EXHIBIT 99(cc)
------------------------------------------
DATED 24 FEBRUARY 1999
SECURITY TRUST DEED
TU Australia Holdings (AGP) Pty Ltd
TU Australia Holdings No. 1 Limited
TU Australia Holdings No. 2 Limited
("CORE BORROWER")
TU Australia Holdings Pty Ltd
TUA (No. 8) Pty Ltd
TUA (No. 9) Pty Ltd
("GUARANTOR")
Texas Utilities Australia Pty Ltd
("TUA")
TUA (No. 10) Pty Ltd
TUA (No. 11) Pty Ltd
("PURCHASER")
Eastern Energy Limited
("EASTERN")
Texas Utilities Company
("TEXAS")
Citibank, N.A.
("JUNIOR FINANCIER")
National Australia Bank Limited
("AGENT")
National Australia Bank Limited
("SECURITY TRUSTEE")
MALLESONS STEPHEN JAQUES
Solicitors
Rialto
525 Collins Street
Melbourne Vic 3000
Telephone (61 3) 9643 4000
Fax (61 3) 9643 5999
DX 101 Melbourne
Ref: JLC
MELBOURNE/29B101!.DOC
CONTENTS SECURITY TRUST DEED
- -------------------------------------------------------------------------------
1 INTERPRETATION 1
Incorporation 24
Agent 24
2 DECLARATION OF TRUST 24
3 DUTIES, POWERS AND RIGHTS OF SECURITY TRUSTEE 25
Authority of Security Trustee 25
Authority of Security Trustee to execute
Finance Documents 25
Power of the Security Trustee 25
Seeking instructions; consultation 25
Action in the absence of instructions 25
Obligors not to investigate authority 25
Amendments, waivers, releases and enforcement 26
Limits on duties of Security Trustee 26
Security Trustee's duty is only to Senior Creditors 26
Duty of Security Trustee to act honestly 26
Notice of Event of Default 26
Indemnity to Security Trustee 26
Security Trustee may also be a Creditor 27
No representation by Security Trustee 27
No individual enforcement by Creditors 27
Reliance on documents and experts 28
Notice of transfer 28
Distribution of information to Agent and Note Agent 28
4 SUBORDINATION 28
Subordination 28
Rights and obligations following an Event 28
Junior Creditor Undertakings 29
Permitted Junior Financier Payments 29
Obligors 30
Revocation of Approvals 31
Preservation of Senior Creditor's Rights 31
Power of Attorney 33
Application as between Junior Finance Debt and Eastern
Debt and Texas Indemnity 33
Texas Guarantee 34
Corporations Law 34
Obligors 34
Texas 34
5 REPRESENTATIONS AND WARRANTIES 34
Representations and warranties 34
Continuation of representations and warranties 40
6 UNDERTAKINGS 40
General undertakings 40
Borrower's Undertakings - Hedge 50
Negative Undertakings 51
Financial Undertakings 54
Distributions 54
7 SECURITY ACCOUNT 55
Establishment 55
Directions 55
Acknowledgment of satisfaction of obligations 55
8 DEFAULT 57
Events of default 57
Consequences of default 62
9 DISTRIBUTION OF RECOVERED MONEY 63
10 REPLACEMENT OF SECURITY TRUSTEE 64
Removal of Security Trustee 64
Retirement 64
11 LIMITED RECOURSE 65
Limited Recourse 65
Calculation of Guaranteed Money 66
Limitation on liability 66
12 COSTS, CHARGES, EXPENSES AND INDEMNITIES 66
What the Borrowers agree to pay 66
Indemnity 67
Items included in loss, liability and Costs 68
Payment of employees'losses 68
Currency conversion on judgment debt 68
13 NOTICES 69
Form 69
Waiver of notice period 69
14 CHANGE IN CREDITORS 69
Change in Creditors 69
Effect of accession 70
Notice of Change 70
15 GENERAL 70
Set-off 70
Certificates 70
Prompt performance 71
Discretion in exercising rights 71
Consents 71
Partial exercising of rights 71
No liability for loss 71
Conflict of interest 71
Remedies cumulative 71
Rights and obligations are unaffected 71
Indemnities 71
Variation and waiver 72
Confidentiality 72
Further steps 72
Inconsistent law 72
Supervening legislation 72
Time of the essence 73
Counterparts 73
Serving documents 73
16 GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS 73
SECURITY TRUST DEED
DATE: 24 February 1999
PARTIES: TU AUSTRALIA HOLDINGS (PARTNERSHIP) LIMITED
PARTNERSHIP a limited partnership formed and
registered under the Partnership Act 1958 of
Victoria, the general partner of which is:
TU AUSTRALIA HOLDINGS (AGP) PTY LTD (ACN 086 014
931) having an office at Level 17, 452 Flinders
Street, Melbourne, Victoria; and the limited
partners of which are:
TU AUSTRALIA HOLDINGS 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
TU AUSTRALIA HOLDINGS 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
("CORE Borrowers")
TU AUSTRALIA HOLDINGS PTY LTD (ACN 086 006 859);
TUA (NO. 8) PTY LTD (ACN 085 235 776); and
TUA (NO. 9) PTY LTD (ACN 085 235 801) each having an
office at Level 17, 452 Flinders Street, Melbourne,
Victoria (each a "GUARANTOR")
TEXAS UTILITIES AUSTRALIA PTY LTD (ACN 071 611 017)
having an office at Level 17, 452 Flinders Street,
Melbourne, Victoria ("TUA")
TUA (NO. 10) PTY LTD (ACN 086 015 036); and
TUA (NO. 11) PTY LTD (ACN 086 014 968) each having
an office at Level 17, 452 Flinders Street,
Melbourne, Victoria (each a "PURCHASER")
EASTERN ENERGY LIMITED (ACN 064 651 118) having its
registered office at Level 17, 452 Flinders Street,
Melbourne, Victoria ("EASTERN")
TEXAS UTILITIES COMPANY having an office at Energy
Plaza, 1601 Byran Street, Dallas, Texas 75201,
United States of America ("TEXAS")
CITIBANK, N.A. (ARBN 072 814 058) having an office
at Level 26, 101 Collins Street, Melbourne, Victoria
("JUNIOR FINANCIER")
NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937)
having an office at Level 2, 271 Collins Street,
Melbourne, Victoria (in its capacity as "Agent")
NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937)
having an office at Level 2, 271 Collins Street,
Melbourne, Victoria (in its capacity as "SECURITY
TRUSTEE")
1 INTERPRETATION
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1.1 The following words have these meanings in this deed unless
the contrary intention appears.
ACTION means action which may result in an amendment, waiver,
determination, consent, approval, release or discharge.
ALP LOAN AGREEMENT means each loan agreement between Holdco
(as lender) and the Core Borrowers (as borrowers) dated on or about the
date of this deed.
ALP LOAN DEBT means any amount actually or contingently
owing by the Core Borrowers to Holdco under or in connection with an ALP
Loan Agreement.
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 Bank Finance Document (including transactions in connection with
them) to that Senior Creditor or to the Security Trustee for the account
of that Senior Creditor and includes, in respect of a Hedge
Counterparty, the Hedge Exposure of that Hedge Counterparty.
ASSETS means all of the assets acquired by the Purchasers in
accordance with, or contemplated by, the Sale Agreement.
AUSTRALIAN ACCOUNTING STANDARDS means the accounting
standards within the meaning of the Corporations Law and, where not
inconsistent with those accounting standards and the Corporations Law,
generally accepted accounting principles and practices in Australia
consistently applied by a body corporate or as between bodies corporate.
AUTHORISATION includes:
(a) any consent, authorisation, registration,
filing, agreement, notarisation, certificate,
permission, licence, approval, authority,
arrangement, exemption or similar instrument
(whether from, by or with a Governmental
Agency or any other person); or
(b) in relation to anything which will be
prohibited or restricted in whole or in part
by law if a Governmental Agency intervenes or
acts in any way within a specified period
after application, lodgement, filing,
registration or notification, the expiry of
that period without the intervention or
action.
AUTHORISED OFFICER means:
(a) in the case of a Senior Creditor or the
Junior Financier, a director, secretary or an
officer whose title contains the word
"manager", "director", "lawyer", "counsel" or
a person performing the functions of any of
them; and
(b) in the case of an Obligor, Eastern or Texas,
a person appointed and notified to the
Security 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 Security
Trustee.
BANK FINANCE DOCUMENT means each of this deed, the
Syndicated Facilities Agreement, the Deed Polls, the Loan
Notes, each Security, the Working Capital Terms and
Conditions, each Hedge Agreement and any other document
which an Obligor and the Agent agree in writing is to be a
Bank Finance Document and any other instrument connected
with any of them.
BASE CASE MODEL has the meaning given to that term in the
Syndicated Facilities Agreement.
BILL has the meaning it has in the Bills of Exchange Act
1909 (Cwlth) and a reference to the drawing, acceptance or
endorsement of, or other dealing with, a Bill is to be
interpreted in accordance with that Act.
BORROWER means each Core Borrower and WCF Borrower.
BS1 means TUA (No. 8) Pty Ltd (ACN 085 235 776).
BS1-BS2 LOAN AGREEMENT means each loan agreement dated on or
about the date of this deed between BS1 (as lender) and BS2
as borrower).
BS1 MORTGAGE, SHARE MORTGAGE AND CHARGE means the mortgage,
share mortgage and charge made or to be made between BS1
and the Security Trustee over the interests of BS1 in the
BS1-BS2 Loan Agreement, the shares held by BS1 in BS2 and
over all the other assets and undertaking of BS1.
BS2 means TUA (No. 9) Pty Ltd (ACN 085 235 801).
BS2 - WESTAR/KINETIK LOAN AGREEMENT means each loan
agreement dated on or about the date of this deed under
which a loan is to be made between BS2 (as lender) and TUA
(No. 10) Pty Limited and TUA (No. 11) Pty Ltd (as
borrowers).
BUSINESS DAY means a day (not being a Saturday, Sunday or
public holiday) on which banks are open for general banking
business in Melbourne and Sydney.
CALCULATION DATE means 31 March, 30 June, 30 September and
31 December in each year commencing on 30 September 1999.
CALCULATION PERIOD means, in relation to any Calculation
Date, the 12 month period ending on that Calculation Date
except in the case of the those Calculation Periods ending
within twelve months of Financial Close which will commence
on Financial Close and end on the relevant Calculation Date.
CAPEX RESERVE means a reserve set aside by the Purchasers
and which has not been directly or indirectly funded by
Senior Debt (except to the extent that it constitutes a
drawing on a revolving facility after the date of Financial
Close) and which may only be used:
(a) to fund Capital Expenditure in excess of the
Capital Expenditure projected to be paid in
accordance with the Base Case Model, as that
projected Capital Expenditure may be adjusted
having regard to the capital expenditure
review plan agreed in accordance with clause
6.1(pp); or
(b) to pay a Distribution permitted to be paid
under clause 6.5.
CAPITAL EXPENDITURE means, in relation to a Purchaser, any
expenditure which would be treated as capital expenditure
in the Financial Statements of the Purchaser in accordance
with Australian Accounting Standards, and for the avoidance
of doubt, includes maintenance expenditure and expenditure
to establish, acquire, expand or develop assets relating to
the Core Assets and Core Business but does not include
expenditure funded from capital works payments by customers
of the Purchaser.
CONSOLIDATED INTEREST COVER RATIO means, on any Calculation
Date in respect of any Calculation Period, the ratio of:
(a) EBITDA less:
(i) Capital Expenditure except to the
extent that any Capital Expenditure in
excess of the amount projected to be
paid in that Calculation Period in the
Base Case Model is paid from a
withdrawal from the Capex Reserve;
(ii) income tax; and
(iii) abnormal and extraordinary items
paid for in cash including land
remediation costs (except to
the extent that any land remediation
costs in excess of the amount
projected to be paid in that
Calculation Period in the Base Case
Model are paid from a withdrawal from
the Remediation Reserve) and the net
losses resulting directly
from the supply of gas to all
customers in the Wimmera towns of
Ararat, Stawell and Horsham but
excluding any Restructuring Costs to
the extent that those Restructuring
Costs are paid from a withdrawal from
the Reserve Account,
paid or incurred in that Calculation Period,
to:
(b) Debt Service,
for that Calculation Period.
CONSOLIDATED NET WORTH means the aggregate, on a consolidated basis, of
the paid up capital, retained profits and reserves (excluding the amount
of all asset revaluation reserves after Financial Close) of the
Operating 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 before the Maturity
Date for the Tranche B Facility and
the Tranche C Facility (as those terms
are defined in the Syndicated
Facilities Agreement);
(b) plus Total Subordinated Debt.
CONSOLIDATED SENIOR DEBT means at any time the sum of:
(a) the total Amount Owing to the Senior
Creditors; and
(b) the aggregate outstanding principal amount
of all other Permitted Indebtedness of the
Operating Group on a consolidated basis
which is not subordinated to the interests
of the Senior Creditors.
CONTESTED TAXES means a Tax payable by an Obligor:
(a) that is being diligently contested by it in
good faith and in accordance with proper
procedures;
(b) that is not required by applicable law to be
paid before the liability is contested; and
(c) in respect of which it has set aside
sufficient reserves of liquid assets to pay
the Tax and any fine, penalty or interest
payable if the contest is unsuccessful.
CONTROLLER has the meaning it has in the Corporations Law.
CORE ASSETS means the Gas Infrastructure and the Licences.
CORE BUSINESS means the supply, transmission, distribution and sale of
energy products and any ancillary activities (so long as these
ancillary activities do not represent a material diversification of
the business or a material diversion of financial resources of the
Purchasers from the Core Business of the supply, transmission,
distribution and sale of gas).
COSTS includes costs, charges and expenses, including those
incurred in connection with advisers.
CREDITOR means each Senior Creditor and each Junior Creditor. Where the
term is used in relation to the obligations of any one of those persons
"to the Creditors" it is a reference to the obligations of that person
to each other person which is a Creditor.
DEBT SERVICE means, in respect of any Calculation Period and on a
consolidated basis, all Interest (including, but not limited to:
(a) any discount on any Bill, debenture, bond,
note or other security;
(b) any discount in respect of any receipts or
receivables which have been sold by the
Borrowers to any person (including, without
limitation, under any securitisation program
or facility);
(c) any line, facility, commitment, acceptance,
usage, discount, guarantee or other fees and
amounts incurred on a regular or recurring
basis which are payable in relation to
Indebtedness (which, for the avoidance of
doubt, excludes any establishment,
underwriting or other upfront fees);
(d) any dividend payable on redeemable preference
shares or on any other share or stock the
obligations in respect of which constitute
Indebtedness;
(e) capitalised interest;
(f) the portion of rental or hire payments in the
nature of interest under any finance lease,
sale and leaseback or hire purchase agreement
to which a Borrower is a party;
(g) Interest, premiums, fees, break costs and any
other amounts paid, payable or incurred by a
Borrower under any Derivative Transaction
less Interest, premiums, fees and any other
amounts paid, payable or incurred to a
Borrower 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 Borrowers in respect of
or in connection with Consolidated Senior Debt in
that Calculation Period.
DEED POLL has the meaning given to that term in the Syndicated
Facilities Agreement.
DERIVATIVE TRANSACTION means a contract, agreement or arrangement
(other than in respect of the price of electricity or gas) which is:
(a) a futures contract (as defined in the
Corporations Law); or
(b) an interest rate or currency hedge, swap,
option, a swaption, a forward rate agreement
or any other contract, agreement or
arrangement similar to or having in respect
of its subject matter a similar effect to any
of the above.
DISTRIBUTION means:
(a) any dividend, charge, interest, fee, payment
or other distribution (whether in cash or in
kind) or redemption, repurchase, defeasance,
retirement or repayment on or in respect of
any share capital of an Obligor; or
(b) any Interest, any repayment or prepayment of
any amount of principal or any other payment
in respect of any Subordinated Indebtedness;
or
(c) any loan by an Obligor.
DISTRIBUTION AREA means the area in Victoria in which TUA (No. 10) Pty
Ltd will on and from Financial Close be authorised to distribute and
supply gas, being that area defined as the `Distribution Area' and
described in Schedule 2 to the Distribution Licence.
DISTRIBUTION LICENCE means the distribution licence issued to Westar by
ORG pursuant to the Gas Industry Act 1994 with effect from 11 December
1997, as amended and transferred to TUA (No. 10) Pty Ltd on or before
the date of Financial Close.
DRAWDOWN DATE has the meaning given to that term in the Syndicated
Facilities Agreement.
EASEMENTS means all easements, rights or privileges held by or vested in
or deemed to be held by or vested in a Purchaser (whether under Part 5
of the Gas Industry Act 1994 or otherwise) in, over, appurtenant to or
affecting any real property.
EASTERN DEBT means any amount actually or contingently owing under or
in connection with the Eastern Loan Agreement.
EASTERN LOAN AGREEMENT means the loan agreement made or to be made
between Eastern (as lender) and BS1 (as borrower).
EBITDA means, in respect of any Calculation Period, the
earnings of the Operating Group (including the proceeds of any claim
under a business interruption insurance policy by a Purchaser and any
interest earnings) on a consolidated basis and before:
(a) abnormal items (which includes the sale
proceeds from the disposal of assets and
Restructuring Costs);
(b) extraordinary items including, without
limitation, costs arising on the termination
of any Derivative Transaction;
(c) Debt Service;
(d) income tax; and
(e) depreciation and amortisation.
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;
(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 SUBSCRIPTION AGREEMENT means the agreement to be made on or
before the date of Financial Close between the Core Borrowers and
Holdco in relation to the subscription of shares in Holdco by the Core
Borrowers.
EVENT means the happening of any of these events:
(a) an order is made that an Obligor be wound up;
or
(b) a liquidator is appointed in respect of an
Obligor; or
(c) a provisional liquidator is appointed in
respect of an Obligor and the provisional
liquidator is ordered or required to admit
all debts to proof or pay all debts capable
of being admitted to proof proportionately;
or
(d) an Obligor enters into, or resolves to enter
into, a scheme of arrangement, deed of
company arrangement or composition with, or
assignment for the benefit of, all or any
class of its creditors; or
(e) an Obligor resolves to wind itself up or
otherwise dissolve itself.
EVENT OF DEFAULT means an event specified in clause 8.
FINANCE DOCUMENT means any Bank Finance Document, any Junior
Finance Document, any other document which the Core Borrowers and the
Security Trustee agree in writing is to be a Finance Document and any
other instrument connected with any of them.
FINANCIAL CLOSE means the date on which the last condition
precedent in schedule 1 to the Syndicated Facilities Agreement is
satisfied (or waived by the Financiers).
FINANCIAL YEAR means each 12 month period ending on 31 December in each
year.
FINANCIER has the meaning given in the Syndicated Facilities Agreement.
