EXHIBIT 4(C)
----------------------------------------------------
DATED 24 FEBRUARY 1999
DEED OF COMMON TERMS
TXU Australia Holdings (AGP) Pty Ltd
TXU Australia (LP) No. 1 Limited
TXU Australia (LP) No. 2 Limited
(as the "CORE BORROWERS" and as "OBLIGORS")
Each of the companies specified in
schedule 1
("OBLIGORS")
Texas Utilities Company
("TEXAS")
Each of the financial institutions specified in
schedule 2
("FINANCIERS")
Each of the financial institutions specified in
schedule 3
("HEDGE COUNTERPARTIES")
Citibank, N.A.
BA Australia Limited
Westpac Banking Corporation
("JUNIOR FINANCIERS")
National Australia Bank Limited
("FACILITY A AGENT")
National Australia Bank Limited
("FACILITY B AGENT")
Chase Securities Australia Limited
("FACILITY D AGENT")
National Australia Bank Limited
("TRUSTEE")
MALLESONS XXXXXXX XXXXXX
Solicitors
Rialto
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Telephone (00 0) 0000 0000
Fax (00 0) 0000 0000
DX 101 Melbourne
Ref: JLC
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CONTENTS DEED OF COMMON TERMS
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1 INTERPRETATION 2
2 DECLARATION OF TRUST 26
3 DUTIES, POWERS AND RIGHTS OF TRUSTEE 27
Authority of Trustee 27
Extent of authority and obligations 27
Senior Creditors bound 27
Excluded roles and duties 27
After consultation and instructions 28
Matters requiring instructions from all Senior
Creditors 28
Matters requiring instructions from a Majority of Senior
Creditors 29
Matters requiring instructions from relevant Senior
Creditors 29
Overriding instructions 30
Without consultation or instructions 30
Trustee's actions 30
Senior Creditor's instructions 30
Trustee's obligations 31
Trustee's awareness of certain events 31
Trustee may assume compliance 32
Limit on disclosure obligations 32
No further obligations 32
Individual responsibility of Senior Creditors 32
Exoneration of Trustee 32
Trustee in capacity of a Senior Creditor 33
Trustee dealing in different capacities 33
Restriction on Senior Creditors exercising rights 33
Notice of transfer 34
Senior Creditor to pay over amounts received directly 34
Pro-rata refunds 34
Proceeds of litigation 34
Amendment to Deed 35
Senior Creditors to indemnify against non-payment 35
The Core Borrowers' back-to-back indemnity 35
Funds before acting 36
If a Senior Creditor does not fund 36
Core Borrowers' costs obligation not affected 36
Compliance may be assumed 37
Trustee is not responsible for Senior Creditor's breach 37
Delegation by Trustee 37
Duties when delegating 37
Responsibility for delegates 37
Trustee may rely on communications and opinions 37
Force majeure 37
No responsibility for force majeure 38
Authority to Execute 38
4 SUBORDINATION 38
Subordination 38
Rights and obligations following an Event 38
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Junior Creditor Undertakings 39
Permitted Junior Creditor Payments 39
Obligors 40
Revocation of Approvals 41
Preservation of Senior Creditor's Rights 41
Power of Attorney 43
Application as between Junior Finance Debt and Texas
Indemnity 44
Texas Guarantee 44
Corporations Law 44
Obligors 44
Texas 44
5 REPRESENTATIONS AND WARRANTIES 45
Representations and warranties 45
Continuation of representations and warranties 49
6 UNDERTAKINGS 50
General undertakings 50
Core Borrower's and Eastern's Hedge Undertakings 58
Accession of Hedge Counterparties 59
Undertaking of Hedge Counterparties 59
Notification of Hedge Exposures 60
Negative Undertakings 60
Financial Undertakings 66
Distributions 66
7 [DELETED] 68
8 DEFAULT 68
Events of default 68
Consequences of default 73
9 DISTRIBUTION OF RECOVERED MONEY 74
10 REPLACEMENT OF TRUSTEE 75
Removal of Trustee 75
Retirement 76
11 LIMITATION ON LIABILITY 76
Limitation on liability 77
12 COSTS, CHARGES, EXPENSES AND INDEMNITIES 77
What the Core Borrowers agree to pay 77
Indemnity 78
Items included in loss, liability and Costs 78
Payment of employees' losses 79
Currency conversion on judgment debt 79
Trustee fees 79
13 NOTICES 79
Form 79
Waiver of notice period 80
14 CHANGE IN CREDITORS 80
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New Senior Creditor 80
New Junior Creditor 81
Change in Senior Creditors 81
Change in Junior Creditor 82
Effect of Accession 82
Authority 82
Restriction on Senior Creditors 83
New Junior Creditor - condition precedent 83
Notice of Change 83
15 GENERAL 83
Set-off 83
Certificates 83
Prompt performance 84
Discretion in exercising rights 84
Consents 84
Partial exercising of rights 84
No liability for loss 84
Conflict of interest 84
Remedies cumulative 84
Rights and obligations are unaffected 84
Indemnities 84
Variation and waiver 84
Confidentiality 85
Further steps 85
Inconsistent law 85
Supervening legislation 85
Time of the essence 86
Counterparts 86
Serving documents 86
Consent by Obligors 86
16 GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS 86
1 DEFINITIONS AND INTERPRETATION 100
Definitions 100
Interpretation 100
2 SUBORDINATION 100
3 LAWS 101
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DEED OF COMMON TERMS
DATE: 24 February 1999
PARTIES: TXU AUSTRALIA HOLDINGS (PARTNERSHIP) LIMITED
PARTNERSHIP a limited partnership formed and
registered under the Partnership Xxx 0000 of
Victoria, the general partner of which is:
TXU AUSTRALIA HOLDINGS (AGP) PTY LTD (ACN 086 014
931) having an office at Xxxxx 00, 000 Xxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx; and the limited
partners of which are:
TXU AUSTRALIA (LP) XX. 0 XXXXXXX (XXXX 000 000
000), a company incorporated under the laws of
England and Wales and having its registered office
at Xxxxxxx Xxxxx, Xxxxxxxx Xxxxxx, Xxxxxx XX0X
0XX; and
TXU AUSTRALIA (LP) NO. 2 LIMITED (ARBN 086 406
724), a company incorporated under the laws of
England and Wales and having its registered office
at Xxxxxxx Xxxxx, Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX
(as the "CORE BORROWERS" and as "OBLIGORS")
EACH OF THE COMPANIES SPECIFIED IN SCHEDULE 1
("OBLIGORS")
TEXAS UTILITIES COMPANY having an office at Energy
Plaza, 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx 00000,
Xxxxxx Xxxxxx of America ("TEXAS")
EACH OF THE FINANCIAL INSTITUTIONS SPECIFIED IN
SCHEDULE 2 ("FINANCIERS")
EACH OF THE FINANCIAL INSTITUTIONS SPECIFIED IN
SCHEDULE 3 ("HEDGE COUNTERPARTIES")
CITIBANK, N.A. (ARBN 072 814 058) having an office
at Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx
XX XXXXXXXXX LIMITED (ACN 004 617 341) having an
office at Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx; and
WESTPAC BANKING CORPORATION (ARBN 007 457 141)
having an office at Xxxxx 0, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx ("JUNIOR FINANCIERS")
NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937)
having an office at Xxxxx 0, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx (xx its capacity as facility
agent under the Facility A Syndicated Facilities
Agreement) ("FACILITY A AGENT")
NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937)
having an office at Xxxxx 0, 000 Xxxxxxx Xxxxxx,
Xxxxxxxx (xx its capacity as facility agent under
the Facility B Syndicated Facilities Agreement)
("FACILITY B AGENT")
CHASE SECURITIES AUSTRALIA LIMITED (ACN 002 888
011) having an office at Xxxxx 00, XXX Xxxxxx, 000
Xxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx (in its
capacity as agent under the Facility D Facility
Agreement) ("FACILITY D AGENT")
NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937)
having an office at Xxxxx 0, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx (xx its capacity as "TRUSTEE")
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1 INTERPRETATION
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1.1 The following words have these meanings in this deed unless
the contrary intention appears.
ACCESSION DATE means, in respect of a New Creditor, the date on
which the Trustee executes a New Creditor Accession Deed executed
by that New Creditor in accordance with clause 14.
ACTION means action which may result in an amendment, waiver,
determination, consent, approval, release or discharge.
ALP LOAN AGREEMENT means the loan agreement dated 24 February
1999 between Holdco (as lender) and the Core Borrowers (as
borrowers) as amended by a deed dated on or about the Effective
Date.
AMOUNT OWING means, at any time for or in respect of a Senior
Creditor, the total of all amounts which are then due for
payment, or which will or may become due for payment in
connection with any Senior Finance Document (including
transactions in connection with them) to that Senior Creditor or
to the Trustee for the account of that Senior Creditor and
includes, in respect of a Hedge Counterparty, the Hedge Exposure
of that Hedge Counterparty.
AUSTRALIAN ACCOUNTING STANDARDS means the accounting standards
within the meaning of the Corporations Law and, where not
inconsistent with those accounting standards and the Corporations
Law, generally accepted accounting principles and practices in
Australia consistently applied by a body corporate or as between
bodies corporate.
AUTHORISATION includes:
(a) any consent, authorisation, registration, filing,
agreement, notarisation, certificate, permission,
licence, approval, authority, arrangement, exemption or
similar instrument (whether from, by or with a
Governmental Agency or any other person); or
(b) in relation to anything which will be prohibited or
restricted in whole or in part by law if a Governmental
Agency intervenes or acts in any way within a specified
period after application, lodgement, filing,
registration or notification, the expiry of that period
without the intervention or action.
AUTHORISED OFFICER means:
(a) in the case of a Creditor (other than any Obligor or
Texas), a director, secretary or an officer whose title
contains the word "manager", "director", "president",
"lawyer", "counsel" or a person performing the
functions of any of them; and
(b) in the case of an Obligor or Texas, a person appointed
and notified to the Trustee to act as an Authorised
Officer under the Transaction Documents to which it is
a party and whose specimen signature has been given to
the Trustee.
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BANK XXXX RATE means, on any date, the average bid rate for Bills
having a tenor of 30 days as displayed on the "BBSY" page of the
Reuters Monitor System on that day provided that if that rate is
not displayed the Bank Xxxx Rate means the rate quoted in good
faith by the Trustee as the rate at which the Trustee would bid
for Bills of that tenor on that day.
XXXX has the meaning it has in the Bills of Exchange Act 1909
(Cwlth) and a reference to the drawing, acceptance or endorsement
of, or other dealing with, a Xxxx is to be interpreted in
accordance with that Act.
BUSINESS DAY means a day (not being a Saturday, Sunday or public
holiday) on which banks are open for general banking business in
Melbourne and Sydney.
CALCULATION DATE means 31 March, 30 June, 30 September and 31
December in each year commencing on 30 June 2000.
CALCULATION PERIOD means, in relation to any Calculation Date,
the 12 month period ending on that Calculation Date.
CONSOLIDATED INTEREST COVER RATIO means, on any Calculation Date
in respect of any Calculation Period, the ratio of:
(a) EBITDA:
to:
(b) Debt Service in respect of or in connection with
Consolidated Senior Debt (which includes, without
limitation, all net amounts paid or payable by, or to,
any Hedge Counterparty or other financial institution
in respect of or in connection with any interest rate
Hedge Agreement),
for that Calculation Period.
CONSOLIDATED NET WORTH means the aggregate, on a consolidated
basis, of the paid up capital, retained profits and reserves
(excluding the amount of all asset revaluation reserves after
Financial Close) of the Group:
(a) less:
(i) all minority interests;
(ii) any paid up capital or share premium in respect of
shares or stock capable of being redeemed;
(b) plus the aggregate of Qualifying Subordinated Debt.
CONSOLIDATED SENIOR DEBT means at any time the sum of:
(a) the total Amount Owing to the Senior Creditors; and
(b) the aggregate outstanding principal amount of all other
Indebtedness of the Core Borrowers and Permitted
Indebtedness of the Group (excluding the Core
Borrowers) on a consolidated basis which is not Junior
Debt.
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CONTESTED TAXES means a Tax payable by an Obligor:
(a) that is being diligently contested by it in good faith
and in accordance with proper procedures;
(b) that is not required by applicable law to be paid
before the liability is contested; and
(c) in respect of which it has set aside sufficient
reserves of liquid assets to pay the Tax and any fine,
penalty or interest payable if the contest is
unsuccessful.
CONTROLLER has the meaning it has in the Corporations Law.
CORE BUSINESS means the generation, storage, processing, supply,
transmission, distribution and sale of energy products and any
ancillary activities and other activities which permit the more
efficient utilisation of assets and resources of the Group (so
long as these ancillary or other activities do not represent a
material diversification of the Core Business or a material
diversion of financial resources from the Core Business of the
generation, storage, processing, supply, transmission,
distribution and sale of energy products).
COSTS includes costs, charges and expenses, including those
incurred in connection with advisers.
CP PROGRAMME means the domestic commercial paper programme of
Eastern which is in place as at the Effective Date and which is
governed and supported by the following documents:
(a) the Commercial Paper Dealer Agreement dated 18 April
1997 between Eastern and National Australia Bank
Limited, Australia and New Zealand Banking Group
Limited, Societe Generale Australia Limited,
Commonwealth Bank of Australia and Deutsche Bank AG (as
dealers);
(b) the Issuing and Paying Agency Agreement dated 18 April
1997 between Eastern and National Australia Bank
Limited;
(c) the agreement dated 21 June 1999 between Eastern and
Australia and New Zealand Banking Group Limited
providing for a $50,000,000 Commercial Paper Standby
Line;
(d) the agreement dated 15 September 1999 between Eastern
and Australia and New Zealand Banking Group Limited
providing for a $25,000,000 Commercial Paper Standby
Line;
(e) the agreement dated 24 February 1999 between Eastern
and National Australia Bank Limited providing for a
$25,000,000 short term line of credit;
(f) the agreement dated 3 May 1999 between Eastern and
National Australia Bank Limited providing for a
$100,000,000 Liquidity Support Facility;
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(g) the agreement dated 9 March 1999 between Eastern and
Commonwealth Bank of Australia providing for a
$75,000,000 Cash Advance Facility;
(h) the agreement dated 20 October 1999 between Eastern and
TXU Corporation providing for a $50,000,000 Standby
Facility;
(i) the agreement dated 22 December 1999 between Eastern
and SG Australia Limited providing for a $20,000,000
Option Facility to issue commercial paper; and
(j) the agreement dated 22 December 1999 between Eastern
and Deutsche Bank AG providing for a $50,000,000 Bond
Option Facility.
CREDITOR means each Senior Creditor and each Junior Creditor.
Where the term is used in relation to the obligations of any one
of those persons "to the Creditors" it is a reference to the
obligations of that person to each other person which is a
Creditor.
DEBT SERVICE means, in respect of any Calculation Period and on a
consolidated basis, all Interest (including, but not limited to:
(a) any discount on any Xxxx, debenture, bond, note or
other security;
(b) any discount in respect of any receipts or receivables
which have been sold by the Group to any person
(including, without limitation, under any
securitisation program or facility);
(c) any line, facility, commitment, acceptance, usage,
discount, guarantee or other fees and amounts incurred
on a regular or recurring basis which are payable in
relation to Indebtedness (which, for the avoidance of
doubt, excludes any establishment, underwriting or
other upfront fees);
(d) any dividend payable on redeemable preference shares or
on any other share or stock the obligations in respect
of which constitute Indebtedness;
(e) capitalised interest;
(f) the portion of rental or hire payments in the nature of
interest under any finance lease, sale and leaseback or
hire purchase agreement to which any member of the
Group is a party;
(g) Interest, premiums, fees, break costs and any other
amounts paid, payable or incurred by any member of the
Group under any Derivative Transaction less Interest,
premiums, fees and any other amounts paid, payable or
incurred to any member of the Group by the counterparty
to the Derivative Transaction),
which, in accordance with Australian Accounting Standards, is or
would be regarded as paid, payable or incurred by the Group in
that Calculation Period.
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DEED OF SUBORDINATION means a deed in or substantially in the
form of schedule 6.
DEED POLL has the meaning given to that term in any Senior
Finance Document.
DERIVATIVE TRANSACTION means a contract, agreement or arrangement
(other than in respect of the price of electricity or gas) which
is:
(a) a futures contract (as defined in the Corporations
Law); or
(b) an interest rate or currency hedge, swap, option, a
swaption, a forward rate agreement or any other
contract, agreement or arrangement similar to or having
in respect of its subject matter a similar effect to
any of the above.
DISTRIBUTION AREA means, as the context may require:
(a) the area in Victoria in which Westar is authorised to
provide services by means of distribution pipelines or
distribute and supply gas, being that area defined as
the "Distribution Area" and described in schedule 2 to
Westar's Distribution Licence; and
(b) the area in Victoria in which Eastern is authorised to
distribute and supply electricity, being that area
defined as the "Distribution Area" and described in
schedule 2 to Eastern's Distribution Licence; and
(c) any other area in which an Obligor is authorised to
distribute or supply energy products.
DISTRIBUTION LICENCE means, as the context may require:
(a) the distribution licence issued by ORG pursuant to the
Gas Industry Xxx 0000 with effect from 11 December
1997, as amended and transferred to Westar;
(b) the distribution licence issued to Eastern by ORG
pursuant to the Electricity Industry Xxx 0000 in effect
from 3 October 1994, as amended; and
(c) any other licence issued or transferred to, or held by,
an Obligor to distribute or supply energy products.
DRAWDOWN DATE has the meaning given to that term in any Senior
Finance Document.
DRAWDOWN NOTICE has the meaning given to that term in any Senior
Finance Document.
EASEMENTS means all easements, rights or privileges held by or
vested in or deemed to be held by or vested in an Obligor
(whether under the Gas Industry Xxx 0000, the Electricity
Industry Xxx 0000 or otherwise) in, over, appurtenant to or
affecting any real property.
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EASTERN means Eastern Energy Limited (ACN 064 651 118).
EASTERN NOTES means the notes issued by Eastern under the
Indenture dated 1 December 1996 between Eastern and The Bank of
New York, as trustee, comprising US$250,000,000 6.25% Senior
Notes due 2006 and US$100,000,000 7.25% Senior Notes due 2016.
EBITDA means, in respect of any Calculation Period, the earnings
of the Group (including the proceeds of any claim under a
business interruption insurance policy and any interest earnings)
on a consolidated basis and before:
(a) abnormal items (which includes the sale proceeds from
the disposal of assets);
(b) extraordinary items including, without limitation,
costs arising on the termination of any Derivative
Transaction;
(c) Debt Service;
(d) income tax; and
(e) depreciation and amortisation.
EFFECTIVE DATE means the date upon which all of the conditions
precedent set out in clause 2 of the deed amending this deed and
executed on or about 22 February 2000 have been satisfied or
waived by the Trustee.
ENFORCEMENT ACTION means, in relation to an Obligor:
(a) a right arising from a default by an Obligor is
exercised or enforced against the Obligor including,
without limitation, the making of a declaration under
clause 8.2 of this deed or a demand for payment under
the Guarantee;
(b) an application is made for, or a notice is given or
other step is taken with a view to:
(i) insolvency, liquidation, administration,
dissolution or similar proceedings with respect
to the Obligor;
(ii) an administration, arrangement, composition or
assignment for the benefit of creditors, or any
class of creditors, of the Obligor; or
(iii) the appointment of any person as a Controller in
relation to property of an Obligor,
whether by petition, application, convening of a meeting, voting
in favour of a resolution or otherwise.
ENVIRONMENT means all aspects of the surroundings of human
beings, including:
(a) the physical characteristics of those surroundings such
as the land, the waters and the atmosphere; and
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(b) the biological characteristics of those surroundings
such as animal, plants and other forms of life; and
(c) the aesthetic characteristics of those surroundings
such as their appearance, sounds, smells, tastes and
textures.
ENVIRONMENTAL LAW means a law regulating or otherwise relating to
the Environment including, but not limited to, any law relating
to land use, planning, water catchments, pollution of air or
water, noise, smell, contamination, chemicals, waste, pesticides,
use of dangerous goods or hazardous substances, noxious trades or
any other aspect of protection of the Environment.
EVENT means the happening of any of these events:
(a) an order is made that an Obligor be wound up; or
(b) a liquidator is appointed in respect of an Obligor; or
(c) a provisional liquidator is appointed in respect of an
Obligor and the provisional liquidator is ordered or
required to admit all debts to proof or pay all debts
capable of being admitted to proof proportionately; or
(d) an Obligor enters into, or resolves to enter into, a
scheme of arrangement, deed of company arrangement or
composition with, or assignment for the benefit of, all
or any class of its creditors; or
(e) an Obligor resolves to wind itself up or otherwise
dissolve itself.
EVENT OF DEFAULT means an event specified in clause 8.
EXCLUDED SUBSIDIARY means each of:
(a) TXU (No. 3) Pty Ltd (ACN 081 074 188);
(b) TXU (No. 4) Pty Ltd (ACN 081 074 197);
(c) TXU (No. 5) Pty Ltd (ACN 000 000 000);
(d) TXU (No. 6) Pty Ltd (ACN 081 688 913); and
(e) TXU Australia (Queensland) Pty Ltd (ACN 081 754 538),
unless and until any of those bodies corporate become Obligors in
accordance with this deed.
FACILITY A AGENT means National Australia Bank Limited or any
successor agent appointed by the relevant Financiers under the
Facility A Syndicated Facilities Agreement from time to time.
FACILITY A SYNDICATED FACILITIES AGREEMENT means the agreement
dated 24 February 1999 between the Core Borrowers, the WCF
Borrowers (as defined in that agreement), the Joint Lead Banks
(as defined in that agreement), the Working Capital Bank (as
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defined in that agreement), the Hedge Counterparties (as defined
in that agreement), National Australia Bank Limited as the agent
and the offshore paying agent and the Financiers (as defined in
that agreement) as amended by an agreement dated on or about the
Effective Date.
FACILITY B AGENT means National Australia Bank Limited or any
successor agent appointed by the relevant Financiers under the
Facility B Syndicated Facilities Agreement from time to time.
FACILITY B SYNDICATED FACILITIES AGREEMENT means the agreement
dated on or about the Effective Date between the Core Borrowers,
the Financiers named therein and the Facility B Agent.
FACILITY C AGREEMENTS means each of:
(a) the agreement entitled "Working Capital Facility
Agreement" dated on or about the Effective Date between
the Core Borrowers and National Australia Bank Limited;
(b) the agreement entitled "Working Capital Facility
Agreement" dated on or about the Effective Date between
the Core Borrowers and Westpac Banking Corporation; and
(c) the agreement entitled "Working Capital Facility
Agreement" dated on or about the Effective Date between
the Core Borrowers and Australia and New Zealand
Banking Group Limited.
FACILITY D AGENT means Chase Securities Australia Limited or any
successor agent appointed by the relevant Financiers under the
Facility D Facility Agreement from time to time.
FACILITY D FACILITY AGREEMENT means the syndicated loan facility
agreement dated 30 April 1999 between the Core Borrowers, The
Chase Manhattan Bank (as financier), Holdco, TXU (No. 12) Pty
Ltd, Eastern and the Facility D Agent as amended by a deed dated
on or about the Effective Date.
FACILITY E AGREEMENT means the agreement entitled "Facility E
Loan Agreement" dated on or about the Effective Date between the
Core Borrowers and National Australia Bank Limited and Westpac
Banking Corporation.
FINANCE DOCUMENT means any Senior Finance Document, any Junior
Finance Document, any other document which the Core Borrowers and
the Trustee agree in writing is to be a Finance Document and any
other instrument connected with any of them.
FINANCIAL CLOSE means 24 February 1999.
FINANCIAL YEAR means each 12 month period ending on 31 December
in each year.
FINANCIER means each financial institution specified in schedule
2 and any other person who becomes a Financier and Senior
Creditor in accordance with clause 14.
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FINANCIAL STATEMENTS means:
(a) a profit and loss statement; and
(b) a balance sheet; and
(c) a statement of cash flows,
together with any notes to those documents and a directors'
declaration as required under the Corporations Law (in the case
of a body corporate incorporated in Australia) and any other
information necessary to give a true and fair view.
FIXED DATE means the day by which the Trustee determines that it
has been instructed to give a notice under clause 8.2(a).
FRANCHISE AREA means the area in Victoria in which Kinetik is
authorised to sell gas, being that area defined as the "Franchise
Area" and described in schedule 2 to Kinetik's gas Retail
Licence.
GENERATION ASSET means any asset utilised or employed in the
generation of electricity.
GENERATION LICENCE means any licence issued or transferred to, or
held by, an Obligor to generate electricity or other energy
products
GOOD OPERATING PRACTICE means the standard of operating and
engineering practice that would reasonably be expected from a
prudent utility located in Australia (not being owned and
operated by a Governmental Agency) for the generation, supply,
storage, processing, transmission, distribution or sale of energy
products under conditions comparable to those applicable to the
Infrastructure, consistent with applicable laws, regulations,
codes and licences. The determination of comparable conditions
will take into account factors such as the design and
specifications, relative size, age, load characteristics and
technological status of the Infrastructure and assets deployed in
the Core Business.
