Exhibit 10.17
DEED OF AMENDMENT (DEBENTURE TRUST DEED)
Details
INTERPRETATION - definitions are at the end of the General Terms
PARTIES ISSUER, TRUSTEE, AGENT, ADMINISTRATIVE LENDER, DEBENTURE
HOLDER AND CONSENT PARTIES
ISSUER Name PENFORD HOLDINGS PTY LIMITED
ABN 81 094 279 339
Address 170 Epping Road, Lane Cove NSW 2066
Fax (02) 9418 7830
Attention Frank Ianns
TRUSTEE Name ANZ CAPEL COURT LIMITED in its capacity as
Trustee under the Debenture Trust Deed
ABN 30 004 768 807
Address Level 2, 20 Martin Place, Sydney NSW 2000
Fax (02) 9227 1031
Attention Kirsten Ludlow
AGENT Name AUSTRALIA AND NEW ZEALAND BANKING GROUP
LIMITED
ABN 11 005 357 522
Address Level 1, 20 Martin Place, Sydney NSW 2000
Fax (02) 9227 1334
Attention James Arnold
ADMINISTRATIVE Name AUSTRALIA AND NEW ZEALAND BANKING GROUP
LENDER LIMITED
ABN 11 005 357 522
Address Level 1, 20 Martin Place, Sydney NSW 2000
Fax (02) 9227 1334
(C)Mallesons Stephen Jaques 1
Attention James Arnold
DEBENTURE Name AUSTRALIA AND NEW ZEALAND BANKING GROUP
HOLDER LIMITED
ABN 11 005 357 522
Address Level 1, 20 Martin Place, Sydney NSW 2000
Fax (02) 9227 1334
Attention James Arnold
CONSENT PARTY Name PENFORD AUSTRALIA LIMITED
ABN 48 003 780 229
Address 170 Epping Road, Lane Cove NSW 2066
Fax (02) 9418 7830
Attention Frank Ianns
Name PENFORD NEW ZEALAND LIMITED a company
incorporated in New Zealand
Company AK163345
Number
Address 319 Church Street, Onehunga, Auckland, New
Zealand
Fax (02) 9418 7830
Attention Frank Ianns
RECITALS A The Issuer and the Trustee entered into the Debenture
Trust Deed.
B The Issuer and the Trustee wish to amend the Debenture
Trust Deed on the terms of this deed.
GOVERNING LAW New South Wales
DATE OF See Signing page
AMENDING
DEED
(C)Mallesons Stephen Jaques 2
DEED OF AMENDMENT (DEBENTURE TRUST DEED)
General terms
1 AMENDMENTS
1.1 AMENDMENTS
As from the Effective Date, the Debenture Trust Deed is varied as set
out in the marked up copy of the Debenture Trust Deed attached as
Annexure A to this deed.
1.2 CONFIRMATION
Each party confirms that, other than as provided for in clause 1.1
("Amendments"), the Transaction Documents remain in full force and
effect.
2 INSTRUCTIONS TO THE AGENT
2.1 AMENDMENT OF DEBENTURE TRUST DEED
(DEBENTURE TRUST DEED (CLAUSE 3.4(d)(iii))) The Debenture Holder
notifies the Agent that it consents to the amendment of the Debenture
Trust Deed as provided for in clause 1.1 ("Amendments"). The Debenture
Holder agrees that, by virtue of this deed, it shall be taken to have
given its prior written consent to those amendments.
2.2 TRANSACTION DOCUMENT
(DEBENTURE TRUST DEED (CLAUSE 1.1) The Debenture Holder notifies the
Agent that it instructs the Trustee to agree to the designation of each
of the Designated Documents as a Transaction Document.
2.3 EARLY REDEMPTION
(DEBENTURE TRUST DEED (CLAUSE 6.3(b)) The Debenture Holder notifies the
Agent that it agrees to waive 5 Business Days' prior notice of the
Early Redemption.
2.4 DISTRIBUTION OF EARLY REDEMPTION MONEYS
(DEBENTURE TRUST DEED (CLAUSE 4.3)) The Debenture Holder notifies the
Agent that it agrees to the payment in full of the Early Redemption
Moneys to the Debenture Holder, without deduction on account of any
amount referred to in paragraph 4.3(a), (b), (c) or (d) of the
Debenture Trust Deed.