FINANCIAL STATEMENTS means:
(a) a profit and loss statement; and
(b) a balance sheet; and
(c) a statement of cash flows,
together with any notes to those documents and a directors' declaration
as required under the Corporations Law (in the case of a body corporate
incorporated in Australia) and any other information necessary to give a
true and fair view.
FIXED DATE means the day by which the Security Trustee determines that
a Majority of Senior Creditors have instructed the Security Trustee to
give a notice under clause 8.2.
FRANCHISE AREA means the area in Victoria in which TUA (No. 11) Pty Ltd
will on and from Financial Close be authorised to sell gas, being that
area defined as the `Franchise Area' and described in schedule 2 to the
gas Retail Licence.
GASCOR PUT OPTION AGREEMENT means the agreement entered into or to be
entered into between TUA (No. 11) Pty Ltd and the State of Victoria
under which the State of Victoria may, at its option, transfer to TUA
(No. 11) Pty Ltd a portion of the State's shares in the State owned
company into which GASCOR will be converted.
GAS 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 Purchasers; and
(b) Easements.
GAS INFRASTRUCTURE ASSETS means any asset which forms part of the Gas
Infrastructure.
GOOD GAS INDUSTRY PRACTICE means the standard of operating and
engineering practice that would reasonably be expected from a
significant proportion of the world's best operators of facilities (not
being owned and operated by Governmental Agencies) for the supply,
transmission, distribution and sale of gas, operation of pipelines and
reticulation networks with the asset conditions being consistent with
the Core Assets and consistent with applicable laws, regulations, codes
(including, without limitation, AG 600 Gas Distribution Code) and the
Licences and on the basis that the determination of conditions
consistent with the Core Assets takes into account:
(a) the design and specifications, relative size,
age, distribution and technology utilised in
the network; and
(b) operating and engineering practice in
connection with such facilities including,
without limitation, the day to day operation
of such facilities as well as maintenance,
repair, modification, performance improvement
and the exercise of skill, diligence,
prudence and foresight in connection with
such activities.
GOVERNMENTAL AGENCY means any government, any minister of a government
or any governmental or semi-governmental entity, agency or authority
(including, without limitation, the Australian Competition and Consumer
Commission and the ORG).
GUARANTEE means the guarantee and indemnity made or to be made between
the Core Borrowers, Holdco, BS1 and BS2 in favour of the Security
Trustee.
GUARANTEED MONEY has the meaning given to that term in the Guarantee.
HALF YEAR mens each period of six months ending on 30 June and 31
December in each year.
HEDGE AGREEMENT means each interest rate hedging document (including any
restatement of any earlier document) entered into between the Core
Borrowers and any Hedge Counterparty on or before the date of the
Financial Close.
HEDGE COUNTERPARTY has the meaning given to that term in the Syndicated
Facilities Agreement.
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 provided that M to M
will be a positive number if it represents a
liability of the Core Borrowers to the Hedge
Counterparty and a negative number if it
represents a liability of the Hedge
Counterparty to the Core Borrowers.
UNPAID AMOUNTS is any amount owing
under the Hedge Agreements provided that
Unpaid Amounts will be a positive number if
it represents amounts owing by the Core
Borrowers to the Hedge Counterparty and a
negative number if it represents amounts
owing by the Hedge Counterparty to the Core
Borrowers,
provided that if H is a negative number it shall be deemed to be equal
to zero.
HOLDCO means TU Australia Holdings Pty Ltd (ACN 086 006 859).
HOLDCO MORTGAGE means the mortgage made or to be made
between Holdco and the Security Trustee over Holdco's interests in the
Holdco-TUA Loan Agreements, the ALP Loan Agreements and the TUA
Mortgage.
HOLDCO - TUA LOAN AGREEMENT means each loan agreement dated
on or about the date of this deed between Holdco (as lender) and TUA (as
borrower).
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;
(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; or
(i) guarantee, indemnity or guarantee and
indemnity,
and irrespective of whether the debt or liability is owed or incurred
alone or severally or jointly or both with any other person. For the
purpose of calculating the principal amount of any Indebtedness under:
(j) any securitisation of receipts or
receivables, the principal amount shall be
taken to be the discounted amount of proceeds
paid in exchange for the receipts or
receivables; and
(k) any finance lease or sale and leaseback, the
aggregate portion of all rental in the nature
of principal.
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 Security 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 Security
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 Security 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
(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 AGREEMENTS means:
(a) the ALP Loan Agreements;
(b) the Holdco - TUA Loan Agreements;
(c) the TUA - BS1 Loan Agreements;
(d) the BS1 - BS2 Loan Agreements;
(e) the BS2 - Westar/Kinetik Loan Agreements;
and any Security Interest (including, without limitation, the TUA
Mortgage) given in connection with any of them.
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
the Syndicated Facilities Agreement.
JUNIOR CREDITOR means the Junior Financier, Eastern, each
Obligor owed money in respect of an Intercompany Loan Agreement and
Texas.
JUNIOR DEBT means each of:
(a) the Junior Finance Debt;
(b) the Eastern Debt;
(c) the Texas Indemnity; and
(d) the Intercompany Loan Debt.
JUNIOR FINANCE DEBT means any amount actually or contingently
owing under or in connection with the Junior Finance Documents (other
than an amount owing by Texas under the Texas Guarantee).
JUNIOR FINANCE DOCUMENT means the Subordinated Facility Agreement, the
Texas Guarantee, this deed and any other document which the Core
Borrowers and the Junior Financier agree is to be a Junior Finance
Document and any other instrument connected with any of them.
JUNIOR FINANCIER means Citibank, N.A. in its capacity as financier under
the Subordinated Facility Agreement.
KINETIK means Kinetik Energy Pty Ltd (ACN 079 089 188).
LICENCE means the Distribution Licence, a Retail Licence and
any other Authorisation granted to a Purchaser to distribute or sell
energy products.
LIMITED RECOURSE GUARANTOR means the Core Borrowers and Holdco.
LIMITED RECOURSE OBLIGOR means the Core Borrowers, TUA and the Limited
Recourse Guarantors.
LIMITED RECOURSE OBLIGATIONS means the obligation of the Core Borrowers,
TUA or Holdco to pay money under the Transaction Documents (other than
the obligation to pay money under clause 4.5 and the obligations of the
Core Borrowers under the Subordinated Facility Agreement) except if
arising in the circumstances contemplated by clause 11.3(b).
LOAN NOTE has the meaning given to that term in the Syndicated
Facilities Agreement.
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 such Senior
Creditors; and
(b) if an Event of Default subsists, Senior
Creditors the Amount Owing to whom exceeds
66% of the total Amount Owing to all Senior
Creditors.
MATERIAL ADVERSE EFFECT means something which materially adversely
affects:
(a) the legality, validity or enforceability of a
Finance Document; or
(b) the Obligor's ability to observe its
obligations under any Finance Document; or
(c) the ability of a Purchaser to carry on its
business as it is being conducted at the time
preceding the event; or
(d) the rights of a Senior Creditor under a Bank
Finance Document.
MATERIAL CONTRACT means:
(a) the Sale Agreement;
(b) the Outsourcing Agreements;
(c) the Sales Contracts;
(d) the GASCOR Put Option Agreement;
(e) the Shareholder Deed;
(f) the Equity Subscription Agreement;
(g) the Intercompany Loan Agreements;
(h) the Eastern Loan Agreement;
(i) the Subordinated Facility Agreement;
(j) the Partnership Deed;
(k) Underground Gas Storage Services Agreement
entered into or to be entered into between
Kinetik Energy Pty Ltd and Western
Underground Gas Storage Pty Ltd and Texas
Utilities Australia Pty Ltd;
(l) Guarantee between Westar Pty Ltd, Westar
Assets Pty Ltd and GASCOR;
(m) Gas Supply Agreement (Cooper Basin) entered
into or to be entered into between Kinetik
Energy Pty Ltd and GASCOR;
(n) Gas Supply Agreement (Port Campbell Fields)
entered into or to be entered into between
Kinetik Energy Pty Ltd and GASCOR;
(o) Gas Sales Agreement entered into or to be
entered into between Western Underground Gas
Storage Pty Ltd, Texas Utilities Australia
Pty Ltd and GASCOR;
(p) Put Option Deed dated 15 December 1998
between Kinetik Energy Pty Ltd, Esso
Australia Resources Ltd and BHP Petroleum
(Bass Strait) Pty Ltd and any Transportation
Agreement to be entered into as a result of
the exercise of the option;
(q) Port Campbell Gas Sale Agreement dated 4
February 1994;
(r) Service Envelope Agreement entered into or to
be entered into between VENCorp and
Transmission Pipelines Australia Pty Ltd;
(s) Gas Transportation Deed entered into or to be
entered into between VENCorp and Kinetik
Energy Pty Ltd;
(t) Western Transmission System Agreement dated 9
August 1998 between Transmission Pipelines
Australia Pty Ltd, Transmission Pipelines
Australia (Assets) Pty Ltd and Kinetik Energy
Pty Ltd;
(u) Transportation Services Agreement dated 16
September 1997 between Coastal Gas Pipelines
Victoria Pty Ltd and Kinetik Energy Pty Ltd;
(v) Transmission Entitlement Deed entered into or
to be entered into between Kinetik Energy Pty
Ltd and Transmission Pipelines Australia Pty
Ltd;
(w) Distribution Tariff Agreement dated 3 August
1998 between Westar Pty Ltd and Kinetik
Energy Pty Ltd;
(x) Distribution Tariff Agreement dated 3 August
1998 between Stratus Networks and Kinetik
Energy Pty Ltd;
(y) Interim SOU Transportation Agreement entered
into or to be entered into between GASCOR and
Kinetik Energy Pty Ltd;
(z) Distribution Tariff Agreement between Westar
Pty Ltd and Ikon Energy;
(aa) Connection Agreement dated 4 September 1998
between Transmission Pipelines Australia Pty
Ltd, Transmission Pipelines Australia
(Assets) Pty Ltd, Westar Assets Pty Ltd and
Westar Pty Ltd;
(bb) Connection Agreement between VENCorp and
Westar Pty Ltd;
(cc) LNG and Metering Services Agreement dated 8
September 1998 between Transmission Pipelines
Australia Pty Ltd and Kinetik Energy Pty Ltd;
(dd) Longford No Sue Deed; and
(ee) any other document which an Obligor and the
Security Trustee agree in writing will be a
Material Contract for the purposes of this
deed.
MATERIAL REGULATORY INSTRUMENT means:
(a) the MSO Rules;
(b) the Victorian Gas Industry Tariff Order;
(c) the Wimmera and Colac Tariff Order;
(d) the National Third Party Access Code for
Natural Gas Pipeline Systems and the
Victorian Third Party Access Code for Natural
Gas Pipeline Systems;
(e) the Access Arrangements for the distribution
system; and
(f) the National Electricity Code.
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.
NET CASH FLOW means, in respect of the Operating Group on a consolidated
basis for any Half Year, the operating profit (which, for the avoidance
of doubt, is before depreciation and amortisation and includes interest
income and the net proceeds from the sale of property, plant and
equipment) for that Half Year after:
(a) deducting income tax paid or payable in that
period;
(b) changes in working capital and movements in
provisions for employee entitlements and the
net losses resulting directly from the supply
of gas to all customers in the Wimmera towns
of Ararat, Stawell and Horsham; and
(c) Capital Expenditure and any amounts credited
to the Capex Reserve or the Remediation
Reserve,
and less Debt Service amounts or principal repayments or prepayments
paid or accrued during that Half Year.
NON-RECOURSE INDEBTEDNESS means any Indebtedness incurred by the Core
Borrowers, Holdco or TUA on terms that:
(a) the person ("RELEVANT PERSON") in whose
favour that Indebtedness is incurred does not
have any right to enforce its rights or
remedies (including for any breach of any
representation or warranty or obligation)
against the Core Borrowers, Holdco or TUA or
against any of their assets except for the
purpose of enforcing any Security Interest
(which does not extend to any assets which
are the subject of a Security) granted in
favour of the Relevant Person and only to the
extent of the lesser of the value of the
assets encumbered by that Security Interest
and the amount secured by that Security
Interest; and
(b) the Relevant Person is not permitted or
entitled:
(i) except as and to the extent permitted
in paragraph (a) above, to enforce any
right or remedy against, or demand
payment or repayment of any amount
from, the Core Borrowers, Holdco or
TUA;
(ii) except and to the extent permitted in
paragraph (a) above, to take any
proceedings against the Core
Borrowers, Holdco or TUA;
(iii) to apply to wind up or prove in the
winding up of the Core Borrowers,
Holdco or TUA; or
(iv) to appoint an administrator in respect
of the Core Borrowers, Holdco or TUA,
so that the Relevant Person's only right of recourse in respect of that
Indebtedness or any Security Interest securing that Indebtedness is to
the assets encumbered by that Security Interest (which assets must not
include any assets the subject of a Security).
OBLIGOR means each Core Borrower, the Guarantor, TUA and the Purchasers.
OFFSHORE PAYING AGENT means National Australia Bank Limited, Singapore
Branch.
OPERATING GROUP means each of BS1, BS2, each Purchaser and any
Subsidiary of BS1.
ORG means the Office of the Regulator-General established under the
Office of the Regulator-General Act 1994.
ORIGINAL BASE CASE MODEL means the computer model agreed on or prior to
the date of this deed between the Core Borrowers and the Agent to, among
other things, enable calculations of the financial undertakings in
clause 6.4 (Financing Undertakings), as initialled by the Core Borrowers
and the Agent.
OUTSOURCING AGREEMENT means:
(a) the agreements to be entered into between the
Purchasers or any other member of the
Operating Group and any Related Entity
relating to the provision of services in form
reasonably satisfactory to the Security
Trustee (provided that the Security Trustee
agrees that it will not object to any terms
required to be included in the agreements by
ORG) in relation to:
(i) the operation of the Core Business of
TUA (No. 10) Pty Ltd, comprising
network operations, network design and
engineering, network records, work
management (including management of
sub-contracts), property management,
contract procurement; or
(ii) the provision of customer contact
services, comprising meter reading,
invoicing and customer support in
relation to the Core Business of TUA
(No. 11) Pty Ltd and TUA (No. 10) Pty
Ltd;
(iii) corporate, secretarial, accounting,
administrative services, human
resources, public relations and
information systems for TUA (No.10)
Pty Ltd and TUA (No. 11) Pty Ltd; and
(b) the maintenance agreement between Westar and
Serco Gas Services (Vic) Pty Ltd and Serco
Australia Pty Ltd.
PARTNERSHIP means the TU Australia Holdings (Partnership) Limited
Partnership being a limited partnership formed and registered under the
Partnership Act 1958 of Victoria.
PARTNERSHIP DEED means the deed dated 27 January 1999 between each Core
Borrower establishing the Partnership, as amended by a deed dated on or
before the date of this deed.
PARTNERSHIP MORTGAGE means the mortgage made or to be made between the
Core Borrowers and the Security Trustee over the Core Borrowers'
interests in the ALP Loan Agreements and the Hedge Agreements.
PERMITTED DISPOSAL means:
(a) any disposal by a Purchaser for fair value of
obsolete assets which are no longer required
for the operation of the Core Business and
any disposal by a Purchaser of assets in
exchange for other assets of comparable value
and utility; or
(b) any disposal by a Purchaser of any other
assets provided that the aggregate value of
such disposals in any Financial Year does not
exceed $10,000,000.
PERMITTED DISTRIBUTION means any payment made by an Obligor under
any Intercompany Loan Agreement for the sole purpose of paying an amount
due and payable to the Senior Creditors provided such payment is paid to
a Senior Creditor in accordance with the Bank Finance Documents.
PERMITTED INDEBTEDNESS means:
(a) any Indebtedness incurred under the Bank
Finance Documents, the Junior Finance
Documents or the Eastern Loan Agreement; or
(b) any Indebtedness under the Intercompany Loan
Agreements; or
(c) any Qualifying Subordinated Debt; or
(d) Indebtedness raised by the Core Borrowers to
repay all of the Senior Debt or the Tranche A
Facility (as defined in the Syndicated
Facilities Agreement); or
(e) any guarantee issued by a Purchaser in
relation to the obligations of another
Purchaser provided those obligations are or
have been incurred in the ordinary course of
the Core Business; or
(f) in respect of TUA:
(i) any Indebtedness incurred by TUA on
an unsecured basis in existence as
at the date of this deed; or
(ii) any Non-Recourse Indebtedness;
(iii) any performance guarantees issued by
TUA, not being guarantees of
Indebtedness; or
(g) any other Indebtedness approved in writing by
the Security Trustee (acting upon the
instructions of the Majority of Senior
Creditors) provided that such approval will
not be withheld if:
(i) the Indebtedness is Non-Recourse
Indebtedness; and
(ii) the Security Trustee receives a
satisfactory legal opinion from the
Core Borrowers' legal counsel that
the exercise of any rights by the
lender of that Non-Recourse
Indebtedness including, without
limitation, by exercising any rights
under a Security Interest will not
give rise to a right to a party
(other than a Senior Creditor) to
terminate any Material Contract or
otherwise jeopardise the assets and
business of the Purchasers; and
(iii) the amount of the Non-Recourse
Indebtedness will not exceed 70% of
the value of the assets against
which the relevant lender may have
recourse for the repayment of the
Non-Recourse Indebtedness; and
(iv) the Indebtedness will not adversely
affect the ability of the Core
Borrowers to obtain an investment
grade credit rating in respect of a
facility, or if such an investment
grade credit rating has been
obtained, it will not lead to a
downgrade of that rating below BBB;
or
(h) the following Indebtedness incurred by the
Purchasers for a period not exceeding 60 days
from Financial Close:
(i) certain payroll, cheque cashing, corporate
credit card, merchant arrangements, tape
negotiation advice and related same day
transaction facilities to be provided by
Westpac Banking Corporation; and
(ii) indemnity obligations in respect of
two bank guarantees (each having a
face value of $1,000,000) issued by
Westpac Banking Corporation.
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 mechanic's, workmen's or any like lien or
right of set-off arising in the ordinary
course of business, securing or otherwise
relating to Indebtedness which is not yet
overdue or which has been contested or
litigated in good faith, where the aggregate
amount of the Indebtedness in respect of all
such liens and rights of set-off does not at
any time exceed $500,000;
(c) any Security Interest in respect of deposits
of money or property in an amount, or of a
value, not exceeding $1,000,000 in aggregate,
by way of security for the performance of any
statutory obligations arising in the ordinary
course of business;
(d) the Security;
(e) any Security Interest granted by a Core
Borrower, Holdco or TUA provided it only
secures Non-Recourse Indebtedness permitted
to be incurred under this deed;
(f) any right of set off arising under a Material
Contract;
(g) the TUA Mortgage; and
(h) any other Security Interest approved in
writing by the Security Trustee.
