Exhibit 10.35
GUARANTOR ACCESSION DEED
EACH COMPANY DESCRIBED IN SCHEDULE 1
FREEHILLS
MLC CENTRE MARTIN PLACE SYDNEY NEW SOUTH WALES 2000
AUSTRALIA
TELEPHONE 61 2 9225 5000 FACSIMILE 61 2 9322 4000
WWW.FREEHILLS.COM DX 361 SYDNEY
SYDNEY MELBOURNE PERTH BRISBANE HANOI HO CHI MINH CITY,
SINGAPORE
CORRESPONDENT OFFICE JAKARTA KUALA LUMPUR
LIABILITY LIMITED BY THE SOLICITORS' LIMITATION OF
LIABILITY SCHEME, APPROVED UNDER THE PROFESSIONAL
STANDARDS ACT 1994 (NSW)
REFERENCE PML:TN:36G
THIS DEED POLL
is made on 6 August 2003 by:
EACH COMPANY DESCRIBED IN SCHEDULE 1
(each a NEW GUARANTOR)
RECITALS
A. Under a guarantee and indemnity entitled "Deed of Guarantee
and Indemnity" dated 28 July 1998 from the companies described
in item 1 of schedule 1 to that guarantee and indemnity in
favour of J.P. Morgan Australia Limited (A.C.N. 002 888 011)
(formerly Chase Securities Australia Limited) (TRUSTEE) and
the Debenture Stockholders (the GUARANTEE AND INDEMNITY) a
person may become a Guarantor by execution of a deed in the
form of this deed poll.
B. Each New Guarantor wants to become a Guarantor under the
Guarantee and Indemnity.
THIS DEED POLL WITNESSES as follows:
1 INTERPRETATION
(a) Terms and expressions defined in the Guarantee and Indemnity
have the same meaning as in this deed poll.
(b) The following words have these meanings in this deed poll,
unless the contrary intention appears:
"EFFECTIVE DATE" means the first date on which all of the
conditions in clause 6 have been satisfied.
"EXISTING GUARANTOR" means each Guarantor which is a signatory
(or has otherwise become a party) to the Guarantee and
Indemnity and has not been released from that document.
2 RIGHTS AND OBLIGATIONS OF GUARANTOR
For valuable consideration including, among other things, the
payment by the Trustee to the New Guarantors of $10.00 (receipt of
which is acknowledged), each new Guarantor jointly and severally
with each Existing Guarantor irrevocably and unconditionally agrees
to be bound as a Guarantor by the terms and conditions of the
Guarantee and Indemnity with effect from the Effective Date.
3 STATUS OF GUARANTOR
Each New Guarantor irrevocably acknowledges and confirms that it
becomes a Guarantor as defined in, and for all purposes under, the
Guarantee and Indemnity
Page 1
as if named in and as a party to the Guarantee and Indemnity from
the Effective Date, and accordingly is bound by the Guarantee and
Indemnity as a Guarantor on and from that date.
4 GOVERNING LAW
This deed poll is governed by the laws of the Australian Capital
Territory.
5 BENEFIT OF DEED POLL
This deed poll is given in favour of and for the benefit of the
Trustee and Debenture Stockholders, each Existing Guarantor, and
persons claiming through the Trustee, a Debenture Stockholder or an
Existing Guarantor and their respective successors and permitted
assigns.
6 CONDITION PRECEDENT
Nothing in clauses 2 or 3 of this deed poll has any effect unless
and until:
(a) the entry into and performance by the New Guarantors of this
document has been approved in accordance with section 260B of
the Corporations Act by the shareholders of each New Guarantor
and any holding company of a New Guarantor contemplated by
section 260B(2) or (3) of the Corporations Act;
(b) the New Guarantors have lodged with the Australian Securities
and Investments Commission notice of that approval in
accordance with section 260B(6) of the Corporations Act;
(c) 15 clear days have elapsed since the giving of that notice;
and
(d) a New Guarantor (or Burns, Philp & Company Limited on its
behalf) has not, before the expiry of the period referred to
in (c), notified the Trustee that the board of directors of
the New Guarantor has determined that the New Guarantor is
insolvent or likely to become insolvent as a result of giving
effect to this document, that the giving effect to this
document would contravene section 208 of the Corporations Act
or that this document should for any other reason not be given
effect to; or, having given such notice, has given a
subsequent notice to the Trustee specifying that such
circumstance or reason no longer applies.
