Exhibit 10(jj)
Mallesons Stephen Jaques
Loan Note Deed Poll
Dated 26 February 2004
By TXU Australia Holdings Pty Ltd (ABN 97 086 006 859)
Mallesons Stephen Jaques
Rialto
525 Collins Street
Melbourne Vic 3000
T +61 3 9643 4000
F +61 3 9643 5999
DX 101 Melbourne
RJH
7036704_2
- -------------------------------------------------------------------------------
(c)Mallesons Stephen Jaques Loan Note Deed Poll 1
25 February 2004
Exhibit 10(kk)
Loan Note Deed Poll
Details
Interpretation - definitions are at the end of the General terms
- ------------------------------------------------------------------------------
Parties Borrower
- -------------------------------------------------------------------------------
Borrower Name TXU Australia Holdings Pty Ltd (ABN 97
086 006 859)
Incorporated in: Australia
Address: Level 33, 385 Bourke Street, Melbourne,
Victoria
Fax (61 3) 8628 0925
Telephone (61 3) 8628 1000
Attention Assistant Treasurer
- -------------------------------------------------------------------------------
Beneficiaries Each person who from time to time is a Financier and
the Facility Agent.
- -------------------------------------------------------------------------------
Subscription Loan Note Subscription Agreement between,
Agreement amongst others, the Borrower, Australia and New
Zealand Banking Group Limited (as the Facility Agent)
and the Financiers dated 26 February 2004.
- -------------------------------------------------------------------------------
Date of deed See Signing page.
- -------------------------------------------------------------------------------
(c) Mallesons Stephen Jaques Loan Note Deed Poll 1
25 February 2004
Loan Note Deed Poll
General terms
- -------------------------------------------------------------------------------
1 The Loan Notes
1.1 Creation of Loan Notes
The obligations of the Borrower under the Loan Notes are constituted
by, and are set out in, this deed.
1.2 Undertakings and acknowledgment of debt
The Borrower:
(a) agrees to pay principal and interest in respect of each Loan
Note issued to a Financier in accordance with the Subscription
Agreement, the Loan Note and this deed; and
(b) acknowledges that it is indebted to each Financier for an
amount equal to the aggregate outstanding principal amount of
that Financier's Loan Notes.
1.3 Effect of payment of interest or redemption
The obligations of the Borrower under clause 1.2 ("Undertakings and
acknowledgments of debt") are discharged to the extent interest is paid
on, or a Loan Note is redeemed in accordance with the Subscription
Agreement.
- -------------------------------------------------------------------------------
2 Rights and Obligations Of Financiers
2.1 Benefit and entitlement
This deed is executed as a deed poll. The Loan Notes are issued on the
condition that the Facility Agent and each Financier has the benefit
of, and is entitled to enforce, this deed subject to the Bank Finance
Documents even though it is not a party to, or is not in existence at
the time of execution and delivery of, this deed.
2.2 Rights independent
The Facility Agent and each Financier may enforce its rights under this
deed independently from the Registrar and each other Financier, subject
to the Bank Finance Documents.
2.3 Facility Agent and Financiers bound
Each of the Facility Agent and each Financier (and any person claiming
through or under a Financier) is bound by this deed. The Loan Notes are
issued on the condition that the Facility Agent and each Financier is
taken to have notice of, and be bound by this deed and the Subscription
Agreement.
- ------------------------------------------------------------------------------
(c) Mallesons Stephen Jaques Loan Note Deed Poll 2
25 February 2004
2.4 Directions to hold Deed Poll
Each of the Facility Agent and each Financier is taken to have
irrevocably instructed the Borrowers that this deed is to be held by
the Facility Agent as Registrar on its behalf.
2.5 Bank Finance Documents
The Loan Notes are issued on the condition that each Financier is bound
by the provisions of the Bank Finance Documents binding on the
Financiers.
2.6 Loan Notes issued as a result of Offer
Each Loan Note is issued as a result of the Offer. This is the case
regardless of the time of issue.
- -------------------------------------------------------------------------------
3 Form, title and status
3.1 Registered form
Each Loan Note takes the form of an entry in the Register. No
certificate will be issued in respect of it, unless required by law.
3.2 Issue of Loan Notes by entry in Register
A Loan Note is:
(a) issued when details of the Loan Note are first entered in the
Register; and
(b) transferred when the details of the transfer are entered in the
Register.
