Exhibit 10.37
[MALLESONS STEPHEN JAQUES LOGO]
EXECUTION COPY
Deed of Debenture Trust
Dated 7 March 2003
Burns, Philp & Company Limited (ABN 65 000 000 359)
The entities listed in schedule 1
J.P. Morgan Australia Limited (ABN 52 002 888 011)
MALLESONS STEPHEN JAQUES
Level 28
Rialto
525 Collins Street
Melbourne Vic 3000
T +61 3 9643 4000
F +61 3 9643 5999
DX 101 Melbourne
TABLE OF CONTENTS
Clause Page
1 DEFINITIONS AND INTERPRETATION 2
1.1 Definitions 2
1.2 Interpretation 11
1.3 Headings 12
1.4 Issue of Debentures 12
2 DECLARATION OF TRUST 12
2.1 Declaration of trust 12
2.2 Vesting Date 12
2.3 Name of Trust 12
2.4 Not used 13
2.5 Nomination of Beneficiary and Transaction Document 13
2.6 Security Trustee consent 13
3 GENERAL POWERS, RIGHTS AND DUTIES OF SECURITY TRUSTEE 13
3.1 Rights and specific indemnities 13
3.2 Delegation 13
3.3 Directions to Security Trustee 14
3.4 Meetings of Beneficiaries 14
3.5 Retirement of Security Trustee 14
3.6 Removal of Security Trustee 14
3.7 Security Trustee may appoint successor 14
3.8 Transfer of rights 14
3.9 Acts of Security Trustee binding 15
3.10 Notices to Beneficiaries 15
3.11 Security Trustee's discretions 15
3.12 Determinations of Security Trustee 15
3.13 Advisers 15
3.14 Liability of Security Trustee 15
3.15 Parent Indemnity 16
3.16 Indemnity out of Trust Fund 16
3.17 Indemnity exception 16
3.18 Extent of liability 16
3.19 Appointment of Co-Trustee 17
3.20 Retirement of Co-Trustee; Removal 17
3.21 Reference to Security Trustee 17
3.22 Perfection and Maintenance of Security Interest 18
3.23 Notice of transfer 18
3.24 Assumptions as to Authenticity 18
4 DISTRIBUTION OF RECOVERED MONEY 18
4.1 Interest bearing account 18
4.2 Suspense account 18
4.3 Interest earned on suspense account 19
4.4 Distribution 19
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Clause Page
5 INTER-CREDITOR TERMS 19
5.1 Share of Recovered Money 19
5.2 Disposal or dealing with Secured Property 20
5.3 Benefit of entitlement 20
5.4 Notice of future financial accommodation 20
5.5 Continuance of rights, powers and remedies 20
5.6 Assignment or transfer of a Security 21
5.7 Enforcement and exercise of powers 21
5.8 Benefit of Beneficiaries 21
5.9 Marshalling 21
5.10 Treatment of amounts representing contingencies 21
6 CREATION AND ISSUE OF DEBENTURES AND DECLARATION OF TRUST 22
6.1 Issue of Debentures 22
6.2 Place for subscription 23
6.3 Conditions of issue of Debentures 23
6.4 Cancellation 23
6.5 Annual Return 23
6.6 Register of Debenture Holders 23
6.7 Conclusiveness of Register 24
6.8 Transfers of Debentures 25
6.9 Master Debenture 25
6.10 Register available for inspection 26
7 ACKNOWLEDGMENT OF INDEBTEDNESS 26
7.1 Status of Debenture 26
7.2 Undertaking to pay 26
8 DETERMINATION OF BENEFICIARY'S DEBT 27
8.1 Details of Beneficiary's Debt 27
9 NOTICES 27
9.1 Notices 27
9.2 Notice takes effect 27
9.3 Taken to be received 27
10 MISCELLANEOUS 28
10.1 Certificate 28
10.2 Waiver and variation 28
10.3 Exclusion of moratorium 28
10.4 Time of the essence 28
10.5 Further assurances 28
10.6 Inconsistency in remedies 28
10.7 Security Trustee Fees 28
10.8 No merger of security 29
10.9 Principal obligations 29
10.10 Continuing indemnities 29
10.11 Non-avoidance 30
10.12 Cumulative rights 30
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Clause Page
10.13 Assignments 30
10.14 Liability for Taxes and expenses 30
11 GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS 31
11.1 Governing law 31
11.2 Submission to jurisdiction 31
11.3 Service of process 31
12 COUNTERPARTS 31
12.1 Counterparts 31
SCHEDULE 1 - INITIAL BORROWERS 32
SCHEDULE 2 - NOTICES 33
SCHEDULE 3 - NOMINATION OF TRANSACTION DOCUMENTS 34
SCHEDULE 4 - FORM OF CO-TRUSTEE ACCESSION DEED 35
SCHEDULE 5 - FORM OF MASTER DEBENTURE 37
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THIS DEED OF DEBENTURE TRUST
is made on 2003 between the following parties:
1. BURNS, PHILP & COMPANY LIMITED ABN 65 000 000 359 ("PARENT")
2. THE ENTITIES LISTED IN SCHEDULE 1 (each an "INITIAL BORROWER")
3. J.P. MORGAN AUSTRALIA LIMITED ABN 52 002 888 011 ("SECURITY
TRUSTEE")
RECITALS
A. Each Borrower will be under a liability to repay money to be
received by it in respect of Debentures issued by that Borrower.
B. The Security Trustee enters into this deed for itself and as trustee
for the Beneficiaries from time to time under this deed.
C. The Security Trustee will hold among other things all its right,
title and interest in, to and under the Securities on trust for the
Beneficiaries on the terms and conditions of this deed.
D. The Security Trustee enters into this deed to protect the interests
of the Beneficiaries.
THIS DEED WITNESSES
that in consideration of, among other things, the mutual promises
contained in this deed and payment by the Security Trustee to each other
party to this deed of the sum of $10 (receipt of which is hereby
acknowledged), the parties agree:
1 DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this deed:
A DOLLARS, AUSTRALIAN DOLLARS AND A$ means the lawful currency of
Australia.
ACTUAL FRAUD means an intentional act or omission by the Security
Trustee which the Security Trustee knows is contrary to the
interests of the Beneficiaries or is indifferent as to whether it is
contrary to their interests or not.
AUTHORISED OFFICER means:
(a) in the case of the Security Trustee, a director, secretary or
an officer whose title contains the words "manager",
"vice-president", "treasurer", "secretary" or a person
performing the functions of any of them; and
(b) in the case of the Parent or a Borrower, a person appointed by
the Parent or a Borrower to act as an Authorised Officer for
the purpose of this deed.
BENEFICIARY means each of:
(a) a Debenture Holder;
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(b) any other person who the Parent has nominated as a Beneficiary
for the purposes of this deed and in respect of whom a
document has been nominated as a Transaction Document for the
purposes of paragraph (b) of the definition of "Transaction
Document" in this deed in accordance with clauses 2.5 and 2.6
of this deed.
BENEFICIARY'S DEBT means in the case of any Beneficiary, the total
of all amounts which are then due for payment, or which or may
become due for payment by a Group Party to the Beneficiary, in
connection with any Transaction Document in respect of which that
Beneficiary is a Beneficiary.
BORROWER means an Initial Borrower or a New Borrower.
BRIDGE SENIOR FUNDING AGREEMENT means the agreement dated 4 March
2003 between the Parent, the entities listed in schedule 1 to that
agreement, Credit Suisse First Boston, Melbourne Branch, BOS
International (Australia) Limited, Rabo Australia Limited and
Australia and New Zealand Banking Group Limited (as arrangers),
Credit Suisse First Boston, Melbourne Branch (as facility agent) and
the financial institutions listed in schedule 2 to that agreement.
BRIDGE TERM DEBENTURE means an obligation of a Borrower to a person
in respect of indebtedness of the Borrower to that person in
relation to a debenture subscribed for by that person under the
Bridge Term Facility Agreement and issued under clause 6.1(a) of
this deed, or assigned or novated to that person pursuant to the
Bridge Senior Funding Agreement, this deed and the Bridge Term
Master Debenture, such indebtedness being on the terms and
conditions set out in this deed and the Bridge Term Master Debenture
and recorded in and evidenced by registration in the Register.
BRIDGE TERM DEBENTURE HOLDER means, at any time, any person who at
the time has entered onto the Register as holding a Bridge Term
Debenture.
BRIDGE TERM FACILITY AGREEMENT means the agreement dated 4 March
2003 between the Parent, the entities listed in schedule 1 to that
agreement, Credit Suisse First Boston, Melbourne Branch (as facility
agent) and the financial institutions listed in schedule 2 to that
agreement.
BRIDGE TERM MASTER DEBENTURE means the Master Debenture in the form
of schedule 5 issued under clause 6.9(a).
BUSINESS DAY means a day (other than a Saturday or Sunday) on which
banks are open for business in Sydney and Melbourne.
CONTROLLER:
(a) in relation to a Group Party which is incorporated or
registered in Australia, has the meaning given to the word
"controller" in the Corporations Act, and includes any
Receiver; and
(b) in relation to a Group Party which is incorporated or
registered in any jurisdiction other than Australia, means a
receiver, receiver and manager or similar official appointed
under a Security.
CORPORATIONS ACT means the Corporations Act 2001 (Cth) of Australia.
CO-TRUSTEE ACCESSION DEED means a deed substantially in the form of
schedule 4 to this deed.
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DEBENTURE means:
(a) a Bridge Term Debenture;
(b) a Term Debenture;
(c) a Revolving Debenture;
(d) a US Debenture;
(e) a Term B2 Debenture; or
(f) a Further Debenture.
DEBENTURE HOLDER means, at any time, any person who at that time is
entered on the Register as holding a Debenture, and who has rights
against a Borrower under, and has the benefit of, a Master
Debenture.
EQUIVALENT AMOUNT means, in respect of any Paid Up Amount of a
Debenture denominated in a currency (PUA CURRENCY) which is
different from the currency of the Face Value Amount of that
Debenture (FVA CURRENCY), the amount of FVA Currency that would
purchase that Paid Up Amount in that PUA Currency at the relevant
Spot Rate for that day.
EURO means the lawful currency of the member states of the European
Union that adopted a single currency in accordance with the Treaty
establishing the European Community, as amended by the Treaty on
European Union.
EXCLUDED TAX means a Tax on net income in any jurisdiction, other
than:
(a) a Tax that is calculated on or by reference to the gross
amount of any payment derived by a party under a Transaction
Document or the transactions that a Transaction Document
contemplates (unless the Tax is imposed because the party has
not given its tax file number to the person who made the
payment or because the party has not complied with an
applicable certification, information, documentation or other
reporting requirement under applicable law); or
(b) a Tax that is imposed because a party is regarded as being
subject to tax in a jurisdiction solely because it is a party
to a Transaction Document or solely because it is
participating in the transactions that a Transaction Document
contemplates (or both).
FACE VALUE AMOUNT means in relation to:
(a) a Bridge Term Debenture, the amount recorded in the Register
as being the face value amount for that Bridge Term Debenture;
and
(b) a Term Debenture, the amount recorded in the Register as being
the face value amount for that Term Debenture; and
(c) a Revolving Debenture, the amount recorded in the Register as
being the face value amount for that Revolving Debenture; and
(d) a US Debenture, the amount recorded in the Register as being
the face value amount for that US Debenture; and
(e) a Term B2 Debenture, the amount recorded in the Register as
being the face value amount for that Term B2 Debenture; and
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(f) a Further Debenture, the amount recorded in the Register as
being the face value amount for that Further Debenture.
