EXHIBIT 10.25
MALLESONS STEPHEN JAQUES
Second Amendment and Restatement Agreement - TLA
Senior Funding Agreement
Dated
BURNS, PHILP & COMPANY LIMITED (ABN 65 000 000 359)
THE ENTITIES LISTED IN SCHEDULE 1
CREDIT SUISSE FIRST BOSTON, MELBOURNE BRANCH
(ABN 17 061 700 712)
BOS INTERNATIONAL (AUSTRALIA) LIMITED (ABN 23 066 601 250)
CREDIT AGRICOLE INDOSUEZ AUSTRALIA LIMITED (ABN 32 002 540 409)
CREDIT SUISSE FIRST BOSTON, MELBOURNE BRANCH (ABN 17 061 700 712)
THE FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 2
MALLESONS STEPHEN JAQUES
Level 28
Rialto
525 Collins Street
Melbourne Vic 3000
T +61 3 9643 4000
F +61 3 9643 5999
Email mel@mallesons.com
DX 101 Melbourne
www.mallesons.com
6340711_2
SECOND AMENDMENT AND RESTATEMENT AGREEMENT - TLA SENIOR
FUNDING AGREEMENT
Contents
DETAILS 1
GENERAL TERMS 3
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1 AMENDMENTS 3
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2 CONFIRMATION AND ACKNOWLEDGEMENT 3
2.1 Confirmation 3
2.2 Transaction Document 3
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3 GENERAL 3
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4 GOVERNING LAW 3
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5 INTERPRETATION 3
5.1 Definitions 3
5.2 Interpretation 4
SIGNING PAGE 7
ANNEXURE A 12
(C)Mallesons Stephen Jaques SECOND AMENDMENT and Restatement Agreement - i
second amendment and TLA Senior Funding AGREEMENT 11 March 2003
SECOND AMENDMENT AND RESTATEMENT AGREEMENT - TLA SENIOR FUNDING AGREEMENT
Details
INTERPRETATION - definitions are at the end of the General Terms
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PARTIES PARENT, INITIAL BORROWER, LEAD ARRANGER AND UNDERWRITER,
CO-LEAD ARRANGER AND UNDERWRITER, FACILITY AGENT AND INITIAL
SUBSCRIBER
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PARENT Name BURNS, PHILP & COMPANY LIMITED (ABN 65 000 000 359)
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INITIAL BORROWER Name THE ENTITIES LISTED IN SCHEDULE 1
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LEAD ARRANGER Name CREDIT SUISSE FIRST BOSTON, MELBOURNE BRANCH (ABN 17
AND 061 700 712)
UNDERWRITER
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CO-LEAD Name BOS INTERNATIONAL (AUSTRALIA) LIMITED (ABN 23 066 601
ARRANGER AND 250) AND CREDIT AGRICOLE INDOSUEZ AUSTRALIA LIMITED
UNDERWRITER (ABN 32 002 540 409)
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FACILITY AGENT Name CREDIT SUISSE FIRST BOSTON, MELBOURNE BRANCH (ABN 17
061 700 712)
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INITIAL Name THE FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 2
SUBSCRIBER
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RECITALS 1. BPC1, the Parent, the Lead Arranger and Underwriter,
Co-Lead Arranger and Underwriter and the Facility Agent
executed the Original Document.
2. The parties to this document intend to amend and restate
the Original Document on and from the Effective Date.
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EFFECTIVE DATE The date of this agreement.
(clause 5)
(C)Mallesons Stephen Jaques Second Amendment and Restatement Agreement 1
second amendment and - TLA Senior Funding Agreement 11 March
restatement agreement - tla 2003
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ORIGINAL TLA Senior Funding Agreement dated 16 January 2003 between
DOCUMENT Burns, Philp & Company Limited (ABN 65 000 000 359), the
(clause 5) entities listed in Schedule 1 to that document, Credit Suisse
First Boston, Melbourne Branch (ABN 17 061 700 712), BOS
International (Australia) Limited (ABN 23 066 601 250), Credit
Agricole Indosuez Australia Limited (ABN 32 002 540 409),
Credit Suisse First Boston, Melbourne Branch (ABN 17 061 700
712) and the financial institutions listed in schedule 2 to
that document as amended and restated on 21 February 2003.
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GOVERNING LAW New South Wales.
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DATE OF See Signing page
AMENDING
AGREEMENT
(C)Mallesons Stephen Jaques Second Amendment and Restatement Agreement 2
second amendment and - TLA Senior Funding Agreement 11 March
2003
SECOND AMENDMENT AND RESTATEMENT AGREEMENT - TLA SENIOR FUNDING AGREEMENT
General terms
1 AMENDMENTS
As and from the Effective Date, the Original Document is amended and
restated as set out in the copy of the Original Document attached as
Annexure A to this agreement.
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2 CONFIRMATION AND ACKNOWLEDGEMENT
2.1 CONFIRMATION
Each party confirms that, other than as provided for in clause 1
("Amendments"), the Original Document remains in full force and effect.
2.2 TRANSACTION DOCUMENT
The parties acknowledge that this agreement is a New Transaction
Document.
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3 GENERAL
Clauses 16 ("NOTICES"), clause 17 ("AMENDMENTS AND WAIVER") and clause
18 ("GENERAL") apply mutatis mutandis to this agreement as if they were
fully set out in this agreement.
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4 GOVERNING LAW
This agreement is governed by the law in force in the place specified
in the Details and each party submits to the non-exclusive jurisdiction
of the courts of that place.
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5 INTERPRETATION
5.1 DEFINITIONS
These meanings apply mutatis mutandis unless the contrary intention
appears:
EFFECTIVE DATE means the date so described in the "Details" section of
this agreement.
(C)Mallesons Stephen Jaques Second Amendment and Restatement Agreement 3
second amendment and - TLA Senior Funding Agreement 11 March
2003
ORIGINAL DOCUMENT means the document so described in the "Details"
section of this agreement.
5.2 INTERPRETATION
Terms defined in the Original Document have the same meaning in this
agreement.
EXECUTED as an agreement.
(C)Mallesons Stephen Jaques Second Amendment and Restatement Agreement 4
second amendment and - TLA Senior Funding Agreement 11 March
2003
SIGNING PAGE
DATED: 4 March 2003
----------------------
SIGNED for BURNS, PHILP &
COMPANY LIMITED under power of /s/ Helen Golding
attorney in the presence of: -----------------------------------------
Signature of attorney
/s/ Elizabeth Vuong Helen Golding
- --------------------------------- -----------------------------------------
Signature of witness Name
Elizabeth Vuong 20 February 2003
- --------------------------------- -----------------------------------------
Name Date of power of attorney
INITIAL BORROWERS
SIGNED for BURNS PHILP TREASURY
(AUSTRALIA) LIMITED under power of /s/ Helen Golding
attorney in the presence of: -----------------------------------------
Signature of attorney
/s/ Elizabeth Vuong Helen Golding
- -------------------------------- -----------------------------------------
Signature of witness Name
Elizabeth Vuong 20 February 2003
- -------------------------------- -----------------------------------------
Name Date of power of attorney
SIGNED for BURNS PHILP
DEUTSCHLAND GMBH under power of /s/ Helen Golding
attorney in the presence of: -----------------------------------------
Signature of attorney
/s/ Elizabeth Vuong Helen Golding
- -------------------------------- -----------------------------------------
Signature of witness Name
Elizabeth Vuong 19 February 2003
- -------------------------------- -----------------------------------------
Name Date of power of attorney
(C)Mallesons Stephen Jaques Second Amendment and Restatement Agreement 7
second amendment and - TLA Senior Funding Agreement 11 March
2003
SIGNED for BURNS PHILP INC. under /s/ Helen Golding
power of attorney in the presence of: -----------------------------------------
Signature of attorney
/s/ Elizabeth Vuong Helen Golding
- -------------------------------- -----------------------------------------
Signature of witness Name
Elizabeth Vuong 20 February 2003
- -------------------------------- -----------------------------------------
Name Date of power of attorney
SIGNED for BURNS PHILP (NEW
ZEALAND) LIMITED under power of /s/ Helen Golding
attorney in the presence of: -----------------------------------------
Signature of attorney
/s/ Elizabeth Vuong Helen Golding
- -------------------------------- -----------------------------------------
Signature of witness Name
Elizabeth Vuong 20 February 2003
- -------------------------------- -----------------------------------------
Name Date of power of attorney
SIGNED for BURNS PHILP FOOD
LIMITED under power of attorney /s/ Helen Golding
in the presence of: -----------------------------------------
Signature of attorney
/s/ Elizabeth Vuong Helen Golding
- -------------------------------- -----------------------------------------
Signature of witness Name
Elizabeth Vuong 20 February 2003
- -------------------------------- -----------------------------------------
Name Date of power of attorney
(C)Mallesons Stephen Jaques Second Amendment and Restatement Agreement 8
second amendment and - TLA Senior Funding Agreement 11 March
2003
SIGNED for BPC1 PTY LIMITED under /s/ Helen Golding
power of attorney in the presence of: -----------------------------------------
Signature of attorney
/s/ Elizabeth Vuong Helen Golding
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Signature of witness Name
Elizabeth Vuong 20 February 2003
- -------------------------------- -----------------------------------------
Name Date of power of attorney
ARRANGERS
SIGNED for CREDIT SUISSE FIRST
BOSTON, MELBOURNE BRANCH by its
authorised signatories in the /s/ Michael J. Tierney
presence of: -----------------------------------------
Signature of authorised signatory
/s/ Glenn Lovell Michael J. Tierney
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Signature of witness Name
Glenn Lovell /s/ Lyndon Hsu
- -------------------------------- -----------------------------------------
Name Signature of authorised signatory
Lyndon Hsu
-----------------------------------------
Name
SIGNED for BOS INTERNATIONAL
(AUSTRALIA) LIMITED under power of /s/ Jeffrey Clark
attorney in the presence of: -----------------------------------------
Signature of attorney
/s/ Glenn Lovell Jeffrey Clark
- -------------------------------- -----------------------------------------
Signature of witness Name
Glenn Lovell 3 March 2003
- -------------------------------- -----------------------------------------
Name Date of power of attorney
(C)Mallesons Stephen Jaques Second Amendment and Restatement Agreement 9
second amendment and - TLA Senior Funding Agreement 11 March
2003
SIGNED for CREDIT AGRICOLE
INDOSUEZ AUSTRALIA LIMITED
under power of attorney in the /s/ Jeffrey Clark
presence of: -----------------------------------------
Signature of attorney
/s/ Glenn Lovell Jeffrey Clark
- -------------------------------- -----------------------------------------
Signature of witness Name
Glenn Lovell 4 March 2003
- -------------------------------- -----------------------------------------
Name Date of power of attorney
FACILITY AGENT
SIGNED for CREDIT SUISSE FIRST
BOSTON, MELBOURNE BRANCH by its
authorised signatories in the /s/ Michael J. Tierney
presence of: -----------------------------------------
Signature of authorised signatory
/s/ Glenn Lovell Michael J. Tierney
- -------------------------------- -----------------------------------------
Signature of witness Name
Glenn Lovell /s/ Lyndon Hsu
- -------------------------------- -----------------------------------------
Name Signature of authorised signatory
Lyndon Hsu
-----------------------------------------
Name
(C)Mallesons Stephen Jaques Second Amendment and Restatement Agreement 10
second amendment and - TLA Senior Funding Agreement 11 March
2003
INITIAL SUBSCRIBERS
SIGNED for CREDIT SUISSE FIRST
BOSTON, MELBOURNE BRANCH by its
authorised signatories in the /s/ Michael J. Tierney
presence of: -----------------------------------------
Signature of authorised signatory
/s/ Glenn Lovell Michael J. Tierney
- -------------------------------- -----------------------------------------
Signature of witness Name
Glenn Lovell /s/ Lyndon Hsu
- -------------------------------- -----------------------------------------
Name Signature of authorised signatory
Lyndon Hsu
-----------------------------------------
Name
SIGNED for BOS INTERNATIONAL
(AUSTRALIA) LIMITED under power of /s/ Jeffrey Clark
attorney in the presence of: -----------------------------------------
Signature of attorney
/s/ Glenn Lovell Jeffrey Clark
- -------------------------------- -----------------------------------------
Signature of witness Name
Glenn Lovell 3 March 2003
- -------------------------------- -----------------------------------------
Name Date of power of attorney
SIGNED for CREDIT AGRICOLE
INDOSUEZ AUSTRALIA LIMITED
under power of attorney in the /s/ Jeffrey Clark
presence of: -----------------------------------------
Signature of attorney
/s/ Glenn Lovell Jeffrey Clark
- ---------------------------------- -----------------------------------------
Signature of witness Name
Glenn Lovell 4 March 2003
- ---------------------------------- ---------------------------------
Name Date of power of attorney
(C)Mallesons Stephen Jaques Second Amendment and Restatement Agreement 11
second amendment and - TLA Senior Funding Agreement 11 March
2003
Annexure A
(C)Mallesons Stephen Jaques Second Amendment and Restatement Agreement 12
second amendment and - TLA Senior Funding Agreement 11 March 2003
MALLESONS STEPHEN JAQUES
TLA Senior Funding Agreement
Dated 16 January 2003
BURNS, PHILP & COMPANY LIMITED (ABN 65 000 000 359)
THE ENTITIES LISTED IN SCHEDULE 1
CREDIT SUISSE FIRST BOSTON, MELBOURNE BRANCH (ABN 17 061 700 712)
BOS INTERNATIONAL (AUSTRALIA) LIMITED (ABN 23 066 601 250)
CREDIT AGRICOLE INDOSUEZ AUSTRALIA LIMITED (ABN 32 002 540 409)
CREDIT SUISSE FIRST BOSTON, MELBOURNE BRANCH (ABN 17 061 700 712)
THE FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 2
MALLESONS STEPHEN JAQUES
Level 28
Rialto
525 Collins Street
Melbourne Vic 3000
T +61 3 9643 4000
F +61 3 9643 5999
Email mel@mallesons.com
DX 101 Melbourne
www.mallesons.com
6336410_4
CONTENTS
1. INTERPRETATION 1
1.1 Definitions 1
1.2 Rules for interpreting this document, the Facility Agreements and
Debenture Trust Deed 35
1.3 Business Days 36
1.4 Subscriber Affiliates 36
1.5 Rights and obligations of the Subscribers and the Facility Agent 37
1.6 Parent to represent Group Parties 38
1.7 Changes in GAAP 38
2. CONDITIONS PRECEDENT TO ALL FACILITIES 38
2.1 Conditions precedent 38
2.2 Prepositioning of funds for the first drawdown 38
3. PAYMENTS 39
3.1 How payments must be made 39
3.2 Facility Agent must distribute receipts 39
3.3 Facility Agent only obliged to distribute actual receipts 39
3.4 Effect of payment to Facility Agent 40
3.5 Application of money 40
3.6 Deductions and withholdings by Group Parties 41
3.7 Deductions and withholdings by or affecting the Facility Agent or a
Subscriber 41
3.8 Currency of payments 42
3.9 Currency indemnity 42
3.10 Repayment following exchange rate fluctuations 43
3.11 Default interest 44
3.12 Group Parties to notify the Facility Agent of payments 44
3.13 Representation by the Subscribers 44
4. REPRESENTATIONS AND WARRANTIES 44
4.1 Legal representations and warranties 44
4.2 Additional representations and warranties by the Parent 47
4.3 US specific representations and warranties 49
4.4 Repetition of representations and warranties 50
4.5 Reliance on representations and warranties 50
4.6 No representations to the Group Parties 50
4.7 Acknowledgment of foreign currency risks 50
5. UNDERTAKINGS 51
5.1 General undertakings 51
5.2 Reports and information 53
- --------------------------
TLA Senior Funding Agreement - as amended to 4 March
5.3 Negative undertakings 55
5.4 Financial undertakings 62
5.5 Hedging arrangements 64
5.6 New Group Security Providers 65
5.7 Introduction of a new Borrower 67
5.8 Excluded Subsidiaries 67
5.9 Underwriters' fees 68
5.10 Facility Agent's fee and expenses 68
5.11 Negotiation of bilateral facilities 68
5.12 Offer Undertakings 69
5.13 Supplemental Securities 71
6. DELETED 71
7. ASSET DISPOSALS AND ACQUISITIONS 71
7.1 Permitted asset disposals outside Group Members 71
7.2 Permitted asset disposals to Group Members 72
7.3 Permitted business acquisitions 73
7.4 Investment Account 75
7.5 Application of Repayment Amounts 76
8. DEFAULT 77
8.1 Events of Default 77
8.2 Consequences of an Event of Default 80
8.3 Review Event 80
8.4 High Yield Note Indenture 81
9. INCREASED COSTS AND CHANGE OF LAW 81
9.1 Increased costs 81
9.2 Indirect cost, reduction or payment 83
9.3 Notice of change of law 83
9.4 Termination and prepayment after change of law 83
10. INDEMNITIES 84
10.1 General indemnity 84
10.2 GST 85
10.3 Waiver processing fee 85
10.4 General costs 85
11. FACILITY AGENT 86
11.1 Appointment of Facility Agent 86
11.2 Nature of relationship 86
11.3 Instructions from Majority of Subscribers 86
11.4 Information to Subscribers 87
11.5 Events of Default 88
ii
11.6 Performance of obligations of Facility Agent 88
11.7 Facility Agent may rely on certain matters 89
11.8 Facility Agent may assume certain matters 89
11.9 Offices of Subscribers 89
11.10 Identity of Subscribers 89
11.11 Facility Agent not responsible for monitoring 89
11.12 Disclosure of information concerning the Group 90
11.13 Group not concerned with authority of Facility Agent 90
11.14 Receipts and business activities of Facility Agent 90
11.15 Facility Agent as Subscriber 90
11.16 Protection of Facility Agent 90
11.17 Facility Agent indemnified by Subscribers 91
11.18 Change of Facility Agent 91
11.19 Dealings with Facility Agent 92
11.20 Facility Agent may instruct Security Trustee 93
12. REDISTRIBUTION OF PAYMENTS BETWEEN SUBSCRIBERS 93
12.1 Notice of direct receipts 93
12.2 Redistribution of excess payments 93
12.3 Reimbursement following clawback 93
12.4 Borrowers remain liable 94
12.5 Failure of all Subscribers to join in litigation 94
12.6 Calculation of foreign currency amounts 94
13. ASSIGNMENTS AND SUBSTITUTIONS 94
13.1 Assignment by Group Parties 94
13.2 Assignment by Subscriber 96
13.3 Substitution by Subscriber 96
13.4 Procedure for substitution 97
13.5 Consequences of substitution 98
13.6 Subparticipation 99
13.7 No deductions and withholdings or increased costs in certain
circumstances 99
13.8 Subscriber to bear costs 100
13.9 Reduction of Commitments 100
14. FACILITY AGENT TO HOLD DEBENTURE STOCK FOR SUBSCRIBERS AND OTHERS 100
14.1 Undertaking to pay Facility Agent 100
14.2 Obligations to rank as Priority 1 Debenture Stockholder's Debt 101
14.3 Facility Agent to hold payment undertaking and Debenture Stock on
trust 101
14.4 Waiver of annual security updates 101
15. CONFIDENTIALITY 101
15.1 General 101
15.2 Disclosure to assignees or substitutes 102
iii
16. NOTICES 103
16.1 How to give a notice 103
16.2 When a notice is given 103
16.3 Address for notices 103
16.4 Reliance on notices 104
17. AMENDMENTS AND WAIVERS 104
17.1 Agreement of Facility Agent 104
17.2 Agreement of Majority of Subscribers 105
17.3 Agreement of all Subscribers 105
17.4 Waiver generally 105
18. GENERAL 106
18.1 Governing law 106
18.2 Waiver of immunity 106
18.3 Waiver of jury trial 106
18.4 Liability for Taxes and expenses 107
18.5 Giving effect to the Transaction Documents 107
18.6 Operation of the Transaction Documents 107
18.7 Operation of indemnities 107
18.8 Consents 107
18.9 Statements by the Facility Agent 108
18.10 Set-off 108
18.11 No merger 108
18.12 Exclusion of contrary legislation 108
18.13 Counterparts 108
18.14 Attorneys 109
18.15 Parties 109
Schedules
1. BORROWERS 110
2. INITIAL SUBSCRIBERS 111
3-1 CONDITIONS PRECEDENT 112
3-2 CERTIFICATE 118
4 NEW SECURITY DOCUMENTS 120
5. EXISTING ENCUMBRANCES 121
iv
6. EXISTING JOINT VENTURES 122
7. EXISTING TREASURY TRANSACTIONS 123
8. US OBLIGORS 125
9. NON-CORE ASSETS 127
10. NOT USED 128
11. DISCLOSURES FOR THE PURPOSES OF CLAUSES 4.1 AND 4.2 129
12. SUBSTITUTION CERTIFICATE 130
13. DELETED 131
14. IA WITHDRAWAL REQUEST 136
v
TLA SENIOR FUNDING AGREEMENT
DATE 16 January 2003
PARTIES
BURNS, PHILP & COMPANY LIMITED ABN 65 000 000 359 (the "PARENT")
THE ENTITIES LISTED IN SCHEDULE 1 (each an "INITIAL BORROWER")
CREDIT SUISSE FIRST BOSTON, MELBOURNE BRANCH ABN 17 061 700 712 (the
"LEAD ARRANGER AND UNDERWRITER ")
BOS INTERNATIONAL (AUSTRALIA) LIMITED ABN 23 066 601 250 and CREDIT
AGRICOLE INDOSUEZ AUSTRALIA LIMITED ABN 32 002 540 409) (each a
"CO-LEAD ARRANGER AND UNDERWRITER")
CREDIT SUISSE FIRST BOSTON, MELBOURNE BRANCH ABN 17 061 700 712 (the
"FACILITY AGENT")
THE FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 2 (each an "INITIAL
SUBSCRIBER")
RECITALS
A. The Parent and various Subsidiaries have raised financial accommodation
from a range of financiers. That financial accommodation includes the
financial accommodation which is governed by the Existing Senior Loan
Agreements.
B. BPC1 has made an offer to acquire all of the issued shares in Goodman
and proposes to acquire those shares in accordance with the Bid
Documents.
C. The Subscribers are prepared to subscribe for and pay up any unpaid
amount of Debentures, the proceeds of which are to be applied for an
Eligible Purpose, on the terms set out in this document and the
Facility Agreements.
D. It is intended that the Securities that have already been granted to
the Security Trustee and the New Security Documents secure amounts
owing under this document and the Facility Agreements.
OPERATIVE PROVISIONS
1. INTERPRETATION
1.1 DEFINITIONS
The following definitions apply in this document.
"ACCOUNTS" means, for a period, a profit and loss statement and
statement of cashflows for that period, and a balance sheet as at the
end of that period, together with any notes to them and any statement
or report (including any directors' declaration and any auditors'
report) that is required by applicable law to be prepared in relation
to them.
1.
"AFFILIATE" means, when used with respect to a specified person,
another person that directly or indirectly through one or more
intermediaries controls, directly or indirectly, the power to direct or
cause the direction of the management or policies of the person
specified, whether through the ownership of voting securities, by
contract or otherwise or is controlled by or is under common control
with the person specified.
"AGREED HEDGING PROGRAM" means the Parent's interest rate and foreign
exchange risk management program for Group Members as agreed by the
Parent and the Facility Agent (acting on the instructions of a Majority
of Subscribers) from time to time.
"ARRANGER" means each of the Lead Arranger and Underwriter and each
Co-Lead Arranger and Underwriter.
"ASSOCIATE" means:
(a) each Existing Joint Venture; and
(b) any other corporation, partnership, joint venture, trust or
other entity that the Parent is required by GAAP to recognise
in its Accounts on an equity accounting basis.
"ASSOCIATE LIMIT" means the aggregate of:
(a) AUD40,000,000; and
(b) 5% of EBITDA of the Group for the period of 12 months ending
on the most recent 30 June or 31 December.
"AUD BANK BILL RATE" means, for a period:
(a) the rate, expressed as a yield per cent per annum (rounded up
(if necessary) to 4 decimal places) that is quoted as the
average bid rate on the Reuters monitor system page "BBSY" (or
any page that replaces that page) at about 10.30 am (Melbourne
time) on the first day of that period, for bank-accepted bills
of exchange that have a tenor equal to (or no more than 2
Business Days shorter or longer than) that period; or
(b) if no average bid rate is published in accordance with
paragraph (a), the bid rate available to the Facility Agent at
about 11.00 am (Melbourne time) on that day, as conclusively
determined in good faith by the Facility Agent, for
bank-accepted bills of exchange that have the tenor described
in that paragraph.
"AUD BASE RATE" means:
(a) for a period for which a rate is normally quoted on the
Reuters monitor system page "BBSY" (or any page that replaces
that page), or for a period that is no more than 2 Business
Days shorter or longer than such a period - the relevant AUD
Bank Bill Rate; and
(b) for any other period - the rate that the Facility Agent
calculates by straight-line interpolation in accordance with
market practice.
2.
"AUD CASH RATE" means, on any day, the rate quoted on that day as the
official cash rate target shown on the Reuters monitor system page "RBA
27".
"AUD EQUIVALENT" means:
(a) for an amount denominated in Australian Dollars, that amount;
and
(b) for an amount denominated in any other currency on a day, the
amount of Australian Dollars that would purchase that amount
in that currency at the relevant Spot Rate for that day.
"AUD FACILITY CAP" means, on any day:
(a) the sum of the Facility Commitments as at the date of this
document (ie AUD 1,400,000,000);
less:
(b) the sum of:
(i) the AUD Equivalent of any repayment that is made on
or before that date under the Term A Facility
Agreement (calculated, for each repayment, at the
Spot Rate that applied on the date of the repayment);
and
(ii) the amount (if any) by which the Parent has reduced
the Commitments under clause 8 of the Revolving
Facility Agreement on or before that date.
"AUSTRALIAN DOLLAR" and "AUD" mean the lawful currency of Australia.
"AUTHORISATION" means:
(a) an authorisation, permit, licence, consent, declaration,
exemption, notarisation, approval or waiver, however it is
described; and
(b) in relation to anything that will be prohibited or restricted
by law if a Government Agency acts in any way within a
specified period, the expiry of that period without that
action being taken,
including any renewal or amendment.
"AUTHORISED REPRESENTATIVE" means:
(a) for an Arranger or a Subscriber:
(i) a company secretary or director, or an employee whose
title includes the word "manager", "director" or
"President";
(ii) a person who is acting temporarily in one of those
positions; or
3.
(iii) a person, or a person holding a position, nominated
by it to the Parent and the Facility Agent;
(b) for the Facility Agent:
(i) a company secretary or director, or an employee whose
title includes the word "manager", "director" or
"President";
(ii) a person who is acting temporarily in one of those
positions; or
(iii) a person, or a person holding a position, nominated
by it to the Parent and each Subscriber; and
(c) for a Group Party, a person nominated by the Parent to the
Facility Agent in a notice that is accompanied by, and
certifies the correctness of, a copy of the signature of that
person.
"BANKING DAY" means, in relation to a place, a day (other than a
Saturday, Sunday or public holiday) on which banks are open for general
banking business, and for dealings in foreign exchange and foreign
currency deposits, in that place.
"BASE RATE" means:
(a) for a Funding Portion or other amount denominated in
Australian Dollars, the AUD Base Rate;
(b) for a Funding Portion or other amount denominated in Canadian
Dollars, the CAD Base Rate;
(c) for a Funding Portion or other amount denominated in Euro, the
Euro Base Rate;
(d) for a Funding Portion or other amount denominated in New
Zealand Dollars, the NZD Base Rate; and
(e) for a Funding Portion or other amount denominated in United
States Dollars, the USD Base Rate.
"BID DOCUMENTS" means the offer document by BPC1, to purchase all the
ordinary shares in Goodman.
"BORROWER" means an Initial Borrower or a New Borrower.
"BPC1" means BPC1 Pty Limited (ABN 45 101 665 918).
"BP US" means Burns Philp Inc, a Delaware corporation.
4.
"BRIDGE FACILITY" means the NZ $250,000,000 unsecured subordinated
bridge facility provided under the Capital Notes Bridge Facility
Agreement.
"BUSINESS DAY" means:
(a) for determining when a notice, consent or other communication
is given, a day that is not a Saturday, Sunday or public
holiday in the place to which the notice, consent or other
communication is sent;
(b) for any other purpose involving Euro (including in relation to
a payment to be made in, or a transaction or calculation
involving, Euro), a day that is a TARGET Business Day;
(c) for any other purpose involving any other currency (including
in relation to a payment to be made in, or a transaction or
calculation involving, that currency), a day (other than a
Saturday, Sunday or public holiday) on which banks and foreign
exchange markets are open for general banking business:
(i) for Australian Dollars, in Sydney and Melbourne;
(ii) for Canadian Dollars, in Toronto;
(iii) for New Zealand Dollars, in Auckland and Wellington;
(iv) for United States Dollars, in New York and London;
and
(d) for any other purpose a day (other than a Saturday, Sunday or
public holiday) on which banks are open for general banking
business in Melbourne and Sydney.
"CAD BASE RATE" means:
(a) for a period for which a rate is normally quoted on the
Reuters monitor system page "CDOR" (or any page that replaces
that page), or for a period that is no more than 2 Business
Days shorter or longer than such a period - the relevant CDOR;
and
(b) for any other period - the rate that the Facility Agent
calculates by straight-line interpolation in accordance with
market practice.
"CALCULATION DATE" means each Quarter Date each year commencing on the
first Quarter Date after Goodman becomes a Wholly-Owned Subsidiary of
the Parent for at least one Quarter Period or, if earlier, 30 September
2003.
"CANADIAN DOLLAR" and "CAD" mean the lawful currency of Canada.
"CAPEX " means actual expenditure by a Group Member for equipment,
fixed assets, real property or improvements, or for replacements or
substitutions therefore or additions thereto, that would be treated as
capital expenditure by GAAP.
"CAPITAL NOTES" means the unsecured subordinated capital notes having
an aggregate face value of not more than NZ$300,000,000 to be issued by
Burns Philp Finance New Zealand
5.
Limited pursuant to the Capital Notes Trust Deed or any other
unsecured, subordinated debt instrument issued by a Group Member which
ranks in priority after the High Yield Notes and New High Yield Notes.
"CAPITAL NOTES BRIDGE FACILITY AGREEMENT" means the subordinated bridge
facility agreement dated 16 January 2003 between BPC1, the Parent, the
financiers named therein and the agent named therein.
"CAPITAL NOTES TRUST DEED" means the trust deed referred to in the
summary terms and conditions (attached as schedule 1 to the Capital
Notes Underwriting Agreement).
"CAPITAL NOTES UNDERWRITING AGREEMENT" means the agreement dated 12
December 2002 between First NZ Capital Securities (as underwriter,
co-lead manager and organising broker), Burns Philp Finance New Zealand
Limited, the Parent and BPC1 and any other party that accedes to that
agreement as an underwriter or co-lead manager.
