EXHIBIT 4.3
EXECUTION COPY
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Burns Philp Capital Pty Limited
(ACN 100 768 803)
Burns Philp Capital (U.S.) Inc.
Issuers
10 3/4% Senior Subordinated Notes due 2011
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INDENTURE
Dated as of February 20, 2003
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Burns, Philp & Company Limited
(ACN 000 000 359)
and the Subsidiary Guarantors
from time to time party hereto
Guarantors
Wells Fargo Bank, National Association
Trustee
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
- ------- -------
310(a)(1) .......................................... 7.10
(a)(2) .......................................... 7.10
(a)(3) .......................................... N.A.
(a)(4) .......................................... N.A.
(b) .......................................... 7.08; 7.10
(c) .......................................... N.A.
311(a) .......................................... 7.11
(b) .......................................... 7.11
(c) .......................................... N.A.
312(a) .......................................... 2.05
(b) .......................................... 13.03
(c) .......................................... 13.03
313(a) .......................................... 7.06
(b)(1) .......................................... N.A.
(b)(2) .......................................... 7.06
(c) .......................................... 11.02
(d) .......................................... 7.06
314(a) .......................................... 4.02; 13.02
(b) .......................................... N.A.
(c)(1) .......................................... 13.04
(c)(2) .......................................... 13.04
(c)(3) .......................................... N.A.
(d) .......................................... N.A.
(e) .......................................... 13.05
(f) .......................................... N.A.
315(a) .......................................... 7.01
(b) .......................................... 7.05; 13.02
(c) .......................................... 7.01
(d) .......................................... 7.01
(e) .......................................... 6.11
316(a)(last sentence)....................................... 13.06
(a)(1)(A) .......................................... 6.05
(a)(1)(B) .......................................... 6.04
(a)(2) .......................................... N.A.
(b) .......................................... 6.07
317(a)(1) .......................................... 6.08
(a)(2) .......................................... 6.09
(b) .......................................... 2.04
318(a) .......................................... 13.01
N.A. means Not Applicable.
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Note: This Cross-Reference Table shall not, for any purpose, be deemed
to be part of the Indenture.
TABLE OF CONTENTS
Page
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ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01. Definitions ........................................................... 1
SECTION 1.02. Other Definitions ..................................................... 41
SECTION 1.03. Incorporation by Reference of Trust Indenture Act ..................... 42
SECTION 1.04. Rules of Construction ................................................. 42
ARTICLE 2
The Securities
SECTION 2.01. Form and Dating ....................................................... 43
SECTION 2.02. Execution and Authentication .......................................... 44
SECTION 2.03. Registrar and Paying Agent ............................................ 45
SECTION 2.04. Paying Agent to Hold Money in Trust.................................... 45
SECTION 2.05. Securityholder Lists .................................................. 46
SECTION 2.06. Transfer and Exchange ................................................. 46
SECTION 2.07. Replacement Securities ................................................ 47
SECTION 2.08. Outstanding Securities ................................................ 47
SECTION 2.09. Temporary Securities .................................................. 48
SECTION 2.10. Cancelation ........................................................... 48
SECTION 2.11. Defaulted Interest .................................................... 48
SECTION 2.12. CUSIP, ISIN and Common Code Numbers.................................... 48
SECTION 2.13. Issuance of Additional Securities ..................................... 49
ARTICLE 3
Redemption
SECTION 3.01. Notices to Trustee .................................................... 50
SECTION 3.02. Selection of Securities to Be Redeemed ................................ 50
SECTION 3.03. Notice of Redemption .................................................. 51
SECTION 3.04. Effect of Notice of Redemption ........................................ 52
SECTION 3.05. Deposit of Redemption Price ........................................... 52
SECTION 3.06. Securities Redeemed in Part ........................................... 52
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ARTICLE 4
Covenants
SECTION 4.01. Payment of Securities ..................................................... .................... 53
SECTION 4.02. SEC Reports; Meetings with Holders of Securities .......................... .................... 53
SECTION 4.03. Limitation on Indebtedness ................................................ .................... 55
SECTION 4.04. Limitation on Restricted Payments ......................................... .................... 61
SECTION 4.05. Limitation on Restrictions on Distributions from Restricted Subsidiaries .. .................... 66
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock ........................ .................... 69
SECTION 4.07. Limitation on Affiliate Transactions ...................................... .................... 74
SECTION 4.08. Limitation on the Sale or Issuance of Capital Stock of Restricted Subsidiaries and the Issuers . 76
SECTION 4.09. Acquisition Non-Consummation Offer ............................................................. 77
SECTION 4.10. Change of Control .............................................................................. 79
SECTION 4.11. Indebtedness Repurchase Event .................................................................. 81
SECTION 4.12. Limitation on Issuers .......................................................................... 82
SECTION 4.13. Future Guarantors .............................................................................. 82
SECTION 4.14. Additional Amounts ............................................................................. 83
SECTION 4.15. Compliance Certificate ......................................................................... 87
SECTION 4.16. Further Instruments and Acts ................................................................... 87
ARTICLE 5
Successor Company
SECTION 5.01. When Company, Issuers and Subsidiary Guarantors May Merge or Transfer Assets ................... 87
ARTICLE 6
Defaults and Remedies
SECTION 6.01. Events of Default .............................................................................. 91
SECTION 6.02. Acceleration ................................................................................... 94
SECTION 6.03. Other Remedies ................................................................................. 95
SECTION 6.04. Waiver of Past Defaults ........................................................................ 95
SECTION 6.05. Control by Majority ............................................................................ 95
SECTION 6.06. Limitation on Suits ............................................................................ 96
SECTION 6.07. Rights of Holders to Receive Payment ........................................................... 96
SECTION 6.08. Collection Suit by Trustee ..................................................................... 96
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SECTION 6.09. Trustee May File Proofs of Claim ......................... 97
SECTION 6.10. Priorities ............................................... 97
SECTION 6.11. Undertaking for Costs .................................... 98
SECTION 6.12. Waiver of Stay or Extension Laws ......................... 98
ARTICLE 7
Trustee
SECTION 7.01. Duties of Trustee ........................................ 98
SECTION 7.02. Rights of Trustee ........................................ 100
SECTION 7.03. Individual Rights of Trustee ............................. 102
SECTION 7.04. Trustee's Disclaimer ..................................... 102
SECTION 7.05. Notice of Defaults ....................................... 102
SECTION 7.06. Reports by Trustee to Holders ............................ 102
SECTION 7.07. Compensation and Indemnity ............................... 103
SECTION 7.08. Replacement of Trustee ................................... 104
SECTION 7.09. Successor Trustee by Merger .............................. 105
SECTION 7.10. Eligibility; Disqualification ............................ 106
SECTION 7.11. Preferential Collection of Claims Against Issuers ........ 106
ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities; Defeasance ......... 106
SECTION 8.02. Conditions to Defeasance ................................. 107
SECTION 8.03. Application of Trust Money ............................... 110
SECTION 8.04. Repayment to Issuers ..................................... 110
SECTION 8.05. Indemnity for Government Obligations ..................... 110
SECTION 8.06. Reinstatement ............................................ 110
ARTICLE 9
Amendments
SECTION 9.01. Without Consent of Holders ............................... 111
SECTION 9.02. With Consent of Holders .................................. 112
SECTION 9.03. Compliance with Trust Indenture Act ...................... 114
SECTION 9.04. Revocation and Effect of Consents and Waivers ............ 114
SECTION 9.05. Notation on or Exchange of Securities .................... 114
SECTION 9.06. Trustee To Sign Amendments ............................... 115
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SECTION 9.07. Payment for Consent ........................................................................ 115
ARTICLE 10
Subordination
SECTION 10.01. Agreement To Subordinate ................................................................... 115
SECTION 10.02. Liquidation, Dissolution, Bankruptcy ....................................................... 116
SECTION 10.03. Default on Senior Indebtedness of the Issuers .............................................. 116
SECTION 10.04. Acceleration of Payment of Securities ...................................................... 118
SECTION 10.05. When Distribution Must Be Paid Over ........................................................ 118
SECTION 10.06. Subrogation ................................................................................ 118
SECTION 10.07. Relative Rights ............................................................................ 118
SECTION 10.08. Subordination May Not Be Impaired by Issuers ............................................... 118
SECTION 10.09. Rights of Trustee and Paying Agent ......................................................... 119
SECTION 10.10. Distribution or Notice to Representative ................................................... 119
SECTION 10.11. Article 10 Not to Prevent Events of Default or Limit Right To Accelerate ................... 119
SECTION 10.12. Trust Moneys Not Subordinated .............................................................. 120
SECTION 10.13. Trustee Entitled to Rely ................................................................... 120
SECTION 10.14. Trustee to Effectuate Subordination ........................................................ 121
SECTION 10.15. Trustee Not Fiduciary for Holders of Senior Indebtedness of the Issuers .................... 121
SECTION 10.16. Reliance by Holders of Senior Indebtedness of the Issuers on Subordination Provisions ...... 121
ARTICLE 11
Guaranties
SECTION 11.01. Company Guaranty ........................................................................... 121
SECTION 11.02. Subsidiary Guaranties ...................................................................... 124
SECTION 11.03. Limitation on Liability of Subsidiary Guarantors ........................................... 127
SECTION 11.04. Successors and Assigns ..................................................................... 127
SECTION 11.05. No Waiver .................................................................................. 128
SECTION 11.06. Modification ............................................................................... 128
SECTION 11.07. Release of Subsidiary Guarantor ............................................................ 128
SECTION 11.08. Contribution ............................................................................... 129
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ARTICLE 12
Subordination of Securities Guaranties
SECTION 12.01. Agreement to Subordinate ......................................................................... 129
SECTION 12.02. Liquidation, Dissolution, Bankruptcy ............................................................. 129
SECTION 12.03. Default on Senior Indebtedness of Securities Guarantor ........................................... 130
SECTION 12.04. Demand for Payment ............................................................................... 131
SECTION 12.05. When Distribution Must Be Paid Over .............................................................. 132
SECTION 12.06. Subrogation ...................................................................................... 132
SECTION 12.07. Relative Rights .................................................................................. 132
SECTION 12.08. Subordination May Not Be Impaired by a Securities Guarantor ...................................... 132
SECTION 12.09. Rights of Trustee and Paying Agent ............................................................... 131
SECTION 12.10. Distribution or Notice to Representative ......................................................... 133
SECTION 12.11. Article 12 Not to Prevent Events of Default or Limit Right to Demand Payment ..................... 133
SECTION 12.12. Trustee Entitled to Rely ......................................................................... 134
SECTION 12.13. Trustee to Effectuate Subordination .............................................................. 134
SECTION 12.14. Trustee Not Fiduciary for Holders of Senior Indebtedness of Securities Guarantor ................. 135
SECTION 12.15. Reliance by Holders of Senior Indebtedness of Securities Guarantors on Subordination Provisions .. 135
ARTICLE 13
Miscellaneous
SECTION 13.01. Trust Indenture Act Controls .................................................................... 135
SECTION 13.02. Notices ......................................................................................... 135
SECTION 13.03. Communication by Holders with Other Holders ..................................................... 136
SECTION 13.04. Certificate and Opinion as to Conditions Precedent .............................................. 137
SECTION 13.05. Statements Required in Certificate or Opinion ................................................... 137
SECTION 13.06. When Securities Disregarded ..................................................................... 138
SECTION 13.07. Rules by Trustee, Paying Agent and Registrar .................................................... 138
SECTION 13.08. Legal Holidays .................................................................................. 138
SECTION 13.09. Governing Law ................................................................................... 138
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SECTION 13.10. Consent to Jurisdiction; Appointment of Agent for Service of Process; Judgment Currency ........ 138
SECTION 13.11. No Recourse Against Others ..................................................................... 141
SECTION 13.12. Successors ..................................................................................... 142
SECTION 13.13. Multiple Originals ............................................................................. 142
SECTION 13.14. Table of Contents; Headings .................................................................... 142
Exhibit 1 - Form of supplemental indenture for future guarantors
Rule 144A/Regulation S Appendix
Exhibit 1 - Form of Initial Security
Exhibit A - Form of Exchange Security or Private Exchange Security
INDENTURE dated as of February 20, 2003,
among Burns Philp Capital Pty Limited (ACN 100 768
803), an Australian corporation (the "Australian
Issuer"), Burns Philp Capital (U.S.) Inc., a Delaware
corporation (the "US Issuer" and, collectively with
the Australian Issuer, the "Issuers"), Burns, Philp &
Company Limited (ACN 000 000 359), an Australian
corporation (the "Company"), the Subsidiary
Guarantors from time to time party hereto and Wells
Fargo Bank, National Association, a national banking
association, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Company's
Initial Securities, Exchange Securities and Private Exchange Securities
(collectively, the "Securities"):
ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
"Accreted Value" with respect to any Security means, as of any
date of determination, the sum of (a) the initial Accreted Value of such
Security (which is US$949.13 per US$1,000 in principal amount of Securities) and
(b) the portion of the excess of the principal amount of such Security over such
initial Accreted Value which shall have been amortized through such date, such
amount to be so amortized on a daily basis and compounded semiannually on each
February 15 and August 15 at the rate of 11.75% per annum from the date of
original issuance of such Security through the date of determination computed on
the basis of a 360-day year of twelve 30-day months. The Accreted Value of any
Security on or after the maturity date for the Securities shall be equal to 100%
of its stated principal amount.
"Accreted Value Premium" with respect to any Security as of
any date of determination means the product of (i) the sum of (x) the Accreted
Value of such Security
2
on such date, expressed as a percentage of the principal amount of such
Security, and (y) 2.0% and (ii) the principal amount of such Security.
"Acquisition" means the acquisition by any Person, by
purchase, merger, consolidation or otherwise, of all or substantially all of the
business, property or fixed assets of, or Capital Stock or other ownership
interest of, any Person, or any division or line of business of any Person.
"Additional Assets" means
(1) any property, plant or equipment;
(2) the Capital Stock of a Person that becomes a Restricted
Subsidiary as a result of the acquisition of such Capital Stock by the
Company or another Restricted Subsidiary;
(3) Capital Stock constituting a minority interest in any
Person that at such time is a Restricted Subsidiary; or
(4) Investments in joint ventures operating Related
Businesses; provided, however, that such Investments do not exceed in
the aggregate 5% of Total Assets.
"Additional Securities" means, subject to the Company's
compliance with Section 4.03, any additional 10 3/4% Senior Subordinated Notes
due 2011 issued from time to time after the Issue Date under the terms of this
Indenture (other than pursuant to Section 2.06, 2.07, 2.09, 3.06 or 9.05 of this
Indenture or Section 2.3 of the Appendix and other than Exchange Securities or
Private Exchange Securities issued pursuant to an exchange offer for other
Securities outstanding under this Indenture).
"Affiliate" of any specified Person means any other Person,
directly or indirectly, controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise;
3
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing. For purposes of Sections 4.04, 4.06 and 4.07 only, "Affiliate" shall
also mean any beneficial owner of Capital Stock representing 10% or more of the
total voting power of the Voting Stock (on a fully diluted basis) of the Company
or of rights or warrants to purchase such Capital Stock (whether or not
currently exercisable) and any Person who would be an Affiliate of any such
beneficial owner pursuant to the first sentence hereof.
"Asset Disposition" means (i) an Asset Swap or (ii) any sale,
lease, transfer or other disposition (or series of related sales, leases,
transfers or dispositions) by the Company or any Restricted Subsidiary,
including any disposition by means of a merger, consolidation or similar
transaction (each referred to for the purposes of this definition as a
"disposition"), of:
(1) any shares of Capital Stock of a Restricted Subsidiary
(other than (x) directors' qualifying shares or shares required by
applicable law to be held by a Person other than the Company or a
Restricted Subsidiary, (y) in connection with an issuance of shares
permitted by Section 4.08 immediately after which the proportionate
interest of the Company and/or its Restricted Subsidiaries in such
issuing Restricted Subsidiary is substantially the same as prior
thereto and (z) in connection with an issuance of shares pursuant to
the terms of any Capital Securities);
(2) all or substantially all the assets of any division or
line of business of the Company or any Restricted Subsidiary; or
(3) any other assets of the Company or any Restricted
Subsidiary outside of the ordinary course of business of the Company or
such Restricted Subsidiary;
other than, in the case of clauses (1), (2) and (3) above,
(A) a disposition to the Company or a Restricted
Subsidiary;
(B) for purposes of Section 4.06 only, a disposition
(x) that constitutes a Restricted Payment (or would constitute
a Restricted
4
Payment but for the exclusions from the definition thereof)
and that is not prohibited by Section 4.04 or (y) that
constitutes a transaction permitted by Section 5.01(a);
(C) a disposition of assets with a fair market value
of less than US$2.0 million;
(D) the disposition by the Company or any Restricted
Subsidiary of (i) inventory and other assets acquired or
produced and held for sale or resale in the ordinary course of
business (including inventory that is no longer useful in the
conduct of the Company's or its Subsidiaries' businesses),
(ii) obsolete, damaged or worn out personal property that is
no longer useful in the ordinary course of business, (iii)
undeveloped land, (iv) facilities (including the related land)
which have been permanently closed and are no longer useful in
the ordinary course of business or (v) rights granted to
others pursuant to leases, subleases or licenses in the
ordinary course of business;
(E) any disposition of receivables and related
assets, proceeds or Capital Stock of a Securitization
Subsidiary pursuant to a Permitted Receivables Financing;
(F) the surrender or waiver of contract rights or the
settlement, release or surrender of contract, tort or other
claims of any kind;
(G) the sale, discount or factoring of accounts
receivable arising in the ordinary course of business; and
(H) any disposition of Capital Stock or assets of an
Unrestricted Subsidiary.
"Asset Swap" means any exchange of property or assets of the
Company or any Restricted Subsidiary for property or assets of another Person
that are intended to be used by the Company or any Restricted Subsidiary in a
Related Business, including, to the extent necessary to
5
equalize the value of the assets being exchanged, cash of any party to such
asset swap.
"Attributable Debt" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate set forth or implicit in the terms of the lease included in such
transaction) of the total obligations of the lessee for rental payments during
the remaining term of the lease included in such Sale/Leaseback Transaction
(including any period for which such lease has been extended); provided,
however, that if such Sale/Leaseback Transaction results in a Capital Lease
Obligation, the amount of Indebtedness represented thereby will be determined in
accordance with the definition of "Capital Lease Obligation".
"Australian Dollar Equivalent" means with respect to any
monetary amount in a currency other than Australian dollars, at any time for
determination thereof, the amount of Australian dollars obtained by converting
such foreign currency involved in such computation into Australian dollars at
the spot rate for the purchase of Australian dollars with the applicable foreign
currency as published on Reuters Page RBA26 on the date two Business Days prior
to such determination.
"Average Life" means, as of the date of determination, with
respect to any Indebtedness, the quotient obtained by dividing:
(1) the sum of the products of the numbers of years from the
date of determination to the dates of each successive scheduled
principal payment of or redemption or similar payment with respect to
such Indebtedness multiplied by the amount of such payment by
(2) the sum of all such payments.
"Board of Directors" with respect to a Person means the Board
of Directors of such Person or any committee thereof duly authorized to act on
behalf of such Board.
"Business Day" means each day which is not a Legal Holiday.
6
"Capital Lease Obligation" means an obligation that is
required to be classified and accounted for as a capital lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP; and the Stated Maturity thereof
shall be the date of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be terminated by the
lessee without payment of a penalty.
"Capital Notes" means Indebtedness Incurred or Capital
Securities issued pursuant to any Capital Notes Facility; provided, however,
that any such Indebtedness is subordinated in right of payment to the Securities
pursuant to the terms of such Capital Notes Facility.
"Capital Notes Facility" means the Subordinated Bridge
Facility Agreement among the Company, BPC1 Pty Ltd and affiliates of Credit
Suisse First Boston LLC for purposes of financing a portion of the Goodman
Fielder Acquisition, together with the related documents thereto, including the
subordination deed and any guarantees, as amended, extended, renewed, restated,
supplemented or replaced, by one or more facilities, debt instruments,
indentures and/or related documentation, or otherwise modified, in whole or in
part, and without limitation as to maturity, terms, conditions, covenants and
any other provisions (other than the amount outstanding or committed), from time
to time, and any facility, instrument or indenture, and related documentation,
governing Indebtedness Incurred to Refinance, in whole or in part, the
borrowings and commitments then outstanding or permitted to be outstanding under
the Subordinated Bridge Facility Agreement or any successor Capital Notes
Facility.
"Capital Securities" means, with respect to any Person, any
securities (including notes and Capital Stock):
(1) which would rank junior to the Securities, the Company
Guaranty or a Subsidiary Guaranty, as applicable, in any bankruptcy of
the obligor on such securities;
(2) which do not require any redemption, repayment, repurchase
or other payment of the
7
principal amount thereof by the obligor on such securities except for
redemptions, repayments, repurchases or other payments that, at the
sole option of such obligor, can be made in Capital Stock of such
Person (which is not Disqualified Stock); and
(3) which are not convertible or exchangeable at the option of
the holder for Indebtedness or Disqualified Stock; provided, however,
that the obligor's obligation with respect to such securities is not
Guaranteed by any Person (other than Guarantees by one or more
Guarantors, which Guarantees are subordinated in right of payment to
such Guarantors' Guarantees in respect of the Securities) or secured by
any Lien.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt securities convertible
into such equity.
"Change of Control" means the occurrence of any of the
following events:
(1) any "person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act), other than one or more
Permitted Holders, is or becomes the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act),
except that for purposes of this clause (1) such person shall
be deemed to have "beneficial ownership" of all shares that
any such person has the right to acquire, whether such right
is exercisable immediately or only after the passage of time),
directly or indirectly, of more than 50% of the total voting
power of the Voting Stock of the Company (for the purposes of
this clause (1), such other person shall be deemed to
beneficially own any Voting Stock of a Person (the "specified
person") held by any other Person (the "parent entity"), if
such other person is the beneficial owner (as defined above in
this clause (1), directly or indirectly, of more than
8
50% of the voting power of the Voting Stock of such parent
entity);
(2) individuals who on the Issue Date constituted the
Board of Directors of the Company (together with any new
directors (i) appointed or nominated by one or more Permitted
Holders or (ii) whose election by such Board of Directors of
the Company or whose nomination for election by the
shareholders of the Company, was approved by a vote of a
majority of the directors of the Company then still in office
who were either directors on the Issue Date or whose election
or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of
Directors of the Company then in office;
(3) other than in connection with a transaction
described below in clause (4), the adoption of a plan relating
to the liquidation or dissolution of the Company;
(4) the merger or consolidation of the Company with
or into another Person or the merger of another Person with or
into the Company, or the sale of all or substantially all the
assets of the Company (determined on a consolidated basis) in
one or a series of related transactions to another Person
other than, in all such cases, (i) a transaction in which the
surviving or acquiring Person is controlled by the Permitted
Holders or (ii) a transaction following which holders of
securities that represented 100% of the Voting Stock of the
Company immediately prior to such transaction (or other
securities into which such securities are converted as part of
such transaction) beneficially own in the aggregate directly
or indirectly at least a majority of the voting power of the
Voting Stock of the surviving Person or transferee immediately
after such transaction; or
(5) the Company ceases to own, directly or
indirectly, all the Voting Stock of the Issuers.
9
"Code" means the Internal Revenue Code of 1986, as amended.
"Commodity Agreement" means any commodity or raw material
futures contract, commodity or raw materials option, or any other agreement
designed to protect against or manage exposure to fluctuations in commodity or
raw material prices.
"Company" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor and, for
purposes of any provision contained herein and required by the TIA, each other
obligor on the indenture securities.
"Company Guaranty" means the Guarantee of the Company of the
Issuers' obligations with respect to the Securities.
"Company Options" means the options issued by the Company that
were outstanding and listed on the Australian Stock Exchange on February 1,
2003.
"Consolidated Coverage Ratio" as of any date of determination
means the ratio of (x) the aggregate amount of EBITDA for the period of (i) the
most recent four consecutive fiscal quarters ending at least 45 days prior to
the date of such determination or (ii) if quarterly financial information is
available for the immediately preceding fiscal quarter and such financial
information is included in the reports filed or delivered pursuant to Section
4.02, the most recent four consecutive quarters, to (y) Consolidated Interest
Expense for such four fiscal quarters; provided, however, that:
(1) if the Company or any Restricted Subsidiary has Incurred
any Indebtedness since the beginning of such period that remains
outstanding on the date of determination or if the transaction giving
rise to the need to calculate the Consolidated Coverage Ratio is an
Incurrence of Indebtedness, or both, EBITDA and Consolidated Interest
Expense for such period shall be calculated after giving effect on a
pro forma basis to such Indebtedness as if such Indebtedness had been
Incurred on the first day of such period; provided, further, however,
that Consolidated Interest Expense for each of the four consecutive
fiscal quarters ended
10
on March 31, 2002 shall be calculated on a pro forma basis as if the
Existing 9 3/4% Senior Subordinated Notes had been issued on April 1,
2001 and the proceeds thereof applied on such date to repay the
Convertible Bonds in full and to repay US$325 million of Indebtedness
under the Company's Term Loan Facility;
(2) if the Company or any Restricted Subsidiary has repaid,
repurchased, defeased or otherwise discharged any Indebtedness since
the beginning of such period or if any Indebtedness is to be repaid,
repurchased, defeased or otherwise discharged (in each case other than
Indebtedness Incurred under any revolving credit facility unless such
Indebtedness has been permanently repaid and has not been replaced) on
the date of the transaction giving rise to the need to calculate the
Consolidated Coverage Ratio, EBITDA and Consolidated Interest Expense
for such period shall be calculated on a pro forma basis as if such
discharge had occurred on the first day of such period and as if the
Company or such Restricted Subsidiary had not earned the interest
income actually earned during such period in respect of cash or
Temporary Cash Investments used to repay, repurchase, defease or
otherwise discharge such Indebtedness;
(3) if since the beginning of such period the Company or any
Restricted Subsidiary shall have made any Asset Disposition, EBITDA for
such period shall be reduced by an amount equal to EBITDA (if positive)
directly attributable to the assets which are the subject of such Asset
Disposition for such period, or increased by an amount equal to EBITDA
(if negative), directly attributable thereto for such period and
Consolidated Interest Expense for such period shall be reduced by an
amount equal to the Consolidated Interest Expense directly attributable
to any Indebtedness of the Company or any Restricted Subsidiary repaid,
repurchased, defeased or otherwise discharged with respect to the
Company and its continuing Restricted Subsidiaries in connection with
such Asset Disposition for such period (and, without duplication, if
the Capital Stock of any Restricted Subsidiary is sold, the
Consolidated Interest Expense for such period directly attributable to
the Indebtedness of such Restricted Subsidiary to the
11
extent the Company and its continuing Restricted Subsidiaries are no
longer liable for such Indebtedness after such sale);
(4) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger or otherwise) shall have made an
Investment in any Restricted Subsidiary (or any person which becomes a
Restricted Subsidiary) or an acquisition of assets, including any
acquisition of assets occurring in connection with a transaction
requiring a calculation to be made hereunder, which constitutes all or
substantially all of a line of business or an operating unit of a
business, EBITDA and Consolidated Interest Expense for such period
shall be calculated after giving pro forma effect thereto (including
the Incurrence of any Indebtedness) as if such Investment or
acquisition occurred on the first day of such period; and
(5) if since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged with or into
the Company or any Restricted Subsidiary since the beginning of such
period) shall have made any Asset Disposition, any Investment or
acquisition of assets that would have required an adjustment pursuant
to clause (3) or (4) above if made by the Company or a Restricted
Subsidiary during such period, EBITDA and Consolidated Interest Expense
for such period shall be calculated after giving pro forma effect
thereto in substantially the manner described in clause (3) or (4)
above, as the case may be, as if such Asset Disposition, Investment or
acquisition occurred on the first day of such period.
For purposes of this definition, whenever pro forma effect is to be given to an
acquisition of assets, the amount of income or earnings relating thereto and the
amount of Consolidated Interest Expense associated with any Indebtedness
Incurred in connection therewith, the pro forma calculations shall be determined
in good faith by a responsible financial or accounting Officer of the Company.
Any such pro forma calculations may include operating expense reductions (net of
associated expenses) for such period resulting from the acquisition or other
Investment
12
which is being given pro forma effect that (a) would be permitted pursuant to
Rule 11-02 of Regulation S-X under the Securities Act or (b) have been realized
or for which substantially all of the steps necessary for realization have been
taken or, with respect to the Goodman Fielder Acquisition only, at the time of
determination are reasonably expected by the Chief Financial Officer of the
Company to be taken within six months following the Goodman Fielder Acquisition,
including but not limited to, the execution, termination, renegotiation or
modification of any contracts, the termination of any personnel or the closing
of any facility, as applicable, provided that such adjustments shall be
calculated on an annualized basis and will be set forth in an Officers'
Certificate signed by the Company's Chief Financial Officer and another Officer
which states in detail (i) the amount of such adjustment or adjustments and (ii)
that such adjustment or adjustments are based on the reasonable good faith
beliefs of the Officers executing such Officers' Certificate at the time of such
execution. If any Indebtedness bears a floating rate of interest and is being
given pro forma effect, the interest on such Indebtedness shall be calculated as
if the rate in effect on the date of determination had been the applicable rate
for the entire period (taking into account any Interest Rate Agreement
applicable to such Indebtedness if such Interest Rate Agreement has a remaining
term in excess of 12 months or, if less, a remaining term equal to the remaining
term of the Indebtedness).
"Consolidated Interest Expense" means, for any period, the
total interest expense of the Company and its consolidated Restricted
Subsidiaries, less interest income, plus, to the extent not included in such
total interest expense, and to the extent incurred by the Company or its
Restricted Subsidiaries, without duplication:
(1) interest expense attributable to capital leases (which
interest shall be deemed to accrue at an interest rate reasonably
determined in good faith by the Company to be the rate of interest
implicit in such Capital Lease Obligation in accordance with GAAP) and
the interest expense attributable to leases constituting part of a
Sale/Leaseback Transaction;
(2) amortization of debt discount (other than discount based
on the value of Capital Stock
13
(excluding Disqualified Stock) issued with another security);
(3) capitalized interest;
(4) non-cash interest expense;
(5) commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing;
(6) net payments pursuant to obligations under Interest Rate
Agreements and, to the extent Currency Agreements relate to
Indebtedness or Interest Rate Agreements, Currency Agreements;
(7) dividends in respect of all Disqualified Stock held by
Persons other than the Company or a Wholly Owned Subsidiary (other than
dividends (i) payable solely in Capital Stock (other than Disqualified
Stock) of the Company and (ii) in respect of Converting Preference
Shares); provided, however, that such dividends shall be multiplied by
a fraction the numerator of which is one and the denominator of which
is one minus the effective combined tax rate of the issuer of such
Preferred Stock (expressed as a decimal) for such period (as estimated
by the Chief Financial Officer of the Company in good faith);
(8) interest incurred in connection with Investments in
discontinued operations;
(9) interest accruing on any Indebtedness of any other Person
to the extent such Indebtedness is Guaranteed by (or secured by the
assets of) the Company or any Restricted Subsidiary; and
(10) the cash contributions to any employee stock ownership
plan or similar trust to the extent such contributions are used by such
plan or trust to pay interest or fees to any Person (other than the
Company) in connection with Indebtedness Incurred by such plan or
trust;
provided, however, that for the purpose of calculating the Consolidated Leverage
Ratio, Consolidated Interest Expense shall mean, for any period, the total
interest expense of
14
the Company and its consolidated Restricted Subsidiaries, less interest income,
calculated in accordance with GAAP.
"Consolidated Leverage Ratio" as of any date of determination
means the ratio of (x) the aggregate amount of Indebtedness of the Company and
its Restricted Subsidiaries (other than Subordinated Obligations) minus the
total consolidated cash and Temporary Cash Investments of the Company and its
Restricted Subsidiaries, in each case as of the date of determination, to (y)
EBITDA for the period of (i) the most recent four consecutive fiscal quarters
ending at least 45 days prior to the date of determination or (ii) if quarterly
information is available for the immediately preceding fiscal quarter and such
financial information is included in the reports filed or delivered pursuant to
Section 4.02, the most recent four consecutive fiscal quarters, in each case
with such pro forma adjustments to EBITDA as are appropriate and consistent with
the pro forma adjustment provisions set forth in the definition of Consolidated
Coverage Ratio.
"Consolidated Net Income" means, for any period, the net
income of the Company and its consolidated Subsidiaries; provided, however, that
there shall not be included in such Consolidated Net Income:
(1) any net income of any Person (other than the Company) if
such Person is not a Restricted Subsidiary, except that:
(A) subject to the exclusion contained in clause (4)
below, the Company's equity in the net income of any such
Person for such period shall be included in such Consolidated
Net Income up to the aggregate amount of cash that could have
been distributed by such Person during such period to the
Company or a Restricted Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or other
distribution paid to a Restricted Subsidiary, to the
limitations contained in clause (3) below); and
(B) the Company's equity in a net loss of any such
Person for such period shall be included in determining such
Consolidated Net Income;
15
(2) any net income (or loss) of any Person acquired by the
Company or a Subsidiary in a pooling of interests transaction for any
period prior to the date of such acquisition;
(3) any net income of any Restricted Subsidiary if payment of
dividends or the making of distributions by such Restricted Subsidiary,
directly or indirectly, to the Company is not permitted by the terms of
its charter or by-laws or any other agreement, instrument, judgment,
decree, order, statute, rule or government regulation applicable to
such Restricted Subsidiary (but only to the extent that the foregoing
restricts the ability of the Company to readily procure that an amount
of cash equal to the amount of net income for such period is
transferable to the Company or a Restricted Subsidiary and the amount
that is readily procurable is certified by the chief financial officer
of the Company), except that:
(A) subject to the exclusion contained in clause (4)
below, the Company's equity in the net income of any such
Restricted Subsidiary for such period shall be included in
such Consolidated Net Income up to the aggregate amount of
cash actually distributed by such Restricted Subsidiary during
such period to the Company or another Restricted Subsidiary as
a dividend or other distribution (subject, in the case of a
dividend or other distribution paid to another Restricted
Subsidiary, to the limitation contained in this clause); and
(B) the Company's equity in a net loss of any such
Restricted Subsidiary for such period shall be included in
determining such Consolidated Net Income;
(4) any gain (or loss) realized upon the sale or other
disposition of any assets of the Company, its consolidated Subsidiaries
or any other Person (including pursuant to any sale-and-leaseback
arrangement) which is not sold or otherwise disposed of in the ordinary
course of business and any gain (or loss) realized upon the sale or
other disposition of any Capital Stock of any Person;
16
(5) extraordinary gains or losses/unusual items; and
(6) the cumulative effect of a change in accounting
principles.
Notwithstanding the foregoing, for the purposes of Section 4.04 only, (a) there
shall be excluded from Consolidated Net Income any repurchases, repayments or
redemptions of Investments, proceeds realized on the sale of Investments or
return of capital to the Company or a Restricted Subsidiary to the extent such
repurchases, repayments, redemptions, proceeds or returns increase the amount of
Restricted Payments permitted under such covenant pursuant to clause (a)(3)(D)
thereof and (b) there shall be added to Consolidated Net Income all dividends
and interest paid in respect of Converting Preference Shares, Capital Notes and
Capital Securities during the relevant period.
"Convertible Bonds" means the 5 1/2% guaranteed subordinated
convertible bonds due 2004 of Burns Philp Treasury (Europe) B.V. and guaranteed
by the Company redeemed on September 9, 2002.
"Converting Preference Shares" means the Company's Converting
Preference Shares outstanding on the Issue Date.
"Corporate Trust Office" means the principal office of the
Trustee at 707 Wilshire Blvd., 17th Floor, Los Angeles, California 90017,
Attention: Corporate Trust Department, where at any particular time its
corporate business shall be principally administered, or such other address as
the Trustee (or successor trustee) may designate from time to time by notice to
the Holders and the Issuers.
"Credit Agreement" means (i) the Senior Funding Agreement
dated August 2, 2001 among Burns, Philp & Company Limited, certain borrowers
thereunder, Credit Suisse First Boston, Melbourne Branch, as lead arranger and
underwriter, The Toronto-Dominion Bank, as a co-lead arranger and underwriter,
Credit Suisse First Boston, Melbourne Branch, as facility agent, and certain
financial institutions, (ii) the related Term Loan Facility Agreement dated
August 2, 2001 and (iii) the related Revolving Loan Facility Agreement dated
August 2, 2001, together with the related documents thereto (including the term
loans and
17
revolving loans thereunder, any guarantees and security documents), in the case
of each of the foregoing clauses (i), (ii) and (iii), as amended, extended,
renewed, restated, supplemented, replaced (by one or more credit agreements or
facilities, debt instruments and/or related documentation) or otherwise modified
(in whole or in part, and without limitation as to amount (outstanding or
committed), maturity, terms, conditions, covenants and other provisions) from
time to time, and any agreement (and related document) governing Indebtedness
incurred to Refinance, in whole or in part, the borrowings and commitments then
outstanding or permitted to be outstanding under such Credit Agreement or a
successor Credit Agreement, whether by the same or any other lender or group of
lenders.
