SECTION 8: TRANSFER OF ASSETS (GENERAL)
8.1 DEFINITIONS AND INTERPRETATION
8.1.1 Words or phrases already defined
Words or phrases defined in Sections 4, 5, 6 and 7 have the same meaning when used in this Section, except where expressly provided otherwise.
8.1.2 Additional definitions
In this Section:
Adjusted Transfer Value means, in respect of any Settlement Property, that amount which equals the Transfer Value previously agreed or determined in accordance with Sections 4, 5, 6 or 7 (as the case may be), less an amount attributable to the relevant damage or destruction referred to in a notice given by Te Runanga under clause 8.5.1;
Cap Value means, in relation to any Potential Property or Settlement Property, the Transfer Value finally agreed or determined in accordance with Section 4, 5, 6 or 7 (as the case may be), or (if applicable) the Adjusted Transfer Value, but:
(a) in the case of Farms, less any positive component of that Transfer Value or (if applicable) Adjusted Transfer Value, attributable to Capital Expenditure under paragraph 10.2.1 of Attachment 6.3;
(b) in the case of Available Forestry Assets, less any positive component of the Transfer Value or (if applicable) Adjusted Transfer Value, attributable to any action carried out in accordance with a proposal under clause 7.7.1(b);
(c) in the case of the High Country Station, less any positive component of the Transfer Value or (if applicable) Adjusted Transfer Value attributable to Capital Expenditure under paragraph 10.2.1 of Attachment 6.3 as applied and amended by clause 9.13.15; and
(d) in the case of Development Properties, less any positive component of the Transfer Value attributable to a variation to the Plans and Specifications consented to by Te Runanga under paragraph 2.4 of Attachment 5.10.
Development Properties means the Properties (as defined in Section 5) to which paragraph 2 of Attachment 5.10 applies;
High Country Station means the Station Areas (as defined in Section 9);
Potential Property means each:
(a) Potential Property (as defined in Section 5);
(b) Potential Farm; and
(c) Potential Forestry Asset;
Rejected Property means:
(a) each Property (as defined in Section 5 but not Section 4), Farm and Available Crown Forestry Asset which does not become a Potential Property; and
(b) each Potential Property which does not become a Settlement Property,
which has not been sold by the relevant Vendor Agency in accordance with clause 8.4;
Reselected Property means each:
(a) Rejected Property specified in a notice under clause 8.6.1; or
(b) Rejected Property specified in a notice under clause 8.5.1 to which clause 8.5.8 or clause 8.5.9 applies;
to sell means, in relation to any Rejected Property:
(a) to transfer the estate and interest in that property owned by the relevant Vendor Agency;
(b) to grant a lease or other right of exclusive possession of that property, the term of which, including rights of renewal or extension contained in the lease or other right or otherwise granted to the relevant lessee or grantee is, or could be, for 50 years or longer; or
(c) to enter into an agreement to transfer within (a) above, or an agreement to grant a lease or other right of exclusive possession within (b) above,
and other grammatical forms of that verb have a corresponding meaning;
Settlement Property means each:
(a) Property (as defined in Section 4 but not Section 5);
(b) Settlement Property (as defined in Section 5);
(c) Settlement Farm; and
(d) Settlement Forestry Asset;
Substitute Value means, in respect of any Rejected Property:
(a) the Cap Value, where the Transfer Value for the Rejected Property was agreed or determined in accordance with Section 5, 6 or 7 (as the case may be);
(b) where (a) does not apply, the assessment of the market value of the Rejected Property set out in a valuation report prepared for the Vendor Agency under Section 5, 6 or 7 (as the case may be); or
(c) in the case of an Available Crown Forestry Asset which was not initially selected under clause 7.3.3, the market value attributed to that asset set out in an independent registered valuer’s report which complies with Attachment 7.3 or Attachment 7.4 (as the case may be) and which is enclosed with the notice given under clause 8.5.1 or clause 8.6.1;
Terms of Transfer means each Terms of Transfer (as defined in Sections 4, 5 and 6) and Attachment 7.6;
Vendor Agency means:
(a) the Crown;
(b) each Vendor Agency defined in Section 4 and Section 5; and
(c) Landcorp.
8.1.3 Crown’s obligations
Where in this Section, an obligation is imposed on the Crown, the Crown must either satisfy that obligation itself or procure the relevant Vendor Agency to satisfy it.
8.1.4 References to Crown
References to the Crown are deemed, in respect of each Rejected Property and where the context permits, to be references to the Vendor Agency which owns the Rejected Property at the date of this Deed.
8.2 BACKGROUND
Section 4 sets out the process for the valuation and transfer of assets in the Ngäi Tahu Claim Area which must be transferred to Te Runanga. Sections 5, 6 and 7 set out the process for the valuation, selection and transfer of assets from three pools of, respectively, commercial properties, farms owned by Landcorp and forestry assets in the Ngäi Tahu Claim Area.
