<PAGE>
LOAN AGREEMENT
-------------------------------------------------------------------
FBG TREASURY (USA) INC.
FOSTER'S BREWING GROUP LIMITED
UBS AG, STAMFORD BRANCH
ARTHUR ROBINSON & HEDDERWICKS
Stock Exchange Centre
530 Collins Street
Melbourne 3000 Australia
Tel 61 3 9614 1011
Fax 61 3 9614 4661
(C)Arthur Robinson & Hedderwicks 2000
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 4
1.3 Trust Deed 4
1.4 Repayment and prepayment 4
1.5 Principal 4
2. COMMITMENT 5
3. ADVANCE 5
3.1 Drawdown Notice 5
3.2 Principal amount of Advance 5
3.3 Advance of Segment 5
4. CANCELLATION OF COMMITMENT 5
4.1 Cancellation during Availability Period 5
4.2 At end of Availability Period 5
5. PURPOSE 6
6. REVIEW 6
7. CONDITIONS PRECEDENT 6
7.1 Conditions precedent to drawing 6
7.2 Conditions precedent to each Segment 7
8. SELECTION OF FUNDING PERIODS 8
9. INTEREST 8
9.1 Interest Rate and Notification 8
9.2 Basis of calculation of Interest 8
10. REPAYMENT 9
10.1 Repayment 9
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
10.2 Netting Off 9
10.3 Final Repayment 9
11. PREPAYMENTS 9
11.1 Voluntary prepayments 9
11.2 Special prepayments 9
11.3 Interest, break and other costs 10
11.4 Limitation on prepayments 10
12. PAYMENTS AND TAXATION 10
12.1 Time and place 10
12.2 No deduction 10
12.3 Payment to be made on Business Day 10
12.4 Appropriation where insufficient moneys available 10
12.5 Additional payments 10
12.6 Survival of obligations 11
12.7 Reimbursement 11
13. CHANGES IN LAW 12
13.1 Increased costs 12
13.2 Minimisation 13
13.3 Survival of obligations 13
13.4 Illegality 13
14. REPRESENTATIONS, WARRANTIES, COVENANTS AND EVENTS OF DEFAULT 14
14.1 Representations and warranties 14
14.2 Lender representation and warranty 14
14.3 Trust Deed Covenants 14
14.4 Events of Default 15
15. INTEREST ON OVERDUE AMOUNTS 15
15.1 Default interest 15
15.2 Rate 15
15.3 Basis of calculation 15
15.4 Capitalisation 16
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
16. FEES 16
17. INDEMNITIES 16
17.1 Indemnity 16
17.2 Nature of Indemnity 16
18. CURRENCY INDEMNITY 17
18.1 General 17
18.2 Liquidation 17
19. CONTROL ACCOUNTS 18
20. EXPENSES 18
21. STAMP DUTIES 18
22. SET-OFF 18
22.1 Set-off 18
22.2 Currency Exchange 19
23. WAIVERS, REMEDIES CUMULATIVE 19
24. SEVERABILITY OF PROVISIONS 19
25. MORATORIUM LEGISLATION 19
26. SURVIVAL OF REPRESENTATIONS 19
27. ASSIGNMENTS 20
27.1 Assignment by Borrower and Foster's Brewing Group 20
27.2 Assignment by Lender 20
27.3 Disclosure 20
27.4 Change of Lending Office 20
27.5 No increased costs 20
28. NOTICES 21
28.1 Notices 21
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
28.2 To Borrower or Foster's Brewing Group 21
29. AUTHORISED OFFICERS 21
30. GOVERNING LAW AND JURISDICTION 21
31. COUNTERPARTS 22
32. ACKNOWLEDGEMENT BY BORROWER AND FOSTER'S BREWING GROUP 22
33. GST 22
34. ATTORNEYS 23
35. AMENDMENTS 23
SCHEDULE 24
Particulars of Parties 24
ANNEXURE A 27
Drawdown notice 27
ANNEXURE B 28
Verification Certificate 28
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
DATE
-------------
PARTIES
-------------
1. FBG TREASURY (USA) INC., of Suite 200, 103 Foulk Road, Wilmington,
Delaware USA (the BORROWER).
2. FOSTER'S BREWING GROUP LIMITED (ABN 49 007 620 886) incorporated in
South Australia of 77 Southbank Boulevard, Southbank, Victoria
(FOSTER'S BREWING GROUP).
3. UBS AG, STAMFORD BRANCH of 667 Washington Boulevard, Stamford, CT
06902, USA (the LENDER).
RECITAL
-------------
A. The Borrower and Foster's Brewing Group have requested the
Lender to provide the Borrower with a facility under which
financial accommodation of up to a maximum amount of
US$125,000,000 may be made available to the Borrower.
B. The Borrower and Foster's Brewing Group are parties to the FBG
Group Financing Trust Deed dated 21 February 1993 (as amended)
(the TRUST DEED) which will, when the facility provided under
this Agreement becomes an Approved Facility under the Trust
Deed, set out certain of the terms and conditions which apply to
any financial accommodation which may be made available to the
Borrower under this Agreement.
--------------------------------------------------------------------------------
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
--------------------------------------------------------------------------------
1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
AVAILABILITY PERIOD means the period commencing on the date of this
Agreement and expiring on the Repayment Date or, if earlier, the date
on which the Commitment is cancelled.
BRIDGING FACILITY AGREEMENT means the Bridging Facility Agreement dated
on or about the date of this Agreement between the Borrower, Foster's
Brewing Group, the Lender and others.
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
BERINGER means Beringer Wine Estates Holdings Inc.
BUSINESS DAY means a weekday on which:
(a) for the purpose of determining LIBOR, the relevant financial
markets are open in London;
(b) (except for the purpose of determining LIBOR) banks are open
in Melbourne; and
(c) in the case of determining the length of a Funding Period or
where a payment in US$ is to be made, banks are open in
Melbourne and New York City.
COMMITMENT means US$125,000,000 as reduced or cancelled under this
Agreement (or such other amount as Foster's Brewing Group and the
Lender may agree).
DRAWDOWN DATE means the date on which any Segment is or is to be drawn.
DRAWDOWN NOTICE means a notice under Clause 3.1.
EXCHANGEABLE BOND ISSUE means the bonds issued or to be issued by a
subsidiary of Foster's Brewing Group of an aggregate face amount of
US$400,000,000 upon the security of a subordinated guarantee from
Foster's Brewing Group.
