261 March Street

  

Orange

  

NSW

11.

  

Port Macquarie Private Hospital

  

Lake Road

  

Port Macquarie

  

NSW

12.

  

St George Private Hospital

  

1 South Street

  

Kogarah

  

NSW

13.

  

Strathfield Private Hospital

  

3 Everton Street

  

Strathfield

  

NSW

14.

  

The Hills Private Hospital

  

499 Windsor Road

  

Baulkham Hills

  

NSW

15.

  

Warners Bay Private Hospital

  

Fairfax Road

  

Warners Bay

  

NSW

16.

  

Belmont Private Hospital

  

1220 Creek Road

  

Carina

  

QLD

17.

  

Caloundra Private Hospital

  

96 Beerburrum Street

  

Caloundra

  

QLD

18.

   Hillcrest Rockhampton Private Hospital   

4 Talford Street

  

Rockhampton

  

QLD

19.

   John Flynn - Gold Coast Private Hospital   

Inland Drive

  

Tugun

  

QLD

20.

   Nambour Selangor Private Hospital   

62 Netherton Street

  

Nambour

  

QLD

21.

   North West Private Hospital - Brisbane   

137 Flockton Street

  

Everton Park

  

QLD

22.

  

Pindara Private Hospital

  

Allchurch Avenue

  

Benowa

  

QLD

23.

  

St Andrew’s Ipswich Private Hospital

  

Cnr Roderick & Pring Streets

  

Ipswich

  

QLD

24.

  

Sunnybank Private Hospital

  

245 McCullough Street

  

Sunnybank

  

QLD


25.

  

Como Private Hospital

  

152 Como Parade West

  

Parkdale

  

VIC

26.

  

Cotham Private Hospital

  

Cnr Cotham Road & Adeny Avenue

  

Kew

  

VIC

27.

   John Fawkner Moreland Private Hospital   

275 Moreland Road

  

Coburg

  

VIC

28.

  

Knox Private Hospital

  

262 Mountain Highway

  

Wantirna

  

VIC

29.

  

Linacre Private Hospital

  

12 Linacre Road

  

Hampton

  

VIC

30.

  

Masada Private Hospital

  

26 Balaclava Road

  

East St Kilda

  

VIC

31.

  

Mount Waverley Private Hospital

  

343-357 Blackburn Road

  

Mount Waverley

  

VIC

32.

  

Ringwood Private Hospital

  

36 Mt Dandenong Road

  

Ringwood

  

VIC

33.

  

Shepparton Private Hospital

  

20 Fitzgerald Street

  

Shepparton

  

VIC

34.

  

The Avenue Private Hospital

  

40 The Avenue

  

Windsor

  

VIC

35.

   Victorian Rehabilitation Centre - Eastern Melbourne   

499 Springvale Road

  

Glen Waverley

  

VIC

36.

   Victorian Rehabilitation Centre - Northern Melbourne   

146 Derby Street

  

Pascoe Vale

  

VIC

37.

  

Wangaratta Private Hospital

  

134 Templeton Street

  

Wangaratta

  

VIC

38.

  

Warringal Private Hospital

  

216 Burgundy Street

  

Heidelberg

  

VIC

39.

  

Attadale Private Hospital

  

21 Hislop Road

  

Attadale

  

WA

40.

  

Glengarry Private Hospital

  

53 Arnisdale Road

  

Duncraig

  

WA

41.

  

Mount Hospital

  

150 Mounts Bay Road

  

Perth

  

WA


Schedule 4

Seller’s Guarantees

 

Bank

Provider


  

Bank

Reference


  

Date

Established


  

Favouree


  

Purpose of Guarantee


   Term

Westpac

  

201354-0016

  

8/9/1993

   The Council of the Municipality of Kogarah    Security for DA relating to the provision of car parking of not less than 259 vehicles   

Indefinite

Westpac

  

201354-0017

  

19/4/1993

   The State Energy Commission of Western Australia    Security in relation to the provision of electricity to Mount Hospital   

Indefinite

Westpac

  

201354-0018

  

19/4/1993

   The State Energy Commission of Western Australia    Security in relation to the provision of electricity to Attadale Private Hospital   

Indefinite

Westpac

  

201354-0029

  

19/4/1993

   The State Energy Commission of Western Australia    Security in relation to the provision of electricity to Glengarry Private Hospital   

Indefinite

Westpac

  

201354-0020

  

19/4/1993

   The State Energy Commission of Western Australia    Security in relation to the provision of electricity to Attadale Private Hospital   

Indefinite

CBA

  

G000099069

  

10/4/2000

   Gold Coast City Council    Gold Coast City Council   

Indefinite

ANZ

  

13752

  

06/08/1997

   Geelong Hospital    Security for the due performance of the obligations under an agreement for lease   

Indefinite


Schedule 5

Hospital Business Contracts

 

The Hospital Business Contracts marked with an asterisk below are the “Key Contracts”.

 

Part A - Hospital Business Contracts - Seller Group - Contracts to be novated

 

*Software Maintenance Agreement dated 1994 between Mayne Group Limited and IBA Healthcare Limited (unsigned).

 

*Mayne Health Outsourcing Agreement dated 26 November 2001 between Mayne Group Limited and Honeywell Limited.

 

Part B - Hospital Business Contracts - Group

 

Part C - Shared Contracts

 

Business Services Agreement for Key Customers dated 30 June 2003 between Mayne Group Limited and Telstra Corporation Limited.

 

*IT Infrastructure Services Agreement dated 18 October 2002 between Mayne Group Limited and Hewlett-Packard Australia Pty Limited.

 

Telecommunications Supply Agreement (as varied) dated March 2001 between Mayne Group Limited, Optus Networks Pty Limited and Optus Mobile Pty Limited.

 

Support Services Agreement commencing 1 August 2000 between Dimension Data Australia Pty Limited and Mayne Group Limited.

 

Technical Support Agreement for MessageManager between System Solutions Pty Limited and Mayne Group Limited for various Mayne group “entities” including John Fawkner Hospital (Melbourne) (License No.613 103 929); Health Care of Australia - Sydney (License No. 613 103 879); Health Care of Australia - Brisbane (License No. 613 103 930).

 

Software Licence Agreement dated January 2003 between Trend Micro Australia Pty Limited and Mayne Group Limited.

 

Software Licence and Maintenance Agreement dated 1 October 2003 between Clearswift (AsiaPacific) Pty Limited and Mayne Group Limited.

 

Software Licence and Maintenance Agreement dated 1 October 2003 between Sophos plc and Mayne Group Limited.

 

Hardware Maintenance Agreement undated between Applied Data Control Pty Limited and FH Faulding & Co Limited.

 

*R/3 Software End-User License Agreement dated 5 July 1997 between Mayne Group Limited and SAP Australia Pty Limited (and associated appendices).

 

Express Distribution Agreement dated 1 November 2002 between Mayne Group Limited and Toll Transport Pty Limited.


Part D1

 

Fund


  

  Mayne Party  


  

Hospitals


     Date  

    Agreement 
on foot?


Medibank Private

   MGL in its own capacity and as agent for subsidiaries    All   

1/10/01

  

Y

AXA

   MGL in its own capacity and as agent for subsidiaries    All   

03/06/02

  

Y

HCF

   MGL    All   

27/09/2001

  

Y

ARHG (Qld)

   MGL    Qld Hospitals - includes C&P and non C&P   

1/03/2003

  

Y

ARHG (ACT and NSW)

   MGL    ACT & NSW hospitals -   includes C&P and non C&P   

1/03/2003

  

Y

ARHG (Vic)

   MGL    Vic hospitals - includes C&P and non C&P   

1/03/2003

  

Y

ARHG (WA)

   MGL    WA hospitals - includes C&P and non C&P   

1/03/2003

  

Y

NIB (Vic)

(to the extent still on foot)

   MGL    Vic hospitals - includes C&P and non C&P   

10/7/1995

  

?

