Exhibit 99(b)(1)
BRIDGING FACILITY AGREEMENT Xxxxxx Xxxxxxxx
& Hedderwicks
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FBG Treasury (USA) Inc.
(Borrower)
and
Xxxxxx'x Brewing Group Limited
and
National Australia Bank Limited
Bank of America National Association
Westpac Banking Corporation
Commonwealth Bank of Australia
Australia and New Zealand Banking Group Limited
UBS AG, Stamford Branch
(Participants)
and
National Australia Bank Limited
(Agent)
Xxxxxx Xxxxxxxx & Hedderwicks
Stock Exchange Centre
000 Xxxxxxx Xxxxxx
Xxxxxxxxx 0000 Xxxxxxxxx
Tel 00 0 0000 0000
Fax 00 0 0000 0000
mxcm M0110738559v15 958711 OurRef: MXC:SPL
(C)Xxxxxx Xxxxxxxx & Hedderwicks 2000
Xxxxxx Xxxxxxxx
BRIDGING FACILITY AGREEMENT & Hedderwicks
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TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 5
1.3 Trust Deed 5
1.4 Repayment and prepayment 5
1.5 Principal 6
2. COMMITMENTS 6
2.1 Commitments 6
2.2 Allocation among Participants 6
2.3 Obligations several 6
3. CANCELLATION OF COMMITMENTS 6
3.1 During Availability Period 6
3.2 Automatic cancellation 7
3.3 Allocation among Participants 7
3.4 At end of Availability Period 7
3.5 Reduction on repayment or prepayment 7
4. PURPOSE 7
5. CONDITIONS PRECEDENT 7
5.1 Conditions precedent to drawing 7
5.2 Conditions precedent to each Segment 7
6. DRAWDOWN NOTICES 8
6.1 When notice to be given 8
6.2 Notification to Participants 8
7. PRINCIPAL AMOUNT OF SEGMENTS 8
7.1 Principal amount of Segments 8
7.2 Number of Segments 8
7.3 Splitting and aggregation 9
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8. SELECTION NOTICE 9
8.1 When Notice to be given 9
8.2 Failure to give Selection Notice 9
8.3 Notification to Participants 9
9. SELECTION OF FUNDING PERIODS 9
10. REPAYMENT 10
10.1 Repayment 10
10.2 Early mandatory repayments 10
11. PREPAYMENTS 10
11.1 Voluntary prepayments 10
11.2 Special Prepayments 11
11.3 Interest 11
11.4 Limitation on prepayments 11
11.5 Apportionment 11
12. US$ CASH ADVANCE FACILITY 11
12.1 Advance of Segment 11
12.2 Interest rate 11
12.3 Payment of interest 11
12.4 Netting off 11
13. PAYMENTS AND TAXATION 12
13.1 Time and place 12
13.2 No deduction 12
13.3 Payment to be made on Business Day 12
13.4 Distribution by Agent 12
13.5 Appropriation where insufficient money available 12
13.6 Unanticipated default 12
13.7 Rounding 13
13.8 Blocked Payments 13
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14. TAXATION 14
14.1 Additional payments 14
14.2 Survival of obligations 14
14.3 Tax credits 14
15. CHANGE IN LAW 15
15.1 Illegality 15
15.2 Increased costs 15
15.3 Voluntary prepayment on Change in Law 16
15.4 Minimisation 16
16. REPRESENTATIONS AND WARRANTIES 16
16.1 Representations and warranties 16
16.2 Participant representation and warranties 16
16.3 Reliance on representations and warranties 17
17. UNDERTAKINGS 17
18. Events of Default and Trust Deed 17
18.1 Events of Default 17
18.2 Amendment or Waiver 18
19. INTEREST ON OVERDUE AMOUNTS 18
19.1 Default interest 18
19.2 Rate 18
19.3 Basis of calculation 19
19.4 Capitalisation 19
20. FEES 19
20.1 Establishment Fee 19
20.2 Facility Fee 19
20.3 Review 19
20.4 Agency Fees 20
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21. INDEMNITIES 20
22. CURRENCY INDEMNITY 21
22.1 General 21
22.2 Liquidation 21
23. CONTROL ACCOUNTS 21
24. EXPENSES 22
25. STAMP DUTIES 22
26. SET-OFF 22
27. WAIVERS, REMEDIES CUMULATIVE 23
28. SEVERABILITY OF PROVISIONS 23
29. MORATORIUM LEGISLATION 23
30. SURVIVAL OF REPRESENTATIONS AND INDEMNITIES 23
30.1 Survival of representations 23
30.2 Continuing indemnities 23
31. ASSIGNMENTS 24
31.1 Assignment by the Borrower/Xxxxxx'x Brewing Group 24
31.2 Assignment by Participants 24
31.3 Substitution certificates 24
31.4 Assignment by Reference Bank 25
31.5 Disclosure 25
31.6 Change of Lending Office 25
31.7 No increased costs 25
31.8 Trust Deed 25
31.9 Pro rata assignment 25
32. RELATIONSHIP OF PARTICIPANTS TO AGENT 26
32.1 Authority 26
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32.2 Instructions; extent of discretion 26
32.3 No obligation to investigate authority 27
32.4 Agent not a fiduciary 27
32.5 Exoneration 27
32.6 Delegation 28
32.7 Reliance on documents and experts 28
32.8 Notice of transfer 28
32.9 Notice of default 28
32.10 Agent as Participant and banker 29
32.11 Indemnity to Agent 29
32.12 Independent investigation of credit 29
32.13 No monitoring 29
32.14 Information 29
32.15 Replacement of Agent 30
32.16 Amendments and waivers 31
33. PROPORTIONATE SHARING 31
33.1 Sharing 31
33.2 Refusal to join in action 32
34. NOTICES 32
35. AUTHORISED OFFICERs 33
36. GOVERNING LAW 33
37. COUNTERPARTS 33
38. CONFIDENTIALITY 33
39. ACKNOWLEDGEMENT BY BORROWER AND XXXXXX'X BREWING GROUP 34
40. GOODS AND SERVICES TAX 34
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Schedule 1 36
Participants 36
Schedule 2 38
Conditions precedent 38
Annexure A 47
Drawdown Notice 47
Annexure B 49
Selection Notice 49
Annexure C 50
Verification certificate 50
Annexure D 52
Substitution certificate 52
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Date
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Parties
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1. FBG Treasury (USA) Inc. of Xxxxx 000, 000 Xxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxx XXX (TREASURY USA), (THE BORROWER).
2. Xxxxxx'x Brewing Group Limited (ABN 49 000 000 000) of 00
Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxx, 0000 Xxxxxxxx Xxxxxxxxx
(XXXXXX'X BREWING GROUP).
3. Each Bank or Financial Institution named in Schedule 1 (each a
PARTICIPANT).
4. National Australia Bank Limited (ABN 12 004 044 937) of Xxxxx 0,
000 Xxxxxxx Xxxxxx, Xxxxxxxxx 0000 Xxxxxxxx Xxxxxxxxx as Agent
for the Participants (in this capacity, the AGENT).
Recital
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The Borrower and Xxxxxx'x Brewing Group have requested the
Participants to provide them with a facility under which
financial accommodation of up to a maximum amount of
US$810,000,000 may be made available to the Borrower.
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It is agreed as follows.
1. Definitions and interpretation
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1.1 Definitions
The following definitions apply unless the context requires otherwise.
ACCOMMODATION DATE means a Drawdown Date or a Selection Date.
ADDITIONAL EQUITY means any proceeds of the issue of shares of Xxxxxx'x
Brewing Group received in excess of the Underwritten Equity Issue.
A$ or AUSTRALIAN DOLLARS means the lawful currency of Australia.
AUTHORISED TRANSFEREE means a Related Company of a Participant which
will provide the Facility through lending offices located in the same
jurisdiction as the Lending Office of the Participant.
AVAILABILITY PERIOD means the period expiring on the last day of a 364
day period commencing on the date of this Agreement.
BERINGER means Xxxxxxxx Wine Estates Holdings, Inc.
BUSINESS DAY means a weekday on which:
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(a) for the purpose of determining LIBOR, the relevant financial markets
are open in London;
(b) in the case of determining the length of a Funding Period for a
Segment or where a payment is to be made to or for the account of a
Participant in US$, banks are open in New York City and San
Francisco;
(c) for any other purpose, banks are open for business in Melbourne and
Sydney.
CHANGE IN LAW means a change in, the making of or a change in
interpretation or application of a law, a treaty or an official directive,
guideline or request with which responsible financial institutions in the
relevant jurisdiction would comply, including in relation to:
(a) reserve, liquidity, capital adequacy, special deposits or similar
requirements; or
(b) Tax (other than an Excluded Tax).
It does not include anything that was announced, officially notified to
financiers generally in the relevant jurisdiction or published before the
date of this Agreement (excluding the `New Capital Adequacy Framework'
published by the Basle Committee on Banking Supervision).
COMMITMENT means, in relation to a Participant, the US$ amount against its
name in Column 2 of Schedule 1.
DRAWDOWN DATE means the date on which any accommodation under this
Agreement is or is to be drawn utilising any Undrawn Commitments.
DRAWDOWN NOTICE means a notice under Clause 6.
EQUITY ISSUE means the aggregate of the Underwritten Equity Issue and
Additional Equity.
EXCHANGEABLE BOND ISSUE means the bonds issued or to be issued by a
subsidiary of Xxxxxx'x Brewing Group of an aggregate face amount of
US$400,000,000 upon the security of a subordinated guarantee from Xxxxxx'x
Brewing Group.
EXCLUDED TAX means:
(a) a Tax imposed by a jurisdiction on an Indemnified Party or its
business as a consequence of the Indemnified Party being a resident
of or organised or doing business in that jurisdiction but not any
Tax:
(i) that is calculated on or by reference to the gross amount of a
payment derived under this Agreement or any Transaction
Document or another document referred to in this Agreement or
any Transaction Document (without the allowance of a
deduction); or
(ii) that is imposed as a result of the Indemnified Party being
considered a resident of or organised or doing business in
that jurisdiction solely as a result of it being a party to
this Agreement or any Transaction Document or a transaction
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contemplated by this Agreement or any Transaction
Document; and
(b) any other Tax to the extent imposed, or imposed at a higher rate, by
a Government Agency upon or after any failure by an Indemnified
Party to file, furnish, deliver or otherwise provide any forms,
documents or other information to the Governmental Agency or the
applicable Borrower or Guarantor within the prescribed time period
and in due form if, had there been no such failure, such Tax would
not have been imposed or would have been imposed at a lower rate.
FACILITY means the facility provided under Clause 12.
FUNDING PERIOD means in relation to a Segment a period for the fixing of
interest rates for the Segment. The period commences on the Drawdown Date
of the Segment or the last day of the preceding Funding Period of the
Segment (as appropriate) and has a duration selected under Clause 9.
GST has the meaning given in the A New Tax System (Goods and Services Tax)
Xxx 0000.
INDEMNIFIED PARTY means the Agent or a Participant.
LENDING OFFICE in relation to a Participant means the office specified
with respect to it in Column 3 of Schedule 1 as changed from time to time.
LIBOR in relation to a Funding Period for a Segment means:
(a) the rate displayed at 11:00am (London time) two Business Days before
that Funding Period on the Reuters screen LIBOR 01 (or any successor
screen) page for a term equivalent to that Funding Period for the
value date that is the first day of that Funding Period; or
(b) if:
(i) for any reason there are no rates displayed for a term
equivalent to that Funding Period; or
(ii) the basis on which those rates are displayed is changed and in
the opinion of the Agent (acting reasonably) those rates cease
to reflect the Participants' cost of funding to the same
extent as at the date of this Agreement,
then LIBOR will be the rate determined by the Agent to be the
arithmetic mean of the rates quoted to it by three Reference Banks
at or about 11.00am (London time) two Business Days before that
Funding Period for the making of deposits in US dollars with the
Agent for a term comparable to that Funding Period.
Each arithmetic mean will be rounded up, if necessary, to a maximum of
four decimal places.
