EXHIBIT 10.26
MALLESONS STEPHEN JAQUES
AMENDMENT AND
RESTATEMENT AGREEMENT -
REVOLVING FACILITY
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)
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
6315417_1
AMENDMENT AND RESTATEMENT AGREEMENT -
REVOLVING FACILITY AGREEMENT
CONTENTS
DETAILS 1
GENERAL TERMS 2
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1 AMENDMENTS 2
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2 CONFIRMATION AND ACKNOWLEDGEMENT 2
2.1 Confirmation 2
2.2 Transaction Document 2
2.3 Initial Borrower 2
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3 GENERAL 2
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4 GOVERNING LAW 2
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5 INTERPRETATION 3
5.1 Definitions 3
5.2 Interpretation 3
SIGNING PAGE 6
ANNEXURE A 10
(C)Mallesons Stephen Jaques AMENDMENT AND Restatement Agreement - Revolving i
Facility Agreement
21 February 2003
AMENDMENT AND RESTATEMENT AGREEMENT - REVOLVING FACILITY AGREEMENT
Details
INTERPRETATION - definitions are at the end of the General Terms
PARTIES PARENT, INITIAL BORROWER, 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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FACILITY AGENT Name CREDIT SUISSE FIRST BOSTON, MELBOURNE BRANCH (ABN 17
061 700 712)
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INITIAL SUBSCRIBER Name THE FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 2
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RECITALS 1. BPC1, the Parent, the Facility Agent and the Initial
Subscriber 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)
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ORIGINAL DOCUMENT Revolving Facility Agreement dated 16 January 2003 between Burns,
(clause 5) Philp & Company Limited (ABN 65 000 000 359), the entities listed
in Schedule 1 to that document, Credit Suisse First Boston,
Melbourne Branch (ABN 17 061 700 712) and the financial
institutions listed in schedule 2 to that document.
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GOVERNING LAW New South Wales.
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DATE OF AMENDING See Signing page
AGREEMENT
(C)Mallesons Stephen Jaques Amendment and Restatement Agreement - 1
6315417_1 Revolving Facility Agreement
21 February 2003
AMENDMENT AND RESTATEMENT AGREEMENT - REVOLVING FACILITY AGREEMENT
General terms
1 AMENDMENTS
As and from the Effective Date, the Original Document is
amended and restated as set out in the marked up copy of the
Original Document attached as Annexure A to this agreement.
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.
2.3 INITIAL BORROWER
Each of the parties acknowledges and agrees that:
(a) Burns Philp Treasury (Europe) BV is no longer an
Initial Borrower under the Original Document and is
released from all obligations and liabilities as an
Initial Borrower under the Original Document; and
(b) Burns Philp Deutschland GmbH has, by executing this
agreement, acceded to and become a party to the
Original Document and has assumed all of the rights,
obligations and liabilities of an Initial Borrower
under the Original Document.
3 GENERAL
Clauses 11 ("GENERAL") applies mutatis mutandis to this
agreement as if it was fully set out in this agreement.
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.
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.
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21 February 2003
Signing page
DATED: 21 February 2003
----------------
SIGNED for BURNS, PHILP &
COMPANY LIMITED under power of
attorney in the presence of: /s/ Helen Golding
---------------------------------
Signature of attorney
/s/ Elizabeth Vuong Helen Golding
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Signature of witness Name
Elizabeth Vuong 20 February 2003
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Name Date of power of attorney
INITIAL BORROWERS
SIGNED for BURNS PHILP TREASURY
(AUSTRALIA) LIMITED under power of
attorney in the presence of: /s/ Helen Golding
---------------------------------
Signature of attorney
/s/ Elizabeth Vuong Helen Golding
- ----------------------------------- ---------------------------------
Signature of witness Name
Elizabeth Vuong 20 February 2003
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Name Date of power of attorney
SIGNED for BURNS PHILP
DEUTSCHLAND GmbH under power of
attorney in the presence of: /s/ Helen Golding
---------------------------------
Signature of attorney
/s/ Elizabeth Vuong Helen Golding
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Signature of witness Name
Elizabeth Vuong 19 February 2003
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Name Date of power of attorney
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SIGNED for BURNS PHILP INC. under
power of attorney in the presence of: /s/ Helen Golding
---------------------------------
Signature of attorney
/s/ Elizabeth Vuong Helen Golding
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Signature of witness Name
Elizabeth Vuong 20 February 2003
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Name Date of power of attorney
SIGNED for BURNS PHILP (NEW
ZEALAND) LIMITED under power of
attorney in the presence of: /s/ Helen Golding
---------------------------------
Signature of attorney
/s/ Elizabeth Vuong Helen Golding
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Signature of witness Name
Elizabeth Vuong 20 February 2003
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Name Date of power of attorney
SIGNED for BURNS PHILP FOOD
LIMITED under power of attorney in the
presence of: /s/ Helen Golding
---------------------------------
Signature of attorney
/s/ Elizabeth Vuong Helen Golding
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Signature of witness Name
Elizabeth Vuong 20 February 2003
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Name Date of power of attorney
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SIGNED for BPC1 PTYLIMITED under power of
attorney in the presence of: /s/ Helen Golding
---------------------------------
Signature of attorney
/s/ Elizabeth Vuong Helen Golding
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Signature of witness Name
Elizabeth Vuong 20 February 2003
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Name Date of power of attorney
FACILITY AGENT
SIGNED for CREDIT SUISSE FIRST
BOSTON, MELBOURNE BRANCH by its
authorised signatories in the presence of: /s/ Michael Tierney