3.3 Effect of entries in Register
Each entry in the Register in respect of a Loan Note constitutes:
(a) an acknowledgment to the Financier registered as the holder
the Loan Note by the Borrower of the indebtedness of the
Borrower to that Financier under this deed;
(b) an undertaking by the Borrower to the Financier registered as
the holder of the Loan Note to make all payments of principal
and interest in respect of the Loan Note in accordance with
the terms of the Loan Note and this deed; and
(c) an entitlement to the other benefits given to the Financiers
and the Facility Agent under the Bank Finance Documents in
respect of the relevant Loan Note.
3.4 Independent obligations
Subject to the terms of the Subscription Agreement and the other Bank
Finance Documents, the obligations of the Borrower in respect of each
Loan Note constitute separate and independent obligations which the
Financier to whom those obligations are owed is entitled to enforce
without having to join any other Financier or any predecessor in title
of a Financier.
- ------------------------------------------------------------------------------
(c) Mallesons Stephen Jaques Loan Note Deed Poll 3
25 February 2004
3.5 Register conclusive as to ownership
Entries in the Register in relation to a Loan Note constitute
conclusive evidence that the person so entered is the absolute owner of
the Loan Note subject to correction for fraud or error.
3.6 Holder absolutely entitled
Upon a person acquiring title to any Loan Note by virtue of becoming
registered as the owner of that Loan Note, all rights and entitlements
arising by virtue of this deed in respect of that Loan Note vest
absolutely in the registered owner of the Loan Note free of all
equities. Any person who has previously been registered as the owner of
the Loan Note does not have, and is not entitled to assert against the
Borrower or the Registrar or the registered owner of the Loan Note for
the time being and from time to time, any rights, benefits or
entitlements in respect of the Loan Note.
3.7 Status of Loan Notes
The Loan Notes are direct, unsubordinated and unsecured obligations of
the Borrower and rank at least equally among themselves with all other
unsecured and unsubordinated obligations of the Borrower except for
liabilities mandatorily preferred by law.
- ------------------------------------------------------------------------------
4 Transfers
4.1 Limit on transfer
Each Loan Note may only be transferred in accordance with clause 30 of
the Subscription Agreement ("Substitution of Financiers and transfer of
Loan Notes") and this deed.
4.2 Transfer of all of Loan Note
Each Loan Note may only be transferred in whole.
4.3 Registration of transfer
The transferor of a Loan Note is taken to remain the holder of that
Loan Note until the name of the transferee is entered in the Register
in respect of that Loan Note.
- -------------------------------------------------------------------------------
5 Final redemption and early redemption
The Borrower agrees to redeem each Loan Note issued under a Facility in
accordance with clause 5 of the Subscription Agreement ("Redemption and
early redemption").
- -------------------------------------------------------------------------------
(c) Mallesons Stephen Jaques Loan Note Deed Poll 4
25 February 2004
- -------------------------------------------------------------------------------
6 Interest
The Borrower agrees to pay interest on each Loan Note issued under a
Facility in accordance with the Subscription Agreement.
- -------------------------------------------------------------------------------
7 Payments
The Borrower agrees to make all payments under a Loan Note in
accordance with clause 7 of the Subscription Agreement ("Payments").
- -------------------------------------------------------------------------------
8 Governing law
This deed poll and the Loan Notes are governed by the law in force in
the place specified in the "Details" section of the Subscription
Agreement. The Borrower submits to the non-exclusive jurisdiction of
the courts of that place.
- -------------------------------------------------------------------------------
9 Interpretation
The "Interpretation" clause of the Subscription Agreement described
above applies to this deed poll as if it was fully set out in this deed
poll.
EXECUTED as a deed poll.
- -------------------------------------------------------------------------------
(c) Mallesons Stephen Jaques Loan Note Deed Poll 5
25 February 2004
Loan Note Deed Poll
Signing page
DATED: 26 February 2004
SIGNED, SEALED AND )
DELIVERED for TXU AUSTRALIA )
HOLDINGS PTY LTD by )
John Gordon Atkin )
under power of attorney dated 23/2/04 )
in the presence of: )
)
/s/Alastaer Watson )
- ------------------------------------------ )
Signature of witness )
)
Alastaer Watson )
- ------------------------------------------ )
)
Name of witness (block letters) )
)
95 Rosida Street, Renwood )
- ------------------------------------------ )
Address of witness ) /s/John Gordon Atkin
) --------------------
) By executing this deed the
) attorney states that the
Assistant Treasurer ) attorney has received
- ------------------------------------------ ) no notice of revocation of the
Occupation of witness ) power of attorney
)