Exhibit 99(b)(11)
29 August 2000
TO: Xxxxxx'x Brewing Group Limited (ABN 49 000 000 000)
00 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxx XXX 0000
Attention: Vice President, Treasury
AND TO: The Borrowers
Dear Sir
Following our recent discussions we wish to amend the facility agreement (as
amended) dated 27 February 1991 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
1.1 The Facility Agreement is amended as follows.
(a) The Recital A, the reference to A$300,000,000 is replaced with
A$500,000,000.
(b) In Clause 1.1, in the definition of COMMITMENT reference to
`A$300,000,000' is replaced with `A$500,000,000'.
(c) In Clause 1.1, in the definition of REPAYMENT DATE the reference to `31
December 2004' is replaced with `30 September 2005'.
(d) 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., Xxxxxx'x Brewing Group Limited, the
Agent and the Participants as defined under that agreement."
(e) 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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(f) In Clause 20.4, delete the word, "The" at the beginning of the
paragraph and replace it with the words, "Subject to Clause 35(b),
the".
(g) In Clause 32(a) (Acknowledgment by Borrowers and Xxxxxx'x Brewing
Group) after the word, `undertaking', insert the words, "but
excluding the representations in Clause 34".
(h) A new Clause 34 (Lender and BNZ Representations) inserted as follows:
"The Lender and BNZ each represents and warrants to each of
the Borrowers and Xxxxxx'x 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."
(i) A new Clause 35 (Amendments) inserted as follows:
(i)"(a)Each Borrower irrevocably authorises Xxxxxx'x Brewing Group to
agree with the Lender or BNZ 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 Xxxxxx'x Brewing Group as if it were
party to the relevant agreement 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."
1.2 The amount of the increase in Commitment effected by this letter may
only be drawn by Treasury USA and such of the other Borrowers in
respect of which 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 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 Xxxxxx'x 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
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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
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) Xxx 0000.
2. FEES
2.1 The following establishment fees are payable on execution of this
letter:
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(a) 0.05% on the existing AUD 300,000,000 facility (ie, A$150,000); and
(b) 0.25% on the increased Commitment of AUD 200,000,000 intended to be
effected by this letter.
Subject to clause 3.3(b) of this letter, the establishment fees are
non-refundable.
2.2 From and including the Effective Date, the Margin will be increased to
0.375% per annum for each Funding Period of a Segment under any
Facility that commences on or after the Effective Date.
2.3 From and including the Effective Date, a facility fee accrues at 0.275%
per annum on the maximum amount of the Commitment in each calender
quarter in which the facility fee is calculated. The facility fee is
calculated on the actual mumber of days elapsed and on the basis of a
year of 365 days. The accrued facility fee must be paid by the
Borrowers in A$ on the last Business Day of each calendar quarter.
3. EFFECTIVE DATE
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 and the Lender has received each of
the following items in form and substance satisfactory to it:
(a) legal opinion from Mallesons Xxxxxxx Xxxxxx, Australian legal
advisers to the Lender; and
(b) legal opinion of Xxxxx Day Xxxxxx & Xxxxx, legal advisers to
Treasury USA and Xxxxxx'x 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(i)(i)) is not effective if the 3.2 Chief
Financial Officer of Xxxxxx'x Brewing Group notifies the Lender
that at least 50% of the shares in Bordeaux have not been directly or
indirectly acquired and that Xxxxxx'x Brewing Group will not be
proceeding with the proposed acquisition of Bordeaux.
3.3 Notwithstanding anything in this clause 3:
(a) clause 1.1(i)(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 effect with respect to a Borrower other than
Treasury USA upon the Lender 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
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(b) the Lender is entitled to retain for its own account 50% of the
establishment fee paid under clause 2, but the remaining portion
of that fee which has been paid under that clause must be refunded
by the Lender.
4. REMAINING PROVISIONS UNAFFECTED
Except as specifically amended by this letter, all terms and conditions
of the Facility Agreement remain in full force and effect. With effect
from the Effective Date (as defined in clause 3), the Facility
Agreement as amended by this letter is to be read as a single
integrated document incorporating the amendments effected by this
letter.
5. COUNTERPARTS
The agreement contained in this letter may be accepted by any one of
the Borrowers in any number of counterpart letters. All counterpart
letters will be taken to constitute one instrument.
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Yours faithfully
SIGNED for and on behalf of )
NATIONAL AUSTRALIA )
BANK LIMITED (ABN 12 004 044 937)
/s/ Xxxxx Xxxxx
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Signature
Xxxxx Xxxxx
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Print Name
SIGNED for and on behalf of )
BANK OF NEW ZEALAND )
/s/ Xxxxxxx Xxxxx Xxxx /s/ Xxxxxxx Xxx Xxxxxxxx
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Signature
Xxxxxxx Xxxxx Xxxx Xxxxxxx Xxx Xxxxxxxx
---------------------------------- ----------------------------------
Print Name
SIGNED FOR AND ON BEHALF OF )
XXXXXX'X BREWING )
GROUP LIMITED (ABN 49 )
000 000 000), FBG TREASURY )
(AUST.) LIMITED (ABN 80 )
006 865 738), FBG TREASURY )
(UK) PLC, FBG TREASURY )
(EUROPE) B.V, FBG )
TREASURY (NZ) LIMITED,
FBG TREASURY (USA) INC
/s/ Xxxxxxx Xxxxxxxx
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Signature
Xxxxxxx Xxxxxxxx
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Print Name
DATED: 29 August 2000
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