EXHIBIT 99(b)(6)
SCHEDULE 1
FACILITY AGREEMENT
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FBG TREASURY (AUST.) LIMITED
FBG TREASURY (UK) PLC
FBG TREASURY (EUROPE) B.V.
FBG TREASURY (NZ) LIMITED
FBG TREASURY (USA) INC.
XXXXXX'X BREWING GROUP LIMITED
COMMONWEALTH BANK OF AUSTRALIA
MULTI OPTION CREDIT FACILITY
XXXXXX XXXXXXXX & HEDDERWICKS
Stock Exchange Centre
000 Xxxxxxx Xxxxxx
Xxxxxxxxx 0000 Xxxxxxxxx
Tel 00 0 0000 0000
Fax 00 0 0000 0000
FACILITY AGREEMENT
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TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 2
1.1 Definitions 2
1.2 Interpretation 8
1.3 Trust Deed 9
1.4 Repayment and prepayment 9
1.5 Principal 9
2. COMMITMENT 10
3. CANCELLATION AND REVIEW OF COMMITMENT 10
3.1 Cancellation during Availability Period 10
3.2 Cancellation at end of Availability Period 10
3.3 Periodic Review 10
3.4 Extension of Repayment Date 11
3.5 FBG authorised to agree variations on Borrowers' behalf 11
4. SELECTION OF FUNDING PERIODS 11
5. REPAYMENT 11
6. PREPAYMENT AND CASH COVER 11
6.1 Voluntary prepayments 11
6.2 Special prepayments 12
6.3 Limitation on prepayments 12
6.4 Interest, break and other costs 12
6.5 Cash cover 12
6.6 Repayment or cash cover 13
6.7 Interest 13
6.8 Application 13
6.9 Repayment of cash cover 13
6.10 Notification of amount 14
7. STERLING CASH ADVANCE FACILITY 14
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7.1 Advance of Segment 14
7.2 Interest rate and notification 14
7.3 Basis of calculation of interest 15
7.4 Payment of interest 15
7.5 Netting off 15
7.6 Additional domestic Sterling costs 15
8. A$ CASH ADVANCE FACILITY 15
8.1 Advance of Segment 15
8.2 Interest rate and notification 16
8.3 Basis of calculation of interest 16
8.4 Payment of interest 16
8.5 Netting off 16
9. US$ CASH ADVANCE FACILITY 17
9.1 Advance of Segment 17
9.2 Interest rate and notification 17
9.3 Basis of calculation of interest 17
9.4 Payment of interest 18
9.5 Netting off 18
10. EURO CASH ADVANCE FACILITY 18
10.1 Advance of Segment 18
10.2 Interest Rate and Notification 19
10.3 Basis of calculation of Interest 19
10.4 Payment of Interest 19
10.5 Netting off 19
11. NZ$ CASH ADVANCE FACILITY 19
11.1 Advance of Segment 19
11.2 Interest rate and notification 20
11.3 Basis of calculation of interest 20
11.4 Payment of interest 20
11.5 Netting off 20
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12. XXXXXXXX XXXX FACILITY 21
12.1 Commitment 21
12.2 Requirements of Bills 21
12.3 Authority 22
12.4 Acceptance 22
12.5 Acceptance and Discount 23
12.6 Indemnity 24
12.7 Cash cover 24
12.8 Netting off 24
13. A$ XXXX FACILITY 24
13.1 Commitment 24
13.2 Requirements of Bills 25
13.3 Authority 26
13.4 Acceptance 26
13.5 Acceptance and Discount 26
13.6 Indemnity 27
13.7 Cash cover 27
13.8 Netting off 27
14. LC FACILITY 28
14.1 Issue 28
14.2 Form 28
14.3 Expiry Date 28
14.4 Amount 28
14.5 Currency Conversion 29
14.6 Payment of Secured Financings 29
14.7 Indemnity 29
14.8 Reinstatement of obligations 29
14.9 Obligations unconditional 30
15. OTHER CURRENCIES 30
16. TELEPHONE REQUESTS AND DRAWDOWN NOTICES 31
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17. PAYMENTS AND TAXATION 32
17.1 Time and place 32
17.2 No deduction 32
17.3 Payment to be made on Business Day 32
17.4 Appropriation where insufficient moneys available 32
17.5 Additional payments 32
17.6 Survival of obligations 33
17.7 Xxxxxxxxxxxxx 00
00. CHANGES IN LAW 33
18.1 Increased costs 33
18.2 Minimisation 34
18.3 Survival of obligations 35
19. ILLEGALITY 35
19.1 Illegality 35
19.2 Bank of England requirements 35
20. CONDITIONS PRECEDENT AND SUBSEQUENT 36
20.1 Conditions precedent to drawdown 36
20.2 Conditions precedent to each Segment 36
21. REPRESENTATIONS, WARRANTIES, COVENANTS AND EVENTS OF DEFAULT 37
21.1 Representations and Warranties 37
21.2 Trust Deed Covenants 37
21.3 Events of Default 37
22. SET-OFF 37
22.1 Set-Off 37
22.2 Currency Exchange 38
23. INDEMNITIES 38
24. CURRENCY INDEMNITY 39
24.1 General 39
24.2 Liquidation 39
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25. STAMP DUTIES 39
25.1 Borrower to pay 39
25.2 FID etc included 40
25.3 Indemnity 40
26. EXPENSES 40
27. WAIVERS, REMEDIES CUMULATIVE 40
27.1 Waivers 40
27.2 Rights cumulative 40
28. SEVERABILITY OF PROVISIONS 40
29. SURVIVAL OF REPRESENTATIONS AND INDEMNITIES 41
29.1 Survival of representations 41
29.2 Continuing indemnities 41
30. MORATORIUM LEGISLATION 41
31. CONTROL ACCOUNTS 41
32. INTEREST ON OVERDUE AMOUNTS 41
32.1 Default interest 41
32.2 Rate 42
32.3 Basis of calculation 42
32.4 Capitalisation 42
32.5 Contingent Amounts 42
32.6 Risk fee 43
33. FEES 43
34. ASSIGNMENT 43
34.1 Assignments by Borrowers and Xxxxxx'x Brewing Group 43
34.2 Assignment by Lender 43
34.3 Disclosure 44
34.4 Change of Lending Office 44
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34.5 Increase in costs 44
35. NOTICES 45
35.1 Notices 45
35.2 To Borrowers or Xxxxxx'x Brewing Group 45
36. AUTHORISED OFFICERS 46
37. GOVERNING LAW AND JURISDICTION 47
38. COUNTERPARTS 47
39. ACKNOWLEDGEMENT BY BORROWERS AND XXXXXX'X BREWING GROUP 47
40. UK LENDER REPRESENTATIONS 47
40.1 Eligible bank warranty 47
40.2 Section 349 warranty 47
40.3 Ceasing to be a Qualifying Lender 47
41. ATTORNEYS 48
SCHEDULE 1 49
Lending Offices 49
SCHEDULE 2 51
Additional domestic Sterling costs 51
ANNEXURE A 53
Sterling Drawdown Notice 53
ANNEXURE B 55
A$ Drawdown Notice 55
ANNEXURE C 57
US$ Drawdown Notice 57
ANNEXURE D 58
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NZ$ Drawdown Notice 58
ANNEXURE E 59
LC Facility Drawdown Notice 59
ANNEXURE F 61
Form of Letter of Credit 61
ANNEXURE G 64
Euro Drawdown Notice 64
ANNEXURE H 65
Verification Certificate 65
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DATE
10 May 1991
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PARTIES
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1. FBG TREASURY (AUST.) LIMITED (A.C.N. 006 865 738) of 00
Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxx (TREASURY AUST).
2. FBG TREASURY (UK) PLC of Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxxxx,
Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxx XX00 0XX (TREASURY UK).
3. FBG TREASURY (EUROPE) B.V. having its registered office in
Amsterdam and its business office in Weesp at Xxxxxxxxxxxxxx
00, Xxx Xxxxxxxxxxx (TREASURY EUROPE)
4. FBG TREASURY (NZ) LIMITED of Xxxxx 0, Xxxxx'x Xxxxx, 00 Xxxxxx
Xxxx Xxxx, Xxxxxxx, Xxxxxxxx, Xxx Xxxxxxx (TREASURY NZ)
5. FBG TREASURY (USA) INC., of Xxxxx 000, 000 Xxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxx XXX 00000 (TREASURY USA)
6. XXXXXX'X BREWING GROUP LIMITED (A.C.N. 000 000 000) of 00
Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxx (XXXXXX'X BREWING
GROUP).
7. COMMONWEALTH BANK OF AUSTRALIA (A.C.N. 123 123 124) of 000
Xxxxxx Xxxxxx, Xxxxxxxxx (the LENDER).
RECITALS
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A Each Borrower and Xxxxxx'x Brewing Group has requested the
Lender to provide the Borrowers with a facility under which
financial accommodation of up to a maximum amount of
A$125,000,000 or its equivalent in Sterling, US dollars,
Euros, NZ dollars or Other Currencies may be made available to
the Borrowers.
B Each of the Borrowers and Xxxxxx'x Brewing Group is party to a
FBG Group Financing Trust Deed (the TRUST DEED) dated 21
February 1993 (as amended) which sets out certain of the terms
and conditions which apply or will apply to any financial
accommodation which may be made available to each Borrower
under this Agreement.
NOW IT IS AGREED as follows.
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1. DEFINITIONS AND INTERPRETATION
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1.1 DEFINITIONS
When used in this Agreement the following terms shall have the
following meanings unless the context otherwise requires.
A$ or AUSTRALIAN DOLLARS means the lawful currency of Australia.
A$ CASH ADVANCE FACILITY means the facility provided under Clause 8.
A$ XXXX FACILITY means the facility provided under Clause 13.
AVAILABILITY PERIOD means the period commencing on the date of this
Agreement and expiring on the Repayment Date or, if earlier, the date
on which the Commitment is cancelled in its entirety.
BANK XXXX RATE in relation to a Funding Period for a Segment under the
A$ Cash Advance Facility or the A$ Xxxx Facility means:
(a) the bid rate displayed at or about 10.30 am (Sydney time) on
the first day of that Funding Period on the Reuters screen
BBSY page for a term equivalent to the Funding Period; or
(b) if:
(i) for any reason there are no rates displayed for a
period equivalent to that Funding Period; or
(ii) the basis on which those rates are displayed is
changed and in the opinion of the Lender those rates
cease to reflect the Lender's cost of funding to the
same extent as at the date of this Agreement,
then the Bank Xxxx Rate will be the rate determined by the
Lender to be the arithmetic mean of the bid rates quoted to
the Lender by each of the three Australian banks selected by
the Lender at or about that time on that date for bills of
exchange which are accepted by an Australian bank selected by
the Lender and which have a term equivalent to the Funding
Period. If there are no bid rates the rate will be the rate
determined by the Lender to be its cost of funds.
Rates will be expressed as a yield per cent per annum to maturity.
BENEFICIARY means a beneficiary under a Letter of Credit.
XXXX means
(a) in relation to the Xxxxxxxx Xxxx Facility, a xxxx of exchange,
as defined in the Bills of Exchange Act 1882 (UK) and
denominated in Sterling; or
(b) in relation to the A$ Xxxx Facility, a Xxxx of exchange as
defined in the Bills of Exchange Act 1909 (Australia) and
denominated in A$,
which is, or is to be, accepted or accepted and discounted under this
Agreement.
XXXX FACILITY means the A$ Xxxx Facility or the Xxxxxxxx Xxxx Facility.
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BORROWER means Treasury Aust., Treasury UK, Treasury Europe, Treasury
NZ or Treasury USA.
BUSINESS DAY means:
(a) in the case of any drawing or payment under, or the
determination of any interest rate or the length of any
Funding Period in respect of:
(i) the Xxxxxxxx Xxxx Facility or the Sterling Cash
Advance Facility, a week day on which banks are open
for business in London;
(ii) the A$ Cash Advance Facility or the A$ Xxxx Facility,
a week day on which banks are open for business in
Melbourne;
(iii) the US$ Cash Advance Facility, a week day on which
banks are open for business in New York City;
(iv) the Euro Cash Advance Facility, a week day on which
banks are open for business in Amsterdam and the
location of the Lending office through which the
relevant Segment under that Facility has been or is
to be provided (as applicable);
(v) the NZ$ Cash Advance Facility, a week day on which
banks are open for business in Auckland;
(vi) the LC Facility, a week day on which banks are open
for business in Melbourne and the place where the
relevant Letter of Credit is to be issued;
(b) for the purpose of determining an Exchange Rate, a week day on
which the London, Sydney and Auckland foreign exchange markets
are open;
(c) where any other payment is to be made or an action is to be
performed under or for the purposes of this Agreement, a week
day on which banks are open for business in Melbourne and the
place where that payment is to be made or that action is to be
performed.
CASH ADVANCE FACILITY means the Sterling Cash Advance Facility, the A$
Cash Advance Facility, the Euro Cash Advance Facility, the NZ$ Cash
Advance Facility or the US$ Cash Advance Facility.
COMMITMENT means, save as otherwise provided herein, A$125,000,000 or
as reduced or cancelled under this Agreement.
CURRENT AUSTRALIAN DOLLAR VALUE means on any day in relation to a
Segment or part of a Segment:
(a) denominated in Sterling, US dollars, Euros, NZ dollars or
Other Currency, the principal amount of that Segment or part
as at that day converted to Australian dollars on that day at
the Exchange Rate applicable to that day; and
(b) denominated in Australian dollars, the principal amount of
that Segment or part as at that day.
DRAWDOWN DATE means:
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(a) in relation to the LC Facility, the date on which any Letter
of Credit is or is to be issued; and
(b) in relation to the Xxxxxxxx Xxxx Facility, the Sterling Cash
Advance Facility, the A$ Xxxx Facility, the A$ Cash Advance
Facility, the Euro Cash Advance Facility, the NZ$ Cash Advance
Facility or the US$ Cash Advance Facility, the date on which
any Segment under this Agreement is or is to be drawn.
DRAWDOWN NOTICE means a notice given or to be given in accordance with
Clauses 7.1, 8.1, 9.1, 10.1, 11.1, 12.1, 13.1 or 14.1 as the case may
be.
ELIGIBLE XXXXXXXX XXXX means, in relation to the Xxxxxxxx Xxxx
Facility, a Xxxx eligible for rediscount at the Bank of England.
ELIGIBLE STERLING DISCOUNT RATE means, in relation to any Xxxx
comprising a Segment under the Xxxxxxxx Xxxx Facility, to be accepted
and discounted pursuant to Clause 12, the finest rate (as determined by
the Lender, save in any case of manifest error, at or about 11.00 a.m.
(London time) on the proposed Drawdown Date in respect of that Xxxx) at
which Eligible Sterling Bills of an aggregate face value and Tenor
equivalent to the Bills then proposed to be discounted by the Lender on
that date can be discounted by the Lender in the London discount market
on that Drawdown Date.
EURO and EUR each mean the lawful currency of the member states of the
European Union that adopt the single currency in accordance with the
Treaty establishing the European Community, as amended by the Treaty on
European Union.
EURO CASH ADVANCE FACILITY means the facility provided under Clause 10.
EURO LIBOR means in relation to a Funding Period of a Segment under the
Euro Cash Advance Facility:
(a) the rate (rounded upwards if necessary to 3 decimal places)
displayed as the EUR rate on the Reuters screen page LIBOR01
for a term equivalent to that Funding Period for the value
date which is the first day of that Funding Period;
(b) where in the opinion of the Lender there is no or is no longer
a Reuters screen page appropriate for the Euro for that
Funding Period, the Lender may specify another publicly
available page and the rate will be determined from that page
in the same manner; or
(c) if:
(i) for any reason there are no rates displayed for a
term equivalent to that Funding Period for the Euro;
or
(ii) the basis on which those rates are displayed is
changed and in the opinion of the Lender those rates
cease to reflect the Lender's cost of funding to the
same extent as at the date of this Agreement,
then Euro Libor will be the rate determined by the Lender to
be the arithmetic mean of the rates quoted to it by four
leading banks selected by it in the Euro-zone interbank market
or the London
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interbank market at or about 11.00am (Brussels time) two
Business Days before that Funding Period for the making of
Euro deposits with the Lender for a term comparable to that
Funding Period.
EURO-ZONE means the region comprised of the participating member states
in the European Economic and Monetary Union.
