Exhibit 10.1


 


 


Share sale agreement 

Records Management


 


 


SIRVA (Asia
Pacific) Pty Limited


ACN 005 944 187


 


SIRVA Worldwide, Inc.


 


IM Australia Holdings Pty Ltd


 


IM New Zealand Holdings ULC 

New
Zealand Company Number 1711237


 


and


 


Iron
Mountain Incorporated


 


 





 


101 Collins
Street Melbourne Victoria 3000 Australia


Telephone +61
3 9288 1234  Facsimile +61 3 9288 1567


www.freehills.com  DX 240 Melbourne


 


SYDNEY
MELBOURNE PERTH BRISBANE SINGAPORE


Correspondent
Offices HANOI HO CHI MINH CITY JAKARTA KUALA LUMPUR


 


Reference  


 





















 


Table
of contents


 


	
  Clause

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  1

  	
  Definitions and Interpretation

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
  2

  	
  Conditions for Completion

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.1

  	
  Conditions

  	
  2

  
	
   

  	
  2.2

  	
  Notice

  	
  3

  
	
   

  	
  2.3

  	
  Reasonable
  endeavours

  	
  3

  
	
   

  	
  2.4

  	
  Waiver

  	
  3

  
	
   

  	
  2.5

  	
  Cut Off Date

  	
  3

  
	
   

  	
  2.6

  	
  No binding agreement for transfer

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
  3

  	
  Sale
  and purchase

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.1

  	
  Sale Shares

  	
  4

  
	
   

  	
  3.2

  	
  Associated
  rights

  	
  4

  
	
   

  	
  3.3

  	
  Purchase Price and Completion Cash Amount

  	
  4

  
	
   

  	
  3.4

  	
  Payment of the Purchase Price and Completion Cash Amount

  	
  5

  
	
   

  	
  3.5

  	
  Payments

  	
  5

  
	
   

  	
  3.6

  	
  Title and risk

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
  4

  	
  Period before Completion

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1

  	
  Carrying
  on of business

  	
  5

  
	
   

  	
  4.2

  	
  Permitted
  acts

  	
  6

  
	
   

  	
  4.3

  	
  Intra-group
  loans

  	
  7

  
	
   

  	
  4.4

  	
  Intentionally
  left blank

  	
  7

  
	
   

  	
  4.5

  	
  Subsidiary
  guarantees

  	
  7

  
	
   

  	
  4.6

  	
  Transaction Entity a member of a consolidated group

  	
  7

  
	
   

  	
  4.7

  	
  Contract
  Consents

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
  5

  	
  Termination

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.1

  	
  Material Adverse Change or breach of Warranty prior to Completion

  	
  11

  
	
   

  	
  5.2

  	
  Effect
  of termination

  	
  12

  
	
   

  	
  5.3

  	
  No other right to terminate or rescind

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  6

  	
  Completion

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.1 

  	
  Time and place 

  	
  13 

  
	
   

  	
  6.2

  	
  Completion

  	
  13

  
	
   

  	
  6.3

  	
  Notice to
  complete

  	
  13

  
	
   

  	
  6.4

  	
  Completion
  simultaneous

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
  7

  	
  Completion
  Accounts

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.1

  	
  Preparation

  	
  14

  
	
   

  	
  7.2

  	
  Purchase Price adjustments following Completion Accounts

  	
  14

  
	
   

  	
  7.3

  	
  Payment
  of adjustments

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
  8

  	
  Warranties and Indemnities

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.1

  	
  Warranties
  by the Seller

  	
  15

  



 





















 


	
   

  	
  8.2

  	
  Independent
  Warranties

  	
  15

  
	
   

  	
  8.3

  	
  Reliance

  	
  15

  
	
   

  	
  8.4

  	
  Indemnity for breach of Warranty

  	
  15

  
	
   

  	
  8.5

  	
  Tax indemnity

  	
  15

  
	
   

  	
  8.6

  	
  Scope
  of Tax Indemnity

  	
  17

  
	
   

  	
  8.7

  	
  Indemnity for moving services business

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  9

  	
  Qualifications and limitations on Claims

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.1

  	
  Disclosure

  	
  18

  
	
   

  	
  9.2

  	
  Awareness

  	
  19

  
	
   

  	
  9.3

  	
  No reliance

  	
  19

  
	
   

  	
  9.4

  	
  Maximum
  and minimum amounts

  	
  20

  
	
   

  	
  9.5

  	
  Time limits

  	
  20

  
	
   

  	
  9.6

  	
  Disposal
  of the Business

  	
  21

  
	
   

  	
  9.7

  	
  Recovery under other rights and reimbursement

  	
  21

  
	
   

  	
  9.8

  	
  No double
  claims

  	
  21

  
	
   

  	
  9.9

  	
  Mitigation of loss

  	
  22

  
	
   

  	
  9.10

  	
  General
  limitations

  	
  22

  
	
   

  	
  9.11

  	
  Forecasts

  	
  23

  
	
   

  	
  9.12

  	
  Limitations in relation to Tax

  	
  23

  
	
   

  	
  9.13

  	
  Buyer
  benefits

  	
  24

  
	
   

  	
  9.14

  	
  Sole remedy

  	
  24

  
	
   

  	
  9.15

  	
  Payments affecting the Purchase Price

  	
  25

  
	
   

  	
  9.16

  	
  Independent limitations

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
  10

  	
  Procedures for dealing with Claims

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.1

  	
  Notice of Claims

  	
  25

  
	
   

  	
  10.2

  	
  Third Party Claims

  	
  27

  
	
   

  	
  10.3

  	
  Management of ACCC investigation

  	
  28

  
	
   

  	
  10.4

  	
  Management of Identified Proceedings

  	
  29

  
	
   

  	
  10.5

  	
  Tax Demands

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
  11

  	
  Buyer Warranties

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.1

  	
  Buyer Warranties

  	
  32

  
	
   

  	
  11.2

  	
  Independent Warranties

  	
  32

  
	
   

  	
  11.3

  	
  Reliance

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
  12

  	
  Period after Completion

  	
  32

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.1

  	
  Appointment of proxy

  	
  32

  
	
   

  	
  12.2

  	
  Access to records by Seller

  	
  33

  
	
   

  	
  12.3

  	
  Pre-Completion tax returns

  	
  33

  



 





















 


	
  13

  	
  Employees

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
  14

  	
  Non-records management assets

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
  15

  	
  Non-moving services assets

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
  16

  	
  Tasmanian branch

  	
  37

  
	
   

  	
   

  	
   

  	
   

  
	
  17

  	
  Protection of the Business

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.1

  	
  Non-compete

  	
  38

  
	
   

  	
  17.2

  	
  No solicitation of customers

  	
  38

  
	
   

  	
  17.3

  	
  No solicitation of employees or agents by Seller

  	
  39

  
	
   

  	
  17.4

  	
  Severability

  	
  39

  
	
   

  	
  17.5

  	
  Definitions

  	
  39

  
	
   

  	
  17.6

  	
  Acknowledgment

  	
  40

  
	
   

  	
  17.7

  	
  Franchisees

  	
  40

  
	
   

  	
  17.8

  	
  Portfolio Interest

  	
  40

  
	
   

  	
  17.9

  	
  Retained Business

  	
  41

  
	
   

  	
  17.10

  	
  Acquisitions

  	
  41

  
	
   

  	
  17.11

  	
  Change of control – Seller

  	
  41

  
	
   

  	
  17.12

  	
  No solicitation of employees or agents

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
  18

  	
  Confidentiality and announcements

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  18.1

  	
  Agreed announcement

  	
  42

  
	
   

  	
  18.2

  	
  Confidentiality

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
  19

  	
  Duties, costs and expenses

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  19.1

  	
  Duties

  	
  43

  
	
   

  	
  19.2

  	
  Costs and expenses

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
  20

  	
  GST

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  20.1

  	
  Definitions

  	
  44

  
	
   

  	
  20.2

  	
  GST

  	
  44

  
	
   

  	
  20.3

  	
  Tax invoices

  	
  44

  
	
   

  	
  20.4

  	
  Reimbursements

  	
  44

  
	
   

  	
  20.5

  	
  Information, returns and accounting to end GST Group

  	
  45

  
	
   

  	
  20.6

  	
  Supplies between former members of the GST Group

  	
  45

  
	
   

  	
   

  	
   

  	
   

  
	
  21

  	
  Guarantee by Seller’s Guarantor

  	
  46

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  21.1

  	
  Guarantee and indemnity

  	
  46

  
	
   

  	
  21.2

  	
  Extent of guarantee and indemnity

  	
  46

  
	
   

  	
  21.3

  	
  Principal and independent obligation

  	
  47

  
	
   

  	
  21.4

  	
  Continuing guarantee and indemnity

  	
  47

  
	
   

  	
  21.5

  	
  No withholdings

  	
  47

  
	
   

  	
  21.6

  	
  Currency

  	
  47

  
	
   

  	
  21.7

  	
  Seller’s Guarantor’s Liability

  	
  47

  
	
   

  	
   

  	
   

  	
   

  
	
  22

  	
  Guarantee by Buyer’s Guarantor

  	
  47

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  22.1

  	
  Guarantee and indemnity

  	
  47

  



 





















 


	
   

  	
  22.2

  	
  Extent of guarantee and indemnity

  	
  48

  
	
   

  	
  22.3

  	
  Principal and independent obligation

  	
  48

  
	
   

  	
  22.4

  	
  Continuing guarantee and indemnity

  	
  48

  
	
   

  	
  22.5

  	
  No withholdings

  	
  48

  
	
   

  	
  22.6

  	
  Currency

  	
  49

  
	
   

  	
  22.7

  	
  Buyer’s Guarantor’s Liability

  	
  49

  
	
   

  	
   

  	
   

  	
   

  
	
  23

  	
  Transitional Services Agreement

  	
  49

  
	
   

  	
   

  	
   

  	
   

  
	
  24

  	
  General

  	
  49

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  24.1

  	
  Notices

  	
  49

  
	
   

  	
  24.2

  	
  Governing law and jurisdiction

  	
  51

  
	
   

  	
  24.3

  	
  Service of process

  	
  51

  
	
   

  	
  24.4

  	
  Prohibition and enforceability

  	
  52

  
	
   

  	
  24.5

  	
  Waivers and variation

  	
  52

  
	
   

  	
  24.6

  	
  Assignment

  	
  52

  
	
   

  	
  24.7

  	
  Further assurances

  	
  52

  
	
   

  	
  24.8

  	
  Approvals and consent

  	
  52

  
	
   

  	
  24.9

  	
  Remedies cumulative

  	
  52

  
	
   

  	
  24.10

  	
  Counterparts

  	
  52

  
	
   

  	
  24.11

  	
  Severability

  	
  53

  
	
   

  	
  24.12

  	
  No merger

  	
  53

  
	
   

  	
  24.13

  	
  Entire Agreement

  	
  53

  
	
   

  	
  24.14

  	
  Default Interest

  	
  53

  
	
   

  	
  24.15

  	
  Benefits held on trust

  	
  53

  
	
   

  	
  24.16

  	
  Contra proferentem excluded

  	
  54

  
	
   

  	
  24.17

  	
  Attorneys

  	
  54

  
	
   

  	
  24.18

  	
  No withholdings

  	
  54

  
	
   

  	
  24.19

  	
  Gross-up for Tax

  	
  54

  
	
   

  	
   

  	
   

  	
   

  



 





















 


This
Share Sale Agreement


 


is made on 14 October 2005 between the following parties:


 


1                                        SIRVA (Asia Pacific) Pty Limited

ACN 005 944 187

of 202-228 Greens Road, Dandenong, VIC 3175

(the Seller)


 


2                                        SIRVA Worldwide, Inc.

of 700 Oakmont Lane, Westmont IL 60559

(the Seller’s Guarantor)]


 


3                                        IM Australia Holdings Pty Ltd

ACN 116 568 033

of C/- Minter Ellison, Level 16, 525 Collins Street, Melbourne 3000,
Australia 

(the Buyer)


 


4                                        IM New Zealand Holdings ULC

New Zealand Company number 1711237

of C/- Minter Ellison Rudd Watts, Lumley Centre, 88 Shortland Street,
Auckland, New Zealand

(the New Zealand Buyer)


 


5                                        Iron Mountain Incorporated

of 745 Atlantic Avenue, Boston, Massachusetts 02111

(the Buyer’s Guarantor)


 


Recitals


 


A.                                  The
Seller owns the Sale Shares.


 


B.                                    The
Seller has agreed to sell and the Buyer has agreed to buy the Sale Shares on
the terms and conditions of this agreement.


 


C.                                    Under
the New Zealand Sale Agreement, the Sale Entity has agreed to sell and the New
Zealand Buyer has agreed to buy the New Zealand Sale Shares.  Each of the New Zealand Buyer and the Buyer
is, indirectly, a wholly owned subsidiary of the Buyer’s Guarantor.


 


D.                                   The
Seller’s Guarantor has agreed to guarantee the Seller’s obligations under this
agreement.


 


E.                                     The
Buyer’s Guarantor has agreed to guarantee the Buyer’s obligations under this
agreement.


 


The
parties agree


 


in consideration of, among other things, the mutual promises contained
in this agreement:


 


1





















 


1                                        Definitions and Interpretation


 


In this agreement capitalised expressions have the meanings set out in Schedule 1.
This agreement will be interpreted in accordance with Schedule 1.


 


2                                        Conditions for Completion


 


2.1                               Conditions


 


Clauses 3 and 6 do not become binding on the parties and are of no
force or effect unless and until each of the following conditions have been
satisfied or waived in accordance with clause 2.4:


 


(a)                                 Foreign Investment Review Board approval:


 


(1)                                 the
Buyer has received a written notice under the Foreign Acquisitions and
Takeovers Act 1975 (Cth), by or on behalf of the Treasurer of the Commonwealth
of Australia stating or to the effect that the
Commonwealth Government does not object to the transactions contemplated by
this agreement, either unconditionally or on terms acceptable to the Buyer
acting reasonably; or


 


(2)                                 the
Treasurer of the Commonwealth of Australia becomes precluded from making an
order in relation to the subject matter of this agreement and the transactions
contemplated by it under the Foreign Acquisitions and Takeovers Act 1975 (Cth);
or


 


(3)                                 if an
interim order is made under the Foreign Acquisitions and Takeovers Act 1975
(Cth) in respect of the transactions contemplated by this agreement, the
subsequent period for making a final order prohibiting the transactions
contemplated by this agreement elapses without a final order being made;


 


(b)                                Hive Out: completion
of the Hive Out;


 


(c)                                 New Zealand Sale Agreement: completion of the New Zealand Sale Agreement;


 


(d)                                Distribution of New Zealand purchase price: distribution of the purchase price in respect of the New Zealand
Sale Agreement to the Seller with such distribution to be appropriately
documented; and


 


(e)                                 Change of Control Consents: The counterparties to the Consent Contracts have provided each
Change of Control Consent (which consent may be provided on the condition that
Completion occurs) required under each such contract.


 


(f)                                   Shared Property Consents: The counterparties to the Shared Property Leases (and, where
applicable, any relevant Governmental Agencies) have provided each Shared
Property Lease Consent.


 


(g)                                Lender approval: the
Seller’s Guarantor has received the approval of the lenders under the Credit
Agreement for the transactions contemplated by this Agreement.


 


2





















 


2.2                               Notice


 


Each party must promptly notify the others in writing if it becomes
aware that any condition in clause 2.1 has been satisfied or has become
incapable of being satisfied.


 


2.3                               Reasonable
endeavours


 


(a)                                 The Buyer must use all reasonable endeavours to ensure that the
condition in clause 2.1(a) is satisfied as expeditiously as possible and
in any event on or before the Cut Off Date.


 


(b)                                The Seller must ensure that the conditions in clause 2.1(b) and
2.1(d) are satisfied and use reasonable endeavours to ensure that the
condition in clause 2.1(g) is satisfied as expeditiously as possible and
in any event on or before the Cut Off Date.


 


(c)                                 The Seller must procure that all reasonable endeavours are exercised
and the Buyer must exercise or procure the exercise of all reasonable
endeavours to ensure that the conditions in clauses 2.1(c), 2.1(e) and 2.1(f) are
satisfied as expeditiously as possible and in any event on or before the Cut
Off Date.  For the purpose of this clause
2.3(c) and the conditions in clauses 2.1(e) and 2.1(f), the Seller’s
obligation to procure the exercise of reasonable endeavours includes doing all
things reasonably requested by a counterparty to a Consent Contract or Shared
Property Lease as a condition of providing its Change of Control Consent or
Shared Property Lease Consent, as the case requires, including the incurring of
reasonable costs.