This Section contains provisions which apply generally to those four Sections and to certain matters relating to the High Country Station.
8.3 LIMIT ON SELECTION
8.3.1 Maximum expenditure
Te Runanga may only give a notice under clause 5.5 (Property selection clause), clause 6.6 (Farm selection clause) or clause 7.3.11 (Forestry selection clause) if:
(A + B + C) is less than $250,000,000 where:
A = the sum (expressed in dollars) of all Cap Values for Settlement Properties which, at the time the question arises, have been transferred to Te Runanga;
B = the sum (expressed in dollars) of all Cap Values for Settlement Properties which, at the time the question arises, the Crown is obliged to transfer to Te Runanga; and
C = the Cap Value for the High Country Station.
8.3.2 Contents of selection notices
Any notice given by Te Runanga under clause 5.5, clause 6.6 or clause 7.3.11:
(a) may only specify Potential Properties, the sum of the Cap Values of which, when added to the sum of A and B and C (as defined in clause 8.3.1), does not exceed $250,000,000; and
(b) must specify Te Runanga’s calculation of A, B and C (as defined in clause 8.3.1) and the Transfer Value and Cap Value of each Potential Property specified in that notice.
8.3.3 Correcting invalid notices
If the Crown believes Te Runanga has given a notice which does not comply with clause 8.3.1 or clause 8.3.2, it may give Te Runanga written notice of that belief within 5 Business Days of receipt by the Crown of such notice. If the Crown gives such a notice the parties shall meet to discuss the issue and if Te Runanga agrees with the Crown that the notice is invalid it may, within a further 2 Business Days, issue a revised notice which does comply with clauses 8.3.1 and 8.3.2.
8.3.4 Disputed notices
If the Crown and Te Runanga are unable to reach agreement under clause 8.3.3 within the period of 5 Business Days commencing on the date of receipt by Te Runanga of the Crown’s notice given under clause 8.3.3, the issue shall be determined by an independent expert, and clauses 8.5.2, 8.5.3 and 8.5.6, with all necessary modifications, shall apply. The expert shall be required to give a determination within 5 Business Days of his or her appointment and that determination shall be final and binding on the parties except in the case of manifest error.
8.4 RESTRICTIONS ON CROWN'S RIGHT TO TRANSFER REJECTED PROPERTIES
8.4.1 Te Runanga’s notice
A Vendor Agency shall not sell any Rejected Property (other than an Available Crown Forestry Asset) otherwise than in accordance with this clause 8.4. This clause 8.4 does not apply to any sale of an Available Crown Forestry Asset.
8.4.2 Sale with Te Runanga’s consent
Where neither of clauses 8.4.3 or 8.4.4 applies to a Rejected Property, a Vendor Agency may sell the Rejected Property only with the prior written consent of Te Runanga. Consent shall be deemed to have been withheld if Te Runanga does not confirm whether or not it consents within 10 Business Days of a request.
8.4.3 Sale after Final Selection Date
Any Vendor Agency may sell any Rejected Property after the Final Selection Date.
8.4.4 Sale on compliance with transfer obligations
Any Vendor Agency may sell any Rejected Property once it has, in respect of all Potential Properties or Settlement Properties which it owns, first deposited a certificate of title and a signed registrable memorandum of transfer in favour of Te Runanga or Te Runanga’s nominee (or, if the Vendor Agency is not the Crown, in the favour of the Crown, in which case the Crown must also comply with this clause before a Rejected Property may be sold) with a properly appointed escrow agent who is irrevocably instructed, and has, in writing, undertaken to Te Runanga and the Crown, to release those documents only for the purpose of giving effect to:
(a) a rejection of a Potential Property in accordance with this Deed;
(b) a transfer of a Settlement Property to Te Runanga; or
(c) a cancellation of the agreement for sale and purchase in respect of a Settlement Property.
If, in respect of any such transfer, Te Runanga intends its nominee to be the transferee, Te Runanga may notify the Crown of that fact and the Crown shall, by no later than the earlier of 15 Business Days from the date of its receipt of such notification and the Completion Date, deposit a replacement transfer with the escrow agent to give effect to that nomination.
8.5 FURTHER SELECTION
8.5.1 Te Runanga’s notice
Any notice given by Te Runanga under clause 8.3.1 may also state:
(a) that, in the opinion of Te Runanga, any one or more Settlement Properties referred to in the notice and specified by Te Runanga, has, or have, been destroyed or damaged so that, in accordance with the relevant Terms of Transfer, there would be a reduction in the purchase price;
(b) Te Runanga’s assessment of the amount of each such reduction; and
(c) if applicable, the details of a Rejected Property or Rejected Properties which Te Runanga wishes to acquire in accordance with this clause 8.5 and, in the case of a Rejected Property which is an Available Crown Forestry Asset and which was not initially selected under clause 7.3.3, details of the definition of the Rejected Property in accordance with clause 7.3.3.