GOVERNMENTAL AGENCY means any government, any minister of a
government or any governmental or semi-governmental entity,
agency or authority (including, without limitation, the
Australian Competition and Consumer Commission and the ORG).
GROUP means the Core Borrowers and their Subsidiaries.
GUARANTEE means the guarantee and indemnity dated 24 February
1999 between the Core Borrowers, Holdco, TXU8 and TXU9 in favour
of the Trustee as amended by a deed dated on or about the
Effective Date pursuant to which the Core Borrowers and TXU9 were
released from their obligations under the guarantee and indemnity
and by an agreement dated on or about the Effective Date.
GUARANTEED MONEY has the meaning given to that term in the
Guarantee.
GUARANTOR means each of Holdco and TXU8.
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HALF YEAR means each period of six months ending on 30 June and
31 December in each year.
HEDGE AGREEMENT means each interest rate or currency hedging
document (including any restatement of any earlier document) or
transaction entered into between the Core Borrowers or Eastern
and any Hedge Counterparty or other financial institution from
time to time.
HEDGE COUNTERPARTY means each financial institution specified in
schedule 3 and any person (other than the Core Borrowers and
Eastern) who is a party to a Hedge Agreement entered into after
the Effective Date and who becomes a Senior Creditor in
accordance with clause 14.
HEDGE EXPOSURE means in respect of a Hedge Counterparty at the
applicable date the amount which is H in the following formula:
H = M to M + Unpaid Amounts
where:
M TO M is the result of the xxxx to market
calculation of the obligations under the Hedge
Agreements to which it is a party provided that M
to M will be a positive number if it represents a
liability of the Core Borrowers or Eastern (as the
case may be) to the Hedge Counterparty and a
negative number if it represents a liability of
the Hedge Counterparty to the Core Borrowers or
Eastern (as the case may be).
UNPAID AMOUNTS is any amount due and payable but unpaid under the
Hedge Agreements to which it is a party provided that Unpaid
Amounts will be a positive number if it represents amounts owing
by the Core Borrowers or Eastern (as the case may be) to the
Hedge Counterparty and a negative number if it represents amounts
due and payable but unpaid by the Hedge Counterparty to the Core
Borrowers or Eastern (as the case may be),
provided that if H is a negative number it shall be deemed to be
equal to zero.
HEDGE LIABILITIES means all present and future liabilities
(actual or contingent) payable or owing by the Core Borrowers and
Eastern to a Hedge Counterparty or any of them under or in
connection with the Hedge Agreements, whether or not matured and
whether or not liquidated, together in each case with:
(a) any novation, deferral or extension of any of those
liabilities permitted by the terms of this deed;
(b) any claim for damages or restitution arising out of, by
reference to, or in connection with, any of the Hedge
Agreements;
(c) any claim, flowing from any recovery by the Core
Borrowers or Eastern or a receiver or liquidator
appointed to the Core Borrowers or Eastern or any other
person of a payment or discharge in respect of any of
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those liabilities on grounds of any insolvency
provision or otherwise; and
(d) any amount (such as post-insolvency interest) which
would be included in any of the above but for any
discharge, non-provability, unenforceability or
non-allowability of the same as a result of any
insolvency provisions.
HOLDCO means TXU Australia Holdings Pty Ltd (ACN 086 006 859).
HOLDCO - TXUA LOAN AGREEMENT means the loan agreement dated 24
February 1999 between Holdco (as lender) and TXUA (as borrower)
as amended by a deed dated on or about the Effective Date.
INDEBTEDNESS means any debt or other monetary liability (whether
actual or contingent) in respect of moneys borrowed or raised or
any financial accommodation (including in respect of any moneys
raised from the sale or securitisation of any receipts or
receivables) whatever, or in the case of paragraph (h) below, a
Derivative Transaction, including a debt or liability under or in
respect of any:
(a) Xxxx, bond, debenture, note or similar instrument;
(b) acceptance, endorsement or discounting arrangement;
(c) guarantee granted by a financial institution
guaranteeing the payment of a debt (the "guaranteed
debt"), in which case the guaranteed debt will not be
included;
(d) finance lease or sale and leaseback (and for the
purposes of clause 6.3(b), operating lease);
(e) deferred purchase price (for more than 180 days) of any
asset or service;
(f) obligation to deliver goods or provide services paid
for in advance by any financier or in relation to any
other financing transaction;
(g) amount of capital and premium payable or in connection
with the reduction of any preference shares or any
amount of purchase price payable for or in connection
with the acquisition of redeemable preference shares;
(h) Derivative Transaction; or
(i) guarantee, indemnity or guarantee and indemnity,
and irrespective of whether the debt or liability is owed or
incurred alone or severally or jointly or both with any other
person. For the purpose of calculating the principal amount of
any Indebtedness under:
(j) any securitisation of receipts or receivables, the
principal amount shall be taken to be the discounted
amount of proceeds paid in exchange for the receipts or
receivables; and
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(k) any finance lease or sale and leaseback, the aggregate
portion of all rental in the nature of principal.
INFRASTRUCTURE means:
(a) all gas transmission and distribution pipes, and all
other plant and equipment used in the reticulation,
transmission or metering of gas which, in its ordinary
use, is located in a fixed position wherever located,
but excludes motor vehicles and mobile plant owned or
leased by the Group; and
(b) all electricity transmission and distribution lines,
power poles, underground cables, stations,
sub-stations, switchyard equipment and all other plant
and equipment used in the reticulation, transformation
or metering of electrical power, which in its ordinary
use, is located in a fixed position wherever located,
but excludes motor vehicles and mobile plant owned or
leased by the Group; and
(c) all Easements.
INFRASTRUCTURE ASSETS means any asset which forms part of the
Infrastructure.
INSOLVENCY EVENT means the happening of any of these events:
(a) an order is made that an entity be wound up; or
(b) an application is made to a court that an entity be
wound up or for an order appointing a liquidator or
provisional liquidator in respect of an entity (and is
not stayed or dismissed within 14 days) unless the
entity satisfies the Trustee (acting on the
instructions of the Majority of Senior Creditors)
within 14 days of it being made that the application is
frivolous or vexatious; or
(c) a liquidator or provisional liquidator is appointed in
respect of an entity, whether or not under a court
order;
(d) except to reconstruct or amalgamate while solvent on
terms approved by the Trustee (acting on the
instructions of the Majority of Senior Creditors), an
entity enters into, or resolves to enter into, a scheme
of arrangement, deed of company arrangement or
composition with, or assignment for the benefit of, all
or any class of its creditors, or it proposes a
reorganisation, moratorium or other administration
involving any class of its creditors; or
(e) an entity resolves to wind itself up, or otherwise
dissolve itself, or gives notice of intention to do so,
except to reconstruct or amalgamate while solvent on
terms approved by the Trustee (acting upon the
instructions of the Majority of Senior Creditors) or is
otherwise wound up or dissolved; or
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(f) a Controller is appointed to or over all or any part of
the assets or undertaking of the entity or the holder
of any Security Interest takes possession of any asset
of the entity; or
(g) an entity is or is deemed by law or a court to be
insolvent; or
(h) an entity takes any steps to obtain protection or is
granted protection from its creditors, under any
applicable legislation or an administrator is appointed
to an entity or steps are taken by the directors of the
entity to make such an appointment; or
(i) anything analogous or having a substantially similar
effect to any of the events specified above happens
under the law of any applicable jurisdiction.
INTERCOMPANY LOAN AGREEMENT means each of:
(a) the ALP Loan Agreement;
(b) the Holdco - TXUA Loan Agreement;
(c) the TXUA - TXU8 Loan Agreement; and
(d) the TXU8 Loan Agreement.
INTERCOMPANY LOAN DEBT means any amount actually or contingently
owing under or in connection with an Intercompany Loan Agreement.
INTEREST includes, in relation to any principal or other amount
of Indebtedness, interest, fees, commissions and charges and any
other amounts in the nature of interest or the payment of which
has a similar effect or purpose to the payment of interest.
INTEREST PAYMENT DATE has the meaning given to that term in any
Senior Finance Document.
JUNIOR CREDITOR means each of:
(a) each Junior Financier;
(b) TXUA;
(c) Texas; and
(d) any other person who is owed Qualifying Subordinated
Debt or Subordinated Guarantee Debt.
JUNIOR DEBT means each of:
(a) the Junior Finance Debt;
(b) the Texas Indemnity;
(c) the Intercompany Loan Debt of TXU8 under the TXUA-TXU8
Loan Agreement;
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(d) any Qualifying Subordinated Debt and any amount
(including, without limitation, Interest) actually or
contingently owing to a Junior Creditor under or in
connection with any Qualifying Subordinated Debt; and
(e) any Subordinated Guarantee Debt.
JUNIOR FINANCE DEBT means any amount actually or contingently
owing to a Junior Financier under or in connection with the
Junior Finance Documents (other than an amount owing or remaining
unpaid by Texas under the Texas Guarantee).
JUNIOR FINANCE DOCUMENT means the Subordinated Facility
Agreement, the Texas Guarantee, this deed, any document which is
nominated as a Junior Finance Document in any New Creditor
Accession Deed or Deed of Subordination, any document which
creates or acknowledges Qualifying Subordinated Debt, any
guarantee and indemnity of any Qualifying Subordinated Debt and
any other instrument connected with any of them.
JUNIOR FINANCIER means each of Citibank, N.A., BA Australia
Limited and Westpac Banking Corporation in their capacity as
financiers under (including, in the case of BA Australia Limited
and Westpac Banking Corporation, as assignees of the "Financier"
under) the Subordinated Facility Agreement and any assignee or
substitute who becomes a Junior Financier in accordance with
clause 14.
KINETIK means Kinetik Energy Pty Ltd (ACN 000 000 000).
LICENCE means the Distribution Licences, the Generation Licences,
the Retail Licences and any other Authorisation granted to any
Obligor to generate, distribute, store, process, supply or sell
energy products.
LICENCE HOLDER means each or all of Eastern, Westar, Kinetik and
any other Obligor that becomes the holder of a Licence.
LOAN NOTE has the meaning given to that term in any Senior
Finance Document.
LOSS includes any consequential loss, and any costs, liability,
claim, suit, proceeding, cause of action, demand or action.
MAJORITY OF SENIOR CREDITORS means at any time:
(a) if no Event of Default subsists, Senior Creditors
(other than Hedge Counterparties), the Amount Owing to
whom exceeds 66% of the total Amount Owing to all
Senior Creditors; and
(b) if an Event of Default subsists, Senior Creditors the
Amount Owing to whom exceeds 66% of the total Amount
Owing to all Senior Creditors.
MATERIAL ADVERSE EFFECT means a material adverse effect on:
(a) the legality, validity or enforceability of a Finance
Document or an Intercompany Loan Agreement; or
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(b) an Obligor's ability to observe its obligations under
any Finance Document or an Intercompany Loan Agreement;
or
(c) the ability of an Obligor to carry on its business as
it is being conducted at the time preceding the event;
or
(d) the rights of a Senior Creditor under a Senior Finance
Document.
MATERIAL CONTRACT means:
(a) the Intercompany Loan Agreements;
(b) the Partnership Deed;
(c) any contract having a term of more than 12 months for
the purchase of energy products by an Obligor (and, for
the avoidance of doubt, does not include any Derivative
Transaction or similar transaction, including energy
trading) and under which the consideration payable by
that Obligor in any 12 month period exceeds
$50,000,000;
(d) any contract entered into by an Obligor relating to
access to or the use of, or maintenance of any
transmission, distribution network or system and under
which the consideration payable by, or received by (as
the case may be) that Obligor in any 12 month period
exceeds $50,000,000;
(e) any contracts governed by the master vesting terms and
conditions relating to Eastern;
(f) the master hedge agreement between Eastern and AES
Transpower Holdings Pty Ltd dated 6 May 1999; and
(g) any other document which an Obligor and the Trustee
agree in writing will be a Material Contract for the
purposes of this deed.
MATERIAL OPERATING SUBSIDIARY means each Subsidiary of the Core
Borrowers which:
(a) contributes or in the current or following Financial
Year is likely to contribute more than 10 % of the
EBITDA of the Group; or
(b) which has total assets having a value of more than
$100,000,000,
unless the subsidiary has been released from its obligations
under this deed in accordance with this deed and, as at the
Effective Date, each of TXUA, Eastern, Kinetik, Westar and WUGS
is a Material Operating Subsidiary.
MATERIAL REGULATORY INSTRUMENT includes:
(a) the MSO Rules;
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(b) the Victorian Gas Industry Tariff Order;
(c) the Wimmera and Colac Tariff Order;
(d) the National Third Party Access Code for Natural Gas
Pipeline Systems and the Victorian Third Party Access
Code for Natural Gas Pipeline Systems;
(e) the Access Arrangements for the distribution system;
(f) the National Electricity Code;
(g) the Victorian Electricity Supply Industry Tariff Order;
(h) the undertaking given to the Australian Competition and
Consumer Commission under section 44ZZA of the Trade
Practices Act (Cth) given by Eastern as contemplated by
the National Electricity Code; and
(i) any guidelines, regulations or determinations issued or
made by the Office of Regulator-General established
under the Office of the Regulator-General Xxx 0000,
any other regulatory instrument, requirement, Authorisation or
code made under, contemplated by or connected with any of the
above (including without limitation any variation, amendment or
replacement of any of the instruments referred to above) which
has a material impact on an Obligor in any relevant jurisdiction.
MSO RULES has the meaning given in the Gas Industry Xxx 0000.
NATIONAL ELECTRICITY CODE has the meaning given to the word
"Code" in the National Electricity Law.
NEW CREDITOR means a person who becomes a Senior Creditor or
Junior Creditor by acceding to this deed after the date of this
deed.
NEW CREDITOR ACCESSION DEED means a deed in or substantially in
the form of schedule 4.
NEW OBLIGOR ACCESSION DEED means a deed in or substantially in
the form of schedule 7.
OBLIGOR means:
(a) each Core Borrower;
(b) each company specified in schedule 1; and
(c) any other person which executes a New Obligor Accession
Deed from time to time,
unless the person has been released from its obligations under
this deed in accordance with this deed but does not include
Texas.
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ORG means the Office of the Regulator-General established under
the Office of the Regulator-General Xxx 0000 or its equivalent
established in any jurisdiction other than Victoria.
PARTNERSHIP means the TXU Australia Holdings (Partnership)
Limited Partnership being a limited partnership formed and
registered under the Partnership Xxx 0000 of Victoria.
PARTNERSHIP DEED means the deed dated 27 January 1999 between
each Core Borrower establishing the Partnership, as amended by a
deed dated 23 February 1999.
PERMITTED DISPOSAL means:
(a) any disposal for fair value of obsolete assets which
are no longer required for the operation of the
business in accordance with Good Operating Practice,
and except for assets which are Infrastructure Assets,
the disposal of assets in exchange for other assets of
comparable value and utility;
(b) any disposal of an asset (other than an Infrastructure
Asset) provided that the aggregate value of all assets
disposed of by the Group in any Financial Year
(excluding disposals permitted under any other
paragraph of this definition) does not exceed 5% of the
total assets of the Group (as measured by reference to
the audited consolidated Financial Statements for the
previous Financial Year);
(c) the disposal of an Infrastructure Asset but only if:
(i) it is necessary or desirable in accordance with
Good Operating Practice to replace that
Infrastructure Asset and that asset is replaced in
the ordinary course of business by an asset which
is capable of performing the same function as the
asset replaced and whose selection, purchase,
installation and use is in accordance with Good
Operating Practice; or
(ii) the Infrastructure Asset is surplus to its
requirements having regard to Good Operating
Practice in relation to the Core Business and the
value of that Infrastructure Asset together with
the value of all other surplus Infrastructure
Assets disposed of by the Group in any Financial
Year does not exceed in aggregate $30,000,000;
(d) disposals and acquisitions between Obligors;
(e) disposals of energy products in the ordinary course of
business; or
(f) the disposal of any asset the subject of a contract of
sale entered into prior to the Effective Date and which
has been notified to the Trustee in writing prior to
the Effective Date and the disposal of the Rowville
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electricity transformation and switching facility.
PERMITTED INDEBTEDNESS means in relation to the Obligors (other
than the Core Borrowers):
(a) any Indebtedness incurred by the Guarantors under the
Guarantee or under any other guarantee and indemnity of
any Consolidated Senior Debt; or
(b) any Indebtedness under the Intercompany Loan
Agreements; or
(c) any Subordinated Guarantee Debt; or
(d) any Indebtedness under any Transactional Banking
Agreement; or
(e) any guarantee and/or indemnity issued by an Obligor in
relation to the obligations of another Obligor provided
those obligations are or have been incurred in the
ordinary course of the Core Business; or
(f) any Indebtedness of Eastern under:
(i) the Eastern Notes; or
(ii) the Subordinated Facility Agreement; or
(iii) Hedge Agreements in place as at the Effective
Date solely to manage the interest rate and
currency exposure of Eastern under the Eastern
Notes; or
(g) any Indebtedness of Eastern under the CP Programme for
a period not exceeding 90 days after the Effective
Date; or
(h) any Indebtedness under any equipment lease, provided
there is no breach of clause 6.3(t) of this deed; or
(i) any Indebtedness incurred in the ordinary course of
business by a TXU8 Borrower in favour of another TXU8
Borrower; or
(j) the obligation of a TXU8 Borrower to indemnify another
TXU8 Borrower in respect of any payments made by that
other TXU8 Borrower to TXU8 under the TXU8 Loan
Agreement; or
(k) any other Indebtedness approved in writing by the
Trustee (acting upon the instructions of the Majority
of Senior Creditors).
PERMITTED SECURITY INTEREST means:
(a) any Security Interest arising by operation of law in
the ordinary course of business securing Taxes which
are not yet in arrears and can subsequently be paid
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without penalty or which are Contested Taxes;
(b) any mechanic's, workmen's or any like lien or right of
set-off arising in the ordinary course of business,
securing or otherwise relating to Indebtedness which is
not yet overdue or which has been contested or
litigated in good faith, where the aggregate amount of
the Indebtedness in respect of all such liens and
rights of set-off does not at any time exceed $500,000;
(c) any Security Interest in respect of deposits of money
or property in an amount, or of a value, not exceeding
$1,000,000 in aggregate, by way of security for the
performance of any statutory obligations arising in the
ordinary course of business;
(d) this deed;
(e) the fixed and floating charge dated 1 December 1996
(ASIC Charge No. 517872) granted by Eastern in favour
of Westpac Banking Corporation, subsequently
transferred to Westpac Custodian Nominees Limited and
to be transferred to National Australia Bank Limited
provided that at no time does it secure any moneys,
liabilities or other obligations;
(f) any right of set off arising under a Material Contract
or in favour of NEMMCO or VENCorp over cash deposits,
bank guarantees or similar instruments lodged by any
Obligor by way of compliance with prudential
requirements arising under any Material Regulatory
Instrument; and
(g) any other Security Interest approved in writing by the
Trustee (acting upon the instructions of the Majority
of Senior Creditors).
POTENTIAL EVENT OF DEFAULT means an event which, with the giving
of notice or lapse of time, would become an Event of Default.
PROPERTIES means all properties or premises leased, occupied or
used or owned by an Obligor at any time.
QUALIFYING SUBORDINATED DEBT means the principal amount
(excluding capitalised interest) of any Indebtedness of the Core
Borrowers which is subordinated on the same terms as Junior Debt
is subordinated under this deed and:
(a) in respect of which the creditor (or a trustee or agent
for the creditor) has executed and delivered to the
Trustee a New Creditor Accession Deed; or
(b) in respect of which the creditor (or a trustee or agent
for the creditor) has either:
(i) executed and delivered to the Trustee a Deed of
Subordination; or
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(ii) demonstrated to the absolute satisfaction of the
Trustee and in a manner approved by the Trustee
that the Indebtedness is subordinated on
substantially the same terms as Junior Debt is
subordinated under this deed,
and in respect of which the Trustee has received from lawyers
reasonably approved by the Trustee a legal opinion in form and
substance acceptable to the Trustee in connection with the
obligations of the creditor as a subordinated creditor.
QUARTER means each period of three months ending on 31 March, 30
June, 30 September and 31 December in each year.
RECOVERED MONEY means the aggregate amount received in accordance
with clause 9 which has not been distributed under this deed.
RECOVERED MONEY DISTRIBUTION DATE means a day on which Recovered
Money is available for distribution in accordance with clause 9.
RELATED ENTITY has the meaning it has in the Corporations Law.
RELEVANT JUNIOR DEBT means, in respect of a Junior Creditor, the
Junior Debt in respect of that Junior Creditor.
RELEVANT SENIOR CREDITOR has the meaning given in clause 3.30.
RELEVANT SENIOR DEBT means, in respect of a Senior Creditor, the
Senior Debt in respect of that Senior Creditor.
RETAIL LICENCE means:
(a) the gas retail licence issued by ORG pursuant to the
Gas Industry Xxx 0000 with effect from 11 December
1997, as amended and transferred to Kinetik;
(b) the electricity retail licence issued by ORG pursuant
to the Electricity Industry Xxx 0000 with effect from 5
November 1997, as amended and transferred to Kinetik;
(c) the electricity retail licence issued to Eastern by ORG
pursuant to the Electricity Industry Xxx 0000 with
effect from 3 October 1994, as amended; and
(d) any other licence issued or transferred to, or held by,
an Obligor to sell energy products.
SECURITY INTEREST means any security for the payment of money or
performance of obligations including a mortgage, charge, lien,
pledge, trust or power.
SENIOR CREDITORS means:
(a) the Trustee;
(b) the Facility A Agent;
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(c) the Facility B Agent;
(d) the Facility D Agent;
(e) each Financier;
(f) each Hedge Counterparty;
(g) each Transactional Bank; and
(h) any other person who has provided Indebtedness (which
does not constitute Subordinated Indebtedness) to the
Group and has agreed with the Obligors and the Trustee
to be bound by the terms of this deed and has executed
and delivered to the Trustee a New Creditor Accession
Deed in accordance with clause 14.
SENIOR DEBT means any amount actually or contingently owing under
or in connection with the Senior Finance Documents, whether or
not then due and payable.
SENIOR FINANCE DOCUMENT means each of:
(a) this deed;
(b) the Facility A Syndicated Facilities Agreement;
(c) each Deed Poll;
(d) the Loan Notes;
(e) the Facility B Syndicated Facilities Agreement;
(f) the Facility C Agreements;
(g) the Facility D Facility Agreement;
(h) the Facility E Agreement;
(i) each Transactional Banking Agreement;
(j) the Guarantee;
(k) each Hedge Agreement to which a Hedge Counterparty is a
party;
(l) any document nominated as a Senior Finance Document in
any New Creditor Accession Deed; and
(m) any other document which an Obligor and the Trustee
agree in writing is to be a Senior Finance Document and
any other instrument connected with any of them.
SHARE means:
(a) in respect of a Senior Creditor and a day, the same
proportion (expressed as a percentage (rounded (if
necessary) to the nearest two decimal places)) as the
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proportion which the Amount Owing to that Senior
Creditor on that day bears to the aggregate Amount
Owing on that day to all the Senior Creditors; and
(b) in respect of a Relevant Senior Creditor and a day, the
same proportion (expressed as a percentage (rounded (if
necessary) to the nearest two decimal places)) as the
proportion which the Amount Owing to that Relevant
Senior Creditor on that day bears to the aggregate
Amount Owing on that day to all the Relevant Senior
Creditors.
SUBORDINATED FACILITY AGREEMENT means the agreement dated 24
February 1999 between the Core Borrowers, Eastern and Citibank
N.A., as amended and in respect of which Citibank N.A. with the
prior written consent of the Core Borrowers, Eastern and Texas,
assigned a portion of its rights as "Financier" on 24 December
1999 to BA Australia Limited and a portion of its rights as
"Financier" on 30 December 1999 to Westpac Banking Corporation.
SUBORDINATED GUARANTEE DEBT means any Indebtedness of a Guarantor
under a guarantee and indemnity of any Qualifying Subordinated
Debt provided that the Indebtedness of the Guarantor is
subordinated on the same terms as Junior Debt is subordinated
under this deed and:
(a) in respect of which the beneficiary of the guarantee
and indemnity has executed and delivered to the Trustee
a New Creditor Accession Deed; or
(b) in respect of which the beneficiary of the guarantee
and indemnity has either:
(i) executed and delivered to the Trustee a Deed of
Subordination; or
(ii) demonstrated to the absolute satisfaction of the
Trustee and in a manner approved by the Trustee
that the Indebtedness is subordinated on
substantially the same terms as Junior Debt is
subordinated under this deed,
and in respect of which the Trustee has received from lawyers
reasonably approved by the Trustee a legal opinion in form and
substance acceptable to the Trustee in connection with the
obligations of the beneficiary as a subordinated creditor.
