EXHIBIT 12
REVOLVING CREDIT AGREEMENT
Revolving Credit Agreement (the "Agreement"), dated as of December 5,
2000 between Apilanlehti International III Netherlands B.V., a
Netherlands corporation ("Borrower"), and Shamrock Holdings of California,
Inc., a California corporation ("Lender").
WHEREAS, Borrower has requested that Lender enter into this Agreement
under which Borrower can, subject to Lender's approval in each case, borrow
amounts from time to time, up to an aggregate of AUD $250,000,000.
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties to this Agreement agree as follows:
Section 1. Definitions:
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The following terms, when used herein, shall have the meanings set
forth below:
"Business Day" shall mean any day on which banks in the City of Los
Angeles, California, are open for business generally.
"Cash" shall have the meaning given it under U.S. Generally Accepted
Accounting Principles;
"Commitment" shall mean the obligation of Lender to make Loans to
Borrower up to an aggregate outstanding principal amount not to exceed AUD
$250,000,000, as such amount may be reduced from time to time or terminated
hereunder.
"Default" shall mean an event or act which, with the giving of notice
and/or the lapse of time, would become an Event of Default.
"Drawdown Date" shall mean in respect of any Loan, the date on which
such Loan is made to Borrower.
"Electronic Transmission" means any form of communication not directly
involving the physical transmission of paper that creates a record that may
be retained, retrieved, and reviewed by a recipient thereof, and that may
be directly reproduced in paper form by such a recipient through an
automated process;
"Event of Default" shall mean any of the events listed in Section 7
hereof.
"Loan" shall mean any loan made or to be made to Borrower pursuant to
Section 2 hereof.
"Loan Documents" shall mean this Agreement and the Note, in each case
as from time to time amended or supplemented.
"Maturity Date" shall mean the earlier of the date on which all Loans
become due and payable pursuant to Section 5, Section 6 or Section 7
hereof.
"Notice" shall mean notice of Borrower given in writing, by telephone
or by Electronic Transmission;
"Obligations" shall mean all indebtedness, obligations, and
liabilities of Borrower to Lender, existing on the date of this Agreement
or arising thereafter, direct or indirect, joint or several, absolute or
contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, operation of law or otherwise, arising or
incurred under this Agreement or any other Loan Document or in respect of
any of the Loans or the note or other instruments at any time evidencing
any thereof.
"Request" shall mean a Notice by Borrower to Lender requesting that
Lender advance a specific amount of funds to Borrower under this Agreement.
Each Request shall state that Borrower will supply Lender with other
reasonable information requested by Lender with respect to the Request.
Section 2. Credit Facility.
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(a) Upon the terms and subject to the conditions of this
Agreement, Lender agrees to lend to Borrower such sums that Borrower may
request, from the date hereof until but not including the Maturity Date,
provided that the sum of the outstanding principal amount of all Loans
(after giving effect to all amounts requested) shall not exceed the
Commitment at any time.
(b) Borrower shall send Lender a Request not later than 5:00 p.m.
Los Angeles time at least three Business Days prior to the Drawdown Date
(which must be a Business Day) of the Loan being requested. Lender will
notify Borrower by 5:00 p.m., Los Angeles time, on the second Business Day
after receipt of the Request, as to whether or not it will fund such a
loan. If the Commitment is then in effect, Lender shall advance to the
Borrower or directly to such other party or parties as may be specified in
the Request, on behalf of Borrower, the amounts indicated in the Request.
Each advance by Lender on behalf of Borrower shall be deemed a Loan by
Lender and will accrue interest beginning on the date the advance is made.
Lender will maintain a complete and accurate record of all Loans under this
Agreement.
(c) The obligation of Borrower to repay to Lender the outstanding
principal amount of the Loans and interest accrued thereon shall be
evidenced by a promissory note in the aggregate principal amount of (i) AUD
$250,000,000 or (ii) such lesser amount as indicated as outstanding on the
grid schedule annexed thereof, executed and delivered by Borrower and
payable to the order of Lender, in substantially the form of Exhibit 1
hereto (the "Note").
