Exhibit 99(b)(3)
FACILITY AGREEMENT
---------------------------------------
FBG TREASURY (EUROPE) B.V.
FBG TREASURY (USA) INC.
FBG TREASURY (UK) PLC
FBG TREASURY (AUST.) LIMITED
FBG CANADIAN TREASURY INC.
XXXXXX'X BREWING GROUP LIMITED
BANK OF AMERICA NATIONAL ASSOCIATION (FORMERLY KNOWN AS BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION )
BA AUSTRALIA LIMITED
BANK OF AMERICA CANADA
BANK OF AMERICA NATIONAL ASSOCIATION (FORMERLY KNOWN AS BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION) AMSTERDAM BRANCH
XXXXXX XXXXXXXX & HEDDERWICKS
Stock Exchange Centre
000 Xxxxxxx Xxxxxx
Xxxxxxxxx 0000 Xxxxxxxxx
Tel 00 0 0000 0000
Fax 00 0 0000 0000
lymm M0110056630v3 894231
(C) Copyright Xxxxxx Xxxxxxxx & Hedderwicks 2000
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
--------------------------------------------------------------------------------
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 2
1.1 Definitions 2
1.2 Interpretation 9
1.3 Trust Deed 9
1.4 Repayment and prepayment 9
1.5 Principal 10
1.6 Replacement of existing Facility Agreement 10
1.7 Obligation to Indemnify 10
2. COMMITMENT 11
2.1 Commitment 11
2.2 Cancellation at end of Availability Period 11
2.3 Cancellation during Availability Period 11
3. PURPOSE 11
4. SELECTION OF FUNDING PERIODS 11
5. REPAYMENT 12
5.1 Repayment 12
6. PREPAYMENT AND CASH COVER 12
6.1 Voluntary prepayments 12
6.2 Special prepayments 12
6.3 Limitation on prepayments 12
6.4 Interest, break and other costs 12
6.5 Repayment or cash cover 13
6.6 Interest 13
6.7 Application 13
6.8 Repayment of cash cover 13
6.9 Notification of amount 13
PAGE(I)
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
------------------------------------------------------------------------------
7. STERLING CASH ADVANCE FACILITY 14
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. CDN$ CASH ADVANCE FACILITY 17
9.1 Advance of Segment 17
9.2 Interest rate and notification 17
9.3 Basis of calculation of interest 18
9.4 Payment of interest 18
9.5 Netting off 18
10. US$ 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. EURO 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
PAGE (II)
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
------------------------------------------------------------------------------
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 23
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 25
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. BANKER'S ACCEPTANCE FACILITY 28
14.1 Advance of Segment 28
14.2 Stamping Fee 28
14.3 Indemnity 28
14.4 Payment 29
14.5 Sale of Banker's Acceptances 29
15. PAYMENTS AND TAXATION 29
15.1 Time and place 29
15.2 No deduction 29
15.3 Payment to be made on Business Day 29
15.4 Appropriation where insufficient moneys
available 29
15.5 Additional payments 30
15.6 Survival of obligations 30
15.7 Reimbursement 30
PAGE (III)
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
----------------------------------------------------------------------------
16. CHANGES IN LAW 31
16.1 Increased costs 31
16.2 Minimisation 32
16.3 Survival of obligations 32
17. ILLEGALITY 32
17.1 Illegality 32
17.2 Bank of England requirements 33
18. CONDITIONS PRECEDENT AND SUBSEQUENT 33
18.1 Conditions precedent to drawdown 33
18.2 Conditions precedent to each Segment 34
18.3 Condition subsequent 34
19. REPRESENTATIONS, WARRANTIES, COVENANTS AND EVENTS OF
DEFAULT 35
19.1 Representations and Warranties 35
19.2 Trust Deed covenants 35
19.3 Events of Default 35
20. SET-OFF 35
20.1 Set-off 35
20.2 Currency exchange 35
21. INDEMNITIES 36
22. CURRENCY INDEMNITY 36
22.1 General 36
22.2 Liquidation 37
23. STAMP DUTIES 37
23.1 Borrowers to pay 37
23.2 FID etc included 37
23.3 Indemnity 37
PAGE (IV)
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
-----------------------------------------------------------------------------
24. EXPENSES 38
25. WAIVERS, REMEDIES CUMULATIVE 38
25.1 Waivers 38
25.2 Rights cumulative 38
26. SEVERABILITY OF PROVISIONS 38
27. SURVIVAL OF REPRESENTATIONS AND INDEMNITIES 38
27.1 Survival of representations 38
27.2 Continuing indemnities 39
28. MORATORIUM LEGISLATION 39
29. CONTROL ACCOUNTS 39
30. INTEREST ON OVERDUE AMOUNTS 39
30.1 Default interest 39
30.2 Rate 39
30.3 Basis of calculation 40
30.4 Capitalisation 40
30.5 Contingent amounts 40
30.6 Risk fee 40
31. FEES 41
32. ASSIGNMENTS 41
32.1 Assignments by Borrowers and Xxxxxx'x
Brewing Group 41
32.2 Assignment by Lenders 41
32.3 Disclosure 41
32.4 Change of Lending Office 42
32.5 No increased costs 42
33. NOTICES 42
33.1 Notices 42
33.2 To Borrowers or Xxxxxx'x Brewing Group 43
PAGE (V)
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
------------------------------------------------------------------------------
34. AUTHORISED OFFICERS 44
35. GOVERNING LAW AND JURISDICTION 45
36. COUNTERPARTS 45
37. ACKNOWLEDGEMENT BY THE BORROWERS AND XXXXXX'X BREWING
GROUP 45
38. UK LENDER REPRESENTATIONS 46
38.1 Eligible bank warranty 46
38.2 Section 349 warranty 46
38.3 Ceasing to be a Qualifying Lender 46
39. ATTORNEYS 46
SCHEDULE 1 47
Lending Offices 47
SCHEDULE 2 49
Additional Domestic Sterling Costs 49
ANNEXURE A 51
Sterling Drawdown Notice 51
ANNEXURE B 53
A$ Drawdown Notice 53
ANNEXURE C 55
Cdn$ Drawdown Notice 55
ANNEXURE D 57
US$ Drawdown Notice 57
ANNEXURE E 58
Euro Drawdown Notice 58
PAGE (VI)
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
------------------------------------------------------------------------------
ANNEXURE F 59
Verification Certificate 59
PAGE (VII)
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
-----------------------------------------------------------------------------
DATE Date 8 May 1996
PARTIES
1. FBG TREASURY (EUROPE) B.V. of Strawinskylaan 3127, 1077 ZX
Amsterdam, The Netherlands (TREASURY EUROPE)
2. FBG TREASURY (USA) INC. of Xxxxx 000, 000 Xxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxx XXX 00000 (TREASURY USA).
3. FBG TREASURY (UK) PLC of Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxxxx,
Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxx XX00 0XX (TREASURY UK).
4. FBG TREASURY (AUST.) LIMITED (ACN 006 865 738) of 00 Xxxxx-
xxxx Xxxxxxxxx, Xxxxxxxxx Xxxxxxxx, Xxxxxxxxx (TREASURY AUST.).
5. FBG CANADIAN TREASURY INC. of 000 Xxxxx Xxxxxx Xxxx, Xxxxx
Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx X0X 0X0 (TREASURY CANADA).
6. XXXXXX'X BREWING GROUP LIMITED (ACN 000 000 000) of 00 Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxx Xxxxxxxx, Xxxxxxxxx (XXXXXX'X BREWING GROUP)
7. BANK OF AMERICA NATIONAL ASSOCIATION (FORMERLY KNOWN AS BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION) (ARBN 064 874
531) of 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XXX acting through
its Lending Offices listed in the First Schedule (the FIRST
LENDER)
8. BA AUSTRALIA LIMITED (ACN 004 617 341) of 00-00 Xxxxxx Xxxxx,
Xxxxxx, Xxxxxxxxx, acting through its Lending Office listed in
the First Schedule (the SECOND LENDER)
9. BANK OF AMERICA CANADA of 000 Xxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxx
acting through its Lending Office listed in the First Schedule
(the THIRD LENDER).
10. BANK OF AMERICA NATIONAL ASSOCIATION (FORMERLY KNOWN AS BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION), AMSTERDAM
BRANCH acting through its Lending Office listed in the First
Schedule (the FOURTH LENDER).
RECITALS
A Each Borrower and Xxxxxx'x Brewing Group have requested the
Lenders together to provide the Borrowers with a facility under
which financial accommodation of up to a maximum amount of
Cdn$60,000,000 or its equivalent in Sterling, Australian
dollars, US dollars, or Euros may be made available to the
Borrowers.
PAGE 1
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
-----------------------------------------------------------------------------
B Each of the Borrowers and Xxxxxx'x Brewing Group is party to the
FBG Group Financing Trust Deed (the "Trust Deed") dated 21
February 1993 which will, when the Facilities provided under
this Agreement become Approved Facilities under the Trust Deed,
set out certain of the terms and conditions which apply to any
financial accommodation which may be made available to each
Borrower under this Agreement.
