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FOR INTERNAL PURPOSES ONLY: CONFORMED COPY INCORPORATING THE
CHANGES FROM THE FIRST, SECOND AND THIRD SUPPLEMENTAL DEEDS.
FBG GROUP FINANCING TRUST DEED
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DATED 21 FEBRUARY 1993
FOSTER'S BREWING GROUP LIMITED
FBG TREASURY (AUST.) LIMITED
FBG TREASURY (U.K.) PLC
FBG CANADIAN TREASURY INC.
*
NATIONAL MUTUAL TRUSTEES LIMITED
(TRUSTEE)
*NOTE: THE FOLLOWING PARTIES HAVE ACCEDED AS GUARANTORS TO THE
FBG GROUP FINANCING TRUST DEED (THE TRUST DEED):
FBG TREASURY USA INC. (BY AN ACCESSION DEED DATED 15 SEPTEMBER
1998); AND
FBG TREASURY EUROPE B.V. (BY AN ACCESSION DEED DATED 10 MAY 1999).
REFERENCES TO A GUARANTOR OR GUARANTORS IN THE TRUST DEED SHOULD BE READ TO
INCLUDE THESE PARTIES.
ARTHUR ROBINSON & HEDDERWICKS
Stock Exchange Centre
530 Collins Street
Melbourne 3000 Australia
Tel 61 3 9614 1011
Fax 61 3 9614 4661
(C)Copyright Arthur Robinson & Hedderwicks 1999
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TABLE OF CONTENTS
1. INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 20
1.3 Determinations and certificates 21
1.4 Document or agreement 21
1.5 Current accounting practice 21
1.6 Certification 22
1.7 Obligations and rights several 22
1.8 Transactional Facilities 22
1.9 Borrowers which are not party to this Deed 23
2. DECLARATION OF TRUST 23
2.1 Declaration of trust 23
2.2 Term of trust 23
2.3 Name of trust 23
2.4 Supplemental documents 23
3. REPRESENTATIONS AND WARRANTIES 24
3.1 Representations and warranties of each Borrower
and Guarantor 24
3.2 Representations and warranties of Foster's Brewing
Group and the Borrowers and Guarantors 26
3.3 Reliance on representations and warranties 28
3.4 Repetition 28
4. UNDERTAKINGS 29
4.1 General undertakings 29
4.2 Financial undertakings 36
4.3 Term of undertakings 37
5. EVENTS OF DEFAULT 37
5.1 Events of Default 37
5.2 Consequences 42
5.3 Cash cover 44
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5.4 Technical default in payment 45
5.5 Technical repayment of facilities for prudential
reasons 46
5.6 Creditor to notify Trustee of 5.2 or 5.5 notice 47
5.7 Conditions precedent: no increase in Principal
Amount 47
5.8 Conditions precedent: no provision or rollover
of accommodation 49
5.9 No obligation to fund after repayment date 50
5.10 Enforcement by Trustee 50
6. GUARANTEE 52
6.1 Guarantee 52
6.2 Payment 52
6.3 Trustee responsibility 54
6.4 Unconditional nature of obligation 55
6.5 No marshalling 58
6.6 No competition 58
6.7 Trustee may prove on Guarantor's behalf 59
6.8 Suspense account 59
6.9 Rescission of payment 60
6.10 Indemnity 60
6.11 Continuing guarantee and indemnity 61
6.12 Variations 61
6.13 Judgment 61
6.14 Release of Guarantors and Borrowers 61
7. ACCESSION OF CREDITORS 63
7.1 Accession 63
7.2 Assignments and transfers 64
8. APPROVED FACILITIES 65
9. REGISTER AND PROVISION OF INFORMATION 66
9.1 Establishment of register 66
9.2 Change in details 67
9.3 Location of Register 67
9.4 Inspection of Register 67
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9.5 Contents conclusive 67
9.6 No recognition of trusts, etc. 68
9.7 Provision of extracts 68
9.8 Notification of Facility Documents 68
9.9 Notification of Guaranteed Moneys and Principal
Amount 68
9.10 Principal Amounts secured by Guarantees issued
by Creditors 69
9.11 Notification of Event of Default 70
9.12 Consent 70
10. NEW GUARANTORS AND BORROWERS 70
10.1 Guarantor accession 70
10.2 Borrower accession 72
10.3 Pre-conditions to accession 72
10.4 Consent to accession 73
11. RELEASE AND DISCHARGE 73
11.1 Individual Creditor release 73
11.2 Release by all Creditors 75
12. CREDITORS' AGREEMENT 75
13. RANKING AND DISTRIBUTION 76
13.1 Ranking 76
13.2 Recovered Moneys 76
13.3 Order 77
13.4 Amounts contingently due 77
13.5 Disputes 78
13.6 Conversion of currencies 78
13.7 Payment 78
13.8 Special appropriation 79
13.9 Non-Guarantor recoveries 79
14. PAYMENTS GENERALLY 80
14.1 Manner 80
14.2 Appropriation where insufficient moneys available 81
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15. TAXATION 81
15.1 Additional payments 81
15.2 Survival of obligations 82
15.3 Reimbursement 82
16. INTEREST ON OVERDUE AMOUNTS 82
16.1 Accrual and payment 82
16.2 Rate 83
16.3 Guaranteed Moneys 83
17. CURRENCY INDEMNITY 84
17.1 General 84
17.2 Liquidation 84
18. CONTROL ACCOUNTS 84
19. POWERS OF INVESTMENT 85
20. FURTHER ASSURANCES 85
21. WAIVERS, REMEDIES CUMULATIVE 85
21.1 Waivers 85
21.2 Rights cumulative 86
22. SEVERABILITY OF PROVISIONS 86
23. SURVIVAL OF REPRESENTATIONS AND INDEMNITIES 86
23.1 Survival of representations 86
23.2 Continuing indemnities 86
24. MORATORIUM LEGISLATION 86
25. TRUSTEE PROVISIONS 87
25.1 Authority 87
25.2 Instructions: extent of discretion 87
25.3 No obligation to investigate authority 88
25.4 Trustee capacity 88
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25.5 Exoneration 88
25.6 Delegation 89
25.7 Reliance on documents and experts 89
25.8 Notice of Transfer 90
25.9 Notice of Default 90
25.10 Trustee's other capacities 90
25.11 Indemnity 90
25.12 Independent investigation of credit 91
25.13 No monitoring 91
25.14 Information 91
25.15 Replacement of Trustee 91
25.16 Amendment or waiver of Transaction Documents 93
26. MEETINGS 95
26.1 Convening of Meeting 95
26.2 Procedures 95
27. PROPORTIONATE SHARING 96
27.1 Sharing 96
27.2 Repayment 97
27.3 Transactional Facilities 97
28. STAMP DUTIES 98
29. EXPENSES AND FEES 98
29.1 Expenses 98
29.2 Fees of Trustee 99
30. NOTICES 99
31. REPRESENTATIVES AND FACILITY AGENTS 100
31.1 Borrowers and Guarantors 100
31.2 Creditors 100
31.3 Payments and notices under Syndicated Facilities 100
31.4 Creditor Group 101
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32. AUTHORISED OFFICERS 101
33. GOVERNING LAW AND JURISDICTION 101
33.1 Governing law 101
33.2 Jurisdiction 102
33.3 Process agents 102
34. CONFIDENTIALITY 103
34.1 Confidentiality 103
34.2 Permitted disclosure 103
34.3 Survival of obligation 103
35. ASSIGNMENTS 103
36. COUNTERPARTS 104
37. ACKNOWLEDGEMENT BY BORROWERS AND GUARANTORS 104
38. ATTORNEYS 104
ANNEXURE A 105
Form of Accession Deed for New Creditors 105
ANNEXURE B 108
Guarantor Confirmation 108
ANNEXURE C1 109
Form of Accession Deed for New Guarantors 109
ANNEXURE C2 111
Form of Accession Deed for New Borrowers 111
ANNEXURE D 113
Guaranteed Moneys certificate 113
ANNEXURE D1 115
Guaranteed moneys certificate 115
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ANNEXURE E 116
Approved Facility Certificate 116
ANNEXURE F 118
Verification certificate for all New Guarantors/Borrowers 118
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DATE 21 February 1993
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PARTIES
-------------
1. FOSTER'S BREWING GROUP LIMITED (A.C.N. 007 620 886) of 77 Southbank
Boulevard, Southbank, Victoria 3006 (FOSTER'S BREWING GROUP).
2. FBG TREASURY (AUST.) LIMITED (A.C.N. 006 865 738) of 77 Southbank
Boulevard, Southbank, Victoria 3006 (TREASURY AUST).
3. FBG TREASURY (UK) PLC of Montrose House, Chertsey Boulevard, Hanworth
Lane, Chertsey, Surrey KT16 9JX, England (TREASURY UK).
4. FBG CANADIAN TREASURY INC. of 175 Bloor Street East, North Tower, Suite
706, Toronto, Ontario M4W 3R8 (TREASURY CANADA).
5. NATIONAL MUTUAL TRUSTEES LIMITED (A.C.N. 004 029 841) of 65 Southbank
Boulevard, Southbank, Victoria 3006, as agent and trustee for the
Creditors (in this capacity, the TRUSTEE).
RECITALS
-------------
A Creditors have provided or made available, and may in the future
provide or make available, financial accommodation to, or for the
account of, a Treasury Subsidiary or another Borrower.
B Foster's Brewing Group has agreed to grant a guarantee under this Deed
for the benefit of the Creditors (including in relation to
Transactional Facilities) as security for the obligations of the
Borrowers under the Approved Facilities.
C For the consideration provided in this Deed and upon the terms and
conditions contained in this Deed, the Trustee has agreed to act as
Trustee of this Deed for the benefit of all Creditors present and
future and who are, from time to time, entitled to the benefit of this
Deed.
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IT IS AGREED as follows.
1. INTERPRETATION
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1.1 DEFINITIONS
Terms used in this Deed have the following meanings unless the context
requires otherwise:
APPROVED FACILITY means:
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(a) any Facility provided or to be provided by, or with, a
Creditor which becomes an Approved Facility in relation to
that Creditor in accordance with Clause 8(a) or (b) and which
has not ceased to be an Approved Facility in relation to that
Creditor in accordance with Clause 8(e) or 11.1; or
(b) any Facility which is reinstated as an Approved Facility under
Clause 11.1.
APPROVED FACILITY CERTIFICATE means a certificate, substantially in the
form set out in Annexure E (or such other form as Foster's Brewing
Group and the relevant Creditor may agree), given or to be given to a
Creditor who is to provide, or has provided, a Facility which is, or is
to become, an Approved Facility.
AUDITOR means the auditor of Foster's Brewing Group.
AUTHORISATION includes:
(a) any consent, authorisation, registration, filing, agreement,
notarisation, certificate, permission, licence, approval,
authority or exemption from, by or with a Governmental Agency;
or
(b) in relation to anything which will be prohibited or restricted
in whole or part by law if a Governmental Agency intervenes or
acts in any way within a specified period after lodgement,
filing, registration or notification, the expiry of such
period without such intervention or action.
AUTHORISED OFFICER means:
(a) in respect of a Borrower or Guarantor, a director or secretary
of the Borrower or Guarantor, or any person from time to time
nominated as an Authorised Officer by that Borrower or
Guarantor by notice to the Trustee accompanied by certified
copies of signatures of all new persons so appointed;
(b) in respect of the Trustee, a director, secretary or an officer
whose title contains the word MANAGER or PRESIDENT or cognate
expressions (including any person acting in any such office);
and
(c) in respect of any Creditor, such officer(s) of the Creditor or
such other person(s) as are notified in writing to the Trustee
from time to time or, in the absence of any such notification,
a director, secretary or an officer whose title contains the
word MANAGER, PRESIDENT, VICE PRESIDENT, DIRECTOR or EXECUTIVE
or cognate expressions (including any person acting in such
office).
AVAILABLE LIMIT means, on any day, in relation to a Creditor and an
Approved Facility (other than a Transactional Facility) provided by it:
(a) unless paragraph (b) applies, its Limit for that Facility less
its Principal Amount under that Facility; or
(b) if a Borrower may draw or obtain accommodation from two or
more Creditors (including that Creditor) by utilising a single
Limit provided
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by them under that Facility (not being a Syndicated Facility),
the amount calculated as follows:
Amount = L - TPA
-------
N
Where:
L is that Limit.
TPA is the sum of those Creditors' Principal
Amounts under that Facility.
N is the number of those Creditors.
For the purposes of this definition, each Principal Amount shall be
notionally converted (if necessary) into the currency of the Limit in
accordance with the procedures governing such conversion in the
relevant Facility Document.
A$ EQUIVALENT means, on any day and:
(a) with respect to an amount in a currency other than Australian
dollars, such an amount in Australian dollars which is
equivalent to the amount in such other currency calculated by
reference to the average of the spot buying rates for
Australian dollars and such other currency quoted at or about
10.30 a.m. (Melbourne time) on that day (or, if such day is
not a day on which trading banks are open in Melbourne, on the
preceding such day) by any major Australian trading bank (as
selected by the Trustee) to the Trustee; or
(b) with respect to an amount in Australian dollars, such amount.
BORROWER means:
(a) any Guarantor in its capacity as a party to or for the account
of which any Approved Facility is or is to be provided by a
Creditor; or
(b) any other member of the Group to or for the account of which
any Approved Facility is or is to be provided by a Creditor,
and which has not ceased to be a Borrower in accordance with Clause
6.14(a), (b) or (c).
Subject to Clause 10, a Borrower need not be party to this Deed.
BORROWER ACCESSION DEED has the meaning given in Clause 10.2.
BUSINESS means the business of producing alcoholic or non-alcoholic
beverages, the hotel and leisure business and all activities related,
complementary or ancillary to either such business.
BUSINESS DAY means a day on which major trading banks are open for
business in Sydney and Melbourne and in any other place where a payment
is to be made or an action is to be performed only for the purposes of
this Deed.
CORPORATIONS LAW has the meaning given to it under Section 13(2) of the
Corporations (Victoria) Act 1990.
CREDITOR means at any time:
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(a) any Eligible Person at that time which has become a Creditor
under Clause 7 and which has not ceased under Clause 11.1 to
be a Creditor for the purposes of the Transaction Documents
(other than Clause 11.1);
(b) any Former Creditor which, at that time, has been reinstated
as a Creditor under Clause 6.9(d); or
(c) any person who has been reinstated as a Creditor under Clause
11.1.
CREDITOR ACCESSION DEED has the meaning given in Clause 7.1(a).
CREDITOR GROUP means two or more Creditors where:
(a) one is the beneficial owner directly or indirectly of all of
the issued non-redeemable voting capital of the other
Creditor(s); or
(b) another corporation is the beneficial owner directly or
indirectly of all of the issued non-redeemable voting capital
of the Creditors.
CREDITOR GROUP REPRESENTATIVE means, in relation to a Creditor Group,
the member of the group appointed or selected as the group's
Representative under Clause 31.4.
CUT-OFF RATING means in relation to the rating issued by:
(a) Standard & Poor's Australia Pty Ltd, BBB-; or
(b) Moody's Investor Services Pty Ltd, Baa3,
or if the basis on which either of those Ratings Agencies issues
ratings or its categories of ratings change, the equivalent rating
issued by that Ratings Agency as determined by the Trustee (after
consulting Foster's Brewing Group).
EARNINGS means, in respect of any period, the aggregate amount of
consolidated pre-tax profit (including abnormal items and extraordinary
items) for that period of the Group plus the sum of the amount of the
Net Interest Expense
EFG means EFG Australia Limited.
ELIGIBLE PERSON means:
(a) any person (including any bank or financial institution, but
excluding any member of the Group) who has provided or has
agreed to provide a Facility; or
(b) any Facility Agent in relation to any Creditors.
EVENT OF DEFAULT means any of the events specified in Clause 5.1.
EXCLUDED TAX means any Tax imposed by any jurisdiction on the net
income of the Indemnified Party as a consequence of the Indemnified
Party 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
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Relevant Document or any other document referred to in any
Relevant Document by the Indemnified Party; or
(b) which is imposed as a result of the Indemnified Party being
considered a resident of or organised or doing business in
that jurisdiction solely as a result of it being a party to
any Relevant Document or any transaction contemplated by any
Relevant Document.
EXPOSURE means, on any day in relation to a Creditor and an Approved
Facility (other than a Transactional Facility) provided by that
Creditor, the sum of its Principal Amount for that Approved Facility
and its Available Limit (if any) under that Facility less, if the
Principal Amount is secured by any Guarantees included in the Principal
Amount of another Creditor, the amount of the Principal Amount so
secured (as disclosed to the Trustee under Clause 9.9 or 9.10).
For the purposes of this definition, the Available Limit and each
Principal Amount shall (if not in Australian dollars) be notionally
converted by the Trustee into their respective A$ Equivalents on that
day.
FACILITY means any facility, arrangement or agreement (whether
comprised in one or more documents) under which Financial Indebtedness
has been or may be incurred by any member of the Group (alone or with
another member of the Group) to any person (alone or with another
person).
FACILITY AGENT means, in relation to the Creditors under a Syndicated
Facility, the person appointed by them, from time to time, to act as
their agent, nominee or trustee to administer the Syndicated Facility.
FACILITY DOCUMENT means, in relation to a Creditor, a document (other
than a Transaction Document):
(a) under which that Creditor (alone or with another person) has
provided or extended to a Borrower (alone or with another
member of the Group) an Approved Facility;
(b) which evidences an Approved Facility in relation to that
Creditor (including any confirmation or contract note);
(c) which contains provisions governing an Approved Facility in
relation to that Creditor (including any master agreement); or
(d) which is supplemental or collateral to, or security for, or
entered into under, or for the purpose of amending or
novating, any document mentioned in (a), (b) or (c) above,
and shall include the Creditor Accession Deed executed by that Creditor
and Foster's Brewing Group.
FINANCE GROUP means EFG and its Subsidiaries.
FINANCE LEASE means any finance or capital Lease which under current
accounting practice would be required to be capitalised on the balance
sheet of the lessee or hirer under the Lease.
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FINANCIAL INDEBTEDNESS means any indebtedness or liability, present or
future, actual or contingent in respect of moneys borrowed or raised or
any financial accommodation whatsoever, including, without limitation:
(a) under or in connection with any bill acceptance or endorsement
or any discounting arrangement;
(b) under or in connection with any Treasury Transaction;
(c) under or in connection with any indemnity or reimbursement
obligation in respect of any bank guarantee, bank indemnity,
letter of credit or similar Guarantee;
(d) par value, premium and dividend (whether or not declared, and
whether or not there are sufficient profits or other moneys
for payment) of any redeemable shares or stock or any such
share or stock which is the subject of a Guarantee;
(e) the capitalised amount (as reflected in the balance sheet of
the relevant company) in respect of any Finance Lease;
(f) the deferred purchase price (for more than 90 days) of any
goods or other property or service and any related obligation;
or
(g) in respect of any obligation to deliver goods or other
property or services which are paid for in advance by a
financier or which are paid for in advance in relation to any
financing transaction,
and, for the purposes of this definition, the Financial Indebtedness of
any person shall be deemed to include, without limitation:
(h) the amount of all Financial Indebtedness of any second person
which is, directly or indirectly, the subject of a Guarantee
by such first person or secured in any manner by any Security
Interest upon assets or undertaking of such first person (even
though it has not assumed or become liable for the payment of
such Financial Indebtedness);
(i) all obligations or undertakings of such first person
(contingent or otherwise) under any Guarantee in favour of one
or more creditors of the second person or other persons to
whom the second person has any liabilities or obligations,
actual or contingent, in respect of Financial Indebtedness of
such second person; and
(j) all obligations of such first person to purchase, or to
Guarantee the purchase of redeemable preference shares issued
by any second person for the purpose of raising Financial
Indebtedness for such second person except where such
obligation is to be satisfied solely by the issue of shares of
such first person,
the amount of any such Guarantee, obligation or undertaking to be
deemed to be equal to the amount of the Financial Indebtedness of such
second person in respect of which the Guarantee, obligation or
undertaking is entered into or given.
FINANCIAL UNDERTAKING means each undertaking in Clause 4.2.
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FORMER CREDITOR means any person who, but for the application of Clause
11.1, would have been a Creditor.
GOVERNMENTAL AGENCY means any government or any governmental,
semi-governmental or judicial entity or authority or the Australian
Stock Exchange Limited.
GROUP means Foster's Brewing Group and its Subsidiaries (including,
without limitation, the Finance Group).
GROUP BUDGET means, in respect of each of Foster's Brewing Group's
financial years, the most recent detailed budget and projected cash
flow statement showing half-yearly and full year estimates of, and
itemising the material individual components and amount and anticipated
timing of cash flows and expenditures projected for the Group for that
financial year, each such budget statement to incorporate an operating
profit and loss statement and balance sheet and a detailed summary of
and commentary on all assumptions and other relevant matters upon which
the budget statement and the individual components and amounts therein
have been based.
GUARANTEE means any guarantee, indemnity, letter of credit, letter of
comfort which is stated as intended to give rise to legal liabilities
or suretyship or any put option or any other obligation (whatever
called and of whatever nature):
(a) to pay, to purchase, to provide funds (whether by the advance
of money, the purchase of or subscription for shares or other
securities, the purchase of assets rights or services, or
otherwise) for the payment or discharge of;
(b) to indemnify against the consequences of default in the
payment of; or
(c) otherwise to be responsible for,
any obligation or indebtedness (where used in the definition of
Financial Indebtedness only being an obligation or indebtedness in
respect of moneys borrowed or raised or any financial accommodation),
any dividend, capital or premium on shares or stock, or the insolvency
or financial condition of any other person and when used as a verb
shall have a corresponding meaning.
GUARANTEED MONEYS means all moneys which any Borrower or any person
which, but for it ceasing to be a Borrower under Clause 6.14, would
have been a Borrower (whether alone or with another member of the
Group) is or at any time becomes actually or contingently liable to pay
to or for the account of any Creditor (whether alone or with any other
Creditor) on any account whatsoever under or in relation to any
Approved Facility, Facility Document or Transaction Document.
They include, without limitation, moneys by way of principal, interest,
fees, costs, indemnities, charges, duties or expenses or payment of
damages under or in relation to, or as a result of, any breach of or
default under or in relation to, any such Approved Facility, Facility
Document or Transaction Document.
Where a Borrower or such person would have been liable to pay any
moneys but for its Liquidation, it will be taken to be liable.
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GUARANTOR means:
(a) Foster's Brewing Group, Treasury Aust, Treasury UK Treasury
Canada; or
(b) any Restricted Subsidiary or Treasury Subsidiary which becomes
a Guarantor in accordance with Clause 10.1:
which has not been released or discharged in accordance with Clause
6.14(a) or (b).
GUARANTOR ACCESSION DEED has the meaning given in Clause 10.1(c).
INDEMNIFIED PARTY means a Creditor or the Trustee.
INSTRUMENT means any bill of exchange, promissory note, debenture or
other financial instrument (whether or not negotiable).
INTANGIBLE ASSETS in relation to any person means all Intangible Assets
(Excluded) and Intangible Assets (Included).
INTANGIBLE ASSETS (EXCLUDED) in relation to any person means, at any
time, the aggregate book value at that time of:
(a) deferred charges and expenses, including, without limitation:
(i) deferred development expenses of such person;
(ii) expenses incurred by such person in connection with
the issuance of securities; and
(iii) organisational or experimental, research or
development expenses of such person;
(b) goodwill of such person, except goodwill and mailing lists in
respect of wine assets that are acquired;
(c) future income tax benefits of such person to the extent that
they exceed the provision for deferred income tax of that
person; and
(c) (without duplication) any other intangible asset of such
person, but excluding all Intangible Assets (Included).
INTANGIBLE ASSETS (INCLUDED) in relation to any person means at any
time, the following:
(a) Subject to paragraph (b), the aggregate book value at that
time of:
(i) trademarks, tradenames, brandnames, service marks,
copyrights, licences, patents and drawings of such
person; and
(ii) goodwill and mailing lists in respect of wine assets
that are acquired,
after deducting any amount by which the book value of any
asset is written up in excess of its cost, except where it has
been written up in accordance with a valuation by a qualified
independent valuer.
(b) If the exclusion in paragraph (a) of all or any portion of the
revaluation of any assets of such person would have the result
of placing such person in breach of any Financial Undertaking,
then,
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such person may, at its own cost and expense, procure a
valuation of all or any portion of such assets by a qualified
independent valuer, and the amount of the Intangible Assets
(Included) of such person shall be increased in the amount by
which such revaluation exceeds the value of such assets as
determined by such valuer.
INTERMEDIATE SUBSIDIARY means any corporation which is a Subsidiary of
Foster's Brewing Group and of which a Major Subsidiary is a Subsidiary.
LEASE means:
(a) any lease, charter, hire purchase or hiring arrangement of any
property;
(b) any other agreement under which any property is or may be used
or operated by a person other than the owner; or
(c) any agreement or arrangement under which any property is or
may be managed or operated for or on behalf of the owner or
another person by a person other than the owner, and the
operator or manager or its Related Company (whether in the
same or another agreement or arrangements) is required to make
or assure maximum, fixed and/or floating rate payments of a
periodic nature,
(other than agreements under which the manager or operator of a joint
venture uses assets owned by the joint venturers on behalf of the joint
venture).
LIMIT means, in relation to any Approved Facility (other than a
Transactional Facility) of a Creditor, the stated maximum amount of
accommodation which that Creditor has agreed or committed to provide
under that Approved Facility, as reduced, cancelled or increased.
LIMITED RECOURSE INDEBTEDNESS means, in relation to a Security
Interest, any Financial Indebtedness:
(a) incurred by a member of the Group (other than Foster's Brewing
Group, a Borrower, a Guarantor or a Restricted Subsidiary) to
finance the creation or development of a Project or proposed
Project of that member on terms that:
(i) the person (RELEVANT PERSON) in whose favour that
Financial Indebtedness is incurred does not have any
right to enforce its rights or remedies (including
for any breach of any representation or warranty or
obligation) against that member or against the
Project Assets of that member, in each case, except
for the purpose of enforcing that Security Interest
and only to the extent of the lesser of the value of
the Project Assets of that member encumbered by that
Security Interest and the amount secured by that
Security Interest; and
(ii) the Relevant Person is not permitted or entitled:
(A) except as and to the extent permitted in (i)
above, to enforce any right or remedy
against, or demand payment or repayment of
any amount from, any
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member of the Group (including for breach of
any representation or warranty or
obligation); or
(B) except and to the extent permitted in (i)
above, to take any proceedings against any
member of the Group; or
(C) to apply to wind up, or prove in the winding
up of, any member of the Group,
so that the Relevant Person's only right of recourse in
respect of that Financial Indebtedness or that Security
Interest is to the Project Assets encumbered by that Security
Interest; and
(b) not satisfying all of the requirements of paragraph (a) of
this definition but approved by the Trustee (acting on the
instructions of the Majority Creditors).
LIQUIDATION includes official management, receivership, administration,
compromise, arrangement, merger, amalgamation, reconstruction, winding
up, dissolution, deregistration, moratorium, scheme, assignment for the
benefit of creditors generally or any class of creditors or bankruptcy.
MAJOR SUBSIDIARY means at any time after each publication of Foster's
Brewing Group's consolidated audited balance sheet, each Subsidiary of
Foster's Brewing Group (other than a member of the Finance Group), the
primary business of which is the whole or part of a Business conducted
within Australia and:
(a) whose Total Tangible Assets and Intangible Assets as disclosed
in the balance sheet of that Subsidiary (after eliminating any
intra-Group items which would be eliminated from Foster's
Brewing Group's annual consolidated audited balance sheet on
consolidation) have a value of not less than A$50,000,000; or
(b) whose contribution to the Group consolidated net profit
(excluding profits arising on the sale or disposal of non-core
assets of that Group member) after tax exceeds A$15,000,000.
No member of the Group shall be a Major Subsidiary solely as a result
of its direct or indirect shareholding in any member of the Group which
is a Major Subsidiary.
MAJORITY CREDITORS means, on any day, those Participating Creditors:
(a) whose Total Exposures are more than 65% of the Total Exposures
of all Participating Creditors; and
(b) who comprise the majority of Participating Creditors.
Despite the above, in Clause 25.15(c), Majority Creditors means, on any
day, those Participating Creditors whose Total Exposures are more than
50% of the Total Exposures of all Participating Creditors.
MATERIAL ADVERSE EFFECT means, a material adverse effect upon the:
(a) ability of any Borrower or Guarantor to perform its
obligations under any Relevant Document;
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(b) financial condition or Business of the Group (excluding the
Finance Group) taken as a whole; or
(c) financial condition or Business in Australia of the Restricted
Subsidiaries (taken as a whole).
MEETING means a meeting of Creditors convened or to be convened under
Clause 26.
MINORITY SHAREHOLDER INTERESTS means the interests of minority
shareholders in consolidated Subsidiaries of Foster's Brewing Group,
excluding the interests of holders of redeemable preference shares
issued by any such Subsidiary if such shares are not redeemable at the
option of the shareholder on or before the latest payment or repayment
or termination date under any Approved Facility.
NET INTEREST EXPENSE means in respect of any period:
(a) all interest and amounts in the nature of interest or of
similar effect to interest (including amounts other than
principal payable under any Facility) including, without
limitation:
(i) any dividend or distribution payable on any stock,
share or unit included as Financial Indebtedness;
(ii) finance charges relating to rentals in respect of
Finance Leases;
(iii) the face value of Instruments drawn, issued, endorsed
or accepted by any member of the Group less their net
proceeds after discount or issue and payment of any
acceptance, endorsement, underwriting or similar fee;
and
(iv) all line, facility, letter of credit, guarantee and
similar fees and all fees and other amounts of a
regular or recurring nature payable in relation to
Financial Indebtedness but not:
(1) unused line fees; and
(2) establishment, arrangement and other fees
payable once only on the initial provision
of financial accommodation,
paid or accrued by any member of the Group in respect of the
period;
less:
(b) all interest and amounts in the nature of interest or of
similar effect to interest including, without limitation:
(i) any falling within the descriptions in paragraphs
(i), (ii) or (iv) of paragraph (a); and
(ii) the face value of Instruments drawn, issued, endorsed
or accepted by any person other than a member of the
Group and held by any member of the Group less the
net purchase or issue price after discount or issue
and receipt of any acceptance, endorsement,
underwriting or similar fee,
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received or accrued by or to any member of the Group
in respect of the period,
but in each case excluding all transactions between any two members of
the Group.
NET PROFIT AFTER TAX means in respect of any period the operating
profit after income tax of the Group as disclosed in the Group's
published financial statements in respect of that period but adjusted
for the following items:
(a) adding back any amounts relating to depreciation and
amortisation; and
(b) deducting amounts relating to abnormal and extraordinary
items.
