Exhibit 10.59
[LOGO]
Dated ___________ 2001
(1) UBSN LIMITED
as Borrower
(2) SHEPHERD NEAME LIMITED
as Lender
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(pound)600,000
LOAN AGREEMENT
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CONTENTS
Clause
1. Definitions and Interpretation 1
2. The Facility 4
3. Conditions Precedent 4
4. Utilisation of the Facility 5
5. Interest and Interest Periods 6
6. Repayment 6
7. Prepayment 6
8. Representations and Warranties 6
9. Covenants 7
10. Non Payment 8
11. Default 8
12. Default Interest 10
13. Currency of Account 11
14. Payments 11
15. Enforcement Costs and Expenses 12
16. Evidence of Debt 12
17. Assignments 12
18. Waivers and Remedies 13
19. Notices and Service of Xxxxxxxxxxx 00
00. Law and Jurisdiction 14
Schedule
Drawdown Notice 16
THIS AGREEMENT is made on 2001
BETWEEN:-
(1) UBSN LIMITED a company incorporated in England and Wales with registered
number 2367133 whose registered office is at 00 Xxxxxx Xxxx, Xxxxxxx
Xxxxxx, Xxxxxx XX00 0XX (the "Borrower"); and
(2) SHEPHERD NEAME LIMITED a company incorporated in England and Wales with
registered number 138256 whose registered office is at 00 Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxx XX00 0XX (the "Lender").
IT IS HEREBY AGREED as follows:-
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
Save as otherwise provided in this Agreement, the following words and
phrases have the meanings set out below:-
Advance : the advance made or to be made by the Lender to the Borrower
under this Agreement.3333
Brewing Agreement : the contract to brew and supply Kingfisher products
to the Borrower dated 9 October 1998 between United Breweries
International (UK) Limited (1), the Lender (2) and the Borrower (3), as
amended, supplemented, varied or replaced from time to time.
Default Sum : has the meaning given to it in Clause 10.
Default : an Event of Default or any condition, act or event which (with
the giving of notice, lapse of time, making of any determination,
fulfilment of any condition or any combination of any of the foregoing)
may become an Event of Default.
Drawdown Notice : a notice substantially in the form set out in Schedule
1.
Event of Default : any of those events specified in Clause 11.1.
Facility : the loan facility granted to the Borrower in this Agreement.
First Repayment Date : 30 June 2003.
Final Drawdown Date: 30 June 2002.
Interest Period : any of those periods referred to in Clause 5.1 (by
reference to which interest is calculated on an Advance).
Loan : the aggregate principal amount for the time being outstanding
hereunder.
Parent : United Breweries International (UK) Limited, a company
registered in England with registered number 1688201 whose registered
office is at 00 Xxxxxx Xxxx, Xxxxxxx Xxxxxx, Xxxxxx XX00 0XX.
Repayment Date : the First Repayment Date and thereafter 30 June in each
subsequent year up to and including the Termination Date.
Termination Date : the earlier of 30 June 2013 and the first business
day on which the Loan has been repaid or prepaid.
Uplift : means the additional amount payable to the Lender under clause
3.3 of the Brewing Agreement which is calculated by deducting the price
payable to the Lender in respect of the Kingfisher Products (as defined
in the Brewing Agreement) in accordance with the Brewing Agreement from
the price payable in respect of the same following the exercise by the
Lender of its rights under the proviso to clause 3.3 thereof.
USBN Licence : shall have the meaning given to it in the Brewing
Agreement.
UBI Licence : shall have the meaning given to it in the Brewing
Agreement.
VAT : value added tax or any similar tax substituted therefor.
