EXHIBIT 10.18
DEED OF AMENDMENT (SYNDICATED FACILITY AGREEMENT)
Details
INTERPRETATION - definitions are at the end of the General Terms
PARTIES BORROWER, SECURITY TRUSTEE, AGENT, ADMINISTRATIVE LENDER,
PARTICIPANT AND CONSENT PARTIES
BORROWER Name PENFORD AUSTRALIA LIMITED
ABN 48 003 780 229
Address 170 Epping Road, Lane Cove NSW 2066
Fax (02) 9418 7830
Attention Frank Ianns
SECURITY TRUSTEE Name ANZ CAPEL COURT LIMITED in its capacity as
Security Trustee under the Security 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
(C)Mallesons Stephen Jaques 1
Fax (02) 9227 1334
Attention James Arnold
PARTICIPANT 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
CONSENT PARTY 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
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 Borrower, the Agent and the
Participant are parties to the Syndicated
Facility Agreement.
B The Borrower, the Agent and the
Participant wish to amend the Syndicated
Facility Agreement 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 (SYNDICATED FACILITY AGREEMENT)
General terms
1 AMENDMENTS
1.1 AMENDMENTS
As from the Effective Date, the Syndicated Facility Agreement is varied
as set out in the marked up copy of the Syndicated Facility Agreement
attached as Annexure A to this deed.
1.2 CONFIRMATION
Each party confirms that, other than as provided for in clause 1.1
("Amendments") of this deed, the Financing Documents remain in full
force and effect.
1.3 FINANCING DOCUMENT
The Borrower and the Agent agree that this is a Financing Document for
the purposes of the Syndicated Facility Agreement.
2 INSTRUCTIONS TO THE AGENT
2.1 TRANSACTION DOCUMENT
(SECURITY TRUST DEED (CLAUSE 1.1) The Beneficiaries notify the Agent
that they each instruct the Security Trustee to agree to the
designation of each of the Designated Documents as a "Transaction
Document" for the purposes of the Security Trust Deed.
3 AGENT'S STATEMENT TO THE SECURITY TRUSTEE
3.1 STATEMENT
(SECURITY TRUST DEED (CLAUSE 3.17(c))) The Agent states, for the
benefit of the Security Trustee, that it has received the instructions
of the Beneficiaries to agree to the designation of each of the
Designated Documents as a "Transaction Document" for the purposes of
the Security Trust Deed.
3.2 AGREEMENT
(SECURITY TRUST DEED (CLAUSE 3.17(c))) For the purposes of paragraph
(l) of the definition of "Transaction Document" in the Security Trust
Deed, the Security Trustee (acting on the instructions of the
Beneficiaries) and the
(C)Mallesons Stephen Jaques 3
Borrower agree to the designation of each of the Designated Documents
as a "Transaction Document" for the purposes of the Security Trust
Deed.
4 CONSENTS
4.1 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.
4.2 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.
5 US CREDIT AGREEMENT
5.1 SECURITY TRUST DEED
For the purposes of clause 1.2(e) of the Security Trust Deed, the
Borrower and the Security Trustee agree that the Credit Agreement, when
executed, will replace the US Credit Agreement as defined in the
Security Trust Deed. Accordingly, all references to the US Credit
Agreement in the Security Trust Deed shall be read as references to the
Credit Agreement.
5.2 PENFORD HOLDINGS GUARANTEE
For the purposes of clause 1.2(e) of the Penford Holdings Guarantee,
Penford Holdings Pty Limited and the Security Trustee agree that the
Credit Agreement, when executed, will replace the US Credit Agreement
as defined in the Penford Holdings Guarantee. Accordingly, all
references to the US Credit Agreement in the Penford Holdings Guarantee
shall be read as references to the Credit Agreement.
5.3 PENFORD NEW ZEALAND GUARANTEE
For the purposes of clause 1.2(e) of the Penford New Zealand Guarantee,
Penford New Zealand Limited and the Security 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.
