900 NEW ZEALAND GAZETTE No. 37

to ECNZ under clause 7.2 as an adjustment to the purchase price for the assets and the assumed obligations.

4.6 No revaluation
ECNZ and its subsidiaries will not revalue in their books any asset that is to be or may be transferred to [Huntly SOE].

The purchase price shall be paid according to clause 7 of the Draft Huntly Agreement as set out below:

7.1 Payment on Settlement
On the settlement date, immediately after ECNZ has complied with clauses 6.3 and 6.4 (but subject to clause 6.5), [Huntly SOE] will, to perfect settlement, pay to ECNZ the estimated consideration, such payment to be made by direct credit or such other method of payment as the parties may agree.

7.2 Final payment following adjustment
Within the later of:

(a) 5 business days after the date on which the settlement accounts become final and binding on the parties pursuant to clause 4.2 (e); and

(b) the completion of all work and documentation required to be done by each party to give effect to the close-off procedures developed, or to be developed, in accordance with the transition rules,

[Huntly SOE] or ECNZ (as the case may be) will pay to ECNZ or [Huntly SOE] (as the case may be) the amount of any adjustment to the purchase price for the assets and the assumed obligations required in terms of clause 4.3 or 4.4 together with interest on such amount calculated from the settlement date up to the due date for payment at the bill rate, such payment to be made by bank cheque or such other method of payment as the parties may agree. The parties agree that they will use all reasonable endeavours to have this final payment made by no later than the date which is 30 business days after the date on which settlement takes place.

7.3 No deductions
All payments required to be made pursuant to this agreement will be made:

(a) free of any restriction or condition; and

(b) free and clear of and (except to the extent required by law) without any deduction or withholding for or on account of tax or on any other account, whether by way of set-off, counterclaim or otherwise.

7.4 Default interest

(a) If any party does not pay any sum payable under this agreement as and when due and in the manner provided, it will on demand by the payee from time to time pay interest on that unpaid sum (“default interest”).

(b) Default interest will accrue on any unpaid sum from day to day from the due date up to the date of actual payment, before and after judgment, at a rate equal to the bill rate plus 5 percent (of the unpaid amount) per annum.

(c) Interest on overdue payments will be capitalised daily.

7.5 Full and final discharge
The parties agree that, provided the settlement accounts have become final and binding on the parties pursuant to clause 4.2 (e), neither party will be entitled to review, and seek an adjustment in respect of, the amount of the final payment due under clause 7.2 after that payment has been made, to the intent and with the effect that that payment will constitute a full and final discharge of the parties’ respective settlement obligations and their obligations under clause 7.2. Nothing in this clause 7.5 will limit in any way the provisions of clause 5.3.

5. Conditions precedent to Settlement
   Settlement of the transfer shall be conditional upon:

(a) Agreements for sale and purchase between:
(i) ECNZ and Waikato SOE; and
(ii) ECNZ and South Island SOE,

being settled at the same time;

(b) ECNZ and Huntly SOE each receiving shareholder approval to the major transaction to which these terms and conditions relate; and

(c) the Crown subscribing for, or agreeing to subscribe for, share capital in Huntly SOE equal to the aggregate of:
(i) the consideration for the transfer less the amount of the loan to be made by ECNZ to Huntly SOE; and
(ii) the stamp duty payable in connection with the transfer.

6. Transfer of Material Agreements
   ECNZ and Huntly SOE are to arrange for the novation or assignment of the following agreements with effect from the settlement time:

(a) The Agreement for the Supply of Coal between Solid Energy New Zealand Limited and ECNZ dated 19 March 1997.

(b) The Agreement for the Supply of Coal between O’Reilly’s Opencast Limited and ECNZ dated 7 April 1997.

(c) The Agreement for the Supply of Coal between Massey Coal Company Limited and ECNZ dated 22 January 1998.

(d) The Agreement for the Sale and Purchase of Gas between Contact Energy Limited and ECNZ dated 16 January 1996.

(e) The Agreement in Relation to the Construction and Operation of Cogeneration Plant between ECNZ and New Zealand Co-operative Dairy Company Limited dated 8 August 1994.

(f) The Memorandum of Transfer and Grant of Easement in Gross from New Zealand Co-operative Dairy Company Limited in favour of ECNZ.

(g) The Agreement in Relation to the Sale of an Electricity Transmission Line and the Provision of Electricity Transmission Services between ECNZ and Waipa Power Limited dated 30 September 1996.

(h) The Transmission Services Agreement between ECNZ and Natural Gas Corporation of New Zealand Limited dated 3 November 1994.

(i) The Agreement as to an Option to Purchase, and the Sale and Purchase of Meremere A Power Station between ECNZ and Nga Pua Waitanga (Meremere) Limited dated 30 May 1997.

(j) The Heads of Agreement between ECNZ and Tainui Corporation Limited dated 30 May 1997.

(k) An Agreement in Relation to the Construction and Operation of Cogeneration Plant at Kinleith between ECNZ, Kinleith Cogeneration Limited and Carter Holt Harvey dated 31 May 1995.

(l) ECNZ Contract KCP-01 between ECNZ and Rolls Royce Industrial Power (New Zealand) Limited relating to the construction, installation/erection, testing and commissioning of the Kinleith cogeneration plant, dated 4 July 1995.