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Exhibit 99(b)(15)
28 August 2000
Mr Domenic E. Panaccio Edward A. Hore
Vice President - Treasury Associate Director
Foster's Brewing Group Limited Food, Beverages & Agribusiness
77 Southbank Boulevard
SOUTHBANK VIC 3006 Telephone: (61 3) 9273 1489
Dear Domenic,
FOSTER'S BREWING GROUP LIMITED ABN 49 007 620 866 ("FOSTER'S") AND ITS
SUBSIDIARIES GROUP (COLLECTIVELY THE "GROUP")
o MULTI OPTION FACILITY (THE "FACILITY")
Following our recent discussions, Australia and New Zealand Banking Group
Limited ("ANZ") is pleased to offer to amend the Multi-Option Facility detailed
in ANZ's letter to you dated 11 February 2000 to provide financial
accommodation for Foster's and the Group. This amended Facility is to be made
available by ANZ (with the exception of any New Zealand Dollar drawings made
under the Foreign Currency Loan Alternative, which will be made available by
ANZ Banking Group (New Zealand) Limited ("ANZ(NZ)")) and is available for
acceptance by Foster's within fourteen days from the date of these advices. The
accommodation detailed in this Offer will be available, subject to the terms
and conditions detailed herein, to meet the Group's corporate funding
requirements. The other facilities as set out in our Financial Accommodation
Package dated 1 February 1999 will continue to be available to the Group (and
be governed by the terms and conditions contained in that document), in
addition to the Facility detailed herein.
The comprehensive terms and conditions which apply to the Facility, and the
individual components thereof, are detailed hereunder. This Offer (once
accepted by the Group and an Approved Facility Certificate having been issued),
supported by the necessary ancillary documentation (including, but not limited
to: (i), evidence satisfactory to ANZ as to the authority of the person
accepting this Offer on behalf of the Group; and (ii), a copy (certified by a
director or secretary as being true, correct, up to date and not subject to any
amendment) of the constitution of each Borrower being provided to ANZ), will:-
(1) constitute the "Facility Document" and the Facility will be an "Approved
Facility" in terms of the FBG Trust Deed (as defined at Appendix 1
herewith); and
(2) need to be read in conjunction with all/any other documentation executed
between Foster's, each constituent of the Group and ANZ relative to the
Facility or any other arrangement.
For ease of reference, this Facility Document is structured under the following
segmented headings:
A. Parameters of the Facility.
B. Specific Facility Terms and Conditions.
C. Legal and General Criteria.
D. Conclusion.
Appendix 1: Definitions and Legend (including Interpretation).
Attachments: 1. Pro Forma Approved Facility Certificate.
2. Pro-forma Drawdown Notice.
DEFINITIONS AND LEGEND
For the purposes of this Facility Document the words and expressions used
herein, except where the context otherwise requires, will have the meaning
ascribed to them at Appendix 1 herewith. Unless the context otherwise requires,
words and expressions defined in the Transaction Documents (as defined in the
FBG Trust Deed) shall also have the same meaning in this Facility Document. To
the extent there is any inconsistency between the Transaction Documents and this
Facility Document, the provisions of the Transaction Documents shall prevail.
The terms and conditions contained herein are complementary to those detailed in
the FBG Trust Deed and therefore this Facility Document and the FBG Trust Deed
should be read contemporaneously.
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A. PARAMETERS OF THE FACILITY
Borrower: Foster's Brewing Group Limited ("Foster's") or any constituent
of the Group as agreed between Foster's and ANZ from time to
time and following satisfaction of the provisions of clause
10.2 of the FBG Trust Deed in respect of that Borrower. For
the avoidance of doubt, FBG Treasury (Aust) Limited (ABN 80
006 865 738) is agreed by ANZ as being an acceptable Borrower
under this Facility. Foster's and each Subsidiary agrees with
ANZ that in accordance with the FBG Trust Deed it is liable to
pay to ANZ any Financial Indebtedness in respect of financial
accommodation which has been provided pursuant to the
Facility, whether that financial accommodation was provided to
Foster's itself or to any other agreed individual Borrower
within the Group.
Limit: AUD 250,000,000. The total amount drawn (including the face
value of Commercial Bills or any other arrangements that
create contingent liabilities for the Lenders) is not to
exceed this Limit without ANZ's prior consent.
Term/Maturity
Date: The Facility will be provided for an initial period expiring
on 1 March 2005 (the "Maturity Date"), subject to annual
review prior to 30 November each year (the "Annual Review
Date"). At or immediately prior to each Annual Review Date,
ANZ may, on behalf of the Lenders (but without any commitment
whatsoever to do so at this time):
a) agree to extend the Facility for a further one year,
thereby postponing the Maturity Date by one year; or
b) signify its desire to cancel the Facility in which case
consequent full clearance of all Financial Indebtedness
pursuant to the Facility (and cancellation of the Limit
in force) by the then existing Maturity Date would be
required.
Effective Date: a) Subject to paragraph (b), this letter takes effect
and the parties agree to be bound by the Facility
from the date (the "Effective Date") the conditions
precedent in the Bridging Facility Agreement are
satisfied or waived by ANZ.
b) Subject to paragraph (c), this letter is not
effective if the Chief Financial Officer of Foster's
notifies ANZ that at least 50% of the shares in
Beringer have not been directly or indirectly
acquired and that Foster's will not be proceeding
with the proposed acquisition of Beringer. In these
circumstances, the existing agreement constituted by
a letter of offer dated 11 February 2000 and
acceptance by the Group and others on 28 March 2000
will apply.
c) The Establishment Fee under this letter will be paid
notwithstanding anything in paragraph (a) or (b) of this
clause.
Drawdown: The Facility is made available on a revolving basis.