SUBORDINATED INDEBTEDNESS means all liabilities of an Obligor in
connection with any Indebtedness which is fully subordinated to
the interests of the Senior Creditors.
SUBSIDIARY of an entity means:
(a) another entity which is a subsidiary of the first
within the meaning of part 1.2 division 6 of the
Corporations Law; or
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(b) another entity which is a subsidiary of or otherwise
controlled by the first within the meaning of any
approved accounting standard; or
(c) in relation to a Core Borrower, a corporation which is
owned or controlled by that Core Borrower and other
Core Borrowers,
and for the avoidance of doubt, the Core Borrowers and the
Partnership will each be deemed to be a "body corporate" for the
purposes of part 1.2 division 6 of the Corporations Law.
SURETY means a person (other than an Obligor) which at any time
is liable by guarantee or otherwise alone or jointly, or jointly
and severally, to pay or indemnify against non-payment of the
Senior Debt or Junior Debt.
SYSTEMS means for an entity, centralised and decentralised
hardware, software and networks (including interfaces, data
storage and equipment with embedded computer chips or logic) used
by an entity.
TAXES means taxes, levies, imposts, charges and duties imposed by
any authority (including stamp and transaction duties) together
with any related interest, penalties, fines and expenses in
connection with them, except if imposed on the overall net income
of a Creditor.
TEXAS GUARANTEE means the instrument entitled "Guaranty" dated 24
February 1999 given by Texas in favour of Citibank, N.A. and in
respect of which Citibank, N.A., with the prior consent of Texas,
assigned a portion of its rights on 24 December 1999 to BA
Australia Limited and a portion of its rights on 30 December 1999
to Westpac Banking Corporation.
TEXAS INDEMNITY means any right (whether arising by indemnity,
contribution, subrogation or otherwise) against a Core Borrower
or Eastern arising in connection with the Texas Guarantee.
TRANSACTION DOCUMENTS means each Finance Document, Licence,
Material Contract, any document which an Obligor acknowledges in
writing to be a Transaction Document, and any other document
connected with any of them.
TRANSACTIONAL BANK means any financial institution which has or
may provide a Transactional Banking Facility to any Obligor and
which is a Financier or has agreed with the Obligors and the
Trustee to be bound by the terms of this deed and has executed
and delivered to the Trustee a New Creditor Accession Deed.
TRANSACTIONAL BANKING AGREEMENT means any agreement in force from
time to time between any Obligor and a Transactional Bank setting
out the terms and conditions applicable to a Transactional
Banking Facility.
TRANSACTIONAL BANKING FACILITY includes any of the following:
(a) overdraft, credit card, equipment lease, bank
guarantee, insurance bond or similar facility; and
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(b) payroll, cheque encashment, merchant arrangements and
tape negotiation advice and same-day transaction, funds
transfer, direct debit and payment and settlement
facilities which are provided by a bank, and where
relevant, are settled between an Obligor and that bank
within the same day.
TRUST FUND means the amount held by the Trustee under clause 2.1
together with any other property which the Trustee acquires to
hold on the trusts of this deed including, without limitation,
any Security Interest which it executes after the date of this
deed in its capacity as trustee of the trust established under
this deed and any property which represents the proceeds of sale
of any such property or proceeds of enforcement of any Security
Interest.
TXUA means TXU Australia Pty Ltd (ACN 000 000 000).
TXUA-TXU8 LOAN AGREEMENT means the loan agreement dated 24
February 1999 between TXUA (as lender) and TXU8 (as borrower) as
amended by a deed dated on or about the Effective Date.
TXU8 means TXU (No. 8) Pty Ltd (ACN 085 235 776).
TXU8 BORROWER means each Obligor other than the Core Borrowers,
Holdco and TXUA.
TXU8 LOAN AGREEMENT means the agreement dated on or about the
Effective Date between TXU8 (as lender) and the TXU8 Borrowers
(as borrowers).
TXU9 means TXU (No. 9) Pty Ltd (ACN 085 235 801).
WESTAR means Westar Pty Ltd (ACN 086 015 036).
WUGS means Western Underground Gas Storage Pty Ltd (ACN 079 089
311).
YEAR 2000 COMPLIANT means in respect of all Systems that neither
its performance nor functionality is affected by dates prior to,
during or after the year 2000 and that, in particular:
(a) no value for current date causes or is likely to cause
any interruption in operation of the Systems;
(b) date-based functionality of the Systems behaves
consistently for dates prior to, during and after year
2000;
(c) in all data storage, the century in any date must be
specified either explicitly or by unambiguous
algorithms or inferencing rules;
(d) the year 2000 must be recognised as a leap year.
1.2 In this deed, unless the contrary intention appears:
(a) a reference to this deed or another instrument includes
any variation or replacement of any of them;
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(b) a reference to a statute, ordinance, code or other law
includes regulations and other instruments under it and
consolidations, amendments, re-enactments or
replacements of any of them;
(c) the singular includes the plural and vice versa;
(d) the word "person" includes a firm, an entity, an
unincorporated association or an authority;
(e) a reference to a person includes a reference to the
person's executors, administrators, successors,
substitutes (including, without limitation, persons
taking by novation) and assigns;
(f) an agreement, representation or warranty on the part of
or in favour of two or more persons binds or is for the
benefit of them jointly and severally but an agreement
or warranty of a Creditor or the Creditors binds that
Creditor or Creditors severally only;
(g) a reference to any thing (including without limitation,
any amount) is a reference to the whole and each part
of it and a reference to a group of persons is a
reference to all of them collectively, to any two or
more of them collectively and to each of them
individually; and
(h) an accounting term is a reference to that term as it is
used in Australian Accounting Standards.
1.3 Headings are inserted for convenience and do not affect the
interpretation of this deed.
1.4 [Deleted].
1.5 [Deleted].
1.6 If a Senior Finance Document requires or permits any act,
matter or thing to be done by the Core Borrowers, that act,
matter or thing must be done by TXU Australia Holdings (AGP)
Pty Ltd as general partner in the TXU Australia Holdings
(Partnership) Limited Partnership and, once done, will be
deemed to bind:
(a) the Core Borrowers and the TXU Australia Holdings
(Partnership) Limited Partnership; and
(b) each of the partners in the TXU Australia Holdings
(Partnership) Limited Partnership in accordance with
the Partnership Deed.
2 DECLARATION OF TRUST
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2.1 The Trustee declares that it holds the sum of A$10 and will
hold the Trust Fund on trust at any time for itself and the
persons who are Senior Creditors at that time.
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2.2 The trust established under this deed commences on the date
of this deed and unless determined earlier is to end on the
day prior to the eightieth anniversary of the date of this
deed.
2.3 The perpetuity period applicable to the trust established
under this deed is the period of 80 years commencing on the
date of this deed.
2.4 The trust established under this deed is to be known as the
TXU Australia Holdings Trust.
3 DUTIES, POWERS AND RIGHTS OF TRUSTEE
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AUTHORITY OF TRUSTEE
3.1 The Trustee is appointed to enter into and act as trustee
for the Senior Creditors under the Senior Finance Documents
to which it is a party.
EXTENT OF AUTHORITY AND OBLIGATIONS
3.2 Each Senior Creditor irrevocably authorises the Trustee to:
(a) enter into the Senior Finance Documents to which it is
intended to be a party; and
(b) take action on the Senior Creditor's behalf in
accordance with this deed and the other Senior Finance
Documents; and
(c) exercise the rights and carry out the obligations of
the Trustee expressly set out in the Senior Finance
Documents and rights, powers and discretions reasonably
incidental to them.
Each Senior Creditor acknowledges that the Trustee has no
obligations except those expressly set out in the Senior Finance
Documents.
SENIOR CREDITORS BOUND
3.3 Without limiting the liability of the Trustee contemplated
by clause 3.19, each Senior Creditor agrees:
(a) to be bound by anything properly done or properly not
done by the Trustee in accordance with this deed,
whether or not on instructions, and whether or not the
Senior Creditor gave an instruction or approved of the
thing done or not done; and
(b) any instruction given to or action taken by the Trustee
in accordance with this clause 3 is binding on each
Senior Creditor and each Senior Creditor authorises the
Trustee to give any consent and do any other matter or
thing necessary or appropriate to give effect to the
instruction.
EXCLUDED ROLES AND DUTIES
3.4 The appointment as trustee does not mean that the Trustee:
(a) is a trustee for the benefit of; or
(b) is a partner of; or
(c) has a fiduciary duty to, or other fiduciary
relationship with,
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any Senior Creditor, any Junior Creditor, an Obligor or any other
person, except as expressly set out in any Senior Finance
Document.
AFTER CONSULTATION AND INSTRUCTIONS
3.5 If the Trustee proposes to act on any of the following
matters, it agrees to:
(a) seek instructions from the Senior Creditors on the
proposal in accordance with clauses 3.6, 3.7 or 3.8 (as
the case may be); and
(b) take the action contemplated (including, without
limitation, Enforcement Action) if, and only if, it
receives instructions to do so from:
(i) all of the Senior Creditors - on matters listed in
clause 3.6;
(ii) a Majority of Senior Creditors - on matters listed
in clause 3.7;
(iii) the relevant Senior Creditors - on the matters
listed in clause 3.8; or
(iv) either all or a Majority of Senior Creditors - on
matters which the express terms of this deed
require the Trustee to act on the instructions of
either all or a Majority of Senior Creditors (as
the case may be).
MATTERS REQUIRING INSTRUCTIONS FROM ALL SENIOR CREDITORS
3.6 The following matters require instructions from all Senior
Creditors:
(a) a change to clauses 4, 6.3(a), 6.3(b), 6.3(c), 6.3(n),
6.3(q), 6.3(w), 6.4, 6.5, 6.6, 6.7, 6.8 or 8.2 of this
deed and to any defined terms used in those clauses;
(b) a discharge or termination of the Guarantee or a
release of a Guarantor from the Guarantee or of the
Core Borrowers, TXU8 or any Material Operating
Subsidiary from its obligations under this deed;
(c) a change to the definition of Majority of Senior
Creditors; and
(d) a change to clauses 3.5 to 3.9 or any provision of this
deed which requires the consent, approval, agreement or
instructions of all or a Majority of Senior Creditors;
(e) a change to clause 9;
(f) the waiver of any breach or other non-performance of
obligations by the Core Borrowers under clauses 6.3(n),
6.3(w) or 6.8;
(g) a release of any property mortgaged or charged under a
Security Interest granted to the Trustee; and
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(h) a change to this deed or any other Senior Finance
Document to which the Trustee is a party which will
increase the monetary obligations of the Senior
Creditors.
MATTERS REQUIRING INSTRUCTIONS FROM A MAJORITY OF SENIOR CREDITORS
3.7 The following matters require instructions from a Majority
of Senior Creditors:
(a) a variation of or change to this deed or any other
Senior Finance Document to which the Trustee is a party
other than a variation or change listed in clause 3.6;
(b) the exercise of the Trustee's rights in its capacity as
trustee in connection with clause 8 of this deed
(except clause 8.1(a) and clause 8.2(b) in the
circumstances set out in clause 3.8 and clause 8.2(b)
of this deed);
(c) the exercise of the Trustee's rights in its capacity as
trustee in connection with the Guarantee other than the
discharge or termination of the Guarantee or the
release of a Guarantor from the Guarantee (except in
the circumstances set out in clause 3.8 of this deed);
(d) the waiver of any breach or other non-performance of
obligations (other than the obligations referred to in
clause 3.6(f)) by an Obligor in connection with any
Senior Finance Document to which the Trustee is a party
or any obligation in any other Senior Finance Document
incorporated by reference from this deed;
(e) the waiver of any breach or other non-performance of
obligations by a Junior Creditor in connection with
this deed; and
(f) a release of any Obligor (other than the Core
Borrowers, TXU8 or any Material Operating Subsidiary)
from its obligations under this deed unless all of the
issued shares in the Obligor are being sold,
transferred or otherwise disposed of to a person which
is not an Obligor or a Related Entity of an Obligor and
such sale, transfer or disposal is permitted under
paragraph (b) of the definition of "Permitted
Disposal".
MATTERS REQUIRING INSTRUCTIONS FROM RELEVANT SENIOR CREDITORS
3.8
(a) A waiver by the Trustee of a breach or failure by an
Obligor to pay any money payable under a Senior Finance
Document requires instructions from the Senior Creditor
which is a party to or has the benefit of that Senior
Finance Document or if more than one Senior Creditor is
a party to or benefits from that Senior Finance
Document, the requisite number of Senior Creditors who
are required to provide corresponding instructions
under that Senior Finance Document.
(b) Any Senior Creditor which is a party to or has the
benefit of a Senior Finance Document or if there is
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more than one Senior Creditor which is a party to or
has the benefit of a Senior Finance Document then the
requisite number of Senior Creditors who are required
to provide instructions under that Senior Finance
Document may instruct the Trustee in the exercise of
the Trustee's rights in its capacity as trustee in
connection with this deed (including, without
limitation, clause 8.2(b)) and the Guarantee following
an Event of Default under clause 8.1(a) in respect of a
payment under that Senior Finance Document.
(c) Nothing in this clause permits an individual Senior
Creditor to instruct the Trustee individually if that
Senior Creditor is represented by an agent or trustee
and the ability of that Senior Creditor to give
instructions or take any individual action is
prohibited by any relevant Senior Finance Document.
OVERRIDING INSTRUCTIONS
3.9 In relation to all matters other than those under clauses
3.6 and 3.8 , a Majority of Senior Creditors may instruct
the Trustee and, if they do, the Trustee agrees to act in
accordance with the instructions.
WITHOUT CONSULTATION OR INSTRUCTIONS
3.10 Subject to clause 3.11, in any case where the Trustee does
not require instructions under clause 3.5 or does not
receive instructions or requests under clause 3.9, the
Trustee may exercise its rights in its capacity as trustee
for the Senior Creditors and observe its obligations in that
capacity as it sees fit. It need not consult any Senior
Creditor before doing so.
TRUSTEE'S ACTIONS
3.11 Whenever the Trustee:
(a) seeks instructions from the Senior Creditors , it
agrees to specify a reasonable period within which
those instructions are to be given; and
(b) receives instructions from a Majority of Senior
Creditors or all of them, it agrees to follow them but
only in so far as they are in accordance with this
deed; and
(c) exercises its rights in its capacity as trustee for the
Senior Creditors or takes any other action, it agrees,
subject to this deed, to act in the interests (in its
absolute opinion based upon the information which it
has at the time) of the Senior Creditors taken as a
whole.
SENIOR CREDITOR'S INSTRUCTIONS
3.12 Whenever a Senior Creditor gives instructions:
(a) it must do so in accordance with this deed and within
any time period specified by the Trustee for giving
instructions; and
(b) it authorises the Trustee to give any consent or do any
other thing appropriate to carry out the instructions.
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If a Senior Creditor does not give instructions in relation to
Action proposed or recommended by the Trustee within any time
period specified by the Trustee, it is taken to have instructed
the Trustee to take the proposed or recommended Action.
TRUSTEE'S OBLIGATIONS
3.13 The Trustee agrees:
(a) (DEFAULT AND REVIEW) to notify each Senior Creditor of
an Event of Default or Potential Event of Default
promptly after the Trustee becomes aware of it; and
(b) (MATERIAL NOTICES RECEIVED) to give each Senior
Creditor promptly after receiving it a copy of each
notice or other communication or document which is
received from an Obligor in connection with this deed
and which the Trustee considers material; and
(c) (MATERIAL NOTICES GIVEN) to give each Senior Creditor
promptly a copy of any notice or other communication or
document which the Trustee gives an Obligor in
connection with the Senior Finance Documents and which
the Trustee considers material; and
(d) (ACTION TAKEN) to give each Senior Creditor promptly a
report on anything done after instructions from the
Senior Creditors under clauses 3.5 to 3.12; and
(e) (DEFAULT) to give:
(i) notice to any Obligor of the non-payment, in the
manner provided in a Senior Finance Document, of
any money payable when due under a Senior Finance
Document following receipt of written notice of
such non-payment from a Senior Creditor which has
failed to be paid the money when due, subject to
the non-payment not having been waived and
otherwise in accordance with clause 3.8; and
(ii) a copy of such notice to each Senior Creditor.
TRUSTEE'S AWARENESS OF CERTAIN EVENTS
3.14 The Trustee is taken not to be aware of an Event of Default
or Potential Event of Default until either:
(a) an Authorised Officer of the Trustee who is responsible
for the administration of the transactions contemplated
by this deed has actual knowledge of sufficient facts
to ascertain that an Event of Default or Potential
Event of Default has occurred; or
(b) the Trustee receives a notice regarding an Event of
Default or Potential Event of Default under clause
6.1(p).
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TRUSTEE MAY ASSUME COMPLIANCE
3.15 Until it becomes aware in accordance with clause 3.14, the
Trustee may assume that no Event of Default or Potential
Event of Default has occurred and that the Obligors are
observing all their obligations in connection with the
Senior Finance Documents and need not inquire whether that
is, in fact, the case.
LIMIT ON DISCLOSURE OBLIGATIONS
3.16 Despite anything else in this deed, this deed does not
oblige the Trustee to disclose information or provide
documents relating to an Obligor or any other person if the
Trustee reasonably believes that to do so would constitute a
breach of law or duty of confidentiality.
NO FURTHER OBLIGATIONS
3.17 The Senior Creditors agree that the Trustee has no
obligations, other than those in clause 3.13, either
initially or on a continuing basis:
(a) to keep itself informed, or to inform a Senior
Creditor, about the performance by an Obligor of its
obligations under the Senior Finance Documents; or
(b) to provide a Senior Creditor with any information or
documents with respect to an Obligor (whether coming
into its possession before or after accommodation is
provided under the Senior Finance Documents).
INDIVIDUAL RESPONSIBILITY OF SENIOR CREDITORS
3.18 Each Senior Creditor acknowledges for the benefit of the
Trustee and each of its Related Entities that the Senior
Creditor has:
(a) entered into the Senior Finance Documents; and
(b) made and will continue to make its own independent
investigation of the financial condition and affairs of
each Obligor based on documents and information which
it considers appropriate; and
(c) made and will continue to make its own appraisal of the
creditworthiness of each Obligor; and
(d) made its own assessment and approval of the margin,
fees and other return to be obtained under the Senior
Finance Documents,
without relying on the Trustee (in whatever capacity) or any of
its Related Entities or on any representation made by any of
them.
EXONERATION OF TRUSTEE
3.19 Neither the Trustee nor any of its respective directors,
officers, employees, agents, attorneys or Related Entities
is responsible or liable to any Senior Creditor:
(a) because an Obligor fails to perform its obligations
under the Senior Finance Documents; or
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(b) for the financial condition of an Obligor; or
(c) because any statement, representation or warranty in a
Senior Finance Document is incorrect or misleading; or
(d) for the effectiveness, genuineness, validity,
enforceability, admissibility in evidence or
sufficiency of the Senior Finance Documents or any
document signed or delivered in connection with the
Senior Finance Documents; or
(e) for acting or for refraining from acting in accordance
with the instructions of a Majority of Senior Creditors
or all the Senior Creditors.
Without limiting this clause 3.19, the Trustee is not responsible
nor liable to any Senior Creditor for anything done or not done
in connection with the Senior Finance Documents by the Trustee or
its respective directors, officers, employees, agents, attorneys
or Related Entities except to the extent that the act or omission
amounts to fraud, gross negligence or wilful misconduct by the
Trustee or its delegates or gross or wilful breach by it or its
delegates of its or their obligations in its capacity as trustee
for the Senior Creditors.
TRUSTEE IN CAPACITY OF A SENIOR CREDITOR
3.20 If the Trustee is also a Financier or Hedge Counterparty,
then in its capacity as a Financier or Hedge Counterparty
it:
(a) has the same rights and obligations under the Senior
Finance Documents as the other Financiers and Hedge
Counterparties; and
(b) may exercise those rights and agrees to observe those
obligations independently from its role as Trustee as
if it were not the Trustee.
TRUSTEE DEALING IN DIFFERENT CAPACITIES
3.21 The Trustee may:
(a) engage in any kind of banking, trust or other business
with an Obligor or the Senior Creditors or any of their
Related Entities; and
(b) accept fees and other consideration from an Obligor or
any of the Obligor's Related Entities for services in
connection with the Senior Finance Documents or any
other arrangement,
as if it were not the Trustee and without having to account to
the Senior Creditors for any income it derives in doing so.
The Senior Creditors release the Trustee from any obligation it
might otherwise have to them in relation to these matters.
RESTRICTION ON SENIOR CREDITORS EXERCISING RIGHTS
3.22 A Senior Creditor may exercise a right in respect of a
matter referred to in clauses 3.5 to 3.12 against an Obligor
under any Senior Finance Document independently of the
Trustee only if:
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(a) the Trustee has been instructed in accordance with
clauses 3.5 to 3.12 to exercise the right; and
(b) the Trustee has not done so within a reasonable time
(and then only if any request by the Trustee under
clause 3.30 for funds in connection with the exercise
has been complied with),
and subject to the Senior Creditor being permitted to exercise
such a right under any relevant agency provisions which may apply
to the Senior Creditor under any Senior Finance Document other
than this deed.
NOTICE OF TRANSFER
3.23 The Trustee may treat each Senior Creditor as the holder or
obligor of the rights and obligations of that Senior
Creditor for all purposes under the Senior Finance Documents
until a transfer certificate (or other notice of the
assignment or transfer satisfactory to the Trustee) signed
by the substitute, assignee or transferee is given to the
Trustee in accordance with clause 14.
SENIOR CREDITOR TO PAY OVER AMOUNTS RECEIVED DIRECTLY
3.24 If a Senior Creditor receives or recovers an amount due to
it under a Senior Finance Document after the Trustee has
made a declaration under clause 8.2(a) (but not clause
8.2(b)) other than through distribution by the Trustee under
this deed, then it agrees to:
(a) notify the Trustee promptly; and
(b) pay an amount equal to that amount to the Trustee
within two Business Days after receiving it.
If the Senior Creditor receives the amount by applying a set-off,
the set-off occurs when the Senior Creditor records the set-off
in its books of account.
The amount paid to the Trustee is to be:
(c) taken to have been received by the Trustee and not by
the Senior Creditor who receives it (and the Amount
Owing of that Senior Creditor is to continue to include
that amount); and
(d) distributed by the Trustee to the parties entitled to
it in accordance with their entitlements under this
deed.
PRO-RATA REFUNDS
3.25 If a Senior Creditor who receives an amount referred to in
clause 3.24 is obliged to refund any part of it under laws
relating to Insolvency Events, then each Senior Creditor to
which that amount was distributed under clause 9 agrees to
pay to the Trustee (for payment to the Senior Creditor who
has to make the refund) its pro rata share of the amount
required to be refunded.
PROCEEDS OF LITIGATION
3.26 Despite clause 3.24, where a Senior Creditor recovers an
amount in legal proceedings it has brought as permitted by
clause 3.22, the Senior Creditor may retain the recovered
amount and need not pay the recovered amount to the Trustee
or share it with any other party who could have joined in
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the proceedings (or could have taken separate proceedings)
but did not.
If more than one Senior Creditor takes proceedings it has brought
as permitted by clause 3.22, the recovered amount is to be shared
by each of those Senior Creditors in the proportion that the
amount due for payment to it at that time bears to the total of
the amounts at that time due for payment to all the Senior
Creditors who take proceedings.
In each case, any surplus is to be paid to the Trustee.
AMENDMENT TO DEED
3.27 Each Senior Creditor authorises the Trustee to agree with
the other parties to this deed or any other Senior Finance
Document to which the Trustee is a party to a variation or
change to this deed or the other Senior Finance Document if:
(a) all or a Majority of Senior Creditors (as required
under clauses 3.5 to 3.9) have instructed, or are taken
to have instructed, the Trustee that they consent to,
or approve of, the variation or change; or
(b) the Trustee is satisfied that the variation or change
is made to correct a manifest error or an error of a
minor nature or that the variation or change is only of
a formal or technical nature.
SENIOR CREDITORS TO INDEMNIFY AGAINST NON-PAYMENT
3.28 Each Senior Creditor individually in accordance with its
Share indemnifies the Trustee against the non-receipt of a
payment from the Obligors and the Costs incurred by the
Trustee in funding the amount not paid, if the Trustee:
(a) reasonably claims a payment from the Core Borrowers
under clause 12 or from any other Obligor under a
corresponding provision of any other Senior Finance
Document to which the Trustee is a party; and
(b) does not receive it within seven days after the claim
is made,
provided that if the payment and Costs relate to a claim by the
Trustee for payment on account of one or more Senior Creditors,
only each of those Senior Creditors must indemnify the Trustee in
the proportion which the Amount Owing to each of them bears the
total Amount Owing to all of those Senior Creditors.
Each Senior Creditor agrees to pay amounts due under this
indemnity to the Trustee within 2 Business Days of demand from
the Trustee.