---------------------------------
Signature of authorised signatory
/s/ Melanie Butcher Michael Tierney
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Signature of witness Name
Melanie Butcher /s/ Lyndon Hsu
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Name Signature of authorised signatory
Lyndon Hsu
---------------------------------
Name
INITIAL SUBSCRIBERS
SIGNED for BOS INTERNATIONAL
(AUSTRALIA) LIMITED under power of
attorney in the presence of: /s/ Jeff Clark
---------------------------------
Signature of attorney
/s/ Melanie Butcher Jeff Clark
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Signature of witness Name
Melanie Butcher 21 February 2003
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Name Date of power of attorney
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SIGNED for CREDIT AGRICOLE
INDOSUEZ AUSTRALIA LIMITED
under power of attorney in the presence of: /s/ Jeff Clark
---------------------------------
Signature of attorney
/s/ Melanie Butcher Jeff Clark
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Signature of witness Name
Melanie Butcher 20 February 2003
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Name Date of power of attorney
SIGNED for CREDIT SUISSE FIRST
BOSTON, MELBOURNE BRANCH by its
authorised signatories in the presence of: /s/ Michael Tierney
---------------------------------
Signature of authorised signatory
/s/ Melanie Butcher Michael Tierney
- ----------------------------------- ---------------------------------
Signature of witness Name
Melanie Butcher /s/ Lyndon Hsu
- ----------------------------------- ---------------------------------
Name Signature of authorised signatory
Lyndon Hsu
---------------------------------
Name
(C)Mallesons Stephen Jaques Amendment and Restatement Agreement - 10
6315417_1 Revolving Facility Agreement
21 February 2003
ANNEXURE A
(C)Mallesons Stephen Jaques Amendment and Restatement Agreement - 10
6315417_1 Revolving Facility Agreement
21 February 2003
MALLESONS STEPHEN JAQUES
Revolving Facility
Agreement
Dated 16 January 2003
Burns, Philp & Company Limited ("Parent")
The entities listed in schedule 1 ("Initial Borrower")
Credit Suisse First Boston, Melbourne Branch ("Facility Agent")
The financial institutions listed in schedule 2 ("Initial Subscriber")
MALLESONS STEPHEN JAQUES
Level 28
Rialto
525 Collins Street
Melbourne Vic 3000
T +61 3 9643 4000
F +61 3 9643 5999
DX 101 Melbourne
REVOLVING FACILITY AGREEMENT
Contents
DETAILS 1
GENERAL TERMS 2
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1 INTERPRETATION 2
1.1 Definitions 2
1.2 Definitions in Senior Funding Agreement 5
1.3 Other interpretation clauses from Senior Funding Agreement 5
1.4 Issue of Revolving Debentures 5
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2 COMMITMENT, PURPOSE AND AVAILABILITY OF FACILITY 5
2.1 Provision of Commitment 5
2.2 Maximum accommodation 5
2.3 Several obligations and rights of Subscribers 6
2.4 Purpose of the Facility 6
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3 FUNDING PROCEDURES 6
3.1 Delivery of Drawdown Notice or Rollover Notice 6
3.2 Requirements for a Drawdown Notice or Rollover Notice 7
3.3 Subscribers to provide Share of Funding Portions 8
3.4 Conditions Precedent 8
3.5 Lack of appropriate funding 8
3.6 Facility Agent's discretions concerning conditions precedent 9
3.7 Reduction of requested Funding Portion if Commitment would
be exceeded 10
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4 INTEREST 10
4.1 Accrual and payment of interest 10
4.2 Notification of Interest Rate 10
4.3 Accrual and calculation of interest 10
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5 FACILITY 11
5.1 Subscription for, and issue of Debentures 11
5.2 Payment to Borrower 12
5.3 Debenture Trust Deed and Master Debentures 12
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6 LINE FEE 12
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7 REPAYMENT 12
7.1 Notice of voluntary prepayment 12
7.2 Repayment on Maturity Date 13
7.3 Currency fluctuation 14
7.4 Repayment on Termination Date 14
7.5 Limit on repayment 14
7.6 Paid Up Amount 14
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8 OPTIONAL REDUCTION OF COMMITMENTS DURING AVAILABILITY PERIOD 14
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9 OBLIGATIONS IN RELATION TO OFFER OR SALE OF REVOLVING DEBENTURES 15
9.1 No disclosure document 15
9.2 Restrictions on offer and sales of Revolving Debentures 15
9.3 Subscribers to observe laws 16
9.4 US selling restriction 16
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10 OBLIGATIONS IN RELATION TO PUBLIC OFFER 17
10.1 Underwriters' undertakings 17
10.2 Borrowers' Undertakings 17
10.3 Warranties of each Subscriber 17
10.4 Each Subscriber and the Facility Agent to provide further information 18
10.5 Debenture Trust Deed and Master Debentures 19
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11 GENERAL 19
11.1 Incorporation of clauses from the Senior Funding Agreement 19
11.2 Attorneys 19
SCHEDULE 1 - INITIAL BORROWERS 20
SCHEDULE 2 - INITIAL SUBSCRIBERS 21
SCHEDULE 3 - DRAWDOWN NOTICE 24
SCHEDULE 4 - ROLLOVER NOTICE 26
SIGNING PAGE 28
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REVOLVING FACILITY AGREEMENT
Details
INTERPRETATION - definitions are at the end of the General terms
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PARTIES PARENT, INITIAL BORROWER, FACILITY AGENT, INITIAL SUBSCRIBER
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PARENT Name BURNS, PHILP & COMPANY LIMITED
ABN 65 000 000 359
Address Level 23, 56 Pitt Street, Sydney, NSW, 2000
Fax (612) 9247 3272
Attention Helen Golding, Company Secretary and General Counsel
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INITIAL
BORROWER THE ENTITIES LISTED IN SCHEDULE 1
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FACILITY AGENT Name CREDIT SUISSE FIRST BOSTON, MELBOURNE BRANCH
ABN 17 061 700 712
Address Level 27, 101 Collins Street, Melbourne,
Victoria, 3000
Fax (613) 9653 3444
Attention Malcolm White, Facility Agent
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INITIAL THE FINANCIAL INSTITUTIONS LISTED IN
SUBSCRIBER SCHEDULE 2
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DATE OF See Signing page
AGREEMENT
(C)Mallesons Stephen Jaques Revolving Facility Agreement 1
tla revolving facility agreement 11 March 2003
REVOLVING FACILITY AGREEMENT
General Terms
1 INTERPRETATION
1.1 DEFINITIONS
The following definitions apply in this document.