"CASH RESTRUCTURING COSTS" means Restructuring Costs expended in cash.
"CDOR" means, for a period:
(a) the rate, expressed as a yield per cent per annum (rounded up
(if necessary) to 4 decimal places) that is quoted as the
average buying rate on the Reuters monitor system page "CDOR"
(or any page that replaces that page) at about 10.00 am
(Toronto time) on the first day of that period for banker's
acceptances that have a tenor equal to (or no more than 2
Business Days shorter or longer than) that period; or
(b) if no average buying rate is published in accordance with
paragraph (a), the rate available to the Facility Agent at
about 10.30 am (Toronto time) on that day, as conclusively
determined in good faith by the Facility Agent, as the buying
rate for banker's acceptances that have a term equal to (or no
more than 2 Business Days shorter or longer than) the period.
"CODE" means the United States Internal Revenue Code of 1986, as
amended.
"COMMITMENT" has the same meaning as in a Facility Agreement.
"CONSOLIDATED CASH" on any day shall mean the consolidated cash
(including cash held in an Investment Account) on the Parent's
consolidated balance sheet on such day and held by the Parent or any
Group Member in accounts located in Australia, Canada, The Netherlands,
New Zealand or the United States up to USD50,000,000 in the aggregate.
"CONTROL DATE" means the date on which individuals appointed or
nominated by the Parent or its Affiliates (other than Goodman and its
Affiliates immediately prior to such date) constitute a majority of the
board of directors of Goodman.
"CONTROLLER" means, in relation to a person's property:
(a) a receiver or receiver and manager of that property; or
6.
(b) anyone else who (whether or not as agent for the person) is in
possession, or has control, of that property to enforce an
Encumbrance.
"CONVERTING PREFERENCE SHARES" means the converting preference shares
issued by the Parent prior to the date of this document.
"COST SAVINGS" means:
(a) an initial amount of AUD50,000,000 in respect of the
acquisition of shares in Goodman and an initial amount of
AUD8,000,000 in respect of the acquisition of the Fleischmann
business unit from Kraft Foods International Inc., as each
such amount is reduced on each Calculation Date by the
annualised realised cost savings achieved in the quarter
ending on that Calculation Date from the integration of
Goodman and the Fleischmann business unit into the Group,
which realised cost savings and reductions have been verified
by a firm of chartered accountants acceptable to the Facility
Agent (acting reasonably), and a copy of that review has been
delivered to the Facility Agent, provided that:
(i) the amount in respect of the acquisition of shares in
Goodman and integration of Goodman into the Group,
shall reduce to zero by the date which is 12 months
after Goodman becomes a Wholly-Owned Subsidiary of
the Parent; and
(ii) the amount in respect of the acquisition and
integration of the Fleischmann business unit into the
Group, shall reduce to zero on the date which is 12
months after the earlier of the date the Parent
receives all Brazilian anti-trust approvals required
in relation to the acquisition of the Fleischmann
business unit and 30 June 2003; and
(b) in relation to any acquisition (other than an acquisition
referred to in paragraph (a)), an amount in respect of a cost
saving plan (including the amount, time frame and anticipated
milestone dates for any cost savings) agreed between the
Parent and the Facility Agent (acting reasonably) in relation
to that acquisition.
"CO-TRUSTEE" means JPMorgan Chase Bank.
"DEBENTURE" means a Revolving Debenture, a Term Debenture or both, as
the context requires.
"DEBENTURE TRUST DEED" means the deed entitled "Deed of Debenture
Trust" to be entered into between, amongst others, the Parent, the
entities listed in schedule 1 to that deed and the party named as
security trustee in that deed.
"DEBT SERVICE COVER RATIO" means, for a period, the ratio of A:B,
where:
A is EBITDA for that period less the sum of:
(a) Capex during that period; and
(b) Tax paid in respect of that period; and
7.
(c) for any period commencing after 31 December 2002, net
increases in the working capital of the Group in that
period (other than any net increases that arise as a
result of or in connection with the unwind of any
debtor securitisation of Goodman or its
Subsidiaries),
plus any net decreases in the working capital of the Group in
that period.
B is the sum of:
(a) the principal amount of Funding Portions and Paid Up
Amount of Term Debentures that fall due for payment
under clause 8.3 of the Term A Facility Agreement,
the principal amount of any advances that fall due
for payment under section 2.11 of the Term B Facility
Agreement or section 2.11 of the TLB (Tranche 2)
Facility Agreement and any other scheduled repayments
of principal, or amounts in the nature of principal,
in respect of the Financial Indebtedness of the Group
over that period (excluding any amounts which fall
due for payment under those clauses as a result of
the Transactions); and
(b) Net Interest Expense over that period, but excluding:
(i) interest, the payment of which is suspended
under the Capital Notes Bridge Facility
Agreement or Capital Notes under and in
accordance with clause 5.3(i); and
(ii) capitalised interest,
calculated for the Group on a consolidated basis. Solely for the
purpose of determining the Debt Service Cover Ratio for the period of
12 months ending on the first and second Calculation Dates, the amount
of Tax, principal and Net Interest Expense described above for any such
period shall be deemed to be (a) in respect of the period ended on the
first Calculation Date, the amount of Tax, principal and Net Interest
Expense, respectively, for the six months ended on such date,
multiplied by 2, and (b) in respect of the period ended on the second
Calculation Date, the amount of Tax, principal and Net Interest
Expense, respectively, for the nine months ended on such date,
multiplied by 4/3.
"DEFAULT INTEREST PERIOD" means, for an unpaid amount, a period of 30
days (or any other period the Facility Agent selects) beginning on the
day on which the amount falls due, or on the last day of another
Default Interest Period for that amount.
"DEFAULT MARGIN" means on any day, the amount per cent per annum
determined in accordance with the following table by reference to the
most recent Gearing Ratio as advised under clause 5.2(c):
GEARING RATIO APPLICABLE MARGIN
- ----------------------------------------------------------------------
3.51 times or greater 4.50%
- ----------------------------------------------------------------------
3.26 times or greater but less than 4.25%
3.51 times
8.
- ---------------------------------------------------------------
3.01 times or greater but less than 4.00%
3.26 times
- ---------------------------------------------------------------
2.51 times or greater but less than 3.75%
3.01 times
- ---------------------------------------------------------------
Less than 2.51 times 3.50%
- ---------------------------------------------------------------
"DEFAULT RATE" means, for an unpaid amount over a Default Interest
Period, the rate per cent per annum that is the sum of:
(a) the Base Rate for the Default Interest Period for the currency
in which the amount is denominated; and
(b) the Default Margin on the first day of the Default Interest
Period.
"DRAWDOWN DATE" has the same meaning as in a Facility Agreement.
"DRAWDOWN NOTICE" has the same meaning as in a Facility Agreement.
"EBIT" means for the Group for a period, an amount equal to the
consolidated net profit after tax of the Group for the period that
would be disclosed by consolidated financial statements of the Group if
they were prepared in accordance with GAAP as at the last day of that
period, after:
(a) deducting an amount equal to:
(i) profits relating to unrealised revaluations included
in consolidated net profit after tax;
(ii) profits realised on the sale or other disposition of
any asset not manufactured or acquired for disposal
in the ordinary course of ordinary business or
unusual in nature; and
(iii) unrealised exchange gains included in consolidated
net profit after tax; and
(b) adding back an amount equal to:
(i) the provision for income tax and other taxation (if
any) levied in Australia or anywhere else on or by
reference to income or profits relating to that
period;
(ii) the Net Interest Expense for that period;
(iii) losses realised on the sale or other disposition of
any asset not manufactured or acquired for disposal
in the ordinary course of ordinary business or
unusual in nature (including as a result of
revaluations), to the extent that those losses have
been charged against that profit;
9.
(iv) unrealised exchange losses relating to that period;
(v) any Restructuring Costs;
(vi) without double counting, any annualised realised cost
savings relating to that period that have been
reviewed by a firm of chartered accountants
acceptable to the Facility Agent (acting reasonably);
and
(vii) outside equity interests of Associates relating to
that period.
For the purposes of calculating EBIT for any Subsidiary or
business acquired in any period, provided such EBIT has been
verified by a firm of chartered accountants acceptable to the
Facility Agent (acting reasonably) and a copy of that review
delivered to the Facility Agent, EBIT will be adjusted to take
into account the effects of any acquisitions made during the
period. The adjustments will be made on the basis that the
acquired Subsidiary or business had been acquired on the first
day of the period and the EBIT for that acquired Subsidiary or
business for the whole of the period was included in the EBIT
of the Group for that Period.
"EBITDA" means for the Group for a period, the sum of:
(a) EBIT for the Group for that period; and
(b) depreciation and amortisation on fixed and other assets
(including goodwill) of the Group on a consolidated basis
during that period,
that would be disclosed by consolidated financial statements of the
Group if they were prepared in accordance with GAAP as at the last day
of that period.
"ELIGIBLE PURPOSE" means each of the following purposes:
(a) to refinance the financial accommodation that is governed by
the Existing Senior Loan Agreements;
(b) to acquire shares or options in Goodman;
(c) to refinance any financial accommodation of Goodman or its
Subsidiaries once Goodman is a Wholly-Owned Subsidiary of the
Parent;
(d) to refinance any financial accommodation of Goodman or its
Subsidiaries once Goodman is a Subsidiary of the Parent but
before Goodman becomes a Wholly-Owned Subsidiary of the
Parent, to the extent such financial accommodation must be
refinanced to ensure that the borrower is not in default of
its obligations under the document governing that financial
accommodation or the maturity date for that financial
accommodation has occurred or to ensure that the Group is not
in default of its obligations under any financing
arrangements;
10.
(e) to pay any transaction costs relating to the acquisition of
shares or options in Goodman, all debt, asset sales and
related transaction costs (including all legal fees, brokerage
fees, accounting fees and other advisory fees);
(f) to fund the working capital requirements of the Group;
(g) to make inter-company loans to Goodman and its Subsidiaries
once Goodman is a Subsidiary of the Parent or to other Group
Members for any of the purposes referred to in paragraphs (e)
and (f) above;
(h) to refinance the financial accommodation that is governed by
the TLA Bridge Facility.
"EMPLOYEE BENEFIT PLAN" means any "employee benefit plan" as defined in
section 3(3) of ERISA, or any "plan" as defined in section 4975(e)(1)
of the Code, other than a multiemployer plan within the meaning of
section 3(37) of ERISA and which is subject to ERISA or the Code.
"ENCUMBRANCE" means a mortgage, charge, pledge, lien, hypothecation,
title retention or deferred purchase price arrangement, a right of
set-off or right to withhold payment of a deposit or other money, a
notice under section 255 of the Income Tax Assessment Act 1936 or any
similar legislation, or an agreement to create any of them or to allow
any of them to exist.
"ENVIRONMENTAL LAW" means any statute, law or requirement (if the
requirement has the force of law) of a Government Agency:
(a) relating to the storage, handling or transportation of waste,
dangerous goods or hazardous materials;
(b) relating to occupational health and safety; or
(c) which has as one of its purposes or effects the protection of
the environment.
"EQUITY INTERESTS" means shares of capital stock, partnership
interests, membership interests in a limited liability company,
beneficial interests in a trust or other equity interests in any
person, or any obligations convertible into or exchangeable for, or
giving any person a right, option or warrant to acquire such equity
interests or such convertible or exchangeable obligations.
"ERISA" means the United States Employee Retirement Income Security Act
of 1974, as amended.
"ERISA SUBSIDIARY" means any person that is a member of a controlled
group of corporations, or of a group of trades or businesses under
common control, within the meaning of section 414(b) or 414(c) of the
Code, which, in either case, includes BP US or the Parent or, solely
for purposes of liability under section 412 of the Code or section 302
of ERISA, a group of trades or businesses which, together with BP US or
the Parent, as the case may be, is treated as a single employer under
section 414(n) or 414(o) of the Code.
11.
"ESCROW DEED" means the deed to be entered into between, amongst
others, the Parent, the Facility Agent and the party named as security
trustee in that document.
"EURIBOR" means, for a period:
(a) the rate determined by the Facility Agent to be the arithmetic
mean, expressed as a percentage per annum (rounded up (if
necessary) to 4 decimal places), of the rates quoted at or
about 11.00 am (London time) 2 TARGET Business Days before the
first day of that period, for a period equal or comparable to
that period and for value on the first day of that period, on
the Dow Jones Telerate Services page "248" (or any page that
replaces that page); or
(b) where the page referred to in paragraph (a) is not available,
or less than 2 rates are quoted on that page at that time, the
rate determined by the Facility Agent to be the arithmetic
mean of the rates expressed as a percentage per annum (rounded
up (if necessary) to 4 decimal places), at which deposits:
(i) denominated in Euro;
(ii) for the same or a comparable amount;
(iii) for a period equal or comparable to that period; and
(iv) for value on the first day of that period,
are offered to the Facility Agent by prime banks, in the
interbank market selected by it, at or about 11.00 am (local
time in the place of that market) 2 TARGET Business Days
before the first day of that period.
"EURO" means the lawful currency of the member states of the European
Union that adopted a single currency in accordance with the Treaty
establishing the European Community, as amended by the Treaty on
European Union.
"EURO BASE RATE" means:
(a) for a period for which a rate is normally quoted on the Dow
Jones Telerate Services page "248" (or any page that replaces
that page), or for a comparable period - the relevant EURIBOR;
and
(b) for any other period - the rate that the Facility Agent
calculates by straight-line interpolation in accordance with
market practice.
"EVENT OF DEFAULT" means an event or circumstance described in clause
8.1.
"EXCLUDED ASSET" means an asset listed in schedule 9.
"EXCLUDED SUBSIDIARY" has the meaning set out in clause 5.8.
12.
"EXCLUDED TAX" means a Tax on net income in any jurisdiction, other
than:
(a) a Tax that is calculated on or by reference to the gross
amount of any payment derived by a party under a Transaction
Document or the transactions that a Transaction Document
contemplates (unless the Tax is imposed because the party has
not given its tax file number to the person who made the
payment or because the party has not complied with an
applicable certification, information, documentation or other
reporting requirement under applicable law); or
(b) a Tax that is imposed because a party is regarded as being
subject to tax in a jurisdiction solely because it is a party
to a Transaction Document or solely because it is
participating in the transactions that a Transaction Document
contemplates (or both).
"EXISTING ENCUMBRANCE" means an Encumbrance described in schedule 5.
"EXISTING JOINT VENTURE" means a joint venture described in schedule 6
and in the Group Structure Chart.
"EXISTING SENIOR LOAN AGREEMENT" means:
(a) the senior funding agreement dated 2 August 2001 made between
the Parent, the entities listed in schedule 1 to that
agreement, Credit Suisse First Boston, Melbourne Branch, The
Toronto-Dominion Bank and the financial institutions listed in
schedule 2 to that agreement, as amended;
(b) the term loan facility agreement dated 2 August 2001 made
between the Parent, the entities listed in schedule 1 to that
agreement, Credit Suisse First Boston, Melbourne Branch and
the financial institutions listed in schedule 2 to that
agreement; and
(c) the revolving loan facility agreement dated 2 August 2001 made
between the Parent, the entities listed in schedule 1 to that
agreement, Credit Suisse First Boston, Melbourne Branch and
the financial institutions listed in schedule 2 to that
agreement.
"EXISTING TREASURY TRANSACTION" means a Treasury Transaction that a
Group Member is a party to as at the date of this document, as
described in schedule 7.
"FACE VALUE AMOUNT" has the same meaning as in a Facility Agreement.
"FACILITY" has the same meaning as in a Facility Agreement.
"FACILITY AGREEMENT" means each of the Term A Facility Agreement and
the Revolving Facility Agreement.
"FACILITY COMMITMENT" has the same meaning as in a Facility Agreement.
13.
"FINANCIAL INDEBTEDNESS" means an obligation (whether present or
future, actual or contingent) to pay or deliver any money or commodity
under or in respect of any financial accommodation including under or
in respect of any:
(a) money borrowed or raised;
(b) redeemable or repurchaseable share or stock;
(c) bill of exchange, promissory note or other financial
instrument (whether or not transferable or negotiable);
(d) put option or buyback or discounting arrangement in respect of
any property;
(e) lease, licence or other arrangement in respect of any property
entered into primarily to raise finance or to finance the
acquisition of that property (other than a lease, licence or
arrangement which may be accounted for as an operating lease
under applicable generally accepted accounting principles);
(f) hire purchase arrangement in respect of any property;
(g) deferral of a payment obligation for any property or service
entered into in the ordinary course of ordinary business,
where the payment obligation is deferred for more than 180
days and the deferral of the payment obligation is structured
to achieve the same or similar commercial effect to financial
accommodation by way of money borrowed or raised;
(h) interest or currency swap or hedge arrangement, financial
option, futures contract or analogous transaction that is
structured to achieve the same or a similar commercial effect
to financial accommodation by way of money borrowed or raised;
or
(i) arrangement which achieves the same or a similar commercial
effect as or to any of the above,
and any Guarantee of Financial Indebtedness of another person.
"FINANCIAL QUARTER" means a period of 3 calendar months ending on a 30
September, 31 December or 31 March.
"FINANCIAL YEAR" means a period of 12 calendar months ending on a 30
June.
"FOREIGN PENSION PLAN" means any plan, fund (including any
superannuation fund) or other similar program established or maintained
outside the United States of America by the Parent or any Subsidiary
primarily for the benefit of employees residing outside the United
States of America of the Parent or any Subsidiary which plan, fund or
other similar program provides for retirement income for such employees
in contemplation of retirement or provides for payments to be made to
such employees upon termination of employment, and which plan is not
subject to ERISA or the Code.
"FREE CASH FLOW" means, for a period, the sum (excluding double
counting) of:
14.
(a) for the Group:
(i) the sum of:
(A) EBIT for the Group for the period;
(B) the aggregate of depreciation and
amortisation for the Group in respect of
intangible assets, prepaid slotting fees,
tangible fixed assets, real property and
plant and equipment for the period;
(C) an amount equal to the net proceeds of sale
or other disposal actually received by the
Group of any fixed assets or businesses sold
during the period where the net proceeds of
sale or disposal were not paid into an
Investment Account or applied in prepayment
of outstanding Funding Portions to reduce
the Paid Up Amount of Term Debentures under
clause 8.2(a) of the Term A Facility
Agreement or prepayment of outstanding
advances under section 2.13 of the Term B
Facility Agreement or section 2.13 of the
TLB (Tranche 2) Facility Agreement
(excluding assets disposed of in accordance
with clauses 7.1(c) or 7.2);
(D) any decrease in working capital of the Group
in the period as disclosed in the most
recent consolidated statement of cashflows
of the Group has changes in trade debtors,
inventories and trade creditors; and
(E) without double counting, cash receipts that
the Group received over the period in
respect of unusual items and extraordinary
items as reported in the Accounts,
less
(ii) the sum of:
(A) equity accounted EBIT for the Group for the
period in connection with Associates;
(B) profit or loss on the sale of non-current
assets (as shown on the balance sheet
forming part of the consolidated Accounts of
the Group over the period);
(C) amounts that the Group paid over the period
for increases in share capital of
Majority-Owned Subsidiaries and Associates;
(D) Net Interest Expense for the Group for the
period (including, without limitation, in
respect of the Bridge Facility and the
Capital Notes but excluding interest, the
payment of which is suspended under the
Bridge Facility or Capital Notes under and
in accordance with clause 5.3(i));
(E) prepaid slotting payments paid by the Group
over the period;
15.
(F) tax expenses that the Group accrued over the
period;
(G) an amount equal to all Capex that the Group
actually expended over the period;
(H) without double counting, cash expenditure
that the Group incurred over the period in
respect of unusual items and extraordinary
items as reported in the Accounts;
(I) amounts that the Group transferred over the
period to Associates for capital expenditure
or other set up costs;
(J) (1) any voluntary repayment over
the period of Funding Portions by a
reduction in the Paid Up Amount of
the Term Debentures under the Term
A Facility Agreement, or any
voluntary repayment over the period
of advances under section 2.12 of
the Term B Facility Agreement or
section 2.12 of the TLB (Tranche 2)
Facility Agreement;
(2) any mandatory repayment over the
period of Funding Portions by a
reduction in the Paid Up Amount of
the Term Debentures under the Term A
Facility Agreement, or any mandatory
repayment over the period of
advances under section 2.13 of the
Term B Facility Agreement or section
2.13 of the TLB (Tranche 2) Facility
Agreement;
(K) any dividends paid over the period on the
Converting Preference Shares (up to
conversion);
(L) any Cash Restructuring Costs;
(M) any increase in working capital of the Group
in the period as disclosed in the most
recent consolidated cashflows of the Group
as changes in trade debtors, inventories and
trade creditors;
(N) establishment and up front fees payable to
financiers that are incurred in connection
with the Transactions up to a maximum amount
of AUD20,000,000 and any other fees incurred
in connection with the Transactions
(including, without limitation, legal fees,
accounting fees and other advisory fees);
(O) any costs, fees and expenses incurred by
Goodman and its Subsidiaries and payable by
the Group incurred in connection with
Goodman's defence of the Offer or any
Options Offer;
(P) the amount paid in cash equal to the net
payments for the purchase or acquisition of
a business by any Group Member, whether by
way of acquisition of shares or net assets,
to the extent that it is funded from
existing cash resources of the Group
(excluding cash proceeds raised in
connection with such purchase or
acquisition); and
16.
(Q) any annualised unrealised cost savings
relating to that period (to the extent
included in EBIT) that have been verified by
a firm of chartered accountants acceptable
to the Facility Agent (acting reasonably),
(b) the greater of:
(i) 50% of the Group's share (determined by reference to
its proportionate ownership interest in the
Associate) of the net profit after tax of each
Associate for the period, determined in accordance
with GAAP; and
(ii) the amount of dividends or cash distributions that
Associates actually pay to Group Members over the
period (after allowing for amounts that have been
taken into account under paragraph (b)(i) in previous
periods).
"FUNDING PORTION" has the same meaning as in a Facility Agreement.
"GAAP" means generally accepted accounting principles in Australia,
consistently applied.
"GEARING RATIO" means, for a period, the ratio of Net Total Debt of the
Group (excluding the principal amount of the Bridge Facility and the
Capital Notes) on the last day of that period to LTM EBITDA of the
Group for that period.
"GELATIN DISPOSAL" means the disposal by the Parent, Goodman or its
Subsidiaries of the remaining Leiner Davis Gelatin business and the
joint venture interest in the Ecuadorian gelatin business of Goodman.
"GF PROGRAM RECEIVABLES" means all trade or debtor receivables and
related contract rights originated and owned by Goodman or any of its
Subsidiaries and sold pursuant to the GMF Securitisation Facility.
"GMF NOTES" means the USD200,000,000 principal amount of guaranteed
senior notes issued by a Subsidiary of Goodman and due in 2011.
"GMF SECURITISATION FACILITY" means the facility for the sale of, or
transfer of interests in, GF Program Receivables to which Goodman and
one or more of its Subsidiaries are a party as at the date of this
document.
"GOODMAN" means Goodman Fielder Limited (ABN 44 000 003 958).
"GOVERNMENT AGENCY" means:
(a) a government or government department or other body;
(b) a governmental, semi-governmental or judicial person; or
(c) a person (whether autonomous or not) who is charged with the
administration of a law under statute or the rules of any
stock exchange.
"GROUP" means the Parent, the Subsidiaries and the Associates from time
to time.
17.
"GROUP MEMBER" means the Parent and any Subsidiary from time to time.
"GROUP PARTY" means a Group Member that is a party to a Transaction
Document.
"GROUP SECURITY PROVIDER" means a Group Member that is a grantor of a
Security.
"GROUP STRUCTURE CHART" means the document in the agreed form
comprising a chart and any attached supplementary information that
shows the structure of the Group and incorporates a list of the Group
Members and other details relating to them.
"GUARANTEE" means a guarantee, indemnity, letter of credit, performance
bond, acceptance or endorsement, or other undertaking or obligation:
(a) to provide funds (including by the purchase of property), or
otherwise to make property available, in or to enable payment
or discharge of;
(b) to indemnify against the consequences of default in the
payment of; or
(c) otherwise to be responsible for,
an obligation (whether or not it involves the payment of money), or
otherwise to be responsible for the solvency or financial condition, of
any other person.
"HIGH YIELD NOTE INDENTURE" means the indenture dated as of June 21,
2002, among Burns Philp Capital Pty Limited, the Parent, the subsidiary
guarantors (as defined therein) from time to time and The Bank of New
York.
"HIGH YIELD NOTES" means the 9 3/4% senior subordinated notes due 15
July 2012 issued by Burns Philp Capital Pty Limited pursuant to the
High Yield Note Indenture, any additional notes (ADDITIONAL NOTES)
issued under such High Yield Note Indenture from time to time and any
other notes or other debt instruments issued from time to time which
rank pari passu with such High Yield Notes or Additional Notes
(including, without limitation, the New High Yield Notes).
"IA WITHDRAWAL REQUEST" means a notice in substantially the form set
out in schedule 14.
"INSOLVENCY EVENT" means, in respect of a person:
(a) an order being made, or the person passing a resolution, for
its winding up, dissolution or deregistration;
(b) an application being made to a court for an order for
protection from creditors or for its reorganisation, winding
up, dissolution or deregistration, unless the application is
withdrawn or dismissed within 5 Business Days;
(c) an administrator or analogous person being appointed to the
person;
18.
(d) (i) the person resolving to appoint a Controller or
analogous person to the person or any of the person's
property;
(ii) an application being made to a court for an order to
appoint a Controller, provisional liquidator, trustee
for creditors or in bankruptcy or analogous person to
the person or any of the person's property, unless
the application is withdrawn or dismissed within 5
Business Days; or
(iii) an appointment of the kind referred to in
subparagraph (ii) being made (whether or not
following a resolution or application);
(e) the holder of a Security Interest taking possession of any of
the person's property;
(f) the person being taken under section 459F(1) of the
Corporations Act 2001 to have failed to comply with a
statutory demand;
(g) the person:
(i) suspending payment of its debts, ceasing (or
threatening to cease) to carry on all or a material
part of its business, stating that it is unable to
pay its debts or being or becoming otherwise
insolvent; or
(ii) being taken by applicable law to be (or if a court
would be entitled or required to presume that the
person is) unable to pay its debts or otherwise
insolvent;
(h) the process of any court or authority being invoked against
the person or any of its property to enforce any judgment or
order for the payment of money or the recovery of any
property, unless the person is able, within 5 Business Days,
to satisfy the Facility Agent that there is no substantial
basis for the judgment or order in respect of which the
process was invoked;
(i) the person taking any step that could result in the person
becoming an insolvent under administration (as defined in
section 9 of the Corporations Act 2001);
(j) the person taking any step toward entering into a compromise
or arrangement with, or assignment for the benefit of, any of
its members or creditors; or
(k) any analogous event in any relevant jurisdiction,
unless this takes place as part of a solvent reconstruction,
amalgamation, merger or consolidation that has been approved by the
Facility Agent.
"INTERCREDITOR AGREEMENT" means the agreement to be entered into
between, amongst others, the Facility Agent, the party named as
Administrative Agent under the Term B Facility Agreement and the TLB
(Tranche 2) Facility Agreement, the party named as Facility Agent under
the TLA Bridge Senior Funding Agreement, Rabo Australia Limited, HSBC
Bank Australia Limited and the Security Trustee.
"INTEREST COVER RATIO" means, for a period, the ratio of EBITDA for the
Group for the period to Net Interest Expense for the Group for the
period.
19.
"INTEREST PAYMENT DATE" has the same meaning as in a Facility
Agreement.
"INTEREST PERIOD" has the same meaning as in a Facility Agreement.
"INTEREST SUSPENSION FINANCIAL COVENANTS" means:
(a) the Gearing Ratio for each period of 12 months that ends on a
Calculation Date that occurs in a period set out in the
following table must not be more than the amount set out in
the following table opposite that period:
MAXIMUM PERMITTED
PERIOD GEARING RATIO
- ----------------------------------------------------------------
To 30 June 2003 4.80 times
- ----------------------------------------------------------------
1 July 2003 to 31 December 2003 4.80 times
- ----------------------------------------------------------------
1 January 2004 to 30 June 2004 4.65 times
- ----------------------------------------------------------------
1 July 2004 to 31 December 2004 4.15 times
- ----------------------------------------------------------------
1 January 2005 to 30 June 2005 3.90 times
- ----------------------------------------------------------------
1 July 2005 to 31 December 2005 3.65 times
- ----------------------------------------------------------------
1 January 2006 to 30 June 2006 3.40 times
- ----------------------------------------------------------------
After 1 July 2006 3.15 times
- ----------------------------------------------------------------
(b) the Interest Cover Ratio for each period of 12 months that
ends on a Calculation Date that occurs in a period set out in
the following table must not be less than the amount set out
in the following table opposite that period:
PERIOD MINIMUM PERMITTED INTEREST
COVER RATIO
- ----------------------------------------------------------------
To 30 June 2003 2.20 times
- ----------------------------------------------------------------
1 July 2003 to 31 December 2003 2.20 times
- ----------------------------------------------------------------
20.
PERIOD MINIMUM PERMITTED INTEREST
COVER RATIO
- ---------------------------------------------------------------
1 January 2004 to 30 June 2004 2.35 times
- ---------------------------------------------------------------
1 July 2004 to 31 December 2004 2.60 times
- ---------------------------------------------------------------
1 January 2005 to 30 June 2005 2.60 times
- ---------------------------------------------------------------
1 July 2005 to 31 December 2005 2.85 times
- ---------------------------------------------------------------
1 January 2006 to 30 June 2006 2.85 times
- ---------------------------------------------------------------
After 1 July 2006 3.10 times
- ---------------------------------------------------------------
(c) the Debt Service Cover Ratio for each period of 12 months that
ends on a Calculation Date that occurs in a period set out in
the following table must not be less than the amount set out
in the following table opposite that period:
21.
PERIOD MINIMUM PERMITTED DEBT SERVICE
COVER RATIO
- ---------------------------------------------------------------------
To 30 June 2003 1.10 times
- ---------------------------------------------------------------------
1 July 2003 to 31 December 2003 1.10 times
- ---------------------------------------------------------------------
1 January 2004 to 30 June 2004 1.10 times
- ---------------------------------------------------------------------
1 July 2004 to 31 December 2004 1.10 times
- ---------------------------------------------------------------------
1 January 2005 to 30 June 2005 1.20 times
- ---------------------------------------------------------------------
1 July 2005 to 31 December 2005 1.20 times
- ---------------------------------------------------------------------
1 January 2006 to 30 June 2006 1.20 times
- ---------------------------------------------------------------------
After 1 July 2006 1.20 times
- ---------------------------------------------------------------------
"INVESTMENT ACCOUNT" means an account referred to in clause 7.4(a).
