Agreement Categories
DEED OF GUARANTEE AND INDEMNITY NSW AUSTRALIA
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Source: http://www.sec.gov/Archives/edgar/data/1096948/000095012000000287/0000950120-00-000287-0005.txt
DEED OF GUARANTEE AND INDEMNITY
-------------------------------------------------------------------------------- CONTENTS DEED OF GUARANTEE AND INDEMNITY -------------------------------------------------------------------------------- 1 INTERPRETATION 1 2 BENEFIT OF GUARANTEE AND INDEMNITY 6 3 GUARANTEE 7 4 INDEMNITY 7 5 COVENANTS 7 6 INTEREST 8 7 EXTENT OF GUARANTEE AND INDEMNITY 8 8 PRESERVATION OF MTN HOLDER'S RIGHTS 8 9 SUSPENSION OF GUARANTOR'S RIGHTS 9 10 PAYMENTS 10 11 REINSTATEMENT OF BENEFICIARY'S RIGHTS 10 12 APPLICATION OF MONEY 11 13 MISCELLANEOUS 11 14 NOTICES 12 15 DEPOSIT AND PRODUCTION OF DEED 13 16 GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS 14
DEED OF GUARANTEE AND INDEMNITY
DATE: 11 September 2000
PARTIES: TXU (NO. 8) PTY LTD (ABN 15 085 235 776) and
TXU AUSTRALIA HOLDINGS PTY LTD (ABN 97 086 006 859) each
having its registered office at Level 17, 452 Flinders
Street, Melbourne, Victoria (individually the "GUARANTOR"
and collectively the "GUARANTORS")
RECITALS:
A. Under a Dealer Agreement dated 21 March 2000, the Issuer has
agreed with, among others, the Dealers named in that
agreement for the issue of MTNs.
B. Under MTN Deeds Poll dated on or about the same date as this
guarantee and indemnity, the Issuer has agreed to the
obligations set out in those deeds poll in relation to each
MTN issued from time to time ("MTN DEEDS POLL").
C. In accordance with the terms of the Dealer Agreement and the
MTN Deeds Poll, the Issuer proposes to issue MTNs from time
to time.
D. The Guarantors are wholly owned subsidiaries of the Issuer.
E. The Guarantors provide this guarantee and indemnity to each
person who is from time to time an MTN Holder and the
Financial Guarantor.
OPERATIVE PROVISIONS:
1 INTERPRETATION
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1.1 The following words have these meanings in this guarantee
and indemnity unless the contrary intention appears.
AUSTRACLEAR means Austraclear Limited (ABN 94 002 060 773).
AUSTRACLEAR SYSTEM means the system operated by Austraclear
for holding securities and electronic recording and settling
of transactions in those securities between members of that
system.
BENEFICIARY means each of:
(a) each person who is from time to time an MTN Holder; and
(b) the Financial Guarantor.
BUSINESS DAY MEANS:
(a) a day (other than a Saturday, Sunday or public holiday)
on which commercial banks are open for general banking
business in the place specified in the Pricing
Supplement, or, if no such place is specified, Sydney
and Melbourne; and
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(b) if a MTN is to be issued or paid on such Business Day
(i) a day on which commercial banks settle payments, in
the case of Australian dollars, in Sydney and
Melbourne, and, in the case of any other currency, in
the principal financial city in the country of that
currency and (ii) a day on which the relevant Clearing
System for that MTN is operating.
CLEARING SYSTEM means:
(a) the Austraclear System;
(b) the Euroclear system operated by Morgan Guaranty Trust
Company of New York, Brussels office;
(c) Clearstream, Luxembourg; or
(d) such other clearing system that is agreed from time to
time by the Issuer, the Programme Manager, the
Registrar and, as the case may be, either the I&P Agent
(Australia) or the I&P Agent (Offshore).
CLEARSTREAM, LUXEMBOURG means Clearstream Banking, societe
anonyme.
CORPORATIONS LAW means the Corporations Law in force in the
Commonwealth of Australia.
CREDIT WRAPPED MTN DEED POLL means the deed poll so
entitled, executed by the Issuer in New South Wales on or
about 11 September 2000.