(d) On the date hereof and as a condition to Lender's obligation
to make any Loans, Borrower shall execute and deliver to Lender the Pledge
Agreement, of even date herewith, by and between Borrower and Lender,
pursuant to which Borrower's obligations hereunder shall be secured by a
pledge of all of the assets of Borrower except for Borrower's retained
earnings.
Section 3. Interest.
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Borrower shall pay interest on the outstanding principal amount of the
Loans at a rate per annum equal to the 30-day Australian Bank ▇▇▇▇ Bid Rate
plus 1.75%. Accrued interest shall be due and payable on the last Business
Day of the month and, unless otherwise instructed, will be added to the
balance of the Loans on that date.
Section 4. Limited Recourse.
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Repayment of the Loans shall be the obligation of Borrower. Lender
shall be entitled to recourse against Borrower for performance and
satisfaction of all obligations of Borrower hereunder, but only to the
extent of all of Borrower's assets except for Borrower's retained earnings.
Section 5. Optional Prepayment.
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Borrower may, at its option, prepay at any time all or any portion of
the Loans then outstanding (including all related interest), without
premium or penalty.
Section 6. Mandatory Prepayment.
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(a) Principal of and interest on the Loans shall be due and
payable when, and on each occasion that, Borrower's Cash balance reaches
AUD $500,000 but only to the extent, in each event, of such Cash.
(b) If at any time any Event of Default (as hereinafter defined)
occurs and is continuing, the entire principal amount of this Note then
outstanding, shall become due and payable (including all interest thereon)
without further notice or demand.
Section 7. Events of Default; Remedies.
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An Event of Default shall mean any one of the following events
(whatever the reason for such Event of Default and whether it shall be
effected voluntarily or involuntarily, by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation
of any governmental body):
(a) a Default by Borrower in the performance of any agreement
contained in the Loan Documents;
(b) Borrower shall (i) apply for or consent to the appointment of
a receiver, trustee, custodian or liquidator of any of its property, (ii)
admit in writing its inability to pay its debts as they mature, (iii) make
a general assignment for the benefit of creditors, (iv) be adjudicated a
bankrupt or insolvent or be the subject of an order for relief under
applicable bankruptcy law, or (v) file a voluntary petition in bankruptcy,
or a petition or an answer seeking an arrangement with creditors or to take
advantage of any bankruptcy, insolvency, readjustment of debt or
liquidation law or statute, or an answer admitting the material allegations
of a petition filed against it in any proceeding under any such law; or
(c) an order, judgment or decree shall be entered, without the
application, approval or consent of Borrower, by any court of competent
jurisdiction, approving a petition appointing a receiver, trustee,
custodian or liquidator of all or a substantial part of the assets of
Borrower, and such order, judgment or decree shall continue unstayed and in
effect for a period of thirty (30) days.
Upon the occurrence of an Event of Default, Lender may declare the
then outstanding principal amount of the Loans (and all interest thereon)
to be forthwith due and payable, whereupon such amounts shall become and be
forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by Borrower.
No right or remedy herein conferred upon or reserved to Lender is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of
any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or
remedy.
Section 8. Assignment.
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Borrower may not assign its rights or obligations under this Agreement
to any person or entity without the express written consent of Lender.
Lender and its assigns may freely assign their rights and obligations under
this Agreement to any person or entity.
Section 9. Notice.
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All notices and other communications required or permitted to be given
hereunder shall be in writing and shall be deemed to have been duly given
if delivered personally or sent by certified mail, return receipt
requested, first-class postage prepaid to the below listed parties at the
following address:
if to Lender:
Shamrock Holdings of California, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
if to Borrower:
Apilanlehti International III Netherlands B.V.
c/o Equity Trust Co. NV
Officia I, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
The Netherlands
or to such other address as either party shall have last designated by
notice to the other party. All such notices and communications shall be
deemed to have been received on the date of receipt thereof.
Section 10. Amendments.
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No amendment of the Loan Documents shall be effective unless in
writing and signed by Borrower and Lender.