EXCLUDED TAX means:
(a) a Tax imposed by a jurisdiction on the Lender or its business
as a consequence of the Lender being a resident of or
organised or doing business in that jurisdiction but not a
Tax:
(i) that is calculated on or by reference to the gross
amount of a payment derived by the Lender under this
Agreement or another document referred to in this
Agreement (without the allowance of a deduction); or
(ii) that is imposed as a result of the Lender being
considered a resident of that jurisdiction or
organised or doing business in that jurisdiction
solely as a result of it being a party to this
Agreement or a transaction contemplated by this
Agreement; and
(b) any other Tax to the extent imposed, or imposed at a higher
rate, by a Governmental Agency upon or after any failure by an
Indemnified Party to file, furnish, deliver or otherwise
provide any forms, documents or other information to the
Governmental Agency or the Borrower or Foster's Brewing Group
or any other Guarantor within the prescribed time period and
in due form if, had there been no such failure, such Tax would
not have been imposed or would have been imposed at a lower
rate.
FEE LETTER means the letter from the Lender to Foster's Brewing Group
referred to in Clause 16.
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
FUNDING PERIOD means a period for the fixing of interest rates for, and
the funding of, a Segment. That period commences on the Drawdown Date
of that Segment and has a duration selected under Clause 7.
GST has the meaning given in the A NEW TAX SYSTEM (GOODS AND SERVICES
TAX) ACT 1999.
LENDING OFFICE means the office of the Lender so designated in the
First Schedule or another branch, office or agency designated by it as
a Lending Office by notice to Foster's Brewing Group.
LIBOR in relation to a Funding Period for a Segment means:
(a) the rate determined by the Lender to be the rate displayed on
the Reuters screen page LIBOR01 for a term equivalent to that
Funding Period for the value date which is the first day of
that Funding Period in respect of the currency of the relevant
segment;
(b) where in the opinion of the Lender, there is no or is no
longer a Reuters screen page appropriate for the relevant
currency, the Lender may specify another publicly available
page and the rate will be determined from that page in the
same manner; or
(c) if:
(i) for any reason there are no rates displayed for a
term equivalent to that Funding Period for the
currency of the relevant Segment; or
(ii) the basis on which those rates are displayed is
changed and in the opinion of the Lender (as the case
may be), those rates cease to reflect the Lender's
cost of funding to the same extent as at the date of
this Agreement,
then LIBOR will be the rate determined by the Lender to be the
arithmetic mean of the rates quoted to it by three leading
banks selected by it in the London Interbank Market at or
about 11.00am (London time) two Business Days before that
Funding Period for the making of deposits with the Lender in
the currency of the relevant Segment and for a term comparable
to that Funding Period.
Each arithmetic mean will be rounded up, if necessary, to a maximum of
four decimal places.
MARGIN means in respect of a Segment, the amount percent per annum set
out in the Fee Letter.
PRINCIPAL OUTSTANDING means the aggregate principal amount of all
outstanding Segments.
REGULATION U means Regulation U of the Board of Governors of the US
Federal Reserve System, in effect from time to time.
REPAYMENT DATE means 30 September 2005 or such later date as Foster's
Brewing Group and the Lender may agree in writing.
SAME DAY FUNDS means US dollar funds settled through the New York
Clearing House Interbank Payments System (or another manner of payment
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
in US dollars specified by the Lender as being customary for the
settlement of international transactions of the type contemplated by
this Agreement).
SEGMENT means each portion of the amount advanced or provided or, as
the context may require, to be advanced or provided, to the Borrower
under this Agreement which has the same Funding Period.
TRUSTEE means AXA Trustees Limited or any other person appointed as
trustee under the Trust Deed.
UNDRAWN COMMITMENT means the Commitment less the aggregate Original
Dollar Amount of all outstanding Segments.
US$ or US DOLLARS means the lawful currency of the United States of
America.
1.2 INTERPRETATION
In this Agreement, unless the contrary intention appears:
(a) Clauses 1.2, 1.3, 1.4 and 1.5 of the Trust Deed apply to this
Agreement as if incorporated in this Agreement, except that
all references in those Clauses to DEED and TRUSTEE are
replaced with AGREEMENT and LENDER respectively; and
(b) references to time are to Melbourne time.
1.3 TRUST DEED
(a) Each party to this Agreement acknowledges and agrees that the
financial accommodation made available or to be made available
to the Borrower by the Lender under this Agreement is and
shall be made available on the terms and conditions contained
in the Trust Deed in addition to the terms and conditions of
this Agreement.
(b) Unless defined otherwise in this Agreement, terms defined in
the Trust Deed bear the same meaning when used in this
Agreement.
(c) Subject to Clause 35(b), the Lender confirms that it will be
bound by any amendment agreed to, or waiver given in respect
of, the provisions of the Trust Deed by the Trustee in
accordance with the instructions of the Majority Creditors or
all Creditors as the case requires in accordance with the
terms of the amendment or waiver as if it were party to the
relevant amendment agreement or had given the relevant waiver.
1.4 REPAYMENT AND PREPAYMENT
A reference to REPAYMENT or PREPAYMENT of all or part of a Segment or
the Principal Outstanding, is to payment to the Lender in US dollars of
the relevant amount.
1.5 PRINCIPAL
References to PRINCIPAL or PRINCIPAL AMOUNT mean in relation to a
Segment, the principal amount of that Segment or part.
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
2. COMMITMENT
--------------------------------------------------------------------------------
Subject to this Agreement the Lender shall make available the
Commitment to the Borrower but so that on the date of a drawing of any
Segment the aggregate Original Dollar Amount of all outstanding
Segments will not exceed the Commitment.
3. ADVANCE
--------------------------------------------------------------------------------
3.1 DRAWDOWN NOTICE
Unless otherwise agreed, a request by the Borrower for a Segment may be
made by telephone, shall be made prior to 11.00am (New York time) two
Business Days before the date on which the Segment is to be made
available (which must be a Business Day) and shall be followed as soon
as practicable by a Drawdown Notice substantially in the form of
Annexure A from the Borrower to the Lender. Any telephone request shall
contain the details required in the Drawdown Notice and shall be
irrevocable.
3.2 PRINCIPAL AMOUNT OF ADVANCE
The principal amount of each Segment Drawdown Notice must be a minimum
of US$5,000,000 or such other amount as the Lender may agree and an
integral multiple of US$1,000,000.
3.3 ADVANCE OF SEGMENT
Subject to this Agreement, when the Borrower requests a Segment in a
Drawdown Notice, the Lender through its Lending Office must make
available the Segment to the Borrower in Same Day Funds by 11.00am
(local time in the place of payment) on the relevant Drawdown Date to
the account specified in the Drawdown Notice.