DEALER AGREEMENT means the agreement dated 21 March 2000
between TXU Australia Holdings (Partnership) Limited
Partnership, the Arranger and Programme Manager, and the
Dealers, being the banks and financial institutions set out
in schedule 1 to that agreement, in relation to the issue of
MTNs and any financial institution appointed as a Dealer in
accordance with clause 19.3 of the Dealer Agreement and any
supplement to or replacement of it.
DENOMINATION means the notional face value of an MTN.
DOMESTIC ISSUE means an issue of MTNs which is specified as
such in a Pricing Supplement, being an issue offered
primarily in the Australian market.
EUROCLEAR means the Euroclear System operated by Morgan
Guaranty Trust Company of New York, Brussels office.
FEE AGREEMENT means any fee agreement entered into by the
Issuer with any Financial Guarantor from time to time in
relation to any MTNs.
FINANCIAL GUARANTOR means, in relation to a Tranche of MTNs,
the person specified as such in the Pricing Supplement
relating to that Tranche.
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GUARANTEED MONEYS means all amounts which at any time for
any reason or circumstance in connection with or under any
Transaction Document, whether at law, in equity, under
statute or otherwise, are payable, are owing but not
currently payable, are contingently owing, or remain unpaid
by the Issuer to a Beneficiary.
I&P AGENT (AUSTRALIA) means any person appointed by the
Issuer, with the consent of the Programme Manager and
Registrar, to perform issue and paying agency functions with
respect to each Series or Tranche of MTNs initially lodged
and held through or predominantly through the Austraclear
System.
I&P AGENT (OFFSHORE) means any person appointed by the
Issuer, with the consent of the Programme Manager and
Registrar, to perform issue and paying agency functions with
respect to each Series or Tranche of Non-Credit Wrapped MTNs
initially lodged and held through or predominantly through
Euroclear, Clearstream, Luxembourg or such other system as
is agreed from time to time by the Issuer, the Programme
Manager and the I&P Agent (Offshore).
ISSUER means TXU Australia Holdings (Partnership) Limited
Partnership being a limited partnership formed and
registered under the Partnership Act 1958 (Victoria), in
respect of which TXU Australia Holdings (AGP) Pty Ltd (ABN
16 086 014 931) is the general partner and TXU Australia
(LP) No. 1 Limited (ARBN 086 406 733) and TXU Australia (LP)
No. 2 Limited (ARBN 086 406 724) are the limited partners.
ISSUE DATE means the day on which any MTN is or is to be
issued.
MTN means a medium term debt obligation of the Issuer
constituted by, and owing under, either of the MTN Deeds
Poll to an MTN Holder, the details of which are recorded in,
and evidenced by, inscription in an MTN Register.
MTN DEEDS POLL means the Non-Credit Wrapped MTN Deed Poll
and the Credit Wrapped MTN Deed Poll and MTN DEED POLL shall
be construed accordingly.
MTN HOLDER means a person whose name is for the time being
entered in the Register as a holder of an MTN or, where an
MTN is held jointly by two or more persons, the persons
whose names appear in the Register as the joint holders of
that MTN and (for the avoidance of doubt) when an MTN is
entered into a Clearing System, includes the operator of
that system or a nominee for a common depository for one or
more Clearing Systems (such operator or nominee for a common
depository acting in such capacity as is specified in the
rules and regulations of the relevant Clearing System or
Systems).
MTN REGISTER means any register, including any branch
register, of MTN Holders established and maintained by or on
behalf of the Issuer in which is entered the names and
addresses of MTN Holders whose MTNS are carried on that
register, the amount of MTNs held by each MTN Holder and the
Tranche, Series and date of issue and transfer of those
MTNs, and any other particulars which the Issuer sees fit.
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NON-CREDIT WRAPPED MTN DEED POLL means the deed poll so
entitled executed by the Issuer in New South Wales on or
about 11 September 2000.
OFFSHORE ISSUE means an issue of which is specified as such
in a Pricing Supplement, as being an offer issued primarily
in a market outside Australia.
