Exhibit 10(hh)
Amendment and
Restatement Deed - Deed
of Common Terms
Dated 26 February 2004
TXU Australia Holdings Pty Ltd (as "Borrower," a "Guarantor" and as an
"Obligor")
TXU Australia Group Pty Ltd and each of the companies specified in
part 1 of schedule 1 ("Obligors")
TXU Australia Holdings (AGP) Pty Ltd
TXU Australia (LP) No 1 Limited
TXU Australia (LP) No 2 Limited ("Partnership")
Each of the financial institutions specified in items 1, 3 and 4 of
schedule 2
("Senior Creditors")
TXU Australia Holdings (AGP) Pty Ltd
TXU Corp. ("TXU"), TXU Australia (LP) No. 1 Limited,
TXU Australia (LP) No. 2 Limited and
TXU Australia Pty Ltd ("Junior Creditors")
Each of the financial institutions specified in item 2 of schedule 2
("Retiring Financiers")
National Australia Bank Limited ("Retiring Trustee")
ANZ Fiduciary Services Pty Ltd ("New Trustee")
Australia and New Zealand Banking Group Limited
("New Syndicated Facilities Agent")
National Australia Bank Limited ("Retiring Syndicated Facilities Agent")
Mallesons Xxxxxxx Xxxxxx
Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
T x00 0 0000 0000
F x00 0 0000 0000
DX 101 Melbourne
7036715_15
Details i
General terms 6
Part 1 - Refinancing Facility 6
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1 Conditions Precedent - Deed of Common Terms (Refinancing) 6
1.1 Debt Refinance Date 6
1.2 Conditions to Debt Refinance Date 6
1.3 Form of certification 7
1.4 Benefit of conditions 7
1.5 Retiring Trustee appoints New Syndicated Facilities Agent 7
1.6 Senior Creditors to indemnify 7
1.7 Borrower back-to-back indemnity 7
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2 Debt Refinance Date 7
2.1 New Financiers/Retiring Financiers 7
2.2 New Creditor Accession Deed 8
2.3 Representations 8
2.4 Amendments to Deed of Common Terms 8
2.5 Syndicated Facilities Agent 9
2.6 Cancellation of Existing Facilities Commitment 9
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3 Acknowledgments 9
3.1 Obligor's consent 9
3.2 Guarantor's confirmation 9
3.3 Junior Creditor's confirmation 10
3.4 General confirmations 10
3.5 Rights not affected 10
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4 Retiring Trustee and New Trustee 10
4.1 Retirement 10
4.2 Appointment 11
4.3 Transfer 11
4.4 Release 11
4.5 Acknowledgements 11
4.6 Documents for Retiring Trustee 12
4.7 Further steps 12
Part 2 - IPO Terms 12
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5 Conditions Precedent - Deed of Common Terms (IPO) 12
5.1 IPO Effective Date 12
5.2 Conditions to IPO Effective Date 12
5.3 Form of certification 12
5.4 Benefit of conditions 13
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6 IPO Effective Date 13
6.1 Effect of IPO Effective Date 13
6.2 Amendments to Deed of Common Terms 13
6.3 Representations by Guarantors and Obligors 13
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7 Acknowledgments 13
7.1 Xxxxxxx's Consent 13
7.2 General confirmations 14
7.3 Rights not affected 14
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(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 1
Deed of Common Terms
26 February 2004
Part 3 - Miscellaneous 14
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8 Cost, Charges and Expenses 14
8.1 What the Borrower agrees to pay 14
8.2 Independent Consultants Costs 15
8.3 Borrower's indemnity 15
8.4 Borrower to pay 16
8.5 Inconsistency 16
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9 Notices 16
9.1 Form 16
9.2 Delivery 16
9.3 When effective 17
9.4 Receipt - postal 17
9.5 Receipt - fax 17
9.6 Receipt - eAgency 17
9.7 Receipt - general 17
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10 Miscellaneous 17
10.1 Counterparts 17
10.2 Applicable law 17
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11 Definitions 17
11.1 Definitions 17
11.2 Deed of Common Terms 21
11.3 Senior Finance Document 21
11.4 Definition of Senior Creditor 21
Schedule 1 - Obligors 23
Schedule 2 - Senior Creditors 25
Item 1 - Continuing Financiers 25
Item 2 - Retiring Financiers 27
Item 3 - Continuing Hedge Counterparties 28
Item 4 - New Financiers 30
Schedule 3 - Conditions Precedent - Refinancing (clause 1.2) 31
Schedule 4 - Conditions Precedent to IPO Effective Date (clause 5.2(a)) 35
Schedule 5 - Form of IPO Guarantee 40
Schedule 1 - Guarantors 54
Schedule 6 - Form of Solvency Certificate 58
Annexure A - Deed of Common Terms (Refinancing) 60
Annexure B - Deed of Common Terms (IPO) 61
Signing page i
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(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 2
Deed of Common Terms
26 February 2004
Amendment and Restatement Deed - Deed of Common Terms
Details
Interpretation - definitions are at the end of the General terms
Parties Borrower, Partnership, Obligors, Senior Creditors,
Retiring Financiers, Junior Creditors, Retiring Trustee,
New Trustee, New Syndicated Facilities Agent and Retiring
Syndicated Facilities Agent, each as described below.
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Borrower Name TXU Australia Holdings Pty Ltd
ABN 97 086 006 859
Incorporated in Australia
Borrower's address Level 33, 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx
Fax (00 0) 0000 0000
Attention Assistant Treasurer
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Partnership
Name TXU Australia Holdings
(Partnership) Limited Partnership
(ABN 40 315 470 807) a limited
partnership formed and registered
under the Partnership Act 1958 of
Victoria, the general partner of
which is:
TXU Australia Holdings (AGP)
Pty Ltd
ABN 16 086 014 931
Incorporated in: Australia
and the limited
partners of which
are:
Name TXU Australia (LP) No. 1 Limited
ARBN 086 406 733
Incorporated in: England and Wales
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(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 1
Deed of Common Terms
26 February 2004
and
Name TXU Australia (LP) No. 2 Limited
ARBN 086 406 724
Incorporated in: England and Wales
Partnership's Level 33, 000 Xxxxxx Xxxxxx,
address Melbourne, Victoria
Fax (00 0) 0000 0000
Attention Assistant Treasurer
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See Schedule 1 for details
Obligors
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Senior Continuing Financiers, Continuing
Creditors Hedge Counterparties and New
Financiers, each as described
below
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Continuing Each person whose details are set
Financiers out in item 1 of Schedule 2
("Senior Creditors - Continuing
Financiers")
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Retiring Each person whose details are set
Financiers out in item 2 of Schedule 2
("Senior Creditors - Retiring
Financiers")
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Continuing Each person whose details are set
Hedge out in item 3 of Schedule 2
Counterparties ("Senior Creditors - Continuing
Hedge Counterparties)
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New Each person whose details are set
Financiers out in item 4 of Schedule 2
("Senior Creditors - New
Financiers")
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Junior TXU, General Partner, each Limited
Creditors Partner and TXUA, each as
described below
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TXU Corp., a corporation
TXU Name organised under the laws of the
State of Texas, United States
of America
Address Energy Plaza, 0000 Xxxxx Xxxxxx,
Xxxxxx, Xxxxx 00000,
Xxxxxx Xxxxxx xx Xxxxxxx
Fax 0 (000) 000 0000
Attention Xx Xxxx Xxxxxx
Xxxxxxxxx & Assistant Secretary
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General Partner Name TXU Australia Holdings (AGP)
Pty Ltd
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(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 2
Deed of Common Terms
26 February 2004
ABN 16 086 014 931
Address Level 00, 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx
Fax (00 0) 0000 0000
Attention Assistant Treasurer
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Limited Partners Name TXU Australia (LP) No. 1 Limited
ARBN 086 406 733
Incorporated In England and Wales
and
Name TXU Australia (LP) No. 2 Limited
ARBN 086 406 724
Incorporated In England and Wales
Address Level 00, 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx
Fax (00 0) 0000 0000
Attention Assistant Treasurer
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TXU Australia Pty Ltd
TXUA Name
ABN 96 000 000 000
Address Level 00, 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx
Fax (00 0) 0000 0000
Attention Assistant Treasurer
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National Australia Bank Limited
Retiring Trustee Name
ABN 12 004 044 937
Address Level 00
000 Xxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Telephone (00 0) 0000 0000
Fax (00) 0000 0000
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(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 3
Deed of Common Terms
26 February 2004
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ANZ Fiduciary Services Pty Ltd
New Trustee Name
ABN 91 100 709 493
Address Level 00, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx, 0000
Telephone (00 0) 0000 0000
Fax (00 0) 0000 0000
Attention Transaction Management &
Execution, Credit
Origination and Sales
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Retiring Syndicated Name National Australia Bank Limited
Facilities Agent
ABN 12 000 000 000
Address Level 00, 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx
Telephone (00 0) 0000 0000
Fax (00 0) 0000 0000
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Australia and New Zealand Banking
Group Limited
New Syndicated Name
Facilities Agent
ABN 11 005 357 522
Address Level 00, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx, 0000
Telephone (00 0) 0000 0000
Fax (00 0) 0000 0000
Attention Transaction Management
& Execution, Credit
Origination and Sales
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Recitals A The parties intend to amend the Deed of
Common Terms on the Debt Refinance Date and on
the IPO Effective Date subject to satisfying
relevant conditions precedent.
B On the Debt Refinance Date, the Retiring
Trustee will retire and the New Trustee will be
appointed as Trustee.
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(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 4
Deed of Common Terms
26 February 2004
C On the Debt Refinance Date:
(i) the New Financiers and New Syndicated
Facilities Agent will become a party
to the Deed of Common Terms;
(ii) the Retiring Financiers will cease to
be Financiers and Senior Creditors;
(iii) the Retiring Syndicated Facilities
Agent will cease to be the Syndicated
Facilities Agent; and
(iv) the Existing Facilities will be
cancelled.
D On the IPO Effective Date, the New Guarantors
become Guarantors under the Deed of Common
Terms and the Guarantors under the Original
Guarantee and the New Guarantee will be
released as Guarantors.
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Governing law Victoria
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Date of deed See Signing page
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(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 5
Deed of Common Terms
26 February 2004
Amendment and Restatement Deed - Deed of
Common Terms
General terms
Part 1 - Refinancing Facility
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1 Conditions Precedent - Deed of Common Terms
(Refinancing)
1.1 Debt Refinance Date
Subject to clause 1.2 ("Conditions to Debt Refinance Date"), the
Retiring Trustee agrees to notify the Borrower and each of the Senior
Creditors of a date to be the Debt Refinance Date, (being a date on or
after the date of notification by the Retiring Trustee).
1.2 Conditions to Debt Refinance Date
The Retiring Trustee may only give notice specifying a date as the Debt
Refinance Date when the Retiring Trustee has received:
(a) a notice from the New Syndicated Facilities Agent that it has
received every item listed in schedule 2 ("Conditions
precedent") of the Loan Note Subscription Agreement and
confirming that the conditions precedent in schedule 2 of the
Loan Note Subscription Agreement have been met; and
(b) a notice from the New Syndicated Facilities Agent that it has
received a notice from each Senior Creditor under the Working
Capital Facility Agreement that those Senior Creditors have
received every item listed in schedule 1 ("Conditions
precedent") to the Working Capital Facility Agreement and
confirming that the conditions precedent in schedule 1 of the
Working Capital Facility Agreement have been met; and
(c) a notice from the New Syndicated Facilities Agent that it has
received every item listed in schedule 3 ("Conditions
precedent - Refinancing") to this deed in form and substance
satisfactory to all Senior Creditors or the New Syndicated
Facilities Agent (as indicated in that schedule alongside the
relevant item); and
(d) a notice from the New Syndicated Facilities Agent that it has
received a certificate from the Borrower that no Event of
Default or Potential Event of Default continues unremedied
which must be:
(i) in form and in substance satisfactory to the New
Syndicated Facilities Agent; and
(ii) given no earlier than 7 days prior to the Debt
Refinance Date.
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(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 6
Deed of Common Terms
26 February 2004
1.3 Form of certification
Anything required to be certified under clause 1.2 ("Conditions to Debt
Refinance Date") must be certified by a director or secretary of the
relevant Obligor or New Obligor as being true and complete as at a date
no earlier than seven days prior to the date of this deed.
1.4 Benefit of conditions
Each condition precedent to the Debt Refinance Date set out in clause
1.2 ("Conditions to Debt Refinance Date") is for the sole benefit of
the Senior Creditors and may only be waived by the Retiring Trustee
upon the instructions of all of the Senior Creditors (as to which the
Retiring Trustee will act on notice from the New Syndicated Facilities
Agent).
1.5 Retiring Trustee appoints New Syndicated Facilities Agent
(a) The Retiring Trustee appoints the New Syndicated Facilities
Agent to review and obtain instructions from the Senior
Creditors in relation to the satisfaction or waiver of the
conditions precedent set out in schedule 3 ("Conditions
Precedent - Refinancing").
(b) Notwithstanding anything to the contrary in the Deed of Common
Terms, the Retiring Trustee is not liable or responsible for
the actions (or any omission to act) of the New Syndicated
Facilities Agent under this clause and in providing the notice
under clause 1.1 ("Debt Refinance Date") is entitled to rely
solely on the notices received from the New Syndicated
Facilities Agent without having to enquire whether anything
(including, without limitation, the satisfaction of any
conditions precedent) set out in the notices referred to in
clause 1.2 ("Conditions to Debt Refinance Date") is correct or
not.
1.6 Senior Creditors to indemnify
Each Senior Creditor individually in accordance with its Share
indemnifies the New Syndicated Facilities Agent and the Retiring
Trustee against any liability or loss arising from, and any Costs
incurred in connection with, the New Syndicated Facilities Agent or the
Retiring Trustee acting in accordance with clause 1 ("Conditions
Precedent - Deed of Common Terms (Refinancing)) except to the extent
such liability, loss or Costs results from the fraud, gross negligence
or wilful misconduct of the New Syndicated Facilities Agent or Retiring
Trustee, as the case may be.
1.7 Borrower back-to-back indemnity
The Borrower indemnifies 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 1.6 ("Senior Creditor to
indemnify").
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2 Debt Refinance Date
2.1 New Financiers/Retiring Financiers
On the Debt Refinance Date:
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(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 7
Deed of Common Terms
26 February 2004
(a) each New Financier becomes a party to the Deed of Common Terms
and assumes the obligations and acquires the rights of a
Financier and Senior Creditor under the Deed of Common Terms
and each other party to the Deed of Common Terms acquires
corresponding rights against and assumes corresponding
obligations towards the New Financier; and
(b) each Retiring Financier ceases to be a party to the Deed of
Common Terms in the capacity of a Financier and Senior
Creditor (unless it is also a Continuing Hedge Counterparty)
and the Retiring Financier is discharged from any further
obligation under any Senior Finance Document (this discharge
does not prejudice any accrued right or obligation).
2.2 New Creditor Accession Deed
This deed is a New Creditor Accession Deed under the Deed of Common
Terms with respect to each New Financier, each Continuing Financier and
each Continuing Hedge Counterparty.
Accordingly on and from the Debt Refinance Date:
(a) this deed and the Loan Note Subscription Agreement are each a
Senior Finance Document and a Bank Finance Document and each
New Financier and Continuing Financier that is a party to the
Loan Note Subscription Agreement and the New Syndicated
Facilities Agent is a Senior Creditor for the purposes of the
Deed of Common Terms; and
(b) this deed and the Working Capital Facility Agreement are each
a Senior Finance Document and a Bank Finance Document and each
New Financier and Continuing Financier that is a party to the
Working Capital Facility Agreement is a Senior Creditor for
the purposes of the Deed of Common Terms; and
(c) this deed and each Hedge Agreement is a Senior Finance
Document for the purposes of the Deed of Common Terms.
2.3 Representations
On the date of this deed as if the Debt Refinance Date had already
occurred and on the Debt Refinance Date each Obligor represents and
warrants to and for the benefit of each Senior Creditor each of the
representations and warranties in clause 5 of the Deed of Common Terms.
2.4 Amendments to Deed of Common Terms
(a) On the Debt Refinance Date, the Deed of Common Terms is
amended to the extent necessary to result in the terms of the
Deed of Common Terms being as set out in Annexure A ("Deed of
Common Terms (Refinancing)").
(b) Each of the parties acknowledges and agrees that the
amendments to the Deed of Common Terms do not and are not
intended to novate, replace or rescind the Deed of Common
Terms.
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(c)Xxxxxxxxx Xxxxxxx Xxxxxx Amendment and Restatement Deed - 8
Deed of Common Terms
26 February 2004
2.5 Syndicated Facilities Agent
On the Debt Refinance Date:
(a) National Australia Bank Limited ceases to be a party to the
Deed of Common Terms in the capacity of Syndicated Facilities
Agent; and
(b) the New Syndicated Facilities Agent becomes a party to the
Deed of Common Terms in the capacity of Syndicated Facilities
Agent and assumes the obligations and acquires the rights of
the Syndicated Facilities Agent and a Senior Creditor under
the Deed of Common Terms and each other party to the Deed of
Common Terms acquires corresponding rights against and assumes
corresponding obligations towards the New Syndicated
Facilities Agent.
2.6 Cancellation of Existing Facilities Commitment
The Partnership, each Senior Creditor and each Retiring Financier under
the Existing Facilities acknowledges that on receipt by those Senior
Creditors and Retiring Financiers of the amount owing to them in
connection with the Existing Facilities on the Debt Refinance Date the
commitment of each of those Senior Creditors and Retiring Financiers
under the Existing Facilities is cancelled.
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3 Acknowledgments
3.1 Obligor's consent
Each Obligor and each Junior Creditor consents to:
(a) the amendments to the Deed of Common Terms as set out in Annexure A
to this deed; and
(b) the amendments to the Transaction Documents as contemplated by this
deed.
3.2 Guarantor's confirmation
On and immediately after the Debt Refinance Date each Guarantor under
paragraph (a) and (b) of the definition of Guarantor confirms that:
(a) the Original Guarantee and the New Guarantee to which each is
a party continue in full force and effect; and
(b) the amendments to the Deed of Common Terms do not affect the
validity or enforceability of the Original Guarantee or the
New Guarantee; and
(c) they consent to any increased liabilities incurred by them
under the Original Guarantee or the New Guarantee as a result
of the Loan Note Subscription Agreement, the Working Capital
Facility Agreement, any new Hedge Agreement or the amendments
to the Transaction Documents.
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(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 9
Deed of Common Terms
26 February 2004
3.3 Junior Creditor's confirmation
On and immediately after the Debt Refinance Date, each Junior Creditor
confirms that:
(a) no obligation of the Junior Creditor arising under the Deed of
Common Terms is released or abrogated, prejudiced or affected
by the amendments to the Deed of Common Terms or the
amendments to the Transaction Documents contemplated by this
deed; and
(b) the rights of the Senior Creditors are not affected by the
amendments to the Deed of Common Terms or the amendments to
the Transaction Documents contemplated by this deed; and
(c) the Junior Debt remains subordinated to the Senior Debt in
accordance with the Deed of Common Terms subject only to the
changes expressly contemplated by clause 2 ("Debt Refinance
Date").
3.4 General confirmations
Each party to this deed confirms that:
(a) on and from the Debt Refinance Date, the Deed of Common Terms
continues in full force and effect subject only to the changes
expressly contemplated by clause 2 ("Debt Refinance Date");
and
(b) the changes to the Deed of Common Terms under clause 2 ("Debt
Refinance Date") do not affect the validity or enforceability
of the Deed of Common Terms or any other Transaction Document;
and
(c) any Senior Creditor who was not a Senior Creditor under the
Deed of Common Terms prior to the Debt Refinance Date, does
not have any liability for any act, matter or thing arising
under the Deed of Common Terms before the Debt Refinance Date.
3.5 Rights not affected
Nothing in clause 2 ("Debt Refinance Date"):
(a) prejudices or adversely affects any right, power, authority,
discretion or remedy arising under the Transaction Documents
on, before or after the Debt Refinance Date; or
(b) discharges, releases or otherwise affects any liability or
obligation arising under the Transaction Documents on, before
or after the Debt Refinance Date,
except as expressly contemplated in that clause.
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4 Retiring Trustee and New Trustee
4.1 Retirement
With effect on and from the Debt Refinance Date, the Retiring Trustee
retires as Trustee of the TXU Australia Holdings Trust.
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(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 10
Deed of Common Terms
26 February 2004
4.2 Appointment
With effect on and from the Debt Refinance Date, the New Trustee is
appointed as trustee of the TXU Australia Holdings Trust. The New
Trustee accepts its appointment as trustee of the TXU Australia
Holdings Trust.
4.3 Transfer
With effect on and from the Debt Refinance Date, the Retiring Trustee
transfers and assigns the Trust Fund to the New Trustee, which includes
for the avoidance of doubt the benefit of the Original Guarantee and
the New Guarantee. The New Trustee accepts this assignment and agrees
to hold the Trust Fund on the terms of the Deed of Common Terms.
4.4 Release
Immediately following the appointment of the New Trustee, the Retiring
Trustee is discharged from any further obligation under the Senior
Finance Documents. (This discharge does not prejudice any accrued right
or obligation.)
4.5 Acknowledgements
Each party to this deed acknowledges that:
(a) the Retiring Trustee has given the appropriate notice period
under the Deed of Common Terms to the Partnership and to each
Senior Creditor of its intention to retire as Trustee of the
TXU Australia Holdings Trust;
(b) the Partnership approves of the appointment of the New Trustee
(subject to the terms of this clause 4 ("Retiring Trustee and
New Trustee"));
(c) the Retiring Trustee is a party to this deed in its capacity
as Trustee under the Deed of Common Terms and the Syndicated
Facilities Agreement, and in accordance with its powers under
the Syndicated Facilities Agreement and the Deed of Common
Terms; and
(d) with effect on and from the Debt Refinance Date:
(i) the New Trustee and each other party to the Senior
Finance Documents have the same rights and obligations
among themselves as they would have had if the New
Trustee had been a party to the Senior Finance Documents
to which the Trustee is a party at the dates of those
documents; and
(ii) each reference in the Senior Finance Documents to the
Trustee is read as a reference to the New Trustee; and
(e) the New Trustee has no obligations under the Senior Finance
Documents before the Debt Refinance Date; and
(f) in the case of the Borrower, the Partnership and TXU8, this
deed constitutes notice to each of them of the assignment of
the benefit of the Original Guarantee and the New Guarantee
from the Retiring Trustee to the New Trustee.
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(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 11
Deed of Common Terms
26 February 2004
4.6 Documents for Retiring Trustee
The Retiring Trustee agrees to deliver to the New Trustee:
(i) all original documents relating to the TXU Australia
Holdings Trust and the Trust Fund in its possession;
and
(ii) such transfers, requests or notices of assignment or
other documents in respect of the Trust Fund to
record the transfer of the Trust Fund to the New
Trustee, as are reasonably requested by the New
Trustee.
4.7 Further steps
The Retiring Trustee agrees, at the Borrower's reasonable expense, to
do anything the New Trustee reasonably asks (such as obtaining
consents, signing, producing and delivering documents and updating any
registers) to give effect to the transactions contemplated by this
deed.
Part 2 - IPO Terms
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5 Conditions Precedent - Deed of Common Terms (IPO)
5.1 IPO Effective Date
Subject to clause 5.2 ("Conditions to IPO Effective Date"), the New
Trustee agrees to notify the Borrower and each of the Senior Creditors
of a date to be the IPO Effective Date.
5.2 Conditions to IPO Effective Date
The New Trustee may only give notice specifying a date as the IPO
Effective Date when the New Trustee has received:
(a) every item listed in schedule 4 ("Conditions precedent to IPO
Effective Date") ("Conditions Precedent") to this deed in form
and substance satisfactory to all of the Senior Creditors or
the New Trustee (as indicated in that schedule alongside the
relevant item); and
(b) a certificate from the Borrower that no Event of Default or
Potential Event of Default continues unremedied, which must
be:
(i) in form and substance satisfactory to the New Trustee;
and
(ii) given no earlier than 7 days prior to the IPO Effective
Date.
5.3 Form of certification
Anything required to be certified under clause 5.2 ("Conditions to IPO
Effective Date") must be certified by a director or secretary of the
relevant Obligor as being true and complete as at a date no earlier
than seven days prior to the proposed IPO Effective Date and on the
basis that the IPO Guarantee is a Transaction Document at that date.
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(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 12
Deed of Common Terms
26 February 2004
5.4 Benefit of conditions
Each condition precedent to the IPO Effective Date occurring set out in
clause 5.2 ("Conditions to IPO Effective Date") is for the sole benefit
of the Senior Creditors and may only be waived by the New Trustee upon
the instructions of all Senior Creditors.
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6 IPO Effective Date
6.1 Effect of IPO Effective Date
On the IPO Effective Date:
(a) the Deed of Common Terms is amended to the extent necessary to
result in the terms of the Deed of Common Terms being as set
out in Annexure B ("Deed of Common Terms (IPO)"); and
(b) each New Guarantor becomes a Guarantor under the Deed of
Common Terms and a Credit Support Provider under each Hedge
Agreement; and
(c) the IPO Guarantee becomes a Credit Support Document under each
Hedge Agreement; and
(d) the IPO Effective Date occurs for the purpose of the Loan Note
Subscription Agreement and the Working Capital Facility
Agreement; and
(e) the Guarantors under the Original Guarantee and the New
Guarantee are released from the Original Guarantee and the New
Guarantee.
6.2 Amendments to Deed of Common Terms
Each of the parties acknowledges and agrees that the amendments to the
Deed of Common Terms on the IPO Effective Date do not and are not
intended to novate, replace or rescind the Deed of Common Terms.
6.3 Representations by Guarantors and Obligors
On the IPO Effective Date each Obligor and each New Guarantor
represents and warrants to and for the benefit of each Senior Creditor
each of the representations and warranties in clause 5 of the Deed of
Common Terms.
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7 Acknowledgments
7.1 Obligor's Consent
Each Obligor consents to:
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(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 13
Deed of Common Terms
26 February 2004
(a) the amendments to the Deed of Common Terms as set out in
Annexure B to this deed; and
(b) the amendments to the Transaction Documents as contemplated
by this deed.
7.2 General confirmations
Each party to this deed confirms and agrees that:
(a) on the IPO Effective Date, the Deed of Common Terms continues
in full force and effect subject only to the changes
contemplated by clause 6 ("IPO Effective Date"); and
(b) the changes to the Deed of Common Terms under clause 6 ("IPO
Effective date") do not affect the validity or enforceability
of the Deed of Common Terms or any other Transaction Document;
and
(c) any Senior Creditor who was not a Senior Creditor under the
Deed of Common Terms prior to the IPO Effective Date, does not
have any liability for any act, matter or thing arising under
the Deed of Common Terms prior to the IPO Effective Date.
7.3 Rights not affected
Nothing in clause 6 ("IPO Effective Date"):
(a) prejudices or adversely affects any right, power, authority,
discretion or remedy arising under the Transaction Documents
on, before or after the IPO Effective Date; or
(b) discharges, releases or otherwise affects any liability or
obligation arising under the Transaction Documents on, before
or after the IPO Effective Date,
except as expressly contemplated in that clause.
Part 3 - Miscellaneous
-------------------------------------------------------------------------------
8 Cost, Charges and Expenses
8.1 What the Borrower agrees to pay
The Borrower agrees to pay or reimburse the New Trustee, the Retiring
Trustee, each other Senior Creditor and the Retiring Financiers on
demand for:
(a) the reasonable costs, charges and expenses of the New Trustee,
the Retiring Trustee, each other Senior Creditor and the
Retiring Financiers in connection with the negotiation,
preparation, execution, stamping, registration and completion
of any Transaction Document or any transaction contemplated by
any Transaction Document; and
-------------------------------------------------------------------------------
(c)Xxxxxxxxx Xxxxxxx Xxxxxx Amendment and Restatement Deed - 14
Deed of Common Terms
26 February 2004
(b) the costs, charges and expenses of the New Trustee, and each
other Senior Creditor in connection with any consent,
approval, exercise or non-exercise of rights (including,
without limitation, in connection with the contemplated or
actual enforcement or preservation of any rights under any
Transaction Document) waiver, variation, release or discharge
in connection with any Transaction Document; and
(c) taxes and fees (including, without limitation, registration
fees) and fines and penalties in respect of fees (unless the
Borrower has placed the New Trustee in sufficient cleared
funds for the New Trustee or other Senior Creditor to be able
to pay the taxes or fees by the due date), which may be
payable or determined to be payable in connection with any
Transaction Document or a payment or receipt or any other
transaction contemplated by any Transaction Document; and
(d) the reasonable costs, charges and expenses of the New Trustee,
and each other Senior Creditor in connection with any enquiry
by any authority involving the Partnership, the Borrower or
any of its Related Entities,
including in each case, without limitation, legal costs and expenses on
a full indemnity basis or solicitor and own client basis, whichever is
the higher.
For the purposes of this clause 8.1, a reference to a Transaction
Document means a Transaction Document following the Debt Refinance
Date.
8.2 Independent Consultants Costs
The Borrower agrees that the costs, charges and expenses referred to in
clauses 8.1(b) and (d) ("What the Borrower agrees to pay") include,
without limitation, those payable to any independent consultant or
other person appointed to evaluate any matter of concern and the New
Trustee's and any other Senior Creditor's reasonable administration
costs in connection with any event referred to in clauses 8.1 (b) or
(d) ("What the Borrower agrees to pay").
8.3 Borrower's indemnity
The Borrower indemnifies the New Trustee, the Retiring Trustee, each
other Senior Creditor and the Retiring Financiers against any liability
or loss arising from, and any costs, charges and expenses incurred in
connection with:
(a) the payment, omission to make payment or delay in making
payment of an amount referred to in clause 8.1 ("What the
Borrower agrees to pay"); or
(b) the New Trustee, the Retiring Trustee, each other Senior
Creditor and the Retiring Financiers acting in connection with
a Transaction Document in good faith on facsimile, electronic
mail or telephone instructions purporting to originate from
the authorised officers of an Obligor, New Guarantor or TXU
and which it believes to be genuine and correct,
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 15
Deed of Common Terms
26 February 2004
including, without limitation, liability, loss, costs, charges or
expenses on account of funds borrowed, contracted for or used to fund
any amount payable under a Transaction Document and including in each
case, without limitation, legal costs and expenses on a full indemnity
basis or solicitor and own client basis, whichever is the higher.
8.4 Borrower to pay
The Borrower agrees to pay to the New Trustee, the Retiring Trustee,
each other Senior Creditor and the Retiring Financiers an amount equal
to any liability, loss, costs, charges or expenses of the kind referred
to in clause 8.3 ("Borrower's Indemnity) suffered or incurred by any
employee, officer, agent, attorney or contractor of the New Trustee,
the Retiring Trustee, each other Senior Creditor and the Retiring
Financiers unless caused by that person's gross negligence.
8.5 Inconsistency
On and from the Debt Refinance Date and to the extent that anything in
this clause 8 is inconsistent with the terms of the Deed of Common
Terms (particularly clause 11 or clause 12 (as the case may be)) in so
far as it applies to any particular Transaction Document, then the Deed
of Common Terms prevails.
-------------------------------------------------------------------------------
9 Notices
9.1 Form
All notices, certificates, consents, approvals, waivers and other
communications in connection with this deed must be in writing, signed
by an Authorised Officer of the sender and marked for attention as set
out or referred to in the Details or, if the recipient has notified
otherwise, then marked for attention in the way last notified.
9.2 Delivery
They must be:
(a) left at the address set out or referred to in the Details; or
(b) sent by prepaid post (airmail, if appropriate) to the address
set out or referred to in the Details; or
(c) sent by fax to the fax number set out or referred to in the
Details; or
(d) if to, or by, the New Syndicated Facilities Agent, may be
given by means of the ANZIB eAgency website, access to which
is restricted to the parties to the Bank Finance Documents
established by the New Syndicated Facilities Agent or other
electronic means in a manner and subject to rules established
by the New Syndicated Facilities Agent.
However, if the intended recipient has notified a changed postal
address or changed fax number, then the communication must be to that
address or number.
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 16
Deed of Common Terms
26 February 2004
9.3 When effective
They take effect from the time they are received unless a later time is
specified in them.
9.4 Receipt - postal
If sent by post, they are taken to be received three days after posting
(or seven days after posting if sent to or from a place outside
Australia).
9.5 Receipt - fax
If sent by fax, they are taken to be received at the time shown in the
transmission report as the time that the whole fax was sent.
9.6 Receipt - eAgency
If sent by means of the ANZIB eAgency website, they are taken to be
received on the later of:
(a) a notice being posted on the ANZIB eAgency website; and
(b) receipt by the New Syndicated Facilities Agent of a delivery
receipt in respect of an e-mail the New Syndicated Facilities
Agent has sent to the relevant party's Nominated E-Mail
Address notifying that the notice has become available on the
ANZIB eAgency website.
9.7 Receipt - general
Despite clauses 9.4 ("Receipt - postal"), 9.5 ("Receipt - fax") and 9.6
("Receipt - eAgency"), if they are received after 5pm in the place of
receipt or on a non-Business Day, they are taken to be received at 9am
on the next Business Day.
-------------------------------------------------------------------------------
10 Miscellaneous
10.1 Counterparts
This deed may consist of a number of copies of this deed each signed by
one or more parties to this deed. When taken together, the signed
copies are taken as making up the one document.
10.2 Applicable law
This deed is governed by the law of Victoria. Each party to this deed
submits to the non-exclusive jurisdiction of the courts of Victoria.
-------------------------------------------------------------------------------
11 Definitions
11.1 Definitions
The following words have these meanings in this deed unless the
contrary intention appears.
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 17
Deed of Common Terms
26 February 2004
Bank Finance Document has the meaning given to it in the Loan
Note Subscription Agreement.
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.
Credit Support Document has the meaning given to it in a Hedge
Agreement.
Debt Refinance Date means the date notified by the Retiring
Trustee under clause 1.1 ("Debt Refinance Date") to be the
Debt Refinance Date.
Deed of Common Terms means:
(a) until amended under clause 2.4(a) ("Amendments to Deed of
Common Terms"), the Deed of Common Terms previously known
as the Security Trust Deed dated 24 February 1999 executed
by the TXU Australia Holdings (Partnership) Limited
Partnership, the Borrower, TXU (No. 8), TXU (No. 9), TXUA,
TXU Networks (Gas)Pty Ltd (formerly known as Westar Pty
Limited), TXU Pty Ltd (formerly known as Kinetik Energy
Pty Ltd), TXU Electricity Limited (formerly known as
Eastern Energy Limited), TXU Corp.(formerly known as Texas
Utilities Company), Citibank, N.A. and National Australia
Bank Limited as amended by a deed dated
22 February 2000, 31 October 2001 and 8 December 2003;
(b) when amended under clause 2.4(a) ("Amendments to Deed of
Common Terms") until amended under clause 6.1(a) ("Effect
of IPO Effective Date"), the Deed of Common Terms in the
form of Annexure A to this deed; and
(c) when amended under clause 6.1(a), the Deed of Common Terms
in the form of Annexure B to this deed.
Event of Default has the meaning given in the Deed of Common
Terms.
Existing Facilities means the facilities provided under:
(a) the Loan Note Subscription Agreement dated 26 October 2001
between the Partnership (as the Borrower), National
Australia Bank Limited (as the Facility Agent) and the
Financiers specified in the Details to that agreement as
amended from time to time; and
(b) the Working Capital Facility Agreement dated 26 October
2001 between the Partnership (as the Borrower), Citibank,
NA., National Australia Bank Limited and Westpac Banking
Corporation (as Financiers) as amended from time to time.
General Partner means TXU Australia Holdings (AGP) Pty Ltd
(ABN 16 086 014 931).
Guarantee means:
(a) the Original Guarantee;
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 18
Deed of Common Terms
26 February 2004
(b) the New Guarantee; and
(c) in relation to each New Guarantor, the IPO Guarantee.
Guarantor means:
(a) each of Holdco and TXU8, under the Original Guarantee;
(b) each of the Partnership and TXU8 under the New Guarantee;
(c) each New Guarantor, from when the New Guarantor becomes a
Guarantor under the Deed of Common Terms in accordance
with this deed; and
(d) each other Material Operating Subsidiary that has entered
into a Guarantee or becomes a Guarantor by executing a New
Guarantor Accession Deed.
IPO Effective Date means the date notified by the New Trustee
under clause 5.1 ("IPO Effective Date") to be the IPO
Effective Date.
IPO Guarantee means the Guarantee and Indemnity dated on or
before the IPO Effective Date by each New Guarantor in favour
of the New Trustee, substantially in the form of schedule 5 to
this deed.
Limited Partners means each of TXU Australia (LP) No. 1
Limited and TXU Australia (LP) No. 2 Limited.
Loan Note Subscription Agreement means the Loan Note
Subscription Agreement dated on or about the date of this deed
between the Borrower, the Financiers (as described in that
agreement) and the New Syndicated Facilities Agent.
Mandated Lead Arrangers means each of:
(a) Citibank, N.A.;
(b) Westpac Banking Corporation;
(c) Australia and New Zealand Banking Group Limited; and
(d) Commonwealth Bank of Australia.
Material Operating Subsidiary has the meaning given to it in
the Deed of Common Terms as at the relevant time.
New Financier means:
(a) each New Financier within the meaning given to "New
Financier" in the Details; and
(b) each other person who becomes a Senior Creditor after the
date of this deed and is a Financier.
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 19
Deed of Common Terms
26 February 2004
New Guarantee means the Guarantee and Indemnity dated 11
December 2003 made between the Partnership, TXU8 and the
Retiring Trustee, the benefit of which will be assigned to
the New Trustee in accordance with this deed.
New Guarantor means:
(a) the TXUA Parent;
(b) TXU8;
(c) TXUA;
(d) each Restricted Subsidiary that, as at the IPO Effective
Date, is a TXU8 Borrower (except in the case of any
Restricted Subsidiary that the Borrower has demonstrated
to the reasonable satisfaction of the Trustee is Dormant
or Inactive); and
(e) each Material Operating Subsidiary that accedes to the IPO
Guarantee from time to time as required by clause 6.1(cc)
("Guarantee") of the Deed of Common Terms referred to in
paragraph (c) of that definition.
For the purposes of this definition, "Dormant" or "Inactive"
is taken to mean in relation to a Subsidiary of the TXUA
Parent, a Subsidiary which does not own any assets (other than
assets relevant to its status as a body corporate and which
have a nominal value and other than shares in another Dormant
or Inactive Subsidiary) and which does not carry on any
business activities.
Obligors means at any time:
(a) the Borrower; and
(b) each company specified in schedule 1 to this deed; and
(c) any other person which executes a New Obligor Accession
Deed from time to time,
unless at that time the person has been released from its
obligations under this deed and the Deed of Common Terms in
accordance with this deed and the Deed of Common Terms.
For the avoidance of doubt the parties agree that TXU is not
an Obligor.
Original Guarantee means the Guarantee and Indemnity dated
24 February 1999 made between the Partnership, the Borrower,
TXU8 and TXU9 in favour of Retiring Trustee as amended by a
deed and an agreement each dated 22 February 2000, the benefit
of which will be assigned to the New Trustee in accordance
with this deed.
Potential Event of Default has the meaning given to it in the
Deed of Common Terms.
-------------------------------------------------------------------------------
(c)Xxxxxxxxx Xxxxxxx Xxxxxx Amendment and Restatement Deed - 20
Deed of Common Terms
26 February 2004
Retiring Financier means each person whose details are set out
in item 2 of schedule 2 ("Senior Creditors - Retiring
Financiers").
Syndicated Facilities Agent means Australia and New Zealand
Banking Group Limited or any successor agent appointed under
the Loan Note Subscription Agreement.
Trust Fund has the meaning given to it in the Deed of Common
Terms.
TXU Australia Group means the TXUA Parent and its
Subsidiaries.
TXUA Parent means TXU Australia Group Pty Ltd
(ABN 96 104 896 497).
TXU8 means TXU (No. 8) Pty Ltd (ABN 15 085 235 776).
TXU9 means TXU (No. 9) Pty Ltd (ABN 36 085 235 801).
TXUA means TXU Australia Pty Ltd (ABN 96 000 000 000).
Working Capital Facility Agreement means the agreement of that name
under which the Financiers named in that agreement have provided a
working capital facility to the Borrower, dated on or about the date of
this deed.
11.2 Deed of Common Terms
Subject to clause 11.4 ("Definition of Senior Creditor"), terms not
otherwise defined in this deed have the meaning given to them in the
Deed of Common Terms.
11.3 Senior Finance Document
This deed is a Senior Finance Document.
11.4 Definition of Senior Creditor
(a) Except in relation to clauses 2.1(b), 2.3, 2.6 and the second
reference to "Senior Creditor" in clause 3.4(c), all
references to a "Senior Creditor" in clause 1 ("Conditions
Precedent - Deed of Common Terms ("Refinancing")"), clause 2
("Debt Refinance Date"), clause 3 ("Acknowledgments"), clause
8 ("Costs, Charges and Expenses") and Schedule 3 ("Conditions
Precedent - Refinancing") of this deed are taken to be
references to the Senior Creditors (as defined in the Deed of
Common Terms) as if:
(i) the Debt Refinance Date had already occurred; and
(ii) all Amounts Owing under the Existing Facilities have
been repaid; and
(iii) the Loan Note Subscription Facility had been executed
and the Amount Owing (as defined in the Deed of Common
Terms ("Refinancing")) to each Continuing Financier and
New Financier is equal to each Financier's Commitment
under the Loan Note Subscription Agreement.
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 21
Deed of Common Terms
26 February 2004
(b) The references to "Senior Creditor" in clauses 2.1(b), 2.3,
2.6 and the second reference to "Senior Creditor" in clause
3.4(c) shall be to that term as defined in Deed of Common
Terms at the relevant time for the purposes of the clause.
(c) References to a Senior Creditor in clause 5 ("Conditions
Precedent-Deed of Common Terms (IPO")), clause 6 ("IPO
Effective Date"), clause 7 ("Acknowledgments") and Schedule 4
("Conditions Precedent to IPO Effective Date") are taken to be
references to the Senior Creditors under the Deed of Common
Terms at that time.