C The Lenders (as defined below) comprise a Creditor Group and the
First Lender (acting through its Melbourne Branch) shall be
their Creditor Group Representative for the purposes of the
Trust Deed.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
----------------------------------------------------------------
1.1 DEFINITIONS
When used in this Agreement the following terms shall have the
following meanings unless the context otherwise requires.
"A$" 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 12.
"APPROVED FACILITY CERTIFICATE" means a certificate signed by an
Authorised Officer of Xxxxxx'x Brewing Group under Clause 8 of the
Trust Deed.
"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.
"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 Relevant Australian
Lender those rates cease to reflect the Lender's cost
of funding to the same extent as at the date of this
Agreement,
PAGE 2
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
-----------------------------------------------------------------------------
then the Bank Xxxx Rate will be the rate
determined by the Relevant Australian Lender to be the
arithmetic mean of the bid rates quoted to the Relevant
Australian Lender by each of the three Australian banks
selected by the Relevant Australian Lender at or about
that time on that date for bills of exchange which are
accepted by an Australian bank selected by the Relevant
Australian 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 Relevant Australian Lender
to be its cost of funds.
Rates will be expressed as a yield per cent per annum to maturity.
"BANKER'S ACCEPTANCE" means a drawing in Canadian dollars by Treasury
Canada on the Third Lender and accepted or stamped by the Third Lender
pursuant to this Agreement.
"BANKER'S ACCEPTANCE FACILITY" means the facility
provided under Clause 13.1.
"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.
"BORROWER" means Treasury Europe, Treasury USA,
Treasury UK, Treasury Aust., or Treasury Canada.
"BUSINESS DAY" means:
(c) 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 and Sydney;
(iii) the US$ Cash Advance Facility, a week day on which
banks are open for business in Toronto, New York City
and San Francisco;
(iv) the Cdn$ Cash Advance Facility or the Banker's
Acceptance Facility, a week day on which banks are
open for business in Toronto;
PAGE 3
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
------------------------------------------------------------------------------
(v) the Euro Cash Advance Facility, a week day on which
banks are open for business in Amsterdam and the
location of the Fourth Lender;
(d) for the purpose of determining an Exchange Rate, a week day on
which the London foreign exchange market is open;
(e) 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, A$
Cash Advance Facility, the Cdn$ Cash Advance Facility or the US$ Cash
Advance Facility, or the Euro Cash Advance Facility.
"CDN$" or "CANADIAN DOLLARS" means the lawful
currency of Canada.
"CDN$ CASH ADVANCE FACILITY" means the facility provided under Clause
9.
"COMMITMENT" means, save as otherwise provided herein, Cdn$60,000,000
as reduced or cancelled under this Agreement.
"CURRENT CANADIAN DOLLAR VALUE" means on any day in
relation to a Segment or part of a Segment:
(a) denominated in Sterling, Australian dollars, US dollars or
Euros the principal amount of that Segment or part as at that
day converted to Canadian dollars on that day at the Exchange
Rate applicable to that day; and
(b) denominated in Canadian dollars, the principal amount of that
Segment or part as at that day.
"DRAWDOWN DATE" means:
(a) in relation to the Xxxxxxxx Xxxx Facility, the
Sterling Cash Advance Facility, the A$ Xxxx
Facility, the A$ Cash Advance Facility, the
Cdn$ Cash Advance Facility, the US$ Cash
Advance Facility or the Euro Cash Advance
Facility, the date on which any Segment
under this Agreement is or is to be drawn;
and
(b) in relation to the Banker's Acceptance Facility, the date on
which any Banker's Acceptances are to be accepted or stamped
by the Third Lender in accordance with this Agreement.
"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 First 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
PAGE 4
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
-----------------------------------------------------------------------------
proposed to be discounted by the First Lender on that date can be
discounted by the First 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
11.
"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 Fourth Lender there is no or is no
longer a Reuters screen page appropriate for the Euro for that
Funding Period, the Fourth 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 Fourth Lender those
rates cease to reflect the Fourth 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 Fourth
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 interbank market at or about 11.00am
(Brussel's time) two Business Days before that Funding Period
for the making of Euro deposits with the Fourth 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 screen Canadian
dollar cross rates page; 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.
PAGE 5
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
"EXCLUDED TAX" means:
(a) any Tax imposed by any jurisdiction on the net income of a
Lender as a consequence of that 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 First Lender as a result of the First
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 a Lender; or
(d) which is imposed as a result of a 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 Cdn$
Cash Advance Facility, the US$ Cash Advance Facility, the Euro Cash
Advance Facility or the Banker's Acceptance Facility.
"FEE LETTER" means the fee letter dated 16 November, 1995 from the
First Lender to Xxxxxx'x Brewing Group, as updated or replaced from
time to time by any of the Lenders.
"FUNDING PERIOD" means in relation to a Segment of:
(a) a Xxxx Facility or the Banker's Acceptance Facility,
the Tenor of the relevant Bills or Banker's Acceptance
(as the case may be) comprising that Segment; and
(b) a Cash Advance Facility, a period for the fixing of
interest rates for, and the funding of, such
Segment,
such period to commence on the Drawdown Date of that Segment and have a
duration selected under Clause 4.
"LENDER" means any of the First Lender, the Second
Lender, the Third Lender and the Fourth Lender.
"LENDING OFFICE" means, in respect of a Facility and payments to be
made to a Lender in a particular currency, the office of that Lender so
designated in the First Schedule or such other branch, office or agency
as it may, subject to
PAGE 6
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
------------------------------------------------------------------------------
Clause 32.4, designate for the purposes of this Agreement by notice to
Xxxxxx'x Brewing Group.
"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 First Lender (in the case
of the Sterling Cash Advance Facility) or
the Third Lender (in the case of the US$
Cash Advance Facility) to be the arithmetic
mean (rounded upwards, if necessary, to the
nearest 1/16 of 1%) of the rates displayed
on the Reuters screen page LIBOR (in the
case of a Segment under the US$ Cash Advance
Facility) or LIBP (in the case of a Segment
under the Sterling Cash Advance Facility)
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 First Lender or the Third
Lender (as the case may be), there is no or
is no longer a Reuters screen page
appropriate for the relevant currency, the
First Lender or the Third Lender (as the
case may be) 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 First Lender or the
Third Lender (as the case may be), those rates cease
to reflect that 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 First Lender or
the Third Lender (as the case may be) 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 Funding Period) for the making of deposits
with the First Lender or the Third Lender (as the case may be)
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 the nearest
1/16th of 1%.
"MARGIN" means the margin set out in the Fee Letter.
"PRIME INTEREST RATE" means, in relation to a Funding Period of a
Segment under the Cdn$ Cash Advance Facility, the variable rate of
interest per annum determined by the Third Lender from time to time as
its rate for Canadian dollar loans made by the Third Lender in Canada
from time to
PAGE 7
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
------------------------------------------------------------------------------
time, being a variable per annum reference rate of interest adjusted
automatically upon change by the Third Lender.
"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, the First Lender shall have the power
to amend Clause 38.2 of this Agreement at any time and from time to
time, by notice to Treasury UK, in such manner as it may reasonably
determine to be appropriate in the circumstances.
"REPAYMENT DATE" means 31 August 2000, or such later date as Xxxxxx'x
Brewing Group and each of the Lenders may agree.
"SAME DAY FUNDS" means:
(a) in the case of Sterling, the manner of payment in Sterling
which the First 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, a bank cheque or other
immediately available funds;
(c) in the case of US dollars or Canadian dollars, the manner of
payment in the currency concerned which the Third Lender
specifies to Treasury (USA) or Treasury Canada (as the case
may be) as being customary for the settlement in that currency
of transactions of the type contemplated by this Agreement; or
(d) in the case of Euros, the manner of payment in Euros
which the Fourth Lender specifies from time
to time to Treasury Europe as being
customary at the time for settlement of
transactions of the type contemplated by
this Agreement or, if no manner is
specified, immediately available funds in
Euros.
"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.
PAGE 8
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
------------------------------------------------------------------------------
"TENOR" means, in relation to any Xxxx or Banker's Acceptance, the
period from the Drawdown Date on which it is accepted until its
maturity on the last day of the Funding Period relating to it, as
specified in the Drawdown Notice relating to it.
"TRUSTEE" means National Mutual 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 Canadian Dollar Value of all outstanding Segments at
that time.
"US$" or "US DOLLARS" means the lawful currency of
the United States of America.
"US$ CASH ADVANCE FACILITY" means the facility provided under Clause
10.
1.2 INTERPRETATION
(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 references in those Clauses to "Deed" and "Trustee" are
replaced with "Agreement" and "Lender" respectively.
(b) The Fee Letter shall be deemed to form part of this Agreement
and references to "this Agreement" shall be construed
accordingly.
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 Lenders 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) Each 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
a 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 a Lender of the principal amount of the relevant
Segment or part; and
PAGE 9
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
------------------------------------------------------------------------------
(c) all or part of a Segment of a Banker's Acceptance Facility,
means payment to the Third Lender of the total face amount of
all Banker's Acceptances comprising the Segment or part.
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
(c) a Banker's Acceptance Facility, the aggregate face amount of
all Banker's Acceptances comprising the Segment or part.
