906

NEW ZEALAND GAZETTE

No. 37

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 Waikato 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, Waikato 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 Waikato SOE.

The purchase price shall be paid according to clause 7 of the Draft Waikato 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), Waikato 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,

Waikato SOE or ECNZ (as the case may be) will pay to ECNZ or Waikato 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 South Island SOE,

being settled at the same time;

(b) ECNZ and Waikato 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 Waikato 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 Waikato SOE; and

(ii) the stamp duty payable in connection with the transfer.

6. Transfer of Material Agreements

ECNZ and Waikato SOE are to arrange for the novation or assignment of the following agreements with effect from the settlement time:

(a) An agreement originally between the Crown and various local bodies and drainage boards dated 24 March 1977.

(b) An agreement between ECNZ and Contact Energy Limited dated 19 December 1996.

(c) The Operation and Maintenance Management Services Agreement between ECNZ and Mandala Nusantara Limited dated 30 September 1997.

(d) The Consent and Agreement between ECNZ and Credit Suisse First Boston dated 30 September 1997.

(e) The Connection, Use of System and Licence Agreement between ECNZ and Tuaropaki Power Company Limited relating to the Mokai Facility, dated 24 December 1997.

(f) The Licence Agreement between ECNZ and Transpower New Zealand Limited dated 24 December 1997.

(g) The Operation and Maintenance Management Services Agreement between ECNZ and Tuaropaki Power Company Limited dated 24 December 1997.

(h) The Overriding Project Agreement between ECNZ and Tuaropaki Power Company Limited dated 24 December 1997.

(i) The Investment Agreement between ECNZ and Tuaropaki Power Company Limited dated 24 December 1997.