OVERDUE RATE means:
(a) where an overdue rate is specified in the Pricing
Supplement for an MTN, that rate; and
(b) in relation to the Financial Guarantor, the rate
specified as the overdue rate (whether described as a
"Late Payment Rate" or otherwise) in the Reimbursement
Agreement; and
(c) in any other case:
(i) the rate, expressed as a yield per cent per annum
(rounded upwards if necessary to two decimal
places) calculated by the Programme Manager as the
average of the buying rates on the BBSW reference
rate page of the Reuters monitor system (or any
page which replaces that page) by about 10.30 am
(Sydney time) on the first day of that period, for
MTNs having a tenor of equal or as near as
possible to the period for which the interest is
payable eliminating from the calculation the
highest rate so published if one such rate is
higher than all the other such rates, and the
lowest rate so published if one such rate is lower
than all the other such rates; or
(ii) if less than three such rates are so published at
that time on such a day the buying rate available
to the Programme Manager at about 11.00 am (Sydney
time) on that day, as conclusively determined in
good faith by the Programme Manager, for bank
accepted MTNs having a tenor equal to, or as near
as possible to, the period for which interest is
payable.
PARTNERSHIP means the TXU Australia Holdings (Partnership)
Limited Partnership being a limited partnership formed and
registered under the Partnership Act 1958 (Victoria).
PAYING AGENT means Chase Capital Markets Fiduciary Services
Australia Limited (ABN 48 002 916 396) or such other person
appointed as a replacement Paying Agent in relation to the
MTNs from to time.
PAYMENT AGENCY AND REGISTRY AGREEMENT means any agreement
under which the Paying Agent is appointed to act as a paying
agent and back-up registrar in relation to the MTNs issued
under the Credit Wrapped MTN Deed Poll.
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PRICING SUPPLEMENT means a pricing supplement prepared and
issued in relation to MTNs of a relevant Tranche or Series
which has been confirmed in writing by the Issuer and in or
substantially in the form of:
(a) in the case of MTNs issued under the Non-Credit Wrapped
MTN Deed Poll, schedule 6A of the Dealer Agreement; and
(b) in the case of MTNs issued under the Credit Wrapped MTN
Deed Poll, schedule 6B of the Dealer Agreement.
PROGRAMME MANAGER means National Australia Bank Limited (ABN
12 004 044 937).
REGISTRAR means:
(a) in relation to any Tranche or Series of MTNs which are
denominated in Australian Dollars and issued as part of
a Domestic Issue, Austraclear Services Limited (ABN 28
003 284 419) or such other person appointed by the
Issuer pursuant to the Registry Services Agreement to
establish and maintain the relevant Register for such
MTNs on the Issuer's behalf from time to time; and
(b) in relation to any Tranche or Series of MTNs which are
not denominated in Australian Dollars and/or which are
issued pursuant to an Offshore Issue, such person
appointed by the Issuer with the consent of the
Programme Manager to establish and maintain the
Register for such MTNs on the Issuer's behalf from time
to time,
provided that the Registrar must be the same for all MTNs in
a Series.
REGISTRY SERVICES AGREEMENT means the agreement dated 21
March 2000 entitled "Agency and Registry Services Agreement"
entered into between the Issuer and the Registrar and any
supplement to or replacement of it.
REIMBURSEMENT AGREEMENT means any agreement under which the
Financial Guarantor agrees, subject to satisfaction of the
conditions precedent to issue the Financial Guarantee and
under which the Issuer and the Guarantors agree to reimburse
the Financial Guarantor for various amounts.
SERIES means an issue of MTNs made up of one or more
Tranches all of which MTNs have identical terms except that:
(a) the Issue Date and the amount of the first payment of
interest may be different in respect of different
Tranches of a Series; and
(b) a Series may comprise MTNs in more than one
Denomination.
TRANCHE means an issue of MTNs all of which MTNs are issued
on the same issue date and the terms of which are identical
in all respects (except that a Tranche may comprise MTNs in
more than one Denomination).