 

Part D2

 

Fund


  

  Mayne Party  


  

Hospitals


     Date  

    Agreement 
on foot?


MBF    MGL in its own capacity and as agent for subsidiaries    All    13/9/02   

Y

AHSA

(to the extent still on foot)

   “Mayne Health Limited and related Corporations”    All    Date in
Sch 4
  

?

NIB (NSW)    MGL in its own capacity and as agent for subsidiaries    NSW hospitals - includes C&P and non C&P    15/6/2000   

Y

NIB - Deed of Variation    MGL in its own capacity and as agent for subsidiaries    All NIB hospitals - includes C&P and non C&P    1/1/2002   

Y

DVA (Country Qld)    MGL in its own capacity and as agent for subsidiaries    Country Qld hospitals -  includes C&P and non C&P    1/11/2000   

Y

DVA (NSW)    MGL in its own capacity and as agent for subsidiaries    NSW hospitals - includes C&P and non C&P    12/02/2001   

Y


Part D3

 

Fund


  

Mayne Party


  

Hospitals


   Date

   Agreement
on foot?


DVA (VIC)

  

MGL

   Vic Rehab Centre Northern and Vic Rehab Centre Eastern   

1/11/2002

  

Y

DVA (NSW)

   MGL in its own capacity and as agent for subsidiaries    Castlecrag, Christo Rd and Mosman   

13/02/2003

  

Y


Schedule 6

Business Names - Seller Group

 

NAME


   PROPRIETOR

   REG_VIC

   REG_NSW

   REG_QLD

   REG_SA

   REG_TAS

   REG_AC

   REG_ACT

   REG_NT

Health Care Of Australia   

Mayne 

Group 

Limited

   0996184W    M0989504    BN4236257    0320418A    0032236K    74504    F00059631    BN47431B
John Flynn Hospital Sports Medicine Clinic    Mayne
Group
Limited
             BN6945569                         
Oasis Occupational Health Services    Mayne
Group
Limited
   1327755F    U0582110    BN6491637    0415646R    0206836R    112357B          
Sunshine Coast Rehabilitation Services*    Mayne
Group
Limited
             BN18336115                         


Schedule 7

Intellectual Property

 

Part A - Intellectual Property Rights - Seller Group

 

Trade marks

 

Mark/Device


   Country

   Registration
No.


   Proprietor

   Status

   Class

HCOA logo

   Australia    563517    Mayne Nickless
Limited
   Registered    42

Hospitals of Australia logo

   Australia    501537    Mayne Nickless
Limited
   Registered    42

 

Domain names

 

Domain Name


 

Proprietor


hcoa.com.au

  Health Care of Australia Ltd

maynehospitals.com

  Mayne Nickless Limited

thehappyhospital.com

  Mayne Group

 

Part B - Intellectual Property Rights - Group

 

Mark/Device


   Country

  

Registration

No.


   Proprietor

   Status

   Class

AHC logo

   Australia    393588   

Australia Hospital Care

Pty Limited

   Registered    42

AHC logo

   Australia    441964   

Australia Hospital Care

Pty Limited

   Registered    35

AHC Australian Hospital Care

   Australia    711653   

Australia Hospital Care

Pty Limited

   Registered    35,42

 

Domain names

 

Domain Name


 

Proprietor


ahcl.com.au

  Australian Hospital Care Limited

aushospcare.com.au

  Australian Hospital Care Limited

avenuehospital.com.au

  Australian Hospital Care (The Avenue) Pty Ltd

castlecraghospital.com.au

  Ame Hospitals Pty Ltd

comohospital.com.au

  Australian Hospital Care Limited

dorsethospital

  Australian Hospital Care (Dorset) Pty Ltd

knoxhospital.com.au

  Australian Hospital Care (Knox) Pty Ltd

ladydavidson.com.au

  AUSTRALIAN HOSPITAL CARE (LADY DAVIDSON) PTY. LTD.

masada.com.au

  Australian Hospital Care (Masada) Pty Ltd

mounthospital.com.au

  Mount Hospital

pindarahospital.com.au

  Australian Hospital Care (Pindara) Pty Ltd

ringwoodhospital.com.au

  Australian Hospital Care (Ringwood) Pty Ltd


Part C - Trade Marks - Excluded

 

Mark/Device


   Country

   Registration
No.


   Proprietor

   Status

   Class

Mayne and Red Dot Logo

   Australia    857106    Mayne Nickless
Limited
   Registered    35,39,44


Schedule 8

Premises

 

Part A - Leasehold Premises - Seller Group

 

    

Address


  

Registered Proprietor


1.

   Level 5, 417 St. Kilda Road, Melbourne, Victoria (and licence for 40 car spaces)    Mayne Group Limited

2.

  

Shop A.D. 4.81, Robina Town Centre, Robina, OLD

(John Flynn - Gold Coast Private Hospital)

  

Mayne Group Limited

(Lease expired, new lease being negotiated with HCoA Operations (Australia) Pty Limited)

 

Part B - Leasehold Premises - Group

 

    

Address


  

Tenant


1.

  

Suite 1, Glengarry Medical Centre, 60 Arnisdale Road, Duncraig, WA

(Glengarry Private)

   Hadassah Pty Ltd

2.

  

Suite 2, Glengarry Medical Centre, 60 Arnisdale Road, Duncraig, WA

(Glengarry Private)

   Hadassah Pty Ltd

3.

  

Suite 14, 468 Kingsway, Caringbah, NSW

(Kareena Private)

   HCoA Operations (Australia) Pty Ltd

4.

  

Suite 11, Level 1, Cheltenham

Rooms 4-10 Jamieson Street, Cheltenham, Victoria

(Linacre Private)

   HCoA Operations (Australia) Pty Ltd

5.

  

Part 302 Como Parade West, Parkdale, Victoria

(Masada Private)

(Licence)

   Australian Hospital Care (Masada) Pty Ltd

6.

  

Car Parking, Old Swan Brewery Site

Mount Private Hospital, Perth, WA

   AME Properties Pty Limited

7.

  

Emergency Generator, Mount Waverley Private Hospital Blackburn Road, Mount Waverley, Victoria

(Licence)

   Relkban Pty Ltd (new licence to be granted to HCoA Operations (Australia) Pty Ltd)

8.

  

62 Netherton Road, Nambour, Queensland

(Nambour Selangor Private)

   Hospital Corporation Australia Pty Ltd

9.

  

Car Parking Spaces

Nepean Private Hospital

262-266 Great Western Highway, Kingswood,

NSW

(Licence)

   HCoA Operations (Australia) Pty Ltd


10.

   Bridge Link 1, Nepean Private Hospital, 1A Barber Avenue, Kingswood, NSW    HCoA Operations (Australia) Pty Ltd

11.

   Bridge Link 2, Nepean Private Hospital, 1A Barber Avenue, Kingswood, NSW    HCoA Operations (Australia) Pty Ltd

12.

   Car Park, Nepean Private Hospital, Barber Avenue, Kingswood, NSW (Licence)    HCoA Operations (Australia) Pty Ltd

13.

  

NorthWest Brisbane Private Hospital -

Medical Centre,

125 Flockton Street, Everton Park, Queensland

   HCoA Operations (Australia) Pty Ltd

14.

  

AHC House,

14-16 Carrarra Street, Benowa, Gold Coast, Queensland

(Pindara Private Hospital)

   Australian Hospital Care (Pindara) Pty Ltd

15.

  

Car Park Licence A,

AHC House, 14-16

Carrara Street, Benowa, Gold Coast,

Queensland

(Pindara Private Hospital)

(Licence)

   Australian Hospital Care (Pindara) Pty Ltd

16.

  

Car Park Licence B

AHC House 14-16 Carrarra Street, Benowa,

Gold Coast, Queensland

(Pindara Private Hospital)

(Licence)

   Australian Hospital Care (Pindara) Pty Ltd

17.