POTENTIAL EVENT OF DEFAULT means an event which, with the giving of
notice or lapse of time, would become an Event of Default.
PROPERTIES means all properties or premises leased, occupied or used or
owned by an Obligor at any time.
QUALIFYING SUBORDINATED DEBT means the principal amount (excluding
capitalised interest) of any Indebtedness of an Obligor:
(a) which is not repayable (in whole or in part)
by an Obligor before payment in full of the
Senior Debt;
(b) the interest rate or effective interest rate
applicable to which is:
(i) where the proposed lender is a Related
Entity of an Obligor then, except in
relation to the Intercompany Loan
Agreements, no more than 3% per annum
above the interest rate applicable
from time to time to drawings under
the Syndicated Facilities Agreement;
and
(ii) in all other circumstances, an
interest rate or effective interest
rate determined on normal arm's length
commercial terms; and
(c) which is subordinated on substantially the
same terms as the Junior Debt is subordinated
under this deed.
QUARTER means each period of three months ending on 31 March, 30 June,
30 September and 31 December in each year.
RECOVERED MONEY means the aggregate amount received in accordance with
clause 9 which has not been distributed under this deed.
RECOVERED MONEY DISTRIBUTION DATE means a day on which Recovered Money
is available for distribution in accordance with clause 9.
RELATED ENTITY has the meaning it has in the Corporations Law.
RELEVANT JUNIOR DEBT means, in respect of a Junior Creditor, the Junior
Debt in respect of that Junior Creditor.
RELEVANT SENIOR DEBT means, in respect of a Senior Creditor, the Senior
Debt in respect of that Senior Creditor.
REMEDIATION RESERVE means a reserve set aside by the Purchasers and
which has not been directly or indirectly funded by Senior Debt (except
to the extent that it constitutes a drawing on a revolving facility
after the date of Financial Close) and which may only be used:
(a) to fund land remediation costs in excess of
the land remediation costs projected to be
paid in accordance with the Base Case Model;
or
(b) to pay a Distribution permitted to be paid
under clause 6.5.
RESERVE ACCOUNT means an account held in the name of the Purchasers for
the purposes of Restructuring Costs.
RESTRUCTURING COSTS means any integration expenses, redundancy and
termination costs or payments to, or in respect of, employees of the
Purchasers and as otherwise contemplated in the Base Case Model and
included in the business plan and industrial relations strategy prepared
by the Purchasers prior to Financial Close.
REPRESENTATIVE of a person means any director, officer, delegate or
agent of that person.
RETAIL LICENCE means:
(a) the gas retail licence issued to Kinetik by
ORG pursuant to the Gas Industry Act 1994
with effect from 11 December 1997, as amended
and transferred to TUA (No. 11) Pty Ltd on or
before the date of Financial Close; and
(b) the electricity retail licence issued to
Kinetik by ORG pursuant to the Electricity
Industry Act 1993 with effect from 5 November
1997, as amended and transferred to TUA (No.
11) Pty Ltd on or before the date of
Financial Close.
SALE AGREEMENT means the agreement entitled "Gas Distributor and
Retailer Asset Sale Agreement" dated 30 January 1999 made between the
Treasurer of the State of Victoria, Westar Assets, Westar, Kinetik and
the Purchasers.
SALES CONTRACTS means:
(a) Gas Sales Agreement dated 20 November 1996
between Esso Australia Resources Ltd, BHP
Petroleum (Bass Strait) Pty Ltd and GASCOR;
(b) Master Agreement dated 23 December 1998
between GASCOR, Energy 21 Pty Ltd, Ikon
Energy Pty Ltd, Kinetik Energy Pty Ltd and
Gas Release Co Pty Ltd;
(c) Agency Agreement dated 14 August 1998 between
GASCOR and Kinetik Energy Pty Ltd; and
(d) Sub-Sales Agreement dated 14 August 1998
between GASCOR and Kinetik Energy Pty Ltd.
SECURED MONEY has the meaning given to that term in a Security or the
TUA Mortgage, as the case may be.
SECURITY means this deed and:
(a) the Guarantee;
(b) the Partnership Mortgage;
(c) the Holdco Mortgage;
(d) the BS1 Mortgage, Share Mortgage and Charge;
and
(e) any other document or Security Interest
collateral to any of them.
SECURITY ACCOUNT means the account maintained by the Security Trustee
in accordance with clause 7.
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 the Security Trustee, the Agent, the Offshore
Paying Agent, each Financier, each Hedge Counterparty and any person who
has provided Indebtedness to the Core Borrowers in accordance with
paragraph (d) of the definition of "Permitted Indebtedness".
SENIOR DEBT means any amount actually or contingently owing under or in
connection with the Bank Finance Documents or any agreement pursuant to
which a Senior Creditor has provided Indebtedness to the Core Borrowers
in accordance with paragraph (d) of the definition of "Permitted
Indebtedness", whether or not then due and payable.
SHARE means, 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 of
that Senior Creditor on that day bears to the aggregate Amount Owing on
that day to all the Senior Creditors.
SHAREHOLDER DEED means the deed dated on or about the date of this deed
between GASCOR, TUA (No. 11) Pty Ltd and BS2 in relation to the removal
of directors of TUA (No. 11) Pty Ltd.
SUBORDINATED FACILITY AGREEMENT means the agreement dated on or about
the date of this deed between the Core Borrowers, Eastern and the Junior
Financier.
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 another entity which is a subsidiary of
the first within the meaning of part 1.2 division 6 of the Corporations
Law or is a subsidiary of or otherwise controlled by the first within
the meaning of any approved accounting standard.
SURETY means a person (other than the 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 AGREEMENT means the agreement dated on or about
the date of this deed between the Core Borrowers, the WCF Borrowers, the
Joint Lead Banks (as defined in that agreement), the Working Capital
Bank (defined in that agreement), the Hedge Counterparties, the Agent,
the Offshore Paying Agent and the Financiers.
SYSTEMS means for an entity, centralised and decentralised hardware,
software and networks (including interfaces, data storage and equipment
with embedded computer chips or logic) used by an entity.
TAXES means taxes, levies, imposts, charges and duties imposed by any
authority (including stamp and transaction duties) together with any
related interest, penalties, fines and expenses in connection with them,
except if imposed on the overall net income of a Creditor.
TEXAS GUARANTEE means the instrument entitled "Guaranty" to be dated on
or before Financial Close given by Texas in favour of the Junior
Financier.
TEXAS INDEMNITY means any right (whether arising by indemnity,
contribution, subrogation or otherwise) against a Core
Borrower arising in connection with the Texas Guarantee.
TOTAL FACILITY LIMIT has the meaning given to that term in
the Syndicated Facilities Agreement.
TOTAL SUBORDINATED DEBT means at any time the aggregate
consolidated principal amount of Qualifying Subordinated Debt (other
than capitalised interest).
TRANSACTION DOCUMENTS means each Finance Document, Licence,
Material Contract, any document which an Obligor acknowledges in writing
to be a Transaction Document, and any other document connected with any
of them.
TRUST FUND means the amount held by the Security Trustee
under clause 2.1 together with any other property which the Security
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.
TUA-BS1 LOAN AGREEMENT means each loan agreement dated on or
about the date of this deed between TUA (as lender) and BS1 (as
borrower).
TUA MORTGAGE means the mortgage made or to be made between
Holdco and TUA over TUA's interests in the TUA-BS1 Loan Agreement.
WCF BORROWER means each Purchaser.
WESTAR means Westar Pty Ltd (ACN 079 089 008).
WESTAR ASSETS means Westar (Assets) Pty Ltd (ACN 079 089
062).
WORKING CAPITAL TERMS AND CONDITIONS has the meaning given
to that term in the Syndicated Facilities Agreement.
YEAR 2000 COMPLIANT means in respect of all Systems that
neither its performance nor functionality is affected by dates prior to,
during or after the year 2000 and that, in particular:
(a) no value for current date causes or is likely
to cause any interruption in operation of the
Systems;
(b) date-based functionality of the Systems
behaves consistently for dates prior to,
during and after year 2000;
(c) in all data storage, the century in any date
must be specified either explicitly or by
unambiguous algorithms or inferencing rules;
(d) the year 2000 must be recognised as a leap
year.
1.2 In this deed, unless the contrary intention appears:
(a) a reference to this deed or another
instrument includes any variation or
replacement of any of them;
(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.
1.3 Headings are inserted for convenience and do not
affect the interpretation of this deed.
INCORPORATION
1.4 Unless the context otherwise requires, a capitalised
term used in this deed and not defined in it will
have the meaning given in the Bank Finance Document
which defines it.
AGENT
1.5 The Agent enters into this deed in its capacity as
Agent for and on behalf of the Financiers and Hedge
Counterparties so as to bind itself and the
Financiers and Hedge Counterparties.
2 DECLARATION OF TRUST
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2.1 The Security 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.
2.2 The trust established under this deed commences on
the date of this deed and unless determined earlier
is to end on the day prior to the eightieth
anniversary of the date of this deed.
2.3 The perpetuity period applicable to the trust
established under this deed is the period of 80
years commencing on the date of this deed.
2.4 The trust established under this deed is to be known
as the TU Australia Holdings Trust.
3 DUTIES, POWERS AND RIGHTS OF SECURITY TRUSTEE
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AUTHORITY OF SECURITY TRUSTEE
3.1 The Security Trustee is appointed to enter into and
act as trustee for the Senior Creditors under the
Bank Finance Documents.
AUTHORITY OF SECURITY TRUSTEE TO EXECUTE FINANCE DOCUMENTS
3.2 Each Senior Creditor authorises the Security Trustee
to execute and deliver those of the Bank Finance
Documents to which it is intended to be a party.
POWER OF THE SECURITY TRUSTEE
3.3 The Security Trustee shall have the rights,
discretions and powers delegated to it under this
deed, and all other powers reasonably incidental to
them. However, the Security Trustee does not have
any fiduciary or other duties or responsibilities to
any party, except as expressly set out in the Bank
Finance Documents.
SEEKING INSTRUCTIONS; CONSULTATION
3.4 The Security Trustee is not obliged to consult with
or seek instructions from the Creditors before giving
any consent, approval or agreement or exercising any
right, power or discretion under a Bank Finance
Document, except where that Bank Finance Document
expressly provides otherwise. In that event, the
Security Trustee may seek instructions from those
Senior Creditors who are entitled at that time to
vote on any such instruction, and may specify a
period of not less than 5 Business Days within which
instructions are to be provided. That period may be
shortened with the consent of the Senior Creditors.
If a Senior Creditor does not provide instructions in writing within
the period specified, it shall be deemed (only for the purpose of
determining whether instructions have been given by the Majority of
Senior Creditors) to have an Amount Owing of zero.
ACTION IN THE ABSENCE OF INSTRUCTIONS
3.5 In the absence of instructions, the Security Trustee
need not act, but the Security Trustee may act, as it
considers to be in the interests of the Senior
Creditors. If the Security Trustee considers it is in
the best interest of the Senior Creditors to
exercise, or not to exercise, a right, power or
discretion before it is able to obtain instructions
from the Senior Creditors it may (but is not obliged
to) do so. This includes the exercise of a right,
power or discretion to appoint a Receiver pending
obtaining instructions.
OBLIGORS NOT TO INVESTIGATE AUTHORITY
3.6 No Obligor need inquire whether any instructions
have been given to the Security Trustee by the
Majority of Senior Creditors or as to the terms of
those instructions. As between any Obligor and the
Creditors, all action taken by the Security Trustee
under a Bank Finance Document will be taken to be
authorised.
AMENDMENTS, WAIVERS, RELEASES AND ENFORCEMENT
3.7 The Security Trustee shall act on the instructions
of the Senior Creditors in accordance with clause 19
of the Syndicated Facilities Agreement (subject to
any necessary changes, including where the Security
Trustee is a person other than the Agent).
LIMITS ON DUTIES OF SECURITY TRUSTEE
3.8 The Security Trustee has no duty to:
(a) (NO OBLIGATION TO ACT UNLESS INDEMNIFIED)
exercise any right it may have as a result of
an Event of Default, unless it is indemnified
to its reasonable satisfaction;
(b) (NO OBLIGATION TO PROVIDE INFORMATION)
provide any Creditor (or any other person)
with any credit or other information
concerning the affairs, financial condition
or business of any Obligor which may come
into its possession as Security Trustee,
except as stated in clause 3.11;
(c) (NO ACTION PENDING DIRECTION) exercise any
right, if it has sought instructions under
clause 3.4 as to whether it should exercise,
or as to the manner of exercise, of the
right, pending its receipt of those
instructions (notwithstanding any other
provision of a Bank Finance Document which
imposes a duty on it to do so); or
(d) (DEFECTS IN TITLE) enquire whether there is,
or seek perfection of, a defect in title of
either an Obligor to any Secured Property or
of the Security Trustee in relation to its
interest in the Secured Property unless (in
the context of any particular defect) it is
directed to do so by a Majority of Senior
Creditors.
SECURITY TRUSTEE'S DUTY IS ONLY TO SENIOR CREDITORS
3.9 The Security Trustee owes its duties under the Bank
Finance Documents to the Senior Creditors only and
not to any Junior Creditor or Obligor.
DUTY OF SECURITY TRUSTEE TO ACT HONESTLY
3.10 In exercising its rights and performing its duties
under the Bank Finance Documents, the Security
Trustee must act honestly and in what it considers
to be the interests of the Senior Creditors.
NOTICE OF EVENT OF DEFAULT
3.11 The Security Trustee is not to be regarded as having
knowledge of the occurrence of an Event of Default
unless it receives notice from another Senior
Creditor or an Obligor stating that an Event of
Default has occurred and giving reasonable
particulars.
INDEMNITY TO SECURITY TRUSTEE
3.12 If the Security Trustee is a person other than the
Agent, the Agent (on behalf of the Senior Creditors,
rateably in accordance with their respective Amounts
Owing) shall indemnify the Security Trustee, on
demand, against any Loss suffered or incurred by the
Security Trustee as a result of, in connection with
or in contemplation of:
(a) the stamping and registration of the Bank
Finance Documents;
(b) the exercise, enforcement or preservation, or
attempted exercise, enforcement or
preservation, of any of its rights as
Security Trustee;
(c) the performance or purported performance of
its duties under the Bank Finance Documents;
(d) any action or omission by the Security
Trustee under (or purportedly under) any Bank
Finance Document; or
(e) anything done or not done by the Security
Trustee pursuant to any direction or
authorisation of a Majority of Senior
Creditors.
This includes, in each case, the fees and expenses on a full indemnity
basis of legal and other professional advisors.
This clause does not apply to the extent that:
(f) the Security Trustee is reimbursed on demand
by an Obligor for any cost or expense
incurred or payable by the Security Trustee;
or
(g) the relevant Loss was suffered or incurred as
a direct result of the Security Trustee's
fraud, negligence or wilful misconduct.
Each Representative of the Security Trustee shall be entitled to the
benefit of this clause 3.12. The Security Trustee holds that benefit on
their behalf.
SECURITY TRUSTEE MAY ALSO BE A CREDITOR
3.13 The parties acknowledge and agree that the Security
Trustee may be a Junior Creditor. If the Security
Trustee is or becomes a Creditor in another
capacity, its obligations and rights in that
capacity are or will be the same as those it would
have had if it was not the Security Trustee.
NO REPRESENTATION BY SECURITY TRUSTEE
3.14 The Agent and each other Creditor acknowledge that
the Security Trustee has made no representation or
given any warranty upon which it has relied, except
to the extent expressly set out in this deed.
NO INDIVIDUAL ENFORCEMENT BY CREDITORS
3.15 In relation to the rights which the Security Trustee
holds under the Bank Finance Documents on behalf of
the Senior Creditors, each Senior Creditor
acknowledges that:
(a) the right is only exercisable by the Security
Trustee; and
(b) the Senior Creditor is not empowered to waive
or vary the right.
RELIANCE ON DOCUMENTS AND EXPERTS
3.16 The Security Trustee may rely on:
(a) any document (including any facsimile
transmission, telegram or telex) believed by
it to be genuine and correct; and
(b) advice and statements of lawyers, independent
accounts and other experts selected by the
Security Trustee.
NOTICE OF TRANSFER
3.17 The Security Trustee may treat each Creditor as the
holder of the Creditor's respective rights under the
Finance Documents, Eastern Loan Agreement and
Intercompany Loan Agreements:
(a) until it has received a notice of assignment
satisfactory to it; and
(b) even if it has received a notice of
assignment, unless and until the assignee is
or has become a Creditor.
DISTRIBUTION OF INFORMATION TO AGENT AND NOTE AGENT
3.18 The Security Trustee shall provide a copy of each
notice, report and other document given to it under
the Bank Finance Documents to the Senior Creditors.
4 SUBORDINATION
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SUBORDINATION
4.1 Despite any other agreement between a Junior
Creditor and an Obligor but except as permitted by
clauses 4.6 and 4.7, each party agrees with each
other party that no part of the Junior Debt is due
for payment or capable of being declared due for
payment unless:
(a) the Senior Debt is satisfied or repaid in
full; or
(b) an Event occurs; or
(c) that Junior Debt is refinanced by Qualifying
Subordinated Debt and the refinancing party
has agreed to be bound under this deed as a
Junior Creditor.
RIGHTS AND OBLIGATIONS FOLLOWING AN EVENT
4.2 If an Event occurs, then the Junior Debt is payable
immediately.
4.3 If an Event occurs, then each Junior Creditor agrees,
on request from the Security Trustee, to:
(a) prove for the whole of its Relevant Junior
Debt; and
(b) immediately send to the Security Trustee a
copy of its notice of proof.
4.4 A Junior Creditor may not prove for its Relevant
Junior Debt except following a request from the
Security Trustee under clause 4.3.
4.5 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 Security Trustee for the
account of the Senior Creditors, without the need for
any demand, an amount equal to the lesser of the full
amount so received, recovered or paid and the full
amount of the Senior Debt at that time.
JUNIOR CREDITOR UNDERTAKINGS
4.6 A Junior Creditor may not, without the consent of
the Security Trustee or, following the occurrence of
an Event of Default, except as directed by the
Security Trustee:
(a) directly or indirectly demand payment of, sue
for, accept payment or repayment of (except
payments or repayments which constitute
Permitted Distributions or are permitted
under clause 6.5) 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) novate, vary, replace or rescind or waive any
of its rights under any agreement or document
under which an Obligor's obligations in
respect of its Relevant Junior Debt arise
(other than any extension to the term of the
Junior Finance Debt); 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 except in the case of
the TUA Mortgage; or
(e) accept the benefit of any guarantee in
respect of its Relevant Junior Debt other
than, in the case of the Junior Financier,
the Texas Guarantee; or
(f) suffer to exist or take a Security Interest
to secure payment of its Relevant Junior Debt
except in the case of the TUA Mortgage; or
(g) borrow or raise money from or otherwise
become indebted to an Obligor except in
accordance with the Intercompany Loan
Agreements; or
(h) convert any Junior Debt into shares in an
Obligor.