LIQUIDITY means, at any time, the sum of the Long Term Unused Lines plus
the aggregate amount of Cash of the Group at that time less Short Term
Borrowings at that time. For the purposes of this definition:
(a) CASH means cash on hand, short term deposits and other cash
equivalents excluding any such amounts which are attributable to a
Group member and which cannot for any reason (including exchange
controls) beyond the control of a Group member directly or
indirectly be distributed by way of dividend, loan or other means to
the Borrower.
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(b) LONG TERM UNUSED LINE means the unused amount of any commitment or
limit under any Facility (as defined in the Trust Deed) (other than
Transactional Facilities) provided to any member of the Group with a
scheduled maturity after the Repayment Date.
(c) SHORT TERM BORROWINGS means the aggregate amount owing under
Facilities (as defined in the Trust Deed) (other than Transactional
Facilities) provided to the Group with a scheduled maturity on or
before the Repayment Date (excluding the Principal Outstanding).
MAJORITY PARTICIPANTS means Participants whose Commitments are more than
two thirds of the aggregate of the Commitments (or, if the total of the
Commitments has been reduced to nil, means the Participants to which more
than two thirds of the Principal Outstanding is owing).
MARGIN means, subject to Clause 20.3, 0.35% per annum provided that, if
the proceeds (less any associated costs, expenses and fees) from the
Exchangeable Bond Issue by Xxxxxx'x Brewing Group have not been received
by 31 December 2000, the Margin will be 0.40% per annum from 1 January
2001 until such time as such proceeds from the Exchangeable Bond Issue
have been received, from which date the Margin will revert to 0.35% per
annum.
PRINCIPAL OUTSTANDING means the aggregate principal amount of all
outstanding Segments.
REFERENCE BANKS means Bank of America, Citibank NA and Chase Manhattan
Bank or another bank or financial institution appointed as a Reference
Bank in addition to or in place of any of them by the Agent by agreement
with Xxxxxx'x Brewing Group after consulting the Participants.
REGULATION U means Regulation U of the Board of Governors of the US
Federal Reserve System, in effect from time to time.
REPAYMENT DATE means the last day of the Availability Period.
SAME DAY FUNDS means:
(a) in the case of Australian dollars, immediately available funds; or
(b) in the case of US dollars, US dollar funds settled through the New
York Clearing House Interbank Payments System (or another manner of
payment in US dollars specified by the Agent to the applicable
Borrower and the Participants as being customary at the time for the
settlement of international transactions of the type contemplated by
this Agreement).
SEGMENT means each portion of the accommodation made available under this
Agreement that has the same Funding Period and Selection Date.
SELECTION DATE means the last day of a Funding Period or a day on which
any switch is or is to be made under this Agreement.
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SELECTION NOTICE means a notice under Clause 8.
SHARE of a Participant, in respect of any Segment, means the proportion of
that Participant's participation in that Segment to the amount of the
Segment (such proportion to be determined under Clause 2.2.
TRUST DEED means the deed entitled `FBG GROUP FINANCING TRUST DEED' (as
amended) between the Borrower, among others, and the Trustee dated 21
February 1993.
TRUSTEE means AXA Trustees Limited (ACN 004 029 841) or any other person
appointed as trustee under the Trust Deed.
UNDERWRITTEN EQUITY ISSUE means an A$500,000,000 equity issue in the
ordinary shares of Xxxxxx'x Brewing Group underwritten by UBS Warburg or
any of its affiliates under an underwriting agreement dated on or about 29
August 2000.
UNDRAWN COMMITMENT means a Participant's Commitment less the aggregate of
its Share of all outstanding Segments.
US$ or US DOLLARS means the lawful currency of United States of America.
1.2 INTERPRETATION
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 these
Clauses to `Deed' and `the Trustee' are replaced with `Agreement' and `a
Participant' respectively.
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 Borrower by the Participants under this Agreement is and will 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) Subject to Clause 32.16(c), each Participant 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
A reference to REPAYMENT or PREPAYMENT of all or part of a Segment is to
payment to the Agent in US dollars.
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1.5 Principal
A reference to PRINCIPAL or PRINCIPAL AMOUNT, in relation to a Segment is
to the principal amount of that Segment.
2. Commitments
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2.1 Commitments
Subject to this Agreement, each Participant agrees with the Borrower to
make available during the Availability Period its participation in each
Segment of each Facility so that the aggregate of that Participant's
participation in all outstanding Segments will not at any time exceed that
Participant's Commitment.
2.2 ALLOCATION AMONG PARTICIPANTS
Each Participant must participate in each Segment ratably according to its
Commitment.
2.3 OBLIGATIONS SEVERAL
The obligations and rights of each Participant under this Agreement are
several and:
(a) failure of a Participant to carry out its obligations does not
relieve any other Participant of its obligations;
(b) no Participant is responsible for the obligations of any other
Participant or the Agent; and
(c) subject to this Agreement and the Trust Deed, each Participant may
separately enforce its rights under this Agreement.
Each Participant agrees with the other Participants to comply with its
obligations under this Agreement.
3. CANCELLATION OF COMMITMENTS
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3.1 DURING AVAILABILITY PERIOD
(a) On giving not less than two Business Days' prior irrevocable notice
to the Agent, Xxxxxx'x Brewing Group may at any time during the
Availability Period cancel all or part of the Undrawn Commitments.
Unless the Agent otherwise agrees, a partial cancellation must be in
a minimum of US$10,000,000 and in an integral multiple of
US$5,000,000.
(b) The notice given under paragraph (a) must state that Xxxxxx'x
Brewing Group and its Subsidiaries have sufficient funds to complete
the acquisition of Beringer and set out the sources of those funds.
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3.2 AUTOMATIC CANCELLATION
The Undrawn Commitments will automatically reduce by an amount equal to
the amount of the proceeds (less any associated costs, expenses and fees)
of any Additional Equity or Exchangeable Bond Issue.
3.3 ALLOCATION AMONG PARTICIPANTS
Any partial or automatic cancellation will be applied ratably against the
Undrawn Commitment of each Participant. The Agent must promptly notify
each Participant of any notice received under this Clause and the amount
of that Participant's Commitment that is cancelled.
3.4 AT END OF AVAILABILITY PERIOD
At the close of business (Melbourne time) on the last day of the
Availability Period the Undrawn Commitments of the Participants will be
cancelled.
3.5 REDUCTION ON REPAYMENT OR PREPAYMENT
On any repayment (including any mandatory repayment) or any prepayment of
all or part of the Principal Outstanding the Commitments will be reduced
by an amount equal to the principal amount so repaid or prepaid.
4. PURPOSE
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The Borrower undertakes to use the net proceeds of all accommodation
provided under this Agreement for:
(a) funding the acquisition by Xxxxxx'x Brewing Group (or any wholly
owned subsidiary of Xxxxxx'x Brewing Group) of Beringer and fees and
costs associated with such acquisition;
(b) refinancing any existing Financial Indebtedness of Beringer or
Xxxxxxxx'x subsidiaries and fees and costs associated with such
refinancing; and
(c) for other purposes related directly or indirectly to the acquisition
of Beringer.
5. CONDITIONS PRECEDENT
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5.1 CONDITIONS PRECEDENT TO DRAWING
The obligations of each Participant under this Agreement are subject to
the condition precedent that the Agent receives all of the items described
in Schedule 2 in each case in form and substance satisfactory to the Agent
acting on the instructions of all Participants.
5.2 CONDITIONS PRECEDENT TO EACH SEGMENT
The obligations of a Participant to make available each Segment is subject
to the following conditions precedent:
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(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, each of the conditions precedent set out in
paragraphs (i) to (vi) (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 a `Participant' as applicable);
(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 a `Participant' as applicable); and
(c) (NO DEFAULT) that no Event of Default or Potential Event of Default
would result from the provision of the financial accommodation.
6. DRAWDOWN NOTICES
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6.1 WHEN NOTICE TO BE GIVEN
Whenever the Borrower wishes to make a drawing utilising any of the
Undrawn Commitments it must give to the Agent an irrevocable Drawdown
Notice substantially in the form of Annexure A, to be received by the
Agent not later than 11.00am (Melbourne time) three Business Days before
the proposed Drawdown Date (which must be a Business Day).
6.2 NOTIFICATION TO PARTICIPANTS
The Agent must give prompt notice to each Participant of the contents of
each Drawdown Notice and the amount of each Participant's Share of each
Segment requested.
7. PRINCIPAL AMOUNT OF SEGMENTS
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7.1 PRINCIPAL AMOUNT OF SEGMENTS
The Borrower must ensure that the principal amount of each Segment (except
with the prior approval of Agent) is a minimum of US$10,000,000 and an
integral multiple of US$1,000,000, or the aggregate of the Undrawn
Commitments under that Facility.
7.2 NUMBER OF SEGMENTS
The Borrower must ensure that there are no more than 6 Segments which have
been provided to it outstanding at any one time.
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7.3 SPLITTING AND AGGREGATION
Subject to Clauses 7.1 and 7.2, the Borrower may on any Selection Date
split or aggregate Segments.
8. SELECTION NOTICE
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8.1 WHEN NOTICE TO BE GIVEN
Not later than 11.00am (Melbourne time) three Business Days before the
last day of each Funding Period, the Borrower may give to the Agent an
irrevocable Selection Notice substantially in the form of Annexure B.
8.2 FAILURE TO GIVE SELECTION NOTICE
If the Borrower does not give a Selection Notice in accordance with this
Clause in respect of the last day of the Funding Period of any Segment,
the Borrower will be deemed to have served a Selection Notice electing to
continue the Segment with the same Funding Period, and making without
qualification the representations and warranties referenced in Annexure B.
8.3 NOTIFICATION TO PARTICIPANTS
The Agent must give prompt notice to each Participant of the contents of
each Selection Notice and the amount of each Participant's Share of each
Segment to be continued.
9. SELECTION OF FUNDING PERIODS
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(a) Subject to the subsequent provisions of this Clause, Funding Periods
selected by the Borrower will be of one, two, three, or six months
or, if requested by any party, such other period as the Agent may
agree with Xxxxxx'x Brewing Group.
(b) If a Funding Period commences on a date in a month for which there
is no corresponding date in the month in which it is to end, it will
end on the last Business Day in such latter month.
(c) If a Funding Period would otherwise end on a day which is not a
Business Day, that Funding Period will be extended to the next
Business Day in the same calendar month or, if none, the preceding
Business Day.
(d) No Funding Period may extend beyond the Repayment Date.
(e) If the Borrower fails to select Funding Periods complying with this
Clause the Agent may vary any Selection Notice to ensure compliance.
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10. REPAYMENT
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10.1 REPAYMENT
The Borrower must repay the Principal Outstanding of each Segment on
the Repayment Date together with all accrued interest, fees and other
amounts owing by it under this Agreement.
10.2 EARLY MANDATORY REPAYMENTS
(a) The Borrower must within 5 Business Days of receipt apply (or ensure
the application of) the following amounts in permanent reduction of
the Principal Outstanding:
(i) the proceeds (less any associated costs, expenses and fees) of
any equity issue or Exchangeable Bond Issue by Xxxxxx'x
Brewing Group after the date of the Agreement; and
(ii) the proceeds (less any associated costs, expenses and fees) of
any Subordinated Indebtedness incurred by any member of the
Group after the date of this Agreement,
except such proceeds under the Underwritten Equity Issue which are
received on or before the first Drawdown Date and are applied in
satisfaction of the relevant member of the Group's monetary
obligations in relation to the acquisition of Beringer.
(b) If proceeds of Additional Equity or Exchangeable Bond Issue are
received before the first Drawdown Date, then the aggregate
Commitments will automatically reduce under Clause 3.2 and paragraph
(a) will not apply with respect to those proceeds.
(c) The Borrower must, whenever Liquidity exceeds A$800,000,000,
immediately apply an amount equal to the excess in permanent
reduction of the Principal Outstanding.
(d) Xxxxxx'x Brewing Group must immediately notify the Agent of its
receipt of any proceeds referred to in paragraph (a) or (b).