PARTICIPATING CREDITOR means:
(a) in relation to the Creditors comprising a Creditor Group and
where the sum of their Total Exposures is A$20,000,000 or
more, the group's Creditor Group Representative;
(b) in relation to the Creditors under a Syndicated Facility and
where the sum of their Total Exposures under that Syndicated
Facility is A$20,000,000 or more, the Facility Agent in
relation to that Syndicated Facility; or
(c) in relation to any Creditor (other than a member of a Creditor
Group) which has provided an Approved Facility (excluding a
Syndicated Facility) and which has a Total Exposure of
A$20,000,000 or more, that Creditor.
PERMITTED SECURITY INTEREST means:
(a) any charge or lien arising in favour of any Governmental
Agency by operation of statute provided there is no default in
payment of money secured by such charge or lien;
(b) any mandatory deposit referred to in paragraph (b) or (c) of
the definition of SECURITY INTEREST arising solely because of
a movement in exchange rates which has the result that the
principal amount of any accommodation when converted from the
currency in which it is denominated into the currency of the
commitment of the provider of that financial accommodation
exceeds the commitment, provided that the amount of the
deposit is not more than the excess;
(c) any deposit of money which is made by a member of the Group in
the ordinary course of business with a bank or other financial
institution other than a deposit referred to in paragraph (b)
or (c) of the definition of SECURITY INTEREST and other than a
deposit which that member has been required by that bank or
financial institution to make as a condition of providing or
continuing to provide any financial accommodation;
(d) any Security Interest on any undertaking or asset of any
member of the Group which is:
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(i) outstanding at the date of this Deed and either
referred to in the Guarantor's 30 June 1992 audited
accounts or notified to the Trustee at least 10 days
prior to the execution of this Deed;
(ii) outstanding at the time the undertaking or assets the
subject of the Security Interest is acquired by such
member of the Group (provided that the Security
Interest is not created in contemplation of such
acquisition);
(iii) created by any person which becomes such a member of
the Group after the date of this Deed (provided such
Security Interest is not created in contemplation of
that person becoming such a member and that person
becoming such a member is permitted by the terms of
this Deed) and in existence at the time of the person
becoming such a member
provided that:
(A) the Security Interest is not renewed or
extended;
(B) the principal amount of any Financial
Indebtedness or other obligation secured by
the Security Interest is repaid on or prior
to the original stated amortisation schedule
or maturity; and
(C) the principal amount secured by the Security
Interest is not increased;
(e) any Security Interest created under a Transaction Document;
(f) any Security Interest created over any specific asset or
specific property of any member of the Finance Group in favour
of a person whose only recourse for the payment or repayment
of the indebtedness secured by that Security Interest is to
that asset or property, and not to any other asset or property
of that member or to that member personally;
(g) any Security Interest created in favour of Foster's Brewing
Group or a Guarantor (but only for so long as the Guarantor in
whose favour the Security Interest has been created remains a
Guarantor);
(h) any Security Interest created by a member of the Group (other
than Foster's Brewing Group, a Borrower, a Guarantor or a
Restricted Subsidiary) over a Project Asset of that member
provided that it secures:
(i) in the case of a Security Interest over assets or
property falling within paragraph (a) of the
definition of PROJECT ASSETS, Limited Recourse
Indebtedness incurred by that member; or
(ii) in the case of a Security Interest over shares or
equity interests falling within paragraph (b) of the
definition of PROJECT ASSETS, Limited Recourse
Indebtedness incurred by the immediate Subsidiary of
that member;
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(i) any Security Interest created by a member of the Group (other
than Foster's Brewing Group, a Borrower or a Restricted
Subsidiary) securing any Financial Indebtedness incurred for
the purpose of repaying or refinancing all or any of the
Limited Recourse Indebtedness secured by a Security Interest
described in paragraph (h) of this definition (EXISTING
SECURITY) if:
(i) the Security Interest does not extend to any asset or
property which was not expressed to be subject to the
Existing Security;
(ii) the Security Interest does not secure a principal
amount exceeding the principal amount which was
outstanding and secured by the Existing Security at
the time of repayment or refinancing; and
(iii) the Financial Indebtedness is Limited Recourse
Indebtedness;
(j) any deposit of money which is made by a member of the Group as
part of the ordinary course of business of that member where
that deposit is subject to a set-off arrangement in relation
to overdraft accommodation or cash management programmes
provided to that or any other member;
(k) any deposit of money or securities which is made with any
person or any charge, mortgage or other security interest over
such a deposit in favour of any person under an arrangement
designed to pay or discharge in full any liability of a member
of the Group under any outstanding Instrument or Lease,
provided that:
(i) the term of that deposit does not extend beyond the
maturity or term of the relevant Instrument or Lease;
and
(ii) where the arrangement relates to an outstanding
Instrument, any deposit of securities comprises
securities of a like nature and value to the
Instrument;
(l) any Security Interest (other than a Security Interest referred
to in paragraphs (a) to (k) inclusive above) created by a
member of the Group so long as the aggregate outstanding
principal amount secured by all such Security Interests
created by that and any other member of the Group and the
Security Interest proposed to be created at no time exceeds
A$30,000,000 (or its equivalent).
POTENTIAL EVENT OF DEFAULT means anything which, with the giving of
notice, passage of time or making of any determination by any party
entitled to do so under the relevant document or agreement, or any
combination of the three, would become an Event of Default.
POWER OF ATTORNEY means the power of attorney dated 16 February 1993
and granted by Foster's Brewing Group in favour of certain persons for
the purposes of executing Creditor Accession Deeds (Australian Capital
Territory Registrar of Tiles registration number 75290).
PRINCIPAL AMOUNT means, on any day, in relation to a Creditor and any
Approved Facility (other than a Transactional Facility) of that
Creditor:
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(a) comprising loans or cash advances, the total principal amount
of the loans and cash advances then outstanding to that
Creditor;
(b) for the acceptance, endorsement, subscription, discounting or
underwriting of Instruments, the total face amount of the then
outstanding Instruments then held by, or payable to, that
Creditor or which have been accepted or endorsed by that
Creditor;
(c) for the issue or making of Guarantees by that Creditor for the
account of a Borrower:
(i) which secure any amounts referred to in this
definition (but on the basis that the references to
any Creditor or Borrower in this definition are to
any person), the lesser of the maximum amount
(actually or contingently) claimable against the
Creditor under those Guarantees and those amounts; or
(ii) which secure any other obligation or liability, the
maximum amount (actually or contingently) claimable
against the Creditor under those Guarantees,
as at that day;
(d) for the purchase of goods or other property or services where
payment of the purchase price to that Creditor is deferred, so
much of that purchase price which is then outstanding;
(e) for the purchase of goods or other property or services where
the purchase price has been paid in advance by that Creditor,
so much of the purchase price which is attributable to the
goods, other property or services which are then undelivered
or unperformed;
(f) for the acquisition, subscription or underwriting of any
shares or stocks in any body corporate or units in any trust,
the total capital amount payable to that Creditor upon the
redemption, buy-back or other disposal of those marketable
securities then held by that Creditor;
(g) comprising Leases, the amount (if any) actually or
contingently payable to that Creditor under the Leases
(assuming that all those Leases which have not then been
terminated are terminated on that day);
(h) for the provision of any other form of financial accommodation
the principal element of the financial accommodation then
owing to the Creditor as certified by that Creditor from time
to time to the Trustee and Foster's Brewing Group.
PROJECT means any project or development undertaken or proposed to be
undertaken by any member of the Group involving:
(a) the acquisition of assets or property;
(b) the development of assets or property for exploitation; or
(c) the acquisition and development of assets or property for
exploitation.
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PROJECT ASSETS means:
(a) any asset or property of a member of the Group (other than
Foster's Brewing Group, a Borrower or a Restricted Subsidiary)
relating to the creation or development of a Project or
proposed Project of that member in a jurisdiction outside of
Australia including any assets or property of that member
derived from, produced by or related to that Project; and
(b) any fully paid shares or equity interests in any member of the
Group which are held by the immediate holding entity of that
member provided that:
(i) all of the assets (other than minor or insignificant
assets of little or no commercial value) of that
member relate to, or arise from, that Project or
proposed project in a jurisdiction outside of
Australia;
(ii) that member carries on no business other than the
business of that Project or proposed Project; and
(iii) there is no recourse to the immediate holding entity
other than to those fully paid shares or equity
interests and the rights and proceeds in respect of
those shares or equity interests.
RATINGS AGENCY means Standard & Poor's Australia Pty Ltd or Moody's
Investor Services Pty Ltd.
RECOVERED MONEYS means, subject to Clause 13.9:
(a) any moneys received or recovered by the Trustee from a
Borrower or from a Guarantor after the Trustee gives a notice
under Clause 5.2;
(b) any moneys received or recovered by the Trustee from any
disposal of, or other dealing with, any asset of a Borrower or
of a Guarantor after the Trustee has given a notice under
Clause 5.2;
(c) any moneys paid by a Creditor to the Trustee under Clause
5.3(f), 5.10, 6 or 27;
(d) any moneys arising from the holding, liquidation, realisation
or disposal of an investment made under Clause 19 by initially
using any moneys referred to in the other paragraphs of this
definition;
(e) any interest on the moneys referred to in the previous
paragraphs and any interest on such interest.
REGISTER has the meaning given in Clause 9.1.
RELATED COMPANY has the meaning given to Related Body Corporate in the
Corporations Law.
RELEVANT DOCUMENT means a Transaction Document or a Facility Document.
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RELEVANT PERSON means, in relation to any representation or warranty
made or repeated by or on behalf of a Guarantor or Borrower in relation
to a Relevant Document being:
(a) a Transaction Document, the Trustee; or
(b) a Facility Document, each Creditor in relation to that
Facility Document or, if applicable, its Facility Agent.
REPRESENTATIVE means, in relation to a Creditor, any person (other than
the Trustee) nominated by that Creditor to Foster's Brewing Group and
the Trustee as the person appointed to act as its agent, nominee, or
trustee in relation to the Transaction Documents.
RESTRICTED SUBSIDIARY means, at any time, a Major Subsidiary and for
the purposes only of:
(a) Clauses 3.1(p), 4.1(e), (g), (l) and 5.1(b)(iv)(B), (c), (d),
(e), (g), (i) and (j) includes at any time each Intermediate
Subsidiary of that Major Subsidiary unless that Major
Subsidiary is then a Guarantor; and
(b) Clause 4.1(m) includes each Intermediate Subsidiary of the
Major Subsidiary.
SECURITY INTEREST means any mortgage, pledge, lien or charge or any
security or preferential interest or arrangement of any kind, or any
other right of or arrangement with any creditor to have its claims
satisfied prior to other creditors with, or from the proceeds of, any
asset including, without limitation:
(a) retention of title other than in the course of day-to-day
trading;
(b) any deposit of money by way of security; and
(c) any deposit of money on terms that it is not repayable in
whole or in part until Financial Indebtedness of the depositor
or another person has been paid or repaid in whole or in part.
SEPARATE SECURITY means any Security Interest or Guarantee created by
any member of the Group (other than under a Transaction Document) in
favour of a Creditor (alone or with another person) which secures any
of the Guaranteed Moneys or any moneys payable by a Guarantor or
Borrower under the Transaction Documents.
SUBORDINATED INDEBTEDNESS means any debt (whether or not convertible
into or exchangeable for equity) which:
(a) is raised by Foster's Brewing Group, a Treasury Subsidiary or
any other member of the Group (excluding any other member
which is a Guarantor or Restricted Subsidiary) whose Total
Tangible Assets and Intangible Assets as disclosed in the most
recent consolidated audited balance sheet of Foster's Brewing
Group (or, in the case of a Subsidiary, the balance sheet of
that Subsidiary (after eliminating any intra-Group items which
would be eliminated from Foster's Brewing Group's annual
audited balance sheet on consolidation) have an aggregate
value of not more than A$50,000,000; and, if applicable
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(b) is guaranteed by Foster's Brewing Group, a Treasury Subsidiary
or any other member of the Group (excluding any other member
which is a Guarantor or Restricted Subsidiary) whose Total
Tangible Assets and Intangible Assets as disclosed in the most
recent consolidated audited balance sheet of Foster's Brewing
Group have (or, in the case of a Subsidiary, the balance sheet
of that Subsidiary (after eliminating any intra-Group items
which would be eliminated from Foster's Brewing Group's annual
audited balance sheet on consolidation) an aggregate value of
not more than $A50,000,000,
and which debt and, if applicable, guarantee shall be subordinated to
the satisfaction of the Trustee (acting on the instructions of the
Majority Creditors) to the claims of all other unsecured creditors of
such person (including, without limitation, to the claims of any person
which arise as a result of the execution of any Relevant Document and
the claims of the Creditors under the Relevant Documents) other than
creditors whose claims against such person are agreed to be
subordinated, in the event of Liquidation of such person, in any manner
(other than by statute) to the claims of all other unsecured creditors
of such person other than other creditors whose claims are also so
subordinated.
When a debt which would otherwise be regarded as Subordinated
Indebtedness is raised by a member of the Group which is not a
Guarantor, the debt shall only constitute Subordinated Indebtedness if
the proceeds of the debt have been advanced by way of loan to a
Treasury Subsidiary which is a Guarantor, which loan is subordinated to
the satisfaction of the Trustee (acting on the instructions of the
Majority Creditors) on the same basis as in the preceding paragraph.
SUBSIDIARY has the meaning given in the Corporations Law but so that a
corporation is also deemed to be a Subsidiary of another corporation if
that other corporation has appointed or is in a position to appoint a
director or directors who are in a position to cast, or control the
casting of, more than one-half of the maximum number of votes that
might be cast at a meeting of the board of directors of the
first-mentioned corporation. For the purposes of this definition the
holding by a corporation (the FIRST CORPORATION) of an option to
purchase shares in the capital of another corporation (the SECOND
CORPORATION) shall not be taken to mean that the first corporation is
in a position to appoint such a director or such directors of the
second corporation unless the terms of the option prior to its exercise
permit the first corporation to appoint such a director or such
directors.
SYNDICATED FACILITY means any Facility:
(a) which two or more Creditors have provided or agreed to provide
to a member of the Group (alone or with another member of the
Group); and
(b) in respect of which an agent, nominee or trustee has been
appointed by those Creditors to administer the Facility.
TAX includes any tax, levy, impost, deduction, charge, rate, duty,
compulsory loan or withholding which is levied or imposed by a
Governmental Agency,
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together with any interest, penalty, charge, fee or other amount
imposed or made on or in respect of any of the foregoing, and TAXATION
shall be construed accordingly.
TOTAL EXPOSURE of a Participating Creditor, being:
(a) a Creditor Group Representative, means, at any day, the
aggregate of the Exposures (excluding Exposures under
Syndicated Facilities) of the Creditors comprising its
Creditor Group;
(b) a Facility Agent of a Syndicated Facility, means, at any day,
the aggregate of the Exposures of all Creditors under that
Syndicated Facility; or
(c) any other Creditor, means, at any day, the aggregate of its
Exposures (excluding its Exposure under a Syndicated
Facility),
as at that day.
TOTAL LIABILITIES means at any time the aggregate amount of all secured
and unsecured actual liabilities and provisions of Foster's Brewing
Group and its Subsidiaries (including, without limitation, any in
respect of Financial Indebtedness) at that time and all secured and
unsecured contingent liabilities (including, without limitation, any in
respect of Financial Indebtedness) the amounts of which are disclosed
or required to be disclosed in the books of account of any member of
the Group in accordance with generally accepted Australian accounting
principles and practices, but excluding:
(a) (SUBORDINATED INDEBTEDNESS): Subordinated Indebtedness,
and adjusted as necessary:
(b) (ELIMINATIONS): to eliminate all inter-company balances;
(c) (FURTHER ADJUSTMENTS): to make any further adjustments which
in the opinion of the Auditor are appropriate to make a proper
determination of the total liabilities of Foster's Brewing
Group and its Subsidiaries on a consolidated basis in
accordance with the Corporations Law and, to the extent not
inconsistent, generally accepted Australian accounting
principles and practices; and
(d) (TREASURY TRANSACTIONS): for the purposes of Clause 4.2(a) of
this Deed only, to value all Treasury Transactions entered
into for hedging purposes on a net basis, not a gross basis.
TOTAL SECURED LIABILITIES means, at any time, that portion of Total
Liabilities in respect of which any member of the Group has created,
assumed or caused to exist any Security Interest or which is secured by
any Security Interest.
TOTAL TANGIBLE ASSETS in relation to any person means all assets of
such person and its Subsidiaries, determined on a consolidated basis,
less:
(a) provisions applicable to such assets; and
(b) the amount of such assets which are Intangible Assets
(Excluded),
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and for the purposes of Clause 4.2(b) of this Deed only, adjusted as
necessary to value all Treasury Transactions entered into for hedging
purposes on a net basis, not a gross basis.
TRANSACTION DOCUMENT means:
(a) this Deed;
(b) any document evidencing any Guarantee or Security Interest
which is given to the Trustee in its capacity as trustee of
the Creditors; or
(c) any document (including a Guarantor Accession Deed and a
Borrower Accession Deed but excluding a Facility Document)
which is supplemental or collateral to, or entered into under,
or for the purpose of amending or novating any document
referred to in paragraph (a) or (b).
TRANSACTIONAL FACILITY means any Facility under which indebtedness has
been or may be incurred by any member of the Group:
(a) in the ordinary course of its business by way of overdraft
facility, leasing facility, guarantee facility (other than for
the purpose of securing Financial Indebtedness), bond or
letter of credit facility for the purpose of trading or
analogous facilities for the purposes of trading; or
(b) under a Treasury Transaction.
TREASURY SUBSIDIARY means each of Treasury Aust., Treasury U.K.,
Treasury Canada, FBG Finance Limited and any other Subsidiary of
Foster's Brewing Group whose sole function is to raise financial
accommodation and to provide financial accommodation to other members
of the Group.
TREASURY TRANSACTION means any interest, commodity or currency
exchange, hedge, swap, option or future contract or other similar
arrangement of any kind (including, without limitation, any forward
exchange or purchase agreement).
TRUST FUND means:
(a) the amount held by the Trustee under Clause 2.1;
(b) the benefit of all representations, warranties, undertakings
and obligations of the Borrowers and Guarantors in the
Transaction Documents;
(c) the benefit of all Guarantees and Security Interests which are
given to the Trustee in its capacity as trustee of the
Creditors; and
(d) all Recovered Moneys and Excluded Moneys (as defined in Clause
13.9).
1.2 INTERPRETATION
In this Deed headings are for convenience only and shall not affect
interpretation and except to the extent that the context otherwise
requires:
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(a) references to any legislation or to any provision of any
legislation include any modification or re-enactment of, or
any legislative provision substituted for, and all statutory
instruments issued under, such legislation or such provision;
(b) words denoting the singular include the plural and vice versa;
(c) words denoting individuals include corporations and vice
versa;
(d) words denoting any gender include all genders;
(e) references to any document or agreement (including this Deed)
include references to such document or agreement as amended,
novated, supplemented or replaced from time to time;
(f) references to Clauses, paragraphs, Annexures and Schedules are
to clauses, paragraphs, annexures and schedules of this Deed;
(g) references to any party to this Deed or any other document or
agreement include its successors or permitted substitutes or
assigns;
(h) WRITING and cognate expressions include all means of
reproducing words in a tangible and permanently visible form
and facsimile;
(i) references to A$ means Australian dollars and references to U$
means dollars of the United States of America;
(j) references to corporations include companies; and
(k) references to laws include references to regulations.
1.3 DETERMINATIONS AND CERTIFICATES
Except where otherwise provided in this Deed any determination or
certificate by the Trustee, or by an Authorised Officer of the Trustee
on the Trustee's behalf, provided for in this Deed as to any matter,
fact or thing (including, without limitation, interest, fee and
exchange rates and amounts payable under this Deed) shall be
satisfactory evidence unless the contrary is proved.
1.4 DOCUMENT OR AGREEMENT
In this Deed references to an AGREEMENT include any Security Interest,
Guarantee, undertaking, deed, instrument or agreement and include any
agreement or legally enforceable arrangement whether or not in writing
and references to a DOCUMENT include any agreement (as so defined) in
writing, or any certificate, notice, instrument or document of any kind
whatsoever.
1.5 CURRENT ACCOUNTING PRACTICE
(a) In this Deed the definitions of Finance Lease, Earnings,
Intangible Assets (Excluded), Intangible Assets (Included),
Net Interest Expense, Minority Shareholder Interests, Total
Liabilities and Total Tangible Assets contained in Clause 1.1
and references to accounting terms are to be interpreted in
accordance with accounting principles generally accepted in
Australia and consistently applied (as used in Foster's
Brewing Group's most recent audited annual consolidated
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financial statements from time to time except such departures
or adjustments as are permitted under this Deed or as
disclosed in such accounts and approved by the Auditor).
(b) A certificate as to such interpretation by the Auditor shall
be conclusive and binding on the parties.
(c) References to accounts include the notes to such accounts.
1.6 CERTIFICATION
Except where a Transaction Document expressly provides otherwise, any
requirement in a Transaction Document:
(a) for a certificate to be given in relation to or by a Borrower
or a Guarantor; or
(b) for a copy of a document to be certified by a Borrower or a
Guarantor,
will be satisfied if, in the case of paragraph (a), it is given by or,
in the case of paragraph (b), the document is certified as a true,
correct and up to date copy of the original by any of the directors or
secretaries of the Borrower or Guarantor (as the case may be) or by
such officers of the Borrower or Guarantor (as the case may be) as are
acceptable to the Trustee.
1.7 OBLIGATIONS AND RIGHTS SEVERAL
(a) The obligations and rights of each Creditor under the
Transaction Documents are several and:
(i) failure of a Creditor to carry out its obligations
does not relieve another Creditor of its obligations;
(ii) no Creditor is responsible for the obligations of
another Creditor; and
(iii) moneys owing to a Creditor under a Transaction
Document constitute a separate and independent debt
from such moneys owing to another Creditor.
(b) Except as otherwise expressly provided in a Transaction
Document:
(i) each Creditor has the right in its own name to
protect and enforce its rights, powers and remedies
arising under each Transaction Document to which it
is party; and
(ii) it is unnecessary for the Trustee or another Creditor
to be joined as an additional party to any
proceedings by a Creditor under any such Transaction
Document.
1.8 TRANSACTIONAL FACILITIES
(a) A Creditor does not receive the benefit of the representations
and undertakings contained in Clauses 3 and 4 in respect of
any Approved Facility which is a Transactional Facility.
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(b) A Creditor may only enforce its rights against the relevant
Borrower under, or in respect of, an Approved Facility which
is a Transactional Facility in accordance with the terms of
that Transactional Facility (and not under Clause 5.2).
Notwithstanding the foregoing, a Creditor under an Approved
Facility which is a Transactional Facility is entitled to the
benefit of the provisions of Clause 6 and to exercise the
rights conferred on a Creditor in that Clause, in relation to
moneys which have fallen due for payment under such
Transactional Facility but remain unpaid in whole or in part.
(c) A Facility Document in relation to a Transactional Facility
shall be deemed not to be a Facility Document or a Relevant
Document for the purposes of Clauses 3, 4 and 5.
1.9 BORROWERS WHICH ARE NOT PARTY TO THIS DEED
Notwithstanding any other provisions in this Deed, any Facility
Document giving effect to an Approved Facility under which a Borrower
is not a party to this Deed may contain an event of default or
termination event (howsoever called) which would entitle the Creditor
under that Facility Document to declare all moneys owing (whether
actually or contingently) under that Facility Document in respect of
that Approved Facility to be immediately due and payable if the Trustee
gives a notice under Clause 5.2.
2. DECLARATION OF TRUST
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2.1 DECLARATION OF TRUST
The Trustee declares that it holds the sum of A$10 in the Australian
Capital Territory and will hold the Trust Fund on trust for itself and
the Creditors upon and subject to the terms and conditions of this Deed
and the other Transaction Documents.
2.2 TERM OF TRUST
(a) The trust established under this Deed commences on the date of
this Deed.
(b) Unless determined earlier that trust is to end on the day
prior to the twenty-first anniversary of the date of this
Deed.
2.3 NAME OF TRUST
The trust established under this Deed is to be known as the FBG Group
Financing Trust.
2.4 SUPPLEMENTAL DOCUMENTS
The terms of the other Transaction Documents supplement this Deed and
apply to the relationship between the Trustee as trustee of the FBG
Group Financing Trust and the Creditors as beneficiaries of that trust.
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3. REPRESENTATIONS AND WARRANTIES
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3.1 REPRESENTATIONS AND WARRANTIES OF EACH BORROWER AND GUARANTOR
Each Borrower and Guarantor makes in respect of itself, and Foster's
Brewing Group in respect of itself and each of the Borrowers and
Guarantors makes, the following representations and warranties to the
Trustee for and on behalf of the Creditors and to such Creditors:
(a) (STATUS): It is a corporation validly existing under the laws
of the place of its incorporation as specified in a Relevant
Document.
(b) (CORPORATE POWER): It has the corporate power to enter
into and perform its obligations under the Relevant
Documents to which it is expressed to be a party, to carry out
the transactions contemplated by those documents and to carry
on its business as now conducted or contemplated.
(c) (CORPORATE AUTHORISATIONS): It has taken all necessary
corporate action to authorise the entry into and performance
of the Relevant Documents to which it is expressed to be a
party, and to carry out the transactions contemplated by those
documents.
(d) (DOCUMENTS BINDING): Each Relevant Document to which it is
expressed to be a party is its legal, valid and binding
obligation enforceable in accordance with its terms.
(e) (TRANSACTIONS PERMITTED): Neither the execution and
performance by it of the Relevant Documents to which it is
expressed to be a party nor any transaction contemplated under
any such document will violate in any respect any provision
of:-
(i) any law or treaty or any judgment, ruling, order or
decree of any Governmental Agency binding on it;
(ii) its memorandum of association or articles of
association or other constituent documents; or
(iii) any other document or agreement which is binding upon
it or its assets,
and, except as may be provided by the Relevant Documents, did
not and will not result in:
(iv) the creation or imposition of any Security Interest
on any of its assets under any of the foregoing; or
(v) the acceleration or cancellation of any of its
obligations with respect to any Financial
Indebtedness, or anything which constitutes (or
which, with the giving of notice and/or lapse of time
would constitute) an event of default, cancellation
event, prepayment event or similar event (whatever
called) under any of its agreements relating to
Financial Indebtedness.
(f) (AUTHORISATIONS): Except as disclosed to the Relevant Person
in writing before the date of such Relevant Document, all
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Authorisations, if any, required in connection with the
execution, delivery or performance by it and the validity and
enforceability of the Relevant Document to which it is a party
and the transactions contemplated by such document, as at that
date, have been obtained or effected and are in full force and
effect.
(g) (NO MISREPRESENTATION):
(i) All statements, purported to be statements of fact,
provided by it to any Creditor or the Trustee under
or in connection with a Relevant Document are true as
at the date the statement is provided and, as at that
date, are not, by the omission of information or
otherwise, misleading in any material respect.
(ii) Each estimate, projection or forecast provided by it
to any Creditor or the Trustee under or in connection
with any Relevant Document has been prepared with due
care and skill and is based upon all the information
which it reasonably believes to be relevant and no
facts are known to it which would have resulted in
any change to any such estimate, projection or
forecast.
(h) (NO UNDISCLOSED AGREEMENTS): There are in existence no
documents or agreements to which it is expressed to be a party
which have not been disclosed to the Relevant Person and are
material in the context of the Relevant Documents or which
have the effect of varying any of the Relevant Documents.
(i) (COPIES OF DOCUMENTS): All copies of documents and agreements
(including, without limitation, Foster's Brewing Group's
latest audited consolidated accounts and all Authorisations)
given by it or on its behalf to an Indemnified Party
constitute true and complete copies. Such documents and
agreements (other than such accounts) are in full force and
effect.
(j) (NO IMMUNITY): Neither it nor any of its assets enjoys any
immunity from set-off, suit or execution.
(k) (STAMP DUTY): Except as disclosed to the Relevant Person in
writing before the date of a Relevant Document to which it is
a party, no stamp, transaction, registration or similar Taxes,
as at that date, are or will become payable in connection with
the execution, performance and enforcement of that Relevant
Document or any transaction contemplated by any such document
other than nominal duty.
(l) (TAXES ON PAYMENT): Except as disclosed to the Relevant Person
in writing before the date of a Relevant Document to which it
is party, all amounts payable by it under that Relevant
Document may, as at that date, be paid free and clear of and
without deduction for or on account of any Tax.
(m) (SUBMISSION TO LAW AND JURISDICTION): The choice of the law of
Victoria will be recognised in the courts of the jurisdiction
of its
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incorporation and such courts will recognise and will give
effect to any judgment in respect of any Relevant Document
obtained against it in the courts of Victoria.
(n) (NO FILING): Except as disclosed to the Relevant Person in
writing before the date of a Relevant Document to which it is
party, as at that date, it is not necessary or advisable to
file, register or record any such Relevant Document.
(o) (RANKING): Its obligations under the Relevant Documents rank:
(i) at least equally with all its unsecured and
unsubordinated indebtedness, other than indebtedness
preferred by mandatory provisions of law; and
(ii) ahead of all its Subordinated Indebtedness.
(p) (NOT A TRUSTEE): It and each Restricted Subsidiary is not a
trustee of any express trust other than, in the case of
Foster's Brewing Group, any trust of the benefit of
undertakings given by a Creditor in a Facility Document and
other than, in any case, trusts created in the ordinary course
of its or the Restricted Subsidiary's (as applicable)
Business.
3.2 REPRESENTATIONS AND WARRANTIES OF FOSTER'S BREWING GROUP AND THE BORROWERS
AND GUARANTORS
(1) Foster's Brewing Group makes the representations and
warranties in paragraphs (a), (d) and (e); and
(2) each Borrower and Guarantor makes in respect of itself only
the following representations and warranties (excluding
paragraphs (a), (d) and (e)); and
(3) Foster's Brewing Group makes, in respect of itself, each of
the Borrowers, Guarantors and Restricted Subsidiaries and,
where specified, each member of the Group, the following
representations and warranties (excluding paragraphs (a), (d)
and (e)),
to the Trustee for and on behalf of the Creditors and to such
Creditors:
(a) (ACCOUNTS):
(i) Foster's Brewing Group's most recent consolidated and
unconsolidated audited accounts give a true and fair
view of the Group's state of affairs as at the date
to which they relate and the results of its
operations for the accounting period ended on such
date.
(ii) Except as disclosed in writing to the Trustee from
time to time there has been no change in the Group's
state of affairs since such date which would have a
Material Adverse Effect.