4. CANCELLATION OF COMMITMENT
--------------------------------------------------------------------------------
4.1 CANCELLATION DURING AVAILABILITY PERIOD
Foster's Brewing Group may from time to time on giving not less than
two Business Days' prior irrevocable notice to the Lender cancel all or
part of the Undrawn Commitment. If part, unless the Lender otherwise
agrees, such part will be in a minimum of US$5,000,000 and an integral
multiple of US$1,000,000.
4.2 AT END OF AVAILABILITY PERIOD
At the close of business (Melbourne time) on the last day of the
Availability Period the Commitment will be cancelled.
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
5. PURPOSE
--------------------------------------------------------------------------------
The Borrower undertakes to use the net proceeds of all accommodation
provided under this Agreement for:
(a) funding the acquisition by Foster's Brewing Group (or any
wholly owned subsidiary of Foster's Brewing Group) of Beringer
and fees and costs associated with such acquisition;
(b) refinancing any existing Financial Indebtedness of Beringer or
Beringer's subsidiaries and fees and costs associated with
such refinancing; and
(c) for other purposes related directly or indirectly to the
acquisition of Beringer.
6. REVIEW
--------------------------------------------------------------------------------
The parties may agree in writing to extend the Repayment Date at any
time during the Availability Period.
7. CONDITIONS PRECEDENT
--------------------------------------------------------------------------------
7.1 CONDITIONS PRECEDENT TO DRAWING
The right of the Borrower to give a Drawdown Notice and the obligations
of the Lender under this Agreement are subject to the condition
precedent that the Lender receives all of the following in each case in
form and substance satisfactory to the Lender:
(a) (VERIFICATION CERTIFICATE): A certificate in relation to each
of the Borrower and Foster's Brewing Group substantially in
the form of Annexure B (with the attachments (in form and
substance satisfactory to the Lender) referred to).
(b) (EXECUTED COUNTERPARTS): Counterparts of this Agreement duly
executed by the Borrower and Foster's Brewing Group.
(c) (CREDITOR ACCESSION DEED): A copy of the Creditor Accession
Deed executed by the Lender and Foster's Brewing Group.
(d) (APPROVED FACILITY CERTIFICATE): An Approved Facility
Certificate in respect of this Agreement.
(e) (LAWYERS' OPINIONS - THIS AGREEMENT): An opinion of:
(i) Arthur Robinson & Hedderwicks and Jones, Day, Reavis
& Pogue, Australian and US lawyers respectively for
the Borrower and Foster's Brewing Group; and
(ii) Mallesons Stephen Jaques, lawyers for the Lender,
in relation to this Agreement.
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
(f) (AUTHORISATIONS): Copies of any necessary Authorisations for
the provision of financial accommodation under this Agreement.
(g) (CONDITIONS PRECEDENT SATISFIED UNDER BRIDGING FACILITY
AGREEMENT): Written confirmation from Foster's Brewing Group
that all the conditions precedent under the Bridging Facility
Agreement have been satisfied or waived.
(h) (CONFIRMATION OF AMENDMENTS TO BILATERALS): A letter from
Foster's Brewing Group to the Lender confirming the following
details:
(i) with respect to the Facility Agreement dated 10 May
1991 (as amended) between the Borrower, Commonwealth
Bank of Australia and others, the repayment date will
be extended to `30 November 2004' and the commitment
will be increased from `A$125,000,000' to
`A$225,000,000';
(ii) with respect to the Facility Agreement dated on or
about the date of this Agreement between Foster's
Brewing Group, Australia and New Zealand Banking
Group Limited and others, the commitment will be
increased from `A$150,000,000' to `A$250,000,000';
(iii) with respect to the Facility Agreement dated 21 March
1991 (as amended) between the Borrower, Westpac
Banking Corporation and others, the repayment date
will be extended to `30 September 2005' and the
commitment will be increased from `A$200,000,000' to
`A$250,000,000';
(iv) with respect to the Facility Agreement dated 8 May
1996 (as amended) between the Borrower, Bank of
America National Association and others, the
repayment date will be extended to `31 August 2002'
and the commitment will be increased from
`Cdn$60,000,000' to `Cdn$147,000,000'; and
(v) with respect to the Facility Agreement dated 27
February 1991 (as amended) between the Borrower,
National Australia Bank Limited and others, the
repayment date will be extended to `30 September
2005' and the commitment will be increased from
`A$300,000,000' to `A$500,000,000'.
7.2 CONDITIONS PRECEDENT TO EACH SEGMENT
The obligation of the Lender to make available a Segment is subject to
the following conditions precedent:
(a) (TRUST DEED CONDITIONS PRECEDENT - NO INCREASE IN PRINCIPAL
AMOUNT): to the extent only that the provision of the Segment
would result in an increase in the aggregate principal amount
of all Segments outstanding on that day, that each of the
conditions precedent set out in paragraphs (i) to (vi) (both
inclusive) of Clause 5.7(a) of the Trust Deed (subject to
Clause 5.7(c) of the Trust Deed) applies as if set out in this
Agreement and has been satisfied (on the
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
basis that any reference to the FUNDING CREDITOR in
any of those paragraphs is a reference to the Lender);
(b) (TRUST DEED CONDITIONS PRECEDENT - NO PROVISION OR ROLLOVER OF
ACCOMMODATION): that each of the conditions precedent in
paragraphs (a) to (d) (both inclusive) of Clause 5.8 of the
Trust Deed applies as if set out in this Agreement and has
been satisfied (on the basis that any reference to the FUNDING
CREDITOR in any of those paragraphs is a reference to the
Lender); and
(c) (NO DEFAULT): that no Event of Default or Potential Event of
Default will result from the provision of the financial
accommodation.
8. SELECTION OF FUNDING PERIODS
--------------------------------------------------------------------------------
(a) Subject to the subsequent provisions of this Clause, Funding
Periods selected by the Borrower will be of a period of not
less than 30 days and not more than 185 days or, if requested
by the Borrower, such other period as the Lender may agree.
(b) If a Funding Period would otherwise end on a day which is not
a Business Day, that Funding Period will be extended to the
next Business Day in the same calendar month or, if none, the
preceding Business Day.
(c) No Funding Period may extend beyond the Repayment Date.
(d) If the Borrower fails to select Funding Periods complying with
this Clause the Lender may vary any Drawdown Notice to ensure
compliance.