(C)Mallesons Stephen Jaques 4
6 SECURITY TRUSTEE
6.1 SECURITY TRUSTEE'S CAPACITY
The Security Trustee enters into this deed in its capacity as trustee
of the Penford Security Trust.
6.2 SECURITY TRUSTEE ACTS AS NOMINEE
Notwithstanding any other provision of this deed, each party to this
deed (other than the Security Trustee) acknowledges that the Security
Trustee holds the benefit of this deed for the benefit of the
Beneficiaries and:
(a) is bound to act on the instructions of the Beneficiaries
pursuant to the terms of the Security Trust Deed; and
(b) in the absence of such instructions from the Beneficiaries or
where a force majeure event exists, the Security Trustee is
not bound to act.
6.3 DUTIES LIMITED
The Security Trustee's obligations, duties and responsibilities are
limited to those expressly set out in the Security Trust Deed and this
deed.
6.4 ACKNOWLEDGE INDEMNITY
It is acknowledged that the Security Trustee is entitled to be
indemnified for its actions under this deed:
(a) out of the assets of the Penford Security Trust; and
(b) by the Beneficiaries,
except where the Security Trustee has been guilty of fraud, wilful
misconduct or gross negligence.
6.5 LIMITS ON LIABILITY
(a) Notwithstanding any other provision of this deed, but subject
to clause 6.5(b), each party to this deed (other than the
Security Trustee) acknowledges and agrees that:
(i) the Security Trustee's liability under this deed is
limited to its ability to be indemnified in the
manner set out in clause 6.4; and
(ii) it will not have any recourse to the Security Trustee
beyond that for which the Security Trustee is
entitled to be so indemnified as contemplated by
clause 6.4.
(b) The limitation of liability set out in clause 6.5(a) will not
apply where the Security Trustee has been guilty of fraud,
wilful misconduct or gross negligence.
(C)Mallesons Stephen Jaques 5
6.6 ASSIGNMENT BY SECURITY TRUSTEE
(a) Each party to this deed (other than the Security Trustee)
acknowledges and agrees that the Security Trustee may assign
its rights and novate or otherwise transfer its obligations
under this deed to any replacement security trustee that is
appointed under the Security Trust Deed.
(b) Each party to this deed (other than the Security Trustee)
agrees that it will enter into a novation deed with any
replacement security trustee that is appointed under the
Security Trust Deed (in a form acceptable to the Security
Trustee and the replacement security trustee).
7 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.
8 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.
9 INTERPRETATION
9.1 DEFINITIONS
Unless the contrary intention appears, words and expressions defined in
the Syndicated Facility Agreement (as defined below) have the same
meaning when used in this deed.
These meanings apply unless the contrary intention appears:
ADMINISTRATIVE AGENT has the same meaning as in the Credit Agreement.
ADMINISTRATIVE LENDER has the same meaning as in the First
Intercreditor Agreement.
"BENEFICIARY" has the same meaning as in the Security Trust Deed.
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.
EFFECTIVE DATE means the date on which all of the conditions precedent
set out in the schedule have been satisfied, as certified by the Agent
to the Participant.
DESIGNATED DOCUMENTS means:
(C)Mallesons Stephen Jaques 6
(a) this deed;
(b) the Credit Agreement;
(c) the Intercreditor Agreement;
(d) the First Deed of Guarantee and Indemnity; and
(e) the First Australian Memorandum of Deposit.
FIRST AUSTRALIAN MEMORANDUM OF DEPOSIT means the deed so entitled dated
on or about the date of this deed between Penford Corporation and the
Security Trustee.
FIRST DEED OF GUARANTEE AND INDEMNITY means the deed so entitled dated
on or about the date of this deed by Penford Corporation and others.
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.
PENFORD HOLDINGS GUARANTEE means the agreement entitled Penford
Security Trust Guarantee and Indemnity dated 15 November 2000 between
Penford Holdings Pty Limited and the Security Trustee.
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.
SYNDICATED FACILITY AGREEMENT means the agreement so entitled dated 15
November 2000 between the Borrower, the Agent and the Participant, as
amended by deeds of variation dated 22 June 2001 and 22 August 2001.
