KiwiRail Holdings Limited Vesting Order 2012

2012/347

Coat of Arms of New Zealand

KiwiRail Holdings Limited Vesting Order 2012

Jerry Mateparae, Governor-General

Order in Council

At Wellington this 3rd day of December 2012

Present:
His Excellency the Governor-General in Council

Pursuant to section 6 of the New Zealand Railways Corporation Restructuring Act 1990, His Excellency the Governor-General, acting on the advice and with the consent of the Executive Council, makes the following order.

Order

1 Title
  • This order is the KiwiRail Holdings Limited Vesting Order 2012.

2 Commencement
  • This order comes into force on 31 December 2012.

3 Interpretation
  • (1) In this order, unless the context otherwise requires,—

    company means KiwiRail Holdings Limited, being a Crown transferee company within the meaning of section 2(1) of the Act

    vesting date means 31 December 2012.

    (2) Terms and expressions used and not defined in this order, but defined in the Act, have the meanings given by the Act.

4 Vesting of railways assets and railways liabilities in company
  • (1) The railways assets and railways liabilities to which this clause applies, being assets and liabilities set out in a list prepared pursuant to section 6 of the Act by the Minister of Finance and the Minister for State Owned Enterprises dated 19 November 2012, vest in the company on the vesting date.

    (2) This clause applies to all railways assets and railways liabilities immediately before the vesting date that are specified in Part 1 and Part 2 of the Schedule.

    (3) However, this clause does not apply to any of the railways assets and railways liabilities that are specified in Part 3 of the Schedule.


Schedule
Railways assets and railways liabilities

cl 4

Interpretation
  • 1 In this schedule, unless the context otherwise requires,—

    agreement has the same meaning as in section 29(1) of the State-Owned Enterprises Act 1986, and includes a deed poll

    obligations includes obligations that arise, or are to be performed, before, on, or after the vesting date

    Port Nicholson Block Settlement Trust deed has the same meaning as in the Port Nicholson Block (Taranaki Whānui ki Te Upoko o Te Ika) Claims Settlement Act 2009

    railways infrastructure asset means any fixture, improvement, building, or structure, including (without limitation) any rail traffic control equipment, communications equipment, electrical traction equipment, cable, pipe, bridge, tunnel, formation, track, and associated works, situated on, under, or above the surface of any railways land, but excludes any interest in land

    railways land means any land that is a railways asset within the meaning of section 2(1) of the Act

    rights includes rights that arise before, on, or after the vesting date

    subsidiary or associated company means any of—

    • (a) Clifford Bay Limited:

    • (b) Foundry Trade Group Limited:

    • (c) KiwiRail Investments Limited:

    • (d) KiwiRail Limited:

    • (e) Metrobox Auckland Limited:

    • (f) Ontrack Infrastructure Limited:

    • (g) Tranz Rail Limited

    Wellington railway station and social hall building land means the land with that description in the provisions schedule of the Port Nicholson Block Settlement Trust deed.

  • 2 Any item in Part 1 or Part 2 of this schedule does not affect the generality of any other item.

Part 1
Railways assets and railways liabilities of Corporation that vest in company

Railways assets and railways liabilities
  • 3 Any railways assets and railways liabilities of the Corporation, including (without limitation) those used, or capable of being used, for the purposes of conducting any of the operations or other activities of the Corporation or of any subsidiary or associated company, including providing or arranging 1 or more of the following:

    • (a) rail freight services:

    • (b) urban and long-distance passenger rail services:

    • (c) passenger, road, and rail ferry services (including berthing and port services) between the North Island and South Island:

    • (d) design, construction, and maintenance of railways infrastructure, railway vehicles, and the rail network:

    • (e) provision of track access and related services (including rail network control services).

Personal property
  • 4 Any personal property of the Corporation.

  • 5 Any shares in, or interest in the shares of, any subsidiary or associated company that are held by the Corporation.

  • 6 Any cash or cash equivalent held by the Corporation and any interest in any cash or cash equivalent held on behalf of the Corporation.

Assets and liabilities relating to railways land
  • 7 Any rights and obligations of the Corporation under any licence to occupy, lease, easement, concession, or other interest in relation to any railways land (whether granted to or in favour of the Corporation or by or on behalf of the Corporation).

Rights and obligations relating to railways infrastructure assets
  • 9 Any railways infrastructure assets of the Corporation.

  • 10 Any rights and obligations of the Corporation in respect of any railways infrastructure assets.

  • 11 Any rights and obligations of the Corporation under any agreement for the acquisition, construction, remediation, or repair of any railways infrastructure asset or proposed railways infrastructure asset.