9. INTEREST
--------------------------------------------------------------------------------
9.1 INTEREST RATE AND NOTIFICATION
(a) Interest shall accrue from day to day on each Segment for each
Funding Period at the rate per annum determined by the Lender
to be the aggregate of the Margin and LIBOR for such Funding
Period.
(b) If applicable, the Lender shall notify the Borrower of the
interest rate determined by it under this Clause as soon as it
is ascertained.
9.2 BASIS OF CALCULATION OF INTEREST
Interest under Clause 9.1 shall accrue from day to day and shall be
computed on the basis of the actual number of days elapsed and a year
of 360 days.
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
10. REPAYMENT
--------------------------------------------------------------------------------
10.1 REPAYMENT
Subject to Clause 10.2, the Borrower must repay each Segment together
with accrued interest on the last day of its Funding Period.
10.2 NETTING OFF
If the Borrower requests a new Segment on the last day of a Funding
Period of an old Segment, then only the net amount between:
(a) the funds required to be provided by the Lender for the
account of the Borrower in relation to that new Segment; and
(b) the funds payable by the Borrower for the account of the
Lender by way of repayment of the old Segment,
need to be paid or made available, as the case may be.
10.3 FINAL REPAYMENT
On the Repayment Date, the Borrower must repay in full the Principal
Outstanding of each Segment together with all other amounts owing by it
to the Lender under this Agreement.
11. PREPAYMENTS
--------------------------------------------------------------------------------
11.1 VOLUNTARY PREPAYMENTS
(a) Subject to this Clause, if it gives at least 5 days' prior
notice to the Lender the Borrower may prepay all or part of
the Principal Outstanding without premium or penalty except
for payments required pursuant to Clause 17.2(d). That notice
must contain details of the relevant Segment, amount and date
of repayment, and is irrevocable. The Borrower must prepay in
accordance with it.
(b) Unless the Lender agrees otherwise, prepayment of part only
may only be made in a principal amount of a minimum of
US$5,000,000 and an integral multiple of US$1,000,000.
(c) Amounts prepaid under this Clause 11.1 may be redrawn.
11.2 SPECIAL PREPAYMENTS
The Borrower and Foster's Brewing Group acknowledge that the Borrower
may be required to prepay the Principal Outstanding in accordance with
Clause 5.5 of the Trust Deed and that the Lender has entered into this
Agreement and made the Commitment available in reliance on Clause 5.5
of the Trust Deed.
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
11.3 INTEREST, BREAK AND OTHER COSTS
The Borrower must pay any interest accrued on any amount prepaid under
this Agreement at the time of such prepayment, including all amounts
which are payable by it under Clause 17 as a result of the prepayment.
11.4 LIMITATION ON PREPAYMENTS
The Borrower may not prepay all or any part of the Principal
Outstanding except in accordance with this Agreement.
12. PAYMENTS AND TAXATION
--------------------------------------------------------------------------------
12.1 TIME AND PLACE
Unless this Agreement provides otherwise, the Borrower and Foster's
Brewing Group must make all payments due from it under this Agreement
in the applicable currency in Same Day Funds not later than 11.00 a.m.
(local time) on the due date to the account specified by the relevant
Lender from time to time in respect of such currency. The account
specified by the Lender must be located in the jurisdiction of its
Lending Office.
12.2 NO DEDUCTION
Unless this Agreement provides otherwise, the Borrower and Foster's
Brewing Group must make all payments required from it under this
Agreement without set-off or counterclaim and without deduction or
withholding, whether on account of Taxes (except to the extent the
Borrower or Foster's Brewing Group (as the case may be) is obliged by
law to deduct Taxes), but without prejudice to Clause 12.5 or
otherwise.
12.3 PAYMENT TO BE MADE ON BUSINESS DAY
Whenever any payment becomes due under this Agreement on a day which is
not a Business Day, the due date shall be the next Business Day in the
same calendar month or, if none, the preceding Business Day and
interest shall be adjusted accordingly.
12.4 APPROPRIATION WHERE INSUFFICIENT MONEYS AVAILABLE
Amounts received by the Lender shall be appropriated as between
principal, interest and other amounts as the Lender determines, if the
amounts paid are less than the amounts due. Any such appropriation
shall override any appropriation made by the Borrower or Foster's
Brewing Group.
12.5 ADDITIONAL PAYMENTS
Whenever the Borrower or Foster's Brewing Group is obliged to make a
deduction or withholding in respect of Tax from any payment to be made
under this Agreement, then it shall:
(a) promptly pay the full amount required to be deducted or
withheld to the appropriate Governmental Agency;
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
(b) within 30 days of the end of the month in which the deduction
or withholding is made, deliver to the Lender official
receipts or other documentation acceptable to the Lender
evidencing payment of such amount; and
(c) unless the Tax is an Excluded Tax, indemnify on demand the
Lender against such Tax and any amounts recoverable from the
Lender in respect of such Tax, and pay for the account of the
Lender such additional amounts as the Lender may determine to
be necessary to ensure that it receives when due a net amount
(after payment of any Taxes in respect of such additional
amounts) in the relevant currency or currencies equal to the
full amount which it would have received had such a deduction
or withholding not been made. The Borrower and Foster's
Brewing Group waive any statutory right to recover any such
amounts from the Lender.
12.6 SURVIVAL OF OBLIGATIONS
The obligations of the Borrower and Foster's Brewing Group under this
Clause shall survive the repayment of any Principal Outstanding and the
termination of any Relevant Document.
12.7 REIMBURSEMENT
(a) For so long as no Event of Default entitling the Lender or the
Trustee to make a declaration under Clause 5.2(A) or (B) of
the Trust Deed has occurred and is subsisting, whenever:
(i) the Borrower or Foster's Brewing Group pays any
additional amount to, for the account of, or on
behalf of, the Lender in respect of amounts payable
under Clause 12.5 (ADDITIONAL TAXES); and
(ii) the Lender in its absolute discretion decides that it
has received any clearly identifiable credit against,
or relief or remission for the amount or repayment
of, any Tax paid or payable by it in respect of or
calculated with reference to the deduction or
withholding giving rise to such Additional Tax,
then to the extent that it determines that a payment to the
Borrower or Foster's Brewing Group (as the case may be) can be
made without prejudice to the retention of the amount of such
credit, relief, remission or repayment, the Lender shall
promptly pay to the Borrower or Foster's Brewing Group (as the
case may be) the amount of any consequent reduction in its
Tax.
(b) Nothing in paragraph (a) shall interfere with the right of the
Lender to arrange its Tax affairs in any manner it thinks fit.