"Currency Agreement" means in respect of a Person any foreign
exchange contract, currency swap agreement or other similar agreement designed
to protect such Person against fluctuations in currency values.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Designated Senior Indebtedness", with respect to a Person
means:
(1) any Indebtedness Incurred pursuant to the Credit
Agreement; and
(2) any other Senior Indebtedness of such Person which, at the
date of determination, has an aggregate principal amount outstanding
of, or under which, at the date of determination, the holders thereof
are committed to lend up to, at least US$25.0 million and is
specifically designated by such Person in the instrument evidencing or
governing such Senior Indebtedness as "Designated Senior Indebtedness"
for purposes of this Indenture.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock which by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable at the option of the holder) or
upon the happening of any event:
18
(1) matures or is mandatorily redeemable (other than
redeemable only for Capital Stock of such Person which is not itself
Disqualified Stock) pursuant to a sinking fund obligation or otherwise;
(2) is convertible or exchangeable at the option of the holder
for Indebtedness or Disqualified Stock; or
(3) is mandatorily redeemable or must be purchased upon the
occurrence of certain events or otherwise, in whole or in part;
in each case (except for purposes of clause (7) of the definition of
"Consolidated Interest Expense" and clause (b)(11) of Section 4.04) on or prior
to the first anniversary of the Stated Maturity of the Securities; provided,
however, that any Capital Stock that would not constitute Disqualified Stock but
for provisions thereof giving holders thereof the right to require such Person
to purchase or redeem such Capital Stock upon the occurrence of an "asset sale"
or "change of control" occurring prior to the first anniversary of the Stated
Maturity of the Securities shall not constitute Disqualified Stock if:
(1) the "asset sale" or "change of control" provisions
applicable to such Capital Stock are not more favorable in any material
respect to the holders of such Capital Stock than the terms applicable
to the Securities in Sections 4.06 and 4.10 of this Indenture; and
(2) any such requirement only becomes operative after
compliance with such terms applicable to the Securities, including the
purchase of any Securities tendered pursuant thereto.
The amount of any Disqualified Stock that does not have a fixed redemption,
repayment or repurchase price shall be calculated in accordance with the terms
of such Disqualified Stock as if such Disqualified Stock were redeemed, repaid
or repurchased on any date on which the amount of such Disqualified Stock is to
be determined pursuant to this Indenture; provided, however, that if such
Disqualified Stock could not be required to be redeemed, repaid or repurchased
at the time of such determination, the redemption, repayment or repurchase price
shall be the
19
book value of such Disqualified Stock as reflected in the most recent financial
statements of such Person.
"EBITDA" for any period means the sum of Consolidated Net
Income, plus the following to the extent deducted in calculating such
Consolidated Net Income:
(1) all income tax expense of the Company and its consolidated
Restricted Subsidiaries;
(2) Consolidated Interest Expense;
(3) depreciation and amortization expense of the Company and
its consolidated Restricted Subsidiaries (excluding amortization
expense attributable to a prepaid operating activity item and
amortization of prepaid slotting allowances in each case that were paid
in cash in a prior period); and
(4) all other non-cash charges of the Company and its
consolidated Restricted Subsidiaries (excluding any such non-cash
charge to the extent that it represents an accrual of or reserve for
cash expenditures in any future period);
in each case for such period. Notwithstanding the foregoing, the provision for
taxes based on the income or profits of, and the depreciation and amortization
and non- cash charges of, a Restricted Subsidiary shall be added to Consolidated
Net Income to compute EBITDA only to the extent (and in the same proportion,
including by reason of minority interests) that the net income of such
Restricted Subsidiary was included in calculating Consolidated Net Income and
only (x) to the extent that such amount would be permitted at the date of
determination to be dividended to the Company by such Restricted Subsidiary
without prior approval (that has not been obtained), pursuant to the terms of
its charter and all agreements, instruments, judgments, decrees, orders,
statutes, rules and governmental regulations applicable to such Restricted
Subsidiary or its stockholders or (y) to the extent that the Company can readily
procure that such amount of cash is transferable to the Company and such amount
is certified by the chief financial officer of the Company.
"Exchange Act" means the U.S. Securities Exchange Act of 1934,
as amended.
20
"Existing 9 3/4% Senior Subordinated Notes" means the 9 3/4%
Senior Subordinated Notes due 2012 of the Australian Issuer and guaranteed by
the Guarantors, issued on June 21, 2002.
"GAAP" means generally accepted accounting principles,
standards and practices in Australia or which are required to be applied under
the Australian Corporations Act 2001 (Cth), which are applicable as of the date
of determination; provided that the definitions contained in this Indenture and
all ratios and calculations under the covenants herein shall be determined in
accordance with GAAP as in effect on the date hereof.
"Goodman Fielder" means Goodman Fielder Limited, an Australian
corporation and any successor thereto.
"Goodman Fielder Acquisition" means any transaction or series
of transactions as a result of which the Company or any of its Subsidiaries
acquires all or any portion of the Capital Stock of Goodman Fielder.
"Goodman Fielder Acquisition Indebtedness" means Indebtedness
(other than Subordinated Obligations) Incurred to finance any portion of the
Goodman Fielder Acquisition; provided, however, that Goodman Fielder Acquisition
Indebtedness shall not include: (i) Indebtedness of Goodman Fielder or any of
its Subsidiaries that is outstanding on the date that Goodman Fielder becomes a
Subsidiary of the Company or Indebtedness of the Company or any of its
Subsidiaries Incurred to purchase Indebtedness of Goodman Fielder outstanding on
the date that Goodman Fielder becomes a Subsidiary of the Company, in each case
to the extent that such Indebtedness is permanently repaid within 120 days after
the date that Goodman Fielder becomes a Wholly Owned Subsidiary; provided
further, however, that Goodman Fielder Acquisition Indebtedness will include any
Indebtedness Incurred to Refinance Indebtedness referred to in the immediately
preceding proviso or any other Goodman Fielder Acquisition Indebtedness, but the
aggregate amount of all Goodman Fielder Acquisition Indebtedness Incurred on or
after the Issue Date will be determined after giving effect to the application
of proceeds from the Incurrence of such Goodman Fielder Acquisition
Indebtedness; or (ii) Indebtedness of the Company or any of its Subsidiaries in
an aggregate amount not to exceed A$115.0 million
21
Incurred in connection with the Goodman Fielder Acquisition and consisting of an
asset sale bridge facility intended to be repaid with proceeds from the sale by
Goodman Fielder of its Leiner Davis Gelatin business.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness of any Person
and any obligation, direct or indirect, contingent or otherwise, of such Person:
(1) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness of such Person (whether
arising by virtue of partnership arrangements, or by agreements to
keep-well, to purchase assets, goods, securities or services, to
take-or-pay or to maintain financial statement conditions or
otherwise); or
(2) entered into for the purpose of assuring in any other
manner the obligee of such Indebtedness of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in
part);
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Guarantor" means the Company or any Subsidiary Guarantor as
defined under the indenture dated June 21, 2002, governing the Existing 9 3/4%
Senior Subordinated Notes.
"Guaranty" means the Company Guaranty or any Subsidiary
Guaranty.
"Guaranty Agreement" means a supplemental indenture, in
substantially the form included as Exhibit 1 to this Indenture, pursuant to
which a Subsidiary Guarantor Guarantees the Issuers' obligations with respect to
the Securities on the terms provided for in this Indenture.
"Hedging Obligations" of any Person means the obligations of
such Person pursuant to any Interest Rate Agreement, Commodity Agreement or
Currency Agreement.
22
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
"Incur" means issue, assume, Guarantee, incur or otherwise
become liable for; provided, however, that any Indebtedness or Capital Stock of
a Person existing at the time such Person becomes a Restricted Subsidiary
(whether by merger, consolidation, acquisition or otherwise) shall be deemed to
be Incurred by such Person at the time it becomes a Restricted Subsidiary. The
term "Incurrence" when used as a noun shall have a correlative meaning. Solely
for purposes of determining compliance with Section 4.03:
(1) amortization of debt discount or the accretion of
principal with respect to a non-interest bearing or other discount
security;
(2) the accrual or capitalization of interest;
(3) the payment of regularly scheduled interest in the form of
additional Indebtedness of the same instrument or the payment of
regularly scheduled dividends on Capital Stock in the form of
additional Capital Stock of the same class and with the same terms; and
(4) the obligation to pay a premium in respect of Indebtedness
arising in connection with the issuance of a notice of redemption or
making of a mandatory offer to purchase such Indebtedness
shall not be deemed to be the Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person on any date
of determination (without duplication):
(1) the principal in respect of (A) indebtedness of such
Person for money borrowed and (B) indebtedness evidenced by notes,
debentures, bonds or other similar instruments for the payment of which
such Person is responsible or liable, including, in each case, any
premium on such indebtedness to the extent such premium has become due
and payable;
23
(2) all Capital Lease Obligations of such Person and all
Attributable Debt in respect of Sale/Leaseback Transactions entered
into by such Person;
(3) all obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations
of such Person and all obligations of such Person under any title
retention agreement (but excluding trade accounts payable arising in
the ordinary course of business);
(4) all obligations of such Person for the reimbursement of
any obligor on any letter of credit, banker's acceptance or similar
credit transaction (other than obligations with respect to letters of
credit securing obligations (other than obligations described in
clauses (1) through (3) above) entered into in the ordinary course of
business of such Person to the extent such letters of credit are not
drawn upon or, if and to the extent drawn upon, such drawing is
reimbursed no later than the tenth Business Day following payment on
the letter of credit);
(5) the amount of all obligations of such Person with respect
to the redemption, repayment or other repurchase of any Capital Stock
of such Person or any Subsidiary of such Person or that are determined
by the value of such Capital Stock, the principal amount of such
Capital Stock to be determined in accordance with this Indenture;
(6) all obligations of the type referred to in clauses (1)
through (5) of other Persons and all dividends of other Persons for the
payment of which, in either case, such Person is responsible or liable,
directly or indirectly, as obligor, guarantor or otherwise, including
by means of any Guarantee;
(7) all obligations of the type referred to in clauses (1)
through (6) of other Persons secured by any Lien on any property or
asset of such Person (whether or not such obligation is assumed by such
Person), the amount of such obligation being deemed to be the lesser of
the value of such property or assets and the amount of the obligation
so secured; and
24
(8) to the extent not otherwise included in this definition,
Hedging Obligations of such Person;
provided, however, that Capital Notes or Capital Securities of such Person shall
not be Indebtedness of such Person.
Notwithstanding the foregoing, in connection with the purchase
by the Company or any Restricted Subsidiary of any business, the term
"Indebtedness" shall exclude post-closing payment adjustments to which the
seller may become entitled to the extent such payment is determined by a final
closing balance sheet or such payment depends on the performance of such
business after the closing; provided, however, that, at the time of closing, the
amount of any such payment is not determinable and, to the extent such payment
thereafter becomes fixed and determined, the amount is paid within 60 days
thereafter.
The amount of Indebtedness of any Person at any date shall be
(A) the outstanding balance at such date of all unconditional obligations as
described above, (B) the maximum liability, upon the occurrence of the
contingency giving rise to the obligation, of any contingent obligations at such
date, and (C) in the case of any Indebtedness consisting of Hedging Obligations,
the net amount payable if the related Interest Rate Agreement, Commodity
Agreement or Currency Agreement were terminated at that time; provided, however,
that in the case of Indebtedness sold at a discount, the amount of such
Indebtedness at any time shall be the accreted value thereof at such time.
"Indenture" means this Indenture as amended or supplemented
from time to time.
"Independent Qualified Party" means an investment banking
firm, accounting firm or appraisal firm of national standing in any jurisdiction
in which the Company is incorporated; provided, however, that such firm is not
an Affiliate of the Company.
"Interest Rate Agreement" means in respect of a Person any
interest rate swap agreement, interest rate cap agreement, interest rate collar
agreement or other financial agreement or arrangement designed to protect such
Person against or manage exposure to fluctuations in interest rates.
25
"Investment" in any Person means any direct or indirect
advance, loan (other than advances to customers or suppliers in the ordinary
course of business that are recorded as accounts receivable, endorsements for
collection or deposits arising in to ordinary course of business) or other
extensions of credit (including by way of Guarantee or similar arrangement) or
capital contribution to (by means of any transfer of cash or other property to
others or any payment for property or services for the account or use of
others), or any purchase or acquisition of Capital Stock, Indebtedness or other
similar instruments issued by such Person. Except as otherwise provided for
herein, the amount of an Investment shall be its fair value at the time the
Investment is made and without giving effect to subsequent changes in value.
For purposes of the definition of "Unrestricted Subsidiary",
the definition of "Restricted Payment" and Section 4.04:
(1) "Investment" shall include the portion (proportionate to
the Company's equity interest in such Subsidiary) of the fair market
value of the net assets of any Subsidiary of the Company at the time
that such Subsidiary is designated an Unrestricted Subsidiary;
provided, however, that upon a redesignation of such Subsidiary as a
Restricted Subsidiary, the Company shall be deemed to continue to have
a permanent "Investment" in an Unrestricted Subsidiary equal to an
amount (if positive) equal to (A) the Company's "Investment" in such
Subsidiary at the time of such redesignation less (B) the portion
(proportionate to the Company's equity interest in such Subsidiary) of
the fair market value of the net assets of such Subsidiary at the time
of such redesignation; and
(2) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its fair market value at the time of such
transfer, in each case as determined in good faith by the Board of
Directors of the Company.
"Issue Date" means the date on which the Securities are
originally issued.
26
"Issuer Order" means a written request or order signed in the
name of the Issuers by two of the Officers of each Issuer.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or other
title retention agreement or lease in the nature thereof).
"Net Available Cash" from an Asset Disposition means cash
payments received therefrom (including any cash payments received by way of
deferred payment of principal pursuant to a note or installment receivable or
otherwise and proceeds from the sale or other disposition of any securities
received as consideration, but only as and when received, but excluding any
other consideration received in the form of assumption by the acquiring Person
of Indebtedness or other obligations relating to such properties or assets or
received in any other non-cash form), in each case net of:
(1) all legal, title and recording tax expenses, commissions
and other fees and expenses incurred in connection with such Asset
Disposition (including fees and expenses of counsel, investment
bankers, consultants and accountants), and all Federal, state,
provincial, foreign and local taxes required to be accrued as a
liability under GAAP, as a consequence of such Asset Disposition;
(2) all payments made on any Indebtedness which is secured by
any assets subject to such Asset Disposition, in accordance with the
terms of any Lien upon or other security agreement of any kind with
respect to such assets, or which must by its terms, or in order to
obtain a necessary consent to such Asset Disposition, or by applicable
law, be repaid out of the proceeds from such Asset Disposition;
(3) all distributions and other payments required to be made
to minority interest holders in Restricted Subsidiaries as a result of
such Asset Disposition; and
(4) the deduction of appropriate amounts provided by the
seller as a reserve, in accordance with GAAP, against any liabilities
associated with the property
27
or other assets disposed in such Asset Disposition and retained by the
Company or any Restricted Subsidiary after such Asset Disposition,
including pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Disposition.
"Net Cash Proceeds", with respect to any issuance or sale of
Capital Stock (including upon exercise of Company Options) or Indebtedness,
means the cash proceeds of such issuance or sale net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
"Obligations" means, with respect to any Indebtedness, all
obligations for principal, premium, interest, penalties, fees, indemnifications,
reimbursements, and other amounts payable pursuant to the documentation
governing such Indebtedness.
"Officer" means, with respect to any Person, the Chairman of
the Board, any director, the Chief Executive Officer, the Chief Financial
Officer and the Secretary of such Person.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Officers of such Person.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company.
"Permitted Holders" means Graeme Hart (or, in the event of his
incompetence or death, his estate, heirs, executor, administrator, committee or
other personal representative (collectively, "heirs")) or any Person controlled,
directly or indirectly, by Graeme Hart or his heirs or any trust for the benefit
of Graeme Hart or his heirs.
"Permitted Investment" means an Investment by the Company or
any Restricted Subsidiary in:
28
(1) the Company, a Restricted Subsidiary or a Person that
will, upon the making of such Investment, become a Restricted
Subsidiary;
(2) another Person if, as a result of such Investment, such
other Person is merged or consolidated with or into, or transfers or
conveys all or substantially all its assets to, the Company or a
Restricted Subsidiary;
(3) cash and Temporary Cash Investments;
(4) receivables owing to the Company or any Restricted
Subsidiary if created or acquired in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms;
provided, however, that such trade terms may include such concessionary
trade terms as the Company or any such Restricted Subsidiary deems
reasonable under the circumstances;
(5) payroll, travel and similar advances to cover matters that
are expected at the time of such advances ultimately to be treated as
expenses for accounting purposes and that are made in the ordinary
course of business;
(6) loans or advances to employees that are approved in good
faith by a majority of the Board of Directors of the Company in an
amount not to exceed US$5.0 million outstanding at any one time;
(7) stock, obligations or securities received in compromise or
settlement of debts created in the ordinary course of business and
owing to the Company or any Restricted Subsidiary or in satisfaction of
judgments;
(8) any Person to the extent such Investment represents the
non-cash portion of the consideration received for an (a) Asset
Disposition as permitted pursuant to Section 4.06 or (b) a disposition
not constituting an Asset Disposition by virtue of clause (D) of the
definition of Asset Disposition;
(9) any Person where such Investment was acquired by the
Company or any of its Restricted Subsidiaries
29
(a) in exchange for any other Investment or accounts receivable held by
the Company or any such Restricted Subsidiary in connection with or as
a result of a bankruptcy, workout, reorganization or recapitalization
of the issuer of such other Investment or accounts receivable or (b) as
a result of a foreclosure by the Company or any of its Restricted
Subsidiaries with respect to any secured Investment or other transfer
of title with respect to any secured Investment in default;
(10) any Person to the extent such Investments consist of
prepaid expenses, negotiable instruments held for collection and lease,
utility and workers' compensation, performance and other similar
deposits made in the ordinary course of business by the Company or any
Restricted Subsidiary;
(11) any Person to the extent such Investments consist of
Hedging Obligations otherwise permitted under Section 4.03;
(12) any Person to the extent such Investments consist of the
Company or a Restricted Subsidiary funding a benefit plan for employees
of the Company and the Restricted Subsidiaries;
(13) Investments in a Securitization Subsidiary in connection
with and to facilitate any Permitted Receivables Financing, which
Investments are customary for such transactions;
(14) Investments in any Person that, as of (i) its most recent
four consecutive fiscal quarters ending at least 45 days prior to the
date of such Investment or (ii) if quarterly financial information for
such Person is available for the immediately preceding fiscal quarter,
its most recent four consecutive fiscal quarters, derived a majority of
its revenue from a Related Business, if;
(A) at the time of making such Investment, the
Company would have been permitted to Incur an additional
US$1.00 of Indebtedness pursuant to Section 4.03(a) without a
Leverage Default having occurred; and
30
(B) the aggregate amount of all such Investments,
when taken together with all other Investments made pursuant
to this clause (14) (provided that any Investment previously
made pursuant to this clause (14) shall be deemed not to have
been made under this clause (14) if, on the date of an
Investment that is meant to qualify under this clause (14),
such previous Investment would constitute an Investment in a
Restricted Subsidiary), do not exceed in the aggregate 25% of
Total Assets less, in the event that, at any time of any
determination under this clause (14), Goodman Fielder and its
Subsidiaries are designated as Unrestricted Subsidiaries, the
amount of the Company's Investment therein;
(15) Persons to the extent such Investments are in existence
on the Issue Date or Investments of Goodman Fielder and its
Subsidiaries in existence on the date Goodman Fielder become a
Restricted Subsidiary, and (a) any extension, renewal or replacement of
any such Investment in the same Person on terms and conditions no less
favorable in any material respect than the Investment being renewed or
replaced or (b) any Investment made in exchange for any such
Investment;
(16) Investments having an aggregate fair market value
(measured on the date each such investment was made and without giving
effect to subsequent changes in value), when taken together with all
other Investments made pursuant to this clause (16) that are at the
time outstanding, not to exceed US$20.0 million; and
(17) the Capital Stock of Goodman Fielder.
"Permitted Receivables Financing" means any receivables
financing facility or arrangement pursuant to which a Securitization Subsidiary
purchases or otherwise acquires accounts receivable from the Company or any
Restricted Subsidiary and enters into a third party financing thereof on
customary market terms that the Board of Directors has concluded are fair to the
Company and its Restricted Subsidiaries.
31
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any
Person, means Capital Stock of any class or classes (however designated) which
is preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over shares of Capital Stock of any other class of
such Person.
"principal" of a Security means the principal of the Security
plus the premium, if any, payable on the Security which is due or overdue or is
to become due at the relevant time.
"Purchase Money Indebtedness" means any Indebtedness incurred
by a Person to finance the cost (including cost of construction) or acquisition
of any property or business.
"Qualified Equity Issuance" means a primary offering of (i)
ordinary shares or comparable securities of the Company, including an issuance
of ordinary shares or comparable securities of the Company upon exercise of
Company Options or (ii) Preferred Stock of the Company that is mandatorily
convertible into ordinary shares or comparable securities of the Company;
provided, however, that in either case any such offering results in at least
US$10 million of net cash proceeds to the Company; provided further, however,
that the exercise of Company Options shall be deemed to be such an offering.
"Refinance" means, in respect of any Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue other Indebtedness in exchange or replacement for, such Indebtedness.
"Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that Refinances
any Indebtedness of the Company or any Restricted Subsidiary existing on the
Issue Date or Incurred in compliance with this Indenture, including
32
Indebtedness that Refinances Refinancing Indebtedness; provided, however, that:
(1) such Refinancing Indebtedness has a Stated Maturity no
earlier than the date that is the earlier of the Stated Maturity of the
Indebtedness being Refinanced and the first anniversary of the Stated
Maturity of the Securities;
(2) such Refinancing Indebtedness has an Average Life at the
time such Refinancing Indebtedness is Incurred that is equal to or
greater than the Average Life of the Indebtedness being Refinanced; and
(3) such Refinancing Indebtedness has an aggregate principal
amount (or if Incurred with original issue discount, an aggregate issue
price) that is equal to or less than the aggregate principal amount (or
if Incurred with original issue discount, the aggregate accreted value)
then outstanding or committed (plus fees and expenses, including any
premium and defeasance costs) under the Indebtedness being Refinanced;
provided further, however, that Refinancing Indebtedness shall not include (A)
Indebtedness of any Subsidiary that Refinances Indebtedness of the Company
(except to the extent that such Refinancing Indebtedness results in the
discharge or termination of a Guarantee of Indebtedness of the Company) or (B)
Indebtedness of the Company or a Restricted Subsidiary that Refinances
Indebtedness of an Unrestricted Subsidiary.
"Related Business" means (i) any business in which the Company
was engaged on the Issue Date, (ii) any business involving the manufacture or
distribution of food or beverage products or packaged goods or (iii) any
business related, ancillary or complementary to any of the foregoing.
"Representative" means, with respect to a Person, any trustee,
agent or representative (if any) for an issue of Senior Indebtedness of such
Person.
"Responsible Officer" means, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice
33
president, assistant secretary, assistant treasurer, trust officer or any other
officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the Time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such person's
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.
"Restricted Payment" with respect to any Person means:
(1) the declaration or payment of any dividends, interest or
any other distributions of any sort in respect of its Capital Stock,
Capital Notes or Capital Securities (including any payment in
connection with any merger or consolidation involving such Person) or
similar payment to the direct or indirect holders of its Capital Stock,
Capital Notes or Capital Securities (other than dividends, interest or
distributions payable solely in its Capital Stock (other than
Disqualified Stock), Capital Notes or Capital Securities and dividends,
interest or distributions payable solely to the Company or a Restricted
Subsidiary, and other than pro rata dividends, interest or other
distributions made by a Subsidiary that is not a Wholly Owned
Subsidiary to minority stockholders (or owners of an equivalent
interest in the case of a Subsidiary that is an entity other than a
corporation));
(2) the purchase, redemption or other acquisition or
retirement for value of any Capital Stock of the Company, any Capital
Notes or any Capital Securities of the Company held by any Person or of
any Capital Stock or Capital Securities of a Restricted Subsidiary held
by any Affiliate of the Company (other than a Restricted Subsidiary),
including in connection with any merger or consolidation and including
the exercise of any option to exchange any Capital Stock (other than
into Capital Stock of the Company that is not Disqualified Stock);
(3) the purchase, repurchase, redemption, defeasance or other
acquisition or retirement for
34
value, prior to scheduled maturity, scheduled repayment or scheduled
sinking fund payment of any Subordinated Obligations of such Person
(other than the purchase, repurchase or other acquisition of
Subordinated Obligations purchased in anticipation of satisfying a
sinking fund obligation, principal installment or final maturity, in
each case due within one year of the date of such purchase, repurchase
or other acquisition); or
(4) the making of any Investment (other than a Permitted
Investment) in any Person.
"Restricted Subsidiary" means the Issuers and each other
Subsidiary of the Company that is not an Unrestricted Subsidiary.
"Revolving Credit Facility" means the revolving credit
facility contained in any Credit Agreement.
"Sale/Leaseback Transaction" means any arrangement with any
Person providing for the leasing by the Company or any Restricted Subsidiary of
the Company, for a period of more than three years, of any real or tangible
personal property, which property has been or is to be sold or transferred by
the Company or such Subsidiary to such Person in contemplation of such leasing.
"SEC" means the U.S. Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of the Company
secured by a Lien.
"Securities" means the Securities issued under this Indenture.
"Securities Act" means the U.S. Securities Act of 1933.
"Securitization Subsidiary" means a Subsidiary of the Company:
(1) that is designated a "Securitization Subsidiary" by the
Board of Directors;
35
(2) that does not engage in activities other than Permitted
Receivables Financing and any activity necessary or incidental thereto;
(3) no portion of the Indebtedness or any other obligation,
contingent or otherwise, of which
(A) is Guaranteed by the Company or any Restricted
Subsidiary,
(B) is recourse to or obligates the Company or any
other Restricted Subsidiary in any way, or
(C) subjects any property or asset of the Company or
any other Restricted Subsidiary, directly or indirectly,
contingently or otherwise, to the satisfaction thereof; and
(4) with respect to which neither the Company nor any
Restricted Subsidiary has any obligation to maintain or preserve its
financial condition or cause it to achieve certain levels of operating
results;
other than, in respect of clauses (3) and (4), pursuant to customary
representations, warranties, covenants and indemnities entered into in
connection with a Permitted Receivables Financing.
"Securities Guaranties" means the Company Guaranty and the
Subsidiary Guaranties.
"Securities Guarantors" means the Company and the Subsidiary
Guarantors.
"Senior Indebtedness" means with respect to any Person:
(1) Indebtedness of such Person, whether outstanding on the
Issue Date or thereafter Incurred; and
(2) all other Obligations of such Person (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to such Person whether or not post-filing
interest is allowed in such proceeding) in respect of Indebtedness
described in clause (1) above
36
unless, in the case of clauses (1) and (2), in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is provided
that such Indebtedness or other obligations are subordinate or pari passu in
right of payment to the Securities or the Subsidiary Guaranty of such Person, as
the case may be; provided, however, that Senior Indebtedness shall not include:
(1) any obligation of such Person to any Subsidiary of such
Person;
(2) any liability for Federal, state, local or other taxes
owed or owing by such Person;
(3) any accounts payable or other liability to trade creditors
arising in the ordinary course of business (including guarantees
thereof or instruments evidencing such liabilities);
(4) any Indebtedness or other Obligation of such Person which
is subordinate or junior in any respect to any other Indebtedness or
other Obligation of such Person; or
(5) that portion of any Indebtedness which at the time of
Incurrence is Incurred in violation of this Indenture.
"Senior Subordinated Indebtedness" means, with respect to a
Person, the Securities (in the case of the Issuers), the Company Guaranty (in
the case of the Company), the Subsidiary Guaranty (in the case of a Subsidiary
Guarantor) and any other Indebtedness of such Person that specifically provides
that such Indebtedness is to rank pari passu with the Securities, the Company
Guaranty or such Subsidiary Guaranty, as the case may be, in right of payment
and is not subordinated by its terms in right of payment to any Indebtedness or
other obligation of such Person which is not Senior Indebtedness of such Person.
For the avoidance of doubt, the Securities, the Company Guaranty and each
Subsidiary Guaranty are to rank pari passu with the Securities, the Company
Guaranty and the Subsidiary Guaranties under, and as defined in, the indenture
for the Existing 9 3/4% Senior Subordinated Notes.
37
"Significant Subsidiary" means any Restricted Subsidiary that
would be a "Significant Subsidiary" of the Company within the meaning of Rule
1-02 under Regulation S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency unless such contingency has occurred).
"Subordinated Obligation" means, with respect to a Person, any
Indebtedness of such Person (whether outstanding on the Issue Date or thereafter
Incurred) which is subordinate or junior in right of payment to the Securities
(in the case of the Issuers), the Company Guaranty (in the case of the Company)
or a Subsidiary Guaranty (in the case of a Subsidiary Guarantor), as the case
may be, pursuant to a written agreement to that effect.
"Subsidiary" means, with respect to any Person, any
corporation, association, partnership or other business entity of which more
than 50% of the total voting power of shares of Voting Stock is at the time
owned or controlled, directly or indirectly, by:
(1) such Person;
(2) such Person and one or more Subsidiaries of such Person;
or
(3) one or more Subsidiaries of such Person.
"Subsidiary Guarantor" means each Subsidiary of the Company
that executes this Indenture identified as a Subsidiary Guarantor on the
signature pages hereof and each other Subsidiary of the Company that thereafter
Guarantees the Securities pursuant to the terms of this Indenture.
"Subsidiary Guaranty" means a Guarantee by a Subsidiary
Guarantor of the Issuers' obligations with respect to the Securities.
38
"Temporary Cash Investments" means any of the following:
(1) (a) any investment in direct obligations of the United
States of America, Australia, New Zealand, any member state of the
European Union or Euros, (b) any Investment in direct obligations of
any other state or country in which any Restricted Subsidiary has
operations, or (c) any Investment in direct obligations of any agency
of any of the foregoing or obligations guaranteed by any of the
foregoing or any agency thereof;
(2) investments in demand and time deposit accounts,
certificates of deposit and money market deposits maturing within one
year of the date of acquisition thereof and overnight bank deposits, in
each case with or issued by a bank or trust company which is organized
under the laws of the United States of America, any State thereof or
any foreign country recognized by the United States of America, which
bank or trust company, if organized under the laws of Australia, shall
be an "authorized deposit-taking institution" as defined in the Banking
Act 1959 (Commonwealth), and which bank or trust company has capital,
surplus and undivided profits aggregating in excess of US$50.0 million
(or the foreign currency equivalent thereof) and whose outstanding debt
(or that of its parent) which is rated "A" (or such similar equivalent
rating) or higher by at least one nationally recognized statistical
rating organization (as defined in Rule 436 under the Securities Act)
or any money-market fund sponsored by a registered broker dealer or
mutual fund distributor;
(3) repurchase obligations with a term of not more than 30
days for underlying securities of the types described in clause (1)
above entered into with a bank meeting the qualifications described in
clause (2) above;
(4) investments in commercial paper, maturing not more than
270 days after the date of acquisition, issued by a corporation (other
than an Affiliate of the Company) organized and in existence under the
laws of the United States of America or any foreign country
39
recognized by the United States of America with a rating at the time as
of which any investment therein is made of "P-1" (or higher) according
to Moody's Investors Service, Inc. or "A-1" (or higher) according to
Standard and Poor's Ratings Group; and
(5) investments in securities with maturities of 270 days or
less from the date of acquisition issued or fully guaranteed by any
state, commonwealth or territory of the United States of America or the
Commonwealth of Australia or any state or territory of Australia, or by
any political subdivision or taxing authority thereof, and rated at
least "A-2" by Standard & Poor's Ratings Group or "P-2" by Moody's
Investors Service, Inc.
"Term Loan Facility" means the term loan facility contained in
any Credit Agreement.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the Issue Date.
"Total Assets" means the total consolidated assets of the
Company and its Restricted Subsidiaries.
"Trustee" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"Unrestricted Subsidiary" means:
(1) any Subsidiary of the Company that at the time of
determination shall be designated an Unrestricted Subsidiary in the
manner provided below; and
(2) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors of the Company (or, if the Subsidiary to be so designated
has total assets of US$1,000 or less, the Chief Financial Officer of the
Company) may designate any Subsidiary of the Company (including any newly
acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless
such Subsidiary or any of
40
its Subsidiaries owns any Capital Stock or Indebtedness of, or holds any Lien on
any property of, the Company or any other Restricted Subsidiary; provided,
however, that either (A) the Subsidiary to be so designated has total assets of
US$1,000 or less, (B) if such Subsidiary has assets greater than US$1,000, such
designation would be permitted under Section 4.04 or (C) such Subsidiary is
Goodman Fielder.
The Board of Directors of the Company may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided, however, that
immediately after giving effect to such designation (A) the Company could Incur
US$1.00 of additional Indebtedness under Section 4.03(a) without a Leverage
Default having occurred and (B) no Default shall have occurred and be
continuing. Any such designation by the Board of Directors of the Company shall
be evidenced to the Trustee by promptly filing with the Trustee a copy of the
resolution of the Board of Directors of the Company giving effect to such
designation and an Officers' Certificate of the Company certifying that such
designation complied with the foregoing provisions.
"U.S. Dollar Equivalent" means with respect to any monetary
amount in a currency other than U.S. dollars, at any time for determination
thereof, the amount of U.S. dollars obtained by converting such foreign currency
involved in such computation into U.S. dollars at the spot rate for the purchase
of U.S. dollars with the applicable foreign currency as published in The Wall
Street Journal in the "Exchange Rates" column under the heading "Currency
Trading" on the date two Business Days prior to such determination.
Except as described in Section 4.03, whenever it is necessary
to determine whether the Company, an Issuer or any Subsidiary Guarantor has
complied with any covenant in this Indenture or a Default has occurred and an
amount is expressed in a currency other than U.S. dollars, such amount shall be
treated as the U.S. Dollar Equivalent determined as of the date such amount is
initially determined in such currency.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof)
41
for the payment of which the full faith and credit of the United States of
America is pledged and which are not callable at the issuer's option.
"Voting Stock" of a Person means all classes of Capital Stock
or other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof.
"Wholly Owned Subsidiary" means a Restricted Subsidiary all
the Capital Stock of which (other than directors' qualifying shares) is owned by
the Company or one or more Wholly Owned Subsidiaries.
SECTION 1.02. Other Definitions.
Defined in
Term Section
---- -------
"Additional Amounts"..................................... 4.14
"Affiliate Transaction".................................. 4.08
"Appendix"............................................... 2.01
"Bankruptcy Law"......................................... 6.01
"Blockage Notice"........................................ 10.03
"Change of Control Offer"................................ 4.10(b)
"covenant defeasance option"............................. 8.01(b)
"Custodian".............................................. 6.01
"Event of Default"....................................... 6.01
"Exchange Securities".................................... Appendix
"Guarantied Obligations"................................. 11.01
"Indebtedness Repurchase Event".......................... 4.11(a)
"Initial Securities"..................................... Appendix
"legal defeasance option"................................ 8.01(b)
"Legal Holiday".......................................... 13.08
"Leverage Default"....................................... 4.11(a)
"Non-Consummation Event"................................. 4.09(a)
"Non-Consummation Trigger Date".......................... 4.09(a)
"Offer".................................................. 4.07(b)
"Offer Amount"........................................... 4.07(c)(2)
"Offer Period"........................................... 4.07(c)(2)
"pay the Securities"..................................... 10.03
"Paying Agent"........................................... 2.03
"Payment Blockage Period"................................ 10.03
"Payment Default"........................................ 10.03
42
"Private Exchange Security".............................. Appendix
"Purchase Date".......................................... 4.07(c)(1)
"Registrar".............................................. 2.03
"Registration Rights Agreement".......................... Appendix
"Relevant Taxing Jurisdiction"........................... 4.14
"Successor Company"...................................... 5.01
"Successor Issuer"....................................... 5.01
"Taxes".................................................. 4.14
SECTION 1.03. Incorporation by Reference of Trust Indenture
Act. This Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC;
"indenture securities" means the Securities;
"indenture security holder" means a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company and
any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule and
are not otherwise defined herein have the meanings assigned to them by such
definitions.
SECTION 1.04. Rules of Construction. Unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
43
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the
plural include the singular;
(6) unsecured Indebtedness shall not be deemed to be
subordinate or junior to Secured Indebtedness merely by virtue of its
nature as unsecured Indebtedness and any Secured Indebtedness shall not
be deemed to be subordinate or junior to any other Secured Indebtedness
merely because it has a junior priority with respect to the same
collateral;
(7) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof
that would be shown on a balance sheet of the issuer dated such date
prepared in accordance with GAAP;
(8) the principal amount of any Preferred Stock shall be (i)
the maximum liquidation value of such Preferred Stock or (ii) the
maximum mandatory redemption or mandatory repurchase price with respect
to such Preferred Stock, whichever is greater; and
(9) all references to the date the Securities were originally
issued shall refer to the Issue Date.
ARTICLE 2
The Securities
SECTION 2.01. Form and Dating. Provisions relating to the
Initial Securities, the Private Exchange Securities and the Exchange Securities
are set forth in the Rule 144A/Regulation S Appendix attached hereto (the
"Appendix") which is hereby incorporated in and expressly made part of this
Indenture. The Initial Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit 1 to the Appendix
which is hereby incorporated in and expressly made a part of this Indenture. The
Exchange Securities, the Private Exchange Securities and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit A,
which is hereby incorporated in and expressly
44
made a part of this Indenture. The Securities may have notations, legends or
endorsements required by law, stock exchange rule, agreements to which the
Issuers are subject, if any, or depository procedure or usage (provided that any
such notation, legend or endorsement is in a form acceptable to the Issuers).
