Terms and conditions

Settlement for a Lot is completed when the Purchaser pays the full amount for the Lot (being the relevant price in accordance with clause 3.1) before the required date for settlement of the Lot (refer clause 2.5(a) or (b)) and is conditional on the Purchaser satisfying the pre-settlement conditions (refer clause 5).
 

4.2

If the Purchaser accepts the Offer for the Lot in accordance with clause 2.5(b), but wishes to settle any Lot before 3 October 2010, the Purchaser must give the Ministry written notice of the Lot and its proposed date of settlement for that Lot at least twenty (20) Working Days prior to the proposed date of settlement. The Chief Executive will notify the Purchaser in writing within ten (10) Working Days after receiving the Purchaser’s notice either (at his or her sole discretion) confirming the Purchaser’s proposed date of settlement or requiring a different date of settlement that is not more than twenty (20) Working Days after the Purchaser’s proposed date of settlement. For the avoidance of doubt, unless the Purchaser accepted the Lot for Early Settlement in accordance with clause 2.5(a), the amount required in settlement of a Lot is the price specified in clause 3.1.2 (plus GST).
 

4.3

All payments must be made in New Zealand dollars by:

1. a currently dated bank cheque drawn on a bank registered in New Zealand; or
2. electronic funds transfer. Account details will be provided to Purchasers on request to the Offer Manager.

4.4

Bank cheques are to be made payable to the Ministry and must be sent to the Offer Manager.

5. Pre-settlement conditions

Ongoing use test

5.1

As a condition of settlement of a Lot, the Purchaser must demonstrate current ongoing use of the Corresponding Current Licence for Broadcasting.
 

5.2

Whether or not there is current ongoing use is a matter to be determined by the Chief Executive in his or her sole discretion exercising a common sense judgment. However, without limiting what will be determined to be current ongoing use, Broadcasting for a minimum of 24 hours per day, seven (7) days per week (or the maximum hours of transmission under the licence if less) at a power substantially the same as the maximum power of emissions of the Lot for a continuous six (6) month period immediately prior to the date of settlement will be considered current ongoing use.
 

5.3

To assist the Chief Executive with his or her determination in clause 5.2, the Purchaser must submit to the Chief Executive, not more than twenty (20) Working Days and not less than five (5) Working Days prior to the date of settlement, a statutory declaration:

5.3.1

stating that the Corresponding Current Licence is in current ongoing use for Broadcasting; and

5.3.2

identifying the programme and detailing the extent of the current ongoing use for Broadcasting for the Corresponding Current Licence including average hours Broadcasting per day, average days Broadcasting per week, average transmitting power and the period of continuous ongoing use for broadcasting up to the date as at which the declaration is made; and

5.3.3

undertaking that such current ongoing use for Broadcasting detailed in 5.3.1 and 5.3.2 will continue up to, and be ongoing at, the date of settlement.

5.4

The Chief Executive may request further information from the Purchaser to make his or her determination under clause 5.2 and the Purchaser must respond promptly to such a request. The Chief Executive may (at his or her sole discretion) extend the date of settlement to allow for receipt and consideration of such information.
 

5.5

The Chief Executive will provide written notice to the Purchaser if the Chief Executive is not satisfied current ongoing use for Broadcasting has been demonstrated by the Purchaser and settlement will not proceed. Written notice from the Chief Executive that the Purchaser has not met the current ongoing use for Broadcasting test is conclusive in the absence of manifest error.
 

5.6

If the Purchaser of a Lot receives notice under clause 5.5 that the current ongoing use for Broadcasting test has not been met the contract to purchase that Lot is terminated immediately. Such notice will discharge the Purchaser, the Crown, the Ministry, the Chief Executive and any officer of the Ministry from any further liability or obligations in relation to that Lot or these Terms and Conditions.

Commerce Act authorisation

5.7

As a condition of settlement of a Lot, the Purchaser must, when submitting the declaration under clause 5.3, deliver to the Chief Executive a statutory declaration (either in addition to the statutory declaration in clause 5.3 or as part of it) specifying that either:

1. the acquisition of the Lot does not involve a breach of section 47 of the Commerce Act 1986; or
2. a clearance or authorisation has been obtained under section 66 or 67 of the Commerce Act 1986 for the acquisition of the Lot (such clearance or authorisation to be attached to the statutory declaration).

