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EXHIBIT 99(b)(12)
SCHEDULE 1
FACILITY AGREEMENT
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FBG TREASURY (AUST.) LIMITED
FBG TREASURY (UK) PLC
FBG TREASURY (USA) INC.
FBG TREASURY (NZ) LIMITED
FOSTER'S BREWING GROUP LIMITED
WESTPAC BANKING CORPORATION
Multiple Option Credit Facility
ARTHUR ROBINSON & HEDDERWICKS
Stock Exchange Centre
530 Collins Street
Melbourne 3000 Australia
Tel 61 3 9614 1011
Fax 61 3 9614 4661
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TABLE OF CONTENTS
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<S> <C> <C>
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 8
1.3 Trust Deed 8
1.4 Repayment and prepayment 8
1.5 Principal 9
1.6 Original Dollar Amount 9
2. COMMITMENT AND BORROWER LIMITS 10
2.1 Commitment 10
2.2 Borrower Limits 10
2.3 Absorption Component 11
2.4 Cancellation at end of Availability Period 11
2.5 Cancellation during Availability Period 11
3. REVIEW 11
4. DRAWDOWN NOTICES 12
4.1 Drawdown Notices 12
4.2 A$ Cash Facility 12
4.3 US$ Facility 12
4.4 Sterling Facility 13
4.5 NZ$ Cash Facility 13
4.6 Absorption 13
5. SELECTION OF FUNDING PERIODS 14
6. REPAYMENT AND PREPAYMENT 14
6.1 Repayment 14
6.2 Voluntary prepayments 14
6.3 Limitation on prepayments 15
6.4 Interest 15
6.5 Apportionment 15
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6.6 Cash cover 15
6.7 Special prepayments 15
7. REPAYMENT OF PRINCIPAL 16
7.1 Repayment or cash cover 16
7.2 Interest 16
7.3 Application 16
7.4 Repayment of cash cover 16
7.5 Notification of amount 17
8. A$ CASH FACILITY 17
8.1 Advance of Segment 17
8.2 Interest 17
8.3 Basis of Calculation of interest 17
8.4 Payment of interest 17
8.5 Netting off 17
9. STERLING FACILITY 18
9.1 Advance of Segment 18
9.2 Interest rate 18
9.3 Notification of rates and amounts 18
9.4 Basis of calculation of interest 18
9.5 Payment of interest 18
9.6 Market disturbance - Suspension Notice 18
9.7 Alternative basis 19
9.8 Netting off 19
9.9 Additional domestic Sterling costs 19
10. BILL FACILITY 20
10.1 Commitment 20
10.2 Requirements of Bills 20
10.3 Authority 21
10.4 Acceptance 21
10.5 Acceptance and Discount 21
10.6 Indemnity 22
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10.7 Cash cover 22
10.8 Netting off 22
10.9 Fixed rate discount option 22
11. EUROCURRENCY FACILITY 23
11.1 Advance of Segment 23
11.2 Notification of rates and amounts 23
11.3 Interest rate 23
11.4 Basis of calculation of interest 24
11.5 Payment of interest 24
11.6 Market disturbance - Suspension Notice 24
11.7 Alternative basis 24
11.8 Netting off 24
12. LC FACILITY 25
12.1 Issue 25
12.2 Form 25
12.3 Expiry date 25
12.4 Amount 25
12.5 Acceleration of Secured Financing 25
12.6 Payment of Secured Financings 25
12.7 Indemnity 26
12.8 Reinstatement of obligations 26
12.9 Obligations unconditional 26
13. US$ FACILITY 27
13.1 Advance of Segment 27
13.2 Notification of rates and amounts 27
13.3 Interest rate 28
13.4 Basis of calculation of interest 28
13.5 Payment of interest 28
13.6 Market disturbance - Suspension Notice 28
13.7 Alternative basis 28
13.8 Netting off 28
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14. NZ$ CASH FACILITY 29
14.1 Advance of Segment 29
14.2 Notification of rates and amounts 29
14.3 Interest rate 29
14.4 Basis of calculation of interest 29
14.5 Payment of interest 29
14.6 Market disturbance - Suspension Notice 30
14.7 Alternative basis 30
14.8 Netting off 30
15. PAYMENTS AND TAXATION 30
15.1 Time and place 30
15.2 No deduction 31
15.3 Payment to be made on Business Day 31
15.4 Appropriation where insufficient moneys available 31
15.5 Additional payments 31
15.6 Survival of obligations 31
15.7 Reimbursement 32
15.8 Indemnity against default in payment of absorbed Tax 32
16. CHANGES IN LAW 33
16.1 Increased costs 33
16.2 Minimisation 34
16.3 Survival of obligations 34
16.4 Absorption 34
17. ILLEGALITY 35
18. CONDITIONS PRECEDENT TO EACH SEGMENT 35
19. REPRESENTATIONS, WARRANTIES, COVENANTS AND EVENTS OF DEFAULT 36
19.1 Representations and Warranties 36
19.2 Trust Deed Covenants 36
19.3 Events of Default 36
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20. SET-OFF 37
20.1 Set-off 37
20.2 Currency exchange 37
21. INDEMNITIES 37
22. CURRENCY INDEMNITY 38
22.1 General 38
22.2 Liquidation 38
23. STAMP DUTIES 39
23.1 Borrowers to pay 39
23.2 FID etc included 39
23.3 Indemnity 39
24. EXPENSES 39
25. WAIVERS, REMEDIES CUMULATIVE 39
25.1 Waivers 39
25.2 Rights cumulative 40
26. SEVERABILITY OF PROVISIONS 40
27. SURVIVAL OF REPRESENTATIONS AND INDEMNITIES 40
27.1 Survival of representations 40
27.2 Continuing indemnities 40
28. MORATORIUM LEGISLATION 40
29. CONTROL ACCOUNTS 40
30. INTEREST ON OVERDUE AMOUNTS 41
30.1 Default interest 41
30.2 Rate 41
30.3 Basis of calculation 42
30.4 Interest on foreign currency amounts 42
30.5 Capitalisation 42
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30.6 Contingent amounts 42
30.7 Risk fee 42
31. FEES 43
32. ASSIGNMENTS 43
32.1 Assignments by Borrowers and Foster's Brewing Group 43
32.2 Assignment by Lender 43
32.3 Disclosure 43
32.4 Change of Lending Office 43
32.5 No increased costs 44
33. NOTICES 44
33.1 Notices 44
33.2 To Borrowers or Foster's Brewing Group 45
33.3 Facsimile transmissions 45
34. AUTHORISED OFFICERS 45
35. GOVERNING LAW 45
36. COUNTERPARTS 45
37. ACKNOWLEDGEMENT BY BORROWERS AND FOSTER'S BREWING GROUP 46
38. ATTORNEYS 46
SCHEDULE 1 47
Lending Offices 47
SCHEDULE 2 48
Additional domestic Sterling costs 48
SCHEDULE 3 50
Borrower Limits 50
ANNEXURE A 51
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Drawdown Notice 51
ANNEXURE B 54
Form of Letter of Credit Westpac Banking Corporation 54
ANNEXURE C 56
Verification Certificate 56
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DATE 21 March 1991
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PARTIES
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1. FBG TREASURY (AUST.) LIMITED (ACN 006 865 738) of 77 Southbank
Boulevard, Southbank, Melbourne, Victoria (TREASURY AUST.).
2. FBG TREASURY (UK) PLC of Montrose House, Chertsey Boulevard, Hanworth
Lane, Chertsey, Surrey, UK (TREASURY UK).
3. FBG TREASURY (USA) INC., of Suite 274, 103 Foulk Road, Wilmington,
Delaware (TREASURY USA)
4. FBG TREASURY (NZ) LIMITED of Level 1, Elder's House, 60 Khyber Pass
Road, Grafton, Auckland, New Zealand (TREASURY NZ).
5. FOSTER'S BREWING GROUP LIMITED (ACN 007 620 886) of 77 Southbank
Boulevard, Southbank, Melbourne, Victoria (FOSTER'S BREWING GROUP).
6. WESTPAC BANKING CORPORATION (ARBN 007 457 141) of 360 Collins Street,
Melbourne, Victoria (the LENDER).
RECITALS
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A Each Borrower and Foster's Brewing Group have requested the Lender to
provide the Borrowers with a facility under which financial
accommodation of up to a maximum amount of A$200,000,000 may be made
available to the Borrowers.
B Each of the Borrowers and Foster's Brewing Group is party to the FBG
Group Financing Trust Deed (the "Trust Deed") dated 21 February 1993
(as amended) which sets out certain of the terms and conditions which
apply to any financial accommodation which may be made available to
the Borrowers under this Agreement.
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IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
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1.1 DEFINITIONS
When used in this Agreement the following terms shall have the
following meanings unless the context otherwise requires.
A$ OR AUSTRALIAN DOLLARS means the lawful currency of Australia.
A$ CASH FACILITY means the facility provided under Clause 8.
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ABSORPTION COMPONENT means, in relation to the Eurocurrency Facility,
such part of any Segment in respect of which the Lender has elected, in
its absolute discretion and following a request in a Drawdown Notice
from Treasury Aust. to do so, to absorb Australian Withholding Tax
payable on the interest payable in relation to that Segment or part (up
to a maximum rate of 10% of the amount of interest payable) as such
part is reduced from time to time by prepayments or repayments under
this Agreement.
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 10.30 am 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 rate will be the rate
determined by the Lender to be its cost of funds.
Rates will be expressed as a yield per cent per annum to maturity.
BENEFICIARY means the beneficiary of a Letter of Credit.
BILL means a Bill of Exchange as defined in the Bills of Exchange Act 1909 which
is, or is to be, accepted under this Agreement.
BILL FACILITY means the facility provided under Clause 10.
BORROWER means Treasury Aust., Treasury UK, Treasury USA or Treasury NZ.
BORROWER LIMIT means at any time:
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(a) in relation to the Bill Facility, with respect to Treasury Aust., an
Australian dollar amount which is equal to the percentage of the
Commitment set out in the Third Schedule next to the name of Treasury
Aust., as varied from time to time in accordance with Clause 2.2 at
that time;
(b) in relation to the A$ Cash Facility, with respect to Treasury Aust.,
an Australian dollar amount which is equal to the percentage of the
Commitment set out in the Third Schedule next to the name of Treasury
Aust., as varied from time to time in accordance with Clause 2.2 at
that time;
(c) in relation to the Eurocurrency Facility, with respect to Treasury
Aust., an Australian dollar amount which is equal to the percentage of
the Commitment, set out in the Third Schedule next to the name of
Treasury Aust., as varied from time to time in accordance with Clause
2.2 at that time;
(d) in relation to the US$ Facility, with respect to Treasury USA, an
Australian dollar amount which is equal to the percentage of the
Commitment, set out in the Third Schedule next to the name of Treasury
USA, as varied from time to time in accordance with Clause 2.2 at that
time;
(e) in relation to the NZ$ Cash Facility, with respect to Treasury NZ, an
Australian dollar amount which is equal to the percentage of the
Commitment, set out in the Third Schedule next to the name of Treasury
NZ, as varied from time to time in accordance with Clause 2.2 at that
time;
(f) in relation to the Sterling Facility, with respect to Treasury UK, an
Australian dollar amount which is equal to the percentage of the
Commitment, set out in the Third Schedule next to the name of Treasury
UK, as varied from time to time in accordance with Clause 2.2 at that
time; or
(g) in relation to the LC Facility, with respect to each Borrower, an
Australian dollar amount which is equal to the percentage of the
Commitment, set out in the Third Schedule next to the name of that
Borrower, as varied from time to time in accordance with Clause 2.2 at
that time.