 


(d)                                The Buyer must keep the
other parties informed of the progress towards satisfaction of its obligations
under clause 2.3(a) and 2.3(c).


 


(e)                                 The Seller must keep the other parties informed of the progress
towards satisfaction of its obligations under clause 2.3(b) and
2.3(c).


 


(f)                                   Each party must cooperate and consult with each other party in
approaching the relevant regulatory bodies and counterparties to Consent
Contracts and Shared Property Leases for the purposes of satisfying the
conditions in clauses 2.1(a) and 2.1(e) and 2.1(f).


 


(g)                                Each party must provide all reasonable assistance to the other as is necessary to satisfy the conditions.


 


(h)                                The Seller must provide all information as may be reasonably
requested by the Buyer in connection with any notices and applications for
approval.


 


2.4                               Waiver


 


The conditions in clause 2.1 are for the benefit of both the Seller and
the Buyer and may only be waived by written agreement between the Seller and
the Buyer.


 


2.5                               Cut
Off Date


 


Either of the Seller or Buyer may, by not less than 2 Business Days’
notice to the other, terminate this agreement at any time before Completion if:


 


3





















 


(a)                                 the conditions in clause 2.1 are not satisfied, or waived in
accordance with clause 2.4, by the Cut Off Date; or


 


(b)                                the conditions in clause 2.1 become incapable of satisfaction or the
parties agree that any of the conditions in clause 2.1 cannot be satisfied.


 


2.6                               No
binding agreement for transfer


 


For the avoidance of doubt, nothing in this agreement will cause a
binding unconditional agreement for the transfer of shares or the sale of
assets to arise unless and until the conditions in clause 2.1 have been
satisfied or waived in accordance with clause 2.4 and no person will obtain
rights to call for a transfer of shares as a result of this agreement unless
and until those conditions have been satisfied.


 


3                                        Sale and purchase


 


3.1                               Sale
Shares


 


On the day for Completion determined under clause 6.1, the Seller must
sell, and the Buyer must buy, the Sale Shares for the Purchase Price free and
clear of all Encumbrances.


 


3.2                               Associated
rights


 


(a)                                 The Seller must sell the Sale Shares to the Buyer together with all
rights:


 


(1)                                 attached
to them as at the date of this agreement; and


 


(2)                                 which
accrue between the date of this agreement and Completion,


 


other than the Agreed Distributions.


 


(b)                                On or before Completion, the Seller is entitled to, and may procure
the payment to it of, an amount up to the Agreed Distributions. For the
avoidance of doubt, if the Sale Entity does not have sufficient profits to
cover the amount of the Agreed Distributions then the Seller may procure that
an amount up to the balance of the Agreed Distributions amount is paid to the
Seller by way of one or more returns of capital.  The Seller must ensure that the Transaction
Entities comply with all applicable laws in making any payments to it under
this clause 3.2(a).


 


(c)                                 The parties acknowledge that prior to Completion:


 


(1)                                 completion
of the Hive Out will occur; and


 


(2)                                 the
Seller will procure that no shares in any of Allied Pickfords Pty Limited,
Trans International Moving and Shipping Pty Limited, Allied Pickfords Ltd,
Allied Movers (NZ) Ltd and Pickfords New Zealand Ltd will be held directly or
indirectly by the Sale Entity.


 


3.3                               Purchase
Price and Completion Cash Amount


 


(a)                                 The consideration for the sale of the Sale Shares is the payment by
the Buyer of the Purchase Price and the Completion Cash Amount.


 


4





















 


(b)                                The Purchase Price will be paid as follows:


 


(1)                                 the
Base Purchase Price, payable by the Buyer on Completion in accordance with
clause 3.4 and clause 6;


 


(2)                                 the
balance of the Purchase Price, if any, or reimbursement by the Seller of part
of the Base Purchase Price, as the case requires, payable following
finalisation of the Completion Accounts in accordance with clauses 7.2 and 7.3;
and


 


(3)                                 any
other adjustments to the Purchase Price
payable by the Buyer or reimbursement by the Seller of part of the Base
Purchase Price, as the case requires, in accordance with this agreement.


 


3.4                               Payment
of the Purchase Price and Completion Cash Amount


 


On Completion, subject to clause 4.7 the Buyer must pay the Purchase
Price to the Seller in Immediately Available Funds. The Buyer must pay the
Completion Cash Amount to the Seller at the time for payment of the Adjustment
Amount under clause 7.


 


3.5                               Payments


 


Subject to clause 4.7, all payments to be made by a party under this
agreement must be made without counter claim or set-off.


 


3.6                               Title
and risk


 


Title to and risk in the Sale Shares passes to the Buyer on Completion.


 


4                                        Period before Completion


 


4.1                               Carrying
on of business


 


(a)                                 Subject to clause 4.2, between the date of this agreement and
the earlier of Completion and termination of this agreement, the Seller must
ensure that the Business is conducted in the ordinary course and, in
particular, that no Transaction Entity:


 


(1)                                 distributes
or returns any capital to its members;


 


(2)                                 buys
back any of its shares or otherwise alters its share capital;


 


(3)                                 issues
any shares, options or securities which are convertible into shares in that
Transaction Entity;


 


(4)                                 alters
its constitution;


 


(5)                                 disposes
of, or grants any option over, any asset the written down book value of which
exceeds $50,000 (other than in the ordinary course of the Business);


 


(6)                                 acquires
any assets the cost of which exceeds $50,000 other than:


 


(A)                             pursuant
to any agreement executed prior to the date of this agreement and disclosed in
the Disclosure Materials;


 


5





















 


(B)                               the
replacement of an asset in accordance with planned, routine or emergency
programs; or


 


(C)                               in the
ordinary course of the Business;


 


(7)                                 terminates,
assigns, materially amends or waives any material rights under any Material
Contract except with the prior consent of the Buyer;


 


(8)                                 commences
or voluntarily becomes a party to any court proceedings of a material nature
except where necessary to avoid material prejudice to the Business (in which
case the Seller will notify the Buyer of, and consult with the Buyer in respect
of, such proceedings);


 


(9)                                 enters
into any material agreement or arrangement with the Seller Group other than
agreements or arrangements necessary to effect any of the transactions
contemplated or referred to in this agreement or agreements or arrangements
entered into on arm’s length commercial terms and in the ordinary course of
Business that will be terminated on or prior to Completion;


 


(10)                           terminates
the employment of any employee of a Transaction Entity other than for cause or
otherwise pursuant to their employment contract;


 


(11)                           changes the
terms of employment, salary or bonus of any employee of a Transaction Entity in
any material respect, except in accordance with any terms of employment as at
the date of this agreement or consistent with past practice in the ordinary
course of the Business; or


 


(12)                           creates any
Encumbrance affecting any of the assets.


 


(b)                                Subject to clause 4.2, between the date of this agreement and the
earlier of Completion and termination of this agreement, the Seller must ensure
that the Buyer, its solicitors, accountants and other authorised representatives,
are (on reasonable notice being provided to the Seller) given reasonable access
during normal business hours to:


 


(1)                                 all
available books of account, books, records, contracts, commitments and property
of the Transaction Entities which are in, or prior to the Completion Date come
into, existence and the Seller must furnish or must procure that each
Transaction Entity furnishes to the Buyer during such period all such
information concerning the Transaction Entities as the Buyer may reasonably
request; and


 


(2)                                 all
executives and management of the Transaction Entities.


 


4.2                               Permitted
acts


 


Nothing in clause 4.1 restricts the Seller or any Transaction Entity
from doing anything:


 


(a)                                 which is contemplated in this agreement, any Transaction Agreement,
the New Zealand Sale Agreement, the Hive Out Agreement or the New Zealand Hive
Out Agreement or the Disclosure Letter;


 


6





















 


(b)                                to reasonably and prudently respond to an emergency or disaster
(including a situation giving rise to a risk of personal injury or damage to
property) which the Seller must do in consultation with the Buyer where
practicable;


 


(c)                                 which is necessary for a Transaction Entity to meet its legal or, in
the case of contracts entered into prior to the date of this agreement and
fully and fairly disclosed in the Disclosure Materials, contractual
obligations; or


 


(d)                                approved by the Buyer, such approval not to be unreasonably withheld
or delayed.


 


4.3                               Intra-group
loans


 


Before Completion, the Seller must:


 


(a)                                 identify to the Buyer all existing loans between
a Seller Group Member and a Transaction Entity; and


 


(b)                                procure that all payments are made and such other actions are taken
as may be necessary to ensure the payment in full of loan balances between any
Seller Group Members (on the one hand) and any Transaction Entities (on the
other hand).


 


4.4                               Intentionally
left blank


 


(a)


 


4.5                               Subsidiary
guarantees


 


(a)                                 Before Completion the Seller must ensure that, effective from
Completion, each Transaction Entity is released from any actual, contingent or
accrued liabilities under a Subsidiary Guarantee given by it.


 


(b)                                If a Transaction Entity has not been released from a Subsidiary
Guarantee in accordance with clause 4.5(a) by Completion, the Seller
must indemnify the Buyer and the New Zealand Buyer against any Loss which the
Transaction Entity pays, suffers, incurs or is liable for under or in relation
to that Subsidiary Guarantee after Completion.


 


4.6                              Transaction
Entity a member of a consolidated group


 


The Seller must:


 


(a)                                 within seven Business Days before the Completion Date, provide to
the Buyer a copy of the notification to form the Seller’s Consolidated Group
lodged with the Australian Taxation Office;


 


(b)                                provide to the Buyer a copy of the notification of those Transaction
Entities leaving the Seller’s Consolidated Group lodged with the Australian
Taxation Office, as soon as practicable after its lodgement date;


 


(c)                                 not less than seven Business Days before the Completion Date (or
other agreed date) notify the Buyer of any elections or choices made, or to be
made, in forming the Seller’s Consolidated Group to the extent that those
elections or choices relate to the tax cost setting amount allocated to the


 


7





















 


assets of any of the Transaction Entities on
the Transaction Entity becoming a member of the Seller’s Consolidated Group;


 


(d)                                not less than seven Business Days before the Completion Date (or
other agreed date), provide the Buyer with a copy of the Seller’s Tax Sharing
Agreement;


 


(e)                                 provide the Buyer with a draft calculation of the Exit Payment for
each Transaction Entity, for the Buyer’s review not less than 7 days prior to
the Completion Date;


 


(f)                                   before the Completion Date, procure that each Transaction Entity pay
the relevant Exit Payments to the Seller’s Head Company; and


 


(g)                                not less than 7 days before the Completion Date, confirm that each
Transaction Entity has paid all Funding Amounts (as defined in the Seller’s Tax
Sharing Agreement) required to be paid under the Seller’s Tax Sharing
Agreement.


 


4.7                               Contract
Consents


 


(a)                                 The Buyer and the Seller must each use their best endeavours to
obtain the written consent of the counterparty to the contracts identified as
Data room doc ID RM 3.1.19 No. NZ1 and Data room doc ID RM 3.1.20 No. A6
in Part B of schedule 12 (each, a Significant
Contract) (in accordance with the relevant requirements of each such
contract) to the change of control of the relevant Transaction Entity on
Completion, as soon as practicable.


 


(b)                                The Buyer and the Seller must continue to each use their respective
best endeavours to obtain such consent until the earlier of the consent being
obtained and 6 months after the Completion Date, or such longer period as the parties
agree. In this clause 4.7, the date 6 months after the Completion Date or such
later date agreed by the parties is the Trigger Date.


 


(c)                                 If written consent in accordance with clause 4.7(a) in respect
of a Significant Contract is not obtained before Completion, the parties must
use reasonable endeavours to achieve one of the following at the Seller’s
election:


 


(1)                                 the
Seller will provide to the Buyer an unconditional bank guarantee from an
Australian bank in an amount equal to the Reduction Amount for that Significant
Contract and otherwise on terms satisfactory to the Buyer acting reasonably; or


 


(2)                                 the
Seller and Buyer will agree that an amount of the Purchase Price equal to the
Reduction Amount for that Significant Contract will be paid by the Buyer to an
escrow agent, in satisfaction of its obligation to pay that amount of the
Purchase Price to the Seller under this agreement including clauses 3.3 and 3.4
and section 2.2 of Schedule 4, to be held by the escrow agent on
terms agreed between the parties and the escrow agent, acting reasonably.


 


(d)                                If neither of the alternatives in clause 4.7(c) is achieved by
the date 3 days before the Completion Date then the Buyer may withhold from the
Purchase Price payable on Completion under this agreement including clauses 3.3
and 3.4 and section 2.2 of Schedule 4 an amount equal to the


 


8





















 


Reduction Amount as defined in clause 4.7(f),
which the Buyer must hold in a restricted cash account.


 


(e)                                 For the avoidance of doubt, the provisions of this clause 4.7 may
apply in respect of both Significant Contracts, either Significant Contract, or
neither Significant Contract, as the case requires.


 


(f)                                   If:


 


(1)                                 subject
to clause 4.7(j), a counterparty to a Significant Contract gives written notice
of termination of the relevant Significant Contract before the Trigger Date; or


 


(2)                                 subject
to clause 4.7(k), a counterparty to a Significant Contract ceases to be a
customer of the Sale Entity before the Trigger Date and the Seller is satisfied
acting reasonably that the cessation is not of a short term nature,


 


then,
the Purchase Price will be reduced by an amount (Reduction
Amount) calculated as follows in respect of each Significant
Contract to which paragraph 4.7(f)(1)or (2) applies:


 


A x B


 


Where:       A =                           2.5; and


 


B =                             The
annual revenue of the Significant Contract as follows:


	
  Significant Contract

  	
   

  	
  Annual Revenue ($A)

  	
   

  
	
  RM
  3.1.19 No. NZ1

  	
   

  	
  $

  	
  2,800,000

  	
   

  
	
  RM
  3.1.20 No. A6

  	
   

  	
  $

  	
  708,000

  	
   

  



(g)                                If:


 


(1)                                 a
counter party to a Significant Contract has not provided written consent in
accordance with clause 4.7(a) by the Trigger Date;


 


(2)                                 the
Buyer gives the Seller a notice in writing by the Trigger Date that, in its
opinion, clause 4.7(g)(3)applies; and


 


(3)                                 the
revenue of the Significant Contract in respect of the three months ended on the
Trigger Date as agreed by the parties or determined by the expert under clause
4.7(i) (Quarterly Revenue), when
multiplied by 4, is less than 75% of the annual revenue of the Significant
Contract as shown in clause 4.7(f),


 


then, subject to clauses 4.7(h) and 4.7(j), the Purchase Price
will be reduced by the Reduction Amount in respect of that Significant
Contract.


 


(h)                                If the revenue of a Significant Contract to which clause 4.7(g) applies
in respect of the 12 months following the Trigger Date as agreed by the parties
or determined by the expert referred to in clause 4.7(i) (Annual Revenue) is greater than 75% of the annual revenue of
that Significant Contract as shown in clause 4.7(f), the Buyer must refund to
the Seller the relevant Reduction Amount paid to or retained by it under clause
4.7(l) plus interest on the Reduction Amount at the Interest Rate from and
including the Trigger Date to the date of refund of the Reduction Amount.


 


9





















 


The Buyer must refund the Reduction Amount in
accordance with this clause 4.7(h), together with the interest accrued in
accordance with this 4.7(h), by no later than 3 Business Days of the parties
agreeing the Annual Revenue or its being determined by the expert in accordance
with clause 4.7(i).


 


(i)                                    The Buyer must provide to the Seller reasonable access to its books
and records to verify its calculation of the Quarterly Revenue or Annual
Revenue for the purpose of clauses 4.7(g) or 4.7(h) as the case may
be. The parties must use reasonable endeavours to agree the Quarterly Revenue
or Annual Revenue, as the case may be, as soon as practicable. Quarterly
Revenue and Annual Revenue must be calculated in a manner consistent with the
accounting policies applied in the calculation of the annual revenue amounts
specified in clause 4.7(f). If the Buyer and the Seller do not agree on the
Quarterly Revenue within 20 Business Days of the Trigger Date or the Annual
Revenue within 20 Business Days of the expiration of the 12 months following
the Trigger Date then the dispute must be referred for resolution to an
independent expert agreed by the Buyer and the Seller within a further 10
Business Days. If they cannot agree on who the independent expert will be, the
Buyer and the Seller must promptly request the President for the time being of
the Institute of Chartered Accountants in Australia to appoint an independent
expert to determine the dispute. The Seller and the Buyer must instruct the expert
to determine the dispute within the shortest practicable time and deliver to
the Seller and the Buyer a report stating its opinion as to the Quarterly
Revenue or Annual Revenue, as the case may be. Sections 3.4(d) and (e),
3.5 and 3.6 of Schedule 5 will apply to determination of any dispute in
accordance with this clause 4.7(i).


