EXHIBIT 10.27
MALLESONS STEPHEN JAQUES
Amendment and
Restatement Agreement -
Term A 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
6315410_1
AMENDMENT AND RESTATEMENT AGREEMENT -
TERM A FACILITY AGREEMENT
Details
INTERPRETATION - definitions are at the end of the General Terms
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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 Term A Facility Agreement dated 16 January 2003 between Burns,
DOCUMENT Philp & Company Limited (ABN 65 000 000 359), the entities
(clause 5) 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 See Signing page
AMENDING
AGREEMENT
(C)Mallesons Stephen Jaques Amendment and Restatement Agreement - 1
6315410_1 Term A Facility Agreement
21 February 2003
AMENDMENT AND RESTATEMENT AGREEMENT -
TERM A FACILITY AGREEMENT
General terms
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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.
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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.
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.
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3 GENERAL
Clauses 12 ("GENERAL") applies mutatis mutandis to this agreement as if
it was 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.
(C)Mallesons Stephen Jaques Amendment and Restatement Agreement - 2
6315410 1 Term A Facility Agreement
21 February 2003
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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.
(C)Mallesons Stephen Jaques Amendment and Restatement Agreement - 3
6315410 1 Term A Facility Agreement
21 February 2003
SIGNING PAGE
DATED: 21 February 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 Amendment and Restatement Agreement - 6
6315410 1 Term A Facility Agreement
21 February 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 in the /s/ Helen Golding
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 Amendment and Restatement Agreement - 7
6315410 1 Term A Facility Agreement
21 February 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
_________________________________ _____________________________________
Signature of witness Name
Elizabeth Vuong 20 February 2003
_________________________________ _____________________________________
Name Date of power of attorney
FACILITY AGENT
SIGNED for CREDIT SUISSE FIRST
BOSTON, MELBOURNE BRANCH by its /s/ Michael Tierney
authorised signatories in the presence of: _____________________________________
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
INITIAL SUBSCRIBERS
SIGNED for BOS INTERNATIONAL
(AUSTRALIA) LIMITED under power of /s/ Jeff Clark
attorney in the presence of: _____________________________________
Signature of attorney
/s/ Melanie Butcher Jeff Clark
_________________________________ _____________________________________
Signature of witness Name
Melanie Butcher 21 February 2003
_________________________________ _____________________________________
Name Date of power of attorney
(C)Mallesons Stephen Jaques Amendment and Restatement Agreement - 8
6315410 1 Term A Facility Agreement
21 February 2003
SIGNED for CREDIT AGRICOLE
INDOSUEZ AUSTRALIA LIMITED /s/ Jeff Clark
under power of attorney in the presence of:_____________________________________
Signature of attorney
/s/ Melanie Butcher Jeff Clark
_________________________________ _____________________________________
Signature of witness Name
Melanie Butcher 20 February 2003
_________________________________ _____________________________________
Name Date of power of attorney
SIGNED for CREDIT SUISSE FIRST
BOSTON, MELBOURNE BRANCH by its /s/ Michael Tierney
authorised signatories in the presence of: _____________________________________
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 - 9
6315410 1 Term A Facility Agreement
21 February 2003
ANNEXURE A
(C)Mallesons Stephen Jaques Amendment and Restatement Agreement - 10
6315410 1 Term A Facility Agreement
21 February 2003
MALLESONS STEPHEN JAQUES
TERM A 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
6311275_4
TEAM A 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 6
1.4 Issue of Term Debentures 6
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2 COMMITMENT, PURPOSE AND AVAILABILITY OF FACILITY 6
2.1 Provision of Commitment 6
2.2 Maximum accommodation 6
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 6
3.2 Requirements for a Drawdown 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
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4 INTEREST 9
4.1 Interest Periods 9
4.2 Parent may change Interest Periods 10
4.3 Accrual and payment of interest 10
4.4 Notification of Interest Rate 10
4.5 Accrual and calculation of interest 11
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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 SWITCHING 12
6.1 Parent may switch Funding Portions 12
6.2 Requirements for a Switch Notice 12
6.3 Amount of Replacement Funding Portion 13
6.4 Switching of Funding Portions on the Switch Date 13
6.5 Conditions precedent to switching a Funding Portion 14
6.6 Lack of appropriate funding 14
6.7 Facility Agent's discretions concerning conditions precedent 15
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7 UNUSED COMMITMENT FEE 15
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8 REPAYMENT 15