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 and the A$ Cash Facility, in
Melbourne; and
(ii) in relation to each of the Eurocurrency Facility, the US$
Facility, the Sterling Facility, the NZ$ Cash Facility and the LC
Facility, in London, New York, Auckland and Melbourne;
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(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, New York, Auckland and London; or
(c) for any other purpose, banks are open for business in Melbourne.
CASH RATE in relation to a Funding Period of a Segment means the rate
determined by the Lender at or about 11.00 am on the first day of the
Funding Period to be the interest rate payable on money market advances for
a term comparable to that Funding Period and in an amount comparable to the
principal amount of the Segment.
COMMITMENT means A$200,000,000 as reduced or cancelled under this
Agreement.
DRAWDOWN DATE means:
(a) in relation to the A$ Cash Facility, the US$ Facility, the Sterling
Facility, the NZ$ Cash Facility or the Eurocurrency 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 the relevant Bills
are or are to be accepted 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.
EUROCURRENCY FACILITY means the facility provided under Clause 11.
EXCHANGE RATE with respect to any currency on any date, means the Lender's
spot rate of exchange as at 10.00am 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.
EXCLUDED TAX means any Tax imposed by any jurisdiction on the net income of
the Lender as a consequence of the Lender being a resident of or organised
or doing business in that jurisdiction 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
(b) which is imposed as a result of the Lender being considered a resident
of or organised or doing business in that jurisdiction solely as a
result of it being a party to any Relevant Document or any transaction
contemplated by any Relevant Document,
and also, subject to Clause 18.4, includes any Australian Withholding Tax
required to be deducted or withheld from interest on any Segment or part of
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a Segment drawn under the Eurocurrency Facility utilising the Absorption
Component to the extent only that the rate of Australian Withholding Tax
does not exceed 10% of the gross amount of interest payable in respect of
that Segment or part.
FACILITY means the Bill Facility, the NZ$ Cash Facility, the Eurocurrency
Facility, the A$ Cash Facility, the US$ Facility, the Sterling Facility or
the LC Facility.
FEE LETTER means any letter from the Lender to Foster's Brewing Group
referred to in Clause 32.
FUNDING PERIOD means in relation to a Segment of:
(a) the Bill Facility, the term of the relevant Bills;
(b) the Eurocurrency Facility, the A$ Cash Facility, the NZ$ Cash
Facility, the US$ Facility or the Sterling 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.
LC FACILITY means the facility provided under Clause 12.
LENDING OFFICE means the Australian Lending Office, the US Lending Office,
the NZ Lending Office or the UK Lending Office.
LETTER OF CREDIT means an irrevocable letter of credit issued under Clause
12.1.
LIBOR in relation to a Funding Period of a Segment means:
(a) the rate determined by the Lender to be the arithmetic mean (rounded
upwards, if necessary, to the nearest 1/16th of 1%) of the rates
displayed on the Reuters screen:
(i) where the Segment is denominated in US dollars, LIBO page; or
(ii) where the Segment is denominated in Sterling, LIBP page, for a
term equivalent to that Funding Period at or about 11.00am
(London time) on the day on which rates are displayed for the
value date which is the first day of that Funding Period; or
(b) if:
(i) for any reason there are no rates displayed for the relevant
currency for a term equivalent to that Funding Period; or
(ii) the basis on which such rates displayed is changed and in the
opinion of the Lender they cease to reflect the Lender's cost of
funding to the same extent as at the date of this Agreement,
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then Libor will be the rate determined by the Lender to be the
average of the rates quoted to it by three leading banks selected
by it in the London Interbank Market at or about 11.00am (London
time):
(iii) two Business Days before the commencement of that Funding
Period for the making of deposits in relation to a Funding
Period of a Segment drawn or to be drawn under the
Eurocurrency Facility or the US$ Facility, in US dollars; or
(iv) on the date of the commencement of that Funding Period for
the making of deposits in relation to a Funding Period of a
Segment drawn or to be drawn under the Sterling Facility, in
Sterling,
with the Lender for a term comparable to that Funding Period.
That average will be rounded upwards (if necessary) to the
nearest 1/16th of 1%.
MARGIN means, in respect of a Segment of a Facility, the amount per cent
per annum set out in the relevant Fee Letter for that Facility.
NON-ABSORPTION COMPONENT means at any time in respect of any Segment of the
Eurocurrency Facility drawn by Treasury Aust., the principal amount of that
Segment (taking into account any prepayments or repayments) less the
Absorption Component (if any) for that Segment at that time.
NZ$ OR NEW ZEALAND DOLLARS means the lawful currency of New Zealand.
NZ 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 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 the Lender to be the average of the buying rates quoted
to the Lender by each of three New Zealand banks selected by the
Lender at or about that time on that date for a term equivalent to the
Funding Period. If there are no buying rates the rate will be the rate
determined by the Lender to be its average cost of funds in relation
to the NZ$ Cash Facility (as applicable).
Rates will be expressed as a yield per annum to maturity.
NZ$ CASH FACILITY means the facility provided under Clause 14.
NZ 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.
ORIGINAL DOLLAR AMOUNT means in relation to a Segment or part of a Segment
of:
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(a) (i) the Eurocurrency Facility, the NZ$ Cash Facility, the A$
Cash Facility, the US$ Facility or the Sterling Facility,
the principal amount (in the applicable currency) of the
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 nominated in the applicable Drawdown Notice, converted (except
where the relevant Letter of Credit or principal amount is denominated
in Australian dollars) to Australian dollars on, subject to Clause
1.6, the applicable Drawdown Date at the Exchange Rate for that
Drawdown Date; and
(b) the Bill Facility, the Australian dollar face 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 7.1(a)).
PRINCIPAL OUTSTANDING means the aggregate principal amount of all
outstanding Segments.
REPAYMENT DATE means 31 August 2003 or such later date as the parties may
agree.
SECURED FINANCING means accommodation provided to a Borrower by a
Beneficiary on the security of a Letter of Credit.
SAME DAY FUNDS means:
(a) in the case of Australian dollars, a bank cheque or other immediately
available funds;
(b) in the case of US dollars, US dollar funds settled through the New
York Clearing House Interbank Payments System (or in such other manner
of payment in US dollars as the Lender may specify to Foster's Brewing
Group as being customary at the time for settlement of international
transactions of the type contemplated by this Agreement); and
(c) in the case of any other currency, the manner of payment in the
currency concerned which the Lender specifies to Foster's Brewing
Group as being customary at the time for the settlement of
international transactions of the type contemplated by this Agreement
or, if no manner is specified, immediately available funds in that
currency.
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.
STERLING means the lawful currency of England, Scotland and Wales.
STERLING FACILITY means the facility provided under Clause 9.
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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 Original Dollar
Amount of all outstanding Segments.
US$ OR US DOLLARS means the lawful currency of the United States of
America.
US$ 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" 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.
1.3 TRUST DEED
(a) Each party to this Agreement acknowledges and agrees that the
financial accommodation made available or to be made available to the
Borrowers by the Lender under this Agreement is and shall be made
available on the terms and conditions contained in the Trust Deed in
addition to the terms and conditions of this Agreement.
(b) Unless defined otherwise in this Agreement, terms defined in the Trust
Deed bear the same meaning when used in this Agreement.
(c) The Lender confirms that it will be bound by any amendment agreed to,
or waiver given in respect of the provisions of the Trust Deed by the
Trustee in accordance with the instructions of the Majority Creditors
or all Creditors as the case requires in accordance with the terms of
the amendment or waiver as if it were party to the relevant amendment
agreement or had given the relevant waiver.
1.4 REPAYMENT AND PREPAYMENT
(a) In this Agreement references to "payable", "repayment" or "prepayment"
(and like expressions) of:
(i) all or part of a Segment of the LC Facility means payment to the
Lender in the relevant currency, of the whole or the relevant
portion (determined, where applicable, in accordance
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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;
(ii) 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; and
(iii) all or part of a Segment of the Eurocurrency Facility, the A$
Cash Facility, the NZ$ Cash Facility, the US$ Facility or the
Sterling Facility, means payment to the Lender in the relevant
currency of the principal amount of the relevant Segment or part
or, in the case of part of a Segment denominated in a currency
other than Australian dollars, the relevant amount determined in
accordance with paragraph (b).
(b) Where in this Agreement part of a Segment of the Eurocurrency
Facility, the NZ$ Cash Facility, the US$ Facility, the Sterling
Facility or the LC Facility denominated in a currency other than
Australian dollars is to be repaid or prepaid, the relevant Borrower
shall repay or prepay in the currency of the Segment the same fraction
of the principal amount of the Segment as the Original Dollar Amount
to be prepaid or repaid is of the Original Dollar Amount of the
Segment.
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 Eurocurrency Facility, the A$ Cash Facility, the NZ$ Cash
Facility, the US$ Facility or the Sterling 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.
1.6 ORIGINAL DOLLAR AMOUNT
If during the Funding Period for a Segment of the Eurocurrency Facility,
the US$ Facility, the NZ$ Cash Facility, the Sterling Facility or of the LC
Facility (if denominated in a currency other than Australian dollars):
(a) one or more Drawdown Dates occur; or
(b) one or more repayments under Clause 7.1(a) occur (each date on which
such a repayment occurs being a "Fluctuation Reduction Date"),
the Original Dollar Amount of that Segment for the balance of its Funding
Period shall (subject to this Clause 1.6) be the relevant face or principal
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amount of the Segment as nominated in the applicable Drawdown Notice,
converted to Australian dollars on that Drawdown Date or Fluctuation
Reduction Date at the Exchange Rate for that Drawdown Date or Fluctuation
Reduction Date (as the case may be).
2. COMMITMENT AND BORROWER LIMITS
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2.1 COMMITMENT
(a) Subject to this Agreement (including, without limitation, paragraph
(b) of this Clause) the Lender shall make:
(i) the Eurocurrency Facility, the Bill Facility and the A$ Cash
Facility available to Treasury Aust.;
(ii) the US$ Facility available to Treasury USA;
(iii) the Sterling Facility available to Treasury UK;
(iv) the NZ$ Cash Facility available to Treasury NZ; and
(v) the LC Facility available to any Borrower,
but so that the aggregate Original Dollar Amount of all outstanding
Segments will not at any time exceed the Commitment.
(b) The Lender shall not be obliged to make available the A$ Cash
Facility, the US$ Facility, the NZ$ Cash Facility or the Sterling
Facility unless:
(i) it determines in its absolute discretion it is able and willing
to do so; and
(ii) it has given a notice under Clause 4.2, 4.3, 4.4, or 4.5
respectively accordingly.
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 Original Dollar Amount of the Principal Outstanding of all
Segments of that Facility (other than any Segment which is 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, exceeds that
Borrower's Borrower Limit with respect to that Facility.
(b) (SPECIFICATION OF BORROWER LIMITS): Subject to paragraph (c):
(i) each Borrower shall have made its initial specification as to its
Borrower Limit as set out in the Third Schedule;
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FACILITY AGREEMENT ARTHUR ROBINSON
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(ii) on giving not less than 5 Business Days' notice to the Lender,
Treasury Aust. may vary any specification made by it under this
paragraph. Such variation shall have effect in relation to
Segments made available after the expiry of that 5 Business
Days; and
(iii) on giving not less than 30 Business Days' notice to the Lender,
Treasury USA, Treasury NZ or Treasury UK may vary any
specification made by it under this paragraph. Such variation
shall have effect in relation to Segments made available after
the expiry of that 30 Business Days.