FURTHER ASSURANCE means any document including, without limitation,
a Security Interest, given by a Group Party to the Security Trustee
to provide more effective security to the Security Trustee over the
Secured Property for the payment of amounts which are secured by a
Security or to enable the Security Trustee to exercise its rights in
connection with a Security.
FURTHER DEBENTURE means an obligation of a Borrower to a person in
respect of indebtedness of the Borrower to that person in relation
to a debenture (other than a Bridge Term Debenture, Term Debenture,
Revolving Debenture, US Debenture or Term B2 Debenture) subscribed
for by that person and issued under clause 6.1(g) of this deed, or
assigned or novated to that person pursuant to the relevant Further
Subscription Agreement, this deed and the relevant Further Master
Debenture, such indebtedness being on the terms and conditions set
out in this deed and the relevant Further Master Debenture and
recorded in and evidenced by registration in the Register.
FURTHER DEBENTURE HOLDER means, at any time, any person who at the
time is entered on the Register as holding a Further Debenture.
FURTHER MASTER DEBENTURE means a master debenture in the form of
schedule 5 issued under clause 6.9(f).
FURTHER SUBSCRIPTION AGREEMENT means any document under which a
Beneficiary subscribes or agrees to subscribe for a Further
Debenture.
GROSS NEGLIGENCE means an act or omission of the Security Trustee
where the Security Trustee is indifferent to obvious risk of loss to
the Beneficiaries.
GROUP PARTY means the Parent and any Subsidiary from time to time
which is a party to a Transaction Document.
MAJORITY DEBENTURE HOLDERS has the same meaning as the term
"Majority Financiers" in the Security Trust Deed.
MASTER DEBENTURE means:
(a) the Bridge Term Master Debenture; and
(b) the Term Master Debenture; and
(c) the Revolving Master Debenture; and
(d) the US Master Debenture; and
(e) the Term B2 Master Debenture; and
(f) a Further Master Debenture.
NEW BORROWER means a person who has executed a deed, in form and
substance satisfactory to the Security Trustee, under which it
agrees to be bound under this deed as a Borrower.
PAID UP AMOUNT means in relation to:
(a) a Bridge Term Debenture, the aggregate of all amounts paid up
by a Bridge Term Debenture Holder with respect to its Bridge
Term Debenture in
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accordance with the Bridge Term Facility Agreement, as
recorded in the Register; and
(b) a Term Debenture, the aggregate of all amounts paid up by a
Term Debenture Holder with respect to its Term Debenture in
accordance with the Term A Facility Agreement, as recorded in
the Register; and
(c) a Revolving Debenture, the aggregate of all amounts paid up by
a Revolving Debenture Holder with respect to its Revolving
Debenture in accordance with the Revolving Facility Agreement,
as recorded in the Register; and
(d) a US Debenture, the aggregate of all amounts paid up by a US
Debenture Holder with respect to its US Debenture in
accordance with the US Subscription Agreement, as recorded in
the Register; and
(e) a Term B2 Debenture, the aggregate of all amounts paid up by a
Term B2 Debenture Holder with respect to its Term B2 Debenture
in accordance with the Term B2 Subscription Agreement, as
recorded in the Register; and
(f) a Further Debenture, the aggregate of all amounts paid up by a
Further Debenture Holder with respect to its Further Debenture
in accordance with its related Further Subscription Agreement,
as recorded in the Register.
POWER means any right, power, authority, discretion or remedy
conferred on the Security Trustee or a Controller by any Transaction
Document or any applicable law.
PRIORITY 1 BENEFICIARY means a Beneficiary whose Beneficiary's Debt
arises under a Priority 1 Transaction Document.
PRIORITY 1 BENEFICIARY'S DEBT means the Beneficiary's Debt of a
Priority 1 Beneficiary which arises under a Priority 1 Transaction
Document.
PRIORITY 1 BENEFICIARY'S PROPORTION means on a Recovered Moneys
Distribution Date the proportion expressed as a percentage (rounded,
if necessary, to the nearest two decimal places) which a Priority 1
Beneficiary's Debt bears to the aggregate of all Priority 1
Beneficiaries Debts on that Recovered Moneys Distribution Date.
PRIORITY 1 TRANSACTION DOCUMENT means:
(a) the Bridge Senior Funding Agreement;
(b) the Bridge Term Facility Agreement;
(c) the TLA Senior Funding Agreement;
(d) the Term A Facility Agreement;
(e) the Revolving Facility Agreement;
(f) the US Subscription Agreement;
(g) the Term B2 Subscription Agreement;
(h) each Bridge Term Master Debenture, Term Master Debenture,
Revolving Master Debenture, US Master Debenture and Term B2
Master Debenture;
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(i) each other Transaction Document nominated by the Parent in
accordance with clause 2.5 and designated as such in such
nomination.
PRIORITY 2 BENEFICIARY means a Beneficiary whose Beneficiary's Debt
arises under a Priority 2 Transaction Document.
PRIORITY 2 BENEFICIARY'S DEBT means the Beneficiary's Debt of a
Priority 2 Beneficiary which arises under a Priority 2 Transaction
Document.
PRIORITY 2 BENEFICIARY'S PROPORTION means on a Recovered Moneys
Distribution Date the proportion expressed as a percentage (rounded,
if necessary, to the nearest two decimal places) which a Priority 2
Beneficiary's Debt bears to the aggregate of all Priority 2
Beneficiaries Debts on that Recovered Moneys Distribution Date.
PRIORITY 2 TRANSACTION DOCUMENT means each Transaction Document
nominated by the Parent in accordance with clause 2.5 and designated
as such in such nomination.
PRIORITY 3 BENEFICIARY means a Beneficiary whose Beneficiary's Debt
arises under a Priority 3 Transaction Document.
PRIORITY 3 BENEFICIARY'S DEBT means the Beneficiary's Debt of a
Priority 3 Beneficiary which arises under a Priority 3 Transaction
Document.
PRIORITY 3 BENEFICIARY'S PROPORTION means on a Recovered Moneys
Distribution Date the proportion expressed as a percentage (rounded,
if necessary, to the nearest two decimal places) which a Priority 3
Beneficiary's Debt bears to the aggregate of all Priority 3
Beneficiaries Debts on that Recovered Moneys Distribution Date.
PRIORITY 3 TRANSACTION DOCUMENT means each Transaction Document
nominated by the Parent in accordance with clause 2.5 and designated
as such in such nomination.
PRIORITY 4 BENEFICIARY means a Beneficiary whose Beneficiary's Debt
arises under a Priority 4 Transaction Document.
PRIORITY 4 BENEFICIARY'S DEBT means the Beneficiary's Debt of a
Priority 4 Beneficiary which arises under a Priority 4 Transaction
Document.
PRIORITY 4 BENEFICIARY'S PROPORTION means on a Recovered Moneys
Distribution Date the proportion expressed as a percentage (rounded,
if necessary, to the nearest two decimal places) which a Priority 4
Beneficiary's Debt bears to the aggregate of all Priority 4
Beneficiaries Debts on that Recovered Moneys Distribution Date.
PRIORITY 4 TRANSACTION DOCUMENT means each Transaction Document
nominated by the Parent in accordance with clause 2.5 and designated
as such in such nomination.
RECEIVER means a receiver or receiver and manager appointed under a
Security.
RECOVERED MONEY means the aggregate amount received in accordance
with clause 4 which has not been distributed under this deed.
RECOVERED MONEY DISTRIBUTION DATE means a day on which Recovered
Money is available for distribution in accordance with clause 4.4.
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REGISTER means a register of Debenture Holders maintained by the
Security Trustee under this deed.
REVOLVING DEBENTURE means an obligation of a Borrower to a person in
respect of indebtedness of the Borrower to that person in relation
to a debenture subscribed for by that person under the Revolving
Facility Agreement and issued under clause 6.1(c) of this deed, or
assigned or novated to that person pursuant to the TLA Senior
Funding Agreement, this deed and the Revolving Master Debenture,
such indebtedness being on the terms and conditions set out in this
deed and the Revolving Master Debenture and recorded in and
evidenced by registration in the Register.
REVOLVING DEBENTURE HOLDER means, at any time, any person who at the
time is entered on the Register as holding a Revolving Debenture.
REVOLVING FACILITY AGREEMENT means the agreement dated 16 January
2003 (as amended and restated) made between the Parent, the entities
listed in schedule 1 to that agreement, Credit Suisse First Boston,
Melbourne Branch (as facility agent) and the financial institutions
listed in schedule 2 to that agreement.
REVOLVING MASTER DEBENTURE means the master debenture in the form of
schedule 5 issued under clause 6.9(c).
SECURED PROPERTY means all property secured under any Security.
SECURITY means the benefit of any Security Interest which forms part
of the Trust Fund.
SECURITY INTEREST means:
(a) any bill of sale (as defined in any statute), mortgage,
charge, lien, pledge, hypothecation, title retention
arrangement, trust or power, as or in effect as security for
the payment of a monetary obligation or the observance of any
other obligation; and
(b) any guarantee or indemnity.
SECURITY TRUST DEED means the security trust deed dated 28 July 1998
between the Parent and J.P. Morgan Australia Limited (formerly Chase
Securities Australia Limited).
SPOT RATE means, on any day, the rate determined by the Security
Trustee, in accordance with its usual practice and in the interbank
market selected by it, to be the rate at which it is able to
purchase one currency by payment in another currency (whether
directly or indirectly through one or more intermediate currencies)
at or about 11.00am (local time) in the place of that market):
(a) in the case of Euro, 2 Target Business Days before that Day;
and
(b) in the case of any other currency, 2 Business Days (in the
place of that market) before that day,
for delivery on that day.
STATEMENT has the meaning given to that term in clause 9.1(a)(1).
SUBSCRIPTION AGREEMENT means each of:
(a) the Bridge Term Facility Agreement;
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(b) the Term A Facility Agreement;
(c) the Revolving Facility Agreement;
(d) the US Subscription Agreement;
(e) the Term B2 Subscription Agreement; and
(f) any Further Subscription Agreement.
SUBSIDIARY of any person means any corporation, partnership, joint
venture, trust or of which (or in which):
(a) (in the case of corporation)
(1) more than 50% of the issued and outstanding voting share
capital;
(2) more than 50% of the issued and outstanding share
capital (excluding any part of that issued share capital
that carries no right to participate beyond a specified
amount in a distribution of either profits or capital);
or
(3) the power to appoint or control the appointment of more
than 50% of the board of directors (irrespective of
whether, at the time, share capital of any other class
or classes of such corporation shall or might have
voting power upon the occurrence of any contingency);
(b) in the case of a partnership or joint venture not being a
corporation) more than 50% of the interest in the capital or
profits of such partnership or joint venture; or
(c) in the case of a trust or estate) more than 50% of the
beneficial interest in such trust or estate,
is at the time directly or indirectly owned or controlled by such
person, by such person and one or more of its other Subsidiaries or
by one or more of such person's other Subsidiaries.
TARGET BUSINESS DAY means a day on which the TARGET System is
operating.
TARGET SYSTEM means the Trans-European Automated Real-Time Gross
Settlement Express Transfer (TARGET) System or any successor system.
