18 DECEMBER NEW ZEALAND GAZETTE

the part of the Grantee herein contained or implied shall not expire upon any assignment but shall continue and be enforceable in the event of any default of any future assignee to comply with the terms of this Forestry Right.

5.4 If the Grantee or its Holding Company is a limited liability company which is not listed on any stock exchange, then:

(a) Any change or rearrangement in the beneficial ownership of the shareholding of the Grantee or its Holding Company; or

(b) Any alteration in the Memorandum or Articles of Association or Constitution of the Grantee or its Holding Company; or

(c) Any other agreement, covenant, arrangement or grant of power or authority;

which has the effect of altering the effective control of the Grantee or any Holding Company of the Grantee shall be deemed a proposed total assignment hereunder and shall require the consent of the Grantor accordingly under clause 5.1.

5.5 In the event that this Forestry Right is assigned in whole the Grantor agrees for the benefit of any person who continues to be liable to the Grantor under clause 5.3:

(a) That it will give to such person copies of any notices that the Grantor gives to the incoming or new licensee under clause 5 hereof at the same time as any such notices are given; and

(b) The Grantor will not exercise any of the remedies conferred upon it by clause 5 without first giving to such person fourteen (14) days’ notice of its intention to exercise any of such remedies to enable any such person (if it so elects) to take steps to remedy the alleged default within that period.

5.6 Notwithstanding the foregoing provisions of this clause 5, the assignment of the whole of the Grantee’s interest in this Forestry Right to Regional Forests Limited so long as it is at the time of the assignment in the majority ownership and control of the Grantee shall be permitted subject to the conditions set out in clauses 5.2 (b) to (e) inclusive and (g).

6. Default

6.1 If either party shall be in breach of any provision hereof expressed or implied the other party may serve on that party a notice in writing requiring that party to remedy such breach. Upon service of any such notice the party in default shall remedy the breach within three calendar months from the date of service of the notice (excluding the day of service) and in respect time shall be of the essence. If the party in default does not rectify the breach within the time allowed then without prejudice to any other remedy available to the other party:

(a) The other party may cancel this Forestry Right; or

(b) Where the default relates to work which the party in default is required to carry out, the other party may perform the work and recover the costs thereof from the party in default; or

(c) Claim damages in respect of the loss caused by the default.

6.2 Notwithstanding clause 6.1, the Grantee irrevocably appoints the Grantor, in the event of default by the Grantee resulting in cancellation of this Forestry Right by the Grantor, as the attorney of the Grantee to execute all such documents and do all such things as may be required on the part of the Grantee in order to register a forfeiture or surrender of this Forestry Right.

7. Mediation and Arbitration

7.1 The parties shall use their best endeavours to resolve any disputes or differences between them concerning this Forestry Right (“Unresolved Issues”) by consultation and negotiation. However, either party may instigate a mediation process as follows:

(a) Either party may by written notice (“the Mediation Notice”) require that any Unresolved Issues between the parties be referred to mediation;

(b) Following reference to mediation, the parties shall continue to seek resolution of the Unresolved Issues by consultation and negotiation;

(c) If the Unresolved Issues remain unresolved after fourteen (14) days from the date of the Mediation Notice, the parties shall within a further seven (7) days agree upon a suitable person to act as mediator. If the parties cannot agree upon a mediator within such time, the parties will require the President for the time being of the Auckland District Law Society to nominate a suitable person to act as mediator PROVIDED THAT either party at any time may resolve that the matter be referred to arbitration in accordance with clause 7.2 in which case the mediation process will be deemed to have terminated;

(d) The parties shall within seven (7) days of agreement or nomination appoint the agreed or nominated person as mediator to consult with the parties and assist the parties to reach agreement in respect of the Unresolved Issues;

(e) The mediator shall, in consultation with the parties, settle the procedures to be adopted during the mediation. The decision of the mediator on any issue relating to procedural matters shall be binding on the parties and, in particular the mediator shall be entitled to call any meeting between the parties at such times and places as the mediator considers appropriate;

(f) After having given not less than 72 hours written notice to the parties of his or her intention to do so the mediator shall have the right to obtain an independent consultant’s report on any aspect relevant to the Unresolved Issues;

(g) The parties shall use their best endeavours to attend all meetings called by the mediator and at such meetings shall conduct their negotiations in good faith and shall use their best endeavours to reach an agreed solution which is acceptable to both parties;

(h) All costs incurred in respect of the mediation, including the mediator’s fees and the costs of any consultant’s reports, shall be borne equally by the parties, who shall be jointly and severally liable to the mediator in respect thereof. This clause 7.1 confers benefits or rights on the mediator and such benefits and rights shall, for the purposes of section 4 of the Contracts (Privity) Act 1982, be enforceable.

7.2 All disputes and differences between the parties concerning this Forestry Right shall be submitted to the arbitration of a single arbitrator if the parties can agree upon one but otherwise to two arbitrators (one to be appointed by each party) and their umpire (who shall be appointed prior to their entering upon the arbitration) such arbitration to be carried out in accordance with the provisions of the Arbitration Act 1996 or any subsisting statutory provisions relating to arbitration provided that no person who has been appointed mediator pursuant to the provisions of clause 7.1 shall be appointed arbitrator.