(c) (MAXIMUM BORROWER LIMITS): No Borrower may specify a Borrower Limit
under sub-paragraph (i) or (ii) of paragraph (b):
(i) in relation to any Facility, that is less than the greatest
aggregate principal amount of all Segments of that Facility
provided by the Lender for the account of that Borrower,
outstanding at any time; or
(ii) which when aggregated with the Borrower Limits of each other
Borrower, exceeds the Commitment.
2.3 ABSORPTION COMPONENT
Subject to this Agreement, the Lender shall absorb Australian Withholding
Tax (up to a maximum rate of 10% of the amount of interest payable) payable
on interest on such Segments of the Eurocurrency Facility drawn by Treasury
Aust. as may be requested by Treasury Aust. in the applicable Drawdown
Notice and agreed by the Lender in its absolute discretion.
2.4 CANCELLATION AT END OF AVAILABILITY PERIOD
At the close of business on the last day of the Availability Period the
Commitment shall be cancelled.
2.5 CANCELLATION DURING AVAILABILITY PERIOD
Foster's Brewing Group may from time to time on giving not less than 7
Business 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 in a minimum of A$10,000,000 and in an integral multiple of
A$10,000,000.
3. REVIEW
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The parties may at any time agree to extend the Repayment Date.
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FACILITY AGREEMENT ARTHUR ROBINSON
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4. DRAWDOWN NOTICES
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4.1 DRAWDOWN NOTICES
Whenever a Borrower wishes to make a drawing it or Foster's Brewing Group
on its behalf shall give to the Lender a Drawdown Notice substantially in
the form of Annexure A, to be received by the Lender not later than
11.00am:
(a) where it requests a drawing under the Bill Facility, the A$ Cash
Facility or, in relation to Treasury Aust. only, the LC Facility,
three;
(b) where it requests a drawing under the Eurocurrency Facility, or the
NZ$ Cash Facility, five; or
(c) where it requests a drawing under the Sterling Facility, the US$
Facility or, in relation to each of Treasury UK and Treasury USA, the
LC Facility, five,
Business Days prior to the proposed Drawdown Date (which shall be a
Business Day), which Drawdown Notice shall, subject to Clauses 4.2, 4.3,
4.4 and 4.5, be irrevocable.
4.2 A$ CASH FACILITY
(a) If in a Drawdown Notice Treasury Aust. or Foster's Brewing Group on
its behalf requests a drawing under the A$ Cash Facility the Lender
will no later than 11.00 am on the Business Day following the date of
receipt by it of the Drawdown Notice notify Foster's Brewing Group in
writing whether it agrees to provide the requested Segment, or part of
the requested Segment and, if the Lender does, in its absolute
discretion, agree to provide all or part of the requested Segment, the
principal amount of each Segment or part it agrees to provide.
(b) Any Drawdown Notice in relation to which Foster's Brewing Group
receives a notice from the Lender under paragraph (a) shall be deemed
to be varied so as to request a principal amount equal to the
principal amount the Lender has agreed in that notice to provide but
shall otherwise be irrecoverable.
4.3 US$ FACILITY
(a) If in a Drawdown Notice Treasury USA or Foster's Brewing Group on its
behalf requests a drawing under the US$ Facility the Lender will no
later than 11.00 am on the fifth Business Day following the date of
receipt by it of the Drawdown Notice notify Foster's Brewing Group in
writing whether it agrees to provide the requested Segment, or part of
the requested Segment and, if the Lender does, in its absolute
discretion, agree to provide all or part of the requested Segment, the
Original Dollar Amount of each Segment or part it agrees to provide.
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FACILITY AGREEMENT ARTHUR ROBINSON
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(b) Any Drawdown Notice in relation to which Foster's Brewing Group
receives a notice from the Lender under paragraph (a) shall be deemed
to be varied so as to request an Original Dollar Amount equal to the
Original Dollar Amount the Lender has agreed in that notice to provide
but shall otherwise be irrevocable.
4.4 STERLING FACILITY
(a) If in a Drawdown Notice Treasury UK or Foster's Brewing Group on its
behalf requests a drawing under the Sterling Facility the Lender will
no later than 11.00 am on the fifth Business Day following the date of
receipt by it of the Drawdown Notice notify Foster's Brewing Group in
writing whether it agrees to provide the requested Segment, or part of
the requested Segment and, if the Lender does, in its absolute
discretion, agree to provide all or part of the requested Segment, the
Original Dollar Amount of each Segment or part it agrees to provide.
(b) Any Drawdown Notice in relation to which Foster's Brewing Group
receives a notice from the Lender under paragraph (a) shall be deemed
to be varied so as to request an Original Dollar Amount equal to the
Original Dollar Amount the Lender has agreed in that notice to provide
but shall otherwise be irrevocable.
4.5 NZ$ CASH FACILITY
(a) If in a Drawdown Notice Treasury NZ or Foster's Brewing Group on its
behalf requests a drawing under the NZ$ Cash Facility the Lender will
no later than 11.00 am on the fifth Business Day following the date of
receipt by it of the Drawdown Notice notify Foster's Brewing Group in
writing whether it agrees to provide the requested Segment, or part of
the requested Segment and, if the Lender does, in its absolute
discretion, agree to provide all or part of the requested Segment, the
Original Dollar Amount of each Segment or part it agrees to provide.
(b) Any Drawdown Notice in relation to which Foster's Brewing Group
receives a notice from the Lender under paragraph (a) shall be deemed
to be varied so as to request an Original Dollar Amount equal to the
Original Dollar Amount the Lender has agreed in that notice to provide
but shall otherwise be irrevocable.
4.6 ABSORPTION
(a) If in a Drawdown Notice Treasury Aust. requests the Lender to absorb
Australian Withholding Tax payable on interest on one or more Segments
of the Eurocurrency Facility drawn by Treasury Aust. the Lender will
no later than 11.00 am on the day following the date of receipt by it
of the Drawdown Notice notify Treasury Aust. whether it agrees to
absorb such Australian Withholding Tax.
(b) If the Lender notifies Treasury Aust. that it does not agree to absorb
such Australian Withholding Tax Treasury Aust. may by notice to
the
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FACILITY AGREEMENT ARTHUR ROBINSON
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Lender given not later than 11.00 am on the day following such notice
from the Lender revoke the Drawdown Notice is so far as it relates to
the relevant Segment or Segments of the Eurocurrency Facility. If
notice of revocation is not received by the Lender by 11.00 am on that
day the Segment will, subject to this Agreement, be provided on the
Drawdown Date specified in the Drawdown Notice.
5. SELECTION OF FUNDING PERIODS
--------------------------------------------------------------------------------
(a) Subject to the subsequent provisions of this Clause, Funding Periods
selected by a Borrower (other than Treasury NZ) shall be of a period
not less than 30 days and not more than 185 days or, if required, such
other period as the Lender may agree to enable consolidation of
Segments of the same Facility and Funding Periods selected by Treasury
NZ in respect of the NZ$ Cash Facility shall be for a period of 1, 2,
3 or 6 months or such other period as Treasury NZ and the Lender may
agree from time to time.
(b) Should a Funding Period end on a day which is not a Business Day, such
Funding Period shall be extended to the next Business Day in the same
calendar month or, if none, the preceding Business Day.
(c) No Funding Period shall extend beyond the Repayment Date.
(d) If a Borrower fails to select Funding periods complying with this
Clause the Lender may vary any Drawdown Notice to ensure compliance.
(e) No Funding Period of a Segment of the A$ Cash Facility shall be of
more than 30 days.
6. REPAYMENT AND PREPAYMENT
--------------------------------------------------------------------------------
6.1 REPAYMENT
Subject to Clauses 8.5, 9.8, 10.8, 11.8, 13.8, and 14.8, 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 VOLUNTARY PREPAYMENTS
(a) On giving not less than 7 days' prior irrevocable notice to the Lender
a Borrower may prepay all or part of the Principal Outstanding.
(b) Unless the Lender otherwise agrees, prepayment of part only of a
Segment may only be made in an Original Dollar Amount of a minimum of
A$10,000,000 and an integral multiple of A$10,000,000 and so that as
far as practicable the remaining part will comply with Clause
8.1(b)(i), 9.1(b)(i), 10.1(b)(i), 11.1(b)(i), 12.4, 13.1(b)(i) and
14.1(b)(i) (as applicable).
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FACILITY AGREEMENT ARTHUR ROBINSON
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6.3 LIMITATION ON PREPAYMENTS
No Borrower may prepay all or any part of the Principal Outstanding except
in accordance with this Agreement.
6.4 INTEREST
Each Borrower shall pay any interest accrued on any amount prepaid under
this Agreement at the time of such prepayment.
6.5 APPORTIONMENT
Prepayments under Clause 6.2 shall be applied as between the Absorption
Component and the Non-Absorption Component in the manner determined by the
Lender, which determination shall override any appropriation made by the
Borrower.
6.6 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 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 by way of cash cover for the
Lender's relevant liability (contingent or otherwise) in respect of
the relevant Letter of Credit or Bills and the provisions of Clause
5.3(c) of the Trust Deed and, if subsequent to such prepayment the
Lender or the Trustee has exercised its rights under Clause 5.2(A) or
(B) of the Trust Deed, Clauses 5.3(d), (e) and (f) of the Trust Deed
shall apply to such amount as if, in the case of paragraph (c), the
reference to "this Deed including, without limitation, under paragraph
(a) or (b) of this Clause" were a reference to this Clause 6.
(b) Unless under paragraph (a) the provisions of Clauses 5.3(d), (e) and
(f) of the Trust Deed apply to any amount of cash cover provided under
paragraph (a) in respect of a Segment, the Lender shall repay the
amount by which that amount of cash cover (together with interest on
that amount) exceeds the total amount paid or payable by the Lender
under the Bills or Letters of Credit comprising such Segment, to the
relevant Borrower on the last day of the Funding Period for that
Segment.
6.7 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 has entered into this Agreement
and made the Facilities available to the Borrowers in reliance on Clause
5.5 of the Trust Deed.
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FACILITY AGREEMENT ARTHUR ROBINSON
& HEDDERWICKS
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7. REPAYMENT OF PRINCIPAL
--------------------------------------------------------------------------------
7.1 REPAYMENT OR CASH COVER
If on any day the Principal Outstanding (converted in the case of Segments
denominated in a currency other than Australian dollars to Australian
dollars on that day at the Exchange Rate) (the "New Principal") is greater
than 105% of the Commitment and on each of the following four consecutive
Business Days the New Principal (on that day) is greater than 105% of the
Commitment, then the Borrowers shall on the second Business Day after the
last of such four consecutive Business Days:
(a) repay such Segments and/or parts of Segments in their respective
currencies in such aggregate principal amounts as, converted to
Australian dollars, if necessary, at the time of the repayment (at the
Exchange Rate), equals the difference between the New Principal on the
last of such four consecutive Business Days and the Commitment; or
(b) deposit with the Lender by way of cash cover for the liabilities of
the Borrowers to the Lender under this Agreement an amount, in
Australian dollars, equal to the difference between the New Principal
on the last of such four consecutive Business Days and the Commitment.
7.2 INTEREST
All amounts paid to the Lender by way of cash cover under this Clause 7
(and any interest on such amounts) shall accrue and be credited interest at
a rate and in the manner the Lender determines would apply to deposits at
call in accordance with its normal procedures.