TAX means a tax, levy, impost, duty, charge, deduction or
withholding, however it is described, that is imposed by a law or a
Government Agency, together with any related interest, penalty, fine
or other charge.
TERM A FACILITY AGREEMENT means the agreement dated 16 January 2003
(as amended and restated) made between the Parent, the entities
listed in schedule 1 to that agreement, Credit Suisse First Boston,
Melbourne Branch (as facility agent) and the financial institutions
listed in schedule 2 to that agreement.
TERM B2 DEBENTURE means the obligations of the Term B2 Debenture
Issuer to a person in respect of indebtedness of that Borrower to
that person in relation to a debenture subscribed for by that person
under the Term B2 Subscription Agreement and issued under clause
6.1(e) of this deed, or assigned or novated to that person pursuant
to the Term B2 Subscription Agreement, this deed and the Term B2
Master Debenture, such indebtedness being on the terms and
conditions
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set out in this deed and the Term B2 Master Debenture and recorded
in and evidenced by registration in the Register.
TERM B2 DEBENTURE HOLDER means, at any time, any person who at the
time is entered on the Register as holding the Term B2 Debenture.
TERM B2 DEBENTURE ISSUER means BPCUS1 Inc.
TERM B2 MASTER DEBENTURE means the master debenture in the form of
schedule 5 issued under clause 6.9(e).
TERM B2 SUBSCRIPTION AGREEMENT means the agreement entitled "Term B2
Subscription Agreement" to be entered into between Burns Philp Inc.
and the Term B2 Debenture Issuer.
TERM DEBENTURE means an obligation of the Borrowers to a person in
respect of indebtedness of a Borrower to that person in relation to
a debenture subscribed for by that person under the Term A Facility
Agreement and issued under clause 6.1(b) of this deed, or assigned
or novated to that person pursuant to the TLA Senior Funding
Agreement, this deed and the Term Master Debenture, such
indebtedness being on the terms and conditions set out in this deed
and the Term Master Debenture and recorded in and evidenced by
registration in the Register.
TERM DEBENTURE HOLDER means, at any time, any person who at the time
is entered on the Register as holding a Term Debenture.
TERM MASTER DEBENTURE means the master debenture in the form of
schedule 5 issued under clause 6.9(b).
TLA SENIOR FUNDING AGREEMENT means the agreement dated 16 January
2003 (as amended and restated) made between the Parent, the entities
listed in schedule 1 to that agreement, Credit Suisse First Boston,
Melbourne Branch, BOS International (Australia) Limited and Credit
Agricole Indosuez Australia Limited (as arrangers), Credit Suisse
First Boston, Melbourne Branch (as facility agent) and the financial
institutions listed in schedule 2 to that agreement.
TRANSACTION DOCUMENTS means:
(a) this deed;
(b) any other document nominated by the Parent as a Transaction
Document and each document nominated by the Parent as a
Priority 1, Priority 2, Priority 3 or Priority 4 Transaction
Document for the purposes of, and in accordance with, this
deed until such time as the Parent and the Security Trustee
agree that any such document is no longer to be a Transaction
Document;
(c) each Debenture and each Subscription Agreement and Treasury
Transaction to which a Beneficiary is a party; and
(d) any other instrument by which the Parent or any other entity
grants any Security Interest to the Security Trustee for the
benefit of the Beneficiaries.
TRUST means the trust constituted by this deed.
TRUST FUND means the amount held by the Security Trustee under
clause 2.1 together with the benefit of this deed and any other
property which the Security Trustee acquires to hold on the trusts
of this deed and shall include, without
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limitation, the Security Trustee's right, title and interest in each
Transaction Document which the Security Trustee executes or receives
the benefit of after the date of this deed in its capacity as
trustee of the Trust and any property which represents the proceeds
of sale of any such property or proceeds of enforcement of any
Transaction Document.
US DEBENTURE means the obligations of the US Debenture Issuer to a
person in respect of indebtedness of that Borrower to that person in
relation to a debenture subscribed for by that person under the US
Subscription Agreement and issued under clause 6.1(d) of this deed,
or assigned or novated to that person pursuant to the US
Subscription Agreement, this deed and the US Master Debenture, such
indebtedness being on the terms and conditions set out in this deed
and the US Master Debenture and recorded in and evidenced by
registration in the Register.
US DEBENTURE HOLDER means, at any time, any person who at the time
is entered on the Register as holding the US Debenture.
US DEBENTURE ISSUER means BPCUS1 Inc.
US MASTER DEBENTURE means the master debenture in the form of
schedule 5 issued under clause 6.9(d).
US SUBSCRIPTION AGREEMENT means the agreement entitled "Term B
Subscription Agreement" to be entered into between Burns Philp Inc.
and the US Debenture Issuer.
VESTING DATE means the earlier of:
(a) the eightieth anniversary of the date of this deed; and
(b) the date upon which all Securities have been fully and finally
discharged according to their terms (or, if discharged at
different times, the date on which the last is fully and
finally discharged) and all Recovered Moneys distributed in
accordance with this deed.
WILFUL DEFAULT means an act or omission of the Security Trustee
where the Security Trustee knows it is committing, and intends to
commit, a breach of its duty as Security Trustee or outside its
powers, or is indifferent as to whether that act or omission is or
is not a breach of duty or within its powers.
1.2 INTERPRETATION
In this deed unless the contrary intention appears:
(a) a reference to this deed or another instrument includes any
variation or replacement of any of them;
(b) a reference to a statute, ordinance, code or other law
includes regulations and other instruments under it and
consolidations, amendments, re-enactments or replacements of
any of them;
(c) the singular includes the plural and vice versa;
(d) the word "person" includes a firm, body corporate, an
unincorporated association or an authority;
(e) a reference to a person includes a reference to the person's
executors, administrators, successors, substitutes (including,
without limitation, persons taking by novation) and assigns;
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(f) an agreement, representation or warranty in favour of two or
more persons is for the benefit of them jointly and severally;
(g) an agreement, representation or warranty on the part of two or
more persons binds them jointly and severally;
(h) a reference to any thing (including, without limitation, any
amount) is a reference to the whole and each part of it and a
reference to a group of persons is a reference to all of them
collectively, to any two or more of them collectively and to
each of them individually;
(i) if an act prescribed under this deed to be done by a party on
or by a given day is done after 4.00pm on that day, it is to
be taken to be done on the following day;
(j) a time of day shall be construed as a reference to Sydney
time;
(k) any amount, limit or threshold amount, shall be construed as
including the equivalent therefore in any other currency on
the date such amount or limit requires to be determined;
(l) where pursuant to this deed an amount of interest is to be
calculated in respect of any amount for any period, such
calculation shall be made so as to include the first day of
such period and to exclude the last.
1.3 HEADINGS
Headings are inserted for convenience and do not affect the
interpretation of this deed.
1.4 ISSUE OF DEBENTURES
References in the Transaction Documents to the issue of Debentures
are references to the issue of the Master Debenture to which those
Debentures relate and to the recording in the Register of the
details of those Debentures and the Debenture Holders of those
Debentures.
2 DECLARATION OF TRUST
2.1 DECLARATION OF TRUST
The Security Trustee declares that it holds the sum of A$10 (ten
Australian dollars) and will hold the Trust Fund on trust at any
time for the persons who are Beneficiaries at that time.
2.2 VESTING DATE
The trust established under this deed commences on the date of this
deed and unless determined earlier is to end on the Vesting Date.
2.3 NAME OF TRUST
The trust established under this deed is to be known as the "BPC
Security Trust No. 2".
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2.4 NOT USED
2.5 NOMINATION OF BENEFICIARY AND TRANSACTION DOCUMENT
The Parent may nominate a person to be a Beneficiary under this deed
or a document as a Transaction Document for the purposes of
paragraph (b) of the definition of "Transaction Document" in clause
1.1 by delivering to the Security Trustee a notice in the form of
schedule 3.
2.6 SECURITY TRUSTEE CONSENT
The Parent agrees not to nominate a person as a Beneficiary or a
document as a Transaction Document for the purposes of paragraph (b)
of the definition of "Transaction Document" in clause 1.1 except:
(a) where the person is a Debenture Stockholder (as defined in the
Security Trust Deed) and the document is a Transaction
Document (as defined in the Security Trust Deed); or
(b) where the person is or is to be a Debenture Holder and the
document is a Debenture and/or the related Subscription
Agreement that has been or is to be provided as security to or
for the benefit (directly or indirectly) of a person and in
respect of a document as described in paragraph (a); or
with the prior written consent of the Security Trustee (acting upon
the instructions of the Majority Debenture Holders).
3 GENERAL POWERS, RIGHTS AND DUTIES OF SECURITY TRUSTEE
3.1 RIGHTS AND SPECIFIC INDEMNITIES
(a) The Security Trustee agrees to exercise the rights, remedies,
powers and discretions and perform the obligations which are
delegated to or conferred on it by the Transaction Documents.
However, the Security Trustee is not bound to exercise any
right, remedy, power or discretion or perform any obligation
under the Transaction Documents unless it is first indemnified
to its reasonable satisfaction so far as is permitted by law,
by the persons requiring it to act, against all costs, charges
and expenses and liability to be incurred in so acting.
(b) The Security Trustee has no obligations except those expressly
set out or referred to in the Transaction Documents and
without limitation the Security Trustee is not obliged to:
(1) undertake any investigation as to the existence of any
property which purports to be Secured Property of or the
title to any Secured Property;
(2) get in any title documents under its control;
(3) obtain any valuation of any Secured Property;
(4) stamp or register any Transaction Document.
3.2 DELEGATION
The Security Trustee may employ agents and attorneys including,
without limitation, an agent to maintain the Register.
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3.3 DIRECTIONS TO SECURITY TRUSTEE
Wherever in this deed or a Transaction Document the Security Trustee
is given a discretion, power or right to do or to consent to the
doing of any thing under this deed, the Security Trustee must do or
consent to the doing of that thing, or refrain from doing or consent
to the doing of that thing, as the case may be if so directed by the
Majority Debenture Holders.
3.4 MEETINGS OF BENEFICIARIES
The Security Trustee may at any time convene a meeting of all
Beneficiaries or all Debenture Holders for any purpose and in any
such manner as the Security Trustee deems fit.
3.5 RETIREMENT OF SECURITY TRUSTEE
The Security Trustee may retire at any time without assigning any
reason upon giving at least 30 days prior written notice to the
Parent and all Debenture Holders of its intention to do so. However,
the Security Trustee cannot retire until a replacement Security
Trustee has been appointed, the Security Trustee has complied with
its obligations in clause 3.8 and the replacement Security Trustee
has executed the documents required to be executed in that clause.
3.6 REMOVAL OF SECURITY TRUSTEE
The Security Trustee may be removed from office under this deed by a
written direction from the Majority Debenture Holders.
Any such direction must give at least 30 days notice to the Security
Trustee. A copy of the direction must be given to the Parent and all
Debenture Holders at the same time it is given to the Security
Trustee. However, subject to clause 3.7, the Security Trustee cannot
be removed until a replacement Security Trustee is appointed in
accordance with this deed.
3.7 SECURITY TRUSTEE MAY APPOINT SUCCESSOR
If a replacement Security Trustee has not been appointed by the
effective date in the notice referred to in clause 3.5 or the
direction referred to in clause 3.6, the Security Trustee may
appoint a replacement Security Trustee by deed and that appointment
is effective without the approval of the Parent or of any Debenture
Holders.