1.6 REPLACEMENT OF EXISTING FACILITY AGREEMENT
(a) With effect on and from the date (the "Replacement
Date") on which the conditions precedent in Clause 17 have
been satisfied, this Agreement will replace the Facility
Agreement made on 31 August 1994 between Treasury UK, Xxxxxx'x
Brewing Group and the First Lender (the "Old Agreement").
(b) No line, commitment or similar fees shall accrue in respect of
the Commitment or the Undrawn Commitment during or in respect
of any period during or in respect of which such fees are
accruing on the commitment or the undrawn commitment under the
Old Agreement.
(c) If, on the Replacement Date, any accommodation
provided to Treasury UK is outstanding, the
First Lender shall be taken for all purposes
of this Agreement to have provided that
accommodation to Treasury UK under the
Xxxxxxxx Xxxx Facility or Sterling Cash
Advance Facility (as applicable).
Accordingly, the Commitment will be taken to
have been utilised to the extent of the then
Current Canadian Dollar Equivalent of the
amount of that accommodation.
(d) Within 2 Business Days of the Replacement Date, the First
Lender will provide Xxxxxx'x Brewing Group with a certificate
revoking the Approved Facility Certificate issued by Xxxxxx'x
Brewing Group in connection with
the Old Agreement.
1.7 OBLIGATION TO INDEMNIFY
Despite anything to the contrary in this Agreement, under Clause, 21,
22, 23 and 24 of this Agreement a Borrower is obligated only to pay or
indemnify the Lender which provided or advanced amounts to it under the
relevant Facility.
PAGE 10
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
------------------------------------------------------------------------------
2. COMMITMENT
2.1 COMMITMENT
Subject to this Agreement the Lenders shall make the Facilities
available to the Borrowers but so that the aggregate Current Canadian
Dollar Value of all outstanding Segments will not at any time exceed
the Commitment.
2.2 CANCELLATION AT END OF AVAILABILITY PERIOD
At the close of business (Melbourne time) on the last day of the
Availability Period the Commitment shall be cancelled.
2.3 CANCELLATION DURING AVAILABILITY PERIOD
Xxxxxx'x Brewing Group may from time to time on giving not less than 10
days' prior irrevocable notice to the First Lender cancel all or part
of the Undrawn Commitment. If part, unless the First Lender otherwise
agrees, such part shall be in a minimum of Cdn$2,000,000 and in an
integral multiple of Cdn$2,000,000.
3. PURPOSE
The Facilities are intended for general corporate purposes and,
accordingly, each of the Borrowers shall apply all amounts raised by it
hereunder in or towards satisfaction of its general corporate financing
requirements. The Lenders shall not be obliged to concern themselves
with the application of amounts raised by the Borrowers hereunder.
4. SELECTION OF FUNDING PERIODS
(a) Subject to the subsequent provisions of this Clause, Funding
Periods selected by the relevant Borrower shall be of:
(i) in the case of a Cash Advance Facility, 1, 3 or 6
months duration;
(ii) in the case of the Xxxxxxxx Xxxx Facility, a period
of not less than 30 days but up to
187 days;
(iii) in the case of the A$ Xxxx Facility, 1,2,3 or 6
months;
(iv) in the case of the Banker's Acceptance Facility, a
period of not less than 30 days but up to 180 days,
or, if required, such other period as the
relevant 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.
PAGE 11
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
------------------------------------------------------------------------------
(d) If a Borrower fails to select Funding Periods complying with
this Clause the relevant Lender may vary any Drawdown Notice
to ensure compliance.
5. REPAYMENT
5.1 REPAYMENT
(a) Subject to Clauses 7.5, 8.5, 9.5, 10.5, 11.8 and 12.8, 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
6.1 VOLUNTARY PREPAYMENTS
(a) On giving not less than 10 days' prior irrevocable notice to
the relevant Lender, a Borrower may prepay all or part of the
Principal Outstanding owing by that Borrower. The notice must
specify the amount and date of
prepayment.
(b) Unless the relevant 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,
US$1,000,000 Cdn$1,000,000 or Euro 1,000,000
(as applicable) and an integral multiple of
(pound)1,000,000, A$1,000,000, US$1,000,000,
Cdn$1,000,000 or Euro 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 Lenders have 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 thereto, including but not limited to all
amounts which are payable by it under Clause 21 as a result of the
prepayment.
PAGE 12
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
------------------------------------------------------------------------------
6.5 REPAYMENT OR CASH COVER
If on any four consecutive Business Days the aggregate of the Current
Canadian Dollar Value of all Segments drawn under the Facilities is
greater that 120% of the Commitment then the Borrowers shall, upon the
First 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 any Lender by way of cash cover for the
liabilities of the Borrower to that Lender under this
Agreement an amount, in Canadian dollars,
so that after making the repayment or deposit the aggregate of the
Current Canadian 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.
6.6 INTEREST
All amounts deposited with a Lender by way of cash cover under Clause
6.5(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.
6.7 APPLICATION
Without limiting any other provision of this Agreement the Lender which
holds any deposit made under Clause 6.7 may at any time after the
occurrence of an Event of Default which would entitle a 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.
6.8 REPAYMENT OF CASH COVER
Any amount (or interest on such amount) deposited by way of cash cover
under Clause 6.5(b) shall be repaid to the Borrower which deposited it
on the second Business Day following the date on which the aggregate of
the Current Canadian 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 a 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 each of the Lenders have been fully and finally paid.
6.9 NOTIFICATION OF AMOUNT
The Lender which holds any deposit made under Clause 6.7 shall notify
Xxxxxx'x Brewing Group of the amount of the Current Canadian Dollar
Value
PAGE 13
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
------------------------------------------------------------------------------
(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 First Lender will
(through its Lending Office in the United Kingdom) make
available that Segment to:
National Westminster Bank plc
00, Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Sort code: 60-00-01
Account number: 00000000
Account name: FBG Treasury (UK) PLC
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
11 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 First
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)500,000; or
(ii) the Undrawn Commitment (if less than (pound)500,000),
and shall be a multiple of (pound)500,000 and
shall not cause a breach of Clause 2.1.
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 First 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 First Lender to be
the aggregate of the Margin, LIBOR and the
additional amount referred to in Clause 7.6
for such Funding Period.
PAGE 14
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
-----------------------------------------------------------------------------
(b) If applicable, the First Lender shall notify Treasury UK of
the interest rate determined by it under this Clause as soon
as it is ascertained.
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 (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 First 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 First
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 First 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 First Lender
in accordance with the Second Schedule, as amended by the
First 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 Relevant Australian Lender
will (through its Lending Office in
Australia) make available that Segment to
such account as may be notified to the
Relevant Australian Lender by Treasury Aust.
on the relevant Drawdown Date in Same Day
Funds in Australian Dollars.
PAGE 15
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
-----------------------------------------------------------------------------
(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 a.m. (Melbourne 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 B from
Treasury Aust. to the Relevant Australian
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$500,000; or
(ii) the Australian dollar equivalent (determined at the
Exchange Rate as at the Drawdown Date) of the Undrawn
Commitment (if less than the A$500,000),
and shall be a multiple of A$500,000 and
shall not cause a breach of Clause 2.1.
8.2 INTEREST RATE AND NOTIFICATION
(a) Interest shall accrue from day to day on each Segment
of the A$ Cash Advance Facility for each
Funding Period at the rate per annum agreed
between the Relevant Australian 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 Relevant Australian Lender to be the
aggregate of the Margin and the Bank Xxxx
Rate for such Funding Period.
(b) If applicable, the Relevant Australian 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:
PAGE 16
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
----------------------------------------------------------------------------
(a) the funds required to be provided by the Relevant
Australian 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 Relevant Australian Lender by way of
repayment of the old Segment,
need be paid or made available, as the case may be.
9. CDN$ CASH ADVANCE FACILITY
9.1 ADVANCE OF SEGMENT
(a) Subject to this Agreement, whenever Treasury Canada
requests a Segment of the Cdn$ Cash Advance
Facility, the Third Lender will (through its
Lending Office in Canada) make available
that Segment to such account as may be
notified to the Third Lender by Treasury
Canada on the relevant Drawdown Date in Same
Day Funds in Canadian Dollars.
(b) Unless otherwise agreed, a request by Treasury Canada
for a Segment of the Cdn$ Cash Advance
Facility may be made by telephone, shall be
made prior to 10 a.m. (Toronto 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 Canada to the Third 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 Cdn$ Cash Advance
Facility shall be a minimum of:
(i) Cdn$500,000; or
(ii) the Undrawn Commitment (if less than Cdn$500,000),
and shall be a multiple of Cdn$500,000 and
shall not cause a breach of Clause 2.1.
9.2 INTEREST RATE AND NOTIFICATION
(a) Interest shall accrue from day to day on each Segment
of the Cdn$ Cash Advance Facility for each
Funding Period at the rate per annum agreed
between the Third Lender and Treasury Canada
at the time of a request for a Segment or,
in the absence of such agreement, the rate
per annum determined by the Third Lender to
be the aggregate of the Margin and the Prime
Interest Rate for such Funding Period.
(b) If applicable, the Third Lender shall notify Treasury Canada
of the interest rate determined by it under this Clause as
soon as it is ascertained.
PAGE 17
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
------------------------------------------------------------------------------
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 365 days or 366 days, as the case may be.