8.1 Notice of voluntary prepayment 15
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8.2 Mandatory prepayment 16
8.3 Amortisation 19
8.4 Currency fluctuation 20
8.5 Repayment on Termination Date 20
8.6 Limit on repayment 20
8.7 Repayments reduce Commitments 20
8.8 Paid Up Amount and Face Value Amount 20
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9 OPTIONAL REDUCTION OF COMMITMENTS DURING AVAILABILITY PERIOD 21
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10 OBLIGATIONS IN RELATION TO OFFER OR SALE OF TERM DEBENTURES 22
10.1 No disclosure document 22
10.2 Restrictions on offer and sales of Term Debentures 22
10.3 Subscribers to observe laws 23
10.4 US selling restriction 23
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11 OBLIGATIONS IN RELATION TO PUBLIC OFFER 23
11.1 Underwriters' undertakings 23
11.2 Borrowers' Undertakings 24
11.3 Warranties of each Subscriber 24
11.4 Each Subscriber and the Facility Agent to provide further information 24
11.5 Debenture Trust Deed and Master Debentures 25
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12 GENERAL 25
12.1 Incorporation of clauses from the Senior Funding Agreement 25
12.2 Attorneys 25
SCHEDULE 1 - INITIAL BORROWERS 26
SCHEDULE 2 - INITIAL SUBSCRIBERS 27
SCHEDULE 3 - DRAWDOWN NOTICE 30
SCHEDULE 4 - NOTICE VARYING INTEREST PERIOD 32
SCHEDULE 5 - SWITCH NOTICE 33
SIGNING PAGE 35
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TERM A 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
- ----------------------------------------------------------------------------------------------------
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
SUBSCRIBER THE FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 2
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DATE OF AGREEMENT See Signing page
(C)Mallesons Stephen Jaques Term A Facility Agreement 1
tla term facility agreement - 11 March 2003
TERM A 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(9) of the
Tax Act.
AVAILABILITY PERIOD means the period commencing on the date of this
document and ending 9 months after that date or such later date as the
Facility Agent (acting on instructions of all the Subscribers) may
agree.
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 Term Debentures and by the paying up of unpaid amounts
in relation to the aggregate Face Value Amount of those Term
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 Term Debenture, the amount
expressed as the face value amount of that Term Debenture, as recorded
in the Register.
FACILITY means the multicurrency term debenture subscription facility
made available under this document.
FACILITY COMMITMENT means the sum of the Commitments, initially being
AUD 1,300,000,000.
FUNDING PORTION means each portion of the Facility Commitment provided
under this agreement by the subscription for Term Debentures and by the
(C)Mallesons Stephen Jaques Term A Facility Agreement 2
tla term facility agreement - 11 March 2003
paying up of the relevant unpaid portion of the aggregate Face Value
Amount of those Term Debentures which has the same Borrower, the same
Drawdown Date and the same Interest Period.
INCREMENTAL LENDER has the meaning given to that term in the Term B
Facility Agreement.
INCREMENTAL LOANS has the meaning given to that term in the Term B
Facility Agreement.
INITIAL TERM DEBENTURES means the initial Term Debentures issued on the
first Funding Portion being provided under the Facility.
INTEREST PAYMENT DATE means, for an Interest Period:
(a) the last day of that Interest Period; and
(b) if the Interest Period is greater than 6 months, the day that
is 6 months after the first day of that Interest Period.
INTEREST PERIOD means, for a Funding Portion, a period determined in
accordance with clause 4.1.
INTEREST RATE means, for an Interest Period for 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 Interest Period; and
(b) the Margin on the first day of the Interest Period.
LENDER has the meaning given to that term in the Term B Facility
Agreement and the TLB (Tranche 2) Facility Agreement, as applicable.
MARGIN means:
(a) for an Interest Period that begins on or within 6 months of
the first Drawdown Date - 2.50% per annum;
(b) subject to paragraph (a), for an Interest Period, 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:
(C)Mallesons Stephen Jaques Term A Facility Agreement 3
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GEARING RATIO MARGIN
- ---------------------------------------------
3.51 times or greater 2.50%
- ---------------------------------------------
3.26 times or greater but less 2.25%
than 3.51 times
- ---------------------------------------------
3.01 times or greater but less 2.00%
than 3.26 times
- ---------------------------------------------
2.51 times or greater but less 1.75%
than 3.01 times
- ---------------------------------------------
Less than 2.51 times 1.50%
- ---------------------------------------------
MASTER DEBENTURE has the meaning given to that term in the Debenture
Trust Deed.
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.
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 Term Debenture at any time, the
total amount paid up by the Subscriber for that Term Debenture, as
recorded in the Register.