"LENDER" means each lender under and as defined in the Term B Facility
Agreement or the TLB (Tranche 2) Facility Agreement, as applicable,
from time to time.
"LENDING OFFICE" means, for a Subscriber (or its Subscriber Affiliate)
in relation to a Borrower and a Facility, the lending office specified
as such in the relevant Facility Agreement or in a valid notice of
assignment or Substitution Certificate, or any other office in the same
jurisdiction as the original Lending Office or in any office of the
same jurisdiction as the relevant Borrower that the Subscriber may
notify to the Parent and the Facility Agent.
"LIQUIDATION" means liquidation, winding up, merger, deregistration,
dissolution or amalgamation or other analogous procedure under any
relevant law applicable to corporate reorganisation that results in the
affected entity ceasing to exist.
"LTM EBITDA" means, for a period, the aggregate of EBITDA for that
period plus Cost Savings for that period.
"MAJORITY OF SUBSCRIBERS" means:
(a) if a Debenture is outstanding and not redeemed, one or more
Subscribers whose aggregate Paid Up Amount of all Debentures
recorded in a Register as being held
22.
by them equals or exceeds two-thirds of the total Paid Up
Amount of all outstanding Debentures;
(b) if no Debenture is outstanding and paragraph (c) does not
apply, one or more Subscribers whose aggregate Commitments
equal or exceed two-thirds of the Total Commitment; or
(c) if no Debenture is outstanding and the Commitments have been
reduced to zero, one or more Subscribers whose aggregate Paid
Up Amount of all Debentures recorded in a Register as being
held by them immediately before they were repaid or redeemed
in full equalled or exceeded two-thirds of the total Paid Up
Amount of all outstanding Debentures at that time,
(calculated, in the case of any part of the Paid Up Amount of a
Debenture that is not denominated in Australian Dollars, by reference
to the AUD Equivalent of the outstanding amount using the relevant Spot
Rate for the Drawdown Date, Rollover Date or Switch Date for the
relevant Funding Portions), whether or not a majority of Subscribers by
number.
"MAJORITY-OWNED SUBSIDIARY" means a Subsidiary that is not a
Wholly-Owned Subsidiary.
"MASTER DEBENTURE" has the meaning given to it in the Debenture Trust
Deed.
"MATERIAL ADVERSE EFFECT" means a material adverse effect in the
reasonable opinion of the Majority of Subscribers on:
(a) the business, property or financial condition of the Group
(taken as a whole); or
(b) the ability of any Group Member to perform any of its
obligations under the Transaction Documents.
"MATURITY DATE" means, for a Funding Portion under the Revolving
Facility Agreement, the last day of the scheduled term of that Funding
Portion.
"NET DISPOSAL PROCEEDS" means the aggregate of the proceeds received by
a Group Member from any person as part of, or in connection with, the
disposal of property of a Group Member, including (without double
counting) any amount by which any of those proceeds are used to reduce
or discharge any loan made by a Group Member to another Group Member
less:
(a) direct costs relating to the relevant disposal (including
filing and registration fees, investment banking fees, brokers
fees, sales commissions or severance payments, adjustments to
pension, insurance, superannuation or similar arrangements (in
each case properly incurred on an arm's length basis) and
properly incurred legal, accounting and other professional
advisers' fees);
(b) taxes paid or reasonably estimated to be payable as a result
thereof (after taking into account any available tax credits
or deductions relating to the disposal in question); and
23.
(c) any amount required to repay or discharge any Financial
Indebtedness of the Group Member which is, or whose assets
are, being disposed of, where such repayment or discharge is
not otherwise prohibited by the terms of this document.
"NET INTEREST EXPENSE" means, for the Group for a period, Total
Interest Expense for the Group for that period less interest income of
the Group over that period, calculated on a consolidated basis in
accordance with GAAP.
"NET PRIORITY 1 DEBT" means, on any day:
(a) the Priority 1 Debt on that day;
less
(b) the amount of cash held on that day by:
(i) the Parent; or
(ii) any other Group Member, to the extent that there is
no legal, contractual or other restriction on the
ability of the Parent to readily procure that the
cash is transferred to the Parent or a Group Security
Provider in such a way that the cash would (if so
transferred) be subject to a Security,
other than cash held in an Investment Account.
"NET SENIOR DEBT" means, on any day, Net Total Debt less any component
of Net Total Debt which is subordinated to the liabilities owed to the
Subscribers under the Transaction Documents.
"NET TOTAL DEBT" means, on any day, the Total Debt on that day less the
sum of Consolidated Cash on that day, to the extent that there is no
legal, contractual or other restriction on the ability of the Parent to
readily procure that the cash is transferred to the Parent or a Group
Security Provider in such a way that the cash would (if so transferred)
be subject to a Security.
"NEW BORROWER" means a Group Member that becomes a Borrower under
clause 5.7.
"NEW HIGH YIELD NOTES" means the 10.75% senior subordinated notes due
2011 issued by Burns Philp Capital Pty Limited and Burns Philp Capital
(U.S.) Inc pursuant to the New High Yield Notes Indenture.
"NEW HIGH YIELD NOTES INDENTURE" means the indenture under which the
New High Yield Notes are issued and all other instruments, agreements
and other documents evidencing or governing the New High Yield Notes or
providing for any Guarantee or other right in respect thereof.
"NEW SECURITY DOCUMENT" means each document listed in schedule 4.
"NEW SUBSCRIBER" means a financial institution that becomes a
Subscriber under clause 13.4.
24.
"NEW TRANSACTION DOCUMENT" means:
(a) this document;
(b) each Facility Agreement;
(c) the Debenture Trust Deed;
(d) each Master Debenture;
(e) the letter agreement referred to in clause 5.10;
(f) each New Security Document;
(g) the Security Trustee Agreement;
(h) the Escrow Deed;
(i) the Intercreditor Agreement;
(j) any other document which the Parent and the Facility Agent
agree in writing to be a New Transaction Document; and
(k) any other document that amends, supplements, replaces or
novates any of the above.
"NEW ZEALAND DOLLAR" and "NZD" means the lawful currency of New
Zealand.
"NZD BANK BILL RATE" means, for a period:
(a) the rate, expressed as a yield per cent per annum (rounded up
(if necessary) to 4 decimal places) that is quoted as the
average bid rate on the Reuters monitor system page "BKBM" (or
any page that replaces that page) at about 10.45 am (Auckland
time) on the first day of that period for bills of exchange
accepted by a New Zealand bank that have a term that is equal
to (or no more than 2 Business Days shorter or longer than)
that period; or
(b) if no average bid rate is published in accordance with
paragraph (a), the bid rate available to the Facility Agent at
about 11.00 am (Auckland time) on that day, as conclusively
determined in good faith by the Facility Agent, for bills of
exchange accepted by a New Zealand bank that have the tenor
described in that paragraph.
"NZD BASE RATE" means:
(a) for a period for which a rate is normally quoted on the
Reuters monitor system page "BKBM" (or any page that replaces
that page), or for a period that is no more than 2 Business
Days shorter or longer than such a period - the relevant NZD
Bank Bill Rate; and
(b) for any other period - the rate that the Facility Agent
calculates by straight-line interpolation in accordance with
market practice.
25.
"OFFER" means the offer made by BPC1 for the ordinary shares in
Goodman.
"OPTIONS OFFER" means any offer which may be made by BPC1 to acquire or
procure the cancellation of all share options in Goodman.
"PAID UP AMOUNT" has the same meaning as in a Facility Agreement.
"PERMITTED ENCUMBRANCE" means:
(a) an Encumbrance (if any) created under a Transaction Document;
(b) an Existing Encumbrance, where the amount secured does not
increase, and the time for payment of that amount is not
extended, beyond the amount and time identified in schedule 5;
(c) a lien that arises by operation of law in the ordinary course
of the ordinary business of the Group, where the amount
secured is not overdue or is being diligently contested in
good faith;
(d) a set-off arrangement entered into as part of normal banking
arrangements or in the ordinary course of day-to-day trading
or arising by operation of law;
(e) an intra-Group cross-guarantee arrangement entered into in
order to obtain class order relief from the Australian
Securities and Investments Commission;
(f) a title retention arrangement entered into with a supplier in
the ordinary course of ordinary business;
(g) a deferred payment obligation for any property or service
entered into in the ordinary course of ordinary business,
where the payment obligation is deferred for not more than 180
days and the deferral of the payment obligation is structured
to achieve the same or a similar commercial effect to
financial accommodation by way of money borrowed or raised;
(h) an Encumbrance given by a Group Member in favour of:
(i) the Parent;
(ii) a Wholly-Owned Subsidiary; or
(iii) a Majority-Owned Subsidiary in which the Parent has
an effective proportionate ownership interest that is
at least as great as its effective proportionate
ownership interest in the Group Member that gives the
Encumbrance;
(i) an Encumbrance that is permitted under clause 5.3(b);
(j) an Encumbrance on GF Program Receivables; and
(k) any other Encumbrance that the Facility Agent (acting on the
instructions of a Majority of Subscribers) approves before it
arises, where the amount secured does
26.
not increase, and the time for payment of that amount is not
extended beyond the amount and time approved.
"POTENTIAL EVENT OF DEFAULT" means an event or circumstance which, with
the passage of time or the giving of notice or both, would become an
Event of Default.
"PRIORITY 1 DEBT" has the same meaning as Priority 1 Debenture
Stockholders' Debt in the Security Trust Deed.
"QUARTER DATE" means each 31 March, 30 June, 30 September and 31
December.
"QUARTER PERIOD" means a period from a Quarter Date, and ending on the
next Quarter Date.
"REGISTER" has the same meaning as in a Facility Agreement.
"REGULATORY CHANGE" means:
(a) the introduction of, or a change in, an applicable law or
regulatory requirement or in its interpretation or
administration by a Government Agency; or
(b) compliance by a Subscriber or any related body corporate of a
Subscriber with an applicable direction, request or
requirement (whether existing or future) of a Government
Agency, and whether or not it has the force of law (except
that, if it does not have the force of law, it must be one
with which responsible banks or financial institutions would
comply).
"RELEVANT JURISDICTIONS" means, in respect of any person, the
jurisdiction of the country (and, in the case of the United States,
Australia and any other federation, the state, province, canton,
territory or similar political subdivision) in which such person is
incorporated and, if different, where it has its principal place of
business or where it conducts a significant portion of its business.
"REPAYMENT AMOUNT" means an amount that has become a Repayment Amount
under clause 7.1(b), pending application under clause 7.5.
"RESTRUCTURING COSTS" means, in respect of any period, non-recurring
costs and expenses incurred by the Group during that period in relation
to restructuring (including, for the avoidance of doubt, all costs and
expenses relating to redundancy, closure and make good costs, asset
relocation costs not capable of capitalisation, consultant fees and
asset write downs), provided that such costs have been verified by a
firm of chartered accountants acceptable to the Facility Agent (acting
reasonably) and a copy of that review has been delivered to the
Facility Agent.
"RETIRING SUBSCRIBER" means a Subscriber that arranges a substitution
under clause 13 in respect of all or part of its Commitments.
"REVIEW EVENT" has the meaning given to it in clause 8.3(a).
"REVOLVING DEBENTURE" has the same meaning as in the Debenture Trust
Deed.
27.
"REVOLVING FACILITY AGREEMENT" means the Revolving Facility Agreement
dated on or about the date of this document between the Parent, each
Borrower, the Facility Agent and certain of the Subscribers.
"ROLLOVER DATE" has the same meaning as in the Revolving Facility
Agreement.
"SECURITY" means each Encumbrance, Guarantee or undertaking that the
Security Trustee holds, or that is to be granted to the Security
Trustee, in its capacity as trustee of the Security Trust and any other
trust for the benefit of, amongst others, the Subscribers, other than
an Encumbrance, Guarantee or undertaking that has been released with
the consent of the Facility Agent.
"SECURITY DOCUMENT " means the Security Trust Deed, the Debenture Trust
Deed, each Security and each other "Transaction Document" as defined in
the Security Trust Deed or the Debenture Trust Deed.
"SECURITY INTEREST" means an Encumbrance that secures the payment of
money or the performance of an obligation, or any other interest or
arrangement of any kind that gives a creditor priority over other
creditors in relation to any property.
"SECURITY TRUST" means the trust established under the Security Trust
Deed.
"SECURITY TRUST DEED" means the Security Trust Deed dated 28 July 1998
between the Parent and Chase Securities Australia Limited.
"SECURITY TRUSTEE" means the "Trustee" from time to time under the
Security Trust Deed, including any co-trustee or separate trustee
appointed under clause 3.19 of that document.
"SECURITY TRUSTEE AGREEMENT" means the "Security Trustee Agreement " to
be entered into between, amongst others, the Parent, the Facility
Agent, and the party named as security trustee in that document.
"SENIOR DEBT RATIO" means, for a period, the ratio of Net Senior Debt
of the Group on the last day of that period to EBITDA of the Group for
that period.
"SENIOR INTEREST COVER RATIO" means, for a period, the ratio of EBITDA
for the Group for the period to Senior Net Interest Expense for the
Group for the period.
"SENIOR NET INTEREST EXPENSE" means, for the Group for a period, the
Total Interest Expense (less the gross amount of all interest and
financing costs incurred by the Group over that period, calculated on a
consolidated basis in accordance with GAAP, after taking into account
all realised losses and profits on foreign currency borrowings and
financing transactions (other than amounts transferred to foreign
currency translation reserves) in respect of Financial Indebtedness
other than the Financial Indebtedness incurred under the Term A
Facility Agreement, the Revolving Facility Agreement, the Term B
Facility Agreement, the TLB (Tranche 2) Facility Agreement and any
Treasury Transactions entered into to manage interest costs under those
agreements) for the Group for that period less interest income of the
Group over that period, calculated on a consolidated basis in
accordance with GAAP.
28.
"SHARE" means for a Subscriber in relation to a Funding Portion, the
proportion of the Funding Portion that is owing to it or to its
Subscriber Affiliate, as relevant.
"SPONSORSHIP DEED" means the deed to be entered into between, amongst
others, BPC1, Credit Suisse First Boston Australia Equities Limited and
the party named as the security trustee in that document.
"SPOT RATE" means, on any day, the rate determined by the Facility
Agent, in accordance with its usual practice and in the interbank
market selected by it, to be the rate at which it is able to purchase
one currency by payment in another currency (whether directly or
through one or more intermediate currencies) at or about 11.00 am
(local time in the place of that market):
(a) in the case of Euro, 2 TARGET Business Days before that day;
and
(b) in the case of any other currency, 2 Banking Days (in the
place of that market) before that day,
for delivery on that day.
"SUBORDINATION DEED" means the deed poll dated 27 February 2003 by
BPC1, the Parent, the Bridge Facility Agent (a defined in the deed) in
favour of any Senior Creditor (as defined in that deed poll).
"SUBSCRIBER" means an Initial Subscriber or a New Subscriber, other
than an Initial Subscriber or a New Subscriber that has assigned or
substituted all of its rights and obligations (including those of its
Subscriber Affiliates) under this document and each Facility Agreement
in accordance with clause 13.
"SUBSCRIBER AFFILIATE" means, for a Subscriber, a related body
corporate that it has nominated in relation to a Borrower in accordance
with clause 1.4.
"SUBSIDIARY" means:
(a) a corporation, partnership, joint venture, trust or other
entity of or which (or in which):
(i) (in the case of a corporation)
(A) more than 50% of the issued and outstanding
voting share capital;
(B) more than 50% of the issued and outstanding
share capital (excluding any part of that
issued share capital that carries no right
to participate beyond a specified amount in
a distribution of either profits or
capital); or
(C) the power to appoint or control the
appointment of more than 50% of the board of
directors (irrespective of whether, at the
time, share capital of any other class or
classes of such corporation has or might
have voting power upon the occurrence of any
contingency);
29.
(ii) (in the case of a partnership or joint venture not
being a corporation) more than 50% of the interest in
the capital or profits of such partnership or joint
venture; or
(iii) (in the case of a trust or estate) more than 50% of
the beneficial interest in such trust or estate,
is at the time directly or indirectly owned or controlled by
the Parent, by the Parent and one or more other Subsidiaries
or by one or more other Subsidiaries; or
(b) any other entity that the Parent or another Subsidiary
"controls" for the purposes of section 50AA of the
Corporations Act 2001.
"SUBSIDIARY LIMIT" means the aggregate of:
(a) AUD80,000,000; and
(b) 5% of EBITDA of the Group for the period of 12 months ending
on the most recent 30 June or 31 December.
"SUBSTITUTION CERTIFICATE" means a certificate substantially in the
form set out in schedule 12.
"SUPER-MAJORITY OF SUBSCRIBERS" means:
(a) if a Debenture is outstanding and not redeemed, one or more
Subscribers whose aggregate Paid Up Amount of all Debentures
recorded in a Register as being held by them equals or exceeds
80% of the total Paid Up Amount of all outstanding Debentures;
(b) if no Debenture is outstanding and paragraph (c) does not
apply, one or more Subscribers whose aggregate Commitments
equal or exceed 80% of the Total Commitment; or
(c) if no Debenture is outstanding and the Commitments have been
reduced to zero, one or more Subscribers whose aggregate Paid
Up Amount of all Debentures recorded in a Register as being
held by them immediately before they were repaid or redeemed
in full equalled or exceeded 80% of the total Paid Up Amount
of all outstanding Debentures at that time,
(calculated, in the case of any part of the Paid Up Amount of a
Debenture that is not denominated in Australian Dollars, by reference
to the AUD Equivalent of the outstanding amount using the relevant Spot
Rate for the Drawdown Date, Rollover Date or Switch Date for the
relevant Funding Portions), whether or not 80% of Subscribers by
number.
"SUPPLEMENTAL SECURITIES" means:
(a) new security documents, on substantially the same terms as the
existing Security Documents, from each Subsidiary of the
Parent incorporated in Germany and in any other jurisdiction
where a new security document is reasonably required to
30.
ensure that the Facilities are secured by the same assets and
on substantially the same terms as the Existing Senior Loan
Agreements; and
(b) any acknowledgements or confirmations reasonably required by
the Facility Agent from any of the Subsidiaries of the Parent
to ensure that the Facilities are secured by the same assets
and on substantially the same terms as the Existing Senior
Loan Agreements.
"SWITCH DATE" has the same meaning as in the Term A Facility Agreement.
"TARGET BUSINESS DAY" means a day on which the TARGET System is
operating.
"TARGET SYSTEM" means the Trans-European Automated Real-Time Gross
Settlement Express Transfer (TARGET) System or any successor system.
"TAX" means a tax, levy, impost, duty, charge, deduction or
withholding, however it is described, that is imposed by a law or a
Government Agency, together with any related interest, penalty, fine or
other charge.
"TERM A FACILITY AGREEMENT" means the agreement entitled Term A
Facility Agreement dated 16 January 2003 between the Parent, each
Borrower, the Facility Agent and the Subscribers.
"TERM B FACILITY AGREEMENT" means the USD270,000,000 credit agreement
to be entered into between, amongst others, the Parent, the party named
as Administrative Agent, the lenders party thereto and Burns Philp
Inc..
"TERM B PLEDGE AGREEMENT" means the pledge agreement to be entered into
by Burns Philp Inc. and the party named as Administrative Agent.
"TERM DEBENTURE" has the same meaning as in the Debenture Trust Deed.
"TERM FACILITY AGREEMENT" means each of the Term A Facility Agreement,
the Term B Facility Agreement and the TLB (Tranche 2) Facility
Agreement.
"TERMINATION DATE" means 12 December 2007.
"THRESHOLD AMOUNT" means AUD50,000,000 less the amount by which the
Revolving Facility Agreement is utilised to satisfy or discharge the
obligations of Goodman and its Subsidiaries under, or to refinance, the
GMF Securitisation Facility.
"TLA BRIDGE DEBENTURE" means the Financial Indebtedness incurred under
the TLA Bridge Facility.
"TLA BRIDGE FACILITY" means the bridge facility made pursuant to the
TLA Bridge Senior Funding Agreement and the TLA Bridge Term Facility
Agreement.
"TLA BRIDGE SENIOR FUNDING AGREEMENT" means the bridge senior funding
agreement to be entered into between the Parent, each borrower party
thereto, Credit Suisse First Boston (Melbourne Branch) and the
subscribers party thereto.
31.
"TLA BRIDGE TERM FACILITY AGREEMENT" means the bridge term facility
agreement to be entered into between the Parent, each borrower party
thereto, Credit Suisse First Boston (Melbourne Branch) and the
subscribers party thereto.
"TLB (TRANCHE 2) FACILITY AGREEMENT" means the USD65,000,000 credit
agreement to be entered into between, amongst others, the Parent, the
party named as Administrative Agent, the lenders party thereto and
Burns Philp Inc..
"TLB (TRANCHE 2) PLEDGE AGREEMENT" means the pledge agreement to be
entered into by Burns Philp Inc. and the party as named as
Administrative Agent.
"TOTAL COMMITMENT" means the sum of the Facility Commitments under all
Facility Agreements.
"TOTAL DEBT" means, on any date, the gross amount of all financing
liabilities of the Group on that date, calculated on a consolidated
basis in accordance with GAAP, including:
(a) the redemption amount of all debt instruments;
(b) the principal amount of all finance leases and hire purchase
agreements;
(c) the redemption amount of all redeemable shares issued by a
Group Member; and
(d) all other liabilities that are required by GAAP to be treated
as financing liabilities.
"TOTAL INTEREST EXPENSE" means, for the Group for a period, the gross
amount of all interest and financing costs incurred by the Group over
that period, calculated on a consolidated basis in accordance with
GAAP, after taking into account all realised losses and profits on
foreign currency borrowings and financing transactions (other than
amounts transferred to foreign currency translation reserves),
including:
(a) the amount of all discounts and similar allowances on the
issue or disposal of debt instruments;
(b) all finance charges under finance leases and hire purchase
agreements;
(c) the amount of all dividends paid or payable on redeemable
shares issued by any Group Member; and
(d) all other expenses and amounts that are required by GAAP to be
treated as an interest or financing cost other than
amortisation of loan establishment costs,
but excluding interest and financing costs on money borrowed or raised
to acquire, develop or improve fixed assets, to the extent that they
have been capitalised in the accounts of the Group and excluding:
(e) interest and financing costs on the redeemed USD 100,000,000
aggregate amount of 5 1/2 Guaranteed Subordinated Convertible
Bonds issued by Burns Philp Treasury (Europe) BV and the
redeemed USD 100,000,000 aggregate amount of Conversion Bonds
issued by the Parent;
32.
(f) the make whole premium on existing financial accommodation of
Goodman or any amounts paid by any other Group Member in
respect of such amount;
(g) any realised costs of closing out a Treasury Transaction that
is incurred in connection with the refinancing of the Existing
Senior Loan Agreements or any acquisition of a Subsidiary or
business after the date of this document;
(h) any dividends paid over the period on the Converting
Preference Shares (up to conversion); and
(i) any non-cash items included in interest in the most recent
financial statements of the Group.
"TRANSACTION DOCUMENT" means:
(a) each New Transaction Document;
(b) each other Security Document;
(c) any document or agreement that the Parent and the Facility
Agent agree in writing is to be a Transaction Document for the
purposes of this document; and
(d) any document or agreement that amends, supplements, replaces
or novates any of the above.
"TRANSACTIONS" means each of the following transactions:
(a) refinancing the financial accommodation that is governed by
the Existing Senior Loan Agreements;
(b) acquiring shares or options in Goodman;
(c) refinancing any financial accommodation of Goodman or its
Subsidiaries once it is a Wholly-Owned Subsidiary of the
Parent;
(d) refinancing any financial accommodation of Goodman or its
Subsidiaries once Goodman is a Subsidiary of the Parent but
before Goodman becomes a Wholly-Owned Subsidiary of the
Parent, to the extent such financial accommodation must be
refinanced to ensure that the borrower is not in default of
its obligations under the document governing that financial
accommodation or the maturity date for that financial
accommodation has occurred or to ensure that the Group is not
in default of its obligations under any financing
arrangements;
(e) refinancing the borrowing under the TLA Bridge Facility;
(f) the issuance of the Capital Notes and of up to USD210,000,000
senior subordinated notes to be issued by Burns Philp Capital
Pty Ltd or Burns Philp Capital (US) Inc. or any alternative
senior subordinated facility; and
(g) to pay any transaction costs relating to the acquisition of
shares or options in Goodman, all debt, asset sales and
related transaction costs.
33.
"TREASURY TRANSACTION" means any foreign exchange agreement, currency
or interest purchase, interest rate swap, cap or collar agreement,
currency swap agreement, currency and interest rate future or option
contract and other similar agreement (whether entered into before, on
or after the date of this document).
"UNITED STATES" means the United States of America (including the
District of Columbia), its territories, possessions and other areas
subject to the jurisdiction of the United States of America.
"UNITED STATES DOLLAR" and "USD" mean the lawful currency of the United
States of America.
"US OBLIGOR" means a Group Party that has a Relevant Jurisdiction in
the United States.
"USD BASE RATE" means:
(a) for a period for which a rate is normally quoted on the
Reuters monitor system page "LIBO" (or any page that replaces
that page), or for a comparable period - the relevant USD
LIBOR; and
(b) for any other period - the rate that the Facility Agent
calculates by straight-line interpolation in accordance with
market practice.
"USD LIBOR" means, for a period:
(a) the rate determined by the Facility Agent to be the arithmetic
mean, expressed as a percentage per annum (rounded up (if
necessary) to 4 decimal places), of the rates quoted at or
about 11.00 am (London time), 2 Banking Days (in London)
before the first day of that period for a period equal or
comparable to that period and for value on the first day of
that period on the Reuters monitor system page "LIBO" or any
page which replaces that page; or
(b) where the page referred to in paragraph (a) is not available,
or less than 3 rates are quoted on that page at that time, the
rate determined by the Facility Agent to be the arithmetic
mean of the rates expressed as a percentage per annum (rounded
up (if necessary) to 4 decimal places), at which deposits:
(i) denominated in United States Dollars;
(ii) for the same or a comparable amount;
(iii) for a period equal or comparable to that
period; and
(iv) for value on the first day of that period,
are offered to the Facility Agent by prime banks, in the
interbank market selected by it, at or about 11.00 am (local
time in the place of that market) 2 Banking Days in the place
of that market before the first day of that period.
34.
"WHOLLY-OWNED SUBSIDIARY" means a company the entire issued share
capital of which is beneficially owned by the Parent (either directly
or indirectly through other Wholly-Owned Subsidiaries).
1.2 RULES FOR INTERPRETING THIS DOCUMENT, THE FACILITY AGREEMENTS AND
DEBENTURE TRUST DEED
In this document, the Facility Agreements and the Debenture Trust Deed,
headings are for convenience only, and do not affect interpretation.
The following rules also apply in interpreting this document, the
Facility Agreements and the Debenture Trust Deed, except where the
context makes it clear that a rule is not intended to apply.
(a) A reference to:
(i) legislation (including subordinate
legislation) is to that legislation as
amended, re-enacted or replaced, and
includes any subordinate legislation issued
under it;
(ii) a document or agreement, or a provision of a
document or agreement, is to that document,
agreement or provision as amended,
supplemented, replaced or novated;
(iii) a party to this document, to a Facility
Agreement, to the Debenture Trust Deed or to
any other document or agreement includes a
permitted substitute or a permitted assign
of that party;
(iv) a person includes any type of entity or body
of persons, whether or not it is
incorporated or has a separate legal
identity, and any executor, administrator or
successor in law of the person; and
(v) anything (including a right, obligation or
concept) includes each part of it.
(b) A singular word includes the plural, and vice versa.
(c) A word which suggests one gender includes the other genders.
(d) If a word is defined, another part of speech has a
corresponding meaning.
(e) If an example is given of anything (including a right,
obligation or concept), such as by saying it includes
something else, the example does not limit the scope of that
thing.
(f) The word "AGREEMENT" includes an undertaking or other binding
arrangement or understanding, whether or not in writing.
(g) The term "ARM'S LENGTH BASIS" means on terms that are fair and
reasonable and:
(i) no less favourable to the relevant Group
Member than could reasonably be expected to
apply in a comparable transaction with a
35.
person which is not an affiliate of it where
neither party is under any compulsion to
enter into the transaction; and
(ii) no more favourable to such other person than
could reasonably be expected to apply in a
comparable transaction with a person which
is not its affiliate where neither party is
under any compulsion to enter into the
transaction.
(h) The "PROPERTY" of a person is a reference to the whole or any
part of its business, undertaking, property, intellectual
property, shares, securities, debts, accounts, revenues
(including any right to receive revenues), intangible assets,
goodwill, shareholdings and uncalled capital including premium
whenever acquired, and any other assets whatsoever.
(i) The term "DISPOSAL" includes any sale, assignment, exchange,
transfer, concession, loan, lease, surrender, licence,
reservation, waiver, compromise, release, dealing, parting
with possession, or the granting of any option, right or
interest whatever, or any agreement for any of the same, and
"DISPOSE" means to make a disposal, and "ACQUISITION" and
"ACQUIRE" are construed accordingly.
(j) The term "RELATED BODY CORPORATE" has the same meaning as in
the Corporations Act 2001.
1.3 BUSINESS DAYS
If the day on or by which a person must do something under this
document, a Facility Agreement or the Debenture Trust Deed is not a
Business Day:
(a) if the act involves a payment that is due on demand, the
person must do it on or by the next Business Day;
(b) if the act involves a payment that is not due on demand, the
person must do it either:
(i) on or by the next Business Day; or
(ii) if the next Business Day occurs in the next
calendar month or after the Termination
Date, on or by the previous Business Day;
and
(c) in any other case, the person must do it on or by the previous
Business Day.
1.4 SUBSCRIBER AFFILIATES
(a) Subject to paragraph (d), a Subscriber may nominate, in a
Facility Agreement, in a Substitution Certificate or by notice
to the Parent and the Facility Agent at any time, that its
Share of Funding Portions to a particular Borrower be provided
by a related body corporate of the Subscriber (or, if a
related body corporate is already nominated for that Borrower,
through a different related body corporate or through its own
branch).
36.
(b) If a Subscriber elects that its Share of Funding Portions to a
particular Borrower are to be provided through a related body
corporate as contemplated by paragraph (a), the Subscriber
must procure that the related body corporate does so as
required by the relevant Facility Agreement.
(c) If a Subscriber Affiliate of a Subscriber provides a Share of
Funding Portions as contemplated by paragraph (a):
(i) the parties to this document must comply
with their payment obligations under the
Transaction Documents in favour of the
Subscriber Affiliate as if the Subscriber
Affiliate were itself a Subscriber in
relation to those Funding Portions;
(ii) the Subscriber may exercise the
corresponding rights under the Transaction
Documents on behalf and for the benefit of
the Subscriber Affiliate; and
(iii) the Subscriber must ensure that the
Subscriber Affiliate complies with this
document and the Facility Agreements as if
it were itself a Subscriber in relation to
those Funding Portions.