  

Suite 1, AHC House 14-16 Carrarra Street,

Benowa,

Gold Coast, Queensland

(Pindara Private Hospital)

   Australian Hospital Care (Pindara) Pty Ltd

18.

  

Suite 4, AHC House 14-16 Carrarra Street,

Benowa,

Gold Coast, Queensland

(Pindara Private Hospital)

   Australian Hospital Care (Pindara) Pty Ltd

19.

  

Suite 3, The Grange, Lake Road,

Port Macquarie, NSW

(Port Macquarie Private)

   HCoA Operations (Australia) Pty Ltd

20.

  

Suite 1 Strathfield Private Hospital - Medical

Centre

3 Everton Road, Strathfield, NSW

(Strathfield Private Hospital - Medical Centre)

   HCoA Operations (Australia) Pty Ltd

21.

  

Car Park, Sunnybank Hotel, 275 McCulloch Street, Sunnybank, Queensland

(Informal Licence)

   Hospital Corporation Australia Pty Limited


 

22.

  

Suite 2 Strathfield Private Hospital - Medical

Centre

3 Everton Road, Strathfield, NSW

   HCoA Operations (Australia) Pty Ltd

23.

  

Orthopaedic Centre,

31-33 The Avenue, Windsor, Victoria

(The Avenue Private Hospital)

   Australian Hospital Care (The Avenue) Pty Ltd

24.

  

Basement - 210 Burgundy Street, Heidelberg,

Victoria

(Warringal Private Hospital)

   HCoA Operations (Australia) Pty Ltd

25.

  

Suite 5, 210 Burgundy Street, Heidelberg,

Victoria

(Warringal Private Hospital)

   HCoA Operations (Australia) Pty Ltd

26.

  

Car Park, City of Heidelberg, Bowling Club

(Warringal Private Hospital)

(Informal Licence)

   HCoA Operations (Australia) Pty Ltd?

 

Part C - Freehold Premises - Seller Group

 

NIL

 

Part D - Freehold Premises - Group

 

    

Address


  

Registered Proprietor


1.    Attadale Private, 21 Hislop Rd, Attadale, WA    Attadale Hospital Property Pty Ltd
2.    Belmont Private, 1220 Creek Road, Carina, Queensland    Hospital Corporation Australia Pty Ltd
3.    Bayside (Linacre) Private, 12 Linacre Road, Hampton, Victoria    HCOA Operations (Australia) Pty Ltd
4.    Caloundra Private, 96 Beerburrum Street, Caloundra, Queensland    Hospital Corporation Australia Pty Ltd
5.    Castlecrag Private, 150 Edinburgh Road, Castlecrag, NSW    AME Properties Pty Ltd
6.    Christo Road Private, 219 Christo Road, Waratah, NSW    HCOA Operations (Australia) Pty Ltd
7.    Cotham Private, 209 Cotham Road, Kew, Victoria    HCOA Operations (Australia) Pty Ltd

9.

   Glengarry Private, 53 Arnisdale Road, Duncraig, WA    Hadassah Pty Ltd


10.

   Hillcrest - Rockhampton Private, 4 Talford Street, Rockhampton, Queensland    Hospital Corporation Australia Pty Ltd

11.

   John Fawkner -Moreland Private, 275 Moreland Road, Coburg, Victoria    HCOA Operations (Australia) Pty Ltd

12.

   John Flynn - Gold Coast Private, Boyd Street, Tugun Queensland    HCOA Operations (Australia) Pty Ltd

13.

   Kareena Private, 86 Kareena Road, Caringbah, NSW    HCOA Operations (Australia) Pty Ltd

14.

  

Knox Private, 262 Mountain Highway, Wantirna, Victoria

4,6 and 8 Ainsdale Avenue, Wantirna, Victoria

   Australia Hospital Care (Knox) Pty Ltd

15.

   Lady Davidson Private, Bobbin Head Road, North Turramurra, NSW    Australian Hospital Care (Lady Davidson) Pty Ltd

16.

   Lingard Private, 23 Merewether Street, Merewether, NSW    HCOA Operations (Australia) Pty Ltd

17.

   Macarthur Private, 90-96 Dumaresque Street, Campbelltown, NSW    Pruinosa Pty Ltd

18.

   Masada Private, 24-26 Balaclava Road, East St Kilda, Victoria    Australian Hospital Care (MPH) Pty Ltd

19.

   Mentone (Como) Private, 152-156 Como Parade West, Parkdale, Victoria    Australian Hospital Care (Como) Pty Ltd, (formerly known as Howanor Realty Proprietary Limited)

20.

   Mount Hospital Perth, 150 Mounts Bay Road, Perth, WA    AME Properties Pty Ltd

21.

   Mount Waverley Private, 343-357 Blackburn Road, Mount Waverley, Victoria    HCOA Operations (Australia) Pty Ltd

22.

   Nambour Selangor Private, 62A Netherton Road, Nambour, Queensland    Hospital Corporation Australia Pty Ltd

23.

   Nepean Private, (Hospital and Lots 2, 4, 7, 8, 11, 12, 13 & 15 of the Specialist Centre) 1A Barber Avenue, Kingswood, NSW    HCOA Operations (Australia) Pty Ltd

24.

   North Gosford Private Hospital, 9 Burrabil Avenue, Gosford, NSW    HCoA Operations (Australia) Pty Ltd

25.

   Nowra Private, Weerona Place, Nowra, NSW    HCoA Operations (Australia) Pty Ltd

26.

  

North West Brisbane Private

 

129 Flockton Street, Everton Park, Queensland

 

137 Flockton Street, Everton Park, Queensland, (“Building B”)

 

Specialist Centre, Suites 7 and 8,

137A Flockton Street, Everton Park,

Queensland

   HCoA Operations (Australia) Pty Ltd


27.

  

Orange Private Hospital, 261 March Street,

Orange, NSW

 

Car Park, 261 March Street, Orange, NSW

  

HCoA Operations (Australia) Pty Ltd

 

 

Hospital Corporation Australia Pty Limited

28

  

Pindara Private, Alchurch Avenue, Benowa,

Gold Coast, Queensland

 

Pindara Place,

13 Carrara Place, Benowa, Gold Coast, Queensland (Lots 1, 3, 4, 5, 6, 7, 8, 9, 14, 15 and 16)

   Australian Hospital Care (MSH) Pty Limited

29

   Port Macquarie Private, Lake Road, Port Macquarie, NSW    HCoA Operations (Australia) Pty Ltd

30

   Ringwood Private, 36-44 Mt Dandenong Road, Ringwood, Victoria    Australian Hospital Care (Ringwood)Pty Ltd

31

   Shepparton Private, 20 Fitzgerald Street, Shepparton, Victoria    HCoA Operations (Australia) Pty Ltd

32

   St Andrew’s Ipswich Private, Corner Roderick and Pring Streets, Ipswich, Queensland    Hospital Corporation Australia Pty Ltd

33

   St George Private, 1 South Street, Kogarah, NSW    AME Properties Pty Ltd

34

   Strathfield Private, (including Suite 6 Medical Centre) 3 Everton Road, Strathfield, NSW    HCoA Operations (Australia) Pty Ltd

35

   Sunnybank Private, 245 McCullough Street, Sunnybank, Queensland    Hospital Corporation Australia Pty Ltd

36

  

The Avenue Private, 36-40 The Avenue and 41-45 Lewisham Road, Windsor, Victoria

 

Unit 5 and Car Park, 32 The Avenue, Windsor, Victoria

 

42 The Avenue, Windsor, Victoria

   Australian Hospital Care (The Avenue) Pty Ltd

37

  

The Hills Private

 

Hospital, Suite 6, Level 1 and Suites 8, 11, 13, 14, 15, 16 and 17, Level 3, Medical Centre, 499 Windsor Road, Baulkham Hills, NSW