PERMITTED INTEREST PERIOD 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 Interest Period is intended to enable the
relevant Borrower to improve the alignment of Interest Periods
with hedging periods under interest rate Treasury Transactions
entered into by the Group or to align Interest Periods with
the timing of repayment obligations or prepayments under this
document.
REDUCTION DATE means a date set out in the table in clause 8.3(a).
REGISTER means the register of Debenture Holders maintained under the
Debenture Trust Deed.
REPLACEMENT FUNDING PORTION means a Funding Portion that is, or is to
be, provided in accordance with clause 6.
SENIOR FUNDING AGREEMENT means the document entitled "TLA Senior
Funding Agreement" dated 16 January 2003 between the parties to this
document and others.
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SHARE means:
(a) for a Subscriber, in relation to a proposed Funding Portion or
Replacement 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.
SWITCH AMOUNT means an amount specified as such in a Switch Notice.
SWITCH DATE means the date on which a Funding Portion is, or is
proposed to be, provided to a Borrower under a Switch Notice.
SWITCH FUNDING PORTION means a Funding Portion that is, or is proposed
to be, repaid in part or in full on a Switch Date under clause 6.
SWITCH NOTICE means a properly completed notice substantially in the
form set out in schedule 5.
TAX ACT means the Income Tax Assessment Act 1936 (Cth).
TERM B FACILITY means the facility made available under the Term B
Facility Agreement.
TERM DEBENTURE has the meaning given to that term in the Debenture
Trust Deed.
TLB (TRANCHE 2) FACILITY means the facility made available under the
TLB (Tranche 2) Facility Agreement.
TOTAL UNDRAWN COMMITMENT means the Facility Commitment less the
aggregate AUD Equivalent of the Paid Up Amount under all Term
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.
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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 TERM DEBENTURES
References in the Transaction Documents to the issue of Term Debentures
are references to the issue of the Master Debenture to which the Term
Debentures relate and to the recording in the Register of the details
of the Term Debentures and the Debenture Holders of those Term
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
Term Debenture and paying up any unpaid amount of the Face Value Amount
of that Term Debenture.
2.2 MAXIMUM ACCOMMODATION
The aggregate Face Value Amount of Term 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.
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 an Eligible Purpose.
3 FUNDING PROCEDURES
3.1 DELIVERY OF DRAWDOWN 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.
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(b) Promptly after receipt of a Drawdown Notice, the Facility
Agent must notify each Subscriber of its contents and of each
Subscriber's Share of the Funding Portion requested.
(c) If a Drawdown 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(b)
until the next Business Day.
3.2 REQUIREMENTS FOR A DRAWDOWN NOTICE
A Drawdown Notice:
(a) must be in writing in the form of, and specifying the matters
set out in schedule 3;
(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 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;
(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 is given) rounded to the nearest
million in the denominated currency; and
(f) specify an Interest Period for each proposed Funding Portion
that:
(i) is a Permitted Interest Period; and
(ii) reflects as far as possible the hedging periods under
the interest rate Treasury Transactions entered into
by Borrowers.
A Drawdown Notice is effective when received by the Facility Agent as
contemplated by clause 3.2(b) and, once effective, is irrevocable.
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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, 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 Term Debenture (calculated on the Drawdown Date) to exceed
either its Commitment or the Face Value Amount of its Term 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.
3.4 CONDITIONS PRECEDENT
A Subscriber is not obliged to provide any Funding Portion, or its
Share of any Funding Portion (or procure that a Subscriber Affiliate
provides 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 as provided in clause 4 of the Senior Funding
Agreement are true on the Drawdown Date with reference to the
facts and circumstances subsisting at that date; and
(c) 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.
3.5 LACK OF APPROPRIATE FUNDING
If:
(a) the Parent delivers a Drawdown Notice (the date on which the
Drawdown Notice is delivered being the "Delivery Date"); and
(b) the Facility Agent notifies the Parent on or before the
Drawdown 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 Interest
Period 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
(C)Mallesons Stephen Jaques Term A Facility Agreement 8
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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 to
specify an alternative currency or term for that Funding Portion (in
which case the amended Drawdown Notice is deemed to have been delivered
on the Delivery Date), the Drawdown 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.
4 INTEREST
4.1 INTEREST PERIODS
(a) The initial Interest Period for a Funding Portion commences on
the Drawdown Date or Switch Date for that Funding Portion.
Each subsequent Interest Period for that Funding Portion
commences on the day when the preceding Interest Period for
that Funding Portion expires.