EXECUTED as a deed
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 22
Deed of Common Terms
26 February 2004
Amendment and Restatement Deed - Deed of
Common Terms
Schedule 1 - Obligors
-----------------------------------------------------------------
NAME OF OBLIGOR ABN/ACN/ARBN
TXU Australia Group Pty Ltd 96 104 896 497
TXU Australia Holdings Pty Ltd 97 086 006 859
TXU Australia Pty Ltd 96 000 000 000
TXU (No. 8) Pty Ltd 15 085 235 776
TXU (No. 9) Pty Ltd 36 085 235 801
TXU Networks (Gas) Pty Ltd 43 086 015 036
TXU Pty Ltd 99 000 000 000
TXU Electricity Limited 91 064 651 118
TXU (No. 12) Pty Ltd 50 000 000 000
TXU (No. 7) Pty Ltd 98 085 235 749
TXU Gas Storage Pty Ltd 71 079 089 311
TXU Networks Pty Ltd 27 075 826 881
TXU (No. 14) Pty Ltd 47 076 229 519
TXU Customer Services Pty Ltd 28 080 886 513
TXU (Tallawarra) Pty Ltd 69 081 074 142
TXU (No. 13) Pty Ltd 38 075 826 925
TXU Australia Services Pty Ltd 73 081 074 160
TXU (South Australia) Pty Ltd 84 000 000 000
TXU Torrens Island Pty Ltd 67 081 074 197
Joule Resources Pty Ltd 65 081 074 188
------------------------------------------------------------------
------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 23
Deed of Common Terms
26 February 2004
------------------------------------------------------------------------
TXU Home Services Pty Ltd 43 095 759 881
------------------------------------------------------------------------
Data and Measurement Solutions Pty Ltd 097 962 395
------------------------------------------------------------------------
TXU MEB Holdings Pty Ltd 097 341 636
------------------------------------------------------------------------
TXU MEB Pty Ltd 097 241 917
------------------------------------------------------------------------
TXU VN Pty Ltd 097 241 891
------------------------------------------------------------------------
Victoria Networks Pty Ltd 096 573 572
------------------------------------------------------------------------
TXU (No 6) Pty Ltd 42 081 688 913
------------------------------------------------------------------------
TXU Australia (Queensland) Pty Ltd 49 081 754 538
------------------------------------------------------------------------
TXU Share Plans Pty Ltd 21 098 955 616
------------------------------------------------------------------------
The Partnership, the general partner of which is TXU 40 315 470 807
Australia Holdings (AGP) Pty Ltd and the limited
partners of which are TXU Australia (LP) No. 1
Limited and TXU Australia (LP) No. 2 Limited.
------------------------------------------------------------------------
TXU (Tallawarra Pipelines) Pty Ltd 19 107 137 735
------------------------------------------------------------------------
------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 24
Deed of Common Terms
26 February 2004
Amendment and Restatement Deed - Deed of
Common Terms
Schedule 2 - Senior Creditors
Item 1 - Continuing Financiers
---------------------------------------------------------------------------------------------------------
NAME OF CONTINUING FINANCIER ACN/ARBN/ABN NOTICE DETAILS
---------------------------------------------------------------------------------------------------------
Australia and New Zealand Banking ABN 11 005 357 522 Level 17
Group Limited 000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00) 0000 0000
Attention: Xx Xxxx Xxxxxxxx
---------------------------------------------------------------------------------------------------------
BNP PARIBAS ABN 23 000 000 117 00 Xxxxxxxxxxx Xxxxxx
Xxxxxx NSW 2000
Fax: (00) 0000 0000
Attention: Mr Xxxx Xxxxxxx &
Xx Xxxxx Xxxxx
---------------------------------------------------------------------------------------------------------
Citibank, N.A. ABN 34 072 814 058 Level 15
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00) 0000 0000
Attention: Xx Xxxxx Xxxxx
---------------------------------------------------------------------------------------------------------
Commonwealth Bank of Australia ABN 48 123 123 124 Level 14
000 Xxxxxx Xxxxxx
Xxxxxxxxx Xxx 3000
Fax: (00 0) 0000 0000
Attention: Xx Xxxx Xxxxxx
---------------------------------------------------------------------------------------------------------
ING Bank N.V. (Sydney Branch) ABN 32 080 178 196 Level 9
0 Xxxxxxxxx Xxxxx
Xxxxxx XXX 0000
Fax: (00 0) 0000 0000
Attention: Xx Xxxxxx Xxxxxxxx
Legal & Compliance
Manager
---------------------------------------------------------------------------------------------------------
Mizuho Corporate Bank, Ltd ABN 83 099 031 106 Level 33
00 Xxxxxxxx Xxxxxx
Xxxxxx XXX 0000
Fax: (00 0) 0000 0000
Attention: Xx Xxxxxx Xxxxxxxx
Manager, Corporate
Finance
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 25
Deed of Common Terms
26 February 2004
National Australia Bank Limited ABN 12 004 044 937 Level 33
000 Xxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00 0) 0000 0000
Attention: Xx Xxxxxxx Xxxxx
Director, Energy &
Utilities
---------------------------------------------------------------------------------------------------------
The Bank of Tokyo - Mitsubishi, ABN 75 103 418 882 Level 18
Ltd. Melbourne Branch 000 Xxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00 0) 0000 0000
Attention: Xx Xxxxxx XxxXxxxx
Chief Manager,
Corporate & Project
Finance
---------------------------------------------------------------------------------------------------------
United Overseas Bank Limited ABN 56 060 785 284 Level 9
32 Xxxxxx Place
Sydney NSW 2000
Fax: (00) 0000 0000
Attention:
Xx Xxxxxx X Xxxxxxx
Vice President and
Head of Project
Finance & Syndications
---------------------------------------------------------------------------------------------------------
Westpac Banking Corporation ABN 33 007 457 141 Level 9
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 3000
Fax: (00 0) 0000 0000
Attention: Mr Xxxxxxx Xxxxxxxx
------------------------------------- ------------------------- -----------------------------------------
----------------------------------------------------------------------------------------------------------
(c)Xxxxxxxxx Xxxxxxx Xxxxxx Amendment and Restatement Deed - 26
Deed of Common Terms
26 February 2004
Item 2 - Retiring Financiers
-----------------------------------------------------------------------
NAME OF RETIRING FINANCIER ACN/ABN/ARBN
-----------------------------------------------------------------------
Bank of China
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Barclays Bank PLC, Australian Branch 86 062 449 585
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Bayerische Hypo- und Vereinsbank AG
-----------------------------------------------------------------------
-----------------------------------------------------------------------
BOS International (Australia) Limited 066 601 250
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Credit Agricole Indosuez Australia Limited 002 540 409
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Deutsche Bank AG, Sydney Branch 13 064 164 162
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Royal Bank of Canada 86 076 940 880
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Sumitomo Mitsui Finance Australia Limited 16 000 000 000
-----------------------------------------------------------------------
-----------------------------------------------------------------------
The Toronto-Dominion Bank 74 082 818 175
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Westdeutsche Landesbank Girozentrale, Sydney Branch 70 076 170 039
-----------------------------------------------------------------------
------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 27
Deed of Common Terms
26 February 2004
Item 3 - Continuing Hedge Counterparties
-------------------------------------------------------------------------------------------------------
NAME OF CONTINUING HEDGE ACN/ARBN/ABN NOTICE DETAILS
COUNTERPARTY
-------------------------------------------------------------------------------------------------------
Australia and New Zealand Banking ABN 11 005 357 522 Level 12
Group Limited 000 Xxxxxxx Xxxxxx
Xxxxxxxxx Vic 3000
Fax: (00) 0000 0000
Attention: Manager, Derivative
Operations
-------------------------------------------------------------------------------------------------------
Citibank, N.A. ABN 34 072 814 058 Level 15
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00) 0000 0000
Attention: Xx Xxxxx Xxxxx
-------------------------------------------------------------------------------------------------------
Commonwealth Bank of Australia ABN 48 123 123 124 Level 1
000 Xxxx Xxxxxx
Xxxxxx XXX 2000
Fax: (00) 0000 0000
Attention: Executive Manager,
Global Markets
-------------------------------------------------------------------------------------------------------
JPMorgan Chase Bank ABN 43 074 112 011 000 Xxxx Xxxxxx
Xxx Xxxx XX 00000-0000
Fax: x0 (000) 000 0000
Attention: Legal Department
Capital Markets
Group
With a copy to: Level 00, Xxxxxxxxx
Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxx XXX 0000
Fax: (00) 0000 0000
Attention: Legal Department,
Capital Markets
Group
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
(c)Xxxxxxxxx Xxxxxxx Xxxxxx Amendment and Restatement Deed - 28
Deed of Common Terms
26 February 2004
-------------------------------------------------------------------------------------------------------
NAME OF CONTINUING HEDGE ACN/ARBN/ABN NOTICE DETAILS
COUNTERPARTY
-------------------------------------------------------------------------------------------------------
National Australia Bank Limited ABN 12 004 044 937 Level 11
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (000) 0000 0000
Attention: Manager,
Documentation
-------------------------------------------------------------------------------------------------------
Societe Generale Australia Branch ABN 71 092 516 286 Level 21
000 Xxxxxx Xxxxxx
Xxxxxx XXX 2000
Fax: (00 0) 0000 0000
Attention: Legal Department
-------------------------------------------------------------------------------------------------------
The Toronto-Dominion Bank ABN 74 082 818 175 Level 24
9 Castlereagh Street
Sydney NSW 2000
Fax: (00 0) 0000 0000
Attention: Managing Director,
Credit
-------------------------------------------------------------------------------------------------------
UBS AG, Australia Branch ABN 47 088 129 000 0 Xxxxxxx Xxxxxxxxx
00-00 Xxxxxx Xxxxx Xxxx
Xxxxxxxxx 000000
Fax: x00 0000 0000
Attention: Legal & Compliance
Department
-------------------------------------------------------------------------------------------------------
Westpac Banking Corporation ABN 33 007 457 141 Level 9
000 Xxxxxxx Xxxxxx
Melbourne Vic 3000
Fax: (00) 0000 0000
Attention: Mr Xxxxxxx Xxxxxxxx
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
(c)Xxxxxxxxx Xxxxxxx Xxxxxx Amendment and Restatement Deed - 29
Deed of Common Terms
26 February 2004
Item 4 - New Financiers
---------------------------------------------------------------------------------------------------------
NEW FINANCIER ACN/ARBN/ABN NOTICE DETAILS
---------------------------------------------------------------------------------------------------------
Credit Suisse First Boston ABN 17 061 700 712 Level 27
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00) 0000 0000
Attention: Xx Xxxx Xxxxxx
Assistant Vice
President
---------------------------------------------------------------------------------------------------------
JPMorgan Chase Bank ABN 43 074 112 011 Level 00
Xxxxxxxxx Xxxxx
000 Xxxxxx Xxxxxx
Fax: (00 0) 0000 0000
Attention: Xx Xxxx Xxxx
Associate
---------------------------------------------------------------------------------------------------------
UBS AG, Australia Branch ABN 47 000 000 000 Level 25
Governor Xxxxxxx Xxxxx
0 Xxxxxx Xxxxx
Xxxxxx XXX 0000
Fax: (00) 0000 0000
Attention: Xx Xxxxx Xxxxxxx
Associate Director
---------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
(c)Xxxxxxxxx Xxxxxxx Xxxxxx Amendment and Restatement Deed - 30
Deed of Common Terms
26 February 2004
Amendment and Restatement Deed - Deed of
Common Terms
Schedule 3 - Conditions Precedent - Refinancing
(clause 1.2)
Conditions to Debt Refinance Date
o Definitions in the Deed of Common Terms set out in Annexure A apply to
this schedule as if the Debt Refinance Date had happened (except where
specified otherwise).
o Each item must be in form and substance satisfactory to all Senior
Creditors (if that item is marked with an "**") or the New Syndicated
Facilities Agent (if that item is not so marked).
o Certification is to be by a director or secretary of the relevant entity
(which in the case of the Partnership, is a director or a secretary of
the General Partner) that the item is true and complete as to the date no
earlier than the date of this deed.
-------------------------------------------------------------------------------
Item Form Required for
1 Constitution (or equivalent). Certified copy Each Obligor (except TXU
Australia (LP) No. 1 Limited
and TXU Australia (LP) No. 2
Limited)
2 Partnership Deed. Certified copy Partnership
3 Evidence of registration as limited Certified copy Partnership
partnership.
4 Certificate of registration Certified copy Each Obligor (except TXU
Australia (LP) No. 1 Limited
and TXU Australia (LP) No. 2
Limited)
5 Extract of minutes of a meeting of the Certified copy Each Obligor
entity's board of directors which
evidences the resolutions:
(a) authorising the signing and delivery
of the Transaction Documents
to which the entity is a party and the
observance of obligations
under those documents; and
(b) appointing Authorised Officers of
the entity; and
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 31
Deed of Common Terms
26 February 2004
(c) which acknowledge that the Transaction
Documents (to which the
entity is a party) will benefit that entity.
6 Each document which evidences any other Certified copy Each Obligor
necessary corporate or other action of
the entity in connection with the
Transaction Documents to which it is a
party.
7 Each Authorisation of the entity Certified copy Each Obligor
necessary to enter into the Transaction
Documents to which it is a party and to
comply with obligations under those
documents and enforce those documents.
8 Each power of attorney under which a Certified copy Each Obligor
person signs a Transaction Document for
the entity showing evidence of stamping
and evidence of registration if
required by the Trustee.
9 Specimen signature of: Certified copy Each Obligor
(a) each Authorised Officer of the
entity; and
(b) each other person who is authorised
to sign and signs a Transaction
Document for the entity.
10 ** This deed: Original
(a) fully signed; and
(b) if required by the Trustee,
evidence of stamping.
11 ** Each other Transaction Document Original
(other than the Partnership Deed and
Intercompany Loan Agreements):
(a) fully signed;
(b) evidence of stamping;
(c) evidence of registration.
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(c)Xxxxxxxxx Xxxxxxx Xxxxxx Amendment and Restatement Deed - 32
Deed of Common Terms
26 February 2004
12 **Legal opinions dealing with validity Original
and enforceability of the Transaction
Documents from:
(a) Xxxxx & XxXxxxxx;
(b) Xxxxx & XxXxxxxx (London office)
in relation to the Limited
Partners;
(c) Xxxxxx & Xxxxxxxx LLP; and
(d) Xxxxxxxxx Xxxxxxx Xxxxxx.
13 Structure chart for the TXUA Parent and Certified copy Borrower
its Subsidiaries.
14 ** All insurance policies required to Certificate of Borrower
be maintained under the Transaction currency of
Documents are current. policies
15 **Confirmation that: Certificate and Borrower
certified copies
(a) the Holdco-TXUA Loan Agreement;
(b) the TXUA-TXU8 Loan Agreement; and
(c) the TXU8 Loan Agreement,
have not been varied or amended since
22 February 2000 (other than under
the Amending Deed dated 8 December 2003
between the Partnership, the
Borrower, TXUA, the TXU8, TXU8 Borrowers
and the Retiring Trustee) and
certified copies of those agreements.
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(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 33
Deed of Common Terms
26 February 2004
16 ** Confirmation that: Certificate Obligors
(a) as from the Debt Refinance Date,
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
Consolidated Senior Debt less
the Amount Owing to any
Transactional Bank in respect of
or in connection with any
Transactional Banking Facility;
and
(b) all of the Subsidiaries of the TXUA
Parent (other than the
Unrestricted Subsidiaries) will, upon
the Debt Refinance Date, be
an Obligor for the purposes of the
Deed of Common Terms.
17 Each TXU8 Borrower is a party to the Certificate Confirmation from the Borrower
TXU8 Loan Agreement.
18 Evidence that the commitments of the Borrower and Retiring
lenders under the existing facilities Syndicated Facilities Agent
have been cancelled and all moneys
owing under those facilities will be
fully repaid contemporaneously with
the first issue of Loan Notes (as
defined in the Loan Note Subscription
Agreement).
19 Confirmation that no person has Certificate Borrower
contravened or will contravene Part
2J.3 or Chapter 2E of the Corporations
Act 2001 (C'th) by entering into the
transaction contemplated by the
Transaction Documents.
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(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 34
Deed of Common Terms
26 February 2004
Amendment and Restatement Deed - Deed of
Common Terms
Schedule 4 - Conditions Precedent to IPO
Effective Date (clause 5.2(a))
Conditions to IPO Effective Date
o Definitions in the Deed of Common Terms set out in Annexure B apply to
this schedule as if the IPO Effective Date had happened (except where
specified otherwise).
o Each item must be in form and substance satisfactory to the New Trustee
(if it is not marked), or all the Senior Creditors (if it is marked by
**) (as the case may be).
o The Trustee may require other documents and information.
o Certification is to be by a director or secretary of the relevant
entity (which in the case of the Partnership, is a director or a
secretary of the General Partner) that the item is true and complete as
to the date no earlier than the date of this deed.
o To the extent an item has been satisfied as a condition to Debt
Refinance Date occurring (but having regard to the different
definitions that apply in this schedule) it need not be satisfied again
unless it will no longer be true or complete at the IPO Effective Date
or the item specifies otherwise.
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Item Form Required for
1 Constitution (or equivalent) or a Certified copy Each Obligor (other than TXU
certificate confirming no change to any Australia (LP) No.1 Limited
of them since the date the copy of the and TXU Australia (LP) No. 2
constitution or certificate was last Limited)
provided to the Trustee.
2 Partnership Deed (or certificate Certified copy Partnership
confirming no change since the date the
copy of the Certificate was last
provided to the Trustee).
3 Evidence of registration as a limited Certified copy Partnership
partnership
4 Certificate of registration Certified copy Each Obligor (other than TXU
Australia (LP) No.1 Limited
and TXU Australia (LP) No. 2
Limited)
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(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 35
Deed of Common Terms
26 February 2004
5 A copy of each Authorisation necessary Certified copy Each Obligor
for the entity to enter into, observe
obligations under and enforce the
Transaction Documents.
6 Extract of the minutes of a meeting of Certified copy Each Obligor
the entity's board of directors which
evidences the resolutions:
(i) authorising the signing and
delivery of and the observance
of obligations under the
Transaction Documents to which
it is a party;
(ii) appointing Authorised Officers; and
(iii) which acknowledges that the
Transaction Documents to which
it is a party will benefit it.
7 Each document which evidences any other Certified copy Each Obligor
necessary corporate or other action of
the entity in connection with the
Transaction Documents to which it is a
party.
8 Each power of attorney under which a Certified copy Each Obligor
person signs and delivers a Transaction
Document for the entity, and, if
required by the Trustee, evidence of
its stamping and registration.
9 Specimen signature of: Certified copy Each Obligor
(a) each Authorised Officer of the
entity; and
(b) each other person who is authorised
to sign and signs a Transaction
Document for the entity.
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(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 36
Deed of Common Terms
26 February 2004
10 ** Each Transaction Document entered Original Obligors
into after the Debt Refinance Date and
to which the Trustee is a party
(including the IPO Guarantee by the New
Guarantors):
(a) fully signed;
(b) evidence of stamping;
(c) evidence of registration.
11 Each other Transaction Document has Original Obligors
been:
(a) fully signed;
(b) stamped (if required);
(c) registered (if required).
12 ** All insurance policies required to Certificate of Obligors
be maintained under the Transaction currency of
Documents are current. policies
13 All fees and expenses payable by the Borrower
Borrower on or before the IPO Effective
Date have been paid.
14 A copy of a chart showing the TXUA Certified Copy Borrower
Parent and each of its Subsidiaries.
15 Confirmation that no person has Certificate Borrower
contravened or will contravene Part
2J.3 or Chapter 2E of the Corporations
Act 2001 (C'th) by entering into the
transaction contemplated by the
Transaction Documents.
16 **Each TXU8 Borrower (other than a New
"Dormant" or "Inactive" company) (as Guarantors
those terms are defined in this deed)
that is a party to the TXU8 Loan
Agreement as at the IPO Effective Date,
TXU8 and the TXUA Parent have executed
the IPO Guarantee and is an Obligor
under the Deed of Common Terms.
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(c)Xxxxxxxxx Xxxxxxx Xxxxxx Amendment and Restatement Deed - 37
Deed of Common Terms
26 February 2004
17 ** There is, and immediately after the Certificate Obligors
IPO Effective Date there will be, no
Event of Default or Potential Event of
Default subsisting and the
representations and warranties by each
Obligor in the Transaction Documents
will be true and correct immediately
after the IPO Effective Date if
repeated at that time by reference to
the then current circumstances.
18 ** Legal opinions from each of: Original
(i) Xxxxx & XxXxxxxx; and
(ii) Mallesons Xxxxxxx Xxxxxx,
dealing with the validity and
enforceability of the IPO Guarantee
and the Deed of Common Terms (IPO).
19 ** Evidence that as at the IPO Certificate
Effective Date, the TXUA Parent or the from the Borrower
Borrower will have made an initial
public offering of shares and be listed
on the Australian Stock Exchange.
20 ** Evidence as at the IPO Effective Certificate
Date, the TXUA Parent and the Borrower from the Borrower
are a Subsidiary of TXU.
21 ** Evidence that any disclosure Certificate
document in connection with the public from the Borrower
offer of shares by an entity which is a
subsidiary of the TXUA Parent has been
prepared in accordance with the
Corporations Act and the ASX listing
rules and that the initial public
offering complied with all material
laws including the Corporations Act and
ASX Listing Rules.
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(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 38
Deed of Common Terms
26 February 2004
22 ** A copy of each Authorisation or
other regulatory permit, consent or
approval necessary under the Core
Business as a result of the proposed
initial public offering of shares.
23 ** A solvency certificate, Certificate Each Obligor
substantially in the form attached as
schedule 6.
24 ** A certificate that each New Certificate Each New
Guaranto rconsents to the Guarantor
amendments to the Deed of Common
Terms as set out in Annexure B to
the Amending Deed and confirms that
on and from the IPO Effective Date:
(a) the IPO Guarantee continues in
full force and effect; and
(b) the amendments to the Deed of
Common Terms, Loan Note
Subscription Agreement and
Working Capital Facility
Agreement on the IPO Effective
Date do not affect the
validity or enforceability of
the IPO Guarantee.
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(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 39
Deed of Common Terms
26 February 2004
Amendment and Restatement Deed - Deed of
Common Terms
Schedule 5 - Form of IPO Guarantee
Date:
Parties:
EACH OF THE COMPANIES SPECIFIED IN SCHEDULE 1
each a ("Guarantor" and together the
"Guarantors") in favour of ANZ FIDUCIARY
SERVICES PTY LIMITED (ABN 91 100 709 493)
having an office at Level 12, 000 Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx, 0000 ("Trustee").
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1 Interpretation
1.1
The following words have these meanings in this guarantee and indemnity
unless the contrary intention appears.
Collateral Security means a present or future Security Interest,
guarantee or indemnity given by a Guarantor, the Debtor or another
person to secure or otherwise ensure the payment of the Guaranteed
Money.
Debtor means each of:
(a) TXU Australia Holdings Pty Ltd (ABN 97 086 006 859) having an
office at Level 33, 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx;
(b) TXU Australia Holdings (Partnership) Limited Partnership (ABN
40 315 470 807) a limited partnership formed and registered
under the Partnership Act 1958 of Victoria, the general
partner of which is TXU Australia Holdings (AGP) Pty Ltd (ABN
16 086 014 931) having an office at Level 33, 000 Xxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx; and the limited partners of which
are TXU Australia (LP) No.1 Limited (ARBN 086 406 733) and TXU
Australia (LP) No.2 Limited (ARBN 086 406 724), each having an
office at Level 00, 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx;
and
(c) TXU Electricity Limited (ABN 91 064 651 118) having an office
at Level 33, 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx.
A reference in this Guarantee and Indemnity to the Debtor includes a
reference to each Debtor jointly and severally.
Deed of Common Terms means the deed previously known as the security
trust deed dated 24 February 1999 between each Debtor, TXU (No. 9) Pty
Ltd, TXU Australia Pty Ltd, TXU Pty Ltd (then known as Kinetik Energy
Pty Ltd), TXU Networks (Gas) Pty Ltd (then known as Westar Pty Ltd),
TXU Electricity Limited (then known as Eastern Energy Limited), TXU
Corp (then known as Texas Utilities Company), Citibank N.A., National
Australia Bank Limited (as the Facility Agent and the Trustee) and
others as amended by a deed dated 22 February 2000, and 26 October
2001, 8 December 2003 and 26 February 2004.
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(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 40
Deed of Common Terms
26 February 2004
Guarantor means the persons named in this guarantee and indemnity as
the Guarantor and a reference to Guarantor is a reference to them
jointly and each of them severally.
Guaranteed Money means all amounts which:
at any time;
for any reason or circumstance in connection with the Senior Finance
Documents to which the Debtor is a party or any transaction
contemplated by them;
whether at law, in equity, under statute or otherwise;
and whether or not of a type within the contemplation of the parties at
the date of this guarantee and indemnity:
(a) are payable, are owing but not currently payable, are
contingently owing, or remain unpaid, by the Debtor to the
Trustee on its own account or for the account of a Senior
Creditor or to a Senior Creditor; or
(b) have been advanced or paid by the Trustee on its own account
or for the account of a Senior Creditor or by a Senior
Creditor:
(i) at the express or implied request of the Debtor; or
(ii) on behalf of the Debtor; or
(c) have been advanced or paid by the Trustee on its own account
or for the account of a Senior Creditor or by a Senior
Creditor or which the Trustee on its own account or for the
account of a Senior Creditor or a Senior Creditor is liable to
pay by reason of any act or omission of the Debtor; or
(d) are reasonably foreseeable as likely, after that time, to fall
within any of paragraphs (a), (b) or (c) above.
A reference to Guaranteed Money includes any part of it.
This definition applies:
(i) irrespective of the capacity in which the Debtor, Trustee or
Senior Creditor became entitled to, or is liable in respect
of, the amount concerned;
(ii) whether the Debtor, Trustee or Senior Creditor is liable as
principal debtor or surety or otherwise;
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(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 41
Deed of Common Terms
26 February 2004
(iii) whether the Debtor is liable alone, or jointly, or jointly and
severally with another person;
(iv) whether the Trustee or Senior Creditor is the original
obligee, an assignee or transferee of the Guaranteed Money and
whether or not:
(A) the assignment took place before or after the delivery of
this guarantee and indemnity; or
(B) the Debtor consented to or was aware of the assignment; or
(C) the assigned obligation was secured;
(v) whether the Trustee or Senior Creditor is the original Trustee
or the original Senior Creditor or an assignee of the original
Trustee or an original Senior Creditor in accordance with the
Senior Finance Documents and whether or not the Guarantor or
Debtor consented to or was aware of the assignment,
(but nothing in this definition shall entitle the Trustee or a
Senior Creditor to assign its rights and obligations under the
Senior Finance Documents except in accordance with the Senior
Finance Documents).
Security Interest has the meaning given to it in the Deed of Common
Terms.
Senior Creditor has the meaning given to it in the Deed of Common
Terms.
Senior Finance Document has the meaning given to that term in the Deed
of Common Terms.
1.2 Intention
In this guarantee and indemnity, unless the contrary intention appears:
(a) a reference to this guarantee and indemnity or another
instrument includes any variation or replacement of any of
them;
(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, a body corporate, 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 in favour of two or
more persons is for the benefit of them jointly and severally;
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(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 42
Deed of Common Terms
26 February 2004
(g) an agreement, representation or warranty on the part of two or
more persons binds them jointly and severally;
(h a reference to an accounting term is to be interpreted in
accordance with approved accounting standards under the
Corporations Act 2001 (Cth) and, if not inconsistent with
those accounting standards, generally accepted principles and
practices in Australia consistently applied by a body
corporate or as between bodies corporate and over time; and
(i) a reference to any thing (including, without limitation, the
Guaranteed Money and any other 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.
1.3 Guarantor Consent
The Guarantors acknowledge that, under the Senior Finance Documents, a
Senior Creditor may arrange for another financial institution to assume
any of its obligations under the Senior Finance Documents in accordance
with the Senior Finance Documents. Subject to the Senior Finance
Documents, the Senior Creditor is not obliged to obtain the consent of
the Guarantor to any such assumption of obligations. The person who
assumes the obligations in accordance with the Senior Finance Documents
will be taken for all purposes under this guarantee and indemnity to be
a Senior Creditor.
1.4 Headings
Headings are inserted for convenience and do not affect the
interpretation of this guarantee and indemnity.
1.5 Defined terms
A term which has a defined meaning in the Deed of Common Terms has the
same meaning when used in this guarantee and indemnity unless it is
expressly defined in this guarantee and indemnity when the meaning
given to the term in this guarantee and indemnity prevails.
1.6 Trustee
The Trustee enters into this guarantee and indemnity in its capacity as
trustee for each of the Senior Creditors under the Deed of Common Terms
and in no other capacity.
1.7 Senior Finance Document
The Trustee and the Guarantors agree that this guarantee and indemnity
is a Senior Finance Document for the purposes of the Deed of Common
Terms.
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(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 43
Deed of Common Terms
26 February 2004
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2 Consideration
2.1 Consideration Received
The Guarantors acknowledge giving this guarantee and indemnity and
incurring obligations and giving rights under this guarantee and
indemnity for valuable consideration received from the Trustee and the
Senior Creditors.
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3 Guarantee
3.1 Extent of Guarantee
The Guarantor unconditionally and irrevocably guarantees payment to the
Trustee of the Guaranteed Money. If the Debtor does not pay the
Guaranteed Money on time and in accordance with the Senior Finance
Documents, then the Guarantor agrees to pay the Guaranteed Money to the
Trustee on demand from the Trustee (whether or not demand has been made
by the Trustee on the Debtor). A demand may be made at any time and
from time to time.
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4 Indemnity
4.1 Nature of Indemnity
The Guarantor unconditionally and irrevocably indemnifies the Trustee
against loss the Trustee suffers and undertakes to pay to the Trustee
for the account of the Senior Creditors an amount equal to the loss
that the Senior Creditors or any of them suffer because:
(a) the liability to pay the Guaranteed Money is unenforceable for
any reason; or
(b) an Insolvency Event occurs in respect of the Debtor
(including, without limitation, loss suffered by the Trustee
or any Senior Creditor because interest is payable by the
Trustee or any Senior Creditor to a liquidator or trustee in
bankruptcy of the Debtor as a result of a claim referred to in
clause 11 being made); or
(c) the Guaranteed Money is not or has never been recoverable from
the Guarantor under clause 3.1, or from the Debtor because of
any other circumstance whatsoever including, without
limitation, any transaction relating to the Guaranteed Money
being void, voidable or unenforceable and whether or not the
Trustee or any Senior Creditor knew or should have known
anything about that transaction.
4.2 Guarantor as principal debtor
The Guarantor as principal debtor agrees to pay to the Trustee on
demand a sum equal to the amount of the loss described in clause 4.1.
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(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 44
Deed of Common Terms
26 February 2004
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5 Interest
5.1 Obligation to pay interest
The Guarantor agrees to pay interest on:
(a) any amount payable by the Guarantor under this guarantee and
indemnity (other than under clause 3 or clause 4), from when
it becomes due for payment during the period that it remains
unpaid; and
(b) that part of the Guaranteed Money on which interest is not
payable by the Debtor from when it becomes due for payment by
the Guarantor under this guarantee and indemnity, during the
period that it remains unpaid under this guarantee and
indemnity;
on demand or at times determined by the Trustee, calculated on daily
balances. The rate to be applied to each daily balance is the interest
rate that is payable, or that would have had to be paid if interest was
payable, by the Debtor on such amount during that period under the
relevant Senior Finance Document. Interest which is not paid when due
for payment may be capitalised by the Trustee at intervals which the
Trustee determines from time to time or, if no determination is made,
then on the first day of each month. Interest is payable on capitalised
interest at the rate and in the manner referred to in this clause. The
Guarantor's obligation to pay the outstanding amount on the date it
becomes due for payment is not affected by this clause.
5.2 Interest following judgment
If a liability under this guarantee and indemnity becomes merged in a
judgment or order, then the Guarantor agrees to pay interest to the
Trustee on the amount of that liability as an independent obligation.
This interest accrues from the date the liability becomes due for
payment both before and after the judgment or order until it is paid,
at a rate that is the higher of the rate payable under the judgment or
order and the rate referred to in clause 5.1.
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6 Extent of guarantee and indemnity
6.1 Nature of Guarantee
This guarantee and indemnity is a continuing obligation and extends to
all of the Guaranteed Money and other money payable under this
guarantee and indemnity. The Guarantor waives any right it has of first
requiring the Trustee or any Senior Creditor to commence proceedings or
enforce any other right against the Debtor or any other person before
claiming from the Guarantor under this guarantee and indemnity.
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7 Preservation of Trustee's and Senior Creditors' rights
7.1 Nature of Preservation
The liabilities under this guarantee and indemnity of the Guarantor as
a guarantor, principal debtor or indemnifier and the rights of the
Trustee and the Senior Creditors under this guarantee and indemnity are
not affected by anything which might otherwise affect them at law or in
equity including, without limitation, one or more of the following
(whether occurring with or without the consent of a person):
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(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 45
Deed of Common Terms
26 February 2004
(a) the Trustee, the Senior Creditors or another person granting
time or other indulgence (with or without the imposition of an
additional burden) to, compounding or compromising with or
wholly or partially releasing the Debtor, any other Guarantor
or another person in any way;
(b) laches, acquiescence, delay, acts, omissions or mistakes on
the part of the Trustee, the Senior Creditors or another
person or any two or more of them;
(c) any variation or novation of a right of the Trustee, the
Senior Creditors or another person or material alteration of a
document, in respect of the Debtor, the Guarantor or another
person including, without limitation, an increase in the limit
of or other variation in connection with advances or
accommodation or any increase in the amount of the Guaranteed
Money;
(d) the transaction of business, expressly or impliedly, with, for
or at the request of the Debtor, the Guarantor or another
person;
(e) changes which from time to time may take place in the
membership, name or business of a firm, partnership, committee
or association whether by death, retirement, admission or
otherwise whether or not the Guarantor or another person was a
member;
(f) the loss or impairment of a Collateral Security or a
negotiable instrument;
(g) a Security Interest being void, voidable or unenforceable;
(h) a person dealing in any way with a Security Interest,
guarantee, judgment or negotiable instrument (including,
without limitation, taking, abandoning or releasing (wholly or
partially), realising, exchanging, varying, abstaining from
perfecting or taking advantage of it);
(i) the death of any person or an Insolvency Event occurring in
respect of any person;
(j) a change in the legal capacity, rights or obligations of a
person;
(k) the fact that a person is a trustee, nominee, joint owner,
joint venturer or a member of a partnership, firm or
association;
(l) a judgment against the Debtor or another person;
(m) the receipt of a dividend after an Insolvency Event or the
payment of a sum or sums into the account of the Debtor or
another person at any time (whether received or paid jointly,
jointly and severally or otherwise);
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(c)Xxxxxxxxx Xxxxxxx Xxxxxx Amendment and Restatement Deed - 46
Deed of Common Terms
26 February 2004
(n) any part of the Guaranteed Money being irrecoverable;
(o) an assignment of rights in connection with the Guaranteed
Money;
(p) the acceptance of repudiation or other termination in
connection with the Guaranteed Money;
(q) the invalidity or unenforceability of an obligation or
liability of a person other than the Guarantor;
(r) invalidity or irregularity in the execution of this guarantee
and indemnity by the Guarantor or any deficiency in or
irregularity in the exercise of the powers of the Guarantor to
enter into or observe its obligations under this guarantee and
indemnity or of a Debtor (including any partner in the
Partnership) to enter into or observe its obligations under a
Senior Finance Document;
(s) the opening of a new account by the Debtor with the Trustee,
the Senior Creditors or another person or the operation of a
new account;
(t) any obligation of the Debtor or any other Guarantor being
discharged by operation of law;
(u) property secured under a Security Interest being forfeited,
extinguished, surrendered, resumed or determined.
7.2 Guarantee and indemnity not affected
The liability of the Guarantor under this guarantee and indemnity is
not affected:
(a) because any other person who was intended to enter into this
guarantee and indemnity, or otherwise become a co-surety or
co-indemnifier for payment of the Guaranteed Money or other
money payable under this guarantee and indemnity has not done
so or has not done so effectively; or
(b because a person who is a co-surety or co-indemnifier for
payment of the Guaranteed Money or other money payable under
this guarantee and indemnity is discharged under an agreement
or under statute or a principle of law or equity.
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8 Suspension of Guarantor's rights
8.1 Guarantor's rights are suspended
As long as the Guaranteed Money or other money payable under this
guarantee and indemnity remains unpaid, the Guarantor must not without
the consent of the Trustee:
(a) in reduction of its liability under this guarantee and
indemnity, raise a defence, set-off (except for any set-off
permitted under a Hedge Agreement) or counterclaim available
to itself, the Debtor or a co-surety or co-indemnifier against
the Trustee or a Senior Creditor or claim a set-off or make a
counterclaim against the Trustee or a Senior Creditor; or
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(c)Xxxxxxxxx Xxxxxxx Xxxxxx Amendment and Restatement Deed - 47
Deed of Common Terms
26 February 2004
(b) except as expressly permitted by the Senior Finance Documents,
make a claim or enforce a right (including, without
limitation, an Encumbrance) against the Debtor or any other
Guarantor or against their estate or property; or
(c) prove in competition with the Trustee or a Senior Creditor if
an Insolvency Event occurs in respect of the Debtor or any
other Guarantor whether in respect of an amount paid by the
Guarantor under this guarantee and indemnity, in respect of
another amount (including the proceeds of a Security Interest)
applied by the Trustee or a Senior Creditor in reduction of
the Guarantor's liability under this guarantee and indemnity,
or otherwise; or
(d) claim to be entitled by way of contribution, indemnity,
subrogation, marshalling or otherwise to the benefit of a
Security Interest or guarantee or a share in it now or
subsequently held for the Guaranteed Money or other money
payable under this guarantee and indemnity.
8.2 Trustee's right to prove
The Guarantor irrevocably appoints the Trustee and each Authorised
Officer of the Trustee severally its attorney.
8.3 Attorney's powers
Each attorney may:
(a) in the name of the Guarantor or the attorney do anything which
the Guarantor may lawfully do to exercise a right of proof of
the Guarantor following an Insolvency Event occurring in
respect of the Debtor or any other Guarantor in connection
with a matter not connected with its rights as Guarantor
(including, without limitation, 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.
8.4 Ratification
The Guarantor agrees to ratify anything done by an attorney or its
delegate in accordance with clause 8.3.
8.5 Right of Proof
The Guarantor may not exercise the right of proof referred to in clause
8.3 independently of the attorney.
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 48
Deed of Common Terms
26 February 2004
8.6 Application of insolvency dividends
The attorney need not account to the Guarantor for any dividend
received on the exercise of that right of proof until the Trustee and
the Senior Creditors have received all of the Guaranteed Money and all
of the other money payable under this guarantee and indemnity.
-------------------------------------------------------------------------------
9 Payments
9.1 Manner of payment
The Guarantor agrees to make all payments under this guarantee and
indemnity to the Trustee either for the Trustee's own account or for
the account of the Senior Creditor entitled to it (as the case may be).
The Guarantor agrees to make payments to the Trustee under this
guarantee and indemnity in immediately available funds to the account
and in the manner notified by the Trustee to the Guarantor.
9.2 No set-off or counterclaim
The Guarantor agrees to make payments without set-off or counterclaim
and free and clear of any withholding or deduction for Taxes unless
prohibited by law.
9.3 Currency of payment
The Guarantor waives any right which it has in any jurisdiction to pay
an amount in a currency other than the currency in which the Guaranteed
Money or other money payable under this guarantee and indemnity is
payable.
9.4 Currency conversion
If an amount is due in a currency and the Trustee receives payment in
another currency, then the Trustee may convert the amount received into
the due currency at the spot rate at which the Trustee is able to
purchase the due currency with the amount received at the time of its
receipt. The Guarantor satisfies its obligation to pay in the due
currency only to the extent of the amount of the due currency purchased
after deducting the costs of conversion. The Guarantor acknowledges
that it may be necessary for the Trustee to convert amounts received
through a currency other than the due currency to ascertain the
equivalent in the due currency of the amount received.
9.5 Taxes
If a law requires the Guarantor to withhold or deduct Taxes from a
payment so that the Trustee or a Senior Creditor, as the case may be,
would not actually receive for its own benefit on the due date the full
amount provided for under this guarantee and indemnity, then:
(a) the amount payable is increased so that, after making that
deduction and deductions applicable to additional amounts
payable under this clause, the Trustee or the Senior Creditor,
as the case may be, is entitled to receive the amount it would
have received if no deductions had been required; and
-------------------------------------------------------------------------------
(c)Xxxxxxxxx Xxxxxxx Xxxxxx Amendment and Restatement Deed - 49
Deed of Common Terms
26 February 2004
(b) the Guarantor must make the deductions; and
(c) the Guarantor must pay the full amount deducted to the
relevant authority in accordance with applicable law and
deliver the original receipts to the Trustee.
10 Other securities and obligations of Guarantor
The Trustee's and Senior Creditors' rights under this guarantee and
indemnity are additional to and do not merge with or affect and are not
affected by:
(a) any Security Interest now or subsequently held by the Trustee
or the Senior Creditors from the Debtor, the Guarantor or any
other person; or
(b) any other obligation of the Guarantor to the Trustee or the
Senior Creditors,
notwithstanding any rule of law or equity or any statutory provision to
the contrary.
-------------------------------------------------------------------------------
11 Reinstatement of Trustee's and Senior Creditors' rights
If a claim is made that all or part of a payment, obligation,
settlement, transaction, conveyance or transfer in connection with the
Guaranteed Money or other money payable under this guarantee and
indemnity is void or voidable under law relating to Insolvency Events
or the protection of creditors or for any other reason and the claim is
upheld, conceded or compromised, then:
(a) the Trustee and each Senior Creditor is entitled immediately
as against the Guarantor to the rights in respect of the
Guaranteed Money to which it would have been entitled if all
or that part of that payment, obligation, settlement,
transaction, conveyance or transfer had not taken place; and
(b) promptly on request from the Trustee or a Senior Creditor, the
Guarantor agrees to do any act and sign any document to
restore to the Trustee or a Senior Creditor any Security
Interest or guarantee held by it from the Guarantor
immediately prior to that payment, obligation, settlement,
transaction, conveyance or transfer.
-------------------------------------------------------------------------------
12 Application of money
The Trustee may apply money paid by the Debtor or the Guarantor or
otherwise towards satisfaction of the Guaranteed Money and other money
payable under this guarantee and indemnity in the manner it sees fit.
The Trustee may place to the credit of a suspense account for as long
as it considers desirable money received under this guarantee and
indemnity and need not apply it towards satisfaction of the Guaranteed
Money or other money payable under this guarantee and indemnity.
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 50
Deed of Common Terms
26 February 2004
-------------------------------------------------------------------------------
13 Security Interests and assignment
Subject to the Deed of Common Terms, the Trustee at any time may create
or allow to exist a Security Interest over or an interest in this
guarantee and indemnity or assign or otherwise dispose of or deal with
its rights under this guarantee and indemnity as the Trustee sees fit.
-------------------------------------------------------------------------------
14 Miscellaneous
14.1 Certificate
A certificate signed by the Trustee or its solicitors about a matter or
about a sum payable to the Trustee or a Senior Creditor in connection
with this guarantee and indemnity is sufficient evidence of the matter
or sum stated in the certificate unless the matter or sum is proved to
be false.
14.2 Exercise of rights
The Trustee may exercise a right, power or remedy at its discretion,
and separately or concurrently with another right, power or remedy. A
single or partial exercise of a right, power or remedy by the Trustee
does not prevent a further exercise of that or an exercise of any other
right, power or remedy. Failure by the Trustee to exercise or delay in
exercising a right, power or remedy does not prevent its exercise. The
Trustee is not liable for any loss caused by the lawful exercise, or
attempted exercise of, failure to exercise, or delay in exercising the
right, power or remedy.
14.3 Waiver and variation
A provision of or a right created under this guarantee and indemnity
may not be waived or varied except in writing signed by the party or
parties to be bound.
14.4 Supervening legislation
Any present or future legislation which operates to vary the
obligations of the Guarantor in connection with this guarantee and
indemnity with the result that the Trustee's or a Senior Creditor's
rights, powers or remedies are adversely affected (including, without
limitation, by way of delay or postponement) is excluded except to the
extent that its exclusion is prohibited or rendered ineffective by law.
14.5 Approvals and consent
The Trustee may give conditionally or unconditionally or withhold its
approval or consent in its absolute discretion unless this guarantee
and indemnity expressly provides otherwise.