9.2 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 Security
Trustee, the Agent or the Participant binds the Security
Trustee, Agent or Participant, as the case may be,
individually only;
(C)Mallesons Stephen Jaques 7
(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;
(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).
9.3 NUMBER
The singular includes the plural and vice versa.
9.4 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 8
DEED OF AMENDMENT (SYNDICATED FACILITY AGREEMENT)
Schedule - Conditions precedent
The following items are the conditions precedent referred to in the definition
of "Effective Date":
(a) satisfaction of all conditions precedent under sections 6.1 and 6.2 of
the Credit Agreement, as certified by the Administrative Agent to the
Agent;
(b) receipt by the Agent of all things (including documents, statements and
declarations) necessary to pay any Tax due or which may become due in
respect of the Financing Documents, including as a result of the
amendments contemplated by this deed and the provision of further
financial accommodation under the Syndicated Facility Agreement (as
amended by this deed) up to the agreed limit, together with sufficient
same day funds to enable the payment of all such Tax;
(c) the Agent satisfying itself that there has not been and that there will
not be any event or circumstance which has or is likely to have a
"Material Adverse Effect" as defined in the Credit Agreement;
(d) there being no Default or Event of Default (each as defined in the
Credit Agreement) subsisting at the date of execution of this deed or
the Credit Agreement;
(e) all corporate and other authorisations necessary for the execution of
this deed having been obtained to the Agent's satisfaction; and
(f) any other information or document which the Agent reasonably requests.
The conditions precedent set out above are for the benefit of the Agent and the
Participant only and may only be waived by written notice to the Borrower from
the Agent.
(C)Mallesons Stephen Jaques 9
DEED OF AMENDMENT (SYNDICATED FACILITY AGREEMENT)
Signing page
DATED: 8 OCTOBER 2003
BORROWER
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)
SECURITY 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 10
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 11
PARTICIPANT
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 )
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)
(C)Mallesons Stephen Jaques 12
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 13
DEED OF AMENDMENT (SYNDICATED FACILITY AGREEMENT)
Annexure A - Amendments
(C)Mallesons Stephen Jaques 14
MALLESONS STEPHEN JAQUES
Deed of Amendment
(Syndicated Facility
Agreement)
Dated 8 October 2003
Penford Australia Limited ("Borrower")
ANZ Capel Court Limited ("Security Trustee")
Australia and New Zealand Banking Group Limited ("Agent",
"Administrative Lender" and "Participant")
Penford Holdings Pty 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 (SYNDICATED FACILITY AGREEMENT)
Contents
DETAILS 1
GENERAL TERMS 3
1 AMENDMENTS 3
1.1 Amendments 3
1.2 Confirmation 3
1.3 Financing Document 3
2 INSTRUCTIONS TO THE AGENT 3
2.1 Transaction Document 3
3 AGENT'S STATEMENT TO THE SECURITY TRUSTEE 3
3.1 Statement 3
3.2 Agreement 3
4 CONSENTS 4
4.1 Guarantor consent 4
4.2 Administrative Lender consent 4
5 US CREDIT AGREEMENT 4
5.1 Security Trust Deed 4
5.2 Penford Holdings Guarantee 4
5.3 Penford New Zealand Guarantee 4
6 SECURITY TRUSTEE 5
6.1 Security Trustee's capacity 5
6.2 Security Trustee acts as nominee 5
6.3 Duties limited 5
6.4 Acknowledge indemnity 5
6.5 Limits on liability 5
6.6 Assignment by Security Trustee 6
7 GOVERNING LAW 6
8 COUNTERPARTS 6
9 INTERPRETATION 6
9.1 Definitions 6
9.2 References to certain general terms 7
9.3 Number 8
9.4 Headings 8
SCHEDULE - CONDITIONS PRECEDENT 9
SIGNING PAGE 10
ANNEXURE A - AMENDMENTS 14
(C)Mallesons Stephen Jaques i