ASSOCIATE has the meaning given to that term in section 128F(1) of the
Tax Act.
AVAILABILITY PERIOD means the period commencing on the date of this
document and ending on the Termination Date.
BORROWER means an Initial Borrower or a New Borrower.
BORROWING CURRENCY means, for a Borrower, a currency specified for that
Borrower in schedule 1.
COMMITMENT means, for a Subscriber, the amount specified as such in
schedule 2, or acquired under a Substitution Certificate, as adjusted
under this document.
DEBENTURE HOLDER has the meaning given to that term in the Debenture
Trust Deed.
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.
DRAWDOWN DATE means the date on which a Funding Portion is, or is
proposed to be, provided to a Borrower under a Drawdown Notice by the
subscription for Revolving Debentures and by the paying up of unpaid
amounts in relation to the aggregate Face Value Amount of those
Revolving Debentures.
DRAWDOWN NOTICE means a properly completed notice substantially in the
form set out in schedule 3.
FACE VALUE AMOUNT means, in relation to a Revolving Debenture, the
amount expressed as the face value amount of that Revolving Debenture,
as recorded in the Register.
FACILITY means the revolving multicurrency debenture subscription
facility made available under this document.
FACILITY COMMITMENT means, at any time, the sum of the Commitments at
that time, initially being AUD 100,000,000 as reduced under clause 8.
FUNDING PORTION means each portion of the Facility Commitment provided
under this agreement by the subscription for Revolving Debentures and
by the
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paying up of the relevant unpaid portion of the aggregate Face Value
Amount of those Revolving Debentures which has the same Borrower, the
same Drawdown Date or Rollover Date and the same Term.
INITIAL REVOLVING DEBENTURES means the initial Revolving Debentures
issued on the first Funding Portion being provided under the Facility.
INTEREST RATE means, for the Term of a Funding Portion, the rate per
annum which is the sum of:
(a) the Base Rate for the relevant currency for the period that is
the Term of that Funding Portion; and
(b) the Margin on the Drawdown Date or Rollover Date for the
Funding Portion, as applicable.
MARGIN means:
(a) for a Funding Portion that begins on or within 6 months of the
first Drawdown Date - 2.00% per annum;
(b) subject to paragraph (a), for a Funding Portion, 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) of the Senior Funding Agreement:
- ------------------------------------------------
GEARING RATIO MARGIN
- ------------------------------------------------
3.51 times or greater 2.00%
- ------------------------------------------------
3.26 times or greater but less 1.75%
than 3.51 times
- ------------------------------------------------
3.01 times or greater but less 1.50%
than 3.26 times
- ------------------------------------------------
2.51 times or greater but less 1.25%
than 3.01 times
- ------------------------------------------------
Less than 2.51 times 1.00%
- ------------------------------------------------
MASTER DEBENTURE has the meaning given to that term in the Debenture
Trust Deed.
MATURITY DATE means, for a Funding Portion, the last day of the Term of
that Funding Portion.
NEW BORROWER means a Group Member that becomes a Borrower in accordance
with clause 5.7 of the Senior Funding Agreement on the basis that it is
to share in the Commitments that are provided to an Initial Borrower
under this document.
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NEW SUBSCRIBER means a financial institution that becomes a Subscriber
for the purposes of this document in accordance with clause 13 of the
Senior Funding Agreement.
PAID UP AMOUNT means, in relation to a Revolving Debenture at any time,
the total amount paid up by the Subscriber for that Revolving
Debenture, as recorded in the Register.
PERMITTED TERM means:
(a) 1, 2, 3 or 6 months; or
(b) such other period as the Parent requests, as long as the
Facility Agent is satisfied that the choice of that period as
the Permitted Term is intended to enable the relevant Borrower
to improve the alignment of the Term of Funding Portions with
hedging periods under interest rate Treasury Transactions
entered into by the Group or to align the Term of Funding
Portions with the timing of repayment obligations under this
document.
REGISTER means the register of Debenture Holders maintained under the
Debenture Trust Deed.
REVOLVING DEBENTURE means has the meaning given to that term in the
Debenture Trust Deed.
ROLLOVER DATE means the date on which a Funding Portion is, or is
proposed to be, provided to a Borrower under a Rollover Notice.
ROLLOVER NOTICE means a properly completed notice substantially in the
form set out in schedule 4.
SENIOR FUNDING AGREEMENT means the document entitled "TLA Senior
Funding Agreement" dated 16 January 2003 between the parties to this
document and others.
SHARE means:
(a) for a Subscriber, in relation to a proposed Funding Portion,
the proportion that the Subscriber's Commitment bears to the
Facility Commitment; and
(b) for a Subscriber in relation to an outstanding Funding
Portion, the proportion of the Funding Portion that is owing
to it or one of its Subscriber Affiliates.
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 in accordance with clause 13
of the Senior Funding Agreement.
SUBSCRIPTION ACCOUNT means in relation to a Borrower, the bank account
of that Borrower in the Australian Capital Territory or outside
Australia.
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TAX ACT means the Income Tax Assessment Act 1936 (Cth).
TERM means the term for which a Funding Portion may be outstanding
provided that:
(a) a Term that would otherwise end on a day that is not a
Business Day ends on the preceding Business Day; and
(b) a Term that would otherwise end after the Termination Date
ends on the Termination Date or, if the Termination Date is
not a Business Day, on the last Business Day before the
Termination Date.
TOTAL UNDRAWN COMMITMENT means the Facility Commitment less the
aggregate AUD Equivalent of the Paid Up Amount under all Revolving
Debentures.
UNDERWRITER means each of Credit Agricole Indosuez Australia Limited,
BOS International (Australia) Limited and Credit Suisse First Boston
Melbourne Branch.
1.2 DEFINITIONS IN SENIOR FUNDING AGREEMENT
Subject to the description of the parties at the start of this document
and to clause 1.1, a term that is defined in the Senior Funding
Agreement has the same meaning in this document.
1.3 OTHER INTERPRETATION CLAUSES FROM SENIOR FUNDING AGREEMENT
Clauses 1.2 to 1.6 of the Senior Funding Agreement apply to this
document.
