Exhibit 27
LOAN EXTENSION, CROSS-COLLATERALIZATION AND AMENDMENT AGREEMENT
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THIS LOAN EXTENSION, CROSS-COLLATERALIZATION AND AMENDMENT AGREEMENT
("Agreement") is made this 9th day of August, 2002 by and among Shamrock
Holdings of California, Inc. ("SHOC"), Xxxxxxx Xxxxx Xxxxxx Inc. ("SSB")
and Xxxxxxx Xxxxx Barney Australia Securities Pty Ltd ("SSB Australia").
RECITALS
WHEREAS, SHOC and SSB are parties to the Agreement, dated July
28, 1997, with respect to SHOC's margin account with SSB (the "U.S.
Margin Agreement");
WHEREAS, SHOC and SSB are parties to the Pledge Agreement, dated
as of October 29, 1997, between SHOC and SSB (the "U.S. Pledge
Agreement") pursuant to which SHOC has pledged certain securities
described therein and held by SSB (the "U.S. Collateral") in favor of
SSB as collateral security for loans made pursuant to the U.S. Margin
Agreement;
WHEREAS, SHOC and SSB Australia are parties to the Margin Lending
Facility Agreement, dated on or after the date of this Agreement, with
respect to SHOC's margin account with SSB Australia (the "Australian
Margin Agreement"), pursuant to which a charge over future property is
created (the "Australian Collateral") in favor of SSB Australia as
collateral security for loans made pursuant to the Australian Margin
Agreement;
WHEREAS, SSB and SSB Australia have agreed to make one or more
extensions of credit to SHOC in an amount not to exceed (U.S.) $16
million;
WHEREAS, subject to the terms and conditions contained herein and
in consideration of the agreement of SSB and SSB Australia to extend
(U.S.) $16 million of additional credit to SHOC, the parties have
agreed to cause the U.S. Collateral and the Australian Collateral to
cross-collateralize the obligations of SHOC to SSB under the U.S.
Margin Agreement and the obligations of SHOC to SSB Australia under
the Australian Margin Agreement;
WHEREAS, with respect to each of the U.S. Collateral and
Australian Collateral (as both terms are hereafter defined), the
equity maintenance level (i.e., the market value of the U.S.
Collateral and Australian Collateral net of the amount of credit
extended and outstanding in each case) may not fall below forty (40)
percent of the total market value of the U.S. and Australian
Collateral respectively (such deficit referred to herein as the
"Shortfall"); and
WHEREAS, the parties have agreed to amend the U.S. Margin
Agreement and confirm the Australian Margin Agreement on the terms set
forth herein;
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, receipt of which is hereby acknowledged, the
parties mutually agree as follows:
AGREEMENT
Section 1. Extension of Additional Credit
SSB and SSB Australia severally agree to extend additional credit to
SHOC in the form of one or more advances ("Advances") in the amount of
(U.S.) $16 million in the aggregate. Such Advances shall be in addition to
the credit previously extended to SHOC by SSB and SSB Australia ("Prior
Credit"), and shall bear interest at the same annual percentage as the
Prior Credit, it being understood and agreed that the Advances shall not
limit the ability of SHOC to request and obtain future margin loans under
each of the Australian Margin Agreement and the U.S. Margin Agreement in
accordance with the applicable maintenance percentage thereunder, but only
to the extent expressly permitted by SSB or SSB Australia.
Section 2. Cross-Collateralization
(a) For so long as: (1) SSB Australia agrees that the margin
percentage for making loans pursuant to the Australian Margin Agreement
shall be equal to fifty (50) percent of the aggregate market value of the
securities in SHOC's portfolio held by SSB Australia, (2) SSB Australia
shall not have instituted a margin call, or shall not require a margin call
to be instituted, under the Australian Margin Agreement unless a Shortfall
has occurred, (3) SSB agrees that the margin percentage for making loans
pursuant to the U.S. Margin Agreement shall be equal to fifty (50) percent
of the aggregate market value of the U.S. Collateral and (4) SSB shall not
have instituted a margin call, or shall not require a margin call to be
instituted, under the U.S. Margin Agreement unless a Shortfall has
occurred, then:
(i) all of the U.S. Collateral, whether now existing or
hereafter acquired, shall be, and hereby is, pledged as
security for the loan obligations of SHOC under the
Australian Margin Agreement and, subject to Section 3(b)
below, if there shall exist any margin call under the
Australian Margin Agreement pursuant to which SSB Australia
is entitled to enforce its rights with respect to the
Australian Collateral, SSB Australia shall also be entitled
to enforce such rights against the U.S. Collateral provided
such enforcement shall not contravene any rulings or
regulations issued pursuant to Regulation T of the Board of
Governors of the Federal Reserve System or any rulings or
regulations of the New York Stock Exchange; and
(ii) all of the Australian Collateral will be pledged in
accordance with the Australian Margin Agreement.
(b) SHOC hereby represents and warrants that, except for a
November 23, 1999 margin loan agreement with SSB Australia and the
cross-collateralization described in this Agreement, neither it nor Trefoil
has granted a security interest in the U.S. Collateral or the Australian
Collateral which is senior to or pari passu with the interests of SSB and
SSB Australia, as applicable, under the U.S. Margin Agreement, U.S. Pledge
Agreement or the Australian Margin Agreement.