Each Security shall be dated the date of its authentication. The terms of the
Securities set forth in the Appendix and Exhibit A are part of the terms of this
Indenture.
SECTION 2.02. Execution and Authentication. Two Officers of
each Issuer, or an Officer of each Issuer and an Assistant Secretary of each
Issuer, shall sign the Securities for each Issuer by manual or facsimile
signature. The Issuers' seal shall be reproduced on the Securities and may be in
facsimile form.
If an Officer of an Issuer or Assistant Secretary of an Issuer
whose signature is on a Security no longer holds that office at the time the
Trustee authenticates the Security, the Security shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
Each Security shall be dated the date of its authentication.
On the Issue Date, the Trustee shall authenticate and deliver
US$210 million of 10 3/4% Senior Subordinated Notes due 2011 and, at any time
and from time to time thereafter, the Trustee shall authenticate and deliver
Securities for original issue in an aggregate principal amount specified in such
order, in each case upon a written order of the Issuers signed, for each Issuer,
by two Officers of such Issuer or by an Officer of such Issuer and either an
Assistant Treasurer or an Assistant Secretary of such Issuer. Such order shall
specify the amount of the Securities to be authenticated and the date on which
the original issue of Securities is to be authenticated and, in the case of an
issuance of Additional Securities pursuant to Section 2.13 after the Issue Date,
shall certify that such issuance is in compliance with Section 4.03.
45
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Securities. Unless limited by the
terms of such appointment, an authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Registrar, Paying Agent or agent
for service of notices and demands.
SECTION 2.03. Registrar and Paying Agent. The Issuers shall
maintain or designate an office or agency where Securities may be presented for
registration of transfer or for exchange (the "Registrar") and an office or
agency where Securities may be presented for payment (the "Paying Agent"). The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Issuers may have one or more co-registrars and one or more
additional paying agents. The term "Paying Agent" includes any additional paying
agent.
The Issuers shall enter into an appropriate agency agreement
with any Registrar, Paying Agent or co-registrar not a party to this Indenture,
which shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Issuers shall notify
the Trustee of the name and address of any such agent. If the Issuers fail to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07. The
Issuers, the Company or any Wholly Owned Subsidiary may act as Paying Agent,
Registrar, co-registrar or transfer agent.
The Issuers initially appoint the Trustee as Registrar and
Paying Agent in connection with the Securities.
SECTION 2.04. Paying Agent to Hold Money in Trust. No later
than 10:00 a.m. New York City time on each due date of the principal and
interest on any Security, the Issuers shall deposit with the Paying Agent a sum
sufficient to pay such principal and interest when so becoming due. The Issuers
shall require each Paying Agent (other than the Trustee) to agree in writing
that the Paying Agent shall hold in trust for the benefit of
46
Securityholders or the Trustee all money held by the Paying Agent for the
payment of principal of or interest on the Securities and shall notify the
Trustee of any default by the Issuers in making any such payment. If an Issuer,
the Company or a Wholly Owned Subsidiary acts as Paying Agent, it shall
segregate the money held by it as Paying Agent and hold it as a separate trust
fund. The Issuers at any time may require a Paying Agent to pay all money held
by it to the Trustee and to account for any funds disbursed by the Paying Agent.
Upon complying with this Section, the Paying Agent shall have no further
liability for the money delivered to the Trustee.
SECTION 2.05. Securityholder Lists. The Trustee shall preserve
in as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Issuers shall furnish or cause the Registrar to furnish to the
Trustee, in writing at least five Business Days before each interest payment
date and at such other times as the Trustee may request in writing, a list in
such form and as of such date as the Trustee may reasonably require of the names
and addresses of Securityholders.
SECTION 2.06. Transfer and Exchange. The Securities shall be
issued in registered form and shall be transferable only upon the surrender of a
Security for registration of transfer. When a Security is presented to the
Registrar or a co-registrar with a request to register a transfer, the Registrar
shall register the transfer as requested if the requirements of this Indenture
and Section 8-401(a) of the Uniform Commercial Code are met. When Securities are
presented to the Registrar or a co-registrar with a request to exchange them for
an equal principal amount of Securities of other denominations, the Registrar
shall make the exchange as requested if the same requirements are met. No
service charge shall be made for any registration of transfer or exchange or
redemption of the Securities, but the Issuers may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge payable in
connection therewith (other than any such transfer taxes or other similar
governmental charge payable upon exchanges pursuant to Section 2.09, 3.06, 4.06,
4.09, 4.10, 4.11 or 9.05). The Registrar need not register the transfer of or
exchange any Securities
47
selected for redemption (except, in the case of a Security to be redeemed in
part, the portion of the Security not to be redeemed) or any Securities for a
period of 15 days before a selection of Securities to be redeemed or 15 days
before an interest payment date.
SECTION 2.07. Replacement Securities. If a mutilated Security
is surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Issuers shall issue
and the Trustee shall authenticate a replacement Security if the requirements of
Section 8-405(a) of the Uniform Commercial Code are met and the Holder satisfies
any other reasonable requirements of the Trustee. If required by the Trustee or
the Issuers, such Holder shall furnish an affidavit of lost certificate and
indemnity bond or other indemnity sufficient in the judgment of the Issuers and
the Trustee to protect the Issuers, the Trustee, the Paying Agent, the Registrar
and any co-registrar from any loss which any of them may suffer if a Security is
replaced. The Issuers and the Trustee may charge the Holder for their expenses
in replacing a Security, including reasonable fees and expenses of counsel, and
for any tax imposed in replacing such Securities.
Every replacement Security is an additional obligation of the
Issuers.
SECTION 2.08. Outstanding Securities. Securities outstanding
at any time are all Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancelation and those described in
this Section as not outstanding. A Security does not cease to be outstanding
because an Issuer or an Affiliate of an Issuer holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases
to be outstanding unless the Trustee and the Issuers receive proof satisfactory
to them that the replaced Security is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date money
sufficient to pay all principal
48
and interest payable on that date with respect to the Securities (or portions
thereof) to be redeemed or maturing, as the case may be, and the Paying Agent is
not prohibited from paying such money to the Securityholders on that date
pursuant to the terms of this Indenture, then on and after that date such
Securities (or portions thereof) cease to be outstanding and interest on them
ceases to accrue.
SECTION 2.09. Temporary Securities. Until definitive
Securities are ready for delivery, the Issuers may prepare and the Trustee shall
authenticate temporary Securities. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that the Issuers
consider appropriate for temporary Securities. Without unreasonable delay, the
Issuers shall prepare and the Trustee shall authenticate definitive Securities
and deliver them in exchange for temporary Securities.
SECTION 2.10. Cancelation. The Issuers at any time may deliver
Securities to the Trustee for cancelation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall dispose of
all canceled Securities in accordance with its customary procedures. The Issuers
may not issue new Securities to replace Securities it has redeemed, paid or
delivered to the Trustee for cancelation.
SECTION 2.11. Defaulted Interest. If the Issuers default in a
payment of interest on the Securities, the Issuers shall pay defaulted interest
at the rate provided for in the Securities (plus interest on such defaulted
interest to the extent lawful) in any lawful manner. The Issuers may pay the
defaulted interest to the persons who are Securityholders on a subsequent
special record date. The Issuers shall fix or cause to be fixed any such special
record date and payment date to the reasonable satisfaction of the Trustee and
shall promptly mail to each Securityholder a notice that states the special
record date, the payment date and the amount of defaulted interest to be paid.
SECTION 2.12. CUSIP, ISIN and Common Code Numbers. The Issuers
in issuing the Securities may use
49
"CUSIP", "ISIN" and "Common Code" numbers (if then generally in use) and, if so,
the Trustee shall use "CUSIP", "ISIN" and "Common Code" numbers in notices of
redemption as a convenience to Holders; provided, however, that no
representation is hereby deemed to be made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
SECTION 2.13. Issuance of Additional Securities. The Issuers
shall be entitled, subject to the Company's compliance with Section 4.03, to
issue Additional Securities under this Indenture which shall have identical
terms as the Initial Securities issued on the Issue Date, other than with
respect to the date of issuance, the date from which interest will accrue
thereon, the issue price, the amount of interest payable upon a registration
default as provided under a registration rights agreement related thereto (and
if such Additional Securities shall be issued in the form of Exchange
Securities, other than with respect to transfer restrictions). The Initial
Securities issued on the Issue Date, any Additional Securities and all Exchange
Securities or Private Exchange Securities issued in exchange therefor shall be
treated as a single class for all purposes under this Indenture.
With respect to any Additional Securities, the Issuer, shall
set forth in a resolution of the Board of Directors and an Officers' Certificate
of the Issuers, a copy of each which shall be delivered to the Trustee, the
following information:
(1) the aggregate principal amount of such Additional
Securities to be authenticated and delivered pursuant to this
Indenture;
(2) the issue price, the issue date, the date from which
interest will accrue thereon and the CUSIP, ISIN and Common Code
numbers of such Additional Securities; provided, however, that no
Additional Securities may be issued at a price that would cause such
Additional Securities to have "original issue
50
discount" within the meaning of Section 1273 of the Code; and
(3) whether such Additional Securities shall be Transfer
Restricted Securities and issued in the form of Initial Securities as
set forth in the Appendix to this Indenture or shall be issued in the
form of Exchange Securities as set forth in Exhibit A.
ARTICLE 3
Redemption
SECTION 3.01. Notices to Trustee. If the Issuers or, in the
case of a redemption pursuant to paragraph 6 of the Securities, the Issuers, the
Company or the Subsidiary Guarantors, as applicable, elect to redeem Securities
pursuant to paragraph 5 or 6 of the Securities, they shall notify the Trustee in
writing of the redemption date, the principal amount of Securities to be
redeemed and the paragraph of the Securities pursuant to which the redemption
will occur.
The Issuers or, in the case of a redemption pursuant to
paragraph 6 of the Securities, the Issuers, the Company or the Subsidiary
Guarantors, as applicable, shall give each notice to the Trustee provided for in
this Section at least 35 but not more than 60 days before the redemption date
unless the Trustee consents to a shorter period. Such notice shall be
accompanied by an Officers' Certificate of Issuer, or, in the case of a
redemption pursuant to paragraph 6 of the Securities, the Issuers, the Company
or the Subsidiary Guarantors, as applicable, and an Opinion of Counsel from the
Issuers or, in the case of a redemption pursuant to paragraph 6 of the
Securities, the Issuers, the Company or the Subsidiary Guarantors, as
applicable, to the effect that such redemption will comply with the conditions
herein.
SECTION 3.02. Selection of Securities to Be Redeemed. If fewer
than all the Securities are to be redeemed, the Trustee shall select the
Securities to be redeemed on a pro rata basis, by lot or by a method that
complies with applicable legal and securities exchange requirements, if any, and
that the Trustee in its sole discretion shall deem to be fair and appropriate.
The
51
Trustee shall make the selection from outstanding Securities not previously
called for redemption. The Trustee may select for redemption portions of the
principal of Securities that have denominations larger than US$1,000. Securities
and portions of them the Trustee selects shall be in principal amounts of
US$1,000 or a whole multiple of US$1,000. Provisions of this Indenture that
apply to Securities called for redemption also apply to portions of Securities
called for redemption. The Trustee shall notify the Issuers promptly of the
Securities or portions of Securities to be redeemed.
SECTION 3.03. Notice of Redemption. At least 30 days but not
more than 60 days before a date for redemption of Securities, the Issuers shall
mail a notice of redemption by first-class mail to each Holder of Securities to
be redeemed at such Holder's registered address.
The notice shall identify the Securities to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(5) if fewer than all the outstanding Securities are to be
redeemed, the identification and principal amounts of the particular
Securities to be redeemed;
(6) that, unless the Issuers or, in the case of a redemption
pursuant to paragraph 6 of the Securities, the Issuers, the Company or
the Subsidiary Guarantors, as applicable, default in making such
redemption payment or the Paying Agent is prohibited from making such
payment pursuant to the terms of this Indenture, interest on Securities
(or portion thereof) called for redemption ceases to accrue on and
after the redemption date; and
52
(7) that no representation is made as to the correctness or
accuracy of the CUSIP, ISIN or Common Code numbers, if any, listed in
such notice or printed on the Securities.
At the Issuers' request, the Trustee shall give the notice of
redemption in the Issuers' name and at the Issuers' expense. In such event, the
Issuers shall provide the Trustee with the information required by this Section.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for redemption become due and payable on
the redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Securities called for redemption shall be
paid at the redemption price stated in the notice, plus accrued interest to the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the related interest payment date).
Failure to give notice or any defect in the notice to any Holder shall not
affect the validity of the notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price. No later than 10:00
a.m. New York City time on the redemption date, the Issuers or, in the case of a
redemption pursuant to paragraph 6 of the Securities, the Issuers, the Company
or the Subsidiary Guarantors, as applicable, shall deposit with the Paying Agent
(or, if an Issuer is the Paying Agent, shall segregate and hold in trust) money
sufficient to pay the redemption price of and accrued interest on all Securities
to be redeemed on that date other than Securities or portions of Securities
called for redemption which have been delivered by the Issuers to the Trustee
for cancelation. If the Issuers or, in the case of a redemption pursuant to
paragraph 6 of the Securities, the Issuers, the Company or the Subsidiary
Guarantors, as applicable, comply with this Section 3.05, then, unless the
payment of the redemption price is prohibited by the terms of this Indenture,
interest on the Securities to be redeemed will cease to accrue on and after the
redemption date, whether or not such Securities are presented for payment.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the
53
Issuers shall execute and the Trustee shall authenticate for the Holder (at the
Issuers' expense) a new Security equal in principal amount to the unredeemed
portion of the Security surrendered.
ARTICLE 4
Covenants
SECTION 4.01. Payment of Securities. The Issuers shall
promptly pay the principal of and interest on the Securities on the dates and in
the manner provided in the Securities and in this Indenture. Principal and
interest shall be considered paid on the date due if no later than 10:00 a.m.
New York City time on such date the Trustee or the Paying Agent holds in
accordance with this Indenture money sufficient to pay all principal and
interest then due and the Trustee or the Paying Agent, as the case may be, is
not prohibited from paying such money to the Securityholders on that date
pursuant to the terms of this Indenture.
The Issuers shall pay interest on overdue principal at the
rate specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. SEC Reports; Meetings with Holders of
Securities. The Company shall furnish to the Securityholders and the Trustee (1)
all annual and quarterly financial information that would be required to be
contained in a filing with the SEC on Form 20-F and 10-Q if the Company were
required to file such Forms, including a "Management's Discussion and Analysis
of Financial Condition and Results of Operations" and, with respect to the
annual financial information, a report thereon by the Company's certified
independent accountants; provided, however, if such financial information that
would be required to be contained in a filing with the SEC on Form 20-F is not
prepared in accordance with generally accepted accounting principles in the
United States, there shall be a reconciliation to such principles (including a
determination of EBITDA on such basis) included in such annual information; and
(2) all current reports that would be required to be filed with the SEC on Form
8-K if the
54
Company were required to file such reports (other than such reports that are
required as a result of Regulation S sales of equity securities), all such
information to be furnished at the time such filings would have been required
for a U.S. corporation; provided, however, that such quarterly financial
information shall be furnished within 45 days after the end of each of the first
three quarters. In addition, whether or not required by the rules and
regulations of the SEC, the Company shall file a copy of all such information
and reports with the SEC for public availability (unless the SEC will not accept
such filing). Notwithstanding any of the foregoing, if any Subsidiary
Guarantor's financial statements would be required to be included in the
financial statements filed or delivered pursuant to this Section 4.02 if the
Issuers were subject to Section 13(a) or 15(d) of the Exchange Act, the Issuers
shall not be required to file or furnish such financial statements.
At any time that any of the Company's Subsidiaries are
Unrestricted Subsidiaries and such Unrestricted Subsidiaries, considered in the
aggregate, would constitute a Significant Subsidiary of the Company as of the
date of such report, then the quarterly and annual financial information
required by the preceding paragraph shall include a reasonably detailed
presentation, either on the face of the financial statements or in the footnotes
thereto, and in "Management's Discussion and Analysis of Financial Condition and
Results of Operations", of the financial condition and results of operations of
the Company and its Restricted Subsidiaries separate from the financial
condition and results of operations of the Unrestricted Subsidiaries of the
Company.
In addition, the Company and the Issuers shall furnish to the
Securityholders and to prospective investors, upon the requests of such
Securityholders, any information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act so long as the Securities are not freely
transferable under the Securities Act. The Company and the Issuers also shall
comply with the other provisions of TIA Section 314(a).
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute
55
constructive notice of any information contained therein or determinable from
information contained therein, including the Issuers' compliance with any of its
covenants hereunder (as to which the Trustee is entitled to conclusively rely
exclusively on Officers' Certificates of the Company).
The Company shall, within 15 days after furnishing the annual
or quarterly financial information described in this Section 4.02, conduct a
meeting with Holders of Securities, by means of conference telephone or other
communications equipment through which all persons participating in the meeting
can hear each other, which meeting shall be attended by the Chief Executive
Officer or Chief Financial Officer of the Company, or both (or such other
Officers of the Company as are acting in such capacities at the time), and shall
be held at such time as is reasonably agreed upon by the Company and the Holders
of Securities. At each meeting, the Chief Executive Officer or Chief Financial
Officer of the Company, or both (or such other Officers of the Company as are
acting in such capacities at the time), shall discuss the financial performance
of the Company during the fiscal year or quarter, as applicable, as well as the
general state of the business and operations of the Company. The Company shall
provide the Holders of Securities and the trustee with notice of each meeting
(which notice may be given by press release or any other reasonable means of
public communication) no less than 5 days prior to such meeting, which notice
shall include the date and time of the meeting and the conference telephone or
other details for the meeting.
SECTION 4.03. Limitation on Indebtedness. (a) The Company
shall not, and shall not permit any Restricted Subsidiary to, Incur, directly or
indirectly, any Indebtedness; provided, however, that the Company, the Issuers
and the other Restricted Subsidiaries shall be entitled to Incur Indebtedness
(other than Subordinated Obligations) if, on the date of such Incurrence and
after giving effect thereto on a pro forma basis, no Default has occurred and is
continuing and the Consolidated Leverage Ratio would be less than (x) 4.25 to
1.00 if such Indebtedness is incurred on or prior to February 15, 2005, (y) 4.00
to 1.00 if such Indebtedness is Incurred after February 15, 2005 and on or prior
to February 15, 2007 or
56
(z) 3.75 to 1.00 if such Indebtedness is Incurred after February 1, 2007.
(b) Notwithstanding the foregoing paragraph (a), the
Company, the Issuers and any other Restricted Subsidiary shall be entitled to
Incur any or all of the following Indebtedness:
(1) Indebtedness Incurred by the Company or any Restricted
Subsidiary pursuant to any Revolving Credit Facility; provided,
however, that, immediately after giving effect to any such Incurrence,
the aggregate principal amount of all Indebtedness Incurred under this
clause (1) and then outstanding does not exceed (x) A$100.0 million if
on or prior to February 15, 2007 or (y) A$150.0 million thereafter;
(2) Indebtedness Incurred by the Company or any Restricted
Subsidiary pursuant to any Term Loan Facility; provided, however, that,
after giving effect to any such Incurrence, the aggregate principal
amount of all Indebtedness Incurred under this clause (2) and then
outstanding does not exceed the sum of (x) A$1,300.0 million and (y)
US$375.0 million, less the sum of all principal payments with respect
to such Indebtedness pursuant to Section 4.06(a)(3)(A);
(3) Indebtedness owed to and held by the Company or a
Restricted Subsidiary; provided, however, that (A) any subsequent
issuance or transfer of any Capital Stock which results in any such
Restricted Subsidiary ceasing to be a Restricted Subsidiary or any
subsequent transfer of such Indebtedness (other than to the Company or
a Restricted Subsidiary) shall be deemed, in each case, to constitute
the Incurrence of such Indebtedness by the obligor thereon and (B) if
the Company is the obligor on such Indebtedness and the holder is a
Person other than an Issuer or any Subsidiary Guarantor, such
Indebtedness is expressly subordinated to the prior payment in full in
cash of all obligations with respect to the Securities;
(4) the Securities and the Exchange Securities (other than any
Additional Securities) and any Guarantees thereof;
57
(5) Indebtedness outstanding on the Issue Date (other than
Indebtedness described in clause (1), (2), (3) or (4) of this Section
4.03(b));
(6) Capital Lease Obligations, Purchase Money Indebtedness or
other financings incurred to finance all or part of the purchase price
or the cost of construction, lease, improvement or repair of, or
additions to, property, plant or equipment used in the business of the
Company or any Restricted Subsidiary, in each case Incurred not later
than 365 days after the later of the acquisition, lease, completion of
construction, repair, improvement or addition, or the commencement of
full operation of the property, and Refinancing Indebtedness Incurred
in respect of Indebtedness Incurred pursuant to this clause (6);
provided, however, the aggregate principal amount of all Indebtedness
Incurred under this clause (6) and then outstanding does not exceed the
greater of (A) US$25.0 million and (B) 3% of Total Assets;
(7) Indebtedness of a Restricted Subsidiary Incurred and
outstanding on or prior to the date on which such Person or assets
owned by such Person were acquired by the Company or a Restricted
Subsidiary (other than Indebtedness Incurred in connection with, or to
provide all or any portion of the funds or credit support utilized to
consummate, the transaction or series of related transactions pursuant
to which such Person became a Subsidiary of the Company or such assets
were acquired by the Company or a Restricted Subsidiary) and
Refinancing Indebtedness in respect of Indebtedness Incurred pursuant
to this clause (7); provided, however, that the aggregate principal
amount of all Indebtedness Incurred under this clause (7) and then
outstanding does not exceed US$20.0 million;
(8) Refinancing Indebtedness in respect of Indebtedness
Incurred pursuant to Section 4.03(a) or pursuant to clause (4), (5) or
(16)(ii) of this Section 4.03(b) or this clause (8);
(9) Hedging Obligations consisting of Interest Rate
Agreements, Currency Agreements or Commodity Agreements entered into
for the purpose of hedging
58
interest rate, exchange rate or commodity exposure risks and not for
speculative purposes;
(10) obligations (A) in respect of performance, bid appeal or
surety bonds and completion guarantees, (B) for or in connection with
pledges, deposits or payments in connection with or to secure
statutory, regulatory or similar obligations, including obligations
under health, safety or environmental obligations, (C) arising from
Guarantees to suppliers, lessors, licensees, contractors, franchisees
or customers of obligations (other than Indebtedness) and (D) in
respect of worker's compensation obligations, employee benefit
obligations, property, casualty or liability insurance and
self-insurance, in each of cases (A) through (D), where the requirement
or request to incur such obligation arises in the ordinary course of
business;
(11) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument drawn
against insufficient funds in the ordinary course of business;
provided, however, that such Indebtedness is extinguished within five
Business Days of the Company receiving notice of its Incurrence;
(12) Guarantees by the Company or any Restricted Subsidiary of
any Indebtedness of the Company or any Restricted Subsidiary permitted
to be Incurred pursuant to this Section 4.03 (other than pursuant to
Section 4.03(b)(14));
(13) Indebtedness Incurred by any Restricted Subsidiary that
is not an Issuer or a Subsidiary Guarantor; provided, however, that the
amount of such Indebtedness, when added together with the aggregate
amount of all Indebtedness Incurred pursuant to this Section
4.03(b)(13) and then outstanding, does not exceed the sum of (A)
US$21.5 million and (B) 5% of EBITDA for the 12 month period ending on
the most recent June 30 or December 31 preceding the date such
Indebtedness is Incurred;
(14) Indebtedness of a Securitization Subsidiary Incurred in a
Permitted Receivables Financing;
59
(15) Indebtedness of the Company, the Issuers or of any other
Restricted Subsidiary in an aggregate principal amount which, when
taken together with all other Indebtedness of the Company, the Issuers
and the Restricted Subsidiaries outstanding on the date of such
Incurrence (other than Indebtedness permitted by clauses (1) through
(14) or clauses (16) and (17) of this Section 4.03(b) or Section
4.03(a)) does not exceed US$60.0 million; provided; however, that no
Indebtedness Incurred pursuant to this clause (15) may be used to
finance all or any portion of any Acquisition or Refinance any
Indebtedness previously Incurred to finance all or any portion of any
Acquisition;
(16) (i) Indebtedness of Goodman Fielder or any of its
Subsidiaries that is outstanding on the date that Goodman Fielder
becomes a Subsidiary of the Company or Indebtedness of the Company or
any of its Subsidiaries Incurred to purchase Indebtedness of Goodman
Fielder outstanding on the date that Goodman Fielder becomes a
Subsidiary of the Company, in each case to the extent that such
Indebtedness is permanently repaid within 120 days after the date that
Goodman Fielder becomes a Wholly Owned Subsidiary and (ii) Indebtedness
of the Company or any of its Subsidiaries in an aggregate amount not to
exceed A$115.0 million Incurred in connection with the Goodman Fielder
Acquisition and consisting of an asset sale bridge facility intended to
be repaid with proceeds from the sale by Goodman Fielder of its Leiner
Davis Gelatin business; and
(17) Indebtedness consisting of Subordinated Obligations if,
on the date of Incurrence of such Indebtedness and after giving effect
thereto on a pro forma basis, no Default has occurred and is continuing
and the Consolidated Coverage Ratio exceeds 2.00 to 1.00, and any
Indebtedness consisting of Subordinated Obligations that Refinance any
Indebtedness Incurred pursuant to this clause (17).
(c) Notwithstanding the foregoing, neither the Issuers,
the Company nor any Subsidiary Guarantor shall incur any Indebtedness pursuant
to Section 4.03(b) if the proceeds thereof are used, directly or indirectly, to
60
Refinance any Subordinated Obligations of the Issuers, the Company or any
Subsidiary Guarantor unless such Indebtedness shall be subordinated to the
Securities, the Company Guaranty or the applicable Subsidiary Guaranty, as the
case may be, to at least the same extent as such Subordinated Obligations.
(d) For purposes of determining compliance with this
covenant:
(1) any Indebtedness remaining outstanding under the Credit
Agreement after the application of the net proceeds from the sale of
the Securities will be treated as Incurred on the Issue Date under
clauses (1) and (2) of Section 4.03(b);
(2) in the event that an item of Indebtedness (or any portion
thereof) meets the criteria of more than one of the types of
Indebtedness described herein, the Company, in its sole discretion,
shall classify such item of Indebtedness (or any portion thereof) at
the time of Incurrence and shall only be required to include the amount
and type of such Indebtedness in one of the above clauses; and
(3) the Company shall be entitled to (i) divide and classify
an item of Indebtedness in more than one of the types of Indebtedness
described above and (ii) in the case of Indebtedness Incurred pursuant
to clause (1), (2), (6), (7), (13) or (15) of Section 4.03(b), from
time to time to reclassify items of such Indebtedness; provided,
however, that the amount and type of such Indebtedness will be required
to be included in one of clauses (1), (2), (6), (7), (13) or (15) of
Section 4.03(b) and must qualify as such Indebtedness at the time of
the reclassification.
(e) Notwithstanding Sections 4.03(a) and 4.03(b), neither
the Company, an Issuer, nor any Subsidiary Guarantor shall Incur (1) any
Indebtedness if such Indebtedness is subordinate or junior in ranking in any
respect to any Senior Indebtedness of the Company, an Issuer or such Subsidiary
Guarantor, as applicable, unless such Indebtedness is Senior Subordinated
Indebtedness or is expressly subordinated in right of payment to Senior
Subordinated Indebtedness of the Company or such Subsidiary
61
Guarantor, as applicable, or (2) any Secured Indebtedness that is not Senior
Indebtedness of such Person unless contemporaneously therewith such Person makes
effective provision to secure the Company Guaranty, the Securities or the
relevant Subsidiary Guaranty, as applicable, equally and ratably with such
Secured Indebtedness for so long as such Secured Indebtedness is secured by a
Lien.
(f) For purposes of determining compliance with any
restriction on the Incurrence of Indebtedness denominated in Australian or U.S.
dollars, where the Indebtedness Incurred is denominated in a different currency,
the amount of such Indebtedness shall be the Australian Dollar Equivalent or
U.S. Dollar Equivalent, as applicable, determined on the date of the Incurrence
of such Indebtedness; provided, however, that if any such Indebtedness
denominated in a different currency is subject to a Currency Agreement with
respect to Australian dollars or U.S. dollars, as applicable, covering all
principal, premium, if any, and interest payable on such Indebtedness, the
amount of such Indebtedness expressed in Australian or U.S. dollars, as
applicable, shall be as provided in such Currency Agreement. The principal
amount of any Refinancing Indebtedness Incurred in the same currency as the
Indebtedness being Refinanced shall be the Australian Dollar Equivalent or U.S.
Dollar Equivalent, as applicable, of the Indebtedness Refinanced, except to the
extent that (1) such Australian Dollar Equivalent or U.S. Dollar Equivalent, as
applicable, was determined based on a Currency Agreement, in which case the
Refinancing Indebtedness shall be determined in accordance with the preceding
sentence, and (2) the principal amount of the Refinancing Indebtedness exceeds
the principal amount of the Indebtedness being Refinanced, in which case the
Australian Dollar Equivalent or U.S. Dollar Equivalent, as applicable, of such
excess shall be determined on the date such Refinancing Indebtedness is
Incurred.
(g) Notwithstanding Sections 4.03(a) or 4.03(b), the
Issuers shall not Incur any Indebtedness unless such Indebtedness is fully and
unconditionally Guaranteed by the Company.
SECTION 4.04. Limitation on Restricted Payments. (a) The
Company shall not, and shall not permit any Restricted Subsidiary, directly or
indirectly, to make a
62
Restricted Payment if at the time the Company or such Restricted Subsidiary
makes such Restricted Payment:
(1) a Default shall have occurred and be continuing (or would
result therefrom);
(2) the Company is not entitled to Incur an additional US$1.00
of Indebtedness pursuant to Section 4.03(a) without a Leverage Default
having occurred; or
(3) the aggregate amount of such Restricted Payment and all
other Restricted Payments since the Issue Date would exceed the sum of
(without duplication):
(A) 50% of the Consolidated Net Income accrued during
the period (treated as one accounting period) from January 1,
2003 to the date of such Restricted Payment (or, in case such
Consolidated Net Income shall be a deficit, minus 100% of such
deficit); plus
(B) 100% of the aggregate Net Cash Proceeds received
by the Company or any of its Restricted Subsidiaries from the
issuance or sale of Capital Stock of the Company (other than
Disqualified Stock) or any Capital Notes or any Capital
Securities of the Company subsequent to January 1, 2003 (other
than an issuance or sale to a Subsidiary of the Company and
other than an issuance or sale to an employee stock ownership
plan or to a trust established by the Company or any of its
Subsidiaries for the benefit of their employees), (y) 100% of
any cash capital contribution received by the Company from its
shareholders subsequent to January 1, 2003 and (z) 100% of the
aggregate principal amount of Capital Securities of any other
Person that are converted into Capital Securities of the
Company subsequent to January 1, 2003; plus
(C) the amount by which Indebtedness of the Company
is reduced on the Company's balance sheet upon the conversion
or exchange subsequent to January 1, 2003 of any Indebtedness
of the Company or any Restricted Subsidiary convertible
63
or exchangeable for Capital Stock of the Company (other than
Disqualified Stock), any Capital Notes or any Capital
Securities of the Company (less the amount of any cash, or the
fair value of any other property, distributed by the Company
upon such conversion or exchange); provided, however, that the
foregoing amount shall not exceed the Net Cash Proceeds
received by the Company or any Restricted Subsidiary from the
sale of such Indebtedness (excluding Net Cash Proceeds from
sales to a Subsidiary of the Company or to an employee stock
ownership plan or to a trust established by the Company or any
of its Subsidiaries for the benefit of their employees); plus
(D) an amount equal to the sum of (x) the net
reduction in the Investments (other than Permitted
Investments) made by the Company or any Restricted Subsidiary
subsequent to January 1, 2003 in any Person resulting from
repurchases, repayments or redemptions of such Investments by
such Person, proceeds realized on the sale of such Investment
and proceeds representing the return of capital (excluding
dividends and distributions), in each case received by the
Company or any Restricted Subsidiary, and (y) to the extent
such Person is an Unrestricted Subsidiary, the portion
(proportionate to the Company's equity interest in such
Subsidiary) of the fair market value of the net assets of such
Unrestricted Subsidiary at the time such Unrestricted
Subsidiary is designated a Restricted Subsidiary; provided,
however, that the foregoing sum shall not exceed, in the case
of any such Person or Unrestricted Subsidiary, the amount of
Investments (excluding Permitted Investments) previously made
(and treated as a Restricted Payment) by the Company or any
Restricted Subsidiary in such Person or Unrestricted
Subsidiary.
(b) The preceding provisions shall not prohibit:
(1) any Restricted Payment made out of the Net Cash Proceeds
of the substantially concurrent sale of,
64
or made by exchange for, Capital Stock of the Company, Capital Notes or
Capital Securities of the Company (other than Disqualified Stock and
other than Capital Stock, Capital Notes or Capital Securities issued or
sold to a Subsidiary of the Company or an employee stock ownership plan
or to a trust established by the Company or any of its Subsidiaries for
the benefit of their employees) or a substantially concurrent cash
capital contribution received by the Company from its shareholders;
provided, however, that (A) such Restricted Payment shall be excluded
in the calculation of the amount of Restricted Payments and (B) the Net
Cash Proceeds from such sale or such cash capital contribution (to the
extent so used for such Restricted Payment) shall be excluded from the
calculation of amounts under Section 4.04(a)(3)(B);
(2) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Obligations of the
Company or any Restricted Subsidiary made by exchange for, or out of
the proceeds of the substantially concurrent sale of, Indebtedness
which is permitted to be Incurred pursuant to Section 4.03; provided,
however, that such purchase, repurchase, redemption, defeasance or
other acquisition or retirement for value shall be excluded in the
calculation of the amount of Restricted Payments;
(3) dividends paid within 60 days after the date of
declaration thereof if at such date of declaration such dividend would
have complied with this covenant; provided, however, that such dividend
shall be included in the calculation of the amount of Restricted
Payments;
(4) the purchase, redemption or other acquisition or
retirement for value of Capital Stock of the Company held by officers,
directors or employees or former officers, directors or employees (or
their estates or beneficiaries or permitted transferees), upon death,
disability, retirement, severance or termination of employment, or in
order to satisfy tax withholding obligations of such persons upon the
exercise of options or the vesting of performance shares, or pursuant
to any agreement or written plan
65
(each as amended) under which such Capital Stock was issued; provided,
however, that the aggregate amount of such repurchases and other
acquisitions shall not exceed US$2.0 million in any calendar year plus
an amount (not to exceed US$2.0 million in any calendar year) equal to
the amount of such purchases, redemptions or other acquisitions or
retirements for value permitted to have been made but not made in the
immediately preceding calendar year; provided further, however, that
such repurchases and other acquisitions shall be excluded in the
calculation of the amount of Restricted Payments;
(5) repurchases by the Company of Capital Stock of the Company
deemed to occur upon the exercise of options or warrants if such
Capital Stock represents all or a portion of the exercise price
thereof; provided, however, that such repurchases shall be excluded
from the calculation of the amount of Restricted Payments;
(6) the purchase by the Company of fractional shares arising
out of stock dividends, splits or combinations, fractional shares
arising out of the conversion or exchange of any securities of the
Company or any of its Subsidiaries into Capital Stock of the Company or
fractional shares arising out of business combinations,; provided,
however, that such purchases shall be included in the calculation of
the amount of Restricted Payments;
(7) dividends or interest payable in respect of the Converting
Preference Shares, Capital Notes or Capital Securities; provided,
however, that such dividends shall be included in the calculation of
the amount of Restricted Payments;
(8) any purchase or redemption of Subordinated Obligations
from Net Available Cash remaining after an offer to the Holders to
purchase Securities with Net Available Cash pursuant to Section 4.06;
provided, however, that such purchases or redemptions shall be excluded
in the calculation of the amount of Restricted Payments;
66
(9) the acquisition in open-market purchases of Capital Stock
for matching contributions to employee stock purchase and deferred
compensation plans in the ordinary course of business; provided,
however, that such acquisitions shall be excluded in the calculation of
the amount of Restricted Payments;
(10) payments made by the Company or any Restricted Subsidiary
as a result of dissenters' rights related to a merger involving the
Company; provided, however, that as a result of such merger the Company
has made a Change of Control Offer pursuant to Section 4.10 and any
Securities tendered in connection therewith have been purchased,
provided further, however, that any such payments shall be excluded in
the calculation of the amount of Restricted Payments;
(11) dividends payable on Disqualified Stock; provided,
however, that such dividends will be excluded in the calculation of the
amount of Restricted Payments; or
(12) other Restricted Payments in an aggregate amount not to
exceed US$40.0 million; provided, however, that such Restricted
Payments shall be excluded in the calculation of the amount of
Restricted Payments.