 


(j)                                    Clause 4.7(f)(1) or clause 4.7(g) is not triggered if, at
the date of this agreement, the Buyer is aware of any fact, matter or
circumstance that would be reasonably likely to mean that the counterparty
would not provide its consent in respect of the change of control (where, for
the purpose of this clause, the state of knowledge of the Buyer will be limited
to matters within the actual knowledge of Richard Reese or Bob Miller).


 


(k)                                 Clause 4.7(f)(2) is not triggered if, at the date of this
agreement, the Buyer is aware of any fact, matter or circumstance that would be
reasonably likely to mean that the counterparty would cease to be a customer as
a result of the change of control (where, for the purpose of this clause, the
state of knowledge of the Buyer will be limited to matters within the actual
knowledge of Richard Reese or Bob Miller).


 


(l)                                    If the Purchase Price is reduced under clause 4.7(f) or 4.7(g),
as applicable:


 


(1)                                 if
clause 4.7(c)(1) applied


 


(A)                             the
Seller must pay the Reduction Amount to the Buyer by no later than 3 Business
Days of the occurrence of the relevant event triggering the operation of clause
4.7(f) or clause 4.7(g) as the case may be and clause 4.7(g) will
be deemed to be triggered at the time the Quarterly Revenue


 


10





















 


has
been agreed or determined in accordance with this clause 4.7; and


 


(B)                               the
Buyer may draw down from the bank guarantee the Reduction Amount if the Seller
fails to comply with clause 4.7(l)(1)(A);


 


(2)                                 if
clause 4.7(c)(2) applied, the Seller and Buyer must instruct the escrow
agent to pay the Reduction Amount to the Buyer; and


 


(3)                                 if
clause 4.7(d) applied, subject to clause 4.7(h), the Seller has no right
and may not take any Action in respect of the Reduction Amount.


 


(m)                              If:


 


(1)                                 written
consent to the change of control is obtained by the Buyer or the Sale Entity
for a Significant Contract (unconditionally or subject to conditions satisfactory
to the Buyer in its absolute discretion), the Buyer must notify the Seller of
that fact within 3 Business Days; or


 


(2)                                 as at
or prior to the Trigger Date neither clause 4.7(f) nor (g) applies
for a Significant Contract,


 


then, within 3 Business Days:


 


(3)                                 if
clause 4.7(c)(1) applied, the Buyer must return the bank guarantee
referable to the relevant Significant Contract to the Seller;


 


(4)                                 if
clause 4.7(c)(2) applied, the Seller and the Buyer must instruct the
escrow agent to pay the relevant Reduction Amount to the Seller; and


 


(5)                                 if
clause 4.7(d) applied, the Buyer must pay the relevant Reduction Amount to
the Seller.


 


(n)                                The Seller warrants to the Buyer and the New Zealand Buyer that it
is not aware of any fact, matter or circumstance that would be reasonably
likely to mean that the counterparty to a Significant Contract would:


 


(1)                                 not
provide any consent in respect of the change of control; or


 


(2)                                 cease
to be a customer as a result of the change of control.


 


5                                        Termination


 


5.1                               Material
Adverse Change or breach of Warranty prior to Completion


 


If:


 


(a)                                 there is any Material Adverse Change between the date of this
agreement and the Completion Date; or


 


(b)                                the Buyer identifies a breach of or an inaccuracy in any of the
Warranties constituting or resulting in a Material Adverse Effect,


 


11





















 


the Buyer may elect by written notice to the Seller within five
Business Days of becoming aware of the event giving rise to the Material
Adverse Change or the breach of Warranty, as the case requires (but not later
than Completion) to terminate this agreement. 
If the Buyer elects to terminate, no party will have any further
liability to any other party under this agreement.  If the Buyer does not elect to terminate in
accordance with this clause 5.1, the Buyer must complete the purchase of the
Sale Shares in accordance with this agreement and will have no right to make
any Claim in respect of the Material Adverse Change or breach of Warranty
except under the Warranties and clause 8. 
The parties acknowledge and agree that any Employees not agreeing to
remain employed by the appropriate Transaction Entity after Completion will not
constitute a Material Adverse Change or Material Adverse Effect.


 


5.2                               Effect
of termination


 


If this agreement is terminated under clause 2.5, clause 5.1 or clause
6.3(b), then:


 


(a)                                 the parties will procure that each Transaction Agreement (if
permitted by the terms of that contract) which has already been executed is
terminated in accordance with its terms;


 


(b)                                each party is released from its obligations to further perform its
obligations under this agreement and the Transaction Agreements, except those
expressed to survive termination;


 


(c)                                 each party retains the rights it has against the other in respect of any breach of this agreement occurring before
termination;


 


(d)                                the Buyer must return to the Seller all documents and other
materials obtained from the Seller in accordance with the terms of the
Confidentiality Agreement; and


 


(e)                                 the rights and obligations of each party under each of the following
clauses and schedules will continue independently from the other obligations of
the parties and survive termination of this agreement:


 


(1)                                 clause
1 and Schedule 1 (Definitions and Interpretation);


 


(2)                                 clause
4.7 (Termination);


 


(3)                                 clause
18 (Confidentiality and announcements);


 


(4)                                 clause
19 (Duties, costs and expenses);


 


(5)                                 clause
20 (GST); and


 


(6)                                 clause
23 (General).


 


5.3                               No
other right to terminate or rescind


 


No party may terminate or rescind this agreement except as permitted
under clause 2.5, this clause 4.7 or clause 6.3(b).


 


12





















 


6                                        Completion


 


6.1                               Time
and place


 


(a)                                 Subject to clauses 4.7 and 6.1(b), Completion must take place at the
office of Freehills at Level 42, 101 Collins Street, Melbourne, at 11:00 a.m.
on the first day which is:


 


(1)                                 in a
calendar month after the calendar month in which completion of the Hive Out
occurs; and


 


(2)                                 both
the last Business Day of a calendar month and which is at least 1 Business Day
after satisfaction or waiver of the conditions in clause 2.1,


 


or such other place, time and date as the Seller and Buyer agree.


 


(b)                                The parties agree to use best endeavours to ensure that Completion
will take place on 30 November 2005 or, if that is not achieved, 30 December 2005.


 


(c)                                 The parties agree to cooperate with each other to facilitate any
reasonable arrangement (including any arrangement that documents be held in
escrow and any arrangement that effective completion occur on the last Business
Day of a calendar month where Completion occurs within 10 Business Days of such
day) to ensure Completion can occur in accordance with clause 6.1(a) and
6.1(b).


 


6.2                               Completion


 


(a)                                 On or before Completion, each party must carry out the Completion
Steps referable to it in accordance with Schedule 4.


 


(b)                                Completion is taken to have occurred when each party has performed
all its obligations under this clause 6 and Schedule 4.


 


6.3                               Notice
to complete


 


(a)                                 If a party (Defaulting Party)
fails to satisfy its obligations under clause 6.2 and Schedule 4 on the
day and at the place and time for Completion determined under clause 6.1 then
the other party (Notifying Party) may give the
Defaulting Party a notice requiring the Defaulting Party to satisfy those
obligations within a period of 5 Business Days from the date of the notice and
declaring time to be of the essence.


 


(b)                                If the Defaulting Party fails to satisfy those obligations within
those 5 Business Days the Notifying Party may, without limitation to any other
rights it may have, terminate this agreement by giving written notice to the
Defaulting Party.


 


6.4                               Completion
simultaneous


 


(a)                                 Subject to clause 6.4(b), the actions to take place as contemplated
by this clause 6 and Schedule 4 are interdependent and must take place, as
nearly


 


13





















 


as possible, simultaneously. If one action
does not take place, then without prejudice to any rights available to any
party as a consequence:


 


(1)                                 there
is no obligation on any party to undertake or perform any of the other actions;


 


(2)                                 to
the extent that such actions have already been undertaken, the parties must do
everything reasonably required to reverse those actions; and


 


(3)                                 the
Seller and the Buyer must each return to the other all documents delivered to
it under clause 6.2(a) and Schedule 4 and must each repay to the
other all payments received by it under clause 6.2(a) and Schedule 4,
without prejudice to any other rights any party may have in respect of that
failure.


 


(b)                                The Buyer may, in its sole discretion, waive any or all of the
actions which the Seller is required to perform under clause 2.1 of Schedule 4
and the Seller may, in its sole discretion, waive any or all of the actions
which the Buyer is required to perform under clause 2.2 of Schedule 4.


 


7                                        Completion Accounts


 


7.1                               Preparation


 


Following Completion the Seller and the Buyer must procure that the
Completion Accounts are prepared and finalised in accordance with Schedule 5.


 


7.2                               Purchase
Price adjustments following Completion Accounts


 


If the Completion Net Working Capital:


 


(a)                                 is less than the Target Net Working Capital by more than $100,000,
the Seller must pay the Adjustment Amount to the Buyer, as an adjustment to the
Purchase Price;


 


(b)                                exceeds the Target Net Working Capital by more than $100,000, the
Buyer must pay the Adjustment Amount to Seller, as an adjustment to the
Purchase Price; or


 


(c)                                 equals or is within $100,000 of the Target Net Working Capital, no
adjustment to the Purchase Price will be made under this clause 7.2.


 


7.3                               Payment
of adjustments


 


(a)                                 A party required to make a payment to another party under this
clause 7 must make the payment in Immediately Available Funds within 5 Business Days after the finalisation of the Completion
Accounts or Expert’s Report as applicable.


 


(b)                                All amounts payable by a party under clause 7.2 will accrue interest
on a daily basis at the Interest Rate from and including the Completion Date to
and including the earlier of the date of payment or 5 Business
Days after the finalisation of the Completion Accounts or Expert’s Report as


 


14





















 


applicable (Last Payment
Date). If any amount remains unpaid on or after the Last Payment Date,
interest under clause 24.14 will apply from and including the Last Payment Date
until the date of payment with respect to that amount.


 


8                                        Warranties and Indemnities


 


8.1                               Warranties
by the Seller


 


Subject to the qualifications and limitations in clause 9, the Seller warrants to the Buyer and the New Zealand Buyer that the
Warranties are true and correct:


 


(a)                                 in respect of each Warranty which is expressed to be given on a
particular date, on that date; and


 


(b)                                in respect of each other Warranty, on the date of this agreement,
immediately before completion of the New Zealand Sale Agreement and immediately
before Completion.


 


8.2                               Independent
Warranties


 


Each of the Warranties is to be construed
independently of the others and is not limited by reference to any other
Warranty.


 


8.3                               Reliance


 


The Seller acknowledges that:


 


(a)                                 the Buyer has entered into this agreement and will complete this
agreement in reliance on the Warranties; and


 


(b)                                the New Zealand Buyer has entered into the New Zealand Sale
Agreement and will complete the New Zealand Sale Agreement in reliance on the
Warranties.


 


8.4                               Indemnity
for breach of Warranty


 


The Seller indemnifies the Buyer, the New Zealand Buyer and each
Transaction Entity against any Loss or Action suffered or incurred by the
Buyer, the New Zealand Buyer or a Transaction Entity as a result of a breach of
a Warranty, except to the extent that the Warranty or the Seller’s liability
for the Loss are limited or qualified under clause 9, and following Completion
this will be the sole remedy of the Buyer and the New Zealand Buyer in respect
of any such breach.


 


8.5                               Tax
indemnity


 


The Seller indemnifies the Buyer, the New Zealand Buyer and each
Transaction Entity for any Tax Liability incurred, arising as a result of, or
in respect of, or by reference to:


 


(a)                                 (pre-completion events) any Event
occurring, or deemed for any Tax purpose to occur, on or before Completion in
relation to the activities of the Transaction Entities including any Event
contemplated by the New Zealand Hive Out Agreement;


 


15





















 


(b)                                (group liabilities) any Group
Liability of the Head Company of a Consolidated Group of which any of the
Transaction Entities and the Seller (or any related body corporate of the
Seller) were members at any time prior to Completion (including where the Head
Company’s choice to consolidate is made after Completion);


 


(c)                                 (income) any income, profits or
gains (including capital gains) earned, derived, accrued or received or deemed
for any Tax purpose to be earned, derived, accrued or received on or before or
in respect of any period ending on or before Completion in relation to the
activities of the Transaction Entities;


 


(d)                                (deductions) the disallowance for
income tax purposes of any deductions claimed and attributable to any period
ending on or before Completion in relation to the activities of the Transaction
Entities;


 


(e)                                 (withholdings) any withholding
required to be made or any notice required to be given on or before the
Completion Date in relation to the activities of the Transaction Entities;


 


(f)                                   (credits) the disallowance or
reduction of a Tax credit (including an Input Tax Credit) or rebate of Tax
relating to a matter referred to in (a), (b), (c), (d) or (e) above;


 


(g)                                (tax relief) any liability for Tax
from which any Transaction Entity or the Seller may have obtained relief
(whether by way of deferral of capital gains tax or otherwise) which has or
will become payable as a result of entry into this agreement;


 


(h)                                (transaction and goods and services tax)
any Tax Liability in respect of any agreement, deed, other document or
transaction (including any supply or acquisition made under or in connection
with any agreement, deed, other document or transaction) entered into prior to
Completion to which any Transaction Entity is or has been a party or by which
any Transaction Entity derives, has derived or will derive a substantial
benefit;


 


(i)                                    (Group Liabilities) a Group
Liability not being covered by the Seller’s Tax Sharing Agreement under section 721-25
of ITAA 1997, including without limitation:


 


(1)                                 in
the circumstances set out in section 721-25(2) of the ITAA 1997 (the
tax sharing agreement was entered into as an arrangement to prejudice the
recovery by the Commissioner of Taxation of some or all of any Group Liability
of the Seller’s Consolidated Group); and


 


(2)                                 in
the circumstances set out in section 721-25(3) of ITAA 1997 (the
Seller’s Head Company fails to provide a copy of the Seller’s Tax Sharing
Agreement in the approved form as required by section 721-25(3));


 


(j)                                    (funding amounts) any Liability of
any Transaction Entity that relates to a Group Liability of the Seller’s
Consolidated Group that arises under any Tax Funding Agreement;


 


16





















 


(k)                                 (not leaving clear) a failure of
any Transaction Entity to leave clear of a Group Liability of a Consolidated
Group of which the Transaction Entity was a member at any time before
Completion;


 


(l)                                    (GST group liabilities) any amount
for which a Transaction Entity is or becomes liable for under section 53
of the Taxation Administration Act 1953 in
respect of any member of a GST group of which the Transaction Entity was a
member of at any time before Completion


 


8.6                               Scope
of Tax Indemnity


 


(a)                                 The indemnity in clause 8.5 covers the total amount of all costs and
expenses incurred by any of the Buyer, the New Zealand Buyer and the
Transaction Entities in connection with any Tax Action (including all costs and
expenses incurred as a result of action taken to avoid, dispute, object
against, resist, appeal, compromise or defend the Tax Action and adjudication
concerning the Tax Action), and for the avoidance of doubt, includes all costs
and expenses incurred by any of the Buyer, the New Zealand Buyer and the
Transaction Entities in connection with any action taken under clause 8.5 or
this clause 8.6(a).


 


(b)                                The indemnity in clause 8.5 is in no way limited by any disclosure
made against the Warranties or by any due diligence investigations conducted by
the Buyer or the New Zealand Buyer.


 


(c)                                 Any sum payable by the Seller to the Buyer, the New Zealand Buyer
and the Transaction Entities under clause 8.5 or clause 8.6(a) shall be
paid free and clear of any deduction or withholding whatsoever.


 


(d)                                If any deduction or withholding is required by law to be made from
any payment by the Seller under clause 8.6 or clause 8.6(a), or if any of the
Buyer, the New Zealand Buyer, the Transaction Entities and the Buyer’s Head
Company are subject to Tax in respect of any such payment, the amount of the
payment shall be increased by such additional amount as is necessary to ensure
that the net amount received and retained by any of the Buyer, the New Zealand
Buyer and the Transaction Entities (after taking account of all deductions or
withholdings or Tax) is equal to the amount which it would have received and
retained had the payment in question not been subject to any deductions or
withholdings or Tax.


 


(e)                                 For the purposes of clause 8.5 and clause 8.6, each of the Buyer and
the New Zealand Buyer contracts on its own behalf and also as trustee for each
Transaction Entity and accordingly, may take action on its own behalf or on
behalf of any Transaction Entity to recover under clauses 8.5 and 8.6.