In particular, the Lender shall not be under any obligation to
claim any credit, relief, remission or repayment in respect of
the amount of any Additional Taxes in priority to any other
credit, relief, remission or repayment available to it or to
disclose to the Borrower or Foster's Brewing Group any
information regarding its tax affairs or tax computations.
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
13. CHANGES IN LAW
--------------------------------------------------------------------------------
13.1 INCREASED COSTS
Whenever the Lender determines that it or any of its related bodies
corporate is affected by any change (occurring after the date of this
Agreement) in, any making (occurring after the date of this Agreement)
of, or any change (occurring after the date of this Agreement) in the
interpretation or application by any Governmental Agency of, any law,
official directive or request (including, without limitation, with
respect to Taxation (other than an Excluded Tax) or reserve, liquidity,
capital adequacy, special deposit or similar requirements) and that as
a result:
(a) the effective cost to the Lender of making, funding or
maintaining any Segment or its Commitment is in any way
increased;
(b) any amount paid or payable to or received or receivable by the
Lender or the effective return to the Lender or any of its
related bodies corporate under or in respect of this Agreement
or the Trust Deed is in any way reduced;
(c) the return of the Lender or any of its related bodies
corporate on the capital which is or becomes directly or
indirectly allocated by the Lender or the related body
corporate to any Segment or its Commitment is in any way
reduced; or
(d) in any way, in so far as the law, official directive or
request relates to or affects its Commitment, any Segment,
this Agreement or the Trust Deed, the overall return on
capital of the Lender or any of its related bodies corporate
is reduced,
(including, without limitation, by reason of the Lender or any of its
related bodies corporate being restricted in its capacity to enter
other transactions, or being required to make a payment or foregoing or
earning reduced interest or other return on any capital or on any
amount calculated by reference in any way to, or allocating capital to,
the amount of any Segment, its Commitment or to any other amount paid
or payable or received or receivable under this Agreement or the Trust
Deed) then:
(e) (when it has calculated the effect of the foregoing and the
amount to be charged) the Lender shall notify Foster's Brewing
Group; and
(f) subject to Clause 13.2(a) and (b), the Borrower shall pay for
the account of the Lender after demand is made the amount
certified by an Authorised Officer of the Lender which shall
compensate it or its relevant related body corporate (as the
case may be) for such increased cost or such reduction.
This Clause applies with respect to official directives or requests
whether or not having the force of law and, if not having the force of
law, the observances of which is in accordance with the practice of
responsible bankers or financial institutions in the country concerned.
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
13.2 MINIMISATION
(a) (NOTICE): At the time of making such demand, the Lender shall
deliver to Foster's Brewing Group a certificate specifying
(without any obligation to disclose any details relating to
its business and Tax affairs):
(i) the event by reason of which it is entitled to make
such demand;
(ii) the calculation (in reasonable detail) on which such
demand is based; and
(iii) specify a date for payment which is at least 14 days
after the date the demand is given.
(b) (LIMIT ON RETROSPECTIVITY): A demand under paragraph (a) may
not include a demand for compensation for an increase or
reduction suffered more than 60 days before the Lender
notified the Borrower of the change in law that has resulted
in the increase or reduction;
(c) (NO DEFENCE): If the Lender or (if applicable) the relevant
related body corporate has acted in good faith it shall not be
a defence that any cost, reduction or payment or loss of tax
credit referred to in Clause 12 or this Clause could have been
avoided.
(d) (NEGOTIATION): At the request of the Borrower or Foster's
Brewing Group, the Lender shall negotiate with the Borrower
with a view to finding a means by which any such cost,
reduction or payment or loss of tax credit or the effect of
any unlawfulness or impracticability referred to in Clause
13.4 can be minimised, including changing its Lending Office.
13.3 SURVIVAL OF OBLIGATIONS
The obligations of the Borrower under this Clause shall survive the
repayment of the Principal Outstanding and the termination of this
Agreement.
13.4 ILLEGALITY
If the making of, or a change in the interpretation or application by
any Governmental Agency of, any law or treaty makes it unlawful or
impracticable for the Lender to make, fund or maintain any Segment
then:
(i) the Lender may, by notice to the Borrower, terminate its
obligation to the Borrower to provide that Segment;
(ii) if required by the law or treaty, or if necessary to prevent
or remedy a breach of the law or treaty, the Borrower will
prepay the relevant Segment together with all fees and other
amounts payable under the relevant Segment; and
(iii) such prepayment shall be made immediately, but if in the
opinion of the Lender delay in prepayment is permitted by, or
will not cause a
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
14. REPRESENTATIONS, WARRANTIES, COVENANTS AND EVENTS OF DEFAULT
--------------------------------------------------------------------------------
breach of, the law or treaty, it shall be made on the latest
permitted day.
14.1 REPRESENTATIONS AND WARRANTIES
(a) The Borrower and Foster's Brewing Group acknowledge that the
Lender enters into this Agreement in reliance on the
representations and warranties contained in Clause 3 of the
Trust Deed.
(b) The Borrower and Foster's Brewing Group acknowledge that the
representations and warranties in Clause 3 of the Trust Deed
are repeated for the benefit of the Lender in accordance with
Clause 3.4 of the Trust Deed.
14.2 LENDER REPRESENTATION AND WARRANTY
The Lender represents and warrants to the Borrower and Foster's Brewing
Group that it, in good faith, is not relying on any MARGIN STOCK (as
defined in Regulation U) as collateral in the extension or maintenance
of the financial accommodation provided for in this Agreement.
14.3 TRUST DEED COVENANTS
(a) The Borrower and Foster's Brewing Group acknowledge that they
have given the undertakings in the Trust Deed for the benefit
of the Lender and the Lender is entering into this Agreement
in reliance on those undertakings.
(b) Foster's Brewing Group undertakes to use its reasonable
efforts to ensure that, once it has directly or indirectly
acquired at least 50% of the shares in Beringer (the INITIAL
SHARES) it acquires as soon as practicable all of the
remaining issued shares in Beringer. This does not oblige
Foster's Brewing Group to acquire the remaining shares on
terms which are materially different from the terms upon which
it directly or indirectly acquires the Initial Shares.
(c) In the event that the Borrower provides a Drawdown Notice
under Clause 3, Foster's Brewing Group will not, and will
ensure that the issuer under the Exchangeable Bond Issue does
not, cancel, reduce materially amend or delay the Exchangeable
Bond Issue or delay the receipt of any proceeds from that
issue.
(d) Foster's Brewing Group undertakes to ensure that the
Exchangeable Bond Issue does not at any time become an
Approved Facility.
(e) Foster's Brewing Group must not increase the price per
Beringer share under its takeover offer above US$55.75.