 

493 Windsor Road, Baulkham Hills, NSW

 

495 Windsor Road, Baulkham Hills, NSW

   HCoA Operations (Australia) Pty Ltd


38

   Victorian Rehabilitation Centre - Eastern Melbourne, 499 Springvale Road, Glen Waverley, Victoria    Rehabilitation Holdings Pty Ltd

39

   Victorian Rehabilitation Centre - Northern Melbourne, 146 Derby Street & 26-28 Dorset Road, Pascoe Vale, Victoria    Australian Hospital Care (Dorset) Pty Ltd

40

   Wangaratta Private, 134-150 Templeton Street, Wangaratta, Victoria    HCoA Operations (Australia) Pty Ltd

41

   Warners Bay Private, Fairfax Road, Warners Bay, Newcastle, NSW    HCoA Operations (Australia) Pty Ltd

42

   Warringal Private, 216 Burgundy Street, Heidelberg, Victoria    HCoA Operations (Australia) Pty Ltd


Schedule 9

Leases

 

Part A - Deed of Novation of Lease

 

Deed made                    at                    on

 

Parties

   [Landlord] Pty Ltd ACN [specify] of [specify] (“Landlord”)
     [Mayne Entity] Pty Ltd ACN [specify] of Level 21, 380 St. Kilda Road, Melbourne, Victoria (“Tenant”)
     [Purchaser] Pty Ltd ACN [specify] of [specify] (“Purchaser”)
     [Purchaser’s Guarantor - if required by the Landlord (“Guarantor”)]

 

Recitals

 

A. The Landlord is the registered proprietor of the Premises and is entitled to the benefit of the rent reserved by the Lease and the benefit of the lessee’s covenants under the Lease in respect of the Premises.

 

B. The Tenant desires to novate the Lease to the Purchaser as from the Effective Date.

 

C. The Landlord has agreed to the novate of the Lease from the Tenant to the Purchaser upon all parties entering into and executing this Deed.

 

[D. The Guarantor has agreed to guarantee the performance and observance of the Lease by the Purchaser.]

 

This deed provides

 

1. Definitions and interpretation

 

1.1 Definitions

 

In this Deed:

 

“Effective Date” means the date specified in Item 4 of the Schedule.

 

“Lease” means the lease described in Item 2 of the Schedule as varied or supplemented by the described in Item 3 of the Schedule and includes any option or options for the renewal or extension of the Lease which was or were capable of being exercised but had not been exercised prior to the Date of Assignment.

 

“Landlord” means and includes the Landlord and the executors, administrators and assigns of the Landlord and in the case of a corporation the successors and assigns of the corporation and the person registered or entitled to be registered from time to time as the proprietor of an estate in fee simple in the land on which the Premises are situated.

 

“Premises” means the premises described in Item 1 of the Schedule.

 

“Purchaser” means and includes the Purchaser and the executors and administrators and permitted assigns of the Purchaser and in the case of a corporation the successors and permitted assigns of the Purchaser.

 

“Schedule” means the Schedule to this Deed.


“Tenant” means and includes the Tenant and the executors and administrators of the Tenant and in the case of a corporation the successors of the Tenant.

 

1.2 Interpretation

 

  (a) The word “person” shall include a corporation, words importing the singular number or plural number shall include the plural number and singular number respectively and words importing the masculine or neuter gender shall include every gender, references to statutes shall include all statutes amending consolidating or replacing the statutes referred to.

 

  (b) The clause numbers and clause headings have been incorporated for guidance only and shall not affect the interpretation of this Deed.

 

  (c) This Deed is governed by and shall be construed according to the laws of the State in which the Premises are situated.

 

  (d) Where the Assignee comprises two or more persons the covenants, obligations and agreements on the part of the Assignee herein contained shall refer to and bind the Assignee and any two or greater number of the Assignee jointly and each of them severally.

 

  (e) Where the Assignor comprises two or more persons the covenants, obligations and agreements on the part of the Assignor herein contained shall refer to and bind the Assignor and any two or greater number of the Assignor jointly and each of them severally.

 

2. Novation

 

The parties agree that, with effect on and from the Effective Date, the Purchaser shall be substituted as the lessee under the Lease as if the Purchaser had originally been named as the tenant under the lease instead of the lessee, and all references in the Lease to the lessee shall be read and construed as if they were references to the Purchaser and not the Tenant.

 

3. Purchaser’s covenants in favour of Landlord

 

The Purchaser covenants and agrees with the Landlord that the Purchaser will as and from the Effective Date and at all times during the balance of the term of the Lease and during any extension or renewal of the term:

 

  (a) pay the rent reserved by the Lease on the days and in the manner provided in the Lease; and

 

  (b) perform and observe the covenants, conditions and stipulations on the part of the lessee contained in the Lease to the intent that the covenants, conditions and stipulations and the powers granted to or implied in favour of the Landlord shall be binding upon the Purchaser as fully and effectually and in the same manner and to the same extent as if the Purchaser was a party to the Lease and expressly named therein as lessee.

 

4. Landlord’s consent to novation

 

4.1 Consent

 

The Landlord hereby consents to the novate by the Tenant to the Purchaser of the Lease as set out in this Deed.


4.2 Assignment to Financiers

 

Subject to satisfaction of any provisions contained in the Lease regarding assignment of the Lease, the Purchaser may assign or charge the benefit of any of its rights under the Lease to:

 

  (a) its financier or financiers (including any financier of a related entity of the Purchaser) from time to time (for itself and as trustee for other financiers); or

 

  (b) any person or persons as trustee or agent for its financiers in respect of facilities made available to the Purchaser,

 

and the Purchaser or such financier or such trustee or agent may also in the event of enforcement of such security, subject to satisfaction of any provisions in the Lease regarding assignment of the Lease, assign the benefit of the rights under the Lease to any purchaser or assignee from the financier or such trustee or agent (or any receiver appointed by any of them).

 

5. GST

 

5.1 GST Definitions

 

“GST” means GST within the meaning of the GST Act.

 

“GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (as amended).

 

Expressions used in this clause 5 and in the GST Act have the same meanings as when used in the GST Act.

 

5.2 GST exclusive amount

 

Except where this Deed states otherwise, each amount payable by a party under this Deed in respect of a taxable supply by the other party is expressed as a GST exclusive amount and the recipient of the supply must, in addition to that amount and at the same time, pay to the supplier the GST payable in respect of the supply.

 

5.3 Tax Invoice

 

A party is not obliged, under clause 5.2, to pay the GST on a taxable supply to it under this Deed, until given a valid tax invoice for the supply.

 

6. Governing law

 

This Deed is governed by the laws of the State or Territory in which the Premises are situated.

 

7. [Guarantee (if requested by Landlord)]

 

In consideration of the Tenant granting and the Landlord consenting to this assignment at the Guarantor’s request, the Guarantor hereby covenants and agrees with the Landlord that:

 

  (a) the Purchaser will duly and punctually pay to the Landlord the rent reserved under the Lease and will duly perform and observe all the covenants, agreements and conditions contained in the Lease and on its part to be performed and observed on and from the Effective Date;

 

  (b) if at any time default is made in the punctual payment of the rent reserved or any other money for the time being payable under the Lease, the Guarantor will, on demand, pay to the Landlord the whole of such rent and other money;


  (c) if at any time default is made in the due and punctual observance and performance of any of the covenants, terms and conditions contained in the Lease, the Guarantor will, on demand, pay and make good and indemnify and keep indemnified the Landlord against its losses, damages, claims, costs, charges and expenses sustained or incurred by the Landlord by reason or in consequence of any such default by the Purchaser;

 

  (d) this guarantee is a continuing guarantee and shall be irrevocable and shall remain in full force and effect until the expiry of the term of the Lease and any renewal, extension or holding over thereof and shall not be abrogated, prejudiced or effected by:

 

  (i) the granting of time, credit or other indulgence or concession to the Purchaser or to the Guarantor by the Landlord;

 

  (ii) the compounding or compromise, release, abandonment, waiver, variation, relinquishment or renewal of any rights of the Landlord against the Purchaser or the Guarantor;

 

  (iii) the liquidation of the Purchaser or the Guarantor;

 

  (iv) any other security or guarantee now or hereafter held by the Landlord;

 

  (v) any assignment of the Lease or any variation in the provisions of the Lease; or

 

  (vi) any neglect or omission or any other dealing, matter or thing which but for this provision could or might abrogate, prejudice or affect this guarantee.]