SECTION 4.05. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Company shall not, and shall not permit any
Restricted Subsidiary to, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to (a) pay dividends or make any other distributions on
its Capital Stock to the Company or a Restricted Subsidiary or pay any
Indebtedness owed to the Company, (b) make any loans or advances to the Company
or (c) transfer any of its property or assets to the Company, except:
(1) any encumbrance or restriction existing on the Issue Date,
including pursuant to the Credit Agreement;
(2) any encumbrance or restriction contained in the terms of
any Indebtedness Incurred under the Credit Agreement if (x) the Company
determines at the
67
time any such Indebtedness is Incurred (and at the time of any
modification of the terms of any such encumbrance or restriction) that
any such encumbrance or restriction will not materially affect the
Company's ability to make (or to provide funds to the Issuers to make)
principal or interest payments on the Securities and (y) the
encumbrance or restriction is not materially more disadvantageous to
the Securityholders than is customary in comparable financings or
agreements (as determined by the Company in good faith);
(3) any encumbrance or restriction with respect to any Person
or assets existing on or prior to the date on which such Person or
assets were acquired by the Company or any Restricted Subsidiary (other
than Indebtedness Incurred as consideration in, or to provide all or
any portion of the funds or credit support utilized to consummate, the
transaction or series of related transactions pursuant to which such
Person became a Restricted Subsidiary or such Person or assets were
acquired by the Company or any Restricted Subsidiary) and outstanding
on such date;
(4) any encumbrance or restriction that amends, extends,
renews, refinances or replaces any encumbrances or restrictions
referred to in clause (1) or (3) of this Section 4.05 or this clause
(4) or contained in any amendment to an agreement referred to in clause
(1) or (3) of this Section 4.05 or this clause (4); provided, however,
that the encumbrances and restrictions are not materially less
favorable, taken as a whole, to the Securityholders than the
encumbrances and restrictions being extended, renewed, refinanced or
replaced;
(5) any encumbrance or restriction imposed pursuant to an
agreement entered into for the sale or disposition of assets permitted
by Section 4.06; provided, however, that such encumbrance or
restriction applies only to the assets that are the subject of such
agreement or consists of reasonable and customary provisions, as
determined in good faith by the Company, providing for escrow, net
worth maintenance or other similar restrictions to support
68
indemnification obligations of the Company or any Restricted Subsidiary
pursuant to such agreement;
(6) any encumbrance or restriction consisting of customary
nonassignment provisions in leases governing leasehold interests to the
extent such provisions restrict the transfer of the lease or the
property leased thereunder;
(7) any encumbrance or restriction existing under or by reason
of applicable law;
(8) any encumbrance or restriction contained in security
agreements or mortgages securing Indebtedness of the Company or a
Restricted Subsidiary to the extent such encumbrance or restriction
restricts the transfer of the property subject to such security
agreements or mortgages;
(9) any encumbrance or restriction with respect to
Indebtedness or other contractual requirements of a Securitization
Subsidiary in connection with a Permitted Receivables Financing;
provided, however, that such encumbrance or restriction applies only to
such Securitization Subsidiary;
(10) any encumbrance or restriction consisting of provisions
in joint venture agreements with respect to the disposition or
distribution of interests in, or assets or property of, such joint
venture;
(11) restrictions on cash or other deposits or net worth
imposed by customers under contracts entered into in the ordinary
course of business;
(12) any encumbrance or restriction arising in respect of
Purchase Money Indebtedness, Capital Lease Obligations or other
financings incurred to finance all or part of the purchase price or
cost of construction, lease, improvement or repair of, or additions to,
property, plant or equipment used in the business of the Company or any
Restricted Subsidiary Incurred pursuant to Section 4.03;
(13) any encumbrance or restriction arising or agreed to in
the ordinary course of business, not relating to any Indebtedness, and
that does not,
69
individually or in the aggregate, detract from the value of property or
assets of the Company or any Restricted Subsidiary in any manner
material to the Company and its Restricted Subsidiaries;
(14) a set-off arrangement entered into as a part of normal
banking arrangements or in the ordinary course of day-to-day trading;
(15) a title retention arrangement entered into with a
supplier in the ordinary course of business; and
(16) any Liens securing Indebtedness otherwise permitted to be
Incurred under Section 4.03 that limit the right of the debtor to
dispose of the assets subject to such Liens.
SECTION 4.06. Limitation on Sales of Assets and Subsidiary
Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, consummate any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary receives
consideration at least equal to the fair market value (including as to
the value of all non-cash consideration), as determined in good faith
by the Board of Directors of the Company, of the shares and assets
subject to such Asset Disposition;
(2) except in the case of an Asset Swap, at least 75% of the
consideration thereof received by the Company or such Restricted
Subsidiary is in the form of cash or Temporary Cash Investments; and
(3) an amount equal to 100% of the Net Available Cash from
such Asset Disposition is applied by the Company (or such Restricted
Subsidiary, as the case may be)
(A) first, to the extent the Company elects (or is
required by the terms of any Indebtedness), to prepay, repay,
redeem or purchase Senior Indebtedness of the Company or
Indebtedness (other than any Disqualified Stock) of a
Restricted Subsidiary (in each case other than Indebtedness
owed to the Company or an
70
Affiliate of the Company) within one year from the later of
the date of such Asset Disposition or the receipt of such Net
Available Cash;
(B) second, to the extent of the balance of such Net
Available Cash after application in accordance with clause
(A), to the extent the Company elects, to acquire, construct
or invest in, or improve or repair (but only to the extent
that such improvement or repair is accounted for in the
Company's balance sheet under the caption "Property, Plant and
Equipment"), Additional Assets that will constitute part of or
be used in the business of the Company or a Restricted
Subsidiary within one year from the later of the date of such
Asset Disposition or the receipt of such Net Available Cash
(or within 270 days of the end of such one year period if the
Company or such Restricted Subsidiary enters into a binding
commitment for such acquisition, construction, investment,
improvement or repair within such one year period, provided
that such commitment shall be subject only to customary
conditions (other than financing)); and
(C) third, to the extent of the balance of such Net
Available Cash after application in accordance with clauses
(A) and (B), to make an offer to the holders of the Securities
(and to holders of other Senior Subordinated Indebtedness of
the Issuers or the Company designated by the Company) to
purchase Securities (and such other Senior Subordinated
Indebtedness of the Issuers or the Company) pursuant to and
subject to the conditions contained in this Indenture;
provided, however, that in connection with any prepayment, repayment or
purchase of Indebtedness pursuant to Section 4.06(a)(3)(A) or
4.06(a)(3)(C), the Company or such Restricted Subsidiary shall, except
in respect of Indebtedness Incurred pursuant to Section 4.03(b)(1),
permanently retire such Indebtedness and shall cause the related loan
commitment (if any) to be permanently reduced in an amount equal to the
principal amount so prepaid, repaid or purchased.
71
Notwithstanding the foregoing provisions of this Section 4.06,
the Company and the Restricted Subsidiaries shall not be required to apply any
Net Available Cash in accordance with this covenant except to the extent that
the aggregate Net Available Cash from all Asset Dispositions which is not
applied in accordance with this covenant exceeds US$25.0 million. Pending
application of Net Available Cash pursuant to this covenant, such Net Available
Cash shall be invested in Temporary Cash Investments or applied to temporarily
reduce revolving credit indebtedness.
For the purposes of this Section 4.06, the following are
deemed to be cash or Temporary Cash Investments:
(1) the assumption of Indebtedness or trade payables of the
Company or any Restricted Subsidiary and the release of the Company or
such Restricted Subsidiary from all liability on such Indebtedness or
trade payables in connection with such Asset Disposition; and
(2) securities, notes or other obligations received by the
Company or any Restricted Subsidiary from the transferee to the extent
converted within 90 days by the Company or such Restricted Subsidiary
into cash or Temporary Cash Investments.
(b) In the event of an Asset Disposition that requires
the Company to make an offer to purchase Securities (and other Senior
Subordinated Indebtedness of the Issuers or the Company) pursuant to Section
4.06(a)(3)(C), the Company shall purchase Securities tendered pursuant to an
offer by the Company for the Securities (and such other Senior Subordinated
Indebtedness) (the "Offer") at a purchase price of 100% of their principal
amount (or, in the event such other Senior Subordinated Indebtedness was issued
with significant original issue discount, 100% of the accreted value thereof)
without premium, plus accrued but unpaid interest (or, in respect of such other
Senior Subordinated Indebtedness, such lesser price, if any, as may be provided
for by the terms of such Senior Subordinated Indebtedness) in accordance with
the procedures (including prorating in the event of oversubscription) set forth
in
72
Section 4.06(c). If the aggregate purchase price of the securities tendered
exceeds the Net Available Cash allotted to their purchase, the Company shall
select the securities to be purchased on a pro rata basis but in round
denominations, which in the case of the Securities shall be denominations of
US$1,000 principal amount or multiples thereof. The Company shall not be
required to make such an offer to purchase Securities (and other Senior
Subordinated Indebtedness of the Company) pursuant to this covenant until the
45th day after the first day of a calendar month in which the Net Available Cash
available therefor totals at least US$10.0 million (with lesser amounts being
carried forward for purposes of determining whether such an offer is required
with respect to the Net Available Cash from any subsequent Asset Disposition,
except as provided in the next sentence). Upon completion of such an offer to
purchase, Net Available Cash shall be deemed to be reduced by the aggregate
amount of such offer.
(c) (1) Promptly, and in any event within 10 days after
the Company becomes obligated to make an Offer, the Company shall deliver to the
Trustee and send, by first-class mail to each Holder, a written notice stating
that the Holder may elect to have his Securities purchased by the Company either
in whole or in part (subject to prorating as described in Section 4.06(b) in the
event the Offer is oversubscribed) in integral multiples of US$1,000 of
principal amount, at the applicable purchase price. The notice shall specify a
purchase date not less than 30 days nor more than 60 days after the date of such
notice (the "Purchase Date") and shall contain such information concerning the
business of the Company which the Company in good faith believes will enable
such Holders to make an informed decision and all instructions and materials
necessary to tender Securities pursuant to the Offer, together with the
information contained in clause (3).
(2) Not later than the date upon which written notice of an
Offer is delivered to the Trustee as provided below, the Company shall
deliver to the Trustee an Officers' Certificate of the Company as to
(A) the amount of the Offer (the "Offer Amount"), including information
as to any other Senior Subordinated Indebtedness included in the Offer,
(B) the allocation of the Net Available Cash from the
73
Asset Dispositions pursuant to which such Offer is being made and (C)
the compliance of such allocation with the provisions of Section
4.06(a) and (b). On such date, the Company shall also irrevocably
deposit with the Trustee or with a Paying Agent (or if the Issuers are
acting as their own Paying Agent, segregate and hold in trust) in
Temporary Cash Investments, maturing on the last day prior to the
Purchase Date or on the Purchase Date if funds are immediately
available by open of business, an amount equal to the Offer Amount to
be held for payment in accordance with the provisions of this Section
4.06. If the Offer includes other Senior Subordinated Indebtedness of
the Company, the deposit described in the preceding sentence may be
made with any other paying agent pursuant to arrangements satisfactory
to the Trustee. Upon the expiration of the period for which the Offer
remains open (the "Offer Period"), the Company shall deliver to the
Trustee for cancelation the Securities or portions thereof which have
been properly tendered to and are to be accepted by the Company. The
Trustee shall, on the Purchase Date, mail or deliver payment (or cause
the delivery of payment) to each tendering Holder in the amount of the
purchase price. In the event that the aggregate purchase price of the
Securities delivered by the Company to the Trustee is less than the
Offer Amount applicable to the Securities, the Trustee shall deliver
the excess to the Company immediately after the expiration of the Offer
Period for application in accordance with this Section 4.06.
(3) Holders electing to have a Security purchased shall be
required to surrender the Security, with an appropriate form duly
completed, to the Company at the address specified in the notice at
least three Business Days prior to the Purchase Date. Holders shall be
entitled to withdraw their election if the Trustee or the Company
receives not later than one Business Day prior to the Purchase Date, a
facsimile transmission or letter setting forth the name of the Holder,
the principal amount of the Security which was delivered for purchase
by the Holder and a statement that such Holder is withdrawing his
election to have such Security purchased. Holders whose Securities are
purchased only in part shall be issued new Securities
74
equal in principal amount to the unpurchased portion of the Securities
surrendered.
(4) At the time the Company delivers Securities to the Trustee
which are to be accepted for purchase, the Company shall also deliver
an Officers' Certificate of the Company stating that such Securities
are to be accepted by the Company pursuant to and in accordance with
the terms of this Section 4.06. A Security shall be deemed to have been
accepted for purchase at the time the Trustee, directly or through an
agent, mails or delivers payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable,
with the requirements of Section 14(e) of the Exchange Act and any other
securities laws or regulations in connection with the repurchase of Securities
pursuant to this Section 4.06. To the extent that the provisions of any
securities laws or regulations conflict with provisions of this Section 4.06,
the Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this Section 4.06 by
virtue of its compliance with such securities laws or regulations.
SECTION 4.07. Limitation on Affiliate Transactions. (a) The
Company shall not, and shall not permit any Restricted Subsidiary to, enter into
or permit to exist any transaction (including the purchase, sale, lease or
exchange of any property, employee compensation arrangements or the rendering of
any service) with, or for the benefit of, any Affiliate of the Company (an
"Affiliate Transaction") unless:
(1) the terms of the Affiliate Transaction are no less
favorable to the Company or such Restricted Subsidiary than those that
could be obtained at the time of the Affiliate Transaction in
arm's-length dealings with a Person who is not an Affiliate;
(2) if such Affiliate Transaction involves an amount in excess
of US$5.0 million, the terms of the Affiliate Transaction are set forth
in writing and a majority of the non-employee directors of the Company
disinterested with respect to such Affiliate
75
Transaction have determined in good faith that the criteria set forth
in clause (1) are satisfied and have approved the relevant Affiliate
Transaction as evidenced by a resolution of the Board of Directors; and
(3) if such Affiliate Transaction involves an amount in excess
of US$15.0 million, the Board of Directors of the Company shall also
have received a written opinion from an Independent Qualified Party to
the effect that such Affiliate Transaction is fair, from a financial
standpoint, to the Company and its Restricted Subsidiaries or is not
less favorable to the Company and its Restricted Subsidiaries than
could reasonably be expected to be obtained at the time in an
arm's-length transaction with a Person who was not an Affiliate.
(b) The provisions of Section 4.07(a) shall not prohibit:
(1) any Investment (other than a Permitted Investment) or
other Restricted Payment, in each case permitted to be made pursuant to
Section 4.04;
(2) any issuance of securities, or other payments, awards or
grants in cash, securities or otherwise pursuant to, or the funding of,
employment arrangements, stock options and stock ownership plans
approved by the Board of Directors of the Company;
(3) loans or advances to employees not to exceed US$5.0
million in the aggregate outstanding at any one time;
(4) the payment of reasonable and customary directors' fees,
indemnification and similar arrangements, employee salaries, bonuses or
employment agreements, consulting agreements, compensation or employee
benefit arrangements and incentive arrangements with any officer,
director or employee of the Company or any Restricted Subsidiary
entered into in the ordinary course of business;
(5) any transaction with or among Restricted Subsidiaries or
joint ventures or similar entities which would constitute an Affiliate
Transaction solely
76
because the Company or a Restricted Subsidiary owns an equity interest
in or otherwise controls such Restricted Subsidiary, joint venture or
similar entity;
(6) the issuance or sale of any Capital Stock (other than
Disqualified Stock) of the Company, including pursuant to stock
options;
(7) transactions between the Company or any Restricted
Subsidiary and a Securitization Subsidiary or between a Securitization
Subsidiary and any Person in which the Securitization Subsidiary has an
Investment;
(8) any financial advisory, investment banking, commercial
banking, corporate trust, insurance, institutional fund management and
similar financial or ancillary services provided by any Person in the
ordinary course of business and on commercially reasonable terms; and
(9) any agreement or arrangement in effect on the Issue Date
(including arrangements for the reimbursement of costs of services,
fees and expenses in respect of services provided by any entity
affiliated with Graeme Hart), as amended, modified or replaced from
time to time; provided, however, that the amended, modified or replaced
agreement or arrangement is not less favorable in any material respect
to the Company and its Restricted Subsidiaries than that in effect on
the Issue Date.
SECTION 4.08. Limitation on the Sale or Issuance of Capital
Stock of Restricted Subsidiaries and the Issuers.
(a) The Company
(1) shall not, and shall not permit any Restricted Subsidiary
to, sell, lease, transfer or otherwise dispose of any Capital Stock of
any Restricted Subsidiary to any Person (other than the Company or a
Wholly Owned Subsidiary), and
(2) shall not permit any Restricted Subsidiary to issue any of
its Capital Stock (other than, if
77
necessary, shares of its Capital Stock constituting directors' or other
legally required qualifying shares) to any Person (other than to the
Company or a Wholly Owned Subsidiary),
unless, in the case of a Restricted Subsidiary other than an Issuer,
(A) immediately after giving effect to such issuance,
sale or other disposition, neither the Company nor any of its
Subsidiaries own any Capital Stock of such Restricted
Subsidiary;
(B) immediately after giving effect to such issuance,
sale or other disposition, such Restricted Subsidiary would no
longer constitute a Restricted Subsidiary and any Investment
in such Person remaining after giving effect thereto is
treated as a new Investment by the Company and such Investment
would be permitted to be made under Section 4.04 if made on
the date of such issuance, sale or other disposition; or
(C) immediately after giving effect to such issuance,
sale or other disposition of Capital Stock (other than
Disqualified Stock), such Restricted Subsidiary would continue
to be a Restricted Subsidiary,
and in the case of each of (A), (B) and (C), to the extent required,
such issuance, sale or other disposition complies with, and the
proceeds thereof are applied in accordance with, Section 4.06.
(b) The Issuers shall continue to be, directly or
indirectly, a Wholly Owned Subsidiary of the Company.
SECTION 4.09. Acquisition Non-Consummation Offer. (a)
In the event that the Company and its Subsidiaries do not acquire more than 50%
of the voting power of shares of Voting Stock of Goodman Fielder by the date
(the "Non-Consummation Trigger Date") that is 365 days after the Issue Date (the
"Non-Consummation Event"), each Holder shall have the right to require that the
Issuers repurchase such Holder's Securities at a purchase price in cash equal to
the Accreted Value Premium with respect to such Securities on the date of
purchase plus accrued and
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unpaid interest, if any, to the date of purchase (subject to the right of
holders of record on the relevant record date to receive interest due on the
relevant interest payment date), in accordance with the terms contemplated in
Section 4.09(b).
(b) Within 30 days following the Non-Consummation Trigger
Date, the Issuers shall mail a notice to each Holder with a copy to the Trustee
stating:
(1) that a Non-Consummation Event has occurred and that such
Holder has the right to require the Issuers to purchase such Holder's
Securities at a purchase price in cash equal to the Accreted Value
Premium with respect to such Securities on the date of purchase, plus
accrued and unpaid interest, if any, to the date of purchase (subject
to the right of Holders of record on the relevant record date to
receive interest on the relevant interest payment date);
(2) the purchase date (which shall be no earlier than 30 days
nor later than 60 days from the date such notice is mailed); and
(3) the instructions, as determined by the Issuers, consistent
with this Section 4.09, that a Holder must follow in order to have its
Securities purchased.
(c) Holders electing to have a Security purchased will be
required to surrender the Security, with an appropriate form duly completed, to
the Issuers at the address specified in the notice at least three Business Days
prior to the purchase date. Holders will be entitled to withdraw their election
if the Trustee or the Issuers receive not later than one Business Day prior to
the purchase date, a facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Security which was delivered for
purchase by the Holder and a statement that such Holder is withdrawing his
election to have such Security purchased.
(d) On the purchase date, all Securities purchased by the
Issuers under this Section shall be delivered by the Issuers to the Trustee for
cancelation, and the Issuers shall pay the purchase price plus accrued
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and unpaid interest, if any, to the Holders entitled thereto.
(e) The Issuers shall comply, to the extent applicable,
with the requirements of Section 14(e) of the Exchange Act and any other
securities laws or regulations in connection with the repurchase of Securities
as a result of a Non-Consummation Event. To the extent that the provisions of
any securities laws or regulations conflict with the provisions of this Section
4.09, the Issuers shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.09 by virtue of its compliance with such securities laws or
regulations.
SECTION 4.10. Change of Control. (a) Upon the occurrence of a
Change of Control, each Holder shall have the right to require that the Issuers
repurchase such Holder's Securities at a purchase price in cash equal to 101% of
the principal amount thereof on the date of purchase plus accrued and unpaid
interest, if any, to the date of purchase (subject to the right of holders of
record on the relevant record date to receive interest due on the relevant
interest payment date), in accordance with the terms contemplated in Section
4.10(b).
(b) Within 30 days following any Change of Control, the
Issuers shall mail a notice to each Holder with a copy to the Trustee (the
"Change of Control Offer") stating:
(1) that a Change of Control has occurred and that such Holder
has the right to require the Issuers to purchase such Holder's
Securities at a purchase price in cash equal to 101% of the principal
amount thereof on the date of purchase, plus accrued and unpaid
interest, if any, to the date of purchase (subject to the right of
Holders of record on the relevant record date to receive interest on
the relevant interest payment date);
(2) the circumstances and relevant facts regarding such Change
of Control;
(3) the purchase date (which shall be no earlier than 30 days
nor later than 60 days from the date such notice is mailed); and
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(4) the instructions, as determined by the Issuers, consistent
with this Section 4.10, that a Holder must follow in order to have its
Securities purchased.
(c) Holders electing to have a Security purchased will be
required to surrender the Security, with an appropriate form duly completed, to
the Issuers at the address specified in the notice at least three Business Days
prior to the purchase date. Holders will be entitled to withdraw their election
if the Trustee or the Issuers receive not later than one Business Day prior to
the purchase date, a facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Security which was delivered for
purchase by the Holder and a statement that such Holder is withdrawing his
election to have such Security purchased.
(d) On the purchase date, all Securities purchased by the
Issuers under this Section shall be delivered by the Issuers to the Trustee for
cancelation, and the Issuers shall pay the purchase price plus accrued and
unpaid interest, if any, to the Holders entitled thereto.
(e) Notwithstanding the foregoing provisions of this
Section, the Issuers shall not be required to make a Change of Control Offer
following a Change of Control if a third party makes the Change of Control Offer
in the manner, at the times and otherwise in compliance with the requirements
set forth in this Section 4.10 applicable to a Change of Control Offer made by
the Issuers and purchases all Securities validly tendered and not withdrawn
under such Change of Control Offer.
(f) The Issuers shall comply, to the extent applicable,
with the requirements of Section 14(e) of the Exchange Act and any other
securities laws or regulations in connection with the repurchase of Securities
as a result of a Change of Control. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this Section
4.10, the Issuers shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached their obligations under
this Section 4.10 by virtue of their compliance with such securities laws or
regulations.
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SECTION 4.11. Indebtedness Repurchase Event. (a) In the event
that the Company does not comply with the terms of Sections 4.03(a) or 4.03(b)
(a "Leverage Default") and within 45 days of the Company becoming aware of the
occurrence of a Leverage Default the Company could not Incur an additional $1.00
of Indebtedness pursuant to Section 4.03(a) (an "Indebtedness Repurchase
Event"), each Holder will have the right to require that the Issuers repurchase
such Holder's Securities at purchase price in cash equal to 111.75% of the
Accreted Value thereof on the date of purchase plus accrued and unpaid interest,
if any, to the date of purchase (subject to the right of holder of record on the
relevant record date to receive interest due on the relevant interest payment
date), in accordance with the terms contemplated in Section 4.11(b).
(b) Within 30 days of the occurrence of an Indebtedness
Repurchase Event, the Issuers shall mail a notice to each Holder, with a copy to
the Trustee, stating:
(1) that an Indebtedness Repurchase Event has occurred and
that such Holder has the right to require the Issuers to purchase such
Holder's Securities at a purchase price in cash equal to 111.75% of the
Accreted Value thereof on the date of purchase, plus accrued and unpaid
interest, if any, to the date of purchase (subject to the right of
holders of record on the relevant record date to receive interest due
on the relevant interest payment date);
(2) the purchase date (which shall be no earlier than 30 days
nor later than 60 days from the date such notice is mailed); and
(3) the instructions, as determined by the Trustee, consistent
with this Section 4.11, that a Holder must follow in order to have its
Notes purchased.
(c) Holders electing to have a Security purchased will be
required to surrender the Security, with an appropriate form duly completed, to
the Issuers at the address specified in the notice at least three Business Days
prior to the purchase date. Holders will be entitled to withdraw their election
if the Trustee or the Issuers receive not later than one Business Day prior to
the
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purchase date, a facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Security which was delivered for purchase by
the Holder and a statement that such Holder is withdrawing his election to have
such Security purchased.
(d) On the purchase date, all Securities purchased by the
Issuers under this Section shall be delivered by the Issuers to the Trustee for
cancelation, and the Issuers shall pay the purchase price plus accrued and
unpaid interest, if any, to the Holders entitled thereto.
(e) The Issuers shall comply, to the extent applicable,
with the requirements of Section 14(e) of the Exchange Act and any other
securities laws or regulations in connection with the repurchase of Securities
as a result of the occurrence of an Indebtedness Repurchase Event. To the extent
that the provisions of any securities laws or regulations conflict with the
provisions of this Section 4.11, the Issuers shall comply with the applicable
securities laws and regulations and shall not be deemed to breach their
obligations with respect to this Section 4.11 by virtue of their compliance with
applicable securities laws and regulations.
SECTION 4.12. Limitation on Issuers. The Issuers shall not own
any material assets or other property (other than Indebtedness owing to the
Issuers by the Company and its Restricted Subsidiaries and Temporary Cash
Investments) or engage in any trade or conduct any business other than treasury,
cash management, hedging and cash pooling activities and activities incidental
thereto. The Issuers shall not Incur any material liabilities or obligations
other than its obligations pursuant to the Securities, this Indenture, the
Credit Agreement and other Indebtedness permitted to be Incurred by the Issuers
under Section 4.03 and liabilities and obligations pursuant to business
activities permitted by this Section 4.12.
SECTION 4.13. Future Guarantors. The Company shall cause each
Restricted Subsidiary that Incurs any Indebtedness pursuant to Section 4.03(a)
or 4.03(b)(1), (2), (8) (to the extent that such Indebtedness directly or
indirectly refinances Indebtedness Incurred pursuant to Section 4.03(a)), (12),
(15), (16) or (17) to, at the same
83
time, execute and deliver to the Trustee a Guaranty Agreement pursuant to which
such Restricted Subsidiary will Guarantee payment of the Securities on the same
terms and conditions as those set forth in Article 11 (other than Section
11.01); provided, however, that no Restricted Subsidiary will be required to
provide such a Guarantee if (i) such Restricted Subsidiary is not Guaranteeing
any Indebtedness Incurred pursuant to Section 4.03(a) or 4.03(b)(1), (2), (8)
(to the extent that such Indebtedness directly or indirectly refinances
Indebtedness Incurred pursuant to Section 4.03(a)), (12), (15), (16) or (17) and
(ii) in the good faith judgment of the Company's Board of Directors, it is not
reasonably practicable or it is too expensive (having regard to the value of the
assets involved) for such Restricted Subsidiary to Guarantee payment of the
Securities under applicable law; provided further, however, that neither Goodman
Fielder nor any of its Subsidiaries shall be required to provide such a
Guarantee on or before the 210th day after the date on which Goodman Fielder or
such Subsidiary becomes a Restricted Subsidiary or if the terms of this covenant
have otherwise been satisfied prior to the lapse of such 210-day period.
SECTION 4.14. Additional Amounts. The Issuers, the Company and
the Subsidiary Guarantors shall make all payments under or with respect to the
Securities, the Company Guaranty and the Subsidiary Guaranties, as the case may
be, free and clear of and without withholding or deduction for or on account of
any present or future tax, duty, levy, impost, assessment or other governmental
charge of whatever nature (including penalties, interest and other liabilities
related thereto) (hereinafter "Taxes") imposed or levied by or on behalf of (i)
the government of the country in which the Issuers, the Company or the
Subsidiary Guarantors are organized or incorporated or any political subdivision
or any authority or agency therein or thereof having power to tax, (ii) any
other jurisdiction in which the Issuers, the Company or the Subsidiary
Guarantors are otherwise resident for tax purposes, or (iii) any jurisdiction
from or through which payment is made (each such jurisdiction listed in the
foregoing clauses (i), (ii) and (iii), a "Relevant Taxing Jurisdiction"), unless
the Issuers, the Company or the Subsidiary Guarantors are required to withhold
or deduct Taxes by law or by the interpretation or administration thereof.
84
If so required to withhold or deduct any amount for or on
account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made
under or with respect to the Securities, the Company Guaranty or a Subsidiary
Guaranty, the applicable obligor shall pay such additional amounts ("Additional
Amounts") as may be necessary so that the net amount received by the Holders
(including Additional Amounts) after such withholding or deduction will not be
less than the amount the Holders would have received if such Taxes had not been
withheld or deducted; provided, however, that no Additional Amounts will be so
payable for or on account of:
(1) any withholding, deduction, tax, duty, assessment or other
governmental charge which would not have been imposed but for the fact
that the holder or beneficial owner or any other person ultimately
entitled to obtain an interest in the Securities:
(A) is or was a resident, domiciled in or a national
of, or is or was engaged in business or maintained a permanent
establishment in, or is or was physically present in, the
Relevant Taxing Jurisdiction or otherwise has or had some
connection with the Relevant Taxing Jurisdiction other than
the mere ownership of, or receipt of payment under, the
Securities;
(B) presented Securities for payment in the Relevant
Taxing Jurisdiction, unless the Security could not have been
presented for payment elsewhere; or
(C) presented the Securities more than 30 days after
the date on which the payment in respect of the Securities
first became due and payable or provided for, whichever is
later, except to the extent the holder would have been
entitled to the Additional Amounts if it had presented the
Securities for payment on any day within the period of 30
days;
(2) any estate, inheritance, gift, sale, transfer, personal
property or similar tax, assessment or other governmental charge or any
withholding or deduction on account of such taxes;
85
(3) any tax, duty, assessment or other governmental charge
which is payable otherwise than by withholding or deduction from
payments of (or in respect of) principal of, or any premium or interest
on, the Securities;
(4) any withholding, deduction, tax, duty, assessment or other
governmental charge which is imposed or withheld by reason of the
failure by the holder, beneficial owner or other person ultimately
entitled to obtain an interest in the Securities to comply with the
Issuers' request addressed to the holder, beneficial owner or other
person ultimately entitled to obtain an interest in the Securities, as
the case may be,
(A) to provide information concerning the
nationality, residence, identity or address of the holder,
beneficial owner or such other person, as the case may be; or
(B) to make any declaration or other similar claim or
satisfy any information or reporting requirement, which is
required or imposed by a statute, treaty, regulation, protocol
or administrative practice of the Relevant Taxing Jurisdiction
as a precondition to exemption from all or part of the
withholding, deduction, tax, assessment or other governmental
charge; or
(5) any combination of items (1), (2), (3) and (4) above.
Furthermore, no Additional Amounts will be paid with respect to any payment of,
or in respect of, the principal of, or any premium or interest on, the
Securities to any Holder who is a fiduciary or partnership or any person other
than the sole beneficial owner of the payment to the extent payment would, under
the laws of the Relevant Taxing Authority, be treated as being derived or
received for tax purposes by a beneficiary or settlor with respect to the
fiduciary or a member of the partnership or a beneficial owner who would not
have been entitled to the Additional Amounts had it been the holder of the
Securities.
The Issuers, the Company and the Subsidiary Guarantors will
not be liable to pay Additional Amounts to
86
any Holder for any deduction or withholding on account of any duties or taxes
where those duties or taxes are imposed or levied by or on behalf of the
Commonwealth of Australia by virtue of the Holder being an associate (as defined
in Section 128F of the Income Tax Assessment Act 1936 (Australia)) of the
Issuers, the Company or a Subsidiary Guarantor or as a result of the Holder
being a party to or participating in a scheme to avoid the duties or taxes,
being a scheme which none of the Issuers, the Company or a Subsidiary Guarantor
was either party to nor participated in.
Upon request, the Issuers, the Company and the Subsidiary
Guarantors, as applicable, shall provide the Trustee with official receipts or
other documentation satisfactory to the Trustee evidencing the payment of the
Taxes with respect to which Additional Amounts are paid.
Whenever in this Indenture there is mentioned, in any context:
(1) the payment of principal;
(2) purchase prices in connection with a purchase of
Securities;
(3) interest; or
(4) any other amount payable on or with respect to any of the
Securities,
such reference shall be deemed to include payment of Additional Amounts as
described under this heading to the extent that, in such context, Additional
Amounts are, were or would be payable in respect thereof.
The Issuers shall pay any present or future stamp, court or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise in any jurisdiction from the execution, delivery, enforcement
or registration of the Securities, this Indenture or any other document or
instrument in relation thereof, or the receipt of any payments with respect to
the Securities, excluding such taxes, charges or similar levies imposed by any
jurisdiction outside of (i) Australia and the jurisdiction of incorporation of
any Subsidiary Guarantor, (ii) the jurisdiction of incorporation of any
successor of either
87
Issuer or the Company, or (iii) any jurisdiction in which a paying agent is
located, and the Issuers agree to indemnify the Holders for any such taxes paid
by such Holders.
The obligations described under this Section shall survive any
termination, defeasance or discharge of this Indenture and shall apply mutatis
mutandis to any jurisdiction in which any successor Person to the Issuers, the
Company or any Subsidiary Guarantor is organized or any political subdivision or
taxing authority or agency thereof or therein.
SECTION 4.15. Compliance Certificate. The Company shall
deliver to the Trustee within 120 days after the end of each fiscal year, an
Officers' Certificate of the Company stating that in the course of the
performance by the signers of their duties as Officers of the Company, they
would normally have knowledge of any Default and whether or not the signers know
of any Default that occurred during such period. If they do, the certificate
shall describe the Default, its status and what action the Company and the
Issuers are taking or propose to take with respect thereto. The Issuers and the
Company also shall comply with TIA Section 314(a)(4).
SECTION 4.16. Further Instruments and Acts. Upon request of
the Trustee, the Issuers, the Company and the Subsidiary Guarantors will execute
and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purpose of this
Indenture.
ARTICLE 5
Successor Company
SECTION 5.01. When Company, Issuers and Subsidiary Guarantors
May Merge or Transfer Assets. (a) The Company shall not consolidate with or
merge with or into, or convey, transfer or lease, in one transaction or a series
of transactions, directly or indirectly, all or substantially all its assets to,
any Person, unless:
(1) the resulting, surviving or transferee Person (the
"Successor Company") shall be a Person organized and existing under the
laws of Australia or the laws
88
of any political subdivision thereof, the laws of New Zealand or the
laws of any political subdivision thereof, the laws of Norway or the
laws of any political subdivision thereof, the laws of the United
States of America, any State thereof or the District of Columbia, the
laws of the United Kingdom or the laws of any political subdivision
thereof, the laws of any member of the European Union or the laws of
any political subdivision thereof and the Successor Company (if not the
Company) shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, all the obligations of the
Company under the Company Guaranty and this Indenture;
(2) immediately after giving pro forma effect to such
transaction (and treating any Indebtedness which becomes an obligation
of the Successor Company or any Subsidiary as a result of such
transaction as having been Incurred by such Successor Company or such
Subsidiary at the time of such transaction), no Default shall have
occurred and be continuing;
(3) immediately after giving pro forma effect to such
transaction, the Successor Company would be able to Incur an additional
US$1.00 of Indebtedness pursuant to Section 4.03(a) without a Leverage
Default having occurred; and
(4) the Company shall have delivered to the Trustee an
Officers' Certificate of the Company and an Opinion of Counsel, each
stating that such consolidation, merger or transfer and such
supplemental indenture (if any) comply with this Indenture;
provided, however, that clause (3) will not be applicable to (A) a Restricted
Subsidiary consolidating with, merging into or transferring all or part of its
properties and assets to the Company or (B) the Company consolidating or merging
with or transferring all or part of its properties to, an Affiliate of the
Company principally for the purpose and with the principal effect of
reincorporating the Company in another jurisdiction or otherwise changing the
jurisdiction of organization of the Company and not for evading the foregoing
limitations.
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For purposes of this Section 5.01(a), the sale, lease,
conveyance, assignment, transfer or other disposition of all or substantially
all of the properties and assets of one or more Subsidiaries of the Company,
which properties and assets, if held by the Company instead of such
Subsidiaries, would constitute all or substantially all of the properties and
assets of the Company on a consolidated basis, shall be deemed to be the
transfer of all or substantially all of the properties and assets of the
Company.
The Successor Company shall be the successor to the Company
and shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture and the Company Guaranty, and the
predecessor Company, except in the case of a lease, shall be released from its
obligations with respect to the Company Guaranty.
(b) Neither Issuer shall consolidate with or merge with
or into, or convey, transfer or lease, in one transaction or a series or
transactions, directly or indirectly, all or substantially all its assets to,
any Person, unless:
(1) the resulting, surviving or transferee Person (the
"Successor Issuer") shall be a Person organized and existing under the
laws of Australia or the laws of any political subdivision thereof, the
laws of New Zealand or the laws of any political subdivision thereof,
the laws of Norway or the laws of any political subdivision thereof,
the laws of the United States of America, any State thereof or the
District of Columbia, the laws of the United Kingdom or the laws of any
political subdivision thereof, the laws of any member of the European
Union or the laws of any political subdivision thereof; and the
Successor Issuer (if not an Issuer) shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee,
all the obligations of the predecessor Issuer under the Securities and
this Indenture;
(2) immediately after giving pro forma effect to such
transaction (and treating any Indebtedness which becomes an obligation
of the Successor Issuer as a
90
result of such transaction as having been Incurred by such Successor
Issuer at the time of such transaction), no Default shall have occurred
and be continuing and no Change of Control shall have occurred; and
(3) the Company shall have delivered to the Trustee an
Officers' Certificate of the Company and an Opinion of Counsel, each
stating that such consolidation, merger or transfer and such
supplemental indenture (if any) comply with this Indenture.