(b) Subject to paragraphs (c) and (d) and to clause 3.2, each
Interest Period for a Funding Portion is the Permitted
Interest Period specified in the Drawdown Notice or Switch
Notice for that Funding Portion.
(c) An Interest Period that would otherwise end on a day that is
not a Business Day ends on the preceding Business Day.
(d) An Interest Period for a Funding Portion that would otherwise
end after the Termination Date ends on the Termination Date
or, if the
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Termination Date is not a Business Day, on the last Business
Day before the Termination Date.
(e) If the Parent selects a term for an Interest Period in a
Drawdown Notice, Switch Notice or notice under clause 4.2 that
is not 1, 2, 3 or 6 months, that selection applies only for
the immediately following Interest Period, and any later
Interest Period will have a term of 3 months, unless the
Parent selects a different term in accordance with clause 4.2.
4.2 PARENT MAY CHANGE INTEREST PERIODS
Subject to clause 4.1(e), the Parent may vary the Interest Periods for
a Funding Portion, with effect from the end of the current Interest
Period for that Funding Portion, by notifying the Facility Agent that
it wants to do so by a notice that:
(a) must be signed by an Authorised Representative of the Parent;
(b) must be received by the Facility Agent no later than 4.00 pm
(Melbourne time) 3 Business Days before the end of the current
Interest Period (or such shorter period as the Facility Agent
may agree in writing)
(c) identifies the relevant Funding Portion and a replacement
Interest Period that:
(i) is a Permitted Interest Period; and
(ii) minimises the Group's net exposure to foreign
exchange and interest rate risk by reference to the
rights and obligations of Group Members under
Treasury Transactions; and
(d) is substantially in the form of schedule 4.
The notice is effective when received by the Facility Agent as
contemplated by paragraph (b) and, once effective, is irrevocable.
4.3 ACCRUAL AND PAYMENT OF INTEREST
(a) Interest accrues on each Funding Portion over each Interest
Period at the Interest Rate for the Borrowing Currency in
which the Funding Portion is denominated and for that Interest
Period for that Funding Portion.
(b) Each Borrower must pay the interest that accrues on each of
its Funding Portions over each Interest Period, in the
Borrowing Currency in which the Funding Portion is
denominated, in arrears on each Interest Payment Date for that
Interest Period to the Facility Agent (for the account of the
Subscribers).
4.4 NOTIFICATION OF INTEREST RATE
The Facility Agent must notify the Parent of the Interest Rate for an
Interest Period for a Funding Portion promptly after it has calculated
it.
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4.5 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
(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
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.
(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 Term 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 Term
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 Term Debenture recorded in the
Register as being held by a Subscriber will be equal to the
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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.
(g) The Paid Up Amount of each Term 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 Term 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 SWITCHING
6.1 PARENT MAY SWITCH FUNDING PORTIONS
The Parent, on behalf of the relevant Borrowers, may request that part
or all of an outstanding Funding Portion be repaid at the end of its
current Interest Period and that a replacement Funding Portion be drawn
by a Borrower in another currency (as long as it is a Borrowing
Currency for that Borrower), by giving a Switch Notice to the Facility
Agent in accordance with this clause.
6.2 REQUIREMENTS FOR A SWITCH NOTICE
A Switch Notice must:
(a) be signed by an Authorised Representative of the Parent on
behalf of the relevant Borrowers;
(b) be given to the Facility Agent not later than 2.00 pm
(Melbourne time) 3 Business Days before the Switch Date
specified in the notice (or such shorter period as the
Facility Agent may agree in writing);
(c) identify, the proposed Switch Funding Portion and the proposed
Switch Amount, which amount must be equal to either:
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(i) the outstanding amount of the Switch Funding Portion;
or
(ii) an amount that has an AUD Equivalent of AUD5,000,000
or a multiple of AUD2,000,000 that is greater than
that amount (calculated at the relevant Spot Rate for
the day on which the notice is given) rounded to
nearest million in the denominated currency;
(d) specify the Borrower of the proposed Replacement Funding
Portion and the Borrowing Currency for that Borrower in which
the proposed Replacement Funding Portion is to be denominated;
and
(e) specify an Interest Period for the proposed Replacement
Funding Portion that:
(i) is a Permitted Interest Period; and
(ii) reflects as far as possible the hedging periods under
interest rate Treasury Transactions entered into by
Borrowers.
A Switch Notice is effective when given to the Facility Agent as
contemplated by paragraph (b) and, once effective, is irrevocable.