1.2 Interpretation
1.2.1 Any reference in this Agreement to:-
(a) the "Lender" shall be construed so as to include its successors
and assigns;
(b) this "Agreement" or to any other agreement or document shall,
unless the context otherwise requires, be construed as a
reference to this Agreement or such other agreement or document
as the same may from time to time be amended, varied,
supplemented, novated or replaced and shall include any document
which is supplemental to, is expressed to be collateral with, or
is entered into pursuant to or in accordance with, the terms of
this Agreement or, as the case may be, such other agreement or
document;
(c) the "assets" of any person shall be construed as a reference to
all or any part of its business, operations, undertaking,
property, assets, revenues (including any right to receive
revenues) and uncalled capital;
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(d) a "business day" is a reference to a day (other than a Saturday
or Sunday) on which banks generally are open for business in
London;
(e) an "encumbrance" shall be construed as a reference to a
mortgage, charge, assignment by way of security, pledge, lien,
hypothecation, right of set-off, reservation of title
arrangement, preferential right (save as arising under the
general law for the protection of certain classes of creditors)
or any trust, flawed asset or other arrangement for the purpose
of and having a similar effect to the granting of security, or
other security interest of any kind;
(f) "indebtedness" shall be construed as a reference to any
obligation for the payment or repayment of money, whether as
principal or as surety and whether present or future, actual or
contingent;
(g) a "month" is a reference to a period starting on one day in a
calendar month and ending on the numerically corresponding day
in the next calendar month save that, where any such period
would otherwise end on a day which is not a business day, it
shall end on the next business day, unless that day falls in the
calendar month succeeding that in which it would otherwise have
ended, in which case it shall end on the preceding business day
provided that, if a period starts on the last business day in a
calendar month or if there is no numerically corresponding day
in the month in which that period ends, that period shall end on
the last business day in that later month;
(h) a "person" shall be construed as a reference to any individual,
firm, company, corporation, government, state or agency of a
state or any association or partnership (whether or not having
separate legal personality) of two or more of the foregoing;
(i) a "regulation" shall be construed so as to include any
regulation, rule, official directive, requirement, request or
guideline (whether or not having the force of law) of any
governmental body, agency, department or regulatory,
self-regulatory or other authority or organisation;
(j) "sterling" and "(pound)" denotes the lawful currency of the
United Kingdom;
(k) an "unpaid sum" is a reference to an unpaid sum as that term is
defined in Clause 11.1;
(l) the "winding-up", "dissolution", "administration",
"receivership" or "bankruptcy" of a person and references to the
"liquidator", "administrator", "receiver", "administrative
receiver", "receiver and manager", "manager" or "trustee" of a
person shall be construed so as to include any equivalent or
analogous proceedings or, as the case may be, insolvency
representatives or officers under the law of the jurisdiction in
which such person or, as the case may be, insolvency
representatives or
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officers is incorporated or constituted or of any jurisdiction
in which such person or, as the case may be, insolvency
representatives or officers, carries on business.
1.2.2 In construing this Agreement, general words introduced by the word
"other" shall not be given a restrictive meaning by reason of the fact
that they are preceded by words indicating a particular class of acts,
matters or things and general words shall not be given a restrictive
meaning by reason of the fact that they are followed by particular
examples intended to be embraced by the general words.
1.2.3 The headings in this Agreement are for convenience only and shall not
affect its meaning and references to a Clause, Schedule or paragraph are
(unless otherwise stated) to a Clause of, or Schedule to, this Agreement
and to a paragraph of the relevant Schedule.
1.2.4 This Agreement may be signed in any number of counterparts, all of which
taken together shall constitute one and the same instrument. Any party
may enter into this Agreement by signing any such counterpart.
1.2.5 Save where the context otherwise requires, the plural of any term
includes the singular and vice versa.
2. THE FACILITY
2.1 Amount
The Lender grants to the Borrower, upon the terms and subject to the
conditions of this Agreement, a loan facility in an aggregate amount of
(pound)600,000.
2.2 Purpose
The Facility is intended for general corporate purposes and accordingly
the Borrower shall apply all amounts raised by it under this Agreement
in or towards satisfaction of its general corporate financing
requirements provided that the Lender shall not be obliged to concern
itself with the application of amounts raised by the Borrower under this
Agreement.
2.3 Continuing Obligations
The obligations of the Borrower under or in respect of Clauses 12 and 15
shall continue even after the Loan has been repaid or prepaid.
3. CONDITIONS PRECEDENT
Save as the Lender may otherwise agree, the Lender shall be under no
obligation to make the Advance under this Agreement unless it has
received, in form and substance satisfactory to it, certified copies of
the following duly executed documents:-
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3.1 a supplemental agreement to a licence agreement dated 9 October
1998 between United Breweries Limited and United Breweries
International (UK) Limited;
3.2 a supplemental agreement to a distribution agreement dated 9
October 1998 between United Breweries International (UK) Limited
and the Borrower;
3.3 a supplemental agreement to the Brewing Agreement; and
3.4 a letter amending the provisions of a letter dated 9 October
1998 from United Breweries Limited to the Lender.