A Successor Issuer shall be the successor to the predecessor
Issuer and shall succeed to, and be substituted for, and may exercise every
right and power of, the predecessor Issuer under this Indenture, and the
predecessor Issuer, except in the case of a lease, shall be released from the
obligation to pay the principal of and interest on the Securities.
(c) The Company shall not permit any Subsidiary Guarantor
to consolidate with or merge with or into, or convey, transfer or lease, in one
transaction or a series of transactions, all or substantially all of its assets
to any Person unless:
(1) except in the case of a Subsidiary Guarantor that has been
disposed of in its entirety to another Person (other than to the
Company or a Subsidiary of the Company), whether through a merger,
consolidation or sale of Capital Stock or assets, the resulting,
surviving or transferee Person (if not such Subsidiary) shall expressly
assume, by a Guaranty Agreement, all the obligations of such
Subsidiary, if any, under its Subsidiary Guaranty;
(2) immediately after giving effect to such transaction or
transactions on a pro forma basis (and treating any Indebtedness which
becomes an obligation of the resulting, surviving or transferee Person
as a result of such transaction as having been issued by such Person at
the time of such transaction), no Default shall have occurred and be
continuing; and
(3) the Company delivers to the Trustee an Officers'
Certificate of the Company and an Opinion of
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Counsel, each stating that such consolidation, merger or transfer and
such Guaranty Agreement, if any, complies with this Indenture.
ARTICLE 6
Defaults and Remedies
SECTION 6.01. Events of Default. An "Event of Default" occurs
if:
(1) the Issuers default in any payment of interest or any
Additional Amounts on any Security when the same becomes due and
payable, whether or not such payment shall be prohibited by Article 10,
and such default continues for a period of 30 days;
(2) the Issuers (i) default in the payment of the principal of
any Security when the same becomes due and payable at its Stated
Maturity, upon optional redemption, upon declaration of acceleration or
otherwise, whether or not such payment shall be prohibited by Article
10 or (ii) fail to purchase Securities when required pursuant to this
Indenture or the Securities, whether or not such redemption or purchase
shall be prohibited by Article 10;
(3) the Issuers or the Company fail to comply with (i) Section
4.09 or (ii) Section 5.01;
(4) the Company fails to comply with Section 4.02, 4.03 (other
than paragraphs (a) and (b) thereof), 4.04, 4.05, 4.06, 4.07, 4.08,
4.10, 4.11, 4.12 or 4.13 (other than a failure to purchase Securities
when required under Section 4.06, 4.10 or 4.11) and such failure
continues for 30 days after the notice specified below;
(5) the Company, the Issuers or any Subsidiary Guarantor fail
to comply with any of its agreements in the Securities or this
Indenture or a Subsidiary Guaranty (other than those referred to clause
(1), (2), (3) or (4) above and those set forth in Sections 4.03(a) and
4.03(b)) and such failure continues for 60 days after the notice
specified below;
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(6) Indebtedness of the Company, the Issuers or any
Significant Subsidiary is not paid within any applicable grace period
after final maturity or is accelerated by the holders thereof because
of a default and the total amount of such Indebtedness unpaid or
accelerated exceeds US$10.0 million, or its foreign currency equivalent
at the time (other than Indebtedness of Goodman Fielder or any of its
Subsidiaries that is outstanding on the date Goodman Fielder becomes a
Subsidiary of the Company and that becomes unpaid or accelerated prior
to the date on which individuals appointed or nominated by the Company
or any of its Affiliates constitute a majority of the Board of
Directors of Goodman Fielder (other than Goodman Fielder and its
Affiliates immediately prior to such time));
(7) the Company, an Issuer or any Significant Subsidiary
pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case;
(C) consents to the appointment of a Custodian of it
or for any substantial part of its property; or
(D) makes a general assignment for the benefit of its
creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(8) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company, an Issuer or
any Significant Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company, an Issuer or
any Significant Subsidiary or, in the case of the Company or
any Significant Subsidiary, for all or substantially all of
its
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property, or, in the case of an Issuer, for any substantial
part of its property; or
(C) orders the winding up or liquidation of the
Company, an Issuer or any Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order
or decree remains unstayed and in effect for 60 consecutive days;
(9) an administrator or controller (as such terms are defined
in the Corporations Act 2001 of Australia) is appointed to the Company,
an Issuer or any Significant Subsidiary and is not removed within 60
days;
(10) any final judgment or decree for the payment of money in
excess of US$10.0 million (to the extent not covered by available
insurance) or its foreign currency equivalent at the time is entered
against the Company, an Issuer or any Significant Subsidiary, remains
outstanding for a period of 60 consecutive days following the entry of
such final judgment or decree and is not discharged, waived, vacated or
the execution thereof stayed within such period of 60 consecutive days;
or
(11) the Company Guaranty or a Subsidiary Guaranty ceases to
be in full force and effect (other than, in the case of a Subsidiary
Guaranty, in accordance with the terms of such Subsidiary Guaranty or
as a result of a change in law) or the Company or any Subsidiary
Guarantor denies or disaffirms its obligations under the Company
Guaranty or its Subsidiary Guaranty, as the case may be.
The foregoing will constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body.
The term "Bankruptcy Law" means Title 11, United States Code,
Chapter 5, Corporations Act 2001 (Commonwealth of Australia) or any similar
United States Federal or
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state, Australian or other non-United States law for the relief of debtors. The
term "Custodian" means any receiver, trustee, assignee, liquidator, custodian,
administrator, controller or similar official under any Bankruptcy Law.
A Default under clauses (4) or (5) is not an Event of Default
until the Company receives written notice from the Trustee or the holders of at
least 25% in principal amount of the outstanding Securities specifying the
Default and the Company does not cure such Default within the time specified
after receipt of such notice. Such notice must specify the Default, demand that
it be remedied and state that such notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30 days after
the occurrence thereof, written notice in the form of an Officers' Certificate
of the Company of any Event of Default under clause (6) or (11) and any event
which with the giving of notice or the lapse of time would become an Event of
Default under clause (4), (5), or (10), its status and what action the Company
is taking or proposes to take with respect thereto.
SECTION 6.02. Acceleration. If an Event of Default (other than
an Event of Default specified in Section 6.01(7), (8) or (9) with respect to the
Issuers or the Company) occurs and is continuing and has not been waived
pursuant to Section 6.04, the Trustee by notice to the Company, or the Holders
of at least 25% in principal amount of the Securities by notice to the Company
and the Trustee, may declare the principal of and accrued but unpaid interest on
all the Securities to be due and payable. Upon such a declaration, such
principal and interest shall be due and payable immediately. If an Event of
Default specified in Section 6.01(7), (8) or (9) with respect to the Issuers or
the Company occurs, the principal of and interest on all the Securities shall
ipso facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Securityholders. The Holders of a
majority in principal amount of the Securities by notice to the Trustee may
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default have
been cured or
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waived except nonpayment of principal or interest that has become due solely
because of acceleration. No such rescission shall affect any subsequent Default
or impair any right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a
majority in principal amount of the Securities by notice to the Trustee may
waive an existing Default and its consequences except (i) a Default in the
payment of the principal of or interest on a Security (ii) a Default arising
from the failure to redeem or purchase any Security when required pursuant to
this Indenture or (iii) a Default in respect of a provision that under Section
9.02 cannot be amended without the consent of each Securityholder affected. When
a Default is waived, it is deemed cured, but no such waiver shall extend to any
subsequent or other Default or impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority
in principal amount of the Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to
the rights of other Securityholders or would involve the Trustee in personal
liability; provided, however, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such
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direction. Prior to taking any action hereunder, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against all losses
and expenses caused by taking or not taking such action.
SECTION 6.06. Limitation on Suits. Except to enforce the right
to receive payment of principal, premium (if any) or interest when due, no
Securityholder may pursue any remedy with respect to this Indenture or the
Securities unless:
(1) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
(2) the Holders of at least 25% in principal amount of the
Securities make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
(5) the Holders of a majority in principal amount of the
Securities do not give the Trustee a direction inconsistent with the
request within such 60-day period.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over
another Securityholder.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of and interest on the Securities held by such
Holder, on or after the respective due dates expressed in the Securities, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of
Default specified in Section 6.01(1) or (2) occurs and is continuing, the
Trustee may recover judgment in its
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own name and as trustee of an express trust against the Issuers for the whole
amount then due and owing (together with interest on any unpaid interest to the
extent lawful) and the amounts provided for in Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee
may file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceedings relative to the Issuers, its creditors or
its property and, unless prohibited by law or applicable regulations, may vote
on behalf of the Holders in any election of a trustee in bankruptcy or other
Person performing similar functions, and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and its counsel, and any other amounts due the Trustee under Section
7.07.
SECTION 6.10. Priorities. If the Trustee collects any money or
property pursuant to this Article 6, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to holders of Senior Indebtedness of the Issuers and,
if such money or property has been collected from a Securities
Guarantor, to holders of Senior Indebtedness of such Securities
Guarantor, in each case to the extent required by Article 10 and 12;
THIRD: to Securityholders for amounts due and unpaid on the
Securities for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for principal and interest, respectively; and
FOURTH: to the Issuers.
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The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section. At least 15 days before
such record date, the Issuers shall mail to each Securityholder and the Trustee
a notice that states the record date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by
Holders of more than 10% in principal amount of the Securities.
SECTION 6.12. Waiver of Stay or Extension Laws. The Issuers
and the Company (to the extent they may lawfully do so) shall not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Issuers and the Company (to the extent that they may lawfully
do so) hereby expressly waives all benefit or advantage of any such law, and
shall not hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE 7
Trustee
SECTION 7.01. Duties of Trustee. (a) If an Event of Default
has occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent Person would exercise or use
99
under the circumstances in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations stated herein).
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its own wilful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b)
of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b) and (c) of this
Section.
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(e) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing with the
Issuers.
(f) Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder or in the exercise of any of
its rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(h) Every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section and to the provisions of the
TIA.
SECTION 7.02. Rights of Trustee. (a) The Trustee may
conclusively rely on any document believed by it to be genuine and to have been
signed or presented by the proper person. The Trustee need not investigate any
fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it
may require an Officers' Certificate from the Company or the Issuers or an
Opinion of Counsel. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such Officers' Certificate or Opinion
of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; provided, however, that the Trustee's conduct does
not constitute wilful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice
or opinion of counsel with respect to legal
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matters relating to this Indenture and the Securities shall be full and complete
authorization and protection from liability in respect to any action taken,
omitted or suffered by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.
(f) Any request or direction of the Issuers mentioned
herein will be sufficiently evidenced by an Issuer Order and any resolution of
the Board will be sufficiently evidenced by a board resolution.
(g) The Trustee will be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or indemnity satisfactory to the
Trustee against the costs, expenses, and liabilities which might be incurred by
it in compliance with such request or direction.
(h) The Trustee will not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness, or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it will be
entitled to examine the books, records, and premises of the Issuers, personally
or by agent or attorney at the sole cost of the Issuers and shall incur no
liability or additional liability of any kind by reason of such inquiry or
investigation.
(i) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Securities and this Indenture.
(j) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, are
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extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and to each agent, custodian and other Person employed to act
hereunder.
(k) The Trustee may request that the Issuers deliver an
Officers' Certificate of the Issuers, the Company or a Subsidiary Guarantor
setting forth the names of individuals and/or titles of officers authorized at
such time to take specified actions pursuant to this Indenture, which Officers'
Certificate may be signed by any person authorized to sign an Officers'
Certificate, including any person specified as so authorized in any such
certificate previously delivered and not superseded.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Issuers or their Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar
or co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Issuers'
use of the proceeds from the Securities, and it shall not be responsible for any
statement of the Issuers in this Indenture or in any document issued in
connection with the sale of the Securities or in the Securities other than the
Trustee's certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Securityholder notice of the Default within 90 days after it occurs. Except in
the case of a Default in payment of principal of or interest on any Security,
the Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of Securityholders.
SECTION 7.06. Reports by Trustee to Holders. As promptly as
practicable after each May 15 beginning with the May 15 following the date of
this Indenture, and in any
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event prior to July 15 in each year, the Trustee shall mail to each
Securityholder a brief report dated as of May 15 that complies with TIA Section
313(a). The Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange (if any) on
which the Securities are listed. The Issuers agree to notify promptly the
Trustee whenever the Securities become listed on any stock exchange and of any
delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Issuers shall
pay to the Trustee from time to time reasonable compensation for all services
rendered by it hereunder as the parties shall agree from time to time. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuers shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it in
connection with the performance of services hereunder, including costs of
collection, in addition to the compensation for its services. Such expenses
shall include the reasonable compensation and expenses, disbursements and
advances of the Trustee's agents, counsel, accountants and experts. The Issuers
and the Company shall, jointly and severally, indemnify the Trustee against any
and all loss, liability or expense (including attorneys' fees and reasonable
expenses) incurred by it in connection with the administration of this trust and
the performance of its duties hereunder. The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. Failure by the Trustee to
so notify the Company shall not relieve the Issuers or the Company of its
obligations hereunder. The Issuers and the Company shall defend the claim and
the Trustee may have separate counsel and the Company shall pay the fees and
expenses of such counsel. Neither the Issuers nor the Company need reimburse any
expense or indemnify against any loss, liability or expense incurred by the
Trustee through the Trustee's own wilful misconduct, negligence or bad faith.
To secure the Issuers' and the Company's payment obligations
in this Section, the Trustee shall have a lien prior to the Securities on all
money or property held or collected by the Trustee, in its capacity as Trustee,
other
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than money or property held in trust to pay principal of and interest on
particular Securities. Amounts advanced to the Trustee pursuant to this Section
7.07 shall be deemed property of the Trustee and not of the Company.
The Issuers' and the Company's payment obligations pursuant to
this Section shall survive the discharge of this Indenture and the resignation
or removal of the Trustee. When the Trustee incurs expenses after the occurrence
of a Default specified in Section 6.01(7) or (8) with respect to the Issuers or
the Company, the expenses are intended to constitute expenses of administration
under the Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign
at any time by so notifying the Issuers in writing at least 30 days prior to the
date of the proposed resignation. The Holders of a majority in principal amount
of the Securities may remove the Trustee by so notifying the Trustee and may
appoint a successor Trustee. The Issuers shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Issuers or by the
Holders of a majority in principal amount of the Securities and such Holders do
not reasonably promptly appoint a successor Trustee, or if a vacancy exists in
the office of Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Issuers shall promptly appoint a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and
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duties of the Trustee under this Indenture. The successor Trustee shall mail a
notice of its succession to Securityholders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, subject to
the lien provided for in Section 7.07.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, at the
reasonable expense of the Issuers, or the Holders of 10% in principal amount of
the Securities may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to
this Section, the Issuers' and the Company's obligations under Section 7.07
shall continue for the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have.
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SECTION 7.10. Eligibility; Disqualification. The Trustee shall
at all times satisfy the requirements of TIA Section 310(a). The Trustee shall
have a combined capital and surplus of at least US$50,000,000 as set forth in
its most recent published annual report of condition. The Trustee shall comply
with TIA Section 310(b); provided, however, that there shall be excluded from
the operation of TIA Section 310(b)(1) any indenture or indentures under which
other securities or certificates of interest or participation in other
securities of the Issuers are outstanding if the requirements for such exclusion
set forth in TIA Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against
Issuers. The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities;
Defeasance. (a) When (1) the Issuers deliver to the Trustee all outstanding
Securities (other than Securities replaced pursuant to Section 2.07) for
cancelation or (2) all outstanding Securities have become due and payable,
whether at maturity or on a redemption date as a result of the mailing of a
notice of redemption pursuant to Article 3 hereof and the Issuers irrevocably
deposit with the Trustee funds sufficient to pay at maturity or upon redemption
all outstanding Securities, including interest thereon to maturity or such
redemption date (other than Securities replaced pursuant to Section 2.07), and
if in either case the Issuers pay all other sums payable hereunder by the
Issuers or the Company, then this Indenture shall, subject to Section 8.01(c),
cease to be of further effect. The Trustee shall acknowledge satisfaction and
discharge of this Indenture on demand of the Issuers accompanied by an Officers'
Certificate of the Issuers and an Opinion of Counsel and at the cost and expense
of the Issuers.
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(b) Subject to Sections 8.01(c) and 8.02, the Issuers and the
Company at any time may terminate (1) all their obligations under the Securities
and this Indenture ("legal defeasance option") or (2) their obligations under
Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13
and 4.14 and the operation of Sections 6.01(3)(i), 6.01(4), 6.01(6), 6.01(7),
6.01(8), 6.01(9) and 6.01(10) (but, in the case of Sections 6.01(7), (8) and
(9), with respect only to Significant Subsidiaries) and the limitations
contained in Section 5.01(a)(3) ("covenant defeasance option"). The Issuers may
exercise its legal defeasance option notwithstanding its prior exercise of its
covenant defeasance option.
If the Issuers exercise their legal defeasance option, payment
of the Securities may not be accelerated because of an Event of Default with
respect thereto. If the Issuers exercise their covenant defeasance option,
payment of the Securities may not be accelerated because of an Event of Default
specified in Sections 6.01(3)(i), 6.01(4), 6.01(6), 6.01(7), 6.01(8), 6.01(9)
and 6.01(10) (but, in the case of Sections 6.01(7), (8) and (9), with respect
only to Significant Subsidiaries) or because of the failure of the Company to
comply with Section 5.01(a)(3). If the Issuers exercise their legal defeasance
option or its covenant defeasance option, each Subsidiary Guarantor, if any,
shall be released from all its obligations with respect to its Subsidiary
Guaranty.
Upon satisfaction of the conditions set forth herein and upon
request of the Issuers, the Trustee shall acknowledge in writing the discharge
of those obligations that the Issuers terminate.
(c) Notwithstanding clauses (a) and (b) above, the Issuers'
and the Company's obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08,
7.07 and 7.08 and in this Article 8 shall survive until the Securities have been
paid in full. Thereafter, the Issuers' obligations in Sections 7.07, 8.04 and
8.05 shall survive.
SECTION 8.02. Conditions to Defeasance. The Issuers may
exercise its legal defeasance option or its covenant defeasance option only if:
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(1) the Issuers irrevocably deposit in trust with the Trustee
money or U.S. Government Obligations for the payment of principal of
and interest on the Securities to maturity or redemption, as the case
may be;
(2) the Issuers deliver to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and
without reinvestment on the deposited U.S. Government Obligations plus
any deposited money without investment will provide cash at such times
and in such amounts as will be sufficient to pay principal and interest
when due on all the Securities to maturity or redemption, as the case
may be;
(3) 123 days pass after the deposit is made and during the
123-day period no Default specified in Sections 6.01(7) or (8) with
respect to the Issuers or the Company occurs which is continuing at the
end of the period;
(4) the deposit does not constitute a default under any other
material agreement binding on the Issuers or the Company and is not
prohibited by Article 10 or Article 12;
(5) the Issuers deliver to the Trustee an Opinion of Counsel
to the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under
the Investment Company Act of 1940;
(6) in the case of the legal defeasance option, the Issuers
shall have delivered to the Trustee an Opinion of Counsel stating that
(A) the Issuers have received from, or there has been published by, the
Internal Revenue Service a ruling, or (B) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Securityholders will not recognize
income, gain or loss for United States
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Federal income tax purposes as a result of such defeasance and will be
subject to United States Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
defeasance had not occurred;
(7) in the case of the covenant defeasance option, the Issuers
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Securityholders will not recognize income, gain or loss for
United States Federal income tax purposes as a result of such covenant
defeasance and will be subject to United States Federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such covenant defeasance had not occurred;
(8) if any of the Issuers is organized under the laws of a
jurisdiction outside of Australia or the United States at the time,
such Issuer delivers to the Trustee an Opinion of Counsel in the
jurisdiction of organization of such Issuer to the effect that Holders
will not recognize income, gain or loss for income tax purposes of such
jurisdiction as a result of such deposit and defeasance, and will be
subject to income tax of such jurisdiction on the same amounts, and in
the same manner and at the same times as would have been the case if
such deposit and defeasance, had not occurred;
(9) the Issuers deliver to the Trustee an Opinion of Counsel
in Australia to the effect that Holders will not recognize income, gain
or loss income tax purposes of such jurisdiction as a result of such
deposit and defeasance, and will be subject to income tax of such
jurisdiction on the same amounts, and in the same manner and at the
same times as would have been the case if such deposit and defeasance,
had not occurred; and
(10) the Issuers deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Securities as
contemplated by this Article 8 have been complied with.
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Before or after a deposit, the Issuers may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article 3.
SECTION 8.03. Application of Trust Money. The Trustee shall
hold in trust money or U.S. Government Obligations deposited with it pursuant to
this Article 8. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of and interest on the Securities. Money
and securities so held in trust are not subject to Article 10.
SECTION 8.04. Repayment to Issuers. The Trustee and the Paying
Agent shall promptly turn over to the Issuers upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Issuers upon request any money held by
them for the payment of principal or interest that remains unclaimed for two
years, and, thereafter, Securityholders entitled to the money must look to the
Issuers for payment as general creditors.
SECTION 8.05. Indemnity for Government Obligations. The
Issuers shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against deposited U.S. Government Obligations or
the principal and interest received on such U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article 8 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Issuers' and the Company's
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to this Article 8 until
such time as the Trustee or Paying Agent is permitted to apply all such money or
U.S. Government Obligations in accordance with this Article 8; provided,
however, that, if the Issuers have made any payment of interest on or
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principal of any Securities because of the reinstatement of its obligations, the
Issuers shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
ARTICLE 9
Amendments
SECTION 9.01. Without Consent of Holders. The Issuers, the
Company, the Subsidiary Guarantors and the Trustee may amend this Indenture or
the Securities without notice to or consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency
or any technical default arising from the Goodman Fielder Acquisition;
(2) to provide for the assumption by a successor corporation
of the obligations of the Company, the Issuers, or any Subsidiary
Guarantor to the extent permitted by this Indenture;
(3) to provide for uncertificated Securities in addition to or
in place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(4) to make any change in Article 10 or Article 12 that would
limit or terminate the benefits available to any holder of Senior
Indebtedness of an Issuer, the Company or of a Subsidiary Guarantor (or
Representatives therefor) under Article 10 or 12;
(5) to add guarantees with respect to the Securities,
including any Subsidiary Guaranty, or to secure the Securities;
(6) to add to the covenants of the Company, the Issuers or a
Subsidiary Guarantor for the benefit of the Holders or to surrender any
right or power herein
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conferred upon the Company, the Issuers or a Subsidiary Guarantor;
(7) to comply with any requirements of the SEC in connection
with qualifying, or maintaining the qualification of, this Indenture
under the TIA; or
(8) to make any change that does not adversely affect the
rights of any Securityholder.
An amendment under this Section may not make any change that
adversely affects the rights under Article 10 or 12 of any holder of Senior
Indebtedness of the Company, the Issuers or of a Subsidiary Guarantor then
outstanding unless the holders of such Senior Indebtedness (or any group or
representative thereof authorized to give a consent) consent to such change.
After an amendment under this Section becomes effective, the
Issuers shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section.
SECTION 9.02. With Consent of Holders. The Company, the
Issuers, the Subsidiary Guarantors and the Trustee may amend this Indenture or
the Securities without notice to any Securityholder but with the written consent
of the Holders of at least a majority in principal amount of the Securities then
outstanding (including consents obtained in connection with a tender offer or
exchange for the Securities). However, without the consent of each
Securityholder affected thereby, an amendment may not:
(1) reduce the amount of Securities whose Holders must consent
to an amendment;
(2) reduce the rate of or extend the time for payment of
interest on any Security;
(3) reduce the principal amount of or extend the Stated
Maturity of any Security;
(4) reduce the amount payable upon the redemption of any
Security or change the time at which any
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Security may be redeemed in accordance with Article 3 or make any
change in Section 4.09;
(5) make any Security payable in money other than that stated
in the Security;
(6) impair the right of any Holder to receive payment of
principal of and interest on such Holder's Securities on or after the
due dates therefor or to institute suit for the enforcement of any
payment on or with respect to such Holder's Securities, including
pursuant to the Company Guaranty or any Subsidiary Guaranty;
(7) make any change in the ranking or priority of any Security
that would adversely affect the Securityholders;
(8) make any change in Section 6.04 or 6.07 or the second
sentence of this Section;
(9) make any change in the Company Guaranty or any Subsidiary
Guaranty that would adversely affect the Securityholders; or
(10) make any change in Section 4.14 that adversely affects
the rights of any Securityholder or amend the terms of the Securities
or this Indenture in a way that would result in the loss of an
exemption from any of the Taxes described therein.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
An amendment under this Section may not make any change that
adversely affects the rights under Article 10 or 12 of any holder of Senior
Indebtedness of the Company, an Issuer or of a Subsidiary Guarantor then
outstanding unless the holders of such Senior Indebtedness (or any group or
representative thereof authorized to give a consent) consent to such change.
After an amendment under this Section becomes effective, the
Issuers shall mail to Securityholders a notice briefly describing such
amendment. The failure to
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give such notice to all Securityholders, or any defect therein, shall not impair
or affect the validity of an amendment under this Section.
SECTION 9.03. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities shall comply with the TIA as then
in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers. A
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent or waiver as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation before the date the amendment or waiver becomes effective. After an
amendment or waiver becomes effective, it shall bind every Securityholder. An
amendment or waiver becomes effective upon the execution of such amendment or
waiver by the Trustee.
The Issuers may, but shall not be obligated to, fix a record
date for the purpose of determining the Securityholders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Securityholders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.
SECTION 9.05. Notation on or Exchange of Securities. If an
amendment or waiver changes the terms of a Security, the Trustee may require the
Holder of the Security to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Security regarding the changed terms and return it
to the Holder. Alternatively, if the Issuers or the Trustee so determines, the
Issuers in exchange for the Security shall issue and the Trustee shall
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authenticate a new Security that reflects the changed terms. Failure to make the
appropriate notation or to issue a new Security shall not affect the validity of
such amendment or waiver.
SECTION 9.06. Trustee To Sign Amendments. The Trustee shall
sign any amendment authorized pursuant to this Article 9 if the amendment does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may but need not sign it. In signing such
amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Officers' Certificate of the Issuers and an
Opinion of Counsel stating that such amendment is authorized or permitted by
this Indenture.
SECTION 9.07. Payment for Consent. Neither the Issuers, the
Company nor any Affiliate of an Issuer or the Company shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this Indenture
or the Securities unless such consideration is offered to be paid to all Holders
that so consent, waive or agree to amend in the time frame set forth in
solicitation documents relating to such consent, waiver or agreement to amend.
ARTICLE 10
Subordination
SECTION 10.01. Agreement To Subordinate. The Issuers agree,
and each Securityholder by accepting a Security agrees, that the Indebtedness
evidenced by the Securities is subordinated in right of payment, to the extent
and in the manner provided in this Article 10, to the prior payment in full in
cash of all Senior Indebtedness of the Issuers and that the subordination is for
the benefit of and enforceable by the holders of such Senior Indebtedness. The
Securities shall in all respects rank pari passu with all other Senior
Subordinated Indebtedness of the Issuers and only Indebtedness of the Issuers
which is Senior Indebtedness of the Issuers shall
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rank senior to the Securities in accordance with the provisions set forth
herein. All provisions of this Article 10 shall be subject to Section 10.12.
SECTION 10.02. Liquidation, Dissolution, Bankruptcy. Upon any
payment or distribution of the assets of an Issuer to creditors upon a total or
partial liquidation, or a total or partial dissolution of an Issuer or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding for
the benefit of creditors relating to such Issuer or its property:
(1) holders of Senior Indebtedness of such Issuer shall be
entitled to receive payment in full in cash of such Senior Indebtedness
before Securityholders shall be entitled to receive any payment of
principal of or interest on the Securities; and
(2) until such Senior Indebtedness of such Issuer is paid in
full in cash, any payment or distribution to which Securityholders
would be entitled but for this Article 10 shall be made to holders of
such Senior Indebtedness as their interests may appear, except that
Securityholders may receive shares of Capital Stock and any debt
securities that are subordinated to such Senior Indebtedness to at
least the same extent as the Securities.
SECTION 10.03. Default on Senior Indebtedness of the Issuers.
The Issuers shall not pay the principal of or interest on the Securities or make
any deposit pursuant to Section 8.01 and may not purchase, redeem or otherwise
retire any Securities (collectively, "pay the Securities") if either of the
following (a "Payment Default") occurs (1) any Obligation on any Designated
Senior Indebtedness of the Issuers is not paid in full in cash when due; or (2)
any other default on Designated Senior Indebtedness of the Issuers occurs and
the maturity of such Designated Senior Indebtedness is accelerated in accordance
with its terms unless, in either case, the Payment Default has been cured or
waived and any such acceleration has been rescinded or such Designated Senior
Indebtedness has been paid in full in cash; provided, however, that the Issuers
shall be entitled to pay the Securities without regard to the foregoing if the
Issuers and the Trustee receive written notice approving such payment from the
Representatives of
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all Designated Senior Indebtedness with respect to which the Payment Default has
occurred and is continuing. During the continuance of any default (other than a
Payment Default) with respect to any Designated Senior Indebtedness of the
Issuers pursuant to which the maturity thereof may be accelerated immediately
without further notice (except such notice as may be required to effect such
acceleration) or the expiration of any applicable grace periods, the Issuers
shall not pay the Securities for a period (a "Payment Blockage Period")
commencing upon the receipt by the Trustee of (with a copy to the Issuers)
written notice (a "Blockage Notice") of such default from the Representative of
such Designated Senior Indebtedness specifying an election to effect a Payment
Blockage Period and ending 179 days thereafter. The Payment Blockage Period
shall end earlier if such Payment Blockage Period is terminated (1) by written
notice to the Trustee and the Issuers from the Person or Persons who gave such
Blockage Notice; (2) because the default giving rise to such Blockage Notice is
cured, waived or otherwise no longer continuing; or (3) because such Designated
Senior Indebtedness has been discharged or repaid in full in cash.
Notwithstanding the provisions described in the immediately preceding two
sentences (but subject to the provisions contained in the first sentence of this
Section), unless the holders of such Designated Senior Indebtedness or the
Representative of such Designated Senior Indebtedness shall have accelerated the
maturity of such Designated Senior Indebtedness, the Issuers shall be entitled
to resume payments on the Securities after termination of such Payment Blockage
Period. The Securities shall not be subject to more than one Payment Blockage
Period in any consecutive 360-day period, irrespective of the number of defaults
with respect to Designated Senior Indebtedness of the Issuers during such
period. For purposes of this Section, no default or event of default which
existed or was continuing on the date of the commencement of any Payment
Blockage Period with respect to the Designated Senior Indebtedness of the
Issuers initiating such Payment Blockage Period shall be, or be made, the basis
of the commencement of a subsequent Payment Blockage Period by the
Representative of such Designated Senior Indebtedness, unless such default or
event of default shall have been cured or waived for a period of not less than
90 consecutive days.
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SECTION 10.04. Acceleration of Payment of Securities. If
payment of the Securities is accelerated because of an Event of Default, the
Issuers or the Trustee shall promptly notify the holders of the Designated
Senior Indebtedness of the Issuers (or their Representatives) of the
acceleration.
SECTION 10.05. When Distribution Must Be Paid Over. If a
distribution is made to Securityholders that because of this Article 10 should
not have been made to them, the Securityholders who receive the distribution
shall hold it in trust for holders of Senior Indebtedness of the Issuers and pay
it over to them as their interests may appear.
SECTION 10.06. Subrogation. After all Senior Indebtedness of
the Issuers is paid in full and until the Securities are paid in full,
Securityholders shall be subrogated to the rights of holders of such Senior
Indebtedness to receive distributions applicable to such Senior Indebtedness. A
distribution made under this Article 10 to holders of such Senior Indebtedness
which otherwise would have been made to Securityholders is not, as between the
Issuers and Securityholders, a payment by the Issuers on such Senior
Indebtedness.
SECTION 10.07. Relative Rights. This Article 10 defines the
relative rights of Securityholders and holders of Senior Indebtedness of the
Issuers. Nothing in this Indenture shall:
(1) impair, as between the Issuers and Securityholders, the
obligation of the Issuers, which is absolute and unconditional, to pay
principal of and interest on the Securities in accordance with their
terms; or
(2) prevent the Trustee or any Securityholder from exercising
its available remedies upon a Default, subject to the rights of holders
of Senior Indebtedness of the Issuers to receive distributions
otherwise payable to Securityholders.
SECTION 10.08. Subordination May Not Be Impaired by Issuers.
No right of any holder of Senior Indebtedness of the Issuers to enforce the
subordination of the Indebtedness evidenced by the Securities shall be impaired
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by any act or failure to act by the Issuers or by their failure to comply with
this Indenture.
SECTION 10.09. Rights of Trustee and Paying Agent.
Notwithstanding Section 10.03, the Trustee or Paying Agent shall continue to
make payments on the Securities and shall not be charged with knowledge of the
existence of facts that under this Article 10 would prohibit the making of any
such payments unless, not less than two Business Days prior to the date of such
payment, a Responsible Officer of the Trustee receives notice satisfactory to it
that such payments are prohibited by this Article 10. The Issuers, the Registrar
or co-registrar, the Paying Agent, a Representative or a holder of Senior
Indebtedness of the Issuers shall be entitled to give the notice; provided,
however, that, if an issue of Senior Indebtedness of the Issuers has a
Representative, only the Representative shall be entitled to give the notice.
The Trustee in its individual or any other capacity shall be
entitled to hold Senior Indebtedness of the Issuers with the same rights it
would have if it were not Trustee. The Registrar and co-registrar and the Paying
Agent shall be entitled to do the same with like rights. The Trustee shall be
entitled to all the rights set forth in this Article 10 with respect to any
Senior Indebtedness of the Issuers which may at any time be held by it, to the
same extent as any other holder of such Senior Indebtedness; and nothing in
Article 7 shall deprive the Trustee of any of its rights as such holder. Nothing
in this Article 10 shall apply to claims of, or payments to, the Trustee under
or pursuant to Section 7.07.
SECTION 10.10. Distribution or Notice to Representative.
Whenever any Person is to make a distribution or give a notice to holders of
Senior Indebtedness of the Issuers, such Person shall be entitled to make such
distribution or give such notice to their Representative (if any).
SECTION 10.11. Article 10 Not to Prevent Events of Default or
Limit Right To Accelerate. The failure to make a payment pursuant to the
Securities by reason of any provision in this Article 10 shall not be construed
as preventing the occurrence of a Default. Nothing in this
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Article 10 shall have any effect on the right of the Securityholders or the
Trustee to accelerate the maturity of the Securities.
SECTION 10.12. Trust Moneys Not Subordinated. Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations held in trust under Article 8 by the Trustee for
the payment of principal of and interest on the Securities shall not be
subordinated to the prior payment of any Senior Indebtedness of the Issuers or
subject to the restrictions set forth in this Article 10, and none of the
Securityholders shall be obligated to pay over any such amount to the Issuers or
any holder of Senior Indebtedness of the Issuers or any other creditor of the
Issuers.
SECTION 10.13. Trustee Entitled to Rely. Upon any payment or
distribution pursuant to this Article 10, the Trustee and the Securityholders
shall be entitled to conclusively rely (1) upon any order or decree of a court
of competent jurisdiction in which any proceedings of the nature referred to in
Section 10.02 are pending, (2) upon a certificate of the liquidating trustee or
agent or other Person making such payment or distribution to the Trustee or to
the Securityholders or (3) upon the Representatives of Senior Indebtedness of
the Issuers for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of such Senior Indebtedness and
other Indebtedness of the Issuers, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 10. In the event that the Trustee determines, in good
faith, that evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness of the Issuers to participate in any payment or
distribution pursuant to this Article 10, the Trustee shall be entitled to
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of such Senior Indebtedness held by such Person, the
extent to which such Person is entitled to participate in such payment or
distribution and other facts pertinent to the rights of such Person under this
Article 10, and, if such evidence is not furnished, the Trustee shall be
entitled to defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment. The provisions of
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Sections 7.01 and 7.02 shall be applicable to all actions or omissions of
actions by the Trustee pursuant to this Article 10.
SECTION 10.14. Trustee to Effectuate Subordination. Each
Securityholder by accepting a Security authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Securityholders and the holders of
Senior Indebtedness of the Issuers as provided in this Article 10 and appoints
the Trustee as attorney-in-fact for any and all such purposes.
SECTION 10.15. Trustee Not Fiduciary for Holders of Senior
Indebtedness of the Issuers. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness of the Issuers and shall
not be liable to any such holders if it shall mistakenly pay over or distribute
to Securityholders or the Issuers or any other Person, money or assets to which
any holders of Senior Indebtedness of the Issuers shall be entitled by virtue of
this Article 10 or otherwise.
SECTION 10.16. Reliance by Holders of Senior Indebtedness of
the Issuers on Subordination Provisions. Each Securityholder by accepting a
Security acknowledges and agrees that the foregoing subordination provisions
are, and are intended to be, an inducement and a consideration to each holder of
any Senior Indebtedness of the Issuers, whether such Senior Indebtedness was
created or acquired before or after the issuance of the Securities, to acquire
and continue to hold, or to continue to hold, such Senior Indebtedness and such
holder of such Senior Indebtedness shall be deemed conclusively to have relied
on such subordination provisions in acquiring and continuing to hold, or in
continuing to hold, such Senior Indebtedness.