1.4 ISSUE OF REVOLVING DEBENTURES
References in the Transaction Documents to the issue of Revolving
Debentures are references to the issue of the Master Debenture to which
the Revolving Debentures relate and to the recording in the Register of
the details of the Revolving Debentures and the Debenture Holders of
those Revolving Debentures.
2 COMMITMENT, PURPOSE AND AVAILABILITY OF FACILITY
2.1 PROVISION OF COMMITMENT
Subject to this agreement, each Subscriber must make its Commitment
available to the Borrowers under this agreement by subscribing for a
Revolving Debenture and paying up any unpaid amount of the Face Value
Amount of that Revolving Debenture.
2.2 MAXIMUM ACCOMMODATION
The aggregate Face Value Amount of Revolving Debentures to be
subscribed for by the Subscribers under this document is equal to the
Facility Commitment. The maximum applies to the Borrowers as a whole
and is not a limit applying to each Borrower individually.
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2.3 SEVERAL OBLIGATIONS AND RIGHTS OF SUBSCRIBERS
The obligations and rights of the Subscribers under this agreement and
each other Transaction Document are several and:
(a) the failure of a Subscriber to perform its obligations does
not relieve any other Subscriber from any of its obligations;
(b) no Subscriber is responsible for the obligations of any other
Subscriber or the Facility Agent (unless it is the Facility
Agent);
(c) subject to each Transaction Document, each Subscriber may
separately enforce its rights under any Transaction.
2.4 PURPOSE OF THE FACILITY
The Parent and the Borrowers must only use the proceeds of a Funding
Portion for:
(a) working capital purposes; and
(b) providing financial accommodation to Goodman and/or its
Subsidiaries to discharge or satisfy their obligations under
the GMF Securitisation Facility (PURPOSE), provided that:
(i) if the proceeds of a Funding Portion are so utilised, the
Threshold Amount will be reduced by the amount by which the
proceeds of a Funding Portion are so utilised;
(ii) the proceeds of a Funding Portion can only be utilised by the
Parent and the Borrowers for the Purpose, up to a maximum
amount of AUD50,000,000;
(iii) the Parent and the Borrowers agree that if a Funding Portion
is drawn for the Purpose, the Funding Portion will be fully
repaid within 180 days of the relevant Drawdown Date.
3 FUNDING PROCEDURES
3.1 DELIVERY OF DRAWDOWN NOTICE OR ROLLOVER NOTICE
(a) If the Parent requires a Funding Portion to be provided to a
Borrower using any of the Total Undrawn Commitment it must
deliver to the Facility Agent a Drawdown Notice under this
clause 3.1.
(b) If the Parent requires a Funding Portion provided to a
Borrower to be rolled over in the same currency it must
deliver to the Facility Agent a Rollover Notice under this
clause 3.1.
(c) Promptly after receipt of a Drawdown Notice or Rollover
Notice, the Facility Agent must notify each Subscriber of its
contents and of each Subscriber's Share of the Funding Portion
requested or to be rolled over.
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(d) If a Drawdown Notice or Rollover Notice is received by the
Facility Agent after 2.00pm (Melbourne time) on any Business
Day the Facility Agent is not obliged to notify the
Subscribers under clause 3.1(c) until the next Business Day.
3.2 REQUIREMENTS FOR A DRAWDOWN NOTICE OR ROLLOVER NOTICE
A Drawdown Notice or Rollover Notice:
(a) must be in writing in the form of, and specifying the matters
set out in schedule 3 (in the case of a Drawdown Notice) and
schedule 4 (in the case of a Rollover Notice);
(b) must be received by the Facility Agent no later than 2.00pm
(Melbourne time) on a day at least 5 Business Days before the
proposed Drawdown Date or Rollover Date, as the case may be
(or such shorter period as the Facility Agent may agree in
writing);
(c) must be signed by an Authorised Representative of the Parent
on behalf of the relevant Borrower;
(d) must specify a Business Day in the Availability Period as the
Drawdown Date or Rollover Date (being a day, in the case of a
Rollover Notice, that is the Maturity Date of the Funding
Portion being rolled over);
(e) must request, for each Borrower, an amount for each proposed
Funding Portion that:
(i) is denominated in a Borrowing Currency for that
Borrower; and
(ii) is either:
(A) AUD5,000,000 or a multiple of AUD2,000,000
that is greater than that amount; or
(B) if the Funding Portion is to be denominated
in a currency other than Australian Dollars,
an amount that has an AUD Equivalent equal
to such an amount (calculated at the
relevant Spot Rate on the day the Drawdown
Notice or Rollover Notice is given) rounded
to the nearest million in the denominated
currency; and
(f) specify a Term for each proposed Funding Portion that:
(i) is a Permitted Term; and
(ii) reflects as far as possible the hedging periods under
the interest rate Treasury Transactions entered into
by Borrowers; and
(iii) is such that the Maturity Date for the proposed
Funding Portion is a Business Day in the Availability
Period.
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A Drawdown Notice or Rollover Notice is effective when received by the
Facility Agent as contemplated by clause 3.2(b) and, once effective, is
irrevocable.
3.3 SUBSCRIBERS TO PROVIDE SHARE OF FUNDING PORTIONS
Subject to this document, if a Drawdown Notice given under clause 3.2
requests a Funding Portion or a Rollover Notice given under clause 3.2
requests a rollover of a Funding Portion, and the provision by that
Subscriber (or Subscriber Affiliate) of its Share of the Funding
Portion would not cause the AUD Equivalent of that Subscriber's Share
of outstanding Funding Portions or the AUD Equivalent of the Paid Up
Amount of that Subscriber's Revolving Debenture (calculated on the
Drawdown Date or Rollover Date) to exceed either its Commitment or the
Face Value Amount of its Revolving Debenture, then that Subscriber must
provide (or procure that a Subscriber Affiliate provides) its Share of
that Funding Portion to the Facility Agent (for the account of the
relevant Borrower) through the relevant Lending Office on the Drawdown
Date or Rollover Date.