11. PREPAYMENTS
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11.1 VOLUNTARY PREPAYMENTS
(a) Subject to this Clause, if it gives at least five days' prior notice
to the Agent (who must promptly notify the Participants), the
Borrower may prepay all or part of the Principal Outstanding without
premium or penalty (except amounts payable under Clause 21(d)). That
notice is irrevocable. The Borrower must prepay in accordance with
it.
(b) Unless the Agent agrees otherwise, prepayment of part only of a
Segment may only be made in a principal amount of a minimum of
US$10,000,000 and an integral multiple of US$1,000,000 and so that
the remaining part will comply with Clause 7.1.
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11.2 SPECIAL PREPAYMENTS
The Borrower acknowledges that the Borrower may be required to pay the
Facility in accordance with Clause 5.5 of Trust Deed and that the
Participants have entered into this Agreement and made the Facilities
available in reliance on Clause 5.5 of Trust Deed.
11.3 INTEREST
The Borrower must pay any interest accrued on any amount prepaid under
this Agreement at the time of the prepayment.
11.4 LIMITATION ON PREPAYMENTS
The Borrower may not prepay all or any part of the Principal
Outstanding owing by it except in accordance with this Agreement.
11.5 APPORTIONMENT
Prepayments under Clause 11.1 will be applied ratably in reduction of
the respective participations of all the Participants in the Principal
Outstanding.
12. US$ CASH ADVANCE FACILITY
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12.1 ADVANCE OF SEGMENT
Subject to this Agreement, whenever the Borrower requests a Segment in a
Drawdown Notice, each Participant through its Lending Office must make
available its Share of that Segment to the Agent in immediately available
funds by 11.00am (New York time) on the relevant Drawdown Date to the
account specified in the Drawdown Notice.
12.2 INTEREST RATE
Interest will accrue from day to day on each Segment for each Funding
Period at the rate per annum determined by the Agent to be the aggregate
of the Margin and LIBOR for that Funding Period. That interest will be
computed on the basis of the actual number of days elapsed and a year of
360 days. The Agent must notify the Borrower of the applicable LIBOR rate
promptly after it is ascertained.
12.3 PAYMENT OF INTEREST
The Borrower must pay that accrued interest in US dollars on the last day
of the relevant Funding Period.
12.4 NETTING OFF
If the Borrower requests a new Segment on the last day of the Funding
Period of an old Segment, then only the net amount between:
(a) the funds required to be provided by the relevant Participants for
the account of such Borrower in relation to that new Segment; and
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(b) the funds payable by that Borrower for the account of the relevant
Participants by way of repayment of the old Segment,
need to be paid or made available, as the case may be.
13. PAYMENTS AND TAXATION
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13.1 TIME AND PLACE
Unless this Agreement provides otherwise, the Borrower will make all
payments due from it under this Agreement in Same Day Funds and in respect
of payments in Australian dollars not later than 11.00am (Melbourne time)
and in respect of payments in US dollars not later than 11:00am (New York
time) on the due date to the account specified by the Agent from time to
time.
13.2 NO DEDUCTION
Unless this Agreement provides otherwise, the Borrower will 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 is obliged by law to deduct
Taxes, but without prejudice to Clause 14.1) or otherwise.
13.3 PAYMENT TO BE MADE ON BUSINESS DAY
If any payment is due on a day that is not a Business Day, the due date
will be the next Business Day in the same calendar month or, if none, the
preceding Business Day.
13.4 DISTRIBUTION BY AGENT
Unless this Agreement or any Transaction Document expressly provides
otherwise, the Agent must promptly distribute amounts received under this
Agreement or any Transaction Document for the account of the Participants
among the Participants in accordance with their respective entitlements
and in like funds as they are received by the Agent. To make any
distribution the Agent may buy and sell currencies in accordance with its
normal procedures.
13.5 APPROPRIATION WHERE INSUFFICIENT MONEY AVAILABLE
Amounts received by the Agent will be appropriated between principal,
interest and other amounts as the Agent determines. This appropriation
will override any appropriation made by the Borrower. Without limitation,
the Agent may appropriate amounts first in payment of amounts payable to
it by way of indemnity or reimbursement.
13.6 UNANTICIPATED DEFAULT
(a) (ASSUMPTION AS TO PAYMENT) The Agent may assume that a party (the
PAYER) due to make a payment for the account of another party (the
RECIPIENT) makes that payment when due unless the Payer
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notifies the Agent at least one Business Day before the due date
that the Payer will not be making the payment.
(b) (RELIANCE ON ASSUMPTION) In reliance on that assumption, the Agent
may make available to the Recipient on the due date an amount equal
to the assumed payment.
(c) (RECOUPMENT) If the Payer does not in fact make the assumed payment,
the Recipient must repay the Agent the amount on demand. The Payer
will still remain liable to make the assumed payment, but until the
Recipient does repay the amount, the Payer's liability will be to
the Agent in the Agent's own right.
(d) (INTEREST) If the Payer is the Borrower, any interest on the amount
of the assumed payment accruing before recovery will belong to the
Agent. If the Payer is a Participant, that Participant must pay
interest on the amount of the assumed payment at the rate determined
by the Agent, in line with its usual practice, for advances of
similar duration to financial institutions of the standing of the
Participant.
13.7 ROUNDING
In making any allocation or appropriation under this Agreement the
Agent may round amounts to the nearest dollar.
13.8 BLOCKED PAYMENTS
(a) (NOTIFICATION OF APPLICATION) If the Agent becomes aware that it is
unlawful or, in the opinion of the Agent, impracticable, for any
payment to be made for the account of an Indemnified Party in
accordance with Clause 13.1, the Agent must notify Xxxxxx'x Brewing
Group and that Indemnified Party.
(b) (ALTERNATIVE MANNER OF PAYMENT) Until the notice is revoked the
Borrower must make the payments to the account specified in writing
by the Indemnified Party or to another account or in another manner
agreed between the Borrower and the Indemnified Party.
(c) (REPORTING TO AGENT) That Indemnified Party must keep the Agent
fully informed as to all payments so received by it and as to all
agreements with respect to those payments.
(d) (REVOCATION) If the Agent becomes aware that it is no longer
unlawful or, in the opinion of the Agent, impracticable for any
payment of the type referred to in a notice under paragraph (a), to
be made in accordance with Clause 13.1 the Agent must revoke that
notice in relation to payments of that type.
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14. TAXATION
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14.1 ADDITIONAL PAYMENTS
If the Borrower is obliged to make a deduction in respect of Tax from a
payment under this Agreement:
(a) (PAY DEDUCTION) it must promptly pay the amount deducted to the
appropriate Governmental Agency;
(b) (RECEIPT) it must give the Agent the original receipt (or other
documents reasonably acceptable to the relevant Indemnified Party)
evidencing the payment promptly upon its receipt or preparation of
the relevant documents; and
(c) (GROSS-UP) unless the Tax is an Excluded Tax, it must pay the
relevant Indemnified Party on the due date for the payment an
additional amount so that the Indemnified Party receives a net
amount (after allowance for any further deduction) equal to the
amount it would have received if no deduction had been made. It
indemnifies the relevant Indemnified Party against the Tax and any
amounts recoverable from the relevant Indemnified Party in respect
of the Tax.
The Borrower waives any statutory or other right to recover from any
Indemnified Party any amount paid under this Clause other than by reason
of manifest error or mistake of law or fact.
14.2 SURVIVAL OF OBLIGATIONS
The obligation of the Borrower under this Clause 14 will survive the
repayment of any Principal Outstanding and the termination of this
Agreement or any Transaction Document.
14.3 TAX CREDITS
(a) (REDUCTION) For so long as no Event of Default entitling an
Indemnified Party 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) the Borrower pays any additional amount to, for the account
of, or on behalf of, an Indemnified Party, in respect of
amounts payable under Clause 14.1 (ADDITIONAL TAXES); and
(ii) the Indemnified Party determines in its absolute discretion
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
can be made without prejudice to the retention of the amount of such
credit, relief, remission or repayment, the Indemnified Party will
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promptly pay to the Borrower the amount of any consequent reduction
in its Tax.
(b) (OWN TAX AFFAIRS) Nothing in paragraph (a) will interfere with the
right of an Indemnified Party to arrange its Tax affairs in any
manner it thinks fit. In particular, no Indemnifiable Party will be
under any obligation to claim any credit, relief, remission or
repayment in respect of the amount of any Additional Taxes if such
claim would prejudice any other credit, relief, remission or
repayment available to it or to disclose to the Borrower any
information regarding its tax affairs or tax computations.
15. CHANGE IN LAW
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15.1 ILLEGALITY
(a) (ILLEGALITY) If a Change in Law makes it illegal or impossible for a
Participant to provide a Segment, the Participant may by notice to
the Borrower:
(i) (TERMINATE COMMITMENT) terminate its obligation under this
Agreement to provide that Segment; and
(ii) (PREPAYMENT) direct the Borrower to prepay the Segment,
together with all other amounts payable to the Participant
with respect to the Segment under this Agreement.
(b) (PREPAYMENT) The Borrower must make a prepayment required under
paragraph (a)(ii):
(i) (EXISTING ILLEGALITY) if the illegality or impossibility has
already arisen at the date the notice is given, immediately;
or
(ii) (FUTURE ILLEGALITY) otherwise, on the day which is the latest
date on which the prepayment can be made without the
illegality or impossibility arising.
15.2 INCREASED COSTS
(a) (INCREASED COSTS) If a Change in Law results in an Indemnified Party
suffering any of the following in connection with financial
accommodation provided or to be provided under this Agreement:
(i) (INCREASED COSTS) its costs are increased;
(ii) (REDUCED RECEIPTS) an amount received or receivable by it is
reduced; or
(iii) (REDUCED RETURN) its return on capital or other effective
return is reduced,
the Indemnified Party may notify the Borrower of the relevant Change in
Law. Subject to paragraph (b), after that notice is given, the Borrower
must pay the Indemnified Party the amounts certified
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by an Authorised Officer of the Indemnified Party as necessary to
compensate the Indemnified Party for the increase or reduction.
(b) (REQUIREMENTS FOR VALID DEMAND) A demand under paragraph (a) must:
(i) give details of the basis and computation of the amount
demanded; and
(ii) specify a date for payment which is at least 14 days after the
date the demand is given.
15.3 VOLUNTARY PREPAYMENT ON CHANGE IN LAW
If the Borrower becomes aware that as a result of a Change in Law it is or
may be obliged to make a payment under Clause 14.1(c) or 15.2(a), the
Borrower may notify the relevant Indemnified Party through the Agent that
it wishes to prepay any Segment affected. That notice is irrevocable. The
Borrower must prepay in accordance with it on the last day of the relevant
Funding Period current when the notice is given.
15.4 MINIMISATION
(a) (NEGOTIATION) If requested by Xxxxxx'x Brewing Group, the Agent and
any relevant Indemnified Party must negotiate with Xxxxxx'x Brewing
Group with a view to finding a means to avoid or minimise the
consequences of a Change in Law mentioned in this Clause, including
changing Lending Offices.
(b) (NO DEFENCE) The Borrower may not refuse a demand under Clause 15.2
on the ground that the relevant increase or reduction or loss of tax
relief could have been avoided.
16. REPRESENTATIONS AND WARRANTIES
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16.1 REPRESENTATIONS AND WARRANTIES
(a) Each of the Borrower and Xxxxxx'x Brewing Group acknowledges that
each of the Indemnified Parties enters into this Agreement in
reliance on the representations and warranties contained in Clause 3
of the Trust Deed being true and correct in all material respects.
(b) Each of the Borrower and Xxxxxx'x Brewing Group acknowledges that
the representations and warranties in Clause 3 of the Trust Deed are
repeated for the benefit of the Indemnified Parties in accordance
with Clause 3.4 of the Trust Deed.
(c) Xxxxxx'x Brewing Group warrants that the Exchangeable Bond Issue is
not and will not be an Approved Facility.
16.2 PARTICIPANT REPRESENTATION AND WARRANTIES
Each Participant represents and warrants to each party that it, in good
faith, is not relying upon any margin stock (as defined in Regulation U)
as
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collateral in the extension or maintenance of the financial accommodation
provided for in this Agreement.