9.4 PAYMENT OF INTEREST
Except where this Agreement provides otherwise, Treasury Canada shall
pay such accrued interest in Canadian Dollars on the last day of the
relevant Funding Period.
9.5 NETTING OFF
If Treasury Canada requests a new Segment of the Cdn$ 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 Third Lender
for the account of Treasury Canada in
relation to that new Segment; and
(b) the funds payable by Treasury Canada for the account of the
Third Lender by way of repayment of the old Segment,
need be paid or made available, as the case may be.
10. US$ CASH ADVANCE FACILITY
10.1 ADVANCE OF SEGMENT
(a) Subject to this Agreement, whenever Treasury (USA) or
Treasury Canada requests a Segment of the
US$ Cash Advance Facility the Third Lender
will (through its Lending Office in Canada)
make available that Segment to such account
as may be notified to the Third Lender by
Treasury (USA) or Treasury Canada on the
relevant Drawdown Date in Same Day Funds in
US dollars.
(b) Unless otherwise agreed, a request by Treasury (USA)
or Treasury Canada for a Segment of the US$
Cash Advance Facility may be made by
telephone, shall be made prior to 10 a.m.
(Toronto 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 D from Treasury (USA) or Treasury
Canada to the Third 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$500,000; or
(ii) the US dollar equivalent (determined at the Exchange
Rate as at the Drawdown Date) of the Undrawn
Commitment (if less than US$500,000),
PAGE 18
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
-----------------------------------------------------------------------------
and shall be a multiple of US$500,000 and shall not cause a
breach of Clause 2.1.
10.2 INTEREST RATE AND NOTIFICATION
(a) Interest shall accrue from day to day on each Segment of the
US$ Cash Advance Facility for each Funding Period at the rate
per annum determined by the Third Lender to be the aggregate
of the Margin and LIBOR for such Funding Period.
(b) If applicable, the Third Lender shall notify Treasury (USA) or
Treasury Canada (as the case may be) 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 (USA) or
Treasury Canada (as the case may be) shall pay such accrued interest in
US dollars on the last day of the relevant Funding Period.
10.5 NETTING OFF
If Treasury (USA) or Treasury Canada 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 Third Lender for the
account of Treasury (USA) or Treasury Canada (as the case may
be) in relation to that new Segment; and
(b) the funds payable by Treasury (USA) or Treasury Canada (as the
case may be) for the account of the Third Lender by way of
repayment of the old Segment,
need be paid or made available, as the case may be.
11. EURO CASH ADVANCE FACILITY
11.1 ADVANCE OF SEGMENT
(a) Subject to this Agreement, whenever Treasury Europe
requests a Segment of the Euro Cash Advance
Facility, the Fourth Lender will through its
Lending Office in Schedule 1 make available
that Segment to such account as may be
notified to the Fourth Lender by Treasury
Europe on the relevant Drawdown Date in Same
Day Funds in Euros.
PAGE 19
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
-----------------------------------------------------------------------------
(b) Unless otherwise agreed, a request by Treasury Europe
for a Segment of the Euro Cash Advance
Facility may be made by telephone, shall be
made prior to 11am (Amsterdam time) 2
Business Days before 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 E from Treasury Europe to the
Fourth 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 500,000; or
(ii) the Euro equivalent (determined at the Exchange Rate
as at the Drawdown Date) of the Undrawn Commitment (if
less EUR 500,000).
11.2 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 Fourth Lender to the aggregate of
the Margin and Euro Libor for such Funding Period.
(b) If applicable, the Fourth Lender shall notify Treasury Europe
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 360 days.
11.4 PAYMENT OF INTEREST
Except where this Agreement provides otherwise, Treasury (Europe) shall
pay such accrued interest in Euros on the last day of the relevant
Funding Period.
11.5 NETTING OFF
If Treasury (Europe) 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 Fourth
Lender for the account of Treasury Europe in
relation to that new Segment; and
(b) The funds payable by Treasury Europe for the account of the
Fourth Lender by way of repayment of the old Segment, need be
paid or made available, as the case may be.
PAGE 20
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
------------------------------------------------------------------------------
12. XXXXXXXX XXXX FACILITY
12.1 COMMITMENT
(a) Subject to this Agreement, whenever Treasury UK requests a
Segment of the Xxxxxxxx Xxxx Facility, the First 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 First 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)500,000; or
(ii) the Undrawn Commitment (if less than (pound)500,000),
and shall not cause a breach of Clause 2.1.
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 First Lender and
shall be prepared in accordance with the following.
(a) Each Xxxx shall be expressed to be payable at the First
Lender's Lending Office in the United Kingdom or such other
office of the First Lender in the United Kingdom as the First
Lender shall notify Treasury UK from time to time.
(b) The face amount of each Xxxx shall to the extent possible be
(pound)500,000 or such other amount as the First 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 First 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 First
Lender on behalf of Treasury UK, and completed so that
the space reserved for the name of
PAGE 21
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
------------------------------------------------------------------------------
the payee is left blank, in which case Treasury UK
authorises the First Lender to complete the Xxxx by
inserting as payee the name of the First Lender or
such other person who is to purchase the Xxxx; or
(ii) where the First 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 First 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 First Lender sufficient Bills denominated in Sterling
to enable the First Lender to comply with its obligations to
accept Bills hereunder.
12.3 AUTHORITY
Treasury UK authorises the First Lender upon receipt by the First
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 First Lender so to do.
12.4 ACCEPTANCE
(a) The First 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 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 First
Lender accepts a Xxxx pursuant to this Clause 12 pay to the
First Lender an acceptance fee equal to the Margin, to be
calculated on a daily basis
PAGE 22
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
-----------------------------------------------------------------------------
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 First 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 specified in
Clause 7.1(a) 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
First Lender calculated by reference to the rate per
annum agreed between the First 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 First
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 First 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.
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 First Lender against all liabilities of the
First 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
First Lender.
(b) The First 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.
PAGE 23
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
-----------------------------------------------------------------------------
12.7 CASH COVER
As between the First 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 First
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
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 First 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 First 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 First Lender
had accepted and discounted Bills then only the net amount between:
(a) the funds required to be provided by the First 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 First
Lender by way of repayment of the old Segment,
need be paid or made available, as the case may be.
13. A$ XXXX FACILITY
13.1 COMMITMENT
(a) Subject to this Agreement, whenever Treasury Aust. requests a
Segment of the A$ Xxxx Facility, the Relevant Australian
Lender shall (through its Lending Office in Australia) 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.
(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 Relevant Australian 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$500,000; or
PAGE 24
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
------------------------------------------------------------------------------
(ii) the Australian dollar equivalent (calculated at the
Exchange Rate on the Drawdown Date) of the Undrawn
Commitment (if less than A$500,000),
and shall not cause a breach of Clause 2.1.
13.2 REQUIREMENTS OF BILLS
Each Xxxx shall be in a form which is acceptable to the Relevant
Australian Lender and shall be prepared in accordance with the
following.
(a) Each Xxxx shall be expressed to be payable at the Relevant
Australian Lender's Australian Lending Office or such other
office of the Relevant Australian Lender in Australia as the
Relevant Australian Lender shall notify Treasury Aust. from
time to time.
(b) The face amount of each Xxxx shall to the extent possible be
A$500,000 or such other amount as the Relevant Australian
Lender and Treasury Aust. may agree.
(c) The maturity date of each Xxxx shall be the last day of the
Funding Period of the relevant Segment.
(d) Each Xxxx shall be:
(i) where the Relevant Australian Lender is requested to
accept and discount Bills, drawn by Treasury Aust. and
signed by an Authorised Officer of Treasury Aust. or,
if Treasury Aust. so requests, by an Authorised
Officer of the Relevant Australian Lender on behalf of
Treasury Aust., and completed so that the space
reserved for the name of the payee is left blank, in
which case Treasury Aust. authorises the Relevant
Australian Lender to complete the Xxxx by inserting as
payee the name of the Relevant Australian Lender or
such other person who is to purchase the Xxxx; or
(ii) where the Relevant Australian Lender is requested to
accept Bills only, drawn by Treasury Aust. and signed
by its Authorised Officer or, if Treasury Aust. so
requests, by an Authorised Officer of the Relevant
Australian Lender and payable to Treasury Aust. and
endorsed by Treasury Aust. for delivery to the
proposed purchaser of the Xxxx.
(e) If necessary, Treasury Aust. shall cause each Xxxx to be
stamped with any applicable stamp duty.
(f) Treasury Aust. shall ensure that at all times there are lodged
with the Relevant Australian Lender sufficient Bills
denominated in Australian Dollars to enable the Relevant
Australian Lender to comply with its obligations to accept
Bills hereunder.
13.3 AUTHORITY
Treasury Aust. authorises the Relevant Australian Lender upon receipt
by the Relevant Australian Lender of a request from Treasury Aust. to
provide a
PAGE 25
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
------------------------------------------------------------------------------
Segment under the A$ 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 Relevant Australian
Lender so to do.