(C)Mallesons Stephen Jaques 3
2.5 ISSUE OF FURTHER DEBENTURES
(DEBENTURE TRUST DEED (CLAUSES 3.4(e), 6.1(b) AND (c))) The Debenture
Holder notifies the Agent that it instructs the Trustee to:
(a) consent to the issue of Tranche 3 Debentures pursuant to the
New Subscription Agreement; and
(b) note the issue of Tranche 3 Debentures issued pursuant to the
New Subscription Agreement in the Register.
3 AGENT'S STATEMENT TO THE TRUSTEE
3.1 STATEMENTS
(DEBENTURE TRUST DEED (CLAUSE 3.17(c))) The Agent states, for the
benefit of the Trustee, that:
(a) it has received the consent of the Debenture Holder to the
amendments provided for in clause 1.1 ("Amendments");
(b) it has received the instructions of the Debenture Holder to
agree to the designation of each of the Designated Documents
as a Transaction Document;
(c) it has received agreement from the Debenture Holder to waive 5
Business Days' prior notice of the Early Redemption;
(d) it has received agreement from the Debenture Holder to the
payment in full of the Early Redemption Moneys to the
Debenture Holder, without deduction on account of any amount
referred to in paragraph 4.3(a), (b), (c) or (d) of the
Debenture Trust Deed;
(e) it has received the instructions of the Debenture Holder to:
(i) consent to the issue of Tranche 3 Debentures pursuant
to the New Subscription Agreement; and
(ii) note the issue of Tranche 3 Debentures issued
pursuant to the New Subscription Agreement in the
Register.
3.2 AGREEMENT AND CONSENT
(DEBENTURE TRUST DEED (CLAUSE 3.17(c))) Acting on the statements in
clause 3.1 ("Statements") and, in relation to paragraph (a) below,
clause 7.3 ("Required Lenders' instructions") of this deed, the
Trustee:
(a) agrees to amend the Debenture Trust Deed as provided for in
clause 1.1 ("Amendments");
(b) agrees to the designation of each of the Designated Documents
as a Transaction Document;
(C)Mallesons Stephen Jaques 4
(c) agrees to waive 5 Business Days' prior notice of the Early
Redemption;
(d) agrees to the payment in full of the Early Redemption Moneys
to the Debenture Holder, without deduction on account of any
amount referred to in paragraph 4.3(a), (b), (c) or (d) of the
Debenture Trust Deed;
(e) consents to the issue of Tranche 3 Debentures pursuant to the
New Subscription Agreement, and will, upon the issue of
Tranche 3 Debentures pursuant to the New Subscription
Agreement, note them in the Register.
4 NOTICE TO THE AGENT AND DEBENTURE HOLDER
4.1 EARLY REDEMPTION
(DEBENTURE TRUST DEED (CLAUSE 6.3(b))) The Issuer notifies the Agent
and the Debenture Holder that it wishes to redeem its Tranche 1
Debentures and Tranche 2 Debentures on the Effective Date.
5 NOTICE TO THE ISSUER
5.1 NOTICE OF DISTRIBUTION
(DEBENTURE TRUST DEED (CLAUSES 4.3 AND 4.6)) The Trustee notifies the
Agent and the Issuer that it intends to distribute the Early Redemption
Moneys in full to the Debenture Holder, without deduction on account of
any amount referred to in paragraph 4.3(a), (b), (c) or (d) of the
Debenture Trust Deed.
The parties acknowledge that the Early Redemption Moneys is the
aggregate of the Principal Amount outstanding of all Tranche 1
Debentures and Tranche 2 Debentures at the proposed Effective Date
(Thursday 9 October 2003) (being $15,440,263.38) and the accrued but
unpaid interest in respect of all Tranche 1 Debentures and Tranche 2
Debentures at the proposed Effective Date (Thursday 9 October 2003)
(being $2,649.90).
6 TRANCHE 3 DEBENTURES
6.1 PRINCIPAL AMOUNT
(DEBENTURE TRUST DEED (CLAUSE 7.2)) The Trustee and the Issuer agree
that the principal amount of Tranche 3 Debentures may be an integral
multiple of any amount less than $100,000, subject to a minimum
principal amount of $1,000,000.
(C)Mallesons Stephen Jaques 5
7 CONSENTS
7.1 GUARANTOR CONSENT
Each Consent Party consents to the amendments provided for in clause
1.1 ("Amendments") of this deed and the other transactions contemplated
by this deed.