If the Security Trustee has made all reasonable endeavours to
appoint a replacement Security Trustee, and no such replacement
Security Trustee was able or willing to act as such on terms
acceptable to the Security Trustee, the Security Trustee may
nevertheless retire with immediate effect and transfer to one or
more Debenture Holders selected by the Security Trustee the rights,
benefits, powers and property held by the outgoing Security Trustee
in connection with this deed. Such Debenture Holder shall thereupon
be the Security Trustee until a replacement Security Trustee is
approved.
3.8 TRANSFER OF RIGHTS
If a replacement Security Trustee is appointed, the outgoing
Security Trustee must execute all documents and do all things
reasonably within its power to transfer to the replacement Security
Trustee all rights, benefits, power and property held by the
outgoing Security Trustee in connection with this deed. The
replacement
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Security Trustee must execute all documents and do all other things
reasonably within its power to assume the obligations, duties and
burdens of the outgoing Security Trustee in connection with this
deed.
3.9 ACTS OF SECURITY TRUSTEE BINDING
Any act, matter or thing done or document signed by the Security
Trustee acting properly within its rights, powers, duties and
obligations under this deed shall be binding on every Beneficiary.
3.10 NOTICES TO BENEFICIARIES
Promptly upon receipt of a notice or other written communication
from any person under or in connection with this deed or any
Transaction Document, the Security Trustee may, subject to any
relevant confidentiality obligations, send to each Beneficiary a
copy of that notice or written communication.
3.11 SECURITY TRUSTEE'S DISCRETIONS
Subject to clause 3.3, the Security Trustee shall as regards all the
powers, authorities and discretions vested by this deed in it, have
absolute and uncontrolled discretion as to the exercise thereof in
all respects and, the Security Trustee shall not be in any way
responsible for any costs, damages, claims, obligations or
inconvenience that may result from the exercise or non-exercise
thereof except to the extent that it is caused by the Security
Trustee's Actual Fraud, Wilful Default or Gross Negligence.
3.12 DETERMINATIONS OF SECURITY TRUSTEE
In the case of any matter requiring an opinion or determination of
or exercise of any right, remedy, power or discretion or performance
of any obligation by the Security Trustee, the Security Trustee may
seek a written direction of the Majority Debenture Holders in
accordance with clause 3.3 as to the relevant matter and shall be
under no obligation to act until it has received a written direction
instructing the Security Trustee to do so.
3.13 ADVISERS
The Security Trustee may in relation to this deed or the rights or
the powers conferred by this deed act on the advice or information
received from any properly qualified adviser of any kind appropriate
to the particular case including without limitation any lawyer,
accountant, auditor, actuary, surveyor, engineer, architect,
stockbroker or valuer, whether obtained by the Security Trustee or
by any other persons or otherwise and the Security Trustee shall not
be liable for any loss caused by doing so whether or not the advice
or information is correct other than as provided in clause 3.17.
3.14 LIABILITY OF SECURITY TRUSTEE
The Security Trustee shall not be liable to any Debenture Holder or
to any party to this deed or otherwise be responsible for:
(a) any loss or damage occurring as a result of it exercising,
failing to exercise or purporting to exercise any right or
power under any Transaction Document; or
(b) the default of any agent of the Security Trustee, whether or
not the employment or appointment of the agent was necessary
or expedient; or
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(c) any mistake or omission made by the Security Trustee; or
(d) any other matter or thing done in relation to any Transaction
Document or any other document contemplated in any Transaction
Document; or
(e) any action or omission of the Security Trustee in accordance
with or consistent with the instructions or directions of the
Debenture Holders; or
(f) acting on any resolution purporting to have been passed at any
meeting of Debenture Holders at which minutes were made and
signed even though it may subsequently be found that there was
some defect in the constitution of the meeting or the passing
of the resolution or for any other reason the resolution was
ineffective and not binding on any of those Debenture Holders
whom it purports to bind or the Security Trustee; or
(g) monies subscribed by any Debenture Holder or the due
application for Debentures,
unless and to the extent that any resultant loss or damage is caused
by the Actual Fraud, Wilful Default or Gross Negligence of the
Security Trustee.
3.15 PARENT INDEMNITY
Without limiting any other indemnity to which the Security Trustee
is entitled, and subject to clause 3.17, the Parent indemnifies the
Security Trustee against any cost, expense, loss or liability
incurred by the Security Trustee as a result of the Security Trustee
complying with directions properly given to it in accordance with
the Transaction Documents by the Debenture Holders in respect of the
Trust Fund. The Parent must pay or reimburse the Security Trustee on
demand for all reasonable expenses payable in connection with this
indemnity.
3.16 INDEMNITY OUT OF TRUST FUND
Without limiting any other indemnity to which the Security Trustee
is entitled, and subject to clause 3.17, the Security Trustee will
be indemnified out of the Trust Fund against any cost, expense, loss
or liability properly incurred by the Security Trustee in connection
with it acting as trustee of the Trust. The Security Trustee will
not be obliged to act in relation to the enforcement of any
Transaction Document or other document contemplated in this deed
unless it is put in funds to the extent to which it may become
liable in relation to the enforcement (including costs and
expenses).
3.17 INDEMNITY EXCEPTION
The indemnity given in clauses 3.15 and 3.16 will not apply to the
extent that the relevant cost, expense, loss or liability arises as
a result of the Security Trustee's Actual Fraud, Wilful Default or
Gross Negligence.
3.18 EXTENT OF LIABILITY
Except in the case of Actual Fraud, Wilful Default or Gross
Negligence on the part of the Security Trustee, the Security Trustee
is not liable to any person in relation to the Trust, nor shall any
such person be entitled to enforce any rights against the Security
Trustee, to any greater extent than the Security Trustee is actually
indemnified from the Trust Fund.
If any such person does not recover all moneys owing to it under
such liabilities or rights, it may not seek to recover the shortfall
by bringing proceedings against the
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Security Trustee in its personal capacity or applying to have the
Security Trustee wound up or proving in the winding up of the
Security Trustee (except in relation to the assets of the Trust). To
avoid doubt this paragraph does not apply in the case of Actual
Fraud, Wilful Default or Gross Negligence.
3.19 APPOINTMENT OF CO-TRUSTEE
(a) If, at any time or times, in order to conform with any law of
any jurisdiction in which any Group Party shall then own or
hold any property that constitutes Secured Property, the
Security Trustee shall be advised by counsel satisfactory to
it that it is necessary or prudent in the interest of the
Beneficiaries so to do, the Security Trustee shall execute and
deliver any and all instruments and agreements necessary or
proper to appoint another trust company, bank or banking
association, or one or more persons or entities, approved by
the Security Trustee, either to act as co-trustee or
co-trustees hereunder, jointly with the Security Trustee, or
to act as separate trustee or trustees hereunder, and the
trust company, bank or banking association or the person,
persons or other entity so appointed shall be such co-trustee
or co-trustees, or separate trustee or trustees, with such
powers, duties and discretion as shall be specified in the
said instruments or agreements of appointment, executed as
aforesaid.
(b) The parties to this deed hereby acknowledge and agree that the
Security Trustee may appoint JPMorgan Chase Bank as a
co-trustee or a separate trustee subject to executing and
delivering any and all instruments and agreements necessary or
proper to appoint JPMorgan Chase Bank to act as co-trustee or
as a separate trustee.
(c) The appointment of an entity as co-trustee or as a separate
trustee under paragraphs (a) or (b) of this clause may be
effected (without anything further to be done under those
paragraphs) by the entity executing a Co-Trustee Accession
Deed and doing all other things (including executing and
delivering any instrument or agreement) which the Security
Trustee may reasonably require. Any entity appointed pursuant
to this paragraph shall be severally liable in respect of its
obligations as co-trustee or as a separate trustee.
(d) Where a co-trustee is appointed pursuant to clause 3.19, the
Trust Fund may be held either in whole or in part by one or
more of the co-trustees or as tenants in common.
3.20 RETIREMENT OF CO-TRUSTEE; REMOVAL
Each co-trustee or separate trustee appointed pursuant to the
provisions of clause 3.19 may retire and may be removed and
successors to such trustees may be appointed in the same manner as
the Security Trustee may retire or be removed or a successor to the
Security Trustee appointed as provided in this deed.
3.21 REFERENCE TO SECURITY TRUSTEE
The references to the Security Trustee in clauses 3.1-5.10
(inclusive) and clauses 9.1-10.14 (inclusive) of this deed shall
apply to a co-trustee appointed under clause 3.19 as if those
references were to the co-trustee.
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3.22 PERFECTION AND MAINTENANCE OF SECURITY INTEREST
Despite any other provision in a Transaction Document and subject to
a direction by the Majority Debenture Holders (provided the Security
Trustee is indemnified in accordance with clause 3.1(a)), the
Security Trustee shall not be responsible for the validity,
perfection, priority or enforceability of any lien or Security
Interest and shall have no obligation to take any action to procure
or maintain such validity, perfection, priority or enforceability.
The Parent shall, and shall ensure that each Group Party shall, at
its expense, prepare, give, execute, deliver, file and/or record any
notice, financing statement, continuation statement, public deed,
instrument or agreement necessary to preserve, continue, perfect or
validate any Security Interest granted under the Transaction
Documents or pursuant to the Transaction Documents with respect to
such Security Interest, including, but without limitation, taking
all such actions as may be necessary to prepare, execute and file
under the "UCC" of New York financing statements, continuation
statements and other documents in connection with such security
interests. The Parent shall, at its expense, furnish the Security
Trustee, no later than 30 days following 28 July each year with an
opinion of counsel specifying the action taken or required to be
taken by the Parent and the Group Parties to comply with this clause
3.22 since the date of this deed or the last such opinion of counsel
and stating that all required action has been taken, or stating that
no action is necessary.
3.23 NOTICE OF TRANSFER
The Security Trustee may treat each Beneficiary as the holder of the
Beneficiary's rights under the Transaction Documents until the
Security Trustee has received an instrument of transfer in the form
required by the relevant Subscription Agreement or other Transaction
Document or any other form of transfer or novation approved by the
Security Trustee.
3.24 ASSUMPTIONS AS TO AUTHENTICITY
The Security Trustee and each of its officers, employees and agents
is not required to ascertain or enquire as to the authenticity or
accuracy of any notice, certificate, statement, report or other
document delivered or given to it for the purposes of or in
connection with this document, and is entitled to rely upon and is
not obliged to verify the same unless there is a manifest error on
the face of any such document.
4 DISTRIBUTION OF RECOVERED MONEY
4.1 INTEREST BEARING ACCOUNT
If at any time the Security Trustee receives money under a
Transaction Document then the money must be placed into an interest
bearing account with a bank or financial institution which is rated
AA- or better by Standard & Poors or which bears a rating of
similar status and then distributed by the Security Trustee in
accordance with clause 4.4.
4.2 SUSPENSE ACCOUNT
Unless the Majority Debenture Holders decide otherwise, money
referred to in clause 4.1 does not form part of the Recovered Money
on a Recovered Money Distribution Date if any Transaction Document
permits the money to be placed to
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the credit of a suspense account in order to preserve rights to
prove in the bankruptcy or liquidation of any person.
4.3 INTEREST EARNED ON SUSPENSE ACCOUNT
Any suspense account to which money is placed under clause 4.2 is to
be an interest bearing account selected reasonably by the Security
Trustee. Interest earned on the account is to be treated as
Recovered Money.