Therefore, progressive drawdowns, subsequent partial/full
repayments and re-drawings under the Facility are permitted
throughout the Term. Such Drawdowns are to be subject,
where appropriate, to:
(i) two Business Days' notice in the case of Drawdowns in
AUD or, in the case of Drawdowns in other currencies,
three Business Days' notice; or
(ii) as otherwise agreed between Foster's and ANZ (on
behalf of the Lenders); and
(iii) no Event of Default or a Potential Event of Default
having occurred and remaining unremedied or occurring as
a result of such Drawdown and/or subsequent rollover.
The actual drawdown notices are to be in writing or
subsequently confirmed in writing in a format substantially
the same as the Pro-Forma Drawdown Notice attached hereto, and
once given are irrevocable, unless otherwise agreed by ANZ (on
behalf of the Lenders).
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A. PARAMETERS OF THE FACILITY (CONTD)
Repayment: All Financial Indebtedness pursuant to the Facility is to
be cleared by bullet repayment on or before the Maturity
Date in accordance with the Term/Maturity Date clause above.
Prepayment/
Cancellation: In the event that the "Project Bordeaux" transaction currently
being developed by Foster's does not proceed, the proposed AUD
100.0 million increase in the Facility will be cancelled and
the Limit reduced to AUD 150.0 million.
The undrawn portion of the Facility may be cancelled in whole,
or if in part in multiples of AUD 1.0 million, by Foster's
without penalty upon seven days' prior notice. The drawn
portion of the Facility may be prepaid and/or cancelled in
whole, or if in part in multiples of AUD 1.0 million or the
foreign currency equivalent thereof, by Foster's without
penalty upon seven days' prior notice; subject to such
cancellation only taking effect on the last day of the
Interest Period of the portion to be cancelled.
In the event that Prepayment or Cancellation of all or part of
the Cash Advance or Foreign Currency Loan components (refer
Sections B(ii) and B(iii) below) of the Facility occurs on a
date which is other than on the last day of an Interest
Period, Foster's will indemnify the appropriate Lender for any
loss of return, costs or expenses which it may incur as a
result of such prepayment.
This indemnity will be applied by the Lender charging a fee to
recompense it for any loss of return (below that originally
envisaged by ANZ) and/or any costs or expenses that it may
sustain (directly or indirectly) through the necessity to
re-advance, liquidate or re-deploy funds firmly committed to
the Facility and so prepaid. The application of such a fee
will be subject to the proviso that the Lender will have made
reasonable efforts to minimise the loss of return, costs or
expenses so sustained.
If a prepayment results in a benefit to the Lender rather than
a cost, the relevant Lender will pass the net benefit that can
be attributable to the actual prepayment to the Borrower,
although the Lender will be entitled to deduct its costs and
any taxes associated with the receipt of the benefit in order
to derive the net benefit amount that is to be passed to the
Borrower.
Amounts cancelled cannot be re-drawn within the Facility.
Security: The Facility is provided on an
unsecured basis against the Lenders' understanding that at
all times; (a), all of the obligations of Foster's and each
constituent of the Group under this Facility Document will
constitute direct and unconditional obligations of the
Group; and (b), all lenders to and creditors of every
constituent of the Group will also be unsecured (with the
exception of Permitted Security Interests) and that the
Lenders will rank pari passu with all other unsecured and
unsubordinated lenders to the Group in every respect,
particularly (but not limited to) in relation to any
distribution whatsoever in terms of the FBG Trust Deed.
The provision of any financial accommodation under the
Facility is subject to the continued compliance at all
times with this understanding and the terms and conditions
of:
i) this Facility Document;
ii) the Transaction Documents; and
iii) provision, as and when necessary, of such
supplemental and ancillary documents as the Lenders may
require to facilitate the operational requirements of
the Facility components contemplated herein or as may be
provided in the future.
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B. SPECIFIC FACILITY TERMS AND CONDITIONS
MULTI OPTION FACILITY
Limit: AUD 250,000,000.
Establishment Fee: AUD 100,000 payable on acceptance of this Offer.
Line Fee: As and from the date of acceptance of this offer,
0.20%pa (previously 0.175%pa) payable to ANZ in
Melbourne, quarterly in arrears and charged as at the
last day of February, May, August and November each
year. This Line Fee will be calculated on the quantum
of the Limit (regardless of usage) and is in addition
to the Utilisation Fee and Interest detailed
hereunder. If the Limit is reduced to AUD 150.0
million because the Project Bordeaux transaction does
not proceed, the Line Fee will revert to 0.175% pa
from the date of Cancellation.
Utilisation Fee: As and from the date of acceptance of this offer,
0.30%pa (previously 0.175%pa), payable on usage and
calculated against the; (i), face value of the
Commercial Bills accepted and payable in advance on
the Drawdown date as an acceptance fee; or (ii),
amount of the Cash Advance provided, payable in
arrears as a margin in addition to Interest on the
last day of the relevant Interest Period; or (iii),
amount of the Foreign Currency Loan provided, payable
in arrears as a margin in addition to Interest on the
relevant interest payment date. If the Limit is
reduced to AUD 150.0 million because the Project
Bordeaux transaction does not proceed, the Margin
will revert to 0.175% pa from the beginning of the
next Interest Period following the Cancellation.
Apportionment: The Borrowers acknowledge that all fees and charges
payable by the Borrowers under this Facility must be
paid to ANZ in the manner directed by it and will be
apportioned between the Lenders in the manner
described in this Offer or, if not addressed herein,
as determined by ANZ.
Change in Credit Rating
of Foster's: If the long term credit rating attributable to
Foster's Brewing Group Limited or its guaranteed
Subsidiaries as published from time to time by
Standard and Poors falls below BBB+, or is withdrawn
altogether at any time after the date of this Offer,
then ANZ (on behalf of the Lenders) may enter into
good faith discussions with Foster's in relation to
the fees and charges considered to be appropriate in
the circumstances. In the event that a mutually
acceptable solution has not been reached within
thirty days of the negotiations commencing then ANZ
(on behalf of the Lenders) may, by written notice to
Foster's amend the fees and charges specified above.
The adjusted fees and charges will apply from the
date specified by ANZ in the written notice to
Foster's.
