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Exhibit 99(b)(5)
29 August 2000
TO: Foster's Brewing Group Limited (ABN 49 007 620 886)
77 Southbank Boulevard
Southbank VIC 3006
Attention: Vice President, Treasury
AND TO: Each Borrower
Dear Sirs
Following our recent discussions we wish to amend the facility agreement (as
amended) dated 8 May 1996 between, among others, us (the FACILITY AGREEMENT) in
the manner set out below.
Words which are defined in the Facility Agreement and which are used in this
letter have the same meaning in this letter as in the Facility Agreement, unless
the context requires otherwise.
1. AMENDMENTS
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1.1 The Facility Agreement is amended as follows.
(a) In Recital A, the reference to "Cdn$60,000,000" is replaced
with `Cdn$147,000,000'.
(b) In Clause 1.1, in the definition of COMMITMENT the reference
to "Cdn$60,000,000" is replaced with "Cdn$147,000,000".
(c) In Clause 1.1, the definition of BRIDGING FACILITY AGREEMENT
is inserted as follows:
"BRIDGING FACILITY AGREEMENT means the Bridging Facility
Agreement dated on or about the date of this letter between
FBG Treasury (USA) Inc., Foster's Brewing Group Limited, the
Agent and the Participants as defined under that agreement."
(d) In Clause 1.1, the definition of REGULATION U is inserted as
follows:
"REGULATION U means Regulation U of the Board of Governors of
the US Federal Reserve System, in effect from time to time."
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(e) In Clause 1.3(c), delete the word, "Each" at the beginning of
the paragraph and replace it with the words, "Subject to
Clause 41(b), each".
(f) In Clause 10.1:
o delete the words "through its Lending Office in
Canada" from paragraph (a); and
o delete the words "(Toronto time)" from paragraph (b);
and
o insert a new paragraph (d) as follows:
"The Third Lender will make available the Segment of
the US$ Cash Advance Facility requested under clause
10.1(a) either through its Lending Office in Canada
or the United States in accordance with the relevant
Drawdown Notice and this agreement. Time references
in clause 10.1(b) are to the time in the place where
the relevant Lending Office is located."
(g) A new Clause 40 (Regulation U representation) inserted as
follows:
"Each Lender represents and warrants to each of the Borrowers
and Foster's Brewing Group that it, in good faith, is not
relying upon any MARGIN STOCK (as defined in Regulation U) as
collateral in the extension or maintenance of the financial
accommodation provided for in this Agreement."
(h) A new Clause 41 (Amendments) inserted as follows:
(i) "(a) Each Borrower irrevocably authorises Foster's
Brewing Group to agree with each Lender to any
amendment to, or to any waiver in respect of, any
provision of this Agreement. The Borrower's consent to
any such amendment or waiver is not required. Each
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 or waiver. Any such
amendment or waiver will only be effective after the
Lender has received in form and substance satisfactory
to it a legal opinion with respect to the laws of the
jurisdiction of incorporation of the Borrower and this
Agreement."
(ii) "(b) No amendment to Clauses 10.1(g) and (h) of the
Trust Deed is permitted without the prior written
consent of the Lender who is the Creditor Group
Representative."
(i) In Schedule 1, replace the Lending Office details for US$ and
Cdn$ payments and the US$ Cash Advance Facilities with:
"LENDING OFFICE FOR CDN$ PAYMENTS AND THE CDN$ CASH ADVANCE
FACILITY
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BANK OF AMERICA CANADA
Address: 200 Front Street West
18th Floor
TORONTO ONTARIO M5HIB6
Telex: N/A
Fax: (416) 349 4040
Telephone: (416) 349 5484/5464
Attention: Madina Sarles de Andrade/Clara McGibbon
LENDING OFFICE FOR US$ PAYMENTS AND THE US$ CASH ADVANCE
FACILITY
BANK OF AMERICA CANADA
Address: 200 Front Street West
18th Floor
TORONTO ONTARIO M5HIB6
Telex: N/A
Fax: (416) 349 4040
Telephone: (416) 349 5484/5464
Attention: Madina Sarles de Andrade/Clara McGibbon
OR
BANK OF AMERICA CALIFORNIA
Address: Corporate Credit Services - Concorde
1850 Gateway Boulevard
Concorde California 95420-3282
Ref: FBG Treasury (US), Inc
Telex: N/A
Fax: (925) 969 2861
Telephone: (925) 675 8236
Attention: Elvira Sabio
(j) In Annexure D, insert after the words "Bank of America Canada"
the words "\Bank of America California".
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1.2 The amount of the increase in Commitment effected by this letter may
only be drawn by Treasury USA from the Third Lender (through its
Californian Lending Office unless otherwise agreed by the Lenders) and
such of the other Borrowers in respect of which Bank of America
National Association has receives in form and substance satisfactory to
it a legal opinion with respect to the laws of the jurisdiction of
incorporation of the Borrower and this letter.
1.3 Any breach of this letter shall be deemed to be a breach of the
Facility Agreement.
1.4 Each of Treasury USA and Foster's Brewing Group (jointly and severally)
indemnifies each Lender on demand against any claim, loss, liability,
cost and expense that may be incurred or sustained by the Lender (or
any officer or employee of the Lender) as a consequence of the Lender
having entered into this letter, having provided the Facility or having
made the increased Commitment or the proposed or actual application of
the proceeds of the Segments.
