EXHIBIT 10.28
TRUST DEED
RELATING TO
Capital Notes
GOODMAN FINANCE LIMITED
as Issuer of the Capital Notes
AND
BURNS, PHILP & COMPANY LIMITED
as Guarantor and Issuer of Ordinary Shares in Redemption of Capital Notes
AND
THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED
as Trustee
DATE 30 April 2003
CONTENTS
1. INTERPRETATION..................................................................... 1
1.1 Definitions............................................................. 1
1.2 Interpretation.......................................................... 9
1.3 Miscellaneous........................................................... 10
1.4 Definitions in Conditions............................................... 11
1.5 Non-Business Days....................................................... 11
1.6 Changes in GAAP......................................................... 11
2. ISSUE AND CONSTITUTION OF CAPITAL NOTES............................................ 11
2.1 Constitution of Capital Notes........................................... 11
2.2 Further issue........................................................... 11
2.3 Conditions of issue..................................................... 12
2.4 Deed and Conditions binding............................................. 12
2.5 Payment of Issue Price.................................................. 12
2.6 Form of Capital Notes and Holding Certificates.......................... 12
2.7 Covenant to observe the Deed and Conditions............................. 13
2.8 Noteholder absolute owner............................................... 14
2.9 Cancellation on redemption ............................................. 14
2.10 Validity of issued Capital Notes........................................ 14
2.11 Payment of brokerage or commission - issue at discount or premium....... 14
2.12 Unclaimed payments...................................................... 14
2.13 Reinstatement........................................................... 15
2.14 Further issues.......................................................... 15
3. SUBORDINATION AND STATUS OF CAPITAL NOTES.......................................... 15
3.1 Status and subordination................................................ 15
3.2 Subordinated contingent debt............................................ 15
3.3 Other indebtedness permitted............................................ 16
3.4 No subordination of Trustee's entitlement............................... 16
3.5 Trust................................................................... 16
3.6 No Set-off.............................................................. 16
3.7 Contracts (Privity) Act 1982............................................ 16
3.8 Enforcement by Trustee.................................................. 17
3.9 Distribution on Liquidation............................................. 17
3.10 Reliance on Liquidator.................................................. 18
3.11 Termination of trusts................................................... 18
3.12 Permitted payments and receipts......................................... 18
3.13 Permitted proceedings................................................... 18
3.14 Commencement of Liquidation............................................. 19
3.15 Interest payable following Commencement of Liquidation.................. 19
3.16 Permitted payments...................................................... 19
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4. THE REGISTER....................................................................... 19
4.1 Establish and maintain Register......................................... 19
4.2 Details on Register..................................................... 19
4.3 Inspection of Register.................................................. 20
4.4 Change in details....................................................... 20
4.5 Recognition of transmission of Capital Notes............................ 20
4.6 Registration of transmission of Capital Notes........................... 20
4.7 Joint Noteholders....................................................... 20
4.8 Register conclusive..................................................... 21
4.9 Conflict between Register and Holding Certificates...................... 21
5. WARRANTIES AND COVENANTS........................................................... 21
5.1 Representations and warranties.......................................... 21
5.2 Company covenants....................................................... 22
5.3 Financial Covenant...................................................... 24
5.4 BPC Covenants........................................................... 24
5.5 Accounts and reports of directors....................................... 25
5.6 Nature of Company's Accounts............................................ 27
5.7 Auditors................................................................ 27
6. TRUSTEE'S POWER TO REMEDY AND WAIVE................................................ 27
6.1 Trustee may remedy...................................................... 27
6.2 Waiver by Trustee....................................................... 27
7. APPOINTMENT OF AND POWERS AND DISCRETIONS OF TRUSTEE............................... 27
7.1 Appointment............................................................. 27
7.2 Powers.................................................................. 27
7.3 Discretion to consult Noteholders....................................... 30
7.4 Trustee's right to be indemnified....................................... 30
7.5 Trustee may concur in modification...................................... 30
7.6 Fiduciary relationship.................................................. 31
8. MEETINGS OF NOTEHOLDERS............................................................ 32
8.1 Regulations of meetings................................................. 32
8.2 Represent Noteholders................................................... 32
9. INDEMNITY OF TRUSTEE............................................................... 32
10. RETIREMENT, REMOVAL AND NEW APPOINTMENT OF TRUSTEE................................. 32
10.1 Retirement of Trustee................................................... 32
10.2 Appointment of new Trustee.............................................. 33
11. TRUSTEE'S REMUNERATION AND EXPENSES................................................ 33
11.1 Basic remuneration...................................................... 33
11.2 Expenses................................................................ 33
11.3 Liability not terminated................................................ 34
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12. DISCLOSURE OF INFORMATION.......................................................... 34
13. NOTICES............................................................................ 34
14. DISCHARGE OF DEED.................................................................. 35
15. INVALIDITY......................................................................... 35
16. GOVERNING LAW AND JURISDICTION..................................................... 35
16.1 Governing Law........................................................... 35
16.2 Jurisdiction............................................................ 36
16.3 Process Agent........................................................... 36
SCHEDULE 1: FORM OF CAPITAL NOTE HOLDING CERTIFICATE..................................... 38
SCHEDULE 2: CONDITIONS OF THE CAPITAL NOTES.............................................. 42
SCHEDULE 3: MEETING OF NOTEHOLDERS....................................................... 58
SCHEDULE 4: EXISTING JOINT VENTURES....................................................... 66
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This TRUST DEED is made on 30 April
BETWEEN (1) GOODMAN FINANCE LIMITED (the COMPANY)
AND (2) BURNS, PHILP & COMPANY LIMITED (ABN 65 000 000 359)
(BPC)
AND (3) THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED
(the TRUSTEE)
INTRODUCTION
(A) The Company will issue Capital Notes constituted under this Deed.
(B) BPC, and certain of its subsidiaries, have agreed to guarantee all
indebtedness of the Company under this Deed. BPC has further agreed to
provide for the issue of shares of BPC in redemption of the Capital
Notes in the circumstances described in this Deed.
(C) The Securities Act 1978 and Securities Regulations 1983 require the
appointment of a trustee in respect of the Capital Notes and the
execution by the Company, BPC and the Trustee of a trust deed.
(D) The Trustee has agreed to act as trustee on behalf of the Noteholders
in accordance with this Deed.
(E) The Capital Notes are unsecured, subordinated indebtedness of the
Company. The claims of the Noteholders will, in any liquidation,
bankruptcy, reorganisation, insolvency, receivership or similar
proceeding for the benefit of creditors of the Company, rank ahead of
shareholders of the Company, but behind the claims of all other
creditors of the Company, other than creditors who have agreed to rank
subordinate to the obligations of the Company under the Capital Notes,
or pari passu with such obligations.
IT IS AGREED
1. INTERPRETATION
1.1 DEFINITIONS
In this Deed, unless the context otherwise requires:
ACCRUED INTEREST has the meaning set out in the Conditions;
APPROVED CHARTERED ACCOUNTANT means KPMG or any other firm of chartered
accountants acceptable to the Trustee which, for the avoidance of
doubt, shall be deemed to include any accountant which has been
approved by the Facility Agent to act in the equivalent role under the
Senior Facility Agreements;
ASSOCIATE means:
(a) each Existing Joint Venture; and
(b) any other corporation, partnership, joint venture, trust or
other entity that BPC is required by GAAP to recognise in its
accounts on an equity accounting basis;
A$ means the lawful currency of Australia;
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AUDITORS means the auditors for the time being appointed by the
Company;
AUSTRALIAN STOCK EXCHANGE means the Australian Stock Exchange or any
alternative or substitute market for Ordinary Shares or other
arrangement in Australia on or through which Ordinary Shares may be
freely traded and which is generally regarded as the principal market
or arrangement for the trading of Ordinary Shares in Australia;
BUSINESS DAY means a day (other than a Saturday or Sunday) on which
banks generally are open for business in Auckland and Sydney;
CALCULATION DATE means each Quarter Date in each year commencing with
the Quarter Date falling on 30 September 2003;
CAPITAL NOTES means the unsecured, subordinated capital notes in an
aggregate Principal Amount not exceeding $250,000,000, constituted by
this Deed and which are for the time being outstanding and includes the
relevant Conditions applicable to such capital notes but, unless the
context requires otherwise, does not include any Further Capital Notes;
COMMENCEMENT OF LIQUIDATION means the commencement of Liquidation under
section 241(5) or section 317 of the Companies Act 1993, as the case
may be, or under any similar legislation under which the Company, BPC
or any of its Subsidiaries will cease to be duly incorporated or to
validly exist or the date on which a statutory manager is appointed to
the Company, BPC or any of its Subsidiaries under the Corporations
(Investigations and Management) Act 1989 and includes any analogous
proceedings in any other jurisdiction;
CONDITIONS means the terms and conditions (including, where
appropriate, New Conditions) from time to time applicable to the
Capital Notes in the form set out in Schedule 2 (as modified from time
to time in accordance with this Deed);
COST SAVINGS means:
(a) an initial amount of A$50,000,000 in respect of the
acquisition of shares in Goodman Fielder Limited and an
initial amount of A$8,000,000 in respect of the acquisition of
the Fleischmann business unit from Kraft Foods International
Inc., as each such amount is reduced on each Calculation Date
by the total annualised realised cost savings achieved in the
quarter ending on that Calculation Date from the integration
of Goodman Fielder Limited and the Fleischmann business unit
into the Group, which realised cost savings and reductions
have been verified by an Approved Chartered Accountant and a
copy of that review has been delivered to the Trustee,
provided that:
(i) the amount in respect of the acquisition of shares in
Goodman Fielder Limited and integration of Goodman
Fielder Limited into the Group, shall reduce to zero
by the date which is 12 months after Goodman Fielder
Limited becomes a wholly-owned Subsidiary of BPC; and
(ii) the amount in respect of the acquisition and
integration of the Fleischmann business unit into the
Group, shall reduce to zero on the date which is 12
months after the earlier of the date BPC receives all
Brazilian anti-trust approvals required in relation
to the acquisition of the Fleischmann business unit
and 30 June 2003; and
(b) in relation to any acquisition (other than an acquisition
referred to in paragraph (a)), an amount in respect of a cost
saving plan (including the amount, time frame and anticipated
milestone dates for any cost savings) agreed between BPC and
the Trustee in relation to that acquisition;
DEEDS OF GUARANTEE means each deed of guarantee entered into by
Subsidiaries of BPC in support of the Company's obligations under this
Deed (including, without limitation, in respect of the Capital Notes)
and DEED OF GUARANTEE means each of them;
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EBIT means for the Group for a period, an amount equal to the
consolidated net profit after tax of the Group for the period that
would be disclosed by consolidated financial statements of the Group if
they were prepared in accordance with GAAP as at the last day of that
period, after:
(a) deducting an amount equal to:
(i) profits relating to unrealised revaluations included
in consolidated net profit after tax;
(ii) profits realised on the sale or other disposition of
any asset not manufactured or acquired for disposal
in the ordinary course of ordinary business or which
is unusual in nature; and
(iii) unrealised exchange gains included in consolidated
net profit after tax; and
(b) adding back an amount equal to:
(i) the provision for income tax and other taxation (if
any) levied in Australia or anywhere else on or by
reference to income or profits relating to that
period;
(ii) the Net Interest Expense for that period;
(iii) losses realised on the sale or other disposition of
any asset not manufactured or acquired for disposal
in the ordinary course of ordinary business or which
is unusual in nature (including as a result of
revaluations), to the extent that those losses have
been charged against that profit;
(iv) unrealised exchange losses relating to that period;
(v) any Restructuring Costs;
(vi) any incremental annualised realised cost savings
relating to that period that have been reviewed and
verified by an Approved Chartered Accountant
(provided that in relation to cost savings described
in sub-paragraphs (a)(i) and (ii) of the definition
of Cost Savings, such incremental annualised realised
cost savings shall reduce to zero with effect from
the applicable date in sub-paragraph (a)(i) and (ii)
respectively); and
(vii) outside equity interests relating to that period.
For the purposes of calculating EBIT for any Subsidiary or business
acquired in any period, provided such EBIT has been verified by an
Approved Chartered Accountant and a copy of that review is delivered to
the Trustee, EBIT will be adjusted to take into account the effects of
any acquisitions made during the period. The adjustments will be made
on the basis that the acquired Subsidiary or business had been acquired
on the first day of the period and the EBIT for that acquired
Subsidiary or business for the whole of the period was included in the
EBIT of the Group for that period.
EBITDA means for the Group for a period, the sum of:
(a) EBIT for the Group for that period; and
(b) depreciation and amortisation on fixed and other assets
(including goodwill) of the Group on a consolidated basis
during that period;
that would be disclosed by consolidated financial statements of the
Group if they were prepared in accordance with GAAP as at the last day
of that period.
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ELECTION DATE has the meaning set out in the Conditions;
EVENT OF DEFAULT means, in relation to a Senior Creditor Agreement:
(a) if that term is defined in the Senior Creditor Agreement, the
meaning given to that term;
(b) if there is no such definition in that Senior Creditor
Agreement, a default, event or circumstance which occurs under
that Senior Creditor Agreement which results in the
indebtedness of a Group Member to that Senior Creditor being
accelerated in accordance with its terms;
EXISTING JOINT VENTURE means a joint venture described in Schedule 4 to
this Deed;
EXISTING SENIOR LOAN AGREEMENTS means:
(a) the senior funding agreement dated 2 August 2001 made between
BPC, the entities listed in schedule 1 to that agreement,
Credit Suisse First Boston, Melbourne Branch, The
Toronto-Dominion Bank and the financial institutions listed in
schedule 2 to that agreement, as amended;
(b) the term loan facility agreement dated 2 August 2001 made
between BPC, the entities listed in schedule 1 to that
agreement, Credit Suisse First Boston, Melbourne Branch and
the financial institutions listed in schedule 2 to that
agreement; and
(c) the revolving loan facility agreement dated 2 August 2001 made
between BPC, the entities listed in schedule 1 to that
agreement, Credit Suisse First Boston, Melbourne Branch and
the financial institutions listed in schedule 2 to that
agreement;
EXTRAORDINARY RESOLUTION means a resolution passed at a meeting of the
Noteholders duly convened and held by a majority consisting of not less
than three-quarters of the votes cast on that resolution or, if a poll
is required, by not less than three-quarters of the votes cast on the
poll;
FACILITY AGENT means Credit Suisse First Boston, Melbourne Branch;
FURTHER CAPITAL NOTES means capital notes evidencing indebtedness of
the Company constituted by a Supplemental Deed in accordance with
clause 2.2 or the amount of such capital notes for the time being
outstanding or, as the context may require, a specific number of such
capital notes;
GAAP means:
(a) in relation to the Company, generally accepted accounting
practice as such term is defined in section 3 of the Financial
Reporting Act 1993; and
(b) in relation to BPC or the Group means, generally accepted
accounting principles in Australia consistently applied;
GROUP means BPC, the Subsidiaries and the Associates of BPC from time
to time;
GROUP MEMBER means BPC and any Subsidiary of BPC from time to time;
GUARANTOR means each of BPC and each wholly owned Subsidiary of BPC
incorporated in Australia, New Zealand or the United States which has
gross revenues from non-Group Members of greater than A$10,000,000 (or
equivalent) in a financial year as disclosed in its most recent annual
accounts and includes any new guarantor which accedes to any Deed of
Guarantee in accordance with the terms of the relevant Deed of
Guarantee (in each case to
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the extent not subsequently released in accordance with the terms of
the relevant Deed of Guarantee);
HOLDING CERTIFICATE means a holding certificate issued by the Company
in, or substantially in, the form set out in Schedule 1 setting out the
information required under Rules 11.2.1 and 11.2.5 of the Listing Rules
and having a summary of the Conditions endorsed on, or attached to,
that holding certificate and any holding certificate, acknowledgement,
receipt or other written evidence issued in replacement of, or
substitution for, any such holding certificate;
INSOLVENCY EVENT means, in respect of a person:
(a) an order being made, or the person passing a resolution, for
its winding up, dissolution or deregistration;
(b) an application being made to a court for an order for
protection from creditors or for its reorganisation, winding
up, dissolution or deregistration, unless the application is
withdrawn or dismissed within 5 Business Days;
(c) an administrator, statutory manager, liquidator or analogous
person being appointed to the person;
(d) that person enters into a scheme of arrangement, composition
with, or assignment for the benefit of, its creditors (or any
class of them) or proposes a moratorium in relation to its
creditors (or any class of them);
(e) (i) the person resolving to appoint a controller or
analogous person to the person or any of the person's
property;
(ii) an application being made to a court for an order to
appoint a controller, provisional liquidator, trustee
for creditors or in bankruptcy or analogous person to
the person or any of the person's property, unless
the application is withdrawn or dismissed within 5
Business Days; or
(iii) an appointment of the kind referred to in
subparagraph (ii) being made (whether or not
following a resolution or application);
(f) the holder of a security interest taking possession of any of
the person's property;
(g) the person being taken under section 458F(1) of the
Corporations Act 2001 or section 287 of the Companies Act 1993
(as applicable) to have failed to comply with a statutory
demand;
(h) the person:
(i) suspending payment of its debts, ceasing (or
threatening to cease) to carry on all or a material
part of its business, stating that it is unable to
pay its debts as they fall due or being or becoming
otherwise insolvent; or
(ii) being taken by applicable law to be (or if a court
would be entitled or required to presume that the
person is) unable to pay its debts as they fall due
or otherwise insolvent;
(i) the process of any court or authority being invoked against
the person or any of its property to enforce any judgment or
order for the payment of money or the recovery of any
property;
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(j) the person taking any step that could result in the person
becoming an insolvent under administration (as defined in
section 9 of the Corporations Act 2001);
(k) the person taking any step toward entering into a compromise
or arrangement with, or assignment for the benefit of, any of
its members or creditors; or
(l) any analogous event in any relevant jurisdiction;
INTEREST DATE has the meaning set out in the Conditions;
INTEREST RATE has the meaning set out in the Conditions;
ISSUE PRICE means, in relation to a Capital Note and from time to time,
the price determined by the Company for the issue of that Capital Note
which may be set at a premium or discount to the Principal Amount of
the Capital Note and may differ in respect of different Capital Notes;
LIQUIDATION means, in relation to the Company, BPC or any of its
Subsidiaries, either:
(a) the process of liquidation provided for in Part XVI of the
Companies Act 1993; or
(b) any analogous procedure following which the Company, BPC or
any of its Subsidiaries, as the case may be, will cease to
validly exist, or be duly incorporated, except for the
purposes of, and followed by, a reconstruction or an
amalgamation (not including or arising out of insolvency) of
the Company, BPC or any of its Subsidiaries provided that,
upon such reconstruction or amalgamation, the successor to the
Company, BPC or any of its Subsidiaries assumes the
obligations of the Company, BPC or any of its Subsidiaries
under this Deed and the terms of the Capital Notes, and that
the form of the restructuring or amalgamation has been
approved by Extraordinary Resolution; or
(c) its becoming subject to statutory management under the
Corporations (Investigation and Management) Act 1989;
LIQUIDATION AMOUNT has the meaning set out in the Conditions;
LIQUIDATOR means, in relation to the Company, any official in whom
management of the Company may become vested for the purposes of
liquidating its assets and repaying its debts and administering to the
eventual cessation of its business and shall include a statutory
manager;
LISTING RULES means:
(a) in relation to the Company, the listing rules of the New
Zealand Stock Exchange in force from time to time; and
(b) in relation to BPC, the listing rules of the Australian Stock
Exchange in force from time to time;
LTM EBITDA means, for a period, the aggregate EBITDA for that period
plus Cost Savings for that period;
NET INTEREST EXPENSE means for the Group for a period, Total Interest
Expense for the Group for that period less interest income of the Group
over that period, calculated on a consolidated basis in accordance with
GAAP;
NET TOTAL DEBT means, on any day, the Total Debt on that day less the
sum of the amount of cash held on that day by:
6
(a) BPC; or
(b) any other Group Member, to the extent that there is no legal,
contractual or other restriction on the ability of BPC to
readily procure that the cash is transferred to BPC or a
Guarantor;
NEW CONDITIONS has the meaning set out in the Conditions;
NEW ZEALAND STOCK EXCHANGE means the New Zealand Stock Exchange or any
alternative or substitute market for Ordinary Shares or other
arrangement in New Zealand on or through which Ordinary Shares may be
freely traded and which is generally regarded as the principal market
or arrangement for the trading of Ordinary Shares in New Zealand;
NOTEHOLDER means, at any time, in relation to a Capital Note, the
person named in the Register as the holder of the Capital Note;
ORDINARY SHARES means fully paid ordinary shares in BPC of the class on
issue at the date of this Deed or the shares which result if such
ordinary shares in BPC are at any time subdivided, consolidated or
reclassified after the date of this Deed;
POTENTIAL EVENT OF DEFAULT means, in relation to a Senior Creditor
Agreement:
(a) if that term is defined in the Senior Creditor Agreement, the
meaning given to that term;
(b) if there is no such definition in that Senior Creditor
Agreement, an event or circumstance which with the passage of
time, or the giving of notice or both would become an Event of
Default;
PRINCIPAL AMOUNT means, in relation to a Capital Note, the principal
amount of such Capital Note as recorded in the Register;
PROXY CLOSING TIME means 48 hours before the time appointed for
commencement of the relevant meeting of Noteholders or the taking of a
poll of Noteholders;
QUARTER DATE means 31 March, 30 June, 30 September and 31 December in
each year;
QUARTER PERIOD means a period from a Quarter Date and ending on the
next Quarter Date;
REGISTER means the register of Capital Notes to be established and
maintained in accordance with this Deed;
REGISTRAR means the person appointed by the Company to maintain the
Register;
RESTRUCTURING COSTS means, in respect of any period, costs and expenses
incurred by the Group during that period in relation to restructuring
(including, for the avoidance of doubt, all costs and expenses relating
to redundancy, closure and make good costs, asset relocation costs not
capable of capitalisation, consultant fees and asset write downs)
provided such costs have been verified by an Approved Chartered
Accountant and a copy of that review has been delivered to the Trustee;
SENIOR CREDITOR AGREEMENT means any agreement or document governing the
terms of any indebtedness of a Group Member to a Senior Creditor;
SENIOR CREDITORS has the meaning set out in the Conditions;
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SENIOR FACILITY AGREEMENTS means each of the financing arrangements
entered into by BPC and various subsidiaries of BPC in February and
March 2003 in connection with the funding of the acquisition of Goodman
Fielder Limited;
SUBSIDIARY means in relation to an entity, another entity which is:
(a) a subsidiary of the first within the meaning of Part 1.2
Division 6 of the Corporations Act (Cwlth) or;
(b) a subsidiary of the first within the meaning of section 5 of
the Companies Act 1993; or
(c) a subsidiary of or otherwise controlled by the first within
the meaning of any approved accounting standard;
SUPPLEMENTAL DEED means a deed supplemental to this Deed under which
any Further Capital Notes are constituted;
TOTAL DEBT means, on any date, the gross amount of all financing
liabilities of the Group on that date (including for the avoidance of
doubt, the liabilities in relation to the Capital Notes and any other
financing liabilities that rank pari passu with or ahead of the Capital
Notes), calculated on a consolidated basis in accordance with GAAP,
including:
(a) the redemption amount of all debt instruments;
(b) the principal amount of all finance leases and hire purchase
agreements;
(c) the redemption amount of all redeemable shares issued by a
Group Member; and
(d) all other liabilities that are required by GAAP to be treated
as financing liabilities;
TOTAL INTEREST EXPENSE means for the Group for a period, the gross
amount of all interest and financing costs incurred by the Group over
that period, calculated on a consolidated basis in accordance with
GAAP, after taking into account all realised losses and profits on
foreign currency borrowings and financing transactions (other than
amounts transferred to foreign currency translation reserves),
including:
(a) the amount of all discounts and similar allowances on the
issue or disposal of debt instruments;
(b) all finance charges under finance leases and hire purchase
agreements;
(c) the amount of all dividends paid or payable on redeemable
shares issued by any Group Member; and
(d) all other expenses and amounts that are required by GAAP to be
treated as an interest or financing cost other than
amortisation of loan establishment costs,
but excluding:
(e) interest and financing costs on money borrowed or raised to
acquire, develop or improve fixed assets, to the extent that
they have been capitalised in the accounts of the Group; and
(f) interest and financing costs on the redeemed USD100,000,000
aggregate amount of 5 1/2 Guaranteed Subordinated Convertible
Bonds issued by Burns Philp Treasury (Europe) BV and the
redeemed USD100,000,000 aggregate amount of Conversion Bonds
issued by BPC;
8
(g) the make whole premium on existing financial accommodation of
Goodman Fielder Limited;
(h) any realised costs of closing out a Treasury Transaction that
are incurred in connection with the refinancing of the
Existing Senior Loan Agreements or any acquisition of a
Subsidiary or business after 4 March 2003;
(i) any dividends paid during the period on the converting
preference shares issued by BPC prior to the date of this Deed
(up to conversion); and
(j) any non-cash items included in interest in the most recent
statement of the financial performance of the Group;
TRANCHE means either the Five Year Notes, the Eight Year Notes or both
of them as the case may be;
TREASURY TRANSACTION means any foreign exchange agreement, currency or
interest purchase agreement, interest rate swap, cap or collar
agreement, currency swap agreement, currency and interest rate future
or option contract and other similar agreement (whether entered into
before, on or after the date of this agreement); and
UNPAID INTEREST has the meaning set out in the Conditions.