4. UTILISATION OF THE FACILITY
4.1 Conditions of Utilisation
Save as otherwise provided in this Agreement, one Advance of
(pound)600,000 will be made by the Lender to the Borrower on its request
if:-
4.1.1 not more than ten nor less than two business days before the
proposed date for the making of the Advance, the Lender has
received from the Borrower a Drawdown Notice in respect of the
Advance, receipt of which shall oblige the Borrower to borrow
the Advance so requested on the date specified in such Drawdown
Notice upon the terms and subject to the conditions contained in
this Agreement;
4.1.2 the proposed date for the making of the Advance is a business
day which is or which precedes the Final Drawdown Date; and
4.1.3 either (i) no Default has occurred or would occur if the Advance
was made and the representations set out in Clause 8 to be
repeated on that date are true on and as of the proposed date
for the making of the Advance or (ii) the Lender has agreed
(notwithstanding any such matter) to make the Advance.
4.2 Termination Date
If it has not already been repaid or prepaid, the Loan and all sums
payable hereunder shall be repaid or paid (as the case may be) at close
of business in London on the Termination Date.
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5. INTEREST AND INTEREST PERIODS
5.1 Duration
The period for which the Advance is outstanding shall be divided into
successive periods (each an "Interest Period") each of which (other than
the first Interest Period which shall begin on the date of the Advance)
shall start on the last day of the preceding Interest Period for such
Advance. The duration of each Interest Period (other than the first
Interest Period which shall end on the 30 June immediately following the
date of the Advance) shall be twelve (12) months.
5.2 Date of Payment of Interest
On the last day of each Interest Period, the Borrower shall pay accrued
interest on the Advance.
5.3 Rate of Interest
The rate of interest applicable to the Advance from time to time during
each Interest Period relating to the Advance shall be five per centum
(5%) per annum.
5.4 Calculation of Interest
Interest shall accrue at the rate specified in Clause 5.3 on the amount
of the Advance outstanding from day to day and shall be calculated on
the basis of a year of 365 days and the actual number of days elapsed.
6. REPAYMENT
The Borrower shall repay the Loan in ten (10) equal instalments of
(pound)60,000 each, one instalment falling due and payable on each
Repayment Date, the first such instalment to be paid on the First
Repayment Date.
7. PREPAYMENT
7.1 Prepayment
The Borrower may, if it has given to the Lender not less than thirty
days' prior notice to that effect, prepay at any time without premium or
penalty the whole or any part of the Advance (being an amount or
integral multiple of (pound)60,000).
7.2 Effect of Prepayments
Any prepayment made pursuant to Clause 7.1 shall be applied in or
towards satisfying the Borrower's obligations under Clause 6, and each
such prepayment shall be applied in the inverse order of maturity of the
Borrower's obligations under Clause 6.
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7.3 Notices Irrevocable
Any notice of prepayment given by the Borrower pursuant to Clause 7.1
shall be irrevocable, shall specify the date upon which prepayment is to
be made and the amount of prepayment and shall oblige the Borrower to
make such prepayment on such date.
7.4 No Reborrowings
The Borrower shall not repay all or any part of the Loan except at the
times and in the manner expressly provided for in this Agreement and
shall not be entitled to reborrow any amount repaid or prepaid.
8. REPRESENTATIONS AND WARRANTIES
8.1 Representations and Warranties
The Borrower represents and warrants that:-
8.1.1 Powers and authority : it has full power and authority to enter
into and perform this Agreement and any other document to be
entered into by it pursuant to this Agreement and has taken all
necessary corporate or other action to authorise the execution,
delivery and performance of this Agreement and each such other
document;
8.1.2 Non-Violation : the execution by it of this Agreement and the
exercise by it of its rights and performance of or compliance
with its obligations under this Agreement do not and will not
(a) violate (i) any law or regulation to which it or any of its
assets is subject or (ii) any agreement (including but not
limited to any agreement creating or evidencing the creation of
any indebtedness or any encumbrance) to which it is a party or
which is binding on it or its assets or (b) conflict with its
constitutional documents and in particular will not cause any
limit (whether imposed by an agreement which is binding on it or
by its constitutional documents or otherwise) on the borrowing
or other powers of the Borrower or the exercise of such powers
by its board of directors to be exceeded;
8.1.3 Obligations binding : its obligations under this Agreement are
legal, valid and binding; and
8.1.4 Winding-up : neither the Borrower nor the Parent has taken any
corporate action nor have any other steps been taken or legal
proceedings been started or (to the best of the Borrower's
knowledge and belief) threatened against the Borrower or the
Parent for its winding-up, dissolution or re-organisation or for
the appointment or a receiver, administrator, administrative
receiver, trustee or similar officer of it or of any or all of
its assets.