Executed as a deed.

   

Executed by [Landlord] ACN [specify] by or

in the presence of:

   

 


 

 


Signature of Director

 

Signature of Secretary/other Director

 


 

 


Name of Director in full

 

Name of Secretary/other Director in full

Executed by [Mayne Entity] Pty Ltd ACN [Specify] by or in the presence of:    

 


 

 


Signature of Director

 

Signature of Secretary/other Director

 


 

 


Name of Director in full

 

Name of Secretary/other Director in full


Executed by [Purchaser] Pty Ltd ACN

[specify] by or in the presence of:

   

 


 

 


Signature of Director

 

Signature of Secretary/other Director

 


 

 


Name of Director in full

 

Name of Secretary/other Director in full

[Executed by Purchaser’s Guarantor by or in the presence of:    

 


 

 


Signature of Director

 

Signature of Secretary/other Director

 


 

 


Name of Director in full

 

Name of Secretary/other Director in full]


Schedule    

1.      Premises:

   

2.      Particulars of Lease:

  Date:
    Lessor:
    Lessee:

3.      Particulars of Deed/s of Assignment and Deed/s of Variation:

   

4.      Effective Date:

  [To be completed - date of Completion of Business Sale]


Part B - Deed of Assignment of Lease

 

Deed made at

                       on

Parties

   [Landlord] Pty Ltd ACN [specify] of [specify] (“Landlord”)
     [Mayne Entity] Pty Ltd ACN [specify] of Level 21, 380 St. Kilda Road, Melbourne, Victoria (“Assignor”)
     [Purchaser] Pty Ltd ACN [specify] of [specify] (“Assignee”)
     [Purchaser’s Guarantor - if required by the Landlord (“Guarantor”)]

 

Recitals

 

A. The Landlord is the registered proprietor of the Premises and is entitled to the benefit of the rent reserved by the Lease and the benefit of the lessee’s covenants under the Lease in respect of the Premises.

 

B. The Assignor desires to transfer the Lease to the Assignee as from the Date of Assignment.

 

C. The Landlord has agreed to the transfer of the Lease from the Assignor to the Assignee upon all parties entering into and executing this Deed.

 

[D. The Guarantor has agreed to guarantee the performance and observance of this Deed by the Assignee.]

 

This deed provides

 

8. Definitions and interpretation

 

8.1 Definitions

 

In this Deed:

 

“Assignee” means and includes the Assignee and the executors and administrators and permitted assigns of the Assignee and in the case of a corporation the successors and permitted assigns of the Assignee.

 

“Assignor” means and includes the Assignor and the executors and administrators of the Assignor and in the case of a corporation the successors of the Assignor.

 

“Date of Assignment” means the date specified in Item 4 of the Schedule.

 

“Lease” means the lease described in Item 2 of the Schedule as varied or supplemented by the described in Item 3 of the Schedule and includes any option or options for the renewal or extension of the Lease which was or were capable of being exercised but had not been exercised prior to the Date of Assignment.

 

“Landlord” means and includes the Landlord and the executors, administrators and assigns of the Landlord and in the case of a corporation the successors and assigns of the corporation and the person registered or entitled to be registered from time to time as the proprietor of an estate in fee simple in the land on which the Premises are situated.

 

“Premises” means the premises described in Item 1 of the Schedule.


“Schedule” means the Schedule to this Deed.

 

8.2 Interpretation

 

  (a) The word “person” shall include a corporation, words importing the singular number or plural number shall include the plural number and singular number respectively and words importing the masculine or neuter gender shall include every gender, references to statutes shall include all statutes amending consolidating or replacing the statutes referred to.

 

  (b) The clause numbers and clause headings have been incorporated for guidance only and shall not affect the interpretation of this Deed.

 

  (c) This Deed is governed by and shall be construed according to the laws of the State in which the Premises are situated.

 

  (d) Where the Assignee comprises two or more persons the covenants, obligations and agreements on the part of the Assignee herein contained shall refer to and bind the Assignee and any two or greater number of the Assignee jointly and each of them severally.

 

  (e) Where the Assignor comprises two or more persons the covenants, obligations and agreements on the part of the Assignor herein contained shall refer to and bind the Assignor and any two or greater number of the Assignor jointly and each of them severally.

 

9. Assignment

 

The Assignor as beneficial owner hereby assigns and transfers to the Assignee as from and including the Date of Assignment the estate right, title and interest of the Assignor in and to the Premises to hold the Premises for the residue of the term of the Lease now unexpired and any extension or renewal thereof subject to the Assignee paying the rent and performing and observing the covenants, conditions and stipulations express or implied in the Lease and henceforth on the Assignee’s part to be paid, performed and observed.

 

10. Assignee’s covenants in favour of assignor

 

The Assignee covenants and agrees with the Assignor that the Assignee will at all times as and from the Date of Assignment during the balance of the term of the Lease:

 

  (a) pay the rent reserved by the Lease on the days and in the manner provided in the Lease; and

 

  (b) perform and observe the covenants on the part of the lessee express or implied in the Lease,

 

whether arising before or after the Date of this Assignment.

 

11. Assignee’s covenants in favour of Landlord

 

The Assignee covenants and agrees with the Landlord that the Assignee will as and from the Date of Assignment and at all times during the balance of the term of the Lease and during any extension or renewal of the term:

 

  (a) pay the rent reserved by the Lease on the days and in the manner provided in the Lease; and


  (b) perform and observe the covenants, conditions and stipulations on the part of the lessee contained in the Lease to the intent that the covenants, conditions and stipulations and the powers granted to or implied in favour of the Landlord shall be binding upon the Assignee as fully and effectually and in the same manner and to the same extent as if the Assignee was a party to the Lease and expressly named therein as lessee.

 

12. Landlord’s consent to assignment

 

12.1 Consent

 

The Landlord hereby consents to the assignment by the Assignor to the Assignee of the Lease as set out in this Deed provided that this consent is restricted to the particular assignment hereby authorised and, save as aforesaid, the covenant in the Lease against subletting, assignment or transfer of the Lease or parting with the possession of the Premises or any part thereof shall remain in full force and effect.

 

[If the Landlord will not agree to the release in clause 6:

 

12.2 Notice

 

The Landlord will give written notice to the Assignor of any breach by the Assignee of the Lease, within a reasonable time of such breach being committed and will allow the Assignor at least the same period of time as the lessee is entitled to under the Lease to remedy the breach]

 

13. Assignor released

 

The Assignor is hereby released and discharged from all obligations under the lease arising after the Date of Assignment as though the Lease were a direct lease between the Landlord and the Assignee.

 

[or if the landlord will not agree:

 

Nothing herein contained or implied shall be deemed to release, discharge or limit the liability of the Assignor to the Landlord for payment of the Rent reserved by the Lease or otherwise for the performance and observance of the Lessee’s covenants contained in the Lease for the term PROVIDED THAT the Landlord agrees that should the Assignee overhold or exercise the option for the further term under the Lease, the Assignor shall be released and discharged from all obligations under the Lease for the further term as though the Lease for the further term was a direct lease between the Landlord and the Assignee.]