EXCHANGE RATE means with respect to a currency on a date:
(a) the arithmetic mean of the bid rate and the ask cross rates
for the relevant currency as displayed at or about 10.20 am
(Sydney time) on that date on the Reuters page AUDX =; or
(b) if no such rate is available at the time that a currency
conversion is required to be carried out under this Agreement
on that date, such rate as so displayed on the preceding
Business Day.
EXCLUDED TAX means:
(a) any Tax imposed by any jurisdiction on the net income of the
Lender as a consequence of the Lender being a resident of or
organised or doing business in that jurisdiction;
(b) any Tax of the United Kingdom which is calculated on or by
reference to the gross amount of any payments of interest or
Margin (without allowance for any deduction) derived under any
Relevant Document or any other document referred to in any
Relevant Document by the Lender as a result of the Lender:
(i) not being a bank as defined for the purposes of
Section 349 of the Income and Corporation Taxes Act
1988 (UK); or
(ii) if it is such a bank, not being within the charge to
United Kingdom corporation tax with respect to such
payments
but not any other Tax:-
(c) which is calculated on or by reference to the gross amount of
any payments (without the allowance of any deduction) derived
under any Relevant Document or any other document referred to
in any Relevant Document by the Lender; or
(d) which is imposed as a result of the Lender being considered a
resident of or organised or doing business in that
jurisdiction solely as a result of it being a party to any
Relevant Document or any transaction contemplated by any
Relevant Document.
FACILITY means the Xxxxxxxx Xxxx Facility, the Sterling Cash Advance
Facility, the A$ Xxxx Facility, the A$ Cash Advance Facility, the NZ$
Cash Advance Facility, the US$ Cash Advance Facility, the Euro Cash
Advance Facility or the LC Facility or any facility for the provision
of cash advances agreed under Clause 15.
FEE LETTER means any letter from the Lender to Xxxxxx'x Brewing Group
referred to in Clause 34.
FINANCE ACT means the Finance Xxx 0000 (UK).
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FUNDING PERIOD means in relation to a Segment of:
(a) a Xxxx Facility, the Tenor of the relevant Bills comprising
that Segment;
(b) a Cash Advance Facility, a period for the fixing of interest
rates for, and the funding of, such Segment; and
(c) the LC Facility, the term of the Letters of Credit comprising
such Segment,
such period to commence on the Drawdown Date of that Segment and have a
duration selected under Clause 4.
GROUP NOMINEE means, in respect of the LC facility, a member of the
Group nominated by a Borrower in a Drawdown Notice.
LC FACILITY means the facility provided under Clause 14.
LENDING OFFICE means, in respect of a Facility and payments to be made
to the Lender in a particular currency, the office of the Lender so
designated in the First Schedule or such other branch, office or agency
as it may, subject to Clause 34.4, designate for the purposes of this
Agreement by notice to Xxxxxx'x Brewing Group.
LETTER OF CREDIT means an irrevocable letter of credit issued under
Clause 13.1.
LIBOR in relation to a Funding Period of a Segment under the Sterling
Cash Advance Facility or the US$ Cash Advance Facility means:
(a) the rate determined by the Lender to be the rate displayed on
the Reuters screen page LIBOR01 for a term equivalent to that
Funding Period for the value date which is the first day of
that Funding Period in respect of the currency of the relevant
segment;
(b) where in the opinion of the Lender, there is no or is no
longer a Reuters screen page appropriate for the relevant
currency, the Lender may specify another publicly available
page and the rate will be determined from that page in the
same manner; or
(c) if:
(i) for any reason there are no rates displayed for a
term equivalent to that Funding Period for the
currency of the relevant Segment; or
(ii) the basis on which those rates are displayed is
changed and in the opinion of the Lender (as the case
may be), those rates cease to reflect the Lender's
cost of funding to the same extent as at the date of
this Agreement,
then LIBOR will be the rate determined by the Lender to be the
arithmetic mean of the rates quoted to it by three leading
banks selected by it in the London Interbank Market or, in the
case of eurosterling, the Paris or Brussels Interbank Market
at or about 11.00am (London time) two Business Days before
that Funding Period (or, in the case of domestic Sterling, on
the first day of that
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Funding Period) for the making of deposits with the Lender in
the currency of the relevant Segment and for a term comparable
to that Funding Period.
Each arithmetic mean will be rounded up, if necessary, to a maximum of
four decimal places.
MARGIN means, in respect of a Facility, the amount per cent per annum
set out in the relevant Fee Letter for that Facility.
NZ BANK XXXX RATE in relation to a Funding Period means:
(a) the rate determined by the Lender to be the average bid rate
(rounded up, if necessary, to the nearest four decimal places)
displayed at or about 10:45am (Auckland time) on the first day
of that Funding Period on the Reuters screen BKBM page for a
term equivalent to the Funding Period; or
(b) if for any reason there is no rate displayed for a period
equivalent to that Funding Period, then the NZ Bank Xxxx Rate
will be the rate determined by the Lender to be the average of
the buying rates quoted to the Lender by each of three New
Zealand banks selected by the Lender at or about that time on
that date selected by the Lender and that have a term
equivalent to the Funding Period. If there are no buying rates
the rate will be the rate determined by the Lender to be its
average cost of funds in relation to the NZ$ Cash Advance
Facility (as applicable).
Rates will be expressed as a yield per annum to maturity.
NZ CASH ADVANCE FACILITY means the facility provided under Clause 11.
NZ$ OR NZ DOLLARS means the lawful currency of New Zealand.
OTHER CURRENCY means any currency other than Australian dollars, US
dollars, Euros, NZ dollars or Sterling as may be agreed to by the
Lender and Xxxxxx'x Brewing Group in relation to the LC Facility or in
accordance with Clause 15(a).
PRINCIPAL OUTSTANDING means the aggregate principal amount of all
outstanding Segments for the time being.
QUALIFYING LENDER means:
(a) a bank which, when acting through its Lending Office in the
United Kingdom is a bank as defined for the purposes of
Section 349 of the Income and Corporation Taxes Act 1988 (UK);
and
(b) such bank is and will continue to be within the charge to
United Kingdom corporation tax in respect of any payments of
interest and the Margin derived by it under this Agreement.
Provided that if Section 349 of the Income and Corporation Taxes Act
1988 (UK) is amended or repealed (otherwise than by reason of any
provision of the Finance Act in the form contemplated above within this
definition), the Lender shall have the power to amend Clause 40.2 of
this Agreement at any time and from time to time, by notice to the
relevant Borrower, in such
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manner as it may reasonably determine to be appropriate in the
circumstances.
REPAYMENT DATE means, subject to Clause 3, 29 August 2001 or such later
date as applies under Clause 3.3 or 3.4 (as applicable).
SAME DAY FUNDS means:
(a) in the case of Sterling, the manner of payment in Sterling
which the Lender specifies to Treasury UK as being customary
at that time for the settlement of transactions of the type
contemplated by this Agreement or, if no manner is specified,
immediately available funds in Sterling;
(b) in the case of Australian dollars or NZ dollars, a bank cheque
or other immediately available funds; or
(c) in the case of US dollars Euros or any Other Currency, the
manner of payment in the currency concerned which the Lender
specifies to the relevant Borrower as being customary for the
settlement in that currency of transactions of the type
contemplated by this Agreement.
SECURED FINANCING means accommodation provided to a Borrower or a Group
Nominee by a Beneficiary on the security of a Letter of Credit.
SEGMENT means each portion of the amount advanced or provided or, as
the context may require, to be advanced or provided, to a Borrower
under a Facility which has the same Funding Period.
STERLING or [pound] means the lawful currency of the United Kingdom.
XXXXXXXX XXXX FACILITY means the facility provided under Clause 12.
STERLING CASH ADVANCE FACILITY means the facility provided under
Clause 7.
TELEPHONE REQUEST means a request for a Segment given by telephone
under Clause 7.1(b), 8.1(b), 9.1(b), 10.1(b), 11.1(b), 12.1(b) or
13.1(b).
TENOR means, in relation to any Xxxx, the period from the Drawdown Date
on which it is accepted to but excluding the last day of the Funding
Period relating to it, as specified in the Drawdown Notice relating to
it.
TRUSTEE means AXA Trustees Limited or any other person appointed as
trustee under the Trust Deed.
UNDRAWN COMMITMENT means, at any time, the Commitment less the
aggregate Current Australian Dollar Value of the Principal Outstanding.
US$ or US DOLLARS means the lawful currency of the United States of
America.
US$ CASH ADVANCE FACILITY means the facility provided under Clause 9.
1.2 INTERPRETATION
In this Agreement, unless the contrary intention appears:
(a) Clauses 1.2, 1.3, 1.4 and 1.5 of the Trust Deed apply to this
Agreement as if incorporated in this Agreement, except that
all
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references in those Clauses to "Deed" and "Trustee" are
replaced with "Agreement" and "Lender" respectively; and
(b) references to time are to Melbourne time.
1.3 TRUST DEED
(a) Each party to this Agreement acknowledges and agrees that the
financial accommodation made available or to be made available
to the Borrowers by the Lender under this Agreement is and
shall be made available on the terms and conditions contained
in the Trust Deed in addition to the terms and conditions of
this Agreement.
(b) Unless defined otherwise in this Agreement, terms defined in
the Trust Deed bear the same meaning when used in this
Agreement.
(c) The Lender confirms that it will be bound by any amendment
agreed to, or waiver given in respect of, the provisions of
the Trust Deed by the Trustee in accordance with the
instructions of the Majority Creditors or all Creditors as the
case requires in accordance with the terms of the amendment or
waiver as if it were party to the relevant amendment agreement
or had given the relevant waiver.
1.4 REPAYMENT AND PREPAYMENT
In this Agreement references to "payable", "repayment" or "prepayment"
(and like expressions) of:
(a) all or part of a Segment of a Xxxx Facility, means payment to
the Lender of the total face amount of all Bills comprising
the Segment or part;
(b) all or part of a Segment of a Cash Advance Facility, means
payment to the Lender of the principal amount of the relevant
Segment or part; and
(c) all or part of a Segment of the LC Facility, means payment to
the Lender of the whole or the relevant portion of the face
amount of the relevant Letter of Credit or the reduction,
expiry or cancellation of that Letter of Credit (if it has not
been drawn upon) if such reduction, expiry or cancellation
takes place on the due date for repayment or prepayment.
1.5 PRINCIPAL
References to "principal" or "principal amount" mean, in relation to a
Segment of:
(a) a Xxxx Facility, the aggregate face amount of all Bills
comprising that Segment or part;
(b) a Cash Advance Facility, the principal amount of that Segment
or part; and
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(c) the LC Facility, the aggregate maximum amount paid or
claimable (actually or contingently) under all Letters of
Credit comprising that Segment or part.
2. COMMITMENT
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Subject to this Agreement (including, without limitation, Clause 3 and
Clause 6.6) the Lender shall make the Facilities available to the
Borrowers but so that the aggregate Current Australian Dollar Value of
all outstanding Segments will not at any time exceed the Commitment.
3. CANCELLATION AND REVIEW OF COMMITMENT
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3.1 CANCELLATION DURING AVAILABILITY PERIOD
On giving not less than 7 Business Days' prior irrevocable notice to
the Lender, Xxxxxx'x Brewing Group may at any time cancel all or part
of the Undrawn Commitment. If part, unless the Lender otherwise agrees,
such part shall be in a minimum of A$10,000,000 and in an integral
multiple of A$10,000,000.
3.2 CANCELLATION AT END OF AVAILABILITY PERIOD
At the close of business on the last day of the Availability Period the
Commitment shall be cancelled.
3.3 PERIODIC REVIEW
The Borrowers and Xxxxxx'x Brewing Group acknowledge that the agreement
by the Lender to provide financial accommodation under this Agreement
and the fees payable to the Lender in connection therewith will be the
subject of periodic review by the Lender which the Lender will
undertake in good faith. The period for the review selected by the
Lender is each 12 months, with the first 12 month period commencing on
31 January 1997. A review may be conducted at any time during each 12
month period, but if for any reason the Lender is unable to carry out a
review within that period, it may carry out the review in the following
12 month period in addition to the further review that it would carry
out in that following period. No review will be conducted less than
three months after the previous review. Upon completion of a periodic
review, the Borrowers and Xxxxxx'x Brewing Group acknowledge and agree
that the Lender may:
(a) offer to extend the Availability Period by a further period of
12 months; or
(b) offer to vary the terms (including the fees) upon which the
Lender will provide financial accommodation under the
Agreement; or
(c) exercise its rights under paragraph (a) and paragraph (b) of
this Clause concurrently; or
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(d) decline to offer to extend the Availability Period for a
further period of 12 months.
3.4 EXTENSION OF REPAYMENT DATE
In addition to any extension of the Repayment Date that may occur as a
result of the operation of Clause 3.3, the parties may agree to extend
the Repayment Date at any time during the Availability Period.
3.5 FBG AUTHORISED TO AGREE VARIATIONS ON BORROWERS' BEHALF
Each of the Borrowers irrevocably authorises Xxxxxx'x Brewing Group to
agree on their behalf any variations to this Agreement with the Lender.
Any variation so agreed by Xxxxxx'x Brewing Group will bind the
Borrowers despite them not being party to any agreement or document
effecting the variation.
4. SELECTION OF FUNDING PERIODS
--------------------------------------------------------------------------------
(a) Subject to the subsequent provisions of this Clause, Funding
Periods selected by the relevant Borrower shall be of a period
of not less than 30 days and not more than 185 days or, if
required, such other period as the Lender may agree.
(b) Should a Funding Period end on a day which is not a Business
Day, such Funding Period shall be extended to the next
Business Day in the same calendar month or, if none, the
preceding Business Day.
(c) No Funding Period shall extend beyond the Repayment Date.
(d) If a Borrower fails to select Funding Periods complying with
this Clause the Lender may vary any Drawdown Notice to ensure
compliance.
5. REPAYMENT
--------------------------------------------------------------------------------
(a) Subject to Clauses 7.5, 8.5, 9.5, 10.5 11.8, 12.8 and 13.8 the
Borrowers shall repay each Segment on the last day of its
Funding Period.
(b) Notwithstanding Clauses 7.5, 8.5, 9.5, 10.5, 11.8, 12.8 and
13.8, all Principal Outstanding owing by a Borrower shall be
repaid by that Borrower on the Repayment Date together with
all other amounts owing by it under this Agreement.
6. PREPAYMENT AND CASH COVER
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6.1 VOLUNTARY PREPAYMENTS
(a) On giving not less than 7 days' prior irrevocable notice to
the Lender, a Borrower may prepay all or part of the Principal
Outstanding owing
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by that Borrower. The notice must specify the amount and date
of prepayment.
(b) Unless the Lender otherwise agrees, prepayment of part only of
a Segment may only be made in a principal amount of a minimum
of [pound]1,000,000, A$1,000,000, EUR1,000,000, NZ$1,000,000
or US$1,000,000 (as applicable) and an integral multiple of
[pound]1,000,000, A$1,000,000, EUR1,000,000, NZ$1,000,000 or
US$1,000,000 (as applicable).
(c) Amounts prepaid under this Clause 6.1 may be redrawn.
6.2 SPECIAL PREPAYMENTS
Each of the Borrowers and Xxxxxx'x Brewing Group acknowledges that the
Borrowers may be required to prepay the Facilities in accordance with
Clause 5.5 of the Trust Deed and that the Lender has entered into this
Agreement and made the Facilities available in reliance on Clause 5.5
of the Trust Deed.
6.3 LIMITATION ON PREPAYMENTS
No Borrower may prepay all or any part of the Principal Outstanding
except in accordance with this Agreement.
6.4 INTEREST, BREAK AND OTHER COSTS
Each Borrower shall pay any interest accrued on any amount prepaid
under this Agreement at the time of such prepayment, together with all
other amounts in relation to the amount prepaid, including but not
limited to all amounts which are payable by it under Clause 23 as a
result of the prepayment.
6.5 CASH COVER
(a) If a Borrower prepays all or part of a Segment of the LC
Facility or the Xxxx Facility by payment to the Lender of an
amount equal to the whole or the portion of the face amount of
the relevant Letter of Credit or the whole or the relevant
portion of the total face amount of all Bills comprising the
Segment or part, then that amount shall be held by the Lender
by way of cash cover for the Lender's relevant liability
(contingent or otherwise) in respect of the relevant Letter of
Credit or Bills and the provisions of Clause 5.3(c) of the
Trust Deed and, if subsequent to such prepayment the Lender or
the Trustee has exercised its rights under Clause 5.2(A) or
(B) of the Trust Deed, Clauses 5.3(d), (e) and (f) of the
Trust Deed shall apply to such amount as if, in the case of
paragraph (c), the reference to "this Deed including, without
limitation, under paragraph (a) or (b) of this Clause" were a
reference to this Clause 6.