(iii) Such accounts have been prepared in accordance with
accounting principles and practices generally
accepted in Australia consistently applied, except to
the extent of departures from such principles and
practices disclosed in
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such accounts and the Group had no significant
liabilities (contingent or otherwise) except those
which are disclosed by or reserved against therein
and except as disclosed in writing to the Trustee
from time to time.
(b) (NO LITIGATION): Except as disclosed to the Trustee before
each date on which the representations in this paragraph are
made or repeated, as at that date:
(i) no litigation, arbitration, tax claim, dispute or
administrative proceedings against it or any member
of the Group are presently current or pending or, to
its knowledge, threatened against it or any member of
the Group, which, individually or in aggregate, would
have a Material Adverse Effect; and
(ii) it has not taken and no member of the Group has taken
any, nor have any other steps been taken or legal
proceedings been started or (to the best of its
knowledge and belief) threatened against it for:
(A) its winding-up, dissolution or
re-organisation; or
(B) the appointment of a receiver, trustee or
similar officer of it or any of its assets
or revenues,
which, individually or in aggregate, would have a
Material Adverse Effect.
(c) (NO DEFAULT): Except as disclosed to the Trustee in writing
before each date on which the representations in this
paragraph are made or repeated, as at that date:
(i) no Borrower, Guarantor or Restricted Subsidiary is in
default under any document or agreement (other than a
Relevant Document) binding on it or its assets where
such default, by itself or in aggregate with any
other such defaults, would have a Material Adverse
Effect;
(ii) no Borrower or Guarantor is in default under any
Relevant Document which default constitutes an event
of default (howsoever called under that Relevant
Document); and
(iii) no event has occurred in respect of a Borrower,
Guarantor or Restricted Subsidiary which is or would
with the giving of notice and/or lapse of time
constitute an event of default, cancellation,
prepayment event or similar event (whatever called)
under any document or agreement binding on it or its
assets.
(d) (TITLE):
(i) As at 30 June of each year, except as referred to in
sub-paragraph (ii), it, and each member of the Group,
will, on that date, be the sole beneficial owner of
all its material assets included in Foster's Brewing
Group's then latest audited consolidated accounts for
the financial year ending on that
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date free and clear of any other third party right or
interest whatsoever.
(ii) None of its assets are subject to any Security
Interest which is not permitted by Clause 4.1(e) or
any agreement to give such a Security Interest.
(e) (TAXES): Except as disclosed to the Trustee before each date
on which the representations in this paragraph are made or
repeated:
(i) it has paid when due all Taxes payable by it other
than Taxes for which it has set aside sufficient
reserves and which are being contested in good faith;
and
(ii) it has paid such contested Taxes after the final
determination or settlement of such contests.
(f) (SHAREHOLDING IN CERTAIN SUBSIDIARIES): All the issued share
capital of each Treasury Subsidiary is directly or indirectly
held and beneficially owned by Foster's Brewing Group.
(g) (TREASURY CANADA): The lending of money forms part of the
ordinary business of Treasury Canada and has done so at all
times since 16 September 1988.
3.3 RELIANCE ON REPRESENTATIONS AND WARRANTIES
(a) Each Borrower and Guarantor acknowledges that the Trustee has
entered this Deed for and on behalf of the Creditors and will
enter each other Relevant Document to which it is a party
dated on or after the date of this Deed (in respect of the
facts and circumstances then existing) for and on behalf of
such Creditors in reliance on the representations and
warranties in this Clause.
(b) Each Borrower and Guarantor acknowledges that each Creditor:
(i) has entered or will enter each Relevant Document to
which it is a party dated on or after the date of
this Deed; and
(ii) will provide or rollover financial accommodation
under the applicable Facility Documents,
(in respect of the facts and circumstances then existing) in
reliance on the representations and warranties in this Clause.
3.4 REPETITION
Each of the representations and warranties in Clauses 3.1 and 3.2 will
(except to the extent waived by the relevant Indemnified Party or
Indemnified Parties for whose benefit the relevant representation or
warranty has been or is to be made) be taken to have been made by:
(a) in the case of Clause 3.1, by each of the Borrowers in respect
of itself and by Foster's Brewing Group in respect of itself
and each Borrower and Guarantor; and
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(b) in the case of Clauses 3.2(a), (f) and (g), by Foster's
Brewing Group; and
(c) in the case of Clause 3.2 (other than Clauses 3.2 (a), (f) and
(g)), by each Borrower and Guarantor in respect of itself
only; and
(d) in the case of Clause 3.2 (other than Clauses 3.2(a), (f) and
(g)), by Foster's Brewing Group in respect of itself, each of
the Borrowers and Guarantors and Restricted Subsidiaries and,
where specified, each member of the Group,
for the benefit of:
(e) the Trustee for and on behalf of the Creditors and the
Creditors, on 30 June and 31 December in each year and when it
enters into a Transaction Document;
(f) each Creditor which is to provide or rollover any financial
accommodation on any day to or for the account of a Borrower
under an Approved Facility, on that day, on the day any
drawdown, selection or rollover notice or other notice
(whatever called) requesting that financial accommodation is
given or rolled over and on the last day of any interest or
funding period in respect of such financial accommodation; and
(g) each Creditor which is party to a Facility Document, when it
enters into that Facility Document,
with respect to the facts and circumstances then existing and, in the
case of paragraphs (f) and (g), on the basis that:
(h) the references to Relevant Document in those Clauses are to
the Transaction Documents and the relevant Creditor's Facility
Documents for the Approved Facility referred to in paragraph
(f), where that paragraph applies, or the Facility Document
referred to in paragraph (g), where that paragraph applies;
and
(i) the reference to a Borrower is to a Borrower to whom that
Creditor provides an Approved Facility.
4. UNDERTAKINGS
--------------------------------------------------------------------------------
4.1 GENERAL UNDERTAKINGS
The following undertakings are given to the Trustee for and on behalf
of the Creditors and to such Creditors except to the extent that the
Trustee (acting on the instructions of, in the case of the undertakings
in Clauses 4.1(e), all Participating Creditors and, in any other case,
of the Majority Creditors) otherwise consents:
(a) (CORPORATE REPORTING AND INFORMATION): Foster's Brewing Group
shall furnish to the Trustee and each Creditor:
(i) (ANNUAL ACCOUNTS): as soon as practicable (and in any
event not later than each 30 September) after the
last day of each of
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its financial years copies of Foster's Brewing
Group's consolidated and unconsolidated audited (by
the Auditor) balance sheet, profit and loss account
and statement in respect of the Group;
(ii) (GROUP BUDGET): as soon as practicable (and in any
event not later than each 31 October) after the
beginning of each of its financial years a copy of
the Group Budget for that financial year;
(iii) (DOCUMENTS ISSUED TO SHAREHOLDERS): promptly (and not
later than the issue date) all documents issued by
Foster's Brewing Group to its shareholders or any
class of them or Australian Stock Exchange Limited;
(iv) (HALF YEARLY ACCOUNTS): as soon as practicable after
31 December each year (and in any event not later
than 28 February in the following year):
(A) copies of Foster's Brewing Group's unaudited
consolidated balance sheet and profit and
loss statement in respect of the half year
ending on that 31 December; and
(B) a statement in respect of that half year
comparing the results for the half year with
the Group Budget and explaining the
variances with the Group Budget (if any);
(v) (SIX MONTHLY CERTIFICATION OF RATIOS): as soon as
practicable (and in any event not later than 60 days)
after 31 December each year) and as soon as
practicable (in any event not later than 120 days)
after 30 June each year, a certificate from two
directors of Foster's Brewing Group confirming that
there has not been any breach of any Financial
Undertaking and providing details of all calculations
confirming compliance with the Financial
Undertakings;
(vi) (RESTRICTED SUBSIDIARIES): a certificate as soon as
practicable but in any event within 14 days after the
publication of Foster's Brewing Group's consolidated
audited balance sheet, listing the Subsidiaries which
are Restricted Subsidiaries as at the end of the
relevant financial year;
(vii) (OTHER INFORMATION): upon request, such other
information in relation to the Group's financial
condition or business (including, without limitation,
calculations (showing all details) of its Financial
Undertakings based on management accounts) as any
Creditor may reasonably request.
(b) (ACCOUNTING PRINCIPLES): Foster's Brewing Group shall ensure
that each balance sheet and profit and loss account furnished
under paragraph (a):
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(i) is prepared in accordance with accounting principles
and practices generally accepted in Australia
consistently applied (if a comparison to previously
applied principles and practices is provided, except
to the extent disclosed in such accounts);
(ii) gives a true and fair view of the financial condition
of the relevant members of the Group and the results
of their operations, as at the date, and for the
period ending on the date, to which such accounts are
prepared; and
(iii) in the case of the accounts referred to in paragraph
(a)(i), is certified as such by the Auditor and a
director of Foster's Brewing Group.
(c) (AUTHORISATIONS): Each of the Borrowers and Guarantors shall
ensure that all Authorisations required for the validity,
enforceability and performance of its obligations under the
Relevant Documents to which it is a party and, where
applicable, the effectiveness of such Relevant Documents as
security with the stated priority, are obtained and promptly
renewed and maintained in full force and effect. It will
provide promptly copies to the Trustee when they are obtained
or renewed.
(d) (NOTICE TO TRUSTEE): Each of the Borrowers and Guarantors
shall give notice to the Trustee and each Creditor as soon as
it becomes aware of:
(i) any Event of Default or Potential Event of Default;
(ii) all litigation, arbitration or similar proceedings to
which any member of the Group is a party which, if
its determination or outcome were adverse to such
member, would have a Material Adverse Effect or which
are material to the operations of any Restricted
Subsidiary or Guarantor;
(iii) any proposal by any Governmental Agency to acquire
compulsorily the whole or any part of the assets or
business of any member of the Group which are
material to the operations of any Restricted
Subsidiary or Guarantor;
(iv) any dispute between any member of the Group and any
Governmental Agency which, if its determination or
outcome were adverse to any member of the Group, or
if it were prolonged, would have a Material Adverse
Effect;
(v) any change in its Authorised Officers, giving
specimen signatures of any new Authorised Officer so
appointed, and, where requested by the Trustee,
evidence satisfactory to the Trustee of the authority
of those Authorised Officers;
(vi) any breach, or any termination, rescission, discharge
(otherwise than by performance) or amendment, of any
Transaction Document;
(vii) in relation to Financial Indebtedness:
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(A) any Subordinated Indebtedness issued after
the date of this Deed by any member of the
Group (including, if requested by the
Trustee, copies of all documentation entered
into in relation to that Subordinated
Indebtedness); and
(B) the creation by any member of the Group of
any Security Interest permitted under Clause
4.1(e), including details of such Security
Interest;
(viii) any person (other than a member of the Group)
becoming a shareholder of any Borrower or Guarantor
(other than, in either case, Foster's Brewing Group).
(e) (NEGATIVE PLEDGE):
(i) Subject to (ii), each of the Borrowers and the
Guarantors shall not, and Foster's Brewing Group
shall ensure that each member of the Group will not,
create or suffer to exist any Security Interest on or
in respect of all or any of its undertaking or assets
except Permitted Security Interests; and
(ii) Foster's Brewing Group shall ensure that:
(A) no member of the Group will create or suffer
to exist any Security Interest in respect of
any Financial Indebtedness or other
obligation of, or for or on account or for
the benefit of, (whether directly or
indirectly), any member of the Finance Group
except for Security Interests created by a
member of the Finance Group in favour of
Foster's Brewing Group, any Guarantor, any
Borrower or any Restricted Subsidiary; and
(B) none of Foster's Brewing Group, the
Borrowers, the Guarantors and the Restricted
Subsidiaries will create or permit to exist
any Security Interest in favour of any
member of the Group other than any Security
Interest created by a Restricted Subsidiary
in favour of a Borrower with the prior
consent of the Trustee (acting on the
instructions of the Majority Creditors) or
any Security Interest created in favour of
Foster's Brewing Group or a Guarantor; and
(C) the Total Secured Liabilities (including any
liabilities secured under any Permitted
Security Interest (except for the
liabilities secured under paragraphs (a),
(b), (c), (e), and (g) of the definition of
Permitted Security Interest) of the Group
may not at any time exceed 10% of the Total
Tangible Assets of the Group.
(f) (TITLE RETENTION): Foster's Brewing Group shall not, and shall
ensure that each other member of the Group will not, enter
into any
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agreement with respect to the acquisition by it of assets on
title retention terms except in the ordinary course of
day-to-day trading.
(g) (CORPORATE EXISTENCE):
(i) Foster's Brewing Group shall do all things to
maintain its corporate existence and the corporate
existence of each Restricted Subsidiary and Guarantor
and shall ensure that neither it nor any Restricted
Subsidiary or Guarantor will transfer its
jurisdiction of incorporation (other than a transfer
from one Australian jurisdiction to another
Australian jurisdiction) without the consent in
writing of the Majority Creditors (which consent
shall not be unreasonably withheld)) but, despite the
foregoing, and provided that the Majority Creditors
have given their consent in writing Foster's Brewing
Group and a Restricted Subsidiary or Guarantor may
enter into any merger or consolidation with another
body corporate if:
(A) in the case of Foster's Brewing Group, a
Restricted Subsidiary or a Guarantor, it is
the surviving or resulting entity and all of
its assets remain with that entity; or
(B) in the case of a Restricted Subsidiary, all
of its assets are transferred to Foster's
Brewing Group, another Restricted Subsidiary
or a Guarantor.
(ii) Foster's Brewing Group shall do all things necessary
to maintain each Borrower's corporate existence and
shall ensure that each Borrower does not transfer its
jurisdiction of incorporation (other than a transfer
from one Australian jurisdiction to another
Australian jurisdiction) but, despite the foregoing,
a Borrower may be dissolved, wound up, cease to carry
on business, enter into any merger or consolidation
or transfer its jurisdiction of incorporation:
(A) with the prior consent of the Creditors to
which the Borrower owes any Guaranteed
Moneys and the Borrower's obligations to the
Creditors to which it owes any Guaranteed
Moneys are assumed by another member of the
Group which is or becomes a party to this
Deed by executing a Borrower Accession Deed;
and
(B) if, in the case of a merger or
consolidation, it is the surviving or
resulting entity and the Creditors of the
surviving or resulting entity and the
Creditors of the merged or consolidated
entity have given their consent.
(h) (COMPLIANCE WITH LAW): Foster's Brewing Group shall, and shall
ensure that each other member of the Group will, duly and
punctually comply with all laws binding upon it and will at
all times act and
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conduct its business on terms which are bona fide, in its best
interests and for its general corporate benefit.
(i) (PAY TAXES):
(i) Foster's Brewing Group shall, and shall ensure each
other member of the Group will, pay when due all
Taxes payable by it other than Taxes for which it has
set aside sufficient reserves and which are being
contested in good faith.
(ii) Foster's Brewing Group shall pay, and shall ensure
that each other member of the Group will pay, such
contested Taxes after the final determination or
settlement of such contests.
(j) (CLASS ORDER): Foster's Brewing Group shall not give any
Guarantee to any trustee or other person in respect of the
liabilities of any member of the Group as contemplated in a
Class Order issued by the Australian Securities Commission
under Section 313 of the Corporations Law.
(k) (EQUAL RANKING): Each of the Borrowers and Guarantors shall
ensure that its obligations under the Relevant Documents rank
at least equally with all its unsecured and unsubordinated
indebtedness other than indebtedness which is preferred by
mandatory provisions of law.
(l) (INSURANCE): Foster's Brewing Group and each Guarantor shall,
and Foster's Brewing Group shall ensure that each other
Borrower, Guarantor and Restricted Subsidiary will, keep its
business and assets insured with reputable underwriters or
insurance companies in the manner and to the extent usual for
companies carrying on a business such as that carried on by
such corporation (taking into account usual self-insurance
practices) including, without limitation, all such workmen's
compensation or similar insurance as may be required under the
law of any state or jurisdiction in which it may be engaged in
business.
(m) (CHANGE OF BUSINESS): Foster's Brewing Group shall, and shall
ensure that each member of the Group will:
(i) maintain at all times the Business as the primary or
dominant business of the Group (other than the
Finance Group);
(ii) not dispose of its business or undertaking or dispose
of any interest in, or right to, any of its assets
(whether or not in a single transaction or in a
number of related or unrelated transactions at the
same time or over time), if to do so would have, or
be likely to have, a Material Adverse Effect; and
(iii) not do anything which would result in:
(A) a change to the primary or dominant business
being carried on by the Restricted
Subsidiaries; or
(B) an adverse change in the size, scope or
value of the Business in Australia of the
Restricted Subsidiaries (taken as a whole);
or
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(C) any franchise, licence, trade mark, patent,
brand name, right or privilege necessary or
desirable for the conduct of a Business in
Australia ceasing to be in full force and
effect or be adversely affected,
if to do so would have, or be likely to have, a
Material Adverse Effect; and
(iv) without limiting Clause 4.1(p), not dispose of any
interest in any shares in a Restricted Subsidiary if
to do so would, or would be likely to, result in any
Business carried on by the Restricted Subsidiaries no
longer being wholly owned and controlled by the Group
unless to do so would not have, or would not be
likely to have, a Material Adverse Effect.
(n) (NON-TREASURY SUBSIDIARY INDEBTEDNESS):
(i) Foster's Brewing Group will ensure that the aggregate
Relevant Indebtedness owing by all Applicable Members
shall not at any time exceed A$100,000,000 (or its
equivalent in other currencies).
(ii) For the purposes of this paragraph (n):
APPLICABLE MEMBER means any member of the Group other
than:
(A) a member of the Finance Group;
(B) any Guarantor;
(C) any Treasury Subsidiary; or
(D) a member of the Group which has only been a
member for less than six months provided
that the Financial Indebtedness of that
member was not created in contemplation of
it becoming a member of the Group and the
Financial Indebtedness of that member is not
increased during the period ending six
months after the date on which it became a
member of the Group.
RELEVANT INDEBTEDNESS means Financial Indebtedness
other than Financial Indebtedness:
(A) owing to any member of the Group;
(B) comprising Guarantees of Financial
Indebtedness which are permitted by this
Deed and which are owing by any Applicable
Member if that Financial Indebtedness
comprises Relevant Indebtedness owing by an
Applicable Member;
(C) where the relevant lender has agreed to seek
to recover the indebtedness only from a
Guarantor and not from any other member of
the Group which has incurred the
indebtedness;
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(D) comprising Financial Indebtedness referred
to in paragraph (D) of the definition of
Applicable Member in (ii) unless, as
referred to in that paragraph, there has
been an increase in the amount of that
Financial Indebtedness, in which case the
amount of the increase will be Relevant
Indebtedness; or
(E) comprising Limited Recourse Indebtedness.
(o) (COMPLIANCE WITH TRANSACTION DOCUMENTS): Foster's Brewing
Group shall, and shall ensure that each other Borrower and
Guarantor will, duly and punctually comply with all other
Transaction Documents to which it is a party.
(p) (WHOLLY OWNED SUBSIDIARIES): Foster's Brewing Group shall
ensure that the following corporations will at all times be
wholly owned subsidiaries of Foster's Brewing Group:
(i) Carlton and United Breweries Limited;
(ii) Carlton and United Breweries (NSW) Limited;
(iii) Queensland Breweries Proprietary Limited; and
(iv) Mildara Blass Limited.
(q) (TREASURY SUBSIDIARY ON-LENDING): Foster's Brewing Group shall
ensure that each Treasury Subsidiary which is not a Guarantor
(NON GUARANTOR) under this Deed will lend to a Guarantor which
is a Treasury Subsidiary (RECIPIENT) all the proceeds of any
financial accommodation which is provided to that Non
Guarantor (other than any financial accommodation provided
under a Transactional Facility).
4.2 FINANCIAL UNDERTAKINGS
Foster's Brewing Group undertakes to the Trustee for and on behalf of
the Creditors which are parties to the Approved Facilities and to such
Creditors as follows except to the extent that the Trustee (acting on
the instructions of the Majority Creditors) otherwise consents.
(a) (CASH GEARING RATIO) The ratio of Financial Indebtedness to
Net Profit After Tax for the 12 month period ending 31
December and 30 June in each year shall not be greater than
5.00:1.00. For the purposes of determining this ratio,
Financial Indebtedness shall be calculated as the simple
average of the month end Financial Indebtedness for the 13
month period commencing on the preceding 31 December or 30
June, as the case may be.
(b) (TOTAL LIABILITIES TO TOTAL TANGIBLE ASSETS): Total
Liabilities plus Minority Shareholder Interests shall not at
any time exceed 70% of Total Tangible Assets of the Group.
(c) (INTEREST COVER): The ratio of Earnings to Net Interest
Expense for each six month period ending 31 December and for
each financial year ending 30 June thereafter shall not be
less than 2.50:1.00.
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4.3 TERM OF UNDERTAKINGS
Each undertaking in this Clause 4 shall continue from the date of this
Deed until the Guaranteed Moneys are fully and finally repaid.
5. EVENTS OF DEFAULT
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5.1 EVENTS OF DEFAULT
Each of the following is an Event of Default (whether or not it is in
the control of any Borrower, Guarantor or Restricted Subsidiary (as the
case may be)).
(a) (OBLIGATIONS UNDER RELEVANT DOCUMENTS): A Borrower or
Guarantor fails:
(i) to pay when due any amount payable by it under any
Relevant Document;
(ii) to comply with any of its obligations under Clause
4.1(g) in respect of a Borrower and such failure, if
capable of remedy, is not remedied within 7 days of
notice of the failure to that Borrower from any
Creditor to which that Borrower owes any Guaranteed
Moneys;
(iii) to comply with any of its obligations under Clauses
4.1(c) and (k) in relation to any Facility Document
(as if all references to any Relevant Document in
those Clauses were to that Facility Document) and
such failure, if capable of remedy, is not remedied
within 7 days of notice from a Creditor in relation
to that Facility Document of the failure;
(iv) to comply with any of its obligations under the
Clauses mentioned in sub-paragraph (iii) above in
relation to any Transaction Document (as if all
references to any Relevant Document in those Clauses
were to that Transaction Document) and, such failure,
if capable of remedy, is not remedied within 7 days
of notice from the Trustee or a Creditor;
(v) to comply with any of its Financial Undertakings
unless the Majority Creditors have waived compliance;
(vi) to comply with its obligations under Clause 4.1(h)
and such failure has, or would be likely to have, a
Material Adverse Effect;
(vii) to comply with any of its other obligations under any
Relevant Document and such failure, if capable of
remedy, is not remedied within 7 days of notice of
the failure from (in the case of a Transaction
Document) the Trustee or (in the case of a Facility
Document) a Creditor in relation to that Facility
Document; or
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(viii) to satisfy within the stipulated time any condition
subject to which the Trustee (in the case of a
Transaction Document) or a Creditor (in the case of a
Facility Document in relation to that Creditor) has
waived compliance with any Relevant Document.
(b) (MISREPRESENTATION):
(i) (IN RESPECT OF A CREDITOR'S FACILITY DOCUMENTS ONLY):
Any representation or warranty in Clauses 3.1(b),
(c), (d), (e), (f), (g), (h), (k), (l), (m), (n) and
(o) (the DOCUMENT PROVISIONS) is not true or is
misleading in any material respect when made or
repeated by or on behalf of a Borrower or Guarantor
in any Relevant Document, or in any document provided
under or in connection with any Relevant Document, in
respect of a Facility Document (as if all references
to any Relevant Document in the Document Provisions
were to that Facility Document).
(ii) (STATUS OF BORROWER): Any representation or warranty
in Clause 3.1(a), (j) or (p) in respect of a
Borrower, is not true or is misleading in any
material respect when made or repeated by or on
behalf of that Borrower in any Relevant Document, or
in any document provided under or in connection with
any Relevant Document.
(iii) (DEFAULT REPRESENTATIONS): Any representation or
warranty in Clause 3.2(c)(i), (ii) or (iii) is not
true or is misleading in any material respect when
made or repeated by or on behalf of a Guarantor or a
Borrower in any Relevant Document, or in any document
provided under or in connection with any Relevant
Document.
(iv) (OTHER MISREPRESENTATIONS): Any representation or
warranty:
(A) in the Document Provisions in respect of a
Transaction Document (as if all references
to any Relevant Document in the Document
Provisions were to that Transaction
Document);
(B) in Clause 3.1(a), (j) or (p) in respect of
any Guarantor or, in respect of Clause
3.1(p) only, a Restricted Subsidiary; or
(C) in any other paragraph of Clause 3 (other
than in Clause 3.2(c)(i), (ii) or (iii)),
is not true or is misleading in any material respect
when made or repeated by or on behalf of a Borrower or
Guarantor in any Relevant Document, or in any document
provided under or in connection with any Relevant
Document.
(c) (CROSS DEFAULT):
(i) Any Financial Indebtedness (other than Limited
Recourse Indebtedness) of any Borrower, Guarantor or
Restricted
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Subsidiary aggregating to at least A$25,000,000 or
its equivalent:
(A) is not paid when due (or within any
applicable grace period); or
(B) becomes due and payable before its stated
maturity or expiry; or
(ii) any facility or obligation granted or owed by any
person to any Borrower, Guarantor or Restricted
Subsidiary to provide financial accommodation which
will comprise Financial Indebtedness (other than
Limited Recourse Indebtedness) or to acquire or
underwrite Financial Indebtedness (other than Limited
Recourse Indebtedness) aggregating to at least
A$25,000,000 or its equivalent is terminated prior to
its stated termination date as a result of an actual
default or event of default, termination event,
cancellation event or special prepayment or similar
event, whatever called.
For the purposes of this paragraph, if a person is required to
provide cash cover for Financial Indebtedness (other than in
respect of margin calls on Treasury Transactions entered into
in the ordinary course of business), that Financial
Indebtedness shall be deemed to be due and payable from the
date of the imposition of that requirement. Sub-paragraphs
(i)(A) and (ii) will not apply in the case of:
(iii) the exercise by a Borrower, Guarantor or Restricted
Subsidiary of an optional right of prepayment or
termination in the absence of any actual default or
event of default, termination event, cancellation
event or special prepayment or similar event,
whatever called;
(iv) a mandatory prepayment, repayment or termination
arising solely because it is unlawful or
impracticable for a person who has provided, or has
agreed to provide, financial accommodation or make,
fund or maintain its participation in that financial
accommodation;
(v) a mandatory prepayment or repayment to, or
termination by, any person which arises solely as a
result of the circumstances mentioned in Clause 5.5
applying to that person (as if all references in that
Clause to any Creditor and any Approved Facility were
to that person and any Facility respectively); or
(vi) a mandatory prepayment or repayment arising solely
because of a movement in exchange rates which has the
result that the principal amount of any financial
accommodation, when converted from the currency in
which it is denominated into the currency in which
the commitment of the provider of that financial
accommodation is expressed, exceeds that commitment.
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(d) (WINDING UP, ARRANGEMENTS, INSOLVENCY ETC.):
(i) An application (other than an application which the
Trustee (acting on the instructions of the Majority
Creditors) is satisfied is a frivolous or vexatious
application or one which is withdrawn within 5
Business Days of being made (in the case of an
application made for winding up by a creditor, which
application is based on the failure to comply with a
statutory demand issued pursuant to Section 459E of
the Corporations Law) or 25 Business Days of being
made (in any other case)) or order is made or a
resolution is passed for the winding up, dissolution,
official management or administration of any
Guarantor or Restricted Subsidiary;
(ii) any Guarantor or Restricted Subsidiary enters into,
resolves to enter into or commences proceedings to
sanction any arrangement, compromise or composition
with or assignment for the benefit of its creditors
or any class of them;
(iii) any Guarantor or Restricted Subsidiary is, or is
deemed under any applicable legislation to be, unable
to pay its debts when they fall due (other than as a
result of a failure to pay a debt or claim the
subject of a good faith dispute) or stops or suspends
or threatens to stop or suspend payment of all or any
class of its debts; or
(iv) any Guarantor or Restricted Subsidiary ceases or
threatens to cease to carry on its business,
except that there shall not be any Event of Default under
either sub-paragraph (i) or (iv) in the case of a resolution
for a voluntary winding up or dissolution or a voluntary
cessation of business which is permitted under Clause 4.1(g).
(e) (ENFORCEMENT AGAINST ASSETS): With respect to all or any of
the assets and undertaking of any Guarantor or Restricted
Subsidiary:
(i) a receiver, receiver and manager, administrative
receiver, official manager, trustee, administrator or
similar officer is appointed or anything analogous
occurs (other than by a person who has enforced or
taken analogous action in respect of an amount of not
more than A$25,000,00 or its equivalent);
(ii) any Security Interest is enforced or analogous
process occurs in respect of an amount in excess of
A$25,000,000 or its equivalent other than, in the
case only of a Security Interest becoming
enforceable, where it has become enforceable solely
as a result of publicly stated intentions to dispose
of assets of the Finance Group or such dispositions
occurring; or
(iii) a distress, attachment or other execution or
analogous process for an amount in excess of
A$25,000,000 or its equivalent is levied or enforced
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other than with respect to any such assets or undertaking
which are subject to a Security Interest which only secures
Limited Recourse Indebtedness and which is a Permitted
Security Interest.
(f) (REDUCTION OF CAPITAL): Without the prior written consent of
the Trustee (which consent shall not be given except with the
approval of the Majority Creditors):
(i) Foster's Brewing Group reduces, or passes a
resolution to reduce, its capital or makes any other
capital distributions to its shareholders (except, in
any case, by the redemption of redeemable shares or
by any buy-back of any of its shares issued pursuant
to an employee share scheme of Foster's Brewing
Group);
(ii) any Guarantor or Restricted Subsidiary other than, in
either case, a wholly-owned subsidiary of Foster's
Brewing Group passes a resolution under Section
188(2) or 205(10) of the Corporations Law or any
equivalent provision; or
(iii) any Guarantor or Restricted Subsidiary other than, in
either case, a wholly owned subsidiary of Foster's
Brewing Group calls a meeting (other than following
and because of a request made by a shareholder of
that Guarantor or Restricted Subsidiary) to consider
any resolution referred to in sub-paragraph (i) or
(ii) above or applies to a court to call such a
meeting or to sanction any resolution or reduction of
capital referred to in sub-paragraph (i) or (ii)
above.
(g) (ANALOGOUS PROCESS): Anything which is analogous to anything
referred to in paragraph (d) or (f) or which has a
substantially similar effect with respect to any Guarantor or
Restricted Subsidiary occurs under any applicable law.