7.3 APPLICATION
Without limiting any other provision of any Relevant Document the Lender
may at any time after the occurrence of an Event of Default which would
entitle the Lender or the Trustee to make a declaration under Clause 5.2(A)
or (B) of the Trust Deed apply any such cash cover and/or any such interest
in payment of any Guaranteed Moneys then payable by any Borrower to the
Lender.
7.4 REPAYMENT OF CASH COVER
Any amount (or interest on such amount) held by way of cash cover under
this Clause 7 shall be repaid to the Borrower which deposited it on the
Second Business Day following the date on which the New Principal has been
not greater than the Commitment for a period of five consecutive Business
Days provided no Event of Default has occurred and, if an Event of Default
which would entitle the Lender or the Trustee to make a declaration under
Clause 5.2(A) or (B) of the Trust Deed has occurred, when all Guaranteed
Moneys have been fully and finally discharged.
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FACILITY AGREEMENT ARTHUR ROBINSON
& HEDDERWICKS
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7.5 NOTIFICATION OF AMOUNT
The Lender shall notify Foster's Brewing Group of the amount of the New
Principal (on any day) as soon as it is ascertained whenever reasonably
requested to do so by Foster's Brewing Group.
8. A$ CASH FACILITY
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8.1 ADVANCE OF SEGMENT
(a) Subject to this Agreement, whenever Treasury Aust. requests a Segment
of the A$ Cash Facility under a Drawdown Notice, the Lender will
through its Australian Lending Office make available that Segment to
the account specified in the relevant Drawdown Notice not later than
11.00am on the relevant Drawdown Date in Same Day Funds in Australian
dollars.
(b) The principal amount of each Segment of the A$ Cash Facility shall be
a minimum of:
(i) A$500,000; or
(ii) the Undrawn Commitment,
and shall not cause a breach of the limits in Clause 2.1.
8.2 INTEREST
Interest shall accrue from day to day on each Segment of the A$ Cash
Facility for each Funding Period at the rate per annum determined by the
Lender to be the aggregate of the Margin and the Cash Rate.
8.3 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).
8.4 PAYMENT OF INTEREST
Except where this Agreement provides otherwise, Treasury Aust. shall pay
such accrued interest in Australian dollars on the last day of the relevant
Funding Period.
8.5 NETTING OFF
If Treasury Aust. requests a new Segment of the A$ Cash Facility on the
last day of a Funding Period of an old Segment of that Facility, then only
the net amount between:
(a) the funds required to be provided by the Lender for the account of
Treasury Aust. in relation to that new Segment; and
(b) the funds payable by Treasury Aust. for the account of the Lender by
way of repayment of the old Segment,
need be paid or made available, as the case may be.
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FACILITY AGREEMENT ARTHUR ROBINSON
& HEDDERWICKS
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9. STERLING FACILITY
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9.1 ADVANCE OF SEGMENT
(a) Subject to this Agreement, whenever Treasury UK requests a Segment of
the Sterling 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
(London time) on the relevant Drawdown Date in Same Day Funds in
Sterling.
(b) The principal amount of each Segment of the Sterling Facility shall be
a minimum of:
(i) an Original Dollar Amount of A$1,000,000 and an integral multiple
of A$1,000,000; or
(ii) the Undrawn Commitment,
and shall not cause a breach of the limits in Clause 2.1. The number
of outstanding Segments advanced pursuant to this Clause 9, shall at
no time exceed 10.
9.2 INTEREST RATE
Interest shall accrue from day to day on each Segment of the Sterling
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.
9.3 NOTIFICATION OF RATES AND AMOUNTS
The Lender shall notify Treasury UK of the Exchange Rate, interest rates
and amounts of currency determined by it under this Clause as soon as they
are ascertained.
9.4 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).
9.5 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.
9.6 MARKET DISTURBANCE - SUSPENSION NOTICE
Whenever, prior to the commencement of a Funding Period of a Segment of the
Sterling 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
during such Funding Period by deposits obtained in the relevant interbank
market, then
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FACILITY AGREEMENT ARTHUR ROBINSON
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the Lender shall promptly give a notice (a "Suspension Notice") to Treasury
UK.
9.7 ALTERNATIVE BASIS
Upon the giving of a Suspension Notice relating to a Segment of the
Sterling Facility requested in a Drawdown Notice, then:
(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.
9.8 NETTING OFF
If Treasury UK requests a new Segment of the Sterling Facility on the last
day of a Funding Period of an old Segment of that Facility, then only the
net amount between:
(a) the funds required to be provided by the Lender for the account of
Treasury UK in relation to that new Segment; and
(b) the funds payable by Treasury UK for the account of the Lender by way
of repayment of the old Segment,
need be paid or made available, as the case may be.
9.9 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, it shall
pay the additional amount advised by the Lender to be the direct or
indirect costs of complying with the requests or requirements of the
Bank of England or other competent authority in relation to monetary
controls or liquidity requirements with respect to the funding of such
amount.
(b) Such additional amount shall be determined by the Lender in accordance
with the Second Schedule, as amended by the Lender if there is any
change in relevant requirements.
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FACILITY AGREEMENT ARTHUR ROBINSON
& HEDDERWICKS
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10. BILL FACILITY
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10.1 COMMITMENT
(a) Subject to this Agreement, the Lender shall at the option of Treasury
Aust.:
(i) accept Bills drawn by Treasury Aust. expressed to mature not
later than the Repayment Date; and
(ii) if so requested by Treasury Aust., discount such Bills.
(b) The principal amount of each Segment of the Bill Facility shall be a
minimum of:
(i) A$10,000,000; or
(ii) the Undrawn Commitment,
and shall not cause a breach of the limits in Clause 2.
10.2 REQUIREMENTS 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 expressed to be payable at Level 10, 360 Collins
Street, Melbourne or such other office of the Lender as the Lender
shall notify Treasury Aust. from time to time.
(b) The face amount of each Bill shall to the extent possible be A$100,000
or such other amount as the Lender and Treasury Aust. may agree.
(c) The term of each Bill shall be the Funding Period of the relevant
Segment.
(d) Each Bill shall be:
(i) where the Lender is requested to accept and discount Bills, drawn
by Treasury Aust. and signed by an Authorised Officer of the
Borrower or, if Treasury Aust. so requests, by an Authorised
Officer of the Lender on behalf of Treasury Aust., and completed
so that the space reserved for the name of the payee is left
blank, in which case Treasury Aust. authorises the Lender to
complete the Bill by inserting as payee the name of the Lender;
or
(ii) where the Lender is requested to accept Bills only, drawn by
Treasury Aust. and signed by its Authorised Officer or, if
Treasury Aust. so requests, by an Authorised Officer of the
Lender and payable to Treasury Aust. and endorsed by Treasury
Aust. for delivery to the proposed purchaser of the Bill.
(e) If necessary, Treasury Aust. shall cause each Bill to be stamped with
any applicable stamp duty.
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FACILITY AGREEMENT ARTHUR ROBINSON
& HEDDERWICKS
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10.3 AUTHORITY
Treasury Aust. authorises the Lender, upon receipt by the Lender of a
Drawdown Notice, to prepare, sign (by its Authorised Officer) as the case
may require, complete and deliver Bills in accordance with this Clause 10
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.
10.4 ACCEPTANCE
(a) The Lender shall on each day that it is requested to accept Bills
under this Clause:
(i) accept the Bills;
(ii) insert as payee Treasury Aust. and, if authorised to do so in
the relevant Drawdown Notice, have one of its Authorised
Officers endorse the Bills on behalf of Treasury Aust.; and
(iii) hand the Bills to the person nominated in the relevant Drawdown
Notice or, if the Lender has agreed to do so, purchase or
arrange the sale of the Bills as requested in the relevant
Drawdown Notice.
(b) Treasury Aust. shall on each such 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.
10.5 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 10.8) pay in Same Day
Funds, not later than 11:00 am on that Drawdown Date to the account
specified by Treasury Aust. 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;
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FACILITY AGREEMENT ARTHUR ROBINSON
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(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 10; and
(iv) any other amount owing by Treasury Aust. to the Lender under
this Agreement but unpaid.
10.6 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 10.7, Treasury Aust.
shall not be required to pay any amount in excess of the face amount of the
relevant Bill to the extent the relevant liability was incurred as a result
of the fraud or wilful default of the Lender.
10.7 CASH COVER
As between the Lender and Treasury Aust., Treasury Aust. shall be primarily
liable in respect of all Bills and accordingly:
(a) the liability of Treasury Aust. with respect to any 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 10.8 Treasury Aust. shall, not later than 11.00am on
each day on which an Bill accepted or accepted and discounted on its
account falls due for payment, pay to the Lender an amount equal to
the face amount of such Bill.
10.8 NETTING OFF
If Treasury Aust. requests a new Segment under which it requests the Lender
to accept and discount Bills on the last day of a Funding Period of an old
Segment, under which the Lender had accepted and discounted Bills then only
the net amount between:
(a) the funds required to be provided by the Lender for the account of
Treasury Aust. in relation to that new Segment; and
(b) the funds payable by the Borrower for the account of the Lender by way
of repayment of the old Segment,
need be paid or made available, as the case may be.
10.9 FIXED RATE DISCOUNT OPTION
(a) In a Drawdown Notice Treasury Aust. may request the Lender to inform
it of the fixed rate (expressed as a yield to maturity per cent per
annum) at which the Lender would discount a series of Bills with terms
selected by the Lender having an aggregate face amount nominated in
the Drawdown Notice during the period nominated in the Drawdown
Notice. Such period shall be not less than 3 months
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FACILITY AGREEMENT ARTHUR ROBINSON
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nor more than 12 months and end not later than the Repayment Date.
(b) The Lender shall inform Treasury Aust. of the fixed rate at which it
would discount such Bills not later than 9.45am on the relevant date
on which it is requested to accept and discount Bills.
(c) If Treasury Aust. wishes the Lender so to discount such Bills it
shall, not later than 10.15am on that day, inform the Lender and:
(i) the Lender will be obliged, subject to this Agreement, to
discount such Bills at that rate; and
(ii) during the period nominated in the relevant Drawdown Notice,
Treasury Aust. will be obliged to prepare, sign (by its
Authorised Officer) as drawer, complete and deliver Bills having
terms selected by the Lender so that at all times during that
period there are Bills outstanding having an aggregate face
amount equal to the amount nominated in the Drawdown Notice.
11. EUROCURRENCY FACILITY
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11.1 ADVANCE OF SEGMENT
(a) Subject to this Agreement, whenever Treasury Aust. requests a Segment
utilising the Eurocurrency Facility under a Drawdown Notice, the
Lender will through such Lending Office as it may elect 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 Same Day Funds in US dollars.
(b) The principal amount of each Segment drawn under the Eurocurrency
Facility shall be a minimum of:
(i) an Original Dollar amount of A$1,000,000 and an integral multiple
of A$1,000,000; or
(ii) the Undrawn Commitment,
and shall not cause a breach of the limit in Clause 2.1(a).
11.2 NOTIFICATION OF RATES AND AMOUNTS
The Lender shall notify Treasury Aust. of the Exchange Rate, interest rates
and amounts of currency determined under this Clause as soon as they are
ascertained.
11.3 INTEREST RATE
Interest shall accrue from day to day on each Segment of the Eurocurrency
Facility for each Funding Period at the rate per annum determined by the
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Lender to be the aggregate of the Margin and LIBOR for such Funding Period.
11.4 BASIS OF CALCULATION OF INTEREST
Such interest 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 Aust. shall pay
such accrued interest in US dollars on the last day of the relevant Funding
Period.