16.3 RELIANCE ON REPRESENTATIONS AND WARRANTIES
Each of the Borrower and Xxxxxx'x Brewing Group acknowledges that the
Indemnified Parties have entered this Agreement in reliance on the
representations and warranties in this Clause.
17. UNDERTAKINGS
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(a) Each of the Borrower and Xxxxxx'x Brewing Group acknowledges that it
has given the undertakings in the Trust Deed for the benefit of the
Indemnified Parties and that each Indemnified Party is entering into
this Agreement in reliance on those undertakings.
(b) Xxxxxx'x Brewing Group undertakes to use its reasonable efforts to
ensure that, once it has directly or indirectly acquired at least
50% of the shares in Beringer (the Initial Shares) it acquires as
soon as practicable all of the remaining issued shares in Beringer.
This does not oblige Xxxxxx'x Brewing Group to acquire the remaining
shares on terms which are materially different from the terms upon
which it directly or indirectly acquires the Initial Shares.
(c) In the event that the Borrower provides a Drawdown Notice under
Clause 6, Xxxxxx'x Brewing Group will not, and will ensure that the
issuer under the Exchangeable Bond Issue does not, cancel, reduce
materially amend or delay the Exchangeable Bond Issue or delay the
receipt of any proceeds from that issue.
(d) Xxxxxx'x Brewing Group undertakes to ensure that the Exchangeable
Bond Issue does not at any time become an Approved Facility.
(e) Xxxxxx'x Brewing Group undertakes to provide a certificate from the
Chief Financial Officer no later than one Business Day after each
monthly meeting of the board of directors of Xxxxxx'x Brewing Group
certifying the Liquidity as at the month end, the calculation
thereof and the amount in excess of A$800,000,000 (if any).
(f) Xxxxxx'x Brewing Group must not increase the price per Beringer
share under its takeover offer above US$55.75.
18. EVENTS OF DEFAULT AND TRUST DEED
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18.1 EVENTS OF DEFAULT
(a) The list of Events of Default and the rights of the Indemnified
Parties as Creditors as a consequence of an Event of Default are set
out in Clause 5 of the Trust Deed. Each of the Borrower and Xxxxxx'x
Brewing Group acknowledges that each Indemnified Party enters into
this Agreement in reliance on the rights conferred under
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Clause 5 of the Trust Deed and on the basis that they are and will
be entitled to exercise those rights as a `Creditor'.
(b) If an Event of Default is subsisting and the Agent is required
or entitled to give any directions or instructions to the
Trustee, or is itself entitled to take any action under Trust
Deed or any other Transaction Document as a result of the
Event of Default, the Agent must give those directions or in
accordance with the instructions of the Majority Participants.
Such action includes the Agent or, if applicable, the Trustee
giving a notice under Clause 5.2 of the Trust Deed.
18.2 AMENDMENT OR WAIVER
Each Participant confirms that they 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 part to the relevant
amendment agreement or had given the relevant waiver.
19. INTEREST ON OVERDUE AMOUNTS
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19.1 DEFAULT INTEREST
(a) Subject to Clause 19.6 , the Borrower will pay interest on all
amounts due and payable by it under or in relation to this
Agreement (including such amounts due for payment under Claus 5
of the Trust Deed) and unpaid (including interest payable under
this Clause). Interest under this Clause will accrue on a daily
basis at the rate provided in Clause 19.2 from the date such
amount is due and payable.
(b) All amounts payable by the Borrower to an Indemnified Party under
this Clause 19.1 will be payable on demand by the Agent.
19.2 RATE
Such interest will accrue 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 Agent to be the aggregate of 2%
per annum and the higher of:
(a) the rate (if any) applicable to such amount immediately prior
to the due date; and
(b) the sum of the Margin and the arithmetic mean (rounded
upwards, if necessary, to the nearest four decimal places) of
the rates quoted to the Agent no later than two Business Days
after the date of default (or, as appropriate, the second
Business Day before the expiry of the funding period referred
to below) by the Reference Banks or, in the case of an unpaid
A$ amount, three Australian banks (as selected by
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the Agent), for the making of deposits in the currency
concerned of an amount comparable to the overdue amount on
call or for such funding period not exceeding three months as
the Agent may determine from time to time (or, if no such
quotes are available, such equivalent rate as the Agent may
determine).
19.3 BASIS OF CALCULATION
Interest under Clause 19.2 will be calculated on the basis of a year of
365 days (in the case of unpaid amounts denominated in Australian
dollars) or 360 days (in the case of unpaid amounts denominated in US
dollars).
19.4 CAPITALISATION
Unless demanded more frequently, interest under this Clause 19 will
capitalise quarterly.
20. FEES
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20.1 ESTABLISHMENT FEE
The Borrower must pay each Participant (or as nominated by a
Participant), within 5 Business Days of the date of this Agreement, an
establishment fee in US dollars equal to 0.15% of that Participant's
Commitment as at the date of this Agreement.
20.2 FACILITY FEE
(a) Subject to paragraph (d) and Clause 20.3, a facility fee
accrues from the date of this Agreement at 0.20% per annum on
the maximum amount of the Commitment of each Participant in
each calendar quarter in which the facility fee is calculated.
(b) The facility fee is calculated on the actual number of days
elapsed and on the basis of a year of 360 days.
(c) The accrued facility fee must be paid by the Borrower in US
dollars in arrears on the last Business Day of each calendar
quarter.
(d) If the net proceeds from the Exchangeable Bond Issue by
Xxxxxx'x Brewing Group have not been received by 31 December
2000, the facility fee will accrue at 0.25% per annum on and
from 1 January 2001 until such time as the proceeds (less any
associated costs, expenses and fees) from the Exchangeable
Bond Issue have been received, on and from which date the
facility fee will revert to 0.20% per annum.
20.3 REVIEW
If Xxxxxx'x Brewing Group's Standard and Poor's rating falls below
BBB+, the parties acknowledge that the Indemnified Parties may change
the fees and Margin after consultation with the Borrower and Xxxxxx'x
Brewing Group. Any change in the fees or Margin will take effect on the
giving of a notice by
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the Agent (acting on the instructions of all Participants). The Agent
may give any number of separate notices if there are any further falls
in the credit rating.
20.4 AGENCY FEES
An agency fee must be paid by the Borrower to the Agent in accordance
with the terms set out in an agency fee letter dated on or about the
date of this Agreement.
21. INDEMNITIES
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Each of the Borrower and Xxxxxx'x Brewing Group (jointly and severally)
indemnifies each Indemnified Party on demand against any claim, loss,
liability, cost and expense that may be incurred or sustained by the
Indemnified Party (or any officer or employee of the Indemnified Party)
as a consequence of:
(a) the occurrence of any Event of Default or Potential Event of
Default;
(b) any statement in, conduct relying on or omission or alleged
omission from:
(i) any information memorandum or loan proposal; or
(ii) any document or information prepared or authorised by
it,
or any claim in respect of any of the above
(including reasonable legal costs on a full indemnity
basis);
(c) a Segment requested in a Drawdown Notice or Selection Notice
not being provided for any reason (including, without
limitation, failure to fulfil any condition precedent but
excluding any default by the Indemnified Party which is
claiming under this Clause);
(d) a Participant receiving payments of principal in respect of
any Segment (including under Clause 10.2) other than on the
last day of a Funding Period relating to the Segment or any
period under Clause 19.2 for any reason, including, without
limitation, prepayment in accordance with this Agreement, but
excluding default by the Agent; or
(e) any investigative, administrative or judicial proceeding
(whether or not such Indemnified Party shall be designated a
party thereto) brought or threatened relating to or arising
out of this Agreement or any actual or proposed use of the
proceeds of the Segments hereunder.
Without limitation, the indemnity will cover any amount determined by
the relevant Participant to be incurred by reason of the liquidation or
re-employment of deposits or other funds acquired or contracted for by
the relevant Participant to fund or maintain any Segment or amount
(including loss of margin).
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Nothing in this Clause, prevents the Borrower or Xxxxxx'x Brewing Group
from taking legal action against an Indemnified Party for amounts
received under paragraph (e) on the grounds that the loss indemnified
resulted from gross negligence or wilful misconduct of the Indemnified
Party.
22. CURRENCY INDEMNITY
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22.1 GENERAL
Each of the Borrower and Xxxxxx'x Brewing Group (jointly and severally)
indemnifies each Indemnified Party on demand against any deficiency
that may arise whenever, for any reason (including, without limitation,
as a result of a judgment or order):
(a) that Indemnified Party receives or recovers an amount in one
currency (the Payment Currency) in respect of an amount
denominated under this Agreement in another currency (the Due
Currency); and
(b) the amount actually received or recovered by that Indemnified
Party in accordance with its normal practice when it converts
the Payment Currency into the Due Currency is less than the
relevant amount of the Due Currency.
22.2 LIQUIDATION
In the event of the Liquidation of the Borrower, each of the Borrower
and Xxxxxx'x Brewing Group (jointly and severally) indemnifies each
Indemnified Party against any deficiency resulting from any variation
between:
(a) the exchange rate actually applied for the purposes of the
Liquidation in converting into another currency an amount
expressed in one currency due or contingently owing under this
Agreement or under a judgment or order relating to this
Agreement; and
(b) the exchange rate at which that Indemnified Party 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. CONTROL ACCOUNTS
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The accounts kept by the Agent constitute sufficient evidence unless
the contrary is proved of the amount at any time due from the Borrower
under this Agreement.
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24. EXPENSES
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Within 5 Business Days of demand, the Borrower must reimburse and
indemnify:
(a) the Agent for the reasonable expenses of the Agent in relation
to the preparation, execution and completion of this Agreement
and any subsequent consent, approval, waiver or amendment
including in each case reasonable legal costs and expenses
(together with any GST payable with respect to the expenses
referred to in this Clause (subject to the receipt by the
Borrower of a valid tax invoice)); and
(b) each Indemnified Party for the expenses of that Indemnified
Party in relation to the enforcement of this Agreement, or the
preservation or of any rights under this Agreement including
in each case legal costs and expenses (together with any GST
payable with respect to the expenses referred to in this
Clause (subject to the receipt by the Borrower of a valid tax
invoice)).
25. STAMP DUTIES
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(a) The Borrower must pay all stamp, transaction, registration and
similar Taxes (including fines, penalties and interest) that
may be payable or determined to be payable in relation to the
execution, delivery, performance or enforcement of this
Agreement or any payment or receipt or any other transaction
contemplated by this Agreement.
(b) Those Taxes include financial institutions duty, debits tax or
other Taxes payable by return and Taxes passed on to any
Indemnified Party by a bank or financial institution.
(c) The Borrower indemnifies each Indemnified Party on demand
against any liability resulting from delay or omission to pay
those Taxes, except to the extent the liability results from
failure by the Indemnified Party to pay any Tax after having
been put in cleared funds to do so by the Borrower.
26. SET-OFF
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(a) The Borrower severally authorises each Indemnified Party if an
Event of Default which would entitle that Indemnified Party
(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 Indemnified Party towards satisfaction of any
sum at any time due and payable by it to that Indemnified
Party under or in relation to this Agreement or any
Transaction Document.
(b) Any Indemnified Party may effect currency exchanges
appropriate to implement that application.
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27. WAIVERS, REMEDIES CUMULATIVE
(a) No failure to exercise or delay in exercising any right, power
or remedy under this Agreement operates as a waiver. A single
or partial exercise of any right, power or remedy does not
preclude any other or further exercise of that or any other
right, power or remedy.
(b) The rights, powers and remedies provided to the parties in
this Agreement are in addition to, and do not exclude or
limit, any right, power or remedy provided by law or equity or
by any agreement.
28. SEVERABILITY OF PROVISIONS
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Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction is ineffective as to that jurisdiction to the extent
of the prohibition or unenforceability. That does not invalidate the
remaining provisions of this Agreement nor affect the validity or
enforceability of that provision in any other jurisdiction.
29. MORATORIUM LEGISLATION
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To the full extent permitted by law all legislation that at any time
directly or indirectly:
(a) lessens, varies or affects in favour of the Borrower or
Xxxxxx'x Brewing Group any obligation under this Agreement; or
(b) delays, prevents or prejudicially affects the exercise by any
Indemnified Party of any right, power or remedy conferred by
this Agreement,
is excluded from this Agreement.