Nature of Facilities: The Facility is interchangeable between the financial
products which the Lenders may provide from time to
time to meet the Group's ongoing corporate funding
requirements, including (but not limited to) the
following:
(I) COMMERCIAL BILL ACCEPTANCE/DISCOUNT ALTERNATIVE
Tenor: Commercial Bills may be drawn for tenors from one to
six months, with the face value of each Commercial
Bill ranging from AUD 500,000 to AUD 1,000,000 (or
other amounts outside this range as mutually agreed).
The tenor of any Commercial Bill drawn under this
alternative will constitute the Interest Period of
that Commercial Bill and no tenor shall extend beyond
the then current Maturity Date.
Discounting: The Commercial Bills will be accepted by ANZ and
discount could either be by ANZ or, if the Borrower
should so elect, market quote on the relevant
Business Day. If the Borrower elects to seek market
bids for the discount, ANZ is also to be given the
opportunity to bid.
Basis of Yield: Calculation of the discounted proceeds shall be based
on actual days elapsed over 365 days and shall be as
follows:
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Discounted = FV x 365
---------------
Proceeds 365 + (DM x R)
B. SPECIFIC FACILITY TERMS AND CONDITIONS (CONTD)
MULTI OPTION FACILITY (CONTD)
(I) COMMERCIAL BILL ACCEPTANCE/DISCOUNT ALTERNATIVE (CONTD)
Basis of Yield (cont'd): where:
"FV" is the face value of the Commercial Bill;
"DM" is the number of days to maturity of the Commercial Bill
(being the number of days from and including the issue date of
the Commercial Bill to, but excluding, the maturity date of
the Commercial Bill); and
"R" is the market quoted discount interest rate expressed
as a percentage.
Amount Payable
by ANZ on
Discount: On the Drawdown and/or Rollover Date for a Commercial
Bill discounted by ANZ, ANZ shall pay the Discounted
Proceeds (as calculated above) to the Borrower,
less; (a) the Utilisation Fee and any outstanding Line Fee;
and (b) applicable stamp duty and other taxes in respect of
the Commercial Bill.
Maturity of
Commercial Bills: Subject to the netting provisions immediately following,
on or before 11.00am (local time) on the maturity date
for each Commercial Bill, the Borrower shall pay to ANZ
an amount equal to the face value of that Commercial Bill.
Net Payments on
Maturity Dates for
Commercial Bills: Unless otherwise agreed between ANZ and Foster's, if,
on the maturity date for a Commercial Bill, ANZ is obliged to
discount one or more further Commercial Bills, ANZ or the
Borrower (as the case may be) is only obliged to pay the
difference between:
(a) the face value of the maturing Commercial Bill(s)
payable by the Borrower to ANZ on that date; and
(b) the amount payable by ANZ to the Borrower on
discounting the replacement Commercial Bill(s).
Availability: This Facility alternative is provided by ANZ and is available
only to Borrowers incorporated in Australia and may only be
drawndown in Australia.
Liability in Respect of
Commercial Bills
Discounted: As between ANZ and the Borrower, the Borrower is primarily
liable in respect of each Commercial Bill drawn by it or on
its behalf by ANZ. Accordingly the liability of the Borrower
with respect to each such Commercial Bill will not be
discharged merely because ANZ becomes the holder of that
Commercial Bill on or after its maturity and section 66 of the
Bills of Exchange Act 1909 has no force or effect as between
the Borrower and ANZ.
Indemnity: The Borrower indemnifies ANZ against, and shall pay ANZ on
demand the amount of, all loss and liability which ANZ may
incur as acceptor of each Commercial Bill issued by the
Borrower, except where there is manifest error by ANZ or where
such loss or liability may arise from the negligence, wilful
misconduct or defalcation by ANZ or its employees/officers.
The obligations of the Borrower under this indemnity are
absolute and unconditional and are not at any time affected by
set-off, deduction, counterclaim or defence, or anything
which, but for this provision, might operate to relieve the
Borrower from any of these obligations.
<PAGE>
B. SPECIFIC FACILITY TERMS AND CONDITIONS (CONTD)
MULTI OPTION FACILITY (CONTD)
(II) CASH ADVANCE ALTERNATIVE
Documentation: Before making a drawing of Commercial Bills to be accepted
and discounted by ANZ, the Borrower must execute the
following standard ANZ documents:
(i) Commercial Bills - Authority;
(ii) Power of Attorney - Commercial Bills;
Such Power of Attorney will enable ANZ, on behalf of the
Borrower, to draw, sign and present the Commercial Bills
which the Borrower has requested ANZ to accept and
discount on the Drawdown Date, so that each Commercial
Bill:
o is dated with the Drawdown Date;
o is drawn by or on behalf of the name of the
payee to be completed by ANZ;
o names ANZ as drawee and acceptor; and
o is for a face value determined by the
Borrower; and
(iii) Indemnity - Commercial Bills.
Interest Period: The Borrower can elect to drawdown or rollover different
tranches of the Cash Advance for tenors of approximately
30, 60, 90, 120, 150 or 180 days provided no tenor
shall extend beyond the then current Maturity Date.
Interest and Interest
Payment: The BBSY Bid Rate published on the date of Drawdown or
rollover for the same tenor as the tranche being drawndown or
rolled over, plus the Utilisation Fee (payable as a margin).
Interest will be payable on the last day of each Interest
Period.
Commercial Bill
Reliquification: If the Borrower provides a Drawdown Notice requesting a
Drawdown or rollover under this Cash Advance alternative of
the Facility, ANZ may, at its sole discretion, satisfy its
obligation to provide such funding by the purchasing or
endorsing of Commercial Bills. Whenever requested to do so by
ANZ, the Borrower shall draw, endorse and/or accept Commercial
Bills in the manner required by ANZ in terms of Section B(i)
herein, but so that:
(a) the Discounted Proceeds of the Commercial Bills, when
aggregated with all other drawings under the Facility
(whether by way of other discounted Commercial Bills or
by Cash Advances) shall not exceed the Limit then
current;
(b) The Borrower shall be entitled to elect tenors for
Commercial Bills equivalent to the interest periods
referred to under the heading "Interest Period" above;
and
(c) the overall cost to the Borrower shall not exceed the
cost which would have been incurred if the accommodation
had been provided by ANZ under the Cash Advance
alternative.