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8.2 Repetition
Each of the representations and warranties in Clause 8.1 will be correct
and complied with on the date on which the Advance is requested or to be
made and on the last day of each Interest Period as if repeated then by
reference to the then existing circumstances.
9. COVENANTS
9.1 Duration
The undertakings in this Clause 9 shall remain in force from and after
the date of this Agreement and so long as any amount is outstanding
under this Agreement.
9.2 Positive Covenants
The Borrower undertakes that:-
9.2.1 Consents : it will obtain, comply with the terms of and do all
that is necessary to maintain in full force and effect all
authorisations, approvals, licences and consents required by all
applicable laws and regulations to enable it lawfully to enter
into, perform and comply with its obligations under this
Agreement and any document to be entered into pursuant to this
Agreement or to ensure the legality, validity, enforceability or
admissibility in evidence of this Agreement and each such
document in England and Wales;
9.2.2 Notification of Defaults : it will promptly inform the Lender of
the occurrence of any Default and, upon receipt of a written
request to that effect from the Lender, confirm to the Lender
that, save as previously notified to it or as notified in such
confirmation, no Default has occurred; and
9.2.3 Pari passu ranking : it will ensure that its obligations under
this Agreement do and will at all times rank at least equally
and rateably in all respects with all its other unsecured and
unsubordinated obligations save for those obligations
mandatorily preferred by any applicable law.
10. NON PAYMENT
10.1 If, at any time (and on each occasion), and for any reason (and whether
within or beyond the control of any party to this Agreement) the
Borrower does not pay any sum (each a "Default Sum") due from it under
this Agreement at the time and in the manner specified in this
Agreement, then at any time thereafter the Lender may by written notice
to the Borrower exercise its rights pursuant to clause 3.3 of the
Brewing Agreement in which case such Default Sum shall be deemed to be
reduced by the amount of each Uplift actually received by the Lender
under clause 3.3 of the Brewing Agreement on the date of receipt of the
same by the Lender.
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10.2 Upon the Lender becoming entitled to exercise its rights to an Uplift as
set out in Clause 10.1, the Borrower shall not be liable for default
interest under Clause 12.1 on the Default Sum, unless and until such
Default Sum becomes due and payable in accordance with Clause 10.3.
10.3 If, on the 30th June immediately following the Lender becoming entitled
to exercise its rights under Clause 10.1, a Default Sum has not been
reduced to zero, the Borrower shall forthwith pay the balance of such
Default Sum to the Lender.
11. DEFAULT
11.1 Events of Default
Each of the events set out below is an Event of Default:-
11.1.1 Non-Payment of Default Sum : The Borrower does not pay any
monies due from it under Clause 10.3 at the time specified in
that Clause and in the manner specified in this Agreement;
11.1.2 Breach of representation or warranty : Any representation or
warranty made or deemed to be repeated by the Borrower in this
Agreement or in any document delivered pursuant to it is not
complied with or is or proves to have been incorrect or
misleading when made or deemed to be repeated and (if capable of
remedy) is not remedied within 10 days after the Lender has
notified the Borrower thereof.
11.1.3 Breach of undertaking : The Borrower fails duly to perform or
comply with any obligation expressed to be assumed by it in
Clause 2.2 or 9 and (if capable of remedy) is not remedied
within 10 days after the Lender has notified the Borrower
thereof.
11.1.4 Breach of other obligation : The Borrower fails duly to perform
or comply with any other obligation expressed to be assumed by
it in this Agreement and such failure (if capable of remedy) is
not remedied within 10 days after the Lender has notified the
Borrower of default.
11.1.5 Cross-default : The Borrower fails duly to perform or comply
with any other obligation expressed to be assumed by it in the
Brewing Agreement and such failure (if capable of remedy) is not
remedied within 10 days after the Lender has notified the
Borrower of default.