(h) (VITIATION OF RELEVANT DOCUMENTS):
(i) All or any material part of any Relevant Document is
terminated or is or becomes void, illegal, invalid,
unenforceable (other than by reason of a party
waiving any of its rights) or of limited force and
effect;
(ii) any party becomes entitled to terminate, rescind or
avoid all or any material part of any Relevant
Document; or
(iii) any party (other than any Creditor or the Trustee)
alleges or claims that an event described in
sub-paragraph (i) has occurred or that it is entitled
as described in sub-paragraph (ii).
This paragraph (h) will not apply where a Borrower or
Guarantor:
(1) terminates, rescinds or avoids;
(2) is entitled to terminate, rescind or avoid; or
(3) alleges or claims that it has terminated, rescinded
or avoided, or that it is entitled to terminate,
rescind or avoid,
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all or any provisions (the PROVISIONS) of any
Relevant Document:
(4) in accordance with an optional right of termination;
or
(5) as a result of any breach, default or repudiation by
the Trustee or a Creditor under or in relation to the
Relevant Document which entitles the Borrower or
Guarantor to terminate, rescind or avoid the
Provisions.
(i) (MATERIAL ADVERSE CHANGE): Any event or series of events,
whether related or not, occurs (including, without limitation,
any material adverse change in the business, assets or
financial condition of any Borrower, Guarantor or Restricted
Subsidiary) which has, or is likely to have, a Material
Adverse Effect.
(j) (COMPULSORY ACQUISITION):
(i) All or any part of any asset of any Guarantor or
Restricted Subsidiary having a book value in excess
of A$25,000,000 (or its equivalent) is compulsorily
acquired by or by order of any Governmental Agency or
under any law;
(ii) any Governmental Agency orders the sale, vesting or
divesting of all or any part of the assets of any
Guarantor or Restricted Subsidiary; or
(iii) any Governmental Agency takes any step for the
purpose of any of the above or proposes to do so,
and such action would have, or would be likely to have, a
Material Adverse Effect.
(k) (GOVERNMENTAL INTERFERENCE): Any law or anything done by any
Governmental Agency:
(i) wholly or, in any material way, partially renders
illegal, prevents or restricts the performance by a
Borrower or Guarantor or the effectiveness of any
Relevant Document; or
(ii) otherwise has, or is likely to have, a Material
Adverse Effect.
(l) (CHANGE OF CONTROL OF FOSTER'S BREWING GROUP): Foster's
Brewing Group becomes a Subsidiary of another corporation.
(m) (NON GUARANTEEING BORROWERS): Any event in paragraphs (d), (e)
or (f)(ii), (f)(iii), (g), (h) and (j) occurs in relation to
any Borrower which is not a Guarantor (as if all references to
Guarantor in those Clauses were to that Borrower).
5.2 CONSEQUENCES
Upon, and at any time subsequent to:
(a) the occurrence of an Event of Default under Clause 5.1(a)(i)
in relation to any moneys due for payment to a Creditor, that
Creditor or, if that payment is due under a Syndicated
Facility, the applicable Facility Agent may;
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(b) the occurrence of an Event of Default in relation to a
Facility Document under:
(i) Clauses 5.1 (a)(iii) or (b)(i); or
(ii) Clauses 5.1(a)(vii), (a)(viii), (h) or (k)(i) as if
when construing that Clause the references to
Relevant Document appearing in the Clauses referred
to in that Clause were to that Facility Document,
each Creditor in relation to that Facility Document or, if
that Facility Document is in respect of a Syndicated Facility,
the applicable Facility Agent may;
(c) the occurrence of an Event of Default under Clause 5.1(a)(ii),
5.1(b)(ii), 5.1(a)(vi) or 5.1(m) in relation to a Borrower,
each Creditor which has provided an Approved Facility to that
Borrower or, if that Approved Facility is a Syndicated
Facility, the applicable Facility Agent may;
(d) the occurrence of an Event of Default (other than any of the
Events of Default referred to in paragraphs (a), (b), (c) and
(e)), any Creditor or, if that Creditor is party to a
Syndicated Facility, the applicable Facility Agent may; or
(e) the occurrence of an Event of Default referred to in:
(i) Clause 5.1 (a)(iv), (a)(v), (b)(iii), (b)(iv), (c),
(i), (j), (k)(ii) or (l); or
(ii) Clause 5.1(a)(vii),(a)(viii), (h) or (k)(i) in
relation to a Transaction Document (as if all
references in that Clause to any Relevant Document
were to that Transaction Document),
the Trustee shall, if instructed by the Majority Creditors,
if the applicable Event of Default is subsisting, by notice to Foster's
Brewing Group:
(A) declare all moneys owing (whether actually or
contingently):
(1) in the case of a notice delivered by a
Creditor or a Facility Agent on behalf of
the Creditors under a Syndicated Facility
pursuant to paragraph (a), (b), (c) or (d)
by the relevant Borrower or Borrowers to
that Creditor under any Relevant Document or
those Creditors under the Facility Documents
in relation to that Syndicated Facility (as
the case may be); or
(2) in the case of a notice delivered by the
Trustee pursuant to paragraph (e), by all
Borrowers to all Creditors under all
Relevant Documents,
(other than moneys owing in relation to any
Transactional Facility but without prejudice to the
rights arising pursuant to that Transactional
Facility) to be immediately due and payable, upon
which the relevant Borrower or Borrowers or all
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Borrowers (as the case may be) shall immediately pay
or repay all such moneys (and, in the case of
contingent liabilities or Instruments which have not
matured, provide cash cover for the full amount of
such contingent liabilities or the aggregate face
value of such Instruments) to:
(3) in the case of a notice delivered by a
Creditor or a Facility Agent pursuant to
paragraph (a), (b), (c) or (d) that Creditor
or that Facility Agent (as the case may be);
or
(4) in the case of a notice delivered by the
Trustee pursuant to paragraph (e), the
Trustee,
together with accrued interest and fees and all other
such moneys; and/or
(B) cancel (other than in respect of any Transactional
Facility but without prejudice to the rights arising
pursuant to that Transactional Facility):
(1) in the case of a notice delivered by a
Creditor or a Facility Agent on behalf of
the Creditors under a Syndicated Facility
pursuant to paragraph (a), (b), (c) or (d)
that Creditor's or those Creditors' under
the Syndicated Facility (as the case may be)
obligations to provide to the relevant
Borrower or Borrowers any financial
accommodation (including its Limit) under
the applicable Facility Document or Facility
Documents; or
(2) in the case of a notice delivered by the
Trustee pursuant to paragraph (e), the
Creditors' obligations to provide any
financial accommodation (including their
Limits) under the Facility Documents.
5.3 CASH COVER
(a) (LETTERS OF CREDIT AND OTHER CONTINGENT AMOUNTS): Any amount
paid to a Creditor or a Facility Agent on its behalf under
Clause 5.2(A), 5.5 or 6 in respect of the contingent liability
of a Creditor in respect of a Guarantee or any other amount
which is contingently owing, shall be held by, or on behalf
of, the Creditor by way of cash cover for such contingent
liability.
(b) (INSTRUMENT): Any amount paid to a Creditor or a Facility
Agent on its behalf under Clause 5.2(A), 5.5 or 6 in respect
of an Instrument which has not matured, shall be held by, or
on behalf of, the Creditor by way of cash cover for that
Instrument.
(c) (INTEREST): All amounts received and held by, or on behalf of,
the Creditor by way of cash cover under this Deed including,
without limitation, pursuant to paragraph (a) or (b) of this
Clause (and any interest on such amount) shall accrue and be
credited interest at a rate
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and in the manner the Creditor determines would apply to
deposits at call (in the case of cover for amounts
contingently owing) or for the remaining term of any relevant
Guarantee or Instrument, as the case may be, in accordance
with its normal procedures.
(d) (APPLICATION): Without limiting any other provision of any
Relevant Document, the Creditor may at any time apply any such
cash cover and/or any such interest in payment of any
Guaranteed Moneys then payable by the relevant Borrower or
Guarantor to the Creditor.
(e) (REPAYMENT): Any amount held by, or on behalf of a Creditor
by, way of cash cover (or interest on such amount) for an
amount contingently due shall be repaid to the relevant
Borrower or Guarantor on the later of:
(i) such amount ceasing to be contingently due; and
(ii) all Guaranteed Moneys in respect of that Borrower or
Guarantor owing to that Creditor being fully and
finally discharged or paid.
(f) (TO TRUSTEE): Any amount which a Creditor would, but for this
paragraph (f), be required to pay to a Borrower or Guarantor
under paragraph (e), shall be paid by that Creditor to the
Trustee if a notice has been given by the Trustee under Clause
5.2.
5.4 TECHNICAL DEFAULT IN PAYMENT
(a) (DEMONSTRATION OF TECHNICAL REASONS FOR NON-PAYMENT): No
Creditor shall exercise its powers under Clause 5.2(A) or (B)
in respect of a failure by a Borrower or Guarantor to make a
payment to the Creditor required under a Relevant Document as
described in Clause 5.1(a)(i) or (m) if, prior to such
exercise, the relevant Borrower or Guarantor demonstrates to
the satisfaction of the Creditor or, if applicable, its
Facility Agent that:
(i) (A) it instructed bankers to remit the moneys
due in sufficient time for the moneys to be
received by the Creditor or, if applicable,
its Facility Agent at or before the time
specified by the Relevant Document; and
(B) it has sufficient funds in an account or
accounts with those bankers, or sufficient
immediately available facilities (as defined
in paragraph (c)) from those bankers, or (if
the Borrower or Guarantor had no such
account or facilities), those bankers were
put in sufficient funds by the Borrower or
Guarantor;
(ii) such default has arisen by reason of temporary
technical or administrative difficulties in
transferring such payment from those bankers to the
Creditor or, if applicable, its Facility Agent; and
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(iii) such payment is or shall be received in the manner
required by the Creditor or, if applicable, its
Facility Agent on the Business Day following the due
date,
but the Creditor or, if applicable, its Facility Agent may
exercise its powers without waiting for such demonstration if,
in its reasonable opinion, the failure is for reasons other
than those mentioned in (ii) above.
(b) (NO EVENT OF DEFAULT): If the Borrower or Guarantor so
demonstrates before such exercise in respect of a payment not
made on the due date and such payment is received by the
relevant Creditor or, if applicable, its Facility Agent in the
manner required on or before the Business Day following such
failure, the failure to make such payment on or before the due
date shall not constitute an Event of Default.
(c) (DEFINITION OF FACILITIES): The reference in paragraph
(a)(i)(B) to IMMEDIATELY AVAILABLE FACILITIES means, to the
satisfaction of the relevant Creditor or, if applicable, its
Facility Agent facilities in which the Borrower or Guarantor
has done everything necessary (including service of a drawdown
notice in sufficient time, and satisfaction of conditions
precedent) to ensure that the relevant bankers are required to
provide sufficient immediately available funds on the relevant
day, and under which such bankers are actually obliged to
provide such funds on such day.
5.5 TECHNICAL REPAYMENT OF FACILITIES FOR PRUDENTIAL REASONS
If, at any time (the RELEVANT TIME), Foster's Brewing Group becomes a
Subsidiary of another corporation or another corporation becomes a
Subsidiary of Foster's Brewing Group, and if a Creditor certifies in
writing to Foster's Brewing Group within 90 days of the Relevant Time
that:
(a) after having regard to the Creditor's exposure to the Group
prior to the Relevant Time and the exposures of the Creditor
to the corporation of which Foster's Brewing Group has become
a Subsidiary or which has become a Subsidiary of Foster's
Brewing Group (as the case may be); and
(b) in order to ensure that the Creditor may continue to observe:
(i) any applicable banking law, rule, regulation or
prudential lending requirement of any central bank
with whose requirements or requests the Creditor is
required to or is accustomed to comply; or
(ii) its own internal prudential lending requirements or
limits,
it cannot maintain, or must reduce, its Approved Facility or
obligations thereunder, that Creditor may, to the extent necessary to
ensure such observance:
(A) declare the moneys owing to it under any Relevant Document
(whether actually or contingently) to be due and payable, upon
which
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the relevant Borrower or Guarantor shall, on the latest date
permitted for repayment by the applicable law, regulation or
requirement (where paragraph (b)(i) applies) or not later than
the expiry of a period of 120 days after the Relevant Time
(where paragraph (b)(ii) applies) (in either case, the LATEST
DATE), repay such moneys (and, in the case of contingent
liabilities or Instruments which have not matured, provide
cash cover to the relevant Creditor for the full amount of
such contingent liabilities or the aggregate face value of
such Instruments) together with accrued interest and fees in
respect of such moneys; and/or
(B) cancel all or part of its obligations to provide any financial
accommodation (including its Limit) under any Facility
Document, which cancellation shall take effect on the Latest
Date.
5.6 CREDITOR TO NOTIFY TRUSTEE OF 5.2 OR 5.5 NOTICE
(a) At the same time as a Creditor or its Facility Agent gives a
notice to Foster's Brewing Group under Clause 5.2 or 5.5, that
Creditor shall give, or shall ensure that its Facility Agent
(if any) will give, the Trustee a copy of the notice.
(b) The Trustee shall give each other Creditor a copy of that
notice promptly after it is received.
5.7 CONDITIONS PRECEDENT: NO INCREASE IN PRINCIPAL AMOUNT
(a) If a Borrower wishes to rollover, continue or obtain financial
accommodation from a Creditor (the FUNDING CREDITOR) under an
Approved Facility where the effect would be, if no Principal
Amount is outstanding on any day, to create any outstanding
Principal Amount under that Approved Facility on that day or
in any other case, to increase the aggregate Principal Amount
outstanding under that Approved Facility, the Funding Creditor
shall not (except to the extent permitted under Clause 5.8) be
entitled to include or rely on, as conditions precedent to the
provision of that financial accommodation, conditions
precedent the substance of which, in relation to Clauses 3 or
5, are inconsistent with, or more onerous on the Borrower
than, the following conditions precedent:
(i) no Event of Default or Potential Event of Default in
relation to the Borrower, any other Borrower, any
Guarantor or Restricted Subsidiary has occurred which
has not been remedied which entitles (or if the
Potential Event of Default becomes an Event of
Default, would entitle), the Funding Creditor or its
Facility Agent to make a declaration under Clause
5.2(A) or (B);
(ii) no Event of Default or Potential Event of Default in
relation to any Borrower, Guarantor or Restricted
Subsidiary has occurred which has not been remedied
which entitles (or if the Potential Event of Default
becomes an Event of Default,
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would entitle), the Majority Creditors to instruct
the Trustee to make a declaration under Clause 5.2(A)
or (B);
(iii) no payment default (other than a failure arising for
any of the reasons mentioned in Clause 5.4(a)(ii)) by
any Borrower or Guarantor to any other Creditor as
contemplated in Clause 5.1(a)(i), and no failure to
pay any amount which, upon the expiry of any
applicable grace period, would become such a default,
has occurred and remains unremedied;
(iv) no disclosure (DISCLOSURE) has been made by or on
behalf of a Borrower or Guarantor that any of the
representations or warranties (the RELEVANT
REPRESENTATION) in Clause 3.2(a)(ii), (b), (c)(i),
(c)(ii) and (e) (on the basis that the references to
Relevant Document in that paragraph (c)(ii) is to any
Transaction Document) but for the Disclosure, be
untrue or incorrect when made or repeated, other than
a Disclosure which has been either:
(A) revoked by Foster's Brewing Group by notice
to the Trustee and the Funding Creditor and
Foster's Brewing Group has certified that
the Relevant Representation is true with
respect to the facts and circumstances
existing as at the date of the notice; or
(B) approved of by the Trustee (acting on the
instructions of the Majority Creditors);
(v) no disclosure has been made by or on behalf of the
Borrower or a Guarantor that the representation or
warranty in Clause 3.2(c)(ii) will, but for that
disclosure, be untrue or incorrect when made or
repeated to the extent that it relates to any
Facility Document in relation to that Approved
Facility (on the basis that the reference to Relevant
Document in that Clause is a reference to that
Facility Document), other than such a disclosure
which has been approved by the Funding Creditor; or
(vi) save to the extent of any disclosure contemplated in
paragraphs (iv) and (v) but without limiting
paragraph (iv) or (v), no representation or warranty
in Clause 3.1 or 3.2 made or repeated for the benefit
of the Funding Creditor under Clause 3.4 is untrue or
incorrect when made or repeated.
(b) Nothing in paragraph (a) shall prohibit or prevent the Funding
Creditor from including any additional conditions precedent
(including, without limitation, the giving of drawdown,
selection or rollover notices (howsoever called)) in any
Facility Document, the substance of which relates to matters
other than Clause 3 or 5.
(c) (i) Notwithstanding paragraph (a), a Funding Creditor
shall not be obliged to provide further financial
accommodation where:
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(A) a Relevant Potential Event has occurred and
remains unremedied; or
(B) a disclosure has been made by or on behalf
of a Borrower or a Guarantor that the
representation and warranty in Clause
3.2(c)(iii) will, but for the disclosure, be
untrue or incorrect when made or repeated,
and the Majority Creditors have agreed that the
Funding Creditor need not provide the further
financial accommodation.
(ii) Notwithstanding the condition precedent in Clause
5.7(a)(ii) (in the case of a Relevant Potential
Event) or the condition precedent in Clause
5.7(a)(vi) (but only in the case of any such
disclosure in respect of Clause 3.2(c)(iii)), in the
absence of the agreement of the Majority Creditors,
the Funding Creditor shall not be entitled to rely
upon a Relevant Potential Event or any such
disclosure (as the case may be) to refuse to provide
the further financial accommodation.
(iii) In this paragraph (c), RELEVANT POTENTIAL EVENT means
a Potential Event of Default which is a breach of an
obligation (other than a payment obligation) in any
other document or agreement (other than a Facility
Document with the Funding Creditor) which has not
been remedied and which, with the giving of notice,
the passage of time or the making any determination
by any party entitled to do so under the relevant
document or agreement, or any combination of the
three, would become an Event of Default under Clause
5.1(c).
5.8 CONDITIONS PRECEDENT: NO PROVISION OR ROLLOVER OF ACCOMMODATION
If a Borrower wishes to rollover, continue or obtain financial
accommodation on any day (the FUNDING DAY) from a Creditor (the FUNDING
CREDITOR) under an Approved Facility, the Funding Creditor shall not
(except to the extent permitted under Clause 5.7) be entitled to
include or rely on, as conditions precedent to the provision of that
financial accommodation, conditions precedent the substance of which,
in relation to Clauses 3 or 5, are inconsistent with, or more onerous
on the Borrower than, the following conditions precedent:
(a) the Trustee has not made a declaration under Clause 5.2(A) or
(B) in relation to any Borrower or Guarantor;
(b) the Funding Creditor or, where the Approved Facility is a
Syndicated Facility, the Facility Agent for the Syndicated
Facility has not made a declaration under either such Clause
in relation to that or any other Borrower under any Approved
Facility;
(c) each of the representations or warranties in Clauses 3.1(a),
(b), (c), (d), (e), (f), (g), (j), (n), (o) and (p) made for
the Funding Creditor's benefit under Clause 3.4 on the day on
which any drawdown, selection or
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rollover notice or other notice (whatever called) requesting
the provision or rolling over of such financial accommodation
is given and on the Funding Day is true and correct; and
(d) no Event of Default or Potential Event of Default is
subsisting under Clause 5.1(d) in relation to any Borrower
under that Approved Facility.
5.9 NO OBLIGATION TO FUND AFTER REPAYMENT DATE
Nothing in Clauses 5.7 and 5.8 requires any Creditor to rollover,
provide or continue to provide any financial accommodation under an
Approved Facility on or after the stated cancellation, maturity,
termination or repayment date for that Approved Facility.
5.10 ENFORCEMENT BY TRUSTEE
(a) (i) Subject to paragraph (a)(iii), if a Borrower (the
RELEVANT BORROWER) does not make payment in
accordance with a demand given by the Trustee under
Clause 5.2, subject to the subsequent provisions of
this Clause, the Trustee shall pursue all legal
remedies against the Relevant Borrower which the
Creditors (the INSTRUCTING GROUP) to which the
Relevant Borrower owes any Guaranteed Moneys may
direct the Trustee to pursue for the purpose of
obtaining those Guaranteed Moneys and protecting the
interests of each member of the Instructing Group
(other than a Creditor to which paragraph (d)
applies).
(ii) Subject to paragraph (a)(iii), any Creditor to which
the Relevant Borrower owes any Guaranteed Moneys may
by notice to the Trustee elect to pursue its own
legal remedies against the Relevant Borrower to
recover those Guaranteed Moneys without the necessity
for any action on the part of the Trustee.
(iii) If:
(A) the Relevant Borrower is a Guarantor; and
(B) the Trustee has been instructed by the
Majority Creditors to enforce the guarantee
in Clause 6 against the Relevant Borrower,
the provisions of Clauses 6.2 and 6.3 shall apply in
lieu of this Clause 5.10.
(b) If the Trustee is satisfied (whether before or after making
demand as aforesaid) that there is a bona fide dispute with
regard to the payment of the Guaranteed Moneys (or any part
thereof) owing to a Creditor (the AFFECTED CREDITOR) by the
Relevant Borrower having regard to such information, documents
and other evidence as may be presented to it by any person,
the Trustee may take such further action as it sees fit,
including withdrawal of such demand, or may decline to take
any action, in relation to the disputed part of such
Guaranteed Moneys.
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(c) The Relevant Borrower and the Trustee agree that:
(i) the withdrawal of a demand made on the Relevant
Borrower or the declining to take action by the
Trustee against the Relevant Borrower under paragraph
(b) shall not in any way prejudice or affect the
rights of the Affected Creditor against the Relevant
Borrower to obtain payment or repayment from the
Relevant Borrower of any Guaranteed Moneys owing to
the Affected Creditor; and
(ii) any such withdrawal or declining to take action shall
not release the Relevant Borrower from any
obligations under any Facility Document with the
Affected Creditor,
with the intent that, if the Trustee so declines to take any
action or so withdraws a demand under paragraph (b), then the
Affected Creditor shall be entitled to enforce payment or
repayment by the Relevant Borrower of any Guaranteed Moneys
owing to the Affected Creditor directly against the Relevant
Borrower without the necessity for any action on the part of
the Trustee.
(d) If:
(i) the Trustee withdraws any demand or declines to take
any action under paragraph (b) in respect of all of
the Guaranteed Moneys owing by the Relevant Borrower
to an Affected Creditor; or
(ii) a Creditor gives a notice to the Trustee under
paragraph (a)(ii) electing to pursue its own legal
remedies to recover from the Relevant Borrower the
Guaranteed Moneys owing to it by that Relevant
Borrower,
then that Affected Creditor or Creditor shall not be regarded
as a member of the Instructing Group for the purposes of
paragraph (a).
(e) Any moneys recovered from the Relevant Borrower by a Creditor
or Affected Creditor referred to in paragraph (d) shall be
paid by it to the Trustee (after deducting its costs and
expenses in recovering those moneys). Subject to Clause 13.9,
Clause 27 applies to such payment.
(f) The Trustee may, as a condition precedent to making demand
upon any Borrower, or pursuing in accordance with paragraph
(a) any legal remedy against a Borrower to recover any
Guaranteed Moneys then due and payable by it to any Creditors,
require an indemnity from the relevant Creditor or Creditors
in respect of all costs, expenses or liabilities of any nature
which the Trustee will or might incur in respect thereof
and/or, at the discretion of the Trustee, require the relevant
Creditor or Creditors to deposit with the Trustee such sum as
the Trustee may reasonably consider to be the likely amount of
such costs, expenses or liabilities.
(g) Notwithstanding Clause 25.11, the Trustee is not entitled to
be indemnified against those costs, expenses or liabilities by
any other Creditor.
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6. GUARANTEE
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6.1 GUARANTEE
(a) Subject to paragraph (b), the Guarantors jointly and severally
unconditionally and irrevocably guarantee to the Trustee for
and on behalf of the Creditors which are parties to Approved
Facilities the due and punctual payment of the Guaranteed
Moneys.
(b) Subject to paragraph (c), the Guaranteed Moneys owing by
Foster's Brewing Group are not guaranteed under Clause 6.1(a).
Subject to paragraph (c), Clauses 6.2, 6.3, 6.5 and 6.7 to
6.13 inclusive and all references in those Clauses and
paragraph (a) to:
(i) Guaranteed Moneys shall not include the Guaranteed
Moneys owing by Foster's Brewing Group as a Borrower;
and
(ii) Borrower shall not include Foster's Brewing Group.
(c) On and from each date that the undertakings in Clause 10.1
commence to apply by virtue of Clause 10.1(a) until the
Trustee releases and discharges the Guarantors (other than
Foster's Brewing Group and the Treasury Subsidiaries) under
Clause 6.14(b)(E) after that date, paragraph (b) ceases to
apply and:
(i) the Guaranteed Moneys owing by Foster's Brewing Group
shall be jointly and severally unconditionally and
irrevocably guaranteed by the Guarantors under Clause
6.1(a); and
(ii) Clauses 6.2, 6.3, 6.5 and 6.7 to 6.13 inclusive shall
apply as if all references to Guaranteed Moneys shall
include the Guaranteed Moneys owing by Foster's
Brewing Group and all references to Borrower included
Foster's Brewing Group.
6.2 PAYMENT
(a) On demand from the Trustee from time to time each Guarantor
shall pay an amount equal to the Guaranteed Moneys then due
and payable in the same manner and currency which the relevant
Borrower is (or would have been but for its Liquidation)
required to pay the Guaranteed Moneys under the relevant
Facility Document.
(b) The Trustee shall make demand on each Guarantor under Clause
6.2(a) in respect of any Guaranteed Moneys then due and
payable to a Creditor forthwith on receipt from that Creditor
of:
(i) unless the Trustee has given a notice under Clause
5.2, a certificate giving brief particulars of the
Guaranteed Moneys then due and payable to the
Creditor including the amount and currency;
(ii) where such Guaranteed Moneys are obliged to be paid
under an agreement or instrument, a copy of such
agreement or instrument; and
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(iii) unless the Trustee has given a notice under Clause
5.2, a copy of the Creditor's demand for payment on
the relevant Borrower in respect of the Guaranteed
Moneys.
Subject to the foregoing provisions, where the Trustee has
given a notice under Clause 5.2, the Trustee shall make a
demand on each Guarantor on behalf of all Creditors (other
than a Creditor to which Clause 6.3(c)(i) applies) on the
instructions of the Majority Creditors.
(c) On receipt by the Trustee of any amount paid by a Guarantor in
respect of any Guaranteed Moneys then due and payable, whether
pursuant to a demand in accordance with Clause 6.2(b) or as a
result of the pursuit of a legal remedy in accordance with
Clause 6.2(d) or otherwise, such amount shall be trust moneys
in the hands of the Trustee and the Trustee shall:
(i) forthwith pay over such amount to the relevant
Creditor or, if there are two Creditors or more,
those Creditors ratably in accordance with their
entitlements; or
(ii) where the Trustee has given a notice under Clause
5.2, apply the moneys in accordance with Clause 13.
(d) If a Guarantor does not make payment in accordance with such
demand, subject to Clauses 6.2(e) and 6.3, the Trustee shall
pursue all legal remedies which:
(i) unless (ii) below applies, the relevant Creditor; or
(ii) where the Trustee has given a notice under Clause
5.2, the Majority Creditors,
may direct the Trustee to pursue for the purpose of obtaining
the Guaranteed Moneys then due and payable to the relevant
Creditor or, where (ii) above applies, all the Creditors
(other than a Creditor to which Clause 6.3(c)(i) applies) and
protecting the interests of the relevant Creditor or, where
(ii) above applies, all the Creditors (other than a Creditor
to which Clause 6.3(c)(i) applies).
(e) If the Trustee is satisfied (whether before or after making
demand as aforesaid) that there is a bona fide dispute with
regard to the payment of the Guaranteed Moneys then due and
payable to a Creditor (or any part thereof) having regard to
such information, documents and other evidence as may be
presented to it by any person, the Trustee may take such
further action as it sees fit, including withdrawal of such
demand, or may decline to take any action, in relation to the
disputed part of the Guaranteed Moneys.
(f) (i) If a Borrower has failed to make a payment required
under a Facility Document and, before the Trustee
makes a demand under this Clause 6.2, the Borrower
demonstrates the matters referred to in paragraphs
(i), (ii) and (iii) of Clause 5.4(a) to the
satisfaction of the relevant Creditor or, if
applicable, its Facility Agent, then such Creditor
or, if applicable, its Facility Agent shall notify
the Trustee forthwith and the Trustee shall
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not make a demand on a Guarantor in respect of the
failure to make a payment unless such payment is not
received in the manner required by the Creditor or,
if applicable, its Facility Agent, on the Business
Day following the due date.
(ii) The Trustee may exercise its powers under this Clause
6 without waiting for such demonstration if
instructed by the relevant Creditor or, if
applicable, its Facility Agent to do so.
(iii) The Creditor or Facility Agent (as the case may be)
may only give such instructions if, in its reasonable
opinion, the Borrower's failure to make the payment
is for reasons other than those mentioned in Clause
5.4(a)(ii).
(g) The Trustee shall promptly notify each Creditor of any demand
made by it under Clause 6.2. It shall also notify the relevant
Creditor or Creditors if it withdraws any demand or declines
to take any action under Clause 6.2(e).
(h) Each Creditor shall notify the Trustee of any demand made by
it under this Clause 6. The Trustee shall give each other
Creditor a copy of that notice promptly after it is received.
6.3 TRUSTEE RESPONSIBILITY
(a) Each Guarantor and the Trustee agree that, where a Creditor
wishes to take action under and obtain the benefit of the
guarantee herein contained in respect of a Borrower, each
Guarantor and the Creditor concerned shall deal with each
other as principals in relation thereto without the necessity
for the Trustee to become involved or to take any action in
relation thereto except where expressly provided in this
Clause 6 or elsewhere in this Deed. Without prejudice to
paragraph (b), no Creditor may take any such action after the
Trustee has given a notice under Clause 5.2.
(b) Each Guarantor and the Trustee further agree that:
(i) the withdrawal of a demand or the declining to take
action by the Trustee under Clause 6.2(e) shall not
in any way prejudice or affect the rights of
Creditors against each Guarantor to obtain the
benefit of the guarantee herein in respect of a
Borrower; and
(ii) any such withdrawal or declining to take action shall
not release any Guarantor from any obligations under
such guarantee,
with the intent that, if the Trustee so declines to take any
action or so withdraws a demand under Clause 6.2(e), then the
relevant Creditor shall be entitled to enforce the guarantee
directly against each Guarantor without the necessity for any
action on the part of the Trustee.
(c) If the Trustee withdraws any demand or declines to take any
action under Clause 6.2(e) in respect of:
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(i) all of the Guaranteed Moneys owing to any Creditor,
then that Creditor and its Exposure, or
(ii) any part of the Guaranteed Moneys owing to any
Creditor which constitutes a Principal Amount, then
the disputed part of that Principal Amount,
shall not be taken into consideration in determining the
composition of the Majority Creditors for the purposes of
Clauses 6.2(b) and (d).