13.4 ACCEPTANCE
(a) The Relevant Australian 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
Relevant Australian Lender accepts a Xxxx pursuant to this
Clause 13 pay to the Relevant Australian 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 Relevant Australian 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
Relevant Australian 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
Relevant Australian Lender calculated by reference to
the rate per annum agreed between the Relevant
Australian 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;
PAGE 26
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
------------------------------------------------------------------------------
(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 Relevant
Australian 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 Relevant Australian 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 Relevant
Australian Lender against all liabilities of the Relevant Australian
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 Relevant Australian Lender.
13.7 CASH COVER
As between the Relevant Australian 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 Relevant
Australian 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
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 Relevant Australian 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 Relevant
Australian 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 Relevant Australian Lender had accepted and discounted Bills
then only the net amount between:
(a) the funds required to be provided by the Relevant
Australian Lender for the account of Treasury Aust. in
relation to that new Segment; and
PAGE 27
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
------------------------------------------------------------------------------
(b) the funds payable by Treasury Aust. for the account
of the Relevant Australian Lender by way of
repayment of the old Segment,
need be paid or made available, as the case may be.
14. BANKER'S ACCEPTANCE FACILITY
14.1 ADVANCE OF SEGMENT
(a) Subject to this Agreement, the Third Lender shall at
the request of Treasury Canada issue and accept Banker's
Acceptances for the account of Treasury Canada (expressed to
mature on the last day of the Funding Period of the relevant
Segment and in any event, not later than the Repayment Date)
on the Drawdown Date requested in the relevant Drawdown
Notice.
(b) Treasury Canada will be credited with the discounted amount
of any Banker's Acceptance accepted by the Third Lender less
the amount of the applicable stamping fee.
(c) Unless otherwise agreed, a request by Treasury Canada
for a Segment of the Banker's Acceptance Facility may be made
by telephone, shall be made prior to 10:00 am (Toronto 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 Canada
to the Third Lender. Any telephone request shall contain the
details required in the Drawdown Notice and shall be
irrevocable.
(d) The face amount of any Banker's Acceptance shall be a minimum
of:
(i) Cdn$100,000 and an integral multiple of Cdn$100,000;
or
(ii) the Undrawn Commitment,
and shall not cause a breach of the limits in Clause 2.1.
(e) Subject to this Agreement the Third Lender shall complete,
issue and deliver each Banker's Acceptance in accordance with
Treasury Canada's instructions in the relevant Drawdown
Notice.
14.2 STAMPING FEE
Treasury Canada shall on the day on which any Banker's Acceptance is
issued for its account pay to the Third Lender a fee determined by the
Third Lender to be the Margin calculated on a daily basis and a 365 or
366 day year basis (as the case may be) on the face amount of that
Banker's Acceptance from the date the Banker's Acceptance was accepted
to the date it falls due for payment.
14.3 INDEMNITY
Treasury Canada shall indemnify and keep indemnified the Third Lender
against all liabilities of the Third Lender as acceptor of that
Banker's
PAGE 28
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
------------------------------------------------------------------------------
Acceptance, but, without prejudice to the obligation to provide cash
cover under Clause 6.5, Treasury Canada shall not be required to pay
any amount in excess of the face amount of the relevant Banker's
Acceptance to the extent the relevant liability was incurred as a
result of the fraud or wilful default of the Third Lender.
14.4 PAYMENT
Treasury Canada shall pay to the Third Lender the face amount of the
Banker's Acceptance on its maturity.
14.5 SALE OF BANKER'S ACCEPTANCES
The Third Lender may at any time and from time to time hold, sell,
rediscount or otherwise dispose of any or all Banker's Acceptances
accepted and purchased by it.
15. PAYMENTS AND TAXATION
15.1 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 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 a Lender must be located in the jurisdiction of
its Lending Office for that currency as specified in the First
Schedule.
15.2 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 15.5 or
otherwise.
15.3 PAYMENT TO BE MADE ON BUSINESS DAY
Whenever any payment becomes due 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.
15.4 APPROPRIATION WHERE INSUFFICIENT MONEYS AVAILABLE
Amounts received by a Lender shall be appropriated as between
principal, interest and other amounts as that Lender determines. Any
such appropriation shall override any appropriation made by the
Borrowers or Xxxxxx'x Brewing Group.
PAGE 29
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
-----------------------------------------------------------------------------
15.5 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 relevant Lender
official receipts or other documentation acceptable to that
Lender evidencing payment of such amount; and
(c) unless the Tax is an Excluded Tax, indemnify on
demand that Lender against such Tax and any amounts
recoverable from that Lender in respect of such Tax, and pay
for the account of that Lender such additional amounts as that
Lender may determine to be necessary to ensure that it
receives when due a net amount (after payment of any 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 that Lender.
15.6 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.
15.7 REIMBURSEMENT
(a) For so long as no Event of Default entitling a 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, a Lender in respect of amounts payable under
Clause 15.5 ("Additional Taxes"); and
(ii) that 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, that 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.
PAGE 30
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
------------------------------------------------------------------------------
(b) Nothing in paragraph (a) shall interfere with the
right of a Lender to arrange its Tax affairs in any manner it
thinks fit. In particular, a 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.
16. CHANGES IN LAW
----------------------------------------------------------------
16.1 INCREASED COSTS
Whenever a Lender determines that it or any of its holding 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 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 that Lender or any holding company of
that 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
that Lender or the effective return to that Lender or any of
its holding companies under or in respect of this Agreement or
the Trust Deed is in any way reduced;
(c) the return of that Lender or any of its holding companies on
the capital which is or becomes directly or indirectly
allocated by that Lender or the holding 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 that Lender or any of its holding companies is
reduced,
(including, without limitation, by reason of that Lender or any of its
holding 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) that Lender shall notify Xxxxxx'x
Brewing Group; and
PAGE 31
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
------------------------------------------------------------------------------
(f) on demand from time to time the applicable Borrower or
Borrowers shall pay for the account of that Lender the amount
certified by an Authorised Officer of that Lender which shall
compensate it or its relevant holding 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 in accordance with the practice of
responsible bankers or financial institutions in the country concerned.
16.2 MINIMISATION
(a) (NOTICE): At the time of making such demand the relevant
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
(ii) the calculation (in reasonable detail) on which such
demand is based.
(b) (NO DEFENCE): If that Lender and (if applicable) its holding
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 14 or this Clause could have been avoided.
(c) (NEGOTIATION): At the request of the applicable
Borrower or Xxxxxx'x Brewing Group, that Lender shall
negotiate in good faith with the applicable Borrower with a
view to finding a means by which any such cost, reduction or
payment or loss of tax credit or the effect of any
unlawfulness or impracticability referred to in Clause 17.1
or, if applicable, of the Bank of England's requirements or
requests referred to in Clause 17.2 can be minimised.
16.3 SURVIVAL OF OBLIGATIONS
The obligations of Borrowers under this Clause shall survive the
repayment of any Guaranteed Moneys and the termination of any Relevant
Document.
17. ILLEGALITY
17.1 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 a Lender to make, fund or maintain its Commitment in
respect of a Borrower or participation in any Segment provided to a
Borrower, then:
PAGE 32
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
-----------------------------------------------------------------------------
(a) that Lender may, by notice to that Borrower, terminate its
obligation to that Borrower to provide under this Agreement
its Commitment (to the extent that the Commitment is affected)
or the relevant Segment that is so affected;
(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 relevant Segment together with all fees and other
amounts payable in relation to the relevant Segment; and
(c) such prepayment shall be made immediately, but if in the
opinion of that 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.
17.2 BANK OF ENGLAND REQUIREMENTS
If the First Lender is required or requested by the Bank of England to
retire any outstanding Bills under the Xxxxxxxx Xxxx Facility sold by
the First Lender to any person(s), the First 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 First
Lender in respect of any cost, claim, expense or liability suffered or
incurred by the First Lender in connection therewith (notwithstanding
that the maturity dates of such Bills may not have, and that no Event
of Default may have, occurred).
18. CONDITIONS PRECEDENT AND SUBSEQUENT
18.1 CONDITIONS PRECEDENT TO DRAWDOWN
The right of any of the Borrowers to give the first Drawdown Notice and
the obligations of each Lender under this Agreement are subject to the
condition precedent that the First 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 E (with the attachments (in form and
substance satisfactory to the First 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.
PAGE 33
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
-----------------------------------------------------------------------------
(e) (CREDITOR ACCESSION DEEDS): Counterparts of duly executed Creditor
Accession Deeds under which the Second Lender and Third Lender
become Creditors under the Trust Deed.
18.2 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 that 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 that Lender);
(c) (NO DEFAULT): that no Event of Default or Potential Event of Default
will result from the provision of the financial accommodation;
(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.
18.3 CONDITION SUBSEQUENT
Xxxxxx'x Brewing Group undertakes to each Lender to procure the delivery
to each of the Lenders within 30 days of the date of this Agreement of a
certified extract of the register established under Clause 9 of the Trust
Deed confirming that this Agreement is an Approved Facility for the
purposes of the Trust Deed and that each Lender is a Creditor for the
purposes of the Trust Deed.
PAGE 34
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
--------------------------------------------------------------------------------
19. REPRESENTATIONS, WARRANTIES, COVENANTS AND EVENTS OF DEFAULT
19.1 REPRESENTATIONS AND WARRANTIES
(a) Each of the Borrowers and Xxxxxx'x Brewing Group acknowledges
that each of the Lenders 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 each of the Lenders
in accordance with Clause 3.4 of the Trust Deed.