(b) Unless under paragraph (a) the provisions of Clauses 5.3(d),
(e) and (f) of the Trust Deed apply to any amount of cash
cover provided under paragraph (a) in respect of a Segment,
the Lender shall repay the amount by which that amount of cash
cover (together with interest on that amount) exceeds the
total amount paid or payable by
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the Lender under the Bills or Letters of Credit comprising
such Segment, to the relevant Borrower on the last day of the
Funding Period for that Segment.
6.6 REPAYMENT OR CASH COVER
If on any four consecutive Business Days the aggregate of the Current
Australian Dollar Value of all Segments drawn under the Facilities is
greater than 120% of the Commitment as a result of movements in
currency rates then the Borrowers shall, upon the Lender's request, on
the second Business Day after the last of such four consecutive days:
(a) repay such Segments and/or parts of Segments in their
respective currencies in such aggregate principal amount; or
(b) deposit with the Lender by way of cash cover for the
liabilities of the Borrower to the Lender under this Agreement
an amount in Australian dollars,
so that after making the repayment or deposit the aggregate of the
Current Australian Dollar Value of all Segments drawn under the
Facilities (after deducting the amount of any such deposit) does not
exceed the Commitment as at the date of the repayment or deposit.
6.7 INTEREST
All amounts deposited with the Lender by way of cash cover under Clause
6.6(b) (and any interest on such amounts) shall accrue and be credited
interest at a rate and in the manner the Lender determines would apply
to deposits at call in accordance with its normal procedures.
6.8 APPLICATION
Without limiting any other provision of this Agreement, if the Lender
holds any deposit made under Clause 6.6 the Lender may at any time
after the occurrence of an Event of Default which would entitle the
Lender or the Trustee to make a declaration under Clause 5.2(A) or (B)
of the Trust Deed apply any such cash cover and/or any such interest in
payment of the Principal Outstanding and any other moneys then payable
by the Borrower which provided the cash cover to the Lender.
6.9 REPAYMENT OF CASH COVER
Any amount (or interest on such amount) deposited by way of cash cover
under Clause 6.6(b) shall, on request from the Borrower which deposited
it, be repaid to that Borrower no later than the second Business Day
following the date of the request which may only be given if the
aggregate of the Current Australian Dollar Value of all Segments drawn
under the Facilities has been not greater than the Commitment for a
period of four consecutive Business Days provided no Event of Default
which would entitle the Lender or the Trustee to make a declaration
under Clause 5.2(A) or (B) of the Trust Deed has occurred and, if such
an Event of Default has occurred, when the Principal Outstanding and
all other moneys owing to the Lender have been fully and finally paid.
FACILITY AGREEMENT
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6.10 NOTIFICATION OF AMOUNT
The Lender which holds any deposit made under Clause 6.6 shall notify
Xxxxxx'x Brewing Group of the amount of the Current Australian Dollar
Value (on any day) of the Segments as soon as practicable after it is
ascertained whenever requested to do so by Xxxxxx'x Brewing Group.
7. STERLING CASH ADVANCE FACILITY
--------------------------------------------------------------------------------
7.1 ADVANCE OF SEGMENT
(a) Subject to this Agreement, whenever Treasury UK requests a
Segment of the Sterling Cash Facility, the Lender will
(through its Lending Office in the United Kingdom) make
available that Segment to such account as may be notified to
the Lender by Treasury UK on the relevant Drawdown Date in
Same Day Funds in Sterling.
(b) Unless otherwise agreed, a request by Treasury UK for a
Segment of the Sterling Cash Facility may be made by
telephone, shall be made prior to 10.00 a.m. (London time) on
the date on which the relevant Segment is to be made available
(which shall be a Business Day) and shall be followed as soon
as practicable by a Drawdown Notice substantially in the form
of Annexure A from Treasury UK to the Lender. Any Telephone
Request shall contain the details required in the Drawdown
Notice and shall be irrevocable.
(c) The principal amount of each Segment of the Sterling Cash
Facility shall be a minimum of:
(i) [pound]2,000,000; or
(ii) the Sterling equivalent (determined at the Exchange
Rate as at the Drawdown Date) of the Undrawn
Commitment (if less than [pound]2,000,000); or
(iii) such other amount as the Lender may agree,
and shall be a multiple of [pound]1,000,000 and shall not
cause a breach of Clause 2.
7.2 INTEREST RATE AND NOTIFICATION
(a) Interest shall accrue from day to day on each Segment of the
Sterling Cash Facility for each Funding Period at the rate per
annum agreed between the Lender and Treasury UK at the time of
a request for a Segment or, in the absence of such agreement,
the rate per annum determined by the Lender to be the
aggregate of the Margin, LIBOR and the additional amount
referred to in Clause 7.6 for such Funding Period.
(b) If applicable, the Lender shall notify Treasury UK of the
interest rate determined by it under this Clause as soon as it
is ascertained.
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7.3 BASIS OF CALCULATION OF INTEREST
Interest under Clause 7.2 shall accrue from day to day and shall be
computed on the basis of the actual number of days elapsed and a year
of 365 days or 366 days (as the case may be).
7.4 PAYMENT OF INTEREST
Except where this Agreement provides otherwise, Treasury UK shall pay
such accrued interest in Sterling on the last day of the relevant
Funding Period.
7.5 NETTING OFF
If Treasury UK requests a new Segment of the Sterling Cash Advance
Facility on the last day of a Funding Period of an old Segment of that
Facility, then only the net amount between:
(a) the funds required to be provided by the Lender for the
account of Treasury UK in relation to that new Segment; and
(b) the funds payable by Treasury UK for the account of the Lender
by way of repayment of the old Segment,
need be paid or made available, as the case may be.
7.6 ADDITIONAL DOMESTIC STERLING COSTS
(a) Whenever Treasury UK is obliged to pay interest in respect of
any amount under this Agreement denominated in domestic
Sterling, it shall pay the additional amount advised by the
Lender to be the direct or indirect costs of complying with
the requests or requirements of the Bank of England or other
competent authority in relation to monetary controls or
liquidity requirements with respect to the funding of such
amount.
(b) Such additional amount shall be determined by the Lender in
accordance with the Second Schedule, as amended by the Lender
(after consultation with Treasury UK) if there is any change
in relevant requirements.
8. A$ CASH ADVANCE FACILITY
--------------------------------------------------------------------------------
8.1 ADVANCE OF SEGMENT
(a) Subject to this Agreement, whenever Treasury Aust. requests a
Segment of the A$ Cash Advance Facility, the Lender will make
available that Segment to such account as may be notified to
the Lender by Treasury Aust. on the relevant Drawdown Date in
Same Day Funds in Australian Dollars.
(b) Unless otherwise agreed, a request by Treasury Aust. for a
Segment of the A$ Cash Advance Facility may be made by
telephone, shall be made prior to 11.00 a.m. (Melbourne time)
on the date on which the
FACILITY AGREEMENT
--------------------------------------------------------------------------------
relevant Segment is to be made available (which shall be a
Business Day) and shall be followed as soon as practicable by
a Drawdown Notice substantially in the form of Annexure B from
Treasury Aust. to the Lender. Any Telephone Request shall
contain the details required in the Drawdown Notice and shall
be irrevocable.
(c) The principal amount of each Segment of the A$ Cash Advance
Facility shall be a minimum of:
(i) A$5,000,000;
(ii) the Undrawn Commitment (if less than the
A$5,000,000); or
(iii) such other amount as the Lender may agree,
and shall be a multiple of A$5,000,000 and shall not cause a
breach of Clause 2.
8.2 INTEREST RATE AND NOTIFICATION
(a) Interest shall accrue from day to day on each Segment of the
A$ Cash Advance Facility for each Funding Period at the rate
per annum agreed between the Lender and Treasury Aust. at the
time of a request for a Segment or, in the absence of such
agreement, the rate per annum determined by the Lender to be
the aggregate of the Margin and the Bank Xxxx Rate for such
Funding Period.
(b) If applicable, the Lender shall notify Treasury Aust. of the
interest rate determined by it under this Clause as soon as it
is ascertained.
8.3 BASIS OF CALCULATION OF INTEREST
Interest under Clause 8.2 shall accrue from day to day and shall be
computed on the basis of the actual number of days elapsed and a year
of 365 days or 366 days (as the case may be).
8.4 PAYMENT OF INTEREST
Except where this Agreement provides otherwise, Treasury Aust. shall
pay such accrued interest in Australian dollars on the last day of the
relevant Funding Period.
8.5 NETTING OFF
If Treasury Aust. requests a new Segment of the A$ Cash Advance
Facility on the last day of a Funding Period of an old Segment of that
Facility, then only the net amount between:
(a) the funds required to be provided by the Lender for the
account of Treasury Aust. in relation to that new Segment; and
(b) the funds payable by Treasury Aust. for the account of the
Lender by way of repayment of the old Segment,
need be paid or made available, as the case may be.
FACILITY AGREEMENT
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9. US$ CASH ADVANCE FACILITY
--------------------------------------------------------------------------------
9.1 ADVANCE OF SEGMENT
(a) Subject to this Agreement, whenever Treasury USA requests a
Segment of the US$ Cash Advance Facility the Lender will
(through its Lending Office in the United States of America)
make available that Segment to such account as may be notified
to the Lender by Treasury USA on the relevant Drawdown Date in
Same Day Funds in US dollars.
(b) Unless otherwise agreed, a request by Treasury USA for a
Segment of the US$ Cash Advance Facility may be made by
telephone, shall be made prior to 10.00 a.m. (New York City
time) on the date on which the relevant Segment is to be made
available (which shall be a Business Day) and shall be
followed as soon as practicable by a Drawdown Notice
substantially in the form of Annexure C from Treasury USA to
the Lender. Any Telephone Request shall contain the details
required in the Drawdown Notice and shall be irrevocable.
(c) The principal amount of each Segment of the US$ Cash Advance
Facility shall be a minimum of:
(i) US$5,000,000;
(ii) the US dollar equivalent (determined at the Exchange
Rate as at the Drawdown Date) of the Undrawn
Commitment (if less than US$5,000,000); or
(iii) such other amount as the Lender may agree,
and shall be a multiple of US$5,000,000 and shall not cause a
breach of Clause 2.
9.2 INTEREST RATE AND NOTIFICATION
(a) Interest shall accrue from day to day on each Segment of the
US$ Cash Advance Facility for each Funding Period at the rate
per annum agreed between the Lender and Treasury USA at the
time of a request for a Segment or, in the absence of such
agreement, the rate per annum determined by the Lender to be
the aggregate of the Margin and LIBOR for such Funding Period.
(b) If applicable, the Lender shall notify Treasury USA of the
interest rate determined by it under this Clause as soon as it
is ascertained.
9.3 BASIS OF CALCULATION OF INTEREST
Interest under Clause 9.2 shall accrue from day to day and shall be
computed on the basis of the actual number of days elapsed and a year
of 360 days.
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9.4 PAYMENT OF INTEREST
Except where this Agreement provides otherwise, Treasury USA shall pay
such accrued interest in US dollars on the last day of the relevant
Funding Period.
9.5 NETTING OFF
If Treasury USA requests a new Segment of the US$ Cash Advance Facility
on the last day of a Funding Period of an old Segment of that Facility,
then only the net amount between:
(a) the funds required to be provided by the Lender for the
account of Treasury USA in relation to that new Segment; and
(b) the funds payable by Treasury USA for the account of the
Lender by way of repayment of the old Segment,
need be paid or made available, as the case may be.
10. EURO CASH ADVANCE FACILITY
--------------------------------------------------------------------------------
10.1 ADVANCE OF SEGMENT
(a) Subject to this Agreement, whenever Treasury Europe or
Treasury UK requests a Segment of the Euro Cash Advance
Facility, the Lender will (through its Lending Office in the
United Kingdom) make available that Segment to such account as
may be notified to the Lender by the relevant Borrower on the
relevant Drawdown Date in Same Day Funds in Euros.
(b) Unless otherwise agreed, a request by Treasury Europe or
Treasury UK for a Segment of the Euro Cash Advance Facility
may be made by telephone, shall be made prior to 11.00am
(Amsterdam time) 2 Business Days before the date on which the
Relevant Segment is to be made available or such other period
as may be agreed between the relevant Borrower and the Lender
(which shall be a Business Day) and shall be followed as soon
as practicable by a Drawdown Notice substantially in the form
of Annexure G from the relevant Borrower to the Lender. Any
telephone request shall contain the details required in the
Drawdown Notice and shall be irrevocable.
(c) The principal amount of each Segment of the Euro Cash Advance
Facility shall be a minimum of:
(i) EUR 5,000,000; or
(ii) the Euro equivalent (determined at the Exchange Rate
as at the Drawdown Date) of the Undrawn Commitment
(if less EUR 5,000,000); or
(iii) such other amount as the Lender may agree,
and shall be a multiple of EUR 5,000,000 and shall not cause a
breach of Clause 2.
FACILITY AGREEMENT
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10.2 INTEREST RATE AND NOTIFICATION
(a) Interest shall accrue from day to day on each Segment of the
Euro Cash Advance Facility for each Funding Period at the rate
per annum determined by the Lender to the aggregate of the
Margin and Euro Libor for such Funding Period.
(b) If applicable, the Lender shall notify Treasury Europe or
Treasury UK, as applicable, of the interest rate determined by
it under this Clause as soon as it is ascertained.
10.3 BASIS OF CALCULATION OF INTEREST
Interest under Clause 10.2 shall accrue from day to day and shall be
computed on the basis of the actual number of days elapsed and a year
of 360 days.
10.4 PAYMENT OF INTEREST
Except where this Agreement provides otherwise, Treasury Europe or
Treasury UK, as applicable, shall pay such accrued interest in Euros on
the last day of the relevant Funding Period.
10.5 NETTING OFF
If Treasury Europe or Treasury UK requests a new Segment of the Euro
Cash Advance Facility on the last day of a Funding Period of an old
Segment of that Facility, then only the net amount between:
(a) the funds required to be provided by the Lender for the
account of relevant Borrower in relation to that new Segment;
and
(b) the funds payable by Treasury Europe or Treasury UK, as
applicable, for the account of the Lender by way of repayment
of the old Segment, need be paid or made available, as the
case may be.
11. NZ$ CASH ADVANCE FACILITY
--------------------------------------------------------------------------------
11.1 ADVANCE OF SEGMENT
(a) Subject to this Agreement, whenever Treasury NZ requests a
Segment of the NZ$ Cash Advance Facility, the Lender (through
its lending office in Australia or through a lending office in
New Zealand details of which are to be provided to Xxxxxx'x
Brewing Group Limited or Treasury NZ) will make available that
Segment to such account as may be notified to the Lender by
Treasury NZ on the relevant Drawdown Date in Same Day Funds in
NZ Dollars.
(b) Unless otherwise agreed, a request by Treasury NZ for a
Segment of the NZ$ Cash Advance Facility may be made by
telephone, shall be made prior to 11.00 a.m. (Auckland time) 2
Business Days before, or such other period as may be agreed
between Treasury NZ and the Lender, the date on which the
relevant Segment is to be made available (which shall be a
Business Day) and shall be followed as
FACILITY AGREEMENT
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soon as practicable by a Drawdown Notice substantially in the
form of Annexure D from Treasury NZ to the Lender. Any
Telephone Request shall contain the details required in the
Drawdown Notice and shall be irrevocable.
(c) The principal amount of each Segment of the NZ$ Cash Advance
Facility shall be a minimum of:
(i) NZ$5,000,000;
(ii) the NZ dollar equivalent (determined at the Exchange
Rate as at the Drawdown Date) of the Undrawn
Commitment (if less than the NZ$5,000,000); or
(iii) such other amount as the Lender may agree,
and shall be a multiple of NZ$5,000,000 and shall not cause a
breach of Clause 2.