(d) Any moneys recovered under this Clause 6 by a Creditor
referred to in paragraph (b) after an Event of Default has
occurred which would entitle the Trustee to give a notice
under Clause 5.2, shall be paid by that Creditor to the
Trustee (after deducting the Creditor's costs and expenses in
recovering those moneys). Clause 27 applies to such payment.
(e) The Trustee may, as a condition precedent to making demand
upon any Guarantor, or pursuing in accordance with Clause
6.2(d) any legal remedy against a Guarantor to recover any
Guaranteed Moneys then due and payable to any Creditors,
require an indemnity from the relevant Creditor or Creditors
in respect of all costs, expenses or liabilities of any nature
which the Trustee will or might incur in respect thereof
and/or, at the discretion of the Trustee, require the relevant
Creditor or Creditors to deposit with the Trustee such sum as
the Trustee may reasonably consider to be the likely amount of
such costs, expenses or liabilities.
(f) Notwithstanding Clause 25.11, the Trustee is not entitled to
be indemnified against those costs, expenses or liabilities by
any other Creditor.
6.4 UNCONDITIONAL NATURE OF OBLIGATION
(a) Neither this Deed nor the obligations of any Guarantor under
this Deed will be affected by anything which but for this
provision might operate to release, prejudicially affect or
discharge them or in any way relieve any Guarantor from any
obligation including, without limitation:
(i) the grant to any person of any time, waiver or other
indulgence, or the discharge or release of any
person;
(ii) any transaction or arrangement that may take place
between any Indemnified Party and any person;
(iii) the Liquidation of any person;
(iv) any Indemnified Party becoming a party to or bound by
any compromise, moratorium, assignment of property,
scheme of arrangement, composition of debts or scheme
of reconstruction by or relating to any person;
(v) any Indemnified Party exercising or delaying or
refraining from exercising or enforcing any document
or agreement or any right, power or remedy conferred
on it by law or by any
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Relevant Document or by any other document or
agreement with any person;
(vi) the amendment, variation, novation, replacement,
rescission, invalidity, extinguishment, repudiation,
avoidance, unenforceability, frustration, failure,
expiry, termination, loss, release, discharge,
abandonment, assignment or transfer, in whole or in
part and with or without consideration, of any
Relevant Document or of any other document or
agreement held by any Indemnified Party at any time
or of any right, obligation, power or remedy;
(vii) the taking or perfection of or failure to take or
perfect a document or agreement;
(viii) the failure by any Indemnified Party or any other
person to notify any Guarantor of any default by any
person under any Relevant Document or any other
document or agreement;
(ix) any Indemnified Party obtaining a judgment against
any person for the payment of any Guaranteed Moneys;
(x) any legal limitation, disability, incapacity or
other circumstance relating to any person;
(xi) any change in any circumstance (including, without
limitation, in the members or constitution of a
person or partnership);
(xii) any Relevant Document or any other document or
agreement not being valid or executed by, or binding
on, any person;
(xiii) any increase in the Guaranteed Moneys for any reason
(including, without limitation, as a result of
anything referred to above or the provision of
further Approved Facilities); or
(xiv) laches, acquiescence, delay, acts, omissions or
mistakes on the part of an Indemnified Party or any
person or both an Indemnified Party and any person;
(xv) a Security Interest being void, voidable or
unenforceable;
(xvi) any person dealing in any way with a Security
Interest, Guarantee, judgment or negotiable
instrument (including, without limitation, taking,
abandoning or releasing (wholly or partially),
realising, exchanging, varying, abstaining from
perfecting or taking advantage of it);
(xvii) a change in the legal capacity, rights or obligations
of any person;
(xviii) the fact that any person is a trustee, nominee, joint
owner, joint venturer or a member of a partnership,
firm or association;
(xix) a judgment against any person;
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(xx) the receipt of a dividend after an insolvency event
or the payment of a sum or sums into the account of
any person at any time (whether received or paid
jointly, jointly and severally or otherwise);
(xxi) any part of the Guaranteed Moneys being
irrecoverable;
(xxii) an assignment of rights in connection with the
Guaranteed Moneys;
(xxiii) the acceptance of repudiation or other termination in
connection with the Guaranteed Moneys;
(xxiv) the invalidity or unenforceability of an obligation
or liability of any person;
(xxv) invalidity or irregularity in the execution of this
Deed by a Guarantor or any deficiency in or
irregularity in the exercise of the powers of a
Guarantor to enter into or observe its obligations
under this Deed;
(xxvi) the opening of a new account by a Borrower with a
Creditor or another person or the operation of a new
account;
(xxvii) any obligation of a Borrower or any other Guarantor
being discharged by operation of law or otherwise;
(xxviii) any property secured under a Security Interest being
forfeited, extinguished, surrendered, resumed or
determined;
(xxix) any variation to or amendment of any Facility
Document or any increase or decrease in a Creditor's
Limit under any Facility; or
(xxx) any Borrower not being party to this Deed,
whether with or without the consent or knowledge of the
Guarantors. Without limitation, this Deed binds a Guarantor
even if it is, or has become, the only Guarantor bound. None
of the above paragraphs limits the generality of any other. A
reference to ANY PERSON includes, without limitation, any
Borrower or Guarantor.
(b) The liability of a Guarantor under this Deed is not affected:
(i) because any other person who has intended to enter
into this Deed, or otherwise become a co-surety or
co-indemnifier for payment of the Guaranteed Moneys
or other money payable under this Deed has not done
so or has not done so effectively; or
(ii) because a person who is a co-surety or co-indemnifier
for payment of the Guaranteed Moneys or other money
payable under this Deed is discharged under an
agreement or under statute or a principle of law or
equity.
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6.5 NO MARSHALLING
No Indemnified Party is obliged to perfect or to marshal or appropriate
in favour of any Guarantor or to exercise, apply or recover:
(a) any Security Interest, Guarantee, document or agreement
(including, without limitation, any Relevant Document) held by
an Indemnified Party at any time; or
(b) any of the funds or assets that a Creditor may be entitled to
receive or have a claim on.
6.6 NO COMPETITION
(a) Until the Guaranteed Moneys have been irrevocably paid and
discharged in full no Guarantor is entitled to, and no
Guarantor shall:
(i) be subrogated to any Indemnified Party or claim the
benefit of any Security Interest or Guarantee held by
any Indemnified Party at any time;
(ii) subject to Clause 6.7, either directly or indirectly
prove in, claim or receive the benefit of, any
distribution, dividend or payment arising out of or
relating to the Liquidation of any Borrower, any
other Guarantor or any other person who gives a
Guarantee or Security Interest in respect of any
Guaranteed Moneys; or
(iii) have or claim any right of contribution or indemnity
from any Borrower, any other Guarantor or any other
person who gives a Guarantee or Security Interest in
respect of any Guaranteed Moneys except to the extent
necessary to enable that Guarantor to satisfy any
demand or claim to pay the Guaranteed Moneys.
The receipt of any distribution, dividend or other payment by
the Trustee or any Creditor out of or relating to any
Liquidation will not prejudice the right of any Indemnified
Party to recover the Guaranteed Moneys by enforcement of this
Deed.
(b) As long as the Guaranteed Moneys have not been irrevocably
paid and discharged in full, no Guarantor shall:
(i) in reduction of its liability under this Deed, rely
on any right of contribution or indemnity or the
commencement or prosecution of more than one action
to recover from it any Guaranteed Moneys (including,
without limitation, in relation to any proposed order
by a court for costs), raise a defence, set off or
counterclaim available to itself, a Borrower, any
other Guarantor or co-surety or any other person
against any Indemnified Party or claim a set off or
make a counterclaim against any Indemnified Party; or
(ii) make a claim or enforce a right (other than, subject
to the foregoing provisions of this Clause 6.6, any
right of contribution or indemnity) including,
without limitation, a
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Security Interest against a Borrower or any other
Guarantor or their respective estates or property.
6.7 TRUSTEE MAY PROVE ON GUARANTOR'S BEHALF
(a) Each Guarantor irrevocably appoints the Trustee for and on
behalf of the Creditors and each Authorised Officer of the
Trustee severally its attorneys.
(b) Each attorney may:
(i) in the name of a Guarantor or the attorney do
anything which that Guarantor may lawfully do to
exercise a right of proof of the Guarantor in the
Liquidation of a Borrower, a Guarantor or any other
co-surety or co-indemnifier in connection with any
matter whether or not connected with its rights as
Guarantor (including, without limitation, executing
deeds and instituting, conducting and defending legal
proceedings and receiving any dividend arising out of
that right);
(ii) delegate its powers (including, without limitation,
this power of delegation) to any person for any
period and may revoke a delegation; and
(iii) exercise or concur in exercising its powers even if
the attorney has a conflict of duty in exercising its
powers or has a direct or personal interest in the
means or result of that exercise of powers.
(c) Each Guarantor agrees to ratify anything done by an attorney
or its delegate in accordance with paragraph (b).
(d) No Guarantor may exercise the right of proof referred to in
paragraph (b) independently of the attorney.
(e) The attorney need not account to any Guarantor for any
dividend received on the exercise of that right of proof until
the Guaranteed Moneys have been irrevocably paid and
discharged in full.
(f) The parties acknowledge that the foregoing provisions of this
Clause 6.7 do not constitute a Security Interest. If, contrary
to that acknowledgment, those provisions would, but for this
provision, constitute a Security Interest then those
provisions shall be ineffective as a Security Interest.
6.8 SUSPENSE ACCOUNT
In the event of the Liquidation of a Borrower or any other person
(including, without limitation, any Guarantor), each Guarantor
authorises the Trustee for and on behalf of the Creditors:
(a) to prove for all money which the Guarantors have paid under
this Deed on account of the Guaranteed Moneys owing by that
Borrower or other person; and
(b) (i) to retain and carry to a suspense account; and
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(ii) to appropriate at the discretion of the Trustee,
any dividend received in the Liquidation of the Borrower or
any other person and any other money received in respect of
those Guaranteed Moneys,
until the Guaranteed Moneys have been irrevocably paid and discharged
in full.
6.9 RESCISSION OF PAYMENT
Whenever for any reason (including, without limitation, under any law
relating to Liquidation, fiduciary obligations or the protection of
creditors):
(a) all or part of any transaction of any nature (including,
without limitation, any payment or transfer) which affects or
relates in any way to the Guaranteed Moneys is void, set aside
or voidable;
(b) any claim that anything contemplated by paragraph (a) is so is
upheld, conceded or compromised; or
(c) any Indemnified Party or Former Creditor is required to return
or repay any money or asset received by it under any such
transaction or the equivalent in value of that money or asset,
then:
(d) any affected Former Creditor shall be reinstated as a Creditor
and an Indemnified Party for the purposes of the Transaction
Documents (without the need for any act to be done (including
the giving of an Approved Facility Certificate) or document to
be signed (including any Creditor Accession Deed)) until it
fully and finally recovers:
(i) the amount of money or the value of any asset
returned by it under paragraph (c); and
(ii) the amount of any resulting loss, cost or expense;
(e) each Indemnified Party will immediately become entitled
against each Guarantor to all rights in respect of
the Guaranteed Moneys which it would have had if all or the
relevant part of the transaction or receipt had not taken
place;
(f) each Guarantor shall forthwith take all such steps and sign
all such documents as may be necessary to restore each
Indemnified Party to its previous position (including the
execution of any Guarantee or Security Interest held by that
Indemnified Party); and
(g) the Guarantors jointly and severally shall indemnify each
Indemnified Party on demand against any resulting loss, cost
or expense.
6.10 INDEMNITY
If any Guaranteed Moneys owing by a Borrower (including moneys which
would have been Guaranteed Moneys if they were recoverable) are not
recoverable from the Borrower or from the Guarantors under Clause 6.1
or 6.2 for any reason (including, without limitation, any legal
limitation,
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disability, incapacity or thing affecting the Borrower or the
Liquidation of the Borrower) and an Indemnified Party suffers any loss
as a result then, whether or not:
(a) any transaction relating to the Guaranteed Moneys was void or
illegal or has been subsequently avoided; or
(b) any matter or fact relating to that transaction was or ought
to have been within the knowledge of any Indemnified Party,
the Guarantors jointly and severally shall, as principal obligors, and
as a separate and additional obligation, indemnify that Indemnified
Party on demand against the loss and shall pay an amount equal to the
loss to that Indemnified Party on demand.
6.11 CONTINUING GUARANTEE AND INDEMNITY
(a) Subject to Clause 6.14, this Clause 6:
(i) is a continuing guarantee and indemnity; and
(ii) will not be taken to be wholly or partially
discharged by the payment at any time of any
Guaranteed Moneys or by any settlement of account or
other matter or thing.
(b) Subject to Clause 6.14, the guarantees and indemnities of a
Guarantor under this Clause 6 cannot be revoked or
discontinued by that Guarantor until the later of the payment
in full of the Guaranteed Moneys and the cancellation of the
Limits.
(c) Subject to Clause 6.14, Clause 6.9 continues:
(i) after the revocation, discontinuance or discharge of
this Deed; and
(ii) for the benefit of Former Creditors.
6.12 VARIATIONS
Without limiting any other provision, this Clause 6 covers the
Guaranteed Moneys as varied from time to time including, without
limitation, as a result of any amendment to any Facility Document or
the provision of further Approved Facilities to a Borrower and whether
or not with the consent of or notice to the Guarantors.
6.13 JUDGMENT
A judgment obtained against a Borrower or a Guarantor will be
conclusive against each Guarantor.
6.14 RELEASE OF GUARANTORS AND BORROWERS
(a) The Trustee shall at the request and cost of Foster's Brewing
Group release and discharge Foster's Brewing Group from all
obligations and liabilities under and in respect of
Transaction Documents (including the guarantee and indemnities
contained in this Clause 6) if all Participating Creditors
have given their prior consent.
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(b) (i) Subject to (ii) and (iii) below, the Trustee shall,
at the request and cost of Foster's Brewing Group,
release and discharge any Guarantor (other than
Foster's Brewing Group) from all obligations and
liabilities under or in respect of the Transaction
Documents in its capacity as Guarantor (but not in
its capacity (if any) as a Borrower) (including the
guarantee and indemnities in this Clause 6) if:
(A) the Majority Creditors have given their
prior consent;
(B) all of the issued shares in the capital of
the Guarantor or all of the Guarantor's
assets are sold to another person (other
than a member of the Group) for adequate and
commercial consideration and such
consideration is received by another
Guarantor;
(C) all of the Guarantor's assets are
transferred or distributed (whether in the
course of a members' voluntary winding up or
otherwise) to one or more Guarantors;
(D) such security as the Trustee reasonably may
require on such terms as the Trustee may
determine (acting on the instructions of the
Majority Creditors) is provided in respect
of any possible future liability of that
Guarantor under any of the Relevant
Documents including without limitation any
liability in relation to contingent
Financial Indebtedness;
(E) the rating allocated to the long term
unsecured unsubordinated debt of Foster's
Brewing Group by each Ratings Agency which
has so allocated such a rating is, for the
duration of two consecutive reporting
periods, the same as or above the Cut-Off
Rating of that Ratings Agency and, for the
duration of the same period, the Financial
Undertakings in Clause 4.2 are complied
with; or
(F) Foster's Brewing Group has complied with the
terms of Clause 10.1(b) at the time of the
release where it is the case that Foster's
Brewing Group is no longer rated by a
Ratings Agency.
(ii) Clause 6.9 continues to bind a Guarantor released or
discharged pursuant to (A), (C), (D), (E) or (F)
above, unless the Trustee acting on the instructions
of the Majority Creditors otherwise agrees.
(iii) No Guarantor which is a Treasury Subsidiary may be
released or discharged as a Guarantor other than
under (i)(A) above.
(c) The Trustee shall, at the request and cost of Foster's Brewing
Group, release and discharge any Borrower (other than Foster's
Brewing Group) from all its obligations and liabilities under
or in respect of
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the Transaction Documents in its capacity as a Borrower (but
not in its capacity (if any) as a Guarantor) if:
(i) all Guaranteed Moneys (if any) owing by the Borrower
have been irrevocably paid and discharged in full; or
(ii) another member (ASSUMING MEMBER) of the Group has
assumed that Borrower's obligations to the Creditors
(the TRANSFERRED CREDITORS) to which the Borrower
owes any Guaranteed Moneys and the Assuming Member
becomes a party to this Deed by executing a Borrower
Accession Deed (if it is not already party to this
Deed) and the Transferred Creditors have given their
consent to the Borrower being released and
discharged.
(d) No release or discharge shall be given or executed, and no
person shall cease to be a Borrower or a Guarantor, under
Clause 6.14(a), (b) or (c) if the Trustee has actual knowledge
(without being under any obligation to make any enquiry
whatsoever) that any Guaranteed Moneys have fallen due for
payment (in the case of a release or discharge of a Guarantor)
or that an Event of Default or Potential Event of Default is
subsisting.
(e) Notwithstanding any other provision of a Relevant Document,
any Creditor may agree to discharge or release a Guarantor
from its obligations under the Transaction Documents to the
extent that they relate to the Guaranteed Moneys owing to it.
(f) Any Borrower or Guarantor which has been released from its
obligations and liabilities under and in respect of a
Transaction Document pursuant to (a), (b) or (c) above will,
effective immediately upon such release, cease to be:
(i) a Borrower or Guarantor (as applicable) for the
purposes of that Transaction Document unless, in the
case of a Borrower, it has any Approved Facilities;
and
(ii) a party to that Transaction Document if, after such
release, it would be neither a Borrower, to which has
been extended Approved Facilities under which
financial accommodation of an aggregate amount
of A$20,000,000 (or its equivalent) or more may be
made available, nor a Guarantor.
The foregoing does not prevent that Borrower or Guarantor
subsequently becoming a Borrower or Guarantor for the purposes
of, and a party to, that Transaction Document.
7. ACCESSION OF CREDITORS
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7.1 ACCESSION
(a) Subject to this Deed, any Eligible Person (including an
Eligible Person referred to in Clause 7.2) (the NEW CREDITOR)
may become a
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Creditor for the purposes of this Deed and the other
Transaction Documents by entering into a deed (a CREDITOR
ACCESSION DEED) substantially in the form of Annexure A.
(b) The Trustee, the Borrowers, the Guarantors and the Creditors
irrevocably agree that, with effect on and from the date of
any Creditor Accession Deed being executed by a New Creditor
and Foster's Brewing Group:
(i) the New Creditor shall become a party to this Deed as
a Creditor;
(ii) any reference in this Deed or any other Transaction
Document to a CREDITOR shall include the New
Creditor;
(iii) each Borrower, each Guarantor, each Creditor and the
Trustee shall be bound to the New Creditor as a
Creditor to perform its obligations under this Deed
and the other Transaction Documents; and
(iv) the New Creditor shall be bound as a Creditor to the
Borrowers, the Guarantors, the Trustee and the other
Creditors to perform its obligations under this Deed.
(c) Foster's Brewing Group is irrevocably authorised by each of
the Trustee, the Borrowers and the Guarantors to execute on
its behalf any Creditor Accession Deed.
(d) Without limitation to any other binding method of execution,
Foster's Brewing Group may execute a Creditor Accession Deed
through any attorney or sub-attorney appointed pursuant to the
Power of Attorney.
(e) Foster's Brewing Group shall give the Trustee a copy of the
Creditor Accession Deed promptly after it is executed.
7.2 ASSIGNMENTS AND TRANSFERS
(a) If a Creditor notifies Foster's Brewing Group that an Eligible
Person which is not a Creditor is to assume or acquire, or has
assumed or acquired, the obligations of the Creditor to
provide all or part of its Limit and/or the rights of the
Creditor to receive payment of all or part of its Principal
Amount under an Approved Facility provided by that Creditor,
Foster's Brewing Group shall execute and deliver a Creditor
Accession Deed with the Eligible Person.
(b) Foster's Brewing Group shall do so within five Business Days
of its receipt of the notice.
(c) Foster's Brewing Group is not required to do so if the
assumption or acquisition is not permitted or is prohibited
under the applicable Facility Document.
(d) Foster's Brewing Group shall reimburse the Eligible Person for
its reasonable costs and expenses incurred in connection with
the execution of the Creditor Accession Deed.
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(e) At the same time as the Creditor notifies Foster's Brewing
Group under paragraph (a), that Creditor shall send a copy of
the notice to the Trustee.
8. APPROVED FACILITIES
--------------------------------------------------------------------------------
(a) Subject to this Deed, any Facility provided or to be provided
by any Creditor (alone or with another person) may become an
Approved Facility in relation to that Creditor for the
purposes of the Transaction Documents with the approval of
Foster's Brewing Group. The approval of any other party is not
required.
(b) If:
(i) a Creditor (the TRANSFEREE) assumes the obligations
to provide all or part of the Limit and/or acquires
all or part of the rights to receive payment of all
or part of the Principal Amount of another Creditor
(the TRANSFEROR) under a Facility which is an
Approved Facility in relation to the Transferor;
(ii) the assumption or acquisition is permitted or, as the
case may be, does not breach any prohibition under
the applicable Facility Document; and
(iii) copies of the relevant substitution, transfer or
novation agreement or certificate or notice of
assignment have been given to the Trustee,
then, Foster's Brewing Group shall:
(iv) be deemed to have given its approval to that Facility
being an Approved Facility in relation to the
Transferee without the need for any document to be
signed or act to be done by Foster's Brewing Group;
and
(v) upon request of the Transferee and if it is satisfied
as to the matters referred to in (i) and (iii) above,
give the Transferee a certificate mentioned in
paragraph (c) in relation to that Facility.
(c) An Approved Facility Certificate in relation to a Facility:
(i) purportedly signed by an Authorised Officer of
Foster's Brewing Group; and
(ii) given to the relevant Creditor, is conclusive
evidence that the Facility is an Approved Facility in
relation to that Creditor.
(d) Without limiting Clause 11.1, Foster's Brewing Group's
approval under paragraph (a) or (b) cannot be revoked by any
person other than the relevant Creditor.
(e) Without limiting Clause 11.1, a Creditor which is party to an
Approved Facility may by notice to Foster's Brewing Group
revoke
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the approval. Upon giving that notice, that Facility will
cease to be an Approved Facility in relation to that Creditor
only.
(f) Neither the revocation nor the notice has any effect on the
Facility remaining or becoming an Approved Facility in
relation to any other Creditor.
(g) Subject to paragraph (e) and Clause 11, a Facility shall
continue to be an Approved Facility in relation to a Creditor
regardless of:
(i) any amendment or extension of the Facility; or
(ii) any variation to the Limit applicable to it,
and a new or replacement Approved Facility Certificate need
not be issued in respect of the Approved Facility. Both a
Creditor and Foster's Brewing Group may agree to vary any
existing Approved Facility Certificate in respect of any
Approved Facility of that Creditor.
(h) The party giving a notice under this Clause 8 shall give the
Trustee a copy of the notice at the same time that it is given
to the relevant Creditor or Foster's Brewing Group (as the
case may be). A copy of the variations to an Approved Facility
Certificate referred to in (g) above shall be given to the
Trustee by Foster's Brewing Group within 2 Business Days of
the date on which the variation takes effect.
(i) Notwithstanding any other provision of this Deed, no
Transactional Facilities (other than Treasury Transactions) in
relation to a Creditor may become Approved Facilities under
paragraphs (a) or (b) unless the aggregate amount of
accommodation which may be provided under those Transactional
Facilities (other than Treasury Transactions) exceeds
A$5,000,000 (or its equivalent).
(j) Subject to paragraphs (e) and (i) and Clause 11.1, a
Transactional Facility which has become an Approved Facility
in relation to that Creditor shall continue to be an Approved
Facility in relation to that Creditor in spite of any
subsequent reduction in the aggregate amount of Transactional
Facilities provided by that Creditor to below A$5,000,000 (or
its equivalent).
9. REGISTER AND PROVISION OF INFORMATION
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9.1 ESTABLISHMENT OF REGISTER
With effect on and from the date of this Deed, the Trustee shall keep a
register of the Creditors (the REGISTER) and shall enter into the
Register:
(a) their names and addresses;
(b) their Approved Facilities and their Limits (other than in
respect of Treasury Transactions) under those Approved
Facilities;
(c) those Approved Facilities which are Transactional Facilities
or Syndicated Facilities in relation to them;
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(d) a brief description of the Approved Facilities if they are
Transactional Facilities or, in the case of any other type of
Approved Facility, a brief description of the Facility
Documents for those Approved Facilities;
(e) the names and addresses of their Representatives or Facility
Agents (if any) in respect of their Approved Facilities;
(f) the Borrowers under their Approved Facilities;
(g) the date on which the name of each such Creditor was entered
into the Register;
(h) the date on which the Creditor's Facility ceased to be an
Approved Facility in respect of that Creditor; and
(i) the date on which a person who has ceased to be a Creditor so
ceased to be such a Creditor.
9.2 CHANGE IN DETAILS
(a) Each Creditor shall promptly provide the Trustee with full
particulars of any changes (other than changes to its Limits)
to the matters described in Clause 9.1 in respect of it unless
the changes are contained in a notice to be given by Foster's
Brewing Group under Clause 8.
(b) The Trustee shall:
(i) enter in the Register particulars of any changes to
the matters described in Clause 9.1 effected in
accordance with the Transaction Documents from time
to time; and
(ii) confirm to the relevant Creditor and Foster's Brewing
Group that it has done so.
9.3 LOCATION OF REGISTER
(a) The Register will be maintained at such offices of the Trustee
within Australia as the Trustee and Foster's Brewing Group may
agree and as notified to the Creditors.
(b) The Trustee shall, at Foster's Brewing Group's request and
with the prior consent of the Majority Creditors, transfer the
Register to another jurisdiction.
9.4 INSPECTION OF REGISTER
The Trustee shall ensure that the Register is available for inspection,
at the place where it is kept, during business hours by a Creditor or a
Borrower or Guarantor upon it giving one Business Day's prior notice to
the Trustee.
9.5 CONTENTS CONCLUSIVE
The Register's contents are conclusive.
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9.6 NO RECOGNITION OF TRUSTS, ETC.
No notice (whether actual, implied or constructive) of any trust,
equitable interest or Security Interest will be entered into the
Register.
9.7 PROVISION OF EXTRACTS
(a) Whenever the details in relation to a Creditor, or change in
those details, are entered into the Register under this Clause
9, the Trustee shall, if requested, give that Creditor an
extract of the entry in the Register in relation to that
Creditor showing those details or change.
(b) The Trustee shall, if requested, give Foster's Brewing Group
an extract of all or any entries in the Register.
(c) If the Register is not located in Melbourne, Australia, and if
requested by a Creditor, the Trustee shall give that Creditor
an extract of all or any entries in the Register.
(d) An extract given by the Trustee under this Clause 9.7 is to be
certified by an Authorised Officer of the Trustee as being a
true and up-to-date copy of the relevant entry.
(e) An extract given by the Trustee under this Clause 9.7
constitutes only an acknowledgment or verification of the
relevant entry made in the Register. Such extract of itself
has no other force or effect.
9.8 NOTIFICATION OF FACILITY DOCUMENTS
(a) Each Creditor shall, when requested by the Trustee, promptly
provide the Trustee with:
(i) copies of each Facility Document to which the
Creditor is party;
(ii) such other ancillary documents and information in
relation to its Facility Documents as the Trustee may
reasonably require.
(b) Each Creditor shall provide the Trustee with copies of all
amendments to any document provided under paragraph (a).
(c) No Creditor is obliged to provide copies of any documents
which have been executed by the Trustee.
(d) All copies of documents provided under paragraph (a) or (b) by
a Creditor must be certified as true, correct and up to date
copies by an Authorised Officer of the Creditor.
9.9 NOTIFICATION OF GUARANTEED MONEYS AND PRINCIPAL AMOUNT
(a) Within 5 Business Days after:
(i) its receipt or recovery of any Guaranteed Moneys
after a declaration has been made by the Trustee
under Clause 5.2 (A) or (B) (otherwise than as a
result of a distribution from the Trustee); or
(ii) a request from the Trustee to do so,
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a Creditor shall provide a certificate specifying:
(iii) the Guaranteed Moneys and Principal Amounts owing to
it;
(iv) the Borrowers which owe those amounts;
(v) the amounts, expiry dates and issuers (other than a
member of the Group) of any Guarantees which secure
those Principal Amounts and, if known, whether those
Guarantees are included in the Principal Amount of
another Creditor;
(vi) the Facility Documents under which those amounts are
owing to it;
(vii) whether those amounts are actually or contingently
owing to it; and
(viii) its Available Limits and the Borrowers to which they
have been extended.
Subject to the above provisions of this paragraph (a), a
Creditor may at any time provide the Trustee with such a
certificate.
(b) Such certificate is to be substantially in the form of
Annexure D.
(c) Each Creditor shall, when requested by the Trustee, promptly
provide the Trustee with such other information in relation to
the Guaranteed Moneys and Principal Amount owing to it and its
Available Limit as the Trustee may reasonably require.
(d) The Trustee shall give a request to each Creditor under
paragraph (a) whenever any moneys are to be distributed by the
Trustee under Clause 13 and whenever it seeks or is required
to act on the instructions of the Majority Creditors or all
Participating Creditors.
(e) If a Creditor fails to give a certificate under paragraph (a)
within 5 Business Days of the Trustee's request, it will be
deemed to have given a certificate under paragraph (a) to the
Trustee stating that its Principal Amount and Available Limit
are nil for the purpose only of obtaining the instructions of
the Majority Creditors or all Participating Creditors.
(f) To the extent permitted by law and subject to any binding
order of any Governmental Agency, the Trustee may in reliance
on the most recent certificate provided (or, as a result of
the operation of paragraph (e), deemed provided) by a Creditor
under paragraph (a):
(i) distribute moneys received under Clauses 5.2(A)(4), 6
and 13; and
(ii) determine the Exposures of the Creditors, the
identity of the Participating Creditors and the
composition of the Majority Creditors.
9.10 PRINCIPAL AMOUNTS SECURED BY GUARANTEES ISSUED BY CREDITORS
(a) Upon request, a Creditor (the ISSUER) which has issued in
favour of another Creditor (the BENEFICIARY) a Guarantee
securing any
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Principal Amount of the Beneficiary (as disclosed in a
certificate given under Clause 9.9(a)), shall notify the
Trustee of the amount of the Guarantee and whether that amount
is included in the Issuer's Principal Amount.
(b) The Trustee may only make the request for the purpose of
determining the Beneficiary's Exposure.
