Variation Agreement Auckland Transport Veolia Transport Auckland Limited Veolia Transport Australasia Pty Limited 3376265.9 Table of contents Parties ......................................................................................................................................................1 Background ..............................................................................................................................................1 Agreements..............................................................................................................................................1 1 Definitions and interpretation............................................................................................................1 2 Adoption of the Revised PSA ...........................................................................................................2 3 Establishment Plan...........................................................................................................................2 4 Refreshment of Bond and Guarantee ..............................................................................................2 5 Warranties ........................................................................................................................................3 6 General.............................................................................................................................................3 Execution..................................................................................................................................................4 KENSINGTON SWAN | VARIATION AGREEMENT 3376265.9 Variation Agreement dated 2 February 2012 Parties 1 Auckland Transport (‘AT’) 2 Veolia Transport Auckland Limited (‘Operator’) 3 Veolia Transport Australasia Pty Limited (‘Parent’) Background A The parties are each parties to the Existing PSA which relates to the passenger rail services in Auckland. B The parties wish to vary the terms of the Existing PSA in a number of material respects. C The parties have determined that they will adopt an amended form of passenger services agreement (‘Revised PSA’) which will reflect their respective rights, obligations, duties, liabilities and roles from the Variation Commencement Date. D The parties wish to record the terms and conditions upon which the Revised PSA will become effective. Agreements 1 Definitions and interpretation 1.1 Interpretation In this agreement (including the Background) unless the context requires otherwise: ‘Establishment Plan’ means the Establishment Plan which is required to be prepared and agreed before the Variation Commencement Date and which is set out in Schedule 3 of the Revised PSA; ‘Existing PSA’ means the passenger services agreement made between the parties dated 19 March 2004 as amended from time to time prior to the date of this Agreement; ‘Revised PSA’ means the form of the passenger services agreement (including all schedules and appendices) attached as the Annexure, the terms and conditions of which the parties have negotiated and wish to govern their relationship in lieu of those in the Existing PSA from the Variation Commencement Date; and ‘Variation Commencement Date’ means the 1st day of July 2012 or such other date as may be agreed in writing by the parties. 1.2 General construction In this agreement unless the context requires otherwise: a terms defined in the Revised PSA have the same meaning in this Agreement; KENSINGTON SWAN | VARIATION AGREEMENT 1 3376265.9 b the terms and conditions of the Existing PSA continue to be fully applicable to the parties in respect of their respective rights, obligations, duties and responsibilities as they fell due or were to be asserted for or in respect of the period ending on the Variation Commencement Date; c headings appear as a matter of convenience and shall not affect the construction of this agreement; d the singular includes the plural and vice versa and words importing any gender include other genders; and e each reference to any party shall include its, his or her successors and assigns, legal representatives, executors and administrators. 2 Adoption of the Revised PSA 2.1 Subject to the terms and conditions of this Agreement, the parties acknowledge and agree that with effect from the Variation Commencement Date the terms and conditions of the Revised PSA govern their relationship and the Revised PSA is adopted in place of the Existing PSA 2.2 The parties jointly and severally agree: a Adoption of the Revised PSA is without prejudice to any rights or obligations that any of them might against the others or either of them under the terms and conditions of the Existing PSA. b Any default or failure to perform or comply with any obligation, duty or responsibility under the terms and conditions of the Existing PSA will continue to be a failure or default under the Revised PSA unless cured or remedied in the meantime. 3 Establishment Plan 3.1 The parties acknowledge the Varied PSA requires them to have agreed certain matters and completed certain tasks set out in the Establishment Plan before the Variation Commencement Date. Accordingly the parties agree that they will each use their best endeavours to reach agreement on all matters and complete all tasks set out in the Establishment Plan by the Variation Commencement Date. If any of those matters is not agreed by the Variation Commencement Date then the default provisions in the Establishment Plan shall apply in relation to such matters that are not agreed. 4 Refreshment of Bond and Guarantee 4.1 Each of the Parent and the Operator will by the Variation Commencement Date provide AT with a new Performance Bond and new Guarantee in accordance with the terms of the Revised PSA to replace those already given by the Parent and the Guarantor respectively unless prior to the Variation Commencement Date the Parent and the Guarantor each confirm, in writing, that the terms of the existing Performance Bond and the Guarantee continue to apply to the Existing PSA and will secure their respective obligations as contemplated by the Revised PSA. KENSINGTON SWAN | VARIATION AGREEMENT 2 3376265.9 5 Warranties 5.1 The parties represent and warrant to each other that everything required to be done (including the obtaining of any necessary consents and the passing of any necessary resolutions) to: a enable it lawfully to enter into, exercise its rights and perform and comply with its obligations under this Agreement, the Revised PSA and the Relevant Agreements; b ensure that those obligations are legal, valid, binding and enforceable in accordance with their respective terms; and c make this Agreement, the Revised PSA and the Relevant Agreements admissible in evidence in the courts of New Zealand. has been duly done. 5.2 The Operator and the Parent jointly and severally warrant and represent to AT that they have the required skills, experience and resources to perform the Services during the Term, which Services may entail assisting AT with the deployment of the new EMU fleet and the commissioning of the EMU depot. 6 General 6.1 Announcements and Confidentiality The parties agree that clause 22.3 and 22.4 of the Revised PSA apply in relation to announcements to Notices and other communications required to be given and confidentiality. 6.2 Notices The parties agree that clause 22.4 of the Revised PSA applies to Notices and other communications required to be given under this Agreement. 6.3 Conflict If there is any conflict between the provisions of the Existing PSA and the Revised PSA then the provisions of the Revised PSA will prevail as from the Variation Commencement Date except in relation to any dispute or issue which relates to the performance, obligations, responsibilities or liabilities of the parties prior to the Variation Commencement Date. 6.4 Further assurances The parties agree to do all things and execute all documents as reasonably required for the purposes of effecting the validity of the Revised PSA. 6.5 Governing Law This Agreement is governed by and to be construed in accordance with New Zealand law and the parties irrevocably submit to the non-exclusive jurisdiction of the courts in New Zealand. 6.6 Counterparts This Agreement may be executed in any number of counterparts (including facsimile counterparts), each of which shall be deemed to be an original and which together constitute one and the same instrument KENSINGTON SWAN | VARIATION AGREEMENT 3 3376265.9 Execution Signed for Auckland Transport by: _____________________________ David Warburton, Chief Executive _____________________________ Mark Ford, Chairman Signed for Veolia Transport Auckland Limited by: _____________________________ Graham Sibery, Managing Director Signed for Veolia Transport Australasia Pty Limited by: _____________________________ Edward Thomas, Deputy Chief Executive KENSINGTON SWAN | VARIATION AGREEMENT 4 3376265.9 ANNEXURE Revised Passenger Services Agreement KENSINGTON SWAN | VARIATION AGREEMENT 5 3376265.9 Passenger Services Agreement relating to passenger rail services in Auckland Auckland Transport AT and Veolia Transport Auckland Limited Operator and Veolia Transport Australasia Pty Limited, ACN 079 303 816 Parent i Passenger Services Agreement 3374222.113 Table of Contents 1 Representations, warranties and acknowledgements................................................................4 2 Term .................................................................................................................................................4