 


8.7                               Indemnity
for moving services business


 


(a)                                 In this clause 8.7, Moving Services Business means
any business, undertaking, action or activity other than the Business that was
carried on or taken by any or all of the Seller Group or Transaction Entities,
or in which any or all of the Seller Group or Transaction Entities had an
interest, prior to Completion, and includes the businesses, undertakings,
actions or


 


17





















 


activities (including assets, contracts and
employees) the subject of the Hive Out Agreement and New Zealand Hive Out
Agreement.


 


(b)                                The Seller indemnifies the Buyer, the New Zealand Buyer and each
Transaction Entity against any Loss or Action suffered or incurred by the
Buyer, the New Zealand Buyer or a Transaction Entity in relation to or arising
from the Moving Services Business including in relation to or arising from:


 


(1)                                 the
ACCC Investigation;


 


(2)                                 the
circumstances, actions, conduct or omissions giving rise to the ACCC
Investigation including in respect of any Action taken by a person other than
the ACCC;


 


(3)                                 any
Action taken against the Seller Group and/or any Transaction Entity by a
customer or supplier of the Moving Services Business;


 


(4)                                 any
Action taken by any past or present employee of the Seller Group and/or any
Transaction Entity engaged wholly or partly in the Moving Services Business to
the extent that such Action relates to the Moving Services Business;


 


(5)                                 any
breach of law or any Authorisation or failure to hold an Authorisation in
respect of the Moving Services Business;


 


(6)                                 any
breach of contractual obligation;


 


(7)                                 the
Identified Proceedings and the circumstances, actions, conduct or omissions
giving rise to the Identified Proceedings; and


 


(8)                                 the
assets and operations and any other fact, matter, activity, event or
circumstance relating directly or indirectly to the conduct of the Moving
Services Business,


 


but only to the extent that the Buyer and the New Zealand Buyer (as the
case may be) does not recover in respect of that Loss or Action pursuant to the
Purchase Price adjustment in clause 7.


 


(c)                                 The indemnity provided in clause 8.7(b), insofar as it relates to
the ACCC Investigation, will not apply to any Loss directly resulting from a
breach by the Buyer of its obligations under clause 10.3.


 


(d)                                Clauses 9.4, 9.5, 9.6, 9.7, 9.10 and 10 do not apply in relation to
the indemnity provided in clause 8.7(b).


 


9                                        Qualifications and limitations on Claims


 


9.1                               Disclosure


 


(a)                                 The Buyer and New Zealand Buyer acknowledge and agree that the
Seller has disclosed or is deemed to have disclosed against the Warranties, and
each of the Buyer and New Zealand Buyer is aware of, and will be treated as
having actual knowledge of, all facts, matters and circumstances which:


 


(1)                                 are
fairly disclosed in the Disclosure Materials; or


 


18





















 


(2)                                 are
fairly disclosed on any public record maintained by ASIC and available for
inspection by the public as at the date two Business Days before the date of
this agreement.


 


(b)                                The Warranties (other than the Tax Warranties) are given subject to
the disclosures or deemed disclosures described in clause 9.1(a). The Seller
will have no liability under the Warranties (other than the Tax Warranties) to
the extent that disclosure is made or is deemed to have been made against the
Warranties under this clause 9.1.


 


(c)                                 The Buyer and New Zealand Buyer must not knowingly make a Claim for
breach of Warranty or under clause 8.4 (other than a Tax Claim), and it shall
not be a breach of Warranty (other than a Tax Warranty), if the Buyer or New
Zealand Buyer is actually aware that the facts, matters or circumstances giving
rise to such Claim are disclosed or are deemed to have been disclosed under
clause 9.1(a).


 


9.2                               Awareness


 


Where a Warranty is given “to the best of the Seller’s knowledge”, or “so
far as the Seller is aware” or with a similar qualification as to the Seller’s
awareness or knowledge, the Seller will be deemed to know or be aware of a
particular fact, matter or circumstance only if a Specified Executive is
actually aware of that fact, matter or circumstance as
at the date of this agreement.


 


9.3                               No
reliance


 


(a)                                 Each of the Buyer and New Zealand Buyer acknowledges, and represents
and warrants to each Seller Group Member, that:


 


(1)                                 at no
time has any Buyer Group Member relied on any representation, warranty, promise
or undertaking in respect of the future financial performance or prospects of
the Transaction Entities or otherwise except those expressly set out in this
agreement (including in the Warranties); and


 


(2)                                 no
representations, warranties, promises, undertakings, statements or conduct:


 


(A)                             have
induced or influenced the Buyer or New Zealand Buyer to enter into, or agree to
any terms or conditions of, this agreement or the New Zealand Sale Agreement;


 


(B)                               have
been relied on in any way as being accurate by a Buyer Group Member;


 


(C)                               have
been warranted to a Buyer Group Member as being true; or


 


(D)                              have
been taken into account by the Buyer or New Zealand Buyer as being important to
its decision to enter into, or agree to any or all of the terms of, this
agreement or the New Zealand Sale Agreement,


 


except those expressly set out in this agreement (including in the
Warranties).


 


19





















 


(b)                                If a Buyer Group Member has received opinions, estimates,
projections, business plans, budget information or other forecasts in respect
of the Transaction Entities, each of the Buyer and New Zealand Buyer
acknowledges and agrees that:


 


(1)                                 there
are uncertainties inherent in attempting to make these estimates, projections,
business plans, budgets and forecasts and each of the Buyer and New Zealand
Buyer is familiar with these uncertainties; and


 


(2)                                 the
Seller is not liable under any Claim arising
out of or relating to any opinions, estimates, projections, business plans,
budgets or forecasts in respect of the Transaction Entities.


 


9.4                               Maximum
and minimum amounts


 


(a)                                 The Seller is not liable
under a Claim for breach of Warranty or under clause 8.4 (other than a Tax
Claim) unless the amount finally agreed or adjudicated to be payable in respect
of that Claim:


 


(1)                                 exceeds
$50,000; and


 


(2)                                 either
alone or together with the amount finally agreed or adjudicated to be payable
in respect of other Claims exceeds $1,000,000,


 


in which event, subject to clause 9.4(b) and (c), the Seller is only liable for
that amount which exceeds $1,000,000.


 


(b)                                The maximum aggregate amount which the Seller is required to pay in
respect of all Claims for breach of Warranty or under clause 8.4 (other than a
Tax Claim) whenever made is limited to 25% of the aggregate of the Purchase
Price and the Purchase Price as defined under the New Zealand Sale Agreement.


 


(c)                                 For the purposes of clause 9.4(a)(1):


 


(1)                                 Claims
arising out of separate sets of facts, matters or circumstances will not be
treated as one Claim, even if each set of facts, matters or circumstances may
be a breach of the same Warranty; and


 


(2)                                 Claims
arising out of the same or similar facts, matters and circumstances will be
treated as one Claim.


 


9.5                               Time
limits


 


The Seller is not liable under a
Claim for breach of Warranty or under clauses
8.4 or 8.5 if:


 


(a)                                 the Buyer does not notify the Seller of the Claim in accordance with
clause 10.1(a):


 


(1)                                 within
4 years after Completion in the case of
a Tax Claim, other than a Tax Claim arising from fraud or evasion, in which
there is no time period in which the Buyer must notify the Seller of the Tax
Claim; or


 


20





















 


(2)                                 by 1 May 2007
in all other cases for breach of Warranty or under clause 8.4,


 


(b)                                within 6 months (or
such longer period as may be agreed) of the date the Buyer is required to
notify the Seller of the Claim under clause 10.1(a):


 


(1)                                 the
Claim has not been agreed, compromised or settled; or


 


(2)                                 the
Buyer has not issued or served legal proceedings against the Seller in respect
of the Claim.


 


9.6                               Disposal
of the Business


 


The Seller is not liable under a
Claim if:


 


(a)                                 the Transaction Entities have ceased to be wholly owned
subsidiaries, or the Transaction Entity in respect of which the Claim arises
has ceased to be a wholly owned subsidiary, of the Buyer, the Buyer’s Guarantor
or any related bodies corporate of either of them; or


 


(b)                                all or
a majority of the Business, or the assets of the Transaction Entity in respect
of which the Claim arises, has or have ceased to be owned and controlled by the
Buyer, the Buyer’s Guarantor or any related bodies corporate of either of them.


 


9.7                               Recovery
under other rights and reimbursement


 


(a)                                 The Seller is not liable under a
Claim for any Loss that a Buyer Group Member or a Transaction Entity is
entitled to and able to recover, or be compensated for by any other means, from
another source whether by way of contract, indemnity or otherwise (including
under a policy of insurance or from a
Governmental Agency).


 


(b)                                If, after the Seller has made a payment in respect of a Claim, a
Buyer Group Member or a Transaction Entity recovers or is compensated for by
any other means any Loss which gave rise to the Claim in an amount of at least
$50,000, the Buyer must immediately pay to the Seller as an increase in the
Purchase Price, the lesser of:


 


(1)                                 the
amount of the Loss which was recovered or compensated for; and


 


(2)                                 the
amount paid by the Seller in respect of the Claim.


 


9.8                               No
double claims


 


(a)                                 The Seller is not liable under a
Claim for any Loss which a Buyer Group Member or a Transaction Entity recovers,
or is compensated for, under a Transaction Agreement, including in respect of
the New Zealand Tax Liability (to the extent the purchase price under the New
Zealand Sale Agreement is reduced for the New Zealand Tax Liability).


 


(b)                                This clause 9.8 does not prevent the Buyer Group Member or
Transaction Entity entitled to make a claim under a Transaction Agreement from
commencing that claim. However, if for any reason more than one amount is paid
in respect of the same Loss, the Buyer must procure that the


 


21





















 


additional amount is immediately repaid to
one or more Seller Group Members nominated by the Seller so as to give full
effect to clause 9.8(a).


 


9.9                               Mitigation of loss


 


Nothing in this agreement affects each of the Buyer’s and New Zealand
Buyer’s duty to use reasonable endeavours to mitigate any Loss suffered by it
for which it may make a Claim.


 


9.10                        General
limitations


 


The Seller is not liable under a
Claim for breach of Warranty or under clause 8.4 for any Loss to the extent
that Loss:


 


(a)                                 (provisions in accounts): has been
included as a provision, allowance, reserve or accrual in the Accounts or the
Completion Accounts or which arises in respect of a matter which has been noted
in the Accounts;


 


(b)                                (pre Completion actions): arises
from an act or omission by or on behalf of a Seller Group Member or a
Transaction Entity before Completion which was done or made:


 


(1)                                 after
consultation with the Buyer and the receipt of no objection from the Buyer
within a period of five Business Days of consultation; or


 


(2)                                 with
the consent, direction or instruction of a Buyer Group Member in writing and
the Buyer Group Member knew the act or omission would result in, or increase
the size of, a Claim,


 


except to the extent that the Loss relates to or arises from a
restructure of the Seller Group, any Seller Group Member or any businesses
conducted by those entities, prior to Completion;


 


(c)                                 (post Completion conduct): arises
from anything done or not done after Completion by or on behalf of a Buyer
Group Member or a Transaction Entity in the knowledge that such act or omission
is reasonably likely to result in a Loss that may be the subject of a Claim for
breach of Warranty or under clause 8.4, otherwise than:


 


(1)                                 pursuant
to a legally binding obligation or commitment created on or before Completion;


 


(2)                                 in
the ordinary course of business; or


 


(3)                                 with
the prior consent of the Seller;


 


(d)                                (change of law or interpretation):
arises from:


 


(1)                                 the
enactment or amendment of any legislation or regulations (except those arising
from announcements made prior to the date of this agreement);


 


(2)                                 a
change in the judicial or administrative interpretation of the law; or


 


(3)                                 a
change in the practice or policy of any Governmental Agency,


 


22





















 


after the date of this agreement, including legislation, regulations,
amendments, interpretation, practice or policy which has a retrospective
effect;


 


(e)                                 (change in ownership): would not
have arisen but for a change in ownership of the Transaction Entities, or a
restructure of the Business, after Completion;


 


(f)                                   (change in accounting policy):
would not have arisen but for a change after Completion in any accounting
policy or practice of a Buyer Group Member or a Transaction Entity which
applied before Completion;


 


(g)                                (change of Business): arises out of
the cessation or substantial alteration of the Business after Completion;


 


(h)                                (legal costs): is not a reasonable
legal cost;


 


(i)                                    (consequential loss): is special,
indirect or consequential loss or damage including loss
of profit, however the parties acknowledge that a diminution in the value of
the Sale Shares, New Zealand Sale Shares or all or any of the Transaction
Entities including by reason of a breach of Warranty is a direct loss, rather
than a special, indirect or consequential loss or damage; or


 


(j)                                    (remediable loss): is remediable,
provided it is remedied to the satisfaction of the Buyer, acting reasonably,
and at the Seller’s cost, within 30 Business Days
after the Seller receives written notice of the Claim in accordance with
clause 10.1(a).


 


9.11                        Forecasts


 


Each of the Buyer and New Zealand Buyer acknowledges and agrees that
despite anything else in this agreement no warranty is given in connection with
any forecast, model, projection or estimate.


 


9.12                        Limitations
in relation to Tax


 


(a)                                 If:


 


(1)                                 an
accrual, allowance, provision or reserve in the Completion Accounts in respect
of a Tax exceeds the actual liability in respect of that Tax and that liability
has been finally satisfied; or


 


(2)                                 an
entitlement to any Tax Relief which is shown as an asset in the Completion
Accounts is understated and the amount of the understatement has been actually
received by a Transaction Entity,


 


then the Seller’s liability in respect of any Tax Claims
shall be reduced by the amount of the actual excess or actual understatement
(as applicable).


 


(b)                                The Seller is not liable under a
Claim for any Loss which:


 


(1)                                 (inconsistent
position): arises from a Transaction Entity taking
a position in relation to the application of a Tax Law which is inconsistent
with the position taken by that Transaction Entity before Completion (including
any position adopted in relation to the preparation of any Pre Completion
Returns or in relation to the


 


23





















 


calculation
of any reserve or provision relating to Tax in the Completion Accounts), unless
the Transaction Entity is required to adopt an inconsistent position to comply
with a Tax Law;


 


(2)                                 (failure to take action): arises from a Transaction Entity’s
failure to take any action after Completion required by, or which should
reasonably be taken under, any applicable Tax Law in relation to any Tax or
Duty (including any failure to take any such action within the time allowed),
unless the failure to take such action is at the request, consent or direction
of the Seller; or


 


(3)                                 (action contrary to Completion Accounts): arises from a
failure by a Buyer Group Member or a Transaction Entity to make any claim,
election, surrender or disclaimer or give any notice or consent or do any other
thing after Completion, the making, giving or doing of which was taken into
account or assumed in computing the provision for Tax in the Completion
Accounts and notified by the Seller in writing to the Buyer by Completion.


 


9.13                        Buyer
benefits


 


(a)                                 The Buyer must notify the Seller of any change described in clause
9.12(b)(1) specifying the circumstances of the inconsistent position, at
least 14 days before the Transaction Entity adopts it.


 


(b)                                In assessing any Loss recoverable by the Buyer or New Zealand Buyer
as a result of any Claim, there must be taken into account any benefit actually
received by the Buyer Group (including any amount of any relief, allowance,
exemption, exclusion, set-off, deduction, loss, rebate, refund, right to repayment
or credit granted or available in respect of a Tax under any law obtained or
obtainable by the Buyer Group and any amount by which any Tax for which the
Buyer Group is or may be liable to be assessed or accountable is reduced or
extinguished), arising directly or indirectly from the matter which gives rise
to that Claim.


 


(c)                                 In assessing any Loss that a Buyer Group Member or a Transaction
Entity is entitled to recover, or be compensated for, for the purpose of
clauses 9.7 and 9.8, there must be taken into account any detriment suffered or
incurred by a Buyer Group Member or a Transaction Entity (including any Tax,
recovery costs, increased premiums payable under a policy of insurance) and any
other Loss arising directly or indirectly from the recovery or compensation.


 


9.14                        Sole
remedy


 


(a)                                 It is the intention of the parties that the Buyer’s and Buyer Group’s
sole remedies in connection with the Sale and the sale the subject of the New
Zealand Sale Agreement will be as set out in or arising under this agreement or
the New Zealand Sale Agreement.


 


(b)                                No Seller Group Member has any liability to a Buyer Group Member or
a Transaction Entity:


 


24





















 


(1)                                 in
connection with the Sale, the sale the subject of the New Zealand Sale
Agreement or the matters the subject of this agreement, the New Zealand Sale
Agreement or the Disclosure Materials; or


 


(2)                                 resulting
from or implied by conduct made in the course of communications or negotiations
in respect of the Sale, the sale the subject of the New Zealand Sale Agreement
or the matters the subject of this agreement, the New Zealand Sale Agreement or
the Disclosure Materials,


 


under a Claim unless the Claim may be made under the terms of this
agreement, the New Zealand Sale Agreement or arises out of a statutory right or
other claim which cannot be excluded by contract.