11.1.6 Termination of Brewing Agreement : The Brewing Agreement is (i)
terminated in accordance with its terms, or (ii) terminated or
purported to be terminated by the Borrower and/or the Parent for
any reason whatsoever, save in each case in circumstances where
the termination of the Brewing
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Agreement occurs as a result of the entry into of an equivalent
brewing agreement in accordance with the terms of the Brewing
Agreement.
11.1.7 Termination of the USBN Licence or the UBI Licence: Either the
USBN Licence or the UBI Licence is terminated otherwise than in
accordance with its terms except with the prior written consent
of the Lender.
11.1.8 Insolvency : Either the Borrower or the Parent is unable to pay
its debts as they fall due (or, in the reasonable opinion of the
Lender, is or could be deemed by law or by a court to be unable
to pay its debts), stops, suspends or threatens to stop or
suspend payment of all or any part of its indebtedness or
commences negotiations with any one or more of its creditors
with a view to the general readjustment or re-scheduling of all
or any part of its indebtedness or makes a general assignment
for the benefit of, or composition with, its creditors or a
moratorium is agreed or declared in respect of, or affecting,
all or any part of its indebtedness.
11.1.9 Enforcement proceedings : A distress, attachment, execution,
diligence or other legal process is levied, enforced or sued out
on or against all or any part of the assets of the Borrower and
is not discharged or stayed within 10 days.
11.1.10 Winding-up : The Borrower or the Parent takes any corporate
action or other steps are taken or legal or other proceedings
are started for its winding-up, dissolution or re-organisation
other than for the purposes of a bona fide, solvent scheme of
reconstruction or amalgamation previously approved in writing by
the Lender or for the appointment of a receiver, administrator,
administrative receiver, trustee or similar officer of it or of
any or all of its assets.
11.1.11 Encumbrance enforceable : Any encumbrance on or over the assets
of the Borrower becomes enforceable and any step (including the
taking of possession or the appointment of a receiver, manager
or similar person) is taken to enforce that encumbrance.
11.1.12 Cessation of business : The Borrower ceases to carry on the
business it carries on today or enters into any unrelated
business.
11.1.13 Illegality : It is or will become unlawful for the Borrower to
perform or comply with any of its obligations under this
Agreement, or any such obligation is not or ceases to be legal,
valid and binding.
11.1.14 Repudiation : The Borrower repudiates, or does or causes to be
done anything evidencing an intention to repudiate this
Agreement.
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11.2 Acceleration
If at any time and for any reason (and whether within or beyond the
control of any party to this Agreement) any Event of Default has
occurred, then at any time thereafter, whether or not any Event of
Default is continuing, the Lender may by written notice to the
Borrower:-
11.2.1 declare the Facility to be cancelled whereupon it shall be so
cancelled and the Commitment shall be reduced to zero; and/or
11.2.2 declare the Loan, all unpaid accrued interest or fees and any
other sum then payable under this Agreement to be due and
payable on demand or on such date as it may specify in such
notice, whereupon it shall become so due and payable on demand
or on such date (as the case may be) together with all such
accrued interest and any other sums then owed by the Borrower
under this Agreement.
12. DEFAULT INTEREST
12.1 Interest on Unpaid Sums
Subject to Clause 10.2, if the Borrower does not pay any sum payable by
it under this Agreement on its due date in accordance with the
provisions of Clause 6 or if any sum due and payable by the Borrower
under any judgment of any court in connection with this Agreement is not
paid on the date of such judgment, it shall pay interest on the balance
for the time being outstanding (both before and after judgment) (such
balance being referred to in this Agreement as the "unpaid sum") for the
period beginning on such due date or, as the case may be, the date of
such judgment, at the rate of two per cent (2%) per annum above the rate
of interest specified in Clause 5.3 as the Lender shall (acting
reasonably) determine in good faith.
12.2 Payment and Compounding of Default Interest
Any interest which shall have accrued due under Clause 12.1 in respect
of an unpaid sum shall be due and payable and shall be paid by the
Borrower on such date as the Lender may specify by written notice to the
Borrower. If not paid on the due date, the interest shall be added to
and form part of the unpaid sum on which interest shall accrue and be
payable in accordance with the provisions of this Clause 12.