ARTICLE 11
Guaranties
SECTION 11.01. Company Guaranty. The Company hereby
unconditionally and irrevocably guarantees to each Holder and to the Trustee and
its successors and assigns (a) the full and punctual payment of principal and
interest on the Securities (including any Additional Amounts payable
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in respect thereof) when due, whether at maturity, by acceleration, by
redemption or otherwise, and all other monetary obligations of the Issuers under
this Indenture and the Securities, (b) the full and punctual performance within
applicable grace periods of all other obligations of the Issuers under this
Indenture and the Securities (all the foregoing being hereinafter collectively
called the "Guarantied Obligations") and (c) the full and punctual payment of
the principal, interest, and premium, if any, payable in respect of the
Subsidiary Guaranty of Burns Philp Treasury (Europe) B.V. and Burns Philp
Treasury (Australia) Ltd. The Company hereby agrees that its obligations
hereunder shall be as if it were a principal debtor and not merely a surety, and
shall be absolute and unconditional, irrespective of, and shall be unaffected
by, any invalidity, irregularity or unenforceability of the Securities or this
Indenture, any failure to enforce the provisions of the Securities or this
Indenture, any waiver, modification or indulgence granted to the Company with
respect thereto, by the Holders of the Securities or the Trustee, or any other
circumstance which may otherwise constitute a legal or equitable discharge of a
surety or guarantor; provided, however, that, notwithstanding the foregoing, no
such waiver, modification or indulgence shall, without the consent of the
Company, increase the principal amount of a Security or the interest rate
thereon or increase any premium payable upon redemption thereof.
The Company hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of merger or bankruptcy of
the Issuers, any right to require a proceeding first against the Issuers, the
benefit of discussion, protest or notice with respect to any Security or the
Indebtedness evidenced thereby and all demands whatsoever, and covenants that
this Company Guaranty will not be discharged with respect to any Security except
as provided in Section 5.01.
The Company Guaranty is, to the extent and in the manner set
forth in Article 12, subordinated and subject in right of payment to the prior
payment in full of the principal of and premium, if any, and interest on all
Senior Indebtedness of the Company and the Company Guaranty is made subject to
such provisions of this Indenture.
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The Company further agrees that, as between it, on the one
hand, and the Holders and the Trustee, on the other hand, (x) the maturity of
the Guarantied Obligations may be accelerated as provided in Article 6 for
purposes of the Company Guaranty, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the Guarantied
Obligations, and (y) in the event of any declaration of acceleration of such
Guarantied Obligations as provided in Article 6, such Guarantied Obligations
(whether or not due and payable) shall forthwith become due and payable by the
Company for the purposes of this Section.
The Company shall be subrogated to all rights of each Holder
of Securities against the Issuers in respect of any amounts paid to such Holder
by the Company pursuant to the provisions of the Company Guaranty; provided,
however, that the Company shall not be entitled to enforce, or to receive any
payments arising out of or based upon, such right of subrogation until the
Guarantied Obligations and all obligations to which the Guarantied Obligations
are subordinated as provided in Article 12 shall have been paid in full.
The Company also agrees to pay any and all costs and expenses
(including reasonable attorneys' fees and reasonable expenses) incurred by the
Trustee or any Holder in enforcing any rights under this Section.
The Company Guaranty set forth in this Section 11.01 shall not
be valid or become obligatory for any purpose with respect to a Security until
the certificate of authentication on such Security shall have been signed by an
authorized signatory of the Trustee pursuant to Section 2.02.
To evidence the Company Guaranty, the Company hereby agrees to
execute the notation of the Company Guaranty in substantially the form included
in the forms of the Securities attached hereto as Exhibit 1 to the Appendix and
Exhibit A to be endorsed on each Security authenticated and delivered by the
Trustee. The Company hereby agrees that the Company Guaranty shall remain in
full force and effect notwithstanding any failure to endorse on each Security a
notation of such Company Guaranty. Each such notation of the Company Guaranty
shall be signed on behalf
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of the Company by two Officers of the Company, prior to the authentication of
the Security on which it is endorsed, and the delivery of such Security by the
Trustee, after the due authentication thereof by the Trustee pursuant to Section
2.02, shall constitute due delivery of the Company Guaranty on behalf of the
Company. Such signatures upon the notation of the Company Guaranty may be manual
or facsimile signatures of such Officers of the Company and may be imprinted or
otherwise reproduced below the notation of the Company Guaranty, and in case any
such Officer of the Company who shall have signed the notation of the Company
Guaranty shall cease to be such Officer of the Company before the Security on
which such notation is endorsed shall have been authenticated and delivered by
the Trustee or disposed of by the Issuers, such Security nevertheless may be
authenticated and delivered or disposed of as though the person who signed the
notation of the Company Guaranty had not ceased to be such Officer of the
Company.
The Company further agrees that the Company Guaranty herein
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of principal of or interest on any Guaranteed
Obligation is rescinded or must otherwise be restored by any Holder or the
Trustee upon the bankruptcy or reorganization of the Issuers or otherwise.
SECTION 11.02. Subsidiary Guaranties. Each Subsidiary
Guarantor hereby unconditionally and irrevocably guarantees, jointly and
severally, to each Holder and to the Trustee and its successors and assigns, the
Guarantied Obligations, subject to Section 11.03. Each Subsidiary Guarantor
further agrees that the Guarantied Obligations may be extended or renewed, in
whole or in part, without notice or further assent from such Subsidiary
Guarantor and that such Subsidiary Guarantor will remain bound under this
Article 11 notwithstanding any extension or renewal of any Guarantied
Obligation.
Each Subsidiary Guarantor waives presentation to, demand of,
payment from and protest to the Issuers of any of the Guarantied Obligations and
also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives
notice of any default under the Securities or the Guarantied Obligations. The
obligations of each Subsidiary
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Guarantor hereunder shall not be affected by (a) the failure of any Holder or
the Trustee to assert any claim or demand or to enforce any right or remedy
against the Issuers or any other Person under this Indenture, the Securities or
any other agreement or otherwise; (b) any extension or renewal of any thereof;
(c) any rescission, waiver, amendment or modification of any of the terms or
provisions of this Indenture, the Securities or any other agreement; (d) the
release of any security held by any Holder or the Trustee for the Guarantied
Obligations or any of them; (e) the failure of any Holder or the Trustee to
exercise any right or remedy against any other guarantor of the Guarantied
Obligations; or (f) except as set forth in Section 11.07, any change in the
ownership of such Subsidiary Guarantor.
Each Subsidiary Guarantor further agrees that its Subsidiary
Guaranty herein constitutes a guarantee of payment, performance and compliance
when due (and not a guarantee of collection) and waives any right to require
that any resort be had by any Holder or the Trustee to any security held for
payment of the Guarantied Obligations.
Each Subsidiary Guaranty is, to the extent and in the manner
set forth in Article 12, subordinated and subject in right of payment to the
prior payment in full of the principal of and premium, if any, and interest on
all Senior Indebtedness of the Subsidiary Guarantor giving such Subsidiary
Guaranty and each Subsidiary Guaranty is made subject to such provisions of this
Indenture.
Except as expressly set forth in Sections 8.01(b), 11.03 and
11.07, the obligations of each Subsidiary Guarantor hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to any defense of setoff, counterclaim, recoupment or
termination whatsoever or by reason of the invalidity, illegality or
unenforceability of the Guarantied Obligations or otherwise. Without limiting
the generality of the foregoing, the obligations of each Subsidiary Guarantor
herein shall not be discharged or impaired or otherwise affected by the failure
of any Holder or the Trustee to assert any claim or demand or to enforce any
remedy under this Indenture, the Securities or any other agreement, by
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any waiver or modification of any thereof, by any default, failure or delay,
willful or otherwise, in the performance of the obligations, or by any other act
or thing or omission or delay to do any other act or thing which may or might in
any manner or to any extent vary the risk of such Subsidiary Guarantor or would
otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law
or equity.
Each Subsidiary Guarantor further agrees that its Subsidiary
Guaranty herein shall continue to be effective or be reinstated, as the case may
be, if at any time payment, or any part thereof, of principal of or interest on
any Guarantied Obligation is rescinded or must otherwise be restored by any
Holder or the Trustee upon the bankruptcy or reorganization of the Issuers or
otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Holder or the Trustee has at law or in equity against any
Subsidiary Guarantor by virtue hereof, upon the failure of the Issuers to pay
the principal of or interest on any Guarantied Obligation (including any
Additional Amounts payable in respect thereof) when and as the same shall become
due, whether at maturity, by acceleration, by redemption or otherwise, or to
perform or comply with any other Guarantied Obligation, each Subsidiary
Guarantor hereby promises to and shall, upon receipt of written demand by the
Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the
Trustee an amount equal to the sum of (1) the unpaid amount of such Guarantied
Obligations (including any Additional Amounts payable in respect thereof), (2)
accrued and unpaid interest on such Guarantied Obligations (but only to the
extent not prohibited by law) and (3) all other monetary Guarantied Obligations
of the Issuers to the Holders and the Trustee.
Each Subsidiary Guarantor agrees that it shall not be entitled
to any right of subrogation in respect of any Guarantied Obligations until
payment in full of all Guarantied Obligations and all obligations to which the
Guarantied Obligations are subordinated as provided in Article 12. Each
Subsidiary Guarantor further agrees that, as between it, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
Guarantied Obligations may be accelerated as provided in
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Article 6 for the purposes of such Subsidiary Guarantor's Subsidiary Guaranty
herein, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the Guarantied Obligations, and (y) in the event
of any declaration of acceleration of such Guarantied Obligations as provided in
Article 6, such Guarantied Obligations (whether or not due and payable) shall
forthwith become due and payable by such Subsidiary Guarantor for the purposes
of this Section.
Each Subsidiary Guarantor also agrees to pay any and all costs
and expenses (including reasonable attorneys' fees) incurred by the Trustee or
any Holder in enforcing any rights under this Section.
SECTION 11.03. Limitation on Liability of Subsidiary
Guarantors. Any term or provision of this Indenture to the contrary
notwithstanding, the maximum aggregate amount of the Guarantied Obligations by
any Subsidiary Guarantor shall not exceed the maximum amount that can be hereby
guaranteed without rendering this Indenture, as it relates to such Subsidiary
Guarantor, voidable under applicable law relating to fraudulent conveyance or
fraudulent transfer or similar laws affecting the rights of creditors generally.
Each Subsidiary Guarantor incorporated in Germany shall not be
liable under its respective Subsidiary Guaranties if and to the extent, at the
time of enforcement of the relevant Subsidiary Guaranty, payments under such
Subsidiary Guaranty would not be allowed pursuant to Section 30 of the German
GmbH-Gesetz (German Act on Limited Liability Companies) in order to preserve the
registered share capital (Stammkapital) of the relevant Subsidiary Guarantor or
of the partners of Deutsche Hefewerke GmbH & Co. OHG (Gesellschafter), as the
case may be.
SECTION 11.04. Successors and Assigns. This Article 11 shall
be binding upon each Securities Guarantor and its successors and assigns and
shall enure to the benefit of the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges conferred upon that party in this
Indenture and in the Securities shall automatically extend to and be
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vested in such transferee or assignee, all subject to the terms and conditions
of this Indenture.
SECTION 11.05. No Waiver. Neither a failure nor a delay on the
part of either the Trustee or the Holders in exercising any right, power or
privilege under this Article 11 shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise of any
right, power or privilege. The rights, remedies and benefits of the Trustee and
the Holders herein expressly specified are cumulative and not exclusive of any
other rights, remedies or benefits which either may have under this Article 11
at law, in equity, by statute or otherwise.
SECTION 11.06. Modification. No modification, amendment or
waiver of any provision of this Article 11, nor the consent to any departure by
any Securities Guarantor therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Trustee, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given. No notice to or demand on any Securities Guarantor in any case
shall entitle such Securities Guarantor to any other or further notice or demand
in the same, similar or other circumstances.
SECTION 11.07. Release of Subsidiary Guarantor. Upon the sale
or other disposition (including by way of consolidation or merger) of any
Subsidiary Guarantor (other than to the Company or a Restricted Subsidiary), the
sale or disposition of all or substantially all the assets of such Subsidiary
Guarantor (other than to the Company or a Restricted Subsidiary), the
designation of such Subsidiary Guarantor as an Unrestricted Subsidiary, or if
(A) such Subsidiary Guarantor is not Guaranteeing any Indebtedness Incurred
pursuant to clause (1) or (2) of Section 4.03(b) and (B) a change in or
amendment to the laws (including any regulations or rules promulgated
thereunder) of the jurisdiction of organization of such Subsidiary Guarantor has
occurred that prohibits such Subsidiary Guarantor from maintaining its
Subsidiary Guarantee, in each case pursuant to the terms of this Indenture, such
Subsidiary Guarantor shall be deemed released from all obligations under this
Article 11 without any further action required on the part of the Trustee or any
Holder. At the request of the
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Company or the relevant Subsidiary Guarantor, the Trustee shall execute and
deliver an appropriate instrument evidencing such release.
SECTION 11.08. Contribution. Each Subsidiary Guarantor that
makes a payment under its Subsidiary Guaranty shall be entitled upon payment in
full of all Guarantied Obligations to a contribution from each other Subsidiary
Guarantor in an amount equal to such other Subsidiary Guarantor's pro rata
portion of such payment based on the respective net assets of all the Subsidiary
Guarantors at the time of such payment determined in accordance with GAAP.
ARTICLE 12
Subordination of Securities Guaranties
SECTION 12.01. Agreement to Subordinate. Each Securities
Guarantor agrees, and each Securityholder by accepting a Security agrees, that
the Indebtedness evidenced by such Securities Guarantor's Securities Guaranty is
subordinated in right of payment, to the extent and in the manner provided in
this Article 12, to the prior payment in full in cash of all Senior Indebtedness
of such Securities Guarantor and that the subordination is for the benefit of
and enforceable by the holders of such Senior Indebtedness. Subject to mandatory
applicable laws, the Obligations of a Securities Guarantor shall in all respects
rank pari passu with all other Senior Subordinated Indebtedness of such
Securities Guarantor and only Senior Indebtedness of such Securities Guarantor
(including such Securities Guarantor's Guarantee of Senior Indebtedness of the
Issuers) shall rank senior to the Obligations of such Securities Guarantor in
accordance with the provisions set forth herein.
SECTION 12.02. Liquidation, Dissolution, Bankruptcy. Upon any
payment or distribution of the assets of any Securities Guarantor upon a total
or partial liquidation, or a total or partial dissolution of such Securities
Guarantor or in a bankruptcy, reorganization, insolvency, receivership or
similar proceeding for the benefit of creditors relating to such Securities
Guarantor or its property:
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(1) holders of Senior Indebtedness of such Securities
Guarantor shall be entitled to receive payment in full of such Senior
Indebtedness before Securityholders shall be entitled to receive any
payment pursuant to the Securities Guaranty of such Securities
Guarantor; and
(2) until the Senior Indebtedness of any Securities Guarantor
is paid in full in cash, any payment or distribution to which
Securityholders would be entitled but for this Article 12 shall be made
to holders of such Senior Indebtedness as their interests may appear,
except that Securityholders may receive shares of Capital Stock and any
debt securities of such Securities Guarantor that are subordinated to
such Senior Indebtedness to at least the same extent as the Securities
Guaranty of such Securities Guarantor.
SECTION 12.03. Default on Senior Indebtedness of Securities
Guarantor. No Securities Guarantor shall make any payment in connection with its
Securities Guaranty or purchase, redeem or otherwise retire or defease any
Securities or other Obligations (collectively, "pay its Securities Guaranty") if
either of the following (a "Payment Default") occurs (1) any Obligation on any
Designated Senior Indebtedness of such Securities Guarantor is not paid in full
in cash when due; or (2) any other default on Designated Senior Indebtedness of
such Securities Guarantor occurs and the maturity of such Designated Senior
Indebtedness is accelerated in accordance with its terms; unless, in either
case, the Payment Default has been cured or waived and any such acceleration has
been rescinded or such Designated Senior Indebtedness has been paid in full in
cash; provided, however, that any Securities Guarantor shall be entitled to pay
its Securities Guaranty without regard to the foregoing if such Securities
Guarantor and the Trustee receive written notice approving such payment from the
Representatives of all Designated Senior Indebtedness with respect to which the
Payment Default has occurred and is continuing. During the continuance of any
default (other than a Payment Default) with respect to any Designated Senior
Indebtedness of such Securities Guarantor pursuant to which the maturity thereof
may be accelerated immediately without further notice (except such notice as may
be required to effect such
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acceleration) or the expiration of any applicable grace periods, such Securities
Guarantor shall not pay its Securities Guaranty for a period (a "Payment
Blockage Period") commencing upon the receipt by the Trustee of (with a copy to
such Securities Guarantor) written notice (a "Blockage Notice") of such default
from the Representative of such Designated Senior Indebtedness specifying an
election to effect a Payment Blockage Period and ending 179 days thereafter. The
Payment Blockage Period shall end earlier if such Payment Blockage Period is
terminated (1) by written notice to the Trustee and such Securities Guarantor
from the Person or Persons who gave such Blockage Notice; (2) because the
default giving rise to such Blockage Notice is cured, waived or otherwise no
longer continuing; or (3) because such Designated Senior Indebtedness has been
discharged or repaid in full in cash. Notwithstanding the provisions described
in the immediately preceding two sentences (but subject to the provisions
contained in the first sentence of this Section), unless the holders of such
Designated Senior Indebtedness giving such Blockage Notice or the Representative
of such Designated Senior Indebtedness shall have accelerated the maturity of
such Designated Senior Indebtedness, any Securities Guarantor shall be entitled
to resume payments pursuant to its Securities Guaranty after termination of such
Payment Blockage Period. No Securities Guarantor shall be subject to more than
one Payment Blockage Period in any consecutive 360-day period, irrespective of
the number of defaults with respect to Designated Senior Indebtedness of such
Securities Guarantor during such period. For purposes of this Section, no
default or event of default which existed or was continuing on the date of the
commencement of any Payment Blockage Period with respect to the Designated
Senior Indebtedness of such Securities Guarantor initiating such Payment
Blockage Period shall be, or be made, the basis of the commencement of a
subsequent Payment Blockage Period by the Representative of such Designated
Senior Indebtedness, unless such default or event of default shall have been
cured or waived for a period of not less than 90 consecutive days.
SECTION 12.04. Demand for Payment. If a demand for payment is
made on a Securities Guarantor pursuant to Article 11, the Trustee shall
promptly notify the holders
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of the Designated Senior Indebtedness of such Securities Guarantor (or their
Representatives) of such demand.
SECTION 12.05. When Distribution Must Be Paid Over. If a
distribution is made to Securityholders that because of this Article 12 should
not have been made to them, the Securityholders who receive the distribution
shall hold it in trust for holders of Senior Indebtedness of the applicable
Securities Guarantor and pay it over to them or their Representatives as their
interests may appear.
SECTION 12.06. Subrogation. After all Senior Indebtedness of a
Securities Guarantor is paid in full and until the Securities are paid in full,
Securityholders shall be subrogated to the rights of holders of such Senior
Indebtedness to receive distributions applicable to Senior Indebtedness of such
Securities Guarantor. A distribution made under this Article 12 to holders of
such Senior Indebtedness which otherwise would have been made to Securityholders
is not, as between the relevant Securities Guarantor and Securityholders, a
payment by such Securities Guarantor on such Senior Indebtedness.
SECTION 12.07. Relative Rights. This Article 12 defines the
relative rights of Securityholders and holders of Senior Indebtedness of a
Securities Guarantor. Nothing in this Indenture shall:
(1) impair, as between a Securities Guarantor and
Securityholders, the obligation of such Securities Guarantor, which is
absolute and unconditional, to pay its Securities Guaranty to the
extent set forth in Article 11; or
(2) prevent the Trustee or any Securityholder from exercising
its available remedies upon a default by such Securities Guarantor
under its Securities Guaranty, subject to the rights of holders of
Senior Indebtedness of such Securities Guarantor to receive
distributions otherwise payable to Securityholders.
SECTION 12.08. Subordination May Not Be Impaired by a
Securities Guarantor. No right of any holder of Senior Indebtedness of any
Securities Guarantor to enforce the subordination of the Securities Guaranty of
such Securities Guarantor shall be impaired by any act or
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failure to act by such Securities Guarantor or by its failure to comply with
this Indenture.
SECTION 12.09. Rights of Trustee and Paying Agent.
Notwithstanding Section 12.03, the Trustee or Paying Agent shall continue to
make payments on any Securities Guaranty and shall not be charged with knowledge
of the existence of facts that would prohibit the making of any such payments
unless, not less than two Business Days prior to the date of such payment, a
Responsible Officer of the Trustee receives written notice satisfactory to it
that such payments are prohibited by this Article 12. The Issuers, the relevant
Securities Guarantor, the Registrar or co-registrar, the Paying Agent, a
Representative or a holder of Senior Indebtedness of such Securities Guarantor
shall be entitled to give the notice; provided, however, that, if an issue of
Senior Indebtedness of any Securities Guarantor has a Representative, only the
Representative shall be entitled to give the notice.
The Trustee in its individual or any other capacity shall be
entitled to hold Senior Indebtedness of any Securities Guarantor with the same
rights it would have if it were not the Trustee. The Registrar and co-registrar
and the Paying Agent may do the same with like rights. The Trustee shall be
entitled to all the rights set forth in this Article 12 with respect to any
Senior Indebtedness of any Securities Guarantor which may at any time be held by
it, to the same extent as any other holder of such Senior Indebtedness; and
nothing in Article 7 shall deprive the Trustee of any of its rights as such
holder. Nothing in this Article 12 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.07.
SECTION 12.10. Distribution or Notice to Representative.
Whenever any Person is to make a distribution or give a notice to holders of
Senior Indebtedness of any Securities Guarantor, such Person shall be entitled
to make such distribution or give such notice to their Representative (if any).
SECTION 12.11. Article 12 Not to Prevent Events of Default or
Limit Right to Demand Payment. The failure to make a payment pursuant to a
Securities Guaranty by reason of any provision in this Article 12 shall not be
construed as preventing the occurrence of a Default.
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Nothing in this Article 12 shall have any effect on the right of the
Securityholders or the Trustee to make a demand for payment on any Securities
Guarantor pursuant to its Securities Guaranty.
SECTION 12.12. Trustee Entitled to Rely. Upon any payment or
distribution pursuant to this Article 12, the Trustee and the Securityholders
shall be entitled to rely (1) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 12.02
are pending, (2) upon a certificate of the liquidating trustee or agent or other
Person making such payment or distribution to the Trustee or to the
Securityholders or (3) upon the Representatives for the holders of Senior
Indebtedness of any Securities Guarantor for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
such Senior Indebtedness and other indebtedness of such Securities Guarantor,
the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article 12. In the
event that the Trustee determines, in good faith, that evidence is required with
respect to the right of any Person as a holder of Senior Indebtedness of any
Securities Guarantor to participate in any payment or distribution pursuant to
this Article 12, the Trustee shall be entitled to request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness of such Securities Guarantor held by such Person, the extent
to which such Person is entitled to participate in such payment or distribution
and other facts pertinent to the rights of such Person under this Article 12,
and, if such evidence is not furnished, the Trustee shall be entitled to defer
any payment to such Person pending judicial determination as to the right of
such Person to receive such payment. The provisions of Sections 7.01 and 7.02
shall be applicable to all actions or omissions of actions by the Trustee
pursuant to this Article 12.
SECTION 12.13. Trustee to Effectuate Subordination. Each
Securityholder by accepting a Security authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Securityholders and the holders of
Senior Indebtedness of
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any Securities Guarantor as provided in this Article 12 and appoints the Trustee
as attorney-in-fact for any and all such purposes.
SECTION 12.14. Trustee Not Fiduciary for Holders of Senior
Indebtedness of Securities Guarantor. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness of any Securities Guarantor
and shall not be liable to any such holders if it shall mistakenly pay over or
distribute to Securityholders or the Issuers or any other Person, money or
assets to which any holders of such Senior Indebtedness shall be entitled by
virtue of this Article 12 or otherwise.
SECTION 12.15. Reliance by Holders of Senior Indebtedness of
Securities Guarantors on Subordination Provisions. Each Securityholder by
accepting a Security acknowledges and agrees that the foregoing subordination
provisions are, and are intended to be, an inducement and a consideration to
each holder of any Senior Indebtedness of any Securities Guarantor, whether such
Senior Indebtedness was created or acquired before or after the issuance of the
Securities, to acquire and continue to hold, or to continue to hold, such Senior
Indebtedness and such holder of Senior Indebtedness shall be deemed conclusively
to have relied on such subordination provisions in acquiring and continuing to
hold, or in continuing to hold, such Senior Indebtedness.
ARTICLE 13
Miscellaneous
SECTION 13.01. Trust Indenture Act Controls. If any provision
of this Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 13.02. Notices. Any notice or communication shall be
in writing and delivered in person or mailed by first-class mail addressed as
follows:
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if to the Issuers or any Securities Guarantor:
Burns, Philp & Company Limited
Level 23
56 Pitt Street
Sydney NSW 2000
Australia
Attention: Helen Golding
With a copy to:
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, NY 10019-6092
Attention: Morton A. Pierce
if to the Trustee:
Wells Fargo Bank,
National Association
707 Wilshire Blvd.
17th Floor
Los Angeles, CA 90017
Attention: Corporate Trust Department
The Issuers, any Securities Guarantor or the Trustee by notice
to the other may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication mailed to a Securityholder shall
be mailed to the Securityholder at the Securityholder's address as it appears on
the registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 13.03. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The
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Issuers, any Securities Guarantor, the Trustee, the Registrar and anyone else
shall have the protection of TIA Section 312(c).
SECTION 13.04. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Issuers or the Company to the
Trustee to take or refrain from taking any action under this Indenture, the
Issuers or the Company, as applicable, shall furnish to the Trustee:
(1) an Officers' Certificate of the Company or the Issuers, as
applicable, in form and substance reasonably satisfactory to the
Trustee stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such
counsel, all such conditions precedent to be performed by the Issuers,
the Company or the applicable Subsidiary Guarantor, if any, provided
for in the Indenture relating to the proposed action have been complied
with.
SECTION 13.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(1) a statement that the individual making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
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(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 13.06. When Securities Disregarded. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by the Issuers,
the Company or by any Person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Issuers or the Company shall
be disregarded and deemed not to be outstanding, except that, for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities which a Responsible Person of the
Trustee knows are so owned shall be so disregarded. Also, subject to the
foregoing, only Securities outstanding at the time shall be considered in any
such determination.
SECTION 13.07. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar and the Paying Agent may make reasonable rules
for their functions.
SECTION 13.08. Legal Holidays. A "Legal Holiday" is a
Saturday, a Sunday or a day on which banking institutions are not required to be
open in the State of New York or in Sydney, Australia. If a payment date is a
Legal Holiday, payment shall be made on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue for the intervening period. If a
regular record date is a Legal Holiday, the record date shall not be affected.
SECTION 13.09. Governing Law. This Indenture and the
Securities shall be governed by, and construed in accordance with, the laws of
the State of New York but without giving effect to applicable principles of
conflicts of law to the extent that the application of the laws of another
jurisdiction would be required thereby.
SECTION 13.10. Consent to Jurisdiction; Appointment of Agent
for Service of Process; Judgment Currency. (a) each of the Issuers, the Company
and the Subsidiary Guarantors, by the execution and delivery of
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this Indenture, irrevocably agrees that service of process may be made upon CT
Corporation System ("CT Corporation"), with offices at 1633 Broadway, 23rd
Floor, New York, New York 10019 (or its successors as agent for service of
process), in the County, City and State of New York, United States of America,
in any suit or proceeding against it instituted by the Trustee, based on or
arising under this Indenture or the Securities and the transactions contemplated
hereby in any federal or state court in the State of New York, County of New
York, and each of the Issuers, the Company, the Subsidiary Guarantors and the
Trustee hereby irrevocably consents and submits to the jurisdiction of, and
Burns Philp Food, S.A. hereby submits to the exclusive jurisdiction of, any such
court and to the courts of its own corporate domicile in respect of actions
brought against it as a defendant generally and unconditionally in respect of
any such suit or proceeding.
(b) each of the Issuers, the Company and the Subsidiary
Guarantors further, by the execution and delivery of this Indenture, irrevocably
designates, appoints and empowers CT Corporation, with offices at 1633 Broadway,
23rd Floor, New York, New York 10019, as its designee, appointee and authorized
agent to receive for and on its behalf service (i) of any and all legal process,
summons, notices and documents that may be served in any action, suit or
proceeding brought against it with respect to its obligations, liabilities or
any other matter arising out of or in connection with this Indenture or the
Securities and the transactions contemplated hereby and (ii) that may be made on
such designee, appointee and authorized agent in accordance with legal
procedures prescribed for such courts, and it being understood that the
designation and appointment of CT Corporation as such authorized agent shall
become effective immediately without any further action on its part. Each of the
Issuers, the Company and the Subsidiary Guarantors represents to the Trustee
that it has notified CT Corporation of such designation and appointment and that
CT Corporation has accepted the same, and that CT Corporation has been paid its
full fee for such designation, appointment and related services through the date
that is one year from the date of this Indenture. Each of the Issuers, the
Company and the Subsidiary Guarantors further agrees that, to the extent
permitted by law, service of process upon CT Corporation (or its successors as
agent for service of process) and
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written notice of said service to the Issuers, the Company or a Subsidiary
Guarantor, as applicable, pursuant to Section 13.02 of this Indenture, shall be
deemed in every respect effective service of process upon it in any such suit or
proceeding. If for any reason such designee, appointee and agent hereunder shall
cease to be available to act as such, each of the Issuers, the Company and the
Subsidiary Guarantors agrees to designate a new designee, appointee and agent in
The City of New York, New York on the terms and for the purposes of this Section
reasonably satisfactory to the Trustee. Each of the Issuers, the Company and the
Subsidiary Guarantors further hereby irrevocably consents and agrees to the
service of any and all legal process, summons, notices and documents in any such
action, suit or proceeding against the it by serving a copy thereof upon the
relevant agent for service of process referred to in this Section (whether or
not the appointment of such agent shall for any reason prove to be ineffective
or such agent shall accept or acknowledge such service) and by mailing copies
thereof by registered or certified air mail, postage prepaid, to the it at its
address specified in or designated pursuant to this Indenture. Each of the
Issuers, the Company and the Subsidiary Guarantors agrees that the failure of
any such designee, appointee and agent to give any notice of such service to it
shall not impair or affect in any way the validity of such service or any
judgment rendered in any action or proceeding based thereon. Nothing herein
shall in any way be deemed to limit the ability of the Trustee to serve any such
legal process, summons, notices and documents in any other manner permitted by
applicable law. Each of the Issuers, the Company and the Subsidiary Guarantors
hereby irrevocably and unconditionally waives, to the fullest extent permitted
by law, any objection that it may now or hereafter have to the laying of venue
of any of the aforesaid actions, suits or proceedings arising out of or in
connection with this Indenture brought in federal or state court in the State of
New York, County of New York, and hereby further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such action,
suit or proceeding brought in any such court has been brought in an inconvenient
forum.
(c) If for the purposes of obtaining judgment in any court it
is necessary to convert a sum due hereunder into any currency other than United
States dollars, the
141
parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be the rate at which in accordance with
normal banking procedures the Trustee could purchase United States dollars with
the other currency in New York City on the business day preceding that on which
final judgment is given. The obligation of the any party hereto in respect of
any sum due from it to the Trustee shall, notwithstanding any judgment in a
currency other than United States dollars, not be discharged until the first
business day, following receipt by the Trustee of any sum adjudged to be so due
in the other currency, on which (and only to the extent that) the Trustee may in
accordance with normal banking procedures purchase United States dollars with
the other currency; if the United States dollars so purchased are less than the
sum originally due to the Trustee hereunder, such party agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify the Trustee
against the loss. If the United States dollars so purchased are greater than the
sum originally due to the Trustee hereunder, the Trustee agrees to pay to such
party an amount equal to the excess of the dollars so purchased over the sum
originally due to the Trustee hereunder.
(d) To the extent that any of the Issuers, the Company or the
Subsidiary Guarantors may acquire any immunity from jurisdiction of any court or
from any legal process (whether through service of notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise) with respect
to itself or its property, it hereby irrevocably waives such immunity, to the
fullest extent permitted by law.
(e) The provisions of this Section shall survive any
termination of this Indenture, in whole or in part.
SECTION 13.11. No Recourse Against Others. No past, present or
future director, officer, employee or stockholder, as such, of the Issuers or
any Securities Guarantor shall have any liability for any obligations of the
Issuers under the Securities or this Indenture or of such Securities Guarantor
under its Securities Guaranty or this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Security, each Securityholder shall waive and release all such liability. Such
waiver and release shall
142
be part of the consideration for the issue of the Securities.
SECTION 13.12. Successors. All agreements of the Issuers and
each Securities Guarantor in this Indenture and the Securities shall bind its
successors. All agreements of the Trustee in this Indenture shall bind its
successors.
SECTION 13.13. Multiple Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement. One signed copy is enough to
prove this Indenture.
SECTION 13.14. Table of Contents; Headings. The table of
contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
143
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
BURNS PHILP CAPITAL PTY
LIMITED (ACN 100 768 803), as
the Australian Issuer,
by being signed,
sealed and delivered
by /s/ Helen Golding
___________________________________
Name: Helen Golding
Title: Attorney
BURNS PHILP CAPITAL (U.S.) INC.,
as the US Issuer,
by /s/ Helen Golding
___________________________________
Name: Helen Golding
Title: Company Secretary & Group
Legal Counsel
BURNS, PHILP & COMPANY
LIMITED (ACN 000 000 359), as
the Company,
by being signed, sealed and
delivered by
/s/ Helen Golding
___________________________________
Name: Helen Golding
Title: Attorney
BPCUS1 INC., as
Subsidiary Guarantor,
by /s/ Helen Golding
___________________________________
Name: Helen Golding
Title: Secretary & Group Legal
Counsel
144
BURNS PHILP INC., as
Subsidiary Guarantor,
by /s/ Allen Hugli
___________________________________
Name: Allen Hugli
Title: Chief Financial Officer and
Treasurer
BURNS PHILP FOOD INC., as
a Subsidiary Guarantor,
by /s/ Frank H. Schoonyoung
___________________________________
Name: Frank H. Schoonyoung
Title: President
TONE BROTHERS, INC., as a
Subsidiary Guarantor,
by /s/ Robert MacPherson
___________________________________
Name: Robert MacPherson
Title: Vice President/CFO
SUDAMERICANA DE LEVADURAS S.A.
DE INVERSIONES
BURNS PHILP AUSTRALIA PTY
LIMITED (ACN 101 664 082)
BURNS PHILP CAMELLIA PTY
LIMITED (ACN 003 925 040)
BURNS PHILP FOOD HOLDINGS PTY
LIMITED (ACN 000 003 010)
BURNS PHILP FOOD OVERSEAS
HOLDINGS LIMITED
(ACN 000 010 711)
BURNS PHILP FOOD OVERSEAS
INVESTMENTS PTY LIMITED
(ACN 101 664 840)
BURNS PHILP FOOD PROPERTIES
PTY LIMITED (ACN 008 443 856)
BURNS PHILP FOOD SERVICES PTY
LIMITED (ACN 003 994 250)
BURNS PHILP SOUTH AMERICA PTY
LIMITED (ACN 072 208 309)
145
BURNS PHILP MIDDLE EAST PTY
LIMITED (ACN 077 288 021)
BURNS PHILP OVERSEAS HOLDINGS
LIMITED (ACN 004 474 551)
BURNS PHILP PAKISTAN PTY
LIMITED (ACN 068 581 653)
BURNS PHILP TECHNOLOGY &
DEVELOPMENT PTY LIMITED
(ACN 003 994 241)
BURNS PHILP TECHNOLOGY PTY
LIMITED (ACN 061 602 506)
BURNS PHILP TREASURY
(AUSTRALIA) LIMITED
(ACN 003 731 986)
INDONESIAN YEAST COMPANY PTY
LIMITED (ACN 061 753 026)
MAURI FERMENTATION ARGENTINA
PTY LIMITED (ACN 003 994 312)
MAURI FERMENTATION BRAZIL PTY
LIMITED (ACN 060 142 038)
MAURI FERMENTATION CHILE PTY
LIMITED (ACN 061 325 157)
MAURI FERMENTATION CHINA PTY
LIMITED (ACN 051 675 775)
MAURI FERMENTATION INDIA PTY
LIMITED (ACN 063 797 759)
MAURI FERMENTATION INDONESIA
PTY LIMITED (ACN 001 515 617)
MAURI FERMENTATION MALAYSIA
PTY LIMITED (ACN 051 611 628)
MAURI FERMENTATION PHILIPPINES
PTY LIMITED (ACN 068 581 493)
MAURI FERMENTATION VIETNAM PTY
LIMITED (ACN 066 107 426)
MAURI YEAST AUSTRALIA PTY
LIMITED (ACN 003 853 656)
BPC1 PTY LIMITED
(ACN 101 665 918)
BURNS PHILP FOOD LIMITED
BURNS PHILP ECUADOR S.A.