THE CORE BORROWERS' BACK-TO-BACK INDEMNITY
3.29 The Core Borrowers indemnify each Senior Creditor against
any liability or loss arising from, and any Costs incurred
in connection with, the Senior Creditor making a payment
under clause 3.28, clause 3.30 or clause 3.31.
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FUNDS BEFORE ACTING
3.30 If the Trustee proposes to exercise a right arising in its
capacity as trustee for the Senior Creditors or take any
Action (whether or not at the instruction of a Majority of
Senior Creditors or all Senior Creditors) in accordance with
this deed and the Trustee reasonably considers this could
result in the Core Borrowers or any other Obligor becoming
obliged to pay to the Trustee an amount under clause 12 or
under a corresponding provision of any other Senior Finance
Document to which the Trustee is a party, as the case may
be, the Trustee:
(a) may request the Senior Creditors (or only the relevant
Senior Creditors ("RELEVANT SENIOR CREDITORS") in
connection with any action under clause 3.8 or clause
8.2(b) of this deed) to place it in funds at least
equal to the amount the Trustee reasonably determines
would be the Core Borrowers' liability; and
(b) need not act until the Senior Creditors or Relevant
Senior Creditors (as the case may be) do so.
Each Senior Creditor or Relevant Senior Creditor (as the case may
be) agrees to fund the Trustee rateably in accordance with its
Share.
IF A SENIOR CREDITOR DOES NOT FUND
3.31 If a Senior Creditor or a Relevant Senior Creditor (as the
case may be) does not fund the Trustee under clause 3.30
within a period determined by the Trustee to be reasonable,
then the Trustee agrees to promptly request each other
Senior Creditor or other Relevant Senior Creditor (as the
case may be) to fund the defaulting Senior Creditor's share.
If one or more other Senior Creditors or Relevant Senior
Creditors (as the case may be) agree to fund the defaulting
Senior Creditor's or Relevant Senior Creditor's (as the case
may be) share, then the obligations of the Senior Creditors
or Relevant Senior Creditors (as the case may be) under
clause 3.30 are taken to be satisfied. Each Senior Creditor
agrees that:
(a) a payment by a Senior Creditor to the Trustee under
this clause 3.31 constitutes a loan by the Senior
Creditor to the defaulting Senior Creditor; and
(b) the loan accrues interest at the rate and in the manner
notified by the paying Senior Creditor to the
defaulting Senior Creditor and the Trustee.
The defaulting Senior Creditor agrees to pay to the Trustee (for
the account of each funding Senior Creditor) on demand from the
Trustee the loan principal and interest on each loan.
CORE BORROWERS' COSTS OBLIGATION NOT AFFECTED
3.32 A payment by a Senior Creditor under clauses 3.28, 3.30 or
3.31 does not relieve the Core Borrowers of their
obligations under clause 12 or any other Obligor of its
obligations under any corresponding provisions of any other
Senior Finance Document.
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COMPLIANCE MAY BE ASSUMED
3.33 In relation to any act of the Trustee, neither the Obligors
nor the Junior Creditors need enquire:
(a) whether the Trustee needed to consult or has consulted
the Senior Creditors; or
(b) whether instructions have been given to the Trustee by
a Majority of Senior Creditors or all Senior Creditors;
or
(c) about the terms of any instructions.
As between the Trustee and the Obligors, all action taken by the
Trustee under the Senior Finance Documents is taken to be
authorised under this deed unless the Core Borrowers have actual
notice to the contrary.
As between the Trustee and the Junior Creditors, all action taken
by the Trustee under this deed is taken to be authorised by the
Senior Creditors unless the Junior Creditors have actual notice
to the contrary.
TRUSTEE IS NOT RESPONSIBLE FOR SENIOR CREDITOR'S BREACH
3.34 The Trustee is not responsible to the Obligors if a Senior
Creditor does not observe its obligations under the Senior
Finance Documents.
DELEGATION BY TRUSTEE
3.35 The Trustee may employ agents and attorneys and may delegate
any of its rights or obligations in its capacity as trustee
for the Senior Creditors without notifying the Senior
Creditors of the delegation.
DUTIES WHEN DELEGATING
3.36 The Trustee agrees to exercise reasonable care in selecting
delegates and to supervise their actions.
RESPONSIBILITY FOR DELEGATES
3.37 The Trustee is responsible for any loss arising due to the
fraud, gross negligence or wilful misconduct of a delegate
or gross or wilful breach by the delegate of their
obligations.
TRUSTEE MAY RELY ON COMMUNICATIONS AND OPINIONS
3.38 In relation to the Senior Finance Documents, the Trustee may
rely:
(a) on any communication or document it believes to be
genuine and correct and to have been signed or sent by
the appropriate person; and
(b) as to legal, accounting, taxation or other professional
matters, on opinions and statements of any legal,
accounting, taxation or professional advisers used by
it.
FORCE MAJEURE
3.39 Despite any other provision of this deed, the Trustee need
not act (whether or not on instructions from one or more of
the Senior Creditors) if it is impossible to act due to any
cause beyond its control (including war, riot, natural
disaster, labour dispute, or law taking effect after the
date of this agreement). The Trustee agrees to notify each
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Senior Creditor promptly after it determines that it is
unable to act.
NO RESPONSIBILITY FOR FORCE MAJEURE
3.40 The Trustee has no responsibility or liability for any loss
or expense suffered or incurred by any party as a result of
its not acting for so long as the impossibility under clause
3.39 (Force majeure) continues. However, the Trustee agrees
to make reasonable efforts to avoid or remove the causes of
non-performance and agrees to continue performance under
this deed promptly when the causes are removed.
AUTHORITY TO EXECUTE
3.41 Each other party to this deed irrevocably authorises the
Trustee to execute any New Obligor Accession Deed signed by
a new Obligor on its behalf.
4 SUBORDINATION
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SUBORDINATION
4.1 Despite any other agreement between a Junior Creditor and an
Obligor but except as permitted by clauses 4.6 and 4.7, each
party agrees with each other party that no part of the
Junior Debt is due for payment or capable of being declared
due for payment unless:
(a) the Senior Debt is satisfied or repaid in full; or
(b) an Event occurs; or
(c) that Junior Debt is refinanced by Qualifying
Subordinated Debt or Consolidated Senior Debt.
RIGHTS AND OBLIGATIONS FOLLOWING AN EVENT
4.2 If an Event occurs, then the Junior Debt is payable
immediately.
4.3 If an Event occurs, then each Junior Creditor agrees, on
request from the Trustee, to:
(a) prove for the whole of its Relevant Junior Debt; and
(b) immediately send to the Trustee a copy of its notice of
proof.
4.4 A Junior Creditor may not prove for its Relevant Junior Debt
except following a request from the Trustee under clause
4.3.
4.5 Except as permitted by clause 4.7, if a Junior Creditor
receives or recovers any money on account of that Junior
Creditor's Relevant Junior Debt (but excluding any payment
to the Junior Financiers under or on account of the Texas
Guarantee) or any amount is paid to any person in connection
with that Junior Creditor's Relevant Junior Debt (excluding
any payment to the Junior Financiers under or on account of
the Texas Guarantee but including, without limitation, to an
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assignee of that Junior Creditor's Relevant Junior Debt),
whether by way of repayment, satisfaction or otherwise and
whether from an Obligor or from any other person, including,
without limitation, a liquidator, provisional liquidator or
administrator of an Obligor, then that Junior Creditor
agrees forthwith to pay to the Trustee for the account of
the Senior Creditors, without the need for any demand, an
amount equal to the lesser of the full amount so received,
recovered or paid and the full amount of the Senior Debt at
that time.
JUNIOR CREDITOR UNDERTAKINGS
4.6 A Junior Creditor may not, without the prior written consent
of the Trustee or, following the occurrence of an Event of
Default, except as directed by the Trustee:
(a) directly or indirectly demand payment of, xxx for,
accept payment or repayment of (except for demands,
suits, payments or repayments which are permitted under
clause 4.7) or in any way allow by reduction of an
Obligor's assets or otherwise, the discharge,
satisfaction or extinguishment of its Relevant Junior
Debt (except as a result of a payment under or on
account of the Texas Guarantee or for the purposes of
exercising rights under the Texas Guarantee); or
(b) vary or amend any agreement or document under which an
Obligor's obligations in respect of its Relevant Junior
Debt arise if such variation or amendment would result
in its Relevant Junior Debt ceasing to be subordinated
to the Senior Debt on the terms of this clause 4; or
(c) set off its Relevant Junior Debt against any
Indebtedness of the Junior Creditor to the Obligor; or
(d) assign, charge or otherwise deal with its Relevant
Junior Debt unless the assignee, chargee or other
person to the dealing (or its trustee or agent) has
agreed to be bound as a Junior Creditor under this deed
and has executed and delivered to the Trustee a New
Creditor Accession Deed or a Deed of Subordination; or
(e) accept the benefit of any guarantee in respect of its
Relevant Junior Debt other than a guarantee which
creates Subordinated Guarantee Debt or in the case of
the Junior Financiers, the Texas Guarantee; or
(f) suffer to exist or take a Security Interest to secure
payment of its Relevant Junior Debt; or
(g) except as permitted by clause 6.3(k), borrow or raise
money from or otherwise become indebted to an Obligor;
or
(h) convert any Junior Debt into shares in an Obligor.
PERMITTED JUNIOR CREDITOR PAYMENTS
4.7 So long as:
(a) no Senior Debt is due and payable but unpaid; and
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(b) no Event of Default or Potential Event of Default has
occurred and is subsisting; and
(c) the payment is permitted under clause 6.5 (except in
the case of a payment in respect of the Intercompany
Loan Debt of TXU8 under TXUA - TXU8 Loan Agreement),
an Obligor may pay, prepay, repay, satisfy or discharge, and a
Junior Creditor (other than Texas) may receive and retain,
payments of interest, payments, prepayments or repayments of
principal and any other amounts which are due and owing on the
Junior Debt (other than on the Texas Indemnity or on any
Subordinated Guarantee Debt) not earlier than the date the same
are due in accordance with or as contemplated by, and in the
amounts contemplated by, the terms of the Junior Finance
Documents (except in the case of the Junior Finance Debt which
may be repaid earlier than the date it is due provided it is
repaid (directly or indirectly) from Qualifying Subordinated
Debt) and the Junior Creditors (other than Texas) may make
demands in respect of, or so as to establish a liability to pay,
any amount so permitted to be paid.
4.8 Except as permitted by clause 4.7 or with the prior written
consent of the Trustee or, following the occurrence of an
Event of Default, as directed by the Trustee, a Junior
Creditor may not take any action to recover the Relevant
Junior Debt including, without limitation, by:
(a) voting for the winding up of an Obligor; or
(b) requisitioning a meeting to consider:
(i) a resolution for the winding up of an Obligor; or
(ii) a scheme of arrangement for an Obligor; or
(iii) a resolution for the appointment of an
administrator to an Obligor; or
(c) applying to the court to wind up an Obligor.
4.9 If a liquidator, provisional liquidator or administrator of
an Obligor sets off against the Relevant Junior Debt any
amounts in respect of which a Junior Creditor is indebted to
the Obligor, then the Junior Creditor indemnifies the Senior
Creditors against Loss they suffer because the amount set
off is not part of its Relevant Junior Debt.
OBLIGORS
4.10 Each Obligor may not, without the consent of the Senior
Creditors:
(a) permit or suffer any guarantee, indemnity or guarantee
and indemnity to be given in respect of the Junior Debt
other than a guarantee or guarantee and indemnity which
creates Subordinated Guarantee Debt or in the case of
the Junior Finance Debt, the Texas Guarantee; or
(b) suffer to exist or grant a Security Interest to secure
payment of the Junior Debt; or
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(c) directly pay (except for payments or repayments which
are permitted under clause 4.7) or in any way reduce
the Obligor's assets to discharge the Junior Debt; or
(d) vary or amend any agreement or document under which the
Obligor's obligations in respect of its Junior Debt
arise if such variation or amendment would result in
its Junior Debt ceasing to be subordinated to the
Senior Debt on the terms of this clause 4; or
(e) set off the Junior Debt against any Indebtedness of the
Junior Creditor to the Obligor; or
(f) enter into any arrangement which results in the Junior
Debt not being subordinated to the Senior Debt on the
terms of this clause 4; or
(g) create, grant, extend or permit to subsist or be
imposed any Security Interest ranking in priority to,
equally with or subsequent to the Senior Debt or any
Security Interest for the Senior Debt; or
(h) take any action to recover any amount owing under or
any amount it is entitled to receive under an
Intercompany Loan Agreement including, without
limitation, by doing any of the things specified in
clause 4.8; or
(i) except as permitted by clause 6.3(k), be the creditor
in respect of any Indebtedness; or
(j) convert any Junior Debt into shares in that Obligor.
4.11 Except as permitted under clause 4.7, each Obligor agrees to
notify the Trustee immediately if it receives a demand
whether direct or indirect for payment of any of the Junior
Debt.
REVOCATION OF APPROVALS
4.12 Any approval given by the Trustee in connection with this
deed immediately terminates if:
(a) a Junior Creditor or an Obligor defaults under this
deed; or
(b) the Obligor is unable to pay its debts as they fall
due; or
(c) an Event occurs; or
(d) the Trustee demands payment of the Senior Debt from an
Obligor in accordance with the Senior Finance
Documents.
PRESERVATION OF SENIOR CREDITOR'S RIGHTS
4.13 No obligation of a Junior Creditor arising under this deed
is released or abrogated, prejudiced or affected by any act
matter or thing that a Senior Creditor may do or omit to do
which but for this provision would or might release,
abrogate, prejudice or affect the obligations of the Junior
Creditor including, without limitation:
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(a) the granting of time, credit or any indulgence or
concession to an Obligor or any Surety by the Trustee
or a Senior Creditor or by any compounding or
compromise, release, abandonment, waiver, variation,
relinquishment, renewal or transfer of any securities,
documents of title, assets or any rights of a Senior
Creditor against an Obligor or any Surety of any other
person or by neglect or omission to enforce any such
rights;
(b) the liquidation, receivership, official management or
administration of an Obligor, any Junior Creditor or
any Surety which is an entity or the bankruptcy or
death of any Surety who is a natural person, or any
Junior Creditor or an Obligor or any Surety entering
into any compromise or assignment of property or scheme
of arrangement or composition of debts or scheme of
reconstruction;
(c) any person giving a guarantee or other Security
Interest in respect of all or any of the Senior Debt;
(d) failure by an Obligor or any Surety or any other person
to provide any Security Interest which ought to be
provided or to have been provided under any agreement
in respect of all or any part of the Senior Debt;
(e) any alteration, addition or variation to any agreement
in respect of all or any part of the Senior Debt;
(f) any Security Interest held or taken at any time by a
Senior Creditor for all or any part of the Senior Debt
being void, defective or informal;
(g) an Obligor or any Surety being discharged from its
obligation to pay all or any of the Senior Debt
otherwise than by payment or satisfaction of those
moneys to a Senior Creditor; or
(h) a Junior Creditor being discharged from its obligations
to a Senior Creditor under this deed.
4.14 If a Senior Creditor holds any other Security Interest for
or right in respect of all or any of the Senior Debt, then:
(a) the Senior Creditor need not resort to that other
Security Interest or right before enforcing its rights
under this deed;
(b) the liability of each Junior Creditor under this deed
is not affected by reason that the other Security
Interest or right is or may be wholly or partly void or
unenforceable.
4.15 This deed does not prejudicially affect and is not
prejudicially affected by any Security Interest or guarantee
held by a Senior Creditor either at the date of this deed or
at any subsequent time.
4.16 Nothing contained in this deed merges, discharges,
extinguishes, postpones, lessens or prejudices any Security
Interest now held or which may subsequently be held or taken
by a Senior Creditor for payment of any of the Senior Debt.
Nor does this deed or any Security Interest:
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(a) affect:
(i) any right or remedy which the Senior Creditor now
has or subsequently may have or be entitled to by
law, equity or statute against any other person as
surety or on any xxxx of exchange, promissory
note, letter of credit or other negotiable
instrument; or
(ii) security to the Senior Creditor for all or part of
the Senior Debt; or
(b) operate as a payment of the Senior Debt until the same
has been actually paid in cash.
Nothing in any Security Interest and no other right or remedy
which a Senior Creditor has or subsequently may have apart from
this deed discharges, extinguishes, postpones, lessens or
otherwise prejudices this deed. A Senior Creditor is not under
any obligation to resort to any Security Interest in priority to
this deed.
4.17 The subordination under this deed is a continuing
subordination and remains in full force until payment in
full of the Senior Debt.
POWER OF ATTORNEY
4.18 Each Junior Creditor irrevocably appoints the Trustee and
each Authorised Officer of the Trustee severally its
attorney.
4.19 Each attorney may:
(a) in the name of the Junior Creditor or the attorney do
anything which the Junior Creditor may lawfully do to
exercise a right of proof of the Junior Creditor
following an Event occurring (including, without
limitation, executing drawdown notices, repayment
notices or any notice in relation to amounts payable
under Intercompany Loan Agreements, executing deeds and
instituting, conducting and defending legal proceedings
and receiving any dividend arising out of that right);
and
(b) delegate its powers (including, without limitation,
this power of delegation) to any person for any period
and may revoke a delegation; and
(c) exercise or concur in exercising its powers even if the
attorney has a conflict of duty in exercising its
powers or has a direct or personal interest in the
means or result of that exercise of powers.
4.20 The Junior Creditor agrees to ratify anything done by an
attorney or its delegate in accordance with clause 4.19.
4.21 The Junior Creditor may not exercise the right of proof
referred to in clause 4.19 independently of the attorney.
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APPLICATION AS BETWEEN JUNIOR FINANCE DEBT AND TEXAS INDEMNITY
4.22 If the Senior Debt has been paid in full, the provisions of
clause 4 apply (whether or not an Event has occurred) as
between the Junior Financiers, Texas and the Obligors as if:
(a) a reference to the Senior Creditors were a reference to
the Junior Financiers;
(b) a reference to the Senior Debt were a reference to the
Junior Finance Debt;
(c) a reference to the Junior Debt were a reference to the
Texas Indemnity and the Intercompany Loan Debt of TXU8
under the TXUA - TXU8 Loan Agreement;
(d) a reference to the Trustee were a reference to the
Junior Financiers; and
(e) a reference to the Junior Creditors were a reference to
Texas and the Obligors.
TEXAS GUARANTEE
4.23 Nothing in this clause 4 shall restrict the rights of the
Junior Financiers under the Texas Guarantee in respect of
any amount which is scheduled to be due in accordance with
the Junior Finance Documents and, but for this clause 4,
would be due and payable to the Junior Financiers.
CORPORATIONS LAW
4.24 This clause 4 is intended to operate as a "debt
subordination" (as defined in section 563C(2) of the
Corporations Law) by each Junior Creditor.
OBLIGORS
4.25 Each Obligor acknowledges and agrees that any amendment or
variation to any Senior Finance Document does not affect,
prejudice or relieve any of the Obligors of their respective
obligations under the Intercompany Loan Agreements.
TEXAS
4.26 The parties acknowledge that the only obligations incurred
by Texas in entering into this deed are as a Junior Creditor
and that those obligations only arise to the extent to which
Texas has any right (whether arising by indemnity,
contribution, subrogation or otherwise) against a Core
Borrower or Eastern in connection with any payment by Texas
under the Texas Guarantee.
NOTICE TO JUNIOR CREDITORS
4.27 Each Obligor undertakes to notify the relevant Junior
Creditors as soon as it becomes aware of:
(a) any Senior Debt being due and payable but unpaid;
(b) the occurrence of any Event of Default or Potential
Event of Default; or
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(c) it being precluded by clause 6 from making any payment
or repayment in respect of the Junior Debt owing to
those Junior Creditors.
5 REPRESENTATIONS AND WARRANTIES
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REPRESENTATIONS AND WARRANTIES
5.1 Each Obligor represents and warrants (except in relation to
matters disclosed to the Trustee by the Obligor and accepted
by the Trustee in writing) that:
(a) (INCORPORATION AND EXISTENCE) it has been incorporated
as a company limited by shares in accordance with the
laws of its place of incorporation, is validly existing
under those laws and has power and authority to carry
on its business as it is now being conducted; and
(b) (POWER) it has power (including, without limitation,
power under the Partnership Deed, in the case of each
Core Borrower) to enter into the Transaction Documents
to which it is a party and observe its obligations
under them; and
(c) (AUTHORISATIONS) it has in full force and effect the
Authorisations necessary for it to enter into the
Transaction Documents to which it is a party, to
observe its obligations and exercise its rights under
them and to allow them to be enforced; and
(d) (VALIDITY OF OBLIGATIONS) its obligations under the
Transaction Documents to which it is a party are valid
and binding and are enforceable against it in
accordance with their terms except to the extent
limited by equitable principles and laws affecting
creditors' rights generally; and
(e) (NO CONTRAVENTION OR EXCEEDING POWER) the Transaction
Documents to which it is a party and the transactions
under them which involve it do not :
(i) contravene its constituent documents (if any); or
(ii) contravene any law or obligation by which it is
bound or to which any of its assets are subject
which, in the case of the Licences or the Material
Contracts to which it is a party, has or is likely
to have a Material Adverse Effect; or
(iii) cause a limitation on its powers or the powers of
its directors to be exceeded; and
(f) (ACCOUNTS) its most recent audited Financial Statements
last given to the Trustee are a true and fair statement
of its financial position as at the date to which they
are prepared and disclose or reflect all its actual and
contingent liabilities as at that date; and
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(g) (CONSOLIDATED ACCOUNTS) if it is required to prepare
consolidated Financial Statements under the
Corporations Law, the most recent audited consolidated
Financial Statements of the economic entity constituted
by it and the entities which it controls last given to
the Trustee are a true and fair statement of the
economic entity's financial position as at the date to
which they are prepared and disclose or reflect all the
economic entity's actual and contingent liabilities as
at that date; and
(h) (NO MATERIAL CHANGE) there has been no change in its
financial position since the date to which its
Financial Statements last given to the Trustee were
prepared which is likely to have a Material Adverse
Effect; and
(i) (NO MATERIAL CHANGE TO ECONOMIC ENTITY) if it is
required to prepare consolidated Financial Statements
under the Corporations Law, there has been no change in
the consolidated financial position of the economic
entity constituted by it and the entities which it
controls since the date to which the consolidated
Financial Statements of the economic entity last given
to the Trustee were prepared which is likely to have a
Material Adverse Effect; and
(j) (EVENT OF DEFAULT) no Event of Default which has not
been waived or (to the best of its knowledge,
information and belief having made due enquiry)
Potential Event of Default (except if notice of that
Potential Event of Default has been given to the
Trustee) continues unremedied; and
(k) (DEFAULT UNDER LAW - MATERIAL ADVERSE EFFECT) it is not
in default under any Transaction Document to which it
is a party or in breach of a law or obligation
affecting it or its assets in a way which is or has
likely to have a Material Adverse Effect; and
(l) (LITIGATION) there is no proceeding or any pending or
(to the best of its knowledge, information and belief
having made due enquiry) threatened proceeding
affecting it or any of its assets before a court,
Governmental Agency, commission or arbitrator which
could reasonably be expected to result in a Material
Adverse Effect; and
(m) (NOT A TRUSTEE) it does not enter into any Transaction
Document as trustee; and
(n) (OWNERSHIP OF PROPERTY) it is the beneficial owner of
and has good title to all property held by it or on its
behalf and all undertakings carried on by it free from
Security Interests other than Permitted Security
Interests; and
(o) (BENEFIT) it benefits by entering into the Transaction
Documents to which it is a party; and
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(p) (SOLVENCY) no Insolvency Event has occurred and is
continuing in respect of it; and
(q) (NO BENEFIT TO RELATED PARTY) it has not contravened
and will not contravene section 243H or section 243ZE
of the Corporations Law by entering into any
Transaction Document or participating in any
transaction in connection with a Transaction Document;
and
(r) (NO IMMUNITY) it has no immunity from the jurisdiction
of a court or from legal process; and
(s) (YEAR 2000) it is Year 2000 Compliant; and
(t) (INFORMATION) to the best of its knowledge and belief,
having made due enquiry, all historical information
provided to each Senior Creditor or a Related Entity of
any of them by or on behalf of an Obligor in connection
with the Transaction Documents is true and accurate in
all material respects as at the date when such
information was provided and, to the best of its
knowledge, there are no material facts or circumstances
which have not been disclosed to each Senior Creditor
and which, if disclosed, might reasonably be expected
to significantly adversely affect the decision of a
person considering whether to provide financial
accommodation to an Obligor and all forecasts and
projections have been made in good faith; and
(u) (SHAREHOLDINGS) from and including the date of
Financial Close:
(i) Texas is the ultimate holding company of the Core
Borrowers; and
(ii) the Core Borrowers directly or indirectly own and
control all of the issued shares in each other
Obligor; and
(v) (CONTROL) Texas ultimately controls the composition of
the board of directors of each Obligor and no person
other than Texas and the board of directors of the
relevant Obligor has management and operational control
of an Obligor; and
(w) (SUBSIDIARIES) all Subsidiaries of the Core Borrowers
are Obligors other than the Excluded Subsidiaries and
the Core Borrowers do not have any Subsidiaries other
than those notified by them to the Trustee; and
(x) (RANKING) its obligations under the Senior Finance
Documents to which it is a party rank in all respects:
(i) at least equally with all its other unsecured and
unsubordinated indebtedness (actual or contingent
and whether present or future), except liabilities
mandatorily preferred by law; and
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(ii) in terms of repayment or payment in winding up, in
priority to all Subordinated Indebtedness and
other Junior Debt; and
(y) (TAXATION) to the best of its knowledge, information
and belief having made due enquiry, it has complied
with all material taxation laws in all jurisdictions in
which it is subject to Taxes, it has paid all material
Taxes due and payable by it, other than Contested
Taxes; and
(z) (INSURANCE) all insurances considered appropriate by
each Obligor and the Trustee and which are available on
reasonable and commercial terms to that Obligor's:
(i) business, assets and operations, including loss of
revenue arising from loss or damage to its own
assets or the assets of all suppliers or
customers; and
(ii) public liability in regard to all operations in
respect of general and products liability,
including the failure of gas supply liability,
bushfire liability; and
(iii) professional indemnity liability; and
(iv) directors and officers liability,
have been effected and are in full force and effect, it has not
made any material misstatement or misrepresentations or omitted
to disclose any material facts to the insurers or their agents in
relation thereto and it is not aware of any reason giving rise to
any right or likelihood that any such policies may be terminated
or that any insurers thereunder will refuse to pay any claim when
made; and
(aa) (INTELLECTUAL PROPERTY) it owns, or has the right and
licence to use, all trade secrets, confidential
information, know-how, patents, trade marks, designs
(whether registered or unregistered), copyright, and
computer programs necessary for the conduct of the Core
Business; and
(bb) (ENVIRONMENTAL LAWS) the occupation, use and
development of each of its Properties complies with all
Environmental Laws and all Authorisations required
under any Environmental Law relating to those
Properties are in full force and effect other than
non-compliances which are neither likely to have a
Material Adverse Effect nor likely to create any
potential liability for the Senior Creditors; and
(cc) (LICENCES) the Licences are validly issued under the
Gas Industry Xxx 0000, the Electricity Industry Xxx
0000 or other relevant legislation, as the case may be,
and are in full force and effect and, to the best of
its knowledge, no event or circumstance has arisen or
is likely to arise which may give rise to any right to
revoke, rescind, terminate or suspend any Licence other
than an event or circumstance in respect of which:
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(i) the ORG has issued a `no action' letter which is
still in effect indicating that the ORG will not
be taking any action; or
(ii) there has been insufficient time to obtain a `no
action' letter from the ORG and in respect of
which it has been demonstrated to the Trustee that
there has been diligent pursuit of the issue by
the ORG of a `no action' letter and the remedy of
any actual or potential contravention of a Licence
condition arising from the event or circumstance
and that a `no action' letter is likely to be
issued by the ORG; or
(iii) the event or circumstance could not reasonably be
expected to cause the ORG to exercise any right to
revoke, rescind, terminate or suspend any Licence;
and
(dd) (OTHER MATERIAL AUTHORISATIONS) in the case of the
Licence Holders, no other material Authorisations are
required which have not been or cannot now be obtained
by it to enable it to conduct its business; and
(ee) (SINGLE PURPOSE COMPANIES) it does not carry on any
business activities other than activities in connection
with the Core Business; and
(ff) [Deleted]; and
(gg) (MATERIAL REGULATORY INSTRUMENTS AND CONTRACTS) in the
case of each Licence Holder, it is not:
(i) (without affecting clause 5.1(cc)), in breach of
any Material Regulatory Instrument which has or is
likely to have a Material Adverse Effect; and
(ii) in default under any Material Contract to which it
is a party where such default has or is likely to
have a Material Adverse Effect; and
(hh) (PARTNERSHIP) the Partnership is a limited partnership
established pursuant to the Partnership Deed and within
the meaning of and validly constituted and existing and
registered under Part 3 of the Partnership Xxx 0000 of
Victoria; and
(ii) (EXCLUDED SUBSIDIARIES) none of the Excluded
Subsidiaries owns any assets (other than assets
relevant to its status as a body corporate and which
have a nominal value) or conducts or carries on any
business activities.