11.6 MARKET DISTURBANCE - SUSPENSION NOTICE
Whenever, prior to the commencement of a Funding Period of a Segment of the
Eurocurrency 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
during such Funding Period by deposits obtained in the relevant interbank
market, then the Lender shall promptly give notice (a "Suspension Notice")
to Treasury Aust.
11.7 ALTERNATIVE BASIS
Upon the giving of a Suspension Notice relating to a Segment of the
Eurocurrency Facility requested in a Drawdown Notice, then:
(a) (CONSULTATION): the Lender shall consult in good faith with Treasury
Aust. 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.
11.8 NETTING OFF
If Treasury Aust. requests a new Segment of the Eurocurrency Facility on
the last day of a Funding Period of an old Segment of that Facility, then
only the net amount between:
(a) the funds required to be provided by the Lender for the account of
Treasury Aust. in relation to that new Segment; and
(b) the funds payable by Treasury Aust. for the account of the Lender by
way of repayment of the old Segment,
need be paid or made available, as the case may be.
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12. LC FACILITY
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12.1 ISSUE
Subject to this Agreement, whenever a Borrower requests a Segment utilising
the LC Facility the Lender 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.
12.2 FORM
Each Letter of Credit shall be substantially in the form of Annexure B.
12.3 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.
12.4 AMOUNT
(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.
12.5 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 Trustee or
the Lender 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.
12.6 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.
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12.7 INDEMNITY
(a) (PAYMENT): Each Borrower shall on demand pay to the Lender all amounts
paid or required to be paid by the Lender under any Letter of Credit
issued for its account.
(b) (GENERAL INDEMNITY): Each Borrower shall on demand indemnify the
Lender from and against all loss, liabilities, damage, costs, charges
and expenses suffered or incurred by the Lender (otherwise than
arising solely as a result of a default by the Lender) in relation to
or arising out of any claim made or purported to be made under any
Letter of Credit issued for its account or 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):
(i) Each Borrower acknowledges that although the Lender 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, the relevant Borrower
shall pay to the Lender the amount of the currency which the
Lender 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.
12.8 REINSTATEMENT OF OBLIGATIONS
If all or any part of any amount paid by a Borrower to the Lender under
this Clause 12 is required to be surrendered, released or repaid by the
Lender for any reason whatsoever, then the Lender shall be entitled to all
rights it would have had if such sum had never been paid by the relevant
Borrower.
12.9 OBLIGATIONS UNCONDITIONAL
Each Borrower agrees that its obligations under Clause 12.7 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 to enquire whether any cable or telex has
been inaccurately transmitted or received from any cause or has been
sent by an unauthorised person;
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(c) the impossibility or illegality of performance of or any invalidity of
or affecting any Relevant Document, any Secured Financing or any
Letter of Credit or any other agreement;
(d) any act of any Governmental Agency or arbitrator, including any law,
judgment, decree or order at any time in effect in any jurisdiction
affecting any of the terms of any Relevant Document, any Secured
Financing or any other document delivered pursuant to any Relevant
Document;
(e) any failure to obtain any Authorisation necessary or appropriate in
connection with this Agreement; or
(f) any other cause or circumstance, foreseen or unforeseen, whether
similar or dissimilar to any of the above affecting any Relevant
Document, any Secured Financing or any transaction under any Relevant
Document,
and the Lender shall not be liable or under any duty to enquire in respect
of any of the matters mentioned in the preceding paragraphs of this Clause.
13. US$ FACILITY
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13.1 ADVANCE OF SEGMENT
(a) Subject to this Agreement, whenever Treasury USA requests a Segment
utilising the US$ Facility under a Drawdown Notice, the Lender will
through its US Lending Office make available that Segment to the
account specified in the relevant Drawdown Notice not later than
11.00am (New York time) on the relevant Drawdown Date in Same Day
Funds in US dollars.
(b) The principal amount of each Segment drawn under the US$ Facility
shall be a minimum of:
(i) an Original Dollar Amount of A$1,000,000 and an integral multiple
of A$1,000,000; or
(ii) the Undrawn Commitment,
and shall not cause a breach of the limits in Clause 2.1. The number
of outstanding Segments advanced pursuant to this Clause 13, shall at
no time exceed 10.
13.2 NOTIFICATION OF RATES AND AMOUNTS
The Lender shall notify Treasury USA of the Exchange Rate, interest rates
and amounts of currency determined under this Clause as soon as they are
ascertained.
<PAGE>
13.3 INTEREST RATE
Interest shall accrue from day to day on each Segment of the US$ 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.
13.4 BASIS OF CALCULATION OF INTEREST
Such interest shall be computed on the basis of the actual number of days
elapsed and 360 days.
13.5 PAYMENT OF INTEREST
Except where this Agreement provides otherwise, Treasury USA shall pay such
accrued interest in US dollars on the last day of the relevant Funding
Period.
13.6 MARKET DISTURBANCE - SUSPENSION NOTICE
Whenever, prior to the commencement of a Funding Period of a Segment of the
US$ 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
during such Funding Period by deposits obtained in the relevant interbank
market, then the Lender shall promptly give a notice (a "Suspension
Notice") to Treasury USA.
13.7 ALTERNATIVE BASIS
Upon the giving of a Suspension Notice relating to a Segment of the US$
Facility requested in a Drawdown Notice, then:
(a) (CONSULTATION): the Lender shall consult in good faith with Treasury
USA 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.
13.8 NETTING OFF
If Treasury USA requests a new Segment of the US$ 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
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(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. NZ$ CASH FACILITY
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14.1 ADVANCE OF SEGMENT
(a) Subject to this Agreement, whenever Treasury NZ requests a Segment
utilising the NZ$ Cash Facility under a Drawdown Notice, the Lender
will through its NZ Lending Office make available that Segment to the
account specified in the relevant Drawdown Notice not later than
11.00am (Auckland time) on the relevant Drawdown Date in Same Day
Funds in NZ dollars.
(b) The principal amount of each Segment drawn under the NZ$ Cash Facility
shall be a minimum of:
(i) an Original Dollar Amount of A$1,000,000 and an integral multiple
of A$1,000,000; or
(ii) the Undrawn Commitment,
and shall not cause a breach of the limits in Clause 2.1. The number
of outstanding Segments advanced pursuant to this Clause 14, shall at
no time exceed 10.
14.2 NOTIFICATION OF RATES AND AMOUNTS
The Lender shall notify Treasury NZ of the Exchange Rate, interest rates
and amounts of currency determined under this Clause as soon as they are
ascertained.
14.3 INTEREST RATE
Interest shall accrue from day to day on each Segment of the NZ$ Cash
Facility for each Funding Period at the rate per annum determined by the
Lender to be the aggregate of the Margin and the NZ Bank Bill Rate for such
Funding Period.
14.4 BASIS OF CALCULATION OF INTEREST
Such interest shall be computed on the basis of the actual number of days
elapsed and 365 or 366 days (as the case may be).
14.5 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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14.6 MARKET DISTURBANCE - SUSPENSION NOTICE
Whenever, prior to the commencement of a Funding Period of a Segment of the
NZ$ Cash 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
during such Funding Period by deposits obtained in the relevant interbank
market, then the Lender shall promptly give a notice (a "Suspension
Notice") to Treasury NZ.
14.7 ALTERNATIVE BASIS
Upon the giving of a Suspension Notice relating to a Segment of the NZ$
Cash Facility requested in a Drawdown Notice, then:
(a) (CONSULTATION): the Lender shall consult in good faith with Treasury
NZ 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.
14.8 NETTING OFF
If Treasury NZ requests a new Segment of the NZ$ Cash Facility on the last
day of a Funding Period of an old Segment of that Facility, then only the
net amount between:
(a) the funds required to be provided by the Lender for the account of
Treasury NZ in relation to that new Segment; and
(b) the funds payable by Treasury NZ for the account of the Lender by way
of repayment of the old Segment,
need be paid or made available, as the case may be.
15. PAYMENTS AND TAXATION
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15.1 TIME AND PLACE
Unless this Agreement provides otherwise, each Borrower and Foster's
Brewing Group 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 from time to time in respect of such
currency.
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15.2 NO DEDUCTION
Unless this Agreement provides otherwise, each Borrower and Foster's
Brewing Group 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 (as the case
may be) is obliged to deduct Taxes), but without prejudice to Clause 15 or
otherwise.
15.3 PAYMENT TO BE MADE ON BUSINESS DAY
Whenever any payment becomes due on a day which is not a Business day, the
due date shall be the next Business Day in the same calendar month or, if
none, the preceding Business Day and interest shall be adjusted
accordingly.
15.4 APPROPRIATION WHERE INSUFFICIENT MONEYS AVAILABLE
Amounts received by the Lender shall be appropriated as between principal,
interest and other amounts and, if applicable, as between Absorption
Component and Non-Absorption Component as the Lender determines. Any such
appropriation shall override any appropriation made by a Borrower or
Foster's Brewing Group.
15.5 ADDITIONAL PAYMENTS
Whenever any Borrower or Foster's Brewing Group is obliged to make a
deduction in respect of Tax from any payment to be made under this
Agreement, 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 official receipts or other documentation
acceptable to the Lender evidencing payment of such amount; and
(c) unless the Tax is an Excluded Tax, indemnify on demand the Lender
against such Tax and any amounts recoverable from the Lender in
respect of such Tax, and pay for the account of the Lender such
additional amounts as the Lender may determine to be necessary to
ensure that the lender 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 waive any statutory right to recover any such amounts
from the Lender.
15.6 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 any Relevant Document.
<PAGE>
15.7 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 in respect of
amounts payable under Clause 15.5 ("Additional Taxes"); and
(ii) the Lender in its absolute discretion decides that it has
received any clearly identifiable credit against or relief or
remission for the amount or repayment of, any Tax paid or payable
by it in respect of or calculated with reference to the deduction
or withholding giving rise to such Additional Tax,
then to the extent that it determines that a payment to the Borrower
or Foster's Brewing Group (as the case may be) can be made without
prejudice to the retention of the amount of such Credit, relief,
remission or repayment, the Lender shall promptly pay to the Borrower
or 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
to arrange its Tax affairs in any manner it thinks fit. In particular,
the Lender shall not be under any obligation to claim any credit,
relief, remission or repayment in respect of the amount of any
Additional Taxes in priority to any other credit, relief, remission or
repayment available to it or to disclose to any Borrower or Foster's
Brewing Group any information regarding its tax affairs or tax
computations.
15.8 INDEMNITY AGAINST DEFAULT IN PAYMENT OF ABSORBED TAX
Whenever:
(a) Treasury Aust. fails to comply with Clause 15.5(a) or (b) in respect
of Australian Withholding Tax deducted by Treasury Aust.; and
(b) as a result the Lender is not able to obtain relief against its income
Tax in respect of that Australian Withholding Tax in the same income
Tax year and amount as it would have had Treasury Aust. so complied,
then:
(c) the Lender will notify Treasury Aust. as soon as it becomes aware of
the same;
(d) that amount of Australian Withholding Tax will not be an Excluded Tax
for the purposes of this Agreement; and
(e) on demand Treasury Aust. shall pay any further amount necessary to
ensure that the Lender receives in aggregate the amount that it would
have received had the Australian Withholding Tax not been an Excluded
Tax together with interest on that amount from the date it
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FACILITY AGREEMENT ARTHUR ROBINSON
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would have been payable, determined in accordance with Clause 31
(Interest on overdue amounts).