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TRANSACTION DOCUMENTS means each of the Non-Credit Wrapped
MTN Deed Poll, the Credit Wrapped MTN Deed Poll, each MTN,
each Pricing Supplement, each Subscription Agreement, the
Payment Agency and Registry Agreement, the Registry Services
Agreement, the Reimbursement Agreement and the Fee
Agreement.
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, a body corporate, an
unincorporated association or an authority;
(e) a reference to a person includes a reference to the
person's executors, administrators, successors,
substitutes (including, without limitation, persons
taking by novation) and assigns;
(f) an agreement, undertaking representation or warranty in
favour of two or more persons (including, without
limitation the Guarantors) is for the benefit of them
jointly and severally;
(g) an obligation, agreement, undertaking, representation
or warranty on the part of two or more persons
(including, without limitation the Guarantors) binds
them jointly and severally;
(h) a reference to an accounting term is to be interpreted
in accordance with approved accounting standards under
the Corporations Law and, if not inconsistent with
those accounting standards, generally accepted
principles and practices in Australia consistently
applied by a body corporate or as between bodies
corporate and over time;
(i) a reference to any thing (including, without
limitation, the Guaranteed Money and any other amount)
is a reference to the whole and each part of it and a
reference to a group of persons is a reference to all
of them collectively, to any two or more of them
collectively and to each of them individually.
1.3 Headings are inserted for convenience and do not affect the
interpretation of this guarantee and indemnity.
2 BENEFIT OF GUARANTEE AND INDEMNITY
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2.1 This guarantee and indemnity is executed as a deed poll.
Accordingly, each Beneficiary has the benefit of, and is
entitled to enforce, this deed even though it is not a party
to, or is not in existence at the time of execution and
delivery of, this deed.
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2.2 Each Beneficiary may enforce its rights under this deed
independently from each other Beneficiary.
2.3 Each Beneficiary is taken to have irrevocably instructed the
Issuer that this deed is to be delivered to and held by the
Registrar in New South Wales on its behalf.
3 GUARANTEE
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3.1 The Guarantors unconditionally and irrevocably guarantee
payment of the Guaranteed Moneys to the Beneficiaries.
3.2 If the Issuer does not pay the Guaranteed Money on time and
in accordance with the terms and conditions of the relevant
Transaction Document, then the Guarantors agree to pay the
Guaranteed Moneys to the relevant Beneficiary on demand from
that Beneficiary. A demand may be made at any time and from
time to time.
3.3 Notwithstanding the provisions of clauses 3.1 and 3.2, no
demand is required and the Guarantors' payment obligations
under this deed will become due immediately where the Issuer
fails to pay in accordance with the Transaction Documents
any amount due to any person who is from time to time the
holder of an MTN under the Credit Wrapped MTN Deed Poll.
4 INDEMNITY
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4.1 The Guarantors unconditionally and irrevocably indemnify
each Beneficiary against loss the Beneficiary suffers and
undertakes to pay to each Beneficiary an amount equal to the
loss that the Beneficiary suffers because:
(a) the liability to pay the Guaranteed Money in relation
to the relevant Transaction Document is, or always has
been, unenforceable in whole or in part as a result of
lack of capacity, power or authority or improper
exercise of power or authority; or
(b) the Guaranteed Money in relation to the relevant
Transaction Document is not or has never been
recoverable from the Guarantors under clause 3, or from
the Issuer because of any other circumstance
whatsoever.
It is not necessary for a Beneficiary to incur expense or
make payment before enforcing any right of indemnity arising
under this clause 4.1.
4.2 The Guarantors as principal debtors agree to pay each
Beneficiary on demand a sum equal to the amount of the loss
described in clause 4.1.
5 COVENANTS
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The Guarantors agree to comply with the covenants relating
to them set out in the Credit Wrapped MTN Deed Poll and the
Non-Credit Wrapped MTN Deed Poll.
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6 INTEREST
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6.1 The Guarantors agree to pay accumulated interest at the
Overdue Rate on:
(a) any amount payable by the Guarantors under this deed,
from when it becomes due for payment during the period
that it remains unpaid; and
(b) that part of the Guaranteed Money on which interest is
not payable by the Issuer from when it becomes due for
payment by the Guarantors under this deed, during the
period that it remains unpaid under this deed.
6.2 If a liability under this deed becomes merged in a judgment
or order, then the Guarantors agree to pay interest to the
relevant MTN Holder on the amount of that liability as an
independent obligation. This interest accrues from the date
the liability becomes due for payment both before and after
the judgment or order until it is paid, at a rate that is
the higher of the rate payable under the judgment or order
and the Overdue Rate.
7 EXTENT OF GUARANTEE AND INDEMNITY
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CONTINUING SECURITY
This deed is a continuing security and extends to all of the
Guaranteed Moneys and other money payable under this deed.
The Guarantors waive any right either of them has of first
requiring a Beneficiary to commence proceedings or enforce
any other right against the Issuer or any other person
before claiming from the Guarantors under this deed.
8 PRESERVATION OF MTN HOLDER'S RIGHTS
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The liabilities under this deed of the Guarantors as
guarantors, principal debtors or indemnifiers and the rights
of the Beneficiaries under this deed are not affected by
anything which might otherwise affect them at law or in
equity including, without limitation, one or more of the
following (whether occurring with or without the consent of
a person):
(a) a Beneficiary or another person granting time or other
indulgence (with or without the imposition of an
additional burden) to, compounding or compromising with
or wholly or partially releasing the Issuer or another
person in any way;
(b) laches, acquiescence, delay, acts, omissions or
mistakes on the part of a Beneficiary or another person
or any two or more of them;
(c) changes which from time to time may take place in the
membership, name or business of a firm, partnership,
committee or association whether by death, retirement,
admission or otherwise whether or not either of the
Guarantors or another person was a member;
9
(d) the death, insolvency or liquidation of any person;
(e) a change in the legal capacity, rights or obligations
of a person;
(f) the fact that a person is a trustee, responsible entity
or manager, nominee, joint owner, joint venturer or a
member of a partnership, firm or association;
(g) a judgment against the Issuer or another person;
(h) the receipt of a dividend after the insolvency or
liquidation of any person or the payment of a sum or
sums into the account of the Issuer or another person
at any time (whether received or paid jointly, jointly
and severally or otherwise);
(i) any part of the Guaranteed Moneys being irrecoverable;
(j) an assignment of rights in connection with the
Guaranteed Moneys;
(k) the acceptance of repudiation or other termination in
connection with the Guaranteed Moneys;
(l) the invalidity or unenforceability of an obligation or
liability of a person other than of either Guarantor;
(m) invalidity or irregularity in the execution of this
guarantee and indemnity by either Guarantor or any
deficiency in or irregularity in the exercise of the
powers of either Guarantor to enter into or observe its
obligations under this deed or of the Issuer (including
any partner in the Partnership) to enter into or
observe its obligations under an MTN;
(n) any obligation of the Issuer being discharged by
operation of law.
9 SUSPENSION OF GUARANTOR'S RIGHTS
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As long as the Guaranteed Moneys or other money payable
under this deed remain unpaid, the Guarantors must not
without the consent of the Beneficiaries:
(a) in reduction of their respective liability under this
deed, raise a defence, set-off or counterclaim
available to itself or the Issuer against a Beneficiary
or claim a set-off or make a counterclaim against that
Beneficiary; or
(b) make a claim or enforce a right against the Issuer or
against its estate or property; or
(c) prove in competition with the relevant Beneficiary if a
liquidator, provisional liquidator, receiver,
administrator or trustee in bankruptcy is appointed in
respect of the Issuer whether in respect of an amount
paid by either Guarantor under this deed or otherwise.
10
10 PAYMENTS
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MANNER OF PAYMENT
10.1 The Guarantors agree to make all payments under this deed to
the relevant Beneficiary. The Guarantors agree to make
payments to the relevant Beneficiary under this deed in
immediately available funds in the same manner and currency
which the Issuer is, or would have been, required to pay
under the Transaction Documents.
10.2 The Guarantors agree to make payments without set-off or
counterclaim and free and clear of any withholding or
deduction for any taxes, duties, or other charges or
withholdings imposed by the Commonwealth of Australia or any
state or territory of Australia unless prohibited by law.
TAXES
10.3 If a law requires either Guarantor to withhold or deduct
taxes, duties or other charges or withholdings imposed by
the Commonwealth of Australia or any state or territory of
Australia from a payment so that a Beneficiary would not
actually receive for its own benefit on the due date the
full amount provided for under this deed, then:
(a) the amount payable is increased so that, after making
that deduction and deductions applicable to additional
amounts payable under this clause, the relevant
Beneficiary is entitled to receive the amount it would
have received if no deductions had been required; and
(b) that Guarantor must make the deductions; and
(c) that Guarantor must pay the full amount deducted to the
relevant authority in accordance with applicable law
and deliver the original receipts to the relevant
Beneficiary.
10.4 The Guarantors waive any right which either of them may have
in any jurisdiction to pay an amount in a currency other
than the currency in which the Guaranteed Moneys or other
money payable under this deed is payable.
10.5 If an amount is due in a currency and a Beneficiary receives
payment in another currency, then that Beneficiary may
convert the amount received into the due currency at the
spot rate at which that Beneficiary is able to purchase the
due currency with the amount received at the time of its
receipt. The Guarantors satisfy their obligations to pay in
the due currency only to the extent of the amount of the due
currency purchased after deducting the costs of conversion.
The Guarantors acknowledge that it may be necessary for the
Beneficiary to convert amounts received through a currency
other than the due currency to ascertain the equivalent in
the due currency of the amount received.
11 REINSTATEMENT OF BENEFICIARY'S RIGHTS
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If a claim is made that all or part of a payment,
obligation, settlement, transaction, conveyance or transfer
in connection with the Guaranteed Moneys or other money
payable under this deed is void or voidable (including, but
11
not limited to, a claim under laws relating to liquidation,
administration, insolvency or protection of creditors) and
the claim is upheld, conceded or compromised, then:
(a) the relevant Beneficiary is entitled immediately as
against the Guarantors to the rights in respect of the
Guaranteed Moneys to which it would have been entitled
if all or that part of that payment, obligation,
settlement, transaction, conveyance or transfer had not
taken place; and
(b) promptly on request from the relevant Beneficiary, the
Guarantors agree to do any act and sign any document to
restore to the relevant Beneficiary any guarantee held
by it from the Guarantors immediately prior to that
payment, obligation, settlement, transaction,
conveyance or transfer.
12 APPLICATION OF MONEY
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The Beneficiary may apply money paid by the Issuer or the
Guarantors or otherwise towards satisfaction of the
Guaranteed Money and other money payable under this deed in
the manner it sees fit.
13 MISCELLANEOUS
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CERTIFICATE
13.1 A certificate signed by the Beneficiary about a matter or
about a sum payable to that Beneficiary in connection with
this deed is sufficient evidence of the matter or sum stated
in the certificate unless the matter or sum is proved to be
incorrect.
EXERCISE OF RIGHTS
13.2 The Beneficiary may exercise a right, power or remedy at its
discretion, and separately or concurrently with another
right, power or remedy. A single or partial exercise of a
right, power or remedy by a Beneficiary does not prevent a
further exercise of that or an exercise of any other right,
power or remedy. Failure by a Beneficiary to exercise or
delay in exercising a right, power or remedy does not
prevent its exercise. A Beneficiary is not liable for any
loss caused by the lawful exercise, or attempted exercise
of, failure to exercise, or delay in exercising the right,
power or remedy.
WAIVER AND VARIATION
13.3 A provision of or a right created under this deed may not be
waived or varied except in writing signed by the party or
parties to be bound.
SUPERVENING LEGISLATION
13.4 Any present or future legislation which operates to vary the
obligations of the Guarantors in connection with this deed
with the result that a Beneficiary's rights, powers or
remedies are adversely affected (including, without
limitation, by way of delay or postponement) is excluded
except to the extent that its exclusion is prohibited or
rendered ineffective by law.
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APPROVALS AND CONSENT
13.5 A Beneficiary may give conditionally or unconditionally or
withhold its approval or consent in its absolute discretion
unless this deed expressly provides otherwise.
REMEDIES CUMULATIVE
13.6 The rights, powers and remedies provided in this deed are
cumulative with and not exclusive of the rights, powers or
remedies provided by law independently of this deed.
INDEMNITIES
13.7 Each indemnity in this deed is a continuing obligation,
separate and independent from the other obligations of the
Guarantors and survives termination of this deed.
TIME OF THE ESSENCE
13.8 Time is of the essence of this deed in respect of an
obligation of the Guarantors to pay money.
FURTHER ASSURANCES
13.9 At the request of a Beneficiary the Guarantors must, at
their own expense, execute and cause its successors to
execute documents and do everything else necessary or
appropriate to bind themselves and their respective
successors under this deed.
COUNTERPARTS
13.10 This deed may consist of a number of counterparts and the
counterparts taken together constitute one and the same
instrument.
14 NOTICES
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14.1 A notice or other communication in connection with this deed
to the MTN Holders, or any one of them, is valid if:
(a) made by an advertisement published in The Australian
Financial Review or any other newspaper or newspapers
circulated in Australia generally; or
(b) made by prepaid post or delivery to the address of each
MTN Holder or any relevant MTN Holder as shown in the
Register at the close of business three Business Days
prior to the dispatch of the relevant notice or
communication; and
(c) copied to the Financial Guarantor.
14.2 A notice or other communication in connection with this deed
to the Guarantors must be in writing and may be given by
prepaid post or delivery to the following address or by
facsimile to the following facsimile number:
TXU (NO. 8) PTY LTD/TXU AUSTRALIA HOLDINGS PTY LTD
Address: Level 17
452 Flinders Lane
Melbourne Vic 3000
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Facsimile: (61 3) 9229 6222
Attention: Assistant Treasurer
14.3 All notices, requests, demands, consents, approvals,
agreements or other communications to the Financial
Guarantor under this deed must be in writing and left at the
address of the Financial Guarantor or sent by prepaid
ordinary post (airmail if outside Australia) to the address
of the Financial Guarantor or by facsimile to the facsimile
number of the Financial Guarantor specified:
(a) in the relevant Information Memorandum; or
(b) as otherwise notified to the MTN Holders from time to
time.
15 DEPOSIT AND PRODUCTION OF DEED
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15.1 This deed must be deposited with and held by the Registrar
("CUSTODIAN") for so long as any claim made against the
Issuer or the Guarantors by any Beneficiary in relation to
this deed or any Transaction Document has not been finally
adjudicated, settled or discharged.
15.2 The Guarantors acknowledge the right of every Beneficiary to
the production of this deed in accordance with this clause
15.
15.3 Within five Business Days of receipt by the Custodian of a
request from a Beneficiary to do so, the Guarantor must
procure that the Custodian provides to that Beneficiary (at
the Beneficiary's expense):
(a) a certified copy of this deed if required in connection
with any legal proceeding, claim or action brought by
such Beneficiary in relation to its rights under this
deed ("RELEVANT PROCEEDING"); or
(b) the original of this deed to a court if the Custodian
is satisfied that:
(i) such document is required in connection with any
Relevant Proceeding;
(ii) the relevant Beneficiary has taken reasonable
steps to ensure that such document will not be
lost, damaged or destroyed; and
(iii) such document will be returned to the Custodian
on request and is capable of being made available
in respect of any other legal proceeding, claim or
action brought by another Beneficiary in relation
to such other Beneficiary's rights under this
deed.
The Custodian is not liable for any loss or damage suffered
by any Beneficiary in relation to the provision by the
Custodian of certified copies of, or the original of, this
deed in accordance with clause 14.3 including, without
limitation, any loss or damage suffered by a Beneficiary who
has requested the original of this deed which is at that
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time produced to a court in connection with a proceeding or
action brought by another Beneficiary.
16 GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS
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GOVERNING LAW
16.1 This deed is governed by the law in force in the State of
New South Wales.
JURISDICTION
16.2 Each Guarantor irrevocably and unconditionally submits to
the non-exclusive jurisdiction of the courts of the state of
New South Wales and courts of appeal from them. Each
Guarantor 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.
EXECUTED as a deed poll in New South Wales
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