If ANZ exercises its prerogative to provide funding by way of
Commercial Bills in accordance with this paragraph, the
Borrower shall be in no worse position in any respect than it
would have been in if ANZ had not exercised that prerogative.
Prior to ANZ seeking to exercise such a prerogative, it shall
inform the Borrower and the Borrower will execute (subject to
its agreement) such other ancillary documentation as is
considered reasonably necessary by ANZ to facilitate the
operational requirements of such a funding option.
Availability: This Facility alternative is provided by ANZ and is
available only to Borrowers incorporated in Australia and
may only be drawndown in Australia.
<PAGE>
B. SPECIFIC FACILITY TERMS AND CONDITIONS (CONTD)
MULTI OPTION FACILITY (CONTD)
(III) FOREIGN CURRENCY LOAN ALTERNATIVE
Source of Funding: Foreign currency drawings would be funded from
the international currency markets in the major money
centres; such as New York, London, Auckland or any other
convenient location determined by ANZ and agreed by the
Borrower.
Interest Period: The Interest Periods could range from one to six months, but
in all events subject to; (a), the Term/Maturity Date
restrictions discussed at Section A herein; and (b),
availability of the currency required for the period
specified. Additionally, there shall be no more than four
Interest Periods current under this Facility component at any
one time.
Foreign currency loan interest is calculated on the basis of
a year of either 360 days (for advances denominated in USD or
EUR) or 365 days (for advances denominated in GBP or NZD) in
accordance with market practice, and the actual number of
days elapsed.
Interest Rate: The LIBOR interest rate for USD or GBP (as the case may be)
or EURIBOR for EUR or BKBM for advances in NZD, for a
tenor equivalent to the relevant Interest Period for the
value date that is the first day of that Interest Period,
plus the Utilisation Fee (payable as a margin). In the
case of advances in GBP or EUR, the Interest Rate will
also incorporate the Associated Costs Rate, such that it
will be the aggregate of LIBOR (or EURIBOR in the case of
advances in EUR), the Utilisation Fee and the Associated
Costs Rate. Interest will be payable on the last day of
each Interest Period.
Drawdowns: Drawdowns are to be for minimum amounts of:
(a) USD 1,000,000 for drawings in USD;
(b) GBP 1,000,000 for drawings in GBP;
(c) NZD 1,000,000 for drawings in NZD; or
(d) EUR 1,000,000 for drawings in Euros.
Availability: This Facility alternative is provided by ANZ (except for
New Zealand Dollars drawings which are provided by ANZ(NZ)
and is available to all Borrowers but may only be drawn
down:
(a) in Australia by FBG Treasury (Aust,) Limited in USD;
(b) in the United States of America by FBG Treasury USA
Inc in USD;
(c) in New Zealand by FBG Treasury (NZ) Limited in NZD;
(d) in England by either:
(i) FBG Treasury (U.K.) plc in GBP; or
(ii) FBG Treasury Europe B.V. in EUR.
Selection of
Currencies: Subject at all times to the currency nominated by the
Borrower being acceptable and available to ANZ and/or ANZ(NZ)
(as the case may be), this Facility component can be drawn
in, or renewed at the end of an Interest Period, in any of
the foreign currencies noted under "Availability" immediately
above.
Calculation of
Financial
Indebtedness: To determine the Financial Indebtedness under
this Facility component, ANZ may (on behalf of the Lenders):
(i), determine the prevailing market rates to convert foreign
currency amounts to the equivalent amounts in AUD; or (ii),
adjust the face value of the obligation under each transaction
under this Facility component by a multiplier (determined by
ANZ in line with the normal practices of the Lenders).
<PAGE>
If a movement in foreign exchange rates causes the Financial
Indebtedness under the Facility to exceed the Facility Limit,
Foster's or the relevant constituent of the Group undertakes
to initiate appropriate actions to reduce such Financial
Indebtedness to within the Limit within thirty days of being
requested to do so by ANZ.
C. LEGAL AND GENERAL CRITERIA
Reserve Requirements/
Increased Costs: If, as a result of;
(i) the introduction of, any amendment to, or any change
in the official interpretation or application of, any
law or official directive; or
(ii) compliance by the Lenders with any law or official
directive from any agency or regulatory authority of any
government (wheresoever situated), whether or not having
the force of law;
ANZ determines in good faith that:
(iii) the cost of; (a), the Lenders maintaining their
commitments; and/or (b), providing or continuing
financial accommodation under the Facility is increased;
or
(iv) any amount received or receivable and/or the effective
return on any financial accommodation under the Facility
is reduced (except on account of taxes on the Lenders
overall net income); or
(v) either or both of the Lenders must make a payment for
(except on account of taxes on the overall net income of
the Lenders) or forgo interest or other income on any
financial accommodation (calculated by reference to an
amount received or receivable pursuant to the Facility),
then the Borrower will pay to ANZ on behalf of the Lenders
additional amounts which are certified by ANZ under advice to
the Borrower (with such advice to include details and the
method of calculation but without requiring ANZ to disclose
commercially sensitive information), as being necessary to
compensate the Lenders for the increased cost, reduction of
return or payment/forgoing of interest or other income arising
from the foregoing events.
Illegality: If, in the opinion of ANZ, a new or changed law or a directive
or request (whether or not having the force of law) by any
government or governmental agency, or any amendment to or
change in the interpretation or application of such a law or
directive, renders it illegal in any jurisdiction, or
otherwise impossible, for either or both of the Lenders to
continue to make the Facility available then, for the purposes
of this general condition, ANZ may give notice to Foster's
stating that this has happened. As soon as ANZ gives such
notice, the Lenders' obligation to make the Facility available
terminates and the Financial Indebtedness pursuant to this
Facility Document is immediately due and payable. The amount
required to be paid by the Borrower shall (in the case of
Commercial Bills) be determined by calculating the present
value on the day the Financial Indebtedness becomes due and
payable of the face value of such Financial Indebtedness,
discounted at a market rate agreed between ANZ and the
Borrower appropriate for the tenor remaining to the stated
maturity. For Financial Indebtedness availed of as a Cash
Advance or a Foreign Currency Loan, the amount which will be
due and payable will be the full amount of that Financial
Indebtedness.