1.2 INTERPRETATION
Except to the extent that the context otherwise requires, any reference
in this Deed (including in the Conditions) to:
BORROWED MONEY means any indebtedness for or in respect of money
borrowed or raised by whatever means (including acceptances, deposits,
finance leases, debt factoring with recourse and the issue of
redeemable preference shares) or for the deferred purchase price of
assets and services (other than assets or services supplied in the
ordinary course of business on normal trade terms);
the CAPITAL NOTES shall be interpreted as a reference to all Capital
Notes or, as the context may require, to each Tranche of Capital Notes;
a CLAUSE or SCHEDULE is a reference to a clause of, or the schedule to,
this Deed;
a COMPANY means any company or body corporate wherever incorporated or
domiciled and, where the context so permits, includes an individual;
INDEBTEDNESS includes any obligation (whether present or future, actual
or contingent, secured or unsecured, as principal or surety or
otherwise) for the payment or repayment of money;
LAW means all laws, statutes, regulations and ordinances of New Zealand
and all judgments, decrees, injunctions, writs and orders of any New
Zealand court;
FINANCIAL STATEMENTS includes statements of financial position,
financial performance, movements in equity and cashflows, and the notes
relating to any such statements, and CONSOLIDATED FINANCIAL STATEMENTS
has a corresponding meaning;
MONTH means calendar month;
a NOTEHOLDER or the NOTEHOLDERS shall be interpreted as a reference to
all Noteholders or, as the context may require, the holders of a
particular Tranche of Capital Notes;
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OUTSTANDING means, in relation to Capital Notes, all the Capital Notes
as from time to time have been issued in accordance with this Deed
other than:
(a) those which have been repaid or redeemed in accordance with
this Deed and the relevant Conditions; and
(b) those which have been purchased and surrendered for
cancellation and in respect of which notice of cancellation
has been given to the Registrar;
PERSON includes an individual, firm, company, corporation or
unincorporated body of persons, organisation or trust, and any state or
government agency, in each case whether or not having a separate legal
personality;
TAX includes any present or future tax, levy, impost, duty, rate,
charge, fee, deduction or withholding of any nature and whatever
called, imposed or levied by any government or governmental agency; and
WRITTEN and IN WRITING includes all means of reproducing words in a
tangible and permanently visible form.
1.3 MISCELLANEOUS
(a) DEFINITIONS IN COMPANIES ACT 1993 AND SECURITIES ACT 1978
Except where otherwise expressly provided in this Deed, words
defined in the Companies Act 1993 or the Securities Act 1978
have the same meanings in this Deed.
(b) HEADINGS
The introduction to, and each heading in this Deed, is
inserted for convenience only and is to be ignored in
construing this Deed.
(c) PLURAL, SINGULAR AND GENDER REFERENCES
Unless the context otherwise requires, words denoting the
singular number only are to include the plural and vice versa
and words denoting any gender are to include all genders.
(d) REFERENCES TO LEGISLATION
References to any legislation or to any provision of any
legislation are deemed to be references to that legislation or
provision as from time to time amended, re-enacted or
substituted.
(e) MODIFIED, NOVATED, SUPPLEMENTED, VARIED AND REPLACED DOCUMENT
References to any document (however described) will include
references to such document as modified, novated,
supplemented, varied or replaced from time to time.
(f) SCHEDULES
Each schedule has the same form and effect as if set out in
the body of this Deed.
(g) REFERENCES TO TIME
Anything which may be done at any time may also be done from
time to time.
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1.4 DEFINITIONS IN CONDITIONS
Words and expressions defined in the Conditions and not otherwise
defined in this Deed have the same meanings where used in this Deed
unless the context otherwise requires.
1.5 NON-BUSINESS DAYS
Anything which is required by this Deed or the Conditions to be done
on, or as of, a day which is not a Business Day is to be done on, or as
of, the next Business Day.
1.6 CHANGES IN GAAP
The parties acknowledge that changes in GAAP after the date of this
Deed may make the operation of clauses 5.3, 5.5 and 5.6, the defined
terms in clause 1.1, or another clause in this Deed that refers to
GAAP, inappropriate. If the Company or the Trustee considers that this
has occurred and notifies the other of them to that effect (the
NOTIFICATION DATE), the Company and the Trustee agree to make
appropriate amendments to the affected clause or definition. If the
Company and the Trustee fail to agree on the appropriate amendments to
the affected clause or definition within 20 Business Days of the
Notification Date, then the Company's compliance with such affected
clause or definition shall be determined on the basis of GAAP in effect
immediately before the relevant change in GAAP became effective, until
such notification is withdrawn or such clause or definition is amended
in a manner satisfactory to the Company and the Trustee.
2. ISSUE AND CONSTITUTION OF CAPITAL NOTES
2.1 CONSTITUTION OF CAPITAL NOTES
The Company may, from time to time, constitute and issue Capital Notes
in accordance with this Deed.
2.2 FURTHER ISSUE
With the consent of the Trustee, the Company may, from time to time,
without the consent of the Noteholders create and issue Further Capital
Notes, subject to this Deed, either:
(a) RANKING PARI PASSU WITH CAPITAL NOTES
on the same terms as the initial offer of Capital Notes in all
respects (or in all respects except for the Interest Rate,
Interest Dates and the Election Date) so as to form a single
issue with the Capital Notes; or
(b) ON OTHER TERMS
upon such other terms as to interest rates or payment dates,
redemption, ranking (whether in Liquidation or otherwise),
premium, discount and otherwise as the Company may determine
at the time of issue.
Any Further Capital Notes are to be constituted by a Supplemental
Deed executed by the Company, BPC and the Trustee in a form agreed by
them. The consent of the Trustee shall not be required in relation to
any issue of capital notes which are not subject to this Deed.
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2.3 CONDITIONS OF ISSUE
Each Capital Note is to be issued subject to the Conditions in
accordance with this Deed. The conditions applicable to Further Capital
Notes are to be in the form set out or referred to in the relevant
Supplemental Deed.
2.4 DEED AND CONDITIONS BINDING
This Deed and the Conditions are binding on the Company, BPC, the
Trustee, the Noteholders and all persons claiming through or under them
respectively and the Capital Notes are to be held subject to this Deed
and the Conditions and, in relation to the initial issue of Capital
Notes, each Deed of Guarantee.
2.5 PAYMENT OF ISSUE PRICE
(a) PAYMENT ON APPLICATION
Each applicant for Capital Notes must pay to the Company, upon
application, the Issue Price for the Capital Notes set out in
his or her application for Capital Notes.
(b) ISSUE OF CAPITAL NOTES
Following receipt of the Issue Price for Capital Notes,
subject to acceptance of that application by the Company in
full or in part, the Company must issue that Noteholder with
the appropriate Principal Amount of Capital Notes for which
the application is accepted as soon as practicable after the
date on which it received payment of the Issue Price.
(c) CLEARED FUNDS
The Company is not obliged to pay Accrued Interest to a
Noteholder (or the Trustee on its behalf) under this Deed
unless and until the Noteholder has paid in full and in
cleared funds the Issue Price for the Capital Notes issued to
him or her. The Company may also (but need not) forfeit any
Capital Notes issued to a Noteholder if that Noteholder does
not pay the Issue Price in full and cleared funds for the
relevant Capital Notes. Any Capital Notes forfeited under this
clause may be cancelled or transferred by the Company to any
person or persons.
2.6 FORM OF CAPITAL NOTES AND HOLDING CERTIFICATES
Capital Notes will be issued in uncertificated book entry form in a
minimum denomination of $5000 for each Tranche (and thereafter in
multiples of $1000 for each Tranche) by entry of the details specified
in clause 4.2 on the Register. The Company may issue to each initial
Noteholder, and to each subsequent Noteholder within five Business Days
after he or she is transferred a Capital Note in accordance with this
Deed, a Holding Certificate in respect of his or her Capital Notes.
Each Holding Certificate must:
(a) be and remain subject to the Conditions applicable from time
to time;
(b) have endorsed on it a summary of the relevant Conditions as at
the date of issue; and
(c) be numbered sequentially and be transferable on registration
of the relevant details on the Register as set out in the
Conditions.
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Subject to the Conditions, the Company may, upon such terms (if any)
that it determines, issue to a Noteholder:
(d) SUBSTITUTE HOLDING CERTIFICATE
a new Holding Certificate in substitution for one issued in an
incorrect form, or for an incorrect principal amount of
Capital Notes, or otherwise containing incorrect terms or
Conditions;
(e) MULTIPLE HOLDING CERTIFICATES
several new Holding Certificates in substitution for a single
Holding Certificate and vice versa;
(f) SUBSTITUTION IN PART a new Holding Certificate in part
substitution for a Holding Certificate where some (but not
all) of the Capital Notes represented by the latter Holding
Certificate are cancelled, redeemed, redeemed by the issue of
Ordinary Shares or transferred, or the subject of a
transmission, in accordance with this Deed and the Conditions;
and
(g) NEW CONDITIONS
a new Holding Certificate where the Noteholder of a Capital
Note has, or is deemed to have, accepted the New Conditions
offered by the Company in relation to that Capital Note as
soon as practicable following the relevant Election Date.
2.7 COVENANT TO OBSERVE THE DEED AND CONDITIONS
(a) INDEBTEDNESS
The Company acknowledges its indebtedness to each Noteholder,
and to the Trustee on behalf of the Noteholders, in relation
to the payment or repayment of the Principal Amount of, and
interest and any other amount payable under, each Capital Note
upon and subject to this Deed. The Company covenants to pay
all amounts in relation to the Capital Notes to, or as
directed by, the Trustee.
(b) COMPLIANCE
Each of the Company and BPC covenants with the Trustee that it
will comply with, perform and observe all the provisions of
this Deed and the Conditions.
(c) PAYMENT IN SATISFACTION OF OBLIGATIONS
Each payment in respect of the Capital Notes duly made to the
Noteholders or the Trustee, and every issue of Ordinary Shares
in redemption of the Capital Notes duly made in accordance
with the Conditions, will be in satisfaction, to the extent of
the amount paid, of the relevant obligation of the Company to
the Noteholders and the Trustee under this Deed.
(d) BENEFIT OF COVENANTS
The Trustee is to take and hold the benefit of the covenants
given to it by the Company and BPC under this Deed, and those
of the Guarantors under the Deeds of Guarantee, in respect of
the Capital Notes (other than those covenants intended to be
for the benefit of the Trustee for its own account) for the
Noteholders generally.
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2.8 NOTEHOLDER ABSOLUTE OWNER
Subject to clause 4.5, each of the Company, BPC and the Trustee is,
notwithstanding any notice to the contrary, entitled to treat the
Noteholder of any Capital Note as its absolute and beneficial owner and
is not required to recognise any trust or equity or security interest
affecting such ownership (except as required by law or order of any
competent court).
2.9 CANCELLATION ON REDEMPTION (BY WAY OF PAYMENT OF CASH OR ISSUE OF
ORDINARY SHARES) OR PURCHASE
Each Capital Note which is redeemed by the issue of an Ordinary Share
or for cash in accordance with this Deed and the Conditions is and will
be deemed to be cancelled, and neither the Company, BPC nor the Trustee
will have any further liabilities or obligations in respect of that
Capital Note or the relevant Noteholder. Each of BPC and its
Subsidiaries may, subject to and in accordance with the Listing Rules
and BPC's or the relevant Subsidiary's constitutional documents, at any
time purchase a Capital Note for its own account. Each Capital Note so
purchased by BPC or a wholly owned Subsidiary of BPC will be cancelled
and neither the Company, BPC nor the Trustee will have any further
liabilities or obligations in respect of that Capital Note or the
relevant Noteholder.
2.10 VALIDITY OF ISSUED CAPITAL NOTES
Neither the Trustee nor any person named as a Noteholder in any Holding
Certificate in relation to any Capital Note need be concerned or
obliged to enquire whether any Capital Note purporting to be evidenced
by the Register or a Holding Certificate has been issued in accordance
with this Deed, the Listing Rules or the Company's constitution. Each
Capital Note issued for valuable consideration will be deemed to be
validly issued and constituted by this Deed notwithstanding that the
issue of such Capital Note was in breach of any provision of this Deed,
but without prejudice to the Trustee's rights under or in accordance
with this Deed against the Company in respect of any such breach.
2.11 PAYMENT OF BROKERAGE OR COMMISSION - ISSUE AT DISCOUNT OR PREMIUM
The Company or BPC may pay a commission, procuration, application or
issue fee or brokerage to any person or company in respect of
subscribing for, underwriting the issue of, or obtaining subscriptions
for the Capital Notes, and the Company may issue any Capital Note or
Further Capital Note at a discount or premium to its Principal Amount.
2.12 UNCLAIMED PAYMENTS
Any payment made by the Company, BPC or the Trustee to any Noteholder
at its address last entered in the Register which is returned unclaimed
and remains unclaimed by the person entitled to it during the 12 month
period thereafter, must (unless the Company has in the interim received
notice of a change of address to be entered in the Register and made
payment to the Noteholder at this changed address) be held by the
Company in a separate bank account (such bank account to be held with a
bank, and on terms, as the Trustee shall reasonably require) for the
Noteholder concerned without any liability to invest or pay interest on
that amount. Unless otherwise required by law, any money not so claimed
within a period of six years from the original date of payment may be
retained by the Company or BPC together with accrued interest (if any),
but less any deductions required by law and the Company or BPC, as the
case may be, and the Trustee will have no further liability in respect
of the amount concerned.
2.13 REINSTATEMENT
If any payment made to the Trustee or to any Noteholder by or on behalf
of the Company or BPC is avoided by law, such payment will be deemed
not to have discharged or affected the liability of the Company or BPC,
as the case may be, in respect of which that payment was
14
made. In this circumstance, the Trustee, the Noteholder and the Company
or BPC, as the case may be, will each be restored to the position in
which it would have been, and will be entitled to exercise all the
rights which each would have had, if such payment had not been made.
2.14 FURTHER ISSUES
The Company may at any time prior to 1 January 2025, and by one or more
issues, issue up to 2,000,000,000 of any class of ordinary, preferred
or deferred shares without requiring the consent of the Trustee or the
Noteholders.