11.2 INTEREST RATE AND NOTIFICATION
(a) Interest shall accrue from day to day on each Segment of the
NZ$ Cash Advance Facility for each Funding Period at the rate
per annum agreed between the Lender and Treasury NZ at the
time of a request for a Segment or, in the absence of such
agreement, the rate per annum determined by the Lender to be
the aggregate of the Margin and the NZ Bank Xxxx Rate for such
Funding Period.
(b) If applicable, the Lender shall notify Treasury NZ of the
interest rate determined by it under this Clause as soon as it
is ascertained.
11.3 BASIS OF CALCULATION OF INTEREST
Interest under Clause 11.2 shall accrue from day to day and shall be
computed on the basis of the actual number of days elapsed and a year
of 365 days or 366 days (as the case may be).
11.4 PAYMENT OF INTEREST
Except where this Agreement provides otherwise, Treasury NZ shall pay
such accrued interest in NZ dollars on the last day of the relevant
Funding Period.
11.5 NETTING OFF
If Treasury NZ requests a new Segment of the NZ$ Cash Advance Facility
on the last day of a Funding Period of an old Segment of that Facility,
then only the net amount between:
(a) the funds required to be provided by the Lender for the
account of Treasury NZ in relation to that new Segment; and
(b) the funds payable by Treasury NZ for the account of the Lender
by way of repayment of the old Segment,
need be paid or made available, as the case may be.
FACILITY AGREEMENT
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12. XXXXXXXX XXXX FACILITY
--------------------------------------------------------------------------------
12.1 COMMITMENT
(a) Subject to this Agreement, whenever Treasury UK requests a
Segment of the Xxxxxxxx Xxxx Facility, the Lender shall
(through its Lending Office in the United Kingdom) at the
option of Treasury UK:
(i) accept Bills drawn by Treasury UK expressed to mature
not later than the Repayment Date; and
(ii) if so requested by Treasury UK, discount such Bills.
(b) Unless otherwise agreed, a request by Treasury UK for a
Segment of the Xxxxxxxx Xxxx Facility may be made by
telephone, shall be made prior to 10.00 a.m. (London time) on
the date upon which the relevant Segment is to be made
available (which shall be a Business Day) and shall be
followed as soon as practicable by a Drawdown Notice
substantially in the form of Annexure A from Treasury UK to
the Lender. Any Telephone Request shall contain the details
required in the Drawdown Notice and shall be irrevocable.
(c) The principal amount of each Segment of the Xxxx Facility
shall be a minimum of:
(i) [pound]2,000,000;
(ii) the Sterling
equivalent (determined at the Exchange Rate as at
the Drawdown Date) of the Undrawn Commitment (if
less than [pound]2,000,000); or
(iii) such other amount as the Lender may agree,
and shall not cause a breach of Clause 2.
(d) Where the Lender receives a Sterling Drawdown Notice
substantially in the form of Annexure A and the acceptance by
the Lender of a Xxxx or Bills pursuant to that Drawdown Notice
would cause the Lender to exceed the maximum limit for UK
acceptances agreed with the Bank of England the Lender may
wholly or partially decline the Drawdown Notice and provide
Treasury UK with a Segment under the Sterling Cash Advance
Facility equivalent to the amount declined. The amount
declined shall only be the amount exceeding the maximum limit
for UK acceptances agreed with the Bank of England.
12.2 REQUIREMENTS OF BILLS
Each Xxxx shall be in a form which, when completed, may be discounted
by the Bank of England and which is acceptable to the Lender and shall
be prepared in accordance with the following.
(a) Each Xxxx shall be expressed to be payable at the Lender's
Lending Office in the United Kingdom or such other office of
the Lender in the United Kingdom as the Lender shall notify
Treasury UK from time to time.
FACILITY AGREEMENT
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(b) The face amount of each Xxxx shall to the extent possible be
[pound]500,000 or such other amount as the Lender and Treasury
UK may agree.
(c) The maturity date of each Xxxx shall be the last day of the
Funding Period of the relevant Segment.
(d) Each Xxxx shall be:
(i) where the Lender is requested to accept and discount
Bills, drawn by Treasury UK and signed by an
Authorised Officer of Treasury UK or, if Treasury UK
so requests, by an Authorised Officer of the Lender
on behalf of Treasury UK, and completed so that the
space reserved for the name of the payee is left
blank, in which case Treasury UK authorises the
Lender to complete the Xxxx by inserting as payee the
name of the Lender or such other person who is to
purchase the Xxxx; or
(ii) where the Lender is requested to accept Bills only,
drawn by Treasury UK and signed by its Authorised
Officer or, if Treasury UK so requests, by an
Authorised Officer of the Lender and payable to
Treasury UK and endorsed by Treasury UK for delivery
to the proposed purchaser of the Xxxx,
and, in either case, enfaced with a clause stating it has been
drawn under this Agreement.
(e) If necessary, Treasury UK shall cause each Xxxx to be stamped
with any applicable stamp duty.
(f) Treasury UK shall ensure that at all times there are lodged
with the Lender at its London Office in the UK sufficient
Bills denominated in Sterling to enable the Lender to comply
with its obligations to accept Bills under this Clause 12.
12.3 AUTHORITY
Treasury UK authorises the Lender upon receipt by the Lender of a
request from Treasury UK to provide a Segment under the Xxxxxxxx Xxxx
Facility, to prepare, sign (by its Authorised Officer) as the case may
require, complete (including inserting the issue date and maturity
date) and deliver Bills in accordance with this Clause 12 and to alter
any non-complying Bills delivered if:
(a) Treasury UK fails to prepare Bills in accordance with this
Agreement; or
(b) Treasury UK requests the Lender so to do in the relevant
Drawdown Notice.
12.4 ACCEPTANCE
(a) The Lender shall on each day that it is requested to accept
(but not discount) Bills under this Clause:
FACILITY AGREEMENT
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(i) select a Xxxx or Bills from the incomplete Bills so
lodged with it and accept the Bills;
(ii) complete the Xxxx or Bills if so required pursuant to
Clause 12.3 and insert as payee Treasury UK and, if
authorised to do so in the relevant Drawdown Notice,
have one of its Authorised Officers endorse the Bills
on behalf of Treasury UK; and
(iii) deliver the Bills to the person nominated in the
relevant Drawdown Notice.
(b) Treasury UK shall on each such day on which the Lender accepts
a Xxxx pursuant to this Clause 12 pay to the Lender an
acceptance fee equal to the Margin, to be calculated on a
daily basis on the face amount of each Xxxx from the date it
was accepted to (but excluding) its maturity date.
12.5 ACCEPTANCE AND DISCOUNT
The Lender shall on each day that it is requested to accept and
discount Bills under this Clause:
(a) select a Xxxx or Bills from the incomplete Bills so lodged
with it and accept the Bills;
(b) complete the Xxxx or Bills if so required pursuant to Clause
12.3 and insert as payee itself or such other person who is to
purchase those Bills; and
(c) discount those Bills and (subject to Clause 12.8) pay in Same
Day Funds on that Drawdown Date to the account notified to the
Lender by Treasury UK an amount equal to the aggregate of the
face amount of each Xxxx less the aggregate of:
(i) a discount amount for each Xxxx determined by the
Lender calculated by reference to the rate per annum
agreed between the Lender and Treasury UK at the time
of the request for the Segment or, in the absence of
such agreement, by reference to the Eligible Sterling
Discount Rate for the relevant Funding Period;
(ii) an acceptance fee equal to the Margin on that day, to
be calculated on a daily basis on the face amount of
each Xxxx from the date it was accepted to (but
excluding) the date it falls due for payment; and
(iii) any applicable stamp duty or other documentary or
transaction Tax (including, without limitation,
financial institutions duty) payable by the Lender on
or in respect of each Xxxx or any payment, receipt or
crediting of an account which is contemplated by this
Clause 12.
The Lender may at any time sell to any person(s) any Xxxx(s) so
purchased by it and shall be entitled to retain for its own account the
proceeds of any such sale.
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12.6 INDEMNITY
(a) Without prejudice to the obligation to provide cash cover
under Clause 12.7, Treasury UK shall indemnify and keep
indemnified the Lender against all liabilities of the Lender
as acceptor of any Bills, but Treasury UK shall not be
required to pay any amount in excess of the face amount of the
relevant Xxxx to the extent the relevant liability was
incurred as a result of the fraud or wilful default of the
Lender.
(b) The Lender will have the right to call for any evidence of the
trade underlying any such Xxxx which it may reasonably
request. Treasury UK shall promptly comply with that request.
12.7 CASH COVER
As between the Lender and Treasury UK, Treasury UK shall be primarily
liable in respect of all Bills and accordingly:
(a) the liability of Treasury UK with respect to any Xxxx shall
not be taken to have been discharged by reason of the Lender
becoming the holder of that Xxxx before, on or after its
maturity; and
(b) subject to Clause 12.8 Treasury UK shall, not later than 11.00
a.m. (London time) on each day on which a Xxxx accepted or
accepted and discounted on its account falls due for payment,
pay to the Lender an amount equal to the face amount of such
Xxxx.
12.8 NETTING OFF
If Treasury UK requests a new Segment under which the Lender is to
accept and discount the Bills comprising that Segment on the last day
of a Funding Period of an old Segment under which the Lender had
accepted and discounted Bills then only the net amount between:
(a) the funds required to be provided by the Lender for the
account of Treasury UK in relation to that new Segment; and
(b) the funds payable by Treasury UK for the account of the Lender
by way of repayment of the old Segment,
need be paid or made available, as the case may be.
13. A$ XXXX FACILITY
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13.1 COMMITMENT
(a) Subject to this Agreement, whenever Treasury Aust. requests a
Segment of the A$ Xxxx Facility, the Lender shall at the
option of Treasury Aust.:
(i) accept Bills drawn by Treasury Aust. expressed to
mature not later than the Repayment Date; and
(ii) if so requested by Treasury Aust., discount such
Bills.
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(b) Unless otherwise agreed, a request by Treasury Aust. for a
Segment of the A$ Xxxx Facility may be made by telephone,
shall be made prior to 10.00 a.m. (Melbourne time) on the date
upon which the relevant Segment is to be made available (which
shall be a Business Day) and shall be followed as soon as
practicable by a Drawdown Notice substantially in the form of
Annexure B from Treasury Aust. to the Lender. Any Telephone
Request shall contain the details required in the Drawdown
Notice and shall be irrevocable.
(c) The principal amount of each Segment of the Xxxx Facility
shall be a minimum of:
(i) A$5,000,000;
(ii) the Undrawn Commitment (if less than A$5,000,000); or
(iii) such other amount as the Lender may agree,
and shall not cause a breach of Clause 2.
13.2 REQUIREMENTS OF BILLS
Each Xxxx shall be in a form which is acceptable to the Lender and
shall be prepared in accordance with the following.
(a) Each Xxxx shall be expressed to be payable at the Lender's
Australian Lending Office or such other office of the Lender
in Australia as the Lender shall notify Treasury Aust. from
time to time.
(b) The face amount of each Xxxx shall to the extent possible be
A$500,000, A$1,000,000 or A$5,000,000 or such other amount as
the Lender and Treasury Aust. may agree.
(c) The maturity date of each Xxxx shall be the last day of the
Funding Period of the relevant Segment.
(d) Each Xxxx shall be:
(i) where the Lender is requested to accept and discount
Bills, drawn by Treasury Aust. and signed by an
Authorised Officer of Treasury Aust. or, if Treasury
Aust. so requests, by an Authorised Officer of the
Lender on behalf of Treasury Aust., and completed so
that the space reserved for the name of the payee is
left blank, in which case Treasury Aust. authorises
the Lender to complete the Xxxx by inserting as payee
the name of the Lender or such other person who is to
purchase the Xxxx; or
(ii) where the Lender is requested to accept Bills only,
drawn by Treasury Aust. and signed by its Authorised
Officer or, if Treasury Aust. so requests, by an
Authorised Officer of the Lender and payable to
Treasury Aust. and endorsed by Treasury Aust. for
delivery to the proposed purchaser of the Xxxx.
(e) If necessary, Treasury Aust. shall cause each Xxxx to be
stamped with any applicable stamp duty.
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13.3 AUTHORITY
Treasury Aust. authorises the Lender upon receipt by the Lender of a
request from Treasury Aust. to provide a Segment under the A$ Xxxx
Facility, to prepare, sign (by its Authorised Officer) as the case may
require, complete (including inserting the issue date and maturity
date) and deliver Bills in accordance with this Clause 13 and to alter
any non-complying Bills delivered if:
(a) Treasury Aust. fails to prepare Bills in accordance with this
Agreement; or
(b) Treasury Aust. requests the Lender so to do in the relevant
Drawdown Notice.
13.4 ACCEPTANCE
(a) The Lender shall on each day that it is requested to accept
(but not discount) Bills under this Clause:
(i) select a Xxxx or Bills from the incomplete Bills so
lodged with it and accept the Bills;
(ii) complete the Xxxx or Bills if so required pursuant to
Clause 13.3 and insert as payee Treasury Aust. and,
if authorised to do so in the relevant Drawdown
Notice, have one of its Authorised Officers endorse
the Bills on behalf of Treasury Aust.; and
(iii) deliver the Bills to the person nominated in the
relevant Drawdown Notice.
(b) Treasury Aust. shall on each such day on which the Lender
accepts a Xxxx pursuant to this Clause 13 pay to the Lender an
acceptance fee equal to the Margin, to be calculated on a
daily basis on the face amount of each Xxxx from the date it
was accepted to (but excluding) its maturity date.
13.5 ACCEPTANCE AND DISCOUNT
The Lender shall on each day that it is requested to accept and
discount Bills under this Clause:
(a) select a Xxxx or Bills from the incomplete Bills so lodged
with it and accept the Bills;
(b) complete the Xxxx or Bills if so required pursuant to Clause
13.3 and insert as payee itself or such other person who is to
purchase those Bills; and
(c) discount those Bills and (subject to Clause 13.8) pay in Same
Day Funds on that Drawdown Date to the account notified to the
Lender by Treasury Aust. an amount equal to the aggregate of
the face amount of each Xxxx less the aggregate of:
(i) a discount amount for each Xxxx determined by the
Lender calculated by reference to the rate per annum
agreed between
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the Lender and Treasury Aust. at the time of the
request for the Segment or, in the absence of such
agreement, by reference to the Bank Xxxx Rate for the
relevant Funding Period;
(ii) an acceptance fee equal to the Margin on that day, to
be calculated on a daily basis on the face amount of
each Xxxx from the date it was accepted to (but
excluding) the date it falls due for payment; and
(iii) any applicable stamp duty or other documentary or
transaction Tax (including, without limitation,
financial institutions duty) payable by the Lender on
or in respect of each Xxxx or any payment, receipt or
crediting of an account which is contemplated by this
Clause 13.
The Lender may at any time sell to any person(s) any Xxxx(s) so
purchased by it and shall be entitled to retain for its own account the
proceeds of any such sale.
13.6 INDEMNITY
Without prejudice to the obligation to provide cash cover under Clause
13.7, Treasury Aust. shall indemnify and keep indemnified the Lender
against all liabilities of the Lender as acceptor of any Bills, but
Treasury Aust. shall not be required to pay any amount in excess of the
face amount of the relevant Xxxx to the extent the relevant liability
was incurred as a result of the fraud or wilful default of the Lender.
13.7 CASH COVER
As between the Lender and Treasury Aust., Treasury Aust. shall be
primarily liable in respect of all Bills and accordingly:
(a) the liability of Treasury Aust. with respect to any Xxxx shall
not be taken to have been discharged by reason of the Lender
becoming the holder of that Xxxx before, on or after its
maturity; and
(b) subject to Clause 13.8 Treasury Aust. shall, not later than
11.00 a.m. (Melbourne time) on each day on which a Xxxx
accepted or accepted and discounted on its account falls due
for payment, pay to the Lender an amount equal to the face
amount of such Xxxx.
13.8 NETTING OFF
If Treasury Aust. requests a new Segment under which the Lender is to
accept and discount Bills comprising that Segment on the last day of a
Funding Period of an old Segment under which the Lender had accepted
and discounted Bills then only the net amount between:
(a) the funds required to be provided by the Lender for the
account of Treasury Aust. in relation to that new Segment; and
(b) the funds payable by Treasury Aust. for the account of the
Lender by way of repayment of the old Segment,
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need be paid or made available, as the case may be.