PERMITTED JUNIOR FINANCIER PAYMENTS
4.7 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 under
any document relating to any Senior Debt,
and subject to the payment being permitted under clause 6.5, an Obligor
may pay, satisfy or discharge, and the Junior Financier and Eastern may
receive and retain, payment of scheduled payments of interest and
principal on the Junior Finance Debt and the Eastern Debt not earlier
than the date the same are scheduled to be due in accordance with, and
in the amounts contemplated by, the terms of the Junior Finance
Documents and the Eastern Loan Agreement and the Junior Financier and
Eastern, (as the case may be) may make demands in respect of, or so as
to establish a liability to pay, any amount so permitted to be paid.
4.8 Except with the prior written consent of the
Security Trustee or, following the occurrence of an
Event of Default, as directed by the Security
Trustee, a Junior Creditor may not take any action
to recover the Relevant Junior Debt including,
without limitation, by:
(a) voting for the winding up of an Obligor; or
(b) requisitioning a meeting to consider:
(i) a resolution for the winding up of an
Obligor; or
(ii) a scheme of arrangement for an
Obligor; or
(iii) a resolution for the appointment of
an administrator to an Obligor; or
(c) applying to the court to wind up an Obligor.
4.9 If a liquidator, provisional liquidator or
administrator of an Obligor sets off against the
Relevant Junior Debt any amounts in respect of which
a Junior Creditor is indebted to the Obligor, then
the Junior Creditor indemnifies the Senior Creditors
against loss they suffer because the amount set off
is not part of its Relevant Junior Debt.
OBLIGORS
4.10 Each Obligor may not, without the consent of the
Senior Creditors:
(a) permit or suffer any guarantee to be given in
respect of the Junior Debt other than, in the
case of the Junior Finance Debt, the Texas
Guarantee; or
(b) suffer to exist or grant a Security Interest
to secure payment of the Junior Debt except
the TUA Mortgage; or
(c) directly pay (except for payments which
constitute Permitted Distributions or are
permitted under clause 6.5) or in any way
reduce the Obligor's assets to discharge the
Junior Debt; or
(d) novate, vary, replace or rescind any
agreement or instrument under which the
Obligor's obligations in respect of the
Junior Debt arise (other than any extension
to the term of the Junior Finance Debt); 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; 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.
4.11 Each Obligor agrees to notify the Senior Creditor
immediately if it receives a demand whether direct
or indirect for payment of the Junior Debt.
REVOCATION OF APPROVALS
4.12 Any approval given by the Security 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 Security Trustee demands payment of the
Senior Debt from an Obligor in accordance
with the Bank Finance Documents.
PRESERVATION OF SENIOR CREDITOR'S RIGHTS
4.13 No obligation of a Junior Creditor arising under
this deed is released or abrogated, prejudiced or
affected by any act matter or thing that a Senior
Creditor may do or omit to do which but for this
provision would or might release abrogate prejudice
or affect the obligations of the Junior Creditor
including, without limitation:
(a) the granting of time, credit or any
indulgence or concession to an Obligor or any
Surety by a Security 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 or official
management of an Obligor, any Junior Creditor
or any Surety which is an entity or the
bankruptcy or death of any Surety who is a
natural person, or any Junior Creditor or an
Obligor or any Surety entering into any
compromise or assignment of property or
scheme of arrangement or composition of debts
or scheme of reconstruction;
(c) any person giving a guarantee or other
Security Interest in respect of all or any of
the Senior Debt;
(d) failure by an Obligor or any Surety or any
other person to provide any Security Interest
which ought to be provided or to have been
provided under any agreement in respect of
all or any part of the Senior Debt;
(e) any alteration, addition or variation to any
agreement in respect of all or any part of
the Senior Debt;
(f) any Security Interest held or taken at any
time by a Senior Creditor for all or any part
of the Senior Debt being void, defective or
informal;
(g) an Obligor or any Surety being discharged
from its obligation to pay all or any of the
Senior Debt otherwise than by payment or
satisfaction of those moneys to a Senior
Creditor; or
(h) a Junior Creditor being discharged from its
obligations to a Senior Creditor under this
deed.
4.14 If a Senior Creditor holds any other Security
Interest for or right in respect of all or any of the
Senior Debt, then:
(a) the Senior Creditor need not resort to that
other Security Interest or right before
enforcing its rights under this deed; 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.
4.15 This deed does not prejudicially affect and is not
prejudicially affected by any Security Interest or
guarantee held by a Senior Creditor either at the
date of this deed or at any subsequent time.
4.16 Nothing contained in this deed, merges, discharges,
extinguishes, postpones, lessens or prejudices any
Security Interest now held or which may subsequently
be held or taken by a Senior Creditor for payment of
any of the Senior Debt. Nor does this deed or any
Security Interest:
(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 agreement
discharges, extinguishes, postpones, lessens or otherwise prejudices
this agreement. A Senior Creditor is not under any obligation to resort
to any Security Interest in priority to this deed.
4.17 The subordination under this deed is a continuing
subordination and remains in full force until
payment in full of the Senior Debt.
POWER OF ATTORNEY
4.18 Each Junior Creditor irrevocably appoints the
Security Trustee and each Authorised Officer of the
Security Trustee severally its attorney.
4.19 Each attorney may:
(a) in the name of the Junior Creditor or the
attorney do anything which the Junior
Creditor may lawfully do to exercise a right
of proof of the Junior Creditor following an
Event occurring (including, without
limitation, executing drawdown notices,
repayment notices or any notice in relation
to amounts payable under Intercompany Loan
Agreements, executing deeds and instituting,
conducting and defending legal proceedings
and receiving any dividend arising out of
that right); and
(b) delegate its powers (including, without
limitation, this power of delegation) to any
person for any period and may revoke a
delegation; and
(c) exercise or concur in exercising its powers
even if the attorney has a conflict of duty
in exercising its powers or has a direct or
personal interest in the means or result of
that exercise of powers.
4.20 The Junior Creditor agrees to ratify anything done
by an attorney or its delegate in accordance with
clause 4.19.
4.21 The Junior Creditor may not exercise the right of
proof referred to in clause 4.19 independently of the
attorney.
APPLICATION AS BETWEEN JUNIOR FINANCE DEBT AND EASTERN DEBT AND TEXAS INDEMNITY
4.22 If the Senior Debt has been paid in full, the
provisions of clause 4 apply (whether or not an
Event has occurred) as between the Junior Financier,
Holdco, Texas and Eastern and the other Obligors as
if:
(a) a reference to the Senior Creditors were a
reference to the Junior Financier;
(b) a reference to the Senior Debt were a
reference to the Junior Finance Debt;
(c) a reference to the Junior Debt were a
reference to the Texas Indemnity and the
Eastern Debt and the Intercompany Loan Debt;
(d) a reference to the Security Trustee were a
reference to the Junior Financier; and
(e) a reference to the Junior Creditors were a
reference to Texas and Eastern and Holdco and
the other Obligors.
TEXAS GUARANTEE
4.23 Nothing in this clause 4 shall restrict the rights
of the Junior Financier under the Texas Guarantee in
respect of any amount which is scheduled to be due
in accordance with the Junior Finance Documents and,
but for this clause 4, would be due and payable to
the Junior Financier.
CORPORATIONS LAW
4.24 This clause 4 is intended to operate as a "debt
subordination" (as defined in section 563C(2) of the
Corporations Law) by each Junior Creditor.
OBLIGORS
4.25 Each Obligor acknowledges and agrees that any
amendment or variation to any Bank Finance Document
does not affect, prejudice or relieve any of the
Obligors of their respective obligations under the
Intercompany Loan Agreements.
TEXAS
4.26 The parties acknowledge that the only obligations
incurred by Texas in entering into this deed are as
a Junior Creditor and that those obligations only
arise to the extent to which Texas has any right
(whether arising by indemnity, contribution,
subrogation or otherwise) against a Core Borrower in
connection with any payment by Texas under the Texas
Guarantee.
5 REPRESENTATIONS AND WARRANTIES
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REPRESENTATIONS AND WARRANTIES
5.1 Each Obligor represents and warrants (except in
relation to matters disclosed to the Security
Trustee by the Obligor and accepted by the Security
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 set out in the Details, is
validly existing under those laws and has
power and authority to carry on its business
as it is now being conducted; and
(b) (POWER) it has power (including, without
limitation, power under the Partnership Deed,
in the case of each Core Borrower) to enter
into the Transaction Documents to which it is
a party and observe its obligations under
them; and
(c) (AUTHORISATIONS) it has in full force and
effect the Authorisations necessary for it to
enter into the Transaction Documents to which
it is a party, to observe its obligations and
exercise its rights under them and to allow
them to be enforced; and
(d) (VALIDITY OF OBLIGATIONS) its obligations
under the Transaction Documents to which it
is a party are valid and binding and are
enforceable against it in accordance with
their terms except to the extent limited by
equitable principles and laws affecting
creditors' rights generally; and
(e) (NO CONTRAVENTION OR EXCEEDING POWER) the
Transaction Documents to which it is a party
and the transactions under them which involve
it do not contravene its:
(i) constituent documents (if any); or
(ii) any law or obligation by which it is
bound or to which any of its assets
are subject or cause a limitation on
its powers or the powers of its
directors to be exceeded which, in the
case of the Licences or the Material
Contracts to which it is a party, is
or is likely to be a Material Adverse
Effect; and
(f) (ACCOUNTS) its most recent audited Financial
Statements last given to the Security Trustee
are a true and fair statement of its
financial position as at the date to which
they are prepared and disclose or reflect all
its actual and contingent liabilities as at
that date; and
(g) (CONSOLIDATED ACCOUNTS) if it is required to
prepare consolidated Financial Statements
under the Corporations Law, the most recent
audited consolidated Financial Statements of
the economic entity constituted by it and
the entities which it controls last given to
the Security Trustee are a true and fair
statement of the economic entity's financial
position as at the date to which they are
prepared and disclose or reflect all the
economic entity's actual and contingent
liabilities as at that date; and
(h) (NO MATERIAL CHANGE) there has been no change
in its financial position since the date to
which its Financial Statements last given to
the Security Trustee were prepared which is
likely to be a Material Adverse Effect; and
(i) (NO MATERIAL CHANGE TO ECONOMIC ENTITY) if it
is required to prepare consolidated Financial
Statements under the Corporations Law, there
has been no change in the consolidated
financial position of the economic entity
constituted by it and the entities which it
controls since the date to which the
consolidated Financial Statements of the
economic entity last given to the Security
Trustee were prepared which is likely to be a
Material Adverse Effect; and
(j) (EVENT OF DEFAULT) no Event of Default which
has not been waived or (to the best of its
knowledge, information and belief having made
due enquiry) Potential Event of Default
(except if notice of that Potential Event of
Default has been given to the Security
Trustee) continues unremedied; and
(k) (DEFAULT UNDER LAW - MATERIAL ADVERSE EFFECT)
it is not in breach of a law or obligation
affecting it or its assets in a way which is
or is likely to be a Material Adverse Effect;
and
(l) (LITIGATION) there is no proceeding or any
pending or (to the best of its knowledge,
information and belief having made due
enquiry) threatened proceeding affecting it
or any of its assets before a court,
Governmental Agency, commission or arbitrator
which could reasonably be expected to result
in a Material Adverse Effect; and
(m) (NOT A TRUSTEE) it does not enter into any
Transaction Document as trustee; and
(n) (OWNERSHIP OF PROPERTY) it is the beneficial
owner of and has good title to all property
held by it or on its behalf and all
undertakings carried on by it free from
Security Interests other than Permitted
Security Interests; and
(o) (BENEFIT) it benefits by entering into the
Transaction Documents to which it is a party;
and
(p) (SOLVENCY) no Insolvency Event has occurred
and is continuing in respect of it; and
(q) (NO BENEFIT TO RELATED PARTY) it has not
contravened and will not contravene section
243H or section 243ZE of the Corporations Law
by entering into any Transaction Document or
participating in any transaction in
connection with a Transaction Document; and
(r) (NO IMMUNITY) it has no immunity from the
jurisdiction of a court or from legal
process; and
(s) (YEAR 2000) in the case of each member of the
Operating Group, it will be Year 2000
Compliant by 30 September 1999; and
(t) (INFORMATION) to the best of its knowledge
and belief, having made due enquiry, all
historical information (including, without
limitation, the Base Case Model but excluding
any information provided by the Victorian
Government, Westar or Kinetik) provided to
each Creditor or a Related Entity of any of
them, by or on behalf of:
(i) an Obligor or Texas during the period
up to and including the date of this
deed; and
(ii) an Obligor in respect of the period
after the date of this deed,
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 (after due enquiry of Texas, in respect of
information provided during the period up to and including the date of
this deed and after due enquiry of any other person providing
information to the Creditor or a Related Entity of any of them on behalf
of an Obligor or, during the applicable periods, of Texas) there are no
material facts or circumstances which have not been disclosed to the
Security Trustee and which, if disclosed, might reasonably be expected
to significantly adversely affect the decision of a person considering
whether to provide financial accommodation to a Borrower and all
forecasts and projections have been made in good faith and in the case
of information provided by the Victorian Government, Westar and Kinetik,
to the best of its knowledge and belief, such information is true and
accurate in all material respects; and
(u) (SHAREHOLDINGS) as at the date of this deed:
(i) Texas is the ultimate holding company
of TUA; and
(ii) TUA legally and beneficially holds
all of the issued shares in BS1; and
(iii) BS1 legally and beneficially holds
all of the issued shares in BS2; and
(iv) BS2 legally and beneficially holds
all of the shares in TUA (No. 10) Pty
Ltd and TUA (No. 11) Pty Ltd; and
(v) Texas, directly or indirectly through
one or more interposed companies,
holds all of the issued shares in the
companies comprising the Core
Borrowers; and
(vi) the Core Borrowers legally and
beneficially hold all of the issued
shares in Holdco,
and in respect of each day from and including the date of Financial
Close:
(vii) Texas indirectly through one or more
interposed companies, holds all of
the issued shares in TUA; and
(viii) Texas, directly or indirectly through
one or more interposed companies,
holds all of the issued shares in the
Core Borrowers; and
(ix) the Core Borrowers legally and
beneficially hold all of the issued
shares in Holdco; and
(x) Holdco legally and beneficially holds
all of the issued shares in TUA; and
(xi) TUA legally and beneficially holds
all of the issued shares in BS1; and
(xii) BS1 legally and beneficially holds
all of the issued shares in BS2; and
(xiii) BS2 legally and beneficially holds
all of the issued shares in TUA (No.
10) Pty Ltd and TUA (No. 11) Pty Ltd;
and
(xiv) TUA legally and beneficially owns all
of the issued shares in any Related
Entity which has or will enter into
an Outsourcing Agreement with a
Purchaser; and
(v) (CONTROL) Texas ultimately controls the
composition of the board of directors of each
Obligor and no person other than Texas and
the board of directors of the relevant
Obligor has management and operational
control of an Obligor; and
(w) (SUBSIDIARIES) the Operating Group does not
have any Subsidiaries, other than those
notified by it to the Security Trustee; and
(x) (RANKING) its obligations under the Bank
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 or as otherwise provided in the
Bank Finance Documents; and
(ii) in terms of repayment or payment in
winding up, in priority to the
Qualifying Subordinated Debt; and
(y) (TAXATION) to the best of its knowledge,
information and belief having made due
enquiry, it has complied with all material
taxation laws in all jurisdictions in which
it is subject to Taxes, it has paid all
material Taxes due and payable by it, other
than Contested Taxes; and
(z) (INSURANCE) in the case of the Purchasers,
all insurances considered appropriate by the
Purchasers and Security Trustee and which are
available on reasonable and commercial terms
to its:
(i) business, assets and operations,
including loss of revenue arising from
loss or damage to its own assets or
the assets of all suppliers or
customers; and
(ii) public liability in regard to all
operations in respect of general and
products liability, including the
failure of gas supply liability,
bushfire liability; and
(iii) professional indemnity liability; and
(iv) directors and officers liability,
have been effected and are in full force and effect, it has not made any
material misstatement or misrepresentations or omitted to disclose any
material facts to the insurers or their agents in relation thereto and
it is not aware of any reason giving rise to any right or likelihood
that any such policies may be terminated or that any insurers thereunder
will refuse to pay any claim when made; and
(aa) (INTELLECTUAL PROPERTY) in the case of the
Purchasers, it owns, or has the right and
licence to use, all trade secrets,
confidential information, know-how, patents,
trade marks, designs (whether registered or
unregistered), copyright, and computer
programs necessary for the conduct of the
Core Business; and
(bb) (ENVIRONMENTAL LAWS) in the case of the
Purchasers, the occupation, use and
development of each of its Properties
complies with all Environmental Laws and all
Authorisations required under any
Environmental Law relating to those
Properties are in full force and effect other
than non-compliances which are neither likely
to have a Material Adverse Effect nor likely
to create any potential liability for the
Senior Creditors; and
(CC) (LICENCES) the Licences are validly issued
under the Gas Industry Act 1994 and the
Electricity Industry Act 1993, as the case
may be, and are in full force and effect and,
to the best of its knowledge, no event or
circumstance has arisen or is likely to arise
which may give rise to any right to revoke,
rescind, terminate or suspend any Licence
other than an event or circumstance in
respect of which:
(i) the ORG has issued a `no action'
letter, which is still in effect to a
Purchaser indicating that the ORG will
not be taking any action; or
(ii) there has been insufficient time to
obtain a `no action' letter from the
ORG and in respect of which the
Purchaser has demonstrated to the
Agent that it has been diligently
pursuing the issue by the ORG of a
`no action' letter and the remedy of
any actual or potential contravention
of a Licence condition arising from
the event or circumstance and that a
`no action' letter is likely to be
issued by the ORG; or
(iii) the event or circumstance could not
reasonably be expected to cause the
ORG to exercise any right to revoke,
rescind, terminate or suspend any
Licence; and
(dd) (OTHER MATERIAL AUTHORISATIONS) in the case
of the Purchasers, no other material
Authorisations are required which have not
been or cannot now be obtained by it to
enable it to conduct its business; and
(ee) (SINGLE PURPOSE COMPANIES) in the case of:
(i) each Borrower and Holdco it does not
carry on any business other than as
contemplated by its entry into and
observance of obligations under the
Transaction Documents to which it is a
party and the transactions permitted
under this deed;
(ii) BS1 and BS2, it does not carry on any
business other than as contemplated by
its entry into and observance of
obligations under the Transaction
Documents to which it is a party;
(iii) each Purchaser, it does not carry on
any business other than the Core
Business; and
(ff) (FIRB) all necessary approvals and
authorisations required under the Foreign
Acquisitions and Takeovers Act 1975 (Cth)
necessary for the Purchasers to acquire and
own the Assets and carry on the business
contemplated by the Transaction Documents to
which it is a party have been obtained and
are in full force and effect; and
(gg) (MATERIAL REGULATORY INSTRUMENTS AND
CONTRACTS) in the case of each Purchaser, it
is not:
(i) without affecting clause 5.1(cc), in
breach of any Material Regulatory
Instrument which is or is likely to be
a Material Adverse Effect; and
(ii) in default under any Material Contract
to which it is a party where such
default is or is likely to be a
Material Adverse Effect; and
(hh) (PARTNERSHIP) the Partnership is a limited
partnership established pursuant to the
Partnership Deed and within the meaning of
and validly constituted and existing and
registered under Part 3 of the Partnership
Act 1958 of Victoria.