7.2 ADMINISTRATIVE LENDER CONSENT
(FIRST INTERCREDITOR AGREEMENT (SECTION 3)) The Administrative Lender,
on behalf of and with the written consent of all "Lenders" (as defined
in the First Intercreditor Agreement), consents to the amendments
provided for in clause 1.1 ("Amendments") of this deed and the other
transactions contemplated by this deed (including clause 7.3).
7.3 REQUIRED LENDERS' INSTRUCTIONS
(DEBENTURE TRUST DEED (CLAUSE 28.10)) The parties to this deed
acknowledge and agree that, by virtue of clause 7.2 ("Administrative
Lender consent") of this deed, the Trustee is taken to have received
the instructions of the Required Lenders to agree to and enter into the
amendments provided for in clause 1.1 ("Amendments") of this deed.
8 DESIGNATION
8.1 SUBSCRIPTION AGREEMENT
The Issuer and the Trustee agree to designate the New Subscription
Agreement as a Subscription Agreement.
8.2 DESIGNATED DOCUMENTS
For the purposes of paragraph (o) of the definition of "Transaction
Document" in the Debenture Trust Deed, the Trustee (acting on the
instructions of the Debenture Holders) and the Issuer agree to the
designation of each of the Designated Documents as a Transaction
Document.
9 US CREDIT AGREEMENT
9.1 PENFORD AUSTRALIA GUARANTEE
For the purposes of clause 1.2(e) of the Penford Australia Guarantee,
Penford Australia Limited and the Trustee agree that the Credit
Agreement, when executed, will replace the US Credit Agreement as
defined in the Penford Australia Guarantee. Accordingly, all references
to the US Credit Agreement in the Penford Australia Guarantee shall be
read as references to the Credit Agreement.
(C)Mallesons Stephen Jaques 6
9.2 PENFORD NEW ZEALAND GUARANTEE
For the purposes of clause 1.2(e) of the Penford New Zealand Guarantee,
Penford New Zealand Limited and the Trustee agree that the Credit
Agreement, when executed, will replace the US Credit Agreement as
defined in the Penford New Zealand Guarantee. Accordingly, all
references to the US Credit Agreement in the Penford New Zealand
Guarantee shall be read as references to the Credit Agreement.
10 TRUSTEE
10.1 TRUSTEE'S CAPACITY
The Trustee enters into this deed in its capacity as trustee of the
Penford Debenture Trust.
10.2 TRUSTEE ACTS AS NOMINEE
Notwithstanding any other provision of this deed, each party to this
deed (other than the Trustee) acknowledges that the Trustee holds the
benefit of this deed for the benefit of the Debenture Holder and:
(a) is bound to act on the instructions of the Debenture Holder
pursuant to the terms of the Debenture Trust Deed; and
(b) in the absence of such instructions from the Debenture Holder
or where a force majeure event exists, the Trustee is not
bound to act.
10.3 DUTIES LIMITED
The Trustee's obligations, duties and responsibilities are limited to
those expressly set out in the Debenture Trust Deed and this deed.
10.4 ACKNOWLEDGE INDEMNITY
It is acknowledged that the Trustee is entitled to be indemnified for
its actions under this deed:
(a) out of the assets of the Penford Debenture Trust; and
(b) by the Debenture Holder,
except where the Trustee has been guilty of fraud, wilful misconduct or
gross negligence.
10.5 LIMITS ON LIABILITY
(a) Notwithstanding any other provision of this deed, but subject
to clause 10.5(b), each party to this deed (other than the
Trustee) acknowledges and agrees that:
(i) the Trustee's liability under this deed is limited to
its ability to be indemnified in the manner set out
in clause 10.4; and
(C)Mallesons Stephen Jaques 7
(ii) it will not have any recourse to the Trustee beyond
that for which the Trustee is entitled to be so
indemnified as contemplated by clause 10.4.
(b) The limitation of liability set out in clause 10.5(a) will not
apply where the Trustee has been guilty of fraud, wilful
misconduct or gross negligence.
10.6 ASSIGNMENT BY TRUSTEE
(a) Each party to this deed (other than the Trustee) acknowledges
and agrees that the Trustee may assign its rights and novate
or otherwise transfer its obligations under this deed to any
replacement trustee that is appointed under the Debenture
Trust Deed.
(b) Each party to this deed (other than the Trustee) agrees that
it will enter into a novation deed with any replacement
trustee that is appointed under the Debenture Trust Deed (in a
form acceptable to the Trustee and the replacement trustee).
11 GOVERNING LAW
This deed is governed by the law in force in the place specified in the
Details and each party submits to the non-exclusive jurisdiction of the
courts of that place.