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
14.4 EVENTS OF DEFAULT
(a) The list of Events of Default and the rights of the Lender as
a Creditor as a consequence of an Event of Default are set out
in Clause 5 of the Trust Deed.
(b) The Borrower and Foster's Brewing Group acknowledge that the
Lender enters into this Agreement in reliance on the rights
conferred under Clause 5 of the Trust Deed and on the basis
that it is and will be entitled to exercise those rights as a
CREDITOR.
15. INTEREST ON OVERDUE AMOUNTS
--------------------------------------------------------------------------------
15.1 DEFAULT INTEREST
(a) Subject to Clause 15.6, the Borrower must pay interest on all
amounts due and payable by it under or in relation to this
Agreement (including such amounts due for payment under Clause
5 of the Trust Deed) and unpaid (including interest payable
under this Clause) in the currency of the relevant amount.
Interest under this Clause shall accrue on a daily basis at
the rate provided in Clause 15.2, subject to Clause 15.6, from
the date such amount is due and payable.
(b) All amounts payable by the Borrower to the Lender under this
Clause 15.1 shall be payable on demand by the Lender.
15.2 RATE
Such default interest shall accrue, subject to Clause 15.5, from the
due date up to the date of actual payment, before and (as a separate
and independent obligation) after judgment at a rate determined by the
Lender to be the aggregate of 2% per annum and the highest of:
(a) the rate (if any) applicable to such amount immediately prior
to the due date; and
(b) the sum of the Margin and the arithmetic mean (rounded
upwards, if necessary, to four decimal places) of the rates
quoted to the Lender no later than two Business Days after the
date of default (or, as appropriate, the second Business Day
before the expiry of the funding period referred to below) by
leading banks in the London Interbank Market (as selected by
the Lender), for the making of deposits in the currency
concerned of an amount comparable to the overdue amount on
call or for such funding period not exceeding three months as
the Lender may determine from time to time (or, if no such
quotes are available, such equivalent rate as the Lender may
determine).
15.3 BASIS OF CALCULATION
Interest under Clause 15.2 (a) shall be calculated on the basis of a
year of 360 days.
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
15.4 CAPITALISATION
Unless demanded more frequently, interest under this Clause 15 shall
capitalise quarterly.
16. FEES
--------------------------------------------------------------------------------
The Borrower must pay to the Lender the establishment and facility fees
in the amounts and at the times set out in the letters from the Lender
to Foster's Brewing Group (which have been accepted by an Authorised
Officer of Foster's Brewing Group).
17. INDEMNITIES
--------------------------------------------------------------------------------
17.1 INDEMNITY
Each indemnity in this Agreement shall:
(a) be a continuing obligation;
(b) constitute a separate and independent obligation of the party
giving the indemnity from its other obligations under this
Agreement; and
(c) survive termination of this Agreement.
17.2 NATURE OF INDEMNITY
Each of the Borrower and Foster's Brewing Group (jointly and severally)
must indemnify the Lender, on demand against any loss, cost or expense
the Lender may sustain or incur as a consequence of:
(a) the occurrence of any Event of Default or Potential Event of
Default;
(b) any statement in, or omission or alleged omission from, any
information or loan proposal or any document or information
prepared or authorised by it, or any claim in respect of any
of the foregoing (including legal costs on a full indemnity
basis);
(c) any Segment requested in a Drawdown Notice not being provided
for any reason (including, without limitation, failure to
fulfil any condition precedent but excluding any default by
the Lender);
(d) the Lender receiving payments of principal in respect of any
Segment other than on the last day of the relevant Funding
Period or any period under Clause 15.2 for any reason,
including, without limitation, prepayment in accordance with
this Agreement, but excluding default by the Lender; or
(e) any investigative, administrative or judicial proceeding
(whether or not the Lender shall be designated a party
thereto) brought or threatened relating to or arising out of
this Agreement or any actual or proposed use of the proceeds
of the Segments hereunder.
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
Without limitation such indemnity shall cover the amount determined by
the Lender as being incurred by reason of the liquidation or
re-employment of deposits or other funds acquired or contracted for the
Lender to fund or maintain any such Segment or amount (including loss
of margin).
Nothing in this Clause prevents the Borrower or Foster's Brewing Group
from taking legal action against the Lender for amounts received under
paragraph (e) on the grounds that the loss indemnified resulted from
gross negligence or wilful misconduct of the Lender.
18. CURRENCY INDEMNITY
--------------------------------------------------------------------------------
18.1 GENERAL
Whenever:
(a) any amount payable by the Borrower or Foster's Brewing Group
under or in respect of this Agreement is received or recovered
by the Lender in a currency (the PAYMENT CURRENCY) other than
the currency under which the relevant amount was payable under
this Agreement (the AGREED CURRENCY) for any reason (including
without limitation as result of any judgment or order); and
(b) the amount actually received by the Lender in accordance with
its normal practice by converting the Payment Currency into
the Agreed Currency is less than the relevant amount of the
Agreed Currency,
then each of the Borrower and Foster's Brewing Group (jointly and
severally) shall, to the fullest extent that it is permitted to do so,
as an independent obligation and notwithstanding any such judgment,
indemnify the Lender on demand against the deficiency.
18.2 LIQUIDATION
In the event of the Liquidation of the Borrower or Foster's Brewing
Group, each of the Borrower and Foster's Brewing Group (jointly and
severally), shall, to the fullest extent that it may effectively do so,
indemnify the Lender on demand against any deficiency arising or
resulting from any variation as between:
(a) the exchange rate actually applied for the purposes of such
Liquidation in converting into another currency any amount
expressed in one currency due or contingently due under this
Agreement or under any judgment or order relating to any
Relevant Document; and
(b) the exchange rate at which the Lender in accordance with its
normal practice would be able to purchase the last-mentioned
currency with the first-mentioned currency as at the final
date or dates for the filing of proof or other claim in the
Liquidation or the nearest available prior date including any
premiums and costs of exchange payable in connection with the
purchase.
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
19. CONTROL ACCOUNTS
--------------------------------------------------------------------------------
The accounts kept by the Lender constitute sufficient evidence unless
the contrary is proved of the amount at any time due from the Borrower
under this Agreement.
20. EXPENSES
--------------------------------------------------------------------------------
On demand the Borrower must reimburse and indemnify the Lender for the
expenses (which must be reasonable in the case of paragraph (a)) of the
Lender in relation to:
(a) the preparation, execution and completion of this Agreement
and any subsequent consent, approval, waiver or amendment
under or to this Agreement; and
(b) any enforcement of this Agreement, or the preservation of any
rights, under this Agreement,
including, in each case, legal costs and expenses on a full indemnity
basis (which must be reasonable in the case of paragraph (a)) (together
with GST with respect to the expenses referred to in this Clause
(subject to the receipt by the Borrower of a valid tax receipt)).