 


(c)                                 The Buyer and New Zealand Buyer must not, and must procure that each
Transaction Entity and other Buyer Group Member does not, make a Claim:


 


(1)                                 which
the Buyer would not be entitled to make under this agreement or which is
otherwise inconsistent with the Buyer’s entitlement to make a Claim under this
agreement;


 


(2)                                 other
than in the case of fraud or dishonesty, against any current or former
director, officer or employee of any Seller Group Member; or


 


(3)                                 against
a Seller Group Member which is not a party to this agreement,


 


and the Buyer acknowledges that to do so would be to seek to circumvent
the parties’ intention expressed in clause 9.14(a).


 


9.15                        Payments
affecting the Purchase Price


 


(a)                                 Any payment made by a Seller Group Member to a Buyer Group Member or
a Transaction Entity in respect of any Claim will be in reduction of the Purchase
Price.


 


(b)                                Any payment (including a reimbursement) made by a Buyer Group Member
or a Transaction Entity to a Seller Group Member in respect of any Claim will
be an increase in the Purchase Price.


 


9.16                        Independent
limitations


 


Each qualification and limitation in this clause 9 is to be construed
independently of the others and is not limited by any other qualification or
limitation.


 


10                                 Procedures for dealing with Claims


 


10.1                        Notice
of Claims


 


(a)                                 (Actual Claims): The Buyer must
promptly notify the Seller if:


 


25





















 


(1)                                 it
decides to make a Claim against the Seller which either alone or together with
other Claims exceeds any applicable thresholds set out in clause 9.4(a); or


 


(2)                                 a
Third Party Claim or Tax Demand is made which the Buyer is aware is reasonably
likely to give rise to a Claim against the Seller.


 


(b)                                (Potential Claims) Without limiting
clause 10.1(a) the Buyer must also promptly notify the Seller if:


 


(1)                                 the
Buyer believes that it would be entitled to make a Claim against the Seller but
for the thresholds set out in clause 9.4(a); or


 


(2)                                 the
Buyer becomes aware of any events, matters or circumstances (including any
potential threatened Third Party Claim or Tax Demand) which it is aware are reasonably
likely to give rise to a Claim against the Seller, whether alone or with any
other Claim or circumstances or with the passage of time).


 


(c)                                 (Details required): The Buyer must
include in a notice given under clause 10.1(a) or (b):


 


(1)                                 all
relevant details (including the amount) then known to a Buyer Group Member or a
Transaction Entity of:


 


(A)                             the Claim
and if applicable, any other Claims which together with the Claim give rise to
any applicable thresholds in clause 9.4(a) being exceeded;


 


(B)                               if
applicable, the Third Party Claim or Tax Demand; and


 


(C)                               the
events, matters or circumstances giving rise to the Claim; and


 


(2)                                 an
extract of:


 


(A)                             any part
of a Demand (including a Tax Demand) that identifies the liability or amount to
which the Claim relates or other evidence of the amount of the Demand to which
the Claim relates; and


 


(B)                               if
available or relevant, any corresponding part of any adjustment sheet or other
explanatory material issued by a Governmental Agency which specifies the basis
for the Demand to which the Claim relates or other evidence of that basis.


 


(d)                                (Demands): The Buyer must provide a
copy of any document referred to in clause 10.1(c)(2) to the Seller as
soon as practicable and in any event within 7 Business Days of receipt of that
document by a Buyer Group Member or a Transaction Entity.


 


(e)                                 (Developments): The Buyer must
also, on an on-going basis and as reasonably practicable, keep the Seller
informed of all developments in relation to the Claim notified under clause
10.1(a) or (b).


 


(f)                                   (Compliance) If the Buyer does not
comply with this clause 10 in all material respects in respect of a Claim, the
Seller is not liable under the


 


26





















 


Claim but only to the extent that the non compliance
has increased the amount of the Claim. 
If the Buyer does not comply with this clause 10, despite any other
provision of this clause 10, the Seller’s sole right, remedy and benefit in
relation to the non-compliance will be the reduction in its liability to the
Buyer under this clause 10.1(f) or 8.7(c).


 


10.2                        Third
Party Claims


 


(a)                                 (No admission): Except as required
by law, the Buyer must not, and must ensure that each Transaction Entity and
Buyer Group Member does not:


 


(1)                                 accept,
compromise or pay;


 


(2)                                 agree
to arbitrate, compromise or settle; or


 


(3)                                 make
any admission or take any action in relation to,


 


a Third Party Claim which is reasonably likely to lead to liability on
the part of the Seller under a Claim without the Seller’s prior written
approval.


 


(b)                                (Defence of Claim): Following
receipt of a notice under clause 10.1(a) in respect of a Claim which
arises from or involves or could potentially involve a Third Party Claim, the
Seller may, by giving written notice to the Buyer, assume the conduct of the
defence of the Third Party Claim.


 


(c)                                 (Seller assumes conduct): If the
Seller advises the Buyer that it wishes to assume the conduct of the defence of
the Third Party Claim:


 


(1)                                 (indemnity) provided that the Seller provides the Buyer, each
Buyer Group Member and each Transaction Entity with an indemnity against all
Loss and Actions which may result from such action on terms acceptable to the
Buyer acting reasonably, the Buyer must promptly take, and must procure that
each Buyer Group Member and Transaction Entity promptly takes, all action
reasonably requested by the Seller to avoid,
contest, compromise or defend the Third Party Claim, including using
professional advisers nominated by the Seller and approved by the Seller for
this purpose;


 


(2)                                 (access) subject to the Seller paying the Buyer its costs and
the costs of each Buyer Group Member and Transaction Entity in complying with
this clause 10.2(c)(2) and to the extent permitted by law and its
contractual obligations, the Buyer must provide, and must procure that each
Buyer Group Member and Transaction Entity provides, the Seller with all
reasonable assistance requested by it in relation to the Third Party Claim,
including providing access to witnesses and documentary or other evidence relevant
to the Third Party Claim, allowing it and its legal advisers to inspect and
take copies of all relevant books, records, files and documents, and providing
it with reasonable access to the personnel, premises and chattels of the
Transaction Entities;


 


(3)                                 (conduct of claim) in conducting any proceedings or actions
in respect of that Third Party Claim, the Seller must:


 


(A)                             act in
good faith;


 


27





















 


(B)                               liaise
with the Buyer in relation to the defence of the Third Party Claim; and


 


(C)                               provide
the Buyer with reasonable access to a copy of any notice, correspondence or
other document relating to the Third Party Claim.


 


(d)                                (Buyer assumes conduct) If the
Seller advises the Buyer that it does not wish to assume the conduct of the
defence of the Third Party Claim, then provided that the Seller provides the
Buyer, each Buyer Group Member and each Transaction Entity with an indemnity
against all Loss and Actions which may result from such action on terms acceptable
to the Buyer acting reasonably, the Buyer must procure that any Buyer Group
Member or Transaction Entity which is conducting any proceedings or actions in
respect of that Third Party Claim:


 


(1)                                 acts
in good faith;


 


(2)                                 liaises
with the Seller in relation to the defence of the Third Party Claim;


 


(3)                                 provides
the Seller with reasonable access to a copy of any notice, correspondence or
other document relating to the Third Party Claim; and


 


(4)                                 acts
reasonably in all the circumstances, including, having regard to the likelihood
of success and the effect of the proceedings or actions on the goodwill or
reputation of the business of the Seller Group.


 


10.3                        Management
of ACCC investigation


 


(a)                                 (No admission): Subject to clause
10.3(f), the Buyer must not, and must ensure that each Transaction Entity and
Buyer Group Member does not:


 


(1)                                 accept,
compromise or pay;


 


(2)                                 agree
to arbitrate, compromise or settle; or


 


(3)                                 make
any admission or take any action in relation to,


 


the ACCC Investigation which is reasonably likely to lead to liability
on the part of the Seller without the Seller’s prior written approval.


 


(b)                                (Actions reasonably requested):
Subject to clause 10.3(f) and provided that the Seller provides the Buyer,
each Buyer Group Member and each Transaction Entity with an indemnity against
all Loss and Actions which may result from such action on terms acceptable to
the Buyer acting reasonably, the Buyer must promptly take, and must procure
that each Buyer Group Member and Transaction Entity promptly takes, all action
reasonably requested by the Seller to avoid,
contest, compromise or defend the ACCC Investigation, including using
professional advisers nominated by the Seller and approved by the Seller for
this purpose.


 


(c)                                 (Assistance): To the extent permitted
by law and provided that the Seller provides the Buyer, each Buyer Group Member
and each Transaction Entity with an indemnity against all Loss and Actions
which may result


 


28





















 


from such action on terms acceptable to the
Buyer acting reasonably, the Buyer must provide, and must procure that each
Buyer Group Member and Transaction Entity provides, the Seller with all
reasonable assistance requested by it in relation to the ACCC Investigation,
including providing access to witnesses and documentary or other evidence
relevant to the ACCC Investigation, allowing it and its legal advisers to
inspect and take copies of all relevant books, records, files and documents,
and providing it with reasonable access to the personnel, premises and chattels
of the Transaction Entities.


 


(d)                                (Access): In taking action to
avoid, contest, compromise or defend the ACCC Investigation, the Seller must
liaise with the Buyer in relation to such action and must provide the Buyer with
reasonable access, upon request, to a copy of any material notice,
correspondence, legal advice or other document relating to the ACCC
Investigation.


 


(e)                                 (Conduct of claim): The Seller
(with the assistance of other members of the Seller Group) will assume the
conduct of the defence of the ACCC Investigation.


 


(f)                                   (Limitation): Nothing in this
clause 10.3 prohibits or restricts the Buyer, or any Buyer Group Member or
Transaction Entity, from making any admission, taking any action or engaging in
any conduct relating to or connected with the ACCC Investigation that is
required by law.  This includes any
admission, action or conduct made in response to a notice issued by the ACCC
under section 155 of the Trade Practices Act 1974
(Cth) that is required by law.


 


10.4                        Management
of Identified Proceedings


 


(a)                                 (No admission): The Buyer must not,
and must ensure that each Transaction Entity and Buyer Group Member does not:


 


(1)                                 accept,
compromise or pay;


 


(2)                                 agree
to arbitrate, compromise or settle; or


 


(3)                                 make
any admission or take any action in relation to,


 


an Identified Proceeding which is reasonably likely to lead to
liability on the part of the Seller without the Seller’s prior written
approval.


 


(b)                                (Actions reasonably requested):
Provided that the Seller provides the Buyer, each Buyer Group Member and each
Transaction Entity with an indemnity against all Loss and Actions which may
result from such action on terms acceptable to the Buyer acting reasonably, the
Buyer must promptly take, and must procure that each Buyer Group Member and
Transaction Entity promptly takes, all action reasonably requested
by the Seller to avoid, contest, compromise or defend the Identified
Proceeding, including using professional advisers nominated by the Seller and
approved by the Seller for this purpose.


 


(c)                                 (Assistance): To the extent
permitted by law and provided that the Seller provides the Buyer, each Buyer
Group Member and each Transaction Entity with an indemnity against all Loss and
Actions which may result from such action on terms acceptable to the Buyer
acting reasonably, the


 


29





















 


Buyer must provide, and must procure that
each Buyer Group Member and Transaction Entity provides, the Seller with all
reasonable assistance requested by it in relation to the Identified Proceeding,
including providing access to witnesses and documentary or other evidence
relevant to the Identified Proceeding, allowing it and its legal advisers to
inspect and take copies of all relevant books, records, files and documents,
and providing it with reasonable access to the personnel, premises and chattels
of the Transaction Entities.


 


(d)                                (Access): In taking action to
avoid, contest, compromise or defend the Identified Proceeding, the Seller must
liaise with the Buyer in relation to such action and must provide the Buyer
with reasonable access, upon request, to a copy of any material notice,
correspondence, legal advice or other document relating to the Identified
Proceeding.


 


(e)                                 (Conduct of Identified Proceeding):
The Seller (with the assistance of other members of the Seller Group) will
assume the conduct of the defence of the Identified Proceeding.


 


10.5                        Tax
Demands


 


(a)                                 (Conduct of a Tax Demand):
Following receipt of a notice under clause 10.1 in respect of a Claim
which arises from or involves a Tax Demand, the Seller must, by written notice
to the Buyer within 10 Business Days of receipt of the notice under clause 10.1
advise the Buyer whether the Seller wishes to assume the conduct of the Tax Demand.


 


(b)                                (Procedure for Seller assuming conduct of a
Tax Demand): If the Seller advises the Buyer that it wishes to
assume the conduct of a Tax Demand then:


 


(1)                                 (No admission): The Buyer must not, and must ensure that each
Transaction Entity and Buyer Group Member does not:


 


(A)                             accept,
compromise or pay,


 


(B)                               agree
to arbitrate, compromise or settle; or


 


(C)                               make
any admission or take any action in relation to,


 


a Tax Demand which may lead to liability on the part of the Seller
under a Claim without the Seller’s prior written approval (which must not be
unreasonably withheld or delayed). However, the Buyer or a Transaction Entity
may pay any Tax or Duty to a Governmental Agency by the due date for payment
without affecting any of its rights under this agreement.


 


(2)                                 (Payment of Tax) the Seller must pay the Buyer, in
Immediately Available Funds and as a reduction in the Purchase Price, so much
of the Tax as is required by the relevant Governmental Agency to be paid while
any action is being taken under this clause 10.4 by the later of:


 


(A)                             2
Business Days before the due date for payment to the Governmental Agency; and


 


30





















 


(B)                               10
Business Days after receipt of the notice given by the Buyer under clause 10.1;


 


(3)                                 (Objection to Tax Demand or Disputing Action) at the Seller’s
written request, the Buyer must take, or procure that the person required to
pay the Tax (Tax Payor) takes such Disputing
Action in a timely manner in relation to the Tax Demand as the Seller may
reasonably require. The Buyer will
not be obliged to take any Disputing Action under this clause 10.5(b)(3) unless
the Seller has complied with clause 10.4(b)(2) and the grounds of
objection are considered to have a reasonable chance of success, set out in an
opinion from a reputable tax practitioner (reasonably acceptable to the Seller)
provided to the Buyer as soon as is reasonably practicable; and


 


(4)                                 (Conduct of proceedings): the Buyer must follow, and must
procure that each Buyer Group Member and Transaction Entity follows, all
reasonable directions of the Seller relating to the conduct of any Disputing
Action referred to in this clause 10.4(b) including using professional
advisers nominated by the Seller. In making any directions under this clause
10.4(b)(4), the Seller must;


 


(A)                             act in
good faith;


 


(B)                               consult
with the Buyer on all matters of significance for the goodwill of the business
of the Buyer or any Transaction Entity;


 


(C)                               consult
with the Buyer on all matters of significance in relation to the conduct,
negotiation and settlement of the Disputing Action;


 


(D)                              at
reasonable and regular intervals provide the Buyer with written reports
concerning the conduct, negotiation, control, defence and/or outcome or
settlement of the Disputing Action and must not settle the Disputing Action
without the Buyer’s written approval (which approval may not be unreasonably
withheld or delayed); and


 


(E)                                provide
the Buyer with reasonable access to a copy of any notice, correspondence of
other document relating to that Disputing Action.


 


(c)                                  (Seller not assuming conduct of a Tax Demand):
If the Seller does not advise the Buyer that it wishes to assume the conduct of
the Tax Demand by written notice to the Buyer within 10 Business Days of
receipt of the notice under clause 10.1, then the Buyer may take such
actions as the Buyer at its sole discretion may decide about the Tax Demand,
including the right to negotiate, defend and/or settle the Tax Demand and to
recover costs incurred as a consequence of the Tax Demand from any person, and
the Seller must pay in Immediately Available Funds and as a reduction in the
Purchase Price the amount notified by the Buyer by the later of:


 


(A)                             2
Business Days before the due date for payment to the Governmental Agency; or


 


31





















 


(B)                               10
Business Days after receipt of the notice given by the Buyer under clause 10.1.


 


(d)                                (Access): The Buyer must provide,
and must procure that each Buyer Group Member and Transaction Entity provides,
the Seller with all reasonable assistance requested by it in relation to the
Tax Demand and the Disputing Action contemplated by clause 10.4(b) including
providing access to witnesses and documentary or other evidence relevant to the
Tax Demand or the Disputing Action, allowing it and its legal advisers to
inspect and take copies of all relevant books, records, files and documents,
and providing it with reasonable access to the personnel, premises and chattels
of the Buyer Group Members and the Transaction Entities.