4.4 DISTRIBUTION
Unless otherwise provided in a Transaction Document or in any other
instrument contemplated in a Transaction Document, Recovered Money
is to be distributed by the Security Trustee as soon as practicable
after the Security Trustee receives it as follows:
(a) first, to the extent that the Recovered Money represents money
recovered under a Security which provides for the appointment
of a Receiver, in the order provided for under the Security up
to and including the category of satisfying the remuneration
of the Receiver (as defined in that Security);
(b) secondly, towards satisfaction of all costs, charges and
expenses incurred by the Security Trustee in or incidental to
the exercise or performance or attempted exercise or
performance of any of the rights, powers or remedies conferred
under any Transaction Document;
(c) thirdly, towards satisfaction of any other expenses or
outgoings in connection with any receivership under or the
enforcement of any Transaction Document;
(d) fourthly, towards payment to the Security Trustee of any fees,
or money due to it in its capacity as agent under any
Transaction Document;
(e) fifthly, towards payment to each Beneficiary in accordance
with clause 5.1 of this deed;
(f) sixthly, to the extent that the Security secures the payment
of other amounts, towards payment to the persons entitled to
those amounts and, if more than one, in a proportion for each
person equal to the proportion that the amount owed to that
person bears to the aggregate amount owed to all those
persons; and
(g) seventhly, to each Group Party which is a party to that
Security.
5 INTER-CREDITOR TERMS
5.1 SHARE OF RECOVERED MONEY
On each Recovered Money Distribution Date each Beneficiary is
entitled to share in the Recovered Money available for distribution
to the Beneficiaries on that Recovered Money Distribution Date in
the following order of priority and to the following extent:
(a) firstly, to Priority 1 Beneficiaries where any outstanding
Priority 1 Beneficiary's Debt exists, to the extent of each
Priority 1 Beneficiary's Proportion applicable on that
Recovered Money Distribution Date;
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(b) secondly, to Priority 2 Beneficiaries where any
outstanding Priority 2 Beneficiary's Debt exists, to the
extent of each Priority 2 Beneficiary's Proportion
applicable on that Recovered Money Distribution Date;
(c) thirdly, to Priority 3 Beneficiaries where any
outstanding Priority 3 Beneficiary's Debt exists, to the
extent of each Priority 3 Beneficiary's Proportion
applicable on that Recovered Money Distribution Date;
(d) fourthly, to Priority 4 Beneficiaries where any
outstanding Priority 4 Beneficiary's Debt exists, to the
extent of each Priority 4 Beneficiary's Proportion
applicable on that Recovered Money Distribution Date.
5.2 DISPOSAL OR DEALING WITH SECURED PROPERTY
The entitlements set out in this deed operate in respect of the
money received from the disposal of, or other dealing with, the
Secured Property or the Trust Fund whether or not the disposal or
dealing occurs as a consequence of the enforcement of a Security.
5.3 BENEFIT OF ENTITLEMENT
The entitlements set out in this clause 5 apply despite anything
which might otherwise affect those entitlements including, without
limitation:
(a) a fluctuation in the amount secured by a Security from time to
time;
(b) any rule of law or equity;
(c) a notice received by a Beneficiary or the Security Trustee
under a Security;
(d) a notice received by a Beneficiary or the Security Trustee of
a Security Interest;
(e) the order of execution or registration of a Security or
anything in a Security;
(f) the fact that a Beneficiary's Debts are not yet payable;
(g) the order in which accommodation is provided or liabilities
(whether actual or contingent) are incurred;
(h) the variation or release of a Security or monetary obligation;
(i) any failure to enforce a Security, chose in action or
judgment.
5.4 NOTICE OF FUTURE FINANCIAL ACCOMMODATION
A Beneficiary need not give written notice to the other
Beneficiaries of financial accommodation provided which constitutes
a Beneficiary's Debts.
5.5 CONTINUANCE OF RIGHTS, POWERS AND REMEDIES
This deed does not affect:
(a) the rights, powers and remedies of the Beneficiaries in
connection with the Secured Property; or
(b) the Parent's and Group Parties' obligations in connection with
the Beneficiaries' Debts.
except to the extent specifically provided for in this deed.
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5.6 ASSIGNMENT OR TRANSFER OF A SECURITY
The Security Trustee may not transfer, assign or otherwise deal with
a Security unless:
(a) the transfer, assignment or dealing occurs in connection with
the enforcement of a Security; or
(b) the transferee, assignee or other person obtaining an interest
in that Security has entered into a deed with the Parent and
the Security Trustee in which it agrees to be bound by those
provisions of this deed which relate to the transferring,
assigning or otherwise dealing with that Security and has
delivered the deed to the Parent and the Security Trustee; or
(c) the transfer, assignment or other dealing is directed by the
Majority Debenture Holders or approved under any Transaction
Document.
5.7 ENFORCEMENT AND EXERCISE OF POWERS
If a Security becomes enforceable, then the Security Trustee must if
directed by the Majority Debenture Holders:
(a) determine the appropriate action to be taken to remedy the
default or recover the amounts secured by that Security;
(b) account and distribute the Recovered Money in accordance with
this deed.
5.8 BENEFIT OF BENEFICIARIES
All rights, powers and remedies exercisable by the Security Trustee
under a Security must be exercised for the benefit and advantage of
the Beneficiaries except the Security Trustee may in its absolute
discretion, despite any other provision in any Transaction Document,
exercise or enforce any of its rights or remedies against, or take,
commence or continue any suit, action or other proceedings against,
a Group Party in respect of the Parent's obligations to pay fees and
expenses to the Security Trustee (including fees payable under
clause 10.7).
5.9 MARSHALLING
The Security Trustee need not resort to any Security Interest it
holds for the payment of amounts secured under a Security held by it
before the Security Trustee resorts to any other Security Interest
it holds for the payment of the same amounts.
5.10 TREATMENT OF AMOUNTS REPRESENTING CONTINGENCIES
If the Security Trustee receives an amount as part of its
entitlement under this deed on account of an amount contingently
owing or which may reasonably be foreseen to become owing and it
transpires by the time when any right to make a claim in respect of
such an amount has expired that no such claim has been made, then
the Security Trustee must if directed by the Majority Debenture
Holders as soon as practicable pay an amount equivalent to such
amount to any Beneficiary which has an entitlement for payment under
this deed in the following order of payment priority:
(a) firstly, Priority 1 Beneficiaries;
(b) secondly, Priority 2 Beneficiaries;
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(c) thirdly, Priority 3 Beneficiaries; and
(d) fourthly, Priority 4 Beneficiaries,
6 CREATION AND ISSUE OF DEBENTURES AND DECLARATION OF TRUST
6.1 ISSUE OF DEBENTURES
(a) The Borrowers may at any time create and issue Bridge Term
Debentures to any person in accordance with the Bridge Term
Facility Agreement and this deed.
(b) The Borrowers may at any time create and issue Term Debentures
to any person in accordance with the Term A Facility Agreement
and this deed.
(c) The Borrowers may at any time create and issue Revolving
Debentures to any person in accordance with the Revolving
Facility Agreement and this deed.
(d) The US Debenture Issuer may at any time create and issue US
Debentures to any person in accordance with the US
Subscription Agreement and this deed.
(e) The Term B2 Debenture Issuer may at any time create and issue
Term B2 Debentures to any person in accordance with the Term
B2 Subscription Agreement and this deed.
(f) Without limiting clauses 6.1 (a), (b), (c), (d) or (e),
Debentures may be issued to the Security Trustee in its
personal capacity despite the fact that it enters into this
deed as trustee for the Debenture Holders and other
Beneficiaries.
(g) Except for Debentures issued in accordance with clauses
6.1(a), (b), (c), (d) or (e), Debentures can only be issued:
(1) to a Debenture Stockholder (as defined in the Security
Trust Deed) pursuant to a Transaction Document (as
defined in the Security Trust Deed); or
(2) to any other person where the Debenture is to be
provided as security to or for the benefit (directly or
indirectly) of a Debenture Stockholder (as defined in
the Security Trust Deed) in respect of a Transaction
Document (as defined in the Security Trust Deed); or
(3) with the consent of the Security Trustee (acting upon
the instructions of the Majority Debenture Holders).
(h) No Debenture Holder is entitled to enforce a Security against
a Group Party other than through the Security Trustee.
(i) By subscribing for Debentures a Debenture Holder covenants to
be bound by and subject to all the provisions of this deed and
the relevant Master Debenture which relates to or affect the
rights and obligations of a Debenture Holder.
(j) No Debenture Holder is responsible for the obligations of the
Security Trustee or any other Debenture Holder.
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(k) Subject to this deed and the other Transaction Documents, the
issue of Debentures to any Debenture Holder confers on that
Debenture Holder the benefits of all covenants, warranties and
indemnities given by the Group Parties in favour of, or for
the benefit of, the Debenture Holders under this deed and the
Securities.
6.2 PLACE FOR SUBSCRIPTION
Each Debenture Holder must subscribe for and pay up all amounts in
respect of Debentures in the Australian Capital Territory or in the
United States of America or such other place outside Australia as
agreed between the Security Trustee and the Borrowers.
6.3 CONDITIONS OF ISSUE OF DEBENTURES
(a) Whenever a Borrower proposes to issue any Debentures it must
notify the Security Trustee of the proposed Debenture Holder.
(b) Following the issue of Debentures, the Borrower must notify
the Security Trustee of the name of the Borrower, the Face
Value Amount of the Debentures issued, the name of the
relevant Debenture Holder, the currency and amount of the Paid
Up Amount of each Debenture and any other details or
information about the Debentures issued and the relevant
Debenture Holder which is described in clause 6.6.
(c) Promptly following any change in the Face Value Amount or Paid
Up Amount of any Debenture the Borrowers must notify the
Security Trustee of the amount of the change in the Face Value
Amount or Paid Up Amount and the new Face Value Amount or Paid
Up Amount.
6.4 CANCELLATION
(a) A Debenture of a Debenture Holder cannot be cancelled or
redeemed unless:
(1) all of the Beneficiary's Debt of that Debenture Holder
has been fully and finally repaid and satisfied; or
(2) that Debenture Holder consents to the cancellation or
redemption of that Debenture.
(b) The Borrowers must immediately cancel any Debenture which they
redeem and must notify the Security Trustee of the
cancellation within 5 Business Days.
6.5 ANNUAL RETURN
Each Borrower will comply with each undertaking given by it in
relation to the lodging of returns or statements as to the issue of
Debentures under this deed, including its undertaking provided to
the New South Wales Office of State Revenue under section 226 of the
Duties Act 1997 (NSW) and to the Victorian State Revenue Office
under section 172 of the Duties Act 2000 (Vic).