6.3 AMOUNT OF REPLACEMENT FUNDING PORTION
(a) The principal amount of a Replacement Funding Portion is to be
equal to the amount in the proposed currency for the Funding
Portion that the Facility Agent would be able to acquire with
the Switch Amount using the relevant Spot Rate on the proposed
Switch Date.
(b) If the Parent gives a Switch Notice in accordance with clause
6.2, the Facility Agent must calculate the principal amount of
the Replacement Funding Portion and advise the Parent and the
affected Subscribers as soon as it is able to.
6.4 SWITCHING OF FUNDING PORTIONS ON THE SWITCH DATE
Subject to clauses 6.5 and 6.6, if the Parent gives a Switch Notice in
accordance with clause 6.2:
(a) the Borrower of the Switch Funding Portion must repay that
Funding Portion on the Switch Date by an amount equal to the
Switch Amount; and
(b) each Subscriber must provide (or procure that a Subscriber
Affiliate provides) its Share of the Replacement Funding
Portion, to the Borrower of the Replacement Funding Portion,
through its relevant Lending Office on the Switch Date,
and the Paid Up Amount of each Term Debenture recorded in the Register
as being held by a Subscriber will be decreased by an amount equal to
that Subscriber's Share of the Switch Amount repaid and the Paid Up
Amount of each Term Debenture recorded in the Register as being held by
a Subscriber will be increased by an amount equal to that Subscriber's
Share of the Replacement Funding Portion.
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6.5 CONDITIONS PRECEDENT TO SWITCHING A FUNDING PORTION
Clause 6.4 only takes effect in relation to a Switch Notice if:
(a) clause 6.2 has been complied with;
(b) the representations and warranties in clause 4 of the Senior
Funding Agreement which are taken to be repeated on each
Switch Date are true on the Switch Date to the extent and on
the basis contemplated by clause 4.4 of the Senior Funding
Agreement; and
(c) no Event of Default has occurred and is continuing, and that
the provision of the Funding Portion will not result in the
occurrence of an Event of Default.
6.6 LACK OF APPROPRIATE FUNDING
If:
(a) the Parent delivers a Switch Notice (the date on which the
Switch Notice is delivered being the "Switch Delivery Date");
and
(b) the Facility Agent notifies the Parent on or before the Switch
Date that:
(i) it or any relevant Subscriber or Subscriber Affiliate
is unable (for any reason) to obtain funding of the
requested Replacement Funding Portion (other than a
Replacement Funding Portion denominated in Australian
Dollars or United States Dollars) in the currency or
for the Interest Period 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 the requested Replacement Funding
Portion (other than a Replacement 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 the requested
Replacement Funding Portion (other than a Replacement
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 Switch Notice, to
specify an alternative currency or term for that Replacement Funding
Portion (in which case the amended Switch Notice is deemed to have been
delivered on the Switch Delivery Date), the Switch Notice is taken to
be withdrawn.
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6.7 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 the switching of a
Funding Portion under this clause.
(b) Where a postponement is allowed under paragraph (a), the
Parent and the relevant Borrowers must comply with the terms
of the postponement. The Parent and the relevant Borrowers
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 relevant Subscribers
that each item referred to in clause 6.2 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.
7 UNUSED COMMITMENT FEE
The Parent must pay the Facility Agent for the account of the
Subscribers an unused commitment fee in Australian Dollars equal to
0.5% per annum of the amount by which the AUD Equivalent of the
principal amount of outstanding Funding Portions on each day is less
than the Facility Commitment on that day. This fee:
(a) accrues daily from the date of this document up to and
including the last day of the Availability Period;
(b) is calculated on the basis of the actual number of days
elapsed and a 365 day year; and
(c) is payable in arrears on the last day of the Availability
Period.
8 REPAYMENT
8.1 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 Term
Debenture, by giving a notice to the Facility Agent that:
(i) must be signed by an Authorised Representative of the
Parent;
(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
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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 Term 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) Amounts prepaid under this subclause may not be redrawn.
8.2 MANDATORY PREPAYMENT
(a) If a Group Party is required under clause 7 of the Senior
Funding Agreement to ensure that an amount is applied towards
repayment or reduction of the Paid Up Amount of Term
Debentures, the Parent must ensure that the relevant amount
(converted as required into the relevant currencies) is
immediately paid to the Facility Agent and applied in
accordance with paragraph (e) towards either:
(i) pro rata repayment of the Facility, the Term B
Facility and the Incremental Loans and the TLB
(Tranche 2) Facility; or
(ii) if any Lender or Incremental Lender (as the case may
be) waives, as contemplated by section 2.13 of the
Term B Facility, the entitlement to receive pro rata
repayment as contemplated by clause 8.2(a)(i), the
amount that would have otherwise been applied towards
repayment of the Term B Facility or the Incremental
Loans (as the case may be) must be applied towards
repayment of the Facility and the TLB (Tranche 2)
Facility.