CONTINUATION OF REPRESENTATIONS AND WARRANTIES
5.2 The representations and warranties in clause 5.1 are
taken also to be made on each Drawdown Date and on
the date of delivery of a compliance certificate in
accordance with clause 6.1(l) of this deed by
reference to the then current circumstances. Each
Obligor agrees to notify the Agent of anything that
happens that would mean it could not truthfully
repeat all its representations and warranties in
this clause 5 on each Drawdown Date and on the date
of delivery of a compliance certificate in
accordance with clause 6.1(l) of this deed by
reference to the then current circumstances. A
notification under this clause 5.2 does not limit
the Security Trustee's rights under clause 8.
6 UNDERTAKINGS
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GENERAL UNDERTAKINGS
6.1 Each Obligor undertakes to:
(a) (ACCOUNTING RECORDS) keep proper accounting
records and ensure that each of its
Subsidiaries does the same; and
(b) (INFORMATION) in the case of the Core
Borrowers, give the Security Trustee any
document or other information that the
Security Trustee reasonably requests from
time to time; and
(c) (COPIES) in the case of the Core Borrowers,
give the Security Trustee sufficient copies
of any communication or document it is
required to give the Security Trustee so as
to enable the Security Trustee to give one
copy to each Senior Creditor; and
(d) (STATUS CERTIFICATES) in the case of the Core
Borrowers, on reasonable request from the
Security Trustee if the Security Trustee
considers in good faith that an Event of
Default or Potential Event of Default may
have occurred, give the Security Trustee a
certificate signed by two of its directors
which states whether an Event of Default or
Potential Event of Default continues
unremedied; and
(e) (MAINTAIN AUTHORISATIONS) obtain, renew on
time and comply with the terms of, each
Authorisation necessary for it to enter into
the Transaction Documents to which it is a
party, to observe its obligations and
exercise its rights under them and to allow
them to be enforced; and
(f) (ANNUAL ACCOUNTS) give its and the
Partnership's audited Financial Statements
for each Financial Year to the Security
Trustee within 90 days after the end of that
year; and
(g) (ANNUAL CONSOLIDATED ACCOUNTS) give the
audited consolidated Financial Statements of
the economic entity constituted by it and the
entities which it controls (including the
Partnership) for each Financial Year to the
Security Trustee within 90 days after the end
of that year; and
(h) (HALF YEARLY ACCOUNTS) in the case of BS1 and
its Subsidiaries, give its Financial
Statements (audited if required under the
Corporations Law) for the first half of each
Financial Year to the Security Trustee within
60 days after the end of that half year; and
(i) (HALF YEARLY CONSOLIDATED ACCOUNTS) in the
case of BS1 and its Subsidiaries, give the
consolidated Financial Statements (audited if
required under the Corporations Law) of the
economic entity constituted by it and the
entities which it controls for the first half
of each Financial Year to the Security
Trustee within 60 days after the end of that
half year; and
(j) (QUARTERLY ACCOUNTS) in the case of BS1 and
its Subsidiaries, give unaudited quarterly
consolidated management accounts (in a form
approved by the Security Trustee) certified
by two directors for the Quarters ending 31
March and 30 September in each year to the
Security Trustee within 60 days after the end
of that Quarter; and
(k) (ANNUAL BUSINESS PLAN) in the case of the
Purchasers, give the annual business plan for
the Purchasers to the Security Trustee as
soon as practicable, but in any event by no
later than the commencement of each Financial
Year; and
(l) (COMPLIANCE CERTIFICATE) in the case of the
Core Borrowers, give to the Security Trustee
promptly after the release of the management
accounts for each Quarter, a certificate
which certificate must:
(i) be signed by an Authorised Officer of
the Core Borrower; and
(ii) set out in reasonable detail the
computations and financial and other
information necessary to establish
compliance by the Core Borrowers with
the financial undertakings in clause
6.4 (Financial Undertakings); and
(iii) state whether any Event of Default or
(to the best of its knowledge,
information and belief having made due
enquiry) Potential Event of Default
has occurred and is subsisting; and
(iv) in the case of the certificate
delivered in connection with the
management accounts for the end of a
Financial Year, be subsequently
confirmed in writing by its auditors
at the time of delivery of the annual
Financial Statements as being correct
so far as it relates to compliance by
the Core Borrowers with the financial
undertakings in clause 6.4 (Financial
Undertakings); and
(v) state the amount standing to the
credit of the Capex Reserve, the
Remediation Reserve and the Reserve
Account; and
(vi) state the amount and term of the Hedge
Agreements entered into by the Core
Borrowers and that the Core Borrowers
are in compliance with their
obligations under clause 6.2(a); and
(m) (FINANCIAL STATEMENTS) ensure that the
Financial Statements referred to above:
(i) are prepared in accordance with
Australian Accounting Standards; and
(ii) at the time of delivery, give a true
and fair view of the state of affairs
of the Obligor or the Obligor and its
Subsidiaries, as the case may be, as
at the date on which, and for the
period in respect of which, they are
prepared or an explanation of any
divergence between the Financial
Statements as presented and such a
true and fair view; and
(n) (INCORRECT REPRESENTATION OR WARRANTY)
immediately upon becoming aware notify the
Security Trustee if any representation or
warranty made by it or on its behalf in
connection with a Bank Finance Document is
found to be materially incorrect or
misleading; and
(o) (ENSURE NO EVENT OF DEFAULT) do everything
within its powers necessary to ensure that no
Event of Default occurs; and
(p) (NOTIFY DETAILS OF EVENT OF DEFAULT OR
POTENTIAL EVENT OF DEFAULT) if an Event of
Default or Potential Event of Default occurs,
upon becoming aware, notify the Security
Trustee giving full details of the event and
any step taken or proposed to remedy it; and
(q) (LITIGATION) promptly notify the Security
Trustee in writing and in reasonable detail,
and keep the Security Trustee informed, of
any litigation or administrative or
arbitration or other proceedings before or of
any Governmental Agency, court, commission or
arbitrator taking place, commenced, pending
or, to the best of its knowledge, threatened
against it or any of its assets:
(i) in the case of the Purchasers, under
section 36 of the Office of the
Regulator-General Act 1994; or
(ii) in the case of the Purchasers, under
the Gas Industry Act 1994 or the Gas
Pipelines Access Law in relation to a
"civil penalty provision", "conduct
provision" or "regulatory provision"
(as defined in that Act or Law); or
(iii) which, could reasonably be expected to
result in it incurring a liability in
excess of $10,000,000 or which is or
is likely to be a Material Adverse
Effect; and
(r) (CONSTITUTION) promptly notify the Security
Trustee of any proposal to change to its
constitution; and
(s) (ENVIRONMENTAL MATTERS) in the case of the
Purchasers, promptly notify the Security
Trustee of any breach or potential breach of
any Environmental 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
is a Material Adverse Effect; and
(t) (REGULATORY) in the case of the Purchasers,
provide notice to the Security Trustee as
soon as it becomes aware of any of the
following:
(i) any material breach of the Gas
Industry Act 1994, the Electricity
Industry Act 1993, the Gas Pipelines
Access Law, the Pipelines Act 1967 or
the Gas Safety Act 1997;
(ii) any breach of a material term of any
Licence;
(iii) any actual or proposed amendment,
variation or cancellation of any of
the Licences;
(iv) any material breach of a Material
Regulatory Instrument or a Material
Contract;
(v) any actual or proposed material
amendment or variation of any of the
Material Regulatory Instruments or any
Material Contract;
(vi) any actual or proposed issue to a
third party of a distribution licence
in respect of the Distribution Area;
(vii) in relation to a class of customers,
any actual or proposed issue to a
third party of a retail licence in
respect of a class of customers in the
Franchise Area prior to those
customers being considered
contestable;
(viii) any order or provisional order under
section 35 of the Office of
Regulator-General Act 1994 made,
served or threatened to be made or
served on a Purchaser or its business
by the ORG;
(ix) any actual or proposed inquiry under
Part 4 of the Office of the
Regulator-General Act 1994 concerning
a Purchaser which is likely to be a
Material Adverse Effect;
(x) any actual or proposed price
determination under Part 3 of the
Office of the Regulator-General Act
1994 concerning the Purchaser's prices
or charges for distribution services,
retail services or other services and
cost pass throughs which determination
(if made) is likely to be a Material
Adverse Effect;
(xi) the ORG is considering or threatening
to appoint an administrator to all or
any part of the business of a
Purchaser under the Gas Industry Act
1994 or the Electricity Industry Act
1993;
(xii) the possible or threatened suspension
of a Purchaser under the MSO Rules or
the National Electricity Code; and
(u) (NOTICES) in the case of the Purchasers,
promptly provide to the Security Trustee a
copy of any notice given to it under
clause 3.4 of a Licence; and
(v) (PERMITTED DISPOSALS) in the case of the
Purchasers, promptly notify the Security
Trustee of any Permitted Disposals (excluding
any Permitted Distributions) of any single
asset having a value which exceeds $1,000,000
or assets in any Financial Year having an
aggregate value which exceeds $5,000,000 and
provide the Security Trustee with such
information about such Permitted Disposals as
the Security Trustee reasonably requests; and
(w) (CORE BUSINESS) in the case of the
Purchasers, engage only in, and continue to
engage only in, the Core Business; and
(x) (LICENCES) in the case of the Purchasers,
they will:
(i) comply in all material respects with
the legislation referred to in clause
6.1(t)(i) and the Material Regulatory
Instruments where failure to comply is
or is likely to be a Material Adverse
Effect;
(ii) comply with the terms and conditions
of the Licences except in respect of
an event or circumstance in respect of
which:
(A) the ORG has issued a "no
action" letter, which is still
in effect, to a Purchaser
indicating that the ORG will
not be taking any action in
respect of that event or
circumstance; or
(B) there has been insufficient
time to obtain a "no action"
letter from the ORG and the
Purchaser has demonstrated
to the Security Trustee that
it has been diligently
pursuing the issue by the ORG
of a "no action" letter and
the remedy of any actual or
potential contravention of a
Licence condition arising from
the event or circumstance and
that a "no action" letter is
likely to be issued by the
ORG; and
(iii) take all necessary steps to remedy any
breach of any Material Regulatory
Instrument, Material Contract or
Licence to which it is a party or any
breach of the legislation referred to
in clause 6.1(t)(i) without delay; and
(y) (GAS INFRASTRUCTURE) in the case of TUA
(No. 10) Pty Ltd, protect, keep, maintain and
preserve the Gas Infrastructure in good
working order and condition and renew or
replace when worn out, obsolete or destroyed
all present or future components of the Gas
Infrastructure which are necessary for the
conduct of the Core Business; and
(z) (GOOD STANDING) maintain its good standing,
ensure that it remains entitled to carry on
business and own property in each
jurisdiction in which such entitlement is
necessary; and
(aa) (LAWS) comply at all times with the
requirements of all applicable laws and the
lawful orders or decrees of any Governmental
Agency where failure to comply is likely to
be a Material Adverse Effect; and
(bb) (AUTHORISATIONS) in the case of the
Purchasers, promptly obtain, maintain and
renew on time each Authorisation to be
obtained by it which is necessary for
carrying on its Core Business; and
(cc) (TAXES) pay when due all Taxes payable by
it, other than Contested Taxes; and
(dd) (BUSINESS) in the case of the Purchasers,
ensure that its business is conducted in a
proper and efficient manner in accordance
with prudent business practices and in
accordance with legislation referred to in
clause 6.1(t)(i), the Licences, the Material
Regulatory Instruments, the Material
Contracts and Good Gas Industry Practice; and
(ee) (COPIES) in the case of the Purchasers,
promptly deliver to the Security Trustee a
copy of each report, statement or notice
given to its shareholders in their capacity
as such where such report, statement or
notice is required by law or regulation to be
given to such shareholders; and
(ff) (INTELLECTUAL PROPERTY) in the case of the
Purchasers, maintain, preserve and protect
all copyrights, patents, trade marks (whether
registered or common law marks), trade names,
trade secrets, confidential information,
know-how and other intellectual property
material to its business in accordance with
prudent business so that the business carried
on in connection with them may be properly
and advantageously conducted at all times;
and
(gg) (INSURANCE) in the case of the Purchasers:
(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 Security Trustee (which approval
may not be unreasonably withheld) in
respect of:
(A) its property and assets to the
extent of its full insurable
value on a replacement and
reinstatement basis and
revenue in respect of revenue
less variable expenses;
(B) such insurance to be against
fire, explosion and other
risks which are usual to a
prudent owner of property of a
similar type to that being
insured would insure and any
other risks reasonably
specified by the Security
Trustee with a policy sum
insured not less than equal to
the aggregate of the value of
assets and insurable revenue;
and
(ii) general and products liability
including failure to supply and in a
form usual to the risks insured by a
prudent operator and in a manner
reasonably specified by the Security
Trustee for an indemnity limit of not
less than A$500,000,000 for any one
occurrence; and
(iii) professional indemnity in the form
usual to the risks insured by prudent
operators and in a manner reasonably
specified by the Security Trustee for
an indemnity limit of not less than
A$50,000,000; and
(iv) directors and officers liability in
the form usual to the risks insured by
prudent operators in a manner
reasonably specified by the Security
Trustee for an indemnity limit of not
less than A$100,000,000; and
(v) the insurance policies can be arranged
in such a way to incorporate
reasonable deductibles or self
insurance retentions and as may be
agreed between the Purchasers and the
Security Trustee certain assets such
as pipelines may be self insured for
material damage but not for business
interruption; and
(vi) maintain with insurers approved by the
Security Trustee (which approval may
not be unreasonably withheld), workers
compensation, public liability and
other insurances which a prudent
person engaged in a similar business
or undertaking to that of the Obligor
would effect or which are reasonably
specified by the Agent; and
(vii) the insurances referred to in
paragraphs (A) and (B) above are to be
arranged to include the interests of
the Security Trustee and have
specified the terms of claims
management and payment procedures
agreed by the Security Trustee with
the Purchasers; and
(viii) if requested by the Security Trustee,
deposit with the Security Trustee all
insurance policies and certificates of
insurance in connection with or
comprising any of the properties or
assets or liabilities of the
Purchasers; and
(ix) pay each insurance premium in a manner
prescribed by the insurers to ensure
the continuity of cover and, on
request from the Security Trustee,
produce receipts for the payment; and
(x) not do or permit anything to be done
or fail to do anything which
prejudices any insurance; and
(xi) immediately rectify anything which
might prejudice any insurance and
immediately reinstate the insurance if
it lapses; and
(xii) not, without the consent of the
Security Trustee, materially vary,
cancel or allow to lapse insurance in
connection with any of its property,
assets and liability; and
(xiii) notify the Security Trustee
immediately when an event occurs which
gives rise or might give rise to a
claim exceeding $5,000,000 under or
which could materially prejudice a
policy of insurance required by this
clause or if any policy of insurance
required by this clause is cancelled;
and
(xiv) the Purchasers undertake to take
whatever steps are reasonably
permissible to ensure that all
insurances maintained by Westar,
Westar Assets and Kinetik are managed
promptly from the date of execution
of the Sale Agreement so that any
such insurances still required by the
Purchasers are maintained in force and
amended suitably and as required by
the provisions of this deed and to
ensure that losses and claims which
may be recoverable under the
relevant insurance policies are not
prejudiced; and
(hh) (CREDIT RATING) in the case of the Core
Borrowers, seek to obtain a credit rating in
relation to the Senior Debt from either
Standard & Poor's (Australia) Pty Ltd or
Moody's Investor Services, Inc within one
year from the date of Financial Close and
advise the Security Trustee regularly on the
rating process and upon receipt of such
rating; and
(ii) (YEAR 2000) in the case of the Purchasers,
provide to the Security Trustee by no later
than 31 March 1999:
(i) responses to year 2000 worksheets or
questionnaires relating to the
Purchasers and the Core Assets
provided those worksheets and
questionnaires are submitted to the
Purchasers by no later than 1 March
1999; and
(ii) a compliance program that is designed
to identify and assess relevant Core
Assets (including any electronic
equipment, computer hardware,
applications, software or embedded
systems) for actual or potential
exposure to date issues at century
changeover and including the leap year
in 2000. The program shall include
procedures to:
(A) develop strategies to address
year 2000 issues and to
mitigate risks;
(B) develop a comprehensive year
2000 methodology;
(C) develop a year 2000 test
strategy within the overall
methodology to include testing
of key dates and date ranges,
and the Purchasers shall ensure that the compliance program is fully
implemented and completed so that they will be Year 2000 Compliant by no
later than 30 September 1999; and
(jj) (SYNDICATION) each Obligor must:
(i) instruct its management, employees
and advisers:
(A) to comply with all reasonable
requests for information from
potential syndicate members;
(B) to provide all reasonable
assistance to the Financiers
in connection with
syndication; and
(ii) cooperate with the consultants
appointed by the Agent to update any
reports provided prior to the date of
this deed and otherwise assist in the
preparation of information to be used
in the syndication of the Syndicated
Facilities Agreement.