Rights and obligations relating to Wellington railway station and social hall building land and associated buildings
  • 12 In relation to the lease of the Wellington railway station building between Her Majesty the Queen in right of New Zealand acting by and through the New Zealand Railways Corporation (as lessor) and the New Zealand Railways Corporation (as lessee) dated 29 July 2009, any—

    • (a) rights and obligations of the Corporation as lessee under the lease; and

    • (b) rights of the Corporation under that lease as lessor to receive any payments under that lease.

  • 13 Any rights of the Corporation to receive any payments from any person under any licence to occupy, lease, easement, concession, or other interest in relation to the Wellington railway station and social hall building land or any assets on that land.

  • 14 Any rights of the Corporation to receive any consideration in relation to the sale of any part of the Wellington railway station and social hall building land or any assets on that land.

  • 15 Any excluded railway assets as defined under clause 4.11 of the provisions schedule of the Port Nicholson Block Settlement Trust deed.

Rights and obligations generally
  • 17 Any rights and obligations of the Corporation under or in relation to any proceedings.

  • 18 Any rights and obligations of the Corporation under any agreement for the provision of goods or services by, on behalf of, or to the Corporation, including (without limitation) for the leasing or licensing of any vehicles, plant, or equipment (including (without limitation) ships and railways vehicles).

  • 19 Any rights and obligations of the Corporation under any agreement with 1 or more of the following:

    • (a) the Crown:

    • (b) any Crown entity within the meaning of section 7 of the Crown Entities Act 2004:

    • (c) any local authority (within the meaning of section 5(1) of the Local Government Act 2002):

    • (d) any council-controlled organisation (within the meaning of section 5(1) of the Local Government Act 2002):

    • (e) any rail participant (within the meaning of section 4(1) of the Railways Act 2005):

    • (f) any subsidiary or associated company.

  • 20 Any rights and obligations of the Corporation under 1 or more of the following:

    • (a) any bank accounts held in the name of the Corporation:

    • (b) any lending or other facility agreement for financial accommodation to or by the Corporation, including (without limitation)—

      • (i) the facility agreement dated 15 September 2010 between the Corporation, KiwiRail Limited, and the Commonwealth Bank of Australia; and

      • (ii) the facility agreement dated 13 February 2012 between the Corporation and the Bank of New Zealand; and

      • (iii) the master finance lease dated 15 May 2012 between the Corporation and Westpac Banking Corporation; and

      • (iv) the loan facility agreement dated 5 December 2005 between the Corporation and the Crown:

    • (c) any derivative transaction entered into by or on behalf of the Corporation, including (without limitation) those entered under or in connection with—

      • (i) the ISDA master agreement dated 22 November 2007 between the Corporation and ANZ National Bank Limited; and

      • (ii) the ISDA master agreement dated 12 May 2008 between the Corporation and the Bank of New Zealand; and

      • (iii) the ISDA master agreement dated 10 December 2007 between the Corporation and the Commonwealth Bank of Australia; and

      • (iv) the ISDA master agreement dated 17 March 2008 between the Corporation and Westpac Banking Corporation:

    • (d) any contract of insurance entered into by or on behalf of, or for the benefit of, the Corporation:

    • (e) any bond, letter of credit, guarantee, indemnity, or other assurance given in favour of the Corporation or given by or on behalf of the Corporation.

  • 21 Any rights and obligations of the Corporation under any funding or output agreement with the Crown in connection with 1 or more of the following:

    • (a) the funding of the Corporation's operations and other activities:

    • (b) the development of the Auckland rail transport network:

    • (c) the electrification of the Auckland rail transport network:

    • (d) the upgrade of the Wellington metropolitan rail transport network.

  • 22 Any rights and obligations of the Corporation under—

    • (a) the Agreement for Sale and Purchase of Shares in KiwiRail Holdings Limited entered into by the Crown and the Corporation on or about 6 October 2008; and

    • (b) the Deed of Assignment entered into by the Crown and the Corporation on or about 6 October 2008.

  • 23 Any rights and obligations of the Corporation under—

    • (a) the National Rail Access Agreement entered into by the Crown and Toll NZ Consolidated Limited on or about 30 June 2004; and

    • (b) the Network Transfer Agreement entered into by the Crown and the Corporation on or about 31 August 2004, and the related deed of novation.

Rights and obligations relating to employees and directors
  • 24 Any rights and obligations of the Corporation under any contract of service with, and any award or agreement relating to, employees or former employees of the Corporation, including any rights and obligations that have accrued as at the vesting date.

  • 25 Any rights and obligations of the Corporation under any agreement between the Corporation and the New Zealand Railways Staff Welfare Trust or the trustees of that trust.

  • 26 Any rights and obligations of the Corporation in relation to any act or omission prior to the vesting date by any person in his or her capacity as a director or former director of the Corporation.