13. CURRENCY OF ACCOUNT
Sterling is the currency of account and payment for all sums at any time
due from the Borrower under or in connection with this Agreement
(including damages).
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14. PAYMENTS
14.1 No Set-Off or Counterclaim
All payments made by the Borrower under this Agreement shall be made
free and clear of and without any deduction for or on account of any
set-off or counterclaim.
14.2 Euro
In the event that:-
14.2.1 any currency in which any of the obligations under this
Agreement is denominated from time to time is changed or
replaced at any time after the date of this Agreement (whether
as a result of the introduction of, changeover to or operation
of a single or unified European currency or otherwise); and/or
14.2.2 any price source of the Euro or the national currency of any
European Union member state disappears or is replaced; and/or
14.2.3 any market conventions relating to the fixing and/or calculation
of interest are changed or replaced,
or any provision, arrangement or proposal is made for any such event to
occur, then in each such case this Agreement will be amended to the
extent the Lender (acting reasonably) considers necessary or desirable
to reflect that event, provision, arrangement or proposal and so as to
preserve, insofar as possible, the commercial effect of this Agreement
prior to that event, provision, arrangement or proposal. Where any such
event, provision, arrangement or proposal enables any obligation under
this Agreement to be discharged by payment in any one of a number of
different currencies, the relevant obligation shall be discharged by
payment in the currency (being one of that number) designated by the
Lender.
14.3 Tax
All payments to be made by the Borrower to the Lender under this
Agreement shall be made free and clear of and without deduction for or
on account of tax unless the Borrower is required by law to make such a
payment subject to the deduction or withholding of tax. If the Borrower
makes any payment under this Agreement in respect of which it is
required by law to make any deduction or withholding, it shall pay the
full amount to be deducted or withheld to the relevant taxation or other
authority within the time allowed for such payment under applicable law
and shall deliver to the Lender within thirty days after it has made
such payment to the applicable authority an original receipt or other
appropriate evidence issued by such authority evidencing the payment to
such authority of all amounts so required to be deducted or withheld
from such payment.
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15. ENFORCEMENT COSTS AND EXPENSES
The Borrower shall, from time to time on demand of the Lender, reimburse
the Lender for all costs and expenses (including legal fees) together
with VAT thereon incurred in or in connection with the preservation
and/or enforcement of any of the rights of the Lender under this
Agreement.
16. EVIDENCE OF DEBT
A certificate issued by the Lender (acting reasonably) as to any sum
payable to it under this Agreement shall, in the absence of manifest
error, be conclusive for the purposes of this Agreement and prima facie
evidence in any legal action or proceedings arising out of or in
connection with this Agreement.
17. ASSIGNMENTS
17.1 Benefit of Agreement
This Agreement shall be binding upon and enure to the benefit of each of
the Borrower and the Lender and each of their respective successors and
assigns. The Borrower shall not be entitled to assign all or any of its
rights or obligations under this Agreement but the Lender may at any
time with the prior consent of the Borrower (not to be unreasonably
withheld or delayed) assign all or any of its rights under this
Agreement to any other party.
17.2 Disclosure of Information
The parties shall each prior to and after the Termination Date keep
strictly confidential the existence and terms of this Agreement until
such time as such information comes into the public domain through no
fault of the party disclosing it PROVIDED THAT the obligations imposed
by this Clause 17.2 shall not prevent either party disclosing such
information to:-
17.2.1 any bank or other financial institution which provides, or with
which a party is in negotiations for the provision of, banking
facilities;
17.2.2 its professional advisers (including without limitation its
accountants, lawyers and financial advisers);
17.2.3 its auditors;
17.2.4 any person to whom it is required to disclose such information
by any law, regulatory requirement or regulatory authority; and
17.2.5 any other person with the consent of the other party to this
Agreement (such consent not to be unreasonably withheld or
delayed).
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18. WAIVERS AND REMEDIES
No failure to exercise, nor any delay in exercising, on the part of the
Lender, any right or remedy under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any right or
remedy prevent any further or other exercise of such right or remedy or
the exercise of any right or remedy. The rights and remedies provided in
this Agreement are cumulative and not exclusive of any rights or
remedies provided by law.