CONTINUATION OF REPRESENTATIONS AND WARRANTIES
5.2 The representations and warranties in clause 5.1 are taken
also to be made on the date of each Drawdown Notice and on
each Drawdown Date and on the date of delivery of a
compliance certificate in accordance with clause 6.1(l) of
this deed by reference to the then current circumstances.
Each Obligor agrees to notify the Trustee of anything that
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happens that would mean it could not truthfully repeat all
its representations and warranties in this clause 5 on the
date of each Drawdown Notice, on each Drawdown Date and on
the date of delivery of a compliance certificate in
accordance with clause 6.1(l) of this deed by reference to
the then current circumstances. A notification under this
clause 5.2 does not limit the Trustee's rights under clause
8.
6 UNDERTAKINGS
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GENERAL UNDERTAKINGS
6.1 Each Obligor undertakes to:
(a) (ACCOUNTING RECORDS) keep proper accounting records and
ensure that each of its Subsidiaries does the same; and
(b) (INFORMATION) give the Trustee any document or other
information that the Trustee reasonably requests from
time to time; and
(c) (COPIES)give the Trustee sufficient copies of any
communication or document it is required to give the
Trustee so as to enable the Trustee to give one copy to
each Senior Creditor; and
(d) (STATUS CERTIFICATES) on reasonable request from the
Trustee if the Trustee considers in good faith that an
Event of Default or Potential Event of Default may have
occurred, give the Trustee a certificate signed by two
of its directors which states whether an Event of
Default or Potential Event of Default continues
unremedied; and
(e) (MAINTAIN AUTHORISATIONS) obtain, renew on time and
comply with the terms of, each Authorisation necessary
for it to enter into the Transaction Documents to which
it is a party, to observe its obligations and exercise
its rights under them and to allow them to be enforced;
and
(f) (ANNUAL ACCOUNTS) give audited Financial Statements of
each Material Operating Subsidiary for each Financial
Year to the Trustee as soon as practicable and in any
event by no later than 90 days after the end of that
year; and
(g) (ANNUAL CONSOLIDATED ACCOUNTS) give the audited
consolidated Financial Statements of the Group for each
Financial Year to the Trustee as soon as practicable
and in any event by no later than 90 days after the end
of that year; and
(h) (HALF YEARLY ACCOUNTS) give the unaudited Financial
Statements of each Material Operating Subsidiary for
the first half of each Financial Year to the Trustee as
soon as practicable and in any event by no later than
60 days after the end of that half year; and
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(i) (HALF YEARLY CONSOLIDATED ACCOUNTS) give the unaudited
consolidated Financial Statements of the Group for the
first half of each Financial Year to the Trustee as
soon as practicable and in any event by no later than
60 days after the end of that half year; and
(j) (QUARTERLY ACCOUNTS) give unaudited quarterly
consolidated management accounts for the Group (in a
form approved by the Trustee) certified by an
Authorised Officer of the Core Borrowers for the
Quarters ending 31 March and 30 September in each year
to the Trustee as soon as practicable and in any event
by no late than 60 days after the end of that Quarter;
and
(k) (FINANCIAL PROJECTIONS) give annual financial
projections (on a consolidated basis incorporating
profit and loss, balance sheet and cashflow projections
together with a brief commentary and listing the
assumptions made in calculating those projections) for
the Group for each Financial Year to the Trustee as
soon as practicable and in any event by no later than
the commencement of that Financial Year; and
(l) (COMPLIANCE CERTIFICATE) give to the Trustee promptly
after the release of the management accounts for each
Quarter, a certificate which certificate must:
(i) be signed by an Authorised Officer of the Core
Borrowers; and
(ii) set out in reasonable detail the computations and
financial and other information necessary to
establish compliance by the Core Borrowers with
the financial undertakings in clause 6.4
(Financial Undertakings); and
(iii) state whether any Event of Default or (to the
best of its knowledge, information and belief
having made due enquiry) Potential Event of
Default has occurred and is subsisting; and (iv)
in the case of the certificate delivered in
connection with the management accounts for the
end of a Financial Year, be subsequently
confirmed in writing by its auditors at the time
of delivery of the annual Financial Statements as
being correct so far as it relates to compliance
by the Core Borrowers with the financial
undertakings in clause 6.4 (Financial
Undertakings); and
(v) [Deleted]; and
(vi) state the amount and term of the Hedge Agreements
entered into by the Core Borrowers and Eastern and
that the Core Borrowers and Eastern are in
compliance with their obligations under clause
6.2; and
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(m) (FINANCIAL STATEMENTS) ensure that the Financial
Statements referred to above:
(i) are prepared in accordance with Australian
Accounting Standards; and
(ii) at the time of delivery, give a true and fair view
of the state of affairs of the Group or the
Material Operating Subsidiary, as the case may be,
as at the date on which, and for the period in
respect of which, they are prepared or an
explanation of any divergence between the
Financial Statements as presented and such
a true and fair view; and
(n) (INCORRECT REPRESENTATION OR WARRANTY) immediately upon
becoming aware notify the Trustee if any representation
or warranty made by it or on its behalf in connection
with a Senior Finance Document is found to be
materially incorrect or misleading; and
(o) (ENSURE NO EVENT OF DEFAULT) do everything within its
powers necessary to ensure that no Event of Default
occurs; and
(p) (NOTIFY DETAILS OF EVENT OF DEFAULT OR POTENTIAL EVENT
OF DEFAULT) if an Event of Default or Potential Event
of Default occurs, upon becoming aware, notify the
Trustee giving full details of the event and any step
taken or proposed to remedy it; and
(q) (LITIGATION) promptly notify the Trustee in writing and
in reasonable detail, and keep the Trustee informed, of
any litigation or administrative or arbitration or
other proceedings before or of any Governmental Agency,
court, commission or arbitrator taking place,
commenced, pending or, to the best of its knowledge,
threatened against it or any of its assets:
(i) in the case of a Licence Holder, under section 36
of the Office of the Regulator-General Xxx 0000;
or
(ii) in the case of a Licence Holder, under the
Electricity Industry Xxx 0000, Gas Industry Xxx
0000 or the Gas Pipelines Access Law in relation
to a "civil penalty provision", "conduct
provision" or "regulatory provision" (as defined
in those Acts or Law); or
(iii) which could reasonably be expected to result in
it incurring a liability in excess of $10,000,000
or which has or is likely to have a Material
Adverse Effect; and
(r) (CONSTITUTION) promptly notify the Trustee of any
proposal to change to its constitution; and
(s) (ENVIRONMENTAL MATTERS) promptly notify the Trustee of
any breach or potential breach of any Environmental Law
or other law or of any complaint or the issuing of any
proceedings or notice or requirements against or upon
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it in respect of, or which is or is likely to result
in, any potential environmental liability or
contravention of any Environmental Law which has or
would have a Material Adverse Effect; and
(t) (REGULATORY) in the case of the Licence Holders,
provide notice to the Trustee as soon as it becomes
aware of any of the following:
(i) any material breach of the Gas Industry Xxx 0000,
the Electricity Industry Xxx 0000, the Office of
the Regulator-General Xxx 0000, the Gas Pipelines
Access Law, the Pipelines Xxx 0000, the Gas Safety
Xxx 0000, National Electricity Law or the
Electricity Safety Xxx 0000;
(ii) any breach of a material term of any Licence;
(iii) any actual or proposed amendment, variation or
cancellation of any of the Licences;
(iv) any material breach of a Material Regulatory
Instrument or a Material Contract to which it is
a party;
(v) any actual or proposed material amendment or
variation of any Material Contract to which it is
a party;
(vi) any actual or proposed issue to a third party of a
distribution licence in respect of a Distribution
Area;
(vii) in relation to a class of customers, any actual
or proposed issue to a third party of a gas retail
licence in respect of a class of customers in the
Franchise Area prior to those customers being
considered contestable;
(viii) any order or provisional order under section 35
of the Office of Regulator-General Xxx 0000 made,
served or threatened to be made or served on a
Licence Holder or its business by the ORG;
(ix) any actual or proposed inquiry under Part 4 of the
Office of the Regulator-General Xxx 0000
concerning a Licence Holder which is likely to
have a Material Adverse Effect;
(x) any actual or proposed price determination under
Part 3 of the Office of the Regulator-General Xxx
0000 concerning the Licence Holder prices or
charges for distribution services, retail services
or other services and cost pass throughs which
determination (if made) is likely to have a
Material Adverse Effect;
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(xi) the ORG is considering or threatening to appoint
an administrator to all or any part of the
business of a Licence Holder under the Gas
Industry Xxx 0000 or the Electricity Industry Act
1993 or other equivalent legislation in any other
relevant jurisdiction;
(xii) the possible or threatened suspension of a
Licence Holder under or pursuant to any Material
Regulatory Instrument or relevant statute; and
(u) (NOTICES) in the case of any Licence Holder, promptly
provide to the Trustee a copy of any notice given to it
under clause 3.4 of a Distribution Licence or a Retail
Licence; and
(v) (PERMITTED DISPOSALS) promptly notify the Trustee of
any Permitted Disposals (other than disposals in the
ordinary course of business) of any single asset or
assets having an aggregate value which exceeds
$10,000,000 in any Financial Year and provide the
Trustee with such information about such Permitted
Disposals as the Trustee reasonably requests; and
(w) (CORE BUSINESS) engage only in, and continue to engage
only in, activities which relate to the Core Business;
and
(x) (LICENCES) in the case of the Licence Holders, they
will:
(i) comply in all material respects with the
legislation referred to in clause 6.1(t)(i) and
the Material Regulatory Instruments where failure
to comply has or is likely to have a Material
Adverse Effect;
(ii) comply with the terms and conditions of the
Licences except in respect of an event or
circumstance in respect of which:
(A) the ORG has issued a "no action" letter,
which is still in effect, to a Licence Holder
indicating that the ORG will not be taking
any action in respect of that event
or circumstance; or
(B) there has been insufficient time to obtain a
"no action" letter from the ORG and the
Licence Holder has demonstrated to the
Trustee that it has been diligently pursuing
the issue by the ORG of a "no action" letter
and the remedy of any actual or potential
contravention of a Licence condition arising
from the event or circumstance and that a
"no action" letter is likely to be issued by
the ORG; and
(iii) take all necessary steps to remedy any breach by
the Licence Holder of any Material Regulatory
Instrument, any Licence or any Material Contract
55
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to which it is a party or any breach of the
legislation referred to in clause 6.1(t)(i)
without delay; and
(y) (INFRASTRUCTURE) in the case of any Obligor which holds
a Distribution Licence , protect, keep, maintain and
preserve the Infrastructure in good working order and
condition and renew or replace when worn out, obsolete
or destroyed all present or future components of the
Infrastructure which are necessary for the conduct of
the Core Business; and
(z) (GOOD STANDING) maintain its good standing, ensure that
it remains entitled to carry on business and own
property in each jurisdiction in which such entitlement
is necessary; and
(aa) (LAWS) comply at all times with the requirements of all
applicable laws and the lawful orders or decrees of any
Governmental Agency where failure to comply is likely
to have a Material Adverse Effect; and
(bb) (AUTHORISATIONS) in the case of the Licence Holders,
promptly obtain, maintain and renew on time each
Authorisation to be obtained by it which is necessary
for carrying on its Core Business; and
(cc) (TAXES) pay when due all Taxes payable by it, other
than Contested Taxes; and
(dd) (BUSINESS) ensure that its business is conducted in a
proper and efficient manner in accordance with prudent
business practices and in accordance with legislation
referred to in clause 6.1(t)(i), the Licences, the
Material Regulatory Instruments, the Material Contracts
and Good Operating Practice; and
(ee) (COPIES) in the case of the Core Borrowers and each
Material Operating Subsidiary, promptly deliver to the
Trustee a copy of each report, statement or notice
given to its shareholders in their capacity as such
where such report, statement or notice is required by
law or regulation to be given to such shareholders; and
(ff) (INTELLECTUAL PROPERTY) in the case of the Licence
Holders, maintain, preserve and protect all copyrights,
patents, trade marks (whether registered or common law
marks), trade names, trade secrets, confidential
information, know-how and other intellectual property
material to its business in accordance with prudent
business so that the business carried on in connection
with them may be properly and advantageously conducted
at all times; and
(gg) (INSURANCE)
(i) keep all of its property and assets insured to the
extent it is insurable on reasonable and
commercial terms with insurers and on terms
approved by the Trustee (which approval may not be
unreasonably withheld):
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(A) for its full insurable value on a replacement
and reinstatement basis and revenue in
respect of revenue less variable expenses;
and
(B) such insurance to be against fire, explosion
and other risks which a prudent owner of
property of a similar type to that being
insured would insure and any other risks
reasonably specified by the Trustee with a
policy sum insured of not less than the
aggregate of the value of assets and
insurable revenue; and
(ii) maintain insurance for general and products
liability including failure to supply and in a
form usual to the risks insured by a prudent
operator and in a manner reasonably specified by
the Trustee for an indemnity limit of not less
than A$500,000,000 for any one occurrence; and
(iii) maintain insurance for professional indemnity in
the form usual to the risks insured by prudent
operators and in a manner reasonably specified by
the Trustee for an indemnity limit of not less
than A$50,000,000; and
(iv) maintain insurance for directors and officers
liability in the form usual to the risks insured
by prudent operators in a manner reasonably
specified by the Trustee for an indemnity limit of
not less than A$100,000,000; and
(v) arrange all insurance policies in such a way to
incorporate reasonable deductibles or self
insurance retentions and as may be agreed between
the Core Borrowers and the Trustee certain assets
such as pipelines may be self insured for material
damage but not for business interruption; and
(vi) maintain with insurers approved by the Trustee
(which approval may not be unreasonably withheld),
workers compensation, public liability and other
insurances which a prudent person engaged in a
similar business or undertaking to that of the
Obligor would effect or which are reasonably
specified by the Trustee; and
(vii) arrange the insurances referred to in paragraphs
(A) and (B) above to include the interests of the
Trustee and to specify the terms of claims
management and payment procedures agreed by the
Trustee with the Obligors; and
(viii) if requested by the Trustee, deposit with the
Trustee all insurance policies and certificates of
insurance in connection with or comprising any of
the properties or assets or liabilities of the
Obligors; and
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(ix) pay each insurance premium in a manner prescribed
by the insurers to ensure the continuity of cover
and, on request from the Trustee, produce receipts
for the payment; and
(x) not do or permit anything to be done or fail to do
anything which prejudices any insurance; and
(xi) immediately rectify anything which might prejudice
any insurance and immediately reinstate the
insurance if it lapses; and
(xii) not, without the consent of the Trustee,
materially restrict the coverage under, cancel or
allow to lapse insurance in connection with any of
its property, assets and liability; and
(xiii) notify the Trustee immediately when an event
occurs which gives rise or might give rise to a
claim exceeding $5,000,000 under or which could
materially prejudice a policy of insurance
required by this clause or if any policy of
insurance required by this clause is cancelled;
and
(xiv) [Deleted]; and
(hh) [Deleted]; and
(ii) [Deleted]; and
(jj) [Deleted]; and
(kk) (GROUP RELATIONS) except as permitted under clause 4,
in relation to any Indebtedness from one Obligor to
another Obligor, not take any action or bring any
proceedings in respect of any money owing or due for
payment in relation thereto or any failure to comply
with any obligations thereunder without the prior
written consent of the Trustee; and
(ll) (MATERIAL CONTRACTS) ensure that each Material Contract
to which it is a party remains in full force and effect
(except where it is discharged or terminated by
performance in accordance with its terms); and
(mm) [Deleted]; and
(nn) [Deleted]; and
(oo) [Deleted]; and
(pp) [Deleted]; and
(qq) (TXU8 LOAN): ensure that at all times the Indebtedness
owed by the TXU8 Borrowers to TXU8 under the TXU8 Loan
Agreement (after deducting any Indebtedness owing by
TXU8 to the TXU8 Borrowers ) exceeds the amount of the
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Consolidated Senior Debt less the Amount Owing to any
Transactional Bank in respect of or in connection with
any Transactional Banking Facility; and
(rr) (TXU8 BORROWERS): ensure that all Obligors (other than
the Core Borrowers, Holdco and TXUA) are jointly and
severally liable for the Indebtedness owing to TXU8
under the TXU8 Loan Agreement; and
(ss) (EASTERN NOTE ISSUE): use its best endeavours to
refinance and replace by 30 June 2000 the Eastern Notes
issued by Eastern as at the Effective Date with
Indebtedness incurred by the Core Borrowers; and
(tt) (STATEMENT OF POLICY AND PRINCIPLES): notify the
Trustee of any change in the Group's statement of
policy and principles in relation to energy trading
from that in existence as at the Effective Date and
deliver a copy of the revised statement to the Trustee
as soon as practicable after the change occurs.
CORE BORROWER'S AND EASTERN'S HEDGE UNDERTAKINGS
6.2 The Core Borrowers and Eastern undertake as follows:
(a) (PERFORM XXXXXX): they will perform and observe all of
the obligations on their part contained in the Hedge
Agreements referred to in this clause 6.2;
(b) (MINIMUM HEDGING): with effect on and from the
Effective Date, they will have in force Hedge
Agreements with financial institutions under which the
Group's Interest expense in respect of not less than
50% of the aggregate of all Indebtedness of the Group,
with a maturity, program life or availability period of
more than 364 days outstanding from time to time, is
hedged at all times for a period not less than three
years.
If the Interest payable under an instrument in respect of
Indebtedness is calculated by reference to a fixed rate and not a
variable rate, the instrument shall be deemed to be a Hedge
Agreement for the purpose of this paragraph;
(c) (XXXX TO MARKET): notwithstanding any other term in any
Senior Finance Document and excluding any Hedge
Agreements in place as at the Effective Date, the Core
Borrowers and Eastern shall not be obliged to enter
into any Hedge Agreement which would require the Core
Borrowers and Eastern under United States or Australian
generally accepted accounting principles, to xxxx to
market the obligations under any one or more Hedge
Agreements;
(d) (TERMINATION): they will not terminate or close out or
consent or agree to the termination or closing out of
any of the Hedge Agreements to which they are a party
as at the Effective Date prior to their stated maturity
dates; and
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(e) (MAXIMUM HEDGING): the Core Borrowers may enter into
hedging arrangements with Hedge Counterparties not
otherwise hedged in accordance with this clause 6.2 but
must not at any time enter into interest rate hedging
arrangements to hedge in excess of 100% of the Group's
Interest expense in respect of the Indebtedness of the
Group.
ACCESSION OF HEDGE COUNTERPARTIES
6.2A
No financial institution providing hedging facilities which has
not agreed to subject itself to the terms of this deed as a Hedge
Counterparty will be entitled to share in any of the arrangements
constituted by this deed in respect of the Hedge Liabilities.
UNDERTAKING OF HEDGE COUNTERPARTIES
6.2B
Except as the Majority of Senior Creditors have previously
consented to in writing, no Hedge Counterparty will:
(a) demand (other than as may be necessary in order to
exercise a right to terminate or close out any hedging
transaction as provided in and permitted under clause
6.2B(b)) or receive payment, prepayment or repayment
of, or any distribution in respect of, or on account
of, any Hedge Liabilities in cash or in kind, or apply
any money or property in or towards the discharge of
any Hedge Liabilities except:
(i) for scheduled payments arising under the terms of
the Hedge Agreements; and/or
(ii) for the proceeds of enforcement of this deed
received and applied in accordance with the terms
of this deed and any other Senior Finance
Document;
(b) exercise any right to terminate or close out any
hedging transaction under the Hedge Agreements prior to
its stated maturity unless:
(i) the Core Borrowers or Eastern (as the case may be)
have failed to make any payment due under the
Hedge Agreement after any grace periods applicable
thereto and such default is not cured within 5
Business Days of notice of such default being
given to the Trustee; or
(ii) the Trustee has made a declaration under clause
8.2(a) of this deed in respect of the Amount Owing
to all Senior Creditors; or
(iii) the Hedge Counterparty is entitled to exercise
such a right under section 5(b)(i) (Illegality) of
any Hedge Agreement which is based on the master
agreement prepared by the International Swap
Dealers Association or the corresponding provision
of any other Hedge Agreement; or
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(c) discharge all or any part of the Hedge Liabilities by
set-off, any right of combination of accounts or
otherwise except if and to the extent that those Hedge
Liabilities are permitted to be paid under paragraph
(a) above; or
(d) permit to subsist or receive after the date of
Financial Close any Security Interest or any financial
support (including ,without limitation, the taking of
any participation, the giving of any guarantee,
indemnity or other assurance against loss, or the
making of any deposit or payment) for, or in respect
of, any of the Hedge Liabilities other than under this
deed.
NOTIFICATION OF HEDGE EXPOSURES
6.2C
Each Hedge Counterparty must, on request by the Trustee following
the occurrence of an Event of Default or Potential Event of
Default, give written notice to the Trustee certifying its Hedge
Exposure as at the date of the notice.
NEGATIVE UNDERTAKINGS
6.3
Each Obligor undertakes that it will not:
(a) (ENCUMBRANCES): create or allow to exist or subsist any
Security Interest on the whole or any part of its
present or future property, except for Permitted
Security Interests; and
(b) (DEBT RESTRICTION): in the case of:
(i) each Obligor other than the Core Borrowers and
TXU8, without the prior written consent of the
Trustee (acting on the instructions of the
Majority of Senior Creditors), incur any
Indebtedness other than Permitted Indebtedness;
and
(ii) any Obligor, without the prior written consent of
the Trustee (acting on the instructions of the
Majority of Senior Creditors), incur any
Indebtedness (other than the Junior Finance Debt
or any Indebtedness incurred by an Obligor under
any lease or licence which it is permitted to
enter into in accordance with clause 6.3(t)
(except for a lease or licence permitted under
clause 6.3(t)(iii) and (iv))) which is otherwise
permitted under this deed to be incurred in favour
of a creditor if that creditor has:
(A) any interest in or rights over (including,
without limitation, a Security Interest) any
assets owned or leased by, or licensed to, or
otherwise used by the Group; or
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(B) the benefit of any guarantee, indemnity,
letter of credit, legally binding letter of
comfort or suretyship, put option or any
similar instrument or obligation ("SUPPORT")
in connection with that Indebtedness,
unless the Trustee on behalf of the Senior Creditors is granted
an equivalent interest in or rights over such assets or Support
(as the case may be); and
(iii) TXU8, incur any Indebtedness other than Permitted
Indebtedness permitted under paragraph (a),(b),
(c) and (k) of the definition of "Permitted
Indebtedness"; and
(c) (DISPOSALS OF ASSETS): sell, transfer or otherwise
dispose of any asset (whether in a single transaction
or in a series of transactions and whether voluntarily
or involuntarily and including by disposal of an asset
which is subsequently leased-back):
(i) which is an interest in a Licence or Material
Contract to which it is a party (except a sale,
transfer or other disposal from an Obligor to
another Obligor); or
(ii) any other asset unless it is a Permitted Disposal,
provided that the Senior Creditors shall reasonably consider (but
without any obligation to approve) any sale and lease-back
proposal if the Trustee has received:
(iii) a copy of the documents relevant to the
transaction;
(iv) a satisfactory opinion from an Australian law firm
or accounting firm as to the tax implications of
the transaction;
(v) in circumstances where the Trustee's legal counsel
are of the view that there are Australian taxation
issues and have recommended that a ruling be
obtained from the Australian Taxation Office, a
favourable ruling from the Australian Taxation
Office; and
(vi) evidence that there will be no adverse impact on
the cashflow of the Obligors or the rights of the
Senior Creditors under the Transaction Documents;
and
(d) (SECURITISATION): assign, sub-participate an interest
in, otherwise dispose of, or create or allow to exist
any Security Interest over, receivables arising from
network charges, or any other receivables or other
monetary assets except for a securitisation programme
where the proceeds received or receivable by the Group
are applied to permanently repay and reduce Senior Debt
and provided that such securitisation programme
constitutes a Permitted Disposal; and
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(e) (ENVIRONMENTAL LAW): by any act or omission or series
of acts or omissions breach any Environmental Law if
the breach has or is likely to have a Material Adverse
Effect; and
(f) (SPECULATIVE TRANSACTIONS): engage in or enter into any
Derivative Transaction or any similar transaction,
including in respect of energy trading, other than
under Hedge Agreements, unless that transaction would
be a transaction which would ordinarily be carried out
by a prudent, responsible company carrying on a major
utilities business and be in accordance with Good
Operating Practice; and
(g) (LICENCES): in the case of the Licence Holders, vary or
allow to be varied in any material respect a Licence
without the prior written consent of the Trustee
(acting on the instructions of the Majority of Senior
Creditors) (such consent not to be unreasonably
withheld); and
(h) (VARIATION OF AGREEMENTS): without the prior written
consent of the Trustee (acting on the instructions of
the Majority of Senior Creditors):
(i) vary or allow to be varied any Intercompany Loan
Agreement or vary or allow to be varied in any
material adverse respect any other Material
Contract to which it is party; or
(ii) cancel, revoke, surrender or repudiate any
Material Contract to which it is a party; or
(iii) terminate, permit the termination of or do
anything or refrain from doing anything which
would entitle any other person to terminate any
Material Contract to which it is a party (other
than discharge by performance in accordance with
its terms) unless it is replaced immediately in
substantially the same terms; and
(i) (PARTNERSHIPS AND JOINT VENTURES): enter into any
partnerships or joint venture agreements or agreements
of similar effect without the prior written consent of
the Trustee unless entered into in the course of the
Core Business; and
(j) (SUBSIDIARIES): create or acquire any Subsidiary
without the prior written consent of the Trustee
(acting on the instructions of the Majority of Senior
Creditors) unless:
(i) the Subsidiary executes and delivers a New Obligor
Accession Deed agreeing to be bound as an Obligor
under this deed; and
(ii) the Subsidiary executes and delivers a deed
agreeing to be bound jointly and severally as a
borrower under the TXU8 Loan Agreement; and
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(iii) the Trustee is provided with any other documents,
instruments and assurances as the Trustee
reasonably requires in order to ensure that the
Subsidiary is bound as an Obligor under this deed
and as a borrower under the TXU8 Loan Agreement
and that their New Obligor Accession Deed is
enforceable against that Subsidiary; and
(iv) the Subsidiary carries on only activities in
connection with the Core Business; and
(k) (LOANS): be the creditor in respect of any Indebtedness
except for:
(i) deposits made with a Financier in the ordinary
course of business;
(ii) in the case of a Licence Holder, Indebtedness
extended to customers on arm's-length terms in
the ordinary course of business;
(iii) loans which are permitted to be made in
accordance with clause 6.5;
(iv) Permitted Indebtedness; or
(v) as approved in writing by the Trustee; and
(l) (ARM'S-LENGTH TERMS): enter into any transaction with
any person otherwise than on arm's-length terms and for
full market value; and
(m) [Deleted]; and
(n) (PARTNERSHIP): in the case of each Core Borrower,
resign from, terminate or dissolve the Partnership or
attempt to do so without the prior written consent of
the Trustee; and
(o) [Deleted]; and
(p) [Deleted]; and
(q) (SUBORDINATED DEBT): incur any Subordinated
Indebtedness other than Qualifying Subordinated Debt;
and
(r) (EXCLUDED SUBSIDIARY): permit any Excluded Subsidiary
to own any assets (other than assets relevant to its
status as a body corporate and which have a nominal
value) or to conduct or carry on any business
activities unless and until the Excluded Subsidiary has
executed and delivered to the Trustee a New Obligor
Accession Deed under which it agrees to be bound as an
Obligor under this deed and a deed under which it
agrees to be bound jointly and severally as a borrower
under the TXU8 Loan Agreement; and
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(s) (HOLDCO): in the case of Holdco, own any assets (other
than assets relevant to its status as a body corporate
and which have a nominal value) or conduct or carry on
any business activities except:
(i) its interest in the ALP Loan Agreement and
Holdco-TXUA Loan Agreement; and
(ii) the shares held by it in TXUA and TXU (No. 12) Pty
Ltd; and
(t) (LEASES): enter into or permit to subsist any lease or
licence of any assets if the aggregate of all rent or
licence fees payable in respect of all such leases and
licences exceeds $5,000,000 in any Financial Year,
provided that an Obligor may lease or license:
(i) interests in real property but excluding any plant
and equipment whether or not it is affixed or
attached to land and may constitute a fixture;
(ii) motor vehicles;
(iii) except in the case of TXUA, Generation Assets
situated in South Australia upon the condition
that the Obligors are not, and will not be, in
breach of clause 6.3(b) of this deed in connection
with the lease or licence; and
(iv) except in the case of TXUA, any other Generation
Asset or other Infrastructure Asset provided that:
(A) the Obligors are not, and will not be, in
breach of Clause 6.3(b) of this deed in
connection with the lease or licence; and
(B) the arrangements with the lessor or licensor
incorporate a right or benefit in favour of
the Trustee (on behalf of the Senior
Creditors), whether or not an equivalent
right or benefit is granted to any specific
creditor, that in the event of the lessor or
licensor being entitled to repossess the
relevant leased or licensed assets and/or
terminate the lease or licence, the Trustee
will have an entitlement which is enforceable
against the lessor or licensor to, either
directly or through a nominee:
(aa) receive at least 30 days notice from the
lessor or licensor of the lessor's or
licensor's intention to repossess the
relevant leased or licensed assets
and/or terminate the lease or licence;
and (ab) remedy or procure the remedy
of any defaults by the relevant
Obligor under the lease or licence; and
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(ac) enter into possession of and manage and
operate the relevant leased or licensed
assets as if it were the lessee or
licensee provided it agrees to become
bound by the terms of the lease or
licence and perform the obligations of
the lessee or licensee; and
(ad) within a period of not less than 6
months from taking possession, to sell,
transfer, assign, novate or otherwise
dispose of or procure the sale,
transfer, assignment, novation or
disposal of the lease or licence to a
respectable, solvent and skilled person
capable of performing the lessee's or
licensee's obligations under the lease
or licence who is approved by the
lessor; and
(u) (GENERATION ASSETS): acquire after the Effective Date
any Generation Asset if as a result the aggregate value
of all Generation Assets owned or leased by the Group
exceeds 20% of the aggregate value of all assets of the
Group; and
(v) (TXU8): in the case of TXU8, own any assets (other than
assets relevant to its status as a body corporate and
which have a nominal value) or conduct or carry on any
business activities except:
(i) its interest in the TXUA - TXU8 Loan Agreement and
the TXU8 Loan Agreement; and
(ii) its liabilities under any Permitted Indebtedness
it is permitted to incur under this deed; and
(iii) the shares held by it in TXU9; and
(w) (WESTPAC CHARGE): permit or allow any moneys,
liabilities or obligations to be secured at any time by
the Security Interest referred to in paragraph (e) of
the definition of "Permitted Security Interest"; and
(x) (TXUA): in the case of TXUA, own any assets (other than
assets relevant to its status as a body corporate and
which have a nominal value) or conduct or carry on any
business activities except:
(i) its interest in the TXUA - TXU8 Loan Agreement and
the Holdco - TXUA Loan Agreement; and
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(ii) the shares held by it in TXU8, the TXU Borrowers
and the Excluded Subsidiaries; and
(iii) any Permitted Indebtedness under this deed; and
(iv) general administration and support services for
the Group.
FINANCIAL UNDERTAKINGS
6.4 Each Core Borrower undertakes to ensure that:
(a) the ratio of Consolidated Senior Debt (but excluding
the Hedge Exposures of the Hedge Counterparties and any
other financial institution which is a party to a Hedge
Agreement (applying the definition of Hedge Exposure as
if that financial institution was a Hedge
Counterparty)) to Consolidated Net Worth is no greater
than 70:30 at all times; and
(b) the Consolidated Interest Cover Ratio as at:
(i) 30 June 2000 and 30 September 2000 will be not
less than 1.65:1; and
(ii) each subsequent Calculation Date will be not less
than 1.75:1; and
(c) the Consolidated Net Worth will not be less than
$1,300,000,000 at all times.
DISTRIBUTIONS
6.5 The Core Borrowers shall not:
(a) subject to clause 6.8, declare or distribute any
declared dividends or make any other distribution
whatever to shareholders or holders of equity or
capital in the Core Borrowers; or
(b) redeem or buy back any of the issued share capital of
the Core Borrowers or reduce the capital of the Core
Borrowers; or
(c) make any loan to any Core Borrower (in its individual
capacity) or to any Related Entity (other than an
Obligor) or make any payment or repayment of any loan;
or
(d) prepay or repay any amount of principal in respect of
Junior Finance Debt, Qualifying Subordinated Debt or
other Subordinated Indebtedness (unless that Junior
Finance Debt, Qualifying Subordinated Debt or other
Subordinated Indebtedness is repaid (directly or
indirectly) by means of or refinanced and replaced by
Qualifying Subordinated Debt or Consolidated Senior
Debt); or
(e) pay any Interest in respect of Junior Finance Debt,
Qualifying Subordinated Debt or other Subordinated
Indebtedness having a principal amount which exceeds
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15% of the aggregate of Consolidated Senior Debt and
Consolidated Net Worth,
unless the following conditions are satisfied:
(f) no Event of Default or Potential Event of Default is
subsisting or would occur as a result of the
declaration, distribution, payment, repayment,
reduction, redemption or loan; and
(g) the Consolidated Interest Cover Ratio as at:
(i) 30 June 2000, 30 September 2000 and 31 December
2000 is not less than 1.90:1; and
(ii) each Calculation Date occurring on or after 31
March 2001 is not less than 2.00:1; and
(h) the Obligors are not in default in respect of any
monetary obligation which is included in Consolidated
Senior Debt.
6.6 The Core Borrowers may pay Interest in respect of Junior
Finance Debt, Qualifying Subordinated Debt or other
Subordinated Indebtedness having a principal amount which is
15% or less of the aggregate of Consolidated Senior Debt and
Consolidated Net Worth and the Core Borrowers may elect upon
which Junior Finance Debt, Qualifying Subordinated Debt or
other Subordinated Indebtedness they pay Interest which they
are permitted to pay provided that:
(a) no Senior Debt is due and payable but unpaid; and
(b) no Event of Default or Potential Event of Default has
occurred and is subsisting; and
(c) the relevant interest rate complies with clause 6.7.
6.7 The interest rate or effective interest rate applicable to
any Interest which the Core Borrowers are permitted to pay
under clause 6.6 must be:
(a) where the lender is a Related Entity of the Core
Borrowers, no more than 5% per annum above the Bank
Xxxx Rate applicable from time to time ; and
(b) in all other circumstances, an interest rate or
effective interest rate determined on normal arm's
length commercial terms.
6.8 Notwithstanding clause 6.5, the Core Borrowers may not
declare or distribute any declared dividends or make any
other distribution to shareholders or holders of equity or
capital in Core Borrowers (other than permitted payments in
respect of Junior Finance Debt, Qualifying Subordinated Debt
or other Subordinated Indebtedness) on or before 31 December
2000.
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7 [DELETED]
8 DEFAULT
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EVENTS OF DEFAULT
8.1 Each of the following is an Event of Default (whether or not
it is within the Obligor's power to prevent it):
(a) (PAYMENT): an Obligor does not pay, in the manner
provided in a Senior Finance Document, any money
payable (excluding Interest) when due or, in the case
of Interest, any Interest due under a Senior Finance
Document within two Business Days of notice of the
non-payment being given by the Trustee to the Obligor
(or, where non-payment on its due date has arisen
solely by reason of a technical, computer or similar
error outside the control of the Obligor, within two
Business Days of notice of such non-payment being given
by the Trustee to the Obligor); or
(b) (BREACH OF FINANCIAL UNDERTAKINGS): a Core Borrower
fails at any time to comply with the undertakings in
clauses 6.4(a) or 6.4(c) or, in respect of the
undertaking in clause 6.4(b):
(i) the Core Borrowers fail to deliver to the Trustee
a certificate of compliance on the due date as
required by clause 6.1(l) (Compliance
certificate); or
(ii) it is apparent from a certificate of compliance or
from the Financial Statements delivered to the
Trustee in accordance with clause 6.1 (General
undertakings) that the Core Borrowers are in
breach of the undertaking in clause 6.4(b); or
(iii) a Core Borrower gives notice to the Trustee of a
breach of its undertaking in clause 6.4(b); or
(iv) the Trustee gives notice in writing to the Core
Borrowers that they are in breach of the
undertaking in clause 6.4(b) and the Core
Borrowers are in fact in breach of that
undertaking; or
(c) (REGULATORY EVENTS): an Obligor fails to comply with
its undertakings in clause 6.1(x) (Licences) or 6.3(h)
(Variation of Agreements) or fails to give notice in
accordance with clause 6.1(t) (Regulatory) in respect
of a matter referred to in clause 6.1(t) which matter
has or is likely to have a Material Adverse Effect or
is likely to lead to the revocation or cancellation of
a Licence or the termination of a Material Contract to
which it is a party; or
(d) (OTHER DEFAULTS): an Obligor commits any breach of, or
defaults in the due performance or observance of, any
of its obligations or undertakings under the Senior
Finance Documents (other than a breach or default
described in paragraph (a), (b) or (c) above) and the
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breach or default, if capable of remedy, continues
unremedied for 30 days after the Obligor receives a
notice from the Trustee of the breach or default or,
where a specific period of grace is allowed in the
Senior Finance Documents for that breach or default,
the breach or default remains unremedied at the end of
that grace period; or
(e) (CROSS DEFAULT): any Indebtedness of an Obligor (other
than the Junior Finance Debt or any Qualifying
Subordinated Debt) exceeding in aggregate $10,000,000
(or its equivalent in another currency):
(i) is not satisfied on time or at the end of any
applicable period of grace; or
(ii) becomes prematurely payable and is not discharged
when due; or
(iii) is not discharged at maturity or when duly
called; or
(f) (EXECUTION AGAINST PROPERTY): execution of a court
order or other legal right is levied and not stayed,
withdrawn or satisfied within 10 Business Days of being
made or a judgment is enforced or an order or Security
Interest is enforced, or becomes enforceable, against
any property of an Obligor for an amount exceeding
$5,000,000; or
(g) (MISREPRESENTATION): any representation, warranty or
statement made or deemed to be made in a Senior Finance
Document or otherwise made or deemed to be made by or
on behalf of an Obligor in favour of a Senior Creditor,
proves to have been or is found to have been untrue,
incorrect or misleading in any material respect when
made or deemed made; or
(h) (INSOLVENCY EVENT): an Insolvency Event occurs in
respect of an Obligor except in the case of a members
voluntary winding up or a voluntary deregistration or
dissolution of an Obligor which owns no assets and is
solvent; or
(i) (CESSATION OF BUSINESS): an Obligor stops payment
generally, ceases to carry on its business or a
material part of it, or threatens to do either of those
things, except to effect a members voluntary winding up
or to deregister, dissolve, reconstruct or amalgamate
while solvent on terms approved by the Trustee; or
(j) (REDUCTION OF CAPITAL): an Obligor takes action to
reduce its capital or passes a resolution referred to
in section 254N of the Corporations Law, in either case
without the prior written consent of the Trustee
provided that a reduction of capital in relation to
shares held by the Core Borrowers in Holdco to
facilitate the payment of any portion of the Amount
Owing to a Senior Creditor shall be permitted; or
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(k) (SHARE BUY-BACK): an Obligor without the prior written
consent of the Trustee:
(i) effects, or enters or attempts to enter into an
agreement to effect, a buy-back of any of its
shares other than an employee share scheme
buy-back or an odd lot buy-back;
(ii) passes a resolution under section 257C or section
257D of the Corporations Law, other than a
resolution pursuant to an employee share scheme
buy-back, or convenes a meeting to consider such a
resolution; or
(iii) applies to a court to convene any such meeting or
to approve any such resolution or buy-back;
provided that a buy-back of any shares held by the Core Borrowers
in Holdco to facilitate the payment of any portion of the Amount
Owing to a Senior Creditor shall be permitted and for the
purposes of this paragraph words and expressions which are used
in this paragraph and which are defined in the Corporations Law
have the meanings given to them in the Corporations Law; or
(l) (INVALIDITY):
(i) any party to a Finance Document (other than a
Senior Creditor) or a person on that party's
behalf claims that a Finance Document or a
material clause in a Finance Document is wholly or
partly void, voidable or unenforceable; or
(ii) a Finance Document or a material clause in a
Finance Document is or becomes wholly or partly
void, voidable or unenforceable, and, if that
state of affairs is remediable, and the Obligor
and each other party (other than the Trustee) to
that Finance Document fails promptly to take all
steps reasonably requested by the Trustee to
remedy, in co-operation with the Trustee and
the other Creditors, the relevant defect; or
(m) (CHANGE IN CIRCUMSTANCES): a change occurs in a
circumstance which is warranted under a Senior Finance
Document to exist or in the business, assets or
financial condition of an Obligor or any other event or
series of events, whether related nor not, occurs which
has, or is likely to have, a Material Adverse Effect
and, if capable of remedy, is not remedied within 30
days after the Obligor receives a notice of such event
from the Trustee; or
(n) (CHANGE OF SHAREHOLDING): if at any time the
representation and warranty in clause 5.1(u) is untrue,
incorrect or misleading; or
(o) (CHANGE OF CONTROL): Texas ceases for any reason to
ultimately control the composition of the board of
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directors and to have management and operational
control of each Obligor; or
(p) (CHANGE OF CONSTITUTION): without the prior written
consent of the Trustee, an Obligor materially changes,
or passes a resolution to materially change, its
constitution; or
(q) (INVESTIGATION): a person is appointed under the
Corporations Law or other companies and securities
legislation to investigate any part of the affairs of
an Obligor unless the Obligor has demonstrated to the
reasonable satisfaction of the Trustee within 10
Business Days of the appointment that no Material
Adverse Effect will, or is likely to, result from the
investigation or as a consequence thereof; or
(r) (SEIZURE): all or any material part of the assets of an
Obligor are seized or otherwise appropriated by, or
custody thereof is assumed by any Governmental Agency
or an Obligor is otherwise prevented from exercising
normal control over all or a material part of its
assets or loses any of the rights or privileges
necessary to maintain its existence or to carry on its
business, unless the Obligor has demonstrated to the
reasonable satisfaction of the Trustee within 10
Business Days of such seizure, appropriation,
assumption of custody or execution ("EXERCISE OF
Rights") that no Material Adverse Effect will, or is
likely to, result from such Exercise of Rights or as a
consequence thereof; or
(s) (ENVIRONMENTAL EVENT): any Governmental Agency takes
any action, or there is any claim or requirement of
substantial expenditure or alteration of activity,
under any Environmental Law, or there is any breach or
threatened breach of any Authorisation, which is likely
to have a Material Adverse Effect or any circumstance
arises which may give rise to such action, claim,
requirement or breach and, if capable of remedy, the
Obligors fail to take steps (to the satisfaction of the
Trustee) to remedy the matter within 30 days of
becoming aware of such Governmental Agency action,
claim, breach or threatened breach; or
(t) (LICENCES):
(i) a Licence Holder fails to take any step necessary
or desirable to preserve a Licence or to avoid a
Licence being placed in jeopardy;
(ii) a Licence is varied in a material adverse respect
without the prior written consent of the Trustee
or is suspended, cancelled, transferred (except to
another Obligor), revoked or allowed to lapse;
(iii) any person (other than an Obligor) is issued a
distribution licence in respect of all or any part
of a Distribution Area and the issue of the
licence is likely to have a Material Adverse
Effect;
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(iv) a Licence Holder receives any notice of revocation
of a Licence;
(v) [Deleted];
(vi) an administrator is appointed to all or any part
of the business of a Licence Holder under the Gas
Industry Xxx 0000, or the Electricity Industry Act
1993 or any corresponding legislation in a
jurisdiction other than Victoria;
(vii) the receipt by a Licence Holder of a notice of
intention to serve a provisional or final
enforcement order or the receipt by a Licence
Holder of a provisional or final enforcement order
under the Office of the Regulator-General Act 1994
or any corresponding legislation in a jurisdiction
other than Victoria; or
(viii) a material clause in a Licence is or becomes
wholly or partly void, voidable or unenforceable,
or is claimed to be so by an Obligor or by anyone
on its behalf and, if capable of remedy, that
state of affairs is not remedied within 10
Business Days of the Obligor becoming aware of
it; or
(u) (LEGISLATION): any legislation is passed or amended
(including, without limitation, any amendment to the
Gas Industry Xxx 0000, the Electricity Industry Xxx
0000, the Office of the Regulator-General Act 1994) or
a Material Regulatory Instrument is amended which has a
Material Adverse Effect; or
(v) (VOIDABLE PROVISIONS): a Material Contract or any
material provision of a Material Contract is or becomes
void, voidable or unenforceable; or
(w) (BREACH): there occurs a breach or event of default
under any of the Material Contracts , or an Obligor
fails to exercise or enforce its rights under any of
them, and the breach or failure has or is likely to
have a Material Adverse Effect; or
(x) (ANY OTHER EVENT): any other event which an Obligor and
the Trustee may agree shall be an Event of Default for
the purposes of this clause 8.1 occurs; or
(y) (CHANGE IN GROUP STRUCTURE): an Obligor (other than the
Core Borrowers) ceases to be a wholly owned Subsidiary
of the Core Borrowers; or
(z) (HEDGE AGREEMENT): an event of default (other than in
relation to the Hedge Counterparty) occurs under a
Hedge Agreement; or
(aa) [Deleted]; or
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(bb) (SUSPENSION): an event of default or default event
occurs in relation to a Licence Holder under the MSO
Rules or the National Electricity Code which is likely
to lead to the suspension of the Licence Holder under
those Rules or that Code; or
(cc) (SECURITY INTEREST): any Security Interest is created
or allowed to exist or subsist on any shares held in
the Core Borrowers or an Obligor creates or allows to
exist or subsist a Security Interest on the whole or
any part of its present or future property except for a
Permitted Security Interest and the Security Interest
is not discharged and released within 30 days after the
Core Borrowers receive a notice of such event from the
Trustee.
CONSEQUENCES OF DEFAULT
8.2 If an Event of Default occurs, then the Trustee may:
(a) if instructed by the Majority of Senior Creditors,
declare at any time by notice to the Core Borrowers (or
other relevant Obligors, in the case of a Transactional
Banking Facility) that:
(i) an amount equal to the total Amount Owing to all
Senior Creditors is either:
(A) payable on demand; or
(B) immediately due for payment; and/or
(ii) the Senior Creditors' obligations specified in the
notice are terminated; or
(b) if instructed by one or more Senior Creditors in
accordance with clause 3.8, declare at any time by
notice to the Core Borrowers (or other relevant
Obligors, in the case of a Transactional Banking
Facility) that:
(i) an amount equal to the total Amount Owing to all
of the Senior Creditors who are a party to or have
the benefit of the Senior Finance Document in
respect of which the default has occurred is
either:
(A) payable on demand; or
(B) immediately due for payment; and/or
(ii) the relevant Senior Creditors' obligations
specified in the notice are terminated.
8.3 The Trustee may make either or both of the declarations
referred to in clause 8.2(a) and 8.2(b). The making of
either of them gives immediate effect to its provisions. The
Core Borrowers or other relevant Obligors (in the case of a
Transactional Banking Facility) must pay any amount demanded
in accordance with a demand.
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8.4
(a) If the Trustee makes any declaration under clause 8.2:
(i) the declaration does not affect or diminish the
duties and obligations of an Obligor under the
Senior Finance Documents; and
(ii) each Obligor must continue to perform its
obligations under the Senior Finance Documents as
if the declaration had not been made, subject to
any directions that may be given by the Trustee
(acting upon the instructions of the Majority of
Senior Creditors) from time to time in accordance
with the Senior Finance Documents.
(b) Clause 8.4(a) does not affect the obligations of the
Core Borrowers (or other relevant Obligors, in the case
of a Transactional Banking Facility) under clause 8.3.
8.5
(a) After a declaration is made under clause 8.2, the
relevant Senior Finance Documents may be enforced (but
subject always to clause 8.2) without further notice to
or consent by an Obligor or any other person even if a
Senior Creditor accepts any part of the Amount Owing to
it after an Event of Default or there has been any
other Event of Default.
(b) A Senior Creditor is not liable to any Obligor for any
Loss or damage an Obligor may suffer, incur or be
liable for arising out of or in connection with the
Senior Creditor exercising any right under any Senior
Finance Document except for any Loss or damage
resulting from the fraud, wilful misconduct or gross
negligence of the Senior Creditor.
9 DISTRIBUTION OF RECOVERED MONEY
--------------------------------------------------------------------------------
9.1 If at any time the Trustee receives money under a Senior
Finance Document which is available for distribution (this
includes money which is received by the Trustee before a
notice is given under clause 8.2(a) but which, for any
reason whatsoever, has not been distributed by the time a
notice is given under clause 8.2(a)) on or after the Fixed
Date whether or not it represents the proceeds of recovery
action taken under any Senior Finance Document, then the
money must be distributed by the Trustee in accordance with
clause 9.4.
9.2 Unless the Majority of Senior Creditors decide otherwise,
money referred to in clause 9.1 does not form part of the
Recovered Money on a Recovered Money Distribution Date if in
accordance with any Senior Finance Document the money has
been placed to the credit of a suspense account in order to
preserve rights to prove in the bankruptcy or liquidation of
any person.
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9.3 Any suspense account to which money is placed under clause
9.2 is to be an interest bearing account selected reasonably
by the Trustee. Interest earned on the account is to be
treated as Recovered Money.
9.4 Recovered Money is to be distributed by the Trustee as soon
as practicable after the Trustee receives it as follows:
(a) [Deleted];
(b) first, towards satisfaction of all costs, charges and
expenses properly incurred by the Trustee in or
incidental to the exercise or performance or attempted
exercise or performance of any of the rights, powers or
remedies conferred under any Senior Finance Document;
(c) secondly, towards satisfaction of any other expenses or
outgoings in connection with any receivership under or
the enforcement of any Senior Finance Document;
(d) thirdly, towards payment to the Trustee of any money
due to it in its capacity as Trustee under any Senior
Finance Document;
(e) fourthly, towards payment to each Senior Creditor of an
amount (not exceeding the Amount Owing of that Senior
Creditor) equal to that Senior Creditor's Share at that
time of the Recovered Money;
(f) fifthly, to the extent that this deed secures the
payment of other amounts, towards payment to the
persons entitled to those amounts and, if more than
one, in a proportion for each person equal to the
proportion that the amount owed to that person bears to
the aggregate amount owed to all those persons; and
(g) sixthly, the surplus (if any) shall be paid on demand,
to the relevant Obligors, but will not carry interest.
.
9.5 If at any time the Trustee receives money under a Senior
Finance Document after a notice is given under clause 8.2(b)
but before a notice is given under clause 8.2(a) (whether or
not it represents the proceeds of recovery action taken
under any Senior Finance Document) then the money must be
distributed by the Trustee in accordance with clause 9.4
except that the references in clause 9.4(e) to "Senior
Creditor" shall be limited to the Senior Creditors who have
instructed or were entitled to instruct the Trustee to take
action under clause 8.2(b) in accordance with clause 3.8 of
this deed.
10 REPLACEMENT OF TRUSTEE
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REMOVAL OF TRUSTEE
10.1 A Majority of Senior Creditors may remove the Trustee from
office, in each case by notice given to the Trustee, if:
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(a) an Insolvency Event occurs or arises in relation to the
Trustee; or
(b) the Trustee is guilty of negligence or wilful
misconduct in the discharge of its duties under this
deed.
Subject to clause 10.3, removal of the Trustee from office will
take effect:
(c) (if notice of removal is given pursuant to paragraph
(a)): when the notice is given; or
(d) (in any other case): 20 Business Days after the notice
of removal is given to the Trustee.
RETIREMENT
10.2 The Trustee may retire as Trustee by giving to Core
Borrowers and each other Senior Creditor not less than 30
days' notice of its intention to do so. No retirement takes
effect unless:
(a) there has been appointed as a successor Trustee
approved by the Core Borrowers (which approval may not
be unreasonably withheld or delayed) either:
(i) a Senior Creditor nominated by a Majority of
Senior Creditors or, failing such a nomination;
(ii) a reputable and experienced bank or financial
institution nominated by the Trustee and
acceptable to a Majority of Senior Creditors; and
(b) the successor Trustee has obtained title to any
guarantee, indemnity, guarantee and indemnity and
Security Interest held by the retiring Trustee in a
manner approved by each Senior Creditor.
10.3 Subject to clause 10.4 when a successor Trustee is
appointed, the retiring or removed Trustee is discharged
(without prejudice to any accrued right or obligation) from
any further obligation under the Senior Finance Documents.
The new Trustee and each other party to the Senior Finance
Documents has the same rights and obligations among
themselves as they would have had if the new Trustee had
originally been a party to the Senior Finance Documents.
10.4 The retiring or removed Trustee agrees, at its own expense,
to execute and cause its successors to execute documents and
do everything else necessary or appropriate to transfer the
Trust Fund into the name of the new Trustee and to ensure
that all public registers record the new Trustee as the
trustee of the Trust Fund.
11 LIMITATION ON LIABILITY
--------------------------------------------------------------------------------
11.1 [Deleted].
11.2 [Deleted].
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11.3 [Deleted].
11.4 [Deleted].
LIMITATION ON LIABILITY
11.5 The Trustee acknowledges that the liability of TXU Australia
(LP) No. 1 Ltd and TXU Australia (LP)_ No. 2 Ltd to
contribute to the debts or obligations of the Partnership
is, subject to the Partnership Xxx 0000 of Victoria limited
to the amount shown in relation to it in the Register (as
defined in the Partnership Xxx 0000 of Victoria) as to the
extent to which it is liable to contribute. Nothing in this
deed or the other Transaction Documents imposes any
liability on TXU Australia (LP) No. 1 Ltd and TXU Australia
(LP) No. 2 Ltd in excess of the limit referred to in this
clause 11.5 provided that this limitation does not affect
the amount of any Amount Owing, the Guaranteed Money or the
liability of the Obligors (other than TXU Australia (LP) No.
1 Ltd and TXU Australia (LP) No. 2 Ltd) under the Senior
Finance Documents.
12 COSTS, CHARGES, EXPENSES AND INDEMNITIES
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WHAT THE CORE BORROWERS AGREE TO PAY
12.1 The Core Borrowers agree to pay or reimburse the Trustee and
each other Senior Creditor on demand for:
(a) the reasonable Costs of the Trustee and each other
Senior Creditor in connection with:
(i) the negotiation, preparation, execution and
registration of and payment of Taxes on any Senior
Finance Document; and
(ii) their being satisfied that conditions to drawing
have been met; and
(iii) giving and considering consents, approvals,
agreements, waivers, discharges and releases and
any variation or amendment of, under, to or
otherwise in connection with a Senior Finance
Document; and
(b) [Deleted]; and
(c) the Costs of the Trustee and each other Senior Creditor
in connection with the enforcing of or preserving
rights (or considering enforcing or preserving them)
under any Senior Finance Document, or doing anything in
connection with any enquiry by an authority involving
the Obligor or any of its Related Entities; and
(d) Taxes and fees (including registration fees) and fines
and penalties in respect of fees paid, or that the
Trustee reasonably believes are payable, in connection
with any Senior Finance Document or a payment or
receipt or any other transaction contemplated by any
Senior Finance Document. However, the Core Borrowers
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need not pay a fine or penalty in connection with Taxes
or fees to the extent that it has placed the Trustee in
sufficient cleared funds for the Trustee to be able to
pay the Taxes or fees by the due date.
The Trustee or Senior Creditor may debit any of these amounts to
the Core Borrowers' account after asking the Core Borrowers to
pay and the Core Borrowers have failed to pay the amount
requested.
INDEMNITY
12.2 The Core Borrowers indemnify the Trustee and each other
Senior Creditor against any liability or Loss arising from,
and any Costs incurred in connection with:
(a) financial accommodation requested under a Senior
Finance Document not being provided in accordance with
the request for any reason except default of the
Trustee or the Senior Creditor; or
(b) financial accommodation under a Senior Finance Document
being repaid, discharged or made payable other than at
its maturity or on an Interest Payment Date relevant to
that accommodation; or
(c) the Trustee or any other Senior Creditor acting in
connection with a Senior Finance Document in good faith
on fax, electronic mail or telephone instructions
purporting to originate from the offices of an Obligor
or to be given by an Authorised Officer of an Obligor
and which it believes to be genuine and correct; or
(d) an Event of Default; or
(e) the Trustee or the Senior Creditor exercising or
attempting to exercise a right or remedy in connection
with a Senior Finance Document after an Event of
Default and for so long as it subsists; or
(f) any indemnity the Trustee or any other Senior Creditor
properly gives a Controller or an administrator of an
Obligor or to the Trustee in respect of an indemnity
properly given by the Trustee or the other Senior
Creditor to such Controller or administrator.
ITEMS INCLUDED IN LOSS, LIABILITY AND COSTS
12.3 The Core Borrowers agree that:
(a) the Costs referred to in clause 12.1 (What the Core
Borrowers agree to pay) and the liability, Loss or
Costs referred to in clause 12.2 (Indemnity) include in
relation to clause 12.1(a), reasonable legal Costs and
in relation to clause 12.1(c) and 12.2, legal Costs in
accordance with any written agreement as to legal costs
or, if no agreement, on whichever is the higher of a
full indemnity basis or solicitor and own client basis;
and
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(b) the Costs referred to in clause 12.1((a)) and (c) (What
the Core Borrower agrees to pay) include those paid, or
that the Trustee or relevant Senior Creditor reasonably
believes are payable, to persons engaged by the Trustee
or a Senior Creditor in connection with the Senior
Finance Documents (such as consultants); and
(c) Loss or liability and any Costs in any indemnity under
the Senior Finance Documents may include "break costs".
These may be calculated by any method the Senior
Creditor reasonably chooses including by reference to
any Loss it incurs because the Senior Creditor
terminates arrangements it has made with others to fund
(or to maintain its funding of) financial accommodation
under the Senior Finance Documents.
PAYMENT OF EMPLOYEES' LOSSES
12.4 The Core Borrowers agree to pay the Trustee or Senior
Creditor an amount equal to any liability or Loss and any
Costs of the kind referred to in clause 12.2 (Indemnity)
suffered or incurred by any employee, officer, agent or
contractor of the Trustee or the Senior Creditor unless
caused by that person's gross negligence.
CURRENCY CONVERSION ON JUDGMENT DEBT
12.5 If a judgment, order or proof of debt for an amount in
connection with a Senior Finance Document is expressed in a
currency other than that in which the amount is due under
the Senior Finance Document, then the Core Borrowers
indemnify the Trustee and each Senior Creditor against:
(a) any difference arising from converting the other
currency if the rate of exchange used by the Trustee or
the Senior Creditor in accordance with the Senior
Finance Documents for converting currency when it
receives a payment in the other currency is less
favourable to the Trustee or the Senior Creditor than
the rate of exchange used for the purpose of the
judgment, order or acceptance of proof of debt; and
(b) the Costs of conversion.
TRUSTEE FEES
12.6 The Core Borrowers agree to pay the Trustee a fee for acting
as trustee under this deed, such fee to be of an amount and
to be paid in a manner as separately agreed in writing
between the Core Borrowers and the Trustee.
13 NOTICES
--------------------------------------------------------------------------------
FORM
13.1 Unless expressly stated otherwise in the Senior Finance
Documents, all notices, certificates, consents, approvals,
waivers and other communications in connection with a Senior
Finance Document:
80
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(a) must be in writing, signed by an Authorised Officer of
the sender and marked for attention as set out in
schedule 5 if the recipient has notified otherwise,
then marked for attention in the way last notified; and
(b) must be:
(i) left at the address set out in schedule 5; or
(ii) sent by prepaid post (airmail, if appropriate) to
the address set out in schedule 5; or
(iii) sent by fax to the fax number set out in
schedule 5,
but if the intended recipient has notified a changed
postal address or fax number, then the communication
must be to that address or number; and
(c)
(d) if sent by post, are taken to be received three
Business Days after posting (or seven Business Days
after posting if sent to or from a place outside
Australia); and
(e) if sent by fax, are taken to be received at the time
shown in the transmission report as the time that the
whole fax was sent; and
(f) take effect from the time they are received unless a
later time is specified in them provided that if the
receipt is on a day which is not a Business Day or is
after 4.00pm (addressee's time) it is taken to be
received at 9.00am on the following Business Day.
WAIVER OF NOTICE PERIOD
13.2 The Trustee may waive a period of notice required to be
given by an Obligor under this deed.
14 CHANGE IN CREDITORS
--------------------------------------------------------------------------------
NEW SENIOR CREDITOR
14.1 A person may only become a Senior Creditor under this deed
and be entitled to receive the benefits of a Senior Creditor
and be bound by the obligations of a Senior Creditor if that
person has:
(a) executed two counterparts of a New Creditor Accession
Deed in a form and executed in a manner approved by the
Trustee (acting reasonably); and
(b) delivered the two executed counterparts of the New
Creditor Accession Deed to the Trustee for execution by
the Trustee; and
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(c) delivered to the Trustee any other document reasonably
requested by the Trustee to evidence that the New
Creditor Accession Deed is enforceable against that
person,
and an Event of Default or Potential Event of Default will not
occur as a result of that person becoming a Senior Creditor under
this deed.
NEW JUNIOR CREDITOR
14.2 Subject to clause 14.9, a person may only become a Junior
Creditor under this deed if that person has:
(a) agreed to accede to this deed and to receive the
benefits of a Junior Creditor and be bound by the
obligations of a Junior Creditor under this deed by:
(i) executing two counterparts of a New Creditor
Accession Deed in a form and executed in a manner
approved by the Trustee (acting reasonably); and
(ii) delivering the two executed counterparts of the
New Creditor Accession Deed to the Trustee for
execution by the Trustee; and
(iii) delivering to the Trustee any other document
reasonably requested by the Trustee to evidence
that the New Creditor Accession Deed is
enforceable against that person; or
(b) agreed to be bound by the obligations of a Junior
Creditor as if it were a party to this deed as a Junior
Creditor by:
(i) executing (and arranging for the execution by any
relevant Obligor of) three counterparts of a Deed
of Subordination in a form and executed in a
manner approved by the Trustee (acting
reasonably); and
(ii) delivering the three executed counterparts of the
Deed of Subordination to the Trustee for execution
by the Trustee; and
(iii) delivering to the Trustee any other document
reasonably requested by the Trustee to evidence
that the Deed of Subordination is enforceable
against that person; or
(c) demonstrated to the absolute satisfaction of the
Trustee and in a manner approved by the Trustee that
the Indebtedness owed to it by any Obligor is
subordinated on substantially the same terms as Junior
Debt is subordinated under this deed.
CHANGE IN SENIOR CREDITORS
14.3 If any Senior Creditor assigns any of its rights or
transfers by novation any of its rights and obligations
under any Finance Document (in accordance with the relevant
provisions of the relevant Finance Document), it must cause
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the assignee or transferee to become a new Senior Creditor
by:
(a) executing three counterparts of a New Creditor
Accession Deed in a form and executed in a manner
approved by the Trustee (acting reasonably); and
(b) delivering the three executed counterparts of the New
Creditor Accession Deed to the Trustee for execution by
the Trustee; and
(c) delivering to the Trustee any other document reasonably
requested by the Trustee to evidence that the New
Creditor Accession Deed is enforceable against that
assignee or transferee.
CHANGE IN JUNIOR CREDITOR
14.4 If any Junior Creditor (other than an Obligor or Texas) who
is a party to this deed assigns any of its rights or
transfers by novation any of its rights or obligations under
any Junior Finance Document (in accordance with the relevant
provisions of the relevant Junior Finance Document), then,
subject to clause 14.9, it must cause the assignee or
transferee to become a new Junior Creditor by:
(a) executing three counterparts of a New Creditor
Accession Deed which is then in a form and executed in
a manner approved by the Trustee (acting reasonably);
(b) delivering the three executed counterparts of the New
Creditor Accession Deed to the Trustee for execution by
the Trustee; and
(c) delivering to the Trustee any other document reasonably
requested by the Trustee to evidence that the New
Creditor Accession Deed is enforceable against that
assignee or transferee.
EFFECT OF ACCESSION
14.5 On and from the Accession Date for a New Creditor:
(a) the New Creditor becomes bound by this deed and
receives the benefits under this deed as if it were a
party to this deed;
(b) in the case of assignment or transfer to the New
Creditor, the assigning or transferring party continues
to be bound by this deed unless the Relevant Senior
Debt or Relevant Junior Debt (as the case may be) is
reduced to zero, in which case it is released from any
further obligations under this deed; and
(a) each other party continues to be bound by this deed on
the basis that the New Creditor is a Creditor.
AUTHORITY
14.6 Each other party to this deed (other than any Creditor which
is assigning any of its rights or transferring by novation
any of its rights and obligations under any Finance Document
83
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to the New Creditor) irrevocably authorises the Trustee to
execute any New Creditor Accession Deed signed by a New
Creditor on its behalf.
14.7 Each Senior Creditor irrevocably authorises the Trustee to
execute any Deed of Subordination signed by a new Junior
Creditor and an Obligor on its behalf.
RESTRICTION ON SENIOR CREDITORS
14.8 Notwithstanding anything else in this deed, neither an
Obligor nor any Related Entity of an Obligor can accede to
this deed as a Senior Creditor.
NEW JUNIOR CREDITOR - CONDITION PRECEDENT
14.9 If it is proposed that a person become a Junior Creditor
after the date of this deed, the Trustee may, as a condition
precedent to that person becoming a Junior Creditor, acting
reasonably request that it receive from lawyers reasonably
approved by the Trustee a legal opinion in form and
substance acceptable to the Trustee in connection with the
enforceability of the subordination provisions of this deed
against that person.
NOTICE OF CHANGE
14.10 The Trustee may treat each Creditor (or any assignee or
substitute or New Creditor of which the Trustee has actual
notice) as the holder of the benefit of that Creditor's
interests and subject to the Creditor's obligations under
the relevant Finance Documents for all purposes, unless and
until it receives notice to the contrary.
14.11 A Creditor must promptly notify the Trustee of any
assignment or novation of that Creditor's rights, benefits
or obligations under any Finance Document.
15 GENERAL
--------------------------------------------------------------------------------
SET-OFF
15.1 At any time after an Event of Default and for so long as it
subsists, the Trustee or a Senior Creditor may set off any
amount due for payment by the Trustee or the Senior
Creditor, respectively, to an Obligor against any amount due
for payment by that Obligor to the Trustee or the Senior
Creditor, respectively, under the Senior Finance Documents.
CERTIFICATES
15.2 The Trustee, a Senior Creditor or a Junior Financier may
give an Obligor a certificate about an amount payable or
other matter in connection with a Transaction Document. The
certificate is sufficient evidence of the amount or other
matter, unless it is proved to be incorrect.
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PROMPT PERFORMANCE
15.3 If this deed specifies when an Obligor agrees to perform an
obligation, the Obligor agrees to perform it by the time
specified. The Obligor agrees to perform all other
obligations promptly.
DISCRETION IN EXERCISING RIGHTS
15.4 The Trustee, a Senior Creditor or a Junior Financier may
exercise a right or remedy or give or refuse its consent in
any way it considers appropriate (including by imposing
conditions), unless a Transaction Document expressly states
otherwise.
CONSENTS
15.5 Each Obligor agrees to comply with all conditions in any
consent the Trustee, a Senior Creditor or a Junior Financier
gives in connection with a Transaction Document.
PARTIAL EXERCISING OF RIGHTS
15.6 If the Trustee, a Senior Creditor or a Junior Financier does
not exercise a right or remedy fully or at a given time, the
Trustee, Senior Creditor or Junior Financier can still
exercise it later.
NO LIABILITY FOR LOSS
15.7 None of the Trustee, a Senior Creditor or a Junior Financier
is liable for Loss caused by the exercise or attempted
exercise of, failure to exercise, or delay in exercising, a
right or remedy.
CONFLICT OF INTEREST
15.8 The Trustee's or a Senior Creditor's or a Junior Financier's
rights and remedies under this deed may be exercised even if
this involves a conflict of duty or the Trustee or the
Senior Creditor or Junior Financier has a personal interest
in their exercise.
REMEDIES CUMULATIVE
15.9 The rights and remedies of the Trustee, a Senior Creditor or
a Junior Financier under this deed are in addition to other
rights and remedies given by law independently of this deed.
RIGHTS AND OBLIGATIONS ARE UNAFFECTED
15.10 Rights given to the Trustee, a Senior Creditor or a Junior
Financier under this deed and an Obligor's liabilities under
it are not affected by any law that might otherwise affect
them.
INDEMNITIES
15.11 The indemnities in this deed are continuing obligations,
independent of the Obligors' other obligations under this
agreement and continue after this deed ends. It is not
necessary for the Trustee, a Senior Creditor or a Junior
Financier to incur expense or make payment before enforcing
a right of indemnity under this deed.
VARIATION AND WAIVER
15.12 Unless this deed expressly states otherwise, a provision of
this deed, or right created under it, may not be waived or
varied except in writing signed by the party or parties to
be bound.
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CONFIDENTIALITY
15.13 The Trustee, each Senior Creditor and each Junior Financier
agrees not to disclose information provided by the Obligors
that is not publicly available except:
(a) in connection with any person exercising rights or
dealing with rights or obligations under a Transaction
Document (including when consulting other Senior
Creditors after a Potential Event of Default or an
Event of Default or in connection with preparatory
steps such as negotiating with any potential assignee
or potential participant of the Creditor's rights or to
any ratings agency for the purposes of securitisation
or other person who is considering contracting with the
Creditor in connection with a Transaction Document); or
(b) to a person considering entering into (or who enters
into) a credit swap with the Trustee or a Senior
Creditor involving credit events relating to the Core
Borrowers or any of their Related Entities; or
(c) to officers, employees, legal and other advisers and
auditors of the Trustee, a Senior Creditor or a Junior
Financier; or
(d) to any party to this agreement or any Related Entity of
the Trustee, a Senior Creditor or a Junior Financier,
provided the recipient agrees to act consistently with
this clause 15.13; or
(e) with the Obligors' consent (not to be unreasonably
withheld); or
(f) as allowed, requested or required by any law, stock
exchange or regulatory authority.
The Obligors consent to disclosures made in accordance with this
clause 15.13.