(c) SSB Australia agrees to use commercially reasonable efforts
to enforce any remedies that it may have against the Australian Collateral
(which includes liquidation of all or part of such Australian Collateral)
until at least 25% of such Australian Collateral (as such percentage shall
be determined on a class-by-class basis based upon the number of securities
then-outstanding for each class of securities constituting Australian
Collateral and the number of such class of securities against which SSB
Australia is exercising its remedies) shall have been exhausted prior to
enforcing any of its rights against any U.S. Collateral; provided, however,
that if and to the extent that SSB Australia shall in good faith determine
that regulatory issues or market circumstances, if any, exist which make
the enforcement of SSB Australia's remedy against the non-U.S. Collateral
commercially impracticable or unlawful, or materially adverse to SSB
Australia's financial interest, prior to enforcing its rights against the
U.S. Collateral, then the parties hereby agree that, under such
circumstances, SSB and SSB Australia shall promptly meet and confer, and
reasonably cooperate, with SHOC during the five (5) business day period
described in Section 3(b) below to determine how the Australian Collateral
and the U.S. Collateral may be disposed of in a manner that is mutually
satisfactory to each party (it being understood that, in the event that no
such determination can be reached, SSB and SSB Australia shall have the
authority to decide how to dispose of such Australian and U.S. Collateral).
Section 3. Amendments.
(a) Each of SHOC and SSB agrees that, notwithstanding anything to
the contrary contained in the U.S. Margin Agreement, the U.S. Pledge
Agreement or any other agreement between SHOC and SSB with respect to the
margin account described in the U.S. Margin Agreement (the "U.S. Margin
Documents"), (i) SHOC shall have, to the extent permitted by applicable
law, five business days (which shall mean a week day upon which commercial
banks in New York and the New York Stock Exchange are open for business)
following the receipt by SHOC of written notice of any margin call with
respect to any obligations under the U.S. Margin Documents to cause the
underlying loans to be in compliance with the applicable margin ratios and
during such five business days, (ii) SHOC shall be entitled, among other
things, to instruct SSB or SSB Australia to sell any U.S. Collateral or any
Australian Collateral to cause such underlying loans to be in compliance
with the applicable equity maintenance percentage, and (iii) if, at the
closing of any business day during such five business day period, the
aggregate market value of the U.S. Collateral is of an amount that causes
the aggregate amount of loans outstanding pursuant to the U.S. Margin
Documents to comply with the applicable equity maintenance percentage, then
any default existing as a result of such loans shall be deemed cured and
any margin call issued with respect to such loans shall automatically be
deemed revoked. Each of U.S. Margin Documents is hereby deemed to be
amended in a manner consistent with the foregoing sentence, and in the
event of any inconsistency between or among any U.S. Margin Agreement and
the foregoing sentence, the terms of the foregoing sentence shall prevail.
(b) Each of SHOC and SSB Australia agree that, notwithstanding
anything to the contrary contained in the Australian Margin Agreement or
any other agreement between SHOC and SSB Australia with respect to the
margin account described in the Australian Margin Agreement (the
"Australian Margin Documents"), (i) SHOC shall have, to the extent
permitted by applicable law, five business days (which shall mean a week
day upon which commercial banks in Sydney and the Australian Stock Exchange
are open for business) following the receipt by SHOC of written notice of
any margin call under the Australian Margin Documents to cause the
underlying loans to be in compliance with the applicable margin ratios and
during such five business days, (ii) SHOC shall be entitled, among other
things, to instruct SSB or SSB Australia to sell any U.S. Collateral or any
Australian Collateral to cause such underlying loans to be in compliance
with the applicable equity maintenance percentage, and (iii) if, at the
closing of any business day during such five business day period, the
aggregate market value of the Australian Collateral is of an amount that
causes the aggregate amount of loans outstanding pursuant to the Australian
Margin Documents to comply with the applicable equity maintenance
percentage, then any default existing as a result of such loans shall be
deemed cured and any margin call issued with respect to such loans shall
automatically be deemed revoked. Each of the Australian Margin Documents is
hereby deemed to be amended in a manner consistent with the foregoing
sentence, and in the event of any inconsistency between or among any
Australian Margin Agreement and the foregoing sentence, the terms of the
foregoing sentence shall prevail.
Section 4. Governing Law.
This Agreement shall in all respects be interpreted, construed and
governed by and in accordance with the laws of the State of New York,
disregarding such State's conflict of law provisions which may require the
application of the law of another jurisdiction.
Section 5. Severability.
If and to the extent that any court of competent jurisdiction holds
any provisions (or any part thereof) of this Agreement to be invalid or
unenforceable, such holding shall in no way affect the validity of the
remainder of this Agreement.
Section 6. Counterparts.
This Agreement may be executed and delivered in one or more
counterparts, and by the parties in separate counterparts, each of which
when executed and delivered shall be deemed to be an original but all of
which taken together shall constitute one and the same agreement.
Section 7. Ratification and Reaffirmation.
Except for the amendments set forth in this Agreement, the provisions
of each of the U.S. Margin Agreement, the U.S. Pledge Agreement and the
Australian Margin Agreement shall remain in full force and effect, and SHOC
hereby ratifies and affirms its obligations under each of the foregoing
agreements, as amended by this Agreement.
IN WITNESS WHEREOF, SHOC, SSB and SSB Australia have each caused
this Agreement to be executed and delivered as of the date first written
above.
SHAMROCK HOLDINGS OF CALIFORNIA, INC.
By: /s/ Xxxxxxx X. Gold
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Name: Xxxxxxx X. Gold
Title: Chief Financial Officer
XXXXXXX XXXXX XXXXXX INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
XXXXXXX XXXXX BARNEY AUSTRALIA SECURITIES PTY LTD
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
Title: Director