BURNS PHILP DEUTSCHLAND EXPORT
NAHRUNGSMITTEL-VERTRIEBSGESELLSCHAFT
MBH
BURNS PHILP DEUTSCHLAND GMBH
BURNS PHILP DEUTSCHLAND
GRUNDBESITZ GMBH
146
DEUTSCHE HEFEWERKE GMBH & CO.
OHG
DEUTSCHE HEFEWERKE VERWALTUNGS
GMBH
BURNS PHILP DEUTSHLAND
EXPORT NAHRUNGSMITTEL-
VERTRIEBSGESELLSCHAFT MBH
BURNS PHILP GUATEMALA, S.A.
BURNS PHILP TREASURY (EUROPE)
B.V.
BURNS PHILP NETHERLANDS
EUROPEAN HOLDINGS B.V.
BURNS PHILP (NEW ZEALAND)
LIMITED
NEW ZEALAND FOOD INDUSTRIES
LIMITED
BURNS PHILP PERU S.A.C.
BURNS PHILP FOOD, S.A.
BURNS PHILP (U.K.) PLC
FLODDEN S.A.
GREENSTED S.A.
LEVADURA URUGUAYA S.A.
BURNS PHILP FINANCE NEW
ZEALAND LIMITED
BURNS PHILP VENEZUELA, S.A.,
as Subsidiary Guarantors,
by being signed, sealed and
delivered by
/s/ Helen Golding
___________________________________
Name: Helen Golding
Title: Attorney
WELLS FARGO BANK, NATIONAL
ASSOCIATION,
as Trustee,
by /s/ Joseph O'Donnell
___________________________________
Name: Joseph O'Donnell
Title: Trust Officer
EXHIBIT 1
[FORM OF SUPPLEMENTAL INDENTURE TO BE
DELIVERED BY ADDITIONAL SUBSIDIARY GUARANTORS]
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated
as of [ ] among [ ] (the "Additional Subsidiary Guarantor"), a [ ] corporation
and a subsidiary of Burns, Philp & Company Limited (ACN 000 000 359), an
Australian corporation (or its permitted successor) (the "Company"), Burns Philp
Capital Pty Limited (ACN 100 768 803) (the "Australian Issuer"), Burns Philp
Capital (U.S.) Inc. (the "US Issuer" and, collectively with the Australian
Issuer, the "Issuers") the other Subsidiary Guarantors (the "Existing Subsidiary
Guarantors") and Wells Fargo Bank, National Association, a national banking
association, as Trustee under the Indenture (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Issuers, the Company and the Subsidiary
Guarantors have heretofore executed and delivered to the Trustee an Indenture
(the "Indenture"), dated as of February 20, 2003, providing for the issuance of
10 3/4% Senior Subordinated Notes due 2011 (the "Securities");
WHEREAS, Section 4.13 of the Indenture provides that under
certain circumstances the Company will cause the Additional Subsidiary Guarantor
to execute and deliver to the Trustee a Guaranty Agreement pursuant to which the
Additional Subsidiary Guarantor will Guarantee payment of the Securities on the
same terms and conditions as those set forth in Article 11 of the Indenture
(other than Section 11.01); and
WHEREAS, pursuant to Section 9.01(5) of the Indenture, the
Trustee, the Issuers, the Company and the Existing Subsidiary Guarantors are
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for good
and valuable consideration, the receipt of which is hereby acknowledged, the
Issuers, the Company, the Additional Subsidiary Guarantor, the Existing
Subsidiary Guarantors and the Trustee mutually covenant and agree for the equal
and ratable benefit of the Holders of the Securities as follows:
2
SECTION 1. Capitalized Terms. Capitalized terms used herein
but not defined shall have the meanings assigned to them in the Indenture.
SECTION 2. Guaranties. The Additional Subsidiary Guarantor
hereby agrees, jointly and severally with all other Subsidiary Guarantors, to
guarantee the Issuers' obligations under the Securities on the terms and subject
to the conditions set forth in Article 11 of the Indenture (other than Section
11.01) and to be bound by all other applicable provisions of the Indenture
(including Article 12).
SECTION 3. Ratification of Indenture; Supplemental Indentures
Part of Indenture. Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture shall
form a part of the Indenture for all purposes, and every holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby.
SECTION 4. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
SECTION 5. Trustee Makes No Representation. The Trustee makes
no representation as to the validity or sufficiency of this Supplemental
Indenture.
SECTION 6. Counterparts. The parties may sign any number of
copies of this Supplemental Indenture. Each signed copy shall be an original,
but all of them together represent the same agreement.
SECTION 7. Effect of Headings. The Section headings herein are
for convenience only and shall not effect the construction of this Supplemental
Indenture.
3
IN WITNESS WHEREOF, the parties have caused this Supplemental
Indenture to be duly executed as of the date first written above.
BURNS PHILP CAPITAL PTY LIMITED
(ACN 100 768 803),
by
___________________________________
Name:
Title:
BURNS PHILP CAPITAL (U.S.) INC.,
by
___________________________________
Name:
Title:
BURNS, PHILP & COMPANY LIMITED
(ACN 000 000 359),
by
___________________________________
Name:
Title:
[SUBSIDIARY GUARANTORS]
by
___________________________________
Name:
Title:
[ADDITIONAL SUBSIDIARY GUARANTOR]
by
___________________________________
Name:
Title:
4
WELLS FARGO BANK, NATIONAL
ASSOCIATION,
by
___________________________________
Name:
Title:
RULE 144A/REGULATION S
APPENDIX
PROVISIONS RELATING TO INITIAL SECURITIES,
PRIVATE EXCHANGE SECURITIES
AND EXCHANGE SECURITIES
1. Definitions
1.1 Definitions
Capitalized terms used but not otherwise defined in this Appendix shall
have the meanings assigned in the Indenture. For the purposes of this Appendix
the following terms shall have the meanings indicated below:
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Temporary Regulation S Global Security or beneficial
interest therein, the rules and procedures of the Depository, Euroclear and
Clearstream, for such a Temporary Regulation S Global Security, in each case to
the extent applicable to such transaction and as in effect from time to time.
"Clearstream" means Clearstream Banking, societe anonyme, or
any successor securities clearing agency.
"Definitive Security" means a certificated Initial Security or
Exchange Security or Private Exchange Security bearing, if required, the
restricted securities legend set forth in Section 2.3(e).
"Depository" means The Depository Trust Company, its nominees
and their respective successors.
"Distribution Compliance Period", with respect to any
Securities, means the period of 40 consecutive days beginning on and including
the later of (i) the day on which such Securities are first offered to Persons
other than distributors (as defined in Regulation S under the Securities Act) in
reliance on Regulation S and (ii) the Issue Date with respect to such
Securities.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the
Euroclear System, or any successor securities clearing agency.
"Exchange Securities" means (1) the 10 3/4% Senior
Subordinated Notes due 2011 issued pursuant to the Indenture in connection with
a Registered Exchange Offer
2
pursuant to a Registration Rights Agreement and (2) Additional Securities, if
any, issued pursuant to a registration statement filed with the SEC under the
Securities Act.
"Initial Purchasers" means (1) with respect to the Initial
Securities issued on the Issue Date, Credit Suisse First Boston LLC and (2) with
respect to each issuance of Additional Securities, the Persons purchasing such
Additional Securities under the related Purchase Agreement.
"Initial Securities" means (1) US$210 million aggregate
principal amount of 10 3/4% Senior Subordinated Notes due 2011 issued on the
Issue Date and (2) Additional Securities, if any, issued in a transaction exempt
from the registration requirements of the Securities Act.
"Private Exchange" means the offer by the Issuers, the Company
and the Subsidiary Guarantors, pursuant to a Registration Rights Agreement, to
the Initial Purchasers to issue and deliver to each Initial Purchaser, in
exchange for the Initial Securities held by the Initial Purchaser as part of its
initial distribution, a like aggregate principal amount of Private Exchange
Securities.
"Private Exchange Securities" means any 10 3/4% Senior
Subordinated Notes due 2011 issued in connection with a Private Exchange.
"Purchase Agreement" means (1) with respect to the Initial
Securities issued on the Issue Date, the Purchase Agreement dated February 12,
2003, among the Issuers, the Company, the Subsidiary Guarantors and Credit
Suisse First Boston LLC, and (2) with respect to each issuance of Additional
Securities, the purchase agreement or underwriting agreement among the Issuers,
the Company, the Subsidiary Guarantors and the Persons purchasing such
Additional Securities.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Registered Exchange Offer" means the offer by the Issuers,
the Company and the Subsidiary Guarantors, pursuant to a Registration Rights
Agreement, to certain Holders of Initial Securities, to issue and deliver to
such
3
Holders, in exchange for the Initial Securities, a like aggregate principal
amount of Exchange Securities registered under the Securities Act.
"Registration Rights Agreement" means (1) with respect to the
Initial Securities issued on the Issue Date, the Registration Rights Agreement
dated February 20, 2003, among the Issuers, the Company, the Subsidiary
Guarantors and Credit Suisse First Boston LLC, and (2) with respect to each
issuance of Additional Securities issued in a transaction exempt from the
registration requirements of the Securities Act, the registration rights
agreement, if any, among the Issuers, the Company, the Subsidiary Guarantors and
the Persons purchasing such Additional Securities under the related Purchase
Agreement.
"Rule 144A Securities" means all Initial Securities offered
and sold to QIBs in reliance on Rule 144A.
"Securities" means the Initial Securities, the Exchange
Securities and the Private Exchange Securities, treated as a single class.
"Securities Act" means the Securities Act of 1933.
"Securities Custodian" means the custodian with respect to a
Global Security (as appointed by the Depository), or any successor Person
thereto and shall initially be the Trustee.
"Shelf Registration Statement" means the registration
statement issued by the Issuers in connection with the offer and sale of Initial
Securities or Private Exchange Securities pursuant to a Registration Rights
Agreement.
"Transfer Restricted Securities" means Securities that bear or
are required to bear the legend relating to restrictions on transfer relating to
the Securities Act set forth in Section 2.3(e) hereto.
4
1.2 Other Definitions.
Defined in
Term Section:
---- --------
"Agent Members".............................................. 2.1(b)
"Global Security"............................................ 2.1(a)
"Permanent Regulation S Global Security"..................... 2.1(a)
"Regulation S"............................................... 2.1(a)
"Rule 144A".................................................. 2.1(a)
"Rule 144A Global Security".................................. 2.1(a)
"Temporary Regulation S Global Security"..................... 2.1(a)
2. The Securities.
2.1 (a) Form and Dating. The Initial Securities will be offered
and sold by the Issuers pursuant to a Purchase Agreement. The Initial Securities
will be resold initially only to (i) QIBs in reliance on Rule 144A under the
Securities Act ("Rule 144A") and (ii) Persons other than U.S. Persons (as
defined in Regulation S) in reliance on Regulation S under the Securities Act
("Regulation S"). Initial Securities may thereafter be transferred to, among
others, QIBs and purchasers in reliance on Regulation S, subject to the
restrictions on transfer set forth herein. Initial Securities initially resold
pursuant to Rule 144A shall be issued initially in the form of one or more
permanent global Securities in definitive, fully registered form (collectively,
the "Rule 144A Global Security") and Initial Securities initially resold
pursuant to Regulation S shall be issued initially in the form of one or more
temporary global securities in definitive, fully registered form (collectively,
the "Temporary Regulation S Global Security"), in each case without interest
coupons and with the global securities legend and restricted securities legend
set forth in Exhibit 1 hereto, which shall be deposited on behalf of the
purchasers of the Initial Securities represented thereby with the Securities
Custodian, and registered in the name of the Depository or a nominee of the
Depository, duly executed by the Issuers and authenticated by the Trustee as
provided in this Indenture. Beneficial ownership interests in the Temporary
Regulation S Global Security will not be exchangeable for interests in the Rule
144A Global Security, a permanent global security (the "Permanent Regulation S
Global Security"), or any other Security without a legend
5
containing restrictions on transfer of such Security prior to the expiration of
the Distribution Compliance Period and then only upon certification in form
reasonably satisfactory to the Trustee that beneficial ownership interests in
such Temporary Regulation S Global Security are owned either by non-U.S. persons
or U.S. persons who purchased such interests in a transaction that did not
require registration under the Securities Act. The Rule 144A Global Security,
the Temporary Regulation S Global Security and the Permanent Regulation S Global
Security are collectively referred to herein as "Global Securities". The
aggregate principal amount of the Global Securities may from time to time be
increased or decreased by adjustments made on the records of the Trustee and the
Depository or its nominee as hereinafter provided.
(b) Book-Entry Provisions. This Section 2.1(b) shall apply
only to a Global Security deposited with or on behalf of the Depository.
The Issuers shall execute and the Trustee shall, in accordance
with this Section 2.1(b), authenticate and deliver initially one or more Global
Securities that (a) shall be registered in the name of the Depository for such
Global Security or Global Securities or the nominee of such Depository and (b)
shall be delivered by the Trustee to such Depository or pursuant to such
Depository's instructions or held by the Trustee as custodian for the
Depository.
Members of, or participants in, the Depository ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depository or by the Trustee as the
custodian of the Depository or under such Global Security, and the Issuers, the
Trustee and any agent of the Issuers or the Trustee shall be entitled to treat
the Depository as the absolute owner of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Issuers, the Trustee or any agent of the Issuers or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depository or impair, as between the Depository and its Agent Members, the
operation of customary practices of such Depository governing the exercise of
the rights of a holder of a beneficial interest in any Global Security.
6
(c) Certificated Securities. Except as provided in this
Section 2.1 or Section 2.3 or 2.4, owners of beneficial interests in Global
Securities shall not be entitled to receive physical delivery of Definitive
Securities.
2.2 Authentication. The Trustee shall authenticate and deliver:
(1) on the Issue Date, an aggregate principal amount of US$210 million 10 3/4%
Senior Subordinated Notes due 2011, (2) any Additional Securities for an
original issue in an aggregate principal amount specified in the written order
of the Issuers pursuant to Section 2.02 of the Indenture and (3) Exchange
Securities or Private Exchange Securities for issue only in a Registered
Exchange Offer or a Private Exchange, respectively, pursuant to a Registration
Rights Agreement, for a like principal amount of Initial Securities, in each
case upon a written order of the Issuers signed by two Officers of each Issuer
or by an Officer of each Issuer and either an Assistant Treasurer or an
Assistant Secretary of each Issuer. Such order shall specify the amount of the
Securities to be authenticated and the date on which the original issue of
Securities is to be authenticated and, in the case of any issuance of Additional
Securities pursuant to Section 2.13 of the Indenture, shall certify that such
issuance is in compliance with Section 4.03 of the Indenture.
2.3 Transfer and Exchange.
(a) Transfer and Exchange of Definitive Securities. When
Definitive Securities are presented to the Registrar or a co-registrar with a
request:
(x) to register the transfer of such Definitive Securities; or
(y) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized
denominations,
the Registrar or co-registrar shall register the transfer or make the exchange
as requested if its reasonable requirements for such transaction are met;
provided, however, that the Definitive Securities surrendered for transfer or
exchange:
7
(i) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Issuers
and the Registrar or co-registrar, duly executed by the Holder thereof
or its attorney duly authorized in writing; and
(ii) if such Definitive Securities are required to bear a
restricted securities legend, they are being transferred or exchanged
pursuant to an effective registration statement under the Securities
Act, pursuant to Section 2.3(b) or pursuant to clause (A), (B) or (C)
below, and are accompanied by the following additional information and
documents, as applicable:
(A) if such Definitive Securities are being delivered
to the Registrar by a Holder for registration in the name of
such Holder, without transfer, a certification from such
Holder to that effect; or
(B) if such Definitive Securities are being
transferred to the Issuers, a certification to that effect; or
(C) if such Definitive Securities are being
transferred (x) pursuant to an exemption from registration in
accordance with Rule 144A, Regulation S or Rule 144 under the
Securities Act,; or (y) in reliance upon another exemption
from the requirements of the Securities Act: (i) a
certification to that effect (in the form set forth on the
reverse of the Security) and (ii) if the Issuers so request,
an opinion of counsel or other evidence reasonably
satisfactory to it as to the compliance with the restrictions
set forth in the legend set forth in Section 2.3(e)(i).
(b) Restrictions on Transfer of a Definitive Security for a
Beneficial Interest in a Global Security. A Definitive Security may not be
exchanged for a beneficial interest in a Rule 144A Global Security or a
Permanent Regulation S Global Security except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive
Security, duly endorsed or accompanied by appropriate instruments of transfer,
in form satisfactory to the Trustee, together with:
8
(i) certification, in the form set forth on the reverse of the
Security, that such Definitive Security is either (A) being transferred
to a QIB in accordance with Rule 144A or (B) is being transferred after
expiration of the Distribution Compliance Period by a Person who
initially purchased such Security in reliance on Regulation S to a
buyer who elects to hold its interest in such Security in the form of a
beneficial interest in the Permanent Regulation S Global Security; and
(ii) written instructions directing the Trustee to make, or to
direct the Securities Custodian to make, an adjustment on its books and
records with respect to such Rule 144A Global Security (in the case of
a transfer pursuant to clause (b)(i)(A)) or Permanent Regulation S
Global Security (in the case of a transfer pursuant to clause
(b)(i)(B)) to reflect an increase in the aggregate principal amount of
the Securities represented by the Rule 144A Global Security or
Permanent Regulation S Global Security, as applicable, such
instructions to contain information regarding the Depository account to
be credited with such increase,
then the Trustee shall cancel such Definitive Security and cause, or direct the
Securities Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depository and the Securities Custodian, the
aggregate principal amount of Securities represented by the Rule 144A Global
Security or Permanent Regulation S Global Security, as applicable, to be
increased by the aggregate principal amount of the Definitive Security to be
exchanged and shall credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Rule 144A Global
Security or Permanent Regulation S Global Security, as applicable, equal to the
principal amount of the Definitive Security so canceled. If no Rule 144A Global
Securities or Permanent Regulation S Global Securities, as applicable, are then
outstanding, the Issuers shall issue and the Trustee shall authenticate, upon
written order of the Issuers in the form of an Officers' Certificate of Issuers,
a new Rule 144A Global Security or Permanent Regulation S Global Security, as
applicable, in the appropriate principal amount.
9
(c) Transfer and Exchange of Global Securities. (i) The
transfer and exchange of Global Securities or beneficial interests therein shall
be effected through the Depository, in accordance with this Indenture (including
applicable restrictions on transfer set forth herein, if any) and the procedures
of the Depository therefor. A transferor of a beneficial interest in a Global
Security shall deliver to the Registrar a written order given in accordance with
the Depository's procedures containing information regarding the participant
account of the Depository to be credited with a beneficial interest in the
Global Security. The Registrar shall, in accordance with such instructions,
instruct the Depository to credit to the account of the Person specified in such
instructions a beneficial interest in the Global Security and to debit the
account of the Person making the transfer the beneficial interest in the Global
Security being transferred.
(ii) If the proposed transfer is a transfer of a beneficial
interest in one Global Security to a beneficial interest in another Global
Security, the Registrar shall reflect on its books and records the date and an
increase in the principal amount of the Global Security to which such interest
is being transferred in an amount equal to the principal amount of the interest
to be so transferred, and the Registrar shall reflect on its books and records
the date and a corresponding decrease in the principal amount of the Global
Security from which such interest is being transferred.
(iii) Notwithstanding any other provisions of this Appendix
(other than the provisions set forth in Section 2.4), a Global Security may not
be transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(iv) In the event that a Global Security is exchanged for
Definitive Securities pursuant to Section 2.4 of this Appendix, prior to the
consummation of a Registered Exchange Offer or the effectiveness of a Shelf
Registration Statement with respect to such Securities, such Securities may be
exchanged only in accordance with such procedures as are substantially
consistent with the provisions of this
10
Section 2.3 (including the certification requirements set forth on the reverse
of the Initial Securities intended to ensure that such transfers comply with
Rule 144A or Regulation S, as the case may be) and such other procedures as may
from time to time be adopted by the Company.
(d) Restrictions on Transfer of Temporary Regulation S Global
Securities. During the Distribution Compliance Period, beneficial ownership
interests in Temporary Regulation S Global Securities may only be sold, pledged
or transferred through Euroclear or Clearstream in accordance with the
Applicable Procedures and only (i) to the Issuers, (ii) so long as such Security
is eligible for resale pursuant to Rule 144A, to a Person whom the selling
holder reasonably believes is a QIB that purchases for its own account or for
the account of a QIB to whom notice is given that the resale, pledge or transfer
is being made in reliance on Rule 144A, (iii) in an offshore transaction in
accordance with Regulation S, (iv) pursuant to an exemption from registration
under the Securities Act provided by Rule 144 (if applicable) under the
Securities Act or (v) pursuant to an effective registration statement under the
Securities Act, in each case in accordance with any applicable securities laws
of any state of the United States.
(e) Legend.
(i) Except as permitted by the following paragraphs (ii),
(iii) and (iv), each Security certificate evidencing the Global
Securities (and all Securities issued in exchange therefor or in
substitution thereof) shall bear a legend in substantially the
following form:
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS
SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION
5
11
OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE
COMPANY THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED, ONLY (I) TO THE ISSUERS (II) IN THE
UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (III) OUTSIDE THE UNITED STATES IN
AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (IV) PURSUANT TO EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I)
THROUGH (V) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES AND OTHER JURISDICTIONS, AND
(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED
TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE
RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
Each Definitive Security will also bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO
THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO
CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a
Global Security) pursuant to Rule 144 under the Securities Act, the
Registrar shall permit the transferee thereof to exchange such Transfer
Restricted Security for a certificated Security that does not bear the
legend set forth above and rescind any restriction on the transfer of
such Transfer Restricted Security, if the transferor thereof certifies
in writing to the Registrar that
12
such sale or transfer was made in reliance on Rule 144 (such
certification to be in the form set forth on the reverse of the
Security).
(iii) After a transfer of any Initial Securities or Private
Exchange Securities pursuant to and during the period of the
effectiveness of a Shelf Registration Statement with respect to such
Initial Securities or Private Exchange Securities, as the case may be,
all requirements pertaining to legends relating to the restrictions on
transfer relating to the Securities Act on such Initial Security or
such Private Exchange Security will cease to apply, the requirements
requiring any such Initial Security or such Private Exchange Security
issued to certain Holders be issued in global form will cease to apply,
and a certificated Initial Security or Private Exchange Security or an
Initial Security or Private Exchange Security in global form, in each
case without restrictive transfer legends, will be available to the
transferee of the Holder of such Initial Securities or Private Exchange
Securities upon exchange of such transferring Holder's certificated
Initial Security or Private Exchange Security or appropriate directions
to transfer such Holder's interest in the Global Security, as
applicable.
(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Initial Securities, all requirements pertaining to such
Initial Securities that Initial Securities issued to certain Holders be
issued in global form will still apply with respect to Holders of such
Initial Securities that do not exchange their Initial Securities, and
Exchange Securities in certificated or global form, in each case
without the restrictive securities legend relating to the restrictions
on transfer relating to the Securities Act set forth in Exhibit 1
hereto will be available to Holders that exchange such Initial
Securities in such Registered Exchange Offer.
(v) Upon the consummation of a Private Exchange with respect
to the Initial Securities, all requirements pertaining to such Initial
Securities that Initial Securities issued to certain Holders be issued
in global form will still apply with respect to
13
Holders of such Initial Securities that do not exchange their Initial
Securities, and Private Exchange Securities in global form with the
global securities legend and the Restricted Securities Legend set forth
in Exhibit 1 hereto will be available to Holders that exchange such
Initial Securities in such Private Exchange.
(f) Cancelation or Adjustment of Global Security. At such time
as all beneficial interests in a Global Security have either been exchanged for
Definitive Securities, redeemed, purchased or canceled, such Global Security
shall be returned to the Depository for cancelation or retained and canceled by
the Trustee. At any time prior to such cancelation, if any beneficial interest
in a Global Security is exchanged for certificated Securities, redeemed,
purchased or canceled, the principal amount of Securities represented by such
Global Security shall be reduced and an adjustment shall be made on the books
and records of the Trustee (if it is then the Securities Custodian for such
Global Security) with respect to such Global Security, by the Trustee or the
Securities Custodian, to reflect such reduction.
(g) Obligations with Respect to Transfers and Exchanges of
Securities.
(i) To permit registrations of transfers and exchanges, the
Issuers shall execute and the Trustee shall authenticate Definitive
Securities and Global Securities at the Registrar's or co-registrar's
request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Issuers may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith (other than any
such transfer taxes, assessments or similar governmental charge payable
upon exchange or transfer pursuant to Sections 3.06, 4.06, 4.09, 4.10,
4.11 and 9.05 of the Indenture).
(iii) The Registrar or co-registrar shall not be required to
register the transfer of or exchange of (a) any Definitive Security
selected for redemption in
14
whole or in part pursuant to Article 3 of this Indenture, except the
unredeemed portion of any Definitive Security being redeemed in part,
or (b) any Security for a period beginning 15 Business Days before the
mailing of a notice of an offer to repurchase or redeem Securities or
15 Business Days before an interest payment date.
(iv) Prior to the due presentation for registration of
transfer of any Security, the Issuers, the Trustee, the Paying Agent,
the Registrar or any co-registrar may deem and treat the person in
whose name a Security is registered as the absolute owner of such
Security for the purpose of receiving payment of principal of and
interest on such Security and for all other purposes whatsoever,
whether or not such Security is overdue, and none of the Issuers, the
Trustee, the Paying Agent, the Registrar or any co-registrar shall be
affected by notice to the contrary.
(v) All Securities issued upon any transfer or exchange
pursuant to the terms of this Indenture shall evidence the same debt
and shall be entitled to the same benefits under this Indenture as the
Securities surrendered upon such transfer or exchange.
(h) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to
any beneficial owner of a Global Security, a member of, or a
participant in the Depository or other Person with respect to the
accuracy of the records of the Depository or its nominee or of any
participant or member thereof, with respect to any ownership interest
in the Securities or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the Depository) of
any notice (including any notice of redemption) or the payment of any
amount, under or with respect to such Securities. All notices and
communications to be given to the Holders and all payments to be made
to Holders under the Securities shall be given or made only to or upon
the order of the registered Holders (which shall be the Depository or
its nominee in the case of a Global Security). The
15
rights of beneficial owners in any Global Security shall be exercised
only through the Depository subject to the applicable rules and
procedures of the Depository. The Trustee may rely and shall be fully
protected in relying upon information furnished by the Depository with
respect to its members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to
any transfer of any interest in any Security (including any transfers
between or among Depository participants, members or beneficial owners
in any Global Security) other than to require delivery of such
certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by, the terms
of this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
2.4 Certificated Securities.
(a) A Global Security deposited with the Depository or with
the Trustee as Securities Custodian for the Depository pursuant to Section 2.1
shall be transferred to the beneficial owners thereof in the form of Definitive
Securities in an aggregate principal amount equal to the principal amount of
such Global Security, in exchange for such Global Security, only if such
transfer complies with Section 2.3 hereof and (i) the Depository notifies the
Issuers that it is unwilling or unable to continue as Depository for such Global
Security and the Depository fails to appoint a successor depositary or if at any
time such Depository ceases to be a "clearing agency" registered under the
Exchange Act and, in either case, a successor Depository is not appointed by the
Issuers within 90 days of such notice, or (ii) an Event of Default has occurred
and is continuing or (iii) the Issuers, in their sole discretion, notify the
Trustee in writing that it elects to cause the issuance of Definitive Securities
under this Indenture.
16
(b) Any Global Security that is transferable to the beneficial
owners thereof pursuant to this Section shall be surrendered by the Depository
to the Trustee located at its principal corporate trust office in the Borough of
Manhattan, The City of New York, to be so transferred, in whole or from time to
time in part, without charge, and the Trustee shall authenticate and deliver,
upon such transfer of each portion of such Global Security, an equal aggregate
principal amount of Definitive Securities of authorized denominations. Any
portion of a Global Security transferred pursuant to this Section shall be
executed, authenticated and delivered only in denominations of US$1,000
principal amount and any integral multiple thereof and registered in such names
as the Depository shall direct. Any Definitive Security delivered in exchange
for an interest in the Transfer Restricted Security shall, except as otherwise
provided by Section 2.3(e) hereof, bear the restricted securities legend set
forth in Exhibit 1 hereto.
(c) Subject to the provisions of Section 2.4(b) hereof, the
registered Holder of a Global Security shall be entitled to grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
(d) In the event of the occurrence of one of the events
specified in Section 2.4(a) hereof, the Issuers shall promptly make available to
the Trustee a reasonable supply of Definitive Securities in definitive, fully
registered form without interest coupons.
EXHIBIT 1
TO
RULE 144A/REGULATION S APPENDIX
[FORM OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE ISSUERS OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[[FOR REGULATION S GLOBAL SECURITY ONLY] UNTIL 40 DAYS AFTER
THE COMMENCEMENT OF THE OFFERING, AN OFFER OR SALE OF SECURITIES WITHIN THE
UNITED STATES BY A DEALER (AS DEFINED IN THE U.S. SECURITIES ACT) MAY VIOLATE
THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT IF SUCH OFFER OR SALE
IS MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A THEREUNDER.]
[Restricted Securities Legend]
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY
NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.
2
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE
COMPANY THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (I) TO THE ISSUERS (II) WITHIN THE UNITED STATES TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (III) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (IV) PURSUANT
TO EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (V) IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND OTHER
JURISDICTIONS, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED
TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE.
[Temporary Regulation S Global Security Legend]
EXCEPT AS SET FORTH BELOW, BENEFICIAL OWNERSHIP INTERESTS IN
THIS TEMPORARY REGULATION S GLOBAL SECURITY WILL NOT BE EXCHANGEABLE FOR
INTERESTS IN THE PERMANENT REGULATION S GLOBAL SECURITY OR ANY OTHER SECURITY
REPRESENTING AN INTEREST IN THE SECURITIES REPRESENTED HEREBY WHICH DO NOT
CONTAIN A LEGEND CONTAINING RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF
THE "40-DAY DISTRIBUTION COMPLIANCE PERIOD" (WITHIN THE MEANING OF RULE
903(b)(2) OF REGULATION S UNDER THE SECURITIES ACT) AND THEN ONLY UPON
CERTIFICATION IN FORM REASONABLY SATISFACTORY TO THE TRUSTEE THAT SUCH
BENEFICIAL INTERESTS ARE OWNED EITHER BY NON-U.S. PERSONS OR U.S. PERSONS WHO
PURCHASED SUCH INTERESTS IN A TRANSACTION THAT DID NOT REQUIRE REGISTRATION
UNDER THE SECURITIES ACT. DURING SUCH 40-DAY DISTRIBUTION COMPLIANCE PERIOD,
BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL SECURITY
MAY ONLY BE SOLD, PLEDGED OR TRANSFERRED THROUGH EUROCLEAR BANK S.A./N.A., AS
OPERATOR OF THE EUROCLEAR SYSTEM OR CLEARSTREAM BANKING, SOCIETE ANONYME AND
ONLY (I) TO THE ISSUERS, (II) WITHIN THE UNITED STATES TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (III) OUTSIDE THE UNITED STATES IN A TRANSACTION IN
3
ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, OR (IV) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I)
THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES AND OTHER JURISDICTIONS. HOLDERS OF INTERESTS IN THIS
TEMPORARY REGULATION S GLOBAL SECURITY WILL NOTIFY ANY PURCHASER OF THIS
SECURITY OF THE RESALE RESTRICTIONS REFERRED TO ABOVE, IF THEN APPLICABLE.
BENEFICIAL INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL
SECURITY MAY BE EXCHANGED FOR INTERESTS IN A RULE 144A GLOBAL SECURITY ONLY IF
(1) SUCH EXCHANGE OCCURS IN CONNECTION WITH A TRANSFER OF THE SECURITIES IN
COMPLIANCE WITH RULE 144A, AND (2) THE TRANSFEROR OF THE REGULATION S GLOBAL
SECURITY FIRST DELIVERS TO THE TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM
ATTACHED TO THIS CERTIFICATE) TO THE EFFECT THAT THE REGULATION S GLOBAL
SECURITY IS BEING TRANSFERRED (A) TO A PERSON WHO THE TRANSFEROR REASONABLY
BELIEVES TO BE A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
(B) TO A PERSON WHO IS PURCHASING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, AND (C) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF
THE UNITED STATES AND OTHER JURISDICTIONS.
BENEFICIAL INTERESTS IN A RULE 144A GLOBAL SECURITY MAY BE
TRANSFERRED TO A PERSON WHO TAKES DELIVERY IN THE FORM OF AN INTEREST IN THE
REGULATION S GLOBAL SECURITY, WHETHER BEFORE OR AFTER THE EXPIRATION OF THE
40-DAY DISTRIBUTION COMPLIANCE PERIOD, ONLY IF THE TRANSFEROR FIRST DELIVERS TO
THE TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO THIS CERTIFICATE) TO
THE EFFECT THAT IF SUCH TRANSFER IS BEING MADE IN ACCORDANCE WITH RULE 903 OR
904 OF REGULATION S OR RULE 144 (IF AVAILABLE) AND THAT, IF SUCH TRANSFER OCCURS
PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD, THE
INTEREST TRANSFERRED WILL BE HELD IMMEDIATELY THEREAFTER THROUGH EUROCLEAR BANK
S.A./N.A. OR CLEARSTREAM BANKING SOCIETE ANONYME.
[Definitive Securities Legend]
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO
THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH
THE FOREGOING RESTRICTIONS.
4
CUSIP No. _________
ISIN __________
Common Code No. __________
No. _______________ $ ________
10 3/4% Senior Subordinated Notes due 2011
Burns Philp Capital Pty Limited (ACN 100 768 803), an
Australian corporation, and Burns Philp Capital (U.S.) Inc., a Delaware
corporation, promise to pay to [Cede &Co.], or registered assigns, the principal
sum of _______ Dollars on February 15, 2011.
Interest Payment Dates: February 15 and August 15.
Record Dates: February 1 and August 1.
Additional provisions of this Security are set forth on the
other side of this Security.
Dated:
BURNS PHILP CAPITAL PTY LIMITED
(ACN 100 768 803)
by
___________________________
Name:
Title:
___________________________
Name:
Title:
BURNS PHILP CAPITAL (U.S.) INC.
by
___________________________
Name:
Title:
___________________________
Name:
Title:
5
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
by
_______________________________
Authorized Signatory
6
NOTATION OF COMPANY GUARANTY
For value received, the Company (which term includes any
successor under the Indenture) has unconditionally and irrevocably guaranteed to
each Holder and to the Trustee and its successors and assigns (a) the full and
punctual payment of principal and interest on the Securities (including any
Additional Amounts payable in respect thereof) when due, whether at maturity, by
acceleration, by redemption or otherwise, and all other monetary obligations of
the Issuers under the Indenture and the Securities, (b) the full and punctual
performance within applicable grace periods of all other obligations of the
Issuers under the Indenture and the Securities and (c) the full and punctual
payment of the principal, interest, and premium, if any, payable in respect of
the Subsidiary Guaranty of Burns Philp Treasury (Europe) B.V. and Burns Philp
Treasury (Australia) Ltd. The Company Guaranty is, to the extent and in the
manner set forth in Article 12 of the Indenture, subordinated and subject in
right of payment to the prior payment in full of the principal of and premium,
if any, and interest on all Senior Indebtedness of the Company and the Company
Guaranty is made subject to such provisions of the Indenture. The obligations of
the Company to the Holders of Securities and to the Trustee pursuant to the
Company Guaranty and the Indenture are expressly set forth in the Indenture and
reference is hereby made to the Indenture for the precise terms of the Company
Guaranty and the Company's other obligations under the Indenture.
Dated:
BURNS, PHILP & COMPANY LIMITED
(ACN 000 000 359)
by
____________________________
Name:
Title:
____________________________
Name:
Title:
7
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
10 3/4% Senior Subordinated Note due 2011
1. Interest
Burns Philp Capital Pty Limited (ACN 100 768 803), an
Australian corporation (such corporation, and its successors and assigns under
the Indenture hereinafter referred to, being herein called the "Australian
Issuer"), and Burns Philp Capital (U.S.) Inc., a Delaware corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "US Issuer" and, collectively with the
Australian Issuer, the "Issuers"), promise to pay interest on the principal
amount of this Security at the rate per annum shown above; provided, however,
that:
(a) in the event the aggregate amount of Goodman Fielder
Acquisition Indebtedness Incurred by the Company and its Restricted Subsidiaries
exceeds the sum of (x) A$1,400.0 million and (y) US$535.0 million, then
additional interest will accrue on this Security at a rate of 0.50% per annum;
(b) in the event the Company does not receive Net Cash
Proceeds in an amount equal to or greater than A$140.0 million from the exercise
of Company Options subsequent to February 1, 2003 and on or prior to August 31,
2003, then additional interest will accrue on this Security at a rate of 0.50%
per annum; provided, however, that no such additional interest shall accrue on
the Securities pursuant to this clause (b) if at no time on August 14, 2003 the
fair market value of one ordinary share of the Company exceeds the per share
exercise price for each Company Option; and
(c) if a Registration Default (as defined in the Registration
Rights Agreement) occurs, additional interest will accrue on this Security at a
rate of 0.25% per annum (increasing by an additional 0.25% per annum after each
consecutive 90-day period that occurs after the date on which such Registration
Default occurs up to a maximum additional interest rate of 1.00%) from and
including the date on which any such Registration Default shall occur to
8
but excluding the date on which all Registration Defaults have been cured.