6.6 REGISTER OF DEBENTURE HOLDERS
(a) The Security Trustee must keep, or cause to be kept, a
Register of Debentures. The Register shall be maintained in
Canberra or such other place outside Australia as the Security
Trustee approves. The Security
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Trustee shall inscribe, or cause to be inscribed, in that
Register (to the extent that it has been notified of the
relevant information):
(1) the names and addresses of the persons to whom
Debentures have been issued or transferred from time to
time;
(2) the place where the person to whom a Debenture was
initially issued subscribed for that Debenture;
(3) the date at which the name of each person was entered in
the Register as a Debenture Holder;
(4) the date at which any Debenture Holder ceased to hold
any Debenture;
(5) the date of any issue of Debentures to Debenture
Holders;
(6) for each Debenture, whether it is a Bridge Term
Debenture, Term Debenture, a Revolving Debenture, a US
Debenture, a Term B2 Debenture or a Further Debenture;
(7) for each Debenture Holder, the currency and amount of
the Face Value Amount of the Debentures issued to it, as
varied from time to time;
(8) for each Debenture Holder, the Borrower or Borrowers,
currency, and amount of the Paid Up Amount of the
Debentures, as varied from time to time;
(9) for each Debenture Holder, where the Paid Up Amount of
the Debenture is in a currency which is different from
the currency of the Face Value Amount of that Debenture,
the Equivalent Amount in respect of that Debenture;
(10) the issue date and maturity date of each Debenture; and
(11) any other information in relation to the Debentures of a
Debenture Holder which the Security Trustee considers
appropriate to record on the Register, or which the
Borrowers or that Debenture Holder reasonably requires
the Security Trustee to record in the Register.
(b) The Security Trustee undertakes to carry out all of its duties
and functions, and to comply with obligations, (including,
without limitation, in relation to the transfer, redemption,
cancellation and issue of Debentures, and the maintenance and
updating of the Register) as contemplated by each Master
Debenture, each Subscription Agreement and each of the other
Transaction Documents.
6.7 CONCLUSIVENESS OF REGISTER
(a) Subject to clauses 6.7(a)(2) and 6.8(b):
(1) the Register is conclusive as to the identity of
Debenture Holders and prevails in the event of any
inconsistency with any register kept by a Borrower or
any other person;
(2) a person whose name is entered on the Register as the
holder of Debentures will remain a Debenture Holder for
the purposes of this
24
deed until removal of that name by the Security Trustee
with the consent of the Debenture Holder regardless of
whether or not:
(A) the Debentures are or prove to have been void or
invalid or were improperly issued; and
(B) the Debentures have been redeemed, repaid or
cancelled;
(3) the Debenture Holders whose names appear for the time
being in the Register are to be regarded as the
beneficial owners of the Debentures which are registered
in their respective names. Except as required by law, in
respect of any Debenture issued as contemplated by
clause 2.6(b) or as otherwise specified by the Parent,
each of the Security Trustee and each Borrower must not
recognise (even when having notice) any other interests
in any Debentures;
(4) the Register, in the absence of manifest error, will be
conclusive as to the Paid Up Amount and the Face Value
Amount of each Debenture and as to whether the Debenture
is a Bridge Term Debenture, Term Debenture, Revolving
Debenture, US Debenture or Term B2 Debenture or Further
Debenture.
(b) Any Debenture issued or held in contravention of this deed is
of no force or effect even if its details are entered in the
Register.
6.8 TRANSFERS OF DEBENTURES
(a) Each Debenture is issued on the conditions that:
(1) it may not be assigned, transferred or in any manner
negotiated in Victoria;
(2) it may not be transferred to a person incorporated or
resident in Victoria; and
(3) it may only be transferred to a person to whom the
relevant Subscription Agreement permits a transfer of
that Debenture (other than a person incorporated or
resident in Victoria),
provided any such transfer is effected in compliance with any
other applicable provision of the Transaction Documents.
(b) Notwithstanding clause 6.8(a), a Debenture may be disposed of
or dealt with in accordance with Condition 5 of the Master
Debenture under which the relevant Debenture is issued.
(c) Any transfer of Debentures in breach of clause 6.8(a) or (b)
is of no force or effect even if its details are entered in
the Register.
(d) The Security Trustee must register the transfer of a Debenture
made in accordance with this deed and the relevant
Subscription Agreement.
6.9 MASTER DEBENTURE
(a) The relevant Borrowers must issue for the benefit of each
Bridge Term Debenture Holder a Bridge Term Master Debenture in
respect of the Bridge Term Debentures.
25
(b) The relevant Borrowers must issue for the benefit of each Term
Debenture Holder a Term Master Debenture in respect of the
Term Debentures.
(c) The relevant Borrowers must issue for the benefit of each
Revolving Debenture Holder a Revolving Master Debenture in
respect of the Revolving Debentures.
(d) The US Debenture Issuer must issue for the benefit of each US
Debenture Holder a US Master Debenture in respect of the US
Debentures.
(e) The Term B2 Debenture Issuer must issue for the benefit of
each Term B2 Debenture Holder a Term B2 Master Debenture in
respect of the Term B2 Debentures.
(f) The relevant Borrower must issue for the benefit of the
relevant Debenture Holder a Master Debenture in substantially
the form of schedule 5 in respect of any Debenture (other than
a Bridge Term Debenture, Term Debenture, Revolving Debenture,
US Debenture or Term B2 Debenture) issued under clause 6.1(g).
(g) Each Master Debenture must be executed by the Borrowers under
their common seal or by the signature of its duly authorised
attorney and delivered to the Security Trustee or as otherwise
provided in the relevant Subscription Agreement.
6.10 REGISTER AVAILABLE FOR INSPECTION
The Security Trustee must ensure that the Register is open for
inspection by the Debenture Holders during normal business hours and
must keep the Debenture Holders informed as to the location of the
Register.
7 ACKNOWLEDGMENT OF INDEBTEDNESS
7.1 STATUS OF DEBENTURE
Each Borrower acknowledges that each Debenture constitutes a
separate direct, unconditional and unsubordinated indebtedness of
the Borrower to the relevant Debenture Holder.
7.2 UNDERTAKING TO PAY
Each Borrower unconditionally and irrevocably undertakes to the
Security Trustee for the benefit of each Debenture Holder to:
(a) pay to each Debenture Holder, in accordance with each Master
Debenture and the relevant Subscription Agreement all
principal, interest and other amounts owing represented by
that Master Debenture; and
(b) perform all of its other obligations in respect of each Master
Debenture in accordance with its terms and the terms of the
relevant Subscription Agreement,
provided that, following notice being given by the Security Trustee
acting on the instructions of the Majority Debenture Holders
following a Security becoming enforceable, all payments of the above
amounts will be made to the Security Trustee for the account of the
Debenture Holders.
26
8 DETERMINATION OF BENEFICIARY'S DEBT
8.1 DETAILS OF BENEFICIARY'S DEBT
(a) The Security Trustee may at any time request a Beneficiary to
provide, whereupon the Beneficiary must within a reasonable
time provide:
(1) a statement signed by an authorised officer of the
Beneficiary (STATEMENT) setting out the Beneficiary's
Debt of that Beneficiary at the date of the Statement or
as at any other date requested by the Security Trustee;
(2) such information as the Security Trustee may reasonably
request in respect of the calculation of the amounts
referred to in clause 8.1(a)(1).
(b) The information provided under clause 8.1(a) must include full
details of how the Beneficiary has calculated the amounts
referred to in clause 8.1(a)(1).
(c) As between the Security Trustee and the Beneficiaries, the
Security Trustee may rely on a Statement as sufficient
evidence, unless the contrary is proved, of its contents and
the respective amounts of Beneficiary Debt owing to the
Beneficiary as at the date set out in the Statement.
9 NOTICES
9.1 NOTICES
A notice, approval, consent or other communication in connection
with this deed:
(a) may be given by an Authorised Officer of the relevant party;
and
(b) must be in writing; and
(c) must be left at the address of the addressee or sent by
prepaid ordinary post (airmail if posted to or from a place
outside Australia) to the address of the addressee or sent by
facsimile to the facsimile number of the addressee which is
specified in schedule 2 or if the addressee notifies another
address or facsimile number then to that address or facsimile
number.
9.2 NOTICE TAKES EFFECT
Unless a later time is specified in it a notice, approval, consent
or other communication takes effect from the time it is received.
9.3 TAKEN TO BE RECEIVED
A letter or facsimile is taken to be received:
(a) in the case of a posted letter, on the third (seventh, if
posted to or from a place outside Australia) day after
posting; and
(b) in the case of a facsimile, on production of a transmission
report by the machine from which the facsimile was sent which
indicates that the facsimile was sent in its entirety to the
facsimile number of the recipient notified for the purpose of
this clause.
27
10 MISCELLANEOUS
10.1 CERTIFICATE
A certificate signed by a Beneficiary about a matter (including,
without limitation, an applicable rate of interest) or about a sum
payable to the Beneficiary in connection with this deed is
sufficient evidence of the matter or sum stated in the certificate
unless the matter or sum is proved to be false and the Security
Trustee may rely on such a certificate without making further
enquiry by the Parent or the Security Trustee.
10.2 WAIVER AND VARIATION
A provision of or a right created under this deed may not be waived
or varied except in writing signed by the party or parties to be
bound.
10.3 EXCLUSION OF MORATORIUM
To the extent not excluded by law, a provision of any legislation
which at any time directly or indirectly:
(a) lessens or otherwise varies or affects in favour of a Group
Party any obligations under this deed or any Transaction
Document; or
(b) stays, postpones or otherwise prevents or prejudicially
affects the exercise by the Security Trustee or any
Beneficiary or any Receiver of any Power,
is negatived and excluded from this deed and all relief and
protection conferred on the Security Trustee or any Beneficiary or
Receiver by or under that legislation is also negatived and
excluded.
10.4 TIME OF THE ESSENCE
Time is of the essence of this deed in respect of an obligation of
the Parent or a Borrower to pay money.
10.5 FURTHER ASSURANCES
At the Security Trustee's request the Parent and each Borrower must,
at the Parent's expense:
(a) execute any Further Assurance and do everything necessary or
appropriate to bind it under and to give effect to, this deed;
and
(b) use its best endeavours to cause relevant third parties to do
likewise.
10.6 INCONSISTENCY IN REMEDIES
If there is an inconsistency between the rights, powers and remedies
provided in this deed and the rights, powers and remedies provided
by law independently of this deed, then the rights, powers and
remedies provided in this deed prevail. Otherwise, the rights,
powers and remedies provided in this deed are cumulative with and
not exclusive of the rights, powers and remedies provided by law
independently of this deed.
10.7 SECURITY TRUSTEE FEES
The Parent agrees to pay to the Security Trustee from time to time
such fees, expenses and compensation for all services rendered by it
under the Transaction
28
Documents in such amounts as shall have been agreed upon in writing
by the Parent and the Security Trustee from time to time.
10.8 NO MERGER OF SECURITY
(a) Nothing in this deed merges, extinguishes, postpones, lessens
or otherwise prejudicially affects:
(1) any Security Interest in favour of the Security Trustee
or any Beneficiary at any time;
(2) any indemnity in favour of the Security Trustee or any
Beneficiary contained in any Transaction Document; or
(3) any right, power, authority, discretion or remedy which
the Security Trustee or any Beneficiary may have against
a Group Party or any other person at any time.
(b) No other Security Interest or Transaction Document held by the
Security Trustee or any Beneficiary in any way prejudicially
affects any right, power, authority, discretion or remedy of
the Security Trustee or any Beneficiary under this deed.
10.9 PRINCIPAL OBLIGATIONS
This deed is:
(a) a principal obligation and is not ancillary or collateral to
any other Security Interest or other obligation however
created; and
(b) independent of, and unaffected by any other Security Interest
or other obligation however created which the Security Trustee
or any Beneficiary may hold at any time in respect of the
Beneficiaries' Debt.