Exchange of
Information: The Group acknowledges that in order to ensure that the
terms and conditions of the Facility are complied with
and to ensure that the Facility Limit (which is the
maximum sum that the Lenders are jointly obliged to advance
under the Facility) is not exceeded, it will be necessary for
ANZ and ANZ(NZ) to exchange information concerning the Group
from time to time. Subject to clause 34 of the FBG Trust Deed,
the Group authorises and consents to ANZ and ANZ(NZ)
exchanging any information concerning or in any way connected
to the Group or its individual constituents amongst themselves
which ANZ or ANZ(NZ) consider necessary or desirable from time
to time.
<PAGE>
C. LEGAL AND GENERAL CRITERIA (CONTD)
Representations and Warranties: }
Undertakings: }
Events of Default: }
Guarantee: } The terms and conditions relating thereto
Accession of Creditors: } under the appropriate headings in the FBG
Approved Facilities: } Trust Deed shall apply in full force and
Ranking and Distribution: } effect as they relate to the Facility and
Payments Generally: } this Facility Document.
Expenses and Fees: }
Stamp Duties: }
Financial Undertakings: }
Governing Law: }
Lenders' Representation
and Warranty: Each Lender represents and warrants to each of the Borrowers
and Foster's 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.
Indemnity: Foster's and each of the Borrowers indemnifies the Lenders on
demand against any claim, loss, liability, cost and expense
that may be incurred or sustained by any of the Lenders (or
any officer or employee of the Lenders) as a consequence of
the Lenders having entered into this Facility Document, having
provided the Facility or having made the commitment to provide
the Facility or the application of the proceeds of any
Drawdown under the Facility.
Borrower
Acknowledgement: No amendment to clauses 10.1(g) and (h) of the FBG Trust Deed
is permitted without the prior written consent of ANZ.
Review of Fees/
Interest Rates: Subject to the following paragraph, the total Fees/Interest
Rates structure detailed herein is subject to re-assessment
and re-negotiation at each Annual Review Date (as discussed
at Section A herein). These reviews will be undertaken by
ANZ (on behalf of the Lenders) and Foster's on a
commercially fair and reasonable basis in the light of
market conditions pertaining at the time and the ongoing
performance, financial status, etc of the Group.
If, at any time during the Term, the circumstances described
in the Reserve Requirement/Increased Costs clause (as detailed
above) are invoked or any Event of Default occurs (or any
waiver thereof is sought) in respect of this Facility
Document, and/or any other financier's agreement, then ANZ (on
behalf of the Lenders) will enter into discussions (in good
faith) with Foster's relative to the Fees/Interest Rates
structure appropriate for the circumstances. If a mutually
acceptable solution has not been reached within thirty days of
ANZ (on behalf of the Lenders) notifying Foster's of such
event or of the discussions commencing, then ANZ reserve the
right (at its sole discretion) to review and amend (if
appropriate) the Fees/Interest Rates structure immediately on
behalf of the Lenders.
Set-Off: Each constituent of the Group which is a party to this
Facility Document or the Transaction Documents acknowledges
the right of ANZ and/or ANZ(NZ) (but without any obligation on
the part of either Lender to do so):
<PAGE>
C. LEGAL AND GENERAL CRITERIA (CONTD)
(a) to apply any credit balance standing in any currency
upon any account of that constituent of the Group with
any branch of either Lender in or towards satisfaction
of any Financial Indebtedness owing by that constituent
or any other constituent of the Group under this
Facility Document to that Lender; and
(b) in the name of that constituent of the Group, or of ANZ
and/or ANZ(NZ), to do all such acts and to execute all
such documents, if any, as may be required to effect any
such application.
ANZ and/or ANZ(NZ) (as the case may be) may effect such
currency exchanges as are appropriate to implement such
set-off.
Continuing
Obligation: This Facility Document and each Transaction Document
will be a continuing obligation notwithstanding any
settlement of account, intervening payment, express or implied
revocation or any other matter or thing whatsoever until a
final discharge thereof has been given by ANZ (on behalf of
the Lenders) to Foster's.
Any settlement or discharge between ANZ (on behalf of the
Lenders), Foster's and/or any constituent of the Group will be
conditional upon any security or payment given or made by
Foster's and/or any constituent of the Group in relation to
the Financial Indebtedness not being avoided, repaid or
reduced by virtue of any provision or enactment relating to
bankruptcy, insolvency or liquidation for the time being in
force.
In the event of any such security or payment by Foster's or
the relevant constituent of the Group being so avoided, repaid
or reduced, ANZ and ANZ(NZ) will be entitled to recover the
value or amount of such security or payment avoided, repaid or
reduced from the relevant constituent of the Group
subsequently as if such settlement or discharge had not
occurred.
Certificate as to
Amounts: Certificates as to Financial Indebtedness pursuant to the
Facility given by ANZ and/or ANZ(NZ) are, in the absence of
manifest error, conclusive.
Provisions
under the FBG
Trust Deed: Foster's acknowledges and agrees that this Facility
Document is a Facility Document under the FBG Trust
Deed and ANZ and ANZ(NZ) shall each have full benefits of the
terms and conditions contained in the FBG Trust Deed
pertaining to a Creditor. To the extent there is any
inconsistency between the Transaction Documents and this
Facility Document, the provisions of the Transaction Documents
shall prevail.