14.6 Remedies cumulative
The rights, powers and remedies provided in this guarantee and
indemnity are cumulative with and not exclusive of the rights, powers
or remedies provided by law independently of this guarantee and
indemnity.
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 51
Deed of Common Terms
26 February 2004
14.7 Set-off
At any time after an Event of Default for so long as it subsists, the
Trustee may set-off any amount due for payment by the Trustee to the
Guarantor against any amount due for payment by that Guarantor to the
Trustee under this guarantee and indemnity. The Guarantor authorises
the Trustee in the name of the Guarantor or the Trustee to do anything
(including, without limitation, to execute any document) that is
required for that purpose.
14.8 Indemnities
Each indemnity in this guarantee and indemnity is a continuing
obligation, separate and independent from the other obligations of the
Guarantor and survives termination of this guarantee and indemnity. It
is not necessary for the Trustee or a Senior Creditor to incur any
expense or make any payment before enforcing any right of indemnity
conferred by this guarantee and indemnity.
14.9 Time of the essence
Time is of the essence of this guarantee and indemnity in respect of an
obligation of the Guarantor to pay money.
14.10 Further assurances
At the Trustee's request the Guarantor must, at its own expense:
(a) execute and cause its successors to execute documents and do
everything else necessary or appropriate to bind the Guarantor
and its successors under this guarantee and indemnity; and
(b) use its best endeavours to cause relevant third parties to do
likewise to bind every person intended to be bound under this
guarantee and indemnity.
-------------------------------------------------------------------------------
15 Governing law, jurisdiction and service of process
15.1 Governing Law
This guarantee and indemnity is governed by the law in force in the
State of Victoria.
15.2 Submission to jurisdiction
Each party irrevocably and unconditionally submits to the non-exclusive
jurisdiction of the courts of the state 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.
15.3 Service of Notices
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 the Deed of Common Terms.
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 52
Deed of Common Terms
26 February 2004
-------------------------------------------------------------------------------
16 Counterparts
This guarantee and indemnity may consist of a number of counterparts
and the counterparts taken together constitute one and the same
instrument.
EXECUTED as an agreement
-------------------------------------------------------------------------------
(c)Xxxxxxxxx Xxxxxxx Xxxxxx Amendment and Restatement Deed - 53
Deed of Common Terms
26 February 2004
Amendment and Restatement Deed - Deed of
Common Terms
Schedule 1 - Guarantors
--------------------------------------------------------------
Name ABN
--------------------------------------------------------------
--------------------------------------------------------------
TXU (No. 8) Pty Ltd 15 085 235 776
--------------------------------------------------------------
--------------------------------------------------------------
TXU Australia Group Pty Ltd 96 104 896 497
--------------------------------------------------------------
--------------------------------------------------------------
TXU Electricity Limited 91 064 651 118
--------------------------------------------------------------
--------------------------------------------------------------
TXU Networks Pty Ltd 27 075 826 881
--------------------------------------------------------------
--------------------------------------------------------------
TXU Networks (Gas) Pty Ltd 43 086 015 036
--------------------------------------------------------------
--------------------------------------------------------------
TXU (South Australia) Pty Ltd 84 000 000 000
--------------------------------------------------------------
--------------------------------------------------------------
TXU Gas Storage Pty Ltd 71 079 089 311
--------------------------------------------------------------
--------------------------------------------------------------
TXU Pty Ltd 99 000 000 000
--------------------------------------------------------------
--------------------------------------------------------------
TXU Australia Pty Ltd 96 000 000 000
--------------------------------------------------------------
--------------------------------------------------------------
[Others to be completed].
--------------------------------------------------------------
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(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 54
Deed of Common Terms
26 February 2004
Execution page
-------------------------------------------------------------------------------
GUARANTORS
[INSERT EXECUTION CLAUSES]
-------------------------------------------------------------------------------
(c)Xxxxxxxxx Xxxxxxx Xxxxxx Amendment and Restatement Deed - 55
Deed of Common Terms
26 February 2004
TRUSTEE
SIGNED by )
)
as attorney for ANZ FIDUCIARY SERVICES PTY )
LTD under power of attorney dated in the )
presence of: )
)
)
............................................. )
Signature of witness )
).............................
............................................. )By executing this guarantee
Name of witness (block letters) )and indemnity the attorney
)states that the attorney has
)received no notice of
)revocation of the power of
)attorney
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(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 56
Deed of Common Terms
26 February 2004
Amendment and Restatement Deed - Deed of
Common Terms
IPO Guarantee and
Indemnity
EACH OF THE COMPANIES
SPECIFIED IN SCHEDULE 1
(as the "Guarantors")
AND
ANZ FIDUCIARY SERVICES PTY LTD
(ABN 91 100 709 493)
("Trustee")
-------------------------------------------------------------------------------
(c)Xxxxxxxxx Xxxxxxx Xxxxxx Amendment and Restatement Deed - 57
Deed of Common Terms
26 February 2004
Schedule 6 - Form of Solvency Certificate
[LETTERHEAD OF EACH OBLIGOR]
[ ]
To: Each Senior Creditor under the Deed of Common Terms previously known as
the Security Trust Deed dated 24 February 1999 executed by the TXU
Australia Holdings (Partnership) Limited Partnership, the Borrower, TXU
(No. 8), TXU (No. 9), TXUA, TXU Networks (Gas) Pty Ltd (formerly known
as Westar Pty Limited), TXU Pty Ltd (formerly known as Kinetik Energy
Pty Ltd), TXU Electricity Limited (formerly known as Eastern Energy
Limited), TXU Corp. (formerly known as Texas Utilities Company),
Citibank, N.A. and National Australia Bank Limited as amended by deeds
dated 22 February 2000, 31 October 2001, 8 December 2003 and [ ]
February 2004 ("Deed of Common Terms")
Certificate of Solvency
I, of , am a director of
[insert the relevant name of Obligor] (the "Company"). I refer to the Deed of
Common Terms under which the Company assumes the obligations of
[an Obligor/and the Borrower/and a Guarantor].
Definitions in the Deed of Common Terms apply to the certificate.
I CERTIFY as follows:
1 I have reasonable grounds to expect, and do expect, that the Company
is, at the date of this Certificate and will be on the IPO Effective
Date, able to pay all the Company's debts as and when they become due
and payable.
2 As far as I am aware after making due enquiries, as at the date of this
Certificate:
(a) no application has been made by the Company; and
(b) no order of any court has been made or proceedings commenced
against the Company of which the Company has received written
notice; and
(c) no resolution has been passed or proposed in a notice of
meeting of the Company,
for:
(i) the winding up, dissolution or administration of the Company;
or
-------------------------------------------------------------------------------
(c)Xxxxxxxxx Xxxxxxx Xxxxxx Amendment and Restatement Deed - 58
Deed of Common Terms
26 February 2004
(ii) the Company entering into an arrangement, compromise or
composition with or assignment for the benefit of its
creditors or a class of them; or
(iii) the appointment of a Controller, administrator, liquidator or
provisional liquidator to the Company or any of its assets.
DATED [ ]
.............................
[ ]
Director
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 59
Deed of Common Terms
26 February 2004
Amendment and Restatement Deed - Deed of
Common Terms
Annexure A - Deed of Common Terms
(Refinancing)
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 60
Deed of Common Terms
26 February 2004
Amendment and Restatement Deed - Deed of
Common Terms
Annexure B - Deed of Common Terms (IPO)
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed - 61
Deed of Common Terms
26 February 2004
Amendment and Restatement Deed -
Deed of Common Terms
Contents
Signing page
DATED:
BORROWER
SIGNED, SEALED AND DELIVERED )
for TXU AUSTRALIA HOLDINGS )
PTY LIMITED under power of attorney )
dated 23 February 2004 )
in the presence of: )
)
)
/s/Xxxx Xxxxxxxx )
---------------------------------------- )
Signature of witness )
)
Xxxx Xxxxxxxx )
---------------------------------------- )
Name of witness (block letters) )
)
39/000 Xxxxxxx Xx. Xxxx. )
---------------------------------------- )
Address of witness )
)
Solicitor )/s/Xxxx Xxxxxx Xxxxx
---------------------------------------- )------------------------------------
Occupation of witness )By executing this deed the attorney
)states that the attorney has received
)no notice of revocation of the power
)of attorney
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed -
Deed of Common Terms
26 February 2004
PARTNERSHIP
SIGNED, SEALED AND DELIVERED by )
Xxxx Xxxxxx Xxxxx )
as attorney for TXU AUSTRALIA HOLDINGS )
(PARTNERSHIP) LIMITED PARTNERSHIP the general )
partner of which is TXU AUSTRALIA HOLDINGS (AGP) )
PTY LTD and the limited partners are TXU AUSTRALIA )
(LP) NO.1 LIMITED and TXU AUSTRALIA (LP) NO.2 )
LIMITED under power of attorney dated )
23 February 2004 )
in the presence of: )
)
)
/s/Xxxx Xxxxxxxx )
------------------------------------------------ )
Signature of witness )
)
Xxxx Xxxxxxxx ) /s/Xxxx Xxxxxx Xxxxx
------------------------------------------------ ) --------------------
Name of witness (block letters) ) By executing this deed
) the attorney states
39/000 Xxxxxxx Xx., Xxxx. ) that the attorney has
------------------------------------------------ ) received no notice of
Address of witness ) revocation of the
) power of attorney
Solicitor )
------------------------------------------------ )
Occupation of witness )
)
)
)
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed -
Deed of Common Terms
26 February 2004
OBLIGORS
SIGNED, SEALED AND DELIVERED by Xxxx Xxxxxx Xxxxx )
as attorney for )
TXU AUSTRALIA HOLDINGS (PARTNERSHIP) LIMITED )
PARTNERSHIP the general partner of which is TXU )
Australia Holdings (AGP) Pty Ltd and the limited )
partners are TXU Australia (LP) No 1 Limited and )
TXU Australia (LP) No 2 Limited )
TXU AUSTRALIA GROUP PTY LTD )
TXU AUSTRALIA PTY LTD )
TXU (NO. 8) PTY LTD )
TXU (NO. 9) PTY LTD )
TXU NETWORKS (GAS) PTY LTD )
TXU PTY LTD )
TXU ELECTRICITY LIMITED )
TXU (NO. 12) PTY LTD )
TXU (NO. 7) PTY LTD )
TXU GAS STORAGE PTY LTD )
TXU NETWORKS PTY LTD )
TXU (NO. 14) PTY LTD )
TXU CUSTOMER SERVICES PTY LTD )
TXU (TALLAWARRA) PTY LTD )
TXU (NO. 13) PTY LTD )
TXU AUSTRALIA SERVICES PTY LTD )
TXU (SOUTH AUSTRALIA) PTY LTD )
TXU TORRENS ISLAND PTY LTD )
JOULE RESOURCES PTY LTD )
TXU HOME SERVICES PTY LTD )
DATA AND MEASUREMENT SOLUTIONS PTY LTD )
TXU MEB HOLDINGS PTY LTD )
TXU MEB PTY LTD )
TXU VN PTY LTD )
VICTORIA NETWORKS PTY LTD )
TXU (NO 6) PTY LTD )
TXU AUSTRALIA (QUEENSLAND) PTY LTD )
TXU SHARE PLANS PTY LTD )
TXU (TALLAWARRA PIPELINES) PTY LTD )
under powers of attorney dated 23/2/04 )
in the presence of: )
)
)
Xxxx Xxxxxxxx )
------------------------------------------------
Signature of witness )
)
Xxxx Xxxxxxxx )
------------------------------------------------
Name of witness (block letters) )
)
39/000 Xxxxxxx Xx., Xxxx. )
------------------------------------------------
Address of witness )
)
Solicitor )
------------------------------------------------ )/s/Xxxx Xxxxxx Xxxxx
Occupation of witness )-------------------------
)By executing this deed the
)attorney states that the
)attorney has received no
)notice of revocation of
)the powers of attorney
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed -
Deed of Common Terms
26 February 2004
JUNIOR CREDITORS
TXU
SIGNED, SEALED AND DELIVERED by Xxxx X. Xxxxxx )
as duly authorised representative for TXU CORP. in )
the presence of: )
)
)
/s/Xxxxxxxxx X. Xxxxxx )
------------------------------------------------ )
Signature of witness )
)
)
Xxxxxxxxx X. Xxxxxx )
------------------------------------------------ )
Name of witness (block letters) )
)
0000 Xxxxx Xxxxxx, 00xx Xxxxx )
Xxxxxx, Xxxxx 00000 )
------------------- )
Address of witness )
)/s/Xxxx X. Xxxxxx
)------------------
Attorney )By executing this deed
------------------------------------------------ )the authorised
Occupation of witness )representative states that
)the authorised
)representative is duly
)authorised to execute this
)deed on behalf of
)TXU Corp.
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed -
Deed of Common Terms
26 February 2004
SIGNED, SEALED AND DELIVERED )
by TXU AUSTRALIA HOLDINGS )
(AGP) PTY LTD under power of )
attorney dated 23/2/04 )
in the presence of: )
)
)
/s/Xxxx Xxxxxxxx )
--------------------------------------------- )
Signature of witness )
)
)
Xxxx Xxxxxxxx )
--------------------------------------------- )
Name of witness (block letters) )
)
)
39/000 Xxxxxxx Xx., Xxxx. )
--------------------------------------------- )
Address of witness )
)/s/Xxxx Xxxxxx Xxxxx
)--------------------------
)By executing this deed the
)attorney states that the
Solicitor )attorney has received no
--------------------------------------------- )notice of revocation of
Occupation of witness )the powers of attorney.
)
SIGNED, SEALED AND DELIVERED )
by TXU AUSTRALIA (LP) No.1 )
LIMITED under power of attorney dated )
23 February 2004 )
in the presence of: )
)
)
/s/Xxxx Xxxxxxxx )
-------------------------------------------- )
Signature of witness )
)
)
Xxxx Xxxxxxxx )
-------------------------------------------- )
Name of witness (block letters) )
)
)
39/000 Xxxxxxx Xx., Xxxx. )
-------------------------------------------- )
Address of witness )
) /s/Xxxx Xxxxxx Xxxxx
--------------------------
) By executing this deed the
) attorney states that the
Solicitor ) attorney has received no
-------------------------------------------- ) notice of revocation of
Occupation of witness ) the powers of attorney.
)
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed -
Deed of Common Terms
26 February 2004
SIGNED, SEALED AND DELIVERED )
by TXU AUSTRALIA (LP) No.2 )
LIMITED under power of attorney dated )
23 February 2004 )
in the presence of: )
)
)
/s/Xxxx Xxxxxxxx )
-------------------------------------------
Signature of witness )
)
)
Xxxx Xxxxxxxx )
-------------------------------------------
Name of witness (block letters) )
)
)
39/000 Xxxxxxx Xx., Xxxx. )
-------------------------------------------
Address of witness )
)/s/Xxxx Xxxxxx Xxxxx )
)------------------------
)By executing this deed the
Solicitor )attorney states that the attorney
------------------------------------------- )has received no notice of
Occupation of witness )revocation of the powers of
)attorney.
SIGNED, SEALED AND DELIVERED )
by TXU AUSTRALIA PTY LTD under )
power of attorney dated 23/2/04 )
in the presence of: )
)
)
/s/Xxxx Xxxxxxxx )
------------------------------------------- )
Signature of witness )
)
)
Xxxx Xxxxxxxx )
------------------------------------------- )
Name of witness (block letters) )
)
)
39/000 Xxxxxxx Xx., Xxxx. )
------------------------------------------- )
Address of witness )
)
) /s/Xxxx Xxxxxx Xxxxx
Xxxxxxxxx )---------------------------------
------------------------------------------- )By executing this deed the
Occupation of witness )attorney states that the attorney
)has received no notice of
)revocation of the powers of
)attorney.
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed -
Deed of Common Terms
26 February 2004
SENIOR CREDITORS
SIGNED, SEALED AND DELIVERED )
by Xxxxxx X. Xxxxxxx )
as attorney for AUSTRALIA )
AND NEW ZEALAND BANKING GROUP )
LIMITED under power of attorney )
dated 9 October 1992 )
in the presence of: )
)
)
/s/Xxxxxxx Xxxx )
------------------------------------------------ )
Signature of witness )
)
Xxxxxxx Xxxx )
------------------------------------------------ )
Name of witness (block letters) )
Level 28, 000 Xxxxxxx Xx. )
Xxxxxxxxx XXX 3000 )
------------------------------------------------ )
Address of witness )
)/s/Xxxxxx X. Xxxxxxx
Xxxxxxxxx )--------------------
------------------------------------------------ )By executing this deed
Occupation of witness )the attorney states that
)the attorney has received
)no notice of revocation
)of the power of attorney
SIGNED, SEALED AND DELIVERED )
by Xxxxxxx Xxxxx )
as attorney for BNP PARIBAS under )
power of attorney dated )
24 February 2004 )
in the presence of: )
)
)
/s/Xxxx Xxxxxxxxxx )
------------------------------------------------ )
Signature of witness )
)
Xxxx Xxxxxxxxxx )
------------------------------------------------ )
Name of witness (block letters) )
)
28/000 Xxxxxxx Xx. Xxxxxxxxx XXX 0000 )
------------------------------------------------ )
Address of witness )
)
Articled Clerk )
------------------------------------------------ )/s/Xxxxxxx Xxxxx
Occupation of witness )------------------
)By executing this deed
)the attorney states that
)the attorney has received
)no notice of revocation
)of the power of attorney
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed -
Deed of Common Terms
26 February 2004
SIGNED, SEALED AND DELIVERED )
by Xxxx Xxxxxx )
and Xxxxxx Xxxxxxx )
as attorneys for CITIBANK, N.A. )
under power of attorney dated )
20 August 1996 )
in the presence of: )
)
)
/s/Xxxxxxx Xxxx )
------------------------------------------------ )
Signature of witness )
)
Xxxxxxx Xxxx )
------------------------------------------------ )
Name of witness (block letters) )
Level 28, 000 Xxxxxxx Xx. )/s/Xxxx Xxxxxx
)------------------------
Melbourne VIC 3000 )By executing this deed
------------------------------------------------ )the attorney states that
Address of witness )the attorney has received
)no notice of revocation
)of the power of attorney
Solicitor )
------------------------------------------------ )
Occupation of witness )
) /s/Xxxxxx Xxxxxxx
)-------------------------
)By executing this deed
)the attorney states that
)the attorney has received
)no notice of revocation
)of the power of attorney
SIGNED, SEALED AND DELIVERED )
by )
Xxxxxxx Xxxxx )
as attorney for CREDIT SUISSE FIRST )
BOSTON under power of attorney dated )
25 February 2004 )
in the presence of: )
)
)
/s/Xxxx Xxxxxxxxxx )
------------------------------------------------ )
Signature of witness )
)
Xxxx Xxxxxxxxxx )/s/Xxxxxxx Xxxxx
------------------------------------------------ )----------------
Name of witness (block letters) ) By executing this deed
) the attorney states that
) the attorney has received
28/000 Xxxxxxx Xx., Xxxxxxxxx XXX 0000 ) no notice of revocation
------------------------------------------------ ) of the power of attorney
Address of witness )
)
Articled Clerk )
------------------------------------------------
Occupation of witness )
)
)
)
)
)
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed -
Deed of Common Terms
26 February 2004
SIGNED, SEALED AND DELIVERED )
by Xxxxxxxx Xxxxxx )
as attorney for COMMONWEALTH )
BANK OF AUSTRALIA under power of )
attorney dated 17 /11/97 )
)
in the presence of: )
)
)
/s/Xxxxxxx Xxxx )
------------------------------------------------ )
Signature of witness )
)
Xxxxxxx Xxxx )
------------------------------------------------ )
Name of witness (block letters) )
)
Level 28, 000 Xxxxxxx Xx. Xxxxxxxxx XXX 0000 )
------------------------------------------------ )
Address of witness )/s/Xxxxxxxx Xxxxxx
)------------------
Solicitor )By executing this deed
------------------------------------------------ )the attorney states that
Occupation of witness )the attorney has received
)no notice of revocation
)of the power of
)attorney
SIGNED, SEALED AND DELIVERED )
by Xxxxxxx Xxxxx )
as attorney for ING BANK N.V. )
(SYDNEY BRANCH) under power of )
attorney dated 26 February 2004 )
)
in the presence of: )
)
)
/s/Xxxx Xxxxxxxxxx )
------------------------------------------------ )
Signature of witness )
)
Xxxx Xxxxxxxxxx )
------------------------------------------------ )
Name of witness (block letters) )
)
28/000 Xxxxxxx Xx Xxxxxxxxx XXX 0000 )
------------------------------------------------ )
Address of witness )
)/s/Xxxxxxx Xxxxx
Articled Clerk )----------------
------------------------------------------------ )By executing this deed
Occupation of witness )the attorney states that
)the attorney has received
)no notice of revocation
)of the power of attorney
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed -
Deed of Common Terms
26 February 2004
SIGNED, SEALED AND DELIVERED by Xxxxxxx Xxxxx )
as attorney for JPMORGAN CHASE BANK )
under power of attorney dated 25 February 2004 )
in the presence of: )
)
)
/s/Xxxx Xxxxxxxxxx )
------------------------------------------------
Signature of witness )
)
Xxxx Xxxxxxxxxx )
------------------------------------------------
Name of witness (block letters) )
)
28/000 Xxxxxxx Xx., Xxxxxxxxx XXX 0000 )
------------------------------------------------
Address of witness )
)
Articled Clerk )
------------------------------------------------
Occupation of witness ) /s/Xxxxxxx Xxxxx
------------------------
)By executing this deed
)the attorney states that
)the attorney has received
)no notice of revocation
)of the power of attorney
SIGNED, SEALED AND DELIVERED by Xxxxxxx Xxxxx )
as attorney for MIZUHO CORPORATE BANK LTD under )
power of attorney dated 24 February 2004 )
)
in the presence of: )
)
)
/s/Xxxx Xxxxxxxxxx )
------------------------------------------------ )
Signature of witness )
)
Xxxx Xxxxxxxxxx )
------------------------------------------------ )
Name of witness (block letters) )
)
28/000 Xxxxxxx Xx., Xxxxxxxxx XXX 3000 )
------------------------------------------------ )
Address of witness )
)
Articled Clerk )
------------------------------------------------ )
Occupation of witness ) /s/Xxxxxxx Xxxxx
) ----------------------
)By executing this deed
)the attorney states that
)the attorney has received
)no notice of revocation
)of the power of attorney
-------------------------------------------------------------------------------
(c)Xxxxxxxxx Xxxxxxx Xxxxxx Amendment and Restatement Deed -
Deed of Common Terms
SIGNED, SEALED AND DELIVERED )
by Xxxx Xxxxx )
as attorney for NATIONAL )
AUSTRALIA BANK LIMITED under )
power of attorney dated )
28 February 1991 )
in the presence of: )
)
)
/s/Xxxxxxx Xxxx )
------------------------------------------------ )
Signature of witness )
)
Xxxxxxx Xxxx )
------------------------------------------------ )
Name of witness (block letters) )
)
28/000 Xxxxxxx Xx. Xxxxxxxxx XXX 0000 )
------------------------------------------------ )
Address of witness )
)
Solicitor )/s/Xxxx Xxxxx
------------------------------------------------ )-------------------------
Occupation of witness )By executing this deed
)the attorney states that
)the attorney has received
)no notice of revocation
)of the power of attorney
SIGNED, SEALED AND DELIVERED )
by Xxxxxx Xxx )
as attorney for THE BANK OF TOKYO )
- MITSUBISHI, LTD. MELBOURNE )
BRANCH under power of attorney dated )
31 October 2003 )
in the presence of: )
)
)
/s/Xxxxxxx Xxxx )
------------------------------------------------ )
Signature of witness )
)
Xxxxxxx Xxxx )
------------------------------------------------ )
Name of witness (block letters) )
Level 28, 000 Xxxxxxx Xx. )
Xxxxxxxxx XXX 3000 )
------------------------------------------------ )
Address of witness )
)
Solicitor ) /s/Xxxxxx Xxx
------------------------------------------------ ) -------------
Occupation of witness )By executing this deed the
)attorney states that the
)attorney has received no
)notice of revocation of
)the power of attorney
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed -
Deed of Common Terms
26 February 2004
SIGNED, SEALED AND DELIVERED )
by Xxxxxxx Xxxxx )
as attorney for UBS AG, AUSTRALIA )
BRANCH under power of attorney dated )
24 February 2004 )
in the presence of: )
)
)
/s/Xxxx Xxxxxxxxxx )
------------------------------------------------ )
Signature of witness )
)
Xxxx Xxxxxxxxxx )
------------------------------------------------ )
Name of witness (block letters) )
)
28/000 Xxxxxxx Xx. Xxxxxxxxx XXX 0000 )
------------------------------------------------ )
Address of witness )
)
Articled Clerk )/s/Xxxxxxx Xxxxx
------------------------------------------------ )----------------
Occupation of witness )By executing this deed
)the attorney states that
)the attorney has received
)no notice of revocation
)of the power of attorney
SIGNED, SEALED AND DELIVERED )
by Xxxxxxx Xxxxx )
as attorney for UNITED OVERSEAS )
BANK LIMITED under power of )
attorney dated 25 February 2004 )
)
in the presence of: )
)
)
/s/Xxxx Xxxxxxxxxx )
------------------------------------------------ )
Signature of witness )
)
Xxxx Xxxxxxxxxx )
------------------------------------------------ )
Name of witness (block letters) )
)
28/000 Xxxxxxx Xx. Xxxxxxxxx XXX 0000 )
------------------------------------------------ )
Address of witness )
)/s/Xxxxxxx Xxxxx
Articled Clerk )----------------
------------------------------------------------ )By executing this deed
Occupation of witness )the attorney states that
)the attorney has received
)no notice of revocation
)of the power of attorney
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed -
Deed of Common Terms
26 February 2004
SIGNED, SEALED AND DELIVERED )
by Xxxxxxx Xxxxxxxx )
as attorney for WESTPAC BANKING )
CORPORATION under power of attorney )
dated 23 December 2003 )
)
in the presence of: )
)
)
/s/Xxxxxxx Xxxx )
------------------------------------------------ )
Signature of witness )
)
Xxxxxxx Xxxx )
------------------------------------------------ )
Name of witness (block letters) )
)
28/000 Xxxxxxx Xx., Xxxxxxxxx XXX 3000 )
------------------------------------------------ )
Address of witness )
)
Solicitor )/s/Xxxxxxx Xxxxxxxx
------------------------------------------------ )-------------------
Occupation of witness )By executing this deed the
)attorney states that the
)attorney has received no
)notice of revocation of
)the power of attorney
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed -
Deed of Common Terms
26 February 2004
CONTINUING HEDGE COUNTERPARTIES
SIGNED, SEALED AND DELIVERED )
by Xxxxxx X. Xxxxxxx )
as attorney for AUSTRALIA AND )
NEW ZEALAND BANKING GROUP )
LIMITED under power of attorney dated )
9 October 1992 )
in the presence of: )
)
)
/s/Xxxxxxx Xxxx )
----------------------------------------------- )
Signature of witness )
)
Xxxxxxx Xxxx )
----------------------------------------------- )
Name of witness (block letters) )
)
28/000 Xxxxxxx Xx., Xxxxxxxxx XXX 0000 )
----------------------------------------------- )
Address of witness )
)/s/Xxxxxx X. Xxxxxxx
Xxxxxxxxx )--------------------
----------------------------------------------- )By executing this deed
Occupation of witness )the attorney states that
)the attorney has received
)no notice of revocation
)of the power of attorney
SIGNED, SEALED AND DELIVERED )
by Xxxx Xxxxxx and )
Xxxxxx Xxxxxxx )
as attorneys for CITIBANK, N.A. under )
power of attorney dated )
20 August 1996 )
in the presence of: )
)
)
)
/s/Xxxxxxx Xxxx )
----------------------------------------------- )
Signature of witness )
)
Xxxxxxx Xxxx )
----------------------------------------------- )
Name of witness (block letters) )/s/Xxxx Xxxxxx
)-------------------------
28/525 Xxxxxxx St., Melbourne VIC 3000 )By executing this deed the
----------------------------------------------- )attorney states that the
Address of witness )attorney has received no
)the power of notice of
)revocation of attorney
Solicitor )
----------------------------------------------- )
Occupation of witness )/s/Xxxxxx Xxxxxxx
)-------------------------
)By executing this deed the
)attorney states that the
)attorney has received no
)notice of revocation of
)the power of attorney
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed -
Deed of Common Terms
26 February 2004
SIGNED, SEALED AND DELIVERED )
by Xxxxxxxx Xxxxxx )
as attorney for COMMONWEALTH )
BANK OF AUSTRALIA under power of )
attorney dated 17/11/97 )
)
in the presence of: )
)
)
/s/Xxxxxxx Xxxx )
------------------------------------------------
Signature of witness )
)
Xxxxxxx Xxxx )
------------------------------------------------
Name of witness (block letters) )
)
28/000 Xxxxxxx Xx., Xxxxxxxxx XXX 0000 )
------------------------------------------------
Address of witness )
)/s/Xxxxxxxx Xxxxxx
Solicitor )-------------------------
------------------------------------------------ )By executing this deed the
Occupation of witness )attorney states that the
)attorney has received no
)notice of revocation of
)the power of attorney
SIGNED, SEALED AND DELIVERED )
by Xxxx Xxxxx )
as attorney for NATIONAL )
AUSTRALIA BANK LIMITED under )
power of attorney dated 28 February 1991 )
)
in the presence of: )
)
)
/s/Xxxxxxx Xxxx )
------------------------------------------------ )
Signature of witness )
)
Xxxxxxx Keep )
------------------------------------------------ )
Name of witness (block letters) )
)
28/000 Xxxxxxx Xx., Xxxxxxxxx XXX 0000 )
------------------------------------------------ )
Address of witness )
)/s/Xxxx Xxxxx
Solicitor )--------------------
------------------------------------------------ )By executing this deed
Occupation of witness )the attorney states that
)the attorney has received
)no notice of revocation
)of the power of attorney
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed -
Deed of Common Terms
26 February 2004
SIGNED, SEALED AND DELIVERED )
by Xxxxxxx Xxxxx as attorney for SOCIETE GENERALE )
AUSTRALIA BRANCH under power of )
attorney dated 26 February 2004 )
)
in the presence of: )
)
)
/s/Xxxx Xxxxxxxxxx )
------------------------------------------------ )
Signature of witness )
)
Xxxx Xxxxxxxxxx )
------------------------------------------------ )
Name of witness (block letters) )
)
28/000 Xxxxxxx Xx. Xxxxxxxxx XXX 0000 )
------------------------------------------------ )
Address of witness )
)/s/Xxxxxxx Xxxxx
Articled Clerk )------------------------
------------------------------------------------ )By executing this deed
Occupation of witness )the attorney states that
)the attorney has received
)no notice of revocation
)of the power of attorney
SIGNED, SEALED AND DELIVERED )
by Xxxxxxx Xxxxx )
as attorney for JPMORGAN CHASE )
BANK under power of attorney dated )
25 February 2004 )
in the presence of: )
)
)
/s/Xxxx Xxxxxxxxxx )
------------------------------------------------ )
Signature of witness )
)
Xxxx Xxxxxxxxxx )
------------------------------------------------ )
Name of witness (block letters) )
)
28/000 Xxxxxxx Xx. Xxxxxxxxx XXX 0000 )
------------------------------------------------ )
Address of witness )
)
Articled Clerk ) /s/Xxxxxxx Xxxxx
------------------------------------------------ )-------------------------
Occupation of witness )By executing this deed
)the attorney states that
)the attorney has received
)no notice of revocation
)of the power of attorney
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed -
Deed of Common Terms
26 February 2004
SIGNED, SEALED AND DELIVERED )
on behalf of the THE TORONTO- )
DOMINION BANK in pursuance of a )
resolution of the Board of Directors and in )
the presence of: )
)
)
/s/Xxxxxxx Xxxx )
------------------------------------------------ )
Witness )
)
Xxxxxxx Xxxx )
------------------------------------------------ )
Name )/s/Xxxx Xxxxx
)-------------------------
Solicitor )Name: Xxxx Xxxxx
------------------------------------------------ )Title: Managing Director
Title )
)
)
)
)
)
SIGNED, SEALED AND DELIVERED )
by Xxxxxxx Xxxxx )
as attorney for UBS AG, AUSTRALIA )
BRANCH under power of attorney dated )
24 February 2004 )
in the presence of: )
)
)
/s/Xxxx Xxxxxxxxxx )
------------------------------------------------ )
Signature of witness )
)
Xxxx Xxxxxxxxxx )
------------------------------------------------ )
Name of witness (block letters) )
)
28/000 Xxxxxxx Xx. Xxxxxxxxx XXX 0000 )
------------------------------------------------ )
Address of witness )
)
Articled Clerk )/s/Xxxxxxx Xxxxx
------------------------------------------------ )-------------------------
Occupation of witness )By executing this deed
)the attorney states that
)the attorney has received
)no notice of revocation
)of the power of attorney
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed -
Deed of Common Terms
26 February 2004
SIGNED, SEALED AND DELIVERED )
by Xxxxxxx Xxxxxxxx )
as attorney for WESTPAC )
BANKING CORPORATION under power of )
attorney dated )
20 December 2003 )
in the presence of: )
)
)
/s/Xxxxxxx Xxxx )
------------------------------------------------ )
Signature of witness )
)
Xxxxxxx Xxxx )
------------------------------------------------ )
Name of witness (block letters) )
)
28/000 Xxxxxxx Xx. Xxxxxxxxx XXX 0000 )
------------------------------------------------ )
Address of witness ) /s/Xxxxxxx Xxxxxxxx
) ------------------------
Solicitor )By executing this deed the
------------------------------------------------ )attorneystates that the
Occupation of witness )attorney has received no
)notice of revocation of
)the power of attorney
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed -
Deed of Common Terms
26 February 2004
NEW TRUSTEE
SIGNED, SEALED AND DELIVERED )
by Xxxx Xxxxxx )
as attorney for ANZ FIDUCIARY )
SERVICES PTY LTD under power of )
attorney dated 25/02/04 )
)
in the presence of: )
)
)
/s/Xxxxxxx Xxxx )
------------------------------------------------ )
Signature of witness )
)
Xxxxxxx Xxxx )
------------------------------------------------ )
Name of witness (block letters) )
)
28/000 Xxxxxxx Xx. Xxxxxxxxx XXX 0000 )
------------------------------------------------ )
Address of witness )
)/s/Xxxx Xxxxxx
Xxxxxxxxx ) ---------------------
------------------------------------------------ )By executing this deed
Occupation of witness )the attorney states that
)the attorney has received
)no notice of revocation
)of the power of attorney
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed -
Deed of Common Terms
26 February 2004
RETIRING TRUSTEE
SIGNED, SEALED AND DELIVERED )
by Xxxxx Xxxxxxxxxxxx )
as attorney for NATIONAL )
AUSTRALIA BANK LIMITED under )
power of attorney dated 28 February 1991 )
in the presence of: )
)
)
/s/Xxxxxxx Xxxx )
------------------------------------------------ )
Signature of witness )
)
Xxxxxxx Xxxx )
------------------------------------------------ )
Name of witness (block letters) )
)
28/000 Xxxxxxx Xx. Xxxxxxxxx XXX 0000 )
------------------------------------------------ )
Address of witness )
)/s/Xxxxx Xxxxxxxxxxxx
Solicitor )------------------------
------------------------------------------------ )By executing this deed the
Occupation of witness )attorney states that the
)attorney has received no
)notice of revocation of
)the power of attorney
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed -
Deed of Common Terms
26 February 2004
NEW SYNDICATED FACILITIES AGENT
SIGNED, SEALED AND DELIVERED )
by Xxxx Xxxxxx )
as attorney for AUSTRALIA AND NEW )
ZEALAND BANKING GROUP )
LIMITED under power of attorney dated )
29/01/04 )
in the presence of: )
)
)
/s/Xxxxxxx Xxxx )
------------------------------------------------ )
Signature of witness )
)
Xxxxxxx Xxxx )
------------------------------------------------ )
Name of witness (block letters) )
)
28/000 Xxxxxxx Xx. Xxxxxxxxx XXX 0000 )
------------------------------------------------ )
Address of witness )
)/s/Xxxx Xxxxxx
Solicitor )-------------------------
------------------------------------------------ )By executing this deed
Occupation of witness )the attorney states that
)the attorney has received
)no notice of revocation
)of the power of attorney
RETIRING SYNDICATED FACILITIES AGENT
SIGNED, SEALED AND DELIVERED )
by Xxxxx Xxxxxxxxxxxx )
as attorney for NATIONAL )
AUSTRALIA BANK LIMITED under )
power of attorney dated 28 February 1991 )
in the presence of: )
)
)
/s/Xxxxxxx Xxxx )
------------------------------------------------ )
Signature of witness )
)
Xxxxxxx Xxxx )
------------------------------------------------ )
Name of witness (block letters) )
)
28/000 Xxxxxxx Xx. Xxxxxxxxx XXX 0000 )
------------------------------------------------ )
Address of witness )
)
Articled Clerk )/s/Xxxxx Xxxxxxxxxxxx
------------------------------------------------ )-------------------------
Occupation of witness )By executing this deed the
)attorney states that the
)attorney has received no
)notice of revocation of
)the power of attorney
-------------------------------------------------------------------------------
(c)Mallesons Xxxxxxx Xxxxxx Amendment and Restatement Deed -
Deed of Common Terms
26 February 2004
1
-------------------------------------------------------------------------------
Deed of Common Terms (Refinancing)
Date: 24 February 1999
TXU AUSTRALIA HOLDINGS PTY LTD (ABN 97 086 006 859) having an office at
Level 33, 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx (as "Borrower, as "Guarantor"
and as an "Obligor")
TXU AUSTRALIA HOLDINGS (PARTNERSHIP) LIMITED
PARTNERSHIP a limited partnership formed and
registered under the Partnership Act 1958 of
Victoria, the general partner of which is: TXU
AUSTRALIA HOLDINGS (AGP) PTY LTD (ABN 16 086
014 931) having an office at Level 33, 000
Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx; and the
limited partners of which are: TXU AUSTRALIA
(LP) NO. 1 LIMITED (ARBN 086 406 733), a
company incorporated under the laws of England
and Wales and having its registered office at
Kempson House, Camomile Street, London EC3A
7AN; 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 Kempson House,
Camomile Street, London EC3A 7AN (as the
"Partnership" and as an "Obligor" and as a
"Guarantor")
TXU (No. 8) PTY LTD (ABN 15 085 235 776) having an office at Level 33,
000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx (as a "Guarantor" and as an "Obligor")
TXU AUSTRALIA GROUP PTY LTD
(ABN 96 104 896 497) having an office at
Level 33, 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx and
EACH OF THE COMPANIES SPECIFIED IN SCHEDULE 1 ("Obligors") TXU CORP., a
corporation organised under the laws of the State of Texas, United States of
America and having an office at Energy Plaza, 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx
00000, Xxxxxx Xxxxxx xx Xxxxxxx ("TXU")
and TXU AUSTRALIA HOLDINGS (AGP) PTY LTD (ABN
16 086 014 931) having an office at Level 33,
000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx, XXX
XXXXXXXXX (LP) NO. 1 LIMITED (ARBN 086 406
733), a company incorporated under the laws of
England and Wales and having its registered
office at Kempson House, Camomile Street,
London EC3A 7AN, 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
Kempson House, Camomile Street, London EC3A
7AN and TXU AUSTRALIA PTY LTD (ACN 071 611
017) having an office at Level 33, 000 Xxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx ("as "Junior
Creditors")
EACH OF THE FINANCIAL INSTITUTIONS SPECIFIED IN SCHEDULE 2 ("Financiers")
EACH OF THE FINANCIAL INSTITUTIONS SPECIFIED IN SCHEDULE 3 ("Hedge
Counterparties") AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
(ABN 11 005 357 522) having an office at Level 12, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx (in its capacity as facility agent under the Loan Note
Subscription Agreement) ("Syndicated Facilities Agent") ANZ FIDUCIARY SERVICES
PTY LTD (ABN 91 100 709 493) having an office at Level 12, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx, 0000 ("Trustee")
2
-------------------------------------------------------------------------------
12 Interpretation
12.1 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 13 ("Change in Creditors").
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 Partnership (as borrowers) as
amended by a deed dated on or about 22 February
2000.
Amending Deed means the Amendment and
Restatement Deed dated on or about 26 February
2004 between, amongst others, the Borrower, the
Obligors, TXU Corp., the Partnership, the
Senior Creditors specified in it, the
Syndicated Facilities Agent, the Trustee and
National Australia Bank Limited.
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.
Asset includes all assets, including, for
the avoidance of doubt, any contract and other
intangible asset and the Torrens Island Power
Station and the Master Hedge Agreement.
Attorney means an attorney appointed by the
Trustee under clause 3.34 ("Delegation by
Trustee").
Australian Accounting Standards means the
accounting standards within the meaning of the
Corporations Act 2001 (C'th) and, where not
inconsistent with those accounting standards
and the Corporations Act 2001 (C'th), 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:
3
-------------------------------------------------------------------------------
(a) in the case of a Creditor (other than any Obligor or TXU), a director,
secretary or an officer whose title contains the word "director", "chief",
"head", "manager", "executive", "counsel", "president" or any agent or attorney
of the Creditor, or a person performing the functions of any of them; and
(b) in the case of an Obligor or TXU, 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.
Xxxx has the meaning it has in the Bills of
Exchange Act 1909 (C'th) and a reference to the
drawing, acceptance or endorsement of, or other
dealing with, a Bill 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 30 June and 31
December in each year commencing on
31 December 2003.
Calculation Period means, in relation to any
Calculation Date, the 12 month period ending on
that Calculation Date.
Completion means, in relation to a project
or development, the point in time at which the
completion tests relating to that project or
development have been satisfied in accordance
with their terms (as varied by agreement
between the parties).
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 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 the Debt Refinance Date) 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;
(iii) the value of the aggregate net assets of all Project Property and Project
Vehicles owned by Restricted Subsidiaries as derived from the financial
statements delivered under clause 6.1(g)(iii);
4
-------------------------------------------------------------------------------
(iv) the value of the net assets of all Unrestricted Subsidiaries as derived
from the financial statements delivered under clauses 6.1(g)(i) and (ii);
(b) plus the aggregate of Qualifying Subordinated Debt incurred by the TXUA
Parent and the Restricted Subsidiaries.
Consolidated Senior Debt means at any time
the sum of:
(a) the total Amount Owing to the Senior Creditors including any capital
accretions to CPI linked or indexed bonds and CPI swaps calculated on an
accruals basis at the relevant time; and
(b) the aggregate outstanding principal amount of all other Indebtedness of the
Borrower and Permitted Indebtedness of the TXUA Parent and its Restricted
Subsidiaries on a consolidated basis which is not Junior Debt; but excluding:
(i) any bank guarantee, which has been provided to NEMMCO or VENCorp which has
not been drawn; and
(ii) any Non-Recourse Debt.
For the avoidance of doubt and to ensure
there is no double counting, if any Amount
Owing or Indebtedness referred to in
paragraphs (a) or (b) is guaranteed, the
Indebtedness under the guarantee is not
included in this definition in addition to
the Amount Owing or Indebtedness.
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 or whilst the liability is being 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 Act 2001 (C'th).
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 and legal counsel.
CPI means a consumer price index or other
general index of prices and includes the
"Weighted Average of the Eight Capital Cities:
All-Groups Index" as maintained and published
quarterly by the Australian Bureau of
Statistics.