19.2 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 each of the
Lenders and each of the Lenders is entering into this Agreement in
reliance on those undertakings.
19.3 EVENTS OF DEFAULT
(a) The list of Events of Default and the rights of each 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 each of the Lenders enters into this Agreement in
reliance on the rights conferred under Clause 5 of the Trust
Deed and on the basis that each Lender is and will be entitled
to exercise those rights as a "Creditor".
20. SET-OFF
20.1 SET-OFF
Each of the Borrowers and Xxxxxx'x Brewing Group severally authorises each
Lender (but without obligation on the part of any Lender) if an Event of
Default which would entitle that Lender (as a Creditor) or the Trustee to
make a declaration under Clause 5.2(A) or (B) of the Trust Deed has
occurred and is subsisting to apply any credit balance in any currency
(whether or not matured) in any of its accounts with any branch of that
Lender in or towards satisfaction of any sum at any time due and payable
by it to that Lender under or in relation to any Relevant Document.
20.2 CURRENCY EXCHANGE
A Lender may effect such currency exchanges as are appropriate to
implement such set-off.
PAGE 35
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
--------------------------------------------------------------------------------
21. INDEMNITIES
Each of the Borrowers and Xxxxxx'x Brewing Group shall indemnify each of
the Lenders on demand against any loss, cost, claim, expense or liability
(together with VAT thereon) that each Lender may sustain or incur
(including legal fees and the allocated cost of each Lender's in-house
counsel) as a consequence of:
(a) the occurrence of any Event of Default or Potential Event of
Default;
(b) any falsity, inaccuracy, insufficiency, illegibility or
forgery of or in any Drawdown Notice or any demand,
certificate or declaration or other document sent to a Lender
by facsimile or otherwise which on its face purports to be
signed or authorised by an Authorised Officer;
(c) 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);
(d) 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 a
Lender); or
(e) a 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 a Lender.
Such indemnity shall also cover the amount determined by a Lender as being
incurred or suffered by it as a result of funding any Segment and by
reason of the liquidation or re-employment of deposits or other funds
acquired or contracted for a Lender to fund or maintain any such Segment
or amount (including loss of margin).
22. CURRENCY INDEMNITY
22.1 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 a 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 a result of any judgment or
order); and
(b) the amount actually received by that 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 the case may be shall, to
the extent that it is permitted to do so, as an independent obligation and
PAGE 36
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
--------------------------------------------------------------------------------
notwithstanding any such judgment, indemnify that Lender on demand against
the deficiency.
22.2 LIQUIDATION
In the event of the Liquidation of a Borrower or Xxxxxx'x Brewing Group,
that Borrower and Xxxxxx'x Brewing Group (jointly and severally), shall,
to the fullest extent that they may lawfully do so, indemnify the relevant
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 that 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.
23. STAMP DUTIES
23.1 BORROWERS TO PAY
Each of the Borrowers shall pay or, on demand indemnify each of the
Lenders for, 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 (including any judgment or order given in
connection herewith) or any payment or receipt or any transaction
contemplated by this Agreement.
23.2 FID ETC INCLUDED
The expression "Taxes" shall include any financial institutions duty,
debits tax or other Taxes payable by return and any such Taxes passed on
to the Lenders by any bank or financial institution.
23.3 INDEMNITY
The Borrowers shall indemnify each of the Lenders on demand against any
liabilities resulting from delay or omission to pay such Taxes for which
it is responsible.
PAGE 37
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
--------------------------------------------------------------------------------
24. EXPENSES
The Borrowers shall on demand reimburse each of the Lenders for all costs
and expenses of each of the Lenders incurred in or in connection with:
(a) any subsequent consent, approval, waiver or amendment under or
in relation to this Agreement and the transactions
contemplated herein; and
(b) the amendment, variation, termination or enforcement of, or
the preservation of any rights under, this Agreement and the
transactions contemplated herein including, without
limitation, any expenses incurred in retaining consultants to
evaluate matters of material concern to the Lenders,
including, in each case, reasonable legal costs and expenses (including
the allocated cost of each of the Lender's in-house counsel) together with
any VAT thereon.
25. WAIVERS, REMEDIES CUMULATIVE
25.1 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
thereof, 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.
25.2 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.
26. SEVERABILITY OF PROVISIONS
Any provision of this Agreement which is, or becomes illegal, invalid 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 or impair such provision in any other jurisdiction.
27. SURVIVAL OF REPRESENTATIONS AND INDEMNITIES
27.1 SURVIVAL OF REPRESENTATIONS
All representations and warranties given by a Borrower and/or Xxxxxx'x
Brewing Group in or in connection with this Agreement shall survive the
execution and delivery of this Agreement and final payment of the
Guaranteed Moneys.
PAGE 38
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
--------------------------------------------------------------------------------
27.2 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.
28. 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 a Lender of any right, power or remedy conferred
by this Agreement,
is negated and excluded from this Agreement.
29. CONTROL ACCOUNTS
The accounts kept by each of the Lenders shall constitute sufficient
evidence (unless the contrary is proved) of the amount at any time due
from the Borrowers under this Agreement.
30. INTEREST ON OVERDUE AMOUNTS
30.1 DEFAULT INTEREST
On demand by a Lender from time to time and subject to Clause 30.5, the
relevant Borrower shall pay interest on all amounts due and payable by it
to that Lender under or in relation to this Agreement (including such
amounts due for payment under Clause 5 of the Trust Deed) or under any
judgment or any court in connection herewith and therewith and unpaid
(including interest payable under this Clause) in the currency of the
relevant amount. Interest under this Clause shall accrue, subject to
Clause 30.5, from the date such amount is due and payable.
30.2 RATE
In the case of a Facility, such interest shall accrue, subject to Clause
30.5, 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 relevant Lender to be the aggregate of 3% per annum and the highest
of:
(a) the rate (if any) applicable to such amount immediately prior
to the due date;
PAGE 39
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
--------------------------------------------------------------------------------
(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 that 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 that 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 that Lender may determine from time
to time (or, if no such quotes are available, such equivalent
rate as that Lender may determine); and
(c) the cost incurred by that Lender in funding the relevant
Facility (as certified by that Lender).
30.3 BASIS OF CALCULATION
Interest under Clause 30.2 (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, Canadian or Australian dollars) or 360
days (in the case of unpaid amounts denominated in US dollars or Euros).
30.4 CAPITALISATION
Unless demanded more frequently, interest under this Clause 30 shall
capitalise quarterly.
30.5 CONTINGENT AMOUNTS
Without prejudice to the obligations of a Borrower under Clause 30.6, no
Borrower shall be obliged to pay interest under this Clause 30 on any
amount due and payable under this Agreement or the Trust Deed in respect
of any contingent liability of any Lender in respect of an unmatured Xxxx
or Banker's Acceptance accepted for account of that Borrower until the
maturity date of that Xxxx or Banker's Acceptance.
30.6 RISK FEE
The relevant Borrower shall pay to the relevant Lender a risk fee on all
amounts due and payable by that Borrower to that Lender under this
Agreement or the Trust Deed in respect of any contingent liability of that
Lender in respect of an unmatured Xxxx or Banker's Acceptance but unpaid,
in the currency or currencies of the relevant amounts, at the rate of 3%
per annum of the face amount of the unmatured Xxxx or Banker's Acceptance
from the due date up until the maturity date of that Xxxx or Banker's
Acceptance calculated on the basis of a year of 365 days or 366 days, as
the case may be. 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.
PAGE 40
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
--------------------------------------------------------------------------------
31. FEES
Treasury Canada shall pay to the Third Lender the facility fee on the
Commitment and each of the Borrowers shall pay to the applicable Lender
the Margin as set out in the Fee Letter.
32. ASSIGNMENTS
32.1 ASSIGNMENTS BY BORROWERS AND XXXXXX'X BREWING GROUP
None of the Borrowers and 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 First Lender.
32.2 ASSIGNMENT BY LENDERS
No Lender shall at any time assign or transfer all or any of its rights or
obligations under this Agreement except to another bank or financial
institution and unless:
(a) any necessary prior Authorisation is obtained;
(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) in the case of an assignment or transfer by the First Lender,
Treasury UK is first satisfied that the assignee or transferee
can make the representations in Clause 38; and
(d) 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.
32.3 DISCLOSURE
A Lender may not without the prior consent of Xxxxxx'x Brewing Group
(which shall not unreasonably be withheld or delayed), disclose to an
actual or proposed assignee, transferee or sub-participant copies of any
Relevant Documents or information relating to any member of the Group or
furnished in connection with this Agreement or any other Relevant
Document.
PAGE 41
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
--------------------------------------------------------------------------------
32.4 CHANGE OF LENDING OFFICE
A Lender may not change any of its Lending Offices unless:
(i) it gives prior notice to Xxxxxx'x Brewing Group and consults
with Xxxxxx'x Brewing Group; and
(ii) its new Lending Office is in the same jurisdiction as the
relevant existing Lending Office.