3.4 CONDITIONS PRECEDENT
A Subscriber is not obliged to provide or rollover any Funding Portion,
or its Share of any Funding Portion (or procure that a Subscriber
Affiliate provides or rolls over any Funding Portion or its Share of
any Funding Portion) unless:
(a) clause 2.1 of the Senior Funding Agreement has been complied
with, and clause 3.2 of this document has been complied with
in relation to the Funding Portion;
(b) the representations and warranties in clause 4 of the Senior
Funding Agreement which are taken to be repeated on each
Drawdown Date and Rollover Date as provided in clause 4 of the
Senior Funding Agreement are true on the Drawdown Date or
Rollover Date with reference to the facts and circumstances
subsisting at that date; and
(c)
(i) in the case of the provision of a Funding Portion on
a Drawdown Date, no Event of Default, Potential Event
of Default or Review Event has occurred and is
continuing, and that the provision of the Funding
Portion will not result in the occurrence of an Event
of Default, Potential Event of Default or Review
Event; and
(ii) in the case of the rollover of a Funding Portion on a
Rollover Date, no Event of Default has occurred and
is continuing and that the rollover of the Funding
Portion will not result in the occurrence of an Event
of Default.
3.5 LACK OF APPROPRIATE FUNDING
If:
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(a) the Parent delivers a Drawdown Notice or Rollover Notice (the
date on which the Drawdown Notice or Rollover Notice is
delivered being the "Delivery Date"); and
(b) the Facility Agent notifies the Parent on or before the
Drawdown Date or Rollover Date that:
(i) it or any relevant Subscriber or Subscriber Affiliate
is unable (for any reason) to obtain funding of a
requested Funding Portion (other than a Funding
Portion denominated in Australian Dollars or United
States Dollars) in the currency or for the Term
requested in the ordinary course of its funding
activities in the relevant interbank markets;
(ii) for reasons affecting the relevant interbank market,
there are no appropriate means for calculating the
Interest Rate for a requested Funding Portion (other
than a Funding Portion denominated in Australian
Dollars) in accordance with the other provisions of
this document; or
(iii) the rate determined in accordance with the definition
of "Interest Rate" (ignoring the operation of this
subclause) is less than the cost to any relevant
Subscriber or Subscriber Affiliate of obtaining an
amount in the relevant currency to fund a requested
Funding Portion (other than a Funding Portion
denominated in Australian Dollars),
then, unless the Facility Agent (acting on the instructions of all
Subscribers) and the Parent agree to amend the Drawdown Notice or
Rollover Notice to specify an alternative currency or Term for that
Funding Portion (in which case the amended Drawdown Notice or Rollover
Notice is deemed to have been delivered on the Delivery Date), the
Drawdown Notice or Rollover Notice is taken to be withdrawn.
3.6 FACILITY AGENT'S DISCRETIONS CONCERNING CONDITIONS PRECEDENT
(a) The Facility Agent (acting on the instructions of all
Subscribers) may waive, or postpone the time for, fulfilment
of any condition precedent concerning a Funding Portion.
(b) Where a postponement is allowed under paragraph (a), the
Parent and the relevant Borrower must comply with the terms of
the postponement. The Parent and the relevant Borrower breach
this document if they fail to satisfy the condition by the
postponed date for compliance.
(c) A notice from the Facility Agent to the Subscribers that each
item referred to in clause 2.1 of the Senior Funding Agreement
or clause 3.2 of this document has been received or satisfied
to the Facility Agent's satisfaction, or waived or postponed
under paragraph (a), discharges in full the Facility Agent's
obligations to the Subscribers concerning those items.
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3.7 REDUCTION OF REQUESTED FUNDING PORTION IF COMMITMENT WOULD BE EXCEEDED
(a) If:
(i) the Parent requests a Funding Portion for a Borrower
in a Drawdown Notice or Rollover Notice; and
(ii) the amount specified for that Funding Portion would
cause any Subscriber's Share of outstanding Funding
Portions to exceed its Commitment immediately after
the Funding Portion is provided,
then the amount specified for that Funding Portion is taken to
be reduced to the extent that the Facility Agent decides is
necessary to ensure that no Subscriber's Share of outstanding
Funding Portions will exceed its Commitment immediately after
the Funding Portion is provided.
(b) If more than one Funding Portion is requested to be provided
on the same day, the Facility Agent may select the Funding
Portion or Funding Portions to which this sub-clause is to
apply.
4 INTEREST
4.1 ACCRUAL AND PAYMENT OF INTEREST
(a) Interest accrues on each Funding Portion at the Interest Rate
for the Borrowing Currency in which the Funding Portion is
denominated and for the Term of that Funding Portion from (and
including) its Drawdown Date or Rollover Date to (but
excluding) its Maturity Date.
(b) Each Borrower must pay to the Facility Agent (for the account
of the Subscribers) the interest that accrues on each Funding
Portion in the Borrowing Currency in which the Funding Portion
is denominated, in arrears on the Maturity Date for that
Funding Portion and if the Term of the Funding Portion is
greater than 6 months, on the day that is 6 months after its
Drawdown Date or Rollover Date.
4.2 NOTIFICATION OF INTEREST RATE
The Facility Agent must notify the Parent of the Interest Rate for a
Funding Portion promptly after it has calculated it.
4.3 ACCRUAL AND CALCULATION OF INTEREST
Interest under this clause:
(a) accrues daily; and
(b) is calculated on the basis of:
(i) the actual number of days on which interest has
accrued; and
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(ii) 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.
5 FACILITY
5.1 SUBSCRIPTION FOR, AND ISSUE OF DEBENTURES
(a) If the Parent gives a Drawdown Notice for a Funding Portion or
a Rollover Notice to rollover a Funding Portion under the
Facility then, subject to this agreement, each Subscriber must
provide (or procure that a Subscriber Affiliate provides) to
the Facility Agent its Share of the Funding Portion in the
Borrowing Currency denominated in the Drawdown Notice on the
specified Drawdown Date and in accordance with that Drawdown
Notice or in the Rollover Notice on the specified Rollover
Date and in accordance with that Rollover Notice.