Assignment: ANZ and/or ANZ(NZ) may, without being required to obtain
Foster's or the Group's consent, or to provide any prior
notice to the Group, assign, transfer, sub-participate or
otherwise dispose of or deal with all or any part of its
rights or benefit under this Facility Document to any person
(including without limitation, a trustee of a trust or a
corporate vehicle established for the purposes of
securitisation), provided that the Lender or Lenders doing so
remain the lender or lenders of record in respect of the
Facility.
ANZ and/or ANZ(NZ) may, for the purpose of this clause,
disclose to any proposed assignee, transferee, sub-participant
or any party such information in relation to this Facility
Document and the Group as that person reasonably requires
without being required to obtain the Group's consent.
In all other assignments, the provisions of clause 7 of the
FBG Trust Deed shall apply.
Notices: All notices to the Lenders (or either of them) under this
Facility Document are to be received by:
Australia and New Zealand Banking Group Limited
Institutional Banking
Level 16
<PAGE>
530 Collins Street
MELBOURNE VIC 3000
Attention: Associate Director - Food, Beverages &
Agribusiness Fax No: (61 3) 9273 1719.
D. CONCLUSION
We trust that the amended Facility arrangements detailed herein are acceptable
to the Group and are in accord with Foster's understanding thereof. Acceptance
of this Offer is to be evidenced by; (i), provision of an Approved Facility
Certificate in terms of the FBG Trust Deed; and (ii), an Authorised Officer
signing the acknowledgement at the conclusion of this letter and returning it to
ANZ. Upon receipt of the foregoing, the criteria at items (1) and (2) on page 1
hereof will come into full force and effect. We trust these advices are
sufficient for your purposes at this time, but if you require any additional
information or have any queries, please do not hesitate to contact me on 9273
1489 at any time.
Yours sincerely
/s/ EDWARD A. HORE
EDWARD A. HORE
ASSOCIATE DIRECTOR, FOOD, BEVERAGES & AGRIBUSINESS
FOR AND ON BEHALF OF
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED AND
ANZ BANKING GROUP (NEW ZEALAND) LIMITED.
ACKNOWLEDGED FOR AND ON BEHALF OF
Foster's Brewing Group Limited and each of its Subsidiaries
By /s/ DOMENIC PANACCIO
.................................................(Signature)
DOMENIC PANACCIO
...................................................(Name and Title)
who confirms the availability of appropriate authorities to accept this Offer on
behalf of Foster's Brewing Group Limited and its Subsidiaries.
Date: 29 AUGUST
...................................................2000
<PAGE>
FOSTER'S BREWING GROUP LIMITED AND ITS SUBSIDIARIES GROUP APPENDIX 1
FACILITY DOCUMENT DATED 31 AUGUST, 2000
DEFINITIONS AND LEGEND
For the purposes of this Facility Document, the words and expressions:
(i) as defined in (and the terms, conditions, etc detailed in) the FBG Trust
Deed will have the same meaning in this Facility Document; and
(ii) as defined hereunder, where the context or subject matter requires, will
have the following meaning:-
ANZ: Australia and New Zealand Banking Group Limited ABN 11 005 357
522.
ANZ(NZ): ANZ Banking Group (NZ) Limited, a New Zealand incorporated,
wholly owned Subsidiary of ANZ.
Associated Costs Rate: The UK Mandatory Cost for an advance is the rate
determined by the ANZ London and calculated in accordance
with the following formula:
In relation to an advance denominated in GBP:
B * Y + S(Y - Z) + F *0.01 (expressed as a percentage
-------------------------- per annum).
100 - (B + S)
In relation to an advance denominated in any other currency:
F * 0.01 (expressed as a percentage per annum)
--------
300
where:
B is the percentage of the Lender's Eligible Liabilities
(in excess of any stated minimum) which the Bank of
England requires the Lender to hold in a non-interest
bearing deposit account in accordance with its cash ratio
requirements;
Y is the rate at which GBP deposits are offered by the
Lender to leading banks in the London interbank market at
or about 11:00 am on that day for the Relevant Period;
S is the percentage of the Lender's Eligible Liabilities
which the Bank of England requires the Lender to place as
a special deposit;
Z is the interest rate per annum allowed by the Bank of
England on special deposits;
F is the charge payable by the Lender to the Financial
Services Authority under the Fees Regulations (but, for
this purpose, ignoring any minimum fee required pursuant
to the Fee Regulations) expressed in pounds per GBP 1.0
million of the fee base of the Lender.
For the purposes of calculating the Associated Costs Rate:
1. "Eligible Liabilities" and "Special Deposits" shall
have the meanings ascribed to them at the time of
application of the above formula by the Bank of
England;
2. "Fee Base" has the meaning given to it in the Fees
Regulations;
3. "Fees Regulations" means the Financial Services
Banking Supervision (Fees) Regulations 2000 or such
other regulations governing the payment of fees for
banking supervision;
4. "Relevant Period" in relation to each Term or
Interest Period means:
(a) if it is three months or less, that Term or
Interest Period; or
(b) if it is more than three months, three months;
<PAGE>
FOSTER'S BREWING GROUP LIMITED AND ITS SUBSIDIARIES GROUP APPENDIX 1
FACILITY DOCUMENT DATED 31 AUGUST, 2000
DEFINITIONS AND LEGEND (CONT'D)
Associated Costs Rate (cont'd)
5. In the application of the formula, B, Y, S and Z are
included as figures and not as percentages, eg: of B
equals 0-.5% and Y equals 15%, "B * Y" is calculated
as "0.5 * 15";
6. (i) The formula is applied on the first day of each
Relevant Period comprised in the relevant Term or
Interest Period;
(iii) Each rate calculated in accordance with the
formula is, if necessary, rounded upwards to
four decimal places; and
7. If the Lender determines, acting reasonably, that a
change in circumstances has rendered, or will render, the
formula inappropriate the Lender shall notify the
Borrower of the manner in which the UK Mandatory Cost
will subsequently be calculated. The manner of
calculations so notified by the Lender shall, in the
absence of manifest error, be binding on the Borrower.
AUD: means the lawful currency for the time being of Australia.