For the avoidance of doubt, the New Guarantors have no obligation to
ensure or endeavour to ensure that any of the conditions referred to
in paragraph (a) to (d) above are satisfied or take or refrain from
taking any action to preserve the benefit to the Trustee or any
other person of this document pending the satisfaction or otherwise
of those conditions.
If this deed poll does not come into effect within 90 days of the
date of this deed poll:
(e) the New Guarantors must return to the Trustee the amount
referred to in clause 2; and
Page 2
(f) if this deed poll subsequently becomes effective, the Trustee
must pay that amount to the New Guarantors upon demand.
Page 3
SCHEDULE 1 - NEW GUARANTORS
COMPANY NAME ACN
BCW Hotplate Bakery Pty Limited ACN 081 688 011
Country Bake Bakeries Pty Limited ACN 009 423 769
Ernest Adams Australia Pty Limited ACN 002 626 137
ETA Foods Limited ACN 000 982 007
Fielder Gillespie Davis Finance Pty Limited ACN 078 216 065
G F Australia Limited ACN 000 082 324
G F D Australia Pty Limited ACN 004 106 129
G F Defiance Pty Limited ACN 054 283 706
G F Finance International Pty Limited ACN 053 916 733
GF Finance Limited ACN 009 979 471
GF Fresh Pty Limited ACN 083 952 283
GF Group Services Pty Limited ACN 003 889 996
GF Trade Finance Pty Limited ACN 086 651 390
G Wood Son and Company Proprietary ACN 007 870 797
Limited
Gillespie Bros Holdings Limited ACN 008 407 109
Goodman Fielder Consumer Foods Limited ACN 000 024 546
Goodman Fielder Field Operations Limited ACN 082 246 437
Goodman Fielder Food Services Limited ACN 009 480 906
Goodman Fielder Ingredients Limited ACN 000 147 580
Goodman Fielder International Limited ACN 000 095 509
Goodman Fielder Limited ACN 000 003 958
ML (WA) Export Pty Limited ACN 000 173 964
Mowbray Industries Limited ACN 008 403 198
Namregtown International Limited ACN 003 995 506
Provincial Traders Foods Pty Limited ACN 008 593 253
QBA Properties Pty Limited ACN 000 357 111
Quality Bakers Australia Limited ACN 004 205 449
Rochna Pty Limited ACN 007 558 947
Stuart Bakery Pty Limited ACN 009 596 730
Sunicrust Bakeries Pty Limited ACN 004 402 582
Page 4
COMPANY NAME ACN
The Uncle Tobys Company Limited ACN 000 008 962
Uncle Tobys Properties Pty Limited ACN 004 211 812
William Jackett & Son Pty Limited ACN 007 874 213
Page 5
EXECUTED as a deed poll.
SIGNED, SEALED AND
DELIVERED
by Helen Golding
as attorney for EACH NEW
GUARANTOR DESCRIBED IN
SCHEDULE 1 under power of attorney
dated 23 June 2003
in the presence of:
/S/ MICHELLE LUK
----------------------
SIGNATURE OF WITNESS
MICHELLE LUK
----------------------
Name of witness (block letters)
SYDNEY /S/ HELEN GOLDING
---------------------- ---------------------------------
Address of witness By executing this deed poll the
attorney states that the attorney
LAWYER has received no notice of
---------------------- revocation of the power of attorney
Occupation of witness
Page 6