12 COUNTERPARTS
This deed may consist of a number of copies each signed by one or more
parties to the deed. If so, the signed copies are treated as making up
the one document.
13 INTERPRETATION
13.1 DEFINITIONS
Unless the contrary intention appears, words and expressions defined in
the Debenture Trust Deed (as defined below) have the same meaning when
used in this deed.
These meanings apply unless the contrary intention appears:
ADMINISTRATIVE LENDER has the same meaning as in the First
Intercreditor Agreement.
CREDIT AGREEMENT means the agreement so entitled dated on or about the
date of this deed between Penford Corporation, certain commercial
lending institutions, Harris Trust and Savings Bank and others.
(C)Mallesons Stephen Jaques 8
DEBENTURE TRUST DEED means the deed so entitled dated 15 November 2000
between the Issuer and the Trustee, as amended by deeds of variation
dated 22 June 2001 and 22 August 2001.
DESIGNATED DOCUMENTS means:
(a) this deed;
(b) the Credit Agreement;
(c) the Intercreditor Agreement;
(d) the Second Deed of Guarantee and Indemnity; and
(e) the Second Australian Memorandum of Deposit.
EARLY REDEMPTION means the redemption of the Debenture Holder's Tranche
1 Debentures and Tranche 2 Debentures prior to the Termination Date,
pursuant to the notice given by the Issuer under clause 4.1 ("Early
redemption") of this deed.
EARLY REDEMPTION MONEYS means the amount of $15,442,913.28 (or, if the
Effective Date occurs after Thursday 9 October 2003, the amount
notified to the Issuer in writing by the Agent) received or to be
received by the Debenture Holder upon the Early Redemption.
EFFECTIVE DATE means the date on which all conditions precedent under
the New Subscription Agreement are satisfied, as certified by the
Subscriber (as therein defined).
FIRST INTERCREDITOR AGREEMENT means the agreement entitled
Intercreditor Agreement dated 15 November 2000 between The Bank of Nova
Scotia, KeyBank National Association, U.S. Bank National Association
and Australia and New Zealand Banking Group Limited.
INTERCREDITOR AGREEMENT has the same meaning as in the Credit
Agreement.
NEW SUBSCRIPTION AGREEMENT means the agreement entitled Subscription
Agreement dated on or about the date of this deed between the Issuer
and Australia and New Zealand Banking Group Limited.
PENFORD AUSTRALIA GUARANTEE means the agreement entitled Penford
Debenture Trust Guarantee and Indemnity dated 15 November 2000 between
Penford Australia Limited and the Trustee.
PENFORD DEBENTURE TRUST means the trust constituted under the Debenture
Trust Deed.
PENFORD NEW ZEALAND GUARANTEE means the agreement entitled Guarantee
and Indemnity dated 15 November 2000 between Penford New Zealand
Limited (formerly known as Starch New Zealand Limited) and ANZ Capel
Court Limited.
(C)Mallesons Stephen Jaques 9
SECOND AUSTRALIAN MEMORANDUM OF DEPOSIT means the deed so entitled
dated on or about the date of this deed between Penford Corporation and
the Trustee.
SECOND DEED OF GUARANTEE AND INDEMNITY means the deed so entitled dated
on or about the date of this deed by Penford Corporation and others.
13.2 REFERENCES TO CERTAIN GENERAL TERMS
Unless the contrary intention appears, a reference to:
(a) a group of persons is a reference to any two or more of them
jointly and to each of them individually;
(b) an agreement, representation or warranty in favour of two or
more persons is for the benefit of them jointly and each of
them individually;
(c) an agreement, representation or warranty by two or more
persons binds them jointly and each of them individually, but
an agreement, representation or warranty by the Trustee, the
Agent or the Debenture Holder binds the Trustee, Agent or
Debenture Holder, as the case may be, individually only;
(d) anything (including an amount) is a reference to the whole and
each part of it;
(e) a document (including this deed) includes any variation or
replacement of it;
(f) law means common law, principles of equity, and laws made by
parliament (and laws made by parliament include State,
Territory and Commonwealth laws and regulations and other
instruments under them, and consolidations, amendments,
re-enactments or replacements of any of them);
(g) an accounting term is a reference to that term as it is used
in accounting standards under the Corporations Act, or, if not
inconsistent with those standards, in accounting principles
and practices generally accepted in Australia;
(h) Australian dollars, dollars, $ or A$ is a reference to the
lawful currency of Australia;
(i) a time of day or date is a reference to Sydney time;
(j) the word "person" includes an individual, a firm, a body
corporate, an unincorporated association and an authority;
(k) a particular person includes a reference to the person's
executors, administrators, successors, substitutes (including
persons taking by novation) and assigns;
(C)Mallesons Stephen Jaques 10
(l) the words "including", "for example" or "such as" when
introducing an example, do not limit the meaning of the words
to which the example relates to that example or examples of a
similar kind;
(m) the Corporations Act is a reference to the Corporations Act
2001 (Cwlth).