8.5.2 Agreed appointment of expert
No later than the next Business Day after the expiration of the period of 5 Business Days commencing on the Final Selection Date, each Vendor Agency which owns a Settlement Property specified under clause 8.5.1 and Te Runanga must appoint jointly a suitably qualified and independent person to fulfil the role of expert under this clause 8.5.
8.5.3 Independent appointment of expert
If any relevant Vendor Agency and Te Runanga have been unable to appoint jointly such person as expert by that date, the President of the New Zealand Institute of Valuers (or his or her nominee), on request by either party, must appoint such person within a further 5 Business Days.
8.5.4 Agreed reduction
Each relevant Vendor Agency and Te Runanga must, during the period of 15 Business Days commencing on the Final Selection Date, negotiate to attempt to agree the Adjusted Transfer Value in respect of each Settlement Property specified in a notice under clause 8.5.1.
8.5.5 Determined reduction
OTS or (as the case may be) the President of the New Zealand Institute of Valuers (or his or her nominee), must immediately request the independent person appointed under clause 8.5.3 or clause 8.5.4 to give his or her determination of the Adjusted Transfer Value for each Rejected Property in respect of which there was no agreement under clause 8.5.4, by the date referred to in that clause. OTS (or the President or his or her nominee) shall request the person to make his or her determination within 10 Business Days of the request.
8.5.6 Basis of appointment
Such person shall only be properly appointed if he or she has confirmed to Te Runanga and the relevant Vendor Agency, in writing, that he or she shall abide by the requirements of this clause 8.5 and, for the avoidance of doubt, such person shall be acting as an expert and not as an arbitrator and his or her determination shall be final and binding on the parties.
8.5.7 Reduced purchase price
In respect of each Settlement Property specified in a notice under clause 8.5.1, the Adjusted Transfer Value as agreed or determined under this clause 8.5 shall be the purchase price for the Settlement Property, subject to the Terms of Transfer, but paragraph 4 of the relevant Terms of Transfer (or Section 8 of the Terms of Transfer in the case of a Settlement Forestry Asset) shall not apply to the relevant destruction or damage.
8.5.8 Reselection of all specified properties
If the aggregate of the reductions in the original Transfer Values agreed or determined under this clause 8.5 is equal to, or more than, the aggregate of the Substitute Values of the Rejected Properties specified under clause 8.5.1, then each such Rejected Property shall be a Reselected Property and clauses 8.6.3, 8.6.4 and 8.6.5 shall apply, as the case may be, from the date all such reductions were agreed or determined.
8.5.9 Reselection of some of specified properties
If the aggregate of the reductions in the original Transfer Values agreed or determined under this clause 8.5 is:
(a) less than the aggregate of all the Substitute Values of the Rejected Properties specified under clause 8.5.1; but
(b) more than any one, or the aggregate of two or more of, such Substitute Values,
Te Runanga may, no later than 2 Business Days after the date on which all such reductions are agreed or determined, give written notice to the relevant Vendor Agency and the Crown specifying a Rejected Property or Rejected Properties specified under clause 8.5.1, the aggregate of the Substitute Values of which is not more than the aggregate of such reductions. Each such Rejected Property will be deemed to be a Reselected Property and clauses 8.6.3, 8.6.4 and 8.6.5 shall apply, as the case may be, from the date of receipt by the Crown of that notice.
8.5.10 Early appointment of Expert
The Crown or Te Runanga may, at any time after the Legislation Date, require, by notice to the other of them, the appointment of an expert in anticipation of a possible future reference to an expert under clause 8.3.4, clause 8.5.2 or clause 8.5.3. In that event, the provisions of clause 8.5.2 and clause 8.5.3 relating to the appointment of an expert shall apply with all necessary modifications, and any reference under clause 8.5.5 which occurs within 6 months after the appointment of an expert under this clause 8.5.10 shall be a reference to the expert appointed under this clause 8.5.10 unless, before the date of the reference, either party has given notice to the other withdrawing its approval of that person as an expert. Each party agrees it shall not give such a notice unless the party believes, on reasonable grounds, that either:
(a) circumstances have changed to such an extent since the time of the appointment of the person appointed under this clause 8.5.11; or
(b) new information has become available since that time which indicates,
that such person is no longer the appropriate person to be the expert.
SECTION 8: TRANSFER OF ASSETS (GENERAL)
8.1 DEFINITIONS AND INTERPRETATION
8.4 RESTRICTIONS ON CROWN'S RIGHT TO TRANSFER REJECTED PROPERTIES
8.6 SETTLEMENT PROPERTIES NOT TRANSFERRED
8.9 OTHER PROVISIONS APPLYING TO ALL SETTLEMENT PROPERTIES
8.10 OTHER PROVISIONS APPLYING TO TRANSFER PROCESS