9.11 NOTIFICATION OF EVENT OF DEFAULT
(a) Each Creditor shall immediately notify the Trustee after it
becomes actually aware of the occurrence of an Event of
Default or Potential Event of Default.
(b) Paragraph (a) does not apply to any Event of Default or
Potential Event of Default which has been notified to that
Creditor by the Trustee.
(c) The notice is to set out in reasonable detail the
circumstances constituting or causing that Event of Default or
Potential Event of Default.
(d) Failure by a Creditor to give a notice under this Clause 9.11
does not affect its rights under any Relevant Document.
9.12 CONSENT
(a) Each Borrower and Guarantor irrevocably authorises each
Creditor to provide the Trustee with copies of all documents
and other information referred to in Clauses 9.8, 9.9, 9.10
and 9.11.
(b) Each Creditor irrevocably authorises the Trustee to provide
another Creditor or a member of the Group with extracts of the
Register showing the details recorded in the Register in
respect of that Creditor.
10. NEW GUARANTORS AND BORROWERS
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10.1 GUARANTOR ACCESSION
(a) If, and for so long as, the rating allocated to the long term
unsecured and unsubordinated debt of Foster's Brewing Group by
either Ratings Agency which has so allocated such a rating is
below the Cut-Off Rating of that Ratings Agency or, subject to
(b), either Ratings Agency ceases to rate the long term
unsecured and unsubordinated debt of Foster's Brewing Group,
each undertaking in this Clause 10.1 applies to:
(i) any Major Subsidiary which is a wholly owned
subsidiary of Foster's Brewing Group; and
(ii) any wholly owned subsidiary of Foster's Brewing Group
which becomes a Subsidiary of Foster's Brewing Group
after the date of Foster's Brewing Group's most
recent audited
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consolidated balance sheet and which, in the opinion
of Foster's Brewing Group, would have been a Major
Subsidiary had it been a wholly owned subsidiary of
Foster's Brewing Group at that date,
that is not party to this Deed as a Guarantor (the RELEVANT
SUBSIDIARY).
(b) The undertakings in this Clause 10.1 will not apply to a Major
Subsidiary if the long term unsecured and unsubordinated debt
of Foster's Brewing Group ceases to be rated by either Ratings
Agency and it provides to the Creditors within 30 days after
it was no longer rated:
(i) (and subsequently on each date referred to in Clause
4.1(a)(v)) a certificate referred to in Clause
4.1(a)(v) and that certificate is correct; and
(ii) (and subsequently within 120 days after 30 June in
each financial year) a one year projection based on
management accounts which demonstrates that the
Financial Undertakings will continue to be complied
with.
(c) Each undertaking in this Clause 10.1 applies to each Treasury
Subsidiary:
(i) which has been provided with an Approved Facility;
and
(ii) which has not issued debt instruments or marketable
securities in circumstances where a prospectus,
offering circular, information memorandum or similar
document is required to be lodged or lodged and
registered under any applicable law or is required to
be filed or lodged with any Governmental Agency or
stock exchange,
that is not party to this Deed as a Guarantor (the TREASURY
SUB GUARANTOR).
(d) Foster's Brewing Group will immediately give notice to the
Trustee and each Creditor of the existence of a Relevant
Subsidiary or a Treasury Sub Guarantor.
(e) Foster's Brewing Group shall procure that not later than one
month after the giving of a notice referred to in paragraph
(d) (or such later period as the Trustee (acting on the
instructions of the Majority Creditors) may agree), each
Subsidiary identified in the notice as a Relevant Subsidiary
or a Treasury Sub Guarantor (as applicable) becomes a
Guarantor (a NEW GUARANTOR) for the purposes of this Deed by
entering into a deed (a GUARANTOR ACCESSION DEED)
substantially in the form of Annexure C1.
(f) Upon execution of a Guarantor Accession Deed, the New
Guarantor shall be deemed to be a Guarantor for the purposes
of the Relevant Documents with all the rights and obligations
as if it were a Guarantor named as a party to this Deed, and
to have made the
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representations and warranties in Clause 3.1 on the date of
such execution.
10.2 BORROWER ACCESSION
(a) Subject to paragraph (c), any Borrower which is not party to
and bound by this Deed as a Borrower may at any time become a
party to and bound by this Deed by entering into a deed (a
BORROWER ACCESSION DEED) substantially in the form of Annexure
C2.
(b) Foster's Brewing Group will immediately give notice to the
Trustee and each Creditor of the existence of any Borrower
(other than a member of the Finance Group) to which has been
extended Approved Facilities under which financial
accommodation of an aggregate amount of A$20,000,000 (or its
equivalent) or more may be made available to that Borrower and
which is not party to and bound by this Deed as a Borrower or
a Guarantor.
(c) Foster's Brewing Group shall procure that not later than one
month after the giving of a notice referred to in paragraph
(b) (or such later period as the Creditor which has provided
the Approved Facility mentioned in paragraph (b) may agree),
the Borrower identified in the notice enters into a Borrower
Accession Deed.
(d) Upon execution of a Borrower Accession Deed by a Borrower,
that Borrower shall be deemed to be party to this Deed and the
other Transaction Documents in the capacity of a Borrower with
all the rights and obligations of a Borrower under this Deed
as if it were named as a party to and had executed this Deed,
and to have made the representations and warranties in Clause
3.1 on the date of such execution.
10.3 PRE-CONDITIONS TO ACCESSION
Foster's Brewing Group shall ensure that before any member of the Group
(the RELEVANT COMPANY) executes a Guarantor Accession Deed or a
Borrower Accession Deed (an ACCESSION DEED), the Trustee shall have
received the following in form and substance satisfactory to the
Trustee.
(a) (VERIFICATION CERTIFICATE): A certificate given by a director
or secretary of the Relevant Company substantially in the form
of Annexure F with the attachments referred to and dated not
earlier than 14 days prior to the date of the Accession Deed
executed by the Relevant Company (as the case may be).
(b) (LEGAL OPINION): Legal opinions in form and substance
satisfactory to the Trustee from lawyers acceptable to the
Trustee in relation to the Relevant Company and the Accession
Deed and the other Transaction Documents expressed to be
binding on the Guarantors or the Borrowers (as the case may
be) and in respect of the laws applicable in the jurisdiction
of incorporation of the Relevant Company and in respect of the
laws of Victoria.
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(c) (FURTHER EVIDENCE): Such further evidence as the Trustee shall
reasonably require that the Transaction Documents to which the
Relevant Company is a party will be valid and binding
obligations enforceable in accordance with their terms.
The failure by Foster's Brewing Group to satisfy the above conditions
in relation to a Relevant Company shall not extend the period referred
to in Clause 10.1(c) or 10.2(c) (as the case may be).
10.4 CONSENT TO ACCESSION
Each of the Guarantors and Borrowers unconditionally and irrevocably
consents to each other Guarantor's and Borrower's entry into this Deed
whether by way of execution of this Deed, a Guarantor Accession Deed or
a Borrower Accession Deed.
11. RELEASE AND DISCHARGE
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11.1 INDIVIDUAL CREDITOR RELEASE
(a) If at any time:
(i) there are no Guaranteed Moneys owing to a Creditor
(including, without limitation, any moneys which are
reasonably foreseeable as falling within the
definition of Guaranteed Moneys in the future owing
to that Creditor); and
(ii) that Creditor's Limits (if any) have been cancelled
or it has no Limits,
in respect of a Facility of that Creditor which is an Approved
Facility then that Creditor (AFFECTED CREDITOR) shall promptly
give the Trustee a confirmation in the form of Annexure B
(which shall be copied to Foster's Brewing Group) upon request
by the Trustee or Foster's Brewing Group (with a copy of the
request sent to the other of the Trustee and Foster's Brewing
Group).
(b) Upon giving that confirmation, the Facility shall cease to be
an Approved Facility for the purposes of the Transaction
Documents. If the Affected Creditor does not have any other
Approved Facilities, then it will also cease to be a Creditor
for the purposes of the Transaction Documents. The Trustee
shall amend the Register to reflect this.
(c) If the Creditor believes that there are or may be any
Guaranteed Moneys (including, without limitation, any moneys
which are reasonably foreseeable as falling within the
definition of Guaranteed Moneys in the future) owing to it or
that it has any Limits in respect of the Facility, the
Creditor may give the Trustee (with a copy to Foster's Brewing
Group) a certificate substantially in the form of Annexure
D.1. If the certificate is given, then the Facility will
continue to be an Approved Facility and the Creditor shall
remain a Creditor.
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(d) If, within 45 days of the request having been given under
paragraph (a) above (the WAIT AND SEE PERIOD), the Creditor
does not give the confirmation referred to in that paragraph
or the certificate referred to in paragraph (c), then:
(i) with effect on and from the last day of the Wait and
See Period, the Facility (SUSPENDED FACILITY) shall
be suspended as an Approved Facility for the purposes
of the Transaction Documents, and if the Creditor has
no other Approved Facilities, the Creditor shall be
suspended as a Creditor for the purposes of the
Transaction Documents; and
(ii) the Trustee shall amend the Register to reflect this
and shall promptly notify the Affected Creditor of
those consequences.
(e) Despite paragraph (d), the Creditor may at any time
subsequently give the Trustee (with a copy to Foster's Brewing
Group) a certificate referred to in paragraph (c).
(f) Upon giving a certificate in accordance with paragraph (e)
certifying the matters referred to in paragraph (c), the
suspension in respect of the Suspended Facility shall
automatically cease and, if applicable, the suspension of the
Creditor shall also cease for the purposes of the Transaction
Documents. The Trustee shall amend the Register to reflect
this. If such a certificate is given, or a certificate under
paragraph (c) is given, the Creditor will upon request make
itself available to discuss with Foster's Brewing Group the
basis for its belief as described in that certificate.
(g) Subject to paragraph (h), any cessation of a suspension under
paragraph (f) shall take effect on and from the last day of
the Wait and See Period.
(h) The cessation of a suspension will not affect the validity or
effectiveness of any action taken or not taken by the
Creditors, the Trustee, the Guarantors or the Borrowers before
the cessation (including any approvals, consents or
determinations made or given by the Participating Creditors or
the Majority Creditors) and the Suspended Creditors shall not
be entitled to the benefit of clause 27.1(f) in relation to
anything received or recovered during the period of the
suspension.
(i) Nothing in the above paragraphs diminishes or affects:
(i) the obligation of a Creditor to give a confirmation
under paragraph (a); or
(ii) the rights of Foster's Brewing Group or any Guarantor
or Borrower against that Creditor if the Creditor
does not comply with that obligation or gives a false
or incorrect certificate under paragraph (c) or (e).
(j) In this Clause 11.1, a reference to a Creditor ceasing to be a
Creditor or being suspended as a Creditor or a Facility
ceasing to be or being suspended as an Approved Facility for
the purposes of the
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Transaction Documents means it so ceasing or being suspended
for all the purposes of the Transaction Documents (including
for the purposes of the definitions of Majority Creditors and
Participating Creditor in Clause 1.1 and for the purpose of
receiving any information or documents from the Guarantors or
Borrowers under the Transaction Documents and receiving any
distributions from the Trustee under the Transaction
Documents), other than for the purpose of and subject to this
Clause 11.1.
(k) Nothing in this Clause 11.1 has any effect on any Cancelled
Facility or Suspended Facility provided by an Affected
Creditor remaining or becoming an Approved Facility in
relation to any other Creditor.
11.2 RELEASE BY ALL CREDITORS
(a) If there are no Approved Facilities (other than Suspended
Facilities (within the meaning given in Clause 11.1(d))
existing on or after the first anniversary of the date of this
Deed, then, if Foster's Brewing Group so notifies the Trustee,
the trust established by this Deed shall end.
(b) Subject to paragraph (c), the trust shall end on the day
specified in Foster's Brewing Group's notice.
(c) The day specified in Foster's Brewing Group's notice must not
be before the end of a period of one month after the day on
which the last Facility ceased to be, or was suspended as, an
Approved Facility under Clauses 8(e) or 11.1.
(d) Nothing in this Clause nor the termination of the Trust
prejudices the rights of the Former Creditors under this Deed.
12. CREDITORS' AGREEMENT
--------------------------------------------------------------------------------
(a) Subject to Clause 1.9 and paragraph (b), each Creditor agrees
with each other Creditor, the Borrowers and the Guarantors
that:
(i) it may not enforce its rights to demand payment or
repayment or to recover its Principal Amount before
the stated payment or repayment date for that
Principal Amount in the relevant Facility Document
other than in accordance with this Deed;
(ii) to the extent that the provisions of any Facility
Document with that Creditor are inconsistent or
overlap with the provisions of Clauses 3, 4, 5 or 6
of this Deed, this Deed's provisions prevail.
(b) The prohibitions in paragraph (a) do not apply to any Facility
or any other agreement or document which applies to any
Facility:
(i) under which the Creditor is not committed to provide
financial accommodation; or
(ii) which is a Treasury Transaction; or
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(iii) which is an issue of debt instruments or marketable
securities in circumstances where a prospectus,
offering circular, information memorandum or similar
document is required to be lodged or lodged and
registered under any applicable law or is required to
be filed or lodged with any Governmental Agency or
stock exchange; or
(iv) which is the private placement of debt instruments
other than the placement of the whole of an issue of
debt instruments to a bank or financial institution
and its subsidiaries for the purpose of avoiding the
intention of the provisions of paragraph (a)(i).
13. RANKING AND DISTRIBUTION
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13.1 RANKING
(a) The Creditors shall in terms of benefit under and entitlement
to the Trust Fund (including the Recovered Moneys) rank
equally save where this Deed otherwise provides.
(b) Each Creditor to which any Guaranteed Moneys are owing by
Foster's Brewing Group in its capacity as a Borrower is not
entitled to receive or share in any Recovered Moneys received
or recovered from the other Guarantors, or derived from moneys
received or recovered from any disposal of or other dealing
with their assets (OTHER GUARANTOR RECOVERED MONEYS) in
reduction or discharge of those Guaranteed Moneys. The Trustee
shall make such adjustments to any moneys to be distributed
under this Clause 13 to give effect to this. The foregoing
provisions of this paragraph (b) do not apply if and for so
long as Clause 6.1(b) does not apply.
13.2 RECOVERED MONEYS
(a) Unless the Trustee is prevented by law or any binding order of
a Governmental Agency from doing so and, except as otherwise
expressly provided in a Transaction Document, the Trustee
shall, subject to paragraph (b), distribute the Recovered
Moneys in accordance with this Clause 13 no later than 90 days
after the Trustee's receipt of such Recovered Moneys.
(b) Recovered Moneys shall not be distributed if and for so long
as it is deposited in any suspense account in accordance with
this Deed or otherwise in accordance with the Transaction
Documents.
(c) Any suspense account into which any Recovered Moneys are
placed is to be an interest bearing account selected by the
Trustee.
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13.3 ORDER
Notwithstanding any rule of law or equity or anything contained in any
agreement to the contrary, all Recovered Moneys shall be applied in the
following order:
(a) First: towards payment of the unpaid fees due to the Trustee
and all reasonable costs, charges and expenses of the Trustee.
(b) Second: towards payment of such other outgoings as the Trustee
reasonably incurs in connection with the exercise or attempted
exercise of its powers, discretions, rights or duties under
the Transaction Documents or the enforcement of those
documents for the purpose of recovering the Guaranteed Moneys.
(c) Third: towards payment to the Creditors entitled to share in
those Recovered Moneys ratably in reduction of their
Guaranteed Moneys (as disclosed to the Trustee under Clause
9.9).
The Trustee shall, upon reasonable request, provide details to a
Creditor or Foster's Brewing Group of the amounts referred to in
paragraphs (a) and (b).
13.4 AMOUNTS CONTINGENTLY DUE
(a) If, at the time of a distribution, any Guaranteed Moneys are
contingently owing to a Creditor or are owing to a Creditor
under an unmatured Instrument, the Trustee shall, after paying
to that Creditor its ratable share of the Recovered Moneys in
reduction of the Guaranteed Moneys actually owing to that
Creditor, retain the surplus (if any) of that Creditor's
ratable share of the Recovered Moneys.
(b) The Trustee shall:
(i) in relation to Guaranteed Moneys which are
contingently owing, place the retained amount on
short-term interest bearing deposit; and
(ii) in relation to Guaranteed Moneys owing under an
unmatured Instrument, invest the moneys in
investments permitted under Clause 19 or in interest
bearing deposits which, in either case, mature about
the same day as the Instrument.
(c) That Creditor shall notify the Trustee when the relevant
Guaranteed Moneys have become actually due or cease to be
contingently owing.
(d) Promptly after receipt of that notice or on the maturity date
of the relevant Instrument (as the case may be), the Trustee
shall:
(i) pay to that Creditor from the amount retained (and
the interest on that amount) the relevant Guaranteed
Moneys which have actually become due to that
Creditor; and
(ii) if no Guaranteed Moneys are contingently owing to
that Creditor or will become owing to it under any
Instrument, apply the balance of the amount retained
(together with interest earned on that amount) in
accordance with Clause 13.3.
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13.5 DISPUTES
(a) If, at the time of a distribution, the Trustee is satisfied
that there is a bona fide dispute with regard to the payment
of any Guaranteed Moneys (the DISPUTED MONEYS) owing to a
Creditor, the Trustee shall, after paying to that Creditor the
excess of its ratable share of the Recovered Moneys over the
amount of the Disputed Moneys, retain the rest of that
Creditor's ratable share of the Recovered Moneys.
(b) The Trustee shall place the retained amount on short-term
interest bearing deposit.
(c) If the Trustee is satisfied that the dispute has been decided,
resolved or settled, the Trustee shall pay to that Creditor
from the amount retained (and the interest on that amount) the
amount (if any) of its Disputed Moneys which it is entitled to
receive under such decision, resolution or settlement.
(d) The balance (together with any accrued interest) (if any)
shall be applied by the Trustee in accordance with Clause
13.3.
13.6 CONVERSION OF CURRENCIES
(a) For the purposes of determining the ratable share of the
Creditors to the Recovered Moneys to be distributed on any day
under Clause 13.3, all Guaranteed Moneys and Recovered Moneys
which are not denominated in Australian dollars shall be
notionally converted by the Trustee into their A$ Equivalents
as at that day.
(b) The Trustee shall pay for the account of that Creditor its
ratable share of the Recovered Moneys in the currency of the
relevant Guaranteed Moneys or such other currency as the
relevant Creditor requests.
(c) If the Trustee determines that it is unlawful or impracticable
to make a payment in that currency to that Creditor, the
Trustee shall notify the Creditor and they shall consult in
good faith with each other with a view to agreeing upon
another currency in which to make the payment. If no agreement
is made within 5 Business Days of the notice, the Trustee
shall choose the currency of the payment.
(d) For the purposes of making an application or payment under
this Clause 13, the Trustee may buy one currency with another,
whether or not through an intermediate currency, whether spot
or forward, in the manner and at the times it thinks fit.
13.7 PAYMENT
All payments to be made by the Trustee to or for the account of a
Creditor in reduction of the Guaranteed Moneys owing to it in relation
to:
(a) a Syndicated Facility, shall be made to the relevant Facility
Agent for distribution in accordance with the relevant
Facility Document; or
(b) any other Facility, to that Creditor or at its direction.
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13.8 SPECIAL APPROPRIATION
(a) Subject to paragraph (d), the moneys received or held by the
Trustee for distribution to a Creditor under Clause 13.3 shall
be deemed not to be appropriated in reduction of its
Guaranteed Moneys (the SECURED MONEYS) which are secured by
any Separate Security.
(b) If any moneys (the GENERAL MONEYS) have been distributed to a
Creditor under Clause 13.3, and any moneys (the ENFORCEMENT
PROCEEDS) are available for distribution to it under any
Separate Security, that Creditor shall repay an amount of the
General Moneys to the Trustee equal to the lesser of the
Enforcement Proceeds and its Secured Moneys.
(c) Subject to the subsequent application of this Clause 13.8, the
Trustee shall distribute that amount to all Creditors in
accordance with Clause 13.3.
(d) As between that Creditor on the one hand and each Borrower and
Guarantor on the other, those Enforcement Proceeds shall be
deemed to have been appropriated in reduction of its Secured
Moneys.
(e) Once the maximum amount recoverable under the Creditor's
Separate Securities has been recovered and that Creditor has
received its share of that amount, any moneys received by that
Creditor under Clause 13.3 may then be appropriated in
reduction of its remaining Secured Moneys.
(f) If there are any Other Guarantor Recovered Moneys (as defined
in Clause 13.1(b)) available for distribution under Clause
13.3, those moneys will be taken to have been appropriated in
reduction of the Guaranteed Moneys (other than the Guaranteed
Moneys owing by Foster's Brewing Group in its capacity as a
Borrower) before any moneys recovered from Foster's Brewing
Group, or derived from moneys received or recovered from any
disposal of or other dealing with the assets of Foster's
Brewing Group are appropriated in reduction of those
Guaranteed Moneys. The foregoing provisions of this paragraph
(f) do not apply if and for so long as Clause 6.1(b) does not
apply.
13.9 NON-GUARANTOR RECOVERIES
(a) For the purposes of this Deed, Recovered Moneys shall not
include any moneys (EXCLUDED MONEYS):
(i) received or recovered by the Trustee from a Borrower
which is not a Guarantor (the NON-GUARANTOR) after
the Trustee gives a notice under Clause 5.2;
(ii) received or recovered by the Trustee from any
disposal of, or other dealing with, any asset of the
Non-Guarantor;
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(iii) paid by a Creditor to the Trustee under Clause 5.10
or 27 which comprise any recovery or receipt by that
Creditor of any moneys from the Non-Guarantor;
(iv) any moneys arising from the holding, liquidation,
realisation or disposal of an investment made under
Clause 19 by initially using any moneys referred to
in any other provision of this paragraph (a); and
(v) comprising interest on the moneys referred to in the
previous provisions of this paragraph (a) and
interest on such interest.
(b) The Creditors (the NON-GUARANTOR CREDITORS) to which the
Non-Guarantor owes any Guaranteed Moneys (the OTHER MONEYS)
shall in terms of entitlement to the Excluded Moneys rank
equally save where this Deed otherwise provides. Any other
Creditors shall not be entitled to receive any of the Excluded
Moneys.
(c) Clauses 13.2 to 13.8 (inclusive) apply to the Excluded Moneys
and Clause 27 applies to any Other Moneys recovered or
received by a Non-Guarantor Creditor from the Non-Guarantor,
but on the basis that:
(i) all references to Recovered Moneys in those Clauses
are to the Excluded Moneys;
(ii) all references to Creditor and Creditors in those
Clauses are to any such Non-Guarantor Creditor and
those Non-Guarantor Creditors respectively; and
(iii) all references to Guaranteed Moneys are to the Other
Moneys.
(d) The Trustee shall not mix the Recovered Moneys with the
Excluded Moneys. The Recovered Moneys and Excluded Moneys
shall be kept by the Trustee in separate accounts and invested
in separate investments under Clause 19.
(e) In applying any moneys under this Clause 13 towards payment of
the amounts referred to in Clause 13.3(a), the Trustee shall
apply the Recovered Moneys and the Excluded Moneys ratably in
reduction of those amounts.
(f) This Clause 13.9 applies notwithstanding any other provision
of this Deed.
14. PAYMENTS GENERALLY
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14.1 MANNER
Each of the Borrowers and the Guarantors shall make all payments due by
it to an Indemnified Party under any Transaction Document:
(a) in the currency in which the payment is required to be made;
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(b) by bank cheque delivered to the Indemnified Party at its
address for service of notices or by transfer of immediately
available funds to the account specified by the Indemnified
Party from time to time, in either case by 11 am (local time)
on the due date; and
(c) without set-off or counterclaim and without any deduction,
except, without prejudice to any provision of any Approved
Facility dealing with Taxation or to Clause 15.1, any
compulsory deduction with respect to Taxation.
If any payment is due on a day which is not a Business Day, the due
date will be the next Business Day.
14.2 APPROPRIATION WHERE INSUFFICIENT MONEYS AVAILABLE
Subject to Clause 13, amounts received by an Indemnified Party will be
appropriated as between principal, interest and other amounts as the
Indemnified Party determines. This appropriation will override any
appropriation made by a Borrower or a Guarantor.
15. TAXATION
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15.1 ADDITIONAL PAYMENTS
Whenever a Borrower or a Guarantor is obliged to make a deduction in
respect of Tax from any payment to an Indemnified Party under any
Transaction Document:
(a) it shall 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, it shall deliver to the Indemnified Party official
receipts or other documentation acceptable to the Indemnified
Party evidencing payment of that amount; and
(c) unless the Tax is an Excluded Tax, it shall pay the
Indemnified Party on the due date of the payment any
additional amounts necessary (as determined by the Indemnified
Party) to ensure that the Indemnified Party receives when due
a net amount (after payment of any Taxes in respect of those
additional amounts) in the relevant currency equal to the full
amount which it would have received had a deduction not been
made, and it shall indemnify the Indemnified Party on demand
against the Tax and any amounts recoverable from the
Indemnified Party in respect of the Tax.
Each of the Borrowers and the Guarantors waives any statutory right to
recover from any Indemnified Party any amount paid under this Clause
15.
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15.2 SURVIVAL OF OBLIGATIONS
The obligations of each of the Borrowers and the Guarantors under this
Clause 15 survive the repayment of Guaranteed Moneys and the
termination of this Deed.
15.3 REIMBURSEMENT
(a) Whenever:
(i) a Borrower or a Guarantor pays any additional amount
to, for the account of or on behalf of, any
Indemnified Party in respect of amounts payable under
Clause 15.1 (ADDITIONAL TAXES); and
(ii) that Indemnified Party in its absolute discretion
decides that it has received any clearly identifiable
relief for the amount of the Additional Taxes in
computing any income Tax due by it,
the Indemnified Party shall promptly pay to the Borrower or
the Guarantor the amount of any consequent reduction in its
income Tax, but only to the extent that it determines that a
payment to the Borrower or the Guarantor can be made without
prejudice to the retention of the relief.
(b) Nothing in paragraph (a) interferes with the right of each
Indemnified Party to arrange its tax affairs in any manner it
thinks fit. In particular, no Indemnified Party need claim any
relief in respect of the amount of any Additional Taxes in
priority to any other relief available to it or disclose to
the Borrowers or the Guarantors any information regarding its
tax affairs or tax computations.
16. INTEREST ON OVERDUE AMOUNTS
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16.1 ACCRUAL AND PAYMENT
(a) Interest accrues on each unpaid amount which is due and
payable by a Borrower or a Guarantor to an Indemnified Party
(the RELEVANT PARTY) under or in respect of any Transaction
Document (including interest payable under this Clause):
(i) on a daily basis up to the date of actual payment
from (and including) the due date or, in the case of
an amount payable by way of reimbursement or
indemnity, the date of disbursement or loss, if
earlier;
(ii) both before and after judgment (as a separate and
independent obligation); and
(iii) at the rate provided in Clause 16.2.
(b) The relevant Borrower or Guarantor shall pay interest accrued
under this Clause on demand by the Relevant Party and on the
last Business
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Day of each calendar quarter. That interest is payable in the
currency of the unpaid amount on which it accrues.
16.2 RATE
The rate applicable under this Clause is the sum of 3% per annum and
the weighted average (determined by reference to the Limits under such
Approved Facilities) of the margins under the Approved Facilities
provided by the Relevant Party plus:
(a) (i) if the amount is denominated in Australian dollars,
the indicator, reference or base lending rate of the
Relevant Party from time to time; or
(ii) if the amount is denominated in any other currency,
for each successive funding period not exceeding 90
days selected by the Relevant Party the arithmetic
mean of the rates displayed on the Reuters screen
LIBO page (in the case of US dollars or the
equivalent page for other currencies) for the making
of deposits for the funding period in the currency
concerned for value on the first day of the funding
period, that arithmetic mean will be rounded upwards,
if necessary, to the nearest 1/16th of 1%; or
(b) if those rates are not available, the Relevant Party's cost of
funds (as certified by the Relevant Party to the relevant
Borrower or Guarantor) in that currency for a funding period
not exceeding 90 days selected by the Relevant Party. The
Relevant Party's certificate as to its cost of funds is, in
the absence of manifest error, binding and conclusive.
Interest on amounts denominated in Australian dollars, Canadian
dollars, New Zealand dollars or Sterling is calculated on the basis of
a year of 365 days. Interest on amounts denominated in other currencies
is calculated on the basis of a year of 360 days.
16.3 GUARANTEED MONEYS
(a) Clauses 16.1 and 16.2 do not apply to any unpaid Guaranteed
Moneys outstanding under an Approved Facility and any unpaid
moneys due and payable by a Guarantor under Clause 6 in
respect of any such unpaid Guaranteed Moneys.
(b) Interest and fees shall accrue on any unpaid Guaranteed Moneys
outstanding under an Approved Facility in accordance with the
provisions of that Approved Facility dealing with interest or
fees on overdue amounts.
(c) Such interest and fees are included in the Guaranteed Moneys
and secured by the guarantee and indemnities in Clause 6.
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17. CURRENCY INDEMNITY
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17.1 GENERAL
On demand, whichever of the Borrowers and the Guarantors owes the
amount referred to in paragraph (a) shall, to the fullest extent that
it may effectively do so, as a separate obligation and notwithstanding
any such judgment, indemnify each Indemnified Party against any
deficiency which arises whenever, for any reason (including, without
limitation, as a result of a judgment or order):
(a) that Indemnified Party receives or recovers an amount owing by
that Borrower or Guarantor (as the case may be) in one
currency (the PAYMENT CURRENCY) in respect of an amount
denominated under a Transaction Document in another currency
(the DUE CURRENCY); and
(b) the amount actually received or recovered by that Indemnified
Party in accordance with its normal practice when it converts
the Payment Currency into the Due Currency is less than the
relevant amount of the Due Currency.
17.2 LIQUIDATION
In the event of the Liquidation of a Borrower or a Guarantor, the
Borrower or, as appropriate, the Guarantor shall, to the fullest extent
it may effectively do so, indemnify each Indemnified Party on demand
against any deficiency resulting from any variation as between:
(a) the exchange rate actually applied for the purposes of the
Liquidation in converting into another currency an amount
expressed in one currency due or contingently owing by it
under a Transaction Document or under a judgment or order
relating to a Transaction Document; and
(b) the exchange rate at which that Indemnified Party in
accordance with its normal practice would be able to purchase
the last-mentioned currency with the first-mentioned currency
as at the final date or dates for the filing of proof or other
claim in the Liquidation or the nearest available prior date
including any premiums and costs of exchange payable in
connection with the purchase.
18. CONTROL ACCOUNTS
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The Trustee shall maintain accounts showing the total of all moneys
paid to it by a Borrower, Guarantor or a Creditor under the Transaction
Documents or any investments made under Clause 19. Those accounts
constitute sufficient evidence, unless the contrary is proved, of the
moneys so paid.