16. CHANGES IN LAW
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16.1 INCREASED COSTS
Whenever the Lender determines that it or any of its holding companies is
affected by any change (occurring after the date of this Agreement) in, any
making (occurring after the date of this Agreement) of, or any change
(occurring after the date of this Agreement) in the interpretation or
application by any Governmental Agency of, any law, official directive or
request (including, without limitation, with respect to Taxation (other
than an Excluded Tax) or reserve, liquidity, capital adequacy, special
deposit or similar requirements) and that as a result:
(a) the effective cost to the Lender of making, funding or maintaining any
Segment or its Commitment is in any way increased;
(b) any amount paid or payable to or received or receivable by the Lender
or the effective return to the Lender or any of its 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 any of its holding companies on the
capital which is or becomes directly or indirectly allocated by the
Lender or the holding company to any Segment or its Commitment is in
any way reduced; or
(d) in any way, in so far as that law, official directive or request
relates to or affects its Commitment, any Segment, this Agreement or
the Trust Deed, the overall return on capital of the Lender or any of
its holding companies is reduced,
(including, without limitation, by reason of the Lender or any of its
holding companies being restricted in its capacity to enter other
transactions, or being required to make a payment or foregoing or earning
reduced interest or other return on any capital or on any amount calculated
by reference in any way to, or allocating capital to, the amount of any
Segment, its Commitment or to any other amount paid or payable or received
or receivable under this Agreement or the Trust Deed) then:
(e) (when it has calculated the effect of the foregoing and the amount to
be charged) the Lender 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 the amount certified by an Authorised Officer of
the Lender which shall compensate it or its relevant holding company
(as the case may be) for such increased cost or such reduction.
This Clause:
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FACILITY AGREEMENT ARTHUR ROBINSON
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(i) applies with respect to official directives or requests whether
or not having the force of law and, if not having the force of
law, the observance of which is in accordance with the practice
of responsible bankers or financial institutions in the country
concerned; and
(ii) shall not apply to any increased cost or reduction which arises
as a result of the occurrence of any event referred to in Clause
16.4(a) to the extent only that such event has the result
referred to in Clause 16.4(b).
16.2 MINIMISATION
(a) (NOTICE): At the time of making such demand the Lender shall deliver
to Foster's Brewing Group a certificate specifying (without any
obligation to disclose any details relating to its business and Tax
affairs):
(i) the event by reason to which it is entitled to make such demand;
and
(ii) the calculation (in reasonable detail) on which such demand is
based.
(b) (NO DEFENCE): If the Lender and (if applicable) its holding company
has acted in good faith it shall not be a defence that any cost,
reduction or payment or loss of tax credit referred to in Clause 16 or
this Clause could have been avoided.
(c) (NEGOTIATION): At the request of a Borrower or Foster's Brewing Group,
the Lender 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 can be minimised.
16.3 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.
16.4 ABSORPTION
Whenever:-
(a) there shall occur the making of, or a change in the interpretation or
application by any Government Agency of, any law, treaty or official
directive or request (each an "Absorption Tax Change"); and
(b) as a result the Lender is not able to obtain a full tax credit in the
jurisdiction of the relevant Lending Office in respect of Australian
Withholding Tax deducted by Treasury Aust. in respect of interest
payable on any Segment on which the Lender has agreed to absorb
Australian Withholding Tax under Clause 2.3,
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FACILITY AGREEMENT ARTHUR ROBINSON
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then:-
(c) the Lender shall notify Treasury Aust. as soon as it becomes aware of
the same;
(d) with effect on and from the date of the Absorption Tax Change the
Lender shall be relieved of its obligation under Clause 2.3 to absorb
Australian Withholding Tax to the extent to which it is or would have
been unable to obtain such full tax credit and for so long as the
Absorption Tax Change is applicable and, to the extent of such relief,
Australian Withholding Tax on any payment of interest referred to in
paragraph (b) shall not be an Excluded Tax for the purposes of the
Segment referred to in paragraph (b); and
(e) if such interest has been paid prior to such notice, Treasury Aust.
shall on demand pay by way of additional interest such further amount
necessary to ensure that the Lender receives in aggregate, in respect
of that interest payment, the amount that it would have received had
that Australian Withholding Tax, to the extent that it has ceased to
be an Excluded Tax under paragraph (d), not been an Excluded Tax at
the time of payment.
A demand under paragraph (e) shall be accompanied by a certificate signed
by an Authorised Officer of the Lender setting out in reasonable detail
(but without any obligation to disclose any details relating to its
business and Tax affairs) the basis of calculation used by the Lender in
determining the amount payable by Treasury Aust. under this Clause.
17. ILLEGALITY
--------------------------------------------------------------------------------
If the making of, or a change in the interpretation or application by any
Governmental Agency of, any law or treaty makes it unlawful or
impracticable for the Lender to make, fund or maintain its participation in
any Segment then:
(a) the Lender may, by notice to the relevant Borrower, terminate the
Commitment;
(b) 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
(c) such prepayment shall be made immediately, but if in the opinion of
the lender delay in prepayment is permitted by, or will not cause a
breach of, the law or treaty, it shall be made on the latest permitted
day.
18. CONDITIONS PRECEDENT TO EACH SEGMENT
--------------------------------------------------------------------------------
The obligation of the Lender to make available each Segment is subject to
the following conditions precedent:
<PAGE>
(a) (TRUST DEED CONDITIONS PRECEDENT - NO INCREASE IN PRINCIPAL AMOUNT):
to the extent only that the provision of the Segment would result in
an increase in the aggregate principal amount of all Segments
outstanding on that day, that each of the conditions precedent set out
in paragraphs (i) to (vi) (both inclusive) of Clause 5.7(a) of the
Trust Deed (subject to Clause 5.7(c) of the Trust Deed) applies as if
set out in this Agreement and has been satisfied (on the basis that
any reference to the "Funding Creditor" in any of those paragraphs is
a reference to the "Lender");
(b) (TRUST DEED CONDITIONS PRECEDENT - NO PROVISION OR ROLLOVER OF
ACCOMMODATION): that each of the conditions precedent in paragraphs
(a) to (d) (both inclusive) of Clause 5.8 of the Trust Deed applies as
if set out in this Agreement and has been satisfied (on the basis that
any reference to the "Funding Creditor" in any of those paragraphs is
a reference to the "Lender");
(c) (NO DEFAULT): that no Event of Default or Potential Event of Default
will result from the provision of the financial accommodation; and
(d) (AUTHORISATION): that all necessary Authorisations for the provision
of the financial accommodation have been obtained.
19. REPRESENTATIONS, WARRANTIES, COVENANTS AND EVENTS OF DEFAULT
--------------------------------------------------------------------------------
19.1 REPRESENTATIONS AND WARRANTIES
(a) Each of the Borrowers and Foster's Brewing Group acknowledges that the
Lender enters into this Agreement in reliance on the representations
and warranties contained in Clause 3 of the Trust Deed.
(b) Each of the Borrowers and 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 in accordance with Clause 3.4
of the Trust Deed.
19.2 TRUST DEED COVENANTS
Each of the Borrowers and Foster's Brewing Group acknowledges that it has
given the undertakings in the Trust Deed for the benefit of the Lender and
the Lender is entering into this Agreement in reliance on those
undertakings.
19.3 EVENTS OF DEFAULT
(a) The list of Events of Default and the rights of the Lender as a
Creditor as a consequence of an Event of Default are set out in Clause
5 of the Trust Deed.
(b) Each of the Borrowers and Foster's Brewing Group acknowledges that the
Lender enters into this Agreement in reliance on the rights conferred
under Clause 5 of the Trust Deed and on the basis that it is and will
be entitled to exercise those rights as a "Creditor".
<PAGE>
FACILITY AGREEMENT ARTHUR ROBINSON
& HEDDERWICKS
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20. SET-OFF
--------------------------------------------------------------------------------
20.1 SET-OFF
Each of the Borrowers and Foster's Brewing Group severally authorises the
Lender (but without obligation on the part of the Lender) if an Event of
Default which would entitle the Lender (as a Creditor) or the Trustee to
make a declaration under Clause 5.2(A) or (B) of the Trust Deed is
subsisting to apply any credit balance in any currency (whether or not
matured) in any of its accounts with any branch of the Lender in or towards
satisfaction of any sum at any time due and payable by it to the Lender
under or in relation to any Relevant Document.
20.2 CURRENCY EXCHANGE
The Lender may effect such currency exchanges as are appropriate to
implement such set-off.
21. INDEMNITIES
--------------------------------------------------------------------------------
Each of the Borrowers and Foster's Brewing Group shall indemnify the Lender
on demand against any loss, cost or expense the Lender may sustain or incur
as a consequence of:
(a) the occurrence of any Event of Default or Potential Event of Default;
(b) any falsity, inaccuracy, insufficiency, illegibility or forgery of or
in any Drawdown Notice or any demand, certificate or declaration or
other document sent to the Lender by facsimile which on its face
purports to be signed or authorised by an Authorised Officer;
(c) any facsimile transmission being inaccurately transmitted or not being
received from any cause or having been sent by an unauthorised person
(and the Lender shall not be obliged to enquire as to any such
matter);
(d) 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);
(e) any Segment requested in a Drawdown Notice not being provided for any
reason (including, without imitation, failure to fulfil any condition
precedent or non receipt, illegibility or fraudulence of any Drawdown
Notice sent to the Lender by facsimile but excluding any default by
the Lender);
(f) the Lender 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 30.2(b)(ii) for any reason, including, without
limitation, prepayment in accordance with this Agreement, but
excluding default by the Lender; or
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FACILITY AGREEMENT ARTHUR ROBINSON
& HEDDERWICKS
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(g) its failure to perform its obligations under paragraph (c) of Clause
10.9 for any reason.
Without limitation such indemnity shall cover the amount determined by the
Lender as being incurred by reason of the liquidation or re-employment of
deposits or other funds acquired or contracted for by the Lender to fund or
maintain any such Segment or amount (including loss of margin).
22. CURRENCY INDEMNITY
--------------------------------------------------------------------------------
22.1 GENERAL
Whenever:
(a) any amount payable by any Borrower or Foster's Brewing Group under or
in respect of this Agreement is received or recovered by the Lender in
a currency (the "Payment Currency") other than the currency under
which the relevant amount was payable under this Agreement (the
"Agreed Currency") for any reason (including without limitation as a
result of any judgment or order); and
(b) the amount actually received by the Lender in accordance with its
normal practice by converting the Payment Currency into the Agreed
Currency is less than the relevant amount of the Agreed Currency,
then the relevant Borrower or Foster's Brewing Group as the case may be
shall, to the extent that it is permitted to do so, as an independent
obligation and notwithstanding any such judgment, indemnify the Lender on
demand against the deficiency.
22.2 LIQUIDATION
In the event of the Liquidation of a Borrower or Foster's Brewing Group,
the Borrower and Foster's Brewing Group (jointly and severally), shall, to
the fullest extent permitted that they may effectively do so, indemnify the
Lender on demand against any deficiency arising or resulting from any
variation as between:
(a) the exchange rate actually applied for the purposes of such
Liquidation in converting into another currency any amount expressed
in one currency due or contingently due under this Agreement or under
any judgment or order relating to any Relevant Document; and
(b) the exchange rate at which the Lender in accordance with its normal
practice would be able to purchase the last-mentioned currency with
the first-mentioned currency as at the final date or dates for the
filing of proof or other claim in the Liquidation or the nearest
available prior date including any premiums and costs of exchange
payable in connection with the purchase.