(d) A Subscriber may only nominate a related body corporate under
paragraph (a) if it is able to make the representation in
clause 3.13 in relation to the related body corporate.
(e) The nomination by a Subscriber of a Subscriber Affiliate in
relation to a Borrower does not release the Subscriber from
its Commitments or other obligations under this document or a
Facility Agreement, except to the extent that the Subscriber
Affiliate actually performs such an obligation as contemplated
by this subclause.
(f) The parties acknowledge that a Subscriber will enter into such
intragroup arrangements (including, potentially, the giving of
intragroup guarantees) as it requires to enable it to provide
its Share of Funding Portions to the different Borrowers. It
must do so at its own cost.
(g) A Subscriber may nominate by notice to the Parent and the
Facility Agent at any time that, in relation to any Treasury
Transaction to be entered into by a Borrower, the Treasury
Transaction be made with a related body corporate of the
Subscriber rather than with the Subscriber (or, if a related
body corporate is already nominated for that Borrower, with a
different related body corporate). The parties to this
document acknowledge that a Subscriber Affiliate which is a
party to the Treasury Transaction with a Borrower is a
beneficiary of the trust declared by the Facility Agent in
clause 14.3.
1.5 RIGHTS AND OBLIGATIONS OF THE SUBSCRIBERS AND THE FACILITY AGENT
(a) The rights and obligations of the Subscribers and the Facility
Agent under the Transaction Documents are several, and none of
them is responsible for any act or omission of the others.
37.
(b) If a Subscriber fails to perform any of its obligations under
a Transaction Document, or notifies the Facility Agent that it
will not perform any of those obligations, this does not
relieve any other party of any of its obligations under any
Transaction Document.
(c) Subject to this document, each Subscriber and the Facility
Agent may separately enforce its rights under each Transaction
Document.
1.6 PARENT TO REPRESENT GROUP PARTIES
Each Group Party irrevocably authorises the Parent and each Authorised
Representative of the Parent to exercise that Group Party's rights and
perform that Group Party's obligations under the Transaction Documents,
and agrees that it is bound by anything that the Parent or an
Authorised Representative of the Parent does or purports to do on its
behalf.
1.7 CHANGES IN GAAP
The parties acknowledge that changes in GAAP after the date of this
document may make the operation of clauses 5.3(d) and 5.4, a defined
term in clause 1.1, or another clause in this document or a Facility
Agreement that refers to GAAP, inappropriate. If the Parent or the
Facility Agent considers that this has occurred and notifies the other
of them to that effect (the "Notification Date"), the Parent and the
Facility Agent agree to negotiate with each other in good faith to
attempt to agree to appropriate amendments to the affected clause or
definition. The Facility Agent must do so on the instructions of a
Majority of Subscribers. If the Parent and the Facility Agent fail to
agree on the appropriate amendments to the affected clause or
definition within 20 Business Days of the Notification Date then the
Parent's compliance with such affected clause or definition shall be
determined on the basis of GAAP in effect immediately before the
relevant change in GAAP became effective, until such notification is
withdrawn or such clause or definition is amended in a manner
satisfactory to the Parent and the Facility Agent (acting on the
instructions of Majority of Subscribers).
2. CONDITIONS PRECEDENT TO ALL FACILITIES
2.1 CONDITIONS PRECEDENT
(a) The Parent may not deliver the first Drawdown Notice under
either Facility Agreement until it has provided the Facility
Agent with the items listed in part A of schedule 3-1, in form
and substance satisfactory to the Facility Agent or the
Facility Agent has waived the condition to deliver any of the
terms listed in part A of schedule 3-1.
(b) No Subscriber is obliged to provide its Share of any Funding
Portion unless the Parent has provided the Facility Agent with
the items listed in part B of schedule 3-1, in form and
substance satisfactory to the Facility Agent.
2.2 PREPOSITIONING OF FUNDS FOR THE FIRST DRAWDOWN
(a) The Subscribers acknowledge that they may be asked to
preposition funds for the Funding Portions to be provided on
the first Drawdown Date, in accordance with
38.
the Escrow Deed, before all conditions precedent to the
provision of those Funding Portions have been satisfied. The
Subscribers agree to do this in accordance with the Escrow
Deed.
(b) The Borrowers acknowledge the contents of the Escrow Deed and
agree that Funding Portions will be taken to have been made to
them in accordance with the procedures set out in that
document.
(c) The Parent and the Borrowers acknowledge, even though some of
the funds that the Subscribers preposition with the Facility
Agent may be converted into other currencies in accordance
with the Escrow Deed, that those funds (and any Funding
Portions that are taken to be made with those funds in
accordance with the Escrow Deed) are taken for all purposes of
this document and the relevant Facility Agreement to have been
provided to the Borrowers in the currency in which the
Subscribers were requested to provide those funds under the
relevant Drawdown Notice.
3. PAYMENTS
3.1 HOW PAYMENTS MUST BE MADE
(a) Each Borrower must make each payment under this document or a
Facility Agreement by 1.00pm (local time in the place of
receipt), by direct transfer of cleared funds to the credit of
the account that the Facility Agent nominates at least 3
Business Days before the payment is made (whether or not in
the country of issue of the currency in which any relevant
Funding Portion is denominated).
(b) Each Borrower must make each payment under this document or a
Facility Agreement without any set-off or counterclaim and (to
the extent permitted by law) free and clear of, and without
deduction or withholding for or on account of, any Taxes
(other than Excluded Taxes).
3.2 FACILITY AGENT MUST DISTRIBUTE RECEIPTS
Unless this document or a Facility Agreement provides otherwise, each
payment that a Borrower makes to the Facility Agent is made for the
account of the Subscribers entitled to that payment, and the Facility
Agent must distribute each amount that it receives for the account of
one or more Subscribers in accordance with their entitlements:
(a) by direct transfer of cleared funds to the credit of the
account that the Subscriber nominates at least 1 Business Day
before the payment is made; and
(b) if the Facility Agent receives the payment by 1.00 pm (local
time in the place of receipt) on a Banking Day in the place of
receipt, on the day the Facility Agent receives it or, if the
Facility Agent receives it after that time, by the next
Banking Day.
3.3 FACILITY AGENT ONLY OBLIGED TO DISTRIBUTE ACTUAL RECEIPTS
The Facility Agent is not obliged to pay any amount to, or on behalf
of, any party (the "RECEIVING PARTY") until it is satisfied that it has
received that amount from the party
39.
obliged to pay it (the "PAYING PARTY"). However, the Facility Agent may
assume that the amount has been, or will be, paid to it in accordance
with this document or the relevant Facility Agreement. If the Facility
Agent pays an amount to, or on behalf of, a Receiving Party, but
determines later that it had not already received that amount from the
Paying Party:
(a) the Receiving Party must refund or reimburse that amount to
the Facility Agent on demand; and
(b) the Receiving Party or (at the option of the Facility Agent)
the Paying Party, must indemnify the Facility Agent against,
and must pay the Facility Agent (for its own account) on
demand the amount of, all losses, liabilities, expenses and
Taxes (other than Excluded Taxes) that the Facility Agent
incurs because it paid that amount before it received it.
3.4 EFFECT OF PAYMENT TO FACILITY AGENT
Subject to this document, a payment by a Group Party to a Subscriber,
or to the Facility Agent for the account of a Subscriber, satisfies the
Group Party's obligation to that Subscriber except to the extent that:
(a) that Subscriber is obliged to share the payment with another
party in accordance with this document; or
(b) the Facility Agent or that Subscriber is obliged to refund the
payment under any applicable law (whether relating to
insolvency or otherwise).
3.5 APPLICATION OF MONEY
(a) If any amount that the Facility Agent receives is not
sufficient to satisfy all the outstanding obligations of the
Group Parties to the Facility Agent in that capacity and to
the Subscribers under each Transaction Document, the amount is
to be applied in the following order:
(i) first in payment to the Facility Agent and
the Subscribers of amounts due to them under
clause 10;
(ii) then in payment to the Subscribers of
interest due under a Facility Agreement;
(iii) then in payment to the Facility Agent of
fees due to it for its own account;
(iv) then in repayment to the Subscribers of the
principal amount of outstanding Funding
Portions by reducing the Paid Up Amount of
Debentures then due; and
(v) then in payment to the Facility Agent and
the Subscribers of any other amounts due
under the Transaction Documents,
in each case (if necessary) rateably in accordance with their
entitlements.
40.
(b) If the Facility Agent is required to apply money in accordance
with paragraph (a) towards payment of obligations that are
future or contingent, or have accrued but are payable at a
future time, it must withhold a corresponding proportion of
that money until:
(i) the obligation becomes actually due for
performance; or
(ii) in the case of future or contingent
obligations, it is satisfied that the
obligation will not become actually due for
performance,
and at that time the Facility Agent must apply the relevant
amount in accordance with paragraph (a).
3.6 DEDUCTIONS AND WITHHOLDINGS BY GROUP PARTIES
If at any time an applicable law obliges a Group Party to make a
deduction or withholding in respect of Taxes from a payment under a
Transaction Document, the Parent:
(a) must notify the Facility Agent of the obligation promptly
after any Group Party becomes aware of it;
(b) must ensure that the deduction or withholding does not exceed
the minimum amount required by law;
(c) must pay to the relevant Government Agency on time the full
amount of the deduction or withholding and promptly deliver to
the Facility Agent a copy of any certified receipt,
certificate or other proof of payment; and
(d) unless the Tax is an Excluded Tax, must indemnify (or ensure
that the relevant Group Party indemnifies) the party entitled
to the payment against the deduction or withholding by paying
(or ensuring that the relevant Group Party pays) to that
party, at the time that the payment to that party is due, an
additional amount that ensures that, after the deduction or
withholding is made, that party receives a net sum equal to
the sum that it would have received if the deduction or
withholding had not been made.
3.7 DEDUCTIONS AND WITHHOLDINGS BY OR AFFECTING THE FACILITY AGENT OR A
SUBSCRIBER
(a) If at any time an applicable law obliges the Facility Agent to
make a deduction or withholding in respect of Taxes from a
payment by it under a Transaction Document to a party other
than a Group Member:
(i) the Facility Agent must notify the Parent of
the obligation promptly after the Facility
Agent becomes aware of it;
(ii) the Facility Agent must ensure that the
deduction or withholding does not exceed the
minimum amount required by law;
(iii) the Facility Agent must pay to the relevant
Government Agency on time the full amount of
the deduction or withholding and promptly
41.
deliver to that party a copy of any
certified receipt, certificate or other
proof of payment; and
(iv) unless the Tax is an Excluded Tax, the
Parent (or at the Parent's direction the
relevant Group Party), must indemnify that
party against the deduction or withholding
by paying to the Facility Agent (for the
account of that party), at the time that the
payment is due, an additional amount that
ensures that, after the deduction or
withholding is made, the party receives a
net sum equal to the sum that it would have
received if the deduction or withholding had
not been made.
(b) If at any time an applicable law obliges the Facility Agent or
a Subscriber to pay Taxes (other than Excluded Taxes) as a
result of the failure of a Group Party to make a deduction or
withholding in respect of Taxes on account of a payment under
a Transaction Document, or as a result of the application of
the United States "conduit financing arrangement" rules
(Treasury Regulation 1.881-3) or similar provisions of
non-U.S. law, then:
(i) the Facility Agent or Subscriber must notify
the Parent of the obligation promptly after
becoming aware of the obligation;
(ii) the Facility Agent or Subscriber must ensure
that the Tax liability does not exceed the
minimum amount required by law;
(iii) the Facility Agent or Subscriber must pay to
the relevant Government Agency on time the
full amount of the Tax and promptly deliver
to the Parent a copy of any certified
receipt, certificate or other proof of
payment; and
(iv) the Parent (or at the Parent's direction the
relevant Group Party) must indemnify the
Facility Agent or Subscriber against the Tax
by paying the Facility Agent or Subscriber,
at the time that the Tax is due, an
additional amount that ensures that the
Facility Agency or Subscriber retains, on an
after-Tax basis, the amount that it would
have retained had the Tax not been payable.
3.8 CURRENCY OF PAYMENTS
Each Group Party must pay each amount required to be paid by it under
this document or a Facility Agreement in the currency in which that
amount is denominated.
3.9 CURRENCY INDEMNITY
If, for any reason (including as a result of a judgment or order), an
amount payable by a Group Party under or in respect of a Transaction
Document (the "RELEVANT AMOUNT") is received by the Facility Agent or a
Subscriber in a currency (the "PAYMENT CURRENCY") that is not the
currency in which the amount is expressed to be payable under the
relevant Transaction Document (the "REQUIRED CURRENCY") then the
relevant Group Party, as an independent obligation, must indemnify
against, and must pay the relevant payee on demand the amount of, any
shortfall between:
42.
(a) the amount of Required Currency which the relevant payee
receives on converting the amount it received in the Payment
Currency into an amount in the Required Currency in accordance
with its usual practice; and
(b) the Relevant Amount in the Required Currency.
3.10 REPAYMENT FOLLOWING EXCHANGE RATE FLUCTUATIONS
(a) If:
(i) as a result of exchange rate fluctuations,
the sum of the AUD Equivalent of each
outstanding Funding Portion is greater for
any 4 consecutive Business Days than 110% of
the AUD Facility Cap on those days; and
(ii) a Subscriber so instructs the Facility
Agent,
the Facility Agent must notify the Parent (the day on which it
does so being the "NOTIFICATION DATE"), and the Parent must
ensure that Borrowers, on the day that falls 5 Business Days
after the Notification Date:
(iii) prepay Funding Portions (as selected by the
Parent or, if the Parent makes no selection,
by the Facility Agent) by reducing the
aggregate Paid Up Amount of all Debentures,
in the currency of the relevant Funding
Portion, by the aggregate amount that is
necessary to reduce the AUD Equivalent
(calculated using the Spot Rate on the
Notification Date) of all outstanding
Funding Portions to an amount that is no
greater than the AUD Facility Cap (or such
other amount as the Parent and the Facility
Agent (acting on instructions of all the
Subscribers) may agree); and
(iv) pay all amounts payable under clause 10.1(e)
in relation to those repayments or
reductions.
(b) If Borrowers switch Funding Portions under clause 6 of the
Term A Facility Agreement so that, on the relevant Switch
Date, the AUD Equivalent of Funding Portions that are
denominated in Euro is greater than 25% of the AUD Equivalent
of all outstanding Funding Portions, the Subscribers agree to
consider in good faith a request from the Parent to
restructure the operation of paragraph (a) so that it only
applies in relation to Funding Portions that are not
denominated in Euro, on the basis that the AUD Facility Cap
reduces accordingly.
(c) The Facility Agent agrees with the Subscribers that it will
monitor the AUD Equivalent of outstanding Funding Portions and
will advise the Subscribers if the sum of the AUD Equivalent
of each outstanding Funding Portion is greater for any 4
consecutive Business Days than 110% of the AUD Facility Cap on
those days, as contemplated by paragraph (a)(i).
43.
3.11 DEFAULT INTEREST
(a) The Parent and each other Group Party must pay interest on
each amount that it does not pay under or in connection with a
Transaction Document when due, from (and including) the day on
which it falls due to (but excluding) the day on which it is
paid in full, at the rate calculated in accordance with
paragraph (b). This interest must be paid on demand.
(b) Interest on an unpaid amount in any currency accrues each day
in a Default Interest Period at the Default Rate for that
currency for that Default Interest Period, and is capitalised
(if not paid) on the last day of that Default Interest Period.
(c) This subclause does not affect the Parent's or any other Group
Party's obligation to pay each amount under this document when
it is due.
(d) If a liability of the Parent or any other Group Party becomes
merged in a judgment or order, the Parent or that Group Party,
as an independent obligation, must pay interest on the amount
of that liability, from (and including) the date of the
judgment or order until it is paid in full, at the higher of
the rate that applies under the judgment or order and the rate
calculated in accordance with this subclause.
(e) Interest under this clause:
(i) accrues daily; and
(ii) is calculated on the basis of:
(A) the actual number of days on which
interest has accrued; and
(B) either a 360 or 365 day year,
depending on the basis that the
Facility Agent decides is generally
accepted as appropriate in relation
to the currency in which the
relevant amount is denominated.
3.12 GROUP PARTIES TO NOTIFY THE FACILITY AGENT OF PAYMENTS
If a Group Party makes a payment under this document or a Facility
Agreement direct to a Subscriber, the Parent must advise the Facility
Agent within 1 Business Day of the identity of the payer and the payee,
the amount of the payment and the obligation to which the payment
relates.
3.13 REPRESENTATION BY THE SUBSCRIBERS
Each Subscriber separately represents to the Parent that it will
provide (or procure that a Subscriber Affiliate provides) its Share of
a Funding Portion to a Borrower through the relevant Lending Office as
part of carrying on business in the jurisdiction in which the Lending
Office is located at or through a permanent establishment in that
jurisdiction.
4. REPRESENTATIONS AND WARRANTIES
4.1 LEGAL REPRESENTATIONS AND WARRANTIES
44.
The Parent represents and warrants to the Facility Agent, the
Subscribers (including any Subscriber Affiliate) and the Arrangers, in
respect of itself and separately in respect of each Borrower and each
other Subsidiary, as of the date of this document and as of the first
Drawdown Date, that, except as disclosed in schedule 11 or as
contemplated by clause 5.8:
(a) (STATUS) it:
(i) is a corporation duly established (and, in
the case of a corporation incorporated in
the United States of America, validly
existing and in good standing), under the
laws of its country and (where relevant)
state, province, canton, territory or
similar political subdivision of its place
of incorporation; and
(ii) is duly qualified or licensed and (where the
concept has a technical meaning) in good
standing as a foreign corporation (or other
entity) in each other jurisdiction in which
it owns or leases property or in which the
conduct of its business requires it so to
qualify or be licensed;
(b) (POWER) it has full legal capacity and power to:
(i) own or lease and operate its property and to
carry on its business; and
(ii) enter into the Transaction Documents and to
carry out the transactions that they
contemplate;
(c) (AUTHORITY) it has taken all corporate or other action that is
necessary to authorise its entry into the Transaction
Documents and its carrying out the transactions that they
contemplate;
(d) (AUTHORISATIONS) it holds each Authorisation that is necessary
to:
(i) enable it to properly execute the
Transaction Documents and to carry out the
transactions that they contemplate;
(ii) ensure that each Transaction Document is
legal, valid, binding and admissible in
evidence; or
(iii) enable it to properly carry on its business,
and it is complying with any conditions to which any of these
Authorisations is subject;
(e) (DOCUMENTS EFFECTIVE) each Transaction Document to which it is
expressed to be a party constitutes its legal, valid and
binding obligations, enforceable against it in accordance with
its terms (except to the extent limited by equitable
principles and laws affecting creditors' rights generally)
subject to any necessary stamping or registration;
(f) (RANKING) its payment obligations under each Transaction
Document with respect to its rights against collateral secured
under the Securities rank ahead of all its
45.
unsecured and unsubordinated payment obligations (whether
present or future, actual or contingent), other than
obligations that are mandatorily preferred by law;
(g) (NO CONTRAVENTION) neither its execution of the Transaction
Documents nor the carrying out by it of the transactions that
they contemplate, does or will:
(i) contravene any law to which it or any of its
property is subject or any order of any
Government Agency that is binding on it or
any of its property;
(ii) contravene any Authorisation;
(iii) contravene any undertaking or instrument
binding on it or any of its property;
(iv) contravene its constitution; or
(v) require it to make any payment or delivery
in respect of any Financial Indebtedness
before it would otherwise be obliged to do
so;
(h) (NO FILINGS OR TAXES) it is not necessary or desirable, to
ensure that any Transaction Document is legal, valid, binding
or admissible in evidence, that any Transaction Document or
any other document be filed or registered with any Government
Agency (other than any filings that are to be made in
connection with the contemplated execution of any New Security
Documents or other filings disclosed in the legal opinions
referred to in schedule 3-1 Part B on or around the first
Drawdown Date), or that any Taxes be paid;
(i) (EFFECTIVENESS OF THE SECURITIES) each Security to which it is
expressed to be a party constitutes a valid perfected
first-priority Security Interest in accordance with its terms
over the property to which it is expressed to apply;
(j) (CORPORATE BENEFIT) it benefits from entering into the
Transaction Documents;
(k) (NO TRUST) it has not entered and is not entering into any
Transaction Document as trustee of any trust or settlement;
(l) (OWNERSHIP OF ASSETS) it is the legal and beneficial owner of
the property identified as belonging to it in the most recent
financial statements provided to the Facility Agent;
(m) (NO INSOLVENCY EVENT) no Insolvency Event has occurred and is
continuing in relation to it;
(n) (NO ENCUMBRANCE) none of its property is subject to an
Encumbrance other than a Permitted Encumbrance;
(o) (NO CONTROLLER) no Controller is currently appointed in
relation to any of its property;
46.
(p) (NO LITIGATION) no litigation, arbitration, mediation,
conciliation or administrative proceedings are taking place,
pending, or to the knowledge of any of its officers after due
inquiry, threatened which, if adversely decided, could have a
Material Adverse Effect;
(q) (ENVIRONMENTAL COMPLIANCE) it is in full compliance in all
material respects with all Environmental Laws applicable to
it, its business or its property; and
(r) (HIGH YIELD NOTES) the Financial Indebtedness incurred by it
under the Transaction Documents constitutes and is designated
as "Designated Senior Indebtedness" under and as defined in
the High Yield Note Indenture and the New High Yield Notes
Indenture.
4.2 ADDITIONAL REPRESENTATIONS AND WARRANTIES BY THE PARENT
The Parent also represents and warrants to the Facility Agent, the
Subscribers (including any Subscriber Affiliate) and the Arrangers, as
of the date of this document and as of the first Drawdown Date that,
except as described in schedule 11:
(a) (GROUP STRUCTURE) the most recent Group Structure Chart as at
the date it was delivered to the Facility Agent was a complete
and accurate description of all entities that are Group
Members and of the ownership relationships between them, so
that (for example):
(i) it includes full details of the jurisdiction
in which each Group Member is incorporated;
(ii) in the case of any Group Member that is not
a Wholly-Owned Subsidiary, it accurately
describes the percentage of its ordinary
issued share capital (rounded to the nearest
5%) which, at the date of this document, is
beneficially owned by the Parent or any
other Group Member; and
(iii) it accurately describes any equity
instruments or entitlements to equity
instruments that any Group Member has issued
as at the date of this document to any
person who is not a Group Member;
(b) (ACCOUNTS):
(i) the most recent Accounts that it has given
to the Facility Agent have been prepared in
accordance with the laws of Australia and
(unless inconsistent with those laws) GAAP;
(ii) the most recent Accounts that it has given
to the Facility Agent give a true and fair
view of the financial condition of it and
the Group as at the date to which they are
made up and of the results of operations of
it and the Group for the period that they
cover (it being understood that the Accounts
provided pursuant to clause 5.2(b) need not
qualify as "true and fair" for the purposes
of GAAP); and
47.
(iii) there has been no change since the date of
the most recent Accounts that it has given
to the Facility Agent that could have a
Material Adverse Effect;
(c) (IM AND OTHER INFORMATION):
(i) the contents of any information memorandum
that the Parent approves for use in the
syndication of the Facilities, and any other
written information and reports that it has
given to the Lead Arranger and Underwriter
or the Facility Agent (whether before or
after this document was executed) in
connection with any Transaction Document
(but not information in connection with
Goodman and its Subsidiaries prior to
Goodman becoming a Wholly-Owned Subsidiary
of the Parent), are true, complete and
accurate in all material respects and not
misleading in any material respect
(including by omission), subject to any
qualifications in them and except to the
extent that the information or report has
been superseded by later written information
or a later written report provided to the
Lead Arranger and Underwriter or the
Facility Agent by the Parent;
(ii) any forecasts and projections (but not
projections in connection with Goodman and
its Subsidiaries prior to Goodman becoming a
Wholly-Owned Subsidiary of the Parent and
not extrapolations) in them, taken in
context and subject to the detailed terms of
the relevant information or report have been
prepared in good faith based upon what the
Parent believes to be reasonable assumptions
(it being understood that such forecasts and
projections are subject to significant
uncertainties and contingencies, many of
which are beyond the Parent's control and
the Parent can give no assurance that the
forecasts and projections will be realised);
and
(iii) any opinions in them (other than opinions
prepared by external advisers), taken in
context and subject to the detailed terms of
the relevant information or report, are fair
and reasonable and were formed after due
inquiry and consideration by appropriate
officers,
as at the date of this document or, if given later, when
given;
(d) (DISCLOSURE OF RELEVANT INFORMATION) it has disclosed to the
Facility Agent and each Subscriber all the information that
such parties have requested as being material to an assessment
by that party of the risks that that party assumes by entering
into any Transaction Document; and
(e) (NO DEFAULT OR REVIEW EVENT) no:
(i) Event of Default;
(ii) Potential Event of Default; or
(iii) Review Event,
48.
has occurred and is continuing, and no Group Party is in
breach of any other document or agreement in a manner that
could have a Material Adverse Effect.
4.3 US SPECIFIC REPRESENTATIONS AND WARRANTIES
The Parent and each US Obligor represents and warrants to the Facility
Agent, the Subscribers (including any Subscriber Affiliate) and the
Arrangers that:
(a) neither BP US nor any ERISA Subsidiary has incurred:
(i) any unsatisfied "accumulated funding
deficiency" within the meaning of section
412 of the Code, and section 302 of ERISA,
whether or not waived, with respect to an
Employee Benefit Plan;
(ii) any unsatisfied liability to the Pension
Benefit Guaranty Corporation established
under ERISA (other than for Pension Benefit
Guaranty Corporation insurance premiums
payable in the ordinary course), or under
Title IV of ERISA, in connection with any
Employee Benefit Plan terminated,
established or maintained by it; or
(iii) any unsatisfied withdrawal liability in
connection with a complete or partial
withdrawal from a multiemployer plan within
the meaning of section 3(37) of ERISA, or
expects to withdraw from such a plan,
nor has BP US or any of its Subsidiaries had any tax or
penalty assessed against it by the United States Internal
Revenue Service or United States Department of Labor for any
alleged violation under section 4975 of the Code or section
404 or 406 of ERISA;
(b) none of BP US, any of its Subsidiaries or any Group Member is
a party in interest (as defined in section 3(14) of ERISA) or
a disqualified person (as defined in section 4975(e)(2) of the
Code) with respect to any Employee Benefit Plan, other than an
Employee Benefit Plan sponsored by BP US or another member of
BP US or any other entity treated as a single employer with
respect to BP US under section 414(b), (c), (m) or (o) of the
Code for the benefit of the employees of BP US, such other
entities or Nutrition 21, Inc;
(c) each Employee Benefit Plan and Foreign Pension Plan has been
maintained in substantial compliance with its terms and with
the requirements of any and all applicable laws, statutes,
rules, regulations and orders, including those which must be
complied with to obtain the most favourable tax advantages and
has been maintained in good standing with applicable
regulatory authorities and the level of plan assets in each
Employee Benefit Plan exceeds the liabilities under each such
Plan that is subject to section 412 of the Code or section 302
of ERISA (based on the assumptions used to fund such Plan), as
of the date of the most recent financial statements reflecting
those amounts;
(d) each location in the United States at which a US Obligor has
equipment, inventory or real property with an aggregate fair
market value equal to or greater than $1,000,000 is specified
in schedule 8 for that US Obligor;
49.
(e) no part of the proceeds of any Funding Portion will be used,
whether directly or indirectly, and whether immediately,
incidentally or ultimately, for any purpose that entails a
violation of, or that is inconsistent with, the provisions of
the Regulations of the Board of Governors of the Federal
Reserve System of the United States, including Regulation U or
X; and
(f) neither the Parent nor any of its Subsidiaries is:
(i) an "investment company" as defined in, or subject to
regulation under, the United States Investment
Company Act of 1940; or
(ii) a "holding company" as defined in, or subject to
regulation under, the United States Public Utility
Holding Company Act 1935.
4.4 REPETITION OF REPRESENTATIONS AND WARRANTIES
The representations and warranties in this clause (other than clauses
4.1 (d), (e), (g), (i), (m), (n), (o), (p) or (q) or clause 4.2(a) and
in the case of each Rollover Date, Switch Date and Interest Payment
Date, clause 4.2(e)(ii) or (e)(iii)) are taken to be repeated on each
Drawdown Date (other than the first Drawdown Date), each Rollover Date,
each Switch Date and each Interest Payment Date, on the basis of the
facts and circumstances as at that date (or, in the case of clause
4.2(c), as at the dates contemplated by that clause, provided that the
representation and warranty in clause 4.2(c)(i) in respect of any
information memorandum will not be taken to be repeated after the
earlier of:
(a) the date the Lead Arranger and Underwriter notifies the Parent
that the syndication of the Facilities is complete; and
(b) 9 months from the first Drawdown Date under the Facilities,
unless the Lead Arranger and Underwriter requests an extension
to this date which is approved by the Parent (such approval
not to be unreasonably withheld or delayed), in which case 12
months from the Drawdown Date under the Facilities.
4.5 RELIANCE ON REPRESENTATIONS AND WARRANTIES
Each Group Party acknowledges that the other parties have executed the
New Transaction Documents and agreed to take part in the transactions
that the New Transaction Documents contemplate in reliance on the
representations and warranties that are made or repeated in this
clause.
4.6 NO REPRESENTATIONS TO THE GROUP PARTIES
Each Group Party acknowledges that it has not relied and will not rely
on any representation, statement or promise made by or on behalf of any
other party in deciding to enter into any Transaction Document or to
exercise any right or perform any obligation under any Transaction
Document.
4.7 ACKNOWLEDGMENT OF FOREIGN CURRENCY RISKS
(a) The Parent and each Borrower represents and warrants to each
Arranger, the Facility Agent and the Subscribers (including
any Subscriber Affiliate) it is fully
50.
aware of the risks involved when a Borrower draws a Funding
Portion (including the risk that exchange rate fluctuations
may cause the AUD Equivalent of a Funding Portion to become
significantly greater than the AUD Equivalent as at the
Drawdown Date, Rollover Date or Switch Date for that Funding
Portion).
(b) The Parent and each Borrower agrees that the Arrangers, the
Facility Agent and the Subscribers (including any Subscriber
Affiliate) are not:
(i) responsible for monitoring or managing the
Group's exposure to exchange rate
fluctuations, or for advising any Group
Member of any fluctuations;
(ii) obliged to take any action in order to limit
that exposure; or
(iii) liable for any losses or liabilities that a
Borrower may incur by drawing a Funding
Portion in any currency.