Section 11. Waiver.
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Borrower, for itself and its legal representatives and successors,
hereby expressly waives presentment, demand, notice, protest, and all other
demands or notices in connection with the delivery, acceptance,
endorsement, performance, default, or enforcement of the Loan Documents.
Section 12. Effect of Delay or Omission.
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No delay or omission of Lender in exercising any right or remedy
hereunder shall constitute a waiver of any such right or remedy.
Section 13. Costs of Collection.
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Borrower shall pay all costs and expenses of collection, including
reasonable attorneys' fees, incurred or paid by Lender in enforcing the
Loan Documents or the obligations hereby evidenced, to the extent permitted
by law.
Section 14. Choice of Law.
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The Loan Documents shall be construed and enforced in accordance with
the laws of the State of California without regard to the conflicts of law
rules thereof.
Section 15. Headings.
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The section headings hereof are for convenience of reference only, and
shall not be deemed to construe or affect the meaning of any of the
provisions hereof.
IN WITNESS WHEREOF, the undersigned have duly executed this Revolving
Credit Agreement as of the date first above written.
APILANLEHTI INTERNATIONAL III
NETHERLANDS B.V.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Director
SHAMROCK HOLDINGS OF CALIFORNIA, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its: Executive Vice President
EXHIBIT 1
REVOLVING LOAN
PROMISSORY NOTE
AUD $250,000,000 or such lesser December 5, 2000
principal amount set forth
in Schedule A annexed hereto
FOR VALUE RECEIVED, Apilanlehti International III Netherlands B.V.
(the "Borrower") HEREBY PROMISES to pay to the order of Shamrock
Holdings of California, Inc., a California corporation (the "Lender"), at
its office at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or to such
other entity or at such other place as Lender may designate in writing, the
principal sum of (1) TWO HUNDRED FIFTY MILLION AUSTRALIAN DOLLARS (AUD
$250,000,000) or (2) such lesser amount as may be outstanding from time to
time as indicated on the grid schedule annexed hereto as Schedule A which
is a part of this Note, with interest thereon or on the amount thereof from
time to time outstanding, to be computed, as hereinafter provided, until
the said principal sum shall be fully paid. Such principal sum, or the
amount thereof outstanding, with all accrued and unpaid interest, shall be
due and payable on the Maturity Date, or earlier on the terms and
conditions of the Revolving Credit Agreement (the "Credit Agreement"),
dated as of December 5, 2000 by and between Borrower and Lender. Terms not
defined herein shall have the meanings ascribed to them in the Credit
Agreement.
The outstanding principal balance under this Note shall bear interest
at a rate per annum equal to the 30-day Australian Bank ▇▇▇▇ Bid Rate plus
1.75%. Accrued interest shall be due and payable on the last Business Day
of the month and, unless otherwise instructed, will be added to the balance
of the Loans on that date.
All payments of principal and interest shall be made in lawful money
of Australia in immediately available funds and shall be due and payable as
set forth in, and in accordance with, the terms and conditions of the
Credit Agreement.
Borrower agrees that all advances of the principal amount and all
payments made on account of the principal amount be endorsed by Lender on
Schedule A hereto. All notations by Lender on Schedule A hereto shall serve
as conclusive evidence of all such advances and payments in the absence of
evidence of manifest error.
Borrower may not assign this Note to any person.
Borrower waives presentment for payment, notice of dishonor, protest,
notice of protest, and all other demands or notices in connection with the
delivery, performance, default or enforcement of this Note.
This Note shall be governed by, and construed in accordance with, the
laws of the State of California, without regard to conflict of laws
principles. None of the terms or provisions of this Note may be waived or
amended except as Lender may consent thereto in writing.
APILANLEHTI INTERNATIONAL III
NETHERLANDS B.V.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Director
SCHEDULE A
GRID
REVOLVING LOAN NOTE
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AMOUNT OF
AMOUNT PRINCIPAL PAID UNPAID PRINCIPAL NOTATION
DATE OF LOAN OR PREPAID AMOUNT OF LOAN NOTE MADE BY
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