1.5 Notwithstanding any other provision of this letter or the Facility
Agreement ("Relevant Agreement"):
(a) if GST is payable in relation to a supply made under or in
connection with a Relevant Agreement the party making the
supply may, in addition to any amount or consideration payable
under the Relevant Agreement, and subject to issuing a valid
tax invoice, recover from the recipient of the supply an
additional amount on account of GST, such amount to be
calculated by multiplying the relevant amount or consideration
payable for the relevant supply by the prevailing GST rate;
(b) without limiting the generality of the foregoing, in the event
that the Lender is not entitled to an input tax credit in
respect of the amount of any GST charged to or recovered from
the Lender, by any person, or payable by the Lender, or in
respect of any amount which is recovered from the Lender by
way of reimbursement of GST referable directly or indirectly
to any supply made under or in connection with a Relevant
Agreement, the Lender shall be entitled to increase any amount
or consideration payable by the Borrower on account of such
input tax and recover from the Borrower the amount of any such
increase;
(c) where a Borrower is required under a Relevant Agreement to
indemnify or reimburse the Lender for any costs, expenses or
liabilities of the Lender, then the amount of the costs,
expenses or liabilities is the actual amount incurred by the
Lender, less any input tax credit the Lender is entitled to
receive in relation to those costs, expenses or liabilities.
For the purposes of this paragraph (c) the Lender is entitled
to receive those input tax
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credits that can be identified and quantified in accordance
with the apportionment model used by the Lender from time to
time as approved by the Australian Taxation Office.
Any additional amount on account of GST, or on account of an amount for
which the Lender is not entitled to an input tax credit, recoverable
from the Borrower pursuant to paragraph (a) or paragraph (b) of this
Clause shall be calculated without any deduction or set-off of any
other amount.
In this clause the terms input tax credit and tax invoice have the
meanings given in section 195-1 of the A New Tax System (Goods and
Services Tax) Act 1999.
2. FEES
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The Fee Letter is updated by changing the Margin to 0.40% p.a. and the
Facility fee to 0.20% p.a.
Treasury USA must pay to Bank of America Australia, an upfront fee of
Cdn$87,000 within 5 days of the date of this letter.
3. EFFECTIVE DATE
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3.1 Clause 1.1 of this letter takes effect, and the parties agree to be
bound by the amendments effected by that clause, from the date (the
EFFECTIVE DATE) the conditions precedent in the Bridging Facility
Agreement are satisfied or waived by Bank of America and Bank of
America has received each of the following items in form and substance
satisfactory to it:
(a) legal opinion from Mallesons Stephen Jaques, Australian legal
advisers to Bank of America; and
(b) legal opinion of Jones Day Reavis & Pogue, US legal advisers
to FBG Treasury (USA) and Foster's Brewing Group; and
(c) this letter duly executed by all parties to it.
3.2 Subject and without prejudice to clause 3.3, clause 1.1 of this letter
(other than clause 1.1(h)(i)) is not effective if the Chief Financial
Officer of Foster's Brewing Group notifies the Lender that at least 50%
of the shares in Bordeaux have not been directly or indirectly acquired
and that Foster's Brewing Group will not be proceeding with the
proposed acquisition of Bordeaux.
3.3 Notwithstanding anything in this clause 3:
(a) clause 1.1(h)(i) of this letter takes effect from the date the
Lender has received each of the items specified in clause
3.1(a), (b) and (c) in a form and substance satisfactory to it
but it will only take
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effect with respect to a Borrower other than Treasury USA upon
Bank of America having received in form and substance
satisfactory to it a legal opinion with respect to the laws of
the jurisdiction of incorporation of that Borrower and this
Agreement; and
(b) Bank of America is entitled to retain all of the upfront fee
paid under clause 2 above and the changes to the Margin and
Facility fee under that clause will continue to apply
regardless of clause 3.2 but the Bank of America agrees to
review the Margin and Facility fee in consultation with
Foster's Brewing Group if notice is given under clause 3.2.
4. REMAINING PROVISIONS UNAFFECTED
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Except as specifically amended by this letter, all terms and conditions
of the Facility Agreement and Fee Letter remain in full force and
effect. With effect from the Effective Date (as defined in clause 3),
the Facility Agreement and Fee Letter as amended by this letter are
each to be read as a single integrated document incorporating the
amendments effected by this letter.
5. COUNTERPARTS
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The agreement contained in this letter may be accepted by any one of
the Borrowers and Foster's Brewing Group in any number of counterpart
letters. All counterpart letters will be taken to constitute one
instrument.
Yours faithfully
SIGNED for and on behalf of
BANK OF AMERICA NATIONAL ASSOCIATION, )
BA AUSTRALIA LIMITED (ABN 51 004 617 341), )
BANK OF AMERICA CANADA, )
BANK OF AMERICA NATIONAL ASSOCIATION )
AMSTERDAM BRANCH
/s/ Umesh Gupta
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Signature
Umesh Gupta
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SIGNED for and on behalf of
FOSTER'S BREWING GROUP LIMITED (ABN 49 007 620 886), )
FBG TREASURY (AUST.) LIMITED (ABN 80 006 865 738), )
FBG TREASURY (UK) PLC, )
FBG TREASURY (EUROPE) B.V, )
FBG CANADIAN TREASURY INC, )
FBG TREASURY (USA) INC )
/s/ Domenic Panaccio
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Signature
Domenic Panaccio
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Print Name
DATED: 29 August 2000
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