5. UNDERTAKINGS
5.1 GENERAL UNDERTAKINGS
The Parent must:
(a) (MAINTAIN STATUS) maintain, and ensure that each of its
Subsidiaries maintains, its corporate existence except, in the
case of an Excluded Subsidiary, to the extent that it is
Liquidated in accordance with clause 5.8;
(b) (COMPLY WITH LAW) comply with, and ensure that each of its
Subsidiaries complies with, all applicable law including by
paying when due all Taxes for which it or any of its property
is assessed or liable (except to the extent that these are
being diligently contested in good faith and by appropriate
proceedings and it or the relevant Subsidiary has made
adequate reserves for them);
(c) (ENVIRONMENTAL COMPLIANCE) either:
(i) comply, and ensure that each Subsidiary
complies, in all material respects with all
Environmental Laws applicable to it, its
business or its property including (at its
cost) obtaining all necessary Authorisations
for the conduct of its business; or
(ii) be working in accordance with an approved
plan with applicable Government Agencies to
remedy any non-compliance with paragraph
(c)(i);
(d) (PROSPECTIVE ENVIRONMENTAL ISSUES) undertake action in
accordance with sound business practices to address any actual
or prospective environmental issue in relation to a Group
Member, its business or property to ensure that it does not
develop into a breach of an Environmental Law;
51.
(e) (KEEP BOOKS) keep, and ensure that each Subsidiary keeps,
proper books of account recording its activities, and permit
the Facility Agent or its representatives on request to
examine and take copies of them;
(f) (HOLD AUTHORISATIONS) obtain and maintain, and ensure that
each Subsidiary obtains and maintains, each Authorisation that
is necessary to:
(i) enable it to properly execute the
Transaction Documents and to carry out the
transactions that they contemplate;
(ii) ensure that each Transaction Document is
legal, valid, binding and admissible in
evidence; or
(iii) enable it to properly carry on its business,
and must comply with any conditions to which any of these
Authorisations is subject except, in the case of an Excluded
Subsidiary, to the extent that it is Liquidated in accordance
with clause 5.8;
(g) (KEEP DOCUMENTS EFFECTIVE) ensure that each Transaction
Document to which a Group Member is expressed to be a party
remains the legal, valid and binding obligation of that Group
Member, enforceable against it in accordance with its terms
(except to the extent limited by equitable principles and laws
affecting creditors' rights generally);
(h) (NO CONTRAVENTION) ensure that neither the execution by a
Group Member of the Transaction Documents nor the carrying out
by any Group Member of the transactions that the Transaction
Documents contemplate:
(i) contravenes any law to which a Group Member
or any of its property is subject or any
order of any Government Agency that is
binding on a Group Member or any of its
property;
(ii) contravenes any Authorisation;
(iii) contravenes any undertaking or instrument
binding on any Group Member or any of its
property;
(iv) contravenes the constitution of any Group
Member; or
(v) requires any Group Member to make any
payment or delivery in respect of any
Financial Indebtedness before it would
otherwise be obliged to do so;
(i) (KEEP SECURITIES EFFECTIVE) ensure that each Security
constitutes a valid perfected first-priority Security Interest
in accordance with its terms over the property to which it is
expressed to apply;
(j) (INSURANCE) keep, and must ensure that each Subsidiary keeps,
its property and business insured:
52.
(i) against the risks and in the amounts that
are prudent or usual for a person conducting
a business similar to the relevant entity,
with sound and reputable insurers; or
(ii) as the Facility Agent reasonably requires,
and must provide the Facility Agent on each anniversary of the
date of this document, or otherwise on request, with details
of the insurance, evidence that it is in full effect and
evidence that all premiums have been paid, by providing the
Facility Agent on request with a certificate of currency from
a reputable insurance broker in relation to the Group's global
insurance policies, together with a report from that insurance
broker confirming that those policies comply with the
requirements of this paragraph;
(k) (NO ADMINISTRATOR) not appoint, and ensure that no Subsidiary
appoints, an administrator or other insolvency official
without at least 1 Business Day's prior notice to the Facility
Agent, except, in the case of an Excluded Subsidiary, as part
of a Liquidation in accordance with clause 5.8;
(l) (PERMITTED USE OF FUNDS) ensure that each Borrower applies all
Funding Portions made to it solely for the purposes specified
in the relevant Facility Agreement;
(m) (TERMS OF ASSOCIATE ARRANGEMENTS):
(i) use its best endeavours, to the extent that
the relevant contractual arrangements permit
it to do so, to prevent its Associates from
incurring Financial Indebtedness or
acquiring businesses or companies other than
as contemplated by clause 7.3(g); and
(ii) if it or a Group Member proposes to acquire
an Associate after the date of this
document:
(A) use its best endeavours in the
negotiation of the contractual
arrangements regarding the
Associate, in a manner that is
commercially realistic in the
context of that Associate and the
Group's proposed investment in it,
to ensure that it is able to
prevent that Associate from
incurring Financial Indebtedness or
acquiring businesses or companies
other than as contemplated by
clause 7.3(g); or
(B) to the extent that it is not able
to exercise the control
contemplated by paragraph
(m)(ii)(A) in relation to Financial
Indebtedness of the Associate,
ensure that there is no recourse
(including by way of Guarantee) to
any Group Member in relation to
that Financial Indebtedness.
5.2 REPORTS AND INFORMATION
The Parent must give the Facility Agent:
53.
(a) (ANNUAL ACCOUNTS) as soon as possible (and in any event within
90 days) after the end of each Financial Year, a set of its
audited Accounts (consolidated and unconsolidated) for that
Financial Year, prepared in accordance with the laws of
Australia and (except where inconsistent with those laws)
GAAP;
(b) (QUARTERLY ACCOUNTS) as soon as possible (and in any event
within 45 days) after the end of each Financial Quarter, a set
of its unaudited consolidated Accounts for that Financial
Quarter, prepared in accordance with the laws of Australia and
(except where inconsistent with those laws) GAAP, and
certified by a director or the chief financial officer of the
Parent as giving a true and fair view of the Group for that
Financial Quarter (but without requiring the Parent to include
the notes or disclosures that GAAP would otherwise require to
be provided with those Accounts in order for the Accounts to
qualify as "true and fair" for the purposes of GAAP);
(c) (COMPLIANCE CERTIFICATES) at the same time as it gives the
Facility Agent any Accounts under paragraph (a) or (b), a
certificate that:
(i) sets out each of the Debt Service Cover Ratio, the
Gearing Ratio, the Senior Debt Ratio, the Interest
Cover Ratio and the Senior Interest Cover Ratio for
the period of 12 months that ends on the day to which
those Accounts are prepared, together with such
details as are required to demonstrate the
calculation of those ratios;
(ii) sets out the amount of Capex that each Group Member
expended over the relevant period or that each Group
Member entered into an unconditional contractual
commitment over the relevant period, with a person
who is not a Group Member, to expend as Capex over
the period of 6 months following the end of the
period;
(iii) (A) in the case of a certificate that is given
at the same time as Accounts under paragraph
(a), is certified as correct by the
accounting firm that audited those Accounts;
and
(B) in the case of a certificate that is given
at the same time as Accounts under paragraph
(b), is certified as correct by a director
or the chief financial officer of the
Parent;
(d) (COPY OF REPORTS) a copy of each document that it gives to its
shareholders or to any stock exchange, at the same time as it
gives it to them or it;
(e) (NOTICE OF DEFAULT OR REVIEW EVENT) as soon as it becomes
aware that an Event of Default, Potential Event of Default or
Review Event has occurred, full details of that Event of
Default, Potential Event of Default or Review Event;
(f) (NOTICE OF LITIGATION) full details of any litigation,
arbitration, mediation, conciliation or administrative
proceeding which involves a claim exceeding AUD20,000,000 (or
its equivalent in any other currency) or which, if adversely
decided, could have a Material Adverse Effect, as soon as the
proceedings are commenced or threatened;
54.
(g) (OTHER INFORMATION) promptly on request (and in any event
within 5 Business Days) any other information relating to the
financial condition, business, property and affairs of itself
or any Group Member (including copies of internal management
reports, budgets and forecasts) that the Facility Agent
reasonably requests; and
(h) (GOODMAN INFORMATION) as soon as practicable following the
Parent obtaining access to the books and records and financial
information of Goodman and in any event within 90 days of
Goodman becoming a Wholly-Owned Subsidiary of the Parent, an
update to the due diligence reports prepared by KPMG in
respect of the Group dated 28 May 2001 and the update due
diligence report on Directors' Projections addressed to and
capable of being relied upon by the Facility Agent and the
Subscribers, the scope of such update to be as reasonably
required by the Facility Agent after consultation with the
Parent and to include the financial results of the Group for
the period ended 31 December 2002 together with 5 years of
financial projections which take into account the acquisition
of Goodman and its Subsidiaries; and
(i) (PROJECTIONS ) promptly on request (and in any event within 5
Business Days of the first Drawdown Date) pro forma
projections for the Parent and the Subsidiaries on a
consolidated basis, reasonably satisfactory to the Facility
Agent, for the period from and including the first Drawdown
Date to and including 30 June 2009, presented on a quarterly
basis for the first 12 months of such period and on a yearly
basis thereafter.
5.3 NEGATIVE UNDERTAKINGS
The Parent must:
(a) (NEGATIVE PLEDGE) not create or permit to exist, and ensure
that no Subsidiary creates or permits to exist, any
Encumbrance over any of its property, other than a Permitted
Encumbrance;
(b) (NO FINANCIAL INDEBTEDNESS) not incur Financial Indebtedness,
and must ensure that no Subsidiary or (if the matter is within
the Parent's control) Associate incurs Financial Indebtedness,
without the consent of the Facility Agent (acting on the
instructions of a Super-Majority of Subscribers), other than:
(i) in the case of itself and the Subsidiaries:
(A) Existing Treasury Transactions (which may be
secured under the Securities as Priority 1
Debt);
(B) Treasury Transactions entered into with a
Subscriber or a Subscriber Affiliate or a
Lender or an Affiliate of a Lender (which
may be secured under the Securities as
Priority 1 Debt) and unsecured Treasury
Transactions entered into with any other
person;
(C) working capital facilities entered into by
one or more Group Security Providers with
financial institutions (which may be
55.
secured as Priority 1 Debt if the financial
institutions first enter into an
intercreditor agreement with the Facility
Agent on terms reasonably satisfactory to
the Facility Agent) as long as the aggregate
principal amount of Financial Indebtedness
outstanding under such working capital
facilities does not exceed AUD 40,000,000 on
any date;
(D) Financial Indebtedness entered into by any
Group Security Provider, as long as it is
either:
(I) unsecured; or
(II) secured under the Securities as
Priority 2 Debenture Stockholder's
Debt, Priority 3 Debenture
Stockholder's Debt or Priority 4
Debenture Stockholder's Debt (each
as defined in the Security Trust
Deed), and the providers of the
Financial Indebtedness first enter
into an intercreditor agreement
with the Facility Agent on terms
reasonably satisfactory to the
Facility Agent;
(E) other Financial Indebtedness entered into by
a Group Member that is not a Group Security
Provider, as long as:
(I) the sum of all such Group Members':
FI x POI,
where:
FI for each such
Group Member
is the aggregate
principal amount
of all such
Financial
Indebtedness of
the Group Member;
and
POI for each such
Group Member is
the Parent's
direct or indirect
proportionate
ownership interest
in the Group
Member,
does not exceed the Subsidiary
Limit at any time; and
(II) the Financial Indebtedness is
either unsecured, or only secured
over assets of the relevant Group
Member;
(F) Financial Indebtedness that is provided by a
Group Member to a Group Security Provider,
or by a Group Member (the "FIRST GROUP
MEMBER") to another Group Member in which
the Parent's direct or indirect
proportionate ownership interest is the same
or greater than the Parent's direct or
indirect proportionate ownership in the
First Group Member;
(G) Financial Indebtedness that is provided by a
Group Security Provider to Goodman or any
Wholly-Owned Subsidiary of
56.
Goodman after Goodman has become a
Subsidiary of the Parent but before Goodman
has become a Group Security Provider;
(H)
(I) Financial Indebtedness incurred
under the Term B Facility Agreement
(which may be secured under the
Term B Pledge Agreement and under
the Securities as Priority 1 Debt);
or
(II) if the commitment under the Term B
Facility Agreement is reduced (the
amount of the reduction being the
"REDUCTION AMOUNT"), any other
Financial Indebtedness up to an
amount equal to the Reduction
Amount incurred in substitution for
the Reduction Amount(which may be
secured under the Term B Pledge
Agreement and under the Securities
as Priority 1 Debt); and
(III) and any other Financial
Indebtedness up to USD $100,000,000
secured on the same basis and
ranking pro rata and pari passu
with the Term A Facility Agreement,
the Term B Facility Agreement and
the TLB (Tranche 2) Facility
Agreement which constitutes an
incremental loan amount (as defined
in the Term B Facility Agreement)
(which may be secured under the
Term B Pledge Agreement and under
the Securities as Priority 1 Debt);
(I) Financial Indebtedness of Goodman or any of
its Subsidiaries that:
(I) exists on the Control Date; and
(II) does not exceed USD$50,000,000 from
and after the later of the date
that is 75 days after:
(1) the Control Date; and
(2) the first Drawdown Date;
(J)
(I) the TLA Bridge Debenture and any
other Financial Indebtedness
incurred under the TLA Bridge
Facility (which may be secured
under the Securities as Priority 1
Debt) and any Financial
Indebtedness provided to Goodman to
fund the repayment, prepayment or
redemption of the GMF Notes;
provided the entire outstanding
principal amount thereof must be
repaid on or prior to the first
Drawdown Date; and
(II) and any other Financial
Indebtedness provided that in each
case such Financial Indebtedness is
used to repay in full all amounts
outstanding under the Facility
Agreements on the
57.
day such other Financial
Indebtedness is drawn (which may be
secured under the Securities as
Priority 1 Debt); or
(K) Financial Indebtedness incurred under the
TLB (Tranche 2) Facility Agreement (which
may be secured under the TLB (Tranche 2)
Pledge Agreement and under the Securities as
Priority 1 Debt); or
(ii) in the case of Associates, any Financial Indebtedness
as long as the sum of all Associates':
FI x POI,
where:
FI for each Associate is the aggregate
principal amount of all such Financial
Indebtedness of the Associate; and
POI for each Associate is the Parent's direct or
indirect proportionate ownership interest in
the Associate,
does not exceed the Associate Limit at any time;
(c) (NO DISPOSAL OF PROPERTY) not dispose of, declare a trust over
or otherwise create an interest in, and must ensure that no
Subsidiary disposes of, declares a trust over or otherwise
creates an interest in, any of its property except:
(i) as permitted by paragraph (a), (e) or (g);
(ii) as permitted by clause 7;
(iii) in the case of Excluded Subsidiaries, as
contemplated by clause 5.8; or
(iv) with the consent of the Facility Agent
(acting on the instructions of a
Super-Majority of Subscribers);
(d) (RESTRICTIONS ON CAPEX) not incur Capex at any time, and must
ensure that no Subsidiary incurs Capex at any time, if this
would cause the aggregate amount of Capex incurred by Group
Members in a Financial Year to exceed the greater of:
(i) 20% of EBITDA for the Group for that
Financial Year; and
(ii) the amount set out for that Financial Year
in the following table:
- ---------------------------------------------------------
PERMITTED CAPEX (AUD
FINANCIAL YEAR (END DATE) MILLION)
- ---------------------------------------------------------
30 June 2003 100.0
- ---------------------------------------------------------
30 June 2004 170.0
- ---------------------------------------------------------
30 June 2005 150.0
- ---------------------------------------------------------
58.
- ---------------------------------------------------------
PERMITTED CAPEX (AUD
FINANCIAL YEAR (END DATE) MILLION)
- ---------------------------------------------------------
30 June 2006 130.0
- ---------------------------------------------------------
30 June 2007 120.0
- ---------------------------------------------------------
30 June 2008 120.0
- ---------------------------------------------------------
plus, for each Financial Year, the amount (if any) by
which the amount actually spent by Group Members on
Capex in the previous Financial Year is less than the
amount specified for that previous Financial Year in
the table,
calculated, in the case of expenditure incurred in currencies
other than Australian Dollars, at the Spot Rate at the time
the expenditure is incurred;
(e) (NO DISTRIBUTIONS) not, and ensure that the Subsidiaries do
not, declare or pay any dividend, return any capital to its
shareholders or make any distribution of assets, share
capital, obligations or securities (or, to the extent they
represent a distribution in lieu of a dividend, warrants,
rights or options) to any of its shareholders in their
capacity as such ("DISTRIBUTION"), unless:
(i) no Event of Default or Potential Event of Default has
occurred which is continuing immediately prior to the
Distribution and the Distribution will not result in
the occurrence of an Event of Default or Potential
Event of Default; and
(ii) there is no breach of clause 5.3(i); and
(iii) one of the following conditions in (A) - (E) below is
met:
(A) the Distribution is to be funded from
either:
(1) Free Cash Flow (excluding for the
purposes of this clause 5.3(e)(iii)
any amount referred to in paragraph
(J)(1) of the definition of "Free
Cash Flow") available to the Group
at the end of each calendar year
after satisfaction by the Parent of
its obligations under clause 8.2(c)
of the Term A Facility Agreement;
or
(2) Free Cash Flow (excluding for the
purposes of this clause 5.3(e)(iii)
any amount referred to in paragraph
(J)(1) of the definition of "Free
Cash Flow") for the 6 month period
ending on 30 June in each year that
would be available to the Group at
the end of that 6 months after the
satisfaction by the Parent of its
obligations if the obligations of
the Parent under clause 8.2(c) of
the Term A Facility Agreement also
applied for each 6 month period
ending on 30 June in each year; or
59.
(B) the Distribution is in favour of the Parent
or a Wholly-Owned Subsidiary (or, in the
case of a dividend, return of capital or
distribution by a Majority Owned Subsidiary,
in favour of all its owners pro rata in
accordance with their respective ownership
interests); or
(C) in the case of an Excluded Subsidiary, to
the extent that it is Liquidated in
accordance with clause 5.8; or
(D) with the consent of the Facility Agent
(acting on the instructions of the Majority
of Subscribers); or
(E) the Distribution is a dividend paid by the
Parent:
(1) on ordinary shares in the Parent
for an aggregate amount of up to
US$25,000,000 until the Facility
Commitments are reduced to zero;
and
(2) from and after 30 September 2003,
on ordinary shares of the Parent in
each fiscal year up to an aggregate
amount equal to:
(A) 25% of Free Cash Flow from
the immediately preceding
fiscal year, if the Senior
Debt Ratio on the
immediately preceding
Calculation Date was
greater than 2.50 times,
but less than or equal to
2.75 times; or
(B) 50% of Free Cash Flow from
the immediately preceding
fiscal year, if the Senior
Debt Ratio on the
immediately preceding
Calculation Date was less
than or equal to 2.50
times; or
(3) on Converting Preference Shares in
the Parent;
(f) (NO CHANGES TO SHARE CAPITAL) in the case of the Parent only,
not purchase, redeem, retire, defease, exchange or otherwise
acquire for value all or any part of its issued share capital
or any warrants, rights or options to acquire any of its
issued share capital (whether or not on issue at the date of
this document) (a "SHARE CAPITAL EVENT"), except as
contemplated by the terms of the Capital Notes or unless:
(i) no Event of Default or Potential Event of Default has
occurred which is continuing immediately prior to the
Share Capital Event and the Share Capital Event will
not result in the occurrence of an Event of Default
or Potential Event of Default; and
(ii) there is no breach of close 5.3(i),
and:
(iii) the Share Capital Event is to be funded from either:
60.
(A) Free Cash Flow available to the Group at the
end of each calendar year after satisfaction
by the Parent of its obligations under
clause 8.2(c) of the Term A Facility
Agreement; or
(B) Free Cash Flow for the 6 month period ending
on 30 June in each year that would be
available to the Group at the end of that 6
months after the satisfaction by the Parent
of its obligations if the obligations of the
Parent under clause 8.2(c) of the Term A
Facility Agreement also applied for each 6
month period ending on 30 June in each year;
or
(iv) with the consent of the Facility Agent (acting on the
instructions of the Majority of Subscribers);
(g) (NO MERGERS OR RECONSTRUCTIONS) not, and ensure that the
Subsidiaries do not, participate in any merger, demerger,
amalgamation or reconstruction, except:
(i) in favour of the Parent or a Wholly-Owned
Subsidiary (or, in the case of a merger,
demerger, amalgamation or reconstruction
involving a Majority-Owned Subsidiary, in
such a way that the effective indirect
ownership interest of the Parent in that
Majority-Owned Subsidiary or its assets (as
appropriate) is not reduced);
(ii) in the case of an Excluded Subsidiary, to
the extent that it is Liquidated in
accordance with clause 5.8; or
(iii) with the consent of the Facility Agent
(acting on the instructions of the Majority
of Subscribers), which consent may not be
unreasonably withheld;
(h) (NO CHANGES TO CONSTITUTION) not amend, and ensure that no
Subsidiary amends, its constitution, charter, by-laws or other
constituent documents:
(i) in a manner that would change its
jurisdiction of incorporation; or
(ii) otherwise in any respect that would
materially adversely affect the interests of
the Subscribers,
without the consent of the Facility Agent (acting on the
instructions of a Majority of Subscribers); and
(i) (INTEREST ON CAPITAL NOTES) not pay, and must ensure that no
Subsidiary pays, any interest (in whole or in part) under the
Bridge Facility or the Capital Notes and must suspend, and
must ensure that any Subsidiary suspends, the payment of any
such interest in accordance with the provisions of the Capital
Notes Bridge Facility Agreement and the Capital Notes Trust
Deed if at any time there is a breach of any of the Interest
Suspension Financial Covenants and for so long as that breach
continues.
(j) (EARLY REDEMPTION OF CAPITAL NOTES) not, and must ensure that
its Subsidiaries do not, redeem, repurchase, or retire or
acquire any Capital Notes prior to the
61.
scheduled maturity date without the prior written consent of
the Facility Agent (acting on the instructions of a Majority
of Subscribers).
5.4 FINANCIAL UNDERTAKINGS
The Parent must ensure that:
(a) (DEBT SERVICE COVER RATIO) the Debt Service Cover Ratio for
each period of 12 months that ends on a Calculation Date that
occurs in a period set out in the following table is not less
than the amount set out in the following table opposite that
period:
- --------------------------------------------------------------------
MINIMUM PERMITTED DEBT SERVICE
PERIOD COVER RATIO
- --------------------------------------------------------------------
To 30 June 2003 1.10 times
- --------------------------------------------------------------------
1 July 2003 to 31 December 2003 1.10 times
- --------------------------------------------------------------------
1 January 2004 to 30 June 2004 1.10 times
- --------------------------------------------------------------------
1 July 2004 to 31 December 2004 1.10 times
- --------------------------------------------------------------------
1 January 2005 to 30 June 2005 1.20 times
- --------------------------------------------------------------------
1 July 2005 to 31 December 2005 1.20 times
- --------------------------------------------------------------------
1 January 2006 to 30 June 2006 1.20 times
- --------------------------------------------------------------------
After 1 July 2006 1.20 times
- --------------------------------------------------------------------
(b) (GEARING RATIO) the Gearing Ratio for each period of 12 months
that ends on a Calculation Date that occurs in a period set
out in the following table is not more than the amount set out
in the following table opposite that period:
- ----------------------------------------------------------------------
PERIOD MAXIMUM PERMITTED GEARING RATIO
- ----------------------------------------------------------------------
To 30 June 2003 4.90 times
- ----------------------------------------------------------------------
1 July 2003 to 31 December 2003 4.90 times
- ----------------------------------------------------------------------
62.
- ----------------------------------------------------------------------
PERIOD MAXIMUM PERMITTED GEARING RATIO
- ----------------------------------------------------------------------
1 January 2004 to 30 June 2004 4.75 times
- ----------------------------------------------------------------------
1 July 2004 to 31 December 2004 4.25 times
- ----------------------------------------------------------------------
1 January 2005 to 30 June 2005 4.00 times
- ----------------------------------------------------------------------
1 July 2005 to 31 December 2005 3.75 times
- ----------------------------------------------------------------------
1 January 2006 to 30 June 2006 3.50 times
- ----------------------------------------------------------------------
After 1 July 2006 3.25 times
- ----------------------------------------------------------------------
(c) (INTEREST COVER RATIO) the Interest Cover Ratio for each
period of 12 months that ends on a Calculation Date that
occurs in a period set out in the following table is not less
than the amount set out in the following table opposite that
period:
- ---------------------------------------------------------------------
MINIMUM PERMITTED INTEREST COVER
PERIOD RATIO
- ------------------------------------ --------------------------------
To 30 June 2003 2.10 times
- ------------------------------------ --------------------------------
1 July 2003 to 31 December 2003 2.10 times
- ------------------------------------ --------------------------------
1 January 2004 to 30 June 2004 2.25 times
- ------------------------------------ --------------------------------
1 July 2004 to 31 December 2004 2.50 times
- ------------------------------------ --------------------------------
1 January 2005 to 30 June 2005 2.50 times
- ------------------------------------ --------------------------------
1 July 2005 to 31 December 2005 2.75 times
- ------------------------------------ --------------------------------
1 January 2006 to 30 June 2006 2.75 times
- ------------------------------------ --------------------------------
After 1 July 2006 3.00 times
- ------------------------------------ --------------------------------
(d) (SENIOR INTEREST COVER RATIO) the Senior Interest Cover Ratio
for each period of 12 months that ends on a Calculation Date
that occurs in a period set out in the
63.
following table is not less than the amount set out in the
following table opposite that period:
- -----------------------------------------------------------------
MINIMUM PERMITTED SENIOR
PERIOD INTEREST COVER RATIO
- -----------------------------------------------------------------
To 30 June 2003 3.75 times
- -----------------------------------------------------------------
1 July 2003 to 31 December 2003 3.75 times
- -----------------------------------------------------------------
1 January 2004 to 30 June 2004 4.00 times
- -----------------------------------------------------------------
1 July 2004 to 31 December 2004 4.25 times
- -----------------------------------------------------------------
1 January 2005 to 30 June 2005 4.50 times
- -----------------------------------------------------------------
1 July 2005 to 31 December 2005 4.75 times
- -----------------------------------------------------------------
1 January 2006 to 30 June 2006 4.75 times
- -----------------------------------------------------------------
After 1 July 2006 4.75 times
- -----------------------------------------------------------------
5.5 HEDGING ARRANGEMENTS
(a) The Parent must ensure that Group Members have entered or
enter into Treasury Transactions in accordance with the Agreed
Hedging Program in relation to the interest rate exposure of
Group Members from 20 December 2002, in respect of not less
than 50% (or 75% in respect of so much of the Total Debt as is
denominated in United States Dollars if at any time after 20
December 2002 USD LIBOR for a period of 30 days increases by
0.50% p.a. or more from the rate prevailing as at 20 December
2002 or 75% in respect of so much of the Total Debt as is
denominated in Australian Dollars if at any time after 20
December 2002, AUD Cash Rate increases by 0.50% p.a. or more
from the rate prevailing as at 20 December 2002) of the Total
Debt, on terms reasonably satisfactory to the Facility Agent
(acting on instructions of a Majority of Subscribers).
(b) The Parent must ensure that Group Members enter into Treasury
Transactions in accordance with the Agreed Hedging Program in
relation to the Borrowers' foreign exchange exposure in
relation to the Facilities, on terms reasonably satisfactory
to the Facility Agent (acting on instructions of a Majority of
Subscribers).
(c) The Parent must ensure that no Group Member enters into a
Treasury Transaction except in accordance with this subclause
or to hedge foreign exchange exposures that arise from asset
purchases by the Group Member. Without limiting this, the
64.
Parent must ensure that no Group Member enters into a Treasury
Transaction for speculative purposes.
5.6 NEW GROUP SECURITY PROVIDERS
(a) The Parent must ensure, if an entity that is not a Group
Member becomes a Group Member and has, or has completed the
acquisition of, total assets of AUD2,000,000 or more, that:
(i) the entity promptly becomes a Group Security
Provider by executing such Securities and
other documents as the Facility Agent
(acting on the instructions of a Majority of
Subscribers) reasonably requires, consistent
with the laws of the relevant jurisdiction,
except to the extent that the Parent
demonstrates to the reasonable satisfaction
of the Facility Agent (acting on the
instructions of a Majority of Subscribers)
that it is not reasonably practicable or too
expensive to do so (having regard to the
value of the assets involved); and
(ii) it or the entity provides the Facility Agent
with such evidence and information (such as
legal opinions) in relation to its execution
of those documents, and within such period,
as the Facility Agent (acting on the
instructions of a Majority of Subscribers)
reasonably requires,
provided that:
(iii) Goodman and its Subsidiaries will not be
required to become Group Security Providers
until each is a Wholly-Owned Subsidiary of
the Parent and all appropriate shareholder
and board resolutions have been passed; and
(iv) the Parent must use reasonable endeavours to
ensure that Goodman and each of its
Subsidiaries incorporated in Australia
satisfy the obligations in paragraph (i) and
(ii) above by 60 days from Goodman becoming
a Wholly-Owned Subsidiary of the Parent and
must satisfy those obligations within 180
days of Goodman becoming a Wholly-Owned
Subsidiary of the Parent;
(v) the Parent must satisfy the obligations in
paragraph (i) and (ii) within 90 days from
the date of this document in relation to any
Group Member which has acquired or acquires
any assets or shares comprised in the
acquisition of the Fleischmann business unit
from Kraft Foods International Inc.; and
(vi) notwithstanding the foregoing, or any other
provision of any Transaction Document:
(A) no more than 65% of the voting
Equity Interests of any "controlled
foreign corporation" within the
meaning of section 957 of the Code
("CONTROLLED FOREIGN CORPORATION")
shall be pledged to secure the
obligations of a "United States
Person"
65.
within the meaning of section 957
of the Code ("UNITED STATES
PERSON") under any Transaction
Document; and
(B) no Controlled Foreign Corporation
shall be required to become a Group
Security Provider or otherwise to
Guarantee the obligations of any
United States Person under any
Transaction Document,
provided however that the Parent must not
create or acquire any entity that would be a
Controlled Foreign Corporation of a United
States Person from and after its creation or
acquisition, other than Controlled Foreign
Corporations of a United States Person that
exist at the time of the direct or indirect
acquisition of such United States Person.
(b) If it is or becomes reasonably practicable or not too
expensive for any Group Member that has total assets of
AUD2,000,000 or more, consistent with the laws of the relevant
jurisdiction, to execute in favour of the Security Trustee a
Security that it has not already given to the Security
Trustee, the Parent must ensure, promptly after request from
the Facility Agent or after the Parent otherwise becomes aware
that it can be so done, that:
(i) the entity executes that Security, or any
other document, as the Facility Agent
(acting on the instructions of a Majority of
Subscribers) requires; and
(ii) it or the entity provides the Facility Agent
with such evidence and information (such as
legal opinions) in relation to its execution
of those documents, and in such period, as
the Facility Agent (acting on the
instructions of a Majority of Subscribers)
reasonably requires.