 


(e)                                   (reimbursement for costs): The Seller must indemnify the
Buyer or any Transaction Entity (as applicable) for all costs and expenses
incurred in taking any action required or requested by the Seller under this
clause 10.4 (with costs and expenses to be paid or reimbursed within 10
Business Days of receipt by the Buyer or a Transaction Entity of an invoice).


 


11                                 Buyer Warranties


 


11.1                        Buyer
Warranties


 


The Buyer gives the Buyer
Warranties in favour of the Seller on the date of this agreement and the Buyer
Warranties will be deemed to be repeated immediately before Completion.


 


11.2                        Independent
Warranties


 


Each of the Buyer Warranties is to be construed independently of the
others and is not limited by reference to any other Buyer Warranty.


 


11.3                        Reliance


 


The Buyer acknowledges that
the Seller has entered into this agreement and
will complete this agreement in reliance on the Buyer Warranties.


 


12                                 Period after Completion


 


12.1                        Appointment
of proxy


 


(a)                                 From Completion until the Sale Shares are registered in the name of
the Buyer, the Seller must:


 


(1)                                 appoint
the Buyer as the sole proxy of the holders of Sale Shares to attend
shareholders’ meetings and exercise the votes attaching to the Sale Shares;


 


(2)                                 not
attend and vote at any shareholders’ meetings;


 


(3)                                 take
all other actions in the capacity of a registered holder of the Sale Shares as
the Buyer directs.


 


32





















 


(b)                                The Buyer indemnifies the Seller against all Loss suffered or
incurred by it arising out of the implementation of any action taken in
accordance with the proxy referred to in clause 12.1(a).


 


12.2                        Access
to records by Seller


 


(a)                                 The Buyer must take reasonable steps to procure that all Business
Records delivered to the Buyer at Completion are preserved in respect of the
period ending on the Completion Date until the
earlier of:


 


(1)                                 6
years from the Completion Date; and


 


(2)                                 any
date required by an applicable law.


 


(b)                                After Completion the Buyer must, on reasonable notice from the
Seller:


 


(1)                                 provide
the Seller and its advisers with reasonable access to the Business Records
referred to in clause 12.2(a) and allow the Seller to inspect and obtain
copies or certified copies of the Business Records at the Seller’s expense; and


 


(2)                                 provide
the Seller and its advisers with reasonable access to the personnel and
premises of the Buyer Group Members and the Transaction Entities,


 


for the purpose of assisting the Seller Group Members to prepare tax
returns, accounts and other financial statements, discharge statutory
obligations or comply with Tax, Duty or other legal requirements or to conduct
legal or arbitration proceedings.


 


(c)                                 The Seller must reimburse the Buyer for its reasonable costs in
retrieving any Business Records and making personnel and premises available
under this clause 12.2.


 


(d)                                The Buyer is not obliged to waive legal professional privilege. The
Seller must comply with any reasonable steps requested by the Buyer to preserve
confidentiality.


 


(e)                                 The Buyer agrees that the Seller may retain copies of any Business
Records which it may require to enable it to comply with any applicable law
after the Completion Date.


 


12.3                        Pre-Completion
tax returns


 


(a)                                 The parties will co-operate in connection with the preparation and
filing of any Tax return or Tax statement of a Transaction Entity with respect
to a period or part period before the Completion Date and any administrative
proceeding involving any such Tax return or Tax statement.


 


(b)                                The Seller will, at its own cost and expense, have the sole conduct
and control of the preparation and filing of all Tax returns, forms or
statements of each Transaction Entity to the extent they relate to any periods
(or part periods) ending on or before the Completion Date (Pre
Completion Returns).


 


(c)                                 The Seller must deliver each Pre Completion Return to the Buyer as
soon as it is available but no later than 20 Business
Days before it is due to be


 


33





















 


filed (taking into account any extension of
time to file the Pre Completion Return which has been properly obtained) for
the Buyer’s review and comment. If the Buyer objects to any items set forth in
the Pre Completion Return it must notify the Seller of the objection as soon as
it is aware of the objection but no later than 10 Business Days before the Pre
Completion Return is due to be filed.


 


(d)                                The Buyer will, at its own cost and expense, have the sole control
of the preparation and filing of all Tax returns, forms or statements of each
Transaction Entity for any period that includes, but does not end on or before
the Completion Date (Straddle Returns).


 


(e)                                 The Buyer must procure that each Straddle Return is prepared in a
manner consistent with the requirements of any Tax Law and must deliver each
Straddle Return to the Seller as soon as it is available but no later than 20 Business Days before it is due to be filed for the Seller’s
review and comment. If the Seller objects to any items set forth in the
Straddle Return it must notify the Buyer of the objection as soon as it is
aware of the objection but no later than 10 Business Days before the Straddle
Return is due to be filed.


 


(f)                                   If the Seller or the Buyer notifies the other of an objection to a
Pre Completion Return or Straddle Return as applicable, the parties must
attempt in good faith to resolve the dispute. If the parties cannot resolve any
such dispute within 10 Business Days of the objection being notified, then:


 


(1)                                 the
parties must appoint an expert agreed to by the parties, or, if they cannot agree
on an expert within a further 5 Business Days, the parties must request the
President for the time being of the Institute of Chartered Accountants in
Australia to appoint an expert, to determine the proper amounts for the items
remaining in dispute;


 


(2)                                 the
expert’s determination is, in the absence of manifest error, final and binding
on the parties and a party must not commence court proceedings or arbitration
in relation to the dispute; and


 


(3)                                 the
expert’s costs and expenses in connection with the dispute resolution
proceedings will be borne by the parties in a manner determined by the expert
(and either party may request that determination) and in the absence of such a
determination will be borne by the Seller and the Buyer equally.


 


The expert appointed under this clause 12.3(f) acts as an expert
and not as an arbitrator. The dispute resolution proceedings under this clause
12.3(f) are not arbitration proceedings under any relevant legislation.


 


(g)                                The Buyer must procure that each Straddle Return and (subject to the
Seller complying with clause 12.3(c)) each Pre Completion Return is filed by
the due date for filing. If a Pre Completion Return or Straddle Return is due
before the date a disputed item is resolved under this clause 12.3, the Buyer must
procure that the return is filed as prepared and must procure that an amended
return, which reflects the resolution or the disputed items


 


34





















 


(either as resolved by agreement or by the
expert), is filed immediately after the disputed items are resolved.


 


(h)                                Except in relation to the preparation of Pre Completion Returns and
Straddle Returns (to which clauses 12.3(b) to 12.3(g) apply) the
parties agree that it is the intention for the Seller to have the right to
determine, control and where appropriate participate in the disclosure
(including manner of disclosure) of any material or information to a
Governmental Agency and any other dealings with the Governmental Agency in
relation to Tax to the extent such disclosure or other dealings is in respect
of any event, act, matter or transaction or amount derived (or deemed to be
derived) or expenditure incurred before, on, or as a result of, Completion (Pre Completion Tax Event).


 


(i)                                    Without limiting clause 12.3(h), from and after Completion the Buyer
agrees that it will, and will procure that each Transaction Entity and Buyer
Group Member will:


 


(1)                                 not
disclose any information or material to a Governmental Agency in relation to a
Pre Completion Tax Event without the prior written consent of the Seller (which
consent will not be unreasonably withheld or delayed), except as required by
law;


 


(2)                                 not
make any admission of liability, or any agreement, compromise or settlement
with a Governmental Agency in relation to a Pre Completion Tax Event without
the prior written consent of the Seller (such approval not to be unreasonably
withheld or delayed); and


 


(3)                                 promptly
provide the Seller with copies of any correspondence with, or material provided
to or by, a Governmental Agency and keep the Seller informed of any oral
discussions with a Governmental Agency in relation to a Pre Completion Tax
Event.


 


(j)                                    If the Buyer provides a notice under clause 10.1 in respect of
a Claim which arises from or involves a Tax Demand, then at all times from the
date of receipt of that notice the provisions of clause 10.3 will apply to that
Tax Demand or the Tax or Pre Completion Tax Event the subject of that Tax
Demand and not this clause 12.3.


 


13                                 Employees


 


(a)                                 Subject to clause 13(b), for the period of 12 months from
Completion, the Buyer will procure that, unless an Employee agrees to a
variation of the Employee’s terms and conditions of employment or an Employee’s
contract of employment expires, each Employee shall remain employed by a
Transaction Entity on substantially the same terms and conditions of employment
that applied to the Employee immediately before Completion.


 


(b)                                For the period of 12 months from Completion, the Buyer will procure
that, a Transaction Entity will only terminate the employment of an Employee in
the following circumstances:


 


35





















 


(1)                                 breach
by the Employee of the Employee’s contract of employment; or


 


(2)                                 misconduct
by the Employee.


 


14                                 Non-records management assets


 


(a)                                 If within 12 months from the date of this agreement the Seller
identifies any assets that are owned by, or in the possession of, the
Transaction Entities and which existed at the time of this agreement that do
not relate to the Business and should have been transferred as part of the Hive
Out, the Seller may nominate any such assets by notice in writing to the Buyer
pursuant to this clause, whereupon:


 


(1)                                 the
Buyer must assign such assets to the Seller or the Seller’s nominee at no cost;


 


(2)                                 the
Seller must pay all reasonable expenses of the Buyer in relation to such
assignment provided that the Seller has approved such expenses before they are
incurred; and


 


(3)                                 the
Seller must reimburse the Buyer, the Transaction Entities and the Buyer’s Head
Company for any Tax Liability arising as a result of the transactions
contemplated by this clause 14(a).


 


(b)                                For the avoidance of doubt, the Seller may nominate assets in
accordance with clause 14(a) on more than one occasion.


 


(c)                                 If there is a dispute between the Buyer and the Seller as to whether
this clause 14 applies to a particular asset, the disputed matter must be
referred for resolution to an independent person agreed by the Seller and the
Buyer and the provisions of sections 3.4, 3.5 and 3.6 of Schedule 4 will
apply in relation to the process for resolution of the dispute except that:


 


(1)                                 if
the Seller and the Buyer cannot agree on an independent person, they must
request that the President of the Institute of Arbitrators and Mediators
nominates an independent person;


 


(2)                                 references
to the Disputed Matters will be to the dispute under this clause 14; and


 


(3)                                 references
to the Adjustment Amount will be disregarded.


 


15                                 Non-moving services assets


 


(a)                                 If within 12 months from the date of this agreement the Buyer
identifies any assets that are owned by, or in the possession of, the Seller
Group and which existed at the time of this agreement and that relate to the
Business and should not have been transferred as part of the Hive Out, the
Buyer may nominate any such assets by notice in writing to the Seller,
whereupon:


 


(1)                                 the
Seller must procure that the appropriate Seller Group Member assign such assets
to the Buyer or the Buyer’s nominee at no cost;


 


36





















 


(2)                                 the
Buyer must pay all reasonable expenses of the Seller in relation to such
assignment provided that the Buyer has approved such expenses before they are
incurred; and


 


(3)                                 the
Seller must reimburse the Buyer, the Transaction Entities and the Buyer’s Head
Company for any Tax Liability arising as a result of the transactions
contemplated by this clause 15(a).


 


(b)                                For the avoidance of doubt, the Buyer may nominate assets in
accordance with clause 15(a) on more than one occasion.


 


(c)                                 If there is a dispute between the Buyer and the Seller as to whether
this clause 15 applies to a particular asset, the disputed matter must be
referred for resolution to an independent person agreed by the Seller and the
Buyer and the provisions of sections 3.4, 3.5 and 3.6 of Schedule 4 will
apply in relation to the process for resolution of the dispute except that:


 


(1)                                 if
the Seller and the Buyer cannot agree on an independent person, they must
request that the President of the Institute of Arbitrators and Mediators nominates
an independent person;


 


(2)                                 references
to the Disputed Matters will be to the dispute under this clause 15; and


 


(3)                                 references
to the Adjustment Amount will be disregarded.


 


16                                 Tasmanian branch


 


(a)                                 The parties acknowledge that a Seller Group Member will, after
Completion, continue to operate the records management business conducted at
Derwent Park, Tasmania as operated prior to Completion (Tasmanian RM
Business).


 


(b)                                The Seller must procure that on a date nominated by the Buyer (such
date to be on or before 1 November 2006) (Relevant
Date) the applicable Seller Group Member


 


(1)                                 gives
to the Sale Entity or its nominee, and the Buyer must procure that the Sale
Entity or its nominee accepts, possession of:


 


(A)                             all boxes
that are being stored by the Seller Group Member pursuant to the Tasmanian RM
Business; and


 


(B)                               any
business records that relate exclusively to the Tasmanian RM Business,


 


at no cost to the Sale Entity;


 


(2)                                 assigns
to the Sale Entity or its nominee, and the Buyer must procure that the Sale
Entity or its nominee accepts an assignment of, all outstanding debts payable
by customers of the Tasmanian RM Business as at the Relevant Date (Accounts Receivable), and the Buyer must procure that the
Sale Entity or its nominee pays to the applicable Seller Group Member the
amount of the Accounts Receivable; and


 


37





















 


(3)                                 assigns
to the Sale Entity or its nominee at no cost to the Sale Entity any assets
owned by the Seller Group Member used wholly or predominantly in the conduct of
the Tasmanian RM Business.


 


(c)                                 If the Buyer does not nominate a date in accordance with clause 16(b) prior
to 1 November 2006 then the relevant date is deemed to be 1 November 2006.


 


(d)                                The Sale Entity must pay all costs related to removing the boxes and
the records referred to in clause 16(b) and delivering them to the Sale
Entity or its nominee.


 


(e)                                 The Buyer must use reasonable endeavours to collect the Accounts
Receivable.  If, within 120 days of the
Relevant Date, any of the Accounts Receivable have not been collected (Uncollected Accounts Receivable), the Buyer may procure that
the Sale Entity or its nominee assigns to the applicable Seller Group Member,
and the Seller Group Member accepts an assignment of, the Uncollected Accounts
Receivable, and the applicable Seller Group Member must pay to the Sale Entity
or its nominee the amount of the Uncollected Accounts Receivable.  Each party must ensure that any amount of
greater than $5,000 received from a customer in payment of an Accounts
Receivable which has been assigned to another party, is remitted to the party
entitled to that Accounts Receivable.


 


(f)                                   The Buyer must indemnify the Seller Group against any claim, action,
damage, loss, liability, cost, charge, expense, outgoing or payment suffered,
paid or incurred by the Seller Group as a result of any failure by the Buyer to
comply with its obligations under this clause 16.


 


(g)                                The Sale Entity is entitled to all revenue and is liable for all
costs in relation to the Tasmanian RM Business from the time at which the Sale
Entity takes possession of the boxes and records in accordance with this clause
16.


 


(h)                                If requested by the Buyer in writing at any time within
6 months of the Sale Entity taking possession of the boxes and records
pursuant to this clause 16, the Seller must use its best endeavours to transfer
to the Sale Entity any customer contracts relating to the Tasmanian RM
Business.


 


17                                 Protection of the Business


 


17.1                        Non-compete


 


During the Restricted Period, the Seller must not engage or be involved
in, and must procure that no Seller Group Member or any of their Associates
engages or is involved in, (either directly or indirectly and whether as a
partner, joint venturer, financier or shareholder in, or employee of or
consultant to, any entity or otherwise) a Protected Business.


 


17.2                        No
solicitation of customers


 


During the Restricted Period, the Seller must not approach, and must
procure that no Seller Group Member or any of their Associates approaches any person whom


 


38





















 


the Seller is aware is a customer of or client of any Transaction
Entity at Completion for the purpose of obtaining their custom in a Protected
Business or persuading that person to cease doing business with the Transaction
Entity or reduce the amount of business which the customer or client would
normally do with the Transaction Entity.


 


17.3                        No
solicitation of employees or agents by Seller


 


During the period of 2 years from Completion, the Seller must not
approach or solicit, and must procure that no Seller Group Member or any of
their Associates approaches or solicits,
any person whom the Seller is aware is an agent or employee of a Transaction
Entity occupying a senior or managerial position or likely, in the opinion of
the Buyer to be:


 


(a)                                 in possession of confidential information relating to the Business;
or


 


(b)                                able to influence the customer relationships or connections of the
Business,


 


for the purpose of recruiting that person. This restriction does not
apply where a person responds to an advertisement published by a Seller Group
Member which is targeted to a wide audience of potential applicants.