(b) In the case of the first Funding Portion under the Facility,
each Subscriber must provide (or procure that a Subscriber
Affiliate provides) its Share of the Funding Portion by
subscribing in the Australian Capital Territory or outside
Australia for a Revolving Debenture recorded in the Register
as being held by that Subscriber (and its Subscriber
Affiliates) on the specified Drawdown Date.
(c) In the case of the second and each subsequent Funding Portion
under the Facility, each Subscriber must provide (or procure
that a Subscriber Affiliate provides) its Share of the Funding
Portion by paying up in the Borrowing Currency of the Funding
Portion in the Australian Capital Territory or outside
Australia part of the unpaid Face Value Amount of the
Revolving Debenture recorded in the Register as being held by
it.
(d) The Borrowers must issue a Master Debenture for the benefit of
each Subscriber on the first Drawdown Date under the Facility.
(e) The Master Debenture issued for the benefit of a Subscriber
under clause 5.1(d):
(i) must be executed and issued in the Australian Capital
Territory or outside Australia;
(ii) must be issued in or substantially in the form set
out in the Debenture Trust Deed.
(f) The Face Value Amount of each Revolving Debenture recorded in
the Register as being held by a Subscriber will be equal to
the Commitment of that Subscriber, and will have an initial
Paid Up Amount equal to that Subscriber's (and Subscriber
Affiliate's) Share of the first Funding Portion provided on
the first Drawdown Date under the Facility.
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(g) The Paid Up Amount of each Revolving Debenture recorded in the
Register as being held by a Subscriber will be increased by an
amount equal to that Subscriber's (and Subscriber Affiliate's)
Share of the second and each subsequent Funding Portion
provided under clause 5.1(c).
(h) Details of each Revolving Debenture subscribed for by a
Subscriber under this clause 5.1 will be recorded in the
Register by the Security Trustee in accordance with clause 6.6
of the Debenture Trust Deed.
5.2 PAYMENT TO BORROWER
On receipt of the amounts paid to it by the Subscribers (and Subscriber
Affiliates) under clause 5.1(b) and (c), the Facility Agent must pay
the same to a Subscription Account in the Australian Capital Territory
or outside Australia.
5.3 DEBENTURE TRUST DEED AND MASTER DEBENTURES
Each Subscriber agrees that it is bound by, and subject to, all the
provisions of the Debenture Trust Deed and each Master Debenture which
relate to or affect the rights or obligations of that Subscriber in its
capacity as a Debenture Holder.
6 LINE FEE
The Parent must pay the Facility Agent for the account of the
Subscribers a line fee in Australian Dollars equal to 0.5% per annum of
the Facility Commitment from time to time. This fee:
(a) accrues daily from the date of this document up to and
including the Termination Date;
(b) is calculated on the basis of the actual number of days
elapsed and a 365 day year; and
(c) is payable both quarterly in arrears at the end of each
calendar quarter commencing with a payment on the date which
is the first calendar quarter date after the date of this
agreement, until the Termination Date or, if earlier, on the
day on which the Facility Commitment reduces to zero.
7 REPAYMENT
7.1 NOTICE OF VOLUNTARY PREPAYMENT
(a) Subject to paragraph (b), the Parent may elect that a Borrower
prepay a Funding Portion and the Paid Up Amount of each
Revolving Debenture, by giving a notice to the Facility Agent
that:
(i) must be signed by an Authorised Representative of the
Parent;
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(ii) must be received by the Facility Agent not later than
4.00 pm (Melbourne time) at least 30 days before the
date on which the prepayment is to be made; and
(iii) identifies the relevant Borrower, the relevant
Funding Portion and prepayment date and specifies, as
the amount to be prepaid, an amount that is
AUD5,000,000 or a greater amount that is an integral
multiple of AUD2,000,000 (or, in the case of a
Funding Portion that is denominated in a currency
other than Australian Dollars, an amount that has a
corresponding AUD Equivalent on the day the notice is
given rounded to the nearest million in the
denominated currency) or an amount that is the
outstanding amount of the relevant Funding Portion.
The notice is effective when given to the Facility Agent as
contemplated by paragraph (a)(ii), is irrevocable once
effective and binds the relevant Borrower to act in accordance
with its terms.
(b) If a notice is given under paragraph (a), the relevant
Borrower must pay to the Facility Agent (for the account of
the Subscribers), on the date specified in a notice:
(i) the amount specified in the notice, in the currency
of the Funding Portion; and
(ii) all interest and fees accrued but unpaid by it on the
relevant Revolving Debentures under this document,
and costs payable under clause 10.1(e) of the Senior
Funding Agreement, in respect of the amount prepaid,
in the currency in which the interest, fees or costs
are denominated.
(c) Subject to this document, amounts prepaid under this subclause
may be redrawn.
7.2 REPAYMENT ON MATURITY DATE
(a) Subject to paragraph (b), each Borrower must repay to the
Facility Agent (for the account of the Subscribers) each
Funding Portion on the Maturity Date for that Funding Portion
in the currency of that Funding Portion.
(b) If the Maturity Date for a Funding Portion provided to a
Borrower (the "MATURING FUNDING PORTION") is also the Rollover
Date for another Funding Portion provided to that Borrower in
the same currency (the "NEW FUNDING PORTION"), the Subscribers
or that Borrower (as the case may be) are only obliged to pay
the difference (if any) between:
(i) the amount of the New Funding Portion; and
(ii) the amount of, and any interest that is due and
payable on, the Maturing Funding Portion.
(c) Subject to this document, amounts repaid may be redrawn.
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7.3 CURRENCY FLUCTUATION
The parties acknowledge that Funding Portions may also be repaid under
clause 3.10 of the Senior Funding Agreement.
7.4 REPAYMENT ON TERMINATION DATE
On the Termination Date, each Borrower must repay to the Facility Agent
(for the account of the Subscribers) the outstanding Paid Up Amount of
Revolving Debentures and redeem each Revolving Debenture and pay any
accrued but unpaid interest on the Revolving Debentures and all other
amounts then outstanding from it but unpaid under the Revolving
Debentures, this document or the Senior Funding Agreement, in the
currency in which the Paid Up Amount, interest or other amount is
denominated.