(c) If:
(i) a Group Member or other entity is required
to become a Group Security Provider under
this subclause; and
(ii) that Group Member or other entity is an
obligor in relation to any Financial
Indebtedness (other than Financial
Indebtedness permitted under this document),
the Parent must ensure, by the time that Group Member or
entity is required to become a Group Security Provider, that
its obligations in relation to that Financial Indebtedness are
released, or that they are either unsecured obligations or
secured under the Securities as Priority 2 Debenture
Stockholder's Debt, Priority 3 Debenture Stockholder's Debt or
Priority 4 Debenture Stockholder's Debt (each as defined in
the Security Trust Deed) and that (in any such case) the
granting by that Group Security Provider of its Securities is
not a breach of the terms of that Financial Indebtedness.
66.
5.7 INTRODUCTION OF A NEW BORROWER
(a) Subject to paragraph (d), the Parent may propose to the
Facility Agent that a Group Security Provider that is both:
(i) incorporated and carrying on business in
Australia, the Netherlands, United Kingdom,
Germany or the United States of America; and
(ii) a "Debtor" as defined in the Guarantee and
Indemnity (as that term is defined in the
Security Trust Deed),
become an additional Borrower for the purposes of this
document and the Facility Agreements.
(b) If the Parent makes a request under paragraph (a), and the
Facility Agent (acting on the instructions of a Super-Majority
of Subscribers) agrees, the Parent must ensure that the
proposed Borrower becomes a Borrower for the purposes of this
document and Facility Agreements by executing, and ensuring
that the existing Borrowers and the proposed Borrower execute,
such accession and other documentation as the Facility Agent
requires, and by providing the Facility Agent with such
evidence and information (such as legal opinions) in relation
to the execution of those documents as the Facility Agent
reasonably requires in order to give effect to that accession
to the Facility Agent's satisfaction.
(c) A Group Member may only accede to this document and the
Facility Agreements as a new Borrower on the basis that it
shares in the Commitments of the existing Borrower in the same
jurisdiction (or, in the case of a Group Member that is
incorporated in the United Kingdom or the Netherlands, in the
Commitments of the existing Borrower in Germany). The
documentation executed in accordance with paragraph (b) must
make such consequential changes to this document and the
Facility Agreements as are necessary to give effect to this.
(d) The Parent may only add one Borrower in each of Australia and
the United States of America and two in aggregate in any of
the Netherlands, United Kingdom and Germany.
5.8 EXCLUDED SUBSIDIARIES
(a) The Parent may procure the Liquidation of any Subsidiary
(other than a Borrower) if:
(i) the Parent determines that such Liquidation
is in the best interests of the Group;
(ii) the effect of such Liquidation will not be
adverse to the rights and interests of the
Subscribers in any material respect; and
(iii) such Liquidation is accomplished in
accordance with this clause 5.8.
(any Subsidiary to be so liquidated being referred to herein
as an "EXCLUDED SUBSIDIARY").
67.
(b) The Parent must ensure that:
(i) the Liquidation of any Excluded Subsidiary
is conducted as a solvent Liquidation (in
relation to any obligation owed by the
Excluded Subsidiary to any person other than
a Group Member);
(ii) the Liquidation process (once commenced) is
pursued and completed diligently; and
(iii) any property of the Excluded Subsidiary is
distributed to the Parent or another
Subsidiary in which the Parent has at least
the same effective ownership interest as it
has in the Excluded Subsidiary (and which,
if the Excluded Subsidiary was a Group
Security Provider, must also be or become a
Group Security Provider), or is otherwise
dealt with in accordance with clause 7.
(c) The representations and warranties in clauses 4.1(a), (b)(i),
(d)(iii), (e), (m) and (o) do not apply in relation to an
Excluded Subsidiary to the extent that the representation and
warranty would be incorrect because the Excluded Subsidiary is
in the process of being Liquidated in accordance with
paragraph (b).
(d) The release of any Security by an Excluded Subsidiary which is
required in order to permit or is necessary as a consequence
of the Liquidation is taken to have been permitted for all
relevant purposes under each Transaction Document.
5.9 UNDERWRITERS' FEES
On the first Drawdown Date, the Parent must pay each Initial Subscriber
that the Arrangers have identified to the Parent as an underwriter such
fee for participating in the underwriting of the Facilities as the
Arrangers direct, as long as the aggregate amount payable by the Parent
does not exceed the underwriting fee that the Parent and the Lead
Arranger and Underwriter agreed in a letter agreement dated 11 December
2002.
5.10 FACILITY AGENT'S FEE AND EXPENSES
The Parent must pay the Facility Agent such fee and expenses for acting
in that capacity as the Parent and the Facility Agent agree in a letter
agreement entered into on or around the date of this document.
5.11 NEGOTIATION OF BILATERAL FACILITIES
(a) The parties acknowledge that the Parent prefers if possible
that each Borrower be able to borrow in its domestic currency
from a Subscriber operating through a lending office in that
Borrower's jurisdiction of incorporation.
(b) The parties agree to consider in good faith any proposal to
amend the arrangements reflected in this document and the
Facility Agreements to permit one or more Borrowers to enter
into one or more bilateral loan facility agreements with one
or more Subscribers on the basis that:
68.
(i) any such bilateral facility agreement is
agreed by the Parent and the Facility Agent
(on the instructions of all Subscribers) to
be a Facility Agreement for the purposes of
this agreement;
(ii) the Commitments under the existing Facility
Agreements will be reduced to reflect the
new funding commitments under the proposed
bilateral facility agreements; and
(iii) such other consequential amendments are made
to this document and the existing Facility
Agreements as the Parent and the Facility
Agent (on the instructions of all
Subscribers) agree are necessary to give
effect to this.
5.12 OFFER UNDERTAKINGS
The Parent shall procure BPC1:
GOODMAN SHARES
(a) (i) immediately upon satisfying the requirements of ss 661A(1) or
661A(3) of the Corporations Act 2001 (whichever occurs
earlier), promptly gives the Facility Agent notice of
satisfying those requirements and that BPC1 does not extend
the offer period for the Offer after that time without the
consent of the Facility Agent;
(ii) exercises any and all rights which it has under Part 6A.1
of the Corporations Act 2001 to compulsorily acquire all
ordinary shares in Goodman (including, without limitation, any
Goodman ordinary shares issued within 6 weeks of the close of
the Offer as a result of the exercise of Goodman options) so
that, in all events, BPC1 lodges a compulsory acquisition
notice with the Australian and Securities Investment
Commission pursuant to s 661B(1) of the Corporations Act 2001
no later than 5 Business Days after the close of the Offer;
(iii) if the Offer becomes or is declared unconditional, promptly
gives to the Facility Agent a copy of the notification by
BPC1 under the Corporations Act 2001 that the Offer is
unconditional; and
(iv) promptly gives the Facility Agent notice of the waiver or
satisfaction of any condition in the Offer;
(b) if, during or at the close of the Offer, BPC1 has not
satisfied the requirements of ss 661A(1) or 661A(3) of the
Corporations Act 2001 in relation to Goodman ordinary shares,
but at any time after the close of the Offer BPC1 becomes a
"90% holder" of Goodman ordinary shares within the meaning of
s 664A(1) and (2) of the Corporations Act 2001, immediately
upon BPC1 becoming a "90% holder" of Goodman ordinary shares
to exercise any and all rights which it has under Part 6A.2 of
the Corporations Act 2001 to compulsorily acquire any ordinary
shares in Goodman so that, in all events, BPC1 lodges a
compulsory acquisition notice with the Australian Securities
and Investments Commission pursuant to s 664C(2)(a) of the
Corporations Act 2001 no later than 5 Business Days after
becoming a "90% holder" of Goodman ordinary shares;
69.
GOODMAN OPTIONS
(c) prior to making the Options Offer, to use all reasonable
endeavours to obtain a modification of Chapters 6 and 6A of
the Corporations Act 2001 from the Australian Securities and
Investments Commission so that all Goodman options are treated
as a single class of securities for the purposes of the
Options Offer;
(d) (i) immediately upon satisfying the requirements of ss 661A(1) or
661A(3) of the Corporations Act 2001 (whichever occurs
earlier) in relation to the options, promptly gives the
Facility Agent notice of satisfying those requirements and
does not extend the offer period for the Options Offer after
that time without the consent of the Facility Agent;
(ii) exercises any and all rights which it has under Part 6A.1 of
the Corporations Act 2001 to compulsorily acquire or
compulsorily procure the cancellation of all options in
Goodman so that, in all events, BPC1 lodges a compulsory
acquisition notice with the Australian and Securities
Investments Commission pursuant to s 661B(1) of the
Corporations Act 2001 no later than 5 Business Days after the
close of the Options Offer;
(iii) if the Options Offer becomes or is declared unconditional,
promptly gives to the Facility Agent a copy of the
notification by BPC1 under the Corporations Act 2001 that the
Options Offer is unconditional; and
(iv) promptly gives the Facility Agent notice of the waiver or
satisfaction of any condition in the Options Offer;
(e) if, during or at the close of the Options Offer, BPC1 has not
satisfied the requirements of ss 661A(1) or 661A(3) of the
Corporations Act 2001 in relation to Goodman options, but at
any time after the close of the Options Offer BPC1 becomes a
"90% holder" of Goodman options within the meaning of s
664A(1) and (2) of the Corporations Act 2001, immediately upon
BPC1 becoming a "90% holder" of Goodman options to exercise
any and all rights which it has under Part 6A.2 of the
Corporations Act 2001 to compulsorily acquire any Goodman
options so that, in all events, BPC1 lodges a compulsory
acquisition notice with the Australian Securities and
Investments Commission pursuant to s 664C(2)(a) of the
Corporations Act 2001 no later than 5 Business Days after
becoming a "90% holder" of Goodman options;
GOODMAN SHARES AND OPTIONS
(f) if BPC1 receives a request for a statement of the names and
addresses of the remaining holders of Goodman ordinary shares
or options pursuant to ss 661D(1) or 664C(1)(c)(i) of the
Corporations Act 2001, as the case may be, immediately to
provide such written statement to the person who requested it;
and
(g) if court proceedings are commenced to object to the compulsory
acquisition of Goodman ordinary shares or options pursuant to
Part 6A.1 or Part 6A.2 of the Corporations Act 2001, to use
all reasonable endeavours to expedite such court
70.
proceedings and to ensure that the court finally determines
such proceedings as soon as possible; and
(h) to complete the compulsory acquisition of any Goodman ordinary
shares pursuant to s666B of the Corporations Act 2001 or
options pursuant to the Corporations Act 2001 immediately upon
becoming entitled to do so pursuant to Part 6A.1 or Part 6A.2
of the Corporations Act 2001, as the case may be.
In this clause 5.12 all references to the Corporations Act 2001 are
references to the Corporations Act 2001 (Cth) and includes all
statutes, regulations, proclamations, ordinances, by-laws and
declarations of any Government Agency modifying, varying, consolidating
or replacing it, including in relation to its application to BPC1, the
Offer and any Options Offer, and are to be taken to be subject to any
exemption granted to the Parent or BPC1 (as the case may be) from
compliance with it.
5.13 SUPPLEMENTAL SECURITIES
To the extent that the Facility Agent has not received on or before the
first Drawdown Date the Supplemental Securities together with such
evidence and information (such as legal opinions) in relation to the
execution of the Supplemental Securities as the Facility Agent (acting
on the instructions of the Majority of Subscribers) reasonably
requires, the Parent must ensure that the Supplemental Securities are
executed by the relevant Group Security Provider and the evidence and
information provided to the Facility Agent, in form and substance
satisfactory to the Facility Agent acting reasonably, as soon as
reasonably practicable and in any event within 90 days of the first
Drawdown Date.
6. DELETED
7. ASSET DISPOSALS AND ACQUISITIONS
7.1 PERMITTED ASSET DISPOSALS OUTSIDE GROUP MEMBERS
(a) Subject to paragraph (c), the Parent must ensure that a Group
Member only disposes of property to a person other than a
Group Member:
(i) if the disposal is made on an arm's length basis;
(ii) to the extent that the Net Disposal Proceeds are
in cash and are not proceeds from the disposition
of Excluded Assets, if they are dealt with in
accordance with paragraph (b); or
(iii) to the extent that the Net Disposal Proceeds are
not in cash, if the property acquired as
consideration for the disposal:
(A) is either promissory notes or debt
securities not exceeding in aggregate
AUD15,000,000 (in relation to all
disposals permitted under this
sub-paragraph) at any time or a business
or company that principally conducts the
manufacturing, processing or
distribution of food ingredients,
consumer branded food products or
non-alcoholic beverages; and
71.
(B) otherwise complies (and that the Parent
complies) with clauses 7.3(a)(ii), (b),
(c), (d) and (e).
(b) If a Group Member disposes of property (other than Excluded
Assets) and paragraph (a)(ii) applies:
(i) the Parent must ensure that an amount equal to 25% of
the instalment of Net Disposal Proceeds is
immediately on receipt applied towards repayment of
outstanding Funding Portions or by reducing the Paid
Up Amount of Term Debentures under the Term A
Facility Agreement, in accordance with clause 8.2 of
the Term A Facility Agreement and repayment of
advances under the Term B Facility Agreement and TLB
(Tranche 2) Facility Agreement in accordance with
section 2.13 of the Term B Facility Agreement and
section 2.13 of the TLB (Tranche 2) Facility
Agreement; and
(ii) the Parent must ensure that an amount equal to 75% of
the instalment of Net Disposal Proceeds is deposited
immediately on receipt into the Investment Account,
on the basis that it will become a Repayment Amount
to the extent that it is not reinvested in accordance
with clause 7.3 within 182 days (or, if a Group
Member has entered within 182 days into an agreement
with a person who is not a Group Member to purchase
property in accordance with clause 7.3, within a
further period of 90 days, immediately after expiry
of that period).
(c) Despite paragraphs (a) and (b), a Group Member may dispose of:
(i) trading stock or obsolete or surplus assets on an
arm's length basis in a transaction that is entered
into in the ordinary course of the ordinary business
of the Group; or
(ii) other property on an arm's length basis, if the
aggregate arm's length value of all such property
that is disposed of by Group Members in the then
current Financial Year is less than AUD20,000,000 (or
its equivalent, calculated at the Spot Rate at the
time of the disposal); or
(iii) GF Program Receivables pursuant to the GMF
Securitisation Facility in an aggregate outstanding
amount at any time not in excess of the Threshold
Amount; or
(iv) the Gelatin Disposal,
without the proceeds of the disposal being required to be
dealt with in accordance with paragraphs (a) and (b).
7.2 PERMITTED ASSET DISPOSALS TO GROUP MEMBERS
(a) Subject to paragraph (b), the Parent must ensure that a Group
Member only disposes of property to another Group Member on
the following basis:
72.
(i) the Parent or a Wholly-Owned Subsidiary may
only dispose of property to the Parent or a
Wholly-Owned Subsidiary;
(ii) a Group Security Provider may only dispose
of property that is subject to a Security to
another Group Security Provider, and only if
the Facility Agent is satisfied that the
property as acquired by the second Group
Security Provider will be subject to a
Security that is satisfactory to the
Facility Agent; and
(iii) a Majority-Owned Subsidiary may only
transfer property to the Parent, a
Wholly-Owned Subsidiary or another
Majority-Owned Subsidiary in which the
Parent has at least the same effective
ownership interest.
(b) A Group Member may also dispose of property to another Group
Member:
(i) in a transaction that is permitted under
clause 5.3(a), (c), (e) or (g);
(ii) if the property is trading stock or obsolete
or surplus assets and the disposal is made
on an arm's length basis in a transaction
that is entered into in the ordinary course
of the ordinary business of the Group;
(iii) in accordance with clause 5.8; or
(iv) with the consent of the Facility Agent
(acting on the instructions of a Majority of
Subscribers).
7.3 PERMITTED BUSINESS ACQUISITIONS
(a) Subject to paragraph (f), the Parent must ensure that a Group
Member only acquires an interest in a business or company if:
(i) the business or company principally conducts
the manufacturing, processing or
distribution of food ingredients, consumer
branded food products or non-alcoholic
beverages;
(ii) the ratio of:
(A) Net Priority 1 Debt as at the end
of the previous Financial Quarter
or on the last day of the previous
Financial Year (whichever day is
more recent);
to
(B) the consolidated EBITDA of the
Group and the acquired business or
company over the period of 12
months ending on the last day of
the previous Financial Quarter or
on the last day of the previous
Financial Year (whichever day is
more recent),
does not exceed 2.75:1.
73.
(b) As soon as reasonably practicable after a Group Member makes
an acquisition of a type described in clause 7.3(a)(i), but no
later than 30 days after the acquisition (unless otherwise
agreed between the Parent and Facility Agent), the Parent must
provide the Facility Agent with:
(i) such due diligence reports in relation to
the acquisition as it may have obtained from
accounting, legal, technical, engineering,
environmental and other professional
advisers (which must be reputable and
industry-recognised in their respective
areas of expertise); and
(ii) the terms of engagement and scope of those
reports.
(c) As soon as reasonably practicable after a Group Member makes
an acquisition of a type described in clause 7.3(a)(i), but no
later than 30 days after the acquisition, the Parent must
provide the Facility Agent with a certificate, signed by a
director or the principal accounting officer of the Parent,
that sets out:
(i) the ratio referred to in clause 7.3(a)(ii)
together with such details as are required
to demonstrate the calculation of the ratio;
and
(ii) details of the business strategy for the
acquired business or company for the current
and next 2 full Financial Years, together
with an analysis of the anticipated impact
of the acquisition on the Debt Service Cover
Ratios, Gearing Ratios, Interest Cover
Ratios and Senior Interest Cover Ratios for
the Group for each of those periods.
(d) Within 5 days after a Group Member makes an acquisition of a
type described in clause 7.3(a)(i), the Parent must provide
the Facility Agent with a certificate, signed by a director of
the Parent on behalf of the board of the Parent, stating that
the board has:
(i) approved the acquisition; and
(ii) confirmed that the proposed acquisition will
not give rise to an Event of Default or
Potential Event of Default.
(e) If a Group Member acquires an interest in a business or
company that has total assets of AUD2,000,000 or more, the
Parent must ensure that the Group Member that acquires the
interest, or (at the option of the Facility Agent) each Group
Member that holds shares or other ownership interests in that
Group Member:
(i) executes such Securities and other documents
as the Facility Agent reasonably requires,
consistent with the laws of the relevant
jurisdiction, except to the extent that the
Parent demonstrates to the reasonable
satisfaction of the Facility Agent (acting
on the instructions of a Majority of
Subscribers) that it is not reasonably
practicable or it is too expensive to do so;
and
(ii) provides the Facility Agent with such
evidence and information (such as legal
opinions) in relation to its execution of
those documents, as the Facility Agent
reasonably requires,
74.
promptly after the acquisition is completed.
(f) Despite paragraph (a), the Parent may also permit a Group
Member to acquire:
(i) a business or company that principally conducts the
manufacturing, processing or distribution of food
ingredients, consumer branded food products or
non-alcoholic beverages if the arm's length
acquisition cost is less than AUD30,000,000 (or its
equivalent), and none of the acquisition cost is
funded by a withdrawal from an Investment Account;
and
(ii) all of the issued shares or any other equity
interests in New Zealand Dairy Foods Holdings Limited
on an arm's length basis so long as:
(A) the Parent receives and furnishes
to the Facility Agent any report
relating to the fairness and
reasonableness of the transaction
to the shareholders of the Parent
(other than Rank Group Limited and
its associates) which is required
to be prepared under the ASX
Listing Rules or the Corporations
Act from an independent expert who
must be reputable and industry
recognised; and
(B) after giving pro forma effect
thereto (including the financing
therefor), the Gearing Ratio as at
the end of the previous Financial
Year or Financial Quarter
(whichever is more recent) would be
at least 0.50 to 1.00 less than the
maximum permitted Gearing Ratio at
such time pursuant to clause
5.4(b).
(g) The Parent must ensure that no Group Member or (to the extent
within the Parent's control) Associate acquires a business or
company that does not principally conduct the manufacturing,
processing or distribution of food ingredients, consumer
branded food products or non-alcoholic beverages, without the
consent of the Facility Agent (acting on the instructions of
all the Subscribers).
7.4 INVESTMENT ACCOUNT
(a) The Parent must:
(i) procure that one or more Group Security
Providers establish one or more accounts
denominated in Australian Dollars, Canadian
Dollars, Euro, New Zealand Dollars or United
States Dollars with the Co-Trustee or one or
more Subscribers or Lenders (but with no
more than 4 Subscribers in aggregate) on the
Co-Trustee's or the relevant Subscriber's or
Lender's usual market terms for accounts of
that nature, each entitled "Burns Philp -
Investment Account"; and
(ii) ensure that each of those accounts is the
subject of a valid and perfected
first-priority Security in favour of the
Security Trustee (on such terms as the
Facility Agent reasonably requires),
supported by such other documentation and
opinions as the Facility Agent reasonably
requires,
before a deposit is required to be made into the account under
this document.
75.
(b) Each Investment Account must be established under the control
of the Security Trustee, and in the name and for the account
of the relevant Group Security Provider but on the basis that
it is subject to this clause.
(c) The Parent must ensure that each Investment Account is
maintained in order, and ensure that it remains in credit, at
all times.
(d) Interest that accrues on an Investment Account is to be paid
in accordance with the terms of the relevant Investment
Account to such other account as the Parent directs.
(e) A Group Security Provider, by giving an appropriately
completed IA Withdrawal Request to the Facility Agent and the
Security Trustee at least 3 Business Days before the proposed
withdrawal date, may require the Security Trustee to permit it
to withdraw money standing to the credit of its Investment
Account (other than a Repayment Amount) if:
(i) no Event of Default or Potential Event of
Default has occurred and is continuing; and
(ii) (A) it or another Group Security
Provider immediately applies the
withdrawn amount towards the
purchase of a business or company
that principally conducts the
manufacturing, processing or
distribution of food ingredients,
consumer branded food products or
non-alcoholic beverages; or
(B) it or another Group Security
Provider has applied an amount
equal to the withdrawn amount,
funded from other sources, within
the previous 90 days towards the
purchase of a business or company
that principally conducts the
manufacturing, processing or
distribution of yeast or food
ingredients, consumer branded food
products or non-alcoholic
beverages,
in accordance with clause 7.3(a).
(f) A Group Security Provider, by giving an appropriately
completed IA Withdrawal Request to the Facility Agent and the
Security Trustee at least 3 Business Days before the proposed
withdrawal date, may also require the Security Trustee to
permit it to withdraw money standing to the credit of its
Investment Account (other than a Repayment Amount) in order to
purchase a business or company that principally conducts the
manufacturing, processing or distribution of food products or
beverages with the consent of the Facility Agent (acting on
the instructions of a Majority of Subscribers).
(g) An amount standing to the credit of an Investment Account may
only be withdrawn in accordance with this clause.
7.5 APPLICATION OF REPAYMENT AMOUNTS
The Parent must ensure that any Repayment Amount that has become a
Repayment Amount under clause 7.1(b)(ii), is applied toward repayment
of outstanding Funding
76.
Portions by reducing the Paid Up Amount of Term Debentures under the
Term A Facility Agreement in accordance with clause 8.2 of the Term A
Facility Agreement and repayment of outstanding advances under the Term
B Facility Agreement and TLB (Tranche 2) Facility Agreement in
accordance with section 2.13 of the Term B Facility Agreement and
section 2.13 of the TLB (Tranche 2) Facility Agreement within 90 days.
8. DEFAULT
8.1 EVENTS OF DEFAULT
Each of these events or circumstances is an Event of Default:
(a) (NON-PAYMENT OF PRINCIPAL) if a Borrower fails to pay any
amount of principal that is due and payable by it under any
Transaction Document when it is due;
(b) (NON-PAYMENT OF OTHER AMOUNTS) if a Group Party fails to pay
any amount other than principal that is due and payable by it
under any Transaction Document within 2 Business Days of its
due date;
(c) (OTHER OBLIGATIONS) if a Group Party fails to comply with any
of its obligations under any Transaction Document (other than
a failure referred to elsewhere in this clause or a failure to
comply with clause 5.1(f)) and:
(i) the Facility Agent reasonably considers that
the failure cannot be remedied; or
(ii) the Facility Agent reasonably considers that
the failure can be remedied, and the failure
is not remedied within 15 Business Days
after the Facility Agent requires the Parent
to remedy it;
(d) (MISREPRESENTATION) if any representation, warranty or
statement made by, or repeated by, any Group Member in or in
connection with any Transaction Document (other than under
clause 4.1(d)) is untrue or misleading (whether by omission or
otherwise) in any material respect when so made or repeated;
(e) (INSOLVENCY EVENT) if an Insolvency Event occurs in respect of
a Group Party or any other Subsidiary, other than a
Liquidation of an Excluded Subsidiary in accordance with
clause 5.8;
(f) (MAINTENANCE OF CAPITAL) if the Parent passes a resolution:
(i) to permit the giving of financial
assistance, whether directly or indirectly,
for the purpose of, or in connection with,
an acquisition or proposed acquisition by a
person of shares or of any right or interest
in shares in it or in any holding company of
it;
(ii) for the reduction of its share capital
(including the purchase of its shares but
excluding a redemption of redeemable shares)
except as permitted under this agreement; or
(iii) to limit its ability to make calls on its
uncalled share capital,
77.
without the consent of the Facility Agent;
(g) (MATERIAL ADVERSE EFFECT) if an event or a change occurs or a
series of events or changes occur which have or is or are
likely to have a Material Adverse Effect (excluding any event
or change that may arise as a consequence of the announcement
or consummation of the Offer or the financing for the Offer);
(h) (CROSS-DEFAULT) if:
(i) any Financial Indebtedness of any Group
Member in an amount exceeding AUD40,000,000
(or its equivalent) becomes due for payment
or delivery (other than at the option of the
relevant Group Member) before the stated
maturity of that Financial Indebtedness as a
result of a default or event of default
(however described) (except in the case of
the Existing Senior Loan Agreements or any
Financial Indebtedness of Goodman or any of
its Subsidiaries prior to Goodman becoming a
Wholly-Owned Subsidiary of the Parent);
(ii) an agreement by any person with any Group
Member to provide or underwrite financial
accommodation in an amount exceeding
AUD40,000,000 (or its equivalent), or to
acquire or assume any risk in respect of
Financial Indebtedness in an amount
exceeding AUD40,000,000 (or its equivalent),
is prematurely terminated as a result of a
default or event of default (however
described) (except in the case of the
Existing Senior Loan Agreements or any
Financial Indebtedness of Goodman or any of
its Subsidiaries prior to Goodman becoming a
Wholly-Owned Subsidiary of the Parent); or
(iii) any money or commodity owing or deliverable
by any Group Member in respect of any
Financial Indebtedness in an amount
exceeding AUD40,000,000 (or its equivalent)
is not paid or delivered when due for
payment or delivery (having regard to any
applicable grace period) (except in the case
of the Existing Senior Loan Agreements or
any Financial Indebtedness of Goodman or any
of its Subsidiaries prior to Goodman
becoming a Wholly-Owned Subsidiary of the
Parent);
(i) (CREATION OF ENCUMBRANCES) if any Group Member creates or
permits to exist any Encumbrance over any of its property,
other than a Permitted Encumbrance;
(j) (ENFORCEMENT OF ENCUMBRANCES) if any Encumbrance over property
of a Group Member that secures an amount in excess of
AUD20,000,000 becomes enforceable;
(k) (COMPULSORY ACQUISITION) if all or a material part of the
property of a Group Member is compulsorily acquired by any
Government Agency or a Group Member sells or divests itself of
all or a material part of its property because it is required
to do so by a binding order from a Government Agency, and the
Group Member does not receive compensation for the
acquisition, sale or disposal that is acceptable to the
Facility Agent;
78.
(l) (INABILITY TO PERFORM) if a Group Member ceases for any reason
to be able lawfully to carry out all the transactions that any
Transaction Document contemplates may be carried out by it,
unless arrangements satisfactory to the Facility Agent to
replace the relevant provision are not agreed and implemented
to the satisfaction of the Facility Agent within 20 Business
Days (or, if the Parent demonstrates to the satisfaction of
the Facility Agent within that period that it is diligently
pursuing a replacement of the relevant provision and that the
relevant provision will be able to be replaced as required
within such longer period as the Facility Agent may approve,
that longer period);
(m) (SECURITY VOID) if:
(i) all or any material provision of any
Security or any other Security Document is
or becomes void, voidable, illegal or
unenforceable or of limited force (other
than because of equitable principles or laws
affecting creditors' rights generally); or
(ii) a Security is not or ceases to be a valid,
perfected first-priority Security Interest
in accordance with its terms over the
property to which it is expressed to apply;
or a Group Member claims this to be the case, unless the
Facility Agent determines in any such case that the affected
provision is not material to the Subscribers' overall security
position;
(n) (OTHER TRANSACTION DOCUMENTS VOID) if all or any material
provision of any Transaction Document other than a Security is
or becomes void, voidable, illegal or unenforceable or of
limited force (other than because of equitable principles or
laws affecting creditors' rights generally), or a Group Member
claims this to be the case, unless arrangements satisfactory
to the Facility Agent to replace that provision are not agreed
and implemented to the satisfaction of the Facility Agent
within 20 Business Days (or, if the Parent demonstrates to the
satisfaction of the Facility Agent within that period that it
is diligently pursuing a replacement of the relevant provision
and that the relevant provision will be able to be replaced as
required within such longer period as the Facility Agent may
approve, that longer period);
(o) (FINANCIAL INDEBTEDNESS) if a Subsidiary incurs Financial
Indebtedness in breach of clause 5.3(b);
(p) (LOSS OF MATERIAL AUTHORISATIONS) if a Group Member ceases to
hold:
(i) an Authorisation that is necessary to enable
it to properly execute the Transaction
Documents and to carry out the transactions
that they contemplate and to ensure that
each Transaction Document is legal, valid,
binding and admissible in evidence; or
(ii) any material Authorisation that is necessary
to enable it to properly carry on its
business and this has a Material Adverse
Effect,
79.
and if the Facility Agent reasonably considers that the
cessation can be remedied, the cessation is not remedied
within 15 Business days after the Facility Agent requires the
Parent to remedy it;
(q) (ENVIRONMENTAL BREACH) if a Group Member breaches an
Environmental Law that is applicable to it, its business or
its property in a manner that has a Material Adverse Effect.