Any additional interest accruing pursuant to clauses (a), (b)
or (c) of the preceeding paragraph shall be cumulative, and the accrual of
interest under one clause shall not be limited by accrual of interest under any
other clause of the preceeding paragraph. For purposes of clause (b) of the
preceding paragraph, the "fair market value" of an ordinary share of the Company
at any time shall be the price listed or quoted to purchase one ordinary share
of the Company on the Australian Stock Exchange (or, if the ordinary shares of
the Company are not so listed or quoted, the "fair market value" shall be
determined in good faith by the Board of Directors of the Company).
The Issuers will pay interest semiannually on February 15 and
August 15 of each year, commencing August 15, 2003. Interest on the Securities
will accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from February 20, 2003. Interest on overdue principal
will be paid by the Issuers at 1% per annum in excess of the rate shown above
and the Issuers will pay interest on overdue installments of interest at such
higher rate to the extent lawful. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
2. Method of Payment
The Issuers will pay interest on the Securities (except
defaulted interest) to the Persons who are registered holders of Securities at
the close of business on the February 1 or August 1 next preceding the interest
payment date even if Securities are canceled after the record date and on or
before the interest payment date. Holders must surrender Securities to a Paying
Agent to collect principal payments. The Issuers will pay principal and interest
in money of the United States that at the time of payment is legal tender for
payment of public and private debts. Payments in respect of the Securities
represented by a Global Security (including principal, premium, if any, and
interest) will be made by wire transfer of immediately available funds to the
accounts specified by The Depository Trust Company. The Issuers
9
will make all payments in respect of a certificated Security (including
principal, premium, if any, and interest) by mailing a check to the registered
address of each Holder thereof; provided, however, that payments on a
certificated Security will be made by wire transfer to a U.S. dollar account
maintained by the payee with a bank in the United States if such Holder elects
payment by wire transfer by giving written notice to the Trustee or the Paying
Agent to such effect designating such account no later than 30 days immediately
preceding the relevant due date for payment (or such other date as the Trustee
may accept in its discretion).
3. Paying Agent and Registrar
Initially, Wells Fargo Bank, National Association, a national
banking association (the "Trustee"), will act as Paying Agent and Registrar. The
Issuers may appoint and change any Paying Agent, Registrar or co-registrar
without notice. The Issuers, the Company or any Wholly Owned Subsidiary may act
as Paying Agent, Registrar or co-registrar.
4. Indenture
The Issuers issued the Securities under an Indenture dated as
of February 20, 2003 ("Indenture"), among the Issuers, the Company, the
Subsidiary Guarantors and the Trustee. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on
the date of the Indenture (the "Act"). Terms defined in the Indenture and not
defined herein have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Securityholders are referred to
the Indenture and the Act for a statement of those terms.
The Securities are general unsecured obligations of the
Issuers. The Issuers shall be entitled, subject to its and the Company's
compliance with Section 4.03 of the Indenture, to issue Additional Securities
pursuant to Section 2.13 of the Indenture. The Initial Securities issued on the
Issue Date, any Additional Securities and all Exchange Securities or Private
Exchange Securities issued
10
in exchange therefor will be treated as a single class for all purposes under
the Indenture. The Indenture contains covenants that limit the ability of the
Company and its subsidiaries to incur additional indebtedness; pay dividends or
distributions on, or redeem or repurchase capital stock; make investments; issue
or sell capital stock of subsidiaries; engage in transactions with affiliates;
transfer or sell assets; guarantee indebtedness; restrict dividends or other
payments of subsidiaries; consolidate, merge or transfer all or substantially
all of its assets and the assets of its subsidiaries. These covenants are
subject to important exceptions and qualifications.
5. Optional Redemption
Except as set forth below or under paragraph 6 below, the
Issuers shall not be entitled to redeem the Securities prior to February 15,
2007.
On and after February 15, 2007, the Issuers shall be entitled
at their option to redeem all or a portion of the Securities upon not less than
30 nor more than 60 days' notice, at the redemption prices (expressed in
percentages of principal amount on the redemption date), plus accrued interest
to the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date), if redeemed during the 12-month period commencing on February 15 of the
years set forth below:
Redemption
Period Price
------ -----
2007 105.375%
2008 102.688
2009 and thereafter 100.000%
Prior to February 15, 2006 the Issuers may at their option on
one or more occasions redeem Securities (which includes Additional Securities,
if any) in an aggregate principal amount not to exceed 35% of the aggregate
principal amount of the Securities (which includes Additional Securities, if
any) originally issued at a redemption price (expressed as a percentage of
principal amount) of 110.750%, plus accrued and unpaid
11
interest to the redemption date, with the net cash proceeds from one or more
Qualified Equity Issuances; provided, however, that
(1) at least 65% of such aggregate principal amount of
Securities, other than Securities (which includes Additional
Securities, if any) held directly or indirectly by the Company or its
Affiliates, remains outstanding immediately after the occurrence of
each such redemption; and
(2) each such redemption occurs within 90 days after the date
of the related Qualified Equity Issuance. For purposes of this clause
(2), the date of a Qualified Equity Issuance pursuant to the exercise
of Company Options shall be August 23, 2003.
6. Redemption for Changes in Withholding Taxes
The Issuers, the Company or the Subsidiary Guarantors, as the
case may be, shall be entitled to redeem the Securities, at their option, at any
time as a whole but not in part, upon not less than 30 nor more than 60 days'
notice, at 100% of the principal amount (or accreted value, if applicable)
thereof, plus accrued and unpaid interest, if any, to the date of redemption
(subject to the right of holders of record on the relevant record date to
receive interest due on the relevant interest payment date), in the event the
Issuers or, if actually called upon to make a payment under a Guaranty, the
Company or any Subsidiary Guarantor, as the case may be, have become or would
become obligated to pay, on the next date on which any amount would be payable
with respect to the Securities, any Additional Amounts (and, in the case of any
payment required under a Guaranty, no other Subsidiary Guarantor is able to make
the payment without being obligated to pay Additional Amounts) as a result of:
(1) a change in or an amendment to the laws or treaties
(including any regulations or rulings promulgated thereunder) of any
Relevant Taxing Jurisdiction; or
(2) any change in or amendment to any official position
regarding the application or interpretation of such laws, treaties,
regulations or rulings
12
(including a holding, order or decree or a court of competent
jurisdiction or any other authority or agency having jurisdiction with
respect to taxes),
which change or amendment is announced or becomes effective on or after February
12, 2003 and the Company, the Issuers and the Subsidiary Guarantors cannot avoid
such obligation by taking reasonable measures available to them (which
reasonable measures shall not include changing the Issuers', the Company's or
any Subsidiary Guarantor's obligations with respect to Securities). The
foregoing provisions will apply mutatis mutandis to the laws and official
positions of any jurisdiction in which any successor permitted under Section
5.01 of the Indenture is organized, but only with respect to events arising
after the date of succession.
Before publishing or mailing notice of redemption of the
Securities as described above, the Issuers, the Company or the Subsidiary
Guarantors, as the case may be, shall deliver to the Trustee an Officers'
Certificate of the Issuers, the Company or the Subsidiary Guarantors, as the
case may be, to the effect that the Issuers, the Company or the Subsidiary
Guarantors, as the case may be, cannot avoid its obligation to pay Additional
Amounts by taking reasonable measures available to it. The Issuers, the Company
or the Subsidiary Guarantors, as the case may be, shall also deliver an opinion
of independent legal counsel of recognized standing stating that the Issuers,
the Company or the Subsidiary Guarantors, as the case may be, would be obligated
to pay Additional Amounts as a result of a change or amendment referred to in
clause (1) or (2) above.
7. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not
more than 60 days before the redemption date to each Holder of Securities to be
redeemed at its registered address. Securities in denominations larger than
US$1,000 principal amount may be redeemed in part but only in whole multiples of
US$1,000. If money sufficient to pay the redemption price of and accrued
interest on all Securities (or portions thereof) to be redeemed on the
redemption date is deposited with the Paying Agent on or before the redemption
date and certain other conditions are
13
satisfied, on and after such date interest ceases to accrue on such Securities
(or such portions thereof) called for redemption.
8. Put Provisions
Upon the occurrence of a Non-Consummation Event, any Holder of
Securities will have the right to cause the Issuers to repurchase all or any
part of the Securities of such Holder at a repurchase price equal to the
Accreted Value Premium with respect to the Securities to be repurchased plus
accrued interest to the date of repurchase (subject to the right of holders of
record on the relevant record date to receive interest due on the related
interest payment date) as provided in, and subject to the terms of, the
Indenture.
Upon a Change of Control, any Holder of Securities will have
the right to cause the Issuers to repurchase all or any part of the Securities
of such Holder at a repurchase price equal to 101% of the principal amount of
the Securities to be repurchased plus accrued interest to the date of repurchase
(subject to the right of holders of record on the relevant record date to
receive interest due on the related interest payment date) as provided in, and
subject to the terms of, the Indenture.
Upon the occurrence of an Indebtedness Repurchase Event, any
Holder of Securities will have the right to cause the Issuers to repurchase all
or any part of the Securities of such Holder at a repurchase price equal to
111.75% of the Accreted Value of the Securities to be repurchased plus accrued
interest to the date of repurchase (subject to the right of holders of record on
the relevant record date to receive interest due on the related interest payment
date) as provided in, and subject to the terms of, the Indenture.
9. Subordination
The Securities are subordinated to Senior Indebtedness of the
Issuers, as defined in the Indenture. To the extent provided in the Indenture,
Senior Indebtedness of the Issuers must be paid before the Securities may be
paid. The Issuers agree, and each
14
Securityholder by accepting a Security agrees, to the subordination provisions
contained in the Indenture and authorizes the Trustee to give it effect and
appoints the Trustee as attorney-in-fact for such purpose.
10. Guaranties
The payment by the Issuers of the principal of, and premium
and interest on, the Securities is fully and unconditionally guaranteed on a
joint and several senior subordinated basis by each of the Securities Guarantors
on the terms set forth in the Indenture.
11. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of US$1,000 principal amount and whole multiples of US$1,000. A
Holder may transfer or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by law
or permitted by the Indenture. The Registrar need not register the transfer of
or exchange any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
or any Securities for a period of 15 days before a selection of Securities to be
redeemed or 15 days before an interest payment date.
12. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of it for all purposes.
13. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Issuers at their request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Issuers and not to the Trustee for payment.
15
14. Discharge and Defeasance
Subject to certain conditions, the Issuers and the Company at
any time shall be entitled to terminate some or all of their obligations under
the Securities and the Indenture if the Issuers deposit with the Trustee money
or U.S. Government Obligations for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.
15. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture and the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount outstanding of the Securities
and (ii) any default or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in principal amount outstanding of
the Securities. Subject to certain exceptions set forth in the Indenture,
without the consent of any Securityholder, the Issuers, the Company, the
Subsidiary Guarantors and the Trustee shall be entitled to amend the Indenture
or the Securities to cure any ambiguity, omission, defect or inconsistency or
any technical default arising from the Goodman Fielder Acquisition, or to
provide for the assumption by a successor corporation of the obligations of the
Company, the Issuers, or any Subsidiary Guarantor, or to provide for
uncertificated Securities in addition to or in place of certificated Securities,
or to add guarantees with respect to the Securities, including Subsidiary
Guaranties, or to secure the Securities, or to add additional covenants or
surrender rights and powers conferred on the Issuers, the Company or the
Subsidiary Guarantors, or to comply with any requirement of the SEC in
connection with qualifying the Indenture under the Act, or to make certain
changes in the subordination provisions, or to make any change that does not
adversely affect the rights of any Securityholder.
16. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for
30 days in payment of interest on the Securities; (ii) default in payment of
principal on the
16
Securities at maturity, upon redemption pursuant to paragraph 5 or 6 of the
Securities, upon acceleration or otherwise, or failure by the Issuers to redeem
or purchase Securities when required; (iii) failure by the Company to comply
with other agreements in the Indenture or the Securities, in certain cases
subject to notice and lapse of time; (iv) acceleration or failure to pay within
any grace period after final maturity of other Indebtedness of the Company, the
Issuers or any Significant Subsidiary if the amount accelerated or so unpaid
exceeds US$10.0 million; (v) certain events of bankruptcy or insolvency with
respect to the Issuers, the Company and the Significant Subsidiaries; (vi)
certain judgments or decrees for the payment of money in excess of US$10.0
million and (vii) certain defaults with respect to Securities Guaranties. If an
Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the Securities may declare all the Securities
to be due and payable immediately. Certain events of bankruptcy or insolvency
are Events of Default which will result in the Securities being due and payable
immediately upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives indemnity or security
satisfactory to it. Subject to certain limitations, Holders of a majority in
principal amount of the Securities may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Securityholders notice of any
continuing Default (except a Default in payment of principal or interest) if it
determines that withholding notice is in the interest of the Holders.
17. Trustee Dealings with the Issuers
Subject to certain limitations imposed by the Act, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Issuers or their Affiliates and may otherwise deal
with the Issuers or their Affiliates with the same rights it would have if it
were not Trustee.
17
18. No Recourse Against Others
A director, officer, employee or stockholder, as such, of an
Issuer, the Company or the Trustee shall not have any liability for any
obligations of the Issuers or the Company under the Securities or the Indenture
or for any claim based on, in respect of or by reason of such obligations or
their creation. By accepting a Security, each Securityholder waives and releases
all such liability. The waiver and release are part of the consideration for the
issue of the Securities.
19. Authentication
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
20. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
21. CUSIP, ISIN and Common Code Numbers
The Issuers have caused CUSIP, ISIN and Common Code numbers to
be printed on the Securities and has directed the Trustee to use CUSIP, ISIN and
Common Code numbers in notices of redemption as a convenience to
Securityholders. No representation is made as to the accuracy of such numbers
either as printed on the Securities or as contained in any notice of redemption
and reliance may be placed only on the other identification numbers placed
thereon.
22. Holders' Compliance with Registration Rights Agreement.
Each Holder of a Security, by acceptance hereof, acknowledges
and agrees to the provisions of the
18
Registration Rights Agreement, including the obligations of the Holders with
respect to a registration and the indemnification of the Company to the extent
provided therein.
23. Governing Law.
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
THE ISSUERS WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN
REQUEST AND WITHOUT CHARGE TO THE SECURITY HOLDER A COPY OF THE INDENTURE WHICH
HAS IN IT THE TEXT OF THIS SECURITY IN LARGER TYPE. REQUESTS MAY BE MADE TO:
BURNS, PHILP & COMPANY LIMITED
LEVEL 23
56 PITT STREET
SYDNEY NSW 2000
AUSTRALIA
ATTENTION: SECRETARY
19
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security on the books
of the Issuers. The agent may substitute another to act for him.
________________________________________________________________________________
Date: ________________ Your Signature: ____________________
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act after the later of the date of original issuance
of such Securities and the last date, if any, on which such Securities were
owned by the Issuers or any Affiliate of an Issuer, the undersigned confirms
that such Securities are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) [ ] to the Issuers; or
(2) [ ] pursuant to an effective registration statement under
the United States Securities Act of 1933; or
(3) [ ] inside the United States to a "qualified
institutional buyer" (as defined in Rule 144A under
the United States Securities Act of 1933) that
purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given
that such transfer is being made in reliance
20
on Rule 144A, in each case pursuant to and in
compliance with Rule 144A under the United States
Securities Act of 1933; or
(4) [ ] outside the United States in an offshore transaction
within the meaning of Regulation S under the United
States Securities Act in compliance with Rule 904
under the United States Securities Act of 1933; or
(5) [ ] pursuant to the exemption from registration provided
by Rule 144 under the United States Securities Act of
1933.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Securities evidenced by this certificate in the name of any
person other than the registered holder thereof; provided, however,
that if box (4) or (5) is checked, the Trustee shall be entitled to
require, prior to registering any such transfer of the Securities, such
legal opinions, certifications and other information as the Company has
reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the United States Securities Act of 1933,
such as the exemption provided by Rule 144 under such Act.
_________________________
Signature
Signature Guarantee:
____________________________ _________________________
Signature must be guaranteed Signature
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the United
States Securities Exchange Act of 1934, as amended.
21
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the United
States Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated: ________________ _____________________________
NOTICE: To be executed by
an executive officer
22
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security
have been made:
Principal amount of Signature of
Amount of decrease Amount of increase this Global authorized officer
in Principal in Principal amount Security following of Trustee or
Date of amount of this of this Global such decrease or Securities
Exchange Global Security Security increase) Custodian
23
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.06, 4.09, 4.10 or 4.11 of the Indenture, check the
box:
[ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.06, 4.09, 4.10 or 4.11 of the
Indenture, state the amount in principal amount: US$-
Date: _______________ Your Signature:___________________
(Sign exactly as your name
appears on the other side of
this Security.)
Signature Guarantee: ______________________________________
(Signature must be guaranteed)
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar, which requirements
include membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the United States Securities Exchange Act of 1934, as
amended.
EXHIBIT A
to
RULE 144A REGULATION S APPENDIX
FORM OF FACE OF EXCHANGE SECURITY
OR PRIVATE EXCHANGE SECURITY */**/
- ------------------
*/ If the Security is to be issued in global form add the Global Securities
Legend from Exhibit 1 to Appendix A and the attachment from such Exhibit 1
captioned "[TO BE ATTACHED TO GLOBAL SECURITIES] - SCHEDULE OF INCREASES OR
DECREASES IN GLOBAL SECURITY".
**/ If the Security is a Private Exchange Security issued in a Private Exchange
to an Initial Purchaser holding an unsold portion of its initial allotment, add
the Restricted Securities Legend from Exhibit 1 to Appendix A and replace the
Assignment Form included in this Exhibit A with the Assignment Form included in
such Exhibit 1.
2
CUSIP No. _________
ISIN __________
Common Code No. __________
No. _______________________ $ _________
10 3/4% Senior Subordinated Notes due 2011
Burns Philp Capital Pty Limited (ACN 100 768 803), an
Australian corporation, and Burns Philp Capital (U.S.) Inc., a Delaware
corporation, promise to pay to [Cede & Co.], or registered assigns, the
principal sum of __________________ Dollars on February 15, 2011.
Interest Payment Dates: February 15 and August 15.
Record Dates: February 1 and August 1.
Additional provisions of this Security are set forth on the
other side of this Security.
Dated:
BURNS PHILP CAPITAL PTY LIMITED
(ACN 100 768 803)
by
____________________________
Name:
Title:
____________________________
Name:
Title:
BURNS PHILP CAPITAL (U.S.) INC.
by
____________________________
Name:
Title:
____________________________
Name:
Title:
3
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
by
______________________________
Authorized Signatory
4
NOTATION OF COMPANY GUARANTY
For value received, the Company (which term includes any
successor under the Indenture) has unconditionally and irrevocably guaranteed to
each Holder and to the Trustee and its successors and assigns (a) the full and
punctual payment of principal and interest on the Securities (including any
Additional Amounts payable in respect thereof) when due, whether at maturity, by
acceleration, by redemption or otherwise, and all other monetary obligations of
the Issuers under the Indenture and the Securities, (b) the full and punctual
performance within applicable grace periods of all other obligations of the
Issuers under the Indenture and the Securities and (c) the full and punctual
payment of the principal, interest, and premium, if any, payable in respect of
the Subsidiary Guaranty of Burns Philp Treasury (Europe) B.V. and Burns Philp
Treasury (Australia) Ltd. The Company Guaranty is, to the extent and in the
manner set forth in Article 12 of the Indenture, subordinated and subject in
right of payment to the prior payment in full of the principal of and premium,
if any, and interest on all Senior Indebtedness of the Company and the Company
Guaranty is made subject to such provisions of the Indenture. The obligations of
the Company to the Holders of Securities and to the Trustee pursuant to the
Company Guaranty and the Indenture are expressly set forth in the Indenture and
reference is hereby made to the Indenture for the precise terms of the Company
Guaranty and the Company's other obligations under the Indenture.
Dated:
BURNS, PHILP & COMPANY LIMITED
(ACN 000 000 359)
by
___________________________
Name:
Title:
___________________________
Name:
Title:
5
FORM OF REVERSE SIDE OF EXCHANGE SECURITY
OR PRIVATE EXCHANGE SECURITY
10 3/4% Senior Subordinated Note due 2011
1. Interest
Burns Philp Capital Pty Limited (ACN 100 769 803), an
Australian corporation (such corporation, and its successors and assigns under
the Indenture hereinafter referred to, being herein called the "Australian
Issuer"), and Burns Philp Capital (U.S.) Inc., a Delaware corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being called the "US Issuer" and, collectively with the Australian
Issuer, the "Issuers"), promise to pay interest on the principal amount of this
Security at the rate per annum shown above; provided, however, that:
(a) in the event the aggregate amount of Goodman Fielder
Acquisition Indebtedness Incurred by the Company and its Restricted Subsidiaries
exceeds the sum of (x) A$1,400.0 million and (y) US$535.0 million, then
additional interest will accrue on this Security at a rate of 0.50% per annum;
and
(b) in the event the Company does not receive Net Cash
Proceeds in an amount equal to or greater than A$140.0 million from the exercise
of Company Options subsequent to February 1, 2003 and on or prior to August 31,
2003, then additional interest will accrue on this Security at a rate of 0.50%
per annum; provided, however, that no such additional interest shall accrue on
the Securities pursuant to this clause (b) if at no time on August 14, 2003 the
fair market value of one ordinary share of the Company exceeds the per share
exercise price for each Company Option; [AND]
[(C) IF A REGISTRATION DEFAULT (AS DEFINED IN THE REGISTRATION
RIGHTS AGREEMENT) OCCURS, ADDITIONAL INTEREST WILL ACCRUE ON THIS SECURITY AT A
RATE OF 0.25% PER ANNUM (INCREASING BY AN ADDITIONAL 0.25% PER ANNUM AFTER EACH
CONSECUTIVE 90-DAY PERIOD THAT OCCURS AFTER THE DATE ON WHICH SUCH REGISTRATION
DEFAULT OCCURS UP TO A MAXIMUM ADDITIONAL INTEREST RATE OF 1.00%) FROM AND
INCLUDING THE DATE ON WHICH ANY SUCH REGISTRATION DEFAULT SHALL OCCUR TO BUT
EXCLUDING THE DATE ON WHICH ALL REGISTRATION DEFAULTS HAVE BEEN CURED.]
6
Any additional interest accruing pursuant to clauses (a), (b)
or (c) of the preceeding paragraph shall be cumulative, and the accrual of
interest under one clause shall not be limited by accrual of interest under any
other clause of the preceeding paragraph. For purposes of clause (b) of the
preceding paragraph, the "fair market value" of an ordinary share of the Company
at any time shall be the price listed or quoted to purchase one ordinary share
of the Company on the Australian Stock Exchange (or, if the ordinary shares of
the Company are not so listed or quoted, the "fair market value" shall be
determined in good faith by the Board of Directors of the Company).
The Issuers will pay interest semiannually on February 15 and
August 15 of each year, commencing August 15, 2003. Interest on the Securities
will accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from February 20, 2003. Interest on overdue principal
will be paid by the Issuers at 1% per annum in excess of the rate shown above
and the Issuers will pay interest on overdue installments of interest at such
higher rate to the extent lawful. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
2. Method of Payment
The Issuers will pay interest on the Securities (except
defaulted interest) to the Persons who are registered holders of Securities at
the close of business on the February 1 or August 1 next preceding the interest
payment date even if Securities are canceled after the record date and on or
before the interest payment date. Holders must surrender Securities to a Paying
Agent to collect principal payments. The Issuers will pay principal and interest
in money of the United States that at the time of payment is legal tender for
payment of public and private debts. Payments in respect of the Securities
represented by a Global Security (including principal, premium, if any, and
interest) will be made by wire transfer of immediately available funds to the
accounts specified by The Depository Trust Company. The Issuers will make all
payments in respect of a certificated Security (including principal, premium, if
any, and interest) by mailing a check to the registered address of each Holder
thereof; provided, however, that payments on a certificated Security will be
made by wire transfer to a U.S. dollar account maintained by the payee with a
bank in the
7
United States if such Holder elects payment by wire transfer by giving written
notice to the Trustee or the Paying Agent to such effect designating such
account no later than 30 days immediately preceding the relevant due date for
payment (or such other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, Wells Fargo Bank, National Association, a national
banking association (the "Trustee"), will act as Paying Agent and Registrar. The
Issuers may appoint and change any Paying Agent, Registrar or co-registrar
without notice. The Issuers, the Company or any Wholly Owned Subsidiary may act
as Paying Agent, Registrar or co-registrar.
4. Indenture
The Issuers issued the Securities under an Indenture dated as
of February 20, 2003 ("Indenture"), among the Issuers, the Company, the
Subsidiary Guarantors and the Trustee. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on
the date of the Indenture (the "Act"). Terms defined in the Indenture and not
defined herein have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Securityholders are referred to
the Indenture and the Act for a statement of those terms.
The Securities are general unsecured obligations of the
Issuers. The Issuers shall be entitled, subject to its and the Company's
compliance with Section 4.03 of the Indenture, to issue Additional Securities
pursuant to Section 2.13 of the Indenture. The Initial Securities issued on the
Issue Date, any Additional Securities and all Exchange Securities or Private
Exchange Securities issued in exchange therefor will be treated as a single
class for all purposes under the Indenture. The Indenture contains covenants
that limit the ability of the Company and its subsidiaries to incur additional
indebtedness; pay dividends or distributions on, or redeem or repurchase capital
stock; make investments; issue or sell capital stock of subsidiaries; engage in
transactions with affiliates; transfer or sell assets; guarantee indebtedness;
restrict dividends or other payments of subsidiaries; consolidate, merge or
transfer all or
8
substantially all of its assets and the assets of its subsidiaries. These
covenants are subject to important exceptions and qualifications.
5. Optional Redemption
Except as set forth below or under paragraph 6 below, the
Issuers shall not be entitled to redeem the Securities prior to February 15,
2007.
On and after February 15, 2007, the Issuers shall be entitled
at their option to redeem all or a portion of the Securities upon not less than
30 nor more than 60 days' notice, at the redemption prices (expressed in
percentages of principal amount on the redemption date), plus accrued interest
to the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date), if redeemed during the 12-month period commencing on February 15 of the
years set forth below:
Redemption
Period Price
------ -----
2007 105.375%
2008 102.688
2009 and thereafter 100.000%
Prior to February 15, 2006, the Issuers may at their option on
one or more occasions redeem Securities (which includes Additional Securities,
if any) in an aggregate principal amount not to exceed 35% of the aggregate
principal amount of the Securities (which includes Additional Securities, if
any) originally issued at a redemption price (expressed as a percentage of
principal amount) of 110.750%, plus accrued and unpaid interest to the
redemption date, with the net cash proceeds from one or more Qualified Equity
Issuances; provided, however, that
(1) at least 65% of such aggregate principal amount of
Securities, other than Securities (which includes Additional
Securities, if any) held directly or indirectly by the Company or its
Affiliates, remains outstanding immediately after the occurrence of
each such redemption; and
9
(2) each such redemption occurs within 90 days after the date
of the related Qualified Equity Issuance. For purposes of this clause
(2), the date of a Qualified Equity Issuance pursuant to the exercise
of Company Options shall be August 23, 2003.
6. Redemption for Changes in Withholding Taxes
The Issuers, the Company or the Subsidiary Guarantors, as the
case may be, shall be entitled to redeem the Securities, at their option, at any
time as a whole but not in part, upon not less than 30 nor more than 60 days'
notice, at 100% of the principal amount (or accreted value, if applicable)
thereof, plus accrued and unpaid interest, if any, to the date of redemption
(subject to the right of holders of record on the relevant record date to
receive interest due on the relevant interest payment date), in the event the
Issuers or, if actually called upon to make a payment under a Guaranty, the
Company or any Subsidiary Guarantor, as the case may be, have become or would
become obligated to pay, on the next date on which any amount would be payable
with respect to the Securities, any Additional Amounts (and, in the case of any
payment required under a Guaranty, no other Subsidiary Guarantor is able to make
the payment without being obligated to pay Additional Amounts) as a result of:
(1) a change in or an amendment to the laws or treaties (including any
regulations or rulings promulgated thereunder) of any Relevant Taxing
Jurisdiction; or
(2) any change in or amendment to any official position regarding the
application or interpretation of such laws, treaties, regulations or rulings
(including a holding, order or decree or a court of competent jurisdiction or
any other authority or agency having jurisdiction with respect to taxes),
which change or amendment is announced or becomes effective on or after February
12, 2003 and the Company, the Issuers and the Subsidiary Guarantors cannot avoid
such obligation by taking reasonable measures available to them (which
reasonable measures shall not include changing the Issuers', the Company's or
any Subsidiary Guarantor's obligations with respect to the Securities). The
foregoing provisions will apply mutatis mutandis to the laws and official
positions of any jurisdiction in which any successor permitted under Section
5.01 of the Indenture is organized, but only with respect to events arising
after the date of succession.
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Before publishing or mailing notice of redemption of the
Securities as described above, the Issuers, the Company or the Subsidiary
Guarantors, as the case may be, shall deliver to the Trustee an Officers'
Certificate of Issuers, the Company or the Subsidiary Guarantors, as the case
may be, to the effect that the Issuers, the Company or the Subsidiary
Guarantors, as the case may be, cannot avoid its obligation to pay Additional
Amounts by taking reasonable measures available to it. The Issuers, the Company
or the Subsidiary Guarantors, as the case may be, shall also deliver an opinion
of independent legal counsel of recognized standing stating that the Issuers,
the Company or the Subsidiary Guarantors, as the case may be, would be obligated
to pay Additional Amounts as a result of a change or amendment referred to in
clause (1) or (2) above.
7. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not
more than 60 days before the redemption date to each Holder of Securities to be
redeemed at its registered address. Securities in denominations larger than
US$1,000 principal amount may be redeemed in part but only in whole multiples of
US$1,000. If money sufficient to pay the redemption price of and accrued
interest on all Securities (or portions thereof) to be redeemed on the
redemption date is deposited with the Paying Agent on or before the redemption
date and certain other conditions are satisfied, on and after such date interest
ceases to accrue on such Securities (or such portions thereof) called for
redemption.
8. Put Provisions
Upon the occurrence of a Non-Consummation Event, any Holder of
Securities will have the right to cause the Issuers to repurchase all or any
part of the Securities of such Holder at a repurchase price equal to the
Accreted Value Premium with respect to the Securities to be repurchased plus
accrued interest to the date of repurchase (subject to the right of holders of
record on the relevant record date to receive interest due on the related
interest payment date) as provided in, and subject to the terms of, the
Indenture.
Upon a Change of Control, any Holder of Securities will have
the right to cause the Issuers to repurchase all or any part of the Securities
of such Holder at a repurchase
11
price equal to 101% of the principal amount of the Securities to be repurchased
plus accrued interest to the date of repurchase (subject to the right of holders
of record on the relevant record date to receive interest due on the related
interest payment date) as provided in, and subject to the terms of, the
Indenture.
Upon the occurrence of an Indebtedness Repurchase Event, any
Holder of Securities will have the right to cause the Issuers to repurchase all
or any part of the Securities of such Holder at a repurchase price equal to
111.75% of the Accreted Value of the Securities to be repurchased plus accrued
interest to the date of repurchase (subject to the right of holders of record on
the relevant record date to receive interest due on the related interest payment
date) as provided in, and subject to the terms of, the Indenture.
9. Subordination
The Securities are subordinated to Senior Indebtedness of the
Issuers, as defined in the Indenture. To the extent provided in the Indenture,
Senior Indebtedness of the Issuers must be paid before the Securities may be
paid. The Issuers agrees, and each Securityholder by accepting a Security
agrees, to the subordination provisions contained in the Indenture and
authorizes the Trustee to give it effect and appoints the Trustee as
attorney-in-fact for such purpose.
10. Guaranties
The payment by the Issuers of the principal of, and premium
and interest on, the Securities is fully and unconditionally guaranteed on a
joint and several senior subordinated basis by each of the Securities Guarantors
on the terms set forth in the Indenture.
11. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of US$1,000 principal amount and whole multiples of US$1,000. A
Holder may transfer or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by law
or permitted by the Indenture.
12
The Registrar need not register the transfer of or exchange any Securities
selected for redemption (except, in the case of a Security to be redeemed in
part, the portion of the Security not to be redeemed) or any Securities for a
period of 15 days before a selection of Securities to be redeemed or 15 days
before an interest payment date.
12. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of it for all purposes.
13. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Issuers at their request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Issuers and not to the Trustee for payment.
14. Discharge and Defeasance
Subject to certain conditions, the Issuers and the Company at
any time shall be entitled to terminate some or all of their obligations under
the Securities and the Indenture if the Issuers deposit with the Trustee money
or U.S. Government Obligations for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.
15. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture and the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount outstanding of the Securities
and (ii) any default or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in principal amount outstanding of
the Securities. Subject to certain exceptions set forth in the Indenture,
without the consent of any Securityholder, the Issuers, the Company, the
Subsidiary Guarantors and the Trustee shall be entitled to amend the Indenture
or the Securities to cure any ambiguity, omission, defect or inconsistency or
any technical default arising from the Goodman Fielder Acquisition, or to
provide for the
13
assumption by a successor corporation of the obligations of the Company, the
Issuers, or any Subsidiary Guarantor, or to provide for uncertificated
Securities in addition to or in place of certificated Securities, or to add
guarantees with respect to the Securities, including Subsidiary Guaranties, or
to secure the Securities, or to add additional covenants or surrender rights and
powers conferred on the Issuers, the Company or the Subsidiary Guarantors, or to
comply with any requirements of the SEC in connection with qualifying the
Indenture under the Act, or to make certain changes in the subordination
provisions, or to make any change that does not adversely affect the rights of
any Securityholder.
16. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for
30 days in payment of interest on the Securities; (ii) default in payment of
principal on the Securities at maturity, upon redemption pursuant to paragraph 5
or 6 of the Securities, upon acceleration or otherwise, or failure by the
Issuers to redeem or purchase Securities when required; (iii) failure by the
Company to comply with other agreements in the Indenture or the Securities, in
certain cases subject to notice and lapse of time; (iv) acceleration or failure
to pay within any grace period after final maturity of other Indebtedness of the
Company, the Issuers or any Significant Subsidiary if the amount accelerated or
so unpaid exceeds US$10.0 million; (v) certain events of bankruptcy or
insolvency with respect to the Issuers, the Company and the Significant
Subsidiaries; (vi) certain judgments or decrees for the payment of money in
excess of US$10.0 million and (vii) certain defaults with respect to Securities
Guaranties. If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the Securities may declare all
the Securities to be due and payable immediately. Certain events of bankruptcy
or insolvency are Events of Default which will result in the Securities being
due and payable immediately upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives indemnity or security
satisfactory to it. Subject to certain limitations, Holders of a majority in
principal amount of the Securities may direct the Trustee in its
14
exercise of any trust or power. The Trustee may withhold from Securityholders
notice of any continuing Default (except a Default in payment of principal or
interest) if it determines that withholding notice is in the interest of the
Holders.
17. Trustee Dealings with the Issuers
Subject to certain limitations imposed by the Act, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Issuers or their Affiliates and may otherwise deal
with the Issuers or their Affiliates with the same rights it would have if it
were not Trustee.
18. No Recourse Against Others
A director, officer, employee or stockholder, as such, of an
Issuer, the Company or the Trustee shall not have any liability for any
obligations of the Issuers or the Company under the Securities or the Indenture
or for any claim based on, in respect of or by reason of such obligations or
their creation. By accepting a Security, each Securityholder waives and releases
all such liability. The waiver and release are part of the consideration for the
issue of the Securities.
19. Authentication
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
20. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
15
21. CUSIP, ISIN and Common Code Numbers
The Issuers have caused CUSIP, ISIN and Common Code numbers to
be printed on the Securities and has directed the Trustee to use CUSIP, ISIN and
Common Code numbers in notices of redemption as a convenience to
Securityholders. No representation is made as to the accuracy of such numbers
either as printed on the Securities or as contained in any notice of redemption
and reliance may be placed only on the other identification numbers placed
thereon.
[22. Holders' Compliance with Registration Rights Agreement.
Each Holder of a Security, by acceptance hereof, acknowledges
and agrees to the provisions of the Registration Rights Agreement, including the
obligations of the Holders with respect to a registration and the
indemnification of the Company to the extent provided therein.] (1)
23. Governing Law.
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
THE ISSUERS WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN
REQUEST AND WITHOUT CHARGE TO THE SECURITY HOLDER A COPY OF THE INDENTURE WHICH
HAS IN IT THE TEXT OF THIS SECURITY IN LARGER TYPE. REQUESTS MAY BE MADE TO:
BURNS, PHILP & COMPANY LIMITED
LEVEL 23
56 PITT STREET
SYDNEY NSW 2000
AUSTRALIA
ATTENTION: SECRETARY
- ------------------
(1) Delete if this Security is not being issued in exchange for an Initial
Security.
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security on the
books of the Issuers. The agent may substitute another to act for him.
________________________________________________________________________________
Date: ________________ Your Signature: ____________________
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
17
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.06, 4.09, 4.10 or 4.11 of the Indenture, check the
box:
[ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.06, 4.09, 4.10 or 4.11 of the
Indenture, state the amount in principal amount: US$-
Date: _______________ Your Signature:___________________
(Sign exactly as your name
appears on the other side of
this Security.)
Signature Guarantee: ______________________________________
(Signature must be guaranteed)
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the United
States Securities Exchange Act of 1934, as amended.