 


17.4                        Severability


 


If any part of an undertaking in this clause 17 is unenforceable it may
be severed without affecting the remaining enforceability of that or the other
undertakings. The provisions of this clause 17 have effect together as if they
consisted of separate provisions, each being severable from the other.  Each separate provision results from
combining each undertaking in clauses 17.1 and 17.2, with each period in
clause 17.5(b), and (in the case of clause 17.1) combining each of those
combinations with each area in clause 17.5(c).  If any of those separate provisions is
invalid or unenforceable for any reason, the invalidity or unenforceability
does not affect the validity or enforceability of any of the other separate
provisions or other combinations of the separate provisions of this clause 17.


 


17.5                        Definitions


 


In this agreement:


 


(a)                                 Protected Business
means any business which:


 


(1)                                 is
the same or substantially the same as the Business as carried on at Completion;
and


 


(2)                                 competes
in the Restricted Area with the Business as carried on at Completion.


 


(b)                                Restricted Period
means the period from Completion up to the expiration of:


 


(1)                                 7 years from the Completion Date;


 


(2)                                 5
years from the Completion Date;


 


(3)                                 3
years from the Completion Date;


 


(4)                                 1
year from the Completion Date.


 


39





















 


(c)                                 Restricted Area means:


 


(1)                                 Australia
and New Zealand;


 


(2)                                 Australia;


 


(3)                                 New
South Wales, Victoria and Queensland;


 


(4)                                 New
South Wales and Victoria.


 


(d)                                Retained Business means:


 


(1)                                 the
Tasmanian RM Business, the subject of clause 16;


 


(2)                                 the
records management activities carried on by regional branches of the Seller
Group’s moving services business, which activities:


 


(A)                             are
peripheral and incidental to the moving services business of those branches and
do not make up a higher proportion of the business of those branches as
conducted at the date of this agreement;


 


(B)                               do not
include or result from any advertising, marketing or promotion in relation to
the regional branches as providers of records management services; and


 


(C)                               are not
material in volume;


 


(3)                                 the
records management activity referred to in clause 17.7.


 


17.6                        Acknowledgment


 


The Seller acknowledges that all the prohibitions and restrictions
contained in this clause 17 are reasonable in the circumstances and necessary
to protect the goodwill of the Business as at the Completion Date.


 


17.7                        Franchisees


 


The Buyer acknowledges that franchisees of the Seller Group’s moving
services business may engage in some records management activity that is
peripheral and incidental to those franchisee’s moving services business and
which does not at any time after Completion make up a higher proportion of the
business of those franchisees as conducted at the date of this agreement.  However the Seller must ensure that no Seller
Group Member assists those franchisees in the advertising, promotion or
marketing of them either individually or in aggregate as providers of records
management services.


 


17.8                        Portfolio
Interest


 


Nothing in this clause 17 in any way restricts a Seller Group Member
from holding up to a 10% interest in any entity (as defined in section 64A
of the Corporations Act) provided such holding is only a passive portfolio
holding for investment purposes (where the Seller Group Member does not
exercise an active role in the operational direction or management of the
relevant company), even if that entity carries on a business which competes
with the Business.


 


40





















 


17.9                        Retained
Business


 


Nothing in this clause 17 in any way restricts a Seller Group Member
from:


 


(a)                                 directly or indirectly engaging in or being involved in the Retained
Business in a manner consistent with the Seller Group Member’s engagement or
involvement in the Retained Business as at the date of this agreement;


 


(b)                                directly or indirectly engaging in or being involved or interested
in any business which is based outside of the Restricted Area, even if it has
customers or clients, or potential customers or clients which are resident in
the Restricted Area, provided that no Seller Group Member manipulates this
exemption by deliberately setting up or becoming engaged or involved in a
business outside of the Restricted Area for the primary purpose of
circumventing the restrictions contained in this clause 17;


 


(c)                                 without limiting clause 17.9(b), directly or indirectly engaging in
or being involved or interested in a business based outside of the Restricted
Area through a website which may be accessed by a wide audience of actual or
potential customers or clients (potentially including customers or clients
described in clause 17.2) and providing services to those customers and clients
accessed through that website, provided that no Seller Group Member manipulates
this exemption by operating a website for the primary purpose of circumventing
the restrictions contained in this clause 17.


 


17.10                 Acquisitions


 


Nothing in this clause 17 prohibits a Seller Group Member from
acquiring an interest, directly or indirectly, in a Protected Business if:


 


(a)                                 the acquisition of the interest in the Protected Business occurs as
a result of or in conjunction with an acquisition of an interest, directly or
indirectly, in other assets; and


 


(b)                                the value of the Protected Business is not more than 25% of the
value of the acquisition taken as a whole; and


 


(c)                                 the Seller uses reasonable endeavours to dispose of the Protected
Business or its interest in the Protected Business within 12 months after its
acquisition and provides to the Buyer a reasonable opportunity to make an offer
to acquire the Protected Business before seeking expressions of interest from
other potential purchasers.


 


17.11                 Change
of control – Seller


 


If:


 


(a)                                 a company which is not a Seller Group Member as at the Completion
Date (in this clause 17.11 an acquirer)
acquires a controlling interest in the Seller following the Completion Date;
and


 


(b)                                the acquirer, or any related body corporate of the acquirer which
was not a Seller Group Member as at the Completion Date (acquirer
group


 


41





















 


member), is engaged in any business or activity which competes with the
Business as carried on at Completion (acquirer’s business),


 


then nothing in this clause 17 prohibits the acquirer from acquiring
the controlling interest in the Seller nor prohibits the acquirer or any
acquirer group member from continuing to carry on the acquirer’s business or
other activity.


 


17.12                 No
solicitation of employees or agents


 


During the period of 2 years from Completion, the Buyer must not
approach or solicit, and must procure that no Buyer Group Member or any of
their Associates approaches or solicits,
any person whom the Buyer is aware is an agent or employee of a Seller Group
Member occupying a senior management position or likely, in the opinion of the
Seller to be:


 


(a)                                 in possession of confidential information relating to a Seller Group
Member’s business; or


 


(b)                                able to influence the customer relationships or connections of the
Seller Group Member’s business,


 


for the purpose of recruiting that person. This restriction does not
apply where a person responds to an advertisement published by a Buyer Group
Member which is targeted to a wide audience of potential applicants.


 


18                                 Confidentiality and announcements


 


18.1                        Agreed
announcement


 


A party may not make any other public announcement relating to this
agreement, the New Zealand Sale Agreement or a Transaction Agreement (including
the fact that the parties have executed this agreement, the New Zealand Sale
Agreement or any Transaction Agreement) unless the other party has consented to
the announcement, including the form and content of that disclosure, or unless
the announcement would be permitted under an exemption in clause 18.2(a)(1),
18.2(a)(2) or 18.2(a)(6).


 


18.2                        Confidentiality


 


(a)                                 Each party (recipient) must
keep secret and confidential, and must not divulge or disclose any information
relating to another party or its business (which is disclosed to the recipient
by the other party, its representatives or advisers), this agreement or any
Transaction Agreement or the terms of the Sale other than to the extent that:


 


(1)                                 the
information is in the public domain as at the date of this agreement (or
subsequently becomes in the public domain other than by breach of any
obligation of confidentiality binding on the recipient);


 


(2)                                 the
recipient is required to disclose the information by applicable law or the rules of
any recognised stock exchange on which its shares or the shares of any of its
related bodies corporate are listed


 


42





















 


or
proposed to be listed, provided that the recipient has to the extent possible
having regard to the required timing of the disclosure consulted
with the provider of the information as to the form and content of the
disclosure;


 


(3)                                 the
disclosure is made by the recipient to its financiers or lawyers, accountants,
investment bankers, consultants or other professional advisers to the extent
necessary to enable the recipient to properly perform its obligations under
this agreement or to conduct their business generally, in which case the
recipient must ensure that such persons keep the information secret and
confidential and do not divulge or disclose the information to any other
person;


 


(4)                                 the
disclosure is necessary to seek satisfaction of the condition in clause 2.1(a) or
clause 2.1(e) or for the purposes of clause 10.5(b)(1), provided that the relevant Governmental Agency or other third party is
made aware of the confidential nature of the information and is instructed to
keep the information secret and confidential and does not divulge or disclose
the information to any other person;


 


(5)                                 the
disclosure is required for use in legal proceedings regarding this agreement or
the Sale;


 


(6)                                 the
disclosure, including in any press release or communication to shareholders of
the Buyer’s Guarantor, relates to the ACCC Investigation, including the
operation of the indemnity in clause 8.7 or the operation of the Hive Out
Agreement as they apply to the ACCC Investigation but only to the extent
required to protect the reputation of the Buyer’s Guarantor or to respond to
queries from shareholders of the Buyer’s Guarantor provided however that the
disclosing party consults with the Seller in relation to the form of such
disclosure; or


 


(7)                                 the
party to whom the information relates has consented in writing before the
disclosure.


 


(b)                                Each recipient must ensure that its directors, officers, employees,
agents, representatives and related bodies corporate comply in all respects
with the recipient’s obligations under this clause 18.2.


 


(c)                                 From Completion, the Buyer may disclose confidential information
relating to the business of a Transaction Entity except to the extent that such
information relates to a Seller Group Member or its business.


 


19                                 Duties, costs and expenses


 


19.1                        Duties


 


The Buyer must pay all Duty in respect of the execution, delivery and
performance of this agreement and any agreement or document entered into or
signed under this agreement and each
Transaction Agreement.


 


43





















 


19.2                        Costs
and expenses


 


(a)                                 Unless otherwise provided for in this agreement, each party must pay
its own costs and expenses in respect of the negotiation, preparation,
execution, delivery and registration of this agreement and any other agreement
or document entered into or signed under this agreement and each Transaction
Agreement.


 


(b)                                Any action to be taken by the Buyer or the Seller in performing its
obligations under this agreement must be taken at its own cost and expense
unless otherwise provided in this agreement.


 


20                                 GST


 


20.1                        Definitions


 


Words used in this clause 20 which have a defined meaning in the GST
Law have the same meaning as in the GST Law unless the context indicates
otherwise.


 


20.2                        GST


 


(a)                                 Unless expressly included, the consideration for any supply under or
in connection with this agreement does not include GST.


 


(b)                                To the extent that any supply made under or in connection with this
agreement is a taxable supply (other than any supply made under another agreement
which contains a specific provision dealing with GST), the recipient must pay,
in addition to the consideration provided under this agreement for that supply
(unless it expressly includes GST) an amount (additional amount) equal to the
amount of that consideration (or its GST exclusive market value) multiplied by
the rate at which GST is imposed in respect of the supply. The recipient must
pay the additional amount at the same time as the consideration to which it is
referable.


 


(c)                                 Whenever an adjustment event occurs in relation to any taxable
supply to which clause 20.2(b) applies:


 


(1)                                 the
supplier must determine the amount of the GST component of the consideration
payable; and


 


(2)                                 if
the GST component of that consideration differs from the amount previously
paid, the amount of the difference must be paid by, refunded to or credited to
the recipient, as applicable.


 


20.3                        Tax
invoices


 


The supplier must issue a Tax Invoice to the recipient of a supply to
which clause 20.2 applies no later than 7 days
following payment of the GST inclusive consideration for that supply under that
clause.


 


20.4                        Reimbursements


 


If either party is entitled under this agreement to be reimbursed or
indemnified by the other party for a cost or expense incurred in connection with
this agreement,


 


44





















 


the reimbursement or indemnity payment must not include any GST
component of the cost or expense to the extent that the cost or expense is the
consideration for a creditable acquisition made by the party being reimbursed
or indemnified, or by its representative member.


 


20.5                        Information,
returns and accounting to end GST Group


 


After Completion:


 


(a)                                 the Buyer must ensure that each Transaction Entity gives the
representative member of the Seller’s GST Group on a timely basis, all
information which the Transaction Entity holds which is needed to lodge any GST
return; and


 


(b)                                the Seller must ensure that the representative member of the Seller’s
GST Group:


 


(1)                                 applies
to the Commissioner of Taxation to revoke the approval of the Transaction
Entity as a member of the Seller’s GST Group no later than 21 days after the
commencement of the tax period in which Completion occurs, or such other period
of time specified in the GST Act; and


 


(2)                                 lodges
the GST returns for the final period in which the Transaction Entity was a
member of the Seller’s GST Group and remits all amounts in respect of GST to
the Commissioner of Taxation as and when required by the GST Law.


 


20.6                       Supplies
between former members of the GST Group


 


If:


 


(a)                                  before Completion a Transaction Entity is a member of the Seller’s
GST Group;


 


(b)                                 the Transaction Entity has made a supply to, or has been the
recipient of a supply made by, another member of the Seller’s GST Group;


 


(c)                                  due to Completion the Transaction Entity ceases to be eligible to be
a member of the Seller’s GST Group with effect from a date prior to the
Completion Date;


 


(d)                                 because the supply would have been to another member of the Seller’s
GST Group, the supply would not have been treated as a taxable supply if it had
been made while the Transaction Entity was a member of the Seller’s GST Group;


 


(e)                                  the supply is pursuant to an agreement made before Completion;


 


(f)                                    that agreement does not contain a provision requiring the recipient
to pay to the supplier any amount in respect of GST in addition to the
consideration otherwise payable for the supply; and


 


(g)                                 the consideration negotiated by the parties for the supply was not
calculated to include GST,


 


then after Completion, the Seller (if the recipient of a taxable supply
is not the Transaction Entity) or the Buyer (if the recipient of a taxable
supply is the


 


45





















 


Transaction Entity) must ensure that the recipient of a taxable supply
indemnifies the supplier of a taxable supply for any GST payable in respect of
a supply and pays the amount of that GST in addition to the consideration for
the supply.


 


21                                 Guarantee by Seller’s Guarantor


 


21.1                        Guarantee
and indemnity


 


The Seller’s Guarantor:


 


(a)                                 unconditionally and irrevocably guarantees to the Buyer and New
Zealand Buyer on demand, the due and punctual performance of the Seller’s
obligations under this agreement and the Sale Entity’s obligations under the
New Zealand Sale Agreement; and


 


(b)                                as a separate and additional liability, indemnifies the Buyer and
New Zealand Buyer against all Loss, actions, proceedings and judgments of any
nature, incurred by, brought, made or recovered against the Buyer or New
Zealand Buyer arising from any default or delay in the due and punctual
performance of the Seller’s obligations under this agreement or the Sale Entity’s
obligations under the New Zealand Sale Agreement.


 


21.2                        Extent
of guarantee and indemnity


 


The liability of the Seller’s Guarantor under this clause 21 is not
affected by anything which, but for this clause 21 might operate to release or
exonerate the Seller’s Guarantor in whole or in part from its obligations
including any of the following, whether with or without the consent of the
Seller’s Guarantor:


 


(a)                                 the grant to the Seller, the Seller’s Guarantor or any other person
of any time, waiver or other indulgence, or the discharge or release of the
Seller, the Seller’s Guarantor or any other person from any liability or obligation;


 


(b)                                the Buyer or the Buyer’s Guarantor exercising
or refraining from exercising its rights under any security or any other
rights, powers or remedies against the Seller, the Seller’s Guarantor or any
other person;


 


(c)                                 the amendment, replacement, extinguishment, unenforceability,
failure, loss, release, discharge, abandonment or transfer either in whole or
in part and either with or without consideration, of any security now or in the
future held by the Buyer or the Buyer’s Guarantor from the Seller, the Seller’s
Guarantor or any other person or by the taking of or failure to take any
security;


 


(d)                                the failure or omission or any delay by the Seller or the Buyer to
give notice to the Seller’s Guarantor of any default by the Seller under this
agreement; and


 


(e)                                 any legal limitation, disability, incapacity or other circumstances
related to the Seller, the Seller’s Guarantor or any other person.


 


46





















 


21.3                        Principal
and independent obligation


 


This clause 21 is a principal obligation and is not to be treated as
ancillary or collateral to any other right or obligation and extends to cover
this agreement as amended, varied, supplemented, renewed or replaced.


 


21.4                        Continuing
guarantee and indemnity


 


This clause 21 is a continuing obligation of the Seller’s Guarantor,
despite Completion, and remains in full force and effect for so long as the
Seller has any liability or obligation to the Buyer under this agreement and
until all of those liabilities or obligations have been fully discharged.


 


21.5                        No
withholdings


 


(a)                                 The Seller’s Guarantor must make all payments which become due under
this clause 21, free and clear and without deduction of all present and future
withholdings (including taxes, duties, levies, imposts, deductions and charges
of Australia or any other jurisdiction).


 


(b)                                If the Seller’s Guarantor is compelled by law to deduct any
withholding, then in addition to any payment due under this clause 21, it must
pay to the Buyer or New Zealand Buyer as the case requires such amount as is
necessary to ensure that the net amount received by the Buyer or New Zealand
Buyer as the case requires after withholding equals the amount the Buyer or New
Zealand Buyer as the case requires would otherwise been entitled to if not for
the withholding.