3. SUBORDINATION AND STATUS OF CAPITAL NOTES
3.1 STATUS AND SUBORDINATION
Each Capital Note is the direct, unsecured, subordinated obligation of
the Company and ranks equally without any preference with all other
Capital Notes. In any distribution of assets by the Company in
Liquidation (including by way of exercise of rights of set-off) or in
any bankruptcy, reorganisation, insolvency, receivership or similar
proceeding for the benefit of creditors, the rights of the Trustee and
the Noteholders to the Principal Amounts of, and interest on, the
Capital Notes, are to be subordinated to all moneys payable by the
Company to Senior Creditors, so that in any such distribution or
proceeding no payment will be made on account of the Principal Amount
of, or interest on, the Capital Notes to the Trustee or the Noteholders
until the Senior Creditors have been paid in full. The Trustee agrees,
and, by purchasing a Capital Note, each Noteholder will be deemed to
agree that:
(a) AGREEMENT TO ACCEPT LOWER PRIORITY
in accordance with section 313(3) of the Companies Act 1993,
he or she is accepting a lower priority in respect of the debt
represented by such Capital Note than that which it would
otherwise have under section 313; and
(b) DEED TO TAKE EFFECT IN ACCORDANCE WITH ITS TERMS
nothing in section 313 of the Companies Act 1993 will prevent
this Deed from having effect in accordance with its terms.
3.2 SUBORDINATED CONTINGENT DEBT
In Liquidation, or in any bankruptcy, reorganisation, insolvency,
receivership or similar proceeding for the benefit of creditors,
neither the Trustee nor any Noteholder is entitled to prove for, or
vote in respect of, the Principal Amount of nor interest on any Capital
Note except as a debt which is subject to, and contingent upon, prior
payment of the Senior Creditors in full.
3.3 OTHER INDEBTEDNESS PERMITTED
Subject to clause 5, nothing in this Deed, prior to the Commencement of
Liquidation of the Company or BPC, in any way restricts the right of
the Company or BPC to incur indebtedness or issue obligations ranking
in priority to, or pari passu with, or subordinate to, the indebtedness
and obligations of the Company or BPC in respect of any Capital Notes.
If any modification to this Deed or the Conditions, or any other
documentation, consent or acknowledgement is necessary to give effect
to such ranking, the Trustee must (at the Company's cost) execute any
document reasonably required by the Company to give effect to this
clause (which must be in a form and substance reasonably acceptable to
the Trustee), and any such modification, consent or acknowledgement
will be on behalf of, and bind, the Noteholders.
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3.4 NO SUBORDINATION OF TRUSTEE'S ENTITLEMENT
Nothing in this Deed or the Conditions subordinates or otherwise
affects or prejudices, or defers in priority of payment, the payment of
the costs, charges, expenses, liabilities, indemnified amounts,
remuneration or other moneys payable to the Trustee (or any officer,
employee or agent of the Trustee in its personal capacity (other than
as a holder of Capital Notes)) as provided for, or referred to, in this
Deed, all of which will be payable to the Trustee at the time and in
the manner provided by this Deed.
3.5 TRUST
Any payment or distribution, whether voluntarily or in any other
circumstances, received by a Noteholder from or on account of the
Company (including by way of credit, set off or otherwise but excluding
any amount received under a Deed of Guarantee) or from the Liquidator
or any receiver, manager or statutory manager of the Company in breach
of this clause 3 is to be held by the relevant Noteholder in trust for,
and to the order of, the Senior Creditors according to their respective
rights and interests. The trust hereby created will, subject to clause
3.11, be for a term expiring on the earlier of the date on which all
Senior Creditors have been paid in full or the date on which the
Liquidator determines that the Company has no further assets with which
to satisfy the claims of the creditors. Insofar as the trusts may be a
security interest for the purposes of the Personal Property Securities
Act 1999, the Trustee shall have no obligation whatsoever to register a
financing statement in respect of that security interest under that Act
or otherwise comply with that Act.
3.6 NO SET-OFF
No Noteholder may set off against any amounts due in respect of any
Capital Note held by that Noteholder, any amount held by that
Noteholder to the credit of the Company, whether in an account, in cash
or otherwise, nor any advances to, or debts of, the Company, nor any
other amount owing by the Noteholder to the Company on any account
whatsoever, nor may any Noteholder effect any reduction of the amount
due to that Noteholder in relation to a Capital Note by merger of
accounts or lien or the exercise of any other right, in all such cases,
the effect of which set-off, merger, lien or exercise of such right is
or may be to reduce the amount due in relation to that Capital Note in
breach of this clause 3.
3.7 CONTRACTS (PRIVITY) ACT 1982
(a) BENEFIT OF SENIOR CREDITORS
For the purposes of the Contracts (Privity) Act 1982, but
subject to (b) below, this clause 3 is intended to confer a
benefit upon the Senior Creditors and to be enforceable by the
Senior Creditors directly.
(b) AMENDMENTS BINDING ON SENIOR CREDITORS
For the purposes of section 6 of the Contracts (Privity) Act
1982, it is agreed that any amendments made to this Deed in
accordance with clause 7.5 of this Deed shall be binding upon
the Senior Creditors whether or not they have consented to
such amendment.
3.8 ENFORCEMENT BY TRUSTEE
(a) ENFORCEMENT BY TRUSTEE ONLY
Subject to this clause 3, only the Trustee may enforce the
provisions of the Capital Notes, this Deed or any Deed of
Guarantee, and no Noteholder is entitled to proceed directly
against the Company, BPC, or any Guarantor as the case may be,
unless the
16
Company or BPC is in breach of this Deed and the Trustee fails
to act (to the extent that it is able under this Deed) with
respect to that breach in a reasonable time.
(b) CLAIMS BY NOTEHOLDERS
No Noteholder may claim or prove in the Liquidation of the
Company or any Guarantor for any amount owing to him or her
under any Capital Note, this Deed or any Deed of Guarantee to
the extent that the Trustee has claimed or proved for, or has
determined to claim or prove for, such amount in such
Liquidation on behalf of such Noteholder, and any claim or
proof made contrary to this clause must be withdrawn by such
Noteholder.
(c) ENFORCEMENT BY NOTEHOLDERS
No Noteholder may proceed against the Company, BPC, any
Guarantor, or the Trustee for the enforcement or performance
of any provision of this Deed, the Conditions or any Deed of
Guarantee that is solely for the benefit of the Trustee.
3.9 DISTRIBUTION ON LIQUIDATION
Other than any amounts received by the Trustee under a Deed of
Guarantee which will be applied in accordance with the terms of that
Deed of Guarantee, any amount received by the Trustee under or in
respect of this Deed or the Capital Notes in Liquidation or upon the
Commencement of Liquidation and not paid to the Liquidator, or received
by the Trustee in any bankruptcy, reorganisation, insolvency,
receivership, or similar proceeding for the benefit of creditors, must
be applied, and pending such application must be held by the Trustee
upon trust to be applied, subject to any direction made by any court
and except as required by law:
(a) TRUSTEE'S EXPENSES
first, in payment or retention of all costs, charges, expenses
and liabilities incurred and payments made by or on behalf of
the Trustee (or any officer, employee or agent of the Trustee)
and of all remuneration, indemnified amounts and other moneys
payable to the Trustee (or any officer, employee or agent of
the Trustee) as provided or referred to in this Deed or the
Deeds of Guarantee;
(b) SENIOR CREDITOR'S INDEBTEDNESS
secondly, in payment to the Company to be held by it upon
trust, and immediately deposited in a separate account (the
name of which indicates the terms of trust on which the
account is held), to apply the same in or towards the
discharge of all moneys payable by the Company to Senior
Creditors according to their respective rights and interests;
(c) NOTEHOLDER'S INDEBTEDNESS
thirdly, subject to the indebtedness of the Company to Senior
Creditors having been paid or satisfied or provided for in
full, in or towards payment to each Noteholder, pari passu in
proportion to the Principal Amounts of the Capital Notes held
by him or her, of the aggregate Liquidation Amount and any
interest payable in accordance with clause 3.15; and
(d) SURPLUS TO COMPANY
fourthly, in payment of the surplus (if any) of such moneys to
the Company, or to such other person as may otherwise be
lawfully entitled to those moneys.
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3.10 RELIANCE ON LIQUIDATOR
Following the Commencement of Liquidation, the Trustee will be entitled
and is authorised to call for and to accept as conclusive evidence a
certificate from the Liquidator for the time being regarding the amount
of indebtedness to Senior Creditors which has not been satisfied or
otherwise provided for and the Trustee shall be entitled to rely upon a
statement in writing from the Liquidator to the effect that all such
indebtedness has been satisfied or discharged.
3.11 TERMINATION OF TRUSTS
The trusts contained in this Deed in favour of the Trustee and the
Senior Creditors terminate on the date which is 80 years after the date
of execution of this Deed, except to the extent that any interests
under such trusts have vested at that date and without affecting the
contractual rights and obligations of the Company and the Trustee under
this Deed. Any amounts which would, but for this clause, have been held
on trust for the Senior Creditors will be held on trust for the Company
absolutely.
3.12 PERMITTED PAYMENTS AND RECEIPTS
Subject to clause 3.16, until the Commencement of Liquidation, or the
commencement of any bankruptcy, reorganisation, insolvency,
receivership or similar proceeding for the benefit of creditors, the
Company is entitled to pay, and a Noteholder or the Trustee or any
other person on behalf of a Noteholder is entitled to receive payment
from or on behalf of the Company of, any amount payable in respect of
the Principal Amount of, or interest on, the Capital Notes or other
amount payable in respect of the Capital Notes and the Trustee is
entitled to pay any amounts to or for the benefit of the Noteholders or
any other person on behalf of any Noteholders. The payment and receipt
in compliance with the foregoing of any such amount will not constitute
a breach of, or be subject to, clause 3.1 and such payment is to be
received free of any obligation on the recipient of that payment to
refund or return the same, or to hold the same in trust, in accordance
with this Deed.
3.13 PERMITTED PROCEEDINGS
Nothing in this Deed or the Deeds of Guarantee excludes, limits, defers
or otherwise affects:
(a) PROCEEDINGS SEEKING DIRECTIONS FROM COURT
the right of the Trustee to seek directions from a court in
accordance with the Securities Act 1978 or to take any other
proceedings seeking the directions of, or guidance by, any
court or other authority as to the performance of its
functions and duties hereunder or otherwise in relation to
this Deed; or
(b) PROCEEDINGS SEEKING DECLARATORY JUDGMENT
any proceedings taken by the Trustee or any Noteholder at any
time seeking a judgment or order declaratory of the rights or
obligations of any Noteholder or any party to this Deed; or
(c) OTHER PROCEEDINGS
the right of the Trustee or a Noteholder, in the circumstances
expressly permitted by this Deed and the Conditions, to take
any action permitted by this Deed.
3.14 COMMENCEMENT OF LIQUIDATION
Upon the Commencement of Liquidation of the Company, and subject to
this clause 3, the Capital Notes will cease to be capable of being
redeemed by the issue of Ordinary Shares
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and the Principal Amount of the Capital Notes, together with all
Accrued Interest and Unpaid Interest in respect of that amount, will
become repayable and each Capital Note will be due to be redeemed for
an amount equal to the Liquidation Amount of the Capital Note.
3.15 INTEREST PAYABLE FOLLOWING COMMENCEMENT OF LIQUIDATION
Upon the Commencement of Liquidation of the Company, interest on the
Capital Notes will cease to accrue. Nothing in this Deed limits the
application of section 311 of the Companies Act 1993, and the Trustee
and each Noteholder may, notwithstanding any provision in this Deed,
claim for interest payable thereunder.
3.16 PERMITTED PAYMENTS
The Company must not make any payment under this Deed if:
(a) an Insolvency Event in relation to any Group Member has
occurred, or if any such Insolvency Event would occur as a
result of the payment being made; or
(b) an Event of Default or Potential Event of Default under a
Senior Creditor Agreement has occurred or if such an Event of
Default or Potential Event of Default would occur as a result
of the payment being made.
4. THE REGISTER
4.1 ESTABLISH AND MAINTAIN REGISTER
The Company shall appoint a Registrar and cause the Registrar to
establish and maintain the Register in accordance with this Deed and
all relevant legal requirements.
4.2 DETAILS ON REGISTER
The Register must show:
(a) NAME AND ADDRESS
the name and address of each person registered as a
Noteholder;
(b) ALLOTMENT DATE
the allotment date of each Capital Note;
(c) OTHER DETAILS
the Tranche, Principal Amount, Interest Rate, Interest Dates
and Election Date applicable to each Capital Note;
(d) TRANSFERS
details of all transfers of the Capital Notes, including the
date of registration of each transfer;
(e) CANCELLATION
all cancellations of Capital Notes; and
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(f) OTHER INFORMATION
such other information as may be required by law or by the
Trustee.
4.3 INSPECTION OF REGISTER
Each of the Company, BPC and the Trustee may at any reasonable time
inspect the Register and take copies of, and extracts from, the
Register without payment of any fee. Each Noteholder may, at such times
determined by the Registrar, inspect the Register in relation to the
Notes held by that Noteholder and, upon payment of any reasonable fee
stipulated by the Registrar, take a copy of the relevant section of the
Register.
4.4 CHANGE IN DETAILS
Any change of name or address of any Noteholder or any change in any
other information required to be inserted in the Register in relation
to any Noteholder must immediately be notified to the Registrar in
writing by the Noteholder, or, if a joint holding, by all the joint
Noteholders and, following such notice, the Register must be altered
accordingly.
4.5 RECOGNITION OF TRANSMISSION OF CAPITAL NOTES
Each executor or administrator of a deceased Noteholder (not being one
of several joint Noteholders) and, in the case of the death of one or
more of several joint Noteholders, each survivor of a joint Noteholder,
is the only person recognised by the Company as having any title to the
relevant Capital Note.
4.6 REGISTRATION OF TRANSMISSION OF CAPITAL NOTES
Each person becoming entitled to a Capital Note on the death or
bankruptcy of a Noteholder, upon producing evidence to the satisfaction
of the Company of his or her entitlement to that Capital Note may be
registered as the Noteholder. The Company may retain any amount payable
upon the Capital Note to which any person is so entitled until that
person is so registered or duly transfers the Capital Note.
4.7 JOINT NOTEHOLDERS
The joint Noteholders of a Capital Note are entitled to only one
Holding Certificate in relation to their joint holding. This Holding
Certificate is, except where the joint Noteholders otherwise direct, to
be issued to the joint Noteholder whose name appears first in the
Register in relation to that joint holding.
4.8 REGISTER CONCLUSIVE
Each of the Trustee, the Company and BPC is:
(a) RELY ON REGISTER
entitled to rely upon the entries in the Register as
constituting the sole and conclusive record of each Capital
Note and Holding Certificate (if any) and as to the person
entitled to the Capital Note, notwithstanding any discrepancy
between the Register and a Holding Certificate;
(b) NO ENQUIRIES
not obliged to make further enquiry as to the status in
relation to this Deed, or ownership, of any securities or
indebtedness of the Company, or of any claim, entitlement or
interest, not so entered in the Register;
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(c) CORRECT REGISTER
to have the power, in its absolute discretion, to authorise
the correction of the Register upon being satisfied that the
Register or a Holding Certificate is incorrect, and, in the
case of the Trustee, to be deemed to have accepted trusteeship
in respect of Capital Notes and on behalf of the Noteholders
of any such Capital Notes as shown by the Register or a
Holding Certificate so corrected as from the date of
correction;
(d) TRUSTEE NOT LIABLE
in the case of the Trustee, not liable to the Company, BPC or
any Noteholder or former Noteholder for relying on the
Register or for accepting in good faith as valid any detail
recorded on the Register subsequently found to be forged,
irregular or not authentic; and
(e) COMPANY AND BPC NOT LIABLE
in the case of the Company and BPC, not liable to the Trustee
or any Noteholder or former Noteholder for relying on the
Register or for accepting in good faith as valid any detail
recorded on the Register subsequently found to be forged,
irregular or not authentic.
4.9 CONFLICT BETWEEN REGISTER AND HOLDING CERTIFICATES
In the event of any conflict between the Holding Certificate for a
Capital Note and the particulars recorded in the Register in respect of
that Capital Note, the Register is to prevail.
5. WARRANTIES AND COVENANTS
5.1 REPRESENTATIONS AND WARRANTIES
Each of the Company and BPC represents and warrants to the Trustee on
the date of this Deed and on the date of issue of the Capital Notes
that:
(a) INCORPORATION
it is a company duly incorporated under the laws of its
jurisdiction of incorporation;
(b) POWER
it has power to enter into this Deed, issue the Capital Notes
(in the case of the Company) and perform its obligations under
this Deed and the Capital Notes;
(c) CONSENTS AND AUTHORISATION
it has all the necessary consents and has taken all necessary
corporate and other action to authorise the execution and
performance of this Deed and the Capital Notes;
(d) OBLIGATIONS LEGALLY BINDING
its obligations under this Deed and the Capital Notes are
legally binding and enforceable, subject to general equitable
principles and to bankruptcy, insolvency or similar laws
affecting creditors generally; and
21
(e) NO BREACH OF AGREEMENT, LAWS ETC.
the execution and performance of this Deed by it and the
performance by it of its obligations under the Capital Notes
will not constitute a breach under any law or regulation by
which it is bound, including, without limitation, its
constitutional documents and the applicable Listing Rules.
5.2 COMPANY COVENANTS
The Company covenants with the Trustee and each Noteholder that it
will:
(a) NOTIFY TRUSTEE OF NON-PAYMENT
promptly notify the Trustee if the Company intends not to, or
fails to, make a payment of interest on the Capital Notes when
due (and to the extent that the Company has determined that it
will not make a payment of interest at any time before the
relevant Interest Date, it will notify the Trustee promptly
after making that determination);
(b) GIVE TRUSTEE NOTICES
send a copy to the Trustee of each notice given by it to
Noteholders generally;
(c) ADVISE TRUSTEE
advise the Trustee as soon as reasonably practicable of each
decision by the Company to redeem (whether by payment of cash
or issue of Ordinary Shares) or compulsorily purchase a
Capital Note under Condition 4;
(d) QUOTATION OF CAPITAL NOTES AND PROVIDE INFORMATION
use reasonable endeavours to ensure that the Capital Notes
are, upon their issue, quoted on the New Zealand Stock
Exchange and that such quotation is maintained;
(e) ANNUAL REPORT
send to the Trustee a copy of each annual and semi-annual
report which it (or any person on its behalf) sends to
Noteholders in accordance with Rule 10.5 of the Listing Rules,
at the same time as those reports are distributed;
(f) CONDUCT BUSINESS
conduct its affairs in a proper and businesslike manner;
(g) INFORMATION
whenever so requested, give to the Trustee such information as
may reasonably be required for the purposes of the discharge
of the duties, trusts and powers vested in the Trustee under
this Deed or imposed upon it by law;
(h) COMPLIANCE WITH LEGISLATION ETC.
at all times comply with the Securities Act 1978, Securities
Regulations 1983, Companies Act 1993, Financial Reporting Act
1993, the Listing Rules and all applicable laws;
22
(i) OFFERING DOCUMENTS
not issue an investment statement or prospectus in respect of
the issue of Capital Notes (or Further Capital Notes which are
constituted pursuant to this Deed) without prior notice to the
Trustee, and not include any statement in any such prospectus
or investment statement, or any Advertisement (as defined in
the Securities Act 1978) for the Capital Notes, concerning the
Trustee, without the prior consent of the Trustee;
(j) NOTEHOLDER RIGHTS
in relation to the Capital Notes, comply with the provisions
of sections 116 and 117 of the Companies Act 1993 on the basis
that:
(i) references in those sections to "shares" are deemed
to be references to the Capital Notes, and references
to "holders of shares" and "shareholders" are deemed
to be modified accordingly;
(ii) the references to pre-emptive rights under section 45
of that Act are deemed to be deleted from those
sections;
(iii) the reference in section 117 to a "special
resolution" is deemed to be a reference to an
Extraordinary Resolution;
(iv) the references in section 117 to the "constitution"
are deemed to be references to this Deed; and
(v) the Company will not be required to comply with those
sections in relation to actions that affect the
rights attached to the Capital Notes if this Deed or
the Conditions (or, in relation to Further Capital
Notes, those Further Capital Notes were issued on
terms which) expressly permitted the action in
question to be taken without the prior approval of
Noteholders, and those terms, in each case, have been
disclosed clearly in the offering document (if any)
in accordance with which those Capital Notes were
offered,
provided that section 118 of the Companies Act 1993 will not,
by virtue of this clause, be deemed to apply to any Capital
Note. Further, the issue of Further Capital Notes which rank
behind, equally with, or in priority to, the Capital Notes,
whether as to voting rights, distributions or otherwise, or
the issue of further Ordinary Shares, is deemed not to be an
action affecting the rights attaching to the Capital Notes for
the purposes of this clause.