BBSY Bid: in relation to any advance or Commercial Bills in AUD, means
the "bid" rate (expressed as a percentage per annum) shown at
approximately 10:30am (Melbourne time) on page "BBSY" of the
Reuters Monitor System (or any such page which can reasonably
be considered as its replacement) on the first day of such
Interest Period for Bills of Exchange with a term equal to (or
approximately equal to) that Interest Period, or if such rate
is not available for any reason, the arithmetic mean (rounded
upwards if necessary to four decimal places) of the rates
quoted by ANZ, Commonwealth Bank of Australia, National
Australia Bank Limited and Westpac Banking Corporation for the
purchase of a Bill of Exchange from the Borrower accepted by
that particular bank for a similar amount and tenor equal to
or approximately equal to that Interest Period, or such other
rate as the Borrower and ANZ may agree.
BKBM: in relation to any advance in NZD, means the "bid" rate
(expressed as a percentage per annum) shown at approximately
10:30am (Auckland time) on page "BKBM" of the Reuters Monitor
System (or any such page which can reasonably be considered as
its replacement) on the first day of such Interest Period for
bills of exchange in New Zealand with a term equal to (or
approximately equal to) that Interest Period, or if such rate
is not available for any reason, the arithmetic mean (rounded
upwards if necessary to four decimal places) of the rates
quoted by ANZ(NZ), Bank of New Zealand Limited and Westpac
Trust Bank for the purchase of a bill of exchange from the
Borrower accepted by that particular bank for a similar amount
and tenor equal to or approximately equal to that Interest
Period, or such other rate as the Borrower and ANZ(NZ) may
agree.
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.
Commercial Bills and:
Bills of Exchange: has the meaning ascribed to the expression "Bill
of Exchange" by the Bills of Exchange Act 1909 and shall mean
any Commercial Bill drawn and accepted pursuant to this
Facility Document. Any reference in this Facility Document to
the drawing, accepting, or other dealings of or with a
Commercial Bill shall have the meaning ascribed thereto in
that Act.
Euro or EUR: means the lawful currency of the member states of the European
Union that adopt the single currency in accordance with the
Treaty establishing the European Community, as amended by the
Treaty on European Union.
<PAGE>
FOSTER'S BREWING GROUP LIMITED AND ITS SUBSIDIARIES GROUP APPENDIX 1
FACILITY DOCUMENT DATED 31 AUGUST, 2000
DEFINITIONS AND LEGEND (CONT'D)
EURIBOR: in relation to any advance in EUR and an Interest Period
relating thereto, means, on any day, the rate per annum for
EUR which appears on the EURIBOR01 page of the Reuters Monitor
System (or any page which can reasonably be considered as its
replacement) for a period approximately equal to such Interest
Period at or about 11:00am (London time) on the first day of
that Interest Period or, if such rate is not available for any
reason, the arithmetic mean (rounded upwards if necessary to
four decimal places) of the rates quoted by four banks (as
agreed by ANZ London and the Borrower) to leading banks in the
London interbank market for the offering of deposits in the
currency of the advance for a similar amount and for the same
tenor as the Interest Period, with such quotes being obtained
at or about 11:00am (London time)on the first day of the
Interest Period, or such other rate as the Borrower and ANZ
may agree. For the avoidance of doubt, the EURIBOR rates
obtained and the interest calculations pertaining thereto in
respect of EUR will be based on a 360 day year
Foster's: Foster's Brewing Group Limited ABN 49 007 620 886 acting for
itself and/or any constituent of the Group, either
individually or collectively and whether as principal or
surety.
FBG Trust Deed The FBG Group Financing Trust Deed dated 21 February 1993 (as
amended by the First Supplementary Deed dated 14 August 1996;
the Second Supplementary Deed dated 30 May 1997; and the Third
Supplementary Deed dated 13 October 1999) between Foster's
Brewing Group Limited, FBG Treasury (Aust.) Limited, FBG
Treasury (U.K.) plc, FBG Canadian Treasury Inc; FBG Treasury
USA Inc (by an Accession Deed dated 15 September 1998), FBG
Treasury Europe B.V. (by an Accession Deed dated 10 May 1999),
FBG Treasury (NZ) Limited (by an Accession Deed dated 23
December 1999) and AXA Trustees Limited (formerly known as
National Mutual Trustees Limited) as agent and trustee, and as
amended, novated or replaced.
GBP: means the lawful currency for the time being of Great Britain.
Group: Foster's and its Subsidiaries (including each constituent
thereof, individually or collectively and whether as principal
or surety).
Interest Period: Those periods applicable to the individual drawdowns,
rollovers and/or interest rate settings of any tranche under
any Facility component as may be agreed between ANZ (on behalf
of the Lenders) and the relevant constituent of the Group from
time to time.
Lenders: ANZ and ANZ(NZ).
LIBOR: in relation to any advance in USD or GBP and an Interest
Period relating thereto, means, on any day, the rate per annum
for USD or GBP as the case may be which appear on the LIBOR 01
page of the Reuters Monitor System (or any page which can
reasonably be considered as its replacement) for a period
approximately equal to such Interest Period at or about
11:00am (London time) on the first day of that Interest Period
(in the case of an advance denominated in GBP) or at or about
11:00am (London time) two Business Days before the
commencement of such Interest Period (in the case of advances
denominated in USD) or, if such rate is not available for any
reason, the arithmetic mean (rounded upwards if necessary to
four decimal places) of the rates quoted by four banks (as
agreed by ANZ London and the Borrower) to leading banks in the
London interbank market for the offering of deposits in the
currency of the advance for a similar amount and for the same
tenor as the Interest Period, with such quotes being obtained
at or about 11:00am
<PAGE>
FOSTER'S BREWING GROUP LIMITED AND ITS SUBSIDIARIES GROUP APPENDIX 1
FACILITY DOCUMENT DATED 31 AUGUST, 2000
DEFINITIONS AND LEGEND (CONT'D)
LIBOR (cont'd): (London time) on the first day of the Interest Period (in the
case of advances in GBP) or at or about 11:00am (London time)
two Business Days before the commencement of such Interest
Period in the case of an advance denominated in USD, or
such other rate as the Borrower and ANZ may agree. For the
avoidance of doubt, the LIBOR rates obtained and the
interest calculations pertaining thereto in respect of USD
will be based on a 360 day year, whilst the LIBOR rates and
interest calculations relating to advances in GBP will be
based on a 365 day year.