(b) If a Group Member receives proceeds of an insurance claim as a
result of the loss, damage or destruction of any property of
the Group, and the aggregate amount of such proceeds that the
Group has received over the then current Financial Year
exceeds AUD10,000,000 (calculated, to the extent that proceeds
are received in currencies other than Australian Dollars, at
the Spot Rate on the date of receipt), the Parent must ensure
that the proceeds (converted as required into the relevant
currencies) are immediately paid to the
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Facility Agent and applied in accordance with paragraph (e)
towards either:
(i) pro rata repayment of the Facility, the Term B
Facility and the Incremental Loans and the TLB
(Tranche 2) Facility; or
(ii) if any Lender or Incremental Lender (as the case may
be) waives, as contemplated by section 2.13 of the
Term B Facility, the entitlement to receive pro rata
repayment as contemplated by clause 8.2(b)(i), the
amount that would have otherwise been applied towards
repayment of the Term B Facility or the Incremental
Loans (as the case may be) must be applied towards
repayment of the Facility and the TLB (Tranche 2)
Facility,
except to the extent that:
(iii) a Group Member has already applied funds from other
sources; or
(iv) those proceeds are themselves applied within 180 days
(or if the Parent can demonstrate to the reasonable
satisfaction of the Facility Agent that the proceeds
will be so applied within a longer period, such
longer period agreed to by the Facility Agent) after
receipt,
towards reinstatement or replacement of the lost, damaged or
destroyed property, or to meet a liability in respect of which
those proceeds were received.
(c) The Parent must ensure, within 60 days after the end of each
calendar year commencing on 31 December 2003, that an amount
equal to the percentage of the Free Cash Flow (as determined
in accordance with the table set out at the end of this
paragraph by reference to the Senior Debt Ratio as at the end
of that calendar year as advised under clause 5.2(c) of the
Senior Funding Agreement) for that calendar year (converted as
required into the relevant currencies) is paid to the Facility
Agent and applied in accordance with paragraph (e) towards
either:
(i) pro rata repayment of the Facility, the Term B
Facility and the Incremental Loans and the TLB
(Tranche 2) Facility; or
(ii) if any Lender or Incremental Lender (as the case may
be) waives, as contemplated by section 2.13 of the
Term B Facility, the entitlement to receive pro rata
repayment as contemplated by clause 8.2(c)(i), the
amount that would have otherwise been applied towards
repayment of the Term B Facility or the Incremental
Loans (as the case may be) must be applied towards
repayment of the Facility and the TLB (Tranche 2)
Facility.
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- ---------------------------------------------------------------
PERCENTAGE OF FREE
SENIOR DEBT RATIO CASH FLOW
- ---------------------------------------------------------------
3.01 times or greater 100%
- ---------------------------------------------------------------
2.76 times or greater but less than 3.01 75%
- ---------------------------------------------------------------
2.51 times or greater but less than 2.76 50%
- ---------------------------------------------------------------
2.01 times or greater but less than 2.51 25%
- ---------------------------------------------------------------
Less than 2.01 times 0%
- ---------------------------------------------------------------
(d) If the Parent has not received a written waiver not to repay
the Term B Facility or the Incremental Loans from the facility
agent for the Term B Facility by a required payment date under
clause 8.2(a), (b), (c) or (j), the Parent will apply the
relevant amount towards pro rata repayment of the Facility,
the Term B Facility and the Incremental Loans and the TLB
(Tranche 2) Facility.
(e)
(i) Subject to paragraph (e)(ii), if the Parent is
required under clause 8.2(a), (b), (c) or (j) to
apply an amount towards repayment of the Facility,
the amount must be applied towards repayment of each
relevant Funding Portion in proportion to the AUD
Equivalent of its outstanding principal amount as at
the repayment date.
(ii) If the Parent is required under clause 8.2(a), (b),
(c) or (j) to apply an amount towards repayment of
the Facility, the Parent may elect in the relevant
notice to reallocate the amount so that the amount
that is applied towards pro rata repayment of Funding
Portions provided to a particular Borrower in a
particular currency is increased, and the amount that
is applied towards pro rata repayment of the other
Funding Portions is correspondingly reduced.