 

14. Costs and stamp duties

 

The Assignee shall pay the stamp duty on this Deed and registration fees on any transfer of lease required as a consequence of the assignment effected by this Deed. The Assignee shall pay the Landlord’s reasonable legal costs and expenses of and incidental to this Deed.

 

15. GST

 

15.1 GST Definitions

 

“GST” means GST within the meaning of the GST Act.

 

“GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (as amended).


Expressions used in this clause 8 and in the GST Act have the same meanings as when used in the GST Act.

 

15.2 GST exclusive amount

 

Except where this Deed states otherwise, each amount payable by a party under this Deed in respect of a taxable supply by the other party is expressed as a GST exclusive amount and the recipient of the supply must, in addition to that amount and at the same time, pay to the supplier the GST payable in respect of the supply.

 

15.3 Tax Invoice

 

A party is not obliged, under clause 8.2, to pay the GST on a taxable supply to it under this Deed, until given a valid tax invoice for the supply.

 

16. Governing law

 

This Deed is governed by the laws of the State or Territory in which the Premises are situated.

 

17. [Guarantee (if requested by Landlord)]

 

In consideration of the Assignor granting and the Landlord consenting to this assignment at the Guarantor’s request, the Guarantor hereby covenants and agrees with the Landlord that:

 

  (a) the Assignee will duly and punctually pay to the Landlord the rent reserved under the Lease and will duly perform and observe all the covenants, agreements and conditions contained in the Lease and on its part to be performed and observed on and from the Date of Assignment;

 

  (b) if at any time default is made in the punctual payment of the rent reserved or any other money for the time being payable under the Lease, the Guarantor will, on demand, pay to the Landlord the whole of such rent and other money;

 

  (c) if at any time default is made in the due and punctual observance and performance of any of the covenants, terms and conditions contained in the Lease, the Guarantor will, on demand, pay and make good and indemnify and keep indemnified the Landlord against its losses, damages, claims, costs, charges and expenses sustained or incurred by the Landlord by reason or in consequence of any such default by the Assignee;

 

  (d) this guarantee is a continuing guarantee and shall be irrevocable and shall remain in full force and effect until the expiry of the term of the Lease and any renewal, extension or holding over thereof and shall not be abrogated, prejudiced or effected by:

 

  (i) the granting of time, credit or other indulgence or concession to the Assignee or to the Guarantor by the Landlord;

 

  (ii) the compounding or compromise, release, abandonment, waiver, variation, relinquishment or renewal of any rights of the Landlord against the Assignee or the Guarantor;

 

  (iii) the liquidation of the Assignee or the Guarantor;

 

  (iv) any other security or guarantee now or hereafter held by the Landlord;


  (v) any assignment of the Lease or any variation in the provisions of the Lease; or

 

  (vi) any neglect or omission or any other dealing, matter or thing which but for this provision could or might abrogate, prejudice or affect this guarantee.]


Executed as a deed.

   

Executed by [Landlord] ACN [specify] by or

in the presence of:

   

 


 

 


Signature of Director

 

Signature of Secretary/other Director

 


 

 


Name of Director in full

 

Name of Secretary/other Director in full

Executed by [Mayne Entity] Pty Ltd ACN

[Specify] by or in the presence of:

   

 


 

 


Signature of Director

 

Signature of Secretary/other Director

 


 

 


Name of Director in full

 

Name of Secretary/other Director in full

Executed by [Purchaser] Pty Ltd ACN

[specify] by or in the presence of:

   

 


 

 



 


 

 


Signature of Director

 

Signature of Secretary/other Director

 


 

 


Name of Director in full

 

Name of Secretary/other Director in full

[Executed by Purchaser’s Guarantor by or in the presence of:    

 


 

 


Signature of Director

 

Signature of Secretary/other Director

 


 

 


Name of Director in full

 

Name of Secretary/other Director in full]


Schedule

 

1.

   Premises:     

2.

   Particulars of Lease:    Date:
          Lessor:
          Lessee:

3.

   Particulars of Deed/s of Assignment and Deed/s of Variation:     

4.

   Date of Assignment:    [To be completed - date of Completion of Business Sale]

 


Schedule 10 -Not Used


Schedule 11 - Not used


Schedule 12 - Not used


Schedule 13

Equipment Leases - Seller Group

 

Equipment Leases - Seller Group

 

Equipment Leases through Westpac Equipment Finance Pty Ltd

 

Hospital


  Company

  Cost
Centre


  GL Code

  Contract

  Asset

 

Description


  Asset ID

  Cost

  Residual

  Start Date

Belmont Private Hospital

  106   203024   63520   11807   1   Toyota Hi-ace Commuter Bus   196EBR   $ 27,594.35   $ 9,067.00   13-Sep-01

Belmont Private Hospital Total

                              $ 27,594.35   $ 9,067.00    

St Andrews Private Hospital

  106   203222   63520   12021   1   Alcatel 4400 PABX Telephone System   To be Advised   $ 97,291.49   $ 25,740.00   13-Sep-01

St Andrews Private Hospital

                                           

Total

                              $ 97,291.49   $ 25,740.00    

John Fawkner Private Hospital

  1d08   205011   63520   11940   7   3 Viridia M3 Monitors   TBA   $ 17,064.28   $ 4,402.20   13-Sep-01

John Fawkner Private Hospital

  108   205029   63520   12124   1   Datex Ohmeda ADU 98 with AS/3 Monitors   To be Advised   $ 235,738.17   $ 69,195.90   13-Sep-01

John Fawkner Private Hospital

                                           

Total

                              $ 252,802.45   $ 73,598.10    

Lingard Private Hospital

  108   205235   63520   11805   1   Stotz Millenium Phacoemulsification Unit   5438   $ 46,248.45   $ 16,212.00   13-Sep-01

Lingard Private Hospital

  108   205235   63520   11813   1   Pre-vacuum Steriliser   5446   $ 44,134.75   $ 15,529.00   13-Sep-01

Lingard Private Hospital Total

                              $ 90,383.20   $ 31,741.00    

The Hills Private Hospital

  108   205628   63520   11817   1   Jackson Spinal Table   5450   $ 67,348.41   $ 22,379.00   13-Sep-01

The Hills Private Hospital

  108   205628   63520   12122   1   Ortovision Orthopaedic Operating Table   To be Advised   $ 67,571.55   $ 21,000.00   13-Sep-01

The Hills Private Hospital

  108   205628   63520   12141   1   Light Monitors       $ 16,l53.83   $ 5,099.84   13-Sep-01

The Hills Private Hospital

  108   205628   63520   12141   2   Light Monitors       $ 16,153.85   $ 5,099.86   13-Sep-01

The Hills Private Hospital

  108   205628   63520   12141   3   Light Monitors       $ 16,153.85   $ 5,099.86   13-Sep-01

The Hills Private Hospital

  108   205628   63520   12141   4   Light Monitors       $ 16,153.85   $ 5,099.86   13-Sep-01

The Hills Private Hospital

  108   205628   63520   12141   5   Light Monitors       $ 16,153.85   $ 5,099.86   13-Sep-0l

The Hills Private Hospital

  108   205628   63520   12141   6   Light Monitors       $ 16,153.85   $ 5,099.86   13-Sep-01

The Hills Private Hospital

  108   205628   63520   12141   7   Light Monitors       $ 16,153.85   $ 5,099.86   13-Sep-01

The Hills Private Hospital

  108   205628   63520   12142   1   Upgrade anaesthesia monitors       $ 5,200.78   $ l,641.84   13-Sep-01

The Hills Private Hospital

  108   205628   63520   12142   2   Upgrade anaesthesia monitors       $ 5,200.79   $ 1,641.86   13-Sep-01

The Hills Private Hospital

  108   205628   63520   12142   3   Upgrade anaesthesia monitors       $ 5,200.79   $ 1,641.86   13-Sep-01

The Hills Private Hospital

  108   205628   63520   12142   4   Upgrade anaesthesia monitors       $ 5,200.79   $ 1,641.86   13-Sep-01