8.2 CONSEQUENCES OF AN EVENT OF DEFAULT
If an Event of Default has occurred and has not been remedied, the
Facility Agent may notify the Parent that:
(a) the Subscribers' obligation to provide the Facilities is
terminated, in which case their obligation to do so terminates
immediately;
(b) the Commitment of each Subscriber under each Facility
Agreement is cancelled, in which case their Commitments will
be cancelled immediately;
(c) each outstanding Funding Portion under each Facility
Agreement, any accrued but unpaid interest and all other
amounts outstanding under each Transaction Document are due
and payable, in which case those amounts are immediately due
and payable;
(d) each outstanding Funding Portion under each Facility
Agreement, any accrued but unpaid interest and all other
amounts outstanding under each Transaction Document are due
and payable on demand, in which case those amounts will be due
and payable on demand made at any time; and
(e) any amount outstanding under a Transaction Document in a
currency other than Australian Dollars is to be converted into
Australian Dollars at the Spot Rate on the date of the
declaration in which case the amount is taken to be converted.
8.3 REVIEW EVENT
(a) A Review Event occurs if none of Mr Graeme Hart (or, in the
event of his incompetence or death, his estate, heirs,
executor, administrator, committee or other personal
representative (collectively, "heirs"), any of his immediate
family members (the "HART FAMILY"), or any entity controlled
directly or indirectly by a member or members of the Hart
Family or any trust for the benefit of a member of the Hart
Family:
(i) has, or together have, a beneficial interest
(directly or indirectly) in the Parent, calculated on
a fully diluted basis, of at least 35% of the issued
share capital of the Parent; and
(ii) is, or together are, the single largest shareholder,
or group of shareholders, in the Parent on a fully
diluted basis.
(b) If a Review Event occurs, the Parent must notify the Facility
Agent within 5 Business Days.
80.
(c) If a Review Event occurs, the Facility Agent (acting on the
instructions of the Majority of Subscribers), within 30 days
after the Review Event occurs, may notify the Parent that:
(i) the Subscribers' obligation to provide the
Facilities is to be terminated;
(ii) the Commitment of each Subscriber under each
Facility Agreement is to be cancelled; and
(iii) each outstanding Funding Portion under each
Facility Agreement, any accrued but unpaid
interest and all other amounts outstanding
under each Transaction Document are to
become due and payable,
on the day that occurs 90 days after the date of the Facility
Agent's notice, in which case those obligations terminate, the
Commitments are cancelled and those amounts are due and
payable, on that date.
(d) The rights of the Facility Agent and the Subscribers under
other provisions of this document and the Facility Agreements
(such as clause 8.2 of this document) are not affected by a
notice given by the Facility Agent under paragraph (c).
8.4 HIGH YIELD NOTE INDENTURE
Notwithstanding any other provision in this document, no Event of
Default or Potential Event of Default will occur if:
(a) section 4.11 of the High Yield Note Indenture is breached as a
result of the Parent failing to cause Goodman or any of its
Subsidiaries to provide a Guaranty Agreement (as defined in
the High Yield Note Indenture) at the time BPC1 acquires more
than 50% of the ordinary shares of Goodman; or
(b) an Event of Default (as defined in the High Yield Note
Indenture) occurs under section 6.01(6) of the High Yield Note
Indenture as a result of any default or acceleration of any
Indebtedness (as defined in the High Yield Note Indenture) of
Goodman or any of its Subsidiaries which occurs prior to the
Control Date,
in each case unless and until the Trustee (as defined in the High Yield
Note Indenture) (or the Holders (as defined in the High Yield Note
Indenture) of at least 25% in principal amount of the Securities (as
defined in the High Yield Note Indenture)) declares the principal of,
and accrued but unpaid interest on, the Securities (as defined in the
High Yield Note Indenture) to be due and payable.
9. INCREASED COSTS AND CHANGE OF LAW
9.1 INCREASED COSTS
(a) If:
(i) a Regulatory Change:
81.
(A) subjects a Subscriber or any
related body corporate of a
Subscriber to any Tax (other than
an Excluded Tax) relating to any
Transaction Document;
(B) changes the basis of taxation of
any payment due or to become due to
a Subscriber or a related body
corporate of a Subscriber relating
to any Transaction Document (other
than in relation to Excluded Tax);
(C) imposes, modifies or deems
applicable any capital, liquidity,
reserve or prudential requirement
or requires the making of any
special deposit against or in
relation to any assets or
liabilities (actual or contingent)
of, deposits with or for the
account of, or loans by, a
Subscriber or any related body
corporate of that Subscriber; or
(D) imposes on a Subscriber or any
related body corporate of that
Subscriber any other condition
affecting any Transaction Document;
and
(ii) the result is (directly or indirectly) to:
(A) increase the cost to that
Subscriber, or any related body
corporate of that Subscriber, of
the provision or maintenance by
that Subscriber of a Facility, or
the performance by that Subscriber
of its obligations under a
Transaction Document;
(B) reduce:
(I) the effective rate of
return (on capital,
property, deposits or
otherwise) of the
Subscriber or any related
body corporate of the
Subscriber under a
Transaction Document; or
(II) the amount of any payment
received by or for the
account of that Subscriber
or a related body
corporate of a Subscriber
under a Transaction
Document; or
(C) require that Subscriber or any
related body corporate of that
Subscriber to make a payment or to
forgo or suffer a reduction in
return on or calculated by
reference to any amount payable to
that Subscriber under a Transaction
Document,
then that Subscriber must give details to the Facility Agent
by notice, and immediately after receiving that notice the
Facility Agent must give a copy of it to the Parent. After
receiving notice from the Facility Agent stating the nature of
the relevant Regulatory Change, each Borrower must indemnify
that Subscriber in relation to, and must pay to that
Subscriber on demand the amount of, each amount that that
Subscriber certifies is necessary to compensate that
Subscriber, or any related body corporate of that Subscriber,
for the additional cost, reduction or payment, calculated from
the day on which it was first incurred by that Subscriber
82.
or the related body corporate of the Subscriber. The relevant
Subscriber must outline the calculation of the amount in the
certificate.
(b) A reference in paragraph (a) to a related body corporate of a
Subscriber is not limited to its Subscriber Affiliates.
9.2 INDIRECT COST, REDUCTION OR PAYMENT
A Subscriber may claim compensation under clause 9.1 for:
(a) any additional cost, reduction or payment that is directly
attributable to a Transaction Document; and
(b) the proportion of any additional cost, reduction or payment
that the Subscriber certifies is fairly attributable to a
Transaction Document and does not discriminate against the
relevant Borrower.
9.3 NOTICE OF CHANGE OF LAW
If, in the opinion of a Subscriber:
(a) a law or a directive or request (whether or not having the
force of law but, if not having the force of law, compliance
with which is in accordance with the general practice of
persons to whom the directive or request is addressed) of any
Government Agency not in effect at the date of this document;
or
(b) an amendment after the date of this document to, or a change
after the date of this document in the interpretation or
application of, a law or a directive or request (whether or
not having the force of law) of a Government Agency,
makes or will make it illegal in any jurisdiction, or in the case of a
directive or request after the first Drawdown Date, results or would
result in a breach, contravention or failure to comply with any such
directive or request, for that Subscriber or a Subscriber Affiliate to
continue to participate in a Facility, that Subscriber may give notice
(a "CHANGE OF LAW NOTICE") to the Facility Agent that it considers that
this has happened or that it will happen. Immediately after receiving
that notice the Facility Agent must give a copy of it to the Parent.
9.4 TERMINATION AND PREPAYMENT AFTER CHANGE OF LAW
If a Subscriber gives a Change of Law Notice:
(a) its obligation to continue to participate in the relevant
Facility terminates; and
(b) each Borrower must prepay the amount of that Subscriber's
Share of each Funding Portion provided to it by repaying the
Paid Up Amount of Debentures recorded in a Register as being
held by that Subscriber, together with any accrued but unpaid
interest and any other amounts (including amounts payable
under clause 10.1(e)) outstanding under each Transaction
Document that relate to that Subscriber:
(i) if the Subscriber considers:
83.
(A) in the case of a Funding Portion
under the Term A Facility
Agreement, that the current
Interest Period for the Funding
Portion will expire before it
becomes illegal or impractical for
the Subscriber to participate in
the Facility under that document -
on the last day of that Interest
Period; or
(B) in the case of a Funding Portion
under the Revolving Facility
Agreement, that the Funding Portion
will mature before it becomes
illegal or impractical for the
Subscriber to continue to
participate in the Facility under
that document - on its Maturity
Date; or
(ii) if subparagraph (i) does not apply to the
Funding Portion - immediately.
10. INDEMNITIES
10.1 GENERAL INDEMNITY
The Parent must indemnify each Arranger, the Facility Agent, each
Subscriber and each Subscriber Affiliate against, and must pay on
demand the amount of, all losses, liabilities, expenses and Taxes
(other than Excluded Taxes) incurred in connection with:
(a) any Event of Default, Potential Event of Default or Review
Event;
(b) any actual or attempted preservation or enforcement, of any
rights under any Transaction Document;
(c) a Subscriber not providing a Funding Portion to a Borrower
because a condition precedent in clause 2 of this document or
clause 3.4 of a Facility Agreement was not satisfied;
(d) any conversion of an amount denominated in one currency into
another currency after a declaration under clause 8.2;
(e) any Funding Portion being repaid or becoming due for repayment
by reducing the Paid Up Amount of a Debenture other than in
accordance with clause 8.3(a) or 8.5 of the Term A Facility
Agreement or clause 7.2 of the Revolving Facility Agreement,
or any other amount required to be paid under any Transaction
Document not being paid on its due date, including losses,
liabilities, expenses and Taxes (other than Excluded Taxes)
incurred because of:
(i) the cancellation, termination or alteration of
any swap or other arrangement made by a
Subscriber to fund its Share of the Funding
Portion or to fund all or part of the other
payment; or
(ii) any liquidation or re-employment of deposits or
other funds acquired by a Subscriber to fund its
Share of the Funding Portion or to fund all or
part of the other payment; and
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(f) acting in good faith on any notice, consent or other
communication that appears on its face to have been given by
the Parent, any other Group Party or an Authorised
Representative of the Parent.
Without limiting this, the Parent must also reimburse each Subscriber
on demand for any amount that the Subscriber is obliged to pay to the
Facility Agent under clause 11.17.
10.2 GST
(a) Without limiting clause 10.1 or any other payment obligation
of any Group Party under any Transaction Document, if any
party other than a Group Party (the "SUPPLIER") must pay GST
on any supply made by it under or in connection with a
Transaction Document, then in addition to any other amount
payable, the Group Party which is the recipient of that supply
(the "RECIPIENT") must pay to the supplier an amount equal to
that GST on demand.
(b) Without limiting clause 10.1 or any other payment obligation
of any Group Party under any Transaction Document, each of the
Borrowers and the Parent must indemnify each party (in this
subclause, the "INDEMNITEE") other than a Group Party against,
and must pay the indemnitee on demand the amount of, any GST
that the indemnitee must pay in relation to a taxable supply
that is made to it under or in connection with any Transaction
Document (including for the avoidance of doubt in connection
with the syndication of the Facilities), less the amount of
any input tax credit to which the indemnitee is entitled in
respect of the payment.
(c) If a party is entitled to receive a payment under this
subclause, it must provide the recipient of the relevant
taxable supply with a tax invoice within 28 days of receipt of
the payment.
(d) All words in this clause 10.2 have the same meaning as in the
A New Tax System (Goods and Services Tax) Act 1999 unless the
context makes it clear a different meaning is intended.
10.3 WAIVER PROCESSING FEE
The Parent must pay (or procure that a Borrower pays) the Facility
Agent for the account of the Subscribers (to be shared between the
Subscribers equally) a processing fee of AUD4,000 per Subscriber, up to
a maximum amount of AUD60,000, on each occasion that it requests one or
more waivers, consents or agreements of the Facility Agent for which
the Facility Agent requires the instructions or consent of some or all
Subscribers and either the request requires an agreement to amend a
Transaction Document or the request requires a Majority of Subscribers
to seek credit approval to the requested waiver, consent or agreement.
10.4 GENERAL COSTS
The Parent must indemnify each Arranger, the Facility Agent, each
Subscriber and each Subscriber Affiliate against, and must pay each
such party on demand the amount of, all Taxes (other than Excluded
Taxes) and reasonable out-of- pocket expenses incurred in connection
with:
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(a) the negotiation, preparation, execution and registration of
each Transaction Document; and
(b) any amendment to, or consent, approval, waiver, discharge or
release of or under any Transaction Document,
including legal expenses in all applicable jurisdictions on a full
indemnity basis, travel costs, printing, telecommunications, stamp
duties and other out-of-pocket expenses and expenses incurred in
engaging consultants.
11. FACILITY AGENT
11.1 APPOINTMENT OF FACILITY AGENT
(a) Each Subscriber irrevocably appoints the Facility Agent to act
as its agent, and as the agent of its Subscriber Affiliates
from time to time, under this document, each Facility
Agreement and each other Transaction Document under which the
Facility Agent is expressed to act as agent of the
Subscribers. The Facility Agent accepts this appointment.
(b) The Facility Agent is authorised to:
(i) perform the duties expressly imposed on it by any
Transaction Document; and
(ii) exercise the rights expressly given to it by any
Transaction Document or by any instructions from
a Majority of Subscribers or (where so specified)
a Super-Majority of Subscribers or all the
Subscribers, and any other rights that are
reasonably incidental to any of them.
Subject to the other provisions of this clause, this
authorisation may not be varied or withdrawn.
(c) The Facility Agent has no obligations in its capacity as agent
for the Subscribers or any Subscriber Affiliates other than
those expressly imposed on it by any Transaction Document.
11.2 NATURE OF RELATIONSHIP
(a) The Facility Agent is not a fiduciary for any Subscriber or
any Subscriber Affiliate in connection with any Transaction
Document except as expressly provided in any Transaction
Document.
(b) The Facility Agent is not an agent of or fiduciary for the
Parent or any Group Party.
11.3 INSTRUCTIONS FROM MAJORITY OF SUBSCRIBERS
(a) Subject to the other provisions of this clause, the Facility
Agent:
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(i) is not obliged to consult with any
Subscriber or Subscriber Affiliate before
exercising a right (including giving a
consent or approval or forming an opinion)
under any Transaction Document except where
this document provides otherwise;
(ii) must act in accordance with any instructions
of a Majority of Subscribers or, where a
provision requires that the Facility Agent
act on the instructions of a Super-Majority
of Subscribers or of all the Subscribers, on
the instructions of a Super-Majority of
Subscribers or of all the Subscribers as
appropriate; and
(iii) must refrain from exercising a right vested
in it in its capacity as agent under any
Transaction Document if so instructed by a
Majority of Subscribers,
except in relation to amounts due to it in its own right. Any
instructions by a Majority of Subscribers are binding on all
Subscribers and Subscriber Affiliates except where this
document or a Facility Agreement provides that instructions
must be provided by a Super-Majority of Subscribers or all the
Subscribers.
(b) The Facility Agent may refrain from exercising any right
vested in it under any Transaction Document until it has
received instructions from a Majority of Subscribers (or,
where required, a Super-Majority of Subscribers or all the
Subscribers) as to whether it is to be exercised and, if
applicable, the way that it is to be exercised.
(c) Subject to this document, where the Facility Agent has
requested instructions from a Majority of Subscribers (or,
where required, a Super-Majority of Subscribers or all the
Subscribers), but has not received instructions within the
period that it specified in the request (which period must be
reasonable in the circumstances), the Facility Agent may (but
is not obliged to) act as it considers to be in the best
interests of all the Subscribers and Subscriber Affiliates.
Any action taken by the Facility Agent under this paragraph
binds all the Subscribers and Subscriber Affiliates. The
Facility Agent must give a Subscriber on reasonable request
details of any action taken under this paragraph.
11.4 INFORMATION TO SUBSCRIBERS
The Facility Agent must:
(a) promptly give a Subscriber on request a copy of each document
that it receives under clause 2, at the expense of the Parent;
(b) promptly send to a Subscriber any communication or document
that it receives on behalf of that Subscriber; and
(c) promptly give each Subscriber a copy or details of each
material communication that it receives from or gives to the
Parent or a Group Party under any Transaction Document in its
capacity as Facility Agent.
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Unless a Transaction Document specifically provides otherwise, the
Facility Agent is not required to determine the accuracy or
completeness of any document or copy that it receives, or that it gives
to another party.
11.5 EVENTS OF DEFAULT
(a) The Facility Agent is not under any obligation to monitor or
enquire whether any party is in breach of its obligations
under any Transaction Document.
(b) The Facility Agent is not taken to have knowledge that an
Event of Default, a Potential Event of Default or a Review
Event has occurred unless:
(i) the Facility Agent is aware that a payment
due from a Group Party, and required by this
document or a Facility Agreement to be paid
to the Facility Agent, has not been made; or
(ii) a Subscriber or a Group Party informs the
Facility Agent that an Event of Default, a
Potential Event of Default or a Review Event
has occurred and gives it details of that
event.
(c) The Facility Agent must notify each Subscriber promptly if it
is taken to have knowledge that an Event of Default, a
Potential Event of Default or a Review Event has occurred.
11.6 PERFORMANCE OF OBLIGATIONS OF FACILITY AGENT
The Facility Agent may:
(a) perform any of its obligations under any Transaction Document
by or through its officers, employees or agents, and is not
responsible for any default, negligence or misconduct of any
agents selected by it with reasonable care;
(b) obtain and pay for expert advice and services it thinks
appropriate;
(c) refrain from doing anything that would, or in its reasonable
opinion might, contravene any applicable law or a directive or
request (whether or not having the force of law) of a
Government Agency or constitute a breach of trust or of any
proper practice relating to secrecy or confidentiality;
(d) do anything that, in its reasonable opinion, is necessary to
comply with any applicable law or a directive or request
(whether or not having the force of law) of a Government
Agency; and
(e) refrain from exercising any right under a Transaction Document
until it has been indemnified or secured to its reasonable
satisfaction against all losses, liabilities, expenses
(including legal expenses on a full indemnity basis and
expenses incurred in engaging consultants) and Taxes (other
than Excluded Taxes) that it would or might incur as a result
of doing so.
88.
11.7 FACILITY AGENT MAY RELY ON CERTAIN MATTERS
The Facility Agent may rely:
(a) on any communication or document reasonably believed by it to
be genuine, correct and properly signed;
(b) as to matters of fact that might reasonably be expected to be
within the knowledge of the Parent or another Group Party, on
a certificate signed by an Authorised Representative of that
entity; and
(c) on any advice or statement of any expert, attorney or agent
selected by it.
11.8 FACILITY AGENT MAY ASSUME CERTAIN MATTERS
The Facility Agent may assume that any representation or statement made
by a person in a Transaction Document remains true unless a Subscriber
or a Group Party notifies it to the contrary.
11.9 OFFICES OF SUBSCRIBERS
The Facility Agent may assume that the Lending Office of each
Subscriber or Subscriber Affiliate in relation to a Borrower and a
Facility is that specified in the relevant Facility Agreement or in a
valid notice of assignment or Substitution Certificate, unless it
receives a notice specifying another Lending Office that complies with
this document.
11.10 IDENTITY OF SUBSCRIBERS
The Facility Agent may assume that each Subscriber or Subscriber
Affiliate is the beneficial owner of its rights, and that each
Subscriber is bound by its Commitments, under each Transaction
Document, except to the extent that it receives a valid notice of
assignment or Substitution Certificate from the relevant Subscriber.
11.11 FACILITY AGENT NOT RESPONSIBLE FOR MONITORING
(a) Each Subscriber confirms that it:
(i) has made its own appraisal and investigation
of the business, financial condition, status
and affairs of the Parent and the Group;
(ii) is solely responsible for continuing that
appraisal and investigation after the date
of this document;
(iii) has entered into each Transaction Document
to which it is a party without any
inducement from the Facility Agent; and
(iv) has made its own appraisal of its financial
return under each Transaction Document.
(b) Each Subscriber confirms that it and its Subscriber Affiliates
have not relied, and will not rely, on the Facility Agent at
any time to:
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(i) give it any information concerning the
business, financial condition, status or
affairs of the Parent and the Group;
(ii) investigate the adequacy, accuracy or
completeness of any information given by the
Parent or a Group Member in connection with
any Transaction Document (whether or not the
information is given to that Subscriber by
the Facility Agent); or
(iii) assess or keep under review the business,
financial condition, status or affairs of
the Parent and the Group.
11.12 DISCLOSURE OF INFORMATION CONCERNING THE GROUP
Subject to any applicable law, the Facility Agent may disclose to the
Subscribers and their Subscriber Affiliates any information relating to
the business, financial condition, status or affairs of the Parent and
the Group that comes into its possession in its capacity as Facility
Agent, but is not obliged to do so except to the extent that a
Transaction Document expressly requires it to.
11.13 GROUP NOT CONCERNED WITH AUTHORITY OF FACILITY AGENT
A Group Party is not entitled to enquire whether any action by the
Facility Agent has in fact been authorised by the Subscribers and, as
between the Parent or any other Group Party and the Subscribers, any
action taken by the Facility Agent concerning any Transaction Document
is taken to be authorised by the Subscribers.
11.14 RECEIPTS AND BUSINESS ACTIVITIES OF FACILITY AGENT
The Facility Agent may:
(a) retain for its own benefit any amount received by it for its
own account; and
(b) accept deposits from, lend money or provide services to, and
generally conduct any banking or other business with, any
party to any Transaction Document and any person connected
with any party to any Transaction Document without having to
account to the Subscribers, their Subscriber Affiliates or any
other person.
11.15 FACILITY AGENT AS SUBSCRIBER
If the Facility Agent is also a Subscriber, it has the same rights
concerning its Commitments and Shares as any other Subscriber, and may
exercise those rights as if it were not acting as the Facility Agent.
11.16 PROTECTION OF FACILITY AGENT
Neither the Facility Agent nor any of its officers, employees, agents
or related bodies corporate is responsible to any Subscriber or
Subscriber Affiliate for:
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(a) any recital, statement, representation or warranty contained
in any Transaction Document, in any information memorandum or
in any document or agreement referred to or provided for in,
or received by it under, any Transaction Document;
(b) the execution, validity, effectiveness or sufficiency of any
Transaction Document or any document or agreement referred to
or provided for in, or received by it under, any Transaction
Document;
(c) any failure by the Parent or another Group Party or any other
person to perform its obligations under any Transaction
Document; or
(d) any action taken or not taken by it or them under any
Transaction Document:
(i) in accordance with any instructions from a
Majority of Subscribers (or, where required,
all the Subscribers); or
(ii) in any other case, except to the extent of
its wilful misconduct or gross negligence.
11.17 FACILITY AGENT INDEMNIFIED BY SUBSCRIBERS
(a) Each Subscriber must severally indemnify the Facility Agent
for its own account against, and must pay the Facility Agent
on demand the amount of, its proportion (which equals the
proportion that its Commitment bears to the Total Commitment)
of all losses, liabilities, expenses (including legal expenses
on a full indemnity basis and expenses incurred in engaging
consultants) and Taxes (other than Excluded Taxes) that the
Facility Agent properly incurs in connection with the
performance or attempted performance of its functions as
Facility Agent, except to the extent that they:
(i) have been finally paid by the Parent under
clause 10; or
(ii) are incurred because of the Facility Agent's
wilful misconduct or gross negligence.
(b) No payment by a Subscriber under this subclause affects the
obligations of the Parent under clause 10. A payment by a
Subscriber under this subclause constitutes a loan of that
amount by that Subscriber to the Parent that:
(i) accrues interest at the Default Rate for
each Default Interest Period as if it were
an unpaid amount under a Transaction
Document; and
(ii) must be repaid to the Facility Agent
together with its accrued interest on demand
for the account of that Subscriber.
11.18 CHANGE OF FACILITY AGENT
(a) Subject to this subclause, the Facility Agent may resign as
agent by giving at least 30 days' notice to the Parent and the
Subscribers.
91.
(b) Subject to this subclause, the Facility Agent may be removed
as agent by notice from a Majority of Subscribers that:
(i) is given with the consent of the Parent
(which consent may not be unreasonably
withheld or delayed); and
(ii) takes effect at least 30 days after the date
of receipt of the notice by the Facility
Agent.
(c) No resignation or removal under this subclause takes effect
until a successor Facility Agent has been appointed either:
(i) by a Majority of Subscribers with the
consent of the Parent (which consent may not
be unreasonably withheld or delayed); or
(ii) where a Majority of Subscribers have not
appointed a successor within 30 days of the
date of receipt of the notice of resignation
or removal, by the Facility Agent with the
consent of the Parent (which consent may not
be unreasonably withheld or delayed),
and has accepted that appointment in a manner that binds it to
perform the obligations of the Facility Agent under each
Transaction Document.
(d) The retiring Facility Agent, at its own cost, must give the
successor Facility Agent any documents and assistance that it
reasonably requests for performing its functions as Facility
Agent under any Transaction Document.
(e) On the appointment of a successor Facility Agent:
(i) the successor Facility Agent succeeds to the
position of the retiring Facility Agent;
(ii) the retiring Facility Agent is discharged
from any further obligations under any
Transaction Document, but without affecting
any accrued rights or obligations;
(iii) the indemnities under any Transaction
Document in favour of the retiring Facility
Agent survive concerning matters occurring
before the appointment of the successor
Facility Agent, and the retiring Facility
Agent continues to have the benefit of this
clause; and
(iv) the successor Facility Agent and the other
parties to each Transaction Document have
the same rights and obligations as if the
successor Facility Agent had been a party to
each Transaction Document in place of the
Facility Agent.
11.19 DEALINGS WITH FACILITY AGENT
The Subscribers and their Subscriber Affiliates on the one hand, and
the Group Parties on the other hand, must only deal with each other in
relation to matters affecting the
92.
Transaction Documents through the Facility Agent in accordance with
this document, except to the extent that a Transaction Document
expressly provides otherwise.
11.20 FACILITY AGENT MAY INSTRUCT SECURITY TRUSTEE
(a) Each Subscriber agrees for the benefit of the Security Trustee
that any instruction that the Facility Agent gives the
Security Trustee in relation to the Security Trust Deed, the
Debenture Trust Deed or any other Security Document will be
taken, to the extent necessary, to have been given by a
Majority of Subscribers, and that the Security Trustee may
assume this to be the case without enquiry.
(b) Each Subscriber acknowledges that the Facility Agent will hold
the benefit of the promise in paragraph (a) on trust for the
Security Trustee.
12. REDISTRIBUTION OF PAYMENTS BETWEEN SUBSCRIBERS
12.1 NOTICE OF DIRECT RECEIPTS
A Subscriber must notify the Facility Agent promptly if it receives or
recovers an amount payable under this document (including by exercising
a banker's lien or right of set-off or combination of accounts),
setting out details of the receipt or recovery, unless the amount is:
(a) received from the Facility Agent or the Security Trustee; or
(b) paid by an assignee, transferee or subparticipant of the
rights or obligations of that Subscriber.
12.2 REDISTRIBUTION OF EXCESS PAYMENTS
If:
(a) a Subscriber must notify the Facility Agent under clause 12.1
of an amount that it has received or recovered; and
(b) that amount would have been distributed among some or all of
the Subscribers if it had been paid to the Facility Agent,
then:
(c) that Subscriber must promptly pay that amount to the Facility
Agent; and
(d) the Facility Agent must distribute the amount received by it
to the Subscribers in accordance with their entitlements.
12.3 REIMBURSEMENT FOLLOWING CLAWBACK
If:
(a) a Subscriber has made a payment to the Facility Agent under
clause 12.2 in respect of an amount that it has received or
recovered;
93.
(b) the Facility Agent has distributed that payment; and
(c) that Subscriber is obliged to refund that amount under any law
relating to bankruptcy, winding up or the protection of
creditors,
then, on demand by that Subscriber through the Facility Agent, each
other Subscriber must repay to the Facility Agent for the account of
that Subscriber all, or the part corresponding to the proportion of the
amount which that Subscriber is obliged to refund, of the amount
distributed to it by the Facility Agent.
12.4 BORROWERS REMAIN LIABLE
As between the Group Parties and a Subscriber, any amount that is:
(a) paid by that Subscriber to the Facility Agent under clause
12.2; or
(b) repaid by that Subscriber to the Facility Agent for the
account of another Subscriber under clause 12.3,
is taken not to have been paid to that Subscriber, and the relevant
Group Party must immediately pay the amount to the Facility Agent for
the account of that Subscriber.
12.5 FAILURE OF ALL SUBSCRIBERS TO JOIN IN LITIGATION
A Subscriber may not share in an amount under clause 12.2 if the amount
was recovered as a result of legal proceedings, and the Subscriber was
asked by the Facility Agent to participate in those proceedings or to
share the costs of those proceedings but did not do so.
12.6 CALCULATION OF FOREIGN CURRENCY AMOUNTS
If:
(a) the Facility Agent considers in good faith that it is
necessary for the purposes of any calculation under this
document or a Facility Agreement that it calculate, for an
amount in any currency, the equivalent in any other currency;
and
(b) this document or the relevant Facility Agreement does not
specify a mechanism for calculating the equivalent,
the Facility Agent may do so using the Spot Rate on such day as it
reasonably considers appropriate for that purpose.
13. ASSIGNMENTS AND SUBSTITUTIONS
13.1 ASSIGNMENT BY GROUP PARTIES
(a) Subject to paragraph (b), a Group Party may only assign any of
its rights or transfer any of its obligations under any
Transaction Document with the consent of the Facility Agent
acting on the instructions of all the Subscribers.
94.
(b) A Borrower (in this paragraph, the "ASSIGNOR") may assign or
transfer all (but not part) of its rights and obligations
under this document and the Facility Agreements without the
consent of the Facility Agent if:
(i) the Assignor has disposed of all or
substantially all its property, or all or
substantially all of the shares in the
Assignor have been disposed of, in
accordance with clause 7.1 or is to be
merged into another Group Member in
accordance with clause 5.3(g);
(ii) the assignee or transferee (in this
paragraph, the "ASSIGNEE") is:
(A) a Wholly-Owned Subsidiary;
(B) incorporated in the same
jurisdiction as the Assignor; and
(C) is a Group Security Provider and,
in that capacity, has given such
Securities and other documents and
supporting material (such as legal
opinions) as the Facility Agent (on
the instructions of a Majority of
Subscribers) requires; and
(iii) the Parent, the Assignor, the Assignee and
the Facility Agent have executed such
documents and taken such other steps as the
Facility Agent (on the instructions of a
Majority of Subscribers) considers necessary
or desirable in order to give full effect to
the assignment or transfer, and the Facility
Agent has been provided with such other
documents and supporting material (such as
legal opinions) as the Facility Agent
requires in connection with the assignment
or transfer.
(c) Each Group Party (other than the Assignor) irrevocably
authorises the Parent to execute on its behalf any document
that the Facility Agent requires under paragraph (b)(iii).
(d) Each Subscriber and each Arranger irrevocably authorises the
Facility Agent to execute on its behalf any document that the
Facility Agent requires under paragraph (b)(iii).
(e) The Parent must indemnify each party other than a Group Party
against, and must pay on demand the amount of, all losses,
liabilities, expenses and Taxes incurred in connection with
any assignment or transfer under this subclause, including
legal expenses in all applicable jurisdictions on a full
indemnity basis.
(f) If, as a result of an assignment or transfer under this
subclause:
(i) a Subscriber or a related body corporate of
a Subscriber is subjected to any Tax (other
than an Excluded Tax) relating to any
Transaction Document;
(ii) the basis of taxation of any payment due or
to become due to a Subscriber or a related
body corporate of a Subscriber relating to
any Transaction Document (other than in
relation to Excluded Tax) is changed;
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(iii) any liquidity reserve or prudential
requirement is imposed, modified or deemed
applicable, or a Subscriber or any related
body corporate of a Subscriber is required
to make any special deposit against or in
relation to any assets or liabilities
(actual or contingent) of, deposits with or
for the account of, or loans by, that
Subscriber or a related body corporate of
that Subscriber; or
(iv) a Subscriber or any related body corporate
of a Subscriber becomes subject to any other
condition affecting any Transaction
Document,
and this has a result (direct or indirect) described in clause
9.1(a)(ii), then clause 9.1 applies as if the assignment or
transfer were a "Regulatory Change" for the purposes of that
clause.
13.2 ASSIGNMENT BY SUBSCRIBER
A Subscriber may assign any or all of its rights (including the rights
of a Subscriber Affiliate) under any Transaction Document:
(a) to a related entity, another Subscriber or a securitisation
vehicle, without the consent of any party to any Transaction
Document; and
(b) in any other case, only with the Parent's consent (which may
not be unreasonably withheld or delayed).
13.3 SUBSTITUTION BY SUBSCRIBER
(a) A Subscriber may transfer by novation any of its rights and
obligations under the Transaction Documents to a financial
institution if:
(i) the novation is made in accordance with clauses 13.3
and 13.4;
(ii) it gives the Facility Agent at least 5 Business Days'
notice (or any shorter notice approved by the
Facility Agent) of its intention to do so;
(iii) the transfer:
(A) is to a related entity, another Subscriber
or a securitisation vehicle that is managed
by the Retiring Subscriber or one of its
related entities; or
(B) has the Parent's consent (which may not be
unreasonably withheld or delayed);
(iv) (A) the relevant Commitment of each of the
Retiring Subscriber and the New Subscriber
will be AUD20,000,000, or an integral
multiple of AUD2,000,000 that is greater
than that amount, immediately after the
transfer; or
(B) the transfer is of the whole of a Commitment
of the Retiring Subscriber;
96.
(v) it transfers to the New Subscriber all or the
relevant part of its interest in the Debenture which
corresponds with the amount of its Commitment which
is transferred, such transfer of all or the relevant
part of its interest in the Debenture to be effected
in accordance with the Debenture Trust Deed and on
the terms and conditions set out in the Master
Debenture, or in such other manner as the Security
Trustee approves;
(vi) the transfer does not take effect while a Drawdown
Notice, Rollover Notice or Switching Notice is
current (except with the consent of the Facility
Agent); and
(vii) the New Subscriber holds all Authorisations that are
necessary or desirable in connection with the
transfer.
(b) The Parent is taken to have consented to a transfer under
paragraph (a)(iii)(B) if it does not object to the transfer
within 10 Business Days of being notified of it.
(c) If a Retiring Subscriber proposes a transfer of a Commitment,
and its Share of some outstanding Funding Portions has been
provided by a Subscriber Affiliate of the Retiring Subscriber,
the Retiring Subscriber must ensure that its Subscriber
Affiliate is bound by the relevant Substitution Certificate.
(d) To the extent that it is able to do so, a New Subscriber must
nominate a Lending Office for each Borrower that is located in
the same jurisdiction as that Borrower (or, in the case of a
Borrower in Germany, a Lending Office that is based in a
member state of the European Union).
13.4 PROCEDURE FOR SUBSTITUTION
(a) A Retiring Subscriber may arrange to novate a New Subscriber
for itself and its Subscriber Affiliates in respect of all or
part of a Commitment, the corresponding proportion of its
Share of each relevant Funding Portion and interest in the
Debentures which correspond with the amount of the commitment
to be transferred and related rights and obligations under the
Transaction Documents, by delivering to the Facility Agent 4
counterparts of a Substitution Certificate executed by the
Retiring Subscriber and by the proposed New Subscriber in the
Australian Capital Territory or outside Australia.
(b) Each party to this document (other than the Retiring
Subscriber and the proposed New Subscriber and their
respective Subscriber Affiliates) irrevocably authorises the
Facility Agent to execute:
(i) a Substitution Certificate delivered under
paragraph (a) in the Australian Capital
Territory or outside Australia;
(ii) any other document, and to do anything else,
that the Facility Agent believes is
necessary or desirable to make the
substitution,
on its behalf and on behalf of its Subscriber Affiliates.
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(c) After receiving a Substitution Certificate under paragraph
(a), the Facility Agent (subject to clause 13.3(a)) must:
(i) countersign the counterparts on behalf of
all the other parties to this document and
any Subscriber Affiliates (except the
Retiring Subscriber and the proposed New
Subscriber and their respective Subscriber
Affiliates) in the Australian Capital
Territory or outside Australia; and
(ii) retain 1 counterpart and deliver the others
to the Retiring Subscriber, the proposed New
Subscriber and the Parent.
(d) If the Facility Agent countersigns counterparts of a
Substitution Certificate as contemplated by paragraph (c)
then, on the "Substitution Date" referred to in the
Substitution Certificate:
(i) the New Subscriber is substituted by
novation for the Retiring Subscriber and its
Subscriber Affiliates in relation to the
Commitment (or part, as appropriate) of the
Retiring Subscriber as specified in the
Substitution Certificate, and the New
Subscriber and its Subscriber Affiliates are
substituted by novation for the Retiring
Subscriber and its Subscriber Affiliates in
relation to the corresponding proportion of
the Retiring Subscriber's Share of each
relevant Funding Portion as specified in the
Substitution Certificate, and to the related
rights and obligations;
(ii) the Retiring Subscriber and its Subscriber
Affiliates are released from the obligations
to which the New Subscriber is novated; and
(iii) if the substitution is not part of the
primary general syndication of the
Facilities, the New Subscriber must pay the
Facility Agent (for its own account) a fee
of AUD4,000.
13.5 CONSEQUENCES OF SUBSTITUTION
(a) If a Retiring Subscriber has arranged a novation in accordance
with this clause:
(i) references in each Transaction Document to
the Retiring Subscriber and its Subscriber
Affiliates as a "Subscriber" are to be taken
as references to:
(A) the Retiring Subscriber and the New
Subscriber (and, as appropriate, to
their respective Subscriber
Affiliates), in each case to the
extent of their Commitments and
their Shares of outstanding Funding
Portions and corresponding interest
in Debentures and the related
rights and obligations; or
(B) where the Retiring Subscriber and
its Subscriber Affiliates have no
further right or Commitment and no
further Share in any outstanding
Funding Portions, to the New
Subscriber (and, as appropriate,
its Subscriber Affiliates); and
98.
(ii) all agreements, representations and
warranties made in each Transaction Document
survive any novation made under this clause,
and take effect for the benefit of the New
Subscriber and the Retiring Subscriber (and
their respective Subscriber Affiliates) to
the extent of their respective Commitments
and Shares of outstanding Funding Portions
and corresponding interest in Debentures and
related rights and obligations,
with effect from the "Substitution Date" referred to in the
Substitution Certificate.
(b) The Retiring Subscriber and its Subscriber Affiliates are not
responsible to the New Subscriber and its Subscriber
Affiliates for the performance by the Parent, any other Group
Party or any other person of any obligation under any
Transaction Document.
13.6 SUBPARTICIPATION
Despite any other provision of this document a Subscriber may:
(a) subcontract any of its obligations; or
(b) enter into subparticipation or derivative arrangements
relating to any of its rights and obligations or those of its
Subscriber Affiliates,
without the consent of, or giving notice to, any person. However, the
Subscriber or Subscriber Affiliate remains liable for the performance
of those obligations as if it had not done so.
13.7 NO DEDUCTIONS AND WITHHOLDINGS OR INCREASED COSTS IN CERTAIN
CIRCUMSTANCES
(a) Subject to paragraph (b), if:
(i) a Subscriber assigns or transfers any of its
rights or obligations (or those of a
Subscriber Affiliate) under the Transaction
Documents or changes a Lending Office;
(ii) the Parent or a Borrower is later required
to make a payment under clause 3.6 or 9.1;
and
(iii) the aggregate amount that the Group is
obliged to pay to that Subscriber (in the
case of a change of Lending Office) or to
its assignee or transferee (in the case of
an assignment, transfer or substitution) is
greater that the aggregate amount that the
Group would have been obliged to pay to that
Subscriber under the relevant clause if the
assignment, transfer, substitution or change
had not occurred,
the Parent or the Borrower is not obliged to pay that excess
if the Subscriber (or the assignee or substitute, where
relevant) knew or ought reasonably to have known at the time
of the assignment, substitution or change that the assignment,
substitution or change would increase the aggregate amount for
which the Parent or the Borrower was liable under that clause.
99.
(b) Paragraph (a) does not apply in relation to a substitution
that is made as part of the primary syndication of the
Facilities on or before the date which is 90 days after the
date of commencement of general syndication as notified by the
Lead Arranger and Underwriter to the Parent(or such later date
as the Parent and the Arrangers agree).
13.8 SUBSCRIBER TO BEAR COSTS
A Subscriber that makes an assignment, substitution or subparticipation
as contemplated by this clause (other than as part of the primary
syndication of the Facilities on or before the date which is 90 days
after the date of commencement of general syndication, as notified by
the Lead Arranger and Underwriter to the Parent (or such later date as
the Parent and the Arrangers agree)) must indemnify the Parent for any
costs that a Group Party incurs in relation to the process of making
the assignment, substitution or subparticipation.
13.9 REDUCTION OF COMMITMENTS
If a transfer by novation is made by a Subscriber in accordance with
clauses 13.3 and 13.4;
(a) the Commitment and Face Value Amount of the Debenture held by
the Retiring Subscriber is reduced by the amount of the
Commitment assumed by the New Subscriber;
(b) the Commitment of the New Subscriber is the amount it assumes;
(c) a new schedule 2 must be prepared by the Facility Agent and
distributed to each of the Borrowers and the Subscribers
setting out the names, addresses and Commitments of the
Subscribers in effect from the date of the transfer;
(d) the Security Trustee must amend the Register to reflect each
transfer and the Debentures held by the Retiring Subscriber
and the New Subscriber after giving effect to the transfer and
including the changes to the Face Value Amounts and the Paid
Up Amounts of those Debentures, all in accordance with the
Debenture Trust Deed.
14. FACILITY AGENT TO HOLD DEBENTURE STOCK FOR SUBSCRIBERS AND OTHERS
14.1 UNDERTAKING TO PAY FACILITY AGENT
(a) Without limiting any other provision of this document or a
Facility Agreement but subject to paragraph (b), the Parent
undertakes as a primary obligation to pay to the Facility
Agent an amount equal to each amount (in this clause, an
"UNDERLYING AMOUNT") that it or a Borrower is liable to pay to
the Facility Agent, an Arranger, a Subscriber or a Subscriber
Affiliate from time to time under this document, a Facility
Agreement or a Treasury Transaction with a Subscriber or
Subscriber Affiliate (whether or not it remains a Subscriber
or Subscriber Affiliate) (in this clause 14, a "SWAP
COUNTERPARTY"), at the time and in the currency at and in
which the Underlying Amount is so payable.
100.
(b) The undertaking in paragraph (a) will be taken to be satisfied
in relation to an Underlying Amount if that Underlying Amount
is actually and irrevocably paid in accordance with the terms
for its payment.
14.2 OBLIGATIONS TO RANK AS PRIORITY 1 DEBENTURE STOCKHOLDER'S DEBT
The Parent acknowledges that it is a condition to any Funding Portion
being drawn that:
(a) the Parent issue Priority 1 Debenture Stock (as defined in the
Security Trust Deed) to the Facility Agent; and
(b) the Parent nominate this document and the Facility Agreements
as "Priority 1 Transaction Documents" for the purposes of the
Security Trust Deed.
14.3 FACILITY AGENT TO HOLD PAYMENT UNDERTAKING AND DEBENTURE STOCK ON TRUST
(a) The Facility Agent declares that it holds the benefit of the
Parent's undertaking in clause 14.1, together with the
Priority 1 Debenture Stock that is issued to it as
contemplated by clause 14.2, on trust for itself, the
Arrangers, the Subscribers, their Subscriber Affiliates and
the Swap Counterparties from time to time.
(b) The trust established under paragraph (a) commences on the
date of this document and ends (unless it is terminated
earlier by the Facility Agent with the consent of all
Subscribers and of all Swap Counterparties of which it is
notified under paragraph (c)) on the day before the 21st
anniversary of the date of this document.
(c) Each Subscriber must notify the Facility Agent if it or a
Subscriber Affiliate enters into a Treasury Transaction with
the Parent or a Borrower, giving the Facility Agent sufficient
details of the transaction to enable it to manage its rights
and obligations under this clause.
14.4 WAIVER OF ANNUAL SECURITY UPDATES
The Facility Agent will direct the Security Trustee in accordance with
clause 3.3 of the Security Trust Deed to waive the requirement that the
Parent comply with its obligations under the last sentence of clause
3.22 of the Security Trust Deed during the term of this document. The
Facility Agent may however require the Parent to produce an opinion of
counsel of the type referred to in the last sentence of clause 3.22 of
the Security Trust Deed in relation to a particular jurisdiction at any
time if it reasonably considers it necessary to do so.
15. CONFIDENTIALITY
15.1 GENERAL
Subject to clause 15.2, a party must not disclose any information
concerning the contents of, or the transactions contemplated by, any
Transaction Document to any person who is not a party, except to the
extent that:
(a) (PERMITTED BY DOCUMENTS) the disclosure is expressly permitted
by a Transaction Document;
101.
(b) (BID DOCUMENTS) any disclosure is made in the Bid Documents or
in any offer document for High Yield Notes, New High Yield
Notes or Capital Notes;
(c) (CONSENT) the Parent and the Facility Agent consent to the
disclosure (such consent not to be unreasonably withheld);
(d) (PUBLIC DOMAIN) the information is already in the public
domain, unless it entered the public domain because of a
breach of confidentiality by the party;
(e) (EMPLOYEES AND ADVISERS) the disclosure is made on a
confidential basis to the party's officers, employees, agents,
financiers or professional advisers, and is necessary for the
party's business;
(f) (COMPLY WITH LAWS) the disclosure is necessary to comply with
any applicable law, or regulation, the ASX listing rules, the
US Securities and Exchange Commission or any direction of any
Government Agency or regulatory body, or an order of a court
or tribunal;
(g) (COMPLY WITH DIRECTIVES) the disclosure is necessary to comply
with a directive or request of any Government Agency or stock
exchange (whether or not having the force of law) so long as a
responsible person in a similar position would comply;
(h) (OBTAIN AUTHORISATIONS) the disclosure is necessary or
desirable to obtain an Authorisation from any Government
Agency or stock exchange; or
(i) (DISCOVERY AND LITIGATION) the disclosure is necessary or
desirable in relation to any discovery of documents, or any
proceedings before a court, tribunal, other Government Agency
or stock exchange.
15.2 DISCLOSURE TO ASSIGNEES OR SUBSTITUTES
(a) Subject to paragraph (b), a Subscriber may:
(i) disclose to a Subscriber Affiliate, a
proposed assignee or substitute under clause
13, or any other person who proposes to
enter into contractual relations with a
Subscriber in relation to any Transaction
Document, any information about the Group
which that Subscriber considers appropriate;
and
(ii) give a copy of any Transaction Document to a
proposed assignee or substitute under clause
13 or any other person described in
paragraph (a)(i).
(b) Any disclosure made under paragraph (a) may only be made if
the person to whom the information or document is disclosed
undertakes for the benefit of the Parent to keep that
information or document confidential as required by clause
15.1.
102.
16. NOTICES
16.1 HOW TO GIVE A NOTICE
A notice, consent or other communication under this document or either
Facility Agreement is only effective if it is:
(a) in writing, signed by or on behalf of the person giving it;
(b) addressed to the person to whom it is to be given; and
(c) either:
(i) delivered or sent by pre-paid mail (by
airmail, if the addressee is overseas) to
that person's address; or
(ii) sent by fax to that person's fax number and
the machine from which it is sent produces a
report that states that it was sent in full.
16.2 WHEN A NOTICE IS GIVEN
A notice, consent or other communication that complies with this clause
is regarded as given and received:
(a) if it is delivered or sent by fax:
(i) by 5.00 pm (local time in the place of
receipt) on a Business Day - on that day; or
(ii) after 5.00 pm (local time in the place of
receipt) on a Business Day, or on a day that
is not a Business Day - on the next Business
Day; and
(b) if it is sent by mail - on actual receipt.
16.3 ADDRESS FOR NOTICES
A person's address and fax number are those set out below, or as the
person notifies the sender:
EACH GROUP MEMBER
Address: c/- Burns, Philp & Company Limited
Level 23
56 Pitt Street
SYDNEY NSW 2000
Fax number: (612) 9247 3272
Attention: Helen Golding, Company Secretary and General
Counsel
LEAD ARRANGER AND UNDERWRITER
Address: Level 27
101 Collins Street
MELBOURNE VIC 3000
Fax number: (613) 9280 1890
103.
Attention: Michael Tierney, Director
CO-LEAD ARRANGERS AND UNDERWRITERS
BOS INTERNATIONAL (AUSTRALIA) LIMITED
Address: Level 11
50 Carrington Street
Sydney NSW 2000
Fax number: (02) 9248 2199
Attention: Stephen Pollock
CREDIT AGRICOLE INDOSUEZ AUSTRALIA LIMITED
Address: Level 2
Grosvenor Place
225 George Street
Sydney NSW 2000
Fax number: (612) 9252 4691
Attention: Michael Johnston
FACILITY AGENT
Address: Level 27
101 Collins Street
MELBOURNE VIC 3000
Fax number: (613) 9653 3444
Attention: Malcolm White - Facility Agent
SUBSCRIBERS
As set out in schedule 2 or a Substitution Certificate, as appropriate.
16.4 RELIANCE ON NOTICES
The Facility Agent may rely without enquiry on a notice, consent or
other communication that appears on its face to have been given by the
Parent, a Group Party or an Authorised Representative of the Parent or
a Group Party. The Parent and each other Group Party is bound by any
such notice, consent or other communication.
17. AMENDMENTS AND WAIVERS
17.1 AGREEMENT OF FACILITY AGENT
(a) Subject to the other provisions of this clause, the Facility
Agent and the Parent may amend, supplement, replace or novate
a Transaction Document, and the Facility Agent may waive an
obligation of a Group Party under a Transaction Document, in
writing. The Facility Agent may execute an amendment,
supplement, replacement, novation or waiver on behalf of all
Subscribers and Subscriber Affiliates. The Parent may execute
an amendment, supplement, replacement, novation or waiver on
behalf of all Group Parties.
104.
(b) The Facility Agent must promptly notify each Subscriber if a
Transaction Document is amended, supplemented, replaced or
novated, or an obligation of a Group Party is waived, under
paragraph (a).
17.2 AGREEMENT OF MAJORITY OF SUBSCRIBERS
The Facility Agent may only execute an amendment, supplement,
replacement, novation or waiver of a Transaction Document, other than:
(a) to effect matters of a formal, minor or technical nature; or
(b) to correct a manifest error,
with the consent of a Majority of Subscribers.
17.3 AGREEMENT OF ALL SUBSCRIBERS
The Facility Agent may only execute an amendment, supplement,
replacement, novation or waiver that:
(a) relates to the definition of "Majority of Subscribers" in
clause 1.1;
(b) extends the date for, decreases the amount of, or changes the
currency of, any payment under a Transaction Document;
(c) increases a Subscriber's Commitment;
(d) waives a payment default;
(e) releases a Security where this is not otherwise permitted by
this document;
(f) changes any Interest Rate (as defined in a Facility
Agreement);
(g) relates to this clause or to clause 12; or
(h) relates to a provision that provides expressly that it may
only be amended, supplemented, replaced, novated or waived
with the consent of all the Subscribers,
with the consent of all the Subscribers.
17.4 WAIVER GENERALLY
Without limiting clauses 17.1 to 17.3, a right may only be waived in
writing, and:
(a) no other conduct (including a failure to exercise, or delay in
exercising, the right) operates as a waiver of the right or
otherwise prevents the exercise of the right;
(b) a waiver of a right on one or more occasions does not operate
as a waiver of that right if it arises again; and
(c) the exercise of a right does not prevent any further exercise
of that right or of any other right.
105.
18. GENERAL
18.1 GOVERNING LAW
(a) Each New Transaction Document is governed by the law in force
in New South Wales.
(b) Each party submits to the non-exclusive jurisdiction of the
courts exercising jurisdiction in New South Wales, and any
court that may hear appeals from any of those courts, for any
proceedings in connection with any Transaction Document, and
waives any right it might have to claim that those courts are
an inconvenient forum.
(c) Each Group Party appoints the Parent as its agent to receive
service of process for any proceedings in connection with any
Transaction Document. Each Group Party undertakes to maintain
this appointment until all amounts actually or contingently
owing under any Transaction Document have been fully and
irrevocably paid, and agrees that any process served on the
Parent is taken to be served on it.
18.2 WAIVER OF IMMUNITY
To the extent that a Group Party can claim immunity in any jurisdiction
for itself or its property from suit, execution, attachment (whether in
aid of execution, before judgment or otherwise) or other legal process,
or to the extent that any such immunity may be attributed to a Group
Party or its property in any jurisdiction (whether or not it claims
that immunity), that Group Party irrevocably waives that immunity and
agrees not to claim it to the full extent permitted by the laws of that
jurisdiction in respect of any liability or litigation that arises
(directly or indirectly) out of, under or in connection with this
document or any other Transaction Document. Without limiting this, each
Group Party agrees that the waiver of immunity in the previous sentence
is to have effect under, and to be construed in accordance with, the
Foreign Sovereign Immunities Act of 1976 of the United States of
America in any proceedings taken in any jurisdiction to which that Act
applies.
18.3 WAIVER OF JURY TRIAL
Each party waives, to the fullest extent permitted by applicable law,
any right it may have to a trial by jury in respect of any litigation
directly or indirectly arising out of, under or in connection with this
document or any other Transaction Document. Each party:
(a) certifies that no representative, agent or attorney of any
other party has represented, expressly or otherwise, that such
other party would not, in the event of litigation, seek to
enforce the foregoing waiver; and
(b) acknowledges that it and the other parties to this document
have been induced to enter into this document and the other
Transaction Documents, as applicable, by, among other things,
the mutual waivers and certifications in this subclause.
106.
18.4 LIABILITY FOR TAXES AND EXPENSES
The Parent must indemnify each Arranger and the Facility Agent against,
and must pay each such party on demand the amount of, all Taxes (other
than Excluded Taxes) and reasonable expenses incurred in connection
with:
(a) the negotiation, preparation, execution, stamping and
registration of each Transaction Document and the syndication
of the Facilities (to the extent required by law or approved
by the Parent);
(b) the transactions that each Transaction Document contemplates;
and
(c) any amendment to, or any consent, approval, waiver, release or
discharge of or under, any Transaction Document,
including legal expenses in all applicable jurisdictions on a full
indemnity basis, travel costs, printing, telecommunications, stamp
duties and other out-of-pocket expenses, and expenses incurred in
engaging consultants. This indemnity applies whether or not a Funding
Portion is ever requested or made.
18.5 GIVING EFFECT TO THE TRANSACTION DOCUMENTS
Each Group Party must do anything (including execute any document), and
must ensure that its employees and agents do anything (including
execute any document), that the Facility Agent may reasonably require
to give full effect to each Transaction Document.
18.6 OPERATION OF THE TRANSACTION DOCUMENTS
(a) Any right that the Facility Agent, an Arranger, a Subscriber
or a Subscriber Affiliate may have under the Transaction
Documents is in addition to, and does not replace or limit,
any other right that it may have.
(b) Any provision of a Transaction Document which is unenforceable
or partly unenforceable is, where possible, to be severed to
the extent necessary to make the Transaction Document
enforceable, unless this would materially change the intended
effect of the Transaction Document.
18.7 OPERATION OF INDEMNITIES
(a) Each indemnity in a Transaction Document survives the expiry
or termination of any Transaction Document.
(b) A party may recover a payment under an indemnity in a
Transaction Document before it makes the payment in respect of
which the indemnity is given.
18.8 CONSENTS
Where a Transaction Document contemplates that a party may agree or
consent to something (however it is described), that party may:
(a) agree or consent, or not agree or consent, in its absolute
discretion; and
107.
(b) agree or consent subject to conditions,
unless the Transaction Document expressly contemplates otherwise.
18.9 STATEMENTS BY THE FACILITY AGENT
A statement by an Authorised Representative of the Facility Agent on
any matter relating to any Transaction Document (including any amount
owing by a Group Party) is conclusive unless clearly wrong on its face.
18.10 SET-OFF
If an Event of Default occurs, each Subscriber or Subscriber Affiliate,
without notice to any Group Party, may combine any account that any
Group Party holds with it with, or set off any amount that is or may
become owing by it or any related body corporate to any Group Party
against, any amount owing by the Group Party to the Subscriber or
Subscriber Affiliate under any Transaction Document. For this purpose
the Facility Agent, each Subscriber and each Subscriber Affiliate may:
(a) change the terms (including the repayment date) of any account
or other payment obligation between the parties;
(b) convert amounts into different currencies in accordance with
its usual practice; and
(c) do anything (including execute any document) in the name of
any Group Party that it considers necessary or desirable.
This subclause overrides any other document or agreement to the
contrary.
18.11 NO MERGER
Nothing in a Transaction Document merges with any other Security
Interest, or any Guarantee, judgment or other right or remedy, that the
Facility Agent, an Arranger, a Subscriber or a Subscriber Affiliate may
hold at any time.
18.12 EXCLUSION OF CONTRARY LEGISLATION
Any legislation that adversely affects an obligation of a Group Party,
or the exercise by the Facility Agent, an Arranger, a Subscriber or a
Subscriber Affiliate of a right or remedy, under or relating to a
Transaction Document is excluded to the full extent permitted by law.
18.13 COUNTERPARTS
Each New Transaction Document may be executed in counterparts.
108.
18.14 ATTORNEYS
Each person who executes this document on behalf of a party under a
power of attorney declares that he or she is not aware of any fact or
circumstance that might affect his or her authority to do so under that
power of attorney.
18.15 PARTIES
Each person who is expressed to be a party to this document is not
bound by the terms of this document until that party executes this
document.
109.
EXECUTED as an agreement.
PARENT
SIGNED for BURNS, PHILP &
COMPANY LIMITED under power of
attorney in the presence of:
________________________________________
Signature of attorney
__________________________________ ________________________________________
Signature of witness Name
__________________________________ ________________________________________
Name Date of power of attorney
INITIAL BORROWERS
SIGNED for BURNS PHILP TREASURY
(AUSTRALIA) LIMITED under power of
attorney in the presence of:
________________________________________
Signature of attorney
__________________________________ ________________________________________
Signature of witness Name
__________________________________ ________________________________________
Name Date of power of attorney
137.
SIGNED for BURNS PHILP
DEUTSCHLAND GMBH under power of
attorney in the presence of:
________________________________________
Signature of attorney
__________________________________ ________________________________________
Signature of witness Name
__________________________________ ________________________________________
Name Date of power of attorney
SIGNED for BURNS PHILP INC. under
power of attorney in the presence of:
________________________________________
Signature of attorney
__________________________________ ________________________________________
Signature of witness Name
__________________________________ ________________________________________
Name Date of power of attorney
SIGNED for BURNS PHILP (NEW
ZEALAND) LIMITED under power of
attorney in the presence of:
________________________________________
Signature of attorney
__________________________________ ________________________________________
Signature of witness Name
__________________________________ ________________________________________
Name Date of power of attorney
138.
SIGNED for BURNS PHILP FOOD
LIMITED under power of attorney in the
presence of:
________________________________________
Signature of attorney
__________________________________ ________________________________________
Signature of witness Name
__________________________________ ________________________________________
Name Date of power of attorney
SIGNED for BPC1 PTY LIMITED under
power of attorney in the presence of:
________________________________________
Signature of attorney
__________________________________ ________________________________________
Signature of witness Name
__________________________________ ________________________________________
Name Date of power of attorney
139.
ARRANGERS
SIGNED for CREDIT SUISSE FIRST
BOSTON, MELBOURNE BRANCH by its
authorised signatories in the
presence of:
________________________________________
Signature of authorised signatory
__________________________________ ________________________________________
Signature of witness Name
__________________________________ ________________________________________
Name Signature of authorised signatory
________________________________________
Name
140.
SIGNED for BOS INTERNATIONAL
(AUSTRALIA) LIMITED under power of
attorney in the presence of:
________________________________________
Signature of attorney
__________________________________ ________________________________________
Signature of witness Name
__________________________________ ________________________________________
Name Date of power of attorney
SIGNED for CREDIT AGRICOLE
INDOSUEZ AUSTRALIA LIMITED
under power of attorney in
the presence of:
________________________________________
Signature of attorney
__________________________________ ________________________________________
Signature of witness Name
__________________________________ ________________________________________
Name Date of power of attorney
141.
FACILITY AGENT
SIGNED for CREDIT SUISSE FIRST
BOSTON, MELBOURNE BRANCH by its
authorised signatories in the
presence of:
________________________________________
Signature of authorised signatory
__________________________________ ________________________________________
Signature of witness Name
__________________________________ ________________________________________
Name Signature of authorised signatory
________________________________________
Name
INITIAL SUBSCRIBERS
SIGNED for CREDIT SUISSE FIRST
BOSTON, MELBOURNE BRANCH by its
authorised signatories in the
presence of:
________________________________________
Signature of authorised signatory
__________________________________ ________________________________________
Signature of witness Name
__________________________________ ________________________________________
Name Signature of authorised signatory
________________________________________
Name
142.
SIGNED for BOS INTERNATIONAL
(AUSTRALIA) LIMITED under power of
attorney in the presence of:
________________________________________
Signature of attorney
__________________________________ ________________________________________
Signature of witness Name
__________________________________ ________________________________________
Name Date of power of attorney
SIGNED for CREDIT AGRICOLE
INDOSUEZ AUSTRALIA LIMITED by
its authorised signatory in the
presence of:
________________________________________
Signature of authorised signatory
__________________________________ ________________________________________
Signature of witness Name
__________________________________ ________________________________________
Name Date of power of attorney
143.