14. LC FACILITY
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14.1 ISSUE
(a) Subject to this Agreement, whenever a Borrower or a Group
Nominee requests a Segment utilising the LC Facility the
Lender shall issue for the account of a Borrower or a Group
Nominee the Letters of Credit referred to in the relevant
Drawdown Notice substantially in the form of Annexure E on the
relevant Drawdown Date.
(b) Notwithstanding Clause 14.1(a) the Lender shall not be
required to issue a Letter of Credit under the LC Facility in
favour of any member of the Group.
14.2 FORM
Each Letter of Credit shall be substantially in the form of Annexure F
or such other form as the Bank and the Borrower agree.
14.3 EXPIRY DATE
Each Letter of Credit will expire on the last day of the Funding Period
of the relevant Segment specified in the relevant Drawdown Notice,
which shall be not later than the date 5 Business Days after the final
maturity date of the relevant Secured Financing.
14.4 AMOUNT
(a) (LIMITS): The face amount of any Letter of Credit shall be a
minimum of A$5,000,000, US$5,000,000 EUR 5,000,000,
NZ$5,000,000 or [pound]2,000,000 or such other amount in such
Other Currency as may be agreed with the Lender (as
applicable) and shall not cause a breach of the limits in
Clause 2.
(b) (FACE AMOUNT): The maximum face amount of each Letter of
Credit on issue shall not exceed:
(i) the maximum liability of the relevant Borrower or
Group Nominee for repayment of principal under the
relevant Secured Financing;
(ii) accrued interest or amounts in the nature of interest
relevant to the principal amount outstanding under
the relevant Secured Financing for the period up
until the expiry date of the Letter of Credit at that
time; and
(iii) other amounts relevant to the principal amount of the
Secured Financing which as at the date of issue are
quantifiable.
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14.5 CURRENCY CONVERSION
Notwithstanding that the face amount of a Letter of Credit shall be
expressed in Australian dollars, US dollars, Euros, NZ dollars or
Sterling, a Letter of Credit may (if requested in the relevant Drawdown
Notice) contain a provision allowing the Beneficiary to draw the agreed
Other Currency equivalent (determined at the exchange rate provided for
in the Letter of Credit as at the Drawdown Date) of that amount.
14.6 PAYMENT OF SECURED FINANCINGS
Each Borrower shall duly and punctually pay all principal, interest and
other amounts due and payable under or in relation to each Secured
Financing to which it is a party.
14.7 INDEMNITY
(a) (PAYMENT): Each Borrower shall on demand pay to the Lender all
amounts paid or required to be paid by the Lender under any
Letter of Credit issued for its account.
(b) (GENERAL INDEMNITY): Each Borrower shall on demand indemnify
the Lender from and against all loss, liabilities, damage,
costs, charges and expenses suffered or incurred by the Lender
(otherwise than arising solely as a result of a default by the
Lender) in relation to or arising out of any claim made or
purported to be made under any Letter of Credit issued for its
account or that of any Group Nominee nominated by it or
anything done by any person who is or claims to be entitled to
the benefit of any such Letter of Credit or that of any Group
Nominee nominated by it.
(c) (COVER IN ANOTHER CURRENCY):
(i) Each Borrower acknowledges that although the Lender
may be making a payment under or in relation to a
Letter of Credit issued on its account or that of any
Group Nominee nominated by it in Australian dollars,
US dollars, Euros, Sterling, NZ dollars or Other
Currency (as applicable), it may be purchasing the
necessary currency with another currency.
(ii) Accordingly, if required by the Lender, the relevant
Borrower shall pay to the Lender the amount of the
currency which the Lender certifies that it used to
purchase the Australian dollars, US dollars, Euros,
Sterling, NZ dollars or Other Currency, paid by it or
required to be paid by it under or in relation to any
Letter of Credit.
14.8 REINSTATEMENT OF OBLIGATIONS
If all or any part of any amount paid by a Borrower to the Lender under
this Clause 14 is required to be surrendered, released or repaid by the
Lender for any reason whatsoever, then the Lender shall be entitled to
all rights it would have had if such sum had never been paid by such
Borrower.
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14.9 OBLIGATIONS UNCONDITIONAL
Each Borrower agrees that its obligations under Clause 14.7 shall be
absolute and unconditional and shall not be subject to any reduction,
termination or other impairment by any set-off, deduction,
counterclaim, agreement, defence, suspension, deferment or otherwise
and each Borrower shall not be released, relieved or discharged from
any obligations under this Agreement, nor shall such obligations be
prejudiced or affected by any reason including without limitation:
(a) any falsity, inaccuracy, insufficiency or forgery of or in any
demand, certificate or declaration or other document which on
its face purports to be signed or authorised pursuant to a
Letter of Credit;
(b) any failure by the Lender to enquire whether any cable or
telex has been inaccurately transmitted or received from any
cause or has been sent by an unauthorised person;
(c) the impossibility or illegality of performance of or any
invalidity of or affecting any Relevant Document, any Secured
Financing or any Letter of Credit or any other agreement;
(d) any act of any Governmental Agency or arbitrator, including
any law, judgment, decree or order at any time in effect in
any jurisdiction affecting any of the terms of any Relevant
Document, any Secured Financing or any other document
delivered pursuant to any Relevant Document;
(e) any failure to obtain any Authorisation necessary or
appropriate in connection with this Agreement; or
(f) any other cause or circumstance, foreseen or unforeseen,
whether similar or dissimilar to any of the above affecting
any Relevant Document, any Secured Financing or any
transaction under any Relevant Document,
and the Lender shall not be liable or under any duty to enquire in
respect of any of the matters mentioned in the preceding paragraphs of
this Clause.
15. OTHER CURRENCIES
--------------------------------------------------------------------------------
(a) The Lender may agree with Xxxxxx'x Brewing Group to provide a
Borrower with Segments comprising cash advances denominated in
a currency (NEW CURRENCY) other than the currency in which the
Lender is obliged to provide any Segments comprising cash
advances to the Borrower under this Agreement.
(b) If such an agreement is made, no such Segments shall be
provided until the Lender and Xxxxxx'x Brewing Group have
entered into an agreement supplementing this Agreement and
setting out in relation to Segments to be denominated in the
New Currency:
(i) the Lending Office through which the Segments will be
provided;
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(ii) the form of drawdown notice and the time by which
such notice requesting such Segments must be given;
(iii) the time by which the Segment must be provided by the
Lender to the relevant Borrower;
(iv) the minimum amounts of the Segments;
(v) the duration of the Funding Periods for such Segments
for the purposes of Clause 4;
(vi) the Borrower's repayment obligations in relation to
such Segments for the purposes of Clause 5;
(vii) the minimum amount and integral multiples for the
prepayment of such Segments for the purposes of
Clause 6.1;
(viii) the reference interest rate applicable to such
Segments, the basis of calculation of interest on
such Segments and when the interest is to be paid;
and
(ix) such other matters in relation to such Segments as
the Lender and Xxxxxx'x Brewing Group consider
desirable in relation to such Segments.
(c) The supplemental agreement may be entered into by any
Authorised Officer of the Lender and any Authorised Officer of
Xxxxxx'x Brewing Group.
16. TELEPHONE REQUESTS AND DRAWDOWN NOTICES
--------------------------------------------------------------------------------
(a) Telephone Requests and Drawdown Notices given by a Borrower to
the Lender under a Facility shall be given to the Lending
Office which is making the Segment available under the
relevant Facility.
(b) If there is any inconsistency between a Telephone Request and
any corresponding Drawdown Notice, the Telephone Request shall
prevail.
(c) If there is any inconsistency between a Telephone Request and
any corresponding Drawdown Notice, the Lender shall contact
the Borrower immediately it becomes aware of the inconsistency
and seek verification of the Drawdown Notice details from the
Borrower.
(d) The Lender shall comply with any direction given by the
Borrower in relation to the inconsistency between the
Telephone Request and the Drawdown Notice.
(e) The Borrower shall indemnify the Lender on demand against any
loss, cost or expense the Lender may sustain or incur as a
consequence of complying with any such direction.
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17. PAYMENTS AND TAXATION
--------------------------------------------------------------------------------
17.1 TIME AND PLACE
Unless this Agreement provides otherwise, each of the Borrowers and
Xxxxxx'x Brewing Group shall make all payments due from it under this
Agreement in the applicable currency in Same Day Funds not later than
11.00 a.m. (local time) on the due date to the account specified by the
relevant Lender from time to time in respect of such currency. The
account specified by the Lender must be located in the jurisdiction of
its Lending Office for that currency as specified in the First
Schedule.
17.2 NO DEDUCTION
Unless this Agreement provides otherwise, each of the Borrowers and
Xxxxxx'x Brewing Group shall make all payments required from it under
this Agreement without set-off or counterclaim and without deduction or
withholding, whether on account of Taxes (except to the extent the
Borrower or Xxxxxx'x Brewing Group (as the case may be) is obliged by
law to deduct Taxes), but without prejudice to Clause 17.5 or
otherwise.
17.3 PAYMENT TO BE MADE ON BUSINESS DAY
Whenever any payment becomes due under this Agreement on a day which is
not a Business Day, the due date shall be the next Business Day in the
same calendar month or, if none, the preceding Business Day and
interest shall be adjusted accordingly.
17.4 APPROPRIATION WHERE INSUFFICIENT MONEYS AVAILABLE
Amounts received by the Lender shall be appropriated as between
principal, interest and other amounts as the Lender determines. Any
such appropriation shall override any appropriation made by the
Borrowers or Xxxxxx'x Brewing Group.
17.5 ADDITIONAL PAYMENTS
Whenever a Borrower or Xxxxxx'x Brewing Group is obliged to make a
deduction or withholding in respect of Tax from any payment to be made
under this Agreement, then it shall:
(a) promptly pay the full amount required to be deducted or
withheld to the appropriate Governmental Agency;
(b) within 30 days of the end of the month in which the deduction
or withholding is made, deliver to the Lender official
receipts or other documentation acceptable to the Lender
evidencing payment of such amount; and
(c) unless the Tax is an Excluded Tax, indemnify on demand the
Lender against such Tax and any amounts recoverable from the
Lender in respect of such Tax, and pay for the account of the
Lender such additional amounts as the Lender may determine to
be necessary to ensure that it receives when due a net amount
(after payment of any
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Taxes in respect of such additional amounts) in the relevant
currency or currencies equal to the full amount which it would
have received had such a deduction or withholding not been
made. The Borrowers and Xxxxxx'x Brewing Group waive any
statutory right to recover any such amounts from the Lender.
17.6 SURVIVAL OF OBLIGATIONS
The obligations of the Borrowers and Xxxxxx'x Brewing Group under this
Clause shall survive the repayment of any Guaranteed Moneys and the
termination of any Relevant Document.
17.7 REIMBURSEMENT
(a) For so long as no Event of Default entitling the Lender or the
Trustee to make a declaration under Clause 5.2(A) or (B) of
the Trust Deed has occurred and is subsisting, whenever:
(i) a Borrower or Xxxxxx'x Brewing Group pays any
additional amount to, for the account of, or on
behalf of, the Lender in respect of amounts payable
under Clause 17.5 (ADDITIONAL TAXES); and
(ii) the Lender in its absolute discretion decides that it
has received any clearly identifiable credit against,
or relief or remission for the amount or repayment
of, any Tax paid or payable by it in respect of or
calculated with reference to the deduction or
withholding giving rise to such Additional Tax,
then to the extent that it determines that a payment to the
Borrower or Xxxxxx'x Brewing Group (as the case may be) can be
made without prejudice to the retention of the amount of such
credit, relief, remission or repayment, the Lender shall
promptly pay to the Borrower or Xxxxxx'x Brewing Group (as the
case may be) the amount of any consequent reduction in its
Tax.
(b) Nothing in paragraph (a) shall interfere with the right of the
Lender to arrange its Tax affairs in any manner it thinks fit.
In particular, the Lender shall not be under any obligation to
claim any credit, relief, remission or repayment in respect of
the amount of any Additional Taxes in priority to any other
credit, relief, remission or repayment available to it or to
disclose to any Borrowers or Xxxxxx'x Brewing Group any
information regarding its tax affairs or tax computations.
18. CHANGES IN LAW
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18.1 INCREASED COSTS
Whenever the Lender determines that it or any of its Related Companies
is affected by any change (occurring after the date of this Agreement)
in, any making (occurring after the date of this Agreement) of, or any
change (occurring after the date of this Agreement) in the
interpretation or
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application by any Governmental Agency, central bank or other fiscal,
monetary or other authority of, any law, official directive or request
(including, without limitation, with respect to Taxation (other than an
Excluded Tax) or reserve, liquidity, capital adequacy, special deposit
or similar requirements) and that as a result:
(a) the effective cost to the Lender of making, funding or
maintaining any Segment or its Commitment is in any way
increased;
(b) any amount paid or payable to or received or receivable by the
Lender or the effective return to the Lender or any of its
Related Companies under or in respect of this Agreement or the
Trust Deed is in any way reduced;
(c) the return of the Lender or any of its Related Companies on
the capital which is or becomes directly or indirectly
allocated by the Lender or the Related Company to any Segment
or its Commitment is in any way reduced; or
(d) in any way, in so far as that law, official directive or
request relates to or affects its Commitment, any Segment,
this Agreement or the Trust Deed, the overall return on
capital of the Lender or any of its Related Companies is
reduced,
(including, without limitation, by reason of the Lender or any of its
Related Companies being restricted in its capacity to enter other
transactions, or being required to make a payment or foregoing or
earning reduced interest or other return on any capital or on any
amount calculated by reference in any way to, or allocating capital to,
the amount of any Segment, its Commitment or to any other amount paid
or payable or received or receivable under this Agreement or the Trust
Deed) then:
(e) (when it has calculated the effect of the foregoing and the
amount to be charged) the Lender shall notify Xxxxxx'x Brewing
Group; and
(f) on demand from time to time the applicable Borrower or
Borrowers shall pay for the account of the Lender the amount
certified by an Authorised Officer of the Lender which shall
compensate it or its relevant Related Company (as the case may
be) for such increased cost or such reduction.
This Clause applies with respect to official directives or requests
whether or not having the force of law and, if not having the force of
law, the observance of which is customary for the Lender or in the
Lender's judgement necessary.
18.2 MINIMISATION
(a) (NOTICE): At the time of making such demand the Lender shall
deliver to Xxxxxx'x Brewing Group a certificate specifying
(without any obligation to disclose any details relating to
its business and Tax affairs):
(i) the event by reason to which it is entitled to make
such demand; and
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(ii) the calculations (in reasonable detail) on which such
demand is based.
(b) (NO DEFENCE): If the Lender and (if applicable) its Related
Company has acted in good faith it shall not be a defence that
any cost, reduction or payment or loss of tax credit referred
to in Clause 18 or this Clause could have been avoided.
(c) (NEGOTIATION): At the request of the applicable Borrower or
Borrowers or Xxxxxx'x Brewing Group, the Lender shall
negotiate in good faith with the applicable Borrower or
Borrowers with a view to finding a means by which any such
cost, reduction or repayment or loss of tax credit or the
effect of any unlawfulness or impracticability referred to in
Clause 19.1 or, if applicable, of the Bank of England's
requirements or requests referred to in Clause 19.2 can be
minimised.
18.3 SURVIVAL OF OBLIGATIONS
The obligations of the Borrowers under this Clause shall survive the
repayment of any Guaranteed Moneys and the termination of any Relevant
Document.
19. ILLEGALITY
--------------------------------------------------------------------------------
19.1 ILLEGALITY
If the making of, or a change in the interpretation or application by
any Governmental Agency of, any law or treaty makes it unlawful or
impracticable for the Lender to make, fund or maintain any Segment
provided to a Borrower, then:
(a) the Lender may, by notice to that Borrower, terminate its
obligation to that Borrower to provide the Segment;
(b) if required by the law or treaty, or if necessary to prevent
or remedy a breach of the law or treaty, that Borrower will
prepay the Segment together with all fees and other amounts
payable in relation to the Segment; and
(c) such prepayment shall be made immediately, but if in the
opinion of the Lender delay in prepayment is permitted by, or
will not cause a breach of, the law or treaty, it shall be
made on the latest permitted day.
19.2 BANK OF ENGLAND REQUIREMENTS
If the Lender is required or requested by the Bank of England to retire
any outstanding Bills under the Xxxxxxxx Xxxx Facility sold by the
Lender to any person(s), the Lender shall so inform Treasury UK and
Treasury UK may elect to prepay the Bills together with all fees and
other amounts payable in connection with the Bills, and if Treasury UK
does not so elect to prepay, it shall indemnify the Lender in respect
of any cost, claim, expense or liability suffered or incurred by the
Lender in connection therewith (notwithstanding
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that the maturity dates of such Bills may not have, and that no Event
of Default may have, occurred).
