Ngai Tahu Settlement
Doug Graham Treaty of Waitangi NegotiationsATTACHMENT 9.3
DEED OF GRANT OF RIGHT OF FIRST REFUSAL -
MILFORD AIRPORT
Clause 9.3)
Date:
BETWEEN
(1) TE RUNANGA O NGAI TAHU (Te
Runanga)
(2) HER MAJESTY THE QUEEN in right of New Zealand,
acting by and through the Minister of Transport (the Crown
Owner)
BACKGROUND
A Te Runanga and the Crown are parties to a Deed of Settlement
dated [ ] 1997.
B Pursuant to the Deed of Settlement, the Crown agreed to enter
into a deed granting to Te Runanga a right of first refusal over the Milford
Airport Assets.
C This Deed is entered into in satisfaction of the obligation
of the Crown referred to in Recital B.
NOW THEREFORE the parties agree as
follows:
1 DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Deed, unless the context requires otherwise:
Acceptance Date means the date
specified in a Disposal Offer, by which Te Runanga shall accept the Disposal
Offer;
Actual Indication Date means the
date on which Te Runanga gives or is deemed to have given a notice under
clause 5.2.2;
Assessor means an independent third
party appointed for the purposes of clause 12;
Benchmark Offer means
(a) the Disposal Offer; or
(b) any written offer subsequently made by Te Runanga to
acquire the Milford Airport Assets in the period referred to in clause
7.1 (or, where Te Runanga has made more than one such written offer in that
period, the last such written offer),
whichever is on More Favourable Terms;
Business Day means a day (other
than Saturday or Sunday) on which registered banks are open for normal banking
business in Wellington and Christchurch but shall exclude any day in the period
commencing 25 December in any year and ending on 5 January in the following year
and shall be deemed to commence at 9.00 am and to terminate at 5.00
pm;
Change of Control, in relation to
the New Crown Owner, means any act or omission by a Crown Body which has the
result that a person other than a Crown Body has Effective Control of the New
Crown Owner, but does not include a Permitted Change of Control. For the
avoidance of doubt, any change in the political party or parties constituting
the New Zealand Government shall not amount to a Change of Control of any Crown
Owner;
Crown Body means the Crown (whether
acting through a Minister or otherwise) or a Crown Entity (as defined in the
Public Finance Act 1989) or a State Enterprise (as defined in the State-Owned
Enterprises Act 1986) or any company which is wholly-owned by a Crown Entity or
State Enterprise;
Deed of Settlement means the deed
referred to in Recital A;
Dispose means sell, transfer or
otherwise dispose, and Disposal has a corresponding meaning. For the
avoidance of doubt, the granting of a lease or concession giving the exclusive
right to occupy the land on which Milford Airport is situated and operate the
airport business for a term of more than 5 years (including rights or renewal or
extension) will be treated as Disposal unless it is granted to the Crown Owner
or to another Crown Body which has complied with clause 2.2.1;
Disposal Notice means a notice of
the Crown Owner's intention to Dispose of the Milford Airport Assets given under
clause 4;
Disposal Offer means an offer to
sell the Milford Airport Assets to Te Runanga complying with clause
5.1;
Due Diligence Process means a
process pursuant to which the Crown Owner facilitates access to, and inspection
of, information about the Milford Airport Assets and documentation relating to
its activities connected with the Milford Airport Assets by prospective
purchasers of the Milford Airport Assets;
Effective Control, in relation to
the New Crown Owner means:
(a) the legal and beneficial, or beneficial, ownership and/or
direct or indirect control by any person of any of the shares in the capital of
the New Crown Owner or of any holding company of the New Crown Owner
which:
(i) amount to more than 50 percent of the issued shares of the
New Crown Owner (other than shares that carry no right to participate beyond a
specified amount in a distribution of either profits or capital);
(ii) enable that person to exercise, or control the exercise
of, more than 50 percent of the maximum number of votes that can be exercised at
a general meeting of the New Crown Owner;
(iii) enable that person to control the composition of the