5
-------------------------------------------------------------------------------
CPI linked or indexed bond means
Indebtedness (other than a Derivatives
Transaction), payments in relation to which are
calculated or vary by reference to CPI.
CPI swap means a Derivatives Transaction,
the payments in relation to which are
calculated or vary by reference to CPI.
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 Refinance Date means the date notified
as the Debt Refinance Date by the Trustee under
clause 1.1 of the Amending Deed.
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 Bill, debenture, bond, note or other security;
(b) any discount in respect of any receipts or receivables which have been sold
by the TXUA Parent or any of its Restricted Subsidiaries 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 and any interest component on any CPI li indexed bond
facility or any CPI swap;
(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 TXUA
Parent or any of its Restricted Subsidiaries is a party;
(g) Interest, premiums, fees, break costs and any other amounts paid, payable or
incurred by the TXUA Parent or any of its Restricted Subsidiaries under any
Derivative Transaction less Interest, premiums, fees and any other amounts paid,
payable or incurred to the TXUA Parent or any of its Restricted Subsidiaries 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 TXUA Parent or any of its
Restricted Subsidiaries in that Calculation Period.
Deed of Release means a deed in or
substantially in the form of
schedule 8.
Deed of Subordination means a deed in or
substantially in the form of schedule 6.
Deed Poll means any deed poll of whatever
name that constitutes Loan Notes under any
Senior Finance Document.
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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 Act) 2001 (C'th); 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.
Directive means:
(a) a law or treaty; or
(b) an official directive, request, guideline or policy (wether or not having
the force of law) with which responsible financiers generally comply in carrying
on their business.
Distribution Licence means, as the context may
require:
(a) the distribution licence issued by ORG pursuant to the Gas Industry Act 1994
with effect from 11 December 1997, as amended and transferred to TXU Networks
(Gas);
(b) the distribution licence issued to TXU Electricity by ORG pursuant to the
Electricity Industry Act 1993 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 means a date on which any
financial accommodation is provided under any
Senior Finance Document.
Drawdown Notice means a notice under which
financial accommodation is requested under 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 Act 1994, the Electricity
Industry Act 1993 or otherwise) in, over,
appurtenant to or affecting any real property.
EBITDA means, in respect of any Calculation
Period, the earnings of the TXUA Parent and its
Restricted Subsidiaries (including the proceeds
of any claim under a business interruption
insurance policy and any interest earnings but
excluding any earnings from any Project
Activities (other than any actual earnings
based cash payment from any Unrestricted
Subsidiary to a Restricted Subsidiary)) on a
consolidated basis and before:
(a) significant items including, without limitation, sale proceeds from the
disposal of assets and costs arising on the termination of any Derivative
Transaction but excluding for the avoidance of doubt gains or losses arising
from energy trading;
(b) Debt Service;
(c) income tax; and
(d) depreciation and amortisation.
7
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Economic Interest means any direct or (through
interposed persons or otherwise) indirect
interest, and includes Equities in a person or
contractual or other legally binding relations
with a person under a participation or revenue
or profit sharing agreement in connection with
a project or development.
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 7.2 ("Consequences of default") or a demand for payment under a
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
(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.
Equity means any stock, share, unit or other
equity interest.
ESC means the Essential Services Commission
established under the Essential Services
Commission Act 2001 (Vic).
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
8
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(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 7 ("Events of Default").
Finance Document means any Senior Finance
Document, any Junior Finance Document, any
other document which an Obligor and the Trustee
agree in writing is to be a Finance Document
and any other instrument connected with any of
them.
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 Act 2001 (C'th) (in the case of a
body corporate incorporated in Australia) and
any other information necessary to give a true
and fair view.
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 or has become a Senior Creditor in
accordance with clause 13 ("Change in
Creditors") on or after the date of the
Amending Deed, but does not include a Senior
Creditor in its capacity as the Trustee, an
agent for Financiers, a Hedge Counterparty or a
Transactional Bank.
Fixed Date means the day by which the
Trustee determines that it has been instructed
to give a notice under clause 7.2(a).
General Partner means TXU Australia Holdings
(AGP) Pty Ltd (ABN 16 086 014 931).
Generation Asset means any asset utilised or
employed in the generation of electricity.
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.
9
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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 Essential Services
Commission).
Group means the TXUA Parent and its
Subsidiaries.
GST has the meaning given to it in section
195-1 of the A New Tax System (Goods and
Services Tax) Act 1999.
Guaranteed Money has the meaning given to
that term in the Guarantees.
Guarantees means each of:
(a) the Original Guarantee; and
(b) the New Guarantee.
Guarantor means, as the context requires, each
of Holdco, the Partnership and TXU8.
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 Holdco, TXU
Electricity or the Partnership and any Hedge
Counterparty or other financial institution
from time to time.
Hedge Counterparty means each identified
financial institution specified in schedule 3
and any person (other than the Partnership,
Holdco or TXU Electricity) who is a party to a
Hedge Agreement and who becomes or has become a
Senior Creditor in accordance with clause 13
("Change in Creditors") of this deed.
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 mark 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
Partnership, Holdco or TXU
Electricity (as the case may be) to
the Hedge Counterparty and a negative
number if it represents a liability
of the Hedge Counterparty to the
Partnership, Holdco or TXU
Electricity (as the case may be).
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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 Partnership,
Holdco or TXU Electricity (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 Partnership, Holdco or TXU
Electricity (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 Partnership, Holdco and
TXU Electricity 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 Partnership, Holdco or TXU
Electricity or a receiver or liquidator appointed to the Partnership, Holdco or
TXU Electricity or any other person of a payment or discharge in respect of any
of 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.
Hedging Policy means the hedging policy of the
Group under which the Borrower will notionally
allocate interest-bearing Indebtedness of the
Group against either the assets used in the
Networks Business or against other assets ,
subject to the following provisos:
(a) at least 50% of Interest on Indebtedness allocated to Networks Business
assets shall be hedged to correspond with the periodic Networks Business tariff
reviews (whereby interest rates applied to the tariffs are currently reset every
5 years); and
(b) at least 50% of Interest on Indebtedness allocated to other assets shall be
fixed for a period of at least three years.
Holdco means TXU Australia Holdings Pty Ltd
(ABN 97 086 006 859).
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 22 February 2000.
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:
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(a) Bill, bond, debenture, note or similar instrument including any accretion to
principal (calculated on an accruals basis) under the terms of any CPI linked
indexed bonds;
(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 6.6(o)
("Negative undertakings - leases"), 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 including any accretion to principal under the terms
of any CPI swaps; 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:
(a) 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
(b) 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 Asset means any asset which
forms part of the Infrastructure.
12
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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
(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:
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(a) the General Partner and each of the Limited Partners;
(b) TXUA;
(c) TXU; and
(d) any other person who is owed Qualifying Subordinated Debt or Subordinated
Guarantee Debt.
Junior Debt means each of:
(a) the TXU Subordinated Loan;
(b) the Subordinated Convertible Loan;
(c) the Intercompany Loan Debt of TXU8 under the TXUA-TXU8 Loan Agreement;
(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 Document means the TXU
Subordinated Loan, the Subordinated Convertible
Loan, 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.
Licence means the:
(a) distribution licence issued pursuant to the Gas Industry Act 1994 (Vic) with
effect from 11 December 1997, as amended and transferred to TXU Networks (Gas);
(b) distribution licence issued to TXU Electricity pursuant to the Electricity
Industry Act 1993 (Vic) in effect from 3 October 1994, as amended;
(c) gas retail licence issued pursuant to the Gas Industry Act 1994 (Vic) with
effect from 11 December 1997, as amended and transferred to TXU Pty Ltd;
(d) electricity retail licence issued to TXU Electricity pursuant to the
Electricity Industry Act 1993 (Vic) with effect from 3 October 1994, as amended;
(e) generation licence issued to TXU (South Australia) Pty Ltd in relation to
the Torrens Island Power Station pursuant to the Electricity Act 1996 (SA); and
(f) any other Licence granted to any Obligor to replace or substitute any of the
above Licences.
Limited Partners means each of TXU Australia
(LP) No. 1 Limited (ARBN 086 406 733) and
TXU Australia (LP) No. 2 Limited
(ARBN 086 406 724).
Limited Recourse Debt means Project Debt
incurred by a member of the Group which, as a
matter of contract, binding all relevant
parties at the time it is incurred and at all
times before Completion:
14
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(a) will automatically become Non-Recourse Debt upon Completion; or
(b) the member of the Group will cease to be liable to pay or repay upon
Completion (and no other member of the Group becomes so liable unless the debt
is Non-Recourse Debt),
in either case, without the need for any
further act of or by any party.
If, for any reason:
(c) at any time before Completion, the condition described in (a) or (b) (as the
case may be) ceases to apply; or
(d) at Completion, the debt does not become Non-Recourse Debt, or a member of
the Group remains liable to pay or repay the debt (as the case may be); or
(e) at any time after Completion, the debt either ceases to be Non-Recourse Debt
or a member of the Group becomes liable to pay it (as the case may be); or
(f) despite Completion not having occurred within the terms of the relevant
document, the relevant party or parties either deem Completion to have occurred
or waive the requirement to satisfy the terms of the relevant document regarding
the concept of Completion,
then the debt will automatically at that time
cease to be "Limited Recourse Debt".
Loan Note has the meaning given to that term in
any Senior Finance Document.
Loan Note Subscription Agreement means the loan
note subscription agreement between the
Borrower, the Financiers (as defined in that
agreement) and the Syndicated Facilities Agent
dated on or about the date of the Amending
Deed.
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.
Master Hedge Agreement means the master hedge
agreement between TXU Electricity and AES
Transpower Holdings Pty Ltd dated 6 May 1999.
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
(b) an Obligor's ability to observe its obligations under any Finance Document
or an Intercompany Loan Agreement; or
(c) the rights of a Senior Creditor under a Senior Finance Document.
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Material Operating Subsidiary means each
Subsidiary of the TXUA Parent (other than the
Borrower) which, has not been designated as an
Unrestricted Subsidiary and:
(a) contributes or in the current or following Financial Year is likely to
contribute more than 10 % of the EBITDA of the TXUA Parent and its Restricted
Subsidiaries; or
(b) the book value of the assets of which are more than $100,000,000 provided
that the value of any shares held by any Restricted Subsidiary in any other
Subsidiary shall not be included for the purposes of this definition,
unless the Subsidiary has been released from
its obligations under this deed in accordance
with this deed. For the avoidance of doubt as
at the Debt Refinance Date each of TXU
Electricity, TXU Pty Ltd, TXU Networks (Gas),
TXU Gas Storage and TXU (South Australia) Pty
Ltd is a Material Operating Subsidiary.
MSO Rules has the meaning given in the Gas
Industry Act 1994.
National Electricity Code has the meaning
given to the word "Code" in the National
Electricity Law.
NEMMCO means the National Electricity Market
Management Company Limited
(ABN 94 072 010 327).
Networks Business means that part of the Core
Business which involves the transmission and
distribution of energy products by utilisation
of the Infrastructure and ancillary assets.
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 Guarantee means the Guarantee and
Indemnity dated 11 December 2003, made between
the Partnership, TXU8 and National Australia
Bank Limited, the benefit of which was or will
be assigned to the Trustee in accordance with
the Amending Deed.
New Obligor Accession Deed means a deed in
or substantially in the form of schedule 7.
Non-Recourse Debt means any Project Debt if,
and for so long as:
(a) the person to whom the Project Debt is owed (or any agent or trustee on that
person's behalf) does not have recourse (whether by way of execution, set-off or
otherwise) to any member of the Group or its assets for the payment or repayment
of the Project Debt other than to assets which the Security Interest ("Project
Securities") securing that Project Debt are permitted to extend to under item
(g) of the definition of Permitted Security Interest (that person, and any agent
or trustee on that person's behalf, being a "Non-Recourse Finance Party"); and
(b) the Non-Recourse Finance Party may not seek to wind up or place into
administration, or pursue or make a claim in the winding up or administration
of, any member of the Group to recover or to be repaid that Project Debt; and
16
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(c) the Non-Recourse Finance Party cannot obtain specific performance or a
similar remedy with respect to any obligation of a member of the Group to pay or
repay that Project Debt; and
(d) the Non-Recourse Finance Party and any receiver, receiver and manager, agent
or attorney appointed under the Project Securities, may not incur a liability on
behalf of, or for the account of, a member of the Group which liability itself
is not subject to the above paragraphs as if references to Project Debt in those
paragraphs included that liability.
It includes any Project Debt if:
(e) all or substantially all of the assets of the only Group member or members
to which the Non-Recourse Finance Party may have recourse for the payment or
repayment of that Project Debt, comprises assets encumbered by Project
Securities; and
(f) where the Non-Recourse Finance Party may have recourse to assets of other
Group members which are subject to Project Securities but which do not fit the
description in (e), such Project Debt would otherwise comprise Non-Recourse Debt
under paragraphs (a) to (d) inclusive above.
Obligor means:
(a) the TXUA Parent;
(b) the Borrower, the Partnership and each of the TXUA Parent's other Restricted
Subsidiaries (which as at the date of the Amending Deed are listed 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.
For the avoidance of doubt, the parties agree
that TXU is not an Obligor.
ORG means the Office of the Regulator-General
established under the Office
of the Regulator-General Act 1994 or its
equivalent established in any jurisdiction
other than Victoria.
Original Guarantee means the Guarantee and
Indemnity dated 24 February 1999 made between
the Partnership, Holdco, TXU8 and TXU9 in
favour of National Australia Bank Limited as
amended by a deed and an agreement each dated
22 February 2000, the benefit of which was or
will be assigned to the Trustee in accordance
with the Amending Deed.
Partnership means the TXU Australia Holdings
(Partnership) Limited Partnership, comprised of
the General Partner and the Limited Partners.
Partnership Deed means the deed dated 27
January 1999 between the General Partner and
the Limited Partners establishing the
Partnership, as amended by deeds dated 23
February 1999, 16 May 2000 and 31 May 2000.
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;
17
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(b) the disposal of assets in exchange for other assets of comparable value and
utility;
(c) any disposal of an asset provided that the aggregate value of all assets
disposed of by the TXUA Parent or any of its Restricted Subsidiaries in any
Financial Year (excluding disposals permitted under any other paragraph of this
definition) does not exceed 10% of the total assets of the TXUA Parent and its
Restricted Subsidiaries (as measured by reference to the audited consolidated
Financial Statements for the previous Financial Year);
(d) any disposal of an asset which would not comply with paragraph (c) of this
definition, provided that the aggregate value of all such assets disposed of by
the TXUA Parent and its Restricted Subsidiaries in any Financial Year (excluding
disposals permitted under any other paragraph of this definition) does not
exceed 20% of the total assets of the TXUA Parent and its Restricted
Subsidiaries (as measured by reference to the audited consolidated Financial
Statements for the previous Financial Year); and provided that the proceeds of
disposal are:
(i) used to repay all or part of the Amount Owing to the Senior Creditors; or
(ii) otherwise utilised in the Core Business, and such proceeds are not
available to make distributions to shareholders of the TXUA Parent or payments
on Qualifying Subordinated Debt;
(e) disposals and acquisitions within the Group between Obligors;
(f) disposals of assets in the ordinary course of business.
Permitted Indebtedness means in relation to the
Restricted Subsidiaries (other than the Borrower):
(a) any Indebtedness incurred by the Guarantors under the Guarantees 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 the Partnership under or in relation to:
(i) the Partnership MTNs, being the:
(B) $275 million of credit wrapped floating rate
medium term notes maturing on September 2007; and
(C) $200 million of credit wrapped fixed rate
medium term notes maturing on September 2005;
(i) any commercial paper issued by the Partnership under the commercial paper
programme existing as at the date of the Amending Deed provided all such
commercial paper is fully repaid by 31 December 2004;
(ii) the MBIA Reimbursement Agreement dated 11 September 2000 between the
Partnership, the Borrower, TXU8 and MBIA Insurance Corporation;
18
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(iii) the Partnership 144A Notes being the notes issued by the Partnership under
the Indenture dated 15 August 2000 between the Partnership and the Bank of New
York, as trustee, comprising:
(A) US$92,250,000 of 6.75% Senior Notes due 2006;
and
(B) US$60,000,000 of 7.25% Senior Notes due 2016;
(iv)the Subordinated Loan Agreement dated 27 March 2002 between the Partnership
and TXU Corp.;
(v) the Subordinated Convertible Loan Agreement dated 13 March 2003 between the
Partnership (as borrower) and the Limited Partners and the General Partner (as
lenders);
(vi) any Hedge Agreement in place solely to manage the interest rate and
currency exposure of the Partnership under the Indebtedness of the Partnership
referred to in this paragraph (f); or
(b) any Indebtedness of TXU Electricity under:
(i) the TXU Electricity 144A Notes being the notes issued by TXU Electricity
under the Indenture dated 1 December 1996 between TXU Electricity and the Bank
of New York, as trustee, and which are still outstanding, comprising:
(A) US$157,750,000 of 6.75%
Senior Notes due 2006; and
(B) US$40,050,000 of 7.25%
Senior Notes due 2016; or
(ii) Hedge Agreements in place solely to manage the interest rate and currency
exposure of TXU Electricity under the TXU Electricity 144A Notes; or
(c) any Indebtedness under any equipment lease, provided there is no breach of
clause 6.6(o) ("Negative undertakings - leases") of this deed; or
(d) any Indebtedness incurred in the ordinary course of business by a TXU8
Borrower in favour of another TXU8 Borrower; or
(e) 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
(f) any Indebtedness by a member of the Group arising from a Project Debt other
than any Indebtedness used to refinance any assets which as at the date of the
Amending Deed are owned by the TXUA Parent or its Restricted Subsidiaries; or
(g) any other Indebtedness approved in writing by the Trustee (acting upon the
instructions of the Majority of Senior Creditors); or
(h) any guarantee and/or indemnity issued by the Partnership or any Restricted
Subsidiary to a third party in relation to the obligations of Retail Energy
Market Company Limited (ABN 15 103 318 556) provided that the aggregate
liability under such guarantees and/or indemnities do not exceed $20,000,000.00.
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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 without penalty or which are Contested Taxes;
(b) any Security Interest imposed by statue or arising by operation of law in
the ordinary course of business which does not secure Indebtedness;
(c) 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;
(d) any Security Interest, or any netting or set-off arrangement, in respect of
deposits of money or property, by way of security:
(i) for the performance of any statutory obligation arising in the ordinary
course of business; or
(ii) in the ordinary course of the Group's banking arrangements for the purpose
of netting debit or credit balances;
(e) this deed;
(f) any right of set off arising in favour of NEMMCO or VENCorp over cash
deposits, bank guarantees or similar instruments lodged by any Obligor;
(g) any Security Interest to secure the payment or repayment of a Limited
Recourse Debt or a Non-Recourse Debt with respect to a project or development,
provided that such a Security Interest does not extend to any assets of a Group
member other than:
(i) a Group member's Project Property in respect of the project or development;
(ii) all or any part of the Economic Interest of a member of the Group in a
Project Vehicle and the rights and proceeds derived from that Economic Interest
if:
(A) the assets of the Project Vehicle
form part of or are directly
connected with the project or
development;
(B) those assets comprise all or
substantially all of the assets of
the Project Vehicle; and
(C) where that Economic Interest of the
member of the Group which has
created or proposed to
create the Security Interest is an
indirect Economic Interest held
through interposed persons, the
Economic Interest of each of those
interposed persons in the Project
Vehicle comprises all or
substantially all of the assets of
that person;
(iii) any other assets of the Group member referred to in paragraph (g)(i) or
(ii) if that other asset has a market value of less than A$30,000,000; or
(iv) any combination of the assets, Economic Interest, rights and proceeds
referred to in (g)(ii)(A), (B) or (C) above;
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(h) any collateralisation or transfer of assets, or agreement to do the same by
way of credit support for the obligations of an Obligor in relation to a margin
call component of a Derivative Transaction;
(i) any other Security Interest to secure the performance of tenders, bids,
leases, statutory obligations, surety and appeal bonds, Governmental Agency
contracts, performance and return-of money bonds and other similar obligations
incurred in the ordinary course of business (except as security for
Indebtedness);
(j) any Security Interest securing amounts in connection with workers'
compensation, unemployment insurance and other types of social security;
(k) any Security Interest on or over all or any part of the interest of any
member of the Group in any joint venture to secure that member's obligations and
liabilities to its co-venturers and/or the manager or operator of the joint
venture or their agent, including the revenues and assets derived by the member
from, or employed by the member in, the joint venture, in favour of its
co-venturers;
(l) any Security Interest to secure Indebtedness in which a member of the Group
has paid money or deposited securities with a trustee or depository pursuant to
a defeasance arrangement relating to any Indebtedness comprising capital markets
instruments issued by any member of the Group; and
(m) 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.
Project Activity means:
(a) the acquisition, development, construction, extension, expansion or
improvement of any asset in which no member of the Group has any Economic
Interest as at the Debt Refinance Date; or
(b) the development, construction, extension, expansion or improvement of any
asset in which a member of the Group has, at the date of the Amending Deed, an
Economic Interest but in respect of which none of those activities have
commenced as at the Debt Refinance Date.
Project Debt means, with respect to a project or development:
(a) Indebtedness comprising all or a substantial part of the price and/or cost
of Project Activities in connection with a project or a development; or
(b) Indebtedness incurred:
(i) before or at the time of carrying out of Project Activities; or
(ii) within 270 days of completion of the last of the Project Activities in
connection with the project or development,
solely for the purpose of financing
or refinancing all or a substantial
part of the price and/or cost of the
Project Activities in connection with
the project or development; or
(c) any Indebtedness incurred solely to refinance any of the above Indebtedness
or incurred under any successive refinancing; or
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(d) any liabilities under Derivative Transactions entered into in connection
with any of the above Indebtedness or any Project Activity; or
(e) interest or amounts in the nature of interest, charges, fees, costs of any
nature (including break costs or costs arising from changes in law), duties,
expenses, currency indemnities, withholding taxes, indirect taxes and other
similar indebtedness (however described) which, in any case, is or are incurred
or payable in connection with any of the above; or
(f) any guarantee or indemnity securing payment or repayment of any of the above
amounts (but not any other Indebtedness),
but does not for the avoidance of doubt
include, (without the consent of the Trustee,
acting upon the instructions of the Majority
of Senior Creditors) any Indebtedness which is
used to refinance any assets which as at the
date of the Amending Deed are owned by the
TXUA Parent or its Restricted Subsidiaries.
Project Property means a Group member's assets used solely or predominantly in,
or generated by, any Project Activities for a project or development including:
(a) assets forming part of or connected with or derived from that project or
development; and
(b) proceeds derived from other Project Property relating to that project or
development.
Project Vehicle means an entity which is established for the purposes
of, and confines its business operations solely to, owning or producing Project
Property, carrying out Project Activities and incurring Project Debt.
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 Borrower
or of the TXUA Parent 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
(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.
Recovered Money means the aggregate amount
received in accordance with clause 8
("Distribution of Recovered Money") which has
not been distributed under this deed.
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Recovered Money Distribution Date means a
day on which Recovered Money is available for
distribution in accordance with clause 8
("Distribution of Recovered Money").
Related Entity has the meaning it has in the
Corporations Act 2001 (C'th).
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 ("Funds before acting").
Relevant Senior Debt means, in respect of a
Senior Creditor, the Senior Debt in respect of
that Senior Creditor.
Required Restricted Subsidiary means any
Subsidiary of the TXUA Parent that is from time
to time designated as or deemed to be a
"Required Restricted Subsidiary" pursuant to
clause 6.5 ("Restricted and Unrestricted
Subsidiary Undertakings").
Restricted Subsidiary means any Subsidiary
of the TXUA Parent that is designated from time
to time as, or deemed to be, a "Restricted
Subsidiary" pursuant to clause 6.5 ("Restricted
and Unrestricted Subsidiary Undertakings")and
includes, for the avoidance of doubt, any
Required Restricted Subsidiary.
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 Syndicated Facilities Agent;
(c) each Financier;
(d) each Hedge Counterparty;
(e) each Transactional Bank; and
(f) any other person who has provided Indebtedness (which does not constitute
Subordinated Indebtedness) to the TXUA Parent or any of its Restricted
Subsidiaries 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 13 ("Change in Creditors").
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 Amending Deed;
23
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(c) the Loan Note Subscription Agreement;
(d) each Deed Poll;
(e) the Loan Notes;
(f) the Working Capital Facility Agreement;
(g) each Transactional Banking Agreement;
(h) each Guarantee;
(i) each Hedge Agreement to which a Hedge Counterparty is a party;
(j) any document nominated as a Senior Finance Document in any New Creditor
Accession Deed; and
(k) 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 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 Convertible Loan means all
Indebtedness of the
Partnership to the General Partner and the
Limited Partners under the Subordinated
Convertible Loan Agreement between TXU
Australia (LP) No. 1 Limited, TXU Australia
(LP) No.2 Limited, TXU Australia Holdings (AGP)
Pty Ltd (as lenders) and the Partnership (as
borrower), dated 13 March 2003.
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,
24
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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 Act 2001 (C'th); or
(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 the Partnership, a corporation which is owned or controlled
by the Partnership,
and for the purposes of the Transaction
Documents, the Partnership will be deemed to be
a Subsidiary of the TXUA Parent and a "body
corporate" for the purposes of part 1.2
division 6 of the Corporations Act 2001 (C'th).
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.
Syndicated Facilities Agent means Australia
and New Zealand Banking Group Limited (ABN 11
005 357 522) or any successor agent appointed
by the relevant Financiers under the Loan Note
Subscription Agreement from time to time.
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.
Torrens Island Power Station means the
Torrens Island electricity generating power
stations A and B located at Torrens Island,
South Australia and leased by TXU (South
Australia) Pty Ltd under a lease from a South
Australian Governmental Agency.
Total Capitalisation means, in relation to the
TXUA Parent and its Restricted Subsidiaries and
with respect to any Calculation Period ending
on a Calculation Date, the aggregate of
Consolidated Net Worth and Consolidated Senior
Debt.
Total Group Assets means the aggregate of all
of the non-current assets (less receivables,
deferred expenses, prepayments and future
income tax benefits but including positive
goodwill) of the TXUA Parent and its Restricted
Subsidiaries (excluding Project Property and
any Economic Interest in any Project Vehicle)
on a consolidated basis.
25
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Total Network Assets means the aggregate of all
of the non-current assets (less receivables,
deferred expenses, prepayments and future
income tax benefits but including positive
goodwill) of the TXUA Parent and its Restricted
Subsidiaries (excluding Project Property and
any Economic Interest in any Project Vehicle)
on a consolidated basis which are used to carry
on the Networks Business.
Transaction Documents means each Finance
Document, the Intercompany Loan Agreements, the
Partnership Deed, 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 provides 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
(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.
TXU means TXU Corp., a corporation organised
under the laws of the State of Texas, United
States of America and having an office at
Energy Plaza, 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx
00000, Xxxxxx Xxxxxx xx Xxxxxxx.
TXUA means TXU Australia Pty Ltd (ACN 071
611 017).
TXUA Parent means TXU Australia Group Pty
Ltd (ABN 96 104 896 497).
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 22 February 2000.
26
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TXU Gas Storage means TXU Gas Storage Pty
Ltd (ABN 71 079 089 311) (formerly known as
Western Underground Gas Storage Pty Ltd).
TXU8 means TXU (No. 8) Pty Ltd
(ACN 085 235 776).
TXU8 Borrower means each Obligor other than
TXUA Parent, the Partnership, the Borrower and
TXUA.
TXU8 Loan Agreement means the agreement
dated on or about 22 February 2000 between TXU8
(as lender) and the TXU8 Borrowers (as
borrowers).
TXU9 means TXU (No. 9) Pty Ltd
(ACN 085 235 801).
TXU Electricity means TXU Electricity Limited
(ACN 064 651 118) (formerly known as Eastern
Energy Limited).
TXU Electricity 144a Notes means the notes
issued by TXU Electricity under the Indenture
dated 1 December 1996 between TXU Electricity
and The Bank of New York, as trustee, and which
are still outstanding comprising US$157,750,000
6.75% Senior Notes due 2006 and US$40,050,000
7.25% Senior Notes due 2016.
TXU Networks (Gas) means TXU Networks (Gas)
Pty Ltd (ABN 43 086 015 036) (formerly known as
Westar Pty Ltd).
TXU Pty Ltd means TXU Pty Ltd (ABN 99 086
014 968) (formerly known as Kinetik
Energy Pty Ltd).
TXU Subordinated Loan means all Indebtedness
of the Partnership to TXU under the
Subordinated Loan Agreement between TXU (as
lender) and the Partnership (as borrower) dated
27 March 2002.
TXU Torrens Island means TXU Torrens Island Pty
Ltd (ABN 67 081 074 197)
Unrestricted Subsidiary means any Subsidiary
of the TXUA Parent that is designated as or
deemed from time to time to be an "Unrestricted
Subsidiary" pursuant to clause 6.5 ("Restricted
and Unrestricted Subsidiary Undertakings").
VENCorp means Victoria Energy Networks
Corporation, a statutory authority incorporated
under the Gas Industry Act 2001 (Vic).
Working Capital Facility Agreement means the
agreement of that name between the Borrower,
Australia and New Zealand Banking Group Limited
and Commonwealth Bank of Australia dated on or
about the date of the Amending Deed.
12.2 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;
(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;
27
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(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.
12.3 Headings are inserted for convenience and do not affect the
interpretation of this deed.
12.4 If a Senior Finance Document requires or permits any act, matter or
thing to be done by the Partnership, 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 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.
28
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13 Declaration of trust
13.1 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.
13.2 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.
13.3 The perpetuity period applicable to the trust established under this
deed is the period of 80 years commencing on the date of this deed.
13.4 The trust established under this deed is to be known as the
TXU Australia Holdings Trust.
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14 Duties, Powers and Rights of Trustee
Authority of Trustee
14.1 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
14.2 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.
To the extent permissible by law, each Senior
Creditor acknowledges that the Trustee has no
obligations, duties or responsibilities except
those expressly set out in the Senior Finance
Documents.
Senior Creditors bound
14.3 Without limiting the liability of the Trustee contemplated by
clause 3.19 ("Exoneration of Trustee"), 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 ("Duties, Powers and Rights of
Trustee") 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
14.4 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
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(c) has a fiduciary duty to, or other fiduciary relationship with,
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
14.5 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 ("Matters
requiring instructions from all Senior Creditors"),
3.7 ("Matters requiring instructions from a Majority
of Senior Creditors") or 3.8 ("Matters requiring
instructions from relevant Senior Creditors") (as the
case may be); and
(b) take the action contemplated (including, without
limitation, Enforcement Action) if, and only if, it
receives clear instructions to do so from:
(i) all of the Senior Creditors (but in the case of a
Senior Creditor that is a Financier, only a Financier
to whom there is any Amount Owing, or who has a
commitment to provide Indebtedness (even if subject
to conditions) under any Senior Finance Document, at
the relevant time) - on matters listed in clause 3.6
("Matters requiring instructions from all Senior
Creditors");
(ii) a Majority of Senior Creditors - on matters listed in clause
3.7 ("Matters requiring instructions from a Majority of
Senior Creditors");
(iii) the relevant Senior Creditors - on the matters listed in
clause 3.8 ("Matters requiring instructions from relevant
Senior Creditors"); or
(iv) either all, or a Majority of Senior Creditors - on
matters which the express terms of this deed or the
Amending 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
14.6 The following matters require instructions from all Senior Creditors
(but in the case of a Senior Creditor that is a Financier, only a
Financier to whom there is any Amount Owing, or who has a commitment to
provide Indebtedness (even if subject to conditions) under any Senior
Finance Document, at the relevant time):
(a) a change to clauses 4, 6.6(a), 6.6(b), 6.6(c), 6.6(m), 6.6(n),
6.6(r), 6.7 or 7.2 of this deed and to any defined terms
used in those clauses;
(b) a discharge or termination of a Guarantee or a release of a
Guarantor from a Guarantee or of the Borrower, the
Partnership, TXU8 or any Material Operating Subsidiary (unless
the Material Operating Subsidiary is being disposed of under a
disposal of assets permitted by this deed and the Material
Operating Subsidiary does not satisfy paragraph (a) of the
definition of "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 8 ("Distribution of Received Money");
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(f) a release of any property mortgaged or charged under a
Security Interest granted to the Trustee;
(g) 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; and
(h) a change to the annexures to the Amending Deed which affects
or will affect any matter contemplated by this clause 3.6 or a
change to the Amending Deed (other than the annexures).
Matters requiring instructions from a Majority of Senior Creditors
14.7 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 ("Matters requiring
instructions from all Senior Creditors");
(b) the exercise of the Trustee's rights in its capacity as
trustee in connection with clause 7 ("Events of Default")
(except clause 7.1(a) and clause 7.2(b) in the circumstances
set out in clause 3.8 ("Matters requiring instructions from
relevant Senior Creditors"));
(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 ("Matters requiring instructions from
relevant Senior Creditors"));
(d) the waiver of any breach or other non-performance of
obligations (other than the obligations referred to in clause
. 3.8 ("Matters requiring instructions from relevant Senior
Creditors")) 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 Borrower, the
Partnership, TXU8 or an Unrestricted 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 (c) or (d) of the definition of "Permitted
Disposal" and does not contravene clauses 6.6(c)(i) or (ii)
("Negative undertakings - disposal of assets") and the Obligor
does not satisfy paragraphs (a) or (b) of the definition of
"Material Operating Subsidiary"; and
(g) a change to the Amending Deed which affects or will affect any
matter contemplated by this clause 3.7 (other than a change
requiring instructions from all Senior Creditors under clause
3.6 (h)).
Matters requiring instructions from relevant Senior Creditors
14.8
(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.
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(b) Any Senior Creditor which is a party to or has the
benefit of a Senior Finance Document or if there is
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, under clause 7.2(b) ("Consequences of
default")) and the Guarantee following an Event of
Default under clause 7.1(a) ("Events of default -
payment") in respect of a payment under that Senior
Finance Document.
(c)
(i) 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.
(ii) If clause 3.8 (c)(i) applies, the Trustee can rely on
the relevant agent or trustee as representing the
Senior Creditor and need not inquire into the agent's
or trustee's authority.
Overriding instructions
14.9 In relation to all matters other than those under clauses 3.6 ("Matters
requiring instructions from all Senior Creditors") and 3.8 ("Matters
requiring instructions from relevant Senior Creditors"), 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
14.10 Subject to clause 3.11 ("Trustee actions"), in any case where the
Trustee does not require instructions under clause 3.5 ("After
consultation and instructions") or does not receive instructions or
requests under clause 3.9 ("Overriding instructions"), 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
14.11 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 (based upon the information
which it has at the time) of the Senior Creditors taken as a
whole.
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Senior Creditor's instructions
14.12 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.
Whenever a Senior Creditor gives instructions
which are inconsistent with the instructions
of the Majority of Senior Creditors the Senior
Creditor consents to the Trustee acting in
accordance with the instructions of the
Majority of Senior Creditors despite the
Senior Creditor's instructions (unless it is a
matter requiring instructions from all Senior
Creditors under clause 3.6 ("Matters requiring
instructions from all Senior Creditors") or
relevant Senior Creditors under clause 3.8
("Matters requiring instructions from relevant
Senior Creditors") .
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.
The Trustee need not seek instructions from any
Senior Creditor that is a Financier and to whom
there is no Amount Owing and who has no
commitment (whether or not subject to
conditions) to provide Indebtedness under any
Senior Finance Document, in each case, at the
relevant time.
Trustee's obligations
14.13 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
("Matters requiring instructions from relevant
Senior Creditors"); and
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(ii) a copy of such notice to each Senior Creditor.
Trustee's awareness of certain events
14.14 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(l) ("General
undertakings - notify details of Event of Default or Potential
Event of Default"), stating that such an Event of Default or
Potential Event of Default has occurred.
Trustee may assume compliance
14.15 Until it becomes aware in accordance with clause 3.14 ("Trustee's
awareness of certain events"), 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 or investigate whether
that is, in fact, the case.
Limit on disclosure obligations
14.16 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
14.17 The Senior Creditors agree that the Trustee has no obligations, other
than those in clause 3.13 ("Trustee's obligations"),
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
14.18 Each Senior Creditor acknowledges for the benefit of the Trustee and
each of its Related Entities that the Senior Creditor:
(a) has entered into the Senior Finance Documents; and
(b) has made and will continue to make its own independent
investigation of the business, operations, financial condition
and affairs of each Obligor based on documents and information
which it considers appropriate and in this regard each Senior
Creditor acknowledges that the Trustee is not required to
inspect, or keep under review any property or books of any
Obligor; and
(c) has made and will continue to make its own appraisal of the
creditworthiness or status of affairs of each Obligor;
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(d) has made its own assessment and approval of the margin, fees
and other return to be obtained under the Senior Finance
Documents;
(e) has informed itself and will continue to inform itself as to
the performance or observance by any Obligor of its
obligations under the Senior Finance Documents; and
(f) will continue to make its own analysis and decisions (based
upon the documents and information) which seem appropriate at
the time, in taking or not taking any action under the Senior
Finance Documents,
without relying on the Trustee (in whatever
capacity) or any of its Related Entities or on
any other Senior Creditor or on any
representation made by any of them.
Exoneration of Trustee
14.19 Neither the Trustee nor any of its directors, officers, employees,
agents, attorneys (including an Attorney) or Related Entities is
responsible or liable to any other party to this deed:
(a) because an Obligor or another Senior Creditor fails to perform
its obligations under the Senior Finance Documents or another
Senior Creditor fails to provide instructions when requested
by the Trustee; or
(b) for the financial condition or solvency of an Obligor; or
(c) because any recital, statement, representation or warranty in
a Senior Finance Document is incorrect or misleading in any
respect; or
(d) for the effectiveness, genuineness, validity, enforceability,
admissibility in evidence or sufficiency of the Senior Finance
Documents or in any certificate or any document referred to in
or provided for in, or received by it, or delivered under or
in connection with the Senior Finance Documents; or
(e) for acting in accordance with the instructions of a Majority
of Senior Creditors or all the Senior Creditors, in accordance
with this deed, or in the absence of instructions in
accordance with clause 3.10 ("Without consultation or
instructions"), or from refraining from acting in accordance
with the instructions of a Majority of Senior Creditors or all
Senior Creditors, in accordance with this deed;
(f) for any loss or damage occurring as a result of the
exercising, failing to exercise or purporting to exercise any
right, power, authority, discretion or remedy of, or conferred
on, the Trustee under the Senior Finance Documents;
(g) if it acts upon any instruction purported to have been given
by a Majority of Senior Creditors or all Senior Creditors even
though it may subsequently be found that there was some defect
in the instruction or for any other reason the instruction was
not valid or binding upon those Senior Creditors it purports
to bind or upon the Trustee.
Without limiting this clause 3.19 ("Exoneration
of Trustee"), the Trustee is not responsible
nor liable to any other party to this deed for
anything done or not done in connection with
the Senior Finance Documents by the Trustee or
its directors, officers, employees, agents,
attorneys (including an Attorney) 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
directors, officers, employees, agents,
attorneys (including an Attorney), or Related
Entities.
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Failure by the Trustee to act due to lack of
instructions or lack of proper or clear
instructions from a Majority of Senior
Creditors or all Senior Creditors does not in
itself amount to fraud, gross negligence or
wilful misconduct of the Trustee.
Trustee in capacity of a Senior Creditor
14.20 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, obligations, powers and discretions under
the Senior Finance Documents as the other Financiers and Hedge
Counterparties; and
(b) may exercise those rights, powers and discretions and agrees
to observe those obligations independently from its role as
Trustee as if it were not the Trustee.
Trustee dealing in different capacities
14.21 The Trustee or a Related Entity 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,
despite any conflict of interest, as if it were
not the Trustee and without having to account
to the Senior Creditors for any income or other
benefit it derives in doing so.
The Senior Creditors release the Trustee or a
Related Entity from any obligation it might
otherwise have to them in relation to the
matters set out in this clause 3.21 ("Trustee
dealing in different capacities").
Notice of transfer
14.22 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 13 ("Change in Creditors").
Senior Creditor to pay over amounts received directly
14.23 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 7.2(a) ("Consequences of default") (but not clause 7.2(b)
("Consequences of default")) 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.
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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.
If the Senior Creditor is obliged to make a
payment under this clause 3.23, the Borrower
indemnifies the Senior Creditor against loss
suffered by the Senior Creditor if the
liability of the entity which made the payment
to the Senior Creditor is held to have been
discharged despite the operation of this
clause.
Pro-rata refunds
14.24 If a Senior Creditor who receives an amount referred to in clause 3.23
("Senior Creditor to pay over amounts received directly") 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
8 ("Distribution of Received Money") 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
14.25 Despite clause 3.23 ("Senior Creditor to pay over amounts received
directly"), where a Senior Creditor recovers an amount in legal
proceedings it has brought as permitted by clause 3.21 ("Restriction on
Senior Creditor's exercising rights"), 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 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 3.21 ("Restriction on Senior Creditor's
exercising rights"), 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
14.26 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.
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Senior Creditors to indemnify against non-payment
14.27 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 Borrower under clause 11
("Costs, charges, expenses and indemnities") 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 3
Business Days of demand from the Trustee.
The Borrower's back-to-back indemnity
14.28 The Borrower indemnifies 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 3.27 ("Senior Creditor's
to indemnify against non-payment").
The Borrower agrees to pay amounts due under
this indemnity to the Trustee on demand from
the Trustee.
Funds before acting
14.29 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 Borrower or any other Obligor
becoming obliged to pay to the Trustee an amount under clause 11
("Costs, charges, expenses and indemnities") 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 ("Matters requiring instructions from
relevant Senior Creditors") or clause 7.2(b) ("Consequences of
default") of this deed) to place it in funds at least equal to
the amount the Trustee reasonably determines would be the
Borrower's 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
14.30 If a Senior Creditor or a Relevant Senior Creditor (as the case may be)
does not fund the Trustee under clause 3.29 ("Funds before acting")
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 3.29 ("Funds before
acting") are taken to be satisfied. Each Senior Creditor agrees that:
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(a) a payment by a Senior Creditor to the Trustee under this
clause 3.30 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.
Borrower's costs obligation not affected
14.31 A payment by a Senior Creditor under clauses 3.27 ("Senior Creditor's
to indemnify against non-payment"), 3.29 ("Funds before acting") or
3.30 ("If a Senior Creditor does not fund") does not relieve the
Borrower of its obligations under clause 11 ("Costs, charges, expenses
and indemnities") or any other Obligor of its obligations under any
corresponding provisions of any other Senior Finance Document.
Compliance may be assumed
14.32 In relation to any act of the Trustee, neither the Obligors nor the
Junior Creditors may 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 Borrower has 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
14.33 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
14.34
(a) The Trustee may employ agents, contractors 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.
(b) The Trustee may act on the opinion, certificate or advice of
or information obtained from, any agent or contractor
appointed by it under this clause 3.34.
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Trustee may rely on communications and opinions
14.35 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
14.36 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 Senior Creditor promptly after it determines that it is
unable to act.
No responsibility for force majeure
14.37 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 3.36 ("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
14.38 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.
Restriction on Senior Creditors exercising rights
14.39 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:
(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 3.29 ("Funds
before acting") 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.
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15 Subordination
Subordination
15.1 Despite any other agreement between a Junior Creditor and an Obligor
but except as permitted by clauses 4.6 ("Junior Creditor Undertakings")
and 4.7 ("Permitted Junior Creditor Payments"), 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
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(c) that Junior Debt is refinanced by Qualifying Subordinated Debt or
Consolidated Senior Debt.