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19. POWERS OF INVESTMENT
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Any moneys coming into the hands of the Trustee after the occurrence of
an Event of Default and the delivery by it of a notice to Foster's
Brewing Group under Clause 5.2 shall, as soon as practicable and
pending their application under the Transaction Documents, be invested
in the name of or under the control of the Trustee in any of the
following:
(a) obligations issued or incurred by any Governmental Agency,
bank or other corporation which have, or are supported by an
unconditional guarantee from, a Governmental Agency, bank or
other corporation similar obligations of which have a rating
with Standard & Poor's Corporation Inc., or any of its
Subsidiaries, of AA or better or with Moody's Investor
Services Inc., or any of its Subsidiaries, of AA or better;
(b) commercial paper or corporate promissory notes having a rating
of A-1P-1 or better with Standard & Poor's Corporation Inc. or
Moody's Investor Services, Inc. or their respective
Subsidiaries; or
(c) such other investments as the Majority Creditors may approve.
The Trustee may at any time vary or realise such investments.
20. FURTHER ASSURANCES
--------------------------------------------------------------------------------
Whenever reasonably requested by the Trustee, each of the Creditors and
each of the Borrowers and Guarantors shall do or cause to be done
anything reasonably requested by the Trustee:
(a) for aiding the exercise of the powers and discretions, or the
performance of the obligations, of the Trustee under the
Transaction Documents or in respect of the Trust Fund;
(b) to effect any termination, discharge or release under Clause
6.14 or 11;
(c) to effect any transfer or assurance under Clause 25.15,
including, without limitation:
(d) the execution of any document; and
(e) the giving of notices, orders and directions.
21. WAIVERS, REMEDIES CUMULATIVE
--------------------------------------------------------------------------------
21.1 WAIVERS
No failure to exercise and no delay in exercising any right, power or
remedy under any Transaction Document 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.
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21.2 RIGHTS CUMULATIVE
The rights, powers and remedies provided to the Indemnified Parties in
a Transaction Document are cumulative and not exclusive of any rights,
powers or remedies provided by law.
22. SEVERABILITY OF PROVISIONS
--------------------------------------------------------------------------------
Any provision of a Transaction Document 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 that Transaction
Document or affect such provision in any other jurisdiction.
23. SURVIVAL OF REPRESENTATIONS AND INDEMNITIES
--------------------------------------------------------------------------------
23.1 SURVIVAL OF REPRESENTATIONS
All representations and warranties in the Transaction Documents shall
survive the execution and delivery of the Transaction Documents and
final payment of the Guaranteed Moneys.
23.2 CONTINUING INDEMNITIES
Each indemnity in the Transaction Documents shall:
(a) be a continuing obligation;
(b) constitute a separate and independent obligation of the party
giving the indemnity from its other obligations under the
Transaction Documents; and
(c) subject to Clause 6.14, survive the termination of this Deed.
24. MORATORIUM LEGISLATION
--------------------------------------------------------------------------------
To the full extent permitted by law all legislation which at any time
directly or indirectly:
(a) lessens or otherwise varies or affects in favour of the
Borrowers or the Guarantors any obligation under any
Transaction Documents; or
(b) delays or otherwise prevents or prejudicially affects the
exercise by any Indemnified Party of any right, power or
remedy conferred by any Transaction Document,
is negated and excluded from the Transaction Documents.
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25. TRUSTEE PROVISIONS
25.1 AUTHORITY
--------------------------------------------------------------------------------
(a) Subject to Clause 25.15, each Creditor irrevocably appoints
and authorises the Trustee to enter into the Transaction
Documents as its agent and trustee and to act as such under
the Transaction Documents with such powers as are expressly
delegated to the Trustee by the Transaction Documents together
with such other powers as are reasonably incidental to such
powers.
(b) The Trustee shall not be required to take any action for or on
behalf of any Creditor and shall have no duties or
responsibilities except as expressly set forth in the
Transaction Documents.
25.2 INSTRUCTIONS: EXTENT OF DISCRETION
(a) (i) Where a Transaction Document expressly stipulates
that the Trustee is to exercise any of its rights,
powers and discretions (each a POWER) on the
instructions of a certain Creditor or certain
Creditors, or if the Trustee has been requested by
Foster's Brewing Group or any Creditor to exercise
any such Power, the Trustee shall seek the
instructions of that Creditor or those Creditors (as
the case may be).
(ii) The Trustee shall act in accordance with those
instructions.
(iii) The Trustee may not exercise the Power without those
instructions.
(b) Where a Transaction Document does not expressly stipulate that
the Trustee is to exercise any of its Powers on the
instructions of any Creditors:
(i) the Trustee may (but is not obliged to) seek the
instructions of the relevant Creditor on whose behalf
the Power is to be exercised or, in any other case,
the Majority Creditors;
(ii) if those instructions are given within 5 Business
Days of the Trustee seeking them or, if later, before
the Trustee exercises the Power, the Trustee shall
act in accordance with those instructions; and
(iii) if:
(A) those instructions are not given within that
period of 5 Business Days, the Trustee may
(but is not obliged to); or
(B) no instructions are sought, the Trustee
shall,
as it thinks fit, exercise the Power in the best
interests of the Creditor on whose behalf it is to
be exercised or, in any other case, all the
Creditors.
(c) Without limitation to any other means:
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(i) the Trustee may seek the instructions of the relevant
Creditors by convening a Meeting; and
(ii) instructions may be given to the Trustee by the
relevant Creditors at a Meeting.
(d) Any action taken by the Trustee in accordance with the
Transaction Documents shall be binding upon all Creditors.
(e) Except where a Transaction Document otherwise expressly
provides, the Trustee shall not be obliged to consult with any
Creditors before giving any consent, approval or agreement or
making any determination under the Transaction Documents.
(f) The Powers conferred on the Trustee under the Transaction
Documents are exercisable by the Trustee solely. Except where
a Transaction Document otherwise expressly provides, no
Creditor may exercise any of them.
25.3 NO OBLIGATION TO INVESTIGATE AUTHORITY
(a) Subject to paragraph (c), no Borrower or Guarantor shall be
concerned or entitled to enquire as to whether any
instructions have been given to the Trustee by any one or more
Creditors or as to the terms of those instructions.
(b) As between the Borrowers and the Guarantors on the one hand,
and the Trustee and Creditors on the other, all action taken
by the Trustee under the Transaction Documents shall be deemed
to be authorised.
(c) Where the Trustee has sought the instructions of any Creditor
in relation to any consent, approval, agreement or waiver
(each an AGREEMENT) requested by a Borrower or Guarantor under
a Transaction Document, the Trustee shall, upon request,
notify Foster's Brewing Group of the Creditors which:
(i) instructed it to give the Agreement;
(ii) instructed it not to give the Agreement;
(iii) at the time of the request, have failed to give any
instructions.
(d) Each Creditor irrevocably authorises the disclosure to
Foster's Brewing Group by the Trustee of the information under
paragraph (c).
25.4 TRUSTEE CAPACITY
Except as otherwise expressly provided in a Transaction Document, the
Trustee shall not, by reason of any Relevant Document, be deemed to be
a trustee for the benefit of any Borrower, Guarantor or any other
person.
25.5 EXONERATION
Neither the Trustee, nor any of its directors, officers, employees,
agents, attorneys, Related Companies, consultants having general
retainer
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arrangements with it, or its Related Companies or its successors, shall
be responsible to the Creditors for:
(a) any statement, representation or warranty contained in any
loan proposal or information memorandum or in any Relevant
Document or in any document or agreement referred to in or
received under any Relevant Document;
(b) the value, validity, effectiveness, genuineness,
enforceability or sufficiency of any loan proposal or the
information memorandum, any Relevant Document or any such
document or agreement;
(c) any failure by any Borrower or Guarantor or another party to
perform its obligations; or
(d) any action taken or omitted to be taken by it or them under
any Relevant Document except in the case of its or their own
fraud, wilful misconduct or negligence.
25.6 DELEGATION
(a) The Trustee may (whenever and upon such terms it thinks fit):
(i) delegate any of its rights, powers and discretions
(each a POWER) under the Transaction Documents:
(A) to any of its Authorised Officers; or 1
(B) to any other person if and to the extent
that it reasonably believes that such Power
cannot be conveniently exercised by it or
through its Authorised Officers;
(ii) instead of acting personally or through its
employees, employ an agent to do so and to exercise
those Powers;
(iii) for the purpose of ensuring the performance or
exercise of any Powers or obligations conferred or
imposed on the Trustee under the Transaction
Documents complies with the laws of any applicable
jurisdiction, appoint any person as an additional
trustee of all or any of the Trust Fund to exercise
those Powers or to perform those obligations;
(iv) apply to any court of competent jurisdiction for
directions in relation to any question.
(b) The Trustee may (whenever and upon such terms it thinks fit)
terminate such delegation, employment or appointment.
25.7 RELIANCE ON DOCUMENTS AND EXPERTS
The Trustee shall be entitled to rely upon:
(a) any document (including any facsimile transmission, telegram
or telex) given under or in relation to any Relevant Document
and reasonably believed by it to be genuine and correct and to
be given under or in relation to any Relevant Document; and
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(b) advice and statements of lawyers, independent accountants and
other experts selected by the Trustee.
25.8 NOTICE OF TRANSFER
The Trustee may treat each Creditor as the holder of the benefit of its
rights under the Transaction Documents unless and until the Trustee,
shall have received:
(a) a substitution, transfer or novation agreement or certificate
or notice of assignment satisfactory to it; and
(b) where the assignee or transferee is not an existing Creditor,
a duly executed Creditor Accession Deed in accordance with
Clause 7.
25.9 NOTICE OF DEFAULT
(a) The Trustee shall be deemed not to have knowledge of the
occurrence of an Event of Default or Potential Event of
Default unless it has received notice from a Creditor or a
Borrower or Guarantor stating that an Event of Default or
Potential Event of Default has occurred and describing it.
(b) If it receives such a notice or its officers having
responsibility for the transaction become actually aware that
an Event of Default or Potential Event of Default has
occurred, it shall notify each of the Creditors, subject to
Clause 25.14, providing brief details of such Event of Default
or Potential Event of Default.
25.10 TRUSTEE'S OTHER CAPACITIES
(a) The Trustee may become a Creditor and in its capacity as such
shall have the same rights and powers under the Facility
Documents as any Creditor and may exercise them as if it were
not acting as the Trustee.
(b) The Trustee may engage in any kind of business (including,
without limitation, acting as agent or trustee under the
Facility Documents) with a Borrower or Guarantor, or any other
person as if it were not the Trustee, and may accept fees or
other consideration for services in connection with any
Relevant Document and otherwise without having to account to
the Creditors.
25.11 INDEMNITY
(a) The Creditors shall indemnify the Trustee (to the extent not
reimbursed by a Borrower or Guarantor under any Transaction
Document) ratably in accordance with the A$ Equivalents of
their respective Guaranteed Moneys against all liabilities,
losses, costs, expenses or damages it may sustain or incur in
any way (in its capacity as the Trustee) under or in relation
to the Transaction Documents, other than the costs of
replacement referred to in Clause 25.15(i).
(b) No Creditor which is party to an Approved Facility shall be
liable under paragraph (a) for any of the foregoing to the
extent that they arise from the wilful misconduct or
negligence of the Trustee.
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(c) This Clause 25.11 shall not affect the liability of any
Borrower or Guarantor.
25.12 INDEPENDENT INVESTIGATION OF CREDIT
Each Creditor agrees that it has made and will continue to make,
independently and without reliance on the Trustee or any other
Creditor, and based on such documents, agreements and information as it
deems appropriate:
(a) its own investigations into the affairs of the Borrowers and
the Guarantors; and
(b) its own analyses and decisions as to taking or not taking
action under any Relevant Document.
25.13 NO MONITORING
Except where a Transaction Document otherwise expressly provides, the
Trustee shall not be required to keep itself informed as to the
performance or observance by any Borrower or Guarantor of any Relevant
Document or any other document or agreement or to inspect the
properties or books of any Borrower or Guarantor.
25.14 INFORMATION
(a) The Trustee shall promptly furnish to the Creditors copies of
all notices, reports and other documents furnished to it
(including, without limitation, any disclosures made to it
under Clauses 3 and 4), in its capacity as Trustee under the
Transaction Documents, which in its opinion are material
unless the Transaction Documents by their terms require such
notices, reports or documents to be furnished to such
Creditors at the same time as they are furnished to the
Trustee.
(b) Nothing in any Transaction Document shall oblige the Trustee
to disclose any information if such disclosure would or might
in its opinion constitute a breach of any law or any duty of
secrecy or confidence.
25.15 REPLACEMENT OF TRUSTEE
(a) Subject to the appointment of a successor Trustee as provided
in this Clause:
(i) the Trustee may resign at any time by giving not less
30 days' notice to the Creditors and Foster's Brewing
Group;
(ii) if the Trustee has not complied with the instructions
of the Majority Creditors to:
(A) make a declaration under Clause 5.2(A) or
(B);
(B) make a demand under Clause 6 on any
Guarantor; or
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(C) enforce the rights and powers conferred on
the Trustee under those Clauses when
instructed by the Majority Creditors to do
so,
then the Majority Creditors may by giving notice to
the Trustee and Foster's Brewing Group immediately
remove the Trustee;
(iii) the Majority Creditors may remove the Trustee from
office by giving not less than 30 days' notice to the
Trustee and Foster's Brewing Group and subject to
Clause 25.15(b)(ii), after consultation with Foster's
Brewing Group, shall have the right to appoint a
successor who accepts the appointment;
(iv) Foster's Brewing Group may, subject to Clause
25.15(c), and if no Event of Default or Potential
Event of Default is subsisting, remove the Trustee
from office by giving not less than 30 days' notice
to the Trustee and the Creditors (if any); and
(v) unless a notice has been given under paragraph
(a)(ii), (iii) or (iv) in relation to the Trustee,
the Trustee may at any time by notice to the
Creditors and Foster's Brewing Group appoint any of
its Related Companies which accepts such appointment
as its successor.
(b) (i) Upon such notice of resignation or removal under
paragraph (a)(i), (iii) or (iv), Foster's Brewing
Group shall, unless an Event of Default or Potential
Event of Default is subsisting, have the right to
appoint a successor who accepts such appointment.
(ii) If the Trustee has been removed or resigned under
paragraph (a)(i), (ii), (iii) or (iv) (as the case
may be) and if an Event of Default or Potential Event
of Default is subsisting, the Majority Creditors
shall have the right to appoint a successor who
accepts the appointment.
(iii) If Foster's Brewing Group gives notice removing the
Trustee under paragraph (a)(iv), and prior to the
expiration of 30 days' after the giving of the
notice, an Event of Default occurs, the Majority
Creditors shall have the right to appoint a successor
who accepts such appointment.
(iv) Upon such resignation or removal under paragraph (i),
(ii) or (iii), Foster's Brewing Group shall have the
right to reject the appointment of a successor if, in
its reasonable opinion, the fees to be charged by the
successor are unreasonable having regard to the fees
charged by other Trustees of a similar standing.
(v) Any consultation on behalf of the Creditors
contemplated by this Clause 25.15 may be carried out
by a committee of not more than five Creditors
appointed by the Majority Creditors.
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(c) Unless the successor is a Related Company of the Trustee, the
Trustee shall not be removed, and no successor shall be
appointed, by Foster's Brewing Group without, if there are any
Creditors, the prior consent of the Majority Creditors (which
consent shall not be unreasonably withheld).
(d) If no successor is so appointed within 30 days after such
notice, then the retiring Trustee may on behalf of the
Creditors appoint a successor who accepts such appointment.
(e) Until the successor is appointed, the Trustee shall continue
to act as the trustee of the Creditors under the Transaction
Documents.
(f) Upon its appointment under this Clause 25.15, such successor
shall succeed to and become vested with all the rights, powers
and obligations of the retiring Trustee and the retiring
Trustee shall be discharged from its rights, powers and
obligations.
(g) The retiring Trustee shall execute and deliver such documents
or agreements as may be necessary or desirable to transfer or
assure to the successor any Security Interest or Guarantee
held by the retiring Trustee in relation to the Trust Fund and
the Guaranteed Moneys or in any other way to effect the
appointment of the successor and ensure that all relevant
public registers record the successor as the trustee of the
Trust Fund.
(h) After any such resignation or removal, the provisions of this
Clause 25 shall continue in effect in respect of anything done
or omitted to be done by it while it was acting as the
Trustee.
(i) The Trustee shall pay the costs in respect of its replacement
if it retires under this Clause 25.15 or if it is removed by
the Majority Creditors under paragraph (a)(ii). In all other
cases, Foster's Brewing Group shall pay the costs of replacing
the Trustee under this Clause 25.15.
25.16 AMENDMENT OR WAIVER OF TRANSACTION DOCUMENTS
(a) Each Creditor authorises the Trustee to agree with the other
parties to any Transaction Document to any amendment to, or to
any waiver in respect of, any provision of, such Transaction
Document if:
(i) the amendment or waiver will not:
(1) increase the obligations of any Creditor;
(2) change the dates or amounts of payment of
any of the Guaranteed Moneys;
(3) release or discharge any Guarantor from its
obligations under Clause 6;
(4) amend or waive Clause 4.1(e) or (g) or
Clause 12;
(5) amend or waive this Clause 25.16;
(6) amend Clause 5.1(d) or 5.5;
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(7) alter the entitlement of any Creditor under
Clause 13 or the order of priority set out
in that Clause or any provision under which
the agreement or instructions of all or any
Creditors are required; and
(ii) (1) the Trustee is satisfied that the amendment
is made or the waiver is given to correct a
manifest documentary error or a documentary
error of a minor nature or that the
amendment or waiver is of a formal or
technical nature only; or
(2) the Majority Creditors have, upon request by
the Trustee, notified the Trustee of their
agreement to the amendment or waiver.
(b) An amendment or waiver which cannot be made or given under
paragraph (a) may only be made or given by the Trustee acting
on the instructions of all Participating Creditors except
that, in the case of an amendment or waiver to Clause
4.1(g)(ii), the consent of the Majority Creditors and those
Creditors which have extended an Approved Facility to the
relevant Borrower is required.
(c) Each Creditor will be bound for the purposes of all Relevant
Documents by any amendment agreed to, or waiver given, by the
Trustee as provided in paragraph (a) or (b) in respect of any
provision of a Transaction Document as if it were party to the
relevant amendment agreement or had given the relevant waiver.
(d) (i) Notwithstanding any other provision of this Deed, if:
(A) any Event of Default or Potential Event of
Default which entitles (or if that Potential
Event of Default becomes an Event of
Default, would entitle) a Creditor or, if
applicable, its Facility Agent on its behalf
to give a notice under Clause 5.2; or
(B) any event which entitles a Creditor or, if
applicable, its Facility Agent to give a
notice under Clause 5.5,
is subsisting, that Creditor or, if applicable, its
Facility Agent may waive any of its rights which
accrue to it as a result (including, without
limitation, its right to make a declaration under
Clause 5.2(A) and/or (B) or (as applicable Clause
5.5(A) and/or (B)).
(ii) Neither the Trustee nor any other Creditor may waive
those rights.
(iii) Any such waiver does not bind any other Creditor
unless the waiver has been given by a Facility Agent
on behalf of the Creditors under the applicable
Syndicated Facility, in which case the waiver will
bind each of those Creditors in its capacity as a
Creditor under the Syndicated Facility.
(e) (i) Each of the Guarantors and Borrowers irrevocably
authorises Foster's Brewing Group to agree with any
other party to a
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Transaction Document to any amendment to, or to any
waiver in respect of, any provision of such
Transaction Document. Its consent to any such
amendment or waiver is not required. Despite the
foregoing, the consent of the Guarantors is required
to any amendment to, or to any waiver in respect of,
Clause 6 and, if given, such consent will not in any
way limit or affect Clauses 6.4 and 6.12.
(ii) Each Guarantor and Borrower will be bound by any such
amendment or waiver agreed to by Foster's Brewing
Group as if it were party to the relevant amendment
agreement or waiver.
(f) A provision of a Transaction Document may only be amended or
waived in a document. Without limitation, the document may be
executed as a deed or, regardless of the relevant Transaction
Document being a deed, as an agreement.
26. MEETINGS
--------------------------------------------------------------------------------
26.1 CONVENING OF MEETING
(a) Whenever the Trustee thinks fit, it may convene a Meeting to
consider a matter arising under or in relation to the
Transaction Documents.
(b) The Trustee shall convene a Meeting to consider such a matter
if requested to do so by:
(i) Participating Creditors, the A$ Equivalent of whose
Total Exposures exceed one fifth of the A$ Equivalent
of the Total Exposures of all Participating Creditors
and who comprise more than one fifth in number of all
Participating Creditors; or
(ii) Foster's Brewing Group.
26.2 PROCEDURES
(a) The Trustee shall give prior notice of a Meeting to each
Participating Creditor.
(b) No Creditor other than a Participating Creditor may attend or
vote at a Meeting.
(c) The Trustee shall act as chairman of Meetings, but has no vote
in that capacity.
(d) The procedures at Meetings are to be determined by the
majority of Creditors represented at the meeting.
(e) A Participating Creditor may attend a Meeting by conference
telephone with the Trustee and other Participating Creditors
present
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at the Meeting or through telephone or electronic
communication facilities.
(f) A Participating Creditor may, by notice to the Trustee,
appoint another Participating Creditor as its proxy to attend
a Meeting and vote on is behalf.
27. PROPORTIONATE SHARING
--------------------------------------------------------------------------------
27.1 SHARING
Subject to Clause 27.3, whenever at any time following the occurrence
of an Event of Default referred to in Clause 5.2 (e) of which a
Creditor (the RECIPIENT) is actually aware or has been notified under
this Deed and which has not been waived, the Recipient receives or
recovers (whether by way of set-off, banker's lien or otherwise) from
the Borrower or a Guarantor (the PAYER) any Guaranteed Moneys otherwise
than:
(a) under any Separate Security being a Security Interest which is
permitted to exist under this Deed; or
(b) by way of appropriation of, or set off against, any deposit of
the type mentioned in paragraph (b), (i) or (k) of the
definition of Permitted Security Interest in Clause 1.1,
then, subject to Clause 27.2:
(c) the Recipient shall forthwith notify the Trustee;
(d) such Recipient shall forthwith (unless the Trustee otherwise
directs) pay those moneys to the Trustee;
(e) the Recipient shall treat such payment as if it were a payment
by the Payer on account of all moneys then payable to the
Creditors entitled to share in that payment under the
Transaction Documents; and
(f) (i) such payment or recovery shall be deemed to have been
a payment for the account of the Trustee and not to
the Recipient for its own account, and to that extent
the liability of the Borrower which owes those
Guaranteed Moneys and of the Guarantors under Clause
6 in respect of those moneys to the Recipient shall
not be reduced by such recovery or payment, other
than to the extent of any distribution of its ratable
share of those moneys received by the Recipient under
Clause 13; and
(ii) (without prejudice to sub-paragraph (i)) the relevant
Borrower and the Guarantors shall, immediately upon
the Recipient making or becoming liable to make a
payment under paragraph (d) or, where Clause 27.2
applies, upon the moneys the subject of such payment
becoming subject to this paragraph (f) under Clause
27.2(d), jointly and severally indemnify that
Recipient against such payment to the extent
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that its liability has (notwithstanding sub-paragraph
(i)) been discharged by such recovery or payment.
If all or a portion of the relevant recovery or payment by or to the
Recipient is subsequently rescinded or must otherwise be restored to
any Borrower or Guarantor, the Creditors which received any moneys as a
result of the operation of this Clause 27.1 in respect of a payment to
the Recipient shall repay to the Trustee for the account of the
Recipient such amount (other than an amount repaid to the Recipient
under Clause 27.2(b)) as shall be necessary to ensure that all the
Creditors entitled to share in that payment under the Transaction
Documents share ratably in the amount of the recovery or payment
retained, and paragraphs (e) and (f) above shall apply only to the
amount, if any, which is not required to be restored.
27.2 REPAYMENT
(a) Any moneys paid by a Recipient under Clause 27.1(d) to the
Trustee before the Trustee gives a notice under Clause 5.2
shall be held by the Trustee in a suspense account.
(b) If the Trustee has not given a notice under Clause 5.2 within
30 days of the payment by the Recipient, it shall repay those
moneys to the Recipient.
(c) The Recipient may then appropriate those moneys in reduction
of the Guaranteed Moneys due for payment to it. Clauses
27.1(e) and (f) shall not apply to those moneys.
(d) If the Trustee gives a notice under Clause 5.2 within 30 days
of the payment by the Recipient, then Clauses 27.1(e) and (f)
shall apply to those moneys.
27.3 TRANSACTIONAL FACILITIES
Notwithstanding any other provision of this Deed, no Creditor is
obliged under this Clause 27 to pay to the Trustee:
(a) any Guaranteed Moneys received or recovered by it from a
Borrower under a Transactional Facility during the period
before the Transactional Facility has been terminated or
closed out as a result of the occurrence of a termination
event or an event of default (howsoever called) under the
Transactional Facility; and
(b) any amounts owing to it under any Treasury Transactions which
are, under any close-out netting provision contained in an
ISDA master agreement or similar agreement, netted off against
any amounts owing by it under any Treasury Transactions.
Clauses 27.1 and 27.2 will only apply to the net cash amount
(if any) received or recovered by the Creditor under the
close-out netting provision or similar agreement after an
Event of Default referred to in Clause 5.2(e).
For the purposes of this Clause 27.3, a close-out netting provision
means one in which if a particular event (including a termination event
or an event of default under the relevant ISDA master agreement or
similar agreement) happens:
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(i) particular obligations of the parties may be terminated;
(ii) the termination values of the obligations are calculated; and
(iii) the termination values are netted, or may be netted, so that
only a net cash amount is payable.
28. STAMP DUTIES
--------------------------------------------------------------------------------
(a) Each Borrower and Guarantor 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
any Transaction Document or any payment or receipt or any
other transaction contemplated by any Transaction Document.
(b) Such Taxes shall include any financial institutions duty,
debits tax or other Taxes payable by return and any such Taxes
passed on to an Indemnified Party by any bank or financial
institution.
(c) Each Borrower and Guarantor shall indemnify each Indemnified
Party on demand against any liabilities resulting from delay
or omission to pay such Taxes for which it is responsible.
(d) The liability of all Borrowers and Guarantors under this
Clause is joint and several.
29. EXPENSES AND FEES
--------------------------------------------------------------------------------
29.1 EXPENSES
Each Borrower and Guarantor shall on demand reimburse:
(a) the Trustee for its expenses (including but not limited to
travelling and out-of-pocket expenses) in connection with the
preparation, execution and completion of the Transaction
Documents and any subsequent consent, approval, waiver,
amendment, release, discharge or termination;
(b) subject to Foster's Brewing Group's prior approval, each
Creditor for its expenses (including legal costs and expenses)
in connection with the matters mentioned in paragraph (a) to
the extent they have been incurred in accordance with that
approval; and
(c) each Indemnified Party for its expenses in connection with the
enforcement of, or the preservation of any rights under, the
Transaction Documents to which it is a party including,
without limitation, any expenses incurred in retaining
consultants to evaluate matters of material concern to the
Indemnified Party,
including, in the case of paragraphs (a) and (c), legal costs and
expenses on a full indemnity basis or solicitor's own client basis,
whichever is the greater.
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The liability of all Borrowers and Guarantors under this Clause is
joint and several.
29.2 FEES OF TRUSTEE
Foster's Brewing Group shall pay to the Trustee such trustee fees at
such times as may from time to time be agreed by the Trustee and
Foster's Brewing Group.
30. NOTICES
--------------------------------------------------------------------------------
All notices, requests, demands, consents, approvals, disclosures,
agreements or other communications to or by a party to a Transaction
Document shall:
(a) be in writing, and subject to paragraph (d), addressed to the
address of the recipient shown in this Deed, the Register or
to such other address as it may have notified the sender;
(b) subject to Clause 1.6, be signed by an Authorised Officer of
the sender;
(c) be deemed to be duly given or made:
(i) (in the case of delivery in person or by post) when
delivered to the recipient at such address;
(ii) (in the case of telex) on receipt by the sender of
the answerback code of the recipient at the end of
transmission; or
(iii) (in the case of facsimile transmission) on receipt by
the sender of acknowledgment of transmission free of
error at the end of transmission,
but if such delivery or receipt is later than 4 p.m. (local
time) or is not on a day on which business is generally
carried on in the place to which such communication is sent,
it shall be deemed to have been duly given or made at the
commencement of business on the next such business day in that
place; and
(d) where they are to be sent by the Trustee to a Creditor,
Facility Agent or Representative, addressed to the address of
the recipient recorded in the Register (as updated under
Clause 9.2).
Any communication by facsimile transmission shall be confirmed by
delivery in person, post or telex, but no delay in receipt or
non-receipt of any such confirmation shall affect the time at which the
communication is deemed to be duly given or made as provided in
paragraph (c)(iii).
The facsimile, telex and telephone numbers and contact personnel in the
case of Foster's Brewing Group and the Trustee are:
FOSTER'S BREWING GROUP
77 Southbank Boulevard, Southbank, Vic 3006
Fax: (03) 9633 2634
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Telex: AA32191
Attention: Vice President, Treasury
TRUSTEE
65 Southbank Boulevard
Southbank Vic 3205
Fax: (03) 694 6462
Attention: Mr I Johnston
31. REPRESENTATIVES AND FACILITY AGENTS
--------------------------------------------------------------------------------
31.1 BORROWERS AND GUARANTORS
Any notice or other document that has to be given to, or consent or
approval that has to be obtained from, a Borrower or Guarantor under a
Transaction Document shall be deemed to have been given to or obtained
from that Borrower or Guarantor for the purposes of that Transaction
Document if it is given to or obtained from Foster's Brewing Group.
31.2 CREDITORS
Any:
(a) document, notice or request to be given to;
(b) document, notice or demand to be given under Clause 5, 6 or 9
by;
(c) instructions or directions to be given to the Trustee by; or
(d) Meeting to be attended by,
a Creditor:
(e) which has a Representative (including a Creditor Group
Representative); or
(f) in its capacity as a Creditor under a Syndicated Facility,
shall be given to or by or attended by (as the case may be):
(g) unless paragraph (f) applies, its Representative; or
(h) where paragraph (f) applies, the Facility Agent for that
Syndicated Facility, instead of that Creditor.