32.5 NO INCREASED COSTS
If a Lender assigns its rights or transfers any or all of its rights and
obligations under this Agreement or changes any of its Lending Offices,
neither the Borrowers nor Xxxxxx'x Brewing Group shall be required to pay,
reimburse or indemnify any Lender against, any net increase in payments or
Tax under Clause 15 or 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 a Lending Office.
33. NOTICES
33.1 NOTICES
All notices, requests, demands, consents, approvals, agreements or other
communications to or by a party to this Agreement shall:
(i) 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;
(ii) be signed by an Authorised Officer of the sender; and
(iii) be deemed to be duly given or made:
(iv) (in the case of delivery in person or by facsimile
transmission) when received at such address;
(v) (in the case of delivery by post) when left at that address or
(as the case may be) ten days after being deposited in the
post postage prepaid in an envelope addressed to the recipient
at such address; or
(vi) (in the case of telex) on receipt by the sender of the
answerback code of the recipient at the end of transmission,
but if such delivery or receipt is not on a day on which business is
generally carried on in the place to which such communication is sent
or is later than 4.00 p.m. (local time), it shall be deemed to have
been duly given or made at the commencement of business on the next
such day in that place.
All Drawdown Notices in respect of a Facility shall be delivered to the
relevant Lender's Lending Office for that Facility. Copies of such
Drawdown
PAGE 42
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
--------------------------------------------------------------------------------
Notices and all other correspondence to, and other communications with,
any Lender shall be delivered to:
Bank of America National Trust and Savings Association
Melbourne Branch
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Tel: 0000 0000
Fax: 0000 0000
Contact: General Manager, Corporate Banking
33.2 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 33 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
PAGE 43
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
--------------------------------------------------------------------------------
FBG Treasury (UK) PLC
Montrose House
Chertsey Boulevard
Xxxxxxxx Xxxx
Xxxxxxxx
Xxxxxx XX00 0XX, Xxxxxx Xxxxxxx
Telephone: 00000 000000
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 Canadian Treasury Inc.
000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxx Xxxxx
Xxxxxxx Xxxxxxx Xxxxxx X0X 0X0
Telephone: (000) 000 0000
Fax: (000) 000 0000
Contact: Treasurer
FBG Treasury (USA) Inc.
Xxxxx 000
000 Xxxxx Xxxx
Xxxxxxxxxx
Xxxxxxxx XXX 00000
Telephone: 000-0000000
Fax: 000-0000000
Contact: Xxxx Xxxxx
XXX Xxxxxxxx (Xxxxxx) X.X
Xxxxxxxxxxxxxx 0000,
0000XX Amsterdam
Telephone 00 00000000
Fax: 00 000000000
Contact: Jacques Van Xxxx
00. AUTHORISED OFFICERS
Each of the Borrowers and Xxxxxx'x Brewing Group irrevocably authorise
each of the Lenders 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
PAGE 44
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
--------------------------------------------------------------------------------
give notices and communications under or in connection with this
Agreement.
35. GOVERNING LAW AND JURISDICTION
(i) This Agreement is governed by and construed in accordance with
the laws of Victoria.
(ii) The parties to this Agreement irrevocably agree that the
courts of Victoria are to have jurisdiction to settle any
disputes which may arise out of, or in connection with, this
Agreement and that accordingly, any proceeding, suit or action
arising out of, or in connection with, this Agreement
("Proceedings") may be brought in such courts. Nothing
contained in this Clause shall limit Clause 35 of the Trust
Deed or the right of any party to take Proceedings against
another party in any other court of competent jurisdiction,
nor shall the taking of Proceedings in one or more
jurisdictions preclude the taking of Proceedings in any other
jurisdiction, whether concurrently or not, to the extent
permitted by the law of such other jurisdiction.
36. 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.
37. ACKNOWLEDGEMENT BY THE BORROWERS AND XXXXXX'X BREWING GROUP
Each of the Borrowers and Xxxxxx'x Brewing Group confirms that:
(i) 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 a Lender or any Related Company of a Lender
(including, without limitation, any advice, warranty,
representation or undertaking but excluding the
representations in Clause 38); and
(ii) no Lender nor any Related Company of a Lender is obliged to do
anything (including, without limitation, disclose anything or
give advice), except as expressly set out in the Relevant
Documents.
PAGE 45
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
--------------------------------------------------------------------------------
38. UK LENDER REPRESENTATIONS
38.1 ELIGIBLE BANK WARRANTY
The First 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.
38.2 SECTION 349 WARRANTY
The First Lender represents and warrants, as at the date of this Agreement
for the benefit of Treasury UK that it is a Qualifying Lender.
38.3 CEASING TO BE A QUALIFYING LENDER
(i) The First Lender shall promptly give notice to Treasury UK if
it ceases to be a Qualifying Lender.
(ii) If the First Lender is not or ceases, otherwise than by reason
of any change in English law 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
First Lender under Clause 15.5 any amount in excess of the
amount it would have been obliged to pay if the First Lender
were a Qualifying Lender.
39. ATTORNEYS
Each attorney executing this Agreement states that he has no notice of the
revocation of his power of attorney.
PAGE 46
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
--------------------------------------------------------------------------------
SCHEDULE 1
LENDING OFFICES
LENDING OFFICE FOR STERLING PAYMENTS AND THE XXXXXXXX XXXX AND
STERLING CASH ADVANCE FACILITIES
BANK OF AMERICA NATIONAL ASSOCIATION (FORMERLY KNOWN AS BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION)
Address: 00 Xxxxxxxx Xxxx
Xxxxxxx
Xxxx
XX0 0XX
Telex: 888412
Fax: 0000 000 0000
Telephone: 0000 000 0000
Attention: Xxxx Boom
LENDING OFFICE FOR AUSTRALIAN DOLLAR PAYMENTS AND THE A$ XXXX AND
A$ CASH ADVANCE FACILITIES
BANK OF AMERICA NATIONAL ASSOCIATION (FORMERLY KNOWN AS BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION)
Address: Xxxxx 00
00-00 Xxxxxx Xxxxx
XXXXXX XXX 0000
Telex: N/A
Fax: (00) 0000 0000
Telephone: (00) 0000 0000
Attention: Annece Salecb
OR
BA AUSTRALIA LIMITED
Address: Xxxxx 000
00-00 Xxxxxx Xxxxx
XXXXXX XXX 0000
Telex: N/A
PAGE 47
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
--------------------------------------------------------------------------------
Fax: (00) 0000 0000
Telephone: (00) 0000 0000
Attention: Annece Salecb
LENDING OFFICE FOR US$ AND CDN$ PAYMENTS AND THE CDN$ CASH ADVANCE AND US$ CASH
ADVANCE FACILITIES
BANK OF AMERICA CANADA
Address: 000 Xxxxx Xxxxxx West
18th Floor
TORONTO ONTARIO M5H IB6
Telex: N/A
Fax: (000) 000 0000
Telephone: (000) 000 0000/5464
Attention: Xxxxxx Sales xx Xxxxxxx/Xxxxx XxXxxxxx
LENDING OFFICE FOR EURO PAYMENTS AND THE EURO CASH ADVANCE
FACILITY
BANK OF AMERICA NATIONAL ASSOCIATION (FORMERLY KNOWN AS BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION), AMSTERDAM BRANCH
Address: Xxxxxxxxxxx 000-000
0000XX Xxxxxxxxx
Xxxxxxxxxxx
Fax: 00 00 000 0000
Telephone: 00 00 000 0000
Attention: Lies Bakewel or Jan Loohuis
PAGE 48
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
--------------------------------------------------------------------------------
SCHEDULE 2
ADDITIONAL DOMESTIC STERLING COSTS
(a) The costs of the compliance with the existing requirements referred to in
Clause 7.6(a) will be calculated on the first day of each relevant Funding
Period or other period by the First Lender in accordance with the
following formulae:
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 First Lender's eligible liabilities (in excess of
any stated minimum) which the Bank of England requires the First 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 First Lender to
leading banks in the London interbank market at or about 11.00 a.m. on
that day for the relevant Funding Period;
S is the percentage of the First Lender's eligible liabilities which the
Bank of England requires the First Lender to maintain 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 First 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 or under the Bank of England
Act; 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) (i) 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.
(ii) A negative result obtained by subtracting Z from Y shall be
counted as zero.
PAGE 49
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
--------------------------------------------------------------------------------
(d) Each rate calculated in accordance with the formula is, if necessary,
rounded upward to four decimal places.
(e) If the First Lender in its reasonable opinion determines
that a change in circumstances (including the imposition of
alternative or additional requirements) has rendered, or
will render, the formula inappropriate, or inapplicable,
the First 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 First Lender shall, in the absence of
proven error, be binding on all the parties.
EXECUTED in Melbourne.
PAGE 50
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
--------------------------------------------------------------------------------
ANNEXURE A
STERLING DRAWDOWN NOTICE
To: Bank of America National Trust and
Savings Association (London Branch)
MULTIPLE OPTION FACILITY - DRAWDOWN NOTICE
We refer to the Facility Agreement dated 1996 (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 ............19 ....
(the "Drawdown Date");
[SUCH DATE IS TO BE A BUSINESS DAY]
(2) the aggregate principal amount to be drawn is(pOuNd)[#];
SUCH AMOUNT TO COMPLY WITH CLAUSE 2.1]
(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 First Lender to do as follows on ...... 19....:
(a) in accordance with the Facility Agreement, accept the Bills
for the accommodation of Treasury UK.