13.3 NUMBER
The singular includes the plural and vice versa.
13.4 HEADINGS
Headings (including those in brackets at the beginning of paragraphs)
are for convenience only and do not affect the interpretation of this
deed.
EXECUTED as a deed
(C)Mallesons Stephen Jaques 11
DEED OF AMENDMENT (DEBENTURE TRUST DEED)
Signing page
DATED: 8 OCTOBER 2003
ISSUER
SIGNED, SEALED AND )
DELIVERED by Frank Iannuzzelli )
)
as attorney for PENFORD )
HOLDINGS PTY LIMITED under )
power of attorney dated 7 October )
2003 )
)
in the presence of: ) /s/ Frank Iannuzzelli
) -------------------------------------
/s/ Aspasia Pasialis ) By executing this deed the attorney
- ----------------------------------- ) states that the attorney has received
Signature of witness ) no notice of revocation of the power
Aspasia Pasialis ) of attorney
- -----------------------------------
Name of witness (block letters)
TRUSTEE
SIGNED, SEALED AND )
DELIVERED by Kirsten Ludlow )
)
as attorney for ANZ CAPEL )
COURT LIMITED under power of )
attorney dated 15/11/00 Book 4293 )
No. 25 )
)
in the presence of: ) /s/ Kirsten Ludlow
) -------------------------------------
/s/ Nicholas E. Wiley ) By executing this deed the attorney
- ----------------------------------- ) states that the attorney has received
Signature of witness ) no notice of revocation of the power
Nicholas E. Wiley ) of attorney
- -----------------------------------
Name of witness (block letters)
(C)Mallesons Stephen Jaques 12
AGENT
SIGNED, SEALED AND )
DELIVERED by Steve Breslin )
)
as attorney for AUSTRALIA AND )
NEW ZEALAND BANKING )
GROUP LIMITED under power of )
attorney dated 18/11/02 Book 4376 )
No. 412 )
)
in the presence of: ) /s/ Steve Breslin
) -------------------------------------
/s/ Nicholas E. Wiley ) By executing this deed the attorney
- ----------------------------------- ) states that the attorney has received
Signature of witness ) no notice of revocation of the power
Nicholas E. Wiley of attorney
- -----------------------------------
Name of witness (block letters)
ADMINISTRATIVE LENDER
SIGNED, SEALED AND )
DELIVERED by Steve Breslin )
)
as attorney for AUSTRALIA AND )
NEW ZEALAND BANKING )
GROUP LIMITED under power of )
attorney dated 18/11/02 Book 4376 )
No. 412 )
)
in the presence of: ) /s/ Steve Breslin
) -------------------------------------
/s/ Nicholas E. Wiley ) By executing this deed the attorney
- ----------------------------------- ) states that the attorney has received
Signature of witness ) no notice of revocation of the power
Nicholas E. Wiley of attorney
- -----------------------------------
Name of witness (block letters)
(C)Mallesons Stephen Jaques 13
DEBENTURE HOLDER
SIGNED, SEALED AND )
DELIVERED by Steve Breslin )
)
as attorney for AUSTRALIA AND )
NEW ZEALAND BANKING )
GROUP LIMITED under power of )
attorney dated 18/11/02 Book 4376 )
No. 412 )
)
in the presence of: ) /s/ Steve Breslin
) -------------------------------------
/s/ Nicholas E. Wiley ) By executing this deed the attorney
- ----------------------------------- ) states that the attorney has received
Signature of witness ) no notice of revocation of the power
Nicholas E. Wiley of attorney
- -----------------------------------
Name of witness (block letters)
CONSENT PARTIES
SIGNED, SEALED AND )
DELIVERED by Frank Iannuzzelli )
)
as attorney for PENFORD )
AUSTRALIA LIMITED under )
power of attorney dated 7 October )
2003 )
)
in the presence of: ) /s/ Frank Iannuzzelli
) -------------------------------------