<PAGE>
FACILITY AGREEMENT ARTHUR ROBINSON
& HEDDERWICKS
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23. STAMP DUTIES
--------------------------------------------------------------------------------
23.1 BORROWERS TO PAY
Each of the Borrowers shall pay all stamp, transaction, registration and
similar Taxes (including fines and penalties) which may be payable or
determined to be payable in connection with the execution, delivery,
performance or enforcement of this Agreement or any payment or receipt or
any other transaction contemplated by this Agreement (and the liability of
the companies under this Clause shall be joint and several).
23.2 FID ETC INCLUDED
Such Taxes shall include any financial institutions duty, debits tax or
other Taxes payable by return and any such Taxes passed on to the Lender by
any bank or financial institution.
23.3 INDEMNITY
Each of the Borrowers shall indemnify the Lender on demand against any
liabilities resulting from delay or omission to pay such Taxes for which it
is responsible.
24. EXPENSES
--------------------------------------------------------------------------------
Each of the Borrowers shall on demand reimburse the Lender for:
(a) the expenses of the Lender in connection with any subsequent consent,
approval, waiver or amendment under or in relation to this Agreement;
and
(b) the expenses of the Lender in connection with the amendment,
variation, termination or enforcement of, or the preservation of any
rights under, this Agreement including, without limitation, any
expenses incurred in retaining consultants to evaluate matters of
material concern to the Lender,
including, in each case, legal costs and expenses on a full indemnity
basis, and the liability of the companies under this Clause shall be joint
and several.
25. WAIVERS, REMEDIES CUMULATIVE
--------------------------------------------------------------------------------
25.1 WAIVERS
No failure to exercise and no delay in exercising any right, power or
remedy under this Agreement by any party shall operate as a waiver, nor
shall any single or partial exercise of any right, power or remedy preclude
any other or further exercise of that or any other right, power or remedy.
<PAGE>
FACILITY AGREEMENT ARTHUR ROBINSON
& HEDDERWICKS
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25.2 RIGHTS CUMULATIVE
The rights, powers and remedies provided to the parties are cumulative and
not exclusive of any rights, powers or remedies provided by law.
26. SEVERABILITY OF PROVISIONS
--------------------------------------------------------------------------------
Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability, but that shall not invalidate the
remaining provisions of this Agreement or affect such provision in any
other jurisdiction.
27. SURVIVAL OF REPRESENTATIONS AND INDEMNITIES
--------------------------------------------------------------------------------
27.1 SURVIVAL OF REPRESENTATIONS
All representations and warranties in this Agreement shall survive the
execution and delivery of this Agreement and final payment of the
Guaranteed Moneys.
27.2 CONTINUING INDEMNITIES
Each indemnity in this Agreement shall:
(a) be a continuing obligation;
(b) constitute a separate and independent obligation of the party giving
the indemnity from its other obligations under this Agreement; and
(c) survive the termination of this Agreement.
28. MORATORIUM LEGISLATION
--------------------------------------------------------------------------------
To the full extent permitted by law all legislation which at any time
directly or indirectly:
(a) lessens or otherwise varies or affects in favour of a Borrower or
Foster's Brewing Group any obligation under any this Agreement; or
(b) delays or otherwise prevents or prejudicially affects the exercise by
the Lender of any right, power or remedy conferred by this Agreement,
is negated and excluded from this Agreement.
29. CONTROL ACCOUNTS
--------------------------------------------------------------------------------
The accounts kept by the Lender shall constitute sufficient evidence unless
the contrary is proved of the amount at any time due from any Borrower
under this Agreement.
<PAGE>
FACILITY AGREEMENT ARTHUR ROBINSON
& HEDDERWICKS
--------------------------------------------------------------------------------
30. INTEREST ON OVERDUE AMOUNTS
--------------------------------------------------------------------------------
30.1 DEFAULT INTEREST
On demand by the Lender from time to time:
(a) subject to Clause 30.6, each Borrower shall pay interest on all
amounts due and payable by it under or in relation to this Agreement
(including such amounts due for payment under Clause 5 of the Trust
Deed) and unpaid;
(b) 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
30.6, from the date such amount is due and payable or the Lender receives a
claim under a Letter of Credit.
30.2 RATE
Such interest shall accrue, subject to Clause 30.6, 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 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;
(b) the sum of the Margin and:
(i) if the amount is denominated in Australian dollars, the Lender's
indicator lending rate from time to time; or
(ii) if the amount is denominated in any other currency, the
arithmetic means (rounded upwards, if necessary, to the nearest
1/16th) of the rates quoted to the Lender two Business Days
before the date of default (or, as appropriate, the expiry of the
funding period referred to below) by leading banks in the
Singapore or 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, the cost incurred by the
Lender in funding the relevant Facility (as certified by the Lender).
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FACILITY AGREEMENT ARTHUR ROBINSON
& HEDDERWICKS
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30.3 BASIS OF CALCULATION
Interest on amounts denominated in Australian dollars, NZ dollars or
Sterling shall be calculated on the basis of a year of 365 or 366 days (as
the case may be) and interest on amounts denominated in other currencies a
year of 360 days.
30.4 INTEREST ON FOREIGN CURRENCY AMOUNTS
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.
30.5 CAPITALISATION
Unless demanded more frequently, interest under this Clause 30 shall
capitalise quarterly.
30.6 CONTINGENT AMOUNTS
Without prejudice to the obligations of a Borrower under Clause 30.7, no
Borrower shall be obliged to pay interest under this Clause 30 on any
amount due and payable under this Agreement or the Trust Deed in respect of
any contingent liability of the Lender under a Letter of Credit or in
respect of an unmatured Bill unless and until:
(a) where the amount was payable in respect of the contingent liability of
the Lender under a Letter of Credit, a claim is made on the Lender
under or in relation to that Letter of Credit; or
(b) where the amount was payable in respect of an unmatured Bill, the
maturity date of that Bill.
30.7 RISK FEE
Each Borrower shall pay to the Lender a risk fee on all amounts due and
payable under this Agreement or the Trust Deed in respect of any contingent
liability of the Lender under a Letter of Credit or in respect of an
unmatured Bill 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 under a Letter of Credit, a claim is made on
the Lender under or in relation to that Letter of Credit or the Letter
of Credit expires without having been drawn upon; and
(b) in the case of an amount payable in respect of an unmatured Bill, the
maturity date of that Bill,
calculated on the basis of a year of 365 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
<PAGE>
FACILITY AGREEMENT ARTHUR ROBINSON
& HEDDERWICKS
--------------------------------------------------------------------------------
three months, the date three months after the amount becomes due and
payable under this Agreement or the Trust Deed (as applicable) and the last
day of the period in respect of which the fee is payable.
31. FEES
--------------------------------------------------------------------------------
The Borrowers shall pay to the Lender the establishment, line and Letter of
Credit fees in the currencies and amounts and at the times set out in the
letters from the Lender 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.
32. ASSIGNMENTS
--------------------------------------------------------------------------------
32.1 ASSIGNMENTS BY BORROWERS AND FOSTER'S BREWING GROUP
Neither any Borrower nor Foster's Brewing Group shall assign or transfer
all or any of its rights or obligations under this Agreement without the
prior written consent of the Lender.
32.2 ASSIGNMENT BY LENDER
The Lender may assign or transfer all or any of its rights or obligations
under this Agreement to another bank or financial institution at any time
if:
(a) any necessary prior Authorisation is obtained;
(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 be required in the case of a transfer or assignment to
a Related Company of the Lender; and
(iii) will be deemed to have been given if no response is received
within 15 days of request for such consent.
32.3 DISCLOSURE
The Lender 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.
32.4 CHANGE OF LENDING OFFICE
The Lender may change any Lending Office if it gives prior notice to
Foster's Brewing Group and consults with Foster's Brewing Group.
<PAGE>
FACILITY AGREEMENT ARTHUR ROBINSON
& HEDDERWICKS
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32.5 NO INCREASED COSTS
If the Lender assigns its rights or transfers any or all of its rights and
obligations under this Agreement or changes its Lending Office, 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 its Lending
Office and of which the Lender or its assignee or transferee (as
applicable) was aware or ought reasonably to have been aware on the date of
the assignment, transfer or change.
33. NOTICES
--------------------------------------------------------------------------------
33.1 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
(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 communication is sent
or is later than 4.00 pm (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.
Correspondence to, and other communications with, the Lender shall be to
the following address:
Level 10
360 Collins Street
Melbourne Vic 3000
Telephone: (03) 9608 3890
Fax: (03) 9670 4875
Contact: Rob Nicholls
<PAGE>
FACILITY AGREEMENT ARTHUR ROBINSON
& HEDDERWICKS
--------------------------------------------------------------------------------
33.2 TO BORROWERS OR FOSTER'S BREWING GROUP
Any notice required to be given to a Borrower or Foster's Brewing Group
shall be deemed given if given to Foster's Brewing Group in accordance with
Clause 33 to the following address:
77 Southbank Boulevard
Southbank, Victoria, 3006
Telephone: (03) 9633 2000
Fax: (03) 9633 2634
Contact: Vice President, Treasury
33.3 FACSIMILE TRANSMISSIONS
Each of the Borrowers and Foster's Brewing Group acknowledges that the
Lender:
(a) is not bound to enquire as to whether any facsimile transmission has
been inaccurately transmitted or received or has been sent by an
unauthorised person; and
(b) is not liable for any loss or expense that may result from any
falsity, inaccuracy, insufficiency, illegibility or forgery in any
notice or other communication sent by facsimile.
If a notice or other communication from a Borrower or Foster's Brewing
Group is delivered to the Lender by facsimile, it shall deliver to the
Lender the original of that notice or other communication within 2 Business
Days of the date of the facsimile.
34. AUTHORISED OFFICERS
--------------------------------------------------------------------------------
Each of the Borrowers and Foster's Brewing Group irrevocably authorises the
Lender to rely on a certificate by any person purporting to be one of its
directors or secretaries, as to the identity 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.
35. GOVERNING LAW
--------------------------------------------------------------------------------
This Agreement shall be governed by the laws of Victoria.
36. COUNTERPARTS
--------------------------------------------------------------------------------
This Agreement may be executed in any number of counterparts. All of such
counterparts taken together shall be deemed to constitute the one
instrument.
<PAGE>
FACILITY AGREEMENT ARTHUR ROBINSON
& HEDDERWICKS
--------------------------------------------------------------------------------
37. ACKNOWLEDGEMENT 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 any Related Company of the Lender (including, without limitation,
any advice, warranty, representation or undertaking); and
(b) neither the Lender nor any Related Company of the Lender is obliged to
do anything (including, without limitation, disclose anything or give
advice), except as expressly set out in the Relevant Documents.
38. ATTORNEYS
--------------------------------------------------------------------------------
Each attorney executing this Agreement states that he has no notice of the
revocation of his power of attorney.