(iii) use its best endeavours to procure the
agreement of the State of Victoria to
the release of information contained
in information memoranda prepared by
it to potential Financiers (subject to
such potential Financiers entering
into the necessary confidentiality
undertaking); and
(kk) (GROUP RELATIONS) except as permitted under
clause 4, in relation to any Indebtedness
from one Obligor to another Obligor, no
Obligor will take any action, make any demand
for payment 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 Security
Trustee; and
(ll) (MATERIAL CONTRACTS) ensure that each
Material Contract to which it is a party
remains in full force and effect and use
reasonable endeavours so that any Outsourcing
Agreement which expires is renewed or
replaced upon terms which are equivalent or
better to the Purchasers' interests; and
(mm) (OUTSOURCING AGREEMENTS) ensure that the
Outsourcing Agreements are entered into by
the Purchasers by no later than three months
after Financial Close (or, if the Purchasers
demonstrate to the reasonable satisfaction
of the Security Trustee at the end of that
three month period that they are using their
best endeavours to agree and execute the
Outsourcing Agreements, by no later than six
months after Financial Close) and that the
Outsourcing Agreements cannot be terminated,
revoked, cancelled or suspended by any party
to the Outsourcing Agreement unless:
(i) the prior written consent of the
Security Trustee (which consent shall
not be unreasonably withheld) is
first obtained; or
(ii) that Outsourcing Agreement is to be
immediately replaced with an agreement
(whether or not with a Related
Entity), the terms of which are not
substantially or materially more
adverse to the Purchasers; and
(nn) (QUALITY SYSTEM): in the case of each
Purchaser, use reasonable endeavours to
obtain accreditation under
AS/NZ-ISO-9002-1994 for its quality systems
within one year of the date of Financial
Close; and
(oo) (RESERVE ACCOUNT): in the case of the
Purchasers, on or before the date of
Financial Close establish the Reserve Account
and ensure that the amount standing to the
credit of the Reserve Account as from the
date of Financial Close is not less than the
amount set out in the Base Case Model (unless
replaced by an unconditional and irrevocable
standby letter of credit satisfactory to the
Security Trustee) and that such amount is not
funded by Senior Debt; and
(pp) (CAPITAL EXPENDITURE): in the case of the
Purchasers:
(i) deliver to the Security Trustee within
six months of Financial Close a
detailed plan reviewing the projected
Capital Expenditure requirements of
the Purchasers for the following five
years (the "PLAN"), which Plan must be
agreed with the Security Trustee after
consideration by an independent
consultant appointed by the Security
Trustee; and
(ii) undertake a capital expenditure
programme in accordance with the Plan.
BORROWER'S UNDERTAKINGS - HEDGE
6.2 The Core Borrowers undertake as follows:
(a) (PERFORM HEDGES): it will perform and
observe all of the obligations on its part
contained in the Hedge Agreements with the
Hedge Counterparties to ensure that:
(i) 80% of the Total Facility Limit as at
the date of Financial Close is hedged
for the period from Financial Close
for a period of 3 years;
(ii) 50% of the Total Facility Limit as at
the date of Financial Close is hedged
for the period from 3 years after
Financial Close for a period of 4
years; and,
(b) (MAXIMUM HEDGING): the Core Borrowers may
enter into hedging arrangements with the
Hedge Counterparties to hedge any part of
the Total Facility Limit not otherwise
hedged in accordance with this clause 6.2
but must not, at any time prior to the
Maturity Date for the Tranche B Facility
and Tranche C Facility (as those terms are
defined in the Syndicated Facilities
Agreement), enter into interest rate hedging
arrangements to hedge in excess of 100% of
the Total Facility Limit; and
(c) (INFORMATION TO AGENT): immediately on
entering a Hedge Agreement and at such other
times as the Agent may reasonably request,
deliver to the Agent such information as it
may reasonably request to demonstrate
compliance with this clause 6.2.
NEGATIVE UNDERTAKINGS
6.3 Each Obligor undertakes that it will not:
(a) (ENCUMBRANCES): create or allow to exist or
subsist any Security Interest on the whole or
any part of its present or future property,
except for Permitted Security Interests; and
(b) (DEBT RESTRICTION): without the prior written
consent of the Security Trustee (acting on
the instructions of the Majority of Senior
Creditors):
(i) incur any Indebtedness other than
Permitted Indebtedness; or
(ii) amend or consent to any amendment to
the terms of any Qualifying
Subordinated Debt; or
(iii) incur any Subordinated Indebtedness
other than Qualifying Subordinated
Debt; and
(c) (DISPOSALS OF ASSETS): sell, transfer, lease
or otherwise dispose of any asset (whether in
a single transaction or in a series of
transactions and whether voluntarily or
involuntarily or whether by disposal of an
asset which is subsequently leased-back):
(i) which is an interest in a Licence,
Material Regulatory Instrument or
Material Contract to which it is a
party or any shares in any other
Obligor; or
(ii) except in the case of TUA, any other
asset unless it is a Permitted
Disposal or Permitted Distribution,
provided that the Senior Creditors shall reasonably consider (but
without any obligation to approve) any leasing proposal if the Security
Trustee has received:
(iii) a copy of the documents relevant to
the transaction;
(iv) a satisfactory opinion from an
Australian law firm or accounting firm
as to the tax implications of the
transaction;
(v) in circumstances where the Security
Trustee's legal counsel are of the
view that there are Australian
taxation issues and recommended that a
ruling be obtained from the Australian
Taxation Office, a favourable ruling
from the Australian Taxation Office;
and
(vi) evidence that there will be no adverse
impact on the cashflow of the Obligors
or the rights of the Senior Creditors
under the Transaction Documents; and
(d) (SECURITISATION): assign, sub-participate an
interest in, otherwise dispose of, or create
or allow to exist any Security Interest over,
receivables arising from network charges, or
any other receivables or other monetary
assets other than under a Permitted Disposal
and a Permitted Security Interest; and
(e) (ENVIRONMENTAL LAW): in the case of
Purchasers, by any act or omission or series
of acts or omissions breach any Environmental
Law if the breach has or is likely to be 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 the Hedge
Agreements or an interest rate swap agreement
relating to Permitted Indebtedness incurred
by the Core Borrowers, Holdco or TUA, unless
that transaction would be a transaction
which would ordinarily be carried out by a
prudent, responsible company carrying on a
major utilities business and be in
accordance with Good Gas Industry Practice;
and
(g) (LICENCES): in the case of the Purchasers,
vary or allow to be varied a Licence without
the prior written consent of the Security
Trustee; and
(h) (VARIATION OF AGREEMENTS): without the prior
written consent of the Security Trustee
(acting on the instructions of the Majority
of Senior Creditors):
(i) vary or allow to be varied in any
material respect any Material Contract
to which it is party; or
(ii) cancel, revoke, surrender or repudiate
any Material Contract to which it is a
party (other than any Outsourcing
Agreement); or
(iii) terminate, permit the termination of
or do anything or refrain from doing
anything which would entitle any other
person to terminate any Material
Contract to which it is a party (other
than any Outsourcing Agreement) unless
it is replaced immediately in
substantially the same terms; and
(i) (PARTNERSHIPS AND JOINT VENTURES): except in
the case of TUA, enter into any partnerships
or joint venture agreements or agreements of
similar effect without the prior written
consent of the Security Trustee unless, in
the case of a Purchaser, entered into in the
ordinary course of the Core Business; and
(j) (SUBSIDIARIES): except in relation to any
Subsidiary of TUA, create or acquire any
Subsidiary without the prior written consent
of the Security Trustee, which consent will
not be withheld if:
(i) in the case of a Subsidiary of BS1,
the Subsidiary executes and delivers
an accession deed agreeing to be bound
as an Obligor under this deed; and
(ii) the Security Trustee is provided with
any other documents, instruments and
assurances as the Security Trustee
reasonably requires in order to ensure
that the Subsidiary is bound as an
Obligor under this deed and that
accession deed is enforceable against
that Subsidiary; and
(iii) the Subsidiary carries on the Core
Business; and
(k) (LOANS) except in the case of TUA, be the
creditor in respect of any Indebtedness
except for:
(i) deposits made with a Financier in the
ordinary course of business;
(ii) in the case of a Purchaser,
Indebtedness extended to customers on
arm's-length terms in the ordinary
course of business;
(iii) loans which are permitted to be made
in accordance with clause 6.5;
(iv) Permitted Indebtedness or as
contemplated under any of the
Transaction Documents; or
(v) as approved in writing by the
Security 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) (CLEAR MARKET): without limiting
clause 6.3(b) (Debt restriction), raise and
procure that its Related Entities do not
raise any Indebtedness (other than Permitted
Indebtedness) during the period of six months
from Financial Close or if earlier upon
completion of primary syndication of the
Facilities, in the bank syndication market in
Australia, New Zealand, Singapore and Hong
Kong; and
(n) (PARTNERSHIP): in the case of each Core
Borrower, resign from, terminate or dissolve
the Partnership or attempt to do so without
the prior written consent of the Security
Trustee; and
(o) (RESERVE ACCOUNT): unless it can be
demonstrated to the reasonable satisfaction
of the Security Trustee that the full amount
standing in the Reserve Account is not needed
for Restructuring Costs (in which case any
excess may be withdrawn by the Purchaser for
any purpose it considers appropriate), pay or
apply any amount in the Reserve Account
except upon Restructuring Costs; and
(p) (BENEFIT OF TAX LOSSES): permit the taxation
benefit of any operating losses incurred in,
or carried forward by, BS1 or any of its
Subsidiaries to be used by any other Obligor,
Related Entity or any other person.
FINANCIAL UNDERTAKINGS
6.4 Each Core Borrower undertakes to ensure that:
(a) the ratio of Consolidated Senior Debt (but
excluding the Hedge Exposures of the Hedge
Counterparties) to Consolidated Net Worth is
no greater than 70:30 at all times; and
(b) the Consolidated Interest Cover Ratio as at
each Calculation Date:
(i) will be not less than 1.10:1 during
the period from Financial Close to and
including 31 December 1999;
(ii) will be not less than 1.20:1 from
1 January 2000.
DISTRIBUTIONS
6.5 Each member of the Operating Group undertakes not to
declare, pay, make or distribute any Distribution
(other than a Permitted Distribution) unless each of
the following conditions has been satisfied:
(a) no Event of Default or Potential Event of
Default subsists; and
(b) for the period from Financial Close to and
including 31 December 1999, the Consolidated
Interest Cover Ratio as at 31 December 1999
is 1.30:1 or higher; and
(c) for the period from 1 January 2000 to and
including 31 December 2000, the Consolidated
Interest Cover Ratio as at 30 June 2000 and
at 31 December 2000 is 1.40:1 or higher; and
(d) for the period from 1 January 2001, the
Consolidated Interest Cover Ratio as at the
most recent Calculation Date occurring on 30
June or 31 December in each year is 1.50:1 or
higher; and
(e) the Distribution is only made from:
(i) the Net Cash Flow for the Half Year
ending on, or immediately prior to,
the date on which the Obligor proposes
to declare, pay, make or distribute
the Distribution; or
(ii) the Net Cash Flow for any previous
Half Year which was not previously
paid as a Distribution; and
(f) subject to paragraph (e), the Distribution in
respect of a Half Year takes place prior to
the end of the subsequent Half Year; and
(g) the balance of the Reserve Account is not
less than the amount projected in the
Purchaser's annual business plan to be
applied in Restructuring Costs and which has
not been so applied; and
(h) the first Distribution cannot take place
until the ratio in paragraph (b) is satisfied
as at 31 December 1999.
7 SECURITY ACCOUNT
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ESTABLISHMENT
7.1 Prior to Financial Close, the Security Trustee shall
open a Security Account in the name of and for the
benefit of the Senior Creditors in accordance with
this deed.
7.2 The Security Trustee shall hold moneys received to
the credit of the Security Account on the terms of
this deed and shall disburse such moneys to the
Senior Creditors in accordance with the Syndicated
Facilities Agreement and this deed.
DIRECTIONS
7.3 BS2 irrevocably, absolutely and unconditionally
directs TUA (No. 11) Pty Ltd and TUA (No. 10) Pty
Ltd to pay all moneys payable under each BS2 -
Westar/Kinetik Loan Agreement to or as directed by
BS1 in this deed.
7.4 BS1 irrevocably, absolutely and unconditionally
directs:
(a) BS2 to pay all moneys payable on any date
under each BS1-BS2 Loan Agreement; and
(b) TUA (No. 11) Pty Ltd and TUA (No. 10) Pty Ltd
to pay all moneys payable on any date under
each BS2 - Westar/Kinetik Loan Agreement,
(each being a "PAYMENT DATE") to the extent of moneys due for payment on
the Payment Date to the Senior Creditors under or in connection with the
Bank Finance Documents, to the Security Trustee for the credit of the
Security Account. For the purposes of ascertaining such amount clause 11
as it applies to the obligations of the Core Borrowers under the Bank
Finance Documents does not apply.
ACKNOWLEDGMENT OF SATISFACTION OF OBLIGATIONS
7.5 Each Obligor, Junior Creditor and Senior Creditor
acknowledges and agrees that payment by BS1, BS2 or
a Purchaser to the Security Trustee for the credit
of the Security Account in accordance with the
directions in clauses 7.3 and 7.4 (and distribution
of the moneys credited to that account in accordance
with this deed) satisfies (to the extent that such
moneys are actually received by the Security Trustee
and the Senior Creditors, free from claims of third
parties in relation thereto at a time when the person
paying the amount is not insolvent (as defined in
section 95A of the Corporations Law or other
applicable law)) in the following order:
(a) the obligations of TUA (No. 10) Pty Ltd and
TUA (No. 11) Pty Ltd to pay BS2 the
corresponding amount under the BS2 -
Westar/Kinetik Loan Agreement;
(b) the obligations of BS2 to pay BS1 the
corresponding amount under the BS1-BS2
Loan Agreement;
(c) the obligations of BS1 to pay TUA the
corresponding amount under the TUA-BS1
Loan Agreement;
(d) the obligations or rights of TUA to pay
Holdco the corresponding amount under the
Holdco - TUA Loan Agreement;
(e) the obligations of Holdco to provide
financial accommodation of the corresponding
amount to the Core Borrowers under the ALP
Loan Agreement;
(f) the obligations of the Core Borrowers to pay
the Senior Creditors the corresponding amount
under or in connection with the Syndicated
Facilities Agreement; and
(g) the obligations of each Guarantor to pay the
Security Trustee the corresponding amount
under or in connection with the Guarantee.
7.6 The parties acknowledge and agree that the
directions in clauses 7.3 and 7.4 take effect, and
the obligations described in clause 7.5 are
satisfied notwithstanding:
(a) any limitation on the liability of any
Obligor in connection with any of the
Intercompany Loan Agreements or Finance
Documents including, without limitation,
under clause 11 of this deed;
(b) the inability of any Obligor to borrow under,
or require or demand a payment or repayment
under, any Intercompany Loan Agreement;
(c) the invalidity, discharge or unenforceability
of any of the Intercompany Loan Agreements;
(d) any Insolvency Event affecting any Obligor
or any other person; or
(e) to the maximum extent permitted by applicable
law, any other matter which, at law, in
equity or otherwise might otherwise affect
the validity or enforceability of the
directions.
7.7 The parties further acknowledge and agree that if,
notwithstanding clause 7.6, any matter referred to
therein would affect the validity or enforceability
of the directions in this clause 7, then each
Guarantor shall be taken, without the need for any
further act on its part to have elected to make a
payment under its Guarantee in respect of the moneys
due for payment on that date under or in connection
with the Bank Finance Documents(disregarding the
application of clause 11 to the obligations of the
Core Borrowers under the Bank Finance Documents) and
to have given irrevocable, absolute and
unconditional directions to TUA, BS2 and the
Purchasers to make payment to the Security Trustee
on such account.
7.8 Nothing in this clause 7 constitutes a Security
Interest.
7.9 Nothing in this clause 7 or the inability of any
Obligor to borrow under, or require or demand a
payment or repayment under, any Intercompany Loan
Agreement affects the liabilities of the Guarantors
or the rights of the Security Trustee and the Senior
Creditors under the Guarantee and the other Bank
Finance Documents to which a Guarantor is a party.