The Hills Private Hospital

  108   205628   63520   12142   5   Upgrade anaesthesia monitors       $ 5,200.79   $ 1,641.86   13-Sep-01

The Hills Private Hospital

  108   205628   63520   12142   6   Upgrade anaesthesia monitors       $ 5.200.79   $ 1,641.86   13-Sep-01

The Hills Private Hospital

  108   205628   63520   12142   7   Upgrade anaesthesia monitors       $ 5,200.79   $ 1,641.86   13-Sep-01

The Hills Private Hospital

  108   205628   63520   12143   1   Anaesthesia Monitors       $ 76,032.73   $ 24,004.00   13-Sep-01

The Hills Private Hospital

  108   205628   63520   12143   2   Anaesthesia Monitors       $ 76,032.73   $ 24,004.00   13-Sep-01

The Hills Private Hospital

                                           

Total

                              $ 436,467.87   $ 138,579.00    

Kareena Private Hospital

  108   206025   63520   11677   1   Steris System and Mobile Trolleys   To be Advised   $ 157,775.28   $ 70,550.00   13-Sep-01

Kareena Private Hospital Total

                              $ 157,775.28   $ 70,550.00    

Strathfield Private Hospital

  108   206222   63520   12145   1   Phillips BV 300 9 inch   To be Advised   $ 141,215.81   $ 76,500.00   13-Sep-01

Strathfield Private Hospital

  108   206222   63520   12146   1   Sonos 5500 including TOE probe   To be Advised   $ 164,592.34   $ 89,164.00   13-Sep-01

Strathfield Private Hospital

  108   206222   63520   12147   1   Triple 777 Operating Table   To be Advised   $ 46,148.99   $ 25,000.00   13-Sep-01

Strathfield Private Hospital

  108   206222   63520   12148   1   Phillips Cardiac Catheter Lab   To be Advised   $ 1,002,950.12   $ 331,907.00   13-Sep-01

Strathfield Private Hospital

                                           

Total

                              $ 1,354,907.26   $ 522,571.00    

Christo Road Private Hospital

  108   206626   63520   11830   1   Ulco Medical Anaesthetic Machines X 3   5466/1   $ 14,549.60   $ 4,711.00   13-Sep-01

Christo Road Private Hospital

  108   206626   63520   11830   2   Ulco Medical   5466/2   $ 14,549.60   $ 4,711.00   13-Sep-01

 

Hospital


  End Date

  Term

  Amortised
Balance


  Net Rent

  Stamp Duty

  GST

  Gross Rent

  GST

  NET

Belmont Private Hospital

  13-Feb-06   54   $ 20,381.14   $ 462.29   $ 1.99   $ 46.43   $ 510.71   $ 46.43   $ 464.28

Belmont Private Hospital Total

          $ 20,381.14   $ 462.29   $ 1.99   $ 46.43   $ 510.71   $ 46.43   $ 464.28

St Andrews Private Hospital

  13-Nov-04   39   $ 56,445.93   $ 2,291.61   $ 9.85   $ 230.15   $ 2,531.61   $ 230.15   $ 2,301.46

St Andrews Private Hospital

                                                 

Total

          $ 56,445.93   $ 2,291.61   $ 9.85   $ 230.15   $ 2,531.61   $ 230.15   $ 2,301.46

John Fawkner Private Hospital

  13-Aug-04   36   $ 9,131.09   $ 434.94   $ 3.26   $ 43.82   $ 482.02   $ 43.82   $ 438.20

John Fawkner Private Hospital

  13-Mar-10   103   $ 206,844.65   $ 2,540.90   $ 19.06   $ 256.00   $ 2,815.96   $ 256.00   $ 2,559.96

John Fawkner Private Hospital

                                                 

Total

          $ 215,975.74   $ 2,975.84   $ 22.32   $ 299.82   $ 3,297.98   $ 299.82   $ 2,998.16

Lingard Private Hospital

  13-Feb-04   30   $ 22,979.08   $ 1,255.43   $ 9.42   $ 126.49   $ 1,391.34   $ 126.49   $ 1,264.85

Lingard Private Hospital

  13-Feb-04   30   $ 21,973.40   $ 1,196.15   $ 8.97   $ 120.51   $ 1,325.63   $ 120.51   $ 1,205.12

Lingard Private Hospital Total

          $ 44,952.48   $ 2,451.58   $ 18.39   $ 247.00   $ 2,716.97   $ 247.00   $ 2,469.97

The Hills Private Hospital

  13-Aug-06   60   $ 51,920.48   $ 1,034.57   $ 7.76   $ 104.23   $ 1,146.56   $ 104.23   $ 1,042.33

The Hills Private Hospital

  13-Mar-07   67   $ 53,604.67   $ 972.80   $ 7.30   $ 98.01   $ 1,078.11   $ 98.01   $ 980.10

The Hills Private Hospital

  13-May-07   69   $ 12,956.21   $ 226.49   $ 1.70   $ 22.82   $ 251.01   $ 22.82   $ 228.19

The Hills Private Hospital

  13-May-07   69   $ 12,956.23   $ 226.49   $ 1.70   $ 22.82   $ 251,01   $ 22.82   $ 228.19

The Hills Private Hospital

  13-May-07   69   $ 12,956.23   $ 226.49   $ 1.70   $ 22.82   $ 251,01   $ 22.82   $ 228.19

The Hills Private Hospital

  13-May-07   69   $ 12,956.23   $ 226.49   $ 1.70   $ 22.82   $ 251.01   $ 22.82   $ 228.19

The Hills Private Hospital

  13-May-07   69   $ 12,956.23   $ 226.49   $ 1.70   $ 22.82   $ 251.01   $ 22.82   $ 228.19

The Hills Private Hospital

  13-May-07   69   $ 12,956.23   $ 226.49   $ 1.70   $ 22.82   $ 251.01   $ 22.82   $ 228.19

The Hills Private Hospital

  13-May-07   69   $ 12,956.23   $ 226.49   $ 1.70   $ 22.82   $ 251.01   $ 22.82   $ 228.19

The Hills Private Hospital

  13-May-07   69   $ 4,171.27   $ 72.92   $ 0.55   $ 7.35   $ 80.82   $ 7.35   $ 73.47

The Hills Private Hospital

  13-May-07   69   $ 4,171.28   $ 72.92   $ 0.55   $ 7.35   $ 80.82   $ 7.35   $ 73.47

The Hills Private Hospital

  13-May-07   69   $ 4,171.28   $ 72.92   $ 0.55   $ 7.35   $ 80.82   $ 7.35   $ 73.47

The Hills Private Hospital

  13-May-07   69   $ 4,171.28   $ 72.92   $ 0.55   $ 7.35   $ 80.82   $ 7.35   $ 73.47

The Hills Private Hospital

  13-May-07   69   $ 4,171.28   $ 72.92   $ 0.55   $ 7.35   $ 80.82   $ 7.35   $ 73.47

The Hills Private Hospital

  13-May-07   69   $ 4,171.28   $ 72.92   $ 0.55   $ 7.35   $ 80.82   $ 7.35   $ 73.47

The Hills Private Hospital

  13-May-07   69   $ 4,171.28   $ 72.92   $ 0.55   $ 7.35   $ 80.82   $ 7.35   $ 73.47

The Hills Private Hospital

  13-May-07   69   $ 60,982.26   $ 1,066.04   $ 8.00   $ 107.40   $ 1,181.44   $ 107.40   $ 1,074.04

The Hills Private Hospital

  13-May-07   69   $ 60,982.26   $ 1,066.04   $ 8.00   $ 107.40   $ 1,181.44   $ 107.40   $ 1,074.04

The Hills Private Hospital

                                                 

Total

          $ 347,382.21   $ 6,235.32   $ 46.81   $ 628.23   $ 6,910.36   $ 628.23   $ 6,282.13