10.10 CONTINUING INDEMNITIES
(a) Each indemnity contained in this deed, is a continuing
obligation despite:
(1) any settlement of account; or
(2) the occurrence of any other thing,
and remains in full force and effect until:
(3) the Beneficiary's Debt of all Beneficiaries have been
paid or satisfied in full; and
(4) each Transaction Document has been finally discharged.
(b) Each indemnity in this deed, is an additional, separate and
independent obligation and no one indemnity limits the
generality of any other indemnity.
29
10.11 NON-AVOIDANCE
The provisions of this deed are not affected by anything which, but
for this provision, might have that effect, including:
(a) the respective times and dates upon which, or the order in
which, any of the Transaction Documents were executed,
delivered or registered;
(b) the respective times and dates upon which, or the order in
which, the debts and monetary liabilities comprising all or
any part of any of the Beneficiaries' Debts are incurred or
become due;
(c) the enforcement or attempted enforcement of, or the exercise
or attempted exercise of any other Power under, any of the
Transaction Documents;
(d) the repayment from time to time of all or any part of any of
the Beneficiaries' Debts;
(e) the fluctuation (including the reduction and subsequent
increase) from time to time of all or any part of any of the
Beneficiaries' Debts;
(f) a Beneficiary being or not being from time to time obliged to:
(1) perform its obligations under any Transaction Document
at the request of, or for the benefit of any Group
Party;
(2) do anything which may cause moneys to become due by any
Group Party to that Beneficiary;
(g) that all or any part of the Beneficiaries' Debt are contingent
or prospective;
(h) the appointment of a liquidator, Controller, trustee in
bankruptcy or other similar officer to a Group Party or to all
or any part of the assets of a Group Party;
(i) the liquidation or bankruptcy of a Group Party;
(j) a person becoming or ceasing to be a Beneficiary or a Group
Party; or
(k) any provision of any statute or any rule of law or equity to
the contrary.
10.12 CUMULATIVE RIGHTS
The Powers are cumulative and do not exclude any other right, power,
authority, discretion or remedy of the Security Trustee or any
Controller.
10.13 ASSIGNMENTS
(a) A Debenture Holder may assign its rights under this deed to a
permitted transferee of its Debenture in accordance with
clause 6.8 but not otherwise.
(b) The Parent or a Borrower may only assign or transfer any of
its rights or obligations under this deed with the prior
written consent of the Security Trustee.
10.14 LIABILITY FOR TAXES AND EXPENSES
The Parent must indemnify the Security Trustee against, and must pay the
Security Trustee on demand the amount of, all Taxes (other than Excluded
Taxes) and reasonable expenses incurred in connection with:
30
(a) the negotiation, preparation, execution, stamping and registration
of each Transaction Document to which it is party;
(b) the transactions that each Transaction Document to which it is a
party contemplates; and
(c) any amendment to, or any consent, approval, waiver, release or
discharge of or under, any Transaction Document to which it is a
party, including legal expenses in all applicable jurisdictions on a
full indemnity basis, travel costs, printing, telecommunications,
stamp duties and other out-of-pocket expenses, and expenses incurred
in engaging consultants.
11 GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS
11.1 GOVERNING LAW
This deed is governed by the law in force in the Australian Capital
Territory.
11.2 SUBMISSION TO JURISDICTION
Each party irrevocably and unconditionally submits to the
non-exclusive jurisdiction of the courts of the Australian Capital
Territory and courts of appeal from them. Each party waives any
right it has to object to an action being brought in those courts
including, without limitation, by claiming that the action has been
brought in an inconvenient forum or that those courts do not have
jurisdiction.
11.3 SERVICE OF PROCESS
Without preventing any other mode of service, any document in an
action (including, without limitation, any writ of summons or other
originating process or any third or other party notice) may be
served on any party by being delivered to or left for that party at
its address for service of notices under clause 6.
12 COUNTERPARTS
12.1 COUNTERPARTS
This deed may consist of a number of counterparts and the
counterparts taken together constitute one and the same instrument.
31
SCHEDULE 1 - INITIAL BORROWERS
JURISDICTION OF
NAME OF INITIAL BORROWER ADDRESS INCORPORATION
------------------------ ------- ---------------
Burns Philp Treasury (Australia) Limited ACN 003 Level 23 Australia
731 986 56 Pitt Street
SYDNEY NSW 2000
AUSTRALIA
Burns Philp Deutschland GmbH Wandsbeker Zollstrasse 59 Germany
(Reg. No. HRB 65911) 22041 HAMBURG
GERMANY
Burns Philp Inc. (Fed 10#22-272392) c/- The Corporation Trust Company United States of America
County of New Castle
1209 Orange Street
WILMINGTON DE 19801
UNITED STATES OF AMERICA
Burns Philp (New Zealand) Limited (AK 112484) 54 Ponsonby Road New Zealand
AUCKLAND
NEW ZEALAND
Burns Philp Food Limited 31 Arlie Street Canada
Lasalle
QUEBEC H8R1Z8
CANADA
BPC1 Pty Limited ACN 101 665 918 Level 23 Australia
56 Pitt Street
SYDNEY NSW 2000
AUSTRALIA
s BPCUS1 Inc. c/- The Corporation Trust Company United States of America
County of New Castle
1209 Orange Street
WILMINGTON DE 19801
UNITED STATES OF AMERICA
32
SCHEDULE 2 - NOTICES
PARENT AND BORROWERS
Address: Level 23
56 Pitt Street
Sydney NSW 2000
Facsimile Number: 612 9247 3272
SECURITY TRUSTEE
Address: Level 32
Grosvenor Place
225 George Street
Sydney NSW 2000
Facsimile Number: 612 9247 4913
33
SCHEDULE 3 - NOMINATION OF TRANSACTION DOCUMENTS
To: The Security Trustee
From: Burns, Philp & Company Limited
NOMINATION OF [BENEFICIARY/TRANSACTION DOCUMENT]
We refer to clause [2.5] of the Deed of Debenture Trust dated [ ] 2003 between
us. We nominate:
(a) [[ ] as a Beneficiary under the Deed of Debenture Trust;]
(b) the document described in the Schedule below (a copy or written
description of which is attached to this notice), as amended,
supplemented, replaced or novated from time to time, as a Priority [
] Transaction Document for the purposes of the definition of
TRANSACTION DOCUMENT in the Deed of Debenture Trust.
Please acknowledge receipt of this nomination by signing and returning the
attached copy of this notice.
SCHEDULE
[Describe document nominated as a Transaction Document].
Signed for and on behalf of Burns, Philp & Company Limited
34
SCHEDULE 4 - FORM OF CO-TRUSTEE ACCESSION DEED
THIS DEED POLL is made on [ ] 20[ ] by [ ] of [ ] ("CO-TRUSTEE").
RECITALS
A. Under a deed entitled "Deed of Debenture Trust" dated [
] between Burns, Philp & Company Limited, the entities
listed in schedule 1 to that deed and J.P. Morgan
Australia Limited ("DEBENTURE TRUST DEED") a person may
become a Security Trustee by execution of a deed in the
form of this deed.
B. The Co-Trustee wants to become a Security Trustee under
the Security Trust Deed.
THIS DEED POLL WITNESSES as follows:
1. INTERPRETATION
1.1 Terms and expressions defined in the Debenture Trust Deed have
the same meaning as in this deed poll.
1.2 The following words have these meanings in this deed poll,
unless the contrary intention appears:
"EXISTING SECURITY TRUSTEE" means the Security Trustee
which is a signatory (or has otherwise become a party)
to the Debenture Trust Deed and has not been released
from that document.
2. RIGHTS AND OBLIGATIONS OF TRUSTEE
For valuable consideration including, among other things the
payment by the Security Trustee to the Co-Trustee of $10.00
(receipt of which is acknowledged), the Co-Trustee severally
with the Security Trustee irrevocably and unconditionally
agrees to be bound by the terms and conditions of the
Debenture Trust Deed subject to clause 3.3.
3. STATUS OF TRUSTEE
3.1 Subject to clause 3.3 the Co-Trustee irrevocably
acknowledges and confirms that it becomes a "SECURITY
TRUSTEE" as defined in, and for all purposes under, the
Debenture Trust Deed as if named in and as a party to
the Debenture Trust Deed from [the date of this
deed/[date]], and accordingly is bound by the Debenture
Trust Deed as a Security Trustee on and from that date.
3.2 Subject to clause 3.3 the Co-Trustee acknowledges that,
unless otherwise agreed by the Security Trustee and any
other co-trustee, it shall, without limitation, be
severally liable (and will not be indemnified by the
Security Trustee or any other co-trustee) under and in
connection with this deed.
3.3 [Insert any limitations, restrictions or other
specification of the co-trustee's rights and obligations
under the Debenture Trust Deed, as determined by
considerations specific to non-Australian
jurisdictions.]
35
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 Parent, the Borrowers, the Security Trustee and the
Beneficiaries, the Existing Security Trustee, and persons
claiming through the Parent, the Borrowers, the Security
Trustee, the Beneficiaries or an Existing Security Trustee and
their respective successors and permitted assigns.
EXECUTED as a deed poll.
36
SCHEDULE 5 - FORM OF MASTER DEBENTURE
[BRIDGE TERM/ TERM/REVOLVING/US/ TERM B2/FURTHER MASTER DEBENTURE] (MASTER
DEBENTURE)
Serial Number [ ]
[ ] (the BORROWERS)
Name Address and
Account Details
for each Debenture Name of
Holder Borrower Issue Date Face Value Amount Paid Up Amount Maturity Date
- ------ -------- ---------- ----------------- -------------- -------------
As recorded on the [*] [*] In respect of each In respect of each (a) In respect
Register Debenture issued in Debenture issued of each
relation to this in relation to Debenture
Master Debenture, this Master issued in
the Face Value Debenture, the relation to
Amount for that Paid Up Amount for this Master
Debenture as that Debenture as Debenture,
recorded on the recorded in the the Maturity
Register Register Date for
that
Debenture as
recorded in
the Register; or
(b) such other
date on
which the
Paid Up
Amount is
payable in
accordance
with the
Facility
Agreement.
THIS MASTER DEBENTURE is constituted by the Deed of Debenture Trust (the
DEBENTURE TRUST DEED) dated [*] between Burns, Philp & Company Limited, the
Initial Borrowers listed in schedule 1 to that deed and J.P. Morgan Australia
Limited (the SECURITY TRUSTEE)]. It is issued with the benefit of and subject to
the Debenture Trust Deed, the [Bridge Term Facility Agreement/Term A Facility
Agreement/Revolving Facility Agreement/US Subscription Agreement/Term B2
Subscription Agreement/Further Subscription Agreement] dated [**] between [ ]
(FACILITY AGREEMENT) and the conditions endorsed on this Master Debenture.