20. CONDITIONS PRECEDENT AND SUBSEQUENT
--------------------------------------------------------------------------------
20.1 CONDITIONS PRECEDENT TO DRAWDOWN
The right of any of the Borrowers to give the first Drawdown Notice and
the obligations of the Lender under this Agreement are subject to the
condition precedent that the Lender has received all of the following
in form and substance satisfactory to it:
(a) (VERIFICATION CERTIFICATE): A certificate in relation to each
of the Borrowers and Xxxxxx'x Brewing Group substantially in
the form of Annexure H (with the attachments (in form and
substance satisfactory to the Lender) referred to).
(b) (EXECUTED COUNTERPARTS): Counterparts of this Agreement duly
executed by each of the Borrowers and Xxxxxx'x Brewing Group.
(c) (APPROVED FACILITY CERTIFICATE): An Approved Facility
Certificate in respect of the Facilities.
(d) (BORROWERS' LAWYERS' OPINIONS - THIS AGREEMENT): An opinion of
Xxxxxx Xxxxxxxx & Hedderwicks, Xxxxxxxx Chance, XxXxxxxx
Xxxxxxxx, Australian, English and Canadian lawyers
respectively for the Borrowers and Xxxxxx'x Brewing Group, in
relation to this Agreement.
20.2 CONDITIONS PRECEDENT TO EACH SEGMENT
The obligation of each Lender to make available a Segment is subject to
the following conditions precedent:
(a) (TRUST DEED CONDITIONS PRECEDENT - NO INCREASE IN PRINCIPAL
AMOUNT): to the extent only that the provision of the Segment
would result in an increase in the aggregate principal amount
of all Segments outstanding on that day, that each of the
conditions precedent set out in paragraphs (i) to (vi) (both
inclusive) of Clause 5.7(a) of the Trust Deed (subject to
Clause 5.7(c) of the Trust Deed) applies as if set out in this
Agreement and has been satisfied (on the basis that any
reference to the "Funding Creditor" in any of those paragraphs
is a reference to the Lender);
(b) (TRUST DEED CONDITIONS PRECEDENT - NO PROVISION OR ROLLOVER OF
ACCOMMODATION): that each of the conditions precedent in
paragraphs (a) to (d) (both inclusive) of Clause 5.8 of the
Trust Deed applies as if set out in this Agreement and has
been satisfied (on the basis that any reference to the
"Funding Creditor" in any of those paragraphs is a reference
to the Lender);
(c) (NO DEFAULT): that no Event of Default or Potential Event of
Default will result from the provision of the financial
accommodation;
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(d) (AUTHORISATION): that all necessary Authorisations for the
provision of the financial accommodation have been obtained;
and
(e) (DIRECTORS): in the case of a Segment to be provided to
Treasury UK, unless the requirement in Treasury UK's articles
of association that at least half of its board of directors
are to be resident in the United Kingdom has been deleted,
Treasury UK representing and warranting that at the Drawdown
Date at least half of its board of directors are resident in
the United Kingdom.
21. REPRESENTATIONS, WARRANTIES, COVENANTS AND EVENTS OF DEFAULT
--------------------------------------------------------------------------------
21.1 REPRESENTATIONS AND WARRANTIES
(a) Each of the Borrowers and Xxxxxx'x Brewing Group acknowledges
that the Lender enters into this Agreement in reliance on the
representations and warranties contained in Clause 3 of the
Trust Deed.
(b) Each of the Borrowers and Xxxxxx'x Brewing Group acknowledges
that the representations and warranties in Clause 3 of the
Trust Deed are repeated for the benefit of the Lender in
accordance with Clause 3.4 of the Trust Deed.
21.2 TRUST DEED COVENANTS
Each of the Borrowers and Xxxxxx'x Brewing Group acknowledges that it
has given the undertakings in the Trust Deed for the benefit of the
Lender and the Lender is entering into this Agreement in reliance on
those undertakings.
21.3 EVENTS OF DEFAULT
(a) The list of Events of Default and the rights of the Lender as
a Creditor as a consequence of an Event of Default are set out
in Clause 5 of the Trust Deed.
(b) Each of the Borrowers and Xxxxxx'x Brewing Group acknowledges
that the Lender enters into this Agreement in reliance on the
rights conferred under Clause 5 of the Trust Deed and on the
basis that it is and will be entitled to exercise those rights
as a "Creditor".
22. SET-OFF
--------------------------------------------------------------------------------
22.1 SET-OFF
Each of the Borrowers and Xxxxxx'x Brewing Group authorises the Lender
(but without obligation on the part of the Lender) if an Event of
Default which would entitle the Lender (as a Creditor) or the Trustee
to make a declaration under Clause 5.2(A) or (B) of the Trust Deed is
subsisting to apply any credit balance in any currency (whether or not
matured) in any of its accounts with any branch of the Lender in or
towards satisfaction of any
FACILITY AGREEMENT
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sum at any time due and payable by it to the Lender under or in
relation to any Relevant Document.
22.2 CURRENCY EXCHANGE
The Lender may effect such currency exchanges as are appropriate to
implement such set-off.
23. INDEMNITIES
--------------------------------------------------------------------------------
Each of the Borrowers and Xxxxxx'x Brewing Group shall indemnify the
Lender on demand against any loss, cost or expense the Lender may
sustain or incur as a consequence of:
(a) the occurrence of any Event of Default or Potential Event of
Default;
(b) any statement in or omission or alleged omission from any
information or loan proposal or any document or information
prepared or authorised by it or any claim in respect of any of
the foregoing (including legal costs on a full indemnity basis
or solicitor/own client basis, whichever is the greater);
(c) any Segment requested in a Drawdown Notice not being provided
for any reason (including, without limitation, failure to
fulfil any condition precedent but excluding any default by
the Lender); or
(d) the Lender receiving payments of principal in respect of any
Segment other than on the last day of the relevant Funding
Period for any reason, including, without limitation,
prepayment in accordance with this Agreement, but excluding
default by the Lender.
Without limitation, such indemnity shall include any liabilities,
losses, costs, charges or expenses incurred in liquidating funds or the
interest or other losses incurred by the Lender in otherwise employing
funds borrowed, raised, contracted for or utilised to fund or maintain
any Segment (including loss of margin) and any liabilities, losses,
costs, charges or expenses incurred by the Lender resulting from the
variation, termination or making of any other arrangements in relation
to any arrangements ancillary or related to this Agreement including,
without limitation, any option, currency or interest rate swap
agreement, forward interest rate agreement or foreign exchange
agreement entered into by the Lender in connection with or in order to
facilitate the provision of any Segment and including in each case,
without limitation, reasonable external legal costs, charges and
expenses calculated at the option of the Lender on a full indemnity
basis or solicitor/own client basis. A statement signed in writing by
an Authorised Officer of the Lender will, in the absence of manifest
error, be sufficient evidence as to the existence and amount of its
liabilities, losses, costs, charges and expenses under or in connection
with this Clause 23.
FACILITY AGREEMENT
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24. CURRENCY INDEMNITY
--------------------------------------------------------------------------------
24.1 GENERAL
Whenever:
(a) any amount payable by a Borrower or Xxxxxx'x Brewing Group
under or in respect of this Agreement is received or recovered
by the Lender in a currency (the PAYMENT CURRENCY) other than
the currency under which the relevant amount was payable under
this Agreement (the AGREED CURRENCY) for any reason (including
without limitation as result of any judgment or order); and
(b) the amount actually received by the Lender in accordance with
its normal practice by converting the Payment Currency into
the Agreed Currency is less than the relevant amount of the
Agreed Currency,
then that Borrower or Xxxxxx'x Brewing Group (as applicable) shall, to
the fullest extent that it is permitted to do so, as an independent
obligation and notwithstanding any such judgment, indemnify the Lender
on demand against the deficiency.
24.2 LIQUIDATION
In the event of the Liquidation of a Borrower or Xxxxxx'x Brewing
Group, that Borrower or Xxxxxx'x Brewing Group (as applicable), shall,
to the fullest extent that they may effectively do so, indemnify the
Lender on demand against any deficiency arising or resulting from any
variation as between:
(a) the exchange rate actually applied for the purposes of such
Liquidation in converting into another currency any amount
expressed in one currency due or contingently due under this
Agreement or under any judgment or order relating to any
Relevant Document; and
(b) the exchange rate at which the Lender in accordance with its
normal practice would be able to purchase the last-mentioned
currency with the first-mentioned currency as at the final
date or dates for the filing of proof or other claim in the
Liquidation or the nearest available prior date including any
premiums and costs of exchange payable in connection with the
purchase.
25. STAMP DUTIES
--------------------------------------------------------------------------------
25.1 BORROWER TO PAY
Each of the Borrowers shall pay all stamp, transaction, registration
and similar Taxes (including fines and penalties) which may be payable
or determined to be payable in connection with the execution, delivery,
performance or enforcement of this Agreement or any payment or receipt
or any other transaction contemplated by this Agreement.
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25.2 FID ETC INCLUDED
Such Taxes shall include any financial institutions duty, debits tax or
other Taxes payable by return and any such Taxes passed on to the
Lender by any bank or financial institution.
25.3 INDEMNITY
The Borrowers shall indemnify the Lender on demand against any
liabilities resulting from delay or omission to pay such Taxes for
which it is responsible.
26. EXPENSES
--------------------------------------------------------------------------------
The Borrowers shall on demand reimburse the Lender for the reasonable
expenses of the Lender in connection with:
(a) any subsequent consent, approval, waiver, variation or
amendment under or to this Agreement; and
(b) the amendment, variation, termination or enforcement of, or
the preservation of any rights under, this Agreement
including, without limitation, any expenses incurred in
retaining consultants to evaluate matters of material concern
to the Lender,
including, in each case, reasonable legal costs and expenses on a full
indemnity basis together with any VAT thereon.
27. WAIVERS, REMEDIES CUMULATIVE
--------------------------------------------------------------------------------
27.1 WAIVERS
No failure to exercise and no delay in exercising any right, power or
remedy under this Agreement by any party shall operate as a waiver, nor
shall any single or partial exercise of any right, power or remedy
preclude any other or further exercise of that or any other right,
power or remedy.
27.2 RIGHTS CUMULATIVE
The rights, powers and remedies provided to the parties are cumulative
and not exclusive of any rights, powers or remedies provided by law.
28. SEVERABILITY OF PROVISIONS
--------------------------------------------------------------------------------
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability, but that shall not
invalidate the remaining provisions of this Agreement or affect such
provision in any other jurisdiction.
FACILITY AGREEMENT
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29. SURVIVAL OF REPRESENTATIONS AND INDEMNITIES
--------------------------------------------------------------------------------
29.1 SURVIVAL OF REPRESENTATIONS
All representations and warranties in this Agreement shall survive the
execution and delivery of this Agreement and final payment of the
Guaranteed Moneys.
29.2 CONTINUING INDEMNITIES
Each indemnity in this Agreement shall:
(a) be a continuing obligation;
(b) constitute a separate and independent obligation of the party
giving the indemnity from its other obligations under this
Agreement; and
(c) survive the termination of this Agreement.
30. MORATORIUM LEGISLATION
--------------------------------------------------------------------------------
To the full extent permitted by law all legislation which at any time
directly or indirectly:
(a) lessens or otherwise varies or affects in favour of the
Borrowers or Xxxxxx'x Brewing Group any obligation under this
Agreement; or
(b) delays or otherwise prevents or prejudicially affects the
exercise by the Lender of any right, power or remedy conferred
by this Agreement,
is negated and excluded from this Agreement.
31. CONTROL ACCOUNTS
--------------------------------------------------------------------------------
The accounts kept by the Lender shall constitute sufficient evidence
unless the contrary is proved of the amount at any time due from the
Borrowers under any Relevant Document.
32. INTEREST ON OVERDUE AMOUNTS
--------------------------------------------------------------------------------
32.1 DEFAULT INTEREST
Subject to Clause 32.6, the relevant Borrower shall pay interest on:
(a) all amounts due and payable by it under or in relation to this
Agreement (including such amounts due for payment under Clause
5 of the Trust Deed) and unpaid;
(b) all amounts claimed (to the extent cash cover is not provided
in respect of such amount, as and when required under the
Relevant Document) under a Letter of Credit,
FACILITY AGREEMENT
--------------------------------------------------------------------------------
(including interest payable under this Clause) in the currency of the
relevant amount. Interest under this Clause shall accrue on a daily
basis at the rate provided in Clause 32.2, subject to Clause 32.6, from
the date such amount is due and payable or the Lender receives a claim
under a Letter of Credit.
All amounts payable by the Borrower to the Lender under this Clause
32.1 shall be payable on demand by the Lender.
32.2 RATE
Such interest shall accrue, subject to Clause 32.5, from the due date
up to the date of actual payment, before and (as a separate and
independent obligation) after judgment at a rate determined by the
Lender to be the aggregate of 1.5% per annum and the higher of:
(a) the rate (if any) applicable to such amount immediately prior
to the due date;
(b) the sum of the Margin and the arithmetic mean (rounded
upwards, if necessary, to the nearest 1/16th of 1%) of the
rates quoted to the Lender two Business Days before the date
of default (or, as appropriate, the expiry of the funding
period referred to below) by leading banks in the London
Interbank Market (as selected by the Lender), for the making
of deposits in the currency concerned of an amount comparable
to the overdue amount on call or for such funding period not
exceeding three months as the Lender may determine from time
to time (or, if no such quotes are available, such equivalent
rate as the Lender may determine); and
(c) the cost incurred by the Lender in funding the relevant
Facility (as certified by the Lender).
32.3 BASIS OF CALCULATION
Interest under Clause 32.2 (a) shall be calculated on the basis of a
year of 365 days or 366 days (as the case may be) (in the case of
unpaid amounts denominated in Sterling, NZ dollars or Australian
dollars) or 360 days (in the case of unpaid amounts denominated in US
dollars or Euros).
32.4 CAPITALISATION
Unless demanded more frequently, interest under this Clause 32 shall
capitalise quarterly.
32.5 CONTINGENT AMOUNTS
Without prejudice to the obligations of the Borrower under Clause 32.6,
the Borrower shall not be obliged to pay interest under this Clause 32
on any amount due and payable under this Agreement or the Trust Deed in
respect of any contingent liability of the Lender under a Letter of
Credit or in respect of any unmatured Xxxx accepted for the Borrower's
account unless and until:
(a) where the amount was payable in respect of the contingent
liability of the Lender under a Letter of Credit, a claim is
made on the Lender under or in relation to the Letter of
Credit;
FACILITY AGREEMENT
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(b) where the amount was payable in respect of an unmatured Xxxx
accepted for account, the maturity date of that Xxxx.
32.6 RISK FEE
The relevant Borrower shall pay to the Lender a risk fee on all amounts
due and payable by that Borrower under this Agreement or the Trust Deed
in respect of any contingent liability of the Lender under a Letter of
Credit or in respect of any unmatured Xxxx but unpaid, in the currency
or currencies of the relevant amounts, at the rate of 1.5% per annum of
the face amount of the Letter of Credit or the unmatured Xxxx from the
due date up until:
(a) in the case of an amount payable in respect of the contingent
liability of the Lender under a Letter of Credit, a claim is
made on the Lender under or in relation to that Letter of
Credit or the Letter of Credit expires without having been
drawn upon; and
(b) in the case of an amount payable in respect of an unmatured
Xxxx, the maturity date of that Xxxx,
calculated on the basis of a year of 365 days or 366 days (as the case
may be) where the Letter of Credit or unmatured Xxxx is denominated in
Sterling, NZ dollars or Australian dollars or 360 days where the Letter
of Credit is denominated in US dollars or Euros. Such fee shall be
payable, in relation to each such amount, on the last day of the period
in respect of which the fee is payable or, if that period is longer
than three months, the date three months after the amount becomes due
and payable under this Agreement or the Trust Deed (as applicable) and
the last day of the period in respect of which the fee is payable.
33. FEES
--------------------------------------------------------------------------------
Each Borrower shall pay to the Lender the establishment, line and
Letter of Credit fees in the amounts and at the times set out in the
letters from the Lender to Xxxxxx'x Brewing Group (which have been
accepted by an Authorised Officer of Xxxxxx'x Brewing Group).