21. STAMP DUTIES
--------------------------------------------------------------------------------
(a) The Borrower must pay all stamp, transaction, registration and
similar Taxes (including fines, penalties and interest) that
may be payable or determined to be payable in relation to the
execution, delivery, performance or enforcement of this
Agreement or any payment or receipt or any other transaction
contemplated by this Agreement.
(b) Those Taxes include financial institutions duty, debits tax or
other Taxes payable by return and Taxes passed on to the
Lender by a bank or financial institution.
(c) The Borrower indemnifies the Lender against any liability
resulting from delay or omission to pay those Taxes, except to
the extent the liability results from failure by the Lender to
pay any Tax after having been put in funds to do so by the
Borrower.
22. SET-OFF
--------------------------------------------------------------------------------
22.1 SET-OFF
The Borrower and Foster's Brewing Group authorise the Lender (but
without obligation on the part of the Lender) if an Event of Default
which would entitle the Lender (as a Creditor) or the Trustee to make a
declaration under Clause 5.2(A) or (B) of the Trust Deed is subsisting
to apply any credit balance in any currency (whether or not matured) in
any of its accounts with
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
any branch of the Lender in or towards satisfaction of any sum at any
time due and payable by it to the Lender under or in relation to any
Relevant Document.
22.2 CURRENCY EXCHANGE
The Lender may effect such currency exchanges as are appropriate to
implement such set-off.
23. WAIVERS, REMEDIES CUMULATIVE
--------------------------------------------------------------------------------
(a) No failure to exercise or delay in exercising any right, power
or remedy under this Agreement operates as a waiver. A single
or partial exercise of any right, power or remedy does not
preclude any other or further exercise of that or any other
right, power or remedy.
(b) The rights, powers and remedies provided to the parties are in
addition to, and do not exclude or limit, any right, power or
remedy provided by law or equity or by any agreement.
24. SEVERABILITY OF PROVISIONS
--------------------------------------------------------------------------------
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction is ineffective as to that jurisdiction to the extent
of the prohibition or unenforceability. That does not invalidate the
remaining provisions of this Agreement nor affect the validity or
enforceability of that provision in any other jurisdiction.
25. MORATORIUM LEGISLATION
--------------------------------------------------------------------------------
To the full extent permitted by law all legislation that at any time
directly or indirectly:
(a) lessens, varies or affects in favour of the Borrower or
Foster's Brewing Group any obligation under this Agreement; or
(b) delays, prevents or prejudicially affects the exercise by the
Lender of any right, power or remedy conferred by this
Agreement,
is excluded from this Agreement.
26. SURVIVAL OF REPRESENTATIONS
--------------------------------------------------------------------------------
All representations and warranties in this Agreement will survive the
execution and delivery of this Agreement and final payment of the
Principal Outstanding.
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
27. ASSIGNMENTS
--------------------------------------------------------------------------------
27.1 ASSIGNMENT BY BORROWER AND FOSTER'S BREWING GROUP
Neither the Borrower or Foster's Brewing Group may assign or transfer
any of its rights or obligations under this Agreement without the prior
written consent of the Lender.
27.2 ASSIGNMENT BY LENDER
The Lender may assign or transfer all or any of its rights or
obligations under this Agreement to another bank or financial
institution at any time if:
(a) any necessary prior Authorisation is obtained;
(b) Foster's Brewing Group has given its prior consent to such
transfer or assignment, which consent:
(i) shall not be unreasonably withheld;
(ii) shall not be required in the case of a transfer or
assignment to a Related Company of the Lender which
will provide the Commitment through lending offices
located in the same jurisdiction as the Lending
Office specified in the Schedule; and
(iii) will be deemed to have been given if no response is
received within 15 days of request for such consent;
(c) the assignee or transferee first executes and delivers to
Foster's Brewing Group an agreement (in form and substance
reasonably satisfactory to Foster's Brewing Group) under which
the assignee or transferee agrees to be bound by this
Agreement and, if it is not a Creditor, a Creditor Accession
Deed.
27.3 DISCLOSURE
The Lender may with the prior consent of Foster's Brewing Group (which
must not unreasonably withheld or delayed) disclose to a proposed
assignee, transferee or sub-participant information relating to any
member of the Group or furnished in connection with this Agreement.
27.4 CHANGE OF LENDING OFFICE
The Lender may not change any of its Lending Offices unless:
(a) it gives prior notice to Foster's Brewing Group and consults
with Foster's Brewing Group; and
(b) its new Lending Office is in the same jurisdiction as the
relevant existing Lending Office.
27.5 NO INCREASED COSTS
Notwithstanding anything to the contrary in this Agreement, if the
Lender assigns or transfers its rights and/or obligations under this
Agreement or changes its Lending Office, neither the Borrower nor
Foster's Brewing
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
Group Limited will not be required to pay any net increase in the
aggregate amount of costs, Taxes, fees or charges that is a consequence
of the assignment, transfer or change of Lending Office.
28. NOTICES
--------------------------------------------------------------------------------
28.1 NOTICES
Any notice, demand, consent or other communication (a NOTICE) given
under this Agreement:
(a) must be in writing and signed by an Authorised Officer of the
sender;
(b) must be delivered to the intended recipient by prepaid post
(where posted to an address in another country, by registered
airmail) or by hand or fax to the address or fax number set
out in the Schedule to this Agreement or the address or fax
number last notified by the intended recipient to the sender;
and
(c) will be taken to be duly given or made in the case of delivery
in person or by post, facsimile transmission or cable, when
delivered, but if the result of the foregoing is that a Notice
would be taken to be given or made on a day that is not a
business day in the place to which the Notice is sent or is
later than 4.00pm (local time) it will be taken to have been
duly given or made at the commencement of business on the next
business day in that place.
28.2 TO BORROWER OR FOSTER'S BREWING GROUP
Any notice required to be given to the Borrower or Foster's Brewing
Group shall deemed given if given to Foster's Brewing Group in
accordance with Clause 28.1.
29. AUTHORISED OFFICERS
--------------------------------------------------------------------------------
Each of the Borrower and Foster's Brewing Group irrevocably authorises
the Lender to rely on a certificate by any person purporting to be its
director or secretary as to the identity and signatures of its
Authorised Officers and warrants that those persons have been
authorised to give notices and communications under or in connection
with this Agreement.