30. SURVIVAL OF REPRESENTATIONS AND INDEMNITIES
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30.1 SURVIVAL OF REPRESENTATIONS
All representations and warranties in this Agreement will survive the
execution and delivery of this Agreement and final payment of the
Principal Outstanding.
30.2 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.
31. ASSIGNMENTS
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31.1 ASSIGNMENT BY THE BORROWER/XXXXXX'X BREWING GROUP
Neither the Borrower nor Xxxxxx'x Brewing Group may assign or transfer
any of its rights or obligations under this Agreement without the prior
written consent of the Agent acting on the instructions of all
Participants.
31.2 ASSIGNMENT BY PARTICIPANTS
A Participant may assign all or any of its rights or transfer all or
any of its obligations under this Agreement at any time if:
(a) any necessary prior Authorisation is obtained;
(b) unless the transferee or assignee is an Authorised Transferee,
Xxxxxx'x Brewing Group has given its prior consent, which:
(i) it must not withhold unreasonably; and
(ii) will be deemed to have been given if no response is
received within 30 days of the request for consent;
(c) in the case of a transfer of obligations, the transfer is
effected by a substitution in accordance with
Clause 31.3; and
(d) the assignee or transferee first executes or delivers to
Xxxxxx'x Brewing Group (with a copy to the Agent) a Creditor
Accession Deed if it is not already a Creditor.
31.3 SUBSTITUTION CERTIFICATES
(a) If a Participant (the TRANSFEROR) wishes to substitute a new
bank or financial institution for all or part of its
participation under this Agreement, it and the substitute must
execute and deliver to the Agent four counterparts of a
certificate substantially in the form of Annexure D.
(b) On receipt of the certificate, if the Agent is satisfied that
the substitution complies with Clause 31.2, it must promptly:
(i) notify Xxxxxx'x Brewing Group;
(ii) countersign the counterparts on behalf of all other
parties to this Agreement;
(iii) enter the substitution in a register kept by it
(which will be conclusive); and
(iv) retain one counterpart and deliver the others to the
Transferor Participant, the substitute Participant
and Xxxxxx'x Brewing Group.
(c) When the certificate is countersigned by the Agent, the
Transferor will be relieved of its obligations to the extent
specified in the certificate and the substitute Participant
will be bound by this Agreement and the Trust Deed as stated
in the certificate.
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(d) Each other party to this Agreement irrevocably authorises the
Agent to sign each certificate on its behalf.
(e) Unless the Agent otherwise agrees, no substitution may be made
while any Drawdown Notice or Selection Notice is current.
(f) Each Participant which has transferred or assigned any of its
rights or obligations under this Agreement to a person who is
not a Creditor must give Xxxxxx'x Brewing Group and the
Trustee the notices referred to in Clause 7.2 of Trust Deed
with respect to such assignment or transfer unless that person
is already a Creditor and a copy of the applicable Creditor
Accession Deed has been given to the Agent.
31.4 ASSIGNMENT BY REFERENCE BANK
If a Participant that is a Reference Bank ceases to be a Participant
then, in consultation with Xxxxxx'x Brewing Group, the Agent must
appoint another Participant as a replacement Reference Bank.
31.5 DISCLOSURE
A Participant may disclose, with the prior consent of Xxxxxx'x Brewing
Group (which must not be unreasonably withheld) or as otherwise
permitted under the Trust Deed, to a proposed assignee, transferee or
sub-participant information that relates to any member of the Group or
was furnished in connection with this Agreement or the Trust Deed.
31.6 CHANGE OF LENDING OFFICE
A Participant may change its Lending Office to another jurisdiction if
it first notifies and consults with Xxxxxx'x Brewing Group.
31.7 NO INCREASED COSTS
Despite anything to the contrary in this Agreement, if an Indemnified
Party assigns or transfers its rights and/or obligations under this
Agreement or changes its Lending Office, the Borrower will not be
required to pay any net increase in the aggregate amount of costs,
Taxes, fees or charges that is a consequence of the assignment,
transfer or change of Lending Office and of which the Participant or
its assignee or transferee (as applicable) was aware or ought
reasonably to have been aware on the date of the assignment, transfer
or change.
31.8 TRUST DEED
Nothing in this Clause 31 limits Clauses 7, 34 and 35 of the Trust
Deed.
31.9 PRO RATA ASSIGNMENT
Despite the above, an assignment or transfer of all or a proportion of
the Commitment of a Participant which is an original party to this
Agreement (an Original Participant) may only occur at any time if all
or, as applicable, the same proportion of each other Original
Participant's Commitment is assigned
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or transferred at approximately the same time. This does not apply to a
transfer or assignment by an Original Participant to its Authorised
Transferee, but the Authorised Transferee will be treated as an
Original Participant for the purposes of this provision.
32. RELATIONSHIP OF PARTICIPANTS TO AGENT
--------------------------------------------------------------------------------
32.1 AUTHORITY
(a) Subject to Clause 32.15 each Participant irrevocably appoints
the Agent to act as its agent under this Agreement and as its
Facility Agent under the Transaction Documents with all powers
expressly delegated to the Agent by this Agreement and a
Facility Agent under the Transaction Documents together with
all other powers reasonably incidental to those powers.
(b) The Agent will have no duties or responsibilities except those
expressly set out in this Agreement or, as applicable, the
Transaction Documents.
32.2 INSTRUCTIONS; EXTENT OF DISCRETION
(a) (i) Where this Agreement or a Transaction Document
expressly stipulates that the Agent is to exercise any
of its rights, powers and discretions (each a Power)
on the instructions of a certain Participant, certain
Participants or all Participants, or if the Agent has
been requested by Xxxxxx'x Brewing Group or any
Participant to exercise any such Power, the Agent must
seek the instructions of that Participant, those
Participants or all Participants (as the case may be).
(ii) The Agent must act in accordance with those
instructions.
(iii) The Agent may not exercise the Power without those
instructions.
(b) Where this Agreement or a Transaction Document does not
expressly stipulate that the Agent is to exercise any of its
Power on the instructions of any Participants:
(i) the Agent may (but is not obliged to) seek the
instructions of the relevant Participant on whose
behalf the Power is to be exercised or, in any other
case, the Majority Participants;
(ii) if those instructions are given within 5 Business
Days of the Agent seeking them or, if later, before
the Agent exercises the Power, the Agent shall act in
accordance with those instructions; and
(iii) if:
(A) those instructions are not given within a
period of 10 Business Days (or such other
period as may be
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provided for in the Trust Deed), the Agent
may (but is not obliged to); or
(B) no instructions are sought, the Agent must,
as it thinks fit, exercise the Power in the best
interest of the Participant on whose behalf it is to
be exercised or, in any other case, the Participants.
(c) Any action taken by the Agent in accordance with this
Agreement or the Transaction Documents binds all the
Participants.
(d) Except where this Agreement otherwise expressly provides, the
Agent is not obliged to consult with the Participants before
giving any consent, approval or agreement or making any
determination.
32.3 NO OBLIGATION TO INVESTIGATE AUTHORITY
(a) Neither the Borrower nor Xxxxxx'x Brewing Group need inquire
whether any instructions have been given to the Agent by all
Participants, the Majority Participants or any Participant or
as to the terms of those instructions.
(b) As between the Borrower and Xxxxxx'x Brewing Group on the one
hand and the Agent and the Participants on the other, all
action taken by the Agent will be taken to be authorised.
(c) Where the Agent has sought the instructions of any Participant
in relation to any consent, approval, agreement or waiver
(each a Consent) requested by the Borrower or Xxxxxx'x Brewing
Group under this Agreement or a Transaction Document, the
Agent must, upon request, notify Xxxxxx'x Brewing Group of the
Participants which:
(i) instructed the Agent to give the Consent;
(ii) instructed it not to give the Consent;
(iii) at the time of the request, have failed to give any
instructions.
(d) Each Participant irrevocably authorises the disclosure to
Xxxxxx'x Brewing Group by the Agent of the information under
paragraph (c).
32.4 AGENT NOT A FIDUCIARY
Except as expressly provided otherwise, the Agent will not be taken to
owe any fiduciary duty to any Participant, any Group member or any
other person except as expressly provided in this Agreement or a
Transaction Document.
32.5 EXONERATION
Neither the Agent nor any of its respective directors, officers,
employees, agents, attorneys, Group members or successors is
responsible to the Participants for or will be liable (whether in
negligence or on any other ground whatever) in respect of:
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(a) any conduct relating to, or any statement, conduct,
representation or warranty contained in or relying on, any
loan proposal or information memorandum or in this Agreement
or any Transaction Document or in any document or agreement
referred to in or received under this Agreement or any
Transaction Document;
(b) the value, validity, effectiveness, genuineness,
enforceability or sufficiency of any loan proposal or
information memorandum, in this Agreement or any Transaction
Document or any other document or agreement;
(c) any failure by any Group member to perform its obligations; or
(d) any action taken or omitted to be taken by it or them under
this Agreement or any Transaction Document except in the case
of its or their own fraud, wilful misconduct or negligence.
32.6 DELEGATION
The Agent may employ agents and attorneys.
32.7 RELIANCE ON DOCUMENTS AND EXPERTS
The Agent may rely on:
(a) any document (including any facsimile transmission or email)
given under or in relation to this Agreement or a Transaction
Document and reasonably believed by it to be genuine and
correct and to be given under any such document; and
(b) advice and statements of lawyers, independent accountants and
other experts selected by the Agent.
32.8 NOTICE OF TRANSFER
The Agent may treat each Participant as the holder of the Participant's
rights under this Agreement until the Agent has received a substitution
certificate in accordance with this Agreement or a notice of assignment
satisfactory to the Agent.
32.9 NOTICE OF DEFAULT
(a) The Agent will be taken not to have knowledge of the
occurrence of an Event of Default or Potential Event of
Default unless the Agent has received notice from a
Participant or Group member stating that an Event of Default
or Potential Event of Default has occurred and describing it.
(b) If the Agent receives such notice, or the officers of the
Agent having day to day responsibility for the transaction
become aware, that an Event of Default or Potential Event of
Default has occurred, the Agent must notify the Participants.
32.10 AGENT AS PARTICIPANT AND BANKER
(a) The Agent in its capacity as a Participant has the same rights
and powers under this Agreement or any Transaction Documents
as any other Participant. It may exercise them as if it were
not acting as the Agent.
(b) The Agent may engage in any kind of business with any Group
member as if it were not the Agent. It may receive
consideration for services in connection with this Agreement
or any Transaction Document and otherwise without having to
account to the Participants.
32.11 INDEMNITY TO AGENT
(a) Each Participant indemnifies the Agent (to the extent not
reimbursed by any Group member under this Agreement or any
Transaction Document) ratably in accordance with its
respective Commitment (or, if all the Commitments have been
fully cancelled, in accordance with its respective Commitment
as it was immediately before such cancellation) against any
claim, loss, liability, cost and expense that may be incurred
or sustained by the Agent directly or indirectly under or in
relation to this Agreement or the Transaction Documents.
(b) No Participant is liable under this Clause 32.11 for any of
the above to the extent that they arise from the Agent's
wilful misconduct or negligence.
(c) This Clause 32.11 does not affect the liability of the
Borrower.
32.12 INDEPENDENT INVESTIGATION OF CREDIT
Each Participant confirms that it has made and will continue to make,
independently and without reliance on the Agent or any other
Participant, and based on the documents, agreements and information
that it regards appropriate:
(a) its own investigations into the affairs of the Group members;
and
(b) its own analyses and decisions whether to take or not take
action under this Agreement or any Transaction Document.
32.13 NO MONITORING
The Agent is not required to keep itself informed as to the compliance
by any Group member with this Agreement or any Transaction Document or
any other document or agreement or to inspect any property or book of
any Group member.
32.14 INFORMATION
(a) The Agent must provide to each Participant a copy of each
notice, report and other document that is provided to the
Agent (in its capacity as such) under this Agreement or the
Transaction Documents in sufficient copies for the
Participants.
(b) The Agent is not obliged to disclose any information relating
to any Group member if in the opinion of the Agent (on the
basis of the advice of its legal advisers) disclosure would or
might breach a law or a duty of secrecy or confidence. The
Agent may disclose to the Participants any information
relating to the business, financial condition, status or
affairs of the Borrower which comes into its possession in its
capacity as Agent, but it is not obliged to do so except to
the extent that this Agreement or the Trust Deed expressly
provide.
32.15 REPLACEMENT OF AGENT
(a) Subject to the appointment of a successor Agent as provided in
this Clause:
(i) the Agent may resign at any time by giving not less
than 30 days' prior notice to the Participants and to
Xxxxxx'x Brewing Group; and
(ii) the Majority Participants may remove the Agent from
office by giving not less than 30 days' prior notice
to Xxxxxx'x Brewing Group.
(b) On notice of resignation or removal the Majority Participants
have the right to appoint a successor Agent approved by
Xxxxxx'x Brewing Group who accepts the appointment.
(c) If no successor Agent is appointed within 30 days after
notice, the retiring Agent may appoint a successor Agent who
accepts the appointment. Until the successor is appointed the
Agent must continue to act as agent.
(d) On its appointment the successor Agent will have all the
rights, powers and obligations of the retiring Agent. The
retiring Agent will be discharged from its rights, powers and
obligations.
(e) The retiring Agent must execute and deliver all documents or
agreements that are necessary or in its opinion desirable to
transfer to the successor Agent each Security Interest and
Guarantee held by the retiring Agent or to effect the
appointment of the successor Agent.
(f) After any retiring Agent's resignation or removal, this Clause
will continue in effect in respect of anything done or omitted
to be done by it while it was acting as Agent.
(g) Xxxxxx'x Brewing Group must not unreasonably withhold its
approval of any proposed successor Agent and must respond as
soon as practicable to any request for approval.
(h) The Borrower and Xxxxxx'x Brewing Group (jointly and
severally) must pay the costs in respect of its resignation,
removal and replacement under Clause 32.15(a)(i) or (ii).
32.16 AMENDMENTS AND WAIVERS
(a) Each Participant authorises the Agent to agree with the other
parties to this Agreement or any Transaction Document to amend
(or to instruct the Trustee to amend) this Agreement or any
Transaction Document or to give any waiver in respect of any
provision of this Agreement or any Transaction Document (or to
instruct the Trustee to do so) if:
(i) the amendment or waiver will not increase the
Commitments, change the fees or Margin, extend the
Availability Period, amend the definitions of LIBOR,
Repayment Date, and Majority Participants, extend the
dates or reduce amounts of payment of any amounts
under this Agreement or a Transaction Document or
amend this Clause 32.16 or any provision under which
the agreement or instructions of all Participants,
the Majority Participants, all Creditors, the
Majority Creditors or an individual Creditor being a
Participant are required; and
(ii) (A) the Agent is satisfied that the amendment is
made or the waiver is granted to correct
a manifest error or an error of a minor
nature or that the amendment or waiver
is of a formal or technical nature only; or
(B) the Majority Participants have, on request
by the Agent, notified the Agent of their
agreement to the amendment or waiver.
Each Participant will be bound by any amendment so agreed to
by the Agent as if it were party to the relevant amendment
agreement, and will be bound by any waiver so granted by the
Agent.
(b) The Borrower irrevocably and unconditionally authorises
Xxxxxx'x Brewing Group to agree with any other party to this
Agreement to any amendment to, or to any waiver in respect of,
any provision of this Agreement. The Borrower's consent to any
such amendment or waiver is not required. The Borrower will be
bound by or any such amendment or waiver agreed to by Xxxxxx'x
Brewing Group as if it were party to the relevant amendment or
waiver.
(c) No amendment to Clause 10.1 of the Trust Deed as set out in
paragraph 14 of Schedule 2 is permitted without the prior
written consent of the Agent acting on the instructions of all
Participants, and Xxxxxx'x Brewing Group will not propose or
agree to any such amendment.
33. PROPORTIONATE SHARING
--------------------------------------------------------------------------------
33.1 SHARING
Subject to the Trust Deed and except where this Agreement expressly
provides for payment to be made directly to a Participant, whenever any
Participant receives or recovers any money in respect of any sum due
from the Borrower or Xxxxxx'x Brewing Group (Payer) under this
Agreement in any way (including without limitation by set-off) except
through distribution by the Agent under this Agreement:
(a) the Participant must immediately notify the Agent;
(b) the Participant must immediately pay that money to the Agent
(unless the Agent otherwise directs);
(c) the Agent must treat the payment as if it were a payment by
the Payer on account of all money then payable to the
Indemnified Parties; and
(d) (i) the payment or recovery will be taken to have been a
payment for the account of the Agent and not to the
Participant for its own account, and to that extent
the liability of the Payer to the Participant will
not be reduced by the recovery or payment, other
than to the extent of any distribution received by
the Participant under paragraph (c); and
(ii) (without limiting sub-paragraph (i)) immediately on
the Participant making or becoming liable to make a
payment under paragraph (b), the Payer must indemnify
the Participant against the payment to the extent
that (notwithstanding sub-paragraph (i)) its
liability has been discharged by the recovery or
payment.
If all or a portion of the relevant recovery or payment by or to the
Participant is subsequently rescinded or must otherwise be restored to
the Payer the Participants must repay to the Agent for the account of
the Participant the amount that is necessary to ensure that all the
Participants share ratably in the amount of the recovery or payment
retained. Paragraphs (c) and (d) above apply only to the retained
amount.
33.2 REFUSAL TO JOIN IN ACTION
A Participant who does not accept an invitation to join an action
against a Group member or does not share in the costs of the action (in
each case having been given a reasonable opportunity to do so) is not
entitled to share in any amount so recovered.
34. NOTICES
--------------------------------------------------------------------------------
Any notice, demand, consent or other communication (a Notice) given
under this Agreement:
(a) must be in writing and signed by an Authorised Officer of the
sender;
(b) must be delivered to the intended recipient by prepaid post
(where posted to an address in another country, by registered
airmail) or by hand or fax to the address or fax number set
out in this Agreement or the address or fax number last
notified by the intended recipient to the sender; and
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(c) will be taken to be duly given or made:
(i) in the case of delivery in person, when delivered;
(ii) in the case of delivery by post, two Business Days
after the date of posting (where posted to an address
in the same country) or seven Business Days after the
date of posting (where posted to an address in
another country); and
(iii) in the case of fax, on receipt by the sender of a
transmission control report from the despatching
machine showing the relevant number of pages and the
correct destination fax machine number or name of
recipient and indicating that the transmission has
been made without error,
but if the result of the foregoing is that a Notice would be
taken to be given or made on a day that is not a business day
in the place to which the Notice is sent or is later than
4.00pm (local time) it will be taken to have been duly given
or made at the commencement of business on the next business
day in that place.
35. AUTHORISED OFFICERS
--------------------------------------------------------------------------------
Each of the Borrower and Xxxxxx'x Brewing Group irrevocably authorises
each Indemnified Party to rely on a certificate by any person
purporting to be its director or secretary as to the identity and
signatures of its Authorised Officers. Each of the Borrower and
Xxxxxx'x Brewing Group warrants that those persons have been authorised
to give notices and communications under or in connection with this
Agreement.
36. GOVERNING LAW
--------------------------------------------------------------------------------
This Agreement is governed by the laws of Victoria.
37. COUNTERPARTS
--------------------------------------------------------------------------------
This Agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
38. CONFIDENTIALITY
--------------------------------------------------------------------------------
This Agreement and the transactions contemplated by it are
confidential. Clause 34 of the Trust Deed applies to them.
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39. ACKNOWLEDGEMENT BY BORROWER AND XXXXXX'X BREWING GROUP
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Each of the Borrower and Xxxxxx'x Brewing Group confirm that:
(a) it has not entered into this Agreement in reliance on, or as a
result of, any statement or conduct of any kind of or on
behalf of any Indemnified Party or any Related Company of any
Indemnified Party (including, without limitation, any advice,
warranty, representation or undertaking); and
(b) neither any Indemnified Party nor any Group member of any
Indemnified Party is obliged to do anything (including,
without limitation, disclose anything or give advice),
except as expressly set out in this Agreement.
40. GOODS AND SERVICES TAX
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Notwithstanding any other provision of this Agreement:
(a) if GST is payable in relation to a supply made under or in
connection with this Agreement the party making the supply
may, in addition to any amount or consideration payable under
this Agreement, and subject to issuing a valid tax invoice,
recover from the recipient of the supply an additional amount
on account of GST, such amount to be calculated by multiplying
the relevant amount or consideration payable for the relevant
supply by the prevailing GST rate;
(b) without limiting the generality of the foregoing, in the event
that an Indemnified Party is not entitled to an input tax
credit in respect of the amount of any GST charged to or
recovered from such Indemnified Party, by any person, or
payable by such Indemnified Party, or in respect of any amount
which is recovered from an Indemnified Party by way of
reimbursement of GST referable directly or indirectly to any
supply made under or in connection with this Agreement, the
Indemnified Party shall be entitled to increase any amount or
consideration payable by the Borrower on account of such input
tax and recover from the Borrower the amount of any such
increase;
(c) where the Borrower is required under this agreement to
indemnify or reimburse an Indemnified Party for any costs,
expenses or liabilities of the Indemnified Party, then the
amount of the costs, expenses or liabilities is the actual
amount incurred by the Indemnified Party, less any input tax
credit the Indemnified Party is entitled to receive in
relation to those costs, expenses or liabilities. For the
purposes of this paragraph (c) the Indemnified Party is
entitled to receive those input tax credits that can be
identified and quantified in accordance with the apportionment
model used by the Indemnified Party from time to time as
approved by the Australian Taxation Office.
Any additional amount on account of GST, or on account of an amount for
which the Indemnified Party is not entitled to an input tax credit,
recoverable
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from the Borrower pursuant to paragraph (a) or paragraph (b) of this
Clause shall be calculated without any deduction or set-off of any
other amount
In this clause the terms input tax credit and tax invoice have the
meanings given in Section 195-1 of the A New Tax System (Goods and
Services Tax) Xxx 0000.
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SCHEDULE 1
PARTICIPANTS
--------------------------------------------------------------------------------------------------
1 2 3
COMMITMENT
(US$) US LENDING OFFICE
PARTICIPANT
--------------------------------------------- ---------------- -----------------------------------
NATIONAL AUSTRALIA BANK LIMITED 135,000,000 NATIONAL AUSTRALIA BANK LIMITED
(ABN 12 004 044 937) of Xxxxx 0, 00xx Xxxxx, Xxxxxxx Xxxxxxxx
000 Xxxxxxx Xxxxxx, Xxxxxxxxx Xxxxxxxx 000 Xxxx Xxxxxx
Xxxxxxxxx Xxx Xxxx XX 00000 XXX
Attention Xx Xxxx Xxxxxx
Fax No (0 000) 000 0000
--------------------------------------------- ---------------- -----------------------------------
BANK OF AMERICA NATIONAL ASSOCIATION (ABN 135,000,000 BANK OF AMERICA NATIONAL
51 664 874 531) of 0000 Xxxxxxx Xxxxxxxxx, XXXXXXXXXXX
Xxxxxxxx Xxxxxxxxxx 00000-0000, XXX 0000 Xxxxxxx Xxxxxxxxx, Xxxxxxxx
Xxxxxxxxxx 00000-0000, XXX
Attention Xxxxxx Xxxxx
Fax No (0 000) 000 0000
--------------------------------------------- -----------------------------------
WESTPAC BANKING CORPORATION (ABN 33 007 457 135,000,000 WESTPAC CORPORATE BANKING
141) of 000 Xxxxxxx Xxxxxx, Xxxxxxxxx Level 39, 000 Xxxxx Xxxxxx, Xxx
Xxxxxxxx Xxxxxxxxx Xxxx 00000-00 XXX
Attention Ms Xxxx Xxxxx, Vice
President, Corporate Relationship
Manager
Fax No (0 000) 000 0000
--------------------------------------------- ---------------- -----------------------------------
COMMONWEALTH BANK OF AUSTRALIA (ABN 48 123 135,000,000 COMMONWEALTH BANK OF AUSTRALIA
123 124) of 000 Xxxxxx Xxxxxx, Xxxxxxxxx Grand Cayman Xxxxxx
Xxxxxxxx Australia C/- Commonwealth Bank of Australia
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 1000 22 USA
Attention Executive Vice
President and General Manager,
Americas
Fax No (0 000) 000 0000
--------------------------------------------- ---------------- -----------------------------------
AUSTRALIA AND NEW ZEALAND BANKING GROUP 135,000,000 AUSTRALIA AND NEW ZEALAND BANKING
LIMITED (ABN 11 005 357 522) of 000 Xxxxxxx XXXXX XXXXXXX
Xxxxxx, Xxxxxxxxx Xxxxxxxx Xxxxxxxxx) 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx XX
XXX 00000 2798
Attention Xx Xxxxxxx Xxxxx
Fax No (0 000) 000 0000
--------------------------------------------- ---------------- -----------------------------------
BRIDGING FACILITY AGREEMENT Xxxxxx Xxxxxxxx
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--------------------------------------------- ---------------- -----------------------------------
1 2 3
COMMITMENT
PARTICIPANT (US$) US LENDING OFFICE
--------------------------------------------- ---------------- -----------------------------------
UBS AG, STAMFORD BRANCH of 667 Washington 135,000,000 UBS AG, STAMFORD BRANCH
Boulevard 000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx XX 00000 XXX Xxxxxxxx XX 00000 XXX
Attention Xx Xxxxx Xxxxxx
Fax No (0 000) 000 0000
--------------------------------------------- ---------------- -----------------------------------
BRIDGING FACILITY AGREEMENT Xxxxxx Xxxxxxxx
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SCHEDULE 2
CONDITIONS PRECEDENT
--------------------------------------------------------------------------------
1. VERIFICATION CERTIFICATE
--------------------------------------------------------------------------------
A certificate in relation to each of the Borrower and Xxxxxx'x Brewing
Group given by any of its directors, secretaries or assistant
secretaries substantially in the form of Annexure C with the
attachments referred to and dated not earlier than 14 days before the
first Drawdown Date.
2. EXECUTED COUNTERPARTS
--------------------------------------------------------------------------------
Duly executed counterparts of this Agreement.
3. EQUITY ISSUE
--------------------------------------------------------------------------------
A certificate from the secretary or Chief Financial Officer of Xxxxxx'x
Brewing Group that Xxxxxx'x Brewing Group has received the proceeds
from the Equity Issue of an aggregate amount of at least A$500,000,000.
4. EXCHANGEABLE BOND ISSUE
--------------------------------------------------------------------------------
(a) A certified copy of the terms of the Exchangeable Bond Issue
proposed by Xxxxxx'x Brewing Group which provide for:
(i) the issue of bonds with a tenor of 3 years of an
aggregate face amount of US$400,000,000; and
(ii) the subordination of the claims of the bondholders
against the issuer of the bonds and Xxxxxx'x Brewing
Group as guarantor with respect to the bonds on the
winding up of the issuer or Xxxxxx'x Brewing Group
(as applicable) to the claims of unsubordinated
creditors of the issuer or Xxxxxx'x Brewing Group (as
applicable).
(b) A copy of the signed engagement letter received by Xxxxxx'x
Brewing Group from UBS Warburg (or its applicable affiliate)
with respect to the Exchangeable Bond Issue which provides for
it to take place by 31 December 2000.
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5. FUNDING
--------------------------------------------------------------------------------
A certificate signed by Chief Financial Officer of Xxxxxx'x Brewing
Group certifying that sufficient funds (whether in the form of debt,
equity or other form of funds) are available to the Group to acquire
Beringer and the sources of those funds.
6. PURCHASE PRICE
--------------------------------------------------------------------------------
A certificate signed by Chief Financial Officer of Xxxxxx'x Brewing
Group certifying that the consideration to be paid by the applicable
Subsidiary of Xxxxxx'x Brewing Group under its takeover offer for the
shares in Beringer does not exceed US$55.75 per share.
7. APPROVED FACILITY CERTIFICATE
--------------------------------------------------------------------------------
An Approved Facility Certificate in respect of the Facility.
8. CREDITORS
--------------------------------------------------------------------------------
Each Participant is a Creditor under the Trust Deed.
9. RATING
--------------------------------------------------------------------------------
A confirmation received by Xxxxxx'x Brewing Group from Standard &
Poor's (or its Australian subsidiary) that the credit rating allocated
by it to the long term unsecured and unsubordinated debt of Xxxxxx'x
Brewing Group will remain BBB+ or better.
10. BILATERALS
--------------------------------------------------------------------------------
(a) Confirmation from Xxxxxx'x Brewing Group that it has entered
into amending documents to its existing bilateral facilities
extended by the Participants which provide for the increase in
limits and extensions of maturity dates advised to the
Participants by Xxxxxx'x Brewing Group before the date of this
Agreement.
(b) Confirmation from Xxxxxx'x Brewing Group that it has entered
into a bilateral facility with UBS AG, Stamford Branch which
provides for a limit of US$125,000,000 to be made available to
the Borrower for a term ending on 30 September 2005.
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11. AUTHORISATIONS
--------------------------------------------------------------------------------
All necessary Authorisations for the provision of the financial
accommodation under this Agreement and the acquisition of Beringer
directly or indirectly by Xxxxxx'x Brewing Group have been obtained.
12. LEGAL OPINIONS
--------------------------------------------------------------------------------
(a) An opinion of each of Xxxxxx Xxxxxxxx & Hedderwicks and Xxxxx,
Day, Xxxxxx and Xxxxx respectively Australian and US legal
advisers to the Borrower and Xxxxxx'x Brewing Group.
(b) An advice or opinion from Xxxxx, Day, Xxxxxx and Xxxxx that,
upon Xxxxxx'x Brewing Group or any of its wholly owned
subsidiaries acquiring more than half the shares of Beringer,
the compulsory acquisition of the remaining shares under
Delaware General Corporation Law is permitted.
(c) An opinion of Mallesons Xxxxxxx Xxxxxx, the Australian legal
advisers to the Agent.
13. MAJORITY SHAREHOLDING
--------------------------------------------------------------------------------
A certificate signed by Chief Financial Officer of Xxxxxx'x Brewing
Group certifying that acceptances under its takeover offer for more
than 50% of the voting shares in Beringer have been received.
14. TRUST DEED
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Amendment of the Trust Deed:
(a) to insert into Clause 1.1 of the Trust Deed a definition of
BERINGER to mean Xxxxxxxx Wine Estates Holdings, Inc.;
(b) to insert into Clause 1.1 of the Trust Deed a definition of
EXCHANGEABLE BOND ISSUE to mean the bonds issued or to be
issued by a subsidiary of Xxxxxx'x Brewing Group in connection
with the acquisition by the Group of Beringer of an aggregate
face amount of US$400,000,000 upon the security of a
subordinated guarantee from Xxxxxx'x Brewing Group.
(c) to insert in Clause 10.1 the following after paragraph (f):
"(g) Subject to paragraph (h), this Clause 10.1 applies to
Beringer as if it were a Major Subsidiary.
Accordingly, all references in this Clause 10.1 to
MAJOR SUBSIDIARY or RELEVANT SUBSIDIARY include
Beringer.
(h) If Beringer were to become a Guarantor and this would
breach any agreements in existence as at the date on
which it became a member of the Group (other than an
agreement
BRIDGING FACILITY AGREEMENT Xxxxxx Xxxxxxxx
& Hedderwicks
--------------------------------------------------------------------------------
created or entered into in contemplation of it
becoming a member of the Group), then paragraph (g)
will not apply while that breach would occur.
Xxxxxx'x Brewing Group undertakes to use all
reasonable endeavours to obtain, as soon as
practicable after Beringer becomes a wholly owned
Subsidiary of Xxxxxx'x Brewing Group, such consents
or waivers as are necessary to ensure that Beringer
can become a Guarantor without breaching any such
agreements."
(d) amend Clause 4.2(a) of the Trust Deed to read as follows:
"(a) (i) Subject to paragraph (ii), the ratio of
Financial Indebtedness to Net Profit After
Tax for the 12 month period ending 31
December and 30 June each year shall not be
greater than 5.00:1.00.
(ii) The ratio of Financial Indebtedness to Net
Profit After Tax for the 12 month period
ending 31 December 2000, 30 June 2001 and 31
December 2001 shall not be greater than
5.75:1.00 unless all bonds under the
Exchangeable Bond Issue have been exchanged
into ordinary shares of Xxxxxx'x Brewing
Group, in which case, paragraph (a)(i) will
apply with effect on and from the date on
which all the bonds have been so exchanged.
For the purposes of determining this ratio, Financial
Indebtedness shall be calculated as the simple average
of the month end Financial Indebtedness for the 13
month period commencing on the preceding 31 December
or 30 June, as the case may be."
(e) insert the following after paragraph (E) in the definition of
Relevant Indebtedness in Clause 4.1(n)(ii) of the Trust Deed:
"(F) of a special purpose, newly incorporated and wholly
owned Subsidiary of Xxxxxx'x Brewing Group under the
Exchangeable Bond Issue; or
(G) of a Beringer member which is outstanding at the date
on which Beringer becomes a member of the Group and
which was not created in contemplation of it becoming
a member of the Group if such Financial Indebtedness
permanently ceases to be outstanding 12 months after
it becomes a member of the Group.
BERINGER MEMBER means Beringer or any of its Subsidiaries."
(f) Insert in Clause 4.1(p)(iv) the words "and Beringer only after
it becomes a wholly owned subsidiary" after "Mildara Blass
Limited".
BRIDGING FACILITY AGREEMENT Xxxxxx Xxxxxxxx
& Hedderwicks
--------------------------------------------------------------------------------
15. DIVIDEND REINVESTMENT PLAN UNDERWRITING
--------------------------------------------------------------------------------
An underwriting commitment letter for a period of three years under
which UBS Warburg (or any of its affiliates) agrees to enter into three
consecutive 12 month underwriting agreements pursuant to which it will
underwrite shares to be issued by Xxxxxx'x Brewing Group under its
dividend reinvestment plan at a 5% discount with respect to 30% of the
dividends declared by Xxxxxx'x Brewing Group during the currency of
each such agreement.
BRIDGING FACILITY AGREEMENT Xxxxxx Xxxxxxxx
& Hedderwicks
--------------------------------------------------------------------------------
EXECUTED as an agreement.
Each attorney executing this Agreement states that he or she has no notice of
revocation or suspension of his or her power of attorney.
THE BORROWER
--------------------------------------------------------------------------------
SIGNED for and on behalf of FBG TREASURY (USA)
INC. by its attorney.
/s/ XXXXXXX XXXXXXXX
---------------------------------------------------
ATTORNEY'S SIGNATURE
XXXXXXX XXXXXXXX
---------------------------------------------------
PRINT NAME
XXXXXX'X BREWING GROUP LIMITED
--------------------------------------------------------------------------------
SIGNED for and on behalf of XXXXXX'X
BREWING GROUP LIMITED by its attorney.
/s/ XXXXXXX XXXXXXXX
---------------------------------------------------
ATTORNEY'S SIGNATURE
XXXXXXX XXXXXXXX
---------------------------------------------------
PRINT NAME
BRIDGING FACILITY AGREEMENT Xxxxxx Xxxxxxxx
& Hedderwicks
--------------------------------------------------------------------------------
THE PARTICIPANTS
--------------------------------------------------------------------------------
SIGNED for and on behalf of NATIONAL
AUSTRALIA BANK LIMITED by its attorney.
/s/ XXXXX XXXXX
---------------------------------------------------
ATTORNEY'S SIGNATURE
XXXXX XXXXX
---------------------------------------------------
PRINT NAME
SIGNED for and on behalf of BANK OF
AMERICA NATIONAL ASSOCIATION by its
authorised signatory.
/s/ XXXXX XXXXX
---------------------------------------------------
AUTHORISED SIGNATORY
XXXXX XXXXX
---------------------------------------------------
PRINT NAME
SIGNED for and on behalf of
WESTPAC BANKING CORPORATION.
/s/ X.X. XXXXXXXX
----------------------------
SENIOR MANAGER SIGNATURE
XXXXXX XXXXXXXX
----------------------------
PRINT NAME
/s/ XXXXXX X'XXXXXXXXX
----------------------------
COUNSEL SIGNATURE
XXXXXX X'XXXXXXXXX
----------------------------
PRINT NAME
BRIDGING FACILITY AGREEMENT Xxxxxx Xxxxxxxx
& Hedderwicks
--------------------------------------------------------------------------------
SIGNED for and on behalf of
COMMONWEALTH BANK OF AUSTRALIA by its
attorney.
/s/ XXXX XXXXXXXXX
---------------------------------------------------
ATTORNEY'S SIGNATURE
XXXX XXXXXXXXX
---------------------------------------------------
PRINT NAME
SIGNED for and on behalf of AUSTRALIA
AND NEW ZEALAND BANKING GROUP LIMITED
by its attorney.
/s/ XXXXXX X. HORE
---------------------------------------------------
ATTORNEY'S SIGNATURE
XXXXXX X. HORE
---------------------------------------------------
PRINT NAME
SIGNED for and on behalf of UBS AG,
STAMFORD BRANCH by its attorney.
/s/ X. X. XXXXXXX
---------------------------------------------------
ATTORNEY'S SIGNATURE
X. X. XXXXXXX
---------------------------------------------------
PRINT NAME
BRIDGING FACILITY AGREEMENT Xxxxxx Xxxxxxxx
& Hedderwicks
--------------------------------------------------------------------------------
THE AGENT
--------------------------------------------------------------------------------
SIGNED for and on behalf of NATIONAL
AUSTRALIA BANK LIMITED by its attorney.
/s/ XXXXX XXXXX
---------------------------------------------------
ATTORNEY'S SIGNATURE
XXXXX XXXXX
---------------------------------------------------
PRINT NAME
BRIDGING FACILITY AGREEMENT Xxxxxx Xxxxxxxx
& Hedderwicks
--------------------------------------------------------------------------------
ANNEXURE A
DRAWDOWN NOTICE
--------------------------------------------------------------------------------
To: National Australia Bank Limited
BRIDGING FACILITY - DRAWDOWN NOTICE NO[#]
We refer to the Bridging Facility Agreement dated [# 2000] (the FACILITY
AGREEMENT).
Under Clause 6 of the Facility Agreement:
1. we give you irrevocable notice that we wish to draw on [#] (the
DRAWDOWN DATE);
[NOTE: Drawdown Date is to be a Business Day.]
2. the aggregate principal amount to be drawn is US$[#];
[NOTE: Amount is to comply with the limits in Clause 2.]
3. particulars of each Segment of each Facility are as follows:
------------------------------- ----------------------------
PRINCIPAL AMOUNT FUNDING PERIOD
(US$)
[1/2/3/6 month(s)]
------------------------------- ----------------------------
[NOTE: Amounts are to comply with Clause 7 and length of Funding
Periods are to comply with Clause 9.]
--------------------------------------------------------------------------------
4. we confirm that the funds drawn under this Drawdown Notice are for the
purposes set out in Clause 4 of the Facility Agreement.
5. we request that the proceeds of the Segments be remitted to account
number [##] at [##]
BRIDGING FACILITY AGREEMENT Xxxxxx Xxxxxxxx
& Hedderwicks
--------------------------------------------------------------------------------
6. we acknowledge that pursuant to Clause 3.4 of the Trust Deed, the
representations and warranties in Clause 3 of the Trust Deed are
repeated on the date of this notice with respect to the facts and
circumstances then existing.
Definitions in the Facility Agreement apply when used in this Drawdown Notice.
For and on behalf of
FBG TREASURY (USA) INC.
By: [Authorised Officer]
Dated:
BRIDGING FACILITY AGREEMENT Xxxxxx Xxxxxxxx
& Hedderwicks
--------------------------------------------------------------------------------
ANNEXURE B
SELECTION NOTICE
--------------------------------------------------------------------------------
To: National Australia Bank Limited
[#] - SELECTION NOTICE NO [#]
We refer to the Bridging Agreement dated [#] (the FACILITY AGREEMENT).
Under Clause 8 of the Facility Agreement:
1. we give you irrevocable notice that we wish to draw or continue [a
Segment/Segments] on [#] (the SELECTION DATE).
[NOTE: Selection Date is to be a Business Day.]
2. particulars of [each/the] Segment [of each Facility] requested are as
follows:
---------------------- ----------------------- ------------------------
FACILITY PRINCIPAL AMOUNT FUNDING PERIOD
(US$) ------------------------
[1/2/3/6 month(s)]
---------------------- ----------------------- ------------------------
[NOTE: Amounts are to comply with Clause 7 and length of Funding
Periods are to comply with Clause 9.]
3. 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.
Definitions in the Facility Agreement apply when used in this Drawdown Notice.
For and on behalf of
FBG TREASURY (USA) INC.
By: [Authorised Officer]
Dated:
BRIDGING FACILITY AGREEMENT Xxxxxx Xxxxxxxx
& Hedderwicks
--------------------------------------------------------------------------------
ANNEXURE C
VERIFICATION CERTIFICATE
--------------------------------------------------------------------------------
To: National Australia Bank Limited
BRIDGING FACILITY
I [*name] am a [director]/[secretary]/[assistant secretary]+ of Treasury
USA/Xxxxxx'x Brewing Group] (the COMPANY).
I refer to the facility agreement (the FACILITY AGREEMENT) dated [#] between the
Company, [Xxxxxx'x Brewing Group Limited/FBG Treasury (USA) Inc.]+ the banks and
financial institutions named therein as Participants and National Australia Bank
Limited as Agent.
Definitions in the Facility Agreement apply in this Certificate.
I CERTIFY as follows:
1. Attached to this Certificate are true, complete and up to date copies
of each of the following:
(a) the constituent documents of the Company (marked `A');
(b) a power of attorney granted by the Company authorising the
execution on behalf of the Company of the Facility Agreement
(marked `B'). That power of attorney has not been revoked by
the Company and remains in full force and effect; and
(c) extract of minutes of a meeting of the [directors/committee of
directors] of the Company approving execution of the Facility
Agreement, and the power of attorney referred to in paragraph
(b) and appointing Authorised Officers of the Company for the
purposes of the Facility Agreement (marked `C'). Such
resolutions have not been amended, modified or revoked and are
in full force and effect;
2. Attached to this Certificate is a list setting out copies of the true
signatures of the Authorised Officers of the Company who have been
authorised to give notices and communications under or in connection
with the Facility Agreement.
BRIDGING FACILITY AGREEMENT Xxxxxx Xxxxxxxx
& Hedderwicks
--------------------------------------------------------------------------------
Signed:
---------------------------------------------------
[Director/Secretary/Assistant Secretary]+
Dated:
[+ Strike out whichever is not applicable]
BRIDGING FACILITY AGREEMENT Xxxxxx Xxxxxxxx
& Hedderwicks
--------------------------------------------------------------------------------
ANNEXURE D
SUBSTITUTION CERTIFICATE
--------------------------------------------------------------------------------
for a Participation of US$[ ]
relating to the Facility Agreement (the FACILITY AGREEMENT) dated [#] between
FBG Treasury (USA) Inc. (the Borrower) and Xxxxxx'x Brewing Group Limited,
National Australia Bank Limited as Agent and the Participants named in that
agreement
PARTIES
-------------
1. [NAME] (the SUBSTITUTE PARTICIPANT).
2. [NAME] (the RETIRING PARTICIPANT).
3. [NAME] (the AGENT) for itself and on behalf of the other parties
to the Facility Agreement.
--------------------------------------------------------------------------------
IT IS AGREED as follows.
1. DEFINITIONS
--------------------------------------------------------------------------------
1.1 In this Certificate terms defined in the Facility Agreement have the
same meanings and the following definitions apply unless the context
requires otherwise.
SUBSTITUTED PARTICIPATION means US$[ ] of] the Commitment of the
Retiring Participant [and [ % of] any participation in the Principal
Outstanding drawn utilising that Commitment].
SUBSTITUTION DATE means the date of countersignature of this
Certificate by the Agent [or [ ] whichever is the later]. [NOTE: Insert
any other date or dates as appropriate.]
2.2 Clause 1.2 of the Facility Agreement applies to this Certificate.
2. SUBSTITUTION
--------------------------------------------------------------------------------
2.1 RELEASE OF RETIRING PARTICIPANT
The Retiring Participant ceases to be entitled to and bound by its
rights and obligations as a Participant under the Facility Agreement
and Transaction
BRIDGING FACILITY AGREEMENT Xxxxxx Xxxxxxxx
& Hedderwicks
--------------------------------------------------------------------------------
Documents [relating to the Substituted Participation] [NOTE: Insert if
only part of Commitment assumed.] with effect from and including the
Substitution Date, but will remain entitled to and bound by rights and
obligations that accrue up to the Substitution Date.
2.2 ASSUMPTION BY SUBSTITUTE PARTICIPANT
With effect from and including the Substitution Date:
(a) the Substitute Participant and each of the parties to the
Facility Agreement must assume obligations towards each other
and acquire rights against each other that are identical to
the rights and obligations that cease under Clause 2.1, except
insofar as the obligations so assumed and rights so acquired
relate to the identity of or location of the Substitute
Participant and not to the identity of or location of the
Retiring Participant; and
(b) the Substitute Participant will be deemed a party to the
Facility Agreement as a Participant with a Commitment [and
participation in the Principal Outstanding] equal to the
Substituted Participation.
3. INDEPENDENT ASSESSMENT BY SUBSTITUTE PARTICIPANT
--------------------------------------------------------------------------------
Without limiting the generality of Clause 2 the Substitute Participant
agrees as specified in Clause 32.5 and 32.12 of the Facility Agreement
(which applies subject to any agreement to the contrary as if
references in that Clause to the Agent included the Retiring
Participant) and as if references to any Transaction Document included
this Certificate.
4. PAYMENTS
--------------------------------------------------------------------------------
From and including the Substitution Date the Agent must make all
payments due under the Facility Agreement or the Transaction Documents
in relation to the Substituted Participation to the Substitute
Participant. The Retiring Participant and the Substitute Participant
will make directly between themselves those payments and adjustments
which they agree with respect to accrued interest, fees, costs and
other amounts attributable to the Substituted Participation prior to
the Substitution Date.
5. WARRANTY
--------------------------------------------------------------------------------
The Retiring Participant and the Substitute Participant jointly and
severally represent and warrant to the other parties that Clause 31.2
of the Facility Agreement has been complied with in relation to the
Substitute Participant.
6. NOTICES
--------------------------------------------------------------------------------
For the purpose of the Facility Agreement, the Lending Office and
address for correspondence of the Substitute Participant is the address
set out below.
BRIDGING FACILITY AGREEMENT Xxxxxx Xxxxxxxx
& Hedderwicks
--------------------------------------------------------------------------------
7. REGISTRATION FEE
--------------------------------------------------------------------------------
A registration fee of A$1,500 is payable by the Substitute Participant
to the Agent on delivery of this Certificate to the Agent.
8. LAW
--------------------------------------------------------------------------------
This Certificate is governed by the laws of Victoria.
SIGNED by the authorised representative of the parties.
THE RETIRING PARTICIPANT
[Name]
BY:
---------------------------------------------------
SIGNATURE
---------------------------------------------------
PRINT NAME
THE SUBSTITUTE PARTICIPANT
[Name]
BY:
---------------------------------------------------
SIGNATURE
---------------------------------------------------
PRINT NAME
Lending Office and address for correspondence:
[Address for correspondence (if different from Lending Office):]
BRIDGING FACILITY AGREEMENT Xxxxxx Xxxxxxxx
& Hedderwicks
--------------------------------------------------------------------------------
Countersigned by an authorised representative of the Agent for itself and for
the other parties to the Facility Agreement.
THE AGENT
[Name]
BY:
---------------------------------------------------
SIGNATURE
---------------------------------------------------
PRINT NAME
Dated:
