Toll Holdings Ltd - variation - s.87B undertaking

The fifth variation to the undertaking given by Toll Holdings Ltd to the ACCC on 11 March 2006.

The fifth variation relates to Toll’s planned restructure of its group businesses by way of scheme of arrangement to create a new listed entity and trust.

The restructure is proposed by Toll to involve the creation of a new listed company, Asciano Limited, and the transfer of the assets, entities and/or businesses that comprise Toll's infrastructure assets, including Pacific National, to this company.

The ACCC's decision to consent to a waiver of Toll's obligations is given effect through the following documents:

• a variation to Toll's undertakings
• a new undertaking from Asciano Limited, and
• new undertakings from the directors of Toll and Asciano.

Copies of those undertakings can be found on the ACCC’s website.

The Toll undertakings, when amended by the variation (the revised Toll undertakings), provide that, if the restructure of the Toll business occurs, and if certain pre-conditions are met, then Toll is relieved of its obligation to divest 50 per cent of PN, the Vehicle Transport Business and the PrixCar Interest. If the restructure does not occur, or the pre-conditions are not met, Toll's obligations will not be waived and it must still carry out the divestments.

If the restructure occurs, Toll's obligations to make available the Starter's Kit of East West Rail Assets and to implement non-discrimination regimes in relation to Pacific National's Intermodal Business and Patrick's container terminals will be transferred to Asciano.

Further, Toll will become subject to new obligations to ensure the separation of Toll and Asciano. Specifically, Toll will be prohibited from:

• having an interest, either through shares or assets, in Asciano
• appointing a director who personally has, or who has a relative who has, any interest in Asciano
• entering into joint ventures with Asciano
• seconding or sharing management or employees with Asciano
• employing or otherwise engaging any person who is or has been a senior manager of Pacific National's intermodal business
• paying to Asciano any performance or incentive fees, other than payments arising in the ordinary course of business which are also available to other like customers, and
• contracting or dealing with Asciano other than on arm's length commercial terms.