19. NOTICES AND SERVICE OF PROCEEDINGS
19.1 General
Any demand, notice or other communication or document (a "Notice") to be
made or delivered under this Agreement shall be made or delivered by in
writing signed by or on behalf of the party giving it and shall be
irrevocable without the written consent of the parties on whom it is
served. Each Notice to be made on or delivered to any party to this
Agreement may (unless that other person has by 15 days' written notice
to the other specified another address or fax number) be made or
delivered to that other person at its registered office or the address
or fax number (if any) set out under its name at the end of this
Agreement.
19.2 Mode of Service
Service of any Notice to be made or delivered under this Agreement may
be made:-
19.2.1 by leaving it at the address for service referred to in Clause
19.1;
19.2.2 by sending it by pre-paid first class letter (or by airmail if
to or from an address outside the United Kingdom) through the
post to the address for service referred to in Clause 19.1; or
19.2.3 by fax to the fax number of the recipient and so that any fax
shall be deemed to be in writing and, if it bears the signature
of the server or its authorised representative or agent, to
have been signed by or on behalf of the server.
19.3 Deemed Service
Any Notice from the Borrower shall be irrevocable and shall not be
effective until its actual receipt by the Lender. Any other Notice shall
be served or treated as served at the following times:-
19.3.1 in the case of service personally or in accordance with Clause
19.2.1, at the time of such service;
19.3.2 in the case of service by post, at 9.00 a.m. on the business day
next following the day on which it was posted or, in the case of
service to or from an address
14
outside the United Kingdom, at 9.00 a.m. on the fourth business
day following the day on which it was posted; and
19.3.3 in the case of service by fax, if sent before 9.00 a.m. on a
business day, at 11.00 a.m. on the same day, if sent between
9.00 a.m. and 5.30 p.m. on the same business day, two hours
after the time of such service or, if sent after 5.30 p.m. on a
business day or on a day other than a business day, at 9.00 a.m.
on the next following business day.
19.4 Proof of Service
In proving service of any demand, notice, communication or other
document served:-
19.4.1 by post, it shall be sufficient to prove that such demand, notice,
communication or other document was correctly addressed, full postage
paid and posted; and
19.4.2 by fax, it shall be sufficient to prove that the fax was
followed by such machine record as indicates that the entire
fax was sent to the relevant number.
20. LAW AND JURISDICTION
20.1 Governing Law
This Agreement shall be governed by, and construed in accordance with,
English law.
20.2 Jurisdiction
The parties irrevocably submit for the exclusive benefit of the Lender
to the non-exclusive jurisdiction of the courts of England and Wales in
respect of any claim, dispute or difference arising out of or in
connection with this Agreement.
AS WITNESS the hands of the duly authorised representatives of the
parties hereto the day and year first before written.
15
SCHEDULE
DRAWDOWN NOTICE
From: UBSN Limited
00 Xxxxxx Xxxx
Xxxxxxx Xxxxxx
Xxxxxx XX00 0XX
Xxxxxxx
To: Shepherd Neame Limited
00 Xxxxx Xxxxxx
Xxxxxxxxx
Xxxx XX00 0XX
Xxxxxxx
o 2001
Dear Sirs,
1. We refer to the agreement (as from time to time amended, varied,
supplemented, novated or replaced, the "Loan Agreement") dated [ ] 2001
and made between UBSN Limited as Borrower and Shepherd Neame Limited as
Lender. Terms defined in the Loan Agreement have the same meanings in
this notice.
2. We hereby give you irrevocable and unconditional notice that, pursuant
to the Loan Agreement and on [date of proposed Advance], we wish to
borrow an Advance in the amount of (pound)600,000 upon the terms and
subject to the conditions contained in the Loan Agreement.
3. We confirm that, as at today's date, the representations and warranties
set out in Clause 8 of the Loan Agreement are true and that no Default
has occurred or is foreseen.
Yours faithfully,
...................................
for and on behalf of
UBSN Limited
16
THE BORROWER
SIGNED for and on behalf of )
UBSN LIMITED )
by:- )
Address: 00 Xxxxxx Xxxx
Xxxxxxx Xxxxxx
Xxxxxx XX00 0XX
Fax: 00000 000000
Attention: Any Director
THE LENDER
SIGNED for and on behalf of )
SHEPHERD NEAME LIMITED )
by:- )
Address: 00 Xxxxx Xxxxxx
Xxxxxxxxx
Xxxx XX00 0XX
Fax: 00000 000000
Attention: The Company Secretary