Rights and obligations following an Event
15.2 If an Event occurs, then the Junior Debt is payable immediately.
15.3 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.
15.4 A Junior Creditor may not prove for its Relevant Junior Debt except
following a request from the Trustee under clause 4.3.
15.5 Except as permitted by clause 4.7 ("Permitted Junior Creditor
Payments"), if a Junior Creditor receives or recovers any money on
account of that Junior Creditor's Relevant Junior Debt or any amount is
paid to any person in connection with that Junior Creditor's Relevant
Junior Debt including, without limitation, to an 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
15.6 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, sue for, accept
payment or repayment of (except for demands, suits, payments
or repayments which are permitted under clause 4.7 ("Permitted
Junior Creditor Payments")) or in any way allow by reduction
of an Obligor's assets or otherwise, the discharge,
satisfaction or extinguishment of its Relevant Junior Debt; 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 ("Subordination"); 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
(f) suffer to exist or take a Security Interest to secure payment
of its Relevant Junior Debt; or
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(g) except as permitted by clause 6.6(k) ("Negative undertakings -
loans"), 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
15.7 So long as:
(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 (or would occur as a result of the relevant
payment),
an Obligor may pay, prepay, repay, satisfy or
discharge, and a Junior Creditor 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 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 and the Junior Creditors may
make demands in respect of, or so as to
establish a liability to pay, any amount so
permitted to be paid.
15.8 Except as permitted by clause 4.7 ("Permitted Junior Creditor
Payments") 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.
15.9 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
15.10 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
(b) suffer to exist or grant a Security Interest to secure payment
of the Junior Debt; or
(c) directly pay (except for payments or repayments which are
permitted under clause 4.7 ("Permitted Junior Creditor
Payments")) or in any way reduce the Obligor's assets to
discharge the Junior Debt; or
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(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 ("Subordination"); 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 ("Subordination"); 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 6.6(k) ("Negative undertakings
- loans"), be the creditor in respect of any Indebtedness; or
(j) convert any Junior Debt into shares in that Obligor.
15.11 Except as permitted under clause 4.7 ("Permitted Junior Creditor
Payments"), 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
15.12 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
15.13 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:
(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;
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(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.
15.14 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; and
(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.
15.15 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.
15.16 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:
(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 bill 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.
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15.17 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
15.18 Each Junior Creditor irrevocably appoints the Trustee and each
Authorised Officer of the Trustee severally as its attorney.
15.19 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.
15.20 The Junior Creditor agrees to ratify anything done by an attorney or
its delegate in accordance with clause 4.19 ("Power of Attorney").
15.21 The Junior Creditor may not exercise the right of proof referred to in
clause 4.19 independently of the attorney.
Corporations Act 2001 (C'th)
15.22 This clause 4 ("Subordination") is intended to operate as a "debt
subordination" (as defined in section 563C(2) of the Corporations Act
2001 (C'th)) by each Junior Creditor.
Obligors
15.23 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.
TXU
15.24 The parties acknowledge that the only obligations incurred by TXU in
entering into this deed are as a Junior Creditor and that if the TXU
Subordinated Loan is fully repaid as permitted by this deed, then upon
request in writing from TXU, attaching a certificate from the
Partnership that all moneys owing under the TXU Subordinated Loan have
been fully repaid, the Trustee (without requiring instructions from the
Senior Creditors) shall release TXU as a party to this deed.
Notice to Junior Creditors
15.25 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; or
(b) the occurrence of any Event of Default or Potential Event of
Default.
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16 Representations and warranties
Representations and warranties
16.1 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 the
Partnership) 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 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) (consolidated accounts):
(i) the audited consolidated Financial Statements for the
Partnership and its Subsidiaries for the year ended
31 December 2002 given to the Trustee are a true and
fair statement of the financial position of the
Partnership and its Subsidiaries as at the date to
which they are prepared and disclose or reflect all
actual and contingent liabilities as at that date;
and
(ii) thereafter, the most recent audited consolidated
Financial Statements for the Group last given to the
Trustee are a true and fair statement of the
financial position of the Group as at the date they
are prepared and disclose or reflect all of the
actual and contingent liabilities of the Group as at
that date;
(g) (no material change) there has been no change in the
financial position of the Group) since the date to
which the consolidated Financial Statements last
given to the Trustee under (f)(i) or (f)(ii) were
prepared which is likely to have a Material Adverse
Effect; and
(h) (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
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(i) (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
has or is likely to have a Material Adverse Effect;
and
(j) (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
(k) (not a trustee) it does not enter into any
Transaction Document as trustee; and
(l) (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
(m) (benefit) it benefits by entering into the
Transaction Documents to which it is a party; and
(n) (solvency) no Insolvency Event has occurred and is
continuing in respect of it; and
(o) (Chapter 2E) it has not contravened and will not
contravene sections 208 or section 209 of the
Corporations Act 2001 (C'th) by it entering into any
Transaction Document or participating in any
transaction in connection with a Transaction
Document; and
(p) (no immunity) it has no immunity from the
jurisdiction of a court or from legal process; and
(q) (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
(r) (shareholdings):
(i) TXU is the ultimate holding company of the
Borrower; and
(ii) the TXUA Parent directly or indirectly owns or
controls all of the issued shares in the
Borrower and each Obligor; and
(iii) the TXUA Parent or the Borrower directly or
indirectly owns and controls all of the issued
shares in each other Obligor (other than TXUA
Parent); and
(s) (control) TXU ultimately controls the composition of
the board of directors of each Obligor and no person
other than TXU and the board of directors of the
relevant Obligor has management and operational
control of an Obligor; and
(t) (Subsidiaries) all Restricted Subsidiaries of the
TXUA Parent are Obligors; and
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(u) (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
(ii) in terms of repayment or payment in winding up,
in priority to all Subordinated Indebtedness and
other Junior Debt; and
(v) (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
(w) (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
(x) (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
(y) (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
(z) (Authorisations) all material Authorisations
required for the Core Business:
(i) have been validly issued and obtained; and
(ii) are in full force and effect; and
(aa) (no default) no circumstance has arisen or is
likely to arise which, in all the circumstances,
is likely to result in the revocation, cancellation,
recision, termination or suspension of any
material Authorisation required for the Core
Business which if revoked, cancelled, rescinded,
terminated or suspended would be likely to have
a Material Adverse Effect; and
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(bb) (only conducts the Core Business) it does not carry
on any business activities other than activities
in connection with the Core Business; and
(cc) (partnership) for so long as the Partnership is an
Obligor, 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 Act 1958 of Victoria.
Continuation of representations and warranties
16.2 The representations and warranties in clause 5.1 ("Representations and
warranties") 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(h) ("General
undertakings - compliance certificate") of this deed by reference to
the then current circumstances. Each Obligor agrees to notify the
Trustee of anything that happens that would mean it could not
truthfully repeat all its representations and warranties in clause 5
("Representations and warranties") 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(h) ("General undertakings -
compliance certificate") of this deed by reference to the then current
circumstances. A notification under this clause does not limit the
Trustee's rights under clause 7 ("Events of Default").
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17 Undertakings
General undertakings
17.1 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 and 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 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 120
days after the end of that Financial Year (other than
in relation to the annual consolidated Financial
Statements referred to in clause 5.1(f)(i) which are
in relation to the Partnership and its Subsidiaries);
and
(g) (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 90 days after the end of that half
year; and
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(i) (special purpose - audited financial
statements) give to the Trustee an audited set
of special purpose financial statements for
each of the TXUA Parent's Unrestricted
Subsidiaries for each Financial Year at
the same time as the provision of the audited
consolidated Financial Statements of the Group
(under clause 6.1(f)), provided that where
there is a grouping of Unrestricted
Subsidiaries carrying on the same Project
Activity, then such financial statements
shall be provided on a consolidated basis for
that group of Unrestricted Subsidiaries;
(ii) (special purpose - unaudited financial
statements) give to the Trustee an unaudited
set of special purpose financial statements
of the TXUA Parent's Unrestricted Subsidiaries
for the first half of each Financial Year at
the same time as the provision of the
unaudited half year consolidated Financial
Statements of the Group (under clause 6.1(g)),
provided that where there is a grouping of
Unrestricted Subsidiaries carrying on the same
Project Activity, then such financial
statements shall be provided on a consolidated
basis for that group of Unrestricted
Subsidiaries;
(iii) (Restricted Subsidiaries and Non-Recourse Debt)
in the event that any of the Restricted
Subsidiaries incurs any Non-Recourse Debt,
then also give to the Trustee:
(A) an audited set of special purpose
financial statements for each
Project Activity of the TXUA
Parent and its Restricted
Subsidiaries for each Financial
Year, at the same time as the
provision of the audited
consolidated Financial Statements
of the Group for the same
period (under clause 6.1(f)),
provided that where there is a
grouping of Restricted
Subsidiaries carrying on the same
Project Activity, then
such financial statements shall be
provided on a consolidated basis
for that group of Restricted
Subsidiaries; and
(B) an unaudited set of special
purpose financial statements for
each Project Activity of the TXUA
Parent and its Restricted
Subsidiaries for the first half of
each Financial Year at the same
time as the provision of the
unaudited consolidated Financial
Statements of the Group for the
same period (under clause 6.1(g)),
provided that where there is a
grouping of Restricted
Subsidiaries carrying on the same
Project Activity, then such
financial statements shall be
provided on a consolidated basis
for that group of Restricted
Subsidiaries; and
(h) (compliance certificate) give to the Trustee at the same time
as it is required to give the Trustee the audited consolidated
Financial Statements of the Group for each Financial Year and
the unaudited consolidated Financial Statements of the Group
for the first half of each Financial Year, a certificate which
must:
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(i) be signed by an Authorised Officer of the Borrower;
and
(ii) set out in reasonable detail the computations and
financial and other information necessary to
establish compliance by the Borrower with the
financial undertakings in clause 6.7 ("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 Financial Statements of the Group
for the end of a Financial Year, be confirmed in
writing by its auditors as being correct so far as it
relates to compliance by the Borrower with the
financial undertakings in clause 6.7 ("Financial
Undertakings"); and
(v) state that the Partnership, the Borrower and TXU
Electricity are in compliance with their obligations
under clause 6.2 ("Hedge Undertakings"); and
(vi) state who are the Restricted Subsidiaries and
Unrestricted Subsidiaries and in the case of the
Unrestricted Subsidiaries state when they were
designated as Unrestricted Subsidiaries; and
(i) (Financial Statements) ensure that the Financial
Statements and other 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 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
(j) (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
(k) (ensure no Event of Default) do everything within its
powers necessary to ensure that no Event of Default
occurs; and
(l) (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, if
applicable, any step taken or proposed to remedy it;
and
(m) (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 which has or is likely to have a Material
Adverse Effect; and
(n) (constitution) promptly notify the Trustee of any
proposal to materially change its constitution; and
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(o) (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 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
(p) (regulatory) provide notice to the Trustee as soon as
it becomes aware of:
(i) any proposed or actual revocation, cancellation,
rescission, termination or suspension of any
material Authorisation required for the Core
Business which has or is likely to have a
Material Adverse Effect;
(ii) any material breach of any material
Authorisation required for the Core Business to
which it is a party which has or is likely to
have a Material Adverse Effect; and
(q) (Core Business) engage only in, and continue to
engage only in, activities which relate to the Core
Business; and
(r) (Authorisation) comply with its obligations under all
material Authorisations and take all necessary steps
to remedy any breach of any material Authorisation or
law where such breach has or is likely to have a
Material Adverse Effect; and
(s) (Infrastructure) 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
(t) (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
(u) (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
(v) (Authorisations) promptly obtain, maintain and renew
on time each material Authorisation required for the
Core Business where failure to do so would or is
likely to have a Material Adverse Effect; and
(w) (Taxes) pay when due all Taxes payable by it, other
than Contested Taxes; and
(x) (business) ensure that the business of the Material
Operating Subsidiaries is conducted in a proper and
efficient manner in accordance with prudent business
practices and in accordance with Good Operating
Practice; and
(y) (intellectual property) take all reasonable steps to
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
reasonably required for its business in accordance
with normal prudent business practices; and
(z) (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 (but only for failure to
supply which is attributable to the actions or
omissions of an Obligor) 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 in a manner which a prudent person engaged
in a similar business or undertaking to that of the
Obligor would effect; 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; and
(vii) if requested by the Trustee, provide the Trustee with
copies of all insurance policies and certificates of
insurance in connection with or comprising any of the
properties or assets or liabilities of the Obligors;
and
(viii) 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
(ix) not do or permit anything to be done or fail to do
anything which prejudices any insurance; and
(x) immediately rectify anything which might prejudice any
insurance and immediately reinstate the insurance if it
lapses; and
(xi) not, without the consent of the Trustee or as otherwise
permitted by the above provisions, materially restrict
the coverage under, cancel or allow to lapse insurance
in connection with any of its property, assets and
liability; and
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(xii) 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
(aa) (group relations) 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
(bb) (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 Consolidated Senior Debt
less the Amount Owing to any Transactional Bank in respect of
or in connection with any Transactional Banking Facility with
a TXU8 Borrower; and
(cc) (TXU8 borrowers) ensure that all Obligors (other than TXUA
Parent, the Partnership, the Borrower and TXUA) are jointly
and severally liable for the Indebtedness owing to TXU8 under
the TXU8 Loan Agreement; and
(dd) (Tax consolidation) ensure that, if a consolidated group is
created in accordance with Part 3 - 90 of the Income Tax
Assessment Act 1997 (Cth) which would comprise any Obligor,
each company in the consolidated group enters into a tax
sharing agreement that provides for a fair and reasonable
allocation of the tax liabilities of the group.
Hedge Undertakings
17.2 The Partnership, Holdco and TXU Electricity each undertake:
(a) (Perform Xxxxxx): to perform and observe all of the
obligations on their part contained in the Hedge Agreements to
which they are a party and in accordance with the Hedging
Policy;
(b) (Mark to market): to adjust the Hedging Agreements they each
have in place at any time, by closing out appropriate Hedge
Agreements and putting new Hedge Agreements in place to ensure
that, within the requirements of the Hedging Policy, each
would not be required under United States or generally
accepted Australian Accounting Standards, to mark to market
the obligations under any one or more Hedge Agreements; and
(c) (Maximum hedging): to 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.
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Accession of Hedge Counterparties
17.3 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.
Notification of Hedge Exposures
17.4 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.
Restricted and Unrestricted Subsidiaries Undertakings
17.5 Each Obligor undertakes that:
(a)
(i) subject to clause 6.5(c), each Subsidiary of which
80% or more of the voting securities or other equity
interests are owned by the TXUA Parent or the
Borrower, or one or more of their Subsidiaries shall
be deemed to be a Restricted Subsidiary; and
(ii) subject to clause 6.5(e), each Subsidiary of the TXUA
Parent or the Borrower which becomes a Material
Operating Subsidiary after the Debt Refinance Date
(unless prior to becoming a Material Operating
Subsidiary, the Subsidiary is deemed or designated as
an Unrestricted Subsidiary in accordance with this
clause 6.5) shall be deemed a Restricted Subsidiary
and a Required Restricted Subsidiary; and
(b) any Subsidiary (including any newly created or
acquired Subsidiary) that is designated in writing by
the Borrower to the Trustee as being a Restricted
Subsidiary at any time shall be a Restricted
Subsidiary;
(c) any Restricted Subsidiary (including any newly
created or acquired Subsidiary) that is not a
Required Restricted Subsidiary may be designated by
the Borrower as an Unrestricted Subsidiary by
delivery of written notice to the Trustee, provided
that:
(i) no such designation shall be effective if immediately
after giving such notice an Event of Default would
occur and be subsisting; and
(ii) no Subsidiary shall have its designation changed from
Restricted Subsidiary to Unrestricted Subsidiary more
than twice; and
(d) any Subsidiary that is not designated as, or deemed
to be, a Restricted Subsidiary pursuant to this
clause 6.5 shall be deemed to be an Unrestricted
Subsidiary and shall be entitled to be released from
this deed as an Obligor by the execution of a Deed of
Release, substantially in the form of schedule 8 to
this deed and delivery to the Trustee of two executed
counterparts of the Deed of Release to the trustee
for execution by the Trustee;
(e) as at the date of the Amending Deed:
(i) TXU Pipelines Pty Ltd, TXU Pipelines Holdings Pty
Ltd, TXU Sea Gas SPVI Pty Ltd and TXU Sea Gas SPV2
Pty Ltd will be deemed to be Unrestricted
Subsidiaries;
(ii) each other Subsidiary of the TXUA Parent or the
Borrower is, as at the Debt Refinance Date,
designated as a Restricted Subsidiary; and
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(iii)
(A) each Subsidiary of the TXUA
Parent or the Borrower which
from time to time is a
Material Operating
Subsidiary (which, for the
avoidance of doubt includes
TXU Electricity, TXU Networks
(Gas), TXU (South Australia)
Pty Ltd, TXU Gas
Storage and TXU
Pty Ltd); and
(B) the TXU Australia Holdings
(Partnership) Limited
Partnership, the general
partner of which is TXU
Australia Holdings (AGP)
Pty Ltd and the limited
partners of which are TXU
Australia (LP) No. 1 Limited
and TXU Australia
(LP) No. 2
Limited,
is and will at all times be deemed to be a
Required Restricted Subsidiary;
(f) if the Borrower designates a Subsidiary to be a Restricted
Subsidiary it will procure the Subsidiary to execute and
deliver to the Trustee a New Obligor Accession Deed agreeing
to be bound as an Obligor under this deed and to provide the
Trustee with the documents, instruments and assurances
referred to in clause 6.6(j)(iii).
Negative Undertakings
17.6 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): 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, Indebtedness
incurred by the Borrower or Qualifying Subordinated
Debt incurred by the TXUA Parent; and
(c) (disposals of Assets): in any Financial Year, 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 Distribution Licence
(except a sale, transfer or other disposal from an
Obligor to another Obligor); or
(ii) all or a substantial part of the Total Network Assets
which relate to electricity or all or a substantial
part of the Total Network Assets which relate to gas;
or
(iii) 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:
(i) a copy of the documents relevant to the transaction;
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(ii) a satisfactory opinion from an Australian law firm or accounting firm as
to the tax implications of the transaction;
(iii) 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
(iv) 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:
(i) the proceeds received or receivable by the Group are
applied to permanently repay and reduce Senior Debt;
and
(ii) such securitisation programme constitutes a Permitted
Disposal; and
(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:
(i) would be a transaction which would ordinarily be
carried out by a prudent, responsible company
carrying on a similar business; and
(ii) would be in accordance with Good Operating Practice;
and
(g) (Authorisations): agree or consent to any variation
in any material respect of a material Authorisation
required for the Core Business where such variation
has or is likely to have a Material Adverse Effect,
without the prior written consent of the Trustee
(acting on the instructions of the Majority of Senior
Creditors); and
(h) (Variation of Intercompany Loan Agreements and
Partnership Deed): 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):
(i) vary or allow to be varied; or
(ii) cancel, revoke, surrender or repudiate; or
(iii) terminate, permit the termination of or do anything
or refrain from doing anything which would entitle
any other person to terminate (other than discharge
by performance in accordance with its terms), unless
it is replaced immediately in substantially the same
terms,
any Intercompany Loan Agreement or (for so
long as the Partnership is a Guarantor), the
Partnership Deed; 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
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(j) (Subsidiaries): create or acquire any Subsidiary (other than
an Unrestricted 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
(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) Indebtedness extended to customers or contracting parties of
the Core Business in respect of payment for goods or services
or the satisfaction of contractual obligations owed to the
Obligor on arm's-length terms in the ordinary course of
business;
(iii) loans or other distributions by the TXUA Parent to any of its
shareholders;
(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) (Partnership): in the case of the General Partner and the
Limited Partners (for so long as the Partnership is a
Guarantor), resign from, terminate or dissolve the Partnership
or attempt to do so without the prior written consent of the
Trustee; and
(n) (subordinated debt): incur any Subordinated Indebtedness other
than:
(i) the TXU Subordinated Loan;
(ii) the Subordinated Convertible Loan;
(iii) the Intercompany Loan Debt of TXU8 under the TXUA - TXU8 Loan
Agreement; or
(iv) Qualifying Subordinated Debt; and
(o) (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
$20,000,000 in any Financial Year, provided that an Obligor
may lease or license:
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(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; or
(ii) motor vehicles; or
(iii) the Torrens Island Power Station and related assets; or
(iv) any Generation Asset or other Infrastructure Asset and related
assets provided that a substantial component of the rental,
premium or other payments payable by an Obligor in relation to
such lease or licence are payable upfront at the commencement
of the lease or licence; and
(p) (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) Indebtedness as defined in paragraphs (a), (b) and (l) in the
definition of Permitted Indebtedness; and
(iii) the shares held by it in TXU9; and
(q) (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
(ii) the shares held by it in TXU8, the TXU8 Borrowers and the
Excluded Subsidiaries; and
(iii) Indebtedness as defined in paragraphs (b), (c), (e) and (l) in
the definition of Permitted Indebtedness; and
(iv) general administration and support services for the Group; and
(r) (Maintaining the Networks Business):
(i) undertake any sale, transfer, or other disposal of any assets,
or any purchase or other acquisition of any asset, the result
of which would be that the value of the Total Network Assets
as calculated using the most recent audited consolidated
Financial Statements of the TXUA Parent and its Restricted
Subsidiaries (or asset schedule provided with those
statements) would be less than 55% of the value of Total Group
Assets, as calculated using the most recent audited
consolidated Financial Statements (or asset schedule provided
with those statements); and
(ii) in the event that any sale, transfer, or other disposal of any
assets, or any purchase or other acquisition of any asset, may
have the result specified in paragraph (r)(i) above, then the
Obligors will, within 180 days following such event, either
dispose of or acquire such other assets so as to effect
compliance with the requirements of this clause (r); and
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(s) (change of constitution): without the prior written consent of
the Trustee, materially change its constitution, which change
has or is likely to have a Material Adverse Effect.
Financial Undertakings
17.7 The Borrower undertakes to ensure that:
(a) (Gearing ratio): the percentage 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) but
including any capital accretions to or in relation to CPI
swaps at the relevant time calculated on an accruals basis) to
Total Capitalisation is not greater than 65% at all times.
(b) (ICR): the Consolidated Interest Cover Ratio as at 30 June
2004 and each subsequent Calculation Date will be not less
than 1.75.
(c) (Net Worth): the Consolidated Net Worth will not be less than
$1,300,000,000 at all times.
Changes in Australian Accounting Standards
17.8 Each Obligor undertakes to ensure that:
(a) if Australian Accounting Standards change from time to time
after the Debt Refinance Date so that the financial
calculations required to be made under this deed with respect
to the various undertakings contained in clause 6.7
("Financial Undertakings") are materially affected to the
Borrower's detriment, the Borrower then shall furnish the
Trustee with a certificate of an Authorised Officer of the
Borrower specifying the effective date of such change in
Australian Accounting Standards and describing in reasonable
detail how such change affects the financial calculations,
which shall be confirmed in writing by the Group's auditors;
and
(b) thereafter, the Borrower shall agree in good faith with its
auditors and the Trustee (acting on the instructions of the
Majority of Senior Creditors) the mechanism to amend the
relevant financial covenants levels in clause 6.7 ("Financial
Undertakings") and where necessary any relevant definitions so
that the amended financial covenants are in effect comparable
to the financial covenant levels as at the date of the
Amending Deed. Any such revised covenant levels shall be
furnished by the Borrower to the Trustee in writing and shall
take effect as at the date the Australian Accounting Standards
so changed.
17.9 Each Obligor, the Trustee and the Senior Creditors hereby agree:
(a) to execute any amendment, waiver or other document reasonably
requested by the Borrower and the Trustee (acting upon the
instructions of the Majority of Senior Creditors) evidencing
the amended financial covenant levels described in clause
6.8(b);
(b) that if a change in Australian Accounting Standards results in
the Borrower breaching any of the financial covenants in
clause 6.7 ("Financial Undertakings") which would otherwise
cause a Potential Event of Default or Event of Default to
occur, (at a time when no other Potential Event of Default or
an Event of Default exists), then notwithstanding anything to
the contrary in this deed, no Potential Event of Default or an
Event of Default will be caused by such a change in Australian
Accounting Standards for a period of 180 days following the
change in Australian Accounting Standard which would have
otherwise caused the occurrence of a Potential Event of
Default or an Event of Default.
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18 Events of Default
Events of default
18.1 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): the Borrower fails at any
time to comply with the undertakings in clauses 6.7(a)
("Financial undertakings - Gearing ratio") or 6.7(c)
("Financial Undertakings - Net Worth") or, in respect of
undertaking in clause 6.7(b) ("Financial undertakings - ICR"):
(i) the Borrower fails to deliver to the Trustee a
certificate of compliance on the due date as required by
clause 6.1(h)("General undertakings - 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 Borrower is in breach of the undertaking in clause
6.7(b) ("Financial undertakings - ICR"); or
(iii) the Borrower gives notice to the Trustee of a breach of
its undertaking in clause 6.7(b) ("Financial
undertakings - ICR"); or
(iv) the Trustee gives notice in writing to the Borrower that
it is in breach of the undertaking in clause 6.7(b)
("Financial undertakings - ICR") and the Borrower is in
fact in breach of that undertaking; or
(c) (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) or
(b) above) and the 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
(d) (cross default): any Indebtedness of an Obligor (other than
any Qualifying Subordinated Debt or Non-Recourse Debt)
exceeding in aggregate $20,000,000 (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
(e) (execution against property): execution of a court order or
other legal right is levied and not stayed, withdrawn or
satisfied within 30 days of being made or a judgment is
enforced or an order or Security Interest (other than in
respect of Limited Recourse Debt or Non-Recourse Debt) is
enforced, or becomes enforceable, against any property of an
Obligor for an amount exceeding $10,000,000; or
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(f) (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
(g) (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
(h) (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 as permitted by
paragraph (i) ("reduction of capital") to effect a members
voluntary winding up or to deregister, dissolve, reconstruct
or amalgamate while solvent on terms approved by the Trustee;
or
(i) (reduction of capital): an Obligor takes action to reduce its
capital or passes a resolution referred to in section 254N of
the Corporations Act 2001 (C'th), in either case without the
prior written consent of the Trustee provided that a reduction
of capital in relation to shares held by:
(i) the Borrower in TXUA; and
(ii) the Partnership in the Borrower,
to facilitate the payment of any portion of
the Amount Owing to a Senior Creditor shall
be permitted; or
(j) (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 Act 2001 (C'th), 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:
(iv) the Borrower in TXUA; or
(v) the Partnership in the Borrower,
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 Act
2001 (C'th) have the meanings given
to them in the Corporations Act 2001
(C'th); or
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(k) (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
(l) (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 or
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
(m) (change of shareholding): if at any time the representation
and warranty in clause 5.1(r) ("Representations and warranties
- shareholdings") is untrue, incorrect or misleading; or
(n) (change of control): TXU ceases for any reason to ultimately
control the composition of the board of directors and to have
management and operational control of each Obligor; or
(o) (investigation): a person is appointed under the Corporations
Act 2001 (C'th) or other companies and securities legislation
to investigate any part of the affairs of an Obligor which
will, or is likely to, result in a Material Adverse Effect; or
(p) (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 30 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
(q) (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
(r) (Authorisation):
(i) a Licence is:
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(A) revoked, cancelled, rescinded,
suspended, terminated,
allowed to lapse; or
(B) transferred (except to another Obligor),
and the revocation, cancellation, rescission,
suspension, termination or lapsing is not
reversed or itself revoked or a replacement
is not issued or acquired within 45 days;
(ii) a material Authorisation required for the Core Business
is revoked, cancelled, rescinded, suspended, terminated,
allowed to lapse (and a replacement is not immediately
issued) or transferred (except to another Obligor)
which has or is likely to have a Material Adverse
Effect;
(iii) an administrator is appointed to all or any part of the
business of an Obligor under the Gas Industry Act 1994,
or the Electricity Industry Act 1993 or any
corresponding legislation in a jurisdiction other
than Victoria; or
(iv) a material clause in a material Authorisation required
for the Core Business 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
30 days of the Obligor becoming aware of it and, in
respect of a material Authorisation only, where such
voidness or unenforceability has or is likely to
have a Material Adverse Effect; or
(s) (other void contracts):
(i) for so long as the Partnership is a Guarantor, the
Partnership Deed or any material provision of the
Partnership Deed is terminated or is or becomes void
voidable or unenforceable; or
(ii) an Intercompany Loan Agreement or any material provision
of any of those documents is terminated or is or becomes
void, voidable or unenforceable; or
(t) (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 7.1 ("Events of default") occurs; or
(u) (Hedge Agreement): an event of default (other than in relation
to the Hedge Counterparty) occurs under a Hedge Agreement
which has not been remedied or waived and which results in an
amount in excess of $20,000,000 (or its equivalent in another
currency) becoming prematurely payable and which:
(i) is not satisfied on time or at the end of any applicable
period of grace; or
(ii) is not discharged when due; or
(iii) is not discharged at maturity or when duly called; or
(v) (Security Interest): any Security Interest is created or
allowed to exist or subsist on any shares held in the Borrower
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 Borrower receives a notice of such event from
the Trustee.
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Consequences of default
18.2 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 Borrower, the Partnership and TXU
Electricity (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 ("Matters requiring
instructions from relevant Senior Creditors"),
declare at any time by notice to the Borrower, the
Partnership and TXU Electricity (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.
18.3 The Trustee may make either or both of the declarations referred to in
clause 7.2(a) and 7.2(b) ("Consequences of default"). The making of
either of them gives immediate effect to its provisions. The Borrower,
the Partnership, TXU Electricity or other relevant Obligors (in the
case of a Transactional Banking Facility) must pay any amount demanded
in accordance with a demand.
18.4
(a) If the Trustee makes any declaration under clause 7.2
("Consequences of default"):
(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 7.4(a) does not affect the obligations of the Borrower,
the Partnership, TXU Electricity (or other relevant Obligors,
in the case of a Transactional Banking Facility) under clause
7.3.
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18.5
(a) After a declaration is made under clause 7.2 ("Consequences of
default"), the relevant Senior Finance Documents may be
enforced (but subject always to clause 7.2 ("Consequences of
default")) 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.
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19 Distribution of Recovered Money
19.1 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 7.2(a)
("Consequences of default") but which, for any reason whatsoever, has
not been distributed by the time a notice is given under clause 7.2(a)
("Consequences of default")) 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 8.4.
19.2 Unless the Majority of Senior Creditors decide otherwise, money
referred to in clause 8.1 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.
19.3 Any suspense account to which money is placed under clause 8.2 is to be
an interest bearing account selected reasonably by the Trustee.
Interest earned on the account is to be treated as Recovered Money.
19.4 Recovered Money is to be distributed by the Trustee as soon as
practicable after the Trustee receives it as follows:
(a) 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;
(b) secondly, towards satisfaction of
any other expenses or outgoings in
connection with any receivership
under or the enforcement of any
Senior Finance Document;
(c) thirdly, towards payment to the
Trustee of any money due to it in
its capacity as Trustee under any
Senior Finance Document;
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(d) 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;
(e) 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
(f) sixthly, the surplus (if any) shall be paid on demand, to the
relevant Obligors, but will not carry interest.
19.5 If at any time the Trustee receives money under a Senior Finance
Document after a notice is given under clause 7.2(b) ("Consequences of
default") but before a notice is given under clause 7.2(a)
("Consequences of default") (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 8.4
except that the references in clause 8.4(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 7.2(b)
("Consequences of default") in accordance with clause 3.8 ("Matters
requiring instructions from relevant Senior Creditors").
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20 Replacement of Trustee
Removal of Trustee
20.1
(a) The Trustee may be removed at any time:
(i) by the Majority of Senior Creditors giving to the Trustee at
least 30 days' notice to that effect;
(ii) subject to clause 9.1(b), with the agreement of the
Borrower, which agreement must not be unreasonably
withheld or delayed; and
(iii) by the Borrower, if the Majority of Senior Creditors
and the Borrower agree that the Trustee has engaged
in fraud, gross negligence or wilful misconduct.
(b) The Borrower's agreement under clause 9.1(a) is not required if:
(i) an Event of Default has occurred and is subsisting;
(ii) the removal of the Trustee is due to the Trustee's
fraud, gross negligence or wilful misconduct; or
(iii) an Insolvency Event occurs or arises in relation to
the Trustee.
Resignation
20.2 Subject to clause 9.5 ("Appointment of successor Trustee"), the Trustee
may resign as Trustee by giving to the Borrower and each other Senior
Creditor not less than 30 days' notice (or such shorter period as the
Borrower and the Majority of Senior Creditors may agree) of its
intention to do so.
Effect of resignation or removal
20.3
(a) Upon the resignation or removal of the Trustee pursuant to
clauses 9.1 ("Removal of Trustee") or 9.2 ("Resignation") ,
the Trustee is released from any further obligations as
Trustee under this deed, but such release does not prejudice
any liability in respect of any default arising before the
termination of appointment.
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(b) Subject to clause 9.3(c) , the Borrower must indemnify the
Trustee and each Senior Creditor for the costs of the
resignation, removal or replacement of the Trustee under this
clause 9 ("Replacement of Trustee").
(c) If the Trustee is removed or retires:
(i) due to the Trustee's fraud, gross negligence or wilful
misconduct; or
(ii) at its own election,
the reasonable costs of the resignation or
removal of the Trustee will be borne by the
Trustee.
Assurances
20.4 Despite clauses 9.1 ("Removal of Trustee") or 9.2 ("Resignation"), no
resignation or removal of the Trustee takes effect unless:
(a) a successor Trustee has been appointed in accordance with
clause 9.5 ("Appointment of successor Trustee");
(b) the successor Trustee undertakes to act as Trustee and be
bound in that capacity by the terms of this deed and each
other Senior Finance Document to which the Trustee is a party
(subject to any agreed amendment to those documents); and
(c) the successor Trustee has obtained title to any guarantee,
guarantee and indemnity or Security Interest held by the
retiring Trustee.
Appointment of successor Trustee
20.5
(a) If the Trustee resigns or is removed, the Majority of Senior
Creditors may appoint a successor Trustee approved by the
Borrower, which approval:
(i) must not be unreasonably withheld or delayed;
(ii) is not required if:
(A) an Event of Default has
occurred and subsisting; or
(B) the successor Trustee is to be a
Related Entity of the retiring
Trustee; and
(iii) is deemed to be given by the Borrower if the Borrower
does not reply within 10 Business Days after the request
for its approval is made.
(b) If no successor Trustee is so appointed or accepts the
appointment within 30 days after:
(i) notice of resignation or removal is given in accordance
with clauses 9.1 ("Removal of Trustee") or 9.2
("Resignation"); or
(ii) the Trustee's appointment is otherwise terminated,
the Trustee may, on behalf of each Senior Creditor,
appoint a successor Trustee of any type or nature and on
such terms and conditions as to fees and other terms as
the terminated Trustee thinks fit.
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(c) Each Senior Creditor and Obligor is bound by the terms and
conditions of any appointment effected under clause 9.6(b).
(d) Each Senior Creditor and each Obligor must do all things
necessary, including executing any deeds of appointment or
other documents, to ensure that the appointment of any
successor Trustee is properly and promptly effected.
(e) When a successor Trustee is appointed, the successor 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 successor Trustee had been an original party
to the Senior Finance Documents to which the Trustee is a
party (other than in relation to any accrued right against the
terminated Trustee for default under the Senior Finance
Documents) in place of the terminated Trustee.
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21 Limitation on Liability
21.1 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 Act 1958
of Victoria, limited to the amount shown in relation to it in the
Register (as defined in the Partnership Act 1958 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 10.1 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.
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22 Costs, charges, expenses and indemnities
What the Borrower agrees to pay
22.1 The Borrower agrees 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) 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
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(c) 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 Borrower 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 Borrower's account
after asking the Borrower to pay and the
Borrower has failed to pay the amount
requested.
Indemnity
22.2 The Borrower indemnifies 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.
The Borrower agrees to pay amounts due under
this indemnity to the Trustee on demand from
the Trustee.
Items included in loss, liability and Costs
22.3 The Borrower agrees that:
(a) the Costs referred to in clause 11.1 ("What the Borrower
agrees to pay") and the liability, Loss or Costs referred to
in clause 11.2 ("Indemnity") include in relation to clause
11.1(a), reasonable legal Costs and in relation to clause
11.1(b) and 11.2 ("Indemnity"), 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
(b) the Costs referred to in clause 11.1(a) and (b) ("What the
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
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(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 third party losses
22.4 The Borrower agrees 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 11.2 ("Indemnity") suffered or incurred by any attorney,
employee, officer, agent or contractor of the Trustee or the Senior
Creditor except to the extent caused by that person's gross negligence.
Currency conversion on judgment debt
22.5 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
Borrower indemnifies 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.
The Borrower agrees to pay amounts due under
this indemnity to the Trustee on demand from
the Trustee.
Trustee fees
22.6 The Borrower agrees 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 Borrower
and the Trustee.
GST
22.7
(a) Despite any other provisions of the Senior Finance Documents,
in the event that GST has application to any supply made by a
Senior Creditor to the Obligors under or in connection with
the Senior Finance Documents, the Senior Creditor may,
in addition to any amount or consideration payable under the
Senior Finance Documents, recover from the Borrower an
additional amount on account of GST, such amount to be
calculated by multiplying the relevant amount or
consideration payable by the Borrower for the relevant supply
by the prevailing GST rate. Any additional amount on
account of GST recoverable from the Borrower pursuant to this
clause shall be calculated without any deduction or
set-off of any other amount and is payable by the Borrower
upon demand by the Trustee whether such demand is by
means of an invoice or otherwise.
(b) In relation to any taxable supplies under or in connection
with the Senior Finance Documents, the relevant Senior
Creditor will provide the Borrower with valid tax invoices, as
a precondition to recovery by it of the relevant additional
amount on account of GST under clause 11.7(a) , in a form that
will enable the Borrower to claim any refund or credit of GST
permitted by the GST law.
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(c) If at any time an adjustment is made as between the Senior
Creditor and the relevant taxing authority of an amount paid
on account of GST on any supply made by the Senior Creditor
under the Senior Finance Documents, a corresponding adjustment
must be made as between the Senior Creditor and the Borrower
and any payments required to give effect to the adjustment
must be made. If the Senior Creditor is entitled to an
adjustment by way of refund, the Senior Creditor must apply
for the refund if requested in writing to do so by the
Borrower.
(d) Nothing in this clause requires the Borrower to pay an amount
on account of a fine, penalty, interest or other amount for
which a Senior Creditor is liable, to the extent that the
liability arises as a consequence of wilful misconduct or
gross negligence by the Senior Creditor, its employees or
agent.
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23 Notices
Form
23.1 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:
(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
("Communications") must be to that
address or number; or
(c) 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
(d) 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
(e) despite clauses 12.1(c) and 12.1(d), Communications 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 5.00pm (addressee's
time) it is taken to be received at 9.00am on the following
Business Day.
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Waiver of notice period
23.2 The Trustee may waive a period of notice required to be given by an
Obligor under this deed.
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24 Change in Creditors
New Senior Creditor
24.1 A person may only become a Senior Creditor under this deed and a Senior
Creditor under the Amending Deed and be entitled to receive the
benefits of a Senior Creditor and be bound by the obligations of a
Senior Creditor under this deed and Amending Deed 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
(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
24.2 Subject to clause 13.9 ("New Junior Creditor - condition precedent"),
a person may only become a Junior Creditor under this deed if that
person has:
(a) agreed to accede to this deed and the Amending Deed and to
receive the benefits of a Junior Creditor and be bound by the
obligations of a Junior Creditor under this deed and the
Amending Deed:
(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 and the Amending 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
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(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
24.3 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 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
24.4 If any Junior Creditor (other than an Obligor) 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 13.9 ("New Junior Creditor - condition
precedent"), 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
24.5 On and from the Accession Date for a New Creditor:
(a) the New Creditor becomes bound by this deed and the Amending
Deed and receives the benefits under this deed as if it were a
party to this deed and the Amending 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 and the Amending 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 and the Amending
Deed on the basis that the New Creditor is a Creditor.
Authority
24.6 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 to the New Creditor)
irrevocably authorises the Trustee to execute any New Creditor
Accession Deed signed by a New Creditor on its behalf.
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24.7 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.
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Restriction on Senior Creditors
24.8 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
24.9 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
24.10 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.
24.11 A Creditor must promptly notify the Trustee of any assignment or
novation of that Creditor's rights, benefits or obligations
under any Finance Document.
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25 General
Set-off
25.1 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
25.2 The Trustee or a Senior Creditor 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.
Prompt performance
25.3 If this deed specifies when an Xxxxxxx 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
25.4 The Trustee or a Senior Creditor 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
25.5 Each Obligor agrees to comply with all conditions in any consent the
Trustee or a Senior Creditor gives in connection with a
Transaction Document.
Partial exercising of rights
25.6 If the Trustee or a Senior Creditor does not exercise a right or
remedy fully or at a given time, the Trustee or Senior
Creditor can still exercise it later.
No liability for loss
76
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25.7 None of the Trustee or a Senior Creditor 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
25.8 The Trustee's or a Senior Creditor'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 r has a personal interest in their
exercise.
Remedies cumulative
25.9 The rights and remedies of the Trustee or a Senior Creditor under this
deed are in addition to other rights and remedies given by law
independently of this deed.
Rights and obligations are unaffected
25.10 Rights given to the Trustee or a Senior Creditor under this deed and
an Obligor's liabilities under it are not affected by any law that
might otherwise affect them.
Indemnities
25.11 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, or a Senior
Creditor to incur expense or make payment before enforcing a right of
indemnity under this deed.
Variation and waiver
25.12 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.
Confidentiality
25.13 The Trustee and each Senior Creditor agree 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 Borrower or any of their Related
Entities; or
(c) to officers, employees, legal and other advisers and auditors
of the Trustee or a Senior Creditor; or
(d) to any party to this agreement or any Related Entity of the
Trustee or a Senior Creditor, provided the recipient agrees to
act consistently with this clause 14.13; or
(e) with the Obligors' consent (not to be unreasonably withheld);
or
(f) as required to be in compliance with any Directive or stock
exchange or regulatory authority.
The Obligors consent to disclosures made in accordance
with this clause 14.13.
77
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Further steps
25.14 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
25.15 To the extent permitted by law, this deed prevails to the extent it is
inconsistent with any law.
Supervening legislation
25.16 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 or a Senior Creditor's , 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.
Time of the essence
25.17 Time is of the essence in any Senior Finance Document in respect of an
obligation of an Obligor to pay money.
Counterparts
25.18 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
25.19 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).
(i) 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 14.19. 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; and
(ii) TXU irrevocably appoints the Borrower
to receive any document referred to
in this clause 14.19. If, for any
reason, the Borrower ceases to be
able to receive those documents, TXU
must immediately appoint another
person within Victoria to receive any
such document and notify the Trustee.
Consent by Obligors
25.20 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.
78
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Statutory powers
25.21
(a) The powers of the Trustee under this deed and the Senior
Finance Documents any are in addition to any powers the
Trustee has under applicable law.
(b) To the extent not prohibited by law except as required by any
Senior Finance Document, before enforcing this deed or
exercising any right under the Senior Finance Documents, the
Trustee is not required to give any notice or allow the
expiration of any time to any person.
-------------------------------------------------------------------------------
26 Governing law, jurisdiction and service of process
26.1 This deed is governed by the law in force in Victoria.
26.2 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.
