25 MARCH NEW ZEALAND GAZETTE

the parties, to raise any queries it may have as a result of that review with ECNZ. If any dispute arises in connection with those queries between ECNZ and [South Island SOE], the matter will be resolved under clause 17.

(e) The settlement accounts will be deemed final and binding on the parties on the date that all queries (if any) arising from [South Island SOE’s] review under paragraph (d) are settled or resolved.

(f) Each party agrees that, as a priority, it will use all reasonable endeavours to complete, without undue delay, all work and documentation required of it in connection with the preparation of the settlement accounts and further agrees that it will give effect to the close-off procedures developed, or to be developed, in accordance with the transition rules within the required timeframes.

4.3 Deficit in Asset value
If the settlement accounts disclose that the book value of the net assets is less than the estimated consideration, ECNZ will pay an amount equivalent to that deficit to [South Island SOE] under clause 7.2 as an adjustment to the purchase price for the assets and the assumed obligations.

4.4 Excess in Asset value
If the settlement accounts disclose that the book value of the net assets is more than the estimated consideration, [South Island SOE] will pay an amount equivalent to that excess 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 [South Island SOE].

The purchase price shall be paid according to clause 7 of the Draft South Island 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), [South Island 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, [South Island SOE] or ECNZ (as the case may be) will pay to ECNZ or [South Island 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 Huntly SOE; and
   (ii) ECNZ and Waikato SOE,
   being settled at the same time;

(b) ECNZ and South Island 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 South Island SOE equal to the aggregate of:
(i) the consideration for the transfer less the amount of the establishment funding to be provided by ECNZ to South Island SOE; and
(ii) the stamp duty payable in connection with the transfer.

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

(a) A participants’ agreement between ECNZ and Commonwealth Scientific and Industrial Research Organisation, Energy Research and Development Corporation, Strategic Industry Research Foundation Limited, The Broken Hill Proprietary Company Limited, Pacific Power, ETSA Corporation, Electricity Corporation, South East Queensland Electricity Corporation and Ceramic Fuel Cells Limited dated 2 July 1992.

(b) The joint venture agreement between ECNZ and Industrial Research Limited dated 19 April 1994.

(c) The Intellectual Property Management and Patent Licensing Agreement letter from American Superconductor