The Note Trustee may not create or allow to exist a Security Interest in respect of its rights under this deed or otherwise dispose of or deal with its rights under this deed which would in any way adversely affect the performance of its obligations under this deed or the interests of any Noteholder.
24 General
24.1 Prompt performance
If this deed specifies when a party agrees to perform an obligation, the party agrees to perform it by the time specified. The party agrees to perform all other obligations promptly.
24.2 Certificates
The Note Trustee, the Registrar or their solicitors may give RE a certificate about an amount payable or other matter in connection with this deed. The certificate is sufficient evidence of the amount or matter, unless it is proved to be incorrect.
24.3 Calculations binding
All notifications, opinions, determinations, certificates, calculations, quotations and decisions given, expressed, made or obtained by the Registrar or the Note Trustee, are (in the absence of wilful default, bad faith or manifest error) binding on RE, the Registrar, the Note Trustee and all Noteholders and, subject to clause 9.9 (“Exoneration and acknowledgments”), no liability to the
Noteholders attaches to the Note Trustee in connection with the exercise or non-exercise by it of its powers, duties and discretions in this regard.
24.4 Set-off
At any time after an Event of Default, the Note Trustee may set off any amount due for payment by the Note Trustee to RE against any amount due for payment by RE to the Note Trustee under this deed.
24.5 Discretion in exercising rights
A party may exercise a right or remedy or give or refuse its consent under this deed in any way it considers appropriate (including by imposing conditions).
24.6 Partial exercising of rights
If a party does not exercise a right or remedy under this deed fully or at a given time, the party may still exercise it later.
24.7 No liability for loss
The Note Trustee is not liable for loss caused by the exercise or attempted exercise of, failure to exercise, or delay in exercising, a right or remedy under this deed.
24.8 Conflict of interest
Rights and remedies of the Note Trustee or RE under this deed may be exercised even if this involves a conflict of duty or the Note Trustee or RE has a personal interest in their exercise.
24.9 Remedies cumulative
The rights and remedies of each party under this deed are in addition to other rights and remedies given by law independently of this deed.
24.10 Indemnities
Any indemnity in this deed is a continuing obligation, independent of the party’s other obligations under this deed and continues after this deed ends. It is not necessary for the party indemnified to incur expense or make payment before enforcing a right of indemnity under this deed.
24.11 Rights and obligations are unaffected
Rights given to the Note Trustee under this deed and RE’s liabilities under it are not affected by anything which might otherwise affect them at law.
24.12 Inconsistent law
To the extent permitted by law, this deed prevails to the extent it is inconsistent with any law.
24.13 Supervening legislation
Any present or future legislation which operates to vary the obligations of RE or the Note Trustee in connection with this deed with the result that RE’s or the Note Trustee’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.
24.14 Consistency with section 283DB(1) of the Corporations Act
The provisions of this deed (including clauses 11.2 (“What RE agrees to pay”), 11.3 (“Indemnity by RE”) and 11.5 (“Items included in loss, liability and
Costs”)) are (despite their terms) to be interpreted in their application to the Note Trustee so as to not give rise to the operation of section 283DB(1) of the
Corporations Act.
24.15 Time of the essence
Time is of the essence in this deed in respect of an obligation of RE to pay money.
24.16 Counterparts
This deed may consist of a number of copies, each signed by one or more parties to the agreement. If so, the signed copies are treated as making up the one document.
24.17 Governing law
This deed is governed by the law in force in Victoria.
24.18 Jurisdiction
RE submits to the non-exclusive jurisdiction of the courts of Victoria and courts of appeal from them. RE waives any right it has to object to an action being brought in those courts including by claiming that the action has been brought in an inconvenient forum or that those courts do not have jurisdiction.
25 Interpretation
25.1 Definitions
The meanings given to terms or expressions in Schedule 4 apply in this deed (including the Terms of Issue) unless the contrary intention appears.
25.2 References to certain general terms
Unless the contrary intention appears, a reference in this deed to:
(a) a group of persons is a reference to any two or more of them jointly and to each of them individually;
(b) an agreement, representation or warranty in favour of two or more persons is for the benefit of them jointly and each of them individually;
(c) anything (including an amount) is a reference to the whole and each part of it;
(d) a document (including this deed) includes any variation or replacement of it;
(e) law means common law, principles of equity, and laws made by parliament (and laws made by parliament include State, Territory and Commonwealth laws and regulations and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them);
(f) an accounting term is a reference to that term as it is used in accounting standards under the Corporations Act, or, if not inconsistent with those standards, in accounting principles and practices generally accepted in Australia;
(g) Australian dollars, dollars, $ or A$ is a reference to the lawful currency of Australia;
(h) a time of day is a reference to Melbourne time;
(i) the word “person” includes an individual, a firm, a body corporate, an unincorporated association and an authority;
(j) a particular person includes a reference to the person’s executors, administrators, successors, substitutes (including persons taking by novation) and assigns;
(k) the words “including”, “for example” or “such as” when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind;
(l) registration or recording includes inscription, and register and record have a corresponding meaning;
(m) transfer includes transmission; and (n) this deed includes the Terms of Issue.
25.3 Number
In this deed, the singular includes the plural and vice versa.
25.4 Headings
In this deed, headings (including those in brackets at the beginning of
paragraphs) are for convenience only and do not affect the interpretation of this deed.
25.5 References to Note Trustee
In this deed, except where expressly provided to the contrary:
(a) a reference to the Note Trustee is a reference to the Note Trustee in its capacity as trustee of the Note Trust only, and in no other capacity;
(b) a reference to the undertaking, assets, business, money or any other thing of or in relation to the Note Trustee is a reference to such undertaking, assets, business, money or other thing of or in relation to the Note Trustee only in its capacity as trustee of the Note Trust, and in no other capacity; and
(c) in the definition of “Insolvent”, to the extent that the definition applies to the Note Trustee, references are to the Note Trustee in its capacity as trustee of the Note Trust or personally, but not the Note Trustee in its capacity as trustee of any other trust.
25.6 References to RE
In this deed, except where expressly provided to the contrary:
(a) a reference to RE is a reference to RE in its capacity as responsible entity of the Spark Infrastructure Trust only, and in no other capacity;
(b) a reference to the undertaking, assets, business, money or any other thing of or in relation to RE is a reference to such undertaking, assets,
business, money or other thing of or in relation to RE only in its capacity as responsible entity of the Spark Infrastructure Trust, and in no other capacity;
(c) in the definition of “Insolvent”, to the extent that the definition applies to RE, references are to RE in its capacity as responsible entity of the Spark Infrastructure Trust, but not RE in its capacity as trustee or responsible entity of any other trust; and
(d) a reference to RE includes:
(i) until the Spark Infrastructure Trust is registered with ASIC as a managed investment scheme, Spark Infrastructure RE Limited (ACN 114 940 984) or any replacement trustee appointed by it;
and
(ii) from the time the Spark Infrastructure Trust is registered with ASIC as a managed investment scheme, the company which is registered with ASIC as the responsible entity for the Spark Infrastructure Trust under the Corporations Act.
25.7 References to outstanding Notes
A Note is to be regarded as remaining outstanding unless:
(a) it has been redeemed in accordance with this deed; or
(b) the date for its redemption in accordance with this deed has occurred and the principal amount and accrued interest in respect of the Note have been duly paid by RE and have not been repaid to RE.
EXECUTED as a deed