(f) On each date on which a Borrower is obliged to make a
repayment under this clause 8.2, that Borrower must also pay
all interest and fees accrued but unpaid by it on the relevant
Term Debentures under this document, and all costs payable
under clause 10.1(e) of the Senior Funding Agreement, in the
currency in which the interest, fees or costs are denominated.
(g) The obligations of the Parent and the Borrowers under this
subclause do not limit their obligations under clause 8.3,
except as described in clause 8.3(b).
(h) Amounts prepaid under this subclause may not be redrawn.
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(i) Subject to clause 8.2(j), the parties acknowledge that the
Parent is not obliged to apply the proceeds from the issue of
any shares by the Parent in prepayment or repayment of the
Facility.
(j) If, other than as set out in this clause 8.2, a Group Party is
required under section 2.13 of the Term B Facility to
mandatorily prepay an amount, the Parent must ensure that the
relevant amount (converted as required into the relevant
currencies) is immediately paid to the Facility Agent and
applied in accordance with paragraph (e), towards either:
(i) pro rata repayment of the Facility, the Term B
Facility and the Incremental Loans and the TLB
(Tranche 2) Facility; or
(ii) if any Lender or Incremental Lender (as the case may
be) waives, as contemplated by section 2.13 of the
Term B Facility, the entitlement to receive pro rata
repayment as contemplated by clause 8.2(j)(i), the
amount that would have otherwise been applied towards
repayment of the Term B Facility or the Incremental
Loans (as the case may be) must be applied towards
repayment of the Facility and the TLB (Tranche 2)
Facility.
8.3 AMORTISATION
(a) On each Reduction Date, the Borrowers (without limiting their
other obligations under this clause) must repay to the
Facility Agent (for the account of the Subscribers) one or
more Funding Portions (as selected by the Parent, or, if the
Parent makes no selection, by the Facility Agent) and reduce
the Paid Up Amount of Term Debentures, in the currency of the
relevant Funding Portion, by an aggregate amount that has an
AUD Equivalent on the relevant date that is equal to the
amount set out opposite that date in the following table (as
adjusted under paragraph (b)):
- ---------------------------------------------------------------------------
REQUIRED REDUCTION OF
REDUCTION DATE (NUMBER PAID UP AMOUNT OF TERM DEBENTURES
OF MONTHS AFTER 12 BEFORE THE TERMINATION DATE
DECEMBER 2002) (AUD EQUIVALENT)
- ---------------------------------------------------------------------------
6 35,000,000
- ---------------------------------------------------------------------------
12 35,000,000
- ---------------------------------------------------------------------------
18 55,000,000
- ---------------------------------------------------------------------------
24 55,000,000
- ---------------------------------------------------------------------------
30 85,000,000
- ---------------------------------------------------------------------------
36 85,000,000
- ---------------------------------------------------------------------------
42 100,000,000
- ---------------------------------------------------------------------------
48 100,000,000
- ---------------------------------------------------------------------------
54 125,000,000
- ---------------------------------------------------------------------------
60 Balance
- ---------------------------------------------------------------------------
The Borrower must also repay to the Facility Agent (for the
account of the Subscribers) the outstanding Paid Up Amount of
all Term Debentures on the Termination Date.
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(b) If Borrowers repay Funding Portions and reduce the Paid Up
Amount of Term Debentures on a date as contemplated by clause
8.1(a), 8.2(a), 8.2(b,) 8.2(c) or 8.2(j), the repayment
reduces the amounts that the Borrowers are obliged to repay on
subsequent dates under paragraph (a), by an aggregate amount
that is equal to the AUD Equivalent of each such repaid amount
(calculated on the date it was repaid), on a pro rata basis.
(c) On each Reduction Date, the Borrowers must also pay all
interest and fees accrued but unpaid on the relevant Term
Debentures under this document, and costs payable under clause
10.1(e) of the Senior Funding Agreement, in the currency in
which the interest, fees or costs are denominated.
8.4 CURRENCY FLUCTUATION
The parties acknowledge that Funding Portions may also be repaid under
clause 3.10 of the Senior Funding Agreement.
8.5 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
Term Debentures and redeem each Term Debenture and pay any accrued but
unpaid interest on the Term Debentures and all other amounts then
outstanding from it but unpaid under the Term Debentures, this document
or the Senior Funding Agreement, in the currency in which the Paid Up
Amount, interest or other amount is denominated.