 


21.6                        Currency


 


The Seller’s Guarantor must pay all moneys which it becomes liable to
pay under this clause 21 in the currency in which they are payable under this
agreement and free of any commissions and expenses relating to foreign currency
conversion or any other charges or expenses.


 


21.7                        Seller’s
Guarantor’s Liability


 


The Seller’s Guarantor’s liability in respect of any Claim shall not
exceed the Seller’s liability in respect of that Claim.


 


22                                 Guarantee by Buyer’s Guarantor


 


22.1                        Guarantee
and indemnity


 


The Buyer’s Guarantor:


 


(a)                                 unconditionally and irrevocably guarantees to the Seller on demand,
the due and punctual performance of the Buyer’s obligations under this
agreement; and


 


(b)                                as a separate and additional liability, indemnifies the Seller
against all Loss, actions, proceedings and judgments of any nature, incurred
by, brought, made or recovered against the Seller arising from any default or


 


47





















 


delay in the due and punctual performance of
the Buyer’s obligations under this agreement.


 


22.2                        Extent
of guarantee and indemnity


 


The liability of the Buyer’s Guarantor under this clause 22 is not
affected by anything which, but for this clause 22, might operate to release or
exonerate the Buyer’s Guarantor in whole or in part from its obligations
including any of the following, whether with or without the consent of the
Buyer’s Guarantor:


 


(a)                                 the grant to the Buyer, the Buyer’s Guarantor or any other person of
any time, waiver or other indulgence, or the discharge or release of the Buyer,
the Buyer’s Guarantor or any other person from any liability or obligation;


 


(b)                                the Seller or the Seller’s Guarantor exercising or refraining from
exercising its rights under any security or any other rights, powers or
remedies against the Buyer, the Buyer’s Guarantor or any other person;


 


(c)                                 the amendment, replacement, extinguishment, unenforceability,
failure, loss, release, discharge, abandonment or transfer either in whole or
in part and either with or without consideration, of any security now or in the
future held by the Seller or the Seller’s Guarantor from the Buyer, the Buyer’s
Guarantor or any other person or by the taking of or failure to take any
security;


 


(d)                                the failure or omission or any delay by the Seller or the Buyer to
give notice to the Buyer’s Guarantor of any default by the Buyer or any other
person under this agreement; and


 


(e)                                 any legal limitation, disability, incapacity or other circumstances
related to the Buyer, the Buyer’s Guarantor or any other person.


 


22.3                        Principal
and independent obligation


 


This clause 22 is a principal obligation and is not to be treated as
ancillary or collateral to any other right or obligation and extends to cover
this agreement as amended, varied, supplemented, renewed or replaced.


 


22.4                        Continuing
guarantee and indemnity


 


This clause 22 is a continuing obligation of the Buyer’s Guarantor,
despite Completion, and remains in full force and effect for so long as the
Buyer has any liability or obligation to the Seller under this agreement and
until all of those liabilities or obligations have been fully discharged.


 


22.5                        No
withholdings


 


(a)                                 The Buyer’s Guarantor must make all payments which become due under
this clause 22, free and clear and without deduction of all present and future
withholdings (including taxes, duties, levies, imposts, deductions and charges
of Australia or any other jurisdiction).


 


(b)                                If the Buyer’s Guarantor is compelled by law to deduct any
withholding, then in addition to any payment due under this clause 22, it must
pay to the Seller such amount as is necessary to ensure that the net amount
received


 


48





















 


by the Seller after withholding equals the
amount the Seller would otherwise been entitled to if not for the withholding.


 


22.6                        Currency


 


The Buyer’s Guarantor must pay all moneys which it becomes liable to
pay under this clause 22 in the currency in which they are payable under this
agreement and free of any commissions and expenses relating to foreign currency
conversion or any other charges or expenses.


 


22.7                        Buyer’s
Guarantor’s Liability


 


The Buyer’s Guarantor’s liability in respect of any Claim shall not
exceed the Buyer’s liability in respect of that Claim.


 


23                                 Transitional Services Agreement


 


The Buyer and the Seller agree to use reasonable endeavours to settle:


 


(a)                                 the allocation of fees between Australia and New Zealand in schedule 2;
and


 


(b)                                all of schedule 3,


 


of the Transitional Services Agreements prior to Completion.


 


24                                 General


 


24.1                        Notices


 


(a)                                 Any notice or other communication including any request, demand,
consent or approval, to or by a party to this agreement:


 


(1)                                 must
be in legible writing and in English addressed as shown below:


 


(A)                             if to the
Seller or Seller’s Guarantor:


 


Address:                                              700 Oakmont Lane

Westmont IL 60559

United States


 


Attention:                                        Ralph Ford, General Counsel


 


Copy to:                                                 James Bresingham, VP – Business Development

and

David Farkas, Director of Business Development


 


Facsimile:                                         +1 (630) 468 4706; and


 


Email:                                                               James.Bresingham@SIRVA.com;

Dave.Farkas@SIRVA.com


 


49





















 


(B)                               if to
the Buyer or Buyer’s Guarantor:


 


Address:                                              Iron Mountain

745 Atlantic Avenue

Boston, Massachusetts 02111


 


Attention:                                      General Counsel


 


Facsimile:                                         +1 (617) 451 0409; and


 


Email:                                                              gwatzke@ironmountain.com


 


and copied to:


 


Address:                                              Iron Mountain

745 Atlantic Avenue

Boston, Massachusetts 02111


 


Attention:                                      C. Richard Reese, Chief Executive Officer


 


Facsimile:                                         +1 (617) 357 4604; and


 


Email:                                                              rreese@ironmountain.com


 


and copied to:


 


Minter Ellison


Rialto Towers


525 Collins Street


MELBOURNE   VIC  3000


Facsimile:


+61 3 8608 1000


Attention: Nick Broome


 


or as specified to the sender by any party by notice;


 


(2)                                 where
the sender is a company, must be signed by an officer or under the common seal
of the sender;


 


(3)                                 is
regarded as being given by the sender and received by the addressee:


 


(A)                             if by
delivery in person, when delivered to the addressee;


 


(B)                               if by
post, 10 Business Days from and including the date of postage;


 


(C)                               if by
facsimile transmission, when a facsimile confirmation receipt is received
indicating successful delivery; or


 


(D)                              if sent
by email, when a delivery confirmation report is received by the sender which
records the time that the email was delivered to the addressee’s email address
(unless the sender receives a delivery failure notification indicating that the
email has not been delivered to the addressee),


 


but if the delivery or receipt is on a day which is not a Business Day
or is after 5.00 pm (addressee’s time) it is regarded as received at
9.00 am on the following Business Day; and


 


50





















 


(4)                                 can
be relied on by the addressee and the addressee is not liable to any other
person for any consequences of that reliance if the addressee believes it to be
genuine, correct and authorised by the sender.


 


(b)                                A facsimile transmission is regarded as legible unless the addressee
telephones the sender within 2 hours after the transmission is received or
regarded as received under clause 24.1(a)(3) and informs the sender
that it is not legible.


 


(c)                                 In this clause 24.1, reference to an addressee includes a
reference to an addressee’s officers, agents or employees.


 


24.2                        Governing
law and jurisdiction


 


(a)                                 This agreement is governed by the laws of Victoria.


 


(b)                                Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Victoria.


 


(c)                                 The parties irrevocably waive any objection to the venue of any
legal process on the basis that the process has been brought in an inconvenient
forum.


 


24.3                        Service
of process


 


(a)                                 Without preventing any other mode of service, any document in an
action (including, any writ of summons or other originating process or any
third or other party notice) may be served on any party by being delivered to
or left for that party at its address for service of notices under clause 24.1.


 


(b)                                The Buyer’s Guarantor irrevocably
appoints the Buyer as its agent for the service of
process in Australia in relation to any matter arising out of this agreement.
If the Buyer ceases to be able to act as such or have an address in Australia,
the Buyer’s Guarantor agrees to appoint a new process agent in Australia and
deliver to the Seller within 20 Business Days a copy of a written acceptance of
appointment by the process agent, upon receipt of which the new appointment
becomes effective for the purpose of this agreement and each Transaction
Agreement. The Buyer’s Guarantor must inform the Seller in writing of any
change in the address of its process agent within 20 Business Days of the
change.


 


(c)                                 The Seller’s Guarantor irrevocably
appoints the Seller as its agent
for the service of process in Australia in relation to any matter arising out
of this agreement. If the Seller ceases to be able to act as such or have an
address in Australia, the Seller’s Guarantor agrees to appoint a new process
agent in Australia and deliver to the Buyer within 20 Business Days a copy of a
written acceptance of appointment by the process agent, upon receipt of which
the new appointment becomes effective for the purpose of this agreement and
each Transaction Agreement. The Seller’s Guarantor must inform the Buyer in
writing of any change in the address of its process agent within 20 Business
Days of the change.


 


51





















 


24.4                        Prohibition
and enforceability


 


(a)                                 Any provision of, or the application of any provision of, this
agreement which is prohibited in any jurisdiction is, in that jurisdiction,
ineffective only to the extent of that prohibition.


 


(b)                                Any provision of, or the application of any provision of, this
agreement which is void, illegal or unenforceable in any jurisdiction does not
affect the validity, legality or enforceability of that provision in any other
jurisdiction or of the remaining provisions in that or any other jurisdiction.


 


24.5                        Waivers
and variation


 


(a)                                 A provision of, or a right, discretion or authority created under,
this agreement may not be:


 


(1)                                 waived
except in writing signed by the party granting the waiver; and


 


(2)                                 varied
except in writing signed by the parties.


 


(b)                                A failure or delay in exercise, or partial exercise, of a power,
right, authority, discretion or remedy arising from a breach of, or default under
this agreement does not result in a waiver of that right, power, authority,
discretion or remedy.


 


24.6                        Assignment


 


A party may not assign its rights or obligations under this agreement
without the consent of the other party.


 


24.7                        Further
assurances


 


Subject to clause 19, each party must do all things and execute all
further documents necessary to give full effect to this agreement and use
reasonable endeavours to cause relevant third parties to do the same.


 


24.8                        Approvals
and consent


 


If the doing of any act, matter or thing under this agreement is
dependent on the approval or consent of a party, that party may give
conditionally or unconditionally or withhold its approval or consent in its
absolute discretion, unless this agreement expressly provides otherwise.


 


24.9                        Remedies
cumulative


 


Except as provided in this agreement and permitted by law, the rights,
powers and remedies provided in this agreement are cumulative with and not
exclusive to the rights, powers or remedies provided by law independently of
this agreement.


 


24.10                 Counterparts


 


This agreement may be executed in any number of counterparts (including
by facsimile) which together will constitute one instrument. A party may
execute this agreement by signing any counterpart.


 


52





















 


24.11                 Severability


 


Any provision in this agreement which is invalid or unenforceable in
any jurisdiction is to be read down for the purpose of that jurisdiction, if
possible, so as to be valid and enforceable, and otherwise shall be severed to
the extent of the invalidity or unenforceability, without affecting the
remaining provisions of this agreement or affecting the validity or
enforceability of that provision in any other jurisdiction.


 


24.12                 No
merger


 


The Warranties, Buyer Warranties, undertakings and indemnities in this
agreement will not merge on Completion.


 


24.13                 Entire
Agreement


 


This agreement and the Transaction Agreements embody the entire
agreement between the parties and supersede any prior negotiation, conduct,
arrangement, understanding or agreement, express or implied, with respect to
the subject matter of this agreement other than the Confidentiality Agreement.


 


24.14                 Default
Interest


 


(a)                                 If a party fails to pay any amount payable under this agreement on
the due date for payment, that party must pay interest on the amount unpaid at
the higher of the Interest Rate plus 3% per annum or the rate (if any)
fixed or payable under any judgement or other thing into which the liability to
pay the amount becomes merged.


 


(b)                                The interest payable under clause 24.14(a):


 


(1)                                 accrues
from day to day from and including the due date for payment up to the actual
date of payment, before and, as an additional and independent obligation, after
any judgment or other thing into which the liability to pay the amount becomes
merged; and


 


(2)                                 may
be capitalised by the person to whom it is payable at monthly intervals.


 


24.15                 Benefits
held on trust


 


(a)                                 The Seller holds the benefit of each indemnity, promise and
obligation in this agreement expressed to be for the benefit of a director,
officer or employee of a Seller Group Member, or for the benefit of a Seller
Group Member which is not a party to this agreement, on trust for that
director, officer, employee or Seller Group Member.


 


(b)                                The Buyer and New Zealand Buyer holds the benefit of each indemnity,
promise and obligation in this agreement expressed to be for the benefit of a
director, officer or employee of a Buyer Group Member or Transaction Entity, or
for the benefit of a Buyer Group Member or Transaction Entity which is not a
party to this agreement, on trust for that director, officer, employee, Buyer
Group Member or Transaction Entity.


 


53





















 


(c)                                 Except where an indemnity, promise or obligation is expressly stated
to be for the benefit of a third party, no person (including an Employee) other
than the Buyer, New Zealand Buyer and the Seller,
has or is intended to have any right, power or remedy or derives or is intended
to derive any benefit under this agreement.


 


24.16                 Contra
proferentem excluded


 


No term or condition of this agreement will
be construed adversely to a party solely on the ground that the party was
responsible for the preparation of this agreement or that provision.


 


24.17                Attorneys


 


Each of the attorneys executing this agreement states that the attorney
has no notice of the revocation of the power of attorney appointing that
attorney.


 


24.18                No
withholdings


 


(a)                                 The Buyer and the Seller must make all payments which become due
under this agreement, free and clear and without deduction of all present and
future withholdings (including taxes, duties, levies, imposts, deductions and
charges of Australia or any other jurisdiction).


 


(b)                                If the Buyer or the Seller is compelled by law to deduct any
withholding, then in addition to any payment due under this agreement, it must
pay to the other party (the recipient) such amount as is necessary to ensure
that the net amount received by the recipient after withholding equals the
amount the recipient would otherwise been entitled to if not for the
withholding.


 


24.19                Gross-up
for Tax


 


If the Buyer, the New Zealand Buyer, the Transaction Entities or the
Buyer’s Head Company are subject to Tax in respect of any payment received under
clause 8.4, 8.7, 14(a)(3) or 15(a)(3), the amount of the payment shall be
increased by such additional amount as is necessary to ensure that the net
amount received and retained by any of the Buyer, the New Zealand Buyer, the
Transaction Entities and the Buyer’s Head Company (after taking account of all
deductions or withholdings or Tax) is equal to the amount which it would have
received and retained had the payment in question not been subject to any
deductions or withholdings or Tax.


 


54










 













 


Executed as an agreement:


 


	
  Signed by

  	
   

  	
   

  
	
  SIRVA (Asia Pacific) Pty
  Limited

  	
   

  	
   

  
	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Michael Filipovic

  	
   

  	
  /s/ Allen Chan

  
	
  Secretary/Director

  	
   

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Michael Filipovic

  	
   

  	
  Allen Chan

  
	
  Name (please print)

  	
   

  	
  Name (please print)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed by

  	
   

  	
   

  
	
  SIRVA Worldwide, Inc.

  	
   

  	
   

  
	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ James Bresingham

  	
   

  	
  /s/ David A. Farkas

  
	
  Authorised person

  	
   

  	
  Authorised person

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  James Bresingham

  	
   

  	
  David A. Farkas

  
	
  Name (please print)

  	
   

  	
  Name (please print)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed by

  	
   

  	
   

  
	
  IM Australia Holdings Pty Ltd

  	
   

  	
   

  
	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Robert G. Miller

  	
   

  	
  /s/ N. Broome

  
	
  Attorney

  	
   

  	
  Witness

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Robert G. Miller

  	
   

  	
  N. Broome

  
	
  Name (please print)

  	
   

  	
  Name (please print)

  



 


108





















 


	
  Signed by

  	
   

  	
   

  
	
  IM New Zealand Holdings ULC

  	
   

  	
   

  
	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Robert G. Miller

  	
   

  	
  /s/ Ben Liu

  
	
  Attorney

  	
   

  	
  Witness

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Robert G. Miller

  	
   

  	
  Ben Liu

  
	
  Name (please print)

  	
   

  	
  Name (please print)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed by

  	
   

  	
   

  
	
  Iron Mountain Incorporated

  	
   

  	
   

  
	
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Robert G. Miller

  	
   

  	
  /s/ Ben Liu

  
	
  Authorised representative

  	
   

  	
  Witness

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Robert G. Miller

  	
   

  	
  Ben Liu

  
	
  Name (please print)

  	
   

  	
  Name (please print)

  



 


109