26.3 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 12 ("Notices").
EXECUTED as a deed
79
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Schedule 1 Restricted Subsidiaries
-------------------------------------------------------------------------------
NAME OF OBLIGOR ABN (or ACN where indicated)
-------------------------------------------------------------------------------
TXU Australia Holdings Pty Ltd 97 086 006 859
TXU Australia Pty Ltd 96 000 000 000
TXU (No. 8) Pty Ltd 15 085 235 776
TXU (No. 9) Pty Ltd 36 085 235 801
TXU Networks (Gas) Pty Ltd 43 086 015 036
TXU Pty Ltd 99 000 000 000
TXU Electricity Limited 91 064 651 118
TXU (No. 12) Pty Ltd 50 000 000 000
TXU (No. 7) Pty Ltd 98 085 235 749
TXU Gas Storage Pty Ltd 71 079 089 311
TXU Networks Pty Ltd 27 075 826 881
TXU (No. 14) Pty Ltd 47 076 229 519
TXU Customer Services Pty Ltd 28 080 886 513
TXU (Tallawarra) Pty Ltd 69 081 074 142
TXU Australia Services Pty Ltd 73 081 074 160
TXU (No. 13) Pty Ltd 38 075 826 925
TXU (South Australia) Pty Ltd 84 000 000 000
TXU Torrens Island Pty Ltd 67 081 074 197
Joule Resources Pty Ltd 65 081 074 188
TXU Home Services Pty Ltd 43 095 759 881
Data and Measurement Solutions Pty Ltd 73 097 962 395
TXU MEB Holdings Pty Ltd 22 097 341 636
TXU MEB Pty Ltd 90 097 241 917
TXU VN Pty Ltd 83 097 241 891
Victoria Networks Pty Ltd 64 096 573 572
TXU (No. 6) Pty Ltd 42 081 688 913
80
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TXU Australia (Queensland) Pty Ltd 49 081 754 538
TXU Share Plans Pty Ltd 21 098 955 616
The Partnership, the general partner of 40 315 470 807
which is TXU Australia Holdings (AGP) Pty Ltd
and the limited partners of which are
TXU Australia (LP) No. 1 Limited and
TXU Australia (LP) No. 2 Limited.
TXU (Tallawarra Pipelines) Pty Ltd 19 107 137 735
-------------------------------------------------------------------------------
81
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Schedule 2 Financiers
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
NAME OF FINANCIER ACN/ARBN/ABN NOTICE DETAILS
-------------------------------------------------------------------------------------------------------------------
Syndicated Facilities Financiers
-------------------------------------------------------------------------------------------------------------------
Australia and New Zealand Banking ABN 11 005 357 522 Level 17
Group Limited 000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00) 0000 0000
Attention: Xx Xxxx Xxxxxxxx
-------------------------------------------------------------------------------------------------------------------
BNP PARIBAS ABN 23 000 000 000 00 Xxxxxxxxxxx Xxxxxx
Xxxxxx XXX 0000
Fax: (00) 0000 0000
Attention: Mr Xxxx Xxxxxxx and Xx Xxxxx
Xxxxx
-------------------------------------------------------------------------------------------------------------------
Credit Suisse First Boston ABN 17 061 700 712 Level 27
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00) 0000 0000
Attention: Xx Xxxx Xxxxxx
Assistant Vice President
-------------------------------------------------------------------------------------------------------------------
Citibank, N.A. ABN 34 072 814 058 Level 15
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00) 0000 0000
Attention: Xx Xxxxx Xxxxx
-------------------------------------------------------------------------------------------------------------------
Commonwealth Bank of Australia ABN 48 123 123 124 Level 14
000 Xxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00 0) 0000 0000
Attention: Xx Xxxx Xxxxxx
-------------------------------------------------------------------------------------------------------------------
ING Bank N.V. (Sydney Branch) ABN 32 080 178 196 Level 9
0 Xxxxxxxxx Xxxxx
Xxxxxx XXX 0000
Fax: (00 0) 0000 0000
Attention: Xx Xxxxxx Xxxxxxxx
Legal & Compliance Manager
-------------------------------------------------------------------------------------------------------------------
JPMorgan Chase Bank ABN 43 074 112 011 Level 00
Xxxxxxxxx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxx XXX 0000
Fax: (00 0) 0000 0000
Attention: Xx Xxxx Xxxx
Associate
82
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-------------------------------------------------------------------------------------------------------------------
Mizuho Corporate Bank, Ltd ABN 83 099 031 106 Level 33
00 Xxxxxxxx Xxxxxx
Xxxxxx XXX 0000
Fax: (00 0) 0000 0000
Attention: Xx Xxxxxx Xxxxxxxx
Manager, Corporate Finance
-------------------------------------------------------------------------------------------------------------------
National Australia Bank Limited ABN 12 004 044 937 Level 33
000 Xxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00 0) 0000 0000
Attention: Xx Xxxxxxx Xxxxx
Director, Energy & Utilities
-------------------------------------------------------------------------------------------------------------------
The Bank of Tokyo - Mitsubishi, ABN 75 103 418 882 Level 18
Ltd. Melbourne Branch 000 Xxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00 0) 0000 0000
Attention: Xx Xxxxxx XxxXxxxx
-------------------------------------------------------------------------------------------------------------------
UBS AG, Australia Branch ABN 47 000 000 000 Level 25
Governor Xxxxxxx Tower
0 Xxxxxx Xxxxx
Xxxxxx XXX 0000
Fax: (00) 0000 0000
Attention: Xx Xxxxx Xxxxxxx
Associate Director
-------------------------------------------------------------------------------------------------------------------
United Overseas Bank Limited ABN 56 060 785 284 Level 9
00 Xxxxxx Xxxxx
Xxxxxx XXX 0000
Fax: (00) 0000 0000
Attention: Xx Xxxxxx X Xxxxxxx
Vice President and Head of
Project Finance and
Syndications
-------------------------------------------------------------------------------------------------------------------
Westpac Banking Corporation ABN 33 007 457 141 Level 9
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00 0) 0000 0000
Attention: Mr Xxxxxxx Xxxxxxxx
-------------------------------------------------------------------------------------------------------------------
83
-------------------------------------------------------------------------------------------------------------------
Working Capital Facility Financiers
-------------------------------------------------------------------------------------------------------------------
Australia and New Zealand Banking ABN 11 005 357 522 Level 17
Group Limited 000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00 0) 0000 0000
Attention: Xxxx Xxxxxxxx
-------------------------------------------------------------------------------------------------------------------
Commonwealth Bank of Australia ABN 48 123 123 124 Level 14
000 Xxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00 0) 0000 0000
Attention: Xxxx Xxxxxx
-------------------------------------------------------------------------------------------------------------------
84
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Schedule 3 Hedge Counterparties
-------------------------------------------------------------------------------------------------------------------
NAME OF HEDGE COUNTERPARTY ACN/ARBN/ABN NOTICE DETAILS
-------------------------------------------------------------------------------------------------------------------
Australia and New Zealand Banking ABN 11 005 357 522 Level 12
Group Limited 000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00) 0000 0000
Attention: Manager, Derivative
Operations
-----------------------------------------------------------------------------------------------------------
Citibank, N.A. ABN 34 072 814 058 Level 15
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00) 0000 0000
Attention: Xxxxx Xxxxx
------------------------------------- --------------------------- -----------------------------------------
Commonwealth Bank of Australia ABN 48 123 123 124 Level 0
000 Xxxx Xxxxxx
Xxxxxx XXX 2000
Fax: (00) 0000 0000
Attention: Executive Manager,
Global Markets
------------------------------------- --------------------------- -----------------------------------------
JPMorgan Chase Bank ABN 43 074 112 011 000 Xxxx Xxxxxx
Xxx Xxxx XX 00000-0000
Fax: x0 (000) 000 0000
Attention: Legal Department
Capital Markets Group
With a copy to: Level 00, Xxxxxxxxx
Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxx XXX 0000
Fax: (00) 0000 0000
Attention: Legal Department,
Capital Markets Group
-----------------------------------------------------------------------------------------------------------
National Australia Bank Limited ABN 12 004 044 937 Level 11
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Vic 3000
Fax: (000) 0000 0000
Attention: Manager, Documentation
85
-------------------------------------------------------------------------------------------------------------------
NAME OF HEDGE COUNTERPARTY ACN/ARBN/ABN NOTICE DETAILS
-------------------------------------------------------------------------------------------------------------------
Societe Generale Australia Branch ABN 71 092 516 286 Level 21
000 Xxxxxx Xxxxxx
Xxxxxx XXX 0000
Fax: (00 0) 0000 0000
Attention: Legal Department
-----------------------------------------------------------------------------------------------------------
The Toronto-Dominion Bank ABN 74 082 818 175 Level 24
0 Xxxxxxxxxxx Xxxxxx
Xxxxxx XXX 0000
Fax: (00 0) 0000 0000
Attention: Managing Director,
Credit
-----------------------------------------------------------------------------------------------------------
UBS AG, Australia Branch ABN 47 000 000 000 0 Xxxxxxx Xxxxxxxxx
00-00 Xxxxxx Xxxxx Xxxx
Xxxxxxxxx 000000
Fax: x00 0000 0000
Attention: Legal & Compliance
Department
-----------------------------------------------------------------------------------------------------------
Westpac Banking Corporation ABN 33 007 457 141 Level 9
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00) 0000 0000
Attention: Mr Xxxxxxx Xxxxxxxx
-----------------------------------------------------------------------------------------------------------
86
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Schedule 4 New Creditor Accession Deed
-------------------------------------------------------------------------------
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:
(a) " Deed of Common Terms" means the deed of common terms
dated 24 February 1999 between the Trustee and others, as
amended; and
(b) the "Amending Deed" means the Amendment and Restatement Deed
dated on or about [ ] February 2004 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, the Amending Deed
and each [Senior/Junior] Finance Document, as a
[Senior/Junior] Creditor;
(b) each other party to the Deed of Common Terms, the Amending
Deed 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
and the Amending Deed 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 the Amending Deed; and
87
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(b) each other party to the Deed of Common Terms and the Amending
Deed 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.
2.4 The New Creditor consents to the amendments contemplated by the
Amending Deed and agrees to be bound by the Amending Deed.
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]
88
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Schedule 5 Notices
-----------------------------------------------------------------------------------------------------------------------------------
Borrower and Obligors TXU
Address: Level 33 Address: Energy Plaza
000 Xxxxxx Xxxxxx 0000 Xxxxx Xxxxxx
Xxxxxxxxx Xxx 0000 Xxxxxx, Xxxxx 00000
Xxxxxx Xxxxxx xx Xxxxxxx
Fax: (00 0) 0000 0000
Fax: (000) 000 0000
Attention: Assistant Treasurer Attention: Treasurer
Trustee Financiers
Address: Level 12 As set out in xxxxxxxx 0
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Hedge Counterparties
Fax: 0000 0000
Tel: 0000 0000 As set out in schedule 3
Attention: Transaction Management
& Execution, Credit
Origination and Sales
89
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Schedule 6 - Deed of Subordination
--------------------------------------------------------------------------------
Dated:
Parties: [ ] ("Subordinated Creditor")
[ ] ("Obligor")
[ ] ("Trustee") for itself and on
behalf of the Senior Creditors under the Deed
of Common Terms
-------------------------------------------------------------------------------
17 Definitions and Interpretation
Definitions
17.1 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 as amended.
Final Redemption Date has the meaning given to
it in the Loan Note Subscription Agreement.
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].
17.2 Terms defined in the Deed of Common Terms have the same meaning in
this deed.
Interpretation
17.3 Clause 1.2 of the Deed of Common Terms applies to this deed.
-------------------------------------------------------------------------------
18 Subordination
18.1 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
90
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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
it were a party to the Deed of Common Terms.
18.2 The subordination of the Subordinated Debt is intended to operate as a
"debt subordination" (as defined in section 563C(2) of the Corporations
Act 2001 (C'th)) by the Subordinated Creditor.
19 Laws
-------------------------------------------------------------------------------
This deed is governed by the law in force in Victoria.
EXECUTED as a deed.
[Execution clauses]
91
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Schedule 7 New Obligor Accession Deed
-------------------------------------------------------------------------------
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.
5. 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]
92
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Schedule 8 Obligor - Deed of Release
--------------------------------------------------------------------------------
DEED dated
BETWEEN:
[*] [(ACN [*])] (the "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. RELEASE
With effect from and including the [date of this deed]:
(a) the Obligor, who has been designated as an Unrestricted
Subsidiary is released from its obligations as an Obligor under
the Deed of Common Terms and ceases to be a party to the Deed of
Common Terms; and
(b) the Obligor acknowledges that this discharge does not prejudice
any accrued right of or obligation of the Obligor, prior to the
date of this deed.
3. 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]
93
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Execution page
--------------------------------------------------------------------------------
-------------------------------------------------------------------------------
1
-------------------------------------------------------------------------------
Contents Deed of Common Terms
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
1 Interpretation 2
--------------------------------------------------------------------------------
2 Declaration of trust 28
--------------------------------------------------------------------------------
3 Duties, Powers and Rights of Trustee 28
Authority of Trustee 28
Extent of authority and obligations 28
Senior Creditors bound 28
Excluded roles and duties 28
After consultation and instructions 29
Matters requiring instructions from all Senior Creditors 29
Matters requiring instructions from a Majority of Senior Creditors 30
Matters requiring instructions from relevant Senior Creditors 30
Overriding instructions 31
Without consultation or instructions 31
Trustee's actions 31
Senior Creditor's instructions 32
Trustee's obligations 32
Trustee's awareness of certain events 33
Trustee may assume compliance 33
Limit on disclosure obligations 33
No further obligations 33
Individual responsibility of Senior Creditors 33
Exoneration of Trustee 34
Trustee in capacity of a Senior Creditor 35
Trustee dealing in different capacities 35
Notice of transfer 35
Senior Creditor to pay over amounts received directly 35
Pro-rata refunds 36
Proceeds of litigation 36
Amendment to Deed 36
Senior Creditors to indemnify against non-payment 37
The Borrower's back-to-back indemnity 37
Funds before acting 37
If a Senior Creditor does not fund 37
Borrower's costs obligation not affected 38
Compliance may be assumed 38
Trustee is not responsible for Senior Creditor's breach 38
Delegation by Trustee 38
Trustee may rely on communications and opinions 39
Force majeure 39
No responsibility for force majeure 39
Authority to Execute 39
Restriction on Senior Creditors exercising rights 39
-------------------------------------------------------------------------------
4 Subordination 39
Subordination 39
Rights and obligations following an Event 40
Junior Creditor Undertakings 40
Permitted Junior Creditor Payments 41
Obligors 41
Revocation of Approvals 42
Preservation of Senior Creditor's Rights 42
Power of Attorney 44
Corporations Act 2001 (C'th) 44
Obligors 44
TXU 44
2
-------------------------------------------------------------------------------
5 Representations and warranties 45
Representations and warranties 45
Continuation of representations and warranties 48
-------------------------------------------------------------------------------
6 Undertakings 48
General undertakings 48
Hedge Undertakings 53
Accession of Hedge Counterparties 54
Notification of Hedge Exposures 54
Restricted and Unrestricted Subsidiaries Undertakings 54
Negative Undertakings 55
Financial Undertakings 59
Changes in Australian Accounting Standards 59
-------------------------------------------------------------------------------
7 Events of Default 60
Events of default 60
Consequences of default 64
-------------------------------------------------------------------------------
8 Distribution of Recovered Money 65
-------------------------------------------------------------------------------
9 Replacement of Trustee 66
Removal of Trustee 66
Resignation 66
Effect of resignation or removal 66
Assurances 67
Appointment of successor Trustee 67
-------------------------------------------------------------------------------
10 Limitation on Liability 68
-------------------------------------------------------------------------------
11 Costs, charges, expenses and indemnities 68
What the Borrower agrees to pay 68
Indemnity 69
Items included in loss, liability and Costs 69
Payment of third party losses 70
Currency conversion on judgment debt 70
Trustee fees 70
-------------------------------------------------------------------------------
12 Notices 71
Form 71
Waiver of notice period 72
-------------------------------------------------------------------------------
13 Change in Creditors 72
New Senior Creditor 72
New Junior Creditor 72
Change in Senior Creditors 73
Change in Junior Creditor 73
Effect of Accession 73
Authority 73
Restriction on Senior Creditors 75
New Junior Creditor - condition precedent 75
3
-------------------------------------------------------------------------------
Notice of Change 75
-------------------------------------------------------------------------------
14 General 75
Set-off 75
Certificates 75
Prompt performance 75
Discretion in exercising rights 75
Consents 75
Partial exercising of rights 75
No liability for loss 75
Conflict of interest 76
Remedies cumulative 76
Rights and obligations are unaffected 76
Indemnities 76
Variation and waiver 76
Confidentiality 76
Further steps 77
Inconsistent law 77
Supervening legislation 77
Time of the essence 77
Counterparts 77
Serving documents 77
Consent by Obligors 77
Statutory powers 78
-------------------------------------------------------------------------------
15 Governing law, jurisdiction and service of process 78
Definitions 89
Interpretation 89
----------------------------------------------------
Dated 24 February 1999
Deed of Common Terms
("Refinancing")
TXU Australia Holdings Pty Ltd
(as the "Borrower", a "Guarantor" and as an
"Obligor") TXU Australia Holdings
(AGP) Pty Ltd
TXU Australia (LP) No 1 Limited
TXU Australia (LP) No 2 Limited
("Partnership" and as a "Guarantor" and as an
"Obligor")
TXU (No. 8) Pty Ltd
(as a "Guarantor" and as an "Obligor")
TXU Australia Group Pty Ltd and each of the
companies specified in
schedule 1
("Obligors")
TXU Corp.
("TXU")
TXU Australia Holdings (AGP) Pty Ltd
TXU Australia (LP) No. 1 Limited
TXU Australia (LP) No. 2 Limited
TXU Australia Pty Ltd
("Junior Creditors")
Each of the financial institutions specified in
schedule 2
("Financiers")
Each of the financial institutions specified in
schedule 3
("Hedge Counterparties")
Australia and New Zealand Banking Group Limited
("Syndicated Facilities Agent")
ANZ Fiduciary Services Pty Ltd
("Trustee")
Mallesons Xxxxxxx Xxxxxx
Rialto
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Telephone (00 0) 0000 0000
Fax (00 0) 0000 0000
DX 101 Melbourne
Ref: MLB:JLC
7036722_11.DOC
1
--------------------------------------------------------------------------------
Deed of Common Terms (IPO)
Date: 24 February 1999
TXU AUSTRALIA HOLDINGS PTY LTD (ABN 97 086 006 859) having an
office at Level 00, 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx (as "Borrower and as
an "Obligor")
TXU AUSTRALIA HOLDINGS (PARTNERSHIP) LIMITED
PARTNERSHIP a limited partnership formed and
registered under the Partnership Act 1958 of
Victoria, the general partner of which is: TXU
AUSTRALIA HOLDINGS (AGP) PTY LTD (ABN 16 086
014 931) having an office at Level 33, 000
Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx; and the
limited partners of which are: TXU AUSTRALIA
(LP) NO. 1 LIMITED (ARBN 086 406 733), a
company incorporated under the laws of England
and Wales and having its registered office at
Kempson House, Camomile Street, London EC3A
7AN; 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 Kempson House,
Camomile Street, London EC3A 7AN (as the
"Partnership" and as an "Obligor") EACH OF THE
GUARANTORS (as a "Guarantor" and as an
"Obligor")
TXU CORP., a corporation organised under the laws of the State of Texas, United
States of America and having an office at Energy Plaza, 0000 Xxxxx Xxxxxx,
Xxxxxx, Xxxxx 00000, Xxxxxx Xxxxxx xx Xxxxxxx ("TXU")
and TXU AUSTRALIA HOLDINGS (AGP) PTY LTD (ABN
16 086 014 931) having an office at Level 33,
000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx, XXX
XXXXXXXXX (LP) NO. 1 LIMITED (ARBN 086 406
733), a company incorporated under the laws of
England and Wales and having its registered
office at Kempson House, Camomile Street,
London EC3A 7AN 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
Kempson House, Camomile Street, London EC3A
7AN ("as "Junior Creditors")
EACH OF THE FINANCIAL INSTITUTIONS SPECIFIED IN SCHEDULE 1 ("Financiers")
EACH OF THE FINANCIAL INSTITUTIONS SPECIFIED IN SCHEDULE 2 ("Hedge
Counterparties") AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
(ABN 11 005 357 522) having an office at Level 17, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx (in its capacity as facility agent under the Loan Note
Subscription Agreement) ("Syndicated Facilities Agent") ANZ FIDUCIARY
SERVICES PTY LTD (ABN 91 100 709 493) having an office at Level 12, 000
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx, 0000 ( "Trustee")
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27 Interpretation
27.1 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 ("Change in Creditors").
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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 Partnership (as borrowers) as
amended by a deed dated on or about 22 February
2000.
Amending Deed means the Amendment and
Restatement Deed dated on or about 26 February
2004 between, amongst others, the Borrower, the
Obligors, TXU Corp., the Partnership, the
Senior Creditors specified in it, the
Syndicated Facilities Agent, the Trustee and
National Australia Bank Limited.
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.
Asset includes all assets, including, for
the avoidance of doubt, any contract and other
intangible asset and the Torrens Island Power
Station and the Master Hedge Agreement.
Attorney means an attorney appointed by the
Trustee under clause 3.34 ("Delegation by
Trustee").
Australian Accounting Standards means the
accounting standards within the meaning of the
Corporations Act 2001 (C'th) and, where not
inconsistent with those accounting standards
and the Corporations Act 2001 (C'th), 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 TXU), a director,
secretary or an officer whose title contains the word "director", "chief",
"head", "manager", "executive", "counsel", "president" or any agent or attorney
of the Creditor, or a person performing the functions of any of them; and
(b) in the case of an Obligor or TXU, 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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Bill has the meaning it has in the Bills of
Exchange Act 1909 (C'th) and a reference to the
drawing, acceptance or endorsement of, or other
dealing with, a Bill 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 30 June and 31
December in each year commencing on 31 December
2003.
Calculation Period means, in relation to any
Calculation Date, the 12 month period ending on
that Calculation Date.
Completion means, in relation to a project
or development, the point in time at which the
completion tests relating to that project or
development have been satisfied in accordance
with their terms (as varied by agreement
between the parties).
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 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 the Debt Refinance Date) 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;
(iii) the value of the aggregate net assets of all Project Property and Project
Vehicles owned by Restricted Subsidiaries as derived from the financial
statements delivered under clause 6.1(g)(iii);
(iv) the value of the net assets of all Unrestricted Subsidiaries as derived
from the financial statements delivered under clauses 6.1(g)(i) and (ii).
(b) plus the aggregate of Qualifying Subordinated Debt incurred by the TXUA
Parent and the Restricted Subsidiaries.
Consolidated Senior Debt means at any time the
sum of:
(a) the total Amount Owing to the Senior Creditors including any capital
accretions to CPI linked or indexed bonds and CPI swaps calculated on an
accruals basis at the relevant time; and
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(b) the aggregate outstanding principal amount of all other Indebtedness of the
Borrower and Permitted Indebtedness of the TXUA Parent and its Restricted
Subsidiaries on a consolidated basis which is not Junior Debt; but excluding:
(i) any bank guarantee, which has been provided to NEMMCO or VENCorp which has
not been drawn; and
(ii) any Non-Recourse Debt;
For the avoidance of doubt and to
ensure there is no double counting,
if any Amount Owing or Indebtedness
referred to in paragraphs (a) or (b)
is guaranteed, the Indebtedness under
the guarantee is not included in this
definition in addition to the Amount
Owing or Indebtedness.
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 or whilst the liability is being 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 Act 2001 (C'th).
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 and legal counsel.
CPI means a consumer price index or other
general index of prices and includes the
"Weighted Average of the Eight Capital Cities:
All-Groups Index" as maintained and published
quarterly by the Australian Bureau of
Statistics.
CPI linked or indexed bond means
Indebtedness (other than a Derivatives
Transaction), payments in relation to which are
calculated or vary by reference to CPI.
CPI swap means a Derivatives Transaction,
the payments in relation to which are
calculated or vary by reference to CPI.
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.
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Debt Refinance Date means the date notified
as the Debt Refinance Date by the Trustee under
clause 1.1 of the Amending Deed.
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 Bill, debenture, bond, note or other security;
(b) any discount in respect of any receipts or receivables which have been sold
by the TXUA Parent or any of its Restricted Subsidiaries 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 and any interest component on any CPI li indexed bond
facility or any CPI swap;
(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 TXUA
Parent or any of its Restricted Subsidiaries is a party;
(g) Interest, premiums, fees, break costs and any other amounts paid, payable or
incurred by the TXUA Parent or any of its Restricted Subsidiaries under any
Derivative Transaction less Interest, premiums, fees and any other amounts paid,
payable or incurred to the TXUA Parent or any of its Restricted Subsidiaries 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 TXUA Parent or any of its
Restricted Subsidiaries in that Calculation Period.
Deed of Release means a deed in or
substantially in the form of schedule 7.
Deed of Release - Guarantor means a deed in
or substantially in the form of schedule 8.
Deed of Subordination means a deed in or
substantially in the form of schedule 5.
Deed Poll means any deed poll of whatever
name that constitutes Loan Notes under 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 Act) 2001 (C'th); 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.
Directive means:
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(a) a law or treaty; or
(b) an official directive, request, guideline or policy (whether or not having
the force of law) with which responsible financiers generally comply in carrying
on their business.
Distribution Licence means, as the context may
require:
(a) the distribution licence issued by ORG pursuant to the Gas Industry Act 1994
with effect from 11 December 1997, as amended and transferred to TXU Networks
(Gas);
(b) the distribution licence issued to TXU Electricity by ORG pursuant to the
Electricity Industry Act 1993 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 means a date on which any
financial accommodation is provided under
any Senior Finance Document.
Drawdown Notice means a notice under which
financial accommodation is requested under 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 Act 1994, the Electricity
Industry Act 1993 or otherwise) in, over,
appurtenant to or affecting any real property.
EBITDA means, in respect of any Calculation
Period, the earnings of the TXUA Parent and its
Restricted Subsidiaries (including the proceeds
of any claim under a business interruption
insurance policy and any interest earnings but
excluding any earnings from any Project
Activities (other than any actual earnings
based cash payment from any Unrestricted
Subsidiary to a Restricted Subsidiary)) on a
consolidated basis and before:
(a) significant items including, without limitation, sale proceeds from the
disposal of assets and costs arising on the termination of any Derivative
Transaction but excluding for the avoidance of doubt gains or losses arising
from energy trading;
(b) Debt Service;
(c) income tax; and
(d) depreciation and amortisation.
Economic Interest means any direct or (through
interposed persons or otherwise) indirect
interest, and includes Equities in a person or
contractual or other legally binding relations
with a person under a participation or revenue
or profit sharing agreement in connection with
a project or development.
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 7.2 ("Consequences of default") or a demand for payment under the
Guarantee;
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(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
(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.
Equity means any stock, share, unit or other
equity interest.
ESC means the Essential Services Commission
established under the Essential Services
Commission Act 2001 (Vic).
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 7 ("Events of Default").
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Facility means the facility provided under
the Loan Note Subscription Agreement.
Finance Document means any Senior Finance
Document, any Junior Finance Document, any
other document which an Obligor and the Trustee
agree in writing is to be a Finance Document
and any other instrument connected with any of
them.
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 Act 2001 (C'th) (in the case of a
body corporate incorporated in Australia) and
any other information necessary to give a true
and fair view.
Financial Year means each 12 month period
ending on 31 December in each year.
Financier means each financial institution
specified in schedule 1 and any other person
who becomes or has become a Senior Creditor in
accordance with clause 14 ("Change in
Creditors") on or after the date of the
Amending Deed, but does not include a Senior
Creditor in its capacity as the Trustee, an
agent for Financiers, a Hedge Counterparty or a
Transactional Bank.
Fixed Date means the day by which the
Trustee determines that it has been instructed
to give a notice under clause 7.2(a).
General Partner means TXU Australia Holdings
(AGP) Pty Ltd (ABN 16 086 014 931).
Generation Asset means any asset utilised or
employed in the generation of electricity.
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 Essential Services
Commission).
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Group means the TXUA Parent and its
Subsidiaries.
GST has the meaning given to it in section
195-1 of the A New Tax System (Goods and
Services Tax) Act 1999.
Guarantee means the IPO Guarantee.
Guaranteed Money has the meaning given to
that term in the Guarantee.
Guarantor means each of:
(a) the TXUA Parent;
(b) TXU8;
(c) TXUA;
(d) each Restricted Subsidiary that, as at the IPO Effective Date, is a TXU8
Borrower (except in the case of any Restricted Subsidiary that the Borrower has
demonstrated to the reasonable satisfaction of the Trustee is Dormant or
Inactive); and
(e) each Material Operating Subsidiary that accedes to the IPO Guarantee from
time to time as required by clause 6.1(cc) ("Guarantee") of this deed,
unless the person has been released from the
Guarantee in accordance with this deed.
For the purposes of this definition,
"Dormant" or "Inactive" is taken to mean in
relation to a Subsidiary of the TXUA Parent, a
Subsidiary which does not own any assets
(others than assets relevant to its status as a
body corporate and which have a nominal value
and other than shares in another Dormant or
Inactive Subsidiary) and which does not conduct
or carry on any business activities.
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 Holdco, TXU
Electricity or the Partnership and any Hedge
Counterparty or other financial institution
from time to time.
Hedge Counterparty means each identified
financial institution specified in schedule 2
and any person (other than the Partnership,
Holdco or TXU Electricity) who is a party to a
Hedge Agreement and who becomes or has become a
Senior Creditor in accordance with clause 14
("Change in Creditors") of this deed.
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:
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M to M is the result of the mark 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
Partnership, Holdco or TXU
Electricity (as the case may be) to
the Hedge Counterparty and a negative
number if it represents a liability
of the Hedge Counterparty to the
Partnership, Holdco or TXU
Electricity (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 Partnership,
Holdco or TXU Electricity (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 Partnership, Holdco or TXU
Electricity (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 Partnership, Holdco and
TXU Electricity 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 Partnership, Holdco or TXU
Electricity or a receiver or liquidator appointed to the Partnership, Holdco or
TXU Electricity or any other person of a payment or discharge in respect of any
of 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.
Hedging Policy means the hedging policy of the
Group under which the Borrower will notionally
allocate interest-bearing Indebtedness of the
Group against either the assets used in the
Networks Business or against other assets ,
subject to the following provisos:
(a) at least 50% of Interest on Indebtedness allocated to Networks Business
assets shall be hedged to correspond with the periodic Networks Business tariff
reviews (whereby interest rates applied to the tariffs are currently reset every
5 years); and
(b) at least 50% of Interest on Indebtedness allocated to other assets
shall be fixed for a period of at least three years.
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Holdco means TXU Australia Holdings Pty Ltd
(ABN 97 086 006 859).
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) Bill, bond, debenture, note or similar instrument including any accretion to
principal (calculated on an accruals basis) under the terms of any CPI linked
indexed bonds;
(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;
(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 including any accretion to principal under the terms
of any CPI swaps; 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:
(a) 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
(b) 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
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(c) all Easements.
Infrastructure Asset 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
(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.
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.
IPO means the initial public offering of
shares by the TXUA Parent or the Borrower.
IPO Effective Date means the date notified by
the Trustee under clause 5.1 of the Amending
Deed to be the IPO Effective Date.
IPO Guarantee means the guarantee and indemnity
dated on or before the IPO Effective Date by
each Guarantor in favour of the Trustee.
13
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Junior Creditor means each of:
(a) the General Partner and each of the Limited Partners;
(b) TXU; and
(c) any other person who is owed Qualifying Subordinated Debt or Subordinated
Guarantee Debt.
Junior Debt means each of:
(a) the TXU Subordinated Loan;
(b) the Subordinated Convertible Loan;
(c) 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
(d) any Subordinated Guarantee Debt.
Junior Finance Document means the TXU
Subordinated Loan, the Subordinated Convertible
Loan, 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.
Licence means the:
(a) distribution licence issued pursuant to the Gas Industry Act 1994 (Vic) with
effect from 11 December 1997, as amended and transferred to TXU Networks (Gas);
(b) distribution licence issued to TXU Electricity pursuant to the Electricity
Industry Act 1993 (Vic) in effect from 3 October 1994, as amended;
(c) gas retail licence issued pursuant to the Gas Industry Act 1994 (Vic) with
effect from 11 December 1997, as amended and transferred to TXU Pty Ltd;
(d) electricity retail licence issued to TXU Electricity pursuant to the
Electricity Industry Act 1993 (Vic) with effect from 3 October 1994, as amended;
(e) generation licence issued to TXU (South Australia) Pty Ltd in relation to
the Torrens Island Power Station pursuant to the Electricity Act 1996 (SA); and
(f) any other Licence granted to any Obligor to replace or substitute any of the
above Licences.
Limited Partners means each of TXU Australia
(LP) No. 1 Limited (ARBN 086 406 733) and
TXU Australia (LP) No. 2 Limited
(ARBN 086 406 724).
Limited Recourse Debt means Project Debt
incurred by a member of the Group which, as a
matter of contract, binding all relevant
parties at the time it is incurred and at all
times before Completion:
(a) will automatically become Non-Recourse Debt upon Completion; or
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(b) the member of the Group will cease to be liable to pay or repay upon
Completion (and no other member of the Group becomes so liable unless the debt
is Non-Recourse Debt),
in either case, without the need for any
further act of or by any party.
If, for any reason:
(c) at any time before Completion, the condition described in (a) or (b) (as the
case may be) ceases to apply; or
(d) at Completion, the debt does not become Non-Recourse Debt, or a member of
the Group remains liable to pay or repay the debt (as the case may be); or
(e) at any time after Completion, the debt either ceases to be Non-Recourse Debt
or a member of the Group becomes liable to pay it (as the case may be); or
(f) despite Completion not having occurred within the terms of the relevant
document, the relevant party or parties either deem Completion to have occurred
or waive the requirement to satisfy the terms of the relevant document regarding
the concept of Completion,
then the debt will automatically at that time
cease to be "Limited Recourse Debt".
Loan Note has the meaning given to that term in
any Senior Finance Document.
Loan Note Subscription Agreement means the loan
note subscription agreement between the
Borrower, the Financiers (as defined in that
agreement) and the Syndicated Facilities Agent
dated on or about the date of the Amending
Deed.
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.
Master Hedge Agreement means the master hedge
agreement between TXU Electricity and AES
Transpower Holdings Pty Ltd dated 6 May 1999.
Material Adverse Effect means a material
adverse effect on:
(a) the legality, validity or enforceability of a Finance Document; or
(b) an Obligor's ability to observe its obligations under any Finance Document;
or
(c) the rights of a Senior Creditor under a Senior Finance Document.
Material Operating Subsidiary means each
Subsidiary of the TXUA Parent (other than the
Borrower) which, has not been designated as an
Unrestricted Subsidiary and;
15
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(a) contributes or in the current or following Financial Year is likely to
contribute more than 10 % of the EBITDA of the TXUA Parent and its Restricted
Subsidiaries; or
(b) the book value of the assets of which are more than $100,000,000 provided
that the value of any shares held by any Restricted Subsidiary in any other
Subsidiary shall not be included for the purposes of this definition,
unless the Subsidiary has been released from
its obligations under this deed in accordance
with this deed. For the avoidance of doubt as
at the IPO Effective Date each of TXU
Electricity, TXU Pty Ltd, TXU Networks (Gas),
TXU Gas Storage and TXU (South Australia) Pty
Ltd is a Material Operating Subsidiary.
MSO Rules has the meaning given in the Gas
Industry Act 1994.
National Electricity Code has the meaning
given to the word "Code" in the National
Electricity Law.
NEMMCO means the National Electricity Market
Management Company Limited
(ABN 94 072 010 327).
Networks Business means that part of the Core
Business which involves the transmission and
distribution of energy products by utilisation
of the Infrastructure and ancillary assets.
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 3.
New Obligor Accession Deed means a deed in
or substantially in the form of schedule 6.
Non-Recourse Debt means any Project Debt if,
and for so long as:
(a) the person to whom the Project Debt is owed (or any agent or trustee on that
person's behalf) does not have recourse (whether by way of execution, set-off or
otherwise) to any member of the Group or its assets for the payment or repayment
of the Project Debt other than to assets which the Security Interest ("Project
Securities") securing that Project Debt are permitted to extend to under item
(g) of the definition of Permitted Security Interest (that person, and any agent
or trustee on that person's behalf, being a "Non-Recourse Finance Party"); and
(b) the Non-Recourse Finance Party may not seek to wind up or place into
administration, or pursue or make a claim in the winding up or administration
of, any member of the Group to recover or to be repaid that Project Debt; and
(c) the Non-Recourse Finance Party cannot obtain specific performance or a
similar remedy with respect to any obligation of a member of the Group to pay or
repay that Project Debt; and
(d) the Non-Recourse Finance Party and any receiver, receiver and manager, agent
or attorney appointed under the Project Securities, may not incur a liability on
behalf of, or for the account of, a member of the Group which liability itself
is not subject to the above paragraphs as if references to Project Debt in those
paragraphs included that liability.
It includes any Project Debt if:
16
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(e) all or substantially all of the assets of the only Group member or members
to which the Non-Recourse Finance Party may have recourse for the payment or
repayment of that Project Debt, comprises assets encumbered by Project
Securities; and
(f) where the Non-Recourse Finance Party may have recourse to assets of other
Group members which are subject to Project Securities but which do not fit the
description in (e), such Project Debt would otherwise comprise Non-Recourse Debt
under paragraphs (a) to (d) inclusive above.
Obligor means:
(a) the Partnership;
(b) the Borrower;
(c) the TXUA Parent and each of the other Guarantors; and
(d) 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.
For the avoidance of doubt, the parties
agree that TXU is not an Obligor.
ORG means the Office of the
Regulator-General established under the Office
of the Regulator-General Act 1994 (Vic) or its
equivalent established in any jurisdiction
other than Victoria.
Partnership means the TXU Australia Holdings
(Partnership) Limited Partnership, comprised of
the General Partner and the Limited Partners.
Partnership Deed means the deed dated 27
January 1999 between the General Partner and
the Limited Partners establishing the
Partnership, as amended by deeds dated 23
February 1999, 16 May 2000 and 31 May 2000.
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;
(b) the disposal of assets in exchange for other assets of comparable value and
utility;
(c) any disposal of an asset provided that the aggregate value of all assets
disposed of by the TXUA Parent or any of its Restricted Subsidiaries in any
Financial Year (excluding disposals permitted under any other paragraph of this
definition) does not exceed 10% of the total assets of the TXUA Parent and its
Restricted Subsidiaries (as measured by reference to the audited consolidated
Financial Statements for the previous Financial Year);
(d) any disposal of an asset which would not comply with paragraph (c) of this
definition, provided that the aggregate value of all such assets disposed of by
the TXUA Parent and its Restricted Subsidiaries in any Financial Year (excluding
disposals permitted under any other paragraph of this definition) does not
exceed 20% of the total assets of the TXUA Parent and its Restricted
Subsidiaries (as measured by reference to the audited consolidated Financial
Statements for the previous Financial Year); and provided that the proceeds of
disposal are:
(i) used to repay all or part of the Amount Owing to the Senior Creditors; or
17
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(ii) otherwise utilised in the Core Business, and such proceeds are not
available to make distributions to shareholders of the TXUA Parent or payments
on Qualifying Subordinated Debt;
(e) disposals and acquisitions within the Group between Obligors;
(f) disposals of assets in the ordinary course of business.
Permitted Indebtedness means in relation to the
Obligors and the Restricted Subsidiaries:
(a) any Indebtedness incurred by the Borrower or the Guarantors; or
(b) any Indebtedness of the Partnership under or in relation to:
(i) the Partnership MTNs, being the:
(B) $275 million of credit wrapped floating
rate medium term notes maturing on
September 2007; and
(C) $200 million of credit wrapped fixed
rate medium term notes maturing on
September 2005;
(i) any commercial paper issued by the Partnership under the commercial paper
programme existing as at the date of the Amending Deed provided all such
commercial paper is fully repaid by 31 December 2004;
(ii) the MBIA Reimbursement Agreement dated 11 September 2000 between the
Partnership, the Borrower, TXU8 and MBIA Insurance Corporation;
(iii) the Partnership 144A Notes being the notes issued by the Partnership under
the Indenture dated 15 August 2000 between the Partnership and the Bank of New
York, as trustee, comprising:
(A) US$92,250,000 of 6.75% Senior Notes
due 2006; and
(B) US$60,000,000 of 7.25% Senior Notes
due 2016;
(iv) the Subordinated Loan Agreement dated 27 March 2002 between the
Partnership and TXU Corp.;
(v) the Subordinated Convertible Loan Agreement dated 13 March 2003 between the
Partnership (as borrower) and the Limited Partners and the General Partner (as
lenders);
(vi) any Hedge Agreement in place solely to manage the interest rate and
currency exposure of the Partnership under the Indebtedness of the Partnership
referred to in this paragraph (b); or
(vii) the ALP Loan Agreement; or
(b) any Indebtedness by a Restricted Subsidiary arising from a Project Debt
other than any Indebtedness used to refinance any assets which as at the date of
the Amending Deed are owned by the TXUA Parent or its Restricted Subsidiaries;
or
(c) any other Indebtedness approved in writing by the Trustee (acting upon the
instructions of the Majority of Senior Creditors); or
18
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(d) any Indebtedness under any Transactional Banking Agreement or any equipment
lease incurred by a Restricted Subsidiary, provided that any such Indebtedness
shall not in aggregate at all times exceed $1,000,000; or
(e) any guarantee and/or indemnity issued by the Partnership or any Restricted
Subsidiary to a third party in relation to the obligations of Retail Energy
Market Company Limited (ABN 15 103 318 556) provided that the aggregate
liability under such guarantees and/or indemnities do not exceed $20,000,000.00.
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 without penalty or which are Contested Taxes;
(b) any Security Interest imposed by statue or arising by operation of law in
the ordinary course of business which does not secure Indebtedness;
(c) 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;
(d) any Security Interest, or any netting or set-off arrangement, in respect of
deposits of money or property, by way of security:
(i) for the performance of any statutory obligation arising in the ordinary
course of business; or
(ii) in the ordinary course of the Group's banking arrangements for the purpose
of netting debit or credit balances;
(e) this deed;
(f) any right of set off arising in favour of NEMMCO or VENCorp over cash
deposits, bank guarantees or similar instruments lodged by any Obligor;
(g) any Security Interest to secure the payment or repayment of a Limited
Recourse Debt or a Non-Recourse Debt with respect to a project or development,
provided that such a Security Interest does not extend to any assets of a Group
member other than:
(i) a Group member's Project Property in respect of the project or development;
(ii) all or any part of the Economic Interest of a member of the Group in a
Project Vehicle and the rights and proceeds derived from that Economic Interest
if:
(A) the assets of the Project Vehicle
form part of or are directly
connected with the project or
development;
(B) those assets comprise all or
substantially all of the assets of
the Project Vehicle; and
(C) where that Economic Interest of the
member of the Group which has created
or proposed to create the Security
Interest is an indirect Economic
Interest held through interposed
persons, the Economic Interest
of each of those interposed persons
in the Project Vehicle comprises
all or substantially all
of the assets of that person;
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(iii) any other assets of the Group member referred to in paragraph (g)(i) or
(ii) if that other asset has a market value of less than A$30,000,000; or
(iv) any combination of the assets, Economic Interest, rights and proceeds
referred to in (g)(ii)(A), (B) or (C) above;
(h) any collateralisation or transfer of assets, or agreement to do the same by
way of credit support for the obligations of an Obligor in relation to a margin
call component of a Derivative Transaction;
(i) any other Security Interest to secure the performance of tenders, bids,
leases, statutory obligations, surety and appeal bonds, Governmental Agency
contracts, performance and return-of money bonds and other similar obligations
incurred in the ordinary course of business (except as security for
Indebtedness);
(j) any Security Interest securing amounts in connection with workers'
compensation, unemployment insurance and other types of social security;
(k) any Security Interest on or over all or any part of the interest of any
member of the Group in any joint venture to secure that member's obligations and
liabilities to its co-venturers and/or the manager or operator of the joint
venture or their agent, including the revenues and assets derived by the member
from, or employed by the member in, the joint venture, in favour of its
co-venturers;
(l) any Security Interest to secure Indebtedness in which a member of the Group
has paid money or deposited securities with a trustee or depository pursuant to
a defeasance arrangement relating to any Indebtedness comprising capital markets
instruments issued by any member of the Group; and
(m) 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.