7.5 LIMIT ON REPAYMENT
A Borrower may only prepay or repay Funding Portions and reduce the
Paid Up Amount of Revolving Debentures in accordance with this
document.
7.6 PAID UP AMOUNT
The Paid Up Amount of each Revolving Debenture recorded in the Register
as being held by a Subscriber will be reduced by an amount equal to
that Subscriber's Share of any prepayment, repayment or reduction
received under this clause.
8 OPTIONAL REDUCTION OF COMMITMENTS DURING AVAILABILITY PERIOD
(a) The Parent may elect during the Availability Period to reduce
the Commitments by an amount that:
(i) is AUD5,000,000 or a greater amount that is a
multiple of AUD2,000,000, or that reduces those
Commitments to zero; and
(ii) is not greater than the Total Undrawn Commitment
(calculated using the AUD Equivalent of the Paid Up
Amounts of Revolving Debentures subscribed for under
those Commitments on the day the reduction is to take
effect) as at the date when the reduction is to take
effect,
by giving a notice in accordance with paragraph (b).
(b) A notice under paragraph (a) must:
(i) be signed by an Authorised Representative of the
Parent;
(ii) be received by the Facility Agent by 4.00 pm
(Melbourne time) at least 30 days before the date on
which the reduction is to take effect; and
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(iii) specify the aggregate amount by which the Facility
Commitment is to be reduced and the date on which the
reduction is to take effect.
The notice is effective when received by the Facility Agent as
contemplated by subparagraph (b)(ii) and, once effective, is
irrevocable.
(c) If a notice under paragraph (a) takes effect in accordance
with paragraph (b) then, on the nominated date, each
Commitment and the Face Value Amount of the Revolving
Debenture held by each Subscriber to which the notice relates
reduces by a pro rata proportion of the nominated amount.
(d) The Register will be updated by the Security Trustee on each
occasion that a prepayment or repayment of any outstanding
Funding Portion is made under clause 7 or a reduction made
under this clause 8 to reflect the revised Face Value Amounts
and Paid Up Amounts of the Revolving Debentures.
(e) Notwithstanding any other provision of a Transaction Document,
$100 (or the AUD Equivalent) of the Paid Up Amount of each
Revolving Debenture held by each Subscriber must not be repaid
until all moneys owing under the Facility have been paid or
satisfied in full.
(f) Each Commitment reduces to zero and is cancelled on the
Termination Date.
9 OBLIGATIONS IN RELATION TO OFFER OR SALE OF REVOLVING DEBENTURES
9.1 NO DISCLOSURE DOCUMENT
The Facility Agent, each Underwriter and each Subscriber acknowledges
that no disclosure document, prospectus, circular, advertisement or
other offering material in relation to the Revolving Debentures has
been lodged with the Australian Securities and Investments Commission
or any governmental agency, and no action has been taken or will be
taken in any jurisdiction which would permit a public offering of a
Revolving Debenture, or possession or distribution of any information
memorandum or any other offering material in relation to a Revolving
Debenture, in any jurisdiction where action for that purpose is
required.
9.2 RESTRICTIONS ON OFFER AND SALES OF REVOLVING DEBENTURES
The Facility Agent, each Underwriter and each Subscriber agrees that it
will not:
(a) directly or indirectly offer, sell, transfer or deliver a
Revolving Debenture or distribute any disclosure document,
prospectus, circular, advertisement or other offering material
relating to the Revolving Debenture in any jurisdiction except
under circumstances that will result in compliance with the
laws of that jurisdiction; or
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(b) offer a Revolving Debenture for issue, or invite applications
for the issue of a Revolving Debenture, or make any offer for
the sale or invite offers to purchase a Revolving Debenture to
a person that:
(i) receives the offer or invitation in Australia unless
such offer or invitation:
(A) is an offer or invitation which does not
require disclosure to investors under Part
6D.2 of the Corporations Act; and
(B) is made in compliance with the Corporations
Act, the Corporations Regulations and all
other applicable laws and regulations; or
(ii) the Facility Agent, the Underwriter or the Subscriber
(as the case may be):
(A) knows is an Associate of a Borrower (other
than in the capacity of a dealer,
underwriter or manager in relation to the
placement of the Revolving Debenture); or
(B) has been notified by a Borrower as being a
person that the Borrower knows or has
reasonable grounds to suspect is an
Associate of the Borrower (other than in the
capacity of a dealer, underwriter or manager
in relation to the placement of the
Revolving Debenture); or
(c) circulate or issue a disclosure document, prospectus or other
offering material relating to a Revolving Debenture in
Australia which requires lodging under Chapter 6D of the
Corporations Act.
In this clause 9.2, references to a Revolving Debenture include a legal
or equitable right or interest in, or an option to acquire, a Revolving
Debenture.
9.3 SUBSCRIBERS TO OBSERVE LAWS
(a) The Facility Agent, each Underwriter and each Subscriber
agrees to comply with laws in any jurisdiction in which it may
subscribe for, offer, sell, transfer or deliver Revolving
Debentures. A Borrower, Underwriter or the Facility Agent has
no responsibility for obtaining any authorisations a
Subscriber requires in connection with the subscription,
offer, sale or transfer of Revolving Debentures.
(b) The Facility Agent, each Underwriter and each Subscriber
represents and warrants that it has not done any of the things
described in clause 9.2(b).
9.4 US SELLING RESTRICTION
The Facility Agent, each Underwriter and each Subscriber severally
acknowledges that the Revolving Debentures have not been registered
under the Securities Act of 1933, as amended (the "SECURITIES ACT"),
and may not
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be offered or sold within the United States or to, or for the account
or benefit of, U.S. persons except in accordance with Regulation S or
pursuant to an exemption from the registration requirements of the
Securities Act. Accordingly, such Facility Agent, each Underwriter and
each Subscriber, and their respective affiliates, and any persons
acting on its or behalf, have not engaged and will not engage in any
directed selling efforts with respect to the Revolving Debentures.