8.6 LIMIT ON REPAYMENT
A Borrower may only prepay or repay Funding Portions and reduce the
Paid Up Amount of Term Debentures in accordance with this document.
8.7 REPAYMENTS REDUCE COMMITMENTS
Each prepayment, repayment or reduction under this clause reduces the
relevant Commitments and Face Value Amounts of the Term Debentures in
aggregate by the AUD Equivalent of the amount paid (calculated using
the relevant Spot Rate on the day of the payment), and each of those
Commitments and the Face Value Amount of each Subscriber's Term
Debenture reduces by a pro rata amount.
8.8 PAID UP AMOUNT AND FACE VALUE AMOUNT
The Paid Up Amount and Face Value Amount of each Term 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.
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9 OPTIONAL REDUCTION OF COMMITMENTS DURING AVAILABILITY PERIOD
(a) The Parent may elect during the Availability Period to reduce
the Facility Commitment 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 Term 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
(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 Term 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 8 or a reduction is made
under this clause 9 to reflect the revised Face Value Amounts
and Paid Up Amounts of the Term Debentures.
(e) Notwithstanding any other provision of a Transaction Document,
$100 (or the AUD Equivalent) of the Paid Up Amount of each
Term Debenture held by each Subscriber must not be repaid
until all moneys owing under the Facility have been paid or
satisfied in full.
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10 OBLIGATIONS IN RELATION TO OFFER OR SALE OF TERM DEBENTURES
10.1 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 Term 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 Term
Debenture, or possession or distribution of any information memorandum
or any other offering material in relation to a Term Debenture, in any
jurisdiction where action for that purpose is required.
10.2 RESTRICTIONS ON OFFER AND SALES OF TERM DEBENTURES
The Facility Agent, each Underwriter and each Subscriber agrees that it
will not:
(a) directly or indirectly offer, sell, transfer or deliver a Term
Debenture or distribute any disclosure document, prospectus,
circular, advertisement or other offering material relating to
the Term Debenture in any jurisdiction except under
circumstances that will result in compliance with the laws of
that jurisdiction; or
(b) offer a Term Debenture for issue, or invite applications for
the issue of a Term Debenture, or make any offer for the sale
or invite offers to purchase a Term 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 Term 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 Term
Debenture); or
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(c) circulate or issue a disclosure document, prospectus or other
offering material relating to a Term Debenture in Australia
which requires lodging under Chapter 6D of the Corporations
Act.
In this clause 10.2, references to a Term Debenture include a legal or
equitable right or interest in, or an option to acquire, a Term
Debenture.
10.3 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 Term
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 Term 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 10.2(b).
10.4 US SELLING RESTRICTION
The Facility Agent, each Underwriter and each Subscriber severally
acknowledges that the Term Debentures have not been registered under
the Securities Act of 1933, as amended (the "SECURITIES ACT"), and may
not 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 Term
Debentures.
11 OBLIGATIONS IN RELATION TO PUBLIC OFFER
11.1 UNDERWRITERS' UNDERTAKINGS
Each Underwriter undertakes that:
(a) the Underwriters will offer the Initial Term 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 11.1(a)(i); or
(b) within 30 days of the issue of the Initial Term Debentures to
the Underwriters in their capacity as underwriters in relation
to the
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placement of the Initial Term Debentures, offer the Initial
Term Debentures for sale or transfer in a way covered by
clause 11.1(a).
11.2 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 Term Debentures
or New Subscriber disclosed to it is known or suspected by it to be an
Associate of a Borrower.
11.3 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 Term 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 Term Debenture, carrying on a business of
providing finance, or investing or dealing in securities, in
the course of operating in financial markets;
(c) except as disclosed to the Borrowers, it is not, and at the
time it acquired a Term Debenture was not, so far as it is
aware an Associate of any other person which was offered a
Term Debenture, any other Subscriber, an Underwriter or a
Borrower.
11.4 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 Term 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 Term
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 Term
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 Term 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 Term Debentures as contemplated by clause 11.1, to
enable the Borrowers to comply with their obligations under
clause 11.2.
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(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 Term 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 Term 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
Term 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 Term
Debenture held by a Subscriber is reduced by an amount equal
to the Tax Prepayment Amount prepaid under clause 11.4(d)(ii),
as evidenced by the Register.
11.5 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.
12 GENERAL
12.1 INCORPORATION OF CLAUSES FROM THE SENIOR FUNDING AGREEMENT
Clauses 18.1 to 18.12 of the Senior Funding Agreement apply to this
document.
12.2 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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TERM A 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 Term A Facility Agreement 35
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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
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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
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