/s/ Aspasia Pasialis ) By executing this deed the attorney
- ----------------------------------- ) states that the attorney has received
Signature of witness ) no notice of revocation of the power
Aspasia Pasialis of attorney
- -----------------------------------
Name of witness (block letters)
(C)Mallesons Stephen Jaques 14
SIGNED, SEALED AND )
DELIVERED by Frank Iannuzzelli )
)
as attorney for PENFORD NEW )
ZEALAND LIMITED under power )
of attorney dated 7 October 2003 )
)
in the presence of: )
) /s/ Frank Iannuzzelli
/s/ Aspasia Pasialis ) -------------------------------------
- ----------------------------------- )
Signature of witness )
Aspasia Pasialis )
- -----------------------------------
Name of witness (block letters)
CERTIFICATE OF NON-REVOCATION OF POWER OF ATTORNEY
I, Frank Iannuzzelli of 170 Epping Road, Lane Cove,
Finance Director , certify that:
1 by a power of attorney dated 7 October 2003 (power of attorney),
Penford New Zealand Limited (grantor), appointed me its attorney on the
terms and subject to the conditions set out in the said power of
attorney;
2 at the date of this certificate I have not received any notice or
information of the revocation of that appointment by the commencement
of the dissolution of the grantor or otherwise; and
3 I have executed the attached document in the name of the grantor in my
capacity as its attorney under the powers conferred by the said power
of attorney.
SIGNED at Sydney this 8th day of October 2003
/s/ Frank Iannuzzelli
- ---------------------------
Signed
Frank Iannuzzelli
- ---------------------------
Name
(C)Mallesons Stephen Jaques 15
DEED OF AMENDMENT (DEBENTURE TRUST DEED)
Annexure A - Amendments
(C)Mallesons Stephen Jaques 16
MALLESONS STEPHEN JAQUES
Deed of Amendment
(Debenture Trust Deed)
Dated 8 October 2003
Penford Holdings Pty Limited ("Issuer")
ANZ Capel Court Limited ("Trustee")
Australia and New Zealand Banking Group Limited ("Agent",
"Administrative Lender" and "Debenture Holder")
Penford Australia Limited ("Consent Party")
Penford New Zealand Limited ("Consent Party")
MALLESONS STEPHEN JAQUES
Solicitors
Level 60
Governor Phillip Tower
1 Farrer Place
Sydney NSW 2000
DX 113, Sydney
Tel: +61 2 9296 2000
Fax: +61 2 9296 3999
Ref: GNH/NW/BA
Deed of Amendment (DEBENTURE TRUST DEED)
Contents
DETAILS 1
GENERAL TERMS 3
1 AMENDMENTS 3
1.1 Amendments 3
1.2 Confirmation 3
2 INSTRUCTIONS TO THE AGENT 3
2.1 Amendment of Debenture Trust Deed 3
2.2 Transaction Document 3
2.3 Early Redemption 3
2.4 Distribution of Early Redemption Moneys 3
2.5 Issue of further Debentures 4
3 AGENT'S STATEMENT TO THE TRUSTEE 4
3.1 Statements 4
3.2 Agreement and consent 4
4 NOTICE TO THE AGENT AND DEBENTURE HOLDER 5
4.1 Early redemption 5
5 NOTICE TO THE ISSUER 5
5.1 Notice of distribution 5
6 TRANCHE 3 DEBENTURES 5
6.1 Principal amount 5
7 CONSENTS 6
7.1 Guarantor consent 6
7.2 Administrative Lender consent 6
7.3 Required Lenders' instructions 6
8 DESIGNATION 6
8.1 Subscription Agreement 6
8.2 Designated Documents 6
9 US CREDIT AGREEMENT 6
9.1 Penford Australia Guarantee 6
9.2 Penford New Zealand Guarantee 7
10 TRUSTEE 7
10.1 Trustee's capacity 7
10.2 Trustee acts as nominee 7
10.3 Duties limited 7
10.4 Acknowledge indemnity 7
10.5 Limits on liability 7
10.6 Assignment by Trustee 8
(C)Mallesons Stephen Jaques i
11 GOVERNING LAW 8
12 COUNTERPARTS 8
13 INTERPRETATION 8
13.1 Definitions 8
13.2 References to certain general terms 10
13.3 Number 11
13.4 Headings 11
SIGNING PAGE 12
ANNEXURE A - AMENDMENTS 17
(C)Mallesons Stephen Jaques ii