34. ASSIGNMENT
--------------------------------------------------------------------------------
34.1 ASSIGNMENTS BY BORROWERS AND XXXXXX'X BREWING GROUP
None of the Borrowers or Xxxxxx'x Brewing Group shall assign or
transfer all or any of its rights or obligations under this Agreement
without the prior written consent of the Lender.
34.2 ASSIGNMENT BY LENDER
The Lender may assign or transfer all or any of its rights or
obligations under this Agreement to another bank or financial
institution at any time if:
(a) any necessary prior Authorisation is obtained;
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(b) Xxxxxx'x Brewing Group has given its prior consent to such
transfer or assignment, which consent:
(i) shall not be unreasonably withheld;
(ii) shall not be required in the case of a transfer or
assignment to a Related Company of the Lender which
will provide the relevant Facilities through lending
offices located in the same jurisdictions as the
Lending Offices specified in the First Schedule in
respect of those Facilities; and
(iii) will be deemed to have been given if no response is
received within 15 days of request for such consent;
(c) the assignee or transferee first executes and delivers to
Xxxxxx'x Brewing Group an agreement (in form and substance
reasonably satisfactory to Xxxxxx'x Brewing Group) under which
the assignee or transferee agrees to be bound by this
Agreement and, if it is not a Creditor, a Creditor Accession
Deed.
34.3 DISCLOSURE
The Lender may with the prior consent of Xxxxxx'x Brewing Group (which
shall not unreasonably be withheld or delayed) disclose to a proposed
assignee, or transferee or sub-participant information relating to any
member of the Group or furnished in connection with this Agreement.
34.4 CHANGE OF LENDING OFFICE
The Lender may not change any of its Lending Offices unless:
(a) it gives prior notice to Xxxxxx'x Brewing Group and consults
with Xxxxxx'x Brewing Group; and
(b) its new Lending Office is in the same jurisdiction as the
relevant existing Lending Office.
34.5 INCREASE IN COSTS
Subject to contrary agreement between the parties, if the Lender
assigns its rights or transfers any or all of its rights and
obligations under this Agreement or changes its Lending Offices, none
of the Borrowers nor Xxxxxx'x Brewing Group shall be required to pay
any net increase in the aggregate amount of costs, Taxes, fees or
charges which is a direct consequence of the assignment or transfer or
change of its Lending Office and of which the Lender or its assignee or
transferee (as applicable) was aware or ought reasonably to have been
aware on the date of the assignment, transfer or change.
FACILITY AGREEMENT
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35. NOTICES
--------------------------------------------------------------------------------
35.1 NOTICES
All notices, requests, demands, consents, approvals, disclosures,
agreements or other communications to or by a party to this Agreement
shall:
(a) except where this Agreement specifically contemplates oral
communications, be in writing addressed to the address of the
recipient shown in this Agreement or to such other address as
it may have notified the sender;
(b) be signed by an Authorised Officer of the sender; and
(c) be deemed to be duly given or made:
(i) (in the case of delivery in person or by post) when
delivered to the recipient at such address;
(ii) (in the case of telex) on receipt by the sender of
the answerback code of the recipient at the end of
transmission; or
(iii) (in the case of facsimile transmission) on receipt by
the sender of acknowledgment of transmission free of
error at the end of transmission,
but if such delivery or receipt is later than 4.00 p.m. (local
time) or is not on a day on which business is generally
carried on in the place to which such communication is sent,
it shall be deemed to have been duly given or made at the
commencement of business on the next such business day in that
place.
35.2 TO BORROWERS OR XXXXXX'X BREWING GROUP
Any notice required to be given to a Borrower or Xxxxxx'x Brewing Group
shall be deemed given if given to Xxxxxx'x Brewing Group and that
Borrower in accordance with Clause 36 to the following relevant
addresses:
XXXXXX'X BREWING GROUP LIMITED
00 Xxxxxxxxx Xxxxxxxxx,
Xxxxxxxxx, Xxxxxxxx, 0000
Telephone: (00) 0000 0000
Fax: (00) 0000 0000
Contact: Vice President, Treasury
FBG TREASURY (UK) PLC
Montrose House
Chertsey Boulevard
Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxx XX00 0XX, Xxxxxx Xxxxxxx
Telephone: 00000 000000
FACILITY AGREEMENT
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Fax: 00000 000000
Contact: Executive Director
FBG TREASURY (AUST.) LIMITED
00 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx, 0000
Telephone: (00) 0000 0000
Fax: (00) 0000 0000
Contact: Vice President, Treasury
FBG TREASURY (NZ) LIMITED
Xxxxx 0, Xxxxx'x Xxxxx
00 Xxxxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxxx, Xxx Xxxxxxx
Telephone: (00) 0 000 0000
Fax: (00) 0 000 0000
Contact: Xxxxxxx Xxxxxxxx
FBG TREASURY (USA) INC.
Xxxxx 000
000 Xxxxx Xxxx
Xxxxxxxxxx Xxxxxxxx XXX 00000
Telephone: 000 000 0000
Fax: 000 000 0000
Contact: Xxxx Xxxxxxx
FBG TREASURY (EUROPE) B.V.
De Nederlandse Wijnbeurs B.V.
Xxxxxxxxxxxxxx 00
0000 XX Xxxxx
Xxx Xxxxxxxxxxx
Telephone: (00) 0000 00000
Fax: (00) 0000 00000
Contact: Jacques Van Xxxx
00. AUTHORISED OFFICERS
--------------------------------------------------------------------------------
Each of the Borrowers and Xxxxxx'x Brewing Group irrevocably authorises
the Lender to rely on a certificate by any person purporting to be one
of its directors or secretaries, as to the identity and signatures of
its Authorised Officers and warrants that those persons have been
authorised to give notices and communications under or in connection
with this Agreement.
FACILITY AGREEMENT
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37. GOVERNING LAW AND JURISDICTION
--------------------------------------------------------------------------------
This Agreement is governed by and construed in accordance with the laws
of Victoria. The parties irrevocably submit to the non-exclusive
jurisdiction of the courts of Victoria.
38. COUNTERPARTS
--------------------------------------------------------------------------------
This Agreement may be executed in any number of counterparts. All of
such counterparts taken together shall be deemed to constitute the one
instrument.
39. ACKNOWLEDGEMENT BY BORROWERS AND XXXXXX'X BREWING GROUP
--------------------------------------------------------------------------------
Each of the Borrowers and Xxxxxx'x Brewing Group confirms that:
(a) it has not entered into this Agreement in reliance on, or as a
result of, any statement or conduct of any kind of or on
behalf of the Lender or any Related Company of the Lender
(including, without limitation, any advice, warranty,
representation or undertaking but excluding the
representations in Clause 39); and
(b) neither the Lender nor any Related Company of the Lender is
obliged to do anything (including, without limitation,
disclose anything or give advice), except as expressly set out
in the Relevant Documents.
40. UK LENDER REPRESENTATIONS
--------------------------------------------------------------------------------
40.1 ELIGIBLE BANK WARRANTY
The Lender through its UK Lending Office represents and warrants for
the benefit of Treasury UK that it is recognised by the Bank of England
as an institution whose UK acceptances are eligible for discount at the
Bank of England.
40.2 SECTION 349 WARRANTY
The Lender represents and warrants, as at the date of this Agreement
for the benefit of Treasury UK that it is a Qualifying Lender.
40.3 CEASING TO BE A QUALIFYING LENDER
(a) The Lender shall promptly give notice to Treasury UK if it
ceases to be a Qualifying Lender.
(b) If the Lender is not or ceases, otherwise than by reason of
any change in English law (excluding any change of law as a
result of any provision of the Finance Act) or in its
interpretation or application by any competent authority or
any change in any extra-statutory or revenue concession, to be
a Qualifying Lender, then Treasury UK shall not be liable to
pay to the Lender under Clause 17.5 any amount
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in excess of the amount it would have been obliged to pay if
the Lender were a Qualifying Lender.
41. ATTORNEYS
--------------------------------------------------------------------------------
Each attorney executing this Agreement states that he has no notice of
the revocation of his power of attorney.
FACILITY AGREEMENT
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SCHEDULE 1
LENDING OFFICES
--------------------------------------------------------------------------------
LENDING OFFICE FOR AUSTRALIAN DOLLAR PAYMENTS AND THE A$ XXXX FACILITY, A$ CASH
ADVANCE FACILITY AND THE LC FACILITY DENOMINATED IN AUSTRALIAN DOLLARS.
Xxxxx 00
000 Xxxxxx Xxxxxx
XXXXXXXXX XXX 0000
Attention: Mr Xxxx Xxxxxxxxx
Telephone: 0000 0000
Facsimile: 9675 7288
LENDING OFFICE FOR STERLING PAYMENTS AND THE XXXXXXXX XXXX FACILITY, STERLING
CASH ADVANCE FACILITY AND THE LC FACILITY DENOMINATED IN STERLING AND EURO
PAYMENTS, THE EURO CASH ADVANCE FACILITY AND THE LC FACILITY DENOMINATED IN
EUROS
Commonwealth Bank of Australia
Senator House
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: Xxxx Xxxxxx/Xxxxxx Spain
Telephone: 00 000 000 0000
Facsimile: 44 171 329 6611
LENDING OFFICE FOR US DOLLAR PAYMENTS AND THE US$ CASH ADVANCE FACILITY AND LC
FACILITY DENOMINATED IN US DOLLARS.
Commonwealth Bank of Australia
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx XX 00000 XXX
Attention: Vice President and Senior Manager, Banking Services
Telephone: (0000) 000 0000
Facsimile: (0000) 000 0000
FACILITY AGREEMENT
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LENDING OFFICE FOR NZ DOLLAR PAYMENTS AND LC FACILITY DENOMINATED IN NZ DOLLARS
Xxxxx 00
000 Xxxxxx Xxxxxx
XXXXXXXXX XXX 0000
Attention: Mr Xxxx Xxxxxxxxx
Telephone: 0000 0000
Facsimile: 9675 7288
FACILITY AGREEMENT
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SCHEDULE 2
ADDITIONAL DOMESTIC STERLING COSTS
--------------------------------------------------------------------------------
(a) The additional domestic Sterling cost for an amount for a Funding
Period is the rate determined by the Lender to be equal to the rate
notified by the Lender and calculated in accordance with the following
formulae:
In relation to an amount denominated in Sterling:
BY + S(Y - Z) + F x 0.01% per annum = additional domestic Sterling cost
------------------------
100 - (B + S)
where on the day of application of the formula:
B is the percentage of the Lender's eligible liabilities (in
excess of any stated minimum) which the Bank of England
requires the Lender to hold on a non-interest-bearing deposit
account in accordance with its cash ratio requirements;
Y is the rate at which Sterling deposits are offered by the
Lender to leading banks in the London interbank market at or
about 11.00 a.m. on that day for the Funding Period;
S is the percentage of the Lender's eligible liabilities which
the Bank of England requires the Lender to place as a special
deposit;
Z is the interest rate per annum allowed by the Bank of England
on special deposits; and
F is the charge payable by the Lender to the Financial Services
Authority under paragraph 2.02 or 2.03 (as appropriate) of the
Fees Regulations but where for this purpose, the figure in
paragraph 2.02b and 2.03b will be deemed to be zero expressed
in pounds per [pound]1 million of the fee base of the Lender.
(b) For the purposes of this Schedule 2:
(i) "eligible liabilities" and "special deposits" have the
meanings given to them at the time of application of the
formula by the Bank of England; and
(ii) "fee base" has the meaning given to it in the Fees
Regulations; and
(iii) "Fees Regulations" means the Banking Supervision (Fees)
Regulations 1998 or any other regulations governing the
payment of fees for banking supervision.
(c) In the application of the formula, B, Y, S and Z are included in the
formula as figures and not as percentages, e.g. if B = 0.5% and Y =
15%, BY is calculated as 0.5 x 15.
(d) (i) The formula is applied on the first day of the relevant
Funding Period.
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(ii) Each rate calculated in accordance with the formula is, if
necessary, rounded upward to four decimal places.
(e) If the Lender in its reasonable opinion determines that a change in
circumstances has rendered, or will render, the formula inappropriate,
the Lender following consultation with the relevant Borrower shall
notify the relevant Borrower of the manner in which the additional
domestic Sterling cost will subsequently be calculated. The manner of
calculation so notified by the Lender shall, in the absence of proven
error, be binding on all the parties.
FACILITY AGREEMENT
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ANNEXURE A
STERLING DRAWDOWN NOTICE
--------------------------------------------------------------------------------
To: Commonwealth Bank of Australia
MULTIPLE OPTION FACILITY - DRAWDOWN NOTICE
We refer to the Facility Agreement dated 10 May 1991 as amended (the FACILITY
AGREEMENT).
Pursuant to Clause 7.1/12.1 of the Facility Agreement:
(1) we give you irrevocable notice that we wish to draw on [#]. (the
DRAWDOWN DATE);
[SUCH DATE IS TO BE A BUSINESS DAY]
(2) the aggregate principal amount to be drawn is L[#];
[SUCH AMOUNT TO COMPLY WITH CLAUSE 2]
(3) we request the following Segments:
FACILITY PRINCIPAL FUNDING
AMOUNT PERIOD
* ** ***
--------------------
* Xxxxxxxx Xxxx or Sterling Cash Advance Facility
** Principal Amount must comply with Clause 7.1 or 12.1
*** Funding Periods to comply with Clause 4
(4) we request that the proceeds of the cash advances be remitted to
account number .......... at......................... .
(5) we [enclose]/[irrevocably request you to prepare, complete, draw, sign
and deliver on our behalf]/[enclose and irrevocably request you to
complete (including inserting the issue and maturity dates), draw,
sign, and deliver on our behalf] Bills (details of which appear in
Schedule 1 below) drawn by FBG TREASURY (UK) PLC (TREASURY UK) on the
Lender.
We irrevocably request the Lender to do as follows on [#]
(a) in accordance with the Facility Agreement, accept the Bills
for the accommodation of Treasury UK.
(b) [debit to the account of Treasury UK styled
.......................... ........................ at the
..................................... Branch of the Lender
FACILITY AGREEMENT
--------------------------------------------------------------------------------
[deduct from the proceeds referred to in (4) above] the amount
of the Lender's [acceptance/endorsement] and other fees, any
stamp or other documentary or transaction Tax payable on or in
respect of the Bills or any other amount owing by Treasury UK
to the Lender under the Facility Agreement but unpaid.
(c) [complete the name of the payee on the Bills, purchase the
Bills or at the Lender's option sell them to any person and
credit the net proceeds [after deducting any moneys payable
under (b) above] to the account of Treasury UK styled
...................... at the ...........................
Branch of the Lender; and]
[OR]
(d) [deliver the accepted Bills to ..............................
(a specimen of whose signature appears below).]
[OR]
(e) [deliver the accepted Bills to ...............................
(a specimen of whose signature appears below) against the
receipt of [pound]........... which moneys are to be credited
to the account of Treasury UK styled .........................
at the ................................ Branch of the Lender.]
(6) We acknowledge that pursuant to Clause 3.4 of the Trust Deed, the
representations and warranties in Clause 3 of the Trust Deed are
repeated on the date of this notice with respect to the facts and
circumstances then existing.
Expressions defined in the Facility Agreement have the same meaning when used in
this Drawdown Notice.
SCHEDULE 1
--------------- ------------ ---------- -------- ---------- --------------
DRAWER'S DATE MATURITY FACE DRAWER'S ACCEPTOR'S/
NO. OF XXXX EXECUTION DATE AMOUNT NAME ENDORSER(S)'
NAME/NAME(S)
--------------- ------------ ---------- -------- ---------- --------------
For and on behalf of
FBG TREASURY (UK) PLC
By:
[Authorised Officer]
Dated: , [#].
FACILITY AGREEMENT
--------------------------------------------------------------------------------
ANNEXURE B
A$ DRAWDOWN NOTICE
--------------------------------------------------------------------------------
To: Commonwealth Bank of Australia
MULTIPLE OPTION FACILITY - DRAWDOWN NOTICE
We refer to the Facility Agreement dated 10 May 1991 as amended (the FACILITY
AGREEMENT).