board of directors of the New Crown Owner; or
(iv) entitle that person to receive more than 50 percent of
every dividend paid on shares issued by the New Crown Owner, other than shares
that carry no right to participate beyond a specified amount in a distribution
of either profits or capital; or
(b) the power to govern the financial and operating policies of
the New Crown Owner for the purpose of obtaining the benefits and/or the risks
normally associated with ownership;
Encumbrance includes any mortgage,
lien, charge or encumbrance whether equitable or otherwise over the Milford
Airport Assets;
Holding Company has the meaning
given to it in the Companies Act 1993;
Indication Date means the date
specified in the Disposal Notice by which Te Runanga is required to respond to
the Disposal Notice under clause 5.2;
Milford Airport Assets means the
assets held by the Crown Owner in connection with its operation of the airport
at Milford Sound, including the right to occupy the land on which it is
situated, the runway, the taxiway, the parking area, the windsock, any buildings
used in connection with, and any rights under contracts relating to, the
operation, and, where the context requires, means those of the Milford Airport
Assets which are subject to the Disposal Offer. For the avoidance of doubt, a
reference to "any of" the Milford Airport Assets applies only to any portion of
the Milford Airport Assets without which it would not be possible to operate the
airport at Milford;
More Favourable Terms has the
meaning given to it in clause 1.2;
Ngai Tahu Charitable Trust means
the charitable trust known as the Ngai Tahu Charitable Trust, established by a
trust deed dated 23 March 1994;
New Crown Owner means a Crown Body
which is a Subsidiary of the Crown Owner or a Subsidiary of the Crown Owner's
Holding Company to which the Owner has Disposed of the Milford Airport Assets
pursuant to clause 2.2.1;
Ngai Tahu Participant means Te
Runanga or any party associated with Te Runanga or any consortium in which Te
Runanga or any party associated with Te Runanga is a participant;
Permitted Change of Control means
Change of Control of a Crown Owner or of any holding company of a Crown Owner
where Te Runanga has given its prior written approval to the Change of
Control;
Preliminary Disposal Notice means a
notice of the Crown Owner's intention to Dispose of the Milford Airport Assets,
given under clause 3;
Preliminary Information Package
means:
(a) in a case where the Crown Owner intends to attempt to
Dispose of the Milford Airport Assets pursuant to clause 4.2, information
which the Crown Owner intends to provide to other prospective bidders for the
Milford Airport Assets; or
(b) in a case where the Crown Owner does not intend to attempt
to Dispose of the Milford Airport Assets pursuant to clause 4.2,
information which shall include the matters referred to in clause 4.3.2(a) to
(c), subject to clause 4.3.3;
Settlement Date means the date
which is 20 Business Days after:
(a) in the case where Te Runanga accepts a Disposal Offer or
otherwise agrees to purchase the Milford Airport Assets under clause 8.1,
the later of the Acceptance Date or the date of the acceptance of the Disposal
Offer or of the agreement to purchase the Milford Airport Assets;
(b) in a case where clause 13.2 applies, the date on
which Te Runanga gives a notice under that clause;
(c) in a case where clause 15 applies, the later
of:
(i) the date on which Te Runanga and the Crown Owner agree on a
price for the Milford Airport Assets under clause 15.5.1; and
(ii) the date on which the price of the Milford Airport Assets
is determined by arbitration under clause 15.5.2,
or, in each case, such other date as the Crown Owner and Te
Runanga agree;
Subsidiary has the meaning given to
it in the Companies Act 1993.
1.2 Meaning of More Favourable Terms
A reference to any Disposal terms, contract or offer (the
"firstmentioned offer") being on More Favourable Terms than any other Disposal
terms, contract or offer (the "secondmentioned offer") means that the terms and
conditions (including price) of the firstmentioned offer are, taken as a
package, more favourable from a purchaser's point of view than the terms and
conditions (including price) of the secondmentioned offer, taken as a
package.
1.3 Interpretation
In the interpretation of this Deed, unless the context
requires otherwise:
1.3.1 headings appear as a matter of convenience and are not to
affect the interpretation of this Deed;
1.3.2 words or phrases (other than proper names) appearing in
this Deed with capitalised initial letters are defined terms and bear the
meanings given to them in this Deed;
1.3.3 where a word or expression is defined in this Deed, other
parts of speech and grammatical forms of that word or expression have
corresponding meanings;
1.3.4 the singular includes the plural and vice versa, and
words importing one gender include the other genders;
1.3.5 a reference to a party to this Deed or any other document
or agreement includes that party's successors, heirs, executors and
assigns;
1.3.6 a reference to a person includes a corporation
sole and also a body of persons, whether corporate or unincorporate;
1.3.7 references to Recitals and clauses are to Recitals and
clauses of this Deed;
1.3.8 references to written or in writing include
all modes of presenting or reproducing words, figures and symbols in a tangible
and permanently visible form; and
1.3.9 a reference to a date on which something shall be done
includes any other date which may be agreed in writing between Te Runanga and
the Crown Owner.
2 OPERATION OF RIGHT OF FIRST REFUSAL PROVISIONS
2.1 Disposal Subject to Rights of First Refusal
Subject to clause 2.2, the Crown Owner shall not Dispose
of any or all of the Milford Airport Assets until the requirements in this Deed
have been complied with.
2.2 Exceptions
The requirements in this Deed do not apply to the Disposal by
the Crown Owner of the Milford Airport Assets to:
2.2.1 a Crown Body, so long as the Crown Body to which the
Milford Airport Assets are Disposed takes the Milford Airport Assets subject to
the terms of this Deed and first enters into a deed of covenant at the Crown
Owner's expense in favour of Te Runanga to that effect; or
2.2.2 any person, if the person to whom the Milford Airport
Assets are to be Disposed or the agreement effecting the Disposal is first
approved in writing by Te Runanga or if Te Runanga has waived its rights under
this Deed by notice to the Crown Owner.
3 PRELIMINARY DISPOSAL NOTICE
3.1 Crown Owner shall give Preliminary Disposal
Notice
If the Crown Owner decides to attempt to Dispose of any or all
of the Milford Airport Assets or otherwise takes any action that indicates that
it has formed an intention to Dispose of all or any of the Milford Airport
Assets, then, unless clause 2.2 applies or this Deed otherwise permits
the Crown Owner to Dispose of the Milford Airport Assets without compliance with
this clause, it shall immediately give a Preliminary Disposal Notice to Te
Runanga.
3.2 Requirements for Preliminary Disposal Notice
The Preliminary Disposal Notice shall:
3.2.1 be in writing;
3.2.2 set out the Crown Owner's intention to Dispose of the
Milford Airport Assets; and
3.2.3 be accompanied by, or include, an offer to provide to Te
Runanga the Preliminary Information Package, upon receipt by the Crown Owner of
such confidentiality undertaking from Te Runanga as may reasonably be required
by the Crown Owner to preserve the confidentiality of the Preliminary
Information Package and any other confidential information which may be provided
to Te Runanga by the Crown Owner in the course of the Crown Owner's compliance
with this Deed (including pursuant to clause 11.1). Such undertaking
shall not:
(a) preclude disclosure by Te Runanga of such information to
any other prospective purchaser which has itself entered into a confidentiality
undertaking to the same effect as Te Runanga's confidentiality undertaking,
unless such prospective purchaser is a party which the Crown Owner wishes to
exclude from any sales process relating to the Milford Airport Assets and the
Crown Owner has given notice to that effect to Te Runanga and prohibits
disclosure to that party by other prospective purchasers; and
(b) impose more onerous obligations on Te Runanga than are
imposed, or are to be imposed, on other prospective purchasers of any or all of
the Milford Airport Assets.