NZD: means the lawful currency for the time being of New Zealand.
Regulation U: means the Regulation U of the Board of Governors of the US
Federal Reserve System, in effect from time to time.
Subsidiary: As defined in the FBG Trust Deed and includes any "constituent
of the Group" as that term is used in this Offer.
USD: means the lawful currency for the time being of the United
States of America.
INTERPRETATION
In this Facility Document (or any other supporting documentation), unless the
context otherwise requires:
o expressions defined or explained, have the same meaning throughout;
o a reference to any legislation or legislative provision includes any
statutory modification or re-enactment of, or legislative provision
substituted for, and any subordinate legislation under, that legislation
or legislative provision;
o a reference to any agreement or document is to that agreement or document
(and, where applicable, any of its provisions) as amended, novated,
supplemented or replaced from time to time; and
o a reference to any party to this Facility Document (or any other
supporting documentation) includes that party's substitutes, successors
and permitted assigns.
o for the purposes of this Facility Document the interpretation of any
matter of a financial nature shall be (unless otherwise specified herein
or subsequently agreed in writing) in accordance with the provisions of
the Corporations Law and the accounting concepts, standards and disclosure
requirements of the Australian Accounting bodies consistently applied.
<PAGE>
FOSTER'S BREWING GROUP LIMITED AND ITS SUBSIDIARIES GROUP ATTACHMENT 1
FACILITY DOCUMENT DATED 31 AUGUST, 2000
APPROVED FACILITY CERTIFICATE
TO: Australia and New Zealand Banking Group Limited
C.C. AXA 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 (as amended by the First
Supplementary Deed dated 14 August 1996; the Second Supplementary Deed dated 30
May 1997 and the Third Supplementary Deed dated 13 October 1999) between
Foster's Brewing Group Limited, FBG Treasury (Aust.) Limited, FBG Treasury (UK)
plc, FBG Canadian Treasury Inc, FBG Treasury USA Inc (by an Accession Deed dated
15 September 1998), FBG Treasury Europe B.V. (by an Accession Deed dated 10 May
1999), FBG Treasury (NZ) Limited (by an Accession Deed dated 23 December 1999)
and AXA Trustees Limited (formerly known as National Mutual Trustees Limited.
Foster's Brewing Group Limited hereby confirms its approval of each 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 : No.
NAME OF CREDITOR IN : Australia and New Zealand Banking Group
RELATION TO THE FACILITY Limited and ANZ Banking Group (New Zealand)
Limited.
DESCRIPTION OF FACILITY : Facility Document dated 31 August 2000 for a
DOCUMENT Multi-Option Facility.
LIMIT UNDER THAT FACILITY : AUD 250,000,000.
NAME OF THE BORROWERS UNDER : FBG Treasury (Aust) Limited ACN 006 865 738;
THE FACILITY FBG Treasury (UK) plc;
FBG Treasury USA Inc; FBG Treasury Europe B.V.;
and FBG Treasury (NZ) Limited.
REPRESENTATIVE FOR THE Associate Director - Food, Beverages &
CREDITOR: Agribusiness
ANZ Institutional Banking
Melbourne.
The address for service of notices and for the purposes of the Register in
relation to Australia and New Zealand Banking Group Limited and ANZ Banking
Group (New Zealand) Limited is as follows:
Level 16, Tel: (03) 9273 1489
530 Collins Street, Fax: (03) 9273 1719
Melbourne, Victoria
Dated this ............................. day of ......................... 2000
FOSTER'S BREWING GROUP LIMITED
BY:
............................................................................
Authorised Officer
<PAGE>
FOSTER'S BREWING GROUP LIMITED AND ITS SUBSIDIARIES GROUP ATTACHMENT 2
FACILITY DOCUMENT DATED 31 AUGUST, 2000
PRO-FORMA DRAWDOWN NOTICE
[ Letterhead of the agreed Borrower ]
[ Date ]
The Associate Director - Food, Beverages & Agribusiness
Australia and New Zealand Banking Group Limited
Institutional Banking
Level 16
530 Collins Street
Melbourne Vic 3000
Dear Sir
AUD 250.0 MILLION MULTI-OPTION FACILITY
We refer to the Facility Document dated 31 August 2000 between Foster's Brewing
Group Limited (and others) and yourselves.
Words and expressions defined in the Facility Agreement have the same meanings
in this Drawdown Notice.
We request the following advance under the Facility:
(a) the amount of the advance is AUD [................] (OR A SPECIFIED
FOREIGN CURRENCY) ;
(b) the Drawdown date for the Advance is [ ];
(c) the Interest Period for the advance is [............];
(d) the advance is to be made available by way of [COMMERCIAL BILLS / CASH
ADVANCE / FOREIGN CURRENCY LOAN];
(e) the interest rate applicable to the advance will be agreed between
ourselves on the Drawdown Date prior to the Drawdown being made; and
(f) the proceeds of the advance are to be credited to account number
[...............] at [ BANK AND BRANCH ADDRESS ].
On its maturity, the advance will be repaid by the Borrower unless a further
Drawdown Notice has been provided to rollover the advance for a further Interest
Period.
We confirm that:
(i) all representations and warranties made by ourselves in the Transaction
Documents are true and correct as at the date of this Drawdown Notice as
if repeated by reference to facts and circumstances as at the date of this
Drawdown Notice; and
(ii) no Event of Default or Potential Event of Default has occurred, or will
occur as a consequence of issuing this Drawdown Notice, and is continuing
unremedied.
Signed for and on behalf of the Borrower
[ Name of Borrower ] and FOSTER'S BREWING GROUP LIMITED
by
...............................................................
Authorised Officer