30. GOVERNING LAW AND JURISDICTION
--------------------------------------------------------------------------------
This Agreement is governed by the laws of Victoria. The parties submit
to the non-exclusive jurisdiction of courts exercising jurisdiction
there in connection with matters concerning this Agreement.
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
31. COUNTERPARTS
-------------------------------------------------------------------------------
This Agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
32. ACKNOWLEDGEMENT BY BORROWER AND FOSTER'S BREWING GROUP
--------------------------------------------------------------------------------
Each of the Borrower and Foster's Brewing Group confirm that:
(a) it has not entered into this Agreement in reliance on, or as a
result of, any statement or conduct of any kind of or on
behalf of the Lender or any Related Company of the Lender
(including, without limitation, any advice, warranty,
representation or undertaking); and
(b) neither the Lender nor any Related Company of the Lender is
obliged to do anything (including, without limitation,
disclose anything or give advice),
except as expressly set out in the Relevant Documents.
33. GST
--------------------------------------------------------------------------------
Notwithstanding any other provision of this Agreement:
(a) if GST is payable in relation to a supply made under or in
connection with this Agreement the party making the supply
may, in addition to any amount or consideration payable under
this 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 this 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 the Borrower is required under this 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
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
Indemnified Party 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.
34. ATTORNEYS
--------------------------------------------------------------------------------
Each attorney executing this Agreement states that he has no notice of
the revocation of this power of attorney.
35. AMENDMENTS
--------------------------------------------------------------------------------
(a) The Borrower irrevocably authorises Foster's Brewing Group to
agree with the 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. The
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.
(b) No amendment to Clauses 10.1 of the Trust Deed as set out in
paragraph 14 of Schedule 2 of the Bridging Facility Agreement
is permitted without the prior written consent of the Lender.
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
SCHEDULE
PARTICULARS OF PARTIES
--------------------------------------------------------------------------------
BORROWER
Address for correspondence Foster's Brewing Group Limited
77 Southbank Boulevard
Southbank Victoria 3147
Fax: 03 9645 7226
Contact: Company Secretary
Copy to:
FOSTER'S BREWING GROUP
Address for correspondence Foster's Brewing Group Limited
77 Southbank Boulevard
Southbank Victoria 3147
Fax: 03 9645 7226
Contact: Company Secretary
LENDER
UBS AG, STAMFORD BRANCH
Lending Office: 667 Washington Boulevard
Stamford CT 06912 USA
Address for correspondence (if (as above)
different):
Fax: 1 203 719 3888
Contact: Ms Marie Haddad
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
EXECUTED as an agreement.
BORROWER
--------------------------------------------------------------------------------
SIGNED for and on behalf of FBG TREASURY (USA)
INC. by its attorney:
/s/ Domenic Panaccio
---------------------------------------------------
ATTORNEY'S SIGNATURE
Domenic Panaccio
---------------------------------------------------
PRINT NAME
FOSTER'S BREWING GROUP
--------------------------------------------------------------------------------
SIGNED for and on behalf of FOSTER'S BREWING GROUP LIMITED by its attorney:
/s/ Domenic Panaccio
---------------------------------------------------
ATTORNEY'S SIGNATURE
Domenic Panaccio
---------------------------------------------------
PRINT NAME
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
LENDER
--------------------------------------------------------------------------------
SIGNED for and on behalf of UBS AG, STAMFORD BRANCH by its attorney:
/s/ Richard John Hoskins
---------------------------------------------------
ATTORNEY'S SIGNATURE
Richard John Hoskins
---------------------------------------------------
PRINT NAME
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
ANNEXURE A
DRAWDOWN NOTICE
--------------------------------------------------------------------------------
To: UBS AG, Stamford Branch
DRAWDOWN NOTICE
We refer to the Facility Agreement dated [#] (the FACILITY AGREEMENT).
Under Clause 7 of the Facility Agreement:
1. we give you irrevocable notice that we wish to draw on [#] (the
DRAWDOWN DATE);
[NOTE: DRAWDOWN DATE IS TO BE A BUSINESS DAY.]
2. the aggregate principal amount to be drawn is US$[#];
[NOTE: AMOUNT IS TO COMPLY WITH THE LIMITS IN CLAUSE 2.]
3. the Funding Period requested is [#];
[NOTE: LENGTH OF FUNDING PERIOD IS TO COMPLY WITH CLAUSE 8.]
4. we request that the proceeds be remitted to account number [#] at [#];
5. we acknowledge that pursuant to Clause 3.4 of the Trust Deed, the
representations and warranties in Clause 3 of the Trust Deed are
repeated on the date of this notice with respect to the facts and
circumstances then existing.
Definitions in the Facility Agreement apply when used in this Drawdown Notice.
For and on behalf of
FBG TREASURY (USA) INC.
By: [Authorised Officer]
Dated:
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
ANNEXURE B
VERIFICATION CERTIFICATE
--------------------------------------------------------------------------------
To: UBS AG, Stamford Branch
LOAN FACILITY
I [*name] am a [director]/[secretary]/[assistant secretary]+ of
[Borrower/Foster's Brewing Group Limited] of [*address] (the COMPANY).
I refer to the loan agreement (the FACILITY AGREEMENT) dated [#] between you,
the Company and [Borrower/Foster's Brewing Group Limited].
Definitions in the Facility Agreement or the FBG Group Financing Trust Deed
apply in this Certificate.
I CERTIFY as follows:
Attached to this Certificate are true, complete and up to date copies of each of
the following:
(a) the [Certificate of Incorporation and by laws/constitution] of the
Company (marked "A");
(b) a duly executed power of attorney granted by the Company authorising
the execution on behalf of the Company of the Facility Agreement
(marked "B"). That power of attorney has not been revoked by the
Company and remains in full force and effect;
(c) extract of minutes of a meeting of the directors or of a committee of
directors of the Company approving execution of the Facility Agreement
and appointing attorneys for the purpose of the Facility Agreement
(marked "C"). Such resolutions have not been amended, modified or
revoked and are in full force and effect;
(d) a true copy of a list containing the names, positions and signatures of
the Authorised Officers of the Company.
<PAGE>
ARTHUR ROBINSON
LOAN AGREEMENT & HEDDERWICKS
-------------------------------------------------------------------------------
SIGNED:
---------------------------------------------------
[DIRECTOR/SECRETARY/ASSISTANT SECRETARY]+
Dated:
[+ STRIKE OUT WHICHEVER IS NOT APPLICABLE]