THIS IS TO CERTIFY that:
(a) each person whose name and address is recorded in the Register as the
registered holder of a [Bridge Term/Term/Revolving/US/Term B2/Further]
Debenture subscribed for under the Facility Agreement is a Debenture
Holder for the purposes of this Master Debenture (a DEBENTURE HOLDER);
(b) each [Bridge Term/Term/Revolving/US/Term B2/Further] Debenture
subscribed for under the Facility Agreement is a Debenture for the
purposes of this Master Debenture (a DEBENTURE);
37
(c) this Master Debenture evidences at any time the indebtedness of each
Borrower to each Debenture Holder in respect of the Paid Up Amount of
each Debenture issued by that Borrower and held by that Debenture
Holder at that time;
(d) each Borrower promises (subject to clause 7.2 of the Debenture Trust
Deed) to pay to each Debenture Holder the aggregate of all Paid-Up
Amounts of each Debenture issued by that Borrower and held by that
Debenture Holder (together with interest and other amounts) at the
times and in the amounts and calculated as provided in the Facility
Agreement and any other relevant Transaction Documents;
(e) the Borrower shall make all payments in relation this Master Debenture
in immediately available funds without set-off or counterclaim;
(f) subject to clause [ ] of the [Bridge Senior Funding Agreement/TLA
Senior Funding Agreement/Facility Agreement], Debentures of a Debenture
Holder may be assigned or transferred in whole or in part without the
consent of the Security Trustee;
(g) each Borrower incurs obligations under this Master Debenture in
consideration of each Debenture Holder subscribing for or accepting a
novation or transfer of Debentures;
(h) terms defined in the Debenture Trust Deed and the Facility Agreement
have the same meaning when used in this Master Debenture, unless
otherwise defined; and
(i) this Master Debenture is subject to the following conditions.
CONDITIONS
1 TRANSFER
(a) A Debenture Holder may, subject to clause [ ] of the [Bridge
Senior Funding Agreement/TLA Senior Funding Agreement/Facility
Agreement], transfer all or part of its Debentures provided
the transferee is not incorporated or resident in Victoria, by
an instrument of transfer.
(b) Each transfer by a Debenture Holder of all or part of its
Debentures must be carried out in accordance with clause 6.8
of the Debenture Trust Deed and clause [ ] of the [Bridge
Senior Funding Agreement/TLA Senior Funding Agreement/Facility
Agreement].
2 BOTH PARTIES TO SIGN TRANSFER
Every instrument of transfer must be signed by the Security Trustee,
the transferor and transferee in New South Wales, the Australian
Capital Territory or otherwise outside Victoria. The transferor is
taken to remain the Debenture Holder of the relevant Debentures to
which the transfer relates until the name of the transferee is entered
in the Register in respect of those Debentures.
3 REGISTRATION REQUIREMENTS FOR TRANSFERS
(a) Every instrument of transfer must be:
(1) delivered to the place of the Register for
registration; and
(2) accompanied by any evidence reasonably required
by the Borrowers to prove the title of the transferor
or his right to transfer the relevant Debentures.
38
(b) If the Security Trustee and the Borrowers are satisfied that a
transfer complies with paragraph (a):
(1) in the case of transfer of all the transferor's
Debentures the Security Trustee will substitute the
transferee's name for the transferor's name in the
Register as Debenture Holder entitled to the
Debentures compromised in the transfer;
(2) in the case of a partial transfer of the transferor's
Debentures, the Security Trustee will update the
Register with the transferor's new Debenture
entitlement and the transferee's remaining Debenture
entitlement and it will record in the Register the
transferee's name as the Debenture Holder entitled to
the Debentures compromised in the transfer.
(c) Subject to the Debenture Trust Deed, the contents of the
Register is conclusive as to the identity of Debenture
Holders.
4 RETENTION OF TRANSFERS
The Borrowers shall retain all instruments of transfer which are
registered for a period of 7 years (either in their original form or in
a micro-film copy) after receipt.
5 VICTORIAN PURCHASER
If a Debenture Holder (DISPOSING DEBENTURE HOLDER) wants to dispose of
all or part of its Debentures to a person who is incorporated or
resident in Victoria (VICTORIAN DEBENTURE HOLDER) the following
provisions will apply:
(a) the Debenture Holder will notify the Security Trustee and the
Borrowers of the Debentures being disposed of;
(b) the disposal must be effected by way of novation or
substitution in accordance with the [Bridge Senior Funding
Agreement/TLA Senior Funding Agreement/Facility Agreement];
(c) the Debenture Holder will deliver the relevant novation or
substitution documentation in accordance with the [Bridge
Senior Funding Agreement/TLA Senior Funding Agreement/Facility
Agreement] for the relevant Debentures and the relevant
commitment of the Debenture Holder to the Security Trustee;
and
(d) simultaneously with delivery of the relevant novation or
substitution documentation under paragraph 5(c), the Security
Trustee will amend the Register to reflect the revised
entitlements to Debentures of the Disposing Debenture Holder
and the Victorian Debenture Holder based on the commitment of
the Disposing Debenture Holder which is novated to the
Victorian Debenture Holder in accordance with the relevant
novation or substitution documentation.
6 REPLACEMENT CERTIFICATE
(a) If this Master Debenture is worn out or defaced then on its
production to the Borrowers, the Borrowers may cancel it and
may issue a new Master Debenture in its place.
(b) If:
(1) this Master Debenture is lost or if the Borrowers do
not receive satisfactory proof of destruction of this
Master Debenture; and
39
(2) the Borrowers receive an undertaking and/or security
on terms as to evidence and indemnity and the payment
of out-of-pocket expenses of the Borrowers in
investigating evidence as the Borrowers require,
the Borrowers shall issue a new Master Debenture.
(c) An entry as to the issue of the new Master Debenture and
indemnity (if any) shall be made in the Register. The new
Master Debenture shall indicate that it is issued as a
replacement certificate.
7 REDEMPTION
(a) Any money paid by a Borrower to a Debenture Holder under or in
connection with this Master Debenture will be applied in
reduction of the Beneficiary's Debt owing to that Debenture
Holder which is secured by this Master Debenture.
(b) The Borrowers shall not redeem this Master Debenture unless
and until all Beneficiary's Debt owing to each of the
Debenture Holders has been paid in full or the Debenture
Holders otherwise agree.
9 GOVERNING LAW AND JURISDICTION
(a) This Master Debenture is governed by the laws of New South
Wales.
(c) Each Borrower irrevocably submits to the non-exclusive
jurisdiction of the courts of New South Wales.
(d) Each Borrower irrevocably waives any objection to the venue of
any legal process on the basis that the process has been
brought in an inconvenient forum.
(e) Each Borrower irrevocably waives any immunity in respect of
its obligations under this deed that it may acquire from the
jurisdiction of any court or any legal process for any reason
including the service of notice, attachment before judgment,
attachment in aid of execution or execution.
[Note - If preparing US or Term B2 Master Debenture, delete clause 9
above, and insert as a new clause 9:
"This Master Debenture, and all Debentures issued hereunder, shall be
governed by the law of the State of New York, and each Debenture issued
hereunder shall constitute a security governed by Article 8 of the
Uniform Commercial Code of the State of New York ("UCC"). The
undersigned Borrower hereby specifies the law of the State of New York
as the law governing the matters specified in Sections 8-110(a)(2)
through (5) of the UCC, with the intent that New York constitute the
"issuer's jurisdiction," as specified in Section 8-110(d) of the UCC,
with respect to the undersigned Borrower for purposes of Article 8 and
Article 9 of the UCC."]
EXECUTED and delivered as a Deed Poll.
40
DATED THIS DAY OF 2003
BORROWERS
SIGNED, SEALED AND DELIVERED
for
[ ]
under power of attorney dated [ ]
by:
- ------------------------
Signature of attorney
- ------------------------
Name of attorney
and witnessed by:
- ------------------------
Signature of witness
- ------------------------
Name of witness
- ------------------------
Occupation
- ------------------------
City/town of residence
41
EXECUTION PAGE
SIGNED, SEALED AND DELIVERED by Helen Golding
as attorney for BURNS, PHILP & COMPANY LIMITED
under power of attorney dated 20 February 2003
in the presence of:
/s/ Elizabeth Vuong
------------------------
Signature of witness
/s/ Helen Golding
------------------------------------
By executing this deed the attorney
Elizabeth Vuong states that the attorney has
------------------------ received no notice of revocation
Name of witness (block letters) of the power of attorney
SIGNED, SEALED AND
DELIVERED by Helen Golding
as attorney for BURNS PHILP TREASURY
(AUSTRALIA) LIMITED under power of attorney
dated 20 February 2003
in the presence of:
/s/ Elizabeth Vuong
------------------------
Signature of witness
/s/ Helen Golding
------------------------------------
By executing this deed the attorney
Elizabeth Vuong states that the attorney has
------------------------ received no notice of revocation
Name of witness (block letters) of the power of attorney
42
SIGNED, SEALED AND DELIVERED by Helen Golding
as attorney for BURNS PHILP
DEUTSCHLAND GMBH under
power of attorney dated 19 February 2003
in the presence of:
/s/ Elizabeth Vuong
------------------------
Signature of witness
/s/ Helen Golding
------------------------------------
By executing this deed the attorney
Elizabeth Vuong states that the attorney has
------------------------ received no notice of revocation
Name of witness (block letters) of the power of attorney
SIGNED, SEALED AND DELIVERED by Helen Golding
as attorney for BURNS PHILP INC
under power of attorney dated 20 February 2003
in the presence of:
/s/ Elizabeth Vuong
------------------------
Signature of witness
/s/ Helen Golding
------------------------------------
By executing this deed the attorney
Elizabeth Vuong states that the attorney has
------------------------ received no notice of revocation
Name of witness (block letters) of the power of attorney
43
SIGNED, SEALED AND DELIVERED by Helen Golding
as attorney for BURNS PHILP
(NEW ZEALAND) LIMITED
under power of attorney dated 20 February 2003
in the presence of:
/s/ Elizabeth Vuong
------------------------
Signature of witness
/s/ Helen Golding
------------------------------------
By executing this deed the attorney
Elizabeth Vuong states that the attorney has
------------------------ received no notice of revocation
Name of witness (block letters) of the power of attorney
SIGNED, SEALED AND DELIVERED by Helen Golding
as attorney for BURNS PHILP
FOOD LIMITED under power of
attorney dated 20 February 2003
in the presence of:
/s/ Elizabeth Vuong
------------------------
Signature of witness
/s/ Helen Golding
------------------------------------
By executing this deed the attorney
Elizabeth Vuong states that the attorney has
------------------------ received no notice of revocation
Name of witness (block letters) of the power of attorney
44
SIGNED, SEALED AND DELIVERED by Helen Golding
as attorney for BPC1 PTY
LIMITED under power
of attorney dated 20 February 2003
in the presence of:
/s/ Elizabeth Vuong
------------------------
Signature of witness
/s/ Helen Golding
------------------------------------
By executing this deed the attorney
Elizabeth Vuong states that the attorney has
------------------------ received no notice of revocation
Name of witness (block letters) of the power of attorney
SIGNED, SEALED AND DELIVERED by Helen Golding
as attorney for BPCUS1 INC under
power of attorney dated 20 February 2003
in the presence of:
/s/ Elizabeth Vuong
------------------------
Signature of witness
/s/ Helen Golding
------------------------------------
By executing this deed the attorney
Elizabeth Vuong states that the attorney has
------------------------ received no notice of revocation
Name of witness (block letters) of the power of attorney
45
SIGNED, SEALED AND DELIVERED by Paul Roffey
as attorney J.P. MORGAN
AUSTRALIA LIMITED under
power of attorney dated 28 October 1998
in the presence of:
/s/ Margaret Luby
------------------------
Signature of witness
/s/ Paul Roffey
------------------------------------
By executing this deed the attorney
Margaret Luby states that the attorney has
------------------------ received no notice of revocation
Name of witness (block letters) of the power of attorney
46