FURTHER STEPS
15.14 The Obligors agree to do anything the Trustee or a Senior
Creditor asks (such as obtaining consents, signing and
producing documents and getting documents completed and
signed) to bind the Obligors and any other person intended
to be bound under the Senior Finance Documents.
INCONSISTENT LAW
15.15 To the extent permitted by law, this deed prevails to the
extent it is inconsistent with any law.
SUPERVENING LEGISLATION
15.16 Any present or future legislation which operates to vary
the obligations of the Obligors in connection with a Finance
Document with the result that the Trustee's, a Senior
Creditor's or a Junior Financier's rights, powers or
remedies are adversely affected (including by way of delay
or postponement) is excluded except to the extent that its
exclusion is prohibited or rendered ineffective by law.
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TIME OF THE ESSENCE
15.17 Time is of the essence in any Senior Finance Document in
respect of an obligation of an Obligor to pay money.
COUNTERPARTS
15.18 This deed may consist of a number of copies of this deed
each signed by one or more parties to the deed. When taken
together, the signed copies are treated as making up the one
document.
SERVING DOCUMENTS
15.19 Without preventing any other method of service, any
document in a court action may be served on a party by being
delivered to or left at that party's address for service of
notices under clause 13 (Notices). TXU Australia (LP) No. 1
Ltd and TXU Australia (LP) No. 2 Ltd irrevocably appoint TXU
Australia Holdings (AGP) Pty Ltd to receive any document
referred to in this clause. If, for any reason, TXU
Australia Holdings (AGP) Pty Ltd ceases to be able to
receive those documents, TXU Australia (LP) No. 1 Ltd and
TXU Australia (LP) No. 2 Ltd must immediately appoint
another person within Victoria to receive any such document
and notify the Trustee.
CONSENT BY OBLIGORS
15.20 Each Obligor unconditionally and irrevocably consents to
any Subsidiary becoming an Obligor after the date of this
deed by executing and delivering a New Obligor Accession
Deed and agrees that any Subsidiary becoming an Obligor will
not adversely affect or prejudice:
(a) its obligations under any Finance Document; or
(b) the rights of the Creditors under any of the Finance
Documents.
16 GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS
--------------------------------------------------------------------------------
16.1 This deed is governed by the law in force in Victoria.
16.2 Each party irrevocably and unconditionally submits to the
non-exclusive jurisdiction of the courts of Victoria and
courts of appeal from them. Each party waives any right it
has to object to an action being brought in those courts
including, without limitation, by claiming that the action
has been brought in an inconvenient forum or that those
courts do not have jurisdiction.
16.3 Without preventing any other mode of service, any document
in an action (including, without limitation, any writ of
summons or other originating process or any third or other
party notice) may be served on any party by being delivered
to or left for that party at its address for service of
notices under clause 13.
EXECUTED as a deed
87
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SCHEDULE 1 OBLIGORS
--------------------------------------------------------------------------------
------------------------------------------ -----------------------
NAME OF OBLIGOR ACN
------------------------------------------ -----------------------
TXU Australia Holdings Pty Ltd 086 006 859
TXU Australia Pty Ltd 000 000 000
TXU (No. 8) Pty Ltd 085 235 776
TXU (No. 9) Pty Ltd 085 235 801
Westar Pty Ltd 086 015 036
Kinetik Energy Pty Ltd 000 000 000
Eastern Energy Limited 064 651 118
TXU (No. 12) Pty Ltd 000 000 000
TXU (No. 7) Pty Ltd 085 235 749
Western Underground Gas Storage Pty Ltd 079 089 311
TXU Networks Pty Ltd 075 826 881
TXU (No. 14)Pty Ltd 076 229 519
Global Customer Solutions Pty Ltd 080 886 513
TXU Australia (Bairnsdale Power) Pty Ltd 081 074 142
TXU Australia Services Pty Ltd 081 074 160
TXU (No. 13) Pty Ltd 075 826 925
------------------------------------------ -----------------------
88
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SCHEDULE 2 FINANCIERS
--------------------------------------------------------------------------------
--------------------------------- -------------------- -------------------------------------------------
NAME OF FINANCIER ACN/ARBN NOTICE DETAILS
--------------------------------- -------------------- -------------------------------------------------
FACILITY A FINANCIERS
--------------------------------- -------------------- -------------------------------------------------
BA Australia Limited ACN: 004 617 341 Level 63, MLC Centre, 00-00 Xxxxxx Xxxxx,
Xxxxxx, XXX, 0000
FAX: (000) 0000 0000
ATTENTION: Vice President
--------------------------------- -------------------- -------------------------------------------------
Deutsche Bank AG ARBN: 064 164 162 Xxxxx 00
000 Xxxxxxx Xxxxxx
and Xxxxxxxxx Xxx 0000
Deutsche Australia Limited ACN: 000 000 000 FAX: (000) 0000 0000
ATTENTION: Manager, Loans Administration
--------------------------------- -------------------- -------------------------------------------------
National Australia Bank Limited ACN: 004 044 937 Xxxxx 0
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
FAX: (000) 0000 0000
ATTENTION: Xx Xxxxx Xxxxxxxxxx
--------------------------------- -------------------- -------------------------------------------------
The Toronto-Dominion Bank ARBN: 082 818 175 Xxxxx 00
000 Xxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
FAX: (000) 0000 0000
ATTENTION: Manager, Credit Administration
--------------------------------- -------------------- -------------------------------------------------
Paribas Group Australia Limited ACN: 002 174 843 Xxxxx 00
0 Xxxxxx Xxxxxx
Xxxxxx XXX 0000
FAX: (00) 0000 0000
ATTENTION: Relationship Manager
--------------------------------- -------------------- -------------------------------------------------
Commonwealth Bank of Australia ACN: 123 123 124 Xxxxx 00
000 Xxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
FAX: (00) 0000 0000
ATTENTION: Xxxx Xxxxxxxxx
--------------------------------- -------------------- -------------------------------------------------
89
--------------------------------- -------------------- -------------------------------------------------
Australia and New Zealand ACN: 005 357 522 Xxxxx 00
Banking Group Limited 000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
FAX: (00) 0000 0000
ATTENTION: Mr Xxxxx Xxxx
--------------------------------- -------------------- -------------------------------------------------
Westdeutsche Landesbank ARBN: 076 170 039 Xxxxx 00
Xxxxxxxxxxxx 00 Xxxxxxxx Xxxxxx
Xxxxxx XXX 0000
FAX: (00) 0000 0000
ATTENTION: Terreene Xxxxx
--------------------------------- -------------------- -------------------------------------------------
Bayerische Hypo-Und 1 Xxxxxxxxx Green, #00-00
Xxxxxxxxxxx XX, Xxxxxxxxx Xxxxxxxxx, 000000
Branch
FAX: 0000 00 000 0000
ATTENTION: Mr Saw Xxxx Xxxxx
--------------------------------- -------------------- -------------------------------------------------
Credit Agricole Indosuez ACN: 002 540 409 Xxxxx 00
Xxxxxxxxx Limited 000 Xxxx Xxxxxx
Xxxxxx XXX 0000
FAX: (00) 0000 0000
ATTENTION: Lily Miu/Xxx Xxx
--------------------------------- -------------------- -------------------------------------------------
The Royal Bank of Scotland plc Six Xxxxxxx Xxxx #00-00
Xxxxxxxxx 000000
FAX: 0000 00 000 0000
ATTENTION: Xxxxx Xxxx
--------------------------------- -------------------- -------------------------------------------------
United Overseas Bank Limited ARBN: 060 785 284 Xxxxx 0, 00 Xxxxxx Xxxxx
Xxxxxx XXX 0000
FAX: (00) 0000 0000
ATTENTION: Xxxxx Xxxx
--------------------------------- -------------------- -------------------------------------------------
IBJ Australia Bank Limited ACN: 009 150 109 Xxxxx 00
00 Xxxxxx Xxxxx
Xxxxxx XXX 0000
FAX: (00) 0000 0000
ATTENTION: Xxx Xxxxxxx/Xxxx Xxxxx
--------------------------------- -------------------- -------------------------------------------------
Bankgesellschaft Berlin AG Xx. 0 Xxxxx Xxxxx Xxxxxxxxx
Xxxxxx XX0X 0XX
FAX: 0000 00 000 000 0000
ATTENTION: Xxxxxx Xxxxxxxxx/Langhlan Xxxxxxxx
--------------------------------- -------------------- -------------------------------------------------
90
--------------------------------- -------------------- -------------------------------------------------
ABN AMRO Bank N.V., ARBN: 079 478 612 Xxxxx 00, 000 Xxxxxxx Xxxxxx
Xxxxxxxxxx Branch Xxxxxxxxx Xxx 0000
and FAX: (00) 0000 0000
ATTENTION: Xxxxx Xxxxxxxxx
ABN AMRO Australia Limited ACN: 000 862 797
--------------------------------- -------------------- -------------------------------------------------
National Australia Asset ACN: 062 806 884 Level 3 South, 000 Xxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxxxx Xxxxxxxxx Xxx 0000
FAX: (00) 0000 0000
ATTENTION: Xxxxx Xxxxxxxxxx/Xxxxxx
Xxxxxxxx/Xxxxx Xxxxxxxx
--------------------------------- -------------------- -------------------------------------------------
Commerzbank 0 Xxxxxxx Xxx #00 - 00
Xxxxxxxxxxxxxxxxxx, Xxxxxxxxx Xxxxxxx Xxxxx, Xxxxxxxxx 000000
Branch
FAX: 0000 00 000 0000
ATTENTION: Xxxxxxx Xxx/Xxxx Ruccker
--------------------------------- -------------------- -------------------------------------------------
Westpac Banking Corporation ARBN: 007 457 141 Xxxxx 0
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
FAX: (00) 0000 0000
ATTENTION: Xxxxx Xxxxxx
--------------------------------- -------------------- -------------------------------------------------
FACILITY B FINANCIERS
--------------------------------- -------------------- -------------------------------------------------
National Australia Bank Limited ACN: 004 044 937 Level 0 Xxxxx
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
FAX: (000) 0000 0000
ATTENTION: Xx Xxxxx Xxxxxxxxxx
--------------------------------- -------------------- -------------------------------------------------
The Toronto-Dominion Bank ARBN: 082 818 175 Xxxxx 00
000 Xxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
FAX: (000) 0000 0000
ATTENTION: Manager, Credit Administration
--------------------------------- -------------------- -------------------------------------------------
IBJ Australia Bank Limited ACN: 009 150 109 Xxxxx 00
00 Xxxxxx Xxxxx
Xxxxxx XXX 0000
FAX: (00) 0000 0000
ATTENTION: Xx Xxxxxx Xxxxxxxxxx, Head of
Corporate & Project Finance
--------------------------------- -------------------- -------------------------------------------------
91
--------------------------------- -------------------- -------------------------------------------------
Commonwealth Bank of Australia ACN: 123 123 124 Xxxxx 00
000 Xxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
FAX: (00) 0000 0000
ATTENTION: Mr Xxxx Xxxxxxxxx, Vice
President - Business Development
--------------------------------- -------------------- -------------------------------------------------
Australia and New Zealand ACN: 005 357 522 Xxxxx 00
Banking Group Limited 000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
FAX: (00) 0000 0000
ATTENTION: Mr Xxxxx Xxxx
--------------------------------- -------------------- -------------------------------------------------
Tokai Australia Finance ACN: 000 000 000 Level 19
Corporation Limited 00 Xxxxxx Xxxxx
Xxxxxx XXX 0000
FAX: (00) 0000 0000
ATTENTION: Xx Xxxxxxx Xxxxxx, Chief
Manager - Corporate Banking
--------------------------------- -------------------- -------------------------------------------------
Bank of Tokyo - Mitsubishi ACN: 008 606 273 Xxxxx 00
(Xxxxxxxxx) Limited 000 Xxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
FAX: (00) 0000 0000
ATTENTION: Xx Xxxxxx XxxXxxxx
--------------------------------- -------------------- -------------------------------------------------
Xxxxxx Guaranty Trust Company ARBN: 065 326 356 Xxxxx 00
of New York 000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
FAX: (00) 0000 0000
ATTENTION: Xx Xxxxxx Xxxxxxx Marangu
--------------------------------- -------------------- -------------------------------------------------
SG Australia Custodian Company ACN: 009 573 880 Level 20
Pty Ltd as trustee of the 000 Xxxxxxx Xxxxxx
Asset - 1 ENE sub-trust Xxxxxxxxx Xxx 0000
FAX: (00) 0000 0000
ATTENTION: Mr Xxxxxxx Xxxxxxx
--------------------------------- -------------------- -------------------------------------------------
UBS Australia Limited ACN: 003 059 461 Xxxxx 00
0 Xxxxxx Xxxxx
Xxxxxx XXX 0000
FAX: (00) 0000 0000
ATTENTION: Xx Xxxxxxx Xxxxxxx, Associate
Director
--------------------------------- -------------------- -------------------------------------------------
92
--------------------------------- -------------------- -------------------------------------------------
Westpac Banking Corporation ARBN: 007 457 141 Xxxxx 0
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
FAX: (00) 0000 0000
ATTENTION: Manager, Utilities
--------------------------------- -------------------- -------------------------------------------------
BA Australia Limited ACN: 004 617 641 Level 63
MLC Centre
00-00 Xxxxxx Xxxxx
Xxxxxx XXX 0000
FAX: (00) 0000 0000
ATTENTION: Vice President - Project
Finance
--------------------------------- -------------------- -------------------------------------------------
FACILITY C FINANCIERS
--------------------------------- -------------------- -------------------------------------------------
National Australia Bank Limited ACN: 004 044 937 Xxxxx 0
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
FAX: (000) 0000 0000
ATTENTION: Xx Xxxxx Xxxxxxxxxx
--------------------------------- -------------------- -------------------------------------------------
Westpac Banking Corporation ARBN: 007 457 141 Xxxxx 0
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
FAX: (00) 0000 0000
ATTENTION: Xxxxx Xxxxxx
--------------------------------- -------------------- -------------------------------------------------
Australia and New Zealand ACN: 005 357 522 Xxxxx 00
Banking Group Limited 000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
FAX: (00) 0000 0000
ATTENTION: Mr Xxxxx Xxxx
--------------------------------- -------------------- -------------------------------------------------
FACILITY D FINANCIERS
--------------------------------- -------------------- -------------------------------------------------
The Chase Manhattan Bank ARBN: 074 112 011 Xxxxx 00
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
FAX: (00) 0000 0000
ATTENTION: Mr Xxxx Xxxxx
--------------------------------- -------------------- -------------------------------------------------
Commonwealth Bank of Australia ACN: 123 123 124 Xxxxx 00
000 Xxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
FAX: (00) 0000 0000
ATTENTION: Xxxx Xxxxxxx
--------------------------------- -------------------- -------------------------------------------------
93
--------------------------------- -------------------- -------------------------------------------------
FACILITY E FINANCIERS
--------------------------------- -------------------- -------------------------------------------------
National Australia Bank Limited ACN: 004 044 937 Xxxxx 0
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
FAX: (000) 0000 0000
ATTENTION: Xx Xxxxx Xxxxxxxxxx
--------------------------------- -------------------- -------------------------------------------------
Westpac Banking Corporation ARBN: 007 457 141 Xxxxx 0
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
FAX: (00) 0000 0000
ATTENTION: Xxxxx Xxxxxx
--------------------------------- -------------------- -------------------------------------------------
94
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SCHEDULE 3 HEDGE COUNTERPARTIES
--------------------------------------------------------------------------------
---------------------------------- ------------------- -------------------------------------------------
NAME OF HEDGE COUNTERPARTY ACN/ARBN NOTICE DETAILS
---------------------------------- ------------------- -------------------------------------------------
Bank of America, National ARBN: 064 874 531 Level 63, MLC Centre, 00-00 Xxxxxx Xxxxx,
Xxxxxxxxxxx Xxxxxx, XXX, 0000
FAX: (000) 0000 0000
ATTENTION: Vice President
---------------------------------- ------------------- -------------------------------------------------
Deutsche Bank AG ARBN: 064 164 162 Xxxxx 00
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
FAX: (000) 0000 0000
ATTENTION: Manager, Loans Administration
---------------------------------- ------------------- -------------------------------------------------
National Australia Bank Limited ACN: 004 044 937 Xxxxx 0
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
FAX: (000) 0000 0000
ATTENTION: Xx Xxxxx Xxxxxxxxxx
---------------------------------- ------------------- -------------------------------------------------
SG Australia Limited ACN: 002 093 021 Xxxxx 00
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
FAX: (00) 0000 0000
ATTENTION: Mr Xxxxxxx Xxxxxxx
---------------------------------- ------------------- -------------------------------------------------
The Toronto-Dominion Bank ARBN: 082 818 175 Xxxxx 00
000 Xxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
FAX: (000) 0000 0000
ATTENTION: Manager, Credit Administration
---------------------------------- ------------------- -------------------------------------------------
Westpac Banking Corporation ARBN: 007 457 141 Xxxxx 0
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
FAX: (00) 0000 0000
ATTENTION: Xxxxx Xxxxxx
---------------------------------- ------------------- -------------------------------------------------
Citibank, N.A. ARBN: 072 814 058 Xxxxx 00
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
FAX: (00) 0000 0000
ATTENTION: Xxxx Xxxxx
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95
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NAME OF HEDGE COUNTERPARTY ACN/ARBN NOTICE DETAILS
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Australia and New Zealand Banking ACN: 005 357 522 Xxxxx 00
Group Limited 000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
FAX: (00) 0000 0000
ATTENTION: Mr Xxxxx Xxxx
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SCHEDULE 4 NEW CREDITOR ACCESSION DEED
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DEED dated
BETWEEN:
[ ] (the ("NEW CREDITOR"); and
[[* if assignment or novation][ ] (the ("RETIRING CREDITOR"); and]
[ ] (the ("TRUSTEE") for itself and on behalf of the other
parties to the Deed of Common Terms.
DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this deed, " Deed of Common Terms" means the deed of common terms
dated 24 February 1999 between the Trustee and others. Terms defined in
the Deed of Common Terms have the same meaning in this deed.
1.2 INTERPRETATION
Clause 1.2 of the Deed of Common Terms applies to this deed.
2. ACCESSION AND RELEASE
2.1 [[* if New Creditor by assignment or novation]With effect from and
including [the date of this deed/other date as appropriate]:
(a) the New Creditor assumes the obligations and acquires the rights
of the Retiring Creditor [or specify portion of rights acquired]
under the Deed of Common Terms and each [Senior/Junior] Finance
Document, as a [Senior/Junior] Creditor;
(b) each other party to the Deed of Common Terms and each
[Senior/Junior] Finance Document acquires corresponding rights
against and assumes corresponding obligations towards the New
Creditor; and
(c) the Retiring Creditor is released from its obligations [or
specify portion of obligations] under the Deed of Common Terms
but without prejudice to any existing liability).]
2.2 [[* If New Creditor not by assignment or novation] With effect from and
including [the date of this deed/other date as appropriate]:
(a) the New Creditor assumes the obligations and acquires the rights
of a [Senior/Junior] Creditor under the Deed of Common Terms; and
(b) each other party to the Deed of Common Terms and each
[Senior/Junior] Finance Document acquires corresponding rights
against and assumes corresponding obligations towards the New
Creditor.]
2.3 This deed and [nominate any other document] is a [Senior/Junior]
Finance Document and the New Creditor is a [Senior Creditor/Junior
Creditor] for the purposes of the Deed of Common Terms.
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3. NOTICES
For the purpose of the [Senior/Junior] Finance Documents, the address
for correspondence of the New Creditor is the address set out below: [
]
4. LAW
This deed is governed by the laws of the Victoria.
5. ATTORNEYS
Each attorney executing this certificate states that he or she has no
notice of revocation or suspension of his or her power of attorney.
EXECUTED as a deed.
[Execution provisions]
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SCHEDULE 5 NOTICES
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CORE BORROWERS AND OBLIGORS TEXAS
Address: Xxxxx 00 Xxxxxxx: Energy Plaza
000 Xxxxxxx Xxxxxx 0000 Xxxxx Xxxxxx
Xxxxxxxxx Xxx 0000 Xxxxxx, Xxxxx 00000
Xxxxxx Xxxxxx of America
Fax: 0000 0000
Fax: (000) 000 0000
Attention: Managing Director Attention:
BA AUSTRALIA LIMITED CITIBANK, N.A.
Address: Level 63 Address: Xxxxx 00
XXX Xxxxxx 000 Xxxxxxx Xxxxxx
19-29 Xxxxxx Place Melbourne Vic 3000
Xxxxxx XXX 0000
Fax: 0000 0000
Fax: (00) 0000 0000
Attention: Mr Xxxx Xxxxx
Attention: Vice President - Project Finance
WESTPAC BANKING CORPORATION FACILITY A AGENT AND FACILITY B AGENT
Address: Level 9 Address: Xxxxx 0
000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000 Xxxxxxxxx Xxx 0000
Fax: 0000 0000 Fax: 0000 0000
Tel: 0000 0000
Attention: Manager Utilities Attention: Head of Agency
TRUSTEE
Address: Xxxxx 0
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: 0000 0000
Tel: 0000 0000
Attention: Head of Agency
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FACILITY D AGENT FINANCIERS
Address: Level 35 As set out in schedule 2
AAP Center
000 Xxxxxx Xxxxxx
Xxxxxx XXX 0000
Fax: (00) 0000 0000
Attention: Xxxxxx Xxxxx
HEDGE COUNTERPARTIES
As set out in schedule 3
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SCHEDULE 6 - DEED OF SUBORDINATION
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DATED:
PARTIES: [ ] ("SUBORDINATED CREDITOR")
[ ] ("OBLIGOR")
[ ] ("TRUSTEE") for itself and on behalf of
the Senior Creditors under the Deed of Common Terms
1 DEFINITIONS AND INTERPRETATION
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DEFINITIONS
1.1 In this deed, the following words have these meanings unless
the contrary intention appears:
DEED OF COMMON TERMS means the deed of common terms dated 24
February 1999 between the Trustee and others.
SUBORDINATED DEBT means any amount actually or contingently owing
by the Obligor to the Subordinated Creditor [under or in
connection with the Subordinated Debt Documents].
SUBORDINATED DEBT DOCUMENTS means [specify details of
subordinated debt documents].
1.2 Terms defined in the Deed of Common Terms have the same
meaning in this deed.
INTERPRETATION
1.3 Clause 1.2 of the Deed of Common Terms applies to this deed.
2 SUBORDINATION
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2.1 With effect from and including the [date of this deed]:
(a) the Subordinated Creditor and Obligor agree with the
Trustee that the Subordinated Debt is subordinated to
the Senior Debt in the same manner as Junior Debt is
subordinated to the Senior Debt in accordance with the
Deed of Common Terms and as if references in the Deed
of Common Terms to:
(i) Junior Creditor included a reference to the
Subordinated Creditor;
(ii) Junior Debt included a reference to the
Subordinated Debt; and
(iii) Junior Finance Documents included a reference to
the Subordinated Debt Documents; and
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(b) the Subordinated Creditor agrees to be bound by, and to
assume the obligations of a Junior Creditor as if it
were a party to the Deed of Common Terms; and
(c) the Subordinated Creditor acknowledges that the Trustee
on its own behalf and on behalf of the Senior Creditors
acquires corresponding rights against the Subordinated
Creditor as if were a party to the Deed of Common
Terms.
2.2 The subordination of the Subordinated Debt is intended to
operate as a "debt subordination" (as defined in section
563C(2) of the Corporations Law) by the Subordinated
Creditor.
3 LAWS
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This deed is governed by the law in force in Victoria.
EXECUTED as a deed.
[Execution clauses]
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SCHEDULE 7 NEW OBLIGOR ACCESSION DEED
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DEED dated
BETWEEN:
[*] [(ACN [*])] (the "NEW OBLIGOR"); and
[*] (the "TRUSTEE") for itself and on behalf of the other parties to
the Deed of Common Terms.
OPERATIVE PROVISIONS:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this deed "Deed of Common Terms" means the deed of common terms dated
[*] between [ ], the Trustee and others.
Definitions in the Deed of Common Terms apply in this deed.
1.2 INTERPRETATION
Clause 1.2 of the Deed of Common Terms applies to this deed.
2. ACCESSION
With effect from and including the [date of this deed]:
(a) the New Obligor assumes the obligations and acquire the rights of
Obligor under the Deed of Common Terms;
(b) each other party to the Deed of Common Terms acquires
corresponding rights against and assumes corresponding
obligations towards the New Obligor as an Obligor: and
(c) the New Obligor represents and warrants to and for the benefit
of each Senior Creditor each of the representations and
warranties in clause 5.1 of the Deed of Common Terms.
3. NOTICES
For the purpose of the Finance Documents, the address for correspondence
of the New Obligor is the address set out below: [ ]
4. LAW
This deed is governed by the laws of Victoria.
4. ATTORNEYS
Each attorney executing this deed states that he or she has no notice of
revocation or suspension of his or her power of attorney.
[Execution provisions]
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EXECUTION PAGE
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