Kareena Private Hospital

  13-Sep-04   37   $ 104,708.43   $ 3,153.97   $ 23.65   $ 317.76   $ 3,495.38   $ 317.76   $ 3,177,62

Kareena Private Hospital Total

          $ 104,708.43   $ 3,153.97   $ 23.65   $ 317.76   $ 3,495.38   $ 317.76   $ 3,177.62

Strathfield Private Hospital

  13-May-05   45   $ 109,830.35   $ 2,130.92   $ 15.98   $ 214.69   $ 2,361.59   $ 214.69   $ 2,146.90

Strathfield Private Hospital

  13-May-05   45   $ 128,011.54   $ 2,483.66   $ 18.63   $ 250.23   $ 2,752.52   $ 250.23   $ 2,502.29

Strathfield Private Hospital

  13-May-05   45   $ 35,892.28   $ 696.38   $ 5.22   $ 70.16   $ 771.76   $ 70.16   $ 701.60

Strathfield Private Hospital

  13-May-05   45   $ 678,707.92   $ 19,468.53   $ 146.01   $ 1,961.45   $ 21,575.99   $ 1,961.45   $ 19,614.54

Strathfield Private Hospital

                                                 

Total

          $ 952,442.09   $ 24,779.49   $ 185.84   $ 2,496.53   $ 27,461.86   $ 2,496.53   $ 24,965.33

Christo Road Private Hospital

  13-May-04   33   $ 7,726.01   $ 373.51   $ 2.80   $ 37.63   $ 413.94   $ 37.63   $ 376.31

Christo Road Private Hospital

  13-May-04   33   $ 7,726.01   $ 373.51   $ 2.80   $ 37.63   $ 413.94   $ 37.63   $ 376.31

 


Hospital


  Company

  Cost
Centre


  GL Code

  Contract

  Asset

 

Description


  Asset ID

  Cost

  Residual

  Start Date

Christo Road Private Hospital

  108   206626   63520   11830   3   Anaesthetic Machines
X 3
Ulco Medical Anaesthetic Machines X 3
  5466/3   $ 14,549.60   $ 4,711.00   13-Sep-01

Christo Road Private Hospital

                                           

Total

                              $ 43,648.80   $ 14,133.00    

Nowra Community Hospital

  108   207619   63520   11687   1   Steris System   To be Advised   $ 56,359.04   $ 24,780.00   13-Sep-01

Nowra Community Hospital

                                           

Total

                              $ 56,359.04   $ 24,780.00    

Nepean Private Hospital

  108   208823   63520   11797   1   Tunnel Washer & Accessories   5423/1   $ 27,604.12   $ 10,370.00   13-Sep-01

Nepean Private Hospital

  108   208823   63520   11798   1   AESOP System Robotic Laparoscope Positio   5424/1   $ 6,593.29   $ 2,477.00   13-Sep-01

Nepean Private Hospital

  108   208823   63520   11798   2   AESOP System Robotic Laparoscope Positio   5424/2   $ 6,593.29   $ 2,477.00   13-Sep-01

Nepean Private Hospital

  108   208823   63520   11798   3   AESOP System Robotic Laparoscope Positio   5424/3   $ 6,593.29   $ 2,477.00   13-Sep-01

Nepean Private Hospital

  108   208823   63520   11798   4   AESOP System Robotic Laparoscope Position   5424/4   $ 6,593.29   $ 2,477.00   13-Sep-01

Nepean Private Hospital

  108   208823   63520   11818   1   Linvatec Camera System   5451   $ 23,225.23   $ 8,141.00   13-Sep-0l

Nepean Private Hospital

  108   208823   63520   11819   1   OS Jackson Spinal Surgery Table   5452   $ 42,578.11   $ 14,925.00   13-Sep-01

Nepean Private Hospital Total

                              $ 119,780.62   $ 43,344.00    

Castlecrag Private Hospital

  124   210811   63520   11968   1   Dyonic Camera Equipment   To be Advised   $ 70,503.61   $ 41,047.00   13-Sep-01

Castlecrag Private Hospital

                                           

Total

                              $ 70,503.61   $ 41,047.00    

The Mount Private Hospital

  124   211421   63520   11801   1   Stryker 884 Camera System   5428/1   $ 17,301.02   $ 6,499.50   13-Sep-01

The Mount Private Hospital

  124   211421   63520   11801   2   Stryker 884 Camera System   5428/2   $ 17,301.02   $ 6,499.50   13-Sep-01

The Mount Private Hospital

  124   211421   63520   11801   3   Stryker 884 Camera System   5428/3   $ 17,301.02   $ 6,499.50   13-Sep-01

The Mount Private Hospital

  124   211421   63520   11801   4   Stryker 884 Camera System   5428/4   $ 17,301.02   $ 6,499.50   13-Sep-01

The Mount Private Hospital

  124   211421   63520   11815   1   Jostra KL20 Heart Lung Machine   5448   $ 142,061.44   $ 49,798.00   13-Sep-01

The Mount Private Hospital

  124   211421   63520   11934   1   Venus Erbium YAG Laser   TBA   $ 70,215.59   $ 22,771.00   13-Sep-01

The Mount Private Hospital

                                           

Total

                              $ 281,481.11   $ 98,567.00    

St George Private Hospital

  132   212823   63520   11699   1   Sams Heart/Lung Machine       $ 60,782.78   $ 23,551.00   13-Sep-01

St George Private Hospital

  132   212823   63520   11699   2   Sams Heart/Lung Machine       $ 60,782.78   $ 23,551.00   13-Sep-01

St George Private Hospital

  132   212823   63520   11791   1   Operating Theatre Lights   5418/1   $ 13,069.48   $ 4,909.80   13-Sep-01

St George Private Hospital

  132   212823   63520   11791   2   Operating Theatre Lights   5418/2   $ 13,069.48   $ 4,909.80   13-Sep-01

St George Private Hospital

  132   212823   63520   11791   3   Operating Theatre Lights   5418/3   $ 13,069.48   $ 4,909.80   13-Sep-01

St George Private Hospital

  132   212823   63520   11791   4   Operating Theatre Lights   5418/4   $ 13,069.48   $ 4,909.80   13-Sep-01

St George Private Hospital

  132   212823   63520   11791   5   Operating Theatre Lights   5418/5   $ 13,069.48   $ 4,909.80   13-Sep-01

St George Private Hospital

  132   212823   63520   11792   1   Ablation Generator   5419/1   $ 20,512.63   $ 7,706.00   13-Sep-01

St George Private Hospital

  132   212823   63520   11794   1   Medical Air Compressor   5420/1   $ 39,969.20   $ 15,015.00   13-Sep-01

St George Private Hospital

  132   212823   63520   11816   1   Neurosurgical Frameless Stereotaxy System   5449   $ 213,807.33   $ 75,231.00   13-Sep-01

St George Private Hospital

                                           

Total

                              $ 461,202.12   $ 169,603.00    

Macarthur Private Hospital

  160   216219   63520   12150   1   Datex Ohmeda Aestiva Anaes Machine       $ 38,689.96   $ 20,959.00   13-Sep-01

Macarthur Private Hospital

  160   216219   63520   12150   2   Datex Ohmeda Aestiva Anaes Machine       $ 38,689.96   $ 20,959.00   13-Sep-01

Macarthur Private Hospital

                                           

Total

                              $ 77,379.92   $ 41,918.00    

Grand Total

                              $ 3,527,577.12   $ 1,305,238.10    

 

Hospital


  End Date

  Term

  Amortised
Balance


  Net Rent

  Stamp Duty

  GST

  Gross Rent

  GST

  NET

Christo Road Private Hospital

  13-May-04   33   $ 7,726.01   $ 373.51   $ 2.80   $ 37.63   $ 413.94   $ 37.63   $ 376.31

Christo Road Private Hospital

                   </