5.8

Section 138(1) of the Act provides that, for the purposes of section 47 of the Commerce Act 1986, management rights in relation to radio frequencies and Spectrum Licences granted under section 48 of the Act are deemed to be assets of a business. The acquisition of any Lot (and therefore the corresponding right or Spectrum Licence) as a result of this Offer is at the sole risk of the Purchaser. The Chief Executive makes no warranty that the acquisition of any Lot through this Offer process will comply with section 47 of the Commerce Act 1986. Such compliance is at all times the sole responsibility of the Purchaser.
 

5.9

If the Commerce Commission requests that the Ministry provide information that the Ministry holds in respect of a Purchaser and the Lot being purchased, the Ministry will provide, and the Purchaser consents to the provision of, that information to the Commerce Commission.
 

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Payment of outstanding debts

5.10

As a condition of settlement of a Lot, all amounts payable to the Crown by any person that relate to the Corresponding Current Licence and any predecessor of that licence must be up to date, including (for the avoidance of doubt) all fees payable in accordance with regulations made under the Act, any amounts payable in accordance with Part 16 of the Act, and any amounts payable to the Crown (including as may be invoiced by the Ministry) as a condition of grant of the licence (for example any resource rental).

6. Statutory Declarations

6.1

The Purchaser must notify the Ministry immediately in writing if any of the details provided in the statutory declaration at clauses 5.3 or 5.7 change prior to settlement.
 

6.2

If a Purchaser does not provide the statutory declaration under clause 5.3 or 5.7, or the statutory declaration, in the opinion of the Chief Executive, omits a material particular, is incorrect, misleading or incomplete or is not provided within the required timeframe or there is any material change in circumstance (including if the Purchaser fails to comply with the undertaking referred to in clause 5.3.3) and the Purchaser has not notified the Ministry in accordance with clause 6.1, then the contract to purchase the Lot is deemed to be repudiated by the Purchaser but without prejudice to the Crown’s rights to recover damages from the Purchaser.

7. Variation of lots

7.1

Despite clause 2.9, the Chief Executive may amend or replace a Spectrum Licence that comprises a Lot for which an Offer is accepted under clause 2.5(a) or (b) prior to the date of settlement of the Lot, if the Chief Executive (in his or her sole discretion) considers it necessary or desirable to do so in order to efficiently manage the radio frequency spectrum. In the event that any change under this clause is made that reduces the population coverage of the Lot:

1. the price for the Lot will be recalculated downwards by the Ministry to reflect the reduction in population coverage using the following formula:
    

Where:

2. in each case the population figures are to be calculated using the same statistical base (by way of example, the Census figures for the area), such base to be selected by the Chief Executive acting reasonably.

7.2

The Chief Executive will notify the Purchaser of the Lot in writing as soon as reasonably practical following registration of any change in a Spectrum Licence relating to a Lot under clause 7.1. If the change reduces population coverage, the notification (including a new invoice if applicable) will include the altered offer price for that Lot.
 

7.3

Any objection by the Purchaser to the altered price of a Lot must be made in writing to the Ministry within ten (10) Working Days of the date of receipt of the notice of any alteration to the price. The Purchaser may only object to the altered price on the basis that the Purchaser does not consider that it has be recalculated correctly based on the formula in clause 7.1(a). The Purchaser is deemed to have waived all rights to object if such objection is not made to the Ministry in writing within that time period. If an objection is made and is not resolved amicably within twenty (20) Working Days of the Ministry’s receipt of the objection, the matter is to be referred to arbitration by an arbitrator to be appointed by agreement or, failing agreement, by the President of the New Zealand Law Society. The arbitrator’s decision will be final.
 

7.4

Whether or not objection is taken, the Purchaser of the Lot is entitled by written notice to the Ministry within the later of:

1. twenty (20) Working Days of the date of the receipt of the notice of change to the licence under clause 7.2; or
2. if objection is taken under clause 7.3, fifteen (15) Working Days of the resolution of the objection;
    

to terminate its obligations to purchase the altered Lot, in which event neither the Purchaser, the Crown, the Ministry, the Chief Executive, nor any officer of the Ministry is under any liability or obligation to the other in relation to that Lot under these Terms and Conditions, or in respect of the Corresponding Current Licence for any period after 2 April 2011 or earlier expiry of that Corresponding Current Licence. In addition, liability does not exist in respect of any other licence granted to operate in part, or in whole, in the same frequency band at the same or any other location. Nor is the Ministry obliged to conduct an auction for the relevant Lot. Any subsequent allocation of such Lot is at the absolute discretion of the Chief Executive.
 