8 DEFAULT
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EVENTS OF DEFAULT
8.1 Each of the following is an Event of Default
whether or not it is within the Obligor's power to
prevent it):
(a) (PAYMENT): an Obligor does not pay, in the
manner provided in a Bank Finance Document,
any money payable (excluding Interest) when
due or, in the case of Interest, any Interest
due under a Bank Finance Document within
two Business Days of notice of the
non-payment being given by the Security
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 Security
Trustee to the Obligor); or
(b) (BREACH OF FINANCIAL UNDERTAKINGS): a Core
Borrower fails at any time to comply with an
undertaking in clause 6.4(a) (Financial
undertakings) or, in respect of the
undertaking in clause 6.4(b) (Financial
undertakings) :
(i) the Core Borrowers fail to deliver to
the Security Trustee a certificate of
compliance on the due date as required
by clause 6.1(l) (Compliance
certificate); or
(ii) it is apparent from a certificate of
compliance or from the Financial
Statements delivered to the Security
Trustee in accordance with clause 6.1
(General undertakings) that the Core
Borrowers are in breach of the
undertaking in clause 6.4(b)
(Financial undertakings); or
(iii) a Core Borrower gives notice to the
Security Trustee of a breach of its
undertaking in clause 6.4(b)
(Financial undertakings); or
(iv) the Security Trustee gives notice in
writing to the Core Borrowers that
they are in breach of the undertaking
in clause 6.4(b) (Financial
undertakings) and the Core Borrowers
are in fact in breach of that
undertaking; or
(c) (REGULATORY EVENTS): a Purchaser fails to
comply with its undertakings in clause 6.1(x)
(Licences) or 6.3(h) (Variation of
Agreements) or fails to give notice in
accordance with clause 6.1(t) (Regulatory) in
respect of a matter referred to in clause
6.1(t) which matter is likely to lead to or
be a Material Adverse Effect or is likely to
lead to the revocation or cancellation of a
Licence or the termination of a Material
Contract to which it is a party; or
(d) (OTHER DEFAULTS): an Obligor commits any
breach of, or defaults in the due performance
or observance of, any of its obligations or
undertakings under the Bank Finance Documents
(other than a breach or default described
in paragraph (a), (b) or (c) above) and the
breach or default, if capable of remedy,
continues unremedied for 30 days after the
Obligor receives a notice from the Security
Trustee of the breach or default or, where a
specific period of grace is allowed in the
Bank Finance Documents for that breach or
default, the breach or default remains
unremedied at the end of that grace period;
or
(e) (CROSS DEFAULT): any Indebtedness of an
Obligor (other than the Junior Finance Debt
or Eastern Debt) exceeding in aggregate
$10,000,000 (or its equivalent in another
currency):
(i) is not satisfied on time or at the
end of any applicable period of
grace; or
(ii) becomes prematurely payable and is
not discharged when due; or
(iii) is not discharged at maturity or when
duly called; or
(f) (EXECUTION AGAINST PROPERTY): execution of a
court order or other legal right is levied
and not stayed, withdrawn or satisfied within
10 Business Days of being made or a judgment
is enforced or an order or Security Interest
is enforced, or becomes enforceable, against
any property of an Obligor for an amount
exceeding $5,000,000; or
(g) (MISREPRESENTATION): any representation,
warranty or statement made or deemed to be
made in a Bank Finance Document or otherwise
made or deemed to be made by or on behalf of
an Obligor in favour of a Senior Creditor,
proves to have been or is found to have been
untrue, incorrect or misleading in any
material respect when made or deemed made; or
(h) (INSOLVENCY EVENT): an Insolvency Event
occurs in respect of an Obligor; or
(i) (CESSATION OF BUSINESS): an Obligor stops
payment generally, ceases to carry on its
business or a material part of it, or
threatens to do either of those things,
except to reconstruct or amalgamate while
solvent on terms approved by the Security
Trustee; or
(j) (REDUCTION OF CAPITAL): an Obligor takes
action to reduce its capital or passes a
resolution referred to in section 254N of the
Corporations Law, in either case without the
prior written consent of the Security
Trustee; or
(k) (SHARE BUY-BACK): an Obligor without the
prior written consent of the Security
Trustee:
(i) effects, or enters or attempts to
enter into an agreement to effect, a
buy-back of any of its shares other
than an employee share scheme buy-back
or an odd lot buy-back;
(ii) passes a resolution under section 257C
or section 257D of the Corporations
Law, other than a resolution pursuant
to an employee share scheme buy-back,
or convenes a meeting to consider such
a resolution; or
(iii) applies to a court to convene any
such meeting or to approve any such
resolution or buy-back,
and for the purposes of this paragraph words and expressions which are
used in this paragraph and which are defined in the Corporations Law
have the meanings given to them in the Corporations Law; or
(l) (INVALIDITY):
(i) any party to a Finance Document (other
than a Senior Creditor) or a person on
that party's behalf claims that a
Finance Document or a material clause
in a Finance Document is wholly or
partly void, voidable or
unenforceable; or
(ii) a Finance Document or a material
clause in a Finance Document is or
becomes wholly or partly void,
voidable or unenforceable, and, if
that state of affairs is remediable,
and the Obligor and each other party
(other than the Security Trustee) to
that Finance Document fails promptly
to take all steps reasonably requested
by the Security Trustee to remedy, in
co-operation with the Security
Trustee and the other Creditors, the
relevant defect; or
(m) (CHANGE IN CIRCUMSTANCES): a change occurs
in a circumstance which is warranted under a
Bank Finance Document to exist or in the
business, assets or financial condition of
an Obligor or any other event or series of
events, whether related nor not, occurs
which is, or is likely to be, a Material
Adverse Effect and, if capable of remedy, is
not remedied within 30 days after the
earlier of the Obligor becoming aware of
such event and that it is a Potential Event
of Default or the Obligor receiving a notice
of such event from the Security Trustee; or
(n) (CHANGE OF SHAREHOLDING): if at any time
the representation and warranty in
clause 5.1(u) is untrue, incorrect or
misleading; or
(o) (CHANGE OF CONTROL): Texas ceases for any
reason to ultimately control the composition
of the board of directors and to have
management and operational control of each
Obligor; or
(p) (CHANGE OF CONSTITUTION): without the prior
written consent of the Security Trustee, an
Obligor materially changes, or passes a
resolution to materially change, its
constitution; or
(q) (INVESTIGATION): a person is appointed under
the Corporations Law or other companies and
securities legislation to investigate any
part of the affairs of an Obligor unless the
Obligor has demonstrated to the reasonable
satisfaction of the Security Trustee within
10 Business Days of the appointment that no
Material Adverse Effect will, or is likely
to, result from the investigation or as a
consequence thereof; or
(r) (SEIZURE): all or any material part of the
assets of a Purchaser are seized or otherwise
appropriated by, or custody thereof is
assumed by any Governmental Agency or a
Purchaser 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 Purchaser has
demonstrated to the reasonable satisfaction
of the Security Trustee within 10 Business
Days of such seizure, appropriation,
assumption of custody or execution
("EXERCISE OF RIGHTS") that no Material
Adverse Effect will, or is likely to, result
from such Exercise of Rights or as a
consequence thereof; or
(s) (ENVIRONMENTAL EVENT): any Governmental
Agency takes any action, or there is any
claim or requirement of substantial
expenditure or alteration of activity,
under any Environmental Law, or there is any
breach or threatened breach of any
Authorisation, which is likely to be 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 Purchaser fails to take steps
(to the satisfaction of the Security
Trustee) to remedy the matter within 30 days
of becoming aware of such Governmental
Agency action, claim, breach or threatened
breach; or
(t) (LICENCES):
(i) a Purchaser fails to take any step
necessary or desirable to preserve a
Licence or to avoid a Licence being
placed in jeopardy;
(ii) a Licence is varied in a material
adverse respect without the prior
written consent of the Security
Trustee or is suspended, cancelled,
transferred, revoked or allowed to
lapse;
(iii) any person (other than the relevant
Purchaser) is issued a distribution
licence in respect of all or any part
of the Distribution Area and the issue
of the licence is likely to be a
Material Adverse Effect;
(iv) a Purchaser receives any notice under
clause 3.4 of a Licence;
(v) a Purchaser transfers, attempts to
transfer or agrees to transfer a
Licence or any interest in it;
(vi) an administrator is appointed to all
or any part of the business of a
Purchaser under the Gas Industry Act
1994 or the Electricity Industry Act
1993;
(vii) the receipt by a Purchaser of a
notice of intention to serve a
provisional or final enforcement
order or the receipt by a Purchaser
of a provisional or final enforcement
order under section 35 of the Office
of the Regulator-General Act 1994; or
(viii)a material clause in a Licence is or
becomes wholly or partly void,
voidable or unenforceable, or is
claimed to be so by a Purchaser or by
anyone on its behalf and, if capable
of remedy, that state of affairs is
not remedied within 10 Business Days
of the Purchaser becoming aware of it;
or
(u) (LEGISLATION): any legislation is passed or
amended (including, without limitation, any
amendment to the Gas Industry Act 1994, the
Electricity Industry Act 1993, the Office of
the Regulator-General Act 1994) or a Material
Regulatory Instrument is amended which is a
Material Adverse Effect; or
(v) (VOIDABLE PROVISIONS): a Material Contract or
any material provision of a Material Contract
is or becomes void, voidable or
unenforceable; or
(w) (BREACH): there occurs a breach or event of
default under any of the Material Contract ,
or a Purchaser fails to exercise or enforce
its rights under any of them, and the breach
or failure is or is likely to be a Material
Adverse Effect; or
(x) (ANY OTHER EVENT): any other event which an
Obligor and the Security Trustee may agree
shall be an Event of Default for the purposes
of this clause 8.1 occurs; or
(y) (CHANGE IN GROUP STRUCTURE): an Obligor
(other than the Core Borrower) ceases to be a
wholly owned Subsidiary of the Core Borrower;
or
(z) (HEDGE AGREEMENT): an event of default
(other than in relation to the Hedge
Counterparty) occurs under a Hedge
Agreement; or
(aa) (DISTRIBUTION): upon the receipt of the
Financial Statements required to be given to
the Security Trustee in accordance with this
deed it becomes evident that the amount
distributed by an Obligor in accordance with
clause 6.5 is greater than the amount which
would have been distributable if the
Consolidated Interest Cover Ratio had been
calculated upon the basis of those Financial
Statements and not upon the basis of the
management accounts and the amount of the
excess is not repaid within 10 Business Days
of demand; or
(bb) (SUSPENSION): an event of default or default
event occurs in relation to a Purchaser under
the MSO Rules or the National Electricity
Code which is likely to lead to the
suspension of the Purchaser under those Rules
or that Code.
CONSEQUENCES OF DEFAULT
8.2 If an Event of Default occurs, then the Security
Trustee may declare at any time by notice to the
Core Borrowers that:
(a) an amount equal to the total Amount Owing to
all Senior Creditors is either:
(i) payable to the Security Trustee on
demand; or
(ii) immediately due for payment to the
Security Trustee; and/or
(b) the Senior Creditors' obligations specified
in the notice are terminated.
The Security Trustee may make either or both of these declarations. The
making of either of them gives immediate effect to its provisions. The
Core Borrowers must pay any amount demanded by the Security Trustee in
accordance with the demand.
9 DISTRIBUTION OF RECOVERED MONEY
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9.1 If at any time the Security Trustee receives money
under a Bank Finance Document which is available for
distribution (this includes money which is received
by the Security Trustee before a notice is given
under clause 8.2 but which, for any reason
whatsoever, has not been distributed by the time a
notice is given under clause 8.2 on or after the
Fixed Date whether or not it represents the proceeds
of recovery action taken under any Bank Finance
Document, then the money must be distributed by the
Security Trustee in accordance with clause 9.4.
9.2 Unless the Majority of Senior Creditors decide
otherwise, money referred to in clause 9.1 does not
form part of the Recovered Money on a Recovered
Money Distribution Date if any Bank Finance Document
permits the money to be placed to the credit of a
suspense account in order to preserve rights to
prove in the bankruptcy or liquidation of any
person.
9.3 Any suspense account to which money is placed under
clause 9.2 is to be an interest bearing account
selected reasonably by the Security Trustee.
Interest earned on the account is to be treated as
Recovered Money.
9.4 Recovered Money is to be distributed by the Security
Trustee as soon as practicable after the Security
Trustee receives it as follows:
(a) first, to the extent that the Recovered Money
represents money recovered under a Security
which provides for the appointment of a
receiver, in the order provided for under the
Security up to and including the category of
satisfying the remuneration of the receiver
(as defined in that Security);
(b) secondly, towards satisfaction of all costs,
charges and expenses incurred by the Security
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 Bank Finance
Document;
(c) thirdly, towards satisfaction of any other
expenses or outgoings in connection with any
receivership under or the enforcement of any
Bank Finance Document;
(d) fourthly, towards payment to the Security
Trustee of any money due to it in its
capacity as Security Trustee under any Bank
Finance Document;
(e) fifthly, towards payment to each Senior
Creditor of an amount (not exceeding the
Amount Owing of that Senior Creditor) equal
to that Senior Creditor's Share at that time
of the Recovered Money;
(f) sixthly, to the extent that the Security
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,
or in such other manner as the Security Trustee determines.
10 REPLACEMENT OF SECURITY TRUSTEE
- -----------------------------------------------------------------------------
REMOVAL OF SECURITY TRUSTEE
10.1 If they are different persons, the Agent may remove
the Security Trustee from office, or if the Agent
and the Security Trustee are the same person, the
Majority of Senior Creditors may remove the Security
Trustee from office, in each case by notice given to
the Security Trustee, if:
(a) an Insolvency Event occurs or arises in
relation to the Security Trustee; or
(b) the Security Trustee is guilty of negligence
or wilful misconduct in the discharge of its
duties as trustee of the Security Trust.
Subject to clause 10.3, removal of the Security Trustee from office will
take effect:
(c) (if notice of removal is given pursuant to
paragraph (a)): when the notice is given; or
(d) (in any other case): 20 Business Days after
the notice of removal is given to the
Security Trustee.
RETIREMENT
10.2 The Security Trustee may retire as Security Trustee
by giving to Core Borrower and each other Senior
Creditor not less than 30 days' notice of its
intention to do so. No retirement takes effect
unless:
(a) there has been appointed as a successor
Security Trustee approved by the Core
Borrowers (which approval may not be
unreasonably withheld or delayed) either:
(i) a Financier nominated by a Majority
of Senior Creditors or, failing such
a nomination;
(ii) a reputable and experienced bank or
financial institution nominated by the
Security Trustee; and
(b) the successor Security Trustee has obtained
title to each Security in its capacity as
Security Trustee in a manner approved by each
Senior Creditor.
10.3 Subject to clause 10.4 when a successor Security
Trustee is appointed, the retiring or removed
Security Trustee is discharged (without prejudice
to any accrued right or obligation) from any further
obligation under the Bank Finance Documents. The
new Security Trustee and each other party to the Bank
Finance Documents has the same rights and obligations
among themselves as they would have had if the new
Security Trustee had been a party to the Bank Finance
Documents.
10.4 The retiring or removed Security Trustee agrees, at
its own expense, to execute and cause its successors
to execute documents and do everything else
necessary or appropriate to transfer the Trust Fund
into the name of the new Security Trustee and to
ensure that all public registers record the new
Security Trustee as the trustee of the Trust Fund.
11 LIMITED RECOURSE
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LIMITED RECOURSE
11.1 The Security Trustee may enforce its rights against
a Limited Recourse Obligor only arising from
non-observance of the Limited Recourse Obligations
only to the extent necessary to enforce its rights
under the relevant Security granted by that Limited
Recourse Obligor or, in the case of TUA, under the
TUA Mortgage.
11.2 If the Security Trustee does not recover all money
owing to it in connection with the non-observance of
the Limited Recourse Obligations by enforcing the
rights referred to in clause 11.1, it may not seek
to recover the shortfall by:
(a) bringing proceedings against the Limited
Recourse Obligor; or
(b) applying to have the Limited Recourse Obligor
wound up or proving in the winding up of the
relevant Limited Recourse Obligor.
11.3 Nothing in this clause 11:
(a) releases the Limited Recourse Obligor from
its obligations under the Transaction
Documents except to the extent that clause
11.1 is a limitation on recourse with respect
of the Limited Recourse Obligations; or
(b) affects the liability of the Limited Recourse
Obligor to the Security Trustee or the
remedies of the Security Trustee (including,
without limitation, the right to sue and
recover money payable under the Transaction
Documents and apply to have the Limited
Recourse Obligor wound up) arising because a
representation or warranty made by or on
behalf of the Limited Recourse Obligor in
connection with the Transaction Documents is
found to be incorrect or misleading or an
undertaking (other than the Limited Recourse
Obligations) in connection with the
Transaction Documents is breached; or
(c) prevents the Security Trustee from obtaining
equitable relief in connection with the
Transaction Documents other than an order
requiring the payment of money the subject of
the Limited Recourse Obligations in a manner
other than as contemplated by clauses 11.1 to
11.2 inclusive; or
(d) in any way limits the amount of the Amount
Owing, the Guaranteed Money or the Secured
Money; or
(e) in any way limits the recourse of the
Security Trustee and the Finance Parties
against any Obligor other than the Limited
Recourse Obligors.
CALCULATION OF GUARANTEED MONEY
11.4 For the purpose of ascertaining an Amount Owing,
Guaranteed Money or Secured Money for which the
Limited Recourse Obligor is liable under a
Transaction Document, the provisions of clauses 11.1
to 11.3 inclusive shall not apply, but nothing in
this clause 11 shall render the Limited Recourse
Obligor personally liable to pay the Guaranteed
Money or Secured Money except to the extent provided
in this clause 11.4.
LIMITATION ON LIABILITY
11.5 The Security Trustee acknowledges that the liability
of TU Australia Holdings No. 1 Ltd and TU Australia
Holdings 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 TU Australia
Holdings No. 1 Ltd and TU Australia Holdings No. 2
Ltd in excess of the limit referred to in this
clause 11.5 provided that this limitation does not
affect:
(a) the rights of the Creditors or the liability
of the Core Borrowers under the Partnership
Mortgage; or
(b) the amount of the Amount Owing, the
Guaranteed Money or the Secured Money or the
liability of the Guarantors under the Bank
Finance Documents.
12 COSTS, CHARGES, EXPENSES AND INDEMNITIES
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WHAT THE BORROWERS AGREE TO PAY
12.1 The Borrowers agree to pay or reimburse the Security
Trustee on demand for:
(a) the reasonable Costs of the Security Trustee
and each other Senior Creditor in connection
with:
(i) the negotiation, preparation,
execution and registration of and
payment of Taxes on any Bank Finance
Document (other than a Substitution
Agreement executed after the primary
syndication of the Facilities); 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 Bank
Finance Document; and
(b) the reasonable Costs of the Joint Lead Banks
in connection with the syndication of the
Facilities for a period of not more than six
months from Financial Close; and
(c) the Costs of the Security Trustee and each
other Senior Creditor in connection with the
enforcing of or preserving rights (or
considering enforcing or preserving them)
under any Bank Finance Document, or doing
anything in connection with any enquiry by an
authority involving the Obligor or any of its
Related Entities; and
(d) Taxes and fees (including registration fees)
and fines and penalties in respect of fees
paid, or that the Security Trustee reasonably
believes are payable, in connection with any
Bank Finance Document or a payment or receipt
or any other transaction contemplated by any
Bank 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 Security Trustee in sufficient
cleared funds for the Security Trustee to be
able to pay the Taxes or fees by the due
date.
The Security Trustee may debit any of these amounts
to a Borrower's account after asking the Borrower to
pay and the Borrower has failed to pay the amount
requested.
INDEMNITY
12.2 The Borrowers indemnify the Security 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
Bank Finance Document not being provided in
accordance with the request for any reason
except default of the Security Trustee or the
Financier; or
(b) financial accommodation under a Bank 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 Security Trustee or the any other Senior
Creditor acting in connection with a Bank
Finance Document in good faith on fax 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 Security Trustee or the Senior Creditor
exercising or attempting to exercise a right
or remedy in connection with a Bank Finance
Document after an Event of Default and for so
long as it subsists; or
(f) any indemnity the Security Trustee or any
other Senior Creditor properly gives a
Controller or an administrator of an Obligor
or to the Security Trustee in respect of an
indemnity properly given by the Security
Trustee to such Controller or administrator.
ITEMS INCLUDED IN LOSS, LIABILITY AND COSTS
12.3 The Borrowers agree 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) and (b), reasonable legal
Costs and in relation to clause 12.1(c) and
12.2, legal Costs in accordance with any
written agreement as to legal costs or, if
no agreement, on whichever is the higher of
a full indemnity basis or solicitor and own
client basis; and
(b) the Costs referred to in clause 12.1((a)) and
(c)(What the Borrowers agrees to pay)
include those paid, or that the Security
Trustee or relevant Senior Creditor
reasonably believes are payable, to persons
engaged by the Security Trustee or a Senior
Creditor in connection with the Bank Finance
Documents (such as consultants); and
(c) loss or liability and any Costs in any
indemnity under the Bank 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
Bank Finance Documents.
PAYMENT OF EMPLOYEES' LOSSES
12.4 The Borrowers agree to pay the Security Trustee an
amount equal to any liability or loss and any Costs
of the kind referred to in clause 12.2 (Indemnity)
suffered or incurred by any employee, officer,
Security Trustee or contractor of the Security
Trustee or the Senior Creditor unless caused by that
person's gross negligence.
CURRENCY CONVERSION ON JUDGMENT DEBT
12.5 If a judgment, order or proof of debt for an amount
in connection with a Bank Finance Document is
expressed in a currency other than that in which the
amount is due under the Bank Finance Document, then
the Borrowers indemnify the Security Trustee and
each Senior Creditor against:
(a) any difference arising from converting the
other currency if the rate of exchange used
by the Security Trustee or the Senior
Creditor in accordance with the Bank Finance
Documents for converting currency when it
receives a payment in the other currency is
less favourable to the Security 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.