<PAGE>
FACILITY AGREEMENT ARTHUR ROBINSON
& HEDDERWICKS
--------------------------------------------------------------------------------
SCHEDULE 1
LENDING OFFICES
--------------------------------------------------------------------------------
1. AUSTRALIAN LENDING OFFICE:
Level 10
360 Collins Street
Melbourne Vic 3000
Tel: (03) 9608 3890
Fax: (03) 9670 4875
Attention: Rob Nicholls
2. UK LENDING OFFICE:
63 St Mary Ave
London EC3A8LE
Tel: (020) 7621 7592
Fax: (020) 7621 7522
Attention: Loans Administration
3. US LENDING OFFICE
Level 39
575 Fifth Avenue
New York New York USA
Tel: (212) 551 1960
Fax: (212) 551 1999
Attention: Susan Wildstein
4. NZ LENDING OFFICE
Level 24, Westpac Trust Tower
120 Albert Street
Auckland, New Zealand
Tel: (64) 9367 3787
Fax: (64) 9367 3769
Attention: Senior Relationship Manager
<PAGE>
FACILITY AGREEMENT ARTHUR ROBINSON
& HEDDERWICKS
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SCHEDULE 2
ADDITIONAL DOMESTIC STERLING COSTS
--------------------------------------------------------------------------------
(a) The additional domestic Sterling cost for an amount for a Funding Period is
the rate determined by the Lender to be equal to the rate notified by the
Lender and calculated in accordance with the following formulae:
In relation to an amount denominated in Sterling:
BY + S(Y - Z) + F x 0.01 % per annum = additional domestic Sterling cost
------------------------
100 - (B + S)
where on the day of application of the formula:
B is the percentage of the Lender's eligible liabilities (in excess of
any stated minimum) which the Bank of England requires the Lender to
hold on a non-interest-bearing deposit account in accordance with its
cash ratio requirements;
Y is the rate at which Sterling deposits are offered by the Lender to
leading banks in the London interbank market at or about 11.00 a.m. on
that day for the Funding Period;
S is the percentage of the Lender's eligible liabilities which the Bank
of England requires the Lender to place as a special deposit;
Z is the interest rate per annum allowed by the Bank of England on
special deposits; and
F is the charge payable by the Lender to the Financial Services
Authority under paragraph 2.02 or 2.03 (as appropriate) of the Fees
Regulations but where for this purpose, the figure in paragraph 2.02b
and 2.03b will be deemed to be zero expressed in pounds per (pound)1
million of the fee base of the Lender.
(b) For the purposes of this Schedule 2:
(i) "eligible liabilities" and "special deposits" have the meanings given
to them at the time of application of the formula by the Bank of
England; and
(ii) "fee base" has the meaning given to it in the Fees Regulations; and
(iii) "Fees Regulations" means the Banking Supervision (Fees) Regulations
1998 or any other regulations governing the payment of fees for
banking supervision.
(c) In the application of the formula, B, Y, S and Z are included in the
formula as figures and not as percentages, e.g. if B = 0.5% and Y = 15%, BY
is calculated as 0.5 x 15.
(d) (i) The formula is applied on the first day of the relevant Funding
Period.
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FACILITY AGREEMENT ARTHUR ROBINSON
& HEDDERWICKS
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(ii) Each rate calculated in accordance with the formula is, if necessary,
rounded upward to four decimal places.
(e) If the Lender in its reasonable opinion determines that a change in
circumstances has rendered, or will render, the formula inappropriate, the
Lender following consultation with Treasury UK shall notify Treasury UK 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.
<PAGE>
FACILITY AGREEMENT ARTHUR ROBINSON
& HEDDERWICKS
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SCHEDULE 3
BORROWER LIMITS
--------------------------------------------------------------------------------
<TABLE>
<CAPTION>
NAME OF BORROWER LIMIT
BORROWER (PERCENTAGE OF COMMITMENT)
1. 2. 3 4. 5. 6. 7.
BILL FACILITY EUROCURRENCY LC FACILITY A$CASH US$ STERLING NZ
FACILITY FACILITY FACILITY FACILITY CASH
FACILITY
<S> <C> <C> <C> <C> <C> <C> <C>
Treasury Aust. Nil Nil Nil
Treasury UK Nil Nil Nil Nil Nil
Treasury USA Nil Nil Nil Nil Nil
Treasury NZ Nil Nil Nil Nil Nil
</TABLE>
<PAGE>
FACILITY AGREEMENT ARTHUR ROBINSON
& HEDDERWICKS
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ANNEXURE A
DRAWDOWN NOTICE
--------------------------------------------------------------------------------
To: Westpac Banking Corporation
Level 10, 360 Collins Street
Melbourne Vic 3000
MULTIPLE OPTION FACILITY - DRAWDOWN NOTICE NO. *
We refer to the Facility Agreement dated 21 March, 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:
<TABLE>
<CAPTION>
FACILITY CURRENCY ORIGINAL DOLLAR FUNDING
AMOUNT PERIOD
<S> <C> <C> <C> <C>
* ** *** ****
</TABLE>
-------------------------------
* Bill, US$, A$ Cash, Eurocurrency, NZ$ Cash, Sterling or LC
Facility
** If Bill or A$ Cash Facility $A only, US$ or
Eurocurrency Facility US$ only, if LC Facility any
currency, if Sterling Facility Sterling only, if NZ$
Cash, NZ$ only
*** Original Dollar Amount must comply with Clause 8.1, 9.1,
10.1, 11.1, 12.4, 13.1, or 14.1
**** Funding Periods to comply with Clause 5
(4) we request that
<PAGE>
FACILITY AGREEMENT ARTHUR ROBINSON
& HEDDERWICKS
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(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. The details of the Secured Financing in respect
of which each Letter of Credit is issued are set out in Schedule 2.
(5) we [enclose]/[irrevocably request you to prepare, complete, draw, sign and
deliver on our behalf]/[enclose and irrevocably request you to 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 the Bills for the
accommodation of Treasury Aust.
(b) [debit to the account of Treasury Aust. styled
.......................... ........................at the
..................................... Branch of the Lender [deduct
from the proceeds referred to in (4) above] the amount of the Lender's
[acceptance/endorsement] and other fees, any stamp or other
documentary or transaction Tax payable on or in respect of the Bills
or any other amount owing by Treasury Aust. to the Lender under the
Facility Agreement but unpaid.
(c) [complete the name of the payee on the Bills, purchase the Bills or at
the Lender's option sell them to any person and credit the net
proceeds [after deducting any moneys payable under (b) above] to the
Account of Treasury Aust styled ...................... at the
........................... Branch of the Lender; and]
[OR]
(d) [hand the accepted Bills to .............................. (a specimen
of whose signature appears below).]
[OR]
(e) [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 the
................................. Branch of the Lender.]
(f) please state the fixed rate at which the Lender would be prepared to
discount a series of Bills having an aggregate face amount of
$............. during a period of .................. months.]
(6) We acknowledge that pursuant to Clause 3.4 of the Trust Deed, the
representation and warranties in Clause 3 of the Trust Deed are repeated on
the date of this notice with respect to the facts and circumstances then
existing.
Expressions defined in the Facility Agreement have the same meaning when used in
this Drawdown Notice.
<PAGE>
FACILITY AGREEMENT ARTHUR ROBINSON
& HEDDERWICKS
--------------------------------------------------------------------------------
SCHEDULE 1
<TABLE>
<CAPTION>
SEGMENT NO. BENEFICIARY LENDING OFFICE FACE AMOUNT
<S> <C> <C> <C>
1(a)
(b)
(c)
</TABLE>
SCHEDULE 2
<TABLE>
<CAPTION>
SEGMENT PRINCIPAL [INTEREST AND [OTHER MATURITY
AMOUNT OF AMOUNTS IN THE AMOUNTS (TO DATE
SECURED NATURE OF COMPLY WITH
FINANCING INTEREST] CLAUSE 13]
<S> <C> <C> <C> <C>
1(a)
(b)
(c)
</TABLE>
SCHEDULE 3
<TABLE>
<CAPTION>
DRAWER'S DATE MATURITY FACE DRAWER'S ACCEPTOR'S ENDORSER(S)'
NO. OF BILL EXECUTION DATE AMOUNT NAME NAME NAME(S)
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
For and on behalf of
BORROWER/FOSTER'S BREWING GROUP
By:
[Authorised Officer]
Dated:[#].
<PAGE>
FACILITY AGREEMENT ARTHUR ROBINSON
& HEDDERWICKS
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ANNEXURE B
FORM OF LETTER OF CREDIT
WESTPAC BANKING CORPORATION
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[Date]
TO: [Name and Address of Beneficiary]
Dear Sirs,
Westpac Banking Corporation has pleasure in detailing the particulars of our
Letter of Credit issued in your favour.
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WESTPAC BANKING CORPORATION
IRREVOCABLE STANDBY LETTER OF CREDIT NO. ................
DATED........................, .............
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<TABLE>
<S> <C>
ON ACCOUNT OF: [NAME OF BORROWER]
BENEFICIARY: ...........................(the "Beneficiary")
AMOUNT: Maximum limit of liability [figure]
EXPIRY DATE: [#]
AVAILABLE AT: Westpac Banking Corporation, [address]
BY DRAFTS ON: Westpac Banking Corporation [address, marked "Refer to Manager", ***]
PAYABLE AT: Sight
ENFACED: "Drawn under Westpac Banking Corporation Irrevocable Standby Letter of
Credit No. .............. dated [#]".
RETURNABLE TO: Westpac Banking Corporation [address].
ISSUED IN Details of Secured Financing] (the "Secured Financing")
CONNECTION WITH:
</TABLE>
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
(local time in the location of the Borrower) on the expiry date specified above
and be accompanied by a statutory declaration stating that:-
<PAGE>
FACILITY AGREEMENT ARTHUR ROBINSON
& HEDDERWICKS
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(a) the declarants are two officers of the Beneficiary, making the declaration
on behalf of the Beneficiary;
(b) the declarants have authority to make the statutory declaration on behalf
of the Beneficiary;
(c) the statutory declaration is made pursuant to the terms of Letter of Credit
No. ...................;
(d) the amount claimed is not more than the maximum aggregate amount available
under that Letter of Credit;
(e) the amount claimed represents an amount or amounts remaining unpaid to the
Beneficiary in respect of the Secured Financing in accordance with
arrangements made between the Beneficiary and [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 Westpac Banking Corporation 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.
Westpac Banking Corporation 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 Westpac Banking Corporation.
For and on behalf of Westpac Banking Corporation
................................. ..............................
Authorised Signatory Authorised Signatory
<PAGE>
FACILITY AGREEMENT ARTHUR ROBINSON
& HEDDERWICKS
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ANNEXURE C
VERIFICATION CERTIFICATE
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To: Westpac Banking Corporation
Level 10
360 Collins Street
MELBOURNE VIC 3000
MULTIPLE OPTION FACILITY AGREEMENT
I [name] am a [director] of [BORROWER/FOSTER'S BREWING GROUP] of [ ] (the
"Company").
I refer to the Multiple Option Facility Agreement (the "Facility Agreement")
dated * 1991 between you as Lender, the Company, and [Foster's Brewing Group and
borrowers] named in the Facility Agreement.
Expression defined in the Facility Agreement bear the same meaning when used in
this Certificate.
I CERTIFY that attached to this Certificate are true, complete and up to date
copies of each of the following:
(a) the [Memorandum and Articles of Association/Constitution/bylaws] of the
Company (marked "A");
(b) a duly executed power of attorney granted by the Company for the purpose of
permitting the execution on behalf of the Company of the Facility Agreement
(marked "B"). Such power of attorney has not been revoked by the Company
and remains in full force and effect; and
(c) an extract from minutes of meetings of the directors or of a committee of
directors of the Company approving execution by the Company of the Facility
Agreement, appointing attorneys for the purpose of execution of the
Facility Agreement, and appointing Authorised Officers of the Company for
the purpose of the Facility Agreement (marked "C"). Such resolutions have
not been amended, modified or revoked and are in full force and effect.
Attached to this Certificate and marked "D" is a true copy of a list containing
the names, positions and signatures of the Authorised Officers of the Company.
Signed:
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Director
Date:
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