Project Activity means:
(a) the acquisition, development, construction, extension, expansion or
improvement of any asset in which no member of the Group has any Economic
Interest as at the Debt Refinance Date; or
(b) the development, construction, extension, expansion or improvement of any
asset in which a member of the Group has, at the date of the Amending Deed, an
Economic Interest but in respect of which none of those activities have
commenced as at the Debt Refinance Date.
Project Debt means, with respect to a project or development:
(a) Indebtedness comprising all or a substantial part of the price and/or cost
of Project Activities in connection with a project or a development; or
(b) Indebtedness incurred:
(i) before or at the time of carrying out of Project Activities; or
(ii) within 270 days of completion of the last of the Project Activities in
connection with the project or development,
20
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solely for the purpose of financing
or refinancing all or a substantial
part of the price and/or cost of the
Project Activities in connection with
the project or development; or
(c) any Indebtedness incurred solely to refinance any of the above Indebtedness
or incurred under any successive refinancing; or
(d) any liabilities under Derivative Transactions entered into in connection
with any of the above Indebtedness or any Project Activity; or
(e) interest or amounts in the nature of interest, charges, fees, costs of any
nature (including break costs or costs arising from changes in law), duties,
expenses, currency indemnities, withholding taxes, indirect taxes and other
similar indebtedness (however described) which, in any case, is or are incurred
or payable in connection with any of the above; or
(f) any guarantee or indemnity securing payment or repayment of any of the above
amounts (but not any other Indebtedness),
but does not for the avoidance of doubt
include, (without the consent of the Trustee,
acting upon the instructions of the Majority
of Senior Creditors) any Indebtedness which is
used to refinance any assets which as at the
date of the Amending Deed are owned by the
TXUA Parent or its Restricted Subsidiaries.
Project Property means a Group member's assets used solely or predominantly in,
or generated by, any Project Activities for a project or development including:
(a) assets forming part of or connected with or derived from that project or
development; and
(b) proceeds derived from other Project Property relating to that project or
development.
Project Vehicle means an entity which is established for the purposes
of, and confines its business operations solely to, owning or producing Project
Property, carrying out Project Activities and incurring Project Debt.
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 Borrower
or of the TXUA Parent 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
(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.
21
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Recovered Money means the aggregate amount
received in accordance with clause 9
("Distribution of Recovered Money") 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
("Distribution of Recovered Money").
Related Entity has the meaning it has in the
Corporations Act 2001 (C'th).
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 ("Funds before acting").
Relevant Senior Debt means, in respect of a
Senior Creditor, the Senior Debt in respect of
that Senior Creditor.
Required Restricted Subsidiary means any
Subsidiary of the TXUA Parent that is from time
to time designated as or deemed to be a
"Required Restricted Subsidiary" pursuant to
clause 6.5 ("Restricted and Unrestricted
Subsidiary Undertakings").
Restricted Subsidiary means any Subsidiary
of the TXUA Parent that is designated from time
to time as, or deemed to be, a "Restricted
Subsidiary" pursuant to clause 6.5 ("Restricted
and Unrestricted Subsidiary Undertakings") and
includes, for the avoidance of doubt, any
Required Restricted Subsidiary.
Review Event occurs if the TXUA Parent or
the Borrower becomes a Subsidiary of any entity
other than TXU Corp.
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 Syndicated Facilities Agent;
(c) each Financier;
(d) each Hedge Counterparty;
(e) each Transactional Bank; and
(f) any other person who has provided Indebtedness (which does not constitute
Subordinated Indebtedness) to the TXUA Parent or any of its Restricted
Subsidiaries 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 ("Change in Creditors").
22
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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 Amending Deed;
(c) the Loan Note Subscription Agreement;
(d) each Deed Poll;
(e) the Loan Notes;
(f) the Working Capital Facility Agreement;
(g) each Transactional Banking Agreement;
(h) the IPO Guarantee;
(i) each Hedge Agreement to which a Hedge Counterparty is a party;
(j) any document nominated as a Senior Finance Document in any New Creditor
Accession Deed; and
(k) 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 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 Convertible Loan means all
Indebtedness of the Partnership to the General
Partner and the Limited Partners under the
Subordinated Convertible Loan Agreement between
TXU Australia (LP) No. 1 Limited, TXU Australia
(LP) No.2 Limited, TXU Australia Holdings (AGP)
Pty Ltd (as lenders) and the Partnership (as
borrower), dated 13 March 2003.
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:
23
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(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 Act 2001 (C'th); or
(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 the Partnership, a corporation which is owned or controlled
by the Partnership,
and for the purposes of the Transaction
Documents, the Partnership will be deemed to be
a Subsidiary of the TXUA Parent and a "body
corporate" for the purposes of part 1.2
division 6 of the Corporations Act 2001 (C'th).
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.
Syndicated Facilities Agent means Australia
and New Zealand Banking Group Limited (ABN 11
005 357 522) or any successor agent appointed
by the relevant Financiers under the Loan Note
Subscription Agreement from time to time.
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.
Torrens Island Power Station means the
Torrens Island electricity generating power
stations A and B located at Torrens Island,
South Australia and leased by TXU (South
Australia) Pty Ltd under a lease from a South
Australian Governmental Agency.
24
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Total Assets means the aggregate of all assets
current and non-current of the TXUA Parent and
its Restricted Subsidiaries (excluding Project
Property and any Economic Interest in any
Project Vehicle).
Total Capitalisation means, in relation to the
TXUA Parent and its Restricted Subsidiaries and
with respect to any Calculation Period ending
on a Calculation Date, the aggregate of
Consolidated Net Worth and Consolidated Senior
Debt.
Total Group Assets means the aggregate of all
of the non-current assets (less receivables,
deferred expenses, prepayments and future
income tax benefits but including positive
goodwill) of the TXUA Parent and its Restricted
Subsidiaries (excluding Project Property and
any Economic Interest in any Project Vehicle)
on a consolidated basis.
Total Network Assets means the aggregate of all
of the non-current assets (less receivables,
deferred expenses, prepayments and future
income tax benefits but including positive
goodwill) of the TXUA Parent and its Restricted
Subsidiaries (excluding Project Property and
any Economic Interest in any Project Vehicle)
on a consolidated basis which are used to carry
on the Networks Business.
Transaction Documents means each Finance
Document, the Partnership Deed, 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 provides 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
(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.
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TXU means TXU Corp., a corporation organised
under the laws of the State of Texas, United
States of America and having an office at
Energy Plaza, 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx
00000, Xxxxxx Xxxxxx xx Xxxxxxx.
TXUA means TXU Australia Pty Ltd (ACN 071
611 017).
TXU8 Borrower means each Restricted
Subsidiary that is a Borrower under the TXU8
Loan Agreement from time to time.
TXUA Parent means TXU Australia Group Pty
Ltd (ABN 96 104 896 497).
TXU Gas Storage means TXU Gas Storage Pty
Ltd (ABN 71 079 089 311) (formerly known as
Western Underground Gas Storage Pty Ltd).
TXU8 means TXU (No. 8) Pty Ltd
(ACN 085 235 776).
TXU9 means TXU (No. 9) Pty Ltd
(ACN 085 235 801).
TXU Electricity means TXU Electricity Limited
(ACN 064 651 118) (formerly known as Eastern
Energy Limited).
TXU Electricity 144a Notes means the notes
issued by TXU Electricity under the Indenture
dated 1 December 1996 between TXU Electricity
and The Bank of New York, as trustee, and which
are still outstanding comprising US$157,750,000
6.75% Senior Notes due 2006 and US$40,050,000
7.25% Senior Notes due 2016.
TXU8 Loan Agreement means the agreement dated
on or about 22 February 2000 between TXU8 (as
lender) and the TXU8 Borrowers (as borrowers).
TXU Networks (Gas) means TXU Networks (Gas)
Pty Ltd (ABN 43 086 015 036) (formerly known as
Westar Pty Ltd).
TXU Pty Ltd means TXU Pty Ltd (ABN 99 086
014 968) (formerly known as Kinetik Energy Pty
Ltd).
TXU Subordinated Loan means all Indebtedness
of the Partnership to TXU under the
Subordinated Loan Agreement between TXU (as
lender) and the Partnership (as borrower) dated
27 March 2002.
TXU Torrens Island means TXU Torrens Island Pty
Ltd (ABN 67 081 074 197)
Unrestricted Subsidiary means any Subsidiary
of the TXUA Parent that is designated as or
deemed from time to time to be an "Unrestricted
Subsidiary" pursuant to clause 6.5 ("Restricted
and Unrestricted Subsidiary Undertakings).
VENCorp means Victoria Energy Networks
Corporation, a statutory authority incorporated
under the Gas Industry Act 2001 (Vic).
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Working Capital Facility Agreement means the
agreement of that name between the Borrower,
Australia and New Zealand Banking Group Limited
and Commonwealth Bank of Australia dated on or
about the date of the Amending Deed.
27.2 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;
(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.
27.3 Headings are inserted for convenience and do not affect the
interpretation of this deed.
27.4 If a Senior Finance Document requires or permits any act, matter or
thing to be done by the Partnership, 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 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.
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28 Declaration of trust
28.1 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.
28.2 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.
28.3 The perpetuity period applicable to the trust established under this
deed is the period of 80 years commencing on the date
of this deed.
28.4 The trust established under this deed is to be known as the
TXU Australia Holdings Trust.
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29 Duties, Powers and Rights of Trustee
Authority of Trustee
29.1 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
29.2 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.
To the extent permissible by law, each Senior
Creditor acknowledges that the Trustee has no
obligations, duties or responsibilities except
those expressly set out in the Senior Finance
Documents.
Senior Creditors bound
29.3 Without limiting the liability of the Trustee contemplated by clause
3.19 ("Exoneration of Trustee"), 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 ("Duties, Powers and Rights of
Trustee") 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
29.4 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
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(c) has a fiduciary duty to, or other fiduciary relationship with,
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
29.5 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 ("Matters
requiring instructions from all Senior Creditors"),
3.7 ("Matters requiring instructions from a Majority
of Senior Creditors") or 3.8 ("Matters requiring
instructions from relevant Senior Creditors") (as the
case may be); and
(b) take the action contemplated (including, without
limitation, Enforcement Action) if, and only if, it
receives clear instructions to do so from:
(i) all of the Senior Creditors (but in the case of a
Senior Creditor that is a Financier, only a Financier
to whom there is any Amount Owing, or who has a
commitment to provide Indebtedness (even if subject
to conditions) under any Senior Finance Document, at
the relevant time) - on matters listed in clause 3.6
("Matters requiring instructions from all Senior
Creditors");
(ii) a Majority of Senior Creditors - on matters listed in
clause 3.7 ("Matters requiring instructions from a
Majority of Senior Creditors");
(iii) the relevant Senior Creditors - on the matters listed in
clause 3.8 ("Matters requiring instructions from relevant
Senior Creditors"); or
(iv) either all, or a Majority of Senior Creditors - on
matters which the express terms of this deed or the
Amending 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
29.6 The following matters require instructions from all Senior Creditors
(but in the case of a Senior Creditor that is a Financier, only a
Financier to whom there is any Amount Owing, or who has a commitment to
provide Indebtedness (even if subject to conditions) under any Senior
Finance Document, at the relevant time):
(a) a change to clauses 4, 6.6(a), 6.6(b), 6.6(c), 6.6(l), 6.6(m),
6.6(n), 6.7,7.2 or 8 of this deed and to any defined terms
used in those clauses;
(b) subject to clause 6.5(d), a discharge or termination of the
Guarantee or a release of a Guarantor from the Guarantee or of
the Borrower, the Partnership or any Material Operating
Subsidiary (unless the Material Operating Subsidiary is being
disposed of under a disposal of assets permitted by this deed
and the Material Operating Subsidiary does not satisfy
paragraph (a) of the definition of "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 ("Distribution of Received Money");
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(f) a release of any property mortgaged or charged under a
Security Interest granted to the Trustee;
(g) 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; and
(h) a change to the annexures to the Amending Deed which affects
or will affect any matter contemplated by this clause 3.6 or a
change to the Amending Deed (other than the annexures).
Matters requiring instructions from a Majority of Senior Creditors
29.7 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 ("Matters requiring
instructions from all Senior Creditors");
(b) the exercise of the Trustee's rights in its capacity as
trustee in connection with clause 7 ("Events of Default")
(except clause 7.1(a) and clause 7.2(b) in the circumstances
set out in clause 3.8 ("Matters requiring instructions from
relevant Senior Creditors") or clause 8 ("Review Event"));
(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 ("Matters requiring instructions from
relevant Senior Creditors"));
(d) the waiver of any breach or other non-performance of
obligations (other than the obligations referred to in clause
3.8 ("Matters requiring instructions from relevant Senior
Creditors")) 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 Borrower, the
Partnership or an Unrestricted 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 (c) or (d) of the definition of "Permitted
Disposal" and does not contravene clauses 6.6(c)(i) or (ii)
("Negative undertakings - disposal of assets") and the Obligor
does not satisfy paragraphs (a) or (b) of the definition of
"Material Operating Subsidiary"; and
(g) a change to the Amending Deed which affects or will affect any
matter contemplated by this clause 3.7 (other than a change
requiring instructions from all Senior Creditors under clause
3.6(h)).
Matters requiring instructions from relevant Senior Creditors
29.8
(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.
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(b) Any Senior Creditor which is a party to or has the
benefit of a Senior Finance Document or if there is
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, under clause 7.2(b) ("Consequences of
default")) and the Guarantee following an Event of
Default under clause 7.1(a) ("Events of default -
payment") in respect of a payment under that Senior
Finance Document.
(c)
(i) 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.
(ii) If clause 3.8(c)(i) applies, the Trustee can rely on
the relevant agent or trustee as representing the
Senior Creditor and need not inquire into the agent's
or trustee's authority.
Overriding instructions
29.9 In relation to all matters other than those under clauses 3.6 ("Matters
requiring instructions from all Senior Creditors") and 3.8 ("Matters
requiring instructions from relevant Senior Creditors"), 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
29.10 Subject to clause 3.11 ("Trustee actions"), in any case where the
Trustee does not require instructions under clause 3.5 ("After
consultation and instructions") or does not receive instructions or
requests under clause 3.9 ("Overriding instructions"), 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
29.11 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 based upon the information
which it has at the time) of the Senior Creditors taken as a
whole.
Senior Creditor's instructions
29.12 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
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(b) it authorises the Trustee to give any consent or do any other
thing appropriate to carry out the instructions.
Whenever a Senior Creditor gives instructions
which are inconsistent with the instructions
of the Majority of Senior Creditors the Senior
Creditor consents to the Trustee acting in
accordance with the instructions of the
Majority of Senior Creditors despite the
Senior Creditor's instructions (unless it is a
matter requiring instructions from all Senior
Creditors under clause 3.6 ("Matters requiring
instructions from all Senior Creditors") or
relevant Senior Creditors under clause 3.8
("Matters requiring instructions from relevant
Senior Creditors") .
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.
The Trustee need not seek instructions from any
Senior Creditor that is a Financier and to whom
there is no Amount Owing and who has no
commitment (whether or not subject to
conditions) to provide Indebtedness under any
Senior Finance Document, in each case, at the
relevant time.
Trustee's obligations
29.13 The Trustee agrees:
(a) (default and review) to notify each Senior Creditor
of an Event of Default, Potential Event of Default or
Review Event 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
("Matters requiring instructions from relevant
Senior Creditors"); and
(ii)a copy of such notice to each Senior Creditor.
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Trustee's awareness of certain events
29.14 The Trustee is taken not to be aware of an Event of Default, Potential
Event of Default or Review Event 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, Potential Event of Default or Review
Event has occurred; or
(b) the Trustee receives a notice regarding an Event of Default,
Potential Event of Default or Review Event under clause 6.1(l)
("General undertakings - notify details of Event of Default,
Potential Event of Default or Review Event"), stating that
such an Event of Default, Potential Event of Default or Review
Event has occurred.
Trustee may assume compliance
29.15 Until it becomes aware in accordance with clause 3.14 ("Trustee's
awareness of certain events"), the Trustee may assume that no Event of
Default, Potential Event of Default or Review Event has occurred and
that the Obligors are observing all their obligations in connection
with the Senior Finance Documents and need not inquire or investigate
whether that is, in fact, the case.
Limit on disclosure obligations
29.16 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
29.17 The Senior Creditors agree that the Trustee has no obligations, other
than those in clause 3.13 ("Trustee's obligations"), 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
29.18 Each Senior Creditor acknowledges for the benefit of the Trustee and
each of its Related Entities that the Senior Creditor:
(a) has entered into the Senior Finance Documents; and
(b) has made and will continue to make its own independent
investigation of the business, operations, financial condition
and affairs of each Obligor based on documents and information
which it considers appropriate and in this regard each Senior
Creditor acknowledges that the Trustee is not required to
inspect, or keep under review any property or books of any
Obligor; and
(c) has made and will continue to make its own appraisal of the
creditworthiness or status of affairs of each Obligor;
(d) has made its own assessment and approval of the margin, fees
and other return to be obtained under the Senior Finance
Documents;
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(e) has informed itself and will continue to inform itself as to
the performance or observance by any Obligor of its
obligations under the Senior Finance Documents; and
(f) will continue to make its own analysis and decisions (based
upon the documents and information) which seem appropriate at
the time, in taking or not taking any action under the Senior
Finance Documents,
without relying on the Trustee (in whatever
capacity) or any of its Related Entities or on
any other Senior Creditor or on any
representation made by any of them.
Exoneration of Trustee
29.19 Neither the Trustee nor any of its respective directors, officers,
employees, agents, attorneys (including an Attorney) or Related
Entities is responsible or liable to any other party to this deed:
(a) because an Obligor or another Senior Creditor fails to perform
its obligations under the Senior Finance Documents or another
Senior Creditor fails to provide instructions when requested
by the Trustee; or
(b) for the financial condition or solvency of an Obligor; or
(c) because any recital, statement, representation or warranty in
a Senior Finance Document is incorrect or misleading in any
respect; or
(d) for the effectiveness, genuineness, validity, enforceability,
admissibility in evidence or sufficiency of the Senior Finance
Documents or in any certificate or any document referred to in
or provided for in, or received by it, or delivered under or
in connection with the Senior Finance Documents; or
(e) for acting in accordance with the instructions of a Majority
of Senior Creditors or all the Senior Creditors, in accordance
with this deed, or in the absence of instructions in
accordance with clause 3.10 ("Without consultation or
instructions"), or from refraining from acting in accordance
with the instructions of a Majority of Senior Creditors or all
Senior Creditors, in accordance with this deed;
(f) for any loss or damage occurring as a result of the
exercising, failing to exercise or purporting to exercise any
right, power, authority, discretion or remedy of, or conferred
on, the Trustee under the Senior Finance Documents; or
(g) if it acts upon any instruction purported to have been given
by a Majority of Senior Creditors or all Senior Creditors even
though it may subsequently be found that there was some defect
in the instruction or for any other reason the instruction was
not valid or binding upon those Senior Creditors it purports
to bind or upon the Trustee.
Without limiting this clause 3.19 ("Exoneration
of Trustee"), the Trustee is not responsible
nor liable to any other party to this deed for
anything done or not done in connection with
the Senior Finance Documents by the Trustee or
its directors, officers, employees, agents,
attorneys (including an Attorney) 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
directors, officers, employees, agents,
attorneys (including an Attorney) or Related
Entities .
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Failure by the Trustee to act due to lack of
instructions or lack of proper or clear
instructions from a Majority of Senior
Creditors or all Senior Creditors does not in
itself amount to fraud, gross negligence or
wilful misconduct of the Trustee.
Trustee in capacity of a Senior Creditor
29.20 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, obligations, powers and discretions under
the Senior Finance Documents as the other Financiers and Hedge
Counterparties; and
(b) may exercise those rights, powers and discretions and agrees
to observe those obligations independently from its role as
Trustee as if it were not the Trustee.
Trustee dealing in different capacities
29.21 The Trustee or a Related Entity 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,
despite any conflict of interest, as if it were
not the Trustee and without having to account
to the Senior Creditors for any income or other
benefit it derives in doing so.
The Senior Creditors release the Trustee or a
Related Entity from any obligation it might
otherwise have to them in relation to the
matters set out in this clause 3.21 ("Trustee
dealing in different capacities").
Notice of transfer
29.22 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 ("Change in Creditors").
Senior Creditor to pay over amounts received directly
29.23 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 7.2(a) ("Consequences of default") (but not clause 7.2(b)
("Consequences of default")) or clause 8.5 ("Review Event") 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.
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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.
If the Senior Creditor is obliged to make a
payment under this clause 3.23, the Borrower
indemnifies the Senior Creditor against loss
suffered by the Senior Creditor if the
liability of the entity which made the payment
to the Senior Creditor is held to have been
discharged despite the operation of this
clause.
Pro-rata refunds
29.24 If a Senior Creditor who receives an amount referred to in clause 3.23
("Senior Creditor to pay over amounts received directly") 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 ("Distribution of Received Money") 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
29.25 Despite clause 3.23 ("Senior Creditor to pay over amounts received
directly"), where a Senior Creditor recovers an amount in legal
proceedings it has brought as permitted by clause 3.21 ("Restriction on
Senior Creditor's exercising rights"), 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 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 3.21 ("Restriction on Senior Creditor's
exercising rights"), 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
29.26 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.
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Senior Creditors to indemnify against non-payment
29.27 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 Borrower under clause 12
("Costs, charges, expenses and indemnities") 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 3
Business Days of demand from the Trustee.
The Borrower's back-to-back indemnity
29.28 The Borrower indemnifies 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 3.27 ("Senior Creditor's
to indemnify against non-payment").
The Borrower agrees to pay amounts due under
this indemnity to the Trustee on demand from
the Trustee.
Funds before acting
29.29 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 Borrower or any other Obligor
becoming obliged to pay to the Trustee an amount under clause 12
("Costs, charges, expenses and indemnities") 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 ("Matters requiring instructions from
relevant Senior Creditors") or clause 7.2(b) ("Consequences of
default") or clause 8.5 ("Review Event") of this deed) to
place it in funds at least equal to the amount the Trustee
reasonably determines would be the Borrower's 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
29.30 If a Senior Creditor or a Relevant Senior Creditor (as the case may be)
does not fund the Trustee under clause 3.29 ("Funds before acting")
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 3.29 ("Funds before
acting") are taken to be satisfied. Each Senior Creditor agrees that:
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(a) a payment by a Senior Creditor to the Trustee under this
clause 3.30 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.
Borrower's costs obligation not affected
29.31 A payment by a Senior Creditor under clauses 3.27 ("Senior Creditor's
to indemnify against non-payment"), 3.29 ("Funds before acting") or
3.30 ("If a Senior Creditor does not fund") does not relieve the
Borrower of its obligations under clause 12 ("Costs, charges, expenses
and indemnities") or any other Obligor of its obligations under any
corresponding provisions of any other Senior Finance Document.
Compliance may be assumed
29.32 In relation to any act of the Trustee, neither the Obligors nor the
Junior Creditors may 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 Borrower has 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
29.33 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
29.34
(a) The Trustee may employ agents, contractors 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.
(b) The Trustee may act on the opinion, certificate or advice of
or information obtained from, any agent or contractor
appointed by it under this clause 3.34.
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Trustee may rely on communications and opinions
29.35 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
29.36 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 Senior Creditor promptly after it determines that it is
unable to act.
No responsibility for force majeure
29.37 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 3.36 ("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
29.38 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.
Restriction on Senior Creditors exercising rights
29.39 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:
(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 3.29 ("Funds
before acting") 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.
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30 Subordination
Subordination
30.1 Despite any other agreement between a Junior Creditor and an Obligor
but except as permitted by clauses 4.6 ("Junior Creditor Undertakings")
and 4.7 ("Permitted Junior Creditor Payments"), 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
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(c) that Junior Debt is refinanced by Qualifying Subordinated Debt or
Consolidated Senior Debt.
Rights and obligations following an Event
30.2 If an Event occurs, then the Junior Debt is payable immediately.
30.3 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.
30.4 A Junior Creditor may not prove for its Relevant Junior Debt except
following a request from the Trustee under clause 4.3.
30.5 Except as permitted by clause 4.7 ("Permitted Junior Creditor
Payments"), if a Junior Creditor receives or recovers any money on
account of that Junior Creditor's Relevant Junior Debt or any amount is
paid to any person in connection with that Junior Creditor's Relevant
Junior Debt including, without limitation, to an 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
30.6 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, sue for, accept
payment or repayment of (except for demands, suits, payments
or repayments which are permitted under clause 4.7 ("Permitted
Junior Creditor Payments")) or in any way allow by reduction
of an Obligor's assets or otherwise, the discharge,
satisfaction or extinguishment of its Relevant Junior Debt; 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 ("Subordination"); 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
(f) suffer to exist or take a Security Interest to secure payment
of its Relevant Junior Debt; or
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(g) borrow or raise money from or otherwise become indebted to an
Obligor, except in relation to
(i) deposits made with a Junior Creditor, being a deposit
taking financial institution, in the ordinary course of
business; or
(ii) the ALP Loan Agreement; or
(h) convert any Junior Debt into shares in an Obligor.
Permitted Junior Creditor Payments
30.7 So long as:
(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 (or would occur as a result of the relevant
payment),
an Obligor may pay, prepay, repay, satisfy or
discharge, and a Junior Creditor 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 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 and the Junior Creditors may
make demands in respect of, or so as to
establish a liability to pay, any amount so
permitted to be paid.
30.8 Except as permitted by clause 4.7 ("Permitted Junior Creditor
Payments") 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.
30.9 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
30.10 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
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(b) suffer to exist or grant a Security Interest to secure payment
of the Junior Debt; or
(c) directly pay (except for payments or repayments which are
permitted under clause 4.7 ("Permitted Junior Creditor
Payments")) 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 ("Subordination"); 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 ("Subordination"); 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) be the creditor in respect of any borrowing or money raised or
other indebtedness by a Junior Creditor, except in relation
to:
(i) deposits made with a Junior Creditor in the ordinary
course of business; or
(ii) the ALP Loan Agreement; or
(i) convert any Junior Debt into shares in that Obligor.
30.11 Except as permitted under clause 4.7 ("Permitted Junior Creditor
Payments"), 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
30.12 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
30.13 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:
(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;
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(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.
30.14 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; and
(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.
30.15 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.
30.16 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:
(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 bill 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.
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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.
30.17 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
30.18 Each Junior Creditor irrevocably appoints the Trustee and each
Authorised Officer of the Trustee severally as its attorney.
30.19 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
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.
30.20 The Junior Creditor agrees to ratify anything done by an attorney or
its delegate in accordance with clause 4.19 ("Power of Attorney").
30.21 The Junior Creditor may not exercise the right of proof referred to in
clause 4.19 independently of the attorney.
Corporations Act 2001 (C'th)
30.22 This clause 4 ("Subordination") is intended to operate as a "debt
subordination" (as defined in section 563C(2) of the Corporations Act
2001 (C'th)) by each Junior Creditor.
TXU
30.23 The parties acknowledge that the only obligations incurred by TXU in
entering into this deed are as a Junior Creditor and that if the TXU
Subordinated Loan is fully repaid as permitted by this deed, then upon
request in writing from TXU, attaching a certificate from the
Partnership that all moneys owing under the TXU Subordinated Loan have
been fully repaid, the Trustee (without requiring instructions from the
Senior Creditors) shall release TXU as a party to this deed.
Notice to Junior Creditors
30.24 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; or
(b) the occurrence of any Event of Default, Potential Event of Default
or Review Event.
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31 Representations and warranties
Representations and warranties
31.1 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 the
Partnership) 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 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) (consolidated accounts):
(i) the audited consolidated Financial Statements for the
Partnership and its Subsidiaries for the year ended
31 December 2002 given to the Trustee are a true and
fair statement of the financial position of the
Partnership and its Subsidiaries as at the date to
which they are prepared and disclose or reflect all
actual and contingent liabilities as at that date;
and
(ii) thereafter, the most recent audited consolidated
Financial Statements for the Group last given to the
Trustee are a true and fair statement of the
financial position of the Group as at the date they
are prepared and disclose or reflect all of the
actual and contingent liabilities of the Group as at
that date;
(g) (no material change) there has been no change in the
financial position of the Group) since the date to
which the consolidated Financial Statements last
given to the Trustee under (f)(i) or (f)(ii) were
prepared which is likely to have a Material Adverse
Effect; and
(h) (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
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(i) (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
has or is likely to have a Material Adverse Effect;
and
(j) (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 other Restricted Subsidiary or
any of its or their assets before a court,
Governmental Agency, commission or arbitrator which
could reasonably be expected to result in a Material
Adverse Effect; and
(k) (not a trustee) it does not enter into any
Transaction Document as trustee; and
(l) (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
(m) (benefit) it benefits by entering into the
Transaction Documents to which it is a party; and
(n) (solvency) no Insolvency Event has occurred and is
continuing in respect of it or any other Restricted
Subsidiary; and
(o) (Chapter 2E) it has not contravened and will not
contravene sections 208 or section 209 of the
Corporations Act 2001 (C'th) by it entering into any
Transaction Document or participating in any
transaction in connection with a Transaction
Document; and
(p) (no immunity) it has no immunity from the
jurisdiction of a court or from legal process; and
(q) (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
(r) (shareholdings):
(i) the TXUA Parent directly or indirectly owns or
controls all of the issued shares in the Borrower and
each Obligor; and
(ii) the TXUA Parent or the Borrower directly or
indirectly owns and controls all of the issued shares
in each other Obligor (other than TXUA Parent); and
(s) (Obligors) the TXUA Parent, the Partnership, the
Borrower and each Guarantor are Obligors; and
(t) (ranking) its obligations under the Senior Finance
Documents to which it is a party rank in all
respects:
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(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
(ii) in terms of repayment or payment in winding up, in
priority to all Subordinated Indebtedness and other
Junior Debt; and
(u) (taxation) to the best of its knowledge, information
and belief having made due enquiry, the TXUA Parent
and the Restricted Subsidiaries have complied with
all material taxation laws in all jurisdictions in
which they are subject to Taxes, and have paid all
material Taxes due and payable by them, other than
Contested Taxes; and
(v) (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
(w) (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
(x) (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
(y) (Authorisations) all material Authorisations required for the
Core Business:
(i) have been validly issued and obtained; and
(ii) are in full force and effect; and
(z) (no default) no circumstance has arisen or is likely to arise
which, in all the circumstances, is likely to result in the
revocation, cancellation, recision, termination or suspension
of any material Authorisation required for the Core Business
which if revoked, cancelled, rescinded, terminated or
suspended would be likely to have a Material Adverse Effect;
and
(aa) (only conducts the Core Business) it does not carry on any
business activities other than activities in connection with
the Core Business; and
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(bb) (partnership) for so long as the Partnership is an Obligor,
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 Act 1958 of Victoria.
Continuation of representations and warranties
31.2 The representations and warranties in clause 5.1 ("Representations and
warranties") 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(h) ("General
undertakings - compliance certificate") of this deed by reference to
the then current circumstances. Each Obligor agrees to notify the
Trustee of anything that happens that would mean it could not
truthfully repeat all its representations and warranties in clause 5
("Representations and warranties") 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(h) ("General undertakings -
compliance certificate") of this deed by reference to the then current
circumstances. A notification under this clause does not limit the
Trustee's rights under clause 7 ("Events of Default").
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32 Undertakings
General undertakings
32.1 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, Potential Event of Default or
Review Event 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 or whether a Review
Event has occurred; and
(e) (maintain Authorisations) obtain and 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 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 120
days after the end of that Financial Year (other than
in relation to the annual consolidated Financial
Statements referred to in clause 5.1(f)(i) which are
in relation to the Partnership and its Subsidiaries);
and
(g) (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 90 days after the end of that half
year; and
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(i) (special purpose - audited financial statements) give
to the Trustee an audited set of special purpose
financial statements for each of the TXUA Parent's
Unrestricted Subsidiaries for each Financial Year at
the same time as the provision of the audited
consolidated Financial Statements of the Group (under
clause 6.1(f)), provided that where there is a
grouping of Unrestricted Subsidiaries carrying on the
same Project Activity, then such financial statements
shall be provided on a consolidated basis for that
group of Unrestricted Subsidiaries;
(ii) (special purpose - unaudited financial statements)
give to the Trustee an unaudited set of special
purpose financial statements of the TXUA Parent's
Unrestricted Subsidiaries for the first half of each
Financial Year at the same time as the provision of
the unaudited half year consolidated Financial
Statements of the Group (under clause 6.1(g)),
provided that where there is a grouping of
Unrestricted Subsidiaries carrying on the same
Project Activity, then such financial statements
shall be provided on a consolidated basis for that
group of Unrestricted Subsidiaries;
(iii) (Restricted Subsidiaries and Non-Recourse Debt)in the
event that any of the Restricted Subsidiaries incurs
any Non-Recourse Debt, then also give to the Trustee:
(A) an audited set of special purpose financial
statements for each Project Activity of the TXUA
Parent and its Restricted Subsidiaries
for each Financial Year, at the same time as
the provision of the audited consolidated
Financial Statements of the Group for the same
period (under clause 6.1(f)), provided that where
there is a grouping of Restricted Subsidiaries
carrying on the same Project Activity, then
such financial statements shall be provided on
a consolidated basis for that group of Restricted
Subsidiaries; and
(B) an unaudited set of special purpose financial
statements for each Project Activity of the
TXUA Parent and its Restricted Subsidiaries
for the first half of each Financial Year at the
same time as the provision of the unaudited
consolidated Financial Statements of the
Group for the same period (under clause 6.1(g)),
provided that where there is a grouping of
Restricted Subsidiaries carrying on the same
Project Activity, then such financial statements
shall be provided on a consolidated basis for
that group of Restricted Subsidiaries; and
(h) (compliance certificate) give to the Trustee at the same time
as it is required to give the Trustee the audited consolidated
Financial Statements of the Group (under clause 6.1(f)) for
each Financial Year and the unaudited consolidated Financial
Statements of the Group for the first half of each Financial
Year, a certificate which must:
(i) be signed by an Authorised Officer of the Borrower; and
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(ii) set out in reasonable detail the computations and
financial and other information necessary to
establish compliance by the Borrower with the
financial undertakings in clause 6.7 ("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 or Review Event
has occurred and is subsisting; and
(iv) in the case of the certificate delivered in
connection with the Financial Statements of the Group
for the end of a Financial Year, be confirmed in
writing by its auditors as being correct so far as it
relates to compliance by the Borrower with the
financial undertakings in clause 6.7 ("Financial
Undertakings"); and
(v) state that the Partnership, the Borrower and TXU
Electricity are in compliance with their obligations
under clause 6.2 ("Hedge Undertakings"); and
(vi) state who are the Restricted Subsidiaries and
Unrestricted Subsidiaries and in the case of the
Unrestricted Subsidiaries state when they were
designated as Unrestricted Subsidiaries; and
(i) (Financial Statements) ensure that the Financial
Statements and other 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 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
(j) (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
(k) (ensure no Event of Default) do everything within its
powers necessary to ensure that no Event of Default
occurs; and
(l) (notify details of Event of Default, Potential Event
of Default or Review Event) if an Event of Default,
Potential Event of Default or Review Event occurs,
upon becoming aware, notify the Trustee giving full
details of the event and, if applicable, any step
taken or proposed to remedy it; and
(m) (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 the Group or any of
its assets which has or is likely to have a Material
Adverse Effect; and
(n) (constitution) promptly notify the Trustee of any
proposal to materially change its constitution (other
than a change in its constitution which is required
as a result of the IPO); and
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(o) (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 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
(p) (regulatory) provide notice to the Trustee as soon as
it becomes aware of:
(i) any proposed or actual revocation, cancellation,
rescission, termination or suspension of any material
Authorisation required for the Core Business which
has or is likely to have a Material Adverse Effect;
(ii) any material breach of any material Authorisation
required for the Core Business to which it is a party
which has or is likely to have a Material Adverse
Effect; and
(q) (Core Business) engage only in, and continue to
engage only in, activities which relate to the Core
Business; and
(r) (Authorisation) comply with its obligations under all
material Authorisations and take all necessary steps
to remedy any breach of any material Authorisation or
law where such breach has or is likely to have a
Material Adverse Effect; and
(s) (Infrastructure) 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
(t) (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
(u) (laws) comply and procure that all other Restricted
Subsidiaries 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
(v) (Authorisations) promptly obtain, maintain and renew
on time each material Authorisation required for the
Core Business where failure to do so would or is
likely to have a Material Adverse Effect; and
(w) (Taxes) pay when due all Taxes payable by it, other
than Contested Taxes; and
(x) (business) ensure that the business of the Material
Operating Subsidiaries is conducted in a proper and
efficient manner in accordance with prudent business
practices and in accordance with Good Operating
Practice; and
(y) (intellectual property) take all reasonable steps to
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
reasonably required for its business in accordance
with normal prudent business practices; and
(z) (insurance)
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(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):
(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 (but only for failure to
supply which is attributable to the actions or
omissions of an Obligor) 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 in a manner which a prudent person engaged
in a similar business or undertaking to that of the
Obligor would effect; 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;
and
(vii) if requested by the Trustee, provide the Trustee with
copies of all insurance policies and certificates of
insurance in connection with or comprising any of the
properties or assets or liabilities of the Obligors;
and
(viii) 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
(ix) not do or permit anything to be done or fail to do
anything which prejudices any insurance; and
(x) immediately rectify anything which might prejudice
any insurance and immediately reinstate the insurance
if it lapses; and
52
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(xi) not, without the consent of the Trustee or as
otherwise permitted by the above provisions,
materially restrict the coverage under, cancel or
allow to lapse insurance in connection with any of
its property, assets and liability; and
(xii) 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
(aa) (group relations) 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
(bb) (Tax consolidation) ensure that, if a consolidated
group is created in accordance with Part 3 - 90 of
the Income Tax Assessment Act 1997 (Cth) which would
comprise any Obligor, each company in the
consolidated group enters into a tax sharing
agreement that provides for a fair and reasonable
allocation of the tax liabilities of the group; and
(cc) (Guarantee) ensure that at all times:
(i) each Material Operating Subsidiary is a party to the
IPO Guarantee as a Guarantor; and
(ii) the aggregate of the value of all assets current and
non-current (excluding Project Property, any Economic
Interest in any Project Vehicle and any assets which
are the subject of Project Debt or Non-Recourse Debt)
of the Guarantors determined on a consolidated basis
and after eliminating all inter-company transactions
between members of the Group is not less than 90% of
the Total Assets (other than assets which are the
subject of Project Debt or Non-Recourse Debt).
Hedge Undertakings
32.2 The Partnership, Holdco and TXU Electricity each undertake:
(a) (Perform Xxxxxx): to perform and observe all of the
obligations on their part contained in the Hedge Agreements to
which they are a party and in accordance with the Hedging
Policy;
(b) (Mark to market): to adjust the Hedging Agreements they each
have in place at any time, by closing out appropriate Hedge
Agreements and putting new Hedge Agreements in place to ensure
that, within the requirements of the Hedging Policy, each
would not be required under United States or generally
accepted Australian Accounting Standards, to mark to market
the obligations under any one or more Hedge Agreements; and
(c) (Maximum hedging): to 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
32.3 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.
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Notification of Hedge Exposures
32.4 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.
Restricted and Unrestricted Subsidiaries Undertakings
32.5 Each Obligor undertakes that:
(a)
(i) subject to clause 6.5(c), each Subsidiary of which
80% or more of the voting securities or other equity
interests are owned by the TXUA Parent or the
Borrower, or one or more of their Subsidiaries shall
be deemed to be a Restricted Subsidiary; and
(ii) subject to clause 6.5(e), each Subsidiary of the TXUA
Parent or the Borrower which becomes a Material
Operating Subsidiary after the Debt Refinance Date
(unless prior to becoming a Material Operating
Subsidiary, the Subsidiary is deemed or designated as
an Unrestricted Subsidiary in accordance with this
clause 6.5) shall be deemed a Restricted Subsidiary
and a Required Restricted Subsidiary; and
(b) any Subsidiary (including any newly created or
acquired Subsidiary) that is designated in writing by
the Borrower to the Trustee as being a Restricted
Subsidiary at any time shall be a Restricted
Subsidiary;
(c) any Restricted Subsidiary (including any newly
created or acquired Subsidiary) that is not a
Required Restricted Subsidiary may be designated by
the Borrower as an Unrestricted Subsidiary by
delivery of written notice to the Trustee, provided
that:
(i) no such designation shall be effective if immediately
after giving such notice an Event of Default would
occur and be subsisting; and
(ii) no Subsidiary shall have its designation changed from
Restricted Subsidiary to Unrestricted Subsidiary more
than twice; and
(d) any Subsidiary that is not designated as, or deemed
to be, a Restricted Subsidiary pursuant to this
clause 6.5 shall be deemed to be an Unrestricted
Subsidiary and shall be entitled to be released from
this deed as an Obligor and Guarantor (provided the
requirements in clause 6.5(g) "Release of a
Guarantor" are satisfied and would be satisfied after
the release) by the execution of a Deed of Release,
substantially in the form of schedule 7 to this deed
and delivery to the Trustee of two executed
counterparts of the Deed of Release to the trustee
for execution by the Trustee;
(e) as at the date of the Amending Deed:
(i) TXU Pipelines Pty Ltd, TXU Pipelines Holdings Pty Ltd
, TXU Sea Gas SPVI Pty Ltd and TXU Sea Gas SPV2 Pty
Ltd will be deemed to be Unrestricted Subsidiaries;
(ii) each other Subsidiary of the TXUA Parent or the
Borrower is, as at the Debt Refinance Date,
designated as a Restricted Subsidiary; and
(iii)
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(A) each Subsidiary of the TXUA Parent or the
Borrower which from time to time is a
Material Operating Subsidiary (which, for the
avoidance of doubt includes TXU Electricity,
TXU Networks (Gas), TXU (South Australia) Pty
Ltd, TXU Gas Storage and TXU Pty Ltd); and
(B) the TXU Australia Holdings (Partnership)
Limited Partnership, the general partner
of which is TXU Australia Holdings (AGP)
Pty Ltd and the limited partners of which are
TXU Australia (LP) No. 1 Limited and TXU
Australia (LP) No. 2 Limited,
is and will at all times be deemed to be a Required
Restricted Subsidiary;
(f) if the Borrower designates a Subsidiary to be a
Restricted Subsidiary it will procure the Subsidiary
to execute and deliver to the Trustee a New Obligor
Accession Deed agreeing to be bound as an Obligor
under this deed and to provide the Trustee with the
documents, instruments and assurances referred to in
clause 6.6(j)(ii).