Other assets and liabilities
  • 27 Any assets held by the Corporation on behalf of any other person, and any liabilities of the Corporation in respect of those assets.

  • 28 The Corporation's rights and obligations under any debts owed to it or any debts owed by it.

  • 29 Any intellectual property and other proprietary rights and interests (whether or not protectable by registration and in whatever form) of the Corporation, including (without limitation)—

    • (a) rights and interests in any patents, designs, copyright, know-how, trade secrets, domain names, trade marks, trade names, brands, logos, business names, and other devices; and

    • (b) rights in the names KiwiRail or Ontrack, and any associated devices and colours.

  • 30 Any correspondence, files, notes, records, plans, drawings, reports, and other information, in whatever format, relating to railways assets and railways liabilities (including (without limitation) agreements, records relating to employees and former employees, leases, concessions, other legal documents, and copies of any documents or records of the Corporation that it is required under an enactment to retain in its possession) that are held by, or are under the control of, the Corporation.

Part 2
Railways assets and railways liabilities of the Crown that vest in company

  • 31 Any rights and obligations of the Crown under any licence to occupy, lease, easement, concession, or other interest in relation to any railways land (whether granted in favour of the Crown or granted by or on behalf of the Crown).

  • 32 Any railways infrastructure assets of the Crown.

Part 3
Railways assets and railways liabilities that do not vest in company

  • 33 Any fee simple estate in any railways land (whether such estate is held by the Corporation or by the Crown), including any documents of title to the fee simple estate.

  • 34 Any rights and obligations of the Corporation or of the Crown in respect of—

    • (a) the lease dated 20 December 1991 granted under section 12 of the Act and under any variation or amendment to that lease; and

    • (b) any lease granted under section 12 of the Act that is to take effect on the vesting date; and

    • (c) the Agreement to Record Transfer of Accounting Responsibility for Rail Land entered into by the Crown and the Corporation on or about 30 June 2006.

  • 35 Any rights and obligations of the Corporation or of the Crown as lessor under the lease of the Wellington railway station building between Her Majesty the Queen in right of New Zealand acting by and through the New Zealand Railways Corporation (as lessor) and the New Zealand Railways Corporation (as lessee) dated 29 July 2009, other than those described in items 12 to 15 of Part 1 of this schedule.

  • 36 Any rights and obligations of the Corporation or of the Crown in relation to the Wellington railway station and social hall building land, other than those described in items 12 to 15 of Part 1 of this schedule.

  • 37 The buildings on the Wellington railway station and social hall building land known as the Wellington railway station building and the social hall building.

  • 38 Any documents or records of the Corporation that the Corporation is required under an enactment to retain in its possession.

  • 39 Any rights and obligations of the Corporation under a contract of insurance entered into by the Corporation to the extent that those rights or obligations relate to an asset or a liability of the Corporation that is not to be vested in the company pursuant to this order.

  • 40 Any rights and obligations of the Corporation under or in relation to any proceedings to the extent that those proceedings relate to an asset or a liability of the Corporation that is not to be vested in the company pursuant to this order.

  • 41 Any rights and obligations of the Crown arising under any enactment.

  • 42 Any rights and obligations of the Crown arising under any agreement relating to the Treaty of Waitangi.

  • 43 Any railways assets and railways liabilities of the Crown not listed in Part 2 of this schedule.

Michael Webster,  
for Clerk of the Executive Council.


Explanatory note

This note is not part of the order, but is intended to indicate its general effect.

This order, which comes into force on 31 December 2012, vests the railways assets and railways liabilities specified in the Schedule in KiwiRail Holdings Limited pursuant to the New Zealand Railways Corporation Restructuring Act 1990 (the Act).

KiwiRail Holdings Limited is a company formed and registered in accordance with section 4 of the Act. The date on which the railways assets and railways liabilities vest in KiwiRail Holdings Limited is 31 December 2012. In accordance with the Act, the railways assets and railways liabilities specified in the Schedule are the railways assets and railways liabilities specified in a list prepared by the Minister of Finance and the Minister for State Owned Enterprises.

In general terms, the railways assets and railways liabilities that vest in KiwiRail Holdings Limited are the assets and liabilities of the New Zealand Railways Corporation, excluding any fee simple estate in land. Certain assets and liabilities of the Crown held or incurred for railways purposes are also vested, including buildings, tracks, and works held for railways purposes.

The Crown's rights and obligations arising under any enactment or any Treaty of Waitangi settlement do not vest in KiwiRail Holdings Limited. Those rights and obligations remain with the Crown.


Issued under the authority of the Acts and Regulations Publication Act 1989.

Date of notification in Gazette: 6 December 2012.

This order is administered by the Treasury.