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8. Failure to settle

8.1

Without prejudice to the Crown’s rights to recover damages from the Purchaser for any failure to settle, if the Purchaser fails to settle its purchase of a Lot by the applicable date of settlement under clause 2.5(a) or 2.5(b) (as the case may be), the contract arising under these Terms and Conditions is terminated immediately without further notice.
 

8.2

Where the Crown seeks expenses incurred by the Crown as part of any claim for damages against the Purchaser (whether under clause 6.2 or clause 8.1), staff time incurred in the Offer process for that Lot will be included in that claim. A certificate from the Chief Executive of the resulting additional staff time and the cost of that is prima facie evidence of that aspect of the expense.
 

8.3

On termination under either clause 6.2 or 8.1 the Crown may, in its absolute discretion, take any or no action with respect to the Lot it sees fit, including without limitation reconfiguring the Lot and/or allocating it at a later date.
 

8.4

A Purchaser who defaults on its settlement obligations under clause 8.1 or is deemed to have repudiated the contract under clause 6.2 will not be eligible to participate in any subsequent reallocation of the Lot (reconfigured or otherwise).

9. Grant and registration of spectrum licences

9.1

Within twenty (20) Working Days of the Chief Executive being satisfied that all pre-settlement requirements have been met for a Lot and clearance of payment of the offer price or altered offer price (as the case may be), the Chief Executive will procure registration of the Purchaser as the rightholder of a Spectrum Licence corresponding to the Lot.
 

9.2

The Purchaser acknowledges that rights to transmit in accordance with the corresponding Lot occur only after registration of the Spectrum Licence in the name of the Purchaser on the Register of Radio Frequencies.

10. No representatives as to suitability for purposeTop

10.1

It is the responsibility of the Purchaser to ensure that any Lot is suitable for the Purchaser’s purpose or purposes. Neither the Crown, nor the Ministry, nor any officer of the Ministry make any representations, express or implied, in this respect.

11. Transfer of obligations

11.1

The Offer and the rights and obligations of the Purchaser under these Terms and Conditions are personal to the Purchaser and may only be assigned or transferred with the prior approval in writing of the Chief Executive. The Chief Executive may not unreasonably withhold its consent if the Chief Executive is satisfied that the Purchaser intends to transfer rights and obligations as part of the sale of the business that uses the Corresponding Current Licence, but in all other cases the Chief Executive’s discretion is absolute. In giving its consent, the Chief Executive may impose any reasonable conditions. For the avoidance of doubt, it shall be reasonable for the Chief Executive to give its consent subject to the Purchaser having sought and been given a clearance or authorisation by the Commission for the relevant transaction or transactions.

12. Legal requirements

12.1

These Terms and Conditions, and any Spectrum Licences acquired under these Terms and Conditions, are subject to all legal requirements that apply to the acquisition and holding of Spectrum Licences created under the Act.

13. Publication of information on the internet

13.1

Offerees and Purchasers agree that the results of the Offer (including names and details of Lots and Spectrum Licences) and any other information that the Chief Executive believes to be of general interest related to this Offer, including interim and final results may be published on the Ministry’s website or anywhere else.

14. Notice

14.1

The Offeree’s response in accordance with clause 2.3 to 2.6, and any statutory declaration, information or notice to be given by the Offeree or Purchaser under these Terms and Conditions, must be addressed to the Offer Manager.

14.2

14.3

Any document or notice to be given under these terms and conditions must be in writing and hand delivered or posted to the address of the other party. Any notice is deemed to be received:

1. if personally delivered, when delivered;
2. if posted, three (3) Working Days after posting; or
    

provided that any notice received after 5.00 pm or on a day which is not a Working Day shall be deemed not to have been received until the next Working Day.

SCHEDULE 1
FM Sound Broadcasting Spectrum Licences

Spectrum Licence Lots Offered
 

_____________ has signalled its intention against each Lot on this Schedule and by signing and submitting this Schedule to the Ministry, it agrees to the Terms and Conditions (as defined in Offer 4 – AM/FM sound broadcasting spectrum licences dated May 2008).

Note: This Schedule is to be signed:

1. by the Offeree or (if the Offeree is a body corporate) by an authorised officer of the Offeree; or
2. in a manner that is legally binding in accordance with the constitutional documents governing the Offeree (if any); and

that person’s signature must be witnessed by another person.