Pursuant to Clause 8.1/13.1 of the Facility Agreement:
(1) we give you irrevocable notice that we wish to draw on [#] (the
DRAWDOWN DATE);
[SUCH DATE IS TO BE A BUSINESS DAY]
(2) the aggregate principal amount to be drawn is A$[ ];
[SUCH AMOUNT TO COMPLY WITH CLAUSE 2]
(3) we request the following Segments:
FACILITY PRINCIPAL FUNDING
AMOUNT PERIOD
* ** ***
--------------------
* A$ Xxxx or A$ Cash Advance Facility
** Principal Amount must comply with Clause 8.1 or 13.1
*** Funding Periods to comply with Clause 4
(4) we request that the proceeds of the cash advances be remitted to
account number .......... at ......................... .
(5) we [enclose]/[irrevocably request you to prepare, complete, draw, sign
and deliver on our behalf]/[enclose and irrevocably request you to
complete (including inserting the issue and maturity dates), draw,
sign, and deliver on our behalf] Bills (details of which appear in
Schedule 1 below) drawn by FBG TREASURY (AUST.) LIMITED (TREASURY
AUST.) on the Lender.
We irrevocably request the Lender to do as follows on [#]
(a) in accordance with the Facility Agreement, accept the Bills
for the accommodation of Treasury Aust..
(b) [debit to the account of Treasury Aust. styled
.......................... ........................at the
..................................... Branch of the Lender
[deduct from the proceeds referred to in (4) above] the amount
of the Lender's [acceptance/endorsement] and other fees, any
stamp or
FACILITY AGREEMENT
--------------------------------------------------------------------------------
other documentary or transaction Tax payable on or in respect
of the Bills or any other amount owing by Treasury Aust. to
the Lender under the Facility Agreement but unpaid.
(c) [complete the name of the payee on the Bills, purchase the
Bills or at the Lender's option sell them to any person and
credit the net proceeds [after deducting any moneys payable
under (b) above] to the account of Treasury Aust. styled
...................... at the ...........................
Branch of the Lender; and]
[OR]
(d) [deliver the accepted Bills to ..............................
(a specimen of whose signature appears below).]
[OR]
(e) [deliver the accepted Bills to ...............................
(a specimen of whose signature appears below) against the
receipt of A$........... which moneys are to be credited to
the account of Treasury Aust. styled ................. at the
................................. Branch of the Lender.]
(6) We acknowledge that pursuant to Clause 3.4 of the Trust Deed, the
representations and warranties in Clause 3 of the Trust Deed are
repeated on the date of this notice with respect to the facts and
circumstances then existing.
Expressions defined in the Facility Agreement have the same meaning when used
in this Drawdown Notice.
SCHEDULE 1
--------------- ------------ ---------- -------- ---------- --------------
DRAWER'S DATE MATURITY FACE DRAWER'S ACCEPTOR'S/
NO. OF XXXX EXECUTION DATE AMOUNT NAME ENDORSER(S)'
NAME/NAME(S)
--------------- ------------ ---------- -------- ---------- --------------
For and on behalf of
FBG TREASURY (AUST.) LIMITED
By:
[Authorised Officer]
Dated: , [#].
FACILITY AGREEMENT
--------------------------------------------------------------------------------
ANNEXURE C
US$ DRAWDOWN NOTICE
--------------------------------------------------------------------------------
To: Commonwealth Bank of Australia
MULTIPLE OPTION FACILITY - DRAWDOWN NOTICE
We refer to the Facility Agreement dated 10 May 1991 as amended (the FACILITY
AGREEMENT).
Under Clause 9.1 of the Facility Agreement:
(1) we give you irrevocable notice that we wish to draw on (the
DRAWDOWN DATE);
[SUCH DATE IS TO BE A BUSINESS DAY]
(2) the aggregate principal amount to be drawn is US$[ ];
[SUCH AMOUNT TO COMPLY WITH CLAUSE 2]
(3) we request the following Segments:
FACILITY PRINCIPAL FUNDING
AMOUNT PERIOD
US$ Cash Advance
Facility * **
--------------------
* Principal Amount must comply with Clause 9.1.
** Funding Periods to comply with Clause 4.
(4) we request that the proceeds be remitted to account number at
;
(5) we acknowledge that pursuant to Clause 3.4 of the Trust Deed the
representations and warranties in Clause 3 of the Trust Deed are
repeated on the date of this notice with respect to the facts and
circumstances then existing.
Expressions defined in the Facility Agreement have the same meaning when used in
this Drawdown Notice.
For and on behalf of
FBG TREASURY (USA) INC.
By:
[Authorised Officer]
Dated: , [#].
FACILITY AGREEMENT
--------------------------------------------------------------------------------
ANNEXURE D
NZ$ DRAWDOWN NOTICE
--------------------------------------------------------------------------------
To: Commonwealth Bank of Australia
MULTIPLE OPTION FACILITY - DRAWDOWN NOTICE
We refer to the Facility Agreement dated 10 May 1991 as amended (the FACILITY
AGREEMENT).
Pursuant to Clause 11.1 of the Facility Agreement:
(1) we give you irrevocable notice that we wish to draw on [#] (the
DRAWDOWN DATE);
[SUCH DATE IS TO BE A BUSINESS DAY]
(2) the aggregate principal amount to be drawn is NZ$[ ];
[SUCH AMOUNT TO COMPLY WITH CLAUSE 2]
(3) we request the following Segments:
FACILITY PRINCIPAL FUNDING
AMOUNT PERIOD
* ** ***
--------------------
* NZ$ Cash Advance Facility
** Principal Amount must comply with Clause 11.1
*** Funding Periods to comply with Clause 4
(4) we request that the proceeds of the cash advances be remitted to
account number .......... at ......................... .
(5) We acknowledge that pursuant to Clause 3.4 of the Trust Deed, the
representations and warranties in Clause 3 of the Trust Deed are
repeated on the date of this notice with respect to the facts and
circumstances then existing.
Expressions defined in the Facility Agreement have the same meaning when used in
this Drawdown Notice.
For and on behalf of
FBG TREASURY (NZ) LIMITED
By:
[Authorised Officer]
Dated: , [#].
FACILITY AGREEMENT
--------------------------------------------------------------------------------
ANNEXURE E
LC FACILITY DRAWDOWN NOTICE
--------------------------------------------------------------------------------
To: Commonwealth Bank of Australia
MULTIPLE OPTION FACILITY - DRAWDOWN NOTICE NO. *
We refer to the Facility Agreement dated 10 May 1991 as amended (the "Facility
Agreement").
Pursuant to Clause 14.1 of the Facility Agreement:
(1) we give you irrevocable notice that we wish to draw on [#] (the
"Drawdown Date");
[SUCH DATE IS TO BE A BUSINESS DAY]
(2) the aggregate principal amount to be drawn is:
[SUCH AMOUNT TO COMPLY WITH THE LIMITS IN CLAUSE 2]
(3) We request the following Segments under the LC Facility:
FACILITY PRINCIPAL FUNDING
AMOUNT PERIOD
LC Facility * **
--------------------
* Principal Amount must comply with Clause 14.4.
** Funding Periods to comply with Clause 4.
(4) We request that each Letter of Credit shall be made available to our
account or our Group Nominee at the relevant Lending Office as set out
in Schedule 1. The details of the Secured Financing in respect of which
each Letter of Credit is issued are set out in Schedule 2.
(5) We acknowledge that pursuant to Clause 3.4 of the Trust Deed, the
representation and warranties in Clause 3 of the Trust Deed are
repeated on the date of this notice with respect to the facts and
circumstances then existing.
Expressions defined in the Facility Agreement have the same meaning when used in
this Drawdown Notice
FACILITY AGREEMENT
--------------------------------------------------------------------------------
SCHEDULE 1
-------------- -------------- ---------------- -------------- ----------------
SEGMENT NO BENEFICIARY LENDING OFFICE FACE AMOUNT ON ACCOUNT OF
1(a)
(b)
(c)
-------------- -------------- ---------------- -------------- ----------------
SCHEDULE 2
------------ ----------------- --------------- ----------------- ---------------
SEGMENT PRINCIPAL AMOUNT [INTEREST AND [OTHER AMOUNTS MATURITY DATE
OF SECURED AMOUNTS IN THE (TO COMPLY WITH
FINANCING NATURE OF CLAUSE 15)]
INTEREST]
1(a)
(b)
(c)
------------ ----------------- --------------- ----------------- ---------------
For and on behalf of
RELEVANT BORROWER/XXXXXX'X BREWING GROUP
By:
[Authorised Officer]
Dated: , [#].
FACILITY AGREEMENT
--------------------------------------------------------------------------------
ANNEXURE F
FORM OF LETTER OF CREDIT
--------------------------------------------------------------------------------
COMMONWEALTH BANK OF AUSTRALIA
[Date]
TO: [Name and Address of Beneficiary]
Dear Sirs,
Commonwealth Bank of Australia has pleasure in detailing the particulars of our
Letter of Credit issued in your favour.
--------------------------------------------------------------------------------
COMMONWEALTH BANK OF AUSTRALIA
IRREVOCABLE STANDBY LETTER OF CREDIT NO. ................
DATED........................,.............
--------------------------------------------------------------------------------
ON ACCOUNT OF: [Relevant Borrower/Group Nominee]
BENEFICIARY: .................(the "Beneficiary")
AMOUNT: Maximum limit of liability
A$/US$/[pound]/EUR/NZ$
[specify currency and figure]
[OTHER CURRENCY] EQUIVALENT: Maximum [Other Currency] limit of liability
[#] (calculated at an exchange rate of:
[SPECIFY RATE] ("Exchange Rate")]
EXPIRY DATE: ...........................,...........
AVAILABLE AT: Commonwealth Bank of Australia, [address]
BY DRAFTS ON: Commonwealth Bank of Australia [address,
marked "Refer to Manager", ***]
FACILITY AGREEMENT
--------------------------------------------------------------------------------
PAYABLE AT: Sight [or, in the case of drafts drawn in
[Other Currency] days after sight]
ENFACED: "Drawn under Commonwealth Bank of Australia
Irrevocable Standby Letter of Credit No.
.............. dated............., ........"
RETURNABLE TO: Commonwealth Bank of Australia
ISSUED IN [Details of Secured Financing] (the "Secured
CONNECTION WITH: Financing")
Drafts drawn under this Letter of Credit must be payable to the credit of an
account in the name of the Beneficiary, must be delivered to the address at
which this Letter of Credit is expressed to be available, at or before 3 p.m.
(at the time where the relevant Borrower is located) on the expiry date
specified above and be accompanied by a statutory declaration stating that:-
(a) the declarants are two officers of the Beneficiary, making the
declaration on behalf of the Beneficiary;
(b) the declarants have authority to make the statutory
declaration on behalf of the Beneficiary;
(c) the statutory declaration is made pursuant to the terms of
Letter of Credit No. ...................;
(d) the amount claimed is not more than the maximum aggregate
amount available under that Letter of Credit;
(e) the amount claimed represents an amount or amounts remaining
unpaid to the Beneficiary in respect of the Secured Financing
in accordance with arrangements made between the Beneficiary
and [the relevant Borrower] ; and
(f) demand for payment of such amount has been made by the
Beneficiary on [the relevant Borrower] and such demand remains
unsatisfied.
The amount of this Letter of Credit will automatically reduce by the amount of
all drawings [after all drawings which have been made in [Other Currency] have
been notionally converted into [currency of credit] at the Exchange Rate. The
[Other Currency] equivalent amount will also reduce by the aggregate amount of
all drawings notionally converted, to the extent necessary, into [Other
Currency] at the Exchange Rate].
[Commonwealth Bank of Australia agrees that drafts drawn under this Letter of
Credit may, if so requested by the Beneficiary in its draft, be payable in
[Other Currency]. Despite the foregoing, Commonwealth Bank of Australia will
only be obliged to comply with that request if:
(i) it has in immediately available funds the requested amount of [Other
Currency];
FACILITY AGREEMENT
--------------------------------------------------------------------------------
(ii) all necessary government and governmental exchange and other
authorities and approvals for the payment of that amount have been
obtained and are in full force and effect; and
(iii) it would not be illegal or impracticable for it to make the requested
payment.
If (i), (ii) or (iii) above applies in relation to the requested payment,
Commonwealth Bank of Australia will promptly notify the Beneficiary and will
discuss with the Beneficiary any alternative means of effecting the payment. If
no alternative means are agreed within 2 days after that notice, then
Commonwealth Bank of Australia shall immediately pay to the Beneficiary an
amount in [US$/A$/[pound]/EUR/NZ$] which is the equivalent of the amount of
requested [Other Currency] notionally converted into that currency at the
Exchange Rate].
There is no responsibility on the part of Commonwealth Bank of Australia to
investigate the authenticity of the declarations or the declarant's capacity or
entitlement to make the statutory declaration.
This Letter of Credit is subject to the Uniform Customs and Practice for
Documentary Credits (1993 Revision) International Chamber of Commerce Brochure
No. 500.
Commonwealth Bank of Australia engages with the Beneficiary that drafts drawn
under and in compliance with the terms of this Letter of Credit will be paid on
presentation to Commonwealth Bank of Australia.
For and on behalf of Commonwealth Bank of Australia
....................... ........................................
Authorised Signatory Authorised Signatory
FACILITY AGREEMENT
--------------------------------------------------------------------------------
ANNEXURE G
EURO DRAWDOWN NOTICE
--------------------------------------------------------------------------------
To: Commonwealth Bank of Australia[ ]
MULTIPLE OPTION FACILITY - DRAWDOWN NOTICE
We refer to the Facility Agreement dated 10 May 1991 (the "Facility Agreement").
Under Clause 10.1 of the Facility Agreement:
(1) we give you irrevocable notice that we wish to draw on [#] (the
"Drawdown Date");
[SUCH DATE IS TO BE A BUSINESS DAY]
(2) the aggregate principal amount to be drawn is EUR[ ];
[SUCH AMOUNT TO COMPLY WITH CLAUSE 2.1]
(3) we request the following Segments:
FACILITY PRINCIPAL FUNDING
AMOUNT PERIOD
Euro Cash Advance * **
Facility
--------------------
* Principal Amount must comply with Clause 10.1.
** Funding Periods to comply with Clause 4.
(4) we request that the proceeds be remitted to account number at
;
(5) we acknowledge that pursuant to Clause 3.4 of the Trust Deed the
representations and warranties in Clause 3 of the Trust Deed are
repeated on the date of this notice with respect to the facts and
circumstances then existing.
Expressions defined in the Facility Agreement have the same meaning when used in
this Drawdown Notice.
For and on behalf of
[FBG TREASURY (EUROPE) B.V./ FBG TREASURY (UK) PLC]
By:
[Authorised Officer]
Dated:
FACILITY AGREEMENT
--------------------------------------------------------------------------------
ANNEXURE H
VERIFICATION CERTIFICATE
--------------------------------------------------------------------------------
To: Commonwealth Bank of Australia
MULTIPLE OPTION FACILITY AGREEMENT
I [name] am a [director]/[secretary] of [SPECIFY BORROWER/XXXXXX'X BREWING
GROUP] [(ACN*)]of [ ] (the COMPANY).
I refer to the Facility Agreement (the FACILITY AGREEMENT) dated 10 May 1991 as
amended between you as Lender, the Company, Xxxxxx'x Brewing Group and others.
Expressions defined in the Facility Agreement bear the same meaning when used in
this Certificate.
I CERTIFY as follows:
1. Attached to this Certificate are true, complete and up to date copies
of each of the following:
(a) the [Memorandum and Articles of Association/articles of
association/Constitution/Articles of Incorporation] of the
Company (marked "A");
(b) a duly executed power of attorney granted by the Company for
the purpose of permitting the execution on behalf of the
Company of the Facility Agreement (marked "B"). Such power of
attorney has not been revoked by the Company and remains in
full force and effect; and
(c) an extract from minutes of meetings of the directors or of a
committee of directors of the Company approving execution,
delivery and performance by the Company of the Facility
Agreement, appointing attorneys for the purpose of execution
of the Facility Agreement, and appointing Authorised Officers
of the Company for the purpose of the Facility Agreement
(marked "C"). Such resolutions have not been amended, modified
or revoked and are in full force and effect.
2. The signatures set out in Schedule 1 are true copies of the signatures
of the Authorised Officers of the Company who have been authorised to
give notices, certificates and communications under or in connection
with the Facility Agreement and are the persons who have been
authorised to sign the Facility Agreement.
BY:
DIRECTOR/SECRETARY
Dated:
