<PAGE>
Exhibit 99(b)(9)
SCHEDULE 1
FACILITY AGREEMENT
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FBG TREASURY (AUST.) LIMITED
FBG TREASURY (UK) PLC
FBG TREASURY (EUROPE) B.V.
FBG TREASURY (NZ) LIMITED
FBG TREASURY (USA) INC.
FOSTER'S BREWING GROUP LIMITED
NATIONAL AUSTRALIA BANK LIMITED
BANK OF NEW ZEALAND
ARTHUR ROBINSON & HEDDERWICKS
Stock Exchange Centre
530 Collins Street
Melbourne 3000 Australia
Tel 61 3 9614 1011
Fax 61 3 9614 4661
(C) Copyright Arthur Robinson & Hedderwicks 2000
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FACILITY AGREEMENT
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TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 2
2. COMMITMENT AND BORROWER LIMITS 9
3. REVIEW 11
4. DRAWDOWN NOTICES 11
5. SELECTION OF FUNDING PERIODS 11
6. REPAYMENT 12
7. PREPAYMENTS 12
8. BILL FACILITY 13
9. MARKET RATE ADVANCE FACILITY 16
10. STERLING ADVANCE FACILITY 17
11. EURO CASH ADVANCE FACILITY 19
12. NZ$ CASH ADVANCE FACILITY 21
13. US$ CASH ADVANCE FACILITY 22
14. LC FACILITY 23
15. REPAYMENT OF PRINCIPAL 26
16. PAYMENTS AND TAXATION 27
17. GST 29
18. CHANGES IN LAW 29
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FACILITY AGREEMENT
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19. CONDITIONS PRECEDENT 31
20. REPRESENTATIONS AND WARRANTIES,
COVENANTS AND EVENTS OF DEFAULT 32
21. SET-OFF 33
22. INDEMNITIES 33
23. CURRENCY INDEMNITY 34
24. CONTROL ACCOUNTS 35
25. INTEREST ON OVERDUE AMOUNTS 35
26. FEES 37
27. ASSIGNMENTS 37
28. NOTICES 38
29. AUTHORISED OFFICERS 39
30. GOVERNING LAW 39
31. COUNTERPARTS 39
32. ACKNOWLEDGMENT BY BORROWERS AND
FOSTER'S BREWING GROUP 39
33. ATTORNEYS 40
Schedule 1 42
Lending Offices 42
Schedule 2 43
Additional domestic Sterling
costs 43
Annexure A 45
Drawdown Notice [National
Australia Bank Limited] 45
Annexure B 48
Form of Letter of Credit
-[National Australia Bank
Limited/BNZ] 48
Annexure C 50
Drawdown Notice [BNZ] 50
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FACILITY AGREEMENT
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DATE 27 February 1991
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PARTIES
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1. FBG TREASURY (AUST.) LIMITED (ACN 006 865 738) of 77 Southbank
Boulevard, Southbank, Victoria (TREASURY AUST.).
2. FBG TREASURY (UK) PLC of Montrose House Chertsey Boulevard,
Hanworth Lane, Chertsey, Surrey KT169JX (TREASURY UK).
3. FBG TREASURY (EUROPE) B.V. of Strawinskylaan 3127, 1077 ZX
Amsterdam, The Netherlands (TREASURY EUROPE).
4. FBG TREASURY (NZ) LIMITED of Level 1, Elder's House, 60 Khyber
Pass Road, Grafton, Auckland, New Zealand (TREASURY NZ).
5. FBG TREASURY (USA) INC., of Suite 200, 103 Foulk Road,
Wilmington, Delaware USA (TREASURY USA).
6. FOSTER'S BREWING GROUP LIMITED (ACN 007 620 886) incorporated
in South Australia of 77 Southbank Boulevard, Southbank,
Victoria (FOSTER'S BREWING GROUP)
7. NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937) of 271
Collins Street, Melbourne, Victoria (the LENDER ).
8. BANK OF NEW ZEALAND of Level 6, BNZ Tower, 125 Queens Street,
Auckland, New Zealand (BNZ).
RECITALS
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A Each Borrower and Foster's Brewing Group has requested the
Lender and BNZ to provide the Borrowers with a facility under
which financial accommodation of up to an aggregate maximum
amount of the sum of A$300,000,000 may be made available to
the Borrowers.
B Each Borrower and Foster's Brewing Group is party to the FBG
Group Financing Trust Deed (the TRUST DEED) dated 21 February
1993 which will, when the Facility provided under this
Agreement becomes an Approved Facility under the Trust Deed,
set out certain of the terms and conditions which apply to any
financial accommodation which may be made available to the
Borrowers under this Agreement.
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FACILITY AGREEMENT
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IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
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1.1 DEFINITIONS
When used in this Agreement the following terms shall have the following
meanings unless the context otherwise requires.
A$ OR AUSTRALIAN DOLLAR means the lawful currency of Australia.
AUSTRALIAN LENDING OFFICE means the office of the Lender so designated in
the First Schedule or such other branch, office or agency as it may
designate for the purposes of this Agreement by notice to Foster's Brewing
Group.
AUSTRALIAN WITHHOLDING TAX means Tax levied or imposed by a Governmental
Agency of or within the Commonwealth of Australia required to be withheld
or deducted from any payment.
AVAILABILITY PERIOD means the period commencing on the date of this
Agreement and expiring on the Repayment Date or, if earlier, the date on
which the Commitment is cancelled.
BANK BILL RATE in relation to a Funding Period means:
(a) the rate determined by the Lender to be the average bid rate
(rounded up, if necessary, to the nearest two decimal places)
displayed at or about 10.30am on the first day of that Funding
Period on the Reuters screen BBSY page for a term equivalent
to the Funding Period; or
(b) if:
(i) for any reason there is no rate displayed for a
period equivalent to that Funding Period; or
(ii) the basis on which that rate is displayed is changed
and in the opinion of the Lender that rate ceases to
reflect the Lender's cost of funding to the same
extent as at the date of this Agreement,
then the Bank Bill Rate will be the rate determined by the Lender to
be the average of the buying rates quoted to the Lender by each of
three Australian banks selected by the Lender at or about that time
on that date for bills of exchange which are accepted by an
Australian bank selected by the Lender and which have a term
equivalent to the Funding Period. If there are no buying rates the
rates will be the rate determined by the Lender to be its cost of
funds.
BENEFICIARY means the beneficiary of a Letter of Credit.
BNZ LENDING OFFICE means the office of BNZ so designated in the First
Schedule or such other branch, office or agency as it may designate for
the purposes of this Agreement by notice to Foster's Brewing Group.
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FACILITY AGREEMENT
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BILL means a "Bill of Exchange" as defined in the Bills of Exchange Act
1909 which is, or is to be, accepted or accepted and discounted under this
Agreement.
BILL FACILITY means the facility provided under Clause 8.
BORROWER means Treasury Aust., Treasury UK, Treasury Europe, Treasury NZ
or Treasury USA.
BORROWER LIMIT means at any time in relation to each Facility (and, in the
case of the LC Facility, each Borrower), such amount in Australian dollars
as Foster's Brewing Group, the Lender and BNZ may from time to time agree.
BUSINESS DAY means a day on which:
(a) for the determination of Funding Periods and interest rates or
yields, banks and the relevant financial markets are open:
(i) in relation to the Bill Facility or the Market Rate
Advance Facility, in Sydney and Melbourne;
(ii) in relation to the Sterling Advance Facility, in
London, Sydney and Melbourne;
(iii) in relation to the Euro Cash Advance Facility, in
Amsterdam and the location of the Lender;
(iv) in relation to the NZ$ Cash Advance Facility, in
Auckland , Sydney and Melbourne;
(v) in relation to the US$ Cash Advance Facility, Sydney,
Melbourne and New York; and
(vi) in relation to the LC Facility, Sydney and Melbourne
and if it relates to a Letter of Credit in Sterling,
London or if it relates to a Letter of Credit in US
Dollars, New York or if it relates to a Letter of
Credit in Euros, Amsterdam and the location of the
Lender or if it relates to a Letter of Credit in NZ
dollars, Auckland;
(b) in relation to the determination of an Exchange Rate or an
Equivalent Amount, banks and the relevant financial markets
are open for business in Melbourne and Sydney and in relation
to Sterling, London, or in relation to US Dollars, New York or
in relation to Euros, Amsterdam and the location of the
Lender, or in relation to NZ dollars, Auckland; or
(c) for any other purpose, banks are open for business in Sydney
and Melbourne.
COMMITMENT means A$300,000,000 as reduced or cancelled under this
Agreement.
CURRENT DOLLAR VALUE means on any day, in relation to a Segment or part of
a Segment of:
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FACILITY AGREEMENT
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(a) (i) the Sterling Advance Facility, the Euro Cash Advance
Facility, the NZ$ Cash Advance Facility or the US$
Cash Advance Facility the principal amount of that
Segment or part; or
(ii) the LC Facility, the aggregate face amount (in the
applicable currency) of the Letters of Credit issued
in respect of such Segment or part,
as at that day, converted (except where the relevant Letter of
Credit is denominated in Australian dollars) to Australian
dollars on that day at the Exchange Rate applicable to that
day; and
(b) the Bill Facility or the Market Rate Advance Facility, the
Australian dollar face amount or principal amount of that
Segment or part as at that day.
DRAWDOWN DATE means:
(a) in relation to the Sterling Advance Facility, the Euro Cash
Advance Facility, the NZ$ Cash Advance Facility, the US$ Cash
Advance Facility and the Market Rate Advance Facility, the
date on which any advance under this Agreement is or is to be
drawn;
(b) in relation to the LC Facility, the date on which any Letter
of Credit is or is to be issued; and
(c) in relation to the Bill Facility, the date on which any Bills
are or are to be accepted or accepted and discounted in
accordance with this Agreement,
DRAWDOWN NOTICE means a notice given or to be given in accordance with
Clause 4.
EQUIVALENT AMOUNT means, with respect to any currency on any date, the
amount of such currency converted from Australian dollars at the Exchange
Rate 2 Business Days before such date.
EURO and EUR each mean the lawful currency of the member states of the
European Union that adopt the single currency in accordance with the
Treaty establishing the European Community, as amended by the Treaty on
European Union.
EURO CASH ADVANCE FACILITY means the facility provided under Clause 11.
EURO LIBOR means in relation to a Funding Period of a Segment under the
Euro Cash Advance Facility:
(a) the rate (rounded upwards if necessary to 3 decimal places)
displayed as the EUR rate on the Reuters screen page LIBOR01
for a term equivalent to that Funding Period for the value
date which is the first day of that Funding Period;
(b) where in the opinion of the Lender there is no or is
no longer a Reuters screen page appropriate for the
Euro for that Funding Period, the Lender may specify
another publicly available page and the rate will be
determined from that page in the same manner; or
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FACILITY AGREEMENT
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(c) if:
(i) for any reason there are no rates displayed for a
term equivalent to that Funding Period for the Euro;
or
(ii) the basis on which those rates are displayed is
changed and in the opinion of the Lender those rates
cease to reflect the Lender's cost of funding to the
same extent as at the date of this Agreement,
then Euro Libor will be the rate determined by the Lender to
be the arithmetic mean of the rates quoted to it by four
leading banks selected by it in the Euro-zone interbank market
or the London interbank market at or about 11.00am (Brussels
time) two Business Days before that Funding Period for the
making of Euro deposits with the Lender for a term comparable
to that Funding Period.
EURO-ZONE means the region comprised of the participating member states
in the European Economic and Monetary Union.
EXCHANGE RATE means :
(a) with respect to a currency other than NZ dollars on any date,
the Lender's spot, or in the case of NZ dollars, BNZ's rate of
exchange as at 10.00am (Melbourne time) on that date for the
purchase of such currency against Australian dollars or, as
the case may be, Australian dollars against such currency on
the relevant foreign exchange market for value on the second
Business Day after such date; and
(b) [with respect to NZ dollars on any date, BNZ's spot rate of
exchange as at 10.00am (Auckland time) on that date for the
purchase of NZ dollars against Australian dollars or, as the
case may be, Australian dollars against NZ dollars on the
relevant foreign exchange market for value on the second
Business Day after such date. ]
EXCLUDED TAX means any Tax imposed by any jurisdiction on the net
income of the Lender as a consequence of the Lender or BNZ, being a
resident of or organised or doing business in that jurisdiction but not
any Tax:
(a) which is calculated on or by reference to the gross amount of
any payments (without the allowance of any deduction) derived
under any Relevant Document or any other document referred to
in any Relevant Document by the Lender or BNZ, as the case may
be; or
(b) which is imposed as a result of the Lender or BNZ, as the case
maybe being considered a resident of or organised or doing
business in that jurisdiction solely as a result of it being a
party to any Relevant Document or any transaction contemplated
by any Relevant Document.
FACILITY means the Bill Facility, the Sterling Advance Facility, the
Market Rate Advance Facility, the Euro Cash Advance Facility, the NZ$
Cash Advance Facility, the US$ Cash Advance Facility or the LC
Facility.
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FACILITY AGREEMENT
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FEE LETTER means any letter from the Lender or BNZ to Foster's Brewing
Group referred to in Clause 26.
FUNDING PERIOD means in relation to a Segment of:
(a) the Bill Facility, the term of the relevant Bills;
(b) the Sterling Advance Facility, the Market Rate Advance
Facility, the NZ$ Cash Advance Facility, the US$ Cash Advance
Facility or the Euro Cash Advance Facility, a period for the
fixing of interest rates for, and the funding of, such
Segment; and
(c) the LC Facility, the term of the Letters of Credit comprising
such Segment,
such period to commence on the Drawdown Date of that Segment and have a
duration selected under Clause 5.
GST has the meaning given in section 195-1 of the A NEW TAX SYSTEM
(GOODS AND SERVICES TAX) ACT 1999.
LC FACILITY means the facility provided under Clause 14.
LENDING OFFICE means the Australian Lending Office, the UK Lending
Office or the US Lending Office of the Lender.
LETTER OF CREDIT means an irrevocable letter of credit issued under
Clause 14.1.
LIBOR in relation to a Funding Period for a Segment of the Sterling
Advance Facility or the US$ Cash Advance Facility, means the rate
determined by the Lender to be the offered rate quoted to the Lender by
leading banks in the London Interbank Market at or about 11.00am
(London time) two Business Days before the commencement of that Funding
Period (or, in the case of domestic sterling, at or about 11.00am
(London time) on the day on which the Funding Period commences) for the
making of deposits in the currency of that Segment with the Lender for
a period comparable to that Funding Period.
MARGIN means, in respect of a Segment utilising a Facility, the amount
per cent per annum set out in the relevant Fee Letter for that
Facility.
MARKET RATE ADVANCE FACILITY means the facility provided under Clause
9.
NZ BANK BILL RATE in relation to a Funding Period means:
(a) the rate determined by BNZ to be the average bid rate (rounded
up, if necessary, to the nearest four decimal places)
displayed at or about 10:45am (Auckland time) on the first day
of that Funding Period on the Reuters screen BKBM page for a
term equivalent to the Funding Period; or
(b) if for any reason there is no rate displayed for a period
equivalent to that Funding Period, then the NZ Bank Bill Rate
will be the rate determined by BNZ to be the average of the
buying rates quoted to BNZ by each of three New Zealand banks
selected by BNZ at or about that time on that date for bills
of exchange that are accepted by a New Zealand bank selected
by BNZ and that have a term
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equivalent to the Funding Period. If there are no buying rates
the rate will be the rate determined by BNZ to be its average
cost of funds in relation to the NZ$ Cash Advance Facility.
Rates will be expressed as a yield per annum to maturity.
NZ$ CASH ADVANCE FACILITY means the facility provided under Clause 12.
NZ$ OR NZ DOLLARS means the lawful currency of New Zealand.
ORIGINAL DOLLAR AMOUNT means in relation to a Segment or part of a
Segment on the Drawdown Date of that Segment of:
(a) (i) the Sterling Advance Facility, the Euro Cash Advance
Facility, the NZ$ Cash Advance Facility and the US$
Cash Advance Facility, the principal amount of the
Segment or part; or
(i) the LC Facility, the aggregate face amount (in the
applicable currency) of the Letters of Credit issued
in respect of such Segment or part,
as nominated in the applicable Drawdown Notice, converted
(except where the relevant Letter of Credit is denominated in
Australian dollars) to Australian dollars on the applicable
Drawdown Date at the Exchange Rate for that Drawdown Date; and
(b) the Bill Facility or the Market Rate Advance Facility, the
Australian dollar face amount or principal amount of that
Segment or part, as nominated in the applicable Drawdown
Notice,
reduced as may be appropriate from time to time by prepayments and/or
repayments of such Segment or part (including, without limitation, a
repayment under Clause 15.1(a)).
PRINCIPAL OUTSTANDING means the aggregate principal amount of all
outstanding Segments.
REPAYMENT DATE means 31 December 2004 or such later date as the parties
may agree.
SAME DAY FUNDS means:
(a) in the case of Australian dollars, a bank cheque or other
immediately available funds;
(b) in the case of Sterling and NZ dollars, in immediately
available funds; or
(c) in the case of Euros or US dollars, the manner of payment in
Euros or US dollars (as applicable) which the Lender specifies
from time to time to the relevant Borrower as being customary
at the time for settlement of transactions of the type
contemplated by this Agreement in immediately available funds
or, if no manner is specified, immediately available funds in
Euros or US Dollars (as applicable).
SECURED FINANCING means accommodation provided to a Borrower by a
Beneficiary on the security of a Letter of Credit.
<PAGE>
SEGMENT means each portion of the amount advanced or provided or, as the
context may require, to be advanced or provided, to a Borrower under the
same Facility which is denominated in the same currency and has the same
Funding Period.
STANDARD TERMS means the agreement so entitled dated 27 February 1991
between, among others, the Borrowers, Foster's Brewing Group and the
Lender as amended or supplemented from time to time.
STERLING means the lawful currency of England, Scotland and Wales.
STERLING ADVANCE FACILITY means the facility provided under Clause 10.
TRUST DEED means the FBG Group Financing Trust Deed dated 21 February 1993
between, among others the Borrowers, Foster's Brewing Group and the
Trustee.
TRUSTEE means AXA Trustees Limited or any other person appointed as
trustee under the Trust Deed.
UK LENDING OFFICE means the office of the Lender so designated in the
First Schedule or such other branch, office or agency as it may designate
for the purposes of this Agreement by notice to Foster's Brewing Group.
UNDRAWN COMMITMENT means the Commitment less the aggregate of the
Current Dollar Value of all outstanding Segments.
US DOLLARS means the lawful currency of the United States of America.
US $ CASH ADVANCE FACILITY means the facility provided under Clause 13.
US LENDING OFFICE means the office of the Lender so designated in the
First Schedule or such other branch, office or agency as it may designate
for the purposes of this Agreement by notice to Foster's Brewing Group.
1.2 INTERPRETATION
(a) Clauses 1.2, 1.3, 1.4 and 1.5 of the Trust Deed apply to this
Agreement as if incorporated in this Agreement except that all
references in those clauses to "Deed" and "Trustee" are
replaced with "Agreement" and "Lender" (or "BNZ" as the
context requires) respectively.
(b) Except to the extent that this Agreement otherwise provides or
the context otherwise requires, references in this Agreement
to time are to Melbourne time.
(c) Unless defined otherwise in this Agreement, terms defined in
the Trust Deed bear the same meaning when used in this
Agreement.
1.3 TRUST DEED
Each party to this Agreement acknowledges and agrees that the financial
accommodation made available or to be made available to the Borrowers by
the Lender and BNZ under this Agreement is and shall be made available on
the terms and conditions contained in the Trust Deed in addition to the
terms and conditions of this Agreement.
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1.4 REPAYMENT AND PREPAYMENT
In this Agreement references to "payable", "repayment" or "prepayment"
(and like expressions) of:
(a) all or part of a Segment of the LC Facility means payment to
the Lender in the relevant currency, or BNZ, in the case of NZ
dollars, of the whole or the relevant portion (determined,
where applicable, in accordance with paragraph (b)) of the
face amount of the relevant Letter of Credit or the reduction,
expiry or cancellation of that Letter of Credit (if it has not
been drawn upon) if such reduction, expiry or cancellation
takes place on the due date for repayment or prepayment;
(b) all or part of a Segment of the Bill Facility means payment to
the Lender of the total face amount of all Bills comprising
the Segment or part;
(c) all or part of the NZ$ Cash Advance Facility means payment to
BNZ in NZ dollars;
(d) all or part of a Segment of the US$ Cash Advance Facility
means payment to the Lender in US dollars;
(e) all or part of a Segment of the Sterling Advance Facility
means payment to the Lender in Sterling; and
(f) all or part of a Segment of the Euro Cash Advance Facility
means payment to the Lender in Euros.
1.5 PRINCIPAL
References to "principal" or "principal amount" mean, in relation to a
Segment of:
(a) the Bill Facility, the aggregate face amount of all Bills
comprising that Segment or part;
(b) the Sterling Advance Facility, the Market Rate Advance
Facility, the NZ$ Cash Advance Facility the US$ Cash Advance
Facility or the Euro Cash Advance Facility, the principal
amount of that Segment or part; and
(c) the LC Facility, the aggregate maximum amount paid or
claimable (actually or contingently) under all Letters of
Credit comprising that Segment or part.
2. COMMITMENT AND BORROWER LIMITS
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2.1 COMMITMENT
(a) Subject to this Agreement:
(i) the Lender shall make:
(A) the Bill Facility and the Market Rate
Advance Facility available to Treasury Aust.
only;
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(B) the Sterling Advance Facility to Treasury UK
only;
(C) the US$ Cash Advance Facility available to
Treasury USA only;
(D) the Euro Cash Advance Facility available to
Treasury Europe only; and
(E) the LC Facility available to any Borrower
except Treasury NZ; and
(ii) BNZ shall make the NZ$ Cash Advance Facility and the
LC Facility available to Treasury NZ only;
but so that on the date of a drawing of any Segment the
aggregate Current Dollar Value of all outstanding Segments of
Facilities on that date immediately after that drawing would
not exceed the Commitment.
(b) Unless otherwise agreed by the Lender, the aggregate Current
Dollar Value of all outstanding Segments of:
(i) the Sterling Advance Facility shall not at any time
exceed A$250,000,000; and
(ii) the LC Facility shall not at any time exceed
A$250,000,000
or such other limit as the parties may agree.
2.2 BORROWER LIMITS
(a) (BORROWER LIMITS): No Borrower may request, in any Drawdown
Notice, a Segment or Segments of any Facility if, on the
relevant Drawdown Date, the aggregate of:
(i) the Current Dollar Value of the Principal Outstanding
of all Segments of that Facility (other than any
Segment which is required to be repaid on or before
the relevant Drawdown Date); and
(ii) the Original Dollar Amount of the principal amount of
all Segments of that Facility requested to be
provided on account of that Borrower by the Lender
and BNZ,
exceeds that Borrower's Borrower Limit with respect to that
Facility.
(b) (SPECIFICATION OF BORROWER LIMITS): The Borrower Limits of each
Borrower shall be as agreed between Foster's Brewing Group and the
Lender from time to time provided that:
(i) in relation to any Facility, a Borrower Limit shall not be
less than the greatest aggregate principal amount of all
Segments of that Facility provided by the Lender, and BNZ, for
the account of that Borrower, outstanding at any time; and
(ii) a Borrower Limit, shall not, which when aggregated with the
Borrower Limits of each other Borrower, exceed the Commitment.
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2.3 CANCELLATION ON REPAYMENT DATE
At the close of business (Melbourne time) on the last day of the
Availability Period the Commitment shall be cancelled.
2.4 CANCELLATION - ELECTION BY BORROWERS
Foster's Brewing Group may from time to time on giving not less than 7
days prior irrevocable notice to the Lender cancel all or part of the
Undrawn Commitment. If part, unless the Lender otherwise agrees, such part
shall be a minimum of A$10,000,000 and an integral multiple of
A$10,000,000.
3. REVIEW
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The Lender may, in its absolute discretion, agree to extend the Repayment
Date.
4. DRAWDOWN NOTICES
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Whenever a Borrower wishes to make a drawing under the Bill Facility, the
Sterling Advance Facility, or the LC Facility, it or Foster's Brewing
Group on its behalf shall give to the Lender or BNZ, if applicable, a
Drawdown Notice substantially in the form of Annexure A or Annexure C, as
the case may be, to be received by the Lender or BNZ, as the case may be,
not later than 11.00am (Melbourne time) five Business Days (or such period
as otherwise agreed between the relevant Borrower and the Lender or BNZ,
as applicable) prior to the proposed Drawdown Date (which shall be a
Business Day), which Drawdown Notice shall be irrevocable.
Whenever a Borrower wishes to make a drawing under the Market Rate Advance
Facility, the Euro Cash Advance Facility, the NZ$ Cash Advance Facility or
the US$ Cash Advance Facility, it is to be made in accordance with clause
9.2, 11.2, 12.2 or 13.2 respectively.
5. SELECTION OF FUNDING PERIODS
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(a) Subject to the subsequent provisions in this Clause and to
Clause 9.2(c), Funding Periods selected by a Borrower shall be
of a period not longer than 185 days or, if required, such
other period as the Lender or BNZ, as the case may be, may
agree to enable consolidation of Segments of the same Facility
and currency.
(b) Should a Funding Period end on a day which is not a Business
Day, such Funding Period shall be extended to the next
Business Day in the same calendar month or, if none, the
preceding Business Day.
(c) No Funding Period shall extend beyond the Repayment Date.
(d) If a Borrower fails to select Funding Periods complying with
this Clause the Lender or BNZ, as the case may be, may vary
any Drawdown Notice to ensure compliance.
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6. REPAYMENT
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6.1 REPAYMENT
Subject to Clause 6.2, each Borrower shall repay the Principal Outstanding
of each Segment provided on its account in the currency in which such
Segment is denominated on the last day of its Funding Period.
6.2 NETTING OFF
If a Borrower requests a new Segment of the Sterling Advance Facility, the
Euro Cash Advance Facility, the NZ$ Cash Advance Facility, the US$ Cash
Advance Facility or the Market Rate Advance Facility or a Segment of the
Bill Facility comprising Bills which are to be discounted by the Lender on
the last day of a Funding Period of an old Segment of the same Facility
(in the same currency), then only the net amount between:
(a) the funds required to be provided by the Lender or BNZ, as the
case may be, for the account of that Borrower in relation to
that new Segment; and
(b) the funds payable by that Borrower for the account of the
Lender or BNZ, as applicable by way of repayment of the old
Segment,
need be paid or made available, as the case may be.
6.3 FINAL REPAYMENT
On the Repayment Date each Borrower shall repay in full the Principal
Outstanding of each Segment provided on its account in the currency in
which such Segment is denominated together with all accrued interest or
other moneys owing to the Lender or BNZ, as the case may be, under this
Agreement.
7. PREPAYMENTS
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7.1 SPECIAL PREPAYMENTS
Each of the Borrowers and Foster's Brewing Group acknowledge that the
Borrowers may be required to prepay the Facility in accordance with Clause
5.5 of the Trust Deed and that the Lender and BNZ have entered into this
Agreement and made the Facilities available to the Borrowers in reliance
on Clause 5.5 of the Trust Deed.
7.2 LIMITATION ON PREPAYMENTS
No Borrower may prepay all or any part of the Principal Outstanding
except in accordance with this Agreement.
7.3 INTEREST
Each Borrower shall pay any interest accrued on any amount prepaid under
this Agreement at the time of such prepayment.
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7.4 CASH COVER
(a) If a Borrower prepays all or part of a Segment of the LC
Facility or the Bill Facility by payment to the Lender or BNZ,
as the case may be, in the relevant currency of an amount
equal to the whole or the relevant portion of the face amount
of the relevant Letter of Credit or the whole or the relevant
portion of the total face amount of all Bills comprising the
Segment or part then that amount shall be held by the Lender
or BNZ, as applicable, by way of cash cover for the Lender's
or BNZ's relevant liability (contingent or otherwise) in
respect of the relevant Letter of Credit or Bills to be
applied by the Lender or BNZ, as applicable, in reduction of
the relevant liability at any time after it has become due and
payable and the provisions of Clause 5.3(c) of the Trust Deed
and, if such prepayment is made under Clause 7.1, Clause
5.3(d) (e) and (f) of the Trust Deed, shall apply to such
amount as if, in the case of Clause 5.3, the reference to
"this Deed including, without limitation, under paragraph (a)
or (b) of this Clause" were a reference to this Clause 7.
(b) Unless under paragraph (a) the provisions of Clause 5.3(d) (e)
and (f) of the Trust Deed apply to any amount of cash cover
provided under paragraph (a) in respect of a Segment, the
Lender or BNZ, as the case may be, shall repay the amount by
which that amount of cash cover (together with interest on
that amount) exceeds the total amount paid or payable by the
Lender or BNZ, as applicable, under the Bills or Letters of
Credit comprising such Segment, to the relevant Borrower on
the last day of the Funding Period for that Segment.
8. BILL FACILITY
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8.1 COMMITMENT
(a) Subject to this Agreement, the Lender shall accept, or accept
and discount, Bills drawn by Treasury Aust. expressed to
mature not later than the repayment Date.
(b) The principal amount of each Segment of the Bill Facility
shall be:
(i) a minimum of A$10,000,000;
(ii) the Undrawn Commitment, or
(iii) such other amount as the Lender may agree;
and shall not cause a breach of the limits in Clause 2.
8.2 REQUIREMENT OF BILLS
Each Bill shall be in a form acceptable to the Lender and shall be
prepared in accordance with the following:
(a) each Bill shall be drawn by Treasury Aust. and signed by an
Authorised Officer of Treasury Aust. or, if Treasury Aust. so
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requests, by an Authorised Officer of the Lender on behalf of
Treasury Aust.;
(b) each Bill shall be expressed to be payable at such office of
the Lender as the Lender shall notify Treasury Aust. from time
to time;
(c) the face amount of each Bill shall to the extent possible be
A$500,000, A$1,000,000 or A$5,000,000 or such other amount as
the Lender and Treasury Aust. may agree;
(d) the term of each Bill shall be the Funding Period of the
relevant Segment;
(e) each Bill shall be:
(i) (where the Lender is requested to deliver the Bill to
Treasury Aust. or another specified person after
acceptance) payable to Treasury Aust. and endorsed by
Treasury Aust. or payable to the proposed purchaser;
(ii) (where the Lender is requested and has agreed to
purchase the Bill) payable to the Lender; or
(iii) (where the Lender is requested and has agreed to
arrange the sale of the Bill as agent for Treasury
Aust. or is requested to discount the Bill) completed
so that the space reserved for the name of the payee
is left blank; and
(f) if necessary, Treasury Aust. shall cause each Bill to be
stamped with any applicable stamp duty.
8.3 AUTHORITY
Treasury Aust. authorises the Lender, upon receipt by the Lender of a
Drawdown Notice requesting a drawing under the Bill Facility, to prepare,
sign (by its Authorised Officer) as drawer, complete and deliver Bills in
accordance with this Clause 8 and to alter any non-complying Bills
delivered if:
(a) Treasury Aust. fails to deliver or prepare Bills in accordance
with this Agreement; or
(b) Treasury Aust. requests the Lender so to do in the relevant
Drawdown Notice.
8.4 ACCEPTANCE
(a) The Lender shall on each day that it is requested to accept
Bills under this Clause:
(i) accept the Bills;
(ii) if authorised to do so in the relevant Drawdown
Notice, insert as payee itself or such other person
who is to purchase those Bills; and
(iii) hand the Bills to the person nominated in the
Drawdown Notice or, if the Lender has agreed to do
so, purchase or
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arrange the sale of the Bills as requested in the
Drawdown Notice.
(b) Treasury Aust. shall on that day pay to the Lender an
acceptance fee equal to the Margin, to be calculated on a
daily basis on the face amount of each Bill from the date it
was accepted to the date it falls due for payment.
8.5 ACCEPTANCE AND DISCOUNT
The Lender shall on each day that it is requested to accept and discount
Bills under this Clause:
(a) accept the Bills;
(b) insert as payee itself or such other person who is to purchase
those Bills; and
(c) discount those Bills and (subject to clause 6) pay in Same Day
Funds no later than 11.00am on the relevant Drawdown Date to
the Borrower an amount equal to the aggregate of the face
amount of each Bill less the aggregate of:
(i) a discount amount for each Bill which would result in
a yield to maturity on that Bill calculated at the
Bank Bill Rate for the relevant Funding Period;
(ii) an acceptance fee equal to the Margin on that day, to
be calculated on a daily basis on the face amount of
each Bill from the date it was accepted to the date
it falls due for payment;
(iii) any applicable stamp duty or other documentary or
transaction Tax (including, without limitation,
financial institutions duty) payable by the Lender on
or in respect of each Bill or any payment, receipt or
crediting of an account which is contemplated by this
Clause 8;
(iv) any other amount owing by the Borrower to the Lender
under this Agreement but unpaid.
8.6 INDEMNITY
Treasury Aust. shall indemnify and keep indemnified the Lender against all
liabilities of the Lender as acceptor of any Bills but, without prejudice
to the obligation to provide cash cover under Clause 8.7, Treasury Aust.
shall not be required to pay any amounts in excess of the total face
amount of the relevant Bills to the extent such liabilities were incurred
as a result of the fraud or wilful default of the Lender.
8.7 CASH COVER
As between the Lender and Treasury Aust., Treasury Aust. shall be
primarily liable in respect of all Bills and accordingly:
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(a) the liability of Treasury Aust. with respect to any Bill shall
not be taken to have been discharged by reason of the Lender
becoming the holder of that Bill before, on or after its
maturity; and
(b) subject to Clause 6.2, Treasury Aust. shall, not later than
11.00am on each day on which a Bill accepted on its account
falls due for payment, pay to the Lender an amount equal to
the face amount of such Bill.
9. MARKET RATE ADVANCE FACILITY
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9.1 REQUIREMENTS FOR MARKET RATE ADVANCES
Any Drawing or proposed Drawing under the Market Rate Advance Facility
(including any rollover Drawing under Clause 9.6) shall be subject to
Clause 19.1.
9.2 REQUEST FOR MARKET RATE ADVANCE
Treasury Aust. may request a drawing of a Segment of the Market Rate
Advance Facility by an Authorised Officer of the Borrower giving to the
Lender telephone notice of such request not later than 11.00am on the
proposed Drawdown Date (which request shall be irrevocable and shall be
confirmed on that date by the delivery to the Lender of a notice
confirming the same) which telephone notice shall specify:
(a) the proposed Drawdown Date;
(b) the amount of the Segment, which shall be in a minimum amount
of A$1,000,000 or in multiples of A$100,000 above that amount;
(c) the Funding Period therefor, which shall be not more than 14
days;
(d) the account into which the proposed Segment is to be paid; and
(e) whether the proposed drawing is a rollover of an existing
Segment of the Market Rate Advance Facility.
The Lender may rely and act upon any such request given by a person
purporting to be an Authorised Officer of the Borrower (whether or not
that person is an Authorised Officer), and is fully indemnified by the
Borrower against any loss, liability, claim or expense it may incur as a
result of so acting (other than any such loss, liability, claim or expense
which is incurred solely as a result of the Lender's fraud or wilful
default).
9.3 PROVISION OF MARKET RATE ADVANCE
FACILITY
Subject to the provisions of this Agreement and to the Lender's usual
terms and conditions applicable to its customers for like facilities, the
Lender shall use its best endeavours to make available the Segment of the
Market Rate Advance Facility to Treasury Aust. on the Drawdown Date.
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9.4 INTEREST
(a) Treasury Aust. agrees to pay to the Lender interest on each
Segment of the Market Rate Advance Facility from and including
its Drawdown Date until that Segment is paid in full. Interest
is calculated from the Drawdown Date until the last day of the
Funding Period. Interest accrues from day to day and is
calculated on actual days elapsed and a 365 day year or a 366
day year (as the case may be).
(b) The rate of interest payable on a Segment of the Market Rate
Advance Facility, shall be the rate which the Lender notifies
by telephone to Treasury Aust. or Foster's Brewing Group on
its behalf on the Drawdown Date and shall be confirmed in
writing as the rate at which the Lender lends comparable
amounts to similar customers in the market and for a
comparable duration.
(c) Treasury Aust. shall pay to the Lender all accrued interest on
the last day of the Funding Period relevant to the Market Rate
Advance.
9.5 REPAYMENT
Subject to Clause 9.6, Treasury Aust. shall repay to the Lender each
Segment of the Market Rate Advance Facility in full on the last day of
the Funding Period relating thereto.
9.6 ROLLOVER OF SEGMENTS
If on the last day of the Funding Period applicable to a Segment of the
Market Rate Advance Facility:
(a) Treasury Aust. has paid to the Lender all accrued interest on
the Segment on that day;
(b) Treasury Aust. has given notice to the Lender in accordance
with Clause 9.2; and
(c) the aggregate period in respect of which the indebtedness
evidenced or established by the Segment has been rolled over
does not (and would not after a request made under Clause 9.6)
exceed 30 days in total,
the Lender agrees, subject to the provisions of this Agreement, to
rollover the maturing Segment of the Market Rate Advance Facility by
allowing the Segment to remain outstanding for a further period with a
resetting of interest rate under Clause 9.4.
10. STERLING ADVANCE FACILITY
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10.1 CURRENCY
The Sterling Advance Facility may only be drawn by Treasury UK and in
Sterling.
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10.2 ADVANCE OF SEGMENT
(a) Subject to this Agreement, whenever Treasury UK requests a
Segment utilising the Sterling Advance Facility under a
Drawdown Notice, the Lender will through its UK Lending Office
make available that Segment to the account specified in the
relevant Drawdown Notice not later than 11.00am (local time in
the place of payment) on the relevant Drawdown Date in the
same day funds in Sterling.
(b) The principal amount of each Segment drawn under the Sterling
Advance Facility shall be a minimum of:
(i) the Equivalent Amount in Sterling of A$10,000,000 and
an integral multiple of the Equivalent Amount in
Sterling of A$10,000,000; or
(ii) the Undrawn Commitment,
and shall not cause a breach of the limits in Clause 2.
10.3 NOTIFICATION OF RATES AND AMOUNTS
The Lender shall notify Treasury UK of the Exchange Rate, interest rates
and amounts of currency determined under this Clause as soon as they are
ascertained.
10.4 INTEREST RATE
Interest shall accrue from day to day on each Segment of the Advance
Facility for each Funding Period at the rate per annum determined by the
Lender to be the aggregate of the Margin and LIBOR for such Funding
Period.
10.5 BASIS OF CALCULATION OF INTEREST
Such interest shall be computed on the basis of the actual number of days
elapsed and a year of 365 or 366 days (as the case may be).
10.6 PAYMENT OF INTEREST
Except where this Agreement provides otherwise, Treasury UK shall pay such
accrued interest in Sterling on the last day of the relevant Funding
Period.
10.7 MARKET DISTURBANCE - SUSPENSION
NOTICE
Whenever, prior to the commencement of a Funding Period of a Segment of
the Sterling Advance Facility the Lender determines that, by reason of any
change in or in the application of any applicable law or of any change in
national or international financial, political or economic conditions,
exchange rates or exchange controls, it is impracticable for it to fund
such Segment in Sterling during such Funding Period by deposits obtained
in the relevant interbank market, then the Lender shall promptly give
notice (a "Suspension Notice") to the relevant Borrower.
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10.8 ALTERNATIVE BASIS
Upon the giving of a Suspension Notice relating to a Segment:
(a) (CONSULTATION): the Lender shall consult in good faith with
Treasury UK with a view to agreeing to an alternative basis
for the lending of such Segment;
(b) (SUSPENSION OF OBLIGATION): pending such consultation the
Lender shall not be obliged to advance the Segment;
(c) (ALTERNATIVE BASIS): if such alternative basis is agreed, it
shall apply in accordance with its terms; and
(d) (CESSATION OF NOTICE IF NO agreement): if an alternative basis
is not agreed within 30 days of such Suspension Notice, the
obligation of the Lender to advance such Segment shall cease.
10.9 ADDITIONAL DOMESTIC STERLING COSTS
(a) Whenever Treasury UK is obliged to pay interest in respect of
any amount under this Agreement denominated in domestic
Sterling, Treasury UK shall pay the additional amount advised
by the Lender to be the direct or indirect costs of complying
with the requests or requirements of the Bank of England or
other competent authority in relation to monetary controls or
liquidity requirements with respect to the funding of such
amount.
(b) Such additional amount shall be determined by the Lender in
accordance with the Second Schedule, as amended by the Lender
if there is any change in relevant requirements.
11. EURO CASH ADVANCE FACILITY
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11.1 CURRENCY
The Euro Cash Advance Facility may only be drawn by Treasury Europe or
Treasury UK and in Euros.
11.2 ADVANCE OF SEGMENT
(a) Subject to this Agreement, whenever Treasury Europe or
Treasury UK requests a Segment of the Euro Cash Advance
Facility, the Lender will through its UK Lending Office make
available that Segment to such account as may be notified to
the Lender by Treasury Europe or Treasury UK as applicable, on
the relevant Drawdown Date in Same Day Funds in Euros.
(b) Unless otherwise agreed, a request by Treasury Europe or
Treasury UK for a Segment of the Euro Cash Advance Facility
may be made by telephone, shall be made prior to 11:00am
(Amsterdam time) on the date on which the Relevant Segment is
to be made available (which shall be a Business Day) and shall
be followed as soon as practicable by a Drawdown Notice
substantially in the form of
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Annexure A from Treasury Europe or Treasury UK as applicable,
to the Lender. Any telephone request shall contain the details
required in the Drawdown Notice and shall be irrevocable.
(c) Unless otherwise agreed, the principal amount of each Segment
of the Euro Cash Advance Facility shall be a minimum of:
(i) EUR 5,000,000; or
(ii) the Euro equivalent (determined at the Exchange Rate
as at the Drawdown Date) of the Undrawn Commitment
(if less than EUR 5,000,000).
11.3 INTEREST RATE AND NOTIFICATION
(a) Interest shall accrue from day to day on each Segment of the
Euro Cash Advance Facility for each Funding Period at the rate
per annum determined by the Lender to be the aggregate of the
Margin and Euro Libor for such Funding Period.
(b) If applicable, the Lender shall notify Treasury Europe or
Treasury UK, as the case may be, of the interest rate
determined by it under this Clause as soon as it is
ascertained.
11.4 BASIS OF CALCULATION OF INTEREST
Interest under Clause 11.3 shall accrue from day to day and shall be
computed on the basis of the actual number of days elapsed and a year of
360 days.
11.5 PAYMENT OF INTEREST
Except where this Agreement provides otherwise, Treasury Europe or
Treasury UK, as applicable, shall pay such accrued interest in Euros on
the last day of the relevant Funding Period.
11.6 NETTING OFF
If Treasury Europe or Treasury UK requests a new Segment of the Euro Cash
Advance Facility on the last day of a Funding Period of an old Segment of
that Facility, then only the net amount between:
(a) the funds required to be provided by the Lender for the
account of Treasury Europe or Treasury UK, as applicable, in
relation to that new Segment; and
(b) the funds payable by Treasury Europe or Treasury UK, as
applicable, for the account of the Lender by way of repayment
of the old Segment, need be paid or made available, as the
case may be.
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12. NZ$ CASH ADVANCE FACILITY
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12.1 CURRENCY
The NZ$ Cash Advance Facility may only be drawn by Treasury NZ and in NZ
dollars.
12.2 ADVANCE OF SEGMENT
(a) Subject to this Agreement, whenever Treasury NZ requests a
Segment of the NZ$ Cash Advance Facility, BNZ will through its
BNZ Lending Office make available that Segment to such account
as may be notified to BNZ by Treasury NZ on the relevant
Drawdown Date in Same Day Funds in NZ dollars.
(a) Unless otherwise agreed, a request by Treasury NZ for a
Segment of the NZ$ Cash Advance Facility may be made by
telephone, shall be made prior to 11:00am (Auckland time) on
the date on which the Segment is to be made available (which
shall be a Business Day) and shall be followed as soon as
practicable by a Drawdown Notice substantially in the form of
Annexure C from Treasury NZ to BNZ. Any telephone request
shall contain the details required in the Drawdown Notice and
shall be irrevocable.
(b) Unless otherwise agreed, the principal amount of each Segment
of the NZ$ Cash Advance Facility shall be a minimum of:
(i) NZ$ 5,000,000; or
(ii) the NZ dollar equivalent (determined at the Exchange
Rate as at the Drawdown Date) of the Undrawn
Commitment (if less than NZ$ 5,000,000).
12.3 INTEREST RATE AND NOTIFICATION
(a) Interest shall accrue from day to day on each Segment of the
NZ$ Cash Advance Facility for each Funding Period at the rate
per annum determined by BNZ to be the aggregate of the Margin
and the NZ Bank Bill Rate for such Funding Period.
(b) If applicable, BNZ shall notify Treasury NZ of the interest
rate determined by it under this Clause as soon as it is
ascertained.
12.4 BASIS OF CALCULATION OF INTEREST
Interest under Clause 12.3 shall accrue from day to day and shall be
computed on the basis of the actual number of days elapsed and a year of
365 or 366 days (as the case may be).
12.5 PAYMENT OF INTEREST
Except where this Agreement provides otherwise Treasury NZ shall pay such
accrued interest in NZ dollars on the last day of the relevant Funding
Period.
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12.6 NETTING OFF
If Treasury NZ requests a new Segment of the NZ$ Cash Advance Facility on
the last day of a Funding Period of an old Segment of that Facility, then
only the net amount between:
(a) the funds required to be provided by BNZ for the account of
Treasury NZ in relation to that new Segment; and
(b) the funds payable by Treasury NZ for the account of BNZ by way
of repayment of the old Segment, need be paid or made
available, as the case may be.
13. US$ CASH ADVANCE FACILITY
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13.1 CURRENCY
The US$ Cash Advance Facility may only be drawn by Treasury USA and in US
dollars.
13.2 ADVANCE OF SEGMENT
(a) Subject to this Agreement, whenever Treasury USA requests a
Segment of the US$ Cash Advance Facility, the Lender will
through its US Lending Office make available that Segment to
such account as may be notified to the Lender by Treasury USA
on the relevant Drawdown Date in Same Day Funds in US dollars.
(b) Unless otherwise agreed, a request by Treasury USA for a
Segment of the US$ Cash Advance Facility may be made by
telephone, shall be made prior to 11:00am (New York time) 3
Business Days before the date on which the Segment is to be
made available (which shall be a Business Day) and shall be
followed as soon as practicable by a Drawdown Notice
substantially in the form of Annexure A from Treasury USA to
the Lender. Any telephone request shall contain the details
required in the Drawdown Notice and shall be irrevocable.
(c) Unless otherwise agreed, the principal amount of each Segment
of the US$ Cash Advance Facility shall be a minimum of:
(i) US$ 5,000,000; or
(ii) the US dollar equivalent (determined at the Exchange
Rate as at the Drawdown Date) of the Undrawn
Commitment (if less than US$ 5,000,000).
13.3 INTEREST RATE AND NOTIFICATION
(a) Interest shall accrue from day to day on each Segment of the
US$ Cash Advance Facility for each Funding Period at the rate
per annum determined by the Lender to be the aggregate of the
Margin and LIBOR for such Funding Period.
(b) If applicable, the Lender shall notify Treasury USA of the
interest rate determined by it under this Clause as soon as it
is ascertained.
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13.4 BASIS OF CALCULATION OF INTEREST
Interest under Clause 13.3 shall accrue from day to day and shall be
computed on the basis of the actual number of days elapsed and a year of
360 days.
13.5 PAYMENT OF INTEREST
Except where this Agreement provides otherwise, Treasury USA shall, in
respect of a Funding Period, pay such accrued interest in US dollars on
the last day of the relevant Funding Period, and also, in the case of a
Funding Period longer than 3 months, on the day 3 months after
commencement of that Funding Period.
13.6 NETTING OFF
If Treasury USA requests a new Segment of the US$ Cash Advance Facility on
the last day of a Funding Period of an old Segment of that Facility, then
only the net
amount between:
(a) the funds required to be provided by the Lender for the
account of Treasury USA in relation to that new Segment; and
(b) the funds payable by Treasury USA for the account of the
Lender by way of repayment of the old Segment, need be paid or
made available, as the case may be.
14. LC FACILITY
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14.1 ISSUE
(a) Subject to this Agreement and sub-paragraph (b), whenever a
Borrower requests a Segment utilising the LC Facility the
Lender, or in the case of a request from Treasury NZ, BNZ
shall issue for the account of the relevant Borrower the
Letters of Credit referred to in the relevant Drawdown Notice
on the relevant Drawdown Date.
(b) The Lender or BNZ, as the case may be, shall not be obliged to
issue a Letter of Credit for the account of the relevant
Borrower unless it is satisfied that the Letter of Credit is
not requested or to be issued in respect or support of public
debt. No Borrower shall request the issue of a Letter of
Credit or utilise the LC Facility in respect or support of
public debt.
14.2 FORM
Each Letter of Credit shall be substantially in the form of Annexure B.
14.3 EXPIRY DATE
Each Letter of Credit will expire on the last day of the Funding Period of
the relevant Segment specified in the relevant Drawdown Notice, which
shall be not later than the date 5 Business Days after the final maturity
date of the relevant Secured Financing.
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14.4 AMOUNT AND CURRENCY
(a) (LIMITS): The face amount of any Letter of Credit shall be a
minimum of A$10,000,000 or its Equivalent Amount and shall not
cause a breach of the limits in Clause 2.
(b) (FACE AMOUNT): The maximum face amount of each Letter of
Credit on issue shall not exceed:
(i) the maximum liability of the relevant Borrower for
repayment of principal under the relevant Secured
Financing;
(ii) accrued interest or amounts in the nature of interest
relevant to the principal amount outstanding under
the relevant Secured Financing for the period up
until the expiry date of the Letter of Credit at that
time; and
(iii) other amounts relevant to the principal amount of the
Secured Financing which as at the date of issue are
quantifiable.
(c) (CURRENCY): A Letter of Credit may only be issued in
Australian dollars, Sterling, Euros, NZ dollars or US dollars.
14.5 ACCELERATION OF SECURED FINANCING
Each Borrower shall procure that it is a term and condition of any Secured
Financing to which it is a party that upon a declaration by the Lender or
BNZ, as the case may be, or the Trustee under Clause 5.2(A) of the Trust
Deed all moneys owing under that Secured Financing (whether actually or
contingently) shall be immediately due and payable.
14.6 PAYMENT OF SECURED FINANCINGS
Each Borrower shall duly and punctually pay all principal, interest and
other amounts due and payable under or in relation to each Secured
Financing to which it is a party.
14.7 INDEMNITY
(a) (PAYMENT): Each Borrower shall on demand pay to the Lender or
BNZ, as the case may be, all amounts paid or required to be
paid by the Lender or BNZ, as applicable, under any Letter of
Credit issued for its account.
(b) (GENERAL INDEMNITY): Each Borrower shall on demand indemnify
the Lender and BNZ from and against all loss, liabilities,
damage, costs, charges and expenses suffered or incurred by
the Lender or BNZ, as applicable, (otherwise than arising
solely as a result of a default by the Lender or BNZ, as the
case may be, ) in relation to or arising out of any claim made
or purported to be made under any Letter of Credit issued for
its account or anything done by any person who is or claims to
be entitled to the benefit of any such Letter of Credit.
(c) (COVER IN ANOTHER CURRENCY):
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(i) Each Borrower acknowledges that although the Lender
or BNZ may be making a payment under or in relation
to a Letter of Credit in one currency, it may be
purchasing the necessary currency with another
currency.
(ii) Accordingly, if required by the Lender or BNZ, the
relevant Borrower shall pay to the Lender or BNZ the
amount of the currency which the Lender or BNZ
certifies that it used to purchase the currency paid
by it or required to be paid by it under or in
relation to any Letter of Credit.
14.8 REINSTATEMENT OF OBLIGATIONS
If all or any part of any amount paid by a Borrower to the Lender or BNZ
under this Clause 14 is required to be surrendered, released or repaid by
the Lender or BNZ for any reason whatsoever, then the Lender or BNZ, as
applicable, shall be entitled to all rights it would have had if such sum
had never been paid by the relevant Borrower.
14.9 OBLIGATIONS UNCONDITIONAL
Each Borrower agrees that its obligations under Clause 14.7 shall be
absolute and unconditional and shall not be subject to any reduction,
termination or other impairment by any set-off, deduction, counterclaim,
agreement, defence, suspension, deferment or otherwise and no Borrower
shall be released, relieved or discharged from any obligations under this
Agreement, nor shall such obligations be prejudiced or affected by any
reason including without limitation:
(a) any falsity, inaccuracy, insufficiency or forgery of or in any
demand, certificate or declaration or other document which on
its face purports to be signed or authorised pursuant to a
Letter of Credit;
(b) any failure by the Lender or BNZ, as the case may be, to
enquire whether any cable or telex has been inaccurately
transmitted or received from any cause or has been sent by an
unauthorised Person;
(c) the impossibility or illegality of performance of or any
invalidity of or affecting this Agreement, any Relevant
Document, any Secured Financing or any Letter of Credit or any
other agreement;
(d) any act of any Governmental Agency or arbitrator, including
any law, judgment, decree or order at any time in effect in
any jurisdiction affecting any of the terms of this Agreement,
any Relevant Document, any Secured Financing or any other
document delivered pursuant to this Agreement or any Relevant
Document;
(e) any failure to obtain any Authorisation necessary or
appropriate in connection with this Agreement; or
(f) any other cause or circumstance, foreseen or unforseen,
whether similar or dissimilar to any of the above affecting
this Agreement, any Relevant Document, any Secured Financing
or any transaction under any Relevant Document,
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and the Lender or BNZ, as the case may be, shall not be liable or under
any duty to enquire in respect of any of the matters mentioned in the
preceding paragraphs of this Clause.
15. REPAYMENT OF PRINCIPAL
--------------------------------------------------------------------------------
15.1 REPAYMENT OR CASH COVER
If on any four consecutive Business Days the aggregate of the Current
Dollar Value of all Segments drawn under all Facilities is greater than
120% of the Commitment then the Borrowers shall, upon the request of the
Lender and/or BNZ, as the case may be, on the second Business Day after
the last of such four consecutive days:
(a) repay such Segments and/or parts of Segments in their
respective currencies in such aggregate principal amount; or
(b) deposit with the Lender and/or BNZ, as the case may be, by way
of cash cover for the liabilities of the Borrowers to the
Lender and/or BNZ, as the case may be, under this Agreement an
amount, in Australian dollars,
so that after making the repayment or deposit the aggregate of the Current
Dollar Value of all Segments drawn under the Facilities (after deducting
the amount of any such deposit) does not exceed the Commitment as at the
date of the repayment or deposit.
15.2 INTEREST
All amounts deposited by way of cash cover under Clause 15.1(b) (and any
interest on such amounts) shall accrue and be credited interest at a rate
and in the manner the Lender and/or BNZ, as the case may be, determines
would apply to deposits at call in accordance with its normal procedures.
15.3 APPLICATION
Without limiting any other provision of any Relevant Document the Lender
and/or BNZ, as the case may be, may at any time after the occurrence of an
Event of Default which would entitle the Lender, BNZ or the Trustee to
make a declaration under clause 5.2(A) or (B) of the Trust Deed apply any
such cash cover and/or any such interest in payment of the Principal
Outstanding and any other moneys then payable by any Borrower to the
Lender and/or BNZ, as the case may be.
15.4 REPAYMENT OF CASH COVER
Any amount (or interest on such amount) deposited by way of cash cover
under Clause 15.1(b) shall be repaid, to the Borrower which deposited it,
on the Second Business Day following the date on which the aggregate of
the Current Dollar Value of all Segments drawn under all Facilities has
been not greater than the Commitment for a period of five consecutive
Business Days provided; no Event of Default which would entitle the
Lender, BNZ or the
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Trustee to make a declaration under Clause 5.2(A) or (B) of the Trust
Deed has occurred and, if such an Event of Default has occurred, when
the Principal Outstanding and all other moneys owing to the Lender
and/or BNZ, as the case may be, have been fully and finally paid.
15.5 NOTIFICATION OF AMOUNT
The Lender shall notify Foster's Brewing Group of the amount of the
Current Dollar Value (on any day) of the Segments as soon as practicable
after it is ascertained whenever reasonably requested to do so by Foster's
Brewing Group.
16. PAYMENTS AND TAXATION
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16.1 TIME AND PLACE
Unless this Agreement provides otherwise, each Borrower shall make all
payments under this Agreement in any currency in Same Day Funds not later
than 11.00am (local time) on the due date to the account specified by the
Lender or BNZ from time to time in respect of such currency.
16.2 NO DEDUCTION
Each Borrower shall make all payments required under this Agreement
without set-off or counterclaim and without deduction, whether on account
of Taxes (except to the extent the Borrower or Foster's Brewing Group is
obliged to deduct Taxes, but without prejudice to Clause 16) or otherwise.
16.3 PAYMENT TO BE MADE ON BUSINESS DAY
Whenever any payment becomes due on a day which is not a Business Day, the
due date shall be the next Business Day in the same calendar month or, if
none, the preceding Business Day and interest shall be adjusted
accordingly.
16.4 APPROPRIATION WHERE INSUFFICIENT MONEYS AVAILABLE
Amounts received by the Lender or BNZ, shall be appropriated as between
principal, interest and other amounts as the Lender or BNZ, as the case
may be, determines. Any such appropriation shall override any
appropriation made by a Borrower.
16.5 ADDITIONAL PAYMENTS
Whenever any Borrower is obliged to make a deduction in respect of Tax
from any Payment to be made under this Agreement or any Relevant Document
then it shall:
(a) promptly pay the amount deducted to the appropriate
Governmental Agency;
(b) within 30 days of the end of the month in which the deduction
is made, deliver to the Lender or BNZ, as the case may be,
official
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receipts or other documentation acceptable to the Lender or
BNZ, evidencing payment of such amount; and
(c) unless the Tax is Excluded Tax, indemnify on demand the Lender
or BNZ, as the case may be, against such Tax and any amounts
recoverable from the Lender or BNZ, in respect of such Tax,
and pay for the account of the Lender or BNZ such additional
amounts as the Lender or BNZ, may determine to be necessary to
ensure that the Lender or BNZ, (as applicable), receives when
due a net amount (after payment of any Taxes in respect of
such additional amounts) in the relevant currency or
currencies equal to the full amount which it would have
received had a deduction not been made. Each Borrower and
Foster's Brewing Group waives any statutory right to recover
any such amounts from the Lender or BNZ.
16.6 SURVIVAL OF OBLIGATIONS
The obligations of each Borrower and Foster's Brewing Group under this
Clause shall survive the repayment of any Guaranteed Moneys and the
termination of this Agreement and any Relevant Document.
16.7 REIMBURSEMENT
(a) For so long as no Event of Default entitling the Lender or the
Trustee to make a declaration under clause 5.2(A) or (B) of
the Trust Deed has occurred and is subsisting, whenever:
(i) any Borrower or Foster's Brewing Group pays any
additional amount to, for the account of, or on
behalf of, the Lender or BNZ, as the case may be, in
respect of amounts payable under Clause 16.5
("Additional Taxes"); and
(ii) the Lender or BNZ, in its absolute discretion decides
that it has received any clearly identifiable credit
against or relief or remission for the amount or
repayment of, any Tax paid or payable by it in
respect of or calculated with reference to the
deduction or withholding giving rise to such
Additional Tax,
then to the extent that it determines that a payment to the
Borrower or Foster's Brewing Group can be made without
prejudice to the retention of the amount of such credit,
relief, remission or repayment, the Lender or BNZ, shall
promptly pay to the Borrower or Foster's Brewing Group (as the
case may be) the amount of any consequent reduction in its
Tax.
(b) Nothing in paragraph (a) shall interfere with the right of the
Lender or BNZ to arrange its Tax affairs in any manner it
thinks fit. In particular, neither the Lender nor BNZ shall be
under any obligation to claim any credit, relief, remission or
repayment in respect of the amount of any Additional Taxes in
priority to any other credit, relief, remission or repayment
available to it or to disclose to any Borrower or Foster's
Brewing Group any information regarding its tax affairs or tax
computations.
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17. GST
--------------------------------------------------------------------------------
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 the Lender or BNZ is not entitled to an input tax credit
in respect of the amount of any GST charged to or recovered
from the Lender or BNZ, as the case may be, by any person, or
payable by the Lender or BNZ, or in respect of any amount
which is recovered from the Lender by way of reimbursement of
GST referable directly or indirectly to any supply made under
or in connection with this agreement, the Lender or BNZ, as
the case may be, 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 a Borrower is required under this agreement to indemnify
or reimburse the Lender or BNZ for any costs, expenses or
liabilities of the Lender or BNZ, then the amount of the
costs, expenses or liabilities is the actual amount incurred
by the Lender or BNZ, as the case may be, less any input tax
credit the Lender or BNZ is entitled to receive in relation to
those costs, expenses or liabilities. For the purposes of this
paragraph (c) the Lender is entitled to receive those input
tax credits that can be identified and quantified in
accordance with the apportionment model used by the Lender
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 Lender or BNZ is not entitled to an input tax credit,
recoverable 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) ACT 1999.
18. CHANGES IN LAW
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18.1 INCREASED COSTS
Whenever the Lender or BNZ determines that it or any of its holding
companies is affected by any change (occurring after the date of this
Agreement) in, any making (occurring after the date of this Agreement) of,
or any change (occurring after the date of this Agreement) in the
interpretation
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or application by any Governmental Agency of, any law, official
directive or request (including, without limitation, with respect to
Taxation (other than an Excluded Tax) or reserve, liquidity, capital
adequacy, special deposit or similar requirements) and that as a
result:
(a) the effective cost to the Lender or BNZ, as the case may be,
of making, funding or maintaining any Segment or its
Commitment is in any way increased;
(b) any amount paid or payable to or received or receivable by the
Lender or the effective return to the Lender or BNZ or any of
its holding companies under or in respect of this Agreement or
the Trust Deed is in any way reduced;
(c) the return of the Lender or BNZ or any of its holding
companies on the capital which is or becomes directly or
indirectly allocated by the Lender or BNZ or the holding
company to any Segment or its Commitment is in any way
reduced; or
(d) in any way, in so far as the law, official directive or
request relates to or affects its Commitment, any Segment,
this Agreement or the Trust Deed, the overall return on
capital of the Lender or BNZ or any of its holding companies
is reduced,
(including, without limitation, by reason of the Lender or BNZ or any of
their holding companies being restricted in its capacity to enter other
transactions, or being required to make a payment or foregoing or earning
reduced interest or other return on any capital or on any amount
calculated by reference in any way to, or allocating capital to, the
amount of any Segment, its Commitment or to any other amount paid or
payable or received or receivable under this Agreement or the Trust Deed)
then:
(e) (when it has calculated the effect of the foregoing and the
amount to be charged) the Lender or BNZ, as applicable, shall
notify Foster's Brewing Group; and
(f) on demand from time to time the relevant Borrower shall pay
for the account of the Lender or BNZ, the amount certified by
an Authorised Officer of the Lender or BNZ, which shall
compensate it or its relevant holding company (as the case may
be) for such increased cost or such reduction.
This Clause applies with respect to official directives or requests
whether or not having the force of law and, if not having the force of
law, the observances of which is in accordance with the practice of
responsible bankers or financial institutions in the country concerned.
18.2 MINIMISATION
(a) (NOTICE): At the time of making such demand, the Lender or
BNZ, as the case may be, shall deliver to Foster's Brewing
Group a certificate specifying (without any obligation to
disclose any details relating to its business and Tax
affairs):
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(i) the event by reason of which it is entitled to make
such demand; and
(ii) the calculation (in reasonable detail) on which such
demand is based.
(b) (NO DEFENCE): If the Lender and (if applicable) its holding
company or BNZ and (if applicable) its holding company has
acted in good faith it shall not be a defence that any cost,
reduction or payment or loss of tax credit referred to in
Clause 16 or this Clause could have been avoided.
(c) (NEGOTIATION): At the request of a Borrower or Foster's
Brewing Group, the Lender or BNZ, as the case may be, shall
negotiate in good faith with the relevant Borrower with a view
to finding a means by which any such cost, reduction or
payment or loss of tax credit or the effect of any
unlawfulness or impracticability referred to in Clause 17.4
can be minimised.
18.3 SURVIVAL OF OBLIGATIONS
The obligations of each Borrower under this Clause shall survive the
repayment of any Guaranteed Moneys and the termination of any Relevant
Document.
18.4 ILLEGALITY
If the making of, or a change in the interpretation or application by any
Governmental Agency of, any law or treaty makes it unlawful or
impracticable for the Lender or BNZ to make, fund or maintain its
participation in any Segment then:
(i) the Lender or BNZ, as the case may be, may, by notice to the
relevant Borrower, terminate its Facilities as set out in
Clause 2.1(a);
(ii) if required by the law or treaty, or if necessary to prevent
or remedy a breach of the law or treaty, the relevant Borrower
will prepay the relevant Segment together with all fees and
other amounts payable under the relevant Segment; and
(iii) such prepayment shall be made immediately, but if in the
opinion of the Lender or BNZ, as the case may be, delay in
prepayment is permitted by, or will not cause a breach of, the
law or treaty, it shall be made on the latest permitted day.
19. CONDITIONS PRECEDENT
--------------------------------------------------------------------------------
19.1 CONDITIONS PRECEDENT TO EACH SEGMENT
The obligation of the Lender and BNZ to make available each Segment is
subject to the following conditions precedent:
(a) (TRUST DEED CONDITIONS PRECEDENT - NO INCREASE IN PRINCIPAL
AMOUNT): to the extent only that the provision of the Segment
would
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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) (both inclusive)
of Clause 5.7(a) of the Trust Deed (subject to Clause 5.7(c)
of the Trust Deed) applies as if set out in this Agreement and
has been satisfied (on the basis that any reference to the
"Funding Creditor" in any of those paragraphs is a reference
to the "Lender" or "BNZ" 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 the "Lender" or "BNZ" as applicable);
(c) (NO DEFAULT): that no Event of Default or Potential Event of
Default will result from the provision of the financial
accommodation; and
(d) (AUTHORISATION): that all necessary Authorisations for the
provision of the financial accommodation have been obtained.
20. REPRESENTATIONS AND WARRANTIES, COVENANTS AND EVENTS OF DEFAULT
--------------------------------------------------------------------------------
20.1 REPRESENTATIONS AND WARRANTIES
(a) Each of the Borrowers and Foster's Brewing Group acknowledges
that each of the Lender and BNZ enter into this Agreement in
reliance on the representations and warranties contained in
Clause 3 of the Trust Deed.
(b) Each of the Borrowers and Foster's Brewing Group acknowledges
that the representations and warranties in Clause 3 of the
Trust Deed are repeated for the benefit of the Lender and BNZ
in accordance with Clause 3.4 of the Trust Deed.
20.2 COVENANTS
Each Borrower and Foster's Brewing Group acknowledges that it has given
the undertakings in the Trust Deed for the benefit of the Lender and BNZ
and that the Lender and BNZ are entering into this Agreement in reliance
on those undertakings.
20.3 EVENTS OF DEFAULT
The list of Events of Default and the rights of the Lender and BNZ as
Creditors as a consequence of an Event of Default are set out in Clause 5
of the Trust Deed. Each of the Borrowers and Foster's Brewing Group
acknowledges that the Lender and BNZ each enter into this Agreement in
reliance on the rights conferred under Clause 5 of the Trust Deed and on
the basis that they are and will be entitled to exercise those rights as a
"Creditor".
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20.4 AMENDMENT OR WAIVER
The Lender and BNZ each confirm 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.
21. SET-OFF
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21.1 SET-OFF AUTHORISED
Each Borrower and Foster's Brewing Group severally authorises the Lender
and BNZ (but without obligation on the part of the Lender or BNZ) if an
Event of Default which would entitle the Lender or BNZ (as a Creditor) or
the Trustee to make a declaration under Clause 5.2(A) or (B) of the Trust
Deed is subsisting to apply any credit balance in any currency (whether or
not matured) in any of its accounts with any branch of the Lender or BNZ
in or towards satisfaction of any sum at any time due and payable by it to
the Lender or BNZ, as the case may be, under or in relation to this
Agreement or any Relevant Document.
21.2 CURRENCY EXCHANGES
Each of the Lender and BNZ may effect such currency exchanges as are
appropriate to implement such set-off.
22. INDEMNITIES
--------------------------------------------------------------------------------
22.1 INDEMNITY
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 termination of this Agreement.
22.2 NATURE OF INDEMNITY
Each Borrower and Foster's Brewing Group shall indemnify the Lender and
BNZ, on demand against any loss, cost or expense the Lender or BNZ may
sustain or incur as a consequence of:
(a) the occurrence of any Event of Default or Potential Event of
Default;
(b) any statement in, or omission or alleged omission from, any
information or loan proposal or any document or information
prepared or authorised by it, or any claim in respect of any
of the foregoing (including legal costs on a full indemnity
basis);
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(c) any Segment requested in a Drawdown Notice not being provided
for any reason (including, without limitation, failure to
fulfil any condition precedent but excluding any default by
the Lender or BNZ; or
(d) the Lender or BNZ receiving payments of principal in respect
of any Segment other than on the last day of the relevant
Funding Period, or any period under Clause 25.2(b)(ii) for any
reason, including, without limitation, prepayment in
accordance with this Agreement, but excluding default by the
Lender or BNZ.
Without limitation such indemnity shall cover the amount determined by the
Lender or BNZ as being incurred by reason of the liquidation or
re-employment of deposits or other funds acquired or contracted for the
Lender or BNZ to fund or maintain any such Segment or amount (including
loss of margin).
23. CURRENCY INDEMNITY
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23.1 GENERAL
Whenever:
(a) any amount payable by any Borrower or Foster's Brewing Group
under or in respect of this Agreement or any Relevant Document
is received or recovered by the Lender or BNZ in a currency
(the "Payment Currency") other than the currency under which
the relevant amount was payable under this Agreement or the
Relevant Document (the "Agreed Currency") for any reason
(including without limitation as a result of any judgment or
order); and
(b) the amount actually received by the Lender or BNZ in
accordance with its normal practice by converting the Payment
Currency into the Agreed Currency is less than the relevant
amount of the Agreed Currency,
then the Borrower, or Foster's Brewing Group as the case may be, shall as
an independent obligation indemnify the Lender or BNZ, as the case may be,
on demand against the deficiency.
23.2 LIQUIDATION
In the event of the Liquidation of a Borrower or Foster's Brewing Group,
that Borrower and Foster's Brewing Group shall (jointly and severally)
indemnify the Lender and BNZ on demand against any deficiency arising or
resulting from any variation as between:
(a) the exchange rate actually applied for the purposes of such
Liquidation in converting into another currency any amount
expressed in one currency due or contingently due under this
Agreement or any Relevant Document or under any judgment or
order relating to this Agreement or any Relevant Document; and
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(b) the exchange rate at which the Lender or BNZ, as the case may
be, 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.
24. CONTROL ACCOUNTS
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The accounts kept by the Lender and BNZ shall constitute sufficient
evidence, unless the contrary is provided, of the amount at any time due
from any Borrower or Foster's Brewing Group under this Agreement or any
Relevant Document.
25. INTEREST ON OVERDUE AMOUNTS
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25.1 PAYMENT OF INTEREST ON OVERDUE AMOUNTS
On demand by the Lender or BNZ, as the case may be, from time to time:
(a) subject to Clause 25.6, each Borrower shall pay interest on
all amounts due and payable by it under or in relation to this
Agreement or any Relevant Document (including without
limitation, such amounts due for payment under Clause 5 of the
Trust Deed) and unpaid; and
(b) the relevant Borrower shall pay interest on all amounts
claimed (to the extent cash cover is not provided in respect
of such amount, as and when required under the Relevant
Document) under a Letter of Credit,
(including interest payable under this clause) in the currency of the
relevant amount. Interest under this clause shall accrue, subject to
Clause 25.6, from the date such amount is due and payable or the Lender or
BNZ, as the case may be, receives a claim under a Letter of Credit.
25.2 ACCRUAL OF INTEREST
Such interest shall accrue, subject to Clause 25.6, from the due date up
to the date of actual payment, before and (as a separate and independent
obligation) after judgment at a rate determined by the Lender or in the
case of amounts owing to BNZ, at a rate determined by BNZ to be the
aggregate of 3% per annum and the highest of:
(a) the rate (if any) applicable to such amount immediately prior
to the due date; or
(b) the sum of the Margin; and
(i) if the amount is denominated in Australian dollars,
the Lender's benchmark rate from time to time;
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(ii) if the amount is denominated in NZ dollars, BNZ's
benchmark rate from time to time; or
(iii) if the amount is denominated in any other currency,
the arithmetic mean (rounded upwards, if necessary,
to the nearest 1/16th) of the rates applicable two
Business Days before the date of default (or, as
appropriate, the expiry of the funding period
referred to below) by leading banks in the London
Interbank Market (as selected by the Lender), for the
making of deposits in the currency concerned of an
amount comparable to the overdue amount on call or
for such funding period not exceeding three months as
the Lender may determine from time to time (or, if no
such quotes are available, such equivalent rate as
the Lender may determine); and
(c) if the amount in respect of which the interest is accruing is
one payable to or for the account of the Lender or BNZ, the
cost incurred by the Lender or BNZ, as the case may be, in
funding the relevant Facility (as certified by the Lender or
BNZ).
25.3 CALCULATION PERIOD
Interest on amounts denominated in Australian dollars, Sterling or NZ
dollars shall be calculated on the basis of a year of 365 days, or 366
days (as the case may be), and interest on amounts denominated in other
currencies a year of 360 days
25.4 OTHER CURRENCIES
Where the Lender certifies to a Borrower that it used another currency to
purchase the necessary currency to make a payment under or in relation to
a Letter of Credit, interest will accrue on such payment in that other
currency from the date of payment.
25.5 CAPITALISATION OF INTEREST
Unless demanded more frequently, interest under this Clause 25 shall
capitalise quarterly.
25.6 CONTINGENCIES AND CASH COVER
Without prejudice to the obligations of a Borrower under Clause 25.7, no
Borrower shall be obliged to pay interest under this Clause 25 on any
amount due and payable under this Agreement or the Trust Deed in respect
of any contingent liability of the Lender or BNZ under a Letter of Credit
or in respect of any Bill by way of cash cover unless and until:
(a) where the amount was payable in respect of the contingent
liability of the Lender or BNZ under a Letter of Credit, a
claim is made on the Lender or BNZ, as applicable, under or in
relation to that Letter of Credit; or
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(b) where the amount was payable in respect of a Bill which had
not matured, the maturity date of that Bill.
25.7 RISK FEE
Each Borrower shall pay to the Lender or BNZ, as the case may be, a risk
fee on all amounts due and payable under this Agreement or any Relevant
Document in respect of any contingent liability of the Lender or BNZ under
a Letter of Credit or in respect of any Bill by way of cash cover but
unpaid, in the currency or currencies of the relevant amounts at the rate
of 3% per annum from the due date up until:
(a) in the case of an amount payable in respect of the contingent
liability of the Lender or BNZ under a Letter of Credit, a
claim is made on the Lender or BNZ under or in relation to
that Letter of Credit or the Letter of Credit expires
without having been drawn upon; and
(b) in the case of an amount payable in respect of a Bill which
had not matured, the maturity date of that Bill,
calculated on the basis of a year of 365 days or 366 days (as the case may
be) (in the case of amounts denominated in Australian dollars, NZ dollars
or Sterling) or 360 days (in the case of amounts denominated in any other
currency). Such fee shall be payable, in relation to each such amount, on
the last day of the period in respect of which the fee is payable or, if
that period is longer than three months, the date three months after the
amount becomes due and payable this Agreement or any Relevant Document and
the last day of the period in respect of which the fee is payable.
26. FEES
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The Borrowers shall pay to the Lender and BNZ the applicable
establishment, line and Letter of Credit fees in the currencies and
amounts and at the times set out in the letter from the Lender and BNZ to
Foster's Brewing Group (each accepted by an Authorised Officer of Foster's
Brewing Group). The liability of all Borrowers under this Clause shall,
unless any such letter expressly provides otherwise, be joint and several.
27. ASSIGNMENTS
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27.1 ASSIGNMENT BY BORROWERS OR FOSTER'S BREWING GROUP
Neither a Borrower nor Foster's Brewing Group shall assign or transfer all
or any of its rights or obligations under this Agreement or any Relevant
Document without the prior written consent of the Lender and BNZ .
27.2 ASSIGNMENT BY LENDER
The Lender or BNZ, may assign or transfer all or any of its rights or
obligations under this Agreement or any Relevant Document to another bank
or financial institution at any
time if:
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(a) any necessary prior Authorisation is obtained; and
(b) Foster's Brewing Group has given its prior consent to such
transfer or assignment, which consent:
(i) shall not be unreasonably withheld;
(ii) shall not to be required in the case of a transfer or
assignment to a Related Corporation of the Lender or
BNZ; and
(iii) will be deemed to have been given if no response is
received within 16 days of request for such consent.
27.3 DISCLOSURE
The Lender or BNZ, may with the prior consent of Foster's Brewing Group
(which shall not unreasonably be withheld or delayed) disclose to a
proposed assignee, or transferee or sub-participant information relating
to any member of the Group or furnished in connection with this Agreement
and the Relevant Documents.
27.4 CHANGE OF LENDING OFFICE
The Lender may change any Lending Office and BNZ may change the BNZ
Lending Office if it gives prior notice to Foster's Brewing Group and
consults with Foster's Brewing Group.
27.5 NO INCREASED COSTS
Notwithstanding anything to the contrary in this Agreement, if the Lender
or BNZ, assigns its rights or transfers any or all of its rights and
obligations under this Agreement or changes its Lending Office or the BNZ
Lending Office as the case may be, neither the Borrowers nor Foster's
Brewing Group shall be required to pay any net increase in the aggregate
amount of costs, Taxes, fees or charges which is a direct consequence of
the assignment or transfer or change of Lending Office or the BNZ Lending
Office and of which the Lender or BNZ, as the case may be, 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.
28. NOTICES
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28.1 NOTICES
All notices, requests, demands, consents, approvals, agreements or other
communications to or by a party to this Agreement shall:
(a) be in writing addressed to the address of the recipient shown
in this Agreement or to such other address as it may have
notified the sender;
(b) be signed by an Authorised Officer of the sender; and
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FACILITY AGREEMENT
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(c) be deemed to be duly given or made:
(i) (in the case of delivery in person or by post,
facsimile transmission or cable) when delivered to or
left at such address; or
(ii) (in the case of telex) on receipt by the sender of
the answerback code of the recipient at the end of
transmission,
but if such delivery or receipt is not on a day on which business is
generally carried on in the place to which such communications is
sent or is later than 4.00pm (local time), it shall be deemed to
have been duly given or made at the commencement of business on the
next such day in that place.
(b) Correspondence to, and other communications with, the Lender
or BNZ shall be to the address of the relevant Lending Office
or BNZ Lending Office, as the case may be, as detailed in
Schedule 1.
28.2 TO BORROWER OR FOSTER'S BREWING GROUP
Any notice required to be given to the Borrower or Foster's Brewing Group
shall deemed given if given to Foster's Brewing Group in accordance with
Clause 28.1
29. AUTHORISED OFFICERS
--------------------------------------------------------------------------------
Each of the Borrowers and the Foster's Brewing Group irrevocably
authorises each of the Lender and BNZ to rely on a certificate by any
person purporting to be one of its directors or secretaries, as to the
identity any signatures of its Authorised Officers and warrants that those
persons have been authorised to give notices and communications under or
in connection with this Agreement.
30. GOVERNING LAW
--------------------------------------------------------------------------------
This Agreement shall be governed by the laws of Victoria.
31. COUNTERPARTS
--------------------------------------------------------------------------------
This Agreement may be executed in any number of counterparts. All of such
counterparts taken together shall be deemed to constitute the one
instrument.
32. ACKNOWLEDGMENT BY BORROWERS AND FOSTER'S BREWING GROUP
--------------------------------------------------------------------------------
Each Borrower and Foster's Brewing Group confirms that:
(a) it has not entered into this Agreement in reliance on, or as a
result of, any statement or conduct of any kind of or on
behalf of the Lender or BNZ or any Related Body Corporate of
the Lender or BNZ
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FACILITY AGREEMENT
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(including, without limitation, any advice, warranty,
representation or undertaking); and
(b) neither the Lender nor BNZ nor any Related Body Corporate of
the Lender or BNZ is obligated to do anything (including,
without limitation, disclose anything or give advice), except
as expressly set out in this Agreement or the Relevant
Documents.
33. ATTORNEYS
--------------------------------------------------------------------------------
Each attorney executing this Agreement states that he has no notice of the
revocation of his power of attorney.
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FACILITY AGREEMENT
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EXECUTED in Melbourne.
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FACILITY AGREEMENT
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SCHEDULE 1
LENDING OFFICES
1. AUSTRALIAN LENDING OFFICE - A$ AND US DOLLARS [LC FACILITY]
271 Collins Street
Melbourne Vic 3000
Tel: 3 9659 7619
Fax: 3 9659 9078
Attention: Mr Peter Baldi
2. UK LENDING OFFICE - STERLING AND EUROS
6-8 Tokenhouse Yard
London EC2R 7AJ England
Tel: 0171 710 2437
Fax: 0171 710 2243
Attention: Ms Jo McGrady
3. US LENDING OFFICE - US DOLLARS
Metlife Building
34th Floor
200 Park Avenue
New York, New York 10166
Tel: 0011 1 212 916 9515
Fax: 0011 1 212 983 1969
Attention: Ms Susan Julien
4. BNZ LENDING OFFICE
Level 6, BNZ Tower
125 Queens Street
Auckland, New Zealand
Tel: 09 375 1279
Fax: 09 375 1200
Attention: Ms Shelley Ruha
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FACILITY AGREEMENT
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SCHEDULE 2
ADDITIONAL DOMESTIC STERLING COSTS
(a) The additional domestic Sterling cost for an amount for an Interest Period
is the rate determined by the Lender to be equal to the rate notified by
the Lender and calculated in accordance with the following formulae:
In relation to an amount denominated in Sterling:
BY + S(Y - Z) + F x 0.01% per annum = additional domestic Sterling cost
-------------------------
100 - (B + S)
where on the day of application of the formula:
B is the percentage of the Lender's eligible liabilities (in excess of any
stated minimum) which the Bank of England requires the Lender to hold on a
non-interest-bearing deposit account in accordance with its cash ratio
requirements;
Y is the rate at which Sterling deposits are offered by the Lender to
leading banks in the London interbank market at or about 11.00 a.m. on
that day for the Interest Period;
S is the percentage of the Lender's eligible liabilities which the Bank of
England requires the Lender to place as a special deposit;
Z is the interest rate per annum allowed by the Bank of England on special
deposits; and
F is the charge payable by the Lender to the Financial Services Authority
under paragraph 2.02 or 2.03 (as appropriate) of the Fees Regulations
but where for this purpose, the figure in paragraph 2.02b and 2.03b
will be deemed to be zero expressed in pounds per(pound)1 million of
the fee base of the Lender.
(b) For the purposes of this Schedule 2:
(i) "eligible liabilities" and "special deposits" have the
meanings given to them at the time of application of the
formula by the Bank of England; and
(ii) "fee base" has the meaning given to it in the Fees
Regulations; and
(iii) "Fees Regulations" means the Banking Supervision (Fees)
Regulations 1998 or any other regulations governing the
payment of fees for banking supervision.
(c) In the application of the formula, B, Y, S and Z are included in the
formula as figures and not as percentages, e.g. if B = 0.5% and Y = 15%,
BY is calculated as 0.5 x 15.
(d) (i) The formula is applied on the first day of the relevant
Interest Period.
(ii) Each rate calculated in accordance with the formula is, if
necessary, rounded upward to four decimal places.
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FACILITY AGREEMENT
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(e) If the Lender in its reasonable opinion determines that a change in
circumstances has rendered, or will render, the formula inappropriate,
the Lender following consultation with the relevant Borrower shall
notify the relevant Borrower of the manner in which the additional
domestic Sterling cost will subsequently be calculated. The manner of
calculation so notified by the Lender shall, in the absence of proven
error, be binding on all the parties.
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FACILITY AGREEMENT
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ANNEXURE A
DRAWDOWN NOTICE [NATIONAL AUSTRALIA BANK LIMITED]
-------------------------------------------------
To: National Australia Bank Limited
271 Collins Street
Melbourne Vic 3000
MULTIPLE OPTION FACILITY - DRAWDOWN NOTICE NO. *
We refer to the Facility Agreement dated 27 February 1991 (as amended and
supplemented) (the FACILITY AGREEMENT).
Pursuant to Clause 4 of the Facility Agreement:
1. we give you irrevocable notice that we wish to draw on [#] (the
DRAWDOWN DATE);
[SUCH DATE IS TO BE A BUSINESS DAY]
2. the aggregate principal amount to be drawn in each currency is;
[SUCH AMOUNT TO COMPLY WITH THE LIMITS IN CLAUSE 2]
3. we request the following Segments:
Facility Currency Original Dollar Funding Period
Amount
* ** *** ****
* Bill, Sterling Advance, Market Rate Advance, US$
Cash Advance, Euro Cash Advance or LC Facility
** If Bill Facility or Market Rate Advance Facility $A only, if
Sterling Advance Facility, Sterling only; if Euro Cash
Advance Facility, EUR, if US$ Cash Advance Facility, US
dollars only, or if LC Facility A$, US$, EUR or Sterling
*** Original Dollar Amount must comply with Clause 8.2, 9.2,
10.2, 11.2, 13.2
**** Interest Periods to comply with Clause 5
4. we request that:
(a) the proceeds of the cash advances be remitted to account
number [##] at [##]; and/or
(b) each Letter of Credit shall be made available at the Lending
Office as set out in Schedule 1 [OF THIS ANNEXURE]. The
details of the Secured Financing in respect of which each
Letter of Credit is issued are set out in Schedule 2 [OF THIS
ANNEXURE].
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FACILITY AGREEMENT
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5. we [enclose]/[irrevocably request you to prepare, complete, draw, sign
and deliver on our behalf]/[enclose and irrevocably request you the
complete, draw, sign and deliver on our behalf] Bills (details of which
appear in Schedule 3 below) drawn by Treasury Aust. on the Lender.
We irrevocably request the Lender to do as follows on [#]
(a) in accordance with the Facility Agreement, accept [and
discount] the Bills for the accommodation of Treasury Aust.;
(b) debit to the account of Treasury Aust. styled [##] at the [##]
Branch of the Lender the amount of the Lender's acceptance and
other fees and any stamp or other duty payable on or in
respect of the Bills;
(c) [hand the accepted Bills to [##] (a specimen of whose
signature appears below)].
[OR]
[hand the accepted Bills to [##] (a specimen of whose
signature appears below) against the receipt of $[#] which
moneys are to be credited to the account of Treasury Aust.
styled [##] at [##] [Branch of the Lender.]
[OR]
[complete the name of the payee on the , purchase the Bills or
at your option sell them to any person at such discount rate
as may be applicable and credit the net proceeds after
deducting any moneys above under (b) above to the Account of
Treasury Aust. styled at [##] at the [##] Branch of the
Lender.]
(d) where the name Treasury Aust. is to be inserted as payee of
Bills, endorse that on behalf of Treasury Aust.
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.
[INCLUSION OF A DISCLOSURE UNDER PARAGRAPH 6 SHALL NOT PREJUDICE THE
CONDITIONS PRECEDENT IN THE AGREEMENT OR THE RIGHT OF THE LENDER TO CALL A
DEFAULT]
Expressions defined in the Facility Agreement have the same meaning when
used in this Drawdown Notice.
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FACILITY AGREEMENT
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SCHEDULE 1
SEGMENT NO. BENEFICIARY LENDING OFFICE FACE AMOUNT
1(a)
(b)
(c)
SCHEDULE 2
SEGMENT PRINCIPAL [INTEREST [OTHER MATURITY
AMOUNT OF AND AMOUNTS AMOUNTS (TO DATE
SECURED IN THE COMPLY WITH
FINANCING NATURE OF CLAUSE 14)]
INTEREST]
1(a)
(b)
(c)
SCHEDULE 3
DRAWER'S NO. DATE OF MATURITY FACE AMOUNT
OF BILL EXECUTION DATE
For and on behalf of
BORROWER/FOSTER'S BREWING GROUP
By:
[Authorised Officer]
Dated:
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FACILITY AGREEMENT
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ANNEXURE B
FORM OF LETTER OF CREDIT - [NATIONAL AUSTRALIA BANK LIMITED/BNZ]
[Date]
To: [Name and Address of Beneficiary]
Dear Sirs
[National Australia Bank Limited/BNZ] has pleasure in detailing the particulars
of our Letter of Credit issued in your favour.
--------------------------------------------------------------------------------
[National Australia Bank Limited/BNZ]
Irrevocable Standby Letter of Credit No. [##]
Dated: [#]
--------------------------------------------------------------------------------
ON ACCOUNT OF: [name of Borrower]
BENEFICIARY: [name of Beneficiary]
AMOUNT: Maximum limit of liability [figure]
EXPIRY DATE: [#]
AVAILABLE AT: [National Australia Bank Limited. [address]/BNZ]
BY DRAFTS ON: [National Australia Bank Limited, [address,
marked "refer to Manager, ***] /BNZ]
PAYABLE AT: Sight
ENFACED: ["Drawn under National Australia Bank Limited
Irrevocable Standby Letter of Credit No. [##]
dated [#]"/BNZ].
RETURNABLE TO: [National Australia Bank Limited [address]/BNZ].
ISSUED IN [Details of Secured Financing] (the SECURED FINANCING).
CONNECTION WITH:
Drafts drawn under this Letter of Credit must be payable to the credit of an
account in the name of the Beneficiary, must be delivered to the address at
which this Letter of Credit is expressed to be available, at or before 3.00pm
([insert place of Issuer] time) on the expiry date specified above and be
accompanied by a statutory declaration stating that:
(a) the declarants are two officers of the Beneficiary, making the
declaration on behalf of the Beneficiary;
(b) the declarants have authority to make the statutory declaration on
behalf of the Beneficiary;
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FACILITY AGREEMENT
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(c) the statutory declaration is made pursuant to the terms of the Letter
of Credit No. [##];
(d) the amount claimed is not more than the maximum aggregate amount
available under the Letter of Credit;
(e) the amount claimed represents an amount or amounts remaining unpaid to
the Beneficiary in respect of the Secured Financing in accordance with
arrangements made between the Beneficiary and [name of Borrower]; and
(f) demand for payment of such amount has been made by the Beneficiary on
[name of Borrower] and such demand remains unsatisfied;
and the amount of this Letter of Credit will automatically reduce by the amount
of all such drawings.
There is no responsibility on the part of [National Australia Bank Limited/BNZ]
to investigate the authenticity of the declarations or the declarant's capacity
or entitlement to make the statutory declaration.
This Letter of Credit is subject to the Uniform Customs and Practice for
Documentary Credits (1993 Revision) International Chamber of Commerce Brochure
No. 500.
[National Australia Bank Limited/BNZ] engages with the Beneficiary that drafts
drawn under and in compliance with the terms of this Letter of Credit will be
paid on presentation to [National Australia Bank Limited/BNZ].
For and on behalf of [National Australia Bank Limited/BNZ].
-------------------------------- -----------------------------------
Authorised Signatory Authorised Signatory
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FACILITY AGREEMENT
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ANNEXURE C
DRAWDOWN NOTICE [BNZ]
To: Bank of New Zealand
Level 6, BNZ Tower
125 Queens Street
Auckland, New Zealand
MULTIPLE OPTION FACILITY - DRAWDOWN NOTICE NO. *
We refer to the Facility Agreement dated 27 February 1991 (as amended and
supplemented) (the FACILITY AGREEMENT).
Pursuant to Clause 4 of the Facility Agreement:
1. we give you irrevocable notice that we wish to draw on [#] (the
DRAWDOWN DATE);
[SUCH DATE IS TO BE A BUSINESS DAY]
2. the aggregate principal amount to be drawn in each currency is;
[SUCH AMOUNT TO COMPLY WITH THE LIMITS IN CLAUSE 2]
3. we request the following Segments:
Facility Currency Original Dollar Funding Period
Amount
* NZ dollars ** ***
* NZ$ Cash Advance or LC Facility
** Original Dollar Amount must comply with Clause 12.2 or 14.4
*** Interest Periods to comply with Clause 5
4. we request that:
(a) the proceeds of the cash advances be remitted to account
number [##] at [##]; and/or
(b) each Letter of Credit shall be made available at the BNZ
Lending Office as set out in Schedule 1 [OF THIS ANNEXURE].
The details of the Secured Financing in respect of which each
Letter of Credit is issued are set out in Schedule 2 [OF THIS
ANNEXURE].
5. we acknowledge that pursuant to Clause 3.4 of the Trust Deed, the
representations and warranties in Clause 3 of the Trust Deed are
repeated on the date of this notice with respect to the facts and
circumstances then existing.
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FACILITY AGREEMENT
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[INCLUSION OF A DISCLOSURE UNDER PARAGRAPH 6 SHALL NOT PREJUDICE THE
CONDITIONS PRECEDENT IN THE AGREEMENT OR THE RIGHT OF BNZ TO CALL A
DEFAULT]
Expressions defined in the Facility Agreement have the same meaning when
used in this Drawdown Notice.