5.3 FINANCIAL COVENANT
BPC undertakes to ensure that, while any Capital Note remains
outstanding:
(a) it will not incur; and
(b) it will procure that none of its Subsidiaries will incur,
any indebtedness for borrowed money ranking pari passu with,
or in priority to, the obligations of the relevant entity
under the Capital Notes or a Deed of Guarantee, as the case
may be, if incurring that indebtedness would result in the
ratio of Net Total Debt to LTM EBITDA exceeding:
(c) during the period from the date of this Deed until 31 December
2004, 5.00:1; and
(d) at all times thereafter 4.75:1.
23
When calculating the ratio of Net Total Debt to LTM EBITDA under this
clause 5.3 on any test date:
(i) during the period from the date of this Deed until
the date falling 12 months after the date on which
Goodman Fielder Limited and its subsidiaries form
part of the Group for the purpose of preparing
consolidated financial statements, LTM EBITDA shall
be determined in relation to the Group by reference
to the 12 month period ending on the test date and on
a pro forma basis as if Goodman Fielder Limited and
its subsidiaries had formed part of the Group since
30 April 2002; and
(ii) at any time after the end of the period described in
(i) above, LTM EBITDA shall be determined in relation
to the Group by reference to the 12 month period
ending on the test date.
This clause is not intended to, and shall not in any way, restrict the
refinancing of any indebtedness for borrowed money existing at the date
of this Deed, drawings made by BPC or any Subsidiary under a revolving
facility in the ordinary course of business or any indebtedness
incurred between Group Members.
5.4 BPC COVENANTS
BPC covenants with the Trustee:
(a) NO PAYMENT OF DIVIDENDS OR DISTRIBUTIONS
at any time while either:
(i) the ratio in clause 5.3 is not complied with if it
were then tested, or would not be so complied with if
BPC made a payment of the kind described in this
clause 5.4(a); or
(ii) any amount of principal or interest payable on the
Capital Notes has fallen due and remains unpaid
(including where interest has been suspended in
accordance with the Conditions),
not to pay any dividend on, or make any other distribution in
respect of, or pay any interest on:
(iii) any of its shares, indebtedness or other securities
ranking, in its liquidation, pari passu with or
behind its obligations under the relevant Deed of
Guarantee; or
(iv) any indebtedness owed to a related company; and
not to acquire, redeem, or repay, or assist any person to
acquire, redeem or repay any of its indebtedness, shares or
other securities ranking, in liquidation, pari passu with or
behind its obligations under the relevant Deed of Guarantee;
(b) to forward to the Trustee, communications sent to holders of
Ordinary Shares generally, at the same time as those
communications are distributed to such holders of Ordinary
Shares;
(c) to issue Ordinary Shares on redemption of Capital Notes in
accordance with the Conditions and otherwise comply with the
obligations expressed to be assumed by it in the Conditions;
and
(d) use its reasonable endeavours to ensure that Ordinary Shares
issued on the redemption of Capital Notes are, upon their
issue, entitled to be quoted on the
24
Australian Stock Exchange and the New Zealand Stock Exchange
and that such quotation is maintained.
5.5 ACCOUNTS AND REPORTS OF DIRECTORS
The Company covenants with the Trustee that, while any Capital Notes
are outstanding, the Company will, no later than three months after the
end of each of its or BPC's financial years and financial half-years as
the case may be, deliver to the Trustee the reports and other
information referred to in sub-paragraphs (a), (b)(i) and (b)(ii) and,
if applicable, (c) below and send to each Noteholder the information
referred to in sub-paragraphs (b)(i) and, in relation to each full
financial year only, (b)(ii) below:
(a) DIRECTORS' REPORT
a report signed by two directors on behalf of the board of
directors of the Company, and a director and the Chief
Financial Officer of BPC on behalf of the board of BPC,
stating to the best of their knowledge and belief having made
due enquiry, during the immediately preceding financial year
or half-year (as the case may be):
(i) whether any matter has arisen relating to the Company
or BPC and its Subsidiaries which would adversely
affect the ability of the Company or BPC, as the case
may be, to perform its obligations under this Deed
and the Capital Notes and, if so, details of that
matter;
(ii) that each of the Company and BPC has duly observed,
performed and complied in all respects with its
obligations under this Deed and the Conditions (and,
if not, details of the contravention);
(iii) whether any Capital Notes have been redeemed (by
payment of cash or issue of Ordinary Shares),
cancelled or purchased by the Company, BPC or any of
its Subsidiaries and, if so, details of the
redemption, cancellation or purchase;
(iv) that all interest due on the Capital Notes has been
paid, or, if any interest has been deferred, in
accordance with the provisions of this Deed, the
amount of interest deferred;
(v) that each of the Company, BPC and each Guarantor has
remained solvent;
(vi) that the financial covenant specified in clause 5.3
was complied with at all times during the relevant
period (together with such supporting information as
is reasonably necessary to demonstrate the
calculation of that covenant);
(vii) that the covenant specified in clause 7 of each of
the Deeds of Guarantee was complied with at all times
during the relevant period; and
(A) the names of each of the companies referred
to in the financial statements delivered
pursuant to clause 5.5(b) which guarantees
the obligations of the Company under the
Capital Notes; and
(B) the value of the net tangible assets of each
such company determined for the preceding
financial half year or year, as the case may
be, by reference to the relevant financial
statements.
(b) COMPANY'S ACCOUNTS
to the extent not provided pursuant to clause 5.2(e) (or, in
relation to Noteholders, Rule 10.5 of the Listing Rules), a
copy of:
25
(i) the consolidated financial statements for the
Company; and
(ii) the consolidated financial statements for BPC and its
Subsidiaries (including financial statements for BPC
only),
in each case for the preceding financial year or half-year (as
the case may be) and, in the case of half-year statements
provided pursuant to (ii) above, those statements will be in
the form provided by BPC to the Australian Stock Exchange in
accordance with BPC's reporting obligations under the Listing
Rules;
(c) AUDITOR'S REPORT
at the same time as the audited annual consolidated financial
statements for BPC and its Subsidiaries are provided in
accordance with clause 5.5(b), a separate report by the
Auditors (addressed to the Trustee) stating:
(i) whether, in the course of performing their duties as
Auditors, they have become aware of any non-payment
by the Company of any interest under Capital Notes
(including any interest suspended in accordance with
the Conditions);
(ii) the aggregate Principal Amount of Capital Notes on
issue and outstanding;
(iii) whether the Register has been maintained in
accordance with the requirements of this Deed;
(iv) whether in the performance of their duties as
Auditors they have become aware of any matter which,
in their opinion, is relevant to the exercise or
performance of the powers or duties conferred or
imposed on the Trustee by this Deed or the Securities
Act 1978, and if so giving particulars thereof;
(v) whether their audit has disclosed any matter, and if
so giving particulars thereof, calling in their
opinion for further investigation by the Trustee in
the interests of the Noteholders; and
(vi) that they have perused the reports given by the
directors of the Company pursuant to clause 5.5(a)
since the last report by the Auditor (or the date of
this Deed, whichever is later) and that, so far as
matters which they have observed in the performance
of their duties as Auditors are concerned, nothing
has come to their attention to show that the
statements made in such reports by the directors are
not correct.
5.6 NATURE OF COMPANY'S ACCOUNTS
Each of BPC and the Company undertakes to ensure that any financial
statements delivered by it pursuant to clause 5.2(e) or 5.5(b) will be
prepared in accordance with GAAP, and audited in the case of financial
statements for a financial year.
5.7 AUDITORS
In the terms of engagement of the Auditors, the Company shall procure
that the Auditors shall:
(a) acknowledge the obligations imposed on an auditor under the
Securities Act 1978; and
(b) carry out the audit of the financial statements referred to in
clause 5.6 in accordance with GAAP.
26
6. TRUSTEE'S POWER TO REMEDY AND WAIVE
6.1 TRUSTEE MAY REMEDY
If the Company fails to pay any moneys due and payable under this Deed
then, without prejudice to any other rights and remedies of the
Trustee, the Trustee may (at its sole discretion) pay any such moneys.
All moneys so paid by the Trustee will be payable by the Company, as
applicable, to the Trustee upon demand in writing, together with all
costs, charges or expenses properly incurred by the Trustee in that
payment.
6.2 WAIVER BY TRUSTEE
Subject to any direction or request given by the Noteholders, the
Trustee may from time to time by notice in writing to the Company waive
in part or in whole, for a specified period or completely, and on such
terms and conditions (if any) as it deems expedient, any breach or
anticipated breach by the Company or BPC of any of the provisions of
this Deed or the Conditions, provided the Trustee is satisfied that the
interests of the Noteholders will not be materially prejudiced as a
result. Any such waiver will be binding on all Noteholders but will not
affect the rights of the Trustee and the Noteholders in respect of any
other breach. Notwithstanding anything in this Deed or otherwise
contained or implied or any rule of law to the contrary, the Trustee
will not be deemed to have given any such waiver unless the waiver is
given by the Trustee in writing.
7. APPOINTMENT OF AND POWERS AND DISCRETIONS OF TRUSTEE
7.1 APPOINTMENT
The Company hereby appoints the Trustee, and the Trustee accepts
appointment, as trustee for the Noteholders in respect of the Capital
Notes, with the rights, powers, duties and obligations set out in this
Deed and in the Conditions.
7.2 POWERS
In addition to the powers, authorities and discretions which may be
vested in trustees by law relating to trustees, and to facilitate the
discharge of its duties under this Deed, it is expressly declared that:
(a) ACT ON ADVICE
the Trustee may, subject to the provisions of this Deed,
without liability for loss, obtain, accept and act on, or
decline and elect not to accept and act on:
(i) the opinion or advice of, or any information obtained
from, any barrister, solicitor, valuer, stockbroker,
financial adviser, auditor, chartered accountant or
other expert, even though it may subsequently be
found to contain some error or not be authentic;
(ii) a certificate or report signed by any two directors
or senior officers, of the Company as to any fact or
matter prima facie within their knowledge as
sufficient evidence of that fact or matter; and
(iii) the statements contained in any certificate or report
given in accordance with this Deed as conclusive
evidence of the facts stated in that certificate or
report;
27
(b) RESOLUTION OF NOTEHOLDERS
the Trustee will not be liable to the Company or BPC, nor any
Noteholder for acting or relying upon any resolution
purporting to have been passed at any meeting of the
Noteholders in respect of which a proper record has been made
and which the Trustee believes to have been properly passed,
even though it afterwards appears that such resolution is not
binding or valid by reason of a defect in the convening of the
meeting or in the proceedings conducted at the meeting or for
any other reason;
(c) PROCEEDS OF CAPITAL NOTES AND DELIVERY OF HOLDING CERTIFICATES
AND ORDINARY SHARES
the Trustee will not be liable to the Company nor BPC, nor any
Noteholder for the receipt or application by the Company of
the Issue Price or be bound to see to the application of those
proceeds or for the delivery of Holding Certificates or
letters of allotment or certificates representing the Ordinary
Shares (if issued) to the persons entitled to them;
(d) BREACH OF DEED OR CAPITAL NOTES
except to the extent it is obligated to do so by law, the
Trustee will not be bound to take steps to ascertain whether
or not the Company or BPC has committed any breach of the
provisions of this Deed or any of the Capital Notes (and shall
be entitled to assume without enquiry that no such breach is
occurring or has occurred) unless:
(i) the Trustee has become aware that, or has received
specific advice that, a breach has, or appears to
have, occurred or threatens to occur, from the
directors of the Company, BPC or the Auditors; or
(ii) the Trustee has received notice of the Commencement
of Liquidation;
(e) DUTY OF CARE
the Trustee will not be liable to the Company, BPC or the
Noteholders unless the Trustee has acted in gross negligence,
fraudulently, dishonestly or in wilful breach of trust or any
law or has otherwise failed to show the degree of care and
diligence required of it having regard to the powers,
authorities and discretions conferred or imposed upon it by
this Deed or by any applicable law;
(f) EXERCISE OF TRUSTS, POWERS, AUTHORITIES, DISCRETIONS AND
RESPONSIBILITIES
except as otherwise expressly provided in this Deed, the
Trustee as regards all trusts, powers, authorities,
discretions and responsibilities vested in it by this Deed,
will have absolute discretion as to their exercise or
non-exercise and as to the commencement, modification,
discontinuance, compromise or conduct of any action,
proceeding or claim and, provided it acts in good faith, it
will not be responsible for any loss, damage, cost or expense
that may result from the exercise or non-exercise of such;
(g) POWER TO DELEGATE
the Trustee may, whenever it thinks it expedient in the
interests of the Noteholders to do so:
(i) delegate at any time to any person any of the trusts,
powers, authorities, discretions or responsibilities
vested in the Trustee by this Deed which cannot
conveniently be exercised by it or through its
employees upon such terms and conditions (including
the power to sub-delegate) as the Trustee may
reasonably
28
think fit (provided that the Trustee shall remain
liable for the actions of any delegate);
(ii) authorise such person as it thinks fit to act as its
representative at any meeting; and
(iii) apply to the court at any time for directions in
relation to any matter or for an order that the
powers and trusts contained in this Deed be exercised
under the direction of the court, or, subject to
clause 7.4, consent to, approve or oppose any
application to court by the Company or by or at the
instance of any Noteholder;
(h) CONSENTS
any consent given by the Trustee for the purposes of this Deed
may be given on such terms and conditions (if any) as the
Trustee reasonably thinks fit;
(i) POWER TO REMEDY BREACH
the Trustee's powers to remedy any breach of this Deed are
subject to any other provision of this Deed which is
inconsistent with the exercise of such powers;
(j) DUTIES TO COMPANY
the Trustee has no duties and responsibilities under this
Deed, other than under clause 3.9, to any Noteholder which is
BPC or any of its Subsidiaries;
(k) POWER TO INVEST
any moneys held by the Trustee and subject to the trusts
constituted or to be constituted under this Deed may, at the
discretion of the Trustee, be invested in the name of the
Trustee or its nominee in any investments it considers fit
with power to vary or transpose such investments for others of
a like nature and deal with or dispose of such investments
(less any customary fees and expenses incurred in connection
with such investments), and all income from such investments
will belong to the person in respect of whom such moneys are
held by the Trustee;
(l) LISTING RULES
subject to compliance by the Trustee with its obligations
under the Securities Regulations 1983, the Trustee shall not
be required to monitor compliance by the Company, BPC or any
other party with the Listing Rules and, in the absence of
notice to the contrary from the Company, BPC or the Australian
Stock Exchange or New Zealand Stock Exchange, shall be
entitled to assume that each of the Company and BPC is so
complying. In the event of non-compliance with any Listing
Rule, the Trustee, in determining the action to be taken or
not taken by it, shall be entitled to have regard to the
actions of the Australian Stock Exchange or New Zealand Stock
Exchange, as the case may be, in relation to that
non-compliance by the Company or BPC, as the case may be;
(m) MATERIALITY
the Trustee may determine whether or not a failure by the
Company or BPC to perform any obligation under the provisions
of the Conditions or this Deed is in its opinion capable of
remedy or is materially prejudicial to the interests of the
Noteholders and any such determination shall be conclusive and
binding upon the Noteholders; and
29
(n) DUTY TO CONSULT
unless the Trustee considers it is impractical or undesirable
to do so, the Trustee will consult with the Company before
seeking the advice or opinion of any of the persons listed in
clause 7.2(a)(i).
7.3 DISCRETION TO CONSULT NOTEHOLDERS
Subject to clause 12, following any breach of this Deed (or any Deed of
Guarantee) by the Company or BPC (or any Guarantor) or the occurrence
of any circumstances which may result in such a breach which the
Trustee reasonably considers may be materially prejudicial to the
interests of the Noteholders, the Trustee may, in its absolute
discretion:
(a) report to the Noteholders, or any of them, the circumstances
and nature of such breach and any other information concerning
the Company, BPC (or the relevant Guarantor) which the Trustee
has received under or in relation to this Deed or the Capital
Notes and which it reasonably considers to be material to the
Noteholders or any of them; and
(b) invite the Noteholders or any of them to indicate to the
Trustee their preferences as to any exercise or non-exercise
of the Trustee's powers under this Deed, any Deed of Guarantee
or the Capital Notes or as to any action or omission to act by
the Trustee in relation to the breach.
Any such report may be given in such manner as is considered by the
Trustee to be practicable and expedient in all the circumstances.
7.4 TRUSTEE'S RIGHT TO BE INDEMNIFIED
The Trustee may decline to take any action or exercise any power or
discretion or comply with or implement any direction or request given
in accordance with this Deed whether or not it is otherwise bound to so
act unless and until the Trustee and each of its officers, employees or
agents are first indemnified and/or secured by the Noteholders to its
satisfaction against all actions, proceedings, claims and demands to
which any of them may be rendered liable and all costs, charges,
losses, damages and expenses which it or they may incur by so doing.
7.5 TRUSTEE MAY CONCUR IN MODIFICATION
The Trustee may, without the consent of the Noteholders, concur with
the Company and BPC in making any modification or addition to this
Deed, each Deed of Guarantee or the Conditions:
(a) MANIFEST ERROR OR OF TECHNICAL NATURE
if:
(i) it is made to correct a manifest error; or
(ii) it is made to comply with law or any applicable
Listing Rules; or
(iii) it is of a formal or technical nature; or
(iv) it is convenient for the purpose of obtaining or
maintaining any quotation of the Capital Notes on the
New Zealand Stock Exchange; or
(v) it is necessary pursuant to the operation of clause
1.6;
30
(b) AUTHORISED BY EXTRAORDINARY RESOLUTION
if it is authorised by an Extraordinary Resolution; or
(c) NO PREJUDICE TO NOTEHOLDERS
if the Trustee is of the opinion that it is not, and is not
likely to become, materially prejudicial to the interest of
the Noteholders generally.
Any such modification or addition will be binding on all Noteholders.
No such modification or addition will be effective unless it is in
writing signed by the Company, BPC and the Trustee. In addition, the
Trustee may:
(i) without requiring the consent of the Noteholders,
execute a deed of release pursuant to clause 8 of
each Deed of Guarantee in relation to any Guarantor
other than BPC provided the Trustee has received, in
a form satisfactory to it, all relevant certificates
and documents required to be delivered to the Trustee
under that clause; and
(ii) execute a deed of release in relation to any other
Guarantor (including BPC) if either:
(A) execution of that release has been
authorised by an Extraordinary Resolution;
or
(B) the Trustee is of the opinion that execution
of that release would not be, and is not
likely to become, materially prejudicial to
the interest of the Noteholders generally.
7.6 FIDUCIARY RELATIONSHIP
The Trustee may not be a Noteholder on its own account. However,
nothing in this Deed prohibits the Trustee or its holding company or
any of their Subsidiaries or their officers or shareholders (all for
the purposes of this clause, where the context permits, being included
in the expression the Trustee) from being a Noteholder in any trustee,
agency, nominee or other representative capacity, or from being a
creditor or shareholder of, or having any other interest in, BPC or of
any of its Subsidiaries or from acting in any other fiduciary,
contractual, agency or representative capacity for a Noteholder or BPC
or any of its Subsidiaries without breach of any obligations
established by this Deed or otherwise imposed or implied by law arising
out of any such relationship. The Trustee may enter into any
transaction with BPC or any of its Subsidiaries in the ordinary course
of business and will not be accountable to the Noteholders for any
profits arising from such transactions.
8. MEETINGS OF NOTEHOLDERS
8.1 REGULATIONS OF MEETINGS
Each meeting of Noteholders is to be convened and held in accordance
with Schedule 3.
8.2 REPRESENT NOTEHOLDERS
The Trustee may, of its volition or in accordance with any directions
or in accordance with an Extraordinary Resolution, represent
Noteholders in any investigation, negotiation, action, transaction,
matter or proceedings affecting the interests of Noteholders.
31
9. INDEMNITY OF TRUSTEE
Without prejudice to the right of indemnity by law given to trustees,
the Trustee and each of its officers, employees, attorneys or agents
are entitled to be indemnified by the Company and out of any moneys it
holds upon the trusts of this Deed, on an unsubordinated basis, in
respect of all liabilities and expenses incurred by it or any of them
in the performance or exercise or attempted or purported performance or
exercise of any of the trusts, powers, authorities or discretions
conferred on the Trustee or any of them by this Deed and against all
actions, proceedings, costs, losses, claims and demands in respect of
any matter or thing done or omitted in any way relating to this Deed
other than liabilities, expenses, actions, proceedings, costs, losses,
claims or demands arising out of:
(a) FRAUD, BAD FAITH OR DISHONESTY
fraud, gross negligence, wilful breach of trust or law or
dishonesty on the part of the Trustee or any of its officers,
employees, attorneys or agents; or
(b) BREACH OF DUTY OF CARE
any failure by the Trustee to show the degree of care and
diligence required of the Trustee having regard to the powers,
authorities and discretions conferred on the Trustee by this
Deed,
and the Trustee may retain and pay out of any moneys it holds upon the
trusts of this Deed, all sums necessary to effect and satisfy that
indemnity, together with the remuneration and reimbursements of the
Trustee as provided for in this Deed.
10. RETIREMENT, REMOVAL AND NEW APPOINTMENT OF TRUSTEE
10.1 RETIREMENT OF TRUSTEE
Subject to section 48(2) of the Securities Act 1978:
(a) RETIREMENT BY TRUSTEE
the Trustee may retire at any time without assigning any
reason upon giving 90 days' notice (or such lesser period of
notice as the Company may agree) in writing to the Company,
subject to the due appointment of a new trustee and the
transfer to such new trustee of all moneys and investments
held by the Trustee under this Deed;
(b) REMOVAL BY COMPANY
the Company may at any time without assigning any reason upon
giving at least 90 days' notice in writing to the Trustee (or
such lesser period of notice as the Trustee may agree), remove
the Trustee (including any new trustee appointed upon the
retirement or removal of any previous Trustee); and
(c) EXTRAORDINARY RESOLUTION
the Noteholders may by way of an Extraordinary Resolution
remove the Trustee.
32
10.2 APPOINTMENT OF NEW TRUSTEE
(a) APPOINTMENT BY THE COMPANY SUBJECT TO APPROVAL BY NOTEHOLDERS
The power to appoint a new trustee or trustees of this Deed is
vested in the Noteholders by way of an Extraordinary
Resolution and in the Company, but no new trustee may be
appointed by the Company unless such appointment is first
approved by an Extraordinary Resolution. Upon the Trustee
notifying the Company that it wishes to retire, or upon the
Company wishing to appoint a new trustee, the Company must
promptly call a meeting of the Noteholders for the purposes of
approving an appointment of a new trustee and, if such
approval is given, the Company may exercise its power of
appointment.
(b) APPOINTMENT BY NOTEHOLDERS
If the Company, within 60 days of receiving notice of the
Trustee's intention to retire, fails to call a meeting of the
Noteholders in accordance with clause 10.2(a) or to exercise
the power vested in it under that clause to appoint a new
trustee or new trustees, in either case, the Noteholders may
by Extraordinary Resolution exercise such power to the
exclusion of the Company.
(c) NOTIFICATION OF NEW TRUSTEE
The Company must notify all Noteholders of the identity of any
new trustee appointed as soon as reasonably possible following
such appointment.
11. TRUSTEE'S REMUNERATION AND EXPENSES
11.1 BASIC REMUNERATION
The Company will pay to the Trustee remuneration for its services as
Trustee in accordance with the terms of any current agreement contained
in letters exchanged between the Company and the Trustee.
11.2 EXPENSES
The Company will also pay all costs, charges, taxes or duties
(including legal expenses) properly incurred by or on behalf of the
Trustee in connection with:
(a) PREPARATION, EXECUTION AND MODIFICATION OF DEED
the preparation, execution and modification (and release when
applicable) of this Deed (including any Supplemental Deed);
(b) EXERCISE OF POWERS
any proper exercise by the Trustee of any power or discretion
conferred on the Trustee or upon any Noteholders by this Deed
or in respect of the Capital Notes, or the performance of its
duties;
(c) BREACH BY COMPANY
any breach, default or non-compliance by the Company, BPC or
any of its Subsidiaries of or with any obligation under this
Deed, any Deed of Guarantee or the Capital Notes;
33
(d) MEETINGS OF NOTEHOLDERS
the convening and holding of any meeting of Noteholders and
carrying out of any directions or resolutions of such a
meeting; and
(e) OTHER MATTERS
any other matters dealt with in the agreement referred to in
clause 11.1.
11.3 LIABILITY NOT TERMINATED
The remuneration and payments payable under this clause 11 will
continue to be payable until the trusts of this Deed are finally wound
up (whether or not the Company is in Liquidation or the trusts of this
Deed are in course of administration by or under the direction of the
court).
12. DISCLOSURE OF INFORMATION
Notwithstanding any other provision of this Deed, neither the Company
nor BPC is required to provide any information to a Noteholder where:
(a) it would be unlawful to do so; or
(b) the information is confidential; or
(c) in the reasonable opinion of the Company or BPC, as the case
may be, the information is commercially sensitive,
but may be required, in accordance with this Deed, to provide such
information to the Trustee. The Company may require that the Trustee
undertakes to keep such information confidential (including as against
Noteholders) and the Trustee shall be entitled to, and shall, give and
honour that undertaking unless the Trustee has legal advice that to do
so would prevent the Trustee fulfilling its duty to Noteholders.
13. NOTICES
Each notice to be given in accordance with this Deed will be deemed
effective if made in writing, delivered or posted by pre-paid mail or
sent by telex or facsimile addressed to:
(a) in the case of the Company:
Goodman Finance Limited
C/- Burns, Philp & Company Limited
Level 23, 56 Pitt Street
Sydney NSW 2000
Australia
Attention: Helen Golding, Company Secretary and Group
Legal Counsel
Fax no.: 61 (02) 9247 3272
34
(b) in the case of BPC:
Burns, Philp & Company Limited
C/- Burns, Philp & Company Limited
Level 23, 56 Pitt Street
Sydney NSW 2000
Australia
Attention: Helen Golding, Company Secretary and Group
Legal Counsel
Fax no.: 61 (02) 9247 3272
(c) in the case of the Trustee:
The New Zealand Guardian Trust Company Limited
Level 7
Royal & SunAlliance Centre
48 Shortland Street
PO Box 1934
Auckland
Attention: Chief Manager - Corporate Trusts
Fax no.: (09) 377 7477
(d) in the case of a Noteholder, the address of such Noteholder
last entered in the Register,
or, in the case of (a), (b) or (c) above, such other address as the
Company, BPC or the Trustee may from time to time in writing nominate
to the others. Each notice will be deemed to be given, in the case of
personal delivery, when delivered, and in the case of post, two
Business Days after the date of posting. If sent by telex or facsimile,
notices will be deemed to be given when sent or, if sent on other than
a Business Day or after 5 p.m. on any Business Day, the next Business
Day.
14. DISCHARGE OF DEED
The Trustee will, upon being reasonably satisfied that no moneys are
actually or contingently owing under this Deed or any Capital Note,
execute a discharge of this Deed whenever requested by the Company so
to do, but any such discharge will be without prejudice to any
indemnity given by the Company in favour of the Trustee or any
unremedied breach or unperformed obligation under this Deed.
15. INVALIDITY
If any provision of this Deed or the Capital Notes is invalid, void,
illegal or unenforceable the validity, existence, legality and
enforceability of the remaining provisions will not be affected,
prejudiced or impaired to the maximum extent permitted under law.
16. GOVERNING LAW AND JURISDICTION
16.1 GOVERNING LAW
This Deed is governed by the laws of New Zealand.
35
16.2 JURISDICTION
(a) In New Zealand: Each of the parties irrevocably and
unconditionally agrees that the courts of New Zealand shall
have jurisdiction to hear and determine each suit, action or
proceeding ("proceedings"), and to settle disputes, which may
arise out of or in connection with this Deed and for those
purposes irrevocably submits to the jurisdiction of those
courts.
(b) Other Jurisdictions: This submission to jurisdiction does not
(and is not to be construed to) limit the rights of the
Trustee to take proceedings against the Company or BPC in
another court of competent jurisdiction nor is the taking of
proceedings in one or more jurisdictions to preclude the
taking of proceedings in another jurisdiction, whether
concurrently or not.
16.3 PROCESS AGENT
BPC irrevocably agrees that the process by which any suit, action or
proceeding in New Zealand is begun may be served on it by being
delivered to the Company at its registered office for the time being
without prejudice to any other lawful means of service.
EXECUTION
EXECUTED as a deed
SIGNED for and on behalf of
GOODMAN FINANCE LIMITED by its
attorney in the presence of:
/s/ Gavin MacDonald
________________________________
Attorney
Gavin MacDonald
________________________________
Print Name
/s/ Sarah Kristen McEwan
__________________________________
Witness Signature
Sarah Kristen McEwan
__________________________________
Print Name
Solicitor
__________________________________
Occupation
Auckland, New Zealand
__________________________________
Address
36
SIGNED SEALED AND DELIVERED FOR
BURNS, PHILP & COMPANY LIMITED
by its attorney in the presence of:
/s/ Gavin MacDonald
________________________________
Attorney
Gavin MacDonald
________________________________
Print Name
/s/ Sarah Kristen McEwan
__________________________________
Witness Signature
Sarah Kristen McEwan
__________________________________
Print Name
Solicitor
__________________________________
Occupation
Auckland, New Zealand
__________________________________
Address
EXECUTED under the name and seal
of THE NEW ZEALAND GUARDIAN
TRUST COMPANY LIMITED by:
/s/ James Douglas /s/ Michael Knowles
__________________________________ ________________________________
Authorised Signatory Authorised Signatory
Witness to both signatures
/s/ Karen Anne Donald
__________________________________
Signature
Karen Anne Donald
__________________________________
Name
Administrator, Personal Client Services
__________________________________
Occupation
Remuera, New Zealand
__________________________________
Address
37
SCHEDULE 1: FORM OF CAPITAL NOTE HOLDING CERTIFICATE
THIS CERTIFICATE IS NOT A DOCUMENT OF TITLE AND DOES NOT EVIDENCE OWNERSHIP OF
CAPITAL NOTES. OWNERSHIP IS DETERMINED SOLELY BY REFERENCE TO THE REGISTER OF
CAPITAL NOTES.
Certificate No: Election Date:
Holder No:
GOODMAN FINANCE LIMITED CAPITAL NOTE CERTIFICATE
[THE PERSON NAMED BELOW IS THE HOLDER OF [FIVE/EIGHT] YEAR CAPITAL NOTES HAVING
A PRINCIPAL AMOUNT OF [$ ]
Noteholder: ___________________________________________
Name
___________________________________________
Address
Goodman Finance Limited (the COMPANY) certifies that the abovenamed Noteholder
is registered for the term expiring on the first Election Date as the holder of
unsecured, subordinated capital notes having the Principal Amount stated above.
The Capital Notes are issued by the Company under a Trust Deed dated April
2003 made between the Company, Burns, Philp & Company Limited and The New
Zealand Guardian Trust Company Limited, as trustee for the Noteholders (the
TRUST DEED).
The total principal amount of unsecured, subordinated capital notes of the class
comprised in the Certificate issued or to be issued by the Company is .
The Capital Notes are constituted under the Trust Deed and are issued with the
benefit of, and subject to the terms and conditions of, the Trust Deed and the
Conditions set out therein. The Capital Notes are also issued with the benefit
of each Deed of Guarantee. Words and expressions defined in the Trust Deed
(including the Conditions) and not otherwise defined in this Certificate have
the same meanings where used in this Certificate.
DATED 20
Signed by GOODMAN FINANCE LIMITED
by:
__________________________________
Director
38
SUMMARY OF CONDITIONS
PLEASE NOTE THAT THIS IS A SUMMARY ONLY OF THE CONDITIONS ATTACHING TO THE
CAPITAL NOTES. THE CONDITIONS AND ALL OTHER PROVISIONS RELATING TO THE CAPITAL
NOTES ARE SET OUT IN FULL IN THE TRUST DEED.
INTEREST ON THE CAPITAL NOTES
Subject to the Conditions, interest on the Capital Notes will be paid at a rate
of [ ]% per annum and will accrue from the date of allotment. Interest will be
paid on [ ], [ ], [ ] and [ ] in each year with the first payment
due on [ ].
[NOTE: THE ABOVE INFORMATION WILL BE AMENDED AS NECESSARY TO REFLECT THE DETAILS
OF THE RELEVANT CAPITAL NOTE]
PRINCIPAL UNDERTAKINGS
The Company's principal undertakings to the Trustee on behalf of Noteholders
under the Trust Deed are:
(a) topay interest on the Capital Notes comprised in this Certificate in
accordance with Condition 3, but subject to Condition 2.2 and subject
to the Company's right to suspend the payment of interest in the
circumstances described in Condition 3.2;
(b) in Liquidation of the Company and upon Commencement of Liquidation of
the Company, to redeem the Capital Notes by payment of the Liquidation
Amount in accordance with Condition 2.2; and
(c) prior to the Election Date to provide written notice to each Noteholder
specifying:
(i) the proportion (if any) of the outstanding Capital Notes to be
compulsorily redeemed or purchased in accordance with
Conditions 4.3(c) and (d); and
(ii) the new conditions as to Interest Rate, Interest Dates,
Election Date and otherwise.
ELECTION PROCEDURE
Not later than the date falling 13 Business Days before and including the
Election Date, the Noteholder must elect:
(a) the Capital Notes in respect of which the Noteholder accepts the new
conditions ; and
(b) the Capital Notes in relation to which the Noteholder does not accept
the new conditions and which the Noteholder wishes to have redeemed in
accordance with Condition 4.3 on the Election Date.
No later than 10 Business Days before and including the Election Date the
Company (at its discretion) may elect, to redeem (by way of payment of cash or
by the issue of Ordinary Shares by BPC) or purchase (by way of payment of cash
by itself or a Subsidiary of BPC) all, or any part, of the Capital Notes. Where
Capital Notes are to be redeemed by payment in cash, the Noteholder will receive
an amount equal to the Principal Amount and Accrued Interest and Unpaid Interest
then owing (or the corresponding proportion). The Company's election may be made
irrespective of any election made by a Noteholder. The Ordinary Shares to be
issued on the redemption of those Capital Notes will be issued in accordance
with a formula based on the Principal Amount and Accrued Interest and Unpaid
Interest then owing and the New Zealand Dollar Equivalent of the amount which is
determined by the Company to be 95% of the weighted average sale price of an
Ordinary Share sold on the Australian Stock Exchange during the period of 10
Business Days immediately prior to the Election Date.
Noteholders may also be entitled to require the Company to purchase or redeem
Capital Notes where a general offer to purchase shares in BPC is made and a
person or persons become entitled to
39
acquire all of the shares in the Company or exercise all of the votes attaching
to Ordinary Shares. These rights are set out in Condition 4.5.
LIMITED RIGHTS OF REDEMPTION BY NOTEHOLDERS
Each Capital Note has no fixed maturity or redemption date and the only rights
of redemption prior to the Commencement of Liquidation are as summarised above.
The only right of the Trustee or a Noteholder to require redemption of the
Capital Notes prior to the Election Date is on the Commencement of Liquidation
of the Company, being where a liquidator or statutory manager is appointed to
the Company or the Company is otherwise dissolved or removed from the register
of companies.
EARLY REDEMPTION BY COMPANY
The Company may, at any time after 5 May 2004, upon 45 days' notice to a
Noteholder redeem all or any portion of the Capital Notes. If the Company
redeems a portion of the Capital Notes only, it will do so on a pro rata basis.
NO REMEDY FOR BREACH
Each of the Company and BPC has provided limited representations, warranties and
covenants in the Trust Deed. The Trustee and Noteholders have no remedies
against the Company, BPC or any Guarantor for a breach of any representation,
warranty or covenant contained in the Trust Deed, the Conditions or any Deed of
Guarantee except remedies provided at law.
TRANSFERS
The Capital Notes may be transferred in minimum Principal Amounts of $1,000 or
such lesser amount as the Company may from time to time permit, provided that,
following any such transfer, the transferee holds Capital Notes with a minimum
Principal Amount of $5,000 per Tranche.
Transfers of Capital Notes may be effected by:
- - a written instrument of transfer in any usual or common form signed by
the Transferor and the Transferee; or
- - means of the FASTER system operated by the New Zealand Stock Exchange;
or
- - any other method of transfer of marketable securities which is not
contrary to any law and which may be operated in accordance with any
listing rules, and which is approved by the Company.
In the circumstances specified in Condition 5.12, the Company has the power to
compulsorily acquire and sell the Capital Notes held by a Noteholder.
40
NOTICES
The Company is obliged to send to the Noteholder certain notices and other
information at the Noteholder's address recorded in the Register of Capital
Notes. These notices are important and the Noteholder is advised to notify the
Registrar promptly of a change of address.
GUARANTEE
The Company's obligations in respect of the Capital Notes are guaranteed on an
unsecured, subordinated basis by BPC and certain Subsidiaries of BPC.
SUBORDINATION
The Trust Deed and the Conditions and each Deed of Guarantee contain provisions
which defer in priority payments on the Capital Notes and under the relevant
Deed of Guarantee and otherwise limit the rights of the Noteholders, and the
Trustee on their behalf, in a manner consistent with the unsecured, subordinated
nature of the indebtedness under the Capital Notes and the Deeds of Guarantee.
The duties and liabilities of the Trustee are limited accordingly. The
Noteholder is deemed to be aware of, and to have accepted and agreed to be bound
by, such provisions and all other terms and conditions of the Trust Deed and the
Conditions and each Deed of Guarantee.
REGISTER
The Register is the sole and conclusive record of each Capital Note and as to
the person entitled to the Capital Note. Accordingly, this Certificate is not an
instrument of title and does not give to the Noteholder any rights independent
from the rights contained in the Trust Deed or the Conditions and is conditional
upon the terms and conditions set out in the Trust Deed and the Conditions.
The Registrar for the Capital Notes is Computershare Investor Services Limited,
Private Bag 92119, Auckland.
Copies of the Trust Deed and the Deeds of Guarantee may be obtained free of
charge at the registered office of the Company or, inspected upon payment of a
fee, at the Companies Office, Business and Registries Branch, 3 Kingston Street,
Auckland.
PAYMENTS
All payments will be made to Noteholders net of any taxes which are required to
be deducted at law.
41
SCHEDULE 2: CONDITIONS OF THE CAPITAL NOTES
1. DEED
1.1 DEED BINDING
The statements in these Conditions are subject to the detailed
provisions of the trust deed dated 30 April 2003 (the DEED) between
Goodman Finance Limited, Burns, Philp & Company Limited and The New
Zealand Guardian Trust Company Limited, as trustee.
1.2 NOTICE OF DEED
Noteholders are entitled to the benefit of, are bound by, and are
deemed to have notice of, the Deed.
1.3 DEFINITIONS
In these Conditions, terms and expressions defined in the Deed and not
otherwise defined in these Conditions have the same meanings where used
in these Conditions. In addition:
ACCRUED INTEREST means all interest on the Principal Amount of the
Capital Notes which has accrued and is payable in accordance with these
Conditions, other than any such interest which comes within the
definition of "Unpaid Interest";
CASH REDEMPTION DATE means the date on which a Capital Note is, or is
to be, redeemed or purchased for cash by BPC or any wholly owned
Subsidiary of BPC;
CLOSING DATE means the date on which the Company declares the initial
offer of Capital Notes to be closed;
EIGHT YEAR NOTE means each Capital Note which is designated as an Eight
Year Capital Note when issued by the Company;
ELECTION DATE means:
(a) in respect of a Five Year Note, 15 December 2008 and each
subsequent New Election Date; and
(b) in respect of an Eight Year Note, 15 November 2011 and each
subsequent New Election Date;
ELECTION RECORD DATE means the date which is 33 Business Days before
the Election Date;
FINAL INTEREST DATE means the first to occur of the Share Redemption
Date, the Cash Redemption Date or the Liquidation Redemption Date;
FIVE YEAR NOTE means each Capital Note which is designated as a Five
Year Capital Note when issued by the Company;
HIGH YIELD NOTES means:
(a) the 10 3/4% senior subordinated notes due 2011 issued by Burns
Philp Capital Pty Limited (BURNS PHILP CAPITAL) and Burns
Philp Capital (U.S.) Inc. (BPCUS and together with Burns Philp
Capital, the ISSUERS), and guaranteed on a senior
42
subordinated basis by BPC and certain of its subsidiaries,
pursuant to an indenture dated February 20, 2003, among the
Issuers, BPC, the Subsidiary Guarantors from time to time
party thereto, and Wells Fargo Bank, as trustee; and
(b) the 9 3/4% senior subordinated notes due 2012 issued by Burns
Philp Capital and guaranteed on a senior subordinated basis by
BPC and certain of its subsidiaries, pursuant to an indenture
dated June 21, 2002 among Burns Philp Capital, BPC, the
Subsidiary Guarantors from time to time party thereto, and The
Bank of New York, a New York banking corporation, as trustee.
INTEREST DATE means:
(a) in respect of each Five Year Note, 15 December 2003 and each
15 March, 15 June, 15 September and 15 December thereafter
until the Final Interest Date; and
(b) in respect of each Eight Year Note, 15 November 2003 and each
15 February, 15 May, 15 August and 15 November thereafter
until the Final Interest Date,
or, in each case, such other date determined by the Company pursuant to
Condition 4.1(a) or 4.5, as the case may be;
INTEREST PERIOD means the period from and including one Interest Date
to, but excluding, the next Interest Date, provided that the first
Interest Period will be deemed to be a period from and including the
date of allotment for a Capital Note to, but excluding:
(a) in the case of each Five Year Note, 15 December 2003; and
(b) in the case of each Eight Year Note, 15 November 2003;
INTEREST RATE means, in respect of a Capital Note and the period from
allotment to the first Election Date, the rate of interest payable on
that Capital Note as set out in the Rate Card that applies to that
Capital Note at the date of allotment of that Capital Note, unless the
Company increases the rate applicable to Capital Notes of that Tranche,
in which case the rate in respect of that Capital Note will be that
higher rate and, in respect of the period after the first Election Date
the rate determined by the Company in accordance with Condition 4.1(a)
or 4.5, as the case may be;
ISSUERS has the meaning set out above in the definition of High Yield
Notes;
LEAD MANAGER means First NZ Capital Securities;
LIQUIDATION AMOUNT means the Principal Amount of a Capital Note plus
all Accrued Interest and Unpaid Interest in respect of that amount;
LIQUIDATION REDEMPTION DATE means, in the event of Liquidation of the
Company, the date on which the Capital Note is redeemed by payment of
the Liquidation Amount;
NEW CONDITIONS means the new conditions as to Interest Rate, Interest
Dates, Election Date, financial covenants and each other modification
to the Conditions to apply to a Tranche of Capital Notes following the
Election Date;
NEW ELECTION DATE means the Election Date that will apply to a Tranche
of Capital Notes following the initial Election Date, as specified in
the New Conditions;
NOTIFICATION DATE means the date which is 20 Business Days after the
Election Record Date;
OPENING DATE means 5 May 2003;
43
ORGANISING BROKER means First NZ Capital Securities;
RATE CARD means the card distributed with the Investment Statement
relating to the Capital Notes which sets out the Interest Rates
applicable to each Tranche of Capital Notes and each subsequent card
issued in place of the previous card in accordance with Condition 3.1;
RECORD DATE means a Friday which is also a day on which the New Zealand
Stock Exchange is open for trading (or the previous day if the New
Zealand Stock Exchange is not open for trading on such Friday), not
less than seven Business Days prior to the relevant Interest Date, such
Record Date being notified to the New Zealand Stock Exchange at least
10 Business Days prior to the relevant Record Date, or within such
lesser period as is approved by the New Zealand Stock Exchange;
SENIOR CREDITORS means:
(a) in relation to the Company, all creditors of the Company other
than:
(i) holders of Capital Notes; and
(ii) creditors who have agreed to rank subordinate to the
obligations of the Company under the Capital Notes,
or pari passu with such obligations; and
(b) in relation to any Guarantor, all creditors of that Guarantor
other than:
(i) the beneficiaries of the Deed of Guarantee to which
that Guarantor is party; and
(ii) creditors who have agreed to rank subordinate to the
obligations of the Guarantor under the relevant Deed
of Guarantee, or pari passu with such obligations,
and, for the avoidance of doubt, includes the holders of the High Yield
Notes and the holders of any other notes or other debt instruments
issued from time to time on substantially the same terms as, or ranking
pari passu with, the High Yield Notes;
SHARE REDEMPTION DATE means the date upon which a Capital Note is, or
is to be, redeemed by the issue of Ordinary Shares;
SWAP RATE means, on any date in relation to a specified term (TERM),
the bank swap mid rate for that Term as quoted at 11.00am (or such
other time as the Company and the Lead Manager agree and, in any event,
before 12:00 midday) on that date on Reuters-FISSWAP page (or its
successor page) or if no such rate is quoted for a period that
corresponds to that Term (plus or minus 10 days) then the rate shall be
the linearly interpolated rate falling between two quoted rates at that
time, which corresponds to that Term, (as determined by the Lead
Manager (whose determination shall be final, except in the case of
manifest error)) or, if no rates are quoted on Reuters-FISSWAP page (or
its successor page) on that day, then the rate which the Lead Manager
reasonably determines, after consultation in good faith with the
Company, to be the nearest practicable equivalent after consulting with
two banks or financial institutions previously approved by the Company
which generally quote rates on Reuters-FISSWAP page (or its successor
page);
UNPAID INTEREST means, on any date and in respect of any Capital Note,
the aggregate of:
(a) all interest which was not paid on its due date and remains
unpaid (whether due to suspension pursuant to Condition 3.2(a)
or otherwise); and
(b) all interest on interest which was not paid on its due date
(whether due to a suspension pursuant to Condition 3.2(a) or
otherwise) and which has accrued in accordance with Condition
3.2(b) and remains unpaid.
44
2. STATUS AND SUBORDINATION OF THE CAPITAL NOTES
2.1 STATUS
The Capital Notes constitute unsecured subordinated obligations of the
Company and rank pari passu and without priority or preference among
themselves. The Company's obligations in respect of the Capital Notes
are guaranteed on a subordinated basis by BPC and certain Subsidiaries
of BPC on the terms set out in the Deeds of Guarantee. None of the
Company's directors, the directors of BPC and its Subsidiaries, the
Trustee, the Organising Broker, the directors of any promoter or any
other person other than the Guarantors guarantee the Company's
obligations under the Deed and the Capital Notes in any way.
2.2 SUBORDINATION
The obligations of the Company to the Noteholder under, and the rights
of the Noteholder (or the Trustee on behalf of the Noteholder) against
the Company in respect of, the Principal Amount of, and Accrued
Interest and Unpaid Interest on, the Capital Notes are subordinated in
point of priority and right of payment to, and rank behind, the claims
of the Senior Creditors in Liquidation and in bankruptcy,
reorganisation, insolvency, receivership or similar proceedings for the
benefit of creditors. In addition, in Liquidation and upon the
Commencement of Liquidation the claims of the Noteholder against the
Company under and in respect of the Capital Notes in such Liquidation
are subject to clause 3.15 of the Deed, limited to the Liquidation
Amount. Payment of any amount due in respect of the Capital Notes is
not permitted if the conditions described in clause 3.16 of the Trust
Deed are not satisfied.
2.3 RELEVANT PROVISIONS OF DEED
The Deed contains provisions restricting the remedies of the Trustee
and the Noteholder in relation to the Capital Notes and providing that
the Trustee and the Noteholder must hold on trust various amounts in
favour of the Trustee and Senior Creditors. In the event of any
conflict between the Deed and these Conditions, the Deed is to prevail.
3. INTEREST
3.1 INTEREST RATE AND CALCULATION OF INTEREST
Each Capital Note bears interest on the Principal Amount at the
Interest Rate. Prior to the Closing Date, the Company will from time to
time advise any change in the Interest Rate applicable to the Capital
Notes. Such details will be notified by general announcement to the New
Zealand Stock Exchange and will also be notified to investors by
distribution of replacement Rate Cards. Following any such
announcement, such Interest Rate shall apply until any further
announcement is made by the Company. The Interest Rate applying with
effect from the date of allotment in relation to a Capital Note will be
specified in the Holding Certificate (if any) provided to each
Noteholder pursuant to this Deed.
Interest will be calculated on the Principal Amount of a Capital Note
and will accrue daily from the date of allotment of the Capital Note on
the basis of a 365-day year (subject to Condition 3.2). Interest will
cease to accrue on each Capital Note on the earliest of:
(a) the Share Redemption Date;
(b) the Cash Redemption Date; and
(c) the Commencement of Liquidation of the Company (but without
prejudice to clause 3.15).
45
3.2 INTEREST AND UNPAID INTEREST
(a) ACCRUED INTEREST AND SUSPENSION OF INTEREST
Accrued Interest accrued during each Interest Period (and any
Unpaid Interest) is payable on the Interest Date falling at
the end of that Interest Period. The amount of interest
payable on a Capital Note on each Interest Date (other than
the first Interest Date) shall be determined as follows:
Interest Payment = Principal Amount of Capital Note x Interest
-------------------------------- Rate
4
The amount of interest payable on a Capital Note on the
initial Interest Date shall be determined as follows:
Days elapsed between
date of allotment
and initial
Interest Date
Interest = Principal Amount x [Interes x --------------------]
Payment of Capital Note Rate 365
The Company may at any time on or prior to an Interest Date
elect to suspend payment of any amount of Accrued Interest (or
Unpaid Interest) or any part of such interest on the relevant
Interest Date if the Board of the Company believes on
reasonable grounds that:
(i) the Company, BPC, either Issuer, or any Guarantor has
breached, or making the payment of interest, or such
part of the interest (as the case may be), would, or
would be likely to, result in the Company, BPC,
either Issuer, or any Guarantor breaching the
solvency test set out in section 4 of the Companies
Act 1993 or any analogous provision in any other
jurisdiction; or
(ii) the Company, BPC, either Issuer, or any Guarantor has
breached, or the payment of interest, or such part of
the interest (as the case may be), would, or would be
likely to, result in the Company, BPC, either Issuer,
or any Guarantor breaching any covenant, warranty or
undertaking it has given to a Senior Creditor; or
(iii) the Company, has breached, or the payment of the
interest, or such part of the interest (as the case
may be), would, or would be likely to, result in the
Company breaching any other legal obligation.
The Company may make such election to suspend in respect of
either Tranche of Capital Notes or both in its absolute
discretion. The Company will, if it is obliged to do so
pursuant to clause 3.16 of this Deed, suspend the payment of
any amount of Accrued Interest (or Unpaid Interest) on the
relevant Interest Date.
(b) UNPAID INTEREST
All interest which is not paid on its due date (whether due to
a suspension pursuant to Condition 3.2(a) or otherwise) will,
so long as it remains unpaid, bear interest at the Interest
Rate, accruing daily and compounded on each subsequent
Interest Date. All such Unpaid Interest will fall due for
payment on the subsequent Interest Date. The Company may, at
its option and upon giving not more than 14 nor less than
seven days' notice to Noteholders, or holders of the relevant
Tranche of Capital Notes, as the case may be, (which notice
may be accompanied by a post-dated cheque), pay all or part of
such Unpaid Interest. If part only is paid, it must be paid on
a pro rata basis across all Capital Notes or the relevant
Tranche of Capital Notes, as the case may be. Unpaid Interest
relating to any Interest Period may not be paid before the
Unpaid
46
Interest relating to any earlier Interest Period has been
paid. All Unpaid Interest will become due and payable in and
upon the Commencement of Liquidation of the Company, but
subject to Clause 3 of the Deed and Condition 2.2.
(c) NOTICE TO TRUSTEE
The Company covenants with the Trustee and each Noteholder
that it will promptly notify the Trustee if the Company will
not make a payment of interest on the Capital Notes when due
in accordance with Condition 3.2(a), including if it intends
to suspend payment of any interest in accordance with that
clause.
If the Company has elected to suspend payment of interest in accordance
with this Condition, the Company is not obliged to pay that interest on
the relevant Interest Date, and BPC has covenanted in the Deed not to
pay any dividend on, or make any distribution in respect of, its shares
(or take certain other actions) while any such interest remains unpaid.
Any non-payment of interest on an Interest Date will not give rise to
any right to accelerate payment of any amount due under a Capital Note
and, in addition, if the Company has elected to suspend payment of
Accrued Interest (or Unpaid Interest) on any Interest Date, non-payment
of interest on that Interest Date does not constitute a default by the
Company for any purpose.
3.3 PAYMENTS
All payments in relation to a Capital Note may be satisfied by:
(a) POST
mailing cheques to the addresses of; or
(b) DIRECT CREDIT
direct credit to any bank account nominated in writing (prior
to the Record Date) of,
in the case of any payment of Accrued Interest in relation to
the initial Interest Period, the subscriber of the Capital
Note, and in all other cases, the Noteholder entered in the
Register on the Record Date. Such mailing or direct credit
will occur prior to 5 p.m. on the relevant Interest Date (or,
if that date is not a Business Day, the next Business Day
after that date) or other date on which payment is required to
be made.
3.4 WITHHOLDING TAX
(a) DEDUCTION FOR WITHHOLDING TAXES
Subject to Condition 3.4(b), all payments or credits to, or to
the account of, Noteholders (including payments of, and
credits in respect of, interest) will be made net of any tax
in respect thereof required by law to be withheld, deducted or
paid by the Company, except to the extent that the Company is
satisfied that the Noteholder is exempt from any such tax or
is a person in respect of whom any such withholding, deduction
or payment is not required to be made. Any Noteholder claiming
any such exemption or to be such a person must provide the
Company with such evidence as the Company may from time to
time require to satisfy itself in respect of the validity of
that claim.
(b) APPROVED ISSUER LEVY
Noteholders to whom such is relevant may in writing request
the Company to advise the basis, if any, upon which the
Company, at no cost to itself, is prepared from time to time
to deduct and pay the approved issuer levy (within the meaning
of section 86F of
47
the Stamp and Cheque Duties Act 1971) as an alternative to the
exercise by the Company of its rights as referred to in
Condition 3.4(a). The Company may make such arrangements with
those Noteholders to pay the levy as it sees fit.
(c) TAXATION INDEMNITY FROM NOTEHOLDER
If, in relation to any Capital Note, the Trustee, the Company
or BPC becomes liable to make any payment of, or on account
of, tax payable by the Noteholder on or in relation to any
Capital Notes, the Trustee, the Company and BPC are all
indemnified by the Noteholder and the personal representatives
or successor of that Noteholder (and, as concerns the Trustee,
also by the Company) in respect of any such liability, and any
moneys paid by the Trustee, the Company or BPC in respect of
any such liability may be recovered by action from such
Noteholder and the personal representatives or successor of
such Noteholder (as the case may be) as a debt due to the
Trustee, the Company or BPC, as the case may be. Nothing in
this Condition prejudices or affects any other right or remedy
of the Trustee, the Company or BPC.
4. ELECTION TO RETAIN OR REDEEM CAPITAL NOTES
4.1 ELECTION NOTICE
In relation to each Tranche, the Company must give to each holder of
Capital Notes constituting that Tranche (and send a copy to the
Trustee) not later than three Business Days after the Election Record
Date for that Tranche a notice (an ELECTION NOTICE) specifying:
(a) NEW CONDITIONS
if applicable, the New Conditions (which, for the avoidance of
doubt, may be a continuation of the then existing Conditions,
other than the Election Date); and
(b) REDEEM CAPITAL NOTES
the proportion of Capital Notes which shall be compulsorily
redeemed or purchased in accordance with Conditions 4.3(c) and
(d).
4.2 NOTEHOLDER'S ELECTION TO RETAIN OR REDEEM
Unless the Company has given notice under Condition 4.1(b) that it will
redeem or it, BPC or any of its Subsidiaries will purchase all Capital
Notes in a particular Tranche on the Election Date, each holder of
Capital Notes constituting the relevant Tranche must complete and sign
the Election Notice and return it to the Company not later than the
Notification Date and must indicate in the Election Notice, in relation
to the proportion of Capital Notes he or she holds which will not be
compulsorily redeemed or purchased by the Company, either or both of:
(a) RETAIN CAPITAL NOTES
the Capital Notes in respect of which the Noteholder accepts
the New Conditions with effect from the Election Date; and
(b) REDEEM CAPITAL NOTES
the Capital Notes in relation to which the Noteholder does not
accept the New Conditions and which, as a result, the
Noteholder wishes to have redeemed in accordance with
Condition 4.3(b) on the Election Date.
48
If, in relation to a Capital Note:
(c) NO ELECTION NOTICE RECEIVED
the Company does not receive a properly completed Election
Notice from the Noteholder on or before the Notification Date;
or
(d) NO ELECTION INDICATED
to the extent that the Company receives an Election Notice,
the Election Notice does not indicate whether or not the
Noteholder elects to request redemption of all or part of the
Capital Notes; or
(e) DENOMINATION AND MULTIPLES OF CAPITAL NOTES
to the extent that the Company receives an Election Notice,
implementation of the election made by the Noteholder would
result in him or her remaining a Noteholder of Capital Notes
with a Principal Amount of less than $5,000 per Tranche,
the Noteholder will be deemed to have accepted the New Conditions in
respect of, in the case of (c) and (e) above, all such Capital Notes
and, in the case of (d) above, such number of such Capital Notes in
respect of which no such indication has been given.
4.3 REDEMPTION (BY WAY OF PAYMENT OF CASH OR ISSUE OF ORDINARY SHARES) OR
PURCHASE ON ELECTION DATES
(a) COMPANY OPTION TO REDEEM
No later than 10 Business Days before and including the
Election Date for a Tranche of Capital Notes, the Company may
elect that either:
(i) it redeems, or that BPC or a Subsidiary of BPC
purchases, for cash; or
(ii) it redeems by BPC issuing Ordinary Shares in
accordance with Condition 4.4,
some or all of the Capital Notes of that Tranche held by a
Noteholder irrespective of any election made by that
Noteholder under Condition 4.2 (including if no election is
made as contemplated by Condition 4.2(c) or (d)) by giving
notice in writing of such election to Noteholders of the
relevant Tranche.
(b) REDEMPTION OR PURCHASE FOR CASH
If the Company elects that it will redeem, or that BPC or a
Subsidiary of BPC will purchase, for cash some or all of the
Capital Notes in a particular Tranche, the Company must
promptly notify Noteholders of that Tranche that such
redemption or purchase of the Capital Notes for cash will
occur on the Election Date, and such redemption or purchase
for cash will be at the price calculated in accordance with
Condition 4.3(d).
(c) PART REDEMPTION OR PURCHASE
(i) If the Company elects to exercise its rights under
Condition 4.1 to redeem or purchase some but not all
of the Capital Notes in a particular Tranche then any
such redemption or purchase must be made on a pro
rata basis across all Capital Notes in the relevant
Tranche.
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(ii) If following the receipt of Election Notices in
relation to Capital Notes of a particular Tranche
pursuant to Condition 4.2, the Company elects to
exercise its right under Condition 4.3(a) to redeem
or purchase, or to redeem by procuring that BPC issue
Ordinary Shares, some but not all of the Capital
Notes, then the particular Capital Notes redeemed or
purchased shall be determined on the following basis:
(A) if as a result of exercising its right to
redeem some of the Capital Notes by BPC
issuing Ordinary Shares, the Company intends
to redeem or purchase for cash Capital Notes
having a Principal Amount which, in
aggregate, is equal to or less than the
aggregate Principal Amount of Capital Notes
which Noteholders elected to redeem under
Condition 4.2(b), such redemption or
purchase shall be made by:
(i) if the Company elects that some of
the Capital Notes are to be
redeemed or purchased for cash, by
redeeming for cash on a pro rata
basis across those Capital Notes
which Noteholders elected to redeem
under Condition 4.2(b);
(ii) redeeming the balance of the
Capital Notes which Noteholders
elected to redeem under Condition
4.2(b) by BPC issuing Ordinary
Shares; and
(iii) if further Capital Notes are to be
redeemed by the issue of Ordinary
Shares, redeeming on a pro rata
basis across remaining Noteholders;
and
(B) if the Company elects to redeem or purchase
for cash Capital Notes having a Principal
Amount which, in aggregate, exceeds the
aggregate Principal Amount of Capital Notes
which Noteholders elected to redeem under
Condition 4.2(b), such redemption or
purchase shall be made by first, redeeming
all Capital Notes which Noteholders elected
to redeem under Condition 4.2(b) and,
secondly, redeeming on a pro rata basis
across all remaining Capital Notes of the
relevant Tranche.
In making any redemption or purchase, the Company shall be
entitled to adjust the number of Capital Notes to be redeemed
in relation to any particular Noteholder to ensure each
Noteholder maintains a Minimum Holding of Capital Notes in the
relevant Tranche.
(d) CALCULATION OF REDEMPTION OR PURCHASE AMOUNT
For the purposes of Conditions 4.1, 4.3(b) and 4.5, the
redemption or purchase price, as the case may be, payable for
the Capital Notes will be the amount equal to the aggregate
of:
(i) the Principal Amount of the Capital Notes to be
redeemed or purchased; and
(ii) the Accrued Interest and Unpaid Interest in respect
of such Capital Notes.
(e) REDEMPTION AT REQUEST OF NOTEHOLDER
Subject to Condition 4.3(a), the Company will redeem, or
procure that BPC or a Subsidiary of BPC will purchase, for
cash all Capital Notes in relation to which a Noteholder has
requested redemption under Condition 4.2(b). Such redemption
or purchase for cash will occur on the Election Date and at
the price calculated in accordance with Condition 4.3 (d).
50
4.4 REDEMPTION OF CAPITAL NOTES BY THE ISSUE OF ORDINARY SHARES
(a) BPC undertakes to effect redemption of those Capital Notes of
the relevant Tranche which were the subject of a notice under
Condition 4.3(a)(ii), by issuing to the relevant Noteholder on
the Election Date such number (fractions being rounded down to
the nearest whole number) of Ordinary Shares as have an
aggregate Value equal to the aggregate as at the Election Date
(less any withholdings or deductions required by law) of the
Principal Amounts of, and Accrued Interest and Unpaid Interest
on, any Capital Notes which are held by the Noteholder which
the Company has elected to redeem by BPC issuing Ordinary
Shares.
In these Conditions:
(i) VALUE means the New Zealand Dollar Equivalent of the
amount which is determined by the Company to be 95
per cent. of the weighted average sale prices of an
Ordinary Share of BPC sold on the Australian Stock
Exchange during the period of 10 Business Days
immediately prior to the Election Date on which
Ordinary Shares were bought and sold (and adjusted to
eliminate the effect of any dividend entitlement,
share buyback, consolidation or similar transaction
reflected in such price to which the Noteholder would
not be entitled), or, if no Ordinary Share of BPC was
sold on the Australian Stock Exchange during that
period, the last sale price of an Ordinary Share of
BPC sold on the Australian Stock Exchange prior to
such period.
(ii) NEW ZEALAND DOLLAR EQUIVALENT means at any date, and
in relation to an amount denominated in Australian
Dollars, the amount in New Zealand Dollars which is
equal to that amount calculated at the spot rate of
exchange for those currencies quoted to the Company
by its bankers for value on the relevant date.
Each Ordinary Share issued in accordance with this Condition
will rank pari passu with the Ordinary Shares of BPC then on
issue, except that such Ordinary Shares will not carry any
rights to any dividend or other distribution declared or paid
or made on such Ordinary Shares by reference to a record date
prior to the Election Date. Letters of allotment or
certificates in respect of Ordinary Shares so issued will be
posted to the relevant Noteholders on, or as soon as
practicable after, the Election Date.
(b) ALTERNATIVES TO REDEMPTION BY THE ISSUE OF ORDINARY SHARES
If, at any time, BPC is unable lawfully to issue Ordinary
Shares to Noteholders in redemption of Capital Notes in
accordance with these Conditions, or the Ordinary Shares of
BPC cease to be eligible to be quoted on the Australian Stock
Exchange, the Capital Notes will be unaffected and continue to
exist on their then terms (including as to Interest Rate)
until the Election Date. If on the Election Record Date, BPC
remains unable to issue Ordinary Shares, or its Ordinary
Shares remain ineligible to be quoted, and the Trustee is not
satisfied that such Ordinary Shares will become eligible to be
so quoted within 30 days, all rights of redemption by way of
the issue of Ordinary Shares will be suspended and the Company
is to elect (such election to be notified to Noteholders
within the same time periods applicable to Election Notices
under Condition 4.1), whether the Capital Notes or any
proportion of the Capital Notes will be compulsorily redeemed
in accordance with Condition 4.3 or be deemed to be rolled
over on the following terms:
(i) the Interest Rate to apply to the Capital Notes from
the Election Date to the Replacement Election Date
(as determined in Condition 4.4(b)(ii)) will be the
Swap Rate as at the Election Date for a period of two
years plus a margin of 5 per cent per annum; and
(ii) the Election Date will be replaced by a new Election
Date selected by the Company (which must be a date
which is not more than two years from the
51
Election Date (or if that date is not a Business Day,
the next Business Day after that date) (the
Replacement Election Date)).
If, on the Replacement Election Date, BPC is unable lawfully
to issue Ordinary Shares to Noteholders in redemption of
Capital Notes in accordance with these Conditions or the
Ordinary Shares of BPC cease to be eligible to be quoted on
the Australian Stock Exchange, this Condition 4.4(b) will
apply again with the necessary modifications.
4.5 COMPULSORY REDEMPTION
If as a result of a general offer to purchase made to some or all
holders of the Ordinary Shares, any person, whether acting alone or in
concert with any other person:
(a) is, or is entitled to become, the holder (absolutely or
beneficially and whether directly or indirectly) of all
Ordinary Shares; or
(b) has or will have the right to cast all votes on a poll at a
general meeting of BPC on a matter on which holders of
Ordinary Shares are entitled to vote,
but no offer is made to Noteholders to purchase all of the Capital
Notes of the relevant Tranche, then the Company must prior to the next
Election Date for a Tranche, give notice to all Noteholders of the
relevant Tranche within the same time period applicable to Election
Notices under Condition 4.1. The Company, BPC or any of its
Subsidiaries shall offer to redeem or purchase all Capital Notes of the
relevant Tranche on that next Election Date (and such redemption or
purchase must occur on that Election Date at the price calculated in
accordance with Condition 4.3(d)). The Company may also, in addition,
offer New Conditions in respect of the relevant Capital Notes to apply
as from that next Election Date. If New Conditions are offered, each
Noteholder of the relevant Tranche must then make an election within
the same time period applicable to Election Notices delivered under
Condition 4.1. If no New Conditions are offered or a Noteholder elects
that the Company redeems or purchases (or procures the purchase of) his
or her Capital Notes, such redemption or purchase must occur on that
Election Date at the price calculated in accordance with Condition
4.3(d). If a Noteholder elects to accept the New Conditions, those New
Conditions will apply from the next Election Date. If New Conditions
are offered and a Noteholder does not make an election, the Noteholder
will be deemed to have accepted the New Conditions in respect of such
number of Capital Notes in respect of which no election is made.
4.6 SHARE REGISTER
All Ordinary Shares issued upon the redemption of Capital Notes will be
validly issued and be entered on the Ordinary Share register of BPC.
4.7 SURRENDER OF HOLDING CERTIFICATES ON REDEMPTION BY THE ISSUE OF
ORDINARY SHARES
(a) REDEMPTION BY THE ISSUE OF ORDINARY SHARES AND NEW
CERTIFICATES
Every Noteholder must, if and to the extent so required by the
Company as a condition precedent to:
(i) the issue of Ordinary Shares in redemption of Capital
Notes, surrender the Holding Certificate (if any) and
provide the holder and FASTER identification numbers
in respect of such Capital Notes to the Company; and
(ii) the issue of a new certificate in accordance with
Clause 2.6 of the Deed, surrender the existing
Holding Certificate (if any) and, if necessary,
provide the holder and FASTER identification numbers
to the Company or the Registrar.
52
(b) PURCHASE OR REDEMPTION (BY WAY OF PAYMENT OF CASH OR ISSUE OF
ORDINARY SHARES)
Every Noteholder must immediately surrender to the Company, or
the Registrar, the Holding Certificate (if any) and provide
the holder and FASTER identification numbers in respect of
such Capital Notes to be purchased or redeemed pursuant to
Conditions 4.3 to 4.5.
(c) CANCELLATION OF HOLDING CERTIFICATE NOT SURRENDERED
The Registrar is entitled, at the option of the Company, to
cancel, or to enter the Company in the Register as the
Noteholder of, and issue a substitute Holding Certificate
(together with holder and FASTER identification numbers) for,
any Capital Notes relating to the Holding Certificate (if any)
not so surrendered.
4.8 CAPITAL NOTES HELD BY SUBSIDIARIES
Notwithstanding these Conditions, this Condition 4 (other than
Condition 4.9) will not apply to any Capital Note already held by BPC
or a wholly owned Subsidiary of BPC on the Notification Date.
4.9 CANCELLATION ON REDEMPTION (BY WAY OF PAYMENT OF CASH OR ISSUE OF
ORDINARY SHARES) OR PURCHASE
Each Capital Note which is redeemed by the issue of an Ordinary Share
or otherwise redeemed in accordance with the Conditions is and will be
deemed to be cancelled, and neither the Company, BPC, nor the Trustee
will have any further liabilities or obligations in respect of that
Capital Note or the relevant Noteholder. Each of BPC and its
Subsidiaries may at any time purchase a Capital Note for its own
account. Each Capital Note so purchased by BPC or a wholly owned
Subsidiary of BPC will be cancelled and neither the Company, BPC nor
the Trustee will have any further liabilities or obligations in respect
of that Capital Note or the relevant Noteholder.
4.10 CALL OPTION
The Company may at any time after the first anniversary of the Opening
Date upon giving Noteholders 45 days' written notice, require
redemption of all or any portion of all of the Capital Notes. If the
Company proposes to redeem any portion of the Capital Notes, such
redemption must be made on a pro rata basis across all Noteholders. The
Company further agrees that if a pro-rata redemption would result in a
Noteholder holding:
(a) less than a Minimum Holding in relation to a Tranche of
Capital Notes, then the Company will redeem all Capital Notes
of the relevant Tranche held by that Noteholder; or
(b) Capital Notes of a Tranche in a Principal Amount other than
$5000 and integral multiples of $1000 thereafter, the Company
shall redeem such number of Capital Notes of the relevant
Tranche which will result in the Noteholder's holding being
reduced to a Principal Amount of the nearest of $5000 and
integral multiples of $1000 thereafter; and,
in each case such redemptions shall be made at the same time, and at
the same price, at which the Company exercises its rights under this
call option.
If the Company exercises its right to redeem all or any portion of the
Capital Notes pursuant to this Condition, the redemption price paid to
Noteholders for each Capital Note shall be determined as follows:
53
(c) in relation to Five Year Notes:
(i) if redeemed prior to the second anniversary of the
Opening Date, 103% of the Principal Amount of the
Capital Note and all Accrued Interest and Unpaid
Interest in relation to that Capital Note determined
at the redemption date;
(ii) if redeemed prior to the third anniversary but on or
after the second anniversary of the Opening Date,
102% of the Principal Amount of the Capital Note and
all Accrued Interest and Unpaid Interest in relation
to that Capital Note determined at the redemption
date;
(iii) if redeemed prior to the fourth anniversary but on or
after the third anniversary of the Opening Date, 101%
of the Principal Amount of the Capital Note and all
Accrued Interest and Unpaid Interest in relation to
that Capital Note determined at the redemption date;
(iv) if redeemed prior to 15 December 2008 but on or after
the fourth anniversary of the Opening Date, 100% of
the Principal Amount of the Capital Note and all
Accrued Interest and Unpaid Interest in relation to
that Capital Note determined at the redemption date;
(d) in relation to Eight Year Notes:
(i) if redeemed prior to the second anniversary of the
Opening Date, 106% of the Principal Amount of the
Capital Note and all Accrued Interest and Unpaid
Interest in relation to that Capital Note determined
at the redemption date;
(ii) if redeemed prior to the third anniversary but on or
after the second anniversary of the Opening Date,
105% of the Principal Amount of the Capital Note and
all Accrued Interest and Unpaid Interest in relation
to that Capital Note determined at the redemption
date;
(iii) if redeemed prior to the fourth anniversary but on or
after the third anniversary of the Opening Date, 104%
of the Principal Amount of the Capital Note and all
Accrued Interest and Unpaid Interest in relation to
that Capital Note determined at the redemption date;
(iv) if redeemed prior to the fifth anniversary but on or
after the fourth anniversary of the Opening Date,
103% of the Principal Amount of the Capital Note and
all Accrued Interest and Unpaid Interest in relation
to that Capital Note determined at the redemption
date;
(v) if redeemed prior to the sixth anniversary but on or
after the fifth anniversary of the Opening Date, 102%
of the Principal Amount of the Capital Note and all
Accrued Interest and Unpaid Interest in relation to
that Capital Note determined at the redemption date;
(vi) if redeemed prior to the seventh anniversary but on
or after the sixth anniversary of the Opening Date,
101% of the Principal Amount of the Capital Note and
all Accrued Interest and Unpaid Interest in relation
to that Capital Note determined at the redemption
date; and
(vii) if redeemed prior to 15 November 2011 but on or after
the seventh anniversary of the Opening Date, 100% of
the Principal Amount of the Capital Note and all
Accrued Interest and Unpaid Interest in relation to
that Capital Note determined at the redemption date.
54
5. TRANSFERS AND REPLACEMENTS OF CAPITAL NOTES
5.1 TRANSFERS
Capital Notes may be transferred in minimum Principal Amounts of $1,000
per Tranche or such lesser amount as the Company may from time to time
permit subject to this Condition 5, provided that, following any such
transfer, the transferee holds Five Year Capital Notes and Eight Year
Capital Notes, in each case with a minimum Principal Amount of $5,000
(the MINIMUM HOLDING).
5.2 FORM OF TRANSFER
Subject to these Conditions and the Deed, a Noteholder may transfer any
Capital Note held by him or her by:
(a) WRITTEN INSTRUMENT
a written instrument of transfer in the usual or common form
signed by the transferor and the transferee; or
(b) FASTER SYSTEM
means of the FASTER system operated by the New Zealand Stock
Exchange; or
(c) OTHER METHOD
any other method of transfer of marketable securities which is
not contrary to any law and which may be operated in
accordance with any Listing Rules, and which is approved by
the Company.
5.3 REGISTRATION PROCESS
(a) TRANSFERS OTHER THAN THROUGH FASTER
The following provisions apply to instruments of transfer
other than any transfer under Condition 5.2(b):
(i) the instrument of transfer must be left at the
Registry accompanied by the Holding Certificate (if
any) in respect of the Capital Notes to be
transferred or such other evidence as the Registrar
or the Trustee requires to prove the transferor's
title to, or right to transfer, the Capital Notes
including the relevant holder and FASTER
identification number, together with evidence that
any applicable duties and taxes required to be paid
by any relevant legislation in order for the Capital
Notes to be transferred have been paid; and
(ii) on registration of a transfer of a Capital Note, the
Holding Certificate (if any) evidencing that Capital
Note will be cancelled and replaced.
(b) FEES
The Company will direct the Registrar not to charge a fee to
any Noteholder for:
(i) registering transfers of Capital Notes; or
(ii) splitting Holding Certificates in relation to Capital
Notes; or
55
(iii) issuing Holding Certificates (where bound to do so)
and transmission receipts in relation to Capital
Notes; or
(iv) using holder or FASTER identification numbers in
relation to Noteholders; or
(v) effecting conversions between sub-registers (if any)
of the Register; or
(vi) noting transfer forms in relation to Capital Notes,
except in the case where Holding Certificates, or any
information necessary to effect a transfer of Capital Notes
are issued to replace a lost or destroyed Holding Certificate.
5.4 TRANSFERS MUST BE REGISTERED
Subject to this Condition 5, the Company must direct the Registrar not
to refuse to register or fail to register or give effect to, a transfer
of Capital Notes.
5.5 REFUSAL TO REGISTER TRANSFERS
The Company may direct the Registrar to refuse to register any transfer
of Capital Notes where these Conditions, the Deed, any Listing Rules or
any applicable legislation permits, or requires the Company to do so.
5.6 NOTICE OF REFUSAL TO REGISTER
Where registration of a transfer of Capital Notes is refused under
Condition 5.5, the Company must direct the Registrar to give written
notice of the refusal and the precise reasons for the refusal to the
party lodging the transfer, if any, within five Business Days after the
date on which the transfer was lodged. The failure to give such a
notice will not invalidate the decision not to register.
5.7 RETENTION OF TRANSFERS
The Company is to direct the Registrar to retain all instruments of
transfer of Capital Notes which are registered, but any instrument of
transfer of Capital Notes the registration of which was declined or
refused (except on the ground of suspected fraud) is to be returned to
the party lodging the transfer.
5.8 POWERS OF ATTORNEY
Any power of attorney granted by a Noteholder empowering the donee to
deal with, or transfer Capital Notes, which is lodged, produced or
exhibited to the Registrar will be deemed to continue and remain in
full force and effect as between the Company, the Trustee, the
Registrar and the grantor of that power, and may be acted on, until
express notice in writing that it has been revoked or notice of the
death of the grantor has been received at the Registry.
5.9 TRANSMISSION BY OPERATION OF LAW
Any person becoming entitled to any Capital Note by operation of law
(including the death or bankruptcy of any Noteholder) may, upon
producing such evidence of entitlement as is acceptable to the Company,
obtain registration as the Noteholder of such Capital Note or execute a
transfer of such Capital Note. This provision includes any case where a
person becomes entitled as a survivor or persons registered as joint
Noteholders.
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5.10 REPLACEMENT OF HOLDING CERTIFICATES
If any Holding Certificate is lost, stolen, mutilated, defaced or
destroyed, it may be replaced at the office of the Registrar upon
payment by the claimant of the fees and expenses incurred in connection
with such replacement and on such terms as to evidence and indemnity as
the Company and the Registrar may require. Mutilated or defaced Holding
Certificates must be surrendered before replacements will be issued.
The Registrar may decline to register any transfer unless the relevant
Holding Certificate is produced, but may in its discretion dispense
with production of the Holding Certificate subject to production
instead of such indemnity or declaration of loss as it may require.
5.11 NOTICES
All notices given by Noteholders in accordance with these Conditions
will be irrevocable.
5.12 SALE OF LESS THAN MINIMUM HOLDING
The board of the Company may at any time give notice to any Noteholder
holding less than a Minimum Holding of Capital Notes that if at the
expiration of three months after the date the notice is given the
Noteholder still holds Capital Notes which are less than a Minimum
Holding, the Board may exercise the power of sale of those Capital
Notes set out in this Condition 5.12. If that power of sale becomes
exercisable:
(a) the Board may arrange for the sale of those Capital Notes
through the New Zealand Stock Exchange or in some other manner
approved by the New Zealand Stock Exchange;
(b) the Noteholder shall be deemed to have authorised the Company
to act on the Noteholder's behalf and to execute all necessary
documents for the purposes of that sale;
(c) the Company shall account to the Noteholder for the net
proceeds of sale of the Capital Notes (after deduction of
reasonable sale expenses), which shall be held on trust for
the Noteholder by the Company and paid to the Noteholder on
surrender of any Holding Certificates for the Capital Notes
sold; and
(d) the title of a purchaser of any notes sold pursuant to this
Condition 5.12 shall not be affected by any irregularity or
invalidity in the exercise of the power of sale or the sale
itself.
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SCHEDULE 3: MEETING OF NOTEHOLDERS
1. CONVENING MEETINGS
(a) REQUEST FOR MEETING
The Company or the Trustee at any time may, and the Company
upon a request in writing by the Trustee or by Noteholders
holding together not less than 10 per cent. of the aggregate
Principal Amount of the Capital Notes must, convene a meeting
of the Noteholders. Whenever the Company or the Trustee
convenes any such meeting it must give notice to the other, to
the New Zealand Stock Exchange (at any time while the Capital
Notes are quoted) and to the Noteholders.
(b) PLACE FOR MEETINGS
Meetings will be held in Auckland, or such other place as the
Trustee approves.
(c) NATURE OF BUSINESS
Any request by Noteholders holding together not less than 10
per cent. of the aggregate Principal Amount of the Capital
Notes to convene a meeting must state the nature of the
business proposed to be dealt with at the meeting.
2. NOTICE TO NOTEHOLDERS
Notice must be given to every Noteholder entered in the Register at the
close of business 14 days prior to the date of despatch of the notice
by ordinary post to the address last entered in the Register.
3. NOTICE OF MEETING
(a) NOTICE PERIOD
At least 14 days' notice (excluding the day on which the
notice is given and including the day on which the meeting is
held) specifying the day, time and place of meeting must be
given. Such notice need not contain the agenda of the meeting,
nor specify the terms of the resolutions to be proposed
(except in the case of a resolution to be passed as an
Extraordinary Resolution where the text of the proposed
resolution must be set out), but must indicate the general
nature of the business to be transacted at the meeting.
(b) WAIVER OF NOTICE PERIOD
Notwithstanding that it is called by shorter notice than that
specified in this clause, a meeting will be deemed to have
been duly called if it is so agreed by Noteholders having a
right to attend and vote at the meeting, and together holding
not less than 75 per cent. of the aggregate Principal Amount
of the Capital Notes concerned (unless otherwise required by
law, including clause 3 of the fifth schedule to the
Securities Regulations 1983).
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(c) ACCIDENTAL OMISSION
The accidental omission to give notice to, or the non-receipt
of notice by, any person entitled to notice (including the New
Zealand Stock Exchange, but not the Company or the Trustee)
will not invalidate the proceedings of any meeting.
4. CHAIRPERSON
A person (who may, but need not, be a Noteholder) nominated in writing
by the Trustee will be entitled to chair every such meeting, but if no
such nomination is made, or if at any meeting the person nominated is
not present within 15 minutes after the time appointed for the holding
of such meeting, the Noteholders present must choose one of their
number to chair the meeting.
5. QUORUM
At any such meeting two or more Noteholders present in person or by
proxy and holding or representing not less than 25 per cent. of the
aggregate Principal Amount of the Capital Notes will form a quorum for
the transaction of business, and no business (other than the choosing
of chairperson) may be transacted at any meeting unless the requisite
quorum is present at the commencement of business.
6. LACK OF QUORUM AND ADJOURNMENT
(a) ADJOURNMENT FOR LACK OF QUORUM
If, within 30 minutes after the time appointed for any such
meeting, a quorum is not present the meeting will stand
adjourned for such period, not being less than 14 days, as may
be appointed by the Chairperson. At least seven days' notice
(excluding the day in which notice is given and including the
day in which the adjourned meeting is held) specifying the
day, time and place of the adjourned meeting must be given. At
such adjourned meeting two or more persons present in person
or by proxy holding Capital Notes (whatever the number of
Capital Notes so held or represented) will form a quorum and
have the power to pass any resolution and to decide upon all
matters which could properly have been dealt with at the
meeting from which the adjournment took place (including the
passing of an Extraordinary Resolution) had a quorum been
present at such meeting.
(b) BUSINESS AT ADJOURNED MEETING
In addition to paragraph (a) above, the Chairperson may with
the consent of (and will if directed by) any meeting adjourn
the same from time to time and from place to place, but no
business may be transacted at any adjourned meeting except
business which might lawfully have been transacted at the
meeting from which the adjournment took place.
(c) NOTICE OF ADJOURNED MEETING
It is not necessary to give notice of any adjourned meeting
except that notice of any meeting adjourned through lack of a
quorum must be given in the same manner as notice of an
original meeting (except in relation to the period of notice)
and such notice must state the quorum required at such
adjourned meeting.
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7. ATTENDANCE AND VOTING AT MEETINGS
(a) ATTENDANCE AT MEETINGS
Other than the Trustee, the Company and their representatives
(who may attend but may not vote (except in the case of the
Trustee where it is acting on behalf of a Noteholder)), no
person will be entitled to attend and vote at any meeting of
the Noteholders or to join with others in requesting the
convening of any such meeting unless he or she is a person
registered as Noteholder on the Register or is a
representative of such person.
In this clause, a representative of a Noteholder means:
(i) in the case of a Noteholder being an individual a
person appointed by an instrument by way of proxy or
by power of attorney (in either case, in a form
satisfactory to the Trustee);
(ii) in the case of a Noteholder being a corporation
either:
(A) a person appointed by an instrument by way
of proxy or by power of attorney; or
(B) a person authorised pursuant to clause 10 of
the First Schedule to the Companies Act 1993
or in the case of a corporation sole a
person authorised pursuant to its
constitution; or
(iii) a person upon whom the ownership of a Noteholder's
Capital Note has devolved by reason of his being a
legal representative or an assignee in bankruptcy or
liquidator of the Noteholder, or such person's
representative appointed or authorised under (i) or
(ii) above.
(b) VOTING AT MEETINGS
At a meeting, the persons registered as Noteholders in the
Register at the Proxy Closing Time will be exclusively
entitled to vote in respect of Capital Notes recorded in their
name, in person or by representative. For the purpose of
establishing voting entitlements at a meeting, the Register
will be closed as of close of business on the Business Day
immediately preceding the day on which the Proxy Closing Time
falls and will remain closed until after the relevant meeting
has been closed or adjourned.
(c) NOTEHOLDER'S REPRESENTATIONS
The Trustee, or any of its officers or employees, may be
appointed a representative of a Noteholder.
(d) TRUSTEE MUST ATTEND MEETINGS
To be validly constituted, the Trustee must be present at
every meeting convened in accordance with this Schedule.
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8. PROXIES
(a) IN WRITING
The instrument appointing a proxy must be in writing signed by
the appointor or the appointor's attorney, or if the appointor
is a corporation either under seal or signed on its behalf by
an officer, attorney, director or other person who has actual
authority to appoint a proxy on behalf of such corporation.
(b) RIGHT TO SPEAK
A person appointed to act as a proxy need not be a Noteholder
and a proxy of a Noteholder has the right to speak at the
meeting.
(c) INSTRUMENT OF APPOINTMENT
The instrument appointing a proxy and the power of attorney or
other authority (if any) under which it is signed or a copy of
such power or authority certified in such manner as the
Trustee approves must be deposited at such place as (or a
facsimile copy of such proxy and power of attorney must be
received at such facsimile number as) the Trustee or the
Company with the approval of the Trustee may in the notice
convening the meeting direct or (if no such place is
appointed) at the registered office of the Company not later
than the Proxy Closing Time.
A proxy form shall be sent with each notice of meeting of
Noteholders and:
(i) shall, so far as the subject matter and form of the
resolutions reasonably permit provide for 2-way
voting on all resolutions, enabling the Noteholders
to instruct the proxy as to the casting of the vote;
and
(ii) shall not be sent with any name or office (e.g.
chairperson or directors of the Company) filled in as
proxy holders. So far as is practicable, resolutions
shall be formed in a manner which facilitates 2-way
voting instructions for proxy holders.
(d) FORM OF INSTRUMENT OF APPOINTMENT
An instrument of proxy may be in any usual or common form or
in such other form as the Trustee approves and may make
provision for directions to be given by the appointor to vote
in favour of or against any proposed resolution.
(e) VALIDITY OF PROXY
A proxy will, unless it states otherwise, be valid for any
adjournment of the meeting as well as for the meeting to which
it relates and need not be witnessed. Notwithstanding any
provision contained in an instrument of proxy, no instrument
of proxy will be valid after the expiration of 12 months from
the date of its execution, although this provision does not
apply to the appointment of an attorney or representative
otherwise than by an instrument of proxy.
(f) APPOINTMENT OF CHAIRPERSON
An instrument of proxy in favour of:
(i) the chairperson of the Company; or
61
(ii) the chairperson of the meeting, or "the Chairperson",
(however expressed) will be valid and effectual as though it
were in favour of a named person and will in the case of
paragraph (i) above constitute the person holding the office
of the chairperson of the Company and in the case of paragraph
(ii) above the person who chairs the meeting for which the
proxy is used (whether an adjournment or not) the lawful proxy
of the appointor.
9. RIGHTS OF REPRESENTATIVES
A representative of a Noteholder will have the right to speak at the
meeting and to demand or join in demanding a poll and will (except and
to the extent to which the representative is specifically directed to
vote for or against any proposal) have power generally to act at the
meeting for the Noteholder concerned.
10. VOTING PROCEDURE AND POLLS
(a) VOTING ON RESOLUTIONS
A resolution put to the vote of a meeting will be decided on a
show of hands unless a poll is (before or on the declaration
of the result of the show of hands) demanded by the
chairperson or the Trustee or by one or more Noteholders
holding or representing not less than five per cent. of the
aggregate Principal Amount of the Capital Notes. Unless a poll
is so demanded a declaration by the chairperson that a
resolution has been carried or carried unanimously or by a
particular majority or lost will be conclusive evidence of the
fact without proof of the number or proportion of the votes
recorded in favour of or against such resolution.
(b) NOTEHOLDERS' ENTITLEMENT TO VOTES
On a show of hands each person present at the meeting and
entitled to vote (whether personally, by proxy or as a
representative) will have one vote only. On a poll every
Noteholder who is present in person, by proxy or by a
representative will have one vote for each dollar of the
Principal Amount of every Capital Note held by the Noteholder.
(c) CONDUCT OF POLL
If a poll is required, it will be taken in such manner as the
chairperson may direct and the result of such poll will be
deemed to be the resolution of the meeting at which the poll
was required.
(d) CASTING VOTE
In the case of an equality of votes whether on a show of hands
or on a poll, the chairperson of the meeting at which the show
of hands takes place or at which the poll is demanded will be
entitled to a casting vote in addition to the votes (if any)
to which the chairperson may be entitled as a Noteholder or on
behalf of Noteholders.
(e) TIMING OF POLL
A poll demanded on the election of a chairperson or on a
question of adjournment must be taken forthwith. A poll
demanded on any other question must be taken either
immediately or at such time (not being more than 30 days from
the date of the meeting) and place as the chairperson may
direct. The result of such poll will be
62
deemed to be the resolution of the meeting at which the poll
was demanded. No notice need be given of a poll.
(f) CONTINUANCE OF MEETING FOLLOWING POLL
The demand for a poll will not prevent the continuance of a
meeting for the transaction of business other than the
question on which the poll has been demanded.
(g) VOTING ON POLL
On a poll, votes may be given either personally or by
representative, and a person entitled to more than one vote
need not use all such votes or cast all such votes in the same
way.
(h) JOINT NOTEHOLDERS
In the case of joint Noteholders, the vote of the senior who
tenders a vote, whether in person or by representative, will
be accepted to the exclusion of the votes of the other joint
Noteholders, and for this purpose seniority will be determined
by the order in which the names stand in the Register in
respect of the joint holding.
(i) VALIDITY OF VOTES CAST
A vote given in accordance with the terms of an instrument of
proxy or power of attorney or other form will be valid
notwithstanding the previous death, insanity or (in the case
of a corporation) liquidation of the principal or revocation
of the proxy or power of attorney or other form of appointment
or the authority under which the proxy was executed or the
transfer of the Capital Notes in respect of which the vote is
given provided that no intimation in writing of such death,
insanity, liquidation, revocation or transfer is received by
the Trustee or the Company at its registered office before the
commencement of the meeting or adjourned meeting at which the
proxy is used.
(j) RESOLUTION BINDING ON NOTEHOLDERS
A resolution passed at a meeting of the Noteholders duly
convened and held in accordance with this Deed will be binding
upon all the Noteholders whether present or not at such
meeting.
11. EXTRAORDINARY RESOLUTIONS
A meeting of the Noteholders, in addition to the powers expressed in
this Deed, but without prejudice to any powers conferred on the Trustee
by this Deed, has the following powers exercisable by Extraordinary
Resolution namely:
(a) SANCTION PROPOSAL IN RESPECT OF THE DEED OR CAPITAL NOTES
to sanction, either unconditionally or conditionally, any
proposal by the Company for any modification, abrogation,
novation, variation of, or arrangement in respect of, the
rights of the Noteholders against it arising under this Deed,
the Capital Notes or any Deed of Guarantee;
63
(b) ASSENT TO MODIFICATION OF HOLDING CERTIFICATES, THE CONDITIONS
OR THE DEED
to assent to any proposal for modification of the Holding
Certificates (if any), the Conditions, this Deed or any Deed
of Guarantee which is proposed by the Company;
(c) AUTHORISE EXECUTION OF DOCUMENTS
to authorise any person or persons to concur in and execute
all such documents and do all such acts and things as may be
necessary to carry out and give effect to any Extraordinary
Resolution;
(d) DISCHARGE LIABILITY
subject to section 62 of the Securities Act 1978, to discharge
or exonerate any person or persons from any liability in
respect of any act or omission for which such person or
persons may have become responsible under this Deed, the
Capital Notes or any Deed of Guarantee;
(e) AUTHORISE, DIRECT OR SANCTION
to give any authority, direction or sanction or approval which
under the provisions of this Deed, the Capital Notes or any
Deed of Guarantee is required to be given by Extraordinary
Resolution;
(f) REMOVE TRUSTEE
to request the removal of the Trustee and to approve the
appointment of a new trustee;
(g) APPOINT COMMITTEE OF NOTEHOLDERS
to appoint any persons (whether or not Noteholders) as a
committee or committees to represent the interest of the
Noteholders and to confer upon such committee or committees
any powers or discretions which the Noteholders could
themselves exercise by Extraordinary Resolution; and
(h) DIRECT OR REQUEST TRUSTEE
to direct or request the Trustee to take such action or do
such things as the Trustee may lawfully do under this Deed or
any Deed of Guarantee and to authorise the Trustee to deduct
its costs and expenses from any amount received by the Trustee
on account of Noteholders, to the extent such additional
authority may be required.
An Extraordinary Resolution or ordinary resolution passed in accordance
with this Schedule 3 will be binding upon all the Noteholders and each
of the Noteholders and the Trustee (subject to the provisions of the
Trustee's indemnity contained in this Deed) will be bound to give
effect to that resolution accordingly and the passing of any such
Extraordinary Resolution or ordinary resolution will, as between the
Noteholders and the Trustee, be conclusive evidence that the
circumstances justify the passing thereof.
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12. MINUTES
Minutes of all resolutions and proceedings at every meeting of
Noteholders must be made and duly entered in records to be from time to
time maintained for that purpose at the expense of the Company by the
Trustee. Any such minutes signed by the chairperson of the meeting at
which such resolutions were passed or proceedings transacted, or by the
chairperson of the next succeeding meeting of the Noteholders, will be
prima facie evidence of the matters recorded in them. Until the
contrary is proved, every meeting whose proceedings have been so
minuted and signed will be deemed to have been duly held and convened
and all resolutions passed or proceedings transacted to have been duly
passed and transacted. Copies of all minutes must be given by the
Trustee to the Company as soon as possible after each meeting.
13. CLASS MEETINGS
If and whenever the Company has issued and has outstanding any Capital
Notes which are not identical (other than for Interest Rates, Interest
Dates and Election Dates) and do not form one single series (and for
this purpose the Five Year Notes and Eight Year Notes may, but need
not, form a separate series) then those Capital Notes which are in all
respects so identical will be deemed to constitute a separate series of
the Capital Notes and the foregoing provisions of this Schedule will
have effect subject to the following modifications:
(a) MEETINGS OF SEPARATE CLASS OF NOTEHOLDERS
a resolution which in the opinion of the Trustee affects one
series only of the Capital Notes will be deemed to have been
duly passed if passed at a separate meeting of the Noteholders
of Capital Notes of that series;
(b) SINGLE MEETING OF NOTEHOLDERS
a resolution which in the opinion of the Trustee affects more
than one series of the Capital Notes, but does not give rise
to a conflict of interest between the Noteholders of Capital
Notes of any of the series so affected will be deemed to have
been duly passed if passed at a single meeting of the
Noteholders of the Capital Notes of all series so affected;
(c) SEPARATE MEETINGS OF EACH CLASS OF NOTEHOLDERS
a resolution which in the opinion of the Trustee affects more
than one series of the Capital Notes and gives or may give
rise to a conflict of interest between the Noteholders of the
Capital Notes of one series or group of series so affected and
the Noteholders of the Capital Notes of another series or
group so affected will be deemed to have been duly passed only
if in lieu of being passed at a single meeting of the
Noteholders of the Capital Notes of all such series it will be
duly passed at separate meetings of the Noteholders of the
Capital Notes of each series or group of series so affected;
and
(d) PROCEDURE AT MEETINGS
to all such meetings under this clause all the preceding
provisions of this Schedule will mutatis mutandis apply as
though references therein to Capital Notes and Noteholders
were references to the Capital Notes of the series or group of
series in question and to the Noteholders of such Capital
Notes respectively.
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14. GROUP MEETINGS
14.1 A meeting of the Noteholders in an Interest Group (as defined in the
Companies Act 1993 and as modified in clause 5.2(j) of this Deed) may
be called by the Trustee or the Company at any time, and shall be
called on the written request of holders of Capital Notes carrying
together not less than 5% of the voting rights entitled to be exercised
on any of the questions to be considered at the meeting of the group in
question. All the provisions of this Deed relating to meetings of
Noteholders apply, with all necessary modifications, to a meeting of an
Interest Group except that:
(a) the necessary quorum is two or more Noteholders in the group
present in person or by proxy or representative, or, if there
is only one Noteholder in the group, that Noteholder present
in person or by proxy or representative;
(b) if the Company so elects, one meeting may be held of
Noteholders constituting more than one group, so long as
voting at that meeting is by way of a poll, and proper
arrangements are made to distinguish between the votes of
members of each group; and
(c) any Noteholder in the group, present in person or by proxy or
representative, may demand a poll.
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SCHEDULE 4: EXISTING JOINT VENTURES
- --------------------------------------------------------------------------------
JOINT VENTURE JURISDICTION OF INCORPORATION
- --------------------------------------------------------------------------------
Fresh Start Bakeries Australia Pty Limited Australia
- --------------------------------------------------------------------------------
Levaduras Collico SA Chile
- --------------------------------------------------------------------------------
Meishan-Mauri Yeast Co Ltd China
- --------------------------------------------------------------------------------
Gelec Ecuador
- --------------------------------------------------------------------------------
P.T. Indo Fermex Indonesia
- --------------------------------------------------------------------------------
P.T. Jaya Fermex Indonesia
- --------------------------------------------------------------------------------
P.T. Sama Indah Indonesia
- --------------------------------------------------------------------------------
P.T. Sinar Meadow International Ltd Indonesia
- --------------------------------------------------------------------------------
Ardigillan Ireland
- --------------------------------------------------------------------------------
Greenoge Ireland
- --------------------------------------------------------------------------------
Gulistan Ireland
- --------------------------------------------------------------------------------
Killeek Ireland
- --------------------------------------------------------------------------------
Kingswinford Ltd Ireland
- --------------------------------------------------------------------------------
Kinter International Ltd Ireland
- --------------------------------------------------------------------------------
Knaresboro Ltd Ireland
- --------------------------------------------------------------------------------
Knowsley Ltd Ireland
- --------------------------------------------------------------------------------
Proofex Products Company Ireland
- --------------------------------------------------------------------------------
Yeast Products Limited Ireland
- --------------------------------------------------------------------------------
Mauri Fermentation (Malaysia) Sdn Bhd Malaysia
- --------------------------------------------------------------------------------
Mauri Fermentation Pakistan (Private) Ltd Pakistan
- --------------------------------------------------------------------------------
Pilmico-Mauri Food Corporation Philippines
- --------------------------------------------------------------------------------
Kombinat Pischevikh Produktov Russia
- --------------------------------------------------------------------------------
Mauri Products Ltd UK
- --------------------------------------------------------------------------------
67