PAGE 51
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
--------------------------------------------------------------------------------
(b) [debit to the account of Treasury UK styled
.......................... ........................
at the ..................................... Branch
of the First Lender [deduct from the proceeds
referred to in (4) above] the amount of the First
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 First Lender under the
Facility Agreement but unpaid.
(c) [complete the name of the payee on the Bills, purchase the
Bills or at the First 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
First 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 First 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/ENDORSER(S)'
NO. OF XXXX EXECUTION DATE AMOUNT NAME NAME/NAME(S)
------------ ---------- -------- --------- -------- ------------------
For and on behalf of
FBG TREASURY (UK) PLC
By:
[Authorised Officer]
Dated: , 1996.
PAGE 52
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
--------------------------------------------------------------------------------
ANNEXURE B
A$ DRAWDOWN NOTICE
-------------------------------------------------------------------
To: [Bank of America National Trust and
Savings Association (Sydney Branch)]/[BA Australia Limited]
MULTIPLE OPTION FACILITY - DRAWDOWN NOTICE
We refer to the Facility Agreement dated 1996 (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
...................19 .... (the "Drawdown Date");
[SUCH DATE IS TO BE A BUSINESS DAY]
(2) the aggregate principal amount to be drawn is A$[ ];
[SUCH AMOUNT TO COMPLY WITH CLAUSE 2.1]
(3) we request the following Segments:
FACILITY PRINCIPAL FUNDING
AMOUNT PERIOD
* ** ***
* A$ Xxxx or A$ Cash Advance Facility
** Principal Amount must comply with Clause 8.1 or 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 (AUST.) LIMITED ("Treasury Aust.") on the Lender.
We irrevocably request the [First Lender]/[Second Lender]
to do as follows on ........ 19....:
(a) in accordance with the Facility Agreement, accept the Bills
for the accommodation of Treasury Aust.
PAGE 53
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
--------------------------------------------------------------------------------
(b) [debit to the account of Treasury Aust. styled
.......................... ........................at the
..................................... Branch of the [First
Lender]/[Second Lender] [deduct from the proceeds referred to
in (4) above] the amount of the [First Lender's]/[Second
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
Aust. to the [First Lender]/[Second Lender] under the Facility
Agreement but unpaid.
(c) [complete the name of the payee on the Bills, purchase the
Bills or at the [First Lender's]/[Second 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 [First
Lender]/[Second 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$........... which moneys are to be credited to
the account of Treasury Aust. styled
.......................... at the
................................. Branch of the [First
Lender]/[Second Lender].]
(6) We acknowledge that pursuant to Clause 3.4 of the Trust Deed, the
representations and warranties in Clause 3 of the Trust Deed are
repeated on the date of this notice with respect to the facts and
circumstances then existing.
Expressions defined in the Facility Agreement have the same meaning when used in
this Drawdown Notice.
SCHEDULE 1
------------ ---------- -------- --------- -------- ------------------
DRAWER'S DATE MATURITY FACE DRAWER'S ACCEPTOR'S/ENDORSER(S)'
NO. OF XXXX EXECUTION DATE AMOUNT NAME NAME/NAME(S)
------------ ---------- -------- --------- -------- ------------------
For and on behalf of
FBG TREASURY (AUST.) LIMITED
By:
[Authorised Officer]
Dated: , 1996.
PAGE 54
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
--------------------------------------------------------------------------------
ANNEXURE C
CDN$ DRAWDOWN NOTICE
To: Bank of America Canada
MULTIPLE OPTION FACILITY - DRAWDOWN NOTICE
We refer to the Facility Agreement dated 1996 (the "Facility Agreement").
Under Clause 9.1/14.1 of the Facility Agreement:
(1) we give you irrevocable notice that we wish to draw on 1996 (the
"Drawdown Date");
[SUCH DATE IS TO BE A BUSINESS DAY]
(2) the aggregate principal amount to be drawn is Cdn$[ ];
[SUCH AMOUNT TO COMPLY WITH CLAUSE 2.1]
(3) we request the following Segments:
FACILITY PRINCIPAL FUNDING
AMOUNT PERIOD
* ** ***
* Cdn$ Cash Advance Facility or Banker's Acceptance Facility.
** Principal Amount must comply with Clause 9.1 or 13.1.
** Funding Periods to comply with Clause 4.
(4) we request that the proceeds be remitted to account number ..........
at .........;
[(5) we [enclose]/[irrevocably request you to prepare, complete, issue and
deliver on our behalf]/[enclose and irrevocably request you to complete
(including inserting the issue and maturity dates) and issue on our
behalf] Banker's Acceptances (details of which appear in Schedule 1
below) drawn by FBG CANADIAN TREASURY INC ("Treasury Canada") on the
Third Lender.
We irrevocably request the Third Lender to do as follows on
...................... 19.......
(f) in accordance with the Facility Agreement, accept the Banker's
Acceptances for the account of Treasury Canada;
(g) [debit to the account of Treasury Canada styled
......................................... at the
...................................... Branch of the Third
Lender]/[deduct from the proceeds referred to in (4) above]
the amount of the Third Lender's acceptance [/endorsements]
and other fees, any stamp or other documentary or transaction
Tax
PAGE 55
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
--------------------------------------------------------------------------------
payable on or in respect of the Banker's Acceptances or any
other amount owing by Treasury Canada to the Third Lender
under the Facility Agreement but unpaid.]
(h) [complete the name of the payee on the Banker's Acceptances,
purchase the Banker's Acceptances or at the Third 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 Canada styled .........................
at the ................................ Branch of the Third
Letter; and]
[OR]
(i) [deliver the accepted Bankers Acceptances to
................................... (a specimen of whose
signature appears below).]
[OR]
(j) [deliver the accepted Banker's Acceptances to
..................................... (a specimen of whose
signature appears (below).]
(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/ENDORSER(S)'
NO. OF XXXX EXECUTION DATE AMOUNT NAME NAME/NAME(S)
------------ ---------- -------- --------- -------- ------------------
For and on behalf of FBG CANADIAN TREASURY INC.
By:
[Authorised Officer]
Dated: , 1996.
PAGE 56
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
--------------------------------------------------------------------------------
ANNEXURE D
US$ DRAWDOWN NOTICE
To: Bank of America Canada
MULTIPLE OPTION FACILITY - DRAWDOWN NOTICE
We refer to the Facility Agreement dated 1996 (the "Facility Agreement").
Under Clause 10.1 of the Facility Agreement:
(1) we give you irrevocable notice that we wish to draw on 1996 (the
"Drawdown Date");
[SUCH DATE IS TO BE A BUSINESS DAY]
(2) the aggregate principal amount to be drawn is US$[ ];
[SUCH AMOUNT TO COMPLY WITH CLAUSE 2.1]
(3) we request the following Segments:
FACILITY FUNDING
PERIOD
* **
* Principal Amount must comply with Clause 10.1.
** Funding Periods to comply with Clause 4.
(4) we request that the proceeds be remitted to account number
at ;
(5) we acknowledge that pursuant to Clause 3.4 of the Trust Deed the
representations and warranties in Clause 3 of the Trust Deed are repeated
on the date of this notice with respect to the facts and circumstances
then existing.
Expressions defined in the Facility Agreement have the same meaning when used in
this Drawdown Notice.
For and on behalf of
[FBG CANADIAN TREASURY INC./FBG TREASURY (USA) INC.]
By:
[Authorised Officer]
Dated:
PAGE 57
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
--------------------------------------------------------------------------------
ANNEXURE E
EURO DRAWDOWN NOTICE
To: Bank of America [ ]
MULTIPLE OPTION FACILITY - DRAWDOWN NOTICE
We refer to the Facility Agreement dated 1996 (the "Facility Agreement").
Under Clause 11.1 of the Facility Agreement:
(1) we give you irrevocable notice that we wish to draw on 19 (the
"Drawdown Date");
[SUCH DATE IS TO BE A BUSINESS DAY]
(2) the aggregate principal amount to be drawn is EUR$[ ];
[SUCH AMOUNT TO COMPLY WITH CLAUSE 2.1]
(3) we request the following Segments:
FACILITY FUNDING
PERIOD
* **
* Principal Amount must comply with Clause 11.1.
** 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.]
By:
[Authorised Officer]
Dated:
PAGE 58
XXXXXX XXXXXXXX
FACILITY AGREEMENT & HEDDERWICKS
--------------------------------------------------------------------------------
ANNEXURE F
VERIFICATION CERTIFICATE
To: Bank of America National Trust and
Savings Association, BA Australia Limited and Bank of
America Canada and [Bank of America?]
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 Multiple Option Facility Agreement (the "Facility Agreement")
dated * 1996 between you as Lenders, the Company, and [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:
(k) the [Memorandum and Articles of Association] [constituent
documents] of the Company (marked "A");
(l) 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
(m) 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, except in the case of Xxxxxx Xxxxxx and Xxx
Xxxxxxx, are the persons who have been authorised to sign the Facility
Agreement.
BY:
DIRECTOR/SECRETARY
DATED:
PAGE 59