10 OBLIGATIONS IN RELATION TO PUBLIC OFFER
10.1 UNDERWRITERS' UNDERTAKINGS
Each Underwriter undertakes that:
(a) the Underwriters will offer the Initial Revolving Debentures
for issue to at least 10 persons, each of whom:
(i) the Underwriters will reasonably believe, at the time
of the offer, will be carrying on a business of
providing finance, or investing or dealing in
securities, in the course of operating in financial
markets; and
(ii) is not known by the Underwriters (or known or
suspected by the Borrowers and notified to the
Underwriters) to be an Associate of any of the other
persons covered by clause 10.1(a)(i); or
(b) within 30 days of the issue of the Initial Revolving
Debentures to the Underwriters in their capacity as
underwriters in relation to the placement of the Initial
Revolving Debentures, offer the Initial Revolving Debentures
for sale or transfer in a way covered by clause 10.1(a).
10.2 BORROWERS' UNDERTAKINGS
Each Borrower undertakes to immediately notify the Underwriters if any
proposed offeree disclosed to the Borrower is known or suspected by the
Borrower to be an Associate of the Borrowers and agrees to notify the
Underwriters immediately if any proposed transferee of Revolving
Debentures or New Subscriber disclosed to it is known or suspected by
it to be an Associate of a Borrower.
10.3 WARRANTIES OF EACH SUBSCRIBER
Each Subscriber (other than an Underwriter) represents and warrants
that:
(a) an offer to participate in the Facility and to the subscribe
for, or acquire, a Revolving Debenture in accordance with this
agreement was made to it by an Underwriter;
(b) it was at the time of the offer, and will be at the time of
issue to it of a Revolving Debenture, carrying on a business
of providing finance, or investing or dealing in securities,
in the course of operating in financial markets;
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(c) except as disclosed to the Borrowers, it is not, and at the
time it acquired a Revolving Debenture was not, so far as it
is aware an Associate of any other person which was offered a
Revolving Debenture, any other Subscriber, an Underwriter or a
Borrower.
10.4 EACH SUBSCRIBER AND THE FACILITY AGENT TO PROVIDE FURTHER INFORMATION
(a) At the cost of the Borrowers, each Subscriber and the Facility
Agent will, provide to the Borrower, within 14 Business Days
of a receipt of a request from the Borrower, such information
of which it is aware (unless that information is confidential)
in relation to any Revolving Debenture as is reasonably
required for the purposes of assisting the Borrower to
demonstrate that the public offer test under section 128F of
the Tax Act has been satisfied in relation to the issue of the
Revolving Debentures.
(b) At the cost of the Borrowers, each Subscriber and the Facility
Agent will cooperate with, and use reasonable endeavours to
assist the Borrowers with a view to ensuring that the
Revolving Debentures are issued or offered for sale in such a
manner which will allow payments of interest or amounts in the
nature of interest on the Revolving Debentures to be exempt
from Australian withholding tax under section 128F of the Tax
Act.
(c) Each Underwriter agrees to provide the Parent with details of
all persons to whom it makes, or intends to make, offers of
the Initial Revolving Debentures as contemplated by clause
10.1, to enable the Borrowers to comply with their obligations
under clause 10.2.
(d) If, at any time, a Borrower determines in good faith that
Australian interest withholding tax is or will become payable
in respect of any outstanding Revolving Debenture held by a
Subscriber:
(i) that Subscriber must, if requested by the Borrower
and at the cost of the Borrower, take all reasonable
steps to mitigate that result before the next date
for payment of interest under the Revolving Debenture
in respect of which Australian interest withholding
tax is or will become payable; or
(ii) the Borrower may prepay the principal outstanding
(together with all accrued interest, fees and other
amounts (including amounts payable under clause
10.1(e) of the Senior Funding Agreement) outstanding
under each Transaction Document) in respect of that
Revolving Debenture (TAX PREPAYMENT AMOUNT) by giving
the Facility Agent at least 5 Business Days notice.
(e) The Face Value Amount and Paid Up Amount of each Revolving
Debenture held by a Subscriber is reduced by an amount equal
to the Tax Prepayment Amount prepaid under clause 10.4(d)(ii),
as evidenced by the Register.
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10.5 DEBENTURE TRUST DEED AND MASTER DEBENTURES
Each Subscriber agrees that it is bound by, and subject to, all the
provisions of the Debenture Trust Deed and each Master Debenture which
relate to or affect the rights or obligations of that Subscriber in its
capacity as a Debenture Holder.
11 GENERAL
11.1 INCORPORATION OF CLAUSES FROM THE SENIOR FUNDING AGREEMENT
Clauses 18.1 to 18.12 of the Senior Funding Agreement apply to this
document.
11.2 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.
EXECUTED as an agreement
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REVOLVING FACILITY AGREEMENT
Signing page
DATED: 16 JANUARY 2003
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
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
(C)Mallesons Stephen Jaques Revolving Facility Agreement 28
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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
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
(C)Mallesons Stephen Jaques Revolving Facility Agreement 29
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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
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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
(C)Mallesons Stephen Jaques Revolving Facility Agreement 31
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AMENDMENT AND RESTATEMENT AGREEMENT -
TERM A FACILITY AGREEMENT
Contents
DETAILS 1
GENERAL TERMS 2
- -----------------------------------------------------------
1 AMENDMENTS 2
- -----------------------------------------------------------
2 CONFIRMATION AND ACKNOWLEDGEMENT 2
2.1 Confirmation 2
2.2 Transaction Document 2
2.3 Initial Borrower 2
- -----------------------------------------------------------
3 GENERAL 2
- -----------------------------------------------------------
4 GOVERNING LAW 2
- -----------------------------------------------------------
5 INTERPRETATION 3
5.1 Definitions 3
5.2 Interpretation 3
SIGNING PAGE 6
ANNEXURE A 10
(C)Mallesons Stephen Jaques Amendment and Restatement Agreement - i
6315410 1 Term A Facility Agreement
21 February 2003