(g) Release of a Guarantor
(i) subject to this clause 6.5(g), the Borrower may
request that a Guarantor (other than the TXUA Parent
and any Required Restricted Subsidiary) be released
from its obligations under the Guarantee. The TXUA
Parent cannot (unless agreed by all Senior Creditors)
be released as a Guarantor;
(ii) the Trustee shall notify the Senior Creditors
promptly on receipt of any request by the Borrower
for a Guarantor to be released from its obligations
under the Guarantee;
(iii) a Guarantor (other than the TXUA Parent and any
Required Restricted Subsidiary) shall be entitled to
be released from the Guarantee, if:
(A) after its release, the
undertaking in clause 6.1(cc)
Guarantee") will be complied
with; and
(B) no Event of Default or
Potential Event of Default has
occurred and is subsisting or is
reasonably likely to occur if the
Guarantor was released.
(iv) The Senior Creditors agree that, subject to
satisfying this clause 6.5(g), a Guarantor may be
released as a party to this deed by the execution of
a Deed of Release - Guarantor by the Trustee (who for
those purposes may act without the instructions of
all or any of the Senior Creditors).
(v) If a Guarantor is entitled to be released from the
Guarantee in accordance with this clause 6.5(g)
("Release of a Guarantor"), then:
(A) the Trustee and each other Senior
Creditor authorises the release and
agrees to be bound by a Deed
of Release - Guarantor as if
they were parties to it;
55
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(B) each Senior Creditor authorises the
Trustee to execute the Deed
of Release - Guarantor on
their behalf; and
(C) the relevant Guarantor is
released with effect from the
date the Trustee delivers the Deed
of Release - Guarantor to that
Guarantor.
(vi) Any release of a Guarantor in this deed does not in any way
affect or prejudice the obligations of the remaining
Guarantors.
Negative Undertakings
32.6 Each Obligor undertakes that it will not:
(a) (Encumbrances): create or allow to exist or subsist,
or permit any other Restricted Subsidiaries to 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): without the prior written consent
of the Trustee (acting on the instructions of the
Majority of Senior Creditors), incur any Indebtedness
or permit any Restricted Subsidiary to incur any
Indebtedness other than Permitted Indebtedness; and
(c) (disposals of Assets): in any Financial Year, sell,
transfer or otherwise dispose, or permit any other
Restricted Subsidiary to 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 Distribution Licence
(except a sale, transfer or other disposal from an
Obligor to another Obligor); or
(ii) all or a substantial part of the Total Network Assets
which relate to electricity or all or a substantial
part of the Total Network Assets which relate to gas;
or
(iii) 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:
(i) a copy of the documents relevant to the transaction;
(ii) a satisfactory opinion from an Australian law firm or
accounting firm as to the tax implications of the
transaction;
(iii) 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
(iv) 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
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(d) (securitisation): assign, sub-participate an interest
in, otherwise dispose of, or create or allow to exist
any Security Interest over, or permit any other
Restricted Subsidiary to do any of those things in
respect of, receivables arising from network charges,
or any other receivables or other monetary assets
except for a securitisation programme where:
(i) the proceeds received or receivable by the Group are
applied to permanently repay and reduce Senior Debt;
and
(ii) such securitisation programme constitutes a Permitted
Disposal; and
(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,
or permit any other Restricted Subsidiary to 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:
(i) would be a transaction which would ordinarily be
carried out by a prudent, responsible company
carrying on a similar business; and
(ii) would be in accordance with Good Operating Practice;
and
(g) (Authorisations): agree or consent to any variation
in any material respect of a material Authorisation
required for the Core Business where such variation
has or is likely to have a Material Adverse Effect,
without the prior written consent of the Trustee
(acting on the instructions of the Majority of Senior
Creditors); and
(h) (Variation of Partnership Deed): 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):
(i) vary or allow to be varied; or
(ii) cancel, revoke, surrender or repudiate; or
(iii) terminate, permit the termination of or do anything
or refrain from doing anything which would entitle
any other person to terminate (other than discharge
by performance in accordance with its terms), unless
it is replaced immediately in substantially the same
terms,
the Partnership Deed for so long as the
Partnership is an Obligor; 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 (other than
an Unrestricted 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 (only if it is required to be a Guarantor under clause
6.1(cc) of this deed) agreeing to be bound as an Obligor
under this deed; and
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(ii) 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 (only if it is required to be a Guarantor
under clause 6.1(cc) of this deed) under this deed and; and
(iii) the Subsidiary carries on only activities in connection with
the Core Business; and
(k) (arm's-length terms): enter into any transaction with any
person otherwise than on arm's-length terms and for full
market value; and
(l) (Partnership): in the case of the General Partner and the
Limited Partners (for so long as the Partnership is an
Obligor), resign from, terminate or dissolve the Partnership
or attempt to do so without the prior written consent of the
Trustee; and
(m) (subordinated debt): incur any Subordinated Indebtedness other
than:
(i) the TXU Subordinated Loan;
(ii) the Subordinated Convertible Loan; or
(iii) Qualifying Subordinated Debt; and
(n) (Maintaining the Networks Business):
(i) undertake any sale, transfer, or other disposal of any assets,
or any purchase or other acquisition of any asset, the result
of which would be that the value of the Total Network Assets
as calculated using the most recent audited consolidated
Financial Statements of the TXUA Parent and its Restricted
Subsidiaries (or asset schedule provided with those
statements) would be less than 55% of the value of Total Group
Assets, as calculated using the most recent audited
consolidated Financial Statements (or asset schedule provided
with those statements); and
(ii) in the event that any sale, transfer, or other disposal of any
assets, or any purchase or other acquisition of any asset, may
have the result specified in paragraph (n)(i) above, then the
Obligors will, within 180 days following such event, either
dispose of or acquire such other assets so as to effect
compliance with the requirements of this clause (n); and
(o) (change of constitution): without the prior written consent of
the Trustee, materially change its constitution (other than
any change which is required as part of the IPO), which change
has or is likely to have a Material Adverse Effect.
Financial Undertakings
32.7 The Borrower undertakes to ensure that:
(a) (Gearing ratio): the percentage 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) but
including any capital accretions to or in relation to CPI
swaps at the relevant time calculated on an accruals basis) to
Total Capitalisation is not greater than 65% at all times.
(b) (ICR): the Consolidated Interest Cover Ratio as at
30 June 2004 and each subsequent Calculation Date will be not
less than 1.75.
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(c) (Net Worth): the Consolidated Net Worth will not be less than
$1,300,000,000 at all times.
Changes in Australian Accounting Standards
32.8 Each Obligor undertakes to ensure that:
(a) if Australian Accounting Standards change from time to time
after the Debt Refinance Date so that the financial
calculations required to be made under this deed with respect
to the various undertakings contained in clause 6.7
("Financial Undertakings") are materially affected to the
Borrower's detriment, the Borrower then shall furnish the
Trustee with a certificate of an Authorised Officer of the
Borrower specifying the effective date of such change in
Australian Accounting Standards and describing in reasonable
detail how such change affects the financial calculations,
which shall be confirmed in writing by the Group's auditors;
and
(b) thereafter, the Borrower shall agree in good faith with its
auditors and the Trustee (acting on the instructions of the
Majority of Senior Creditors) the mechanism to amend the
relevant financial covenants levels in clause 6.7 ("Financial
Undertakings") and where necessary any relevant definitions so
that the amended financial covenants are in effect comparable
to the financial covenant levels as at the date of the
Amending Deed. Any such revised covenant levels shall be
furnished by the Borrower to the Trustee in writing and shall
take effect as at the date the Australian Accounting Standards
so changed.
32.9 Each Obligor, the Trustee and the Senior Creditors hereby agree:
(a) to execute any amendment, waiver or other document reasonably
requested by the Borrower and the Trustee (acting upon the
instructions of the Majority of Senior Creditors) evidencing
the amended financial covenant levels described in clause
6.8(b);
(b) that if a change in Australian Accounting Standards results in
the Borrower breaching any of the financial covenants in
clause 6.7 ("Financial Undertakings") which would otherwise
cause a Potential Event of Default or Event of Default to
occur, (at a time when no other Potential Event of Default or
an Event of Default exists), then notwithstanding anything to
the contrary in this deed, no Potential Event of Default or an
Event of Default will be caused by such a change in Australian
Accounting Standards for a period of 180 days following the
change in Australian Accounting Standard which would have
otherwise caused the occurrence of a Potential Event of
Default or an Event of Default.
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33 Events of Default
Events of default
33.1 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
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(b) (breach of financial undertakings): the Borrower
fails at any time to comply with the undertakings in
clauses 6.7(a) ("Financial undertakings - Gearing
ratio") or 6.7(c) ("Financial Undertakings - Net
Worth") or, in respect of undertaking in clause
6.7(b) ("Financial undertakings - ICR"):
(i) the Borrower fails to deliver to the Trustee a
certificate of compliance on the due date as required
by clause 6.1(h) ("General undertakings - 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 Borrower is in breach of the
undertaking in clause 6.7(b) ("Financial undertakings
- ICR"); or
(iii) the Borrower gives notice to the Trustee of a breach
of its undertaking in clause 6.7(b) ("Financial
undertakings - ICR"); or
(iv) the Trustee gives notice in writing to the Borrower
that it is in breach of the undertaking in clause
6.7(b) ("Financial undertakings - ICR") and the
Borrower is in fact in breach of that undertaking; or
(c) (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) or (b) above) and
the 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
(d) (cross default): any Indebtedness of the TXUA Parent
or any Restricted Subsidiary (other than any
Qualifying Subordinated Debt or Non-Recourse Debt)
exceeding in aggregate $20,000,000 (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
(e) (execution against property): execution of a court
order or other legal right is levied and not stayed,
withdrawn or satisfied within 30 days of being made
or a judgment is enforced or an order or Security
Interest (other than in respect of Limited Recourse
Debt or Non-Recourse Debt) is enforced, or becomes
enforceable, against any property of the TXUA Parent
or any Restricted Subsidiary for an amount exceeding
$10,000,000; or
(f) (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
(g) (Insolvency Event): an Insolvency Event occurs in
respect of the TXUA Parent or any Restricted
Subsidiary except in the case of a members voluntary
winding up or a voluntary deregistration or
dissolution of a Restricted Subsidiary which owns no
assets and is solvent; or
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(h) (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 as permitted by paragraph (i)
("reduction of capital") to effect a members
voluntary winding up or to deregister, dissolve,
reconstruct or amalgamate while solvent on terms
approved by the Trustee; or
(i) (reduction of capital): an Obligor (other than the
Borrower or the TXUA Parent) takes action to reduce
its capital or passes a resolution referred to in
section 254N of the Corporations Act 2001 (C'th), in
either case without the prior written consent of the
Trustee provided that a reduction of capital in
relation to shares held by the Borrower in TXUA to
facilitate the payment of any portion of the Amount
Owing to a Senior Creditor shall be permitted; or
(j) (share buy-back): an Obligor (other than the Borrower
or the TXUA Parent) 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 Act 2001 (C'th), 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 Borrower in
TXUA 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 Act 2001 (C'th) have the meanings given to them
in the Corporations Act 2001 (C'th); or
(k) (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
(l) (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 the TXUA
Parent and its Restricted Subsidiaries or any other event or
series of events, whether related or 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 Borrower
receives a notice of such event from the Trustee; or
(m) (investigation): a person is appointed under the Corporations
Act 2001 (C'th) or other companies and securities legislation
to investigate any part of the affairs of the TXUA Parent or
any Restricted Subsidiary which will, or is likely to, result
in a Material Adverse Effect; or
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(n) (seizure): all or any material part of the assets of the TXUA
Parent or any Restricted Subsidiary are seized or otherwise
appropriated by, or custody thereof is assumed by any
Governmental Agency or the TXUA Parent or any Restricted
Subsidiary 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 Borrower has
demonstrated to the reasonable satisfaction of the Trustee
within 30 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
(o) (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
(p) (Authorisation):
(i) a Licence is:
(A) revoked, cancelled, rescinded,
suspended, terminated, allowed to lapse;
or
(B) transferred (except to another Obligor),
and the revocation,
cancellation, rescission,
suspension, termination or
lapsing is not reversed or
itself revoked or a
replacement is not issued or
acquired within 45 days;
(ii) a material Authorisation required for the Core Business
is revoked, cancelled, rescinded, suspended, terminated,
allowed to lapse (and a replacement is not immediately
issued) or transferred (except to another Obligor) which
has or is likely to have a Material Adverse Effect;
(iii) an administrator is appointed to all or any part of the
business of an Obligor under the Gas Industry Act 1994,
or the Electricity Industry Act 1993 or any
corresponding legislation in a jurisdiction other than
Victoria; or
(iv) a material clause in a material Authorisation required
for the Core Business 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
30 days of the Obligor becoming aware of it and, in
respect of a material Authorisation only, where such
voidness or unenforceability has or is likely to
have a Material Adverse Effect; or
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(q) (Partnership Deed void) for so long as the Partnership is an
Obligor, the Partnership Deed or any material provision of the
Partnership Deed is terminated or is or becomes void voidable
or unenforceable; or
(r) (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 7.1 ("Events of default") occurs; or
(s) (Hedge Agreement): an event of default (other than in relation
to the Hedge Counterparty) occurs under a Hedge Agreement
which has not been remedied or waived and which results in an
amount in excess of $20,000,000 (or its equivalent in another
currency) becoming prematurely payable and which:
(i) is not satisfied on time or at the end of any applicable
period of grace; or
(ii) is not discharged when due; or
(iii) is not discharged at maturity or when duly called; or
(t) (Security Interest): any Security Interest is created or
allowed to exist or subsist on any shares held in the Borrower
or the TXUA Parent or a Restricted Subsidiary 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 Borrower
receives a notice of such event from the Trustee.
Consequences of default
33.2 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 Borrower, the Partnership and TXU
Electricity Limited (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 ("Matters requiring
instructions from relevant Senior Creditors"),
declare at any time by notice to the Borrower, the
Partnership and TXU Electricity (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.
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33.3 The Trustee may make either or both of the declarations referred to in
clause 7.2(a) and 7.2(b) ("Consequences of default"). The making of
either of them gives immediate effect to its provisions. The Borrower,
the Partnership, TXU Electricity or other relevant Obligors (in the
case of a Transactional Banking Facility) must pay any amount demanded
in accordance with a demand.
33.4
(a) If the Trustee makes any declaration under clause 7.2
("Consequences of default"):
(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 7.4(a) does not affect the obligations of the Borrower,
the Partnership, TXU Electricity (or other relevant Obligors,
in the case of a Transactional Banking Facility) under clause
7.3.
33.5
(a) After a declaration is made under clause 7.2 ("Consequences of
default"), the relevant Senior Finance Documents may be
enforced (but subject always to clause 7.2 ("Consequences of
default")) 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.
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34 Review Event
34.1 This clause 8 applies if a Review Event occurs.
34.2 The Obligors must notify the Trustee promptly upon becoming aware that
a Review Event has occurred.
34.3 Regardless of whether the Trustee has received a notice under clause
8.2, if a Review Event has occurred, the Trustee will (if instructed by
the Majority of Senior Creditors) notify the Borrower that it has an
option (the "Option") to prepay without penalty (other than amounts
payable under clause 12.2 ("Indemnity")) all Amounts Owing, together
with accrued interest, under the Loan Note Subscription Agreement,
within 90 days after the date of the notice from the Trustee ("Option
Period").
34.4 The Borrower may exercise the Option by giving written notice to the
Trustee not less than 5 Business Days before the date
it intends to make the prepayment.
34.5 If the Borrower does not exercise the Option by the date which is 5
Business Days before the expiry of the Option Period, the Trustee may
(upon the instructions of the Majority of Senior Creditors) by notice
to the Borrower cancel the Facility and declare the Amount Owing under
the Loan Note Subscription Agreement, to be due and payable within 14
days of such notice.
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34.6 Nothing in this clause 8 ("Review Event") shall be construed as
limiting the rights of any Senior Creditor under clause 7.2
("Consequences of default").
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35 Distribution of Recovered Money
35.1 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 7.2(a)
("Consequences of default") or clause 8.5 ("Review Event") but which,
for any reason whatsoever, has not been distributed by the time a
notice is given under clause 7.2(a) ("Consequences of default")) or
clause 8.5 ("Review Event") 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.
35.2 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.
35.3 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.
35.4 Recovered Money is to be distributed by the Trustee as soon as
practicable after the Trustee receives it as follows:
(a) 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;
(b) secondly, towards satisfaction of any other expenses or
outgoings in connection with any receivership
under or the enforcement of any Senior Finance Document;
(c) thirdly, towards payment to the Trustee of any money due
to it in its capacity as Trustee under any
Senior Finance Document;
(d) 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;
(e) 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
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(f) sixthly, the surplus (if any) shall be paid on demand,
to the relevant Obligors, but will not carry
interest.
35.5 If at any time the Trustee receives money under a Senior Finance
Document after a notice is given under clause 7.2(b) ("Consequences of
default") but before a notice is given under clause 7.2(a)
("Consequences of default") (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 7.2(b)
("Consequences of default") in accordance with clause 3.8 ("Matters
requiring instructions from relevant Senior Creditors").
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36 Replacement of Trustee
Removal of Trustee
36.1
(a) The Trustee may be removed at any time:
(i) by the Majority of Senior Creditors giving to the Trustee
at least 30 days' notice to that effect;
(ii) subject to clause 10.1(b), with the agreement of the
Borrower, which agreement must not be unreasonably
withheld or delayed; and
(iii) by the Borrower, if the Majority of Senior Creditors
and the Borrower agree that the Trustee has engaged
in fraud, gross negligence or wilful misconduct.
(b) The Borrower's agreement under clause 10.1(a) is not required if:
(i) an Event of Default has occurred and is subsisting;
(ii) the removal of the Trustee is due to the Trustee's
fraud, gross negligence or wilful misconduct; or
(iii) an Insolvency Event occurs or arises in relation to
the Trustee.
Resignation
36.2 Subject to clause 10.5 ("Appointment of successor Trustee"), the
Trustee may resign as Trustee by giving to the Borrower and each other
Senior Creditor not less than 30 days' notice (or such shorter period
as the Borrower and the Majority of Senior Creditors may agree) of its
intention to do so.
Effect of resignation or removal
36.3
(a) Upon the resignation or removal of the Trustee pursuant to
clauses 10.1 ("Removal of Trustee") or 10.2 ("Resignation") ,
the Trustee is released from any further obligations as
Trustee under this deed, but such release does not prejudice
any liability in respect of any default arising before the
termination of appointment.
(b) Subject to clause 10.3(c) , the Borrower must indemnify the
Trustee and each Senior Creditor for the costs of the
resignation, removal or replacement of the Trustee under this
clause 10 ("Replacement of Trustee").
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(c) If the Trustee is removed or retires:
(i) due to the Trustee's fraud, gross negligence or wilful
misconduct; or
(ii) at its own election,
the reasonable costs of the
resignation or removal of the Trustee
will be borne by the Trustee.
Assurances
36.4 Despite clauses 10.1 ("Removal of Trustee") or 10.2 ("Resignation"),
no resignation or removal of the Trustee takes effect unless:
(a) a successor Trustee has been appointed in accordance with
clause 10.5 ("Appointment of successor Trustee");
(b) the successor Trustee undertakes to act as Trustee and be
bound in that capacity by the terms of this deed and each
other Senior Finance Document to which the Trustee is a party
(subject to any agreed amendment to those documents); and
(c) the successor Trustee has obtained title to any guarantee,
guarantee and indemnity or Security Interest held by the
retiring Trustee.
Appointment of successor Trustee
36.5
(a) If the Trustee resigns or is removed, the Majority of Senior
Creditors may appoint a successor Trustee approved by the
Borrower, which approval:
(i) must not be unreasonably withheld or delayed;
(ii) is not required if:
(A) an Event of Default has occurred and
subsisting; or
(B) the successor Trustee is to be a
Related Entity of the retiring
Trustee; and
(iii) is deemed to be given by the Borrower if the Borrower
does not reply within 10 Business Days after the request
for its approval is made.
(b) If no successor Trustee is so appointed or accepts the appointment
within 30 days after:
(i) notice of resignation or removal is given in accordance
with clauses 10.1 ("Removal of Trustee") or 10.2
("Resignation"); or
(ii) the Trustee's appointment is otherwise terminated,
the Trustee may, on behalf of each Senior Creditor, appoint a
successor Trustee of any type or nature and on such terms and
conditions as to fees and other terms as the terminated
Trustee thinks fit.
(c) Each Senior Creditor and Obligor is bound by the terms and
conditions of any appointment effected under clause 10.6(b).
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(d) Each Senior Creditor and each Obligor must do all things
necessary, including executing any deeds of appointment or
other documents, to ensure that the appointment of any
successor Trustee is properly and promptly effected.
(e) When a successor Trustee is appointed, the successor 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 successor Trustee had been an original party
to the Senior Finance Documents to which the Trustee is a
party (other than in relation to any accrued right against the
terminated Trustee for default under the Senior Finance
Documents) in place of the terminated Trustee.
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37 Limitation on Liability
37.1 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 Act 1958
of Victoria, limited to the amount shown in relation to it in the
Register (as defined in the Partnership Act 1958 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 11.1 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.
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38 Costs, charges, expenses and indemnities
What the Borrower agrees to pay
38.1 The Borrower agrees 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) 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
(c) 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 Borrower 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.
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The Trustee or Senior Creditor may debit any
of these amounts to the Borrower's account
after asking the Borrower to pay and the
Borrower has failed to pay the amount
requested.
Indemnity
38.2 The Borrower indemnifies 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.
The Borrower agrees to pay amounts due under
this indemnity to the Trustee on demand from
the Trustee.
Items included in loss, liability and Costs
38.3 The Borrower agrees that:
(a) the Costs referred to in clause 12.1 ("What the Borrower
agrees 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(b) and 12.2 ("Indemnity"), 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
(b) the Costs referred to in clause 12.1((a)) and (b) ("What the
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.
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Payment of third party losses
38.4 The Borrower agrees 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 attorney,
employee, officer, agent or contractor of the Trustee or the Senior
Creditor except to the extent caused by that person's gross negligence.
Currency conversion on judgment debt
38.5 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
Borrower indemnifies 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.
The Borrower agrees to pay amounts due under
this indemnity to the Trustee on demand from
the Trustee.
Trustee fees
38.6 The Borrower agrees 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 Borrower
and the Trustee.
GST
38.7
(a) Despite any other provisions of the Senior Finance Documents,
in the event that GST has application to any supply made by a
Senior Creditor to the Obligors under or in connection with
the Senior Finance Documents, the Senior Creditor may,
in addition to any amount or consideration payable under the
Senior Finance Documents, recover from the Borrower an
additional amount on account of GST, such amount to be
calculated by multiplying the relevant amount or
consideration payable by the Borrower for the relevant supply
by the prevailing GST rate. Any additional amount on
account of GST recoverable from the Borrower pursuant to this
clause shall be calculated without any deduction or
set-off of any other amount and is payable by the Borrower
upon demand by the Trustee whether such demand is by
means of an invoice or otherwise.
(b) In relation to any taxable supplies under or in connection
with the Senior Finance Documents, the relevant Senior
Creditor will provide the Borrower with valid tax invoices, as
a precondition to recovery by it of the relevant additional
amount on account of GST under clause 12.7(a) , in a form that
will enable the Borrower to claim any refund or credit of GST
permitted by the GST law.
(c) If at any time an adjustment is made as between the Senior
Creditor and the relevant taxing authority of an amount paid
on account of GST on any supply made by the Senior Creditor
under the Senior Finance Documents, a corresponding adjustment
must be made as between the Senior Creditor and the Borrower
and any payments required to give effect to the adjustment
must be made. If the Senior Creditor is entitled to an
adjustment by way of refund, the Senior Creditor must apply
for the refund if requested in writing to do so by the
Borrower.
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(d) Nothing in this clause requires the Borrower to pay an amount
on account of a fine, penalty, interest or other amount for
which a Senior Creditor is liable, to the extent that the
liability arises as a consequence of wilful misconduct or
gross negligence by the Senior Creditor, its employees or
agent.
-------------------------------------------------------------------------------
39 Notices
Form
39.1 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:
(a) must be in writing, signed by an Authorised Officer of the
sender and marked for attention as set out in schedule 4 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 4; or
(ii) sent by prepaid post (airmail, if appropriate) to the
address set out in schedule 4; or
(iii) sent by fax to the fax number set out in schedule 4,
but if the intended recipient has
notified a changed postal address or
fax number, then the communication
("Communications") must be to that
address or number; or
(c) 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
(d) 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
(e) despite clauses 13.1(c) and 13.1(d), Communications 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 5.00pm (addressee's
time) it is taken to be received at 9.00am on the following
Business Day.
Waiver of notice period
39.2 The Trustee may waive a period of notice required to be given by an
Obligor under this deed.
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40 Change in Creditors
New Senior Creditor
40.1 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 under this deed 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
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(b) delivered the two executed counterparts of the New Creditor
Accession Deed to the Trustee for execution by the Trustee;
and
(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
40.2 Subject to clause 14.9 ("New Junior Creditor - condition precedent"),
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:
(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
40.3 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 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
72
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(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
40.4 If any Junior Creditor (other than an Obligor) 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 ("New Junior Creditor - condition
precedent"), 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
40.5 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
40.6 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 to the New Creditor)
irrevocably authorises the Trustee to execute any New Creditor
Accession Deed signed by a New Creditor on its behalf.
40.7 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
40.8 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
40.9 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.
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Notice of Change
40.10 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.
40.11 A Creditor must promptly notify the Trustee of any assignment or
novation of that Creditor's rights, benefits or obligations under any
Finance Document.
-------------------------------------------------------------------------------
41 General
Set-off
41.1 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
41.2 The Trustee or a Senior Creditor 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.
Prompt performance
41.3 If this deed specifies when an Xxxxxxx 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
41.4 The Trustee or a Senior Creditor 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
41.5 Each Obligor agrees to comply with all conditions in any consent the
Trustee or a Senior Creditor gives in connection with a
Transaction Document.
Partial exercising of rights
41.6 If the Trustee or a Senior Creditor does not exercise a right or
remedy fully or at a given time, the Trustee or Senior
Creditor can still exercise it later.
No liability for loss
41.7 None of the Trustee or a Senior Creditor 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
41.8 The Trustee's or a Senior Creditor'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 has a personal interest in their
exercise.
Remedies cumulative
74
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41.9 The rights and remedies of the Trustee or a Senior Creditor under this
deed are in addition to other rights and remedies given by law
independently of this deed.
Rights and obligations are unaffected
41.10 Rights given to the Trustee or a Senior Creditor under this deed and
an Obligor's liabilities under it are not affected by any law that
might otherwise affect them.
Indemnities
41.11 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, or a Senior
Creditor to incur expense or make payment before enforcing a right of
indemnity under this deed.
Variation and waiver
41.12 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.
Confidentiality
41.13 The Trustee and each Senior Creditor agree 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, an Event of Default or Review
Event 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 Borrower or any of their Related
Entities; or
(c) to officers, employees, legal and other advisers and auditors
of the Trustee or a Senior Creditor; or
(d) to any party to this agreement or any Related Entity of the
Trustee or a Senior Creditor, 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 required to be in compliance with any Directive or stock
exchange or regulatory authority.
The Obligors consent to disclosures made in accordance
with this clause 15.13.
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Further steps
41.14 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
41.15 To the extent permitted by law, this deed prevails to the extent it is
inconsistent with any law.
Supervening legislation
41.16 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 or a Senior Creditor's , 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.
Time of the essence
41.17 Time is of the essence in any Senior Finance Document in respect of an
obligation of an Obligor to pay money.
Counterparts
41.18 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
41.19 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 14 (Notices).
(i) 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 15.19. 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; and
(ii) TXU irrevocably appoints the Borrower
to receive any document referred to
in this clause 15.19. If , for any
reason, the Borrower ceases to be
able to receive those documents, TXU
must immediately appoint another
person within Victoria to receive any
such document and notify the Trustee.
Consent by Obligors
41.20 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.
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Statutory powers
41.21
(a) The powers of the Trustee under this deed and the Senior
Finance Documents any are in addition to any powers the
Trustee has under applicable law.
(b) To the extent not prohibited by law except as required by any
Senior Finance Document, before enforcing this deed or
exercising any right under the Senior Finance Documents, the
Trustee is not required to give any notice or allow the
expiration of any time to any person.
-------------------------------------------------------------------------------
42 Governing law, jurisdiction and service of process
42.1 This deed is governed by the law in force in Victoria.
42.2 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.
42.3 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 ("Notices").
EXECUTED as a deed
77
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Schedule 1 Financiers
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
NAME OF FINANCIER ACN/ARBN/ABN NOTICE DETAILS
-------------------------------------------------------------------------------------------------------------------
Syndicated Facilities
Financiers
-------------------------------------------------------------------------------------------------------------------
Australia and New Zealand Banking ABN 11 005 357 522 Level 17
Group Limited 000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00) 0000 0000
Attention: Xx Xxxx Xxxxxxxx
-------------------------------------------------------------------------------------------------------------------
BNP PARIBAS ABN 23 000 000 000 00 Xxxxxxxxxxx Xxxxxx
Xxxxxx XXX 0000
Fax: (00) 0000 0000
Attention: Mr Xxxx Xxxxxxx and Xx Xxxxx
Xxxxx
-------------------------------------------------------------------------------------------------------------------
Credit Suisse First Boston ABN 17 061 700 712 Level 27
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00) 0000 0000
Attention: Xx Xxxx Xxxxxx
Assistant Vice President
-------------------------------------------------------------------------------------------------------------------
Citibank, N.A. ABN 34 072 814 058 Level 15
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00) 0000 0000
Attention: Xx Xxxxx Xxxxx
-------------------------------------------------------------------------------------------------------------------
Commonwealth Bank of Australia ABN 48 123 123 124 Level 14
000 Xxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00 0) 0000 0000
Attention: Xx Xxxx Xxxxxx
-------------------------------------------------------------------------------------------------------------------
ING Bank N.V. (Sydney Branch) ABN 32 080 178 196 Level 9
0 Xxxxxxxxx Xxxxx
Xxxxxx XXX 0000
Fax: (00 0) 0000 0000
Attention: Xx Xxxxxx Xxxxxxxx
Legal & Compliance Manager
-------------------------------------------------------------------------------------------------------------------
JPMorgan Chase Bank ABN 43 074 112 011 Level 00
Xxxxxxxxx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxx XXX 0000
Fax: (00 0) 0000 0000
Attention: Xx Xxxx Xxxx
Associate
78
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Mizuho Corporate Bank, Ltd ABN 83 099 031 106 Level 00
00 Xxxxxxxx Xxxxxx
Xxxxxx XXX 0000
Fax: (00 0) 0000 0000
Attention: Xx Xxxxxx Xxxxxxxx
Manager, Corporate Finance
-------------------------------------------------------------------------------------------------------------------
National Australia Bank Limited ABN 12 004 044 937 Level 33
000 Xxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00 0) 0000 0000
Attention: Xx Xxxxxxx Xxxxx
Director, Energy & Utilities
-------------------------------------------------------------------------------------------------------------------
The Bank of Tokyo-Mitsubishi, Ltd. ABN 75 103 418 882 Level 18
Melbourne Branch 000 Xxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00 0) 0000 0000
Attention: Xx Xxxxxx XxxXxxxx
-------------------------------------------------------------------------------------------------------------------
UBS AG, Australia Branch ABN 47 000 000 000 Level 25
Governor Xxxxxxx Tower
0 Xxxxxx Xxxxx
Xxxxxx XXX 0000
Fax: (00) 0000 0000
Attention: Xx Xxxxx Xxxxxxx
Associate Director
-------------------------------------------------------------------------------------------------------------------
United Overseas Bank Limited ABN 56 060 785 284 Level 9
00 Xxxxxx Xxxxx
Xxxxxx XXX 0000
Fax: (00) 0000 0000
Attention: Xx Xxxxxx X Xxxxxxx
Vice President and Head of
Project Finance and
Syndications
-------------------------------------------------------------------------------------------------------------------
Westpac Banking Corporation ABN 33 007 457 141 Level 9
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00 0) 0000 0000
Attention: Mr Xxxxxxx Xxxxxxxx
-------------------------------------------------------------------------------------------------------------------
79
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Working Capital Facility
Financiers
-------------------------------------------------------------------------------------------------------------------
Australia and New Zealand Banking ABN 11 005 357 522 Level 17
Group Limited 000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00 0) 0000 0000
Attention: Xx Xxxx Xxxxxxxx
-------------------------------------------------------------------------------------------------------------------
Commonwealth Bank of Australia ABN 48 123 123 124 Level 14
000 Xxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00 0) 0000 0000
Attention: Xx Xxxx Xxxxxx
-------------------------------------------------------------------------------------------------------------------
80
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Schedule 2 Hedge Counterparties
-------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
NAME OF HEDGE COUNTERPARTY ACN/ARBN/ABN NOTICE DETAILS
---------------------------------------------------------------------------------------------------------------------
Australia and New Zealand Banking ABN 11 005 357 522 Level 12
Group Limited 000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00) 0000 0000
Attention: Manager, Derivative
Operations
---------------------------------------------------------------------------------------------------------------------
Citibank, N.A. ABN 34 072 814 058 Level 15
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00) 0000 0000
Attention: Xx Xxxxx Xxxxx
---------------------------------------------------------------------------------------------------------------------
Commonwealth Bank of Australia ABN 48 123 123 124 Level 1
000 Xxxx Xxxxxx
Xxxxxx XXX 0000
Fax: (00) 0000 0000
Attention: Executive Manager,
Global Markets
----------------------------------------------------------------------------------------------------------------------
JPMorgan Chase Bank ABN 43 074 112 011 000 Xxxx Xxxxxx
Xxx Xxxx XX 00000-0000
Fax: x0 (000) 000 0000
Attention: Legal Department
Capital Markets Group
With a copy to: Level 00, Xxxxxxxxx
Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxx XXX 0000
Fax: (00) 0000 0000
Attention: Legal Department,
Capital Markets Group
-----------------------------------------------------------------------------------------------------------------------
National Australia Bank Limited ABN 12 004 044 937 Level 11
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (000) 0000 0000
Attention: Manager, Documentation
81
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NAME OF HEDGE COUNTERPARTY ACN/ARBN/ABN NOTICE DETAILS
------------------------------------------------------------------------------------------------------------------------
Societe Generale Australia Branch ABN 71 092 516 286 Level 00
000 Xxxxxx Xxxxxx
Xxxxxx XXX 0000
Fax: (00 0) 0000 0000
Attention: Legal Department
------------------------------------------------------------------------------------------------------------------------
The Toronto-Dominion Bank ABN 74 082 818 175 Level 24
0 Xxxxxxxxxxx Xxxxxx
Xxxxxx XXX 0000
Fax: (00 0) 0000 0000
Attention: Managing Director,
Credit
------------------------------------------------------------------------------------------------------------------------
UBS AG, Australia Branch ABN 47 000 000 000 0 Xxxxxxx Xxxxxxxxx
18-00 Suntec Xxxxx Xxxx
Xxxxxxxxx 000000
Fax: x00 0000 0000
Attention: Legal & Compliance
Department
------------------------------------------------------------------------------------------------------------------------
Westpac Banking Corporation ABN 33 007 457 141 Level 9
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Fax: (00) 0000 0000
Attention: Mr Xxxxxxx Xxxxxxxx
------------------------------------------------------------------------------------------------------------------------
82
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Schedule 3 New Creditor Accession Deed
-------------------------------------------------------------------------------
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:
(a) " Deed of Common Terms" means the deed of common terms
dated 24 February 1999 between the Trustee and others, as
amended.
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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2.4 The New Creditor consents to the amendments contemplated by the
Amending Deed and agrees to be bound by the Amending Deed.
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]
84
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Schedule 4 Notices
--------------------------------------------------------------------------------------------------------
Borrower and Obligors TXU
Address: Level 33 Address: Energy Plaza
000 Xxxxxx Xxxxxx 0000 Xxxxx Xxxxxx
Xxxxxxxxx Xxx 0000 Xxxxxx, Xxxxx 00000
Xxxxxx Xxxxxx xx Xxxxxxx
Fax: (00 0) 0000 0000
Fax: (000) 000 0000
Attention: Assistant Treasurer Attention: Treasurer
Trustee Financiers
Address: Level 12 As set out in xxxxxxxx 0
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Hedge Counterparties
Fax: 0000 0000
Tel: 0000 0000 As set out in schedule 2
Attention: Transaction Management & Execution,
Credit Origination and Sales
85
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Schedule 5 - Deed of Subordination
-------------------------------------------------------------------------------
Dated:
Parties: [ ] ("Subordinated Creditor")
[ ] ("Obligor")
[ ] ("Trustee") for itself and on
behalf of the Senior Creditors under the Deed
of Common Terms
-------------------------------------------------------------------------------
20 Definitions and Interpretation
Definitions
20.1 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 as amended.
Final Redemption Date has the meaning given to
it in the Loan Note Subscription Agreement.
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].
20.2 Terms defined in the Deed of Common Terms have the same meaning
in this deed.
Interpretation
20.3 Clause 1.2 of the Deed of Common Terms applies to this deed.
-------------------------------------------------------------------------------
21 Subordination
21.1 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
86
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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
it were a party to the Deed of Common Terms.
21.2 The subordination of the Subordinated Debt is intended to operate as a
"debt subordination" (as defined in section 563C(2) of the Corporations
Act 2001 (C'th)) by the Subordinated Creditor.
-------------------------------------------------------------------------------
22 Laws
This deed is governed by the law in force in Victoria.
EXECUTED as a deed.
[Execution clauses]
87
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Schedule 6 New Obligor Accession Deed
--------------------------------------------------------------------------------
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.
5. 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]
88
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Schedule 7 Obligor - Deed of Release
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DEED dated
BETWEEN:
[*] [(ACN [*])] (the "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. RELEASE
With effect from and including the [date of this deed]:
(a) the Obligor, who has been designated as an Unrestricted
Subsidiary is released from its obligations as an Obligor under
the Deed of Common Terms and ceases to be a party to the Deed of
Common Terms; and
(b) the Obligor acknowledges that this discharge does not prejudice
any accrued right of or obligation of the Obligor, prior to the
date of this deed.
3. 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]
89
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Schedule 8 Deed of Release (Guarantor)
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DEED dated
BETWEEN:
[*] [(ACN [*])] (the "Guarantor"); 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. RELEASE
With effect from and including the [date of this deed]:
(a) the Guarantor, is released from its obligations (other than
liability under clause 11 of the IPO Guarantee) as a Guarantor
under the IPO Guarantee and ceases to be a party to the IPO
Guarantee and to the Deed of Common Terms as a "Guarantor"; and
(b) the Guarantor acknowledges that this discharge does not
prejudice any accrued right of or obligation of the Guarantor,
prior to the date of this deed.
3. 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]
90
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Execution page
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1
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Contents Deed of Common Terms
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1 Interpretation 1
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2 Declaration of trust 27
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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 32
Trustee may assume compliance 32
Limit on disclosure obligations 32
No further obligations 32
Individual responsibility of Senior Creditors 32
Exoneration of Trustee 33
Trustee in capacity of a Senior Creditor 34
Trustee dealing in different capacities 34
Notice of transfer 34
Senior Creditor to pay over amounts received directly 34
Pro-rata refunds 35
Proceeds of litigation 35
Amendment to Deed 35
Senior Creditors to indemnify against non-payment 36
The Borrower's back-to-back indemnity 36
Funds before acting 36
If a Senior Creditor does not fund 36
Borrower's costs obligation not affected 37
Compliance may be assumed 37
Trustee is not responsible for Senior Creditor's breach 37
Delegation by Trustee 37
Trustee may rely on communications and opinions 38
Force majeure 38
No responsibility for force majeure 38
Authority to Execute 38
Restriction on Senior Creditors exercising rights 38
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4 Subordination 38
Subordination 38
Rights and obligations following an Event 39
Junior Creditor Undertakings 39
Permitted Junior Creditor Payments 40
Obligors 40
Revocation of Approvals 41
Preservation of Senior Creditor's Rights 41
2
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Power of Attorney 43
Corporations Act 2001 (C'th) 43
TXU 43
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5 Representations and warranties 44
Representations and warranties 44
Continuation of representations and warranties 47
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6 Undertakings 47
General undertakings 47
Hedge Undertakings 52
Accession of Hedge Counterparties 52
Notification of Hedge Exposures 53
Restricted and Unrestricted Subsidiaries Undertakings 53
Negative Undertakings 55
Financial Undertakings 57
Changes in Australian Accounting Standards 58
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7 Events of Default 58
Events of default 58
Consequences of default 62
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8 Review Event 63
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9 Distribution of Recovered Money 64
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10 Replacement of Trustee 65
Removal of Trustee 65
Resignation 65
Effect of resignation or removal 65
Assurances 66
Appointment of successor Trustee 66
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11 Limitation on Liability 67
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12 Costs, charges, expenses and indemnities 67
What the Borrower agrees to pay 67
Indemnity 68
Items included in loss, liability and Costs 68
Payment of third party losses 69
Currency conversion on judgment debt 69
Trustee fees 69
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13 Notices 70
Form 70
Waiver of notice period 70
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14 Change in Creditors 70
New Senior Creditor 70
New Junior Creditor 71
Change in Senior Creditors 71
Change in Junior Creditor 72
Effect of Accession 72
Authority 72
Restriction on Senior Creditors 72
3
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New Junior Creditor - condition precedent 72
Notice of Change 73
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15 General 73
Set-off 73
Certificates 73
Prompt performance 73
Discretion in exercising rights 73
Consents 73
Partial exercising of rights 73
No liability for loss 73
Conflict of interest 73
Remedies cumulative 73
Rights and obligations are unaffected 74
Indemnities 74
Variation and waiver 74
Confidentiality 74
Further steps 75
Inconsistent law 75
Supervening legislation 75
Time of the essence 75
Counterparts 75
Serving documents 75
Consent by Obligors 75
Statutory powers 76
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16 Governing law, jurisdiction and service of process 76
Definitions 85
Interpretation 85
i
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Dated 24 February 1999
Deed of Common Terms (IPO)
TXU Australia Holdings Pty Ltd
(as the "Borrower" and as an "Obligor")
TXU Australia Holdings (AGP) Pty Ltd
TXU Australia (LP) No 1 Limited
TXU Australia (LP) No 2 Limited
("Partnership" and as an ("Obligor")
Each of the Guarantors
(as a "Guarantor" and as an "Obligor")
TXU Corp.
("TXU")
TXU Australia Holdings (AGP) Pty Ltd
TXU Australia (LP) No. 1 Limited
TXU Australia (LP) No. 2 Limited
("Junior Creditors")
Each of the financial institutions specified in
schedule 1
("Financiers") Each of the
financial institutions specified in
schedule 2
("Hedge Counterparties")
Australia and New Zealand Banking Group Limited
("Syndicated Facilities Agent")
ANZ Fiduciary Services Pty Ltd
("Trustee")
Mallesons Xxxxxxx Xxxxxx
Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Telephone (00 0) 0000 0000
Fax (00 0) 0000 0000
DX 101 Melbourne
Ref: MLB:JLC
7114475_8