13 NOTICES
- ----------------------------------------------------------------------------
FORM
13.1 Unless expressly stated otherwise in the Finance
Documents, all notices, certificates, consents,
approvals, waivers and other communications in
connection with a Finance Document:
(a) must be in writing, signed by an Authorised
Officer of the sender and marked for
attention as set out in schedule 2 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 2; or
(ii) sent by prepaid post (airmail, if
appropriate) to the address set out in
schedule 2; or
(iii) sent by fax to the fax number set out
in the schedule 2,
but if the intended recipient has notified a
changed postal address or fax number, then
the communication must be to that address or
number; and
(c) take effect from the time they are received
unless a later time is specified in them; and
(d) if sent by post, are taken to be received
three days after posting (or seven days after
posting if sent to or from a place outside
Australia); and
(e) if sent by fax, are taken to be received at
the time shown in the transmission report as
the time that the whole fax was sent.
WAIVER OF NOTICE PERIOD
13.2 The Security Trustee may waive a period of notice
required to be given by an Obligor under this deed.
14 CHANGE IN CREDITORS
- ----------------------------------------------------------------------------
CHANGE IN CREDITORS
14.1
(a) If any Creditor assigns any of its rights or
transfers by novation any of its rights and
obligation under any Transaction Document (in
accordance with the relevant provisions of
the relevant Transaction Document) it must
cause the new assignee or transferee to
become a new Creditor (a "NEW CREDITOR") by
executing a New Creditor Accession Deed.
(b) Each other party to this deed irrevocably
authorises the Security Trustee to execute
any New Creditor Accession Deed signed by a
New Creditor on its behalf.
(c) If a Financier substitutes a new financier
for all or part of its participation under
the Syndicated Facilities Agreement by
executing a substitution certificate under
the Syndicated Facilities Agreement, the
relevant substituted financier will be a new
Senior Creditor. Clause 14.2 will apply to
it.
(d) A Junior Financier who agrees to be bound by
this deed in consideration for being an
assignee or participant of the Junior Debt
will be a new Junior Creditor.
Clause 14.2 will apply to it.
EFFECT OF ACCESSION
14.2 When a new Financier or Junior Financier is
appointed:
(a) it becomes bound by this deed and receives
the benefits under this deed as if it were a
party to this deed;
(b) the assigning or transferring party continues
to the 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 further
obligations under this deed; and
(c) each other party continues to be bound by
this deed on the basis that the New Creditor
is a Creditor.
NOTICE OF CHANGE
14.3 The Security Trustee may treat each Creditor (or any
assignee or substitute or New Creditor of which the
Security 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
Transaction Documents for all purposes, unless and
until it receives notice to the contrary.
15 GENERAL
- ----------------------------------------------------------------------------
SET-OFF
15.1 At any time after an Event of Default and for so
long as it subsists, the Security Trustee or a
Senior Creditor may set off any amount due for
payment by the Security Trustee or the Senior
Creditor, respectively, to an Obligor against any
amount due for payment by that Obligor to the
Security Trustee or the Senior Creditor,
respectively, under the Bank Finance Documents.
CERTIFICATES
15.2 The Security Trustee, a Senior Creditor or the
Junior Financier may give a Borrower 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
15.3 If this deed specifies when an Obligor agrees to
perform an obligation, the Obligor agrees to perform
it by the time specified. The Obligor agrees to
perform all other obligations promptly.
DISCRETION IN EXERCISING RIGHTS
15.4 The Security Trustee, a Senior Creditor or the
Junior Financier may exercise a right or remedy or
give or refuse its consent in any way it considers
appropriate (including by imposing conditions),
unless a Transaction Document expressly states
otherwise.
CONSENTS
15.5 Each Obligor agrees to comply with all conditions in
any consent the Security Trustee, a Senior Creditor
or the Junior Financier gives in connection with a
Transaction Document.
PARTIAL EXERCISING OF RIGHTS
15.6 If the Security Trustee, a Senior Creditor or the
Junior Financier does not exercise a right or remedy
fully or at a given time, the Security Trustee or
the Financier can still exercise it later.
NO LIABILITY FOR LOSS
15.7 None of the Security Trustee, a Senior Creditor or
the Junior Financier is liable for loss caused by
the exercise or attempted exercise of, failure to
exercise, or delay in exercising, a right or remedy.
CONFLICT OF INTEREST
15.8 The Security Trustee's or a Senior Creditor's or the
Junior Financier's rights and remedies under this
deed may be exercised even if this involves a
conflict of duty or the Security Trustee or the
Senior Creditor has a personal interest in their
exercise.
REMEDIES CUMULATIVE
15.9 The rights and remedies of the Security Trustee, a
Senior Creditor or the Junior Financier under this
deed are in addition to other rights and remedies
given by law independently of this deed.
RIGHTS AND OBLIGATIONS ARE UNAFFECTED
15.10 Rights given to the Security Trustee, a Senior
Creditor or the Junior Financier under this deed and
the Obligor's liabilities under it are not affected
by any law that might otherwise affect them.
INDEMNITIES
15.11 The indemnities in this deed are continuing
obligations, independent of the Obligors' other
obligations under this agreement and continue after
this deed ends. It is not necessary for the Security
Trustee, a Senior Creditor or the Junior Financier
to incur expense or make payment before enforcing a
right of indemnity under this deed.
VARIATION AND WAIVER
15.12 Unless this deed expressly states otherwise, a
provision of this deed, or right created under it,
may not be waived or varied except in writing signed
by the party or parties to be bound.
CONFIDENTIALITY
15.13 The Security Trustee, a Senior Creditor and the
Junior Financier 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 and Junior
Financier 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 Financier's rights or
other person who is considering contracting
with the Financier in connection with a
Transaction Document); or
(b) to a person considering entering into (or who
enters into) a credit swap with the Security
Trustee, a Senior Creditor or the Junior
Financier involving credit events relating to
the Borrowers or any of their Related
Entities; or
(c) to officers, employees, legal and other
advisers and auditors of the Security
Trustee, a Senior Creditor or the Junior
Financier; or
(d) to any party to this agreement or any Related
Entity of the Security Trustee, a Senior
Creditor or the Junior Financier, provided
the recipient agrees to act consistently with
this clause 15.13; or
(e) with the Obligors' consent (not to be
unreasonably withheld); or
(f) as allowed, requested or required by any
law, stock exchange or regulatory authority.
The Obligors consent to disclosures made in accordance with this
clause 15.13.
FURTHER STEPS
15.14 The Obligors agree to do anything the Security
Trustee 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 Bank
Finance Documents.
INCONSISTENT LAW
15.15 To the extent permitted by law, this deed prevails
to the extent it is inconsistent with any law.
SUPERVENING LEGISLATION
15.16 Any present or future legislation which operates to
vary the obligations of the Obligors in connection
with a Finance Document with the result that the
Security Trustee's, a Senior Creditor's or the
Junior Financier's rights, powers or remedies are
adversely affected (including by way of delay or
postponement) is excluded except to the extent that
its exclusion is prohibited or rendered ineffective
by law.
TIME OF THE ESSENCE
15.17 Time is of the essence in any Bank Finance Document
in respect of an obligation of an Obligor to pay
money.
COUNTERPARTS
15.18 This deed may consist of a number of copies of this
deed each signed by one or more parties to the deed.
When taken together, the signed copies are treated
as making up the one document.
SERVING DOCUMENTS
15.19 Without preventing any other method of service, any
document in a court action may be served on a party
by being delivered to or left at that party's
address for service of notices under clause 13
(Notices). TU Australia Holdings No. 1 Ltd and
TU Australia Holdings No. 2 Ltd irrevocably appoint
TU Australia Holdings (AGP) Pty Ltd to receive any
document referred to in this clause. If, for any
reason, TU Australia Holdings (AGP) Pty Ltd ceases to
be able to act as Security Trustee, TU Australia
Holdings No. 1 Ltd and TU Australia Holdings No. 2
Ltd must immediately appoint another person within
Victoria to receive any such document and notify the
Security Trustee.
16 GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS
- ----------------------------------------------------------------------------
16.1 This deed is governed by the law in force in
Victoria.
16.2 Each party irrevocably and unconditionally submits
to the non-exclusive jurisdiction of the courts of
Victoria and courts of appeal from them. Each party
waives any right it has to object to an action being
brought in those courts including, without
limitation, by claiming that the action has been
brought in an inconvenient forum or that those
courts do not have jurisdiction.
16.3 Without preventing any other mode of service, any
document in an action (including, without
limitation, any writ of summons or other originating
process or any third or other party notice) may be
served on any party by being delivered to or left
for that party at its address for service of notices
under clause 13.
EXECUTED as a deed
SCHEDULE 1 NEW CREDITOR ACCESSION DEED
- -----------------------------------------------------------------------------
DEED dated between:
[ ] (the New Creditor); and
[ ] (the Retiring Creditor); and]
[ ] (the Security Trustee) for itself and on behalf of the other
parties to the Security Trust Deed.
DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this deed, "Security Trust Deed" means the security trust deed dated
[ ] between the Security Trustee and others. Terms defined in the
Security Trust Deed have the same meaning in this deed.
1.2 INTERPRETATION
Clause 1.2 of the Security Trust Deed applies to this deed.
2. ACCESSION AND RELEASE
2.1 With effect from and including [the date of this deed/other date as
appropriate]:
(a) the New Creditor assumes the obligations and acquire the rights
of the Retiring Creditor [or specify portion of rights acquired]
under the Security Trust Deed and each [Bank/Junior] Finance
Document, as a [Senior/Junior] Creditor;
(b) each other party to the Security Trust Deed and each
[Bank/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 Security Trust Deed but
without prejudice to any existing liability).]
2.2 This deed is a [Bank/Junior] Finance Document and the New Creditor is a
[Senior Creditor/Junior Creditor] for the purposes of the Security Trust
Deed.
3. NOTICES
For the purpose of the [Bank/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.
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]
SCHEDULE 2 NOTICES
- -----------------------------------------------------------------------------
CORE BORROWERS, GUARANTORS, TUA, TEXAS
PURCHASERS AND EASTERN
Address: Energy Plaza
Address: Level 49 1601 Bryan Street
525 Collins Street Dallas, Texas 75201
Melbourne Vic 3000 United States of America
Fax: 9629 8292 Fax: (214) 812 2488
Tel:
Attention: Managing Director Attention:
CITIBANK, N.A.
Address: Level 26
101 Collins Street
Melbourne Vic 3000
Fax: 9653 7301
SECURITY TRUSTEE AGENT
Address: Level 2 Address: Level 2
271 Collins Street 271 Collins Street
Melbourne Vic 3000 Melbourne Vic 3000
Fax: 9659 6927 Fax: 9659 6927
Tel: 9659 6755 Tel: 9659 6755
Attention: Head of Agency Attention: Head of Agency
EXECUTION PAGE
- --------------------------------------------------------------------------
SIGNED, SEALED AND DELIVERED for TU )
AUSTRALIA HOLDINGS (PARTNERSHIP) LIMITED )
PARTNERSHIP by being signed by R.S. )
Shapard an attorney for TU AUSTRALIA )
HOLDINGS (AGP) PTY LTD the general )
partner of the TU Australia Holdings )
(Partnership) Limited Partnership under )
power of attorney dated 23/2/99 )
in the presence of: )
)
Steven J Pascoe (signed) ) R.S. Shapard (signed)
- ---------------------------------------- ---------------------------------
Signature of witness ) By executing this deed the
) attorney states that the attorney
Steven J Pascoe ) has received no notice of
- ---------------------------------------- revocation of the power of
Name of witness (block letters) ) attorney
49/525 Collins Street, Melbourne
- ----------------------------------------
Address of witness
Business Manager
- ----------------------------------------
Occupation of witness
SIGNED, SEALED AND DELIVERED )
by R.S. Shapard )
as attorney for TU AUSTRALIA HOLDINGS PTY )
LTD under power of attorney dated 23/2/99 )
)
in the presence of: )
)
Steven J Pascoe (signed) )
- ----------------------------------------
Signature of witness )
)
)
Steven J Pascoe )
- ----------------------------------------
Name of witness (block letters) ) R.S. Shapard (signed)
) ---------------------------------
49/525 Collins Street, Melbourne ) By executing this deed the
- ---------------------------------------- attorney states that the attorney
Address of witness ) has received no notice of
) revocation of the power of
) attorney
Business Manager
- ----------------------------------------
Occupation of witness
SIGNED, SEALED AND DELIVERED )
by R.S. Shapard )
as attorney for TUA (NO. 8) PTY LTD )
under power of attorney dated 23/2/99 )
)
in the presence of: )
)
Steven J Pascoe (signed) )
- ----------------------------------------
Signature of witness )
)
Steven J Pascoe )
- ----------------------------------------
Name of witness (block letters) )
)
49/525 Collins Street, Melbourne ) R.S. Shapard (signed)
- ---------------------------------------- ---------------------------------
Address of witness ) By executing this deed the
) attorney states that the attorney
Business Manager ) has received no notice of
- ---------------------------------------- ) revocation of the power of
Occupation of witness attorney
SIGNED, SEALED AND DELIVERED )
by R.S.Shapard )
as attorney for TUA (NO. 9) PTY LTD )
under power of attorney dated 23/2/99 )
)
in the presence of: )
)
Steven J Pascoe (signed) )
- ----------------------------------------
Signature of witness )
)
Steven J Pascoe )
- ----------------------------------------
Name of witness (block letters )
)
49/525 Collins Street, Melbourne ) R.S. Shapard (signed)
- ---------------------------------------- ---------------------------------
Address of witness ) By executing this deed the
) attorney states that the attorney
has received no notice of
Business Manager ) revocation of the power of
- ----------------------------------------- attorney
Occupation of witness
SIGNED, SEALED AND DELIVERED )
by R.S. Shapard )
as attorney for TEXAS UTILITIES )
AUSTRALIA PTY LTD under power of )
attorney dated 23/2/99 )
)
in the presence of: )
)
Steven J Pascoe (signed) )
- ----------------------------------------
Signature of witness )
)
Steven J Pascoe )
- ----------------------------------------
Name of witness (block letters) )
) R.S. Shapard (signed)
49/525 Collins Street, Melbourne ) ---------------------------------
- ---------------------------------------- By executing this deed the
Address of witness ) attorney states that the attorney
) has received no notice of
Business Manager ) revocation of the power of
- ---------------------------------------- attorney
Occupation of witness
SIGNED, SEALED AND DELIVERED )
by R.S. Shapard )
as attorney for TUA (NO. 10) PTY LTD )
under power of attorney dated 23/2/99 )
)
in the presence of: )
)
Steven J Pascoe (signed) )
- ---------------------------------------- )
Signature of witness )
)
Steven J Pascoe )
- ---------------------------------------- )
Name of witness (block letters) )
)
49/525 Collins Street, Melbourne ) R.S. Shapard (signed)
- ---------------------------------------- ) ---------------------------------
Address of witness ) By executing this deed the
) attorney states that the attorney
Business Manager ) has received no notice of
- ---------------------------------------- revocation of the power of
Occupation of witness attorney
SIGNED, SEALED AND DELIVERED )
by R.S. Shapard )
as attorney for TUA (NO. 11) PTY LTD )
under power of attorney dated 23/2/99 )
)
in the presence of: )
)
Steven J Pascoe (signed) )
- ---------------------------------------- )
Signature of witness )
)
Steven J Pascoe )
- ---------------------------------------- )
Name of witness (block letters) )
)
49/525 Collins Street, Melbourne ) R.S. Shapard (signed)
- ---------------------------------------- ) ---------------------------------
Address of witness ) By executing this deed the
) attorney states that the attorney
Business Manager has received no notice of
- ---------------------------------------- revocation of the power of
Occupation of witness attorney
SIGNED, SEALED AND DELIVERED )
by R.S. Shapard )
as attorney for EASTERN ENERGY )
LIMITED under power of attorney dated )
23/2/99 )
)
in the presence of: )
)
Steven J Pascoe (signed) )
- ----------------------------------------
Signature of witness )
)
Steven J Pascoe )
- ----------------------------------------
Name of witness (block letters) )
) R.S. Shapard (signed)
49/525 Collins Street, Melbourne ) ---------------------------------
- ---------------------------------------- By executing this deed the
Address of witness ) attorney states that the attorney
) has received no notice of
Business Manager revocation of the power of
- ---------------------------------------- attorney
Occupation of witness
SIGNED, SEALED AND DELIVERED )
by TEXAS UTILITIES COMPANY by )
its duly authorised representative )
)
in the presence of: )
)
Christine Larkin (signed) )
- ----------------------------------------
Signature of witness )
)
Christine Larkin )
- ----------------------------------------
Name of witness (block letters) )
)
1601 Bryan Street, 30th Floor, Dallas, )
- ----------------------------------------
Texas )
- ---------------------------------------- ---------------------------------
Address of witness Authorised Representative
Attorney
- ----------------------------------------
Occupation of witness
JUNIOR FINANCIER
SIGNED, SEALED AND DELIVERED )
by Joseph Sheehan, Vice President )
)
and Dale Murphy, Vice President )
)
as attorneys for CITIBANK, N.A. under )
power of attorney dated 20 August 1996 )
)
in the presence of: )
)
W.A. Glover (signed) ) Joseph Sheehan (signed)
- ---------------------------------------- ---------------------------------
Signature of witness )
)
W.A. Glover (signed) )
- ----------------------------------------
Name of witness (block letters) ) Dale Murphy (signed)
) ----------------------------------
101 Collins Street, Melbourne ) By executing this deed the
- ---------------------------------------- attorneys state that the attorneys
Address of witness have received no notice of
revocation of the power of
Solicitor attorney
- ----------------------------------------
Occupation of witness
AGENT
SIGNED, SEALED AND DELIVERED )
by Peter Robinson )
as attorney for NATIONAL )
AUSTRALIA BANK LIMITED under )
power of attorney dated 28 February 1991 )
in the presence of: )
)
Melanie Butcher (signed) )
- ----------------------------------------
Signature of witness )
)
Melanie L Butcher )
- ----------------------------------------
Name of witness (block letters) )
)
Level 28, 525 Collins Street, Melbourne ) Peter Robinson (signed)
- ---------------------------------------- ---------------------------------
Address of witness ) By executing this deed the
) attorney states that the attorney
Solicitor ) has received no notice of
- ---------------------------------------- revocation of the power of
Occupation of witness attorney
SECURITY TRUSTEE
SIGNED, SEALED AND DELIVERED )
by Peter Robinson )
as attorney for NATIONAL )
AUSTRALIA BANK LIMITED under )
power of attorney dated 28 February 1991 )
in the presence of: )
)
Melanie Butcher (signed) )
- ----------------------------------------
Signature of witness )
)
Melanie L Butcher )
- ----------------------------------------
Name of witness (block letters) )
)
Level 28, 525 Collins Street, Melbourne ) Peter Robinson (signed)
- ---------------------------------------- ---------------------------------
Address of witness ) By executing this deed the
) attorney states that the attorney
Solicitor ) has received no notice of
- ---------------------------------------- revocation of the power of
Occupation of witness attorney