31.3 PAYMENTS AND NOTICES UNDER SYNDICATED FACILITIES
Except where a Transaction Document expressly provides otherwise:
(a) all payments to be made by a Borrower or Guarantor under a
Transaction Document to or for account of a Creditor in
respect of any money owing to the Creditor under a Syndicated
Facility shall be paid to the Facility Agent for that
Syndicated Facility for distribution in accordance with the
relevant Facility Document; and
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(b) any notice, demand, certificate, request or direction given by
a Facility Agent shall for the purposes of each Relevant
Document be deemed to have been given by each Creditor party
to the relevant Syndicated Facility or such of those Creditors
as stated by that Facility Agent in the relevant
communication.
Notwithstanding paragraph (b), a Facility Agent cannot execute the
Creditor Accession Deeds on behalf of the Creditors under its
Syndicated Facility. Separate Creditor Accession Deeds are to be
executed by those Creditors.
31.4 CREDITOR GROUP
(a) A Creditor shall notify the Trustee and Foster's Brewing Group
if it is a member of a Creditor Group.
(b) A Creditor which has given a notice under paragraph (a) shall
ensure that its Creditor Group has a Representative.
(c) A Creditor Group may only have one Representative.
(d) No member of a Creditor Group may have any other
Representative.
(e) The Creditor, or the Representative on its behalf, shall
notify the Trustee and Foster's Brewing Group of the
Representative's identity.
(f) If a Creditor has not given a notice as required under
paragraph (a) or if its Creditor Group does not have a
Representative, the Trustee may select any member of the
Creditor Group as its Representative.
(g) The notice shall be given to Foster's Brewing Group and to the
Representative selected under paragraph (f) and to the members
of the Creditor Group.
32. AUTHORISED OFFICERS
--------------------------------------------------------------------------------
Each Borrower and Guarantor irrevocably:
(a) authorises each Creditor and the Trustee to rely on a
certificate by any person purporting to be a director or
secretary of it or such other officer of the Borrower and
Guarantor as is acceptable to the Trustee as to the identity
and signatures of its Authorised Officers; and
(b) warrants, and agrees that it will not dispute, that those
persons have been authorised to give notices and
communications under or in connection with the Transaction
Documents and, in the case of Foster's Brewing Group's
Authorised Officers, to act as its attorneys under the Power
of Attorney and to sign the certificates mentioned in Clause
8.
33. GOVERNING LAW AND JURISDICTION
--------------------------------------------------------------------------------
33.1 GOVERNING LAW
This Deed is governed by the laws of Victoria.
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33.2 JURISDICTION
With respect to any legal action or proceedings which may be brought at
any time with respect to any Relevant Document or any transaction
contemplated in any Relevant Document each Borrower and Guarantor
irrevocably:
(a) submits to and accepts, for itself and in respect of its
assets, generally and unconditionally the non-exclusive
jurisdiction of any of the courts of:
(i) any state or territory of Australia;
(ii) the State of New York and the United States of
America sitting, in each case, in New York City;
(iii) England;
(iv) the Dominion of Canada;
(v) the province of Ontario;
(vi) the Commonwealth of Australia,
as the Trustee (in the case of a Transaction Document) or a
Creditor which is party to an Approved Facility (in the case
of any of its Facility Documents) may elect; and
(b) waives any objection it may have now or in the future to the
venue of any such action or proceedings and any claim it may
have now or in the future that any such action or proceeding
has been brought in an inconvenient forum.
Each party irrevocably waives any and all right to trial by jury in any
legal proceedings.
33.3 PROCESS AGENTS
(a) Each of the Borrowers and Guarantors irrevocably nominates
(except where the person specified below is itself):
(i) Foster's Brewing Group as its agent to receive
service of process out of courts in any state of
Australia or courts of the Commonwealth of Australia;
(ii) Paracor Finance Inc of 535 Madison Avenue, New York
NY 10022 as its agent to receive service of process
out of courts of the State of New York and the United
States of America sitting, in each case, in New York
City;
(iii) Treasury UK as its agent to receive service of
process out of courts of England; and
(iv) Treasury Canada as its agent to receive service of
process out of courts in Ontario or of the Dominion
of Canada,
and each such person which is party to this Deed accepts such
appointment.
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(b) If any process agent ceases to have an office in the place
specified each Borrower and Guarantor shall ensure that there
will at all times be another person in that place acceptable
to the Trustee to receive process on its behalf.
34. CONFIDENTIALITY
--------------------------------------------------------------------------------
34.1 CONFIDENTIALITY
Subject to Clause 34.2, neither any Creditor nor the Trustee shall
disclose any unpublished information or documents supplied by any
Borrower or Guarantor in connection with the Relevant Documents which
are specifically indicated by any Borrower or Guarantor to be
confidential or which are not in the public domain.
34.2 PERMITTED DISCLOSURE
A Creditor or the Trustee may disclose any confidential information or
documents:
(a) in enforcing a Relevant Document or in a proceeding arising
out of or in connection with a Relevant Document or to the
extent that disclosure is regarded by it as necessary to
protect its interests;
(b) if required under a binding order of a Governmental Agency or
any procedure for discovery in any proceedings;
(c) if required under any law or any administrative guideline,
directive, request or policy 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 similarly situated;
(d) as required or permitted by any Relevant Document;
(e) to its legal advisers and its consultants; or
(f) with the prior written consent of Foster's Brewing Group.
34.3 SURVIVAL OF OBLIGATION
This Clause survives the termination of this Agreement.
35. ASSIGNMENTS
--------------------------------------------------------------------------------
Subject to Clauses 7.2 and 8(c), except as expressly permitted by a
Transaction Document and without prejudice to the assignment,
substitution or novation provisions of a Facility Document, none of the
Borrowers, Guarantors or Creditors shall assign or transfer any of its
rights and/or obligations under a Transaction Document.
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36. COUNTERPARTS
--------------------------------------------------------------------------------
This Deed may be executed in any number of counterparts. All of such
counterparts taken together shall be deemed to constitute the one
instrument.
37. ACKNOWLEDGEMENT BY BORROWERS AND GUARANTORS
--------------------------------------------------------------------------------
Each Borrower and Guarantor confirms that:
(a) it has not entered into any Transaction Document in reliance
on, or as a result of, any statement or conduct of any kind of
or on behalf of any Indemnified Party or any Related Company
of any Indemnified Party (including, without limitation, any
advice, warranty, representation or undertaking);
(b) neither any Indemnified Party nor any Related Company of any
Indemnified Party is obliged to do anything (including,
without limitation, disclose anything or give advice), except
as expressly set out in the Relevant Documents; and
(c) it enters into this Deed for valuable consideration received.
38. ATTORNEYS
--------------------------------------------------------------------------------
Each attorney executing this Deed states that the attorney has no
notice of the revocation of the attorney's power of attorney.
SIGNED SEALED AND DELIVERED for ) A.L. Trimmer (Sgd.)
and on behalf of FOSTER'S BREWING ) -------------------------------
GROUP LIMITED by its attorney in the ) Attorney
presence of: Print name: ANNE LORRAINE
TRIMMER
F. Bonollo (Sgd.)
---------------------------------------
Witness
Print name: FRANCESCO BONOLLO
SIGNED SEALED AND DELIVERED for ) A.L. Trimmer (Sgd.)
and on behalf of BEAMISH & ) -------------------------------
CRAWFORD Plc by its attorney in the ) Attorney
presence of: Print name: ANNE LORRAINE
TRIMMER
F. Bonollo (Sgd.)
---------------------------------------
Witness
Print name: FRANCESCO BONOLLO
SIGNED SEALED AND DELIVERED for ) A.L. Trimmer (Sgd.)
and on behalf of CARLING O'KEEFE ) -------------------------------
BREWERIES OF CANADA LIMITED by ) Attorney
its attorney in the presence of: Print name: ANNE LORRAINE
TRIMMER
F. Bonollo (Sgd.)
---------------------------------------
Witness
Print name: FRANCESCO BONOLLO
<PAGE>
SIGNED SEALED AND DELIVERED for ) A.L. Trimmer (Sgd.)
and on behalf of CARLTON AND UNITED ) -------------------------------
BREWERIES LIMITED by its attorney in ) Attorney
the presence of: Print name: ANNE LORRAINE
TRIMMER
F. Bonollo (Sgd.)
---------------------------------------
Witness
Print name: FRANCESCO BONOLLO
SIGNED SEALED AND DELIVERED for ) A.L. Trimmer (Sgd.)
and on behalf of CARLTON AND UNITED ) -------------------------------
BREWERIES (N.S.W) PTY. LIMITED by ) Attorney
its attorney in the presence of: Print name: ANNE LORRAINE
TRIMMER
F. Bonollo (Sgd.)
---------------------------------------
Witness
Print name: FRANCESCO BONOLLO
SIGNED SEALED AND DELIVERED for ) A.L. Trimmer (Sgd.)
and on behalf of CARLTON AND UNITED ) -------------------------------
BREWERIES (QUEENSLAND) LIMITED by ) Attorney
its attorney in the presence of: Print name: ANNE LORRAINE
TRIMMER
F. Bonollo (Sgd.)
---------------------------------------
Witness
Print name: FRANCESCO BONOLLO
SIGNED SEALED AND DELIVERED for ) A.L. Trimmer (Sgd.)
and on behalf of COURAGE LIMITED by ) -------------------------------
its attorney in the presence of: ) Attorney
Print name: ANNE LORRAINE
TRIMMER
F. Bonollo (Sgd.)
---------------------------------------
Witness
Print name: FRANCESCO BONOLLO
SIGNED SEALED AND DELIVERED for ) A.L. Trimmer (Sgd.)
and on behalf of ELDERS LIMITED ) -------------------------------
by its attorney in the presence of: ) Attorney
Print name: ANNE LORRAINE
TRIMMER
F. Bonollo (Sgd.)
---------------------------------------
Witness
Print name: FRANCESCO BONOLLO
SIGNED SEALED AND DELIVERED for ) A.L. Trimmer (Sgd.)
and on behalf of ELDERS MEAT ) -------------------------------
INVESTMENTS PTY LTD by its attorney ) Attorney
in the presence of: Print name: ANNE LORRAINE
TRIMMER
F. Bonollo (Sgd.)
---------------------------------------
Witness
Print name: FRANCESCO BONOLLO
<PAGE>
SIGNED SEALED AND DELIVERED for ) A.L. Trimmer (Sgd.)
and on behalf of FBG CANADIAN ) -------------------------------
TREASURY INC. by its attorney in the ) Attorney
presence of: Print name: ANNE LORRAINE
TRIMMER
F. Bonollo (Sgd.)
---------------------------------------
Witness
Print name: FRANCESCO BONOLLO
SIGNED SEALED AND DELIVERED for ) A.L. Trimmer (Sgd.)
and on behalf of FBG TREASURY ) -------------------------------
(AUST.) LIMITED by its attorney in the ) Attorney
presence of: Print name: ANNE LORRAINE
TRIMMER
F. Bonollo (Sgd.)
---------------------------------------
Witness
Print name: FRANCESCO BONOLLO
SIGNED SEALED AND DELIVERED for ) A.L. Trimmer (Sgd.)
and on behalf of FBG TREASURY (U.K.) ) -------------------------------
by its attorney in the presence of: ) Attorney
Print name: ANNE LORRAINE
TRIMMER
F. Bonollo (Sgd.)
---------------------------------------
Witness
Print name: FRANCESCO BONOLLO
SIGNED SEALED AND DELIVERED for ) A.L. Trimmer (Sgd.)
and on behalf of FBG TREASURY (U.S.) ) -------------------------------
by its attorney in the presence of: ) Attorney
Print name: ANNE LORRAINE
TRIMMER
F. Bonollo (Sgd.)
---------------------------------------
Witness
Print name: FRANCESCO BONOLLO
SIGNED SEALED AND DELIVERED for ) A.L. Trimmer (Sgd.)
and on behalf of JEDBERG ) -------------------------------
INVESTMENTS PTY LIMITED by its ) Attorney
attorney in the presence of: Print name: ANNE LORRAINE
TRIMMER
F. Bonollo (Sgd.)
---------------------------------------
Witness
Print name: FRANCESCO BONOLLO
SIGNED SEALED AND DELIVERED for ) A.L. Trimmer (Sgd.)
and on behalf of OVERLOAD ) -------------------------------
INVESTMENTS PTY LIMITED by its ) Attorney
attorney in the presence of: Print name: ANNE LORRAINE
TRIMMER
F. Bonollo (Sgd.)
---------------------------------------
Witness
Print name: FRANCESCO BONOLLO
<PAGE>
SIGNED SEALED AND DELIVERED for ) A.L. Trimmer (Sgd.)
and on behalf of NATIONAL MUTUAL ) -------------------------------
TRUSTEES LIMITED by its attorney in the ) Attorney
presence of: Print name: ANNE LORRAINE
TRIMMER
F. Bonollo (Sgd.)
---------------------------------------
Witness
Print name: FRANCESCO BONOLLO
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ANNEXURE A
FORM OF ACCESSION DEED FOR NEW CREDITORS
--------------------------------------------------------------------------------
DATE
-------------
Date
PARTIES
-------------
1. [CREDITOR] of
(the NEW CREDITOR); and
2. FOSTER'S BREWING GROUP LIMITED (ACN 007 620 886) of 77
Southbank Boulevard, Southbank, Victoria 3006 (FOSTER'S
BREWING GROUP),
IN FAVOUR OF:
3. EACH OTHER; and
4. (IN THE CASE OF THE NEW CREDITOR), THE TRUSTEE, BORROWERS AND
CREDITORS, IN EACH CASE, FROM TIME TO TIME (within the meaning
given in the FBG Group Financing Trust Deed referred to below)
(the BENEFICIARIES).
WHEREAS
-------------
A Under Clause 7 of a deed (the FBG GROUP FINANCING TRUST DEED)
dated 21 February 1993 between (among others) National Mutual
Trustees Limited and Foster's Brewing Group (as amended), a
person may become a Creditor as defined in, and for the purposes
of, the FBG Group Financing Trust Deed.
B The New Creditor wishes to assume the rights and obligations of
a Creditor under the Transaction Documents.
C Foster's Brewing Group has been authorised by the Trustee, the
Borrowers and the Guarantors to execute this Deed on their
behalf.
--------------------------------------------------------------------------------
NOW THIS DEED WITNESSES as follows:
1. In this Deed terms defined in the FBG Group Financing Trust Deed have
the same meanings.
2. With effect on and from the date of this Deed:
(a) the New Creditor is a party to the FBG Group Financing Trust
Deed as a Creditor;
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(b) a reference in the FBG Group Financing Trust Deed or any
Transaction Document to a CREDITOR includes a reference to the
New Creditor;
(c) Foster's Brewing Group (for itself and each of the Trustee,
the Borrowers and the Guarantors) grants to the New Creditor
the rights of a Creditor under the FBG Group Financing Trust
Deed and the other Transaction Documents; and
(d) the New Creditor assumes obligations towards each of the
Beneficiaries from time to time imposed upon Creditors under
the FBG Group Financing Trust Deed and the other Transaction
Documents.
3. This Deed is executed by the New Creditor and Foster's Brewing Group in
favour of each other and, in the case of the New Creditor, the
Beneficiaries from time to time.
4. This Deed shall be governed by the laws of Victoria.
5. Each attorney executing this Deed states that the attorney has no
notice of the revocation of this power of attorney.
6. This Deed may be executed in any number of counterparts. All of such
counterparts taken together shall be deemed to constitute the one
instrument.
IN WITNESS this Deed was executed in [#].
NEW CREDITOR
--------------------------------------------------------------------------------
SIGNED SEALED AND DELIVERED for and on
behalf of [# LIMITED] by its attorney in
the presence of:
---------------------------------------------------
ATTORNEY SIGNATURE
---------------------------------------------------
PRINT NAME
---------------------------------------------------
SIGNATURE
---------------------------------------------------
PRINT NAME
Page 106
<PAGE>
FBG GROUP FINANCING TRUST DEED ARTHUR ROBINSON
& HEDDERWICKS
--------------------------------------------------------------------------------
PARENT
SIGNED SEALED AND DELIVERED for and on
behalf of FOSTER'S BREWING GROUP LIMITED
by its attorney in the presence of:
---------------------------------------------------
ATTORNEY SIGNATURE
---------------------------------------------------
PRINT NAME
---------------------------------------------------
SIGNATURE
---------------------------------------------------
PRINT NAME
[to be executed by each party in the Australian Capital Territory, United
Kingdom, Canada, France, New York State or another jurisdiction outside
Australia approved by Foster's Brewing Group]
Page 107
<PAGE>
FBG GROUP FINANCING TRUST DEED ARTHUR ROBINSON
& HEDDERWICKS
--------------------------------------------------------------------------------
ANNEXURE B
GUARANTOR CONFIRMATION
--------------------------------------------------------------------------------
TO: National Mutual Trustees Limited
cc: Foster's Brewing Group Limited
FBG GROUP FINANCING TRUST DEED
We refer to Clause 11.1 of the deed dated 21 February 1993 entitled FBG GROUP
FINANCING TRUST DEED between Foster's Brewing Group Limited, FBG Treasury
(Aust.) Limited, FBG Treasury (UK) p.l.c., FBG Canadian Treasury Inc., and
National Mutual Trustees Limited (as amended) (the FBG GROUP FINANCING TRUST
DEED).
In this letter terms have the same meaning that they have in the FBG Group
Financing Trust Deed.
We hereby confirm that:
(a) there are no Guaranteed Moneys owing to us (including, without
limitation, any moneys which are reasonably foreseeable as falling
within the definition of Guaranteed Moneys in the future owing to us)];
(B) [our] Limits (if any) have been cancelled]/[we have] no Limits],
in respect of [DESCRIPTION OF APPLICABLE APPROVED FACILITY]
[DATE]
Yours faithfully,
....................................................
for and on behalf of [Insert Creditor's name and ACN/ARBN if applicable]
by [#] (being an Authorised Officer)
Page 108
<PAGE>
FBG GROUP FINANCING TRUST DEED ARTHUR ROBINSON
& HEDDERWICKS
--------------------------------------------------------------------------------
ANNEXURE C1
FORM OF ACCESSION DEED FOR NEW GUARANTORS
--------------------------------------------------------------------------------
DATE
-------------
Date
PARTIES
-------------
1. [COMPANY] [A.C.N. *] incorporated in [#] (the NEW GUARANTOR),
2. THE TRUSTEE AND THE CREDITORS FROM TIME TO TIME (within the
meaning given in the FBG Group Financing Trust Deed referred to
below) (the BENEFICIARIES).
WHEREAS
-------------
A Under Clause 10 of a deed dated 21 February 1993 (as amended)
(the FBG GROUP FINANCING TRUST DEED) between (among others)
Foster's Brewing Group and the Trustee, the New Guarantor is
required to become a Guarantor as defined in, and for the
purposes of, the FBG Group Financing Trust Deed.
B The New Guarantor wishes to become, and assume the obligations
of, a Guarantor under the Transaction Documents.
NOW THIS DEED WITNESSES as follows:
1. In this Deed terms defined in the FBG Group Financing Trust Deed have
the same meanings.
2. The New Guarantor shall, subject to Clause 6.14 of the FBG Group
Financing Trust Deed, as and from the date of this Deed irrevocably be
a Guarantor for the purposes of the Transaction Documents as if it had
been named as a party to the FBG Group Financing Trust Deed in the
capacity of an Initial Guarantor and agrees to perform and be bound by
the terms and conditions of the Transaction Documents as a Guarantor.
All the terms of the Transaction Documents shall bind the New Guarantor
accordingly.
3. This Deed is executed by the New Guarantor in favour of the
Beneficiaries from time to time.
4. This Deed is governed by the laws of Victoria.
5. Each attorney executing this Deed states that the attorney has no
notice of the revocation of his power of attorney.
6. The New Guarantor's address details for the purposes of the Transaction
Documents are as follows:
Page 109
<PAGE>
FBG GROUP FINANCING TRUST DEED ARTHUR ROBINSON
& HEDDERWICKS
--------------------------------------------------------------------------------
IN WITNESS this Deed was executed in [#].
SIGNED SEALED AND DELIVERED for and on
behalf of [# LIMITED] by its attorney in
the presence of:
---------------------------------------------------
ATTORNEY SIGNATURE
---------------------------------------------------
PRINT NAME
---------------------------------------------------
SIGNATURE
---------------------------------------------------
PRINT NAME
Page 110
<PAGE>
FBG GROUP FINANCING TRUST DEED ARTHUR ROBINSON
& HEDDERWICKS
--------------------------------------------------------------------------------
ANNEXURE C2
FORM OF ACCESSION DEED FOR NEW BORROWERS
--------------------------------------------------------------------------------
DATE Date
-------------
PARTIES
-------------
1. [COMPANY] [A.C.N. *] incorporated in [#] (the NEW BORROWER),
2. THE TRUSTEE AND THE CREDITORS FROM TIME TO TIME (within the
meaning given in the FBG Group Financing Trust Deed referred to
below) (the BENEFICIARIES).
WHEREAS
-------------
A Under Clause 10 of a deed (the FBG GROUP FINANCING TRUST DEED)
dated 21 February 1993 between (among others) Foster's Brewing
Group Limited and the Trustee (as amended), the New Borrower is
to become a party to the FBG Group Financing Trust Deed in the
capacity of a Borrower.
B The New Borrower wishes to become, and assume the obligations
of, a Borrower under the Transaction Documents.
NOW THIS DEED WITNESSES as follows:
1. In this Deed terms defined in the FBG Group Financing Trust Deed have
the same meanings.
2. The New Borrower shall, subject to Clause 6.14 of the FBG Group
Financing Trust Deed, as and from the date of this Deed irrevocably be
a party to the FBG Group Financing Trust Deed and the other Transaction
Documents in the capacity of a Borrower as if it had been named as a
party to the FBG Group Financing Trust Deed in the capacity of a
Borrower and agrees to perform and be bound by the terms and conditions
of the Transaction Documents as a Borrower. All the terms of the
Transaction Documents shall bind the New Borrower accordingly.
3. This Deed is executed by the New Borrower in favour of the
Beneficiaries from time to time.
4. This Deed is governed by the laws of Victoria.
5. Each attorney executing this Deed states that the attorney has no
notice of the revocation of his power of attorney.
Page 111
<PAGE>
FBG GROUP FINANCING TRUST DEED ARTHUR ROBINSON
& HEDDERWICKS
--------------------------------------------------------------------------------
6. The New Borrower's address details for the purposes of the Transaction
Documents are as follows:
[#]
SIGNED SEALED AND DELIVERED for and on
behalf of [# LIMITED] by its attorney in
the presence of:
---------------------------------------------------
ATTORNEY SIGNATURE
---------------------------------------------------
PRINT NAME
---------------------------------------------------
SIGNATURE
---------------------------------------------------
PRINT NAME
Page 112
<PAGE>
FBG GROUP FINANCING TRUST DEED ARTHUR ROBINSON
& HEDDERWICKS
--------------------------------------------------------------------------------
ANNEXURE D
GUARANTEED MONEYS CERTIFICATE
--------------------------------------------------------------------------------
To: National Mutual Trustees Limited
FBG GROUP FINANCING TRUST DEED
We refer to Clause 9.9(b) of the deed dated 21 February 1993 entitled FBG GROUP
FINANCING TRUST DEED between Foster's Brewing Group Limited, National Mutual
Trustees Limited and others (as amended) (the FBG GROUP FINANCING TRUST DEED).
In this letter terms have the same meaning that they have in the FBG Group
Financing Trust Deed.
We certify the following information to be true, correct and up to date.
GUARANTEED PRINCIPAL AVAILABLE LIMIT* BORROWER FACILITY DOCUMENT
MONEYS **** AMOUNT*
---------------------------------------------------------------
[total]
The amounts, expiry dates and names of issuers** of Guarantees securing the
above Principal Amounts: [ ]/[Nil]
[Those Guarantees are included in the Principal Amount of [NAME OF ISSUING
CREDITOR]]***
Yours faithfully,
....................................................
For and on behalf of
[#] by [Insert name of Creditor and ACN/ARBN if applicable]
Page 113
<PAGE>
FBG GROUP FINANCING TRUST DEED ARTHUR ROBINSON
& HEDDERWICKS
--------------------------------------------------------------------------------
(being an Authorised Officer).
* NOT APPLICABLE TO TRANSACTIONAL FACILITIES
** EXCLUDING MEMBERS OF THE GROUP
*** INCLUDE IF THE CREDITOR KNOWS THIS IS THE CASE, OTHERWISE DELETE.
**** SPECIFY WHETHER ACTUALLY OR CONTINGENTLY OWING.
Page 114
<PAGE>
FBG GROUP FINANCING TRUST DEED ARTHUR ROBINSON
& HEDDERWICKS
--------------------------------------------------------------------------------
ANNEXURE D1
GUARANTEED MONEYS CERTIFICATE
--------------------------------------------------------------------------------
To: National Mutual Trustees Limited
cc Foster's Brewing Group Limited
FBG GROUP FINANCING TRUST DEED
We refer to Clause 11.1 of the deed dated 21 February, 1993 entitled FBG GROUP
FINANCING TRUST DEED between Foster's Brewing Group Limited, National Mutual
Trustees Limited and others (as amended) the FBG GROUP FINANCING TRUST DEED).
In this letter terms have the same meaning that they have in the FBG Group
Financing Trust Deed.
We certify the following to be true and correct in respect of [describe the
Facility] (APPROVED FACILITY).
We believe that there are or may be Guaranteed Moneys (including, without
limitation, any moneys which are reasonably foreseeable as falling within the
definition of Guaranteed Moneys in the future) owing or that there are Limits in
place in respect of the Approved Facility.
Yours faithfully
---------------------------------------------------------------
For and on behalf of
[#] by [insert name of Creditor and ACN/ARBN of applicable]
(being an Authorised Officer)
Page 115
<PAGE>
FBG GROUP FINANCING TRUST DEED ARTHUR ROBINSON
& HEDDERWICKS
--------------------------------------------------------------------------------
ANNEXURE E
APPROVED FACILITY CERTIFICATE
--------------------------------------------------------------------------------
To: [#] (the CREDITOR)
c.c. National Mutual Trustees Limited
FBG GROUP FINANCING TRUST DEED
We refer to Clause 8 of the FBG Group Financing Trust Deed (the FBG GROUP
FINANCING TRUST DEED) dated 21 February 1993 between Foster's Brewing Group
Limited, FBG Treasury (Aust.) Limited, FBG Treasury (UK) p.l.c., FBG Canadian
Treasury Inc. and National Mutual Trustees Limited (as amended).
Foster's Brewing Group Limited hereby confirms its approval of [each]/[the]
Facility described in the Schedule as an Approved Facility for the purposes of
the FBG Group Financing Trust Deed and all Transaction Documents.
Capitalised terms used in this certificate have the same meaning that they have
in the FBG Group Financing Trust Deed.
SCHEDULE FOR NON-TRANSACTIONAL FACILITIES*
Syndicated Facility: [Yes]/[No]
Name[s] of Creditor[s] in relation to the Facility:
Description of Facility Document[s] for that Facility: [eg., multi-currency
cash advance facility agreement dated # between #]
Limit[s] under that Facility of [the]/[each such] Creditor:
Name[s] of Borrower[s] under that Facility:
Representative for that Creditor: [INSERT NAME]/[Nil]
[Facility Agent for that Syndicated Facility: [INSERT NAME] ]
[REPEAT ABOVE INFORMATION FOR ANOTHER APPROVED FACILITY PROVIDED BY THE SAME
CREDITOR]
[SCHEDULE FOR TRANSACTIONAL FACILITIES
Name of Creditor:
Description of Facility: [eg, foreign currency exchange, interest rate and
currency swap, currency option, overdraft, leasing, guarantee facilities]
Limits for Transactional Facilities (other than Treasury Transactions):
Name of Borrower[s]:[#]
[The address for service of notices and for the purposes of the Register in
relation to [CREDITOR'S NAME] is as follows:
[Address]
Page 116
<PAGE>
FBG GROUP FINANCING TRUST DEED ARTHUR ROBINSON
& HEDDERWICKS
--------------------------------------------------------------------------------
Telephone:
Telex:
Fax:
Attention: [#]
[The address for service of notices and for the purposes of the Register in
relation to that Creditor's Representative is as follows:
[Address]
Telephone:
Telex:
Fax:
Attention: [#]
[The address for service of notices and for the purposes of the Register of the
above named Facility Agent is as follows:
[Address]
Telephone:
Telex:
Fax:
Attention: [#]
Dated [#]
Foster's Brewing Group Limited
By:
Authorised Officer
* NOT APPLICABLE TO TRANSACTIONAL FACILITIES
Page 117
<PAGE>
FBG GROUP FINANCING TRUST DEED ARTHUR ROBINSON
& HEDDERWICKS
--------------------------------------------------------------------------------
ANNEXURE F
VERIFICATION CERTIFICATE FOR ALL NEW GUARANTORS/BORROWERS
--------------------------------------------------------------------------------
To: National Mutual Trustees Limited
FBG GROUP FINANCING TRUST DEED
I [NAME] am a [director] [secretary] of [NAME OF GUARANTOR/BORROWER] (the
COMPANY).
I refer to the FBG Group Financing Trust Deed (the TRUST DEED) dated 21 February
1993 between Foster's Brewing Group Limited, FBG Treasury (Aust.) Limited, FBG
Treasury (UK) p.l.c., FBG Canadian Treasury Inc. and National Mutual Trustees
Limited (as amended).
Expressions defined in the Trust Deed bear the same meaning when used in this
Certificate.
I certify as follows:
1. Attached to this Certificate are true, complete and up to date copies
of each of the following:
(a) the Memorandum and Articles of Association of the Company
(marked A);
(b) a duly executed power of attorney granted by the Company
(marked B) for the purpose of permitting the execution on
behalf of the Company of the Borrower Accession Deed. 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 meeting of the directors or of a
committee of directors of the Company (marked C) approving
execution by the Company of the Borrower Accession Deed,
noting that the directors concluded that there is commercial
benefit for the Company in entering into the transactions
contemplated by the Transaction Documents and that the Company
is solvent, appointing attorneys for the purpose of execution
of the Borrower Accession Deed and appointing Authorised
Officers of the Company for the purpose of the Trust Deed.
Such resolutions have not been amended, modified or revoked
and are in full force and effect.
(d) [except in the case of Foster's Brewing Group and a Borrower
executing a Borrower Accession Deed] an extract (marked D) of
a resolution of the shareholders of the Company approving
execution by the Company of the Guarantor Accession Deed.
2. Attached to this Certificate and marked E is a true copy of a list
containing the names, positions and signatures of the Authorised
Officers of the Company.
Page 118
<PAGE>
FBG GROUP FINANCING TRUST DEED ARTHUR ROBINSON
& HEDDERWICKS
--------------------------------------------------------------------------------
Dated [#]
[#]
By:
Director/Secretary
Page 119
