The QCA’s position Clause Samples
The QCA’s position. The QCA has stated:
The QCA’s position. The QCA has stated:
a) The form of the template TD and the SUHD should be able to be amended to permit third- party finance by negotiation between the parties to a SUFA transaction54;
b) The form of the template TD and the SUHD should be able to be amended to permit third- party finance by binding dispute resolution should the negotiation prove unsuccessful55;
c) The 2013 SUFA DAAU arrangements should allow for third party financing56; and
d) A Financing Side Deed should be included as one of the SUFA documents57.
The QCA’s position. The QCA has stated:
a) The potential for discrimination in respect of asset maintenance (is) to be considered as part of the broader condition based assessment approach under the 2014 DAU process49;
b) The 2013 SUFA DAAU should not place restrictions on who can participate in funding a SUFA arrangement50; and
c) Potential issues of cost-shifting and other discriminatory behaviour (are) to be considered as part of the 2014 DAU process51.
The QCA’s position. The QCA has proposed changes to address the workability of third party ▇▇▇▇▇▇▇▇▇ that would allow the Trustee to:
a) obtain finance itself;
b) issue units to third party finance entities or to create a financing trust above the Trust; and
The QCA’s position. The QCA has stated that:
a) The 2013 SUFA DAAU documents should be amended to include the Specific Security Agreement to allow for security to be taken over the cash flows33;
b) The Specific Security Agreement acceptable to it is the form included in the DD34;
c) The 2013 SUFA DAAU EISL should be amended to address three specified direction to pay matters35;
d) The direction to pay arrangements acceptable to the QCA are included in the SUFA documents that form part of the DD36;
e) The Trustee’s obligation to withhold distributions if so required by the ordinary unit holder should be removed from the 2013 SUFA DAAU documents37;
f) The rent adjustment mechanism is an acceptable set-off arrangement in relation to rental streams38;
g) Set-off for immaterial non-rental amounts should be excluded from the SUFA documents39;
h) The EISL should be amended so that there is no set-off for non-rent material liabilities, with PUHs responsible for ‘funding the SUFA infrastructure’s share of any material liability, such as a tax liability’40; and
i) The EISL should be amended to place an obligation on Aurizon Network to seek a change to the regulatory tariff to account for the amount of ‘liability attributable to the SUFA infrastructure’41.
The QCA’s position. The QCA has proposed three changes24 to the SUFA documentation, namely:
a) upon agreement of the template SUFA documents, Aurizon Network is to seek statutory severance for the infrastructure assets built under a SUFA;
b) once statutory severance is obtained Aurizon Network is to obtain an ‘administratively binding advice from the ATO in respect of the SUFA structure’; and
c) once users agree to fund a SUFA, Aurizon Network is to assist in the application for PBRs from the ATO in respect of that proposed SUFA transaction. The QCA also proposes three ▇▇▇▇▇▇▇▇▇ to the SUFA documentation, namely:
d) modification of the tax indemnity that is in favour of Aurizon Network26;
e) modification of the Trustee’s rights under the TD should the Trust become a managed investment scheme27; and
f) a set of tax-related amendments to the SUHD28. 24 PP, section 13.1 of summary box 25 PP, section 13.2, section 13.3, section 13.4 26 TS, section 2.4(e)(iv) 27 PP, section 13.3 of summary box 28 PP, section 13.4 of summary box